This is one of those rare cases in which we must overturn a civil jury verdict for insufficiency of the evidence. We do not do so nonchalantly. We have sifted through the record, searching, both at the direction of the parties and on our own, for evidence to sustain the jury’s verdict in favor of the plaintiff. Concluding that there is no evidence to support plaintiffs claim of fraudulent inducement, we REVERSE the judgment.
I. BACKGROUND
Harold Boggan owned 51% of Interprint, Inc., a supplier of computers and computer equipment with offices in Dallas and Houston. Through a listing broker, Boggan attempted to locate a company to buy or merge with Interprint. The broker located several potential buyers, including Data Systems Network Corporation (“Data Systems”). Boggan first met Data Systems’s President, Michael Grieves, in late 1987, and they met and spoke again on several occasions during the fall of 1988. According to Boggan, during these early communications between Boggan/Interprint and Grieves/Data Systems, Grieves told Bog-gan that entrepreneur Warren Avis (founder of Avis Rent-A-Car), was intimately involved in Data Systems, that Grieves had a close relationship with Avis, and that Data Systems’ purchase of Interprint would allow Boggan to become “part of the [Warren Avis] fold.”
In January of 1989, Grieves travelled to Texas to examine Interprint’s operations. Boggan conveyed to Grieves exactly what Boggan expected to receive from Data Systems if it wanted to buy Interprint: (1) two times the net book value of the company; (2) an employment agreement compensating Boggan $60,000 a year; (3) repayment of a $60,000 loan to Interprint guaranteed by Boggan; (4) health insurance coverage for Boggan; (5) a company car for Boggan; (6) accrued vacation time for Boggan; (7) fair and equitable treatment of Interprint employees; (8) assumption of Interprint’s 3-year lease of a building leased from a Boggan partnership. At the end of the meeting, Grieves told Boggan that “I think we have a deal,” but said that he would have to “run it by” the Data Systems Board and get a formal proposal drafted by Data Systems’s lawyer. Grieves specifically advised Boggan to retain counsel, but Grieves indicated that his own attorney would do the bulk of the paperwork, while Boggan’s attorney would simply assist in the preparation of schedules and ancillary documents.
In February, Grieves sent Boggan a Letter of Intent drafted by Data Systems’ attorney, which indicated that the letter was “a proposal and not a final agreement. It is subject to final negotiations and approval by [Data Systems’] counsel, our bank, and our board of directors.” One of the more critical provisions in the Letter of Intent involved the inventory and accounts receivables. The letter stated:
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The term “obsolete” was not defined in the letter. Boggan testified that based on his discussions with Grieves, he understood this “set-off” provision to refer to “non-current” inventory as reflected on Inter-print’s balance sheet: roughly $170,000 worth. (
*150 Since [Data Systems] is only interested in acquiring viable assets, [Data Systems] would want the option of returning any accounts receivables or inventory after 120 days to Interprint that was found to be bad; that is, accounts receivable that was non-collectable or inventory that was obsolete. This would result in a commensurate reduction in book value. (11 R. 113 )
*151 During April and early May, Data Systems circulated four different drafts of a proposed asset purchase agreement to Bog-gan. Although the purchase price remained subject to certain set-off rights in all drafts, the set-off provision itself changed substantially between the third draft (dated May 1, 1989) and fourth draft (dated May 2, 1989). In all of the drafts except the fourth draft (dated May 2,1989), Data Systems could reduce, or set-off, book value only for “obsolete” inventory as stated in the Letter of Intent. The term “obsolete” was not defined in the drafts, nor was any reference made to the term “non-current” inventory. In the fourth draft (dated May 2, 1992), the set-off provision allowed Data Systems to set-off the value of all Interprint inventory, not sold or returned to vendors within 120 days after closing, against book value. That change was marked so that Boggan and his adviser's would take note of it. Indeed; Boggan read the changed provision and discussed it with his accountant, who discussed it with Boggan’s attorney. Neither Boggan nor his advisers discussed this change with Grieves, however. The set-off provision in the fourth draft was incorporated into a final Asset Purchase Agreement, executed by the parties on May 4. The parties also entered into an Employment Agreement.
