Affirmed, In Part, Reversed and Rendered, In Part, and Majority and
Concurring Opinions filed December 28, 2012.




                               In The

                Fourteenth Court of Appeals

                        NO. 14-11-00125-CV



  TEXAS STANDARD OIL & GAS, L.P., GRIMES ENERGY CO., AND
                  PETROVAL, INC, Appellants
                                 V.
           FRANKEL OFFSHORE ENERGY, INC., Appellee


               On Appeal from the 127th District Court
                       Harris County, Texas
                 Trial Court Cause No. 2008-55176



                     MAJORITY OPINION
       Appellants, Texas Standard Oil & Gas, L.P. (“Texas Standard”), Grimes
Energy Co. (“Grimes”), and PetroVal, Inc. (“PetroVal”) [collectively “GTP”],1
appeal a judgment in favor of Frankel Offshore Energy, Inc. (“Frankel”) in this suit
arising out of the parties’ failed venture for development of oil and gas prospects.

       Frankel sued GTP seeking damages for various claims, including breach of
fiduciary duties, and rescission of a settlement agreement previously executed by
the parties in which Frankel released all of its claims. GTP counterclaimed for
Frankel’s alleged breach of the settlement agreement. After a jury returned a
verdict which would have resulted in no award of damages to Frankel on any
claims, including breach of fiduciary duties, the trial court ordered that Frankel
recover $4,010,175.06 for equitable disgorgement based on GTP’s alleged breach
of fiduciary duties. The trial court also (1) ordered rescission of the settlement
agreement based on the jury’s finding that GTP fraudulently induced Frankel to
execute the agreement and (2) concluded that a release of fraudulent-inducement
claims in the settlement agreement was unenforceable because the parties were
fiduciaries.

       In three appellate issues, GTP contends (1) the trial court erred by rescinding
the settlement agreement, (2) the trial court erred by concluding the parties were
fiduciaries, and (3) the equitable-disgorgement award violated various procedural
and substantive principles. GTP not only seeks to reverse the order of rescission
and the equitable-disgorgement award, but also requests an award of damages in its
favor based on an additional jury finding that Frankel breached the settlement
agreement.

       1
          “GTP” is not a legal entity but is used by the parties as a reference to appellants
collectively. For consistency, we will use this reference except when necessary to refer to an
appellant separately.
                                              2
      Because we hold the release precluded all of Frankel’s fraudulent-
inducement claims that were supported by the evidence, we reverse that portion of
the trial court’s judgment ordering rescission of the settlement agreement and
render judgment denying Frankel’s request for rescission. Therefore, we also
reverse the portion of the judgment ordering equitable disgorgement and render
judgment that Frankel take nothing on its request for equitable disgorgement. We
affirm the remainder of the judgment, including the order that GTP take nothing on
its claim for breach of the settlement agreement, albeit for a different reason than
described by the trial court—GTP has failed to show it is entitled to recovery on
this claim even under a valid settlement agreement.

                                  I. BACKGROUND

A.    Factual Background

       In July 2006, Frankel and GTP formed FGP, LLC (“FGP”), a Delaware
limited liability company, for purposes of holding seismic data licenses to be used
for developing oil and gas prospects. FGP filed a Certificate of Formation in the
State of Delaware. Frankel was the managing member of FGP, with a 50% share,
and Grimes, PetroVal, and Texas Standard were members with various percentage
shares of the remaining 50%.

      On the same day, Frankel, GTP, and FGP entered into a “Participation
Agreement” to “define the rights, responsibilities and participation by the Parties in
oil and gas prospects presented to FGP . . . and to promote the prospects to the oil
and gas industry and/or develop the prospects for the Parties’ own accounts . . . .”
Under the Participation Agreement, each party was required to immediately notify
the other parties of the presentation of a prospect to FGP and furnish associated
information. The Participation Agreement also contained mutual non-compete

                                          3
covenants, which were in effect during the term of the agreement and an additional
two years after all parties’ interests in a prospect had terminated.

      According to Frankel, it offered Grimes and Texas Standard the opportunity
to join FGP because of their experience in marketing oil and gas prospects. In the
Participation Agreement, the parties referenced that experience and recited Grimes
and Texas Standard would use their “best efforts” to market such prospects.

      The evidence indicates that PetroVal’s expertise relative to its contribution
involved services related to seismic and geologic data for generation and
development of prospects. Contemporaneously with execution of the Participation
Agreement, FGP and PetroVal signed a “Consulting Services Retainer Agreement”
(“the Retainer Agreement”) in which PetroVal agreed to provide such services and
use data exclusively for FGP in performance of the Participation Agreement and
hold data in confidence.

      The Participation Agreement contained a provision requiring the parties to
pay “cash calls,” prescribing procedures in the event of default on cash calls, and
essentially providing that a party who failed to timely pay three cash calls forfeited
all rights to participate in prospects generated by the data for which the cash calls
were required. FGP entered into a separate agreement with another company for
seismic-data licenses, which also required payment of cash calls.

      After its formation, FGP acquired interests in certain offshore prospects
through purchase, assignment, or farmout. In October 2007, GTP notified Frankel
that it was in default for failing to satisfy multiple cash calls. According to
Frankel, GTP used Frankel’s default as a subterfuge for pushing Frankel out of
FGP and excluding Frankel from development of prospects. Without informing
Frankel, GTP had already engaged in discussions with Scott Broussard of Cutter

                                           4
Energy as a replacement for Frankel. GTP and Cutter Energy eventually formed a
new company, Trifecta Oil & Gas, LLC (“Trifecta”). Frankel claims that, via
Trifecta, GTP sought to develop prospects which had been acquired by FGP,
pursue prospects which otherwise would have been pursued by FGP, and utilize
seismic data which should have been used for promoting FGP prospects.

      GTP essentially maintains it approached Broussard to seek the liquidity that
Frankel failed to provide, Frankel misrepresented its ability to shoulder its share of
FGP’s financial burdens, and Frankel hid cash calls from GTP.            In contrast,
Frankel asserts that, over a year into the parties’ relationship, Grimes and Texas
Standard had not attempted to market any prospects acquired through FGP, which
caused Frankel concern about continuing to contribute its share of funding for
FGP’s operations.

      In any event, in December 2007, another company filed an involuntary
bankruptcy proceeding against Frankel in an unrelated matter. GTP intervened in
the bankruptcy proceeding as creditors of Frankel, claiming it was liable for
various seismic charges on prospects acquired by the parties and defaulted on cash
calls. In response, Frankel disputed GTP’s claims and contended GTP breached
the Participation Agreement and Frankel was entitled under that agreement for
compensation relative to several prospects.

      On March 31, 2008, GTP and Frankel executed a “Settlement Agreement
and Release of All Claims” (“the Settlement Agreement”).             The Settlement
Agreement terminated the parties’ relationship as to FGP except for continuing to
hold existing seismic licenses. In the Settlement Agreement, GTP agreed to pay
$135,000, and assign certain interests, to Frankel. Frankel agreed it would assign
to GTP, or relinquish its interest in, certain FGP prospects.        The Settlement

                                          5
Agreement also contained broad mutual release provisions relative to various
claims, including “fraud in the inducement of this Agreement.”2

       When the Settlement Agreement was executed, GTP was already engaged,
via Trifecta, in negotiations to sell certain prospects to Probe Resources US Ltd.
(“Probe”), of which Broussard was president and CEO.                    The potential sale
involved prospects which, according to Frankel, were acquired by or should have
been pursued on behalf of FGP, including some prospects in which Frankel
relinquished its interest in the Settlement Agreement. Frankel claims GTP used its
intervention in the bankruptcy proceeding as a tool for pressuring Frankel to
relinquish its interest in these prospects so that GTP could obtain clean title and
effectuate the Probe transaction. It is undisputed that, before execution of the
Settlement Agreement, GTP failed to disclose the potential Probe transaction to
Frankel based on concern Frankel would not execute the Settlement Agreement if
it knew about the sale, and Frankel was not otherwise aware of the sale.
Approximately two months after execution of the Settlement Agreement, Trifecta
sold six prospects to Probe in a multi-million dollar transaction.

       Frankel used some of the assets that it received pursuant to the Settlement
Agreement to settle the bankruptcy matter with its unrelated creditor. However,
both parties presented evidence of payments or transfers purportedly required
under the Settlement Agreement that were not effected or were untimely.




       2
         We hereinafter refer to Frankel’s release of claims for fraudulent inducement as “the
fraudulent-inducement release” to distinguish it from the entire “release” containing the
provision.
                                              6
B.     The Suit

       In 2008, Frankel sued GTP, asserting various causes of action and
essentially seeking to recover lost profits due to its nonparticipation in the Probe
transaction.

       Frankel alleged that GTP and PetroVal breached, respectively, the
Participation Agreement and the Retainer Agreement by (1) failing to utilize
seismic data and their best efforts to market prospects on behalf of FGP, (2)
forming Trifecta, and (3) utilizing seismic data and marketing FGP’s prospects for
GTP’s own benefit, through Trifecta, to the exclusion of Frankel.

