Lead Opinion
In а bankruptcy adversary proceeding, Amco Energy, Inc., fik/a Capeo Offshore, Inc., and Capeo Energy, Inc. (together, “Capeo”) brought claims of fraud and various business torts against Ryder Scott Company, L.P. (“Ryder”), Tana Exploration Company, LLC (“Tana”), TRT Holdings, Inc. (“TRT”), and Tristone Capital, LLC (“Tristone”). The claims arise out of a transaction in which Capeo purchased from Tana certain oil and gas reserves located in the Gulf of Mexico. The bankruptcy court granted summary judgment in favor of Ryder, Tana, TRT, and Tristone and dismissed the claims. For the following reasons, we affirm the district court’s affirmance of the bankruptcy court’s ruling.
FACTS AND PROCEEDINGS
In early 2006, Tana decided to sell certain oil and gas properties located in the Gulf of Mexico (the “Properties”). Tana engaged Tristone to serve as its financial advisor and agent in marketing and sеlling the Properties. Tana also retained Ryder to review geological and engineering data, accounts, records, and other data in order to prepare a report estimating the reserves, future production, and income attributable to the Properties as of April 1, 2006 (the “April 1, 2006 Report”). Tristone utilized data provided by Tana, including well logs, histories, operations data, production, revenues, and the April 1, 2006 Report, to conduct its commercial evaluation of the Properties and prepare a Confidential Evaluation Brochure (“CEB”) for parties interested in placing a bid to purchase the Properties.
The CEB made clear that Tana and Tristone disclaimed any warranty as to the accuracy, completeness, or materiality of the information or data contained in the CEB. In рarticular, the CEB stated that, “[a]ny financial forecasts in this Evaluation Brochure and accompanying materials are based on several estimates and assumptions that are subject to uncertain economic and competitive pressures, including future business decisions that are subject to change.” The CEB urged prospective purchasers to conduct their own independent investigation and analysis of the Properties and the data set forth in the CEB.
In order to receive the information regarding the Properties, Capeo signed a confidentiality agreement on April 11, 2006. In addition to promising not to disclose information categorized as confidential, Capeo accepted Tana’s express and highlighted disclaimer of any responsibility for the accuracy of the information Capeo rеceived. Capeo also agreed that it would “rely solely on its own independent evaluation and analysis of the Information when deciding whether or not to submit a bid or offer, enter into a definitive agreement or consummate any Transaction covering one or more of the Properties.”
On May 3, 2006, Capeo submitted a successful bid to purchase the Properties.
Following Tana’s acceptance of Capco’s bid, the parties engaged in lengthy negotiations to draft a Purchase and Sale Agreement (“PSA”). The parties executed the PSA on June 2, 2006. The PSA specifically provided:
SELLER HEREBY EXPRESSLY NEGATES AND DISCLAIMS, AND BUYER HEREBY WAIVES, AND ACKNOWLEDGES THAT SELLER HAS NOT MADE, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, RELATING TO (a) THE ACCURACY, COMPLETENESS OR MATERIALITY OF ANY INFORMATION, DATA OR OTHER MATERIALS (WRITTEN OR VERBAL) NOW, HERETOFORE, OR HEREAFTER FURNISHED TO BUYER BY OR ON BEHALF OF SELLER OR (b) PRODUCTION RATES, RECOMPLETION OPPORTUNITIES, DECLINE RATES, GEOLOGICAL OR GEOPHYSICAL DATA OR INTERPRETATIONS, THE QUALITY, QUANTITY, RECOVERABILITY OR COST OF RECOVERY OF ANY HYDROCARBON RESERVES, ANY PRODUCT PRICING ASSUMPTIONS, OR THE ABILITY TO SELL OR MARKET ANY HYDROCARBONS AFTER CLOSING.
Furthermore, Capeo represented that in making the decision to enter the agreement and consummate the transactions contemplated, it had relied solely on the basis of its own independent due diligence investigation of the Properties and not on any representations or warranties outside of the PSA.
On June 4, 2006, Ilyas Chaudhary, an employee with Capeo, sent an e-mail to Pat Mclnturff, an employee with Ryder, informing Ryder that Capeo had executed a PSA to purchase the Properties. The email also stated, “Union Bank of California will tentatively fund this acquisition. They have requested a meeting in Houston with [Ryder] engineers to revisit Tana & Capeo properties. (I believe to determine the loan values).”
