Dionicia Mireles v. Tejas Appraisal and Inspection Co. and Charles David Drapela--Appeal from 198th Judicial District Court of Kerr County

Annotate this Case
MEMORANDUM OPINION

No. 04-06-00582-CV

 

Dionicia MIRELES,

Appellant

 

v.

 

TEJAS APPRAISAL AND INSPECTION CO.

and Charles David Drapela,

Appellees

 

From the 198th Judicial District Court, Kerr County, Texas

Trial Court Nos. 05-437-B

Honorable Emil Karl Prohl, Judge Presiding

 

Opinion by: Sandee Bryan Marion, Justice

 

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: June 27, 2007

 

AFFIRMED

 

In the underlying litigation, Dionicia Mireles sued Tejas Appraisal and Inspection Co. and Charles David Drapela (collectively, "Drapela") for alleged misrepresentations made by Drapela in an inspection report prepared after Drapela inspected Mireles's home. Mireles alleged causes of action for negligent misrepresentation, breach of fiduciary duty, common law and statutory fraud, negligent infliction of emotional distress, and fraudulent concealment. Drapela moved for a traditional summary judgment on the grounds that its liability was limited to $250 pursuant to the terms of the Inspection Agreement entered into by the parties, and neither negligent infliction of emotional distress nor fraudulent concealment are recognized as valid causes of action. Drapela also moved for a no-evidence summary judgment on Mireles's breach of fiduciary duty and common law and statutory fraud claims. The trial court rendered summary judgment in favor of Drapela on all grounds. Drapela did not move for summary judgment on Mireles's negligent misrepresentation claim; instead, Drapela tendered $250 to Mireles in satisfaction of that claim. After rendering summary judgment, the trial court signed a final judgment in which it found that Drapela had tendered $250 to Mireles in satisfaction of all recoverable damages under her negligent misrepresentation claim.

SUMMARY JUDGMENT ON

LIMITATION OF LIABILITY

 

In her first issue, Mireles asserts the trial court erred in concluding her damages were limited to $250 because the limitation of liability clause contained in the Inspection Agreement is unconscionable and, therefore, unenforceable. According to Mireles, she had no bargaining power because the clause "was boilerplate and preprepared." Mireles also argues the clause is against public policy because such a clause "set[s] the public up for purchasing homes with many problems." Finally, she contends the clause is hidden in the agreement, with no distinct feature or eye-catching font, and, at most, limited only unforeseeable damages.

The Fort Worth Court of Appeals has recently addressed whether a limitation of liability clause contained in a home inspection contract was unconscionable. See Head v. U.S. Inspect DFW,Inc., 159 S.W.3d 731 (Tex. App.--Fort Worth 2005, no pet.). The Head court held that contracting parties may limit their liability in damages to a specified amount, absent a contrary public policy. Id. at 748. In determining whether a limitation of liability clause is unconscionable or against public policy, courts generally consider the entire atmosphere in which the agreement was made, the bargaining process the parties went through, and whether there is such a disparity in bargaining power between the parties that one party is forced to agree to the exculpatory provision. See id. at 748; Pony Express Courier Corp. v. Morris, 921 S.W.2d 817, 821 (Tex. App.--San Antonio 1996, no writ). Mireles does not contend Drapela is the only home inspection company in the Hill County area, or that she was not free to select another company if she was dissatisfied with one or more of the terms of the Inspection Agreement. Thus, there was no disparity in bargaining power. See Head, 159 S.W.3d at 748 (finding no disparity of bargaining power when plaintiff was free to select another home inspection service).

Courts also evaluate the fairness of the contractual provision by determining whether there are legitimate commercial reasons that justify its inclusion in the agreement. Head, 159 S.W.3d at 748. The Head court held there are legitimate commercial reasons for allowing home inspection companies to limit their liability. See id. We agree. "[W]ithout the ability to limit liability, the costs of home inspection services would likely increase, which might make this service unaffordable for some." Id. Here, Mireles paid a small fee for a "limited visual examination of certain readily accessible systems and components."

Another factor considered by courts in determining whether a limitation of liability clause is unconscionable is whether the clause is conspicuous. To be conspicuous, "something must appear on the face of the [contract] to attract the attention of a reasonable person when he looks at it." Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 509 (Tex. 1993). The Dresser Court adopted the standard for conspicuousness found in the Uniform Commercial Code:

A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: NON-NEGOTIABLE BILL OF LADING) is conspicuous. Language in the body of a form is "conspicuous" if it is in larger or other contrasting type or color.

