AFFIRM in part; REVERSE and REMAND in part; and Opinion Filed M arch 15, 2019 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-17-01144-CV GREAT HANS, LLC, Appellant V. LIBERTY BANKERS LIFE I NSURANCE CO., Appellee On Appeal from the 192nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-12254 

### MEMORANDUM OPINION Before Justices Whitehill, Molberg, and Reichek Opinion by Justice Reichek Liberty Bankers Life Insurance C o. signed a contract to sell pr operty in the U.S. Virgin Islands to Great Hans, LLC, but ultimately sold the property to another party. LBLIC then sued Great Hans seeking a declaration that their contract was not va lid, binding, or enforceable. Great Hans counterclaimed for breach of contract, fraud, and conspira cy and sought declarations invalidating contractual clauses that limited LBLIC’s liability and waived a jury. The trial court granted LBLIC’s motions for summary judgment an d rendered a takenothing judgment on Great Hans’s claims. 1 In five issues, Great Hans challenges the trial court’s rulings. For reasons set out below, we reverse the trial court ’s judgment on Great Hans’s breach

1 LBLIC nonsuited its claims for declaratory judgment and attorn ey’s fees, making the judgment final.–2– of contract claim and remand the claim for further proceedings. We affirm the judgment in all other respects.
F ACTUAL B ACKGROUND This case involves two private islands in the U.S. Virgin Islan ds––Great Hans Lollick Island and Little Hans Lollick Island––and a third parcel of la nd, Megan’s Bay Lot (collectively “Islands”). LBLIC obtained an i nterest in the Islands through a mortgage loan it extended to an entity, referred to in the reco rd as the “Tizes group,” that la ter defaulted on the note. The Tizes group ultimately filed for bankrupt cy, and the loan was modifie d to give the debtor an opportunity to sell the properties through a bankruptcy court-approved plan . Under this plan, LBLIC received the rights to the properties subj ect to an eighteen-month marke ting process. LBLIC had deeds created conveying the right, title, and interest in the Islands to Liberty Life Service Corporation, a wholly owned subsidiary of LBLIC. The deeds were held in escro w during the marketing period and, if there were a default, LBLIC had the right to cause the deeds to be recorded in the U.S. Virgin Islands. 2 The Tizes group did not sell the Islands and failed to pay off the debt. But LBLIC chose not to exercise its right to record the deeds immediately and t ake title to the property. Rather, in January 2013, the Tizes group entered an option agreement with another entity, Archipelago, LLC, to purchase the property, and LBLIC approved the agreement. So long as timely and regular payments were made to LBLIC, LBLIC agreed to not record the dee ds and take the deeds in lieu of foreclosure. Ultimately, the sale did not go through becaus e the payments were not timely made and LBLIC gave notice of defau lt. Shortly after, Archipelago filed notices of interest in the

2 Because the record provided little information regarding the p rior bankruptcy, the facts relate d to the bankruptcy proceeding were taken from Great Hans’s brief only to provide historical context. LB LIC has not challenged the accuracy of any of these facts. See T EX

