In Cause No. 14-12-00104-CV Reversed and Rendered, In Cause No. 14-12-

00170-CV Affirmed, and Opinion filed November 26, 2013.

In The

Fourteenth Court of Appeals 

NO. 14-12-00104-CV

FLUTOBO, INC. D/B/A KELLER WILLIAMS REALTY NORTHEAST, 

Appellant

V.

SHAWN HOLLOWAY AND STEPHANIE HOLLOWAY, Appellees

On Appeal from the 164th District Court

Harris County, Texas

Trial Court Cause No. 2009-43155

NO. 14-12-00170-CV

SHAWN HOLLOWAY AND STEPHANIE HOLLOWAY, Appellants

 V.

JUDY HOPKINS, Appellee
2

On Appeal from the 164th District Court

Harris County, Texas

Trial Court Cause No. 2009-43155-B

O P I N I O N

In this case we examine a real estate company’s liability to buyers in the 

context of the sale of a home owned by one of the company’s salespersons in a 

transaction in which the company was both the buyer’s agent and the seller’s 

agent. After the sale, the buyers of the home discovered termite damage and sued 

the termite inspector, the seller, the real estate company, and the real estate broker 

designated by the company as the company’s agent for purposes of the Texas Real 

Estate License Act. The buyers settled their claims against the inspector. The trial 

court severed the claims against the seller after she filed for bankruptcy protection. 

The trial court granted summary judgment in favor of the real estate broker and 

severed these claims to make the judgment final. The claims against the real estate 

company were tried to a jury, which found liability and damages under various 

claims. In consolidated appeals, we conclude that the evidence is legally 

insufficient to support a finding that (1) the company is liable for the seller’s 

conduct, (2) the company knew of any unrepaired termite damage before the 

Holloways’ discovery of this damage; or (3) any remaining allegedly actionable 

conduct of the company caused the buyers damage. Accordingly, we reverse the 

trial court’s judgment against the real estate company and render judgment that the 

buyers take nothing against the real estate company. Because the trial court did not 

err in granting summary judgment, we affirm the trial court’s judgment in the 

severed case.
3

I. FACTUAL AND PROCEDURAL BACKGROUND

Shawn and Stephanie Holloway decided to move from their home in 

Summerwood to Kingwood in the Spring of 2009. To assist them in selling their 

home and purchasing a new one, they enlisted the help of Jeremy Williams 

(hereinafter “Williams”), a licensed real estate salesperson associated with Flutobo, 

Inc. d/b/a Keller Williams Realty Northeast, a licensed real estate broker 

(hereinafter “Keller Williams”).1 As to Williams’s services regarding their efforts 

to purchase a house, the Holloways and Williams had an oral contract.

In April 2009, the Holloways were progressing towards closing on the sale 

of their home and purchasing a property in Kingwood (hereinafter “the River Falls 

House”). The Holloways entered into a contract to buy the River Falls House. 

Williams recommended two inspection companies for use in inspecting the River 

Falls House. The Holloways selected one of them, Clint Simon d/b/a Sherlock 

Pest & Sherlock Spec (hereinafter “Simon”), who performed both the home 

inspection and termite inspection on the River Falls House. After these inspections 

were performed, the Holloways decided not to buy the River Falls House and 

exercised their right to terminate the contract.

Around the same time as the Holloways were deciding not to buy the River 

Falls House, Williams learned that Jennifer Blalock, another licensed real estate 

salesperson associated with Keller Williams, was planning to sell the Kingwood 

house in which she lived.2 Before Blalock listed her home for sale, she let 

Williams know that she was trying to sell her house. Williams sent the Holloways 

 

1

People often use the term “real estate agent” to refer to a licensed real estate salesperson or a 

licensed real estate broker who represents a buyer or a seller of real estate. In this opinion, we 

use the terms “broker” and “salesperson,” which correspond to the terminology used in 

applicable statutes. See Tex. Occ. Code Ann. 1101.002(1),(7) (West 2013).

2 At the time of the occurrence made the basis of this suit her name was Jennifer Blalock. Her 

name is now Jennifer Snyder.
4

an email with information about the house Blalock wanted to sell (hereinafter the 

“Property”). Two days later, Williams showed the Property to the Holloways with 

Blalock present. The Holloways decided they were interested in the Property and 

wanted to make an offer to buy it. According to Shawn Holloway, Williams told 

them while they were looking at the Property that if the Holloways liked the 

Property they needed to act “pretty quickly” and that Blalock had told Williams 

that she had “three or four people already lined up to see the house.”

Because Keller Williams had a policy that a real estate salesperson 

associated with Keller Williams could not serve as the salesperson associated with 

Keller Williams on the listing of the salesperson’s own house for sale, in 

documents related to this transaction, Tina Martin, a real estate salesperson 

associated with Keller Williams, was designated as the salesperson associated with 

the listing broker, Keller Williams. Williams sent the Holloways an “Intermediary 

Relationship Notice” confirming that Keller Williams was serving as both the 

buyer’s agent for the Holloways and the seller’s agent for Blalock. According to 

this notice, Keller Williams appointed Martin as the salesperson to communicate 

with Blalock, carry out Blalock’s instructions, and provide opinions and advice to 

Blalock during negotiations, and Keller Williams appointed Williams as the 

salesperson to perform the same services for the Holloways. Nonetheless, 

Williams testified that he negotiated directly with Blalock and that he 

communicated with Martin “very little” regarding this transaction. 

