Colton MacPherson v. Leila Shahin Aglony ( 2022 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00004-CV
__________________
COLTON MACPHERSON, Appellant
V.
LEILA SHAHIN AGLONY, Appellee
__________________________________________________________________
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 19-11-15649-CV
__________________________________________________________________
MEMORANDUM OPINION
Appellant Colton MacPherson bought a house from Appellee Leila Shahin
Aglony, pursuant to a purchase agreement that contained an “As Is” clause. After
MacPherson moved into the home, he discovered problems and he filed claims
against Aglony.1 The trial court found for Aglony and entered a take-nothing
1
Prior to the bench trial, the trial court entered a summary judgment in favor
of the other named defendants, Caroline Pena (Aglony’s real estate agent), and
Suzanne Anderson Properties, LLC, (the real estate company Pena was affiliated
with at the time in question). The trial court granted Pena and Suzanne Anderson
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judgment in favor of Aglony. In four issues on appeal, MacPherson challenges the
sufficiency of the evidence supporting the judgment rendered by the trial court. We
affirm.
Background
In March 2017, MacPherson purchased a home in Conroe, Texas (the
Property) from Aglony for the purchase price of $140,000. MacPherson, as the
buyer, and Aglony, as the seller, had their own real estate agents in the transaction.
MacPherson and Aglony and their relators used the Texas Real Estate Commission
(TREC) One to Four Family Residential Contract (Resale)” form for the purchase
of the Property. According to MacPherson, after he purchased the Property and
moved in, he discovered defects that he did not expect based on the information
Aglony had provided to him when he purchased the Property.
In November 2019, MacPherson filed Plaintiff’s Original Petition, asserting
claims against Aglony for alleged violations of the Texas Deceptive Trade and
Practices Act (“DTPA”), fraud, fraudulent inducement, fraud in a real estate
transaction, negligence, breach of contract, and conspiracy. According to
MacPherson, before the sale Aglony conspired to make cosmetic changes to the
Property to “hide its true state[]” and fraudulently induced MacPherson to purchase
Properties, LLC’s motion to sever, and assigned the severed case a new trial cause
number. Pena and Suzanne Anderson Properties, LLC are not parties to this appeal
in limited context.
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the Property without disclosing the Property’s “true state[.]” MacPherson alleged
that Aglony made “cosmetic upgrades to the Property in order to hide the fact that it
had serious foundation and structural issues.” MacPherson further alleged that
Aglony improperly filled out the Seller’s Disclosure and “failed to disclose the
repairs that Aglony performed on the Property, including but not limited to repairs
she performed on the floors, walls, and foundation.” MacPherson sought damages
for the costs of repair and replacement, including but not limited to, the costs to
repair the foundation, roof, interior floor, interior walls, exterior walls, doors, siding,
paint, and plumbing. MacPherson also sought damages for mental anguish,
additional damages under the DTPA, exemplary damages, and attorney’s fees.
A bench trial was held, and the trial court found against MacPherson on all
claims and signed a final judgment ordering MacPherson take nothing on his causes
of action against Aglony and awarding Aglony court costs. The trial court also
signed findings of fact and conclusions of law. MacPherson appealed.
Evidence at Trial
Testimony of Colton MacPherson
Colton MacPherson testified he saw the listing for the Property on a real estate
website. The listing of the home was admitted into evidence. MacPherson testified
that the listing for the home stated the following:
Walls recently painted with neutral colors, new carpet, new tile floors,
updated light fixtures, new FCI outlets, new blinds throughout the
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house, new double panel windows, new ceiling fans, totally renovated
kitchen with granite countertops, totally renovated bathrooms with new
toilets, tubs, external pipes and floors. Brand new stove,
microwave, . . . garbage disposal.
According to MacPherson, these are the repairs that he believed the seller had made
to the Property, and he had no reason to believe that the seller had made any other
repairs.
MacPherson testified he drove to the Property and looked at the outside and
looked inside through the windows to see if he would be interested in purchasing the
Property. He hired a realtor who helped him make an offer of $140,000 to purchase
the Property. The offer was accepted, and the parties signed a contract on July 4,
2017, and closed on the Property on August 3, 2017. The purchase contract was
admitted into evidence. MacPherson testified that he never had any communications
with the seller, Aglony. According to MacPherson, he was not told that the Property
had been purchased at a foreclosure by the seller and he said if he had known that
fact, he would not have purchased the Property because he had “learned from
watching TV, you don’t buy a foreclosed home. . . . It is usually a crap house.”
MacPherson testified that “around the time of his offer” he was able to walk
through the Property, except for the far back room, which was not accessible due to
construction equipment and supplies. He testified that he could tell the paint had
been touched up, and he did not notice anything wrong with the Property, such as
cracks in the walls, ceilings, or windows. MacPherson testified he had the home
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inspected by Ray Basinger, and Basinger’s inspection report was admitted into
evidence. According to MacPherson, the inspection report did not indicate that the
Property had major defects of any kind. MacPherson testified that after he and
Basinger talked over the report, MacPherson “felt like it was the perfect house for
[him] and [his] family to move into.”
MacPherson testified that he received the Seller’s Disclosure Notice (“the
Seller’s Disclosure”) during the contract period, and the Seller’s Disclosure was
admitted into evidence. MacPherson agreed that in the Seller’s Disclosure, Aglony
stated that she was an investor and had never occupied the property and was not
aware of any previous condition. MacPherson testified that in the Seller’s
Disclosure, the seller stated that she was not aware of any items listed in Section 1
that were not in working condition or had defects or needed repair. Aglony did
indicate on the Seller’s Disclosure that she was aware of defects in the driveway.
MacPherson testified that, based on Aglony’s disclosure, he did not believe she had
made repairs to the foundation or any structural modifications. MacPherson testified
he believed Aglony’s representations on the disclosure. MacPherson testified that he
relied on the Seller’s Disclosure. According to MacPherson, when he purchased the
home he had no reason to believe that the seller had made any structural repairs to
the Property, or that the seller had repaired the Property’s interior or exterior walls
or foundation, or that the seller had replaced doors in the Property.
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According to MacPherson, within five to seven weeks after he moved into the
Property, his father noticed a hairline crack on one of the walls of the Property.
