ACCEPTED
01-14-00556-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
1/20/2015 5:50:26 PM
CHRISTOPHER PRINE
CLERK
CAUSE NO. 01-14-00556-CV
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE FIRST HOUSTON, TEXAS
COURT OF APPEALS DISTRICT OF TEXAS,
1/20/2015 5:50:26 PM
HOUSTON, TEXAS CHRISTOPHER A. PRINE
Clerk
MIKE BIRNBAUM AND BEVERLY BIRNBAUM,
Appellants
vs.
GENA J. ATWELL, ET AL.
Appellees
ON APPEAL FROM THE 166™ JUDICIAL
DISTRICT COURT OF BEXAR COUNTY, TEXAS
CAUSE NOS. 2011-CI-00445 AND 2013-CI-15152
BRIEF OF APPELLEES PHYLLIS BROWNING,
PHYLLIS BROWNING COMPANY AND MIMI WEBER
THORNTON, BIECHLIN, SEGRATO,
REYNOLDS & GUERRA, L.C.
Vaughan E. Waters
State Bar No. 20916700
100 N.E. Loop 410, Suite 500
San Antonio, Texas 78216
210-342-5555; 210-525-0666 (fax)
ATTORNEYS FOR APPELLEES
PHYLLIS BROWNING, PHYLLIS BROWNING
COMPANY AND MIMI WEBER
ORAL ARGUMENT REQUESTED
NAMES OF THE PARTIES
Pursuant to and in compliance with Rule 3 8, Tex. R. App. P., the parties to this
appeal are:
MIKE BIRNBAUM AND
BEVERLY BIRNBAUM, Appellants
COUNSEL FOR APPELLANTS: BRIN & BRIN, P.C.
Ms. Lorien Whyte
State Bar No. 24042440
6223 IH 10 West
San Antonio, TX 78201
210/341-9711; 210/341-1854 (fax)
lwhvte(%brinandbrin .corn
KUSTOFF & PHIPPS, LLP
Mr. Daniel 0. Kustoff
State Bar No. 11770515
4103 Parkdale St.
San Antonio, TX 78229
210/614-9444; 210/614-9464 (fax)
dkustoff(%kplegal.com
THE McCLENAHAN LAW FIRM,
PLLC
Mr. Barry A. McClenahan
State Bar No. 13404400
1901 N.W. Military Hwy, Suite 218
San Antonio, TX 78213
210/525-9600; 525-9602 (fax)
barry(%mcclenahanlawfirm. corn
(i)
GENA J. ATWELL, Appellee
COUNSEL FOR APPELLEE: FORD MURRAY, PLLC
Mr. S. Mark Murray
State Bar No. 14729300
10001 Reunion Place, Suite 640
San Antonio, TX 78216
210/731-6400; 210/731-6401 (fax)
PHYLLIS BROWNING,
PHYLLIS BROWNING COMPANY
AND MIMI WEBER, Appellees
COUNSEL FOR APPELLEES: THORNTON, BIECHLIN,
SEGRATO, REYNOLDS &
GUERRA, L.C.
Mr. Vaughan E. Waters
State Bar No. 20916700
100 N.E. Loop 410, Suite 500
San Antonio, Texas 78216
210/342-5555; 210/525-0666 (fax)
vwaters(%thomtonfirm.com
TRIAL COURT JUDGE: The Honorable Larry Noll
408th Judicial District Court
Bexar County, Texas
(ii)
REQUEST FOR ORAL ARGUMENT
Pursuant to Rule 39, Tex. R. App. P., Appellees respectfully request oral
argument in this case.
(iii)
TABLE OF CONTENTS
Page
NAMES OF THE PARTIES ......................................... (i)
REQUEST FOR ORAL ARGUMENT ................................ (ii)
TABLE OF CONTENTS .......................................... (iii)
LIST OF AUTHORITIES .......................................... (iv)
I. STATEMENT OF THE CASE ................................... 2
II. ISSUES PRESENTED ................................. ...... 3
(1) ISSUE NO. 1: THE TRIAL COURT DID NOT
ERR IN GRANTING THE BROWNING
DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT
(2) ISSUE NO. 1: THE TRIAL COURT DID NOT ERR
IN DENYING THE BIRNBAUMS' MOTION FOR
NEW TRIAL
III. STATEMENT OF FACTS ...................................... 3
IV. SUMMARY OF THE ARGUMENT .............................. 9
V. ARGUMENT AND AUTHORITIES ............................. 10
PRAYER ........................................................ 33
CERTIFICATE OF COMPLIANCE ................................... 34
CERTIFICATE OF SERVICE ....................................... 35
(iv)
LIST OF AUTHORITIES
CASES
PAGE
Accord v. General Motors Corp., 669 S.W.2d 111, 114 (Tex. 1984) ......... 16
Alvarez v. Anesthesiology Associates,
967 S.W.2d 871, 882-883 (Tex. App— Corpus Christi 1998, no pet.) ........ 32
Atlantic Mutual Insurance Co. v. Middleman, 661 S.W.2d 182, 185
(Tex. App.—San Antonio 1983, writ refd, n.r.e.) ........................ 13
Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990) ........... 11
Blum v. Julian, 977 S.W.2d 819,823
(Tex. App.-—Fort Worth 1998, no pet. hist.) ............................ 16
Cherry v. McCall, 138 S.W.3d 35, 39
(Tex. App.—San Antonio 2004,pet. denied) ............................ 23
Cire v. Cummings, 134 S.W.Sd 835,838-39(Tex. 2004) .................. 13
Doncasterv. Hemaiz, 161 S.W.Sd 594, 601
(Tex. App.—San Antonio 2005, no pet.) ............................... 13
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
(Tex.1985) ...................................................... 13
Dunn v. Dunn, 439 S.W.2d 830, 832(Tex.1969)........................ 17
Essex Crane Rental Corp. v. Carter, 371 S.W.3d 366, 383
(Tex. App.—Houston [1st Dist] 2013, pet. denied) ....................... 14
Federal Land Bank Association ofTyler v. Sloane,
825 S.W.2d 439, 442 (Tex. 1991)..................................... 22
(V)
Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.Sd 167, 172
(Tex. 2003) ...................................................... 12
Fort Brown Villas HI Condo. Ass fn v. Gillenwater,
285 S.W.3d 879, 882 (Tex. 2009) ..................................... 12
Frazier v. Yu, 987 S.W.2d 607 (Tex. App— Fort Worth 1999,
pet. denied) ..................................................... 15
Guthrie v. Suitor, 934 S.W.2d 820,825-26
(Tex. App.—Houston [1st Dist.] 1996, no writ) .......................... 20
Hall v. Rutherford, 911 S.W.2d 422,425
(Tex. App.-San Antonio 1995, writ denied)............................. 18
In re Bill Heard Chevrolet, Ltd., 209 S.W.Sd
(Tex. App.—Houston [1st Dist] 2006, orig proc.) ....................... 17
In re Estate ofDenman, 362 S.W.Sd 134, 140-41
(Tex. App.—San Antonio 2011,pet. denied) ............................ 12
Interstate Northborough Partnership v. State, 66 S.W.Sd 213, 220
(Tex.2001) ...................................................... 13
Jones v. Blume, 196 S.W.3d 440,447
(Tex. App.—Dallas 2006, pet. denied) ................................. 22