Blalock provided the Holloways with a “Seller’s Disclosure Notice,” in 

which Blalock stated that she was not aware of (1) active infestation of termites or 

other wood destroying insects, (2) previous termite or wood-destroying-insect 

“damage repaired,” or (3) termite or wood-destroying-insect damage needing 

repair. Blalock disclosed that she was aware of previous treatment for termites or 

wood destroying insects. The Holloways soon entered into a contract for sale of 
5

the Property. The contract reflected that Keller Williams was a broker serving as 

both buyer’s agent and seller’s agent, that the salesperson associated with Keller 

Williams regarding the Holloways was Williams, and that the salesperson 

associated with Keller Williams regarding Blalock was Martin. The Holloways 

had a ten-day period during which they could terminate the contract, thus allowing 

them time to inspect the Property. 

The Holloways hired Simon to perform both the home inspection and the 

termite inspection of the Property. Simon had a scheduling problem and did not 

perform the home inspection, but he did perform the termite inspection. Before 

Simon performed the inspection, Shawn Holloway instructed Williams to give 

Simon a copy of Blalock’s Seller’s Disclosure Notice. Williams did not do so. In 

his report, Simon stated that his inspection revealed no visible evidence of an 

active infestation or a previous infestation of termites or wood destroying insects in 

or on the structure. Simon also stated that his inspection revealed visible evidence 

in or on the structure of previous treatment for subterranean termites, but not such 

evidence of previous treatment for other types of termites or wood destroying 

insects.

The Holloways did not exercise their option to terminate the contract and 

closed on the purchase of the Property. Neither Keller Williams nor Martin 

received any commission regarding Martin’s services for Blalock. Keller Williams 

and Williams received a commission regarding Williams’s services for the 

Holloways. Soon after the closing, the Holloways hired contractors to start some 

renovations to the Property. The contractors discovered extensive termite damage, 

substantial enough to cause the Holloways to move out of the newly purchased 

home. 

The Holloways filed suit asserting various claims against Blalock, Simon, 
6

and Keller Williams. The Holloways filed a separate lawsuit in which they 

asserted various claims against Judy Hopkins, the real estate broker designated by

Keller Williams as its agent for purposes of the Texas Real Estate License Act. 

This lawsuit was consolidated in the trial court with the Holloways’ lawsuit against 

Blalock, Simon, and Keller Williams. During discovery, Keller Williams 

produced a Seller’s Disclosure Notice from the sale of the Property to Blalock

(hereinafter the “Mackey Disclosure”); the person at Keller Williams who was 

involved in that sale was not involved in the Holloways’ purchase of the Property

from Blalock. In the Mackey Disclosure, the previous owners disclosed to Blalock 

that they were aware of previous treatment for termites or other wood-destroying 

insects and of previous damage repaired. The previous owners stated that termite 

treatment had been done before 1993 and that treatment and small repairs were 

done in approximately 1995. The prior owners stated that they were not aware of 

any active infestation or damage needing repair.

Before trial the Holloways settled their claims against Simon for $200,000. 

The trial court severed the claims against Blalock after she filed for bankruptcy 

protection. The trial court granted summary judgment in favor of Hopkins and 

severed these claims to make the judgment final. In the trial of the claims against 

Keller Williams, the jury found liability against Keller Williams based on claims 

for breach of contract, breach of fiduciary duty, violations of the Texas Deceptive 

Trade Practices Consumer Protection Action (“DTPA”), common-law fraud, and 

statutory fraud. In response to Question 11, the jury made actual damage findings 

as to all of the Holloways’ claims. In response to Question 12, the jury made 

findings regarding mental anguish damages as to the Holloways’ DTPA claims. 

After a bench trial regarding attorney’s fees, the trial court rendered judgment 

based upon the jury’s verdict and its attorney’s fees findings. The Holloways 

elected to recover based upon their breach-of-contract claim. The trial court 
7

rendered judgment awarding the Holloways’ actual damages, prejudgment interest, 

and trial and appellate attorney’s fees. 

Keller Williams has appealed from the adverse judgment, and the Holloways 

have appealed from the trial court’s summary judgment in favor of Hopkins in the 

severed case. We have consolidated these appeals and address both in this 

opinion.3

II. ISSUES PRESENTED ON APPEAL

On appeal, Keller Williams argues that the evidence is legally and factually 

insufficient to support several jury findings regarding the Holloways’ breach-ofcontract claim, including the finding that Keller Williams’s breach of contract 

proximately caused damage to the Holloways. Keller Williams also challenges the 

other claims that were not made a basis of the trial court’s judgment but that might 

be elected as a basis for recovery under the Boyce Iron Works case.

4

 See Boyce 

Iron Works, Inc. v. Southwestern Bell Telephone Co., 747 S.W.2d 785, 787 (Tex. 

1988) (“When the jury returns favorable findings on two or more alternative 

theories, the prevailing party need not formally waive the alternative findings. That 

party may seek recovery under an alternative theory if the judgment is reversed on 

appeal”). Keller Williams asserts that the evidence is legally insufficient to 

 

3

In Cause No. 14-12-00104-CV, Keller Williams is the appellant/defendant and the Holloways 

are the appellees/plaintiffs. In Cause No. 14-12-00170-CV, the Holloways are the 

appellants/plaintiffs and Hopkins is the appellee/defendant.

