D&J Real Estate Services, Inc. D/B/A Re/Max Premier Group and Stella Bitner v. Greg L. Perkins and Jessica J. Perkins
05-13-01670-CV
| Tex. App. | Jun 4, 2015Background
- Buyers Greg and Jessica Perkins were represented by realtor Stella Bitner under a buyer’s representation agreement while purchasing a house in Anna, Texas.
- The Perkinses’ repair addendum requested a professional mold inspection; the seller crossed out and initialed the mold-inspection line (i.e., declined to perform a professional test).
- The seller performed a rudimentary mold test (petri dishes) and told Greg he would provide results; Bitner told the buyers that the seller’s test was "sufficient" and later forwarded the seller’s email saying the test produced no mold, but never provided receipts/documentation she had promised.
- The Perkinses closed after signing forms acknowledging they had inspected the property; soon after moving in they discovered extensive mold and sued the seller, Bitner, and others; they later settled with the other parties and proceeded to trial solely against Bitner.
- A jury found Bitner liable for common-law fraud, statutory fraud, negligent misrepresentation, negligence, and breach of fiduciary duty, but found no DTPA violation; the trial court entered judgment and later amended it to reflect a settlement credit.
- On appeal the Fifth Court of Appeals reversed, holding the evidence was legally insufficient to support the jury’s findings and rendered judgment that the Perkinses take nothing on their claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for fraud (common-law and statutory) | Perkinses: Bitner represented mold testing was done/adequate and they relied to their detriment. | Bitner: Seller declined professional testing; buyers initialed the crossed-out amendment; no evidence Bitner knew any representation was false. | Reversed — no evidence that Bitner made false representation; insufficiency sustained. |
| Sufficiency for negligent misrepresentation | Perkinses: Bitner supplied false information about mold testing in course of business, inducing reliance. | Bitner: No false information about an existing fact; seller performed some test and buyers knew seller declined professional test. | Reversed — insufficient evidence plaintiff relied on a false existing fact. |
| Sufficiency for negligence and breach of fiduciary duty | Perkinses: Bitner breached duties by failing to procure/provide promised mold documentation and misrepresenting testing. | Bitner: No actionable misrepresentation; absent a false representation, no duty breach shown. | Reversed — negligence and fiduciary-duty claims fail without proof of a false representation/duty breach. |
| Trial-court amendment and timeliness (cross-appeal) | Perkinses: Amended judgment entered after trial court’s plenary power expired, so error. | Bitner: Her post-verdict motion was a JNOV motion (not a motion for new trial) so trial court retained power and amendment was timely. | Affirmed — court held Bitner’s JNOV motion did not become a new-trial motion; amended judgment timely. |
Key Cases Cited
- Croucher v. Croucher, 660 S.W.2d 55 (Tex. 1983) (standard for no-evidence/insufficiency review)
- EMC Mortgage Co. v. Jones, 252 S.W.3d 857 (Tex. App.—Dallas 2008) (no-evidence review principles)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (credit favorable evidence; disregard contrary evidence unless compelled)
- Gen. Capital Grp. Beteligungsberatung GMBH v. AT&T, 407 S.W.3d 507 (Tex. App.—Dallas 2013) (elements of common-law fraud)
- McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787 (Tex. 1999) (elements of negligent misrepresentation)
- Bank of Tex., N.A. v. Glenny, 405 S.W.3d 310 (Tex. App.—Dallas 2013) (negligent misrepresentation requirements)
- AKB Hendrick, L.P. v. Musgrave Enters., Inc., 380 S.W.3d 221 (Tex. App.—Dallas 2012) (false information must concern an existing fact for negligent misrepresentation)
- IHS Cedars Treatment Ctr. v. Mason, 143 S.W.3d 794 (Tex. 2004) (elements of negligence)
- Jones v. Blume, 196 S.W.3d 440 (Tex. App.—Dallas 2006) (elements of breach of fiduciary duty)