Full opinion text
OPINION ON REHEARING HARVEY BROWN, Justice. In this securities action, Robert Allen appeals from the trial court’s summary judgment in favor of Devon Energy Holdings, L.L.C. formerly known as Chief Holdings, L.L.C. (Chief) and its manager and majority owner, Trevor Rees-Jones. Introduction Two years after Allen redeemed his minority interest in Chief, Chief sold for almost twenty times the value used to calculation the redemption price. Alleging that Rees-Jones fraudulently induced him to redeem his shares, Allen sued Chief and Rees-Jones for violation of the Texas Securities Act (TSA), statutory and common law fraud, breach of fiduciary duty, and shareholder oppression. Allen asserts that Rees-Jones induced him to sell his ownership interest in Chief by making representations in a November 2003 letter and failing to disclose material changes that rendered those representations untrue or misleading in the intervening eight months between the date of the letter and his June 2004 redemption. He primarily claims that Rees-Jones withheld information concerning technological advances in horizontal drilling and Chiefs significant lease acquisitions in an expanded area of an existing natural gas field, the Barnett Shale, both of which occurred after the redemption offer but before the redemption. Allen asserts that these undisclosed facts directly impacted Chiefs future business prospects and would have caused him to reject Chiefs redemption offer. Rees-Jones and Chief contend that, cognizant of the fast-changing nature of Chiefs uncertain oil and gas investments, the parties contractually allocated to Allen the risk for any changes in Chiefs value for the months between the redemption offer and the sale. They assert that, when Allen cashed in his modest investment in Chief for a lottery-size windfall of over $8 million, he voluntarily assumed all responsibility for investigating and evaluating his decision to redeem his shares — therefore he cannot claim now that he based his decision on Rees-Jones’s analysis rather than his own. They further maintain that Rees-Jones’s statements constituted opinion statements, which are not actionable in fraud, and that Allen’s damages model is an impermissibly speculative attempt to recover the maximum payoff on a gamble Allen declined to take. They moved for summary judgment on these grounds, which the trial court granted. Allen appealed. With respect to Allen’s fraud claims, we hold that several, but not all, of the statements in Rees-Jones’s November 2003 letter are actionable and that the redemption agreement does not bar Allen’s fraud claims based on those statements. We decline to recognize a shareholder oppression claim but hold that Rees-Jones did not negate fiduciary duty claim. We hold that Chief conclusively established that Allen had certain knowledge that bars his TSA, common law, and statutory fraud claims based on misrepresentation of the value of Chief or its assets at the time of the redemption or the appropriateness of the redemption price, but Chief did not otherwise disprove justified reliance or establish its “knowledge” defense under the TSA. Nor did Chief prove that Allen’s TSA claims are barred by limitations or that Allen has no recoverable damages. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. Factual Background Allen and Rees-Jones became acquainted as partners at a law firm. Two years after they met, Rees-Jones left the firm to be an entrepreneur in the oil and gas industry. Ten years later, Rees-Jones solicited Allen to invest in a new oil and gas company, which eventually became Chief. Allen became an 8% equity owner in return for investing $700 and pledging a $34,300 certificate of deposit as collateral for a line of credit. Rees-Jones invested $6,000 and his “sweat equity” as the sole manager in return for a 60% ownership interest. Chief experienced phenomenal growth, due largely to its success in the Barnett Shale. By July 2001, Chiefs fair market value had grown to an estimated $8.5 million. Chief offered a partial buyout of its members to facilitate an ownership incentive plan for two key employees. Allen accepted the offer, reducing his interest to 7.2%. Chief continued to have success, and its value continued to increase. By Fall 2003, Chief was preparing to shift its resources toward production in the “expansion” area of the Barnett Shale, where prospects were less certain than they had been in the “core” area. Rees-Jones decided to offer to redeem the other investors’ remaining interests. Chief hired Haas Petroleum Engineering Services to perform an appraisal of Chiefs oil and gas reserves, and it hired Phalon George Capital Advisors to assess Chiefs market value based on the Haas reserve report. The Phalon report estimated Chiefs net asset value at $138.3 million, after subtracting liabilities, and the minority members’ interests at approximately $1.13 million per 1% interest after discounts for the sale of a minority interest and for lack of marketability. In November 2003, Rees-Jones sent Chiefs members a letter regarding his intent to make a redemption offer and attaching the Haas and Phalon reports. The letter contained Rees-Jones’s pessimistic assessment of a number of facts and events that could negatively impact Chiefs value in the future, including its shift from proven production in the Barnett Shale’s core area to less-certain production in the expansion area. Rees-Jones also stated that Chiefs first horizontal well appeared to be a dry hole drilled at a cost of $1.4 million, the approximately dozen wells drilled by other companies in the expansion area “would show to be non-economic,” and “further technological advancement needs to be made in order for the Barnett Shale in the ‘expansion’ area to become economic.” The closing was delayed until June 2004. According to Allen, a number of events occurred in the eight months between Rees-Jones’s November 2003 letter and the June 2004 closing that rendered some of Rees-Jones’s statements in the letter misleading or no longer true. Among these events were: reports of successes in the development of horizontal drilling — a technology perceived as vital to profitable development of the expansion area of the Barnett Shale; considerable acquisitions by Chief and its competitors in the expansion area; optimistic statements by industry insiders about the expansion area’s potential profitability; and an estimated increase in Chiefs value. In his affidavit, Allen asserts that he asked Rees-Jones whether the valuations needed to be updated and Rees-Jones responded that it “was not necessary.” Chief did not update the Haas or Phalon report after the initial redemption offer. Instead, Chief based the redemption price on the Haas and Phalon reports and included in the redemption agreement an “Independent Investigation” clause under which the seller recognized that the reports were not up-to-date and might not accurately reflect Chiefs current value. The redemption agreement also contained a “Mutual Releases” clause and a general merger clause. Three of Chiefs owners decided to redeem their interests; four owners retained their interests. Allen was among the sellers; Rees-Jones was among the remaining owners. Allen redeemed his interest in Chief for approximately $8.2 million. Approximately one and a half years after the redemption, Chiefs management put Chief on the market. Six