4

If, on original submission, a plaintiff bringing an appeal briefs issues relating to the plaintiff’s 

election of alternative theories of recovery under the Boyce Iron Works case, this court may 

address these issues on original submission. See Hatfield v. Solomon, 316 S.W.3d 50, 60 n.3 

(Tex. App.—Houston [14th Dist.] 2010, no pet.) (stating that a Boyce Iron Works election of 

alternative theory of recovery may be addressed on original submission if briefed by the parties). 

The parties have briefed issues regarding the Holloways’ other claims, and we have decided to 

address these issues on original submission. See Hatfield, 316 S.W.3d at 60 n.3.
8

support the jury’s finding that the company’s actionable conduct proximately 

caused the Holloways’ damages. Keller Williams asserts various legal and factual 

insufficiency challenges to the jury findings regarding the Holloways’ claims. 

Keller Williams also asserts other issues in which it challenges the trial court’s 

failure to apply a settlement credit, several of the actual damage awards, and the

trial court’s award of attorney’s fees. 

In their appeal, the Holloways assert that the trial court erred in granting 

summary judgment because Hopkins did not establish that as a matter of law she 

has no liability for the acts of Williams, Blalock, or Keller Williams and because 

the Holloways raised fact issues regarding their claims against Hopkins.

III. STANDARDS OF REVIEW

When reviewing the legal sufficiency of the evidence, we consider the 

evidence in the light most favorable to the challenged finding and indulge every 

reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 

802, 823 (Tex. 2005). We must credit favorable evidence if a reasonable factfinder 

could and disregard contrary evidence unless a reasonable factfinder could not. See 

id. at 827. We must determine whether the evidence at trial would enable 

reasonable and fair-minded people to find the facts at issue. See id. The factfinder 

is the only judge of witness credibility and the weight to give to testimony. See id.

at 819.

In a traditional motion for summary judgment, if the movant’s motion and 

summary-judgment evidence facially establish its right to judgment as a matter of 

law, the burden shifts to the nonmovant to raise a genuine, material fact issue 

sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v. 

Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In reviewing a no-evidence summary 

judgment, we ascertain whether the nonmovant pointed out summary-judgment 
9

evidence raising a genuine issue of fact as to the essential elements attacked in the 

no-evidence motion. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206–

08 (Tex. 2002). In our de novo review of a trial court’s summary judgment, we 

consider all the evidence in the light most favorable to the nonmovant, crediting 

evidence favorable to the nonmovant if reasonable jurors could, and disregarding 

contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 

206 S.W.3d 572, 582 (Tex. 2006). The evidence raises a genuine issue of fact if 

reasonable and fair-minded jurors could differ in their conclusions in light of all of 

the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 

S.W.3d 754, 755 (Tex. 2007). When, as in this case, the order granting summary 

judgment does not specify the grounds upon which the trial court relied, we must 

affirm the summary judgment if any of the independent summary-judgment 

grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 

868, 872 (Tex. 2000). 

IV. ANALYSIS

In analyzing Keller Williams’s appeal, we first address whether any 

actionable conduct by Blalock provides a basis for affirming the trial court’s 

judgment against Keller Williams. Then, we determine whether the evidence is 

legally sufficient to support a finding that Keller Williams knew of the unrepaired 

termite damage on the Property before the Holloways’ discovery of this damage. 

Having concluded that the answer to these questions is no, we finally address 

whether the evidence is legally sufficient to support the jury’s findings that the 

Holloways’ damages were caused by Keller Williams’s allegedly actionable 

conduct, except for any alleged liability for Blalock’s conduct and any alleged 

liability based upon Keller Williams’s knowledge of the unrepaired termite 

damage on the Property before the Holloways’ discovery of this damage. 
10

In analyzing the Holloways’ appeal, we first address whether Hopkins’s 

status as designated agent for Keller Williams as to its broker’s license makes her 

vicariously liable for any actionable conduct of Keller Williams’s salespersons or 

for the conduct of any agent of Keller Williams. We then address whether the 

Holloways have adequately briefed the remaining appellate issues. 

A. Is Keller Williams liable for Blalock’s conduct?

In the jury charge, the trial court submitted questions about Keller Williams, 

Blalock, and Simon separately. The trial court did not ask any separate questions 

regarding Williams or Martin. Nor did the trial court ask the jury to make any 

finding as to whether Keller Williams was liable for Blalock’s conduct. Keller 

Williams argues that, because the jury made no such finding, Keller Williams may 

not be held liable for Blalock’s conduct. We presume, without deciding, that (1) 

whether Keller Williams was liable for Blalock’s conduct was an element of the 

Holloways’ claims against Keller Williams; (2) there was no objection to the 

omission from the jury charge of a question on this issue; (3) no written finding 

was made by the trial court on that element; and (4) there is a deemed finding of 

this omitted element in such a manner as to support the trial court’s judgment. See

Service Corp. Int’l v. Guerra, 348 S.W.3d 221, 228–29 (Tex. 2011). But, even 

under this four-part presumption, for Keller Williams to be liable for Blalock’s 

conduct, there must be legally sufficient evidence to support such a deemed 

finding. See id.; Foley v. Capital One Bank, N.A., 383 S.W.3d 644, 648 (Tex. 

App.—Houston [14th Dist.] 2012, no pet.).

