Opinion
NO. 01-18-00138-CV
12-20-2018
MAXIMO JUDA, Appellant v. MARINEMAX, INC., Appellee
On Appeal from the 164th District Court Harris County, Texas
Trial Court Case No. 2015-39232
MEMORANDUM OPINION
Appellant, Maximo Juda, challenges the trial court's rendition of summary judgment in favor of appellee, MarineMax, Inc. ("MarineMax"), on his claims against it for violations of the Deceptive Trade Practices Act ("DTPA"), breach of contract, negligence, and gross negligence. In six issues, Juda contends that the trial court erred in granting summary judgment in favor of MarineMax.
See TEX. BUS. & COM. CODE ANN. §§ 17.41-17.63 (Vernon 2011 & Supp. 2018).
We affirm.
Background
In his third amended petition, Juda alleged that he purchased a new 2014 330 Sea Ray Sundancer yacht (the "boat") from MarineMax on or about January 13, 2015 for $239,990.83. He purchased the boat based on representations from MarineMax that it "was of the highest quality," "was new," "was free of defects," and "before its delivery," would be "completely inspected, sea tested and ready for use." MarineMax did not inform Juda at the time of purchase that it would not provide a warranty for the boat, that the boat was being sold "as is," and that the manufacturer's warranty was "extremely limited and his failure to notify" the manufacturer, "in writing, of more than one attempt to repair his boat would result in forfeiture of the entire Sea Ray warranty."
On April 19, 2015, during Juda's first attempt to use the boat on Lake Conroe with his two young children, the "carbon monoxide alarm sounded, the generator failed[,] and the port engine failed." And Juda returned the boat to MarineMax for repairs. Although MarineMax subsequently "claimed [that] the failures had been repaired," when Juda, on April 25, 2015, attempted to use the boat again with his family, the generator failed and the carbon monoxide alarm sounded, "forcing everyone to vacate the cabin." MarineMax again "promised to fix the problem." But the generator failed a third time when Juda attempted to take the boat out on May 10, 2015. Further, unbeknownst to Juda, MarineMax discovered a "fuel leak associated with the generator," making it "extremely unsafe" and "exposing Juda and his family to the risk of a life-threatening explosion and/or fire." This leak was not disclosed to Juda, and he only learned of it during the litigation.
Ultimately, MarineMax engaged another company to repair the boat. Due to delays on the part of this company, it took "over a year and six attempts before the fuel leak and generator were finally repaired." Moreover, the "life threatening carbon monoxide issue has never been repaired and tested, meaning the boat is still not usable."
Juda brought claims against MarineMax for violations of the Deceptive Trade Practices Act ("DTPA"), breach of contract, negligence, and gross negligence. And he sought damages for a "total loss of use" of the boat in the amount of $239,990.00, rental slip expenses at "the rate of approximately $450.00 per month," cleaning costs of "approximately $2,000.00" per quarter, "[i]nterest on the financing" of the boat, insurance in the amount of approximately $2,532 per year, and mental anguish. Juda also sought to recover his attorneys' fees.
Id.
MarineMax filed a general denial, asserting various affirmative defenses, including the defense that Juda purchased the boat "as is." It then filed a summary-judgment motion, arguing: (1) Juda's claims fail as a matter of law because he purchased the boat "as is" and recognized that it had disclaimed all warranties; (2) his "DTPA unconscionability claim fails because mere failure to perform a promise does not constitute an unconscionable act"; (3) his breach-of-contract claim fails because he "accepted delivery of the goods in writing and, even if they were actionable, they are barred by the statute of frauds"; (4) the economic loss doctrine bars his "negligent repair and supervision claims"; (5) "his negligent failure to warn claim fails because he has presented no evidence to support that claim"; and (6) he "suffered no damage or injury, so he cannot recover from MarineMax."
