NUMBER 13-23-00517-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ROBERT SEKULA AND JESSICA SEKULA, Appellants,
v.
B&M VACATION PROPERTIES, LLC, Appellee.
ON APPEAL FROM THE 2ND 25TH DISTRICT COURT OF GUADALUPE COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Silva, Peña, and West Memorandum Opinion by Justice West This suit involves damages to a home appellants Robert Sekula and Jessica
Sekula purchased from appellee B&M Vacation Properties, LLC. 1 By three issues which
we reorder and construe as two, the Sekulas argue that the trial court erred when it
granted B&M’s (1) objections to their summary judgment evidence and (2) motion for
summary judgment. Because some of the complained-of evidence was improperly
excluded, we hold that the trial court erred in part when it granted B&M’s objections to the
Sekulas’ evidence. In considering that evidence, we hold that the Sekulas raised a
genuine issue of material fact as to each element of its breach of contract claim, and the
trial court erred when it granted B&M’s motion for summary judgment on that claim. We
affirm in part and reverse and remand in part.
I. BACKGROUND
In March of 2017, the Sekulas purchased a home from B&M. Prior to closing, the
Sekulas hired Your Time Home Inspections (YTHI) to inspect the home and provide a
report. YTHI’s report marked the home’s “[c]ooling [e]quipment” as “deficient.” It stated
that various parts of the HVAC system needed work: the “[e]vaporator coils need[ed]
cleaning,” the “[a]ir handler plenum was not properly sealed,” the “[c]ondensate line
terminates were too close to [the] structure,” “[t]here was debris in the vents,” the
“[c]ondenser unit coil fins [were] damaged/dirty,” and the “[s]ystem showed signs of being
dirty.” The report recommended “that the air conditioner’s primary condensate drain lines
1 This case is before the Court on transfer from the Fourth Court of Appeals pursuant to a docket-
equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. §§ 22.220(a) (delineating the jurisdiction of appellate courts), 73.001 (granting the supreme court the authority to transfer cases from one court of appeals to another at any time that there is “good cause” for the transfer). We are bound by the precedent of the transferring court to the extent that it differs from our own. See TEX. R. APP. P. 41.3. 2 be flushed of bacterial clogs” and “that a licensed HVAC technician inspect, clean[,] and
service the entire climate control system.” The report emphasized that YTHI inspectors
“are not HVAC professionals,” and inspectors “are not required to inspect . . . parts which
are not readily accessible.”
Subsequently, on March 18, 2017, the parties executed an amendment to the
contract that obligated B&M, at its expense, to replace the roof and “[h]ave [the] HVAC
cleaned, serviced, and repaired.” B&M hired Tri Star A/C & Heating to perform the work
on the HVAC system. Tri Star provided B&M with an invoice for work performed on March
20, 2017. The invoice stated: “Service[d] both systems. Checked systems, refrigerant
pressures, evaporator coils & blowers, flushed drain lines and cleaned condensers.” The
Sekulas closed on the purchase of the home on April 20, 2017.
The Sekulas filed their original petition against B&M on April 18, 2019, alleging that
B&M failed to clean, service, and repair the HVAC system prior to closing. 2 Relevant to
this appeal, they asserted claims for (1) breach of contract, (2) “laundry-list” violations of
the Texas Deceptive Trade Practices Act (DTPA), (3) negligent misrepresentation,
(4) common law fraud, and (5) fraud in a real estate transaction. 3 B&M filed an answer
and an amended answer.
No other motions or pleadings were filed until August 8, 2023, when B&M filed a
partial no-evidence and traditional motion for summary judgment. 4 B&M asserted that
2 The Sekulas also sued B&M’s realtor and broker, who are not parties to this appeal.
3 The Sekulas also filed claims against B&M for unconscionable actions and breach of implied
warranties under the DTPA and fraud by nondisclosure. The Sekulas are not challenging the dismissal of these causes of action on appeal. 4 B&M sought summary judgment over all the Sekula’ claims, leaving only the issue of attorney’s
fees to be awarded. 3 “[n]either B&M nor its realtor, Patti McDaniel, had any direction over how Tri-Star
performed its work on the HVAC system.” It argued that the Sekulas failed to prove
“justifiable reliance or causation” as to their claims of fraud, negligent misrepresentation,
and DTPA violations. It also argued that the Sekulas presented no evidence of various
elements of all their claims.
