Opinion
No. 14-07-00265-CV
Opinion filed December 11, 2008.
On Appeal from the 334th District Court Harris County, Texas, Trial Court Cause No. 2005-46499.
Panel consists of Justices YATES, ANDERSON, and BROWN.
MEMORANDUM OPINION
In this lease dispute case, appellant Jeanenne Loewe, individually and d/b/a The Elite Salon of 1960, appeals the summary judgment granted in favor of appellees Commons at Willowbrook, Inc., LB Realty Advisors, Inc., and Institutional Property Managers, Inc. on numerous grounds. We affirm.
I. BACKGROUND
Trammel Crow was the leasing agent for the Commons at Willowbrook shopping center, which was owned by Commons at Willowbrook, Inc. ("Willowbrook"). In 1999, Loewe contacted Matthew Keener, a real estate agent with Trammel Crow, to inquire about leasing a space in the shopping center in which to open a hair salon. Following discussions with Keener, Loewe executed a lease in March 2000. Institutional Property Managers, Inc. ("IPM") executed the lease as property manager on behalf of Willowbrook, and LB Realty Advisors, Inc. ("LB") was Willowbrook's asset manager. After encountering financial difficulties, Loewe closed her hair salon and vacated the premises in December 2004.
Loewe subsequently executed three lease amendments in June 2000, October 2001, and October 2003, respectively.
In July 2005, Loewe filed her Second Amended Petition against appellees and Trammel Crow, alleging common law fraud, statutory fraud, negligence per se, and violations of the Texas Real Estate License Act ("RELA") and the Texas Deceptive Trade Practices Act ("DTPA"). All of Loewe's claims were based on her allegations that (1) from 1999 until sometime after she vacated the leased premises in 2004, she believed that Keener was representing her interests in their discussions concerning her lease, (2) the RELA required Keener to disclose to Loewe that he represented the landlord, Willowbrook, in the transaction, but Keener did not disclose to her that he represented Willowbrook or that he did not represent her, (3) the RELA required Keener to provide Loewe a further written notice of general information regarding real estate agency relationships (Texas Real Estate Commission ["TREC"] Form 3), but Loewe was never provided any such written notice, (4) neither Trammel Crow nor appellees was licensed to conduct real estate transactions in Texas, (5) by conducting real estate transactions without being properly licensed, failing to disclose Keener's dual agency relationship, and failing to provide the agency disclosure notice, all in violation of RELA, appellees misrepresented and concealed material facts, violated the DTPA, and caused the lease to be void, (6) Loewe would not have executed the lease without her own agent if she had known that Keener was only representing the interests of the landlord, and (7) due to the economics of her business and the "landlord-favorable" terms of the lease, Loewe was forced to close her hair salon, resulting in damages.
The RELA has been re-codified since the operative facts of this case occurred. See Act of May 22, 2001, 77th Leg., R.S., ch. 1421, § 13, 2001 Tex. Gen. Laws 4570, 5020. The parties do not suggest that there are any differences between the former and current versions of the statutes that are germane to this appeal. Thus, for ease of reference, we will cite to the codified version. See TEX. OCC. CODE ANN. § 1101.558 (Vernon 2004).
In her Original Petition filed July 21, 2005, Loewe asserted claims of common law fraud/fraudulent inducement, statutory fraud, violations of the Texas Deceptive Trade Practices Act, common law negligence, negligent misrepresentation, gross negligence, negligence per se, breach of fiduciary duty, and respondeat superior liability.
Section 1101.558(b)(1) of the Texas Occupation Code provides that "[a] license holder who represents a party in a proposed real estate transaction shall disclose, orally or in writing, that representation at the time of the license holder's first contact with . . . another party to the transaction."
