Full Opinion (html_with_citations)

                               In The

                        Court of Appeals

            Ninth District of Texas at Beaumont

                         __________________

                        NO. 09-20-00221-CV
                         __________________

               COLTON MACPHERSON, Appellant

                                 V.

                CAROLINA PENA AND
     SUZANNE ANDERSON PROPERTIES LLC, Appellees

__________________________________________________________________

            On Appeal from the 284th District Court
                  Montgomery County, Texas
                 Trial Cause No. 20-09-11021-CV
__________________________________________________________________

                    MEMORANDUM OPINION

     Colton MacPherson appeals a series of summary judgments

involving his purchase of a home granted in favor of Carolina Pena and

Suzanne Anderson Properties LLC (Anderson Properties), the seller’s

real estate agent and the broker through which the agent worked.




                                  1
MacPherson bought the home from Leila Shahin Aglony, and his claims

against her went to trial. 1

      Pena, a registered real estate agent with Anderson Properties,

represented Aglony in the transaction. The transaction involved

MacPherson’s decision to purchase a home Aglony bought in a foreclosure

sale in Montgomery County, which she then had remodeled by contractor.

After her contractors remodeled the home, she sold to MacPherson for

$140,000. In one issue, MacPherson contends the trial court erred in

granting Pena’s and Anderson Properties’ combined traditional and no-

evidence motions for summary judgment because: (1) the “as is” clause in

his real estate contract with Aglony did not negate causation; (2) his pre-

purchase inspection of the home did not negate his reliance on the

representations that Aglony, as the seller, made about the house; (3)

proof that Pena and Anderson Properties intended to defraud him or had


      1Macpherson sued Aglony in   the same suit, but after the trial court
granted Pena’s and Anderson Properties’ motions for summary
judgment, the trial court severed the case involving them into a separate
cause. The case against Aglony was then tried to the bench, but the trial
court in the bench trial rendered a take-nothing judgment against
Macpherson on those claims. In September 2022, the Ninth Court of
Appeals affirmed the trial court’s judgment as the Macpherson’s case
against Aglony. MacPherson v. Aglony, No. 09-21-00004-CV,
2022 Tex. App. LEXIS 7105
, at *1 (Tex. App.—Beaumont Sept. 22, 2022, no pet. h.).
                                    2
knowledge of Aglony’s false representations made by Aglony in her

disclosures about the home are not elements required to prove statutory

fraud or a claim under the DTPA; (4) the summary-judgment evidence

includes proof sufficient to raise issues of material fact on causation and

reliance; and (5) the summary-judgment evidence supports each of the

elements of his claims. We conclude MacPherson didn’t present evidence

raising an issue of material fact on at least one of the essential elements

of each of his claims. We will affirm the trial court’s ruling granting

Pena’s and Anderson Properties’ no-evidence motion.

                  Factual and Procedural Background

     The factual background provided below is based largely on

depositions the parties included in the summary-judgment evidence. The

evidence shows that Aglony buys, renovates, and sells houses. Carolina

Pena, a registered real estate agent with Anderson Properties, testified

that she has represented Aglony in around eighteen transactions.

     As to the home at issue in this suit, Aglony inspected the home

before she bought it in a foreclosure sale in March 2017. When she bought

the home, Aglony acknowledged knowing the home needed repairs before

it could be listed for sale. That said, Aglony also testified she couldn’t


                                    3
recall whether, in the inspection she conducted before buying the home,

she noticed there were any problems with the walls or floors. Even so, a

photograph from a website maintained by agents who are members of the

Houston Association of Realtors, which was taken before Aglony bought

the home, shows a crack in the living room running across the floor.

Except for the pre-purchase inspection Aglony conducted before buying

the home, there is no other evidence showing she saw the home again

until after the contractors she hired completed their repairs.

