Opinion
No. 05-05-00399-CV
Opinion issued August 23, 2006.
On Appeal from the 298th District Court, Dallas County, Texas, Trial Court Cause No. 03-11659-M.
Affirmed.
Before Justices WHITTINGTON, BRIDGES, and RICHTER.
MEMORANDUM OPINION
Christine Tennill appeals the trial court's summary judgment in favor of Boardwalk Fine Properties, Inc., and Shayne Cornaby. In six issues, Tennill argues the evidence precluded summary judgment on her claims of statutory fraud, common law fraud, breach of implied warranty, and alter-ego, and the trial court erred in denying her exemplary damages and attorney's fees and awarding attorney's fees to Boardwalk and Cornaby. We affirm the trial court's judgment.
In December 1999, Tennill purchased a town home from Boardwalk. Tennill considered the house to be in "excellent condition" when she bought it, and it was her opinion that the fair market value of the house was "close to what they were asking . . . or higher." Cornaby, Boardwalk's sole director, signed on behalf of Boardwalk. Prior to the sale, Cornaby renovated the town home using contractors who added a bathroom to the third floor and a loft above the third floor. Cornaby did not inquire about the need for permits because, "if there was a permit that was required, [he] assumed based on the work that [the contractors] were doing that they would have gotten the permits." As part of the sale, Cornaby provided a seller's disclosure statement. One question on the statement asked whether "there has been any work that is done that you're aware of that has not been permitted or something to that degree." Cornaby answered "No" to this question. Prior to the closing, Tennill never met Cornaby and did not have any conversations with him.
In November and December 2000, pipes leaked water into two separate areas of the garage. Both times, Tennill's home warranty company fixed the leaks for a fee of $35 per visit. The home warranty company also fixed an electrical problem that was preventing her new dishwasher from working. Tennill paid Cornaby to fix the walls damaged by the water leaks. On "four or five occasions" in the summers of 2000 and 2001, Tennill called the home warranty company to repair her air conditioning unit. On some of these occasions, the air conditioning would blow but would not cool, and one time the "gardening crew must have sliced" lines running to part of the air conditioning equipment in the back yard.
In April, May, June, July, and August 2002, Tennill was "home for short-term disability" and noticed "how quickly and how strangely [her] health deteriorated after spending three months full time" in the house. Based upon how she felt, Tennill "figured there's definitely something wrong with the house." Tennill stated she was losing hair, suffering from skin lesions, and sleeping for seventy-two-hour periods. In August 2002, Tennill made two claims with her insurance company relating to gable windows that "were separating from the rest of the house from top to bottom" and air conditioning ductwork. Tennill was concerned about the water that had been leaking from the air conditioning unit, "moldy insulation" in the back of the unit, and "the dead bird thing a few months before." Tennill "would have noticed moldy insulation . . . prior to closing," but she did not. When Tennill was on the third and fourth levels of the house, she could "feel the place moving" when an airplane flew overhead.
An insurance adjuster came out and took pictures of the windows and the air conditioning unit, but Tennill received a letter in September denying her claims. After her claims were denied, Tennill did not call a contractor or plumber or other service provider to check the windows or air conditioning because she "didn't know if they were problems." In November 2002, Tennill spoke with a supervisor at her insurance company, and he "offered to have an HVAC person come out" but "he never scheduled them to come out." Tennill spoke with another adjuster who told her the insurance company needed a full plumber's report. On November 27, 2002, Tennill had a plumber speak with an adjuster at the insurance company. In December, Tennill received a letter from the insurance company asking Tennill "to submit to an exam under oath." However, the insurance company had still taken no action on either insurance claim.
In December 2002, Tennill moved out of the house. In her deposition, Tennill testified that, as of May 2004, the leak remained unfixed, although "it doesn't leak inside the property. And only on occasion, it leaks inside the garage." In January 2003, the water was turned off at the house, and Tennill "just let the bills go." On October 31, 2003, Tennill filed the underlying suit against Boardwalk, Cornaby, Cornaby's wife, the realtor involved in the sale of the home, and the realtor's employee. At various times during the lawsuit, Tennill non-suited various parties until only Boardwalk and Cornaby remained. In July 2004, the house was foreclosed on and sold at public auction. On February 18, 2005, the trial court granted Boardwalk's no evidence motion for summary judgment. This appeal followed.
In her first, second, third, and fourth issues, Tennill argues the evidence precluded summary judgment on her claims of statutory fraud, common law fraud, breach of implied warranty, and alter-ego. Because a no-evidence motion for summary judgment is essentially a pretrial directed verdict, we apply the same legal sufficiency standard in reviewing a no-evidence judgment as we apply in reviewing a directed verdict. Espalin v. Children's Med. Ctr. of Dallas, 27 S.W.3d 675, 683 (Tex.App.-Dallas 2000, no pet.). 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 as to the element on which the motion is based. Vallance v. Irving C.A.R.E.S., Inc., 14 S.W.3d 833, 837 (Tex.App.-Dallas 2000, no pet.).
