                           NUMBER 13-12-00105-CV

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

SHERRY DUNLAP,                                                          Appellant,


                                         v.

CINDY GAYLE,                                                            Appellee.


                  On appeal from the 135th District Court
                        of Goliad County, Texas.


                       MEMORANDUM OPINION
               Before Justices Rodriguez, Garza and Perkes
                 Memorandum Opinion by Justice Garza

      This is an appeal of a no-evidence/traditional summary judgment granted in favor

of appellee, Cindy Gayle. By two issues, appellant, Sherry Dunlap, contends the trial
court erred in: (1) granting summary judgment, and (2) awarding damages to Gayle

pursuant to a contractual liquidated damages provision. We affirm.

                                        I. BACKGROUND

       In November 2007, Dunlap and Gayle signed an earnest money contract for

Dunlap to purchase a house and acreage in Goliad County owned by Gayle, a real

estate agent.1 Pursuant to the contract, Gayle provided Dunlap with a survey of the

property. The contract provided that any party wrongfully refusing to sign a release

acceptable to the escrow agent of the $10,000 in earnest money was liable “to the other

party for liquidated damages of three times the amount of the earnest money.” Dunlap

failed to close by the date specified in the contract and refused to release the earnest

money to Gayle. Dunlap sued Gayle, asserting fraud and breach of contract. Gayle

counterclaimed, asserting that she was entitled to contractual liquidated damages of

three times the amount of the earnest money.

       Gayle filed a no-evidence motion for summary judgment and later filed a

combined no-evidence/traditional motion for summary judgment on Dunlap’s claims and

her own counterclaim. With regard to Dunlap’s fraud allegation, Gayle asserted that

Dunlap had no evidence:          (1) that Gayle made a material false representation to

Dunlap; or (2) that Dunlap suffered damages. As to Dunlap’s breach of contract claim,

Gayle asserted that Dunlap had no evidence that:               (1) Dunlap performed or was

excused from performing under the contract; (2) Gayle breached the contract; or (3)




       1
        The parties signed two earlier contracts regarding the same property, one in September 2007
and another in October 2007. Dunlap did not close on either of the two earlier contracts or on the
November 2007 contract at issue in this case.


                                                2
Gayle’s breach caused Dunlap damages.2

       Dunlap filed responses to Gayle’s motions.3 Dunlap attached an affidavit, dated

May 23, 2011, to her first response and attached a second affidavit, dated November

22, 2011, to her supplemental response.              Gayle objected to Dunlap’s summary

judgment evidence, arguing that both affidavits were incompetent summary judgment

evidence.

       On November 30, 2011, the trial court granted Gayle’s no-evidence/traditional

motion without stating the basis for its ruling. The trial court also awarded Gayle actual

damages in the amount of $30,000 and attorney’s fees. This appeal followed.

                       II. STANDARD OF REVIEW AND APPLICABLE LAW

       A no-evidence motion for summary judgment under Texas Rule of Civil

Procedure 166a(i) is essentially a motion for pretrial directed verdict. Timpte Indus., Inc.

v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).               A no-evidence motion for summary

judgment is appropriate when there is no evidence of one or more essential elements of

a claim on which the adverse party will bear the burden of proof at trial. TEX. R. CIV. P.

166a(i); Scripps Tex. Newspapers, L.P. v. Belalcazar, 99 S.W.3d 829, 840 (Tex. App.—

Corpus Christi 2003, pet. denied). The motion must be specific in challenging the

evidentiary support for an element of a claim or defense. Gish, 286 S.W.3d at 310.

“When reviewing a no-evidence summary judgment, we ‘review the evidence presented

by the motion and response in the light most favorable to the party against whom the

summary judgment was rendered, crediting evidence favorable to that party if

       2
          We note that Gayle’s first no-evidence motion for summary judgment asserted that Dunlap
lacked evidence of these elements, as well as other elements.
       3
        Dunlap filed a response to Gayle’s first no-evidence motion and later filed a “Supplemental
Response.”

                                                3
reasonable jurors could, and disregarding contrary evidence unless reasonable jurors

could not.’” Id. (quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)).

         When, as here, the trial court’s order granting summary judgment does not state

the grounds for its ruling, we must affirm the judgment if any of the grounds alleged in

the motion are meritorious. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).

When a party moves for summary judgment under both rules 166a(c) and 166a(i) of the

Texas Rules of Civil Procedure, as here, we will first review the trial court's judgment

under the standards of rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600

(Tex. 2004). If the non-movant fails to produce more than a scintilla of evidence under

that burden, then there is no need to analyze whether the non-movant's summary

judgment proof satisfies the less stringent rule 166a(c) burden. Id.

