                                    DISSENTING OPINION

                                         No. 04-09-00397-CV

                                          George LESIEUR,
                                              Appellant

                                                   v.

 Timothy FRYAR, Sandra Fryar, Cynthia Morales d/b/a Morales Realty, and Cynthia Gonzales,
                                      Appellees

                     From the 38th Judicial District Court, Medina County, Texas
                                  Trial Court No. 07-07-18515-CV
                         Honorable Mickey R. Pennington, Judge Presiding

Opinion by: Marialyn Barnard, Justice
Dissenting opinion by: Phylis J. Speedlin, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: July 14, 2010

           The majority of the court reasons that the two inspection reports, the Adams Report and the

NPI Report, say the same thing in different words, and therefore concludes that Lesieur’s own pre-

purchase inspection negates the elements of reliance and causation as a matter of law, warranting

summary judgment on all of Lesieur’s claims. I respectfully disagree because, while the majority

correctly recites the applicable standard of review for a traditional summary judgment, it misapplies

the standard to the evidence in this case.

           To be entitled to a traditional summary judgment, a movant must show there is no genuine

issue as to any material fact and the movant is entitled to judgment as a matter of law on a ground

expressly stated in its summary judgment motion. TEX . R. CIV . P. 166a(c); Provident Life &

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003). In conducting our de novo review of
Dissenting Opinion                                                                    04-09-00397-CV



an order granting a traditional summary judgment motion, we must view the evidence, and all

reasonable inferences therefrom, in the light most favorable to the non-movant, in this case in favor

of Lesieur. Id. at 215-16. I believe the majority’s analysis draws evidentiary inferences that favor

the movants in reaching its conclusion that there is no disputed issue of material fact.

        As more thoroughly described in the majority opinion, after Lesieur moved into his home in

2005, he began noticing signs of foundation problems. Upon discovering that he had not received

a prior inspection report obtained by the Fryars in 2002, Lesieur brought suit against the Fryars and

Morales Realty for fraud, negligence, negligent misrepresentation, DTPA violations, and civil

conspiracy. The Fryars and Morales Realty sought summary judgment on several grounds, including

that the elements of reliance and causation were negated as a matter of law because Lesieur had

obtained his own independent inspection prior to his purchase. The trial court granted summary

judgment in favor of the Fryars and Morales Realty. This appeal followed.

        In affirming the summary judgment in favor of the Fryars and Morales Realty, the majority

frames the relevant issue as “whether the Fryars and Morales Realty knew ‘anything more or

different’ about the foundation based on the Adams Report, which was withheld from Lesieur, than

Lesieur did based on his own inspection report.” See Lim v. Lomeli, No. 04-06-00389-CV, 2007 WL

2428078, at *4 (Tex. App.—San Antonio Nov. 28, 2007, no pet.) (mem. op.) (holding that

information from inspection report concerning defect was equally available to buyer, thereby

negating causation and reliance as matter of law). After conducting a side-by-side comparison of

the “Structural Systems” sections of the two reports, the majority states that “it is evident that the

differences between the reports are merely a matter of word usage, not substance,” and concludes

the NPI Report provided Lesieur with the “same evidence of structural movement” as noted in the


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Dissenting Opinion                                                                      04-09-00397-CV



Adams Report. I respectfully disagree that the differences between the two reports are merely

matters of word usage and not substance. While the language differences are clearly the result of

word choice, they also convey a substantive difference in the existing defects found and the level of

warning conveyed.

        First, the verbiage used in the two inspection reports under “Structural Systems” is

significantly different in at least two areas: (i) with regard to “structural movement” of the

foundation; and (ii) with regard to a “visibly unlevel” floor. In the “Foundations” section of the

Adams Report, the report received by the Fryars and Morales Realty in 2002, the inspector rendered

a “Performance Opinion,” expressly stating, “[s]igns of structural movement noted, however, the

foundation is supporting the structure at this time.” He listed the evidence of “structural movement”

as: (i) cracks in walls and/or ceilings; (ii) door frames out of square; and (iii) cracks in brick/stone

veneers. Clearly, the summary judgment evidence establishes the Adams inspector observed existing

structural movement in 2002. This fact of existing “signs of structural movement” in 2002, along

with the inspector’s warning that the foundation was supporting the structure “at this time,” supports

an inference that the structural movement could worsen in the future.

        Even the majority agrees that the NPI Report, by contrast, does not contain an express finding

of structural movement. In fact, the “Foundations” section of the 2005 NPI Report states that “no

structural cracks were observed around the perimeter.” The report does find “stress cracks” in the

floor tile, as well as the grout joints, at the carport area and inside the house in spots. The NPI

Report notes that, “[t]hese types of cracks usually reflect what is occurring on the slab itself” and

“recommend[s] active monitoring” of the foundation. Comparing the two reports, not only is the

wording facially different but the findings in the Adams Report are qualitatively stronger than those


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Dissenting Opinion                                                                      04-09-00397-CV



in the NPI Report. The use of the qualifier “usually” in the NPI Report is less affirmative, and

provides a weaker warning to the buyer than the Adams Report’s more affirmative conclusion that

there were existing “signs of structural movement” in the foundation. Further, the NPI report limited

its findings of “stress cracks” to only certain areas – the carport and “inside [the] house in spots.”

These differences alone create a factual issue precluding summary judgment. The majority explains

away these substantive differences by finding, without supporting summary judgment evidence, that

“cracking in the interior of a home is, axiomatically, the result of movement.” The majority then

concludes that the NPI observation of “stress cracks” is the equivalent of the Adams observation of

“signs of structural movement.” This reasoning ignores the NPI statement that there were “no

structural cracks” observed around the perimeter. In concluding the reports’ findings as to

foundation are the same, the majority improperly draws inferences in favor of the movants.