Under the unambiguous language of Blalock’s Independent Contractor 

Agreement with Keller Williams, which was admitted into evidence at trial, Keller 

Williams engaged Blalock as an independent contractor to perform services as a 

real estate salesperson. Absent actual or apparent authority, an agent cannot bind a 
11

principal. Huynh v. Nguyen, 180 S.W.3d 608, 622 (Tex. App.—Houston [14th 

Dist.] 2005, pet. denied). We presume for the sake of argument that the jury found 

that Blalock’s acts and omissions regarding the Property bound Keller Williams 

under either actual authority or apparent authority. Both actual and apparent 

authority are created through conduct of the principal communicated either to the 

agent (actual authority) or to a third party (apparent authority). Id. at 622–23. 

Actual authority denotes authority that the principal intentionally confers upon the 

agent, or intentionally allows the agent to believe he has, or by want of ordinary 

care allows the agent to believe himself to possess. Id. at 623. In determining 

whether apparent authority exists, the acts of the principal are examined to 

ascertain whether those acts would lead a reasonably prudent person using 

diligence and discretion to suppose the agent had the authority to act on behalf of 

the principal. Id. Only the conduct of the principal may be considered; 

representations made by the agent of his authority have no effect. Id. 

Furthermore, the principal either must have taken affirmative action to hold the 

agent out as possessing the authority or the principal knowingly and voluntarily 

must have permitted the agent to act in an unauthorized manner. Id. 

In the Real Estate License Act, the Texas Legislature defines a “broker” in 

pertinent part as “a person who, in exchange for a commission or other valuable 

consideration or with the expectation of receiving a commission or other valuable 

consideration, performs for another person one of the following acts: (i) sells, 

exchanges, purchases, or leases real estate; (ii) offers to sell, exchange, purchase, 

or lease real estate; (iii) negotiates or attempts to negotiate the listing, sale, 

exchange, purchase, or lease of real estate; (iv) lists or offers, attempts, or agrees to 

list real estate for sale, lease, or exchange . . . .” Tex. Occ. Code Ann. 1101.002(1) 

(emphasis added). The Texas Legislature defines a “salesperson” as “a person who 
12

is associated with a licensed broker for the purpose of performing an act described 

by [section 1101.002(1) of the Texas Occupations Code].” It is undisputed that 

Keller Williams, at all material times, was a licensed broker and that Blalock, at all 

material times, was a licensed real estate salesperson associated with Keller 

Williams for the purpose of performing acts described by section 1101.002(1) of 

the Texas Occupations Code. See Tex. Occ. Code Ann. 1101.002. 

But, owners of real property in Texas can sell their own property without 

being a licensed real estate broker. See id. §§1101.002, 1101.004, 1101.351. A 

person acts as a real estate broker if the person performs one or more specified 

services for another person. See Gamble v. Norton, 893 S.W.2d 129, 137 (Tex. 

App.—Houston [1st Dist.] 1995, no writ); Xarin Real Estate, Inc. v. Gamboa, 715 

S.W.2d 80, 84–85 (Tex. App.—Corpus Christi 1986, writ ref’d n.r.e.). Acts 

performed regarding the sale of one’s own property are not acts described by

section 1101.002(1) of the Texas Occupations Code. See Tex. Occ. Code Ann. § 

1101.002(1),(7); Gamble, 893 S.W.2d at 137; Xarin Real Estate, Inc., 715 S.W.2d 

at 84–85. Thus, a real estate salesperson does not associate with a licensed real 

estate broker for the purpose of performing such acts regarding the salesperson’s 

own property. See Tex. Occ. Code Ann. § 1101.002(1),(7); Gamble, 893 S.W.2d 

at 137; Xarin Real Estate, Inc., 715 S.W.2d at 84–85.

Under the unambiguous language of Blalock’s Independent Contractor 

Agreement, Keller Williams engaged Blalock as an independent contractor to 

perform services as a real estate salesperson. All of the documents regarding 

Blalock’s sale of the Property to the Holloways reflect that Blalock is the owner of 

the Property; they do not reflect that she is acting as a real estate salesperson or 

broker on behalf of the seller. Keller Williams was the broker for both Blalock as 

the seller and the Holloways as the buyers. Keller Williams appointed Williams as 
13

the salesperson associated with Keller Williams regarding the services for the 

Holloways and Martin as the salesperson associated with Keller Williams 

regarding the services for Blalock. 

There was evidence at trial that Williams negotiated directly with Blalock 

and that he communicated with Martin “very little” regarding this transaction. The 

Holloways argue that, although Martin was shown as Blalock’s listing agent and 

the salesperson appointed by Keller Williams to provide services to Blalock as the 

seller, Blalock effectively represented herself in the transaction. Presuming that 

Blalock offered the Property for sale, negotiated the sale of the Property, and sold 

the Property for herself, she did not do so “for another person.” See Tex. Occ. 

Code Ann. § 1101.002. Therefore, Blalock’s acts in doing so are not those of a 

real estate salesperson for the seller and were not within the scope of Blalock’s 

agreement with Keller Williams.5 

The Holloways emphasize the testimony of Judy Hopkins, the broker 

designated by Keller Williams as its agent for purposes of the Texas Real Estate 

License Act and one of the shareholders of Keller Williams. According to the 

Holloways, in this testimony, Hopkins agreed that Keller Williams authorized all 

of Blalock’s conduct and all of this conduct was within the scope of her work as a 

salesperson associated with Keller Williams. The Holloways assert that Hopkins’s 

testimony raises a fact issue as to whether Keller Williams is responsible for 

Blalock’s conduct. 

