TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00411-CV
PBAC 507 Holdings, LLC, Appellant
v.
Broadview Properties, LLC, Appellee
FROM THE 200TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-21-006524, THE HONORABLE JAN SOIFER, JUDGE PRESIDING
M E M O RAN D U M O PI N I O N
PBAC 507 Holdings, LLC appeals from the trial court’s order granting appellee
Broadview Properties, LLC’s Rule 91a motion to dismiss and dismissing all of PBAC’s claims
against Broadview. Furthermore, PBAC contends that if we reverse the trial court’s order granting
Broadview’s Rule 91a motion, the trial court’s subsequent orders that award Broadview attorneys’
fees in connection with its Rule 91a motion and grant Broadview’s motion for summary judgment
on its indemnification counterclaim and award it $202,538 in attorneys’ fees must also be reversed.
For the reasons explained below, we affirm the trial court’s judgment. BACKGROUND 1
The parties’ dispute arises out of a real-estate transaction that began between PBAC
and another party, ESA P Portfolio, LLC.2 ESA owned and operated a hotel located at 507 South
1st Street, Austin, Texas (“Austin Property”). After ESA had entered into an agreement to sell the
hotel (and other properties not at issue in this case) to 3423 Holdings, LLC, an entity not formally
affiliated with PBAC, 3423 Holdings assigned the right to purchase the hotel to PBAC on June 23,
2021. Subsequently, PBAC requested five separate extensions of the closing date for various
reasons, all of which were granted by ESA. On October 5, 2021, ESA and PBAC entered into the
“Seventh Amendment to Agreement of Purchase and Sale,” which set the closing date for
October 29, 2021. PBAC alleges that ESA represented to PBAC “that it would not extend closing
beyond October 29, 2021 under any circumstance.”
PBAC further alleges that although it was ready, willing, and able to close on
October 29, 2021, just a few days before it was set to close, it learned that ESA had wrongfully
closed “bank accounts that were set up for [PBAC’s] use in order to continue operating” the hotel
after the sale, thus making it impossible for PBAC to close on the set date. PBAC alleges that it
“repeatedly implored ESA to extend the closing,” but ESA refused to do so. PBAC also alleges
that ESA subsequently represented to PBAC that unless the closing occurred on October 29, 2021,
1 The facts contained in this section are taken from PBAC’s Second Amended Original Petition (its live pleading) and the exhibits attached to it, except where noted. 2 Both Broadview and ESA were defendants in the underlying lawsuit, but the trial court granted ESA’s motion to sever PBAC’s claims against it from the claims against Broadview. After the trial court granted a final judgment in the severed cause number, PBAC appealed the judgment in favor of ESA, which was docketed in this Court as cause number 03-23-00099-CV. The Court is issuing its opinion in that case contemporaneously with this opinion. 2 ESA would not sell the Austin Property to anyone because one of ESA’s investors had issued a
moratorium against further hotel sales “for the time being.”
Because none of the relevant agreements obligated ESA to further extend the
closing, PBAC would lose its $2,050,000 in earnest money if the transaction failed to close on
October 29, 2021. Instead, PBAC, ESA, and Broadview, executed an Amendment and
Termination Agreement on October 29, 2021 (“Termination Agreement”). The Termination
Agreement recites that “PBAC desires to assigns [sic] its right to purchase the Austin Property . . .
to Broadview,” and that “[n]otwithstanding anything contained herein to the contrary, Broadview
has agreed to purchase the Austin Property . . . , and [ESA] has entered into this Agreement, solely
as an accommodation to and at the request of PBAC.”
As part of the Termination Agreement, PBAC assigned to Broadview its right to
purchase the property in exchange for a $500,000 “Consideration and Release Fee.” In addition,
ESA consented to PBAC’s assignment to Broadview of PBAC’s right to purchase the Austin
Property, and PBAC consented to ESA and Broadview’s entering into a new contract for ESA’s
sale of the Austin Property to Broadview. ESA also agreed to return PBAC’s $2,050,000 earnest
money. PBAC also provided broad releases to ESA and Broadview for all claims and agreed to
indemnify them for any claims relating to the original purchase agreement, the Termination
Agreement, the new contract between ESA and Broadview, and “any other agreement,
arrangement, or understanding alleged to have been made by any of [PBAC, ESA,
and Broadview].”
