CAUSE NO
CARTER § IN THE COUNTY COURT
§
VS. §
§
§
CARTER, CARTER
DEFENDANT’S MOTION FOR TRADITIONAL SUMMARY JUDGMENT AND NO EVIDENCE SUMMAY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Defendant, CARTER, CARTER TRUST, AND JOSE and files this, his motion for traditional summary judgment and no evidence summary judgment and for the same, respectfully shows as follows:
I.
SUMMARY
Plaintiff sued Defendant related to her purchase of real property with the address of Street Texas. Defendant was the seller of the property. Defendant now moves for summary judgment and the summary judgment evidence will disprove an essential element of each of Plaintiff’s plead causes of action. In the alternative, Defendant moves for no evidence summary judgment because Plaintiff has no evidence sufficient to prove the required elements of the plead causes of action.
II.
FACTS
Defendant first acquired the subject property on August 17, 2020 and took title subject to an existing and underlying mortgage. Defendant then attempted to refinance the existing and underlying mortgage but was delayed because of lender side issues. Around the end of November of 2020 Defendant marketed the property for sale. Plaintiff and Defendant entered a TREC form purchase agreement dated November 25, 2020. Plaintiff expressed a need to immediately occupy the property and so Plaintiff and Defendant entered into a TREC form buyer’s temporary residential lease. The existing and underlying mortgage refinance was completed in early 2021. Rather than close on the existing agreement, Plaintiff demanded alternative sales terms. Those terms were rejected by Defendant. Shortly thereafter, Plaintiff filed a TREC complaint against
Defendant as well as this immediate lawsuit.
III.
TRADITIONAL SUMMARY JUDGMENT STANDARD
A defendant may move for a traditional summary judgment any time after the lawsuit is filed. Tex. R. Civ. P. 166a(b); Zimmelman v. Harris County, 819 S.W.2d 178, 181 (Tex. App. – Houston [1st Dist.] 1991, no writ). A motion for summary judgment under Rule 166a is properly granted when the movant establishes the following: (1) there are no genuine issues of material fact on one or more elements of any cause of action on which the non-movant has the burden of proof at trial; and (2) the movant is entitled to judgment as a matter of law on a ground expressly set forth in the motion. Tex. R. Civ. P. 166a(c); See Loeffler v. Lytle Indep. Sch. Dist., 211 S.W.3d 331, 340 (Tex. App.—San Antonio 2006, pet. denied)(citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d, 546, 548-49 (Tex. 1985)). If the Defendant disproves as a matter of law one or more essential elements of the Plaintiff’s cause of action, the Defendant is entitled to a summary judgment unless the Plaintiff can either (1) identify a fact issue in the elements the defendant negated or (2) create a fact issue by producing controverting evidence that raises a fact issue on one of the elements the defendant negated. See Centeq Rlty., Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). Once the movant establishes that it is entitled to summary judgment, the burden shifts to the non-movant to show why summary judgment should not be granted. See Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989). The Court must grant a motion for summary judgment if the moving party meets its burden showing that there is no genuine issue of material fact and it is entitled to summary judgment as a matter of law. TEX. R. CIV. P. 166a(c); see Phillips v. Union Bankers Ins. Co., 812 S.W.2d 616, 617 (Tex. App. –Dallas 1991, no pet.). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true and every reasonable inference must be indulged in favor of the non-movant and any doubts must be resolved in his or her favor. Nixon, 690 S.W.2d, 546, 548-49
(Tex. 1985).
IV.
GROUNDS FOR TRADITIONAL SUMMARY JUDGMENT
Defendant moves for summary judgment based on the evidence. The evidence will show, as a matter of law, that Plaintiffs cannot recover against Defendant. Defendant also moves for summary judgment based on the pleadings. The Plaintiff cannot recover as plead.
V.
SUMMARY JUDGMENT EVIDENCE
Defendant relies on the following summary judgment evidence:
| Defense Exhibit A – | Plaintiff’s contract amendment demand |
| Defense Exhibit B – | Deed dated August 19, 2020 |
| Defense Exhibit C – | Affidavit of CARTER |
| Defense Exhibit D – | Lease Agreement |
| Defense Exhibit E – | Affidavit by JACKSON |
VI.