Id. at 511 (citations omitted).

Here, the contract contains the title, INSPECTION AGREEMENT, at the top center of the first page, in bold, capital letters. Immediately under the title, also centered on the page, in bold, capital letters, is the following language: THIS AGREEMENT LIMITS OUR LIABILITY - PLEASE READ IT CAREFULLY. The contract contains a variety of clauses, the title of all in bold typeface and underlined, with some also in capital letters. One of these clauses is entitled: Limit of Liability. This clause is a sub-part of a more general section, entitled, in bold, capital letters: DISPUTE RESOLUTION AND REMEDY LIMITATION. The Limit of Liability clause contains the following sentence, which is in bold letters: ""[I]f we fail to perform the Services as provided herein or are careless or negligent in the performance of the Services and/or preparing the Report, our liability for any and all claims related hereto is limited to the fee paid for the Services . . . ." (Underline in original). Immediately above the signature lines, in bold letters, is the following language: "By signing below you acknowledge that you have read, understand and agree to the terms and conditions of this agreement, including (but not limited to) the limitation of liability, arbitration clause and limitations period, and agree to pay the fee listed above in the shaded box." The fee for services in the "shaded box" is $250.

The Limit of Liability clause is not hidden amongst unrelated clauses. The general heading, DISPUTE RESOLUTION AND REMEDY LIMITATION, under which the clause is located draws attention to the Limit of Liability clause. The language at the top center of the first page and the language above the signature lines also draw attention to the Limit of Liability clause. Therefore, we hold the Limit of Liability clause here was conspicuous.

Finally, Mireles contends the limitation language limits damages to only unforeseen damages. The clause states as follows: "Due to the nature of the services we are providing, it is difficult to foresee or determine (at the time of the agreement) potential damages in the event of negligence or breach of this agreement by us." We disagree with Mireles's argument. This language does nothing more than state the obvious, that damages arising from negligence or breach cannot be predicted. Also, to the extent, as Mireles asserts, damages to a home "are very foreseeable considering the nature of the plumbing system . . . [and] the inevitable failure of the poly butylene piping contained in the house is well known within the industry," Mireles provided no summary judgment evidence to support this contention.

For these reasons, we hold the trial court did not err in rendering summary judgment that Drapela's liability was limited to $250.

NO-EVIDENCE SUMMARY JUDGMENT

Drapela moved for, and was granted, a no-evidence summary judgment on Mireles's breach of fiduciary duty and common law and statutory fraud claims. We review a no-evidence summary judgment de novo by construing the record in the light most favorable to the non-movant and disregarding all contrary evidence and inferences. Reynosa v. Huff, 21 S.W.3d 510, 512 (Tex. App.--San Antonio 2000, no pet.). A party may move for a no-evidence 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. Tex. R. Civ. P. 166a(i). A no-evidence summary judgment motion is improperly granted when the non-movant brings forth more than a scintilla of probative evidence that raises a genuine issue of material fact. Id.; Gomez v. Tri City Cmty. Hosp., Ltd., 4 S.W.3d 281, 283 (Tex. App.--San Antonio 1999, no pet.). More than a scintilla of evidence exists if the evidence would allow reasonable and fair-minded people to differ in their conclusions. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). Less than a scintilla of evidence exists if the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Id.

1. Breach of Fiduciary Duty

A fiduciary relationship exists when the parties are under a duty to act for or give advice for the benefit of another upon matters within the scope of the relation. Fisher v. Roper, 727 S.W.2d 78, 81 (Tex. App.--San Antonio 1987, writ ref'd n.r.e.). A contractual relationship may not be transformed into a fiduciary relationship unless the evidence shows the relationship existed prior to, and apart from, the agreement made the basis of the suit. Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 177 (Tex. 1997).