MarineMax attached to its summary-judgment motion the Purchase Agreement executed by the parties, Sea Ray's Limited Warranty, an Acceptance of Vessel document executed by Juda, emails from him, a Marine Limited Warranty by Kholer Co. for "Marine Generator Sets and Accessories In Pleasure Craft," Juda's Responses to Interrogatories, and excerpts from his deposition and those of Paul Glenn, Edward Bartoszewski, and Larry Crouch.
The Purchase Agreement is a two-page document. On the front, it provides certain basic information about the boat that Juda had purchased. The following language is printed in bolded, capitalized typeface directly above Juda's signature on the first page:
BUYER ACKNOWLEDGES RECEIVING A FULLY COMPLETED COPY OF THIS AGREEMENT. BUYER ACKNOWLEDGES READING AND UNDERSTANDING ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT, INCLUDING THE TERMS AND CONDITIONS ON THE REVERSE SIDE OF THIS AGREEMENT.The reverse side of the Purchase Agreement contains the following terms:
SEE THE REVERSE SIDE OF THIS AGREEMENT FOR IMPORTANT INFORMATION REGARDING LIMITATIONS OF WARRANTY.
1. MANUFACTURER'S WARRANTY. The boat, motor, and accessories sold pursuant to this agreement are only subject to applicable manufacturer's warranties, if any, except as otherwise expressly provided in this Agreement.
2. DISCLAIMER OF WARRANTIES [("'as is' clause")]: THE BOAT, MOTOR AND ACCESSORIES BEING PURCHASED PURSUANT TO THIS AGREEMENT ARE SOLD BY SELLER "AS IS" AND SELLER MAKES NO WARRANTIES ON ITS OWN BEHALF, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, unless Seller gives Buyer a written warranty on its own behalf or Seller enters into a service contract in connection with this sale or within 90 days of sale. If Seller gives Buyer a written warranty on its on its own behalf or enters into a service contract in connection with this sale or within 90 days of this sale, then any implied warranties shall be limited in duration to the duration of Seller's written warranty or service contract. IN ALL CASES, SELLER SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE BREACH OF THIS AGREEMENT, ANY EXPRESS OR
IMPLIED WARRANTY OR OTHERWISE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
. . . .
8. ENTIRE AGREEMENT [("merger clause")]. This Agreement constitutes the entire agreement between the parties and no other verbal, written or printed representations, claims or inducements are incorporated into this Agreement, unless in writing and signed by both parties. This Agreement supersedes any prior Purchase Agreement between Buyer and Seller for the purchase of a boat, motor and/or accessories that has not been consummated. Except as specifically set forth in this Agreement, Seller disclaims any representations or statements by any agents, employees or representatives, whether verbal or in writing, in advertisements or brochures, and Buyer has not relied upon any such representations or statements.
In his deposition, Paul Glenn, a salesman for MarineMax, testified that MarineMax had Juda's boat transferred from another facility in Florida. When it arrived at MarineMax's facility in Seabrook, Texas, Glenn scheduled an orientation with Juda. At the March 23, 2015 orientation, Glenn took Juda out onto the boat and showed him how to operate everything. Glenn and Juda identified a few "issues," including a "snap on the driver's side canvas that needed to be replaced," a "scratch on the steering wheel," and a problem with the "VHF antenna." Otherwise, the orientation "went well." Glenn further testified that Juda, without complaint, used the boat in MarineMax's Marina, on Clear Lake, while awaiting repairs and the installation of supplemental equipment that he had requested. Glenn did not recall having any discussions with Juda regarding a warranty on the boat. And the complaints alleged by Juda in this suit did not arise until after the boat was transferred to Lake Conroe on April 10, 2015.
In his response to MarineMax's summary-judgment motion, Juda asserted that: (1) he did not buy the boat "as is" because the "as is" provision was not prominently displayed or fully negotiated; (2) MarineMax engaged in unconscionable actions prohibited by the DTPA, including making misrepresentations about the warranty on the boat, not alerting him to the fact that there were important terms "hidden" on the back of the purchase agreement, and unreasonably delaying the repairs of the boat; (3) the Uniform Commercial Code ("UCC") does not apply to bar his breach-of-contract claim; (4) the economic loss doctrine does not bar his claim for negligent repair and supervision and there is evidence to support his claim for negligent failure to warn; and (5) there is evidence that he sustained damages as a result of MarineMax's wrongdoing.
