## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 18

- 00105

- CV

___________________________

On Appeal from County Cour t at Law No. 2

Tarrant County, Texas Trial Court No. 2015

- 005563

- 2

Before Kerr and Birdwel l , JJ.; and Gonzalez, J. 1 Mem orandum Opinion b y Visiti ng Ju dg e Ruben Gonzalez, Sitt in g by A ssignment

1 The Honorable Ruben Gonzalez, Judge of the 432n d District Court of Tarrant County, sitting by assignment of the Chief Justic e of the Texas Supreme Court pursuant to Section 74.003(h) of the Government Code. See Tex. G ov’t Code Ann

. § 74.003(h). 

### G ARY 

### M ILLHOLLON AND 

### C AROLE 

### M ILLHOLLON 

### , Appellants

V



### . A LAN 

### D. D OUGLAS AND 

### P EGGY 

### J. D OUGLAS 

### , App ellees2 MEMORANDUM OPINION
I. Introduct ion
In three issues, Appellants Gary and Carole Millhollon , s ellers of a ho me, appeal the trial court ’ s judgment on a jury ’ s verdict for Appel lees Alan and Peggy Douglas , the home ’ s buyers. 2 We affirm as modified

.

II. F a ctual and Pr ocedural Background
On January 17, 2012, Ga ry , a retired banker, 3 and his wife Carole , a former executive secretary and teacher, moved to T exas and bought a ho me from real estate developer Lee Hughe s ’ s company , Maverick Homes. Since its construction in 2006,

t he home had been used as a sales center and model home office , so prior to its sale
to the Millhollons no one had t ak en showers in the house, run a washing machine, or
used t he house o ve r the weekend

. Ma verick Homes had had the home inspect ed for

a s tructural home warrant y on December 9, 2011. The in spector note d that the lot ’ s drainage functioned proper ly , and Hughe s c h ecke d “ no ” on the seller ’ s di s closu re wit h regard to awareness o f any known defects or malfunctions in the plu mbi ng or the aerobic septic system 4 or of an y im proper drainage conditions

.

2 Because all four of the par ties testified at trial, w e will refer to the m by th eir firs t name s to eliminate any confusion

.

3 Gary worke d in commercial lending from 1974 until hi s retirement in late 2011 or early 20 12

.

4 An aerobic septic system flows material in a 2,000

- g allo n tank throu gh s everal 500

- gal lon compart ment s. T he first compartment is the septic t ank and uses3

Gary had ordered five inspections of the home before clos ing on the sale

. He
noted in a December 5, 2011 e mail to Paula Kelly , a Maverick Homes employee, “ As you have probably guessed, I ’ m pretty thorough and have s pent o ver $1 500 on inspections. ” One of the inspe ctions was of the home ’ s septic system. Gary ’ s November 29, 2011 septic syste m report by Scott Lewis, a certified septic inspector for A

- Action Home Inspection Group , noted that the s yst em was funct ioning a d equ ately but had su ffere d from poor mai ntenance
. T he r eport further recommended, “ Due to the lack of maintena n ce records, apparent servicing and
ap parent recent excava tion of the septic system, we recommend that the sep tic tank
be pumped out and the interior of the septic tank b e inspected for any possible
deficiencies that cannot otherwise be detected. ” The report also contained a disclaimer tha t stated, in pertinent part, Septic systems are a “ buried ” compon ent which ar e hidden from
n ormal genera l visual s urveys and many possible p roblems may not show themselves at the time of a vis ual survey and thus we cannot make accurate predictions of the future performance of the system or associated comp onents. Accura te determin a tion of locat ion, condition, or lif e expectancy of the system components is not p o ssible from any survey.

anaerobic bacteria , the midd l e compartment uses aerobic bacteria , and the last compartm ent contains c h lorine for last

- chance disinfection “ because some y ards have p lay sets and thing s . ” Tha t is, after the aerobic st age, the system ’ s contents “ should be near drinking water s t ate ” and are then gravity

- fed into the ch lorinator and discharged a s effluent

.4

And t he report not ed, under “Ho w to Prevent Problems, ” that “[m]any septic systems are doomed from the start because they are p ut in poor l ocations or constructed improperly

. ”
In his December 5, 2011 email to Kelly , Gary attached the septic system inspection repor t and a report on the sprinkler system and told her,

We should probably discuss these two items as well

-- es pe cially the septic system. Although it is s hown as “ apparently ” wor king on the report, it has no t been servi ced since the house was built. While I understand that no one was living there, the bathrooms and sinks were used and according to the State of T exas website

--- In compliance wit h the Texas Commis sion on Envir onmental Quality (T CEQ), the owne r of an aerobic s eptic system shall co ntin uously maintain a signed, written maintenance contract with a valid maintenance compa ny. When I asked for the name of this comp any that had the contract, I was told there had not b een one since the house had never been sold. We probably just need to have one o f the septic companies go out , do a pump out and inspect the interior f or any deficiencies. No service
means that it ’ s l i kely that no ch l orine has been input in 5 years.
Ke lly Millikan , another Maverick Homes e mployee, responded to Gary ’ s e mai l on December 7, 2011, stating that she had performed some research and that the Tarrant County Health Depart ment require d that a ma intenance agreement be in place with a certified sept ic company for any occupied prop er ty, providing three

an nual inspection s to make sure the system is functioning properly, “ i.e., sprinklers are properly disbursing, wiring in place , caps pr ope rly placed, etc. ” M illikan told Gary
that because the maintenan ce agreement did not include items like chlorine tablets or5

r eplacing part s like lines or c ompressors, Maverick Homes had been perform ing t hat
maintenance on the house si nce it was b uilt and had had items inspected, r epair ed, or replaced, i ncl uding replaci ng the compressor the previous December. Mil l ikan told Gary that she had had AN S Wastewater, Maverick Homes ’ s septic contractor, i nspect
th e system on De cember 6 to see if it needed to be pumped and was advised that it
had only eight inches of solid waste , so pumping was not recommended at that time

. Mi ll ikan told Gary , “ B a s ed on the information from your inspector that the system is working and from the inspecti on from ANS Wastewater, we don ’ t think pumping the system at this time would be in the best in terest of the system. ” She provid ed him

w ith a contact number at ANS Wast ewater and recommended that he get his maintenance agreement paper work started

. On J anuary 8, 201 2 , Gary signed a

contract for three inspections per year with A NS Wastewater to cove r J anuary 20,
2013 to Janu ary 20, 2014

. When Gary and Carole moved in, they installed a wro ught

- i ron fence on

concr ete footing to protect th eir two small do g s from t he back yard neighbor s ’ four
Rot t weilers

. Gar

y hired a contractor w

ho told him he needed a four

- inch footing :

two inches under ground and two inches above ground

. H e s ecured appro val , and the

contractor built the fence

.6

According to Carole, Texas had been in a d r ought when they moved in , but o n January 25, 2012, 2.15 inches of rain fell, 5 and an additional .4 6 of an inch fell the ne xt day. C aro le described this rain event a s a “ gully was her , ” and Gary said that a fter the rain, water flowed over the new fence ’ s conc r ete footing and covered the fence with dirt, grass, dead leaves, and trash “ be cause th at water was just going throu gh there so hard, ” on its flow from east to west, a nd south t o north. After the gully washer, t he n eighbors told Gary that there had been flo o ding problem s at the house before then , and one of the septic system servic ing company ’ s

em ployees told Gary that he ha d seen the back yard flood “ a b unch of times

. ” Five
da y s later , Gary sent an email to Todd Hamilton , who worked for the subd i vision ’ s management compa ny , to inform him that his back yard had been flooded by the ra in

an d that the h ouse had al most been flooded. In his em ail, Gary explained his plan to
in stall a French dr ain on the southwest hi ll above the house to the “ n atural valle y between [the] house and the house to the south[,] into the street and rock bed belo w [the] driveway.” 6 Hamilton approved the request on Febr uary 1, 2 0 12. Gary hired

5 Before tria l began, the Mil lhollons st ipulated to the ad miss ib i lity of many of the Dougla ses ’ exhibits, including a c hart listing rainfall in inches at Lake Be nbrook, near the property, from January 1, 2012 to December 10, 2015.

6 Hu ghes gave the fo llowing tes timo ny about the drai nage plan Gary had proposed to Ham il ton:

Q . And so if Mr. Mill hollon told the home owner ’ s association that he is going to install a drain that ’ s going to take water beh ind this wall and take it to this natu ra l valley, how is that possi ble gi ven this7

R ome o Martinez to do the work : building a French drain a nd removing a berm near the driveway that channeled wate r into the ba ck yard to direct the wat er down the driveway

. On February 6, Gar y contacted Maverick Homes, and Hughes went out to the
house three days later. 7 Whe n Hughes arrived, four or five men were work ing on
removi ng the berm. H ughes said t hat he told Gary that “ the berm wa s there t o help
with the drainage and take some of the water to the south side of the lot down the driveway side an d also [] hel p the drainage going from the south to the north , ” while
mi ni mizing the amou nt of w ater that we nt down the driveway. H u g hes also t old Gary

picture? How is any engineer

. . . going t o in stall a drain that ’ s g oing to take water f

rom ba ck here up to the top of that hill? I mean, assuming th e laws of gravity have no t been suspended in th is p art of Tarra nt County.
A . Well, obviousl y, y ou couldn ’ t take it from where the four

- inch curb e xi sted as I saw it built to

-- it would make no sense to take it to the top of that hill if that was your que stion. Q . And you couldn ’ t take it from the top of this wall th at was never built either, co uld yo u? Near the back, the edge of the property, you c an ’ t t ake it from there to t his natural valley?
A . Not to the location you ’ re pointing to sir, no.

7 Gary said that a fter lea ving several unreturne d voicemails for Hughes, he sent Hughes an em ail st ating that three of the neighbors and one of Hughes ’ s v endors had told him that there w as frequen tly standing wat er in th e ba ck yard and because Hughes had not divulged this, i f Hughe s did not meet with hi m, he would “ go to the board of realtors and a nybo d y else, including the attorney general

. ” He said that Hughes app e ared the nex t d ay.8

that he thought the con crete foot ing on the wrought

- iron fence “ substantially blocked
the flow o f water fro m the south to the north and was the cause of the water b acking up at that point ” a nd that it w as very much like putting a softbal l in a t o i let , flus hing it multiple times , and “ expecting it not to overflow

. ” Gary denied having e ve r heard Hughes sa y anything about a so ftball in a toilet and said tha t Hughes had just told him
to be caref

ul wit h the concrete footing becaus e the cou n ty and the Army Corps of Eng ineers did not w ant anything to impe de water flowing down hill. Gary acknowledged that what he had initially proposed to Hamilton was not what he actually did , but he sai d that Hughes had total control o ver any and a ll approvals and that Hughes told him that it looked fin e when he came out a nd saw what Gary was doing

. Gary had no documentation showing the chang es that he had made from his approved proposal

. Hughes testified that mak ing the d riveway on a sloped lot the main dra inage for a property would not be a prudent i dea because over time, w a ter could cause subst antial damage if it seeped underneath the concrete
. Hughes said that he a nd Gary also t alke d about the aerobic septic s ystem and that Gary told him that he thought it was placed too low, that water had gotten into the sys t em, that the system ’ s alarm had gone off a couple of times , and that

so m etimes the toilet in the gu est ba throo m would not f lush

. Gary testif

ied that one of the sept ic system maintenance men tol d him that when the alarm activated, it was9

becau se t he spr inklers or tanks were s topped up , but h e denied that the alarm had
ever gon e off when h e o wned t he house , even when the tanks were filling up
. 8
On Februa r y 21, 2012, Martinez charged Gary $4,425 for the work he did on the property ; M a verick Hom es paid th e Millhollons $2, 000 to settle their complaints about the septic sys tem and the property ’ s drainage. Car ol e testified that Martinez ’ s work on the ba ck

yard seemed to s o lve the problem and that afte r Martinez changed the drainage in the back yard, most of the back yard wat er went down the driveway.
Carole sa id that they had had parties in the driv eway with up to 100 people with no problems with th e bathrooms or sep t ic system. G ary likewise testified that after the
French drain was installed and the s hrubbery rem oved, the y did not have any other problems with drainage.
H owever, it rained .15 inches on March 29, 2013, an d .2 inches the next day; o n March 31, a Service C o mpany Plumbing , LLC plumber went to the property “ for commode bubbling and not fl ushin g properly

. ” 9 T he p lumber noted that he “ pulled

com mode, che cked stac k (o ffset), reset commode, roto

- root [ed] main s e wer line for

mas ter s hower , and f

lushed commode several times; no b ubbling. ” 10 T he plumb er

8 P eggy , in contrast, said th at before the Douglases replaced the system, the alarm went off “ a lot ” a nd had bu rned up more than one motor
.

