Court of Appeals of Texas, Second District, Fort Worth
THE 158TH DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO.
LIVINGSTON, C.J.; WALKER and PITTMAN, JJ.
MEMORANDUM OPINION 
a summary-judgment appeal. Appellees Paul and Linda Gray
built a large, lake-front home and about eight years later in
May 2015 sold it to Appellants Benjamin and Claire Mead. Mead
had been a licensed relator for over eight years at the time
of the purchase. Before the sale, the Meads retained their
own property inspector, whom Claire selected and whom she had
used previously to inspect properties she had sold. The
inspector performed an independent inspection of the home.
His report noted, in part, "signs of minimal foundation
settlement" in two areas of the home and documented
"deficiencies" existed in the home, including
hairline cracks and patching on interior walls, cracks in the
exterior brick veneer, open caulk joints around the exterior
sides of windows, a cracked floor tile, open grout joints and
caulk separation in the kitchen's backsplash, and
deficiencies in five interior and three exterior doors. The
Meads ultimately purchased the home; their purchase contract
contained an "as is" clause.
the Meads noticed cracks in the interior and exterior of the
home, windows and doors that would not operate properly, and
an unlevel floor upstairs, they contacted a foundation-repair
contractor and, subsequently, sued the Grays for violations
of the Deceptive Trade Practices Act (DTPA), for fraud in the
inducement/fraud by nondisclosure, fraud in a real estate
transaction, negligent misrepresentation, negligence, and
gross negligence. The Grays filed a traditional motion for
summary judgment asserting that, as a matter of law, the
reliance and/or causation elements of all of the Meads'
claims were conclusively negated for two reasons:
the Meads obtained their own independent inspection and
report, and the purchase contract contained an "as
is" clause. The trial court granted summary judgment for
the Grays on all of the Meads' claims without stating the
basis for the ruling and granted the Grays'
summary-judgment motion for attorney's fees predicated on
the purchase contract's provision that the prevailing
party in a suit relating to the contract is entitled to
Meads perfected this appeal and raise three issues. The Meads
argue in two issues that neither their independent inspection
nor the purchase contract's "as-is" clause
negate the reliance and/or causation elements of their
claims. In their third issue, the Meads argue that the trial
court erred by granting attorney's fees to the Grays
because the trial court erred in granting summary judgment
for the Grays. For the reasons set forth below, we will
Standard of Review
review a traditional motion for summary judgment de novo.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656,
661 (Tex. 2005). A traditional motion for summary judgment is
granted only when the movant establishes that there are no
genuine issues of material fact and that it is entitled to
judgment as a matter of law on the grounds expressly set
forth in the motion. Browning v. Prostok, 165 S.W.3d
336, 344 (Tex. 2005). When reviewing an order granting a
traditional motion for summary judgment, courts take evidence
favorable to the nonmovant as true and indulge every
reasonable inference from the evidence in favor of the
nonmovant. Am. Tobacco Co. v. Grinnell, 951 S.W.2d
420, 425 (Tex. 1997).
The Independent Inspection and Report Negated the Causation
and Reliance Elements of the Meads'
support of their motion for summary judgment, the Grays
offered deposition excerpts from the Meads in which they
testified that they would not have purchased the Grays'
property without having an independent inspection performed;
Claire testified that she "trusted" her inspector.
The inspector's report contains his professional expert
observations, conclusions, and photographs, as well as
warnings that when the report indicates a deficiency, it is
"the client's" responsibility to obtain further
evaluations and/or cost estimates and that such further
evaluations could lead to the discovery of additional
deficiencies, which may involve additional repair costs.
Meads concede in their brief that "Texas courts have
consistently concluded that a buyer's independent
inspection precludes a showing of causation and reliance if
it reveals to the buyer the same information that the seller
allegedly failed to disclose." As noted by the Meads,
"This is consistent with the principle that a party who
has actual knowledge of specific facts cannot have relied on
a misrepresentation of the same facts." See,
e.g., Birnbaum v. Atwell, No. 01-14-00556-CV,
2015 WL 4967057, at *8 (Tex. App.-Houston [1st Dist.] Aug.
20, 2015, pet. denied) (mem. op.); Volmich v.
Neiman, No. 02-12-00050-CV, 2013 WL 978770, at *6 (Tex.
App.-Fort Worth Mar. 14, 2013, no pet.) (mem. op.);
Williams v. Dardenne, 345 S.W.3d 118, 126 (Tex.
App.- Houston [1st Dist.] 2011, pet. denied); Camden
Machine & Tool, Inc. v. Cascade Co., 870 S.W.2d 304,
311 (Tex. App.-Fort Worth 1993, no writ); Dubow v.
Dragon, 746 S.W.2d 857, 860 (Tex. App.-Dallas 1988, no
defeat application of this rule--that the Meads'
(buyers') independent inspection precludes a showing of
reliance and causation in their claims against the Grays
(sellers) when the inspection reveals the same information
that the buyers allege the sellers failed to disclose--the
Meads raise two arguments. First, the Meads argue that the
rule is inapplicable here because the Meads' independent
"inspection report did not disclose problems with the
house foundation, " which is the information the Meads
contend the Grays, as sellers, failed to disclose or
concealed. Second, the Meads argue that the Grays actively
concealed information concerning prior foundation problems by
failing to disclose prior problems in their
"Seller's Disclosure Notice, " by failing to
disclose photos they had submitted to the Denton County
Appraisal District (DCAD) in an effort to lower the appraised
value of the home, and by failing to disclose an addendum to
a January 2011 termite-inspection report. The Meads argue
that this concealment by the Grays renders the general rule
determining whether a buyer's independent inspection
conclusively negates reliance and causation in a buyer's
claim based on a seller's failure to disclose
information, courts look to whether the buyer ultimately
possessed the same information and knowledge as the seller.
See, e.g., Birnbaum, 2015 WL 4967057, at
*8; Williams, 345 S.W.3d at 125-26. That is,
regardless of whether the seller failed to disclose
information or concealed information, when the buyer
ultimately possesses that same information (albeit from a
different source than the seller) and nonetheless proceeds to
purchase the home, then the buyer cannot have relied on the
seller's failure to disclose or misrepresentation of
those same facts in making the decision to purchase the home.
Reliance and ...