Juda attached to his response a transcript of his deposition testimony, the Purchase Agreement, his affidavit in which he testified about certain damages, and Crouch's deposition testimony. In his deposition, Juda testified about his education and extensive business experience as a salesperson, Chief Operations Officer, and Chief Executive Officer of companies over the course of his career. He noted that Glenn had represented to him that MarineMax had a "great" warranty and the "product was new, safe and[,] . . . free from defects." However, he admitted that he had not seen documentation of any warranty before signing the Purchase Agreement. Juda explained that he signed the Purchase Agreement when a salesperson named Shane Gest came to his house with paperwork. When Gest attempted to sell him an "extended" warranty, he declined. And Juda signed the Purchase Agreement and other paperwork without reading it because Gest was "in a hurry" and represented to Juda that the documents he had brought for him to sign were "standard" and signed by all buyers.
In its reply, MarineMax objected to Juda's affidavit testimony about certain damages that he had suffered as "inadmissible and incompetent summary judgment" evidence, asserting he was not "designated as an expert and d[id] not have the requisite qualifications to give such testimony." It further argued that he did not "fit within the property owner rule" because he "d[id] not provide a legally sufficient basis for his fair market value of the boat, which he estimates as zero."
Juda then filed a supplemental affidavit, explaining that his "opinion that the fair market value of the boat is zero is based upon" his "personal knowledge" of the amount he paid for the boat in 2015, discussions with other boat owners, attendance at boat shows, and review of online resources advertising the sale of boats. He further testified that "no person" would purchase a boat that posed a threat of carbon monoxide poisoning.
At a hearing on MarineMax's summary-judgment motion, the trial court overruled its objections to Juda's summary-judgment evidence. And it subsequently entered an order granting the motion, noting that "Juda has presented no evidence of damages" as to each of his causes of action, and dismissing his claims against MarineMax with prejudice.
Juda then filed a motion for new trial, which the trial court denied.
Standard of Review
We review a trial court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting our review, we take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant's favor. Valence Operating, 164 S.W.3d at 661; Provident Life, 128 S.W.3d at 215. We may uphold the trial court's judgment based on any grounds properly raised before the trial court. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996) (explaining "rule 166a does not prevent an appellate court from affirming the judgment on other grounds the party properly raised before the trial court").
A party seeking summary judgment may move for both matter-of-law and no-evidence summary judgment. Binur v. Jacobo, 135 S.W.3d 646, 650 (Tex. 2004); see also TEX. R. CIV. P. 166a(c), (i). When a party has sought summary judgment on both grounds, we typically review first the propriety of the summary judgment under the no-evidence standard. See Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); Deweese v. Ocwen Loan Servicing L.L.C., No. 01-13-00861-CV, 2014 WL 6998063, at *2 n.1 (Tex. App.—Houston [1st Dist.] Dec. 11, 2014, no pet.) (mem. op.). However, in the interest of efficiency, we may review a summary judgment under the matter-of-law standard first if it would be dispositive. Deweese, 2014 WL 6998063, at *2 n.1; see also TEX. R. APP. P. 47.1.
In a matter-of-law summary-judgment motion, the movant has the burden to show that no genuine issue of material fact exists, and the trial court should grant judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A defendant moving for summary judgment as a matter of law must either: (1) negate at least one essential element of each of the plaintiff's causes of action or (2) plead and conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Lujan v. Navistar Fin. Corp., 433 S.W.3d 699, 704 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Once the movant meets its burden, the burden shifts to the non-movant to raise a genuine issue of material fact precluding summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Transcon. Ins. Co. v. Briggs Equip. Trust, 321 S.W.3d 685, 691 (Tex. App.—Houston [14th Dist.] 2010, no pet.). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).