months later, Devon purchased Chief for $2.6 billion — nearly twenty times the value used to determine the redemption price. Rees-Jones told Allen after the 2006 sale that “the change in value was attributable to the advent of horizontal drilling,” that horizontal drilling was the key that “unlocked” the expansion area, and that horizontal drilling had made the expansion area “worth more than he ever conceived.” Allen denied knowledge of the advancements in horizontal drilling or the extent of Chiefs post-November 2003 leasehold acquisitions. Allen sued Chief and Rees-Jones. After some limited discovery, Chief and Rees-Jones moved for traditional summary judgment, which the trial court granted. Standard of Review We review a trial court’s summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex.2010). Under the standard for traditional summary judgment, the movant has the burden to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). A defendant moving for traditional summary judgment must negate at least one essential element of each of the plaintiffs causes of action or conclusively establish each element of an affirmative defense. Sci Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). Release Chief sought summary judgment on the affirmative defense of “release,” based on the provisions of the redemption agreement. The redemption agreement contains mutual releases under which Allen and Chief “fully and finally and forever settle, release and discharge each other” from “any and all claims, demands, rights, liabilities and causes of action of any kind or nature” relating to the redemption agreement, excluding breach of contract claims. Additionally, under the “Independent Investigation” clause, they released each other from “any claims that might arise as a result of any determination that the value of [Allen’s] Interest at the [redemption] Closing was more or less than the Redemption Price.” Allen does not deny that these releases bar all of his claims against Chief if they are enforceable. Instead, he asserts that (1) the releases are not enforceable because the redemption agreement was fraudulently induced and (2) even if otherwise enforceable, the releases are void with respect to Allen’s TSA claims. A. Enforceability of the releases in the redemption agreement “[F]raud vitiates whatever it touches[.]” Estate of Stonecipher v. Estate of Butts, 591 S.W.2d 806, 809 (Tex.1979). Thus, a contractual release may be avoided by proof that it was fraudulently induced, and the parol evidence rule does not bar evidence of such fraud. Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 331 (Tex.2011); see also Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 178 (Tex.1997). Though a valid fraudulent inducement claim generally precludes parties from relying on a contract’s terms, including its releases, the contract itself may preclude a valid fraudulent inducement claim if it (1) “clearly expresses the parties’ intent to waive fraudulent inducement claims” or (2) “disclaims reliance on representations about specific matters in dispute.” Schlumberger, 959 S.W.2d at 181; see also Italian Cowboy, 341 S.W.3d at 332; Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 61 (Tex.2008). Allen’s redemption agreement does not waive fraudulent inducement claims specifically, and the general release of all claims arising out of the redemption agreement does not amount to a “clear[ ] expression of] the parties’ intent to waive fraudulent inducement claims.” Schlumberger, 959 S.W.2d at 181. Otherwise, all general releases would be immune to fraud. Cf. Residencial Santa Rita, Inc. v. Colonia Santa Rita, Inc., No. 04-06-00778-CV, 2007 WL 2608564, at *3 (Tex.App.-San Antonio 2007, no pet.) (mem. op.) (reversing summary judgment on contractual release when plaintiff raised fact issue on fraudulent inducement); Fletcher v. Edluards, 26 S.W.3d 66, 75-77 (Tex.App.Waco 2000, pet. denied) (reversing summary judgment on contractual release and “as is” clause when plaintiff raised issue of fact on fraudulent inducement); Dunbar Med. Sys. Inc. v. Gammex Inc., 216 F.3d 441 (5th Cir.2000) (applying Schlumberger to hold that release containing “as is” and “merger” clauses could be avoided on basis of fraudulent inducement). Chief contends, however, that the redemption agreement’s “Independent Investigation” and “Finality” clauses, taken together, “disclaim! ] reliance on representations about specific matters in dispute.” Schlumberger, 959 S.W.2d at 181. We address this argument, along with Chiefs other arguments for defeating the reliance element of Allen’s fraud claims, in the “Fraud” section below. Because we hold below that Chief has not conclusively defeated Allen’s fraudulent inducement claims as a matter of law, Chief has necessarily failed to establish conclusively the enforceability of the redemption agreement’s releases. B. Enforceability of the releases under the TSA Because Chief has not conclusively established an enforceable release, the trial court erred to the extent it granted summary on the basis of Chiefs affirmative defense of “release.” Because we reverse the trial court’s summary judgment on this ground, we need not reach the issue of whether section 33L of the TSA would also require reversal as to Allen’s TSA claims. See Tex.Rev.Civ. Stat. Ann. art. 581-33L (West 2010) (prohibiting waiver of compliance with TSA provisions). Fraud Allen’s fraud claims against Chief include common law fraud and statutory fraud under the TSA and the Business and Commerce Code. Chief moved for summary judgment, on the grounds that two elements of these claims fail as a matter of law: (1) the existence of an actionable statement and (2) reliance. A. Actionable v. non-actionable statements The first element of a fraud claim is that there is a statement concerning a material fact. Transp. Ins. Co. v. Faircloth, 898 S.W.2d 269, 276 (Tex.1995); Trenholm v. Ratcliff, 646 S.W.2d 927, 930 (Tex.1983). A pure expression of opinion is not a representation of material fact and thus is not an actionable basis for a fraud claim. Italian Cowboy, 341 S.W.3d at 337-38; Faircloth, 898 S.W.2d at 276. “Whether a statement is an actionable statement of ‘fact’ or merely one of ‘opinion’ often depends on the circumstances in which a statement is made.” Italian Cowboy, 341 S.W.3d at 338 (quoting Faircloth, 898 S.W.2d at 276). Courts consider circumstances like the statement’s specificity, the speaker’s knowledge, the comparative levels of the speaker’s and hearer’s knowledge, and whether the statement relates to the present or future. Faircloth, 898 S.W.2d at 276. There are exceptions to the general rule that opinions are not actionable in fraud. Statements of opinion may be actionable when (1) the speaker expresses the opinion with knowledge that it is false, (2) the speaker has superior knowledge and should have known that the other party was justifiably relying on the speaker’s superior knowledge, or (3) the statement of opinion is so intertwined with other misstatements of fact that the representation as a whole amounts to a false representation of fact. Id. at 276-77. Statements regarding future events generally fall into two categories: predictions and promises to perform. Because the future is generally unascertainable, these statements are typically non-actionable in fraud. See, e.g., Trenholm, 646 S.W.2d at 930. There are exceptions to this rule as well. Predictions are actionable if the speaker purports to have special knowledge of facts that will occur or exist in the future. Trenholm, 646 S.W.2d at 930; cf. Anglo-Dutch Petroleum Int’l, Inc. v. Shore Harbour Capital Mgmt. Corp., No. 01-09-00417-CV, 2011 WL 862117, at *5 (Tex.App.