In preparation for the closing of the transaction scheduled for August 31, 2006, a closing statement was sent to Capeo on August 28, 2006, in accordance with the PSA. The closing statement provided Capeo with a list of adjustments to the purchase price, including a credit to Capeo for approximately $20 million in net production revenue that had accrued since April, 2006. The closing statement also included a footnote: “The August revenue (estimated at $6 million) will be forwarded upon receipt as well. The majority of the August revenue will be received the last week of September.”
Capco’s acquisition of the Properties closed on August 31, 2006.
Months later, in early 2007, Capeo hired Ryder to prepare an estimate of the remaining volumes of oil and gas reserves, future production, and income attributable to the Properties as of December 31, 2006 (the “December 31, 2006 Report”). Capeo claims that the December 31, 2006 Report indicated that reserves on a majority of the Properties were less than reflected on the earlier April 1, 2006 Report.
On April 7, 2008, Capeo filed for bankruptcy protection under Chapter 11. On August 28, 2008, Capeo filed an adversary proceeding in the U.S. Bankruptcy Court for the Southern District of Texas against Ryder, Tana, TRT, and Tristone seeking rescission of the bill of sale and damages. Capeo alleged that Ryder breached its professional obligations in its alleged contract with Capeo. Capeo also alleged that Tana, TRT, and Tristone made fraudulent representations regarding the Properties.
On June 13, 2011, the bankruptcy court granted summary judgment in favor of Ryder, Tana, TRT, and Tristone. The bankruptcy court ruled that Capeo had failed to raise a genuine issue of material fact with respect to whether Capco’s engagement of Ryder for the June 9, 2006 presentation was an implied contract creating a duty on Ryder to advise Capeo regarding the purchase of the Properties. Because Capeo conceded that all of its claims against Ryder were contingent upon a contract between Capeo and Ryder, the bankruptcy court dismissed Capco’s claims against Ryder. The bankruptcy court also ruled that Capeo had failed to raise a genuine issue of material fact with respect to whether it had relied on the alleged misrepresentations made by Tana, TRT, and Tristone. Accordingly, the bankruptcy court dismissed Capco’s remaining claims against Tаna, TRT, and Tristone.
In a written decision, the district court affirmed the judgment of the bankruptcy court. Amco Energy, Inc., fka, Capco Offshore, Inc., et al v. Tana Exploration Co., et al,
STANDARD OF REVIEW AND APPLICABLE LAW
We review the district court’s decision using the same standard of review that the district court applied to the bankruptcy court’s decisions. See Wells Fargo Bank of Texas N.A. v. Sommers (In re Amco Ins.),
A. Capco’s claims against Ryder
On appeal, Capeo argues that Capeo and Ryder entered into an implied contract whereby Ryder was to conduct an independent re-evaluation of the Properties and advise Capeo regarding its closing on the Properties, and that Ryder breached its professionаl responsibility and caused Capeo financial harm because Ryder’s representations at the June 9, 2006 meeting regarding the accuracy of the reserve estimates allegedly were erroneous. Capeo contends that its June 4, 2006 e-mail invitation to, and then the June 9, 2006 lender meeting with, Ryder representatives, along with its subsequent payment for the meeting, sufficiently demonstrate that it impliedly had contracted Ryder to advise it with respect to its earlier purchase but prior to closing. Capeo further contends that, based on such implied contract, it had a right to rely on representations made by Ryder regarding the accuracy of reserve estimates in its April 1, 2006 Report. Because Ryder’s reserve estimates allegedly were incorrect, Capeo claims Ryder committed professional negligence by representing that Capeo could rely on the figures.