As to its arguments under its traditional motion for summary judgment, B&M
contended that the Sekulas interfered with the performance of the contract which excused
further performance. Attached to B&M’s motion was an email exchange between
McDaniel and Martin Tirado, the Sekulas’ realtor. On June 6, 2017, Tirado wrote,
We only want the HVAC system to perform properly as requested [i]n the contract and have all the servicing completed by either the HVAC company or the seller[’s] expense.
We are not asking for more we just want to have this completed and resolve[d] as soon as possible.
We are going to have a third party HVAC technician inspect the unit to [e]nsure that the work is done properly.
McDaniel responded and asked,
I just want to make sure I understand and clarify what your buyer is wanting. Tri Star is going to come back out and clean the inside coils on both units, because the HVAC company hired to clean and service the units did not clean the inside coils on the original visit, which my seller and I were unaware of. Once that has been completed, you are not asking for any other work to be done or completed.
Tirado responded, “Agreed.” According to Tri Star’s business records, Tri Star made an
appointment with the Sekulas to clean the coils on June 9, 2017, and the Sekulas
cancelled the appointment and never rescheduled.
The Sekulas filed a response which included, among other exhibits, an affidavit by
Mr. Sekula and emails from the Sekulas and the parties’ realtors (Exhibit B). According 4 to Mr. Sekula’s affidavit, on May 18, 2017, Mrs. Sekula “discovered an active water leak
coming through the downstairs ceiling in a small storage room,” and the “leak caused
damage to the [downstairs] ceiling.” The source of the water came from “moisture” from
the downstairs HVAC system. Mr. Sekula called Tri Star to come back to the house to
examine the downstairs HVAC system, and Tri Star employees “Robert,” “Levi,” and
“Stanley Williams” came to the property on May 25, 2017. The affidavit included
incriminating statements from all three Tri Star employees. The Sekulas then hired three
different HVAC companies to inspect the HVAC system, and relying on their quotes, paid
approximately $60,000 to completely replace the HVAC system. Mr. Sekula contended
that he and his wife would not have closed on the house if they knew B&M “failed on their
promise to clean, service, and repair the HVAC system.” His affidavit also included
statements from Tirado’s assistant, “Mark from Cook’s Plumbing,” and the three HVAC
companies “GVEC,” “We Fix lt,” and “Restore It Home Services.”
B&M filed objections to much of the Sekulas’ proffered evidence. It argued that all
the alleged statements from the Tri Star employees and other witnesses were
inadmissible hearsay, and the emails in Exhibit B were all inadmissible hearsay, absent
statements from “[Mr.] Sekula or an agent of B&M.” After a hearing on the motions, the
trial court sustained B&M’s objections and granted B&M’s motion for summary judgment.
In its order, it excluded the following:
• The alleged statements, wherever they appear, of all employees and representatives of Tri Star A/C & Heating except for those statements contained in the business records attached to Exhibit C to [B&M]’s First Amended Motion for Partial Summary judgment.
• The alleged statement, wherever it appears, of Stanley Williams that “oftentimes B&M instructed Tri Star not to perform certain work to
5 HVAC systems that would be more costly to B&M” and any variations of that alleged statement.
• The entirety of Exhibit B to [the Sekulas’] Response to [B&M]’s First Amended Motion for Partial Summary Judgment except for those statements that were made by either [Mr.] Sekula or an agent of [B&M].
• The alleged statements, wherever they appear, of Cook’s Plumbing, GVEC, We Fix It, and Restore It Home Services, or any of their employees or representatives.
This appeal followed.
II. DISCUSSION
The Sekulas argue that the trial court erred when it granted B&M’s objections to
the evidence in the Sekulas’ response and its motion for summary judgment. B&M did not
file an appellate brief. We address these issues together.
A. Standard of Review & Applicable Law
We review the grant or denial of a summary judgment de novo. Scripps NP
Operating, LLC v. Carter, 573 S.W.3d 781, 790 (Tex. 2019). If, as in this case, a party
moves for a no-evidence summary judgment and a traditional summary judgment, we first
review the trial court’s judgment under the no-evidence standard. Ford Motor Co. v.
Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). Under the no-evidence standard, the non-
movant must produce more than a scintilla of probative evidence to raise a genuine issue
of material fact on the challenged element. Id. “Less than a scintilla of evidence exists
when the evidence is ‘so weak as to do no more than create a mere surmise or suspicion’
of a fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting
Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). “More than a scintilla of
evidence exists when the evidence ‘rises to a level that would enable reasonable and fair-
6 minded people to differ in their conclusions.’” Id. (quoting Merrell Dow Pharms., Inc. v.
Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
The burden of producing evidence is entirely on the non-movant; if the non-movant
produces evidence to raise a genuine issue of material fact, summary judgment is
improper. TEX. R. CIV. P. 166a(i). If the non-movant fails to produce more than a scintilla
of evidence under the no-evidence burden, there is no need to analyze whether the
movant’s summary-judgment evidence satisfies the traditional Rule 166a(c) burden. Ford
Motor Co., 135 S.W.3d at 600. We examine the record in the light most favorable to the
non-movant, disregarding all contrary evidence and inferences. King Ranch, Inc., 118
S.W.3d at 751.
To prevail under the traditional summary judgment standard, the movant has the
burden to establish that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a(c); ConocoPhillips Co. v. Koopmann,
547 S.W.3d 858, 865 (Tex. 2018). The defendant must conclusively negate at least one
essential element of each of the plaintiff’s causes of action or conclusively establish each
element of an affirmative defense. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508
(Tex. 2010); Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). If the
movant meets its summary judgment burden, then the burden shifts to the nonmovant to
present to the trial court any issues or evidence that would preclude the grant of summary
judgment. Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511
(Tex. 2014); Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex. 1999). Where, as
here, “the trial court’s order does not specify the grounds for its summary judgment, we
must affirm the summary judgment if any of the theories presented to the trial court and
7 preserved for appellate review are meritorious.” Provident Life & Acc. Ins. Co. v. Knott,
128 S.W.3d 211, 216 (Tex. 2003).
We review evidentiary rulings made in connection with a summary judgment
motion under the abuse of discretion standard. Starwood Mgmt. LLC v. Swaim, 530
S.W.3d 673, 678 (Tex. 2017) (per curiam). A trial court abuses its discretion when it acts
“without any guiding rules or principles.” Id. (quoting Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)).
B. Evidentiary Objections
The trial court excluded much of the evidence attached to the Sekulas’ response
to B&M’s motion for summary judgment, but the Sekulas only challenge on appeal the
exclusion of the statements by Tri Star employees Robert, Levi, and Williams. The
following are the excluded statements as they appear in Mr. Sekula’s affidavit:
I told [Robert and Levi] that air leaks were identified during the home inspection and that there was evidence of damage done by unknown rodents and pests. Robert and Levi confirmed this to me through their visual inspection. Robert and Levi applied a sealant to the interior of the duct system to help mitigate the air leaks and replaced foam insulation on a section of copper line. . . .
Robert and Levi informed me that they had performed the work at the Property on the HVAC system on March 20. Robert and Levi told me that, while they were attempting to service the downstairs system, they were being “eaten alive” by fleas[,] and they told me that they did not do any work on [the] downstairs HVAC system inside. I asked them directly if they cleaned the interior condensing coils in the system. Tri Star’s Robert and Levi admitted to me that they did not clean the interior coils. They stated that they had only cleaned the evaporator coils in the outside compressor unit.
Robert and Levi then (on the May 25 visit) confirmed that the drip pan was completely dry and they were not sure what the issue might be causing the moisture in the ceiling and walls, but that they suspected the drain line might be damaged or clogged. . . . Robert and Levi told me that
8 their supervisor [Williams] would need to come out to examine the system with his expertise for a more proper diagnosis of the issues involved with the system. This indicated to me that Tri Star did not evaluate the HVAC system on the March 20 in order to determine what needed to be serviced or repaired on that date.
Also on that same day (May 25), . . . . [Williams] arrived from Tri Star to evaluate and diagnose the problems regarding the downstairs HVAC system. [Williams] looked over the system thoroughly and showed me where animals had damaged and destroyed duct work and had nested and defecated in the main air duct. The damage had not been repaired[,] and the animal droppings had not been cleaned from the ducts on March 20.
