Stacey Scott v. Larry Furrow and Keller Williams Legacy Group
Opinion
ACCEPTED 04-15-00074-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 12/1/2015 5:28:25 PM KEITH HOTTLE CLERK
CAUSE NO. 04-15-00074-CV
FILED IN 4th COURT OF APPEALS IN THE COURT OF APPEALS FOR THE FOURTHSAN COURT ANTONIO, TEXAS OF APPEALS DISTRICT OF TEXAS, SAN ANTONIO, TEXAS 12/01/15 5:28:25 PM KEITH E. HOTTLE Clerk
STACEY SCOTT, Appellant
vs.
LARRY FURROW AND KELLER WILLIAMS LEGACY GROUP, Appellees
ON APPEAL FROM THE 25™ JUDICIAL DISTRICT COURT OF GUADALUPE COUNTY, TEXAS CAUSE NO. 13-1125-CV-A
BRIEF OF APPELLEES
THORNTON, BIECHLIN, REYNOLDS & GUERRA, L.C. Vaughan E. Waters State Bar No. 20916700 100 N.E. Loop 410, Suite 500 San Antonio, Texas 78216 210-342-5555; 210-525-0666 (fax) ATTORNEYS FOR APPELLEES
ORAL ARGUMENT REQUESTED NAMES OF THE PARTIES
Pursuant to and in compliance with Rule 38, Tex. R. App. P., the parties to this appeal are:
STACEY SCOTT, Appellant
COUNSEL FOR APPELLANT: ANDREWS KURTH LLP Mr. Frederick Junkin State Bar No. 11058030 600 Travis St., Suite 4200 Houston, TX 77002 713/220-4766; 713/238-7387 (fax) frediunkm(%andrewskurth.com
LARRY FURROW AND KELLER WILLIAMS LEGACY GROUP, Appellees
COUNSEL FORAPPELLEES: THORNTON, BIECHLIN, REYNOLDS & GUERRA, L.C. Mr. Vaughan E. Waters State Bar No. 20916700 100 N.E. Loop 410, Suite 500 San Antonio, Texas 78216 210/342-5555; 210/525-0666 (fax) vwaters(2)thomtonfirm. corn
TRIAL COURT JUDGE: The Honorable W.C. Kirkendall 25th Judicial District Court Guadalupe County, Texas
(i) REQUEST FOR ORAL ARGUMENT
Pursuant to Rule 39, Tex. R. App. P., Appellees respectfully request oral argument in this case.
(ii) TABLE OF CONTENTS
Page
NAMES OF THE PARTIES ......................................... (i)
REQUEST FOR ORAL ARGUMENT ................................ (ii)
TABLE OF CONTENTS .......................................... (iii)
LIST OF AUTHORITIES .......................................... (iv)
I. STATEMENT OF THE CASE ................................... 2
II. ISSUES PRESENTED ................................. ...... 2
(1) ISSUE NO. 1: THE TRIAL COURT ACTED CORRECTLY IN GRANTING SUMMARY JUDGMENTFORAPPELLEES ONTHE CLAIMS AND CAUSES OF ACTION ASSERTED BY SCOTT (Responsive to Appellant's Issue Nos. 1 and 2) (2) ISSUE NO. 2: SCOTT RA.S FAILED TO PRESERVE ERROR AS TO THE TRIAL COURT'S GRANT OF SUMMARY JUDGMENT IN FAVOR OF APPELLEES ON THEIR COUNTERCLAIM FOR ATTORNEY'S FEES (Responsive to Appellant's Issue Nos. 3 and 4)
III. STATEMENT OF FACTS ...................................... 3
IV. SUMMARY OF THE ARGUMENT ............................. 15
V. ARGUMENT AND AUTHORITIES ............................. 16
PRAYER ........................................................ 36
(ill) CERTIFICATE OF COMPLIANCE ................................... 37
CERTIFICATE OF SERVICE ....................................... 37
(iv) LIST OF AUTHORITIES
CASES PAGE
Cantu v. Preacher, 53 S.W.3d 5 (Tex. App.-San Antonio 2001, pet. denied) ...................................................... 29
Estate ofJobe v. Berry, 428 S.W.3d 888, 902 (Tex. App.-Texarkana 2014, no pet.) .................................. 26
Exxon Mobil Chemical Company v. Ford, 187 S.W.3d 154 (Tex. App.-Beaumont 2006), reversed in part on other grounds, 235 S.W.3d 615 (Tex. 2007) ........................................ 20
Farroux v. Denny's Restaurants, Inc., 962 S.W.2d 108 (Tex. App.-Houston [1st Dist.] 1997, no pet.) .............. 12
Ford v. Exxon Mobil Chemical Company, 235 S.W.Sd 615, 616 (Tex.2007) ...................................................... 23
HECI Exploration Company v. Neel, 982 S.W.2d 881, 887 (Tex. 1998). ..... 20
Isaacs v. Schleier, 356 S.W.3d 548,562 (Tex. App.-Texarkana 2011, pet. denied) ............................... 26
Lesieur v. Fryar, 325 S.W.3d 242 (Tex. App.-San Antonio 2010,pet. denied) ................................................. 34
Marker v. Garcia, 185 S.W.3d21 (Tex. App.-San Antonio 2005, no pet.)................................. 34
NRC, Inc. v. Pickhardt, 667 S.W.2d 292 (Tex. App.-Texarkana 1984, writ refd n.r.e.) .............................................. 18
Ojeda de Toca v. Wise, 748 S.W.2d 449 (Tex. 1988) ..................... 17
Salinas v. Gary Pools, Inc., 31 S.W.3d 333
(V) (Tex. App.-San Antonio 2000, no pet.)................................. 24
Santiago v. NovaStar Mortgage, Inc., 443 S.W.Sd 462, 471 (Tex. App.-Dallas 2014, pet. denied) .................................. 20
Sherman v. Sipper, 137 Tex. 85, 152 S.W.2d 319, 320-321 (1941) .......... 22
Southwest Olshan Foundation Repair Company, LLC v. Gonzalez, 345 S.W.3d 431, 437 (Tex. App.-San Antonio 2011), aff'd, 400 S.W.Sd 52 (Tex. 2013) ..................................... 26
Trousdale v. Henry, 261 S.W.Sd 221, 234 (Tex. App.-Houston [14th Dist] 2008,pet. denied) ................................................. 26
Watts v. Oliver, 396 S.W.Sd 124,135 (Tex. App.-Houston [14th Dist] 2013, no pet.) ........................... 35
Westland Oil Development Corporation v. Gulf Oil Corporation, 637 S.W.2d 903 (Tex. 1982) ......................................... 18
STATUTES. RULES. AND OTHER AUTHORITIES
Tex. Civ. Prac. & Rem. Code §§16.003, 16.004 .......................... 27
Tex. R. App. P.9 .................................................. 37
Tex. R. App. P., Rule 33............................................. 15
Tex. R. App. P.38 ................................................. (i)
Tex. R. App. P.39 ................................................ (ii)
Tex. R. App. P, Rule 44.4(a). ........................................ 35
Tex. Bus. & Comm. Code §17.50. .................................... 34
Tex. Bus. & Comm. Code §17.565. ................................... 26
(vi) CAUSE NO. 04-15-00074-CV
IN THE COURT OF APPEALS FOR THE FOURTH COURT OF APPEALS DISTRICT OF TEXAS, SAN ANTONIO, TEXAS
STACEY SCOTT, Appellant
vs.
LARRY FURROW AND KELLER WILLIAMS LEGACY GROUP, Appellees
ON APPEAL FROM THE 25™ JUDICIAL DISTRICT COURT OF GUADALUPE COUNTY, TEXAS CAUSE NO. 13-1125-CV-A
BMEF OF APPELLEES
TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF APPEALS OF THE STATE OF TEXAS, SAN ANTONIO, TEXAS:
NOW COME LARRY FURROW AND KELLER WILLIAMS LEGACY
Free access — add to your briefcase to read the full text and ask questions with AI
ACCEPTED 04-15-00074-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 12/1/2015 5:28:25 PM KEITH HOTTLE CLERK
CAUSE NO. 04-15-00074-CV
FILED IN 4th COURT OF APPEALS IN THE COURT OF APPEALS FOR THE FOURTHSAN COURT ANTONIO, TEXAS OF APPEALS DISTRICT OF TEXAS, SAN ANTONIO, TEXAS 12/01/15 5:28:25 PM KEITH E. HOTTLE Clerk
STACEY SCOTT, Appellant
vs.
