Beard v. Perot, 2026 Tex. Bus. 65 (1st Div.)

2026 Tex. Bus. 65
The Business Court of Texas,
1st Division
JOSEPH BEARD, Plaintiff
v.
HENRY ROSS PEROT, JR.;
ANURAG JAIN; and PEROT
JAIN, L.P., Defendants
§
§
§
§
§
Cause No. 26-BC01B-0018
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OPINION ON DEFENDANTS ’ MOTION TO DISMISS
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Syllabus1
This opinion addresses the interplay between no-reliance, merger,
and no-other-representations clauses in commercial contracts and
their effect on fraudulent inducement and breach of oral contract
claims.
I. 	INTRODUCTION
[¶ 1] 	Plaintiff sued defendants, including his former employer, alleging
that they improperly withheld his right to a three percent carried interest
1 This syllabus is for the reader’s convenience. It is not part of the court’s opinion, and it is
not legal authority.
FILED IN
BUSINESS COURT OF TEXAS
BEVERLY CRUMLEY, CLERK
ENTERED
9/22/2026

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 2
“promote” based on a post-employment asset sale.
[¶ 2] 	The court considered defendants’ Rule 91a motion to dismiss
Plaintiff’s First Amended Petition (FAP). A pivotal issue is whether reliance
disclaimer, 	no-other-representations, 	and 	merger 	clauses 	in 	plaintiff’s
termination-related contracts defeat his fraud and contract claims based on
oral promises not written in either contract. 	Because plaintiff did not plead
facts overcoming those and other obstacles, the court dismissed those claims
with prejudice. Those rulings also required dismissal of his other claims. So,
the court dismissed the FAP with prejudice and reserved the attorneys’ fees
issue for further consideration.2 Plaintiff requested a written opinion. 	See
TEX . R. CIV. P. 360(a)(1); B.C.L.R. 5(g). This opinion assumes that these facts
from plaintiff’s FAP are true.
II. 	B ACKGROUND
A. Undisputed Facts
1. The Parties
[¶ 3] 	Plaintiff Joseph Beard is a United States Military Academy
graduate, a former U.S. Army Captain, and an experienced businessman who
2 See August 10, 2026, Order Granting Defendants’ Motion to Dismiss.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 3
founded his own company before joining Perot Jain.3
[¶ 4] 	Defendant Perot Jain, L.P., is an early-stage venture capital firm
founded by defendants Henry Ross Perot, Jr. and Anurag Jain.4
2. Beard’s Employment with Perot Jain
[¶ 5] 	In September 2015, Beard joined Perot Jain as its first “partner”
and managed the firm’s daily operations under Perot’s and Jain’s stewardship.5
Beard was “eligible for a three percent promote based on [his] involvement”
in the company.6 Beyond his Employment Agreement’s provisions, Jain and
Perot never formalized Beard’s three percent equity interests in Perot Jain’s
portfolio companies on which he worked.7
[¶ 6] 	Pursuant to the company’s honor-ethos, Perot Jain entrusted
Beard with extensive responsibilities, including signing authority for Perot
Jain.8 At one point, Beard solely held a bank account with a million dollars of
3 FAP ¶s 11, 14.
4 FAP ¶ 15.
5 FAP ¶ 16. Perot and Jain did not formally add Beard to the partnership structure. Id. ¶
17.
6 FAP ¶ 16; FAP Ex. A.
7 FAP ¶ 17.
8 FAP ¶ 18.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 4
Perot Jain assets.9
[¶ 7] 	Access 	Healthcare 	was 	Beard’s 	most 	time-consuming 	and
valuable portfolio company while he was a Perot Jain employee.10 Both Perot
and Jain told Beard to prioritize Access Healthcare.11
[¶ 8] 	For over four years, Beard functioned as an Access Healthcare
employee with an email address, title, and business cards. 12 He worked
directly with senior Access Healthcare executives, acting as its U.S.-based
Senior Vice President of Corporate Development.13 His notable achievements
include securing significant debt financing, leading a global merger and
acquisition deal, and taking on important corporate finance responsibilities.14
Beard created at least $128 million in value for Access Healthcare.15 His
Access Healthcare work went above and beyond the expectations of his role
and industry expectations of a venture capital investor.16
9 FAP ¶ 18.
10 FAP ¶ 19.
11 FAP ¶ 19.
12 FAP ¶ 20.
13 FAP ¶ 20.
14 FAP ¶ 20.
15 FAP ¶ 20.
16 FAP ¶ 20.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 5
3. The Separation Agreement and General Release
[¶ 9] 	In July 2020, after nearly five years of employmentand four years
of managing Access Healthcare and its core growth, Beard amicably left Perot
Jain to start a new business venture.17 Before his departure, the parties agreed
to his “Separation Agreement and General Release” (Separation Agreement)
and identified the post-employment payments Beard would receive.18
[¶ 10] 	Specifically, the Separation Agreement states:
1. 	In consideration of Beard entering into and performing the
covenants in 	Paragraphs 	2, 	3, 	4, 	5, 	6, 	7, 	and 	9 	of this
Agreement, [Perot Jain] shall provide the following to Beard in
accordance with and subject to the provisions of this Agreement
(the “Additional Consideration”):
* * *
(b) [Perot Jain] previously agreed that Beard would receive a
promote based on his involvement in the portfolio companies.
If the Effective Date occurs, Beard will maintain a vested
carried 	interest 	in the portfolio companies included in the
Attached Schedule A. Beard shall be allocated 3% out of the 20%
(15% of the total participation) carry assigned to Jain GP . . . as
the 	General 	Partner 	of 	Perot 	Jain, 	L.P. 	according 	to 	the
following:
• 	Carry will be applicable only to the companies identified in
Schedule A . . .19
17 FAP ¶ 22.
18 See FAP ¶ 22; FAP Ex. B.
19 FAP Ex. B at 1 (emphasis added).

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 6
* * *
[¶ 11] 	The Separation Agreement’s Schedule A listed thirty-seven
companies for which Beard could receive post-employment compensation.20
Access Healthcare is not listed.21
[¶ 12] 	In exchange, Beard acknowledged that he was not owed any
further payment from Perot Jain other than unpaid wages or un-reimbursed
expenses:
Except for [Perot Jain] related expenses if any, incurred by
Beard 	but 	not 	yet 	reimbursed 	by 	[Perot 	Jain], 	and 	other
compensation explicitly referenced in the agreement,22 Beard
acknowledges that he has been paid in full all amounts due and
payable to him by [Perot Jain] arising from or related in any way
to 	his 	employment 	by 	[Perot 	Jain], 	including, 	without
limitation, (a) all wages and unused vacation, (b) all bonus
and/or commission payments, (c) all amounts due under any
other agreements of any nature relating to [Perot Jain] or any of
its affiliates or to any property previously or currently owned by
[Perot Jain] or its affiliates. 	Other than unpaid wages, Beard
shall not assert any claim against [Perot Jain] or any of its
affiliates for any unpaid amounts due with respect to his
employment by [Perot Jain] or other rights referenced in this
20 FAP Ex. B at 2.
21 See FAP Ex. B at 5.
22 “Agreement” (capital “A”) is a defined term meaning the Separation Agreement itself.
Despite being un-capitalized, the surrounding context evidences the parties’ intent that
“the agreement” in ¶ 2 refers to the Separation Agreement. 	See Falk & Fish, LLP v.
Pinkston’s Lawnmower and Equipment, Inc., 317 S.W.3d 523, 527-28 (Tex. App.—5th
Dist. 2010, no pet.) (“With respect to typographical errors, written contracts will be
construed according to the intention of the parties, notwithstanding errors and omissions,
by perusing the entire document and to this end, words, names, and phrases obviously
intended may be supplied.” (quotations omitted)).

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 7
Paragraph 2.23
[¶ 13] 	The Separation Agreement also contained a “General Release
Agreement[,]” providing that:
In exchange for [Perot Jain’s] commitment to Provide the
Additional Consideration, Beard does hereby irrevocably and
unconditionally release, acquit and forever discharge [Perot
Jain] and all of its affiliates, all of the members, managers,
affiliates, parents, shareholders, partners, subsidiaries, officers,
directors, 	agents, 	employees, 	predecessors, 	successors 	and
assigns of [Perot Jain] or any of its affiliates including, but not
limited to, . . . 	Access Healthcare Services USA, LLC and its
affiliates, and any company in which H.R. Perot, Jr. or Anurag
Jain have an ownership interest . . . collectively referred to as
“the Company Releasees” from any and all claims, obligations,
actions, and causes of action in any way related to Beard’s
employment by [Perot Jain] or separation from said employment
and/or Beard’s association or contact with [Perot Jain] or any of
the other Company Releasees, including, but not limited to,
claims based upon express or implied contract; covenants of fair
dealing and good faith; option grants; profit participations;
compensation of any nature other than wages; . . . the common
law, negligence, gross negligence or any other tort claim . . .24
[¶ 14] 	Additionally, the Separation Agreement contains this combined
merger, no-other-representations, and reliance disclaimer clause:
9. Entire Agreement. 	This Agreement constitutes the entire
Agreement between the Parties hereto and contains all of the
covenants, 	agreements, 	and 	understandings 	between 	the
parties [(Merger Clause)]. 	The Parties agree that there are no
other agreements, statements, promises or representations by
23 FAP Ex. B at 2.
24 FAP Ex. B at 2. (emphasis added).

