Five Hills Investors, LLC v. Fort Hood Homesteads, LLC

• Court: Texas Court of Appeals, 3rd District (Austin)
• Decided: January 8, 2026
• Docket: 03-24-00035-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00035-CV

Five Hills Investors, LLC, Appellant

v.

Fort Hood Homesteads, LLC, Appellee

FROM THE 169TH DISTRICT COURT OF BELL COUNTY NO. 21DCV327732, THE HONORABLE CARI L. STARRITT-BURNETT, JUDGE PRESIDING

M E M O RAN D U M O PI N I O N

Fort Hood Homesteads, LLC, sued Five Hills Investors, LLC, and Daniel J. Curtis,

alleging causes of action for fraud, statutory fraud, and breach of contract relating to a contract for

the sale of real property. Fort Hood filed a motion for partial summary judgment as to its fraud

and statutory fraud claims. The trial court granted the motion, awarding Fort Hood $260,000 in

damages and $12,300 in attorney’s fees against Five Hills. Although it did not mention Fort

Hood’s claims against Daniel J. Curtis or specifically address Fort Hood’s breach-of-contract claim

against Five Hills, the court’s judgment contained language indicating that it was a final,

appealable judgment. Shortly thereafter, Fort Hood nonsuited its claims against Curtis. Five Hills

perfected this appeal, complaining of a lack of conclusive evidence as to both fraud and damages.

Concluding that the record lacks conclusive evidence of fraud and statutory fraud, we will reverse

and remand to the trial court without considering the issue of damages. FACTUAL AND PROCEDURAL BACKGROUND

On July 7, 2021, Five Hills, as buyer, entered into a contract with Curtis and his

former wife to purchase certain real property in Killeen, Texas for the sum of $260,000. The

closing date was listed as “September 07-2021 or before.” On July 12, 2021, Five Hills assigned

all its rights in that contract to Fort Hood. The assignment agreement ended by stating: “Contract

is valid until 08/30/2021.”

On September 8 Curtis contacted Five Hills and requested and agreed to

termination of the contract. On September 10, Five Hills published a “Notice of Buyer’s

Termination of Contract,” which stated:

Buyer notifies Seller that the contract is terminated pursuant to the following: Seller(s) is going through a divorce and spouse is not willing to sell said property. Plus, the seller(s) did not provide seller disclosure form.

Fort Hood objected to the cancellation of the sales contract. The sale did not proceed, and Fort

Hood subsequently filed this suit against Five Hills and Curtis.

Fort Hood filed a motion for partial summary judgment as to its fraud and statutory

fraud claims, asserting that “Defendant Curtis was informed by Defendant Five Hills Investors,

LLC not to close, falsely representing itself as continuing to be the buyer.” It is Five Hills’

representation that it was still the buyer, made in the Notice of Buyer’s Termination of Contract,

that Fort Hood relies on as the basis for its fraud and statutory fraud claims. The trial court granted

the motion, signing a “Final Judgment.” The judgment neither mentioned Fort Hood’s claims

against Curtis nor addressed Fort Hood’s claim for breach of contract. Nonetheless, the judgment

contained sufficient finality language to make it a final, appealable judgment, which the parties do

not contest. Fort Hood later nonsuited its claims against Curtis. Five Hills perfected this appeal.

2 DISCUSSION

The legal standards for reviewing a summary judgment in Texas are

well established:

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In a traditional motion for summary judgment, the movant bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A movant who conclusively negates at least one of the essential elements of a cause of action or conclusively establishes an affirmative defense is entitled to summary judgment. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). Once a movant establishes a right to summary judgment as a matter of law, the burden shifts to the nonmovant to present evidence raising a genuine issue of material fact. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996); Williams v. Bell, 402 S.W.3d 28, 35 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). Summary judgment evidence raises a genuine issue of fact if, in light of the evidence, reasonable and fair-minded jurors could differ in their conclusions. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam).

McMurphy v. Moran, No. 14-23-00543-CV, 2025 WL 1833386, at *3 (Tex. App.—Houston [14th

Dist.] July 3, 2025, no pet.) (mem. op.).

One of the elements of a fraudulent-misrepresentation claim is a material

misrepresentation. Boeing Co. v. Southwest Airlines Pilots Ass’n, 716 S.W.3d 140, 151 n.19 (Tex.

2025). As stated above, Fort Hood relies on Five Hills’ statement that it was the buyer when Five

Hills published a cancellation notice on September 10, 2021. Fort Hood argues that “Defendant

Curtis failed to close the property due to Appellant’s false representations that it continued to be

the buyer and did not wish to close under the contract.” But who the buyer was on September 10

depends on the meaning to be given the statement in the assignment agreement that “Contract is

valid until 08/30/2021.” If the assignment agreement was no longer valid after August 30, then

Five Hills was arguably again the buyer. And if that is the case, Five Hills’ representation on

September 10 that it was the buyer was not a false statement. 3 We need not decide if that is the only reasonable construction that could be given

the referenced statement. We conclude only that such a reading is one reasonable interpretation of

it. And if the statement is deemed to be ambiguous in that regard, such ambiguity would render

its correct interpretation a question of fact: “If the contract is subject to two or more reasonable

interpretations after applying the pertinent rules of construction, . . . the contract is ambiguous,

creating a fact issue on the parties’ intent.” Mosaic Baybrook One, L.P. v. Simien, 674 S.W.3d 234,

257 (Tex. 2023) (quoting ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 874 (Tex. 2018)).

The existence of a material fact issue makes summary judgment improper. J. Hiram Moore, Ltd.

v. Greer, 172 S.W.3d 609, 614 (Tex. 2005) (“Given the deed’s ambiguity, the trial court erred in

granting summary judgment.”).

CONCLUSION

Having concluded that the record evidence does not demonstrate that Fort Hood is

entitled to judgment as a matter of law, we reverse the trial court’s summary judgment and remand

the case to that court for further proceedings.

__________________________________________ J. Woodfin Jones, Justice

Before Justices Theofanis, Ellis, and Jones*

Reversed and Remanded

Filed: January 8, 2026

*Before J. Woodfin Jones, Chief Justice (Ret.), Third Court of Appeals, sitting by assignment. See Tex. Gov’t Code § 74.003(b).