LARRY FURROW AND KELLER WILLIAMS LEGACY GROUP, Appellees
ON APPEAL FROM THE 25™ JUDICIAL DISTRICT COURT OF GUADALUPE COUNTY, TEXAS CAUSE NO. 13-1125-CV-A
BRIEF OF APPELLEES
THORNTON, BIECHLIN, REYNOLDS & GUERRA, L.C. Vaughan E. Waters State Bar No. 20916700 100 N.E. Loop 410, Suite 500 San Antonio, Texas 78216 210-342-5555; 210-525-0666 (fax) ATTORNEYS FOR APPELLEES
ORAL ARGUMENT REQUESTED NAMES OF THE PARTIES
Pursuant to and in compliance with Rule 38, Tex. R. App. P., the parties to this appeal are:
STACEY SCOTT, Appellant
COUNSEL FOR APPELLANT: ANDREWS KURTH LLP Mr. Frederick Junkin State Bar No. 11058030 600 Travis St., Suite 4200 Houston, TX 77002 713/220-4766; 713/238-7387 (fax) frediunkm(%andrewskurth.com
LARRY FURROW AND KELLER WILLIAMS LEGACY GROUP, Appellees
COUNSEL FORAPPELLEES: THORNTON, BIECHLIN, REYNOLDS & GUERRA, L.C. Mr. Vaughan E. Waters State Bar No. 20916700 100 N.E. Loop 410, Suite 500 San Antonio, Texas 78216 210/342-5555; 210/525-0666 (fax) vwaters(2)thomtonfirm. corn
TRIAL COURT JUDGE: The Honorable W.C. Kirkendall 25th Judicial District Court Guadalupe County, Texas
(i) REQUEST FOR ORAL ARGUMENT
Pursuant to Rule 39, Tex. R. App. P., Appellees respectfully request oral argument in this case.
(ii) TABLE OF CONTENTS
Page
NAMES OF THE PARTIES ......................................... (i)
REQUEST FOR ORAL ARGUMENT ................................ (ii)
TABLE OF CONTENTS .......................................... (iii)
LIST OF AUTHORITIES .......................................... (iv)
I. STATEMENT OF THE CASE ................................... 2
II. ISSUES PRESENTED ................................. ...... 2
(1) ISSUE NO. 1: THE TRIAL COURT ACTED CORRECTLY IN GRANTING SUMMARY JUDGMENTFORAPPELLEES ONTHE CLAIMS AND CAUSES OF ACTION ASSERTED BY SCOTT (Responsive to Appellant's Issue Nos. 1 and 2) (2) ISSUE NO. 2: SCOTT RA.S FAILED TO PRESERVE ERROR AS TO THE TRIAL COURT'S GRANT OF SUMMARY JUDGMENT IN FAVOR OF APPELLEES ON THEIR COUNTERCLAIM FOR ATTORNEY'S FEES (Responsive to Appellant's Issue Nos. 3 and 4)
III. STATEMENT OF FACTS ...................................... 3
IV. SUMMARY OF THE ARGUMENT ............................. 15
V. ARGUMENT AND AUTHORITIES ............................. 16
PRAYER ........................................................ 36
(ill) CERTIFICATE OF COMPLIANCE ................................... 37
CERTIFICATE OF SERVICE ....................................... 37
(iv) LIST OF AUTHORITIES
CASES PAGE
Cantu v. Preacher, 53 S.W.3d 5 (Tex. App.-San Antonio 2001, pet. denied) ...................................................... 29
Estate ofJobe v. Berry, 428 S.W.3d 888, 902 (Tex. App.-Texarkana 2014, no pet.) .................................. 26
Exxon Mobil Chemical Company v. Ford, 187 S.W.3d 154 (Tex. App.-Beaumont 2006), reversed in part on other grounds, 235 S.W.3d 615 (Tex. 2007) ........................................ 20
Farroux v. Denny's Restaurants, Inc., 962 S.W.2d 108 (Tex. App.-Houston [1st Dist.] 1997, no pet.) .............. 12
Ford v. Exxon Mobil Chemical Company, 235 S.W.Sd 615, 616 (Tex.2007) ...................................................... 23
HECI Exploration Company v. Neel, 982 S.W.2d 881, 887 (Tex. 1998). ..... 20
Isaacs v. Schleier, 356 S.W.3d 548,562 (Tex. App.-Texarkana 2011, pet. denied) ............................... 26
Lesieur v. Fryar, 325 S.W.3d 242 (Tex. App.-San Antonio 2010,pet. denied) ................................................. 34
Marker v. Garcia, 185 S.W.3d21 (Tex. App.-San Antonio 2005, no pet.)................................. 34
NRC, Inc. v. Pickhardt, 667 S.W.2d 292 (Tex. App.-Texarkana 1984, writ refd n.r.e.) .............................................. 18
Ojeda de Toca v. Wise, 748 S.W.2d 449 (Tex. 1988) ..................... 17
Salinas v. Gary Pools, Inc., 31 S.W.3d 333
(V) (Tex. App.-San Antonio 2000, no pet.)................................. 24
Santiago v. NovaStar Mortgage, Inc., 443 S.W.Sd 462, 471 (Tex. App.-Dallas 2014, pet. denied) .................................. 20
Sherman v. Sipper, 137 Tex. 85, 152 S.W.2d 319, 320-321 (1941) .......... 22
Southwest Olshan Foundation Repair Company, LLC v. Gonzalez, 345 S.W.3d 431, 437 (Tex. App.-San Antonio 2011), aff'd, 400 S.W.Sd 52 (Tex. 2013) ..................................... 26
Trousdale v. Henry, 261 S.W.Sd 221, 234 (Tex. App.-Houston [14th Dist] 2008,pet. denied) ................................................. 26
Watts v. Oliver, 396 S.W.Sd 124,135 (Tex. App.-Houston [14th Dist] 2013, no pet.) ........................... 35
Westland Oil Development Corporation v. Gulf Oil Corporation, 637 S.W.2d 903 (Tex. 1982) ......................................... 18
STATUTES. RULES. AND OTHER AUTHORITIES
Tex. Civ. Prac. & Rem. Code §§16.003, 16.004 .......................... 27
Tex. R. App. P.9 .................................................. 37
Tex. R. App. P., Rule 33............................................. 15
Tex. R. App. P.38 ................................................. (i)
Tex. R. App. P.39 ................................................ (ii)
Tex. R. App. P, Rule 44.4(a). ........................................ 35
Tex. Bus. & Comm. Code §17.50. .................................... 34
Tex. Bus. & Comm. Code §17.565. ................................... 26
(vi) CAUSE NO. 04-15-00074-CV
IN THE COURT OF APPEALS FOR THE FOURTH COURT OF APPEALS DISTRICT OF TEXAS, SAN ANTONIO, TEXAS
STACEY SCOTT, Appellant
vs.
LARRY FURROW AND KELLER WILLIAMS LEGACY GROUP, Appellees
ON APPEAL FROM THE 25™ JUDICIAL DISTRICT COURT OF GUADALUPE COUNTY, TEXAS CAUSE NO. 13-1125-CV-A
BMEF OF APPELLEES
TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF APPEALS OF THE STATE OF TEXAS, SAN ANTONIO, TEXAS:
NOW COME LARRY FURROW AND KELLER WILLIAMS LEGACY
GROUP, Appellees in the above entitled and numbered cause, and file this their Brief
ofAppellees, pursuant to and in accordance with Rule 38.2, Tex. R. App. P.; and in
support thereof would respectfully show this Honorable Court as follows: I.
STATEMENT OF THE CASE
This is an appeal from a summary judgment entered November 13,2014 in the
25 Judicial District Court ofGuadalupe County, Texas, the Hon. W.C. Kirkendall
presiding, in favor ofAppellees LARRY FURROW ("FURROW") and KELLER
WILLIAMS LEGACY GROUP ("KELLER WILLIAMS") and against Appellant
STACEY SCOTT ("SCOTT"). Pursuant to this judgment the claims and causes of
action of SCOTT against FURROW and KELLER WILLIAMS were severed from
her claims and causes of action against other individuals (not parties to this appeal),
and later made final by the trial court's judgment of February 24, 2015 awarding
attorney's fees and costs in favor ofAppellees. Supp. C.R. (04/29/2015), at 2-5, 38-
40.
II.
