Affirmed, In Part, Reversed and Rendered, In Part, and Majority and Concurring 

Opinions filed December 28, 2012.

In The

Fourteenth Court of Appeals 

NO. 14-11-00125-CV

TEXAS STANDARD OIL & GAS, L.P., GRIMES ENERGY CO., AND 

PETROVAL, INC, Appellants

V.

FRANKEL OFFSHORE ENERGY, INC., Appellee

On Appeal from the 127th District Court

Harris County, Texas

Trial Court Cause No. 2008-55176

CONCURRING O P I N I O N

This case presents what appears to be an issue of first impression under 

Texas law—whether there should be a general prohibition on the enforcement of 

releases of fraudulent-inducement claims based upon alleged misrepresentations
2

contained in the same contract. For reasons explained below, Texas courts should 

impose no such prohibition. Under the unambiguous language of the release at 

issue in this appeal, the releasing party waived all claims for fraud in the 

inducement of the contract containing the release, regardless of whether the alleged 

fraud was expressed in the contract. Because this release is enforceable under 

Texas law, the trial court erred in refusing to enforce it, and this court may sustain 

appellant’s first issue without addressing the legal sufficiency of the evidence 

supporting a finding of fraudulent-inducement based upon a purported

misrepresentation in the contract.

GTP argues that Frankel released all fraudulent-inducement claims.

Appellants Texas Standard Oil & Gas, L.P., Grimes Energy Co., and 

PetroVal, Inc. (collectively, “GTP”) appeal a judgment in favor of Frankel 

Offshore Energy, Inc. (“Frankel”) in this suit arising out of the parties’ failed 

venture for development of oil and gas prospects.

Frankel sued GTP seeking damages for various claims, including breach of 

fiduciary duty. Frankel also sought rescission of a settlement agreement previously 

executed by the parties in which Frankel released all of its claims, except claims 

arising in the future out of the obligations under the agreement (“Settlement 

Agreement”). GTP counterclaimed based upon Frankel’s alleged breach of the 

Settlement Agreement. After a jury returned a verdict which would have resulted 

in no award of damages to Frankel on any claims, including breach of fiduciary 

duty, the trial court ordered that Frankel recover equitable-disgorgement awards 

totaling $4,010,175.06 based upon GTP’s alleged breaches of fiduciary duty. The 

trial court also (1) ordered rescission of the Settlement Agreement based on the 

jury’s finding that GTP fraudulently induced Frankel to execute the agreement; and 
3

(2) concluded that a release of fraudulent-inducement claims in the settlement 

agreement between the parties was unenforceable because the parties were 

fiduciaries.

On appeal, GTP argues that this court should reverse the trial court’s order 

of rescission and the equitable-disgorgement awards, but also requests an award of 

damages in its favor based on an additional jury finding that Frankel breached the 

Settlement Agreement. Under its first issue, GTP asserts that (1) in a release 

provision in the Settlement Agreement (“Release”), Frankel clearly and 

unequivocally agreed to waive all of its claims for fraud in the inducement of the 

agreement (“Fraudulent-Inducement Release”); and (2) under Texas law, this 

release is an enforceable waiver of fraudulent-inducement claims that bars 

Frankel’s entire fraudulent-inducement claim as a matter of law. 

Frankel unambiguously and unequivocally released all claims for fraud in the 

inducement of the Settlement Agreement. 

The Release reads in pertinent part as follows:

[Frankel] . . . does hereby release, acquit and forever discharge 

Grimes, Texas Standard and PetroVal . . . from all existing, future, 

known and unknown claims, demands and causes of action for all 

existing, future, known and unknown damages and remedies, which 

have accrued or may ever accrue to [Frankel] . . . for or on account of 

(i) the claims made by it in the Bankruptcy Proceeding, (ii) any and all 

claims which might relate in any way to such claims, (iii) any and all 

claims which were brought or which could have been brought in the 

Bankruptcy Proceeding or in any other litigation; all of the foregoing 

shall include, but not be limited to, all claims, demands, and causes of 

action of any nature, whether in contract or in tort, or arising under or 

by virtue of any statute or regulation, that are now recognized by law 

or that may be created or recognized in the future by any manner, 

including without limitation, by statute, regulation or judicial 

decision, for past, future, known and unknown personal injuries, 
4

property damages, and all other losses, damages or remedies of any 

kind that are now recognized by law or that may be created or 

recognized in the future, by any manner, including without limitation, 

by statute, regulation or judicial decision, including, but not limited to 

all actual damages, all exemplary and punitive damages, all statutory 

interest or penalties of any kind, fraud in the inducement of this 

Agreement, and pre- and post judgment interest on any and all claims, 

excepting only such claims as may arise in the future out of the 

obligations under this Agreement.1

Under the unambiguous language of this provision Frankel unequivocally released 

all claims for fraud in the inducement of the Settlement Agreement. The sole 

exception to the Release covers “such claims as may arise in the future out of the 

