Court of Appeals of Texas, Second District, Fort Worth
AMY JOHNSON NAQUIN F/K/A AMY C. NAQUIN, APPELLANT
THOMAS A. CELLIO II AND VANESSA EUGENIA CELLIO, APPELLEES
THE 431ST DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO.
MEIER, GABRIEL, and SUDDERTH, JJ.
MEMORANDUM OPINION 
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.
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
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
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'
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.
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
specifying the grounds for its rulings, the trial court
granted both Cellios' no-evidence and traditional summary
judgment motions. This appeal followed.
Standard of Review
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
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).
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.
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