Under Texas law, “[t]o establish liability for professional negligence, [a] plaintiff must show the existence of a duty, a breach of that duty, and damages arising from the breach.” Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co.,
“[A] binding contract requires ‘(1) an offer; (2) an acceptance in strict
The parties do not dispute that a contract existed between Capeo and Ryder for Ryder to appear at the June 9, 2006 meeting. The issue before this court is whether Capeo presented evidence to demonstrate a genuine issue of material fact about whether Ryder was contracted to provide an independent re-evaluation of the Properties and advice at the meeting regarding Capco’s decision to close on the Properties. The extent of Capco’s relevant summary judgment evidencе is: (1) Capco’s June 4, 2006 e-mail invitation to a June 9, 2006 meeting for representatives from Capeo, Ryder, and UBOC; (2) a July 13, 2006 bill of $2,032.50 for that meeting; and (3) an affidavit, dated August 20, 2010, from Ilyas Chaudhary (“Chaudhary”), the Capeo representative, attesting to his recollections of the meeting. As both lower courts held, none of these pieces of evidence indicates that the implied contract established for the June 9, 2006 meeting was for anything more than Ryder’s presentation of the report it previously had been retained by Tana to produce. Agreeing with the lower courts, we hold that nothing further agreed between them has been shown.
First, Capeo relies on the e-mail from Chaudhary to a Ryder representative advising that Capeo had executed the PSA to acquire the Properties and stating that a potential Capeo lender had requested a meeting with Ryder engineers to discuss the Tana and Capeo properties. In the email, Chaudhary added that he believed the purpose of the meeting was to determine loan values. There is no indication in the e-mail that Capeo was seeking an independent re-evaluation regarding the earlier purchase of the Properties. There is only a straightforward re-routed request from a potential Capeo lender to discuss the Tana properties, which were the subjects of a report Ryder previously had been retained to produce for Tana.
Next, Capeo relies on an invoice from Ryder to Capeo following the meeting “for services rendered in connection with the review of [Capco’s] reserves and the Tana acquisition reserves with Union Bank of California.” Again, there is no indication Capeo contracted Ryder to provide an independent re-evaluation of the Properties regarding closing the transaction.
Finally, Capeo relies on Chaudhary’s August 20, 2011 affidavit which describes the meeting that took place on June 9, 2006. The affidavit states that Basanko made a detailed presentation regarding the Properties. Chaudhary states also that Basanko reviewed the April 1, 2006 Report in detail and discussed the data
Chaudhary’s affidavit extensively describes his and Capco’s subjective expectations. Noticeably absent from Chau-dhary’s affidavit, however, is any indication that Ryder agreed to provide anything beyond a presentation of the April 1, 2006 Report it had prepared for Tana or that Ryder actually provided additional and new information regarding the Properties beyond the scope of the April 1, 2006 Report.
These circumstances demonstrate that Capeo did not contract for the original evaluation of the Properties, did not contract with Ryder independently to re-evaluate their previous Tana evaluation, and did not contract with Ryder for a new evaluation. These conclusions contradict Capco’s present contention that it paid Ryder $2,032.50 for an oral, one-day independent re-evaluation and updated warranty of the accuracy of the figures in the 184-page April 1, 2006 Report. As the courts below held, Capeo presents no evidence that Ryder agreed to such a duty.
A further examination of the Chaudhary affidavit confirms that, though descriptive of Chaudhary’s expectations, it never describes Ryder’s acceptance of a duty to reevaluate independently the Properties for Capeo. To extract such an engagement from Chaudhary’s affidavit,
Capeo argues that a general professional relationship existed between Capeo and Ryder sufficient to confer professional liability on Ryder. It is the specific nature of the professional relationship, however, that determines what duty Ryder owed to Capeo. See Fed. Sav. and Loan Ins. Corp.,
Absent evidence demonstrating a meeting of the minds between Capeo and Ryder specifically establishing a duty beyond presenting the contents of the December 31, 2005 Report and the April 1, 2006 Report at one meeting, Capeo cannot establish that Ryder owed a duty to Capeo indeрendently to re-evaluate the reserves of the Properties with the skill and care commensurate with the requirements of the profession to anyone but Tana, the party who originally contracted it to produce the April 1, 2006 Report.
B. Capco’s claims against Tana, TRT, and Tristone
Capeo claims that Tana committed actionable fraud when it sent Capeo a closing statement on August 28, 2006, in which Tana estimated that the revenue for August would be $6 million. Capeo claims that in reliance on this fraudulent representation, Capeo proceeded to close the acquisition to its detriment.