On August 4, 2006, the trial court granted summary judgment in favor of Trammel Crow on Loewe's claims. Thereafter, the court severed Loewe's claims against Trammel Crow from those asserted against appellees and denied Loewe's Motion for New Trial. After Loewe appealed the summary judgment granted in favor of Trammel Crow, a panel of this court affirmed the lower court's judgment in Loewe v. Trammel Crow Co., No. 14-06-00971-CV, 2007 WL 4896850 (Tex.App.-Houston [14th Dist.] Nov. 15, 2007, pet. denied) (mem. op., not designated for publication).
Trammel Crow moved for summary judgment on no-evidence and various traditional summary judgment grounds. The trial court granted the motion without specifying the basis on which it was granted.
On December 4, 2006, appellees filed their First Amended Motion for Summary Judgment in which they asserted no-evidence as well as various traditional summary judgment grounds. On January 4, 2007, appellees filed their First Amended Motion to Strike Plaintiff's Summary Judgment Evidence. On January 18, 2007, the trial court granted both of appellees' motions. As to summary judgment on Loewe's claims, the court stated in its order,
Although the Court finds that there is a genuine issue of material fact concerning Movants' compliance with the Texas Real Estate Licensing [sic] Act, the Court determines that there is no genuine issue of material fact on Movants' affirmative defense to that claim C the expiration of the statute of limitations and that Movant has eliminated all genuine issues of material fact regarding the elements of the discovery rule and fraudulent concealment. As to all other claims, the Court grants both the no-evidence motion and the traditional motion for summary judgment.
On February 16, 2007, Loewe filed a Motion for New Trial. However, before the court ruled on her motion, Loewe filed the instant appeal.
II. STANDARD OF REVIEW
To be entitled to traditional summary judgment, a defendant must conclusively negate at least one essential element of each of the plaintiff's causes of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Brown v. Hearthwood II Owners Ass'n, 201 S.W.3d 153, 159 (Tex.App.-Houston [14th Dist] 2006, pet. denied). In reviewing a traditional summary judgment, we examine the entire record in the light most favorable to the non-movant, indulging every reasonable inference and resolving any doubts against the motion. Yancy v. United Surgical Partners Int'l, Inc., 236 S.W.3d 778, 782 (Tex. 2007). When a trial court's order granting summary judgment does not specify the grounds upon which it was granted, we will affirm the judgment if any of the theories advanced are meritorious. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
A no-evidence motion for summary judgment must be granted if: (1) the moving party asserts that there is no evidence of one or more specified elements of a claim or defense on which the adverse party would have the burden of proof at trial and (2) the respondent produces no summary judgment evidence raising a genuine issue of material fact on those elements. See TEX. R. CIV. P. 166a(i). In reviewing a no-evidence summary judgment, we apply the same standard, but consider only the evidence contrary to the motion. See City of Keller v. Wilson, 168 S.W.3d 802, 825 (Tex. 2005).
III. ANALYSIS
A. Summary Judgment Evidence
We first address Loewe's eighth issue in which she contends the trial court erred in granting appellees' First Amended Motion to Strike Plaintiff's Summary Judgment Evidence. Specifically, she complains about the exclusion of Exhibits 4 and 5 (website printouts of TREC Licensee Information Searches), Exhibit 9 (Loewe's Affidavit), Exhibit 12 (copy of LB's Lease Application) and Exhibit 17 (copy of a letter dated December 7, 2004 from Loewe's attorney to appellees). Appellees' response is two-fold. First, they argue that Loewe has failed to preserve the issue for review by failing to object in the trial court to the exclusion of the evidence. Second, they argue that the trial court nevertheless properly struck Loewe's summary judgment evidence because (1) the affidavit contained inadmissible legal conclusions, hearsay, and speculation and contradicted Loewe's deposition testimony and (2) the remaining exhibits constituted unauthenticated hearsay.
"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. . . ." TEX. R. APP. P. 33.1. We review the trial court's decision to exclude evidence under an abuse of discretion standard. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995). However, an appellant bears the burden to bring forth a sufficient record showing the trial court abused its discretion. Cruikshank v. Consumer Direct Mortgage, Inc., 138 S.W.3d 497, 499 (Tex.App.-Houston [14th Dist.] 2004, pet. denied).
