Sapramjeet Singh v. Tanweer Ahmed and Sarwat Ahmed

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-24-00305-CV
________________

SAPRAMJEET SINGH, Appellant

V.

TANWEER AHMED AND SARWAT AHMED, Appellees

________________________________________________________________________

On Appeal from the 457th District Court
Montgomery County, Texas
Trial Cause No. 22-11-14788-CV
________________________________________________________________________

MEMORANDUM OPINION

Sapramjeet “Jack” Singh (“Singh” or “Plaintiff”) sued Tanweer Ahmed

(“Ahmed” or “Defendant”) and Sarwat Ahmed (collectively “the Ahmeds” or

“Defendants”) over Singh’s 2021 purchase of Defendants’ home. Singh alleged

damages, claiming that he relied to his detriment on Defendants’ fraudulent

misrepresentations about the condition of the property. Although Singh initially

pleaded claims under the Texas Deceptive Trade Practices Act (“DTPA”), common

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law fraud, statutory fraud in a real estate transaction, civil conspiracy, and

negligence, he abandoned the civil conspiracy and part of his negligence claims

during trial.

At the close of Singh’s case, the Ahmeds moved for a directed verdict, citing

the lack of evidence of material misrepresentation, reliance, or damages. The trial

court granted the Ahmeds’ motion as to all Singh’s remaining causes of action,

explaining that Singh had not shown justifiable reliance, causation, or damages.

Singh appealed, arguing that the record contained legally sufficient evidence to

support his claims, and in the alternative, that the trial court erred in limiting the

testimony of an expert witness who could have provided evidence of causation and

damages. We affirm the trial court’s judgment.

BACKGROUND

The Ahmeds were the original owners of the house, which was built in 2011.

In May 2021, the Ahmeds sold the property to Singh, but when additional bulkhead

problems became apparent, as did issues with the pool and retaining wall, Singh sued

the Ahmeds alleging that the Ahmeds fraudulently concealed the damage. We

summarize the pertinent evidence below.

Singh’s Testimony

Singh testified that he was a real estate broker, and that on May 21, 2021, he

purchased the Ahmeds’ property as an investment. The purchase price was

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$1,600,000 and the transaction included both the real property and a boat that Ahmed

purchased for nearly $100,000. Referring to the seller’s disclosure, a document

which “conveys anything that the previous owners know about the property at the

time of sale or at the time of contract[,]” Singh testified that the Ahmeds disclosed

no defects in most of the property’s systems, including the retaining wall. Although

the seller’s disclosure stated that the generator needed a battery, Ahmed told Singh

that it instead needed “an automatic starter switch.” Ahmed also informed Singh

before the closing date that during Hurricane Harvey, a palm tree fell into the canal,

causing the bulkhead to “bulge out[,]” but that information was not included on the

seller’s disclosure. Ahmed told Singh that he thought the bulkhead repairs would

cost about $50,000 to $60,000, which was why Ahmed included the boat in the sale.

After learning that the bulkhead needed “a little repair[,]” as Ahmed phrased

it, but before the sale closed, Singh had his property manager assess the damage.

The project manager “saw the little piece of bulkhead that was pushed out[,]” but

thought the damage was “nothing that stands out [] of the ordinary.” According to

Singh, when Singh told Ahmed that he planned to have the property inspected,

Ahmed replied that he had an inspection report and provided that report to Singh.

Singh testified that he relied on that report and the seller’s disclosure and that he

would not have bought the property if Ahmed had disclosed the issues with the pool,

retaining wall, and bulkhead. Although Singh could not locate that report, he recalled

3
that Ahmed stated that he “was going through a divorce and he needed to speed

things up, and so here’s an inspection report, there’s no issues with the house, and

that’s what I relied on.” Singh stated that the report “did not show anything that

would cause any alarms.”

Singh described the spatial relationship between the bulkhead and retention

wall, stating, “[t]he retention wall sits on top of the bulkhead.” Singh further stated

that the “entire bulkhead on this side is covered by a deck,” so that “[y]ou cannot

see the bulkhead . . . [or] the retention wall. It’s all hidden.” According to Singh,

Ahmed told him that “he just installed a brand-new deck because the previous deck

flew away because of the storm [Hurricane Harvey]. There is no way to test, to check

that bulkhead, what it was behind that deck or the stairs that were built.” Since

Ahmed purportedly told Singh that he installed a new deck “after the storm,” Singh

surmised that Ahmed replaced the deck “maybe a year before [the sale], perhaps.”

Singh first became concerned about structural issues with the property when

the pool began losing water because some of the pipes had cracked “due to shifting.”

The repair estimate was $150,000. When Singh noticed that the patio had separated

from the dwelling, a condition that was not present when he bought the property,

Singh called some contractors, including Kimberly Munsinger. Singh and the

contractors discussed Singh’s concerns, including why the back patio seemed to be

sloping toward the water. Singh learned that “the retention wall that was not

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supposed to be built on a bulkhead had no tiebacks, and that wall was leaning further

into – against the home, which was causing a major drift, and so it was eroding

underneath the patio.” As Singh described the situation, “the sidewalk had dropped

three and a half feet below. Soil was missing underneath. Even the – the garage,

there was – the garage slab, there was soil missing underneath that. Electrical wires,

gutters, everything was stretched, rebars were sticking out.” In Singh’s opinion, “this

had to be going on before. It’s – it’s not something – like, there’s no soil underneath

the flatwork. That soil was getting out somehow over a period of years.” It was

Singh’s understanding that the damage was due to “[e]rosion, wrong soil, definitely,

and a poorly designed retention wall.” Singh testified that he sold the property in

August 2023 because he “couldn’t take the headache any longer. It was too much to

handle, too many surprises[.]”

Ahmed’s Testimony

Ahmed testified that he worked with a builder to build the house as a custom

home. Since Ahmed is “not an expert to design the house[,]” he gave the builder his

specifications and let the builder and DTS Engineering (“DTS”) design the house.

According to Ahmed, DTS’s design was used to build the retaining wall and DaRam

Engineering’s design was used for the pool. Ahmed denied knowing Munsinger and

that he asked her for an estimate to repair the bulkhead. Ahmed further denied that

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anyone from Lake Conroe Marine Construction inspected the bulkhead and advised

him that the bulkhead and retaining wall were failing.

When asked about the inspection report, Ahmed stated that the report was

generated “probably in January of 2021[]” by a potential buyer who made an offer

on the property and ordered the report. Since that potential buyer could not obtain

financing, the sale was not completed. In addition, Ahmed recalled that the

inspection report addressed only the house, not the retaining wall. Also, Ahmed

stated that he no longer had the report, having given it to Singh.

Ahmed acknowledged that some items on his Seller’s Disclosure Notice were

inaccurate. Specifically, Ahmed testified that although his Seller’s Disclosure Notice

reflects no bulkhead, retaining wall, or pool decking damage, and states that the

generator needed a battery, there was such damage and the generator needed

something other than a battery. Ahmed, however, testified that he believed the

generator needed only a battery. Ahmed also acknowledged having received an

inspection report within the previous four years despite having denied it on his

disclosure notice and that he had made an insurance claim for damage after

Hurricane Harvey struck the property in 2017. Ahmed further testified that he

replaced the composite decking after Hurricane Harvey but that was the only repair

work done.