     Aglony testified she paid contractors around $45,000 to repair the

home before she put it on the market. The work she paid for included

repairing floors with a material known as shotcrete. Invoices from

Aglony’s contractors show that shotcrete was used in more than one of

the rooms of the home. 2 Aglony also paid contractors for work they did

to repair interior walls and to replace five windows on the back of the

home. Aglony’s contractors also installed flooring, carpeting, kitchen




     2Shotcrete, also known as   gunite, is “a mixture of cement, sand and
water applied through a pressure hose, producing a dense hard layer of
concrete used in building for lining tunnels and structural repairs.” NEW
OXFORD AMERICAN DICTIONARY 775, 1617 (3d ed. 2010) (defining gunite
as quoted above and indicating that shotcrete “is another term for gunite”
at page 1617).
                                     4
counters, and painted the inside of the home. Due to the repairs, the

cracks on the floors and the walls inside the home were no longer visible

in a walk-through inspection of the home.

     Pena, as Aglony’s agent, listed the home for $145,00 on an internet

listing, which Pena arranged to have posted in June 2017. The listing

includes general information about the fact the home had been remodeled

and updated throughout. That said, nothing is mentioned about the

shotcrete treatment applied to the floors of some of the rooms. Still,

nothing in the contractors’ invoices shows whether the shotcrete

treatment was cosmetic or structural, and there is also nothing in the

invoices showing how wide the cracks were in the floor. There is also no

evidence that Pena knew the contractors had used shotcrete to repair the

floors or that Pena knew whether the contractors had performed any

structural repairs on the walls of the home.

     In July 2017, MacPherson signed a contract to purchase the home

for $140,000. MacPherson, as the buyer, and Aglony, as the seller, were

represented by separate real estate agents in the transaction. To

document the transaction, the parties used the “Texas Real Estate

Commission (TREC) One to Four Family Residential Contract (Resale)”


                                   5
form. As to the condition of the property, the contract contains two

options. First, a buyer may accept the property “as is,” a term the contract

defines as “the present condition of the property with any and all defects

and without warranty except for the warranties of title and the

warranties in this contract.” Second, the buyer may accept the property

as is subject to repairs that the seller specifically lists on the form. Under

the agreement MacPherson signed, MacPherson selected the first option,

accepting the property “as is.” But even then, MacPherson had the right

to inspect the property at reasonable times after signing the contract, and

he also had the option to terminate the contract for any reason for ten

days. As discussed below, the summary-judgment evidence shows that

MacPherson used a home inspector to inspect the property. Even though

the inspector found several problems during the inspection, MacPherson

did not exercise his option and cancel the contract; instead, he elected to

close on the home.

     The summary judgment evidence includes the “Seller’s Disclosure

Notice,” a standard form used by Houston Realtors. The disclosure notice

Aglony signed states: “Seller acknowledges that the statements in this

notice are true to the best of Seller’s belief and that no person including


                                      6
the broker(s), has instructed or influenced Seller to provide inaccurate

information or to omit any material information.” MacPherson

acknowledged receiving the notice, and he acknowledged “the brokers

have relied on this notice as true and correct and have no reason to

believe it to be false or inaccurate. YOU ARE ENCOURAGED TO HAVE

AN INSPECTOR OF YOUR CHOICE INSPECT THE PROPERTY.”

     In the Seller’s Disclosure Notice, Aglony represented she did not

occupy the property and had never occupied it. Section 1 asks “Are you

(Seller) aware of any of the items listed in this Section 1 that are not in

working condition, that have defects, or are in need of repair?” The box

beside that question is checked “no,” with an additional explanation

stating, “Seller is an investor and has never occupied this property and

is not aware of any previous condition.” Like Section 1, Section 3 asks

“Are you (Seller) aware of any of the following conditions:” Aglony did not

mark the various items in that section either yes or no, and instead,

beside that question she put, “Seller is an investor and is not aware of

any previous condition[.]”

