CAUSE NO: __________
| starks, VS. CARTER, CARTER TRUST, AND JOSE | IN THE COUNTY COURT |
RESPONSE TO DEFENDANT’S MOTION FOR TRADITIONAL SUMMARY JUDGMENT AND NO EVIDENCE SUMMARY JUDGMENT
COMES NOW Plaintiff, pro se, and hereby files this Response to Defendant’s Motion for Traditional Summary Judgment and No Evidence Summary Judgment. Plaintiff states as follows:
- TRADITIONAL SUMMARY JUDGMENT
- Standard for Traditional Summary Judgment
In a traditional motion for summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.XXX. Furtrher, a party that files a Motion for Temporary Summary Judgment must submit sufficient evidence establishing on its face that no genuine issue exists as to any material fact and that he is therefore entitled to judgment as a matter of law. Tex.XXX (citations omitted). To be entitled to traditional summary judgment, a defendant must conclusively negate at least one essential element of each of the plaintiff’s causes of action or conclusively establish each element of an affirmative defense. XXX. Evidence is conclusive only if reasonable people could not differ in their conclusions. City of XXX
Further, when a party moving for summary judgment meets his burden of establishing each element of his claim on which he seeks summary judgment, the burden then shifts to the other party to disprove or raise an issue of fact as to at least one of those elements. Amedisys,XXX. Although the nonmoving party is not required to marshal all of its proof, he must present countervailing evidence that raises a genuine fact issue on the challenged elements. XXX.
- Plaintiff’s Complaint raises genuine issues of material fact
Defendants moving for summary judgment must expressly present and conclusively prove all essential elements of their defense as a matter of law; there can be no genuine issues of material fact. City of XXX.
“In deciding whether there is a disputed material fact precluding summary judgment, evidence favorable to the non-movant will be taken as true, every reasonable inference must be indulged in favor of the non-movant, and any doubts resolved in its favor. Provident Life Accident Ins. XXX).
It is also worth noting that the Courts place a high threshold of proof to grant a Motion for Summary Judgment. The Court in XXX held in this regard that a summary judgment must stand or fall on its own merits, and the non-movant’s failure to except or respond cannot supply by default the grounds for summary judgment or the summary judgment proof necessary to establish the movant’s right. In the instant action, Defendant alleges that Plaintiff has not sufficiently pled the elements in the claims. On the contrary, Plaintiff avers that the allegations in the Complaint were sufficiently pleaded. Notably, Plaintiff presented all facts and laid out proper basis for the claims in the Complaint. Therefore, Plaintiff avers that this Court should dismiss Defendant’s allegations in Defendant’s Motion for Traditional Summary Judgment.
Breach of Contract
The Defendant alleges that Plaintiff has not performed the Plaintiff’s part of the obligations under the agreement. For that reason, Defendant argues that Plaintiff’s demand to alter the terms of the agreement fails in that regard.
On the contrary, Plaintiff avers that there was a contractual relationship that existed between the parties. Under Texas law, “[t]he elements of a breach of contract claim are: (1) the existence of a valid contract between plaintiff and defendant; (2) the plaintiff’s performance or tender of performance; (3) the defendant’s breach of the contract; and (4) the plaintiff’s damage as a result of the breach.” XXX. Further, it is a general rule in Texas that a party must show that he has complied with his obligations under the contract to be entitled to specific performance. XXX. Plaintiff maintains that she performed her obligations under the contract by starting to make payments to the Defendants. Plaintiff maintains that this amounts to performance of her obligations under the contract.
Common law fraud
The Defendant alleges that they did not make a false statement and/or misrepresentation regarding the ownership of the property. And that based on that reason, Plaintiff’s cause of action for common law fraud should be dismissed.
In Texas, to prevail on a common law fraud claim in Texas, one must show that a misrepresentation caused him injury. XXX. Plaintiff avers that there are several examples to show how Defendants held out to be selling a fault-free home to Plaintiff. For instance, Defendants gave the lockbox number to give the impression that they were fully confident with the state of the house and that the house was free from any defect. Besides, when one walked into the house, it looked as if it had been completely renovated. Defendants had assured the Plaintiff that everything was fine with the home-there are no problems with the home.
Plaintiff avers that this alone, including other instances, is proof of the Defendants’ misrepresentation.
Statutory fraud
The Defendant alleges that they did not make any promise to the Plaintiff regarding the ownership of the property. And that based on that reason, Plaintiff’s cause of action for statutory fraud should be dismissed.