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 8
any Party hereto, or any party purporting to represent any Party
hereto [(No-Other-Representations Clause)]. The terms of this
Agreement are contractual, and not a mere recital. The Parties
acknowledge that neither party is relying upon any statements
or representations of the other party, other than those set forth
herein 	[(No-Reliance 	Clause)]. 	This 	Agreement 	may 	be
modified only by an instrument in writing, signed by Beard and
an authorized agent of [Perot Jain].25
[¶ 15] 	Finally, the Separation Agreement ends by stating that:
BEARD ACKNOWLEDGES THAT BEARD HAS READ THIS
AGREEMENT 	AND, 	AFTER 	HAVING 	HAD 	THE
OPPORTUNITY TO CONSULT WITH AN ATTORNEY OF
HIS 	CHOOSING, 	RECOGNIZES 	AND 	UNDERSTANDS
THAT THIS IS A FULL AND FINAL RELEASE OF ANY AND
ALL CLAIMS OF EVERY KIND, ACTUAL AND POTENTIAL,
AGAINST THE COMPANY RELEASEES, WHETHER OR
NOT BEARD CURRENTLY KNOWS OR SUSPECTS THOSE
CLAIMS TO EXIST. 	BEARD IS GIVEN A PERIOD OF 45
DAYS WITHIN WHICH TO CONSIDER THIS AGREEMENT.
THIS 	OFFER 	WILL 	EXPIRE 	IF 	NOT 	SIGNED 	AND
RETURNED TO [PEROT JAIN] BY THE END OF THAT
PERIOD.26
That statement is directly above Beard’s signature.27
[¶ 16] 	Defendants represented that they excluded Access Healthcare
from the Separation Agreement in exchange for a separate, later payment
because they wanted to avoid a difficult valuation of the company at that
25 FAP Ex. B at 4.
26 FAP Ex. B at 4.
27 FAP Ex. B at 4.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 9
time.28 Based on the trust established in his relationship with Perot and Jain,
Beard 	orally agreed 	to 	exclude 	Access Healthcare 	from 	the 	Separation
Agreement (which he refers to as the “handshake agreement”).29
4. The Release Agreement
[¶ 17] 	More than two years later, Beard and Perot Jain executed a
“Release Agreement” whereby Perot Jain bought out Beard’s interests in the
companies listed on the Separation Agreement’s Schedule A for $270,000.30
[¶ 18] 	Beard 	discussed 	the 	Release 	Agreement 	with 	Perot 	Jain’s
lawyer.31 That lawyer confirmed that the buyout did not affect Beard’s Access
Healthcare equity interest. 32 Beard’s own counsel confirmed the same
information.33 Thereafter, defendants made this change to the draft Release
Agreement (which according to Beard was intended to explicitly exclude
Access Healthcare from the release):34
28 FAP ¶ 23.
29 FAP ¶ 24.
30 FAP ¶ 27; FAP Ex. C.
31 FAP ¶ 28.
32 FAP ¶ 28.
33 FAP ¶ 28.
34 FAP ¶s 28-29.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 10
[¶ 19] 	Based on Perot Jain’s counsel’s confirmation that the $270,000
buyout did not include or address Beard’s Access Healthcare equity and based
on the above limitation in the Release Agreement, Beard proceeded with the
buyout of his other equity interests35 and signed the Release Agreement.36
[¶ 20] 	The Release Agreement included merger and reliance disclaimer
clauses like the ones in the Separation Agreement.37
5. The Access Healthcare Sale
[¶ 21] 	In January 2025, Access Healthcare sold in a multi-billion dollar
deal.38 Upon learning of that deal, Beard asked Perot and Jain for his equity
payment from that sale.39 Defendants refused, denied that the handshake
agreement ever happened, and said Beard disclaimed any interest in Access
35 FAP ¶ 30.
36 FAP Ex. C at 3.
37 FAP Ex. C at 2.
38 FAP ¶ 32.
39 FAP ¶ 32.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 11
Healthcare when he executed the Separation and Release Agreements.40
B. Procedural Background
[¶ 22] 	Beard sued defendants, alleging fraud, promissory estoppel,
quantum meruit, and contract breaches of the oral handshake agreement and
employment contract.41 Defendants removed the case to this court.42 They
also answered and counterclaimed, asserting that Beard’s suit breached the
Separation Agreement and the Release Agreement.43 Beard answered and
asserted affirmative defenses. 44 Beard also moved to remand the case to
district court, which the court denied.45
[¶ 23] 	Defendants moved to dismiss Beard’s Original Petition.46 But
he amended his petition.47 So, defendants filed a new dismissal motion,48
which Beard opposed.49 Defendants’ motion relied on the FAP’s allegations
and terms of the Separation Agreement and Release Agreement, which (along
40 See FAP ¶s 32-34.
41 See generally Plaintiff’s Original Petition (Plaintiff’s OP).
42 Notice of Removal.
43 See 	generally 	Defendants’ 	Answer 	to 	Plaintiff’s 	Original 	Petition 	and 	Original
Counterclaim (DAOC).
44 See Plaintiff’s Answer to Defendants’ Original Counterclaim.
45 See Plaintiff’s Motion to Remand; June 2, 2026, Order Denying Motion to Remand.
46 See generally Defendants’ Rule 91a Motion to Dismiss Plaintiff’s OP.
47 See generally FAP.
48 See generally Defendants’ Rule 91a Motion to Dismiss Plaintiff’s FAP (MTD).
49 See generally Plaintiff’s Response in Opposition to the Motion (Resp.).

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 12
with his Employment Agreement) Beard attached to his pleadings.50 See TEX.
R. CIV. P. 59.
[¶ 24] 	The court heard oral argument on the motion and dismissed the
FAP with prejudice.51 Beard later requested this opinion.
III. 	APPLICABLE LAW
A. Motion to Dismiss Standards
[¶ 25] 	Rule of Civil Procedure 91a allows dismissal of a cause of action
that has no basis in law or fact. 	TEX. R. CIV. P. 91a; Reynolds v. Quantlab
Trading Partners US, LP, 608 S.W.3d 549, 555 (Tex. App.—14th Dist. 2020,
no pet.). “A cause of action has no basis in law if the allegations, taken as true,
together with the inferences reasonably drawn from them, do not entitle the
claimant to the relief sought.” TEX. R. CIV. P. 91a.1. A cause of action has no
basis in fact if no reasonable person could believe the pled facts. Id.
[¶ 26] 	Although Texas follows a liberal notice-pleading standard, that
standard still requires factual substance. 	See TEX . R. CIV. P. 45(b) (requiring
pleading to at least give “fair notice to the opponent”). 	A pleading cannot
survive dismissal by just “giv[ing] notice of the claim and the relief sought[;]”
50 See generally MTD.
51 August 10, 2026, Order on Motion to Dismiss.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 13
it must also present “the [underlying] essential factual allegations.” See In re
First 	Rsrv. 	Mgmt., 	L.P., 	671 	S.W.3d 	653, 	661-62. 	(Tex. 	2023) 	(orig.
proceeding) (citations omitted). 	It must provide fair notice of the essential
factual allegations supporting that claim—allegations that, if proven, could
support a judgment. Id. at 662.
[¶ 27] 	Procedurally, a Rule 91a motion must identify each challenged
cause of action and explain why it has no basis in law, fact, or both. Reaves v.
City of Corpus Christi, 518 S.W.3d 594, 606 (Tex. 2017).
[¶ 28] 	A court may not consider evidence in ruling on a 91a motion; it
must decide the motion based “solely on the pleading of the cause of action,
together with any pleading exhibits permitted by Rule 59.” 	TEX. R. CIV. P.
91a.6; see also TEX . R. CIV. P. 59 (permitting “[n]otes, accounts, bonds,
mortgages, records, and all other written instruments, constituting, in whole
or in part, the claim sued on” to be attached to and made part of the pleadings).
B. Contract Construction
[¶ 29] 	A court’s primary objective when construing contracts “is to
ascertain and give effect to the parties’ intent as expressed in the instrument.”
U.S. Polyco, Inc. v. Tex. Cent. Bus. Lines Corp., 681 S.W.3d 383, 387 (Tex.
2023) (quoting URI, Inc. v. Kleberg Cnty., 543 S.W.3d 755, 763 (Tex. 2018));

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 14
see also Equinor Energy LP v. Lindale Pipeline, LLC, 731 S.W.3d 324, 327
(Tex. 2026).
[¶ 30] 	Usually, courts deem the contract alone to express the parties’
intent because it is objective, not subjective, intent that controls. 681 S.W.3d
at 387. 	To that end, courts will examine and consider the entire writing,
seeking as best they can to harmonize and give effect to all its provisions so
that none will be rendered meaningless. 	Universal C.I.T. Credit Corp. v.
Daniel, 243 S.W.2d 154, 157-58 (Tex. 1951).
[¶ 31] 	With unambiguous contracts, courts “can determine the parties’
rights and obligations under the agreement as a matter of law.” Inwood Nat’l
Bank v. Fagin, 706 S.W.3d 342, 347 (Tex. 2025) (per curiam) (quoting ACS
Invs., Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997)); see also Equinor
Energy, 731 S.W.3d at 327.
[¶ 32] 	A written contract is unambiguous if it is so worded that it can
be given a definite or certain meaning when considered in context of the
circumstances surrounding its execution and as applied to the matter in
dispute. 	URI, 543 S.W.3d at 765. 	Context is a permissible indicator of
meaning, and courts are to harmonize and give effect to all contract terms by
analyzing them regarding the whole contract. 	Polyco, 681 S.W.3d at 390.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 15
Context “is not [] confined to the two-dimensional contractual environs” of
the document itself but also includes the business context and realities the
words are meant to address. Board of Regents of the Univ. of Tex. Sys. v. IDEXX
Labs., Inc., 691 S.W.3d 438, 443-45 (Tex. 2024) (per curiam) (quoting URI,
543 S.W.3d at 764).
C. Parol Evidence Rule and Merger Clauses
[¶ 33] 	Courts will not enforce prior or contemporaneous agreements
that add to, vary, or contradict a final, fully integrated written contract. West
v. Quintanilla, 573 S.W.3d 237, 243 (Tex. 2019); Hubacek v. Ennis State
Bank, 317 S.W.2d 30, 31-32 (Tex. 1958). This parol evidence rule is a doctrine
of substantive law, not evidence; therefore, courts will not enforce an
inconsistent prior agreement regardless of the proof offered. 	Hubacek, 317
S.W.2d at 31. When a contract includes a merger clause, courts view it as the
parties’ explicit declaration that the writing is completely integrated. Italian
Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 334 (Tex.
2011).
[¶ 34] 	Courts recognize two parol evidence rule exceptions, but neither
one protects a party whose prior agreement conflicts with the written contract.
First, courts may enforce a collateral agreement only if it is consistent with

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 16
the writing and addresses a topic the parties naturally would have treated
separately. Hubacek, 317 S.W.2d at 32; West, 573 S.W.3d at 245. But courts
do not consider an oral term collateral if it contradicts a written term. David
J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450-51 (Tex. 2008) (per curiam).
[¶ 35] 	Second, although courts allow fraudulent inducement claims to
avoid the parol evidence rule, Dallas Farm Mach. Co. v. Reaves, 307 S.W.2d
233, 239 (Tex. 1957), courts deny this exception when reliance on the oral
promise was unjustified as a matter of law. DRC Parts & Accessories, L.L.C. v.
VM Motori, S.P.A., 112 S.W.3d 854, 858-59 (Tex. App.—14th Dist. 2003, pet.
denied) (en banc).
[¶ 36] 	Further, courts apply the same principle to successive written
contracts, holding that a later-integrated writing between the same parties
supersedes an earlier agreement on the same subject to the extent they
conflict. Italian Cowboy, 341 S.W.3d at 334.
IV. 	D ISCUSSION
A. Introduction
[¶ 37] 	Defendants requested dismissal because: (i) Beard’s releases
negate his claims; 52 (ii) the Employment Agreement negates his contract,
52 MTD at 17-20.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 17
promissory estoppel, and quantum meruit claims; 53 (iii) 	the Separation
Agreement’s merger clause bars Beard’s promissory estoppel and handshake
agreement claims;54 (iv) reliance disclaimers in the Separation and Release
Agreements defeat Beard’s fraud and promissory estoppel claims;55 (v) Perot
and Jain are not personally liable;56 and (vi) other grounds defeat his claims.57
[¶ 38] 	Beard responded primarily that: (i) the releases do not include
his Access Healthcare claim because they do not mention it;58 (ii) merger does
not bar his claims;59 (iii) fraud negates his reliance disclaimers;60 (iv) Perot
and Jain are personally liable for quantum meruit because they personally
benefited from Beard’s Access Healthcare efforts; 61 and (v) 	defendants’
remaining arguments do not defeat Beard’s claims.62
[¶ 39] 	Defendants replied mainly that: (i) the releases’ broad terms
cover Beard’s Access Healthcare claim;63 (ii) the reliance disclaimers negate
53 MTD at 21-23.
54 MTD at 23-26.
55 MTD at 26-31.
56 MTD at 31-34.
57 MTD at 34-45.
58 Resp. at 17-21.
59 Resp. at 23-25.
60 Resp. at 25-35.
61 Resp. at 36-37.
62 Resp. at 38-49.
63 Perot Jain Defendants’ Reply Supporting Dismissal (Reply) at 8-9.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 18
justifiable reliance necessary to support Beard’s fraud claims; 64 (iii) the
merger clauses bar promissory estoppel and handshake agreement claims;65
and (iv) Beard’s remaining arguments lack merit.66
[¶ 40] 	The court granted defendants’ motion because (i) the Separation
Agreement’s broad releases and (ii) the additional compensation, reliance
disclaimers, and merger clauses in both contracts; negate most of Beard’s
claims. His remaining claims have no basis in law.
B. Beard’s Releases
1. Introduction
[¶ 41] 	The Separation Agreement broadly released Beard’s existing and
potential Access Healthcare claims. Only his claims that he was fraudulently
induced into signing the Separation Agreement itself and the later Release
Agreement would escape the effect of that release, if effective.67
2. Contract Construction Rules
[¶ 42] 	Releases are construed like other contracts. Stroop v. Northern
64 Reply at 10-14.
65 Reply at 17.
66 Reply at 14-25.
67 A release of all claims is not necessarily effective to preclude a claim that a plaintiff was
fraudulently induced into the release itself. See Schlumberger, 959 S.W.2d at 178-81. A
release must “clearly express[] the parties’ intent to waive fraudulent inducement claims”
or the contract must “disclaim[] reliance on representations about specific matters in

