The opinion
Concurring opinion issued April 5, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-09-00728-CV
———————————
PETER FAZIO, SHARI FAZIO, AND ERIC FAZIO, Appellants
V.
CYPRESS/GR HOUSTON I, L.P.; CYPRESS/GR HOUSTON, INC.; AND
CYPRESS EQUITIES, INC., Appellees
and
CYPRESS/GR HOUSTON I, L.P.; CYPRESS/GR HOUSTON, INC.; AND
CYPRESS EQUITIES, INC., Appellants
V.
PETER FAZIO, Appellee
On Appeal from the 129th District Court
Harris County, Texas
Trial Court Case No. 2004-65110
CONCURRING OPINION
I join the en banc majority opinion. Because the disclaimer of reliance and
merger principles at issue in this case have broad application in commercial
contracts, I write separately to address the dissenters’ erroneous analysis of the
parties’ disclaimer of reliance. 1 Although it was not necessary for the en banc
majority to decide this issue to affirm the trial court’s take-nothing judgment 2—
and the en banc majority did not decide the issue—it continues to be my opinion
that it is an independent basis to affirm. 3
This appeal arises from a $7.67 million real-estate transaction between
experienced and sophisticated investors. The fully integrated written agreement
for the purchase and sale of commercial property recited that the buyer would “rely
1
All of my quotations from and other references to the “dissent” are
references to the principal dissenting opinion authored by Justice Keyes.
2
See Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394
(Tex. 1991) (“When the trial court states no reason why judgment n.o.v. was
granted, and the motion for judgment n.o.v. presents multiple grounds upon
which judgment n.o.v. should be granted, the appellant has the burden of
showing that the judgment cannot be sustained on any of the grounds stated
in the motion.”). Contrary to the dissent’s implied assertion, see Dissent at
9, the trial court did not explicitly rule on the disclaimer-of-reliance issue.
The trial court’s December 22, 2008 order granting JNOV did not specify
any particular substantive ground for the ruling.
3
See Fazio v. Cypress/GR Houston I, L.P., No. 01-09-00728-CV, 2012 WL
3524842, at *30–*38 (Tex. App.—Houston [1st Dist.] Aug. 16, 2012)
(Massengale, J., dissenting).
2
solely upon its own investigation with respect to the Property, including, without
limitation, the Property’s . . . economic condition.” The agreement also clearly and
unequivocally expressed an intention to disclaim the buyer’s reliance on the
seller’s representations—and omissions from representations—with respect to the
economic condition of the property, and it disclaimed any seller liability to the
purchaser with respect to such representations or omissions. The question is
whether these contractual provisions should be enforced.
The dissenters would refuse to enforce this contract as written. I disagree,
and would hold that the parties’ disclaimer of reliance foreclosed any subsequent
claim that the buyer was fraudulently induced to enter into the transaction.
I. Effect of fully integrated purchase agreement
The parties’ duties with respect to pre-transaction due diligence were
expressly defined in the Purchase Agreement, which was a fully integrated
contract. The notion that the seller4 breached duties of disclosure arising from
4
The “seller” identified in the LOI was Cypress Equities, and the “seller”
identified in the Purchase Agreement was Cypress GR/Houston I, L.P.
Although the jury found that these entities operated as a single business
enterprise, the trial court granted the defendants’ motion for JNOV and
disregarded that finding. The dissenters’ analysis would require that the jury
finding concerning existence of a single business enterprise be reinstated,
and their opinion treats all Cypress entities as if they were the same party.
In the interest of simplicity, for purposes of my opinion I refer generally to
the “seller” except to the extent specific points depend upon identification of
the particular entity.
3
provisions in the preliminary letter of intent is a flawed premise, because the LOI’s
terms were inconsistent with the final agreement. The due diligence terms of the
LOI, including the provision that “[t]he Seller will provide Buyer with all
information in their possession,” did not become binding obligations of the seller
upon the execution of the Purchase Agreement.
