Leslie R. Pogue and Jeanette I. Pogue v. Elizabeth A. Williamson ( 2020 )

Opinion issued March 12, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00844-CV
———————————
LESLIE R. POGUE AND JEANETTE I. POGUE, Appellants
V.
ELIZABETH A. WILLIAMSON, Appellee
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Case No. 2012-56353
OPINION
This real-estate contract case asks whether an unambiguous “as-is” and
disclaimer-of-reliance provision precludes a buyer’s fraudulent-inducement,
common-law fraud, statutory-fraud, negligent-misrepresentation, and Deceptive
Trade Practice Act (DTPA) claims. The parties to this arm’s-length transaction
negotiated its terms, agreed to include clear and broad “as-is” and disclaimer-of-
reliance language, and worked with an attorney and a real-estate agent who acted as
intermediaries between the two. Because the disclaimer-of-reliance clause is
enforceable, it negates the essential element of reliance in the buyer’s fraudulent-
inducement claim, which in turn renders the “as-is” clause enforceable. The “as-is”
clause severs the causal link between the seller’s misrepresentation and the buyer’s
damages. Accordingly, the buyer’s claims are contractually barred. We therefore
reverse the trial court’s judgment and render judgment that the buyer take nothing.
Background
Appellants Leslie and Jeannette Pogue owned a 33-year-old home in Crosby.
The Pogues purchased the four-and-a-half-acre property in 2000. When Hurricane
Ike hit Texas in 2008, the property was damaged. The Pogues used insurance
proceeds to replace the roof, repaint the house, replace some sheetrock, and repair
exterior trim. The following year, the Pogues moved to Bellville and put their Crosby
home on the market. After failing to sell their property after seven months, the
Pogues retained real estate agent Gina Jones.
The Crosby home was vacant for nearly a year and a half when Lewis Walker,
appellee Elizabeth Williamson’s then fiancé and eventual husband, expressed
interest in the property. Because of his poor credit, Walker could not qualify for a
loan. As an alternative, the Pogues agreed to rent the property to him. Before Walker
2
agreed to rent the property, he and Williamson, who lived only two streets away,
looked at the property. Williamson was well aware of the property; she described
the property as “iconic.” Williamson explained, “It wasn’t so much just the house.
It was just—the land and everything, the way it was set up. It was just a really nice
property.” Because the Pogues would not sell the property to Walker, Williamson
decided to make an offer.
When she made the offer to the Pogues, Williamson visited the property a
second time. Like Williamson’s first visit to the property with Walker, the Pogues
were not there. During this second visit, Williamson noticed that the vacant
property’s overgrowth was so severe that she could not see the landscaping. She also
noticed that the garden was unattended, the garage was full of debris, the pool was
black and filled with patio furniture, the inside of the home smelled musty, and the
carpet was “nasty” and needed replacing. Williamson described the barn on the
property as looking “Silence of the Lambs” scary as it had “needles and syringes on
the ground, and on tables.” But Williamson, a first-time home buyer, was excited.
Williamson and the Pogues initially entered into an earnest money contract
for the sale of the property. The Pogues asked $235,000 for the property, but
Williamson, also working with Gina Jones, put together a non-standard offer to
purchase the property for $210,000 with a wrap note and a two-year balloon
3
payment.1 The Pogues were willing to work with that price and provide owner
financing to Williamson. In the earnest money contract, Williamson agreed that she
would “accept[] the Property in its current condition.” The agreement also provided
that Williamson could have the property inspected by professionals, but Williamson
decided against an inspection.
Before she could purchase the property, Williamson had to obtain property
insurance. During that process, she learned from her insurance company that a wind
claim had previously been made on the home. Williamson asked Jones about any
insurance claims that may have been made on the property. Jones then contacted
Mrs. Pogue, who responded, “We replaced the roof on November 20, 2008, after
Hurricane Ike with Holding Roofing Inc., . . . for $18,737.92 . . . . Hope this helps
her.”
Before the parties closed, Williamson reviewed the seller’s disclosure the
Pogues prepared. It would later come to light that the disclosure had a number of
errors in it. But, at the time, everything looked good to Williamson, and, after signing
a number of documents, the parties closed on September 10, 2010. Those documents
1
A wraparound mortgage, or wrap note, is “[a] second mortgage issued when
a lender assumes the payments on the borrower’s low-interest first mortgage
(usu[ally] issued through a different lender) and lends additional funds. Such
a mortgage covers both the outstanding balance of the first mortgage and the
additional funds loaned.” Wraparound mortgage, BLACKS LAW DICTIONARY
(9th ed. 2009).
