                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-17-00789-CV

                                          Diana FARIAS,
                                             Appellant

                                                 v.

                       Ramon JUAREZ, Lydia Ramos and Pro Builders, Inc.,
                                        Appellees

                     From the 406th Judicial District Court, Webb County, Texas
                               Trial Court No. 2016-CVF-001006-D4
                            Honorable Oscar J. Hale, Jr., Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: December 5, 2018

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

           Diana Farias sued Ramon Juarez, Lydia Ramos and Pro Builders, Inc. asserting claims for

breach of contract, fraud in a real estate transaction, and violations of the Texas Deceptive Trade

Practices Act. The trial court granted a no evidence motion for summary judgment as to all of

Farias’s claims. We reverse the portions of the trial court’s judgment granting the no evidence

motion as to Farias’s fraud in a real estate transaction claim and her claim against Pro Builders for

breach of contract. We affirm the remainder of the trial court’s judgment.
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                                          BACKGROUND

       Farias filed the underlying lawsuit on April 19, 2016. On January 31, 2017, Juarez, Ramos,

and Pro Builders filed their no evidence motion for summary judgment. On March 1, 2017, Farias

filed a response to the motion attaching: (1) a copy of a New Home Contract between Farias and

Pro Builders, dated effective May 29, 2015, for the construction of a house; (2) copies of checks

for payments Farias made totaling $85,394.00; and (3) a certificate of occupancy for the house

dated February 29, 2016. On March 16, 2017, Farias filed a supplemental response to the motion

attaching copies of a series of text messages exchanged between Farias and Ramos with the first

text message sent on July 10, 2015, and the last text message sent on March 8, 2016. On September

5, 2017, the trial court signed an order granting the no evidence motion. Farias appeals.

                                     STANDARD OF REVIEW

       We review a trial court’s ruling on a motion for summary judgment de novo. Dall. Morning

News, Inc. v. Tatum, 554 S.W.3d 614, 624 (Tex. 2018). “When reviewing a summary judgment,

we take as true all evidence favorable to the nonmovant and we indulge every reasonable inference

and resolve any doubts in the nonmovant’s favor.” Id. (internal quotation omitted). A no evidence

motion is properly granted if the non-movant fails to produce no more than a scintilla of probative

evidence to raise a genuine issue of material fact as to an essential element of the non-movant’s

claim. Id. at 625. More than a scintilla of evidence exists if the evidence “would enable reasonable

and fair-minded people to differ in their conclusions.” Id. (internal quotation omitted). Less than

a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere

suspicion or speculation about a fact. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983);

Foreman v. Whitty, 392 S.W.3d 265, 274 (Tex. App.—San Antonio 2012, no pet.).




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              REQUISITES OF NO EVIDENCE MOTION FOR SUMMARY JUDGMENT

       A no evidence motion for summary judgment “must state the elements as to which there is

no evidence.” TEX. R. CIV. P. 166a(i). “The motion must be specific in challenging the evidentiary

support for an element of a claim or defense; paragraph (i) does not authorize conclusory motions

or general no-evidence challenges to an opponent’s case.” Id. cmt. “A no-evidence motion that

only generally challenges the sufficiency of the non-movant’s case and fails to state the specific

elements that the movant contends lack supporting evidence is fundamentally defective and cannot

support summary judgment as a matter of law.” Jose Fuentes Co. v. Alfaro, 418 S.W.3d 280, 283

(Tex. App.—Dallas 2013, pet. denied). Stated differently, “[i]f a no-evidence motion for summary

judgment is not specific in challenging a particular element or is conclusory, the motion is legally

insufficient as a matter of law and may be challenged for the first time on appeal.” Callaghan

Ranch, Ltd. v. Killam, 53 S.W.3d 1, 3 (Tex. App.—San Antonio 2000, pet. denied).

                                     BREACH OF CONTRACT

       In her first issue, Farias contends the trial court erred in granting the no evidence motion

for summary judgment as to her breach of contract claim. To prove breach of contract, a plaintiff

must establish the following elements: (1) the existence of a valid contract; (2) the plaintiff

performed or tendered performance; (3) the defendant breached the contract; and (4) the plaintiff

sustained damages as a result of the breach. Toth v. Sears Home Improvement Products, Inc., 557

S.W.3d 142, 157 (Tex. App.—Houston [14th Dist.] 2018, no pet.); Brooks v. Excellence Mortg.,

Ltd., 486 S.W.3d 29, 36 (Tex. App.—San Antonio 2015, pet. denied).

       In their no evidence motion, Juarez, Ramos, and Pro Builders asserted Farias could produce

no evidence of the existence of a valid contract. They also asserted Farias had no evidence that

any of them breached a contract.



