                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-12-00307-CV

                                  Robert FLYNN and Wian Flynn,
                                           Appellants

                                                   v.

                 KELLER WILLIAMS INC. REALTORS and The Boehm Team,
                                    Appellees

                    From the 216th Judicial District Court, Kendall County, Texas
                                     Trial Court No. 10-334-A
                           Honorable N. Keith Williams, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: March 13, 2013

AFFIRMED

           This appeal arises from a take-nothing summary judgment rendered in favor of appellees,

Keller Williams, Inc. (“Keller Williams”) and The Boehm Team. We affirm.

                                          BACKGROUND

           Appellants, Robert and Wian Flynn, own two properties in Boerne, Texas: 101 Shady

Ridge and 309 River Ridge.          The Flynns entered into a Residential Real Estate Listing

Agreement to sell the house located at 101 Shady Ridge. The agreement identified the brokers

as Keller Williams and Amy Boehm-The Boehm Team. The Flynns also intended to sell the
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house located at 309 River Ridge at a future date. At some point in time, another Keller

Williams real estate agent, Emily Buttlar, told Boehm that Buttlar’s client, Jim Peterson, was

interested in buying the 309 River Ridge house.

       In late March 2008, the Flynns, their son-in-law Brian Tedder, Peterson, and Boehm all

met at the 309 River Ridge house. By the end of the meeting, the Flynns agreed to allow

Peterson and his wife to move into the house without an earnest money deposit. A closing date

was set for April 21, 2008. The closing never occurred, and eventually the Flynns evicted the

Petersons, who had been enjoying several rent-free months.

       The Flynns sued Keller Williams, The Boehm Team (naming Amy Boehm as the

principal), and Emily Buttlar, alleging common law fraud and statutory fraud pursuant to Texas

Business and Commerce Code section 27.01. The Flynns alleged they hired the defendants to be

their broker and to list their real property for sale, but instead, the defendants acted as agent for

the potential buyer and, in acting as agent for both parties, committed common law and statutory

fraud. According to the Flynns, they wanted to first sell the 101 Shady Ridge house, but based

on conversations with, and assurances made by Boehm and her agent Buttlar, the Flynns decided

to sell their house at 309 River Ridge to Peterson. The Flynns alleged both Boehm and Buttlar

made representations concerning Peterson’s creditworthiness. Finally, the Flynns alleged there

was a conspiracy between Buttlar, The Boehm Team, and Keller Williams under which The

Boehm Team and Keller Williams would represent the Flynns and split the fee while Buttlar

represented the buyer in the same transaction.

       In the course of discovery, the defendants served the Flynns with requests for admissions,

which the Flynns failed to timely answer. The Flynns later filed a motion to strike the deemed

admissions and extend the discovery deadline. About a month later, Keller Williams and The

Boehm Team (hereinafter, collectively, “appellees”) moved for a traditional summary judgment
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and a no-evidence summary judgment on the Flynns’ common law fraud and statutory fraud

causes of action. Appellees also filed a motion for sanctions against the Flynns. The Flynns

responded. On March 16, 2012, the trial court signed two orders: (1) striking the deemed

admissions and extending the discovery deadline to respond to the request for admissions to the

date the response was filed, and (2) granting appellees’ motion for summary judgment, without

stating its grounds, denying the motion for sanctions, and severing out the Flynns’ claims against

Buttlar. On appeal, the Flynns assert the trial court erred in rendering summary judgment in

favor of appellees.

                                  STANDARD OF REVIEW

       We review the grant of a summary judgment de novo. Provident Life & Acc. Ins. Co. v.

Knott, 128 S.W.3d 211, 215 (Tex. 2003). We first review the trial court’s summary judgment

under the no-evidence standard of Texas Rule of Civil Procedure 166a(i). Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). After an adequate time for discovery, a party

without the burden of proof may, without presenting evidence, seek summary judgment on the

ground that there is no evidence to support one or more essential elements of the non-movant’s

claim or defense. TEX. R. CIV. P. 166a(i). The trial court is required to grant the motion unless

the non-movant produces more than a scintilla of summary judgment evidence that raises a

genuine issue of material fact on each challenged element. Id. More than a scintilla of evidence

exists when the evidence “rises to a level that would enable reasonable and fair-minded people to

differ in their conclusions.” Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.

