Colton MacPherson v. Carolina Pena and Suzanne Anderson Properties LLC ( 2022 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-20-00221-CV
__________________
COLTON MACPHERSON, Appellant
V.
CAROLINA PENA AND
SUZANNE ANDERSON PROPERTIES LLC, Appellees
__________________________________________________________________
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 20-09-11021-CV
__________________________________________________________________
MEMORANDUM OPINION
Colton MacPherson appeals a series of summary judgments
involving his purchase of a home granted in favor of Carolina Pena and
Suzanne Anderson Properties LLC (Anderson Properties), the seller’s
real estate agent and the broker through which the agent worked.
1
MacPherson bought the home from Leila Shahin Aglony, and his claims
against her went to trial. 1
Pena, a registered real estate agent with Anderson Properties,
represented Aglony in the transaction. The transaction involved
MacPherson’s decision to purchase a home Aglony bought in a foreclosure
sale in Montgomery County, which she then had remodeled by contractor.
After her contractors remodeled the home, she sold to MacPherson for
$140,000. In one issue, MacPherson contends the trial court erred in
granting Pena’s and Anderson Properties’ combined traditional and no-
evidence motions for summary judgment because: (1) the “as is” clause in
his real estate contract with Aglony did not negate causation; (2) his pre-
purchase inspection of the home did not negate his reliance on the
representations that Aglony, as the seller, made about the house; (3)
proof that Pena and Anderson Properties intended to defraud him or had
1Macpherson sued Aglony in the same suit, but after the trial court
granted Pena’s and Anderson Properties’ motions for summary
judgment, the trial court severed the case involving them into a separate
cause. The case against Aglony was then tried to the bench, but the trial
court in the bench trial rendered a take-nothing judgment against
Macpherson on those claims. In September 2022, the Ninth Court of
Appeals affirmed the trial court’s judgment as the Macpherson’s case
against Aglony. MacPherson v. Aglony, No. 09-21-00004-CV, 2022 Tex.
App. LEXIS 7105, at *1 (Tex. App.—Beaumont Sept. 22, 2022, no pet. h.).
2
knowledge of Aglony’s false representations made by Aglony in her
disclosures about the home are not elements required to prove statutory
fraud or a claim under the DTPA; (4) the summary-judgment evidence
includes proof sufficient to raise issues of material fact on causation and
reliance; and (5) the summary-judgment evidence supports each of the
elements of his claims. We conclude MacPherson didn’t present evidence
raising an issue of material fact on at least one of the essential elements
of each of his claims. We will affirm the trial court’s ruling granting
Pena’s and Anderson Properties’ no-evidence motion.
Factual and Procedural Background
The factual background provided below is based largely on
depositions the parties included in the summary-judgment evidence. The
evidence shows that Aglony buys, renovates, and sells houses. Carolina
Pena, a registered real estate agent with Anderson Properties, testified
that she has represented Aglony in around eighteen transactions.
As to the home at issue in this suit, Aglony inspected the home
before she bought it in a foreclosure sale in March 2017. When she bought
the home, Aglony acknowledged knowing the home needed repairs before
it could be listed for sale. That said, Aglony also testified she couldn’t
3
recall whether, in the inspection she conducted before buying the home,
she noticed there were any problems with the walls or floors. Even so, a
photograph from a website maintained by agents who are members of the
Houston Association of Realtors, which was taken before Aglony bought
the home, shows a crack in the living room running across the floor.
Except for the pre-purchase inspection Aglony conducted before buying
the home, there is no other evidence showing she saw the home again
until after the contractors she hired completed their repairs.
Aglony testified she paid contractors around $45,000 to repair the
home before she put it on the market. The work she paid for included
repairing floors with a material known as shotcrete. Invoices from
Aglony’s contractors show that shotcrete was used in more than one of
the rooms of the home. 2 Aglony also paid contractors for work they did
to repair interior walls and to replace five windows on the back of the
home. Aglony’s contractors also installed flooring, carpeting, kitchen
2Shotcrete, also known as gunite, is “a mixture of cement, sand and
water applied through a pressure hose, producing a dense hard layer of
concrete used in building for lining tunnels and structural repairs.” NEW
OXFORD AMERICAN DICTIONARY 775, 1617 (3d ed. 2010) (defining gunite
as quoted above and indicating that shotcrete “is another term for gunite”
at page 1617).