-Houston [1st Dist.] Mar. 10, 2011, no pet.) (mem. op.) (holding that company president lacked specialized knowledge necessary to render prediction actionable). Statements promising future performance are actionable in fraud if the speaker has no intention of performing when he makes the statement. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, 960 S.W.2d 41, 48 (Tex.1998). An actionable statement is necessary to all of Allen’s fraud claims. See Faircloth, 898 S.W.2d at 276 (common law fraud); Jericho Graphics Corp. v. Haynes, No. 01-03-00987-CV, 2004 WL 2538677, at *3 (Tex.App.-Houston [1st Dist.] Nov. 10, 2004, no pet.) (mem. op.) (fraud under section 27.01); Tex. Capital Sec., Inc. v. Sandefer, 58 S.W.3d 760, 776 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (TSA); Paull v. Capital Res. Mgmt., 987 S.W.2d 214, 218-19 (Tex.App.-Austin 1999, writ denied) (TSA). Likewise, when a fraud by non-disclosure claim is founded upon a statement by the defendant, the statement must be actionable; a non-actionable statement of opinion will not support a fraudulent non-disclosure claim. See Oliver v. Rogers, 976 S.W.2d 792, 803-04 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) (affirming summary judgment on claim that defendants had duty to disclose alleged intent not to perform arising after transaction closed, because promise of future performance is actionable only if there was no intent to perform at time of contracting); Stephanz v. Laird, 846 S.W.2d 895, 904 (Tex.App.-Houston [1st Dist.] 1993, writ denied) (rejecting claim for failure to disclose information inconsistent with representation that, even if made, “would merely be opinion, in which case there would be no actionable fraud”); Walton Pond Joint Venture v. Hiawatha Sav. & Loan Ass’n, No. 01-88-00719-CV, 1990 WL 19083, at *9 (Tex.App.-Houston [1st Dist.] Mar. 1, 1990, writ denied) (not designated for publication) (“failure to disclose another development in the vicinity is not actionable as fraud here, because the only evidence on whether that project would indeed compete for the same market or was more easily marketed than the Walton Pond project was also a matter of opinion and speculation”); cf. Citizens Nat’l Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 478 (Tex.App.-Fort Worth 2004, no pet.) (holding that statements regarding frustration and loss of enthusiasm for franchisor were statements of fact, rather than opinion, and supported fraud by non-disclosure claim). 1. Actionable statements alleged by Allen Allen asserts that eight statements in Rees-Jones’s November 2003 letter are actionable, either because they are statements of fact or because they are statements of opinion that fall within exceptions to the general rule that statements of opinion are not actionable in fraud. a. Statements of fact Allen contends that the following three statements from Rees-Jones’s November 2003 letter are statements of fact, rather than opinion, and are therefore actionable. We address each statement in turn. • “Chief now has approximately $400,000 per month of overhead, so making a profit of $5 million per year simply brings us to break even.” Allen contends that this is a statement of fact, and we agree. Chiefs monthly overhead on the date of Rees-Jones’s letter is a readily ascertainable fact. We therefore hold that the trial court could not properly have granted summary judgment with respect to this statement on the ground that it is not actionable. • “You should be aware that Chiefs relationship with Mr. Bob Millard ... has recently become very strained. Conflicts of a substantial nature have developed that may result in protracted litigation that will be very expensive, with the outcome unknown at this time.” Allen contends that this is a statement of fact. Chief contends that it is a non-actionable statement of opinion. We hold that it is a mixed statement of fact and opinion: whether a strain in Chiefs relationship with Mr. Millard actually existed is factual in nature, while Rees-Jones’s assessment of the strain’s severity and the risk of potential litigation are in the nature of an opinion. We therefore hold that Rees-Jones’s representation as to the existence of a strain in Chiefs relationship with Millard was actionable, and the trial court could not have properly granted summary judgment with respect to this representation on that basis. Rees-Jones’s representation as to the severity of the conflict and potential future litigation are non-actionable, and the trial court correctly granted summary judgment with respect to those representations on that basis. • “Our first horizontal ‘stepout’ well ... appears at this stage of completion to be a dry hole.... With respect to the ‘expansion’’ area, the' approximately dozen Barnett Shale wells on production ... would show to be non-economic, indicating that further technological advancement needs to be made in order for the Barnett Shale in the ‘expansion area’ to become economic.” Allen contends that Rees-Jones’s statements regarding Chiefs dry hole, other companies’ non-economic wells, and the need for technological advancement are statements of fact, and are therefore actionable. Chief contends that these statements constitute non-actionable predictions. Focusing on the phrase “would show,” Chief argues that the “conditional verb tense is future-oriented — in other words, a prediction.” Chief further argues that fraud “rarely can be based on a prediction.” Citing Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd., Chief asserts that oilfield projections for new fields — as opposed to mature fields with a meaningful production track record — are inherently non-actionable opinion. 249 S.W.3d 380, 385-86 (Tex.2008). As Chief says, “Everybody knows that nobody knows future mineral prospects with any certainty” and therefore statements about future prospects of an unproven oilfield are not actionable “no matter how superior the knowledge of the speaker or how specific the predictions.” Allen’s complaint, however, centers not on any alleged misrepresentation or nondisclosure relating to the reserves in the expansion area. Instead, Allen complains that Rees-Jones’s pessimistic predictions about Chiefs future prospects in the expansion area were largely predicated on two represented facts: the lack of success drilling in the expansion area and the absence of certain drilling technology essential to profitable production in the expansion area. According to Allen, those facts changed, Rees-Jones knew those facts changed, and Rees-Jones did not disclose the change to Allen. Rees-Jones’s representation that the drilling technology necessary to successful production in the expansion area of the Barnett Shale did not exist is a statement of fact. Thus, even if we were to assume that Rees-Jones’s statement that the wells in the expansion area of the Barnett Shale “would show to be non-economic” is a prediction, it is one that is “based on or buttressed with” his factual representation regarding the state of drilling technology and Chiefs and other companies’ experience on approximately a dozen expansion-area