Randy Hibler v. Nancy Groce Puckett, Individually and as Representative of the Estate of Larry C. Groce, Jr.

11th Court of Appeals Eastland, Texas Memorandum Opinion Randy Hibler Appellant Vs. No. 11-04-00019-CV -- Appeal from Taylor County Nancy Groce Puckett, Individually and as Representative of the Estate of Larry C. Groce, Jr. Appellee Nancy Groce Puckett and her now deceased husband, Larry C. Groce, Jr., sold their home in Fairway Oaks to Randy Hibler and Debbie Hibler. Three years after the sale, Randy Hibler sued Puckett for various causes of action, including fraud and breach of contract. The trial court granted summary judgment for Puckett. We modify and affirm. On March 29, 1999, appellant purchased residential property at 61 Glen Abbey in the Fairway Oaks Addition to the City of Abilene. Appellant purchased the property from Larry C. Groce, Jr., and Nancy Groce Puckett. On June 24, 2002, appellant brought suit against the real estate company that sold him the house, its agent, and Puckett. Appellant alleged that Puckett made various misrepresentations prior to appellant=s purchase of the property. These alleged misrepresentations formed the basis of appellant=s causes of action for common law fraud, fraud in a real estate transaction, negligence per se, DTPA[1] violations, and breach of contract. On June 26, 2003, Puckett filed her first amended motion for summary judgment. The motion contained both traditional and no-evidence grounds for summary judgment. See TEX.R.CIV.P. 166a(c) & 166a(i). On traditional grounds, Puckett asserted that, for each cause of action, the statute of limitations had passed prior to appellant filing suit. On no-evidence grounds, Puckett argued that there was no evidence to support any of appellant=s causes of action. The trial court heard the motion on July 25, 2003. On September 22, 2003, the trial court granted summary judgment in favor of Puckett on all grounds. On October 2, 2003, the trial court signed an order of severance transferring from the suit all of appellant=s claims against Puckett which were disposed of by summary judgment. The severance finalized the summary judgment; and, thereafter, appellant brought this appeal. Appellant argues eight issues on appeal. In his first three issues, appellant asserts that the trial court erred in granting Puckett=s motion for summary judgment. In his fourth issue, he asserts that the trial court heard the motion for summary judgment prematurely, nearly three months prior to the expiration date of the discovery period. In his fifth issue, he asserts that the trial court erred in denying his motion for reconsideration of summary judgment. In his sixth and eighth issues, he asserts that the trial court erred in denying his motion for new trial and consideration of newly discovered evidence. In his seventh issue, he asserts that the trial court erred in its award of attorney=s fees to Puckett. We first address whether the motion for summary judgment was properly granted. When a trial court=s order granting summary judgment does not specify the ground or grounds relied upon for its ruling, summary judgment will be affirmed on appeal if any of the summary judgment grounds advanced by the movant are meritorious. Dow Chemical Company v. Francis, 46 S.W.3d 237, 242 (Tex.2001); Sunshine Mining & Refining Company v. Ernst & Young, L.L.P., 114 S.W.3d 48, 51-52 (Tex.App. - Eastland 2003, no pet=n). Because we believe that the no-evidence grounds are dispositive of this appeal, we will not address Puckett=s traditional grounds for summary judgment. In reviewing a no-evidence summary judgment, we will not consider summary judgment evidence propounded by the movant; and we will accept as true evidence in favor of the non-movant, indulging every reasonable inference and resolving all doubts in favor of the non-movant. Hight v. Dublin Veterinary Clinic, 22 S.W.3d 614, 619 (Tex.App. - Eastland 2000, pet=n den=d). The question then becomes whether the summary judgment evidence presented by the non-movant, when so considered, is some evidence that raises a material issue of fact. Hight v. Dublin Veterinary Clinic, supra. The trial court properly granted the no-evidence summary judgment if appellant failed to bring forth more than a mere scintilla of evidence to raise a genuine issue of material fact as to an essential element of appellant=s claims. Hight v. Dublin Veterinary Clinic, supra. Less than a mere scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact, so that the legal effect is that there is no evidence. Hight v. Dublin Veterinary Clinic, supra. More than a mere scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Hight v. Dublin Veterinary Clinic, supra. In accordance with the above standard, we will not consider the evidence that Puckett attached to her motion for summary judgment. We will consider only the evidence presented by the non-movant in his response