Reversed and Rendered (No. 14-18-00728-CV); Affirmed (No. 14-18-00793-
CV); Reversed and Remanded (No. 14-18-00798-CV); and Memorandum
Opinion filed August 20, 2020.
In the
Fourteenth Court of Appeals
NO. 14-18-00728-CV
NO. 14-18-00793-CV
PETROBRAS AMERICA, INC. AND PETRÓLEO BRASILEIRO S.A.-
PETROBRAS, Appellants
v.
ASTRA OIL TRADING NV AND ASTRA OIL COMPANY, LLC, Appellees
NO. 14-18-00798-CV
PETROBRAS AMERICA, INC.; PETRÓLEO BRASILEIRO S.A.-
PETROBRAS; PASADENA REFINING SYSTEM, INC.; PRSI TRADING
LLC; AND PRSI REAL PROPERTY HOLDINGS, LLC, Appellants
v.
ASTRA OIL TRADING NV; TRANSCOR ASTRA GROUP S.A.; ASTRA
OIL COMPANY, LLC; ASTRA ENERGY HOLDINGS, INC.; ASTRA GP,
INC.; ASTRA TRADECO LP, LLC; PASADENA REFINING HOLDING
PARTNERSHIP; AOT BIS B.V.; CLIFFORD L. WINGET, III; ALBERTO
FEILHABER; KARI BURKE; JOHN T. HAMMER; CARLOS E. ORTIZ;
THOMAS J. NIMBLEY; IRENEUSZ KOTULA; CHARLES L. DUNLAP;
ERIC BLUTH; STEPHEN WADE; ROLF MUELLER; AND DANIEL
BURLA, Appellees
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause No. 2016-43650
MEMORANDUM OPINION
Stated simply, this case involves an often-contentious business relationship
and the parties’ attempt to settle their disputes. There are three related appeals. In
appellate case number 14-18-00798-CV, Petrobras America, Inc.; Petróleo
Brasileiro S.A.-Petrobras (Petrobras); Pasadena Refining System, Inc. (PRSI); PRSI
Real Property Holdings, LLC; and PRSI Trading LLC (together, the Petrobras
Plaintiffs) appeal the trial court’s final judgment, signed June 12, 2018, in which it
rendered final summary judgment in favor of Astra Oil Trading NV (AOT); Transcor
Astra Group S.A.; Astra Oil Company, LLC (Astra Oil);1 Astra Energy Holdings,
Inc.; Astra GP, Inc.; Astra TradeCo LP, LLC; Pasadena Refining Holding
Partnership (PRHP); AOT Bis B.V. (AOT BV); Clifford L. Winget, III; Alberto
Feilhaber; Kari Burke; John T. Hammer; Carlos E. Ortiz; Thomas J. Nimbley;
Ireneusz Kotula; Charles L. Dunlap; Eric Bluth; Stephen Wade; Rolf Mueller; and
Daniel Burla2 (together, the Astra Defendants). In appellate case number 14-18-
00728-CV, Petrobras America and Petrobras appeal from the trial court’s August
21, 2018 amended order granting supplemental relief enforcing the judgment in the
form of an anti-suit injunction in favor of AOT and Astra Oil. And in appellate case
1
The predecessor of Astra Oil Company, LLC is Astra Oil Company, Inc.
2
A suggestion of death was filed regarding Burla. See Tex. R. App. P. 7.1(a)(1).
2
number 14-18-00793-CV, Petrobras America and Petrobras appeal from the trial
court’s August 28, 2018 amended order denying their motion to dismiss under the
Texas Citizens Participation Act (TCPA)3 in favor of AOT and Astra Oil.
In appellate case number 14-18-00728-CV, we reverse and render judgment
ordering the amended order granting supplemental relief enforcing the judgment in
the form of an anti-suit injunction dissolved. In appellate case number 14-18-00793-
CV, we affirm the amended order denying the motion to dismiss under the TCPA.
In appellate case number 14-18-00798-CV, we reverse the trial court’s final
judgment and remand with instructions for the trial court to render partial summary
judgment in accordance with our judgment and conduct additional proceedings.
I. BACKGROUND
In 2006, Petrobras, AOT, and Astra Oil Company, Inc. entered into the Stock
Purchase and Sale Agreement and Limited Partnership Formation Agreement (2006
SPA) in connection with an oil refinery in Pasadena, Texas. Disputes arose, resulting
in an arbitration and several lawsuits in state and federal courts.
In 2012, Petrobras America, Petrobras, PRSI, PRSI Real Property, PRSI
Trading, AOT, Astra GP, Astra TradeCo, Astra Oil, Astra Energy, PHRP, and
Transcor Astra entered into the Settlement Agreement and Mutual General Release
(2012 Settlement). Among other provisions, the 2012 Settlement contains mutual
releases and reliance disclaimers.
3
All citations to the TCPA in this opinion are to the version in effect before the September
2019 amendments became effective. See Act of May 21, 2011, 82d Leg., R.S., ch. 341, § 2, 2011
Tex. Gen. Laws 961, 961–64 (current version at Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001–
.011), amended by Act of May 24, 2013, 83d Leg., R.S., ch. 1042, §§ 1–3, 5, 2013 Tex. Gen. Laws
2499, 2499–500 (the version at issue in this opinion); see also Act of May 17, 2019, 86th Leg.,
R.S., ch. 378, §§ 1–12, 2019 Tex. Gen. Laws 684, 684–87 (amending TCPA and providing that
suit filed before amendments become effective “is governed by the law in effect immediately
before that date”).
3
In June 2016, the Petrobras Plaintiffs filed suit against the Astra Defendants
in Harris County District Court. The Petrobras Plaintiffs alleged:
• declaratory relief;
• breach of fiduciary duty against Winget, Feilhaber, Hammer,
Burke, Nimbley, Kotula, Dunlap, Bluth, and Wade;
• aiding and abetting breach of fiduciary duty against all Astra
Defendants except AOT and Astra Oil;
• civil conspiracy as to breach of fiduciary duty against all Astra
Defendants except AOT and Astra Oil;
• unjust enrichment/money had and received;
• common-law fraud;
• statutory fraud under Business and Commerce Code section
27.01;
• negligent misrepresentation;
• civil conspiracy as to “other claims”;
• “exemplary and punitive damages”;
• attorney’s fees and costs; and
• joint-and-several liability of PRHP.4
AOT, Transcor Astra, Astra Oil, Astra Energy, Astra GP, Astra TradeCo, PRHP,
AOT BV, Winget, Feilhaber, Burke, Hammer, Ortiz, Nimbley, Kotula, Dunlap,
Bluth, and Wade filed declaratory-judgment counterclaims and sought attorney’s
fees.5
In July 2016, Petrobras America and Petrobras filed an original demand for
4
The Petrobras Plaintiffs also alleged breach-of-contract claims against all Astra
Defendants except Feilhaber, Mueller, and Burla and sought attorney’s fees. The trial court severed
those claims into cause number 2016-43650A.
5
AOT and Astra Oil also alleged breach-of-contract claims against Petrobras America and
Petrobras for pursuing the arbitration and sought attorney’s fees but subsequently requested the
trial court nonsuit without prejudice, which the trial court did on May 1, 2018.
4
arbitration against AOT and Astra Oil because they allegedly “engaged in bribery
and corruption in connection with” the parties’ 2006 SPA. They alleged that the
parties agreed to arbitrate this dispute under the 2006 SPA, which contains an
arbitration provision.6 In September 2016, AOT and Astra Oil filed a motion to stay
the arbitration in the trial court, which the trial court denied by written order signed
October 26, 2016. Both the litigation and the arbitration proceeded.
In November 2017, AOT, Transcor Astra, Astra Oil, Astra Energy, Astra GP,
Astra TradeCo, PRHP, AOT BV, Winget, Burke, Hammer, Ortiz, Nimbley, Kotula,
Dunlap, Bluth, and Wade filed an amended motion for summary judgment, seeking
dismissal of the claims in the Petrobras Plaintiffs’ second amended petition and
arguing that they were entitled to judgment on their declaratory-judgment
counterclaims.7 Feilhaber adopted this amended summary-judgment motion. The
6
Article 15 of the 2006 SPA, entitled “Arbitration,” in pertinent part provides:
15.01. Dispute Resolution. Any controversy or claim (“Claim”), whether based on
contract, tort, statute or other legal or equitable theory (including but not limited to
any claim of fraud, misrepresentation or fraudulent inducement or any question of
validity or effect of this Agreement including this clause) arising out of or related
to this Agreement (including any amendments or extensions), or the breach or
termination thereof or as to any Related Agreements, shall be submitted to
mediation and consultations between the Parties initiated upon the notice of any
Party (“Mediation Notice”). In the event of failure of such mediation and
consultations to settle such Claim in a manner acceptable to all Parties within thirty
(30) days following the Mediation Notice, then any such Claim shall be settled by
binding arbitration in accordance with this provision and the then current rules of
American Arbitration Association (“AAA”). The arbitration shall be governed by
the United States Arbitration Act, 9 U.S.C. §§ 1–16, to the exclusion of any
provision of state law inconsistent therewith or which would produce a different
result, and Judgment upon the award rendered by the arbitrator may be entered by
any court having jurisdiction.
7
Attached to the amended summary-judgment motion were: a November 2017 affidavit
by Beth Bivans Petronio; the 2012 Settlement; three draft settlement agreements; affidavits by
Winget, Yvonne Roellin, Burke, Hammer, Ortiz, Nimbley, Kotula, Dunlap, Bluth, and Wade;
transcripts from the depositions of Winget, Roellin, Burke, Hammer, Ortiz, Kotula, Dunlap, and
Wade; and Petrobras America’s and Petrobras’s amended arbitration demand.
5
Petrobras Plaintiffs responded8 and filed a third amended petition, adding the claims
for breach of fiduciary duty against Winget, Feilhaber, Hammer, Burke, Nimbley,
Kotula, Dunlap, Bluth, and Wade.
The trial court signed interlocutory orders granting the amended motions for
summary judgment. AOT, Transcor Astra, Astra Oil, Astra Energy, Astra GP, Astra
TradeCo, PRHP, AOT BV, Winget, Burke, Hammer, Ortiz, Nimbley, Kotula,
Dunlap, Bluth, and Wade then filed a motion for summary judgment regarding the
third amended petition. Feilhaber adopted this motion. Mueller and Burla also filed
a conditional9 motion for summary judgment regarding the third amended petition.
The trial court signed interlocutory orders granting the motions for summary
judgment regarding the third amended petition. On June 12, 2018, the trial court
signed a final judgment,10 which ordered that the Petrobras Plaintiffs take nothing
on their claims and granting AOT, Transcor Astra, Astra Oil, Astra Energy, Astra
GP, Astra TradeCo, PRHP, AOT BV, Winget, Burke, Hammer, Ortiz, Nimbley,
Kotula, Dunlap, Bluth, and Wade a declaratory judgment, ruling:
a. the June 29, 2012 Settlement Agreement and Mutual General
Release (the “Settlement Agreement”) is valid, binding and
8
Attached to the Petrobras Plaintiffs’ response were: a December 2017 affidavit by
William Katz; a translation of “collaboration agreement” by Nestor Cunat Cervero; a translation
of a supplementary “cooperation agreement” by Cervero; translations of two “declarations” by
Agosthilde Monaco de Carvalho; a translation of “statements” by Fernando Antonio Falcao
Soares; a translation of a “statement of declaration” by Soares; witness statements in the arbitration
by Winget, Feilhaber, and Hammer; the October 2017 award on jurisdiction issued by the tribunal;
transcripts from the depositions of Bluth and Nimbley; and excerpts from the deposition of
Feilhaber.
9
Mueller’s and Burla’s summary-judgment motion was filed subject to their special
appearances, which the trial court later denied by order signed March 27, 2018.
10
The final judgment states: “All claims relating to all parties remaining in Cause No.
2016-43650 are determined and disposed of by this Final Judgment. All relief requested but not
granted herein is denied. . . . This Final Judgment is appealable.” The trial court rendered a final
and appealable judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001).