wells. See Faircloth, 898 S.W.2d at 276 (observing that opinion is actionable when based on or buttressed with false facts); see also Trenholm, 646 S.W.2d at 930 (“when an opinion is based on past or present facts, an action for fraud may be maintained”). We therefore hold that the trial court could not properly have granted summary judgment with respect to this statement on the ground that it is not actionable. b. Statements of opinion Allen concedes that the following five statements are statements of opinion but contends that Chief has not established as a matter of law that they are non-actionable opinions. Specifically, Allen contends that Chief failed to prove conclusively that Rees-Jones (1) did not have superior knowledge or (2) actually held the stated belief or intent at the time he made the statement. We address each statement in turn. • “You should be aware that Chief will be taking a lot more risk moving forward from here.... I do not expect ‘step-out’ or ‘expansion area’ wells to carry anywhere near the value of the ‘core area’ wells, and the end result of this drilling could be a decline in the value of our company.” Allen contends that this opinion is actionable because (1) Chief has not conclusively proved that “Rees-Jones actually believed the expansion area posed any significant risk” and (2) Rees-Jones bolstered his opinion on this issue with factual statements about Chiefs first expansion well and other developers’ non-economic expansion-area wells. We agree that this statement is related to, and intertwined with, Rees-Jones’s representations regarding the state of drilling technology and Chiefs and other companies’ expansion-area endeavors. See Trenholm, 646 S.W.2d at 931 (holding that representations of present facts were so intertwined with future prediction that whole statement amounted to factual representation). According to Allen, these interrelated representations, taken as a whole, amounted to a factual representation about the state of drilling technology and its effect on the profitability of drilling in the expansion area which, by the time of the June 2004 closing, was no longer accurate. Chief has not conclusively disproven these allegations. We therefore hold that the trial court could not properly have granted summary judgment with respect to this statement on the ground that it is not actionable. • “I intend to work over the next ten years at a much more relaxed pace, perhaps taking a good bit of time off.” Allen contends that “[w]hether Rees-Jones really intended to slow down and take time off’ is a matter of fact. Chief asserts that this is a statement of Rees-Jones’s intent, and statements of intent to act or refrain from some act in the future are not actionable. See Stone v. Enstam, 541 S.W.2d 473, 480-81 (Tex.Civ.App.-Dallas 1976, no writ). But statements of intent are actionable if the speaker does not in fact have such an intent at the time. See Formosa Plastics, 960 S.W.2d at 48; Beverick v. Koch Power, Inc., 186 S.W.3d 145, 153 (Tex.App.-Houston [1st Dist.] 2005, pet. denied); Stone, 541 S.W.2d at 480-81. Chief, having the burden of proof, failed to offer evidence that Rees-Jones actually intended to work less in the coming years when he wrote this letter. See Sci. Spectrum, Inc., 941 S.W.2d at 911. We therefore hold that the trial court could not properly have granted summary judgment with respect to this statement on the ground that it is not actionable. • “I don’t expect our growth to continue at this pace, which has been nothing short of phenomenal.” Allen contends that “[wjhether Rees-Jones truly expected Chiefs growth rate to slow down or reverse” is a matter of fact. Chief contends that this statement is non-actionable opinion, and we agree. Predictions regarding the future profitability or value of a business enterprise are quintessential non-actionable opinions. See Sandefer, 58 S.W.3d at 776 (“Statements of opinion, including opinions regarding value are generally not actionable under TSA.”); Paull, 987 S.W.2d at 218-19 (holding that principal’s guarantee that investment in company’s waterflood project was “very low risk” and would fit investor’s needs were non-actionable opinions); Maness v. Reese, 489 S.W.2d 660, 663 (Tex.Civ.App.-Beaumont 1972, writ ref'd n.r.e.) (holding that shareholder’s statements regarding effect of redeeming shares on business were non-actionable opinions); Fry v. Farm & Ranch Healthcare, Inc., No. 07-05-0221-CV, 2007 WL 4355055, at *3 (Tex.App.-Amarillo Dec. 13, 2007, no pet.) (mem. op.) (“Predictions and opinions regarding the future profitability of a business generally cannot form a basis for a claim of fraud.”). Although predictions may be actionable if the speaker purports to have special knowledge of facts that will occur in the future, see Trenholm, 646 S.W.2d at 930, it is generally accepted that no one can predict future economic conditions or the behavior of the market with certainty. See Lloyd v. Junkin, 75 S.W.2d 712, 714 (Tex.Civ.App.-Dallas 1934, no writ) (holding that because “that which lies in the future cannot be a matter of certain knowledge,” representations as to future value, productiveness, efficiency, or expected earnings or profits “must be taken and understood as mere expressions of opinion, and therefore their non-fulfillment cannot be treated as fraud”); Garza v. C.L. Thomas Petroleum, Inc., No. 04-94-00374-CV, 1995 WL 522788, at *5 (Tex.App.-San Antonio Sept. 6, 1995, writ denied) (not designated for publication) (holding that gasoline wholesaler’s representations to retailer regarding future profits were non-actionable because profits depended on future economic conditions); see also Zar v. Omni Indus., Inc., 813 F.2d 689, 693 (5th Cir.1987) (“future predictions and opinions, especially those regarding the future profitability of a business, cannot form a basis for fraud as a matter of law”). Rees-Jones did not directly tie this prediction to a specific representation of existing fact, as he tied his statements about the profitability of expansion-area wells to the state of drilling technology. We hold that the trial court properly granted summary judgment with respect to this statement on the ground that it is not actionable. • “I frankly consider creating new value of $5 million per year consistently in the oil and gas business to be very difficult.” Allen contends that whether “Chief really had difficulty making a yearly profit of $5 million” is a matter of fact. But this statement is not about whether Chief in the past “had” difficulty creating value; it is a statement about whether Chief in the future will have difficulty creating new value. Additionally, Rees-Jones’s assessment of how “difficult” he “consider[ed]” a task is a statement of opinion. It is thus a prediction and an opinion. The opinion does not fall within any of the exceptions for actionable statements. It is not directly tied to any allegedly fraudulent statement of existing fact, is not a statement of intent, and does not promise future performance. Although Allen argues that Rees-Jones has “special knowledge of what was happening at Chief and in the Barnett Shale,” the statement purports to convey only Rees-Jones’s own assessment of the task’s difficulty. See Duperier v. Tex. State Bank, 28 S.W.3d 740, 749 (Tex.App.