REVERSE and RENDER; and Opinion Filed April 9, 2019.

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-17-01028-CV

EBBY HALLIDAY REAL ESTATE, INC., Appellant

V.

KEVIN DUGAS, Appellee

On Appeal from the County Court at Law No. 3

Dallas County, Texas

Trial Court Cause No. CC-15-04871-C

MEMORANDUM OPINION

Before Justices Brown, Schenck, and Pedersen, III

Opinion by Justice Pedersen, III

This appeal arises from the sale of a condominium unit. The buyer, Kevin Dugas, claims 

the seller’s agent, Ebby Halliday Real Estate, Inc. (Ebby), misrepresented the property’s square 

footage. Ebby appeals a jury verdict awarding Dugas damages. Among other issues, Ebby 

challenges the legal sufficiency of the evidence to support the jury’s finding that Ebby made a 

false representation. We conclude the evidence is legally insufficient to support the jury’s finding.

We therefore reverse and render.

BACKGROUND

The seller, Elizabeth McLarry, retained Ebby to put her condominium unit on the market. 

Karen Estes, a salesperson employed by Ebby, listed the property on the Multiple Listing Service 
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(MLS).1 The MLS database contains a drop-down menu from which the listing agent can select 

“appraisal,” “builder,” “tax,” or “other” as the source of the subject home’s square-footage 

information. Estes selected “tax” for the unit in question, as do most agents when listing properties.

Based on this selection, the MLS database accessed the unit’s square footage from Dallas Central 

Appraisal District (DCAD) records and uploaded this information into the MLS listing. The listing 

noted the property’s square footage as “1,178 / Tax.” The listing also contained a narrative field 

prepared by Estes in which she described the property as a “[d]arling 1,178 sq. ft.” unit. The 

foregoing descriptions were consistent with DCAD’s records, which list both the “[l]iving [a]rea” 

and the “[t]otal [a]rea” of the unit as 1,178 square feet. However, this is not the unit’s “livable” 

square footage. This number includes the balcony and garage.

Dugas’s agent, Lisa DeWaal, gave him a copy of the MLS listing. Dugas was a first time 

home buyer, and he relied on the listing’s description of the property’s square footage in deciding 

to make an offer to purchase the property. Dugas purchased the condominium in March 2015 for 

$130,000. Although a buyer’s lender typically requires an appraisal of the property, in this case 

Dugas borrowed the purchase money from his father. Thus, no appraisal was performed. After the 

transaction closed, Dugas measured the unit and discovered that its “livable” square footage—i.e., 

the interior climate-controlled space excluding the balcony and garage—was only 885 square feet.

In other words, the unit was approximately twenty-five percent smaller than Dugas had understood 

it to be. 

Dugas sued Ebby and Estes and asserted claims for (i) violations of the Deceptive Trade 

Practices Act (DTPA), see TEX. BUS. & COM. CODE ANN. §§ 17.41–.63, (ii) statutory fraud, see

id. § 27.01, and (iii) negligent misrepresentation. Dugas also asserted a claim against Ebby for its 

 

1

It is undisputed that “[a]t all times relevant to the claims in this lawsuit,” Estes “was acting on behalf of and as an agent of [Ebby] and in 

the course and scope of her agency for [Ebby’s] benefit.”
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negligent supervision and training of Estes. The defendants generally denied Dugas’s claims, and 

they also pleaded section 17.506 of the Business Commerce Code. Id. § 17.506(a)(1)–(2). This 

section provides an affirmative defense to a DTPA claim if the defendant gave reasonably and 

timely written notice to the plaintiff of the defendant’s reliance on written information from official 

government records or other sources that, if false, the defendant did not know and could not 

reasonably have known of such falsity. Id.