 

5 The Holloways assert that Keller Williams is liable for Blalock’s conduct under section 

1101.803 of the Texas Occupations Code, which states that “[a] licensed broker is liable to the 

commission, the public, and the broker's clients for any conduct engaged in under this chapter by 

the broker or by a salesperson associated with or acting for the broker.” Tex. Occ. Code Ann. § 

1101.002 (West 2013). But, as to a salesperson’s conduct, this statute is limited in scope to

conduct engaged in under Chapter 1101 by a salesperson associated with or acting for the broker. 

See id. 
14

Hopkins testified in pertinent part that (1) Keller Williams is responsible for 

everything Williams does while Williams is wearing his “real estate hat” and 

performing acts authorized by Keller Williams; (2) Blalock was authorized to give 

a “pocket listing” to Williams to pass on to the Holloways; (3) Blalock was not 

authorized to sell her home acting as the listing agent; (4) Blalock was authorized 

to sell her home as the seller; (5) Keller Williams has a policy that Keller Williams 

salespersons cannot sell their own homes through Keller Williams without a person 

other than the owner serving as the salesperson associated with the listing agent; 

(6) this policy did not prohibit salespersons from acting as sellers of their own 

property; (7) Blalock did not perform any acts that were not authorized by Keller 

Williams; she was allowed to sell her home; (8) as far as Hopkins knows, 

everything Blalock did she was authorized to do by Keller Williams; and (9) no 

person from Keller Williams was going to testify at trial that Blalock’s acts were 

not authorized by Keller Williams. In context, we conclude that under the familiar 

legal-sufficiency standard of review, this evidence would not enable reasonable 

and fair-minded people to find that Blalock’s acts were within the scope of her 

service as a Keller Williams salesperson. Rather, in this testimony, Hopkins 

indicated that, according to a policy of Keller Williams, Blalock could not serve as 

the salesperson associated with Keller Williams as listing agent, and that, despite 

this policy, Blalock was allowed to sell her own property with Keller Williams as 

the listing agent and seller’s agent. It is not reasonable to find that this testimony 

shows that Blalock’s actions in selling the Property were undertaken as a Keller 

Williams salesperson. Hopkins testified that Keller Williams authorized Blalock to 

sell her own property through Keller Williams, not that Keller Williams authorized 

Blalock to work as a Keller Williams salesperson on this transaction.

The Holloways also assert that Keller Williams is liable for Blalock’s 
15

conduct under two regulations from the Texas Administrative Code. See 22 Tex. 

Admin. Code § 535.2(a) (2003) (“[A] broker is responsible for the authorized acts 

of the broker’s salespersons, but the broker is not required to supervise the 

salespersons directly. If a broker permits a sponsored salesperson to conduct 

activities beyond the scope explicitly authorized by the broker, those too will be 

deemed to be authorized acts for which the broker is responsible.”); 22 Tex. 

Admin. Code § 535.141(c) (2008) (“[a] real estate broker is responsible for all acts 

and conduct performed by a real estate salesperson associated with or acting for the 

broker.”). One regulation is in a subchapter entitled “General Provisions Relating 

to the Requirements of Licensure,” and the other regulation is in a subchapter 

entitled “Suspension and Revocation of Licensure.” See 22 Tex. Admin. Code § 

535.2(a); 22 Tex. Admin. Code § 535.141(c). 

As explained above, there is legally insufficient evidence that Blalock was 

acting as a salesperson in this transaction. Yet, even if these regulations could be 

interpreted to cover her acts as an owner, the parties have not cited and research 

has not revealed any cases addressing whether these regulations provide legal 

standards that apply in claims by private plaintiffs seeking monetary damages. If 

these regulations provided a standard for such claims, that standard would conflict 

with applicable precedent regarding actual and apparent authority. See Gaines v. 

Kelly, 235 S.W.3d 179, 182–85 (Tex. 2007). For violations of these regulations,

the Texas Real Estate Commission may suspend or revoke a license, assess 

administrative penalties, or take other disciplinary action. See 22 Tex. Admin. 

Code § 535.191. The mere fact that an administrative agency promulgates a rule 

or regulation does not require the courts to accept it as a standard for civil liability. 

See Hicks v. Humble Oil & Refining Co., 970 S.W.2d 90, 94 (Tex. App.—Houston 

[14th Dist.] 1998, pet. denied). Courts in civil cases must decide whether to adopt 
16

an administrative rule or regulation as a standard for determining civil liability. 

See id. at 94–95. We decline to adopt the standards in these administrative 

regulations for use in determining the civil liability of litigants in damage claims. 

After reviewing all of the trial evidence under the applicable standard of 

review, we conclude that the trial evidence is legally insufficient to support a 

finding of conduct by Keller Williams that would make Blalock’s knowledge, acts, 

or omissions binding on Keller Williams based on either actual authority or 

apparent authority. See Gaines, 235 S.W.3d at 182–85; Huynh, 180 S.W.3d at 

622–23. Likewise, we conclude the evidence is legally insufficient to support a 

finding that Blalock’s conduct was within the scope of her work as a Keller 

Williams salesperson or that Keller Williams is liable for Blalock’s conduct. See 

Gaines, 235 S.W.3d at 182–85; Huynh, 180 S.W.3d at 622–23. Accordingly, any 

actionable conduct by Blalock does not provide a basis for affirming the trial 

court’s judgment against Keller Williams. See Service Corp. Int’l, 348 S.W.3d at 

229–31; Huynh, 180 S.W.3d at 622–23. 

B. Is the evidence legally sufficient to support a finding that Keller 

Williams knew of the unrepaired termite damage on the Property?