6
enforceable in all respects;
b. the Petrobras Release given by the “Petrobras Parties” in Section
5.11 of the Settlement Agreement is valid, enforceable and
binding; and
c. the Petrobras Release bars (i) the claims asserted in the
proceeding for Breach of Fiduciary Duty[,] Aiding and Abetting
Breach of Fiduciary Duty, and Civil Conspiracy–Breach of
Fiduciary Duty; (ii) the claims sought to be asserted by Petrobras
in the ICDR Arbitration commenced by Petrobras and styled
Petrobras America, Inc., et al. v. Astra Oil Trading NV, et al[.],
Cause No. 01-16-0003-1149; and (iii) any other claims arising
out of or related to the 2006 SPA or the dealings between the
parties.
The trial court separately ordered Feilhaber have a final declaratory judgment that
the 2012 Settlement was valid, binding, and enforceable in all respects and the
Petrobras Release was enforceable and binding. The trial court awarded these Astra
Defendants various amounts of chapter-37 attorney’s fees.
In July 2018, AOT and Astra Oil filed a motion for supplemental relief to
enforce the judgment, requesting that the Petrobras parties be enjoined from further
pursuit of the arbitration. The trial court granted this motion. AOT and Astra Oil
subsequently filed a motion for an amended order granting supplemental relief to
enforce the judgment. The Petrobras Plaintiffs filed a motion to dismiss under the
TCPA. The trial court held a hearing, granting AOT’s and Astra Oil’s motion for an
amended order granting supplemental relief enforcing the judgment and denying the
Petrobras Plaintiffs’ TCPA motion to dismiss. These three appeals—from the final
judgment, the amended order granting supplemental relief in the form of an anti-suit
injunction, and the order denying the TCPA motion—followed.
II. ANALYSIS
A. No. 14-18-00798-CV
7
In their amended motions for summary judgment, the Astra Defendants raised
the following grounds against the Petrobras Plaintiffs’ claims:
• the claims for fraud, statutory fraud, and negligent
misrepresentation based on alleged misrepresentations and
failures to disclose the alleged 2006 bribe and the alleged
settlement bribe offer during settlement discussions were barred
by the declaimer-of-reliance provision in section 5.29 of the 2012
Settlement;
• the claims for fraud, statutory fraud, and negligent
misrepresentation fail because the Astra Defendants had no duty
during settlement discussions to make any disclosures about the
alleged settlement bribe offer;
• the claims for declaratory judgment, unjust enrichment, civil
conspiracy as to “other claims,” joint-and-several liability of
PRHP, punitive damages, and attorney’s fees also fail because
they are derivative of the underlying misrepresentation claims;
and
• the claims for aiding and abetting breach of fiduciary duty and
civil conspiracy as to breach of fiduciary duty were barred by the
Petrobras Release.
In addition, the Astra Defendants (except for Mueller and Burla) argued they were
entitled to declaratory judgment on their claims for “declaratory judgment
confirming the validity and enforceability of the Petrobras Release and that the
Petrobras Release bars any claims by Petrobras arising out of or relating to the 2006
SPA or any of the parties’ prior dealings.”
The Petrobras Plaintiffs argued in response that the reliance disclaimer did not
apply to the failure to disclose the 2006 bribery scheme; the reliance disclaimer did
not bar their claims considering the Astra Defendants’ criminal conduct and the
totality of the circumstances; and the release expressly excluded the Petrobras
Plaintiffs’ claims. They further argued that the Astra Defendants were not entitled
to summary judgment on their declaratory-judgment counterclaims.
8
The Astra Defendants’ motions for summary judgment regarding the third
amended petition incorporated all the reasons and evidence from the amended
summary-judgment motions. In addition, the Astra Defendants argued that the new
claims for breach of fiduciary duty were “barred by the Petrobras Release.” The
Petrobras Plaintiffs argued in response that, even if enforceable, the reliance
disclaimer did not apply to nine of their claims; the broad exception in the release
preserved their non-reliance-based claims; the individual defendants were not
entitled to summary judgment in their individual capacities on any claims; the Astra
Defendants were not entitled to declaratory relief that affected the arbitration; and
the Astra Defendants were not entitled to an award of attorney’s fees or costs.
1. Summary judgment dismissing the Petrobras Plaintiffs’ claims
In their first issue, broken into sub-issues, the Petrobras Plaintiffs argue that
the trial court erred in granting the motions for summary judgment on their claims
in favor of the Astra Defendants. Our review of a summary judgment is de novo.
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.
2009). Because the trial court’s summary-judgment orders do not specify the ground
or grounds upon which they were granted, we uphold the court’s judgment if
properly supported by any ground alleged in the motions. See Carr v. Brasher, 776
S.W.2d 567, 569 (Tex. 1989). When reviewing a summary judgment, we take as true
all evidence favorable to the nonmovant, and we indulge every reasonable inference
and resolve any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett,
164 S.W.3d 656, 661 (Tex. 2005). To be entitled to traditional summary judgment,
a movant must establish there is no genuine issue of material fact so that the movant
is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort,
289 S.W.3d at 848. A defendant who conclusively negates a single essential element
of a cause of action or conclusively establishes an affirmative defense is entitled to
9
summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494,
508–09 (Tex. 2010). Once the movant produces evidence entitling it to summary
judgment, the burden shifts to the nonmovant to present evidence raising a genuine
issue of material fact. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996).
a. The Petrobras release
We first consider the Petrobras Plaintiffs’ first sub-issue regarding the Astra
Defendants’ summary-judgment ground of release. The release at issue provides:
Release of the Astra Parties
5.11 On the Effective Date, and once payment of the amount
set forth in Section 5.02 is made and except as otherwise provided in
Sections 5.03 and 5.06 and this Section 5.11, the Petrobras Parties
generally release and forever discharge the Astra Parties from any and
all claims, demands, and causes of action of whatever kind or character
which the Petrobras Parties have, or may have in the future, based on
any acts or omissions, whether known or unknown, that have occurred
on or before the Effective Date, including, without limitation: (a) any
claim that was or could have been asserted in, that grew out of, or that
was in any way connected with, the Disputes; (b) any claim arising out
of or related to the 2006 SPA, including without limitation, any claims
related to the indemnities, representations, warranties, covenants and
purchase price adjustments provided for therein; (c) any claim arising
out of, or connected in any way with, any environmental issues of any
kind at the refinery owned and operated by PRSI; (d) any claim
growing out of, or connected in any way with, the Astra Parties’
dealings with the Petrobras Parties; (e) any claim based in whole or in
part on the activities of the Astra Parties that may have been alleged to
violate any laws or administrative rules of the United States, or any state
or subdivision of the United States, or any foreign country or
subdivision of any foreign country, (f) any claim based in whole or in
part on the activities of the Astra Parties that may have been alleged to
create any right or action for recovery for damages or injunction, under
any federal or state statutes or administrative rule or other judicial
decisions or the common law of the United States, or any state or
subdivision of the United States, or any foreign country or subdivision
of any foreign country; (g) any claim based in whole or in part on the
10
activities of the Astra Parties that may have been alleged to create or
contribute to any other right, claim or cause of action of the Petrobras
Parties against the Astra Parties; and (h) claims for punitive or
exemplary damages, attorney’s fees, costs, or penalties (collectively,
the “Petrobras Claims”). This release is to be construed as the broadest
type of general release and is intended to constitute a general release by
the Petrobras Parties of the Astra Parties of the Petrobras Claims,
whether known or unknown. Notwithstanding anything to the contrary,
the Petrobras Claims shall not include any and all claims, demands, and
causes of action arising out of, related to, or connected in any way with
the alleged breach, enforcement, or interpretation of this Settlement
Agreement or the Common Interest Agreement.
Release is an affirmative defense under the Texas Rules of Civil Procedure.
Tex. R. Civ. P. 94. A release is a writing which provides that a duty or obligation
owed to one party to the release is discharged immediately or upon the occurrence
of a condition. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Ins. Co. of N. Am., 955
S.W.2d 120, 127 (Tex. App.—Houston [14th Dist.] 1997), aff’d sub nom. Keck,
Mahin & Cate v. Nat’l Fire Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692 (Tex. 2000);
Baty v. ProTech Ins. Agency, 63 S.W.3d 841, 848 (Tex. App.—Houston [14th Dist.]
2001, pet. denied) (op. on reh’g). A release of a claim or cause of action extinguishes
the claim or cause of action. Dresser Indus., Inc. v. Page Petroleum, Inc., 853
S.W.2d 505, 508 (Tex. 1993). Like any other agreement, a release is a contract
subject to the rules of contract construction. Baty, 63 S.W.3d at 848; see Williams v.
Glash, 789 S.W.2d 261, 264 (Tex. 1990). When construing a contract, the court must
give effect to the true intentions of the parties as expressed in the written instrument.
Lenape Res. Corp. v. Tenn. Gas Pipeline Co., 925 S.W.2d 565, 574 (Tex. 1996);
Baty, 63 S.W.3d at 848.
The contract must be read as whole, not by “isolating a certain phrase,
sentence, or section of the agreement.” Baty, 63 S.W.3d at 848. Rather, the court
must examine the entire contract in an effort to harmonize and give effect to all of
11
its provisions so that none are rendered meaningless and no single provision
controls. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). The
language is to be given its plain grammatical meaning unless doing so would defeat
the intent of the parties. Baty, 63 S.W.3d at 848. A contract is unambiguous if it can
be given a definite legal meaning. Webster, 128 S.W.3d at 229. The interpretation
of an unambiguous contract is a matter of law to be determined by the court. Gulf
Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 423 (Tex. 2000). In construing a
contract, the court may not rewrite it or add to its language. Am. Mfrs. Mut. Ins. Co.
v. Schaefer, 124 S.W.3d 154, 162 (Tex. 2003).
To effectively release a claim, the releasing instrument must mention the
claim to be released. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 938 (Tex.
1991); Baty, 63 S.W.3d at 848. Claims that are not clearly within the subject matter
of the release are not discharged, even if they exist when the release is executed.
Brady, 811 S.W.2d at 938; Baty, 63 S.W.3d at 848. It is not necessary, however, that
the parties anticipate and identify every potential cause of action relating to the
subject matter of the release. Keck, 20 S.W.3d at 698; Baty, 63 S.W.3d at 848.
Although releases generally contemplate claims existing at the time of execution, a
valid release may also encompass unknown claims and future damages. Keck, 20
S.W.3d at 698; Baty, 63 S.W.3d at 848. General categorical release clauses are
narrowly construed. Brady, 811 S.W.2d at 938.
In their summary-judgment motions, the Astra Defendants argued that the
Petrobras Plaintiffs’ claims for breach of fiduciary duty, aiding and abetting breach
of fiduciary duty, and conspiracy as to breach of fiduciary duty fell within the release
as claims “arising out of or related to the 2006 SPA”; “growing out of, or connected
in any way with, the Astra Parties’ dealings with the Petrobras Parties”; “based . . .
on the activities of the Astra Parties that may have been alleged to violate any laws”;
12
and “based . . . on the activities of the Astra Parties that may have been alleged to
create any right or action [for Petrobras].”
The trial court granted the motions for summary judgment in favor of the
Astra Defendants on the Petrobras Plaintiffs’ claims for breach of fiduciary duty,
aiding and abetting breach of fiduciary duty, and conspiracy as to breach of fiduciary
duty. To show their entitlement to judgment as a matter of law, the Astra Defendants
had to conclusively establish that these claims were not viable because they were
barred by the release. See Tex. R. Civ. P. 166a(c). We conclude that the Astra
Defendants did not meet their burden and therefore conclude that the trial court erred
by granting their motions for summary judgment on these claims.
The Petrobras Plaintiffs contend that the trial court erred because all their
“claims fall outside the scope of the Release.” As they did in the trial court, they
point to the carve-out language in section 5.11: “Notwithstanding anything to the
contrary, the Petrobras Claims shall not include any and all claims, demands, and
causes of action arising out of, related to, or connected in any way with the alleged
breach, enforcement, or interpretation of this Settlement Agreement.” They argue
that this language is subject to a broad, inclusive construction.
