REVERSE and RENDER; and Opinion Filed April 9, 2019.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-17-01028-CV

                    EBBY HALLIDAY REAL ESTATE, INC., Appellant
                                     V.
                             KEVIN DUGAS, Appellee

                       On Appeal from the County Court at Law No. 3
                                   Dallas County, Texas
                           Trial Court Cause No. CC-15-04871-C

                              MEMORANDUM OPINION
                        Before Justices Brown, Schenck, and Pedersen, III
                                 Opinion by Justice Pedersen, III
       This appeal arises from the sale of a condominium unit. The buyer, Kevin Dugas, claims

the seller’s agent, Ebby Halliday Real Estate, Inc. (Ebby), misrepresented the property’s square

footage. Ebby appeals a jury verdict awarding Dugas damages. Among other issues, Ebby

challenges the legal sufficiency of the evidence to support the jury’s finding that Ebby made a

false representation. We conclude the evidence is legally insufficient to support the jury’s finding.

We therefore reverse and render.

                                         BACKGROUND

       The seller, Elizabeth McLarry, retained Ebby to put her condominium unit on the market.

Karen Estes, a salesperson employed by Ebby, listed the property on the Multiple Listing Service
(MLS).1 The MLS database contains a drop-down menu from which the listing agent can select

“appraisal,” “builder,” “tax,” or “other” as the source of the subject home’s square-footage

information. Estes selected “tax” for the unit in question, as do most agents when listing properties.

Based on this selection, the MLS database accessed the unit’s square footage from Dallas Central

Appraisal District (DCAD) records and uploaded this information into the MLS listing. The listing

noted the property’s square footage as “1,178 / Tax.” The listing also contained a narrative field

prepared by Estes in which she described the property as a “[d]arling 1,178 sq. ft.” unit. The

foregoing descriptions were consistent with DCAD’s records, which list both the “[l]iving [a]rea”

and the “[t]otal [a]rea” of the unit as 1,178 square feet. However, this is not the unit’s “livable”

square footage. This number includes the balcony and garage.

           Dugas’s agent, Lisa DeWaal, gave him a copy of the MLS listing. Dugas was a first time

home buyer, and he relied on the listing’s description of the property’s square footage in deciding

to make an offer to purchase the property. Dugas purchased the condominium in March 2015 for

$130,000. Although a buyer’s lender typically requires an appraisal of the property, in this case

Dugas borrowed the purchase money from his father. Thus, no appraisal was performed. After the

transaction closed, Dugas measured the unit and discovered that its “livable” square footage—i.e.,

the interior climate-controlled space excluding the balcony and garage—was only 885 square feet.

In other words, the unit was approximately twenty-five percent smaller than Dugas had understood

it to be.

           Dugas sued Ebby and Estes and asserted claims for (i) violations of the Deceptive Trade

Practices Act (DTPA), see TEX. BUS. & COM. CODE ANN. §§ 17.41–.63, (ii) statutory fraud, see

id. § 27.01, and (iii) negligent misrepresentation. Dugas also asserted a claim against Ebby for its



      1
        It is undisputed that “[a]t all times relevant to the claims in this lawsuit,” Estes “was acting on behalf of and as an agent of [Ebby] and in
the course and scope of her agency for [Ebby’s] benefit.”

                                                                        –2–
negligent supervision and training of Estes. The defendants generally denied Dugas’s claims, and

they also pleaded section 17.506 of the Business Commerce Code. Id. § 17.506(a)(1)–(2). This

section provides an affirmative defense to a DTPA claim if the defendant gave reasonably and

timely written notice to the plaintiff of the defendant’s reliance on written information from official

government records or other sources that, if false, the defendant did not know and could not

reasonably have known of such falsity. Id.

           Dugas’s DTPA and statutory fraud claims against Ebby were tried before a jury in April

2017.2 At the conclusion of the trial, the jury found that Ebby engaged in false, misleading, or

deceptive trade practices and committed statutory fraud. The jury awarded Dugas $32,335.48,

which is the amount that he claims he overpaid for the subject unit, plus additional sums for

attorney’s fees. However, in response to Question 2 of the charge, the jury found for Ebby

regarding its DTPA affirmative defense.

           Following the jury’s verdict, Dugas filed a motion for entry of judgment and to disregard

certain answers in the verdict. Ebby countered by filing a motion for judgment notwithstanding

the verdict. On June 26, 2017, the court held a hearing on both motions. A little over a month later,

on July 31, the court rendered judgment awarding Dugas $32,335.48, plus additional sums for

attorney’s fees. The judgment also awarded Dugas pre- and post-judgment interest and costs.