Jones v. Zearfoss, 2015 WL 101592
(Tex. App.—San Antonio 2015 (no pet. hist.) ........................... 21
Kim v. Harstan, Ltd., 286 S.W.3d 629, 634
(Tex. App.—El Paso 2009, pet. denied) ................................ 29
LBM Investments, Inc. v. Caribe Properties, Inc.,
2013 WL 5658555 (Tex. App.—Beaumont 2013,pet. denied) .............. 23
(vi)
Lim v. Baker, 2007 WL 4180153
(Tex. App.—San Antonio 2007, no pet.) ............................... 22
Lim v. Lomeli, 2007 WL 2428078
(Tex. App.—San Antonio 2007, no pet.) ............................... 26
Moron v. Heredia, 133 S.W.Sd 668,671
(Tex. App.-Corpus Christi 2003, no pet.) ............................... 18
Owens-Corning Fiberglass Corp. v. M^alone, 972 S.W.2d 35, 43
(Tex.1998) ...................................................... 13
Paciwest, Inc. v. Warner Alan Props., LLC,
266 S.W.3d 559, 567 (Tex. App—Fort Worth 2008, pet. denied) ........... 12
Powelllndus., Inc. v. Alien, 985 S.W.2d 455, 456 (Tex. 1998) ............. 11
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.Sd 211, 215
(Tex.2003) ...................................................... 11
RandalVs FoodMkts., Inc. v. Johnson, 891 S.W.2d 640, 644
(Tex.1995) ...................................................... 11
Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 81 (Tex. 1989) ............. 20
S & IMgmt., Inc. v. Sungju Choi, 331 S.W.Sd 849, 855
(Tex. App.—Dallas 2011, no pet.) .................................... 16
Salinas v. Rafati, 948 S.W.2d 286, 288 (Tex. 1997) ...................... 15
Tucker v. Atlantic Richjield Co., 787 S.W.2d 555, 557
(Tex. App-Corpus Christi 1990, writ denied)) .......................... 18
UMC, Inc. v. Arthur Bros., Inc., 626 S.W.2d 819, 820
(Tex. App.—Corpus Christ! 1981), writ refd, n.r.e.
647 S.W.2d244 (Tex. 1982) ......................................... 17
(vii)
Utilities Pipeline Co. v. American Petrofina Marketing,
760 S.W.2d 719, 723 (Tex. App—Dallas 1988, no writ) .................. 15
Volmich v. Neiman, 2013 WL 978770
(Tex. App.—Fort Worth 2013, no pet.) ................................ 23
Weaver v. Bell, No. 03-04-00169-CV, 2005 WL 1364046,
at * 15 (Tex. App.—Austin. June 10, 2005, no pet.) (mem. op.) ............ 19
White Oak Bend Municipal Utility District v. Robertson,
WL 245957(Tex. App.—Houston [14th Dist.], pet. denied) ................ 20
Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993) .................. 11
STATUTES. RULES. AND OTHER AUTHORITIES
Tex. R. App. P.9 .................................................. 34
Tex. R. App. P. 33.1 ............................................... 15
Tex. R. App. P.38 ................................................. (i)
Tex. R. App. P. 38.2 ................................................ 1
Tex. R. App. P.39 ................................................ (iii)
Texas R. App. P. 44.1(a) ............................................ 10
Texas R. App. P. 52(a) ............................................. 15
Tex. R. Civ. P 166a(c). ............................................. 11
Tex. R. Civ. P 166a(d). ............................................. 19
Tex. R. Civ. P 166a(e). ............................................. 18
(viii)
Tex. R. Civ. P 166a(i). .............................................. 11
(ix)
CAUSE NO. 01-14-00556-CV
IN THE COURT OF APPEALS FOR THE FIRST
COURT OF APPEALS DISTRICT OF TEXAS,
HOUSTON, TEXAS
MIKE BIRNBAUM AND BEVERLY BIRNBAUM,
Appellants
vs.
GENA J. ATWELL, ET AL.
Appellees
ON APPEAL FROM THE 166TH JUDICIAL
DISTRICT COURT OF BEXAR COUNTY, TEXAS
CAUSE NOS. 2011-CI-00445 AND 2013-CI-15152
BRIEF OF APPELLEES PHYLLIS BROWNING,
PHYLLIS BROWNING COMPANY AND MIMI WEBER
TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF APPEALS OF
THE STATE OF TEXAS, SAN ANTONIO, TEXAS:
NOW COME PHYLLIS BROWNING, PHYLLIS BROWNING COMPANY
AND MIMI WEBER ("BROWNING"), Appellees in the above entitled and
numbered cause, and file this their Brief of Appellees, pursuant to and in accordance
with Rule 38.2, Tex. R. App. P.; and in support thereof would respectfully show this
Honorable Court as follows:
I.
STATEMENT OF THE CASE
This is an action arising out of the purchase of a condominium unit and related
condominium interest. Defendant/Appellants PHYLLIS BROWNING and MIMI
WEBER ofPHYLLIS BROWNING COMPANY (hereinafter all jointly referred to
as the "the BROWNING Defendants") were the broker and realtors involved in the
transaction, that being a sale by Defendant/Appellee GENA J. ATWELL
("ATWELL") to Plaintiffs/Appellants MIKE BIRNBAUM and BEVERLY
BIRNBAUM ("the BIRNBAUMS"). The BIRNBAUMS brought suit against
ATWELL and the BROWNING Defendants, as well as other parties not involved in
this appeal, after they discovered water intrusion in the condominium unit following
a heavy rainfall.
ATWELL and the BROWNING Defendants moved for traditional and no-
evidence summary judgment on all claims, which motion was granted by the
Honorable LanyNoll, presiding of the 408th Judicial District Court ofBexar County,
Texas; the claims for which summary judgment was granted were severed and
assigned a separate cause number, and on March 18, 2014 the Honorable Peter A.
Sakai, presiding judge of the 225 Judicial District Court ofBexar County, Texas,
signed the final order which is the subject of this appeal. The BIRNBAUMS filed
motions for new trial, which were subsequently denied by Judge Noll.
II.
ISSUES PRESENTED
ISSUE NO. 1 RESTATED: THE TRIAL COURT DID
NOT ERR IN GRANTING THE BROWNING
DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT
ISSUE NO. 2 RESTATED: THE TRIAL COURT DID
NOT ERR IN DENYING THE BIRNBAUMS' MOTION
FOR NEW TRIAL
m.