“The elements of statutory fraud under section 27.01 of the Texas Business and Commerce Code are essentially identical to the elements of common law fraud except that section 27.01 does not require proof of knowledge or recklessness as a prerequisite to the recovery of actual damages.” XXX, pet. denied) (“Emphasis added). In that regard, Plaintiff alleges that the Defendants made promises to Plaintiff as to the state of the house. For instance, the Defendants told Plaintiff that the house was fully renovated. Accordingly, the Plaintiff moved in the house upon which she realized there was over $30,000 worth of renovations to be done yet the Defendants had informed her that the house was already renovated. This is an example of the Defendants’ fraudulent conduct.
Fraud by non-disclosure
The Defendant alleges that there was no confidential relationship, voluntary disclosure, or a scenario where Defendant needed to amend a prior disclosure and any scenario where Defendant made a false disclosure. And that based on that reason, Plaintiff’s cause of action for fraud by non-disclosure should be dismissed.
“Fraud by non-disclosure, a subcategory of fraud, occurs when a party has a duty to disclose certain information and fails to disclose it.” XXX Further, according to Texas Property Code Section § 5.008, “[disclosure forms] must be delivered to the buyer “on or before the effective date” of the property purchase contract. However, Defendants sent the disclosure one week later saying that the electricity in the house does not work. Besides, in the contract, the Defendants had checked a box stating that the disclosure had already been given.
Fraudulent inducement
The Defendant alleges that he did not make any representation, that he knew was false, and that he intended Plaintiff to rely on any false statements. And that based on that reason, Plaintiff’s cause of action for fraudulent inducement should be dismissed.
“To state a claim for fraudulent inducement under Texas law, a plaintiff must prove the basic elements of fraud.” XXXX. “The elements of a fraud cause of action under Texas law are: (1) a material misrepresentation; (2) that 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 speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) suffered injury. “XXX. Fraudulent inducement “is a particular species of fraud that arises only in the context of a contract, and the elements of fraud must be established as they relate to an agreement between the parties.” XXX, pet. denied) (XXX).
In light of the foregoing, Plaintiff avers that the Defendants made several misrepresentations which the Defendants knew were wrong at the time they were making them. For instance, the Defendant informed Plaintiff that he was studying to become a Broker and hoped to get his license by next year. He said that his partner was a broker. Plaintiff was therefore led to believe that the sale of the house would be according to the high standards of the Texas Real Estate Commission (TREC).
Further, Defendants asked the Plaintiff if she would agree to put down the down payment on the house now rather than waiting. Believing in the Defendants because the Defendants said he was studying to become a broker and the Defendants said that his partner was a real estate agent/broker and having read how stringent the real estate laws are in Texas, the Plaintiff felt comfortable with agreeing to do this.
Further, when Defendants sent the contract to the Plaintiff, she stated to the Defendants that she would have an attorney to review the contract. Interestingly, the Defendants said that that was not necessary because it was only a standard contract used in Texas. They said this to conceal the fact that there were defects in the property and any other issue that the attorney would have found out.
When Plaintiff relied on the Defendants’ misrepresentations and moved in the house, she noticed that there were things that hadn’t been fixed or were fixed improperly. The garage door openers didn’t work and the fan above the stove was dead bugs.
Misrepresentation
The Defendant alleges that he did not make any representation, that he knew was false, and that he intended Plaintiff to rely on any false statements. And that based on that reason, Plaintiff’s cause of action for fraudulent inducement should be dismissed.
“A claim for misrepresentation under Texas law contemplates that the ‘false information’ provided by the defendant is a misstatement of existing fact.”Clardy Mfg. Co. v. Marine Midland Bus. Loans Inc., 88 F.3d 347, 357 (5th Cir. 1996). Plaintiff avers that the Defendants made several misrepresentations which the Defendants knew were wrong at the time they were making them. For instance, the Defendant informed Plaintiff that he was studying to become a Broker and hoped to get his license by next year. He said that his partner was a broker. Plaintiff was therefore led to believe that the sale of the house would be according to the high standards of the Texas Real Estate Commission (TREC).
Further, Defendants asked the Plaintiff if she would agree to put down the down payment on the house now rather than waiting. Believing in the Defendants because the Defendants said he was studying to become a broker and the Defendants said that his partner was a real estate agent/broker and having read how stringent the real estate laws are in Texas, the Plaintiff felt comfortable with agreeing to do this.