MacPherson testified that since his purchase of the home, and despite Aglony’s
disclosure that she was not aware of any defects in the doors, MacPherson had
discovered that the doors were replaced or moved and doors had gaping holes behind
them and had fallen off the hinges. Photographs of the Property prior to Aglony’s
remodel were admitted into evidence. MacPherson testified that after he purchased
the home, he noticed repairs the seller made to the ceiling, such as “patch-up work”
by the fireplace and tape and putty covering holes that were painted over. He
believed the pictures in the listing of the Property showed the living room and dining
room and showed some of the replaced windows and he testified that he had no
reason to believe that any changes were made to the exterior or interior walls. At
trial, when shown photographs from the same area prior to Aglony’s remodel,
MacPherson testified that it appeared structural changes had been made such as
cutting the exterior wall, adding a new window, and that two interior walls
apparently had been removed. According to MacPherson, at the time of trial, the
ceiling was falling in at the location where the interior wall had been removed prior
to MacPherson purchasing the Property.
MacPherson was also shown pictures of cracks in the concrete from prior to
Aglony’s remodel, and he testified that he was not aware of those cracks when he
6
purchased the Property and did not have any way of knowing about the cracks
because he did not remove the installed carpet. MacPherson testified that fireplace
cracks depicted in the photographs shown to him at trial from before Aglony’s
remodel existed at the time of trial in the same place, but the cracks were not visible
at the time he purchased the Property. According to MacPherson, after he purchased
the Property the cracks started as a hairline crack and grew wider. MacPherson
testified that he was also not aware of cracks in the floor of the master bedroom as
depicted in photographs he was shown at trial. MacPherson testified that if he had
known that the seller had made the repairs to the walls and the floor, or if the seller
had disclosed the repairs, he would not have purchased the Property. He testified he
did not hire a foundation expert before he purchased the Property because he did not
know he needed to.
MacPherson testified that about two weeks after he purchased the Property
Hurricane Harvey hit, and weeks after the hurricane hit, he had his insurance
company inspect whether the hurricane had caused any damage to the Property.
According to MacPherson, there was no flooding in the neighborhood, nothing had
fallen on the house, and his insurance company did not discover any damages to the
Property related to the hurricane. The insurance inspector alerted MacPherson to a
foundation issue, but the inspector told MacPherson that he needed to call a
foundation company because it was a preexisting issue not caused by the hurricane
7
and not covered by insurance. MacPherson had Allied Foundation come look at the
Property.
According to MacPherson, he had attempted to repair the Property and he
removed a moldy wall in the guest bathroom that he believed was caused by the use
of non-treated wood. MacPherson testified that despite the seller telling him that she
had replaced the plumbing and plumbing fixtures, within a week of living in the
house the main line was clogged by a root causing the water to not drain and the
toilet to not flush, so he had to dig up the line and replumb it himself. He also had a
friend replace the fixture inside the wall of the guest bathroom because the hot water
would not turn off. MacPherson testified that the plumbing fixtures were not new,
and the O-rings were worn out.
Pictures of the Property taken in June 2018 were admitted into evidence.
According to MacPherson, the photographs showed a crack in a wall, and he stated
the crack had opened up where he could almost put his finger in it and there appeared
to be a caulk-like substance that had been used to fill in the crack. MacPherson
testified that the crack looked the same or worse than the picture of the crack made
prior to Aglony’s remodel. He testified he was unable to use his fireplace because
using it with cracks on the side of it is a safety issue. MacPherson testified that within
a week or two of him moving into the house, a shelf in the master bathroom that had
been improperly installed fell, as depicted by one of the photographs. According to
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MacPherson, another photograph showed how the corners of the master bathroom
shower “opened up[]” over the last two and a half years, that the shower was
“literally falling apart[,]” and he had used silicone to fill in the gaps. MacPherson
testified that the tile walls had also cracked around the tub and toilet. MacPherson
testified that it appeared that Aglony placed tape over a giant hole in the ceiling of
one of the rooms, there is a gap where the sheetrock does not line up with the ceiling,
and that the room “has a giant lean in it.” MacPherson testified that he was not able
to go in that room during his walk-through because it was full of equipment.
MacPherson described some of the brickwork repairs as “shoddy[.]” According to
MacPherson, the front door frame had separated and there were cracks up and down
the wall. MacPherson testified that siding on the house had cracked where the seller
had painted to “cover up things.” MacPherson also testified there were cracks around
a window and that a crack depicted in one of the photographs appeared to have had
mortar of a different color applied to it previously. MacPherson testified that the
photographs showed that cracks on the outside of the house appear now to have been
caulked previously with a different mortar. A picture of the middle bedroom
depicted what MacPherson described as a window he had to replace that was
plexiglass instead of real glass and it showed that cracks had developed alongside
the window. MacPherson testified that one of the photographs showed cracks on the
corners of the door frames in the hallway to the middle bedroom and bathroom.
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MacPherson testified that the door frames were cracked in the master bedroom, there
was a crack in a corner on the ceiling, the window frame in the master bathroom was
cracking, and the shower was “cracking down the walls[]” where the tile had been
redone. MacPherson also testified that the ceiling sags in some rooms, and there are
cracks in the garage sheetrock. He testified that photographs where he pulled the
living room carpet back showed that the floor had been “covered in mortar to level
out[]” the floor and that it was done during Aglony’s remodel, and that the third
bedroom in the back also had mortar on the floor when he pulled the carpet back.
According to MacPherson, he would not have purchased the house had he
known the floors were cracked or had he known about the repairs to the living room
or to the interior walls prior to his purchase. He testified that he believed Aglony
was untruthful in her Seller’s Disclosure and that she was aware of previous
structural repairs and foundation repairs done during her remodel of the Property.
He agreed that in Aglony’s responses to Request for Admission which were admitted
into evidence, she admitted that in 2017 she or her agents repaired the floors of the
living room and the bedroom, repaired interior walls, replaced five windows, and
that shotcrete was poured on the floors of the Property. Aglony’s Responses to
Interrogatories were also admitted and MacPherson agreed that in response to
“[p]lease explain why you didn’t feel the need to disclose any repairs[,]” she
responded that “[t]he repairs that were made to the property were cosmetical and
10
evident to the naked eye. I didn’t make any repairs to the property that were not
visible at first sight.”
