Jeanenne Loewe, Individually, and D/B/A the Elite Salon of 1960 v. Trammell Crow Company and Trammell Crow Houston, Ltd. ( 2007 )

Affirmed and Plurality Memorandum Opinion filed November 15, 2007

Affirmed and Plurality Memorandum Opinion filed November 15, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00971-CV

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JEANENNE LOEWE, INDIVIDUALLY, and

D/B/A/ THE ELITE SALON OF 1960, Appellant

V.

TRAMMELL CROW COMPANY and

TRAMMELL CROW HOUSTON, LTD., Appellees

On Appeal from the 334th District Court

Harris County, Texas

Trial Court Cause No. 2005-46499-A

P L U R A L I T Y  M E M O R A N D U M   O P I N I O N

In this lease dispute, Jeanenne Loewe, individually, and d/b/a The Elite Salon of 1960 appeals a take-nothing summary judgment granted in favor of Trammell Crow Company and Trammell Crow Houston, Ltd. (collectively, ATrammell Crow@) on numerous grounds.  We affirm.

                                                                   Background

Trammell Crow was the leasing agent for the Commons at Willowbrook shopping center (the Ashopping center@) that was owned by Commons at Willowbrook, Inc. (AWillowbrook@).  In 1999, Loewe contacted Matthew Keener, a real estate agent with Trammell Crow, to inquire about leasing a space in the shopping center in which to open a hair salon.  After discussions with Keener, Loewe executed a lease (the Alease@) in March of 2000.^[1]  After encountering financial difficulties, Loewe closed her hair salon and vacated the premises in December of 2004.

As relevant to this appeal, Loewe filed suit against Trammell Crow in 2005, asserting claims for statutory and common law fraud and violations of the Real Estate Licensing Act^[2] (ARELA@) and the Deceptive Trade Practices Act^[3] (ADTPA@); and seeking rescission of the lease on the ground that it was void as illegal and against public policy.^[4] Trammell Crow filed a motion for summary judgment (the Amotion@) that asserted no-evidence as to each element of these claims as well as various traditional summary judgment grounds.  The trial court granted Trammell Crow=s motion without specifying the basis on which it was granted.

                                                            Standard of Review

A traditional summary judgment must be granted if the motion and summary judgment evidence show that, except as to the amount of damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c).  A no‑evidence motion for summary judgment must be granted if: (1) the moving party asserts that there is no evidence of one or more specified elements of a claim or defense on which the adverse party would have the burden of proof at trial; and (2) the respondent produces no summary judgment evidence raising a genuine issue of material fact on those elements. See Tex. R. Civ. P. 166a(i).

In reviewing a traditional summary judgment, we examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion.  Yancy v. United Surgical Partners Int=l, Inc., __ S.W.3d __, __ (2007).  In reviewing a no‑evidence summary judgment, we apply the same standard, but consider only the evidence contrary to the motion.  See City of Keller v. Wilson, 168 S.W.3d 802, 825 (Tex.2005).  When, as here, a summary judgment does not specify the grounds on which it was granted, we will affirm the judgment if any of the theories advanced in the motion and preserved for appellate review is meritorious.  Browning v. Prostok, 165 S.W.3d 336, 344 (Tex. 2005).

In this case, because the summary judgment motions and responses were numerous, lengthy, and convoluted, and because many of the issues in the briefs do not bear on what is dispositive of the appeal, we will confine our discussion to the dispositive issues.^[5]

                                                        Basis of Loewe=s Claims

Loewe=s claims are all based on her allegations that: (1) from 1999 until sometime after she vacated the leased space in 2004, Loewe had believed that Keener was representing her interests in their discussions concerning her lease; (2) the RELA required Keener to disclose to Loewe that he represented the landlord, Willowbrook, in the transaction,^[6] but Keener did not disclose to Loewe that he represented Willowbrook or that he did not represent Loewe; (3) the RELA required Keener to provide Loewe a further written notice of general information about real estate agency relationships (an Aagency disclosure notice@), but Loewe was never provided any such written notice;^[7] (4) Trammell Crow was not licensed to conduct real estate transactions in Texas; (5) by acting as a real estate broker without a license, failing to disclose the agency relationship, and failing to provide the agency disclosure notice, all in violation of the RELA, Keener and Trammell Crow concealed a material fact, violated the DTPA, and caused the lease to be void as illegal and against public policy; (6) Loewe would not have continued the discussions with Keener or entered into the lease without her own agent if she had known that Keener was representing only the interests of the landlord; and (7) the unfavorable lease terms that Loewe agreed to because her interests had not been represented by an agent caused the failure of Loewe=s hair salon business and, thus, the loss of the funds that Loewe had expended in the venture, including the cost of the leasehold improvements.