Further, when Defendants sent the contract to the Plaintiff, she stated to the Defendants that she would have an attorney to review the contract. Interestingly, the Defendants said that that was not necessary because it was only a standard contract used in Texas. They said this to conceal the fact that there were defects in the property and any other issue that the attorney would have found out.
When Plaintiff relied on the Defendants’ misrepresentations and moved in the house, she noticed that there were things that hadn’t been fixed or were fixed improperly. The garage door openers didn’t work and the fan above the stove was dead bugs.
Negligence
The Defendant alleged that Plaintiff had failed to identify any duty owed between the parties. And that based on that reason, Plaintiff’s cause of action for negligence should be dismissed.
In order to establish a claim for negligence, a plaintiff must demonstrate “a duty, a breach of that duty, and damages proximately caused by the breach.” Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006); see also Morin v. Moore, 309 F.3d 316, 326 (5th Cir. 2002)
Plaintiff avers that Defendants had a duty of care towards Plaintiff and that they breached the said duty. The Defendant held out as an individual subject to the regulations and standards imposed by the Texas Real Estate Commission (TREC). Therefore, Defendant had a duty of care towards Plaintiff by ensuring that they adhered to the regulations of TREC. Defendant breached the said duty by failing to make material disclosures to Plaintiff as required by Texas Property Code Section § 5.008. Besides, they stated to Plaintiff that everything was fine in the property, which in real sense was not true.
Plaintiff alleges that there was a proximate causal connection between the negligent conduct and the injury of emotional, psychological, and financial damage inflicted upon the Plaintiff and her dogs.
Professional Negligence
The Defendant alleges that he was in no professional relationship with the Plaintiff and that for that reason; Plaintiff’s cause of action for professional negligence should be dismissed.
A negligence claim requires “(1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately resulting from the breach.” XXX. Further, “[i[f the gist of a client’s complaint is that the [professional] did not exercise that degree of care, skill, or diligence as [professionals] of ordinary skill and knowledge commonly possess, then that complaint should be pursued as a negligence claim, rather than some other claim.”XXX, no pet.). Whether a claim styled as breach of contract or fraud is actually a claim for professional malpractice is a question of law to be determined by the court. See ZZZ.
Plaintiff avers that the Defendants held out as real estate professionals. For instance, the Defendant informed Plaintiff that he was studying to become a Broker and hoped to get his license by next year. He said that his partner was a broker. Plaintiff was therefore led to believe that the sale of the house would be according to the high standards of the Texas Real Estate Commission (TREC). Besides, under the Texas Administrative Code Section 531.2, real estate brokers should practice integrity. Further, real estate agents are expected to walk through the home looking for visible and even latent defects, with the potential buyer.
However, the Defendant(s) failed to use such skill, prudence, and diligence as other members of their profession commonly possess and exercise, which failure amounted to a breach of the duty of care. Notably, Defendant refused to physically accompany Plaintiff in inspecting the home and just gave Plaintiff the lockbox number and assured Plaintiff that all was well. Plaintiff avers that this is sufficient proof of the Defendants’ neglect in their professional duties.
Gross Negligence
The Defendant alleges that that he had no knowledge of a gas leak. And that based on that reason, Plaintiff’s cause of action for gross negligence should be dismissed.
With regard to the subjective component of gross negligence, it is the defendant’s state of mind whether the defendant knew about a peril but nevertheless acted in a way that demonstrated that he did not care about the consequences that separates ordinary negligence from gross negligence.” Texas Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 232 (Tex. 2004). Plaintiff avers that the Defendants gross negligence is evidenced where the Defendants failed to make an early disclosure of the electrical fault in the property. Failure to make such disclosure predisposed Plaintiff to serious hazards such as electric fire that may be caused by an accidental gas leak. Accordingly, Plaintiff maintains that Defendants’ failure to disclose the electric fault amounts to gross negligence.
Negligent misrepresentation
The Defendant alleges that Plaintiff did not plead negligent misrepresentation and that contrary to Plaintiff’s assertions; he (Defendant) did not supply false information for the guidance of others. And that based on that reason, Defendant argues that Plaintiff’s cause of action for negligent misrepresentation should be dismissed.
“A claim for negligent misrepresentation under Texas law contemplates that the ‘false information’ provided by the defendant is a misstatement of existing fact.” XXX.