Drapela asserted there was no evidence that a fiduciary relationship existed between it and Mireles. Mireles responded that a fiduciary relationship existed by virtue of the agreement for services to be rendered by Drapela. According to Mireles, an agreement to inspect a possible future home, "the largest purchase of one's life," requires good faith, trust, confidence and candor; and thus, establishes a fiduciary relationship. However, there is no evidence of any prior fiduciary relationship between the parties. The only evidence presented on the existence of a fiduciary relationship is Mireles's statement in her affidavit that she "believe[d] Mr. Drapela had a fiduciary duty to [her]." This statement, standing alone, does not suffice to raise a fact issue. Mere subjective trust does not, as a matter of law, transform an arms-length dealing into a fiduciary relationship. Id. Accordingly, the trial court did not err in rendering summary judgment in favor of Drapela on Mireles's breach of fiduciary duty claim.

2. Common Law Fraud

Drapela asserted there was no evidence that, when the alleged misrepresentations were made to Mireles, Drapela knew the representation was false or made the representation recklessly, as a positive assertion, and without knowledge of its truth. Mireles responded that Drapela voluntarily disclosed information about the house; therefore, he had a duty to disclose new information when that new information made the earlier representation misleading or untrue. She also alleged Drapela made a partial disclosure and conveyed a false impression. None of Mireles's summary judgment evidence supports her contentions. Mireles did not provide evidence of what Drapela disclosed about the house, nor did she provide a copy of any report provided by Drapela following his inspection of the house. Accordingly, the trial court did not err in rendering summary judgment in favor of Drapela on Mireles's common law fraud claim.

3. Statutory Fraud

Mireles alleged fraud in a real estate transaction under Texas Business and Commerce Code section 27.01. Drapela challenged a single element of this cause of action: that there was no evidence the alleged misrepresentation was made for the purpose of inducing Mireles to enter into a contract. See Tex. Bus. & Com. Code Ann. 27.01(a)(1)(A) (Vernon 2002). In her affidavit, Mireles stated Drapela "made a misrepresentation for the purpose of inducing [her] entering [sic] into his inspection contract." Mireles did not identify the alleged misrepresentation. Mireles also stated the contract itself was a misrepresentation; however, she did not identify the specific provision of the contract that allegedly improperly induced her to sign the contract. Accordingly, the trial court did not err in rendering summary judgment in favor of Drapela on Mireles's statutory fraud claim.

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Finally, Drapela moved for, and was granted, a traditional summary judgment on Mireles's negligent infliction of emotional distress claim. (1) The sole basis for summary judgment on this claim was Drapela's contention that "Texas does not recognize a cause of action for negligent infliction of emotional distress." Under traditional summary judgment standards, a party moving for summary judgment has the burden of establishing as a matter of law that no genuine issue of material fact exists as to one or more essential elements of the plaintiff's cause of action. Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). If the defendant meets this burden, the plaintiff must then raise a genuine issue of material fact on that element. Gonzalez v. City of Harlingen, 814 S.W.2d 109, 112 (Tex. App.--Corpus Christi 1991, writ denied).

In Texas, there is no general legal duty to avoid negligently inflicting mental anguish. Boyles v. Kerr, 855 S.W.2d 593, 594 (Tex. 1993). While negligently inflicted mental anguish may be an element of recoverable damages when the defendant breaches some other duty, "[f]or many breaches of legal duties, even tortious ones, the law affords no right to recover for resulting mental anguish." City of Tyler v. Likes, 962 S.W.2d 489, 494 (Tex. 1997). A plaintiff may recover for mental anguish where her damages are caused by the defendant's breach of some other legal duty. Boyles, 855 S.W.2d at 594. Therefore, mental anguish damages are recoverable in a limited set of circumstances: (1) the foreseeable result of a breach of duty arising out of certain special relationships; (2) common law torts involving intentional or malicious conduct; and (3) personal injury cases where the defendant's conduct causes serious bodily injury.

In her response to Drapela's motion for summary judgment, Mireles cited to the Boyles opinion, but she did not elaborate further. Mireles did not point to the specific legal duty allegedly breached by Drapela or specify the nature of the alleged breach of that duty. Therefore, Mireles did not bear her burden of raising a genuine issue of material fact sufficient to defeat Drapela's entitlement to summary judgment as a matter of law. Accordingly, the trial court did not err in rendering summary judgment in Drapela's favor on Mireles's negligent infliction of emotional distress claim.

CONCLUSION

We overrule Mireles's issues on appeal and affirm the trial court's judgment.

 

Sandee Bryan Marion, Justice

1. Drapela also was granted summary judgment on Mireles's fraudulent concealment claim. On appeal, Mireles does not challenge the judgment on this claim; therefore, we affirm the judgment as to that claim.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.