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       Farias produced a copy of a New Home Contract that was entered into between herself and

Pro Builders effective May 29, 2015, for the construction of a house. The contract contains all of

the elements necessary to establish an enforceable contract. E-Learning LLC v. AT & T Corp.,

517 S.W.3d 849, 858 (Tex. App.—San Antonio 2017, no pet.) (“A valid, enforceable contract

exists when the following elements are shown: (1) an offer; (2) an acceptance in strict compliance

with the terms of the offer; (3) a meeting of the minds on the essential terms of the contract (mutual

assent); (4) each party’s consent to the terms; and (5) execution and delivery of the contract with

the intent that it be mutual and binding.”). The existence and validity of the contract is further

evidenced by text messages between Farias and Ramos referencing the on-going construction of

the house pursuant to the contract. As the appellees note in their brief, however, the only party to

the contract was Pro Builders; therefore, Farias did not produce any evidence of a contract between

herself and either Juarez or Ramos.

       With regard to Pro Builders, the appellees’ brief asserts “there was no evidence that Pro

Builder breached its contract with [Farias], or that [Farias] had suffered any damages by such a

breach.” The no evidence motion, however, did not challenge the damage element of Farias’s

breach of contract claim. Instead, the motion stated, “Plaintiff has no evidence that Defendants

breached the contract. Therefore, Plaintiff has no evidence that Defendants[’] breach caused the

Plaintiff injury.” Read in context, we hold the motion did not challenge the damage element of

Farias’s breach of contract claim.

       With regard to the breach element, the New Home Contract provided a blank for the date

the construction would be substantially complete and ready for occupancy. Although the parties

did not complete the blank with a specific date, the contract further provided “in no event may the

time for substantial completion extend beyond the Closing Date.” Finally, the contract provided

the closing date would be September 30, 2015. Farias also produced a certificate of occupancy
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that was not issued until February 29, 2016. This evidence is sufficient to satisfy Farias’s burden

to produce more than a scintilla of evidence raising a genuine issue of material fact as to Pro

Builder’s breach.

       Although the trial court properly granted the no evidence motion as to Farias’s breach of

contract claims against Juarez and Ramos, the trial court erred in granting the no evidence motion

as to Farias’s breach of contract claim against Pro Builders.

                     STATUTORY FRAUD IN A REAL ESTATE TRANSACTION

       In her second issue, Farias contends the trial court erred in granting the no evidence motion

as to her claim for fraud in a real estate transaction. Farias first asserts the no evidence motion

failed to challenge specific elements of her claim. We agree.

       “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.’”

Flynn v. Keller Williams Inc Realtors., No. 04-12-00307-CV, 2013 WL 979196, at *2 (Tex.

App.—San Antonio Mar. 13, 2013, no pet.) (mem. op.) (quoting TEX. BUS. & COM. CODE ANN.

§ 27.01(a)). Although the no evidence motion acknowledged Farias had alleged Juarez, Ramos,

and Pro Builders “made a false representation of fact, made false promise or promise was made

for the purpose of inducing [Farias] to enter a contract,” the motion stated Juarez, Ramos and Pro

Builders “moves [sic] for summary judgment for the reason that Plaintiff has no-evidence to

sustain a cause of action against them for Fraud.” Because the motion is general and conclusory

and does not specifically challenge a particular element of Farias’s claim for fraud in a real estate
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                                                                                                          04-17-00789-CV


transaction, “the motion is legally insufficient as a matter of law.” Callaghan Ranch, Ltd., 53

S.W.3d at 3. Accordingly, the trial court erred in granting the no evidence motion as to this claim.

                                       DECEPTIVE TRADE PRACTICES ACT

           In her third issue, Farias contends the trial court erred in granting the no evidence motion

as to her DTPA claim.

           In general, the elements of a claim under the DTPA are (1) the plaintiff is a consumer, (2)

the defendant engaged in false, misleading, or deceptive acts, and (3) these acts were a producing

cause of the consumer’s damages. Doe v. Boys Clubs of Greater Dall., Inc., 907 S.W.2d 472, 478

(Tex. 1995); Williamson v. Howard, 554 S.W.3d 59, 70 (Tex. App.—El Paso 2018, no pet.); Garza

v. Garza, No. 04-11-00310-CV, 2013 WL 749727, at *7 (Tex. App.—San Antonio Feb. 27, 2013,

no pet.) (mem. op.). Reliance is also a necessary element of a DTPA claim based on false,

misleading, or deceptive acts. Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817, 824 (Tex.

2012); Garza, 2013 WL 749727, at *7.

