My son Jon Lautin is in law school at Boston University. He wrote this, and it is reprinted here with his permission.
bad, and courts don’t like it.
Secchi and his wife Jane Secchi opened a restaurant called Italian Cowboy in
Keystone Shopping Center, in Dallas. The land and building was owned by
Prudential Insurance Company and had been previously leased to Hudson’s Grill.
Evidently Hudson’s struggled to pay rent, and vacated.
lease contained two clauses relevant to a claim later asserted by M/M Secchi:
the first stated that the Secchis did not rely on any representations by
Prudential except those stated in the lease (a “Merger” clause). The second contained an “Entire Agreement” clause stating that the lease constitutes the
entire agreement and no changes are binding unless signed by both parties.
signing the lease the Secchis were assured by agents of the landlord that the
building was new, had no problems, was in “perfect condition” and that the previous
tenant had no issues with the building. However, immediately after moving in
the Secchis noticed that there was a sewer stink permeating the building. After
some investigating they discovered that the grease trap was improperly
installed which caused the terrible smell.
Secchis and Prudential attempted to fix the problem but were unsuccessful.
Before Italian Cowboy was scheduled to open for business, the Secchis realized
that the smell prevented the possibility of a successful restaurant. They
stopped paying rent and sued Prudential for fraud and negligent
misrepresentation. Prudential counterclaimed for breach of contract since the
Secchis stopped paying rent.
facts allowed the Secchis to win approximately $600,000 in damages in trial
court. The previous tenants of the building, also owners of a restaurant,
notified Prudential of the foul smell long before the Secchis started lease
negotiations. Nonetheless, the defendants claimed that they were not aware of
the stench when confronted by the Secchis. Prudential reassured the Secchis
numerous times before signing the lease that the building was in perfect
condition. These statements, determined to be false in the trial court, were
enough to prove fraud and negligent misrepresentation.
Or so the Secchis thought.
Texas Court of Appeals disagreed and held that the lease barred claims for
fraud and negligent misrepresentation. The Court of Appeals stated that not all
“Representation” clauses bar fraud
and negligent misrepresentation claims unless it is clear that both parties
intend the clause to be binding. Reverting back to a fundamental principal of
American contract law, the Court of Appeals decided that both the plaintiff and
defendant had a “meeting of the minds” to bar all fraud claims. Furthermore,
the Appellate Court held that there could be no fraud and negligent
misrepresentation because the parties were experienced businesspeople and they
had competent attorneys negotiating the contract. Therefore, the merger clause is
binding since the evidence suggests the parties meant it to be binding.
Or so Prudential thought.
Supreme Court of Texas reversed the Court of Appeals’ decision. The Supreme
Court held that the language of the “Representation”
and “Merger” clauses did not show
intent to bar allegations of fraud and negligent misrepresentation. The Court
further explained that even if the parties intended to release all claims of
fraud, the clauses in the contract did not contain “clear and unequivocal
language” to that effect.
ruling in this case may indicate a change in direction for the Supreme Court of
Texas. In a landmark case in 1997, Schulumberger Technology Corp. v. Swanson,
the Court held that a particular contract with a similar “Representation” clause effectively barred all claims of fraud.
While there are differences between the facts of the two cases, the Texas Supreme
Court’s willingness to hear the Italian Cowboy case and its decision that fraud
was not barred could show that Texas is following other states and taking a
hard-line stance on fraud.
See Italian Cowboy Partners, Ltd. v. The
Prudential Insurance Company of America; No. 08-0989; Supreme Court of
Texas; April 15, 2011.
will usually allow a party to stop performing their obligations under a
contract if that party was fraudulently induced into entering the contract.
clauses that appear to bar fraud claims may not be sufficient to bar fraud
like juries, can be unpredictable.
Reprinted with the permission of North
Texas Commercial Association of REALTORS®, Inc.