STATEMENT OF FACTS
ATWELL was the owner of a condominium unit—Unit # 1004—at a high-end,
gated condominium complex located at 200 Patterson in Alamo Heights, San
Antonio, Texas, a property which she had purchased with her now deceased husband
in 1999 (hereinafter "the property"). 6 C.R. 348, 364. On June 28, 2007 ATWELL
decided to list the property for sale with PHYLLIS BROWNING of PHYLLIS
BROWNING COMPANY ("BROWNING"), for $2.4 Million; on that same day, the
BIRNBAUMS, through their realtor, MIMI WEBER of PHYLLIS BROWNING
COMPANY, expressed an interest in the property. M; 6 C.R. 376; 7 C.R. 14.
By way of background, MIKE BIRNBAUM has been a Texas licensed attorney
and a licensed real estate broker for more than 30 years. 7 C.R. 6, 8, 173-177, 181-
182. He is a former partner of Trammel Crow (one of the largest real estate
development companies in the world), and Weitzman Properties and Censor (some
of the largest real estate development and management companies in the United
States). 7 C.R. 6, 173-177. Under BIRNBAUM'S leadership, Trammel Crow
developed three million six hundred thousand (3,600,000) square feet of office, retail
and industrial buildings. 7 C.R. 7-8. Presently, BIRNBAUM owns and operates his
own real estate company which, among other things, has developed over 120,000
square feet of office, retail and industrial building, and presently manages over two
million (2,000,000) square feet of commercial buildings. Id.
The day after ATWELL listed the property, the BIRNBAUMS and WEBER
viewed the property without anyone else present. 7 C.R. 14. During that visit, at the
BIRNBAUMS' request, WEBER contacted BROWNING and made a verbal offer of
$2.2 million for the property, which ATWELL accepted. WEBER prepared an
earnest money contract, which ATWELL and BIRNBAUM signed ("the Earnest
Money Contract"). 7 C.R. 15-16, 90-98.
The Earnest Money Contract stated, "Buyer accepts the property in its present
condition... ." C.R. 92. At the time they signed the earnest money contract, the
BIRNBAUMS received a "Seller's Disclosure Statement," which ATWELL filled out
when she listed the property and in which she disclosed the fact that flooding and
water penetration had taken place on the property and the condominium building
itself. The handwritten explanation said: "Unit had some water problems before we
bought it. All fixed and no water problems since." 7 C.R. 16, 90-98, 101-104.
Although ATWELL had experienced some minor leaks in the lower level powder
room within the first two or three years after she purchased the property in 1999, she
fixed those leaks within that time and never experienced any further leaks. 6 C.R.
365. Thus, the import of that disclosure was that ATWELL had repaired all of the
water penetrations to the property and had not had problems since the repairs. 6 C.R.
368. This was, in fact, precisely how the BIRNBAUMS also interpreted this
statement. 7 C.R. 238 W, 241 (^4).
After signing the Earnest Money Contract, but before closing, attorney and real
estate broker BIRNBAUM hired an inspector to inspect the property. 7 C.R. 17. The
inspector's report indicated, among other things, that the inspector found evidence of
water infiltration that resulted in some water damage to the property. 7 C.R. 107-114.
There was also a recommendation to replace the property's patios after BIRNBAUM
learned from the building manager, Roy Johnson, that the patios leaked. 7 C.R. 18.
In addition to hiring an inspector, attorney and real estate broker BIRNBAUM
hired a real estate attorney, Kenneth Gindy ("Gindy"), to represent the BIRNBAUMS
in connection with this transaction. 7 C.R. 19. Gindy wrote and sent a letter to
BIRNBAUM that specifically (1) warned about past water penetration problems into
the building overall (not just the property), and about the aging mechanical systems
associated with the building, (2) informed the BIRNBAUMS that the history of water
penetration problems into the building had been the subject of litigation in the past,
and (3) encouraged BIRNBAUM to investigate the same. 7 C.R. 117. Gindy even
advised BIRNBAUM to terminate the Earnest Money Contract and renegotiate the
price based on the anticipated cost to repair the issues revealed by the inspection
report. 7 C.R. 11 7. Heeding Gindy's advice, the BIRNBAUMS requested to extend
the closing date so that he and ATWELL could discuss the concerns raised by the
inspection reports. 7 C.R. 117. ATWELL agreed to the extension. 7 C.R. 170.
Following their inspection and/or investigation, the BIRNBAUMS determined
that the cost to waterproof the Property and replace the air conditioning units would
cost $160,000.00. 7 C.R. 22. As a result, the BIRNBAUMS renegotiated the sales
price with ATWELL down to $2,040,000.00, which is a $160,000.00 decrease from
the previously agreed to price, and a $360,000.00 decrease from the original asking
price for the Property. 7 C.R. 22.
The parties closed on the sale on August 31 , 2007. 7 C.R. 121. From the date
they first viewed the Property to the date of closing, the BIRNBAUMS never
requested further information from ATWELL regarding her Seller's Disclosure
Statement or the evidence of past water leaks that was disclosed in the inspection
report. 7C.R. 18.
After closing, the BIRNBAUMS took possession of and started remodeling the
Property, which took two years to complete. 7 C.R. 238, 241. As part of the
"remodeling," the BIRNBAUMS retained Western Waterproofing to completely redo
the patios, which involved demolishing, waterproofing, and replacing the existing tile
and waterproof membranes. 7 C.R. 19. During the two-year long remodel, neither
of the BIRNBAUMS observed any water penetration into the Property nor had any
water penetration issues reported to them by the workers performing the remodel. 7
C.R. 18-19, 133.
The BIRNBAUMS moved into the Property on or about September 15,2009,
and thereafter experienced water penetration into the Property during or after a
rainstorm; the BIRNBAUMS allege that, since that time, they have experienced
numerous water penetration events in the Property. 7 C.R. 18.
On January 11,2011, the BIRNBAUMS filed suit against ATWELL. Later, the
BROWNING Defendants, Western Waterproofing, and the Condominium Owners
Association for 200 Patterson were added. 1 C.R. 1.
The BROWNING Defendants moved for summary judgment on both
traditional and no-evidence grounds. 2 C.R. 251. This motion was heard on July 23,
2013 following an earlier hearing on the summary judgment motion filed by
ATWELL; the trial court took both motions under advisement at that time. By letter
ruling the trial court indicated on August 2, 2013 that it was granting both the
BROWNING Defendants' and ATWELL's respective summary judgment motions.
2R.R. 1-44; 9 C.R. 396-398.
On August 13,2013, ATWELL and the BROWNING Defendants filed and set
for hearing their Motion to Enter Judgment based upon the trial court's ruling. 9 C.R.
392-398. Judge Noll, the trial court judge, entered an interlocutory order on August
29, 2013, granting these motions for summary judgment. 9 C.R. 423. Considering
that a trial on the merits involving the remaining defendants was set for September
11, 2013, ATWELL and the BROWNING Defendants filed a Motion to Sever. On
that date, the trial court entered an Order of Severance, which severed all issues
between the BIRNBAUMS, the BROWNING Defendants, and ATWELL into a
separate cause number, 2013-CI-15152 (the "severed action"). 9 C.R. 433. At that
point, the only issues remaining in the severed action were the amount of attorney's
fees and costs that the BIRNBAUMS owed to the respective Defendants. The parties
stipulated as to the reasonable and necessary attorneys' fees and costs incurred and
to be incurred by the Defendants, and the trial court entered a stipulation to that effect
and a final judgment in the severed action on March 18, 2014. 10 C.R. 5, 9.
