Preview
FILED
12/19/2023 4:03 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Debra Clark DEPUTY
CAUSE NO. DC-23-01544
VANESSA ANNE BAMBACK § IN THE DISTRICT COURT
§
§
VS. §
§ 134th JUDICIAL DISTRICT
KYMBERLY HARRIS-PRIMM, §
GUILDFORD MANAGEMENT, LLC §
d/b/a KELLER WILLIAMS REALTY §
PRESTON ROAD, AND §
STEPHEN HARGROVE § DALLAS COUNTY, TEXAS
DEFENDANTS KYMBERLY HARRIS-PRIMM, GUILDFORD MANAGEMENT, LLC
d/b/a KELLER WILLIAMS REALTY PRESTON ROAD AND STEPHEN HARGROVE’S
MOTION FOR NO EVIDENCE SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF THE COURT:
COME NOW Defendants Kimberly Harris-Primm, Guildford Management, LLC
d/b/a Keller Williams Realty Preston Road and Stephen Hargrove (collectively “Keller
Williams Defendants”) and file this, their No Evidence Motion for Summary Judgment as
to all of Plaintiffs’ causes of action pursuant to Texas Rules of Civil Procedure 166(a)(i)
and in the alternative, as to those causes of action for which Plaintiff presents insufficient
evidence to withstand summary judgment. In support of this motion, Keller Williams
Defendants would show the Court:
I.
INTRODUCTION
1. Plaintiff Vanessa Anne Bamback (hereinafter, “Plaintiff”) alleges that Keller
Williams Defendants, as Plaintiff’s seller representative for Plaintiff’s sale of her home
located at 5806 Royal Crest Drive, Dallas, Texas 75230 (the “Property”) caused her
damages by allowing her to sell her home on February 5, 2021 for $155,000 less than it
sold for three months later after she had moved out of the Property. Based upon these
allegations, Plaintiff asserts claims against Keller Williams Defendants for breach of
Defendants’ Motion for No Evidence Summary Judgment 1530032.1
Cause No: DC-23-01544 Page 1
fiduciary duty and fraud by misrepresentation. Keller Williams Defendants assert that they
are entitled to summary judgment on each of these claims on a no evidence basis.
II.
STANDARD OF REVIEW
2. After adequate time for discovery, a defendant, without presenting summary
judgment evidence, may move for summary judgment on the grounds that there is no
evidence on one or more elements of a claim on which the plaintiff will have the ultimate
burden of proof at trial. Tex. R. Civ. P. 166a(i). In a no-evidence motion for summary
judgment, the movant must specify the elements of the non-movant's cause of action on
which there is no evidence. Id. The burden then shifts to the non-movant to produce more
than a scintilla of evidence as to the challenged elements. Moore v. K-Mart Corp., 981
S.W.2d 266, 269 (Tex.App.—San Antonio 1998, pet. denied); see Ford Motor Co. v.
Ridgeway, 135 S.W.3d 598, 600 (Tex. 2004). If the non-movant is unable to meet this
burden, the trial court must grant the motion. Moore, 981 S.W.3d at 269. A non-movant
fails to produce more than a scintilla of evidence when the evidence is "so weak as to do
no more than create a mere surmise or suspicion" of a fact. Kindred v. Con-Chem, Inc.,
650 S.W.2d 61, 63 (Tex.1983).
3. Pursuant to Rule 166a(i), when a no-evidence motion for summary
judgment is filed after the discovery period for the case, the motion is presumed timely.
See Tex. R. Civ. P. 166a(i) comments & notes. Additionally, should a plaintiff not plead a
specific discovery level, level 2 discovery is the default level. See Tex. R. Civ. P. 190.3(a)
(If the plaintiff does not plead a discovery level in its original petition, the case is
automatically a Level 2 case. Tex. R. Civ. P. 190 cmt. 1). Here, the Plaintiff filed her
Original Petition on February 2, 2023. This matter is set for trial February 12, 2024.
Therefore, Summary judgment is timely and appropriate as to Keller Williams Defendants.
Defendants’ Motion for No Evidence Summary Judgment 1530032.1
Cause No: DC-23-01544 Page 2
III.