4
included a two-year note, a deed of trust, a warranty deed with a vendor’s lien, and
a number of other related documents.
The two-year note Williamson signed for the Pogues was for $210,000 and
provided for a final balloon payment for the full amount 24 months later. Williamson
also signed a deed of trust that secured the Pogues’ note and showed a final maturity
date of September 25, 2012. The Pogues signed a warranty deed with vendor’s lien
and conveyed the property to Williamson. Williamson signed the deed as grantee,
agreeing to accept the deed and consenting to its form and substance, acknowledging
that the terms of the deed “conform[ed] with [her] intent.” She further agreed to the
obligations imposed on her by the terms of the deed, the accompanying warranty
deed with vendor’s lien, and the deed of trust.
The deed of trust also included a paragraph that appeared in different typeface
and larger font size, making it obvious on the page. It read:
As a material part of the consideration for the Property, [the
Pogues have] executed this deed and granted, sold and conveyed the
above described property, premises and improvements, and
[Williamson] has accepted this deed and purchased the above-described
property, premises improvements, “AS IS.” [The Pogues] and
[Williamson] agree that there is no warranty by [the Pogues] that the
Property is fit for a particular purpose. [Williamson] acknowledges that
[she] is not relying upon any representations, statements, assertions or
non-assertions by the [Pogues] with respect to the Property condition,
but is relying solely on [her own] examination of the Property.
(Emphasis in original).
5
Williamson also signed a document acknowledging that Donna Heinlein, the
attorney who prepared the closing documents, was instructed by Williamson to
refrain from doing 19 specific actions on her behalf, including ordering a title policy,
ordering a survey, ordering a title search, “having a termite inspection, and/or having
experts inspect the premises and/or appliances,” ascertaining whether or not the
property was in a 100-year-flood zone, or ascertaining whether there were any
drainage problems or drainage easements.
Williamson and Walker moved into the property in October 2010, shortly
after they married. Not long after moving in, Williamson began to discover serious
problems with the home when she and Walker began replacing the carpet. Over the
next two years, the couple discovered extensive wood rot and termite damage; they
found mold and water penetration in the bathroom, east bedroom, master bedroom,
dining room, bar area, spa room, hallway, garage, kitchen, and piano room—
effectively the entire home and much of it behind recently applied paint; they also
encountered issues with the septic system leaching through the concrete and other
issues, such as the wiring for the electric stove intermittently failing and someone
having run a screw through a live wire in the wall. The mold damage was so
extensive in some places that it began on the interior walls of the home, extended
through the sheetrock and insulation, and stopped at the wood supports just inside
the brick exterior. As Williamson and Walker were discovering this damage, they
6
were fixing as much as they could, replacing sheetrock, insulation, carpet, bleaching
mold, replacing boards inside and outside, and much more. Williamson and Walker
incurred extensive costs during these repairs. By her estimate, between 2010 and
2013, the total cost of her and Walker’s labor, subcontracted labor, and supplies was
$85,116.92.
Shortly before the final balloon payment became due in September 2012,
Williamson sent an email to Mrs. Pogue and asked if she could have an extension
on the final payment, but the Pogues refused. Then, for the first time, Williamson
told the Pogues about the problems she and Walker had discovered with the home.
Williamson then hired an attorney to send a letter to the Pogues complaining that the
Pogues did not provide disclosures of the home’s condition, the septic tanks were
not up to code, there was extensive bug infestation, including termites, and there was
mold throughout the home. The letter stated that Williamson could not make the
final note payment and requested an 18-month extension. The parties could not reach
an agreement, and Williamson filed this lawsuit.2
Williamson alleged fraudulent-inducement, common-law-fraud, statutory-
fraud, negligent-misrepresentation, and DTPA claims. The basis of her claims
against the Pogues was her assertion that the Pogues had failed to disclose to her that
2
In addition to the Pogues, Williamson sued Jones and Alliance Properties, the
real-estate company. Jones and Alliance successfully moved for summary
judgment, and the claims against them are not a part of this appeal.