[Williams] commented to me that he suspected that the copper line running to the exterior of the house needed to be re-insulated, and that the drain line from the unit might be clogged. He stated that the drain line was visibly damaged and broken. He also told me that the interior condensing coils were extremely dirty and that Tri Star had not cleaned them. [Williams] said that the dirty coils could be exacerbating the moisture problem and that the entire system would need to be pulled out in order to properly clean and repair it. He also recommended that the air ducts be completely replaced not only for proper functionality but for health reasons. . . .
[Williams] told me that he had done the original inst[a]llation of the HVAC systems at the Property many years ago. He further told me that he had a lot of personal knowledge through previous business dealings with B&M and B&M’s agents. [Williams] told me that oftentimes B&M instructed Tri Star not to perform certain work to HVAC systems that would be more costly to B&M.
The Sekulas argue that the Tri Star employees’ statements are admissible under
Rule 803(24), the “statements against interest” exception. See TEX. R. EVID. 803(24)(A).
The Rule provides that a statement is not excluded by the general rule against hearsay if
it is a statement that
a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability or to make the declarant an object of hatred, ridicule, or disgrace[.]
9 Id. This exception “is founded on the principle that the ramifications of making a statement
is so contrary to the declarant’s interest that he would not make the statement unless it
was true.” Robinson v. Harkins & Co., 711 S.W.2d 619, 621 (Tex. 1986). “There are three
general interests considered under the rule: pecuniary, penal, and social.” Id. “Thus, while
a particular statement may be self-serving in one respect, it may simultaneously be
contrary to another interest.” Id. “Admissibility, then, necessarily requires a weighing and
balancing of competing interests.” Id.; see Beebe v. City of San Antonio ex rel. CPS
Energy, 673 S.W.3d 691, 702 (Tex. App.—San Antonio 2023, pet. denied) (citing
Robinson, 711 S.W.2d at 621).
According to Mr. Sekula’s affidavit, the Tri Star employees made statements that
directly contradicted the March 20, 2017 invoice. The invoice stated that Tri Star
“[s]ervice[d] both systems,” “[c]hecked systems, refrigerant pressures, evaporator coils &
blowers,” “flushed drain lines,” and “cleaned condensers.” Robert and Levi allegedly
admitted that they did not service or check the downstairs HVAC system and had not
cleared or “flushed” the drain line. Williams stated that Tri Star had not cleaned or cleared
the downstairs HVAC system’s “interior condensing coils.” Robert, Levi, and Williams also
discussed obvious issues with the downstairs HVAC system with Mr. Sekula, including
that the system was infested with fleas, animal feces were in the air ducts, and “the drain
line was visibly damaged and broken.”
These statements by Robert, Levi, and Williams go against Tri Star’s pecuniary
and social interests. By admitting that Tri Star failed to service and clean the downstairs
HVAC system and flush the drain line, Tri Star subjected itself to potential liability from
the Sekulas, and potentially, B&M. See Robinson, 711 S.W.2d at 621 (“By admitting to
10 be the driver, Jerry subjected himself to potential liability for negligence, which is against
his pecuniary interest.”); see also Keeney v. Williams, No. 07-19-00374-CV, 2020 WL
5267568, at *4 (Tex. App.—Amarillo Sept. 3, 2020, no pet.) (mem. op.) (holding that trial
court did not abuse its discretion in admitting hearsay statements because the statements
fell under 803(24) as they were “clearly against [the declarant’s] ownership interest”);
McCurry v. Farmer, No. 06-17-00052-CV, 2017 WL 5907712, at *4 (Tex. App.—
Texarkana Dec. 1, 2017, no pet.) (mem. op.) (same, where declarant’s “statements were
contrary to his proprietary and pecuniary interests” and “tended to confirm” the oral
agreement at issue). Tri Star also potentially engaged in fraudulent behavior by admitting
it did not perform the work it represented in the March 20 invoice, which not only could
subject it to liability but could lead to revocation of its state-issued HVAC license.
However, Williams’ statement that “oftentimes B&M instructed Tri Star not to
perform certain work to HVAC systems that would be more costly to B&M” does not fall
under the hearsay exception because it does not go against Tri Star’s interests. See TEX.
