Jones v. Coppinger
| Decision Date | 31 August 2021 |
| Docket Number | 08-20-00040-CV |
| Citation | 642 S.W.3d 51 |
| Parties | Penny JONES, Appellant, v. Maxine COPPINGER, Appellee. |
| Court | Texas Court of Appeals |
Gary L. Pate, Jason Gunderman, for Appellee.
Dareld R. Morris, for Appellant.
Before Rodriguez, C.J., Palafox, and Alley, JJ.
JEFF ALLEY, Justice Appellant Penny Jones ("Jones") and her now-deceased ex-husband, J.T. Jones ("J.T.") were ordered to sell their primary residence pursuant to a divorce decree. They agreed to retain Appellee Maxine Coppinger ("Coppinger"), a licensed real estate agent, to serve as their listing agent. Although the property sold at a price agreed upon by the parties, Jones filed the present lawsuit against Coppinger, alleging that Coppinger failed to disclose certain information to her, which caused Jones to agree to a lower sales price than she otherwise would have. Jones's lawsuit alleged four causes of action against Coppinger, all of which were based on the claimed failure to disclose information: (1) fraud by nondisclosure; (2) breach of fiduciary duty; (3) breach of contract; and (4) violations of the Texas Deceptive Trade Practices Act ("DTPA").
The trial court granted Coppinger's motion for summary judgment, dismissing all four causes of action, and further granted Coppinger's request for an award of attorney's fees and costs pursuant to the parties' contract. Although we disagree with Jones's arguments that the trial court erred in granting the summary judgment or in awarding attorney's fees and costs, we agree with Jones that the trial court erred in holding her attorney individually responsible for paying the award, and for stating in its order that the failure to pay the award is enforceable by contempt proceedings. We therefore strike those provisions from the attorney's fee order, but affirm the trial court's judgment in all other respects.1
Under the terms of their divorce decree, Jones and her then-husband, J.T. were required to liquidate various community assets, including their primary residence, located on a 169-acre tract of land in Fayette County (hereinafter the "property"). The decree required the parties to agree upon a realtor who was an active member of the Multiple Listing Service (MLS) to list the property at its fair market value no later than January 15, 2016. It further directed the parties to accept any offer on the property within 10% of the listing price. If the property was not sold within six months of the listing date, the parties were to work with the real estate agent to establish a scheduled reduction in the listing price. In addition, the decree directed the parties to use a portion of the proceeds from the sale to pay an existing IRS debt of $230,000, after which the parties were to split any remaining profit from the sale on an equal basis. It is undisputed that Jones was represented by two attorneys throughout the divorce proceedings, as well as during the ensuing real estate transaction.
The parties ultimately agreed upon Coppinger, an associate broker at Heritage Texas Country Properties (hereinafter "Heritage"), as the listing agent. Jones and J.T. thereafter signed a listing agreement with Heritage, which Coppinger signed in her capacity as the "broker's associate" and its "authorized agent," allowing her to list the property for $1.5 million. The agreement, which ran from March 9, 2016 to September 14, 2016, provided that Heritage was to receive a commission of 6%, to be split with the buyer's broker, if the property was sold during that time. The listing agreement also contained a clause, requiring the parties to mediate any dispute, and a provision stating that if the "seller or broker is a prevailing party" in any legal dispute brought as a result of the listing or any transaction contemplated by the listing, the prevailing party would be entitled to recover costs and reasonable attorney's fees from the non-prevailing party.
Although the exact date is not clear, the parties received an offer of $1.2 million on the property on or before May 31, 2016. That same day, one of Jones's attorneys sent an email to Coppinger and J.T.'s attorney, Katrina Packard ("Packard"), stating that the offer was too low; he then suggested making a counter-offer of $1.235 million, with an agreement to convey 15% of the mineral interests on the property to the buyer, together with an agreement that Jones would be responsible for cleaning the property prior to the sale.2 In suggesting this amount, Jones's attorney pointed out that the parties had agreed to reduce the listing price by 5% if the property did not sell within 90 days of the initial listing, which meant that the listing price would soon be reduced to $1.425 million if this sale was not completed. And in turn, he pointed out that because the divorce decree required the parties to accept any offer that was within 10% of the listing price, this meant that they would soon be required to accept an offer of $1.2825 million. And although he noted that the proposed counter-offer of $1.235 million was less than that amount, he nevertheless stated that his client was willing to accept that amount.