ARGUMENT AND AUTHORITY FOR TRADITIONAL SUMMARY JUDGMENT
Breach of Contract
Plaintiff alleges breach of contract against the Defendant. The elements of breach of contract are (1) the existence of a valid contract; (2) performance or tendered performance by the Plaintiff; (3) breach of the contract by the Defendant; (4) damages sustained by the Plaintiff as a result of the breach. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex. 2006).
Plaintiff has not performed or tendered performance. Attached to this motion is Defense
Exhibit “A.” the attachment is a demand for contract amendment sent by the Plaintiff to the Defendant. The attachment is evidence of Plaintiff’s lack of performance in fulfilling her duties under the contract. In lieu of performance, Plaintiff makes a demand to alter the terms of the contract between the parties. The evidence disproves element two. Based on the evidence, the cause of action should be dismissed.
Common Law Fraud
Plaintiff alleges common law fraud against Defendant. The elements of common law fraud are (1) the Defendant made a material representation that was false; (2) the Defendant knew the representation was false or made it recklessly as a positive assertion without any knowledge of its truth; (3) the Defendant intended to induce Plaintiff to act upon the representation; and (4) the Plaintiffs actually and justifiably relied on the representation, which caused the injury. Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51, S.W.3d 573, 577 (Tex. 2001).
Plaintiff specifically alleges Defendant “made a misrepresentation that they owned the property.” See Plaintiff’s Original Petition. Attached as Defense Exhibit “B” is the deed evidencing
Defendant’s ownership of the property. The evidence contradicts Plaintiff’s claim that Defendant made a false statement. Based on the evidence, the cause of action should be dismissed.
Statutory Fraud
Plaintiff alleges statutory fraud against Defendant. The elements of statutory fraud are (1) that the Defendant falsely promises some material action; (2) the Defendant does not intend to keep that promise; (3) the Defendant misrepresents information specifically to induce the Plaintiff to enter into the contract; (4) and the Plaintiff enters into the contract because of the false claim. Tex. Bus. & Com.
Code Ann. § 27.01 (a).
Plaintiff specifically alleges that Defendant “claimed that they owned the property.. and
assured Plaintiff that everything was fine with the home. See Plaintiff’s Original Petition. As plead, the accusations by the Plaintiff don’t fit this cause of action. The pleadings fail to identify a material action promised by the Defendant. Additionally, attached as Defense Exhibit “C” is an affidavit authored by dEFENDANT. The Court will find testimony wherein Defendant specifically denies making a material promise with the intent to not to keep the promise to induce Plaintiff into a contract.
Based on the evidence and the pleadings, the cause of action should be dismissed.
Fraud by Nondisclosure
Plaintiff alleges fraud by nondisclosure against the Defendant. Failure to disclose information is actionable only when there is a duty to disclose. The duty to disclose may arise: (1) when the parties have a confidential or fiduciary relationship; (2) when one party voluntarily discloses information; (3) when one party makes a representation which gives rise to the duty to disclose new information that the party is aware makes the earlier representation misleading or untrue; or (4) when one party makes a partial disclosure and conveys a false impression, which gives rise to the duty to speak. Solutions Consulting, Ltd., v. Gulf Greyhound Partners, Lts., 237 S.W.3d 379, 385 (Tex. App.-Houston [14th Dist.] 2007, no pet.). Whether such a duty exists is a question of law. Bradford v. Vento, 48 S.W.3d 749, 755 (Tex. 2001).
Plaintiff did not plead fraud by non-disclosure. However, she did include the claim in her responses to requests for disclosure part (c). The lack of pleading should see this claim dismissed but to the extent that any part of Plaintiff’s petition could be construed as a valid pleading of the cause,
Defendant would direct the Court to the attached Defense exhibit “C.” The exhibit is an affidavit authored by CARTER. The Court will find testimony wherein Defendant specifically denies a confidential relationship, a voluntary disclosure, a scenario where Defendant needs to amend a prior disclosure, and any scenario where Defendant made a false disclosure. Based on the evidence, the cause of action should be dismissed.
Fraudulent Inducement
Plaintiff alleges fraudulent inducement against Defendant. Fraudulent inducement is a
“species of common-law fraud” that “arises only in the context of a contract.” Anderson v. Durant, 550 S.W.3d 605, 614 (Tex. 2018). The elements of [fraudulent inducement] are (1) the Defendant made a material misrepresentation; (2) the Defendant knew at the time that the representation was false or lacked knowledge of its truth; (3) the Defendant intended that the Plaintiff should rely or act on the misrepresentation; (4) the Plaintiff relied on the misrepresentation; and (5) the Plaintiff’s reliance on the misrepresentation caused injury. Id. The “misrepresentation” occurs when the Defendant falsely promises to perform a future act while having no present intent to perform it. Id.