Under Texas law, one of the elements of a fraud claim is reliance. Fluorine On Call, Ltd. v. Fluorogas Ltd.,
In the instant case, at several рoints during the transactional process, Capeo signed agreements waiving its reliance on representations made by Tana, TRT, and Tristone. In particular, in signing the PSA, Capeo specifically accepted Tana’s disclaimer of any representation regarding the accuracy of any information “now, heretofore, or hereafter furnished to [Capeo] by or on behalf of [Tana].” Furthermore, Capeo agreed that in deciding to enter the PSA and consummate the acquisition, Capeo “relied solely on the basis of its own independent due diligence investigation of the Assets, upon the representations and warranties made in [the PSA], and not on any other representations or warranties of [Tana] or any other person or entity.” Even assuming that Tana’s estimate of August revenues was in fact false, the PSA provisions now prevent Capeo from asserting reliance on such representation.
Capeo argues that because Tana allegedly committed fraud in overestimating the August 2006 revenue, the waiver-of-reliance provision is unenforceable. In support of its argument, Capeo cites Lyn-Lea Travel Corp. v. Am. Airlines, Inc.,
Capeo also claims that Tana, TRT, and Tristone committed fraud when they “repeatedly invited Capeo to rely upon the April 1, 2006 Ryder Scott reserve report” prior to the execution of the PSA. Notwithstanding Capco’s characterization of Tana’s representations as “invitations to rely,”
CONCLUSION
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
Notes
. Capeo had previously contracted Ryder to perforin an analysis of Capco’s existing oil and gas reserves as of December 31, 2005 (the "December 31, 2005 Report”). The contract specified that: (1) the evaluation would encompass both Capco’s existing properties as well as рroperties Capeo contemplated acquiring at the time; (2) a preliminary evaluation would take over two months to complete; (3) the estimated cost of Ryder's services would be between $25,000 and $35,000, with $12,500 due immediately before Ryder’s work would commence; and (4) Capeo would furnish to Ryder several batches of data, including production and geological data.
. Ryder argues that this court lacks jurisdiction over this appeal because Capeo failed to
. The bankruptcy court dismissed all of Capco’s claims against Ryder, including claims of statutory fraud, common law fraud and fraudulent inducement, fraud by non-disclosure, negligent misrepresentation, and deceptive trade practices. On appeal, however, Capeo only addresses the dismissal in the context of its professional negligence claim. Therefore, we only address Capco’s arguments with respect to Capco’s professional nеgligence claim.
. Notably, even though Capeo requested, and the invoice reflects, discussion of both Capeo and Tana properties, Capeo asserts that the June 9, 2006 meeting itself was an implied contractual encounter to re-evaluate orally the Tana properties only, not the Capeo properties.
. Capeo argues that Ryder did, in fact, provide information outside the scope of the April 1, 2006 Report because Ryder was brought in to determine loan values. First, the proposition that an engineering firm would be contracted to provide financial lending advice to a bank is improbable. Second, there is no mention anywhere in Chaudhary’s affidavit that Ryder rendered such advice to UBOC at the meeting. Third, it is undisputed that no written assessment, financial or engineering, was generated fоr firsthand use on June 9, 2006, or later, to memorialize any independent findings offered at the meeting.
. This admission is supported by the relatively paltry amount Capeo paid for an alleged independent evaluation of the Properties. Capeo had previously engaged Ryder to provide an analysis of other properties in December, 2005, and the cost of that evaluation was estimated to be between $25,000 and $35,000, not inclusive of additional travel and other expenses. It is incongruous that six months later, Ryder agreed to provide an independent re-analysis of the Properties for $2,032.50. As the bankruptcy judge noted, it "defies reason and experience to assert that Plaintiffs paid $2,000 for an independent evaluation of value in a transaction to pay $83 million for mineral rights.” In addition to this implausibility, we note that an opрosite conclusion, inferring a professional re-evaluative duty from a presentation of an original analysis, prepared contractually for a different entity, might dissuade authors of professional reports from presenting their reports to anyone other than an original client.