The Holloways do not assert on appeal that Williams or Martin—the Keller 

Williams salespersons for this transaction—knew of the unrepaired termite damage 

on the Property before the Holloways’ discovery of this damage. In the Mackey 

Disclosure, the previous owners revealed to Blalock that they were aware of 

previous treatment for termites or other wood-destroying insects and of previous 

damage repaired. The previous owners stated that termite treatment had been done 

before 1993 and that treatment and small repairs were done in approximately 1995. 

The previous owners stated that they were not aware of any active infestation or 

any damage needing repair. Even if Williams or Martin had been aware of the 
17

Mackey Disclosure, or even if Keller Williams itself were charged with knowledge 

of the disclosure because the document was preserved in a file on a prior sale (an 

issue we need not decide), that disclosure did not state that there was any existing 

termite damage on the Property in 2002 (when Blalock bought the Property), or in 

2009 (when she sold it to the Holloways).

6

 

As to Williams, Martin, and any other Keller Williams broker or salesperson 

involved in that capacity in the sale to the Holloways, after reviewing the trial 

evidence under the applicable standard of review, we conclude that the evidence is 

legally insufficient to support a finding that any of these people knew of the 

unrepaired termite damage in the house on the Property before the Holloways’ 

discovery of this damage. See Pfeiffer v. Ebby Halliday Real Estate, Inc., 747 

S.W.2d 887, 889–91 (Tex. App.—Dallas 1988, no writ). Thus, the evidence is 

legally insufficient to support a finding that Keller Williams knew of the 

unrepaired termite damage on the Property before the Holloways’ discovery of this

damage. See id.

C. Is the evidence legally sufficient to support the jury’s findings that the 

Holloways’ damages were caused by the remaining actionable conduct 

of Keller Williams?

Except for Question 12 regarding mental anguish damages for the DTPA 

claim, the trial court submitted a single actual damages question (Question 11) for 

all of the Holloways’ claims that were submitted to the jury. In Question 11, the 

trial court asked the jury what sum of money, if paid now in cash, would fairly and 

 

6 Keller Williams and amici curiae Texas Association of Realtors and Houston Association of 

Realtors assert that Keller Williams had no duty to make known to the Holloways the Mackey 

Disclosure because no Keller Williams broker or sales representatives involved in this 

transaction knew of the existence of the Mackey Disclosure. We need not and do not address 

this issue, nor do we decide whether, as to the Holloways’ claims, Keller Williams is charged 

with knowledge of the Mackey Disclosure.
18

reasonably compensate the Holloways for their damages, if any, that were 

proximately caused by the conduct found by the jury in its responses to the liability 

questions. The trial court instructed the jury as follows:

“Proximate cause” means that cause which, in a natural and 

continuous sequence, produces an event, and without which cause 

such event would not have occurred. In order to be a proximate 

cause, the act or omission complained of must be such that a person 

using the degree of care required of him would have foreseen that the 

event, or some similar event, might reasonably result therefrom. There 

may be more than one proximate cause of an event. 

At the charge conference, no party objected to the form of this damages question. 

Therefore, this court measures the sufficiency of the evidence using the charge 

given, regardless of whether the charge accurately reflects Texas law. See 

Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (holding that appellate court 

could not review the sufficiency of the evidence based on a particular legal 

standard because that standard was not submitted to the jury and no party objected 

to the charge on this ground or requested that the jury be charged using this 

standard); Hirschfeld Steel Co. v. Kellogg Brown & Root, Inc., 201 S.W.3d 272, 

283–86 (Tex. App.—Houston [14th Dist.] 2006, no. pet.) (reviewing sufficiency of 

evidence based on unobjected-to jury instruction and rejecting various arguments 

based on different legal standards). All of the elements of damages submitted in

Question 11 are based on damages the Holloways sustained as a result of their 

purchase of the Property with termite damage.

In response to Question 12 the jury found the amount of money that would 

fairly and reasonably compensate the Holloways for their past and future mental 

anguish that resulted from Keller Williams’s allegedly actionable conduct. At the 

charge conference, no party voiced any objection to the form of this damages 

question. Thus, we measure the sufficiency of the evidence according to the 
19

charge the trial court gave, regardless of whether that charge is a fair reflection of 

Texas law. See Osterberg, 12 S.W.3d at 55; Hirschfeld Steel Co., 201 S.W.3d at 

283–86. The testimony regarding the Holloways’ mental anguish is based upon 

the mental anguish they suffered as a result of buying the Property with termite 

damage.

We presume, without deciding, that, except for the bases for liability 

addressed in subsections A and B, above, the actionable conduct of Keller 

Williams found by the jury is a basis for liability, and we focus on the evidence 

that this actionable conduct caused the Holloways the damages found by the jury, 

all of which are based upon the Holloways’ purchase of the Property with termite 

damage.

The Holloways complain of Keller Williams’s failure to make known to 

them the Mackey Disclosure from the 2002 sale of the Property to Blalock.7 In the 

Mackey Disclosure, the previous owners revealed to Blalock that they were aware 

of previous treatment for termites or other wood-destroying insects and of previous 

damage repaired. The previous owners stated that they were not aware of any 

active infestation or any damage needing repair but that termite treatment had been 

done before 1993, and that treatment and small repairs were done in approximately 

1995. 

There is no evidence that the failure to give the Holloways the Mackey

Disclosure caused their damages. The Mackey Disclosure reflects termite 

treatment and minor repairs of termite damage in 1995, fourteen years before the 

Holloways bought the house, as well as termite treatment before 1993. The record 

contains no trial evidence that the termite infestation that caused the damage 

 

7 As stated above, we need not and do not address whether Keller Williams had a duty to make 

known the Mackey Disclosure to the Holloways. 
20

repaired in 1995 also caused the damage the Holloways discovered in 2009. 