. R. A PP

. P. 38.1(g).–3– Islands, claiming an ownership int erest in the property pursuan t to the option agreement and creating a cloud on title. The Isla nds were deeded to LLSC, an d LLSC recorded the deeds in lieu of foreclosure in September 2013. After the option agreement failed, LBLIC went forward with a p roposal by James Eckel, a real estate developer who expres sed interest in purchasing the Islands while it wa s under option. Over the next several months, Ec kel’s attorney Peter Marullo an d LBLIC negotiated several versions of an agreement, and Eckel formed Great Hans as a sing le-purpose entity to consummate the transaction. Although LLSC wa s actually the title owner, L BLIC and Great Hans signed a Purchase and Sale Agreement on November 4, 2013. By the date o f signing, Great Hans was aware of the option agreement, A rchipelago’s filing of notices of interest, and the previous bankruptcy, but it was not actually aware that LLSC was the tit le owner. Under the PSA, Great Hans agreed to pay $9.35 million for the I slands and the Megan’s Bay lot with $4.67 million to be delivered to the title company on or before closing and the balance to be seller-financed. The PSA p rovided for a sixty-day feasib ility period with a closing date to follow thirty days later. In apparent recognition of the ongoi ng title issue created by Archipelago’s filing of notices of interest, the PSA also included a provisio n obligating LBLIC to use “commercially reasonable efforts” to defend against claims by a prior owner, option holder, or debtor or creditor in the original bankruptcy case that asserte d a claim, right, or interest to purchase the Islands. The provision provided an additional year for LBL IC to resolve any title issues and, if unsuccessful, gave Great Hans the option of terminating the contract or proceeding to closing. The PSA also contained two other provisions relevant to this ap peal: (1) a waiver of jury trial and (2) a limitation on damages if LBL IC defaulted and specific per formance was unavailable. Great Hans paid $250,000 in escrow as called for by the PSA. A lso, in accordance with the PSA, Great Hans requested a title report. Less than two we eks later, the title company–4– circulated a title commitment on the transaction. The commitme nt showed the interest in the property was vested in LLSC and r equired an amendment to the PS A correcting the seller’s name to LLSC. It also contain ed several exceptions. Once the PSA was executed, LBLIC notified Archipelago it had a contract with another buyer, which predictably resulted in litigation between the par ties in early 2014. In that suit, LBLIC took the position Archipelago no longer had a right to pu t cloud on the title because its option was gone. Over the next several weeks, Great Hans and LBLIC twice agreed to amend the PSA to extend the feasibility and title objection periods. 3 The feasibility period was extended to March 7, 2014, which then made the closing date April 6, 2014, subject t o any other provisions of the PSA, 4 and title objections were due March 4, 2014. On March 3, Great Hans gave written notice of its objections to certain exceptions i n the title report, including the Archipelago litigation. LBLIC, through its counsel, Jay LaJone, responded in writing. With re spect to the pending litigation, LaJone said “we will need to address how it is to be treated. My initial feeling is that we make it subject to the same provisions in the Contract regarding the Op tion Agreement, but I need to discuss this with my client.” LaJone further stated until the issues were resolved, LBLIC reserved the right to indicate whic h objections it could cure. In March, after the feasibility p eriod expired and Great Hans h ad not terminated the transaction, LBLIC requested t hat $100,000 of the escrow deposi t be released to it. Great Hans authorized the release because it intended to purchase the prop erty. The transaction, however, did not close on April 6 because LBLIC could not convey good title. Great Hans believed the “contract

3 At the time of the second amendment in February 2014, the part ies had received the revised title commitment, which again show ed LLSC as the fee simple owner of the properties.
4 Although the amendments use the term “Inspection Period,” it is undisputed this referred to the feasibility period.–5– continued” and LBLIC was still wo rking to clear the title defec ts caused by the Archipelago litigation. But, shortly after t hat date, Great Hans said it n o longer received updates from LBLIC. During this same timeframe in March 2014, Bradford Phillips, pr esident of LBLIC, was contacted by yet another company, U.S. Virgin Islands Propertie s, LLC, which was also interested in buying the Islands. Phillips did not tell the company that the Islands were under contract and did not tell Great Hans about t he new potential buyer. Rather, in September 2014, LBLIC settled the Archipelago litigation, and that same month, LLSC transferr ed the Islands to USVIP, who paid $23 million. Phillips said the USVIP transaction was a “better transaction” because it was a higher purchase price and all cash. LBL IC did not inform Great Hans t hat there was another bidder on the property, that the Archipelago litigation had settled, or t hat the Islands were sold to another buyer. A month after the sale, LBLIC sued Great Hans, seeking a decla ratory judgment that the PSA was not a valid, binding, or enforceable contract. Great H ans filed an answer asserting a general denial and affirmative defenses. Additionally, it file d a counterclaim alleging LBLIC breached the PSA, engaged in fraud and conspiracy, and sought d eclarations invalidating the contractual provisions waiving a jury trial and limiting LBLIC’ s liability. Great Hans claimed damages of at least $13.65 million, which is the difference bet ween the price it would have paid for the Islands and what USVIP paid for the Islands. LBLIC filed traditional and no- evidence motions for summary ju dgment on Great Hans’s counterclaims. The trial court granted the motions and (1) str uck Great Hans’s demand for a jury, (2) rendered a take-nothing judgment on all of Great Hans’s cou nterclaims, and (3) alternatively declared the “liquidated damages clause” was reasonable and enf orceable. This appeal followed.–6– S TANDARD OF R EVIEW We review an order granting summary judgment de novo. Merriman v. XTO Energy, Inc. , 407 S.W.3d 244, 248 (Tex. 2013). When reviewing a traditional summary judgment in favor of a de fendant, we determine whether the defendant conclusively disproved an element of the plaintiff’s claim or conclusively proved every element of an affirmative defense. Durham v. Children’s Med. Ctr. of Dallas , 488 S.W.3d 485, 489 (Tex. App.—Dallas 2016, pet. denied). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be draw n from the evidence. Id . We take as true all evidence favorable t o the nonmovant and indulge eve ry reasonable inference and resolve any doubts in the nonmovant’s favor. Exxon Mobil Corp. v. Rincones , 520 S.W.3d 572, 579 (Tex. 2017). In a no-evidence motion for summary judgment, the movant need only allege there is no evidence to support an essential element of a claim on which a nonmovant has the burden of proof at trial. See T EX