                                             III. DISCUSSION

    A.       Fraud

         In her motion, Gayle challenged the “material false representation” and damage

elements of Dunlap’s fraud claim. Dunlap attached to her first response: (1) her May

23, 2011 affidavit; (2) a survey plat of the property, which showed a “trash dump”

located on the property; (3) a “Seller’s Disclosure Notice,” a standardized form which

requires a seller to disclose certain prescribed property “conditions,” and which reflected

that there was no “landfill” on the property4; (4) a legal description of the property; (5) a

letter from Dunlap’s counsel stating her refusal to release the earnest money; (6) the

contract for sale of the property; and (7) a letter to Dunlap from the escrow agent stating

that she would forfeit the earnest money if she failed to complete the purchase of the


         4
         A seller of residential real property is required to provide the buyer with a “Seller’s Disclosure of
Property Condition.” See TEX. PROP. CODE ANN. § 5.008 (West Supp. 2011).

                                                      4
property by the closing date. In her response, Dunlap asserted that Gayle: (1) falsely

represented the property as “pristine”; and (2) stated in the written disclosures that there

was no “landfill” on the property, when the plat “show[ed] a landfill.” Dunlap’s response

states that Gayle breached the contract by not disclosing the existence of the “landfill.”

       In her supplemental response, Dunlap stated that she “did not want a trash dump

or a landfill” and that “these two words mean essentially the same thing to her.” Dunlap

also asserted that she did not receive the survey, which revealed the existence of the

trash dump, “until the third [November 2007] contract.”               Dunlap attached to her

supplemental response: (1) an excerpt from Gayle’s no-evidence/traditional motion for

summary judgment, in which Gayle asserted her counterclaim for contractual liquidated

damages; and (2) Dunlap’s November 22, 2011 affidavit, in which she stated that “[t]he

words ‘trash dump’ and ‘land fill’ mean the same thing” to her, and that she “did not

know about the land fill or trash dump until the third contract.”5

       Dunlap asserts that the evidence of a material false representation about the

property consists of: (1) Gayle’s written representation that there was no landfill on the

property; and (2) Gayle’s statement that the property was “pristine.” Gayle responds

that: (1) her representation that there was not a landfill on the property was not false;

and (2) assuming that she described the property as “pristine,” the use of such a term

was mere “puffing,” not a misrepresentation of material fact.

       To establish fraud or misrepresentation, a plaintiff must show, among other

things, that the defendant made a false statement concerning a past or existing material

fact. Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 674 (Tex. 1998). This element

       5
         We note that only the first and last page of the November 22, 2011 affidavit appear in the
record. The intervening pages, if any, are missing.


                                                5
requires proof that when Gayle made the representation, she “knew it was false or

made it recklessly without any knowledge of the truth and as a positive assertion.” Id.

A false representation may consist of a deceptive answer or any other indirect or

misleading language, and a statement that is literally true may be actionable if used to

create an impression that is substantially false. See Nelson v. Najm, 127 S.W.3d 170,

175 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).

      “Landfill” is defined as “a system of trash and garbage disposal in which the

waste is buried between layers of earth to build up low-lying land—called also sanitary

landfill.” MERRIAM W EBSTER’S COLLEGIATE DICTIONARY 654 (10th ed. 1996). “Dump” is

defined as “an accumulation of refuse and discarded materials” or “a place where such

materials are dumped.” Id. at 359.      Dunlap correctly notes that “dump” is the first

synonym listed for “landfill.”    Id. at 654.     She argues that, although Gayle’s

representation that there was “no landfill” on the property could technically be true, it

would nonetheless be fraudulent if it was used to create a substantially false

impression. Dunlap has offered no evidence, however, that when Gayle checked “no

landfill” on the standardized seller’s disclosure form, she intended to create an

impression that was substantially false. Gayle’s affidavit unequivocally stated that the

areas labeled “trash dump” on the survey “is not a landfill.” Her affidavit further stated

that, although she has burned trash in barrels in the area labeled “trash dump,” “there

has never been any trash simply dumped there and left.”           We conclude that the

presence of a “trash dump” on the property did not render Gayle’s “no landfill”

representation false.




                                            6
       Dunlap also points to Gayle’s description of the property as “pristine” as evidence

of a material false representation. In her affidavit, attached to her response, Dunlap

asserted that Gayle represented that the property was “pristine.” Gayle argues that,

even assuming that she described the property as “pristine,” such a description is mere

“puffing” or opinion, and cannot constitute fraud.

