Richard Glassman and Lucy Glassman v. Sylvia Pena, DeWetter Hovious, Inc., Charles DeWetter, Individually and as a Licensed Real Estate Broker and Sponsor of Sylvia Pena--Appeal from County Court at Law No 7 of El Paso County

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RICHARD GLASSMAN AND LUCY GLASSMAN,

Appellants,

v.

SYLVIA PENA, DEWETTER HOVIOUS, INC., AND CHARLES DEWETTER, INDIVIDUALLY AND AS A LICENSED REAL ESTATE BROKER AND SPONSOR OF SYLVIA PENA,

Appellees.

'

'

'

'

'

No. 08-02-00541-CV

Appeal from the

County Court at Law No. 7

of El Paso County, Texas

(TC#2001-3260)

MEMORANDUM OPINION

Richard and Lucy Glassman sued Sylvia Pena, DeWetter Hovious, Inc., and Charles DeWetter (the appellees) for damages arising from the purchase of a home. The Glassmans purchased the home from Cendant Mobility Financial Corporation. Pena, a realtor with DeWetter Hovious, listed the home for sale. Charles DeWetter is a broker with DeWetter Hovious and Pena=s supervisor. The trial court granted the appellees= motion for summary judgment, and the Glassmans appeal. We affirm.

 

 The Glassmans= Petition

The Glassmans alleged that the appellees misrepresented the size of the home. They asserted claims for violation of the Deceptive Trade Practices Act (DTPA); common-law fraud; statutory real estate fraud; negligent misrepresentation; negligent hiring, supervision, and/or management; and breach of contract.

The Summary Judgment Evidence

According to an affidavit by Richard Glassman, Pena told him and his wife that the home was Aabout 5,500 square feet and that it was over 5,000 square feet on a number of occasions.@ Glassman also averred, AWe would not have negotiated or purchased the house if we thought it was less than 5,000 square feet and we believed that it was over 5,500 square feet because Sylvia Pena told us that it was.@

In her deposition, Pena admitted that she told Richard Glassman that the home was over 5,000 square feet A[m]aybe a couple of times.@ Pena also stated that she knew that the size of the home was very important to Richard Glassman. According to Pena, Ahe was always saying that@ the size of the home mattered to him.

 

In 1995, when the home was being built, Pena listed it for sale in the Multiple Listing Service (MLS) as having 3,950 square feet. She testified that the builder probably anticipated that the home would be that size, and she probably got the square footage information from him. Pena listed the home for sale again in 1997. At that time, she listed the home as having zero square feet in the MLS. She explained that the owners had made changes to the home as it was being built, and they were unsure what the true square footage was. The home did not sell in 1997, so the owners attempted to rent it out later that year. When Pena listed the home for rent in the MLS, she listed it as having 5,000 square feet, based on what the owners told her. In 2000, when Pena listed the home for sale for the last time, she listed it as having 5,767 square feet. She obtained this figure from the tax assessor=s office.

Pena testified that she was not under the impression that the house=s size had changed since it was built. But she also testified that when she placed the final listing, she believed the home was 5,767 square feet. Pena never reviewed the square footage information in her prior listings, although the listings were still available on the Internet and in the DeWetter Hovious office files. At one point, Pena testified that when she listed the house for rent at 5,000 square feet it occurred to her that this square footage was different from what she had previously listed it as. But she later testified that she did not remember that the square footage was less in the prior listings.

On March 11, 2001, the Glassmans signed three documents related to the home purchase--a ANotice to Purchaser,@ a AStandard Addendum,@ and a ASeller=s Real Estate Disclosure.@ The Notice to Purchaser is a two-page document that contains the following provisions relative to this dispute:

 

Buyers expressly acknowledge . . . that they are purchasing the property . . . upon their own examination and judgement and that BROKERS AND AGENTS INVOLVED HAVE MADE NO REPRESENTATIONS, STATEMENTS, OR CLAIMS TO THE PROPERTY CONDITIONS OR BOUNDARY LINES UPON WHICH BUYERS ARE RELYING. Buyers acknowledge that the real estate brokers and agents involved in this sale are acting only as CONDUITS OF INFORMATION PROVIDED TO THEM BY OTHERS and are not responsible for the validity or verification of such information to include that which is provided by the seller, or for the actions or failure to act of any other persons involved in this transaction.

. . .

SIZE OF THE PROPERTY If square footage of the property is of importance, buyers have the right to request an opportunity to determine the size of the property prior to submitting a written offer, or to insert language in the proposed earnest money contract making the purchase subject to proof that the property contains square footage acceptable to them. If buyers do not do so, they acknowledge the square footage is not a significant factor in their decision to buy the property. Buyers understand it is their sole responsibility to make their own determination of the number of square feet in the property, or employ any qualified person of their choosing to do so, and this responsibility is not affected by any statement regarding square footage they may have seen or heard from any source.