On appeal, the Astra Defendants point out that they only raised the release to
defeat the Petrobras Plaintiffs’ claims for breach of fiduciary duty, aiding and
abetting breach of fiduciary duty, and conspiracy as to breach of fiduciary duty. They
argue that “[t]he only reasonable interpretation of the Release is exactly what it says,
namely, that it applies to the 2006 SPA Claims,” which according to the Astra
Defendants were “based on . . . alleged misconduct relating to the 2006 SPA.”11
11
The Astra Defendants did not mention or address the carve-out portion of the release in
their summary-judgment motions.
13
No party argues that the release is ambiguous. The release states that it “is to
be construed as the broadest type of general release and is intended to constitute a
general release . . . of the Petrobras Claims, whether known or unknown.” The term
“Petrobras Claims” is defined to include “any and all claims, demands, and causes
of action of whatever kind or character which the Petrobras Parties have, or may
have in the future, based on any acts or omissions, whether known or unknown, that
have occurred on or before the Effective Date,”12 including “any claim arising out
of or related to the 2006 SPA.” But the release also includes an express carve-out,
which states that “[n]otwithstanding anything to the contrary, the Petrobras Claims
shall not include any and all claims, demands, and causes of action arising out of,
related to, or connected in any way with the alleged breach, enforcement, or
interpretation of this Settlement Agreement.”13
12
The release goes on to “includ[e], without limitation” and define the following as the
“Petrobras Claims”:
(a) any claim that was or could have been asserted in, that grew out of, or that was
in any way connected with, the Disputes; (b) any claim arising out of or related to
the 2006 SPA, including without limitation, any claims related to the indemnities,
representations, warranties, covenants and purchase price adjustments provided for
therein; (c) any claim arising out of, or connected in any way with, any
environmental issues of any kind at the refinery owned and operated by PRSI;
(d) any claim growing out of, or connected in any way with, the Astra Parties’
dealings with the Petrobras Parties; (e) any claim based in whole or in part on the
activities of the Astra Parties that may have been alleged to violate any laws or
administrative rules of the United States, or any state or subdivision of the United
States, or any foreign country or subdivision of any foreign country, (f) any claim
based in whole or in part on the activities of the Astra Parties that may have been
alleged to create any right or action for recovery for damages or injunction, under
any federal or state statutes or administrative rule or other judicial decisions or the
common law of the United States, or any state or subdivision of the United States,
or any foreign country or subdivision of any foreign country; (g) any claim based
in whole or in part on the activities of the Astra Parties that may have been alleged
to create or contribute to any other right, claim or cause of action of the Petrobras
Parties against the Astra Parties; and (h) claims for punitive or exemplary damages,
attorney’s fees, costs, or penalties.
13
The same carve-out language is used in section 5.09 of the 2012 Settlement, which
14
“When parties use the clause ‘notwithstanding anything to the contrary
contained herein’ in a paragraph of their contract, they contemplate the possibility
that other parts of their contract may conflict with that paragraph, and they agree that
this paragraph must be given effect regardless of any contrary provisions of the
contract.” Helmerich & Payne Int’l Drilling Co. v. Swift Energy Co., 180 S.W.3d
635, 643 (Tex. App.—Houston [14th Dist.] 2005, no pet.); see also Horseshoe Bay
Resort, Ltd. v. CRVI CDP Portfolio, LLC, 415 S.W.3d 370, 384 (Tex. App.—
Eastland 2013, no pet.) (describing “notwithstanding” and “despite” as
“[s]uperordinating language” that “shows which provision prevails in the event of a
clash”). In addition, we ordinarily read the clause “arising out of, related to, or
connected in any way with” broadly. See Branch Law Firm L.L.P. v. Osborn, 532
S.W.3d 1, 19–20 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (“The use of
such broad language [“arising out of or in connection with”] evidences the parties’
intent to be inclusive rather than exclusive.”); Grant Prideco, Inc. v. Empeiria
Conner L.L.C., 463 S.W.3d 157, 161–62 (Tex. App.—Houston [14th Dist.] 2015,
no pet.) (“The words ‘arising out of’ have been interpreted by courts as broad,
general, and comprehensive terms effecting broad coverage in that the words are
understood to mean originating from, having its origin in, growing out of, or flowing
from.” (internal quotation marks omitted)).
The question therefore is, keeping in mind that we construe general
categorical releases narrowly and must give effect to the “notwithstanding”
carve-out, even if the Petrobras Plaintiffs’ claims for breach of fiduciary duty, aiding
and abetting breach of fiduciary duty, and conspiracy as to breach of fiduciary duty
otherwise fit within the release, can these claims, applying Texas’s fair-notice
concerns the release of the “Astra Claims.”
15
pleading standard,14 be broadly and reasonably categorized as growing out of or
flowing from the alleged breach,15 enforcement,16 or interpretation17 of the 2012
Settlement such that they fall within the exception? We conclude that, as pleaded by
the Petrobras Plaintiffs, they can.
Contrary to the Astra Defendants’ assertion, the Petrobras Plaintiffs did not
solely limit their claims for breach of fiduciary duty, aiding and abetting breach of
fiduciary duty, and conspiracy as to breach of fiduciary duty to the Astra Defendants’
“alleged misconduct relating to the 2006 SPA.” In their third amended petition, the
Petrobras Plaintiffs alleged that certain defendants18 owed them fiduciary duties by
virtue of their director and officer roles in PRSI, PRSI Trading, or both. While the
Petrobras Plaintiffs did allege that these defendants breached their fiduciary duties
by paying about $15 million in bribes in connection with the initial purchase of 50%
of PRSI, the Petrobras Plaintiffs further alleged that these defendants breached their
fiduciary duties by offering to pay between $80 and $100 million in bribes to reach
a settlement “during the ongoing litigation that culminated in the” 2012 Settlement
and by failing to disclose such facts while the 2012 Settlement was being negotiated
and signed. In addition, the Petrobras Plaintiffs alleged that these defendants were
14
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.”).
15
“Breach” means “[a] violation or infraction of a law, obligation, or agreement, esp. of an
official duty or a legal obligation, whether by neglect, refusal, resistance, or inaction.” Black’s
Law Dictionary (11th ed. 2019).
16
“Enforcement” means “[t]he act or process of compelling compliance with a law,
mandate, command, decree, or agreement.” Black’s Law Dictionary (11th ed. 2019).
17
“Interpretation” means “[t]he ascertainment of a text’s meaning; specif., the
determination of how a text most fittingly applies to particular facts.” Black’s Law Dictionary
(11th ed. 2019).
18
Again, these defendants were Winget, Feilhaber, Hammer, Burke, Nimbley, Kotula,
Dunlap, Bluth, and Wade.
16
knowing participants in the breaches, fully liable, and had a personal financial
interest in the 2012 Settlement through their respective ownership interests in PRHP,
which received at least $135 million of the funds paid under the agreement. In
addition, the Petrobras Plaintiffs alleged that the Astra Defendants19 knew of the
fiduciary relationships owed by certain defendants, knew they were participating in
breaches of those duties, and therefore aided and abetted the breaches. Finally, the
Petrobras Plaintiffs alleged that the Astra Defendants20 agreed and/or conspired with
each other and possibly third parties in connection with aiding and abetting the
breaches of fiduciary duties by performing acts, making statements, and concealing
information in furtherance of such conspiracy. The Petrobras Plaintiffs sought any
and all legal and equitable remedies, including damages, disgorgement, rescission,
restitution, and imposition of a constructive trust.
To the extent that the Petrobras Plaintiffs’ claims for breach of fiduciary duty,
aiding and abetting breach of fiduciary duty, and conspiracy as to breach of fiduciary
duty are alleged to involve acts or omissions of the Astra Defendants “in connection
with the initial purchase of 50% of PRSI,” they are properly barred by the general
release as claims “arising out of or related to the 2006 SPA.” However, the Petrobras
Plaintiffs also alleged claims for breach of fiduciary duty, aiding and abetting breach
of fiduciary duty, and conspiracy as to breach of fiduciary duty involving acts or
omissions of the Astra Defendants in connection with the negotiation and signing of
the 2012 Settlement and sought to limit or undo payments made pursuant to that
agreement. We conclude that these claims reasonably fall within the inclusive,
“superordinating” carve-out language of the release as claims “arising out of, related
to, or connected in any way with the alleged breach, enforcement, or interpretation
19
Again, these defendants did not include AOT or Astra Oil.
20
See supra note 19.
17
of this Settlement Agreement” and therefore are not barred by the release.21
Because the Astra Defendants did not conclusively establish that all the
Petrobras Plaintiffs’ claims for breach of fiduciary duty, aiding and abetting breach
of fiduciary duty, and conspiracy as to breach of fiduciary duty against them fall
clearly within the scope of the release, we conclude that the trial court erred by
granting the motions for summary judgment, dismissing all these claims with
prejudice, and declaring that all these claims were barred by the release.
Accordingly, we sustain this portion of the Petrobras Plaintiffs’ first issue.
b. The disclaimer of reliance
We next consider the Petrobras Plaintiffs’ second and third sub-issues
regarding the Astra Defendants’ summary-judgment ground of disclaimer of
reliance. The disclaimer of reliance at issue provides:
5.29 EACH PARTY EXPRESSLY WARRANTS THAT IT
HAS CAREFULLY READ THIS SETTLEMENT AGREEMENT
AND ANY EXHIBITS ATTACHED TO IT, UNDERSTANDS
THEIR CONTENTS, AND SIGNS THIS SETTLEMENT
AGREEMENT AS ITS OWN FREE ACT. EACH PARTY
EXPRESSLY WARRANTS THAT NO PROMISE OR
AGREEMENT WHICH IS NOT HEREIN EXPRESSED HAS
BEEN MADE TO IT IN EXECUTING THIS SETTLEMENT
AGREEMENT, AND THAT IT IS NOT RELYING UPON ANY
STATEMENT OR REPRESENTATION OF ANY AGENT OF
THE OPPOSING PARTIES BEING RELEASED IN THIS
21
We note that other sections of the 2012 Settlement tend to reinforce the inclusive nature
of the carve-out, including the forum-selection provision in section 5.20 governing where the
parties agreed to file “any dispute arising out of or related to Settlement Agreement” and where
they irrevocably submitted to jurisdiction “for any legal proceeding arising out of or related to this
Agreement,” as well as the provision in section 5.22 by which the parties waived their right to a
jury trial “in respect to any litigation, action, suit, or proceeding (whether at law or equity) based
on, arising out of, related to, or connected in any way with this Settlement Agreement, whether
arising in contract, tort or otherwise and whether asserted by way of complaint, answer,
cross-claim, counterclaim, affirmative defense or otherwise.”
18
SETTLEMENT AGREEMENT. EACH PARTY IS RELYING ON
ITS OWN JUDGMENT, AND EACH PARTY HAS BEEN
REPRESENTED BY LEGAL COUNSEL IN THIS MATTER.
EACH PARTY EXPRESSLY WARRANTS THAT ITS
RESPECTIVE LEGAL COUNSEL HAS READ AND
EXPLAINED THE ENTIRE CONTENTS OF THIS
SETTLEMENT AGREEMENT IN FULL, AS WELL AS THE
LEGAL CONSEQUENCES OF IT.
A contract is subject to avoidance on the ground of fraudulent inducement.
Williams, 789 S.W.2d at 264. However, “a disclaimer of reliance may conclusively
negate the element of reliance, which is essential to a fraudulent inducement claim.”
Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 179–80 (Tex. 1997)
(concluding that disclaimer-of-reliance clause effectively precluded claim for
fraudulent inducement).
The question of whether an adequate disclaimer of reliance exists is a matter
of law, which we review de novo. See Forest Oil Corp. v. McAllen, 268 S.W.3d 51,
55 (Tex. 2008). In Forest Oil, the Supreme Court of Texas applied Schlumberger to
uphold a disclaimer of reliance in a settlement agreement that was intended to
resolve both future and past claims. Id. at 58. The Forest Oil court “clarified” the
factors that guided its reasoning:
(1) the terms of the contract were negotiated, rather than boilerplate,
and during negotiations the parties specifically discussed the issue
which has become the topic of the subsequent dispute;
(2) the complaining party was represented by counsel;
(3) the parties dealt with each other in an arm’s length transaction;
(4) the parties were knowledgeable in business matters; and
(5) the release language was clear.