Plaintiff did not plead fraudulent inducement. However, she did include the claim in her responses to requests for disclosure part (c). The lack of pleading should see this claim dismissed but to the extent that any part of Plaintiff’s petition could be construed as a valid pleading of the cause,
Defendant would direct the Court to the attached Defense exhibit “C.” The exhibit is an affidavit authored by CARTER. The Court will find testimony wherein Defendant specifically denies making any representation, that he knew was false, and that he intended Plaintiff to rely on any false statements. Based on the evidence, the cause of action should be dismissed.
Misrepresentation
Plaintiff alleges non descriptive misrepresentation. However, Plaintiff does allege ‘negligent misrepresentation’ separately. Granting Plaintiff wide latitude, because Texas does not recognize ‘misrepresentation,’ Plaintiff’s claim could be liberally construed to mean fraudulent misrepresentation. The elements of fraudulent misrepresentation are (1) the Defendant made a material misrepresentation; (2) the representation was false; (3) the Defendant knew the representation was false when made or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the Defendant made the representation with the intention that it should be acted upon; (5) the representation was in fact justifiably relied upon; and (6) damage to the Plaintiff results. See Grant Thornton LLP v. Prospect High Income Fund, 314 S.W.3d 913, 923 (Tex. 2010).
Plaintiff did not plead misrepresentation. However, she did include the claim in her responses to requests for disclosure part (c). The lack of pleading should see this claim dismissed but to the extent that any part of Plaintiff’s petition could be construed as a making a claim for misrepresentation, Defendant would direct the Court to the attached Defense exhibit “C.” The exhibit is an affidavit authored by CARTER. The Court will find testimony wherein Defendant specifically denies making any representation, that he knew was false, and that he intended Plaintiff to rely on any false statements. Based on the evidence, the cause of action should be dismissed.
Negligence
Plaintiff alleges negligence against the Defendant. The elements of negligence are (1) the existence of a legal duty owed by Defendant to Plaintiff; (2) a breach of that duty; and (3) damages proximately caused by the breach. Firestone Steel Products Co. v. Barajas, 927 S.W.2s 608, 613 (Tex. 1996).
Plaintiff did not plead ordinary negligence. However, she did include the claim in her responses to requests for disclosure part (c). The lack of pleading should see this claim dismissed but to the extent that any part of Plaintiff’s petition could be construed as a making a claim for negligence, Defendant would show the Court that Plaintiff has failed to identify any duty owed between the parties. Based on the Pleadings, the cause of action should be dismissed.
Professional Negligence
Plaintiff pleads professional negligence against the Defendant based on Defendant’s profession as a realtor. Defense was not able to identify any case law or statute specifically recognizing a cause of action for professional negligence for realtors. While some states would allow the cause, Texas appears to treat professional negligence as ordinary negligence. In other words, the elements of professional negligence would be (1) the Defendant owed a duty; (2) a breach of that duty; and (3) damages. Firestone Steel Products Co. v. Barajas, 927 S.W.2s 608, 613 (Tex. 1996).
Plaintiff specifically alleges that Defendant owed her a duty as a realtor. Attached as Defense Exhibit “C” is an affidavit from CARTER, wherein Defendant testifies that while he is a realtor, he is not and was never Plaintiff’s realtor. Since there was not professional relationship between the Plaintiff and the Defendant, the cause of action should be dismissed. Based on the evidence, the cause of should be dismissed.
Gross Negligence
Plaintiff alleges gross negligence against the Defendant. The elements of gross negligence are (1) when viewed objectively from the Defendants standpoint at the time of the event, the act or omission involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the Defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others. UHal Int’l v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012).
Plaintiff specifically alleges that “[T]here could be a gas leak and Defendants were willing to let Plaintiff go into this house in this condition.” Plaintiff’s own pleading does not indicate a gas leak exists, only that a gas leak could exist. The pleadings are self-defeating, but in any event, attached as
Defense Exhibit “C” is an affidavit from CARTER. The testimony of Defendant indicates that he had no knowledge of a gas leak. Based on the pleadings and the evidence, the cause should be dismissed.