6
Kimberly Munsinger’s Testimony

Munsinger testified that she worked for Lake Conroe Marine Construction, a

company specializing in bulkheads, boathouses, and docks. Munsinger estimated

that she had worked for Lake Conroe Marine Construction for eight or nine years as

of the time of trial and had examined “several hundred” bulkheads per year during

that time.

Specifically referencing the property that is the subject of this suit, Munsinger

recalled that she first inspected the approximately 200-foot bulkhead sometime

between 2019 and 2021 because the Ahmeds wanted a repair estimate for it. When

Munsinger evaluated the Ahmeds’ bulkhead, she observed that “the bulkhead on the

canal side was – was pushing out, and it’s a wood bulkhead and you could tell there

was deterioration[.]” While visiting the Ahmeds’ property, Munsinger also saw

cracks in the concrete. Munsinger accordingly told the Ahmeds of her findings,

prepared a repair estimate, and told the Ahmeds. She could not, however, recall the

dollar amount of her estimate.

Munsinger could not recall when Singh first called her but stated that it was

after August 2021. During Munsinger’s second visit to the property, she noticed that

“[t]he cracks were significantly more and wider[]” and “the pushout of the bulkhead

had increased at that time.”

7
When deciding whether to admit Munsinger’s expert testimony about the

extent and cost of needed bulkhead repairs, the trial court heard this testimony and

the parties’ respective arguments regarding its admissibility outside the jury’s

presence. Munsinger testified that a new wall should have been installed in front of

the original wall and the gap between the two walls filled with stabilized sand at a

cost of approximately $400,000 to $500,000. Munsinger wrote an estimate and gave

it to the Ahmeds but no longer had a copy of her estimate. Munsinger also testified

that she told the Ahmeds “that the bulkhead was failing, that the bulkhead was not

properly installed, and that if they didn’t do something about it right then, it was

going to get worse.” According to Singh’s attorney, Munsinger also would have

testified that if the Ahmeds had properly addressed the problem, it “more than likely

could have been stopped[,]” and that Munsinger could see that “there had been work

done on the bulkhead to mitigate” the damage.

John Gultek’s Testimony

Gultek testified that he was a structural engineer with over twenty-five years

of experience in that field. He has owned DTS Engineering since 2000. Gultek

testified that although DTS designed the house, worked with the builder, Calibre

Homes, and he visited the property more than once, he never met or spoke to the

Ahmeds. DTS also “did a design for the retaining wall[,]” but did not do any design

work for the bulkhead, since it preexisted the other structures on the property.

8
According to Gultek, the Ahmeds did not use the retaining wall design that DTS

created but instead used a design “by another engineering company.” Gultek added

that DTS did not design the pool, the decking, or the stairway, and that he did not

know when they were installed. He confirmed that the decking and stairway covered

the bulkhead so that “you cannot observe the condition of the bulkhead.”

Gultek recalled that Singh contacted DTS in 2022. DTS assessed the issues

with the property, created a design to remedy those issues, and performed “some

work” at the property.

Documentary Evidence

• Photographs of the damage to the property, taken in July,
September, and December 2022, and March 2024, damage that was
not present when Singh bought the property in 2021;

• Structural drawings for the property;

• DTS Engineering, Inc.’s disclaimer (unsigned), dated January 22,
2010;

• Deeds, contracts and disclosures regarding the property, showing
that Singh bought the property “as is” and that “[s]oil conditions
vary greatly throughout Texas[,]” and that soil may move;

• Pool repair contract (unsigned), dated December 16, 2021, showing
a contract amount of $144,000;

• Lake Conroe Marine Construction LLC’s bulkhead repair
estimate/contract (unsigned), dated July 18, 2022, showing a price
of $510,000;

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• Appraisal, showing that Montgomery County appraised the property
at $2,275,910 in 2022;

• Text message exchanges regarding bulkhead and foundation.

The initial message, from April 2021, states: I have to disclose you
that it needs little repair on the side bulk head. May cost close to
$60k.

To be honest with you, I have to pay agent 3%. My payoff is $1525k.

I will give you my boat which I bought for $97K and it has barely 4
hours on it. It’s a 15 seater boat.

So net net is you can pay my loan off and take boat too. If it comes
even less than $1.6 I am fine[.]
....
On April 14, 2021, Singh messaged Ahmed, stating: Uncle ji good
morning is it ok if our contractor comes to look at the bulkheads at
10:30? He won’t need to go inside.
....
In June 2022, Singh messaged Ahmed asking who poured the
foundation, claiming that the foundation was the cause of the
problems with the deck and bulkhead area.

The Trial Court’s Docket Control Order

The trial court signed its Docket Control Order (“DCO”) on September 15,

2023. The DCO requires expert witness designations at least 150 days prior to trial

(trial was set for June 3, 2024) as follows:

A list shall be filed which includes each expert’s name, address,
telephone number, the subject of the testimony, and the opinions that
will be proffered by each expert. Experts not listed in compliance
with this paragraph will not be permitted to testify absent a
showing of an exception under Rule 193.6. A Rule 195 disclosure is
not a substitute for this filed designation.

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The deadline to designate experts under the DCO was then January 12, 2024. The

DCO does not distinguish between retained and non-retained experts.

Singh’s initial witness list, filed September 1, 2023, does not list Munsinger

as a witness. Singh filed a new witness list on September 5, 2023, listing Munsinger

with her contact information but not including the subject of Munsinger’s testimony

or her opinions.

Singh served his Amended Initial Disclosures on the Ahmeds on April 24,

2024. In this document, Singh identified Munsinger, provided her contact

information, and stated, “Witness hired by Defendants; informed Defendants of the

sever[e] problems with the bulkhead, etc. that Defendants misrepresented; provided

Plaintiff with repair estimate[.]” Singh’s expert designation was also served on April

24, 2024, and designated Munsinger with the following description of her testimony:

Ms. Munsinger is a contractor who specializes in bulkhead repairs and
replacements. She also has knowledge as to the condition of the
bulkhead on the property both before Plaintiff’s purchase of the
Property and after as she has examined the property and examined the
damages made the basis of this case. Therefore, Ms. Munsinger has
knowledge of relevant facts regarding Plaintiff’s claim and the damages
made the basis of this suit.

She will testify as to the scope of reasonable and necessary repairs to
the bulkhead on the property and the cause of the damages. The report
for the scope of the reasonable and necessary repairs to the property and
the cause of the damages on which she will testify is attached.

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Ms. Munsinger has reviewed or may review all expert reports, repair
estimates, photographs, and documents produced by Defendants. Ms.
Munsinger also inspected the property.

Ms. Munsinger’s findings, observations, results, mental impressions,
opinions and conclusions may be supplemented within a reasonable
time following receipt of additional documents or data, if any, from
Defendant and or its experts.

With regard to the report referenced above, what was attached to the

disclosure was the repair estimate, dated July 18, 2022 from the company Munsinger

worked for in 2022, which was two years after the sale of the home from the Ahmeds

to Singh. Nowhere in the report does it talk about the prior condition of the

bulkheading from 2019 to 2021, even though the designation stated that Munsinger

also had knowledge as to the condition of the bulkhead on the property before

Singh’s purchase. More importantly, the report doesn’t talk about what Munsinger

saw or her impressions back in her 2022 visits. Everything that is disclosed and

included in the report is from her subsequent visits when Singh owned the property.

The trial court deemed the repair estimate was deficient in several ways as an expert

report, especially on lost value at the time of Singh’s sale of the home.