On April 16,2014, the BIRNBAUMS filed a Motion for New Trial purporting
to seek a new trial from the trial court on the summary judgment, which was entered
on March 18, 2014. C.R. 1-33. The BIRNBAUMS, however, set their Motion for
8
New Trial in the original cause of action rather than the severed action. This error
was pointed out by the BROWNING Defendants and ATWELL in their Plea to the
Jurisdiction. 10 C.R. 61. On May 19, 2014, Judge Noll heard and denied the
BIRNBAUMS' Motion for New Trial. 10 C.R. 131.
IV.
SUMMARY OF THE ARGUMENT
The BIRNBAUMS, in their own summary ofthe argument as contained in their
Brief, urge the following:
"Occasionally we find a sale that breaks all the records and that is often
the result of someone desperate to get settled and there is nothing
available in the building. Unfortunately in real estate we cannot expect
this to happen very often." 5 C.R. 181 (letter written by Weber to the
200 Patterson Condominium Association). TheBimbaum'spurchaseof
Unit 1004 was just that—a purchase made out of desperation to
purchase a low maintenance and luxury condominium while Mike was
battling cancer and he wanted safety and security for his wife Beverly.
And Weber got what she had hoped for—a sale that broke records made
out of desperation to get settled, and she capitalized on that.
Appellants' Brief, at 14.
Given that the BIRNBAUMS had full knowledge, as discussed hereinabove
and as further referenced hereinbelow, of water intrusion problems in the property
and in the building itself before they closed on the property, this display of candor on
their part is quite remarkable. Although ATWELL, the seller, freely pointed out in
her seller's disclosure notice that there had been a history of water intrusion in the
unit; although the BIRNBAUMS themselves retained experts to inspect the property
before the purchase, and obtained a report confirming these problems; although the
BIRNBAUMS, cognizant of these problems, renegotiated the contract price
specifically to account for needed repairs; and although they were aware from their
own attorney that the entire building as a whole had not only experienced water
intrusion problems but had been involved in litigation over same, still they completed
the sale hoping against hope that they would beat the odds. Now they ask that
someone, anyone, absolve them from the consequences of their own choices.
Having no evidence that the BROWNING Defendants were any more
knowledgeable of water intrusion issues in either the property or in the building as
a whole than were the BIRNBAUMS themselves at the time of purchase, it seems
their real complaint against the BROWNING Defendants, at bottom, is that these
realtors all should have made more of an effort to talk them out of the buying the
property. No such duty is recognized in Texas law; the summary judgments were
correctly granted; and the BIRNBAUMS ' motion for new trial was correctly denied.
V.
ARGUMENT AND AUTHORITIES
10
ISSUE NO. 1 RESTATED: THE TmAL COURT DID
NOT ERR IN GRANTING THE BROWNING
DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT
ISSUE NO. 2 RESTATED: THE TRIAL COURT DID
NOT ERR IN DENYING THE BIRNBAUMS' MOTION
FOR NEW TRIAL
A. Standards of Review and Evidentiary Rulings
A trial court's grant of summary judgment is reviewed by the appellate court
de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.
2003). In a traditional motion for summary judgment, the defendant is entitled to
summary judgment on the plaintiffs cause of action if the defendant can disprove at
least one element of the plaintiffs cause of action as a matter of law. Rule 166a(c),
Tex. R. Civ. P. See also Randall's FoodMkts., Inc. v. Johnson, 891 S.W.2d 640,
644 (Tex. 1995); WornickCo. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993); Black v.
Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990); Powell Indus., Inc. v.
Alien, 985 S.W.2d455, 456 (Tex. 1998).
To succeed on a no-evidence motion for summary judgment against a plaintiffs
cause of action(s), the defendant need only allege that, after an adequate time for
discovery, there is no evidence of an essential element of each of the plaintiffs
11
causes of action. Rule 166a(i), Tex. R. Civ. P.; FortBrown Villas HI Condo. Ass'n
v. Gillenwater, 285 S.W.3d 879, 882 (Tex. 2009). If the defendant meets its burden,
the burden then shifts to the plaintiff to produce more than a scintilla of evidence to
raise a genuine issue of material fact on the challenged element(s). Forbes Inc. v.
Granada Biosciences, Inc., 124 S.W.Sd 167, 172 (Tex. 2003). The evidence must
be sufficient to allow reasonable and fair-minded people to differ in their conclusions
on whether the challenged fact exists. Evidence that raises only a speculation or
surmise is insufficient. Forbes, Inc., 124 S.W.Sd at 172. If less than a scintilla of
evidence is produced, the defendant is entitled to a summary judgment on the
plaintiffs cause (s) of action.
An appellate court reviews a trial court's ruling that sustains or overrules an
objection to summary judgment evidence for abuse of discretion. In re Estate of
Denman, 362 S.W.Sd 134, 140-41 (Tex. App.—San Antonio 2011, pet. denied);
Paciwest, Inc. v. WarnerAlan Props., LLC, 266 S.W.3d 559, 567 (Tex. App.—Fort
Worth 2008, pet. denied); Doncaster v. Hemah, 161 S.W.Sd 594, 601 (Tex.
App.—San Antonio 2005, no pet.) (citing Owens-Corning Fiberglass Corp. v.
Malone, 972 S.W.2d 35,43 (Tex. 1998)). A trial court abuses its discretion if it acts
12
without reference to any guiding rules or principles, i.e., arbitrary and unreasonably.
Cire v. Cummings, 134 S.W.3d 835, 838-839 (Tex. 2004); Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238,241-242 (Tex. 1985). Merely because a trial court
may decide a discretionary matter differently than the appellate court does not
demonstrate an abuse of discretion. Id. To obtain reversal for an erroneous exclusion
or admission of evidence, the appellant must establish the error was harmful, that is,
it was calculated to cause and probably did cause the rendition of an improper
judgment. Doncaster, 161 S.W.Sd at 601; Rule 44.1(a), Tex. R. App. P. Errors in
admission or exclusion of evidence are generally not reversible unless the appellant
can show the whole case turns on the complained of evidence. Doncaster, 161
S.W.3dat601 (citmg Interstate Northborough Partnership v. State, 66 S.W.3d213,
220 (Tex. 2001); Atlantic Mutual Insurance Co. v. Middleman, 661 S.W.2d 182,
185 (Tex. App.—San Antonio 1983, writ refd, n.r.e.).