9 Car ole said that she had noticed tiny bubbles and a sked Gary to call a pl umber but that sh e d id not hear any gurglin g because she “ always had the T.V. on. ”

10 Alan said that when he sa w the March 31, 201 3 receipt from the plumber , he kne w that it was inaccurate “ because when [he] boug ht the ho use, it had a bubbl ing10

returned a few months later, on August 16 , 2013 , for a cl ogged line and determined

t hat the “ water level in the tank a nd sewer line [wer e] near to the same l evel [ ,] resulting in [a

] static s e wer line from [the] house. ” Gary testif

ied that when the plumber came out on August 16 , the plumber told
him that the water was not moving very well , tha t he thou ght the septic system ’ s fir st tank might be clogged, and tha t Gary ne eded to get someone to check the septic
system. Gary said that the plumber told him that the line was not static but that it slop ed. Gary called Gar rett Aerobi c Septic Systems , which came out to the property on Au g ust 23, 2013

. Gary said that Gar rett ’ s employees “ dug a hole ” and t old him that

“ the top had been destroyed or deteriorated or whatever, and the tank wa s full of

tras h a nd grass and all kinds of things. ” 11 Garrett ’ s employe es told him to hi r e

someon e to “ suc k everything out, and the n they t old [him] they needed to put a riser on that one tank, and they needed to build a new top for it, and then t hey needed to

toilet a week afte r [

he] move d in. ” Carole said that t he plumber told her that h e had repositioned the toilet becau se it was not “ ov er the hole enough ” and tha t s he t hought this had f

ixed the problem.

11 Garrett ’ s August 23, 2013 invoice reflects that t he Millhollons were charged $75 for “ Servic e Call for toil et not flushing pro perly, ” and $ 50 for “ Dug up trash tank concrete plug in tank and flushed out 3

- in ch line going into trash tank , ” for a total of $125.11

replace the so d around it and all that. ” 12 S o Gary told them to do it, an d they di d it

. Gar y said that after taking th ese actions , he and Carole had no other pro blems wit h the system. Gary took no action to change the slope of the sewer line from the house
to the ae robic system “because the aerobic people told [him] that wasn’t need ed” and

wate r wa s flowing through fine. It rained 2.5 inches on September 20, 2013, 13 1 .1 inches on Octob er 14, and .82
inches on October 16. On October 19, 2013, the Mill ho l lons decided to sell the house and signed a

“ Seller ’ s Disclosure Notice ” form in which they i nd icated tha t they were not aware of any defects or malfunctions in the plumbing system or septic/on

- site sewer facility and that they were not aware of any improper drai nage as of tha t date. A nd although
th e disclosures asked whether the Mill h ollons had recei ved any written inspection reports from persons who regularly provide inspections and who are either licensed as inspectors or otherwise permitted by law to perform i nspe c t ions, they only d isclosed

two: a December 2011 ho me inspe ction by Lonestar Inspection Service and a

12 Gar rett ’ s August 27, 2013 invoice ref lects that the Millhollons were charg ed $125 for “ En larged hol e over trash tank plug, ins talled [two] 20 [

- inch] x 12 [

- inch] tuff

tite riser & 20 [

- inch

] tu ff

- tite lid, ” $6 for a bag of concrete, $35 for the Tuff Tit e lid, $25 for the 20

- inch x 6

- inch Tuff Tite riser, and $40 for the 20

- inch x 12

- inch Tuff Tite riser. With ta x, the total for th is work was $244.56

.

13 C a role testified that she had a h i p replacement in Se ptember 2013 , an d then a fall at her grandson ’ s house t hat required extens ive surgery , necessitating a move to a house that wa s n ot on a hill.12

December 2011 ra don inspection by Mad ove/DFW Ra don. They did not dis close
the November 29, 2011 septic system report by Lewis, A

- Action Home Ins p ectio n Grou p ’ s ce rtified septic inspector , or the other two repor ts Gary had referenced when dealing with M a

verick Homes prior to the Millho llons ’ purchase of the home

. The disclosure also asked the seller to list the home ’ s service provide r s, a nd the
Millh ollon s listed A tmos for electric, AT &T for cable a nd phone , and Bob ’ s Cans for

t rash, but they wrote “ N/A ” next to s ewer and did not mention that the y had a

contract with A NS Wastewater through January 20, 2014

. Car o le t estified in her deposition that “ [a]s fa r as [she and Gary] knew at th is time [Octob er 19, 2 013], th is [the seller ’ s disclosure notice wa s ] exactly the truth. ” She said that she did not provide any of the information because her “ h u sband
h and les these th ings, ” and he fi lled it out , bu t that she r ead it , “ and it was correct , and [she ] sign ed it. ” 14 Gary said that he had filled out the disclosur es truthfully and that he did not understand them to require a whole history but rat h er the house’s
condition as it was when they put it up for sale.

14 Carole te stified that she and Gary had owned eight ho uses over the cours e of t heir thirty

- f

i ve

- year marriage. After she re tired, they would buy a house out of foreclosure, fix it up, live in it for three or four years, and then sell it, w orking their way up to hav

ing a “ really nice home. ” She knew how to p aint , lay tile, an d re finish cabine ts , but they h ired handyme n to handle the complex work, like the installation of toilets

. Carole said tha t they did not have to do much to the home at issue othe r than replace the carpet because of wear caused b y pe d estrian traff ic and business use during its time as a mo del home and sales office

.13

The Millhollons pr ovide d th e seller ’ s disclosure notice to Alan , who was al so a banker, 15 and his wife Peggy , a realt or, 16 ar ound four months later, in F ebruary 2014 , a month duri n g w hich virtual ly no rain fell

. The real estate contract with the M illhollons wa s the first one Peggy had done
sin ce reactivating her license , and she used the standard contrac t form for “ One to
F ou r Family R esi dential, ” pr omulgated by the Texas Real Es tate Commission (TREC) , to pr epare their offer, filling in the blanks , including th e one next to

“ Acceptance of Property Co ndition, ” where the Douglases checked, “ Buyer accepts the Property in its present condi t ion

. ” Because a real estate agent would have made three percent of the sales price on the tr ansaction, using Peggy’s real estat e license on the sale saved the Millhollons $12,420 in the buyer’s commission. C arole said tha t they had discounte d the house’s price becaus e Peggy was not going to charge a
commission. Neither party was represented by counsel , and Pe ggy testified that s he and Alan could not have negotiated an “ as

- is ” contract wi th the Millh ollons without

15 Alan worked in financing commercial and residential real estate.

16 Peggy had been a realtor for over twe nty years but had not been active for most of that t

ime

. She had a GED a nd some colle ge education and had worked as a re al estate agent in Texas from 1983 to 1995

. A year b efore she went inactive i n Texas (1994), seller disclos ures came out, changing Tex as from a “ buyer bew are ”
s tate. Peggy became licens ed in Florida i n 2006 but was only active for six weeks in 2013 b efore they moved. S he reacti v ated her Te xas license in January 2014 after t aking 30 hours of online courses.14

legal counsel because the state would not let her, as a re al estate agent, do that without representation for both parties.
T h e Douglases ’ home inspector visited the ho me for five hours on Febr uary 22, 2014 , noting in his report t hat the day wa s “ C lear/ S unny , ” and he li ste d a number
of def ects in his twe nty

- page property ins pection report but noted that insp ection of the sept ic system was “limited to what is easily acces sible/observable, ” and recommended that a reputabl e s ep tic co m pany be consul t ed. Carole was at home
when the D ouglas es ’ home inspector visited th e house. Gary w as not at the house for the inspection , although he a cknowledged that he had said in his affid avit in a n earlier
court fi lin g that he h a d been there

. On February 25 , 2014, Aerobi

- Tech, a n aerobic s eptic specialis t, inspected the
home ’ s septic system for th e Douglases and reported that the “ sy stem [was] working
fine. ” Alan said that when Aero bi

- Te ch inspected the system, it had not ra ined for a
whil e and that he did not know to tell eit her the home inspector or the septic specialist to look for specific issues s uch as dra inage or to check the s lope of the

s ewer line or the rise rs ’ water

- tightne ss . Alan test ified that if h e h ad known a b out the plumber ’ s August 2013 comment about t he stat ic s ewer line, he could have directed the home inspector to loo k for the cause and to find a solution to it. The parties ex ecuted a repair add endum on M arch 3, 2014 , providing that the
M illhol l ons wo uld address nine items identifi ed in the h ome inspector ’ s report, which
included “ Struc tural Syst ems ” and “ Plum b ing System ” cate gories. The structural15

systems that the home inspector had identifi ed in his re port and that th e Millhollon s
ag ree d to correct pertained to some cosmetic is sues with the home ’s foundation and
the home ’ s gut te rs: the “[d] ownsp out extension at the fron t of the home [was] crushed/collapsed , ” the gutter downspout at the ho me ’s rear was not connected to the drai nag e sy ste m , and the gutter system over the garage a rea had a small amount o f
debris “ suggest [

ing that ] the slop e may not [have been] adequate to discharge the
water ef fectively

. ” T he home ins pector recom mended repair ing the former ,

co nnect i n g the rea r d ownspout to the drainage system , and reslo ping the garage gutter to ensure water discharged properly

. The p lumbing system issues identified by the home insp ector pertained only to

“ [m]ultiple e xterior hose bibs . . . missing the b a ck

- flow/ anti

- s i pho n device , ” which
he recommend ed rep la cing “ to eliminate t he potential for contaminated water to be sip honed int o the home [ ’ ] s fresh water system, ” and a lack of an access point f or repairs t o the pump and m echa nical equi pment f o r the master bathroom hydro

massage therapy tub

. 17 In response to these items, Gary purchased and installed b ack

flow d evi ces on all three outdoor fa ucets (hose bi bs) and checked with the builder , who explaine d how a repa irman would access the tub for motor repairs.

17 Oth er i tems that the insp e ctor identified and recomm ended repair ing and which the Millhollons agreed in the addend um to have fixed included some roof damage , some minor door problems , and some minor el ect r ical and HV AC issues

.16

O n April 24, 2014 , the Millhollons sold the home to the Do uglases

. Alan said that before closing , their o nly discussions wit h the Mil lhollons abo ut the sept i c s ystem
ha d been about routine maintenance and that the Millhollons never mentioned anything about the alt erations they had ma de to the property ’ s d rainag e or any of the problems they had experienced

. Alan said that the Dou glases relie d o n the ir ho me inspection report to make the add endum to the sales contract but that they “ 100%
relied on ” the M ill hollons ’ d isclosures

. Carole sa i d that th e Mill hollons ’ disclosure s w ere true , adding, “ I don ’ t know if
it was because the torr ential rai ns or anything [ex perienced by the Douglases after the purchase] , but we did not lie on that disclosure. ” Gary s aid that he di d not tell t he Douglases prior to closing about the history of what he had fixed on the pr operty

“ beca use it was working pr operly. ” Gary said that the difference between Hughes ’ s disclosures and the Millhollons ’ disclosures , which were identical t o Hughes ’ s , was that the Millhollons had corrected the septic and drainage problems such that on the
date of th eir disclo sures, the re were no pr oblems.
Not l ong after the purchase, however, the Douglases began to experience
issues with the home ’ s plu m bing , septic system , and drai nage . Alan said that f ive days
aft er moving in , they noticed a toilet star t b ubbling and , sporadically, a little bi t of

“ odor ” and slow flushing. 18 Alan said that when there was no rain, the plumbing

18 T here was no r ainfall reported u ntil May 9, 2014, whe n 1.06 inches of r ain fell

.17

would work fine du ring the w ee k when h e and Pe ggy we re not at home, but on the

w eekends, sho we ring, doing laundry, and using the ba throom would cause the system to back up. Peggy said that the problems did not occur every day

. The Douglases sig ned an annual maintenance agree ment for the sept ic system with Lone Star A erobic Service Company with a start date of June 1, 2014 , and an end date of May 31, 2015. The record does not reflect whether any maintenance company i n spections were
conducted between the end of t he January 20, 2014 contract th at t he Millhollo ns had
with A NS Wastewater and the start of the Douglases ’ contract with Lone Star

. On June 13, 2014, Lone Star made a service call

. L one Star ’ s ins pec tor indicated that the various compo nents tested had an “ operative ” s tatus and stated,

“ Only found one septic spray head. Office will get design from county to see where other spray heads should be. ”
Alan called Ga ry se v enty

- se ven days after t he Douglases move d i n , on July 10, 2014, to ask about wha t they were seeing and experiencing with the house

. At that point, in addition to the 1.0 6 inches of rain fall on May 9, there had also be en the following rainfall amou nts in i nches : 1 .5 on May 13, .3 on May 1 4, .38 on May 25, .32

on May 26, .41 on May 27, 1 .3 8 on Ju n e 9, 1.4 on Jun e 22, .63 on June 23, and

. 8 on June 25 , in addition to some lesser amounts on June 8 (.09), June 10 (.23), June 13 ( .11), June 24 (.18) , and July 3 (.13)

. Alan said that within an hour or two of even a sligh t rain

— a quarter to a half an inch

— the sept i c system ’ s alar m would go off an d the system would not function properly. He “ o ften had to g et a sump pump a nd18

pump f r om the ch lo rin ated tank just so [they] cou ld use the house when it was raining. ” Alan sa id that without the sump pump, the system ’ s alarm went off “ abo ut every hour ” when significant rainfall occurred. Gary r eplied by email on July 1 1 , 2014. In hi s email, he told Alan abo ut his

e xperience with the house , including that in December 2011, his ho me inspector had told him to get the aerobic septic system c hecked out , and Hughes had told him to
call ANS Systems and had told him t hat Maverick Homes had not main t ained the
system because the house was not b eing li ved in

. Gar y told Alan that he had called ANS, who told him that the company that had built the se ptic system had “ gone broke ” but that they would inspec t it, tol d him that “ all was fine and working
pr operly , ” 19 and offered to m aintain it for $175 /year. Gary further told Alan in his July 11, 2014 email, During the first year, we had a huge rain and wa ter was flooding the backyard. It was onl y in ches from the patio and I had to squeegee it off the patio until the r ain stopped . . . . I h ired a landscape engineer [ 20 ] who

19 Gary did n ot mention a nything about what Lewis, the certified s eptic inspector who conducted the November 29, 2011 inspection, said about how the system had suffered from poo r maintenance.