7
there was wood rot, termite damage, and other water damage in the home.
Williamson testified that her complaint was with representations the Pogues made
in the seller’s disclosure. For example, she noted that the disclosure listed that the
home did not have ceiling fans, a cooktop, a dishwasher, and fences, yet the property
had all of those things. Additionally, the Pogues stated in the disclosure that they
were not aware of any defects or malfunctions with any of the home’s electrical
fixtures, floors, walls, and ceilings. And during discovery, Williamson obtained a
full copy of the insurance claim the Pogues made in 2008 after Hurricane Ike. The
insurance claim showed that, in addition to the roof damage, the Pogues claimed
water damage and other structural damage throughout the home.
The Pogues filed counterclaims, including for breach of contract, statutory
fraud, common-law fraud, negligent misrepresentation, and filing of a fraudulent
court record. Litigation progressed over the next seven years, and in April 2017, the
case went to a trial. A day into trial, the Pogues dismissed all their counterclaims.
That same day, the parties settled their dispute. The case was removed from the trial
docket, and the parties were instructed to memorialize their settlement and return it
for entry within 45 days. Less than a week later, the Pogues “unilaterally and
unequivocally” withdrew consent to the proposed settlement, and the case was
returned to the trial docket.
8
Trial began for the second and final time on May 8, 2017. The trial court
adopted and incorporated the pretrial rulings from the previous attempt to try the
case. After several days of trial, Williamson rested and moved for a declaratory
judgment, asking the trial court to extinguish the deed-of-trust lien granted by
Williamson to secure her indebtedness to the Pogues. Williamson argued that,
because they abandoned their breach-of-contract counterclaims, the Pogues had no
right to enforce their lien. The trial court granted the motion and issued an order
permanently extinguishing the Pogues’ lien. The jury returned a verdict for
Williamson on all claims. Williamson moved to enter judgment. The trial court
granted the motion and rendered judgment, awarding Williamson $496,250 in actual
damages, $171,972.23 in trial-level attorney’s fees, $80,297.44 in pre-judgment
interest, and $12,250 in appellate-level attorney’s fees, for a total judgment of
$760,769.67.
Analysis
On appeal, the Pogues raise four issues. They first contend that the trial court
erroneously rendered judgment because, as a matter of law, Williamson’s signing of
the deed of trust, which contained the “as-is” and disclaimer-of-reliance clauses,
prevented her from proving an essential element of each of her claims. They next
maintain that the trial court’s extinguishment of their deed-of-trust lien was a
misapplication of Texas law. In the alternative, they argue third that the trial court
9
erroneously calculated the damages. Last, they contend that the trial court’s award
of attorney’s fees to Williamson was improper. Because we conclude that the terms
of the deed of trust precluded Williamson from proving the essential elements of
causation and reliance, we reach only the Pogues’ first and second issues.
I. The “as-is” and disclaimer-of-reliance clauses
The Pogues maintain that the deed of trust’s “as-is” and disclaimer of reliance
clauses bar Williamson’s recovery by negating the essential element of causation in
her fraudulent-inducement, common-law-fraud, statutory-fraud, negligent-
misrepresentation, and DTPA claims.
The jury found in favor of Williamson on all of her claims. Most pertinent to
this court’s analysis, the jury found that the Pogues made a material
misrepresentation regarding the property, the Pogues were aware that their
representation was false, the Pogues intended for Williamson to rely on that
misrepresentation in entering their agreement, Williamson in fact relied on that
misrepresentation, and Williamson suffered damages as a result. These findings,
however, do not obviate Williamson’s obligation to supply proof of each element
for each of her causes of action. See Prudential Ins. Co. of Am. v. Jefferson Assocs.,
Ltd., 896 S.W.2d 156, 160 (Tex. 1995). Causation is an element of each of
Williamson’s theories of liability. Id. at 160–61. An enforceable “as is” clause
10
negates causation as a matter of law. Id. at 161. Whether an “as-is” clause is
enforceable is a question of law we review de novo. See id.
In general, a buyer who purchases something “as is” agrees to make her own
appraisal of the property and accept the risk that she may be wrong. Williams v.