Moreover, the judgment stated the court had disregarded the jury’s answer to Question 2 because

no evidence supported this answer. Ebby then filed this appeal.




     2
       Dugas’s negligent misrepresentation and negligent supervision and training claims were not submitted to the jury, nor were any of his claims
against Estes. However, the court’s judgment, rendered on July 31, 2017, “finally dispose[d] of all parties and claims.”

                                                                      –3–
                                                               ANALYSIS

I.         Statutory Fraud

           Ebby raises eight issues, two of which relate to Dugas’s DTPA claim, four of which relate

to his statutory fraud claim, and two of which relate to other topics. It appears that the court’s

judgment awarded damages to Dugas based on his statutory fraud claim.3 Therefore, we will begin

by considering Ebby’s issues related to Dugas’s fraud claim. Question 5 of the court’s charge asked

whether Ebby “committed statutory fraud” against Dugas. According to the charge, statutory fraud

occurs when, among other elements, “there is a false representation of a past or existing material

fact.” See TEX. BUS. & COM. CODE ANN. § 27.01(a)(1) (providing statutory basis for the foregoing

definition). The jury answered “yes” to Question 5. It also found, in response to Question 6, that

Ebby was not actually aware that the subject representation was false. See id. § 27.01(c) (providing

for exemplary damages if a defendant makes a false representation with actual awareness of such

falsity). Ebby’s third issue challenges the legal sufficiency of the evidence to support the jury’s

finding that Ebby misrepresented the size of the condominium unit.

           To prevail on this issue, Ebby must demonstrate that no evidence supports the jury’s

finding. Graham Central Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014) (per curiam).

“We will sustain a legal sufficiency challenge if the evidence offered to prove a vital fact is no

more than a scintilla.” Id. (citation and internal quotation marks omitted). In conducting this

analysis, “we credit evidence that supports the verdict if reasonable jurors could have done so and

disregard contrary evidence unless reasonable jurors could not have done so.” Id. (citation and

internal quotation marks omitted). We must determine “‘whether the evidence at trial would enable



      3
        Specifically, the judgment did not reduce Dugas’s damages award despite the jury’s finding that Dugas was sixteen percent responsible for
his damages and DeWaal was forty percent responsible for Dugas’s damages. The fact that Dugas’s damages were not reduced suggests that his
statutory fraud claim was the basis for the judgment’s damages award. See LandAmerica Commonwealth Title Co. v. Wido, No. 05–14-00036-CV,
2015 WL 6545685, at *11 (Tex. App.—Dallas Oct. 29, 2015, no pet.) (mem. op.) (“[P]roportionate responsibility does not apply to statutory
fraud.”).

                                                                     –4–
reasonable and fair-minded people to reach the verdict under review.’” Id. (quoting City of Keller

v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)).

           As discussed previously, the MLS listing prepared by Estes referred to the subject unit as

“1,178 / Tax.” Ebby contends this notation meant 1,178 square feet according to DCAD. It argues

the MLS listing accurately reported the DCAD records’ description of the property’s size.4 Dugas

responds that a reasonable juror could have found that the term “/ Tax” either had no meaning or

meant the amount of square footage on which the unit would be taxed—in other words, the unit’s

“livable” square footage. In Dugas’s view, Ebby’s statement was false because in reality the unit

had only 885 “livable” square feet. As support, he points to Estes’s testimony that the reference to

1,178 square feet in Ebby’s listing (i) was intended to convey “livable” square feet and (ii) was

false if the actual square footage was less.

           A statutory fraud clam requires proof of a misrepresentation, not an omission. TEX. BUS.

& COM. CODE ANN. § 27.01(a); cf. Bradford v. Vento, 48 S.W.3d 749, 755 (Tex. 2001) (noting, as

a general rule, that “[s]ilence may be equivalent to a false representation only when the particular

circumstances impose a duty on the party to speak and he deliberately remains silent.”). We must

focus on the actual language of the purported misrepresentation, i.e., “1,178 / Tax,” as opposed to

what Ebby subjectively intended it to say. Cf. Great Am. Ins. Co. v. Primo, 512 S.W.3d 890, 893

(Tex. 2017) (“A contract’s plain language controls, not what one side or the other alleges they

intended to say but did not.” (citation and internal quotation marks omitted)). In interpreting the

term “/ Tax,” we may consider its commonly accepted meaning within the real estate industry. Cf.

