Hernandez v. Vazquez

656 S.W.3d 589

Alejandro HERNANDEZ, Appellant,

v.Victor VAZQUEZ, Appellee.

No. 08-21-00158-CV

Court of Appeals of Texas, El Paso.

November 8, 2022

ATTORNEY FOR APPELLANT: Alejandro Hernandez, P.O. Box 13734, El Paso, TX 79913.

ATTORNEY FOR APPELLEE: Brian C. Lopez, Lopez Law Group PLLC, 1502 Augusta Dr., Ste. 100, Houston, TX 77057.

Before Rodriguez, C.J., Alley, J., and Marion, C.J., (Ret.) sitting by assignment

OPINION

SANDEE MARION, Chief Justice (Ret.) Appellant, a prospective home buyer, sued Appellee, the homeowner's listing agent, for failing to forward his offers to purchase to the homeowner.¹ The trial court granted no-evidence summary judgment. Appellant urges summary judgment was improper. We affirm the trial court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant, Alejandro Hernandez, was renting a home that was foreclosed. After discovering the home had been foreclosed, Hernandez made attempts to purchase the home through the new owner's listing agent, Victor Vazquez, Appellee. Hernandez claims he made several verbal offers to purchase the home, but Vazquez never submitted the offers to the new owner. Hernandez asserts Vazquez misrepresented to him that the offers had not been accepted when, in fact, Vazquez had never forwarded them. Hernandez contends because of Appellee's failure to forward the offers, he was deprived of the opportunity to purchase the property, evicted, and he incurred significant relocation expenses.

Hernandez sued for negligence, negligence per se, common-law fraud, negligent misrepresentation, and exemplary damages. About a year later, Vazquez moved for no-evidence summary judgment. After a hearing, the trial court granted Vazquez's motion, stating "Victor Vazquez's No Evidence Summary Judgment is hereby GRANTED."

In the summary judgment order, the trial court deferred ruling on Vazquez's request for attorney's fees and Hernandez appealed. This court dismissed the appeal for lack of jurisdiction because the trial court's order was not final, having not resolved the claim for attorney's fees. See Hernandez v. Vazquez , No. 08-18-00223-CV, 2020 WL 6867065 (Tex. App.—El Paso Nov. 23, 2020, no pet.) (mem. op.). On remand, the trial court entered a final judgment disposing of the attorney's fees issue and incorporating the previous no-evidence summary judgment order. Hernandez appeals from that final judgment.

STANDARD OF REVIEW

An appellate court reviews a trial court's granting of summary judgment de novo.

Herrera v. Resignato , 621 S.W.3d 835, 840 (Tex. App.—El Paso 2021, no pet.) (citing Merriman v. XTO Energy, Inc. , 407 S.W.3d 244, 248 (Tex. 2013) ).

Vazquez moved for summary judgment against all Hernandez's claims on no-evidence grounds. In a no-evidence motion, the movant claims the non-movant lacks any evidence on one or more of the elements essential to its cause of action, and summary judgment is proper when the non-movant fails to produce sufficient evidence to raise an issue of fact on each element challenged on which it has the burden of proof. Herrera , 621 S.W.3d at 841 (citing TEX. R. CIV. P. 166a(i) and Hamilton v. Wilson , 249 S.W.3d 425, 426 (Tex. 2008) (per curiam) ). When the nonmovant offers more than a scintilla of probative evidence in support of the challenged elements, a fact issue is presented. Herrera , 621 S.W.3d at 841 (citing King Ranch v. Chapman , 118 S.W.3d 742, 751 (Tex. 2003) ). A nonmovant is not required to present all their proof in response to a no-evidence motion, but they must present countervailing evidence that raises a genuine issue of material fact on the challenged elements. Herrera , 621 S.W.3d at 840 (citing Sw. Elec. Power Co. v. Grant , 73 S.W.3d 211, 215 (Tex. 2002) ).

DISCUSSION

Hernandez, who is pro se, complains in one issue that the trial court abused its discretion in granting a no-evidence summary judgment. Hernandez contends Vazquez improperly attached evidence to his no-evidence motion, to which he objected, and he raises objections to that evidence again on appeal. Because Vazquez styled his motion as a no-evidence motion and the court granted a no-evidence summary judgment, we will review the trial court's judgment as a no-evidence determination, not considering Vazquez's evidence unless it creates a fact question. See Binur v. Jacobo , 135 S.W.3d 646, 651 (Tex. 2004).