       Frankel alleged that GTP breached fiduciary duties to Frankel by (1) using
FGP’s confidential information for GTP’s own benefit, to the exclusion and
detriment of Frankel, (2) concealing that GTP had formed Trifecta and was
negotiating the sale to Probe, and (3) misrepresenting in the Settlement Agreement
that GTP owned, and had the ability to assign to Frankel, a certain interest in a
prospect—High Island Block A-96—as purportedly promised therein. Frankel
also pleaded that GTP fraudulently induced Frankel to execute the Settlement
Agreement via these latter two actions or omissions.

       Frankel further alleged that GTP engaged in a conspiracy to commit the
above-described conduct.

       Frankel sought rescission of the Settlement Agreement, actual damages,
punitive damages, and imposition of a constructive trust on all profits, proceeds,
funds, and property obtained by GTP via its alleged breach of fiduciary duties.3


       3
         Frankel also sued Broussard, Probe, Warburg Pincus, LLC, and the principals of GTP.
GTP and its principals were the only remaining defendants at the time of trial, but no recovery
was ordered against the principals. Further, Frankel Resources, LLC, was named as a plaintiff,
                                              7
       Among other affirmative defenses, GTP pleaded that Frankel released all its
claims. GTP also filed a counterclaim, alleging Frankel breached the Settlement
Agreement; or, alternatively, if the Settlement Agreement were rescinded,
requesting a declaratory judgment that Frankel forfeited its interests in prospects
sold to Probe. GTP filed a third-party claim against Frankel’s principal, Scott
Frankel, asserting he is liable under an alter-ego theory for Frankel’s obligations.

C.     The Jury Findings

       A jury heard extensive evidence during a two-week trial and the jury charge
consisted of twenty-five questions.4

       The jury made the following findings relative to Frankel’s various claims:

       Breach of the Participation Agreement
       The jury found each GTP entity breached the Participation Agreement and
       assessed total damages of $342,717, representing the value of the interest
       Frankel was entitled to receive in the Probe transaction less any expenses it
       would have incurred in connection with the transaction. However, the jury
       also found GTP’s breach was excused by Frankel’s prior material breach,
       which was not excused.
       Breach of the Retainer Agreement
       The jury found that PetroVal breached the Retainer Agreement but declined
       to assess any damages, in the same category that was submitted to the jury
       relative to breach of the Participation Agreement––the value of the interest
       Frankel was entitled to receive in the Probe transaction less any expenses it
       would have incurred in connection with the transaction.


but only Frankel Offshore Energy, Inc. is a party to the judgment. Therefore, we will discuss
only the causes of action between GTP and Frankel Offshore Energy, Inc., the entity we refer to
as “Frankel.”
       4
          Because some legal issues remained outstanding when the charge was submitted, the
trial court refrained from predicating the jury’s answers to some questions on its answers to other
questions; instead, the trial court submitted all relevant factual inquiries it would need to later
resolve the legal issues.
                                                8
       Breach of Fiduciary Duty
       The trial court instructed the jury that GTP owed Frankel a fiduciary duty.
       The jury found that each GTP entity breached its fiduciary duty, Frankel had
       “unclean hands,” and each GTP entity did not “knowingly” participate in the
       breach. The jury declined to assess any damages for breach of fiduciary
       duty in the two categories that were submitted to the jury: (1) the value of
       the interest Frankel was entitled to receive in the Probe transaction minus
       any expenses Frankel would have incurred in connection with that
       transaction; and (2) “the amount of profit, if any, obtained by any Defendant
       in connection with” its breach of fiduciary duty.
       Conspiracy
       The jury found that none of the GTP entities were part of a conspiracy that
       damaged Frankel.
       Punitive Damages
       Because the jury assessed no damages for breach of fiduciary duty and did
       not find a conspiracy, it did not answer the question inquiring whether the
       harm to Frankel from GTP’s breach of fiduciary duty and/or conspiracy
       resulted from “malice or fraud” on GTP’s part.
       Fraudulent Inducement
       The trial court instructed the jury that the fraudulent-inducement release did
       not bar Frankel’s fraudulent-inducement claim. The jury found that at least
       one GTP entity fraudulently induced Frankel into signing the Settlement
       Agreement.

       With respect to GTP’s counterclaim, the jury found that each GTP entity
materially breached the Settlement Agreement but the breach was excused, Frankel
materially breached the Settlement Agreement but its breach was excused, and
GTP breached the agreement first. The jury assessed $18,000 in damages for
Frankel’s breach.5 With respect to GTP’s third-party claim, the jury found Scott

       5
         Frankel also pleaded that GTP breached the Settlement Agreement, but no jury question
was submitted for the jury to assess damages, apparently consistent with Frankel’s request for
rescission. Rather, relative to contract claims, Frankel proceeded to the jury solely on the alleged
breaches of the Participation Agreement and the Retainer Agreement.
                                                 9
Frankel was “responsible” for Frankel’s conduct, which, based on accompanying
instructions, meant that, among other elements, Scott Frankel “caused [Frankel] to
be used for the purpose of perpetuating and did perpetuate an actual fraud on FGP
primarily for the direct personal benefit of Scott Frankel.”
      Finally, the jury found the same amount of reasonable attorneys’ fees each
for Frankel and GTP: $1,000,000 for trial; $250,000 for appeal to a court of
appeals; and $50,000 for appeal to the Supreme Court of Texas.

D.    Post-Trial Proceedings and Judgment

      If judgment had been rendered in conformity with the jury’s verdict, Frankel
would not have been entitled to any monetary recovery because the jury found no
liability, declined to assess damages, or found that GTP prevailed on an affirmative
defense, on all Frankel’s claims for damages. However, Frankel filed a post-trial
motion asking the trial court to rescind the Settlement Agreement based on the
jury’s finding it was fraudulently induced and award more than $8 million for
equitable disgorgement based on the jury’s finding that GTP breached fiduciary
duties.

      In its response and own post-trial motion, GTP argued that rescission of the
Settlement Agreement was improper because, among other grounds, Frankel
released its fraudulent-inducement claim. GTP requested judgment of $18,000
plus attorneys’ fees in its favor based on the finding that Frankel breached the
Settlement Agreement.      GTP also advanced various grounds in opposition to
Frankel’s request for equitable disgorgement.




                                          10
       On December 8, 2010, the trial court signed an Amended Final Judgment,6
granting Frankel’s requests for rescission and equitable disgorgement, rendering a
take-nothing judgment on all other claims and counterclaims, and explaining its
rulings:
       Rescission of the Settlement Agreement
       The trial court concluded the fraudulent-inducement release was
unenforceable because the parties were fiduciaries pursuant to Delaware law;
therefore, the Settlement Agreement was not an arm’s length transaction. The trial
court further concluded that a fraudulent-inducement release between fiduciaries is
enforceable only if they first contractually disavow their respective fiduciary
duties. The trial court also rejected GTP’s other grounds for opposing rescission.
Accordingly, the trial court ordered rescission of the Settlement Agreement and
required each party to return payments and interests received pursuant to the
Settlement Agreement.
       Equitable disgorgement
       The trial court recited that it had discretion to grant Frankel’s request for
equitable disgorgement of GTP’s profits resulting from its breach of fiduciary
duties but awarded less than the amount requested based on the jury’s finding that
Frankel had unclean hands. The court also noted that the jury’s “no” answers to
questions asking whether GTP acted with malice or fraud, or knowingly breached
fiduciary duties, had “no bearing” on the decision to award equitable
disgorgement. The trial court ordered that Frankel recover a total of $4,010,175.06
for equitable disgorgement, allocated as follows: $1,359,643.55 from Grimes;



       6
       The trial court originally signed a final judgment but then signed the Amended Final
Judgment (the operative judgment) solely to correct a party’s name.
                                            11
$1,970,959.73 from PetroVal; and $679,571.78 from Texas Standard. The trial
court also awarded post-judgment interest on this recovery.
      Take-nothing orders
      The trial court ordered that Frankel take nothing on all of its other claims
consistent with the jury findings, as recited above.
      Having rescinded the Settlement Agreement, the trial court disregarded the
jury findings regarding breach of the Settlement Agreement and ordered that GTP
take nothing on its counterclaim for Frankel’s breach. The trial court also ordered
that GTP take nothing on its request for a declaratory judgment. Because of these
rulings, the trial court stated that the finding Scott Frankel is an alter ego of
Frankel was irrelevant.
      Finally, the trial court denied all parties’ request for attorneys’ fees because
no party was awarded damages on a claim for which attorneys’ fees are
recoverable.
      GTP filed a post-judgment motion, requesting the trial court to rule whether
the disgorgement award is punitive or compensatory in nature because the
characterization affected applicability of settlement credits and the amount of
GTP’s supersedeas bond. The trial court signed an order stating the disgorgement
award is “punitive in nature.” GTP timely filed a motion to modify the judgment
or alternatively motion for new trial, which the trial court denied by written order.

                                    II. ANALYSIS

      In three issues, GTP contends (1) the trial court erred by rescinding the
Settlement Agreement because the fraudulent-inducement release was enforceable
even if the parties were fiduciaries, (2) the trial court erred by concluding the
parties had a fiduciary relationship, and (3) the equitable-disgorgement award
violated various procedural and substantive principles.
                                          12
      GTP advances its first issue, challenging rescission of the Settlement
Agreement, to support the full relief GTP requests on appeal: (1) reversal of the
rescission order and concomitant requirement that the parties return benefits
received under the Settlement Agreement; (2) reversal of the equitable-
disgorgement award against GTP on the ground that, in the Settlement Agreement,
Frankel released the underlying claim for breach of fiduciary duties; and (3)
judgment in GTP’s favor for $18,000, plus attorneys’ fees, based on the jury’s
finding that Frankel breached the Settlement Agreement.           Apparently, GTP’s
second and third issues are alternative contentions because prevailing on only one
or more of these contentions would entitle GTP to reversal of the equitable-
disgorgement award but not necessarily the order of rescission.