MacPherson agreed that he checked the box on the purchase contract that
stated that he was buying the Property “As Is,” but he claimed that he did not know
what that meant, and he did not consider that clause and only considered the Seller’s
Disclosure in deciding to purchase the Property. On cross-examination, MacPherson
acknowledged that the purchase contract defined “As Is” to mean “the present
condition of the property with any and all defects and without warranty except for
the warranties of title and the warranties in the contract[,]” and he agreed that he was
not precluded from inspecting the Property and negotiating repairs. He testified that
after the inspection he negotiated small repairs with Aglony and she performed the
repairs.
MacPherson testified he sent a notice to Aglony on December 18, 2017, under
the DTPA and informed Aglony that she had marked “no” under whether she was
aware of any defects or malfunctions in the ceilings, door, exterior walls, floors,
foundation, slab, interior walls, roof, walls, fences and windows and that she did not
fill out Section 3 of the Seller’s Disclosure. The demand letter was admitted into
evidence, and in it he made a demand of approximately $60,000 for repairs,
including $11,000 for the foundation, $15,000 for exterior brick walls, and $8,200
for the roof.
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The Contract
The contract for MacPherson’s purchase of the Property from Aglony was
admitted into evidence. The contract is titled “One to Four Family Residential
Contract (Resale)” and indicates it is a form promulgated by TREC. At the time of
its execution, under Paragraph 7B entitled “Seller’s Disclosure Notice Pursuant to
§5.008 Texas Property Code (Notice)[,]” an “X” was marked for section (2), which
provided the following:
Buyer has not received the Notice. Within 10 days after the effective
date of this contract, Seller shall deliver the Notice to Buyer. If Buyer
does not receive the Notice, Buyer may terminate this contract at any
time prior to the closing and the earnest money will be refunded to
Buyer. If Seller delivers the Notice, Buyer may terminate this contract
for any reason within 7 days after Buyer receives the Notice or prior to
the closing, whichever first occurs, and the earnest money will be
refunded to Buyer.
An “X” was also marked for Paragraph 7D(1) indicating that MacPherson was
accepting the Property “As Is” and Paragraph 7D expressly provided as follows, in
relevant part:
D. ACCEPTANCE OF PROPERTY CONDITION: “As Is” means the
present condition of the Property with any and all defects and without
warranty except for the warranties of title and the warranties in this
contract. Buyer’s agreement to accept the Property As Is under
Paragraph 7D(1) . . . does not preclude Buyer from inspecting the
Property under Paragraph 7A, from negotiating repairs or treatments in
a subsequent amendment, or from terminating this contract during the
Option Period, if any.
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The Seller’s Disclosure
The Seller’s Disclosure was also admitted into evidence. It appears to be a
form published by the Texas Association of Realtors, and it was provided to
MacPherson for the Property. The Seller’s Disclosure included the following
language on the top of the first page in all capital letters:
THIS NOTICE IS A DISCLOSURE OF SELLER’S KNOWLEDGE
OF THE CONDITION OF THE PROPERTY AS OF THE DATE
SIGNED BY SELLER AND IS NOT A SUBSTITUTE FOR ANY
INSPECTIONS OR WARRANTIES THE BUYER MAY WISH TO
OBTAIN. IT IS NOT A WARRANTY OF ANY KIND BY SELLER,
SELLER’S AGENTS, OR ANY OTHER AGENT.
On the Seller’s Disclosure, Aglony stated that at the time of the disclosure she was
“not occupying” the Property and she stated she had “never occupied the
Property[.]” When asked on the form if she was aware that any of the items listed in
Section 1 were not in working condition, were defective, or were in need of repair,
Aglony responded “Seller is an investor and has never occupied this property and is
not [] aware of any previous condition.” Under Section 2, which asked Aglony
whether she was aware of any defects or malfunctions in the basement, ceilings,
doors, driveways, electrical systems, exterior walls, floors, foundation/slab(s),
interior walls, lighting fixtures, plumbing systems, roof, sidewalks, walls/fences, and
windows, she put an “X” indicating “no” for every item except for driveways, where
she put an “X” indicating “yes.” Under Section 3, where Seller is asked if she was
aware of any of the listed conditions (which included previous foundation repairs,
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other structural repairs, and settlement among many other items), Aglony responded
“Seller is an investor and is not aware of any previous condition[.]” Aglony signed
the acknowledgment on the form that “the statements in this notice are true to the
best of Seller’s belief and that no person, including the broker(s), has instructed or
influenced Seller to provide inaccurate information or to omit any material
information.” MacPherson signed the Seller’s Disclosure acknowledgement stating
that he received the Seller’s Disclosure on July 14, 2017.
Testimony of Marcie McClimans
Marcie McClimans testified that she was MacPherson’s real estate agent when
he purchased the Property, and that he purchased the property for $140,000.
McClimans testified that outside of what was listed on the MLS listing, she had no
reason to believe that the seller had made any other repairs or changes to the
Property, and there was nothing in the Seller’s Disclosure that would have notified
her or MacPherson that the seller had made other repairs other than those included
in the disclosure. McClimans testified that in her training and experience, the
purpose of the Seller’s Disclosure is to disclose any type of repairs or anything that
is wrong with a property, and that a seller is obligated to disclose those items.
According to McClimans, in Texas a buyer of real property does not have an
obligation to do their own investigation into what repairs the seller did “[b]ecause
we go off the Seller’s Disclosure and the inspector.” McClimans agreed that in this
14
case at the top of the Seller’s Disclosure was a notice that said that the Disclosure is
not a substitute for any inspections or warranty. McClimans testified that the seller’s
statement on the disclosure that the seller was an investor and was not aware of any
previous condition led McClimans to believe that the seller did not make any
structural repairs. When McClimans viewed comparison photos from Exhibit 28
(photographs prior to Aglony’s remodel) and Exhibit 29 (photographs from the
listing of the Property at the time of MacPherson’s purchase), McClimans testified
that it appeared that Aglony had redone the windows and added an additional
window by the door prior to selling the home to MacPherson.