R. EVID. 803(24)(A) (stating that the rule applies when the declarant’s statement is “so
contrary to the declarant’s proprietary or pecuniary interest”). The Sekulas contend that
the statement goes against B&M’s interest because it “explains why Tri Star would . . . fail
to properly service the HVAC system and then provide an invoice inaccurately
representing that the HVAC system was indeed serviced.” However, the Sekulas fail to
explain how this statement goes against Tri Star’s interests. See id.; see also City of
Whitesboro v. Montgomery, No. 05-23-00979-CV, 2024 WL 3880627, at *5 (Tex. App.—
Dallas Aug. 20, 2024, no pet.) (mem. op.) (holding that the alleged statements did not fall
under Rule 803(24) in part because the declarant “had no proprietary interest in the
11 facilities [at issue], and was not employed by the City”). In fact, as the Sekulas concede,
Williams’ statement is favorable to Tri Star’s interests because his statement indicates
that Tri Star and its employees were not negligent—rather, they were performing the work
as B&M instructed it to. See Robinson, 711 S.W.2d at 621; Urquhart v. Antrum, 776
S.W.2d 595, 597 (Tex. App.—Houston [14th Dist.] 1988, no writ) (holding that statement
did not fall under Rule 803(24) exception because “the overriding thrust of [the
declarant’s] statement [wa]s exculpatory because it . . . shift[ed] blame for the accident”
away from the declarant); see also Milam v. Dir., TDCJ-CID, No. 4:13-CV-545, 2017 WL
3537272, at *18 (E.D. Tex. Aug. 16, 2017) (mem. op.) (providing that, generally,
statements against interest which shift blame from the declarant to another are not
admissible under the rule).
In sum, we hold that the trial court erred when it excluded the alleged statements
in Mr. Sekula’s affidavit by Tri Star employees Robert, Levi, and Williams about the overall
condition of the HVAC system and the work they did not perform on the downstairs HVAC
system because these statements fall under Rule 803(24). See TEX. R. EVID. 803(24)(A);
Robinson, 711 S.W.2d at 621; see also City of Whitesboro, 2024 WL 3880627, at *5;
Keeney, 2020 WL 5267568, at *4; McCurry, 2017 WL 5907712, at *4. We hold that the
trial court did not err when it excluded Williams’ statement that “oftentimes B&M instructed
Tri Star not to perform certain work to HVAC systems that would be more costly to B&M”
because it does not fall under Rule 803(24). See TEX. R. EVID. 803(24)(A); Robinson, 711
S.W.2d at 621; Urquhart, 776 S.W.2d at 597; see also Milam, 2017 WL 3537272, at *18.
We sustain the Sekulas’ first issue in part.
12 C. Summary Judgment
The Sekulas sued B&M for (1) breach of contract, (2) “laundry list” violations under
the Texas Deceptive Trade Practices Act (DTPA), (3) negligent misrepresentation,
(4) common law fraud, and (5) fraud in a real estate transaction.
i. Breach of Contract
To prevail on a cause of action for breach of contract, the plaintiff must prove: “(1) a
valid contract exists; (2) the plaintiff performed or tendered performance as contractually
required; (3) the defendant breached the contract by failing to perform or tender
performance as contractually required; and (4) the plaintiff sustained damages due to the
breach.” Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd., 574 S.W.3d 882, 890 (Tex.
2019). It is undisputed that the parties entered into a valid contract, and the contract
included an amendment that required B&M, at its own expense, to clean, service, and
repair the HVAC system. The Sekulas performed under the contract by purchasing the
home. Above, admissions from the three Tri Star employees indicate that it did not clean,
service, or repair the downstairs HVAC system prior to closing. At the trial level, B&M did
not dispute the evidence that the Sekulas paid $60,000 to replace the home’s HVAC
system. Looking at the evidence in the light most favorable to the Sekulas, as we must,
King Ranch, Inc., 118 S.W.3d at 751, we hold that they produced more than a scintilla of
evidence of each element of their breach of contract claim. We conclude that the trial
court erred when it granted B&M’s no-evidence motion for summary judgment as to the
Sekulas’ breach of contract claim.
In its traditional motion for summary judgment, B&M argued that it was excused
from further performance under the contract. Relying on SP Terrace, L.P. v. Meritage
13 Homes of Tex., LLC, B&M argued that courts generally “imply a duty to cooperate to the
extent necessary for the contract’s performance,” and the Sekulas violated that duty and
interfered with B&M’s performance by preventing Tri Star from returning to the property.