20 Gar y testified that he did n ot r emember the name o f the la ndscape engineer or archit ect that he contac ted because he had called three or four othe rs first. One came out to the property, and he ma de a sketch w hile they were talking

. Carole said that the landsc ape e ngineer who came to th e house “ just drew a littl e fu nny drawing , and it wa s going to be , like, $17,000, and we couldn ’ t affor d it, and we ch ecked around, and we got a referral. ” Wh en a sked if they had k ept the drawing, Ca role said she did no t kno w because she trusted her husba nd to take care of it.19

ca me out and told me that there were two pr oblems. 1) the natural drainage fro m the land was the driveway and 2) it would be adeq uate to a l low most of the water t o flow down the driv eway to the street and gully but that th e dense, 7 foot sh rubs that were al l along the top of the driveway was acting as a da m and diverting the wa ter to the backyard. He also said that I should install a French drain th rough the low part of the back yard so that any excess water wo uld go down on the north side. I did all of th is and had to re

- sod the back yard at a cost of ar ound $8500. I went after Hughes hard and he cough ed up $5,000 of the cost . [ 21 ] (I only bring this part in to show you how I had to threaten Hughes to fix t his problem aft er he misrepresented on the disc losure and checked that no drainage problems were eve r expe rienced.) We kept having problems with the toilet in the small bathroom near the office. It would not flush. I had a plumb er come out who s coped every thing and sa id that the problem was th e sept ic. T hat [there was] no riser built on the first tan k and there was no cover on it. He said that it was 100 % full and that with e ach rain, water and trash would flow into it making t he situ ation worse. I had t o hire two c ompanies

— one to clean out the ta nks an d a second to put in concrete, a ri ser [,] and a top. After that, the toilet wo rked fine and the system was working well. Th e cost fo r all of that was around $750. I did not pur sue Hughes for that

— didn ’ t h ave the time

.

W he n asked who desig ned the d rain that he b uilt fo r the Millhollons, Martinez testified that he and Gary did it. Martinez testified that he had no for m al education as
a l andsc aper, architect, or engineer but had been ins talling drai ns for the last nine years . The fence with the conc rete footing was already in the y ard when he installed the drain. Carole stated , “ I realized that [Mar t inez] is not an expe rt, b ut we ’ re just kind o f normal people, and we hire people with ex perience, ” s ince all they wanted was
a French drain so that the flat part of the back yard would not hold standing water.
A lan said that in the three years that he had been liv ing with the lawsuit, he had never seen the name of the landscape e ng ineer or architect that the Millhollons had hired to design the house ’ s dra inage.

21 During his testimony, Gary said tha t it was only $2 , 000 that he had got ten from Hughes.20

In his email, Ga ry als o told Alan that he had capped one of the sep ti c system ’ s two sp rinkler heads to keep effl uent from running down the driveway where hi s grandson played and that a contractor had told him that if the sprinkl er ever stop ped up, the al arm would sound be fore t he last tank got full. Gary told Alan how to uncap the second sprinkler head and said tha t he had n o idea what Hugh es had su b mitted to the county about the system becau se he had not checked “ into that aspect of the
deal , ” 22 but he opined that Hughes had probably used a sub par contractor
. Gary
stated in his email , “ I do know that the s eptic sys tem worked fine ever s inc e we had
the work done and we had n o problem s af ter th at time. ” Three days later, on July 14, 2014, Dee Scarbro of Lone Star Aerobic inspected the septic syst em and concluded that the system was causing an unsafe environment
for t he Dou glas es and their nei ghbors because the original desig n, m arked “ used for inspection , ” required three spray heads , the original p lan required a night

- timed sprayer control but the control panel had no timer mechan ism installed, the riser joints were s ealed with spray foam that was not designed to be used in w et a pplica tion

area s or in con nection with electrical wiring, the wire co nnections inside the tank were

22 In a n April 6, 201 5 email to Alan , Gary said , “ There is nothing recorded wit h the c ounty on where the a erobic sprinkler h ead s are located. I checked all o f that out when I bought the ho use. ” Durin g trial, Gary admitted that he had not c hecked wit h the county on anything before he sold the house to the Dougl ases and that he nev er went to the county to try to find t he aer obic system ’ s design. He admitted th at he
no neth eless told Alan i n an email that there was n othing on fil e with the c ounty about where the sprinkler heads were supposed to be.21

exposed, and the orig

inal plan required “ landscape and terrace as need [ed] to minimize runoff

” b ut “ thi s was appa r ently ne ve r performed and the slop e allows for

run off. ”
C ommunication s between the parties broke down between 20 14 and 2015, with Gary testifying that they had dif ferent opinions and that he was “tired of hearing
about the drainage. ” And then Carole was in a serious acciden t on January 3, 2015 , when a truck ran a red light

. 23 On April 10, 2015, an employee of H elton

- Ingram Environment al Services inspected the septic system; there w as still only one sprinkler head opera ting

. William Ingram , Helton

- Ingram ’ s CE O a nd a state

- certif ied installe r II 24 of aerobic s eptic
systems , testified that w hile th e system c ould be operated that way, i t was illegal to do
so because it w as inc onsistent with the county

- approved design

. On June 2, 2015, I ngram we nt to the house to complet e the instal la tion of a new control panel o n the system
. He returned on June 11, w hen Alan asked him to figure out why there were s till issues with t he system
. I n gram said that the system

23 Gary testified that he wa s very di stracted during this time b ecause Carole had to have multiple sur geri es to repa ir four teen pe lvic fracture s, thre e breaks in h er arm, and some back injuries

.

24 Ingram ex plained that an installer II license was a step above installer I a nd the highest level in the industry for insta lling, repairing, and m ain tain ing aerobic septic sys tems
.22

“ was full of wa ter and wa sn ’ t ej ecting th e water prop erly. ” 25 He clea re d t he eff luent
pump ’ s cl ogged filters and then dug to try to identify the problem with the inlet pipe portion from the house.
I ngram deter m ined that the h eight difference in pipe l evel was going in the

wron g dire cti on fr om the house , stating , “ We s hould have [a minimum ] fall at eight

inch per foot from t he house to the tank

. . . [but instead] [h] e had four inches of up [

- ] grade, g oing up hill from the home to the tank, which is also placing that inlet pipe
pa rtially u nde r water at normal operating le vel. A bout half the pipe was under water.”
He c oncluded that the whole system was buried around 6 in ches too sh all ow in the
g round, that the system ’ s risers needed to be replaced because they were loose a nd
not seale d we ll to each other, and that the s ystem had been inf iltrated “ at some point , ” based o n the grass and other items that he found in the tank. He

reco mme nded instal l ing a new system , at a cost of $12,260

. Ingram al so concluded that any signifi cant r ainfall woul d ca use the system to malfunction and that the alarm would sound every time that happe ned , stating,
It would have b ackup issue s . You would have cross

- t ank contaminatio n, materials leaving one com p artment to the other. Some materials would pro bably even return back to the home, trying to flu sh. Microorganisms would probably be getting pumped out on to [p] of the yard, bei ng that the y ’re in the pump tank. The y’re not suppo s ed to be in there, but

25 While there was n o rainfall during the first two weeks of June 2 015, May 2 015 had b een fairly damp , with twenty out of thirty

- o ne days reporting some rainfall. Nine of those twenty days had at l east half an inch of rainf all, and five of t hose day s had at least one inch of rainfall.23

the y’v e moved b etween compartments because they’re fl ooded. Th e stuff all gets pushed out on top of th e yard. Eventually, with the slope, it would probably run right back to his se ptic system and get pumped out and th e process repeat ed again, over and over. Ingram stated that he would not h ave be en surprised that t he Aerobi

- Tech inspector
fo und that the system was working proper ly in April 201 4 if it had not rained in a month

. Harrington Environmental Services , LLC d / b / a Harrington Sep tic &
Enviro nmental Services cam e out on July 3, 2015, and confirmed Ingram ’ s dia gno sis , noting, “I t appears that the tank was n ot installed deep enough, causing the inlet pipe to stay ful l of water.”
O n Septe mber 23, 2015, the Douglas es sued the Mill ho l l o ns for fraud in a r eal
estate transaction under B usiness and C o mmerc e C ode S ec t ion 27.01 and for
vi olations of the Dec eptive Trade P ractices Act (DTPA)

. See Tex. B us . & Co m. Code
An n. § § 17.46 (a), (b) (24

) , 17 .50(a)(1) (B), 27.01(a)(1)

. In July 2016, Circle G Landscape Services designed a drai n age system for the
property. Clay McCook , Circ le G ’ s operations manager , testified that the main issue
addressed was hand lin g water t ha t had been moving across and down the driv eway, leading to c racking in the concrete. Ci rcle G installed a six

- inch curb around the driveway to create a backstop , tied the house ’ s down spouts into the drai nage system, and add ed a F re nch dra in system to connect into a pipe to the stre et ; the work that
p ertained strictly to the drainage install ation and work around the new septic system24

cost $9,8 85. In August 2016, Martinez extend ed the dra in that went f r om south to north on the property for $2 ,000

. Alan said that before the s ept ic system was replaced and the drainage system corrected , wate r would pool around the se ptic
system tanks seventy percent o f the time.
Ch ris M itchell, who had an i nstaller II certification , insta lled the Douglase s ’ new septic system on July 15, 2016 , afte r meas uring the slop e of the septic line from
the house to the ex isting system

. Mitchel l described the system ’ s pr oblem, stati ng , “Starti ng a t the house and going to the trash tank, it was going uphill to the trash tank,” by 2.5 inches

— es sent ially, everything coming out of the house was having to go uphil l. The cost of removing th e old system, permittin g for the ne w s ystem, and
install ing t he new syste m was $9,860. Ingram opined that the $9, 860 bid wa s a n

“ underbid ” job. On October 12, 2016, the Douglases had $5,870 worth of work done on the driveway to replace the co ncr ete that h ad cracked because of water draining ove r and
under it.
T he Douglases sought re covery for all of the post

- suit work as wel l as the
testin g and inspections ($85 for Harrington Servi ces , $175 for Helton

- Ingram) and for

a septic sy stem compres sor that had bur ned up in the inte r i m ($ 49 5)

. Alan gav e the following an swer s when asked by his attorney about whether he would have pur c hased the property if he had known about all of its problems:25 Q. Would you have purchased this property fr om Mr. and Mrs. Millholl on had any o f the following been disclosed? That the inlet pi pe f rom the house was level or went uphill to the aerobic system?
A . No. Q. That the tanks were n ’ t sealed from water?
A. No. Q. That the tanks took on wate r during sig nificant rain?
A. No. Q. Tha t th e aerobic system became basically inoperable with
s igni ficant rain?
A. No. Q. That the tanks and the structure was buried to o shallow i n the ground?
A. No. Q. Or was not set at the right depth?
A. No. Q. That there w as often a bad smell in the bathro o m right off the kitchen and that the shower backed up and toilet didn ’ t flush sometimes in that bathroom?
A. No. Q. That the wate r lev els in the tanks were level or near to the same level?
A. No. Q. You si mply wouldn ’ t have bought the house?26 A. Corr e c t
. Q. Why is that? A. Too many problems. [ 26 ] Can ’ t li ve in it. Q. As far as the drainage situation, would you have p urchased the property had you known that the drainage had bee n altered to change most of th e flow of th e water from the natural flow of s o u th to north to east to west?
A. No. Q. Would yo u ha ve bought the property had you known that the drainage system ha d been altered to the po int that the drainage had been change d from south to north to the u se of the dr iveway for most of the water in th e backyard?
A. No. Q. Now, are you asking that th e ju ry find that Mr. and Mrs. Millhollon in their disclosures misrep resented this house i n ter ms of the drainage and aerobic syst em?
A. Yes. Q. And are you a sking that t hey find that their actions were c o m mit ted knowingly?
A. Yes. Q. And what do you ba se t hat on, please? A. Gary ’ s e