. R. C IV

. P. 166a(i); Sw. Elec. Power v. Grant , 73 S.W.3d 211, 215 (Tex. 2002). Once that occurs, the burden shifts to the nonmovant to present evidence that raises a fact issue on the challenged elements. T EX

. R. C IV

. P. 166a(i); Swan v. GR Fabrication, LLC , No. 05-17-00827- CV, 2018 WL 1959486, at *1 (Tex. App.—Dallas Apr. 26, 2018, no pet.) (mem. op.). The nonmovant will defeat a no-evidence summary judgment by present ing more than a scintilla of evidence to raise a genuine issue of material fact. Swan , 2018 WL 1959486, at *1. More than a scintilla of evidence exists if the evidence rises to a level t hat would enable reasonable and fairminded people to differ in their conclusions. Ford Motor Co. v. Ridgway , 135 S.W.3d 598, 601 (Tex. 2004). “[I]f a no-evidence motion for summary judgment and a tradition al motion for summary judgment are filed which respectiv ely asserts the plaintiff has no evidence of an element of its–7– claim and alternatively asserts that the movant has conclusivel y negated that same element of the claim, we address the no-eviden ce motion for summary judgment f irst.” Cooper v. M.N. Gumbert Corp. , No. 04-17-00833-CV, 2018 WL 4470748, at *2 (Tex. App.—San Ant onio Sept. 19, 2018, pet. denied.) (mem. op.) (quoting Williams v. Parker , 472 S.W.3d 467, 469–70 (Tex. App.—Waco 2015, no pet.)). But if the traditional motion challenges a cau se of action on an independent ground, we consider that ground first “be cause it would be unnecessary to address whether a plaintiff met his burden as to the no-evidence challenge if the cause of acti on is barred as a matter of law.” Id. (citing Lotito v. Knife River Corp.-S. , 391 S.W.3d 226, 227 n.2 (Tex. App.—Waco 2012, no pet.) ); Union Pac. R.R. Co. v. Brown , No. 04-17-00788-CV, 2018 WL 6624507, at *2 (Tex. App.—San Antonio Dec. 19, 2018, no pet.).
B REACH OF C ONTRACT Great Hans first challenges the trial court’s take-nothing summ ary judgment on its breach of contract claim, which centered on LBLIC’s sale of the Island s to a third party, USVIP, during a time in which Great Hans ar gues it had the Islands under cont ract. With respect to this claim, the trial court determined the cont ract terminated on the original closing date of April 6, 2014, which was months before LBLIC (1 ) settled the Archipelago litigation and (2) sold the Islan ds to a different party. Grea t Hans argues this ruling was error because the PSA contained a provision, paragraph 5(a)(iii), whi ch effectively extended the closing date for one year so that title claims, such as the Archipelago litigation, could be resolved. LBLIC counters that paragraph 5(a)(i ii) is not controlling and relies on other provisions, paragraphs 5(a)(ii) and (iv), to support it s contention that the PSA termi nated by its own terms when closing did not occur on April 6, 2014. C onsequently, it contends ther e was no contract in effect at the time of the alleged breach in S eptember 2014 when the Islands w ere sold.–8– A successful breach of contract claim requires proof of the fol lowing elements: (1) a valid contract, (2) performance or te ndered performance by the plaint iff, (3) breach of the contract by the defendants, and (4) damages sustained by the plaintiff as a result of that breach. See Petras v.
Criswell , 248 S.W.3d 471, 477 (Tex. App.—Dallas 2008, no pet.). In construing contracts, we must ascertain and give effect to t he parties’ intentions as expressed in the document. Hooks v. Samson Lone Star, Ltd. P’ship , 457 S.W.3d 52, 63 (Tex. 2015). We attempt to harmonize all contractual provisions by a nalyzing the provisions with reference to the whole agreement. Id . We “construe contracts from a utilitarian standpoint bearing in mind the particular business activity sought to be served,” and, when possible and proper, we avoid a “construction which is unreasonable, inequitable, and o ppressive.” Id. (quoting Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex. 1987)). If, through the use of rele vant rules of construction, the contract can be given a definite meaning, we construe it as a matter of law. Id

