Victor Canchola Cindy Canchola v. Elieen White, ReMax Westside and Fidelity Inspection Servies

• Court: Court of Appeals of Texas
• Decided: December 30, 2004
• Docket: 14-03-00826-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed December 30, 2004

Affirmed and Memorandum Opinion filed December 30, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00826-CV

VICTOR CANCHOLA AND CINDY CANCHOLA, Appellants

V.

EILEEN WHITE, REMAX WESTSIDE, AND

FIDELITY INSPECTION SERVICES, Appellees

_________________________________________________________

On Appeal from the 155th District Court

Austin County, Texas

Trial Court Cause No. 98V-051

M E M O R A N D U M   O P I N I O N

In this appeal, we must determine whether the trial court properly granted summary judgment dismissing the claims of the buyers of a home against the seller, the seller=s listing agent, and the buyers= home inspector.  We affirm the trial court=s judgment.

I.  Factual and Procedural Background

Appellants/plaintiffs Victor and Cindy Canchola hired Stromatt & Associates, Inc. (AStromatt@) to assist them in purchasing a house located at 110 Heritage Trail, Bellville, Austin County, Texas, from Eileen White.  The listing agent, appellee/defendant Houston Shelter Corporation d/b/a ReMAX Westside (ARemax@), indicated that there was a pending offer to purchase the house.  The Cancholas asked Stromatt to act on their behalf in obtaining a contract to purchase the house from White.  Stromatt hired appellee/defendant Paul Kelly d/b/a Fidelity Inspection Services (AKelly@) to inspect the property.  Kelly=s April 27, 1996 inspection report indicated the following with regard to the roof of the house: (1) areas of missing dry pack cement that needed to be repaired; (2) no active roof leaks at the time; and (3) evidence of previous water penetration. 

According to the deposition of David Stromatt, White told Victor Canchola and him that when she bought the house in 1988, she and her husband were aware that the roof had been installed improperly.  To remedy this situation, within a year of buying the house in 1988, the Whites had all of the concrete roof tiles removed, some broken shingles replaced, and new shingles re-installed properly using felt paper and copper flashings. 

At the August 1996 closing, White delivered a Seller=s Disclosure Notice to the Cancholas.  The notice indicated that the roof had been repaired by installing copper flashing, but did not indicate that the roof had any defects from being installed improperly.

The Cancholas filed suit against White, Remax, Stromatt, and Kelly.  In their amended petition, the Cancholas alleged, among other things:

(1)       The Cancholas relied to their detriment on false, misleading, and deceptive representations made by White.

(2)       White, Remax, Stromatt, and Kelly knew and were aware that the roof of the subject property had been in need of repair for some time.

(3)       The roof was defective because it was installed improperly without using roofing felt, as disclosed in an inspection of the roof made at the request of White and her husband on October 8, 1988. 

(4)       Kelly was negligent in conducting his inspection of the house for the Cancholas.

(5)       Stromatt was acting on behalf of the Cancholas under a power of attorney.

(6)       The roof of the house leaked to such an extent that the house was continually subjected to ceiling and dry-wall damage. 

The Cancholas and Stromatt dismissed their claims against each other with prejudice.  The trial court granted the motions for summary judgment of Kelly, White, and Remax without specifying the grounds. 

II.  Issues Presented

On appeal the Cancholas present the following issues:

(1)       Did the trial court err in granting Kelly=s motion for summary judgment?

(2)       Did the trial court err in granting White=s motion for summary judgment?

(3)       Did the trial court err in granting Remax=s motion for summary judgment?

                                                   III.  Standard of Review

In reviewing a traditional motion for summary judgment, we take as true all evidence favorable to the non-movant, and we make all reasonable inferences in the non-movant=s favor.  Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).  If the movant=s motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the non-movant to raise a genuine, material fact issue sufficient to defeat summary judgment.  Id.