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 19
Cnty. Mut. Ins. Co., 133 S.W.3d 844, 851 (Tex. App.—5th Dist. 2004, pet.
denied); Loy v. Kuykendall, 347 S.W.2d 726, 728 (Tex. App.—4th Dist. 1961,
writ ref’d n.r.e.). 	So, the court applies the releases as written if their terms
unambiguously demonstrate the parties’ intent. 	See, e.g., Fagin, 706 S.W.3d
at 347.
3. The Releases
[¶ 43] 	The Separation Agreement has two release clauses:
[¶ 44] 	The first clause defines the released parties as the “Company
Releasees,” which includes Perot Jain, Perot, Jain, and “Access Healthcare
Services USA, LLC and its affiliates” among others.68 That clause states that
Beard unconditionally releases “ʻthe Company Releasees’ from any and all
claims and causes of action of whatever kind and character, arising out of or
in any way related to Beard’s employment by [Perot Jain] or separation from
said employment[.]”69
[¶ 45] 	The parties further agreed that this release applies to “express
dispute” to preclude a claim of fraudulent inducement. 	Id. at 181 (emphasis added).
Because the Separation Agreement contains a separate no-reliance clause, the court does
not address whether its release provisions independently preclude Beard’s fraudulent
inducement claim for the Separation Agreement itself. See part IV(C)(6), below.
68 FAP Ex. B at 2.
69 FAP Ex. B at 2.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 20
or implied contract” promises, including claims for “profit participations” and
“compensation of any nature other than wages.”70 Beard also agreed that:
It is the express intent of Beard to enter into this full and final
settlement and compromise of any and all claims against the
Company 	Releasees 	whatsoever, 	and 	Beard 	promises 	and
covenants that Beard will not file or initiate any such claim in
any local, state, or federal court, . . . seeking relief against the
Company Releasees, or any of them, for any such cause of
action.71
[¶ 46] 	The second release clause provides that Beard recognizes and
understands that, by signing the Separation Agreement, he agrees to a “FULL
AND FINAL RELEASE OF ANY AND ALL CLAIMS OF EVERY KIND,
ACTUAL AND POTENTIAL, AGAINST THE COMPANY RELEASEES,
WHETHER 	OR 	NOT 	BEARD 	CURRENTLY 	KNOWS 	OR 	SUSPECTS
THOSE CLAIMS TO EXIST.”72
4. Beard’s Arguments
[¶ 47] 	Beard’s 	response 	argued 	that 	the 	Separation 	Agreement’s
release does not apply because (i) it does not encompass his Access Healthcare
equity claim; (ii) fraudulent inducement voids the Separation Agreement and
70 FAP Ex. B at 2.
71 FAP Ex. B at 2.
72 FAP Ex. B at 4 (emphasis original). Although the Separation Agreement has two release
paragraphs, this opinion reads them as one combined release for analytical purposes.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 21
its release; and (iii) the release is not supported by consideration.73
a. Scope of the Separation Agreement’s Release
[¶ 48] 	Regarding the release’s scope, Beard relies on Victoria Bank and
Trust Co. v. Brady, 811 S.W.2d 931, 938 (Tex. 1991) for the premise that to be
effective a release must “mention” the subject claim or said claim must be
“clearly within the subject matter of the release.”74 From there, he argues that
the Separation Agreement’s release does not apply to his Access Healthcare
claim because the Separation Agreement excluded Access Healthcare from the
list of companies for which Perot Jain would pay a promote.75
[¶ 49] 	A general categorical release is “narrowly construed.” 	Id.
However, a release is effective regarding claims that clearly fall within a class
of claims mentioned in the release. See id. at 937-39. And a release “does not
require that the parties anticipate and identify each potential cause of action
relating to the release’s subject matter,” and “a valid release may encompass
unknown claims and damages that develop in the future.” Keck, Mahin & Cate
73 Resp. at 17-21.
74 Resp. at 17-18.
75 Resp. at 18-19. The defendants pled release as an affirmative defense. DAOC at 2.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 22
v. Nat’l Union Fire Ins. Co. of Philadelphia, 20 S.W.3d 692, 698 (Tex. 2000).
[¶ 50] 	So, Beard’s reliance on Brady is misplaced because the cause of
action there was not named in the release nor was it within a category of claims
the release mentioned. See id. at 937-39.
[¶ 51] 	But here, the Separation Agreement’s release covers all claims
in any way related to Beard’s employment with and separation from Perot
Jain.76 More specifically, the releases cover claims for “profit participations”
and “compensation of any nature other than wages,” whether the released
claims are “actual or potential” claims.77
[¶ 52] 	Because 	(i) 	Beard alleges that leading up to executing the
Separation Agreement the parties were in discussions about a proposed three
percent equity interest in Access Healthcare78 and (ii) Access Healthcare was
specifically included as a “Company Releasee[]” in the agreement, 79 Beard’s
potential claim for a three percent interest in or other compensation related to
Access Healthcare was not “unknown” when the agreement was executed.
76 FAP Ex. B at 2.
77 FAP Ex. B at 2, 4 (emphasis removed).
78 FAP ¶ 23.
79 FAP Ex. B at 2.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 23
Keck, 20 S.W.3d at 698.
[¶ 53] 	So, because Access Healthcare is not included on the Schedule
A list of companies for which Beard would receive a “profit participation[],”
the Separation Agreement released all of Beard’s existing or potential Access
Healthcare-based claims—except for a possible claim that he was fraudulently
induced into signing the Separation Agreement itself.80
[¶ 54] 	Furthermore, the court must read the Separation Agreement’s
releases in context with the agreement’s other terms as a whole. 	Myers-
Woodward, LLC v. Underground Servs. Markham, LLC, 716 S.W.3d 461, 472-
73 (Tex. 2025) (construe contracts’ provisions as a whole). 	Those terms
establish the parties’ objective intent that the release’s scope includes all
possible Access Healthcare claims.
[¶ 55] 	First, in Separation Agreement ¶ 2, Beard acknowledges
that he has been paid in full for all amounts due and payable to
him by [Perot Jain] arising from or related in any way to his
employment by [Perot Jain], including, without limitation,
(a) all 	wages 	and 	unused 	vacation, 	(b) all 	bonus 	and/or
commission payments, (c) all amounts due under any other
agreements of any nature relating to [Perot Jain] or any of its
affiliates or to any property previously or currently owned by
80 See FAP Ex. B at 1-4.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 24
[Perot Jain] or its affiliates.81
[¶ 56] 	In context with (i) the express exclusion of Access Healthcare
from the list of companies for which Beard would receive a promote and (ii)
the agreement’s merger and no-other-representation clauses, ¶ 2 is further
evidence that the parties’ objectively intended for the releases to cover any
existing or potential claim to an Access Healthcare-related promote or other
such compensation.82 Myers-Woodward, 716 S.W.3d at 472-73.
[¶ 57] 	In sum, Beard released all of his claims except for a possible
claim that he was fraudulently induced into signing the Separation Agreement
itself or the later Release Agreement.
b. Fraudulent Inducement
[¶ 58] 	As a general matter, the court agrees with Beard 83 that a
contractual release of all claims does not necessarily preclude a claim that the
contract 	containing 	the 	release 	itself 	was 	fraudulently 	induced. 	See
81 FAP Ex. B at 2.
82 The court does not discuss the later Release Agreement’s release because it only covered
claims “relating to the subject matter of this agreement,” which meant “claims to the
portfolio companies set forth in Section A to the Separation Agreement,” which in turn did
not include Access Healthcare. FAP Ex. C at 1, 3. So, the Release Agreement does not
release (i) any claims related to Access Healthcare or (ii) claims that he was fraudulently
induced into signing the Release Agreement itself. See Schlumberger, 959 S.W.2d at 178.
83 Resp. at 20-21.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 25
Schlumberger, 959 S.W.2d at 178 (“[A] release is a contract, and like any other
contract, is subject to avoidance on grounds such as fraud or mistake .”); see
also Italian Cowboy, 	341 	S.W.3d 	at 	331-34 	(even 	merger 	or 	no-other-
representations clauses do not preclude claims for fraudulent inducement).
[¶ 59] 	This opinion addresses Beard’s fraudulent inducement and fraud
defense to the releases and his corresponding fraud causes of action at part
IV(C) below. But in short, the contracts’ (i) reliance disclaimers, (ii) related
red flags, and (iii) direct contradictions negate the justifiable reliance element
of Beard’s fraud claims.84
c. Consideration
[¶ 60] 	Beard cited Buddy L, Inc. v. General Trailer Co., Inc., 672 S.W.2d
541, 547 (Tex. App.—5th Dist. 1984, writ ref’d n.r.e.) for the premise that
releases require consideration but he never received his Access Healthcare
payment that was consideration for his releases.85 The court rejected that
argument because the Separation Agreement was a written contract that
recites its own consideration, which supports the release. Id. For example, in
84 FAP’s Claim One is labeled “Common Law Fraud and Fraudulent Inducement (All
Defendants).” However, in substance he pled only a fraudulent inducement claim.
85 Resp. at 19-20.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 26
exchange for the release Beard would receive the “Additional Consideration”
defined in ¶ 1 of the agreement.86 See id. (conferring a benefit is sufficient
consideration).
5. Conclusion
[¶ 61] 	Because all of Beard’s claims87 except for his Quantum Meruit
claim depend on a purported promise made before he signed the Separation
Agreement that he would be paid on a three percent equity interest in Access
Healthcare, claims regarding this “profit participation[]” were specifically
released when Beard signed the Separation Agreement. 88 As to Quantum
Meruit, Beard released all claims for any non-wage compensation related to
Access Healthcare as well.89
[¶ 62] 	As discussed above, the releases do not affect Beard’s claims
that he was fraudulently induced into the Separation and Release Agreements
86 FAP Ex. B at 1.
87 See FAP ¶s 46 (Two – Promissory Estoppel) (Beard refrained from enforcing his right to
receive a three percent equity interest in Access Healthcare based on promise it would be
disbursed upon a liquidity event of the company); 57 (Four – Breach of Employment
Agreement) (Employment Agreement conferred to Beard a three percent equity interest in
all portfolio companies on which he worked); 62 (Five – Breach of Handshake Agreement)
(Beard would receive a three percent equity interest in Access Healthcare); 67 (Six –
Recission of Employment Agreement) (same).
88 FAP Ex. B at 2.
89 FAP Ex. B at 2; see FAP ¶s 50, 53 (seeking compensation for providing defendants with
“valuable services in the form of his work on Access Healthcare for over four years”).