Dardenne, 345 S.W.3d 118, 123–24 (Tex. App.—Houston [1st Dist.] 2011, pet.
denied) (citing Prudential, 896 S.W.2d at 161). It is in this way that an “as-is” clause
acts to sever the causal link between the alleged misrepresentation and damages that
is necessary for recovery. Prudential, 896 S.W.2d at 161. When a buyer agrees to
purchase property “as is,” she acknowledges, by her own admission, that she is the
sole cause of any damage that may result from unknown defects in the property. Id.
Williamson agreed when she purchased the property to “accept[] this deed and
purchase[] the . . . property, premises improvements, ‘AS IS.’” She contends,
however, that the “as-is” clause is unenforceable.
A buyer is not bound by an “as-is” clause if she demonstrates that she was
induced to enter the agreement by fraudulent representation or concealment of
information by the seller. Id. at 162. To succeed on this theory, the buyer must show
that the defendant made a material misrepresentation; the defendant was either aware
that the representation was false or that he lacked knowledge of its truth; the
defendant intended for the plaintiff to rely on the misrepresentation; the plaintiff
11
relied on the misrepresentation; and the plaintiff’s reliance caused injury. Int’l Bus.
Mach. Corp. v. Lufkin Indus., LLC, 573 S.W.3d 224, 228 (Tex. 2019).
The jury found that Williamson proved each element of fraudulent
inducement. But the Pogues point out that, under the terms of the deed of trust,
Williamson “acknowledge[d] that [she] is not relying upon any representations,
statements, assertions or non-assertions by the [Pogues] with respect to the Property
condition, but is relying solely on [her own] examination of the Property.” Clauses
like these are known as “disclaimers of reliance.”
In a “disclaimer-of-reliance” clause, a buyer generally agrees that she is
entering the contract relying solely on her own judgment and not on any statement
or representation by the seller. Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d
171, 178–81 (Tex. 1997). And similar to how demonstrating fraudulent inducement
can, as a matter of law, preclude a contract’s “as-is” clause, proof of an enforceable
disclaimer-of-reliance clause can, as a matter of law, preclude a fraudulent-
inducement claim. Lufkin, 573 S.W.3d at 229; Schlumberger, 959 S.W.2d at 181.
The enforceability of this disclaimer-of-reliance provision is a question of law.
Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333
(Tex. 2011) (citing Schlumberger, 959 S.W.2d at 181). And it is dispositive.
In determining whether a disclaimer-of-reliance clause is enforceable, we
consider the totality of the circumstances and whether (1) the disclaimer language is
12
clear; (2) the terms of the agreement were negotiated, rather than boilerplate; (3) the
contract was the product of an arm’s-length transaction; (4) the complaining party
was represented by counsel; and (5) the parties were knowledgeable in business.
Lufkin, 573 S.W.3d at 229 (citing Italian Cowboy, 341 S.W.3d at 337 n.8, and Forest
Oil Corp. v. McAllen, 268 S.W.3d 51, 60 (Tex. 2008)).
Clarity
We begin by looking to the contract’s language and ask whether the
disclaimer-of-reliance language is clear. It is. In unambiguous, plain language,
Williamson agreed that she was “not relying upon any representations, statements,
assertions or non-assertions by the [Pogues] with respect to the Property condition,
but [was] relying solely upon [her own] examination of the property.” At trial,
Williamson maintained that the Pogues misrepresented the property’s condition in
the seller’s disclosure and that she detrimentally relied on that misrepresentation.3
This clause, however, says the exact opposite. The first factor weighs in favor of
enforcing the disclaimer.
Negotiation
3
Williamson does not argue that the disclaimer-of-reliance clause is limited by
its terms to exclude representations regarding the value of the property. See
Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 58–59 (Tex. 2008) (rejecting
argument, based on plain language of contract, that disclaimer pertained only
to certain representations and not others).
13
We next look to whether the terms of the agreement were negotiated, as
opposed to boilerplate. This factor is neither a requirement that every sentence in a
contract be negotiated nor a requirement that the parties negotiated the disclaimer-
of-reliance clause. Lufkin, 573 S.W.3d at 237 n.4. Rather, this factor simply
addresses whether the parties negotiated parts of the contract. See id. (“Lufkin
acknowledges that it negotiated ‘certain deal points,’ and it does not contend that it
could not have negotiated the disclaimers if it had wanted to.”). When there is proof
that the parties specifically contemplated the issue that has become the topic of
dispute, courts should be particularly reluctant to hold a disclaimer-of-reliance
clause unenforceable. See Forest Oil, 268 S.W.3d at 58.
