Supreme Court of Texas
══════════
No. 20-0932
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Transcor Astra Group S.A., et al.,
Petitioners,
v.
Petrobras America Inc., et al.,
Respondents
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
═══════════════════════════════════════
Argued January 12, 2022
JUSTICE BOYD delivered the opinion of the Court.
This dispute arises from a billion-dollar break-up between two
large corporations engaged in the international petroleum business. The
break-up resulted in numerous claims and lawsuits, which the parties
ultimately resolved through a comprehensive settlement agreement.
One party later filed both this suit and a separate arbitration
proceeding, asserting that the other party’s extensive corrupt and
criminal conduct, along with its failure to disclose that conduct prior to
the settlement agreement, renders the settlement agreement and the
parties’ earlier agreement unenforceable. The trial court granted
summary judgment for the defendant, holding that the settlement
agreement—and, in particular, its release provisions and a disclaimer
of reliance—bars the claims asserted both in this suit and in the
arbitration proceeding. The court of appeals affirmed in part and
reversed in part, and both parties petitioned for our review. Because we
agree with the trial court that the parties fully and finally resolved the
current claims through their comprehensive settlement agreement, we
reverse and render judgment reinstating the trial court’s final
judgment.
I.
Background
Petrobras1 and Astra2 are international corporations engaged in
the petroleum industry. In 2006, they entered into a Stock Purchase and
Sale Agreement that resulted in a joint venture in which each company
owned half the interests in a Texas oil refinery. 3 The parties quickly
became embroiled in numerous disputes, resulting in 2009 in an
arbitration award4 that terminated their joint venture and required
1We generally use “Petrobras” to refer to one or more related entities
including Petróleo Brasileiro S.A. and Petrobras America Inc.
2 We generally use “Astra” to refer to one or more entities and
individuals related to and aligned with Transcor Astra Group.
3 The parties formed a new corporation, Pasadena Refining System,
Inc., to serve as the refinery’s owner. Each party owned fifty percent of PRSI’s
shares. The parties also formed and became equal partners in PRSI Trading
Company, LP, to supply feedstocks to the refinery.
4 The stock-purchase agreement contained an arbitration clause
requiring the parties to arbitrate “any claim of fraud, misrepresentation or
2
Astra to sell its fifty-percent interest to Petrobras. Petrobras accepted
the interest but then failed to pay Astra the $640 million purchase price.
The parties’ relationship soon disintegrated into a dozen or more
separate lawsuits and disputes. By 2011, Astra obtained judgments
against Petrobras totaling more than $750 million and had other
pending claims demanding $400 million more.
The parties engaged in extended negotiations and reached a
comprehensive settlement agreement in 2012. As part of the 2012
settlement agreement, Petrobras agreed to pay Astra over $820 million
to satisfy all the judgments and pending claims and each party agreed
to release any and all claims against the other.
Petrobras alleges it later discovered that Astra engaged in
substantial corruption to convince Petrobras to accept the 2006 stock-
purchase agreement and the 2012 settlement agreement on terms that
were highly favorable to Astra. Specifically, Petrobras alleges that
Astra’s representatives paid $15 million to bribe certain Petrobras
officials to agree to the 2006 stock-purchase agreement and then offered
other bribes totaling $80–$100 million to “solve the problem” during the
settlement negotiations. Unlike the bribes paid in connection with the
2006 stock-purchase agreement, Petrobras does not allege that anyone
accepted the bribes offered in connection with the 2012 settlement
agreement.
fraudulent inducement” and “any question of validity or effect of [the]
Agreement including [the arbitration] clause.”
3
In 2016, Petrobras initiated two legal proceedings against Astra.
First, Petrobras5 filed this suit against Astra6 and several of its
employees,7 asserting that the defendants committed fraud (including
common-law fraud and statutory fraud) and negligent
misrepresentation and breached fiduciary duties by offering bribes and
then failing to disclose the offers during the settlement negotiations.
Petrobras included derivative claims for declaratory judgment,
conspiracy, aiding and abetting, unjust enrichment, and exemplary
damages and attorney’s fees, and sought to invalidate the 2012
settlement agreement and render it unenforceable. Second, because the
2006 stock-purchase agreement included a clause requiring binding
arbitration, Petrobras initiated an arbitration proceeding to invalidate
the 2006 stock-purchase agreement based on the bribes allegedly paid
in connection with that agreement.
Astra filed counterclaims in the lawsuit, seeking a judgment
declaring that both agreements are valid and enforceable and that the
settlement agreement bars the claims Petrobras asserted in the lawsuit
and the arbitration proceeding. Astra asserted that Petrobras released
5The plaintiffs were Petrobras America Inc., Petróleo Brasiliero S.A.-
Petrobras, Pasadena Refining System, Inc., PRSI Trading LLC, and PRSI Real
Property Holdings, LLC.
6 The corporate defendants were 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 Refinery Holding Partnership, and
AOT Bis B.V.
7The individual defendants were Alberto Feilhaber, Clifford L. Winget,
III, 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.
4
its breach-of-fiduciary-duty claims, as well as the claims it asserted in
the arbitration proceeding, as part of the settlement agreement. And
Astra asserted that Petrobras could not rely on Astra’s alleged fraud to
undo the 2012 settlement agreement because Petrobras expressly
disclaimed any reliance on any of Astra’s representations leading up to
that agreement.
Astra filed a series of summary-judgment motions based on the
release and the disclaimer of reliance.8 The trial court granted those
motions and, in June 2018, signed a final judgment ordering that
Petrobras take nothing on its claims. The judgment declared that the
2012 settlement agreement and the release contained within it are valid,
binding, and enforceable and that they bar Petrobras’s claims, including
the claims asserted in the arbitration proceeding. The judgment also
awarded Astra about $1.3 million in attorney’s fees and costs.