obligations under this Agreement.” Claims that a contracting party was 

fraudulently induced to enter into a contract arise from general obligations imposed 

by law; such claims do not arise from the contract in question. See Formosa 

Plastics Corp. v. Presidio Engineers and Contractors, 960 S.W.2d 41, 46 (Tex. 

1998) (stating that “it is well-established that the legal duty not to fraudulently 

procure a contract is separate and independent from the duties established by the 

contract itself”). Any claim by Frankel that it was fraudulently induced to enter 

into the Settlement Agreement does not arise “in the future [after the execution of 

the Settlement Agreement] out of the obligations under [the Settlement 

Agreement].” See id. 

The only reasonable interpretation of the Fraudulent-Inducement Release is 

that Frankel releases and disclaims all claims that GTP fraudulently induced 

Frankel to enter into the Settlement Agreement, regardless of the nature of the 

alleged fraudulent conduct and regardless of whether the alleged fraud is a failure 

to disclose or a misrepresentation allegedly contained in the language of the 

 

1

(emphasis added)
5

Settlement Agreement itself. The Release does contain an exception that includes 

claims for breach of the Settlement Agreement. Frankel, a sophisticated party, 

knowledgeable in business matters and represented by counsel, negotiated and 

voluntarily agreed to a contract under which it unambiguously released all 

fraudulent-inducement claims, including any based upon alleged 

misrepresentations in the contract. Under the Settlement Agreement, GTP also 

agreed to a substantially similar release, in which GTP released all fraudulentinducement claims, including any based upon an alleged misrepresentation in the 

agreement. These provisions are strong evidence that the parties to the Settlement 

Agreement did not want the right to sue for fraud in the inducement to remain a 

viable option for any party that might later become unsatisfied with the outcome of 

their agreement. 

Under Texas law, contracting parties may disclaim fraudulent inducement 

claims under certain circumstances.

Parties sometimes use contractual language in an attempt to disclaim as a 

matter of law claims by a contracting party that the party was fraudulently induced 

to enter into the contract. In three cases decided over the last fifteen years, the 

Supreme Court of Texas has addressed whether contractual language effected such 

a disclaimer. See Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 

S.W.3d 323, 331–36 (Tex. 2011); Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 

56–61 (Tex. 2008); Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 177–

81 (Tex. 1997). The main issue in this appeal is whether, in the Release, Frankel 

disclaimed as a matter of law all claims that it had that it was fraudulently induced 

to execute the Settlement Agreement. 

The threshold requirement for an effective disclaimer of fraudulentinducement claims is that the contract language be “clear and unequivocal” in its 
6

expression of the parties’ intent either to disclaim reliance or to disclaim 

fraudulent-inducement claims. See Italian Cowboy Partners, 341 S.W.3d at 331–

32 & n.4, 336, 337 n. 8; Forest Oil Corp., 268 S.W.3d at 60; Schlumberger Tech. 

Corp., 959 S.W.2d at 179. In imposing this requirement, the Supreme Court of 

Texas has balanced three competing concerns. First, courts seek to avoid an 

unintentional surrender of fraudulent-inducement claims by a victim of fraud. See 

Italian Cowboy Partners, 341 S.W.3d at 332 (expressing “a clear desire to protect 

parties from unintentionally waiving a claim for fraud”). Second, the law favors 

granting parties the freedom to contract knowing that courts will enforce their 

contracts’ terms, as well as the ability to contractually resolve disputes between 

themselves fully and finally. See id.; Forest Oil, 268 S.W.3d at 58. Third, a party 

should not be permitted to claim fraud when he represented in the parties’ contract 

that he did not rely on a representation because parties who contractually promise 

that they in fact have not relied upon extra-contractual statements should be held to 

their word. Forest Oil Corp., 268 S.W.3d at 60. 