Although there is no evidence that the parties negotiated the condition of the
property, Williamson testified that she did negotiate with the Pogues over price and
other terms that she could not remember. Other evidence of negotiations includes
the fact that the agreement evolved over the course of their discussions. For example,
Williamson requested special terms under which the Pogues would finance $210,000
of the purchase price. Additionally, a number of provisions in the deed of trust
appear in different font size and typeface, including the disclaimer-of-reliance
clause, which suggests that this was not a boilerplate contract but a contract that was
specifically tailored to the parties’ desires. This factor weighs in favor of
enforcement.
14
Representation by counsel
The next factor considers whether the plaintiff was represented by counsel.
Here, both the Pogues and Williamson were unrepresented. Both agreed, however,
to have an attorney draft the documents and have a real-estate broker act as
intermediary between the two. Williamson was free to hire her own attorney, but she
elected not to hire one. Williamson was told that she could contact the drafting
attorney or the real-estate broker with questions concerning the contract, and she did
on a number of occasions. Thus, although Williamson was not represented by
counsel, neither does the record demonstrate a disparity in representation between
the parties. See Lufkin, 573 S.W.3d at 229 (observing that parties “were both
knowledgeable in business matters and represented by counsel” in analyzing
enforceability of disclaimer of reliance). This factor, therefore, is neutral or does not
weigh strongly against enforcing the disclaimer.
Arm’s-length transaction
We also consider whether the contract was the product of an arm’s-length
transaction. The caselaw does not appear to offer a clear definition for “an arm’s
length transaction.” Black’s Law Dictionary, however, defines “arm’s length” as
follows: “Of or relating to dealings between two parties who are not related or not
on close terms and who are presumed to have roughly equal bargaining power; not
involved a confidential relationship.” Arm’s-length, BLACK’S LAW DICTIONARY (9th
15
ed. 2009).4 And the caselaw suggests that this definition accurately reflects the
concern this factor aims to address. See Schlumberger, 959 S.W.2d at 175–177
(rejecting plaintiff’s argument that contract was not product of arm’s-length
transaction by examining whether fiduciary, confidential, partnership, or other
special relationship existed between parties). No special relationship between the
Pogues and Williamson was alleged or existed. Williamson did, however, state that
she knew Mr. Pogue because he frequently purchased feed from the store where she
had worked. That one contracting party knows the other from customer-employee
interactions at a retail establishment cannot be interpreted as evincing a special
relationship between the two. See id. This sale was an arm’s-length transaction, and
this factor, therefore, weighs in favor of enforcing the disclaimer.
Business knowledge
We consider next whether the parties were knowledgeable in the business
matter at hand. This factor is aimed at identifying those transactions in which one
party exploits the other’s inexperience. See Bynum v. Prudential Residential Servs.,
Ltd, 129 S.W.3d 781, 789 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).
Williamson’s arguments are framed to suggest that she was working through this
4
See also Arm’s-length transaction, BLACK’S LAW DICTIONARY (9th ed. 2009)
(“A transaction between two unrelated and unaffiliated parties. A transaction
between two parties, however closely related they may be, conducted as if the
parties were strangers, so that no conflict of interest arises.”).
16
transaction alone, but that is not true. Working with a real-estate agent will show
some business knowledge. Id. (concluding that plaintiff home buyer was not “so
unsophisticated that enforcing the provisions would be unfair” because plaintiff did
not work alone but with licensed real-estate broker). Williamson testified that Gina
Jones, the listing agent, represented her and the Pogues. Williamson explained that,
after “[she] decided to make the offer,” she worked with Jones to put together a non-
standard offer to purchase the property at a reduced price with a wrap-note and a
two-year balloon payment. She also explained that, when she was confused or had
questions, she would reach out to either Jones or attorney Heinlein. Throughout the
entirety of the negotiations, Williamson was involved, asking questions, seeking
information, and working with the real-estate agent. She was a knowledgeable,
involved party. See Dresser-Rand Co. v. Bolick, No. 14-12-00192-CV, 2013 WL
3770950 at *10 (Tex. App.—Houston [14th Dist.] July 18, 2013, pet. denied) (mem.
op.).