"As Is" Disclaimer
In his fifth issue, Juda argues that the trial court erred in granting summary judgment based on MarineMax's "as is" affirmative defense because "MarineMax did not identify the elements of the affirmative defense, much less provide summary[-]judgment [proof] of the elements."
In his reply brief, Juda argues that we cannot consider MarineMax's "Other Grounds" for affirmance because it did not raise them as a "cross-issue" or "cross-point." However, MarineMax addressed the basis of the trial court's ruling in its brief, asserting that there were other grounds raised, including the "as is" defense, in its motion for summary judgment, which "provided a sufficient basis for the trial court to grant it summary judgment and dismiss Juda's claims." MarineMax was not required to file a notice of appeal to present a cross-issue or cross-point as to this asserted ground. See TEX. R. APP. P. 25.1(c). Although MarineMax did not title its arguments in its brief as "cross-points," they are sufficiently briefed and provide an alternative basis for affirmance. We conclude that MarineMax has sufficiently raised its alternative basis for affirming on the ground of the "as is" clause.
The Texas Supreme Court has held that, generally, an "as is" clause will defeat the element of causation in DTPA, fraud, and negligence claims. Prudential Ins. Co. of Am. v. Jefferson Assocs., 896 S.W.2d 156, 161 (Tex. 1995). When a buyer executes an agreement to purchase something "as is," he agrees to make his own appraisal of the bargain and accept the risk that he may be wrong. Id. And the seller gives no assurances, express or implied, concerning the condition of the thing sold. Id. Thus, the buyer chooses to rely completely on his own determination of the condition and value of the purchase, removing the possibility that the seller's conduct will cause him damage. Id.
However, there are exceptions to the general rule when the "as is" clause is a product of fraudulent representation or fraudulent concealment by the seller or the seller obstructs the buyer's ability to inspect the property. Id. at 162; Bynum v. Prudential Residential Servs., 129 S.W.3d 781, 788-89 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). In determining whether an "as is" clause is enforceable, we must also consider the totality of the circumstances surrounding the agreement. Jefferson Assocs., 896 S.W.2d at 162. Factors to consider are whether the "as is" clause is an important part of the basis of the bargain, rather than an incidental, boiler-plate provision, and whether the parties have relatively equal bargaining positions. Id. In opposing a summary judgment based on an "as is" clause, buyers bear the burden of adducing more than a scintilla of proof raising an issue of fact as to its enforceability. See Van Duren v. Chife, No. 01-17-00607-CV, — S.W.3d —, 2018 WL 2246213, at *6 (Tex. App.—Houston [1st Dist.] May 17, 2018, no pet.).
In part of his fifth issue, Juda argues that MarineMax is not entitled to summary judgment based on its "as is" defense because it "did not identify the elements of the affirmative defense." In support of his argument, he relies on Harstan, Ltd. v. Si Kyu Kim, 441 S.W.3d 791 (Tex. App.—El Paso 2014, no pet.), asserting that MarineMax needed to conclusively establish the following "elements": (1) he "was as sophisticated a boat purchaser as MarineMax was a seller," (2) he "bargained for and relied on the 'as is' provision in purchasing the boat," and (3) "MarineMax did not make any knowing representation or concealment of a known fact." However, the court in Harstan explained that Prudential set forth the following factors for courts to consider in assessing the validity of an "as is" agreement: "(1) the sophistication of the parties; (2) the terms of the 'as is' agreement; and (3) whether there was a knowing misrepresentation or concealment of a known fact." Id. at 797; compare Element, BLACK'S LAW DICTIONARY (10th ed. 2014) ("A constituent part of a claim that must be proved for the claim to succeed."), with Factor, BLACK'S LAW DICTIONARY (10th ed. 2014) ("An agent or cause that contributes to a particular result.").
