Robbins v. Capozzi

• Decision Date: 08 November 2002
• Docket Number: No. 12-02-00040-CV.,12-02-00040-CV.
• Parties: Susan ROBBINS, Appellant, v. Ladonna CAPOZZI, Adleta & Poston, Inc. and Susan Bratton, Appellees.
• Court: Texas Court of Appeals

100 S.W.3d 18

Susan ROBBINS, Appellant, v. Ladonna CAPOZZI, Adleta & Poston, Inc. and Susan Bratton, Appellees.

No. 12-02-00040-CV.

Court of Appeals of Texas, Tyler.

November 8, 2002.

Rehearing Overruled January 6, 2003.

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Bryan D. Perkins, Stalcup & Casterline, Dallas, for appellant.

Maryann S. Brousseau, Brousseau & Assoc. P.C., J. Kent Newsom, Newsom, Terry & Newsom, Dallas, for appellees.

Panel consisted of GOHMERT, JR., C.J., WORTHEN, J., and GRIFFITH, J.

LOUIS B. GOHMERT, JR., Chief Justice.

Appellant Susan Robbins ("Robbins") appeals the trial court's grant of summary judgment in favor of Appellees, LaDonna Capozzi ("Capozzi"), Adleta & Poston ("A & P") and Susan Bratton ("Bratton"). Robbins raises three issues on appeal. We affirm.

BACKGROUND

In 1999, Capozzi purchased Unit C at the 3537 Normandy condominium project ("Unit C") in Highland Park from Mockingbird Corporation as a place for her daughter, Meghan Capozzi ("Meghan"), to live while attending SMU. Unit C is part of a five-unit condominium complex with enough garage space to house two cars for each unit.

In order to enter the Unit C garages, a 90-degree turn must be made from a driveway that runs along the side of the garages. Before any of the condominiums were sold, the developers, Wallace Swanson ("Swanson") and Allie Beth Allman ("Allman"), satisfied themselves that the garages would accommodate different types of cars. Swanson successfully parked a large Jaguar sedan in one of the Unit C garages and both Swanson and Allman parked Allman's Mercedes SUV in one of the garages.

Shortly after her mother bought Unit C, Meghan discovered that SMU did not allow freshmen to live off campus and had to give up the idea of living in the condominium during her freshman year. Although Meghan did not live at Unit C, she went there on occasion and stored some of her belongings there. Whenever she did so, she parked her Audi A4 sedan in one of the Unit C garages. Meghan successfully negotiated the 90-degree turn from the driveway into the garage by backing up and maneuvering her vehicle into the garage. One of Meghan's friends also successfully maneuvered his car, a Mazda MX-3, into one of the garages.

Meghan decided that it would be more convenient for her to park her car in the driveway next to her front door instead of in the Unit C garages. She believed the third space would not only eliminate the need to line up her car to park in the Unit C garages but would also allow her to access her own unit more easily. She also planned to have two roommates living with her the following year, giving rise to the need for a total of three parking spaces for the property. Meghan's father, John Capozzi, discussed the idea with Allman and in February of 2000, Mockingbird Corporation executed and recorded a "Common Element Designation for 3537 Normandy, a Condominium" (the "Driveway Designation") designating an additional parking space in the driveway of the complex (the "driveway space") to be used by the owner of Unit C. Once the Driveway Designation was recorded, Meghan parked her car in the driveway space whenever she visited the condo.

Meghan later decided that she would leave SMU and transfer to another university in the Northeast. Capozzi decided to sell Unit C and hired A & P as the broker. In March of 2000, Capozzi, as Seller, and Robbins, as buyer, entered into a "Residential Condominium Contract (Resale)-All Cash, Assumption Third Party Conventional or Seller Financing" (the "Condo Contract") for the sale of the property. In the Seller's Disclosure Notice (the "notice") tendered to Robbins pursuant to the Condo Contract, Capozzi checked boxes indicating that the garage was in "Working Condition" and had "no known defects." Robbins also received a copy of the Driveway Designation as part of a "Condominium Information Statement" that included copies of all recorded documents affecting the complex. Robbins, who drove a Toyota 4-Runner SUV at the time, visited the property four times before she bought it but never tried to park her SUV in any of the Unit C garages. The parties closed on the Condo Contract, and Robbins received her deed to the property in April.