Plaintiff avers that the Defendants made several misrepresentations which the Defendants knew were wrong at the time they were making them. For instance, the Defendant informed Plaintiff that he was studying to become a Broker and hoped to get his license by next year. He (Defendant) said that his partner was a broker. Plaintiff was therefore led to believe that the sale of the house would be according to the high standards of the Texas Real Estate Commission (TREC).
Further, Defendants asked the Plaintiff if she would agree to put down the down payment on the house now rather than waiting. Plaintiff therefore believed in the Defendant because he (Defendant) said he was studying to become a broker and that his partner was a real estate agent/broker. Accordingly, having read how stringent the real estate laws are in Texas, the Plaintiff was led to believe in the Defendant’s representations.
Further, when Defendants sent the contract to the Plaintiff, she stated to the Defendants that she would have an attorney to review the contract. Interestingly, the Defendants said that that was not necessary because it was only a standard contract used in Texas. They said this to conceal the fact that there were defects in the property and any other issue that the attorney would have found out.
When Plaintiff relied on the Defendants’ misrepresentations and moved in the house, she noticed that there were things that hadn’t been fixed or were fixed improperly. The garage door openers didn’t work and the fan above the stove was dead bugs.
Breach of Fiduciary Duty
The Defendant alleges that he was not Plaintiff’s realtor and was therefore not bound as a fiduciary. And that based on that reason, Plaintiff’s cause of action for breach of fiduciary duty should be dismissed.
“The elements of a breach-of-fiduciary-duty claim [under Texas law] are: (1) a fiduciary relationship existed between the plaintiff and defendant; (2) the defendant breached its fiduciary duty to the plaintiff; and (3) the defendant’s breach resulted in injury to the plaintiff or benefit to the defendant.'” Neese v. Lyon, 479 S.W.3d 368, 386 (Tex. App. — Dallas 2015, no pet.).
Plaintiff avers that a fiduciary duty existed between Plaintiff and Defendants because Defendants had held out as real estate professionals. Indeed, according to TREC rules § 531.1, a real estate broker or salesperson, while acting as an agent for another, is a fiduciary. Plaintiff raises the issue that Defendant informed Plaintiff that he was studying to become a Broker and hoped to get his license by next year. He said that his partner was a broker. Plaintiff was therefore led to believe that the sale of the house would be according to the high standards of the Texas Real Estate Commission (TREC).
In light of the foregoing, the Defendants breached the aforesaid duties by misrepresentations and failure to adhere to the standards expected of them as fiduciaries. For instance, the Defendant(s) failed to use such skill, prudence, and diligence as other members of their profession commonly possess and exercise, which failure amounted to a breach of the duty of care. Notably, Defendant refused to physically accompany Plaintiff in inspecting the home and just gave Plaintiff the lockbox number and assured Plaintiff that all was well. Plaintiff avers that this is sufficient proof of the Defendants’ neglect in their professional duties.
Perpetuation of discrimination problems
The Defendant alleges that he was not Plaintiff’s employer. And that based on that reason, Plaintiff’s cause of action for perpetuating discrimination problems should be dismissed.
Plaintiff avers that Article 10 of the Fair Housing Act prohibits realtors from discriminating based on race, color, religion, sex, handicap, familial status. It is easier to prove that a party has standing to bring a Fair Housing Act claim than a constitutional claim because Fair Housing Act suits have more lenient standing requirements. The Supreme Court has explained that Congress intended standing under the Fair Housing Act to “extend to the full limits of Article III,”XXX, and that “[t]he normal prudential barriers to standing may not be set up as obstacles to the maintenance of actions under the Fair Housing Act.” XXX. See also XXX .Thus, “the sole requirement for standing to sue under [the FHA] is the Article III minima of injury in fact: that the plaintiff allege that as a result of the defendant’s actions he has suffered a `distinct and palpable injury.'” XXX.
Plaintiff maintains that the Defendants, who are white, discriminated upon her because she is a black elderly woman. Plaintiff avers that had Plaintiff been of white decent, she would have been subjected to different treatment.
Deceptive trade practices violation
The Defendant alleges that he did not intend to induce Plaintiff into the transaction. He also alleged that he did not lie to the Plaintiff and did not instruct Plaintiff to not hire an attorney. Based on the aforesaid reasons, Plaintiff’s cause of action for deceptive trade practices violation should be dismissed.