ARGUMENTS AND AUTHORITIES AS TO KELLER WILLIAMS DEFENDANTS’ NO
EVIDENCE MOTION FOR SUMMARY JUDGMENT
4. Plaintiff’s causes of action against Keller Williams Defendants are set forth
in her Original Petition. For the reasons set forth herein, Keller Williams Defendants are
entitled to summary judgment on a no evidence basis for each of Plaintiff’s claims.
A. No Evidence of Breach of Fiduciary Duty
5. To prevail on her claim for breach of fiduciary duty Plaintiff must show (1)
the existence of a fiduciary duty; (2) breach of the duty; (3) causation; and (4) damages.
First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex.
2017).
6. Plaintiff cannot provide competent summary judgment evidence to
demonstrate the following elements of her claim of breach of fiduciary duty: (1) there was
a fiduciary duty; (2) there was a breach of that fiduciary duty; (3) the breach caused
damages; and (4) actual damages of the Plaintiff. Consequently, Keller Williams
Defendants are entitled to summary judgment on a no evidence basis because Plaintiff
cannot provide this Court with any evidence to support each element of her cause of
action for breach of fiduciary duty.
B. No Evidence of Fraud by Misrepresentation
7. To prevail on her claims of fraud by misrepresentation, Plaintiff must
demonstrate proof of the following elements: (1) Keller Williams Defendants made a
representation to the Plaintiff; (2) the representation was material; (3) the representation
was false; (4) when Keller Williams Defendants made the representation, Keller Williams
Defendants: (a) knew the representation was false, or (b) made the representation
recklessly, as a positive assertion, and without knowledge of its truth; (5) Keller Williams
Defendants’ Motion for No Evidence Summary Judgment 1530032.1
Cause No: DC-23-01544 Page 3
Defendants made the representation with the intent that the Plaintiff act on it; (6) the
Plaintiff relied on the representation; and (7) the representation caused the Plaintiff injury.
JPMorgan Chase Bank v. Orca Assets G.Pl., L.L.C., 546 S.W.3d 648 (653 (Tex. 2018).
8. Plaintiff cannot prevail on her cause of action for fraud by misrepresentation
because there is no evidence that Keller Williams Defendants made a representation to
the Plaintiff that was both material and false. Additionally, there is no evidence that Keller
Williams Defendants knew any alleged representation was false or made the
representation recklessly, as a positive assertion, and without knowledge of its truth.
There is also no evidence that Keller Williams Defendants made any representation to
the Plaintiff with the intent that the Plaintiff act on the representation. There is no evidence
that Keller Williams Defendants intended to deceive Plaintiff in the listing or sale of her
home. Lastly, there is no evidence that Plaintiff relied on any representation from Keller
Williams Defendants that caused Plaintiff injury. Accordingly, Keller Williams Defendants
are entitled to summary judgment on a no evidence basis because Plaintiff cannot provide
this Court with any evidence to support each element of her cause of action for fraud.
C. No Evidence of Exemplary Damages and Attorneys’ Fees.
9. Because all of the Plaintiff’s causes of action fail there is no evidence of a
cause of action to support a request for exemplary damages or for recovery of attorneys’
fees.
IV.
CONCLUSION AND PRAYER
10. Keller Williams Defendants have shown that adequate time for discovery
has passed and that Keller Williams Defendants are entitled to summary judgment on all
of Plaintiff’s claims. As a matter of law, Keller Williams Defendants are entitled to
summary judgment on a no evidence basis as to Plaintiff’s claims for breach of fiduciary
Defendants’ Motion for No Evidence Summary Judgment 1530032.1
Cause No: DC-23-01544 Page 4
duty and fraud because Plaintiff cannot provide competent summary judgment evidence
to demonstrate one or more essential elements of her causes of action. For these
reasons, Keller Williams Defendants ask for summary judgment on all issues, all of
Plaintiff’s claims, and theories of recovery.
11. Wherefore, Premises Considered, Keller Williams Defendants pray that this
Court grant this No Evidence Motion for Summary Judgment; that Plaintiff takes nothing
by reason of this suit.