- mail and other information we ’ ve ga ined through the disc overy proc ess. The invoice that he provi ded of a plumber that did work on the hous e that found the static line. It ’ s j ust on e thing after the

26 Alan said that all of the documentation showed that the Millhollons had a history of pro blems with the house of the same type that th e Douglases did.27

other that he either told me after we closed or we found out through depositions and discover y. Pegg y agreed w

ith Alan ’ s answers and said th at they had had no discussions with the
M i llhollons prior to the April 24, 2 0 1 4 closing regarding the drai nage or ae robic sept i c
sy stem or any of the changes the Mill hollons had made. Peggy sa id that it would have been impossible fo r the Millhollons to have live d in the hou se without experiencing the same p r o blems. Alan opined that the Millhollons ha d breached the contra ct as of the date of closing because they c ould have amend ed the ir October 19, 2013 discl osures but did not and the contract specifica lly stated t hat a ll “ representations . . . in t h is contract
survive c losing ” and that “ if any representation of Seller in this contract is unt rue on the Closing Date, Seller will be in default. ” He said that none of the super ficial ,

co smetic

- t ype deficienci es re vealed by the h o me inspection c aused him to questio n the credibility of the Millhollon s ’ disclosures , which he and Pegg y had reli ed on. Gary acknowledged that if he ha d known a t the time of the closing that the septi c syst em needed to be replaced or that th ere was improper drainage, he should
have d isclosed it. But he stated that there was nothing wrong with th e septic system when they sold the house and that “ [i ]t was working perfectly. ” H e sa id that he did not give the Douglases t he p lumbing invoices because the Dougla ses did not ask for
them

. He said that the Douglases had asked for inspection reports on th e hous e, and
he did not co nsider the plum bing invoice s to be ins pection repo rts.28

A lit tle over t

wo years after the Douglases sued the Millhollons , 27 a six

- member jury fo und in the Douglases ’ favor after four days of hearing ev idence , answering the following questions unanimously

. Question s 1 and 4 aske d the jury whe ther the Millholl o n s had engaged in any false, misleading, or de ceptive ac t or practice that the Douglas es rel ied on to their
de triment and that was a produci ng cause of damages t o the Douglas es and def ined

“ producing ca use ” and “ false, misle ading, or dece ptive act or practice. ” “ Prod ucing

cause ” was de fi ned as “ a cause that was a substantial factor in brin ging about the damages , if any, and witho ut which the damages would not have occu rred , ” an d

“ False, m isleading, or d ece ptive act or practi c e ” was defined as
1. Failing to disclose information about the P ro perty that was known at the time of the sale o f the P roperty if such failure to d isclose such information was inte n ded to induce the D ougl ases to enter into th e tr ansacti on that they would not have entered into if the information had been dis closed.
2. Rep re senting th at th e Property had characterist ics that it did not ha ve or was of a particular qual ity which it did not have.
3. Representing tha t an agree ment confers or involv es right s, remedies or obligations which it did not have or involve, or which are pr oh ibited by law.
4. R e presenting that work or serv ices ha d been perf ormed on the Property when suc h work or services h a d not been performe d.

27 P eggy said that they su ed Carole beca use she had signed off on the dis closures after living in the home for two years , stating, “ T h ey had a ll the knowledge, both of them, equally. ”29

T he jury answered “ yes ” t o Quest ion s 1 and 4

. Question s 2 and 5 asked the jur y wh ether the Millho llon s had engaged in any

unconsc ion able action or course o f action that was a pr oducing cau se of dam a ges to
the D ouglase s , r eciting the same definition of “ pr oducin g cause ” as in Question s 1
and 4 and explaining that an unconscion able actio n or course of action “ is an act or practice tha t, to a consum er ’ s detrime nt, takes advan tage of the la ck of kno wled g e, ability, experie nce, or capacity of the consumer to a grossl y unfair degre e. ” The ju ry answered “ yes ” to Question s 2 and 5

. Because the jur ors r esponde d affir matively to Question s 1, 2 , 4, and 5 , they

were also instru c ted to an swer Quest ion s 3 and 6 , which asked whether the
Millho ll o n s enga ged in any such conduct “ k n owingly , ” which was defined as “ actu al

aw areness, at the time of the c onduct, of the fa lsit y, de ception, or unfairness of the
conduct i n question or actual awareness of the co nduc t constituting a failure to comply with a w arranty , ” and w hich the instruction explained could be inferred

“ where objective manifestations indi cat e that a person acted with actual a wareness. ” 28 The jur ors w ere further instructed in Question s 3 and 6 to consider only th e con duct they had found was a produci ng cau se of damages t o the Douglases. The j ur y answered “ yes ” to Qu e stion s 3 and 6

.

28 See Tex. Bus. & Com. Code Ann. § 17.45(9) (defining “ knowi n gly ” under the D TPA).30

Questio n s 7 a nd 9 asked the j ury whether the Millholl o n s had committed

sta t utory fraud against the D ouglas es and defined statutory fr aud as occurring whe n ( 1 ) there is a false representation of a past or ex is ting ma t erial fact, (2) the false representation is mad e to a person for th e p urpose of inducing that p erson to enter
i nto a contract, and (3) the f alse representation is relied on by tha t person in en terin g the contract. The jury answered “ yes ” to Ques t ion s 7 an d 9

. Because the j urors answ er ed Quest ions 7 and 9 affirmatively, they were also
instructe d to answer Questions 8 an d 10 , which asked whether they fo und by clear
and con vi ncing evidence that the Mil lhollons were actually aware of t he falsity of the
rep re sentation f

ound to be fr aud in Questions 7 a nd 9

. “ Clear and Con vincing
Evid e nce ” was defined as “ the m easure or degree of proof that p roduce s a firm belie f
or conviction of t he truth of the a llegation s sought to b e e s tablished

. ” The jury
answered “ y es ” to Questi ons 8 a nd 10

. Questions 11, 12, 13, 14, and 15 p ertai ned to damages. In Questi on 11, the ju r y was instructed to consider only the loss of the benefit of t h e bargain and out

- of

pocket expenses in determi ning c ompensatory da mages resulting from th e con duct inquired about in Questions 1, 2, 4 , 5, 7, or 9. The jury found $29,3 20 for loss

- of

benefi t

- of

- the

- bargain damages and the same amount for ou t

- of

- pocket expenses. I n Question s 12 a nd 13 , t he jur y found $40,000 from each Mi llhollon as the amo u nt , in
addition to a ctual damages, that should be awarded to the Douglas es bec ause the
Mill holl o ns ’ conduct was committed knowingly. In Qu estion 14 ( as to Gary) and31

Quest ion 15 ( as to Carole), the jury was asked about exemplary dam a ges to be
assessed a gains t the Millholl o ns and found $50,0 00 as to Gary and $1 ,000 as to
Carole. Question s 16 and 18 a sked about attorney ’ s fees. 29 Question 1 7 asked whether the M illho ll o ns were in default i n any of the
materia l con tractual obligations to the Dougl ases a t the ti me of the cl osing between the parties. The jury answered “ y es ” to Question 17.
The Mill holl o n s filed a mot ion for judgment not

wi thstan d ing the verdict ( J N OV ) in which they argued that the jury ’ s answer s to Questions 1 t hr ough 16
sho uld be disregarded bec ause the Douglases had f ailed to allege an d prove fraud in
the inducement to nega te th e “ as is/ in its presen t condition ” provision in the

contract , which t h ey argued superseded the alleged misrepresentations and negate d

c au sation for the DTP A and statutory fraud claims, and b ecause there was no

ev idence of reliance o r producing cause w h en the Dougla ses testified that they had
relied on t heir chosen insp ectors to close on the home

. 30 The Millhollons also argue d

29 I n respo nse to Question 16, t he jury awarded $110,000 to the Douglases for repres entation up until the time of t rial, $15,000 in att orney ’ s fees through appeal to this court, $5,000 in attorney ’ s fees for representation at the peti tion for review sta ge in t he supr eme court, and $10, 000 in at torney ’ s fees for representation through oral argument and completi on of a proceeding in the supreme court. In response to Questi on 18, the jury ind icated that a reasonable fee for the Mill hollons ’ attorney fo r prepara ti on and trial was $35,000, for an app eal to this cour t was $15,000, and for an appeal to the supreme court was $10,000.

30 B efore the trial began, the Millholl o n s ’ attorney complained that fraud ulent inducement had not been ple aded , seeki ng to avo id try ing t he issue by conse nt. Duri ng th e charge conference , h e aga in rai sed his fraud ul ent induc ement argume nt ,32

that ther e was no evidence that the y knew there w as “ i mprope r drainage ” o r a defect
wit h th e septic s ystem o n October 1 9, 2013, the day that the y signed the discl osures,

or on the date of closing ; no evidence of a problem occurring wi th re gard to these
i tems that would have p ut the m on notice of a defe ct ; and no evid ence of the cause of
the dam a ges to the drivew ay , no ev idence that the French drain was n ot p er forming as expected, no evid enc e of why it was necessary to contin ue th e drain to the ditch , and n o evidence of proximate or producing cause of th e d amages to th e driveway

. They c omplained that the re was n o evidence that any of th e a bove damages were
f o re seeable or th at they caused, prox imately caus ed, or wer e the producing cause of any of the Doug

lases ’ damage s . And they contended that the jury ’ s re sponse to Questio n 17 should be disregarded because there was no ev ide nce that they had
bre a ched the con tract.
In their motion to modify the judgment, the Millholl o ns renewed t heir “ as is ”

a nd fraud

- in

- the

- inducement ar gumen ts and incor porated by refer ence their m otion for JNOV

. The trial court rendered a judgmen t in acc or dance with the jury ’ s verdict, awarding to the Douglases $29,320 in actual da mages, $ 5 0,000 in additional dam ages

a gainst Gary, $40,000 in additional damag es against Carol e, and $1 10 , 000 in a ttorne y ’ s argued t h at there was no evidence of any false, mislea ding, or deceptive act o r practic e by the Mil lhol l o ns or of the Dougl ases ’ re l iance, an d a rgued th at there was no evidence t o su pport the submission o f Ques tions 2, 3, 4, 5, 6 , 8, 9, 10, 11, 12, 13, 14, 15, and 17

. T he trial court overruled these objec tions

.33

fees , in addition to conditional a ppellate a ttorney ’ s f ees . The trial court denied the
M i ll hol l ons ’ motion fo r JNOV and motion t o m o dify the judgment

. I I I. Disc ussion
I n their f irst and second issue s , the Millholl ons a rgue th at the tria l court erred by denying their mo tion for JNOV and motion to modify the judgment because (1)
there was no evidence that they made any misreprese nt ations of fact , (2) the p roperty was purchased “in its present condition,” or “as is,” w hich they claim wa s no t n egated by a pleading and proof of frau d in t he inducemen t, (3) t he Douglas es had reta ined experts to inspect t he p roperty so that there was no re liance and no producing cause, and (4) the y did not breach the contract and are therefor e due their atto rney ’ s fees

. I n th eir third issu e, th e Mi l lhollons argu e that the trial court erred by rendering j udgment
for the Douglases because there wa s no evidence to support the jury’s findings to Questions 1

– 15 and 17. 31 W e wil l consider th e three issues togeth er. A. Legal Sufficienc y Standard of Review We may susta in a l egal sufficiency challeng e
— that is, a no

- evidenc e challenge

— only when (1) the record discloses a compl ete abse nce of evidence of a

31 As set out above, t he Millho llon s ’ arguments about the lack of evid enc e to support fin ding misrepresentation s of fact , reliance, an d pro duc ing cause corres pond to Q ue stions 1, 4, 7, and 9. T heir complaint about no p roof of fraud i n the induc ement also correspond s to Q uestions 7 a nd 9 , a nd their complaint about the lack of evidence to suppo rt th e jury ’ s finding that they breached the c ontr act cor re spond s to Q ue stion 17