. at 63–64. Paragraph 5 of the PSA addressed issues related to title insura nce and liens. Under subparagraph (i), the parties ag reed Great Hans would obtain a title commitment for insurance and then notify LBLIC of its objections to any title matters. The remaining provisions provided as follows: (ii) Seller shall have ten (10) business days after its receipt of the Title Objections to determine whether it will cure the Title Ob jections (“Seller’s Response Notice”). If Seller can or will not cure all of Purch aser’s Title Objections other than claims of Prior Owner Parties as hereinafter defined (the “Real Estate Title Objections”), Purchaser shall then have ten (10) business days to notify such Seller of its intention to either (i) terminate this Agreement, in which event, the entire Escrow Deposit shall be returned to Purchaser, or (ii) p roceed to Closing and accept title to Islands subject t o the Real Estate Title Object ions, without any liability or obligation on the part of Seller by reason of such Real Estate Title Objections. Property Taxes and accepted Real Estate Title Obje ctions shall be referred to herein as “Permitted Exceptions”. (iii) . . . Seller shall also use commer cially reasonable efforts to defend against any claims made by any prior owner, mortgagor, c ontract vendee,–9– option holder or any debtor or creditor in the Bankruptcy Case or other party asserting a claim, interest or r ight to purchase the Property ( a “Title Claim”). As used herein, “commercially reasonable efforts” shall include de fending any litigation regarding a Title Cl aim; provided, however, if such matter is not resolved and removed from the Title Commitment by the date that is one ( 1) year from the original Closing Date (“Remediation Date”), Purchaser shall hav e the option to elect, by written notice to Seller within ten (10) business day s of the Remediation Date, to (i) proceed to Closing, subject to such Title Claim wi thout any adjustment to the Purchase Price, in which event Seller shall cause the Li berty Mortgages to be assigned to a designee of Purchaser, or (ii) terminate this Agr eement, in which event Purchaser would receive the release of the entire $250,000 Escr ow Deposit, plus receive the lesser of (“Expense Reimbursement”) (aa) Purchaser’ s documented outof-pocket expenses incurred in t his transaction (including, wit hout limitation, any legal expenses incurred by Purc haser in defending litigation br ought by anyone asserting a Title Claim), or (bb) $50,000. In the event Purcha ser elects option (i) above, Closing shall be ten (10) business days after Purchaser gives notice of such election. If Seller is required to remove a Monetary Lien purs uant to the terms of this Agreement, Seller shall be entitled to postpone the Closin g for a period of thirty (30) days in order to endeavor to remove such Monetary Lien unl ess Purchaser agrees to a longer postponement. (iv) Notwithstanding anything to the cont rary contained herein, if a Seller is unable to eliminate the Title Objections other t han Monetary Liens which Seller is obligated to remove by the Closing Date (as her einafter defined), unless the same are waived by Purchaser, such Seller may, upon prior notice (“Title Cure Notice”) to Purchaser, adjourn the Closing Date for a peri od not to exceed thirty (30) days (inclusive of any adjournment taken pursuant t o (iii) above) (“Title Cure Period”), in order to attempt to eliminate such exceptions . Purchaser may extend the time to cure the Title Objections in Purchaser’s dis cretion by not for more than 30 days without Seller’s approval. In its supplemental motion for summary judgment and in its brie f on appeal, LBLIC argues that subparagraphs (ii) and (iv) govern this case and demonstra te the contract terminated in April 2014. Subparagraph (ii) governed c ertain title objections for which LBLIC either could not or would not cure. LBLIC argues it never agreed to cure the Archi pelago litigation, leaving Great Hans the option to terminate the contract or proceed to closing . LBLIC contends that because Great Hans did not terminate the contract, it necessarily elect ed to proceed to closing. When Great Hans failed to close on April 6, LBLIC contends the contract ex pired by its own terms. We cannot
agree.–10– LBLIC’s argument presumes the Ar chipelago litigation was a “Tit le Objection” for purposes of determining Great Hans’s options when LBLIC decided not to cure. But “claims of Prior Owner Parties” were specifi cally removed from the definit ion of “Title Objection” governed by subparagraph (ii), and it is undisputed that the Archipelago litigation was a claim by a prior owner. So, while subparagraph (ii) clearly put Great Hans to a decision if LBLIC did not agree to cure a title objection, the speci fic title objection at issue h ere was eliminated from its application. Consequently, subparagra ph (ii) does not apply. LBLIC argues that even if it had agreed to cure the Archipelago litigation objection but was unable to do so, subparagraph (iv) gave it, not Great Hans, the option to extend the time to cure, which it never did. But, again, subparagraph (iv) has li mited application. It applies only to title objections, other than mone tary liens, which LBLIC was “o bligated to remove by the Closing Date.” The contract defined “Clos ing Date” as thirty days afte r the feasibility period ended, or April 6. Whether LBLIC was obligated to remove the Archipelago litigation by that date, however, requires consideration of subparagraph (iii). Unlike subparagraphs (ii) and (iv), subparagraph (iii) specific ally addressed “Title Claims,” defines the term, and sets out the seller’s obligation s and the buyer’s corresponding options. The provision obligated LBLIC to use commercially rea sonable efforts to defend a title claim. A title claim was defined as including a claim by a pri or owner or other party asserting a claim, interest, or right to pur chase the property. LBLIC’s ob ligation included defending litigation regarding such a claim, but, if t he matter was not resolved wit hin a year from the original closing date, the buyer could proceed to closing subject to the title c laim or terminate the agreement, receive a release of the entire escrow deposit plus the lesser of purchaser’s out-of-pocket expenses incurred in the transaction or $50,000.–11– Thus, subparagraph (iii) in effect extended the contract for on e year to allow LBLIC to resolve title claims. Here, it is undisputed that the Archipel ago entities made a claim against the property by filing notices of interest which subsequently resul ted in a lawsuit in the U.S. Virgin Islands. That claim triggered LBLIC’s obligation to defend aga inst the claim for up to a year after the original closing date, i.e., the “remediation period.” Giv en the language of the contract, the parties intended the contract to remain in effect during the re mediation period or there would have been no need to provide a term for the buyer to make an electio n to either close or terminate at the end of the year. On appeal, LBLIC does not dispute it had a contractual obligati on to defend against title claims; rather, it argues the provision does not apply because Great Hans failed to invoke it. In particular, LBLIC urges that Gre at Hans had to give “written no tice” and “adjourn” the closing to wait for the one-year period to run. But LBLIC does not identi fy a contractual pr ovision requiring such action on Great Hans’s part and the provision itself conta ins no such demand. Moreover, the evidence shows Great Hans timely notified LBLIC of its obje ctions to title, which included the Archipelago litigation. For the above reasons, we conclude LBLIC’s interpretation of th e contract is not reasonable because neither subparagraph (ii) nor (iv) apply to the circums tances before us. By its plain language, subparagraph (iii) exte nded the contract for up to on e year and essentially provided protection for both the buyer and the seller, giving both an en d date by which (1 ) the seller could end its obligation to defend against title claims and (2) the p urchaser could elect to proceed to closing or terminate the contract . Consequently, the trial cou rt’s determination that the contract terminated on April 6, 2014, ba sed on an application of subpara graphs (ii) and (iv), was error. We sustain Great Hans’s issue related to the trial court’s summary judgment on its breach of contract claim.–12– S PECIFIC P ERFORMANCE Great Hans next argues the trial court erred by granting summar y judgment that denies it specific performance under the contract. LBLIC sought summary j udgment on Great Hans’s request for specific performan ce on the ground that this relief was not available because LBLIC does not own the property. Specific performance will not be decreed where it appears that performance of the contract by the defendant is impossible. Nash v. Conatser , 410 S.W.2d 512, 519 (Tex. App.—Dallas 1966, no writ). Thus, where the defendant does not own the land invo lved in the agreement, he may not be compelled to perform. Id . This is true even though the want of title is due to the def endant’s