12. Alternatively, if this Court is not inclined to grant summary judgment as to
all of Plaintiff’s causes of action, Keller Williams Defendants request that this Court grant
partial summary judgment and notify the parties of what remaining causes of action need
be prepared for trial. Keller Williams Defendants further request that they have such other
and further relief, at law or in equity, as they may be justly entitled to receive.
Respectfully submitted,
/s/ Jennifer M. Covington
Jennifer M. Covington
State Bar No. 24013078
Pedro M. Conejo Zavala
State Bar No. 24118356
BRACKETT & ELLIS,
A Professional Corporation
100 Main Street
Fort Worth, TX. 76102-3090
817.338.1700
817.870.2265 – fax
jcovington@belaw.com
pzavala@belaw.com
ATTORNEYS FOR DEFENDANTS
Defendants’ Motion for No Evidence Summary Judgment 1530032.1
Cause No: DC-23-01544 Page 5
CERTIFICATE OF SERVICE
I hereby certify that on December 19, 2023, a true and correct copy of the above
and foregoing document has been served upon all counsel of record, in accordance with
the Texas Rules of Civil Procedure.
/s/ Jennifer M. Covington
Jennifer M. Covington
Defendants’ Motion for No Evidence Summary Judgment 1530032.1
Cause No: DC-23-01544 Page 6
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Darla Linker on behalf of Jennifer Covington
Bar No. 24013078
dlinker@belaw.com
Envelope ID: 82730924
Filing Code Description: No Evidence Motion For Summary Judgment
Filing Description:
Status as of 12/19/2023 4:19 PM CST
Associated Case Party: GUILDFORD MANAGEMENT, LLC D/B/A KELLER
WILLIAMS REALTY PRESTON ROAD
Name BarNumber Email TimestampSubmitted Status
Jennifer Covington jcovington@belaw.com 12/19/2023 4:03:30 PM SENT
Darla Linker dlinker@belaw.com 12/19/2023 4:03:30 PM SENT
Pedro Conejo Zavala pzavala@belaw.com 12/19/2023 4:03:30 PM SENT
Jeana Burke jburke@belaw.com 12/19/2023 4:03:30 PM ERROR
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Francine Ly fly@dallascourts.org 12/19/2023 4:03:30 PM SENT
Sachi Dave sachi@daverodelaw.com 12/19/2023 4:03:30 PM SENT
Preview
FILED 12/19/2023 4:03 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Debra Clark DEPUTY CAUSE NO. DC-23-01544 VANESSA ANNE BAMBACK § IN THE DISTRICT COURT § § VS. § § 134th JUDICIAL DISTRICT KYMBERLY HARRIS-PRIMM, § GUILDFORD MANAGEMENT, LLC § d/b/a KELLER WILLIAMS REALTY § PRESTON ROAD, AND § STEPHEN HARGROVE § DALLAS COUNTY, TEXAS DEFENDANTS KYMBERLY HARRIS-PRIMM, GUILDFORD MANAGEMENT, LLC d/b/a KELLER WILLIAMS REALTY PRESTON ROAD AND STEPHEN HARGROVE’S MOTION FOR NO EVIDENCE SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF THE COURT: COME NOW Defendants Kimberly Harris-Primm, Guildford Management, LLC d/b/a Keller Williams Realty Preston Road and Stephen Hargrove (collectively “Keller Williams Defendants”) and file this, their No Evidence Motion for Summary Judgment as to all of Plaintiffs’ causes of action pursuant to Texas Rules of Civil Procedure 166(a)(i) and in the alternative, as to those causes of action for which Plaintiff presents insufficient evidence to withstand summary judgment. In support of this motion, Keller Williams Defendants would show the Court: I. INTRODUCTION 1. Plaintiff Vanessa Anne Bamback (hereinafter, “Plaintiff”) alleges that Keller Williams Defendants, as Plaintiff’s seller representative for Plaintiff’s sale of her home located at 5806 Royal Crest Drive, Dallas, Texas 75230 (the “Property”) caused her damages by allowing her to sell her home on February 5, 2021 for $155,000 less than it sold for three months later after she had moved out of the Property. Based upon these allegations, Plaintiff asserts claims against Keller Williams Defendants for breach of Defendants’ Motion for No Evidence Summary Judgment 1530032.1 Cause No: DC-23-01544 Page 1 fiduciary duty and fraud by misrepresentation. Keller Williams Defendants assert that they are entitled to summary judgment on each of these claims on a no evidence basis. II. STANDARD OF REVIEW 2. After adequate time for discovery, a defendant, without presenting summary judgment evidence, may move for summary judgment on the grounds that there is no evidence on one or more elements of a claim on which the plaintiff will have the ultimate burden of proof at trial. Tex. R. Civ. P. 166a(i). In a no-evidence motion for summary judgment, the movant must specify the elements of the non-movant's cause of action on which there is no evidence. Id. The burden then shifts to the non-movant to produce more than a scintilla of evidence as to the challenged elements. Moore v. K-Mart Corp., 981 S.W.2d 266, 269 (Tex.App.