     MacPherson hired Ray Basinger, a TREC-licensed inspector to

inspect the property before closing on the sale, which was scheduled to


                                    7
occur on August 4, 2017. Basinger performed the inspection on July 11,

2017, and he prepared a report, which details his findings. In the report,

Basinger opened and closed all windows and doors to assess them for

racking and movement, and he went into the attic to evaluate whether

there had been any structural movement of the framing. Based on his

inspection, he determined “the foundation appeared to be supporting the

structure as intended.” With respect to the exterior walls, Basinger noted

that the “brick veneer appears to be repaired in several areas throughout.

The repairs appear to be cosmetic but should be monitored. I recommend

asking the current owners regarding the repairs.” As to interior and

exterior walls, Basinger noted that both “appear to have settled in

multiple areas” In his report, he also noted “[t]he doors and windows have

poor gaps around the outside. There are no drywall cracks as the interior

and exterior have been painted. I recommend monitoring for cracks.”

     On July 26, Aglony and MacPherson signed an amendment to the

contract. The amendment required Aglony, at her expense, to complete

the following: “Treat termites, remove high soil lines, repair all noted

[deficiencies in] breaker panel box in the inspection report, install lock in

master bedroom, ground kitchen & bedroom outlets, repair loose oven


                                     8
power outlet, remove paint in outlets.” The parties closed on the sale of

the home on August 4.

     After MacPherson moved into the home in August 2017, he claims

that he “discovered many defects that he did not expect based upon the

information” he was given by Aglony, Pena, and Anderson Properties

about the home. In his Original Petition, MacPherson alleged the

“Defendants provided Plaintiff with the improperly filled out Sellers

Disclosure[,]” and “failed to disclose the repairs that Aglony performed

on the Property, including but not limited to the repairs she performed

on the floors, walls and foundation.”

     In July 2018, Dean Read, a structural engineer employed by MLAW

Forensics and who was hired by MacPherson’s attorney to inspect

MacPherson’s home. Following his inspection, Read issued a report with

these findings:

  1. The foundation has experienced significant movement
     resulting in finishing material distress. The distortion of the
     foundation exceeds the limit set forth in the TEXASCE
     Guidelines. Considering the magnitude of finishing material
     distress (both present and repaired) and distortion, the
     foundation is considered to have distorted materially.
  2. While some finishing material distress was present during
     MLAW Forensics’ site inspection, the minor to moderate
     distress observed is not consistent with the severe distortion
     documented. This inconsistency between the magnitude of
                                    9
     distress and distortion indicates that significant foundation
     movement occurred prior to Mr. Macpherson’s purchase of the
     property. If the foundation movement would have occurred
     during Mr. Macpherson’s less than one year of ownership,
     more significant distress would have been present during
     MLAW Forensics’ site inspection.
3.   Indications of significant finishing material distress repairs
     were observed during MLAW Forensics’ site inspection. Mr.
     Macpherson indicated that he has not performed any repairs
     subsequent to his purchase. Ms. Aglony’s photographs
     indicate that some distress was repaired during the
     “remodel.” The changed condition at the interface between the
     fireplace brick veneer and the adjacent wall and the
     cementitious overlay support this conclusion.
4.   Based on the magnitude of repairs observed and the
     distortion, Ms. Aglony was more likely than not aware of the
     foundation movement. The repairs she made to cover the
     distress would have made it difficult for prospective buyers to
     note the foundation movement. Mr. Macpherson reported that
     additional distress started to appear shortly after purchasing
     the house.
5.   Considering the foundation’s performance, structural
     remediation is recommended. The recommended remediation
     should consist of supporting the entire foundation (perimeter
     and interior) on concrete piles. Due to the magnitude and
     extent of the movement and the proximity of trees to the
     foundation, partial remediation of the foundation is not
     recommended.
6.   In addition to the structural remediation, the following should
     also be performed:
     a. The drainage around the site should be improved to quickly
     convey water away from the foundation and off the site. This
     includes removal of the flowerbed skirting.
     b. Vegetation should be established in areas with no ground
     cover.
     c. The plumbing (including the sanitary sewer and domestic
     water supply) should be tested and any identified leaks should
     be repaired.
                                   10
  7. As with all foundations on expansive soils, routine
     maintenance by the homeowner of the drainage and
     landscaping / ground cover conditions is required. It is critical
     that proper drainage be maintained over the life of the
     structure.

