Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10349

Summary Calendar

PRIME INCOME ASSET MANAGEMENT INC,

Plaintiff - Appellant

v.

ONE DALLAS CENTRE ASSOCIATES LP,

Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Texas

3:07-CV-1731

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

After failing to consummate a commercial real estate transaction, Prime

Income Asset Management, Inc. (Prime) sued One Dallas Centre Associates, L.P.

(ODCA) seeking to recover $750,000 in earnest money. Prime asserted various

contract and fraud claims. ODCA moved for summary judgment on all claims,

which the district court granted. Prime appeals. 

United States Court of Appeals

Fifth Circuit

F I L E D

December 23, 2009

Charles R. Fulbruge III

Clerk
No. 09-10349

1

 The district court initially refused to grant summary judgment on the contract claim

because there was a factual dispute as to who had breached the contract. After ODCA filed

a supplement to its motion for summary judgment, the court determined that Prime had failed

to allege damages and granted summary judgment on the contract claim.

2

Prime and ODCA entered a Purchase and Sale Agreement (the

Agreement) for a commercial building in Dallas, Texas. As part of the

Agreement, Prime deposited $750,000 in earnest money in an escrow account.

The parties realized they would be unable to close the sale by the initial closing

date. Thereafter, they executed four amendments to the Agreement, each time

agreeing to extend the closing date and/or the deadline by which Prime was

required to make an additional extension deposit of $1,000,000. As part of the

second such amendment, Prime expressly and irrevocably directed the release

of the initial $750,000 deposit to ODCA. Ultimately, Prime failed to pay the

additional extension deposit. ODCA terminated the Agreement and retained the

$750,000 that Prime had released as part of the second amendment. Prime then

filed the instant suit seeking to recoup the $750,000 based on, inter alia, breach

of contract, misrepresentation, and money had and received theories. ODCA

filed a motion for summary judgment on all of Prime’s claims. The district court

granted ODCA’s motion and entered judgment against Prime on all its claims

for relief.1

We review the district court’s grant of summary judgment de novo.

Ackermann v. Wyeth Pharmaceuticals, 526 F.3d 203, 207 (5th Cir. 2008).

Summary judgment is proper if the movant demonstrates the absence of genuine

issues of material fact and its entitlement to judgment as a matter of law.

Thurman v. Sears, Roebuck & Co., 952 F.2d 128, 131 (5th Cir. 1992). Because

jurisdiction is premised upon diversity and the Agreement involved property

located in Dallas, Texas, we apply Texas substantive law. See Instone Travel

Tech Marine & Offshore v. Int’l Shipping Partners, Inc., 334 F.3d 423, 427 (5th

Cir. 2003).
No. 09-10349

3

Under Texas law, a court interpreting a contract seeks to discern the true

intent of the parties as stated in the contract. Nat’l Union Fire Ins. Co. v. CBI

Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995). “When there is no ambiguity, it

is the court’s duty to give the words used their plain meaning.” Puckett v. U.S.

Fire Ins. Co., 678 S.W.2d 936, 938 (Tex. 1984). The second amendment to the

Agreement contains the critical language:

In consideration for the Agreement by [OCDA] to extend the Date

of Closing, (I) [Prime] hereby expressly and irrevocably directs the

Title Company to release and pay the [$750,000] Initial Deposit to

[OCDA] . . . . [T]he Initial Deposit . . . shall be non-refundable to

[Prime] but shall be applicable to the Purchase Price at closing . . . .

The trial court determined that the terms of the Agreement were unambiguous

with regard to the refundability of the initial deposit. We agree. As an initial

matter, the express terms of the amendment provide that the initial deposit

“shall be non-refundable.” Further, the second amendment’s unambiguous

terms provide that, in consideration for an extension of the closing date, Prime

“expressly and irrevocably directs the title company to release” the initial deposit

to ODCA. Black’s Dictionary defines “express” as “[c]learly and unmistakably

communicated,” and “irrevocable” as “[u]nalterable [or] committed beyond

recall[.]” BLACK’S LAW DICTIONARY (8th ed. 2004). Interpretation of the

language at issue leads to only one reasonable conclusion: in order to extend the

closing date, Prime agreed to irrevocably release the $750,000 deposit to OCDA

and that deposit is non-refundable. See Nat’l Union, 907 S.W.2d at 520.

Under the plain language of the second amendment, the only act required

by ODCA for the deposit to become non-refundable was the extension of the

closing date. When OCDA extended the closing date, the initial deposit was

expressly and irrevocably released to ODCA and thus ceased to be property of

Prime. Prime bargained for an extension of the closing date and once that
No. 09-10349

4

extension was granted, Prime had received its consideration and could no longer

recover its initial deposit.

To establish a breach of contract claim under Texas law, a plaintiff must

prove, inter alia, damages to the plaintiff resulting from that breach. Harris v.