334 S.W.3d 275, 286 (Tex. App.—Houston [1st Dist.] 2010, no pet.). B&M presented
evidence—which the Sekulas do not dispute—that the Sekulas’ realtor agreed to have
Tri Star come back out to the property to “clean the inside coils on both units,” and the
Sekulas cancelled that appointment.
However, that same evidence also shows that the Sekulas requested that the
HVAC system “perform properly as requested [i]n the contract,” that “all the servicing [be]
completed by either the HVAC company or [B&M’s] expense,” and that the Sekulas were
“going to have a third[-]party HVAC technician inspect the unit to [e]nsure that the work
is done properly.” Once the Sekulas hired third-party HVAC companies to assess the
HVAC system, they determined that the HVAC system needed to be completely replaced.
Clearly, the HVAC system would not be fixed by simply cleaning the interior coils of the
downstairs HVAC system. Moreover, the Sekulas presented evidence that B&M breached
the contract by failing to clean, service, and repair the HVAC system before closing. While
some evidence may suggest that the Sekulas hindered B&M’s performance, other
evidence indicates that B&M materially breached the contract and the Sekulas are merely
attempting to enforce specific performance under the contract.
We agree with the Sekulas that the evidence presented raises a genuine issue of
material fact concerning whether the Sekulas interfered with B&M’s performance of the
contract and whether further performance by B&M was excused. We conclude that the
14 trial court erred when it granted traditional motion for summary judgment as to the
Sekulas’ breach of contract claim. We sustain this sub-issue. 5
ii. DTPA, Fraud, and Negligent Misrepresentation Claims
Next, the Sekulas alleged that B&M engaged in false, misleading or deceptive acts
in violation of the DTPA. Generally, to establish a cause of action under the DTPA, the
plaintiff must establish that:
(1) the plaintiff is a consumer;
(2) the defendant engaged in false, misleading, or deceptive acts (i.e., violated a specific laundry-list provision of the DTPA); and
(3) the deceptive act or laundry-list violation was a producing cause of the plaintiff’s injury.
Doe v. Boys Clubs of Greater Dall., Inc., 907 S.W.2d 472, 478 (Tex. 1995); see TEX. BUS.
& COM. CODE ANN. § 17.46(b). In its no-evidence motion for summary judgment, B&M
argued that the Sekulas failed to produce more than a scintilla of evidence of the second
and third elements.
The Sekulas contend that they produced more than a scintilla of evidence showing
that B&M engaged in a false, misleading or deceptive act in violation of § 17.46 of the
DTPA because B&M misrepresented the work performed on the home’s HVAC system.
The Sekulas rely on the Tri Star March 20 invoice, and the following evidence to support
their argument:
• A memo from Williams that states:
5 B&M generally argued in its motion for summary judgment that it had no control over Tri Star’s
work on the HVAC system. However, “[g]enerally speaking, a party cannot escape its obligations under a contract merely by assigning the contract to a third party.” Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 346–47 (Tex. 2006). 15 Tri Star A/C was called out to [the property] on March 20, 2017 to service two A/C systems to included [sic] checking refrigerant pressure (okay), checked evaporator coils (Tech said didn’t think they needed to be cleaned at that day), cleared drain lines and cleaned outside condenser coils. . . . No damage was done from coils, but we have agreed to clean both evaporator coils for a reduced price
• An email from McDaniels email to Tirado that states:
Tri Star is going to come back out and clean the inside coils on both units, because the HVAC company hired to clean and service the units did not clean the inside coils on the original visit,[ 6] which my seller or I were not aware of.
The Sekulas argue that this evidence amounts to “more than a scintilla of evidence
showing an actionable DTPA misrepresentation.” The Sekulas provide no authority for
their argument.
In the seller’s disclosure notice, B&M indicated that it had no knowledge of the
condition of the HVAC system. It was only after the Sekulas hired YTHI to inspect the
home that the parties entered into an agreement to have B&M clean, service, and repair
the HVAC system. B&M presented sworn declarations from its representative, Daryl
Mason, that he had never been on the property, and he had no knowledge of the HVAC
system’s condition. B&M also presented emails from McDaniels wherein she stated that
she and B&M did not know that Tri Star had not completed the work described in the
March 20 invoice.