-Corpus Christi 2000, pet. dism’d by agr.) (holding that broker’s statement of assessment of safety and suitability of investment was non-actionable opinion). The difficulty of success in the oil and gas industry is not measured by Chiefs success; where it succeeded, many others failed. Additionally, as noted above, predictions regarding the future profitability of a business enterprise are quintessential non-actionable opinions. We therefore hold that the trial court properly granted summary judgment with respect to this statement on the ground that it is not actionable. • “Having made the decision not to sell the company....” Allen contends that “[w]hether Rees-Jones had truly decided not to sell the company” is a matter of fact. As noted above, statements of intent are actionable if the speaker does not in fact have such an intent at the time, and Chief failed to present evidence that Rees-Jones did not intend to sell Chief to a third party when he wrote the letter. We therefore hold that the trial court could not properly have granted summary judgment with respect to this statement on the ground that it is not actionable. 3. Conclusion We hold that Chief failed to establish that the following statements are non-actionable as a matter of law: • “Chief now has approximately $400,000 per month of overhead, so making a profit of $5 million per year simply brings us to break even.” • “Our first horizontal ‘stepout’ well ... appears at this stage of completion to be a dry hole.... With respect to the ‘expansion’ area, the approximately dozen Barnett Shale wells on production ... would show to be non-economic, indicating that further technological advancement needs to be made in order for the Barnett Shale in the ‘expansion area’ to become economic.” • “I do not expect ‘step-out’ or ‘expansion area’ wells to carry anywhere near the value of the ‘core area’ wells, and the end result of this drilling could be a decline in the value of our company.” • “I intend to work over the next ten years at a much more relaxed pace, perhaps taking a good bit of time off.” • “You should be aware that Chiefs relationship with Mr. Bob Millard ... has recently become very strained. Conflicts of a substantial nature have developed that may result in protracted litigation that will be very expensive, with the outcome unknown at this time.” • “Having made the decision not to sell the company....” But we hold that the trial court properly granted summary judgment with respect to all other statements relied on by Allen as supporting a fraud claim. B. Reliance Reliance is generally a necessary element of a fraud claim. Schlumberger, 959 S.W.2d at 181. Chief sought summary judgment on the ground that reliance was negated as a matter of law by (1) the terms of the redemption agreement and (2) Allen’s knowledge of the changes in Chiefs value between the redemption offer and its closing. 1. Contractual disclaimer of reliance Because reliance is essential to a fraudulent inducement claim, parties to an agreement can prevent a future claim that the agreement was fraudulently induced by including contract language clearly and unequivocally disclaiming reliance. See Italian Cowboy, 341 S.W.3d at 332-33; see also Schlumberger, 959 S.W.2d at 179-80. Chief asserts that the redemption agreement’s “Finality” and “Independent Investigation” clauses amount to such a disclaimer of reliance. The “Finality” clause provides that the redemption agreement “is the complete and final integration” of the parties’ undertakings and “supersedes all prior agreements and undertakings ... between the parties with respect to the subject matter hereof.” The “Independent Investigation” clause states that the redemption price was calculated and agreed to by the parties based on the Phalon appraisal and the Haas reserve report and recognizes that intervening events may have increased or decreased the value of Allen’s interest, that Allen had the opportunity to obtain any additional information about such intervening events necessary to permit him to evaluate the redemption offer, and that Allen had an opportunity to discuss and obtain answers regarding any information relating to the redemption from Chief, Phalon, Haas, and his own advisors and consultants. In this clause, Allen represents that he “has based his decision to sell” on (1) his own independent due diligence investigation, (2) his own expertise and judgment, and (3) the advice and counsel of his own advisors and consultants. Allen responds that these provisions do not amount to a clear and unequivocal disclaimer of reliance and, even if they did, such a disclaimer would not be enforceable under Forest Oil. 268 S.W.3d at 60. a. Clear and unequivocal language The threshold requirement for an effective disclaimer of reliance is that the contract language be “clear and unequivocal” in its expression of the parties’ intent to disclaim reliance. Italian Cowboy, 341 S.W.3d at 331, 336, 337 n. 8 (stating need “to protect parties from unintentionally waiving a claim for fraud,” that clarity of the disclaimer is a “requirement” for its enforceability, and that only when disclaimer is “clear and unequivocal” does analysis “then proceed” to contract’s circumstances); see Schlumberger, 959 S.W.2d at 179 (holding that disclaimer-of-reliance clause had “requisite clear and unequivocal expression of intent necessary to disclaim reliance”) (emphasis added). In imposing this requirement, the Texas Supreme Court has balanced three competing concerns. First, a victim of fraud should not be able to surrender its fraud claims unintentionally. See Italian Cowboy, 341 S.W.3d at 332 (expressing “a clear desire to protect parties from unintentionally waiving a claim for fraud”); Dallas Farm Mach. Co. v. Reaves, 158 Tex. 1, 307 S.W.2d 233, 238-39 (1957) (stating that enforcing contracts that “contain[] somewhere within their four corners exculpatory clauses in one form or another” invalidating fraud claims “circumvent[s]” the policy protected by outlawing fraud and would open “the door to a multitude of frauds”); see also Forest Oil, 268 S.W.3d at 64 (Jefferson, J., dissenting) (stating that Schlumberger “balanced parties’ need to settle disputes against our strong aversion to fraud”). Second, the law favors granting parties the freedom to contract knowing that courts will enforce their contracts’ terms, as well as the ability to contractually resolve disputes between themselves fully and finally. Italian Cowboy, 341 S.W.3d at 332; Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 912 (Tex.2007); Forest Oil, 268 S.W.3d at 58. Third, a party should not be permitted to claim fraud when he represented in the parties’ contract that he did not rely on a representation: After-the-fact protests of misrepresentation are easily lodged, and parties who contractually promise not to rely on extra-contractual statements — more than that, promise that they have in fact not relied upon such statements — should be held to their word. Parties should not sign contracts while crossing their fingers behind their backs. Forest Oil, 268 S.W.3d at 60. i. “Finality” clause While the determination of whether a particular contract is sufficiently clear to disclaim reliance hinges on each contract’s chosen words and structure, a “pure merger clause[]” is not sufficient. Italian Cowboy, 341 S.W.3d at 334 (“Pure merger clauses, without an expressed clear and unequivocal intent to disclaim reliance or waive claims for fraudulent inducement, have never had the effect of precluding claims for fraudulent inducement”). The redemption agreement’s “Finality” provision is such a pure merger clause. See 11 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 33.21 (4th ed. 1999) (“Recitations to the effect that a written contract is integrated, that all conditions, promises, or representations are contained in the writing ... are commonly known as merger or integration clauses.”); Tellepsen Builders, L.P. v. Kendall/Heaton Assocs., Inc., 325 S.W.3d 692, 699 (Tex.App.