We review a no‑evidence summary judgment by ascertaining whether the non‑movant produced any evidence of probative force to raise a fact issue on the material questions presented.  Id.  We consider all the evidence in the light most favorable to the party against whom the summary judgment was rendered and disregard all contrary evidence and inferences.  Id.  The party moving for a no‑evidence summary judgment should state specifically the elements as to which there is no evidence.  Id. at 916B17.  A no‑evidence summary judgment is improperly granted if the non‑movant presents more than a scintilla of probative evidence to raise a genuine issue of material fact.  Id. at 917.  More than a scintilla of evidence exists when the evidence would allow reasonable and fair‑minded people to differ in their conclusions.  Id. at 917. 

IV.  Analysis

A.        Did the trial court err in granting Kelly=s motion for summary judgment?

In their first issue, the Cancholas argue the trial court erred in granting summary judgment for Kelly because there is a genuine issue of material fact as to whether Kelly negligently failed to discover defects in the roof during his inspection of the property.  The Cancholas contend that the roof was improperly installed and that a qualified inspector would have discovered the defects immediately.  In his motion for summary judgment, Kelly argued that (1) he did a complete inspection in a good and workmanlike manner; (2) the inspection revealed all existing defects; and (3) the Cancholas, through their agent Stromatt, were satisfied with his inspection.

Kelly=s motion for summary judgment is essentially a traditional motion for summary judgment asserting that Kelly, as a matter of law, was not negligent in inspecting the property.  Kelly presented the following evidence in support of his motion for summary judgment: (1) the transcript from the deposition of David Stromatt; (2) an affidavit from Kelly; and (3) an affidavit from another home inspector.  In his deposition, David Stromatt testified that Awhen [Kelly] noted those [water] spots [he] took extra special care looking at the roof because [White] disclosed there was a previous repair@ and that knowledge of this previous repair Amade us very thorough spending extra time to look at that attic to make sure [Victor Canchola] didn=t get a home with any problems from a roof.@  David Stromatt=s deposition shows that he discussed the report and its findings with Victor Canchola.

In his affidavit, Kelly states he reported the following: (1) missing dry pack cement in areas of the roof; (2) deteriorated fascia and trim boards due to moisture penetration where the outside wall met the roof; (3) evidence of previous water penetration in the ceiling of the upstairs parlor; and (4) areas of repaired sheetrock damage in the garage ceiling, in the ceiling of the downstairs entry hall, and in the upstairs pass hall that were drying at the time of inspection.  However, Kelly=s report gave no indication of active leaks.  Kelly also stated in his affidavit that there was no apparent rotten paneling in the house or structural defects in the roof.  Kelly testified further that he disclosed every defect observed.

Additionally, Kelly offered the affidavit of a competitor, Wayne Stevenson, of W. Stevenson Inspection Services.  Stevenson testified that he reviewed a copy of Kelly=s inspection report and the Cancholas= amended petition.  He stated that, in his opinion: (1) Kelly could not have known nor been aware that the roof needed repair; (2) the inspection report adequately revealed defects in the roof to the extent required in a home inspection report according to the standards of the home inspection business; (3) Kelly was not negligent and observed defects that would have been immediately evident to a qualified inspector; (4) Kelly was not negligent because he disclosed the true condition of the roof to the extent required by a home inspector in keeping with the standards of the home inspection business; and (5) Kelly did not breach any implied warranties because he performed his inspection in a good and workmanlike manner.

In their response to the motion for summary judgment, the Cancholas produced an affidavit of a roofing inspector, Michelle Herrera.^[1]  The following is the entirety of this affidavit:

My name is Michelle Herrera.  I have been in the roofing business for 7 years. I am the owner and operator of Chase Tile Roofing.  I am familiar with the type of construction used on the house owned by Dr. Victor Canchola.  I personally inspected the roof at 110 Heritage Trail, Bellville, Texas, for Dr. Victor Canchola on the 31st day of July, 1998.  The roof was not properly installed.  It must be removed and replaced.  The problem is not broken tiles.  The problem is that it was improperly installed.  Until it is replaced the roof will continue to leak and cause water damage to the interior of the house.

Any qualified inspector, examining the roof would know it must be replaced, that as it sits on the house, it is defective and poses a hazard to the interior of the house.