Dugas’s DTPA and statutory fraud claims against Ebby were tried before a jury in April 

2017.2 At the conclusion of the trial, the jury found that Ebby engaged in false, misleading, or 

deceptive trade practices and committed statutory fraud. The jury awarded Dugas $32,335.48,

which is the amount that he claims he overpaid for the subject unit, plus additional sums for 

attorney’s fees. However, in response to Question 2 of the charge, the jury found for Ebby 

regarding its DTPA affirmative defense.

Following the jury’s verdict, Dugas filed a motion for entry of judgment and to disregard 

certain answers in the verdict. Ebby countered by filing a motion for judgment notwithstanding 

the verdict. On June 26, 2017, the court held a hearing on both motions. A little over a month later, 

on July 31, the court rendered judgment awarding Dugas $32,335.48, plus additional sums for 

attorney’s fees. The judgment also awarded Dugas pre- and post-judgment interest and costs. 

Moreover, the judgment stated the court had disregarded the jury’s answer to Question 2 because 

no evidence supported this answer. Ebby then filed this appeal.

 

2 Dugas’s negligent misrepresentation and negligent supervision and training claims were not submitted to the jury, nor were any of his claims 

against Estes. However, the court’s judgment, rendered on July 31, 2017, “finally dispose[d] of all parties and claims.” 
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ANALYSIS

I. Statutory Fraud

Ebby raises eight issues, two of which relate to Dugas’s DTPA claim, four of which relate 

to his statutory fraud claim, and two of which relate to other topics. It appears that the court’s 

judgment awarded damages to Dugas based on his statutory fraud claim.

3 Therefore, we will begin 

by considering Ebby’s issues related to Dugas’s fraud claim. Question 5 of the court’s charge asked 

whether Ebby “committed statutory fraud” against Dugas. According to the charge, statutory fraud 

occurs when, among other elements, “there is a false representation of a past or existing material 

fact.” See TEX. BUS. & COM. CODE ANN. § 27.01(a)(1) (providing statutory basis for the foregoing 

definition). The jury answered “yes” to Question 5. It also found, in response to Question 6, that 

Ebby was not actually aware that the subject representation was false. See id. § 27.01(c) (providing 

for exemplary damages if a defendant makes a false representation with actual awareness of such 

falsity). Ebby’s third issue challenges the legal sufficiency of the evidence to support the jury’s

finding that Ebby misrepresented the size of the condominium unit. 

To prevail on this issue, Ebby must demonstrate that no evidence supports the jury’s 

finding. Graham Central Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014) (per curiam).

“We will sustain a legal sufficiency challenge if the evidence offered to prove a vital fact is no 

more than a scintilla.” Id. (citation and internal quotation marks omitted). In conducting this 

analysis, “we credit evidence that supports the verdict if reasonable jurors could have done so and 

disregard contrary evidence unless reasonable jurors could not have done so.” Id. (citation and 

internal quotation marks omitted). We must determine “‘whether the evidence at trial would enable 

 

3

Specifically, the judgment did not reduce Dugas’s damages award despite the jury’s finding that Dugas was sixteen percent responsible for 

his damages and DeWaal was forty percent responsible for Dugas’s damages. The fact that Dugas’s damages were not reduced suggests that his 

statutory fraud claim was the basis for the judgment’s damages award. See LandAmerica Commonwealth Title Co. v. Wido, No. 05–14-00036-CV, 

2015 WL 6545685, at *11 (Tex. App.—Dallas Oct. 29, 2015, no pet.) (mem. op.) (“[P]roportionate responsibility does not apply to statutory 

fraud.”).
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reasonable and fair-minded people to reach the verdict under review.’” Id. (quoting City of Keller 

v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)).

As discussed previously, the MLS listing prepared by Estes referred to the subject unit as 

“1,178 / Tax.” Ebby contends this notation meant 1,178 square feet according to DCAD. It argues 

the MLS listing accurately reported the DCAD records’ description of the property’s size.