     In November 2019, alleging they violated the DTPA, committed

fraud, fraudulently induced him into signing the contract, committed

fraud in a real estate transaction, breached the contract, acted

negligently, and conspired to commit a fraud, MacPherson sued Aglony,

Pena, and Anderson Properties. Six months later, Pena and Anderson

Properties filed a combined traditional and no-evidence motion for

summary judgment. Their joint motion argues the “as is” clause in the

contract on the home negates causation on MacPherson’s claims as a

matter of law. Second, they argued that by having a professional

inspection on the home, MacPherson could not prove causation or

reliance on his claims that sound in fraud. Third, Pena and Anderson

Properties claimed that MacPherson could produce no evidence to

support his conspiracy claim. Pena and Anderson Properties attached the

following documents to their joint motion:

  • Excerpts from the deposition transcript of Marie McClimans, the
    realtor who represented MacPherson in buying the home;
  • The Seller’s Disclosure Notice, which Aglony signed;


                                    11
  • The One to Four Family Residential Contract for the Property,
    which Aglony and MacPherson signed;
  • Ray Basinger’s July 2017 Property Inspection Report;
  • Excerpts from the deposition transcript of Colton MacPherson;
  • Excerpts from the deposition transcript of Carolina Pena;
  • Excerpts from the deposition testimony of Ray Basinger; and
  • Excerpts from the deposition transcript of Leila Aglony.

     When MacPherson responded to the combined motion for summary

judgment, he argued the “as is” clause in the sales contract and the fact

he had the property inspected did not defeat causation or reliance on his

claim of fraud. As MacPherson tells it, Pena admitted she committed

fraud in a request for admission by admitting she knew the condition the

property was in when Aglony purchased it, by admitting that she knew

Aglony made repairs to the property, and by testifying that she knew

there were cracks in the floor of the home when Aglony bought it, which

Aglony failed to include in the Seller’s Disclosure Notice that Pena filled

out when she listed the home for sale.

     MacPherson attached the following exhibits to his reply:

        • The March 14, 2017, Settlement Statement;
        • The complete deposition transcript of Carolina Pena;
        • The complete deposition transcript of Leila Aglony;
        • The letter Aglony’s attorney sent MacPherson’s attorney after
          Aglony was notified of MacPherson’s suit, a letter that
          includes several exhibits concerning the sale;
        • Aglony’s responses to MacPherson’s Requests for Admission;

                                    12
        • Invoices from contractors that Aglony hired to repair the
          home;
        • The One to Four Family Residential Contract;
        • The Seller’s Disclosure Notice;
        • A declaration, signed by Colton MacPherson;
        • Dean Read’s July 2018 foundation performance evaluation
          and report; and
        • Pena’s responses to MacPherson’s Requests for Admission.

     Generally, Pena and Anderson Properties argue that because

Aglony hired contractors to repair the home, they didn’t know the details

of what was wrong with the home when Aglony placed it on the market

to be sold. They also rely on the “as is” clause in MacPherson’s contract,

claiming MacPherson relied on his own inspector and not what was in

Aglony’s disclosures in deciding to purchase the home. They note that

MacPherson’s home inspector told him there had been settlement in

multiple areas that involved the interior and the exterior walls.

MacPherson, however, elected to close on the sale even though he could

have exercised his option and canceled the deal. The trial court granted

Pena’s and Anderson Properties’ combined no-evidence and traditional

motions, ordering MacPherson as against Pena and Anderson Properties

“take nothing” on his claims.

     A few weeks later, the trial court severed MacPherson’s claims

against Pena and Anderson Properties from Trial Court Cause Number
                                   13
19-11-15649-CV into Trial Court Cause Number 20-09-11021-CV. so that

the summary judgment could become final. This appeal followed.

