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Naquin v. Cellio

Court of Appeals of Texas, Second District, Fort Worth

May 18, 2017

AMY JOHNSON NAQUIN F/K/A AMY C. NAQUIN, APPELLANT
v.
THOMAS A. CELLIO II AND VANESSA EUGENIA CELLIO, APPELLEES

         FROM THE 431ST DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. 14-04054-431

          PANEL: MEIER, GABRIEL, and SUDDERTH, JJ.

          MEMORANDUM OPINION [1]

          BILL MEIER JUSTICE

         I. Introduction

         Appellant Amy Johnson Naquin f/k/a Amy C. Naquin appeals the trial court's summary judgment orders in favor of Appellees Thomas A. Cellio II and Vanessa Eugenia Cellio. In seven issues, Naquin argues a myriad of theories contending that the trial court erred by granting summary judgment and that the trial court improperly excluded her summary judgment evidence. Because we hold that the Cellios established as a matter of law that they were entitled to summary judgment, we will affirm the trial court's orders.

         II. Background

         The Cellios, as part of the process of listing their home for sale, executed a Seller's Disclosure Notice on April 23, 2012. On April 30, 2012, the Cellios entered into a contract with Naquin for the sale of the home. As part of the sales contract, and for the payment of $200 consideration, Naquin had the unrestricted right to terminate the contract during a seven-day period.

         During that seven-day period, Naquin hired Green Scene Home Inspections to conduct an inspection of the home. Clayton Bailey conducted the inspection on May 2, 2012. Among other things identified, the inspection report identified deficiencies to the home's structural systems and its grading and drainage. The report also stated that the sprinkler system did not have a system control panel and that each zone is operated by individual timers. The report further stated that the pool side "half bath" contained a commode that appeared to be "excessively loose at the floor mount" and that this condition "should be further evaluated and corrected as necessary."

         The parties closed on the property on May 29, 2012. Two years later, on May 29, 2014, Naquin filed this suit, alleging that after moving into the house, she discovered that the Cellios had made misrepresentations regarding "the plumbing and septic systems, the pool house, an unpermitted sprinkler system, and improper drainage." Specifically regarding the pool house, Naquin alleged that the water supply to the pool house was "simply taken from the swimming pool and the sewer and gray water lines from the pool house simply drained downhill on the property and were not properly treated or disposed." Naquin pleaded that these alleged misrepresentations constituted violations of the Texas Deceptive Trade Practices Act (DTPA) and statutory fraud and that she was entitled to exemplary damages and attorneys' fees.

         The Cellios filed their no-evidence and traditional summary judgment motions on October 27, 2015. In their traditional summary judgment motion, among many arguments, the Cellios asserted that Naquin contractually accepted the property "in its present condition" at the time of sale, thereby waiving the right to claim alleged damages. The Cellios also asserted that Naquin had hired an independent inspector, whose report disclosed problems in the very areas Naquin complained about in her petition, and that she had relied on the inspector's professional judgment and not on the Cellios' representations when purchasing the home. Thus, according to the Cellios, Naquin could not establish reliance nor causation for either of her claims and thus her claims failed as a matter of law.

         In her response, Naquin, among other contentions, argued that she had been fraudulently induced into purchasing the home and that the Cellios had made "extensive, but ineffectual repairs to the foundation and plumbing" of the home. Attached to her response, Naquin included her own affidavit, wherein she stated that prior to her purchase of the home, she was unaware that the pool house's commode flushed untreated sewage onto the lawn; that the pool house's water supply was improperly taken from the swimming pool; and that she was unaware of the "unpermitted sprinkler system."

         Without specifying the grounds for its rulings, the trial court granted both Cellios' no-evidence and traditional summary judgment motions. This appeal followed.

         III. Standard of Review[2]

         We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve any doubts in the nonmovant's favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively negates at least one essential element of a cause of action is entitled to summary judgment on that claim. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010), cert. denied, 562 U.S. 1180 (2011); see Tex. R. Civ. P. 166a(b), (c). Also, a defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all the elements of the affirmative defense. Frost, 315 S.W.3d at 508-09; see Tex. R. Civ. P. 166a(b), (c). To accomplish this, the defendant-movant must present summary judgment evidence that conclusively establishes each element of the affirmative defense. See Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008).

         When a trial court's order granting summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories presented to the trial court and preserved for appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).

         IV. Discussion

         In part of her first issue, Naquin argues that the trial court erred by granting summary judgment predicated on the Cellios' argument that the sales contract's "as is" language, coupled with Naquin's independent inspection of the home, superseded any alleged misrepresentations by the Cellios and that they were therefore entitled to summary judgment as a matter of law. We disagree.

         The parties used a standard contract form prepared by the Texas Real Estate Commission (TREC) for the transaction. In the contract, Naquin contractually bound herself to accept the property "in its present condition." The relevant contract provision states "ACCEPTANCE OF PROPERTY ...


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