Court of Appeals of Texas, Third District, Austin
Linda S. Nowlin, Appellant
Samarra Davis, Appellee
COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY NO.
C-1-CV-15-010033, THE HONORABLE TODD T. WONG, JUDGE PRESIDING
Justices Kelly, Smith, and Shannon [*]
an appeal from the judgment of the county court at law of
Travis County in a real-estate fraud case. After a bench
trial, the court rendered judgment that appellant Linda
Nowlin take nothing and that appellee Samarra Davis recover
attorney's fees. We will affirm the judgment.
2015 sale of her house at 10105 Ivanhoe Trail in Austin to
Nowlin is the genesis of the underlying lawsuit. In
connection with the parties' standard residential sales
contract issued by the Texas Real Estate Commission, Davis
delivered a "Seller's Disclosure Notice" to
Nowlin. In section five of the notice, Davis checked the
boxes indicating that she was unaware that (1) there were any
repairs or additions made without necessary permits or not in
compliance with the building code at the time; (2) there were
any notices of violations of ordinances affecting the
condition or use of the property; and (3) there were any
conditions on the property which would materially affect the
health or safety of a person.
the purchase, Nowlin discovered that Davis had failed to
disclose that a building permit, taken out by a prior owner
to make repairs and additions to the house, had not been
closed out. To close the permit, Nowlin was required
to make additional repairs costing $8, 058.73. Davis claimed
that she did not know that the previous owner had not closed
out the permit.
filed suit asserting that Davis's failure to disclose the
defect in the property "of the open building permit and
underlying defects preventing its closure" constituted
common-law fraud, statutory fraud, and fraud under the
Deceptive Trade Practices Act.
rendition of judgment, the court filed findings of fact and
conclusions of law finding, among other things, that the
repairs and additions made to the house by the prior owner
conformed to the then-existing building code and were subject
to a permit even though the permit was never closed out. The
court also found that Nowlin failed to prove any actual
damages caused by any open permit or code-compliance issue.
The court concluded that Davis's answers in the
Seller's Disclosure notice made no affirmative
argues on appeal that the evidence established that Davis
committed common-law fraud, statutory fraud, and fraud under
the Deceptive Trade Practices Act. In response, Davis
maintains that the judgment should be affirmed because Nowlin
failed to prove actual damages. We agree.
Nowlin's fraud theories requires proof of actual damages.
See Cruz v. Andrews Restoration, Inc., 364 S.W.3d
817, 823 (Tex. 2012) (fraud under the Deceptive Trade
Practices Act); Aquaplex, Inc. v. Rancho La Valencia,
Inc., 297 S.W.3d 768, 774 (Tex. 2009) (common-law
fraud); Trinity Indus. v. Ashland, Inc., 53 S.W.3d
852, 867 (Tex. App.-Austin 2001, pet. denied) (statutory
evidence of damages, Nowlin offered a spreadsheet created for
the lawsuit and assorted canceled checks. She offered no
proof that the sum paid for such repairs was reasonable. But
proof of the amounts charged and paid, standing alone, is not
enough. The rule has long been that recovery of such expenses
will be denied in the absence of evidence showing that the
charges were reasonable. Dallas Ry. & Terminal Co. v.
Gossett, 294 S.W.2d 377, 382 (Tex. 1956); Wheeler v.
Tyler S.E. Ry. Co., 43 S.W. 876, 877 (Tex. 1898).
next challenges the court's grant of attorney's fees
to Davis. The court allowed attorney's fees consistent
with the parties' sale contract. Paragraph 17 of the
17. ATTORNEY'S FEES: A Buyer, Seller, Listing Broker,
Other Broker, or escrow agent who prevails in any legal
proceeding related to this contract is entitled to
recover reasonable attorney's fees and all costs of such
(Emphasis supplied.) Nowlin argues that Paragraph 17 does not
authorize fees here because (1) her case against Davis
sounded in fraud rather than contract, and (2) Davis's
pleading requesting attorney's ...