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Procter v. RMC Capital Corp.

Where the contract for the sale of property includes an "as is" clause under which the buyer explicitly agrees to completely release the seller from every conceivable liability-producing act, omission, or event with regard to the property in question, summary judgment in favor of the sellers in a fraud case is affirmed.

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OPINION

This is an appeal from a summary judgment. Appellants filed suit against appellees alleging both common law fraud, and statutory fraud under Tex. Bus. & Com. Code Ann. � 27.01 (Vernon 1987). The underlying transaction involved the sale by appellees of a certain tract of income producing rental property to appellants. The appellees provided two bases for their motion for summary judgment, viz: (1) Appellants sustained no damages; and (2) “There can be no fraud as a matter of law because all warranties are disclaimed in the sale documents and the Plaintiffs, sophisticated purchasers in an arm’s length transaction released any claims for misrepresentation in the contract of sale.”

The record before us reflects that appellant-Doak Procter, III, was the president and corporate general partner of appellant-College Street, Ltd. The record also reflects that Procter negotiated the purchase and eventually executed the sale’s contract on behalf of College Street, Ltd. for purchase of “certain income producing rental properties” from appellees. There is record evidence indicating appellees are also in the business of purchasing and selling commercial real estate. At any rate, neither side contests the fact that the transaction in question was negotiated at arms length and that both parties were knowledgeable and sophisticated business entities.

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