Robert Flynn and Wian Flynn v. Keller Williams Inc. Realtors and the Boehm TeamAppeal from 216th Judicial District Court of Kendall County (Memorandum Opinion )

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Laws-info.com » Cases » Texas » 4th District Court of Appeals » 2013 » Robert Flynn and Wian Flynn v. Keller Williams Inc. Realtors and the Boehm TeamAppeal from 216th Judicial District Court of Kendall County (Memorandum Opinion )

State: Texas

Court: Texas Northern District Court

Docket No: 04-12-00307-CV

Case Date: 03/13/2013

Plaintiff: Robert Flynn and Wian Flynn

Defendant: Keller Williams Inc. Realtors and the Boehm TeamAppeal from 216th Judicial District Court of Kendal

Preview:Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-12-00307-CV Robert FLYNN and Wian Flynn, Appellants v. KELLER WILLIAMS INC. REALTORS and The Boehm Team, Appellees From the 216th Judicial District Court, Kendall County, Texas Trial Court No. 10-334-A Honorable N. Keith Williams, Judge Presiding Opinion by: Sitting: Sandee Bryan Marion, Justice Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Rebeca C. Martinez, Justice

Delivered and Filed: March 13, 2013 AFFIRMED This appeal arises from a take-nothing summary judgment rendered in favor of appellees, Keller Williams, Inc. ("Keller Williams") and The Boehm Team. We affirm. BACKGROUND Appellants, Robert and Wian Flynn, own two properties in Boerne, Texas: 101 Shady Ridge and 309 River Ridge. The Flynns entered into a Residential Real Estate Listing

Agreement to sell the house located at 101 Shady Ridge. The agreement identified the brokers as Keller Williams and Amy Boehm-The Boehm Team. The Flynns also intended to sell the

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house located at 309 River Ridge at a future date. At some point in time, another Keller Williams real estate agent, Emily Buttlar, told Boehm that Buttlar's client, Jim Peterson, was interested in buying the 309 River Ridge house. In late March 2008, the Flynns, their son-in-law Brian Tedder, Peterson, and Boehm all met at the 309 River Ridge house. By the end of the meeting, the Flynns agreed to allow Peterson and his wife to move into the house without an earnest money deposit. A closing date was set for April 21, 2008. The closing never occurred, and eventually the Flynns evicted the Petersons, who had been enjoying several rent-free months. The Flynns sued Keller Williams, The Boehm Team (naming Amy Boehm as the principal), and Emily Buttlar, alleging common law fraud and statutory fraud pursuant to Texas Business and Commerce Code section 27.01. The Flynns alleged they hired the defendants to be their broker and to list their real property for sale, but instead, the defendants acted as agent for the potential buyer and, in acting as agent for both parties, committed common law and statutory fraud. According to the Flynns, they wanted to first sell the 101 Shady Ridge house, but based on conversations with, and assurances made by Boehm and her agent Buttlar, the Flynns decided to sell their house at 309 River Ridge to Peterson. The Flynns alleged both Boehm and Buttlar made representations concerning Peterson's creditworthiness. Finally, the Flynns alleged there was a conspiracy between Buttlar, The Boehm Team, and Keller Williams under which The Boehm Team and Keller Williams would represent the Flynns and split the fee while Buttlar represented the buyer in the same transaction. In the course of discovery, the defendants served the Flynns with requests for admissions, which the Flynns failed to timely answer. The Flynns later filed a motion to strike the deemed admissions and extend the discovery deadline. About a month later, Keller Williams and The Boehm Team (hereinafter, collectively, "appellees") moved for a traditional summary judgment
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and a no-evidence summary judgment on the Flynns' common law fraud and statutory fraud causes of action. Appellees also filed a motion for sanctions against the Flynns. The Flynns responded. On March 16, 2012, the trial court signed two orders: (1) striking the deemed admissions and extending the discovery deadline to respond to the request for admissions to the date the response was filed, and (2) granting appellees' motion for summary judgment, without stating its grounds, denying the motion for sanctions, and severing out the Flynns' claims against Buttlar. On appeal, the Flynns assert the trial court erred in rendering summary judgment in favor of appellees. STANDARD OF REVIEW We review the grant of a summary judgment de novo. Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We first review the trial court's summary judgment under the no-evidence standard of Texas Rule of Civil Procedure 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). After an adequate time for discovery, a party without the burden of proof may, without presenting evidence, seek summary judgment on the ground that there is no evidence to support one or more essential elements of the non-movant's claim or defense. TEX. R. CIV. P. 166a(i). The trial court is required to grant the motion unless the non-movant produces more than a scintilla of summary judgment evidence that raises a genuine issue of material fact on each challenged element. Id. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). If the non-movant fails to produce more than a scintilla of evidence under this burden, then there is no need to analyze whether the movant's proof satisfied the traditional summary judgment standard of Rule 166a(c). Ridgway, 135 S.W.3d at 600.

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SUMMARY JUDGMENT EVIDENCE Appellees' no-evidence motion for summary judgment alleged no evidence on each element of the Flynns' two causes of action. The elements of common law fraud are: (1) a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury. Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 727 (Tex. 2001). The elements of statutory fraud in a real estate transaction are a: "(1) false representation of a past or existing material fact, when the false representation is (A) made to a person for the purpose of inducing that person to enter into a contract; and (B) relied on by that person in entering into that contract; or (2) false promise to do an act, when the false promise is (A) material; (B) made with the intention of not fulfilling it; (C) made to a person for the purpose of inducing that person to enter into a contract; and (D) relied on by that person in entering into that contract." TEX. BUS. & COM. CODE ANN.

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