Instead, as the parties expressly contemplated at the time the LOI was
executed, and as routinely occurs in such transactions,5 the terms of the LOI were
My analysis of the contracts at issue makes it unnecessary for me to also
address the alter-ego issue to conclude that that the trial court’s judgment
should be affirmed. I nevertheless note my disagreement with the
dissenters’ conclusory analysis of that issue. See Dissent at 46–48. The
dissenters note that various actions were taken by separate related entities,
but they identify none of the kind of evidence relating to the relationship of
the corporate entities necessary to justify piercing the corporate veil, nor
does it analyze whether the entities’ use of limited liability was illegitimate.
See SSP Partners v. Gladstrong Inves. (USA) Corp., 275 S.W.3d 444, 455
(Tex. 2009). Texas law presumes that separate corporations are distinct
entities. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 798
(Tex. 2002). Contrary to the entire thrust of the dissenters’ discussion of this
issue, an entity or person does not become jointly liable for a corporation’s
obligations “merely because they were part of a single business enterprise”
or “merely because of centralized control, mutual purposes, and shared
finances.” SSP Partners, 275 S.W.3d at 452, 455.
5
See, e.g., Tellepsen Builders, L.P. v. Kendall/Heaton Assocs., Inc., 325
S.W.3d 692, 699 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (cited
with approval in Italian Cowboy Partners, Ltd. v. Prudential Ins. Co., 341
S.W.3d 323, 334 n.6 (Tex. 2011)); John Wood Group USA, Inc. v. ICO, Inc.,
26 S.W.3d 12, 19 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (“the
4
displaced by and replaced with the terms of the Purchase Agreement. That is the
typical resulting effect on a preliminary letter of intent after the parties execute a
subsequent, fully integrated contract. By executing the LOI, the parties
acknowledged that the document was “an expression of understanding and
intention only, and if accepted, will provide guidance for drafting a formal
Purchase Agreement.” The LOI specified that “Terms and conditions set forth in
this proposal shall not be binding on both parties until and unless a formal
Purchase Agreement is executed and delivered to both parties.”
This language did not bind the parties to strict compliance with all
provisions of the LOI before they could execute their negotiated Purchase
Agreement. The entire thrust of the LOI is to the contrary, emphasizing the
contingent, nonbinding nature of the parties’ preliminary negotiating positions.
The LOI was prepared in the form of a letter from Fazio, as buyer, to Cypress
Equities, as seller. Each of the italicized terms in the following excerpts from the
LOI confirms the parties’ intention that the LOI was a preliminary and
fundamentally nonbinding expression of the conditions under which they would
continue to negotiate towards the possible result of a purchase and sale:
basic concept of a letter of intent is to provide the parties with a way to
structure their agreement without entering a binding contract”).
5
• Fazio wrote in the LOI that the letter “will confirm my interest in
negotiating with you for the sale of your Property, referenced above,
under the following terms and conditions.” The reference to
negotiations suggests an ongoing discussion about whether the parties
will consummate a transaction.
• The LOI provided for no earnest money to be paid immediately by
Fazio as buyer, but instead that an escrow deposit of $50,000 would
be made only upon “the execution of a formal Purchase Agreement.”
The escrow deposit would be increased to $100,000 and “become
non-refundable . . . upon the Buyer’s written removal of all
contingencies agreed to in the Purchase Agreement.” This language
confirms the preliminary status of the negotiations because an initial
escrow deposit would not be required unless the parties advanced to
the stage of executing a formal agreement, and the parties
contemplated that even that agreement might be nonbinding in certain
respects, as contingencies might remain such that the escrow might
still be refundable to the buyer.
• With respect to anticipated due diligence, Fazio’s letter proposed that
he would have “30 days from the receipt of the . . . documents to
investigate all aspects of the Property to determine, in Buyer [sic] sole
judgement, if it is acceptable.” This term confirms that Fazio was not
committed to buying the property, as he retained the right to exercise
his “sole judgement” whether to proceed with the purchase.