Though Shawn Holloway testified he would have liked to have known the 

information in the Mackey Disclosure and that he would not have ignored the 

information in that disclosure, he did not testify that the Holloways would not have 

bought the Property had they been aware of this information. Nor did Stephanie 

Holloway provide any such testimony. On termite issues, the Holloways relied 

upon the work of Simon, who testified that he did not see any termite damage 

during his inspection of the Property and that knowledge of prior repairs for 

termite damage would not have affected the termite inspection he performed on the 

Property, though he would have mentioned the prior repairs in his report. 

The Holloways also complain of Williams’s alleged failure to follow a 

Keller Williams policy to provide the Holloways with the names of three different 

inspectors. Simon performed the home inspection and termite inspection for the 

Holloways regarding the River Falls House. The record contains evidence that the 

Holloways wanted Simon to perform the termite inspection on the Property, even 

though he had a scheduling conflict and Williams offered to provide the Holloways 

with the name of another inspector. Even if the jury did not credit this testimony, 

there was no trial evidence from which a reasonable jury could find that, if 

Williams had given the Holloways the names of two other inspectors along with 

Simon’s name, the Holloways’s purchase of the termite-damaged house would not 

have occurred.

The Holloways also asserted that (1) contrary to their instructions, Williams 

failed to forward Blalock’s disclosure notice to Simon before Simon conducted the 

termite inspection; (2) Martin failed to provide services that normally would be 

provided by the salesperson associated with the listing agent or the seller’s agent 

and thus there was one fewer “set of eyes” reviewing the transaction; (3) Williams 
21

incorrectly indicated in the Intermediary Relationship Notice that Martin was the 

salesperson associated with Keller Williams who would be providing services to 

Blalock, when at the time Williams drafted this document, Martin had not signed 

the listing agreement; and (4) Williams falsely informed the Holloways that 

Blalock had told him there were three or four other potential buyers already 

waiting to see the Property. Presuming that Martin and Williams engaged in this 

conduct, there was no trial evidence from which a reasonable jury could find that, 

but for this conduct, the Holloways would not have purchased the termite-damaged 

house.

We presume, without deciding, that, except for the bases for liability 

addressed in subsections A and B, above, the allegedly actionable conduct of 

Keller Williams is a basis for liability. Even under this presumption, a review of 

the trial evidence under the applicable standard of review shows that the evidence 

is legally insufficient to support a finding that without this conduct, the Holloways 

would not have purchased the termite-damaged house. See Voye v. Ragan, 616 

S.W.2d 673, 675 (Tex. Civ. App.—Corpus Christi 1981, no writ) (holding the 

evidence was legally insufficient to show that allegedly actionable conduct of real 

estate agents caused damages of buyers who bought building with termite 

damage). Thus, the evidence is legally insufficient to show causation as to the

remaining actionable conduct of Keller Williams. See id. 

For the foregoing reasons, the evidence is legally insufficient to support a 

recovery by the Holloways against Keller Williams on any of their claims that 

were submitted to the jury. Accordingly, in Cause No. 14-12-00104-CV, we 

reverse the trial court’s judgment and render judgment that the Holloways take 
22

nothing.8 

D. Did the trial court err in granting Hopkins’s motion for summary 

judgment?

In the Holloways’ appeal, they assert in two issues that the trial court erred 

in granting Hopkins’s motion for traditional and no-evidence summary judgment. 

This appeal involves statutory-interpretation issues. We review the trial court’s 

interpretation of applicable statutes de novo. See Johnson v. City of Fort Worth, 

774 S.W.2d 653, 655B56 (Tex. 1989). In construing a statute, our objective is to 

determine and give effect to the Legislature’s intent. See Nat’l Liab. & Fire Ins. 

Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). If possible, we must ascertain that 

intent from the language the Legislature used in the statute and not look to 

extraneous matters for an intent the statute does not state. Id. If the meaning of the 

statutory language is unambiguous, we adopt the interpretation supported by the 

plain meaning of the provision's words. St. Luke’s Episcopal Hosp. v. Agbor, 952 

S.W.2d 503, 505 (Tex. 1997). We must not engage in forced or strained 

construction; instead, we must yield to the plain sense of the words the Legislature 

chose. See id.

A corporate entity may be licensed as a real estate broker. See Tex. Occ. 

Code Ann. §§ 1101.002(1), 1101.355. For a corporate entity to act as a licensed 

broker, the entity must designate one of its managing officers as its agent for 

purposes of the Texas Real Estate License Act, and that officer must be a licensed 

broker in active status and good standing according to the commission’s records. 

See id. § 1101.002(1), 1101.351, 1101.355. The summary-judgment evidence 

conclusively proves that Keller Williams, a corporation, is a licensed broker and 

that it has designated Hopkins, a licensed broker, as its agent for purposes of the 

 

8We need not and do not address Keller Williams’s various other appellate arguments.
23

Texas Real Estate License Act.

A licensed real estate salesperson must be associated with a licensed broker.

See id. § 1101.002(7), 1101.351(c). The summary-judgment evidence proves as a 

matter of law that Williams, Blalock, and Martin all are licensed real estate 

salespersons who—to the extent they were acting as licensed real estate 

salespersons—were associated with licensed broker Keller Williams at all material 

times. The Holloways assert that Hopkins, as designated agent for Keller Williams 

as to its broker’s license, is vicariously liable for the conduct of all of the 

salespersons associated with Keller Williams. The Holloways base this assertion 

on various grounds.