Negligent Misrepresentation
Plaintiff alleges negligent misrepresentation against the Defendant. The elements of negligent misrepresentation are (1) the Defendant made a representation in the course of its business, or in a transaction in which he had a pecuniary interest; (2) the Defendant supplied false information for the guidance of others in their business; (3) the Defendant did not exercise reasonable care or competence in obtaining or communicating the information; and (4) the Plaintiff suffered pecuniary loss by justifiably relying on the misrepresentation. Lennar Corp. v. Great Am. Ins. Co., No. 14-02-00860CV, 2005 WL 1324833, at *30 (Tex.App.—Houston [14th Dist.] June 2, 2015, no pet.).
Plaintiff did not plead negligent misrepresentation. However, she did include the claim in her responses to requests for disclosure part (c). The lack of pleading should see this claim dismissed but to the extent that any part of Plaintiff’s petition could be construed as a making a claim for negligent misrepresentation, Defendant would direct the Court to the attached Defense Exhibit “C,” which is an affidavit from CARTER. The testimony of Defendant indicates that he did not supply false information for the guidance of others. The testimony disproves an essential element and the cause of action should be dismissed.
Breach of Fiduciary Duty
Plaintiff alleges breach of fiduciary duty against Defendant. The elements of breach of fiduciary duty are (1) the fiduciary duty between the Plaintiff and the Defendant; (2) the Defendant breached his fiduciary duty to Plaintiff; and (3) the Defendant’s breach must result in injury to the Plaintiff or benefit to the Defendant. Jones v. Blume, 196 S.W.3d 440, 447 (Tex.App.—Dallas 2006, pet. denied). It is well settled that “not every relationship involving a high degree of trust and confidence rises to the stature of a fiduciary relationship.” Meyer v. Cathy, 167 S.W.3d 327, 330 (Tex. 2005); Where the underlying facts are undisputed, determination of existence, and breach, of fiduciary duties are questions of law, exclusively within the province of the Court. Id.
Plaintiff did not plead breach of fiduciary duty, however, she did include the claim in her responses to requests for disclosure part (c). The lack of pleading should see this claim dismissed but to the extent that any part of Plaintiff’s petition could be construed as a making a claim for breach of fiduciary duty, Defendant would direct the Court to the TREC rules § 531.1 which states as follows: A real estate broker or salesperson, while acting as an agent for another, is a fiduciary.
Attached as Defense Exhibit “C,” is an affidavit from CARTER. The testimony indicates that
Defendant was not Plaintiff’s realtor and was therefore not bound as a fiduciary. The evidence disproves the essential elements and the cause should be dismissed.
Perpetuation of Discrimination Problems
Plaintiff alleges that Defendant is perpetuating discrimination problems. Texas recognizes a private cause of action for racial discrimination between an employee and employer with fifteen or more employees. Otherwise, Texas does not recognize the same or similar cause of action between private citizens.
Plaintiff did not plead ‘perpetuation of discrimination problems.’ However, she did include the claim in her responses to requests for disclosure part (c). The lack of pleading should see this claim dismissed but to the extent that any part of Plaintiff’s petition could be construed as a making a claim for perpetuation of discrimination problems, Defendant would direct the Court to the attached
Defense Exhibit “C,” which is testimony proving that Defendant was not Plaintiff’s employer. The evidence disproves an essential element of the cause of action and it should be dismissed.
Deceptive Trade Practices Act Violation
Plaintiff alleges violation of the Texas Deceptive Trade Practices Act against Defendant in
various interactions across her petition; (1) Defendant failed to disclose defects; (2) Defendant lied about Plaintiff’s waiver for landlord to inspect and repair smoke alarms; and (3) Defendant stated that Plaintiff does not need a lawyer. Generally speaking, Plaintiff must prove that she is a consumer, the
Defendant violated the DTPA, and the Defendant’s actions must have proximately caused the Plaintiff’s complained harm. The elements of violation of the Texas DTPA are that (1) Plaintiff is a consumer; (2) the Defendant can be sued under the DTPA; (3) the Defendant committed one or more of the following wrongful acts: (a) a false, misleading, or deceptive act that is specifically enumerated in the “laundry list” of the Texas Business and Commerce Code § 17.46(b) and that was relied upon by the Plaintiff to the Plaintiff’s detriment; (b) a breach of an express or implied warranty; (c) any unconscionable action or course of action; (d) the use or employment of an act or practice in violation of the Texas Insurance Code chapter 541; or (e) a violation of a “tie-in” statute as authorized by Texas Business and Commerce Code § 17.50(h), which are classified as false, misleading, or deceptive acts or practices; and (4) the Defendant’s actions were a producing cause of the Plaintiff’s damages. See Texas Business & Commerce Code § 17.41 to 17.63; Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex. 1996).