4 Dugas 

responds that a reasonable juror could have found that the term “/ Tax” either had no meaning or 

meant the amount of square footage on which the unit would be taxed—in other words, the unit’s 

“livable” square footage. In Dugas’s view, Ebby’s statement was false because in reality the unit 

had only 885 “livable” square feet. As support, he points to Estes’s testimony that the reference to 

1,178 square feet in Ebby’s listing (i) was intended to convey “livable” square feet and (ii) was 

false if the actual square footage was less.

A statutory fraud clam requires proof of a misrepresentation, not an omission. TEX. BUS.

& COM. CODE ANN. § 27.01(a); cf. Bradford v. Vento, 48 S.W.3d 749, 755 (Tex. 2001) (noting, as 

a general rule, that “[s]ilence may be equivalent to a false representation only when the particular 

circumstances impose a duty on the party to speak and he deliberately remains silent.”). We must 

focus on the actual language of the purported misrepresentation, i.e., “1,178 / Tax,” as opposed to 

what Ebby subjectively intended it to say. Cf. Great Am. Ins. Co. v. Primo, 512 S.W.3d 890, 893

(Tex. 2017) (“A contract’s plain language controls, not what one side or the other alleges they 

intended to say but did not.” (citation and internal quotation marks omitted)). In interpreting the 

term “/ Tax,” we may consider its commonly accepted meaning within the real estate industry. Cf.

RSUI Indem. Co. v. The Lynd Co., 466 S.W.3d 113, 121 n.1 (Tex. 2015) (stating same in context 

of construing undefined contract terms). However, the commonly accepted meaning “may not 

 

4 Ebby points to Dugas’s concession at trial that Ebby’s listing was not a misrepresentation if it were interpreted as simply reporting that 

DCAD records showed the property to be 1,178 square feet. Dugas also testified that, at the time of the subject transaction, he did not understand 

what “/ Tax” meant.
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apply when the language and its context demonstrate that the parties intended a different meaning.” 

Id.

A. What Was the Representation?

The evidence established that MLS listings can be accessed only by licensed real estate 

agents who are members of the MetroTex Association of Realtors, though a prospective 

homebuyer may obtain an individual listing from his or her agent or in an “open house.” Terri Cox, 

a retained expert for Ebby, testified that the term “/ Tax” is understood within the real estate 

industry to mean the source of the square footage information, which in this case was DCAD.

Likewise, both Estes and DeWaal understood “/ Tax” in the subject listing to mean that tax records 

were the source of the listing’s description of the unit’s size. In addition, both Estes and Cox 

testified that a home’s square footage is understood in the industry to mean its “livable” square 

feet. Based on this evidence, we interpret “1,178 / Tax” as a representation by Ebby that DCAD 

had reported the subject unit as 1,178 “livable” square feet. 

B. Was There a Misrepresentation?

We next consider whether there is legally sufficient evidence to support the jury’s finding 

that Ebby’s “1,178 / Tax” representation was false.

1. Affirmative misrepresentation

It is undisputed that the foregoing statement accurately reported what DCAD’s records 

said. Thus, the statement was false only if a reasonable juror could interpret it as independently 

verifying the subject unit’s “livable” square footage—i.e., that the unit was in fact 1,178 “livable”

square feet. As support for this position, Dugas notes that the narrative field in Ebby’s listing—

which referred to a “darling” 1,178 square foot unit—did not restate the “/ Tax” qualification that 

was set forth earlier in the listing. He urges that a reasonable juror could view the narrative

description as an affirmation by Ebby that the unit in fact contained 1,178 “livable” square feet.
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Consistent with this argument, Dugas testified that he assumed Estes had verified the unit’s square 

footage “if she was typing it herself.”