      For the reasons set forth below, we hold the trial court erred by rescinding
the Settlement Agreement because the fraudulent-inducement release precluded all
of Frankel’s fraudulent-inducement claims that are supported by the evidence. We
will first set forth our reasoning for this holding and then apply our holding to
address the appellate relief requested by GTP.

A.    Applicable Law

      Schlumberger Technology Corp. v. Swanson, 959 S.W.2d 171 (Tex. 1997),
Forest Oil Corp. v. McAllen, 268 S.W.3d 51 (Tex. 2008), and Italian Cowboy
Partners, Ltd. v. Prudential Insurance Co. of America, 341 S.W.3d 323 (Tex.
2011) are the seminal cases on enforceability of a disclaimer of reliance or other
provision in a settlement agreement waiving a fraudulent-inducement claim. In
Schlumberger, the court emphasized that the principle recited in earlier cases
recognizing fraud vitiates a contract must be weighed against the competing
concern that parties should be able to fully and finally resolve their disputes by

                                        13
bargaining for and executing a release barring all further disputes. 959 S.W.2d at
179. Citing this latter concern, the court held, “a release that clearly expresses the
parties’ intent to waive fraudulent inducement claims, or one that disclaims
reliance on representations about specific matters in dispute, can preclude a claim
of fraudulent inducement.” Id. at 181.

      The court further remarked that a disclaimer will not always preclude a
fraudulent-inducement claim.      Id.    However, on the particular Schlumberger
record, the disclaimer conclusively negated the reliance element of the claim. Id.
In support, the court considered the language of the disclaimer under well-
established rules of contract construction and circumstances surrounding its
formation.    Id. at 179–80.      The plaintiffs clearly disclaimed reliance on
representations by the defendant about the subject matter of the agreement
containing the disclaimer. Id. at 180. Other pertinent factors were that the parties
executed the agreement to end their “deal” and resolve a dispute regarding the
project at issue, both were represented by highly competent legal counsel, the
parties dealt at arm’s length, and both were “knowledgeable and sophisticated
business players.” Id.

      Later, in Forest Oil, the court upheld a disclaimer of reliance in a settlement
agreement that was intended to resolve both past and future claims. 268 S.W.3d at
53–54, 56–58. The court reaffirmed that facts may exist showing such a provision
lacks “‘the requisite clear and unequivocal expression of intent necessary to
disclaim reliance’” but stated a court must always examine the contract and totality
of the circumstances to determine if the disclaimer is binding. Id. at 60 (quoting
Schlumberger, 959 S.W.2d at 179). Because courts of appeals had seemingly
disagreed since Schlumberger on which factors were most relevant, the Forest Oil
court held that the following should guide a decision on enforceability of a
                                          14
disclaimer of reliance: “(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.” Id. The court also observed that, if the parties, like
those in Schlumberger, are effecting a “once and for all” settlement of claims, such
fact may also support enforcement of a fraudulent-inducement release. Id. at 58.

       Subsequently, in Italian Cowboy, the court highlighted what the Forest Oil
court had enumerated as the fifth “factor” and stated that whether the parties
expressed a “clear and unequivocal” intent to disclaim reliance on representations
or to waive fraudulent-inducement claims is a threshold requirement which must
be satisfied before consideration of the circumstances surrounding contract
formation (the other Forest Oil factors). See Italian Cowboy, 341 S.W.3d at 331–
37 & n.4, n.8; see also Allen v. Devon Energy Holdings, L.L.C., 367 S.W.3d 355,
382 (Tex. App.—Houston [1st Dist.] 2012, pet. filed) (citing Italian Cowboy when
stating that clarity requirement is threshold hurdle which must be passed for
enforcement of disclaimer and provision lacking clear and unequivocal disclaimer
will not preclude fraudulent inducement claim regardless of surrounding
circumstances).7


       7
         The Italian Cowboy court did not specify whether the clarity consideration, in addition
to constituting a threshold requirement for enforceability, also remains part of the additional
analysis of examining the “totality of the circumstances”; i.e., weighing clarity of the provision
along with the extrinsic factors concerning contract formation to determine whether a provision
which is sufficiently clear to pass the threshold hurdle is otherwise enforceable. See Allen, 367
S.W.3d at 383 n.26. However, we agree with the Allen court that the clarity consideration
remains a factor for determining enforceability of the provision because clarity is plainly one of
the circumstances encompassed in a “totality of the circumstances” test. See id.
                                               15
          Finally, whether a provision constitutes an adequate release of fraudulent-
inducement claims is a question of law. See Italian Cowboy, 341 S.W.3d at 333
(citing Schlumberger, 959 S.W.2d at 181).

B.        Application of Law to Fraudulent-Inducement Release in the Present
          Case
          GTP contends that application of the Forest Oil factors militates
enforcement of the fraudulent-inducement release in the present case and the trial
court erred by ruling that the release was unenforceable because the parties were
fiduciaries. On appeal, Frankel urges the trial court’s reasoning was correct, but
Frankel also advances alternative grounds for upholding the trial court’s ruling that
the provision at issue does not preclude Frankel’s request for rescission based on
fraudulent inducement: (1) any fraudulent-inducement release is unenforceable by
Grimes because it was not a party to the Settlement Agreement; (2) the provision
fails to satisfy the “clear and unequivocal” intent requirement and the Forest Oil
factor pertaining to negotiation of the contract and application of all factors weighs
against enforcement; and (3) even if the provision is an enforceable release of
Frankel’s claim based on extra-contractual fraud, the provision is inapplicable to
Frankel’s claim based on misrepresentations within the Settlement Agreement
itself.

          1.    Grimes as a party to the Settlement Agreement

          Preliminarily, we address Frankel’s assertion that there was no release of the
“Grimes” entity which is a party to the present case because it was not a party to
the Settlement Agreement. As Frankel notes, the entity named as a party at the
outset of the Settlement Agreement and a signatory thereto is “Grimes Energy,
Inc.,” whereas the party to the present case is “Grimes Energy Co.” David Grimes,
the principal of “Grimes Energy Co.,” testified the name on the Settlement
                                            16
Agreement was a mistake and “Grimes Energy, Inc.” did not exist. Thus, Frankel
suggests it did not release “Grimes Energy Co.” from any claims. We disagree.

      In construing a contract, we must ascertain and give effect to the parties’
intentions as expressed in the instrument. See Frost Nat’l Bank v. L & F Distribs.,
Ltd., 165 S.W.3d 310, 312–13 (Tex. 2005). Although “Grimes Energy, Inc.” did
not exist, the Settlement Agreement clearly demonstrates Frankel’s intent to
contract with the correct entity, “Grimes Energy Co.” When reciting at the outset
that “Grimes Energy, Inc.” was a party to the Settlement Agreement, the parties
assigned the moniker “Grimes” to this entity and defined the monikor “GTP” to
include “Grimes.” The parties then made various references to “Grimes” or “GTP”
when reciting the history of the parties’ relationship and dispute and setting forth
the parties’ obligations under the Settlement Agreement, including payments and
assignments to be made by “Grimes” and/or “GTP” to Frankel. Accordingly, in
the Settlement Agreement, Frankel acknowledged that, irrespective of the
misnomer, the actual party thereto was “Grimes Energy Co.”; it is undisputed
“Grimes Energy Co.” is the party with whom Frankel had a relationship and
subsequent dispute, and it is axiomatic Frankel did not have a relationship and
dispute with, or agree to accept benefits under the Settlement Agreement from, a
non-existent entity.

      Furthermore, in its live petition, Frankel named both “Grimes Energy, Inc.”
and “Grimes Energy Company” as defendants, apparently out of caution, to name
the actual “Grimes” entity with whom Frankel had a dispute and the “Grimes”
entity listed, albeit incorrectly, on the Settlement Agreement. In the petition,
Frankel assigned the moniker “Grimes Energy” to both entities. Later in the
petition, Frankel alleged that “Grimes Energy . . . signed [the Settlement

                                         17
Agreement] . . . .” We construe this allegation as a judicial admission that “Grimes
Energy Co.,” the party to the present case, was a party to the Settlement
Agreement. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905
(Tex. 2000) (stating, “judicial admission must be a clear, deliberate, and
unequivocal statement . . . and occurs when an assertion of fact is conclusively
established in live pleadings . . . .”). Accordingly, “Grimes Energy Co.” enjoys the
benefit of any enforceable release of “Grimes” contained in the Settlement
Agreement.