Two business days later (and one day after receiving its money), on November 2,
PBAC sent formal notice to ESA and Broadview that it had executed the Termination Agreement
based on the allegedly fraudulent misrepresentation that Broadview would close on the Austin
3 Property on the same day that the Termination Agreement was signed, October 29. In addition,
PBAC asserted in the notice letter that ESA failed to perform certain “condition precedent
prerequisites to closing on the Property pursuant to Section 9.1 of the agreement,” including “the
requirement that certain banking accounts be available and other requirements set forth in the
agreement.” PBAC stated in the letter that if ESA had disclosed these failures, PBAC would have
invoked its contractual rights to provide notice and make a demand for cure, and the closing date
would have been automatically extended for at least five days in accordance with the purchase
agreement’s cure provisions. 3 PBAC stated that it sought specific performance and informed ESA
and Broadview that unless they agreed to immediately sell the Austin Property to PBAC, PBAC
would file a lis pendens and lawsuit. The next day, PBAC sent a second letter to ESA, providing
formal notice that ESA had failed to perform certain conditions precedent and demanding that ESA
cure its failure to perform within five days; it further informed ESA that PBAC was ready, willing,
and able to close the transaction immediately and that it was willing to waive ESA’s defaults if
ESA contended that its failure to satisfy its closing obligations was not curable. That same day,
PBAC filed a lawsuit against ESA and Broadview and a notice of lis pendens against the Austin
Property in the Travis County real property records.
PBAC’s live petition alleges nine claims against Broadview, numbered 3-11 in the
petition (PBAC asserts claims 1 and 2 against only ESA): (3) declaratory relief, (4) repudiation
and rescission of Termination Agreement, (5) real-estate fraud, (6) statutory fraud, (7) common-
3 Among other things, Section 9.1 of the purchase agreement provided that if ESA failed to comply with any condition in the agreement for the benefit of PBAC before closing, and if the condition were curable, ESA would have five calendar days after written notice from PBAC to cure. The five-day period would automatically extend the closing date to the expiration of the five-day period.
4 law fraud, (8) fraudulent and negligent misrepresentations, (9) conspiracy, (10) tortious
interference, and (11) disgorgement.4 Broadview answered; denied all allegations; asserted
affirmative defenses; moved for sanctions under Texas Rule of Civil Procedure 13; pleaded
counterclaims against PBAC for fraud and fraud in the inducement, breach of contract based on
the Termination Agreement, and tortious interference with Broadview’s contract with ESA; and
sought recovery of its attorneys’ fees.
ESA filed a motion to expunge the notice of lis pendens. Broadview joined ESA’s
motion and filed a supporting brief. The trial court granted the motion to expunge the notice of lis
pendens because PBAC’s “lawsuit does not contain a real property claim, or, to the extent that it
could be read to, [PBAC] failed to establish by a preponderance of the evidence the probable
validity of any real property claim.” Broadview subsequently filed a Rule 91a motion to dismiss,
asserting that all of PBAC’s claims had no basis in law or fact, or both, depending on the claim.
ESA also filed a separate Rule 91a motion to dismiss.
After conducting separate hearings on Broadview’s and ESA’s Rule 91a motions,
on May 9, 2022, the trial court granted both Broadview’s and ESA’s motions in the same order.
