                               NUMBER 13-16-00370-CV

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


JEFFERY PEACE AND
CAROLINE PEACE,                                                                          Appellants,

                                                        v.

ITCOA, LLC D/B/A
INDEPENDENCE TITLE COMPANY;
MONA McMAHAN; AND
WM. BRIAN McMAHAN, P.C.,                                                                   Appellees.


                       On appeal from the 261st District Court
                             of Travis County, Texas.


                         MEMORANDUM OPINION1

              Before Justices Rodriguez, Longoria, and Hinojosa
         1 This appeal was transferred to this Court from the Third Court of Appeals by order of the Texas

Supreme Court. See TEX. GOV’T CODE ANN. § 22.220(a) (West, Westlaw through 2017 1st C.S.)
(delineating the jurisdiction of appellate courts); id. at §73.001 (West, Westlaw through 2017 1st C.S.)
(granting the supreme court the authority to transfer cases from one court of appeals to another at any time
that there is “good cause” for the transfer).
                      Memorandum Opinion by Justice Hinojosa

        Appellants Jeffery Peace and Caroline Peace, the purchasers of real estate in the

City of Westlake Hills, Texas (the City), appeal from a final judgment providing that they

take-nothing from appellees Independence Title Company (ITC), Mona McMahan, and

Wm. Brian McMahan, P.C. (collectively the McMahans). 2 In two issues, the Peaces

complain that the trial court erred in (1) granting the motions for summary judgment,

advanced on no-evidence and traditional grounds, filed by ITC and the McMahans; and

(2) denying their motion for partial summary judgment. We affirm.

                                              I. BACKGROUND 3

        The facts of this case are largely undisputed and generally begin with an oral

promise to the City by Amy Hovis to donate a fifteen foot right-of-way for expansion of a

roadway from property that Hovis later sold to the Peaces for $635,000 and which is the

subject of this suit on appeal.            The summary-judgment record reveals that the City

agreed to partition Hovis’s single lot into two lots in exchange for Hovis’s donation. The

outline of this agreement was written in the minutes of an August 20, 2011 city council

meeting.      Approximately a month later, the City partitioned the lots by filing a plat



          2 After the trial court signed the final judgment and the Peaces filed their notice of appeal, the City

filed its own notice of appeal. It has since filed with us a motion for voluntary dismissal. See TEX. R. APP.
P. 42.1(a), (b). We grant the City’s motion for voluntary dismissal and dismiss it from this appeal.
Additionally, Alan Bojorquez, David Claunch, and Robert Wood, while listed on the style of the final
judgment and notices of appeal and in the style of this case in this Court, are not parties to this appeal.
Accordingly, we remove the City, Bojorquez, Claunch, and Wood from the style of this case. Lastly, the
Peaces’ brief fails to assail the take nothing relief awarded in Chicago Title Insurance Company’s favor;
accordingly, we remove it from the style of this case.
         3 Because this is a memorandum opinion and the parties are familiar with the facts, we will not

recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons
for it. See TEX. R. APP. P. 47.4.
                                                       2
vacation with the Travis County Clerk. The partition created two parcels of land that face

opposite roads—101 McConnell Drive and 102 Westhaven Drive. A drawing of the

property provided by the Peaces’ in their summary-judgment response depicts the

following:




Hovis never reduced her oral donation offer to writing.      Instead, Hovis entered an

agreement to sell the property to the Peaces for $635,000, without first transferring the

right-of-way.

       According to the summary-judgment evidence, Hovis, ITC, and the McMahans did

not inform the Peaces of the right-of-way agreement before they closed on the property.

Nevertheless, during the purchase-option period, the Peaces were made aware of the

possibility of a roadway expansion. On October 19, 2011, Hovis’s real estate agent

                                            3
forwarded to the Peaces an email message from Jean Goehring, Hovis’s husband, which

stated:

               I know that title and survey review period begins today, and I wanted
       to pass [on] a drawing that I prepared to illustrate for Jeff and Carrie [Peace]
       a proposed right of way for 101 McConnell in the event of a possible
       expansion of Bee Cave. The expansion of Cave Rd. has been discussed
       for the past 15 or so years and would require the acquisition of right of way
       for the entire length of Bee Cave Rd.—including the dozens of commercial
       owners. This was discussed when we acquired 101 Westhaven and 102
       Westhaven and when Chris and Gerri bought 100 Westhaven. Any
       expansion would also require the consent of the other 3 residential property
       owners adjacent to 101 and all have said no. No building setbacks would
       be affected and we are really talking about a few feet inside the steel fence
       that is currently there. If Jeff has any questions, please have him call me
       at the number below . . . .