We disagree with Dugas’s contention, because it is inconsistent with the principle that 

documents should be read as a whole. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229

(Tex. 2003) (“No single provision taken alone will be given controlling effect; rather, all the 

provisions must be considered with reference to the whole instrument.”). The listing’s subsequent 

reference to a “darling” 1,178 square foot unit must be read in the context of its prior description 

of the unit as “1,178 / Tax.” Nor are we persuaded by Dugas’s argument that Ebby’s listing

misrepresented the unit’s price per-square-foot because such price was based on a calculation that 

erroneously included “non-livable” square feet. In light of the “/ Tax” representation discussed 

above, Ebby’s listing must be interpreted as representing the unit’s price per square foot based on 

the square footage reported by DCAD, i.e., 1,178 square feet. 

Dugas additionally argues that Ebby consistently claimed DCAD to be reliable even though

Ebby did not know whether DCAD’s records were accurate. He cites Boles v. Aldridge, in which 

the plaintiff sought to rescind a land exchange based upon the defendant’s purported 

misrepresentations that induced the exchange. 175 S.W. 1052, 1052 (Tex. 1915). The Texas 

Supreme Court held that the defendant positively affirmed the truthfulness of material information 

obtained from a third party who had been on the subject land, notwithstanding that the defendant 

also stated he had never personally seen the land. Id. In that case, the defendant said he knew the 

parties who had been upon the land, “they were perfectly reliable, and he would guaranty what 

they had told him.” Id. According to the Court, “[t]he positive representation as a fact of that which 

is untrue and concerning which a party has no knowledge is equivalent to an assertion that he 

knows it to be true, and, where material, is equally actionable with a statement known to be false.” 

Id. The Court reversed the court of appeals’ affirmation of an instructed verdict for the defendant 
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and remanded the case for trial on the question of whether the plaintiff relied on the defendant’s 

representations. Id. at 1053.

Unlike the representation in Boles, Ebby’s listing did not guarantee that DCAD’s records 

were accurate. To the contrary, the listing represented that Ebby’s source of information was

“Deemed Reliable But Not Guaranteed.”

5

(Emphasis added). As noted by the Boles court, “what 

one states to another merely as his information touching the subject of a transaction will not support 

an action for rescission, if such was in fact the information received, though in fact it was untrue.”

175 S.W. at1053 (emphasis added). Boles does not support Dugas’s contention that Ebby’s listing

vouched for the accuracy of DCAD’s records.

Dugas also cites First Title Co. of Waco v. Garrett, in which the Supreme Court stated that 

Texas law imposes a duty on a seller who makes an affirmative representation to know whether 

that statement is true. 860 S.W.2d 74, 76 (Tex. 1993). As explained above, Ebby’s “1,178 / Tax” 

representation relayed only that DCAD records had reported the subject unit as 1,178 “livable” 

square feet. Garrett does not support the proposition that Ebby owed a duty to verify whether these 

records were correct.

For each of these reasons, we conclude the evidence is legally insufficient to support a jury 

finding that Ebby made an affirmative misrepresentation.

B. Indirect misrepresentation

Dugas also urges that Ebby’s conduct amounted to a misrepresentation. He relies on 

Blanton v. Sherman Compress Co., in which this Court acknowledged that “‘a representation 

 

5 The phrase “deemed reliable but not guaranteed” appeared in Ebby’s listing on the same line as the copyright, which referred to “NTREIS” 

(also known as the North Texas Real Estate Information Systems, Inc.). Dugas cites section 16.07 of the MLS rules, which requires that the 

“[p]ublication or display of MLS data must include a notice indicating that the data is deemed reliable, but is not guaranteed accurate by the MLS 

or NTREIS.” (Emphasis added). Based on this provision, he appears to interpret the term “not guaranteed” in the subject listing as meaning only 

that the MLS and NTREIS had not guaranteed the listing’s source information, as opposed to an interpretation that Ebby had not guaranteed this 

information. We disagree with Dugas’s interpretation. Notwithstanding the MLS rules, the term “not guaranteed” in Ebby’s listing contains no 

qualification as to who was “not guarantee[ing]” the source information. Absent such a qualification, we construe Ebby’s listing as meaning that it 

was Ebby who deemed its source information to be “reliable but not guaranteed.” 
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literally true is actionable if used to create an impression substantially false.’” 256 S.W.2d 884, 

