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Coria v. Ogidan

Court of Appeals of Texas, Fifth District, Dallas

February 28, 2017

NEMORIA CORIA, Appellant
v.
CHRISTOPHER JIDE OGIDAN AND MOSES GBOLABO, Appellees

         On Appeal from the 68th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-13113

          Before Justices Bridges, Evans, and Schenck.

          MEMORANDUM OPINION

          DAVID L. BRIDGES JUSTICE.

         Appellant Nemoria Coria purchased a home from appellees Christopher Jide Ogidan and Moses Gbolabo. She later sued appellees for breach of contract and DTPA violations. The trial court entered a take-nothing judgment in favor of appellees. In four issues, appellant argues the trial court erred by (1) entering a take nothing judgment when the undisputed evidence established appellees breached the general warranty deed; (2) concluding appellees did not breach the real estate contract or violate the DTPA; (3) not finding appellees failed to disclose delinquent tax information to appellant; and (4) sua sponte withdrawing appellees' deemed admissions. We reverse the take nothing judgment in favor of appellees on appellant's breach of contract claim, render judgment that appellant recover $19, 269.77 in damages, and remand for a determination of attorney's fees and cost. In other respects, the judgment of the trial court is affirmed.

         Background

         Appellant and appellees entered into a real estate contract on July 7, 2014, in which appellant agreed to buy a home for $15, 000. The contract stated in several places that the buyer "accepts the property 'as is.'" The contract also provided that at closing, "Seller shall execute and deliver a general warranty deed conveying title to the Property to Buyer and . . . furnish tax statements or certificates showing no delinquent taxes on the Property." The parties executed a non-realty items addendum in which they agreed, "The seller is not responsible for and the buyer has agreed to pay any outstanding taxes, liens, and do the necessary repairs as they want."

         On July 22, 2014, appellees delivered a general warranty deed conveying title to the property. The warranty deed stated, "The Grantor warrants that it is lawful owner and has full right to convey the property, and that the property is free from all claims, liabilities, or indebtedness, and that the Grantor and its successors will warrant and defend title to the Grantee against the lawful claims of all persons."

         Appellant testified at trial that appellees failed to tell her the property had $19, 269.77 in outstanding taxes, court costs, and city liens. They also failed to provide any tax statement regarding due taxes, as required per the contract, at the time of closing. Appellees testified they repeatedly told appellant outstanding taxes were owed on the property and encouraged her to conduct her own investigation. They claimed she knew about them "from day one." They argued it was "spelled out in the nonreality document that she is responsible for the taxes." However, appellant denied they told her about any delinquent taxes and denied calling the county tax office several weeks before closing and discovering the amount owed.

         At the conclusion of trial, the court asked the parties to provide briefing on whether the warranty deed trumped the real estate contract. Appellant filed a brief in which she argued the merger doctrine applied; therefore, the language in the warranty deed controlled. Appellees did not respond.

         The trial court ordered a take-nothing judgment on appellant's claims. In the findings of fact and conclusions of law, the court found that appellees "were aware that there were taxes due and owing on the property at the time they delivered the warranty deed to Coria and they disclosed the same to Plaintiff." The court concluded, "Defendants did not fail to disclose information to Nemoria Coria concerning goods or services which were known at the time of the transaction" and "did not breach the real estate contract and did not violate any provision of the DTPA." This appeal followed.

         Withdrawal of Deemed Admissions

         In her fourth issue, appellant argues the trial court abused its discretion by sua sponte withdrawing appellees' deemed admissions. Appellees, who appeared pro se at trial, have not filed a response brief.

         Texas Rule of Civil Procedure 198 provides that a written request that the other party admit the truth of any matter within the scope of discovery, including statements of opinion or application of law to facts, may be served on another party no later than thirty days before the end of the discovery period. Tex.R.Civ.P. 198.1. If a party fails to respond, the request is considered admitted without the necessity of a court order and is conclusively established as to the party making the admissions unless the court permits the party to withdraw or amend the admission. Tex.R.Civ.P. 198.2.

         A trial court has broad discretion in permitting or denying the withdrawal of deemed admissions. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996); Tommy Gio, Inc. v. Dunlop, 348 S.W.3d 503, 508 (Tex. App.-Dallas 2011, pet. denied). An appellate court should set aside a trial court's ruling only if, after reviewing the entire record, it is clear that the trial court abused its discretion. Tommy Gio, Inc., 348 S.W.3d at 509. A trial court ...


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