              As you know, I’m currently on City Council and can share any past
       or present info on this . . . .

The uncontroverted summary-judgment evidence revealed that the day before closing,

Hovis’s real estate agent again informed the Peaces of the possible roadway expansion,

directly writing to them:

              Congrats on your imminent two closings tomorrow. I left you a
       voicemail today Jeff [Peace] regarding this “right of way” outlined in the
       email sent 10/19 on the McConnell lot. (see attached survey)

               Apparently, it’s not in writing anywhere (nor recorded) with the city of
       Westlake (the red lines drawn on survey.) There may be a time they
       attempt to put it in writing with you the new owner, but don’t know when or
       if that will ever happen.

              Could be to your advantage, but nonetheless wanted you to know.

             Amy signed her paperwork today, so it’ll just be a matter of funding
       tomorrow.

             Look forward to seeing you both once you’re down here. Call at
       anytime if you need me.


                                              4
      After the sale, according to the summary-judgment evidence, the City sought to

have the Peaces effectuate Hovis’s oral promise; the Peaces declined the City’s request.

On October 23, 2012, the City’s mayor wrote to the Peaces, recounting the following:

             Please sign the enclosed Right of Way Warranty, have them
      notarized, and return them to City Planner Davin Fillpot at City Hall at 911
      Westlake Drive. (The City offers Notary services for free at City Hall)

             If we have not received the signed and notarized documents by
      November 6, 2012, the City will take the necessary steps to undo the plat
      vacation that was approved on August 10, 2011. That will result in 102
      Westhaven Drive and 101 McConnell Drive once again being combined into
      a single, legal lot.

The attached right-of-way warranty provided for a thirty-foot right-of-way rather than the

fifteen feet Hovis had orally promised. According to the summary-judgment affidavit

testimony from Caroline Peace, in 2013 the Peaces conducted several meetings to

negotiate an agreement with various stakeholders, including Hovis, the City’s mayor, the

City’s administrator, and city council members. No compromise was reached. On June

26, 2013, the City stamped “VOID” on the previously-filed plat vacation, attached it to an

affidavit by the City secretary, and recorded the affidavit together with the voided plat

vacation with the Travis County Clerk.

      The Peaces sued, among others, ITC and the McMahans for common law fraud,

fraud by nondisclosure, conspiracy to commit fraud, negligent misrepresentation, breach

of fiduciary duty, and violations of the Texas Deceptive Trade Practices Act (DTPA).

Approximately a year after the Peaces filed suit, the City instituted condemnation

proceedings in the probate court to obtain the land it deemed necessary for the roadway

expansion. Later in the same proceeding against ITC and the McMahans, the Peaces


                                            5
asserted an inverse-condemnation claim against the City, contending that the filing of the

June 26, 2013 affidavit and voided plat vacation constituted a taking of property without

adequate compensation.

      ITC and the McMahans sought summary judgment on no-evidence and traditional

grounds on the contention that their failure to disclose Hovis’s oral promise did not cause

the damages for which the Peaces sought recovery.          The Peaces sought summary

judgment on traditional grounds on their breach of fiduciary duty claim.

      The trial court granted ITC and the McMahans interlocutory summary judgments

on all claims brought by the Peaces, and it denied the Peaces’ motion for summary

judgment on their claim for breach of fiduciary duty. The Peaces inverse-condemnation

claim against the City was then tried to a jury, which awarded $297,000. The trial court

signed a final judgment that incorporates the summary judgment orders, provides that the

Peaces take nothing from ITC and the McMahans, and awards the Peaces inverse-

condemnation damages in accordance with the jury’s verdict. This appeal followed.

                                      II. DISCUSSION

A.    Standard of Review

      A motion for summary judgment may be brought on no-evidence or traditional

grounds. See TEX. R. CIV. P. 166a(c), (i). A motion for no-evidence summary judgment

is equivalent to a motion for pretrial directed verdict, and we apply the same legal

sufficiency standard of review. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.

2006); Ortega v. City Nat’l Bank, 97 S.W.3d 765, 772 (Tex. App.—Corpus Christi 2003,

no pet.) (op. on reh’g). Such a motion should be granted if there is no evidence of at


                                            6
least one essential element of the claimant’s cause of action. Hamilton v. Wilson, 249

S.W.3d 425, 426 (Tex. 2008) (per curiam). The burden of producing evidence is entirely

on the non-movant; the movant has no burden to attach any evidence to the motion, and

if the non-movant produces evidence raising a genuine issue of material fact, summary

judgment is improper. TEX. R. CIV. P. 166a(i). All that is required of the non-movant is

to produce a scintilla of probative evidence to raise a genuine issue of material fact on

the challenged element. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167,

172 (Tex. 2003); Ortega, 97 S.W.3d at 772.