Petrobras appealed the final judgment,9 and the court of appeals
reversed. 633 S.W.3d 606 (Tex. App.—Houston [14th Dist.] 2020). The
court held that Petrobras released its fiduciary-duty claims to the extent
they relate to the 2006 stock-purchase agreement but not to the extent
8 The Astra defendants first moved for summary judgment in response
to Petrobras’s original petition. They later supplemented their motions in
response to Petrobras’s first-amended, second-amended, and third-amended
petitions. The trial court ultimately granted summary judgment on all claims
in favor of all the Astra defendants.
9 Petrobras also appealed two post-judgment orders, one granting
Astra’s motion for an anti-suit injunction to prohibit further proceedings in the
arbitration and one denying Petrobras’s motion to dismiss that motion under
the Texas Citizens Participation Act. The court of appeals consolidated the
three appeals for argument, but these other two appeals are not at issue in this
Court.
5
they relate to the negotiation and signing of the 2012 settlement
agreement. Id. at 621. The court also held that the settlement
agreement’s reliance disclaimer bars Petrobras’s fraud claims against
the Astra entities but not the fraud claims against the individual
defendants in their individual capacities. Id. at 629–30. It held that the
release bars Petrobras’s remaining claims (for conspiracy, aiding and
abetting, unjust enrichment, and exemplary damages) to the extent they
are derivative of the fraud claims. Id. at 628. Finally, the court reversed
the award of attorney’s fees and costs. Id. at 633–34. It remanded the
case to the trial court with instructions to render partial summary
judgment in favor of the Astra entities and the individual defendants
“as limited to their corporate capacities” and to conduct further
proceedings on the remaining claims. Both Astra and Petrobras
petitioned this Court for review.
II.
Release of the Fiduciary-Duty Claims
We begin by considering Petrobras’s claims attacking the 2012
settlement agreement on the ground that the Astra defendants breached
their fiduciary duties by paying bribes to obtain the 2006 stock-purchase
agreement, offering bribes when negotiating the 2012 settlement
agreement, and failing to disclose those actions to Petrobras. Petrobras
alleges the individual Astra defendants owed fiduciary duties to
Petrobras during the parties’ settlement negotiations because they
served as officers and directors of the joint-venture entities the parties
created when they began their joint venture in 2006. And, according to
Petrobras, the remaining Astra defendants knew about the bribery
6
offers and conspired with and aided and abetted the individual
defendants to breach their fiduciary duties.
Astra obtained summary judgment dismissing these claims on
the ground that Petrobras released them when it entered into the 2012
settlement agreement. The 2012 settlement agreement includes broad
releases in which each party released and discharged the other parties
from “any and all claims, demands, and causes of action of whatever
kind or character, which the . . . 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 agreement’s effective date. The agreement
expressly states that the release should be “construed as the broadest
type of general release” and includes, “without limitation,” all claims
connected with the parties’ then-pending disputes, all claims related to
the 2006 stock-purchase agreement, all claims “growing out of, or
connected in any way with, the Astra Parties’ dealings with the
Petrobras Parties,” and all claims based on activities alleged to violate
foreign or domestic laws or administrative rules.
Petrobras does not dispute that this language is broad enough to
release the breach-of-fiduciary-duty claims it asserts against Astra in
this case. But the 2012 settlement agreement also provides that,
“[n]otwithstanding anything to the contrary,” the released claims “shall
not include any and all claims . . . arising out of, related to, or connected
in any way with the alleged breach, enforcement, or interpretation” of
the settlement agreement. Petrobras argues, and the court of appeals
agreed, that—to the extent the fiduciary-duty claims sought to
invalidate the 2012 settlement agreement (as opposed to the 2006 stock-
7
purchase agreement)—the claims fell within this “notwithstanding”
provision because they involved “acts or omissions of the Astra
defendants in connection with the negotiation and signing of the 2012
Settlement and sought to limit and undo payments made pursuant to
that agreement.” 633 S.W.3d at 621.
We do not agree that Petrobras’s fiduciary-duty claims fall within
the “notwithstanding” provision. The provision states that the released
claims do not include claims “arising out of, related to, or connected in
any way with” the “breach,” “enforcement,” or “interpretation” of the
2012 settlement agreement. Although the “in any way” language is
broad, the language following it (“the alleged breach, enforcement, or
interpretation”) limits the “notwithstanding” provision more narrowly
than if it referred to claims that generally “arise from, relate to, or are
connected in any way with the 2012 settlement agreement.” Some of the
agreement’s other provisions, for example, specify a forum for the
resolution of disputes “arising out of or related to” the agreement, waive
Petrobras’s sovereign immunity for “any action related to” the
agreement, waive a jury trial for any litigation “connected in any way
with” the agreement, and allocate costs “incurred in connection with the
negotiation and drafting of” the settlement agreement. By contrast, the
“notwithstanding” provision does not cover all claims that “relate to” or
“arise out of” the agreement or those made “in connection with the
negotiation and drafting” of the agreement. Instead, it more narrowly
covers only those claims that arise out of, relate to, or are connected with
the agreement’s “breach, enforcement, or interpretation.” We must
presume the parties intended that these words bear a particular
8
“significance and meaning.” Gates v. Asher, 280 S.W.2d 247, 249 (Tex.
1955).
Petrobras contends that its fiduciary-duty claims relate to the
“enforcement” of the settlement agreement because they seek to declare
the agreement unenforceable, and they relate to the “interpretation” of
the agreement because they require interpretation of the release and
reliance-disclaimer provisions. We are not convinced. “Enforcement”
means the act of “compelling compliance with a[n] . . . agreement.”
Enforcement, BLACK’S LAW DICTIONARY (11th ed. 2019). Petrobras’s
fiduciary-duty claims do not seek to compel compliance with the 2012
settlement agreement. Instead, Petrobras seeks to avoid compliance by
invalidating the agreement based on Astra’s conduct during the
“negotiation and signing” of the agreement. In fact, Petrobras completed
compliance years ago when it paid the settlement amount and now seeks
to undo its compliance and recover some of those funds. Petrobras did
not sue to enforce the agreement by complaining of its breach or by
seeking clarification of its meaning but instead sued to invalidate the
agreement by declaring it unenforceable. Within this context, at least,
we think an important distinction exists between claims that relate to
an agreement’s “enforcement” and those that relate to its
“enforceability.”
