Ta-Kwei Yen, et al. v. Newmark Home Corporation--Appeal from 268th District Court of Fort Bend County

IN THE

TENTH COURT OF APPEALS

No. 10-93-205-CV

TA-KWEI YEN, ET AL.,

Appellants

v.

NEWMARK HOME CORPORATION,

Appellee

From the 268th District Court

Fort Bend County, Texas

Trial Court # 78,458

O P I N I O N

Plaintiff-Appellants Mr. and Mrs. Yen sued Defendant-Appellee Newmark Home Corporation (for damages to their home which they purchased) under common law fraud and violations of the Deceptive Trade Practices Act (hereinafter called "DTPA").

Defendant-Appellee Newmark filed a motion for summary judgment which was responded to by the Yens and after a hearing the trial court granted Appellee Newmark's motion, from which the Yens appeal on four points of error as follows:

The trial court erred in granting Newmark's motion for summary judgment because: (1) the pleadings and affidavits submitted are controverted and raise disputed issues of material fact; (2) the pleadings and summary judgment proof established as a matter of law that there is a genuine dispute as to all elements of the Yens' claim; also there is a dispute over whether Newmark's deceptions were a producing cause under the DTPA; (3) Newmark failed to meet its burden of proof to conclusively establish that no dispute exists as to one or more elements of the Yens' claim; and (4) the trial court erred in failing to view the summary judgment evidence in the light most favorable to the Yens (non-movants) and in failing to resolve all doubts as to the existence of an issue of fact in the Yens' favor. We overrule all of Plaintiff-Appellants' points and contentions and affirm the judgment of the trial court.

On September 28, 1990, Appellants purchased a house originally built by Newmark located at 2726 Oakland, Sugar Land, Texas. They did not purchase the house from Newmark, but bought the property from one Tommy Swate. Swate was the second owner of the house, having previously acquired it from the original purchaser, one Yvette Salinas. Salinas had purchased the house from Newmark on August 31, 1989, for a purchase price of $169,950.00

On July 20, 1990, the Yens entered into a purchase contract with Swate to buy the property for a price of $162,000. The contract provided that the Yens had the right to make inspection of the property, including but not limited to foundation inspections. On July 26, 1990, a structural inspection of property was made for the Yens by Richard H. Sewing, a professional engineer, of the firm of Professional Engineering and Inspections, Ltd (hereinafter referred to as "PEI"). Mr. Yen was present at the PEI inspection and was provided with the PEI inspection report on or before July 30, 1990, which report clearly stated that the house should be levelled and stabilized.

Plaintiff-Appellant Yen received and read the PEI inspection report prior to the time the home was purchased. Mr. Yen read this report that the house needed to be levelled and stabilized; however, the Yens did not take any steps toward levelling or stabilizing the house. Mr. Yen admitted that he was present when the PEI inspection was being made; however, he asserted that he did not care about the condition of the foundation prior to the time he actually purchased the house. Moreover, the Yens did not make any request to Newmark to provide them with any type of inspection report concerning the condition of the property prior to their purchase of the property.

The Yens entered into an agreement with Swate whereby $3,000 was placed in escrow by the Yens which would, under certain conditions either be returned to the Yens or paid to Swate, thus affecting the purchase price of the house. More specifically, this special escrow agreement provided that if an independent inspector or an independent structural engineer stated that a pier was required for the house and the pier was not placed within six months, then the $3,000 escrow was to be returned to the Yens. If, however, a pier was required and placed within six months after closing, the $3,000 placed in escrow would be paid to Swate. Thus, if a pier had been installed within the six-month period, the total purchase price would have been $3,000 higher, or $165,000. It is undisputed that the $3,000 was returned to the Yens and no pier was put in place within the six-month period referred to in the Special Escrow Agreement.

About a month before the closing of the purchase of the house, the Yens moved into and lived in the house.

Appellants assert that Appellee Newmark led them to believe that the house had no structural defects and was structurally sound before and after the closing; however, the record does not contain any evidence that Newmark's representatives made any statement about the property or alleged defects to the Yens. Mr. Yen's affidavit did state that he assumed the house was sound because nothing to the contrary was told to him and the loan was approved. In short, the summary judgment evidence is undisputed that Newmark made no representations to the Yens about the condition of the house.

The record is also undisputed that the Yens caused the PEI inspection to be made and that they knew what the inspection revealed to them prior to their purchase; that the Yens negotiated the purchase price of the house with Swate, which price took into account the possibility of the cost of repairs to the foundation.

Newmark was neither involved in the negotiations between the Yens and Swate, nor did Newmark receive any consideration from the Yens as a result of their purchase of the house from Swate. It is undisputed that the Yens were fully aware of the condition of the house at the time they purchased it, and that Newmark made no misrepresentation to the Yens or breach of warranty concerning the condition of the house that would be the producing cause of Appellant Yens' damages under the DTPA.

The movant for summary judgment 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. In deciding whether there is a disputed material fact issue 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. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-549 (Tex. 1985). When, as in the case at bar, the trial court's order does not specify the grounds relied upon for its grant of summary judgment, the summary judgment will be affirmed if any of the theories advanced are meritorious. Owen Electric Supply, Inc. v. Brite Day Construction, Inc., 821 S.W.2d 283, 286 (Tex. App. Houston [1st Dist.] 1991 writ denied). On appeal, a non-movant may not present an issue that it did not raise in the trial court as a ground for defeating a summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 679 (Tex. 1979). The appellate court can only consider the record as it existed at the time the summary judgment was entered. Johnnie C. Ivy Plumbing Co. v. Keyser, 601 S.W.2d 158, and the cases cited at p. 160 (Tex. Civ. App. Waco 1980, no writ). Bearing in mind the above rules to the summary judgment record before us, this leaves only Appellants' DTPA claims based on misrepresentations and breach of implied warranty. To prove a cause of action under the DTPA, Appellants would have to prove the existence of the deceptive act, that is, a misrepresentation or breach of an implied warranty, which was the "producing cause" of damages to Appellants. Tex. Bus. & Com. Code Ann. 17.50(a).

In the case before us, in the first place there is no summary judgment evidence in the record that Appellee ever made any misrepresentation to Appellants, as we have hereinabove discussed; however, be that as it may, the summary judgment evidence conclusively establishes that Appellants' damages were not caused by any acts or omissions by Appellee. Stated differently, there is no summary judgment evidence that Appellee committed any misrepresentation or has been charged with any breach of warranty that was the producing cause of Appellants' damages. See Dubow v. Dragon, 746 S.W.2d 857 (Tex. App. Dallas 1988, no writ).

We accordingly affirm the trial court's judgment.

JOHN A. JAMES, JR.

Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Justice James (Retired)

Affirmed

Opinion delivered and filed April 26, 1995

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