The trial court later granted Broadview’s motion for a Rule 91a attorneys’ fees award and its
motion for summary judgment on its counterclaim for indemnification. In addition, as previously
noted, the trial court granted ESA’s motion to sever PBAC’s claims against it from the claims
against Broadview. In the final judgment issued in favor of Broadview in the original cause
4 In its original and first amended original petition, PBAC had not alleged negligent misrepresentation. In its live petition, it added additional factual allegations that (1) it learned a few days before the sale was set to close about ESA’s closure of the operating bank accounts, and (2) if ESA had disclosed its failure to perform other (unspecified) requirements set forth in the agreement, PBAC would have invoked its right to provide notice and demand for cure, automatically extending the transaction’s closing date for at least five days. 5 number on April 18, 2023, the trial court ordered that Broadview shall recover a total award of
attorneys’ fees in the amount of $202,538.74 plus interest from PBAC, with additional conditional
fees awarded to Broadview in the event of an unsuccessful appeal by PBAC, and that PBAC take
nothing on its claims against Broadview. This appeal followed.
STANDARD OF REVIEW & APPLICABLE LAW
Titled “Dismissal of Baseless Causes of Action,” Rule 91a of the Texas Rules of
Civil Procedure reads in relevant part:
[A] party may move to dismiss a cause of action on the grounds that it has no basis in law or fact. A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.
Tex R. Civ. P. 91a.1. Rule 91a states that the trial court “may not consider evidence in ruling on
the motion and must decide the motion based solely on the pleading of the cause of action, together
with any pleading exhibits permitted by Rule 59.” Id. R. 91a.6. These include “[n]otes, accounts,
bonds, mortgages, records, and all other written instruments, constituting, in whole or in part, the
claim sued on, or the matter set up in defense . . . .” Id. R. 59.
We review the trial court’s ruling on a Rule 91a motion to dismiss de novo “because
the availability of a remedy under the facts alleged is a question of law and the rule’s factual-
plausibility standard is akin to a legal-sufficiency review.” City of Dallas v. Sanchez, 494 S.W.3d
722, 724 (Tex. 2016) (per curiam) (citing Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex. App.—
Houston [14th Dist.] 2014, pet. denied); also citing cf. Marsh USA Inc. v. Cook, 354 S.W.3d 764,
768 (Tex. 2011) (application of law to undisputed facts is reviewed de novo); City of Keller v.
6 Wilson, 168 S.W.3d 802, 827 (Tex. 2005) (“[L]egal-sufficiency review in the proper light must
credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless
reasonable jurors could not.”)). We apply the Texas fair-notice pleading standard to determine
whether the allegations of the petition are sufficient to allege a cause of action. In re Butt, 495
S.W.3d 455, 461 (Tex. App.––Corpus Christi–Edinburg 2016, orig. proceeding); see Roark v.
Allen, 633 S.W.2d 804, 810 (Tex. 1982) (“A petition is sufficient if it gives fair and adequate notice
of the facts upon which the pleader bases his claim.”). In conducting our review, we “construe the
pleadings liberally in favor of the plaintiff, look to the pleader’s intent, and accept as true the
factual allegations in the pleadings to determine if the cause of action has a basis in law or fact.”
In re Butt, 495 S.W.3d at 463; Koenig v. Blaylock, 497 S.W.3d 595, 599 (Tex. App.—Austin 2016,
no pet.); Wooley, 447 S.W.3d at 76. We need not accept as true any of the pleader’s legal
conclusions. See Stone v. Randolph-Brooks Fed. Credit Union, No. 03-21-00422-CV, 2023 WL
2394297, at *2 (Tex. App.—Austin Mar. 8, 2023, pet. denied) (mem. op.). As stated above, the
no-basis-in-fact prong of Rule 91a relates to the believability of the facts alleged. See Davis v.
Homeowners of Am. Ins. Co., --- S.W.3d ---, No. 05-21-00092-CV, 2023 WL 3735115, at *2 (Tex.
App.––Dallas May 31, 2023, no pet.). For the no-basis-in-law prong, Texas courts typically find
that dismissal is appropriate in two circumstances: (1) where the plaintiff fails to plead a legally
cognizable cause of action or (2) where the petition alleges facts that defeat the plaintiff’s own
claims. Id. at *4.