The Supreme Court of Texas has held that language in which a contracting 

party states that the other contracting party has not made any representations or 

promises except as set forth in the contract is not, by itself, sufficient to constitute 

the required clear and unequivocal expression of intent to disclaim reliance or 

fraudulent-inducement claims. See Italian Cowboy Partners, 341 S.W.3d at 333–

36. But, the high court has concluded that this requirement was satisfied by 

language that included an unambiguous waiver of reliance on any statement or 

representation of the opposing parties. See Forest Oil Corp., 268 S.W.3d at 54 n.4, 

56–60; Schlumberger Tech. Corp., 959 S.W.2d at 179–81. The Supreme Court of 

Texas also has stated that waiver-of-reliance language is not required if the parties 

execute “a release that clearly expresses the parties’ intent to waive fraudulent 
7

inducement claims.” Italian Cowboy Partners, 341 S.W.3d 332 n.4 (internal 

quotation marks omitted). See also Schlumberger Tech. Corp., 959 S.W.2d at 181 

(stating that “a release that clearly expresses the parties’ intent to waive fraudulent 

inducement claims” can preclude a claim of fraudulent inducement). 

If the contract language does not contain a “clear and unequivocal” 

expression of the parties’ intent either to disclaim reliance or to disclaim 

fraudulent-inducement claims, then a court will not enforce the disclaimer, and the 

fraudulent-inducement claim is not barred as a matter of law. See Italian Cowboy

Partners, 341 S.W.3d at 337 n. 8; Forest Oil Corp., 268 S.W.3d at 60; 

Schlumberger Tech. Corp., 959 S.W.2d at 179; Allen v. Devon Energy Holdings, 

L.L.C., 367 S.W.3d 355, 382 (Tex. App.—Houston [1st Dist.] 2012, pet. filed) 

(citing Italian Cowboy and stating that clarity requirement is threshold hurdle 

which must be passed for enforcement of disclaimer and that provision lacking 

clear and unequivocal disclaimer will not preclude fraudulent-inducement claim 

regardless of surrounding circumstances). If the contract language contains a 

“clear and unequivocal” expression of the parties’ intent either to disclaim reliance 

or to disclaim fraudulent-inducement claims, then courts determine whether the 

disclaimer should be enforced based upon consideration of the contract and the 

totality of the surrounding circumstances, including (1) whether the terms of the 

contract were negotiated or boilerplate, (2) whether during negotiations the parties 

specifically discussed the issue which became the topic of the subsequent dispute, 

(3) whether the complaining party was represented by counsel, (4) whether the 

parties dealt with each other at arm’s length, and (5) whether the parties were 

knowledgeable in business matters. See Italian Cowboy Partners, 341 S.W.3d at 

337 n. 8; Forest Oil Corp., 268 S.W.3d at 60–61. If the situation involves a “once 

for all” settlement of claims, this may constitute an additional factor in favor of 
8

enforcing the disclaimer. See Italian Cowboy Partners, 341 S.W.3d at 337 n. 8;

Forest Oil Corp., 268 S.W.3d at 58.

The language of the Fraudulent-Inducement Release is clear and unequivocal in 

its expression of the parties’ intent to disclaim fraudulent-inducement claims.

The threshold inquiry for an effective disclaimer of fraudulent-inducement 

claims is whether the contract language is “clear and unequivocal” in its expression 

of the parties’ intent either to disclaim reliance or to disclaim fraudulentinducement claims. See Italian Cowboy Partners, 341 S.W.3d at 331–32 & n.4, 

336, 337 n. 8; Forest Oil Corp., 268 S.W.3d at 60; Schlumberger Tech. Corp., 959 

S.W.2d at 179. The Release does not contain clear and unequivocal language 

expressing Frankel’s intent to disclaim reliance, as did the releases in 

Schlumberger and Forest Oil. See Forest Oil Corp., 268 S.W.3d at 54, n.4; 

Schlumberger Tech. Corp., 959 S.W.2d at 180. But, the Supreme Court of Texas 

has stated in judicial dicta that parties also may disclaim fraudulent-inducement 

claims through clear and unequivocal language that expresses the parties’ intent to 

disclaim fraudulent-inducement claims, without any waiver-of-reliance language. 

See Italian Cowboy Partners, 341 S.W.3d 332 n.4; Schlumberger Tech. Corp., 959 

S.W.2d at 181. 

