After series of mistakes, woman's suit ended by appeals court

The SE Texas Record Sep. 23, 2009, 8:17pm

In a double dose of bad luck, Patricia Jones hired a surveyor who measured the wrong lot and a lawyer who didn't file papers in time to preserve a suit she filed over the faulty survey.

Her losing streak continued on Sept. 17, when Ninth District appeals judges in Beaumont affirmed a Montgomery County court order that ended her suit.

"Due process was not denied to her," Justice David Gaultney wrote.

Jones set out with high hopes, asking agent Mark Smith of Keller Williams Realty to help her find a place to build a home. Smith showed her a lot in a subdivision, and Jones decided to buy it.

A surveyor that Smith recommended prepared a survey and set stakes in the ground. Jones paid for a lot, and construction began.

The surveyor, however, had staked the wrong lot.

The lot's true owner told the builder to stop building.

Jones sued Smith and the Keller Williams agency, alleging negligence, fraud, breach of contract, breach of warranty and deceptive trade practices.

Jones claimed Smith showed her the wrong lot and that Smith hired the surveyor.

Smith and Keller Williams agency denied responsibility for the survey and moved for summary judgment.

District Judge Frederick Edwards set a trial date but both sides agreed to delay it 60 days so Smith and Keller Williams could amend their motion.

Smith and Keller Williams amended it, set a hearing and served notice on Jones' lawyer.

Jones' lawyer prepared a response to the motion, but filed it 13 days late. Gaultney wrote that difficulty with electronic filing delayed the motion.

"Jones did not ask permission of the trial court to file her response late," he wrote.

Thirteen days after the response arrived, Edwards granted summary judgment.

Edwards ordered Jones to pay legal fees for Smith and Keller Williams, under state law providing for an award of fees to the winner in a contract dispute.

On appeal, Jones alleged due process violations and sought to reverse the fee award.

On due process, she lost. Gaultney wrote that Smith and Keller Williams set the hearing pursuant to an agreement between lawyers.

"The agreement was reduced to writing and filed with the court," Gaultney wrote.

"Jones had sufficient notice of the summary judgment hearing," he wrote.

"The trial court's order granting summary judgment recites that the trial court considered Jones' response in granting summary judgment," he wrote.

On legal fees, Jones won. Gaultney wrote that the law providing fees didn't apply because she didn't sue for breach of the property contract.

Her petition alleged breach of an oral contract with Smith, he wrote.

"The trial court erred in awarding fees under a written sales contract not at issue in this dispute between Jones and her agent," Gaultney wrote.

Justice Steve McKeithen and Justice Hollis Horton joined the opinion.

Robin Workman represented Smith and Keller Williams on appeal. Alton Stewart represented Jones.

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