                           Standard of Review

     We apply a de novo standard to review a trial court’s ruling

granting a motion for summary judgment. 3 When, as here, the trial court

didn’t specify the exact basis for its ruling, we must affirm the “summary

judgment if any of the grounds asserted are meritorious.” 4 In our review,

we are restricted to considering the arguments the nonmovant presented

to the trial court in its written motion or response. 5

     Pena and Anderson Properties combined their no-evidence and

traditional motions into a single “hybrid” motion for summary judgment.6

In one section of its hybrid motion, Pena and Anderson Properties

asserted that MacPherson could produce no evidence to support the


     3Lightning Oil   Co. v. Anadarko E&P Onshore, LLC,
520 S.W.3d 39, 45
 (Tex. 2017).
      4Id.
      5McConnell v. Southside Indep. Sch. Dist.,
858 S.W.2d 337, 343

(Tex. 1993).
      6Motions for traditional summary judgment, filed under Rules

166a(a) or (b), may be combined with Rule 166a(i) no-evidence motions in
what are commonly referred to as “hybrid” motions for summary
judgment. Binur v. Jacobo,
135 S.W.3d 646, 650-51
 (Tex. 2004); see also
City of Magnolia 4A Econ. Dev. Corp. v. Smedley,
533 S.W.3d 297, 299
(Tex. 2017) (per curiam).
                                  14
elements of his conspiracy claim. In another, Pena and Anderson

Properties argued the summary-judgment evidence supporting their

joint motion conclusively established that MacPherson could not prevail

on his claims. In appeals from hybrid motions, we first decide whether

the trial court’s ruling on the no-evidence part of the hybrid motion may

be sustained before addressing the trial court’s ruling on the traditional

section of a hybrid motion. 7

     In no-evidence motions, the motion must allege that no evidence

supports one or more of the essential elements of the plaintiff’s claim.8

Thus, the motion must state “the elements [of the claims on] which [it is

claiming] there is no evidence.” 9 When the motion contains the required

no-evidence allegations, the burden of proof shifts to the plaintiff to

produce evidence demonstrating that a genuine issue of material fact

exists on the challenged elements of plaintiff’s claim. 10 When deciding the

no-evidence motion, the trial court must grant the motion if

     (a) there is a complete absence of evidence of a vital fact, (b)
     the court is barred by rules of law or of evidence from giving
     weight to the only evidence offered to prove a vital fact, (c) the

     7Id.
     8Tex.   R. Civ. P. 166a(i).
     9Id.
     10Mack    Trucks, Inc. v. Tamez,
206 S.W.3d 572, 582
 (Tex. 2006).
                                    15
     evidence offered to prove a vital fact is no more than a mere
     scintilla, or (d) the evidence conclusively establishes the
     opposite of the vital fact. 11

     “A traditional motion for summary judgment requires the moving

party to show that no genuine issue of material fact exists and that it is

entitled to judgment as a matter of law.” 12 In reviewing summary-

judgment evidence, we “take as true all evidence favorable to the

nonmovant, and we indulge every reasonable inference and resolve any

doubts in the nonmovant’s favor.”13

                                 Analysis

     The DTPA, Fraud, and Negligence Claims

     On appeal, MacPherson contends that the trial court erred in

relying on the “as is” clause in granting the hybrid motion for summary

judgment because it (1) is boilerplate in the parties’ contract, which is not

part of the parties’ bargain, and because it does not shield Pena and

Anderson Properties for engaging in fraud. He also argues that the fact he

had the home inspected does not relieve Pena and Anderson Properties from




     11King   Ranch, Inc. v. Chapman,
118 S.W.3d 742, 751
 (Tex. 2003).
     12City  of Richardson v. Oncor Elec. Delivery Co. LLC,
539 S.W.3d 252, 258
 (Tex. 2018); see also Tex. R. Civ. P. 166a(c).
      13Hillis v. McCall,
602 S.W.3d 436
, 440 (Tex. 2020) (cleaned up).