-Houston [1st Dist.] 2010, pet. denied). It makes no reference to reliance or fraudulent inducement, nor does it disavow oral representations between the parties. This generic merger provision does not amount to a clear and unequivocal expression of the parties’ intent to disclaim reliance on each other’s representations; it amounts to an expression of the parties’ intent to merge prior negotiations into the final written agreement and supersede terms not ultimately incorporated into the final writing. See Italian Cowboy, 341 S.W.3d at 334 (holding that merger provision established that parties “intended nothing more than the provisions of a standard merger clause”); see also Springs Window Fashions Div., Inc. v. Blind Maker, Inc., 184 S.W.3d 840, 870 (Tex.App.-Austin 2006, pet. granted, jdmt vacated w.r.m.) (“A merger clause ... memorializes the parties’ intent to integrate or absorb their prior negotiations, agreements, or understandings concerning the same subject matter into a subsequent written contract.”). Read in conjunction with the “Independent Investigation” clause, this provision does nothing to clarify or settle the parties’ intentions regarding reliance. ii. “Independent Investigation” clause The “Independent Investigation” clause does not contain the kind of absolute and all-encompassing language that satisfies the clarity requirement as to any fraudulent inducement claim. Cf. Forest Oil, 268 S.W.3d at 58; Schlumberger, 959 S.W.2d at 180. Nor does the statement that Allen’s decision to sell was based on his own investigation clearly and unequivocally negate the possibility that Allen’s decision was also based on information provided by Chief. Consistent with the terms of the redemption agreement, Allen could have relied on both. The clause in fact invites Allen to ask questions of Chief employees, implying that Allen not only could, but should, rely on information from Chief. To make it clear that Allen did not rely on any facts other than his own investigation, the disclaimer needed limiting language making it clear that Allen relied “only,” “exclusively,” or “solely” on his own investigation. Cf. Matlock Place Apartments, L.P. v. Druce, — S.W.3d —, —, 2012 WL 117838 (Tex.App.-Fort Worth 2012, no pet. h.) (enforcing disclaimer provision in which complaining party promised to rely “solely on its own investigation,” along with other disclaimer language); RAS Group, Inc. v. Rent-A-Ctr. E., Inc., 385 S.W.3d 630, 639 (Tex.App.-Dallas 2010, no pet.) (same); but see Fazio v. Cypress/GR Houston I, L.P., — S.W.3d -,-, 2012 WL 159929 (Tex.App.-Houston [1st Dist.] 2012, no. pet. h.) (holding that party’s promise to rely “solely” on his own investigation was not effective to disclaim reliance with respect to non-disclosure of information that other party had contractual obligation to provide). Or, the clause could include a broad and absolute abjuration of reliance on any oral representations by any other party, as was the case in Forest Oil and Schlumberger. Forest Oil, 268 S.W.3d at 54 n. 4; Schlumberger, 959 S.W.2d at 180. The omission of language limiting Allen’s reliance to his own investigation exclusively and the absence of a promise not to rely on any statement or representation by Chief are fatal to Chiefs global disclaimer of reliance argument. Chief further contends that a refusal to enforce this clause “prevents parties from contractually agreeing” to bar future fraud claims. Not so. The redemption agreement lacks a number of provisions that would provide greater clarity. It lacks: (1) an all-embracing disclaimer that Allen had not relied on any representations or omissions by Chief; (2) a specific “no liability” clause stating that the party providing certain information will not be liable for any other person’s use of the information; and (3) a specific waiver of any claim for fraudulent inducement based on misrepresentations or omissions. See Italian Cowboy, 341 S.W.3d at 334 (concluding that merger clause did not include “an expressed clear and unequivocal intent to disclaim reliance or waive claims for fraudulent inducement”); Forest Oil, 268 S.W.3d at 58 (stating that “an all-embracing disclaimer of any and all representations ... shows the parties’ clear intent”); Schlumberger, 959 S.W.2d at 181 (“a release that clearly expresses the parties’ intent to waive fraudulent inducement claims, or one that disclaims reliance on representations about specific matters in dispute, can preclude a claim of fraudulent inducement”); see also Coastal Bank SSB v. Chase Bank of Tex., N.A, 135 S.W.3d 840, 843 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (finding that “the nature of the disclaimers” demonstrated that plaintiff could not rely on other party’s representation or silence when disclaimers stated that plaintiff had not relied on defendant’s representations and that defendant would not have any liability “for any representations ... or for any omissions”). The redemption agreement does none of these. The “Independent Investigation” clause does, however, embody a clear and unequivocal intent to bar some reliance by Allen: it clearly disclaims reliance on representations concerning the redemption price, the bases for that price (the Phalon appraisal and the Haas reserve report), and whether those documents accurately reflected the value of Chief or its assets. iii. Application of disclaimer to actionable statements We next apply the redemption agreement’s limited disclaimer of reliance to each of the actionable statements asserted by Allen. • “Our first horizontal ‘stepout’ well ... appears at this stage of completion to be a dry hole.... With respect to the ‘expansion’ area, the approximately dozen Barnett Shale wells on production ... would show to be non-economic, indicating that further technological advancement needs to be made in order for the Barnett Shale in the ‘expansion area’ to become economic.” • “I do not expect ‘step-out’ or ‘expansion area’ wells to carry anywhere near the value of the ‘core area’ wells, and the end result of this drilling could be a decline in the value of our company.” Chief contends that these statements go to the value of Chief and its assets, an issue on which Allen has clearly disclaimed reliance. Allen responds that his complaint is not that the redemption price did not represent the true value of his shares but that he would not have sold his interest in June 2004 if he had known all material facts about Chiefs future prospects, such as the state of the relevant drilling technology and the status of competitors’ expansion-area ventures. To the extent these statements relate exclusively to Chiefs value, we agree with Chief that the redemption agreement expressly negates any reliance by Allen. Such reliance is disclaimed by (1) Allen’s recognition that [e]vents subsequent to the dates of the Appraisal and Reserve Report may have a positive or negative impact on the value of the Interest but [Allen] and [Chief] agree that the redemption of the Interest shall be consummated at the Redemption Price in recognition of the fact that such price was the price on the basis of which [Allen] agreed to sell, [Chief] agreed to buy, and [Chief] agreed to undertake to raise the required capital to facilitate the Closing. and (2) his contractual promise that the Redemption Price [herein] shall be the price at which the Interest shall be redeemed regardless of any difference in opinion on whether the Appraisal or Reserve Report are reflective of actual values or reserves and regardless of any change in value of the Interest that may occur subsequent to the dates of the Appraisal and Reserve Report, and each party hereby releases the other from any claims that might arise as a result of any determination that the value of the Interest at the Closing was more or less than the Redemption Price. See McLernon v. Dynegy, Inc., 347 S.W.3d 315, 331-32 (Tex.App.