. According to the "[pjenultimate paragraph of Page 7 of Tana’s prospectus and the definition of Unproved reserves included in the April 1st report, 1st paragraph”: "Tana et al assured any potential purchaser that Ryder Scott had downgraded any reserves where there could be questionable underlying data, such as uncertainties regarding reservoir limits and ultimate recoveries, to Probable and Possible reserves leaving only those without these uncertainties within the Proved category. This is a representation thаt the reserve estimates are conservative.”
. Again, the two-month old report is 184 pages long; a similar engagement between these same parties six months earlier cost Capeo between $25,000 and $35,000; and, as the bankruptcy court highlighted, one would have to assume that Capeo engaged Ryder for such a consequential re-evaluation of the Properties after executing the PSA and without contemplation of either a written contract or written product from the engagement.
. Capeo also raises the issue of "whether the Bankruptcy Court erred in finding that the acquisition of the Tana Properties by Capeo was completed on June 2, 2006.” Because the bankruptcy court’s finding does not affect our determination of whether a specific professional relationship existed between Cаpeo and Ryder, we do not address this finding. However, the post-PSA timing of the June 9, 2006 meeting does support the conclusion that this was not an engagement to conduct an independent re-evaluation of the Properties.
. The "invitations to rely” to which Capeo refers consist of three e-mail communications. The first is an e-mail from Tristone to Tana, dated April 30, 3006, confirming that, "[a]ll offers should be based on review of the [previously provided] information.” The second is an internal Tana e-mail, dated May 25, 2006, informing transaction team members that Capeo and Tana had discussed a variance between Tana’s actual production and the Ryder report forecast. The e-mail continues that Tana and Tristone explained to Capeo that Tana was "right on Ryder Scott’s production projection.” The third is an e-mаil from Tana to Capeo, dated May 26, 2006, stating that, “[t]here is no question that we are spot on or ahead of Ryder Scott's production forecast.”
Concurrence in Part
concurring and dissenting.
I concur in the panel’s majority opinion to the extent of its disposition of the issues regarding Tana, TRT, and Tristone. However, I respectfully part company with the disposition of the professional negligence claim that Capeo has asserted against Ryder Scott.
The majority opinion characterizes Capco’s contentions narrowly and does not accurately capture the arguments that Capeo has asserted in the district court and in this court. The majority opinion significantly contracts Capco’s argument by repeatedly stating that Capeo is contending that it retained Ryder Scott to conduct “an independent re-evaluation” of
Ryder Scott provided what Capeo retained it to provide. As Capeo alleged in the district court and in its briefing before our court, the principal author of the Ryder Scott Report, Olga Basanko, attended the June 9, 2006 meeting with Capeo and its potential lender. Basanko “went over the April 1, 2006 reserve report in detail, and presented a great deal of data underlying that report, including geologic maps, well logs, reports, and similar documents. Ms. Basanko stated that Ryder Scott’s rеserve estimates reflected in the April 1, 2006 [Report], were accurate and reliable. She further stated that Ryder Scott’s work was thorough and complete.” That this information was provided by Ryder Scott and that these representations were made is undisputed. This is not “an independent re-evaluation” of the Tana properties. This is an undertaking by Ryder Scott to provide its professional opinion to Capeo that the April 1, 2006 Report was accurate as of April 1, 2006, and was prepared in accordance with accepted standards. Ba-sanko supported her opinion regarding the accuracy of the Report, as of April 1, 2006, with detailed data. This is precisely the stuff of which a contract for professional services is made. At the risk of unnecessary repetition, the only way that Capeo could obtain the professional opinion of Ryder Scott for Capco’s direct consumption was to retain Ryder Scott directly. Capeo was otherwise foreclosed by the purchase agreement with Tana from relying on Ryder Scott’s professional opinions set forth in the April 1, 2006 Report.