The trial court excluded Munsinger’s expert testimony ruling that Munsinger

was not properly designated as an expert according to the terms of the DCO. The

trial court did, however, permit Munsinger to testify as a fact witness.

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The Directed Verdict

After Singh rested his case, the Ahmeds moved for a directed verdict in their

favor on the grounds that there was no evidence of (1) actionable conduct under the

DTPA; (2) Singh’s reliance; (3) Ahmeds’ material misrepresentation; or (4) Singh’s

damages. In support of this motion, the Ahmeds argued that they disclosed what they

knew at the time of the sale, which was “what the law require[d].” Singh responded

that the Ahmeds’ comments were jury questions rather than grounds for a directed

verdict. Singh further argued that according to Munsinger, the retaining wall repair

would cost approximately $510,000, to which the trial court replied, “that was not

admitted before the jury and I didn’t hear her say it was reasonably – reasonable and

necessary.” The court continued:

Which was never said it was reasonable and necessary. So reasonable
and necessary costs need to be proven up. So you can’t have – like, a
typical – you don’t need reasonable and necessary if you’re doing like
painting a wall or a minor repair, but a bulkhead repair, you would need
the testimony that it’s reasonable and necessary. A lay witness cannot
testify to that damage amount.

....
I am going to grant the directed verdict on all causes of action, and
here’s my findings.

First, let’s go with – we’ll start with the damages. He was using a
subsequent sale. First of all, I think that in a damage – a case like this,
you have the choice of permanent or temporary. Temporary, and by the
testimony of Ms. Munsinger -- it was during the voir dire testimony –
we learned that she was out on the property back in 2019, 2020, or 2021
– she couldn’t remember when – and she did say that it could be
repaired. So this is a temporary injury, not a permanent injury, that
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could be repaired. Gultek said the similar thing but that was also in the
offer of proof, both requiring expert testimony to give those opinions.
So this is a temporary injury, not a permanent injury, so you have no
damages. The temporary amount was less than the permanent amount,
so you have to go with the less amount, anyway. So 500’s less than
$700,000 and change. Even if we did go with that, there’s Barry v.
Jackson, 309 S.W.3d 135, that gives us the rule on a subsequent sale
and when you’re going to do that. This was over two years from the
closing dates, and to do that, you have to adjust for market conditions.
I heard no testimony from Mr. Singh that during that time, he took
account for the fluctuations in market conditions, that this was a
reasonable time after the injury came. So I don’t think it was a
reasonable calculation of damages under that case law.

Second, reliance, this is the killer. Your case is done on this case, on
this alone, and this is – let me get that case for you. There’s two cases,
Supreme Court cases. Mercedes-Benz USA versus Carduco, Inc., 219
Westlaw 847-845. There’s JPMorgan Chase Bank versus Orca Assets,
G.P., 546 S.W.3d 648, Texas 2018, and it says an essential element of
a fraud claim, and all these claims, justify – that the plaintiff justifiably
relied on the alleged misrepresentations or nondisclosures. Usually it’s
a fact question, but it may be negated as a matter of law, and the
circumstance there was sophisticated buyer and red flags.

Here, it’s all there. We have a sophisticated buyer. He’s a real estate
developer. We have red flags. He’s told there’s an issue with the
bulkhead. This is all prior to closing. This is not in dispute. He is told
there’s an issue to the bulkhead. Whether it’s misrepresentation, partial
representation or not, the text message says $60,000. It may be $60,000.
Mr. Singh has that available prior to closing. Exhibit 1, Bates-labeled
130, there’s a good photograph of the wood sticking out, pushing out
on the side of the house where the tree fell down. Ms. Munsinger said
in 2019 or 2020 or 2021, whenever she was out there, that bulkhead,
the wooden portion was pushing out. That was in plain sight. Mr. Singh
testified – this is not in dispute – prior to closing, he went and did his
own inspection, his own walk-through of the property. There’s no way
he didn’t see that bulkhead pushing out. Mr. Singh, prior to closing, in
reliance on the representation of the potential damage to the bulkhead,
sent his project manager there. The project manager did an inspection
and found no damage. Why is that important? Because that goes to
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show that either, A, there was no damage, and if the project manager
can’t see it, how is Mr. Ahmed going to know? I heard no testimony,
no damage that there was any effects, any problems in the house: doors
wouldn’t close right, there’s cracks in the ceiling, foundation issues,
things that maybe would show Mr. Ahmed knew something that he
wasn’t telling or something. None of that was before us. We have red
flags. We have a sophisticated real estate developer. There is, as a
matter of law, no justifiable reliance.

Causation was another thing brought up. Even if there were viable
damages, which there are not in this case, Mr. Singh testified – this is
per his testimony – he waited until after he closed to perform, key
words, due diligence. Mr. Singh testified he waited until after he closed
to perform due diligence. He said that he had six months. Right away
he was – he wasn’t going to work on or fix any of the issues that he was
disclosed until after he moved in. He testified he had at least six months
of invoices. All that time, the property’s getting worse and we have
these photographs. Worse and worse and worse and worse. To this day,
it is not fixed. We have a photograph from March of 2024, March of
2024, which shows the damages are even worse than they were before.

We don’t have the proper damage model. We don’t have justifiable
reliance. We don’t have any expert opinions in this case. We don’t have
any misrepresentations. We have causation issues. The damages were
caused – and not that this is a contributory negligence case, but to show
that there are intervening causes which were shown by Mr. Singh’s
inaction on the property when there were visible signs.

So for these reasons, I am granting the directed verdict on all causes of
action.
The trial court also issued the following written Order Granting Defendant’s

Motion for Directed Verdict:

Seven weeks prior to closing, Defendant told Plaintiff “THE
BULKHEAD NEEDS REPAIR”

I. HISTORY
On November 1, 2022, Plaintiff sued Defendants alleging
numerous causes of action including, DTPA violations, Common
15
Law Fraud, Fraud in a Real Estate Transaction, Civil Conspiracy,
Negligence, and Negligent Misrepresentation. On February 16,
2023 Defendants answered with a general denial. The Court
called this case to trial on June 3, 2024 with both Plaintiff and
Defendants appearing personally and through Counsel. Both
sides announced “ready” and the Court empaneled and swore in
a jury of twelve with one alternate. Plaintiff put on his case by
calling himself, a contractor, an engineer, one of the Defendants
and Plaintiff’s counsel for fees. Plaintiff rested his case on June
4, 2024 and Defense Counsel moved for a directed verdict on all
of Plaintiff’s causes of actions, attacking every essential element.
Plaintiff agreed to withdraw his conspiracy and negligence
causes of action.

II. UNCONTESTED FACTS
In early March of 2021[,] Plaintiff was interested in purchasing
a 9,306 square foot, custom built, waterfront mansion on Lake
Conroe from Defendants located at 28844 Oaks on the Water,
Montgomery, Texas 77356 (hereafter the “Property”) for
$1,795,000. Defendants, husband and wife, were the original
owners and lived on the Property since 2011. At the time of these
negotiations[,] Plaintiff represented himself as he was a real
estate broker who had experience buying and selling multiple
million dollar properties. Defendants were represented by a
broker from MHW Brokerage Services.