      2.      Whether “the release language is clear and unequivocal” and
              enforceability relative to alleged misrepresentations within the
              Settlement Agreement
      Although the trial court refused to enforce the fraudulent-inducement release
based on the “arm’s length transaction” factor, we first consider the parties’ dispute
regarding whether Frankel clearly and unequivocally released fraudulent-
inducement claims because this is actually a threshold requirement. See Italian
Cowboy, 341 S.W.3d at 331–37 & n.4, n.8; Allen, 367 S.W.3d at 382. Frankel also
argues that any enforceable release of Frankel’s claim based on extra-contractual
fraud would not preclude Frankel’s fraudulent-inducement claim based on GTP’s
alleged misrepresentations within the Settlement Agreement about an obligation
thereunder. We consider these issues together because we conclude that Frankel
clearly and unequivocally released fraudulent-inducement claims based on extra-
contractual    fraud,   but   not    fraudulent-inducement      claims    based    on
misrepresentations within the Settlement Agreement.         However, the evidence
conclusively establishes there were no such misrepresentations in the Settlement
Agreement itself.


                                          18
       a.      Release of fraudulent-inducement claims based on extra-
               contractual fraud8
       The relevant language in the release provides:
               [Frankel] . . . does hereby release, acquit and forever discharge
       Grimes, Texas Standard and PetroVal . . . from all existing, future,
       known and unknown claims, demands and causes of action for all
       existing, future, known and unknown damages and remedies, which
       have accrued or may ever accrue to [Frankel] . . . for or on account of
       (i) the claims made by it in the Bankruptcy Proceeding, (ii) any and all
       claims which might relate in any way to such claims, (iii) any and all
       claims which were brought or which could have been brought in the
       Bankruptcy Proceeding or in any other litigation; all of the foregoing
       shall include, but not be limited to, all claims, demands, and causes of
       action of any nature, whether in contract or in tort, or arising under or
       by virtue of any statute or regulation, that are now recognized by law
       or that may be created or recognized in the future by any manner,
       including without limitation, by statute, regulation or judicial
       decision, for past, future, known and unknown personal injuries,
       property damages, and all other losses, damages or remedies of any
       kind that are now recognized by law or that may be created or
       recognized in the future, by any manner, including without limitation,
       by statute, regulation or judicial decision, including, but not limited to
       all actual damages, all exemplary and punitive damages, all statutory
       interest or penalties of any kind, fraud in the inducement of this
       Agreement, and pre- and post judgment interest of any and all claims,



       8
         Relative to extra-contractual fraud, Frankel cites GTP’s alleged concealments or failures
to disclose. Frankel pleaded and emphasizes in its appellate brief that GTP concealed it had
formed Trifecta and was negotiating the Probe transaction. In its appellate brief, Frankel also
complains that, before execution of the Settlement Agreement, GTP failed to disclose that GTP
(through Trifecta) had renewed a farmout, East Cameron 246 (which was subsequently sold to
Probe), using consideration paid by Frankel with no cost to GTP. The jury was instructed that
fraud includes affirmative misrepresentations, concealments, or failures to disclose. Although
Frankel cites GTP’s alleged concealments or failures to disclose, our discussion of the
fraudulent-inducement release relative to “extra-contractual fraud” includes any extra-contractual
actions or omissions which constituted fraud on GTP’s part. Our discussion under this subsection
is confined to Frankel’s fraudulent-inducement claims based on extra-contractual fraud.
                                               19
       excepting only such claims as may arise in the future out of the
       obligations under this Agreement.9

(emphasis added).
       Frankel advances several reasons why this provision does not contain a clear
and unequivocal release of fraudulent-inducement claims.
       First, Frankel suggests the above-emphasized phrase “fraud in the
inducement of this Agreement,” when considered in context of the entire provision,
does not clearly express its intent to release fraudulent-inducement claims. As
Frankel asserts, it released all claims “for or on account of” three categories of
claims enumerated as (i), (ii), and (iii). After identifying the three categories, the
provision states, “all of the foregoing shall include . . .” followed by a description
of various claims, remedies, or damages, including “fraud in the inducement of this
Agreement.” Based on this language, Frankel contends it released a claim for
“fraud in the inducement of this Agreement” only if the claim fell within one or
more of the three categories but Frankel’s claim did not fall into any of the
categories.
       With respect to category (i), Frankel argues its fraudulent-inducement claim
was not a “claim[] made by [Frankel] in the Bankruptcy Proceeding.”
       With respect to category (ii), Frankel argues its fraudulent-inducement claim
does not “relate in any way to such claims [made in the Bankruptcy Proceeding]”
because Frankel’s claims in the Bankruptcy Proceeding involved exclusively its
disputes with the unrelated creditor who filed the proceeding.
       With respect to category (iii), Frankel argues its fraudulent-inducement
claim was not one “brought or which could have been brought in the Bankruptcy
       9
         For ease in construing portions of the release pertinent to the present issues, we have
omitted language stating the release encompassed the parties’ assigns, affiliates, officers, agents,
etc. because there is no issue involving release of any such other persons or entities.
                                                20
Proceeding or in any other litigation” because (1) Frankel discovered the fraud
after the Bankruptcy Proceeding was dismissed, and (2) the quoted language
necessarily means the past tense—claims accruing before execution of the
Settlement Agreement—but the fraudulent-inducement claim could not have
accrued until execution of the Settlement Agreement, at the earliest, and, in fact,
did not accrue until Frankel later discovered the fraud.
      We conclude that the fraudulent-inducement claim is encompassed in, at
least, category (ii)—“any and all claims which might relate in any way to” “the
claims made by [Frankel] in the Bankruptcy Proceeding.”
      First, we reject Frankel’s suggestion that “the claims made by [Frankel] in
the Bankruptcy Proceeding” involved exclusively its dispute with the unrelated
creditor. In construing a contract, we presume the parties intended every clause to
have some effect. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.
1996); see Schlumberger, 959 S.W.2d at 179 (stating that well-established rules of
contract construction governed whether provision expressed requisite clear and
unequivocal intent to disclaim reliance).      We consider the entire writing and
attempt to harmonize and give effect to all provisions by analyzing the provisions
with reference to the whole agreement. Frost Nat’l Bank, 165 S.W.3d at 312.

      If “the claims made by [Frankel] in the Bankruptcy Proceeding” meant only
Frankel’s dispute with the unrelated creditor, then there was no reason for Frankel
to release GTP for those claims. Instead, the parties clearly intended to effect a
release of Frankel’s claims against GTP, the party to the Settlement Agreement. In
the preamble of the Settlement Agreement, the parties recited the basis for their
respective claims against each other and that they executed the agreement to
resolve all of those claims. In fact, Frankel’s release is contained in a section of
the Settlement Agreement entitled “MUTUAL RELEASES.” Therefore, Frankel’s
                                          21
release of GTP for “the claims made by [Frankel] in the Bankruptcy Proceeding”
encompassed Frankel’s claims against GTP.
       Category (ii) is broad: Frankel released GTP for “any and all claims which
might relate in any way to” Frankel’s claims against GTP in the Bankruptcy
Proceeding. Because the parties executed the Settlement Agreement to resolve
Frankel’s claims against GTP in the Bankruptcy Proceeding, Frankel’s claim for
fraudulent inducement of the Settlement Agreement “relate[s] in any way to”
Frankel’s claims against GTP in the Bankruptcy Proceeding. In fact, Frankel does
not contend that the fraudulent-inducement claim fails to satisfy category (ii) if
category (i) includes Frankel’s claims against GTP in the Bankruptcy Proceeding.
Frankel merely asserts that category (ii) cannot apply because category (i) means
only Frankel’s claims against the unrelated creditor. Because we have rejected
Frankel’s proposed construction of category (i), we also reject its reasoning
relative to category (ii).
       Moreover, we can conceive of no purpose for the parties to include a release
of claims for “fraud in the inducement of this Agreement” other than the sole
purpose denoted in this plain language. The language is meaningless if, as posited
by Frankel, a claim for fraudulent inducement of this particular Settlement
Agreement was released only if it fit within one of the three categories but it could
not have possibly fit within one of the categories. Rather, we conclude the parties
included the language to express a clear and unequivocal intent to release a claim
for fraudulent inducement of the Settlement Agreement and essentially defined
such a claim as encompassed within the enumerated categories.
       Additionally, Frankel asserts that the phrase “fraud in the inducement of this
Agreement” is included within a list of damages and thus he did not expressly


                                         22
release a “claim” for fraudulent inducement. Frankel refers to the portion of the
provision that follows the three categories of released claims:
      all of the foregoing shall include, but not be limited to, all claims . . .
      for past, future, known and unknown personal injuries, property
      damages, and all other losses, damages or remedies of any kind . . .
      including, but not limited to all actual damages, all exemplary and
      punitive damages, all statutory interest or penalties of any kind, fraud
      in the inducement of this Agreement, and pre- and post judgment
      interest of any and all claims . . . .

(emphasis added).

      We acknowledge that the phrase “fraud in the inducement of this
Agreement” is not directly included in the description of the type of claims
released, but instead is included within the more specific description that follows
of the type of “losses, damages or remedies” for which claims are released and
then intermingled among a list of various types of damages. However, we must
again presume that the parties intended the phrase “fraud in the inducement of this
Agreement” to have some effect. See Heritage Res., Inc., 939 S.W.2d at 121.
Because fraudulent inducement is not a type of “loss[], damages or remed[y],” the
only possible reason for including the phrase is the parties’ intent to release any
claim for “losses, damages or remedies” based on “fraud in the inducement of this
Agreement,” which includes the remedy of rescission.

