Stacey Scott v. Larry Furrow and Keller Williams Legacy Group, 04-15-00074-CV

Background

Stacey Scott purchased Lot 2 (1104 Peggy Lane) in May 2006; Furrow (broker/agent) and Keller Williams were the listing broker/agent. Scott later purchased adjoining Lot 3 in 2007.
Scott claims she was induced to believe she acquired waterfront access (and later asserts exclusive ownership) in Lot 1 (a waterfront/park lot) as part of the Lot 2/3 transactions. Furrow and Keller Williams were not involved in the Lot 3 purchase.
In March 2011 Scott emailed an attorney expressing concerns about waterfront access; she filed suit more than two years later (2013). Her deposition repeatedly stated she believed she was purchasing a legal interest in waterfront access, not exclusive access.
Defendants moved for traditional summary judgment (May 2014), asserting statutes of limitations and that Scott's later affidavit contradicted her deposition (sham-affidavit doctrine). The trial court granted summary judgment, severed claims against Furrow/Keller Williams, and later awarded defendants $95,179 in attorney’s fees (final judgment Feb. 24, 2015).
Scott appealed; appellees argue: (1) all claims are time-barred under the two- and four-year statutes because the title/public-records put Scott on inquiry notice, and (2) Scott’s affidavit contradicts her deposition and cannot create a fact issue. Appellees also assert entitlement to contractual and DTPA-based attorney’s fees; Scott failed to preserve complaints about the fee award.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Scott's claims are barred by limitations	Scott invokes the discovery rule; says she discovered the problem in 2013 and the DTPA toll applies	Public records and her 2011 email put her on inquiry notice; reasonable diligence would have discovered the title issue earlier	Summary judgment: claims time-barred (limitations not tolled)
Whether Scott can rely on her later affidavit to defeat summary judgment	Affidavit asserts she expected/exclusively intended to acquire a one-half interest in Lot 1 and that exclusivity was misrepresented	Deposition testimony contradicts affidavit; sham-affidavit doctrine prohibits creating a fact issue by contradicting prior sworn testimony	Summary judgment: affidavit disregarded as sham; no fact issue
Whether defendants are entitled to recover attorney's fees on their counterclaim	Scott contests basis for fee award and raises procedural/contention issues	Defendants claim contractual fee provision and DTPA §17.50(c) sanctions for groundless/bad-faith claims; Scott failed to preserve appellate complaints	Summary judgment: award of attorney's fees upheld; appellate complaints forfeited (no preserved error); remand not required absent preserved error
Whether trial court erred procedurally (e.g., severance, interlocutory/final characterization)	Scott challenged characterization and sought new trials on interlocutory/final judgments	Defendants note severance preserved counterclaim; Scott’s new-trial motions did not preserve the fee-related issues adequately	Trial court's actions affirmed as proper; Scott failed to timely and specifically preserve issues for appeal

Key Cases Cited

Ojeda de Toca v. Wise, 748 S.W.2d 449 (Tex. 1988) (recorded public notice does not always defeat DTPA claims)
Exxon Mobil Chem. Co. v. Ford, 235 S.W.3d 615 (Tex. 2007) (recorded instruments in chain of title generally give constructive notice for limitations/inquiry notice)
Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903 (Tex. 1982) (purchaser charged with constructive notice of title records)
NRC, Inc. v. Pickhardt, 667 S.W.2d 292 (Tex. App.-Texarkana 1984) (purchaser has constructive notice of chain-of-title recitals for limitations)
HECI Exploration Co. v. Neel, 982 S.W.2d 881 (Tex. 1998) (information in public records is discoverable; discovery rule limits)
Farroux v. Denny's Restaurants, Inc., 962 S.W.2d 108 (Tex. App.-Houston [1st Dist.] 1997) (sham-affidavit doctrine: affidavit that contradicts earlier testimony without explanation is disregarded)
Cantu v. Preacher, 53 S.W.3d 5 (Tex. App.-San Antonio 2001) (affidavit-deposition contradictions analyzed to determine sham-affidavit application)
Salinas v. Gary Pools, Inc., 31 S.W.3d 333 (Tex. App.-San Antonio 2000) (distinguishes title issues from non-title DTPA matters for notice and discovery rule)