ISSUES PRESENTED
ISSUE NO. 1: THE TRIAL COURT ACTED CORRECTLY IN GRANTING SUMMARY JUDGMENT FORAPPELLEES ON THE CLAIMS AND CAUSES OF ACTION ASSERTED BY SCOTT (Responsive to Appellant's Issue Nos. 1 and 2)
ISSUE NO. 2: THE TmAL COURT ACTED CORRECTLY IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLANTS ON THEIR COUNTERCLAIM FOR ATTORNEY'S FEES (Responsive to Appellant's Issue Nos. 3 and 4) III.
STATEMENT OF FACTS
This a tale of three lots located on the Guadalupe River. They are referred to
in SCOTT'S pleadings and in her Appellant's Brief as "Lots 1, 2 and 3", and for
convenience will be referred to likewise here. Lot 2—also known as 1104 Peggy
Lane, Seguin, Texas—was and is an improved residential lot purchased by SCOTT
from Juanita Denn and D.R. Ban- (Defendants in the underlying case but not parties
to this appeal). SCOTT—then a litigation paralegal of more than fifteen years'
experience—and the sellers entered into an earnest money contract on April 22,2006
to purchase Lot 2, and the sale closed on May 22, 2006. Appellant's Brief, at 4; II
Supp. C.R, Vol. 1,at 18-19. FURROW and KELLER WILLIAMS were the realtor
and brokerage involved in this transaction, and FURROW was the listing agent. Id.
FURROW showed Lot 2 to SCOTT before she entered into the earnest money
contract. When she viewed Lot 2 she observed that it did not abut the actual
riverbank; as she testified in her deposition:
Q [by Mr. Cline]: You knew that that house did not sit on the banks of the Guadalupe River, that there was other properties between that house and the river?
A [by Ms. Scott]: That is correct.
II Supp. C.R., Vol. 2, at 222. Although SCOTT does not remember the-exact words
FURROW used, she had an understanding that the purchase of Lot 2 was tied to an
interest in a waterfront access property—Lot 1—which FURROW showed her as part
of the property tour. Id. As SCOTT explained it in her deposition taken January 15,
2014: Q [by Mr. Cline]: Alright. Did you think you were buying that other lot [Lot 1] in its entirety or did he explain that it's—people that have lots in this vicinity have access through that particular lot?
A [by Ms. Scott]: I was—no, he explained that there—by purchasing 1104 Peggy Lane, I would be purchasing a legal interest in that waterfront access lot [Lot 1].
Q: Right. Shared with others?
A: I don't know.
II Supp. C.R., Vol. 2, at 224. More particularly:
Q: You thought that you had the—the exclusive access to that waterfront area?
A: I didn't at the time know who all had access to the lot.
Q: Did you think when you bought the property that you had exclusive access to the waterfront lot?
A: I don't believe I ever thought I had exclusive access to the lot. I believe I had a legal right to the lot, a legal interest and I believed that 's what I was purchasing.
II Supp. C.R., Vol. 2, at 225 (emphasis added). And when asked, "And so 1104
Peggy Lane does provide waterfront access"? SCOTT testified: "Yes." II Supp.
C.R., Vol. 2, at 229.
SCOTT punctuated the point once more, later in her deposition:
Q: All right. Well, you're not claiming that Mr. Furrow told you had exclusive access to that waterfront lot, are you?
A: I don't recall what specifically was said in terms of exclusivity of the property. I just know that It was sold as a legjil right to—as waterfront access to—in conjunction with buying 1104 Peggy Lane.
II Supp. C.R., Vol. 2, at 230 (emphasis added).
One year later, in May 2007, SCOTT purchased the adjoining vacant lot
located at 1110 Peggy Lane, Seguin, Texas (Lot 3); she alleges in her First Amended Petition that, based on what was represented to her by the owners of that lot (Juanita
Denn and D.R. Ban", likewise the owners/sellers of Lot 2) and by FURROW the
previous year, she was "solidifying" her "exclusive" ownership rights to Lot 1, the
waterfront access property. II Supp. C.R., Vol. 1, at 18-19. FURROW and KELLER
WILLIAMS were not involved in any way with SCOTT's purchase of Lot 3. II Supp.
C.R, Vol. 2, at 221,236.
On March 23, 2011 SCOTT believed an issue had arisen with respect to the
access of Lots 2 and 3 to the Guadalupe River. She inquired by e-mail of attorney
Robert Ritter (again, a Defendant in the underlying proceeding but not a party to this
appeal); as she put it, "I e-mailed Robert Ritter and inquired about the discrepancy
between the vacant lot waterfront ownership to the access property and 1104 Peggy
Lane." II Supp. C.R., Vol. 2, at 232. That e-mail was never responded to. Id. She
does not recall what prompted her to send the e-mail, but it had something to do with
the vacant lot, Lot 3. Id. As she testified, she "[q]uestioned [her] ownership rights
to the water access lot in conjunction with 1110 Peggy Lane [Lot 3]." II Supp. C.R.,
Vol. 2, at 238. More particularly:
Q: That's when you first thought, "Maybe I don't have waterfront access rights"?
A: Yeah, that's when I first questioned whether or not I did and tried to inquire.
Q: And that's when you kind of began this—trying to discover "what do I have or not have"?
A: Correct...
II Supp. C.R, Vol. 2, at 251-252. SCOTT describedher claim against FURROW, KELLER WILLIAMS, and the
other underlying Defendants regarding waterfront access as follows:
Q [by Mr. Cline]: In other words, you're not trying to tell the jury, "I thought the home at 1104 was on the waterfront and it's not"? You're telling the jury, "I thought I had access to this lot, the one that I've drawn in on the waterfront, and I don't"?
A [by Ms. Scott]: Well, I think the problem lies in the use of the term "waterfront." I mean, yes, I'm a litigation paralegal of 24 years, but I'm not—I left Texas when I was 16,17 years old. So I'm not familiar with, you know, the terms that are used here. And I've seen other attorneys use the term "waterfront" loosely in conjunction with the same properties. So if there's—
Q: All right. Let me see if we can divide it up. I'm just trying to make sure we understand each other. Just considering the home, 1104—Vm not talking about the waterfront access. All right. You're not claiming, "I thought this home at 1104 was on the waterfront and it's not"? That's not your claim; correct?
A: My claim is that I was sold something that doesn't exist.
MR. JEMELA: Objection, non-responsive.
MR. McNEIL: Same objection.
Q [by Mr. Cline]: Yeah. I'm still—what are you saying doesn't exist?
A [by M;s. Scott]: I'm saying that the picture that is associated with this advertisement and what was sold as apart of 1104 Peggy Lane—-and I'm referring to Exhibit A-2 of my petition—the ownership rights don't exist as were sold to me.
Q: Okay. Your contention is 1104 Peggy Lane does not have access to that neighborhood park or that waterfront lot or whatever you want to call it?
A: Correct. It's neither waterfront nor waterfront access.
II Supp. C.R, Vol. 2, at 243-244.
SCOTT was questioned very specifically on this point so as to nail down the
nature of her claim: Q [by Mr. Clinej: If it turns out that 1104, in fact, does enjoy the right to use that waterfront lot, would you still have any claim or any—any claim against Mr. Furrow? Would you feel like there was a problem with your purchase from him?
A [by Ms. Scott]: I would still have a claim, yes.
Q: What would it be?
A: I haven't assessed it fully.
Q: Okay. As we sit—in other words, let' s assume hypothetically that we go to court this afternoon and the judge in Seguin says, "I have looked at the deed records and I've looked at the plats and I've looked at the restrictions, and the waterfront lots and boat ramps may be accessed by the owner of 1104 Peggy Lane. 1104 Peggy Lane does, in fact, enjoy waterfront access rights." If the court said that, what would your complaint against Mr. Furrow be?
A: Assuming that someone produced a dedication deed?
A: Assuming that a court—whether it's a dedication deed or what, assuming that a judge today says, "No, I decree and declare the owner of 1104 Peggy Lane has the rights to waterfront access on these two lots"—
A: The legal ownership rights.
Q: Yes. Yes. Assuming that, what would your complaint against Mr. Furrow be?
A: I haven't—I mean, if you're asking me to assess what my damages are right here and now—
Q: No, no,no,not your damages.
A: Well, if I had a claim against Larry Furrow today, right here, right now— Q: Yes.
A: —you're asking me to assess the value?
Q: No, I'm not.
A: You're asking me if I have a claim? Q: What I'm saying is—you understand my hypothetical? That a judge says West and West is wrong, 1104 does enjoy access to the waterfront through the two lots that you drew in on number 4. Now, that would be what Mr. Furrow told you he was selling you, righfl
A: The legal right to waterfront access?
Q: Yes.
A: Yes.