      Next, Frankel contends there is no clear and unequivocal release of
fraudulent-inducement claims because, unlike the following Schlumberger and
Forest Oil provisions, Frankel did not expressly or implicitly disclaim reliance on
GTP’s misrepresentations:
      [E]ach of us . . . expressly warrants and represents and does hereby
      state . . . and represent . . . that no promise or agreement which is not
      herein expressed has been made to him or her in executing this
                                          23
      release, and that none of us is relying upon any statement or
      representation of any agent of the parties being released hereby.
      Each of us is relying on his or her own judgment . . . .
Schlumberger, 959 S.W.2d at 180.

      Each of the Plaintiffs and Intervenors expressly warrants and
      represents and does hereby state and represent that no promise or
      agreement which is not herein expressed has been made to him, her,
      or it in executing the releases contained in this Agreement, and that
      none of them is relying upon any statement or any representation of
      any agent of the parties being released hereby. Each of the Plaintiffs
      and Intervenors is relying on his, her, or its own judgment . . . .
Forest Oil, 268 S.W.3d at 54 n.4.

      Although the disclaimer-of-reliance language in Schlumberger and Forest
Oil was sufficient to release the fraudulent-inducement claims in those cases, the
Texas Supreme Court has not imposed a requirement that an effective release of
fraudulent-inducement claims must contain disclaimer-of-reliance language. See
generally Italian Cowboy, 341 S.W.3d 323; Forest Oil, 268 S.W.3d 51;
Schlumberger, 959 S.W.2d 171. Rather the Schlumberger court stated, “a release
that clearly expresses the parties’ intent to waive fraudulent inducement claims, or
one that disclaims reliance on representations about specific matters in dispute, can
preclude a claim of fraudulent inducement.” Schlumberger, 959 S.W.2d at 181
(emphasis added); accord Italian Cowboy, 341 S.W.3d at 332 n.4. In fact, the
release in the present case is broader than a disclaimer of reliance because reliance
is only one element of a fraudulent-inducement claim. See Formosa Plastics Corp.
USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 47–48 (Tex. 1998).
      Finally, Frankel suggests there was no effective fraudulent-inducement
release because the Settlement Agreement lacked a merger or integration clause.
In Italian Cowboy, the court held that a merger clause alone was insufficient to

                                         24
constitute a disclaimer of reliance and thus did not bar fraudulent-inducement
claims. 341 S.W.3d at 331–37. However, the court did not hold that an agreement
must contain both a merger clause and either an express waiver of fraudulent-
inducement claims or disclaimer of reliance in order to effect a release of
fraudulent-inducement claims. See id. In fact, the Italian Cowboy court reiterated
the supreme court’s earlier statement in Schlumberger that either of the latter two
provisions is effective to release fraudulent-inducement claims. 341 S.W.3d at 332
& n.4 (citing Schlumberger, 959 S.W.2d at 179, 181).

      In summary, in the Settlement Agreement, the parties clearly and
unequivocally expressed their intent to release fraudulent-inducement claims based
on extra-contractual fraud.

      b.     Release of fraudulent-inducement claims based on alleged
             misrepresentations within the Settlement Agreement
      Frankel asserts that no Texas authority has held that a fraudulent-inducement
release or disclaimer of reliance is enforceable if the alleged fraud was a
misrepresentation in the contract containing the release or disclaimer. Frankel also
suggests that the specific language of the release precludes application to
misrepresentations within the Settlement Agreement. We need not decide whether
a fraudulent-inducement release or disclaimer is generally enforceable when the
alleged fraud is a misrepresentation within the contract because we agree the
parties in the present case did not express in the Settlement Agreement a clear and
unequivocal intent to preclude fraudulent-inducement claims based on such a
misrepresentation.
      The following phrase is at the end of the release: “excepting only such
claims as may arise in the future out of the obligations under this Agreement.” The
parties did not clearly confine this exception to claims for breach of the Settlement
                                         25
Agreement. Rather, the broader preservation of claims “aris[ing] . . . out of the
obligations” under the Settlement Agreement can be construed as encompassing
even a claim for fraudulent inducement based on a misrepresentation within the
agreement regarding a party’s obligations thereunder.
       Frankel relies on a provision in the Settlement Agreement making the
following disposition of High Island Block A-96 (“High Island”):
       GTP shall hold its interests in . . . High Island Block A-96 in trust for
       the benefit of [Frankel] until November 1, 2009. At any time prior to
       November 1, 2009, upon [Frankel’s] request, GTP shall immediately
       assign (or cause to be assigned) to [Frankel] all of their right, title and
       interest in and to High Island Block A-96 (being an undivided
       seventy-five percent interest) . . . .

       Frankel contends GTP misrepresented its ownership interest, and ability to
assign that interest, in High Island because record title to 60% of the referenced
75% interest was owned by Texas Standard Oil & Gas Company (“TSO”), a
related but separate entity from Texas Standard Oil & Gas, L.P. (the party to the
Settlement Agreement and the present case) and GTP knew that TSO was in
bankruptcy and unable to transfer title to Frankel without approval of the
bankruptcy court.

       GTP responds that it did not make such misrepresentations because it held a
beneficial interest in High Island at the time the Settlement Agreement was
executed and had the ability to “cause to be assigned” its interest. We construe
GTP’s argument as a challenge to legal sufficiency of the evidence supporting the
jury’s implicit finding that GTP made misrepresentations within the Settlement
Agreement.10


       10
           In its original appellate brief, GTP did not specifically address alleged
misrepresentations in the Settlement Agreement. GTP specifically addressed this issue in its
                                            26
       When reviewing a legal-sufficiency contention, we review the evidence in
the light most favorable to the challenged finding and indulge every reasonable
inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822
(Tex. 2005). We credit favorable evidence if a reasonable fact finder could and
disregard contrary evidence unless a reasonable fact finder could not. Id. at 827.
The evidence is legally sufficient if it would enable a reasonable and fair-minded
person to reach the verdict under review. Id. There is “no evidence” or legally
insufficient evidence when (a) there is a complete absence of evidence of a vital
fact, (b) the court is barred by rules of law or evidence from giving weight to the
only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital
fact is no more than a mere scintilla, or (d) the evidence conclusively establishes
the opposite of the vital fact. See id. at 810; Merrell Dow Pharms., Inc. v. Havner,
953 S.W.2d 706, 711 (Tex. 1997). We hold the evidence conclusively establishes
GTP did not make the misrepresentation alleged by Frankel.

       The gist of Frankel’s complaint is that GTP misrepresented that it owned
75% record title in High Island and thus misrepresented it had the ability to assign
75% record title to Frankel. We disagree. At trial, the principals of both Grimes
and Texas Standard indeed acknowledged that GTP owned record title to 15% of
High Island but record title to the other 60% of the 75% “interest” referenced in the
Settlement Agreement was owned by TSO. However, according to the undisputed


reply brief, to respond to an argument in Frankel’s appellate brief. Frankel suggests that, in
GTP’s opening brief, it was required to challenge legal sufficiency of the evidence supporting
the jury’s implied finding of misrepresentations in the Settlement Agreement. We disagree. In
its original brief, GTP challenged the specific ground on which the trial court refused to enforce
the fraudulent-inducement release—the fiduciary status. GTP argued that the trial court’s
conclusion was erroneous and the release is enforceable under applicable law. GTP also
suggested that the trial court’s error probably caused rendition of an improper judgment.
Accordingly, GTP met the burden required of GTP in its original brief.
                                               27
testimony of Grimes and Texas Standard, GTP held a beneficial interest in the 60%
pursuant to a nominee agreement. Grimes testified that GTP’s representation in
the Settlement Agreement regarding its interest in High Island was true, explaining
that TSO held “bear [sic] record title” but the entities comprising GTP owned a
beneficial interest: “There’s a record title and there’s a beneficial or equitable title,
whatever you call that, but it was being held for the benefit of other parties by
[TSO], and it had full authority to assign it out to those parties.”           Timothy
Roberson, Texas Standard’s principal, concurred, testifying that Texas Standard
held beneficial title to High Island.

      In support, the evidence shows that High Island was a federal lease. At the
time the federal government accepted bids for High Island, Texas Standard was not
qualified to purchase federal leases. Hence, TSO, which was qualified, entered
into a nominee agreement with Texas Standard in August 2007, in which TSO
agreed to purchase the lease on behalf, and as nominee, of Texas Standard. In the
nominee agreement, TSO agreed that, if it were awarded the High Island lease, it
would promptly assign the lease to Texas Standard, which agreed to become
qualified to hold federal leases, although TSO had not yet assigned the lease to
Texas Standard when the Settlement Agreement was executed.

      Accordingly, the undisputed evidence shows that GTP did not hold 75%
record title to High Island at the time the Settlement Agreement was executed but
did hold at least a 75% beneficial interest.         However, contrary to Frankel’s
suggestion, GTP did not represent in the Settlement Agreement that it held 75%
record title. Instead, GTP promised to, upon Frankel’s request, “immediately
assign (or cause to be assigned) . . . all of [GTP’s] right, title and interest in and to
High Island Block A-96 (being an undivided seventy-five percent interest) . . . .”

                                           28
This promise cannot be construed as a representation that GTP held 75% record
title but rather an agreement to “immediately assign (or cause to be assigned)”
whatever “right, title and interest” GTP held, which GTP then defined as “an
undivided seventy-five percent interest.” (emphasis added).