own act. O’Neill v. Powell , 470 S.W.2d 775, 779 (Tex. App.—Fort Worth 1971, writ ref’d n. r.e.). Here, the evidence is undisputed that LBLIC does not own the pr operty at issue. Although this is the basis for LBLIC’s summary judgment, Great Hans has not addressed the fact that LBLIC no longer owns the property, ar gued any exception, or provided any analysis as to how it can receive the relief it requests. Because Great Hans has not sho wn reversible error, we overrule this issue.
F RAUD Great Hans next challenges the tr ial court’s summary judgment o n its claims for statutory fraud, common law fraud, and fraud in the inducement, 5 all of which arose out of the contract. Generally, Great Hans complains LBLIC induced it to enter the P SA by falsely representing it owned the property and, once the contract was executed and pend ing, LBLIC represented it was

5 Great Hans also alleged fraudul ent transfer but has not challe nged the trial court’s take- nothing judgment on this claim.–13– attempting to clear title so the PSA could be concluded but ins tead failed to disclo se it had settled the Archipelago li tigation and sold the property to another buy er. 6 In its motion for summary judgment, LBLIC asserted that the ec onomic loss rule barred all fraud claims because Great Hans had not alleged an economic inj ury independent and separate from the economic losses recove rable under breach of contract. Great Hans first argues LBLIC’s ground “turned on an ‘allegatio n’ in the pleading” and therefore should have been cha llenged by special exception, not summary judgment. But LBLIC did specially except to the fra ud claims earlier in the lawsuit and included an exception regarding the economic loss rule. The trial court granted LBLIC’s specia l exceptions and ordered Great Hans to replead by stating “the type of fraud, the misrepresent ations or omissions complained of, who made them and when they were made.” After that, Great Hans amended its pleadings multiple times, once with leave of court. A ccordingly, we conclude this argument is without merit. Great Hans next addresses the substance of the doctrine in a me re seven sentences in its brief. Great Hans broadly asserts the doctrine does not apply to fraud claims but provides only a general discussion that is limited to fraud in the inducement. Within its issue, Great Hans does not consider the application of the doctrine to any specific misrep resentation or omission. The economic loss rule has been described as “one of the most c onfusing doctrines in tort law.” R. Joseph Barton, Note, Drowning in a Sea of Contract: Application of the Economic Loss Rule to Fraud and Negligent Misrepresentation Claims , 41 W M