                                    16
failing to disclose Aglony covered up what he characterizes as “undisclosed,

temporary repairs.”

     All of MacPherson’s claims are predicated on the theory that Pena

and Anderson Properties knew of and concealed unrepaired defects in

either the foundation or walls of the home that existed when Aglony sold

the home. Pena’s and Anderson Properties’ hybrid motion claims they

were entitled to summary judgment because they didn’t “make any

representations to MacPherson, nor did they know of the falsity of any”

of the statements that Aglony made in the Notice of Disclosure that she

signed. They also argued MacPherson couldn’t prove he relied on

anything they said or didn’t say, since he purchased the property “as is”

and because he had the home inspected by his own inspector before

closing on the sale.

     Here, the summary judgment evidence contains the parties’

contract, which includes an “as is” clause. The evidence also shows that

before closing on the home, MacPherson had an inspection done that

revealed the walls of the house had settled in multiple areas. Yet he then

chose not to have the home’s foundation or walls inspected by an engineer




                                    17
before he closed on the home despite the fact that he could have canceled

the contract to purchase the home.

     To be sure, the summary judgment evidence shows that Aglony

hired contractors who filled in cracks in the floors in some of the rooms

and then covered them with flooring material or carpet before Aglony

placed the home on the market for sale. And Aglony didn’t disclose that

these cracks existed or that the cracks had been repaired in the

Disclosure Notice she signed when she listed the home for sale. That said,

MacPherson failed to show that Aglony was aware of any unrepaired

defects or malfunctions in that Pena or Anderson Properties knew the

home when Aglony listed it for sale had unrepaired structural defects in

the floors or walls that Aglony did not disclose. 14 For example, there is no

evidence that Pena or Anderson were told by Aglony or that had

independent knowledge that Aglony’s contractors had used shotcrete to

coverup any preexisting structural problems with the foundation of the

home.

     The summary-judgment evidence shows that Pena didn’t hire the

contractors or see the home while it was being repaired. Thus, she had
142022 Tex. App. LEXIS 7105
, at *41-42.
                                  18
even less information than Aglony had about the home when Aglony

asked Pena to list it for sale. In her deposition, Pena testified she never

saw the home while it was being repaired. So while Pena knew generally

that Aglony had contractors perform substantial work to remodel the

home, she did not know the details about the extent of the repairs

relevant to the issues MacPherson complained about in his suit. We

conclude that MacPherson failed to present evidence sufficient to raise a

genuine issue of a material fact showing that Pena knew unrepaired

cracks in the walls, foundation, or floors still existed when Aglony listed

the home for sale or to prove that Pena knew there were structural

problems with the foundation when the home was listed and sold.

     Under section 5.008 of the Texas Property Code, a seller of

residential real property is required to give the purchaser of the property

a written notice—the “Seller’s Disclosure Notice”—which requires the

seller to disclose their knowledge of the condition of the property. 15 This

notice must be filled out on the form prescribed in the statute, or on a

form that is “substantially similar” to the notice the statute prescribes.16




     15See
Tex. Prop. Code Ann. § 5.008
(a).
     16Id. § 5.008(b).

                                   19
The law imposes a duty on sellers of real property, not their agents, to

complete the Seller’s Disclosure. 17 The Notice makes it clear that the

representations within the Notice are the sellers’ alone. 18 So even though

Pena filled out the Notice from information that Aglony provided,

MacPherson could not reasonably rely on any statements in the Notice

as statements made by Pena or by Anderson Properties. 19 Stated another

way, unless a broker or real estate agent knows information in a Seller’s

Disclosure Notice is false, a real estate agent and the agency she works

for is generally not liable for the representations or omissions in the

Seller’s Disclosure Notice because the representations in the Notice are

the seller’s alone. 20




      17See id. § 5.008(a), (d).
      18On   the first page the Notice states: “THIS NOTICE IS A
DISCLOSURE OF SELLER’S KNOWLEDGE OF THE CONDITION OF
THE PROPERTY AS OF THE DATE SIGNED BY SELLER AND IS NOT
A SUBSTITUTE FOR ANY INSPECTIONS OR WARRANTIES THE
BUYER MAY WISH TO OBTAIN. IT IS NOT A WARRANTY OF ANY
KIND BY SELLER, SELLER’S AGENTS, OR ANY OTHER AGENT.”
      19See Sherman v. Elkowitz,
130 S.W.3d 316, 320-21
 (Tex. App.—

