## Facts

- John and Janice Kubinsky bought a residence listed by Lynn Neathery, a sales agent affiliated with Van Zandt Realtors, who represented the sellers.
- Within weeks after moving in, the Kubinskys observed cracking around doors and windows and in the slab, which they attributed to foundation problems.
- The Kubinskys sued multiple parties, including the listing agent and her broker, alleging nondisclosure of defects and related misconduct.
- Neathery and Van Zandt Realtors presented summary-judgment evidence denying actual knowledge of foundation defects and denying any obligation to independently investigate or inspect the property for the buyers’ benefit.
- The trial court granted summary judgment for the listing agent and broker and severed those claims; the buyers appealed.

## Issues

1. Whether a seller’s listing agent and broker owe a buyer a duty to independently inspect or investigate a property for latent defects.
2. Whether a listing agent and broker may be liable to a buyer for nondisclosure absent proof of actual knowledge of the defect.
3. Whether real-estate brokerage services are subject to an implied warranty that services will be performed in a good and workmanlike manner.
4. Whether the trial court erred in granting summary judgment and in denying a continuance to obtain additional discovery.

## Decision

- The court of appeals affirmed summary judgment for the listing agent and broker.
- The court held the listing agent and broker had no duty to conduct an independent inspection for defects for the buyer.
- The court held liability to the buyer required proof of nondisclosure of a material defect actually known to the listing agent or broker, and the buyers failed to raise a fact issue on actual knowledge.
- The court rejected an implied-warranty theory for real-estate brokerage services.
- The court held the trial court did not abuse its discretion in denying a continuance for additional discovery.

## Legal Principles

- A listing agent’s and broker’s fiduciary duties run to the party they represent (typically the seller), not to the opposing party, though they must deal fairly with other parties to the transaction.
- A seller’s listing agent and broker generally have no affirmative duty to inspect or investigate a property for latent defects for the benefit of the buyer.
- A listing agent and broker may be liable to a buyer for nondisclosure only if they had actual knowledge of a material defect and failed to disclose it.
- Texas courts will not extend an implied warranty of good and workmanlike performance to real-estate brokerage services in the manner applied to certain construction-related services.
- A continuance to obtain further discovery in response to a summary-judgment motion may be denied where the nonmovant does not show why the discovery is necessary to present facts raising a genuine issue of material fact.

## Conclusion

The court affirmed summary judgment because the seller’s listing agent and broker owed no duty to inspect for defects, the buyers produced no evidence raising a fact issue that the agent or broker actually knew of the foundation problems, and Texas law did not recognize an implied warranty governing the quality of real-estate brokerage services under these circumstances.


Kubinsky v. Van Zandt Realtors, 811 S.W.2d 711 (Tex. App.—Fort Worth 1991, writ denied)