      “Less than a scintilla of evidence exists when the evidence is ‘so weak as to do no

more than create a mere surmise or suspicion of a fact.’” Ortega, 97 S.W.3d at 772

(quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)); see Forbes, 124

S.W.3d at 172. Conversely, more than a scintilla of evidence exists when reasonable

and fair-minded individuals could differ in their conclusions. Forbes, 124 S.W.3d at 172;

Ortega, 97 S.W.3d at 772 (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.

1994)). In determining whether the non-movant has produced more than a scintilla of

evidence, we review the evidence in the light most favorable to the non-movant, crediting

such evidence if reasonable jurors could and disregarding contrary evidence unless

reasonable jurors could not. Tamez, 206 S.W.3d at 582; City of Keller v. Wilson, 168

S.W.3d 802, 825, 827 (Tex. 2005).

      We review the trial court’s granting of a traditional motion for summary judgment

de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003);

Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.—Corpus Christi 2003, no pet.).


                                           7
When reviewing a traditional summary judgment, we must determine whether the movant

met its burden to establish that no genuine issue of material fact exists and that the

movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); see Sw. Elec.

Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). The movant bears the burden of

proof, and all doubts about the existence of a genuine issue of material fact are resolved

against the movant. See Sw. Elec. Power Co., 73 S.W.3d at 215. We take as true all

evidence favorable to the non-movant, and we indulge every reasonable inference and

resolve any doubts in the non-movant’s favor. Valence Operating Co. v. Dorsett, 164

S.W.3d 656, 661 (Tex. 2005).

      When granting a “hybrid” summary judgment motion—a no-evidence and

traditional summary judgment motion—we first employ the no-evidence summary

judgment standard of review. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600

(Tex. 2004). If summary judgment was not proper on no-evidence grounds, we then

employ the traditional summary judgment standard of review. See id. We will affirm a

summary judgment “if any of the theories presented to the trial court and preserved for

appellate review are meritorious.” Joe v. Two Thirty Nine J.V., 145 S.W.3d 150, 157

(Tex. 2004).

B.    Applicable Law

      The parties concede, and we agree, that causation is a common element in all six

of the claims asserted by the Peaces. The parties further concede, and we agree, that

the Peaces’ claims will depend on whether wrongful acts by ITC and the McMahans

“proximately caused” damages to the Peaces, whereas the Peaces’ DTPA claim


                                            8
implicates the distinct concept of “producing cause,” as discussed below. 4

       Proximate cause has two components: (1) foreseeability and (2) cause-in-fact.

Rodriguez–Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013); Del Lago Partners, Inc.

v. Smith, 307 S.W.3d 762, 774 (Tex. 2010). For a negligent act or omission to have been

a cause-in-fact of the harm, the act or omission must have been a substantial factor in

bringing about the harm, and absent the act or omission—i.e., but for the act or

omission—the harm would not have occurred. Rodriguez–Escobar, 392 S.W.3d at 113.

There may be more than one proximate cause of an occurrence. Del Lago Partners, 307

S.W.3d at 774.

       The Texas Supreme Court defined “producing cause” with respect to DTPA actions

as:

       a substantial factor in bringing about an injury, and without which the injury
       would not have occurred, [this definition] is easily understood and conveys
       the essential components of producing cause that (1) the cause must be a
       substantial cause of the event in issue and (2) it must be a but-for cause,
       namely one without which the event would not have occurred.

Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 46 (Tex. 2007). Producing cause, like

proximate cause, rests on proof of actual causation in fact; cause-in-fact is an element

common to both. General Motors Corp. v. Saenz, 873 S.W.2d 353, 357 (Tex. 1993).



       4  See First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017)
(breach of fiduciary duty elements); Bradford v. Vento, 48 S.W.3d 749, 754–55 (Tex. 2001) (fraud by
nondisclosure elements); In re First Merit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001) (common-law fraud
elements); Operation Rescue–Nat’l v. Planned Parenthood, 975 S.W.2d 546, 553 (Tex. 1998) (conspiracy
to commit fraud elements); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex. 1996) (DTPA claim
elements); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995) (DTPA claim
elements); Federal Land Bank Ass’n of Tyler v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991) (negligent
misrepresentation elements); Blankinship v. Brown, 399 S.W.3d 303, 308 (Tex. App.—Dallas 2013, pet.
denied) (fraud by nondisclosure elements); Morris v. JTM Materials, Inc., 78 S.W.3d 28, 55 (Tex. App.—
Fort Worth 2002, no pet.) (conspiracy to commit fraud elements).
                                                  9
       A producing cause requires that the act be both a cause-in-fact and a substantial

factor in causing the consumer’s injuries. Alexander v. Turtur & Assocs., 146 S.W.3d

113, 117 (Tex. 2004); Brown v. Bank of Galveston, 963 S.W.2d 511, 514 (Tex. 1998).