The Texas Deceptive Trade Practices Act requires a plaintiff to prove detrimental reliance on the alleged false or misleading statement. See , XXX (“[A] consumer may bring an action when he has relied to his detriment on a false or misleading representation.” (quotation omitted)); Daugherty v.XXXX no pet.) (“The plaintiff must . . . show he detrimentally relied on the deceptive act.”).
Plaintiff avers that the conduct of the Defendants amounted to deceptive trade practices. According to Texas Property Code Section § 5.008, the Defendants were supposed to disclose to the Plaintiff the true state of the property before entering the contract. However, the Defendants sent the disclosure a week after the parties had entered the contract. Besides, the Defendants had checked a box in the contract that identified that they had already sent the disclosure to the Plaintiff, which they had not done.
Further, the Defendants told the Plaintiff that he did not need a lawyer when entering the contract. In fact, the Defendants misadvised Plaintiff because they knew that they were hiding faults that would have prevented Plaintiff from entering the contract with them.
Reparations
The Defendant alleges that Texas does not recognize a claim for reparations and if anything, it would be a theory of recovery. Therefore, Defendant alleges that Plaintiff’s cause of action for reparations should be dismissed in that regard.
On the contrary, Plaintiff avers that she is entitled to reparation for the suffering and expense she underwent from the Defendants’ conducts against the Plaintiff.
- NO EVIDENCE SUMMARY JUDGMENT
Plaintiff’s Complaint contains all facts and proof to successfully plead all allegations
“In determining whether a respondent to a no-evidence motion for summary judgment has produced sufficient evidence to raise a genuine issue of material fact, courts are not required to search the record without guidance.” Aleman v. Ben E. Keith Co., 227 S.W.3d 304, 309 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (quoting TEX. R. CIV. P. 166a(i) cmt). Further, “`the respondent is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements.'” Id.
In the instant action, the Defendant alleges that Plaintiff has not presented any evidence to support the claims and/or allegations in the Complaint. On the contrary, Plaintiff alleges that there is sufficient facts and proof for every allegation in the Complaint. Therefore, Defendant’s allegation in the Motion for No Evidence Summary Judgment should be dismissed in that regard.
Breach of contract
The Defendant alleges that the Plaintiff has no evidence of and cannot prove the elements of her breach of contract claim. For that reason, Defendant argues that Plaintiff’s cause of action fails in that regard.
To prevail on a breach-of-contract claim, a plaintiff must prove (1) the existence of a valid contract; (2) the plaintiff’s performance or tender of performance; (3) the defendant’s breach; and (4) the plaintiff’s damages resulting from the breach XXX.
Plaintiff presents a copy of the Family Residential Contract, which outlined the relationship, duties and obligations of the parties under the contract. Further, Plaintiff can prove that she performed her obligation by starting to make payments to the Defendant. Plaintiff can also prove that she suffered damages as a result of the Plaintiff’s conduct.
Common law fraud
The Defendant alleges that the Plaintiff has no evidence of and cannot prove the elements of her common law fraud claim. For that reason, Defendant argues that Plaintiff’s cause of action fails in that regard.
A necessary element of a common law fraud claim under Texas law is actual reliance on the allegedly fraudulent and reckless statements. XXX. Texas fraud cases have applied the recklessness standard in accordance with the plain and ordinary meaning of that term: “characterized by creation of a substantial and unjustifiable risk of harm to others and by a conscious (and sometimes deliberate) disregard for or indifference to that risk; heedless; rash.” XXX.
In the instant action, Plaintiff avers that there is sufficient factual evidence to show that she relied on the statements and representations of the Defendants. Notably, Plaintiff moved in the house after Defendants informed her that all renovations were made.
Statutory fraud
The Defendant alleges that the Plaintiff has no evidence of and cannot prove the elements of her statutory fraud claim. For that reason, Defendant argues that Plaintiff’s cause of action fails in that regard.
In Texas, a claim for statutory fraud “does not require proof that the false representation was made knowingly or recklessly.” XXX.
Accordingly, it is enough for Plaintiff to point out that Defendants made false representations, which Plaintiff later found to be false. Accordingly, Plaintiff avers that she has sufficient proof that the Defendant made false statements, which Plaintiff relied on, to her detriment.
Fraud by non-disclosure
The Defendant alleges that the Plaintiff has no evidence of and cannot prove that Defendant owed a duty to disclose. Defendant further alleges that Plaintiff has no evidence of and cannot prove the elements of her fraud by non-disclosure claim. For that reason, Defendant argues that Plaintiff’s cause of action fails in that regard.