268 S.W.3d at 60 (as in Schlumberger, “[c]ourts must always examine the contract
itself and the totality of the surrounding circumstances when determining if a
19
waiver-of-reliance provision is binding”); see also Int’l Bus. Machines Corp. v.
Lufkin Indus., LLC, 573 S.W.3d 224, 229–30 (Tex. 2019) (applying same factors).
“[T]he five Forest Oil considerations a[re] ‘facts . . . that guide[] our reasoning’ and
‘factors’—not elements that all must be established before a disclaimer of reliance
is enforceable.” McLernon v. Dynegy, Inc., 347 S.W.3d 315, 333 (Tex. App.—
Houston [14th Dist.] 2011, no pet.) (quoting Forest Oil, 268 S.W.3d at 60).
In their summary-judgment motions, the Astra Defendants argued that the
Petrobras Plaintiffs’ claims for fraud, statutory fraud, and negligent
misrepresentation should be dismissed because they were barred as a matter of law
by the disclaimer of reliance in section 5.29 of the 2012 Settlement. They argued
that justifiable reliance was an essential element of these three claims, and the
disclaimer conclusively negated any claim of reliance pursuant to the Schlumberger
doctrine. In addition, they argued that because the Petrobras Plaintiffs’ remaining
“claims”—for declaratory relief, unjust enrichment, civil conspiracy as to “other
claims,” joint-and-several liability of PHRP, punitive damages, and attorney’s
fees—required proof of the underlying misrepresentation claims, they also had to be
dismissed.
The trial court granted the motions for summary judgment in favor of the
Astra Defendants on the Petrobras Plaintiffs’ claims for declaratory relief, unjust
enrichment/money had and received, common-law fraud, statutory fraud, negligent
misrepresentation, civil conspiracy as to “other claims,” exemplary damages,
attorney’s fees and costs, and joint-and-several liability of PRHP. To show their
entitlement to judgment as a matter of law, the Astra Defendants had to conclusively
establish that these claims of the Petrobras Plaintiffs were not viable either because
the claims were barred by the reliance disclaimer or were derivative claims. See Tex.
R. Civ. P. 166a(c).
20
In their second sub-issue, the Petrobras Plaintiffs argue that the reliance
disclaimer cannot affect nine of their claims because reliance is not an element of
those claims: namely, declaratory relief, breach of fiduciary duty, aiding and abetting
breach of fiduciary duty, civil conspiracy as to breach of fiduciary duty, unjust
enrichment/money had and received, civil conspiracy as to “other claims,”
exemplary damages, attorney’s fees and costs, and joint-and-several liability of
PHRP. In their third sub-issue, the Petrobras Plaintiffs argue that even on the three
claims for which reliance is an element, the reliance disclaimer does not entitle the
Astra Defendants to summary judgment because it is unenforceable under
Schlumberger. They also contend that their claims are based on omissions, not
affirmative misrepresentations, so the reliance disclaimer does not apply. Finally,
they assert that the reliance disclaimer should not be enforced due to “the
surrounding facts and circumstances.”
The Astra Defendants attack the Petrobras Plaintiffs’ second sub-issue as a
“straw man” argument because they did not seek summary judgment on the nine
other “claims” based on the reliance disclaimer. As to the third sub-issue, the Astra
Defendants argue that the trial court properly applied the Schlumberger doctrine
when all the factors favor enforcement of the reliance disclaimer; the disclaimer also
covers nondisclosure claims; and this court should not create any public-policy
exception to the Schlumberger doctrine.
In their third amended petition, with regard to their claims for common-law
fraud, statutory fraud, and negligent misrepresentation, the Petrobras Plaintiffs
alleged that the Astra Defendants made false “representations and/or omissions”
either with knowledge of their falsity, or negligently, to induce the Petrobras
Plaintiffs to enter into the 2012 Settlement. Significantly, with regard to all three
claims, the Petrobras Plaintiffs alleged that they “reasonably relied to their detriment
21
on the omissions, misstatements [false statements], and/or misrepresentations” made
by the Astra Defendants.
The Petrobras Plaintiffs do not dispute that reliance is an essential element of
common-law fraud, statutory fraud, and negligent misrepresentation. They also do
not dispute—and the summary-judgment record confirms—that certain of the Forest
Oil factors clearly are present here: the disclaimer language was clear and
unequivocal, the terms of the contract were negotiated and not boilerplate, they were
represented by counsel, and the parties are knowledgeable in business matters. See
268 S.W.3d at 60. Instead, the Petrobras Plaintiffs argue that two factors weigh
against enforcing the disclaimer.
We turn first to the Petrobras Plaintiffs’ third sub-issue.
Whether during negotiations the parties specifically discussed the issue which
has become the topic of the subsequent dispute
The Petrobras Plaintiffs first argue that the matter in dispute was not
specifically negotiated, i.e., the parties did not specifically discuss the 2006 bribery
scheme and the Astra Defendants instead concealed it while they were negotiating
the 2012 Settlement. The Petrobras Plaintiffs point to evidence that the parties did
not have “specific discussions” about the 2006 SPA or “any potential bribery and
corruption related to the earlier 2006 transaction.” The Astra Defendants respond
that the parties did not need to specifically discuss the very facts of the alleged 2006
bribery scheme to meet this factor, and that “Petrobras was fully aware that it was
disclaiming reliance on any representations or disclosures relating to the mutual
releases, including the release of any claims relating to the to 2006 SPA.”
The Schlumberger doctrine properly can be applied whether the settlement
agreement at issue involves one known, current dispute, or older or future disputes,
whether known or unknown. See Forest Oil, 268 S.W.3d at 57–58 (applying
22
Schlumberger to parties’ settlement and rejecting plaintiff’s argument that “the
disclaimer [was] insufficiently specific to be applied to every representation made”).
Our court considered and rejected an argument similar to that made by the
Petrobras Plaintiffs in Texas Standard Oil & Gas, L.P. v. Frankel Offshore Energy,
Inc., 394 S.W.3d 753 (Tex. App.—Houston [14th Dist.] 2012, no pet.). There, we
held that although the plaintiff attempting to bring a fraudulent-inducement claim
was unaware of the defendant’s particular potential transaction to sell certain oil and
gas prospects (which subsequently took place) when it executed a settlement
agreement to terminate their business relationship relating to developing prospects,
this factor was met and the fraudulent-inducement release at issue was enforceable
under circumstances wherein the parties had discussed the broader “issue” of
whether the plaintiff had interests in various prospects. Id. at 773, 778. In so holding,
we explained:
We acknowledge that the present case seems to present an atypical
situation because the extra-contractual concealments forming the
grounds for Frankel’s fraudulent-inducement claim are the same
concealments forming, in part, the grounds for its
breach-of-fiduciary-duties claim. Thus, if the parties had discussed the
exact grounds on which Frankel based its present breach-of-fiduciary-
duties claim, there likely would not have been any fraudulent
inducement because Frankel would not have executed the Settlement
Agreement if it had known of the Probe transaction or at least that GTP
was concealing material information. However, the Forest Oil court did
not opine that the parties must have discussed the exact grounds that
form the basis of the subsequent dispute, in order to satisfy this factor.
See generally, 268 S.W.3d at 58. In fact, Frankel released all “known
and unknown” claims “which have accrued or may ever accrue to
[Frankel] . . . .”
Tex. Standard Oil, 394 S.W.3d at 772.
Our court again considered and rejected a similar argument in McLernon.
23
There, we held that a former executive’s assertion that he was fraudulently induced
to enter into a severance agreement was barred by a disclaimer of reliance. 347
S.W.3d at 330. In doing so, we rejected the executive’s argument that the parties did
not discuss the fraud claim (based on misrepresentations concerning repayment of a
loan to purchase stock) before execution of the severance agreement. Id. at 331. We
explained:
[T]he relevant fact under the first guideline is that the parties discussed
McLernon’s obligation to repay the loan and execution of the
replacement note because this issue is the topic of the present dispute.
The inquiry under this guideline cannot be whether they discussed the
fraudulent-inducement claim or whether he was aware of the
misrepresentations at issue. Axiomatically, if contracting parties
discussed a fraudulent-inducement claim and the complaining party
was aware of the material misrepresentations before signing the
agreement, there would be no such fraud claim because he could not
have been deceived into signing the agreement. The significant point
with respect to the Forest Oil factors is that McLernon was aware of
Dynegy’s specific representations concerning the topic of the present
dispute yet elected to disclaim reliance on those representations.
McLernon, 347 S.W.3d at 331.
In other words, we do not require that the parties discussed the specific factual
basis for the “fraud” concern to meet this portion of the Forest Oil factor.22 The
relevant inquiry is not whether the parties specifically discussed, the Petrobras
Plaintiffs were aware of, or the Astra Defendants disclosed the facts of the alleged
2006 bribery scheme, which surely would have given the Petrobras Plaintiffs a
reason not to execute the 2012 Settlement (and so they would not be bringing any
fraudulent-inducement claims), but rather whether the parties specifically discussed
22
The Petrobras Plaintiffs do not address this court’s holdings in Texas Standard Oil and
McLernon interpreting this factor. Nor do the cases relied on by the Petrobras Plaintiffs control
our analysis or otherwise persuade us.
24
the broader issue or topic of the existence and treatment of older claims, whether
known or unknown, such as those related to the 2006 SPA.
The summary-judgment record includes testimony by Winget, who
participated in the negotiations and signed the 2012 Settlement for the Astra
Defendants, that the parties discussed their intent for the agreement to be a “[t]otal
adios, you know, with the complete general release . . . absolute, complete never
come back, no matter what happened in the past.” According to Winget, the 2012
Settlement “was—in [his] nonlawyer language—let’s say capped by a mutual—
there’s a word for it. But it basically means no more litigation. That’s—mutual
disclaimer release, excuse me. And, you know, that was the end of it. Like we’d
never be here today . . . was the intent.” The record also includes a comparison of
drafts of the 2012 Settlement tending to demonstrate that the mutual release
provisions specifically were negotiated among the parties and ultimately revised to
expressly include “any claim arising out of or related to the 2006 SPA.” In addition,
in his affidavit, counsel for the Petrobras Plaintiffs acknowledged that the parties,
during negotiations, specifically discussed releasing claims “related to the 2006
purchase of 50% of PRSI” (albeit at the Astra Defendants’ insistence). Under these
circumstances, we conclude the summary-judgment evidence sufficiently supports
that during negotiations the parties specifically discussed the issue which has
become the topic of their subsequent dispute.
Whether the parties dealt with each other in an arm’s-length transaction
Next, the Petrobras Plaintiffs argue that the 2012 Settlement was not an
arm’s-length transaction because certain of the Astra Defendants owed fiduciary
duties to PRSI, PRSI’s shareholders Petrobras and Petrobras America, and PRSI
Trading. They contend that such duties to disclose were owed before, during, and
after the settlement negotiations, and therefore as a matter of law the 2012 Settlement
25
cannot have been an arm’s-length transaction. According to the Astra Defendants,
even assuming certain of them owed fiduciary duties to the Petrobras Plaintiffs
during the settlement negotiations, “that would not militate against enforcement of
the disclaimer.”
Schlumberger did not address this particular situation; there, the court
concluded there was no evidence that the parties were fiduciaries either as partners
or based on a confidential relationship. See 959 S.W.2d at 175–77. However, our
court in Texas Standard Oil directly considered whether a fraudulent-inducement
release in a settlement was unenforceable as a matter of law assuming the negotiating
parties were fiduciaries. 394 S.W.3d at 773–78.23 There, as here, the plaintiff argued
essentially that “the mere existence of [a] duty to disclose automatically vitiated any
fraudulent-inducement release.” Id. at 774. We rejected that either Schlumberger or
Forest Oil stood for such a proposition and refused to adopt such a blanket rule,
explaining:
[E]ven if execution of the Settlement Agreement was not entirely an
arm’s length transaction because GTP still owed Frankel some
fiduciary duty to disclose, existence of such fiduciary relationship did
not automatically vitiate the fraudulent-inducement release. . . .