• Finally, the LOI provided: “This proposal is an expression of
understanding and intention only, and if accepted, will provide
guidance for drafting a formal Purchase Agreement. Terms and
conditions set forth in this proposal shall not be binding on both
parties until and unless a formal Purchase Agreement is executed and
delivered to both parties.” This language confirms the preliminary
and nonbinding nature of everything contained in the LOI. It
expressly contemplated that a later, more formal agreement would be
negotiated if the parties chose to proceed. It also contemplated that
the ultimate terms of the Purchase Agreement would vary from the
terms of the LOI, which would only provide “guidance” at that stage
of the negotiation. Read in context of the entire LOI, the reference to
its terms being nonbinding “until and unless a formal Purchase
Agreement is executed” cannot be read reasonably to indicate that the
6
parties could not continue to negotiate terms or that, upon doing so,
the parties could not document their final understanding and binding
agreement by including a merger clause that confirmed that the final
agreement superseded all prior oral and written agreements.
To recapitulate, the LOI referenced anticipated continuing negotiations, the
contingent nature of the parties’ “expression of understanding and intention,” and
the buyer’s continuing freedom to decide whether the property is acceptable. All
terms were expressly declared to be nonbinding, and there was no indication that
any specific term was intended to survive the negotiations and ultimate execution
of the Purchase Agreement.
Consistent with expectations as articulated in the LOI, that nonbinding
agreement was mooted when Fazio and Cypress GR/Houston I, L.P. entered into
an integrated agreement containing the following merger clause:
Section 11.1 Entire Agreement.
This Agreement contains the entire agreement of the
parties hereto. There are no other agreements, oral or
written, and this Agreement can be amended only by
written agreement signed by the parties hereto, and by
reference, made a part hereof.
This provision declared the intention that the Purchase Agreement constituted “the
entire agreement of the parties,” indicating that the contract was a completely
integrated agreement and not one of multiple agreements addressing multiple
7
aspects of a transaction or the relationship between the parties. 6 One effect of a
merger clause in this circumstance is to invoke the substantive doctrine of the parol
evidence rule, such that all prior negotiations and agreements with regard to the
same subject matter are excluded from consideration, whether they were oral or
written. See, e.g., Edascio, L.L.C. v. NextiraOne L.L.C., 264 S.W.3d 786, 796
(Tex. App.—Houston [1st Dist.] 2008, pet. denied); Ledig v. Duke Energy Corp.,
193 S.W.3d 167, 178 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Baroid
Equip., Inc. v. Odeco Drilling, Inc., 184 S.W.3d 1, 13 (Tex. App.—Houston [1st
Dist.] 2005, pet. denied); see also RESTATEMENT (SECOND) OF CONTRACTS § 215
(1981). “The rule is particularly applicable when the written contract contains a
recital that it contains the entire agreement between the parties or a similarly-
worded merger provision.” Baroid Equip., 184 S.W.3d at 13. Thus, even to the
extent that—in an appropriate case—the LOI might be considered as evidence in
order to establish an allegation of fraud, it cannot be used as a bootstrap merely to
6
Notably, to the extent that Fazio actually contracted with different entities
when executing the LOI and the Purchase Agreement (and not the same
entity in both instances), by its own terms the Purchase Agreement’s merger
clause would not integrate and supersede Fazio’s agreement with Cypress
Equities, which was not a party to the Purchase Agreement. Nevertheless,
that nuance provides no relief to Fazio. Assuming that he dealt with
different entities when entering into the two agreements, then he cannot rely
on the LOI with Cypress Equities to impose a contractual duty to disclose on
Cypress GR/Houston I, L.P.
8
establish the existence of a separate and inconsistent contractual duty. “[T]he mere
failure to perform a contract is not evidence of fraud.” Formosa Plastics Corp.
USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998).
Accordingly, the seller’s contractual disclosure obligations in this case were not
contained in the LOI, but instead were exclusively contained in the Purchase
Agreement itself.
When the parties did execute a formal and fully integrated Purchase
Agreement, they did not adopt the due diligence provisions of the LOI, but instead
agreed to a much more detailed “Inspection” provision, contained in Article V of
the Agreement. Thus the parties’ only agreement as it pertains to the seller’s
disclosure obligations is contained in the Purchase Agreement, and not in the LOI.