887 (Tex. App.—Dallas 1953, no writ) (quoting 37 C.J.S. Fraud, § 17). Stated another way, 

actionable fraud includes not only a “direct lie,” but also “a deceptive answer, or any other indirect 

but misleading language.” Id. (citation and internal quotation marks omitted).6

The terms “used to create” and “deceptive” in Blanton suggest an intent to deceive. See id. 

at 888 (“Recovery cannot be had for a true statement misunderstood without fault or design of the 

speaker.” (citation and internal quotation marks omitted)). Relevant to this point, Dugas notes that 

“[t]he presence . . . of a certain state of mind may be proved by circumstances” and that “[f]raud 

is deducible from artifice and concealment as well as from affirmative conduct of a character to 

deceive.” Campbell v. Booth, 526 S.W.2d 167, 169 (Tex. App.—Dallas 1975, writ ref’d n.r.e.) 

(citing, inter alia, Blanton, 256 S.W.2d at 887). He also urges that Ebby’s intent can be inferred 

from its refusal to change its business practices after becoming aware that DCAD had misstated 

the subject unit’s “livable” square footage. See Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 

434 (Tex. 1986) (“While a party’s intent is determined at the time the party made the 

representation, it may be inferred from the party’s subsequent acts after the representation is 

made.”).

Our decision in Blanton dealt with an indirect misrepresentation in the context of common 

law fraud.7 Assuming without deciding that a “false representation” under section 27.01(a) 

includes indirect misrepresentations, we must review all of the circumstantial evidence, including 

the competing inferences therefrom, to determine whether a reasonable juror could have found that 

 

6

See also Tex. Emp’t Comm’n v. Oliver, 691 S.W.2d 819, 821 (Tex. App.—Houston [1st Dist.] 1985, no writ) (“‘Misrepresentation’ means 

‘any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance 

with the facts.’” (quoting Black’s Law Dictionary 903 (5th ed. 1981) (emphasis added))); State Nat’l Bank of El Paso v. Farah Mfg. Co., 678 

S.W.2d 661, 681 (Tex. App.—El Paso 1984, writ dism’d by agr.) (“A representation that a maker knows to be capable of two interpretations, one 

of which he knows to be false and the other true is fraudulent if it is made: (a) with the intention that it be understood in the sense in which it is 

false, or (b) without any belief or expectation as to how it will be understood, or (c) with reckless indifference as to how it will be understood.”

(quoting RESTATEMENT (SECOND) OF TORTS § 527 (1977) (emphasis added))).

7

Section 27.01 was enacted in 1967, after Blanton was decided. Act of May 25, 1967, 60th Leg., R.S., ch. 785, § 1, sec. 27.01, 1968 Tex. 

Gen. Laws 2343, 2603, amended by Act of May 19, 1983, 68th Leg., ch. 949, §§ 1, 2, 1983 Tex. Gen. Laws 5208, 5208–09.
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Ebby’s “1,178 / Tax” representation, through literally true, was used by Ebby to create an 

impression that was substantially false. See City of Keller, 168 S.W.3d at 814 (“[W]hen the 

circumstantial evidence of a vital fact is meager, a reviewing court must consider not just favorable 

but all the circumstantial evidence, and competing inferences as well.”).

