Alejandro Hernandez v. Victor Vazquez

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

ALEJANDRO HERNANDEZ, § No. 08-21-00158-CV

Appellant, § Appeal from the

v. § 34th Judicial District Court

VICTOR VAZQUEZ, § of El Paso County, Texas

Appellee. § (TC# 2017-DCV0755)

OPINION

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.

1
This is another in a long line of appeals arising out of Hernandez’s eviction. See Hernandez v. U.S. Bank Trust N.A.,
No. 08-16-00218-CV, 2016 WL 4801601 (Tex. App.—El Paso Sept. 14, 2016, no pet.) (mem. op.) (attempted appeal
of supersedeas order); Hernandez v. U.S. Bank Trust N.A., 527 S.W.3d 307 (Tex. App.—El Paso 2017, no pet.)
(opinion on motions regarding supersedeas); Hernandez v. U.S. Bank Trust NA, No. 08-16-00290-CV, 2017 WL
1953291 (Tex. App.—El Paso May 11, 2017, no pet.) (mem. op.) (appeal of judgment granting possession of the
property to U.S. Bank Trust); Hernandez v. Sommers, No. 08-18-00045-CV, 2018 WL 1940362 (Tex. App.—El Paso
Apr. 25, 2018, no pet.) (mem. op.) (resolving motions to dismiss for want of jurisdiction); Hernandez v. Hernandez,
547 S.W.3d 898 (Tex. App.—El Paso 2018, pet. denied) (appeal from order denying reentry alleging unlawful eviction
by new property owners); Hernandez v. Sommers, 587 S.W.3d 461 (Tex. App.—El Paso 2019, pet. denied) (constable
who executed valid writ of possession against tenants of foreclosed property was entitled to official immunity);
Hernandez v. Hernandez, 596 S.W.3d 403 (Tex. App.—El Paso 2020, no pet.) (appeal of bill of review claiming
tenant prevented from fully asserting his wrongful eviction claim in prior lawsuit); Hernandez v. Hernandez, 632
S.W.3d 92 (Tex. App.—El Paso 2020, no pet.) (appeal of summary judgment dismissing wrongful-removal claim);
Hernandez v. Vazquez, No. 08-18-00223-CV, 2020 WL 6867065 (Tex. App.—El Paso Nov. 23, 2020, no pet.) (mem.
op.) (dismissal for want of jurisdiction).
 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)).

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 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

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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).

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 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.
1F

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

2
Hernandez attached his entire deposition transcript to his response to motion for summary judgment as exhibit 1.

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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 entitled “General Provisions Relating to

the Requirements of Licensure,” and the other was in a subchapter entitled “Suspension and

Revocation of Licensure.” Id. at 633. The Flutobo court noted there was legally insufficient

evidence that the agent was acting as a salesperson in the transaction at issue, but went on to state,

[E]ven if these regulations could be interpreted to cover her acts . . . , the parties
have not cited and research has not revealed any cases addressing whether these
regulations provide legal standards that apply in claims by private plaintiffs seeking
monetary damages. . . . We decline to adopt the standards in these administrative
regulations for use in determining the civil liability of litigants in damage claims.

Id. As stated above, Hernandez admitted Vazquez was not acting as his agent in his attempts to

purchase the house. Hernandez has not produced, and we have not found cases imposing a duty

forming the basis of a negligence claim on a real estate agent under these regulations. We decline

to adopt the regulations found in the Canons of Professional Ethics and Conduct as the basis for a

negligence claim by a potential party to a real estate transaction against a real estate agent for the

other party to the transaction. Granting summary judgment on negligence was not error.

Negligence Per Se

Hernandez’s cause of action for negligence per se is also based on an alleged violation of

Section 531.1 of the Canons of Ethics. See 22 TEX. ADMIN. CODE § 531.1. Vazquez moved for

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summary judgment on this claim, stating Hernandez cannot show he belongs to the class that the

statute or regulation is intended to protect. See Perry v. S.N., 973 S.W.2d 301, 305 (Tex. 1998)

(“The threshold questions in every negligence per se case are whether the plaintiff belongs to the

class that the statute was intended to protect and whether the plaintiff’s injury is of a type that the

statute was designed to prevent.”).

Hernandez did not respond to the negligence per se portion of the motion, and he did not

present any argument regarding negligence per se in his brief. Hernandez has waived any error

regarding the granting of summary judgment on his negligence per se claim. See Fred Loya Ins.

Agency, Inc. v. Cohen, 446 S.W.3d 913, 918 (Tex. App.—El Paso 2014, pet. denied) (citing

Merriman, 407 S.W.2d at 248).

