Full opinion text
EN BANC OPINION JANE BLAND, Justice. In this suit arising from the sale of land, we examine the appropriate measure of damages for a sale obtained through fraudulent inducement. A jury concluded that the seller of the land had failed to disclose material information to the buyer about the financial state of a commercial tenant who leased the land. But the jury further concluded that the buyers suffered nothing in damages proximately caused by the fraud, measured at the time of the sale, and it awarded no damages in connection with the costs incurred with the termination of the tenant’s lease, nor the legal fees the buyers incurred due to the tenant’s bankruptcy, nor the interest expense the buyers incurred on loans they obtained to facilitate the purchase. The trial court entered a take-nothing judgment in favor of the seller. A majority of a panel of our court reversed the trial court, concluding that the buyers were nonetheless entitled to damages based on the loss that the buyers took when they sold the land three years later. The majority also concluded, with one justice dissenting, that the buyers did not disclaim reliance on the seller’s promise of full disclosure in a letter of intent that the seller had signed before the sale. The seller moved for rehearing and rehearing en banc. The panel majority granted the motion for rehearing and revised its opinion, mooting the en banc request, but its disposition remained the same. The seller moved again for en banc consideration. Concluding that the case warranted en banc review, a majority of our court has voted to reconsider this case. See Tex.R.App. P. 49.7. We withdraw the panel’s August 16, 2012 opinion on rehearing and judgment, and substitute this opinion and judgment in its place. We hold that the trial court properly entered a take-nothing judgment, because the jury found that no damages were proximately caused by the fraud, measured at the time of thé sale, and it found no incidental or consequential damages relating to the sale. We further hold that the trial court properly denied the seller’s request for attorney’s fees as the prevailing party, because the parties’ contract did not provide for a recovery for attorney’s fees incurred in defense against claims of fraud. We therefore affirm. Background Peter, Shari, and Eric Fazio sued Cypress/GR Houston I, L.P., Cypress/GR Houston, Inc., and Cypress Equities, Inc. (collectively, Cypress) for fraudulent inducement, relating to the Fazios’ purchase, in October 2003, of commercial land located on the frontage road of Interstate 10 in Houston. At that time, Garden Ridge Pottery leased the site for one of its retail stores. After identifying the land as an investment prospect, the Fazios notified Cypress of their interest in purchasing it. In early September 2003, the parties executed a letter of intent, signed by Peter Fazio and a representative of Cypress Equities, in which Cypress agreed to allow the Faz-ios to investigate “all aspects of the Property” and further agreed to provide the Fazios with “all information in [Cypress’s] possession.” The Fazios and their brokers subsequently conducted due diligence and inspected the property. As part of this process, they requested “every scrap of paper” that Cypress had regarding the property. The Fazios reviewed multiple appraisals of the property; researched the property’s primary tenant, Garden Ridge; investigated the lease terms; reviewed Garden Ridge’s audited financial statements; and contacted Garden Ridge’s CFO for an assessment of Garden Ridge’s financial condition. The Fazios’ investigations revealed that Garden Ridge was restructuring and struggling financially, but that Garden Ridge had recently secured a line of credit for its operations to continue through the 2003 Christmas season. During their discussions with Garden Ridge’s CFO, the CFO was optimistic that Garden Ridge could work through its financial difficulties. The Fazios’ own lenders were not as certain, and told the Fazios that Garden Ridge was not a viable long-term tenant. Garden Ridge’s audited financial statements, which the Fazios reviewed, showed that Garden Ridge had defaulted on its debt covenants and was in the process of corporate restructuring. Despite its agreement in the letter of intent to provide to the Fazios “all information in its possession,” Cypress did not disclose to the Fazios that, in February 2003, Garden Ridge had sent a letter to Cypress stating that it was “restructuring” and needed “to reduce our occupancy costs at your premises.” Cypress also did not disclose that Garden Ridge had sought a 30% rent reduction for the 1-10 property as well as a similar reduction for another property owned by a separate Cypress entity and leased to Garden Ridge. Finally, Cypress failed to disclose that in early September 2003, Cypress’s own lender was concerned about the financial condition of Garden Ridge and had asked that Cypress’s President, Chris Maguire, execute a personal guaranty for the $5,704,000 loan that it had made to Cypress that had been formerly secured only by the property. Maguire eventually signed the guaranty— on September 25, one day after Cypress sold the land to the Fazios. The parties executed the final purchase agreement on September 24, 2003 for a price of $7,667,000. The agreement contained various provisions disclaiming the Fazios’ reliance on representations made by Cypress to the Fazios. Garden Ridge paid its rent in October, November, and December, but it defaulted on its rent in January 2004, and shortly thereafter declared