Amer. Protection Ins. Co., 158 S.W.3d 614, 622)23 (Tex. App.—Fort Worth 2005,

no pet.). Because Prime sought only the deposit money as damages for its

contract claim, and Prime is no longer entitled to these funds, Prime failed to

allege all the elements of a breach of contract. The district court was correct to

grant summary judgment on Prime’s contract claim.

Prime argues that this same logic does not doom its “money had and

received” claim because the claim is equitable in nature. Prime asks us to

ignore the express terms of the contract because “in equity and good conscience”

the money belongs to Prime. Although cloaked in the guise of equity, Prime

seeks to reassert its contract claim, arguing that OCDA should return the

deposit because its lack of cooperation in due diligence is to blame for the

collapse of the Agreement. Generally speaking, when a valid, express contract

covers the subject matter of the parties’ dispute, there can be no recovery under

a quasi-contract theory. Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671 (Tex.

2000); TransAm. Natural Gas Corp. v. Finkelstein, 933 S.W.2d 591, 600 (Tex.

App.)San Antonio 1996, writ denied); Lone Star Steel Co. v. Scott, 759 S.W.2d

144, 154 (Tex. App.)Texarkana 1988, writ denied). Parties should be bound by

their express agreements and when a valid agreement already addresses the

matter, recovery under an equitable theory is generally inconsistent with the

express agreement. See TransAm. Natural Gas, 933 S.W.2d at 600. The Texas

Court of Appeals has noted that this rule is particularly appropriate when

sophisticated parties bargain for express contracts. Id. We see no reason to

allow Prime to escape the express language of the second amendment under the
No. 09-10349

 Although the district court decided this issue based on its interpretation of the 2

contract, we are free to affirm on different grounds. See Seneca v. Phillips Petroleum Co., 963

F.2d 762 (5th Cir. 1992) (noting that the court of appeals can affirm on different grounds than

those relied upon by the district court). Because we decide the issue on different grounds, we

express no opinion as to the merits of the district court’s analysis. See Terra Res., Inc. v. Lake

Charles Dredging & Towing Inc., 695 F.2d 828, 832 n.9 (5th Cir. 1983).

 Each of the separate fraud-related claims brought by Prime share in common the 3

requirement that the plaintiff must prove justifiable reliance on the representations made by

the defendant. See TEX. BUS. & COM. CODE § 27.01(a)(1)(B), (a)(2)(D) (statutory fraud);

Ernst & Young, L.L.P. v. Pacific Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001) (fraud);

Haase v. Glazner, 62 S.W.3d 795, 798 (Tex. 2001) (fraudulent inducement); Fed. Land Bank

Ass’n v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991) (negligent misrepresentation); Coldwell

Banker Assocs. v. Ryan Equity Partners Ltd., 181 S.W.3d 879, 888 (Tex. App.–Dallas 2006, no

pet.) (statutory fraud).

5

guise of equity and find no error in the grant of summary judgment on the

money had and received claim.2

Prime also argues that the district court was incorrect to find that its

fraud and negligent misrepresentation claims failed because disclaimers in the

Agreement negated any reliance. Under Texas law, contracting parties may 3

create contractual provisions that disclaim reliance. See Forest Oil Corp. v.

McAllen, 268 S.W.3d 51, 61 (Tex. 2008); Schlumberger Tech. Corp. v. Swanson,

959 S.W.2d 171, 181 (Tex. 1997). “The contract and the circumstances

surrounding its formation determines whether the disclaimer of reliance is

binding.” Schlumberger, 959 S.W.2d at 179–80. The Texas Supreme Court has

found a clear and specific intent to disclaim reliance when “sophisticated parties,

represented by competent legal counsel, included an emphatic particularized

disclaimer of reliance in the contract.” Schlumberger, 959 S.W.2d at 180. 

As the district court noted, this was a multimillion dollar arm’s length

transaction for the sale of a downtown Dallas commercial building between

sophisticated parties, both represented by attorneys. See Forest Oil, 268 S.W.3d

at 60–61; Coastal Bank SSB v. Chase Bank of Texas, N.A., 135 S.W.3d 840, 843

(Tex. App.)Houston 2004). The Agreement between ODCA and Prime contains
No. 09-10349

6

extensive disclaimers in which Prime disclaims reliance on representations

made by ODCA and specifically any reliance on the truth, accuracy, or

completeness of any documents relating to the property. Furthermore, there is

a merger clause which prevents reliance on later oral representations. See

Armstrong v. Am. Home Shield Corp., 333 F.3d 556, 571 (5th Cir. 2003). Given

the disclaimers and taking into account the nature of the transaction and the

totality of the circumstances surrounding the Agreement, we agree with the

district court that the justifiable reliance element common to all of the

fraud-related claims has been negated as a matter of law. See U.S. Quest Ltd. v.

Kimmons, 228 F.3d 399, 403 (5th Cir. 2000); Forest Oil Corp., 268 S.W.3d at

60–61; Schlumberger, 959 S.W.2d at 179–80.

AFFIRMED.