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 27
themselves.
[¶ 63] 	Accordingly, 	the 	court 	concluded 	that 	the 	Separation
Agreement’s releases were an independent ground to dismiss FAP Claims
Two, Three, Four, Five, and Six in addition to any other grounds discussed
below.
C. Claim 	One: 	Common 	Law 	Fraud 	and 	Fraudulent 	Inducement 	(All
Defendants)
1. Fraud Elements and Justifiable Reliance
[¶ 64] 	Fraudulent inducement is a sub-species of common law fraud in
contractual contexts and requires the same elements. 	Haase v. Glazner, 62
S.W.3d 795, 798-799 (Tex. 2001).
[¶ 65] 	Common law fraud requires: (i) a material misrepresentation
(ii) that was either known to be false when made or was asserted without
knowledge of its truth, (iii) was intended to be acted upon, (iv) was relied upon,
and (v) caused injury. 	Formosa Plastics Corp. USA v. Presidio Eng’rs &
Contractors, Inc., 960 S.W.2d 41, 47-48 (Tex. 1998). However, the reliance
must be justified. Maya Walnut LLC v. Ly, 738 S.W.3d 764, 767 (Tex. 2026);
Roxo Energy Co. v. Baxsto, 713 S.W.3d 404, 408 (Tex. 2025).
[¶ 66] 	“ʻJustifiable reliance usually presents a question of fact’ for the

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 28
jury to decide.” Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc., 590 S.W.3d
471, 497 (Tex. 2019) (quoting JPMorgan Chase Bank, N.A. v. Orca Assets G.P.,
546 S.W.3d 648, 654 (Tex. 2018)). 	But justifiable reliance can be “negated
as a matter of law when circumstances exist under which reliance cannot be
justified,” id., because those circumstances show “it is extremely unlikely that
there is actual reliance on the plaintiff’s part.” Grant Thornton LLP v. Prospect
High Income Fund, 314 S.W.3d 913, 923 (Tex. 2010) (quoting Haralson v. E.F.
Hutton Grp., 919 F.2d 1014, 1026 (5th Cir. 1990) (overruled on other grounds
as recognized in Lewis v. Fresne, 252 F.3d 352, 358 n.5 (5th Cir. 2001)).
[¶ 67] 	There are three analytical lines regarding when reliance on
extracontractual promises may be considered unjustifiable as a matter of law:
(i) the red flags d octrine, (ii) the direct contradiction rule, and (iii) reliance
disclaimers. 	As discussed in parts two through six below, those lines may
operate independently or together depending on the facts. Here, all three lines
apply.
2. The Red Flags Doctrine
[¶ 68] 	Courts use the red flags doctrine to 	identify circumstances
where reliance is unjustified. Maya Walnut, 738 S.W.3d at 768. That doctrine
stems from the Restatement of Torts (Second) statement that a plaintiff

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 29
“cannot recover if he blindly relies upon a misrepresentation the falsity of
which would be patent to him if he had utilized his opportunity to make a
cursory examination or investigation.” 	Id. (quoting RESTATEMENT (SECOND)
OF TORTS § 541 cmt. a (A.L.I. 1976)) (emphasis added).
[¶ 69] 	The red flags doctrine includes these standards:
We have declined to say how many red flags are sufficient to
negate justifiable reliance. See Orca Assets, 546 S.W.3d at 655
(* * *). 	Instead, courts must ask whether, “given a fraud
plaintiff’s individual characteristics, abilities, and appreciation
of facts and circumstances at or before the time of the alleged
fraud[,] it is extremely unlikely that there is actual reliance on
the plaintiff’s part.” 	Grant Thornton, 314 S.W.3d at 923
(alteration in original) (quoting Haralson, 919 F.2d at 1026). If
sufficient red flags exist to alert the recipient to the potential
unreliability of the misrepresentation, then the recipient must
“protect its own interests through the exercise of reasonable
diligence.” 	Orca Assets, 546 S.W.3d at 657. A party that fails
to exercise reasonable diligence is “charged with knowledge of
all facts that would have been discovered by a reasonably
prudent person similarly situated.” Id. at 654 (quoting AKB
Hendrick, LP v. Musgrave Enters., 380 S.W.3d 221, 232 (Tex.
App.—Dallas 2012, no pet.)).
Id. at 769.
[¶ 70] 	That is, courts take a holistic approach in determining whether
sufficient red flags exist. Id. Context is determinative, and one red flag alone
may negate reliance as a matter of law. Id. at 770. So, instead of counting red
flags, courts “view the circumstances in their entirety while accounting for the

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 30
parties’ relative levels of sophistication.” Id. at 769 (citations omitted).
[¶ 71] 	Further, a sophisticated party “should be expected to recognize
red flags that the less experienced may overlook,” id. (quoting Orca Assets, 546
S.W.3d at 656), and a party engaged in arm’s-length negotiations “must
exercise ordinary care for the protection of his interests.” Id. (quoting Barrow-
Shaver, 590 S.W.3d at 593).
[¶ 72] 	Thus, where a reasonable investigation would unquestionably
have revealed the alleged fraud—often because language in the contract (or in
public records) directly contradicts an oral misrepresentation—reliance would
be unjustified as a matter of law. 	Id. at 771. This is referred to as the direct
contradiction rule. See Orca Assets, 546 S.W.3d at 654. In fact, this conflict
itself is “a large red flag.” 	Mercedes-Benz USA, LLC v. Carduco, Inc., 583
S.W.3d 553, 559 (Tex. 2019) (citing Orca Assets, 546 S.W.3d at 658).
3. The Direct Contradiction Rule
[¶ 73] 	The 	direct 	contradiction 	rule 	means 	that 	reliance 	on 	oral
promises that directly conflict with express, unambiguous contract terms is
unjustified as a matter of law. Roxo Energy, 713 S.W.3d at 408-09 (citing Orca

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 31
Assets, 546 S.W.3d at 653).
a. Roxo Energy
[¶ 74] 	In Roxo Energy, Baxsto owned mineral interests and negotiated
with Roxo Energy regarding a potential lease. 	Roxo’s investor, Vortus, also
participated in the negotiations. 	Baxsto wanted to ensure that Roxo and
Vortus would develop the leasehold instead of flipping it and that Baxsto would
get as good a bonus as other owners in the area. Baxsto and Roxo signed three
documents, including a lease summary containing the parties’ business terms.
In short, Roxo never drilled a well on the acreage, did not pay Baxsto the best
bonus amount, and flipped the acreage.
[¶ 75] 	Baxsto sued Roxo and Vortus for common law fraud, fraud in the
inducement, statutory fraud, and fraud by non-disclosure. 	The trial court
granted defendants summary judgment on all claims. 	The court of appeals
reversed, holding that the parties’ written agreements did not so directly
contradict Roxo’s alleged oral representations as to make Baxsto’s reliance on
them unjustifiable. 668 S.W.3d 912, 938-39 (Tex. App.—11th Dist. 2023). It
further held that there were insufficient red flags to put Baxsto on notice that
it could not rely on Roxo’s oral representations. Id. at 940. The supreme court
reversed, explaining in two parts 	the red flags doctrine and the direct

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 32
contradiction principle. See 713 S.W.3d at 408-11.
[¶ 76] 	Part “A” addressed allegations that Roxo misrepresented its
intent to develop Baxsto’s acreage rather than to “flip” the lease. 	In sum,
Baxsto sought to bind Roxo to its oral promise to drill on and develop the lease.
But the signed lease contained no duty to drill or develop the land. Instead,
the lease had a typical assignment clause that allowed the lessee’s interest to
be assigned, devised, or otherwise transferred in whole or in part.
[¶ 77] 	Relying on its reasoning in Barrow-Shaver, the supreme court
held that the lease terms directly contradicted the existence of an oral
agreement that Baxsto allegedly relied on, thereby making Baxsto’s reliance
on those representations unreasonable as a matter of law:
This unqualified transfer right, clearly expressed in writing and
agreed to by Baxsto, directly contradicts the notion that Roxo
bound itself orally not to transfer the lease and instead to drill.
We 	confronted 	a 	similar 	circumstance 	in 	Barrow-Shaver.
There, the plaintiff complained that the lessor refused 	to
consent to an assignment after orally promising 	never to
withhold its consent. * * * 	The parties’ written agreement,
however, gave the lessor the right to give or withhold consent.
* * * 	We held that the unqualified consent-right stated in the
contract made it unjustifiable for the plaintiff to rely on a prior
oral promise that consent would be given. * * * The same
reasoning holds true here. 	Just as an unqualified contractual
right to withhold consent contradicts a prior oral promise to
give consent, an unqualified contractual right to transfer a lease
contradicts a prior oral promise not to do so.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 33
Baxsto complains that Roxo falsely represented itself as “in the
business” of developing land rather than flipping leases. 	The
court 	of 	appeals 	considered 	this 	representation 	actionable
despite the written agreement. * * * 	We disagree. 	Whatever
Roxo said about being “in the business” of developing land,
Baxsto freely agreed to a written agreement that allows Roxo,
at its election, to no longer be “in the business” of developing
Baxsto’s land.
Id. at 409-10 (citations omitted).
[¶ 78] 	The supreme court also held that Baxsto could have written
terms in the lease protecting itself from Roxo’s conduct. Id. at 410.
[¶ 79] 	Part “B” of the opinion concerns Baxsto’s claims regarding
“most favored nation” bonus payments. 	A single six-month most favored
nations clause was the only such written promise in the parties’ contracts, and
there was no evidence Roxo breached that agreement. 	Relying on Barrow-
Shaver and Orca Assets, the supreme court held that the absence of other most
favored nation language in the contracts was a red flag negating justifiable
reliance on any such additional promises:
As in Barrow-Shaver, the absence from the written agreements
of 	language 	confirming 	the 	alleged 	representations 	or
cementing the parties’ alleged oral agreement is itself a red flag
negating justifiable reliance. 	* * * 	When a party like Roxo
proffers written contract language that makes no mention of
matters the parties have previously discussed, this alone should
make it obvious to a reasonably sophisticated party like Baxsto
that the previous discussions may no longer be part of the deal.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 34
The prudent response is to demand that the parties’ discussions
be reflected in the writing—not to sign an agreement that makes
no 	mention 	of 	the 	promises 	and 	then 	try 	to 	hold 	your
counterparty to them anyway.
When assessing red flags, we view “the circumstances in their
entirety while accounting for the parties’ relative levels of
sophistication.” Orca Assets, 546 S.W.3d at 656. Assuming the
truth 	of 	Baxsto’s 	allegation 	that 	Roxo 	was 	the 	more
sophisticated 	party, 	the 	unrebutted 	summary-judgment
evidence nevertheless shows that Baxsto’s representative, Cole
Stout, was an experienced oil and gas businessman who should
have appreciated the significance of the disparities between the
signed agreement and the alleged oral promises now claimed. In
the two years before the parties began negotiations, Stout
negotiated at least fifty oil and gas leases. 	This deal alone
involved 548 mineral acres, 6,200 physical acres, and $8
million. The parties executed numerous written agreements,
including the lease, the extensions, and the sale contract. As in
Barrow-Shaver, 	“[a] 	similarly 	situated 	ʻsavvy 	participant’
would have recognized that [Defendant] could change its mind,
if [the] representations were binding at all, and would have
weighed the risk of that happening before entering into the
agreement.” 590 S.W.3d at 501.
Whether or not Stout was as sophisticated a negotiator as Roxo,
he was in a position to intelligently assess the merits of the $8
million deal he was making, and he was in a position to
understand the differences between the deal he was signing and
any prior discussions not contained in the documents he signed.
He was also in a position to seek and obtain information other
than Roxo’s self-serving statements when assessing the value
of Baxsto’s mineral interests. 	Baxsto’s reliance on Roxo’s
alleged 	misrepresentations 	about 	bonus 	payments 	was
unjustifiable as a matter of law, and the trial court correctly
granted summary judgment in this regard.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 35
Id. at 410-411.
[¶ 80] 	Part A could have been decided under the red flags doctrine; and
Part B could have been decided under the direct contradiction rule. 	In both
instances, the plaintiff’s alleged reliance on oral promises inconsistent with
the parties’ written contracts was unjustifiable as a matter of law.
b. Westergren
[¶ 81] 	National Prop. Holdings, L.P. v. Westergren, 453 S.W.3d 419
(Tex. 2015) (per curiam) is another direct contradiction case. 	The supreme
court held that a party claiming fraud in the inducement could not have
justifiably relied on oral representations regarding a release that were indirect
conflict with the release itself. Id. at 424-26.
[¶ 82] 	In that case, Westergren accepted a $500,000 payment and
signed a release that negated National Property Holdings’ (NPH) oral promise
to pay him a total of $1 million and a share of profits from a future real estate
development. 	At trial, Westergren claimed he was fraudulently induced to
sign the release:
(i) by an oral representation that the $500,000 was the first half of the