Under Texas law, to succeed on a claim for common-law fraud based on nondisclosure there must be a duty to disclose and proof that the defendant concealed or failed to disclose a material fact that he knew the plaintiff was ignorant of or did not have the opportunity to discover, that he intended to induce him to take some action by concealing or failing to disclose the material fact, and that the plaintiff suffered as a result of acting on the defendant’s nondisclosure. XXX.
In the instant action, Plaintiff alleges that there is sufficient proof to show that the Defendant failed to disclose to the Plaintiff material fact pertaining to the house. Notably, the Defendant had a duty to disclose any fault with the house. Further, they checked the box in the contract, which indicated that they had made all disclosures. Plaintiff therefore entered the contract knowing that there was not fault with the property. However, one week later, Defendant sent Plaintiff information that there was an electrical fault in the house. This amounts to sufficient proof of fraud by non-disclosure.
Fraudulent inducement
The Defendant alleges that the Plaintiff has no evidence of and cannot prove the elements of her fraudulent inducement claim. For that reason, Defendant argues that Plaintiff’s cause of action fails in that regard.
Fraudulent inducement “is a particular species of fraud that arises only in the context of a contract and requires the existence of a contract as a part of its proof.” XXX.
Plaintiff has provided proof of the contract that she entered with the Defendants. This, and other factual allegations made by Plaintiff, is sufficient proof for the claim of fraudulent inducements.
Misrepresentation
The Defendant alleges that the Plaintiff has no evidence of and cannot prove the elements of her misrepresentation claim. For that reason, Defendant argues that Plaintiff’s cause of action fails in that regard.
Texas imposes civil liability for false representations of material facts or material promises that are “relied on by [a plaintiff] in entering into [a real estate] contract.” XXX. Because the statute is derived from Texas common law fraud, the reliance and materiality elements of section 27.01 do not differ from those of Texas common law fraud. XXX sets out the elements of common law fraud); XXX (applying same materiality standard to common law and section 27.01 claims).
There is sufficient evidence to show that Defendant made representations of fact as to the state of the house. Plaintiff relied on the said representations, to her detriment.
Negligence
The Defendant alleges that the Plaintiff has no evidence of and cannot prove the elements of her negligence claim. For that reason, Defendant argues that Plaintiff’s cause of action fails in that regard.
Circumstantial evidence is sufficient to prove either extreme degree of risk or the actor’s actual awareness of the risk. XXX.
In the instant action, Plaintiff has provided enough circumstantial evidence to show how the Defendants breached their duty, which led to Plaintiff’s harm.
Professional negligence
The Defendant alleges that the Plaintiff has no evidence of and cannot prove the elements of her professional negligence claim. For that reason, Defendant argues that Plaintiff’s cause of action fails in that regard.
“To establish liability for professional negligence, the plaintiff must show the existence of a duty, a breach of that duty, and damages arising from the breach, as well as privity of contract.” XXXX “Proximate cause includes two essential elements: (1) foreseeability, and (2) cause in fact . . . . Cause in fact means that the act or omission was a substantial factor in bringing about the injury and without which no harm would have occurred.” Id.
In the instant action, the Plaintiff has provided sufficient proof that the Defendants owed a duty of care to Plaintiff because they held out as realtors and/or real estate professionals. Further, Plaintiff has provided evidence of her harm and/or loss consequential and incidental to the conduct of the Defendants.
Gross negligence
The Defendant alleges that the Plaintiff has no evidence of and cannot prove the elements of her gross negligence claim. For that reason, Defendant argues that Plaintiff’s cause of action fails in that regard.
Texas courts consider gross negligence as an extreme species of negligence. See, e.g., TXXX (“Gross negligence implies nothing more than some degree of negligence.”).
In the instant action, Plaintiff has provided sufficient factual evidence to prove that Defendants grossly breached their duties by intentionally and recklessly concealing pertinent facts about the house from Plaintiff. For instance, the Defendants avoided conducting a physical search with the Plaintiff, but only provided a lockbox number. Plaintiff avers that this is sufficient proof that the Defendants are liable for gross negligence.
Negligent misrepresentation
The Defendant alleges that the Plaintiff has no evidence of and cannot prove the elements of her negligent misrepresentation claim. For that reason, Defendant argues that Plaintiff’s cause of action fails in that regard.