Houston [14th Dist.] 2004, no pet.).
      20See Van Duren v. Chife,
569 S.W.3d 176, 188
 (Tex. App.—Houston

[1st Dist.] 2018, no pet.) (explaining the general rule); see also
Tex. Occ. Code Ann. § 1101.805
(e) (creating the exception that applies if the broker
is shown to have known the sellers made a representation that was false,
or knows the seller misrepresented or concealed a material fact and the
                                     20
     Here, it’s undisputed that Pena didn’t have a role in advising,

directing, or supervising any of the repairs that Aglony’s contractors

performed on the home. For that reason, when Aglony asked Pena to put

the home on the market, Pena and Anderson Properties were unaware

whether there were still cracks in the floors or the walls of the home that

Aglony’s contractors had not repaired.

     Pena also testified that she didn’t have the expertise to determine

whether the presence of cracks revealed that a foundation problem

existed in a home. MacPherson produced no evidence to dispute her

testimony. According to Pena, had a foundation problem existed, she

would have expected MacPherson’s inspector to have identified it during

his inspection even with had any existing cracks been covered by carpet.

     Finally, even had MacPherson shown Pena was aware that

Aglony’s contractors had performed repairs to cracks in the walls and

floors, evidence of repairs without more does not show that a person

knows a defect still exists in a home. Several years ago our sister court,

the First Court of Appeals, explained that concept this way: “Knowledge



broker failed to disclose their own knowledge of the seller’s
misrepresentation or concealment).

                                    21
of past repairs does not establish knowledge of a present defect[.]” 21 Thus,

even if Pena knew Aglony hired contractors who performed repairs that

Aglony didn’t specifically disclose in her Seller’s Disclosure, that still

doesn’t support a reasonable inference that Pena knew the home was

being sold with defects that Aglony failed to disclose when she filled out

the Notice. 22 Finally, Pena and Anderson Properties didn’t have an

independent duty to MacPherson—who did not employ them—to

investigate the accuracy of the representations Aglony included in the

Seller’s Disclosure to determine whether the statements in it were true.23

     To sum it up: The summary-judgment evidence shows Pena had

seen the home needed some repairs before Aglony bought it, but that

Pena had no expertise in identifying foundation problems in homes. In

response to Pena’s and Anderson Properties’ hybrid motion, MacPherson

produced no evidence to show that Pena and Anderson Properties knew

or were negligent in failing to disclose what they didn’t know.




     21Van   Duren,
569 S.W.3d at 188
.
     22Id.
     23See   Kubinsky v. Van Zandt Realtors,
811 S.W.2d 711, 714
 (Tex.
App.―Fort Worth 1991, writ denied) (holding that listing real estate
agent has no legal duty to inspect listed property beyond asking the
sellers if such defects exist).
                                 22
MacPherson also produced no evidence to show that Pena and Anderson

Properties knew the home still had unrepaired problems that Aglony’s

failed to disclose when Aglony asked Pena to list the home for sale. After

carefully reviewing the summary-judgment evidence, we conclude the

trial court properly granted the defendants’ no-evidence motions on

MacPherson’s seven claims.

                               Conclusion

     We overrule MacPherson’s issue and affirm the trial court’s

judgment.

     AFFIRMED.

                                             _________________________
                                                  HOLLIS HORTON
                                                       Justice

Submitted on May 12, 2022
Opinion Delivered December 15, 2022

Before Kreger, Horton and Johnson, JJ.




                                   23