Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 68th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-14-13113
Justices Bridges, Evans, and Schenck.
L. BRIDGES JUSTICE.
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.
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
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
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.
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.
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.
of Deemed Admissions
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.
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.
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 ...