bankruptcy. Once in Chapter 11 bankruptcy protection, Garden Ridge rejected its lease. The Fazios attempted, unsuccessfully, to re-lease the land. They later sold it in 2007 for $3,750,000. The jury found that Cypress Equities, but neither of the other Cypress entities, had defrauded the Fazios. It attributed 100% responsibility for any harm to the Fazios to Cypress Equities, but it found that the Cypress entities operated as a single business enterprise. The trial court instructed the jury on two measures of direct damages, and various measures of incidental and consequential damages. The trial court’s two measures for actual damages were distinctly different: Jury question 2(1) instructed the jury to determine “[t]he difference between the price the Fazios paid for the Property and the amount they received when they sold the Property”; to this question, the jury answered $3,961,524.60, which is the actual difference in the two amounts. Question 2(2), in contrast, instructed the jury to determine “the difference, if any, between the price the Fazios paid for the Property and the value of the Property at the time the Purchase Agreement was executed”; to this question, the jury answered $0. In response to each of four instructions on incidental and consequential damages, the jury also answered $0. But, finding clear and convincing evidence óf fraud, the jury awarded $667,000 in exemplary damages. Both parties moved for judgment in the trial court. Among other grounds, Cypress argued that the Fazios were not entitled to a judgment based on the jury’s answer to question 2(1) because it was an improper measure of damages, and that it, Cypress, was entitled to judgment based on the jury’s answer to question 2(2), in which the jury awarded nothing under the proper measure of damages. The Fazios requested judgment on the jury’s verdict for the amount the jury found in answer to question 2(1), plus exemplary damages. After extensive post-verdict briefing, the trial court entered a take-nothing judgment for Cypress and denied Cypress’s request for attorney’s fees. The Fazios appeal the trial court’s judgment against them on their claim for fraudulent inducement, contending that the trial court erred in disregarding the jury’s liability and damages findings in their favor. They contend that the trial court instead should have disregarded the damages questions the jury found against them. Cypress also appeals, challenging the trial court’s denial of its motion for attorney’s fees. Damages A. Standard of Review The Fazios challenge the trial court’s judgment disregarding question 2(1), arguing that the question was a proper measure of damages. A trial court should disregard a jury finding if the jury question to which the finding responds is legally defective; the answer to a legally defective question is immaterial to the judgment. See Spencer v. Eagle Star Ins. Co., 876 S.W.2d 154, 157 (Tex.1994); Williams v. Briscoe, 187 S.W.3d 120, 124 (Tex.App.Houston [1st Dist.] 2004, no pet.). Similarly, a trial court should disregard a jury finding if the evidence is legally insufficient to support it, or if a directed verdict would have been proper because a legal principle precludes recovery. Tex.R. Civ. P. 301; see Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex.1991); Williams, 137 S.W.3d at 124; John Masek Corp. v. Davis, 848 S.W.2d 170, 173 (Tex.App.-Houston [1st Dist.] 1992, writ denied). B. Measuring Direct Damages There are two measures of direct damages in a fraud case: out-of-pocket and benefit-of-the-bargain. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 49 (Tex.1998) (citing Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 817 (Tex.1997)). Out-of-pocket damages measure the difference between the amount the buyer paid and the value of the property the buyer received. Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 373 (Tex.1984). Benefit-of-the-bargain damages measure the difference between the value of the property as represented and the actual value of the property. Id. Both measures are determined at the time of the sale induced by the fraud. Id.; Arthur Andersen, 945 S.W.2d at 817; Woodyard v. Hunt, 695 S.W.2d 780, 733 (Tex.App.Houston [1st Dist.] 1985, no writ); Highland Capital Mgmt., L.P. v. Ryder Scott Co., 402 S.W.3d 719, 728-30, 2012 WL 6082713, at *7-8 (Tex.App.-Houston [1st Dist.] 2012, no pet. h.). Losses that arise after the time of sale may be recoverable as consequential damages in appropriate cases. Formosa Plastics, 960 S.W.2d at 49 n. 1 (citing Arthur Andersen, 945 S.W.2d at 817). Consequential damages must be foreseeable and directly traceable to the misrepresentation and result from it. Arthur Andersen, 945 S.W.2d at 816. An investor may not “shift the entire risk of an investment to a defendant who made a misrepresentation” if the loss is unrelated to the misrepresentation and due to market fluctuations or the chances of business. Id. at 817; see Siv. Battery Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097, 1098 (1938). Jury instructions on consequential damages must be explicitly premised on findings that the losses were foreseeable and directly traceable to the misrepresentation. El Paso Dev. Co. v. Ravel, 339 S.W.2d 360, 366-67 (Tex.App.-El Paso 1960, writ ref'd n.r.e.); Turner v. PV Int’l Corp., 765 S.W.2d 455, 464 (Tex.App.