II. Enforceability of waiver of liability and disclaimer of reliance
Divorcing the terms of the LOI from the analysis and focusing solely upon
the terms of the Purchase Agreement, that contract waives any liability for
omissions from the seller’s communications to the buyer, and it includes a clear
and unequivocal expression of intent to disclaim the buyer’s reliance on the
completeness of the documentation provided to it by the seller. Article V of the
Purchase Agreement contains the parties’ agreement about the parameters of the
buyer’s opportunity to perform due diligence. Section 5.1 is entitled “Inspection
Period,” and it provides for a 30-day period, commencing on the “Effective Date,”
9
during which time the buyer was afforded reasonable opportunities to enter and
inspect the property. During the first 10 days of the Inspection Period, the seller
was required to deliver a group of “Documents” to the purchaser, as defined in
section 5.2, which is devoted to describing and limiting the seller’s disclosure
obligations.
To understand the flaw in the dissenters’ interpretation of section 5.2, it is
helpful to set out that provision in its entirety before examining the critical
component parts:
Section 5.2 Document Review.
(a) Documents. Within ten (10) days after the Effective
Date, Seller shall deliver to Purchaser the following, if in
the possession of Seller (collectively, the “Documents”):
(i) copies of the Lease and all amendments thereto;
(ii) the Survey;
(iii) copies of any Plans;
(iv) to the extent allowed by the author, copies of all
existing soil, engineering, architectural, and
environmental reports covering the Property in
Seller’s possession;
(v) copies of all Service Contracts, if any; and
(vi) copies of all Permits.
(b) Proprietary Information. Purchaser acknowledges that
any and all of the Documents are proprietary and
confidential in nature and will be delivered to Purchaser
10
solely to assist Purchaser in determining the feasibility of
purchasing the Property. Purchaser agrees not to disclose
the contents of the Documents to any party outside of
Purchaser’s organization except to its attorneys,
accountants, lenders, or investors (collectively, the
“Permitted Outside Parties”). Purchaser further agrees
that the Documents shall be disclosed and exhibited only
to those persons within Purchaser’s organization or to
those Permitted Outside Parties who are responsible for
determining the feasibility of Purchaser’s acquisition of
the Property and who have agreed in writing to preserve
the confidentiality of such information as required herein.
In permitting the Permitted Outside Parties to review the
Documents or other information to assist Purchaser,
Seller has not waived any privilege or claim of
confidentiality with respect thereto, and no third party
benefits or relationships of any kind, either express or
implied, have been offered, intended or created by Seller
and any such claims are expressly rejected by Seller and
waived by Purchaser and the Permitted Outside Parties,
for whom, by its execution of this Agreement, Purchaser
is acting as an agent with regard to such waiver.
(c) Return of Documents. Purchaser shall return all of the
Documents, any and all copies Purchaser has made of the
Documents, and all copies of any studies, reports, or test
results obtained by Purchaser in connection with its
inspection of the Property (collectively, the “Purchaser’s
Information”) within five (5) business days following
such time as this Agreement is terminated for any reason.
This provision shall survive the termination of this
Agreement.
(d) No Representation or Warranty by Seller. Purchaser
hereby acknowledges that, except as otherwise
specifically set forth in this Agreement, Seller has not
made and does not make any warranty or representation
regarding the truth, accuracy, or completeness of the
Documents or the source(s) thereof, and that Seller has
not undertaken any independent investigation as to the
11
truth, accuracy, or completeness of the Documents and is
providing the Documents solely as an accommodation to
Purchaser. Except with respect to any express warranties
made in this Agreement, Seller expressly disclaims and,
Purchaser waives any and all liability for representations
or warranties, express or implied, statements of fact, and
other matters contained in the Documents, or for any
omissions from the Documents, or in any other written or
oral communications transmitted or made available to
Purchaser. Except with respect to any express warranties
made in this Agreement, Purchaser shall rely solely upon
its own investigation with respect to the Property,
including, without limitation, the Property’s physical,
environmental, or economic condition, compliance or
lack of compliance with any ordinance, order, permit, or
regulation or any other attribute or matter relating
thereto.