McClimans testified that in the five years she had been a realtor, she had been
involved in twenty closings and that this was the only one where the seller did not
disclose repairs. According to McClimans, she spoke to the seller’s agent, and
McClimans was unaware that Aglony had purchased the Property through a
foreclosure. McClimans testified that she discussed the inspection report with
MacPherson, and she did not think there was anything in the inspection report that
would have led her to believe Aglony had not disclosed repairs nor was there
anything from the inspection that showed her MacPherson should not purchase the
Property. McClimans testified that she believed that she walked through the Property
“probably two” times with MacPherson and she did not notice anything wrong with
the Property. McClimans testified that if she had known that the Property had cracks
15
in the concrete, she would have advised MacPherson to get different inspectors or
an engineer to look at the Property because cracks in the floor can indicate
foundation problems.
McClimans testified that the purchase was an “As Is” purchase and when that
is the case, “you’re going off the seller’s -- or at that time purchasing the property
until you have your inspections done, typically.” She further testified that “you go
off of what they’ve disclosed about the property[]” and “at that point you’re
purchasing it [‘]as is[’] until you have inspections, if you choose to have an
inspection done.” McClimans testified that the inspector does not always uncover
repairs a seller made. According to McClimans, based on the pictures shown to her
at trial, she believed Aglony failed to disclose some repairs she made. McClimans
testified that an inspection does not replace a Seller’s Disclosure but instead
“discloses anything that the [seller] knew about the property.”
Testimony of Leila Shahin Aglony
Leila Aglony testified through an interpreter. According to Aglony, she
remodels homes and has her own company. Aglony testified she hired contract
workers that she was able to communicate with to remodel the homes she buys, the
workers were not licensed, and she paid them mostly in cash. According to Aglony,
she hires contractors and tells them what she wants them to do to the houses she
purchases. Aglony testified she told them what color paint to use, what type of
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flooring to put in each room, and what kind of countertops in the kitchen, and then
the contractors gave her estimates for the cost of the repairs. At the time of trial she
had purchased about ten properties through foreclosure sales and sold them.
Aglony testified that when she bought the Property in foreclosure it needed a
lot of repairs. According to Aglony, when she purchases a property at a foreclosure,
the seller does not give her any information about the condition of a property, and
so she “guide[s] [her]self from what [her] realtor tells [her] regarding the
conditions.” Aglony testified that for the remodel in this case she hired a contractor
from Home Depot based on a recommendation from another worker she had hired
from there. Aglony testified that she told the contractor to paint the house, install
carpet, install tile flooring in the bathroom, install granite in the kitchen, complete
some yard work, and repair the fence. According to Aglony, she hired the workers
to make “only aesthetic[]” changes. She testified she did not hire them to change the
doors and could not remember if she hired them to change the windows. A page of
her deposition from January 15, 2019, was admitted into evidence. She testified that
she did not remember in her deposition why she had testified that the doors had been
changed because, since that deposition and based on her review of pictures of how
the house was when she bought it and then how it was finished, it does not appear
the doors were not changed. At trial, when she was shown photographs of the living
room floor depicting cracks in the concrete prior to her remodel, she testified “the
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gaps were not open[]” and the HAR.com website and her realtor indicated there were
no flooding problems or foundation problems with Property, and Aglony told the
contractor to install carpet. Aglony testified that she did not think anything was
wrong with the concrete or the floors and that when she walked through the Property,
the cracks were not open. When asked about photographs showing where
MacPherson had pulled back the carpet and showing where concrete had been
poured to level the floor, Aglony testified that she had no knowledge of that, that she
did not pour “shotcrete” in the living room, and her contractors did not inform her
that they leveled the floor. She did not remember telling the contractors to install a
new window on the exterior wall, but she agreed at trial that it had to have been with
her approval. According to Aglony, she never directed her contractors to repair
cracks and only told them to paint the house, which is what she paid for. She testified
she was not present when the contractors were working on the house, she did not
know how the contractors did the work, and she “only saw that [the Property] was
well painted and that was all.” Aglony testified that she directed the contractor to
remove a portion of one of the walls to make the room look wider and the contractor
told her that should not be a problem. According to Aglony, for materials for the
remodel she purchased “just things that had to do with the color and for
decoration . . . granite, lamps, [and] the corners for the bathroom,” but that she
purchased no materials for “patches[]” and only one piece of sheetrock was replaced
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to her knowledge. She testified that the contractors charged her for material they
used but she did not know “everything that they [were] going to do.” She testified
she did not have evidence in her possession that would show that she reimbursed
anyone for the purchase of materials for the Property. She testified that she was
charged an amount for the job, she did not know if her contractors made repairs to
the interior walls of the Property, and that she did not pay for repairs or to repair
cracks, but just paid for “aesthetics.” She testified it took the contractors about three
months to complete the job, and she returned once to the Property near the end of
the three months.
Aglony testified that in her previous sales of other homes she had never
disclosed on the Seller’s Disclosure repairs she made to the homes, that it was not
intentional that she did not disclose the repairs, and she was told by her agent how
to fill out the disclosure. Aglony testified that regarding the Seller’s Disclosure
statement for the Property in this case, she handwrote the disclosures and then her
realtor typed them into the form. She testified that in the Seller’s Disclosure
statement for the Property in this case when she stated that she was not aware of any
previous conditions that she was “acknowledge[ing] that [she] wasn’t aware of any
of the items listed.” According to Aglony, the buyer’s realtor never came back to
request that she fill out the disclosure statement completely.
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Aglony explained that the agent she used when she sold the Property was the
same agent that she had used when she purchased the Property, and Aglony
purchased the Property for approximately $86,000 with the intention of selling it for
around $140,000 (which she testified was the approximate average selling price of
comparable houses in the neighborhood). Aglony testified that her realtor told her
what repairs would add value so that Aglony could price a property at the level that
she wanted. According to Aglony, the repairs she made to the Property here
warranted a price increase from $86,000 to $140,000, and she would have purchased
the Property for $140,000 after she finished her repairs.
Aglony testified that, to her knowledge, her team of people completed the
repairs to the Property, and the Property was livable when she sold it. She testified
that she explained when she sold it that she was an investor, and she never
represented to the inspector or MacPherson’s realtor that Aglony ever lived in the
house. According to Aglony, her intention when she had her team perform repairs
on the house was “[t]o leave it nice so that it can be lived in[,]” that it was never her
intention to hide any defects or defraud any particular purchaser of the Property, and
she did not lie on the Seller’s Disclosure statement.