           In the section of Farias’s petition entitled “Deceptive Trade Practices, Farias alleged the

appellees: (1) assured her they “would get [her] pre-approved for financing on the house;” (2)

misrepresented the construction site was ready for construction on the date the contract was signed;

(3) misled Farias “by giving [her] construction completion dates that never materialized, all the

while promoting the sale of the house in question to the general public;” and (4) refused to refund

the money she tendered to the appellees. 1 In the no evidence motion, the appellees asserted,


1
    The section of Farias’s petition entitled “Deceptive Trade Practices” alleged the following:

                The Deceptive Trade Practices Act, (DTPA), Texas Business and Commerce Code §17.41 et
           seg. [sic], specifically includes real property within its definition of goods and a developer, builder,
           or other person in real estate business come within the definition of one engaging in trade or
           commerce. Relief under DTPA includes treble damages together with attorney’s fees.
                Defendant Raymond Juarez does business under the name of Pro Builders Inc., as a residential
           building contractor. Defendant Lydia Ramos is Pro Builders’ real estate sales agent. Defendant
           Lydia Ramos was instrumental in getting Plaintiff to enter into a new home construction contract

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“Plaintiff has no evidence alleging Defendant made a false, misleading, or deceptive act or practice

that is specifically enumerated in the ‘laundry list’ found in Texas Business & Commerce Code

§ 17.46(b) and that was relied on by the plaintiff to the Plaintiff’s detriment.” We construe the

motion as challenging the first element of Farias’s DTPA claim, i.e., the absence of evidentiary

support that they engaged in a false, misleading, or deceptive act or practice. 2

         The only evidence Farias produced in support of her DTPA claim was copies of a series of

text messages between herself and Ramos.                     Although the text messages contain contact

information for mortgage companies and references to a mortgage, they do not contain any

evidence of a misrepresentation regarding the construction site approval or the construction

completion dates. Furthermore, the references to a mortgage at most create a mere suspicion or

speculation that the appellees assured Farias they “would get [her] pre-approved for financing.”

Finally, although Farias produced the checks showing she paid the appellees money in connection



         with Pro Builders Inc. for the house in question. Defendants assured Plaintiff that Defendants would
         get Plaintiff pre-approved for financing on the house in question. Defendants materially
         misrepresented to Plaintiff, upon the signing of the earnest money contract in April 2015, that the
         agreed to construction site was ready for constructing knowing very well that that specific
         construction site had not yet been approved by the City of Laredo Planning and Zoning Department;
         it was not until July 16, 2015 that the City of Laredo issued Defendants the building permit to
         Defendants [sic] for the construction of the home in question.
              Defendants referred Plaintiff to several mortgage financing businesses for processing and
         approval of Plaintiffs mortgage loan application. None of those businesses ever approved Plaintiff’s
         loan application as per the earnest money contract agreed to terms which called for Plaintiff to come
         up with 20% of the sales price which was $74,920; Plaintiff gave Defendants $14,000 more for a
         total of $88,952.00. This is as much as Plaintiff could afford.
              Defendants continued to mislead Plaintiff by giving Plaintiff construction completion dates that
         never materialized, all the while promoting the sale of the house in question to the general public.
              Defendants have constantly refused to refund Plaintiff the monies ($88,952.00) that she has
         tendered to Defendants even though Defendants have sold the house in question.
2
  In her brief, Farias notes a DTPA claim also can be based on: (1) a breach of an express or implied warranty; (2) any
unconscionable action or course of action; or (3) the use or employment of any act or practice in violation of the Texas
Insurance Code. TEX. BUS. & COM. CODE ANN. § 17.50 (a)(2),(3), (4). Farias asserts the no evidence motion failed
to challenge these possible bases for a DTPA claim; therefore, summary judgment could not be granted as to those
bases. The appellees’ no evidence motion, however, was only required to challenge the elements of claims Farias
actually pled, and the section of Farias’s petition entitled “Deceptive Trade Practices” did not contain any allegations
regarding a breach of warranty, an unconscionable action or course of action, or the use or employment of any act or
practice in violation of the Texas Insurance Code.

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with the construction, Farias did not produce any evidence that the appellees refused to refund the

money. Although we could speculate Farias would not likely have sued the appellees if the money

had been refunded, speculation is not evidence, and Farias had the burden to produce more than a

scintilla of probative evidence to raise a genuine issue of material fact as to this element of her

DTPA claim. Dall. Morning News, Inc., 554 S.W.3d at 625.

                                    MOTION FOR NEW TRIAL

       In her fourth issue, Farias contends the trial court erred in allowing her motion for new trial

to be overruled by operation of law. Farias contends the trial court should have granted her motion

for new trial in the interest of justice. Farias’s only argument in support of this issue is that she

raised fact issues regarding her claims sufficient to defeat the no evidence motion for summary

judgment and the trial court should “correct its mistake.” Having previously addressed the

arguments Farias raised with regard to the trial court’s ruling on the no evidence motion, we do

not further address this issue.

                                           CONCLUSION

       The trial court erred in granting the no evidence motion as to Farias’s fraud in a real estate

transaction claim and her claim against Pro Builders for breach of contract. Accordingly, the trial

court’s judgment as to those claims is reversed, and those claims are remanded to the trial court

for further proceedings. The remainder of the trial court’s judgment is affirmed.

                                                  Marialyn Barnard, Justice




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