The “Documents” to be disclosed pursuant to section 5.2(a) were “copies of
the Lease and all amendments thereto,” “the Survey,” “copies of any Plans,” “to
the extent allowed by the author, copies of all existing soil, engineering,
architectural, and environmental reports covering the Property in Seller’s
possession,” “copies of all Service Contracts, if any,” and “copies of all Permits.” 7
Section 5.2(b) and (c) included provisions for the treatment of proprietary
7
The inclusion of the lease and all service contracts as part of the
“Documents” demonstrates that the category was not limited to items
“which dealt with the condition of the Property,” nor do the “Documents”
entirely exclude items relating to “the economics of the purchase
transaction.”
12
information within the “Documents” and for the return of all “Documents” in the
event the Purchase Agreement was terminated.
A. Disclaimer and waiver of liability for omissions
Importantly, section 5.2(d) is entitled “No Representation or Warranty by
Seller.” In it, the buyer acknowledged:
. . . [E]xcept as otherwise specifically set forth in this
Agreement, Seller has not made and does not make any
warranty or representation regarding the truth, accuracy,
or completeness of, the Documents or the source(s)
thereof, and that Seller has not undertaken any
independent investigation as to the truth, accuracy, or
completeness of the Documents and is providing the
Documents solely as an accommodation to Purchaser. . . .
The foregoing language did not affirmatively authorize the seller to misrepresent
the truth or to knowingly conceal information, but it could reflect the parties’
intention to limit the scope of the seller’s obligations to search for and investigate
the “Documents” to be provided by the seller. More critically, the following
sentence provided:
. . . Except with respect to any express warranties made
in this Agreement, Seller expressly disclaims and
Purchaser waives any and all liability for representations
or warranties, express or implied, statements of fact, and
other matters contained in the Documents, or for any
omissions from the Documents, or in any other written or
oral communications transmitted or made available to
Purchaser. . . .
13
This sentence expressly addressed the seller’s “liability” in connection with
providing the “Documents.” It clearly and unequivocally provided that the seller
“expressly disclaims”—and that the buyer “waives”—“any and all liability” for
effectively everything “contained in the Documents.” 8 And beyond the
information affirmatively provided by disclosing the “Documents,” the express
disclaimer and waiver of liability also extended to “any omissions” from
information that was provided, regardless of whether it should have been disclosed
as part of the “Documents.” That same seller’s disclaimer of liability and buyer’s
waiver of liability extended to “any omissions . . . in any other written or oral
communications transmitted or made available to Purchaser.”
Plain English and its rules of grammar confirm that this disclaimer and
waiver of liability extended to omissions from the seller’s communications to the
buyer. 9 The phrase “in any other written or oral communications transmitted or
8
As phrased in the Purchase Agreement, the matters “contained in the
Documents” for which the “Seller expressly disclaims and the buyer waives
any and all liability” are described as: (a) “representations or warranties,
express or implied,” (b) “statements of fact,” and (c) “other matters
contained” therein.
9
See, e.g., Gen. Fin. Servs., Inc. v. Practice Place, Inc., 897 S.W.2d 516, 522
(Tex. App.—Fort Worth 1995, no writ) (“Courts are required to follow
elemental rules of grammar for a reasonable application of the legal rules of
construction.”); Porter v. Milner, 352 S.W.2d 787, 789 (Tex. Civ. App.—
Fort Worth 1961, no writ) (“Rules of grammar underlie all legal rules
applicable in the construction of contracts.”).
14
made available to Purchaser” properly can be read only as a modification of
“omissions.” The only other conceivable function of that phrase in the sentence
would be to modify the reference to “liability,” but that reading would require the
implausible assumption that the contract was drafted to disclaim and waive
“liability . . . in any other written or oral communications transmitted or made
available to Purchaser.” (Emphasis supplied.) One does not ordinarily speak of
liability “in” a matter, but of liability “for” something. The natural and correct
reading of the contract language is that liability is disclaimed and waived “for any
omissions . . . in any other written or oral communications transmitted or made
available to Purchaser.” (Emphasis supplied.) Section 5.2(d)’s reference to
“omissions” thus cannot be read, as the dissenters read it, see Dissent at 24–25, as
if it were limited to “omissions from the Documents” and did not also embrace
“omissions . . . in any other written or oral communications transmitted or made
available to Purchaser.”