The majority opinion’s fundamental misunderstanding of Capco’s claim is exhibited in the statement that
not only were Basanko’s representations within the scope of the April 1, 2006 Report, but such categorizations were already available to Capeo before the June 9, 2006 meeting. When comparing the April 1, 2006 Report and the June 9, 2006 presentation, there is no evidence that the presentation embellished the reserves report giving professional assurances beyond the data.1
In signing the purchase and sale agrеement on June 2, 2006, Capeo had expressly disclaimed reliance on any information that Tana provided regarding the properties that were the subject of the acquisition, including information that Ryder Scott had provided and Ryder Scott’s April 1, 2006 Report. At that point in time, Capeo had no relationship with Ryder Scott regarding the Tana properties and had no recourse against Ryder Scott if the Report was inaccurate. The April 1, 2006 Report was
The majority opinion summarily dismisses the undisputed evidence that other direct, material representations by a Ryder Scott employee were made to Capeo regarding the Tana properties after the June 9, 2006 meeting. Shortly after the June 9 meeting, the president of Capeo had lunch with Pat Mclnturff, a Ryder Scott engineer with whom Capeo had a pre-existing relatiоnship through the reserve report Ryder Scott had prepared analyzing Capco’s reserves. Mclnturff had been present at the June 6, 2006 meeting and heard Basanko’s presentation. At the lunch meeting with Mclnturff, Capco’s president indicated that he was “satisfied with the [Ryder Scott] presentation regarding the Properties,” and that Capeo was inclined to move forward with the acquisition. Mclnturff “indicated” to Capco’s president “that he believed that was a sound decision.” Mclnturff “made several positive comments ... regarding the Properties, including statements that he believed they were ‘good properties’ and that they would be a ‘good fit’ for Capeo.” This Ryder Scott employee “also stated that Ryder Scott’s estimate of the Properties’ proved reserves was conservative and that the Properties hаd significant ‘upside potential.’ ” The majority opinion sweeps this evidence aside by describing it as “statements uttered after the meeting by a Ryder employee positioning himself for a potential employment opportunity with Capeo.” Regardless of Mclnturffs possible personal motivation, he was an employee and agent of Ryder Scott when these statements were made. His statements are some evidence of professional opinions rendered by Ryder Scott within the scope of its engagement by Capeo.
Capco’s argument is and has consistently been that before it was even aware of the Tana properties, it had a professional relationship with Ryder Scott. Capeo retained Ryder Scott to prepare a report of Capco’s reserves as of Decеmber 31, 2005. Capeo felt “comfortable” with asking Ryder Scott directly for its professional opinion regarding the April 1, 2006 Report pertaining to Tana’s reserves because of this pre-existing relationship.
Capeo alleges that if Ryder Scott had not vouched for the accuracy and reliability of the April 1, 2006 Report, Capeo would not have closed the acquisition from Tana. Capeo asserts that it had the option of withdrawing from the transaction after it signed the purchase and sale agreement with Tana and before the August 31, 2006 closing, with forfeiture of its 10% deposit as its maximum possible loss. It alleges that its losses from proceeding to close the transaction were far greater.
After the Tana acquisition closed, Capeo again retained Ryder Scott in 2007 to prepare a reserve report as of December 31, 2006. Capeo alleges that it was this subsequent report that “showed less that [sic] $12 million in PDP reserves [for the properties acquired from Tana], a shocking decline of $35-$40 million, net of interim
The principal, though not exclusive, focus of the professional negligence claim is that the April 1, 2006 Report was “riddled with negligence.” Capeo did not retain Ryder Scott to prepare that report or even to re-evaluate that Report. Capeo retained Ryder Scott to vouch for the April 1, 2006 Report and to provide its professional opinion that the report hаd been prepared without negligence and in accordance with accepted principles. Ryder Scott billed Capeo for that opinion, and Capeo paid for it.
The majority opinion erects a straw man by again erroneously stating that Capeo contends it contracted for an independent re-evaluation of the Tana reserves. The majority opinion then dismantles the straw man in arguing that it is “incongruous” that Ryder Scott would agree “to provide an independent re-analysis of the Properties for $2032.50” when Capeo paid Ryder Scott between $25,000 and $35,000 for the report on Capco’s reserves as of December 31, 2005.
The only basis on which Ryder Scott sought summary judgment with respect to the professional negligence claim was lack of privity between Capeo and Ryder Scott. No one disputes that a contract with Capeo existed. Ryder Scott simply disputes the scope of that contract. With great respect to the majority, I cannot fathom how one can conclude that there was no contract for professional services regarding the April 1, 2006 Report and its reliability. For that reason, I must dissent.
. Ante at 282.
. Ante at 281 n.6.