Axiomatically, fiduciaries, like any other business associates, might
wish to ensure finality to their disputes. Thus, their expressed intent to
ensure finality, via a fraudulent-inducement release or disclaimer of
reliance, as well as their freedom to contract, should be accorded the
same respect as the intent of other parties. See [Forest Oil, 268 S.W.3d
at 60–61].
....
Accordingly, we disagree with Frankel's suggestion that a
fraudulent-inducement release between fiduciaries is per
se unenforceable simply because they generally owed each other a duty
23
Again, the Petrobras Plaintiffs do not discuss Texas Standard Oil.
26
to disclose.
Tex. Standard Oil, 394 S.W.3d at 774–76.
Under Texas Standard Oil, “the pertinent inquiry is whether, considering all
of the circumstances, existence of the fiduciary relationship vitiates a conclusion
that” the Petrobras Plaintiffs bindingly disclaimed their reliance. See id. at 776.
There, when all the other Forest Oil factors were met, we concluded:
These facts negate any notion that Frankel was somehow dependent on
GTP as its fiduciary to explain the fraudulent-inducement release or
that Frankel’s ability to understand the release was inhibited due to the
fiduciary relationship. Likewise, these facts demonstrate that,
irrespective of any fiduciary relationship, Frankel voluntarily assented
to the fraudulent-inducement release.
Tex. Standard Oil, 394 S.W.3d at 776. In doing so, we also considered it significant
that the plaintiff “was afforded the opportunity to question for itself GTP’s motives
in wishing to terminate FGP and own prospects free and clear of Frankel and whether
GTP was concealing information regarding its plans for the prospects; yet, Frankel
chose to execute the fraudulent-inducement release.” Id. (citing Forest Oil, 268
S.W.3d at 58). As an additional factor, we also considered that the parties “were
adverse litigants when they executed the Settlement Agreement.” Id. at 776–77. In
addition, “the fact the Settlement Agreement contains mutual fraudulent-inducement
releases supports a conclusion that each party knew the other party was protecting
its own interests.” Id. at 777. Finally, we considered the “additional factor mentioned
in Forest Oil”: that the settlement agreement at issue “terminated the parties’
relationship.” Tex. Standard Oil, 394 S.W.3d at 777; see Forest Oil, 268 S.W.3d at
58 (“A ‘once and for all’ settlement may constitute an additional factor urging
rejection of fraud-based claims . . . .”).
Here, we already have concluded that all the other Forest Oil factors were
27
met. As discussed above, the Petrobras Plaintiffs (represented by counsel and
sophisticated in business affairs) were aware of and specifically discussed the release
of claims related to the 2006 SPA. The parties were longtime adverse litigants, and
the Petrobras Plaintiffs understood that the Astra Defendants were representing their
own interests in negotiating the reliance disclaimer and that the Petrobras Plaintiffs
needed to evaluate for themselves whether the provision was in their best interests.
That the disclaimer of reliance was mutual supports the conclusion that all the parties
knew they needed to protect their own interests. Additionally, the parties entered the
2012 Settlement intending that it be the “absolute” and “complete” “end of” their
disputes. In sum, considering all the Forest Oil factors, we conclude that, “despite
any fiduciary relationship, sophisticated parties, represented by their own counsel,
negotiated and voluntarily agreed to clear and unequivocal, mutual provisions”
disclaiming any reliance on any representation of the opposing parties in executing
the 2012 Settlement. See Tex. Standard Oil, 394 S.W.3d at 777.
The Petrobras Plaintiffs’ additional arguments
The Petrobras Plaintiffs further argue their reliance-based claims are based on
omissions that are not mirror images of any affirmative misrepresentations. Thus, by
its terms, the reliance disclaimer does not apply to the Astra Defendants’ failure to
disclose their bribery scheme. The Astra Defendants respond that as in Schlumberger
the Petrobras Plaintiffs’ omission or nondisclosure allegations are simply the
converse of the alleged affirmative misrepresentations and also are covered by the
reliance disclaimer.
The Schlumberger court considered and rejected the plaintiffs’ argument that
even if the reliance disclaimer at issue precluded fraudulent-inducement claims
based on affirmative representations, it did not preclude fraud by nondisclosure
“because it does not disclaim reliance on Schlumberger’s non-disclosures.” 959
28
S.W.2d at 181–82 (agreeing with defendant and concluding that nondisclosures were
covered: “In short, had Schlumberger disclosed all the true facts about the project, it
would not have misrepresented the truth.”).
Here, in their third amended petition, the Petrobras Plaintiffs alleged the Astra
Defendants both “misrepresented and/or omitted facts concerning their criminal and
fraudulent conduct, including their payment of approximately $15 million in bribes
in connection with the initial purchase of 50% of PRSI and their offer to pay between
$80 million and $100 million in bribes to ‘solve the problem’ between the parties
and reach a settlement.” They further alleged that the Astra Defendants made
“voluntary or partial disclosures about the negotiation of the initial purchase of 50%
of PRSI, while affirmatively concealing their payment of $15 million in bribes and
conveying the false impression that the negotiation was a legitimate arm’s-length
transaction.” Under these circumstances, we conclude that Schlumberger applies.
See id.
Finally, the Petrobras Plaintiffs contend that “the summary judgment is
erroneous because the surrounding facts and circumstances do not justify enforcing
the Reliance Disclaimer” to insulate the Astra Defendants “from the consequences
of their criminal behavior.” The Astra Defendants respond that applying the
Petrobras Plaintiffs’ “proposed policy exception” to Schlumberger does not
“immunize” them from any criminal liability and instead would frustrate public
policy.
After considering all the circumstances here, we already have concluded that
the Forest Oil factors favor the enforceability of the reliance disclaimer. Moreover,
careful application of the Forest Oil factors adequately protects the public policies
at issue. Such analysis not only ensures that parties are protected “from
unintentionally waiving a claim for fraud,” Italian Cowboy Partners, Ltd. v.
29
Prudential Ins. Co. of Am., 341 S.W.3d 323, 332 (Tex. 2011), but also upholds and
preserves the ability of “knowledgeable parties” advised by “knowledgeable
counsel” to exercise their freedom of contract to enter “highly favored” settlement
agreements and hold others to their word, Forest Oil, 268 S.W.3d at 60–61. We
cannot conclude this case presents any “extreme circumstances” that preclude
applying the Schlumberger doctrine.
We overrule the Petrobras Plaintiffs’ third sub-issue.
Turning back to the Petrobras Plaintiffs’ second sub-issue, because we already
have concluded that the trial court properly granted the motions for summary
judgment regarding their claims for common-law fraud, statutory fraud, and
negligent misrepresentation based on the reliance disclaimer, certain claims also
were properly barred because their predicate claims were rejected. So, because the
Petrobras Plaintiffs’ claims for declaratory judgment, unjust enrichment/money had
and received, and civil conspiracy as to “other claims” were solely based on the
Astra Defendants’ alleged fraudulent conduct, the trial court properly granted the
motions for summary judgment on those claims. Therefore, the trial court properly
dismissed the Petrobras Plaintiffs’ claims for declaratory relief, unjust
enrichment/money had and received, and civil conspiracy as to “other claims.”
However, we also already have concluded that the trial court erred in granting
the motions for summary judgment on all the Petrobras Plaintiffs’ claims for breach
of fiduciary duty, aiding and abetting breach of fiduciary duty, and civil conspiracy
as to breach of fiduciary duty, and in granting the summary-judgment motions on
the Astra Defendants’ counterclaims for declaratory judgment tied to those claims.
Exemplary damages are available for breach of fiduciary duty. See Manges v.
Guerra, 673 S.W.2d 180, 184–85 (Tex. 1984). In addition, a party who conspires in
connection with a breach of fiduciary duty may be found jointly and severally liable
30
in appropriate circumstances. Cf. ERI Consulting Eng’rs, Inc. v. Swinnea, 318
S.W.3d 867, 881 (Tex. 2010). Finally, trial courts have discretion to award attorney’s
fees and costs under the Uniform Declaratory Judgment Act (UDJA) to any party,
whether that party prevailed or not, or was the plaintiff or defendant. See Tex. Civ.
Prac. & Rem. Code Ann. § 37.009; MBM Fin. Corp. v. Woodlands Operating Co.,
L.P., 292 S.W.3d 660, 669 (Tex. 2009) (“[T]he Declaratory Judgments Act allows
fee awards to either party in all cases.”). Here, the Petrobras Plaintiffs did not limit
their “claims” for exemplary damages, attorney’s fees and costs, and
joint-and-several liability of PHRP just to fraud. The Astra Defendants did not
conclusively demonstrate that they were entitled to summary judgment as a matter
of law on the Petrobras Plaintiffs’ claims for exemplary damages, attorney’s fees
and costs, and joint-and-several liability of PHRP. Therefore, the trial court erred in
granting the motions for summary on, and dismissing, those claims.
We sustain, in part, the Petrobras Plaintiffs’ second sub-issue.
c. Claims against individual Astra Defendants in their individual
capacities
In their fourth sub-issue, the Petrobras Plaintiffs argue that the individual
Astra Defendants were not entitled to summary judgment on tort claims alleged
against them in their individual capacities as opposed to in their capacities as
corporate representatives.24 Again, we already have concluded that the trial court
erred by granting the motions for summary judgment based on the release on all the
24
The longstanding rule in Texas is that “a corporate agent is personally liable for his own
fraudulent or tortious acts.” Miller v. Keyser, 90 S.W.3d 712, 717 (Tex. 2002). If a corporate agent
directs or participates in a tort during his employment, then he faces personal liability for the
tortious act. Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 375 (Tex. 1984).
Accordingly, regardless of whether the individual Astra Defendants performed the alleged tortious
acts as corporate agents, as a general matter, they can still face individual liability for those acts if
they prove to be tortious. See Miller, 90 S.W.3d at 717–18; Leyendecker, 683 S.W.2d at 375.
31
Petrobras Plaintiffs’ claims for breach of fiduciary duty, aiding and abetting breach
of fiduciary duty, and conspiracy as to breach of fiduciary duty, as well as their
claims for exemplary damages, attorney’s fees and costs, and joint-and-several
liability of PHRP.
We also already have concluded that the reliance disclaimer in the 2012
Settlement was valid and enforceable to bar the reliance-based claims included in
the Petrobras Plaintiffs’ claims for common-law fraud, statutory fraud, and negligent
misrepresentation, as well as the derivative claims of declaratory relief, unjust
enrichment/money had and received, and civil conspiracy as to “other claims.”
Certainly, the disclaimer is enforceable by AOT, Astra GP, Astra TradeCo, Astra
Oil, Astra Energy, PHRP, and Transcor Astra—all express parties to the 2012
Settlement Agreement. However, according to the Petrobras Plaintiffs, the reliance
disclaimer only references the individual Astra Defendants “in their corporate or
partnership capacities as agents of the parties to the Settlement Agreement” and
therefore does not entitle them to summary judgment in their individual capacities.
A traditional motion for summary judgment must “stand or fall on the grounds
expressly presented in the motion.” McConnell v. Southside Indep. Sch. Dist., 858
S.W.2d 337, 338, 341 (Tex. 1993) (“We conclude that grounds for summary
judgment must be expressly presented in the summary judgment motion itself.”); see
Tex. R. Civ. P. 166a(c). Summary judgment cannot be granted, or affirmed, on
grounds not presented in the motion. See Johnson v. Brewer & Pritchard, P.C., 73
S.W.3d 193, 204 (Tex. 2002). For example, our court has held that the trial court
erred in granting a motion for summary judgment when the motion addressed claims
brought by the appellant in his individual capacity but did not address claims the
appellant brought in his capacity as an independent co-executor on behalf of his
parents’ estates. Guest v. Cochran, 993 S.W.2d 397, 405–06 (Tex. App.—Houston
32
[14th Dist.] 1999, no pet.) (“Cochran simply cannot, ex post facto, legitimize a
summary judgment based on a motion that failed to address the co-executor’s causes
of action. Our mandate is clear—we cannot affirm a summary judgment on a ground
not included in the motion for summary judgment.”).
The Astra Defendants do not dispute that the Petrobras Plaintiffs brought tort
claims and claims derivative of those tort claims against the individual Astra
Defendants in their individual capacities. However, in their motions for summary
judgment, the Astra Defendants did not expressly present any ground or explain why
as a matter of law the individual Astra Defendants personally should be extended
the benefit of the reliance disclaimer.25
Under these circumstances, we sustain the Petrobras Plaintiffs’ fourth
sub-issue.