Further, while Williamson maintains that she is completely unfamiliar with
real-estate transactions as evidenced by the fact that she is a first-time home buyer,
the claim is belied by the fact that, shortly before purchasing the Pogues’ property,
she sold three-and-a-half acres of her own property in Crosby. What is more,
Williamson was obviously aware of the “as-is” and “disclaimer-of-reliance”
provision because she asked Jones about it, who told her it was “standard
17
contracting.” Williamson’s acknowledging that she read the provision beforehand is
significant because “every person [with legal] capacity . . . is held to know what
words were used in the contract, to know their meaning, and to understand their legal
effect.” See Amouri v. Southwest Toyota, Inc., 20 S.W.3d 165, 169 (Tex. App.—
Texarkana 2000, pet. denied); see also Bynum, 129 S.W.3d at 789 (“A party who,
before entering into a contract, has actual knowledge of terms that he later complains
of, is not entitled to escape enforcement of those terms on the ground that the terms
are inconspicuous.”). Because Williamson was knowledgeable in this transaction,
the final factor weighs in favor of enforcement.
Totality of the circumstances
The foregoing factors are not exclusive. See Forest Oil, 268 S.W.3d at 60. We
must also look at the totality of the circumstances. Id. One additional circumstance
relevant here is whether the seller interfered with the buyer’s attempt to inspect the
property. See Prudential, 896 S.W.2d at 162. There is no allegation that the Pogues
interfered or otherwise impaired Williamsons’ ability to inspect the property. In fact,
the evidence is just the opposite.
The sales agreement states, “[The Pogues] shall permit [Williamson] and [her]
agents access to the Property at reasonable times. [Williamson] may have the
Property inspected by inspectors selected by [her] . . . .” Williamson conducted two
walkthroughs with her then fiancé and now husband before closing. During these
18
walkthroughs, Williamson noted that the property was in disarray; the garage was
full of debris, the yard was overgrown, there were still belongings in the house, the
pool was pitch black, the carpet in the home “was really disgusting and gross,” and
the home had a musty odor. Further, before closing, when Williamson tried to obtain
property insurance, her insurance company told her that a wind claim had been made
on the property. Williamson then tried to find out more about the claim, and the
Pogues and the drafting attorney informed her only that, after Hurricane Ike, the
Pogues had replaced the roof. Despite her observations during her walkthroughs and
her dissatisfaction with the information the Pogues had provided on the insurance
claim, she elected not to have the property professionally inspected. She stated to
Heinlein, “[A]fter due diligence, [I am going to] refrain from . . . “[h]aving a termite
inspection and/or otherwise having experts inspect the premises and/or appliances.”
Instead, Williamson signed the sales agreement and checked a box that read, “Buyer
accepts the Property in its present condition.” These circumstances weigh in favor
of enforcing the disclaimer-of-reliance clause.
Additionally, although Williamson was not represented by an attorney,
nothing in the circumstances of this transaction prevented her from hiring one or
otherwise fully investigating concerns that arose during her inspections of the
property. In a letter to both the Pogues and Williamson, the attorney who drafted the
contract documents asked both parties to acknowledge that she was making no
19
representations regarding the title and that her sole role was to draft the contract
documents. She asked both parties to sign and confirm that they understood this role.
Notably, right above Williamson’s signature, the letter reads: “[Williamson]
understands that [she] ha[s] the right to be represented by an attorney and to have
such other attorney present at closing.” And right above Williamson’s signature in
the sales agreement, a clause reads: “CONSULT AN ATTORNEY: Real estate
licensees cannot give legal advice. READ THIS CONTRACT CAREFULLY. If you
do not understand the effect of this contract consult an attorney BEFORE signing.”
Despite these notices, Williamson chose not to hire an attorney. This is a relevant
circumstance that weighs in favor of enforcing the agreement.
* * *
After reviewing the totality of the circumstances and determining that the
factors identified in Lufkin Industries and Forest Oil weigh in the Pogues’ favor, we
conclude that the disclaimer-of-reliance clause is enforceable, meaning Williamson
was precluded from proving fraudulent inducement, and therefore the clear and
unambiguous “as-is” clause is valid and negates the element of causation necessary
to each of her claims. Accordingly, the trial court erred by rendering judgment in
favor of Williamson.