Herrera does not indicate any facts or reasoning explaining why the roof is improperly installed and merely concludes that any qualified inspector would have known that the roof was defective and hazardous.  This affidavit is conclusory and of no probative value.  See McIntyre v. Ramirez, 109 S.W.3d 741, 749B50 (Tex. 2003) (holding that an affidavit must be based on facts and cannot merely recite factual conclusions and that conclusory statements unsupported by facts are not proper summary-judgment evidence).  Therefore, it does not raise a genuine issue of material fact as to whether Kelly=s inspection was negligent. 

The Cancholas, in their affidavits, state that shortly after moving into the house, they discovered that the wood veneers in the family room were water-rotted to the extent that they could poke their fingers through the wood.  The Cancholas do not state whether the wood veneers were in this condition when they toured the property in May of 1996, and they do not state when they moved into the house.  Presuming under the applicable standard of review, that the Cancholas moved into the house immediately after the closing in August of 1996, it is not reasonable to infer from the rotted condition  of the veneers in August 1996, that Kelly negligently conducted his inspection on April 27, 1996, by not observing that these veneers were rotten (if they were).  The Cancholas= affidavits do not raise a genuine issue of fact as to whether Kelly negligently failed to discover roof defects during his inspection of the property in April 1996.  Accordingly, we overrule the Cancholas= first issue.

B.        Did the trial court err in granting White=s motion for summary judgment?

In their second issue, the Cancholas argue that the trial court erred in granting summary judgment for White because there is a genuine issue of material fact as to whether White made fraudulent misrepresentations to the Cancholas regarding the roof=s condition. Among other grounds, White moved for summary judgment on the ground that the Cancholas judicially admitted in their petition that Stromatt, who was acting for the Cancholas under a power of attorney, knew that the roof of the subject property had been in need of repair for some time.  White asserted that the Cancholas are bound by their agent=s alleged knowledge that the roof had been in need of repair for some time and that, therefore, White cannot be liable for fraudulently representing that the roof was not defective and not in need of repair.  The Cancholas did not challenge or address this summary-judgment ground in their summary-judgment response, nor do they challenge it on appeal.  When, as in this case, summary judgment is sought on multiple, alternative grounds, an appellant=s failure to challenge each ground asserted allows the summary judgment to be affirmed.  See Sudan v. Sudan, 145 S.W.3d 280, 289B90 (Tex. App.CHouston [14th Dist.] 2004, pet. filed).  Because the Cancholas have not challenged White=s summary judgment on this ground, they have not shown error in granting White=s motion for summary judgment.  Accordingly, we overrule the Cancholas= second issue.

C.        Did the trial court err in granting Remax=s motion for summary judgment?

In their third issue, the Cancholas argue that the trial court erred in granting summary judgment for Remax because Remax had a duty to inspect the property to determine its condition.  The Cancholas provide no analysis as to why or how this argument is supported by the evidence nor do they cite applicable legal authority, thus waiving this issue on appeal by failing to properly brief it.  See Tex. R. App. P. 38.1(h); Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 198B99 (Tex. App.CHouston [14th Dist.] 2002, no pet.).  In any event, a listing agent like Remax has no such duty to inspect.  See Sherman v. Elkowitz, 130 S.W.3d 316, 321B22 & n.7 (Tex. App.CHouston [14th Dist.] 2004, no pet.).  Accordingly, we overrule the Cancholas= third issue.

Having overruled all of the Cancholas= issues, we affirm the trial court=s judgment.

/s/        Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed December 30, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.

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^[1]  On appeal, Kelly challenges this affidavit asserting that the affiant is not an expert and that the affidavit was inadequately dated (Kelly alleges that the date on the affidavit specifies only the month and the day, but lacks the year).  However, Kelly does not cite to, and we have not found, any place in the trial court record where Kelly objected on these grounds.  We find Kelly has waived these objections.  See Grand Prairie Indep. Sch. Dist. v. Vaughn, 792 S.W.2d 944, 945 (Tex. 1990) (stating objection based on affidavit=s failure to explicitly state that it was based on personal knowledge and that witness was competent was waived by failure to object in the trial court).