Testimony of Ray Basinger
Ray Basinger testified that he had been a home inspector for approximately
ten years and had inspected around 500 homes. Basinger testified that he inspected
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the Property in this case at MacPherson’s request, and that there was not anything in
the inspection that led Basinger to believe that the house had any problems that he
failed to disclose in his inspection report. According to Basinger, his inspection
report, as in all his other inspection reports, stated that “only those items specifically
noted as being inspected were inspected” and that the inspection only addressed
“components and conditions that are present, visible, and accessible at the time of
inspection[.]” During trial, and after being shown Aglony’s listing for the house,
Basinger testified that he did not see anything during his inspection which led him
to believe that Aglony had done anything outside of the repairs she disclosed in the
listing. Basinger testified that when he inspected a home, he walked through it,
opened all the windows and doors, checked for drywall cracks (especially off the
corner of the doors and windows), checked for brick cracks and separation in the
drywall, and looked for unlevel flooring.
Basinger testified that at the time he inspected the Property he did not see any
repairs in the drywall and the walls had been freshly painted and the textures
matched. He testified that the quality of the drywall and paint work was “very good,”
and he did not see any unmatched texture which sometimes indicated repairs had
been made. According to Basinger, if a seller used unlicensed contractors to make
repairs, he would want further evaluation of those areas. When Basinger was shown
photographs of the Property before Aglony’s remodel that depicted cracks in the
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Property’s concrete, Basinger testified that if he had known that those pictures
depicted the condition of the Property when MacPherson purchased it, Basinger
would have suggested that MacPherson might want to get an evaluation by a
structural engineer or a foundation person. Basinger testified that neither he nor a
prospective buyer could have discovered any foundation cracks under the carpet of
the Property because they are not able to pull carpet back when doing an inspection.
He testified that he noted some patching on the exterior brick but that it was common
in older houses because, in Texas, brick is not structural, and he had no way of
knowing when the patching had been done. According to Basinger, if the mortar
patching started to crack soon after the buyer moved in, then Basinger would believe
that it was a more recent repair and that there was still some movement going on
with the property. He testified that, knowing what he knew at the time of trial and
after being shown the photographs of “drywall not being drywall,” he considered
some of the repairs to have been poor repairs and he would want to know why
drywall was not used. Basinger testified that at the time of his report, had he seen
the photographs of the large foundation crack on the floor prior to the remodel, he
would have recommended a foundation company and structural engineer. Basinger
testified that if he had seen that the large crack had been repaired, then his
recommendation to the buyer would have been “to get the paperwork of the repairs
and the warranty.”
22
On cross-examination, Basinger agreed that at the time he did his inspection
he did not see any defects with the Property’s foundation and that if he noticed issues
with the roof it would have been noted in his inspection report. Basinger agreed that
in his report he noted, “The exterior brick veneer appears to be repaired in several
areas throughout[]” and that “[t]he repairs appear to be cosmetic but should be
monitored.” According to Basinger, when he said that it should be monitored, he
meant that the buyer should keep an eye on the repaired area and if it separated then
there was a problem. Basinger agreed that he also stated that “[t]he doors and
windows have poor gaps around the outside[,]” and that “[t]he roof structure has
been repaired near the living room, as seen from the attic side.” Basinger testified he
also noted in his inspection report that
Exterior and interior walls of the house appear to have settled in
multiple areas. The doors and windows have poor gaps around the
outside. There are no drywall cracks, as the interior and exterior have
been painted. I recommend monitoring for cracks.
Basinger testified that his statement regarding monitoring for cracks meant there
were no cracks there, but if cracks appeared then there was a poor repair or the
structure was moving. He testified that he also noted that there were irregular door
gaps throughout the house, that the “gaps appear to be from structure settling[,]” and
that he noted that he “recommend[ed] adjusting as needed.” He also testified that he
noted in his report that the driveway was cracked, but he testified that the cracked
driveway did not indicate a foundation issue because the driveway was a separate
23
driveway pour and had nothing to do with the foundation. According to Basinger,
he ultimately concluded in his report that the “foundation appeared to be supporting
the structure as intended” because TREC requires all licensed inspectors to render
their opinion on the foundation, he did not see any drywall cracks, and he could not
tell that the floor had been leveled excessively. Basinger testified that the irregular
door gaps did not necessarily indicate structural or foundation issues because a good
contractor could hang a door perfectly, but with other contractors the doors could be
“consistently a little bit off.”
The Trial Court’s Findings of Fact and Conclusions of Law
The trial court made the following findings, in relevant part:
1. Colton Macpherson purchased a home from Leila Shahin Aglony . . .
(the “Property”) for $140,000.00. He sues based upon alleged problems
with the Property which he detected after the purchase and which he
says were either misrepresented or concealed by Leila Shahin Aglony
in the Seller’s Disclosure (but see ¶2, infra). As he explained, he had
100% faith in what he read in the Seller’s Disclosure. This lawsuit is
based entirely on his claimed reliance on the Seller’s Disclosure in
purchasing the Property.
2. The earnest money contract states that at the time Colton Macpherson
signed the earnest money contract, that he had not received the Seller’s
Disclosure. That is, he offered to buy the Property without relying on
the Seller’s Disclosure because he had not even received it yet. In fact,
the recitation in the earnest money contract and the dates on the earnest
money contract versus the Seller’s Disclosure shows that he did not
receive the Seller’s Disclosure until ten days after executing the earnest
money contract.
3. The earnest money contract recites that the sale of the property is As
Is. Colton Macpherson explained that he did not and does not know
24
what that term means, but “as is” is defined in paragraph 7D of the
earnest money contract as meaning “the present condition of the
Property with any and all defects and without warranty except for the
warranties of title and the warranties in this contract”. Furthermore,
Colton Macpherson both hired his inspector after the earnest money
contract and negotiated repairs based upon that inspection. The parties
agreed to some repairs and not to others prior to closing.
....
5. Section 2 of the Seller’s Disclosure asks if the seller is aware of any
defects or malfunctions in the floors or foundation. Leila Shahin
Aglony as seller said “no”. The evidence showed that she was, in fact,
unaware of any such defects or malfunctions. Indeed, there was no
evidence other than speculation that there were defects and/or
malfunctions in the foundation.
6. Section 3 of the Seller’s Disclosure asked if the seller is aware of any
prior foundation repairs, settling or soil movement. Leila Shahin
Aglony as seller did not respond to Section 3 at all, so she made no
representation there.