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counters, and painted the inside of the home. Due to the repairs, the
cracks on the floors and the walls inside the home were no longer visible
in a walk-through inspection of the home.
Pena, as Aglony’s agent, listed the home for $145,00 on an internet
listing, which Pena arranged to have posted in June 2017. The listing
includes general information about the fact the home had been remodeled
and updated throughout. That said, nothing is mentioned about the
shotcrete treatment applied to the floors of some of the rooms. Still,
nothing in the contractors’ invoices shows whether the shotcrete
treatment was cosmetic or structural, and there is also nothing in the
invoices showing how wide the cracks were in the floor. There is also no
evidence that Pena knew the contractors had used shotcrete to repair the
floors or that Pena knew whether the contractors had performed any
structural repairs on the walls of the home.
In July 2017, MacPherson signed a contract to purchase the home
for $140,000. MacPherson, as the buyer, and Aglony, as the seller, were
represented by separate real estate agents in the transaction. To
document the transaction, the parties used the “Texas Real Estate
Commission (TREC) One to Four Family Residential Contract (Resale)”
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form. As to the condition of the property, the contract contains two
options. First, a buyer may accept the property “as is,” a term the contract
defines as “the present condition of the property with any and all defects
and without warranty except for the warranties of title and the
warranties in this contract.” Second, the buyer may accept the property
as is subject to repairs that the seller specifically lists on the form. Under
the agreement MacPherson signed, MacPherson selected the first option,
accepting the property “as is.” But even then, MacPherson had the right
to inspect the property at reasonable times after signing the contract, and
he also had the option to terminate the contract for any reason for ten
days. As discussed below, the summary-judgment evidence shows that
MacPherson used a home inspector to inspect the property. Even though
the inspector found several problems during the inspection, MacPherson
did not exercise his option and cancel the contract; instead, he elected to
close on the home.
The summary judgment evidence includes the “Seller’s Disclosure
Notice,” a standard form used by Houston Realtors. The disclosure notice
Aglony signed states: “Seller acknowledges that the statements in this
notice are true to the best of Seller’s belief and that no person including
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the broker(s), has instructed or influenced Seller to provide inaccurate
information or to omit any material information.” MacPherson
acknowledged receiving the notice, and he acknowledged “the brokers
have relied on this notice as true and correct and have no reason to
believe it to be false or inaccurate. YOU ARE ENCOURAGED TO HAVE
AN INSPECTOR OF YOUR CHOICE INSPECT THE PROPERTY.”
In the Seller’s Disclosure Notice, Aglony represented she did not
occupy the property and had never occupied it. Section 1 asks “Are you
(Seller) aware of any of the items listed in this Section 1 that are not in
working condition, that have defects, or are in need of repair?” The box
beside that question is checked “no,” with an additional explanation
stating, “Seller is an investor and has never occupied this property and
is not aware of any previous condition.” Like Section 1, Section 3 asks
“Are you (Seller) aware of any of the following conditions:” Aglony did not
mark the various items in that section either yes or no, and instead,
beside that question she put, “Seller is an investor and is not aware of
any previous condition[.]”
MacPherson hired Ray Basinger, a TREC-licensed inspector to
inspect the property before closing on the sale, which was scheduled to
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occur on August 4, 2017. Basinger performed the inspection on July 11,
2017, and he prepared a report, which details his findings. In the report,
Basinger opened and closed all windows and doors to assess them for
racking and movement, and he went into the attic to evaluate whether
there had been any structural movement of the framing. Based on his
inspection, he determined “the foundation appeared to be supporting the
structure as intended.” With respect to the exterior walls, Basinger noted
that the “brick veneer appears to be repaired in several areas throughout.
The repairs appear to be cosmetic but should be monitored. I recommend
asking the current owners regarding the repairs.” As to interior and
exterior walls, Basinger noted that both “appear to have settled in
multiple areas” In his report, he also noted “[t]he doors and windows have
poor gaps around the outside. There are no drywall cracks as the interior
and exterior have been painted. I recommend monitoring for cracks.”
On July 26, Aglony and MacPherson signed an amendment to the
contract. The amendment required Aglony, at her expense, to complete
the following: “Treat termites, remove high soil lines, repair all noted
[deficiencies in] breaker panel box in the inspection report, install lock in
master bedroom, ground kitchen & bedroom outlets, repair loose oven
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power outlet, remove paint in outlets.” The parties closed on the sale of
the home on August 4.