-Dallas 1988, writ denied). The jury instructions in this case included two questions on direct damages, questions 2(1) and 2(2). Jury question 2(1) instructed the jury to determine the difference between the actual price that the Fazios paid for the property and the actual price at which they sold it more than three years later, without consideration of any fluctuations in value absent any fraud. Because the question does not isolate the reduction in value attributable to the fraud, it asks a math word problem of basic subtraction, and is not a proper measure of damages. In contrast, jury question 2(2) has it right, because that question parallels the rule for calculating out-of-pocket damages. Question 2(2) properly instructed the jury to determine the difference between the fraud-induced price that the Fazios paid for the property and the actual value of the property they received when they purchased it. See Leyendecker, 683 S.W.2d at 373; Arthur Andersen, 945 S.W.2d at 817. And, the question correctly focused the jury on the time of the sale, because direct damages for fraud, including out-of-pocket damages, are properly measured at the time of the sale induced by the fraud — in this case, when the purchase agreement was executed — and “not at some future time.” Woodyard, 695 S.W.2d at 733; see Leyendecker, 683 S.W.2d at 373; Arthur Andersen, 945 S.W.2d at 817. The jury responded that such damages were $0. It found other sorts of incidental and consequential damage to be $0 as well, in questions 2(3), 2(4), 2(5), and 2(6). The Fazios did not challenge the legal sufficiency of any of these findings. The Fazios contend, and the dissents agree, that jury question 2(1) instructed the jury on a proper measure of damages, and thus the trial court erred in disregarding it. The dissent cites Henry S. Miller Co. v. Bynum to support its position that fraud damages need not be measured at the time of sale, but may be measured as the loss on the Fazios’ investment three years after the sale. 836 S.W.2d 160, 162-63 (Tex.1992). But more than a decade ago, our court cast a similar erroneous interpretation of Bynum to hold that the plaintiff in a fraud action could recover the loss on its investment, and not merely time-of-sale damages, when the plaintiff invested in a business that went bankrupt just over a year later. The case was Ar thur Andersen & Co. v. Perry Equip. Corp., and the Texas Supreme Court reversed our court. See 898 S.W.2d 914 (Tex.App.-Houston [1st Dist.] 1995), rev’d, 945 S.W.2d 812 (Tex.1997). In Arthur Andersen, the Texas Supreme Court expressly rejected such an interpretation, holding that, under the common law measure of fraud damages, direct damages must be measured at the time of the sale that induced the fraud. Arthur Andersen, 945 S.W.2d at 817. It further held that losses beyond the difference between the amount the plaintiff paid and the value it received at the time of sale could be recovered only as consequential damages. Id. Jury question 2(1) does not measure damages that were foreseeable and directly traceable to the misrepresentation, and thus, as the Fazios concede, was not an instruction on consequential damages. See Ravel, 339 S.W.2d at 366-67. The jury found $0 damages in response to four measures of incidental and consequential damages on which it was instructed. Because jury question 2(1) did not instruct the jury on a valid measure of damages, and the jury found zero in damages in response to the proper instructions on direct and consequential damages, the trial court properly disregarded the damages found in response to question 2(1) and accorded judgment based on the jury’s zero damages finding in answer to questions 2(2) through 2(6). C. Rescission Damages The Fazios also contend that jury question 2(1) instructs the jury on a rescission or restitution measure of damages. Out-of-pocket damages, if properly measured, are restitution damages. Baylor Univ. v. Sonniehsen, 221 S.W.3d 632, 636 (Tex.2007) (per curiam). Rescission is a type of remedy in a fraud claim, but it is not a proper remedy if the amount the plaintiff pays for the property is equal to its value at the time the plaintiff purchased the property. Bryant v. Vaughn, 33 S.W.2d 729, 730 (Tex.1930) (holding that plaintiff had no right to rescind in fraud action where jury found that value of property received by plaintiff was equal to amount plaintiff paid for property); see also Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817, 823 (Tex.2012) (“[A] rescission award requires a showing of actual damages.”); Grundmeyer v. McFadin, 537 S.W.2d 764, 769 (Tex.Civ.App.Tyler 1976, writ ref'd n.r.e.); Tex. Indus. Trust, Inc. v. Lusk, 312 S.W.2d 324, 327 (Tex.Civ.App.-San Antonio 1958, writ ref'd). A plaintiff seeking to rescind a transaction induced by fraud “must surrender any benefits received” in the transaction, as “rescission is not a one-way street. It requires a mutual restoration and accounting, in which each party restores property received from the other.” Cruz, 364 S.W.3d at 824, 826 (citing Tex. Emp’rs Ins. Ass’n v. Kennedy, 135 Tex. 486, 143 S.W.2d 583, 585 (1940)). Jury question 2(2) properly instructed the jury on out-of-pocket damages. In finding no out-of-pocket damages in response to that question, the jury found no restitution damages. See Sonnichsen, 221 S.W.3d at 636. The jury’s finding of no actual damages — that the amount the Fazios paid for the property equaled the value of the property when the Fazios purchased it, and that the Fazios suffered no consequential damages — precludes a money judgment based on a rescission theory. See Bryant, 33 S.W.2d at 730; Cruz, 364 S.W.3d at 823. Pursuant to a proper measure of rescission damages, the Fazios would have to reduce any amount of damages by whatever benefit they received