On March 2, 2021[,] Plaintiff received Defendants’ Sellers’
Disclosure Notice that failed to reference any knowledge
regarding bulkhead repairs (see Exhibit 3, pp D-0021 – D-0026).
A month later and seven weeks prior to closing, on April 2, 2021,
Plaintiff received notice from the Defendant Husband through
text message that the bulkhead may need upwards of $60,000
worth of repair (See Defense Exhibit 2). Additionally, Plaintiff
testified that Defendant Husband told him “the bulkhead needs
repair.” On April 2, 2021[,] Plaintiff not only became aware that
the bulkhead on the waterfront mansion needed repair, but that
the Defendants had failed to properly and accurately disclose this
in the March 2, 2021 Sellers’ Disclosure Notice.

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After becoming aware of the inaccurate disclosure and need for
bulkhead repair, Plaintiff ordered his project manager to inspect
Defendants’ property. Defendants allowed Plaintiff’s project
manager full access to conduct his inspection. Plaintiff’s project
manager saw the condition of the Property during his inspection,
including a portion of the bulkhead that was pushed out as well
as a missing tree near the damaged bulkhead. Plaintiff’s project
manager reported these findings to Plaintiff and informed
Plaintiff that these damages were not out of the ordinary and that
he could get this taken care of.

Instead of insisting the Defendants repair the damaged bulkhead
prior to closing or having his own project manager ‘take care of’
the damaged bulkhead, Plaintiff renegotiated the sale of the
home. During this renegotiation, Plaintiff learned that just two
months prior to his contract, Defendants had another sale fall
through. Defendants provided Plaintiff with the prior potential
buyer’s inspection report dated January 2021. Plaintiff testified
that he reviewed the January 2021 inspection report and that it
showed no issues with the bulkhead or the home. Plaintiff chose
to forego the hiring of his own inspector, and instead chose to
rely on this previous potential buyer’s inspection report. With the
delivery of the January 2021 inspection report from Defendants,
Plaintiff once again became aware of the inaccuracy of another
portion of the Sellers’ Disclosure Notice, that being Defendants’
statement in the Disclosure that they were not in receipt of any
inspection reports within the last four years (see section 10 of
Exhibit 3, page D-0025). Plaintiff also testified that prior to
closing, Defendant Husband disclosed to Plaintiff that
Defendants previously replaced the stairs to the deck. Plaintiff
personally visited the Property and saw the condition it was in
prior to closing.

Despite spending eleven weeks negotiating the purchase of the
Property, seven weeks becoming aware of the need for expensive
bulkhead repair as well as the inaccuracies in the Sellers’
Disclosure Notice, not to mention learning of the prior failed sale
and stair replacement, Plaintiff agreed to purchase Defendants’
Property on May 21, 2021 for $1,795,000.00. Plaintiff made the
decision to purchase this waterfront mansion without first
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repairing the bulkhead. Plaintiff made the decision to enter into
a Non-Realty Items Addendum that conveyed Defendants’
Mercury Boat and Trailer to Plaintiff in lieu of the bulkhead
repair (See Exhibit 3, p. D-0020). Plaintiff testified the Mercury
Boat was valued around $100,000.00 Plaintiff made the
calculated decision to take it upon himself to do the bulkhead
repairs after closing, accepting the burden of repair, in exchange
for a $100,000.00 boat.

Once the baton of ownership was passed to Plaintiff, the Property
value increased by half a million dollars. Exhibit 10 shows the
April 5, 2022 appraised value for the Property increased to
$2,275,910. It wasn’t until after Plaintiff failed to conduct any
repairs on the bulkhead for over a year that the condition of the
Property worsened. Plaintiff testified he delayed the start of his
due diligence in repairing the bulkhead for another five to six
months after purchasing the Property. For half a year Plaintiff did
nothing to remedy the bulkhead. Plaintiff testified it wasn’t until
October or November of 2021 that he began his due diligence in
looking for and talking to contractors about the repair of the
bulkhead. Plaintiff testified for the next eight months, from
October 2021 to June 2022, he was getting estimates and
opinions on repairing the bulkhead without the commencement
of any actual physical work to fix the bulkhead. Plaintiff testified
he delayed the beginning of work because he wanted it done
right. Although Plaintiff testified he received numerous
estimates and invoices for repair, not a single estimate from a
single contractor was ever admitted before the Jury.[1] Although

1
Plaintiff attempted to introduce a contractor invoice from Lake Conroe
Marine Construction, LLC dated July 18, 2022 through Witness Kimberly
Munsinger. The Court excluded said invoice and any expert opinions from Ms.
Munsinger as her opinions were not properly filed nor disclosed [i[.e.,] the opinion
of condition of property while Defendants owned property in 2019, that there were
prior repairs made, and the opinion of diagnosis and scope to fix the problems in
2019], nor was all the evidence she relied upon produced [photographs she took of
the Property during her inspection when Defendants owned the Property].
Munsinger’s testimony was limited to that of a lay witness and stated the condition
of the Property when Defendants owned it: a pushed out section of the bulkhead and
cracks in decking, similar to what Plaintiff and Plaintiff’s project manager witnessed
18
Plaintiff accepted the Burden of repair he admitted on cross
examination that at the time he resold the Property he failed to
make a single repair. For the entire twenty-seven months Plaintiff
owned the Property[,] he watched as the damage intensified and
did nothing to stop the bleeding.

The various pictures of the Property that were admitted into
evidence document the degrees of destruction that were
exacerbated under Plaintiff’s control and ownership. Photos
from June 2022, September 2022, December 2022, and even
March 2024 show while Plaintiff failed to conduct any repairs
after accepting the burden of repair, the Property condition
worsened. On September 1, 2023, Plaintiff sold the Property to a
subsequent buyer with a $750,000 credit after Plaintiff failed to
make a single repair causing the Property condition to deteriorate
and market value to plummet. Plaintiff testified he sold the
Property to someone who could give the Property more attention.

III. LEGAL STANDARD
A directed verdict is proper when reasonable jurors cannot
decide an issue required in a verdict. City of Keller v. Wilson, 168
S.W.3d 802, 823 (Tex. 2005). It is the same test as that for
judgments notwithstanding the verdict, summary judgments and
no-evidence appellate reviews. Id. If reasonable minds could not
differ in their conclusions, then the evidence is conclusive and a
directed verdict is required. Id. at 816; Wood v. Pyramid
Community Development Corporation, 14-11-00428-CV (Tex.
App.—Houston [14th Dist.] June 26, 2012, no pet.). The Court
uses a legal sufficiency standard which must be sustained when
any of the following is true:

(1) There is a complete absence of evidence regarding a vital fact,
(2) The rules of law or evidence preclude according weight to the
only evidence offered to prove a vital fact,

prior to closing. She also testified that Defendants called her out to get an estimate
for repair to the bulkhead and that she provided Defendants with an estimate for such
repairs, an estimate she never produced with no memory of its particulars as she
claims it vanished when the company changed software after the death of the prior
owner.
19
(3) The evidence offered to prove a vital fact is no more than a
scintilla, or
(4) The evidence conclusively establishes the opposite of the
vital fact.
Keller, 168 S.W.3d at 810; City of Houston v. Proler, 14-10-
00971-CV, *4-5 (Tex. App. - Houston [14th Dist.] 5-31-2012, no
pet.).