After MacPherson moved into the home in August 2017, he claims
that he “discovered many defects that he did not expect based upon the
information” he was given by Aglony, Pena, and Anderson Properties
about the home. In his Original Petition, MacPherson alleged the
“Defendants provided Plaintiff with the improperly filled out Sellers
Disclosure[,]” and “failed to disclose the repairs that Aglony performed
on the Property, including but not limited to the repairs she performed
on the floors, walls and foundation.”
In July 2018, Dean Read, a structural engineer employed by MLAW
Forensics and who was hired by MacPherson’s attorney to inspect
MacPherson’s home. Following his inspection, Read issued a report with
these findings:
1. The foundation has experienced significant movement
resulting in finishing material distress. The distortion of the
foundation exceeds the limit set forth in the TEXASCE
Guidelines. Considering the magnitude of finishing material
distress (both present and repaired) and distortion, the
foundation is considered to have distorted materially.
2. While some finishing material distress was present during
MLAW Forensics’ site inspection, the minor to moderate
distress observed is not consistent with the severe distortion
documented. This inconsistency between the magnitude of
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distress and distortion indicates that significant foundation
movement occurred prior to Mr. Macpherson’s purchase of the
property. If the foundation movement would have occurred
during Mr. Macpherson’s less than one year of ownership,
more significant distress would have been present during
MLAW Forensics’ site inspection.
3. Indications of significant finishing material distress repairs
were observed during MLAW Forensics’ site inspection. Mr.
Macpherson indicated that he has not performed any repairs
subsequent to his purchase. Ms. Aglony’s photographs
indicate that some distress was repaired during the
“remodel.” The changed condition at the interface between the
fireplace brick veneer and the adjacent wall and the
cementitious overlay support this conclusion.
4. Based on the magnitude of repairs observed and the
distortion, Ms. Aglony was more likely than not aware of the
foundation movement. The repairs she made to cover the
distress would have made it difficult for prospective buyers to
note the foundation movement. Mr. Macpherson reported that
additional distress started to appear shortly after purchasing
the house.
5. Considering the foundation’s performance, structural
remediation is recommended. The recommended remediation
should consist of supporting the entire foundation (perimeter
and interior) on concrete piles. Due to the magnitude and
extent of the movement and the proximity of trees to the
foundation, partial remediation of the foundation is not
recommended.
6. In addition to the structural remediation, the following should
also be performed:
a. The drainage around the site should be improved to quickly
convey water away from the foundation and off the site. This
includes removal of the flowerbed skirting.
b. Vegetation should be established in areas with no ground
cover.
c. The plumbing (including the sanitary sewer and domestic
water supply) should be tested and any identified leaks should
be repaired.
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7. As with all foundations on expansive soils, routine
maintenance by the homeowner of the drainage and
landscaping / ground cover conditions is required. It is critical
that proper drainage be maintained over the life of the
structure.
In November 2019, alleging they violated the DTPA, committed
fraud, fraudulently induced him into signing the contract, committed
fraud in a real estate transaction, breached the contract, acted
negligently, and conspired to commit a fraud, MacPherson sued Aglony,
Pena, and Anderson Properties. Six months later, Pena and Anderson
Properties filed a combined traditional and no-evidence motion for
summary judgment. Their joint motion argues the “as is” clause in the
contract on the home negates causation on MacPherson’s claims as a
matter of law. Second, they argued that by having a professional
inspection on the home, MacPherson could not prove causation or
reliance on his claims that sound in fraud. Third, Pena and Anderson
Properties claimed that MacPherson could produce no evidence to
support his conspiracy claim. Pena and Anderson Properties attached the
following documents to their joint motion:
• Excerpts from the deposition transcript of Marie McClimans, the
realtor who represented MacPherson in buying the home;
• The Seller’s Disclosure Notice, which Aglony signed;
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• The One to Four Family Residential Contract for the Property,
which Aglony and MacPherson signed;
• Ray Basinger’s July 2017 Property Inspection Report;
• Excerpts from the deposition transcript of Colton MacPherson;
• Excerpts from the deposition transcript of Carolina Pena;
• Excerpts from the deposition testimony of Ray Basinger; and
• Excerpts from the deposition transcript of Leila Aglony.
