This dispute arises from the sale of a Knight’s Inn motel by Chhina Family Partnership, L. P., and M. Chhina and J. Chhina, Inc. collectively, “Chhina”, to S-K Group of Motels, Inc. “S-K”, pursuant to an Asset Purchase Agreement “Agreement” executed on October 5, 2001. The Agreement and deed conveyed certain real property as delineated on a survey obtained by Chhina prior to closing. After the sale, S-K discovered that one of the boundary lines shown on the survey bisected one of the apartment buildings that was listed as an asset to be conveyed in the Agreement and that another boundary line excluded a restaurant building that was supposedly included in the transaction. Alleging that Chhina fraudulently misrepresented the boundary lines, S-K filed an action seeking equitable reformation of the deed in accordance with a survey marking the boundary lines as originally pointed out by Chhina to S-K. In addition, based on other acts allegedly committed by Chhina before and after the sale, S-K’s complaint included counts for breach of contract, fraud and deceit, and tortious interference with S-K’s business. Using a special verdict form, the jury returned a verdict in favor of S-K, finding that it was entitled to reformation and awarding a total of $90,000 in damages. This sum included $5,000 in property damages; $20,000 in punitive damages and $15,000 in attorney fees on the fraud claim; and $15,000 in general damages and $35,000 in punitive damages on the tortious interference claim. Judgment was entered on the verdict. Chhina appeals, enumerating as error the denial of its motion for a directed verdict and the court’s failure to give one of its requested jury charges. We affirm. 1. At the outset, we note that although the notice of appeal states that Chhina appeals the judgment entered on the jury’s verdict “in its entirety,” and Chhina’s brief recites that it appeals each award, Chhina has failed to enumerate as error the sufficiency of the evidence to support that portion of the special verdict which found that S-K was entitled to reformation of the deed. Moreover, Chhina did not move for a directed verdict on this issue. Having failed to enumerate as error that the evidence did not support reformation, any such claim is deemed abandoned.1 Accordingly, that portion of the judgment reforming the deed is affirmed under the authority of Bonner v. Cotton 2 and L. S. Land Co. v. Burns .3
2. Chhina first argues that the trial court erred in failing to grant its motion for a directed verdict on the issue of fraud. Chhina asserts that the merger clause in the Agreement bars the claim as a matter of law because S-K did not seek to rescind the contract. It is undisputed that S-K did not seek rescission. In an action for fraud, if the defrauded party has not rescinded but has elected to affirm the contract, he is relegated to a recovery in contract and the merger clause will prevent his recovery. This result obtains because where the allegedly defrauded party affirms a contract which contains a merger or disclaimer provision and retains the benefits, he is estopped from asserting that he relied upon the other party’s misrepresentation and his action for fraud must fail. Stated another way, the entire agreement clause operates as a disclaimer, establishing that the written agreement completely and comprehensively represents all the parties’ agreement. Thus, if the contract contains a merger clause, a party cannot argue they relied upon representations other than those contained in the contract. 4 In this case, the Agreement contained a standard merger clause: “This Agreement, together with all exhibits and schedules hereto, constitutes the entire agreement among the parties pertaining to the subject matter hereof and supercedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties.” Chhina contends that, based on the existence of the merger clause, S-K could not recover damages for fraud. We disagree.
