Ralph FLETCHER and D'Ann Fletcher, Appellants,
John R. EDWARDS, et al., Appellees.
Court of Appeals of Texas, Waco.
March 29, 2000.
Purchasers of lot brought action against real estate agents and real estate agency alleging statutory and common
law fraudulent inducement, violations of Deceptive Trade Practices Act (DTPA), and negligent misrepresentation.
249th Judicial District Court, Johnson County, granted summary judgment for agents and agency.
The Court of Appeals,
Davis, C.J., held that: (1) clause in earnest money contract for sale of lot, under which purchasers contractually bound
themselves to accept property in its present condition, was agreement to purchase property "as is;" (2) real estate agency
and agents, as agents of vendor of lot, could rely on purchase agreement and acceptance of title as defense to
misrepresentation claims, since both documents indicated that purchasers would accept lot "as is;" (3) genuine issue of
material fact as to whether purchasers were fraudulently induced into entering into purchase agreement and acceptance of
title existed, which precluded summary judgment on statutory and common law fraudulent inducement claims; (4)
question of agent's knowledge as to falsity of representations did not wholly dispose of common law fraud claim, since
purchasers could also prevail if they showed that agent recklessly made alleged representations as positive assertions
without knowledge of truth; and (5) genuine issue of material fact as to whether real estate agent acted recklessly when he
told purchasers of lot that water was available on lot existed, which precluded summary judgment on common law
fraudulent inducement claim.
Affirmed in part, reversed and remanded in part.
BEFORE: Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
DAVIS, Chief J.
>  Ralph and D'Ann Fletcher filed suit against John R. Edwards, Rob Orr, ERA Orr & Associates
(collectively, "Appellees") and others alleging statutory and common law fraudulent inducement, DTPA violations, and
The Fletchers allege that Edwards, a real estate agent, represented to them that they could
get a water connection to a lot which they ultimately purchased, when in fact they could not obtain the necessary
connection because of a lack of easements across an adjoining lot.
The court granted a summary judgment in Appellees'
The Fletchers present the following ten issues in this appeal:
· were the "as is" clauses in the documents they signed with the seller Donald L. Wallace a part of the bargain
between Wallace and themselves;
· if so, did these clauses "survive the June 5, 1991 closing at the title company";
· are Orr and ERA jointly and severally liable for Edwards's alleged representations concerning the availability
of water to the property the Fletchers purchased;
· was Appellees' First Amended Original Answer and Original Counter-Claim for Declaratory Judgment filed and
served in time to become part of the summary judgment record;