. Their complaints about sufficiency of the evidence t o support d amages cor respond to Q uestions 11, 12, 13, 14, and 15.34

vital f act, (2) the rule s of law or of ev id ence bar the court f

rom gi v ing weight to th e only evidenc e offered to prove a vita l fact, (3) the evidence offered to prove a vita l
fact i s no more than a mere scintilla, or (4) the ev idence establis hes conclusively th e opposite of a vit al fact. Ford Mo to r Co. v. Castillo , 4 44 S.W

. 3d 616, 620 (Tex . 2014) (op. on reh’g) ; Uniroyal Goodri

ch Tire Co. v. Martinez

, 977 S.W.2d 328, 334 (Te x. 1998) (op. on reh’g) . In determining whether legal ly sufficient evidence support s th e finding
under rev iew, we m ust cons id er evidence favorabl e to t h e finding if a r easonable
factfinder could and mu st dis regard contrary evidence unless a reasona ble fac tfinder
could not. Cen t. Ready Mix Concrete Co. v. Is las , 228 S.W.3d 649, 651 (Tex. 200 7 ) ; City of
Keller v. Wilson , 168 S. W. 3d 802, 807, 827 (Te x. 200 5 ). 32
Scintilla me ans a spark or trace. Scintilla , Black ’s Law Dictionary (10th e d. 2014). Anyth ing mor e than a scintilla of evidence is legally sufficient t o support a finding. Cont ’

l Coffe e Prods. Co. v. Caz

arez , 937 S.W.2d 4 4 4, 4 50 (Tex. 1996)

. More t han
a scintilla exists if the evidence rises to a level that would enable reason able and fair

mi nded pe ople to differ in their conclusions. Rocor Int’l, Inc . v. Nat’l Union Fire Ins. , 77

32 A trial court may disregard a jury verd ict and rende r a J N OV if no evi dence support s the jury fin ding s on iss ues necessary t o liabil ity or if a directed verd ict would have been prope r. See Tex. R. Civ. P. 301; Till er v. McLure , 121 S.W.3d 70 9, 713 ( Tex. 2003); Fort Be nd Cty. Drainage Dist. v. Sbrusch , 818 S. W.2 d 392, 394 (T ex. 1991). A dire cted verd ict i s p r ope r only under li mited ci rcum stances: (1) when th e evidence conclusively e stablishes the r ight of the movan t t o judgment or negates th e right of t he opponent; or (2) when the evidence is insufficient to ra i se a mate ria l fact issue. Pru dential I

ns. C o. o f A m. v. Fin. Revi

ew Servs ., I nc. , 29 S.W.3d 74, 77 (Tex. 2000); Playoff Cor p. v. Blackwell

, 300 S.W.3d 451, 454 (Tex. App.

— Fort Worth 2 009, pet . de nied) (op. on r eh’g).35

S.W

. 3 d 253, 262 (Tex. 2002) ; Me rrell Dow Pharm., Inc. v. Havn er , 95 3 S.W.2d 706, 711 (Tex. 1997)

. On the other hand, w hen the evidence offered to p rove a vital fac t is so
weak that it create s no more than a mere surmise or s uspicion of its existence, the
evi d e nce is no more th an a scin tilla and , i n legal effect, is no ev i dence. Kindred v. Con/Chem, Inc. , 650 S.W.2d 61, 63 (T ex. 1983) ; see King Ranch, In c. v. Chapman , 1 18
S.W. 3d 742, 751 (Tex. 2003)

. Both direct and circumstantia l evidence may be used to establis h any material
fact

. Ford M

otor Co. v . Ridgway , 135 S.W.3 d 598, 601 (Tex. 2004). A fact is established by circum stanti al evidence when it can b e fairly and rea sonably inferred from other facts proved in the case. Russel l v. Russell , 865 S.W.2d 929, 933 (

T ex. 1993). But t o withsta nd a legal sufficiency challen ge , ci r cumstantial evid ence still must consist of

more t han a scintilla. Blount v. Bo r dens, Inc. , 910 S.W.2d 931, 933 (Tex. 1995). J urors are the sole judges of th e credibility of the witnesses and t he weight to give their testimony , and reviewing courts ca nnot impose their own opinions to the
contrary. City of Keller

, 168 S.W.3d at 81 9. Jurors may choos e to believe one witness
and disbelieve another. Id. (expl aining , for example, that if both par t ies in a traffic
accident tes tify they had the green light , an appellate court must presume that the prevailing party d id and that the losing party di d not ). They may disregard even uncontradicted and unimpeached testimony from dis interested wit nesses , al though they may not ignore un disputed testi mony that is cl ear, positive, direct, otherwis e credible, free from c ontradi ctions and inconsistencies, a nd coul d ha ve been readily36

controverted, and they are not free to believe testimony that is conclusively neg ated by undi sputed facts

. Id

. at 820. B. Applicable Law

“ [A ] seller of real estate is un der a duty of dis clos ing material facts which would

n ot be discovera ble by the exercise of ordinary care and diligence on the part of the
pur chaser, or which a reaso nable investigation and inqui ry would n ot uncover. ” Smith

v. Nat ’ l Resort C m ties

. , Inc. , 5 85 S.W.2d 655, 65 8 (T ex. 1979)

. However, a seller ha s no duty to di sclose fact s he does not know and is not liable for failing to disclos e what he only should have known

. Prudential Ins. Co . o f Am. v. Jefferson Assocs., L td. , 89 6 S.W.2d 156, 16 2 (Tex. 19 95) ( stating that abs ent any specific knowledge of asb estos in the
b uildin g, seller was not oblig ed to rai se the subject). Property C o de Se ct

ion 5.008, “ Sel ler ’ s Dis closure of Property Condition , ” require s a seller of resid enti al real property to give the p urchaser a written n otice that

“ co nta ins, at a minimum , all of the items in the noti ce prescr ibed by [that] section. ”
Tex. Prop. Code Ann. § 5.008 (a)

. At t he top of the f orm , the sell er ’ s disclosure mus t include a statem ent in capital letters that the n otice “ is a disclosure of selle r ’ s knowledge of the condition of th e p roperty as of the date signed by seller and is not a
substitute for an y inspections o r warr anti es the purchaser may wish to obtain. It is

not a warrant

y of any kind by seller or seller ’ s agents. ” Id. § 5.008 (b)

. 33 Subsection (d)

33 Property C ode S ection 5.00 8 (b) h as b een amen ded several tim es s ince the inc eption o f th is cas e. See Act of Ma y 22, 201 3, 83rd Leg., R. S. , ch. 695, § 6, 201337

furth er provides that the notic e “ shall be completed to the best of the seller ’ s belief
and k nowledge as of the date the notice is completed and signed by the s eller. ” Id. § 5.0 08(d ) ; s ee Bynu m v. Prudent

ial Residential Serv

s . , Ltd. P ’ ship , 129 S.W.3d 781, 792 , 795 (Tex. App.

— Hou ston [ 1st Dist.] 2004, pet. denied) (op. on re h ’ g) ( n oting t hat sect

ion
5.008 ’ s plain language “ requires o nly that t he form be complete d to the best of t he

s eller ’ s bel ief at the t ime the notice is co mpleted a nd signed, ” a nd holding , on appeal
of no

- eviden ce sum mary judgment, that because there was no eviden ce that the
def endant

- se llers actually kne w that the bathroom h ad been remodeled w ithout the

necessa ry p ermits , t he re was no ev idence that they had intentio nally made a misrepresentat

ion in their section 5.008 disclosure).
The statutory seller ’ s disclosur e notice contains a lis t of items on the p rop erty , in cluding “ plumbing system ” and “ septic sy stem , ” the presence of which the se lle r is
to identi fy

. Tex. P rop. Code Ann. § 5.008(b). The selle r is t hen to indicate whether
he or she is aware of any of the ide ntified it ems that are not in workin g c ondit ion, that
have known d efects, or that are in need of repa ir, a nd a “ yes ” answer r equ ires a description. Id. The seller must a lso disclos e if he or she is “ aware of any know n defect s/malfu nctions in , ” among other things, the “ Plum bing /Sewers/Septi cs ” and the driveway , and a “ y es ” answer requires a des cripti on . Id. The seller is also as ked if

Tex. Sess. Law. Serv

. (a mended 20 15, 2017, 2019) (current version at Te x. P rop. Code Ann. § 5.008 ). None o f the amendments have af fec ted the provisions p erti ne nt to this cas e , so we cit e the current code f or the co nvenience of the parties and public.38

he or she is aware of conditions su c h as improper drain age , a nd a “ yes ” answer requires an explanation

. Id. And the seller must i ndi cate whether he or she is aware of any item, equi pmen t, or system in or on the prope rty that is in need of repai r, and a

“ yes ” answer requir es an explanation

. Id. ; see Birnbaum v. Atwell , No

. 01

- 14

- 00556

- CV,
2015 WL 4967057, at *7 (Tex. App.

— Houston [1st Dist.] Aug. 20, 2015, pet. denied) (mem. op.) ( “ K

nowl edge of past repairs does not e stab lish know ledge of a defecti v e condition. ” ).
In the T R EC form co ntract signed by the partie s, sectio n 7, “ Property
Condition , ” lists subsections A through H. 34 S ubsection A , “ Access, I nspections and
U tilities, ” provides that the seller wil l permit the b uyer and his agents access to the property f

or i nspections

. Subsecti on B, “ Seller ’ s Disclosure Notice Pursuant t o § 5.008, Texas Property Code (Notice), ” instructs the part ies to check on e box only and lists the following options: (1) Buyer has received t he N otice

. (2) Buyer has not recei ved the Notice . Within _______ days after the effective date of this contract, Seller shall deliver the Notice to Bu yer. If Buyer does not rec eive the Notice, Buyer may terminate this contrac t at any time prior to the c losi ng and the earnest money will b e refu nded to Buyer . If Seller delivers the No tice, Buyer may terminate this contra ct

34 Only subsections A, B, and D are pertinent to the issues before us. Subse ctio n C states that a seller ’ s disclosure about lead

- ba sed pain t is required by federal l aw. Subsec tion E pertains to lender

- required repairs and treatments. Subsection F per tains to the completion of all agreed repairs an d treatments prior to the closin g da te . Subsection G addresses environmental matters s uch as t he presence of wetlands or toxic subs tances , and Sub section H mentions residentia l service contracts.39

for any reason within 7 days after Buyer receives the Notice or prior to the closing, whichever firs t occurs, and the earnest money wi ll b e refunded to Buyer. ( 3) The S eller is not required to furnish t he notice und er the Texas Property Code. The parties checked option (1), and the record reflect s that the Millhollons provided a notice to the Doug

lases

. Subsection D, “ Acc eptance of Pro pe rty Condition, ” once more instruct s the parties to check one box only and lists the following options : (1) Buyer accepts the P roperty in its presen t condition

. (2) Buyer accepts the Property in its present condition provided S e ller , a t Seller ’ s exp ense , shall complete the following specific repairs a nd treatments: _____

__________. (Do not insert general phrases, such as

‘ subject to inspections ’ that do not identify specific repairs.) NOTICE TO BUYER AND SELLER: Buyer ’ s agreement to accept th e Pr ope rty in its present condition under Paragraph 7D(1) or (2) doe s not preclude Buyer from inspecting the Prop erty under Paragraph 7A, from negot iati ng rep airs or treatment s in a subsequent amendment, or from terminating this co ntract during the Option Peri od, if any. T he D o uglases checked the first o p tion unde r subsecti on D

. In Volmich v. Neim an , No. 02

- 12

- 00050

- CV, 2013 WL 97877 0, at *3 (Tex. App.

— F ort Worth Mar. 14, 2013, no pet.) (me m. op. ) , and again i n Naquin v. Cellio , No. 02

- 16

- 00117

- CV, 2017 WL 2178 873, at * 2 (Tex. App.

— Fort Worth M ay 18, 2017, no pet.) (m em. op.), we acknowledged that we, and other Texas courts , have
inte rpreted t he contract language , “ in its present c ondition , ” to be an a greement to purch ase the property “ as is , ” and t hat a valid “ as i s ” ag r eement , with some40

except ions, will prevent a bu yer from holdi ng a seller liable if the item sold t urns out to be worth less t han the pr ice paid.
H owever, an “as is ” c lause may not be enforced when the b uyer is induced to
enter into t he contract b y a selle r ’ s fraudulent representa tion or concealment of
information

. Prudential

, 89 6 S.W.2d at 16 2 (holding that a buyer who agrees , freely
and withou t fraudulent induc ement, to purchase commercial real estate “ as is ” cannot recover damages from the sell er w hen t he p roperty is later di sc overed not t o be in as
go o d a condit i on as he believe d i t was when he inspected it before the sale) ; 35 see Warehouse A ssoc

s . Corp. Ctr. II, Inc. v. Cel otex Corp. , 1 92 S.W.3d 225, 230

– 31 (Tex

. App.