In its summary-judgment motion, MarineMax asserted that: Juda executed the Purchase Agreement and is "presumed to have read what he signed"; the "'as-is' portion and [merger] clause were not boilerplate language buried in a lengthy contract" but consisted of "capitalized, bolded language contained in a two[-]page document"; and he is the "CEO of a large multinational company who regularly deals with contracts and attorneys, making him a sophisticated party who was more than competent to contract." MarineMax also attached to its motion a copy of the Purchase Agreement, executed by Juda, which contains the "as is" clause, as well as deposition testimony about the circumstances surrounding his execution of the agreement.
Thus, MarineMax properly raised its "as is" defense to the trial court. We overrule this portion of Juda's fifth issue.
In the remaining portion of his fifth issue, Juda argues that MarineMax is not entitled to summary judgment on its "as is" defense because he raised fact issues as to each "element." To be clear, nowhere in the Prudential opinion, or elsewhere, did the Texas Supreme Court set forth elements that must all be established to prevail based on an "as is" clause. Instead, we are to consider the "totality of the circumstances." Jefferson Assocs., 896 S.W.2d at 162. "Whether the 'as is' clause is an important part of the basis of the bargain, rather than an incidental 'boiler-plate' provision, and whether the parties have relatively equal bargaining positions are factors to consider." Bynum, 129 S.W.3d at 789 (emphasis added) (citing Jefferson Assocs., 896 S.W.2d at 162).
In regard to the language of the Purchase Agreement, this factor weighs heavily in favor of enforcement of the "as is" provision. Juda asserts that MarineMax "concealed" the "as is" provision on a "back page in a stack of documents." However, the clause is not buried in a lengthy or complex agreement, but is instead printed on the back page of a two-page document in bolded and capitalized typeface. Further, Juda signed the first page of the agreement, directly below the following language:
BUYER ACKNOWLEDGES RECEIVING A FULLY COMPLETED COPY OF THIS AGREEMENT. BUYER ACKNOWLEDGES READING AND UNDERSTANDING ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT, INCLUDING THE TERMS AND CONDITIONS ON THE REVERSE SIDE OF THIS AGREEMENT.Juda does not dispute the existence of this language. Instead, he asserts that he signed the agreement without reading it because the salesperson who came to his house was "in a hurry." However, the law does not "excuse[] a party's failure to read a contract when the party has an opportunity to do so," but instead "presumes that the party knows and accepts the contract terms." Nat'l Prop. Holdings, L.P. v. Westergren, 453 S.W.3d 419, 425 (Tex. 2015) (rejecting claim party fraudulently induced into signing written release he did not read because he did not have reading glasses and signed only because "in a hurry"); In re Raymond James & Assocs., 196 S.W.3d 311, 318-19 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ("A person who signs a contract is presumed to have read and understood the contract and to have fully comprehended its legal effect."). Thus, Juda must be charged with knowing the terms of the Purchase Agreement that he signed. And he cannot reasonably argue that the "as is" clause was "concealed" from him where the explicit language immediately preceding his signature on the front page alerted him to "TERMS AND CONDITIONS ON THE REVERSE SIDE OF THIS AGREEMENT" and also to "SEE THE REVERSE SIDE OF THIS AGREEMENT FOR IMPORTANT INFORMATION REGARDING LIMITATIONS OF WARRANTIES."
SEE THE REVERSE SIDE OF THIS AGREEMENT FOR IMPORTANT INFORMATION REGARDING LIMITATIONS OF WARRANTIES.
Further, although the "as is" provision may contain standard or "boilerplate" language, it cannot merely be an "incidental" or insignificant part of the bargain given that the express warning above Juda's signature that the reverse side of the agreement contains "IMPORTANT INFORMATION REGARDING LIMITATION OF WARRANTIES." And although whether the "as is" provision was directly negotiated may be informative, it is not dispositive to our analysis. See Jefferson Assocs., 896 S.W.2d at 162 (considering the "totality of the circumstances").