RSUI Indem. Co. v. The Lynd Co., 466 S.W.3d 113, 121 n.1 (Tex. 2015) (stating same in context

of construing undefined contract terms). However, the commonly accepted meaning “may not



     4
       Ebby points to Dugas’s concession at trial that Ebby’s listing was not a misrepresentation if it were interpreted as simply reporting that
DCAD records showed the property to be 1,178 square feet. Dugas also testified that, at the time of the subject transaction, he did not understand
what “/ Tax” meant.

                                                                      –5–
apply when the language and its context demonstrate that the parties intended a different meaning.”

Id.

       A.      What Was the Representation?

       The evidence established that MLS listings can be accessed only by licensed real estate

agents who are members of the MetroTex Association of Realtors, though a prospective

homebuyer may obtain an individual listing from his or her agent or in an “open house.” Terri Cox,

a retained expert for Ebby, testified that the term “/ Tax” is understood within the real estate

industry to mean the source of the square footage information, which in this case was DCAD.

Likewise, both Estes and DeWaal understood “/ Tax” in the subject listing to mean that tax records

were the source of the listing’s description of the unit’s size. In addition, both Estes and Cox

testified that a home’s square footage is understood in the industry to mean its “livable” square

feet. Based on this evidence, we interpret “1,178 / Tax” as a representation by Ebby that DCAD

had reported the subject unit as 1,178 “livable” square feet.

       B.      Was There a Misrepresentation?

       We next consider whether there is legally sufficient evidence to support the jury’s finding

that Ebby’s “1,178 / Tax” representation was false.

               1.      Affirmative misrepresentation

       It is undisputed that the foregoing statement accurately reported what DCAD’s records

said. Thus, the statement was false only if a reasonable juror could interpret it as independently

verifying the subject unit’s “livable” square footage—i.e., that the unit was in fact 1,178 “livable”

square feet. As support for this position, Dugas notes that the narrative field in Ebby’s listing—

which referred to a “darling” 1,178 square foot unit—did not restate the “/ Tax” qualification that

was set forth earlier in the listing. He urges that a reasonable juror could view the narrative

description as an affirmation by Ebby that the unit in fact contained 1,178 “livable” square feet.

                                                –6–
Consistent with this argument, Dugas testified that he assumed Estes had verified the unit’s square

footage “if she was typing it herself.”

       We disagree with Dugas’s contention, because it is inconsistent with the principle that

documents should be read as a whole. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229

(Tex. 2003) (“No single provision taken alone will be given controlling effect; rather, all the

provisions must be considered with reference to the whole instrument.”). The listing’s subsequent

reference to a “darling” 1,178 square foot unit must be read in the context of its prior description

of the unit as “1,178 / Tax.” Nor are we persuaded by Dugas’s argument that Ebby’s listing

misrepresented the unit’s price per-square-foot because such price was based on a calculation that

erroneously included “non-livable” square feet. In light of the “/ Tax” representation discussed

above, Ebby’s listing must be interpreted as representing the unit’s price per square foot based on

the square footage reported by DCAD, i.e., 1,178 square feet.

       Dugas additionally argues that Ebby consistently claimed DCAD to be reliable even though

Ebby did not know whether DCAD’s records were accurate. He cites Boles v. Aldridge, in which

the plaintiff sought to rescind a land exchange based upon the defendant’s purported

misrepresentations that induced the exchange. 175 S.W. 1052, 1052 (Tex. 1915). The Texas

Supreme Court held that the defendant positively affirmed the truthfulness of material information

obtained from a third party who had been on the subject land, notwithstanding that the defendant

also stated he had never personally seen the land. Id. In that case, the defendant said he knew the

parties who had been upon the land, “they were perfectly reliable, and he would guaranty what

they had told him.” Id. According to the Court, “[t]he positive representation as a fact of that which

is untrue and concerning which a party has no knowledge is equivalent to an assertion that he

knows it to be true, and, where material, is equally actionable with a statement known to be false.”

Id. The Court reversed the court of appeals’ affirmation of an instructed verdict for the defendant

                                                 –7–
and remanded the case for trial on the question of whether the plaintiff relied on the defendant’s

representations. Id. at 1053.

           Unlike the representation in Boles, Ebby’s listing did not guarantee that DCAD’s records

were accurate. To the contrary, the listing represented that Ebby’s source of information was

“Deemed Reliable But Not Guaranteed.”5 (Emphasis added). As noted by the Boles court, “what

one states to another merely as his information touching the subject of a transaction will not support

an action for rescission, if such was in fact the information received, though in fact it was untrue.”