Astonishingly, the BIRNBAUMS argue that the BROWNING Defendants
somehow "waived" their objections to the summary judgment evidence by reason of
Judge Noll having read the evidence attached to the BROWNING Defendants'
response, before he ruled on the admissibility thereof (as if he could somehow have
ruled on it without reading it). Obviously the BIRNBAUMS cite no authority that
13
comes anywhere close to supporting such a specious argument. There is no dispute
that the BROWNING Defendants timely filed their written and specific objections to
the BIRNBAUMS' summary judgment evidence prior to the hearing on their
summary judgment motion. 9 C.R. 221. Judge Noll heard and mled on those
objections in open court and on the record prior to argument on the summary
judgment motion.
The BIRNBAUMS do cite the case of Essex Crane Rental Corp. v. Carter,
371 S.W.3d 366, 383 (Tex. App.—Houston [1st Dist] 2013, pet. denied), but that
does not, in fact, deal with any such proposition. Rather, Essex stands for the
unremarkable proposition that a party waives its objections if it does not file written
obj ections to summary judgment evidence until after the trial court has actually ruled
on the motion for summary judgment. It does not, as the BDRNBAUMS contend,
stand for the proposition that by allowing the trial court to read the BROWNING
Defendants' summary judgment motion and the BIRNBAUMS' proposed evidence,
the BROWNESfG Defendants somehow waived their objections to that evidence.
Adoption of such a standard would mean, absurdly, that a trial court would have to
rule on the admissibility of summary judgment evidence without having any idea as
to what the motion was about or what the evidence was that a party was proffering
14
in support of or opposition to the motion.
Although there is absolutely no question that (1) the BROWNING Defendants
filed and presented their objections to the court before it considered their summary
judgment motion, (2) the parties argued all of these objections, and (3) the court
considered and ruled on each of these objections (1 R.R. 1-101, 2 R.R. 1-45), the
BIRNBAUMS further contend that the objections are waived because the court did
not reduce its rulings on those objections to a written order. To support this
proposition, they cite first to Utilities Pipeline Co. v. American Petrofina Marketing,
760 S.W.2d 719, 723 (Tex. App.—Dallas 1988, no writ). It should be noted that the
Utilities Pipeline case was decided under the old Rule 52(a) of the Texas Rules of
Appellate Procedure. That rule required an "express ruling" as a prerequisite to
appellate review. In 1997, the Texas Supreme Court adopted the new Texas Rules of
Appellate Procedure. Rule 33. l(a)(2)(A) relaxed the requirement and codified case
law that recognized implied rulings. Frazier v. Yu, 987 S.W.2d 607 (Tex. App.—
Fort Worth 1999, pet. denied); Salinas v. Rafati, 948 S.W.2d 286, 288(Tex.1997)
(finding that granting of motion to disregard "automatically" denied motion for
judgment on verdict); Accord v. General Motors Corp., 669 S.W.2d 111, 114 (Tex.
1984) (presuming objection to charge was overruled because trial court did not alter
objectionable language); Blum v. Julian, 977 S.W.2d 819, 823 (Tex. App— Fort
15
Worth 1998, no pet. hist.).
It is not, however, the BIRNBAUMS' contention that the trial court
"implicitly" ruled on the BROWNING Defendants' objections, because the reporter's
record accurately reflects that the trial judge not only heard and considered all of the
objections, but that he also expressly ruled on each objection before considering the
BROWNING Defendants' summary judgment motion. 1 R.R. 1-101. "Thus, error
is preserved as long as the record indicates in some way that the trial court ruled on
the objection either expressly or implicitly." Frazierv. Yu, 987S.W.2dat610(citing
John Hill Cayce, Jr., et al., Civil Appeals in Texas: Practicing Under the New Rules
of Appellate Procedure, GUIDE TO THE NEW TEXAS RULES OF APPELLATE
PROCEDURE 1997, at 10 (stating "[a] signed, separate order is not required, as long
as the record otherwise shows that the mling was made")).
Next, the BIRNBAUMS cite to S & IMgmt., Inc. v. Sungju Choi, 331 S.W.3d
849, 855 (Tex. App.—Dallas 2011, no pet.). The facts of the Choi case are materially
distinguishable, however. In Choi, although the appellee, Choi, submitted written
objections to some of the summary judgment evidence, he did not seek or obtain a
ruling from the court prior to the court's ruling on the summary judgment motion.
After the court had already ruled on the summary judgment motion, Choi, in a
subsequent hearing, sought to have the court rule on the objections. The court
responded by telling Choi that because the court had granted his summary judgment,
16
he could "assume" that his objections were sustained. Essentially, the court was
telling Choi that the court had made an implicit ruling on his objections by granting
his summary judgment. Choi was not a case where the party had filed appropriate
written objections to summary judgment evidence, asked for and obtained specific
rulings from the trial judge on those objections, which were on the record and
occurred before the trial court ruled on the summary judgment motion (all of which
is reflected in detail in the reporter's record in this appeal).
An order pronounced in open court is considered "rendered" when it is
officially announced, and it is valid from that time forward so that formal entry is
only a ministerial act. Dunn v. Dunn, 439 S.W.2d 830, 832 (Tex. 1969); UMC, Inc.
v. Arthur Bros., Inc., 626 S.W.2d 819, 820 (Tex. App— Corpus Christi 1981), writ
refd, n.r.e., 647 S.W.2d 244 (Tex. 1982); In re Bill Heard Chevrolet, Ltd., 209
S.W.3d 311 (Tex. App.—Houston [1st Dist] 2006, orig proc.). As this Honorable
Court has stated, "Therefore, to be effective, all orders and rulings must be made on
the record either in writing or in open court transcribed by the court reporter.'" Bill
Heard Chevrolet, Ltd., at 315 (citing Rule 33.1(a)(2), Tex. R. App. P. 33.1(a)(2))
(emphasis added). In this case, Judge Noll's mlings on the written objections were
made on the record in open court, were transcribed by the court reporter, and are
17
found in Volume 1 of the Reporter's Record in this case.
The BROWNING Defendants objected to the BIRNBAUMS' attempt to use
the unswom and unverified reports of Jim Jones and Barbara Tarin in their attempt
to defeat the summary judgment motion. 9 C.R. 260. The trial court specifically
sustained this objection. 1 R.R. 79. Since the Jones and Tarin reports were neither
verified nor accompanied by an affidavit, they were hearsay and therefore
inadmissible summary judgment evidence. See Rule 166a(e), Tex. R. Civ. P. (court
must grant a no-evidence motion for summary judgment "unless the respondent
I
produces summary judgment evidence raising a genuine issue of material fact")
(emphasis added). The absence ofajurat is substantive, and not a "purely formal"
defect. Moron v. Heredia, 133 S.W.Sd 668, 671 (Tex. App.-Corpus Christi 2003,
no pet.) (citing Tucker v. Atlantic Richfield Co., 787 S.W.2d 555, 557 (Tex.
App-Corpus Christ! 1990, writ denied)); see Hall v. Rutherford, 91 1 S.W.2d 422,
425 (Tex. App.-San Antonio 1995, writ denied).
However, certain of the BROWNING Defendants' objections to the
supplemental Tarin evidence were withdrawn and, as the BIRNBAUMS point out at
pp. 19-20 of their Appellants' Brief, the Tarin report "was not excluded wholesale."