1997). If the non-movant fails to produce more than a scintilla of evidence under this burden,

then there is no need to analyze whether the movant’s proof satisfied the traditional summary

judgment standard of Rule 166a(c). Ridgway, 135 S.W.3d at 600.



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                            SUMMARY JUDGMENT EVIDENCE

       Appellees’ no-evidence motion for summary judgment alleged no evidence on each

element of the Flynns’ two causes of action. The elements of common law fraud are: (1) a

material representation was made; (2) the representation was false; (3) when the representation

was made, the speaker knew it was false or made it recklessly without any knowledge of the

truth and as a positive assertion; (4) the speaker made the representation with the intent that the

other party should act upon it; (5) the party acted in reliance on the representation; and (6) the

party thereby suffered injury. Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 727 (Tex. 2001).

The elements of statutory fraud in a real estate transaction are a: “(1) false representation of a

past or existing material fact, when the false representation is (A) made to a person for the

purpose of inducing that person to enter into a contract; and (B) relied on by that person in

entering into that contract; or (2) false promise to do an act, when the false promise is (A)

material; (B) made with the intention of not fulfilling it; (C) made to a person for the purpose of

inducing that person to enter into a contract; and (D) relied on by that person in entering into that

contract.” TEX. BUS. & COM. CODE ANN. § 27.01(a) (West 2009). Additionally, when a plaintiff

seeks to hold a real estate broker or agent liable for the misrepresentations of another, the

plaintiff must prove the broker or agent (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(e),(f) (West 2012).

       The Flynns’ response to appellees’ no-evidence motion for summary judgment consisted

only of Robert’s affidavit. In his affidavit, Robert attested that while the listing agreement for

the 101 Shady Ridge property was in effect, Keller Williams and The Boehm Team through its

realtor Buttlar, together with Boehm, brought forward a buyer for the 309 River Ridge property.

According to Robert, instead of effectuating a sale of the 101 Shady Ridge property, Keller
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Williams, Boehm, The Boehm Team, and Buttlar entered into negotiations while representing

the Flynns in the sale of the 309 River Ridge property. Robert then stated as follows:

               At the 309 River Ridge house, but prior to the meeting with [Full Throttle]
       Amy Boehm advised me that even though she had an agreement to represent us
       [on the sale of the 101 Shady Ridge property] she didn’t have an agreement to get
       paid on the sale of this property and wanted [an] agreement from me to pay her a
       commission from the sale of the 309 River Ridge property. I made this agreement
       to pay the commission on the sale of 309 River Ridge to Amy Boehm. At the
       time of the meeting the only connection of Amy Boehm to 309 River Ridge was
       as my representative and agent. Amy Boehm never disclosed her interests were
       adverse to us concerning the listing agreement we had entered into whereby the
       sale of 309 River Ridge was part and parcel to the sale of both pieces of property.

               Amy Boehm with whom we had a listing agreement on a companion
       property began to offer advice to me regarding the sale of the 309 River Ridge
       property. Amy Boehm also began to ask questions of Full Throttle Investments of
       Texas LLC’s representative regarding earnest money and moving in right away.
       At that time the representative of Full Throttle Investments of Texas LLC became
       angry with Amy Boehm and in the presence of others, myself included, raised his
       voice to Amy Boehm and advised her that she was about to lose the sale of the
       real estate.

              If in fact her duties were adverse to us in the sale of 309 River Ridge
       because she used her position as our agent and fiduciary and never advised us that
       she was a fiduciary on one piece of property but acting adverse to us in another
       property on behalf of the buyer, Full Throttle Investments of Texas, LLC.