      We afford words used in a contract their plain, ordinary, and generally
accepted meaning unless the contract shows the words were used in a different
sense. Heritage Res., Inc., 939 S.W.2d at 121; see Lesikar v. Moon, 237 S.W.3d
361, 367 (Tex. App.—Houston [14th Dist.] 2007, pet. denied); see also See City of
Houston v. Williams, 353 S.W.3d 128, 145 (Tex. 2011) (“[T]he doctrine of inclusio
unius . . . is the presumption that purposeful inclusion of specific terms in a writing
implies the purposeful exclusion of terms that do not appear.”). The parties did not
include any words in the Settlement Agreement modifying “interest” or specifying
what type of “undivided seventy-five percent interest” GTP held. “Interest,” by
itself, is a broad term and encompasses a multitude of property rights, including
“beneficial interest.” See Milner v. Milner, 361 S.W.3d 615, 620–21 (Tex. 2012)
(explaining “‘beneficial interest’ is profit, benefit or advantage resulting from
contract or ownership of estate as distinct from legal ownership or control”);
Black’s Law Dictionary 885 (9th ed. 2009) (defining “beneficial interest” as “[a]
right or expectancy in something (such as a trust or an estate), as opposed to legal
title to that thing.”).   Because GTP owned a 75% beneficial interest, any
representation in the Settlement Agreement that GTP owned “an undivided
seventy-five percent interest” was not false.

      Frankel’s contention that GTP misrepresented in the Settlement Agreement
its ability to assign 75% record title to High Island hinges on Frankel’s contention
that GTP misrepresented that it owned 75% record title. Because GTP did not

                                          29
represent it owned 75% record title, it did not misrepresent that it could
“immediately assign, or cause to be assigned” 75% record title, as suggested by
Frankel.11

       In summary, the evidence conclusively establishes that GTP did not
fraudulently induce Frankel to execute the Settlement Agreement based on any
misrepresentation in the agreement. Accordingly, we reject Frankel’s contention
that the fraudulent-inducement release does not preclude all of Frankel’s
fraudulent-inducement claims because GTP committed a form of fraud which was
not encompassed within the release.

       3.      Extrinsic Forest Oil factors

       Having concluded the Settlement Agreement satisfies the “clear and
unequivocal intent” requirement relative to extra-contractual fraud and that there
was no misrepresentation within the Settlement Agreement, we turn to the extrinsic
Forest Oil factors. Frankel does not dispute it was represented by counsel during

       11
          We acknowledge that only Texas Standard, not the other two GTP entities, was a party
to the nominee agreement with TSO, although Grimes testified that GTP paid for the record title
held by TSO. However, on appeal, Frankel does not argue that the other two GTP entities made
a misrepresentation because they lacked any interest in 60% of the referenced 75%. Instead, the
focus of Frankel’s complaint is the “record title” aspect of his contention, not any distinction
between GTP entities relative to their interest; i.e., Frankel complains (albeit incorrectly) that the
GTP entities represented in the Settlement Agreement they held, and would “immediately assign
(or cause to be assigned),” record title to Frankel, irrespective of which particular GTP entity
allegedly held the record title and would effect the transfer.
         Further, even if GTP had promised to “immediately assign (or cause to be assigned)”
record title to Frankel, Frankel complains that GTP misrepresented its ability to make the
assignment because not only did TSO (rather than GTP) own record title but also TSO was in
bankruptcy and could not effect a transfer without approval of the bankruptcy court. However,
contrary to Frankel’s suggestion, TSO’s bankruptcy petition was filed in June 2008—three
months after execution of the Settlement Agreement. Thus, GTP could not have misrepresented
its ability to “immediately assign (or cause to be assigned)” record title in High Island because
such interest was tied up in any bankruptcy proceeding. Nonetheless, GTP did not promise to
“immediately assign (or cause to be assigned)” record title.
                                                 30
negotiation and execution of the Settlement Agreement and Frankel was
knowledgeable about business matters. However, Frankel contends the release
does not entirely satisfy the factor pertaining to negotiation of the Settlement
Agreement or the “arm’s length transaction” factor and further argues that
application of all factors weighs against enforcement.

      a.     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”
      We will consider this factor next because it is also pertinent to our
application of the “arm’s length transaction” factor.

      There is nothing boilerplate about the Settlement Agreement; the contract is
clearly unique to the parties’ relationship and dispute. Indeed, Frankel does not
contest that the Settlement Agreement was negotiated. Rather, Frankel contends
that, during negotiations, the parties did not “specifically discuss[] the issue which
has become the topic of” the present dispute because such topic is the Probe
transaction and it is precisely this information that GTP concealed from Frankel in
order to induce the Settlement Agreement.

      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.

                                         31
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] . . . .”

      Although Frankel was unaware of the Probe transaction when it executed the
Settlement Agreement, an “issue” in both the earlier and present disputes is
whether Frankel had an interest in various prospects. Specifically, the earlier
dispute involved GTP’s claim that Frankel defaulted on various charges or cash
calls and thus forfeited its interest in certain prospects versus Frankel’s denial it
was in default, claim to an interest in certain prospects, and claim that GTP
breached the Participation Agreement. When resolving this dispute, the parties,
among other agreements, terminated their relationship as FGP and Frankel
relinquished its interest in certain prospects and any associated claims. Frankel
now claims an interest in prospects subsequently sold to Probe which purportedly
were FGP prospects or should have been pursued on behalf of FGP, including
some in which Frankel relinquished its interest in the Settlement Agreement.
Accordingly, the fact that the parties discussed an issue central to both the earlier
and present disputes supports a conclusion that the Settlement Agreement, with its
release of future claims including fraudulent inducement, was freely negotiated.

      b.     Whether “the parties dealt with each other in an arm’s length
             transaction”
      The trial court concluded that that fraudulent-inducement release was
unenforceable as a matter of law because the parties were fiduciaries and thus did
not “deal[] with each other in an arm’s length transaction.”         The trial court
concluded such a provision is enforceable only if the parties first contractually
disavow a fiduciary relationship.
                                         32
       The parties dispute whether they ever had a fiduciary relationship in the first
place. We will assume, solely for purposes of deciding enforceability of the
fraudulent-inducement release, that the parties had a fiduciary relationship relative
to their operation of FGP and performance of the Participation Agreement. 12 But
the parties also dispute whether they still owed each other any fiduciary duties
during negotiation and execution of the Settlement Agreement and thus whether it
was an arm’s length transaction.

       GTP suggests the parties no longer owed each other any fiduciary duties
because they had become adverse litigants (via GTP’s intervention in the
bankruptcy proceeding) when they executed the Settlement Agreement.                              In
contrast, Frankel cites Delaware and Texas authority for the proposition that
fiduciaries continue to owe each other duties even when their relationship has
become adverse or litigious. See Paige Capital Mgmt., LLC v. Lerner Master
Fund, LLC, Civil Action No. 5502-CS, 2011 WL 3505355, at *31 (Del. Ch. Aug.
8, 2011) (“As a matter of settled law, it is clear that the existence of a conflict does
not absolve a governing fiduciary of responsibility for acting in its own self-
interest.”); Schlumberger, 959 S.W.2d at 175 (recognizing that in Johnson v.
Peckham, 120 S.W.2d 786 (Tex. 1938), court held “partner selling his interest to
       12
           According to Frankel, Delaware law imposes a default fiduciary relationship on
members of an LLC unless that relationship is affirmatively disclaimed by the members. Under
a section entitled “Administration of this Agreement.,” the Participation Agreement contained
a provision entitled “No Fiduciary Relationship,” which stated, “Nothing in this Agreement is
intended to create a partnership, joint venture, agency, or other relationship creating fiduciary or
quasi-fiduciary duties or similar duties and obligations . . . .” Among other reasons, Frankel
contends this provision was insufficient to disclaim the default fiduciary relationship because the
Participation Agreement was not the operating agreement for the LLC and this language was not
an affirmative disclaimer. GTP disagrees with Frankel’s characterization of Delaware law but
alternatively contends this language was sufficient to disclaim any fiduciary duties. We need not
decide whether the parties had a fiduciary relationship relative to their operation of FGP and
performance of the Participation Agreement because we conclude existence of such a
relationship did not preclude enforcement of the fraudulent-inducement release.
                                                33
another partner has a fiduciary duty requiring full disclosure of all important
information about the value of the interest . . . even though the partners had
strained relations and one partner had sued for an accounting and dissolution of the
partnership”); Johnson, 120 S.W.2d at 788 (“If the existence of strained relations
should be suffered to work an exception, then a designing fiduciary could easily
bring about such relations to set the stage for a sharp bargain.”). Therefore,
Frankel maintains that, during negotiation of the Settlement Agreement, GTP owed
Frankel a duty to disclose the potential Probe transaction. Frankel suggests that
mere existence of this duty to disclose automatically vitiated any fraudulent-
inducement release. We disagree. Rather, we conclude that, even 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.13

       First, based on the general rationale for upholding a fraudulent-inducement
release or disclaimer of reliance, we refuse to adopt a blanket rule that such a
provision in a settlement agreement between fiduciaries is unenforceable. As the
Forest Oil court emphasized:

       Refusing to honor a settlement agreement—an agreement highly
       favored by the law—under these facts would invite unfortunate
       consequences for everyday business transactions and the efficient
       settlement of disputes. After-the-fact protests of misrepresentation are
       easily lodged, and 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.
       . . . If disclaimers of reliance cannot ensure finality and preclude post-
       deal claims for fraudulent inducement, then freedom of contract, even
       13
           We also need not address whether GTP owed Frankel fiduciary duties during
negotiation and execution of the Settlement Agreement because existence of such duties did not
necessarily vitiate the fraudulent-inducement release.
                                             34
      among the most knowledgeable parties advised by the most
      knowledgeable legal counsel, is grievously impaired.

