Appeal from the 268th District Court Fort Bend County, Texas
Trial Court Case No. 16-DVC-231156A
consists of Justices Higley, Bland, and Caughey.
case arises out of water penetration that damaged a
residential home. Seeking to recover their losses associated
with the water damage, the buyers of the home sued the
sellers, as well as the sellers' real estate broker and
his company. The sellers counterclaimed, seeking recovery on
notes the buyers had signed to finance the home purchase and
for breach of corresponding deeds of trust. The trial court
granted summary judgment to the sellers, the broker, and the
real estate company on all of the claims brought against them
by the buyers. It then severed the sellers' counterclaims
against the buyers into a separate cause.
buyers appeal, contending that the trial court erred in
granting summary judgment because they adduced evidence in
support of each of their claims.
the sellers' counterclaims remain pending, the summary
judgment in their favor does not dispose of all the claims
between them and the buyers. We therefore dismiss the
buyers' appeal of the judgment disposing of their claims
against the sellers for lack of jurisdiction. We affirm the
trial court's summary judgment in favor of the real
estate broker and his company.
November 2013, Reggie Lee and Sonya Van Duren purchased a
home from Aloy and Gesare Chife. The home is located at 410
Royal Lakes Manor Boulevard in Richmond, Texas. The purchase
price was $1, 250, 000. The Chifes financed a large part of
the Van Durens' purchase price. The Van Durens paid $60,
000 at closing and agreed to pay another $140, 000 within
four months. They agreed to pay the remainder owed on the
note to the Chifes in monthly installments of $5, 636.63.
living in the home for about two years, the Van Durens
discovered water in the front entryway of the home. Further
investigation revealed wet, rotting wood throughout the
structure of the house. Testing for mold was positive.
Durens sued the Chifes for negligent misrepresentation, fraud
by nondisclosure, statutory fraud in a real estate
transaction, and violations of the Deceptive Trade Practices
Act. The gravamen of the Van Durens' claims is that the
Chifes knew that construction defects existed in the home but
failed to disclose them to the Chifes, and that these defects
caused the water intrusion and mold growth. The Chifes
counterclaimed, alleging that the Van Durens had not made the
$140, 000 payment and stopped making the monthly installment
payments in May 2016.
Durens also sued the Chifes' real estate broker, Stacy
Mathews, and his realty company, Stacy, Inc., which does
business as Prudential Premier Properties. Against the broker
defendants, the Van Durens asserted claims for negligence,
negligent misrepresentation, fraud by nondisclosure,
statutory fraud in a real estate transaction, and breach of
fiduciary duty. As in their claims against the Chifes, the
Van Durens alleged that Mathews knew about the construction
defects that caused the water intrusion and concealed these
defects. In addition, the Van Durens asserted claims for
negligence, negligent misrepresentation, and breach of
fiduciary duty against Mathews and his company arising from
the 2014 sale of their home at 26315 Crescent Cove Lane in
Katy, Texas, after they had purchased the Chifes' home.
Mathews acted as the Van Durens' broker in that sale.
They allege that he failed to disclose a conflict of interest
and persuaded them to sell their home for less than it was
worth in pursuit of his own interest.
Chifes moved for traditional and no-evidence summary
judgment. So did Mathews and his company. Among other
grounds, the defendants asserted that the Van Durens had
agreed to buy the Royal Lakes home "as-is, " which
barred their claims absent evidence of any affirmative
misrepresentation. Mathews also asserted that the Van
Durens' claims for negligence and negligent
misrepresentation relating to the Royal Lakes home were
barred by the two-year statute of limitations. As to the
Crescent Cove home, Mathews contended that the Van Durens
agreed to its sales price and that they had no evidence of
Durens responded, contending that the present-condition
clause in the Royal Lakes contract was unenforceable on
multiple grounds, including fraudulent inducement. They
asserted the discovery rule and fraudulent concealment as
defenses to limitations. With respect to the Crescent Cove
home, they denied that they gave Mathews permission to lower
the sales price and submitted an affidavit in support of
home's market value.
summary-judgment evidence consisted of the Royal Lakes
contract documents, excerpts from the parties'
depositions, and a few e-mails. Viewed in the light most
favorable to the Van Durens, the evidence established the
The Chifes bought the Royal Lakes home new from the builder
in 2011 or 2012. They moved out in July 2013. Caretakers
looked after the home between July and its sale to the Van
Durens in November. Mathews represented the Chifes in the
sale of the home to the Van Durens. Another broker, Jared
Lofton, represented the Van Durens.