Thus, to prove the act was a producing cause of injury, a consumer must prove that the

defendant’s deceptive act or omission (1) was an actual cause-in-fact of the plaintiff’s

injury; (2) but for the defendant’s conduct, the plaintiff’s injury would not have occurred;

and (3) the act or omission was such a substantial factor in bringing about the plaintiff’s

injury that liability should be imposed on the defendant. Prudential Ins. v. Jefferson

Assocs., 896 S.W.2d 156, 161 (Tex. 1995); McClure v. Allied Stores of Tex., Inc., 608

S.W.2d 901, 903 (Tex. 1980). There can be more than one producing cause. See

Ledesma, 242 S.W.3d at 45. Further, the defendant’s deceptive act or practice must

have been committed in connection with the plaintiff’s transaction in purchasing goods or

services. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 650 (Tex. 1996). A plaintiff

can show the connection by showing that a representation made by the defendant

reached the plaintiff. See, e.g., Todd v. Perry Homes, 156 S.W.3d 919, 922 (Tex. App.—

Dallas 2005, no pet.). The fact that a consumer’s own acts may be a cause of the buyer’s

damages does not preclude finding that another’s act is also a producing cause. Danny

Darby Real Estate, Inc. v. Jacobs, 760 S.W.2d 711, 716 (Tex. App.—Dallas 1988, writ

denied).

       Furthermore, a plaintiff asserting a DTPA claim does not have to meet the higher

standard of proximate causation, which includes foreseeability as an element; rather,

“only [a] producing cause must be shown.” Prudential Ins., 896 S.W.2d at 161; see


                                            10
Bryant v. S.A.S., 416 S.W.3d 52, 65 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).

C.     Issue 1: Causation of Damages

       The thrust of ITC and the McMahans’ no-evidence summary judgment motions is

that “the cause of any damages to [the Peaces] is the subsequent governmental taking

and condemnation of part of their” property for the roadway expansion, and not any action

taken or omission made by ITC or the McMahans.

       In the Peaces’ response to the summary judgment motions, they asserted that they

were entitled to direct economic damages as a result of their “fraudulent

inducement/misrepresentation cases.” According to the Peaces, these direct economic

damages are measured in “out-of-pocket” and “benefit-of-the-bargain” terms.                   The

Peaces also asserted entitlement to consequential damages. Because ITC and the

McMahans do not quarrel with these damage measures, we assume, without deciding,

that they apply.

       Nevertheless, the Peaces’ responsive arguments and evidence do not squarely

align with the thrust of ITC and the McMahans’ no-evidence summary judgment ground.

As for the element of causation, the Peaces argue that:                   (1) “[n]othing in the

condemnation suit will remove the [June 26, 2013 affidavit and voided plat vacation] from

the public records”; (2) even if the condemnation suit ended immediately, 5 they would still

not know the correct legal description of their property; and (3) they would still be fighting

with the City to clean up “the legal mess” that ITC and the McMahans sold them. The

Peaces also argue that the condemnation argument was not ripe because the City did


       5 At the time the summary-judgment motions were considered, the Peaces’ inverse-condemnation
claim was still pending.
                                                11
not institute the condemnation action until a year after the Peaces filed suit. As for the

summary-judgment evidence regarding causation, the Peaces rely soley on deposition

and affidavit testimony in which they steadfastly asserted that they would not have

purchased the property had they known of Hovis’s oral promise. 6

        The Peaces responsive legal argument focuses on blemishes on their chain of title

while their attempt to create a fact dispute centers on their ultimate decision to purchase

the property.       But neither negates the effect of the City’s condemnation action.

Nonetheless, even assuming without deciding that the trial court erred in granting

summary judgment on no-evidence grounds, 7 we find no error in the granting of summary

judgment on ITC and the McMahans’ condemnation contention on traditional grounds.

