

NO. 07-09-0269-CV
 
IN THE
COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL B
 

JANUARY
26, 2011
 

 
WELDON E. BOEHL, JR. AND SHARON M. BOEHL,
 
                                                                                                 Appellants 
v.
 
ROGER BOLEY, ELLEN E. DAWSON, RICHARD SMITH COMPANY D/B/A COLDWELL BANKER
UNITED, REALTORS,
  
                                                                                                Appellees
___________________________
 
FROM THE 200TH DISTRICT COURT OF TRAVIS
COUNTY;
 
NO. D-1-GN-06-004062; HONORABLE GUS
J. STRAUSS JR., PRESIDING
 

 
Memorandum
Opinion
 

 
Before QUINN, C.J., and CAMPBELL  and HANCOCK,  JJ.
            A take-nothing
summary judgment was entered in Weldon and Sharon Boehl’s (the Boehls) lawsuit
against Roger Boley (Boley), Richard Smith Company d/b/a Coldwell Banker United,
Realtors (Coldwell Banker), and Ellen E. Dawson (Dawson), (the Coldwell Banker listing
agent).  The Boehls sought damages arising
from purported misrepresentations and omissions with respect to a home they
bought from Boley.  In addition to
receiving a favorable judgment, Boley, Coldwell Banker and Dawson also were awarded
attorney’s fees.  The Boehls contend, on
appeal, the trial court erred in 1) holding that the home was sold “as is” per
the sales contract and that such fact negated their ability to prove causation,
and 2) awarding attorney’s fees to Coldwell Banker and Dawson since they were
not parties to the sales contract.  We affirm
the judgment. 
            Background
            On April 28, 2006, Boley and the
Boehls entered into a sales contract for a property located at 17106 Majestic
Ridge in Austin, Texas.  It consisted of a
form Texas Real Estate Commission (TREC) agreement and provided that the buyer
accepted the property “in its present condition.”[1]  Though the document obligated the Boehls to
buy the land, they nevertheless acquired an option to terminate the contract within
twelve days of its execution, if they so chose. 
Later, the parties extended the option period to eighteen days, or May
15, 2006.  On the latter date, the
parties again amended the agreement to include a provision requiring Boley to perform
certain repairs to the property.  The
closing date was also extended to July 12, 2006. 
            Prior to
entering the contract, Boley represented to the Boehls that “[e]verything in
this home works the way it should work,” the water well on the property had 280
feet of water in it, and he had not had any problems with the well.[2]  The Boehls had no separate well inspection
performed prior to closing although a general home inspector informed them that
it was working.  
            Shortly
before the closing was scheduled, there arose a problem with the well.  This resulted in the replacement of a
pressure switch on July 6.  Thereafter,
the well continued to produce water.  About
a week later, the sale closed.  Within a
month, though, the Boehls began experiencing a shortage of water from the
well.  An investigation into the
circumstances reveals that the well was going dry and necessitated extensive
repairs.    
The Boehls sued for fraud, DTPA violations,
fraudulent inducement, negligent and fraudulent misrepresentations, and breach
of contract.  In response, the defendants
sought partial summary judgment because the Boehls bought the property “as is” thereby
negating any proof of causation.  Boley
also asserted that he could not be held liable pursuant to §1101.805 of the
Texas Occupation Code.[3]
 The trial court granted summary judgment
and, after a bench trial, the court entered judgment favoring the defendants
and awarding them attorney’s fees per a provision of the contract.  
Standard of Review
The standard for review for a summary judgment
is found in Nixon v. Mr. Property
Management Company, 690 S.W.2d 546, 548-49 (Tex. 1985).  When the summary judgment
does not specify the grounds upon which it was granted, it may be affirmed on
any ground in the motion that is meritorious. 
Harwell v. State Farm Mut. Auto
Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995). 