. & M ARY L. R EV . 1789, 1789 (2000). It provides that when a party’s acts breach a contract and the only alleged injury is economic loss to the subject of th e contract itself, the action sounds in contract alone. Sw. Bell

6 In its brief, Great Hans argues all of its fraud claims togeth er, without identifying with any clarity which claim or element is being addressed and, most importantly, the specific misrepresentation or omissi on that forms the basis for any particular claim. This scatter shot approach has left the Court in the position of sorting through the argument to de termine what issue has actually been raised. Briefs are meant to acquaint the Court with a case’s subject matter. Briefs should not require the Co urt “to connect unrelated dots, hunt down relevant authority, o r speculate as to what exactly it is a party is attempting to argue or what relief it is requesting.” Brazos Elec. Power Coop., Inc. v. Tex. Comm’n on Envt’l Quality , 538 S.W.3d 666, 700 (Tex. App.—El Paso 2017, pet. filed). Neverthe less, after reviewing the third amended counterclaim, Great Han s’s response to the motion for summary judgment, and Great Hans’s brief, it app ears the only allegations properly before us are those noted ab ove.–14– Tel. Co. v. DeLanney , 809 S.W.2d 493, 494–95 (Tex. 1991). Thus, tort damages are g enerally not recoverable unless the plaintiff suffers an injury that is inde pendent and separate from the economic losses recoverable under a breach of contract claim. See Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc. , 960 S.W.2d 41, 45–47 (Tex. 1998); DeLanney , 809 S.W.2d at 494 (analyzing both source of duty and nature of remedy in d etermining claim’s characterization as sounding either in contract or tort). The rule, however, do es not apply to fraudulent inducement claims. See Formosa , 960 S.W.2d at 47. Tort damages are recoverable for fraudulen t inducement irrespective of whether the fra udulent representations are late r subsumed in a contract or whether the plaintiff only suffers an economic loss related to the subj ect matter of the contract. Id .; Esty v. Beal Bank S.S.B. , 298 S.W.3d 280, 302–303 (Tex. App.—Dallas 2009, no pet.). Th us, to the extent Great Hans complains it was induced to enter the PSA by LBLIC’s claim it owned the property, summary judgment would have been improper on this particular al legation. See Formosa , 960 S.W.2d at 47; Esty , 298 S.W.3d at 302–03 Great Hans, however, has not att empted to explain why its claim s for fraud in the performance of the contract (failu res to disclose the Archipela go settlement and the sale to USVIP) are not barred by the economic l oss rule under the particular f acts of this case. We therefore conclude Great Hans failed to e ffectively challenge LBLIC’s gro und that the economic loss rule barred these claims and will not disturb the summary judgment w ith respect to Great Hans’s claims alleging nondisclosure of the Arch ipelago settlement and the sa le to USVIP. See Staton Holdings, Inc. v. Tatum, L.L.C. , 345 S.W.3d 729, 732–33 (Tex. A pp.—Dallas 2011, pet. denied) ( concluding economic loss issue waived when appellant’s brief consisted onl y of abstract discussion of law without explaining why rule barre d claims under facts of case); Adams v. First Nat’l Bank of Bells/Savoy , 154 S.W.3d 859, 875 (Tex. App.—Dallas 2005, no pet.) (“[A] re viewing court will–15– affirm the summary judgment as to a particular claim if an appe llant does not present argument challenging all grounds on whic h summary judgment could have be en granted.”). Although the economic loss rule does not bar Great Hans’s frau d in the inducement claim, assuming that Great Hans raised a fact issue on the claim’s ele ments, the record establishes that the trial court did not err in granting summary judgment on thi s claim for another reason––the affirmative defense of ratification. The elements of ratification are (1) approval by act, word, or conduct, (2) with full knowledge of the facts of the earlier act, (3) with intent to v alidate the earlier act. Neese v. Lyon , 479 S.W.3d 368, 384 (Tex. App.—Dallas 2015, no pet.). A party ratifies an agreement when, after learning of all of the material facts, he confirms or adopts an earlier act that did not then legally bind him and that he could have repudiated. Id. Knowledge or notice to an attorney, acquired during the existence of the attor ney-client relationship and wh ile acting within the scope of his authority, is imputed to the client. Lehrer v. Zwernemann , 14 S.W.3d 775, 778 (Tex. App.— Houston [1st Dist.] 2000, pet. denied). As part of its tradi tional summary judgment , LBLIC presented ev idence that in November 2013, Great Hans’s attorney, Pete r Marullo, requested and recei ved a title commitment from Freedom Abstract on the Islands that showed fee simple title in terest in the property was vested in LLSC, not LBLIC. The title commitment further required an amen dment to the PSA correcting the seller’s name to LLSC. As Great Hans’s lawyer, Marullo’s k nowledge was imputed to Great Hans, meaning that just days aft er execution of the contract, G reat Hans was charged with the knowledge that LLSC held title to the property. See Lehrer , 14 S.W.3d at 778. Several weeks later, Great Hans executed two amendments to the PSA, extending the feasibility and title objection periods. So, while Great Hans may have been unaware that LBLIC did not hold legal title to the property at the time PSA was executed, it was awar e (through its attorney) of that fact–16– only days later and certainly weeks before it executed amendmen ts to the PSA. Given these facts, we conclude LBLIC conclusively established its affirmative defe nse of ratification, and the trial court therefore did not err i n granting summary judgment on thi s claim. Moreover, these same facts establish as a matter of law a lack of reliance on the representation by Great Hans. Both common law and statutory fr aud require that Great Hans show actual and justifiable reliance. Schlumberger Tech. Corp. v. Swanson , 959 S.W.2d 171, 182 (Tex. 1997); Coldwell Banker Whiteside Assocs . v. Ryan Equity Partners, Ltd. , 181 S.W.3d 879, 888 (Tex. App.—Dallas 2006, no pet.). “If the person to whom a fal se representation is made is aware of the truth, it is obvious that he is neither deceived nor def rauded, and therefor e, any loss he may sustain is not traceable to the representation but is self-infl icted.” Bynum v. Signal Life Ins. Co. , 522 S.W.2d 696, 700 (Tex. App.—Dallas 1975, writ ref’d n.r.e.). We overrule Great Hans’s issue challenging the summary judgment on its fraud claims.
