their
traditional motion for summary judgment, the Celotex Parties asserted that the
following waiver-of-reliance and as-is language in the Contract and the deed
negates reliance by Warehouse Associates as a matter of law:
OTHER THAN THE WARRANTIES OF TITLE CONTAINED IN THE
DEED, PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT MADE, DOES NOT MAKE
AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES,
COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER,
WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS
TO, CONCERNING OR WITH RESPECT TO (A) THE NATURE, QUALITY OR CONDITION OF THE
PROPERTY, INCLUDING WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (B) THE
INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR
ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON, (D) THE
COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES,
ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY. . .
(E) THE HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF
THE PROPERTY, OR (F) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY, AND
SPECIFICALLY THAT SELLER HAS NOT MADE, AND DOES NOT MAKE AND SPECIFICALLY
DISCLAIMS ANY REPRESENTATIONS REGARDING SOLID WASTE, AS DEFINED BY THE U.S.
ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40 C.F.R., PART 261, OR THE
DISPOSAL OR EXISTENCE, IN OR ON THE PROPERTY, OF ANY HAZARDOUS SUBSTANCE, AS
DEFINED BY THE COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY
ACT OF 1980, AS AMENDED, AND APPLICABLE STATE LAWS, AND REGULATIONS PROMULGATED
THEREUNDER. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE
PROPERTY, PURCHASER IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY
AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY THE SELLER. PURCHASER FURTHER ACKNOWLEDGES AND AGREES
THAT ANY IN FORMATION [sic] PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE
PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE
ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION. PURCHASER FURTHER ACKNOWLEDGES AND AGREES
THAT THE SALE OF THE PROPERTY AT CLOSING SHALL BE MADE ON AN AAS IS, WHERE IS@
CONDITION AND BASIS AWITH ALL FAULTS[.]@
(hereinafter the AContract Language@).
Warehouse Associates asserts the summary-judgment evidence raises a
genuine issue of material fact as to the two Prudential exceptions (fraudulent-inducement and
impairment-of-inspection) to the enforceability of this Contract Language. As discussed above, the existence of fact
issues as to either one of these Prudential exceptions would preclude
summary judgment based on the Contract Language. See Geodyne Energy Income Prod. P=ship I-E, 161 S.W.3d at 487, 490 & n.32; Schlumberger
Tech. Corp., 959 S.W.2d at 181; Prudential Ins. Co. of Am., 896
S.W.2d at 162.
1. Fraudulent Inducement
Warehouse Associates does not
complain of fraudulent inducement as to the
presence of asbestos in the building materials used in the structures
that were demolished and removed by Celotex.
Warehouse Associates asserts that the abatement of asbestos in these
structures did not cause them concern because