The release in today’s case is broader than a disclaimer of reliance because 

reliance is only one element of a fraudulent-inducement claim. See Formosa 

Plastics Corp. USA, 960 S.W.2d at 47–48. A clause that specifically waives any 

claim for fraudulent inducement is clearer than a waiver-of-reliance clause because 

while the purpose of a waiver-of-reliance clause is to head off a suit for fraud, such 

a clause does not say so expressly but instead uses the innocuous term “reliance,” 

the significance of which may not be understood or appreciated by the disclaiming 

party. See Allen, 367 S.W.3d at 380 n. 23. The Release contains language clearly 
9

and unequivocally expressing Frankel’s intent to disclaim all claims that it was 

fraudulently induced to enter into the Settlement Agreement.

The other factors support enforcement of the Fraudulent-Inducement Release.

As to the other factors, Frankel does not dispute that the terms of the 

Settlement Agreement were negotiated, Frankel was represented by its own 

counsel during these negotiations, and the parties were knowledgeable about 

business matters. There is nothing boilerplate about the Settlement Agreement; it 

clearly is unique to the parties’ relationship and dispute. Nonetheless, Frankel 

maintains that during negotiations the parties did not specifically discuss the issue 

which has become the topic of the subsequent dispute and that the parties did not 

deal with each other at arm’s length.

Frankel contends that, while negotiating the Settlement Agreement, the 

parties did not “discuss the issue that has become the topic of” the present dispute 

because that topic is the Probe transaction and it is precisely this information that 

GTP concealed from Frankel in order to induce the Settlement Agreement. 

However, the Forest Oil court did not state that, to satisfy this factor, the parties 

must have discussed the exact grounds that form the basis of the later dispute. See

Forest Oil Corp., 268 S.W.3d at 58, 60. Although Frankel was unaware of the 

Probe transaction when it executed the Settlement Agreement, an “issue” in both 

the earlier and present disputes is whether Frankel had an interest in various 

prospects. That the parties discussed an issue central to both the earlier and present

disputes is compelling evidence that during negotiations of the Settlement 

Agreement the parties specifically discussed the issue which became the topic of 

the later dispute. See id.
10

The trial court concluded that the Fraudulent-Inducement Release was 

unenforceable as a matter of law because the parties were fiduciaries and thus did 

not “deal[] with each other in an arm’s length transaction.” The trial court 

concluded that such a provision is enforceable only if the parties first contractually 

disavow a fiduciary relationship.

The parties dispute whether they ever had a fiduciary relationship in the first 

place. But, even presuming for the sake of discussion that the parties were 

fiduciaries and still owed each other a fiduciary duty when they executed the 

Settlement Agreement, this relationship does not necessarily preclude enforcement 

of the Fraudulent-Inducement Release.2 Parties owing each other a fiduciary duty 

may wish to finally end their disputes. Thus, their expressed intent to ensure 

finality by means of a fraudulent-inducement release or disclaimer of reliance, as 

well as their freedom to contract, should be accorded the same respect as the intent 

of other parties. See id. 

As mentioned above, for a disclaimer to be enforced, the contract language 

must be “clear and unequivocal” in its expression of the parties’ intent either to 

disclaim reliance or to disclaim fraudulent-inducement claims. See Italian Cowboy

Partners, 341 S.W.3d at 331–32 & n.4, 336, 337 n. 8; Forest Oil Corp., 268 

S.W.3d at 60; Schlumberger Tech. Corp., 959 S.W.2d at 179. Beyond this 

requirement, the other considerations regarding the circumstances surrounding 

contract formation are factors, rather than prerequisites, for enforceability of a 

disclaimer. See Forest Oil, 268 S.W.3d at 60; Allen, 367 S.W.3d at 384. The 

negotiation of a fraudulent-inducement disclaimer between fiduciaries might bear 

aspects of an arm’s length transaction under certain circumstances. A disclaimer 

 

2 There is no need in this appeal to address whether GTP owed Frankel a fiduciary duty at any time. 
11

of fraudulent-inducement claims between fiduciaries should not be deemed per se

unenforceable simply because the fiduciaries owe each other a duty to disclose. 

Thus, if fiduciaries are to be allowed to ensure finality to their disputes under 

certain circumstances, the relevant inquiry should be whether the existence of a

fiduciary relationship under these circumstances prevented Frankel from bindingly 

waiving its claim that GTP violated the duty to disclose and induced Frankel to 

enter into the Settlement Agreement.