Many of Hernandez's arguments in response to the motion for summary judgment are that the motion fails to specifically challenge the evidentiary support for an element of his claims, alleging the motion in large part is conclusory and legally insufficient as a matter of law. He relies on Callaghan Ranch, Ltd. v. Killam , 53 S.W.3d 1, 3 (Tex. App.—San Antonio 2000, pet. denied), for the proposition that conclusory motions or general no-evidence challenges are legally insufficient as a matter of law. Callaghan does make those statements, but it goes on to quote the motion in question, which made a very broad allegation that the plaintiffs could not demonstrate any evidence to support the declaratory judgment previously granted. Id. That motion did not state the elements of the underlying causes of action of which there was no evidence. Id. at 4. The Callaghan court found that motion to be insufficient as a matter of law. Id.

Although Rule 166a(i) provides the authority for filing a no-evidence motion for summary judgment, it does not give a format practitioners should follow when drafting one. See TEX. R. CIV. P. 166a(i). One of our sister courts has opined on the format of a proper no-evidence motion.

A litigant may base a motion for summary judgment on the assertion that there is no evidence of one or more essential elements of the opposing party's claim or defense. The movant need not present any summary judgment evidence to support the ground. The specification of each element challenged and the good faith assertion that there is no evidence to support that specified element is all that is required to put the burden on the opposing party to produce summary judgment evidence raising a genuine issue of material fact relevant to the challenged element. TEX. R. CIV. P. 166a(i).

Welch v. Coca-Cola Enters., Inc. , 36 S.W.3d 532, 537 (Tex. App.—Tyler 2000, pet. withdrawn).

Hernandez asks us to apply the Callaghan reasoning, which in that case was applied to the analysis of a very broad, insufficient motion, to a very specific, detailed motion in the case at hand. Unlike the motion in Callaghan , Vazquez's motion lists the elements of every one of Hernandez's causes of action and alleges Hernandez cannot produce any evidence of any of those elements. In addition, Vazquez's motion gives supporting case law and references Hernandez's factual allegations. Vazquez's motion meets the requirements of Rule 166a(i) as stated in Welch . The Callaghan holding does not apply because Vazquez's motion is not the conclusory, general challenge that was present in Callaghan .

We hold Vazquez's motion meets the requirements of Rule 166a(i).

With that in mind, we analyze Hernandez's response to the summary judgment motion to determine whether he has raised a fact issue as to any of his claims. See Herrera , 621 S.W.3d at 841.

Negligence

With respect to Hernandez's negligence claim, Vazquez urged Hernandez could produce no evidence that he owed a duty to Hernandez or that he breached that duty. In addressing the issue of duty in his response, Hernandez presented his claim that a real estate agent owes a duty to "be faithful and observant to trust placed in the agent and that the agent be scrupulous and meticulous in performing the agent's function in any real estate transaction involving any member of the public, even if the agent has a principal agent relationship with another individual." Hernandez stated that he believes this duty arises from Chapter 531 of the Texas Administrative Code, the section of the administrative code that provides regulations governing the Texas Real Estate Commission. See 22 TEX. ADMIN. CODE pt. 23 ch. 531 (2017) (Texas Real Estate Comm'n, Canons of Professional Ethics and Conduct). When questioned in his deposition about Vazquez's duty to him,² Hernandez admitted that Vazquez was never acting as his real estate agent in this transaction. Hernandez cited section 531.1, Fidelity, which reads in part:

A real estate broker or salesperson, while acting as an agent for another, is a fiduciary. Special obligations are imposed when such fiduciary relationships are created. They demand that the primary duty of the real estate agent is to represent the interests of the agent's client, and the agent's position, in this respect, should be clear to all parties concerned in a real estate transaction; that, however, the agent, in performing duties to the client, shall treat other parties to a transaction fairly (internal numbering omitted)[.]

22 TEX. ADMIN. CODE § 531.1 (2017) (Tex. Real Estate Comm'n, Canons of Pro. Ethics and Conduct), repealed and recodified at § 531.2 by 47 Tex. Reg. 1185, 1185 (2022), adopted by 47 Tex. Reg. 3049, 3049 (2022) (effective May 25, 2022). Hernandez stated although a real estate agent may be acting as an agent for another person, "that does not mean that he can commit fraud and negligence with ... a person that's making an offer to purchase real estate in a transaction." He stated: "[A]lthough there may not be an agent principal fiduciary duty, there is a fiduciary duty to the public, a member of the public that is involved in a real estate transaction ... with somebody that he may be an agent for."

In a similar case, a buyer sought to impose liability on a seller for failure to disclose certain information during a sale. Flutobo, Inc. v. Holloway , 419 S.W.3d 622 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). The buyer alleged liability under two regulations under chapter 535, part 23, title 22 of the Texas Administrative Code, the same title and part Hernandez cites in his response. One of the two regulations was in a subchapter...