Here, the record reflects that Loewe did not file a response to appellees' motion to strike. Further, although she filed a motion for new trial, Loewe did not object to the striking of her summary judgment evidence in the motion or otherwise request the court to reconsider its ruling. By failing to object in the trial court, Loewe has waived the right to complain on appeal about the trial court's ruling. See id. (concluding appellant waived complaint on appeal by failing to file any response to defendant's motion to strike, objecting to trial court's ruling, or requesting trial court to reconsider its decision to strike various portions of his affidavit); Inglish v. Prudential Ins. Co., 928 S.W.2d 702, 705 (Tex.App.-Houston [1st Dist.] 1996, writ denied) (holding that because appellants never requested opportunity to amend summary judgment responses, appellants could not complain on appeal of trial court's ruling sustaining objections and special exceptions to their affidavit); Brooks v. Sherry Lane Nat'l Bank, 788 S.W.2d 874, 878 (Tex.App.-Dallas 1990, no writ) (holding appellant waived issue on appeal by not objecting to, or protesting, the motion to strike before trial court). Loewe's eighth issue is overruled.
In her Reply Brief, Loewe argues that appellees' objections to her summary judgment evidence were "of no effect" because the case did not go to trial. She argues that she was not required to do anything following the granting of summary judgment other than file an appeal, and that her appeal is her first opportunity to complain of the exclusion of her summary judgment evidence. Loewe cites no authority for her position, nor are we aware of any. Further, her argument is contrary to the well-established rule that a party must present to the trial court a "timely request, objection, or motion" in order to preserve a complaint for appellate review. See TEX. R. APP. P. 33.1(a).
B. Fraud and RELA Claims
In issues one through five, ten, and eleven, Loewe makes various arguments related to the summary judgment granted in favor of appellees on her fraud and RELA claims. Because these arguments are intertwined, we address them together.
1. Statute of Limitations
In their motion for summary judgment, appellees argued that Loewe's claims for common law fraud, statutory fraud, RELA violations, violation of the DTPA, and negligence per se were each barred by the applicable statutes of limitations. In its order, the trial court granted summary judgment to appellees on Loewe's RELA claim based on their statute of limitations defense. The court further determined that there were no genuine issues of material fact regarding the elements of the discovery rule or fraudulent concealment. As to Loewe's other claims, including statutory and common law fraud, the trial court granted summary judgment on both no-evidence and traditional grounds.
A claim brought under the RELA is subject to a two-year statute of limitations. See TEX. OCC. CODE ANN. § 1101.605 (Vernon 2004). A fraud claim is subject to a four-year statute of limitations. TEX. CIV. PRAC. REM. CODE ANN. § 16.004(a)(4) (Vernon 2002); Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 615, 617 (Tex. 2007). For limitations purposes, a cause of action accrues when a wrongful act causes some legal injury, even if the injury is not discovered until later and even if all of the resulting damages have not yet occurred. See S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996); Seureau v. ExxonMobil Corp., No. 14-07-00176-CV, ___ S.W.3d ___, 2008 WL 4584961, at *14 (Tex.App.-Houston [14th Dist.] Oct. 16, 2008, no pet. h.). Stated differently, a cause of action generally accrues when facts come into existence which authorize a claimant to seek a judicial remedy. Seureau, 2008 WL 4584961, at *14.
Here, Loewe's fraud and RELA claims center on her allegations that Keener failed to disclose his dual agency, was not a licensed broker, and failed to provide her with an agency disclosure notice during negotiation of the lease. The record reflects that Loewe signed the lease on March 10, 2000 and thus, her claims accrued on that date. Loewe, however, did not file her lawsuit until August 5, 2005Cmore than five years after she signed the lease. As such, her fraud and RELA claims were filed after expiration of the applicable statutes of limitations.