2. Declaratory judgment
Under the UDJA, “[a] person interested under a . . . written contract . . . may
have determined any question of construction or validity arising under the . . .
contract . . . and obtain a declaration of rights, status, or other legal relations
thereunder.” Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a). The UDJA “is
remedial; its purpose is to settle and to afford relief from uncertainty and insecurity
with respect to rights, status, and other legal relations; and it is to be liberally
construed and administered.” Id. § 37.002(b). A contract may be construed either
before or after a breach. Id. § 37.004(b). We review declaratory judgments under the
same standards as other judgments and decrees. Id. § 37.010. We look to the
25
Perhaps tellingly, in their response to this sub-issue, the Astra Defendants do not include
any discussion of the reliance disclaimer. We further note in section 5.18 the parties to the 2012
Settlement agreed that “there are no third-party beneficiaries to this Settlement Agreement, and
that the Parties have no intention of conferring third-party-beneficiary status on any person or
entity through this Settlement Agreement.”
33
procedure used to resolve the issue at trial to determine the standard of review on
appeal. See id. Because the trial court determined the challenged
declaratory-judgment issue through summary judgment, we review the propriety of
the trial court’s declarations under the same standards we apply to summary
judgments. Lidawi v. Progressive Cty. Mut. Ins. Co., 112 S.W.3d 725, 730 (Tex.
App.—Houston [14th Dist.] 2003, no pet.).
In their second issue, the Petrobras Plaintiffs argue “the trial court erred in
granting a declaratory judgment as to the effect of the Release on the Arbitration.”
The Petrobras Parties argue that the trial court cannot interfere with an arbitrator’s
jurisdiction; the effect of the release on the claims in the arbitration is a matter for
the tribunal, not the trial court; any argument that the 2006 SPA’s arbitration clause
has been superseded fails; and in any event, the release is unenforceable because the
2012 Settlement was procured by fraud.
The Petrobras Plaintiffs alleged that the trial court had subject-matter
jurisdiction over the dispute because the amount in controversy exceeded minimal
jurisdictional limits. See Tex. Const. art. V, § 8; Tex. Gov’t Code Ann. § 24.007.
They alleged that the 2012 Settlement contains “an exclusive venue provision which
provides that any lawsuit arising out of or related to the Settlement Agreement, or
the transactions contemplated therein, must be filed in Harris County.” In their
declaratory-relief claims, the Petrobras Plaintiffs alleged that actual controversies
existed regarding “the parties’ respective rights, duties, and obligations under the
Settlement Agreement” and sought declarations concerning the validity of the
contract pursuant to the UDJA. In their declaratory-judgment counterclaims, the
Astra Defendants likewise sought declarations concerning the validity and
enforceability of the 2012 Settlement, including the release, and that it barred claims
in the arbitration and other claims arising out of or related to the 2006 SPA. Texas
34
courts in declaratory-judgment actions regularly construe and determine the validity
of contracts, including release provisions, and how they affect parties.26
We already have construed the unambiguous language of the release in
concluding that the trial court erred in granting the motions for summary judgment
on all the Petrobras Plaintiffs’ claims for breach of fiduciary duty, aiding and
abetting breach of fiduciary duty, and conspiracy as to breach of fiduciary duty. The
trial court erred in rendering a take-nothing judgment on and in issuing a declaration
that the release bars all these claims. As discussed above, aside from the carve-out,
the language of the general mutual release is broad, which is permissible so long as
the release “mentions” the claim to be released. Keck, 20 S.W.3d at 698. The plain
language is clearly intended to release “any and all claims, demands, and causes of
action of whatever kind or character which the Petrobras Parties have, or may have
in the future, based on any acts or omissions, which known or unknown, that may
have occurred on or before the Effective Date, including without limitation . . . any
claim arising out of or related to the 2006 SPA.”
In their amended arbitration demand, which was attached to the Astra
Defendants’ amended summary-judgment motion, Petrobras America and Petrobras
alleged that AOT and Astra Oil “engaged in bribery and corruption in connection
with” the parties’ 2006 SPA and brought multiple claims, including declaratory
relief, aiding and abetting breach of fiduciary duty, unjust enrichment/money had
and received, breach of contract, common-law fraud, statutory fraud, negligent
misrepresentation, racketeering activity, exemplary damages, and attorney’s fees,
26
See Garza v. Bunting, No. 05-06-01307-CV, 2007 WL 1545937, at *4–8 (Tex. App.—
Dallas May 30, 2007, no pet.) (mem. op.) (affirming summary judgment in declaratory-judgment
action in which trial court construed unambiguous language of mutual release in settlement
agreement to bar counterclaims); Trinity Universal Ins. Co. v. Sweatt, 978 S.W.2d 267, 271 (Tex.
App.—Fort Worth 1998, no pet.) (“Construction and validity of contracts are the most obvious
and common uses of the declaratory judgment action.”).
35
costs, and expenses. All of these claims asserted in the arbitration demand fall within
the subject matter of the general release, even narrowly construed. Stated another
way, but for the existence of the 2006 SPA, Petrobras America and Petrobras would
not be bringing these claims in an arbitration against AOT and Astra Oil. In addition,
these claims do not fall within the carve-out of the release since they are not alleged
to arise out of “the alleged breach, enforcement, or interpretation” of the 2012
Settlement.27 We conclude that the claims asserted “in the ICDR Arbitration . . .
styled Petrobras America, Inc., et al. v. Astra Oil Trading NV, et al[.], Cause No.
01-16-0003-1149” therefore were “mentioned” within the broad language of the
mutual release and were properly barred.
The cases relied on by the Petrobras Plaintiffs for their argument that the trial
court could not issue its declaratory judgment without interfering with the
arbitrators’ jurisdiction do not persuade us that the trial court erred. Those cases are
distinguishable procedurally and factually; they involved whether a trial court should
compel arbitration and stay trial proceedings of a case brought pursuant to an
agreement containing an arbitration provision,28 or confirm an arbitration award
stemming from an agreement containing an arbitration provision.29 Here, the parties
27
In their amended arbitration demand, Petrobras America and Petrobras expressly
disavowed that their arbitration claims based on the 2006 SPA had anything to do with the 2012
Settlement: “To be clear, Claimants are not asserting in this arbitration any claims that arise out of
or relate to the Settlement Agreement. Instead, Claimants are parties to a separate lawsuit filed in
Harris County, Texas, in which they are asserting their claims that arise out of or relate to the
Settlement Agreement.”
28
See Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524 (2019); Epic Sys.
Corp. v. Lewis, 138 S. Ct. 1612 (2018); Feldman/Matz Interests, L.L.P. v. Settlement Capital
Corp., 140 S.W.3d 879 (Tex. App.—Houston [14th Dist.] 2004, orig. proceeding); Merrill Lynch,
Pierce, Fenner & Smith, Inc. v. McCollum, 666 S.W.2d 604 (Tex. App.—Houston [14th Dist.]
1984, writ ref’d n.r.e.); see also Metra United Escalante, L.P. v. Lynd Co., 158 S.W.3d 535 (Tex.
App.—San Antonio 2004, no pet.) (discussing Feldman/Matz).
29
See Babcock & Wilcox Co. v. PMAC, Ltd., 863 S.W.2d 225 (Tex. App.—Houston [14th
Dist.] 1993, writ denied).
36
brought declaratory-judgment claims and requested the trial court interpret and
either declare enforceable or invalidate a release in their settlement agreement that
does not contain an arbitration agreement.30
Next, the Petrobras Plaintiffs contend that the trial court’s declaration
“infringed” on the tribunal’s jurisdiction to determine the merits of the arbitration,
specifically, the affirmative defense of release. However, the trial court did not make
any declaration deciding any affirmative defense in the arbitration, but rather, after
construing the 2012 Settlement’s release and comparing it to the allegations brought
in a demand by Petrobras America and Petrobras, the trial court declared that the
release barred those claims.31
The Petrobras Plaintiffs also contend that any argument that the 2006 SPA’s
arbitration clause has been superseded fails. But the Astra Defendants did not make
this argument on summary judgment, and the trial court did not issue any declaration
that the 2006 SPA’s arbitration agreement was revoked or superseded by the 2012
Settlement. Again, the request for declaratory judgment asked the trial court to
construe and rule on whether the release in the 2012 Settlement was valid and barred
claims as asserted in the arbitration, as opposed to the validity of any arbitration
30
Indeed, no party submitted the 2006 SPA with, much less discussed the substance of the
arbitration agreement in, their summary-judgment briefing. The Petrobras Plaintiffs’ citations in
their brief to the 2006 SPA are to an exhibit attached to their counsel’s affidavit in opposition to
AOT’s and Astra Oil’s motion for supplemental relief enforcing the judgment. We consider
Petrobras America’s and Petrobras’s appeal from the trial court’s decision to grant post-judgment
supplemental relief below.
31
Again, the Petrobras Plaintiffs point to procedurally- and factually-distinct cases. In re
Jindal Saw Ltd., 264 S.W.3d 755 (Tex. App.—Houston [1st Dist.] 2008), subsequent mandamus
proceeding, 289 S.W.3d 827 (Tex. 2009), involved whether a trial court should compel arbitration
pursuant to an agreement containing an arbitration agreement. Klay v. United Healthgroup, Inc.,
376 F.3d 1092 (11th Cir. 2004), involved a federal district court’s decision to grant an injunction
under the federal All Writs Act to prevent the arbitration of claims, based on contracts involving
arbitration agreements, which arbitration already had been compelled, after the plaintiffs
subsequently dropped the arbitrable claims.
37
agreement or question of arbitrability.
Finally, we already have determined that, aside from those claims brought
against the individual Astra Defendants in their individual capacities, the trial court
properly granted the motions for summary judgment on the Petrobras Plaintiffs’
fraud-based and solely derivative claims based on the reliance disclaimer. Therefore,
we reject the Petrobras Plaintiffs’ argument that the release is unenforceable because
the 2012 Settlement was procured by fraud.
We overrule the Petrobras Plaintiffs’ second issue.
3. Attorney’s fees and costs
In their third and final issue in this appeal, the Petrobras Plaintiffs argue that
the trial court erred in awarding attorney’s fees and costs to the Astra Defendants
(except Mueller and Burla) under UDJA section 37.009. In any proceeding under
the UDJA, the court “may award costs and reasonable and necessary attorneys’ fees
as are equitable and just.” Tex. Civ. Prac. & Rem. Code Ann. § 37.009. The UDJA
“entrusts attorney fee awards to the trial court’s sound discretion, subject to the
requirements that any fees awarded be reasonable and necessary, which are matters
of fact, and to the additional requirements that fees be equitable and just, which are
matters of law.” Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). Although we
conclude that the trial court properly granted the motions for summary judgment on
the Petrobras Plaintiffs’ claims for declaratory relief, unjust enrichment/money had
and received, common-law fraud, statutory fraud, negligent misrepresentation, and
civil conspiracy as to “other claims,” we conclude that the trial court erred in
granting the motions on their claims for breach of fiduciary duty, aiding and abetting
breach of fiduciary duty, civil conspiracy as to breach of fiduciary duty, exemplary
damages, attorney’s fees and costs, and joint-and-several liability of PRHP. We also
conclude that the trial court erred in granting the summary-judgment motions on the
38
Petrobras Plaintiffs’ claims of declaratory relief, unjust enrichment/money had and
received, common-law fraud, statutory fraud, negligent misrepresentation, and civil
conspiracy as to “other claims” against the individual Astra Defendants in their
individual capacities. Although we conclude that the trial court properly granted the
motions for summary judgment on the Astra Defendants’ counterclaims for
declaratory relief concerning the validity of the 2012 Settlement, including the
release, and declaring that the release bars claims related to the 2006 SPA, including
those in the arbitration, we conclude that the trial court erred with regard to declaring
that the release bars “the claims asserted in this proceeding for Breach of Fiduciary
Duty, Aiding and Abetting Breach of Fiduciary Duty, and Civil Conspiracy–Breach
of Fiduciary Duty.” Because our disposition of this case on appeal substantially
affects the trial court’s judgment, reversal and remand is warranted so that the trial
court can address what attorney’s fees and costs, if any, should be awarded to the
Astra Defendants (except Mueller and Burla) under the UDJA. See Funes v.