. . .

Buyers acknowledge that neither the seller, nor brokers or agents involved in this transaction have made any oral agreement, representation, promise or warranty concerning the property which adds to, alters, or is in conflict with the written terms of the Earnest Money Contract and any Addenda, this Notice and any other written notices provided to the Buyers.

The Standard Addendum is a two-page document that contains the following provision:

Condition:

 

Buyer(s) acknowledge that Seller has acquired the property in a relocation transaction, and that Seller is acting in the capacity of a non-occupant contractual owner or representative of the owner and has limited first-hand knowledge of the property. . . . . Neither Seller nor Seller=s agent has made any warranties or representations, either expressed [or] implied (except as may have been given to the Buyer(s) in writing), as to the condition of the premises. No representations [or] warranties made by seller shall survive the closing. Buyer(s) acknowledge that they have the opportunity to inspect [the] property or have the same inspected by others on their behalf. Except for any repairs specifically required to be made [by] Seller in accordance with the terms of this Agreement, or attached hereto, Buyer(s) understand that they are purchasing [the] property in AAs-Is@ condition, subject only to any specific items set forth in this Agreement.

The Seller=s Real Estate Disclosure is a one-page document that lists the various disclosure documents that Cendant had provided the Glassmans. This document also contains the following language:

Buyer(s) acknowledge and agree that the purchase price of the property and other terms and conditions of this purchase agreement were negotiated with full knowledge and disclosure of the contents of the aforementioned disclosures; that said purchase price reflects the agreed-upon value of the property AS IS; including the aforementioned disclosures; to take the property subject to the disclosures; and that Cendant Mobility shall have no responsibility or liability therefor.

On March 21, 2001, the Glassmans signed a nine-page earnest money contract. Under the heading APROPERTY CONDITION,@ the contract restates the information in the Standard Addendum regarding Cendant=s acquisition of the property in a relocation transaction and states that the buyers have received copies of the disclosure documents. The contract then provides:

 

Buyer acknowledges that Buyer has had, or will have had, prior to closing, the opportunity to investigate the subject matter of the aforementioned disclosures on their own and have, or will have, investigated such to their satisfaction, or waived such investigation. Buyer will at closing execute a Disclosure Acknowledgment to confirm that Buyer has had the opportunity to review and investigate the contents of the disclosure. Buyer acknowledges and agrees that the Sales Price of the Property and other terms and conditions of this contract were negotiated by Buyer and Seller with full knowledge and disclosure of the contents of the disclosures; that the Sales Price reflects the agreed-upon value of the Property AS IS; including the disclosures; to take the Property subject to the disclosures; and that Seller will have no responsibility or liability therefor. Buyer acknowledges, that neither Seller nor Seller=s agent has made any warranties or representations, either expressed or implied (except as may have been given to the Buyer in writing), as to the condition of the premises.

The Glassmans deposited $20,000 as earnest money.

According to Richard Glassman=s affidavit, he and his wife have never held real estate licenses, nor do they have any education in buying and selling real estate. Lucy Glassman is a homemaker and Richard Glassman runs a small grocery store. The affidavit states that neither of the Glassmans read the paperwork related to the home purchase. The affidavit further states, AI doubt I would have been able to understand it if I had tried to read it and, certainly there wasn=t enough time to read it in just one day . . . .@ Richard Glassman believes they signed or initialed at least thirty pages. The pages had small print, and he did not notice Aany particularly large print or writing that caught [his] attention.@

After they signed the earnest money contract, but before closing, the Glassmans had the home appraised. Richard Glassman testified that the appraiser determined that the home is about 4,500 square feet or something in the A[l]ow fours.@ After they received the appraisal, the Glassmans no longer wanted to purchase the home. According to Richard Glassman, their realtor contacted DeWetter Hovious and was told that Awe could not get out on that basis, there=s no way, no how.@

 

The summary judgment evidence also included an MLS listing input form, signed by Pena and the owner, which states that the home is 5,767square feet, and a printout of the MLS listing, which contains the following entries: ASqFt: 5,767@ and ASource Sq Ft: ASSR TAX ROLL.@

The Summary Judgment Motion

The appellees filed a no-evidence summary judgment motion. Regarding the breach of contract claim, they argued that there was no evidence of a contractual relationship between the Glassmans and the appellees.