— Houston [14th Dist.] 2006, pet s . den ied) ( con cluding that the Prudential exceptions “ still stand, subject to a small exception to the fraudulent

- inducement
except ion car ved out by Schlum berger [ Technology Corp. v. Swanson , 959 S.W. 2d 171 ( T ex.

35 In P rudential

, th e bu yer , a knowledgeable re al estate investor wh o owned an inte rest in at least 30 commercial buildings and who was pres ident o f a Da ll as commercial propert

y man agement firm that had deve loped, built, re habilitated , own ed, or man aged properties valued alto geth er at a round $100 mil lion , disco vered that the four

- sto ry o ffice building that he bought “ as i s ” contained asbestos two years after the pur chase. 896 S.W.2d a t 159. Under the terms of the par ties ’ sales agreement, the bu yer h ad acknowledged that he was not “ relying upon any rep resen tation, st atement or other ass ert ion with respect to the Prope rty condition ” and w as instead relying o n his own “ examination of th e Property. ” Id. at 16 0

. The
cou rt not ed that “ [w]hile it sho uld n ot be necessary in every ‘ as is ’ provision to go into this m uch deta il, [the] cont ra ct l eaves n o do ubt exa ctly what [the buyer] agreed to , ” whi ch n egated the ca usation element of his DTP A and fraud claim s . Id. a t 161 (ob s erving that t he buyer did not assert fr au d in the inducement of the “ as is ” agreement). The c ourt also obser ved that there w as n o evide nce that the seller actua lly knew about the a sbe stos. Id. at 162.41

1997) ] ” ) ; see also Volmich , 2013 WL 97 877 0, a t *4

. T hat is, a seller canno t assure a buyer of the property ’ s co ndition in order to obtain th e buyer ’ s agreement to buy it

“ as i s ” and then disavow the ass urance t hat proc ured the “ a s is ” agreement
. Prude ntial , 896 S.W.2d at 162

. And e ven absent f

rau d u lent inducement , an “as is ” cl ause still may not be

en forceable dep ending on the nature of the transaction and totality of the
ci r c umstances s urroun ding the agreemen t, inclu ding the parties ’ sophist ication an d whether they were represented by counse l, wh et her t he contract was made at a rm ’s length, the pa rties ’ relative ba rgaining powe r a nd whether the contractual language

was freely n egotiated, and wh ether the clause was an important part of the parties ’ barga in and not simp ly “b oilerplate. ” Id. at 16 2 ; se e Schlumb erger , 959 S.W.2d at 180

– 81 ( empha siz ing , with referenc e to Prudenti al , tha t a disclaimer o f reliance will not always
ba r a fraudulent inducement cla im and discussing sophisticat ed business persons ’
representa tion by “ high ly c ompet ent a nd ab le lega l counse l ” in arm ’s length
transaction

) ; see also Italian Cowboy Partners, Ltd. v. Prud entia l Ins. Co. of Am. , 341 S.W.3d 323, 3 32 (T ex. 2011) (explaining that while fraudule nt in ducemen t is almost always grounds to s et aside a contra ct de spite a me rger cl ause, in certain circu ms tance s, it may be pos sible for a contract ’ s terms to preclude a frau dulent inducement claim by a
clear a nd sp ecific disclaimer

- of

- reliance clause , i.e ., wh en soph isticated parties represented b y counsel disclai m rel iance on r epresen tation s about a specific matt er in dispute ) ; Volmi

ch , 2 013 WL 97877 0, at *3 (citing Prudential , 896 S.W.2d at 161 )

.42

Regardless of the presence of an “ as is ” clause, how ever, w hen false and
frau du lent repres entations are m ade about a contract ’ s s u b ject ma tter but the person
to whom t hey are made conducts an independent inv estigati on into the same matters covered by the representation s before closin g and discovers the representations ’ falsity , t he causation and rel ianc e elements of DTPA and f raud cl a ims are negated

. Volmich , 2013 WL 97877 0, at *5

– 6; 36 s ee Mead v. Gray , No. 02

- 16

- 00177

- CV, 2 017 WL 1738066, at *3 (Te x. App.

— Fort Worth Ma y 4, 2017, pet. denied) (mem. op.) ( “ In
det ermining whether a b u yer ’ s independent insp ectio n conclu s ively negates re l i ance

an d causat

ion in a buyer ’ s claim based on a se lle r ’ s fai lure to disclose information,
courts look to wheth er the buyer ultimately pos sessed the same information and knowledge a s the seller. ” ) ; 37 se e also Cellio , 2017 WL 2178873, at * 5 ( “ [T] he

36 I n Vol mich , we h eld that even if the plain tiff s had shown evidence of the defendants ’ misrepres entation s about , or their failure to disclose , a roof leak , summary judgm ent in th e d e fenda nts ’ fa vo r was not erroneous when the independent inspect ion commissioned and re viewed by t he p lain tiffs before purchas ing the home

“ reve aled num erous existi ng or past pr ob le ms with the home, inclu ding previous ro of repa irs, leaks, and mo istur e da ma ge an d moist u re

- related deter ioratio n throughout the hous e . ” 2013 WL 978770, at *7. We made clear, h owever, th at we w ere not holding that an ind epende nt inspectio n would alway s ba r DTPA and fraudulent i nducement claims

. Id. at * 8.

37 In Mead , we affirme d th e trial court ’ s summary judgment for the sellers when t he buyers , o ne of wh om was a license d realt or , retained their own proper ty inspector who perform ed an independent inspection of the home and noted “ sign s of mi nimal found a tion settlement ” in two ar eas of the hom e, as well as “ d eficien cies” such as hairline cracks an d patching on interior wal ls, cra ck s in the exterior brick veneer, open caulk joints around the exterior sides of windows, a cracked floor tile, open grout join t s and caulk sep ar ation in the kitchen ’ s backsplash , and deficie n cies in five interior43

indepen d e nt insp ection t hat Naquin commi ssioned and reviewed be fore de ciding t o purchase the home supersedes any alleged misre present ation or failu re to disclose by
the Cellios. ” ) ; 38 Williams v. Dardenne , 345 S.W .3d 118, 125 & n.4 (Te x. App.

— Houston [1st Di st.] 201 1 , pet. denied) ( stating that a buyer ’ s independent ins pe ction precludes a showing of causati on and reliance if it reve als to the buyer the sa me information that the seller allegedl y failed to disclose a nd observing that some of the courts have
articul ated differe nt tests to re ach the same general rule)

.

and th ree e xterior doors

— the same p roblems t hat the buyers cl aimed they only discovered after moving into the home . 2017 WL 1738066 , at *1 , *3

– 4

.

38 In Ce l lio , the inspection repor t prepar ed by the pla intiff ’ s i nspector “ revealed numerous existing or past problems w ith the home, i ncluding pr oblems wi th the home ’ s str uctural systems , its grading and drain age systems, and its sp rinkler system, ” and “ that the pool side commode nee ded f urther e valuat

ion and possible correction ” because it “ appeared to be ‘ exces sively loo se at the fl oor mount. ’ ” 2017 WL 2 178873, at *1, * 5

. The plaintif

f purchase d the house “ in its [then] present conditio n ” after she rec eived the r e port. Id. at *1. Accord ingly , two ye a rs l ater, whe n the pla intiff sued , alleg ing that the defendants ha d m ade mis repr esentations in their di sclosure s about th e p lumbing and septic s ystems, the pool house, an unpermitted sprinkl er system, and i mproper drai nage, we upheld the tria l cou rt ’ s sum m ary judgment for the d efendants despite the plaintiff ’ s allegation s t hat the poo l house comm ode “ fl ushed untrea ted sewa ge onto the lawn

. ” Id. a t *1

– 3, *5. But cf. id

. at *5

– 6 (Sudderth, J. , concurring) ( sta ting that “ [i] t w as only when Naquin disc overed t o ilet paper and hu man f eces in her back yard behind the pool house t hat she reali zed somethin g was amiss ” and th at a toi le t with a lo ose base wou ld not put a buyer on n otic e that the
s ewage p ipes would dump raw sewage in to the back yard ). The concurrence no t ed that be cause Na quin di d not produce ev idence in response to th e Cellios ’ no

- evidence
summ ary jud gment moti on to expla in why it was reas onable for her to rely on the Cellio s ’ misrepres entations rather than t he inspection re port and why the Cellios ’
conc e alm en t of the defe ct rather than the insp ector ’ s failure to disco v er it caused her damages, the tri al court d id not err by granting summar y judgment

. Id. at *7

– 8 ( Sudderth, J., concurring).44

C. Applica ti on As set out by the parties , we must consider whether the M illhollon s made misrepresentations and whether the Douglases could have relied on th ose misrepresentat

ions , as well as w hether the Dou glases ’ failure t o plead a common law
f raudulent inducement claim can defeat their recovery and wheth er the Mill hollons
breached the contr act.
1. Misrepresentations
The Millhol lons ar gue th at no evidence was in troduced to prove that the ir rea l

e state disclosu res w er e false when made and that the o nly evidence is that they mad e repairs to the drainage and s ep tic sy stem bu t that there were no p ro blems after the repairs a nd no kn o wn defe cts or imp r oper drainage on October 19, 2013, when th ey signed the dis cl osure s. And t hey cont end that the circumstantial e videnc e of what
occurred a t the hom e after t he April 24, 2014 closing is insufficient to suppor t th e j ury ’ s answers because the Do uglases wer e required to prove that the M illhollons
knew on Octo ber 19, 2013, th at thei r representations were false 39 an d that the
Millhol lons knew that water goin g across th e driveway would damage i t an d create imp roper drai nage.

39 The Millh o llons argue that the Do uglases presented no eviden ce that the Millhollons had used the facilities during a significant r a in a nd that the D ouglases o nly called r e pair companie s in 2015 when the rainfall i ncr ea sed signifi cantly

.45

Over the course of four days of evidence, the jury learned that Gary had
ordered five inspections before he purc hased the home but only disclosed two and
that one of th e inspections he did not subsequently disclose to the Douglases was a November 29, 201 1 inspection of the home ’ s septic system by a c e rtified s eptic
in spector, who recommended further inspectio n of th e system. Ga ry also did not
reveal until aft er closing that i n Februa ry 2012, h e opted not to hir e a landscape engi neer or archite ct to remedy ba ck yard floodi ng , some of which m ight have been caused by his installation of a wr ought

- iron fence on a concret e footer, because it would have cost $17,000

. 40 I nstead , he paid $4,425 to Martinez , who had no f ormal
education as a landscaper, a rchitect, or engineer, t o re move a berm that b locked the
flow of water from the driv eway an d to install a drain that w as supp osed to keep

w ater from pooling in the back ya rd. While both Carole and Gary testifie d that they had no other pr oblems with the p r operty ’s drai nage afte r these repairs, the ir changes

sent mo re water down the driveway , 41 w hich ultimately led to the cr acki ng of the driveway ’s concrete. Gary a lso chose to rely on Maverick Homes ’ s representati ons that it had been properly maintaining the sept ic system when he purchased the home

40 The D ouglases ultimately paid almost $12,000 to correct the dra inage system.

41 At some point, Gary also cap ped one of the sept ic system ’s two spri nkler heads to ke ep efflue nt from running down the dri veway , w hich was inconsistent with the design approved by th e county, and thus illegal , but Gary would not have kno wn t hat because he never looked into the system ’s design.46

and then subsequently settled his dispute with M averick Homes about both the
dr aina g e and the septic system problems for $2,000. Although Gary denied having heard Hughe s ’s statement about the wro ught

iron fence ’ s co ncrete footing causing water to ba ck up into the ba ck yard, the jury
could have chosen to recall Hughes ’s statement th at it w as “ like put ting a softball in a
toilet ” and flushing, leading to an overflow (floodi ng) , and Alan ’s testimony that
before he a nd Peggy replaced the septic system and corrected the drain age system, water would pool around the septic system tanks sev enty percent of th e time , to

co nclude that the Millhollons had been l ess than candid about the cont inuin g drai nage problems o n the property when the y sign ed the disclosures in October 2013

. 42 Further, i n Marc h 2013, the Millhollons called a plumber becaus e their toil et

was “bubbling and no t flushing properly , ” and when the plumber returned to t heir
hom e in August 2013 on a nother service call , he dete rm ined that the re was a static

s ewer line. Gary said that after he hi red people to make repairs to the sept ic system,

t hey ha d no other proble ms, even though he took no action to change the slope of
the s ew er li ne. I t rai ned 2.5 inche s one day at the end o f September 2013 , 1. 1 inches
on Oct ober 14, and .82 inches on October 16 , just a few days before the Millh o llons