Common-Law Fraud

As the basis for his fraud claim, Hernandez alleged Vazquez made a representation he

would forward the offer for the purchase of the subject property and that he did not in fact forward

the offer. Vazquez urged in his summary judgment motion Hernandez could not prove the making

of this statement constituted a cause of action for fraud, alleging specifically Hernandez could not

produce evidence of any of the elements of a common-law fraud claim as listed in Ernst & Young,

L.L.P. v. Pacific Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001).

Hernandez responded by claiming Vazquez’s statement he had forwarded the offer and

later admission he had not forwarded the offer satisfies the element of the first element of his fraud

claim. Hernandez then argued the remainder of Vazquez’s no-evidence points on the elements of

fraud are general allegations that he had no evidence of the other elements of a fraud claim, and

he avers the motion is legally insufficient regarding common-law fraud. He cited Neurodiagnostic

Tex, L.L.C., v. Pierce, 506 S.W.3d 153, 177 (Tex. App.—Tyler 2016, no pet.), for the proposition

that a no-evidence motion that does not specifically challenge a particular element or is conclusory

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is legally insufficient. On that basis, Hernandez offered no more proof on the remaining elements

of common-law fraud.

The relevant portion of Neurodiagnostic involved a no-evidence motion for breach of

fiduciary duty that the Tyler court deemed to be insufficient. That motion listed no elements of

breach of fiduciary duty and did not allege no evidence on any element of fiduciary duty at all;

instead, it made a general allegation that there was no evidence of breach of fiduciary duty. See

Neurodiagnostic, 506 S.W.3d at 177.

Hernandez confuses a no-evidence motion on no specific element of a claim with a no-

evidence motion on ALL elements of a claim. Vazquez urged Hernandez could not produce

evidence of any of the elements of his claim for fraud. Vazquez first listed each element of a fraud

claim with a case citation, then recited the factual basis of Hernandez’s claim from Hernandez’s

original complaint, then stated, listing each element, that Hernandez could not meet any of the

elements. Finally, Vazquez stated the evidence conclusively establishes the opposite. We disagree

with Hernandez and hold Vazquez’s no-evidence motion regarding fraud is legally sufficient.

Hernandez failed to produce any evidence to controvert Vazquez’s allegations that he had

no evidence to establish the last three elements of the fraud claim. The court did not err in granting

summary judgment on the issue of common-law fraud.

Negligent Misrepresentation

Hernandez’s claim of negligent misrepresentation is based on the following behavior of

Vazquez: failure to submit offers and counteroffers objectively and as quickly as possible,

misleading the owner as to the market value of the property, and misleading Hernandez as to

whether he submitted a bona fide offer to the owner.

As with the previous claim, Vazquez urged Hernandez cannot produce evidence on any of

the elements of negligent misrepresentation. Again, Vazquez listed all the elements, with a case

citation as a reference, and specifically stated that Hernandez failed to raise evidence as to any of

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the elements. Then Vazquez specifically stated, with a separate statement for each, there is no

evidence that meets each element. Vazquez stated:

First, there is no evidence that Defendant Vazquez made any actionable
representation to Plaintiff in the course of the transaction at issue.

Second, there is no evidence that Defendant Vazquez supplied false information for
the guidance of Plaintiff or any other relevant person.

Third, there is no evidence that Defendant Vazquez failed to exercise reasonable
care or competence in obtaining or communicating any allegedly false information.

Fourth, there is no evidence that Plaintiff justifiably relied on any actionable
representation by Defendant Vazquez.

Fifth, there is no evidence that any actionable representation by Defendant Vazquez
proximately caused any of the Plaintiff’s alleged injuries.

For these elements, Vazquez cited Miller v. LandAmerica Lawyers Title of El Paso, 362

S.W.3d 842, 845 (Tex. App.—El Paso 2012, no pet.).

Hernandez addressed only justifiable reliance in his response. As to the remainder of the

elements, he again stated Vazquez’s motion is conclusory and legally insufficient. Again, he relied

on Neurodiagnostic, 506 S.W.3d at 177.

As with the previous claims, we conclude Vazquez’s motion sufficient. Hernandez’s

response was insufficient to raise any evidence on all the elements of the negligent

misrepresentation claim except justifiable reliance. Granting no-evidence summary judgment on

negligent misrepresentation was not error.

Exemplary Damages

Because we have decided Hernandez did not meet his burden of producing more than a

scintilla of evidence on any of his causes of action, we do not need to address his claim for

exemplary damages.

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 CONCLUSION

Hernandez did not preserve error as to his negligence per se claim. He did not present more

than a scintilla of evidence regarding at least one element of the remainder of his causes of action.

With no remaining viable causes of action, his claim for exemplary damages fails. The trial court

did not err in granting no-evidence summary judgment on all Hernandez’s claims. We affirm the

judgment of the trial court.

SANDEE MARION, Chief Justice (Ret.)

November 8, 2022

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

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