Here, the record shows Tennill considered the house to be in "excellent condition" when she bought it in December 1999, and it was her opinion that the fair market value of the house was "close to what they were asking . . . or higher." Prior to the sale, Cornaby renovated the town home using contractors who added a bathroom to the third floor and a loft above the third floor. In November and December 2000, nearly a year after she bought the house, pipes leaked water into two separate areas of the garage. In the Spring and Summer of 2002, Tennill stayed home on disability and felt that her health was affected by the house, though the record contains no medical evidence the house caused any illness. After an ongoing dispute with her insurance company over whether the house needed repairs, the insurance company did not pay Tennill's claim. Tennill did not cause any repairs to be done on the intermittent water leaks which did not leak inside the residence but "on occasion, it leak[ed] inside the garage." Instead, Tennill moved out of the house and "just let the bills go." The house was foreclosed on in July 2004.
Each of Tennill's claims against Boardwalk and Cornaby require that she establish she suffered damages as a result of their conduct. See Reardon v. LightPath Techs., Inc., 183 S.W.3d 429, 442 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (claims for fraud, statutory fraud, and negligent misrepresentation all have essential element of damages); Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 853 (Tex.App.-Fort Worth 2005, no pet.) (one element of breach of implied warranty claim is that alleged defect proximately caused injuries for which plaintiff seeks damages); Gallagher v. Bintliff, 740 S.W.2d 118, 119 (Tex.App.-Austin 1987, writ denied) (allegation that one entity is alter ego of another is not a cause of action but means of imposing liability on underlying cause of action). However, Tennill offered no proof of damages in the form of evidence of the home's value or diminution in value attributable to Boardwalk or Cornaby. See Frey v. Martin, 469 S.W.2d 316, 317 (Tex.App.-Dallas 1971, writ ref'd n.r.e.).
Even assuming, as set forth in Tennill's affidavit, that she "relied upon the representations of the Cornabys in the purchase of the property," there is no evidence that this reliance caused her any damage. Further, Tennill's own testimony demonstrates that the property was in "excellent condition" when she purchased it, and the first complaint she raises relates to a water leak nearly a year later. In effect, none of Tennill's complaints relate to Cornaby's addition of the bathroom and loft on the third floor. Finally, because the home was lost through foreclosure, any deficiencies in Boardwalk's or Cornaby's work on the house never impacted the value of the property to Tennill because there is no evidence the construction of the bathroom or the loft contributed in any way to Tennill's decision to move out of the house, "let the bills go," and allow a foreclosure to proceed. See Holder-McDonald v. Chicago Title Ins. Co., 188 S.W.3d 244, 250 (Tex.App.-Dallas 2006, no pet.) (plaintiffs' claim title company failed to convey easement did not contribute to plaintiffs' failure to make mortgage payments and did not result in deficiency at foreclosure sale; therefore, absence of easement never impacted property's value). Accordingly, we conclude Tennill failed to produce a scintilla of evidence that Boardwalk or Cornaby acted in a way that damaged her, and the trial court correctly entered a no-evidence summary judgment in their favor. See Vallance, 14 S.W.3d at 837. We overrule Tennill's first, second, third, and fourth issues.
In her fifth and sixth issues, Tennill argues the trial court erred in denying her claims for exemplary damages and attorney's fees and awarding attorney's fees to Boardwalk and Cornaby. Exemplary damages may be awarded only if the claimant proves by clear and convincing evidence that the harm with respect to which the claimant seeks recovery results from fraud, malice, or gross negligence. Tex. Civ. Prac. Rem. Code Ann. § 41.003(a) (Vernon Supp. 2006). Where a claim arises out of a contract, the "prevailing party" can recover attorney's fees. See Tex. Civ. Prac. Rem. Code Ann. § 38.001(8) (Vernon 1997); F.D.I.C. v. Graham, 882 S.W.2d 890, 900 (Tex.App.-Houston [14th Dist.] 1994, no writ). A prevailing party is one of the parties to a suit who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not to the extent of its original contention. F.D.I.C., 882 S.W.2d at 900. Here, Tennill failed to establish her entitlement to any damages, including exemplary damages. See Tex. Civ. Prac. Rem. Code Ann. § 41.003(a) (Vernon Supp. 2006). Further, Boardwalk and Cornaby were the prevailing parties in successfully defending against Tennill's claims. See F.D.I.C., 882 S.W.2d at 900. Accordingly, the trial court did not err in denying Tennill's claims for exemplary damages and attorney's fees and awarding attorney's fees to Boardwalk and Cornaby. We overrule Tennill's fifth and sixth issues.
We affirm the trial court's judgment.