—San Antonio 1998, pet. denied); see Ford Motor Co. v. Ridgeway, 135 S.W.3d 598, 600 (Tex. 2004). If the non-movant is unable to meet this burden, the trial court must grant the motion. Moore, 981 S.W.3d at 269. A non-movant fails to produce more than a scintilla of evidence when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of a fact. Kindred v. Con-Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). 3. Pursuant to Rule 166a(i), when a no-evidence motion for summary judgment is filed after the discovery period for the case, the motion is presumed timely. See Tex. R. Civ. P. 166a(i) comments & notes. Additionally, should a plaintiff not plead a specific discovery level, level 2 discovery is the default level. See Tex. R. Civ. P. 190.3(a) (If the plaintiff does not plead a discovery level in its original petition, the case is automatically a Level 2 case. Tex. R. Civ. P. 190 cmt. 1). Here, the Plaintiff filed her Original Petition on February 2, 2023. This matter is set for trial February 12, 2024. Therefore, Summary judgment is timely and appropriate as to Keller Williams Defendants. Defendants’ Motion for No Evidence Summary Judgment 1530032.1 Cause No: DC-23-01544 Page 2 III. ARGUMENTS AND AUTHORITIES AS TO KELLER WILLIAMS DEFENDANTS’ NO EVIDENCE MOTION FOR SUMMARY JUDGMENT 4. Plaintiff’s causes of action against Keller Williams Defendants are set forth in her Original Petition. For the reasons set forth herein, Keller Williams Defendants are entitled to summary judgment on a no evidence basis for each of Plaintiff’s claims. A. No Evidence of Breach of Fiduciary Duty 5. To prevail on her claim for breach of fiduciary duty Plaintiff must show (1) the existence of a fiduciary duty; (2) breach of the duty; (3) causation; and (4) damages. First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017). 6. Plaintiff cannot provide competent summary judgment evidence to demonstrate the following elements of her claim of breach of fiduciary duty: (1) there was a fiduciary duty; (2) there was a breach of that fiduciary duty; (3) the breach caused damages; and (4) actual damages of the Plaintiff. Consequently, Keller Williams Defendants are entitled to summary judgment on a no evidence basis because Plaintiff cannot provide this Court with any evidence to support each element of her cause of action for breach of fiduciary duty. B. No Evidence of Fraud by Misrepresentation 7. To prevail on her claims of fraud by misrepresentation, Plaintiff must demonstrate proof of the following elements: (1) Keller Williams Defendants made a representation to the Plaintiff; (2) the representation was material; (3) the representation was false; (4) when Keller Williams Defendants made the representation, Keller Williams Defendants: (a) knew the representation was false, or (b) made the representation recklessly, as a positive assertion, and without knowledge of its truth; (5) Keller Williams Defendants’ Motion for No Evidence Summary Judgment 1530032.1 Cause No: DC-23-01544 Page 3 Defendants made the representation with the intent that the Plaintiff act on it; (6) the Plaintiff relied on the representation; and (7) the representation caused the Plaintiff injury. JPMorgan Chase Bank v. Orca Assets G.Pl., L.L.C., 546 S.W.3d 648 (653 (Tex. 2018). 