When MacPherson responded to the combined motion for summary
judgment, he argued the “as is” clause in the sales contract and the fact
he had the property inspected did not defeat causation or reliance on his
claim of fraud. As MacPherson tells it, Pena admitted she committed
fraud in a request for admission by admitting she knew the condition the
property was in when Aglony purchased it, by admitting that she knew
Aglony made repairs to the property, and by testifying that she knew
there were cracks in the floor of the home when Aglony bought it, which
Aglony failed to include in the Seller’s Disclosure Notice that Pena filled
out when she listed the home for sale.
MacPherson attached the following exhibits to his reply:
• The March 14, 2017, Settlement Statement;
• The complete deposition transcript of Carolina Pena;
• The complete deposition transcript of Leila Aglony;
• The letter Aglony’s attorney sent MacPherson’s attorney after
Aglony was notified of MacPherson’s suit, a letter that
includes several exhibits concerning the sale;
• Aglony’s responses to MacPherson’s Requests for Admission;
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• Invoices from contractors that Aglony hired to repair the
home;
• The One to Four Family Residential Contract;
• The Seller’s Disclosure Notice;
• A declaration, signed by Colton MacPherson;
• Dean Read’s July 2018 foundation performance evaluation
and report; and
• Pena’s responses to MacPherson’s Requests for Admission.
Generally, Pena and Anderson Properties argue that because
Aglony hired contractors to repair the home, they didn’t know the details
of what was wrong with the home when Aglony placed it on the market
to be sold. They also rely on the “as is” clause in MacPherson’s contract,
claiming MacPherson relied on his own inspector and not what was in
Aglony’s disclosures in deciding to purchase the home. They note that
MacPherson’s home inspector told him there had been settlement in
multiple areas that involved the interior and the exterior walls.
MacPherson, however, elected to close on the sale even though he could
have exercised his option and canceled the deal. The trial court granted
Pena’s and Anderson Properties’ combined no-evidence and traditional
motions, ordering MacPherson as against Pena and Anderson Properties
“take nothing” on his claims.
A few weeks later, the trial court severed MacPherson’s claims
against Pena and Anderson Properties from Trial Court Cause Number
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19-11-15649-CV into Trial Court Cause Number 20-09-11021-CV. so that
the summary judgment could become final. This appeal followed.
Standard of Review
We apply a de novo standard to review a trial court’s ruling
granting a motion for summary judgment. 3 When, as here, the trial court
didn’t specify the exact basis for its ruling, we must affirm the “summary
judgment if any of the grounds asserted are meritorious.” 4 In our review,
we are restricted to considering the arguments the nonmovant presented
to the trial court in its written motion or response. 5
Pena and Anderson Properties combined their no-evidence and
traditional motions into a single “hybrid” motion for summary judgment.6
In one section of its hybrid motion, Pena and Anderson Properties
asserted that MacPherson could produce no evidence to support the
3Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39,
45 (Tex. 2017).
4Id.
5McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343
(Tex. 1993).
6Motions for traditional summary judgment, filed under Rules
166a(a) or (b), may be combined with Rule 166a(i) no-evidence motions in
what are commonly referred to as “hybrid” motions for summary
judgment. Binur v. Jacobo, 135 S.W.3d 646, 650-51 (Tex. 2004); see also
City of Magnolia 4A Econ. Dev. Corp. v. Smedley, 533 S.W.3d 297, 299
(Tex. 2017) (per curiam).
14
elements of his conspiracy claim. In another, Pena and Anderson
Properties argued the summary-judgment evidence supporting their
joint motion conclusively established that MacPherson could not prevail
on his claims. In appeals from hybrid motions, we first decide whether
the trial court’s ruling on the no-evidence part of the hybrid motion may
be sustained before addressing the trial court’s ruling on the traditional
section of a hybrid motion. 7
In no-evidence motions, the motion must allege that no evidence
supports one or more of the essential elements of the plaintiff’s claim.8
Thus, the motion must state “the elements [of the claims on] which [it is
claiming] there is no evidence.” 9 When the motion contains the required
no-evidence allegations, the burden of proof shifts to the plaintiff to
produce evidence demonstrating that a genuine issue of material fact
exists on the challenged elements of plaintiff’s claim. 10 When deciding the
no-evidence motion, the trial court must grant the motion if
(a) there is a complete absence of evidence of a vital fact, (b)
the court is barred by rules of law or of evidence from giving
weight to the only evidence offered to prove a vital fact, (c) the
7Id.
8Tex. R. Civ. P. 166a(i).
9Id.
10Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).