Id. at 60–61 (emphasis in original) (citations omitted). 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 id.

      Further, Frankel cites no authority from the Texas Supreme Court or our
court holding that a fraudulent-inducement release or disclaimer of reliance in a
settlement agreement between fiduciaries is per se unenforceable. The trial court
and Frankel suggest that Schlumberger and Forest Oil stand for such a proposition.
In Schlumberger, the court indeed addressed enforceability of a disclaimer of
reliance only after concluding the parties were not fiduciaries and thus dealt with
each other in an arm’s length transaction. See 959 S.W.3d at 175–77. The court
first indicated that it considered this preliminary issue because both parties raised
the issue as relevant to enforceability of the disclaimer; the party urging
enforcement emphasized the transaction was arm’s length. See id. at 175–81. The
court did not directly state whether it would have addressed the fiduciary issue if
neither party had raised it. See id. However, the court later indicated that lack of a
fiduciary relationship was integral to the court’s decision to uphold the disclaimer.
See id. at 181 (“As there is no evidence of a fiduciary or confidential relationship,
the trial court correctly rendered a judgment . . . against [the plaintiffs] on their
claims of breach of fiduciary duty and fraudulent inducement.”). In any event, the
court did not expressly hold that a disclaimer between fiduciaries is per se
unenforceable. See id. at 175–81.


                                          35
       Nonetheless, when the Forest Oil court subsequently more clearly defined
existence of an arm’s length transaction as a relevant consideration, the court did
not expressly hold that a disclaimer is enforceable only if the settlement agreement
resulted from an arm’s length transaction or otherwise hold that a disclaimer
between fiduciaries is unenforceable. See 268 S.W.3d at 60. To the contrary, the
Forest Oil court referred to the five considerations listed therein as “facts . . . that
guided our reasoning [in Schlumberger]” and “factors . . . present in Schlumberger
and [in Forest Oil]”—not elements that all must be established for enforceability
of a disclaimer. Id. at 60. Although, as mentioned above, the Italian Cowboy
court subsequently expressed that a “clear and unequivocal” expression of the
parties’ intent to disclaim reliance on representations or to waive fraudulent-
inducement claims is an initial requirement, see 341 S.W.3d at 336, 337 n.8, the
other extrinsic considerations regarding the circumstances surrounding contract
formation are “factors”—not requisites for enforceability of a disclaimer. See
Italian Cowboy, 341 S.W.3d at 336, 337 n.8; McLernon v. Dynegy, Inc., 347
S.W.3d 315, 332–33 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (enforcing
disclaimer-of-reliance clause with only “scant” evidence regarding extent of
complaining party’s representation by counsel when all other Forest Oil
considerations were satisfied and stating that even if complaining party was not
represented by counsel, Forest Oil considerations are factors rather than elements);
Allen, 367 S.W.3d at 384 (stating that disclaimer of reliance may be upheld even
when all extrinsic factors are not satisfied).14


       14
          Frankel also argues that the present case is similar to Harris v. Archer, 134 S.W.3d 411
(Tex. App.—Amarillo 2004, pet. denied). In Harris, during negotiation of a settlement
agreement to dissolve a partnership, the defendant failed to disclose he was engaged in
negotiations to sell certain partnership property to a third party. Id. at 422–23. Several days
after execution of the settlement agreement, in which the defendant purchased the other partner’s
                                               36
       Moreover, as GTP asserts, the Forest Oil court did not prescribe the “one-
dimensional” requirement for the “arm’s length transaction” factor advocated by
Frankel and the trial court. Specifically, the court did not foreclose the possibility
that, considering all the circumstances, negotiation of a fraudulent-inducement
release between fiduciaries might bear aspects of an arm’s length transaction. See
generally Forest Oil, 268 S.W.3d at 60.

       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 to disclose. Even if GTP still owed Frankel
some duty to disclose, the whole purpose of the fraudulent-inducement release was
Frankel’s waiver of any claim that GTP violated that duty. Thus, consistent with
our reasoning that fiduciaries should be allowed to ensure finality to their disputes,
the pertinent inquiry is whether, considering all the circumstances, existence of the
fiduciary relationship vitiates a conclusion that Frankel bindingly waived its claim
that GTP violated the duty to disclose.


interests, he consummated the sale to the third party for significant profit. Id. at 419–21, 423–24.
In the other partners’ suit for breach of fiduciary duty based on the defendant’s failure to
disclose, the court of appeals rejected his argument that a release in the settlement agreement
barred the claim. Id. at 430–31. Frankel apparently argues Harris establishes that the existence
of a fiduciary relationship is an outcome-determinative factor when considering the effect of a
release of fraudulent-inducement claims. We disagree. Although the Harris court stressed that
the presence of a fiduciary relationship distinguished its case from Schlumberger, and stated the
Schlumberger court emphasized the lack of a fiduciary relationship during its analysis, the
Harris court did not conclude that fiduciaries may never disclaim reliance on a fiduciary’s
representations or duty to disclose information. Id. at 431. Instead, the court also focused on the
fact the partnership settlement did not include specific disclaimer-of-reliance language and that
the other partners were unaware the defendant had negotiated with the third party. Id. In fact,
the Harris court noted Schlumberger stands for the proposition that the effect of a disclaimer of
reliance should be determined “under the particular facts presented.” Id. Additionally, Harris
was decided pre-Forest Oil, in which the court expressed that whether the parties dealt at arm’s
length is a factor relative to enforcement of a disclaimer or fraudulent-inducement release. See
Forest Oil, 268 S.W.3d at 60.
                                                37
      Even if execution of the Settlement Agreement cannot be considered entirely
an arm’s length transaction because the parties were still fiduciaries, the Forest Oil
factors support enforceability of the fraudulent-inducement release. As we have
discussed, the fraudulent-inducement release is clear and unequivocal, Frankel was
represented by its own counsel, Frankel was sophisticated about business matters,
the Settlement Agreement was freely negotiated, and the parties specifically
discussed the issue which has become the topic of the present dispute. 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.

      Relative to these factors, we also consider it significant that, although
Frankel was unaware during settlement negotiations of GTP’s extra-contractual
fraud, the parties obviously discussed the subject about which GTP concealed
information—FGP prospects—because the Settlement Agreement recited the
parties’ dispute over whether Frankel had an interest in certain prospects, Frankel
relinquished an interest in certain prospects, and the parties terminated their
relationship as FGP.     Considering this fact, together with Frankel’s business
acumen and representation by counsel, Frankel 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. See id. at 58 (recognizing, “when knowledgeable parties expressly discuss
material issues during contract negotiations but nevertheless elect to include


                                         38
waiver-of-reliance and release-of-claims provisions, the Court will generally
uphold the contract”).

       Moreover, although not expressly listed as a factor in Forest Oil, the fact the
parties were adverse litigants when they executed the Settlement Agreement also
supports enforcement of the fraudulent-inducement release. This posture, again
considered together with Frankel’s business acumen and representation by counsel,
indicates Frankel understood that GTP was protecting its own interests by
negotiating inclusion of a fraudulent-inducement release, Frankel could not
reasonably rely on GTP to protect Frankel’s interests relative to this provision, and
Frankel needed to evaluate for itself whether the provision was in its best interest. 15

       Further, 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. Obviously, when the Settlement Agreement was
executed, Frankel did not believe that existence of any fiduciary relationship



       15
           GTP heavily relies on the fact the parties were adverse litigants when they executed the
Settlement Agreement, arguing, as mentioned above, that by virtue of this posture, they owed
each other no fiduciary duties. We generally acknowledge that, by the very nature of litigation,
adverse litigants cannot be saddled with all duties which might ordinarily accompany a fiduciary
relationship because it is axiomatic that a litigant cannot place the other litigant’s interests above
its own in all respects. See Crim Truck & Tractor Co. v. Navistar Int’l Transp. Corp., 823
S.W.2d 591, 594 (Tex. 1992) (recognizing the onerous burden that requires a party to place the
interest of the other party before his own is often attributed to a fiduciary duty). Nonetheless, we
need not parse out what, if any, duties may still exist even when fiduciaries have become adverse
parties in litigation. We do not foreclose the possibility that, under certain circumstances,
existence of a fiduciary relationship might vitiate a fraudulent-inducement release even if the
parties have become adverse litigants. We merely conclude that, under the circumstances of the
present case, the fact the parties were adverse litigants supports enforceability of the fraudulent-
inducement release.

                                                 39
vitiated a fraudulent-inducement release because it also accepted the benefit of
such a provision.

      The additional factor mentioned in Forest Oil also is satisfied in the present
case: the Settlement Agreement terminated the parties’ relationship.             This
consideration, combined with the fact the parties executed mutual fraudulent-
inducement releases, shows that, via these provisions, they deliberately intended to
ensure finality to their relationship and prevent further disputes.

