Title Agency of Texas, Inc. v. Arellano

835 S.W.2d 750, 1992 Tex. App. LEXIS 1948, 1992 WL 173607
CourtCourt of Appeals of Texas
DecidedJuly 23, 1992
DocketNo. C14-91-00831-CV
StatusPublished
Cited by2 cases

This text of 835 S.W.2d 750 (Title Agency of Texas, Inc. v. Arellano) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Title Agency of Texas, Inc. v. Arellano, 835 S.W.2d 750, 1992 Tex. App. LEXIS 1948, 1992 WL 173607 (Tex. Ct. App. 1992).

Opinion

OPINION

JUNELL, Justice.

Title Agency of Texas, Inc. appeals from a judgment finding appellant negligent and in violation of the Texas Deceptive Trade Practices Act and awarding appellee $22,-000.00 in actual damages, $2,000.00 in additional damages, and attorney’s fees. Appellant brings eight points of error. Because we find no evidence supporting the trial court’s liability findings, we reverse and render judgment that appellee take nothing.

[752]*752In January 1988, appellee entered into an earnest money contract to purchase a house. This sale closed in March 1988. Based upon a tax certificate from Dual H Tax Service showing the prior years’ tax information, appellant prepared a settlement statement reflecting the amount of monthly escrow amounts required by Commonwealth Mortgage to be deposited by appellee at the closing. This document stated that the prorated amounts were based on figures for the prior year or were estimates for the current year. Appellee signed this document, certifying that he had reviewed it and received a copy of it.

Appellee testified that during closing he asked an agent of appellant what his monthly payment would be. According to appellee, this agent stated that appellee’s monthly payment would include approximately $839.00 for principal and interest and $136.00 for escrow. After the closing, appellant sent the closing documents to Commonwealth Mortgage, who then determined the amount of payments for the first year. These monthly payments included an escrow amount identical to the amount represented by appellant at closing. Ap-pellee paid this amount until approximately one year later, when appellee learned that his taxes would be $140.00 higher per month. Appellee filed suit, alleging violations of the DTPA and the Insurance Code, breach of contract, and negligence.

Following a bench trial, the court rendered judgment in favor of appellee. In its Findings of Fact and Conclusions of Law, the trial court found that appellant had misrepresented the amount of the required monthly tax escrow payment, that appellant was negligent in failing to determine correctly the ad valorem taxes that would be due on the property, and that this negligence was a proximate cause of appellee’s damages. The trial court also found that appellant made misrepresentations about its services and failed to disclose information known at the time of the transaction, that his failure was intended to induce ap-pellee to enter into the transaction, and that appellee would not have entered into the transaction had appellant disclosed this information. The trial court found that this conduct was a violation of the DTPA and was a producing cause of appellee’s damages; however, the trial court refused to find that the conduct was committed knowingly.

In point of error one, appellant challenges the legal and factual sufficiency of the evidence supporting the trial court’s finding that appellant’s conduct was the proximate and producing cause of damage to appellee. In point of error two, appellant challenges the legal and factual sufficiency of the evidence supporting the trial court’s findings regarding liability for negligence.

II] Where a party attacks the legal sufficiency of an adverse finding, we must consider only the evidence and inferences that tend to support the finding, disregarding all contrary evidence and inferences. Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990). If there is any evidence of probative force supporting the finding, we must uphold it. Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex.1989).

Where a party challenges the factual sufficiency of the evidence, we must consider all of the evidence supporting and contrary to the finding. Plas-Tex, Inc. v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). We may then set aside the finding only if the evidence is too weak to support it or if it is so against the overwhelming weight of the evidence that it is manifestly unjust and clearly wrong. See Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

Appellant first challenges the findings regarding proximate cause. “Proximate cause” is “that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred.” 1 State Bar op Texas, Texas Pattern Jury Charges PJC 2.04 (1987). To be a proximate cause, the act or omission must also “be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom.” Id. (emphasis in original).

[753]*753Appellant contends that its actions could not have been a proximate cause of appellee’s damages because the increase in taxes was the result of tax calculations by the taxing authority for subsequent years and not the result of appellant’s actions. Appellant further argues that its only duty at closing was to calculate the prorations for taxes for the current year and that no breach of this duty occurred. Appellant cites Bykowicz v. Pulte Home Corp., 950 F.2d 1046 (5th Cir.1992), petition for cert, filed, 60 U.S.L.W. 3843 (U.S. May 27, 1992) (No. 91-1910) in support of its assertion of no causation. In Bykowicz, the plaintiffs had bought homes from the defendant. Id. at 1048. The plaintiffs had received an “Investment Quotation” from representatives of defendant which listed monthly principal, interest and insurance payments, and monthly property tax escrow payments. Id. The investment quotation contained a statement that the information was estimated and was based on current prices and interest rates which were subject to change without notice. Id. The quotation also stated that taxes and insurance were estimated. Id. Plaintiffs’ property taxes subsequently increased. Id. at 1049.

Based on their claim the defendants incorrectly calculated the tax estimates, the Bykowicz plaintiffs brought suit alleging negligence, gross negligence, and violations of the DTPA and of § 27.01 of the Texas Business and Commerce Code (regarding fraud in real estate transactions). Id. The trial court entered judgment on the verdict in favor of plaintiffs, but the Fifth Circuit reversed and rendered judgment in favor of the defendants. Id. at 1049-50. The Fifth Circuit first observed that the tax estimates related only to the year in which they were made and not to subsequent years. Id. at 1054. The court also noted that plaintiffs did not allege injuries for the year in which the tax estimates were prepared. Id. Furthermore, plaintiffs were on notice that the tax information was subject to change. Id. Reappraisals of the properties, and not the defendant’s tax calculations resulted in the tax increases. Id. Thus, the court held that no evidence supported a finding of proximate cause. Id.

In this case, appellant prepared a document reflecting settlement charges to be paid by the buyer or the seller at closing.

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Bluebook (online)
835 S.W.2d 750, 1992 Tex. App. LEXIS 1948, 1992 WL 173607, Counsel Stack Legal Research, https://law.counselstack.com/opinion/title-agency-of-texas-inc-v-arellano-texapp-1992.