-Houston [14th Dist.] 2011, no pet.) (holding that employee’s reliance on alleged misrepresentation that other executives had signed similar agreements was barred by contract provision in which employee represented that he had not relied on any representations regarding agreement); see also Schlumberger, 959 S.W.2d at 181. But we have held that these statements are actionable because they are buttressed by or intertwined vrith Rees-Jones’s representations regarding the state of drilling technology and Chiefs and other companies’ expansion-area endeavors. The redemption agreement does not address these existing facts, which Allen asserts are material not only to Chiefs value at the time of the redemption and the price at which he was willing to redeem in 2004, but also to Chiefs future prospects and whether 2004 was the right time to redeem his interest. Chief did not conclusively prove that these issues would not have been material to a reasonable investor’s decision of whether to redeem his interest. Thus, we hold that the redemption agreement clearly and unequivocally disclaims reliance on Rees-Jones’s representations to the extent they convey information about Chiefs value and the suitability of the redemption price, but it does not clearly and unambiguously disclaim reliance on Rees-Jones’s representations to the extent they convey information about Chiefs future prospects in light of the state of drilling technology and Chiefs and other companies’ expansion-area endeavors. • “Chief now has approximately $400,000 per month of overhead, so making a profit of $5 million per year simply brings us to break even.” • “I intend to work over the next ten years at a much more relaxed pace” • “You should be aware that Chiefs relationship with Mr. Bob Millard ... has recently become very strained. Conflicts of a substantial nature have developed that may result in protracted litigation that will be very expensive, with the outcome unknown at this time.” • “Having made the decision not to sell the company....” The redemption agreement does not broadly disclaim reliance on any statements by Rees-Jones and it does not specifically address Chiefs overhead and profits, Rees-Jones’s work habits, Chiefs relationship with Millard, or Rees-Jones’s decision not to sell Chief to outside investors. It therefore does not clearly and unequivocally disclaim reliance on these statements. b. Remaining Forest Oil factors The clarity requirement is a threshold hurdle that must be passed for a disclaimer to be enforceable; when the disclaimer lacks a clear and unequivocal expression of intent to disclaim reliance, it will not preclude a fraudulent inducement claim regardless of the circumstances surrounding the agreement. Italian Cowboy, 341 S.W.3d at 331, 336, 337 n. 8. Because we have concluded that the redemption agreement does not clearly and unequivocally disclaim reliance with respect to Rees-Jones’s representations about Chiefs overhead and relationship with Millard, Rees-Jones’s future work habits, drilling technology, or Chief and other companies’ expansion-area endeavors, the redemption agreement does not bar Allen’s fraudulent inducement claim with respect to those statements as a matter of law. Because we have concluded that the redemption agreement is sufficiently clear and unequivocal to bar Allen’s reliance on Rees-Jones’s representation with respect to the value of Chief and its assets or the redemption price, we must look to the remaining Forest Oil factors to determine whether the redemption agreement’s disclaimer of such reliance is enforceable. i. Three of the five Forest Oil factors favor enforcement The Forest Oil Court identified four extrinsic factors that courts must consider in evaluating the validity of a contractual disclaimer of reliance: whether (1) the terms of the contract were negotiated or boilerplate, (2) the complaining party was represented by counsel, (3) the parties dealt with each other at arm’s length, and (4) the parties were knowledgeable in business matters. Forest Oil, 268 S.W.3d at 60-61; see Schlumberger, 959 S.W.2d at 179-81. The second and fourth factors weigh in favor of Chief. Allen is an attorney who specializes in oil and gas transactions and represented himself in the sale of his interest to Chief. Allen even offered to represent Chief in the sale of the company two years after the redemption. An attorney who represents himself in a legal matter in which he has particular expertise cannot claim in hindsight to lack the benefit of counsel. As an oil and gas attorney, Allen was also knowledgeable in business matters specific to the oil and gas industry. Thus, in our consideration of the second and fourth factors, we cannot say that Allen lacked representation or was not sophisticated and knowledgeable about oil and gas transactions. With respect to the third factor, Allen argues that “securities transactions are never arm’s length when a company is buying a shareholder’s stock.” Allen, however, does not cite any supporting authority for this broad proposition except for a case involving fiduciary relationships. In the absence of such authority, we reject this wide-sweeping rule. But Allen’s un-controverted evidence demonstrated that he relied heavily on Rees-Jones for advice on his investment and acted as a passive investor, and Rees-Jones exercised control over Chiefs daily affairs. Additionally, we determine below that Chief has not negated Allen’s claim that Rees-Jones owed him a formal fiduciary duty in this transaction. Chief has not shown that this factor weighs in its favor. Chief has also not shown that the first factor — whether the parties negotiated the terms of the redemption agreement— weighs in its favor. Allen states in his affidavit that Rees-Jones gave him only three days to review and sign the redemption agreement after receiving it. Chief responds that Allen negotiated the agreement because he asked if the valuation needed to be updated. Allen, however, offered evidence that he relied on Rees-Jones’s oral representation that a new valuation “was not necessary.” Chief provided no other evidence to show that the contract was negotiated. Additionally, despite Chiefs argument that the “Independent Investigation” clause “make[s] up the core of the agreement,” there is no summary judgment evidence that the parties expressly negotiated the “Independent Investigation” clause, that Rees-Jones informed Allen of the clause’s importance, or that Rees-Jones stressed the importance of Allen reviewing information available from Chief. Cf. Forest Oil, 268 S.W.3d at 60 (identifying the consideration as whether “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”); Prudential Ins. Co. of Am. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 162 (Tex.1995) (noting that clause was important part of basis of bargain). In sum, we conclude that Chief established only the second and fourth extrinsic factors from Forest Oil. We next determine whether these factors are sufficient to establish the disclaimer’s enforceability with respect to those representations that we have found were clearly and unequivocally disclaimed. ii. A disclaimer is not enforceable when only these three Forest Oil factors are present All four extrinsic factors were satisfied in Forest Oil and Schlumberger. Forest Oil, 268 S.W.3d at 60; Schlumberger, 959 S.W.2d at 179-80. The Forest Oil Court described these four factual inquiries as “factors,” suggesting that they are not absolute requirements. Forest Oil, 268 S.W.3d at 60. And this Court has previously held that an agreement between two parties barred fraud claims as a matter of law even when all of the Forest Oil factors were not present. See Atlantic Lloyds Ins. Co. v. Butler, 137 S.W.3d 199, 216-17 (Tex.App.-Houston [1st Dist.] 2004, pet denied) (holding disclaimer of reliance barred fraudulent inducement claim when all factors later identified in Forest Oil were satisfied except sophistication of parties); see also McLernon, 347 S.W.3d at 333 (noting that Forest Oil considerations are “ ‘facts ... that guide[ ] our reasoning1 and ‘factors’-not elements that all must be established”) (quoting Forest Oil, 268 S.W.3d at 60). Therefore, it is unnecessary to satisfy each factor when the parties’ intent to preclude a fraud claim is clear and unequivocal and a sufficient number of factors are satisfied to meet the public policy concerns expressed in Schlumberger and its progeny. But which factors must be satisfied and how are we to weigh the factors? Or more precisely here, is it sufficient that this is a commercial transaction between sophisticated parties represented by counsel with a disclaimer that, at least in some respects, is clear? Neither Forest Oil nor Schlumberger answers these questions. We hold that the totality of the circumstances does not support enforcing the disclaimer when the only factors that are present are clarity, sophistication, and representation by counsel because all three focus on the public policy concern that the party may be unable to understand the terms of the disclaimer but not the concern that the party may be unable to alter the terms of the disclaimer. Cf. Forest Oil, 268 S.W.3d at 58 (enforcing “freely negotiated” agreement to bar claims); Schlumberger, 959 S.W.2d at 179 (stating that parties should be able to “bargain for” agreement that precludes further disputes between them). Something more is required — either negotiated terms or an arm’s length transaction — both of which focus on the party’s ability to alter the disclaimer’s terms so that a party voluntarily surrenders its rights to a fraud claim. One of these two factors can be satisfied by demonstrating that the party who agrees to the disclaimer either (1) did in fact negotiate the contract terms or (2) had the ability to negotiate terms because the parties dealt with each other at arm’s length. See Kane v. Nxcess Motorcars, Inc., No. 01-04-00547-CV, 2005 WL 497484, at *6 (Tex.App.-Houston [1st Dist.] Mar. 3, 2005, no pet.) (mem. op.) (reviewing enforceability of “as is” clause in pre-Forest Oil case based in part on whether parties had “disparity in bargaining power” and whether agreement was “freely negotiated”). Considering the cases that provided the foundation for the Forest Oil factors supports our conclusion that it is insufficient to establish only that the parties are sophisticated and represented by counsel. In Jefferson Associates, the Court held that an “as is” clause will be enforceable only in an arm’s-length transaction involving sophisticated parties who are in “relatively equal bargaining position.” 896 S.W.2d at 162. Additionally, the Court stressed that when the parties engage in negotiations over the contract’s terms, the provision in question is “an important part of the basis of the bargain.” Id. In Schlumberger, the Court stated that it is not enough for a sophisticated party to be represented by counsel; the parties in that case also negotiated at arm’s-length. 959 S.W.2d at 180. We hold that, although the redemption agreement is sufficiently clear and unequivocal to disclaim Allen’s reliance with respect to Rees-Jones’s representations about the value of Chief and its wells, the disclaimer is not enforceable because the totality of the circumstances surrounding the redemption agreement do not satisfy the test set forth in Forest Oil for disclaimers of reliance. 2. Justifiable reliance Allen contends that “reliance is not an element of fraud by omission,” and even if it were, Chief did not conclusively negate reliance. Chief asserts that reliance is a necessary element of all fraud claims, it must be actual and justifiable, and the facts of this case make any alleged reliance by Allen unjustifiable. a. Justifiable reliance is not an element of Allen’s TSA claim but is an element of his other fraud claims In Schlumberger, the Texas Supreme Court rejected an argument that reliance is not an element of fraud by omission. Schlumberger, 959 S.W.2d at 181 (rejecting argument in context of fraud claims under common law and Business and Commerce Code); see also PAS, Inc. v. Engel, 350 S.W.3d 602, 612 (Tex.App.Houston [14th Dist.] 2011, no pet.) (stating that justifiable reliance is element of both common law fraud and fraudulent inducement). In Grant Thornton L.L.P. v. Prospect High Income Fund, the Court reiterated that reliance must be both actual and justifiable to support a fraud claim. 314 S.W.3d 913, 923 (Tex.2010). Thus, justifiable reliance is a necessary element of Allen’s claims for common law fraud and statutory fraud under the Business and Commerce Code. See Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 436 (Tex.1997) (stating that plaintiff claiming fraud by non-disclosure “must have reasonably relied upon the silence to his detriment”). Reliance is not, on the other hand, a necessary element of Allen’s fraud claim under the TSA. See Tex.Rev.Civ. Stat. Ann. art. 581-33B (West 2010); Summers v. WellTech, Inc., 935 S.W.2d 228, 234 (Tex.App.-Houston [1st Dist.] 1996, no writ) (stating that TSA does not require proof of reliance). b. Chief did not prove Allen’s reliance was unjustified Chief contends that Allen’s reliance is not justifiable because Allen admitted that, at the time of the redemption, he believed (1) “Chief had increased in value between November and June by at least 50% from the Phalon valuation,” and (2) “Rees-Jones was committing securities fraud by not revaluing his interest and updating him on the increase in value.” Chief also points to the language of the redemption agreement and a 2005 email in which Allen stated that the value of his interest in Chief had been established by the October 2003 valuation, but “the closing didn’t take place until 8 months later. We knew that the value of the enterprise would be significantly greater then, but in light of the ho