2. Deferral of Claims
Loewe also argues that the court erred in granting summary judgment because the discovery rule and doctrine of fraudulent concealment deferred the accrual of her fraud and RELA causes of action. Appellees contend that Loewe failed to carry her burden to show that either rule applies here.
a. Discovery Rule
Accrual of a cause of action is deferred in two types of cases: those involving the discovery rule and those involving fraud or fraudulent concealment. S.V., 933 S.W.2d at 6. In the former, "the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable." Id. (quoting Computer Assocs. Int'l v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1996)). An injury is inherently undiscoverable if it is by nature unlikely to be discovered within the applicable limitations period despite due diligence. Wagner Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734-35 (Tex. 2001); S.V., 933 S.W.2d at 7. An injury is objectively verifiable if the facts upon which liability is asserted are demonstrated by direct, physical evidence, expert testimony, or is otherwise indisputable. See S.V., 933 S.W.2d at 7.
Loewe's brief has not cited, nor have we found, any evidence demonstrating why the nature of her alleged injury was such that it was unlikely to be discovered despite due diligence. In her summary judgment response, Loewe argues only that her affidavit is the sole evidence showing when she discovered the alleged misrepresentations and concealment and that she was unaware of them until after she closed her hair salon. We further note that the trial court struck Loewe's affidavit from her summary judgment response. Notwithstanding, even if the affidavit could be considered, it does not explain how she found out about the alleged fraud or, more importantly, why her alleged injury was unlikely to be discovered within two years of signing the lease. Accordingly, Loewe's summary judgment response fails to raise a fact issue with respect to the discovery rule.
b. Fraudulent Concealment
Similarly, fraudulent concealment defers the accrual of a cause of action until the plaintiff discovers or should have discovered the deceitful conduct or facts giving rise to the cause of action. Earle v. Ratliff, 998 S.W.2d 882, 888 (Tex. 1999). The fraudulent concealment doctrine defers the accrual of a cause of action because "a person cannot be permitted to avoid liability for his actions by deceitfully concealing wrongdoing until limitations has run." S.V., 933 S.W.2d at 6. For the doctrine to apply, the plaintiff must prove the defendant (1) had actual knowledge of the wrong, (2) had a fixed purpose to conceal the wrong, and (3) did conceal the wrong from the plaintiff. See Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001); Quigley v. Bennett, 256 S.W.3d 356, 360-61 (Tex.App.-San Antonio 2008, no pet.).
A party asserting fraudulent concealment as an affirmative defense to the statute of limitations has the burden to raise it in response to the summary judgment motion and to come forward with summary judgment evidence raising a fact issue on each element of the fraudulent concealment defense. KPMG Peat Marwick v. Harrison Co. Hous. Fin. Corp., 988 S.W.2d 746, 749 (Tex. 1999). As to the first element, Loewe argues that appellees had actual knowledge when they failed to produce a RELA form and a valid Texas real estate license by Trammel Crow. Even assuming this is true, this does not demonstrate that appellees had actual knowledge of the alleged wrongs. With respect to the second element, Loewe's argument that appellees purposefully concealed Keener's alleged undisclosed dual agency and failure to be licensed because "it would conclusively prove that [] that was their purpose" is circular and simply does not raise a fact issue as to this element. As to the third element, Loewe's assertion that "[b]ecause the appellees cannot explain their actions, it is obvious they remained silent when they had a duty to speak" does not support her contention that appellees concealed the alleged wrongs. Moreover, Loewe's summary judgment response does not even appear to address the rule of fraudulent concealment or otherwise identify evidence supporting the elements of this rule. See id. (party asserting fraudulent concealment as affirmative defense to statute of limitations bears burden of raising defense in response to summary judgment motion).