                                                  License and Rescission Claims

In support of her claim that Trammell Crow was not licensed as a real estate agent, Loewe relies on pages printed from the Texas Real Estate Commission=s website that were attached to her summary judgment response, objected to by Trammell Crow as hearsay, and stricken by the trial court.  Loewe=s brief incorrectly refers to these exhibits as Aletters from the TREC regarding the failure of Appellees to have licenses@ and does not address the merits of Trammell Crow=s hearsay objection at all.  In addition, these pages do not affirmatively show that Trammell Crow was not licensed but only that the website search on the names entered did not find a licensee.

Moreover, Loewe=s contention that Trammell Crow was unlicensed pertains only to her claim that the lease was a void agreement that was subject to rescission.  However, because Trammell Crow was not a party to the lease, it is not apparent how the license issue and the claim for rescission of the lease could be material to any theory of recovery by Loewe against Trammell Crow.  Therefore, we overrule Loewe=s third, fourth, and seventh issues to the extent they challenge the trial court=s striking of the exhibits containing the website printout and the summary judgment entered against Loewe=s claims for rescission.

                                                        Fraud and DTPA Claims

Trammell Crow=s motion for summary judgment asserted, as relevant to our disposition, that: (1)  Loewe=s DTPA claim was barred by the exemption for professional service; and (2) on Loewe=s statutory and common law fraud claims, there was no evidence that Trammell Crow made a false representation to Loewe for the purpose of inducing her to enter into a real estate contract.

The DTPA does not apply to a claim for damages based on the rendering of professional service, the essence of which is the providing of advice, judgment, opinion, or similar professional skill.^[8]  See Tex. Bus. & Com. Code Ann. ' 17.49(c).  However, this exemption does not apply to: (1) an express misrepresentation of fact that cannot be characterized as advice, judgment, or opinion; or (2) a failure to disclose information concerning goods or services, which was known at the time of the transaction, if such failure to disclose was intended to induce the consumer into a transaction the consumer would not have entered into had the information been disclosed.  Id. '' 17.49(c), 17.46(b)(24).

In responding to Trammell Crow=s summary judgment contention asserting the professional service exemption, Loewe=s summary judgment response did not contend that Trammell Crow had made an affirmative misrepresentation, but only that it had concealed unspecified material facts.  However, this portion of Loewe=s response did not contend, or identify evidence showing, that any fact had been concealed for the purpose of inducing Loewe to enter into a transaction.

Similarly, Loewe=s claims for statutory and common law fraud each required evidence that Trammell Crow made a false statement with an intent to induce Loewe to act upon it.  See Tex. Bus. & Com. Code Ann. ' 27.01(a)(1)(A) (Vernon 2002); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 211 (Tex. 2002).  Again, however, Loewe=s brief has cited, and we have found, no portion of any of her summary judgment responses where she contended, or identified any evidence that, Trammell Crow made any false statement or concealed any material fact with an intent to induce Loewe to act upon it.^[9]  Therefore, we overrule Loewe=s challenges to the summary judgment entered against her claims for fraud and DTPA violations.  Because Loewe=s remaining challenges do not bear on our grounds for affirming the trial court=s judgment, we do not address them. The judgment of the trial court is affirmed.

/s/        Richard H. Edelman             

Senior Justice

Judgment rendered and Plurality Memorandum Opinion filed November 15, 2007.

Panel consists of Justices Yates, Seymore, and Edelman. (Yates, J., and Seymore, J., concurring without an opinion.)^*

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^[1]           Thereafter, Loewe executed three lease amendments, effective in June of 2000, October of 2001, and October of 2003, respectively.

^[2]           See Tex. Occ. Code Ann. '' 1101.001-.806 (Vernon 2004 & Supp. 2007). Although the RELA has been recodified since the operative facts of this case occurred, we will cite to the current version of statutes where differences from the preceding versions are not material to our disposition.

^[3]           See Tex. Bus. & Com. Code Ann. '' 17.01-.854 (Vernon 2002 & Supp. 2007).

^[4]           Loewe has not assigned error to the take-nothing summary judgment entered against her claims for negligence, negligent misrepresentation, negligence per se, tortious interference, declaratory judgment, or breach of fiduciary duty.

^[5]           See Tex. R. App. P. 47.1 (requiring a court of appeals opinion to be as brief as practicable but to address every issue raised that is necessary to the final disposition).

^[6]           See Tex. Occ. Code Ann. ' 1101.558(b)(1).

^[7]           See id. ' 1101.558(c), (d).  Although not material to our disposition, this written disclosure merely provides general information concerning agency relationships in real estate transactions, but provides no information about the agency relationship in any particular transaction.

^[8]           Loewe does not contest that the services she allegedly sought from Trammell Crow were professional for this purpose.

^[9]           Although Loewe=s affidavit, attached to her summary judgment response, states that Keener told her that the price and other terms of her lease were the best that could be obtained in the area and similar to what other shopping centers in the area were charging, her summary judgment responses did not reference this statement in her affidavit.  Instead, the responses relied upon the alleged non-disclosures concerning the agency relationship and the alleged lack of licensing to support the claims for fraud and DTPA violations.

^*           Senior Justice Richard H. Edelman sitting by assignment.