Turning to the record before us, MLS rules require the listing agent to “verify and confirm 

the accuracy of all information furnished to Other Participants and the public.” In addition, there 

was evidence at trial that DCAD information is often unreliable. Nevertheless, Ebby’s agents rely 

on DCAD as their source of square footage information,8 and they are not trained to search deed 

records to verify the “livable” square footage of the properties they list. Nor do agents typically 

hire an appraiser to measure a home. Moreover, while agents measure room dimensions when 

listing homes, and in this case Estes measured the dimensions of several of the subject unit’s 

rooms, Ebby trains its agents not to “ballpark” the total “livable” square footage of a home by 

adding up the individual room measurements.9

Based on this evidence, Dugas contends that a reasonable juror could infer that Ebby 

actively trained its agents to rely solely on DCAD so that Ebby would not have to change its 

listings by reducing the reported size of the properties that it advertised for sale. In Dugas’s view, 

the jury reasonably could have inferred that Ebby “turn[ed] a blind eye” to the inaccuracy of 

DCAD’s records so that Ebby could make a larger sales commission. Related to this point, Dugas

contends that the unit in question has a simple layout that can easily be measured. Dugas himself 

measured the unit after purchasing it and discovered its “livable” square footage to be 885 square 

feet.

 

8 Despite Ebby’s reliance on DCAD, Dugas notes that Estes did not know whether DCAD records were accurate. Moreover, Cox was not 

one-hundred percent certain from where DCAD obtained its square footage information.

9 Bases on Ebby’s listing regarding the subject unit, it is possible to calculate the square footage of each room that Ebby measured by 

multiplying the room’s length times its width. The sum total of the square footage of all of the rooms measured is 608 square feet.
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Based on our review of each piece of the circumstantial evidence in light of all the known 

circumstances, City of Keller, 168 S.W.3d at 813–14, we conclude that no reasonable juror could 

infer that Ebby acted with the intent to deceive Dugas. Specifically, Ebby’s measurement of the 

dimensions of certain rooms in the subject condominium does not establish that it knew DCAD’s 

records were wrong regarding the condominium’s total “livable” square footage. Moreover, while

Ebby could have—and according to Dugas’s interpretation of the MLS rules, should have—

independently verified the accuracy of the DCAD records, there is no evidence that Ebby chose 

not to do so out of a concern that it might discover the records to be wrong, as opposed to some 

other innocent reason.

In sum, the evidence at most gives rise to equal inferences of both fraudulent and nonfraudulent conduct. See City of Keller, 168 S.W.3d at 813 (“When the circumstances are equally 

consistent with either of two facts, neither fact may be inferred.” (citation and internal quotation 

marks omitted)). Accordingly, a reasonable juror could not have inferred that Ebby made an 

indirect misrepresentation. Our conclusion in this respect is consistent with the jury’s 

determination, in response to Question 6, that Ebby did not have actual awareness that the subject 

representation was false.

For each of the foregoing reasons, the evidence is legally insufficient to support the jury’s 

finding in response to Question 5 that Ebby misrepresented a past or existing material fact. We 

sustain Ebby’s third issue.

II. Deceptive Trade Practices Act

Ebby’s first issue challenges the legal sufficiency of the evidence to support the jury’s 

finding that Ebby violated the DTPA. Pertinent to this issue, Question 1 of the charge asked 

whether Ebby “engaged in any false, misleading, or deceptive act or practice.” The charge defined 

“[f]alse, misleading, or deceptive act or practice” as “any of the following”:
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1. representing that goods[

10] had or would have characteristics that they did 

not have; 

2. representing that goods have quantities which they do not have; 

3. advertising goods with the intent not to sell them as advertised; or 

4. failing to disclose information concerning goods which was known at the 

time of the transactions when such failure to disclose such information was 

intended to induce the consumer into a transaction into which the consumer 

would not have entered had the information been disclosed.

See TEX. BUS. & COM. CODE ANN. § 17.46(b)(5), (9), (24) (providing statutory basis for the 

foregoing definitions). The jury answered “yes” to Question 1. It also found in response to 

Question 4 that Ebby committed a “[k]nowing[ ]” DTPA violation—in other words, with “actual 

awareness, at the time of the conduct[,] of the falsity, deception[,] or unfairness of the conduct in 

question.” However, in response to Question 2, the jury found for Ebby with respect to its DTPA 

affirmative defense. Specifically, the jury found, among other elements with respect to this 

defense, that Ebby did not know and could not reasonably have known that the records or sources

on which it relied were false. See TEX. BUS. & COM. CODE ANN. § 17.506(b)(1)–(2). As described 

previously, the court’s judgment disregarded the jury’s answer to this question.