II. The Pogues’ deed of trust
20
The Pogues maintain that the trial court erroneously extinguished the deed-
of-trust lien granted by Williamson to secure her indebtedness to the Pogues.
Specifically, the relevant order reads:
[A] Permanent Mandatory Injunction is hereby issued against
Defendants Leslie R. Pogue and Jeannette I. Pogue, and their agents,
servants, representatives, employees, independent contractors, officers,
directors, partners, successors and assigns, who are permanently
ENJOINED from and ORDERED to refrain from foreclosing upon the
secondary lien filed on 901 Indian Shores Road, Crosby, Texas 77532,
contained within the Deed of Trust Security Agreement-Financing
Statement, 20100443760, filed in the Harris County Real Property
Records on October 15 2010, as that lien has been extinguished or
released.
It appears the trial court extinguished the deed because the Pogues abandoned
their breach-of-contract counterclaims and, alternatively, because the statute of
limitations by which time the Pogues could sue on the deed had expired. Both
reasons rest on legal errors.
There are two ways a lien can be foreclosed: judicial foreclosure and non-
judicial foreclosure. TEX. CIV. PRAC. & REM. CODE § 16.035(a–b). Judicial
foreclosure occurs where one successfully sues for recovery of real property under
a real-property lien. Id. at (a). Non-judicial foreclosure occurs where one sells real
property under a power of sale that was created by a mortgage or deed of trust. Id.
at (b). A party seeking to foreclose under either method must do so no later than four
years after the day the cause of action accrues. Id. at (a–b). Also, merely because one
method is not available to a party does not necessarily mean the other method is
21
similarly unavailable. See Holman St. Baptist Church v. Jefferson, 317 S.W.3d 540,
546–47 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (“The statute of
limitations provides a personal defense that protects the debtor from an action to
collect on the debt after the designated passage of time, but it does not defeat the
right of the lender to utilize the collateral already held.”) (citing Goldfrank, Frank
& Co. v. Young, 64 Tex. 432, 436–39 (1885)). The deed of trust expressly allowed
the Pogues to enforce their claim “otherwise than through the courts”; that is,
through the exercise of a non-judicial power of sale. The trial court’s reasoning that
the Pogues can no longer foreclose by non-judicial means because they cannot
judicially foreclose is erroneous. See id.
We now turn to the second reason for the trial court’s extinguishment of the
Pogues’ deed of trust—because the statute of limitations has expired. As mentioned
above, regardless of whether a lender proceeds to foreclose on property through
judicial or non-judicial means, the lender must do so within four years of the date
the cause of action accrued. TEX. CIV. PRAC. & REM. CODE § 16.035(a–b). Whether
and when accrual occurs is a question of law. Moreno v. Sterling Drug, Inc., 787
S.W.2d 348, 351 (Tex. 1990). When the claim is breach of contract, the claim
accrues when, according to the language of the agreement, facts that authorize the
claimant to seek a judicial remedy come into existence. See Exxon Mobil Corp. v.
Rincones, 520 S.W.3d 572, 591 (Tex. 2017). The Pogues’ breach-of-contract claim
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accrued on September 25, 2012, when Williamson’s balloon payment was due and
she refused to pay it. Roughly a year later, on July 22, 2013, the trial court enjoined
the Pogues from pursuing their non-judicial remedies, and the trial court made this
injunction permanent when it granted Williamson’s request to extinguish the deed-
of-trust lien.
Where “a person is prevented from exercising his legal remedy by the
pendency of legal proceedings, the time during which he is thus prevented should
not be counted against him in determining whether limitations have barred his right.”
Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 157 (Tex. 1991) (quoting Walker
v. Hanes, 570 S.W.2d 534, 540 (Tex. Civ. App.—Corpus Christi 1978, writ ref’d
n.r.e.)). When the trial court issued its injunction preventing the Pogues from
exercising their non-judicial remedies in July of 2013, the statute of limitations was
tolled until such time that the injunction is longer in effect. See id. Because there is
no legal basis for the trial court’s order enjoining the Pogues from exercising their
non-judicial remedies, the order was improper.
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Conclusion
We reverse the judgment of the trial court and render judgment that
Williamson take nothing. We also vacate the order extinguishing the Pogues’ deed-
of-trust lien.
Richard Hightower
Justice
Panel consists of Justices Lloyd, Kelly, and Hightower.
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