in the transaction. See Cruz, 364 S.W.3d at 824. As the jury found that the Fazios received property equal in value to what they paid for it, and that the fraud did not proximately cause money damages under a proper measure, rescission is not a supportable remedy. See id. Question 2(1), in any event, does not ask about fraud-induced losses, albeit at a later time; rather, it asked the jury to mechanically subtract the price for which the Fazios sold the property three years later from the original purchase price. We hold that the trial court properly disregarded the jury’s answer to question to 2(1), as it did not measure rescission or restitution damages. Spencer, 876 S.W.2d at 157 (holding that jury question is immaterial and jury’s answer should be disregarded if question is legally improper). D. Exemplary Damages Finally, because the jury found no direct or consequential damages, the Faz-ios could not recover exemplary damages. See Wright v. Gifford-Hill & Co., Inc., 725 S.W.2d 712, 714 (Tex.1987) (“When a jury fails to find a plaintiff has sustained actual damages, the plaintiff is foreclosed from recovering exemplary damages.”); see also Sec. Inv. Co. of St. Louis v. Fin. Acceptance Corp., 474 S.W.2d 261, 270 (Tex.Civ.App.-Houston [1st Dist.] 1971, writ ref'd n.r.e.). The trial court therefore properly disregarded the jury’s award of exemplary damages. Attorney’s Fees Cypress requested that the trial court award it attorney’s fees pursuant to section 7.3 of the purchase agreement, which requires, [i]n the event either party hereto is required to employ an attorney in connection with claims by one party against the other arising from the operation of this Agreement, the non-prevailing party shall pay the prevailing party all reasonable fees and expenses, including attorney’s fees incurred in connection with such transaction. The Fazios sued Cypress for common-law fraud, statutory fraud in a real estate transaction, and fraudulent inducement, but not for breach of contract. The trial court directed a verdict on the first two fraud claims, leaving the jury to decide only the fraudulent inducement claim. Cypress presented evidence that its attorney’s fees through judgment in the trial court were $987,934.64 and its expenses were $53,703.58. The trial court denied Cypress’s request for fees. Although the Fazios’ claims against Cypress sound in tort, Cypress contends that it may avail itself of the contractual remedy of attorney’s fees, because the tort claims asserted against it should be read to “arise from the operation of the purchase agreement. The Fazios respond that Cypress reads the contract too broadly, and the provision at issue cannot require it to pay attorney’s fees to a party defending against a tort claim that arose before the parties executed their agreement. Standard of review We review the trial court’s construction of an unambiguous contract de novo. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003); MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650-651 (Tex.1999). If a term is not defined by the parties, we use the term’s plain, ordinary, and generally accepted meaning unless the instrument shows that the term has been used in a technical sense. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996). Analysis Cypress compares the prevailing party provision in the purchase agreement to prevailing party provisions in other agreements that provide for the recovery of attorney’s fees in claims “related to” the agreement, which courts have interpreted to permit recovery of attorney’s fees in fraudulent inducement claims. See Robbins v. Capozzi, 100 S.W.3d 18, 26-27 (Tex.App.-Tyler 2002, no pet.) (holding party entitled to recover attorney’s fees for successfully defending fraud and DTPA claims under contract provision for such fees when agreement allowed their recovery by “[t]he prevailing party in any legal proceeding brought under or with respect to the transaction described in his contract”); Rich v. Olah, 274 S.W.3d 878, 888 (Tex.App.-Dallas 2008, no pet.) (holding that fraud and DTPA tort claims related to contract for purpose of provision awarding attorney’s fees when contract provided for recovery by “prevailing party in any legal proceeding related to this contract”). Other prevailing party provisions that do not use the “with respect to” or “related” language have been construed more narrowly. See, e.g., Oat Note, Inc. v. Ampro Equities, Inc., 141 S.W.3d 274, 280-81 (Tex.App.-Austin 2004, no pet.) (holding that prevailing party in misrepresentation claim could not recover attorney’s fees under provision allowing party to recover attorney’s fees if it “prevails in any litigation to enforce this Contract”). The language in this agreement is somewhere between the more broadly worded “related to” or “with respect to” and the more narrow “to enforce”. “Arising from the operation” of an agreement is more limited than “related to” an agreement. “Arising” means to originate or stem from. Black’s Law Dictionary 122 (9th ed. 2009). “Operation” refers to the act or process of functioning or performing or “being in or having force or effect.” See Merriam Webster’s Collegiate Dictionary 869 (11th ed. 2003); Black’s Law Dictionary 1201 (9th ed. 2009). Thus, “arising from the operation” of the agreement means originating from the performance of the agreement or the legal effect and obligations imposed by the agreement. See, e.g., Pagel v. Pumphrey, 204 S.W.2d 58, 64 (Tex.Civ.App.