Villatoro, 352 S.W.3d 200, 217 (Tex. App.—Houston [14th Dist.] 2011, pet.
denied).
We therefore resolve the Petrobras Plaintiffs’ third issue in their favor to this
extent.32
B. No. 14-18-00728-CV
After the trial court rendered its final judgment, AOT and Astra Oil filed a
motion for supplemental relief enforcing the judgment. AOT and Astra Oil requested
that Petrobras America and Petrobras be permanently enjoined from further pursuit
of the arbitration. Petrobras America and Petrobras opposed this request.
32
Because of our disposition of this issue, we do not address the Petrobras Plaintiffs’
arguments concerning duplication of nonrecoverable fees, lack of segregation, and that a fee award
is unjust. See Tex. R. App. P. 47.1.
39
The record does not indicate that the trial court held a hearing before granting
AOT’s and Astra Oil’s motion and issuing a permanent anti-suit injunction. AOT
and Astra Oil subsequently filed a motion to modify the injunction. After holding a
hearing,33 the trial court granted this motion and issued an amended injunction order,
which permanently enjoined “Petrobras and its officers, employees, agents,
representatives, attorneys and/or anyone acting in active concert or participation
with Petrobras” from “continuing to pursue” the arbitration. It is from this amended
permanent anti-suit injunction that Petrobras America and Petrobras appeal.
An anti-suit injunction is a unique and extraordinary remedy and will issue
“only in very special circumstances.” Golden Rule Ins. Co. v. Harper, 925 S.W.2d
649, 651 (Tex. 1996) (per curiam) (citing Christensen v. Integrity Ins. Co., 719
S.W.2d 161, 163 (Tex. 1986); Gannon v. Payne, 706 S.W.2d 304, 306 (Tex.
1986)).34 The Supreme Court of Texas has identified those circumstances as:
(1) addressing a threat to a court’s jurisdiction; (2) preventing the evasion of
important public policy; (3) preventing a multiplicity of suits; and (4) protecting a
party from vexatious or harassing litigation. Frost Nat’l Bank, 315 S.W.3d at 512;
Golden Rule, 925 S.W.2d at 651. An anti-suit injunction is a remedy to be employed
“sparingly” and only in the most “compelling” circumstances when “clear equity
33
The hearing also concerned AOT’s and Astra Oil’s motion to reconsider the request to
stay the arbitration, Petrobras America’s and Petrobras’s motion to dismiss under the TCPA, and
Petrobras America’s and Petrobras’s emergency motion to stay the original anti-suit injunction.
34
We are confronted with a permanent anti-suit injunction that the trial court issued post
judgment, not a pre-judgment temporary anti-suit injunction of the sort at issue in Golden Rule.
However, all parties on appeal engage the presumption that (at the least) Golden Rule applies. See
Wyrick v. Bus. Bank of Tex., N.A., 577 S.W.3d 336, 356 & n.14 (Tex. App.—Houston [14th Dist.]
2019, no pet.). The parties disagree over whether AOT and Astra Oil also had to establish the
traditional factors for a permanent injunction. See 1717 Bissonnet, LLC v. Loughhead, 500 S.W.3d
488, 500 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“To obtain a permanent injunction, a
party must ordinarily show (1) a wrongful act, (2) imminent harm, (3) an irreparable injury, and
(4) the absence of an adequate remedy at law.”).
40
demands” it and when required to prevent an “irreparable miscarriage of justice.”
See Golden Rule, 925 S.W.2d at 651; Gannon, 706 S.W.2d at 306–07. The party
seeking the injunction bears the burden to demonstrate that a clear equity is present.
Christensen, 719 S.W.2d at 163. We review a trial court’s anti-suit injunction under
an abuse-of-discretion standard. Gannon, 706 S.W.2d at 305; see Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
Petrobras America and Petrobras challenge the amended permanent anti-suit
injunction in three issues:
1. The injunction against the arbitration proceeding should be
vacated because the trial court did not have authority to interfere
in the two-year-old arbitration proceeding.
2. The injunction against the arbitration should be vacated because
Astra did not carry its burden to establish its entitlement to an
anti-suit injunction.
3. The injunction against the arbitration should be vacated because
the Amended Arbitration Injunction is legally deficient.
We conclude that issue two is dispositive.
Petrobras America and Petrobras argue that the trial court abused its discretion
because AOT and Astra Oil did not establish the Golden Rule factors for an anti-suit
injunction and the traditional elements required to show entitlement to a permanent
injunction.35 Petrobras America and Petrobras contend that “[t]hese elements ‘must
be established by competent evidence,’ and the proof required ‘may not be made by
affidavit.’” They contend that AOT and Astra Oil “did not submit any ‘competent
evidence’” and “established none of the required elements.”
“[A] trial court has no discretion to grant injunctive relief . . . without
supporting evidence.” Operation Rescue-Nat’l v. Planned Parenthood of Hous. &
35
See supra note 34.
41
Se. Tex., 975 S.W.2d 546, 560 & n.56 (Tex. 1998). An applicant for injunction must
establish its probable right to recovery and a probable injury by competent evidence
adduced at a hearing. See Millwrights Local Union No. 2484 v. Rust Eng’g Co., 433
S.W.2d 683, 686 (Tex. 1968). A sworn petition is not evidence, nor can the proof
required to support issuance of an injunction be made by affidavit absent agreement
of the parties. See id. at 686–87.
The trial court in its amended permanent anti-suit injunction stated that it was
granting AOT’s and Astra Oil’s motion after considering it and “the evidence
submitted therewith.” However, the record contains no competent evidence adduced
at the hearing. AOT and Astra Oil did not present any sworn witnesses or introduce
any exhibits into evidence at the August 17, 2018 hearing. Nor does the record reflect
the parties agreed that AOT and Astra Oil could make their proof by affidavit.
AOT and Astra Oil respond that Petrobras America and Petrobras committed
briefing waiver by not citing to the record. See Tex. R. App. P. 38.1(i) (“The brief
must contain a clear and concise argument for the contentions made, with
appropriate citations to authorities and to the record.”). We do not agree. Perhaps
Petrobras America and Petrobras could have cited to the hearing transcript to show
that it contained no adduced evidence. But AOT and Astra Oil do not dispute, and
the record confirms, that there was no hearing on their original motion for
supplemental relief enforcing judgment and that the trial court’s hearing on their
motion for amended permanent anti-suit injunction was nonevidentiary.
AOT and Astra Oil next argue that the trial court “was entitled to rely on the
determinations embodied in the Final Judgment and the undisputed facts concerning
the Arbitration.” However, AOT and Astra Oil do not explain how, and we cannot
conclude, the final judgment “embodied” any factual determinations regarding
AOT’s and Astra Oil’s alleged entitlement to a permanent anti-suit injunction. In
42
addition, their cited cases do not control.36
We conclude that the trial court abused its discretion in issuing the amended
permanent anti-suit injunction.37 Because there was legally-insufficient evidence to
support the trial court’s amended permanent anti-suit injunction, we sustain
Petrobras America and Petrobras’s second issue in appellate case number 14-18-
00728-CV.38 Accordingly, we reverse the trial court’s August 21, 2018 amended
order granting supplemental relief enforcing judgment in the form of a permanent
anti-suit injunction and render judgment that the order is dissolved.
C. No. 14-18-00793-CV
This TCPA39 appeal, see TCPA § 27.008, involves the same parties as
appellate case number 14-18-00728-CV. On August 13, 2018, Petrobras America
and Petrobras filed a motion to dismiss under the TCPA AOT’s and Astra Oil’s
motion for supplemental relief enforcing judgment and motion for amended order in
36
The trial court did not render the permanent anti-suit injunction based on the
unobjected-to findings of a special master. Cf. Kim v. Bd. of Trustees of Korean Christian Church
of Hous., No. 01-08-00970-CV, 2010 WL 2220591, at *6–7 (Tex. App.—Houston [1st Dist.] June
3, 2010, pet. denied) (mem. op.) (“Because there were no disputed facts, we conclude the trial
court did not abuse its discretion by issuing the permanent injunction without holding an
evidentiary hearing.”). Moreover, Petrobras America and Petrobras opposed AOT’s and Astra
Oil’s request for a permanent anti-suit injunction and disputed that they could demonstrate facts
entitling them to one. AOT’s and Astra Oil’s other cited case did not consider this precise issue,
but rather disposed of a conclusory-summary-judgment-evidence argument on briefing waiver.
See Yazdchi v. Unauthorized Practice of Law Comm., No. 01-09-00065-CV, 2010 WL 2650563,
at *3–4 (Tex. App.—Houston [1st Dist.] July 1, 2010, no pet.) (mem. op.).
37
See Millwrights, 433 S.W.2d at 687; Ron v. Ron, No. 14-18-00710-CV, 2020 WL
3467301, at *4 (Tex. App.—Houston [14th Dist.] June 25, 2020, no pet. h.) (citing Millwrights
and concluding that trial court abused its discretion in issuing anti-suit injunction); Shamoun &
Norman, LLP v. Yarto Int’l Grp., LP, 398 S.W.3d 272, 284 (Tex. App.—Corpus Christi 2012, pet.
dism’d) (op. on reh’g) (same).
38
Because we conclude that the trial court abused its discretion in issuing the amended
permanent anti-suit injunction and reverse and render based on this issue, we do not address
Petrobras America’s and Petrobras’s other two issues. See Tex. R. App. P. 47.1.
39
See supra note 3.
43
the form of an anti-suit injunction. See id. § 27.003. Petrobras America and Petrobras
argued that AOT’s and Astra Oil’s motions were “legal actions” based on, related
to, or in response to communications made by Petrobras America and Petrobras in
the course of the arbitration—their “right to petition.” Petrobras America and
Petrobras requested dismissal unless AOT and Astra Oil established by clear and
specific evidence a prima facie case on each essential element of their claims for
injunctive relief.
AOT and Astra Oil responded that the TCPA was not applicable because it
was intended to protect against meritless legal actions in retaliation for a party’s
exercising its First Amendment rights, Astra’s post-judgment requests for an
anti-suit injunction were not “legal actions” within the meaning of the TCPA, and
Petrobras America’s and Petrobras’s post-judgment motion was frivolous and
untimely. After holding a hearing,40 the trial court, without providing its reasoning,
signed an order on August 28, 2018, denying Petrobras America’s and Petrobras’s
motion to dismiss under the TCPA.41
The TCPA provides a procedure for dismissing meritless suits that are based
on the defendant’s exercise of the rights of free speech, petition, or association as
defined in the statute. See id. Under the TCPA, “[i]f a legal action is based on, relates
to, or is in response to a party’s exercise of the right of free speech, right to petition,
or right of association, that party may file a motion to dismiss the legal action.” Id.
§ 27.003(a). In pertinent part, the TCPA defines the “exercise of the right to petition”
as “a communication in or pertaining to . . . an official proceeding, other than a
judicial proceeding, to administer the law.” Id. § 27.001(4)(A)(ii). The TCPA
40
See supra note 33.
41
In this order, the trial court also denied AOT’s and Astra Oil’s request for court costs
and reasonable attorney’s fees. AOT and Astra Oil did not appeal the order.
44
defines a “legal action” as “a lawsuit, cause of action, petition, complaint, cross-
claim, or counterclaim or any other judicial pleading or filing that requests legal or
equitable relief.” Id. § 27.001(6). A defendant wanting to take advantage of the
statute must file a timely motion: “A motion to dismiss a legal action under this
section must be filed not later than the 60th day after the date of service of the legal
action. The court may extend the time to file a motion under this section on a
showing of good cause.” Id. § 27.003(b).
