Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nowlin v. Davis

Court of Appeals of Texas, Third District, Austin

June 12, 2019

Linda S. Nowlin, Appellant
v.
Samarra Davis, Appellee

          FROM COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY NO. C-1-CV-15-010033, THE HONORABLE TODD T. WONG, JUDGE PRESIDING

          Before Justices Kelly, Smith, and Shannon [*]

          MEMORANDUM OPINION

          Bob E. Shannon, Justice

         This is 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.

         Davis's 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.

         After 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.[1] 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.

         Nowlin 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.

         After 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 misrepresentation.

         Nowlin 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.

         Each of 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 fraud).

         As 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).

         Nowlin 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 contract provides:

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 proceeding.

(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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.