Still, the BIRNBAUMS do not point to a single opinion or conclusion of Ms. Tarin
18
which they contend was improperly excluded and which, if not excluded, -would have
avoided summary judgment. Absent a specific statement on the part of the
BIRNBAUMS as to how they feel the trial court's ruling on the BROWNING
Defendants' evidentiary objections harmed them, it is difficult to see how they can
prevail on this point—but, as further discussed hereinbelow, they could not have
made a plausible argument for harm in any event.
As to Mr. Jones, the BIRNBAUMS contend, at p. 21 of their Appellants' Brief,
that he "verified" his report by way of his deposition. Again, however, the
BIRNBAUMS do not specifically reference any specific portion of Mr. Jones'
deposition testimony. The trial court was not required to sift through the entire,
voluminous 588 pages of the BIRNBAUMS' experts' depositions to search for
evidence supporting their contentions. The law is clear in Texas summary judgment
practice that a party cannot merely cite to an entire deposition to support or defeat
summary judgment, but must make specific references to the deposition. Rule
166a(d), Tex. R. Civ. P.; Weaver v. Bell, 2005 WL 1364046 (Tex. App.—Austin.
June 10, 2005, no pet.), at * 15 (deposition was not proper summary judgment
evidence without references to specific portions of the deposition); White Oak Bend
Municipal Utility District v. Robertson, 2002 WL 245957 (Tex. App.—Houston
19
[14th Dist.j, Feb. 21, 2002, pet. denied), at *5 n. 2 (refusing to consider entire
transcripts from six witnesses' depositions and holding that neither the trial court nor
the appellate court were required to sift through voluminous deposition transcripts in
search of evidence to support appellant's contentions); Guthrie v. Suffer, 934 S.W.2d
820, 825-826 (Tex. App.—Houston [1st Dist.] 1996, no writ) (party opposing
summary judgment could not attach entire deposition to its response, and trial court
properly granted summary judgment where non-movant failed to specifically
reference portions of the deposition relied upon) (citing Rogers v. Ricane Enters.,
Inc., 772 S.W.2d 76, 81 (Tex. 1989)).
Secondly, Mr. Jones in his deposition admits that his report was inaccurate and
incorrect in indicating that there were water leaks in Unit # 1004 on July 28,2007, just
a day before the BIRNBAUMS closed on the condominium unit. 8 C.R. 263-264.
Importantly, the BIRNBAUMS must show that the trial court abused its
discretion in excluding this evidence and that the error was harmful, that is, it was
calculated to cause and probably did cause the rendition of an improper judgment.
Doncaster, 161 S.W.Sd at 601; Rule 44.1 (a), Tex. R. App. P. In other words, the
BIRNBAUMS must show that the entire case turns on the excluded evidence. The
BIRNBAUMS make no attempt to and cannot satisfy this requirement.
B. The Trial Court Did Not Err in Granting the BROWNING Defendants'
Combined No-Evidence and Traditional Summary Judgment Motion
20
In this case, the BIRNBAUMS undertook a reasonable investigation of the unit
as well as the building. As a result of those efforts, the BIRNBAUMS became aware
of the history of leaks in the building and even knew there had been a lawsuit
concerning the leaks. 7 C.R. 117 (letter from Mr. Bimbaum's attorney Kenneth
Gindy). They also renegotiated the sales price downward materially in order to cover
the costs of "waterproofing" the patios (roof) of the property. 7 C.R. 22, 170.
In the very recent case of Jones v. Zearfoss, 2015 WL 101592 (Tex.
App.—San Antonio 2015 (no pet. hist.), which is very much on point, the sellers'
home was damaged by burglars, which caused more than 50,000 gallons of water to
flow through the house. The sellers' insurance company hired two separate
companies to conduct water extraction and dry-out operations. In the seller's
disclosure notice the seller stated: "[w]ater penetration: upstairs toilet leaked and
caused water damage downstairs. Damage was covered by insurance and was
professionally corrected." The Fourth Court of Appeals held that this disclosure of
water damage was sufficient to induce the buyers (as it did the BIRNBAUMS in this
case) to act on such information by, inter alia, conducting their own investigation;
and that the claims that the seller understated the severity of the water damage failed
to raise a genuine issue of material fact that would support a finding of material
21
misrepresentation. The appellate court upheld the lower court's "no evidence"
summary judgment.
The BIRNBAUMS sued the BROWNING Defendants on theories of breach
of contract, negligence, gross negligence, and breach of fiduciary duty. Proof of
causation is of course essential for recovery under any of these theories, and reliance
is in addition an essential element of the negligence claim insofar as this concerns
negligent misrepresentation. Federal Land Bank Association ofTylerv. Sloane, 825
S.W.2d 439, 442 (Tex. 1991); Jones v. Blume, 196 S.W.Sd 440, 447 (Tex.
App.—Dallas 2006, pet. denied); Lim v. Baker, 2007 WL 4180153 (Tex. App.—San
Antonio 2007, no pet.), at *2. By agreeing to purchase a property "as is", a buyer
agrees to make his own appraisal of the bargain and to accept the risk that he might
be wrong. Lim, supra.
Accordingly, the sole cause of a buyer's injury in such circumstances, by his
own admission, is the buyer himself. Id. He has agreed to take the full risk of
determining the value of the purchase and removes the possibility that the seller's
conduct will cause him damage. Id.', see also Cherry v. McCall, 138 S.W.3d 35, 39
(Tex. App.—San Antonio 2004, pet. denied) (buyers who purchased and accepted
property "in its present condition" or "as is" assumed "entire risk as to the quality of
22
the property and the resulting loss").
The BIRNBAUMS questioned whether the contract for sale of the property
actually constitutes an "as is" contract, since the words "as is" do not appear in the
clause by which the buyers agree to accept the property "in its present condition." It
has been repeatedly held by the courts in Texas that the language "in its present
condition" is synonymous with the words "as is" in this context. Cherry, supra. See
also LBM Investments, Inc. v. Caribe Properties, Inc., 2013 WL 5658555 (Tex.
App.—Beaumont 2013, pet. denied), at *2 ("Contract language stating that the buyer
accepts the property in its present condition constitutes an "as is" clause [citations
omitted]...When a buyer agrees to purchase something as is, he agrees to make his
own appraisal of the bargain and to accept the risk that he may be wrong."); Volmich
v. Neiman, 2013 WL 978770 (Tex. App.—Fort Worth 2013, no pet), at *3 ("Texas
courts have interpreted contract language stating "in its present condition" to be an
agreement to purchase the property 'as is'" [citations omitted]).
Indeed, Volmich is particularly instructive. In that case Mr. and Ms. Volmich
entered into a contract to purchase a residential property from Mr. and Ms. Neiman.