15
evidence offered to prove a vital fact is no more than a mere
scintilla, or (d) the evidence conclusively establishes the
opposite of the vital fact. 11
“A traditional motion for summary judgment requires the moving
party to show that no genuine issue of material fact exists and that it is
entitled to judgment as a matter of law.” 12 In reviewing summary-
judgment evidence, we “take as true all evidence favorable to the
nonmovant, and we indulge every reasonable inference and resolve any
doubts in the nonmovant’s favor.”13
Analysis
The DTPA, Fraud, and Negligence Claims
On appeal, MacPherson contends that the trial court erred in
relying on the “as is” clause in granting the hybrid motion for summary
judgment because it (1) is boilerplate in the parties’ contract, which is not
part of the parties’ bargain, and because it does not shield Pena and
Anderson Properties for engaging in fraud. He also argues that the fact he
had the home inspected does not relieve Pena and Anderson Properties from
11King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
12City of Richardson v. Oncor Elec. Delivery Co. LLC, 539 S.W.3d
252, 258 (Tex. 2018); see also Tex. R. Civ. P. 166a(c).
13Hillis v. McCall, 602 S.W.3d 436, 440 (Tex. 2020) (cleaned up).
16
failing to disclose Aglony covered up what he characterizes as “undisclosed,
temporary repairs.”
All of MacPherson’s claims are predicated on the theory that Pena
and Anderson Properties knew of and concealed unrepaired defects in
either the foundation or walls of the home that existed when Aglony sold
the home. Pena’s and Anderson Properties’ hybrid motion claims they
were entitled to summary judgment because they didn’t “make any
representations to MacPherson, nor did they know of the falsity of any”
of the statements that Aglony made in the Notice of Disclosure that she
signed. They also argued MacPherson couldn’t prove he relied on
anything they said or didn’t say, since he purchased the property “as is”
and because he had the home inspected by his own inspector before
closing on the sale.
Here, the summary judgment evidence contains the parties’
contract, which includes an “as is” clause. The evidence also shows that
before closing on the home, MacPherson had an inspection done that
revealed the walls of the house had settled in multiple areas. Yet he then
chose not to have the home’s foundation or walls inspected by an engineer
17
before he closed on the home despite the fact that he could have canceled
the contract to purchase the home.
To be sure, the summary judgment evidence shows that Aglony
hired contractors who filled in cracks in the floors in some of the rooms
and then covered them with flooring material or carpet before Aglony
placed the home on the market for sale. And Aglony didn’t disclose that
these cracks existed or that the cracks had been repaired in the
Disclosure Notice she signed when she listed the home for sale. That said,
MacPherson failed to show that Aglony was aware of any unrepaired
defects or malfunctions in that Pena or Anderson Properties knew the
home when Aglony listed it for sale had unrepaired structural defects in
the floors or walls that Aglony did not disclose. 14 For example, there is no
evidence that Pena or Anderson were told by Aglony or that had
independent knowledge that Aglony’s contractors had used shotcrete to
coverup any preexisting structural problems with the foundation of the
home.
The summary-judgment evidence shows that Pena didn’t hire the
contractors or see the home while it was being repaired. Thus, she had
142022 Tex. App. LEXIS 7105, at *41-42.
18
even less information than Aglony had about the home when Aglony
asked Pena to list it for sale. In her deposition, Pena testified she never
saw the home while it was being repaired. So while Pena knew generally
that Aglony had contractors perform substantial work to remodel the
home, she did not know the details about the extent of the repairs
relevant to the issues MacPherson complained about in his suit. We
conclude that MacPherson failed to present evidence sufficient to raise a
genuine issue of a material fact showing that Pena knew unrepaired
cracks in the walls, foundation, or floors still existed when Aglony listed
the home for sale or to prove that Pena knew there were structural
problems with the foundation when the home was listed and sold.
Under section 5.008 of the Texas Property Code, a seller of
residential real property is required to give the purchaser of the property
a written notice—the “Seller’s Disclosure Notice”—which requires the
seller to disclose their knowledge of the condition of the property. 15 This
notice must be filled out on the form prescribed in the statute, or on a
form that is “substantially similar” to the notice the statute prescribes.16
15See Tex. Prop. Code Ann. § 5.008(a).
16Id. § 5.008(b).
