Adesina, Vanesta Y., Et Al v. Millennium Title of Houston, L.C. f/k/a MHI Title Company of Houston, L.L.C.--Appeal from 268th District Court of Fort Bend County

Affirmed and Memorandum Opinion filed August 12, 2003.

In The

Fourteenth Court of Appeals

_______________

NO. 14-02-00802-CV

_______________

VANESTA Y. ADESINA, MICHAEL ANDERSON, EARVIN & ANDREA BAKER, DENNIS BATISTE, ANNIE CLARK, EARNESTINE CLAYBOURNE, DAVID & YVONNE JONES, BRENDA MOORE, LISA MOORE, PAUL & MAXINE NORRIS, GLORIA TAYLOR, YOLANDA BABINEAUX, EUGENE BARNES, JR., KAREN BARNES, DEBRA L. BRADLEY, DONYELL ELKINS, MELANEE GOODEN, ANTHONY & AMANDA HALL, BRENDA I. HODGE, ANTHONY MONROE, TONI PALMER, KELVIN RAYME, WILMA WILLIAMS, EDMUND GAINES, CHERYL Y. GAYDEN, DONNA MARTIN, FREDDIE L. TOLBERT, JR., DAVID & SHARON WARREN, URSULA BOSTIC, VELMA MARIE DAUGHTRY, ANNE DUFFIELD, QUINCY D. & MARY E. ROBINSON, DONNA HARRINGTON, DIAMOND JOHNSON, CASSANDRA SHAW, KEITH & SHIRLEY NICHOLS, ANNETTE ANDREWS, WILFORD B. BROUSSARD, RAMONA V. CAIN, BEVERLY A. GREEN, DENISE M. GREEN, REGINA A. PEAIR, DANIELLE SCOTT, BERNARD W. WATTS, OLLIE BEDFORD, ALLAN M. & TIACHIA L. BENNETT, VERONICA J. JACKSON, ELI E. & CHINETRIA L. MUHAMMAD, ROBIN SAM, GERALD & CONNIE POPE, EZELL & MAE MONTGOMERY, and KENNETH & DEBRA BYRANT, Appellants

V.

MILLENNIUM TITLE OF HOUSTON, L.C. f/k/a

MHI TITLE COMPANY OF HOUSTON, L.C., Appellee

__________________________________________________

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 107,892B

__________________________________________________

M E M O R A N D U M O P I N I O N

On various grounds, appellants appeal a take-nothing summary judgment granted in favor of Millennium Title of Houston, L.C. f/k/a MHI Title Company of Houston, L.C. ( MHI ). We affirm.

When appellants purchased their properties in the Green Valley Estates residential subdivision, MHI conducted the closings (the closings ). Appellants later sued MHI, asserting negligence, breach of fiduciary duty, and violation of the Deceptive Trade Practices Act ( DTPA ) and Insurance Code. These claims were based on appellants allegations that: (1) MHI misrepresented to them at the closings that they were moving into a new and separate subdivision that was not part of the neighboring Ridgemont subdivision ( Ridgemont ) and that would have its own homeowners association that would not be part of, or controlled by, the Ridgemont homeowners association (the Ridgemont CIA ); and (2) MHI knew of discrepancies regarding the status of Green Valley Estates, the function of Ridgemont CIA, and the status of title to the common areas and had a duty to disclose those discrepancies to appellants, but failed to do so.[1] MHI moved for summary judgment on several grounds, including that there was no evidence[2] that it made a false or misleading representation or failed to disclose anything it had a duty to disclose. The trial court granted MHI a take-nothing summary judgment against all of appellants claims.

As to the first of the foregoing allegations, appellants brief cites no evidence to show that the alleged statements by MHI were false, i.e., that Green Valley Estates was not a separate subdivision from Ridgemont or that it would not have a homeowners association separate from Ridgemont CIA. Rather, appellants acknowledge in their brief that, although Green Valley Estates had previously been called Ridgemont Section Six, it was nevertheless a separate subdivision from Ridgemont with its own declaration of covenants, conditions, and restrictions (the declaration [3]). In addition, although the homeowners association for Green Valley Estates was, at the time of the closings, designated to be the Ridgemont CIA, appellants brief cites no evidence that MHI misrepresented this fact,[4] but only evidence that MHI reflected it in closing statements and then further acknowledged it to appellants when they asked about it. Moreover, the record reflects that a separate homeowners association was, in fact, thereafter created for Green Valley Estates (the Green Valley CIA ). Similarly, to whatever extent the period of time that transpired before the Green Valley CIA was created was ultimately more than temporary, as MHI had allegedly represented it would be, appellants brief cites no evidence that any such statement was false or misleading based on the information available at the time it was made.[5]

With regard to appellants allegation that MHI failed to disclose discrepancies regarding the status of Green Valley Estates, the function of Ridgemont CIA and the status of title to the common areas, appellants brief cites no authority that MHI had a duty to disclose any such information to the extent it was contained in the declaration or other recorded instruments and cites no evidence that MHI possessed any such knowledge beyond what was contained in those materials.[6] Nor does appellants brief cite any authority imposing a duty on MHI to ascertain any such knowledge if MHI did not possess it. Therefore, appellants have not demonstrated that the trial court erred in granting a no-evidence summary judgment on these elements of their claims against MHI, and we need not address their challenges to MHI s other, alternative grounds for summary judgment. Accordingly, the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed August 12, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Edelman.

[1] Appellants do not assert claims against MHI based on their title commitments, but only with regard to MHI s actions in conducting the closings. To the extent appellants brief alleges other misrepresentations by MHI that were not alleged in their seventh amended petition or supported by summary judgment evidence, those allegations present nothing for our review.

[2] After 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. Tex. R. Civ. P. 166a(i). The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact. Id. In reviewing a no-evidence summary judgment, we examine the record in the light most favorable to the nonmovants, looking to see if they presented more than a scintilla of evidence raising a genuine issue of material fact on the challenged elements of their claim. See Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.2002). Inferences drawn only from other inferences (i.e., rather than from facts in evidence) are not legally sufficient evidence. See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003).

[3] For purposes of this opinion, references to the declaration will include any amendments thereto.

[4] Citing a Planned Unit Development Rider, appellants brief contends that MHI misrepresented to every Plaintiff that the Buyer s property was part of a planned unit development known as Green Valley Estates which was holding title to the common areas. However, we find no language in this document supporting any such allegation.

[5] For example, an affidavit attached to appellants summary judgment response indicates that formation of the Green Valley CIA involved collecting signatures from 75% of the property owners in that subdivision and an amendment to the declaration.

[6] See, e.g., Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 479 (Tex. 2001) (recognizing that the DTPA imposes no duty to disclose that which a defendant didn t know, even if he should have known it). To assume, as appellants contend, that MHI possessed knowledge merely by reason of its corporate affiliation with one of the builders would be speculation and no evidence of any such knowledge. Nor does appellants brief cite any authority or evidence allowing such knowledge to be imputed based on the nature of the relationship. Similarly, although appellants brief contends that MHI had a duty to assess the legal validity of the designation of Ridgemont CIA as the homeowners association for Green Valley Estates and thus the propriety of payments of fees and assessments to Ridgemont CIA, it cites no authority supporting imposition of such a duty.