“The final test for legal sufficiency must always be whether the
evidence at trial would enable reasonable and fair-minded people
to reach the verdict under review.” Keller, 168 S.W.3d at 827.
Just as with motions for summary judgment, the Court examines
the evidence in the light most favorable to the non-movants and
determines “whether there is any evidence of probative value to
raise a material fact issue on the question presented.” Krobar
Drilling v. Ormiston, 01-10-01016-CV, *4 (Tex. App. - Houston
[1st Dist.] 5-3-2012) (citing Bostrom Seating, Inc. v. Crane
Carrier Co., 140 S.W.3d 681, 684 (Tex. 2004)). Deciding what
a reasonable juror could find may be difficult in that “reasonable
people sometimes disagree; thus, it is also inevitable that they
will sometimes disagree about what reasonable people can
disagree about.” Keller, 168 S.W.3d at 827. But even if the
decision is difficult, if the Court concludes that no reasonable
juror could make a required finding, then it becomes
constitutionally imperative for the Court to grant a directed
verdict.

IV. LEGAL ANALYSIS
Applying the law to the facts of the case the Court has no choice
but to Grant the Directed Verdict as a matter of law as there is no
evidence (or insufficient evidence) upon which any reasonable
juror could find, or the evidence conclusively establishes the
contrary for every essential element on every cause of action.
Every remaining cause of action brought by Plaintiff against
Defendants (DTPA, Fraud, and Negligent Misrepresentation)
shares four similar essential elements: 1.) A false, misleading,
deceptive representation (affirmative or by nondisclosure), 2.)
Relied on by Plaintiff, 3.) Causing, 4.) Damages.

20
A. No Misrepresentation
Plaintiff’s theory was Defendant failed to disclose and/or
partially disclosed the condition of the Property. Plaintiff
relied upon Contractor Munsinger, who previously inspected
the bulkhead when Defendants owned the Property.
Weighing the testimony of Munsinger in the light most
favorable to Plaintiff demonstrates Munsinger saw a pushed
out bulkhead with cracks and a missing tree and informed
Defendants they needed to repair it. There was no evidence of
the amount of the repair or a copy of the invoice she drafted
back in 2019 she claims was provided to Defendants[. 2] Not
only was this the precise condition of the Property (pushed
out bulkhead, cracks, and missing tree) when inspected by
Plaintiff and his project manager, it was the precise disclosure
Plaintiff testified he received from Defendant Husband, seven
weeks prior to closing that “the bulkhead needs repair.”

There was no evidence admitted that showed Defendants
were aware of any other condition other than the pushed out
bulkhead, cracks, and a missing tree. There was no evidence
that the interior of the home was creaking, cracking, or failing
in any way. There was no evidence that the estimated $60,000
to $100,000 of repair from Defendants to Plaintiff was false
or inaccurate. Plaintiffs failed to prove any amount of repair
from April 2, 2021 when Plaintiff became aware the Bulkhead
needed repair. There was no expert testimony that
demonstrated the pervasiveness of damages, causation of
injury, not timeline of destruction. Plaintiff failed to prove
any misrepresentation about the condition of the Property as
a matter of Law and as such the Court must Grant the Directed
Verdict.

B. No Reliance
The evidence weighed in light most favorable to the Plaintiff
conclusively establishes Plaintiff did not actually and

2
Defendant Husband testified he never had Munsinger come out to the
Property, nor received an invoice from her. However, for purpose of this analysis,
the Court must accept Munsinger’s testimony as true and disregard Defendant’s
contrary statement.
21
justifiably rely on any misrepresentation from Defendants. As
previously stated[,] there was no misrepresentation to rely on.
Even if there was, the circumstances definitely show
Plaintiff’s reliance was not justified. “Whether Plaintiff’s
reliance is justifiable is usually a fact question, but the
element may be negated as a matter of law when
circumstances exist under which reliance cannot be
justified.”[3] In an arm’s length transaction, Plaintiff may not
blindly rely on an assumption that the Defendant’s statements
are truthful, but must exercise ordinary care to protect his own
interests.[4] The Plaintiff is presumed to know any facts that
would have been discovered by a reasonable prudent person
in the same or similar circumstances.[5] Moreover, Plaintiff
has a duty to use ordinary care and reasonable diligence to
protect their interest if they are aware of information – red
flags – that would lead a reasonable prudent person to
investigate and are not justified in relying solely on
Defendants’ representations.[6] Plaintiff’s personal
characteristics and abilities is another factor Courts use to
determine whether Plaintiff’s reliance was justifiable.[7]
“Either numerous red flags or direct contradiction in [the]
transaction between sophisticated parties alone would [be]
sufficient to negate justifiable reliance as a matter of law.”[8]

Here, Plaintiff was a sophisticated Party, a real estate broker
that had experience buying and selling numerous million
dollar properties prior to the transaction in this case. Although
Plaintiff and Defendants were acquaintances, they had no
prior business dealings and were not family, making this an
arm’s length transaction where Plaintiff had to rely on his own
sophisticated experience and not that of the Defendants.
Seven weeks prior to closing Plaintiff became aware of
numerous red flags that would cause a reasonably prudent

3
Mercedes-Benz USA v. Carduco, Inc. 2019 WL 847845 (Tex. 2018).
4
JP Morgan Chase Bank v. Orca Assets GP, 546 SW3d 648, 654 (Tex. 2018).
5
Id.
6
Id.
7
Id.
8
Id.
22
purchaser (let alone a sophisticated real estate broker) of a
million dollar waterfront mansion concern in relying on
anything Defendants stated. As the Plaintiff renegotiated the
purchase prior to closing, he became aware of even more red
flags. Here are just a few of the undisputed red flags that
Plaintiff knew about prior to closing on the Property:

a. The bulkhead needed repair.

b. Defendants failed to disclose the bulkhead repair on the
Seller’s Disclosure Notice.

c. A prior sale fell through two months prior to Plaintiff’s
contract.

d. Defendants failed to disclose the existence of a January
2021 inspection report on the Seller’s Disclosure
Notice.

e. The Property’s physical condition prior to closing in
April of 2021 included a pushed out bulkhead, cracks,
and a missing tree as reported by the Defendant
Husband, Plaintiff’s project manager’s inspection,
Plaintiff’s personal inspection, and the January 2021
prior prospective purchaser inspection report.

f. Defendants previously replaced the stairs on the deck.

Knowing all of these red flags, Plaintiff, a sophisticated real
estate broker, decided to not only accept the burden of repair in
the Non-Realty Items Addendum, he chose to delay his due
diligence in repairing the bulkhead. Under this extreme set of
facts[,] Plaintiff cannot as a matter of law claim to have relied on
anything Defendants stated about the condition of the Property.
Similar to judgment debtors with no assets being “judgment
proof,” Plaintiff, with his sophistication, numerous warnings,
and delay in due diligence is RELIANCE PROOF.

23
C. No Causation
The type of causation standard depends on the type of
damages sought by Plaintiff. Since Plaintiff seeks direct
damages, the diminution of market value in the Property, he
only has to show the misrepresentation resulted in the
damages, and not proximate cause as the foreseeability of
direct damages are presumed.[9] While consequential
damages and DTPA damages require proximate and
producing causes, the Court will focus only on the lowest
causation standard as Plaintiff fails on all causes of action on
this lowest causation standard.

