Fletcher v Edwards
| Decision Date | 29 March 2000 |
| Docket Number | No. 10-98-226-CV,10-98-226-CV |
| Parties | IN THE TENTH COURT OF APPEALSRALPH FLETCHER AND D'ANN FLETCHER, Appellants v. JOHN R. EDWARDS, ET AL., Appellees From the 249th District Court Johnson County, Texas Trial Court # 249-97-93 O P I N I O N Ralph and D'Ann Fletcher filed suit against John R. Edwards, Rob Orr, ERA Orr & Associates (collectively, "Appellees") and others alleging statutory and common law fraudulent inducement, DTPA violations, and negligent misrepresentation. The Fletchers allege that Edwards, a real estate agent, represented to them that they could get a water connection to a lot which they ultimately purchased, when in fact they could not obtain the necessary connection because of a lack of easements across an adjoining lot. The court granted a summary judgment in Appellees' favor. The Fletchers present the following ten issues in this appeal: * were the "as is" clauses in the documents they signed with the seller Donald L. Wallace a part of the bargain between Wallace and themselves; * if so, did these clauses "survive the |
| Court | Texas Court of Appeals |
O P I N I O N
Ralph and D'Ann Fletcher filed suit against John R. Edwards, Rob Orr, ERA Orr & Associates (collectively, "Appellees") and others alleging statutory and common law fraudulent inducement, DTPA violations, and negligent misrepresentation. The Fletchers allege that Edwards, a real estate agent, represented to them that they could get a water connection to a lot which they ultimately purchased, when in fact they could not obtain the necessary connection because of a lack of easements across an adjoining lot. The court granted a summary judgment in Appellees' favor. The Fletchers present the following ten issues in this appeal:
* were the "as is" clauses in the documents they signed with the seller Donald L. Wallace a part of the bargain between Wallace and themselves;
* if so, did these clauses "survive the June 5, 1991 closing at the title company";
* are Orr and ERA jointly and severally liable for Edwards's alleged representations concerning the availability of water to the property the Fletchers purchased;
* was Appellees' First Amended Original Answer and Original Counter-Claim for Declaratory Judgment filed and served in time to become part of the summary judgment record;
* does Appellees' summary judgment motion identify the elements of the Fletchers' causes of action for which they claim there is no-evidence;
* is reliance a necessary element for a DTPA claim under the law applicable to this case;
* was Edwards's alleged representation concerning availability of water so "patently absurd" that the Fletchers should not have relied upon it;
* is there evidence that the Fletchers relied on Edwards's alleged representation;
* for purposes of exemplary damages, is there evidence Edwards intended to deceive the Fletchers when he made the alleged representations; and
* is the "Acceptance of Title" agreement properly included in the summary judgment record because Appellees did not produce it to the Fletchers in discovery.1
BACKGROUND
On June 4, 1991, Edwards, a real estate agent for ERA, showed the Fletchers a lot that was listed with ERA. That same day, the Fletchers signed a real estate contract with the owner of the lot, Donald Wallace, to purchase it for $16,000 cash. In this contract, they obligated themselves to "accept[ ] the Property in its present condition."
The parties dispute whether Edwards affirmatively represented to them that water was available to the lot. The Fletchers maintain that before they purchased the lot, they asked Edwards whether water was available to the lot. The Fletchers claim that Edwards told them that water service was available but that it was disconnected because the water bill had not been paid. The Fletchers further claim that Edwards told them that water service could be re-established if they paid the Johnson County Rural Water Supply Corporation (the "Water Company") $1,400. However, Edwards maintains that he never told the Fletchers that water service was available to the lot and that he told the Fletchers that they needed to check with the Water Company and be certain that they could obtain a water meter for the lot before they purchased the lot.
The Fletchers signed an "Acceptance of Title" agreement at closing on June 5 which contains an "as is" clause. After their purchase, the Fletchers contacted the Water Company to have water service restored to their lot. The Water Company told the Fletchers that water service was unavailable to their lot because the adjacent lot lacked the necessary easements required for water service. Specifically, the Water Company informed the Fletchers that the water meter for their lot must be located on the adjacent lot before water service could begin. The Water Company stated that without an easement on the adjacent lot, they cannot service the Fletchers' lot.
The Fletchers subsequently filed suit against Edwards, Beverly Sanborn, Orr, ERA, Clarence C. Davis, the Water Company, and Wallace2 claiming: (1) statutory and common law fraudulent inducement; (2) violation of the Deceptive Trade Practices Act ("DTPA");3 and (3) negligent misrepresentation.