Boggan did not sell or return to vendors most of the Interprint inventory with the 120 days following closing. Data Systems set off the unsold and unreturned inventory against the balance of the purchase price and offered to give Boggan the remaining inventory that had not yet been sold. Boggan sued Data Systems alleging multiple causes of action against Data Systems and the Grieveses. 1 The Defendants counterclaimed for breach of the Asset Purchase Agreement and Employment Agreement, violations of the Texas Deceptive Trade Practices Act, and declaratory relief.
The district court entered partial summary judgment for the defendants on several of Boggan’s claims, directed a verdict in their favor on others, and submitted the rest of the claims to a jury. The jury returned a verdict in favor of Boggan on his claim for fraudulent inducement, awarding compensatory damages in the amount of $783,076.43 against Data Systems and Grieves. Based on the jury’s finding that Data Systems and Grieves acted “willfully and maliciously” in fraudulently inducing Boggan and Interprint to enter the Asset Purchase Agreement and Employment Agreement, the jury awarded punitive damages in the amount of $1.5 million against Data Systems and $1 million against Grieves. The district court denied the Defendants’ motion for judgment notwithstanding the verdict or, alternatively, motion for a new trial and entered judgment in accordance with verdict. Data Systems and Grieves appealed; Boggan did not.
II. DISCUSSION
Under Texas law, a plaintiff must establish six elements to prove actionable common law fraud: (1) the making of a material representation; (2) that was false;
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(3) that, when the speaker made it, the speaker knew was false or made it recklessly without knowledge of its truth and as a positive assertion; (4) that the speaker made it with the intent that it should be acted on by the other party; (5) that the other party acted in reliance on it; and, (6) that the other party suffered injury thereby.
Trenholm v. Ratcliff,
On appeal, this Court employs the same standard that the district court used in ruling on the defendants’ motions: The court “must review the evidence in the light and with all reasonable inferences most favorable to the party opposing the directed verdict or judgment notwithstanding the verdict.”
Fruge v. Penrod Drilling Co.,
On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable [persons] could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded [persons] in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury-
A.
At the outset we observe that plaintiff’s primary theory during trial, and the
only
theory considered by the jury under the charge, was that Grieves made affirmative misstatements of fact. The court instructed the jury that the essential elements of the fraudulent inducement claim requires proof that the defendants made a false material representation that consisted of a positive untrue statement of material fact: The representation must have been false and material in the sense that it related to a matter of some importance or significance. The plaintiffs objected to this instruction, requesting that the court include language instructing the jury that omissions or concealments of fact can also constitute misrepresentations of material fact. The court did not submit the fraudulent inducement claim to the jury under these theories, and the plaintiffs did not cross-appeal. Because “theories not before the jury ... may not provide the basis for upholding the jury verdict,”
Charles Woods Television Corp. v. Capital Cities/ ABC, Inc.,
*153 B.
Boggan contends that Grieves made a whole host of affirmative misrepresentations of material fact, including but not limited to the discussions pertaining to the set-off provision. Specifically, Boggan submits that Grieves misrepresented:
the special interest and involvement of Warren Avis, the benefits that Boggan and Interprint would experience as an “Avis Information Systems Company” and the Avis “fold,” ... Boggan’s future role and power as general manager, “in charge” of sales management in Dallas, his limited role in the actual sale of “old” inventory, the portion of the inventory the setoff would be applied to, Boggan’s coverage under health insurance, the use of his car, use of accrued vacation time, reimbursement for vacation time of former Interprint employees... . 2
Appellee Boggan’s Brief at 25-26. Boggan is correct in arguing that evidence of even a single misrepresentation of material fact will suffice to sustain the verdict. To Bog-gan’s misfortune, we have found none.
