> 911 S.W.2d 427
Court of Appeals of Texas,
Donald H. and Pat SMITH, Appellants,
Ronald Mitchell and Serena LEVINE, Appellees.
Sept. 13, 1995.
Rehearing Overruled Oct. 27, 1995.
Purchasers of house brought action against sellers under Deceptive Trade Practices Act.
The 37th District Court, Bexar County, Robert R. Murray, J., entered judgment upon jury verdict
for purchasers, and sellers appealed.
Purchasers cross-appealed, alleging error in calculation of
The Court of Appeals, Duncan, J., held that:
(1) sellers had knowledge of defect
of which purchasers were not aware;
(2) "as is" clause in earnest money contract did not negate
finding of causation;
(3) new trial was not required by purchasers' expert's lack of certification;
(4) purchasers could recover stigma damages;
(5) sellers' claim that purchasers refused to allow
inspection of premises was waived;
(6) purchasers were entitled to mental anguish damages;
(7) evidence supported award of damages for difference in value between how house was
represented and how it was received;
(8) admission of photographs, if erroneous, was harmless;
and (9) award of attorney's fees equal to simple one third of damages was proper.
Before RICKHOFF, HARDBERGER and DUNCAN, JJ.
The Smiths appeal a judgment against them, and in favor of the Levines, under the
Texas Deceptive Trade Practices Act.
In eleven points of error, the Smiths argue that they
cannot be held liable for representing to the Levines that the house they sold to them was in
"excellent" condition when the Smiths knew at the time that an engineer had previously
determined that the foundation was defective.
We hold that the evidence adequately supports
the jury's findings that the Smiths' knowing concealment and affirmative misrepresentation of
material facts regarding the condition of the house were a producing cause of damages--including
mental anguish damages--to the Levines.
We further hold that, in these circumstances, the "as
is" clause in the parties' earnest money contract is unenforceable as a matter of law.
In a single cross-point, the Levines argue that the trial court's award of attorney's fees is
erroneous under this court's opinion in > Benefit Trust Life Ins. Co. v. Littles, 869 S.W.2d 453
(Tex.App.--San Antonio 1993), writs granted and judgment set aside without reference to the
merits, > 873 S.W.2d 704 (Tex.1994).
We decline to extend the reasoning in Benefit Trust to
attorney's fees awards under the DTPA.
For these reasons, we affirm.
This case arises out of the sale of a house by the Smiths to the Levines in 1991.
house, which was next door to the Smiths' home, was occupied by Mrs. Smith's mother from
1981 until 1988;
thereafter, the house was completely remodeled and then leased to Monte
In 1989, when Grissom was considering purchasing the house, he hired Jim Bradley of
American Engineering to do a mechanical and foundation analysis.
On January 23, 1989, in his