362 S.W.3d 842
Tex. App.2012Background
- Millers purchased land in El Paso County in 2006 and closed with Lawyers Title, receiving a title policy and an Atcon survey.
- The Atcon survey inaccurately showed a single 15-foot easement at the rear, while the property actually had a 10-foot utility easement and a 20-foot drainage easement (30 feet total).
- Lawyers Title’s title commitment and title policy described the correct easements, creating an inconsistency with the survey.
- Millers relied on the Atcon survey to plan pool, deck, and spa construction; encroachment eventually occurred on the drainage easement.
- In 2007, a municipal district demanded removal of encroaching structures; a subsequent survey corrected the easement boundaries.
- The Millers sued Lawyers Title for negligent misrepresentation and deceptive trade practices; the trial court granted summary judgment in favor of Lawyers Title, which the court affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Negligent misrepresentation—whether Lawyers Title affirmatively misrepresented easement information. | Miller contends title company delivered the incorrect survey and incorporated it by reference into the policy. | Lawyers Title did not prepare or vouch for the survey and the commitment/policy correctly described easements. | No misrepresentation; essential element lacking; summary judgment for Lawyers Title. |
| Deceptive Trade Practices Act claim—whether delivery of the faulty survey supports DTPA liability. | Delivery of the faulty survey and reliance on it support a DTPA claim. | No misrepresentation or reliance by Lawyers Title; survey was not prepared or vouched by it. | DTPA claim fails; summary judgment affirmed. |
Key Cases Cited
- McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787 (Tex. 1999) (elements of negligent misrepresentation; contract considerations)
- Airborne Freight Corp. v. C.R. Lee Enter., Inc., 847 S.W.2d 289 (Tex.App.-El Paso 1992) (negligent misrepresentation; contract relation nuances)
- Allstate Ins. Co. v. Watson, 876 S.W.2d 145 (Tex.1994) (DTPA elements; justifiable reliance and causation)
- First Title Co. of Waco v. Garrett, 860 S.W.2d 74 (Tex.1993) (duty to discover/disclose information by title company; representations)
- Cook Consultants, Inc. v. Larson, 700 S.W.2d 231 (Tex.App.-Dallas 1985) (survey, title policy, and misrepresentation considerations)