Q: Okay. So let's assume hypothetically that that's what happens. So then wliat, then, would your complaint against Mr. Furrow be? What would you say he did to harm you or damage you? I'm not asking an amount. I'm asking what would the claim be?
A: I'm not prepared to assess my claim or what my claim would be right here right—
Q: Well, I want you to give your best effort right now to say, "Well, assuming he sold me what he said he was going to sold me, he still harmed me by," and you fill in the blank. Tell me what it is as best you can.
A: I wouldn't be prepared to do that right now as best I can. I mean, that would take time and consideration to determine what-
Q: So you can't tell me?
A: Right at this point in time, no, I can't.
Q: Because isn't that your complaint against—I mean, that's the only complaint you have against Mr. Furrow as we sit here today, right? "He sold me this property and he said I had waterfront access rights and I don't." Isn't that your complaint against Mr. Furrow?
A: Yes.
Q: I mean, that's your only complaint against Mr. Furrow, right?
A: Yes.
II Supp. C.R., Vol. 2, at 248-251 (emphasis added).
SCOTT testified farther regarding this complaint by analogizing 1104 Peggy
Lane to her other property, 634 Ashmore Avenue in New Braunfels: "Both—my
8 property at 634 Ashmore Avenue is also—it's not waterfront, but it's water access.
It's literally identical, an identical situation and I closed escrow on Ashmore two
•weeks prior to closing escrow on Peggy Lane." II Supp. C.R., Vol. 2, at 240
(emphasis added). Further in that regard:
Q [by Mr. Cline]: In other words, Ashmore is a home that sits off away from the river, but it has access to a lot that's on the river?
A [by Ms. Scott]: Two lots, correct, lot A and lot B. 64 (sic) Ashmore Avenue in New Braunfels is situated in the Guada Coma neighborhood in the historic district of New Braunfels. And it has private water access to two lots to both the Comal River and the Guadalupe River.
Q: Right. And that's not exclusive access, is it?
A: It's exclusive to Guada Coma neighborhood.
Q: Right. Okay.
A: Which is what, I believe, was similar to what Larry was advertising. And to be clear, when I closed on the 634 Ashmore property, it's not—there's no mention in the deed or anything on the actual house that references the access lots, but there's a dedication deed that exists. And already haying that knowledge, when I closed escrow on 1104 Peggy Lane and dealt with Larry Furrow, I mirrored exactly my situation with Ashmore. So I was comfortable with that.
Q: And you had done Ashmore before that?
A: Two weeks before.
II Supp. C.R., Vol. 2, at 240-241 (emphasis added).
Mr. Cline then directed SCOTT' s attention in her deposition to a certified copy
of the Guadalupe County Deed Records authorizing the filing of the plat of A.J.
Grebey Subdivision No. 1. H Supp. C.R., Vol. 2, at 261; H Supp. C.R., Vol. 1, at
197-198. SCOTT conceded that Lot 1 "is a park for the purpose of granting the lot
owners [of the subdivision] access to Lake McQueeney." II Supp. C.R., Vol. 2, at
264. Further: Q [by Mr. Cline]: Exhibit 8, do you see, is a certified copy of the plat of the A.J. Grebey Subdivision No. 1 and we see Lot 2 would be 1104 Peggy Lane; right?
A [by Ms. Scott]: Yes.
Q: And then Lot 1 would be the waterfront access lot-
A: It would be.
Q: —that Mr. Furrow told you had access to if you bought Lot 2; right?
A: A legal to, an ownership right.
Id.
Subsequent to her deposition, on March 4, 2014 SCOTT filed her First
Amended Petition. II Supp. C.R., Vol. 1, at 14. Although she had testified clearly,
expressly and unequivocally that her complaint against FURROW and KELLER
WILLIAMS was that she had been "sold something that doesn't exist"—that is, that
Lot 2 was "neither waterfront nor waterfront access"—and that what FURROW had
told her was being sold was "the legal right to waterfront access", she attempted to
change her theory of the case. The gravamen of her complaint went from "he sold me
this property and he said I had waterfront access rights and I don't" to "he sold me
this property and he said I had exclusive waterfront access rights and I
don't"—although, again, her sworn testimony had been that when she closed on Lot
2 she had not expected to receive, and did not believe she was receiving, exclusive
waterfront access rights. II Supp. C.R., Vol. 2, at 251; II Supp. C.R., Vol. 1, at 19.
On May 6, 2014 FURROW and KELLER WILLIAMS moved for summary
judgment. II Supp. C.R.,Vol. 1, at 177. While several grounds of summary judgment
were alleged, chief among these was that "[a]ll of Plaintiff s claims are barred by the
statute of limitations." II Supp. C.R., Vol. 1, at 182.
10 In particular, FURROW and KELLER WILLIAMS pointed out that the
documents that would provide the information concerning the nature and extent of
SCOTT'S legal rights in Lot 2 (the only lot as to which she asserts claims against
these parties) were of public record at the time of closing in the Guadalupe County
real property records. In addition, SCOTT'S March 23, 2011 e-mail to attorney
Robert Ritter—sent two years and two months prior to her filing of the instant
lawsuit—expressly raised the issue of -whether and to what extent she had been
granted the •waterfront access she was led to believe she was acquiring in the
purchase of Lots 2 and 3. Id.
SCOTT, in her response filed October 15,2014, urged that her claims are saved
by the discovery mle:
Under the "discovery rule", Plaintiffs claims were precipitated against Defendants when she received an e-mail from attorney for Defendant, Juanita Denn and Patrick Denn (Mr. West), on April 17, 2013, who stated as follows: " We have checked with our client and there is no documentation, at least recorded that we know, that shows the right to the gated waterfront park." (See Plaintiffs depo. 55:11-23).
II Supp. C.R, Vol. 2, at 10-11.
In addition to the limitations ground, FURROW and KELLER WILLIAMS set
forth the ground that the summary judgment evidence conclusively establishes—by
SCOTT'S own deposition testimony—the absence of the gravamen of her claims and
causes of action, as follows:
19. In addition to the limitations issues, Plaintiff has contradicted her claims of DTPA violations, negligent misrepresentation, iraud, and fraud by non-disclosure regarding the Waterfront Park, by her own deposition testimony where she admitted that she was led to believe" by Larry Furrow that her access to the Waterfront Park was shared with her neighbors, which is what she has. See Exhibit 9, Deposition Testimony ofStacy Scott, P. 26, L. 11 - P.
11 27, L. 17. See also, Deposition Testimony ofStacy Scott page 42, line 5 -page 43, line 9, hereinafter referred to as Exhibit 11.
II Supp. C.R., Vol. 1, at 182. (Under the sham affidavit doctrine, a party may not
submit an affidavit in support of or in opposition to a summary judgment motion
which contradicts that party's previous sworn deposition testimony, absent a clear
explanation within the affidavit for any such discrepancy. Farroux v. Denny's
Restaurants, Inc., 962 S.W.2d 108 (Tex. App.-Houston [lstDist] 1997, no pet.)).
SCOTT'S "Supplemental Supportive Affidavit" to her summary judgment
response, filed October 20, 2014, squarely contradicts her earlier deposition
testimony. In that regard, SCOTT states in the affidavit that
[i]n 2006,1 purchased Lot 2 and what I believed was a one-half interest in Lot 1 (the waterfront/water access lot associated with the property I was purchasing). At the suggestion of [FURROW and KELLER WILLIAMS] (sellers' listing agent), one year later (in 2007), I purchased Lot 3 (the adjoining vacant lot to Lot 2) directly from [Ms. Denn and Mr. Barr] ("sellers"), so as to acquire exclusive ownership of the waterfront/water access property.
II Supp. C.R., Vol. 2, at 491 (emphasis added).
On November 3, 2014 Judge Kirkendall, presiding judge of the 25 Judicial
District Court of Guadalupe County, Texas, issued his letter ruling which was
incorporated into his interlocutory summary judgment dated November 13, 2014.
Supp. C.R. (04/29/15), at 2-5. By this order Judge Kirkendall granted the traditional
summary judgment motion of FURROW and KELLER WILLIAMS (without
specifically stating the grounds on which it was being granted), while denying the no-
evidence summary judgment motion. This order further severed the claims and
causes of action brought by SCOTT against FURROW and KELLER WILLIAMS,
placing them under a separate cause number, thus preserving the counterclaim of
12 FURROW and KELLER WILLIAMS against SCOTT for attorney's fees for a later
proceeding. Id.