        The final judgment in this case goes a long way toward disposing of the Peaces’

responsive arguments. One of the judgment’s paragraphs provides:

               11.     On April 4, 2016, the parties proceeded to trial on a single
        question regarding the amount of [the Peaces’] damages, if any, for the
        taking. On April 6, 2016, the question was submitted to the jury, which
        returned a verdict in favor of [the Peaces] in the amount of $297,000.00.
        Having been awarded compensation for the taking under the Texas
        constitution, [the Peaces’] federal takings claim under 42 U.S.C. § 1983 is
        moot. See, e.g., Town of Flower Mound v. Stafford Estates, 71 S.W.3d 18,
        48-49 (Tex. App.—Fort Worth 2002), aff’d 135 S.W.3d 620 (Tex. 2004).

The Peaces take no issue with this paragraph, which resolves half of the Peaces’ concern



        6We note that neither the Peaces’ original petition nor their live petition before the summary-
judgment motions were considered sought rescission.

        7In the Peaces’ reply brief, they complain that ITC and the McMahans’ condemnation argument
should be characterized as an inferential rebuttal, and ITC and the McMahans could not obtain a no-
evidence summary judgment on it. The Peaces also contend that ITC and the McMahans did not present
the condemnation argument to the trial court; our reading of the record, as noted above, reveals otherwise.
However, we assume, without deciding, that that ITC and the McMahans could not have obtained summary
judgment on the condemnation argument on no-evidence grounds.
                                                   12
regarding the clarity of the legal description of their property. The other half is resolved

when we look to the City’s condemnation action, which the Peaces reference by style and

cause number in their summary-judgment response. In that action, the City attached to

its petition a metes and bounds description of the land it sought to condemn. 8 Thus, on

this record, the Peaces’ concern about the correct legal description of their property—

their only legal contention that ITC and McMahans caused them damages—has been

answered.

        The Peaces’ ripeness argument is equally unpersuasive because their concern

regarding the clarity of title was ephemeral. While true that the City did not institute the

condemnation proceeding until after the Peaces filed suit, its legal authority to do so

existed throughout the relevant period. This point brings us back to the cause-in-fact

element that pierces through the definitions of proximate cause and producing cause.

See Rodriguez–Escobar, 392 S.W.3d at 113 (providing that for a negligent act or

omission to have been a cause-in-fact of the harm, the act or omission must have been

a substantial factor in bringing about the harm, and absent the act or omission—i.e., but

for the act or omission—the harm would not have occurred); see also Prudential Ins., 896

S.W.2d at 161 (providing that to prove the act was a producing cause of injury, a

consumer must prove that the defendant’s deceptive act or omission (1) was an actual

cause-in-fact of the plaintiff’s injury; (2) but for the defendant’s conduct, the plaintiff’s

injury would not have occurred; and (3) the act or omission was such a substantial factor

in bringing about the plaintiff’s injury that liability should be imposed on the defendant).


        8A copy of the City’s petition and the attached property description were filed by the City in support
of a summary judgment motion that is not at issue in this appeal.
                                                     13
       Even if Hovis’s oral promise enticed the City and ITC and the McMahans were

derelict in not relating Hovis’s oral promise to the Peaces, the City possessed eminent

domain power at all relevant times. That the City employed its eminent domain power

only confirms that its will to acquire the land for a roadway expansion persisted after Hovis

failed to fulfill her end of the bargain and was the but-for cause of the land taking that the

Peaces resisted. See Rodriguez–Escobar, 392 S.W.3d at 113; Prudential Ins., 896

S.W.2d at 161.

       So even assuming the trial court erred if it granted a no-evidence summary

judgment against the Peaces, we conclude that the trial court did not err in granting a

traditional summary judgment on the ground that ITC and the McMahans’ failure to

disclose Hovis’s oral promise did not cause the Peaces the damages that they sought

through the six claims asserted. Accordingly, the Peaces’ first issue is overruled.

D.     Issue 2: Breach of Fiduciary Duty

       In the Peaces second issue, they complain that the trial court erroneously denied

their motion for summary judgment on traditional grounds regarding their breach of

fiduciary duty claim. In their brief before us, the Peaces enumerate the elements of a

breach of fiduciary duty claim; and for the causation element, they refer us to their briefing

of causation regarding their first issue. In other words, the Peaces hinge the success of

their second issue, in part, on their first issue. Having overruled the Peaces’ first issue,

their second issue necessarily fails. Accordingly, we overrule the Peaces’ second issue.




                                             14
                                           III. CONCLUSION

        The judgment of the trial court is affirmed. 9


                                                                        LETICIA HINOJOSA
                                                                        Justice


Delivered and filed the
5th day of April, 2018.




        9 The McMahans’ motion to dismiss this appeal for lack of jurisdiction, which we carried with the
case, is denied.
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