      In summary, considering all of the Forest Oil factors, we conclude that that
evidence negates any notion that GTP, by virtue of the fiduciary relationship,
foisted a fraudulent-inducement release on an unwitting Frankel. Instead, the
factors demonstrate that, despite any fiduciary relationship, sophisticated parties,
represented by their own counsel, negotiated and voluntarily agreed to clear and
unequivocal, mutual provisions releasing any claims for fraudulent-inducement of
their Settlement Agreement.

      Finally, we reject the trial court’s reasoning that the parties were required to
contractually disavow any fiduciary duties in order to execute an enforceable
fraudulent-inducement release. In particular, we reject the proposition that Frankel
needed to engage in such formal exercise to know GTP was protecting its own
interests by requesting a release of fraudulent-inducement claims, understand the
effect of the provision, and realize Frankel was not forced to accept the provision.
We also agree with GTP that prescribing such a requirement could create
additional difficulties which might defeat the finality sought to be achieved via
enforcement of a fraudulent-inducement release; for example, the releasing party
might claim it was fraudulently induced to disavow fiduciary duties, thus
perpetuating the cycle of disputes.       Again, a court should focus instead on
                                          40
determining whether the fraudulent-inducement release is enforceable, despite
existence of a fiduciary relationship, based on all the circumstances.

       Accordingly, the trial court erred by rescinding the Settlement Agreement
because the fraudulent-inducement release was enforceable. We sustain GTP’s
first issue.

C.     Application of Our Holding to GTP’s Requested Relief

       1.      Order of rescission

       In light of our disposition of GTP’s first issue, we will reverse the trial
court’s order of rescission, with the concomitant rulings that the parties return
benefits already received pursuant to the Settlement Agreement.

       2.      Equitable-disgorgement award

       Because the Settlement Agreement is not rescinded, the entire release
provision is effective and bars Frankel’s breach-of-fiduciary-duties claim on which
the equitable-disgorgement award was based. We note Frankel does not argue that
the release, if enforceable, is inapplicable to its claim for breach of fiduciary
duties. Indeed, Frankel apparently sought rescission to pave the way for recovery
on its various claims.

       Nevertheless, we note that the breach-of-fiduciary-duties claim is
encompassed within categories (ii) and (iii) of released claims. With respect to
category (ii), Frankel’s claims that GTP concealed it had formed Trifecta and was
negotiating a sale of FGP prospects to Probe and used FGP’s confidential
information to market prospects for GTP’s own benefit (to the exclusion and
detriment of Frankel) were “unknown” “claims which . . . relate in any way” to the

                                         41
“claims made by [Frankel] in the Bankruptcy Proceeding”; i.e., Frankel’s claim in
the Bankruptcy Proceeding that it was not in default and indeed had an interest in
some of these prospects and GTP breached the Participation Agreement by failing
to use its best efforts to market prospects on behalf of FGP. Category (iii) is even
broader; Frankel’s grounds for alleging GTP breached fiduciary duties were
“unknown” “claims which . . . could have been brought in . . . any other litigation.”
Accordingly, the trial court erred by awarding equitable disgorgement.16

      3.        GTP’s claim for breach of the Settlement Agreement

      GTP also seeks to recover $18,000, plus $1,300,000 in attorney’s fees, based
on the jury’s finding that Frankel breached the Settlement Agreement.                        We
conclude GTP has not demonstrated it is entitled to such recovery.

      In response to six separate questions, the jury made the following findings
relative to the parties’ breaches of the Settlement Agreement:

      Question 8:              Each GTP entity committed a material breach.
      Question 9:              GTP’s material breach was excused by Frankel’s prior
                               material breach.
      Question 10:             Frankel committed a material breach.
      Question 11:             Frankel’s material breach was excused by one or more of
                               the following actions by GTP: (1) prior material breach;
                               (2) general fraud; (3) breach of fiduciary duties; or (4)
                               fraudulent inducement of the Settlement Agreement.
                               These grounds were submitted in one question generally
                               asking if Frankel’s breach was excused, rather than
                               itemized as separate inquiries, and the jury was not


      16
           In light of this conclusion, we need not address GTP’s second and third issues.

                                                42
                          instructed to specify which of the particular alternative
                          ground(s) supported the finding.
      Question 12:        GTP committed the first breach.
      Question 13:        $18,000 would fairly and reasonably compensate GTP
                          for damages resulting from Frankel’s material breach—
                          defined as the amount of “rental refunds and delay
                          rentals” GTP was entitled to, but did not, receive under
                          the Settlement Agreement.
      As GTP acknowledges, the jury found both parties materially breached, both
parties were excused, and GTP breached first. GTP apparently characterizes the
following as reflecting the jury’s findings:

          GTP immaterially breached first because its cash payment required under
          the Settlement Agreement was late (per Question 12, which did not
          include the term “material”)
          Frankel then materially breached by failing to pay GTP “rental refunds
          and delay rentals” as required under the Settlement Agreement (per
          Questions 10 and 13, which addressed Frankel’s “material” breach)
          GTP then materially breached (per Question 8)—a different action than
          its earlier immaterial breach (hence, the separate Question 12)
          Frankel’s breach was the first material breach (per Question 9, finding
          GTP’s material breach was excused by Frankel’s prior material breach,
          considered together with Question 11, finding Frankel’s material breach
          was excused but not limiting the grounds for excuse to any prior material
          breach by GTP)
      Therefore, GTP contends that it is entitled to recover $18,000 in damages
because Frankel committed the first material breach which was not excused by any
prior material breach of GTP. GTP cites Mustang Pipeline Co., Inc. v. Driver
Pipeline Co., Inc., 134 S.W.3d 195 (Tex. 2004), for the proposition that the
relevant inquiry is “which party materially breached first.”



                                          43
       Presuming, without deciding, that GTP’s characterization accurately reflects
the jury’s determination, we disagree that GTP has shown it is entitled to recover
damages simply because Frankel committed the first material breach. 17 Under
GTP’s interpretation of the jury’s findings, the jury did not find in response to
Question 11 that Frankel’s material breach was excused by a prior material breach
of GTP.     However, prior material breach was not the only possible ground for the
jury to find Frankel’s material breach was excused.

       For instance, the jury was instructed that general “fraud” was a ground for
excusing Frankel’s material breach. We note that it is not clear what “fraud” this
instruction references because it was submitted as a separate ground than
fraudulent inducement of the Settlement Agreement and Frankel did not expressly
plead any separate basis for fraud. Nevertheless, GTP does not argue that general
fraud was improperly submitted to the jury, the evidence is insufficient to support
any such finding, or this general fraud was not a ground for excusing Frankel’s
material breach. GTP does not advance any argument relative to how a finding of
general fraud should be considered in context of all the jury findings regarding
breaches of the Settlement Agreement or GTP’s proposed timeline regarding the
breaches. Under these circumstances, no proper basis has been established for
disregarding the jury’s finding in answer to Question 11 that Frankel’s material
breach of the Settlement Agreement was excused. In light of this finding, GTP
may not recover on its claim for breach of the Settlement Agreement.




       17
           Frankel argues that reconciling the jury’s findings demonstrates GTP committed the
first material breach. We need not decide which party’s construction is accurate because we
conclude GTP has failed to show it is entitled to recover damages even under its interpretation of
the jury’s answers.
                                               44
        Accordingly, although the Settlement Agreement is valid, we uphold the
trial court’s take-nothing judgment on GTP’s claim for breach of this contract,
albeit for a different reason than described by the trial court.

                                        III. CONCLUSION

        We reverse the portion of Paragraph D.1. of the judgment in which the trial
court ordered rescission of the Settlement Agreement.

        We reverse the portion of Paragraph D.4. of the judgment in which the trial
court ordered that Frankel recover $1,359,643.55 from Grimes, $1,970,959.73
from PetroVal, and $679,571.78 from Texas Standard, as equitable disgorgement
for their breaches of fiduciary duties.

        We reverse in its entirety Paragraph D.6. of the judgment, in which the trial
court (a) ordered rescission of the Settlement Agreement, ordered the parties to
return payments and interests already received under the Settlement Agreement,
and pronounced Frankel is relieved of any further obligations under the Settlement
Agreement, (b) ordered that Frankel recover $1,359,643.55 from Grimes,
$1,970,959.73 from PetroVal, and $679,571.78 from Texas Standard for their
breaches of fiduciary duties, and (c) awarded post-judgment interest on this
recovery.18

        We render judgment denying Frankel’s request for rescission of the
Settlement Agreement and ordering that Frankel take nothing on its request for
equitable disgorgement.
        18
           Most of paragraphs D.1. and D.4. contain the trial court’s reasoning for the relief granted.
However, the trial court actually orders rescission and awards equitable disgorgement at the end of these
respective paragraphs. Paragraph D.6. is a “CONCLUSION,” rendering judgment for Frankel for
rescission, equitable disgorgement, and post-judgment interest. Accordingly, we reverse all portions of
the judgment in which the trial court orders this actual relief.
                                                   45
      We affirm the remainder of the judgment.




                                              /s/   Charles W. Seymore
                                                    Justice




Panel consists of Justices Frost, Seymore, and Boyce (Frost, J., concurring).




                                         46