The earnest money contract, as in our own, contained an "as is" clause (that is, "in its
present condition"). Mr. Volmich hired an inspector to conduct an inspection of the
23
home, and the resulting report indicated need for repair in certain areas, including
moisture-related damage. Nonetheless, the parties closed on the property, and almost
two years later the buyers filed suit against the sellers, claiming breach of contract,
breach of implied warranty, negligence, and fraud. Id., at *1.
The sellers filed a traditional summary judgment motion, as to all claims and
causes of action, based on the confluence of the "as is" clause and the fact that the
buyers had obtained their own inspection, which superceded any alleged wrongdoing
on the sellers' part. The buyers, in turn, denied that the contract was an "as is"
contract, and asserted that reliance on an independent inspection was not enough to
constitute a new and independent basis for the purchase of the home. The trial court
granted summary judgment in its entirety. Id., at *1-*2.
The court of appeals affirmed. After first observing that the contract was
indeed an "as is" contract, the court turned its consideration to the enforceability of
an "as is" agreement, the factors including (1) the sophistication of the parties and
whether they were represented by counsel, (2) whether the contract was an arms'
length transaction, (3) the relative bargaining power of the parties and whether the
contractual language was freely negotiated, and (4) whether that language was an
important part of the parties' bargain. Id., at *2.
24
The court's analysis is strikingly on point with our own case:
In this case, both parties were represented by real estate agents.
Additionally, although the Volmiches are German citizens, Mr. Volmich
had worked as a project manager for wind farms in both Idaho and
Texas before deciding to purchase a home in Wichita Falls. Neither
party was represented by counsel, but the circumstances do not suggest
any disparity of bargaining power that would affect the enforceability of
the "as is" clause. Indeed, although the "as is" language is contained
within the standard TREC contract form, the parties negotiated that
specific part of the sales contract by adding that the Neimans would pay
to have the property treated for termites if the inspection revealed the
need for such a treatment. The parties had also previously negotiated to
extend the initial ten-day termination period for an additional three days.
The totality of the circumstances therefore leads us to conclude that the
"as is" clause in this contract is enforceable as an arm's length
transaction between parties with equal bargaining strength [citation
omitted].
Id., at *3. Here, as in Volmich, the BIRNBAUMS obtained their own inspection and
were of course aware of a history of water damage both in the unit itself and in the
overall building. Here, as in Volmich, the BIRNBAUMS negotiated this TREC
contract form by obtaining a reduction in the purchase price specifically with
reference to water intrusion damage and a perceived need for repair of that damage.
The only distinction between this case and Volmich is that in Volmich neither side
was represented by counsel in the transaction; here, only one side was represented
by counsel—the BIRNBAUMS.
Actually there is one other distinction between our case and Volmich. In
25
Volmich the seller's disclosure statement indicated that the sellers were not aware of I
any roof defects or malfunctions, when in fact such defects and malfunctions existed.
Id., at *4. Here, by contrast, ATWELL specifically referred in the seller's disclosure
statement to the unit's history of water damage. Again the court's analysis in
Volmich is instructive:
Texas courts have held that when false and fraudulent representations
are made concerning the subject matter of a contract but when the
person to whom they are made conducts an independent investigation
into the matters covered by the representations before closing, it is
presumed that reliance is placed on the information acquired by such
investigation and not on the representations made to him and that he
therefore cannot seek relief because the bargain later proves
unsatisfactory [citations omitted].
M, at* 5.
Of further particular significance is the case of Lim v. Lomeli, 2007 WL
2428078 (Tex. App.—San Antonio 2007, no pet.), which applies these principles
specifically to a buyer suing a realtor. There the buyers conducted a pre-sale
inspection and obtained an inspection report which contained multiple findings
regarding potential water damage throughout the house. The buyers' realtor, Lomeli,
allegedly told the buyers "not to worry" about areas of wood rot and possible water
penetration that were found during the inspection, as these were "minor" issues; he
did, however, advise the buyers that they should be concerned about a large
26
panoramic window, and suggested they should get estimates about the cost to repair
the window. Accordingly, the buyers obtained an adjustment in the contract price to
cover $10,000.00 for repairs. That contract, like this one, contained the standard
clause that "the buyer accepts the property in its present condition." The buyers
alleged that Lomeli told them that the clause was "nothing to worry about" and that
it would not apply in the event they found something wrong with the house beyond
the panoramic window. However, within two weeks of the closing, the San Antonio
area experienced a heavy rainfall and the buyers alleged that nearly every window
leaked "profuse amounts of brown water into the house", causing damage; they filed
suit against Lomeli, the sellers, the sellers' agent, and others. Lomeli filed a motion
for summary judgment on traditional and no-evidence grounds, which was granted
in its entirety. Lomeli, at * 1.
The Fourth Court of Appeals again affirmed, holding that the buyers, having
hired their own inspector, reviewed his inspection reports, negotiated a price
reduction for water penetration problems, and signed a contract stating "buyer accepts
the property in its present condition", as a matter of law could not establish the
elements of causation or reliance to prove their claims. Id., at *4. As the court put
it, "Information [about water penetration problems and damage] was equally available
27
to the [buyers]" and, "[bjecause each of the causes of action alleged by the [buyers]
require showing of reliance or causation, the trial court properly entered summary
judgment against [the buyers] on each of their asserted claims." Id. Because
summary judgment was properly granted in favor of the real estate agent, the court
held summary judgment was also proper for the broker. Id.
Similarly, here, as set forth above, before they closed on the sale the
BIRNBAUMS (a) agreed in the "as is" earnest money contract to accept the property
"in its present condition," (b) had been made aware of preexisting water penetration
in the home through the Seller's Disclosure Statement, (c) hired their own inspector
prior to closing, who specifically indicated he had found evidence of water
penetration into the home resulting in water damage, (d) completed and signed a
"walk thru" and acceptance form stating they had the property inspected by their own
inspector, whose report they had reviewed, and they accepted the property "in its
present condition," (e) hired someone to address the water penetration and other
issues, securing an estimate from Western Waterproofing to fix the water penetration
problem, and negotiated a $160,000.00 decrease in the sales price, and (f) unlike the
buyers in Lomeli, even hired a lawyer who specifically warned them about water
penetration problems in the unit an d in the building.
28
The BIRNBAUMS aver that the BROWNING Defendants somehow breached
a duty to tell them they were entering into an "as is" contract, when it is of course
axiomatic that "a broker does not have a duty to disclose the contents of a written
agreement that the principal is obligated to read before he or she signs it." Kim v.
Harstan, Ltd., 286 S.W.Sd 629, 634 (Tex. App.—El Paso 2009, pet. denied) (a case
cited by the BIRNBAUMS themselves at p. 33 of their Appellants' Brief).
More disturbing, however, is the BIRNBAUMS' utterly specious argument at
that same page of their brief that "[b]y first representing to the BIRNBAUMS they
were experts in 200 Patterson, and then failing to tell the BIRNBAUMS of the
pervasive water invasion issues, [the BROWNING Defendants] violated contractual,
fiduciary and common law duties to the BIRNBAUMS." This argument is based on
advice supposedly given by the BROWNING Defendants to the homeowners'
association board regarding the "Bennett Unit", a unit down the hall from the
property at issue, which had suffered water intrusion problems—this being a
completely separate unit in -which theBIRNBA UMS 'acquired 'no interest whatsoever.
