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Triex Texas Holdings, LLC v. Marcus & Millichap Real Estate Investment Services of Nevada, Inc.

Court of Appeals of Texas, Seventh District, Amarillo

April 25, 2019

TRIEX TEXAS HOLDINGS, LLC AND BRYAN WEINER, APPELLANTS
v.
MARCUS & MILLICHAP REAL ESTATE INVESTMENT SERVICES OF NEVADA, INC., APPELLEE

          On Appeal from the 99th District Court Lubbock County, Texas Trial Court No. 2016-519, 366-B, Honorable William C. Sowder, Presiding

          Before CAMPBELL, and PIRTLE and PARKER, JJ.

          MEMORANDUM OPINION

          PER CURIAM

         Appellants, Triex Texas Holdings, LLC and Bryan Weiner, appeal from the trial court's order granting summary judgment in favor of appellee, Marcus & Millichap Real Estate Investment Services of Nevada, Inc. Marcus & Millichap have filed a cross-appeal. We reverse the judgment of the trial court and remand for further proceedings.

         Background

         This dispute arises from a real estate transaction. On April 30, 2008, appellants purchased a gas station from Hamilton Holdings, L.P. Appellants simultaneously leased the property to Taylor Petroleum Companies, Inc., the previous lessee and operator of the gas station, for a twenty-year term. Marcus & Millichap brokered the transaction and served as the real estate broker for appellants, Hamilton Holdings, and Taylor Petroleum.

         In December of 2012, Taylor Petroleum defaulted on the lease. In February of 2016, appellants filed suit against Taylor Petroleum, Hamilton Holdings, and other parties for breach of contract, fraud, and other claims. Appellants amended their petition on March 24, 2017, to add Marcus & Millichap as a defendant. In the petition, appellants alleged that Marcus & Millichap had induced them to purchase and lease the property by misrepresenting the property's value and Taylor Petroleum's ability to sustain the twenty-year lease. They asserted claims against appellee for breach of fiduciary duty, fraud by nondisclosure, and civil conspiracy to defraud.

         Marcus & Millichap answered the suit, pleading that appellants' claims were barred by the applicable statutes of limitations. Appellants did not amend their petition to respond to the limitations defense. Shortly after the pleading deadline set by the trial court passed, Marcus & Millichap moved for summary judgment on the grounds that appellants' claims were barred by limitations. Appellee argued that appellants' claims accrued on the closing date of the sale in 2008 because appellants did not plead the discovery rule. Appellee further argued that if the discovery rule applied, appellants' claims accrued, at the latest, when Taylor Petroleum defaulted on the lease in 2012. According to the motion, appellants failed to file suit within the applicable limitations period using either accrual date.

         In response to the motion for summary judgment, appellants requested leave from the trial court to amend their petition to plead the discovery rule. Appellants argued that the discovery rule applied and deferred the accrual date of their claims until they first became aware of Marcus & Millichap's misrepresentations in February of 2017. Consequently, appellants contended that a fact issue remained as to when they knew or should have known of the facts giving rise to their claims. Appellants did not file a proposed amended petition with their motion to amend.

         After a hearing, the trial court granted Marcus & Millichap's motion for summary judgment. The court subsequently severed and dismissed appellants' claims against Marcus & Millichap. This appeal followed.

         Analysis

         On appeal, appellants contend that the trial court improperly granted summary judgment and erred by denying them leave to amend their petition. Marcus & Millichap filed a cross-appeal challenging the trial court's denial of its request for attorney's fees and expenses as the prevailing party under the purchase agreement. We address the trial court's denial of appellants' motion to amend their petition first as the issue is dispositive of the appeal.

         Implied Denial

         The record does not contain an order from the trial court denying appellants' motion to amend their petition. The summary judgment order states that having considered "the argument of counsel, the pleadings on file, and the applicable law," the motion is granted. The order then dismisses appellants' claims against Marcus & ...


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