42 The record reflects that th ere was also sign ificant r ain on October 27 (. 62 inche s), Nov e mbe r 5 (.45 inches) , Novemb er 6 (.46 inches), Novemb er 22 (1.22 inches), November 25 (.58 inches), December 6 ( .6 inches), December 7 (. 63 inches), and De cember 21 (1. 97 inches) but very little rain in January 2 014 (.08 for the entire month), and v

irtuall y no rain at all in Fe br uary 2014 (.13, .01 , and .02 resp ectively, on February 4, 9, and 15)

.47

signe d the d isclosures on October 19, 2 013

. While Carole testified that their decision

to sell the house had been motivated by her hip repl acement, the jury could have
found the timing of the Mill hollons ’ decision to sell was also triggere d by the sept ic
syste m ’s ten dency to stop f unctioning properly during a heavy rainfall . The jury
likewise was e ntitled to find from the evidence in this re co rd that the Millhollons ’
failure to make accurate discl osures , reveal unflatt ering inspections, or mention th e ir
histor y with the house ’ s drainage and septic s ystems at t he time that the Douglases
had the house and septic system inspected was done kno win gly to induce them into entering into the contract an d took advantage of the Douglases ’ lack of knowledge to
a gros sly un fair de gree. See City of Keller , 168 S.W.3d at 8 19. Accordingly, w e overrule this portion of the Millhollons ’ t hree issues.
2. Reliance
T he Millhollons argue that no evidence was in troduced to prove that the Douglases relied on t he disclosures r ather than t he expe rts they hired to inspect the
home

. The Douglases r espond that because their inspections did not reveal t he
defects that w ere no t disclosed or that were misrepresented, th eir reli anc e on the
d isclosures , and thus the c hain of caus at ion , was not defeate d , arg uing th at the cases
cit ed by the Millhollons “ all involved situations where pre

- closi ng in spections or
reports tu rned up the exact probl ems whic h were the subject of later DTPA cla ims, or
at least the conditions that were the su bject of the buyers ’ c lai ms . ”48

“[ W ] hen a person ma kes his own investigation of the facts, and knows the
representa tions are false, he cannot, as a matter of law, be said to have relied upon the misrepresentations of another. ” Camden Mach. & Tool, Inc. v. Casca de Co. , 870 S.W.2d
304 , 311

– 1 3 (Tex. App.

— For t Worth 1993, no writ) (emphasis added) (holding that
seller ’ s f ailure to disclose prior fo undation repair could no t suppo rt recovery w hen buyer was aware, before sale, that foundation had significant prob lems ) ; see also Cole v. John son , 15 7 S.W.3d 856 , 85 7

– 59 , 861 (Tex. App.

— Fort Worth 2005, no pet.) (holding
trial court d id not err by granting summ ary ju dgment for sellers when seller s provid ed ample disclosure of found ation repair history ).
We addressed a simi l ar set of facts, inclu ding a selle r ’ s making disclosu res , in
Kessler v. F

anning , 953 S.W.2d 51 5 (Tex. App.

— Fort Worth 1997, no pet.). T h e Fannings bought th e Ke ssler s ’ home after visit ing th e house on several occasions and having the house inspected by a professional insp ector
. Id. at 51 7

. The Kes slers
checked “ no ” on the di sclosures with regard to w hether they were aware of improper
dra inage or p rev

ious st r ucture repair s on the property. Id. at 518. It rained during the inspection, but the Fannings we r e not made awar e of, a nd did not s e e, any drainage problems on the prop erty before they moved in, and the inspection did not include
th e yard or it s drai na ge “ because that was not a concern a t that time. ” Id. at 517.
H owever, the Fannings saw standing w a ter or “ ponding ” almos t immediatel y after

m oving in and called th e Kessle r s , who acknowledged that t h e y w ere aware of it

. Id.
at 517

.49

The Fan nings sued the K es s lers for vi olating th e DT PA , claiming that they had
made m isrepresentations and omissions abo ut the drainage and co ndition o f the
hom e to induce the Fan n ing s to buy it. Id. at 518. A j ury found that the Kesslers had violated the DTPA by engag i ng in a “ false, mis leading, or de ceptive act or practice
that was a producing cause of damages ” to the b uyer s. Id. at 5 20

. O n appeal, the
Kes slers argued , amo ng other things, that any producing cau sal connection had been
b r oken by the Fannings ’ reliance on the inspection

. Id. at 519. However, we stated,

“ The possibility of an independent investigation th at m ight have unco vere d fraud does

not preclude recovery of damag es for fraudulen t representati ons , ” and held that the
F a nnings ’ inspection was not a de fense t o the misrep res en ta tion claim. Id. ( emphasis
added ) (citing Koral Indus. v. Security

- Connecticut Lif e Ins. , 802 S.W.2d 650, 651 (Tex.
1 990) (per curiam) ). 43 In a later portion o f the opinion , we noted, “ Th e record sh o ws that standing water would no t drain from the ya rd after pe r iods of heav

y rains, a

43 In K oral , the in sura nce company refused to pay benefits based on fra udulent inducement and misrepre senta tio ns after the compa ny ’ s insured , who had f a iled to disclose damaging m edical history, die d with in what the insu r er claimed was the contestable period of t he policy. 802 S.W.2d at 650

– 51. The court noted that failure to use due diligence to susp ect or d isc over someone else ’ s fraud does not bar th e def e nse of fraud to the co ntract because

— in t he abs ence of knowledge to the contrary

— the injured par ty wou ld h ave a right to r ely and act upon the f alse statements ; “ the wrongdoer in such a case can not be hear d t o complain that the other should have dis b eliev ed his solemn statemen ts. ” Id. at 651 ( quotin g W. Cottage Pian o & Organ Co. v. Anderson , 101 S.W. 1061 , 10 64 (Tex. App.

— Fort Worth 1907, wr it denied)).50

condition that a one

- time inspection may not revea l wi thout notice of th e pro blem. ”
Id. at 520.
The M illh ollons direct us to Bar tlett v. Sch midt

, 33 S. W.3d 35, 38

– 40 (Te x. App.

— Corpus Christi

– Edinburg 20 00, p et. deni ed), to support their a rgumen t that a buyer ’ s decision to undertake an y independe nt inv es tiga tion indicates tha t he is not relyi ng on the sel ler ’ s representation s about the property. Bartlet t was an appeal of a judgment on a jury verdict for the buyer

- plaintif f , a G erman citizen, who had purchased proper ty intend ing to use it fo r commercial p urposes
. Id. at 36

– 37 & n. 1

. T he seller h ad o r ally advised the buyer that there were no use restrictions on t he property; the title compan y l ikewis e repre sent ed that th ere were no use r estrictions on the property , as did the buyer ’s at torney
. Id. a t 36

– 37. There were, in fa ct, restrictions
li miti ng the p roperty to resi dential use only , and a jury found the se ller liable for negligent misrepre sentation , fr aud, and DTPA violation s . Id. at 37.
Because the buyer had his own coun sel review the convey ancin g documents

“ specifica lly to assure that no r est rictions woul d interfere with his development of the
property for his intended purpose, ” the co urt he ld that he did not rel y on the se ller ’ s representations, defeating his fraud and negligent misrepresen tatio n claims. Id. at 38.
And b ecause the bu yer und e rtook his ow n investigation after the sel ler ’ s representatio ns and expressed his relian ce upon the t itle commit ment rather than the
seller ’ s representations , his DTPA claim was like wise defeated because he c ould not show the prod ucing cause element

. I d. at 40

– 41. No twithstanding Bart lett ’ s broad51

language, however , the Corpus Christi

– Edin burg court ’ s legal analy sis is m ere ly a
repeat of the general rule that a buyer ’ s independent inspection precludes a showi ng of causation and re liance if it reveals t o th e buye r the same information that the seller allegedly failed to discl o se. See W ill iams , 345 S.W.3d at 125 ; see also Ple asa nt v. Bra dford , 260 S.W. 3d 546, 553 n.3 ( Tex. App.

—

Austin 2008, pet. denied) (e xp la i ning, with regard to B ar

tlett , that the Corp us C hr isti

– Edinburg c ourt “ was not stating that any evidence of an investigation de f eats an alleg ation of reliance, b ut rather that th ere was lega lly sufficient evidence of an un impaired in vestigation by the buye r sufficient to
show a lack of reliance on the s eller ’ s rep rese ntations ” (emph asis add ed) ) ; Celotex , 192
S.W.3d at 244

– 45 (poin t

ing out that Bartlett did not inv olv e as

- is or wai ver

- of

- reliance language an d did not cite Pr udential or Schlumberger and holdi ng that to t he extent
Bar tlett held that a buyer ’s in depend ent inves tigation, without more, is sufficient as a
matter of law to defea t a frau dulent induc ement as ser tion, it was c ontrary to Prudential , Sch l umberger , and cas es cited therein

).
The Mill hollo ns also direct us to t he portion s of the Cellio and V olmich opi nion s in which we quoted Bartlett , stating, “ The common thread o f the decisio ns reaching
this con clu sion is that, regardless of the result of his investigatio n , the buyer ’s decision to
und er tak e such a n investigatio n indicates that he or she is not re lyin g on the seller ’s representations about the property

. ” Cellio , 2017 WL 21 78 8 73, at *4 (quoting B art lett , 33 S.W.3 d at 3 8 (emphasis added) ) ; Vol mich , 201 3 WL 978770, at *5 (quoting Bartlett , 33 S.W.3d at 3 8 (emphasis added) ). However, in the im mediat ely preceding sentence52

in both opinions , we made clear that t he inde p endent invest igation must be “int o t he

matters cov ered by the [allegedly fals e and fraudulent] representations

. ” Cellio , 201 7
WL 21 78 873, at *4 ; Vol

mic h , 201 3 WL 978770, at *5

. Th at is, it is the investigation
int o the same matters covered by the false o r fraudulent representation s that br eaks the
chain of causation and reliance on those represen tations

. See Cellio , 2017 WL
2 1 78 87 3, at *4 ; Vol

mich , 201 3 WL 978770, at *5

. He re, the Dougl ases ’ home inspector visited th e home on a clear and sunny day

t owards the end of a month when vir tually no rain fe ll , and three days later, a n aerobic septic specialist inspected the septic syst em and reported that i t was “working fine. ”
Bec ause the Doug

lases did not know the pro perty ’s histor y of drainage and septic
system pr oblems, they did not kno w to direct their home inspector or septic s ystem specialist to look for specific issues wit h the property ’ s drainage , to check the s ewer line ’s slope , or to check any other problems s pecific to the inner workings of the

se ptic sy stem

— a problematic “ bl ack box ” according to the sept ic system report t hat
the Millhollons did not disclose. While the ho me inspector did note so me minor
issue s with the h o me ’s gutters , the Dou g lases did not know to a sk him to determine
how water drained from the back yard, and the l ack of rainfall precluded the

s ubsequent d rainage and septic issues f rom arising for either of t heir ins pectors or fro m their firsthand discover y prior to closing. See Kessler , 953 S.W.2d at 517

– 20

. Fu rther, the only plumbing issues identified by the inspec tor pe rtain ed to hos e bibs missing their ba ck

- flow/anti

- siphon devices and a problem with the master53

bathroom ’s hydr o

- mas sage therapy tub , i .e ., nothing to do with the toilet that had a history of bubbling or the s ewer connection to the septic tank

. And A lan testified
that while he and P e ggy had r elied on t he home inspection report for the re pair
add endum, they otherwi s e relied “ 100% ” on the Mi llhollons ’ di sclosures , and the jury was entitled to believe this testimony. Accordingly, we overrul e this portion of the
Millhollons ’ three is sues. 3. Frau dulent Inducement
The Millhol lons ar gue th at t he Doug lases ’ fai l ure to plea d and sub mi t t o the jury a n issue o n fr aud in the inducement precluded the m from defeating the “ as is ”
clause and obtaining a j udgment against the m . Frau dulent inducement is a species of common law fraud t hat shares the same
basic e lements as fraud but t hat arises on ly in the con text of a contract. Anderson v.
Durant , 550 S.W.3d 605, 614 (Tex. 2018) (explain ing that Texas law has long imposed a duty to abstain from inducing another to enter into a contract through the use of
fraudul ent misrepresentations ). Thus, i n a traditional ( common law ) fraudulent
in ducement clai m , the pl a intiff must prove both the exis tence of a contract , se e id. , and
that (1 ) the defendant mad e a representation to the plaintiff; (2 ) the repres entation

was mat erial; (3) the rep re se ntation was false; (4) whe n the defen dant made the representation, he knew it was false or ma de i t reck less ly , a s a pos itive assertion ; (5)
the defend ant made th e rep res enta tion with the intent that the plai nt iff act on it; (6)

t he pl aintiff relied on the representation; and (7) th e representation caused th e54

plai ntiff inj ury. V

olmich , 2013 WL 97877 0, at * 4 (ci t ing Exxon Corp . v. Emerald Oil &
Gas Co. , 348 S.W.3d 194, 217 (Te x. 2011) (op . on reh ’ g)) ; see also Archer v. Griffith , 390
S. W.2d 735, 740 (Tex. 19 64) ( explaining that “ [a] c tual fraud usually involves dishonesty of purpose or intent to deceive ” ).
The D ouglases did not plead a traditional fraudu len t inducement claim, and a question on traditional frau dulent ind ucement was not s ubmitted to the jury. 44
However , the Douglases a lso did not plead a breach

- of

- contract or warranty claim

. I nstead, they p leaded a statutory fraud claim , which r equire s th a t the b uyer be i nduced
int o ent ering into the con tr act by relying on a false re pre sen tation of a past or ex ist ing
material fact , an d they pleaded a DTPA c laim , one basis for which

— as s et out in the jury charge

— r equired a f inding that the seller ’ s failure to disclose info rmation the

s eller kn ew about the pro pert y was intended to i nduc e the buyer into the transac tion.
See Tex. B us . & Com

. Code An n. § § 17.46 (a), (b) (24 ) , 17 .50(a)(1) (B), 27.01(a)(1) ; Payne
v. Hi ghland Homes, Ltd. , No. 02

- 14

- 00067

- CV, 2016 WL 35 69533, at *8 (T ex. Ap p.