ANALYSIS
On appeal, PBAC challenges the dismissal of its claims in three issues. In its first
two issues, it argues that the trial court erred in granting Broadview’s Rule 91a Motion to Dismiss
7 for two reasons: (1) the trial court erroneously considered ESA’s Rule 91a motion to dismiss in
deciding Broadview’s Rule 91a motion to dismiss; and (2) PBAC’s Second Amended Original
Petition, which it filed after Broadview filed its Rule 91a motion to dismiss, addressed the pleading
deficiencies complained of in the motion and sufficiently alleged a legal and factual basis for its
claims. In its third issue, PBAC asserts that if we reverse the trial court’s order granting the motion
to dismiss, we must also reverse its orders awarding attorneys’ fees to Broadview. We address
each issue in turn.
I. The trial court did not erroneously consider extrinsic evidence in deciding Broadview’s Rule 91a Motion to Dismiss.
In its first issue, PBAC argues that because the trial court granted ESA’s and
Broadview’s motions to dismiss in the same order and referred to them collectively as “the
Motions” when stating that they should be granted, the trial court improperly considered ESA’s
separate Rule 91a motion when deciding Broadview’s motion. Our examination of the record
reveals no indication that the trial court took such action. Nothing in the order indicates that the
trial court considered ESA’s motion when deciding Broadview’s motion, or vice versa. The record
contains two separate notices of hearing for the motions, one for Broadview’s motion on
February 24, 2022, and one for ESA’s motion on March 1, 2022. The order confirms that the court
“heard and considered” the motions on those two different dates. The court separately addressed
each motion in the order, stating that each motion was granted in its entirety. PBAC has not pointed
to any arguments in ESA’s motion that were not made by Broadview but that the trial court would
have necessarily considered to grant Broadview’s motion. And, as Broadview notes, PBAC
pleaded nine identical causes of action against it and ESA, referring to them as “Defendants”
without differentiation in the allegations supporting those causes of action. Thus, it is not
8 surprising that both Broadview and ESA moved to dismiss the claims against them on substantially
similar grounds, even though represented by separate counsel. 5 We conclude that PBAC has not
established that the trial court considered ESA’s motion when deciding Broadview’s motion.
Moreover, even if the trial court had considered ESA’s legal analysis of PBAC’s
claims when deciding Broadview’s motion, PBAC has not cited any authority that supports its
assertion that the trial court would have erred by doing so. 6 Rule 91a provides that “the court may
not consider evidence in ruling on the motion and must decide the motion based solely on the
pleading of the cause of action.” Tex. R. Civ. P. 91a.6 (emphasis added). The Texas Supreme
Court has explained that the Rule “limits the scope of a court’s factual, but not legal inquiry,”
limiting the factual inquiry to the plaintiff’s pleadings, but not the legal inquiry. Bethel v. Quilling,
Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 655-56 (Tex. 2020). For example, the
trial court can look outside the plaintiff’s pleadings to consider the legal theories and arguments
presented in a Rule 91a motion or a hearing on the motion. Id. at 655 (“The rule does not limit the
universe of legal theories by which the movant may show that the claimant is not entitled to relief
based on the facts as alleged.”). We decline to conclude on this record that any consideration by
the trial court of legal arguments raised in ESA’s motion to dismiss when deciding Broadview’s
motion to dismiss would constitute reversible error. We overrule PBAC’s first issue.
5 ESA’s motion to dismiss is not included in the record for this appeal. Thus, we do not consider the arguments presented in it in our analysis of the trial court’s grant of Broadview’s motion. However, the Court reviewed ESA’s motion in connection with its disposition of ESA’s appeal. See Tex. R. Evid. 201 (allowing court to take judicial notice of its own records). We note only that the ESA motion was filed in the trial court and contains similar arguments to Broadview’s motion. 6 PBAC does not argue that ESA’s motion asserted any facts not contained in PBAC’s pleadings. 9 II. PBAC’s Second Amended Original Petition did not sufficiently allege a legal or factual basis for its fraud claims.