to Puckett=s first amended motion for summary judgment. We disagree with appellant=s assertion, however, that, because Puckett attached evidence to her motion, we should treat it as a traditional summary judgment motion. Appellant argues that we should adopt the reasoning of the Waco Court of Appeals in Grimes,[2] and examine this appeal under the traditional summary judgment standard of review. Appellant further asserts that the Grimes decision and our decision in Hight v. Dublin Veterinary Clinic, supra, direct trial courts to either disregard no-evidence motions that include evidence or to place the burden of proof on the movant. Our decision in Hight does no such thing. To the extent the Grimes decision does so, we note that the Texas Supreme Court specifically citing Grimes disapproved of decisions that hold or imply that, if a party attaches evidence to a motion for summary judgment, any request for summary judgment under Rule 166a(i) will be disregarded. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex.2004). We will not disregard Puckett=s no-evidence motion, and we reaffirm that the burden of proof in a no-evidence summary judgment is on the non-movant to produce evidence that raises a fact issue on the challenged elements. See Howell v. Hilton Hotels Corporation, 84 S.W.3d 708, 711-12 (Tex.App. - Houston [1st Dist.] 2002, pet=n den=d). One challenged element in each of three of appellant=s causes of action (common law fraud, statutory fraud, and violation of the DTPA) is that Puckett made a false representation to appellant. The elements of common law fraud are the following: (1) a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the representation was made with the intention that it be acted upon by the other party; (5) the party acted in reliance upon the representation; and (6) the party suffered injury. Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 524 (Tex.1998). The statutory cause of action for fraud, under TEX. BUS. & COM. CODE ANN. ' 27.01 (Vernon 2002), differs only from the common-law cause of action in that the statute does not require proof of knowledge or recklessness as a prerequisite to the recovery of actual damages. Larsen v. Carlene Langford & Associates, Inc., 41 S.W.3d 245, 249 (Tex.App. - Waco 2001, pet=n den=d). A false representation is still required. Similarly, the DTPA requires that the defendant engaged in a false, misleading, or deceptive act. TEX. BUS. & COM. CODE ANN. '17.50(a)(1) (Vernon 2002). In his second amended petition, appellant alleged that Puckett made the following representations: (1) that the property was not subject to mandatory membership in a homeowner=s association; (2) that the property had a new roof; (3) that the property was not subject to any deed restrictions; (4) that no part of the property encroached onto another=s property; and (5) that the property was in compliance with applicable city codes. With each of these allegations, appellant failed to either provide evidence that Puckett made such a representation or, if she did, that appellant failed to provide evidence that the representation was false. First, appellant provided no evidence that Puckett made a false representation about mandatory membership in a homeowner=s association. Appellant did provide the trial court with a copy of the residential sales contract, which contains a representation by Puckett that the property was not subject to mandatory membership in a homeowner=s association. Appellant, however, did not provide any evidence that this was a false representation. In fact, appellant=s own evidence established that membership in the homeowner=s association was voluntary. Appellant submitted excerpts from the neighborhood directory, including the association bylaws. Article II, section 2.2 of the bylaws stated: AAll property owners owning property within the Fairway Oaks development area shall be encouraged to join the Association on a voluntary basis.@ Appellant also claims that a statement in the seller=s disclosure notice stating that Puckett was not aware of any homeowner=s association, maintenance fees, or assessments is evidence of a misrepresentation. We disagree. A seller=s disclosure notice is evidence of what the seller claimed to be aware of or unaware of. Alone, it is not evidence of a misrepresentation. For there to be evidence of a false representation, appellant needed to present evidence contradicting Puckett=s statement that she was unaware of such fees. Appellant=s own evidence, however, established that the homeowner=s association had no fees or assessments. The neighborhood directory stated in a AMessage from the President@ that directory advertising was the association=s Aonly source of income@ because the association had Ano dues.