Subsequently, on January 23, 2015, FURROW and KELLER WILLIAMS
moved for summary judgment on their counterclaim against SCOTT for attorney's
fees. II Supp. C.R, Vol. 1, at 169-177; Supp. C.R. (04/29/15), at 8-37. FURROW
and KELLER WILLIAMS urged that they were entitled to attorney's fees on either
of two alternative grounds: first, that they were the prevailing parties in a claim
arising from the earnest money contract between SCOTT and the sellers of Lot 2,
such that under the terms of the contract itself, particularly of para. 17 thereof, they
are entitled to recover their reasonable and necessary attorney's fees incurred in
defending against SCOTT'S claim; and second, that SCOTT'S actions—brought in
part under the DTPA—are groundless in law and in fact, and brought in bad faith for
the purpose of harassment within the meaning ofTex. Bus. & Comm. Code §17.50,
thus entitling them to attorney's fees. Id.
On February 24, 2015 SCOTT filed her delinquent response to the summary
judgment motion. Supp. C.R., at 4-63. The only issues raised in avoidance of
summary judgment on the attorney's fees counterclaim were that "Defendants' billing
summary for their attorney's fees does not distinguish what fees were expended for
the issue [of statute of limitations] on which they prevailed" (Supp. C.R., at 6), and
(b) that "Defendants are attempting to take a second bite at the apple by pleading
issues and evidence, which have already been fully adjudicated" (Supp. C.R., at 7)
(an argument to the effect that the November 13, 2014 interlocutory summary
judgment order was in fact a final judgment).
13 The trial court entered its final judgment in the severed cause on February 24,
2015, reincorporating the earlier interlocutory summary judgment order, granting the
summary judgment motion of FURROW and KELLER WILLIAMS on their
attorney's fees counterclaim, and awarding attorney's fees for trial and appeal in the
sum of $95,179.00. Supp. C.R. (04/29/15), at 38-40.
Meanwhile, on December 12, 2014, SCOTT had filed her "Motion for New
Trial on Final Judgment As To Defendant Keller Williams Legacy Group and Larry
Furrow's Summary Judgment." C.R., at 61 1-642. This new trial motion, however,
addressed only the interlocutory summary judgment order on her own claims and
causes of action (erroneously characterizing same as a "final judgment"), and did not
address the issues raised in the counterclaim on attorney's fees or the grounds of
summary judgment thereon. Id.
On March 26, 2015 SCOTT filed her new trial motion on the attorney's fees
counterclaim. Supp. C.R., at 41-123. The sole issue raised in support of the motion
was to the effect that SCOTT was entitled to a new trial "in the interest of justice and
fairness because Defendants [FURROW and KELLER WILLIAMS] withheld key
evidence, which they used against her in their motion for summary judgment." Supp.
C.R, at 41. This related to an issue of whether FURROW and KELLER WILLIAMS
had properly produced invoices for attorney's fees and written discovery. Id. No
other issue was raised. This motion was overruled by order dated May 7,2015. App.
I.
This appeal ensues.
14 IV.
SUMMARY OF THE ARGUMENT It is undisputed—indeed, SCOTT freely concedes—that SCOTT filed the
instant lawsuit (1) seven years to the month after she acquired title to Lot 2 by a deed
which conveyed only Lot 2 and the rights associated therewith, (2) six years to the
month after she acquired Lot 3 by a deed which conveyed only Lot 3 and the rights
associated therewith (and in which transaction and conveyance neither FURROW nor
KELLER WILLIAMS played any part whatsoever), and (3) asserting claims which
all revolve around the theory that she acquired in both these conveyances what she
testified clearly, expressly, unequivocally and under oath in her deposition was
precisely the form of waterfront access to which she felt she was entitled by the
representations of FURROW and KELLER WILLIAMS, and which she expected to
receive. Summary judgment was properly granted on all claims and causes of action
asserted by SCOTT against FURROW and KELLER WILLIAMS.
As to the latters' counterclaim against SCOTT for attorney's fees, and the trial
court's grant of summary judgment on that counterclaim, SCOTT has utterly failed
to preserve error in accordance -with Rule 33, Tex. R. App. P. as to any complaint
•whatsoever about that summaiy judgment — and the facial speciousness of SCOTT'S
arguments both at the trial court and in this appeal demonstrate eloquently the
fhvolousness and bad faith of her having asserted the underlying claims in the first
instance.
The summary judgments granted by the trial court and incorporated into the
final judgment rendered hereinbelow are correct and complete, and should be
affirmed.
15 V.
ARGUMENT AND AUTHORITIES
ISSUE NO. 1 RESTATED: THE TMAL COURT ACTED CORRECTLY IN GRANTING SUMMARY JUDGMENT FOR APPELLEES ON THE CLAIMS AND CAUSES OF ACTION ASSERTED BY SCOTT (Responsive to Appellant's Issue Nos. 1 and 2)
A. The claims and causes of action alleged against FURROW and KELLER WILLIAMS are conclusively barred by the two-year andfour-year statutes of limitations
Judge Kirkendall, in his initial letter ruling on the interlocutory summary
judgment motion, explained his reasoning as follows:
There appears to be no dispute that suit was filed outside the applicable statutes of limitation for each cause of action. The question before the Court is whether any "discovery rule" or "fraudulent concealment" have tolled the running of the statutes.
It is clear that the law in Texas is that fraud prevents the running of the statute of limitations until it is discovered or by the exercise of reasonable diligence it might have been discovered. Ruebeck v. Hunt 176SW2d738(Tex. 1943).
However when a person has a right in property, and she claims fraudulent statements are made concerning title to the property, when the public records are open to her, she must exercise reasonable diligence to discover the defect. Exxon Mobil v. Ford, 187 SW3d 154 (Court of Appeals: Beaumont, 2006).
Information contained in public records can be ascertained through reasonable diligence and is not inherently undiscoverable. Thus a person must exercise reasonable diligence, and if he could have
16 discovered a defect, she is held to have known it, and limitations will run against her. Swanson v. Stouffer & Assocs., 2014 WL 2522145 (Court of Appeals: Austin 2014).
Although it is not precisely clear what plaintiff is claiming (either exclusive ornon-exclusive access to the waterfront), there is no question the precise nature of her title could have been ascertained from public record. Since she did not discover the defect, if any, she did not exercise due diligence. Therefore the applicable statutes of limitations are not tolled, and suit on her causes of action is banned.
The defendants' traditional motion for summary judgment is GRANTED in all things.
Supp. C.R. (04/29/2015), at 4-5.
SCOTT, in her Appellant's Brief, complains that this analysis is "contrary to
long-standing precedent"—citing, inter alia, to the Texas Supreme Court's opinion
in Ojeda de Toca v. Wise, 748 S.W.2d 449 (Tex. 1988). In fact and in law it is
SCOTT'S position which is "contrary to long-standing precedent", and it is SCOTT
who misunderstands and misapplies the cases on which she purports to rely.
In Ojeda de Toca the plaintiff purchased a house from the defendants, only to
have the house demolished sometime after the purchase by the City of Houston
pursuant to an order which had been filed previously in the Harris County deed
records. The plaintiff filed suit against the seller and others, alleging violations of the
DTPA, fraud in a real estate transaction, and negligence. The jury found, and the trial
court rendered judgment, that the seller knew but failed to disclose that the property
17 was subject to the demolition order. The court of appeals reversed, concluding that
recordation of the demolition order provided constructive notice and constituted a
defense as a matter of law to the DTPA and fraud claims. Ojeda de Toca, at 450.
The Texas Supreme Court reversed the court of appeals, holding that record
notice will not in all situations operate as a defense to a DTPA cause of action. In
arriving at its conclusion the Court expressly distinguished two cases cited by the
defendants—Westland Oil Development Corporation v. Gulf Oil Corporation, 637
S.W.2d 903 (Tex. 1982) andNRC, Inc. v. Pickhardt, 667 S.W.2d 292 (Tex. App.-
Texarkana 1984, writ refd n.r.e.)—in that those cases were, respectively, "a title
dispute" and "a statute of limitations defense." Id., at 451. The instant case is both.
Ojeda de Toca has nothing to say about a situation in which the plaintiff complains
first of having been sold a piece of property without waterfront access, and
then—upon discovering in the course of her own deposition that yes, the property
does indeed have waterfront access—changes her complaint to one that she was sold
the full ownership interest in one particular lot, when she thought she was being sold
thatplus a one-half undivided interest in another particular lot (this even though the
deed by which she acquired the property makes no reference whatsoever to a one-half
undivided interest in anything).