In its second issue, PBAC argues that the causes of action alleged in its live pleading
at the time of the hearing on ESA’s motion have a basis in law and fact. When Broadview filed its
Rule 91a motion, PBAC’s First Amended Original Petition was the live pleading. Seven days prior
to the hearing, PBAC filed its current live petition, its Second Amended Original Petition, which
contained additional factual allegations to support its claims. Although Broadview had the option
under Rule 91a.5(b) to withdraw or amend its motion, it chose not to do so and continued with its
initial motion.
Broadview argued in its Rule 91a motion to dismiss:
[T]he gravamen of [PBAC’s] entire lawsuit lies in its allegation that it was fraudulently induced to enter into the Termination Agreement based upon the alleged false representation by ESA that the closing date would not extend beyond October 29, 2021 and that Broadview was closing on the Property on the same day.
Broadview contended that this allegation has no basis in law because PBAC had not pleaded and
could not plead that it could have justifiably relied on these representations, given the unambiguous
terms of the Termination Agreement. In particular, Broadview pointed to the plain language of the
Termination Agreement providing that “PBAC desires to assign its right to purchase the Austin
Property . . . to Broadview,” ESA and Broadview “intend to enter into a new Agreement of
Purchase and Sale to effectuate [ESA’s] sale of the Austin Property to Broadview,” and “PBAC
hereby assigns to Broadview, and Broadview hereby assumes from PBAC the right to purchase
the Austin Property . . . from [ESA],” as well as the broad release of Broadview and ESA granted
by PBAC for all claims related to the Property, the Termination Agreement, and any other
agreement, arrangement, or understanding between them. Broadview also pointed out the
10 Termination Agreement’s notable silence concerning a date on which Broadview would close on
its purchase of the Property, if at all. Broadview argued that PBAC’s fraud-based claims have no
basis in law or fact because, in light of the plain language of the Termination Agreement, PBAC
did not and cannot plead justifiable reliance on the alleged false oral representations that ESA
would not extend the closing date beyond October 29, 2021, and that Broadview and ESA were
closing on the Property on the same day that the parties executed the Termination Agreement.
Broadview further argued that PBAC’s other claims also had no basis in law or fact because they
contradict the plain and unambiguous language of the Termination Agreement, which extinguished
any interest of PBAC in the Austin Property.
PBAC contends that it added more factual allegations to its Second Amended
Original Petition and that those allegations addressed the two primary pleading deficiencies
complained of in Broadview’s motion. First, PBAC contends that it addressed Broadview’s
contention that PBAC was unable to close on the Austin Property purchase on October 29,
asserting that Broadview argued that PBAC could not afford to close. 7 In the First Amended
Original Petition, PBAC did not explain why it could not close on October 29 and instead made
efforts to extend the date of closing that ESA rebuffed, but in the Second Amended Original
Petition it stated it “was ready, willing, and able to close on October 29, 2021. However, just a
few days before it was set to close, [PBAC] learned ESA had wrongfully orchestrated to close
7 Although it might be reasonable to infer that PBAC could not afford to close on the Austin Property based on the five previous extensions of the closing date that it had requested and received, Broadview did not argue in the motion to dismiss that PBAC could not afford to close. Instead, Broadview argued that PBAC’s fraud-based claims lack a basis in law or fact because PBAC did not and could not plead justifiable reliance on the alleged oral misrepresentations that ESA would not extend the closing date for anyone and that ESA and Broadview would close the sale of the Austin Property on the same day. 11 [PBAC’s] bank accounts that were set up for [PBAC’s] use in order to continue operating the
business upon closing [of the Austin Property sale].” PBAC asserted that this action by ESA made
it impossible for PBAC to close.