In regard to the bargaining power and relative sophistication of the parties entering into the Purchase Agreement, it is undisputed that Juda is a highly educated and sophisticated businessman who deals with attorneys and contracts regularly in his daily business. He is arguably a much more sophisticated buyer than someone with less education or business experience. See Oakwood Mobile Homes, Inc. v. Cabler, 73 S.W.3d 363, 371-72 (Tex. App.—El Paso 2002, pet. denied) (holding seller's disclaimers not binding on buyers where seller in business of selling homes, but buyer-husband had tenth-grade education and had never purchased home, and buyer-wife had high school diploma and one year of college). However, Juda's education and business experience alone do not establish parity among the parties in regard to negotiation as he had no experience buying or selling boats. See Woodlands Land Dev. Co. v. Jenkins, 48 S.W.3d 415, 422 (Tex. App.—Beaumont 2001, no pet.) (holding "as is" clause not bar to claims where several factors weighed against enforcement, including sophistication of parties where buyer businessman who had dealt with contracts, but had no experience buying or selling real estate). Considering both Juda's sophistication as a businessman, but also his lack of knowledge about purchasing boats, we conclude that this factor weighs neither for nor against enforcement of the "as is" clause.
Further, we note that this case is readily distinguishable from others cited by Juda in which an "as is" clause was invalidated. Here, there is no evidence in the record that MarineMax was aware of, or attempted to affirmatively conceal, the existence of any defects in regard to the boat. See Harstan, 441 S.W.3d at 798 (detailing evidence seller knew structural damage not repaired at time of purchase but assured buyers all repairs required by City completed and City sought to condemn property subsequent to purchase); Nelson v. Najm, 127 S.W.3d 170, 175-76 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) ("as is" clause unenforceable where seller aware of toxic waste tank on property, knew it was illegal, and thwarted buyer's attempts to inspect property before purchase).
To the extent that Juda asserts that MarineMax engaged in fraudulent concealment or made fraudulent representations, such claims are barred by the merger clause in the Purchase Agreement, which "clearly and unequivocally expresses the parties' intent to disclaim reliance on the specific representations at issue" since "reliance is a necessary element of those claims." Harstan, Ltd. v. Si Kyu Kim, 441 S.W.3d 791, 798 (Tex. App.—El Paso 2014, no pet.). And Juda did not, in the trial court or in his briefing to this Court, assert that MarineMax obstructed his ability to inspect the boat.
We conclude that the "as is" clause is valid and Juda is not entitled to have it set aside. And this conclusion is further supported by the "paramount public policy" that courts do not "lightly . . . interfere with th[e] freedom of contract." Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 912 (Tex. 2007) (internal quotes omitted). Contracts entered into freely and voluntarily by people of full age and competent understanding "shall be held sacred and enforced by the Courts of justice." Id. Thus, we "have an obligation to construe a contract by the language contained in the document." El Paso Field Servs., L.P. v. MasTec N. Am., Inc., 389 S.W.3d 802, 811 (Tex. 2012). And the "[f]reedom of contract allows parties to," among other things, "allocate risk as they see fit." Id. at 812 (internal quotations omitted).
Accordingly, we hold that the trial court did not err in granting summary judgment in favor of MarineMax based on the "as is" clause in the Purchase Agreement. This clause defeats the causation element of Juda's claims for violations of the DTPA, negligence, and gross negligence. See Bynum, 129 S.W.3d at 788 (citing Jefferson Assocs., 896 S.W.2d at 161). Juda's breach-of-contract claim similarly fails on this ground because it is based on the same allegations regarding misrepresentations about the boat's warranty, condition, and subsequent repairs. Accordingly, we hold that the trial court did not err in granting MarineMax summary judgment.
We note that the "as is" clause is subject to "a service contract" entered into in connection with the sale or a subsequent written warranty, neither of which is addressed by Juda. Regardless, any extraneous oral agreement or representation is barred by the merger clause.
We overrule Juda's fifth issue. Having concluded that the "as is" clause is valid and disposes of all of Juda's claims, we need not address Juda's remaining issues. See TEX. R. APP. P. 47.1.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice Panel consists of Justices Jennings, Higley, and Massengale.