18 Ojeda de Toca is inapposite not only because it dealt with issues other than
title, but because it dealt with the existence or non-existence of a cause of action — not
with the effect of the statute of limitations on that cause of action. In NRC, supra — a
limitations case—the Texarkana Court of Appeals observed that "[a] purchaser of
land has constructive notice of all information contained in his grantor' s chain of title,
and he is bound by every recital, reference and reservation contained in or fairly
disclosed by any instrument which forms an essential link in that chain [citing, inter
alia, WestlandOil, supra}." NRC, at 294. Thus the court concluded that limitations
barred the purchaser's cause of action for failure to disclose the existence of a Lower
Colorado River Authority easement, as affecting his marketable title, since he was
charged with actual notice of the easement. NRC, at 294. The court further observed,
however, that "[n] one of the brochures or any other information furnished by NRC
or reasonably available to Pickhardt indicated that his lots were below the 715-foot
line, and it is conceded that such fact could only have been determined by a
topographical survey." Id., at 293. The court pointed out that a seller has a duty to
disclose material facts affecting the suitability of the property for its intended use
which would not be discoverable by the exercise of ordinary diligence on the part of
the purchaser, and that where there is "such a failure to disclose, the statute of
19 limitations begins to run when the fraud is discovered or should have been discovered
by the exercise of reasonable diligence." Id., at 294.
So it is in the instant case: SCOTT'S claims relate to the state of title to Lot 2
as it concerns waterfront access rights and the extent of her ownership ofwaterfront
access rights—matters which can be determined quite simply by a review of her title
deed and of the matters of record referenced in that deed. No topographical survey
would have been needed. Indeed, even when a party does not have constructive
notice of matters filed in the public record, "a cause of action for failure to provide
that information is not inherently undiscoverable" for purposes of triggering
limitations. Santiago v. NovaStar Mortgage, Inc., 443 S.W.Sd 462,471 (Tex. App.-
Dallas 2014, pet. denied) (quoting HECI Exploration Company v. Neel, 982 S.W.2d
881, 887 (Tex. 1998)).
Exxon Mobil Chemical Company v. Ford, 187 S.W.3d 154 (Tex. App.-
Beaumont 2006), reversed in part on other grounds, 235 S.W.Sd 615 (Tex.
2007)—cited by Judge Kirkendall in his letter ruling—is very much on point. In that
case Exxon Mobil's predecessor-in-title purchased a pipeline easement in 1998 from
Ford's predecessor-in-title. A map showing the path of the proposed pipeline passing
through the Antwine Mart survey ("the Mart"), the Munsen Bowes survey ("the
Bowes"), and the Elias Stone survey ("the Stone") was attached to the agreement and
20 filed in the property records of Jefferson County, but the easement agreement itself
did not incorporate the map by reference or otherwise referred to it; the text of the
easement agreement did not mention the Stone. Exxon Mobil, at 156. Later that
same year the two parties executed an easement amendment dealing with operational
workspace; unlike the original easement agreement, however, the amendment did
refer specifically to the Stone as well as to the Bowes and the Mort, reciting further
that "all other terms and conditions of the above easement shall remain in force and
effect." Ford subsequently purchased the Stone, the Mart, and the Bowes, among
other tracts, by special warranty deed which recited that the conveyance was subject
to the earlier recorded easement. Later still, in February 1 999, Ford and Exxon Mobil
executed another easement amendment, providing for a relocation of the proposed
pipeline route, attaching a map thereof, and again referencing the original pipeline
easement as being over and across, inter alia, the Stone. Id.
A few years later, in October of 2002, Ford read the original easement
agreement and "became uncertain" that it created an easement across the Stone, so he
wrote to Exxon Mobil about his concerns. He proposed to execute a "complete,
perfected easement document" in exchange for 135 acres of land. Exxon Mobil,
however, responded that it was of the opinion that the pipeline right-of-way crossing
his property was adequately described in the existing easement. A year and a half
21 later, in IVIarch 2004, Ford sued Exxon Mobil seeking cancellation of the easement
agreement, removal of the pipeline, removal of the alleged cloud on his title, and
quieting of title; he also alleged statutory fraud against Exxon Mobil. Both parties
filed traditional motions for summary judgment, the trial court granted that of Ford,
and Exxon Mobil appealed. M, at 157.
The Beaumont Court of Appeals reversed. The court observed first that Ford's
causes of action seeking cancellation of the easement and for statutory fraud fell
within the four-year statute of limitations. "Fraud prevents the running of a statute
of limitations only until the fraud is discovered or could have been discovered
through the exercise of reasonable diligence." M, at 158 (citmgSherman v. Sipper,
137 Tex. 85, 152 S.W.2d 319, 320-321 (1941)). The court cited further, and with
approval, to Sherman:
[W]here a person has a right in property, and he claims fraudulent statements were made concerning the title to such property, when the records relating to such title are open to him he must exercise reasonable diligence to discover such defect; and if by the exercise of such diligence he could have discovered such defect and would have known of his right, he is held to have known it, and limitation will run against his claim from the time he could have made such discovery by the exercise of ordinary diligence.
Id.
Applying that principle, the court reasoned as follows:
22 The easement agreement does not include the Stone, yet the 1998 amendment recited that the easement crossed the Stone. If Ford had exercised reasonable diligence, he could have discovered the alleged fraud when he took title to the property by reading the original easement agreement, which did not mention the Stone, and the 1998 amendment that asserted an easement across the Stone existed. Indeed, Ford testified that he "became uncertain " about whether an easement existed across the Stone after simply reading the original easement agreement. Therefore, we rej ect Ford' s contention that he could not have discovered the alleged fraud simply by reading the documents in his chain of title. We find that Exxon conclusively established when Ford's cause of action accrued, and there is no genuine issue of material fact as to when Ford should have discovered his cause of action...
Id., at 158-159 (emphasis added). The court concluded that Ford's causes of action
for cancellation of the easement and for fraud were time-barred; however, the court
felt that the causes of action for quieting of title and removal of the alleged cloud on
title survived limitations. Id., at 159.
The Texas Supreme Court reversed only as regards the quiet title causes of
action, holding that all causes of action — not just fraud — were time-barred. Ford v.
ExxonMobU Chemical Company, 235 S.W.Sd 615,616 (Tex. 2007). The Court had
this to say:
On the merits, Ford argues the court of appeals erred in holding his fraud claim barred by limitations. The parties agree this claim had to be brought within four years of when the fraud should have been discovered by reasonable diligence...While not all public records establish an irrebuttable presumption of notice, the recorded instruments in a grantee's chain of title generally do [citing, inter alia, Westland Oil Development Corporation, supra}.
23 Ford, at 617 (emphasis added). It is significant that the Court expressly cited with
approval to Westland Oil Development Corporation, the very case it had
distinguished earlier in Ojeda de Toca. As Judge Kirkendall observed in this case
(perhaps pithily, given SCOTT'S flip-flop on her theory of the case), while it was not
entirely clear whether SCOTT was complaining about lack of waterfront access or
lack of exclusive waterfront access, in either event the documents in her chain of title
told her what she needed to know on the subject as of the very date of closing on May
22, 2006. Indeed, as and to the extent she complains of lack of "exclusive " access,
her own deed from the grantees Denn andBarr clarifies the matter nicely, since it
makes no reference at all to what she claims in her affidavit was the sought-qfter
"one-half undivided interest in Lot 7."
Although this Honorable Court's opinion in Salinas v. Gary Pools, Inc., 31
S.W.3d 333 (Tex. App.-San Antonio 2000, no pet.)—cited and relied upon by
SCOTT in her Appellant's Brief—predates by several years the holdings in Ford and,
of course, could not survive an inconsistency with the Texas Supreme Court's
opinion therein, nonetheless Salinas is easily distinguishable on its facts from the
instant case. There the defendant installed a swimming pool in the plaintiffs' yard;
originally the plan, as approved by the City of San Antonio, called for the pool to be
installed in the backyard, but the defendant determined unilaterally that this was not
24 feasible and so informed the plaintiffs (without submitting a revised plan to the city)
that it would install the pool in the side yard instead. Later, when the plaintiffs tried
to sell their house, it was surveyed at the behest of a prospective buyer, whereupon
it was discovered that the defendant had installed the pool partially on a public right-
of-way easement—a fact which would not have been apparent from a visual view.
The plaintiffs sued, and the defendant moved for summary judgment on limitations,
which was granted. Salinas, at 335.
This Honorable Court reversed, citing to Ojeda de Toca for the proposition that
constructive notice would not apply as a defense to claims brought under the DTPA.