              In fact her conduct was contrary to said allegation because she was
       questioning the buyer’s representative on behalf of and for us in the sale of 309
       River Ridge giving us the impression and conclusion that she was there as our
       agent and never made any attempts to correct that impression, allegation or
       convince me otherwise.

              My wife and my belief that Amy Boehm was acting in our interests as our
       agent was corroborated by the fact that Amy Boehm solicited and obtained a fee
       agreement on the sale of 309 River Ridge prior to the time the negotiations
       occurred and at the property.

               Therefore at the time of the negotiations and inspection to sell 309 River
       Ridge the Defendants Keller Williams Realty, [The] Boehm Team and Amy
       Boehm were acting as our agent while at the same time their realtor/agent Emily
       Buttlar was acting adverse to our interests.




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               Emily Buttlar advised me that she had been involved in other real estate
       deals with Full Throttle Investments of Texas, LLC and Jim Peterson prior to the
       contract at issue in this case for 309 River Ridge. At the time of the negotiations
       and prior to entering into a contract with Full Throttle Investments of Texas, LLC
       on the 309 River Ridge property Emily Buttlar of The Boehm Team advised me
       in the presence of all at the meeting that Jim Peterson was of good character and
       was financially stable and had sufficient funds in the bank to pay cash for the real
       estate within two weeks.

              After hearing Emily Buttlar of the Boehm Team advise us that there had
       been prior real estate deals with Jim Peterson and Peterson had sufficient funds to
       pay for the real estate [with] cash, Amy Boehm and I had a conversation in which
       she agreed that we should sell the property and agreed to do the contract for us.

              Based on current pleadings from the Defendants they claim that Peterson
       was a complete fraud and is solely responsible for our losses. However, Peterson
       was the client of The Boehm Team to whom The Boehm Team owed a fiduciary
       duty. It was Peterson’s character that was used to convince us to enter into the
       agreement in the first place and these representations came from Emily Buttlar of
       The Boehm Team. It was not until Amy Boehm of the Boehm Team acting as our
       agent agreed to write the contract that we agreed to the offers made by Jim
       Peterson of Full Throttle Investments of Texas, LLC that they were reduced to
       writing and made part of a contract on 309 River Ridge.

               After the agreement to sell, Amy Boehm told me that they really had no
       idea how much money Peterson and Full Throttle Investments of Texas, LLC had
       in the bank and had never checked his accounts.

              As a result of this escrow agreement and the contract entered into we were
       unable to remove the buyer from the residence at 309 River Ridge for a long
       period of time. Our damages were the loss of the sale and tied to the inability to
       remove the buyer from the home pursuant to the lease. Further, after Peterson was
       removed from the house, we spent money to clean and repair damages made to
       the house by him. As a result of the conduct of the Defendants we needed to sell
       the house again. We could not live in it and were making mortgage payments on it
       while not living in it and recovering no rent from the buyer. Time was of the
       essence to sell that house and because we did not sell it, we eventually sold the
       house for a loss months later.

       The only alleged false representations—about Peterson’s good character, financial

stability, and creditworthiness—were made by Buttlar, and the Flynns’ claims against her remain

pending in a severed action.     We conclude Robert’s affidavit contains no allegation that

appellees made any false representation to the Flynns or that appellees knew the falsity of


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Buttlar’s alleged misrepresentations or concealment at the time Buttlar made her alleged

statements. Therefore, Robert’s affidavit does not provide more than a scintilla of summary

judgment evidence to raise a genuine issue of material fact on each element of the Flynns’ claims

so as to defeat appellees’ entitlement to a no-evidence summary judgment. Because the Flynns

failed to produce more than a scintilla of evidence under the no-evidence standard, there is no

need to analyze whether appellee’s summary judgment proof satisfied the burden related to

traditional summary judgment motions. See Ridgway, 135 S.W.3d at 600.

                                        CONCLUSION

       For the reasons stated above, we affirm the trial court’s order rendering summary

judgment in favor of appellees.



                                                Sandee Bryan Marion, Justice




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