8. Plaintiff cannot prevail on her cause of action for fraud by misrepresentation because there is no evidence that Keller Williams Defendants made a representation to the Plaintiff that was both material and false. Additionally, there is no evidence that Keller Williams Defendants knew any alleged representation was false or made the representation recklessly, as a positive assertion, and without knowledge of its truth. There is also no evidence that Keller Williams Defendants made any representation to the Plaintiff with the intent that the Plaintiff act on the representation. There is no evidence that Keller Williams Defendants intended to deceive Plaintiff in the listing or sale of her home. Lastly, there is no evidence that Plaintiff relied on any representation from Keller Williams Defendants that caused Plaintiff injury. Accordingly, Keller Williams Defendants are entitled to summary judgment on a no evidence basis because Plaintiff cannot provide this Court with any evidence to support each element of her cause of action for fraud. C. No Evidence of Exemplary Damages and Attorneys’ Fees. 9. Because all of the Plaintiff’s causes of action fail there is no evidence of a cause of action to support a request for exemplary damages or for recovery of attorneys’ fees. IV. CONCLUSION AND PRAYER 10. Keller Williams Defendants have shown that adequate time for discovery has passed and that Keller Williams Defendants are entitled to summary judgment on all of Plaintiff’s claims. As a matter of law, Keller Williams Defendants are entitled to summary judgment on a no evidence basis as to Plaintiff’s claims for breach of fiduciary Defendants’ Motion for No Evidence Summary Judgment 1530032.1 Cause No: DC-23-01544 Page 4 duty and fraud because Plaintiff cannot provide competent summary judgment evidence to demonstrate one or more essential elements of her causes of action. For these reasons, Keller Williams Defendants ask for summary judgment on all issues, all of Plaintiff’s claims, and theories of recovery. 11. Wherefore, Premises Considered, Keller Williams Defendants pray that this Court grant this No Evidence Motion for Summary Judgment; that Plaintiff takes nothing by reason of this suit. 12. Alternatively, if this Court is not inclined to grant summary judgment as to all of Plaintiff’s causes of action, Keller Williams Defendants request that this Court grant partial summary judgment and notify the parties of what remaining causes of action need be prepared for trial. Keller Williams Defendants further request that they have such other and further relief, at law or in equity, as they may be justly entitled to receive. Respectfully submitted, /s/ Jennifer M. Covington Jennifer M. Covington State Bar No. 24013078 Pedro M. Conejo Zavala State Bar No. 24118356 BRACKETT & ELLIS, A Professional Corporation 100 Main Street Fort Worth, TX. 76102-3090 817.338.1700 817.870.2265 – fax jcovington@belaw.com pzavala@belaw.com ATTORNEYS FOR DEFENDANTS Defendants’ Motion for No Evidence Summary Judgment 1530032.1 Cause No: DC-23-01544 Page 5 CERTIFICATE OF SERVICE I hereby certify that on December 19, 2023, a true and correct copy of the above and foregoing document has been served upon all counsel of record, in accordance with the Texas Rules of Civil Procedure. /s/ Jennifer M. Covington Jennifer M. Covington Defendants’ Motion for No Evidence Summary Judgment 1530032.1 Cause No: DC-23-01544 Page 6 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Darla Linker on behalf of Jennifer Covington Bar No. 24013078 dlinker@belaw.com Envelope ID: 82730924 Filing Code Description: No Evidence Motion For Summary Judgment Filing Description: Status as of 12/19/2023 4:19 PM CST Associated Case Party: GUILDFORD MANAGEMENT, LLC D/B/A KELLER WILLIAMS REALTY PRESTON ROAD Name BarNumber Email TimestampSubmitted Status Jennifer Covington jcovington@belaw.com 12/19/2023 4:03:30 PM SENT Darla Linker dlinker@belaw.com 12/19/2023 4:03:30 PM SENT Pedro Conejo Zavala pzavala@belaw.com 12/19/2023 4:03:30 PM SENT Jeana Burke jburke@belaw.com 12/19/2023 4:03:30 PM ERROR Case Contacts Name BarNumber Email TimestampSubmitted Status Francine Ly fly@dallascourts.org 12/19/2023 4:03:30 PM SENT Sachi Dave sachi@daverodelaw.com 12/19/2023 4:03:30 PM SENT