The Court also observed, however, as follows:
[I]n [HECI Exploration Company, supra} the Texas Supreme Court noted that constructive notice of real property records is necessary to preserve stability and certainty regarding title to real property, and constructive notice of probate records in in rem proceedings is necessary because such proceedings are intended to bind all persons. This case is neither a case regarding title to real property, nor is it an in rem proceeding...
Id., at 337. Salinas thus is analogous to the issue mNRC, supra, involving the lots
being located below the 7 15-foot line. There, as in Salinas, the problem was not one
that could be seen and understood simply by reference to the title
documents—indeed, in both cases a survey was necessary to bring the issue into
focus. Here, by contrast, SCOTT'S claim is very much an issue of title, and is
25 governed entirely by what her own chain of title says she has or does not have, by
whether Lot 1 does or does not feature waterfront access, and by whether that
waterfront access is or is not shared by the rest of the subdivision.
Of course, even ifOjeda de Toca and Salinas could be applied to SCOTT'S
DTPA claims under the instant undisputed facts—which clearly is not the case—still
it would avail her nothing. The statute of limitations on a DTPA claim is two years.
Tex. Bus. & Comm. Code § 17.565. "The DTPA incorporates the discovery rule into
the statute, providing that the claim accrues when the 'consumer discovered or in the
exercise of reasonable diligence should have discovered the occurrence of the false,
misleading, or deceptive act or practice.'" Southwest Olshan Foundation Repair
Company, LLCv. Gonzales, 345 S.W.3d 431, 437 (Tex. App.-San Antonio 2011),
aff'd, 400 S.W.Sd 52 (Tex. 2013). It is of course axiomatic that discovery occurs
when a plaintiff has knowledge of such facts, conditions or circumstances as would
cause a reasonably prudent person to make an inquiry that would lead to discovery
of the cause of action. Isaacs v. Schleier, 356 S.W.Sd 548, 562 (Tex. App.-
Texarkana 2611, pet. denied); see also Estate ofJobe v. Berry, 428 S.W.Sd 888,902
(Tex. App.-Texarkana 2014, no pet.). "Knowledge of such facts is, in law, equivalent
to knowledge of the cause of action for limitations purposes." Estate ofJobe, supra
(quoting Trousdale v. Henry, 261 S.W.3d 221, 234 (Tex. App.-Houston [14th Dist.]
2008, pet. denied)).
26 On March 23,2011—two years and two months before she filed suit — SCOTT
e-mailed attorney Robert Ritter with her concerns about discrepancies between Lot
2 and Lot 3 regarding waterfront access through Lot 1 . Again as she testified, she
questioned her ownership rights to the water access lot and confirmed that this is
when she began trying to discover "what do I have or not have" (see supra). Even
if, under the clear authority of Ford andNRC, supra, limitations on SCOTT'S DTPA
claim could be deemed to have begun at any time later than when she closed on the
property—which Appellees do not concede, but expressly deny—still nothing could
be clearer than that SCOTT, more than two years before she filed suit, was on notice
of facts and of the need for further inquiry which, as a matter of law, constitutes
notice of the cause of action.
In sum, all claims and causes of action of SCOTT are, conclusively and as a
matter of law, barred by the two-year and four-year limitations statutes. Tex. Civ.
Prac. & Rem. Code §§16.003, 16.004. The trial court was correct in its entry of the
interlocutory summary judgment in favor of FURROW and KELLER WILLIAMS,
and that order, as incorporated into the final judgment, should be affirmed.
B. SCOTT'S claims and causes of action are barred by the sham affidavit doctrine.
27 In addition to limitations, the interlocutory summary judgment in favor of
FURROW and KELLER WILLIAMS on liability can be affirmed on at least one
other ground as well.
Again, the trial judge recited in his letter ruling that "[t]he Defendants'
Traditional Motion for Summary Judgment is GRANTED in all things." Supp. C.R.
(04/29/15), at 4. This was incorporated into the summary judgment order itself dated
November 13, 2014: "Defendants' Traditional Motion for Summary Judgment is
Granted in all things." Supp. C.R. (04/29/15), at 2. Among the grounds of the
"traditional" summary judgment motion was, again, that of the sham affidavit
doctrine: that the summary judgment evidence as set forth in SCOTT'S deposition
testimony conclusively established as a matter of law that she received the title which
she understood she was to have received, and that her subsequent affidavit—claiming
that what she really wanted and expected, and that what FURROW had represented
to her she would receive, was "exclusive" waterfront access rather than merely
waterfront access—was and is powerless to create a fact issue.
In Farroux, supra, the plaintiff alleged that he ate a grand slam breakfast from
Denny's which gave him food poisoning. He admitted in deposition that his personal
physician had told him there were too many possibilities to determine whether the
Denny's food caused his illness, and that no physician had ever told him that the
28 Denny's breakfast caused any of his health problems. Subsequently, however, in
response to the defendant's summary judgment motion, the plaintiff submitted an
affidavit stating that his physician told him his food poisoning was the result of the
Demiy's meal. The trial court granted summary judgment for Denny's, and the
plaintiff appealed. Farroux, at 109-110.
The appellate court affirmed, observing as follows:
A party cannot file an affidavit to contradict his own deposition testimony without any explanation for the change in the testimony, for the purpose of creating a fact issue to avoid summary judgment. If a party's own affidavit contradicts his earlier testimony, the affidavit must explain the reason for the change. Without an explanation of the change in the testimony, we assume the sole purpose of the affidavit was to avoid summary judgment. As such, it presents merely a "sham" fact issue.
Id., at 111 (fh. omitted).
This Honorable Court addressed the sham affidavit doctrine in the case of
Cantu v. Preacher, 53 S.W.3d 5 (Tex. App.-San Antonio 2001, pet. denied),
synthesizing the earlier holdings of Texas appellate courts concerning this doctrine
and stating the conclusion succinctly and well:
We conclude that a court must examine the nature and extent of the differences in the facts asserted in the deposition and the affidavit. If the differences fall into the category of variations on a theme, consistent in the major allegations but with some variances of detail, this is grounds for impeachment, and not a vitiation of the later filed document. If, on the other hand, the subsequent affidavit clearly contradicts the witness's
29 earlier testimony involving the suit's material points, without explanation, the affidavit must be disregarded and will not defeat the motion for summary judgment.
Cantu, at 10.
That SCOTT'S affidavit falls into the latter category seems too obvious to
require elaborate discussion, but a brief review and comparison should suffice.
Again, when asked whether she thought she was buying the Lot 1 waterfront
access lot in its entirety along with Lot 2, or that other people with lots in the vicinity
would have access through Lot 1, SCOTT replied: "I was—no, he [FURROW]
explained that they're—by purchasing 1104 Peggy Lane [Lot 2], I would be
purchasing a legal interest in that waterfront access lot [Lot 1]." Q: "Right. Shared
with others?" "A: I don't know." Supra, at 3-4. She testified under oath that she
"didn't at the time [or purchase of Lot 2] know who all had access to the [waterfront
access] lot", but that she didn 't believe she ever thought she had exclusive access to
the lot — rather, she believed she was purchasing a legal right or interest in and to the
•water front access lot. Supra, at 4. She testified, and then repeated, that her only
complaint against FURROW was as follows:
Q: Because isn't that your complaint against—I mean, that's the only complaint you have against Mr. Furrow as we sit here today, right? "He sold me this property and he said I had waterfront access rights and I don't." Isn't that your complaint against Mr. Furrow?
30 A: Yes.
Q: I mean, that's your only complaint against Mr. Furrow, right?
A: Yes.
Supra, at 8 (emphasis added).
Compare that candid' testimony with SCOTT'S cynical and disingenuous
attempt to "reboot" her claims and causes of action after being presented with the
recorded documentary evidence that her property did indeed enjoy waterfront access
(as shown in her "supportive affidavit"):
1. In 2006,1 purchased Lot 2 and what I believed was a one-half interest in Lot 1 (the waterfront/water access lot associated with the property I was purchasing). At the suggestion of Movant [FURROW] one year later (in 2007), I purchased Lot 3 (the adjoining vacant lot to Lot 2) directly from [grantees Denn and Barr] so as to acquire exclusive ownership of the waterfront/water access property [Lot 1].
11. Movants [FURROW and KELLER WILLIAMS] were responsible for selling property to me, which was packaged up and sold to me with the illusion of exclusivity. The illusion of exclusivity, along with Movants' failure to disclose, would be enough for the most experienced buyer to be mislead...