 

Regarding the remaining claims, the appellees argued that the Glassmans cannot establish that they relied on any misrepresentation or that any misrepresentation caused their damages, because they signed the Notice to Purchaser containing the ASize of the Property@ disclaimer and the three other documents containing Aas is@ clauses. The appellees also argued that they were not liable for any misrepresentation because the prior owner signed the MLS input form that contained the erroneous square footage figure. They based this second argument on section 15F of the Texas Real Estate License Act (TRELA), which according to the appellees, provides that a realtor who relies on a misrepresentation made by a seller, without knowledge of the inaccuracy of the representation, is shielded from liability in connection with the misrepresentation.[1] Regarding the DTPA claim, the appellees also argued that the Glassmans could not establish that they relied on any misrepresentation regarding the square footage because, by virtue of the appraisal, they actually knew the correct square footage before they closed on the home. Additionally, the appellees argued that they were not liable for any misrepresentation of the home=s square footage because they relied on official government records for the erroneous square footage figure. For this argument, they cited section 17.506(a)(1) of the DTPA.[2]

The trial court=s order granting summary judgment does not specify the grounds upon which the judgment is based.

Discussion

 

In the Table of Contents and Issues Presented sections of their appellate brief, the Glassmans assert, AThe Trial Court Erred in granting the motion for summary judgment on plaintiff=s cause of action under the Texas Deceptive Trade Practices Act because Plaintiff provided summary judgment evidence on each and every element of cause of action and defense identified by defendant in its motion [sic].@ In the Arguments and Authorities section of the brief, the Glassmans restate their complaint as follows: AThe Trial Court Erred in Granting Motion for Summary Judgment under Texas Rule of Civil Procedure 166a(i) >no evidence motion= because appellant proved every element required of its causes of action and every defense raised by appellee [sic].@

The issue on appeal as stated in the Arguments and Authorities section is broad enough to allow argument on every ground upon which the summary judgment could have been based. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970); Taub v. Houston Pipeline Co., 75 S.W.3d 606, 615 (Tex. App.--Texarkana 2002, pet. denied). In the body of the brief, however, the Glassmans only argue that the trial court erred in granting summary judgment based on the Aas is@ provisions.

The appellees= summary judgment motion cites section 15F of the TRELA as an independent basis for summary judgment on all of the Glassmans= claims except breach of contract.[3] Yet the Glassmans= appellate brief does not address section 15F of the TRELA.

 

To obtain a reversal, an appellant must specifically attack each basis for summary judgment. Bailey v. Gulf States Utils. Co., 27 S.W.3d 713, 716-17 (Tex. App.--Beaumont 2000, pet. denied); Timothy Patton, Summary Judgments in Texas, Practice, Procedure and Review ' 8.03[1] (2003). Because the Glassmans have not attacked every basis upon which the summary judgment could have been granted, we will affirm the summary judgment. See Janis v. Melvin Simon Assocs., Inc., 2 S.W.3d 647, 649-50 (Tex. App.--Corpus Christi 1999, pet. denied); Bailey, 27 S.W.3d at 716-17; Maranatha Temple Inc. v. Enterprise Prods. Co., 893 S.W.2d 92, 105-06 (Tex. App.--Houston [1st Dist.] 1994, writ denied); Martin v. Cohen, 804 S.W.2d 201, 202 (Tex. App.--Houston [14th Dist.] 1991, no writ); A.C. Collins Ford, Inc. v. Ford Motor Co., 807 S.W.2d 755, 760 (Tex. App.--El Paso 1990, writ denied); see also Patillo v. Tarin, No. 08-01-00091-CV, 2002 WL 1988172, at *3 (Tex. App.--El Paso Aug. 29, 2002, pet. denied) (not designated for publication).

Conclusion

Accordingly, the Glassmans= issue on appeal is overruled, and the summary judgment is affirmed.

SUSAN LARSEN, Justice

December 18, 2003

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

 

[1]This statute was replaced by section 1101.805 of the Texas Occupations Code, effective June 1, 2003. The language of the statute is: AA license holder is not liable for a misrepresentation or a concealment of a material fact made by a party to a real estate transaction unless the license holder . . . knew of the falsity of the misrepresentation or concealment []and failed to disclose the license holder=s knowledge of the falsity of the misrepresentation or concealment.@ Tex. Occ. Code Ann. ' 1101.805(e) (Vernon Supp. 2004). This provision prevails over common law and any other law. Id. ' 1101.805(b).

[2]The language of this statute is:

[I]t is a defense to the award of any damages or attorneys= fees if the defendant proves that before consummation of the transaction he gave reasonable and timely written notice to the plaintiff of the defendant=s reliance on:

(1) written information relating to the particular goods or service in question obtained from official government records if the written information was false or inaccurate and the defendant did not know and could not reasonably have known of the falsity or inaccuracy of the information . . . .

Tex. Bus. & Com. Code Ann. ' 17.506(a)(1) (Vernon 2002).

[3]In oral argument, the Glassmans acknowledge they have abandoned their breach of contract claim. The Glassmans= appellate brief does not even mention breach of contract.