175 S.W. at1053 (emphasis added). Boles does not support Dugas’s contention that Ebby’s listing

vouched for the accuracy of DCAD’s records.

           Dugas also cites First Title Co. of Waco v. Garrett, in which the Supreme Court stated that

Texas law imposes a duty on a seller who makes an affirmative representation to know whether

that statement is true. 860 S.W.2d 74, 76 (Tex. 1993). As explained above, Ebby’s “1,178 / Tax”

representation relayed only that DCAD records had reported the subject unit as 1,178 “livable”

square feet. Garrett does not support the proposition that Ebby owed a duty to verify whether these

records were correct.

           For each of these reasons, we conclude the evidence is legally insufficient to support a jury

finding that Ebby made an affirmative misrepresentation.

           B.         Indirect misrepresentation

           Dugas also urges that Ebby’s conduct amounted to a misrepresentation. He relies on

Blanton v. Sherman Compress Co., in which this Court acknowledged that “‘a representation


      5
        The phrase “deemed reliable but not guaranteed” appeared in Ebby’s listing on the same line as the copyright, which referred to “NTREIS”
(also known as the North Texas Real Estate Information Systems, Inc.). Dugas cites section 16.07 of the MLS rules, which requires that the
“[p]ublication or display of MLS data must include a notice indicating that the data is deemed reliable, but is not guaranteed accurate by the MLS
or NTREIS.” (Emphasis added). Based on this provision, he appears to interpret the term “not guaranteed” in the subject listing as meaning only
that the MLS and NTREIS had not guaranteed the listing’s source information, as opposed to an interpretation that Ebby had not guaranteed this
information. We disagree with Dugas’s interpretation. Notwithstanding the MLS rules, the term “not guaranteed” in Ebby’s listing contains no
qualification as to who was “not guarantee[ing]” the source information. Absent such a qualification, we construe Ebby’s listing as meaning that it
was Ebby who deemed its source information to be “reliable but not guaranteed.”



                                                                      –8–
literally true is actionable if used to create an impression substantially false.’” 256 S.W.2d 884,

887 (Tex. App.—Dallas 1953, no writ) (quoting 37 C.J.S. Fraud, § 17). Stated another way,

actionable fraud includes not only a “direct lie,” but also “a deceptive answer, or any other indirect

but misleading language.” Id. (citation and internal quotation marks omitted).6

           The terms “used to create” and “deceptive” in Blanton suggest an intent to deceive. See id.

at 888 (“Recovery cannot be had for a true statement misunderstood without fault or design of the

speaker.” (citation and internal quotation marks omitted)). Relevant to this point, Dugas notes that

“[t]he presence . . . of a certain state of mind may be proved by circumstances” and that “[f]raud

is deducible from artifice and concealment as well as from affirmative conduct of a character to

deceive.” Campbell v. Booth, 526 S.W.2d 167, 169 (Tex. App.—Dallas 1975, writ ref’d n.r.e.)

(citing, inter alia, Blanton, 256 S.W.2d at 887). He also urges that Ebby’s intent can be inferred

from its refusal to change its business practices after becoming aware that DCAD had misstated

the subject unit’s “livable” square footage. See Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432,

434 (Tex. 1986) (“While a party’s intent is determined at the time the party made the

representation, it may be inferred from the party’s subsequent acts after the representation is

made.”).

           Our decision in Blanton dealt with an indirect misrepresentation in the context of common

law fraud.7 Assuming without deciding that a “false representation” under section 27.01(a)

includes indirect misrepresentations, we must review all of the circumstantial evidence, including

the competing inferences therefrom, to determine whether a reasonable juror could have found that


      6
        See also Tex. Emp’t Comm’n v. Oliver, 691 S.W.2d 819, 821 (Tex. App.—Houston [1st Dist.] 1985, no writ) (“‘Misrepresentation’ means
‘any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance
with the facts.’” (quoting Black’s Law Dictionary 903 (5th ed. 1981) (emphasis added))); State Nat’l Bank of El Paso v. Farah Mfg. Co., 678
S.W.2d 661, 681 (Tex. App.—El Paso 1984, writ dism’d by agr.) (“A representation that a maker knows to be capable of two interpretations, one
of which he knows to be false and the other true is fraudulent if it is made: (a) with the intention that it be understood in the sense in which it is
false, or (b) without any belief or expectation as to how it will be understood, or (c) with reckless indifference as to how it will be understood.”
(quoting RESTATEMENT (SECOND) OF TORTS § 527 (1977) (emphasis added))).
     7
       Section 27.01 was enacted in 1967, after Blanton was decided. Act of May 25, 1967, 60th Leg., R.S., ch. 785, § 1, sec. 27.01, 1968 Tex.
Gen. Laws 2343, 2603, amended by Act of May 19, 1983, 68th Leg., ch. 949, §§ 1, 2, 1983 Tex. Gen. Laws 5208, 5208–09.