Turning attention to Plaintiff’s specific complaints, Plaintiff alleges that Defendant failed to disclose defects. Broadly speaking, this could be construed to be a claim for a violation under the “laundry list.” Specifically, the enumerated “laundry list” violation is that [Defendant] failed to disclose information about goods or services that was known at the time of the transaction if the failure to disclose was intended to induce the consumer to enter into a transaction that the consumer would not have entered into if the information had been disclosed. See Tex. Bus. & Com. Code § 17.46(b)(24). Defendant would direct the Court to Defense Exhibit “C,” which is testimony proving that Defendant had no knowledge of any “defects.” The same exhibit is evidence that Defendant did not intend to induce Plaintiff into the transaction.
Plaintiff next alleges that Defendant lied about Plaintiff’s waiver for landlord to inspect smoke alarms. Broadly speaking, this could be construed as an unconscionable act. Attached as exhibit “D” is a true and correct copy the lease agreement between Plaintiff and Defendant. The lease was signed by Plaintiff and includes a provision, underlined, which states “Tenant expressly waives Landlord’s duty to inspect and repair smoke alarms.” The evidence is proof that Defendant did not lie and defeats Plaintiff’s claim, which should be dismissed.
Plaintiff next alleges Defendant told her she does not need a lawyer. Broadly speaking, this could be an unconscionable act. Attached as exhibit “C,” which is testimony that proves that Defendant did not instruct Plaintiff to not hire an attorney. The evidence defeats Plaintiff’s claim, which should be dismissed.
Discrimination based on race and age and towards their colleagues
Plaintiff claims Defendant discriminated against her on the basis of race and age, and under the same heading, Plaintiff claims that Defendant discriminated against all other realtors by being dishonest. Texas recognizes a private cause of action for racial discrimination between an employee and employer with fifteen or more employees. Otherwise, Texas does not recognize the same or similar cause of action between private citizens. Accordingly, the claim should be dismissed. Further,
Plaintiff has no standing to assert claims belonging to “all realtors.” Accordingly, the claim should be dismissed.
Reparations
Plaintiff makes a claim for reparations against Defendant. Texas does not recognize a claim for reparations and if anything, it would be a theory of recovery. In any event, the claim should be dismissed based on the pleadings.
VII.
NO EVIDENCE SUMMARY JUDGMENT
Texas Rule of Civil Procedure 166a(i) states:
After an adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.
This case was filed on July 22, 2021. The parties have exchanged written discovery. Plaintiff has not requested any additional discovery. There has been an adequate time for discovery.
Breach of Contract
Plaintiff alleges breach of contract against the Defendant. The elements of breach of contract are (1) the existence of a valid contract; (2) performance or tendered performance by the Plaintiff; (3) breach of the contract by the Defendant; (4) damages sustained by the Plaintiff as a result of the breach. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex. 2006).
Plaintiff has no evidence of and cannot prove elements two, three, and four. The cause of action should be dismissed.
Common Law Fraud
Plaintiff alleges common law fraud against Defendant. The elements of common law fraud are (1) the Defendant made a material representation that was false; (2) the Defendant knew the representation was false or made it recklessly as a positive assertion without any knowledge of its truth; (3) the Defendant intended to induce Plaintiff to act upon the representation; and (4) the Plaintiffs actually and justifiably relied on the representation, which caused the injury. Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51, S.W.3d 573, 577 (Tex. 2001).
Plaintiff has no evidence of and cannot prove elements one, two, three, and four. The cause of action should be dismissed.
Statutory Fraud
Plaintiff alleges statutory fraud against Defendant. The elements of statutory fraud are (1) that the Defendant falsely promises some material action; (2) the Defendant does not intend to keep that promise; (3) the Defendant misrepresents information specifically to induce the Plaintiff to enter into the contract; (4) and the Plaintiff enters into the contract because of the false claim. Tex. Bus. & Com. Code Ann. § 27.01 (a).
Plaintiff has no evidence of and cannot prove elements one, two, three, and four. The cause of action should be dismissed.