-San Antonio 1947, writ ref'd n.r.e.) (explaining that operation of agreement is its legal effect and obligations that it imposes on the parties); Cont’l Sav. Ass’n v. U.S. Fid. & Guar. Co., 762 F.2d 1239, 1245 (5th Cir. 1985) (referring to contract’s “operation” parties’ performance of legal obligations imposed by contract). The language of section 7.3 of the purchase agreement more closely resembles the limited “to enforce” than the expansive “to relate.” The Fazios’ claims are based on a failure to disclose information that Cypress promised to disclose before the parties ever entered into the purchase agreement. This is not a dispute about performance under the agreement or a suit for its breach. See Formosa Plastics, 960 S.W.2d at 47 (“[A]n independent legal duty, separate from the existence of the contract itself, precludes the use of fraud to induce a binding agreement.”). While a contract undoubtedly can affect the scope of a legal duty to not commit fraud and is essential in determining the measure of damages for fraudulent inducement, the tort itself in this instance does not arise from the contract’s operation — it was a pre-contract tort to induce a sale. The parties did not choose to allow for recovery of fees incurred in defending against extra-contractual tort claims by including torts or claims more broadly “relating to” the agreement. We hold that the Fazios’ claims against Cypress do not “arise from the operation” of the purchase agreement; hence, the trial court correctly ruled that Cypress is not entitled to attorney’s fees for defending against these claims. Conclusion The trial court properly entered a take-nothing judgment, because the jury found no actual damages under their correct measurement. The trial court properly denied Cypress’s request for attorney’s fees, because the Fazios’ fraud and fraudulent inducement claims arose from conduct that occurred before the purchase agreement’s execution, and not from its operation, and the agreement’s attorney’s fees provision does not encompass torts or extra-contractual claims. We therefore affirm the judgment of the trial 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.
MICHAEL MASSENGALE, Justice, concurring. 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. Athough it was not necessary for the en banc majority to decide this issue to affirm the trial court’s take-nothing judgment — and the en banc majority did not decide the issue — it continues to be my opinion that it is an independent basis to affirm. 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 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 seller breached duties of disclosure arising from 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, the terms of the LOI were 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: • 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 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 aspects of a transaction or the relationship between the parties. One effect of a merger clause in this circumstance is to invoke the substantive doctrine of the par-ol 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 5.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.” Bar-oid 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 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,” 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 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 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.” Section 5.2(b) and (c) included provisions for the treatment of proprietary 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.... 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.” 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. The phrase “in any other written or oral communications transmitted or 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.” 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 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. 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 and Forest Oil, 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 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. 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 and unequivocally provides that the seller disclaims and that the buyer waives “any and all” liability of that nature. 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 ac-knowledgement that “Purchaser shall rely solely upon its own investigation with respect to the Property, including, without 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 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. 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 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. . All of my quotations from and other references to the "dissent” are references to the principal dissenting opinion authored by Justice Keyes. . 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. .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). . 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. 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. . 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 basic concept of a letter of intent is to provide the parties with a way to structure their agreement without entering a binding contract”). . 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. . 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.” . 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. . 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.”). . 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)). .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)). . 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). . T