Penny Jones v. Maxine Coppinger, 642 S.W.3d 51

Background

Divorce decree required sale of the spouses’ 169‑acre primary residence; parties signed a listing agreement with Heritage Texas Country Properties, signed by listing agent Maxine Coppinger, listing price $1.5M and 6% commission.
Buyer offered ~$1.2M; Jones’s attorney proposed a $1.235M counteroffer (with 15% mineral interests conveyed) and parties executed a sales contract with a June 24, 2016 closing.
On June 15, 2016 the buyer’s agent informed Coppinger the buyer needed to close June 24 for a 1031 exchange; Coppinger emailed the parties that same day that the closing was "chiseled in granite."
Jones later sued Coppinger (fraud by nondisclosure, breach of fiduciary duty, breach of contract, DTPA), alleging Coppinger failed to disclose the 1031 exchange (and, later, communications about an IRS lien) and that nondisclosure caused a lower sale price; Jones was represented by counsel throughout.
Trial court granted Coppinger’s no‑evidence and traditional summary judgment; awarded Coppinger $22,565 in attorney’s fees and $3,727.36 in costs under the listing agreement, and (erroneously, per this opinion) ordered Jones’s attorney also liable and threatened contempt for nonpayment.
Court of Appeals affirmed summary judgment and the fee award to Coppinger, but struck the order holding Jones’s attorney personally liable and removed the contempt language.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Whether summary judgment was improper because material fact issues exist on nondisclosure and damages	Jones: Coppinger failed to disclose 1031 exchange (and later IRS communications), which prevented better negotiation and caused economic loss	Coppinger: She learned of 1031 exchange on June 15 and disclosed it that day; Jones presented no evidence of causation or provable damages	Held: Affirmed summary judgment — Jones produced no evidence that nondisclosure caused provable economic damages; damages theory was speculative
2. Whether Jones’ amended factual allegations (IRS emails) preclude summary judgment	Jones: New facts show additional nondisclosures and create fact issues	Coppinger: The added facts still rest on the same speculative damages theory; motion attacking damages covered that theory	Held: Amended allegations did not preclude summary judgment because they depend on same unsupported damages theory
3. Whether Coppinger was a "prevailing party" entitled to contractual attorney’s fees	Jones: Fee clause applies only to the named broker, not to Coppinger (a licensed sales agent)	Coppinger: She signed as broker’s associate/authorized agent and acted for the broker; she is covered by the contract	Held: Trial court properly awarded contractual fees to Coppinger as prevailing party under the listing agreement
4. Whether the trial court could order Jones’s attorney to pay fees or threaten contempt for nonpayment	Jones: No legal basis to hold her attorney personally liable or to enforce fee payment by contempt	Coppinger: (did not support holding opposing counsel liable)	Held: Court erred — no authority to impose contractual fee liability on opposing counsel or collect fees by contempt; those provisions were stricken

Key Cases Cited

G & H Towing Co. v. Magee, 347 S.W.3d 293 (Tex. 2011) (exception allowing summary judgment on unchallenged claims when they share a common, dispositive element)
King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) (more‑than‑a‑scintilla standard for no‑evidence summary judgment)
Bombardier Aerospace Corp. v. SPEP Aircraft Holdings, LLC, 572 S.W.3d 213 (Tex. 2019) (damages element requirement for fraud by nondisclosure)
First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214 (Tex. 2017) (breach of fiduciary duty may allow disgorgement distinct from actual damages)
J & D Towing, LLC v. Am. Alternative Ins. Corp., 478 S.W.3d 649 (Tex. 2016) (no recovery for damages that are too remote or speculative)
Unifund CCR Partners v. Weaver, 262 S.W.3d 796 (Tex. 2008) (issues not raised to trial court in written response waived on appeal)
Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015) (general rule that attorneys are not liable to opposing parties for representation absent statute or sanction authority)
Wallace v. Briggs, 348 S.W.2d 523 (Tex. 1961) (attorney’s fees are a debt and may not be collected by contempt)