@ If the president of the homeowner=s association stated that there were no association fees, we do not see how a statement by Puckett that she was unaware of such fees could be considered evidence of a false representation. Second, appellant did not provide any evidence of a representation by Puckett that the property had a new roof. The only evidence appellant provided concerning any representation by Puckett about the roof was a statement in the seller=s disclosure notice that the roof was six years old and made out of wood shingles. Appellant provided no evidence to contradict this representation. The allegations in his pleadings are not evidence. Third, appellant did not provide any evidence of a false representation by Puckett concerning deed restrictions. It was not enough for appellant to provide evidence that there were deed restrictions or evidence that deed restrictions were violated. The heart of appellant=s claim, and what he needed to provide evidence of, must be that Puckett made misrepresentations about the presence or absence of deed restrictions. Appellant failed to do so. To prove that there were deed restrictions, appellant submitted the association=s declaration of covenants, conditions, and restrictions. To prove that these restrictions were violated, appellant submitted a letter from the Fairway Oaks Homeowner=s Association declaring appellant in violation of deed restrictions. Appellant submitted no evidence, however, that Puckett made any representations concerning these restrictions, other than the seller=s disclosure notice, which stated that she was unaware of any violations of deed restrictions. Appellant presented no evidence to contradict this statement. Appellant also provided no evidence that Puckett made any representations about the property encroaching on the property of another or that the property was in compliance with applicable city codes. Appellant did submit a letter from the City of Abilene instructing him to remove a sewer line, but this is not evidence that Puckett made any representation concerning either the sewer line or applicable city codes. In summary, a false representation or, for the DTPA, a false, deceptive, or misleading act, is an essential element of appellant=s claims; but appellant provided the trial court with no evidence of any representations or actions by Puckett that were false or deceptive. Appellant seems to stake much of his case on the seller=s disclosure notice, but any statements on this notice are only evidence of what Puckett claimed to be aware of or unaware of. Without any evidence to contradict those statements, the notice alone provides less than a mere scintilla of evidence of misrepresentation or deception. Appellant also alleged that Puckett committed negligence per se by violating Section 27.01, fraud in a real estate transaction. However, there can be no negligence per se if there is no evidence that the statute was violated. See Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 549 (Tex.1985). Because we find that there is no evidence of a false representation, we also find that there is no evidence that the statute was violated. Appellant further provided no evidence that the unexcused violation of this statute constitutes negligence as a matter of law because this statute was designed to prevent injuries to a class of persons to which appellant belongs. See Nixon v. Mr. Property Management Company, Inc., supra. Finally, appellant asserts a cause of action for breach of contract. For this claim, appellant needed to provide evidence of a contract between the parties, his own performance of the contract, defendant=s breach of the terms of the contract, and damages sustained by appellant as a result of the breach. Valero Marketing & Supply Company v. Kalama International, 51 S.W.3d 345 (Tex.App. - Houston [1st Dist.] 2001, no pet=n). We find that appellant provided no evidence of a breach by Puckett. Appellant alleges that the home he contracted for is different than the home Puckett delivered. The basis of this claim, as with appellant=s other causes of action, is the alleged misrepresentations made by Puckett. As explained above, however, appellant provided no evidence of these misrepresentations. We overrule appellant=s first three issues on appeal. In appellant=s fourth issue on appeal, he asserts without argument or authority that the trial court erred in hearing Puckett=s motion for summary judgment prior to the expiration of the discovery deadline. When a party contends that it has not had an adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance. Tenneco Inc. v. Enterprise Products Company, 925 S.W.2d 640, 647 (Tex.1996). Appellant never filed or requested a motion for continuance either prior to or during the summary judgment hearing. We overrule appellant=s fourth issue on appeal. See TEX.R.APP.P. 38.1(h). In appellant=s fifth issue on appeal, he asserts, without argument or authority, that the trial court erred in denying his motion for reconsideration of summary judgment. Issues on appeal