In sum, Loewe did not carry her burden of adducing summary judgment evidence raising a fact issue with respect to the discovery rule or fraudulent concealment to avoid application of the statutes of limitations. We conclude the trial court properly granted summary judgment in favor of appellees on Loewe's fraud and RELA claims. Having found that the trial court properly granted summary judgment on Loewe's fraud and RELA claims on the limitations issue, it is unnecessary to address Loewe's arguments regarding the other summary judgment grounds. We overrule issues one through five, ten, and eleven.
C. DTPA and Negligence Per Se Claims
In issues six and seven, Loewe contends that the trial court erred in granting summary judgment to appellees on her DTPA claim. In issue nine, she argues that the trial court erred in not permitting her to recover under the doctrine of negligence per se.
When a trial court's order granting summary judgment does not specify the grounds upon which it was granted, we will affirm the judgment if any of the theories advanced are meritorious. See Carr, 776 S.W.2d at 569. Here, the trial court granted summary judgment on Loewe's DTPA and negligence per se claims without specifying the particular ground. In its motion for summary judgment, appellees argued, among other things, that Loewe's DTPA and negligence per se claims were subject to a two-year statute of limitations. See TEX. BUS. COM. CODE ANN. § 17.565 (Vernon 2002); TEX. CIV. PRAC. REM. CODE ANN. § 16.003(a) (Vernon 2002). As previously discussed, Loewe signed the lease on March 10, 2000, and therefore, her claims accrued on that date. Loewe, however, did not file her lawsuit until August 5, 2005Cmore than five years after she signed the lease. As such, her DTPA and negligence per se claims are barred by the applicable statutes of limitations.
A review of the record reveals that Loewe's DTPA and negligence per se claims are based on the same allegations as those underlying her RELA and fraud claims, namely, the alleged non-disclosures concerning the agency relationship and the alleged lack of licensing. We concluded above that Loewe failed to carry her burden of adducing summary judgment evidence raising a fact issue with respect to the discovery rule or fraudulent concealment to avoid application of the statute of limitations to her fraud and RELA claims. Because the same allegations underlie Loewe's DTPA and negligence per se claims, we likewise find that neither the discovery rule nor the doctrine of fraudulent concealment defers either cause of action. We conclude the trial court properly granted summary judgment in favor of appellees on Loewe's DTPA and negligence per se claims. Because we find the trial court properly granted summary judgment on the limitations issue, it is unnecessary to address Loewe's arguments regarding the other summary judgment grounds. We overrule issues six, seven, and nine.
In support of her DTPA claim, Loewe's brief also refers to the portion of her affidavit stating that Keener told her that the price and other terms of her lease were the best that could be obtained in the area and similar to what other shopping centers in the area were charging. However, her summary judgment response did not reference this statement from her affidavit. See KPMG Peat Marwick, 988 S.W.2d at 748 (noting that non-movant must adduce summary judgment evidence raising fact issue in avoidance of statute of limitations). Moreover, her affidavit was struck by the trial court.
D. Breach of Fiduciary Duty
In issue twelve, Loewe argues that appellees owed her a fiduciary duty which they breached when they allegedly violated the RELA. Appellees contend that because Loewe never raised a breach of fiduciary duty claim in her petition, summary judgment response, or motion for new trial, she is precluded from raising it for the first time on appeal.
In her reply brief, Loewe claims that she was not required to plead the existence of a fiduciary duty. She does not cite any authority for this proposition, not are we aware of any. A review of the record reveals that Loewe did not assert a breach of fiduciary duty claim in her Second Amended Petition. Further, while she discussed the duties owed by a real estate licensee in her summary judgment response, it is solely in the context of her RELA claims. See Mayfield v. Lockheed Eng'g Sci. Co., 970 S.W.2d 185, 187 n. 2 (Tex.App.-Houston [14th Dist.] 1998, pet. denied) (noting appellate court was precluded from reviewing issue raised in brief that was never asserted in amended petition and was contradicted by deposition testimony). In light of our disposition of her RELA claim, and her failure to assert a breach of fiduciary duty claim in her petition, Loewe's argument is without merit. Issue twelve is overruled.
We affirm the trial court's judgment.