Appellees each originally responded to the Fletchers' lawsuit with general denials. On May 19, 1998, Appellees filed a motion for summary judgment raising both traditional summary judgment claims and a "no-evidence" claim. See Williams v. Bank One, No. 10-99-077-CV, slip op. at 12-13, 1999 WL 1123813, at *7 (Tex. App.-Waco Dec. 8, 1999, no pet.); Grant v. Southwestern Elec. Power Co., 998 S.W.2d 383, 387-88 (); TEX. R. CIV. P. 166a(c), (i). Although these claims are not as distinctly segregated as the Court would prefer, a close reading of paragraph 4 of the motion discloses that Appellees argue under their traditional summary judgment claim that they are entitled to judgment as a matter of law because: (1) the "as is" clauses4 bar the Fletchers' claims; (2) the "as is" clauses establish that the Fletchers did not rely on any alleged misrepresentations; and (3) Appellees had no duty as Wallace's agents "to investigate the actual condition or status of the water line, water easement or water meter." Under the no-evidence portion of their motion, they claim the Fletchers can produce no evidence that Edwards knew his alleged statements concerning the availability of water were false.5
In support of their dual motion Appellees attached excerpts of Edwards's deposition testimony in which Edwards claimed that: (1) he did not make any affirmative representations to the Fletchers that water was available to the lot; (2) he told prospective buyers that it was their job to check with the Water Company and that he told the Fletchers the same; (3) he did not actually know whether water was available to the lot; and (4) if he did make any representations to the Fletchers, it was because he believed that water was available because Wallace, the prior owner, told him that water was available, the lot previously had a septic tank on it, he saw a water hydrant on the property, and a mobile home had been on the lot for several years. The court set the matter for hearing on June 9.
The Fletchers filed their response on June 1. They contest whether Edwards told them they would need to consult with the Water Company to determine the availability of a water connection on their property and claim that he told them a water membership would cost $1,400. They challenge Appellees' use of the "as is" clauses by asserting that such clauses are not applicable in DTPA cases. They assert that Edwards had a duty to them to insure that his alleged representation was true. They argue that Edwards's alleged representation was false and material and induced them to enter into the real estate contract. The Fletchers supported their response with an affidavit from D'Ann Fletcher stating that Edwards told her and her husband on three separate occasions that utilities were available to the lot and that Edwards did not tell her husband to check with the Water Company before they purchased the lot. They objected to two paragraphs in Edwards's summary judgment affidavit on hearsay grounds.6
Two days later, Appellees filed a First Amended Original Answer and Original Counterclaim for Declaratory Judgment. The amended answer contains special exceptions to portions of the Fletchers' Fourth Amended Original Petition (filed in 1993) and generally denies the allegations of the petition. The counterclaim asserts that the Fletchers obtained from adjoining landowners the easements necessary to facilitate water service on March 18, 1998. The Fletchers filed a Motion to Strike this pleading on June 8, because it was filed within seven days of the date of the summary judgment hearing. They also objected to Appellees' reliance on the March 18 easement conveyance because Appellees failed to produce a copy of it in their discovery responses. Appellees non-suited their counterclaim two months after filing it.
On June 26, Appellees filed a supplement to their summary judgment motion. They attached excerpts from D'Ann Fletcher's June 1 deposition. Appellees contemporaneously filed a motion to supplement the summary judgment record. They also filed a brief in support of their motion for summary judgment (as supplemented) on that date. The Fletchers filed a supplemental response on the same date, raising additional legal arguments in response to the original motion.
The trial court signed an order on July 1 granting Appellees' motion to supplement the record and a separate order on that same date granting their summary judgment motion. The court did not specify the ground(s) on which it was granting summary judgment, nor did it address any of the Fletchers' summary judgment objections, their Motion to Strike, or their supplemental response.
The next day, the Fletchers filed a motion asking the court to permit supplementation of the summary judgment record with the supplemental response they had filed on June 26. The court signed an order on that same date granting the motion.
STANDARD OF REVIEW
To prevail on a summary judgment motion, the movant must demonstrate that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). We disregard all conflicts in the evidence and accept the evidence favoring the nonmovant as true. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965); Kehler v. Eudaly, 933 S.W.2d 321, 324 (Tex. App.-Fort Worth 1996, writ denied). We indulge every reasonable inference from the evidence in favor of the nonmovant and resolve any doubts in its favor. American Tobacco, 951 S.W.2d at 425....
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