Dubow v. Dragon
| Decision Date | 04 February 1988 |
| Docket Number | No. 05-87-00329-CV,05-87-00329-CV |
| Citation | 746 S.W.2d 857 |
| Parties | Harry DUBOW, and Wife, Susan Dubow, Appellants, v. Leon DRAGON, and Wife, Carol Dragon, Appellees. |
| Court | Texas Court of Appeals |
James P. Finstrom, Dallas, for appellants.
Cynthia Hollingsworth, Gardere & Wynne, Dallas, for appellees.
Before ENOCH, C.J., and WHITHAM and McCLUNG, JJ.
In this action for violations of the Texas Deceptive Trade Practices-Consumer Protection Act, brought by the purchasers of a home against the sellers, the appellant-purchasers, Harry Dubow, and wife, Susan Dubow, appeal from a summary judgment in favor of the appellee-sellers, Leon Dragon, and wife, Carol Dragon. We find no merit in either of the Dubows' two points of error. Accordingly, we affirm.
The underlying dispute arose out of the sale of a home. The question presented to this court is whether consumers, who discover problems in a house which they wish to purchase, who then have their own experts confirm and describe these problems to them, who modify their contract and renegotiate the purchase price based on known and anticipated problems, who then agree to purchase a house "as is, WITH ALL CONTINGENCIES REMOVED", and who later decide they have made a bad deal, can successfully sue the sellers for alleged defects in the house.
The Dubows limit their appeal to purported questions of fact regarding alleged misrepresentations and an alleged failure to disclose information regarding the foundation of the family room and water leaks in the roof. This summary will, therefore, focus on facts relative to those areas, limited to the record brought forward on appeal. Consider then the undisputed facts found in the depositions of the Dubows and the deposition of one of their inspectors and the reports of their inspectors.
In October, 1984, on two occasions the Dubows visited the Dragons' house which was listed for sale because the Dragons were moving to Chicago. The interior appeared shabby to the Dubows in several regards, and the Dubows were not satisfied with the house itself, but they very much liked the lot on which the house is located. Subsequently, the Dubows agreed to purchase the house for $445,000.00. This was $50,000.00 less than the asking price. From the outset, the Dubows anticipated spending at least $40,000.00 to $50,000.00 to make changes to the home.
The Dubows were given the right to inspect the house under the contract, and the inspection was a condition precedent to closing. The Dubows hired Cooper Brothers, Inc., to perform the inspection. Mike Cooper thoroughly inspected the house and prepared a written report for the Dubows. Cooper inspected the plumbing, electrical system, roof, foundation, sprinkler system, heating and air conditioning, the cellar and all other visible areas. The report identified several existing problems and potential problems. The report reflects differential movement in the concrete slab which affected the entire house, including stress cracks in the interior walls, sticky doors and sloping floors.
Upon receipt of Cooper's report, the Dubows were concerned and initially planned to terminate the contract. The Dubows decided to explore the situation further, however, and hired a foundation specialist. ECI Services, Inc., inspected the house and provided a written report to the Dubows. Nick Manesh of ECI Services, Inc., reported that he had inspected the 30-year-old house with regard to structural distress relative to differential foundation movement. He noted additional problems attributable to differential foundation movement including "cracks in brick mortar and perimeter beam, separation of brick veneer from door and window frames, floors not level, door frames not plumb, sheet rock cracks, etc." The overall magnitude of the differential displacement was noted, as well as the fact that it was greater in certain parts of the house than others. In addition to receiving reports from their inspector who examined the entire house and from their foundation experts, the Dubows also had an architect and contractor look at certain aspects of the house prior to closing.
After receiving the reports on the condition of the house, the Dubows received estimates for repairs for existing problems in the house totalling about $4,000.00. Because there were foundation and other problems, they were "concerned that there were going to be other basic deficiencies and problems in the house" such as "plumbing, electricity, foundation, etc.". Because they worried about potential, unknown problems, the Dubows refused to purchase the house at the agreed-to price and demanded, instead, that the sale price be further reduced--not by $4,000.00 but by $17,500.00. The parties modified the contract, and the Dubows agreed as follows:
After careful inspection of the house, and with professional opinions, [w]e feel that the house will need extensive on-going maintenance because of the site positioning, foundation and drainage. See attached inspection report. We will take the home as is, WITH ALL CONTINGENCIES REMOVED. (emphasis original).
After closing and taking possession of the house, the Dubows allegedly encountered problems as they feared and brought suit against the Dragons.
In their first point of error, the Dubows contend that the trial court erred in granting summary judgment based on the contract modification because a fact issue exists as to whether the Dragons induced the Dubows to make the original agreement by misrepresentation. In their second and remaining point of error, the Dubows contend that the trial court erred in granting summary judgment based on the "as is" modification because such contract was obtained in violation of section 17.46 of the Deceptive Trade Practices-Consumer Protection Act. TEX.BUS. & COM.CODE ANN. § 17.46 (Vernon 1987). The Dubows combine these points for argument and we will treat disposition of the two points together. We note that the summary judgment is attacked only on those two specific grounds, and the trial court did not specify the basis of its judgment. Because there is no general point complaining of the summary judgment, if there is another possible ground on which the judgment could have been entered, the judgment must be...
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