Shortly before Robbins moved into Unit C in late April, she discovered that she could not maneuver her vehicle into either of Unit C's garages. Robbins and her father then attempted to park other different-sized vehicles in the garages and could not get them into the garages. One of Robbins's co-workers parked a two-door Acura `coupe in one of the garages after he pulled up to the entrance and drove his car forward and backward, turning each time to line his car up in order to have an unimpeded entry into the garage. It took the co-worker about ten minutes to complete this process. Later that month, Robbins learned that Meghan had experienced difficulties maneuvering her car into the parking spaces and that Capozzi and her husband had negotiated the Driveway Designation.

In September, Robbins filed suit against Capozzi, A & P, and A & P's agent, Susan Bratton, asserting claims for common law fraud, a violation of sections 17.46(b)(5) and (23) of the Deceptive Trade Practices Act ("DTPA"), and fraud in a real estate transaction in violation of section 27.01 of the Texas Business and Commerce Code. Robbins alleged that the fraud arose out of all three defendants' failure to disclose the difficulties Meghan encountered when parking her car in the Unit C garages. Robbins sought rescission of the transaction, return of the purchase price paid for the property, exemplary damages, costs and attorney's fees.

Capozzi, A & P, and Bratton answered, claiming that none of them knew of anyone who claimed to be unable to park any particular vehicle in either of the Unit C garages. Capozzi also filed a counterclaim, seeking her attorney's fees pursuant to Texas Rule of Civil Procedure 13, a provision in the Condo Contract¹, and section 17.50(c) of the Deceptive Trade Practices Act.

The trial court granted summary judgment to Capozzi, A & P and Bratton on all of Robbins's claims. In a bench trial on September 18, the trial court ruled that Capozzi was entitled to recover her attorney's fees under the Condo Contract.

Robbins filed a motion for new trial on October 19, which was overruled by operation of law. Robbins then filed her notice of appeal on December 19.

STATUTORY AND COMMON LAW FRAUD CLAIMS

In her first and second issues, Robbins argues that the trial court erred in granting summary judgment on the statutory and common law fraud claims she asserted against each defendant.

Standard of Review

The party with the burden of proof must prove it is entitled to judgment by establishing each element of its claim or defense as a matter of law, or by negating an element of a claim or defense of the opposing party as a matter of law. Martin v. Harris County Appraisal Dist., 44 S.W.3d 190, 193 (Tex.App.Houston [14th Dist.] 2001, pet. denied); TEX.R. CIV. P. 166a(c). When a motion for summary judgment raises multiple grounds, we may affirm if any ground is meritorious. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996); Hanson v. Republic Ins. Co., 5 S.W.3d 324, 327 (Tex.App.Houston [1st Dist.] 1999, pet. denied). Since the burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant, we must view the evidence and its reasonable inferences in the light most favorable to the non-movant. See Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). The only question is whether an issue of material fact is presented. See TEX.R. CIV. P. 166a(c).

Once the movant has established a right to summary judgment, the non-movant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. See, e.g., City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-79 (Tex.1979). Where summary judgment does not specify the grounds on which it was granted, the non-movant on appeal must show that each ground alleged in the motion is insufficient to support it. Duran v. Fury's Supermarkets, Inc., 921 S.W.2d 778, 784 (Tex.App.-El Paso 1996, writ denied).

Common Law Fraud

Robbins contends that the trial court should not have granted summary judgment on the common law fraud claims she asserted against Capozzi, Bratton and A & P because she raised a genuine issue of material fact on each element of the claims.

In order to recover for common law fraud, a claimant must prove (1) a material representation was made, (2) the representation was false, (3) when the representation was made, the speaker knew it was false or made the statement recklessly without any knowledge of truth and as a positive assertion, (4) the representation was made with the intention that it be acted upon by the other party, (5) that party acted in reliance upon the representation, and (6) that party suffered injury. Johnson & Higgins, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 524 (Tex.1998).

LADONNA CAPOZZI

Robbins contends that Capozzi's representation on the seller's disclosure that the Unit C parking garage was in "working condition" and had "no known defects" was false because Robbins could not maneuver her Toyota 4-Runner into the garage. Robbins further contends that this representation was material because Robbins's deposition testimony, attached to her response to Capozzi's motion for summary judgment, revealed that she would not have bought Unit C if she had been told about the parking difficulties. Robbins also argues that a genuine issue of material fact exists as to whether or not Capozzi had a duty to disclose to Robbins (1) the difficulties Meghan had when parking her vehicle in the garage and (2) the reason the Driveway Designation had been amended to provide a third...