Negligent misrepresentation requires proof of an injury independent of the contract .XXX. In D.S.A., the Texas Supreme Court explained that Texas has adopted the independent injury requirement of section 552B of the Restatement (Second) of Torts for claims of negligent misrepresentation. Id. at XXX.
The Defendant failed to disclose material facts about the state of the house, including the electrical fault at the time the Plaintiff entered the contract. Therefore, Plaintiff ended up moving in the house and later found she needed $30,000 worth of renovation. This, Plaintiff avers, is sufficient proof of negligent misrepresentation.
Breach of fiduciary duty
The Defendant alleges that the Plaintiff has no evidence of and cannot prove the elements of her breach of fiduciary duty claim. For that reason, Defendant argues that Plaintiff’s cause of action fails in that regard.
Under Texas fiduciary law, a plaintiff need not prove causation and actual damages when seeking equitable relief for breach of fiduciary duty. Kinzbach Tool Co. v. Corbett-Wallace Corp. 138 Tex. 565, 160 S.W.2d 509, 514 (1942).
In the instant action, Plaintiff does not need to prove causation and/or actual damages in her breach of fiduciary duty claim. Accordingly, Plaintiff avers that she has met her burden of proof thereby.
Perpetration of discrimination problems
The Defendant alleges that the 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. For that reason, Defendant argues that Plaintiff’s cause of action fails in that regard.
The burden was on the defendant to prove a purposeful and intentional discrimination. Cassell v. XXX
Plaintiff avers that the burden is on the Defendant to prove the reason behind their conduct.
Deceptive trade practices
The Defendant alleges that the Plaintiff has no evidence of and cannot prove the allegations in her deceptive trade practices claim. For that reason, Defendant argues that Plaintiff’s cause of action fails in that regard.
To prove a claim under the TDTPA, a plaintiff must establish that defendant violated the specific prohibitions of Texas Business and Commercial Code Annotated §§ 17.46 and 17.50; one of these is using deceptive representations in connection with goods or services. The Texas Supreme Court has held that a plaintiff can prove a “false, misleading, or deceptive act” as defined in the TDTPA by demonstrating “an act or series of acts which has the capacity or tendency to deceive an average or ordinary person, even though that person may have been ignorant, unthinking, or credulous.” XXX.
In the instant action, the Plaintiff pointed out specific provisions of the law that the Defendants violates. This is sufficient evidence to prove the Defendants’ liability for deceptive trade practices.
Reparations
The Defendant alleges that the Plaintiff has no evidence of and cannot prove any cause of action wherein reparations is a recognized avenue of recovery. For that reason, Defendant argues that Plaintiff’s cause of action fails in that regard.
Under Texas law, when a valid, express contract covers the subject matter of the parties’ dispute, there can be no recovery under equitable theory of recovery. Fortune Prod. Co. v. Conoco, Inc., XXX.
Plaintiff avers that she entered the contract on the belief that the Defendants had good faith. Accordingly, the Plaintiff did not foresee any instance that the Defendant would be making false representations and concealing material facts from Plaintiff. Therefore, the contract did not cover any dispute in the instant case. Accordingly, Plaintiff avers that there is sufficient evidence to allege the equitable claim of reparations.
- THE DEFENDANT IS NOT AUTOMATICALLY ENTITLED TO ATTTORNEY’S FEES
The Texas Supreme Court has consistently held that a prevailing party cannot recover attorney’s fees from an opposing party unless permitted by statute or by contract between the parties. Holland v. Wal-Mart Stores, Inc., XXX.
In the instant action, the Defendant already assumes that this Honorable Court will automatically grant its Motion(s) for Summary Judgment. However, Plaintiff avers that the Defendant claim for Attorney’s fees is merely ambitious and untimely. The award of Attorney’s fees is subject to the outcome of the case. Therefore, Plaintiff avers that Defendant’s claim for attorney’s fees be dismissed in that regard.
WHEREFORE, the foregoing considered, Defendant respectfully request that this Honorable Court:
- Enter an order denying Defendant’s Motion for Traditional Summary Judgment in its entirety;
- Enter an order denying Defendant’s Motion for No Evidence Summary Judgment in its entirety;
- For such other and further relief this Honorable Court deems just.
DATED: ______
CERTIFICATE OF MAILING
I, [ENTER NAME], certified on this day of .2021, I deposited a true copy of the above to the Defendant by placing the documents with prepaid postage in the United States mailbox address to the Defendant.
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