First, the Holloways point to two regulations from the Texas Administrative 

Code. See 22 Tex. Admin. Code § 535.2(a) (2003); 22 Tex. Admin. Code § 

535.141(c) (2008). But, we already have concluded that these regulations do not 

create liability for brokers in claims by private litigants, so these regulations are 

not a basis for liability.9 

The Holloways also rely upon section 1101.803 of the Texas Occupations 

Code, entitled “General Liability of Broker,” which states that “[a] licensed broker 

is liable to the commission, the public, and the broker’s clients for any conduct 

engaged in under this chapter by the broker or by a salesperson associated with or 

acting for the broker.” Tex. Occ. Code Ann. § 1101.002 (West 2013). But, as to a 

salesperson’s conduct, this statute is limited in scope to conduct engaged in under 

Chapter 1101 by a salesperson associated with or acting for the broker. See id. 

The summary-judgment evidence conclusively proves that at all material times 

 

9

In any event, these regulations address a “broker’s salespersons,” a “sponsored salesperson,” 

and “a real estate salesperson associated with or acting for the broker.” And, Williams, Blalock, 

and Martin are licensed real estate salespersons associated with and acting for Keller Williams. 

They are sponsored salespersons of Keller Williams, not of Hopkins. 
24

when Williams, Blalock, and Martin were acting as licensed real estate 

salespersons, they were licensed real estate salespersons associated with and acting 

for Keller Williams, not for Hopkins.

The Holloways also rely upon expert testimony that a designated agent for a 

corporate broker as to its broker’s license is vicariously liable for the conduct of all 

of the salespersons associated with the corporate broker. But, the testimony of an 

expert as to his opinion regarding the law is improper and does not bind the courts, 

nor does it preclude summary judgment under the proper legal standard, even if it 

is different from the standard espoused by the expert. See Anderson v. Snider, 808 

S.W.2d 54, 55 (Tex. 1991); Greenberg Traurig of New York, P.C. v. Moody, 161 

S.W.3d 56, 94 (Tex. App.—Houston [14th Dist.] 2004, no pet.). 

The Holloways argue that brokers and salespersons owe an “extraordinary 

fiduciary duty” to their clients, and therefore, the corporate veil should not protect 

Hopkins from liability. No case or statute cited by the Holloways supports the 

proposition that corporate veils should be ignored in all cases involving a broker’s 

fiduciary duty. We decline to so hold.

We conclude that, as a matter of law, Hopkins’s status as the broker 

designated by Keller Williams as its agent for purposes of the Texas Real Estate 

License Act does not make her vicariously liable for any actionable conduct of 

Keller Williams’s salespersons or agents. To the extent that the Holloways seek to 

hold Hopkins vicariously liable for such conduct based upon this status (hereinafter 

“Designated Agent Theory”), the trial court did not err in granting summary 

judgment.

To the extent that the Holloways seek to hold Hopkins liable based upon a 

vicarious-liability theory other than the Designated Agent Theory or based upon 

direct liability for her own conduct, we conclude that the Holloways have not 
25

adequately briefed these issues on appeal. In its no-evidence motion for summary 

judgment, Keller Williams attacked each of the essential elements of the 

Holloways’ claims against Hopkins for negligence, negligent misrepresentation, 

common-law fraud, statutory fraud, breach of contract, breach of fiduciary duty, 

and DTPA violations. On appeal, the Holloways are required to attack each of 

these no-evidence grounds. In their appellants’ brief, as to at least one element of 

each of their claims, they have failed to provide any argument, analysis, or 

citations showing how the summary-judgment evidence raised a fact issue on this 

element of the claim against Hopkins based upon direct liability for her own 

conduct or based upon a vicarious-liability theory other than the Designated Agent 

Theory. Even construing the Holloways’ brief liberally, we cannot conclude they

have adequately briefed these issues. See San Saba Energy, L.P. v. Crawford, 171 

S.W.3d 323, 337 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Thus, the trial 

court did not err in granting summary judgment as to the Holloways’ claims 

against Hopkins based upon direct liability for her own conduct or based upon a 

vicarious-liability theory other than the Designated Agent Theory. See Fish v. 

Marsters, Co., No. 14-06-00129-CV, 2007 WL 1438555, at *5 (Tex. App.—

Houston [14th Dist.] May 17, 2007, pet. denied) (mem.op.) (affirming summary 

judgment regarding claims for which appellant failed to present argument attacking 

all of the independent summary-judgment grounds).10 

 

10 In any event, even if the Holloways had briefed all of these issues, we still would affirm the 

trial court’s summary judgment.
26

In Cause No. 14-12-00170-CV, we overrule the Holloways’ appellate issues 

and affirm the trial court’s summary judgment in favor of Hopkins. 

/s/ Kem Thompson Frost

Chief Justice

Panel consists of Chief Justice Kem Thompson Frost, Justice Jeffrey Brown, and 

Justice J. Brett Busby. (Justice Jeffrey Brown not participating).11

 

11 After oral argument in this case but before the court issued this opinion, Justice Jeffrey Brown 

was appointed to the Supreme Court of Texas and is no longer a justice on the Fourteenth Court

of Appeals. The remaining two justices have decided the case. See Tex. R. App. P. 41.1(b).