Perhaps if we considered only the “notwithstanding” provision’s
language, Petrobras’s argument could present a close call. If, for
example, one party refused to comply with the settlement agreement
and the other party filed suit to enforce it, that suit would likely relate
to the agreement’s “breach” or “enforcement.” And although we need not
9
decide the issue here, it might be that the “notwithstanding” provision
would permit the refusing party to assert counterclaims or defenses
against enforcement based on the suing party’s fraud or fiduciary
breaches. But even if that were true, the difference between that
example and this case is that the “peace” the parties purchased through
the settlement agreement would initially be broken by a claim that
seeks to “enforce” or uphold the settlement agreement, not undo it.
But even if the “notwithstanding” provision’s language leaves
room for debate, its context confirms our conclusion that it does not
encompass Petrobras’s claims to invalidate the agreement. As
explained, the provision excepts certain claims from what is otherwise
“the broadest type of general release,” through which both parties
released “any and all claims . . . of whatever kind or character,” to the
extent those claims are “based on any acts or omissions, whether known
or unknown, that have occurred on or before” the agreement’s effective
date. Petrobras’s claims that Astra breached its fiduciary duties by
offering and failing to disclose bribes during the period leading up to the
agreement’s effective date fall squarely within this description. To
construe the “notwithstanding” provision as allowing claims based on
then-“unknown” conduct that occurred before the agreement’s effective
date would effectively nullify the broad release.
Instead, we read the “notwithstanding” provision as clarifying
and confirming that although the parties agreed to “the broadest type of
general release,” it was not so broad as to preclude claims seeking to
maintain the peace the parties purchased on the terms stated in the
settlement agreement. In this sense, although both parties refer to the
10
provision as a “carve-out provision,” we think that label is a misnomer.
The provision does not “carve out” or “except” from the general release
claims that would otherwise be included within the release. Instead, it
states that the released claims “shall not include” claims related to the
agreement’s breach, enforcement, or interpretation. Reading the release
and the notwithstanding provisions together, the parties agreed to
release certain claims and further agreed that those claims do not
include other claims. They did not agree to release certain claims except
for some portion of those claims.
Petrobras’s fiduciary-duty claims—based on allegations that,
unbeknownst to Petrobras, Astra paid bribes to Petrobras
representatives in connection with the 2006 stock-purchase agreement,
offered bribes in connection with the 2012 settlement agreement, and
then failed to disclose that misconduct during the parties’ negotiations—
fall squarely within the scope of the general release. These claims seek
to nullify the settlement agreement based on conduct that occurred
before its effective date; they do not relate to any effort to interpret or
enforce the agreement or recover for its breach. As a result, they do not
fall within the scope of claims the release “shall not include.” We
conclude that the court of appeals erred by reversing
summary judgment for Astra on the fiduciary-duty claims related to the
2012 settlement agreement. And to the extent that Petrobras’s claims
for conspiracy, aiding and abetting, unjust enrichment, declaratory
judgment, and exemplary damages are derivative of and dependent
upon the fiduciary-duty claims, Astra is entitled to summary judgment
on those claims as well.
11
III.
Fraud and the Disclaimer of Reliance
We next consider Petrobras’s claims that Astra committed fraud
and made negligent misrepresentations by offering and failing to
disclose bribes during the parties’ negotiations leading up to the 2012
settlement agreement. According to Petrobras, this fraudulent conduct
induced Petrobras to enter into the settlement agreement and thus
rendered the agreement unenforceable. Astra obtained
summary judgment dismissing these claims on the ground that
Petrobras expressly disclaimed any reliance on any “statement or
representation” made by Astra or its agents, and instead, Petrobras
confirmed that it relied solely on its “own judgment” and the advice of
its own counsel.10 The court of appeals (1) agreed that the disclaimer of
10 Petrobras made these representations within the following provision
of the 2012 settlement agreement:
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 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
12
reliance is enforceable and (2) agreed that the disclaimer bars
Petrobras’s fraud claims against the Astra entities, but (3) concluded
that the disclaimer does not bar the fraud claims against the individual
Astra defendants. 633 S.W.3d at 627–28, 630. In this Court, Petrobras
challenges the first two holdings, and the Astra individuals challenge
the third. We agree with Astra on all three.
A. Enforceability of the Reliance Disclaimer
Texas law encourages parties to resolve their disputes by
agreement, but settlement agreements—like all other contracts—are
unenforceable if they are procured by fraud. Italian Cowboy Partners,
Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 331 (Tex. 2011);
Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 178 (Tex. 1997).
To establish such fraudulent inducement, a party seeking to invalidate
an agreement must prove that it reasonably relied on the other party’s
misrepresentations to its detriment. Int’l Bus. Machs. Corp. v. Lufkin
Indus., LLC, 573 S.W.3d 224, 228 (Tex. 2019); Italian Cowboy, 341
S.W.3d at 337 (quoting Aquaplex, Inc. v. Rancho La Valencia, Inc., 297
S.W.3d 768, 774 (Tex. 2009) (per curiam)). Because “[a]fter-the-fact
protests of misrepresentation are easily lodged,” Forest Oil Corp. v.
McAllen, 268 S.W.3d 51, 60 (Tex. 2008), parties who mutually desire to
resolve all disputes and buy complete and final peace often include
provisions in their settlement agreements expressly disclaiming any
reliance on each other’s representations.
EXPLAINED THE ENTIRE CONTENTS OF THIS
SETTLEMENT AGREEMENT IN FULL, AS WELL AS THE
LEGAL CONSEQUENCES OF IT.
13
The law must balance society’s interest in protecting parties
against fraudulently induced promises with its interest in enabling
parties to “fully and finally resolve disputes between them.”