— Fort Worth Ju ne 30, 2016, no pet.) (mem. op.) ; see also Lind ley v. McKnight

, 349 S .W.3d 113, 128 (Tex. App.

— Fort Wort h 2011, no pet.) (obse rving that the element s of statutory fraud are essentially identical to those of com mon law f raud except that

sect ion 2 7.01 does not req uire proof of knowled ge or recklessness a s a prerequisite to

44 In their rep ly brief, the Millhollons clarify th at , pursu a nt to the pa tter n j ury charges, a jury ques t

ion for fraud in the induce ment is submitted after a defense li ke t he “as

- is ” clause is raised.55

th e recovery of actual damag es) ; Pier re v. Tilley , No. 0 2

- 0 6

- 00 3 08

- CV, 200 7 WL 2067757, at *3 (Tex. App.

— F ort Worth July 19, 2007, pet. denied) (mem. op.) ( same ) ;

s ee generall y Cellio , 2017 WL 2178 873, at * 1

– 4 (observi ng that the plaint iff ra ised only
DTPA and statutory f

raud claims bu t address ing elements of common law fra ud

- in

the

- inducement claim in discu ssio n of “ as is ” clause and relia nce )

. In thei r reply brief, the Mil lhollons compl ain tha t unlike common law
fraud ulent inducement, “knowledge of the fal si ty ” and “int en t ” t o induce action are

not e lemen ts of statutory fraud under B usiness and C ommerc e C od e S ection 2 7.01

. But the legislature has spec ified that in the stat utory fraud cause of action, there must
b e a fal se representati o n of a past or existing mater ial fact that is mad e “ for t he purpose of ind ucing ” anothe r to enter into a contract , i.e., made with the intent to induce the other party in to entering into the c ontract. Se e Tex. Bu s. & Com. Code
A n n. § 2 7.01 (a)(1)(A)

. An d if t h e actor ma kes the false rep resentation with “ actual

awareness ” of the fals ity, he is liable to the defrauded person f or exemplary dama ges. Id. § 27.01( c ). Likewise, a t hird perso n who h as actual aw areness of the falsity of the

acto r ’ s r epresentati o n , who fa ils t o disclose it to the d efrauded perso n , and who
benefits from the false representation also commits fraud an d is liable to the
defraud ed person for ex emplary damag es. Id. § 27.01( d). And und er the DTPA,
f ailing to disclose information about the property that was kn own at the time of the
sal e
— i f such failure to disc lose was intended to induce the plaintiffs to enter into the56

tran saction that they would not have oth erwise if the inf ormation had been
disclos e d

— r ais es both the intent to induce an d knowl edge o f the false representation. The jury was so charged and t hus found both “ knowledge of the falsity, ” i.e.,

“ actual awareness, ” and intent wit h regard to the frau dul ent

- inducement el ements in
th ese statutory caus e s of action

. A ccordingly, w e ov errule this portion of t he
Millhollons ’ three issu es . Based on our resolution of this portion of their three issues,
we need no t address their argument about the “ as

- is ” claus e ’ s vi ability bas ed on the parties ’ sophist

ication o r t h e D o u g

l a s e s ’ r e s p o n s e t h a t the “ as

- is ” clause w a s

c o n t r a d i c t e d a n d s u p e r s e d e d b y t h e c o n t r a c t ’ s r e p a i r addendum. See Tex. R. App. P.
47.1.
4. Breach of Contract
T he jury found that the Millhollons were in defa ult with regard to “ any of the
material contractual ob li gations to t he Do uglases at the time of t he closing between the par ties

. ” The Millhollons argue that th is jury response should be disregarded
because there was n o e vidence that they breached the contract when the disclosures were not part of the co ntract or incorporated t he rein and lacked mutual promissory obligations ; t herefore , they should have been awarded their attorney ’ s fees

. Th e Douglases respond tha t all parties under stood and agreed that th e disclosures were an integral part of the contra ct under paragraph 7(B)

. Specifically, t hey refe r us to Gary ’ s testimony t hat he understood that the d isclosu res were part of the co ntract and to
Alan ’ s testimony reflecting t he same . T he D o u glases argue that the Millhollons ’57

“ patently f

alse disclosures ” were a b reach of the par ties ’ contract on the da te of closing. The jury c learly agreed with th e Douglases. The co ntract required that th e Douglases “ receive [ ] the [section 5.008] notice , ” which was supposed to disclose to
th em the Millhollons ’ knowledge of the condition of the property as of the date they signed it on October 19, 2013. The Millhollons cla imed that the ir disclos ures were

true . The Douglases argued that the disclosures were false in light of the property ’ s septic system and drainage condition s when it rained

— wh ich the Mill hollons were aware of as the property ’ s residents and as the owners w ho had made various rep air
decisions and which the Douglases discovered only after closing

— and they put on
evidence about rain before and after the disclos ure

- signing date , wh ich was less than

two ye ar s aft er the M illhollons moved in on Ja nuary 17, 2012. Beca use the jury had
suffi cient evidence before it to determine the Millhollons ’ credibility , we overrule this portion of the M illhollons ’ third issue. See City of Keller , 16 8 S.W.3d at 81 9.
5. Damag es In the remainder of the ir third issue , the Millhollons challenge the sufficiency
of the evidence to sup port the jur y ’ s findings to Questions 11, 12, 13, 14, a nd 15 , arguing that their conduct was not the proximate cause or produc ing cause of any damages

. In response to Ques ti on 11, t he jury identified $29,320 as the “ benefit of the bargain ” damages s u stained by the Douglases and the same amount as their out

- of

-58

po cket expenses. The trial court rendered a judgmen t for the Dougla ses for $29,320
i n actua l damages.
The Millhollo n s argue that th e evidence shows that it wa s the Douglase s ’ fail ure to maintain the s eptic sy stem pursuan t to Lone Star Aerobic Services ’ July 2014
recommendations tha t led to their replacement of the system and that there was no

e vidence that the repairs t o the dri veway or drai nage systems were ne cessa ry as a

r esult of the Millhollons ’ conduct

. Gary ’ s undis closed November 29, 2011 se ptic system report indicated that the
sept ic system was function ing adequa tely but had suffered fr om p oor mainten ance , and t he jury could have ch osen to disbelieve that Maverick Homes had properly

m aintai ned the system and to believe that the M illhollons ’ repairs to the system had
be en merely band

- aid s to nurse the faulty system until the next rain , re nder ing their
disclo sures false a nd fra udulent , and thus the pro ximate or producing cause of the Douglases ’ damages

. See id. The Douglases obtaine d more than one bid to replace the system

— one of the bids was $12,260, while they op ted to go with the lower , $9,860 bid

— after t hey so licited input from more than o ne company about what to
do

. The D o uglases also sought recovery for the se ptic system testing and inspections ($85 for Harrington Services, $175 for Helton

- Ingram) and for a s eptic system
compressor that had burned u p i n the interim ($ 495).
The M illhollons did not dispute having changed the house ’ s drainage, and the Douglases presented evidence that the se change s
— ra ther than fixing the problem

—59

made it wor se. They also presen ted evidence that they s pent $5,870 to re pla ce the
concrete that had cracked as a re sult of water draining over it and that they spent $9,885 for a new drainage installation and $2,000 for Martinez to complete the
connection of the originally installed Fre nch drain to the street

. In additio n to testimony , the jury ha d photographic evidence to consider with regard to the
extension of the drain to the street and of th e geography of the house and back yard. Based on all of the evidence, the jury could have re asonably concluded t hat the
Millholl ons ’ conduct r equired the Douglases ’ corrective actions and that the
Millhollons ’ failure s to disclose evidenc ed an unconscion able course of action.
Ba sed on all of these figures supported by the re cord, we conclude that th e Douglases showe d $2 8,370 in out

- of

- pocket dam ages . 45 See Anderson , 550 S.W.3d at 614 (explaining that out

- of

- pocket damages are measured by the differen ce b et ween the val ue expended and the value received, while benefit

- of

- the

- bargain damages are

meas ured by the difference b etween the v alue as repres ented and the value received).
We there fore sustain this portion of the Millhollons ’ third issue in part and reform the judgment to reflect $28,370 in lieu of $29,320

. The charg e predicated Q ue stion s 1 2 an d 13 on the ju ry ’ s affir mative answe rs t o Question s 3 and 6 with regard to whether the Millhollons knowingly en ga ged in

45 Our review of this portion of the Millhollons ’ sufficiency challenge is compl icated by the fac t that ne ither party has directed u s to evid ence to sup port or ch alle nge the full amount of actu al damages awarded by the jury

.60

vio lating the DTPA

. See Tex. Bus. & Com . Code A n n. § 17.45(9) . Under the DTPA,
if the jury finds that the defendant committed his cond uct knowingly, the plain tiff
may rec o ver

— in additi on to the amount of economic damages found by the trier of
fact

— damag es for mental anguish as found by the jury and up to three times the amount of economic damages

. Id. § 17.50 (b)(1) . The jury identified $40,000 each as the sum of money th at s hould be a warded to the Douglases from Gary and from Carole because their conduct was committed knowingly. Having found that the
Millhol lons acted knowingly, t he jury could have awarded u p to three times the

amount of actual dama ges , but a lthough the jury assessed $40,000 aga inst Gary in
response to Question 12 , the tri al court did not include t his amount in the judgment ; accord ingly, we will not consider the sufficiency of the evidence to support the jury ’ s

answer t o Questi on 12.
The tri al court inc lude d in the j udgment the $40 ,000 assessment against Carole
in response to Ques tion 13 , and t he Millhollons do not challenge th e amount itself ; the record reflects that Carole sig ned the discl osures , and ba sed on the rec ord before

us, the jury could have f ound that she did so while kn o wing that they were false

. Accordingly, we overr ule this portion of the Millhollons ’ third issue. Questions 14 and 15 were predicated on the jury ’ s affirmative a nswers to Questions 8 and 10 , with regard to whether the jury fo und by clear a nd convincing evidence that Gary and Carole had actual awareness of the falsity of the representation in Question s 7 and 9 (statutory fraud) . The jury identified $50,000 as61

th e sum o f money to be assessed against Gary as exemp la ry damages i n re sponse to Question 14 , and the trial court inclu ded this amount in the judgment

. In response to Question 15, the jury identified $1,000 as the sum of mo ney to be assessed against
Carole a s exemplary damages , but the trial court d id not inc lude this am ount in the ju dgment , accordingly, we will not con sider the evid entiary sufficien cy to support the jury ’ s answer to Question 15. The j ury charge listed the following factors f or the jury to co nsider in

ca lculating their ex emplary d ama ges award: the nature of the wrong, the character of
the conduct involved, Gary ’ s degree of culpability, the s ituation an d sensibilities of the parties concern ed, the extent to which Gary ’ s conduct offends a publi c sense of justice and propr iety, and Gary ’ s net wor th. No evidence was prese nted about Gary ’ s net worth, but otherwise, the jury had ample evidence to consider with regard to Gary ’ s actions in failing to disclose his superior knowledge of the ho me ’ s situation prior to its sale. Ba sed o n our resolution of th e is sues above, we conc lude that the evidence is sufficient to support the jury ’ s award, and we overrule th is final portion of
the Millhollons ’ third issue.
I V. Co n clusion Having ove rruled all but a portion of th e Mi llhollon s ’ th ird issue , we modify
the tr ial court ’s judgment to reflect $28,370 in lieu of $29,320 in actual damages and
affirm the trial court ’s judgment as m odified

.62 /s/ Ruben Gonzalez R uben Go nzalez Visi t ing Judge

Delivered: November 27 , 2019