Tellingly, the dissenters have failed to respond to the merits of this
grammatical analysis, nor have they offered any other interpretation of the
disclaimer as it relates to “omissions . . . in any other written or oral
communications transmitted or made available to Purchaser.”
15
B. Buyer’s sole reliance on his own investigation and purchase of
property “as is”
Consistent with the aforementioned provisions immunizing the seller from
liability for errors or omissions in communications to the buyer, section 5.2(d)
concluded by affirming that the buyer was accepting responsibility for developing
the information necessary to satisfy itself about the property it was buying:
Except with respect to any express warranties made in
this Agreement, Purchaser shall rely solely upon its own
investigation with respect to the Property, including,
without limitation, the Property’s physical,
environmental, or economic condition, compliance or
lack of compliance with any ordinance, order, permit, or
regulation or any other attribute or matter relating
thereto.
The buyer’s specific affirmation that it was relying solely upon its own
investigation, and the parties’ deliberate intent to foreclose liability for both the
seller’s affirmative communications to the buyer and omissions therefrom, are
further confirmed by the Purchase Agreement’s inclusion of an “as-is” provision in
section 5.5, which provided, in relevant part:
Property Conveyed “AS IS”.
(a) EXCEPT AS OTHERWISE PROVIDED HEREIN
OR IN THE DEED . . . (2) PURCHASER
HEREBY EXPRESSLY ACKNOWLEDGES
AND AGREES THAT (A) PURCHASER HAS
OR WILL HAVE, PRIOR TO THE END OF THE
INSPECTION PERIOD, THOROUGHLY
INSPECTED AND EXAMINED THE
PROPERTY TO THE EXTENT DEEMED
16
NECESSARY BY PURCHASER IN ORDER TO
ENABLE PURCHASER TO EVALUATE THE
PURCHASE OF THE PROPERTY AND
(B) PURCHASER IS RELYING SOLELY UPON
SUCH INSPECTIONS, EXAMINATIONS, AND
EVALUATION OF THE PROPERTY BY
PURCHASER IN PURCHASING THE
PROPERTY ON AN “AS IS”, “WHERE IS” AND
“WITH ALL FAULTS” BASIS, WITHOUT
REPRESENTATIONS, WARRANTIES OR
COVENANTS, EXPRESS OR IMPLIED, OF
ANY KIND OR NATURE.
....
Fazio’s willingness to execute the Purchase Agreement, with its disclaimers,
cannot be explained by his supposed expectation that the seller had provided
“every scrap of paper” in its possession relating to the property. Dissent at 17.
Such an expectation would not be reasonable under the terms of the fully
integrated Purchase Agreement. A far more plausible inference would be that if a
buyer were in fact relying upon a belief that the seller had disclosed “every scrap
of paper” to him, such a buyer would not have agreed to a provision stating that it
“shall rely solely upon its own investigation with respect to the Property,
including, without limitation, the Property’s . . . economic condition.” A
sophisticated real-estate purchaser could be expected to memorialize such an
understanding in section 8.2 of the Purchase Agreement, which contained “Seller’s
Representations and Warranties.” Fazio didn’t.
17
C. Application of Schlumberger, Forest Oil, and Italian Cowboy
Contrary to the dissenters’ view, the Texas Supreme Court’s recent Italian
Cowboy opinion did not address circumstances “similar” to those in this case.
Dissent at 14. The language relied upon in Italian Cowboy as a purported
disclaimer of reliance provided: “Tenant acknowledges that neither Landlord nor
Landlord’s agents, employees, or contractors have made any representations or
promises with respect to the Site, the Shopping Center or this Lease except as
expressly set forth herein.” Italian Cowboy Partners, Ltd. v. Prudential Ins. Co.,
341 S.W.3d 323, 328 (Tex. 2011). The Court compared this language to the
provisions found to be effective disclaimers of reliance in Schlumberger 10 and
10
The Italian Cowboy opinion quoted and relied upon the following language
from the settlement agreement at issue in Schlumberger Tech. Corp. v.