Schlumberger, 959 S.W.2d at 179. To achieve this balance, we have held
that contractual disclaimers of reliance may be enforceable and may
negate a subsequent fraudulent-inducement claim if the disclaimer is
clear, specific, and unequivocal. See Lufkin, 573 S.W.3d at 229; Italian
Cowboy, 341 S.W.3d at 336; Forest Oil, 268 S.W.3d at 60; Schlumberger,
959 S.W.2d at 179. Whether a reliance disclaimer is effective in any
given case “depends on the contract’s language and the totality of the
surrounding circumstances.” Lufkin, 573 S.W.3d at 226; Forest Oil, 268
S.W.3d at 60; Schlumberger, 959 S.W.2d at 179. Specifically, courts
must consider such factors as whether
(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 at arm’s length;
(4) the parties were knowledgeable in business matters;
and
(5) the release language was clear.
Forest Oil, 268 S.W.3d at 60. In considering these factors, our ultimate
purpose is to determine whether the contract clearly confirms that “the
parties intended once and for all to resolve specific disputes.” Italian
Cowboy, 341 S.W.3d at 335; see also Forest Oil, 268 S.W.3d at 58;
Schlumberger, 959 S.W.2d at 181.
The parties here agree that the second, fourth, and fifth factors
weigh in favor of enforcing the reliance disclaimer in this case. Petrobras
14
is a sophisticated international corporation with extensive experience in
the petroleum industry and was ably represented by top-notch attorneys
during the negotiation and signing of the 2012 settlement agreement.
And as we have explained, the language through which Petrobras
broadly released all claims against Astra was clear and effective. But
Petrobras argues that the first and third factors, as well as the overall
equities of the circumstances, weigh against enforcing the reliance
disclaimer in this case.
1. The first factor
The first factor concerns whether “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.” Forest Oil, 268 S.W.3d at 60. Petrobras
acknowledges that the parties carefully negotiated the settlement
agreement’s terms, including the terms of the release, but contends that
Astra did not disclose—and thus the parties did not discuss—the bribery
scheme that gave rise to the current dispute.
According to Petrobras, this first factor at least requires that the
parties’ settlement negotiations included discussions about the
negotiations leading to the 2006 stock-purchase agreement and the
parties’ subsequent disputes. See, e.g., Baker v. City of Robinson, 305
S.W.3d 783, 796 (Tex. App.—Waco 2009, pet. denied); Residencial Santa
Rita, Inc. v. Colonia Santa Rita, Inc., No. 04-06-00778-CV, 2007 WL
2608564, at *3 (Tex. App.—San Antonio Sept. 12, 2007, no pet.) (mem.
op.). By requiring that the parties specifically discussed these topics,
Petrobras contends, the first factor ensures that Petrobras truly
15
intended to disclaim any reliance on representations Astra made about
these topics during the parties’ discussions. Otherwise, Petrobras
asserts, the circumstances cannot support the conclusion that Petrobras
truly intended to disclaim reliance and would instead allow Astra to
exploit Petrobras’s ignorance of the actual facts and benefit from its
wrongdoing.
Astra, by contrast, contends that the first factor requires only that
the parties specifically discuss the scope and effect of the release, which
is ultimately the subject of the parties’ current dispute. See, e.g.,
Leibovitz v. Sequoia Real Estate Holdings, L.P., 465 S.W.3d 331, 344
(Tex. App.—Dallas 2015, no pet.); McLernon v. Dynegy, Inc., 347 S.W.3d
315, 331 (Tex. App.—Houston [14th Dist.] 2011, no pet.). This factor is
met, Astra contends, because the parties specifically discussed the fact
that the settlement agreement’s mutual releases purchased full and
final peace, barring each party from ever asserting claims based on pre-
settlement conduct, regardless of whether the party knew about that
conduct when it signed the agreement. According to Astra, Petrobras’s
approach would require that the parties disclose and discuss “the very
facts allegedly misrepresented or concealed,” in which case the reliance
disclaimer would serve no purpose.
As Petrobras insists, we found it significant in Schlumberger that
the plaintiff had expressly and clearly disclaimed reliance on the
defendant’s representations about the feasibility and value of a
diamond-mining project because that topic, “after all, was the very
dispute that the release was supposed to resolve.” 959 S.W.2d at 180.
But in Forest Oil, we held that a reliance disclaimer was enforceable
16
even though the settlement resolved disputes over royalty-payment
issues and not over environmental issues for which the plaintiff later
sued. 268 S.W.3d at 58. So “while the misrepresentation
in Schlumberger ‘pertained to the very matter negotiated, settled, and
released,’” the misrepresentation in Forest Oil “did not concern known
disputed matters (which were settled and released) but potential future
disputes (which were set aside and reserved).” Id. at 57. Although we
ultimately noted that the parties in Forest Oil did discuss environmental
issues during their settlement negotiations, we explained that
Schlumberger’s observation that the misrepresentations there led to
“the very dispute that the release was supposed to resolve” is “more
accurately interpreted as emphatic language, not limiting language.” Id.
at 58. The important point from Schlumberger’s first factor, we
explained, is that when “parties expressly discuss material issues
during contract negotiations but nevertheless elect to include waiver-of-
reliance and release-of-claims provisions, the Court will generally
uphold the contract.” Id. Ultimately, the question is whether the
circumstances and nature of the parties’ settlement discussions
demonstrate that the parties considered the consequences of the
reliance disclaimer in light of the material issues of the dispute, which
supports the conclusion that an “all-embracing disclaimer of any and all
representations” actually “shows the parties’ clear intent.” Id.
Here, the evidence does not suggest that the parties actually
considered or discussed allegations that Astra representatives bribed
Petrobras officials to approve the 2006 stock-purchase agreement or
offered to bribe them to approve the 2012 settlement agreement. But the
17
evidence—including the terms of the settlement agreement itself—does
establish that the parties entered into the settlement agreement only
after an extended series of complex and hotly contested negotiations
that included discussions about the need to resolve all prior, pending,
and possible claims between the parties, including those that were
“unknown” at the time. The circumstances leave no doubt that both
parties intended to fully and finally resolve all their disputes “once and
for all” and, to accomplish that objective, they knowingly agreed to
disclaim any reliance on the other parties’ representations. Although
they may not have “specifically discussed the issue which has become
the topic of the subsequent dispute,” they expressly discussed the
“material issues” and “nevertheless elect[ed] to include waiver-of-
reliance and release-of-claims provisions” in their settlement
agreement. Id. Even if the first factor does not carry the weight here
that it carried in Schlumberger, we conclude it nevertheless tilts in favor
of enforcing the reliance disclaimer.