 
“As Is” Contract
By purchasing a property “as is,” the buyer
accepts the risk that the property is worth less than the price paid.  Prudential
Insurance Company of America v. Jefferson Associates, Ltd., 896 S.W.2d 156,
161 (Tex. 1995).  He is thus precluded
from proving that the seller’s conduct caused him harm.  Id. There
are, however, exceptions to this rule.  If
the totality of the circumstances surrounding the transaction suggest that the “as
is” clause is merely a boilerplate provision between parties of unequal
bargaining power, the clause may not be given effect.  Id. at
162.  Further, if the buyer is induced to
enter the agreement because of a fraudulent representation or concealment of
information by the seller, the seller may not hide behind the “as is” provision.  Id.;
Weitzel v. Barnes, 691 S.W.2d 598,
601 (Tex. 1985).   
Next, a TREC contract using the language “in
its current condition” has been construed to be an “as is” agreement.  Sims v.
Century 21 Capital Team, Inc., No. 03-05-00461-CV, 2006 Tex. App. Lexis 7990, at *5-6 (Tex. App.–Austin
September 7, 2006, no pet.); see also
Cherry v. McCall, 138 S.W.3d 35, 39 (Tex. App.–San Antonio 2004, pet.
denied); Fletcher v. Edwards, 26
S.W.3d 66, 75 (Tex. App.–Waco 2000, pet. denied).  And, because this case was transferred from
the Austin Court of Appeals, we must abide by its precedent, though it does not
necessarily control the outcome of cases originating within the geographic borders
of the Court of Appeals for the Seventh District of Texas.
We further note that the record illustrates
that both parties were represented by real estate agents, the Boehls paid extra
for an option to withdraw from the transaction, the Boehls negotiated an
extension of that option period, and they further negotiated the repair of
certain items by Boley.  Therefore, the
circumstances surrounding execution of the sales contract do not depict a
situation reminiscent of an adhesion contract or like relationship wherein one
party has little to no bargaining power; this is of import for such a situation
may nullify the “as is” nature of the contract at issue, according to the court
in Sims.  See Sims
v. Century 21 Capital Team, Inc., 2006 Tex. App. Lexis 7990, at *8-9.    
 And,
to the extent that the effect of an “as is” contract may also be nullified
through the seller’s use of fraud, we find no evidence of record illustrating
that Boley knew the actual condition of the well when he made representations
about it being functional or having a certain level or amount of water.  Nor does the record contain evidence from
which reasonable minds could infer that he garnered such knowledge after making
those representations and before the closing date.  He did cause a well switch to be repaired,
but no evidence developing that circumstance exists from which one could
reasonably infer that he garnered information rendering his prior
representations inaccurate.  Nor does the
statement of a technician tendered by the Boehls to the effect that Boley must
have known of the well’s defects fill the void. 
That is nothing more than ipse
dixit, or a conclusion without factual support.  As such, it constitutes no evidence.  City of
San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009) (explaining ipse dixit and that it is not competent
evidence).
  To
the extent that the Boehls rely upon Pairett
v. Gutierrez, 969 S.W.2d 512 (Tex. App.–Austin 1998, pet. denied) to
support their argument that a material question of fact existed, we find the
opinion inapposite.  Unlike the situation
here, evidence appeared in the Pairett
record suggesting that the crack in the foundation was sufficiently open and
obvious for a long enough time that someone living in the house would have known
of it.  Id. at 515.  We have no such
evidence at bar.     
Nor do we find relevant the argument that
Boley’s affidavit was not competent summary judgment evidence since it was from
an interested party.  This is so because
the exception to the “as is” nature of the contract likens to a defense or
affirmative defense.  So, to the extent
that the non-movants attempted to invoke it as a bar to summary judgment, the
burden was theirs to present competent evidence creating a material issue of
fact viz each element of the defense.
 Forrest
v. Vital Earth Resources, 120 S.W.3d 480, 487 (Tex. App.–Texarkana 2003,
pet. denied) (describing the burden of proof on a non-movant attempting to
invoke a defense to defeat summary judgment). 
Boley need not have presented any evidence; so, whether the statements
in his affidavit about lacking knowledge of the well’s actual condition are
competent summary judgment evidence does not matter.  
Finally, the Boehls contend that because
Boley chose to make representations about the property instead of remaining
silent, he removed himself from the protection of the “as is” nature of the
contract.  As already noted, there is no
evidence that those statements were not true at the time they were made or that
Boley knew that they were inaccurate.  See Prudential Insurance Company of America
v. Jefferson Associates, Ltd., 896 S.W.2d at 163 (stating that there was no
evidence that the property manager knew or had any reason to suspect that her
statement that there were no defects in the building other than the foundation
in the mechanical room was inaccurate). Accordingly, we find the summary
judgment was proper and overrule the Boehls’ issue.
 
Attorney’s Fees
The Boehls also complain of the award of
attorney’s fees to Coldwell Banker and Dawson because they were not parties to
the sales agreement.  That agreement
provided:  “The prevailing party in any
legal proceeding related to this contract is entitled to recover reasonable
attorney’s fees and all costs of such proceeding incurred by the prevailing
party.”  The Austin Court of Appeals has
held that such language permits real estate brokers to recover attorney’s fees
as long as they are a prevailing party in a legal proceeding related to the
contract.  See Sierra Associate Group, Inc. v. Hardeman, No. 03-08-00324-CV,
2009 Tex. App. Lexis 1181, at
*26-28 (Tex. App.–Austin February 20, 2009, no pet.) (mem. op.).  We are bound to follow that decision as well.  Tex.
R. App. P. 41.3.  
In their reply brief, the Boehls argue that
its claims against Coldwell Banker and Dawson are not breach of contract claims
and are therefore not “related to this contract.”  However, the defense of both parties and the
basis for summary judgment in their favor was that the sales agreement was an
“as is” contract.  We, therefore, find
the lawsuit to be related to the sales agreement.    
Having overruled each issue, we affirm the
summary judgment.
 
                                                                        Per
Curiam   
            




 




[1]The
provision stated:  “Buyer accepts the
Property in its present condition; provided Seller, at Seller’s expense, shall
complete the following specific repairs and treatments: ______.”  The blank was not completed in the original
contract, but the parties later negotiated an amendment under which Boley was
to make a number of repairs.  


[2]Weldon
Boehl admitted he was never told that the well wouldn’t go dry.  


[3]That
statute provides: “A party is not liable for a misrepresentation or a
concealment of a material fact made by a license holder in a real estate
transaction unless the party:  (1) knew
of the falsity of the misrepresentation or concealment; and (2) failed to
disclose the party’s knowledge of the falsity of the misrepresentation or
concealment.”  Tex. Occ. Code Ann. §1101.805(d) (Vernon 2004).  