        With regard to the “Ceilings and Floor” section of the two reports, the Adams Report states,

“the floors are visibly unlevel (front center bedroom),” while the NPI Report makes no mention of

an unlevel floor. Instead, the NPI Report merely states that “stress cracks” were observed in the

floor tile and grout joints inside the house in various spots. Again, comparing the two reports, not

only is the wording facially different, but the Adams findings are substantively different than those

in the NPI Report. A warning that the floor is “visibly unlevel” is more significant than that the floor

tile has “stress cracks.” Despite this express difference between the two reports, the majority

concludes that no fact issue exists as to whether the Fryars and Morales Realty knew anything more

or different than Lesieur based on the undisclosed Adams Report. The majority infers that, “if a

floor was ‘visibly unlevel,’ he [Lesieur] would have had personal knowledge of it based on his walk-

through” of the home prior to his purchase. The majority reaches this conclusion in favor of the


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Dissenting Opinion                                                                      04-09-00397-CV



movants despite the lack of summary judgment evidence to support the inference. In fact, to the

contrary, in his deposition Lesieur testified that he did a final walk-through of the property before

closing, but saw nothing that caused him any “alarm or concern.”

        The majority bolsters its conclusion that the two inspection reports are the same by noting

that neither inspector checked the box requiring immediate repair of the foundation. Accordingly,

the majority draws the inference from the absence of a check mark that “neither inspector believed

the home’s foundation was currently unsound or in a state of disrepair.” While both inspectors

checked the box showing the foundation had been “Inspected,” rather than the box showing the

foundation was “Not Functioning or In Need of Repair,” there is no summary judgment evidence

explaining the criteria used, or the weight to be given to checked or unchecked boxes in the presence

of written findings. As discussed supra, there are substantive differences in the inspectors’

affirmative written findings as to the foundation.

        Finally, even if I were to agree that the two inspection reports are the “same,” or equivalent,

there was additional summary judgment evidence presented as to Lesieur’s knowledge and reliance

that the majority does not consider. Lesieur’s affidavit states he had no knowledge of the prior home

inspection by Adams before the closing, and if he had known about the 2002 Adams inspection prior

to his purchase he “would have had serious concerns about the condition of the home.” Specifically,

Lesieur states he “would have had the foundation inspected,” and if he had “known the home had

foundation problems, [he] would not have purchased it.” In addition, in his deposition, Lesieur

testified that when he viewed the property with the realtor he noticed “a couple of cracks in the tile,”

but “figured they were probably moving furniture, that they had dropped the furniture on it and that

made it crack,” or the cracks were due to “improper laying of the cement beneath the tile.” To repair


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Dissenting Opinion                                                                       04-09-00397-CV



the cracked tiles, Lesieur agreed the sellers could simply supply replacement tiles. Lesieur testified

that he “relied very heavily on the seller’s disclosure . . . [which] specified that there was no problem

with foundation or interior walls or floors.” Lesieur also relied on his own independent inspector,

who found no foundation problems. Specifically, Lesieur stated he relied on his inspector’s finding

that there were “no structural cracks” around the perimeter; he did not have any discussions with the

inspector about what he meant by that statement. This additional summary judgment evidence, when

viewed in the light most favorable to Lesieur, raises fact issues that (i) Lesieur relied on the sellers’

representations there were no foundation problems and no previous inspections, and (ii) if Lesieur

had seen the Adams Report, and known about its express finding of “structural movement” in the

foundation, he would have acted differently. Lesieur’s affidavit and deposition testimony is some

evidence that he was assured there were no previous inspections and no existing foundation

problems, and he relied on those assurances by the Fryars and Morales Realty in proceeding with the

purchase of the property. Other summary judgment evidence shows the Fryars and Morales Realty

did have more knowledge than Lesieur prior to the closing because they knew about the prior Adams

Report and its findings with regard to structural movement of the foundation. Cf. Lim, 2007 WL

2428078, at *4 (holding there was no evidence that the seller knew the home suffered from greater

defects than revealed in the inspection reports and withheld such knowledge from the buyers).

        In summary, I believe that a material fact question exists on the elements of causation and

reliance. Specifically, I disagree with the majority’s conclusion that the differences between the two

inspection reports are minor, non-substantive differences of word choice that do not raise a disputed

fact issue. The finding of “signs of structural movement” in the foundation stated in the Adams

Report at least creates a fact question as to whether the first inspection report provided a stronger


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Dissenting Opinion                                                                       04-09-00397-CV



warning than the NPI Report which noted only “stress cracks” in the floor tiles and “no structural

cracks” around the perimeter. The Adams report finds an existing structural defect in the foundation,

although it did not require immediate repair, while the NPI Report affirmatively finds there are “no

structural cracks,” only stress cracks. Likewise, the observation in the Adams Report that one

bedroom had “visibly unlevel” floors at least creates a fact question as to whether that first inspection

report was more thorough, or possibly more accurate, than the second report by NPI, which noted

only “stress cracks” in the tile floor inside the house and made no mention of unlevel floors. I would

hold that the relevant portions of the two inspection reports are sufficiently different, and thus create

a fact question as to whether Lesieur had less knowledge than the Fryars and Morales Realty;

therefore, the elements of causation and reliance are not negated as a matter of law. Consequently,

I would hold the trial court erred in granting summary judgment on that basis.



                                                         Phylis J. Speedlin, Justice




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