Second, PBAC argues that it addressed ESA’s contention that PBAC did not have
a right to extend the closing on the Austin Property past October 29 with its added allegations that
ESA failed to perform conditions precedent to closing under Section 9.1 of the Austin Property
purchase agreement, “including, but not limited to, the requirement that certain banking accounts
be available and other requirements set forth in the agreement.” PBAC alleged that “[h]ad ESA
disclosed these failures, [PBAC] would have invoked its contractual rights to provide notice and
demand for cure, which would have automatically extended the closing date for at least five (5)
days, rather than terminate the agreement.” PBAC argues that if we take these factual allegations
as true, we must conclude that the trial court erred because its petition sufficiently alleges a basis
in law and fact for its fraud claims. We disagree.
A. PBAC did not sufficiently plead its fraud claims.
Both parties focus on whether PBAC sufficiently alleges a basis in law and fact for
its fraud claims presumably because unless PBAC can show that it was fraudulently induced to
enter into the Termination Agreement, the broad release of all claims relating to the parties’
transaction in that Agreement precludes PBAC from having a basis in law for its other claims. To
summarize PBAC’s allegations, PBAC alleges that ESA and Broadview fraudulently induced
PBAC to assign its purchase rights to Broadview (1) by misrepresenting that ESA would not
extend the closing date past October 29, 2021, for any party under any circumstances and that it
would close on the sale of the Austin Property with Broadview on October 29, if PBAC did not
12 close on October 29, and (2) by failing to disclose that ESA had not performed certain conditions
precedent requisite to closing under the original contract. Allegedly, had PBAC known that ESA
and Broadview would not close on October 29 and that ESA did not perform its contractual
obligations, PBAC would not have signed the Termination Agreement. Instead, PBAC argues that
it would have exercised its right under the original contract to automatically extend the closing
date by five days due to ESA’s alleged breaches, demanded that ESA cure them, and then closed
the deal.
PBAC’s live petition alleges five fraud-based causes of action: (1) repudiation and
rescission of the Termination Agreement based on fraudulent inducement, (2) real-estate fraud,
(3) statutory fraud, (4) common-law fraud, and (5) fraudulent and negligent misrepresentation. To
allege a legal and factual basis for its fraud claims, PBAC had to sufficiently plead facts to support
each element of fraud, which generally are (1) that a material misrepresentation was made; (2) the
speaker knew it was false or made it recklessly as a positive assertion without any knowledge of
its truth; (3) the speaker made the representation with the intent to induce the other party to act
upon it; and (4) the other party actually and justifiably relied on the representation and suffered
injury as a result. 8 See Mercedes-Benz USA v. Carduco, Inc., 583 S.W.3d 553, 557-58 (Tex. 2019);
JPMorgan Chase Bank v. Orca Assets, G.P., 546 S.W.3d 648, 653 (Tex. 2018). In its motion to
8 The elements for all of PBAC’s fraud-based claims are very similar. All the claims require that a material misrepresentation is made and that the other party relies on that misrepresentation to its detriment. See JPMorgan Chase Bank v. Orca Assets, G.P., 546 S.W.3d 648, 653-54 (Tex. 2018) (fraud and negligent misrepresentation; for negligent misrepresentation, “a representation made by a defendant in the course of its business or in a transaction in which it has a pecuniary interest”); Comcast Corp. v. Houston Baseball Partners LLC, 627 S.W.3d 398, 413, 420 (Tex. App.––Houston [14th Dist.] 2021) (fraud and fraudulent inducement, negligent misrepresentation), aff’d, 671 S.W.3d 907, 910 (Tex. 2023); Robbins v. Capozzi, 100 S.W.3d 18, 23, 26 (Tex. App.––Tyler 2002, no pet.) (statutory, real-estate, and common-law fraud).
13 dismiss and on appeal, Broadview focuses on PBAC’s failure and inability to plead the element of
justifiable reliance upon the alleged misrepresentations because PBAC “invited and executed the
voluntary, express, complete, and informed release of all of its claims in the
Termination Agreement.”