Fraud by Nondisclosure
Plaintiff alleges fraud by nondisclosure against the Defendant. Failure to disclose information is actionable only when there is a duty to disclose. The duty to disclose may arise: (1) when the parties have a confidential or fiduciary relationship; (2) when one party voluntarily discloses information; (3) when one party makes a representation which gives rise to the duty to disclose new information that the party is aware makes the earlier representation misleading or untrue; or (4) when one party makes a partial disclosure and conveys a false impression, which gives rise to the duty to speak. Solutions Consulting, Ltd., v. Gulf Greyhound Partners, Lts., 237 S.W.3d 379, 385 (Tex. App.-Houston [14th Dist.] 2007, no pet.). Whether such a duty exists is a question of law. Bradford v. Vento, 48 S.W.3d 749, 755 (Tex. 2001).
Plaintiff has no evidence of and cannot prove that Defendant owed a duty to disclose. Plaintiff also has no evidence that Defendant did not violate any duty. The cause of action should be dismissed.
Fraudulent Inducement
Plaintiff alleges fraudulent inducement against Defendant. Fraudulent inducement is a
“species of common-law fraud” that “arises only in the context of a contract.” Anderson v. Durant, 550 S.W.3d 605, 614 (Tex. 2018). The elements of [fraudulent inducement] are (1) the Defendant made a material misrepresentation; (2) the Defendant knew at the time that the representation was false or lacked knowledge of its truth; (3) the Defendant intended that the Plaintiff should rely or act on the misrepresentation; (4) the Plaintiff relied on the misrepresentation; and (5) the Plaintiff’s reliance on the misrepresentation caused injury. Id. The “misrepresentation” occurs when the Defendant falsely promises to perform a future act while having no present intent to perform it. Id. Plaintiff has no evidence of and cannot prove elements one, two, three, four, and five. The cause of action should be dismissed.
Misrepresentation
Plaintiff alleges non descriptive misrepresentation. However, Plaintiff does allege ‘negligent misrepresentation’ separately. Granting Plaintiff wide latitude because Texas does now recognize
‘misrepresentation,’ Plaintiff’s claim can be liberally construed to be fraudulent misrepresentation. The elements of fraudulent misrepresentation are (1) the Defendant made a material misrepresentation; (2) the representation was false; (3) the Defendant knew the representation was false when made or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the Defendant made the representation with the intention that it should be acted upon; (5) the representation was in fact justifiably relied upon; and (6) damage to the Plaintiff results. See Grant Thornton LLP v. Prospect High Income Fund, 314 S.W.3d 913, 923 (Tex. 2010).
Plaintiff has no evidence of and cannot prove elements one, two, three, four, five, and six. The cause of action should be dismissed.
Negligence
Plaintiff alleges negligence against the Defendant. The elements of negligence are (1) the existence of a legal duty owed by Defendant to Plaintiff; (2) a breach of that duty; and (3) damages proximately caused by the breach. Firestone Steel Products Co. v. Barajas, 927 S.W.2s 608, 613 (Tex. 1996).
Plaintiff has no evidence of and cannot prove elements one, two, and three. The cause of action should be dismissed.
Professional Negligence
Plaintiff pleads professional negligence against the Defendant based on Defendant’s profession as a realtor. Defense was not able to identify any case law or statute specifically recognizing a cause of action for professional negligence for realtors. While some states would allow the cause, Texas appears to treat professional negligence as ordinary negligence. In other words, the elements of professional negligence would be (1) the Defendant owed a duty; (2) a breach of that duty; and (3) damages. Firestone Steel Products Co. v. Barajas, 927 S.W.2s 608, 613 (Tex. 1996). Plaintiff has no evidence of and cannot prove elements one, two, and three. The cause should be dismissed.
Gross Negligence
Plaintiff alleges gross negligence against the Defendant. The elements of gross negligence are (1) when viewed objectively from the Defendants standpoint at the time of the event, the act or omission involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the Defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others. U-
Hal Int’l v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012).
Plaintiff has no evidence of and cannot prove elements one and two. The cause of action should be dismissed.