2. The third factor
The third Forest Oil factor considers whether the parties dealt
with each other in an arm’s-length transaction. Id. at 60. “Generally, an
arm’s-length transaction is one between two unrelated parties with
generally equal bargaining power, each acting in its own interest.” Hous.
Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820,
832 (Tex. 2014). As a general rule, a transaction between fiduciaries is
not an arm’s-length transaction but instead requires higher fiduciary
standards that require full disclosure of all material facts.
Schlumberger, 959 S.W.2d at 175.
18
Petrobras contends this factor weighs against enforcement of the
reliance disclaimer because the Astra individuals owed fiduciary duties
to Petrobras during the negotiations leading to the 2012 settlement
agreement. Specifically, Petrobras asserts that the individuals served as
directors and officers of the jointly owned entities that Astra and
Petrobras created to own, operate, and supply the oil refinery, and thus
owed fiduciary duties to those entities and their shareholders, including
Petrobras. And, according to Petrobras, the individuals continued to owe
fiduciary duties to Petrobras even after they ceased serving as officers
and directors—even during the subsequent years of disputes and
litigation between Petrobras and Astra up until (and even after) the
2012 settlement agreement.11
We have doubts about Petrobras’s contention that the directors
and officers of the jointly owned entities assumed eternal fiduciary
duties to Petrobras. In the first place, the directors and officers of the
jointly owned entities owed fiduciary duties to those specific entities, not
to each of the entities’ individual shareholders. See Ritchie v. Rupe, 443
S.W.3d 856, 869 (Tex. 2014) (“[A] director is duty-bound to exercise
11 See Thywissen v. Cron, 781 S.W.2d 682, 686 (Tex. App.—Houston [1st
Dist.] 1989, writ denied) (“Once a fiduciary relationship has been established,
it is presumed to continue until it is repudiated.”); see also Pacelli Bros. Transp.
v. Pacelli, 456 A.2d 325, 329 (Conn. 1983) (“[A] settlement agreement and
general release cannot shield an officer or director who has failed in his
fiduciary duty to disclose information relevant to a transaction with those
whose confidence he has abused . . . .”); BelCom, Inc. v. Robb, No. CIV. A. 14663,
1998 WL 229527, at *3 (Del. Ch. Apr. 28, 1998) (“A former director, of course,
breaches his fiduciary duty if he engages in transactions that had their
inception before the termination of the fiduciary relationship or were founded
on information acquired during the fiduciary relationship.”), aff’d, 725 A.2d
443 (Del. 1999).
19
business judgment for the sole benefit of the corporation, and not for the
benefit of individual shareholders . . . .”). Petrobras has not cited any
authority to support the idea that the individuals owed fiduciary duties
to Petrobras, separate and apart from the duties they owed to the
entities they served. And second, we find it difficult to accept the
proposition that the individuals must forever bear a fiduciary duty to
Petrobras long after leaving their positions and even during extensive
and protracted litigation between the two entities. Under Petrobras’s
theory, the Astra individuals would even now—in the midst of this
present litigation—owe ongoing fiduciary duties to act in Petrobras’s
best interest.
But more importantly, even if the Astra individuals owed
lingering fiduciary duties to Petrobras during the parties’ settlement
negotiations, we do not see how their failure to disclose the alleged bribe
offers to Petrobras could affect the enforceability of the reliance
disclaimer when Petrobras does not allege that anyone accepted the
bribes or that the offers in any way affected Petrobras’s decision to enter
into the 2012 settlement agreement.12
Finally, as we explained in Forest Oil and reaffirmed in Lufkin,
the existence of an arm’s-length transaction is only one of the factors we
must consider when deciding whether a reliance disclaimer is
enforceable. See Lufkin, 573 S.W.3d at 229; Forest Oil, 268 S.W.3d at 60.
12 We do not pass judgment on the continuing validity of the reliance
disclaimer had Astra successfully bribed Petrobras into accepting the
settlement agreement because Petrobras has not alleged such facts. See
Schlumberger, 959 S.W.2d at 181 (“We emphasize that a disclaimer of reliance
. . . will not always bar a fraudulent inducement claim.”).
20
Even if the Astra individuals owed fiduciary duties to disclose material
information to Petrobras during the negotiations leading up to the 2012
settlement agreement, we cannot conclude that Petrobras could not
have knowingly and intentionally disclaimed reliance on the
individuals’ representations under these circumstances. The individuals
ceased serving as directors and officers in 2009 when, as a result of an
arbitration award resolving numerous longstanding disputes, Astra
transferred all of its interests in the jointly owned entities to Petrobras,
and the joint venture ended. From that point until the parties entered
into the 2012 settlement agreement, the parties continued vigorously
litigating numerous disputes, and Astra obtained judgments against
Petrobras totaling more than $750 million. As the adverse parties
negotiated and ultimately signed the settlement agreement, Astra
asserted additional pending claims seeking over $400 million more.
Under these circumstances, any lingering fiduciary duties the Astra
individuals may have owed do not support the conclusion that—contrary
to its clear and express agreement otherwise—Petrobras relied on
Astra’s statements and representations rather than on its “own
judgment” and the advice of its own counsel. Even if this third factor
weighs against enforcing the reliance disclaimer, it does not weigh so
heavily as to overcome the other factors.
3. The totality of the circumstances
When considering and balancing the Forest Oil factors to
determine the enforceability of a reliance disclaimer, “[c]ourts must
always examine . . . the totality of the surrounding circumstances.”