Durens visited the Royal Lakes home at least twice before
they bought it. They understood that they had the right to
have it inspected before buying it, but they chose not to do
so. According to the Van Durens, there was not enough time to
inspect the home due to how quickly the Chifes wanted to
close the sale. The Van Durens also testified that Mathews
told them that the home had been inspected in July 2013.
Because he said that the July 2013 inspection identified only
minor problems, which were repaired, the Van Durens felt
comfortable relying on Matthews' representation in lieu
of hiring their own inspector.
record does not contain a July 2013 inspection report or any
documentary references to one. Mathews testified that was not
aware of a July 2013 inspection.
Van Duren testified that he relied on the Sellers'
Disclosure Notice completed by the Chifes in September 2013
in deciding to buy the home. In the Notice, the Chifes
indicated that they were not aware of any defects or
malfunctions in the home's roof, ceilings, walls, or
structural components. They also indicated that they were not
aware of any repairs to the roof or other structural
components, water penetration, wood rot, or any condition
that would materially affect one's health or safety. In
the Notice, the Chifes disclosed a prior inspection of the
home that took place in October 2012, but the Notice made no
mention of a July 2013 inspection.
Durens maintained that the Chifes' disclosures in the
Notice were knowingly false. Reggie testified that the Notice
misrepresented the condition of the home by failing to
disclose water penetration. Relying on a series of e-mails
from November 2012 and November 2013, the Van Durens
contended that the Chifes and Mathews were aware of the water
penetration before they sold the Royal Lakes home.
2012 e-mails, Aloy Chife complained to the home builder of
"construction anomalies" and "code
violations" and asked that the builder make "the
necessary repairs." Aloy expressed dissatisfaction that
the builder had sent a carpenter to address these issues
rather than "licensed plumbers and electricians" as
promised. Mathews was copied on these e-mails.
Chife testified that the builder "fixed everything"
and that the Chifes did not have "any other
problems" with the Royal Lakes home afterward. The
record contains no contrary evidence.
2013 e-mails, Mathews informed the Chifes of several issues
with the home, including an exterior leak above the front
door from the balcony above it. He told them that it
"may be a structural issue." Gesare responded that
the area needed to be checked out, fixed, and repainted. She
asked Mathews to "get a handy man" to do so, and
Mathews replied that he would get a bid from someone that
and Mathews testified that the 2013 e-mails were written
after the Van Durens brought the leak under the balcony to
Mathews' attention. Mathews testified that he
photographed the leak and other issues as the Van
Durens-accompanied by their broker, Lofton-pointed them out
to Mathews during one of their visits to the property.
not directly contradicting him, the Van Durens implicitly
denied Mathews' version of events. Reggie stated that he
did not enter through the front door on his visits and
therefore did not see the area beneath the balcony before
buying the home. Sonya stated that she entered the home
through the front door but did not notice any water damage on
the front porch. The record does not contain any testimony
also was conflicting evidence as to whether the balcony leak
had been repaired. According to Gesare, Mathews told her that
he contacted the builder to address the leak, but she did not
know if it was repaired. Mathews testified that he did not
obtain bids or hire anyone to fix the leak and could not
confirm whether repairs were made. He stated that Aloy did
not want to make repairs to the home due to the modest size
of the Van Durens' down payment. Reggie testified that
the Van Durens later discovered evidence of repairs in the
area above the front door and beneath the balcony.
explained that he negotiated with Lofton for the Van Durens
to buy the home "as is." Unlike a prior draft, the
final version of the parties' contract provided that the
Van Durens accepted the property "in its present
the Van Durens moved into the Royal Lakes home, they hired
Mathews to sell the Crescent Cove home where they previously
had resided. Reggie averred that its market value was $525,
000 but that Mathews persuaded the Van Durens to sell it for
$430, 000. The Van Durens alleged that Mathews had a conflict
of interest due to a term in the Royal Lakes contract. Under
that contract, a portion of Mathews's commission was not
due until the Van Durens paid the $140, 000 installment to
the Chifes. The Van Durens contend that Mathews advocated the