Boggan recognizes that the verbal exchange at the January meeting did not constitute a binding agreement between the parties. He so testified. The parties were well aware that the final terms of the deal would be incorporated into a writing. It is well settled that the negotiations and discussions leading up to the writing cannot displace the terms of the written agreement.
Turner v. Johnson & Johnson,
Boggan does not claim that he was duped into signing a final agreement that purported to be the agreement reached but in fact was something else. 3 Boggan, with the assistance of counsel and an accountant, reviewed the final draft of the agreement and signed it. Whatever discussions the parties had entered into up to that point concerning Boggan’s future role in the company, his coverage under health insurance, the use of a car, use of accrued vacation time, reimbursement for vacation time of former Interprint employees, and the like, were governed by the explicit terms of the Asset Purchase Agreement. Any statements made by Grieves regarding thosé terms during the negotiation stages of the deal were expressions of intent, not assertions of fact. Their omission from the final draft does not render Grieves’ earlier assurances misrepresentations of fact. To hold otherwise would turn contract law on its head and vitiate the parol evidence rule.
As far as the set-off provision, the language in the. final draft unequivocally states that the set-off would apply to
all
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inventory. To the extent that Boggan understood, based on his discussions with Grieves, that the set-off would only apply to “non-current” inventory, his reliance on Grieves’ comments were misplaced: if anything, Grieves’ statements amounted to expressions of opinion, perhaps intent, but certainly not fact.
See Fina Supply Inc. v. Abilene Nat’l Bank,
If Boggan had wanted to insure that the set-off provision would apply only to “non-current” inventory, as he understood that term, he should have incorporated his definition of “non-current” into the Asset Purchase Agreement. Significantly, that term — “non-current” inventory — was derived from Interprint’s balance sheet, with which Boggan was intimately more familiar than Grieves. If nothing else, Boggan, a successful, experienced, and sagacious businessman, should not have signed the final agreement which explicitly provided for a set-off against all inventory not sold within 120 days. The terms of the set-off provision could not have been clearer.
C.
Recognizing the frailty of the affirmative misrepresentation theory, Boggan contends in the alternative that Grieves’ nondisclosures and concealments of material facts support the verdict.
See Fiest v. Roesler,
III. CONCLUSION
Our search through the record, now complete, has turned up no evidence supporting the verdict in this case. We must reverse the judgment, therefore, and direct the district court to enter a take-nothing judgment in favor of the defendants.
REVERSED.
Notes
. Actually, Boggan and Boggan Corporation, f/k/a Interprint sued. We refer to them collectively as "Boggan.” In an amended complaint, Boggan added H & R Joint Venture as a plaintiff, and Grieves and Grieves’ spouse as defendants.
. The list continues, but these alleged misrepresentations are not representations at all:
accusing him of the theft of inventory, repudiation of the Interprint lease with a balance of $124,600 owed to Boggan his realty partner, fictitious charge-backs for inventory, fictitious chargebacks for so called "unrecorded liability contracts,” and refusing to reimburse Bog-gan for the cost of a trip taken to Detroit at Grieves' behest.
Appellee Boggan's Brief at 26.
. Thus, those Texas cases finding fraud when a party induces another party who is "excusably ignorant” of the nature of the contractual obligations into a written contract that does not reflect the parties’ true agreement are inappo-site.
E.g., Ellison v. Knapek,
.There are several exceptions to the rule that opinions are not actionable as fraudulent misrepresentations of fact: (1) when "a party having superior knowledge ... takes advantage of another's ignorance of the law to deceive him by studied concealment or misrepresentation;” (2) "where there is a fiduciary or confidential relationship of trust between the parties;” (3) where the "misrepresentations involving a point of law ... were intended and understood as [misrepresentations of fact];"
Fina,
.
See Peckham v. Johnson,
.
See International Sec. Life Ins. Co. v. Finch,
. He also wanted his employees to be treated fairly and the acquiring company to assume the 3-year building lease.