II Supp. C.R., Vol. 2, at 491,496. There is not the slightest attempt anywhere in this
affidavit to explain, or even to discuss, SCOTT'S miraculous "recovered memory "
of FURROW having promised "exclusive ownership " of Lot 1 through the purchase
31 of Lots 2 and 3 — or of his having "packaged" either of these lots in an "illusion of
exclusivity " — -when she had testified earlier, under oath, that she believed only that
she -was acquiring -waterfront access, not that she -was acquiring "exclusive"
•water front access.
While SCOTT made no attempt to explain the discrepancy in her affidavit
itself, her attempt to do so in her Appellant's Brief borders on the nonsensical.
Quoting the first paragraph of her affidavit in opposition to the summary judgment
motion, SCOTT states: "The evidence thus suggests Ms. Scott understood that until
she purchased the adjoining vacant lot [Lot 3] she -would share ownership of the
waterfront lot and others (who she did not kno-w) -would have access to it."
Appellant's Brief, at 18 (emphasis added). SCOTT had just quoted herself as stating,
in that paragraph, that "I purchased Lot 3 (the adjoining vacant lot to Lot 2) directly
from Defendants, Juanita Denn and D.R. Barr ("Sellers"), so as to acquire exclusive
ownership of the waterfront/water access property" (emphasis added). If she believed
she had already purchased—from Denn and Barr, the sellers of Lot 2—a one-half
interest in the "exclusive ownership of the waterfront/water access property", and that
by purchasing Lot 3 from Denn and Barr she would acquire the other one-half
interest to go with the one-half interest they had already sold her, then how could she
conceivably have believed she was sharing ownership of the waterfront access lot
32 [Lot 1] with others whom she did not know7 SCOTT'S statement makes no more
sense than any of her other arguments.
Exhibit 2 of the interlocutory summary judgment motion of FURROW and
KELLER WILLIAMS-the AJ. Grebey Subdivision No. 1 plat—clearly establishes
SCOTT'S waterfront access rights appurtenant to Lot 2 (as well as to Lot 3, in which
purchase FURROW and KELLER WILLIAMS played no part). II Supp. C.R, Vol.
1, at 197-198. SCOTT came to this realization when questioned on this very point
at her deposition. Her subsequent attempt to recast this action in terms of
"exclusivity" is meritless at best and fraudulent at worst. It should not be
countenanced by this Honorable Court. Once again, the trial court's entry of
summary judgment in favor of FURROW and KELLER WILLIAMS, as to all claims
and causes of action, was and is correct.
ISSUE NO. 2 RESTATED: SCOTT HAS FAILED TO PRESERVE ERROR AS TO THE TRIAL COURT'S GRANT OF SUMMARY JUDGMENT IN FAVOR OF APPELLEES ON THEIR COUNTERCLAIM FOR ATTORNEY'S FEES (Responsive to Appellant's Issue Nos. 3 and 4)
SCOTT further complains of the trial court's granting of summary judgment
on the counterclaim for attorney's fees of FURROW and KELLER WILLIAMS.
They note, correctly, that the summary judgment motion on the counterclaim featured
33 two grounds for recovery: first, by way of contractual attorney's fees under the
earnest money contract by which SCOTT purchased Lot 2; and second, pursuant to
Tex. Bus. & Comm. Code §17.50(c) as a sanction for a groundless/bad faith claim
brought under the DTPA. SCOTT relies chiefly on two cases—Lesieur v. Fryar, 325
S.W.Sd 242 (Tex. App.-San Antonio 2010, pet. denied) and Marker v. Garcia, 185
S.W.Sd 21 (Tex. App.-San Antonio 2005, no pet.)—as authority for her argument that
neither ground properly supports an award of fees.
Whether this argument would have merit had SCOTT properly preserved her
complaint for appellate review is a purely hypothetical question which need not
detain this Honorable Court. Rule 3 3.1 (a), Tex. R. App. P., is clear on this point:
As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion that: (A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and (B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure...
(emphasis added). As discussed supra, SCOTT'S submissions to the trial court will
be searched in vain for any suggestion to the effect that the earnest money contract
provides no basis for an award of attorney's fees to persons or entities said not to be
parties to, or third party beneficiaries of, the contract, or that the order granting
34 summary judgment on the counterclaim is deficient for having failed to include
statutory findings. These arguments may not properly be considered for the first time
on appeal. See, e.g., Watts v. Oliver, 396 S.W.3d 124, 135 (Tex. App.-Houston [14th
Dist] 2013, no pet.) (observing that except for fundamental error, appellate courts are
not authorized to consider issues not properly raised by the parties, and that
fundamental error exists in those instances "in which error directly and adversely
affects the interest of the public generally, as that interest is declared by the statutes
or Constitution of Texas, or instances in which the record affirmatively and
conclusively shows that the court rendering the judgment was without jurisdiction of
the subject matter").
Even so, and in the alternative, were this Honorable Court to take cognizance
of Appellant's complaint. Rule 44.4(a), Tex. R. App. P. provides that "[a] court of
appeals must not affirm or reverse a judgment...if: (1) the trial court's erroneous
action or failure or refusal to act prevents the proper presentation of a case to the
court of appeals; and (2) the trial court can correct its action or failure to act." Thus
this Honorable Court could remand so much of the judgment as concerns the award
of attorney's fees for corrective action by the trial court, including with regard to any
necessary findings dealing with the recover of attorney's fees under DTPA § 17.5 0(c).
35 CONCLUSION
In sum, SCOTT has presented no lawful complaint as to the attorney's fees
component of the judgment, and no persuasive complaint as to any component
thereof. There is no legitimate reason to disturb the judgment of the trial court in this
matter, and FURROW and KELLER WILLIAMS respectfully submit that it should
be affirmed in its entirety.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellees respectfully pray that
this Honorable Court affirm the judgment of the trial court herein in its entirety; and
for such other and further relief, at law or in equity, to which they might show
themselves justly entitled.
Respectfully submitted,
THORNTON, BIECHLIN, REYNOLDS & GUERRA, L.C. 100 N.E. Loop 410, Suite 500 San Antonio, TX 78216 210/342-5555; 210/525-0666 (fax) vwaters@thomtonfirm. corn
By: s/ Vaughan E. Waters Vaughan E. Waters State Bar No. 20916700 vwaters@thomtonfirm. corn
ATTORNEYS FOR APPELLEES
36 CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9, Tex. R. App. P., the undersigned certifies that:
1. The Brief ofAppellees contains 8,787 words.
2. The Brief of Appellees has been prepared in proportionally spaced typeface using Word Perfect in Times New Roman 14 point.
s/ Vauehan E. Waters Vaughan E. Waters
CERTIFICATE OF SERVICE
A tme and correct copy of the above and foregoing instrument has been forwarded to the undersigned party on the 1st day of December, 2015.
Via e-service
Mr. Frederick Junkin Andrews Kurth LLP 600 Travis St., Suite 4200 Houston^TX 77002
Attorneys for Appellant
s/Vauehan E. Waters_ Vaughan E. Waters
37 APPENDIX I 3874) VBW/IW 5/6/15 LED
MAYO? CAUSE NO. 13-1125-CV-A DEBRACRlt t Cterk. Diet Court, Ouada'lupa Oo, Tx-
STAC^Y SCOTT IN THE DISTRICT COURT
vs. GUADALUPE COUNTY, TEXAS
JUANITA DENN, D.R. BARR, LARRY FURROW, KELLER WILLIAMS LEGACY GROUP, PATRICK DENN, ROBERT RITTER, CAROL MATTHEWS, AND DOES 1 THROUGH 5, INCLUSIVB 25TH JUDICIAL DISTRICT
ORDER DENYING! PLAINTIFF'S MOTION FOR NEW TRIAL ON ATTORNEY'S FEES
On the 7th day of May, 2015 came on for consideration PlaintiflFs Motion for N(?W Trial on
Attorney's Fees. The parties appeared in person and th'ough their respective attorneys of record.
The Court, upon consideration of said motion, the response thereto and ihe arguments of counsel is
of the opinion that said motion should be, and is hereby, in all respects DENIED, 7S/^. SIGNED and ENTERED this ( ' day of May, 2015,
JUDGE PRESIDING
Ip^kt/^ o-ft-lV^
tW Oo"?*»r f^v S'frf '"'••'
^c
i^<^^ ^ ^^/-c^ j-^/ z^^7^ /^•^-^f J^&^
Order Denying flainttff's MNT on Attorney's Fees Page 1 of 1
Stacey Scott v. Larry Furrow and Keller Williams Legacy Group (Stacey Scott v. Larry Furrow and Keller Williams Legacy Group) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.