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Click here for the full text of this decision FACTS:Jacqueline Head appeals from the trial court’s grant of summary judgment in favor of U.S. Inspect DFW Inc. f/k/a Affordable Inspections Inc. and John Fox. In 1998, the FTW Living Trust, through its trustee Leonard Rodes, contracted to purchase a home in Fort Worth from Alfred and Susan Finley for the benefit of Jacqueline Head, as sole beneficiary of the FTW Living Trust. Head entered into a written agreement with Affordable for a “Real Estate Inspection” of the home. The contract was signed by Head and by John Fox, identified as “Inspector.” Head and Leonard Rodes, as trustee under the FTW Living Trust, sued the sellers of the residence, Alfred and Susan Finley; Affordable; and John Fox. On Sept. 21, 2001, a “First Amended Original Petition” was filed leaving Head, individually and as successor trustee under the FTW Living Trust, as the sole plaintiff. Head asserted claims for violations of the DTPA and fraud against the Finleys and breach of contract, breach of warranty, negligence and DTPA violations against Affordable and Fox. HOLDING:The court affirms the trial court’s summary judgment as to Head’s DTPA claims based upon misrepresentation, failure to disclose and unconscionability, as well as on her negligence and breach of contract causes of action. The court reverses the summary judgment as to Head’s claim for breach of express warranty as a violation of the DTPA, and remand that portion of the case to the trial court. The court reverses the award of attorneys’ fees in favor of Affordable and Fox, and remands both claims to the trial court. The court cannot agree with Head’s claim that the inspection report misrepresented “facts,” rather than opinions, by stating that the roof and attic were performing their intended function. By the inspection agreement, the appellees expressly agreed to provide an inspection report that would “contain the opinion of the Inspector on the need for repair or replacement of the items inspected” and that “[i]t is agreed that opinions expressed by the Inspector are only opinions . . . .” Thus, the essence of the services to be provided by Affordable and Fox was to render professional opinions, for which any liability is exempted from the DTPA by the professional services exemption. The condition of the attic and roof at the time of the inspection was the very subject of the opinions agreed to be provided. The claimed misrepresentation as to the condition of the attic and roof in the report can only be characterized as “opinion.” It is self-evident that the exception sought to be invoked by Head for “misrepresentation of material fact that cannot be characterized as . . . opinion” clearly does not apply. Characterizing the opinions as to the existing condition of the roof and attic contained in the report as “facts” as to existing conditions does not change their nature as opinions. Likewise, Head’s claim that Appellees made an express representation by promising an inspection by a “licensed real estate inspector” and her complaint that an apprentice, unsupervised by a licensed real estate inspector, performed the inspection instead relate directly to the level of expertise necessary for the opinions Appellees agreed to furnish. The court holds that the trial court did not err in granting the motion for summary judgment as to Head’s claims of misrepresentations under the DTPA. Head’s complaint regarding the failure to have a licensed real estate inspector perform the inspection is based upon a term in the inspection agreement. Thus, her claim that the appellees provided a report based upon an inspection only by an apprentice is, in effect, a claim that the appellees failed to fulfill a term of the contract. Without more, failure to perform a term of a contract is simply not a violation of the DTPA. The court holds that Head has not met her burden to produce evidence raising a genuine issue of material fact as to her failure to disclose claim so as to avoid the professional services exemption. Although she alleges a failure to disclose information, mere nondisclosure of material information is not enough to establish an actionable DTPA claim. Head did not produce any evidence that Affordable and Fox withheld information with the intent to induce her into the contract. Head contends she raised an issue of fact under the third exception to the professional services exemption, to the effect that Affordable and Fox engaged in unconscionable conduct that took advantage of her “lack of knowledge to a grossly unfair degree.” Although Head makes one conclusory statement that Affordable and Fox took advantage of her to a grossly unfair degree, and although she stated in her affidavit that she relied on Fox’s statements, she failed to show how her lack of knowledge was taken advantage of to a grossly unfair degree. The contract between the parties provided that a “licensed real estate inspector” would conduct the inspection. This was a promise made by Affordable and Fox as to the quality of future services to be provided. Head has claimed that an apprentice inspector was allowed to inspect the roof without supervision and that Fox never personally inspected the roof. Thus, taking Head’s allegations as true, although Head did receive inspection services, they arguably did not conform to the quality of the services bargained for. conclude that there is a fact issue as to whether Affordable and Fox breached an express warranty that a licensed inspector would perform the inspection in conformity with industry standards; as a result, the trial court erred in applying the professional services exemption to bar Head’s claim for breach of an express warranty. Because there is a fact issue as to breach of express warranty under the DTPA, summary judgment was not proper on this issue. The trial court found that Head’s damages were limited to the contract price of Affordable and Fox’s services, $348.27. Head argues that the limitation of liability clause is unconscionable and against public policy. The court holds that the limitation of liability clause in the Inspection Agreement is not unconscionable. OPINION:Anne Gardner, J.; Cayce, C.J.; Gardner and McCoy, JJ.

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