....
10. Colton Macpherson hired a certified inspector of his choosing, Ray
Basinger, to inspect the property.
a. The inspection occurred after the earnest money contract but
prior to the time that Colton Macpherson received the Seller’s
Disclosure.
b. The Inspection Report revealed no major defects.
c. The inspector noted some things that could be considered signs
of possible foundation movement, but opined that the foundation
“appeared to be supporting the structure as intended.”
d. Based on the Inspection Report, the parties negotiated making
some changes/repairs prior to closing.
e. Colton Macpherson closed the sale.
11. Colton Macpherson as buyer had 7 days after his receipt of the
Seller’s Disclosure to decline to close the sale and get his earnest money
back. See ¶7B(2). Likewise, because the Seller’s Disclosure he received
25
was incomplete, he as buyer could have declined to close at any time
before the closing date. Colton Macpherson closed the sale.
12. After closing, Colton Macpherson discovered ceiling repairs and
wall repairs via patched sheetrock holes. He also saw a crack in the
foundation when the carpet was pulled back. He also found several
repaired and/or remodeled items which were not functioning. Had he
known of these repairs and conditions, he would have not purchased
the Property. Colton Macpherson’s complaints, however, relate to the
portion of the Seller’s Disclosure related to defects and malfunctions—
not to past repairs—and, again, he had not received the Seller’s
Disclosure at the time he made his offer to purchase the Property or
even when the contract was executed (see ¶¶2, 5, 6, 7, 8, supra).
....
14. Ray Basinger’s Inspection Report [] noted that the foundation was
not a problem. Colton Macpherson noted that his inspector was not a
structural engineer, but neither was anyone involved in this transaction
and no structural engineer or other expert testified at trial. In fact, Mr.
Basinger opined that the foundation “appeared to be supporting the
structure as intended,” and although he said that he would have called
for a structural engineer had he seen photographs of the foundation
before it was carpeted, there was no evidence that the foundation was
not supporting the structure as intended. There was speculation on that
point, but no expert testified and, thus, none opined that the foundation
was defective or failing.
....
16. Leila Shahin Aglony is an investor who never lived on the Property.
She purchases property to remodel and sell for profit. Her realtor told
her the Property had no foundation issues. She never told her
contractors to repair the foundation or to cover anything up; she asked
them to lay carpet.
Conclusions of Law:
....
26
3. There is no evidence or insufficient evidence to support a finding of
liability against the Defendant. All liability depends on Plaintiff’s
claimed reliance on the Seller’s Disclosure and his position that he
would not have purchased the Property had the Seller’s Disclosure
revealed certain things about the Property, but the earnest money
contract itself, coupled with the date on the contract and the date on the
Seller’s Disclosure, conclusively disproves his reliance because he had
not seen the Seller’s Disclosure when he made his offer to purchase the
Property and he did not receive the Seller’s Disclosure until 10 days
after the earnest money contract was executed.
4. There is no evidence or insufficient evidence to prove damages. All
damages claimed were related to costs of repairs, but there was no
evidence of what the proposed repairs were, that such repairs were
reasonable and necessary, that the amount to be charged for such repairs
was reasonable and necessary, and, other than the demand letter, there
was no evidence of even the price for repairs.
....
Standard of Review
In a bench trial, the trial court, as factfinder, is the sole judge of the credibility
of the witnesses and the weight of the evidence and is responsible for resolving
conflicts in the evidence and drawing reasonable inferences from basic facts to
ultimate facts. See City of Keller v. Wilson, 168 S.W.3d 802, 819-21 (Tex. 2005);
Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 625 (Tex. 2004). The factfinder may
choose to believe one witness over another, and we may not substitute our judgment
for that of the factfinder. City of Keller, 168 S.W.3d at 819. When a trial court makes
specific findings of fact and conclusions of law following a bench trial and a
reporter’s record is before the appellate court, the findings will be sustained if there
27
is evidence to support them, and the appellate court will review the legal conclusions
drawn from the facts to determine their correctness. Trelltex, Inc. v. Intecx, L.L.C.,
494 S.W.3d 781, 789 (Tex. App.—Houston [14th Dist.] 2016, no pet.). “Findings of
fact ‘have the same force and dignity’ as a jury’s verdict and are reviewable under
the same standards of legal and factual sufficiency.” Foley v. Capital One Bank,
N.A., 383 S.W.3d 644, 646 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citation
omitted). We review a trial court’s conclusions of law as legal questions, de novo,
and will uphold them on appeal if the judgment can be sustained on any legal theory
supported by the evidence. See BMC Software Belgium, N.V. v. Marchand, 83
S.W.3d 789, 794 (Tex. 2002); In re Estate of Stafford, 244 S.W.3d 368, 369 (Tex.
App.—Beaumont 2008, no pet.).
In a legal sufficiency challenge, we credit evidence that favors the finding, if
a reasonable factfinder could, and we disregard evidence contrary to the challenged
finding unless a reasonable factfinder could not disregard it. See City of Keller, 168
S.W.3d at 827. When a party challenges the legal sufficiency of the evidence
supporting an adverse finding on an issue on which the party had the burden of proof,
the party must show that the evidence establishes all vital facts in support of the issue
as a matter of law. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In
a factual sufficiency review, we examine all the evidence, and we will not set aside
28
the judgment unless it is so contrary to the overwhelming weight of the evidence as
to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
Discussion
In four issues on appeal, MacPherson challenges the sufficiency of the
evidence supporting the judgment rendered by the trial court. We address his second
and fourth issues first. In his second issue, MacPherson argues that the trial court
erred in finding insufficient evidence supporting no liability against Aglony based
entirely on the trial court’s finding of no reliance. In issue four, MacPherson argues
the trial court’s order should be reversed because MacPherson provided
uncontroverted evidence of each element of his claims for DTPA violations,
statutory fraud, fraud by nondisclosure, breach of contract, and negligence. We
interpret both of these issues as challenging the trial court’s Conclusion of Law #3,
wherein the trial court found no evidence or insufficient evidence to support a
finding of liability against Aglony and we address those issues first. As explained
above, we review Conclusion of Law #3 de novo, and will uphold it on appeal if the
judgment can be sustained on any legal theory supported by the evidence. See BMC
Software Belgium, N.V., 83 S.W.3d at 794; Stafford, 244 S.W.3d at 369.