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 36
$1 million payment;
(ii) NPH told him the release was only a receipt;
(iii) NPH said he would receive the other half of the $1 million later;
(iv) he did not read the release because he was in a hurry and did not have
his reading glasses with him;
(v) he could have used but chose not to use a magnifying glass on his
watch to read the release;
(vi) he did not ask NPH or the notary to read the document to him; and
(vii) he instead relied on NPH’s representations regarding the release
and signed it without reading it.
[¶ 83] 	The supreme court held that as a matter of law Westergren could
not justifiably rely on NPH’s statements about the contents of the release that
directly conflicted with the release’s content itself. 	Id. 424. 	Rather, on its
face, the release’s intent and effect was obvious and unambiguous. Id.
[¶ 84] 	The 	court 	reasoned 	that 	its 	conclusion 	was 	grounded 	in
established Texas law:
It is well-established that “[t]he recipient of a fraudulent
misrepresentation is not justified in relying upon its truth if he
knows 	that 	it 	is 	false 	or 	its 	falsity 	is 	obvious 	to 	him.”
RESTATEMENT (SECOND) OF TORTS § 541 (1977). 	Thus,
as Texas courts have repeatedly held, a party to a written
contract cannot justifiably 	rely on oral 	misrepresentations
regarding the contract’s unambiguous terms. See, e.g., Thigpen
v. Locke, 363 S.W.2d 247, 251 (Tex. 1962) (“In an arm’s-length

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 37
transaction the defrauded party must exercise ordinary care for
the protection of his own interests.... [A] failure to exercise
reasonable diligence is not excused by mere confidence in the
honesty and integrity of the other party.”) (citation omitted).
This is particularly true when the party had a reasonable
opportunity to review the written agreement but failed to
exercise ordinary care to do so. 	See Tex. & Pac. Ry. Co. v. Poe,
131 Tex. 337, 115 S.W.2d 591, 592 (1938) (holding that
evidence was legally insufficient to support a finding of fraud
where party who relied on oral statement that release was
receipt had an opportunity to read the document which plainly
identified itself as a release); see also Thigpen, 363 S.W.2d at
251.
Id. at 424-25.
4. Combined Red Flags and Direct Contradiction Analysis
a. Orca Assets
[¶ 85] 	Orca Assets is an oil and gas case in which the supreme court was
asked to determine whether red flags and the direct contradiction rule 	as a
matter of law negated justifiable reliance in fraud claims. In short, the court
held that as a matter of law red flags and a negation-of-warranty clause in sales
documents defeated plaintiff’s fraud and negligent misrepresentation claims
based on extra-contractual representations. Orca Assets, 546 S.W.3d at 650.
[¶ 86] 	In that case, a mineral interest owner, represented by a JP
Morgan 	Chase 	employee 	(Mettham), 	leased 	more 	than 	1,800 	acres 	to

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 38
GeoSouthern. But GeoSouthern waited six months to record its leases.
[¶ 87] 	In the meantime, Orca Assets was interested in leasing acreage
in the same area. So, Mettham met with Orca representatives, who brought
maps showing the tracts Orca wanted to lease. 	They asked whether the
acreage at issue “was open and not leased.” There was evidence that Mettham
said that the acreage was unleased.
[¶ 88] 	But shortly after that meeting, Mettham required that the lease
include a new negation-of-warranties clause that shifted the risk of title failure
to the lessee:
Negation of Warranty. This lease is made without warranties of
any kind, either express or implied, and without recourse
against Lessor in the event of a failure of title, not even for the
return of the bonus consideration paid for the granting of the
lease or for any rental, royalty, shut-in payment, or any other
payment now or hereafter made by Lessee to Lessor under the
terms of this lease.
Id. 651 (emphasis in original).
[¶ 89] 	Orca’s 	representatives 	recognized 	this 	new 	language 	as
different—a 	“curveball” 	and a “red flag”—because it made the lessee
responsible for ensuring that the lessor had title to the minerals. 	Orca’s
landman characterized the new language as unusually explicit and advised

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 39
Orca to give title another review before closing.
[¶ 90] 	Before closing, the parties signed a letter of intent in which the
lessor made no representations about whether the land was leasable. Instead,
the letter recited that Orca had searched the relevant records and preliminarily
determined lessor was the owner and holder of the mineral estate. The letter
also quoted the new clause and gave Orca a thirty-day option in exchange for
accepting the new language. 	It also permitted Orca to close the lease in
segments and to decline any acreage due to title defects.
[¶ 91] 	Orca had been checking the property records almost daily. But
it did not do so during the thirty-day option period. Three days into the option
period, GeoSouthern recorded the leases it obtained six months earlier.
[¶ 92] 	Orca closed on over half the acres the letter of intent covered. At
closing, Orca asked if the acreage was still open. 	Mettham looked at
something below his desk, checked his computer and the maps, and said,
“We’re good to go. 	They’re open.” 	Orca delivered bonus checks for
$3,217,585.
[¶ 93] 	After GeoSouthern discovered 	Orca’s leases in the 	county
records, it brought the matter to Mettham’s attention. He then refunded the
bonus payments to Orca. Nonetheless, Orca rejected the tender and sued the

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 40
lessor for contract breach, fraud, and negligent misrepresentation.
[¶ 94] 	The trial court issued a Texas Rule of Civil Procedure 166(g)
order disposing of all of Orca’s claims. In so doing, the trial court concluded
that the letter of intent’s and the leases’ unambiguous terms precluded Orca’s
contract claim and ruled as a matter of law that Orca could not establish
justifiable reliance for its fraud and negligent misrepresentation claims.
[¶ 95] 	The appellate court affirmed the contract ruling but reversed as
to fraud and negligent misrepresentation. 	592 S.W.3d 591 (Tex. App.—5th
Dist. 2015). In so doing, the court held that the negation-of-warranty did not
clearly and unequivocally disclaim reliance on prior representations and thus
could not preclude justifiable reliance as a matter of law. Id. at 603-04. It also
rejected the lessor’s red flags and direct conflicts arguments. 	Id. 	at 604-06.
The supreme court granted review.
[¶ 96] 	The supreme court reversed the court of appeals and reinstated
the trial court’s judgment for the lessor. 	546 S.W.3d at 660. 90 After
thoroughly reviewing its own and intermediate appellate court opinions, the
90 Orca did not pursue its breach of contract claim in the supreme court. 546 S.W.3d at
653.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 41
supreme court concluded that:
Viewed 	in 	context 	with 	numerous 	“red 	flags,” 	Orca’s
sophistication 	in 	the 	oil-and-gas 	industry, 	and 	the 	direct
contradiction 	between the representation and the letter of
intent,2 Orca cannot maintain its claim of justifiable reliance.
Orca, 	composed 	of 	experienced 	and 	knowledgeable
businesspeople, negotiated an arm’s-length transaction and
then placed millions of dollars in jeopardy—all while operating
under circumstances that similarly situated parties would have
regarded as imminently risky. 	Orca needed to protect its own
interests through the exercise of ordinary care and reasonable
diligence rather than blindly relying upon another party’s vague
assurances. Its failure to do so precludes its claim of justifiable
reliance as a matter of law.
Id. (emphasis added) (footnote two discussed below).
[¶ 97] 	Footnote two explains how red flags and direct contradiction can
apply separately or jointly in a case:
Either “red flags” alone or direct contradiction alone can negate
justifiable reliance as a matter of law. Compare Westergren, 453
S.W.3d at 424–25 (“[A] party to a written contract cannot
justifiably 	rely 	on 	oral 	misrepresentations 	regarding 	the
contract’s unambiguous terms.” (citing Thigpen, 363 S.W.2d at
251)), and DRC, 112 S.W.3d at 858 (“[R]eliance upon an oral
representation that is directly contradicted by the express,
unambiguous terms of a written agreement between the parties
is not justified as a matter of law.”), with Grant Thornton, 314
S.W.3d at 923 (“[A] person may not justifiably rely on a
misrepresentation if ʻthere are “red flags” indicating such
reliance is unwarranted.’” (quoting Lewis, 343 F.3d at 546)). In
this case, however, both theories apply. 	And either would be
sufficient to preclude justifiable reliance.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 42
Id. at 660 n.2.
b. Mikob
[¶ 98] 	Mikob Props., Inc. v. Joachim, 468 S.W.3d 587, 599 (Tex.
App.—5th Dist. 2015, pet denied) is among the court of appeals cases the
supreme court cited with approval in Orca Assets. 	546 S.W.3d at 659. 	In
Mikob, the court held that an oral representation that a settlement agreement
covered all parties was directly contradicted by the agreement explicitly
listing only some defendants, while remaining silent about another defendant,
and therefore barred the omitted defendant from establishing justifiable
reliance. 468 S.W.3d at 599. Mikob’s red flags analysis includes this passage:
“Generally, reliance on representations made in a business or
commercial transaction is not justified when the representation
takes place in an adversarial context.” 	AKB Hendrick, LP v.
Musgrave Enters., Inc., 380 S.W.3d 221, 232 (Tex. App.—
Dallas 2012, no pet.) (citing Coastal Bank SSB v. Chase Bank of
Tex., N.A., 135 S.W.3d 840, 843 (Tex. App.—Houston [1st
Dist.] 2004, no pet.)).
Id. at 598.
5. Reliance Disclaimers
a. Introduction
[¶ 99] 	An unambiguous waiver-of-reliance provision negotiated by
sophisticated parties represented by counsel in an arm’s-length transaction

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 43
may preclude a fraudulent inducement claim as a matter of law. See Forest Oil
Corp. v. McAllen, 268 S.W.3d 51, 52 (Tex. 2008); see also Schlumberger Tech.
Corp. v. Swanson, 959 S.W.2d 171, 179-81 (Tex. 1997) (reliance disclaimer
precluded fraud claim based on representations not stated in settlement
agreement); but see Italian Cowboy Partners, LTD v. Prudential Ins. Co. of Am.,
341 S.W.3d 323, 331-36 (Tex. 2011) (merger clause alone without a reliance
disclaimer did not negate justifiable reliance as a matter of law). 	Such
provisions 	conclusively 	negate 	the 	element 	of 	reliance 	for 	fraudulent
inducement claims. 268 S.W.3d 51, 52, 56-61.
[¶ 100] 	Although the supreme court has declined to adopt a per se rule
that a disclaimer automatically precludes a fraudulent inducement claim, it
acknowledged the importance of enforcing such provisions because “[i]t is not
asking too much that parties not rely on extra-contractual statements that they
contract not to rely on.” Id. at 60-61.
[¶ 101] 	Forest Oil also holds that
If disclaimers of reliance cannot ensure finality and preclude
post-deal claims for fraudulent inducement, then freedom of
contract, even among the most knowledgeable parties advised
by 	the 	most 	knowledgeable 	legal 	counsel, 	is 	grievously
impaired.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 44
Id. at 61.
b. Forest Oil Factors
[¶ 102] 	Forest 	Oil 	addressed 	whether 	an 	unambiguous 	reliance
disclaimer precluded as a matter of law a fraudulent inducement claim. 268
S.W.3d at 52. 	The court rejected that claim, which was offered to avoid a
mandatory arbitration clause. In so doing, the court discussed Schlumberger
at length and held that:
It is true that Schlumberger noted a disclaimer of reliance “will
not 	always 	bar 	a 	fraudulent 	inducement 	claim,” 	but 	this
statement merely acknowledges that facts may exist where the
disclaimer 	lacks 	“the 	requisite 	clear 	and 	unequivocal
expression of intent necessary to disclaim reliance” on the
specific representations at issue. 	Courts must always examine
the 	contract 	itself 	and 	the 	totality 	of 	the 	surrounding
circumstances 	when 	determining 	if 	a 	waiver-of-reliance
provision is binding. 	We did so in Schlumberger, but since
courts of appeals seem to disagree over which Schlumberger
facts were most relevant, we now clarify those that guided our
reasoning: (1) the terms of the contract were negotiated, rather
than boilerplate, and during negotiations the parties specifically
discussed 	the 	issue 	which 	has 	become 	the 	topic 	of 	the
subsequent dispute; (2) the complaining party was represented
by counsel; (3) the parties dealt with each other in an arm’s
length 	transaction; 	(4) the 	parties 	were 	knowledgeable 	in
business matters; and (5) the release language was clear. These
factors were each present in Schlumberger, and they are each
present in this case.
[¶ 103] 	268 S.W.3d at 60 (emphasis added, footnotes omitted). 	The