                                                                        –9–
Ebby’s “1,178 / Tax” representation, through literally true, was used by Ebby to create an

impression that was substantially false. See City of Keller, 168 S.W.3d at 814 (“[W]hen the

circumstantial evidence of a vital fact is meager, a reviewing court must consider not just favorable

but all the circumstantial evidence, and competing inferences as well.”).

          Turning to the record before us, MLS rules require the listing agent to “verify and confirm

the accuracy of all information furnished to Other Participants and the public.” In addition, there

was evidence at trial that DCAD information is often unreliable. Nevertheless, Ebby’s agents rely

on DCAD as their source of square footage information,8 and they are not trained to search deed

records to verify the “livable” square footage of the properties they list. Nor do agents typically

hire an appraiser to measure a home. Moreover, while agents measure room dimensions when

listing homes, and in this case Estes measured the dimensions of several of the subject unit’s

rooms, Ebby trains its agents not to “ballpark” the total “livable” square footage of a home by

adding up the individual room measurements.9

          Based on this evidence, Dugas contends that a reasonable juror could infer that Ebby

actively trained its agents to rely solely on DCAD so that Ebby would not have to change its

listings by reducing the reported size of the properties that it advertised for sale. In Dugas’s view,

the jury reasonably could have inferred that Ebby “turn[ed] a blind eye” to the inaccuracy of

DCAD’s records so that Ebby could make a larger sales commission. Related to this point, Dugas

contends that the unit in question has a simple layout that can easily be measured. Dugas himself

measured the unit after purchasing it and discovered its “livable” square footage to be 885 square

feet.



     8
       Despite Ebby’s reliance on DCAD, Dugas notes that Estes did not know whether DCAD records were accurate. Moreover, Cox was not
one-hundred percent certain from where DCAD obtained its square footage information.
     9
       Bases on Ebby’s listing regarding the subject unit, it is possible to calculate the square footage of each room that Ebby measured by
multiplying the room’s length times its width. The sum total of the square footage of all of the rooms measured is 608 square feet.

                                                                  –10–
       Based on our review of each piece of the circumstantial evidence in light of all the known

circumstances, City of Keller, 168 S.W.3d at 813–14, we conclude that no reasonable juror could

infer that Ebby acted with the intent to deceive Dugas. Specifically, Ebby’s measurement of the

dimensions of certain rooms in the subject condominium does not establish that it knew DCAD’s

records were wrong regarding the condominium’s total “livable” square footage. Moreover, while

Ebby could have—and according to Dugas’s interpretation of the MLS rules, should have—

independently verified the accuracy of the DCAD records, there is no evidence that Ebby chose

not to do so out of a concern that it might discover the records to be wrong, as opposed to some

other innocent reason.

       In sum, the evidence at most gives rise to equal inferences of both fraudulent and non-

fraudulent conduct. See City of Keller, 168 S.W.3d at 813 (“When the circumstances are equally

consistent with either of two facts, neither fact may be inferred.” (citation and internal quotation

marks omitted)). Accordingly, a reasonable juror could not have inferred that Ebby made an

indirect misrepresentation. Our conclusion in this respect is consistent with the jury’s

determination, in response to Question 6, that Ebby did not have actual awareness that the subject

representation was false.

       For each of the foregoing reasons, the evidence is legally insufficient to support the jury’s

finding in response to Question 5 that Ebby misrepresented a past or existing material fact. We

sustain Ebby’s third issue.

II.    Deceptive Trade Practices Act

       Ebby’s first issue challenges the legal sufficiency of the evidence to support the jury’s

finding that Ebby violated the DTPA. Pertinent to this issue, Question 1 of the charge asked

whether Ebby “engaged in any false, misleading, or deceptive act or practice.” The charge defined

“[f]alse, misleading, or deceptive act or practice” as “any of the following”:

                                               –11–
          1.        representing that goods[10] had or would have characteristics that they did
                    not have;

          2.        representing that goods have quantities which they do not have;

          3.        advertising goods with the intent not to sell them as advertised; or

          4.        failing to disclose information concerning goods which was known at the
                    time of the transactions when such failure to disclose such information was
                    intended to induce the consumer into a transaction into which the consumer
                    would not have entered had the information been disclosed.