J.T. agreed with the proposed-counter offer which was communicated to the buyer. The parties thereafter signed a sales agreement on June 3, 2016, which incorporated the terms of the counteroffer and set a closing date for June 24, 2016.
Sometime prior to June 15, 2016, Coppinger contacted the buyer's agent and the title company to inquire if the closing date could be extended because Jones was having problems cleaning the property, as required by the sales agreement. In response, the buyer's agent sent Coppinger an e-mail on June 15, 2016 at 8:45 a.m., stating that the buyer needed to close on June 24, 2016, as set forth in the sales contract, in order to be "in compliance with his 1031 exchange."3 Coppinger then sent an email to the attorneys for both parties at 11:55 a.m. that same day, explaining that the closing was "chiseled in granite," as the buyer was executing a 1031 exchange. Jones admitted at her deposition that neither she nor her attorneys objected to the sale going forward at that time, and the closing therefore took place as scheduled on June 24, 2016, which Jones attended with one of her attorneys.
Almost two years later, Jones filed her Original Petition naming Coppinger as a defendant, alleging the following four causes of action: (1) fraud by nondisclosure; (2) breach of fiduciary duty; (3) breach of contract; and (4) violations of the Texas Deceptive Trade Practices Act ("the DTPA"). These claims were all based on the factual allegation that Coppinger knew that the buyer was using a 1031 exchange prior to June 13, 2016, and that she had a fiduciary duty and a contractual obligation to timely disclose this information during the negotiations period, but failed to do so. Jones alleged that knowing this information would have enabled her to negotiate a higher sales price, as the buyer's use of the 1031 exchange placed him at a financial "disadvantage" due to his need to close the sale within a certain timeframe or risk losing the tax advantages, making it unlikely that he would have "turn[ed] down" a higher counter-offer than the parties made. In effect, she believes that she could have pressured the buyer into paying the full fair market value of the property, which she alleged was $1.5 million, and that she therefore suffered actual damages of $132,500 (her one-half share of theorized increase in the net proceeds from the sale). In addition to seeking compensation for her actual damages, she requested mental anguish damages, as well as exemplary damages pursuant to sections 41.003 and 41.008 of the Texas Civil Practices & Remedies Code.
Coppinger filed an answer denying Jones's allegations, and asserted a counterclaim alleging that Jones had breached the parties' listing agreement by not seeking mediation of the parties' dispute, as required by the contract. Coppinger alleged that this breach entitled her to attorney's fees.
After a period for discovery, Coppinger filed a no-evidence and alternative traditional motion for summary judgment. In her motion, Coppinger alleged that she timely disclosed the information regarding the buyer's use of the 1031 exchange on the same day that information was e-mailed to her (June 15, 2016). The motion attached the e-mail exchange and included Coppinger's affidavit testifying that she did not know the information prior to that date. The motion argued her timely disclosure of this information negated the fraud by nondisclosure, breach of fiduciary duty, and breach of contract claims. Additionally, and with respect to the claim for fraud by nondisclosure claim, Coppinger added that Jones could not prove any injury that she suffered by the alleged failure to disclose the information. Rather, her claim that she would have been in a better negotiating posture if she had known of the information was based on mere speculation. Coppinger, however, did not challenge the damages element of any of Jones's remaining claims.
And with respect to Jones's DTPA claim, Coppinger alleged that real estate professionals were exempt from the DTPA except in circumstances in which the professional made an "express misrepresentation," and that Jones's DTPA claim should be dismissed, as Jones had not alleged that she had made any such misrepresentation. Coppinger retained her own right to seek attorney's fees as the prevailing party on the contract and stated her intent to later prove up the amount of those attorney's fees and costs.
In her response to the motion for summary judgment, Jones did not come forward with any evidence to rebut Coppinger's claim that she only...
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