Cornelius Joe Ergonis and Linda Ann Ergonis v. William Thomas Sultzbaugh, Sharon Elliott Sultzbaugh A/K/A Sharon Carr, Ebby Halliday Real Estate, Inc., Kathy Gibson, Paul Wood Inspection Group, Inc., Caleb Wood, and James Alan Peterson

Summary

The Texas Court of Appeals, Second Appellate District, reviewed summary judgments in a dispute arising from the purchase of a luxury home. The buyers alleged that the sellers, real-estate agent, and inspectors failed to disclose or identify foundation and structural defects. The court held that the buyers' signed "as is" agreement, disclosures, knowledge of the property's condition, and independent inspections supported summary judgment, and it affirmed the trial court's judgment.

Holdings

1. The enforceable "as is" clause barred the buyers' fraud-, misrepresentation-, negligence-, and DTPA-based claims against the sellers because the buyers accepted the risk that their own appraisal of the property might be wrong, and the summary-judgment evidence conclusively negated reliance and causation.
2. The sellers were entitled to summary judgment because the disclosure notice identified the 2016 Jensen report and the Thompson and Sexton repairs, and the buyers' evidence did not raise a genuine issue that the sellers concealed the property's condition as of the disclosure date.
3. The sellers were entitled to summary judgment on the breach-of-contract claim because the evidence conclusively established that they transferred the existing foundation warranty, which had not expired when the property sale closed.
4. The sellers' agent was entitled to summary judgment on the buyers' negligence, gross-negligence, common-law-fraud, and DTPA claims because the seller, not the agent, completed the disclosure notice; the buyers produced no evidence that the agent knew the notice was false or that her statements about the repairs and transferable warranty were false; and the as-is clause independently negated reliance and causation.
5. The inspectors' contractual limitation of damages to the $1,299 inspection fee was enforceable and properly applied to the buyers' negligence claims.

Questions Presented

1. Whether the trial court properly granted summary judgment for the sellers on the buyers' breach-of-contract, negligent-misrepresentation, gross-negligence, statutory-fraud, common-law-fraud, and DTPA claims.
2. Whether the sellers' agent could be liable for negligence, gross negligence, common-law fraud, or DTPA violations based on the seller's disclosure notice, alleged statements about the property's foundation, and an alleged lifetime foundation warranty.
3. Whether the home inspectors' contractual limitation of damages to the $1,299 inspection fee was enforceable and properly applied to the buyers' negligence claims.

Disposition

affirmed