The Texas Supreme Court has identified at least two circumstances in which a
plaintiff’s purported reliance on a misrepresentation is unjustifiable as a matter of law: (1) when
“red flags” render reliance objectively unreasonable, and (2) when the misrepresentation directly
contradicts the parties’ written agreement. JPMorgan, 546 S.W.3d at 655, 658. In addition,
reliance is likely less justifiable if the transaction involves sophisticated parties dealing at arm’s
length. Id. at 654.
Here, the parties are business entities represented by counsel in a multimillion-
dollar arm’s-length transaction. In addition, PBAC alleges that ESA, not Broadview,
misrepresented that the closing date would not be extended under any circumstances. The only
misrepresentation that PBAC alleges by Broadview is that it and ESA would close on the Austin
Property on October 29, 2021, an allegation that directly contradicts the terms of the Termination
Agreement. The Termination Agreement states that “[i]n connection with and immediately after
the Assignment, [ESA] and Broadview intend to enter into a new Agreement of Purchase and Sale
to effectuate [ESA’s] sale of the Austin Property . . . to Broadview (the “New Contract”),” not
that ESA and Broadview would close on the sale on October 29. Instead, the Termination
Agreement is silent as to any closing date for that sale. And later, in the release provision, the
Termination Agreement states “[t]he foregoing release and indemnification shall survive the
Assignment and the closing of the New Contract or the termination of the New Contract, as
applicable,” language that would not be necessary if the New Contract was closing that same day.
14 Finally, and most critically, the Termination Agreement provides that PBAC’s $2,050,000 earnest
money and the extra $500,000 shall be paid within one business day of the execution of the
agreement. Since October 29, 2021, was a Friday, this term meant the money would not be
transferred to PBAC until three days later on Monday, November 1, 2021. Thus, the Termination
Agreement would not be fully consummated until November 1. Accordingly, the alleged
misrepresentation directly contradicts the terms of the parties’ written agreement.9 We conclude
that it would be objectively unreasonable for PBAC to rely on a representation that ESA and
Broadview would close the deal on October 29, and thus, PBAC’s pleading does not have a basis
in law that supports justifiable reliance on the alleged misrepresentation.
In sum, the facts alleged in PBAC’s petition did not establish a basis in law to
demonstrate that there was justified reliance on the alleged misrepresentation, and thus there is no
basis in law for its fraud claims.
B. PBAC did not sufficiently plead its other claims.
On appeal, PBAC does not separately address the dismissal of its other claims. As
discussed above, the Termination Agreement contains a broad release provision in which the
parties released each other from:
any and all claims . . . arising, directly or indirectly, in any manner from and/or out of or related to either of the PSAs, this Agreement, the New Contract and any other agreement, arrangement or understanding alleged to have been made by any Released Party . . . which may be asserted or assessed against any Released Party . . . arising out of, pertaining to or in any way connected with the transactions contemplated under said agreements . . . .”
9 To the extent that PBAC relies on email excerpts included in its petition to demonstrate that ESA represented that the closing with Broadview would occur on October 29, 2021, it is clear from the context of the emails, which contain terms of the Termination Agreement, that the statement, “Close is set for this Friday,” refers to the closing of the Termination Agreement. 15 Given the breadth of this release, and PBAC’s failure to show that it was fraudulently induced to
enter into the release, PBAC has not pleaded facts that support a basis in law for those claims.
Having concluded that PBAC failed to plead facts that demonstrate a basis in law
for any of its claims, we overrule its second issue.
III. The trial court’s award of attorneys’ fees stands.
In its third issue, PBAC contends that we must reverse the trial court’s various
orders awarding attorneys’ fees if we reverse the Rule 91a dismissal. Because we affirm the trial
court’s dismissal of PBAC’s claims against Broadview, we also affirm the attorneys’ fees awarded.
We overrule PBAC’s third issue.
CONCLUSION
Having overruled PBAC’s issues on appeal, we affirm the trial court’s judgment.
__________________________________________ Gisela D. Triana, Justice
Before Justices Baker, Triana, and Kelly
Affirmed
Filed: August 29, 2024