C ONSPIRACY Great Hans next contends summary judgment should have been deni ed on its civil conspiracy claim. In its motion for summary judgment, LBLIC as serted that the conspiracy claim failed because there is no underlying tort. Liability for cons piracy is predicated on the commission of an underlying tort. Tilton v. Marshall , 925 S.W.2d 672, 681 (Tex. 1996) (orig. proceeding) (op. on reh’g). Having concluded the trial court did not err in gra nting summary judgment on Great Hans’s fraud claims, there are no underlying tort claims at iss ue. Consequently, the trial court did not err in granting summary judgme nt on this claim. We overrul e the fourth issue.
D ECLARATORY J UDGMENT C LAIMS Finally, Great Hans contends the trial court erred in granting summary judgment declaring as valid and enforceable the limitation of liability and jury w aiver clauses in the PSA. We begin with the limitation of liability clause. Paragraph 18 (b) of the PSA provides:–17– If Seller defaults under this Agreement, Purchaser shall be ent itled to either (1) termination of this Agreement and receive the return of the ent ire $250,000 Escrow Deposit, or (2) enforce specific performance. These shall be P urchaser’s exclusive remedies, unless as a result of Seller’s intentional action, sp ecific performance is unavailable, in which case, in addition to receiving the return of the entire $250,000 Escrow Deposit, Purchaser shall be entitled to receive damages in the amount of $500,000, which shall include any lega l fees or costs of Purcha ser. Great Hans alleged the provision, limiting LBLIC’s liability wh en specific performance was unavailable due to LBLIC’s intentional conduct, is “unconsc ionable, void, and unenforceable as violating public policy.” The t rial court, however, determi ned the provision was reasonable and enforceable. Texas has long recognized the “strongly embedded public policy favoring freedom of
contract.” Bombardier Aerospace Corp. v. SPEP Aircraft Holdings, LLC , No. 17-0578, 2019 WL 406075, at *11 (Tex. Feb. 1, 2019). Absent a compelling reason , courts must respect and enforce the terms of a contract that the parties have freely and volunt arily made. Id . As the Texas Supreme Court has noted: “Freedom of c ontract is a policy of individua l self-determination; individuals can control their destiny and st ructure their business transact ions through agreements with other competent adults of equal bargaining power, absent violation of law or public policy.” Shields Ltd. P’ship v. Bradberry , 526 S.W.3d 471, 482 (Tex. 2017). A damages-limitation clause is a limited warranty that is the basis of the bargain and will limi t recovery to the limited damages.
Bombardier , 2019 WL 40675, at *11. Limitation of liability clauses are g enerally valid and enforceable. Id . at 12. Here, Great Hans’s argument is underpinned by its belief that t he contract was procured by fraud. It argues since “fraud vitiates every transaction taint ed by it,” a “stipulated damage provision in a contract obtaine d by fraud cannot be enforced.” But the supreme court recently rejected a similar argument: “We have never held . . . that fr aud vitiates a limitation-of-liability clause. We must respect and enforce terms of a contract that p arties have freely and voluntarily–18– entered.” Id . at * 12. Moreover, we have concluded that summary judgment w as proper on Great Hans’s fraud claims; therefore, the foundation for its argument no longer exists. The record shows the parties, who were sophisticat ed entities represented by cou nsel in an arms-length transaction, negotiated the PSA over several months and numerous versions an d bargained for the limitation of liability clause to limit the damages recoverable in the eve nt the seller intentionally breached and specific performance was unavailable. We therefore conclud e, as did the trial court, that the clause is valid and enforceable. We also reject Great Hans’s challenge to the trial court’s summ ary judgment on the contractual jury waiver provi sion. This provision is found in Paragraph 20(p) of the PSA:
SELLER AND PURCHASER H EREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR COUNTERCLAIM ARISING IN CONNECTION WITH, OUT OF OR OTHERWISE R ELATING TO THIS AGREEMENT. A party may waive its constitutional right to a jury trial. Co ntractual jury waivers do not violate public policy and are enforceable as long as the waiver is voluntary, knowing, and intelligent, and with full awareness of the legal consequences. See In re Prudential Ins. Co. of
Am. , 148 S.W.3d 124, 132 (Tex. 2004) (orig. proceeding); In re Key Equip. Fin. Inc. 371 S.W.3d 296, 301 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding) . A conspicuous jury waiver provision is “prima facie evid ence of a knowing and voluntary w aiver and shifts the burden to the opposing party to rebut it.” In re Gen. Elec. Capital Corp. , 203 S.W.3d 314, 316 (Tex. 2006) (orig. proceeding) (per curiam). Under the business and commer ce code, conspicuous means “so written, displayed, or presented that a reasonable person again st which it is to operate ought to have noticed it.” T EX