See TEX. BUS. & COM. CODE ANN. § 17.46(b)(5), (9), (24) (providing statutory basis for the

foregoing definitions). The jury answered “yes” to Question 1. It also found in response to

Question 4 that Ebby committed a “[k]nowing[ ]” DTPA violation—in other words, with “actual

awareness, at the time of the conduct[,] of the falsity, deception[,] or unfairness of the conduct in

question.” However, in response to Question 2, the jury found for Ebby with respect to its DTPA

affirmative defense. Specifically, the jury found, among other elements with respect to this

defense, that Ebby did not know and could not reasonably have known that the records or sources

on which it relied were false. See TEX. BUS. & COM. CODE ANN. § 17.506(b)(1)–(2). As described

previously, the court’s judgment disregarded the jury’s answer to this question.

          Items 1 through 3 of Question 1 articulate certain types of affirmative misrepresentations

that are actionable under the DTPA. “A seller and [its] agent are liable under the DTPA for

affirmative misrepresentations, notwithstanding the agent’s lack of knowledge or notice of falsity.”

Camden Mach. & Tool, Inc. v. Cascade Co., 870 S.W.2d 304, 311–12 (Tex. App.—Fort Worth

1993, no writ). As discussed above, no legally sufficient evidence supports a jury finding that Ebby

made an affirmative misrepresentation to Dugas.




     10
        The charge defined “goods” as including “real property purchased or leased for use.” See TEX. BUS. & COM. CODE ANN. § 17.45(1)
(providing statutory basis for such definition).

                                                               –12–
           In addition, item 4 of Question 1 notes that a failure to disclose is actionable under the

statute if the seller at the time knew of the subject information that should have been disclosed.

See TEX. BUS. & COM. CODE ANN. § 17.46(b)(24). The statute requires actual knowledge of the

non-disclosed information. Pfeiffer v. Ebby Halliday Real Estate, Inc., 747 S.W.2d 887, 889–90

(Tex. App.—Dallas 1988, no writ).11 As described herein, the evidence suggests that Ebby

reasonably could have determined the subject unit measured less than 1,178 “livable” square feet.

However, there is no evidence that Ebby actually knew this information when the transaction

closed. Moreover, as noted above, the jury found in response to Question 2 that Ebby did not know

and could not reasonably have known that the records or sources on which it relied were false.

Absent actual knowledge by Ebby, the evidence is legally insufficient to support a finding in

response to item 4 that Ebby knowingly failed to disclose that the unit was only 885 “livable”

square feet. We sustain Ebby’s first issue.

                                                             CONCLUSION

           Based upon our review of the evidence, we conclude that no reasonable or fair minded

juror could have found that Ebby made a misrepresentation or that it was aware at the time that

DCAD’s records were incorrect. Accordingly, the evidence is legally insufficient to support the

jury’s verdict. Given this holding, we need not consider Ebby’s remaining issues. We reverse the

court’s judgment and render judgment that Dugas take nothing.




                                                                           /Bill Pedersen, III/
171028F.P05                                                                BILL PEDERSEN, III
                                                                           JUSTICE



     11
        The version of the statute at issue in Pfeifer was contained in section 17.46(b)(23). See Deceptive Trade Practices Act, 66th Leg., R.S., ch.
603, § 3, 1979 Tex. Gen. Laws 1327, 1329, amended by Act of May 23, 2001, 77th Leg., R.S., ch. 962, § 1, 2001 Tex. Gen. Laws 1929, 1931.
Effective September 1, 2001, section (b)(23) was moved to section 17.46(b)(24). The language of the renumbered provision is substantially the
same as the former provision.

                                                                      –13–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 EBBY HALLIDAY REAL ESTATE, INC.,                      On Appeal from the County Court at Law
 Appellant                                             No. 3, Dallas County, Texas
                                                       Trial Court Cause No. CC-15-04871-C.
 No. 05-17-01028-CV         V.                         Opinion delivered by Justice Pedersen, III.
                                                       Justices Brown and Schenck participating.
 KEVIN DUGAS, Appellee

    In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and judgment is RENDERED that appellee KEVIN DUGAS take nothing.

        It is ORDERED that appellant EBBY HALLIDAY REAL ESTATE, INC. recover its
costs of this appeal from appellee KEVIN DUGAS.


Judgment entered this 9th day of April, 2019.




                                                –14–
