569 S.W.3d 176
Tex. App.2018Background
- Reggie Lee and Sonya Van Duren bought a Royal Lakes home in Nov. 2013 from Aloy and Gesare Chife; the Chifes financed part of the sale (promissory note with installment payments).
- After ~2 years the Van Durens discovered interior water intrusion, widespread wood rot, and positive mold tests; they sued the Chifes (fraud by nondisclosure, negligent misrepresentation, statutory real-estate fraud, DTPA).
- The Van Durens also sued the sellers’ broker Stacy Mathews and his company for negligence, negligent misrepresentation, fraud by nondisclosure, statutory fraud, and breach of fiduciary duty (claims also based on Mathews’ role in a later sale of the Van Durens’ prior home at Crescent Cove).
- The sales contract for Royal Lakes contained a present-condition/"in its present condition" clause (an as‑is type clause); the Van Durens admit they had the right to inspect but did not hire an inspector.
- Defendants moved for traditional and no-evidence summary judgment; the trial court granted summary judgment for the Chifes and for Mathews/Stacy, Inc., then severed the Chifes’ counterclaims (breach of notes/deeds of trust) which remain pending.
- This court: (1) dismissed the Van Durens’ appeal as to the Chifes’ partial summary judgment for lack of jurisdiction because the Chifes’ counterclaims remain unresolved; and (2) affirmed summary judgment in favor of Mathews and Stacy, Inc.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Finality / jurisdiction | Van Durens appealed both summary judgments. | Chifes had live counterclaims; partial SJ not final. | Appeal as to Chifes dismissed for lack of jurisdiction. |
| Enforceability of present-condition (as‑is) clause | Clause doesn’t expressly disclaim reliance; it was surreptitiously inserted or induced by fraud/concealment, so unenforceable. | Clause "in its present condition" is an as‑is clause; it was negotiated and negates reliance/causation; no evidence of exceptions. | Clause is an enforceable as‑is clause; it negates reliance/causation and bars negligence/negligent‑misrep/fraud claims against Mathews. |
| Fraudulent inducement / broker liability for seller disclosure | Mathews misrepresented a July 2013 inspection, knew disclosures were false, and failed to update or disclose the balcony leak; thus he induced the present‑condition acceptance. | Broker not liable for seller’s Disclosure Notice except where broker knows it is false; no evidence Mathews knew of an existing unrepaired defect or otherwise concealed/obstructed inspection. | No genuine fact issue that Mathews knew of an existing, undisclosed defect or impaired inspection; Van Durens failed to show fraudulent inducement as to Mathews. |
| Damages re: Crescent Cove sale | Reggie’s affidavit establishes market value ($525,000) vs sale price ($430,000); Mathews had conflict and caused undersale. | Van Durens agreed to the sale price; Reggie’s valuation is conclusory/unsupported. | Reggie’s affidavit lacked factual foundation and is no evidence of market value; summary judgment affirmed on Crescent Cove claims. |
Key Cases Cited
- Lehmann v. Har‑Con Corp., 39 S.W.3d 191 (Tex. 2001) (final‑judgment requirement for appellate jurisdiction)
- Prudential Ins. Co. of Am. v. Jefferson Assocs., 896 S.W.2d 156 (Tex. 1995) (as‑is clauses and exceptions for fraudulent inducement or impaired inspection)
- City of Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252 (Tex. 2018) (de novo review of summary judgment)
- Cmty. Health Sys. Prof’l Servs. Corp. v. Hansen, 525 S.W.3d 671 (Tex. 2017) (review where trial court’s summary judgment lacks stated grounds)
- KCM Fin. v. Bradshaw, 457 S.W.3d 70 (Tex. 2015) (burden to conclusively negate an element on traditional SJ)
- Lightning Oil Co. v. Anadarko E & P Onshore, 520 S.W.3d 39 (Tex. 2017) (no‑evidence SJ standard)
- Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675 (Tex. 2002) (reliance element for negligent misrepresentation)
- IHS Cedars Treatment Ctr. v. Mason, 143 S.W.3d 794 (Tex. 2004) (causation element in negligence)
- Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150 (Tex. 2012) (market‑value foundation required for owner valuation testimony)