Forest Oil, 268 S.W.3d at 60. Petrobras argues that under these
21
circumstances, in which Astra paid millions of dollars in bribes to induce
the 2006 stock-purchase agreement and then offered many millions
more to obtain the 2012 settlement agreement, the law should not
permit Astra to hide behind a reliance disclaimer to benefit from its
wrongful and criminal conduct. Although we share Petrobras’s concern
over the equities at play, the “totality of the circumstances” that courts
must consider in this context are those circumstances relating not to the
fairness or unfairness of the parties’ settlement agreement, but to the
likelihood that, when they entered into the agreement, the parties truly
intended to disclaim any reliance on each other’s representations and
“intended once and for all to resolve” their disputes. Italian Cowboy, 341
S.W.3d at 335; see also Forest Oil, 268 S.W.3d at 58; Schlumberger, 959
S.W.2d at 180.
As we explained in Forest Oil, “parties who contractually promise
not to rely on extra-contractual statements—more than that, promise
that they have in fact not relied upon such statements—should be held to
their word.” 268 S.W.3d at 60. Considering the Forest Oil factors within
the context of the totality of the circumstances here, we can only
conclude that Petrobras expressly and intentionally represented and
agreed that it was not relying on any of Astra’s statements or
representations when it decided to execute the 2012 settlement
agreement. We thus conclude that Petrobras’s reliance disclaimer is
enforceable.
B. Applicability of the Reliance Disclaimer
Petrobras next contends that, even if its reliance disclaimer is
enforceable, it does not apply to and preclude the fraud claims Petrobras
22
asserts in this case. Specifically, Petrobras notes that it disclaimed
reliance only on any “statement or representation” made by Astra prior
to execution of the settlement agreement, and it asserts that its fraud
claims complain not of any statements or representations but of Astra’s
failure to disclose the bribery payments and offers. According to
Petrobras, it disclaimed reliance on affirmative misrepresentations but
not on any failure to make statements or representations that should
have been made.
Petrobras’s pleaded allegations, however, are not limited to non-
disclosures. Instead, Petrobras expressly alleged in its petition that
Astra “made untrue representations of fact and/or omitted to state facts
necessary to correct or make the statements and/or omissions that were
made.” And in any event, the settlement agreement expressly releases
claims “based on any acts or omissions, whether known or unknown,” so
Petrobras could not rely on any omissions. Moreover, the reliance
disclaimer warrants that “each party is relying on its own judgment,”
not on the disclosure of the other party. Because the settlement
agreement forecloses Petrobras’s argument, we hold that the reliance
disclaimer applies to claims of both misrepresentations and omissions.
C. Applicability to the Individual Defendants
Finally, with regard to the reliance disclaimer, Astra argues that
the court of appeals erred by holding that the individual defendants are
not entitled to summary judgment on Petrobras’s fraud claims. The
court of appeals noted that Petrobras sued the individual defendants “in
their individual capacities,” but concluded that the individuals’
summary-judgment motion did not “expressly present any ground or
23
explain why as a matter of law” they are entitled to “the benefit of the
reliance disclaimer” in their “individual capacities.” 633 S.W.3d at 630.
In other words, the court reversed summary judgment in the individual
defendants’ favor, not on the merits, but because the defendants’ motion
did not adequately specify that the reliance disclaimer protected them
in their “individual,” as opposed to their “corporate,” capacities. Id. at
629.
We disagree. A summary-judgment motion “must stand or fall on
the grounds expressly presented in the motion.” McConnell v. Southside
Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993), but the “[g]rounds
may be stated concisely, without detail and argument,” id. at 340
(quoting Roberts v. Sw. Tex. Methodist Hosp., 811 S.W.2d 141 (Tex.
App.—San Antonio 1991, writ denied)). We conclude that the Astra
individuals’ motion sufficiently sought summary judgment against
liability in their “individual” capacity because that is the only capacity
in which Petrobras sought to impose liability on the individuals and the
only capacity in which they could have been liable.
Individuals can “act” in a “corporate capacity” in the sense that
they are acting as an agent, employee, or representative of a corporation.
See Bennett v. Reynolds, 315 S.W.3d 867, 884 (Tex. 2010). If they commit
a tort while acting in their corporate capacity, their employer may be
held vicariously liable for their actions under the doctrine of respondeat
superior. Los Compadres Pescadores, L.L.C. v. Valdez, 622 S.W.3d 771,
779 (Tex. 2021); Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125,
130 (Tex. 2018). But the fact that an individual was acting in a corporate
capacity does not prevent the individual from being held personally—or
24
“individually”—liable for the harm caused by those acts. Franka v.
Velasquez, 332 S.W.3d 367, 383 (Tex. 2011) (“[P]ublic employees (like
agents generally) have always been individually liable for their own
torts, even when committed in the course of employment, and suit may
be brought against a government employee in his individual capacity.”);
Miller v. Keyser, 90 S.W.3d 712, 717 (Tex. 2002) (explaining that an
agent who “personally ma[kes] misrepresentations . . . can be held
personally liable”). When an individual commits a tort while acting in a
“corporate capacity,” either the corporation can be held vicariously liable
or the individual can be held personally liable, or both, but the
individual cannot be held “corporately” liable.
Petrobras relies on Ambrosio v. EPS Wireless, Inc., No. 05-99-
01442-CV, 2000 WL 1160696, at *3–4 (Tex. App.—Dallas Aug. 18, 2000,
no pet.) (not designated for publication), for the proposition that a
settlement agreement that releases all claims against a corporation and
its “agents, employees[, and] officials” only releases those individuals
from liability in their “corporate” or “official” capacity and does not
release them from liability in their “individual” capacity. The issue in
Ambrosio, however, was whether a corporate official could benefit from
a release when the plaintiff alleged that the official promised to transfer
stock to the plaintiff both “from the company and himself.” Id. at *1
(emphasis added). The court held that the official was not entitled to
summary judgment based on the release because a fact issue existed as
to whether, “at the time he made the promise to transfer” the stock, the
official “was acting in the course and scope of his employment with” the
company. Id. at *3.
25
Ambrosio is distinguishable from this case because the parties
here do not dispute that the Astra individuals were acting within the
course and scope of their employment when they paid, offered, and failed
to disclose the bribes. Petrobras pleaded that the individuals were
individually liable for that conduct, and the individuals moved for
summary judgment on those claims. Because the only claims Petrobras
pleaded—or could have pleaded—against the individuals were claims to
hold them individually liable, the individuals did not have to seek
summary judgment expressly against “individual” liability.