Even presuming that the Settlement Agreement was not completely an arm’s 

length transaction because the parties were still fiduciaries when they negotiated 

and executed the agreement, the relevant factors support enforceability of the 

Fraudulent-Inducement Release. The terms of the Settlement Agreement were 

freely negotiated and were not boilerplate. During negotiations these sophisticated 

parties, represented by their respective legal counsel, specifically discussed the 

issue that became the topic of the subsequent dispute. The parties were 

knowledgeable in business matters, and they structured the agreement in 

accordance with their considered objectives in allocating risks. These facts show 

that Frankel’s ability to understand and meaningfully agree to the FraudulentInducement Release was not inhibited due to the fiduciary relationship. Though 

Frankel was unaware during settlement negotiations of the information concealed 

or not disclosed by GTP, the parties discussed the subject about which GTP 

concealed or failed to disclose information—FGP, LLC prospects. In the 

Settlement Agreement the parties noted their dispute over whether Frankel had an 

interest in certain prospects. Frankel relinquished an interest in certain prospects, 

and the parties terminated their relationship. 
12

In addition, the parties were adverse litigants when they executed the 

Settlement Agreement. This litigation context, considered in light of Frankel’s 

business acumen and representation by counsel, indicates Frankel understood that 

GTP was protecting its own interests by negotiating the inclusion of the 

Fraudulent-Inducement Release and that Frankel needed to evaluate for itself 

whether the provision was in its best interest. In addition, GTP also released all of 

its claims against Frankel for fraud in the inducement of the Settlement Agreement. 

And, significantly, the Settlement Agreement terminated the parties’ relationship. 

See Italian Cowboy Partners, 341 S.W.3d at 337 n.8; Forest Oil Corp., 268 

S.W.3d at 58. 

The Settlement Agreement, the factors mentioned by the Supreme Court of 

Texas, and the totality of the surrounding circumstances all lead to the conclusion 

that this court should enforce the Fraudulent-Inducement Release, under which 

Frankel waives all of its claims for fraudulent inducement of the Settlement 

Agreement, including claims based upon a misrepresentation allegedly contained 

in the Settlement Agreement.

An Agreement to waive fraudulent-inducement claims based upon alleged 

representations in the same contract should be enforceable under the same 

standards as waivers of extra-contractual fraud.

The parties have not cited, and research has not revealed, any Texas 

authority addressing whether a fraudulent-inducement release or disclaimer of 

reliance is enforceable if the alleged fraud is based upon an alleged 

misrepresentation in the contract itself. Frankel asserts that the Fraudulent-
13

Inducement Release cannot be used to disclaim a fraudulent-inducement claim 

based upon an alleged misrepresentation contained in the Settlement Agreement.3 

Whether Texas courts should enforce the parties’ agreement to disclaim 

fraudulent-inducement claims based upon an alleged misrepresentation contained 

in the Settlement Agreement raises the issue of what balance should be struck 

between Texas’s public policy against fraud and Texas’s fundamental public 

policy in favor of a broad freedom of contract. See Nafta Traders, Inc. v. Quinn, 

339 S.W.3d 84, 95 (Tex. 2011) (stating that “[a]s a fundamental matter, Texas law 

recognizes and protects a broad freedom of contract”); Schlumberger Tech. Corp.,

959 S.W.2d at 178–80; Abry Partners, L.P. v. F&W Acquisition LLC, 891 A.2d 

1032, 1035–36 (Del. Ch. 2006). In Schlumberger, the jury found that the 

defendant had actual awareness of the falsity of its misrepresentation that allegedly 

induced the plaintiffs to execute a release, and our high court presumed that the 

defendant induced the plaintiffs to execute the release by a misrepresentation that it 

knew was false. See Schlumberger Tech. Corp., 959 S.W.2d at 175, 178. 

Nonetheless, the high court held that the waiver-of-reliance provision negated 

fraudulent inducement as a matter of law, even if the defendant knew that its 

representation was false. See id. at 178–82. This precedent shows that Texas 

balances the public policy interests more in favor of freedom of contract. See id.

