Scene: A cafe in Uptown Dallas. Noonish. Sunlight streams through half-open vertical blinds. The beams hurt your eyes. Or they would if you hadn't left as soon as Bitey started talking about the Italian Cowboy case.
Bitey: Just think, Snappy, the Supreme Court of Texas just ruled for plaintiffs last week! Shazaam!
Snappy: Imagine my surprise.
Bitey: A landlord told a nice tenant that the space they leased for a new restaurant didn't have any problems, but in fact the landlord knew about a BAD problem.
Snappy: Truly, your real estate story so far has whetted my appetite. I can only pray it somehow concerns the rule against perpetuities.
Bitey: No interest is valid unless it must fest, if at all, within 21 years of a life in being at the time of the creation of the interest.
Snappy: You amaze me. Did you say "fest"? Surely you meant "vest". And did the problem in Italian Cowboy involve a lease that went more than 21 years after the life in being?
Bitey: Nay. It concerned sewage. Rather the odor of sewage.
Snappy: Go. On.
Bitey: The landlord said that, even if it did commit fraud, the fraud wouldn't count because the lease said the landlord hadn't "made any representations or promises with respect to the Site, the Shopping Center or this lease except as expressly set forth herein."
Bitey: So, the lease said bupkes about the nasty smell, and the court of appeals held that the clause negated the awful-aroma-as-fraud claim as a matter of law.
Snappy: Of course it did. You can't sign one of those lease things that says X and later win a lawsuit where you say not-X. That'd make a court party to a lie. To a lie, I tells ya!
Bitey: Uh, not according to six of the nine justices. They said the clause did nothing more than make the oral "representations or promises", which the lease said didn't exist, unenforceable as part of the lease contract.
Bitey: The majority felt that, if you want to negate fraud with contract language, you have to do it pretty plainly. Something like "I don't care if you did lie to me about not hooking up the sewage pipes to the grease trap before I signed this contract. I disclaim any reliance on stuff you said before. I waive any fraud claim against you. I don't care if the place does stink to high heaven. I'll fix it myself if I have to. Go hence without day."
Snappy: Well, that has the virtue at least of making things clear.
Bitey: And how.
Snappy: What gives with that court, by the way. A couple of years ago Italian Cowboy would have gone the other way.
Bitey: Beats me. But do you plan to eat the rest of those cheese fries, Snappy? My doctor says I need the calcium.
Exit Snappy and Bitey.
Italian Cowboy Partners, Ltd. v. The Prudential Ins. Co. of Am., No. 08-0989 (Tex. Apr. 15, 2011).