. B US

. & C OM

. C ODE A NN

. § 1.201(b)(10); In re Bank of Am., N.A. , 278 S.W.3d 342, 344 (Tex. 2009) (orig. proceeding). We presume tha t “a party who signs a contract knows its contents.” In re Bank of Am. , 278 S.W.3d at 344.–19– The jury waiver clause here was one of eight provisions on the page. The provisions are single-spaced, set apart by double spacing, and separately numb ered. The jury waiver was contained in a separate paragraph and stood out on the page as the only provision in all capital letters. It was not printed in small type or hidden in lengthy text. The waiver was followed by a provision in which the parties expressly acknowledged that they or their counsel had reviewed and revised the agreement. We conclude the clause was cons picuous and therefore served as prima facie evidence that Great Hans knowingly and voluntaril y waived its right to a jury trial. See In re Gen. Elec. , 203 S.W.3d at 316 (concluding provisi on in capital letters in bold print was prima facie evidence of knowing and voluntary waiver). Although the burden shifted to Great Hans to raise a fact issue, it has directed us to no evidence in rebuttal. To the extent G reat Hans argues the provision is “tainted by fraud,” we again note that we have affirmed the tak e-nothing judgment on Great Hans’s fraud claims. Further, as noted above, the summary judgment ev idence showed the parties were represented by counsel, negotiated the contract over several mo nths, and went through several versions before signi ng the agreement at issue. We conclude th e trial court did not err in granting summary judgment on this claim. We overrule Great Hans’s issue related to the summary judgment on its declaratory judgment claims.–20– C ONCLUSION We reverse the t rial court’s judgment with respect to Great Han ’s breach of contract claim and remand that claim for further proceedings consistent with t his opinion. We affirm the trial court’s judgment in all other respects.

171144F.P05 /Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE–21– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT
GREAT HANS, LLC, Appellant

No. 05-17-01144-CV V.

LIBERTY BANKERS LIFE INSURANCE CO., Appellee On Appeal from the 192nd Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-14-12254. Opinion delivered by Justice Reichek; Justices Whitehill and Molberg participating. In accordance with this Court’s opinion of this date, the judg ment of the trial court is AFFIRMED in part and REVERSED in part.
We REVERSE that portion of the trial court’ s judgment granting summary ju dgment for appellee Liberty Bankers Life Insurance Co. on appellant Great Hans, LLC's breach of contract claim. In all other respects, t he trial court’s judgment is AFFIRMED . We REMAND this cause to the trial court for further proceedings consistent wit h this opinion. It is ORDERED that each party bear its ow n costs of this appeal.
Judgment entered March 15, 2019.