Simply stated, Plaintiff accepted sole responsibility and chose
to permanently delay the repairs. After becoming aware that
the bulkhead needed to be replaced and all of the red flags that
followed, Plaintiff chose to accept the burden of repair in the
Non-Realty Items Addendum. By doing so, Plaintiff
completely waives the source of any other potential cause. He
accepted sole responsibility and chose to delay the start of his
due diligence for six months, delay in performing due
diligence for another eight months, and permanently delay the
actual physical repair of the bulkhead for his entire twenty
seven month ownership. Under Defendant’s (sic) watch, the
Property went from increasing in value, to bad, then to worse.
The photographs entered by the Parties demonstrate the
Damages Plaintiff allowed to metastasize. Plaintiff’s case
fails as a matter of law because no amount of damage for any
cause of action resulted from a misrepresentation, but rather
solely from Plaintiff’s actions, or in this case, inaction.[ 10]

9
See Scott v. Sebree, 986 SW2d 364, 371 (Tex. App. – Austin 1999, pet.
Denied).
10
The Court is not considering any affirmative defenses in this finding as it
struck Defendants’ late amended answer, but rather only on Plaintiff’s failure to
meet its own burden of proof on the elements.
24
D. No Damages
The type of compensation to be awarded for an injury to real
property depends upon the nature of the injury.[ 11] Plaintiff
stated numerous times from pretrial, to opening argument, to
closing argument[,] that he sought the diminution of market
value as his only damage model. A plaintiff’s ability to
recover damages to his property requires a consideration of
the character of an injury as either permanent or
temporary.[ 12] Damages for permanent injuries to land is the
diminution in the value of the land.[13] Damages for
temporary injuries is the cost to reasonably repair and restore
the property to its condition immediately preceding the
injury.[14] The diminution in fair market value may be the
measure of damages only when the cost of restoration exceeds
the diminution in fair market value.[15]

Here, Plaintiff used the wrong damage model. He tried to
recover $750,000 in the diminution of value (permanent
damages) when the injury to the Property was temporary. We
know from contractor Munsinger that she recommended the
bulkhead be repaired during both Defendants’ and Plaintiff’s
ownership of the property. We heard that Plaintiff knew the
Property needed repair and that he was looking into hiring a
contractor for repairs. We heard Plaintiff’s project manager
say the Property needed repairs that were not out of the
ordinary and he would take care of it. There is no dispute the
damages here should have been proved as temporary and not
permanent. As such, the Plaintiff failed as a matter of law to
prove damages.

11
See Atlas Chemical Industries, Inc. v. Anderson, 524 SW2d 681 (Tex.
1975).
12
See Z.A.O., Inc. f/k/a Bell Thunderbird Oil Co., Inc. v. Yarbrough Drive
Center Joint Venture, 50 SW3d 531 (Tex. App. – El Paso 2001, no pet.).
13
See Id. See also Kraft v. Langford, 565 SW2d 223, 227 (Tex. 1978).
14
See Id.
15
See Mieth v. Ranchuest, 177 SW3d 296, 303-04 (Tex. App. – Houston [1st
Dist.] 2025, no pet.).
25
During the Plaintiff’s testimony[,] he tried to elicit
“backdoor” evidence as to the amount that contractor
Munsinger guessed it may have cost to repair the bulkhead in
2019 after the Court excluded said testimony.[ 16] However, at
no time did the Plaintiff present evidence from any witness
that any cost of repair was reasonable and necessary.[17]
There was also no evidence presented by the Plaintiff as to
the cost of reasonable and necessary repairs to restore the
Property at the time Plaintiff became aware of the need for
repairs: April 2, 2021.

Even if permanent damages were the correct measure,
Plaintiff failed to properly prove the loss in market value at
the time Plaintiff became aware of the need for repairs: April
2, 2021. During Plaintiff’s testimony[,] he tried to elicit an
opinion that the value of his Property decreased by $750,000
from his subsequent sale that occurred on September 1, 2023,
twenty seven months after Plaintiff became aware of the
damaged bulkhead. The market value of the property may be
determined by a fair resale . . . within a reasonable time after
the breach.[18] Plaintiff had the burden to show that twenty
seven months was within a reasonable time frame, but he
failed to elicit any testimony regarding this gap in time.
Although Plaintiff was a sophisticated real estate broker, he
failed to state whether there were any fluctuations in market
conditions for those twenty seven months.[19] “Recent events

16
As referenced earlier, the Court excluded contractor Munsinger’s opinions
as they were not properly filed nor disclosed. During a voir dire/offer of proof of
[M]u[]nsinger outside the Jury’s presence[,] she stated she could not remember the
amount she quoted Defendants back in 2019 and guessed it may have been around
$400,000 to $500,000. She never testified this amount was reasonable and necessary
as required by McGinty v. Hennen, 372 SW3d 625 (Tex. 2012); Mustang Pipeline
Co. v. Driver Pipeline Co, 134 SW3d 195 (Tex. 2004); Dall. Ry. & Terminal Co. v.
Gossett, 156 Tex. 252 (1956); Bavarian Autohaus, Inc. V. Holland, 570 SW2d 110
(Tex. Civ. App. – Houston [1st Dist.] 1978; Bradley v. Castro, 591 SW2d 304 (Tex.
Civ. App. – Fort Worth, 1979, no writ).
17
As required by Id.
18
See Kempner v. Heidenheimer, 65 Tex. 587, 591 (1886).
19
See Barry v. Jackson[,] 309 SW3d 135, 140 (Tex. App. – Austin, 2010).
26
in the nationwide real estate market show without a doubt that
one year can make an enormous difference in the value of real
estate, and Texas courts have recognized this fact.”[20] Here,
there was evidence of fluctuations in the market. Exhibit 10
shows that within one year of purchasing the Property, the
April 5, 2022 appraised value of Plaintiff’s Property increased
by half a million dollars. Plaintiff never testified what the
fluctuations mean. Despite being a sophisticated real estate
broker, Plaintiff failed to offer any evidence on comparable
sales with and without damaged bulkheads. Since the Plaintiff
failed to put on any evidence of the proper, temporary damage
model, or an adequate permanent damage analysis, the
Plaintiff’s case fails as a matter of law.

V. CONCLUSION
The Plaintiff has provided no evidence (or insufficient evidence)
upon which any reasonable juror could find, or the evidence
conclusively establishes the contrary, for every essential element
for DTPA, Fraud, and Negligent Misrepresentation. It is,
therefore ORDERED that all of Plaintiff’s causes of action are
dismissed with prejudice as a matter of law. All costs to be borne
by Plaintiff. This Order is final, disposing of all claims and
Parties and is appealable.

SO ORDERED: 6/7/2024 10:01:42 AM
Vincenzo J. Santini, Judge Presiding

ANALYSIS

Issue One: Directed Verdict and Sufficiency of the Evidence

In his first issue, Singh argued that the trial court erred in granting a directed

verdict, because the evidence was “legally sufficient to support” his causes of action

20
See Id.
27
alleging DTPA violations, common law and statutory fraud, and negligent

misrepresentation.

We review a trial court’s decision on a motion for directed verdict de novo,

using the same standard of review as a legal sufficiency, or no-evidence, challenge.

See JPMorgan Chase Bank, N.A. v. Orca Assets, G.P., L.L.C., 546 S.W.3d 648, 653

(Tex. 2018); City of Keller, 168 S.W.3d at 823. The legal sufficiency test is the same

in directed verdicts as in summary judgments and judgments notwithstanding the

verdict: we consider the evidence in the light most favorable to the nonmovant’s

case. See City of Keller, at 823-24. Therefore, a directed verdict is proper if the

record reflects: (1) a complete absence of evidence of a vital fact; (2) the court is

barred by rules of law or evidence from giving weight to the only evidence offered

to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a

mere scintilla; or (4) the evidence conclusively establishes the opposite of the vital

fact. Id. at 810. As the trial court observed, “[t]he final test for legal sufficiency must

always be whether the evidence at trial would enable reasonable and fair-minded

people to reach the verdict under review.” Id. at 827.