Swanson, 959 S.W.2d 171 (Tex. 1997):
[E]ach of us . . . expressly warrants and represents . . . that no
promise or agreement which is not herein expressed has been
made to him or her in executing this release, and that none of us
is relying upon any statement or representation of any agent of
the parties being released hereby. Each of us is relying on his
or her own judgment . . . .
Italian Cowboy, 341 S.W.3d at 336 (quoting Schlumberger, 959 S.W.2d at
180 (emphasis added in Italian Cowboy)).
18
Forest Oil, 11 and concluded that the lease language at issue in the case did not
include clear and unequivocal language expressly disclaiming reliance on
representations and affirming reliance on one’s own judgment. See id. at 336.
Instead, the Italian Cowboy Court found the language at issue to indicate “nothing
more than the provisions of a standard merger clause,” which is not sufficient to
indicate an intent to disclaim reliance. Id. at 334. In other words, it is a
misunderstanding of Italian Cowboy to suggest that the Supreme Court allowed a
claim of fraudulent inducement to proceed despite a disclaimer of reliance. See
Dissent at 15–16. The critical distinguishing factor in Italian Cowboy was the
absence of a disclaimer of reliance.
This case is distinguishable from Italian Cowboy in at least two respects.
The Purchase Agreement uses the term “rely” in providing that the “Purchaser
11
The opinion quoted and relied upon the following language from the
settlement agreement at issue in Forest Oil Corp. v. McAllen, 268 S.W.3d 51
(Tex. 2008):
[We] expressly represent and warrant . . . that no promise or
agreement which is not herein expressed has been made to them
in executing the releases contained in this Agreement, and that
they are not relying upon any statement or representation of any
of the parties being released hereby. [We] are relying upon
[our] own judgment . . . .
Italian Cowboy, 341 S.W.3d at 336 (quoting Forest Oil, 268 S.W.3d at 54
(emphasis added in Italian Cowboy)).
19
shall rely solely upon its own investigation with respect to the Property.”
(Emphasis supplied.) “Rely” is also used in the “as-is” clause, in which the buyer
affirmed it was “RELYING SOLELY UPON SUCH INSPECTIONS,
EXAMINATIONS, AND EVALUATION OF THE PROPERTY” as it deemed
necessary to enable its evaluation of the transaction. 12 This factor was expressly
noted in Italian Cowboy to distinguish that case from Schlumberger and Forest
Oil, both of which featured contracts using the term “rely” to clearly and
unequivocally indicate a party’s intent to rely on its own judgment. See Italian
Cowboy, 341 S.W.3d at 336. Second, the key language at issue cannot be
characterized as merely echoing the intent and purpose of a merger clause. Rather,
the language specifically references “liability” arising from representations or
omissions from documents or other written or oral communications, and it clearly
12
The presence of the “as-is” clause also precludes the buyer from asserting
that he was fraudulently induced to enter into the transaction by the seller’s
breach of a common-law duty to disclose information about the property.
This clause affirmed the buyer’s opportunity to fully inspect to the extent he
deemed necessary, as well his sole reliance upon his own inspections. Such
affirmations and agreements between sophisticated parties of relatively
equal bargaining position should be given effect. See Prudential Ins. Co. v.
Jefferson Assocs., Ltd., 896 S.W.2d 156, 162 (Tex. 1995).
20
and unequivocally provides that the seller disclaims and that the buyer waives “any
and all” liability of that nature.13
The buyer-plaintiffs’ claims in this case arise from their allegation that the
seller-defendants failed to disclose information about economic risks to the
property owner, i.e., the financial condition of the property’s tenant and the
tenant’s requests for rent relief, facts which affected the value of the income stream
expected from renting the property to that tenant. The dissenters studiously ignore
the Purchase Agreement’s specific reference to the Property’s “economic
condition” as one of the aspects of the transaction for which the buyer was relying
“solely upon its own investigation.” I would hold that the Purchase Agreement’s
express disclaimer and waiver of seller liability arising from representations or
omissions in the parties’ communications leading up to the closing of the
transaction, combined with the acknowledgement that “Purchaser shall rely solely
upon its own investigation with respect to the Property, including, without
13
The seller’s “one-sided knowledge of past facts” as referenced in Italian
Cowboy and by the dissenters, see Dissent at 14, had nothing to do with why
that case was distinguishable from Schlumberger and Forest Oil. Italian
Cowboy thus does not support a conclusion in this case that “Cypress’s
superior knowledge of past facts . . . made Cypress’s suppression of
information . . . actionable under the circumstances.” Dissent at 17–18.