must be supported by arguments and authorities; and, if not so supported, the issues are waived. Trenholm v. Ratcliff, 646 S.W.2d 927, 934 (Tex.1983); see Rule 38.1(h). We overrule appellant=s fifth issue on appeal. In appellant=s sixth and eighth issues on appeal, he asserts that the trial court erred in denying his motion for new trial and to consider newly discovered evidence. We disagree. Whether a motion for new trial will be granted or denied lies within the sound discretion of the trial court, and the court=s decision will not be disturbed absent a manifest abuse of such discretion. Brown v. Hopkins, 921 S.W.2d 306, 311 (Tex.App. - Corpus Christi 1996, no pet=n). When a trial court refuses to grant a new trial based on newly discovered evidence, every reasonable presumption will be made to affirm the trial court=s decision. Brown v. Hopkins, supra. We find nothing in the record to indicate that the trial court abused its discretion. A party who seeks a new trial on the ground of newly discovered evidence must satisfy the court that (1) the evidence came to his knowledge since the trial, (2) it was not owing to want of due diligence that the evidence had not come to his attention sooner, (3) the evidence is not cumulative, and (4) the evidence is so material that it would probably produce a different result if a new trial were granted. Brown v. Hopkins, supra at 310. Each of these elements must be established by affidavit. Brown v. Hopkins, supra at 310-11. After reviewing appellant=s motion for new trial, we conclude that appellant did not establish these elements. We overrule appellant=s sixth and eighth issues on appeal. In appellant=s seventh issue on appeal, he asserts that the trial court erred in awarding attorney=s fees to Puckett. The trial court ordered that Puckett recover from appellant: [T]he sum of $4,000.00 in reasonable trial attorneys fees; plus an additional $5,000.00 in reasonable appellate attorney fees in the event the case is appealed to the Court of Appeals; plus an additional $5,000.00 in reasonable appellate attorneys fees in the event that this case is appealed to the Supreme Court. First, appellant alleges that a party must recover damages before that party can recover attorney=s fees. We disagree. The law appellant refers to in his brief governs situations in which there is no preexisting agreement between the parties concerning attorney=s fees. In this case, however, the real estate sales contract out of which this lawsuit arose contains a provision regarding attorney=s fees. Paragraph 17 of the contract states: The prevailing party in any legal proceeding brought under or with respect to the transaction described in this contract is entitled to recover from the non-prevailing party all costs of such proceeding and reasonable attorney=s fees. The terms of the contract do not require that the prevailing party recover damages, and appellant provides no argument in his brief that the terms of the contract are unreasonable. Appellant also does not argue that the amount of trial attorney=s fees, as calculated by Puckett=s attorney, Diann Waddill, is unreasonable. We, therefore, affirm the award of $4,000.00 in reasonable trial attorney=s fees. Appellant also argues, however, that it was improper for the trial court to award Puckett Aunconditional@ attorney=s fees of $5,000.00 if the case was appealed to the Court of Appeals and an additional $5,000.00 if the case was appealed to the Texas Supreme Court, regardless of the outcome on appeal. We agree. A trial court may not penalize a party for taking a successful appeal. Sipco Services Marine, Inc. v. Wyatt Field Service Company, 857 S.W.2d 602, 607 (Tex.App. - Houston [1st Dist.] 1993, no writ). Furthermore, the contract states that only the Aprevailing party@ is entitled to attorney=s fees. The trial court=s award of reasonable appellate attorney=s fees to Puckett must be conditioned upon Puckett prevailing on appeal. The error is harmless, however, because Puckett is the prevailing party in this appeal. See Sipco Services Marine, Inc. v. Wyatt Field Service Company, supra at 608. We, therefore, affirm the award of $5,000.00 in reasonable appellate attorney=s fees to Puckett. We will, however, modify the trial court=s judgment to reflect that, if appellant appeals this case to the Texas Supreme Court, Puckett will be entitled to an additional $5,000.00 in appellate attorney=s fees only if Puckett prevails at the Supreme Court. See TEX.R.APP.P. 43.2(b). As modified, the judgment of the trial court is affirmed. JIM R. WRIGHT JUSTICE June 9, 2005 Not designated for publication. See TEX.R.APP.P. 47.2(a). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J. [1]Deceptive Trade Practices-Consumer Protection Act, TEX. BUS. & COM. CODE ANN. ' 17.41 et seq. (Vernon 2002 & Supp. 2004 - 2005). [2]Grimes v. Andrews, 997 S.W.2d 877, 880 n.1 (Tex.App. - Waco 1999, no pet=n).