       Generally, there are three factors courts consider when determining whether a

statement is actionable, or mere puffing or opinion. Humble Nat'l Bank v. DCV, Inc.,

933 S.W.2d 224, 230 (Tex. App.—Houston [14th Dist.] 1996, writ denied). We consider

(1) the specificity of the alleged misrepresentation, (2) the comparative knowledge

between the buyer and seller, and (3) whether the representation concerns past or

present conditions, or future conditions. Id.; see also Helm v. Kingston, No. 13-10-

00224-CV, 2011 WL 6746064, at *6 (Tex. App.—Corpus Christi Dec. 21, 2011, pet.

denied) (mem. op.). An imprecise or vague representation constitutes a mere opinion.

Humble Nat’l Bank, 933 S.W.2d at 230.

       “Pristine” is defined in this context as “not spoiled, corrupted, or polluted (as by

civilization), pure.”   MERRIAM W EBSTER’S COLLEGIATE DICTIONARY at 927.           Dunlap

asserted in her affidavit:

              When I inspected the property, Cindy Gayle and I walked the
       border fence most of the way around the property[;] however[,] when we
       got to the corner where I now know there is a land fill, she distracted me
       and took me back to the house. She clearly was concealing the fact that
       the property has a landfill. I have not seen the landfill location with my
       own eyes.

              ....

               I absolutely relied on her representation that the property was
       “pristine” and had no landfill when I offered to buy the property.



                                             7
        The property consisted of approximately twenty-six acres and was improved with

a house.6     First, we examine the specificity of the alleged misrepresentation.                  See

Humble Nat’l Bank, 933 S.W.2d at 230. We conclude that as used in the present

context—to describe property—the term “pristine” is vague and indefinite in meaning

and therefore cannot constitute an actionable misrepresentation. See Autohaus, Inc. v.

Aguilar, 794 S.W.2d 459, 464 (Tex. App.—Dallas 1990, writ denied (holding that

representation that Mercedes was the best engineered car in the world was not

actionable); see also Bill & Jo Deane Bradford Invs., Inc. v. Cutter Aviation San Antonio,

Inc., No. 04-04-00791-CV, 2005 Tex. App. LEXIS 9789, at *6 (Tex. App.—San Antonio

Nov. 23, 2005, no pet.) (mem. op.) (holding statement that an aircraft engine was “good,

safe and reliable” was mere opinion or puffing).

        Second, we compare the subject-matter knowledge of the buyer and seller,

asking “whether or not [a statement’s] correctness is a matter of which either of the

parties can judge as well as the other,” and upon which the buyer can reasonably be

expected, in the exercise of ordinary diligence, to have formed his own opinion. See

Aguilar, 794 S.W.2d at 463. Here, Gayle as the owner of the property was more familiar

with it, and Dunlap claims that when she inspected the property, Gayle “distracted” her

and deliberately prevented her from inspecting the area where the “trash dump” was

located. Nonetheless, we find that whether the property was “pristine” could be judged




        6
          Although no house appears on the survey, Dunlap refers to the house in her affidavit, and
Gayle’s affidavit states that “the property has a house, sewage and everything else required of a modern
home.”


                                                   8
equally by either party and was a matter upon which Dunlap could have formed her own

opinion through ordinary diligence.7 See id. at 464.

        Third, the alleged statement concerned a present condition, not a future

condition, and therefore requires greater scrutiny. See id. We hold that the alleged

statement that the property was “pristine” is an expression of opinion, not a

representation of fact.

        We hold that Dunlap failed to present evidence of the “material false

representation” element of her fraud claim, and the trial court did not err in granting no-

evidence summary judgment as to her fraud claim. See TEX. R. CIV. P 166a(i).

B.      Breach of Contract

        Gayle’s no-evidence motion asserted that Dunlap had no evidence that:                         (1)

Dunlap performed or was excused from performing under the contract; (2) Gayle

breached the contract; or (3) Gayle’s breach caused Dunlap damages. In her affidavit,

Dunlap stated that Gayle breached the contract by failing to “disclose the landfill” on the

Seller’s Disclosure of Property Condition. Dunlap’s evidence included: (1) the Seller’s

Disclosure, which reflected that the property did not contain a landfill, and (2) the survey

showing the existence of a “trash dump.”

