Cameron v. Terrell & Garrett, Inc.
| Decision Date | 15 May 1980 |
| Docket Number | No. 18304,18304 |
| Citation | 599 S.W.2d 680 |
| Parties | Jerry D. CAMERON and Jo Ann Cameron, Appellants, v. TERRELL & GARRETT, INC., Appellee. |
| Court | Texas Court of Appeals |
Jerry D. Cameron and wife, Jo Ann, have appealed a judgment notwithstanding the verdict rendered in favor of Terrell & Garrett, Inc. The Camerons' suit claimed a violation of the Texas Deceptive Trade Practices Consumer Protection Act, Tex.Bus. & Comm.Code Ann. sec. 17.41 et seq. (Supp.1980) (DTPA). The trial court's judgment was on the basis that there was no evidence to support a jury finding that a DTPA violation had occurred under the facts in this case.
We affirm.
The Camerons purchased a house in Arlington, Texas from a third person not a party to this suit or appeal, who had listed the house for sale through Terrell & Garrett. In listing the home for sale, Terrell & Garrett had a summary of information regarding the house published in a Multiple Listing Service guide of the Arlington Board of Realtors which stated that the house had "sq. ft. 2,400". There was expert testimony offered that the abbreviation "sq. ft." in the MLS guide means square footage which was heated and air conditioned space.
When the Camerons were looking for a house and using the services of their own real estate agent, they found the house in question. Their real estate agent let them look at the MLS guide. According to allegations of the Camerons, based on, among other things, the figure in the listing stating that the house had "sq. ft. 2,400", which they presumed to mean heated and air conditioned space, they ultimately purchased the house. After they had moved in, they had the house appraised. The appraisal showed that the house had only 2,245 square feet of heated and air conditioned space, and that, if one included the garage space taken up by the walls in the house and a porch, the house did have a total of 2,400 square feet of space.
At trial the jury responded to three special issues as follows:
After these findings were made, the Camerons moved for judgment on the verdict and Terrell & Garrett filed a motion to disregard such findings on the ground that there was no evidence to raise any of these issues nor to support such findings. The trial court sustained the no evidence objections and rendered judgment notwithstanding verdict.
From the record, we find that there is evidence to support each finding. We sustain points of error one, two and three. We also sustain Terrell & Garrett's cross point of error complaining of the application of the DTPA to them. For this reason, despite our holding relative to the jury's findings, we conclude that this was not a proper case for the imposition of liability on Terrell & Garrett. We affirm the judgment of the trial court, although the rendition of our judgment is for reasons other than those applied by the trial court.
In this case, Terrell & Garrett acted as the real estate agent for the seller of the house which the Camerons purchased. As such, the common law rules of agent and principal apply. Under the cause of action brought by the Camerons, they seek to impose liability on Terrell & Garrett for an alleged false, misleading or deceptive representation of the number of square feet in the house, based on a listing which Terrell & Garrett placed in a realtor's MLS guide, which they contend is cognizable under the DTPA. The information which Terrell & Garrett used to formulate the content of the MLS listing was based on data obtained from the seller of the house.
Although an agent is generally not liable for contracts made by him for the benefit of his principal, 2 Tex.Jur.2d Agency sec. 154 (1959), the agent can be held personally liable to a third person for damages arising out of intentional deceit in procuring such contracts under certain circumstances. 2 Tex.Jur.2d Agency sec. 168 (1959). In cases where liability attaches, the principal is liable both in contract and in tort. The agent, however, is liable only in tort. The nature of the agent's tort liability has historically been determined based on the characterization of the acts of the agent as either malfeasance or misfeasance, on one hand, where liability was imposed; and nonfeasance, on the other hand, where the agent escaped liability. Annot., 20 A.L.R. 97, 100 (1922). This analysis has proved difficult to work with and unsatisfactory. Accordingly, commentators have indicated that the primary consideration to be made in the determination of the agent's liability is the issue of whether the agent owed any duty to the injured third party. Annot., 20 A.L.R. 97, 100-101 (1922); 99 A.L.R. 408 (1935).
Thus, an agent will not be personally liable for damages for deceit if he honestly believes that the representations made to him to induce the third party purchaser to contract were true. Wimple v. Patterson, 117 S.W. 1034, 1035 (Tex.Civ.App.1909, no writ). It is clear that an agent is entitled to rely in good faith upon the information supplied to him by a principal concerning something which the principal seeks to...
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...683 S.W.2d at 375. An agent who acts with fraudulent intent can be individually liable for fraud. Cameron v. Terrell & Garrett, Inc., 599 S.W.2d 680, 682 (Tex. Civ.App.—Fort Worth 1980), rev'd on other grounds, 618 S.W.2d 535 (Tex.1981); Dr. Salsbury's Labs. v. Bell, 386 S.W.2d 341, 343 (Te......
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Cameron v. Terrell & Garrett, Inc.
...were not consumers and, therefore, could not bring a private lawsuit against Terrell & Garrett for a deceptive trade practice violation. 599 S.W.2d 680. We hold the Camerons are consumers. We also hold that there is some evidence to support the jury verdict for the Camerons. Accordingly, we......