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 45
supreme court referred to the above as “factors,” therefore acknowledging that
each one does not need to be present before a reliance disclaimer is effective as
a matter of law to defeat a fraud claim based on prior representations omitted
from a signed contract. See id.; see also Austin Tr. Co. v. Houren, 664 S.W.3d
35, 48 (Tex. 2023) (referring to “Forest Oil factors”).
[¶ 104] 	As 	discussed 	in 	the 	next 	section, 	the 	red 	flags, 	direct
contradiction, and reliance disclaimer rules individually or collectively defeat
Beard’s fraud claims as a matter of law.
6. Application
a. Beard’s Reliance Disclaimers
i. 	General Application
[¶ 105] 	Beard’s Separation Agreement and Release Agreement contain
these reliance disclaimers:
Separation Agreement
9. Entire Agreement. This Agreement constitutes the entire
Agreement between the Parties hereto and contains all of the
covenants, agreements and understandings between the parties.
The Parties agree that there are no other agreements, statements,
promises or representations by any Party hereto, or any party
purporting to represent any Party hereto. 	The terms of this
Agreement are contractual, and not a mere recital. 	The Parties
acknowledge that neither party is relying upon any statements or
representations of the other party, other than set forth herein. This

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 46
Agreement may be modified only by an instrument in writing,
signed by Beard and an authorized agent of [Perot Jain].91
Release Agreement
5. Entire Agreement. 	This Agreement constitutes the entire
agreement between the Parties hereto as to the subject matter of
this Agreement and contains all of the covenants, agreements
and understandings between the parties as to such subject
matter. The terms of this Agreement are contractual, and not a
mere recital. The Parties acknowledge that neither party is relying
upon any statements or representations of the other party, other
than those set forth herein. This Agreement may be modified only
by an instrument in writing, signed by Beard and an authorized
agent of [Perot Jain].
6. Disclaimer of Reliance. Except for the specific representations
expressly 	made 	by 	[Perot 	Jain] 	in 	this 	Agreement, 	Beard
specifically disclaims that Beard is relying upon or has relied
upon 	on 	any 	communications, 	promises, 	statements,
inducements, or representation(s) that may have been made, oral
or written, regarding the subject matter of this Agreement. The
Parties represent that they are relying solely and only on their
own judgment in entering into this Agreement. Therefore, Beard
understands that Beard is precluded from bringing any fraud,
fraudulent inducement, or similar claim against [Perot Jain]
associated 	with 	any 	such 	communications, 	promises,
agreements, 	statements, 	inducements, 	understandings, 	or
representations.92
[¶ 106] 	All three reliance disclaimers are clear and unambiguous; in
exchange for an equity interest in specific companies—without mentioning
91 FAP Ex. B at 4 (bold original, italics added).
92 FAP Ex. C at 2 (emphasis original).

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 47
Access Healthcare—Beard agreed that he was not relying on any promises not
stated in those agreements.93
[¶ 107] 	Moreover, the Release Agreement has two separate reliance
disclaimers. 94 Not only does it have the same reliance disclaimer in the
Separation Agreement, but Beard separately agreed that he was not relying or
had relied on “any communications, promises, statements, inducements, or
representation(s) that may have been made, oral or written, regarding the
subject matter of this Agreement.”95
[¶ 108] 	Beard further acknowledged his understanding that he “is
precluded from bringing any fraud, fraudulent inducement or similar claim
against [Perot Jain] associated with any such communications, promises,
agreements, statements, inducements, understandings, or representations.”96
[¶ 109] 	Beard did not plead or argue that those disclaimers or other
contract terms are ambiguous, and the court finds no ambiguity or lack of
clarity in them. Nor did he allege fraud in the factum.97
[¶ 110] 	Beard expressly promised that he was not relying on any
93 FAP Ex. B. at 1; FAP Ex. C. at 1.
94 FAP Ex. C at 2.
95 FAP Ex. C at 2.
96 FAP Ex. C at 2.
97 Beard’s response argued that if defendants want to dispute the Employment Agreement’s

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 48
promises outside the Separation Agreement or the Release Agreement, yet his
fraud claims depend exclusively on oral promises not included in either
contract. Thus, these reliance disclaimers unambiguously defeat his fraud and
fraud in the inducement claims.
ii. Forest Oil Factors
[¶ 111] 	Nonetheless, Beard argues that the Separation and Release
Agreements’ 	disclaimer-of-reliance 	clauses 	are 	voidable 	because 	they
themselves were fraudulently induced.98 But nothing in the portion of Italian
Cowboy cited by Beard supports that notion. See 341 S.W.3d at 333. Instead,
the question is whether “the disclaimer-of-reliance clause[s] ha[ve] the
ʻrequisite clear and unequivocal expression of intent necessary to disclaim
reliance . . . on specific representations by [defendants].” 	Id. 	(quoting
Schlumberger, 959 S.W.2d at 179-80).
[¶ 112] 	To answer that question, the court applies the 	Forest Oil
factors. See id. at 337 n.8.
[¶ 113] 	To begin, “[I]t is unnecessary to satisfy each factor when the
parties’ intent to preclude a fraud claim is clear and unequivocal and a
plain terms, then the contract is ambiguous and cannot be resolved under Rule 91a. Resp.
at 45 (emphasis added).
98 Resp. at 25-26 (citing Italian Cowboy, 341 S.W.3d at 333).

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 49
sufficient number of factors are satisfied to meet the public policy concerns
expressed in Schlumberger and its progeny.” 	Newman v. Firstmark Credit
Union, No. 03-14-00315-CV, 2015 WL 4998326, *8 (Tex. App.—3rd Dist.,
August 21, 2015), judgment withdrawn, appeal dismissed, No. 03-14-00315-
CV, 2015 WL 9583880 (Tex. App. Dec. 31, 2015) (quoting Allen v. Devon
Energy Holdings, L.L.C., 367 S.W.3d 355, 384 (Tex. App.—1st Dist. 2012,
pet. granted, judgm’t vacated w.r.m.)).
[¶ 114] 	Factor One (whether the terms were negotiated, rather than
boilerplate, and whether the negotiations included the issue in dispute):99 The
parties discussed the Separation Agreement’s terms, including whether Beard
would get paid on Access Healthcare, which is the subject of the current
dispute.100
[¶ 115] 	Beard understood that the Separation Agreement excluded
Access Healthcare from the list of companies for which he could later receive
payment.101 Thus, the Access Healthcare issue was discussed and by omission
99 Forest Oil, 268 S.W.3d at 60.
100 FAP ¶s 22-26. 	After defendants filed their initial 91(a) motion, Beard amended his
petition. One amendment was to change his pleading that he “negotiated” the Separation
Agreement with Jain to he “discussed” it with Jain. Either way, none of its terms were a
surprise to him.
101 FAP ¶ 23, see also FAP Ex. B.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 50
excluded from promised future payment.
[¶ 116] 	Although Beard said that Perot Jain had complete control over
the Separation Agreement, he also admitted that he personally discussed the
exclusion of Access Healthcare from the Separation Agreement with Jain and
other Perot Jain employees.102
[¶ 117] 	Accordingly, 	Beard’s 	pleadings 	establish 	that 	Access
Healthcare’s exclusion from the Separation Agreement was negotiated—
therefore not boilerplate—and specifically discussed by the parties.
[¶ 118] 	As to the later Release Agreement, Beard pled that during
discussions leading to that contract, he directly negotiated with defendants’
outside legal counsel regarding the release’s terms and ultimately obtained the
changes he wanted. 103 Again, Beard admits that Access Healthcare was
discussed in these negotiations.
[¶ 119] 	In sum, Beard “discussed” the Separation Agreement with Jain
and other Perot Jain employees, and he personally negotiated the Release
Agreement with opposing counsel and obtained requested changes to that
agreement. 	And Access Healthcare was discussed in both situations. 	This
102 FAP ¶s 22, 23.
103 FAP ¶s 28, 30.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 51
factor favors defendants.
[¶ 120] 	Factor 	Two 	(was 	the 	complaining 	party 	represented 	by
counsel):104 The FAP does not say whether Beard consulted with his own
counsel before signing the Separation Agreement, so the court assumes he did
not do so. But that contract also recited that he was invited to consult with
counsel of his choosing, and he had forty-five days to do that while considering
Perot Jain’s offer.105 That was an ample opportunity to have consulted with
his own lawyer had he wanted to.
[¶ 121] 	Under circumstances similar to this case in which plaintiff was
“advised, and given ample opportunity, to consult counsel,” the court in
McLernon v. Dynegy, Inc. held that lack of advice of counsel did not nullify a
reliance disclaimer because the other Forest Oil factors were all present. 	See
347 S.W.3d 315, 332-33. The same applies here.
[¶ 122] 	Moreover, Beard consulted with his counsel before signing the
Release Agreement,106 which had a reliance disclaimer identical to the one he
agreed to in the Separation Agreement. 107 That is, Beard twice agreed to
104 Forest Oil, 268 S.W.3d at 60.
105 FAP Ex. B at 4.
106 FAP ¶ 28.
107 Compare FAP Ex. B at 4 (“The Parties acknowledge that neither party is relying upon
any statements or representations of the other party, other than those set forth herein.”)