Frankel cites Delaware law and suggests Texas should follow Delaware on

this issue. See Abry Partners, L.P., 891 A.2d at 1035–36, 1055–64 (concluding 

that Delaware law does not allow even sophisticated contracting parties, 

 

3

Frankel argues that the Fraudulent-Inducement Release cannot be read to disclaim fraudulent 

inducement based upon a misrepresentation embodied in the Settlement Agreement and that the jury’s 

fraudulent-inducement finding could have been based upon such a misrepresentation. Frankel thus asserts 

that, due to GTP’s failure to challenge the legal sufficiency of the jury’s fraudulent-inducement finding, 

the Fraudulent-Inducement Release cannot provide a basis for disregarding that jury finding, even if the 

Fraudulent-Inducement Release may be enforced to bar fraudulent-inducement claims based upon extracontractual fraud. 
14

represented by counsel, to limit or eliminate another contracting party’s fraudulentinducement claim based upon an alleged misrepresentation contained in the 

contract itself). But, Delaware has its own public policy, one that emphasizes 

freedom of contract less. See id. Under Delaware law, sophisticated contracting 

parties who negotiate the terms of their contract at arm’s length while represented 

by counsel lack the freedom to agree to limit the remedy, cap the damages, or 

disclaim altogether a fraudulent-inducement claim, if the claim is based upon a 

purported misrepresentation allegedly made with knowledge of its falsity. See 

Overdrive, Inc. v. Baker & Taylor, Inc., No. 5835-CC, 2011 WL 2448209, at *6 

(Del. Ch. Jun. 17, 2011); Abry Partners, L.P., 891 A.2d at 1055–64. But, under 

Texas law, such parties generally have the freedom to waive reliance or fraudulentinducement claims based upon a purported misrepresentation allegedly made with 

knowledge of its falsity. See Schlumberger Tech. Corp., 959 S.W.2d at 175, 178–

82. Thus, our state’s public policy gives greater freedom of contract to 

sophisticated businesses to bargain for provisions waiving fraudulent-inducement 

claims. See id.; Overdrive, Inc., 2011 WL 2448209, at *6; Abry Partners, L.P., 

891 A.2d at 1055–64. Thus, Frankel’s reliance on Delaware law is less persuasive 

in light of Delaware’s differing public policy.

Frankel also cites a case decided by the Delaware Chancery Court applying 

New York law. See Xu v. Heckmann Corp., No. 4637-CC, 2009 WL 3440004, at 

*11 (Del. Ch. Oct. 26, 2009). In that case, the court stated in a conclusory manner 

that a waiver-of-reliance provision cannot bar fraudulent-inducement claims based 

upon an alleged misrepresentation contained in the contract. See id. The Xu court 

did not address today’s scenario in which the contractual language expressly 

waives fraudulent-inducement claims. See id. Nor did the Xu court cite legal 
15

authority for this proposition or analyze the public policy interests involved. See 

id.

In deciding this issue under Texas law, courts should honor Texas’s strong 

public policy in favor of broad freedom of contract; courts should respect the 

considered choice of sophisticated players in the marketplace to bargain for 

provisions waiving fraudulent-inducement claims, to put a price on such 

provisions, and to make their own choices about the risks they should bear. The 

Texas Legislature has not prohibited enforcement of agreements in which parties 

disclaim fraudulent-inducement claims based upon an alleged misrepresentation 

contained in the contract, and Texas courts should not prohibit enforcement of all 

such agreements under the common law; rather, Texas courts should enforce such 

disclaimers if they pass muster under the general analysis for such disclaimers, as 

discussed above. Doing so promotes freedom-of-contract values. 

Conclusion

Texas courts should not impose a general ban on the enforcement of releases 

of fraudulent-inducement claims that are based upon an alleged misrepresentation 

contained in the same contract. Sophisticated parties should be free to define their 

rights and to allocate risks of their business transactions. By enforcing clear and 

unequivocal disclaimers of fraudulent-inducement claims, including those based 

upon alleged misrepresentations contained in the contract, Texas courts not only 

honor important freedom-of-contract principles but also enhance the certainty and 

predictability that is so vital to contractual relationships.

Under the unambiguous language of the Fraudulent-Inducement Release, 

Frankel unequivocally waived all claims for fraud in the inducement of the 

Settlement Agreement, regardless of whether the alleged fraud was expressed in 
16

the contract.4 Because this release is enforceable under the Schlumberger, Forest 

Oil, Italian Cowboy trilogy of cases, the trial court erred in refusing to enforce it 

and in granting rescission of the Settlement Agreement, which contained a release 

of Frankel’s breach-of-fiduciary-duty claim. Accordingly, I concur in the court’s 

judgment, but I respectfully decline to join the majority opinion.

/s/ Kem Thompson Frost

Justice

Panel consists of Justices Frost, Seymore, and Boyce. (Seymore, J., majority)

 

4 Therefore, it is not necessary for this court to address the legal sufficiency of the evidence 

supporting a finding of fraudulent-inducement based upon a purported misrepresentation 

allegedly contained in the Settlement Agreement.