Items 1 through 3 of Question 1 articulate certain types of affirmative misrepresentations 

that are actionable under the DTPA. “A seller and [its] agent are liable under the DTPA for 

affirmative misrepresentations, notwithstanding the agent’s lack of knowledge or notice of falsity.” 

Camden Mach. & Tool, Inc. v. Cascade Co., 870 S.W.2d 304, 311–12 (Tex. App.—Fort Worth 

1993, no writ). As discussed above, no legally sufficient evidence supports a jury finding that Ebby 

made an affirmative misrepresentation to Dugas. 

 

10 The charge defined “goods” as including “real property purchased or leased for use.” See TEX. BUS. & COM. CODE ANN. § 17.45(1) 

(providing statutory basis for such definition).
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In addition, item 4 of Question 1 notes that a failure to disclose is actionable under the 

statute if the seller at the time knew of the subject information that should have been disclosed.

See TEX. BUS. & COM. CODE ANN. § 17.46(b)(24). The statute requires actual knowledge of the 

non-disclosed information. Pfeiffer v. Ebby Halliday Real Estate, Inc., 747 S.W.2d 887, 889–90 

(Tex. App.—Dallas 1988, no writ).

11 As described herein, the evidence suggests that Ebby 

reasonably could have determined the subject unit measured less than 1,178 “livable” square feet. 

However, there is no evidence that Ebby actually knew this information when the transaction 

closed. Moreover, as noted above, the jury found in response to Question 2 that Ebby did not know 

and could not reasonably have known that the records or sources on which it relied were false.

Absent actual knowledge by Ebby, the evidence is legally insufficient to support a finding in 

response to item 4 that Ebby knowingly failed to disclose that the unit was only 885 “livable”

square feet. We sustain Ebby’s first issue.

CONCLUSION

Based upon our review of the evidence, we conclude that no reasonable or fair minded 

juror could have found that Ebby made a misrepresentation or that it was aware at the time that 

DCAD’s records were incorrect. Accordingly, the evidence is legally insufficient to support the 

jury’s verdict. Given this holding, we need not consider Ebby’s remaining issues. We reverse the 

court’s judgment and render judgment that Dugas take nothing.

171028F.P05

 

11 The version of the statute at issue in Pfeifer was contained in section 17.46(b)(23). See Deceptive Trade Practices Act, 66th Leg., R.S., ch. 

603, § 3, 1979 Tex. Gen. Laws 1327, 1329, amended by Act of May 23, 2001, 77th Leg., R.S., ch. 962, § 1, 2001 Tex. Gen. Laws 1929, 1931. 

Effective September 1, 2001, section (b)(23) was moved to section 17.46(b)(24). The language of the renumbered provision is substantially the 

same as the former provision.

/Bill Pedersen, III/

BILL PEDERSEN, III

JUSTICE
–14–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

EBBY HALLIDAY REAL ESTATE, INC., 

Appellant

No. 05-17-01028-CV V.

KEVIN DUGAS, Appellee

On Appeal from the County Court at Law 

No. 3, Dallas County, Texas

Trial Court Cause No. CC-15-04871-C.

Opinion delivered by Justice Pedersen, III. 

Justices Brown and Schenck participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is 

REVERSED and judgment is RENDERED that appellee KEVIN DUGAS take nothing.

It is ORDERED that appellant EBBY HALLIDAY REAL ESTATE, INC. recover its 

costs of this appeal from appellee KEVIN DUGAS.

Judgment entered this 9th day of April, 2019.