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 52
identical 	reliance 	disclaimers 	negating 	his 	reliance 	on 	the 	alleged 	oral
representations on which his fraud claims rest—and his own counsel approved
that same language the second time.
[¶ 123] 	And his counsel-approved Release Agreement contained an
additional, and more explicit, disclaimer of reliance on anything defendants
told him that induced him to sign the Release agreement.108
[¶ 124] 	In sum, this factor favors defendants because Beard had forty-
five days to consult with his own counsel regarding the Separation Agreement
and he actually consulted his own counsel regarding the Release Agreement.
[¶ 125] 	Factor Three 	(did the parties deal with each other in an
arm’s-length transaction):109 An “arm’s length transaction” is one in which
the parties are “unrelated and unaffiliated,” or, “however closely related they
may be, [is] conducted as if the parties were strangers, so that no conflict of
interest arises.” 	Transaction, B LACK ’ S LAW DICTIONARY (12th ed. 2024); see
also Arm’s-length, BLACK ’S LAW DICTIONARY (12th ed. 2024) (“Of, relating to,
or involving dealings between two parties who are not related or not on close
(Separation Agreement) with FAP Ex. C at 2 (“The Parties acknowledge that neither party
is relying upon any statements or representations of the other party, other than those set
forth herein.”) (Release Agreement).
108 FAP Ex. C at 2.
109 Forest Oil, 268 S.W.3d at 60.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 53
terms and who are presumed to have roughly equal bargaining power; not
involving a confidential relationship.”).
[¶ 126] 	Beard signed the Separation Agreement as he was terminating
his 	employment 	with 	Perot 	Jain, 	which 	is 	an 	inherently 	adversarial
transaction with opposite parties looking out for their best interests. It is the
transaction by which the parties became “unaffiliated.” 	McLernon, 347
S.W.3d at 331. 	The fact that he understood he was terminating his prior
relationship with defendants evidences his objective awareness that whatever
relationship existed before was ending and he had to look out for himself.
[¶ 127] 	Defendants’ 	statements 	that 	they 	were 	not 	making 	any
promises 	to 	Beard 	that 	were 	not 	stated 	in 	the 	contracts 	and 	Beard’s
unambiguous agreement that he could not rely on anything defendants told
him that was not written in the contracts further notified him that the parties
were signing the contracts on an arm’s-length basis.
[¶ 128] 	Additionally, similar to the plaintiff in McLernon, Beard was
(i) advised to consult with an attorney before executing the Separation
Agreement and (ii) given a significant period of time to consider the agreement
and consult with counsel before signing, further supporting its arm’s-length

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 54
nature. Id.
[¶ 129] 	Furthermore, he signed the Release Agreement more than two
years after he left Perot Jain and as part of its buyout of Beard’s remaining
Separation Agreement compensation. 	That transaction, involving Beard’s
release of rights, was inherently arm’s-length.
[¶ 130] 	Beard argues that these were not arm’s-length transactions
because he trusted defendants based on their longstanding relationship.110 But
that presumed trust conflicts with the facts that (i) defendants never reduced
his bonus plan to writing; (ii) defendants never made him a partner in the
company; and (iii) at least with respect to the Release Agreement, Beard felt a
need to consult with his own lawyer. 111 See id. at 333 (fact parties were
negotiating a severance agreement and were not embroiled in any dispute at
the time did not preclude no-reliance clause’s enforceability). And he signed
the Release Agreement more than two years after he signed the Separation
Agreement.112
[¶ 131] 	Further, the supreme court has held many times that ordinarily
110 FAC ¶s 13, 14, 17, 18, 24, 38; Resp. at 33-35.
111 Resp. at 33.
112 See FAP Ex. C.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 55
trusting a counterparty is not grounds for ignoring a contract’s unambiguous
terms. 	Orca Assets, 546 S.W.3d at 654 (“[F]ailure to exercise reasonable
diligence is not excused by mere confidence in the honesty and integrity of the
other party.”); Roxo Energy, 713 S.W.3d at 409 (“[R]eliance upon an oral
representation that is directly contradicted by the express, unambiguous terms
of a written agreement between the parties is not justified as a matter of law.”).
[¶ 132] 	Additionally, Beard pled no facts suggesting that defendants
owed him fiduciary duties. And the supreme court has long refused to impose
an implied duty of good faith and fair dealing in contracts between parties,
even where the relationship has been a cordial one of long duration:
Travis Crim testified 	that 	he 	believed 	the 	relationship
with Navistar was 	one 	of 	mutual 	trust 	and 	confidence.
However, “mere subjective trust alone is not enough to transform
arms-length dealing into a fiduciary relationship.” Thigpen, 363
S.W.2d at 253. 	Further, the Crims point to language in the
contract 	which 	they 	claim 	articulates 	a 	special 	trust 	and
confidence between these parties beyond that ordinarily found
in a contract. We are unpersuaded that this language was ever
intended to inject an element of personal trust and confidence
above and beyond that which is ordinarily contemplated by
parties to contracts of this type.
Crim Truck & Tractor Co. v. Navistar Intern. Transp. Corp., 823 S.W.2d 591,
595 (Tex. 1992) (emphasis added, footnotes omitted). Regardless of whatever
trust and confidence Beard had in defendants when discussing the Separation

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 56
Agreement, the circumstances changed over two years and any relationship
beyond 	arm’s-length 	nature 	dissipated 	by 	when 	he 	signed 	the 	Release
Agreement.
[¶ 133] 	This factor favors defendants.
[¶ 134] 	Factor 	Four 	(was 	Beard 	knowledgeable 	about 	business
matters):113 As a West Point graduate and former Army Captain,114 Beard is
highly educated, highly capable, and able to look after himself. He is also a
sophisticated private equity portfolio manager experienced in international
transactions, debt financings, and mergers and acquisitions.115 He knows how
to negotiate with opposing counsel and how to obtain and consult with his own
counsel. 116 Beard’s response concedes that he is “a talented, experienced
businessman,”117 and at the hearing his counsel agreed that the pleaded facts
describe a highly sophisticated and successful investor.118
[¶ 135] 	Accordingly, this factor strongly favors defendants.
[¶ 136] 	Factor 	Five 	(was 	the 	relevant 	language 	clear): 119 The
113 Forest Oil, 268 S.W.3d at 60.
114 FAP ¶ 11.
115 See FAP ¶ 20.
116 FAP ¶s 26, 28, 33.
117 Resp. at 35.
118 July 21, 2026, Tr. at 18 (unofficial).
119 Forest Oil, 268 S.W.3d at 60.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 57
Separation Agreement unambiguously told Beard that Perot Jain’s promise to
pay future compensation was limited to only those companies on the Schedule
A attached to that contract—and Access Healthcare was not on that list. The
reliance disclaimers and merger clauses in both agreements were obvious and
unambiguous. 	Both contracts were short. 	A person of Beard’s experience,
sophistication, and abilities could not have missed or misunderstood what he
was signing.
[¶ 137] 	Thus, this factor strongly favors defendants.
* * *
[¶ 138] 	Accordingly, the court concludes that the Forest Oil factors as
a matter of law support enforcing both the Separation Agreement’s and
Release Agreement’s no-reliance clauses, those terms are binding against
Beard, and they defeat his fraud (and promissory estoppel)120 claims—without
directly resorting to red flags and direct contradiction analyses.
b. Red Flags and Direct Contradiction
[¶ 139] 	Beard’s pre-Separation Agreement oral promise to pay him a
120 “[S]ubstantial reliance by promisee to his detriment” is also an element of promissory
estoppel. Miller v. Raytheon Aircraft Co., 229 S.W.3d 358, 378–79 (Tex. App.—1st Dist.
2007, no pet.).

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 58
future promote regarding Access Healthcare directly 	conflicts with that
contract’s unambiguous terms in these ways: (i) that contract unambiguously
told Beard that his future carry would apply to only those companies listed on
Schedule A, and Access Healthcare is unambiguously absent from that list;
(ii) that contract’s merger clause was an affirmative statement to Beard that
Perot Jain (and by extension Perot and Jain) were not making any promises to
Beard that were not stated in that document; (iii) Beard agreed that he was not
relying 	on 	any 	such 	extracontractual 	promise; 	and 	(iv) Beard 	released
defendants from all existing or potential future claims except for claims
regarding 	companies 	on 	the 	Schedule 	A, 	which again excluded 	Access
Healthcare. See Westergren, 453 S.W.3d at 423-25 (reliance on oral contract
is 	not 	justified 	where 	“release’s 	plain 	language 	conflicted 	with 	[prior]
representations”); see also Mercedes-Benz, 583 S.W.3d at 559 (same).
[¶ 140] 	Not only is Beard’s Access Healthcare-based claim in direct
conflict with the Separation Agreement’s unambiguous terms, but those
contract terms were unmistakable red flags that defendants did not consider
Beard’s handshake agreement to be part of his potential future compensation.
See Roxo, 713 S.W.3d at 410 (absence of language confirming alleged oral

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 59
representations is itself a red flag negating justifiable reliance).
[¶ 141] 	Moreover, 	that 	defendants 	never 	admitted 	Beard 	to 	the
company and never reduced his promised carried interest compensation to a
definite agreement were additional red flags. 	The numerous red flags told
Beard that he needed to reduce his handshake agreement to writing to make it
enforceable. 	As a matter of law, these direct conflicts and red flags render
Beard’s reliance on any oral promises concerning the Separation Agreement
unjustifiable.
[¶ 142] 	Likewise, the Release Agreement’s no-reliance clause and the
merger 	clause—in 	conjunction 	with 	the 	reliance 	disclaimer 	and 	other
Separation 	Agreement 	terms—were 	even 	more 	red 	flags 	and 	direct
contradictions that as a matter of law negate Beard’s alleged justifiable
reliance on oral promises not contained in that contract.121 See Westergren,
453 S.W.3d at 423-25; Mercedes-Benz, 583 S.W.3d at 559; Roxo, 713 S.W.3d
at 410.
c. Conclusion
[¶ 143] 	Reliance disclaimers, merger clauses, and broad releases exist
121 The court is not concluding that the merger clause or disclaimer of representations alone
negate Beard’s fraud claims. See Italian Cowboy, 341 S.W.3d at 328.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 60
to bring certainty and finality to their parties’ agreements and relationships
and avoid future disputes. Courts enforce those contractual agreements when
they are open, unambiguous, and executed voluntarily, as the undisputed facts
establish here. 	See Italian Cowboy, 341 S.W.3d at 337 n.8; Forest Oil, 268
S.W.3d at 60-61.
[¶ 144] 	Moreover, courts conclude that there is no justifiable reliance
as a matter of law when the plain language of a written agreement contradicts
an alleged prior oral agreement. Roxo, 713 S.W.3d at 410. The contradictory
text is itself a red flag alerting a party that the oral discussions may no longer
be part of the deal. Id. at 410-11; Mercedes-Benz, 583 S.W.3d at 559.
[¶ 145] 	Accordingly, the court rejected Beard’s (i) fraud defenses to the
release agreements (see part IV(B)(4)(b) above) and (ii) Beard’s affirmative
fraud-based (and promissory estoppel, see part IV(F)(2) below) causes of
action.
[¶ 146] 	Finally, Beard’s Claim One singularly pleads both “common
law fraud” and “fraudulent inducement” as a single cause of action with no
discrete factual differences. 	Likewise, Beard’s response did not distinguish

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 61
between common law fraud and fraud in the inducement.122 So, the court
concluded that Beard raised no “common law fraud” claims apart from his
fraud in the inducement claims.123
[¶ 147] 	And in his response to defendants’ 91a motion, he disclaimed
that his fraud or fraudulent inducement claims were based on the Employment
Agreement.124 Therefore, even taking the FAP’s allegations as true, there is
no common law fraud claim separate and apart from Beard’s fraudulent
inducement claims. 	Accordingly, the court also dismissed his affirmative
fraud causes of action as having no basis in law. TEX . R. CIV. P. 91a.1.
d. Perot and Jain (Individually)
[¶ 148] 	Perot Jain could act only through its agents, and the FAP
alleges that Perot and Jain made the promises as Perot Jain’s principals.125
Because the court concluded above that Beard was not justified in relying on
the oral representations of Perot Jain and its agents in entering into the
Separation and Release Agreements, those conclusions also apply to Perot and
Jain because Beard’s claims against them individually are based on the same
122 See Resp. at 13, 20-21, 24-35, 38-40.
123 See FAP ¶s 36-44.
124 Resp. at 38-39.
125 FAP ¶s 23, 69.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 62
oral representations. Stated differently, Beard alleged that he was not relying
on what Jain and Perot told him. 	This is a tort issue of Beard’s inability to
prove an element of his causes of action, not a matter of contract law.
Specifically, justifiable reliance is an element of fraudulent inducement (and
fraud). Roxo, 713 S.W.3d at 408. It is not an affirmative defense to be proven
by a particular defendant.
[¶ 149] 	Given the court’s conclusion that Beard’s allegations, taken as
true, together with inferences reasonably drawn from them, cannot as a matter
of law establish the element of justifiable reliance 	as to Perot Jain, those
allegations do not somehow become legally sufficient as to Perot and Jain
individually. See TEX . R. CIV. P. 91a.1.
[¶ 150] 	Moreover, on at least one occasion the supreme court has not
distinguished between a corporate signatory and its agents in the context of
fraudulent inducement claims. Specifically, in Mercedes-Benz, Carduco signed
a Dealer Agreement with Mercedes-Benz USA, LLC (MBUSA) that prohibited
Carduco from changing locations without MBUSA’s written consent. 	583
S.W.3d at 556. Later, Carduco sued MBUSA and three of its agents because
Carduco alleged they induced it to believe that its bargain with MBUSA