That conclusion can only be reached by disregarding the legal effect of a
disclaimer of reliance by a sophisticated purchaser in a commercial real
estate transaction.
21
limitation, the Property’s . . . economic condition,” constitutes clear, specific, and
unequivocal disclaimer of reliance sufficient to preclude this subsequent claim of
fraudulent inducement. See Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 61 (Tex.
2008); Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 179 (Tex. 1997).
D. Enforceability of disclaimer
The question remains, however, whether the disclaimer is binding in light of
the totality of circumstances surrounding this contract. See Forest Oil, 268 S.W.3d
at 61; Schlumberger, 959 S.W.2d at 179. This is a legal question which we review
de novo. Forest Oil, 268 S.W.3d at 55. The factors that guided the Supreme
Court’s reasoning in Schlumberger and Forest Oil included:
(1) the terms of the contract were negotiated, rather than
boilerplate, and during negotiations the parties
specifically discussed the issue which has become the
topic of the subsequent dispute; (2) the complaining party
was represented by counsel; (3) the parties dealt with
each other in an arm’s length transaction; (4) the parties
were knowledgeable in business matters; and (5) the
release language was clear.
Id. at 60. The Fazios do not dispute that this was an arm’s-length transaction. As
explained above, the language disclaiming reliance and waiving liability based
upon seller representations was clear.
The other aspects of this transaction also support enforcing the agreement as
written. Fazio is an experienced and sophisticated real estate investor. This was a
$7,667,000 commercial transaction. The agreement was not presented to Fazio as
22
non-negotiable boilerplate—in fact, he requested changes, including a change to
delete any reference to him having the agreement reviewed by legal counsel. He
similarly could have requested deletion of all or part of section 5.2(d) and 5.5. 14
Moreover, Fazio’s request to remove a reference to his use of counsel
demonstrated not only that he had the opportunity to review and negotiate the
language of the contract, but also that his choice to forego the assistance of counsel
was deliberate. It is undisputed that Fazio had ample resources to consult counsel.
He routinely employed the professional assistance of real estate brokers, but he
chose not to employ the professional assistance of legal counsel. Under such
circumstances, he assumed the risk of proceeding without counsel, and his choice
in that regard should not excuse him from being bound to the terms of his contract.
Unlike Schlumberger and Forest Oil, both of which involved settlement
agreements, a final resolution of all disputes among the parties is not a factor
informing the overall circumstances of this real estate transaction. And the record
does not reflect specific negotiations about the provision at issue. Nevertheless, I
would hold that, on balance, these factors are outweighed by the clear language of
14
See Prudential Ins., 896 S.W.2d at 161 (noting that instead of agreeing to
buy property “as is,” a buyer “could insist instead that the seller assume part
or all of that risk by obtaining warranties to the desired effect,” and further
noting that “[i]f the seller is willing to give such assurances, however, he
will ordinarily insist upon additional compensation”).
23
the contract, the arm’s-length nature of the transaction, the experience and
sophistication of the parties, the magnitude of the transaction, and the complaining
party’s deliberate choice to forego the assistance of legal counsel despite manifest
opportunity and ability to have the assistance of an attorney.
Accordingly, as a separate and independent ground for affirming the trial
court’s rendition of judgment notwithstanding the verdict, I would hold that the
buyers disclaimed reliance on the completeness of seller’s disclosures and
affirmatively waived any subsequent claim of fraudulent inducement to enter into
the transaction.
Michael Massengale
Justice
Justice Bland, joined by Chief Justice Radack, and by Justices Massengale, Brown,
and Huddle, for the en banc court.
Justice Massengale, concurring.
Justice Keyes, joined by Justices Jennings, Higley, and Sharp, dissenting.
Justice Jennings, joined by Justices Keyes, Higley, and Sharp, dissenting from
granting of en banc reconsideration.
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