The trial court found in Finding of Fact #3 that the contract recites that the
sale of property is “As Is” and that Paragraph 7D of the contract defines “As Is” as
“the present condition of the Property with any and all defects and without warranty
29
except for the warranties of title and the warranties in this contract.” MacPherson
has not challenged that finding of fact on appeal.
“[A] seller of real estate is under a duty of disclosing material facts which
would not be discoverable by the exercise of ordinary care and diligence on the part
of the purchaser, or which a reasonable investigation and inquiry would not
uncover.” Smith v. Nat’l Resort Cmtys., Inc., 585 S.W.2d 655, 658 (Tex. 1979). A
seller has no duty to disclose facts that he does not know and is not liable for failing
to disclose “what he only should have known.” Prudential Ins. Co. of Am. v.
Jefferson Assocs., Ltd., 896 S.W.2d 156, 162 (Tex. 1995). In addition, a seller is not
required to disclose any knowledge of past conditions on the property that are not
known to exist at the time the Seller’s Disclosure Notice is signed. See Bynum v.
Prudential Residential Servs., L.P., 129 S.W.3d 781, 795 (Tex. App.—Houston [1st
Dist.] 2004, pet. denied). A seller has no duty to disclose a condition or defect which
was previously repaired or remedied. See Pfeiffer v. Ebby Halliday Real Estate, Inc.,
747 S.W.2d 887, 890 (Tex. App.—Dallas 1988, no writ) (“[R]epairs correct defects,
not prove their continued known existence.”). Section 5.008(a) of the Texas Property
Code requires a seller of residential real property to give the purchaser a written
notice that “contains, at a minimum, all of the items in the notice prescribed by [that]
section.” Tex. Prop. Code Ann. § 5.008(a). The Seller’s Disclosure Notice of
Property Condition form must include a statement in capital letters that the notice
30
“is a disclosure of [a] seller’s knowledge of the condition of the property as of the
date signed by seller and is not a substitute for any inspections or warranties the
purchaser may wish to obtain.” Id. § 5.008(b). The notice “shall be completed to the
best of seller’s belief and knowledge as of the date the notice is completed and signed
by the seller.” Id. § 5.008(d). If a contract is entered without the seller providing the
notice required by this section, the purchaser may terminate the contract for any
reason within seven days after receiving the notice. Id. § 5.008(f). “[N]othing in the
text of section 5.008 imposes liability on a seller for failing to exceed section 5.008’s
disclosure requirements.” Rohrs v. Hartz, No. 09-19-00196-CV, 2021 Tex. App.
LEXIS 5155, at *36 (Tex. App.—Beaumont June 29, 2021, no pet.) (mem. op.)
(citing Tex. Prop. Code Ann. § 5.008; Aflalo v. Harris, 583 S.W.3d 236, 247 (Tex.
App.—Dallas 2018, pet. denied)).
“A buyer who purchases property ‘as is’ chooses ‘to rely entirely upon his
own determination’ of the property’s value and condition without any assurances
from the seller.” Williams v. Dardenne, 345 S.W.3d 118, 123 (Tex. App.—Houston
[1st Dist.] 2011, pet. denied) (quoting Prudential Ins. Co., 896 S.W.2d at 161).
Under an agreement to purchase something “As Is,” the buyer agrees to make his
own appraisal of the bargain and accepts the risk that he may be wrong. Rohrs, 2021
Tex. App. LEXIS 5155, at **41-42 (citing Prudential Ins. Co., 896 S.W.2d at 161).
“‘The seller gives no assurances, express or implied, concerning the value or
31
condition of the thing sold[,]’ and the buyer chooses to rely completely on his own
determination of the condition and value of the purchase, removing the possibility
that the seller’s conduct will cause him damage.” Id. (quoting Prudential Ins. Co.,
896 S.W.2d at 161). Whether an “As Is” clause is enforceable is a question of law
we review de novo. See Prudential Ins. Co., 896 S.W.2d at 161.
An “As Is” clause generally is enforceable if it was a significant part of the
basis of the bargain, rather than an incidental or boilerplate provision, and was
entered into by parties of relatively equal bargaining position. Id. at 162; Bynum,
129 S.W.3d at 789. An “As Is” clause is not valid and enforceable if it “‘is a product
of fraudulent representation or fraudulent concealment by the seller or the seller
obstructs the buyer’s ability to inspect the property.’” Rohrs, 2021 Tex. App. LEXIS
5155, at *40 (quoting Juda v. Marinemax, Inc., No. 01-08-00138-CV, 2018 Tex.
App. LEXIS 10640, at *12 (Tex. App.—Houston [1st Dist.] Dec. 20, 2018, no pet.)
(mem. op.); see also Prudential Ins. Co., 896 S.W.2d at 161; Bynum, 129 S.W.3d at
788-89. To prove fraudulent representation, the plaintiff buyer must show that “the
defendant made a material misrepresentation; the defendant was either aware that
the representation was false or that he lacked knowledge of its truth; the defendant
intended for the plaintiff to rely on the misrepresentation; the plaintiff relied on the
misrepresentation; and the plaintiff’s reliance caused injury.” Pogue v. Williamson,
605 S.W.3d 656, 665-66 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (citing Int’l
32
Bus. Mach. Corp. v. Lufkin Indus., LLC, 573 S.W.3d 224, 228 (Tex. 2019)). An
enforceable “As Is” clause negates causation as a matter of law. Id. at 665 (citing
Prudential Ins. Co., 896 S.W.2d at 161); see also Williams, 345 S.W.3d at 124
(citing Prudential Ins. Co., 896 S.W.2d at 161; Welwood v. Cypress Creek Estates,
Inc., 205 S.W.3d 722, 726 (Tex. App.—Dallas 2006, no pet.)).
