Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 193rd Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-16-15823
Justices Francis, Myers, and Stoddart.
Shepard appeals the judgment in favor of MQ Prosper Retail,
LLC and Gambit Realty & Investments, Inc. The trial court
granted appellees' motion for summary judgment on their
claim against Shepard and awarded them damages of $380, 000.
Shepard brings four issues on appeal contending the trial
court erred by granting appellees' motion for summary
judgment because there were genuine issues of material fact
concerning whether (1) the payments Shepard received were for
real estate brokerage services, (2) appellees were aggrieved
parties having standing to bring suit, and (3) Shepard acted
as a real estate broker or was paid real estate commissions
for a real estate transaction. Shepard also contends (4) the
trial court erred by granting appellees' objections to
Shepard's summary judgment evidence. We reverse the trial
court's judgment and remand for further proceedings.
Shepard and Donald Silverman are involved in commercial real
estate. Shepard is a licensed real estate sales associate in
Florida, but he does not have a real estate license in Texas.
Silverman is a real estate developer in Texas and Florida.
They met at a Florida convention in 2012. In April 2013,
Shepard came to Dallas and contacted Silverman to renew his
acquaintance with him. They met for drinks and discussed real
estate developments in Texas. During the conversation,
Silverman mentioned that he was interested in purchasing a
large tract of land in Prosper, Texas owned by former Dallas
Cowboys football player Deion Sanders. Shepard said he knew
Sanders, had his telephone number, and could get in touch
with him. Shepard called Sanders, and that phone call led to
Sanders agreeing to sell his home.
13, 2013, Sanders signed a contract to sell his property to
"MQ Realty, LLC or assigns" for $19 million. The
contract called for Sanders to pay a three-percent commission
to "Gambit Realty, " the broker for MQ Realty. When
the sale closed, MQ Realty transferred the property to MQ
Prosper Retail LLC ("Prosper Retail"). Prosper
Retail's manager was MQ Prosper Preston LLC
("Prosper Preston"), whose purpose was to cause
Prosper Retail to "operate, improve, develop, "
etc. the Sanders property. Shepard was a member of Prosper
Preston. At some point, Shepard was made a "Senior Vice
President & Director of Acquisitions/Florida &
Partner" for MQ Development Partners.
September 4, 2014, Shepard and Silverman (as manager of the
MQ entities) signed a memorandum agreement. In the agreement,
the MQ entities agreed to pay Shepard commissions for the
acquisition, sale, and leasing of property. The agreement
also provided that Shepard would be paid an "Acquisition
Fee" concerning the Sanders property. According to the
agreement, at the time of the acquisition of the property,
Shepard would be paid "$250, 000 (from the Seller) and
$125, 000 (from Buyer)." Silverman stated in his
affidavit that Prosper Realty paid Shepard $255, 000 on
August 29, 2014 and Gambit Realty paid Shepard $125, 000 on
September 9, 2014, "all as real estate commissions
related to the Sanders transaction."
2016, appellees brought suit against Shepard alleging he
violated the Texas Real Estate License Act by accepting real
estate brokerage commissions when he was not a licensed real
estate broker in Texas. See Tex. Occ. Code Ann.
§ 1101.754 (West Supp. 2017). They sought as damages the
$380, 000 they paid him plus twice that amount as a statutory
penalty under the Act. See id. Appellees also
alleged Shepard committed fraud and negligent
misrepresentation. Appellees moved for summary judgment on
their claim under the Texas Real Estate License Act, which
the trial court granted, awarding them $380, 000 actual
damages but not awarding the additional penalty amounts.
Appellees then nonsuited their remaining claims.
standard for reviewing a traditional summary judgment is well
established. See Nixon v. Mr. Prop. Mgmt. Co., 690
S.W.2d 546, 548-49 (Tex. 1985); McAfee, Inc. v. Agilysys,
Inc., 316 S.W.3d 820, 825 (Tex. App.-Dallas 2010, no
pet.). The movant has the burden of showing that no genuine
issue of material fact exists and that it is entitled to
judgment as a matter of law. Tex.R.Civ.P. 166a(c). In
deciding whether a disputed material fact issue exists
precluding summary judgment, evidence favorable to the
nonmovant will be taken as true. Nixon, 690 S.W.2d
at 549; In re Estate of Berry, 280 S.W.3d 478, 480
(Tex. App.-Dallas 2009, no pet.). Every reasonable inference
must be indulged in favor of the nonmovant and any doubts
resolved in its favor. City of Keller v. Wilson, 168
S.W.3d 802, 824 (Tex. 2005). We review a summary judgment de
novo to determine whether a party's right to prevail is
established as a matter of law. Dickey v. Club
Corp., 12 S.W.3d 172, 175 (Tex. App.-Dallas 2000, pet.
REAL ESTATE BROKERS
first issue, Shepard contends the trial court erred by
granting appellees' motion for summary judgment because
appellees failed to prove as a matter of law that the
payments Shepard received were for real estate brokerage
Texas Real Estate License Act provides, "A person who
receives a commission or other consideration as a result of
acting as a broker or sales agent without holding a license
or certificate of registration under this chapter is liable
to an aggrieved person for a penalty of not less than the
amount of money received or more than three times the ...