In addition to agreeing with the trial court that the individual
defendants’ summary-judgment motion was sufficient to obtain
summary judgment against individual liability, we agree with the trial
court that the individual defendants demonstrated that they were
entitled to that relief. Petrobras relies on Ambrosio for the proposition
that Petrobras’s release was not sufficient to release claims against the
individual defendants in their individual capacities because the release
referred only to Astra’s “agents” and did not expressly identify the
individual defendants. But the issue here is whether the individuals
were entitled to summary judgment on Petrobras’s fraud claims, and on
that issue, the question is not whether Petrobras released those claims
but whether the reliance disclaimer prevents Petrobras from
establishing the reliance necessary to recover from the individuals on
those claims. Because Petrobras expressly disclaimed reliance on any
statement or representation by any “agent” of Astra, we conclude that
Petrobras cannot establish that any representation by the Astra
individuals defrauded Petrobras.
26
Because Petrobras’s disclaimer of reliance on Astra’s statements
and representations is enforceable and applies to the representations
about which Petrobras now complains, and because the disclaimer
negated the reliance element of Petrobras’s fraud claims, we conclude
that the Astra defendants were entitled to summary judgment on those
claims. And to the extent that Petrobras’s claims for conspiracy, aiding
and abetting, unjust enrichment, declaratory judgment, and exemplary
damages are derivative of and dependent upon the fraud claims, the
defendants are entitled to summary judgment on those claims as well.
IV.
Arbitration Claims
In addition to declaring that the 2012 settlement agreement bars
the claims Petrobras asserted in this lawsuit, the trial court’s final
judgment also declared that the agreement bars the claims Petrobras
asserted in the separate arbitration proceeding it filed shortly after it
filed this lawsuit. As in this lawsuit, Petrobras asserted in the
arbitration proceeding that Astra “engaged in bribery and corruption in
connection with” the parties’ 2006 stock-purchase agreement and
brought multiple claims, including claims for fraud, breach of contract,
declaratory judgment, aiding and abetting breach of fiduciary duty,
unjust enrichment, and racketeering, seeking exemplary damages,
attorney’s fees, and costs. But in the arbitration, Petrobras asserted the
claims to challenge the enforceability of the 2006 stock-purchase
agreement, rather than the 2012 settlement agreement. It did so
because the stock-purchase agreement required arbitration of any claim
or controversy arising out of or related to “any question of the validity
27
or effect of this Agreement including this clause.” Based on this
arbitration clause, Petrobras argues that the court of appeals erred by
affirming the trial court’s declaratory judgment.
Petrobras contends the arbitration clause requires the arbitrator,
and not the courts, to resolve the claims filed in the arbitration. Astra
argues, however, that the parties’ 2012 settlement agreement resolved
all claims between the parties and replaced and superseded the 2006
stock-purchase agreement, including the arbitration clause, so the
arbitration agreement ceased to exist after the settlement agreement.
But Petrobras contends that only the arbitrator can decide the
“gateway” issue of whether the claims are arbitrable because the parties
delegated to the arbitrator “any question of the validity or effect of [the
arbitration] clause.” See Henry Schein, Inc. v. White Sales, Inc., 139 S.
Ct. 524, 530 (2019) (“Just as a court may not decide a merits question
that the parties have delegated to an arbitrator, a court may not decide
an arbitrability question that the parties have delegated to an
arbitrator.”).
The dispute over the arbitration, then, is whether, in light of the
2012 settlement agreement, the parties’ agreement to arbitrate as set
forth within the 2006 stock-purchase agreement still exists at all. And
as the Supreme Court and this Court have explained, courts—and not
arbitrators—must decide whether the parties “in fact delegated the
arbitrability question to the arbitrator,” id. at 531, “whether the parties
are bound by a given arbitration clause,” Howsam v. Dean Witter
Reynolds, Inc., 537 U.S. 79, 84 (2002), and “whether the parties made a
valid and presently enforceable agreement to arbitrate,” G.T. Leach
28
Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 519 (Tex. 2015)
(emphasis added). In short, courts must decide “whether an enforceable
agreement to arbitrate . . . exists.” Id. at 522. Because the parties here
dispute whether their arbitration agreement continued to exist after the
2012 settlement agreement, we agree with the trial court and court of
appeals that courts must decide that issue.
The Supreme Court has also instructed that “courts ‘should not
assume that the parties agreed to arbitrate arbitrability unless there is
clear and unmistakable evidence that they did so.’” Henry Schein, 139
S. Ct. at 531 (quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938,
939 (1995)); see Howsam, 537 U.S. at 83. Here, the 2006 stock-purchase
agreement indisputably includes a clear and unmistakable agreement
that the arbitrator will decide any question regarding the “validity” of
the parties’ arbitration agreement. But the 2012 settlement agreement
just as clearly confirms that the parties later agreed to resolve all claims
and to supersede the stock-purchase agreement. Several of the
settlement agreement’s provisions provide this confirmation.
First, the 2012 settlement agreement includes a merger clause in
which the parties agreed that the settlement agreement “represents the
entire agreement of the [p]arties and supersedes all prior written or oral
agreements.” [emphasis added.] The merger clause contains no language
that could somehow be interpreted to except or preserve the parties’
“prior written . . . agreement” to arbitrate disputes over the 2006 stock-
purchase agreement.
Second, the settlement agreement includes a forum-selection
clause in which the parties agreed that the state courts of Harris County
29
and the federal district court for the Southern District of Texas, Houston
Division, would be “the exclusive forums for any dispute arising out of
or related to this Settlement Agreement.” Again, the clause contains no
language that could be interpreted to except a dispute over the stock-
purchase agreement or its arbitration clause or over the settlement
agreement’s effect on that clause. While arbitration clauses can survive
and be harmonized with forum-selection clauses in subsequent
agreements between parties, see Sharpe v. AmeriPlan Corp., 769 F.3d
909, 915 (5th Cir. 2014), the forum-selection clause in the 2012
settlement agreement states that Harris County courts and the
Southern District of Texas are “the exclusive forums for any dispute”
regarding the settlement agreement, indicating the parties’ intent to
supersede the arbitration clause in the 2006 stock-purchase agreement.