Despite the Sekulas’ arguments, the record contains no evidence, direct or
circumstantial, that B&M knew Tri Star did not service the downstairs HVAC system prior
6 “[T]he HVAC company hired to clean and service the units did not clean the inside coils on the
original visit” was also Tri Star. 16 to closing. Instead, the record shows that, like the Sekulas, B&M relied on Tri Star’s
representations of their work on the HVAC system to satisfy their obligations under the
contract. Here, the most misleading statement that B&M is accused of making is that it
fulfilled its end of the contract. This by itself is insufficient to show actionable
misrepresentation under the DTPA. See Cont’l Dredging, Inc. v. De-Kaizered, Inc., 120
S.W.3d 380, 390 (Tex. App.—Texarkana 2003, pet. denied) (“The most misleading
statement Continental is accused of making is that the contract had been completed when
it allegedly had not been. As such, Continental’s misrepresentations gave rise only to a
breach of contract, not a DTPA violation . . . .”); Head v. U.S. Inspect DFW, Inc., 159
S.W.3d 731, 742–43 (Tex. App.—Fort Worth 2005, no pet.); Prudential Ins. Co. of Am. v.
Jefferson Assocs., Ltd., 896 S.W.2d 156, 162 (Tex. 1995) (“Even under the DTPA, a seller
is not liable for failing to disclose information he did not actually know.”); see also Dura-
Wood Treating Co. v. Century Forest Indus., Inc., 675 F.2d 745, 756 (5th Cir. 1982) (“[A]n
allegation of breach of contract—without more—does not constitute a false, misleading,
or deceptive action such as would violate [§] 17.46 of the DTPA.”).
Relying on the same evidence, the Sekulas argue that they produced more than a
scintilla of evidence on each element of their claims for negligent misrepresentation,
common law fraud, and fraud in a real estate transaction. Like their DTPA claim, these
causes require an element that the defendant knew the information or representation was
false. See Willis v. Marshall, 401 S.W.3d 689, 698 (Tex. App.—El Paso 2013, no pet.)
(providing elements of negligent misrepresentation); Nooner Holdings, Ltd. v. Abilene
Vill., LLC, 668 S.W.3d 956, 963 (Tex. App.—Eastland 2023, pet. denied) (providing
elements of common law fraud and statutory fraud claim based on a real estate
17 transaction). Again, the record contains no evidence that B&M knew Tri Star did not
properly service the downstairs HVAC system prior to closing, and the Sekulas provide
no authority as to how B&M’s actions could amount to actionable misrepresentation under
these causes of actions. See Prudential Ins. Co. of Am., 896 S.W.2d at 163 (“A statement
is not fraudulent unless the maker knew it was false when he made it or made it recklessly
without knowledge of the truth.”). We overrule these sub-issues.
In sum, we hold that the trial court erred in granting B&M’s motion for summary
judgment as to the Sekulas’ breach of contract claim only. Accordingly, we sustain the
Sekulas’ second issue in part. 7
III. CONCLUSION
We hold that the trial court erred in part when it excluded material statements from
the Sekulas’ evidence from three Tri Star employees related to the work (or lack of work)
performed on the home’s HVAC system. Considering this evidence creates a genuine
issue of material fact as to the Sekulas’ breach of contract claim, and we reverse and
remand the trial court’s order granting B&M’s motion for summary judgment as to that
claim only. We affirm the trial court’s judgment in all other respects.
JON WEST Justice
Delivered and filed on the 11th day of December, 2025.
7 The Sekulas include “[i]ntentional and knowing violations of the DTPA” as a sixth cause of action.
They do not explain how “intentional and knowing behavior” under the DTPA is a separate cause of action from their other DTPA claim. Instead, they argue that in the event we find that the trial court improperly excluded the statements made by Tri Star employees, Robert, Levi, and Williams, then they produced “more than a scintilla of evidence that [B&M]’s actions in this case were intentional and knowing.” Because we held that, even with the included statements from Tri Star, the Sekulas failed to produce more than a scintilla of evidence showing that B&M engaged in a false, misleading or deceptive act in violation of § 17.46 of the DTPA, we overrule this issue. 18