19
The law imposes a duty on sellers of real property, not their agents, to
complete the Seller’s Disclosure. 17 The Notice makes it clear that the
representations within the Notice are the sellers’ alone. 18 So even though
Pena filled out the Notice from information that Aglony provided,
MacPherson could not reasonably rely on any statements in the Notice
as statements made by Pena or by Anderson Properties. 19 Stated another
way, unless a broker or real estate agent knows information in a Seller’s
Disclosure Notice is false, a real estate agent and the agency she works
for is generally not liable for the representations or omissions in the
Seller’s Disclosure Notice because the representations in the Notice are
the seller’s alone. 20
17See id. § 5.008(a), (d).
18On the first page the Notice states: “THIS NOTICE IS A
DISCLOSURE OF SELLER’S KNOWLEDGE OF THE CONDITION OF
THE PROPERTY AS OF THE DATE SIGNED BY SELLER AND IS NOT
A SUBSTITUTE FOR ANY INSPECTIONS OR WARRANTIES THE
BUYER MAY WISH TO OBTAIN. IT IS NOT A WARRANTY OF ANY
KIND BY SELLER, SELLER’S AGENTS, OR ANY OTHER AGENT.”
19See Sherman v. Elkowitz, 130 S.W.3d 316, 320-21 (Tex. App.—
Houston [14th Dist.] 2004, no pet.).
20See Van Duren v. Chife, 569 S.W.3d 176, 188 (Tex. App.—Houston
[1st Dist.] 2018, no pet.) (explaining the general rule); see also Tex. Occ.
Code Ann. § 1101.805(e) (creating the exception that applies if the broker
is shown to have known the sellers made a representation that was false,
or knows the seller misrepresented or concealed a material fact and the
20
Here, it’s undisputed that Pena didn’t have a role in advising,
directing, or supervising any of the repairs that Aglony’s contractors
performed on the home. For that reason, when Aglony asked Pena to put
the home on the market, Pena and Anderson Properties were unaware
whether there were still cracks in the floors or the walls of the home that
Aglony’s contractors had not repaired.
Pena also testified that she didn’t have the expertise to determine
whether the presence of cracks revealed that a foundation problem
existed in a home. MacPherson produced no evidence to dispute her
testimony. According to Pena, had a foundation problem existed, she
would have expected MacPherson’s inspector to have identified it during
his inspection even with had any existing cracks been covered by carpet.
Finally, even had MacPherson shown Pena was aware that
Aglony’s contractors had performed repairs to cracks in the walls and
floors, evidence of repairs without more does not show that a person
knows a defect still exists in a home. Several years ago our sister court,
the First Court of Appeals, explained that concept this way: “Knowledge
broker failed to disclose their own knowledge of the seller’s
misrepresentation or concealment).
21
of past repairs does not establish knowledge of a present defect[.]” 21 Thus,
even if Pena knew Aglony hired contractors who performed repairs that
Aglony didn’t specifically disclose in her Seller’s Disclosure, that still
doesn’t support a reasonable inference that Pena knew the home was
being sold with defects that Aglony failed to disclose when she filled out
the Notice. 22 Finally, Pena and Anderson Properties didn’t have an
independent duty to MacPherson—who did not employ them—to
investigate the accuracy of the representations Aglony included in the
Seller’s Disclosure to determine whether the statements in it were true.23
To sum it up: The summary-judgment evidence shows Pena had
seen the home needed some repairs before Aglony bought it, but that
Pena had no expertise in identifying foundation problems in homes. In
response to Pena’s and Anderson Properties’ hybrid motion, MacPherson
produced no evidence to show that Pena and Anderson Properties knew
or were negligent in failing to disclose what they didn’t know.
21Van Duren, 569 S.W.3d at 188.
22Id.
23See Kubinsky v. Van Zandt Realtors, 811 S.W.2d 711, 714 (Tex.
App.―Fort Worth 1991, writ denied) (holding that listing real estate
agent has no legal duty to inspect listed property beyond asking the
sellers if such defects exist).
22
MacPherson also produced no evidence to show that Pena and Anderson
Properties knew the home still had unrepaired problems that Aglony’s
failed to disclose when Aglony asked Pena to list the home for sale. After
carefully reviewing the summary-judgment evidence, we conclude the
trial court properly granted the defendants’ no-evidence motions on
MacPherson’s seven claims.
Conclusion
We overrule MacPherson’s issue and affirm the trial court’s
judgment.
AFFIRMED.
_________________________
HOLLIS HORTON
Justice
Submitted on May 12, 2022
Opinion Delivered December 15, 2022
Before Kreger, Horton and Johnson, JJ.
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