David Smith v. Kirchen Appraisal Company ( 2021 )


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  •              In the
    Court of Appeals
    Second Appellate District of Texas
    at Fort Worth
    ___________________________
    No. 02-20-00318-CV
    ___________________________
    DAVID SMITH, Appellant
    V.
    KIRCHEN APPRAISAL COMPANY, Appellee
    On Appeal from the 393rd District Court
    Denton County, Texas
    Trial Court No. 18-1 0707-393
    Before Kerr, Womack, and Walker, JJ.
    Memorandum Opinion by Justice Walker
    MEMORANDUM OPINION
    Appellant David Smith appeals from the trial court’s summary judgment
    dismissing his claims for negligent misrepresentation and for violating the Deceptive
    Trade Practices Act (the DTPA) against appellee Kirchen Appraisal Company, arising
    out of Kirchen Appraisal’s alleged misappraisal of the square footage of a home that
    Smith bought, renovated, and later sold. Because Smith has failed to attack all
    standalone bases upon which the summary judgment could have been granted, we
    affirm.
    I. BACKGROUND
    Smith bought a house for $205,000 with the intention to repair it and sell it at a
    profit. To finance the flip, Smith got a loan from Wildcat Lending Fund One, LP.
    Wildcat hired appellee Kirchen Appraisal to appraise the property for its after-repair
    market value. John Kirchen, the appraiser, estimated that the house was 1,897 square
    feet and that the after-repaired value would be $274,500.        Smith renovated the
    property and sold it for $275,000, which was his listed price. During the appraisal for
    the sale, the square footage of the house was calculated to be 1,610 and its value was
    estimated to be $270,000.
    Smith sued Kirchen Appraisal for negligent misrepresentation and for violating
    the DTPA. Kirchen Appraisal moved for a no-evidence and traditional summary
    judgment, arguing that Smith had no evidence of damages; he was not an intended
    user of Kirchen’s appraisal and, thus, could not maintain a negligent-
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    misrepresentation claim; he was not a consumer under the DTPA; and Kirchen
    Appraisal provided a professional service, which is exempt from DTPA liability. The
    trial court granted Kirchen Appraisal’s motion without specifying the grounds upon
    which the ruling was based.
    II. REVIEW OF SUMMARY JUDGMENT
    In his original brief, Smith raised two appellate issues: (1) the summary
    judgment was in error because a real-estate appraiser is not a professional for
    purposes of the DTPA and (2) the summary judgment was in error because
    determining square footage is not a professional service under the DTPA because it
    does not require specialized knowledge or training. See 
    Tex. Bus. & Com. Code Ann. § 17.49
    (c). His supporting arguments were similarly limited to whether the DTPA’s
    liability exemption for professional services applied to Kirchen’s appraisal.
    Kirchen Appraisal argued in its brief that because Smith failed to raise a broad
    issue challenging the trial court’s summary judgment in general and failed to
    substantively attack all possible grounds upon which the summary judgment could
    have been based, the summary judgment must be affirmed on these unchallenged
    grounds. As a result, Smith sought leave to file an amended appellate brief, which we
    granted.
    In his amended brief, Smith raised three issues: (1) the trial court erred by
    granting summary judgment in favor of Kirchen Appraisal; (2) the trial court erred
    because a real-estate appraiser is not a professional under the DTPA; and (3) the trial
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    court erred because determining square footage does not require specialized
    knowledge or training and, thus, is not an exempt professional service under the
    DTPA. But, again, Smith limited his substantive arguments to his DTPA claim and
    whether Kirchen performed a professional service when he determined the house’s
    square footage. In fact, the argument portion of his first issue—his attack on the
    summary judgment in general—merely restates the rule allowing such a general issue.
    First, Smith wholly fails to argue that the summary judgment as to his
    negligent-misrepresentation claim was in error.        His substantive argument solely
    addresses his DTPA claim. Accordingly, we must affirm the trial court’s dismissal of
    this claim because it is unchallenged. See Little v. Delta Steel, Inc., 
    409 S.W.3d 704
    , 722–
    23 (Tex. App.—Fort Worth 2013, no pet.); Stewart v. Sanmina Tex. L.P., 
    156 S.W.3d 198
    , 206 (Tex. App.—Dallas 2005, no pet.).
    Second, Smith does not challenge each ground upon which the summary
    judgment of his DTPA claim could have been based. When challenging a summary
    judgment, an appellant may simply raise a single broad appellate point: “The trial
    court erred in granting the motion for summary judgment.” Malooly Bros., Inc. v.
    Napier, 
    461 S.W.2d 119
    , 121 (Tex. 1970) (capitalization omitted).            However, an
    appellant raising a Malooly issue must go a step further and substantively attack each
    basis upon which the summary judgment could have been granted. See Rollins v.
    Denton Cnty., No. 02-14-00312-CV, 
    2015 WL 7817357
    , at *2 (Tex. App.—Fort Worth
    Dec. 3, 2015, no pet.) (mem. op.); Ketter v. ESC Med. Sys., Inc., 
    169 S.W.3d 791
    , 797
    4
    (Tex. App.—Dallas 2005, no pet.); Nabors Corporate Servs. v. Northfield Ins. Co.,
    
    132 S.W.3d 90
    , 95 (Tex. App.—Houston [14th Dist.] 2004, no pet.); see also Judge
    Adele Hedges & Lynne Liberato, Texas Practice Guide: Civil Appeals § 11:39 (2020)
    (“Using the general issue does not obviate the need to challenge every ground
    presented in the motion for summary judgment.”).
    Here, Smith raised a Malooly issue; however, he substantively attacked only one
    of the grounds that the DTPA summary judgment could have been based on—
    Kirchen Appraisal was exempt from DTPA liability because it had provided a
    professional service. Smith directs none of his substantive arguments to Kirchen
    Appraisal’s summary-judgment grounds that Smith had no evidence of damages and
    was not a consumer under the DTPA as a matter of law. Either of these standalone,
    unchallenged grounds could have supported the trial court’s DTPA summary
    judgment; thus, the summary judgment must be upheld based on these unchallenged
    grounds regardless of their merits.    See Malooly, 461 S.W.2d at 121; Emmert v.
    Wilmington Sav. Fund Soc’y, No. 02-20-00012-CV, 
    2021 WL 733301
    , at *3 (Tex. App.—
    Fort Worth Feb. 25, 2021, pet. filed) (mem. op.); Rollins, 
    2015 WL 7817357
    , at *2;
    Ketter, 
    169 S.W.3d at 797
    .
    III. CONCLUSION
    Smith’s failure to substantively challenge each standalone summary-judgment
    ground Kirchen Appraisal raised in the trial court directed to Smith’s DTPA claim
    waives any argument against the propriety of the trial court’s DTPA summary
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    judgment. Further, Smith fails to raise any substantive argument directed to the
    negligent-misrepresentation summary judgment.         For these reasons, we overrule
    Smith’s appellate issues and affirm the trial court’s final judgment. See Tex. R. App. P.
    43.2(a).
    /s/ Brian Walker
    Brian Walker
    Justice
    Delivered: May 20, 2021
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