        To establish that Gayle breached the contract by failing to “disclose the landfill,”

Dunlap must present evidence that a landfill actually exists.                      We have already

determined that the presence of a “trash dump” did not render Gayle’s “no landfill”

representation to be false. Dunlap’s affidavit simply asserts that there is a landfill on the


        7
           We note that the parties dispute when Dunlap first received the survey reflecting the existence
of a “trash dump.” Gayle’s affidavit states that Dunlap had the survey before she entered into the second
and third (present) earnest money contracts. Dunlap asserts that she did not receive the survey “until the
third contract.”

                                                    9
property, even though she concedes that she “has not seen the landfill location with

[her] own eyes.” Gayle’s affidavit unequivocally states that there is no landfill on the

property and that the area labeled “trash dump” on the survey is not a landfill. We hold

that Dunlap has not presented evidence establishing that Gayle breached the contract

by failing to disclose a landfill. See id. We further hold that the trial court did not err in

granting summary judgment on Dunlap’s breach of contract claim, and we overrule

Dunlap’s first issue.

   C.    Damages

        By her second issue, Dunlap contends the trial court erred in awarding Gayle

$30,000 in actual damages because the contract provision authorizing such damages is

an unenforceable penalty. Paragraph 18(D) of the contract provides: “Any party who

wrongfully fails or refuses to sign a release acceptable to the escrow agent within 7

days of receipt of the request will be liable to the other party for liquidated damages of

three times the amount of the earnest money.” The earnest money payable by Dunlap

to Gayle under the contract was $10,000.

        Gayle responds that Dunlap’s claim that a liquidated damages clause is an

unenforceable penalty is an affirmative defense, which Dunlap was required to plead

and prove. Citing Phillips v. Phillips, Dunlap responds that pleading the defense is

unnecessary when the unenforceability of the liquidated damages provision appears on

the face of the pleadings. See 820 S.W.2d 785, 789 (Tex. 1991) (holding that the

defense of penalty is not waived by the failure to plead it if it is apparent on the face of

the petition and established as a matter of law).

              An assertion that a liquidated damages provision constitutes an
        unenforceable penalty is an affirmative defense, and the party asserting

                                             10
         penalty bears the burden of proof. Generally, that party must prove the
         amount of actual damages, if any, to demonstrate that “the actual loss was
         not an approximation of the stipulated sum.” If the amount stipulated in
         the liquidated damages clause is “shown to be disproportionate to actual
         damages,” we should declare that the clause is a penalty and limit
         recovery to actual damages.

SP Terrace, L.P. v. Meritage Homes of Tex., LLC, 334 S.W.3d 275, 287 (Tex. App.—

Houston [1st Dist.] 2010, no pet.) (internal citations omitted).

         It is undisputed that Dunlap did not plead or raise her penalty defense to the trial

court.    Dunlap argues that under Phillips, she did not waive her penalty argument

because the liquidated damages provision in the contract—providing for liquidated

damages of three times the amount of the earnest money—was unenforceable on its

face. We disagree.

         In Phillips, the Texas Supreme Court found that a provision which provided for

liquidated damages ten times the amount of actual damages to be an unenforceable

penalty. 820 S.W.2d at 789. The court found the provision did not meet the two-prong

test for determining whether to enforce a liquidated damages provision. See id. at 788–

89 (citing Rio Grande Valley Sugar Growers, Inc. v. Campesi, 592 s.W.2d 340, 342 n.2

(Tex. 1979)). To enforce such a provision, the court must find: (1) that the harm

caused by the breach is incapable or difficult of estimation, and (2) that the amount of

liquidated damages called for is a reasonable forecast of just compensation. See id. at

788. The provision at issue in Phillips did not meet the first prong of the test because it

assumed that actual damages must be determined before the “ten times” multiplier can

be applied. See id. at 789. The provision did not meet the second prong of the test

because it did not forecast actual damages, but called for them to be determined and

then multiplied. See id.

                                              11
       The liquidated damages provision in the present case does not call for

multiplying the amount of actual damages, as in Phillips. See id. Rather, it calls for

trebling the agreed-upon amount of earnest money.8 For these reasons, we find Phillips

to be inapposite.      Dunlap neither pleaded the affirmative defense of penalty nor

presented evidence showing that the damage award was excessive. We overrule her

second issue.

                                        IV. CONCLUSION

       We affirm the trial court’s judgment.




                                                     DORI CONTRERAS GARZA,
                                                     Justice

Delivered and filed the
11th day of April, 2013.




       8
          We note that the sales price in the contract was $460,000. Thus, the $10,000 earnest money
was slightly more than 2% of the sales price.

                                                12