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 63
included the opportunity to relocate. Id.
[¶ 151] 	The supreme court overturned judgments against MBUSA and
the three individuals because reliance upon oral representations that were
directly contradicted by the plain terms of the Dealer 	Agreement was
unjustified as a matter of law. Id. at 559, 563. In doing so, the supreme court
did not distinguish between MBUSA and the individual defendants, despite
the fact the Dealer Agreement was only between MBUSA and Carduco. Id. at
556.
[¶ 152] 	Finally, the Separation Agreement’s release explicitly names
“H.R. Perot, Jr. and Anurag Jain” as Company Releasees.126 Therefore, the
agreement releases Perot and Jain from every claim it covers.
D. Claim Four: Breach of Contract—Employment Agreement (Perot Jain)
[¶ 153] 	Beard’s 	contract 	breach 	claim 	based 	on 	the 	Employment
Agreement fails for several reasons:
[¶ 154] 	For starters, for the reasons discussed in part IV(B) above, the
Separation Agreement’s release unambiguously defeats all breach of contract
126 FAP Ex. B. at 2.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 64
claims based on the Employment Agreement.
[¶ 155] 	Next, the Separation Agreement’s merger clause supersedes
the Employment Agreement’s promote provision. Both contracts are between
Beard and Perot Jain. 	Separation Agreement § 1(b) recites that Perot Jain
“previously agreed that Beard would receive a promote,” but going forward it
limits that promote to a carry “applicable only to the companies identified in
Schedule A.”127 Separation Agreement ¶ 9 in turn states:
This Agreement constitutes the entire Agreement between the
Parties hereto and contains all of the covenants, agreements and
understandings between the parties. The Parties agree that there
are 	no 	other 	agreements, 	statements, 	promises 	or
representations by any Party hereto, or any party purporting to
represent any Party hereto.128
[¶ 156] 	Therefore, 	the 	Separation 	Agreement is 	the 	parties’ 	final
agreement on the promote’s scope, and the Employment Agreement’s prior
eligibility language cannot be enforced because it conflicts with this later final
agreement. See Italian Cowboy, 341 at 334. As discussed throughout above,
that scope did not include equity in Access Healthcare.
[¶ 157] 	Accordingly, Beard’s Employment Agreement breach claim
127 FAP Ex. B at 1.
128 FAP Ex. B at 4.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 65
fails as a matter of law.
E. Claim Five: Breach of Contract—Handshake Agreement (All Defendants)
[¶ 158] 	Beard’s Claim Five rests on an alleged oral agreement whereby
defendants promised that he would be paid the value of his three percent equity
interest in Access Healthcare upon an Access Healthcare liquidity event.129
However, Beard admits that the Separation Agreement expressly excluded
Access Healthcare from the exclusive list of Schedule A companies for which
Beard could receive future carried interest payments.130 See City of Houston v.
Williams, 353 S.W.3d 128, 145 (Tex. 2011) (purposeful inclusion of specific
terms in a writing implies the purposeful exclusion of terms that do not
appear); see also Antonin Scalia and Bryan A. Garner, Reading Law 107
(2012). Indeed, the Separation Agreement unambiguously states as much.131
[¶ 159] 	Furthermore, Separation Agreement ¶ 2 disclaimed any right
to 	further 	compensation 	not 	expressly 	provided 	for 	in 	the 	Separation
Agreement, 	which 	unambiguously 	excluded 	compensation 	for 	Access
Healthcare by omitting it from the list of companies for which he could receive
129 FAP ¶ 62.
130 FAP ¶ 63.
131 FAP Ex. B at 1.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 66
future compensation.132
[¶ 160] 	Additionally, Beard pled that defendants made the promise in
discussions that produced the Separation Agreement and before he signed it.133
So, it is a prior or contemporaneous oral agreement on the same subject of the
Separation 	Agreement—post-employment 	payments 	tied 	to 	portfolio
companies—and 	therefore 	barred 	by 	the 	parol 	evidence 	rule 	and 	that
contract’s merger clause. See West, 573 S.W.3d at 243; Hubacek, 317 S.W.2d
at 31.
[¶ 161] 	A fully integrated writing supersedes prior or contemporaneous
oral agreements. 	Italian Cowboy, 341 S.W.3d at 334. 	And the collateral
agreement 	exception 	does 	not 	apply 	because 	the 	alleged 	oral 	promise
contradicts the written contract. 	Sacks, 266 S.W.3d at 450-51. 	The
Separation Agreement states that the carry applies “only” to Schedule A
companies and confirms there are “no other agreements, statements, promises
or representations.” 	Furthermore, the contract may be modified “only by an
instrument in writing.” Because the only performance Beard alleges under the
132 FAP Ex. B at 2.
133 FAP Ex. B at 4.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 67
handshake agreement is his signing of the Separation Agreement 134 , the
handshake agreement was part of the transaction integrated by the writing.
[¶ 162] 	Moreover, the Release Agreement’s merger clause has the same
effect.
F. Promissory Estoppel, Quantum Meruit, and Rescission
1. Introduction
[¶ 163] 	Beard posits that the court should not dismiss his alternative
promissory estoppel, quantum meruit, and rescission claims because he is
permitted to plead alternative claims and they each withstand 91a scrutiny.135
He is correct that he may assert alternative claims, but his alternative claims
fail for the following reasons.
2. Claim Two: Promissory Estoppel (All Defendants)
[¶ 164] 	Beard pleads his promissory estoppel claim based on services
he provided regarding Access Healthcare before he left and signed the
Separation Agreement. 136 This claim fails as a matter of law for several
reasons.
[¶ 165] 	First, for the reasons described in part IV(C)(6) above, Beard’s
134 FAP ¶ 63.
135 Resp. at 22-23.
136 FAP ¶s 46-48.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 68
reliance on defendants’ alleged promises is negated as a matter of law. 	See
Miller, 229 S.W.3d at 378–79 (reliance is an element of promissory estoppel).
[¶ 166] 	Second, the alleged promises are the subject of his Employment
Agreement. 137 Because the services on which he bases his claim are the
services that are the subject of his Employment Agreement, promissory
estoppel does not apply. 	See Barnett v. Coppell N. Tex. Ct., Ltd., 123 S.W.3d
804 (Tex. App.—5th Dist. 2003, pet. denied) (“Promissory estoppel does not
apply to a promise covered by a valid contract between the parties[.]”); see also
Wheeler v. White, 398 S.W.2d 93, 97 (Tex. 1965) (“[W]here there is actually
no contract the promissory estoppel theory may be invoked, thereby supplying
a remedy which will enable the injured party to be compensated for his
foreseeable, definite, and substantial reliance.”). They are also the subject of
the Separation and Release Agreements because the parties discussed Access
Healthcare regarding both transactions and did not include it in those
contracts.
[¶ 167] 	Third, the remedy is limited to reliance damages, which are the
amount needed to restore the promisee to the position he would have been in
137 See FAP ¶s 17, 46.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 69
had he not acted in reliance upon the promise. Wheeler, 398 S.W.2d at 97. It
excludes expectancy damage, or the profits expected from the promise. 	See
Lamajak v. Frazin, 230 S.W.3d 786, 794 (Tex. App.—5th Dist. 2007, no pet.)
(reliance damages proper recovery for promissory estoppel).
[¶ 168] 	Here, Beard concedes that reliance damages are the sole
available measure, yet his response defines them as “the value of Beard’s 3%
interest . . . [he] would have received if he had not deferred his right.”138
However, 	these 	would 	be 	expectancy 	damages. 	Aside 	from 	this
mischaracterized 	measure 	and 	a 	conclusory 	reference 	to 	“reasonable
expenses,” 139 neither 	the 	FAP 	nor 	the 	response 	identifies 	any 	reliance
expenditure, cost, or change of position. 	See First Rsrv., 671 S.W.2d at 662.
The only other detriment claimed—the forbearance—is not legally cognizable
because the right Beard claims he chose not to enforce never existed and had
already been released. 140
[¶ 169] 	Accordingly, because Beard’s requested benefits of the bargain
138 Resp. at 41.
139 FAP ¶ 80(c).
140 FAP ¶ 83.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 70
are not available, this claim fails to state a viable claim for recovery.
3. Claim Three: Quantum Meruit (All Defendants)
[¶ 170] 	Beard’s quantum meruit claim is another alternative, equitable
remedy concerning the services he provided defendants before he left and
signed the Separation Agreement.141
[¶ 171] 	This claim fails for the same reasons that his promissory
estoppel claim fails. A party cannot recover in quantum meruit when a valid
contract covering the services exists. 	In re Kellogg Brown & Root, Inc., 166
S.W.3d 732, 740 (Tex. 2005). However, the existence of an express contract
does not preclude recovery in quantum meruit for the reasonable value of work
performed that is not covered by an express contract. Champion Food Service,
Inc. v. ProAlamo Foods, L.L.C., 738 S.W.3d 511 (Tex. 2026).
[¶ 172] 	Here, Beard’s valid Employment Agreement covers his services,
including his work on Access Healthcare. Further, the Separation Agreement
explicitly limits his carry to the companies listed in Schedule A.
[¶ 173] 	Moreover, as to Perot and Jain individually, quantum meruit
requires that the services have been rendered for the person sought to be
141 FAP ¶s 51-54.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 71
charged and accepted by that person under circumstances giving notice that
the plaintiff expected payment from him. 	Hill v. Shamoun & Norman, LLP,
544 S.W.3d 724, 732-33 (Tex. 2018); Heldenfels Bros., Inc. v. City of Corpus
Christi, 832 S.W.2d 39, 41 (Tex. 1992). 	However, Beard pled that he
performed his work as a Perot Jain employee for Perot Jain and expected
compensation only from the company.142
[¶ 174] 	Accordingly, his quantum meruit claim fails as a matter of law.
4. Claim Six: Rescission of the Employment Agreement (Perot Jain)
[¶ 175] 	Finally, Beard’s rescission claim fails because rescission is a
remedy, and all other claims independently fail. 	See Cruz v. Andrews
Restoration, Inc., 364 S.W.3d 817, 825-26 (Tex. 2012) (rescission is an
equitable remedy and shorthand for composite remedy of rescission and
restitution).
[¶ 176] 	Here, Beard did not plead that he tendered a return of all
consideration he received under the Employment Agreement. A party seeking
rescission must return, or offer to return the value of benefit, and the offer must
precede a request for rescission. 	Cruz, 364 S.W.3d at 824-26; Hart v.
142 FAP ¶s 16-20, 50-54.

OPINION ON DEFENDANTS’ MOTION TO DISMISS , Page 72
Besselman, No. 07-24-00219-CV, 2025 WL 1561279, at *1-2 (Tex. App.—7th
Dist., June 2, 2025, pet. denied) (mem. op.). Beard’s counsel confirmed at the
hearing that no tender had been made or pleaded and that Beard would tender
only if later required.143 That is not an offer to restore.
V. 	C ONCLUSION
[¶ 177] 	Based upon the foregoing, the court issued its August 10, 2026,
Order, (i) granting defendants’ motion to dismiss and (ii) dismissing Beard’s
claims with prejudice.144
It is so ORDERED.
BILL WHITEHILL
Judge of the Texas Business Court,
First Division
SIGNED: September 22, 2026
143 July 21, 2026, Tr. at 40-41 (unofficial).
144 August 10, 2026, Order Granting Defendants’ Motion to Dismiss.

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