Negligent Misrepresentation
Plaintiff alleges negligent misrepresentation against the Defendant. The elements of negligent misrepresentation are (1) the Defendant made a representation in the course of its business, or in a transaction in which he had a pecuniary interest; (2) the Defendant supplied false information for the guidance of others in their business; (3) the Defendant did not exercise reasonable care or competence in obtaining or communicating the information; and (4) the Plaintiff suffered pecuniary loss by justifiably relying on the misrepresentation. Lennar Corp. v. Great Am. Ins. Co., No. 14-02-00860CV, 2005 WL 1324833, at *30 (Tex.App.—Houston [14th Dist.] June 2, 2015, no pet.).
Plaintiff has no evidence of and cannot prove elements one, two, three, and four. The cause of action should be dismissed.
Breach of Fiduciary Duty
Plaintiff alleges breach of fiduciary duty against Defendant. The elements of breach of fiduciary duty are (1) the fiduciary duty between the Plaintiff and the Defendant; (2) the Defendant breached his fiduciary duty to Plaintiff; and (3) the Defendant’s breach must result in injury to the Plaintiff or benefit to the Defendant. Jones v. Blume, 196 S.W.3d 440, 447 (Tex.App.—Dallas 2006, pet. denied).
Plaintiff has no evidence of and cannot prove elements one, two, and three. The cause of action should be dismissed.
Perpetuation of Discrimination Problems
Plaintiff alleges that Defendant is perpetuating discrimination problems. Texas recognizes a private cause of action for racial discrimination between an employee and employer with fifteen or more employees. Otherwise, Texas does not recognize the same or similar cause of action between private citizens.
Plaintiff has no evidence of and cannot prove that Defendant employed her, that Defendant is subject to state and federal regulations concerning racial discrimination in the workplace, and that
Defendant committed any discriminatory action. The cause of action should be dismissed.
Deceptive Trade Practices Act Violation
Plaintiff alleges violation of the Texas Deceptive Trade Practices Act against Defendant in various interactions across her petition; (1) Defendant failed to disclose defects; (2) Defendant lied about Plaintiff’s waiver for landlord to inspect and repair smoke alarms; and (3) Defendant stated that Plaintiff does not need a lawyer. Generally speaking, Plaintiff must prove that she is a consumer, the
Defendant violated the DTPA, and the Defendant’s actions must have proximately caused the Plaintiff’s complained harm. The elements of violation of the Texas DTPA are that (1) Plaintiff is a consumer; (2) the Defendant can be sued under the DTPA; (3) the Defendant committed one or more of the following wrongful acts: (a) a false, misleading, or deceptive act that is specifically enumerated in the “laundry list” of the Texas Business and Commerce Code § 17.46(b) and that was relied upon by the Plaintiff to the Plaintiff’s detriment; (b) a breach of an express or implied warranty; (c) any unconscionable action or course of action; (d) the use or employment of an act or practice in violation of the Texas Insurance Code chapter 541; or (e) a violation of a “tie-in” statute as authorized by Texas Business and Commerce Code § 17.50(h), which are classified as false, misleading, or deceptive acts or practices; and (4) the Defendant’s actions were a producing cause of the Plaintiff’s damages. See Texas Business & Commerce Code § 17.41 to 17.63; Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex. 1996).
Plaintiff has no evidence of and cannot prove any of the alleged violations. The cause of action should be dismissed.
Reparations
Plaintiff plead reparations against Defendant. Texas does not recognize a cause of action for reparations. Construed liberally, the legal concept of reparations involves various theories of recovery but nowhere in the United State is reparations a standalone cause of action.
Plaintiff has no evidence of and cannot prove any cause of action wherein reparations is a recognized avenue of recovery. To the extent the claim is a cause of action, the cause should be dismissed.
VIII.
REQUEST FOR ATTORNEY’S FEES
Defendant requests that the Court award its attorneys’ fees. Attached as Exhibit “A” is the TREC contract between the parties. Section 17 is an attorneys’ fee provision which indicates that the prevailing party in a legal action related to the contract is entitled to recovery attorney’s fees and costs. Attached as Exhibit “E” is the declaration of ATTORNEY supporting the request and award for attorneys’ fees.
WHEREFORE, PREMISES CONSIDERED, Defendant, CARTER, respectfully prays that the Court grant its motion his Motion for Traditional Summary Judgment and No Evidence
Motion for Summary Judgment and enter a final judgment that Plaintiff take nothing against Defendant on all causes of action alleged by Plaintiff, that Defendant be awarded his attorneys’ fees, and for such other and further relief, in law or equity, to which defendant may show itself to be justly entitled.
Respectfully submitted,
Attorney for CARTER
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