Singh does not dispute that he purchased the property “as is,” but contends

that exceptions to an “as is” purchase apply, enabling him to avoid the effects of an

“as is” provision in the contract. Specifically, Singh argues on appeal, as he did in

28
the trial court, that the Ahmeds may not rely on the “as is” clause, because the

Ahmeds misrepresented or fraudulently concealed the condition of the property.

When a buyer agrees to purchase something “as is,” he agrees to make his

own appraisal of the bargain and to accept the risk that he may be wrong. Prudential

Ins. Co. of Am. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex. 1995) (citation

omitted). When determining the enforceability of an “as is” clause, we consider the

nature of the transaction and the totality of the circumstances, including whether (1)

the “as is” clause is an important part of the basis of the bargain, not an incidental or

boilerplate provision, (2) the parties are sophisticated, of relatively equal bargaining

position, (3) the contract was freely negotiated, and (4) the contract was an arm’s-

length transaction. Id. at 162. Unless exceptions apply, an “as is” agreement negates

a buyer’s claim that the seller caused his injury. Id. at 161. Exceptions to an “as is”

agreement include a seller’s fraudulent representation or concealment of

information. Id. at 162. A seller similarly may not enjoy the protection of “as is”

language if he has impaired the buyer’s ability to inspect the property. Id.

In this case, the trial court applied the no-evidence standard to find that Singh

offered no evidence of some of the elements of his causes of action. Singh’s

remaining causes of action have certain elements in common: misrepresentation,

reliance/causation, and damages. See id. at 160-61. Absent evidence of any of these

elements, Singh’s claim must fail. See id. We therefore examine the Ahmeds’

29
knowledge of the condition of the property and the information the Ahmeds provided

Singh before the May 21, 2021 closing date to determine whether it supports Singh’s

allegations.

The record discloses that in their April 5, 2021 Seller’s Disclosure Notice, the

Ahmeds did not disclose any bulkhead damage and also omitted any reference to

having received an inspection report from a previous potential buyer. Since

Munsinger’s testimony, viewed in the light most favorable to Singh, shows that the

Ahmeds knew that an area of the bulkhead was damaged, and since other testimony

shows that Ahmed gave Singh an inspection report from earlier in 2021, Ahmed did

fail to disclose these matters on his Seller’s Disclosure Notice. See Tex. Prop. Code

Ann. § 5.008; see also Hall v. Rogers, No. 01-19-00408-CV, 2021 Tex. App. LEXIS

5143, at *16, 20 (Tex. App.—Houston [1st Dist.] June 29, 2021, pet. denied) (mem.

op.). These omissions, however, do not support Singh’s arguments of actionable

misrepresentation, since Singh could not have relied on them, despite his contrary

testimony. Singh testified that he relied on the Ahmeds’ Seller’s Disclosure Notice

and the prospective buyer’s inspection report and would not have bought the

property had these documents shown the pool, retaining wall, and bulkhead issues

that appeared later. Ahmed, however, disclosed bulkhead damage in a text message

to Singh and disclosed the existence of the inspection report by giving it to Singh.

30
Singh therefore cannot use the inaccurate Seller’s Disclosure Notice to support his

case.

According to the Seller’s Disclosure Notice and section 5.008 of the Texas

Property Code, a seller need disclose only those conditions known to the seller as of

the date of the notice. Tex. Prop. Code. Ann. § 5.008(b). The Seller’s Disclosure

Notice states, in compliance with the Property Code:

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.

See id.

Neither the Seller’s Disclosure Notice nor the Texas Property Code requires

a seller to disclose a condition unknown to him. See Prudential Ins. Co., 896 S.W.2d

at 162-63. Singh has cited no authority requiring a seller to disclose a condition that

may develop in the future. Therefore, if a seller is unaware of a property condition,

he need not disclose it. See Hall, 2021 Tex. App. LEXIS 5143, at **13-15.

Singh claims that the Ahmeds fraudulently failed to disclose the pool and

bulkhead issues that later became apparent. However, there was no evidence to show

that the Ahmeds knew that the bulkhead and pool might later require repairs costing

a total of $654,000. Although Munsinger testified that she assessed the bulkhead

damage and gave the Ahmeds a repair quotation, the record does not show that she
31
evaluated more of the bulkhead than the pushed-out section or that she told the

Ahmeds it would cost more than $60,000 to repair that damage. 21 On this record, it

cannot be said that the Ahmeds were aware of more bulkhead damage than they

disclosed or that the repair cost would exceed $60,000.

The evaluation by Singh’s project manager further undermines Singh’s

allegation of detrimental reliance on the Ahmeds’ disclosures. Since the project

manager inspected the pushed-out portion of the bulkhead and told Singh he could

“get this taken care of[,]” Singh relied on his project manager, not the Ahmeds,

regarding the bulkhead issue. See Grove v. Franke, No. 09-18-00119-CV, 2019 Tex.

App. LEXIS 9165, at *13 (Tex. App.—Beaumont Oct. 17, 2019, pet. denied.) (mem.

op.).

We have previously considered and rejected arguments similar to Singh’s. See

generally Hall, 2021 Tex. App. LEXIS 5143, at *20; Grove, 2019 Tex. App. LEXIS

9165, at *17. In both Hall and Grove, the house buyers sued the sellers, contending

that alleged failures to disclose property conditions constituted DTPA violations,

statutory and common-law fraud, fraudulent inducement, and negligent

misrepresentation. Hall, 2021 Tex. App. LEXIS 5143, at **2-3; Grove, 2019 Tex.

App. LEXIS 9165, at **8-12. In affirming the trial courts’ directed verdict in Hall

Although Munsinger stated that she assessed over 200 feet of bulkhead and
21

that it would cost $400,000 to $500,000 to repair, the trial court excluded this expert
testimony on the basis that Munsinger’s opinion was not properly disclosed.
32
and summary judgment in Grove, we reviewed the Prudential Insurance Company

factors in light of the “as is” contract provisions and determined that the records

revealed no evidentiary grounds to avoid the “as is” sale. Hall, 2021 Tex. App.

LEXIS 5143, at **11-13, 20; Grove, 2019 Tex. App. LEXIS 9165, at **9-14.

Here, as the trial court found, Singh was an experienced real estate investor

who relied on his project manager’s evaluation of the bulkhead damage. Also, the

sales contract between Singh and the Ahmeds was freely negotiated and the parties

possessed relatively equal bargaining power. Additionally, the “as is” clause in the

contract was not an incidental or boilerplate contractual provision, since the contract

“provided two options from which the parties could choose, and [buyer] agreed to

accept the property in its present condition.” See Grove, 2019 Tex. App. LEXIS

9165, at **9-10. Such a choice is, by definition, not boilerplate. Id. (citing Van

Duren v. Chife, 569 S.W.3d 176, 187 (Tex. App.—Houston [1st Dist.] 2018, no pet.].

Since the Ahmeds satisfied the Prudential criteria for enforcing an “as is” clause,

and since Singh produced no evidence that the Ahmeds fraudulently concealed

information known to them, fraudulently induced Singh to enter the contract, or

prevented Singh from inspecting the property, the “as is” clause is enforceable. See

Prudential Ins. Co., 896 S.W.2d at 161-64.