See id. at 917 (“The ‘submit[ted] to the . . . jurisdiction’ language
demonstrates an intent for a court to adjudicate the merits of the
claims.”), 915–17 (comparing a “mere” venue clause, which can be
harmonized with an arbitration clause, with “far more extensive”
dispute-resolution clauses requiring all claims to be “submit[ted] to”
particular courts, which could not be harmonized with an arbitration
clause).
And finally, the parties agreed through the mutual release
clauses to release “all claims, demands, and causes of action of whatever
kind or character,” including “any claim arising out of or related to the
2006 [stock-purchase agreement], including without limitation, any
claims related to [any] covenants.” The releases, again, contain no
language that could be interpreted to preserve any claims regarding the
30
stock-purchase agreement or its arbitration clause. In fact, although the
settlement agreement describes at length how and where any disputes
over the settlement agreement should be resolved, it never mentions
arbitration.
We conclude that the settlement agreement confirms that the
parties agreed to supersede all prior agreements and to resolve any
disputes over the settlement agreement in court. At a minimum, reading
the arbitration agreement and the subsequent settlement agreement
together, we cannot conclude that a presently enforceable arbitration
agreement clearly and unmistakably exists. We thus conclude that
courts, rather than the arbitrator, must decide whether an agreement
to arbitrate claims regarding the 2006 stock-purchase agreement
presently exists, and for the reasons we have explained, we conclude it
does not.
In the absence of an arbitration agreement, the trial court
properly decided whether the 2012 settlement agreement bars the
claims Petrobras asserted in the arbitration proceeding. And we
conclude the court correctly decided that it does. As we have explained,
the settlement agreement included “the broadest type of general
release” in which Petrobras released “any and all claims . . . of whatever
kind or character, . . . whether known or unknown,” including, “without
limitation,” all claims related to the 2006 stock-purchase agreement and
all claims “growing out of, or connected in any way with, the Astra
Parties’ dealings with the Petrobras Parties.” Because the claims
Petrobras asserted in the arbitration proceeding squarely fit within this
31
release, we conclude that the trial court correctly held that the
settlement agreement bars those claims.
V.
Attorney’s Fees and Costs
Finally, as mentioned, the trial court granted summary judgment
to Astra and awarded Astra about $1.3 million in attorney’s fees and
costs. Because the court of appeals reversed the judgment, it also
reversed the fees-and-costs award and remanded that issue for the trial
court to reconsider. 633 S.W.3d at 633–34. Because we reinstate the trial
court’s judgment, we elect to review the issues Petrobras raised on
appeal regarding the fee award, which the parties renew here.
Petrobras argues that the trial court erred in granting attorney’s
fees and costs under section 37.009 of the Texas Civil Practice and
Remedies Code. See TEX. CIV. PRAC. & REM. CODE § 37.009. Petrobras
challenged the fee award on three bases: (1) Astra cannot collect
attorney’s fees because its declaratory-judgment claim merely
duplicated issues that were already before the court, see MBM Fin. Corp.
v. Woodlands Operating Co., 292 S.W.3d 660, 670–71 (Tex. 2009);
(2) Astra failed to segregate its fees between its declaratory-judgment
claim and claims for which attorney’s fees are not available, see Tony
Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 311 (Tex. 2006) (stating
that parties must generally segregate fees); and (3) the fee is unjust
because of Astra’s alleged criminal conduct.
We review section 37.009 fee awards under an abuse-of-discretion
standard. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). “It is an
abuse of discretion for a trial court to rule arbitrarily, unreasonably, or
32
without regard to guiding legal principles . . . or to rule without
supporting evidence.” Id. (citations omitted). First, although both
parties’ claims for declaratory judgment addressed the issue of whether
the 2012 settlement agreement is valid and enforceable, Astra’s
counterclaim sought additional relief in the form of a declaration that
the settlement agreement bars the separate arbitration proceeding as
well as Petrobras’s claims in this lawsuit. We thus conclude that Astra’s
counterclaim did not merely duplicate Petrobras’s claim.
Second, the duty to segregate between recoverable and
nonrecoverable attorney’s fees does not apply when the services for
which the fees are incurred “advance both a recoverable and
unrecoverable claim,” such that the “fees are so intertwined that they
need not be segregated.” Chapa, 212 S.W.3d at 313–14. Here, Astra
reduced and segregated fees by eliminating hundreds of thousands of
dollars in fees, reducing the hourly rate for certain attorneys as
requested, and applying a thirty- to fifty-percent discount to hours
billed. Moreover, because Astra sought to halt the arbitration
proceeding by enforcing the settlement agreement’s forum-selection
clause, it necessarily had to prove that the agreement was valid and
enforceable. We conclude that the trial court did not abuse its discretion
by finding that any work completed to achieve those goals was
sufficiently intertwined to negate any need for the fees to be segregated
further. See id.
Third, we disagree that the trial court abused its discretion by
concluding that its award of attorney’s fees to Astra was equitable and
just. Although we do not discount the seriousness of Petrobras’s
33
accusations of bribery and other corrupt conduct by Astra, the trial court
correctly concluded that Petrobras agreed to release and forgo any
claims based on any conduct by Astra—whether known or unknown—
when it agreed to the 2012 settlement agreement. By asserting claims
it had agreed never to assert, Petrobras broke the promise it made in
the settlement agreement and caused Astra to incur substantial fees and
costs to enforce that promise. We conclude the trial court did not abuse
its discretion by awarding Astra its fees and costs.
VI.
Conclusion
We hold that the 2012 settlement agreement bars Petrobras’s
claims against Astra because the release bars the fiduciary-duty claims
and the reliance disclaimer prevents Petrobras from establishing the
fraud claims. We reverse the court of appeals’ judgment and render
judgment reinstating the trial court’s final judgment.
Jeffrey S. Boyd
Justice
OPINION DELIVERED: April 29, 2022
34