MacPherson did not argue in the trial court and does not argue on appeal that
the “As Is” clause was not a significant basis of the bargain, or that he and Aglony
had unequal bargaining power, or that he was precluded from inspecting the
Property. As for whether Aglony induced MacPherson into buying the Property by
making fraudulent representations or by fraudulently concealing material
information, the trial court as the trier of fact, heard the testimony from the witnesses
and had before it the Seller’s Disclosure and other exhibits. The trial court heard
Aglony’s testimony that she was unaware of any defects or malfunctions in the
Property except the driveway (which she disclosed in the Seller’s Disclosure), that
she instructed the contractors that she hired to remodel the Property to make
cosmetic changes, and she was unaware of any structural or foundation repairs made
by her contractors or of other defects or malfunctions with the Property. The trial
court also had before it the One to Four Family Residential Contract that stated that,
at the time the contract was executed, MacPherson had not received the Seller’s
Disclosure at the time he first entered into the Contract. The trial court also heard
33
evidence that he received the Seller’s Disclosure timely under the Contract and that
MacPherson could have, but chose not to, cancel the agreement after receiving the
disclosure and after having his own inspection. The trial court, as factfinder, was the
sole judge of the witnesses’ credibility and could have reasonably concluded that
Aglony did not make a fraudulent representation or conceal material information
that induced MacPherson to enter into the contract. See City of Keller, 168 S.W.3d
at 827; Sw. Bell Tel. Co., 164 S.W.3d at 625. Therefore, MacPherson failed to meet
his burden of proof to establish that the “As Is” clause was unenforceable because it
was a product of a fraudulent representation or fraudulent concealment, or that the
seller obstructed the buyer’s ability to inspect the property.
By purchasing the home “As Is,” MacPherson agreed to make his own
appraisal of the bargain and to accept the risk as to the quality of the Property and
any resulting loss. See Rohrs, 2021 Tex. App. LEXIS 5155, at **40-41 (citing
Prudential Ins. Co., 896 S.W.2d at 161; Mid Continent Aircraft Corp. v. Curry Cty.
Spraying Serv., Inc., 572 S.W.2d 308, 313 (Tex. 1978)). Because the “As Is” clause
34
here negated causation in MacPherson’s DTPA 2, negligence3, breach of contract 4,
and fraud claims 5, we conclude that legally sufficient evidence supports the trial
court’s Conclusion of Law #3 that no evidence or insufficient evidence supported a
finding of liability against Aglony on MacPherson’s claims against Aglony. See
2
Causation is an element of MacPherson’s DTPA claim. See Prudential Ins.
Co. of Am. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 160-61 (Tex. 1995); see also
Tex. Bus. & Com. Code Ann. § 17.50(a) (providing that claims brought under DTPA
require a showing of “producing cause”).
3
The elements of negligence are legal duty, a breach of that duty, and damages
proximately caused by the breach. Gharda USA, Inc. v. Control Solutions, Inc., 464
S.W.3d 338, 352 (Tex. 2015) (citation omitted).
4
The elements of breach of contract are: (1) the existence of a valid contract,
(2) the plaintiff’s performance or tendered performance, (3) the defendant’s breach
of contract, and (4) damages resulting from the breach. Trahan v. Fire Ins.
Exchange, 179 S.W.3d 669, 674 (Tex. App.—Beaumont 2005, no pet.)
5
The elements of fraud by nondisclosure are: (1) the defendant failed to
disclose facts to the plaintiff, (2) the defendant had a duty to disclose those facts, (3)
the facts were material, (4) the defendant knew the plaintiff was ignorant of the facts
and did not have an equal opportunity to discover the facts, (5) the defendant was
deliberately silent when he had a duty to speak, (6) by failing to disclose the facts,
the defendant intended to induce the plaintiff to take some action or refrain from
acting, (7) the plaintiff relied on the defendant’s nondisclosure, and (8) the plaintiff
suffered injury as a result of acting without knowledge. Rohrs v. Hartz, No. 09-19-
00196-CV, 2021 Tex. App. LEXIS 5155, at *33 (Tex. App.—Beaumont June 29,
2021, no pet.) (mem. op.) (citing Horizon Shipbuilding, Inc. v. BLyn II Holding,
LLC, 324 S.W.3d 840, 850 (Tex. App.—Houston [14th Dist.] 2010, no pet.)).
The elements of statutory fraud in a real estate transaction are (1) a false
representation of a past or existing material fact, when the false representation is (A)
made to a person for the purpose of inducing the person to enter into a contract and
(B) relied on by that person in entering into the contract; or (2) a 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).
35
Pogue, 605 S.W.3d at 665 (citing Prudential Ins. Co., 896 S.W.2d at 161); see also
Williams, 345 S.W.3d at 124 (citing Prudential Ins. Co., 896 S.W.2d at 161;
Welwood, 205 S.W.3d at 726). We overrule issues two and four.
In MacPherson’s first issue, he argues the trial court “committed an error of
law by only considering a fraction of Appellant’s claims and evidence[.]” On appeal,
MacPherson challenges Findings of Fact #1, #2, and #12 and he argues that the last
sentence of each of those findings demonstrates that the trial court erroneously
limited MacPherson’s claims to his reliance on the Seller’s Disclosure and
erroneously limited MacPherson’s claims to events that occurred before the signing
of the purchase contract. He also asserts that the trial court erred by not accepting
Aglony’s prior judicial admission related to floor repairs and her admissions at trial
to making repairs that should have been included in the Seller’s Disclosure. As the
factfinder, the trial court is the sole judge of the credibility of the witnesses and the
weight of the evidence and is responsible for resolving conflicts in the evidence and
drawing reasonable inferences from basic facts to ultimate facts. See City of Keller,
168 S.W.3d at 819-21; Sw. Bell Tel. Co., 164 S.W.3d at 625. The trial court could
have chosen to believe one witness over another and could have assigned some or
no weight to the discovery responses, and we may not substitute our judgment for
that of the factfinder. See City of Keller, 168 S.W.3d at 819. MacPherson’s first issue
challenges findings that we need not examine any further in light of our resolution
36
of issues two and four, which fully support the trial court’s judgment. See Tex. R.
App. P. 47.1.
In his third issue, MacPherson challenges the sufficiency of the evidence
supporting the trial court’s finding that there was no evidence or insufficient
evidence to prove damages. Because we have overruled MacPherson’s issues on
liability, we need not reach his third issue challenging the sufficiency of the evidence
supporting the trial court’s finding of no damages. See id.
We affirm the trial court’s judgment.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on May 13, 2022
Opinion Delivered September 22, 2022
Before Golemon, C.J., Horton and Johnson, JJ.
37