As for the damage element of Singh’s claims is concerned, the correct

measure of damages for damage to real property depends on whether the damage is

33
temporary or permanent. See Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.),

L.P., 449 S.W.3d 474, 476 (Tex. 2014). If the damage is temporary, then any

damages awarded are “commensurate with the cost of restoring [the] property, but

when an injury to the same property is permanent,” any damages would be measured

by “the loss in the fair market value to the property as a whole.” Id. The Gilbert

Wheeler Court differentiated between temporary and permanent damage, stating:

An injury to real property is considered permanent if (a) it cannot be
repaired, fixed, or restored, or (b) even though the injury can be
repaired, fixed, or restored, it is substantially certain that the injury will
repeatedly, continually, and regularly recur, such that future injury can
be reasonably evaluated. Conversely, an injury to real property is
considered temporary if (a) it can be repaired, fixed, or restored, and
(b) any anticipated recurrence would only be occasional, irregular,
intermittent, and not reasonably predictable, such that future injury
could not be estimated with reasonable certainty.

Id. at 480.

If, however, the cost of repair disproportionately exceeds the diminution in

the value of the property, then a temporary injury may be considered permanent

pursuant to the economic feasibility rule. Id. at 481-82. In that event, the damages

would be measured by the reduced property value rather than the cost of repair. Id.

Although the Ahmeds did not damage Singh’s property in the sense that the

Ahmeds did not enter the property after the sale and cause damage, we have used

the above approach to determine the proper measure of damages due, if any, under

analogous circumstances. See Gicor, Inc. v. Brewer, No. 09-21-00222-CV, 2023

34
Tex. App. LEXIS 5545, at *39 (Tex. App.—Beaumont July 27, 2023, pet. denied)

(mem. op.) (citing Gilbert Wheeler, 449 S.W.3d at 481).

Had Singh avoided the “as is” contract term and prevailed on any of his

theories of recovery, the next inquiry would be whether the damages to the property

were permanent or temporary. Although the trial court considered both possibilities,

negating Singh’s possible recovery regardless of the temporary or permanent nature

of the injury, we believe that the ability to repair the damage, as Gultek indicated

when he testified that his company designed a repair plan and did work at the

property, means that the damage was temporary. The damage therefore would be

measured by the reasonable cost of necessary repairs unless those costs greatly

exceed the property’s value reduction. Since the projected repair cost is $654,000,

and that amount is below the amount Singh believed the property value declined,

Singh’s recovery, if any, would be limited to the $654,000 repair cost, provided that

this amount could be proven to be reasonable and necessary. See McGinty v. Hennen,

372 S.W.3d 625, 627-29 (Tex. 2012) (requiring evidence of reasonableness and

necessity of repair costs sought in the context of a construction contract). Since the

record shows no evidence that the projected repair costs for either the bulkhead or

the pool are reasonable and necessary, there is no evidence of Singh’s damages. See

id.

We overrule Singh’s first issue.

35
Issue Two: Singh’s Expert Disclosure

Singh’s second issue claims that the trial court erroneously excluded

Munsinger’s expert testimony and that this ruling “was an abuse of discretion that

amounted to a death penalty sanction.”

We review a trial court’s ruling on the admission of evidence under an abuse

of discretion standard of review. See Gharda USA, Inc. v. Control Sols., Inc., 464

S.W.3d 338, 347 (Tex. 2015) (citations omitted). A trial court abuses its discretion

when it acts in an arbitrary or unreasonable manner, or if it acts without reference to

any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241-42 (Tex. 1985). We will uphold the trial court’s decision if it is

within the zone of reasonable disagreement. Windrum v. Kareh, 581 S.W.3d 761,

770 (Tex. 2019) (addressing an allegedly conclusory expert opinion).

The trial court excluded Munsinger’s expert testimony as to the scope and cost

of the bulkhead repair because Singh did not properly disclose Munsinger’s opinion

as required by the DCO. In the trial court’s words, Singh’s expert designation did

not comply with the DCO because it did not state, “Here are my opinions back in

2019, 2021. I went out there and inspected[.] Here’s what we found and here’s what

we said would remedy it.”

We confronted a similar situation in Fults v. Standley, No. 09-22-00126-CV,

2025 Tex. App. LEXIS 5653, at **26-28 (Tex. App.—Beaumont July 31, 2025, pet.

36
filed) (mem. op.). In Fults, the plaintiff’s expert designation stated that an expert

witness would testify

[C]oncerning the nature and extent of Plaintiff’s injuries, the proximate
cause thereof, their examination and treatment of Plaintiff, Plaintiff’s
prognosis, and the reasonableness and necessity of their medical bills,
chiropractic treatments, as well as the amount and necessity of
Plaintiff’s future medical, chiropractic and treatment expenses and
health care costs.

Fults, 2025 Tex. App. LEXIS 5653, at **6-7.

Relying on both its DCO and Rule 195.5, the Fults trial court excluded the

plaintiff’s expert, stating that the plaintiff’s expert disclosure was inadequate. Id. at

**16-18. We affirmed the trial court’s judgment. Id. at *36; see also In re Ybarra,

No. 09-22-00212-CV, 2022 Tex. App. LEXIS 6338, at **10-12 (Tex. App.—

Beaumont Aug. 25, 2022, no pet.) (mem. op.). “The purpose of this pretrial

disclosure rule is to give the opposing party sufficient information about the expert’s

opinions to prepare to cross-examine the expert and to prepare expert rebuttal

evidence.” Miller v. Kennedy & Minshew, 142 S.W.3d 325, 348 (Tex. App.—Fort

Worth 2003, pet. denied.).

Here, the trial court made a similar ruling for a similar reason. Rule

195.5(a)(3) requires disclosure of “the general substance of the experts mental

impressions and opinions and a brief summary of the basis for them[.]” Tex. R. Civ.

P. 195.5(a)(3). The trial court’s DCO went farther, requiring not only the information

required by the foregoing Rule, but the opinions to be offered by each expert. In
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addition, the DCO cautions that a Rule 195 disclosure will not satisfy the disclosure

requirements of the DCO. The Ahmeds’ counsel objected that Singh’s disclosure

failed to include Munsinger’s opinions and thus did not “g[i]ve us the impression

that we need[ed] to depose this witness or get a rebuttal witness for this witness.” In

other words, Singh’s disclosure failed to give the opposing party sufficient

information about the expert’s opinions to prepare to cross-examine the expert and

to prepare expert rebuttal evidence. Miller, 142 S.W.3d at 348.

Since Singh’s expert disclosure provided only a general description of the

subjects on which Munsinger would testify--and did not include a summary of

Munsinger’s opinions, the opinions, or the basis for those opinions, so as to enable

the Ahmeds to prepare to cross-examine or rebut that proposed expert testimony--

the trial court was within its discretion in excluding the expert portion of

Munsinger’s testimony. We conclude the trial court did not abuse its discretion in

making this ruling. We overrule Singh’s second issue.

CONCLUSION

Having overruled both of Singh’s appellate issues, we affirm the trial court’s

judgment.

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AFFIRMED.

JAY WRIGHT
Justice

Submitted on March 31, 2026
Opinion Delivered May 21, 2026

Before Golemon, C.J., Johnson and Wright, JJ.

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