As to whether the BROWNING Defendants knew anything else about water intrusion
problems in the building (beyond what the BIRNBAUMS themselves knew), the
BIRNBAUMS offer nothing except naked conj ecture and speculation, said to revolve
29
around the BROWNING Defendants' alleged representation of themselves as
"experts" in this particular building. But "experts" in what? Title issues among the
owners? Interior decoration issues? Market values of particular units other than the
property at issue and the "Bennett Unit"? We don't know, because the BIRNBAUMS
have provided no hint whatsoever of the alleged parameters of such "expertise" and
point to no summary judgment evidence on the nature of such "expertise"; they
simply asked the trial court, just as they ask this Honorable Court, to assume that the
BROWNING Defendants must have known more than they did because they are
experienced realtors. The appellate court rejected such farcical reasoning inLomeli,
and this Honorable Court should do so here.
In short, the BIRNBAUMS utterly failed to adduce any competent summary
judgment evidence whatsoever on the elements of causation or of reliance on any of
their asserted causes of action, and they fail to point to any such competent summary
judgment evidence in their Appellants' Brief, opting instead to substitute "spin" for
substance. The trial court correctly granted summary judgment on the
BIRNBAUMS' claims, and that judgment need not and should not be disturbed.
C. The Trial Court Did Not Abuse Its Discretion In Denying the BIRNBA UM'S
Motion for New Trial
In this regard, the BROWNING Defendants expressly adopt by reference the
30
discussion contained in Part VI of the Brief of Appellee ATWELL, in its entirety; the
ATWELL Brief ably discusses and analyzes the reasons why (a) the trial court was
without jurisdiction to hear the BIRNBAUMS' motion for new trial or to act thereon
in any manner other than to dismiss the motion on jurisdictional grounds, and (b)
even assuming arguendo that the trial court had jurisdiction to hear and act upon the
motion, same was completely without merit and could not properly have been
granted. ATWELL Brief, at 52-60. (The BROWNING Defendants likewise concur
in the observation at Part VII of the ATWELL Brief, pointing out that the trial court' s
judgment awarding appellate attorney's fees should be conditioned upon a successful
appeal.) The BROWNING Defendants would add only the following, in all respects
subject to and without waiver ofthejurisdictional argument set forth in the ATWELL
Brief.
Evidence is not "new" unless it was not, and through diligence could not
reasonably have been, discovered prior to trial (or in this case prior to the entry of
summary judgment). Alvarez v. Anesthesiology Associates, 967 S.W.2d 871, 882-
883 (Tex. App.—Corpus Christi 1998, no pet.). Nothing proffered by the
BIRNBAUMS in their motion meets that standard.
For example, the BIRNBAUMS point out in the motion that on November 14,
31
2013—after the interlocutory summary judgment was granted, but several months
before it was made final—Mr. Michael Stellato of Raba Kistner Consulting was
deposed. In his deposition Mr. Stellato made reference to his earlier June 29, 2010
report prepared on behalf of Raba Kistner for the owners' association. Supp. C.R.
340-341. As ATWELL pointed out, the evaluation was performed years after the
closing on the property and has no bearing on the condition of the property at the time
it was sold to BIRNBAUM. This was further pointed out in the BROWNING
Defendants' response to the motion. 10 C.R. 86. But in addition to this, the
BROWNING Defendants attached to their response a true and correct copy of the
transmittal letter of March 30, 2012 in which BIRNBAUM.'s counsel was provided
with a copy of the June 29, 2010 report to which they expressly refer in their new
trial motion. 10 C.R. 94-115. Not only could BIRNBAUM have obtained the Raba
Kistner information, BIRNBAUM did in fact obtain the Raba Kistner information
over a year before the summary judgment motions were heard.
Moreover—and at least as important—none of the information which
BIRNBAUM and their counsel assert to be "new" is in any way material -within the
summary judgment context. No party has contended that the building never
experienced water infiltration issues, and ATWELL freely disclosed this with respect
32
to the property in the seller's disclosure statement. The BIRNBAUMS freely
acknowledge that they negotiated the price downward by $160,000.00—from $2.2
million to $2.04 million—specifically to accommodate repair costs necessitated by
water damage. The issue is not what the BROWNING Defendants knew, but rather
-what the BIRNBA UMS knew at the time of closing. Not one iota of "new" evidence
(or, for that matter, old evidence) proffered by the BIRNBAUMS suggests that the
BROWNING Defendants or any of them had greater material knowledge at the time
of closing than the BIRNBAUMS.
In view of the foregoing, the final judgment entered herein in favor of the
BROWNING Defendants and ATWELL was and is in all respects correct and
complete, subject only to the minor adjustment relating to appellate attorney's fees
as referenced hereinabove. Subject thereto, the BROWNING Defendants respectfully
submit that that judgment should be in all respects affirmed.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the BROWNING Defendants
respectfully pray that the final judgment herein be in all respects affirmed, subject to
the aforesaid adjustment as to appellate attorney's fees; and for all other and further
relief, at law or in equity, to which the BROWNING Defendants might show
33
themselves justly entitled.
Respectfully submitted,
THORNTON, BIECHLIN, SEGRATO,
REYNOLDS & GUERRA, L.C.
100 N.E. Loop 410, Suite 500
San Antonio, TX 78216
210/342-5555; 210/525-0666 (fax)
vwatersfStthomtonfirm. corn
By: s/ Vaughan E. Waters
Vaughan E. Waters
State Bar No. 20916700
vwaters(%thorntonfirm.com
ATTORNEYS FORAPPELLEES
PHYLLIS BROWNING, PHYLLIS
BROWNING COMPANY AND
MIMI WEBER
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9, Tex. R. App. P., the undersigned certifies that:
1. TheBrief of Appellees contains 7,264 words.
2. The Brief ofAppellees has been prepared in proportionally spaced typeface
using Word Perfect in Times New Roman 14 point.
s/ Vaughan E. Waters
Vaughan E. Waters
34
CERTIFICATE OF SERVICE
I hereby certify that a tme and correct copy of Brief of Appellees has been
forwarded to the following this 20th day of January, 2015.
Via facsimile
Ms. Lorien Whyte
Brin & Brin, P.C.
6223 IH 10 West
San Antonio, TX 78201
Mr. Daniel 0. Kustoff
Ms. Melanie H. Phipps
Kustoff&Phipps,LLP
4103 Parkdale Street
San Antonio, TX 78229
Mr. Barry A. McClenahan
The McClenahan Firm
1901 N.W. Military Hwy, Suite 218
San Antonio, TX 78213
Attorneys for Appellants
Mr. S. Mark Murray
Ford Murray, PLLC
10001 Reunion Place, Suite 640
San Antonio, TX 78216
Attorneys for Gena J. Atwell
s/ Vauehan E. Waters
Vaughan E. Waters
35