We review the trial court’s denial of Petrobras America’s and Petrobras’s
motion to dismiss de novo. See Rehak Creative Servs. v. Witt, 404 S.W.3d 716, 725
(Tex. App.—Houston [14th Dist.], no pet.), disapproved on other grounds by In re
Lipsky, 460 S.W.3d 579 (Tex. 2015). In doing so, we “make[] an independent
determination and appl[y] the same standard used by the trial court in the first
instance.” Id. at 726. Application of this standard usually involves a “two-step”
analysis in which we determine (1) whether the defendant has shown, by a
preponderance of the evidence, that the plaintiff’s legal action is based on, relates to,
or is in response to the defendant’s exercise of the right of free speech, to petition,
or of association; and if so, (2) whether the plaintiff has shown, by clear and specific
evidence, a prima facie case for each essential element of the claim in question.
Lipsky, 460 S.W.3d at 586–87 (citing TCPA § 27.005(b), (c)).
On appeal, Petrobras America and Petrobras argue in their first issue that they
met their burden to prove the TCPA applied because AOT’s and Astra Oil’s
“requests for injunctive relief were ‘legal actions . . . based on, relate[d] to, or . . . in
response to’ [Petrobras America’s and] Petrobras’s exercise of [their] right to
petition.”42 They further contend in their second issue that AOT and Astra Oil “failed
42
The portion of the statute’s definition of “legal action” relied on by Petrobras America
and Petrobras is the catch-all provision, which includes “any other judicial pleading or filing that
45
to present a prima facie case on each element of [their] claim[s] and thus the trial
court erred in refusing to dismiss [AOT’s and] Astra [Oil]’s requests for injunctive
relief.”
Because it is dispositive, we first address AOT’s and Astra Oil’s contention
that the trial court did not err in denying Petrobras America’s and Petrobras’s TCPA
motion to dismiss because it was untimely filed.43 AOT and Astra Oil argue that
even if their post-judgment request for an anti-suit injunction constituted a “legal
action,” it “did not add a new claim or seek new relief beyond what had already been
requested” as “first asserted in Astra’s 2016 filings” and thus “was not a ‘legal
action’ that would reset the long-passed 60-day statutory deadline for a TCPA
motion to dismiss.” We agree.44
One of the overarching purposes of the TCPA is to provide an expedited
dismissal procedure for lawsuits that are based on, related to, or in response to the
exercise of certain statutorily-protected rights. See, e.g., id. at 586 (“The Act
requests legal or equitable relief.” TCPA § 27.001(6).
43
We disagree with Petrobras America’s and Petrobras’s contention in their reply brief that
AOT and Astra Oil only raise timeliness for the first time on appeal and thus waived the issue.
AOT and Astra Oil raised timeliness in their response: “Had Petrobras actually believed that its
right to pursue the Arbitration was a First Amendment right and a stay of the Arbitration justified
an anti-SLAPP motion, the time to have challenged that was prior to the entry of the Final
Judgment, which declared that Petrobras’ Arbitration claims were barred, or prior to the entry of
the Order, which enforced the Final Judgment by staying the Arbitration.” And the record of the
hearing reflects that Petrobras America and Petrobras addressed the “timing issue.” We further
disagree that by “effectively conceding” timeliness, AOT and Astra Oil “denied” Petrobras
America and Petrobras the opportunity to argue good cause for an extension under section
27.003(b).
44
In our analysis, we assume without deciding that exercising the right to petition could
include communications in an arbitration proceeding. We further assume without deciding that a
post-judgment request for anti-suit injunctive relief could qualify as a “legal action” under the
applicable 2013 version of the TCPA. However, we note under the 2019 version of the TCPA, the
definition of “legal action” expressly excludes “post-judgment enforcement actions.” See Tex. Civ.
Prac. & Rem. Code Ann. § 27.001(6)(C).
46
provides a special procedure for the expedited dismissal of such suits [that fall within
the TCPA’s purview].”); Jordan v. Hall, 510 S.W.3d 194, 198 (Tex. App.—Houston
[1st Dist. 2016, no pet.) (noting that it is “well settled” that purpose of TCPA is to
allow defendant “early in the lawsuit” to seek dismissal of claims that implicate
certain protected rights (citing Paulsen v. Yarrell, 455 S.W.3d 192, 197 (Tex.
App.—Houston [1st Dist.] 2014, no pet.))); Miller Weisbrod, L.L.P. v. Llamas-
Soforo, 511 S.W.3d 181, 193 (Tex. App.—El Paso 2014, no pet.) (“It is evident that
the Legislature intended to effectuate the purpose of the TCPA by ensuring that
courts will dismiss SLAPP suits quickly and without the need for prolonged and
costly proceedings.”). Thus, Petrobras America’s and Petrobras’s motion to dismiss
under the TCPA needed to be filed not later than the 60th day after the date of service
of AOT’s and Astra Oil’s “legal action” that was “based on, relate[d] to, or [was] in
response to” such pursuit of arbitration. See TCPA § 27.003. But Petrobras America
and Petrobras did not file their motion to dismiss under the TCPA until
approximately two years after AOT and Astra Oil filed their initial “legal action” in
response to Petrobras America’s and Petrobras’s exercise of their right to petition in
the arbitration.
Here, the record reflects that Petrobras America and Petrobras filed their
original demand for arbitration on July 29, 2016. In both AOT’s and Astra Oil’s
original and first amended counterclaims, filed and served on August 8 and August
24, 2016, respectively, they sought a declaration that the 2012 Settlement was “valid,
binding and enforceable . . . including . . . a declaration that the Release given by the
‘Petrobras Parties’ in Section 5.11 . . . is enforceable and binding and bars the claims
sought to be asserted in the Demand and any other claims arising out of or related to
the 2006 SPA.”45 In their motion to stay the arbitration, filed and served September
45
In August 2016, AOT and Astra Oil also brought breach-of-contract counterclaims
47
1, 2016, AOT and Astra Oil similarly alleged that section 5.11 of the 2012 Settlement
“precludes . . . the substantive claims that Petrobras seeks to make in the
Arbitration.” In part, because “Petrobras has released all of its substantive claims
relating to the 2006 SPA, which necessarily constitutes a release of any right to
arbitrate any of the released claims,” AOT and Astra Oil requested that the trial court
“permanently stay the Arbitration.”
As discussed above, AOT and Astra also successfully moved for summary
judgment on this portion of their declaratory-judgment counterclaims. The trial
court’s final judgment, signed June 12, 2018, expressly included a declaration that
the section-5.11 release was “valid, enforceable and binding” and “bars . . . the
claims sought to be asserted by Petrobras in the ICDR Arbitration commenced by
Petrobras and styled Petrobras America, Inc., et al. v. Astra Oil Trading NV, et al[.],
Cause No. 01-16-0003-1149.” In their motion for supplemental relief enforcing the
judgment in the form of an anti-suit injunction, filed and served July 10, 2018, AOT
and Astra Oil sought to restrain Petrobras America and Petrobras “from continuing
to pursue [their] released claims in the Arbitration.” In their motion for an amended
order, filed and served August 9, 2018, AOT and Astra Oil continued to request that
the arbitration come to a “complete stop.”
Petrobras America and Petrobras argue that the “very basis” for AOT’s and
Astra Oil’s post-judgment requests for anti-suit injunctive relief involved “new
claims” and “new facts.” But an amended pleading that does not add new parties or
claims does not restart the deadline for filing a motion to dismiss under the TCPA.
Paulsen, 455 S.W.3d at 197; see Bacharach v. Garcia, 485 S.W.3d 600, 602–03
(Tex. App.—Houston [14th Dist.] 2016, no pet.). Only an amended petition asserting
directed at Petrobras America’s and Petrobras’ pursuit of arbitration, which they dismissed. See
supra note 5.
48
claims based upon new factual allegations may reset a TCPA deadline as to the
newly added substance. Jordan, 510 S.W.3d at 198.
Under these circumstances, we cannot conclude that the Astra Defendants’
post-judgment request seeking an anti-suit injunction to enforce an underlying
declaratory judgment amounts to bringing a new claim for purposes of resetting the
TCPA clock.46 From the time Petrobras America and Petrobras filed their original
demand for arbitration in July 2016, they pursued their right to petition through
communications in the arbitration. From the time AOT and Astra Oil filed their
declaratory-judgment counterclaims in August 2016, to when they moved to stay the
arbitration in September 2016, to when they sought to enforce the trial court’s final
declaratory judgment based on such counterclaims through a post-judgment
permanent anti-suit injunction as late as July and August 2018, they alleged and
argued that Petrobras America’s and Petrobras’s pursuit of the arbitration was
released, barred, and should not continue. While AOT’s and Astra Oil’s motions for
supplemental relief enforcing the judgment in the form of an anti-suit injunction may
have alleged additional facts concerning Petrobras America’s and Petrobras’s most
recent communications in the arbitration, the substantive allegation underlying their
motions was the same as their previous filings—that Petrobras America’s and
46
We disagree with Petrobras America and Petrobras’s position in its reply brief that just
because this court held they had an adequate remedy by appeal from the trial court’s permanent
anti-suit injunction, see In re Petrobras Am. Inc., No. 14-18-00801-CV, 2018 WL 4700043, at *2
(Tex. App.—Houston [14th Dist.] Sept. 25, 2018, orig. proceeding) (mem. op.) (per curiam), that
we already rejected any argument that AOT’s and Astra Oil’s request for such injunctive relief did
not qualify as a claim. Nor do we find their cited cases controlling under these circumstances. See
Hicks v. Group & Pension Adm’rs, Inc., 473 S.W.3d 518, 527 (Tex. App.—Corpus Christi 2015,
no pet.) (TCPA motion was timely as to new claims when plaintiff in amended petition added
“new claims . . . for conspiracy and joint enterprise and coercion of a public servant”); James v.
Calkins, 446 S.W.3d 135, 146 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (“[T]he
amended petition . . . included substantively different factual allegations, and all of the causes of
action alleged in the amended petition were new causes of action.”).
49
Petrobras’s pursuit of arbitration should be barred by the 2012 Settlement’s release.47
We therefore conclude there is no compelling basis or reason to reset the
TCPA clock. This result comports with the legislative intent that suits be dismissed
under the TCPA, if at all, early in the litigation. It does not unduly restrict the rights
of either the plaintiffs or the defendants. Finally, it preserves the 60-day deadline
mandated by the legislature. Because we conclude that Petrobras America’s and
Petrobras’s TCPA motion to dismiss AOT’s and Astra Oil’s motions for
supplemental relief enforcing judgment in the form of an anti-suit injunction was not
timely filed, we need not proceed in the TCPA analysis. See Tex. R. App. P. 47.1;
Maldonado v. Franklin, No. 04-18-00819-CV, 2019 WL 4739438, at *6 (Tex.
App.—San Antonio Sept. 30, 2019, no pet.) (mem. op.).
Accordingly, we conclude that the trial court did not err by denying Petrobras
America’s and Petrobras’s TCPA motion to dismiss. We therefore affirm the trial
court’s August 28, 2018 amended order denying Petrobras America’s and
Petrobras’s motion to dismiss under the TCPA.
III. CONCLUSION
In appellate case number 14-18-00728-CV, we reverse the trial court’s August
21, 2018 amended order granting supplemental relief to AOT and Astra Oil
enforcing the judgment in the form of a permanent anti-suit injunction and render
judgment that the order is dissolved.
In appellate case number 14-18-00793-CV, we affirm the trial court’s August
47
See Mancilla v. Taxfree Shopping, Ltd, No. 05-18-00136-CV, 2018 WL 6850951, at *4
(Tex. App.—Dallas Nov. 16, 2018, no pet.) (mem. op.) (“But the restrictions on communications
and association sought by TFS in the second amended petition were identical or similar to the
restrictions it sought in the original petition. Thus, appellants’ alleged need for protection under
the TCPA motion was apparent as of the original petition.”).
50
28, 2018 amended order denying Petrobras America’s and Petrobras’s TCPA motion
to dismiss.
In appellate case number 14-18-00798-CV, we reverse the trial court’s June
12, 2018 final judgment. While this court is authorized to render the judgment that
the trial court should have rendered, under circumstances when remand is necessary
for additional proceedings and for efficiency’s sake, we remand with instructions for
the trial court to render partial summary judgment in accordance with our judgment
and conduct such additional proceedings. See Tex. R. App. P. 43.2, 43.3.
/s/ Charles A. Spain
Justice
Panel consists of Justices Christopher, Spain, and Poissant.
51