Dennis Fuller and Lucie Lafreniere v. Rony-Claude Le Brun and Equinox Design, Inc.

Affirmed in Part, Reversed and Remanded in Part, and Majority and
Concurring and Dissenting Opinions filed December 8, 2020
In The
Fourteenth Court of Appeals
NO. 14-18-01023-CV
DENNIS FULLER AND LUCIE LAFRENIERE, Appellants
V.
RONY-CLAUDE LE BRUN AND EQUINOX DESIGN, INC., Appellees
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Cause No. 2015-36720
CONCURRING AND DISSENTING OPINION
I concur with the majority’s affirmance of the trial court’s summary
judgment on appellants’ negligence, breach of warranty, DTPA, breach of the
Trust Fund Act, and breach of fiduciary duty causes of action. Because I disagree
with the majority’s reversal of the trial court’s summary judgment on appellants’
fraud causes of action, I respectfully dissent.
Appellants alleged two specific fraud claims against appellees. First,
appellants alleged that appellees misrepresented the quality of the work performed
on their new home. Second, appellants alleged that Le Brun misrepresented that he
was an architect. Appellees eventually moved for summary judgment on all of
appellants’ claims against them. The trial court granted appellees’ motion only on
appellants’ tort claims.
Appellants remaining claims went to trial before a jury. At the conclusion of
the evidence, the trial court submitted the case to the jury. Question 1 of the jury
charge asked the jury “[d]id Equinox Design, Inc. fail to comply with the agreement?”
The trial court instructed the jury that “Equinox failed to comply with the agreement if
it constructed a defective and not code-compliant home.” The jury answered “No.”
Question 5 of the charge asked the jury “[h]as Equinox Design, Inc. been unjustly
enriched at the Fullers’ expense?” The trial court then instructed the jury that
“[u]njust enrichment occurs when a person has wrongfully secured a benefit or has
passively received one which it would be unconscionable to retain. A person is
unjustly enriched when he obtains a benefit from another by fraud, duress, or the
taking of an undue advantage.”1 The jury answered “No” to Question 5. The trial
court then signed a take-nothing judgment on appellants’ claims against appellees.
Appellants argue on appeal that the trial court erred when it granted
appellees’ motion for summary judgment on their tort claims. Among other
arguments, appellees assert that any error that may have been committed by the
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The jury charge did not include a legal definition of the word “fraud.” It did, however,
include an instruction that “[i]f [the trial court’s] instructions use a word in a way that is different
from its ordinary meaning, use the meaning I give you, which will be a proper legal definition.”
“Fraud” is defined as “deceit, trickery,” a “trick,” and an “impostor,” or a “cheat.” Merriam-
Webster Dictionary New Edition 289 (2004). Similar to the ordinary meaning of “fraud,” the
legal “elements of fraud are: (1) that a material misrepresentation 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.” Italian Cowboy
Partners v. Prudential Ins., 341 S.W.3d 323, 337 (Tex. 2011).
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trial court when it granted the partial summary judgment was rendered harmless by
the results of the subsequent jury trial. I believe that the jury’s findings in response
to Questions 1 and 5 rendered any error in the trial court granting summary
judgment on appellants’ fraud claims harmless. See Progressive Cty. Mut. Ins. Co.
v. Boyd, 177 S.W.3d 919, 921 (Tex. 2005) (“We conclude that the subsequent
events, being properly before the court of appeals and this Court, should be
considered in determining harm from the trial court’s grant of summary
judgment.”); Zarate v. Rodriguez, 542 S.W.3d 26, 40 (Tex. App.—Houston [14th
Dist.] 2017, pet. denied) (“The trial court also granted summary judgment on
Zarate’s affirmative defense of fraud. We conclude this error was harmless as well
because the trial court submitted Zarate’s common-law and statutory fraud claims
for affirmative relief, containing similar elements, in Question 6. The jury
answered ‘No.’”).
In their first fraud cause of action, appellants alleged that appellees
misrepresented the quality of the work performed on their new home. By
answering “No” to the first jury question, the jury necessarily found that: (1)
appellees complied with the contract; (2) the home at issue did not have any
defects; and (3) the home was code-compliant. I would hold that the jury’s
negative answer to Question 1 renders any error the trial court may have
committed when it granted summary judgment on appellants’ first fraud claim
harmless. See Progressive Cty. Mut. Ins. Co., 177 S.W.3d at 921; Casa Del Mar
Ass’n, Inc. v. Gossen Livingston Assoc., Inc., 434 S.W.3d 211, 222 (Tex. App.—
Houston [1st Dist.] 2014, pet. denied) (“As discussed above, the findings that the
arbitration panel did make preclude Casa del Mar from being able to establish at
least one essential element of each of its claims in this suit.”).
The result is the same for appellants’ fraud claim based on an alleged
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misrepresentation by Le Brun that he was an architect. By answering question 5 of
the charge “No,” the jury necessarily found that appellees did not obtain a benefit
by fraud or by the taking of an undue advantage. I would hold that this finding
renders harmless any error the trial court may have committed when it granted
summary judgment on appellants’ second fraud cause of action. See Progressive
Cty. Mut. Ins. Co., 177 S.W.3d at 921; Harpst v. Fleming, 566 S.W.3d 898, 912
(Tex. App.—Houston [14th Dist.] 2018, no pet.) (concluding that jury’s finding
that law firm complied with its fiduciary duty “negates recovery for appellants’
breach of the [master settlement agreement] claim.”); Zarate, 542 S.W.3d at 40
(concluding error in granting summary judgment on fraud affirmative defense
harmless because affirmative fraud claims containing similar elements were
submitted to and rejected by the jury); Smith v. Moody Gardens, Inc., 336 S.W.3d
816, 821 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (“Because the jury found
against Smith on the statutory claim, that finding negates recovery for the common
law claims” because they were substantively the same). Because I would affirm
the trial court’s summary judgment on all of appellants’ tort claims, and the
majority does not, I respectfully dissent.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Zimmerer, Spain, and Hassan (Zimmerer, J., concurring
and dissenting).
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