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Click here for the full text of this decision FACTS:Oat Note entered into a contract with M&L England to sell it a piece of land in a commercial subdivision to use as a gymnastics-training center. The contract required M&L to improve an existing low-water crossing on the property per city regulations. Oat Note was required to construct a road from the crossing to the highway across adjacent property Oat Note retained. Oat Note was to finish the road within 60 days of the crossing’s completion. M&L completed the crossing in March 1998. In July, Oat Note contracted with Ampro to sell four lots adjacent to the M&L lots. As Jack Sullivan, Oat Note’s president, owned two of the lots, two separate contracts were drawn up to replace the first. Though it was not part of the contract, the parties agreed that Ampro would assume the duty to build the connector road. Sullivan, however, had not yet started construction on the promised road within the 60-day timeframe, and he did not tell Ampro that M&L had finished the crossing, though he had knowledge that it was done. Sullivan testified that he believed that construction was not technically considered complete under the contract’s terms until he was given a copy of the city approval of the completed project, though he never asked M&L England for such. Later, when asked by a developer whether construction had been completed, triggering the clause, Sullivan answered that it had not because he had not received a copy of the city’s approval. The contract between Oat Note and M&L England does not explicitly state that notice must be given in such a manner. The developer’s principal, Steffen Waltz, met with an M&L representatives about the road, and because he wanted to include additional elements on the property, the road was not completed in June 1999. In May 1999, M&L sued Oat Note, Sullivan and Ampro, alleged breach of post-closing construction obligations. Sullivan was dropped as an individual defendant, and Ampro settled. Ampro then filed a cross-claim against Oat Note, and a claim against Sullivan for the entire settlement amount. Ampro alleged fraudulent and negligent misrepresentations. The defendants filed their own cross-complaint against Ampro for a declaratory judgment that the as-is provision of the contract governed the suit. A jury returned a verdict for Ampro for $11,666 in damages and $23,582 in attorneys’ fees. Oat Note appeals, arguing again that the as-is clause dictates the suit’s result, and contesting the award of attorneys’ fees on two grounds. HOLDING:Affirmed in part; reversed and rendered in part. The court conducts a legal and factual sufficiency of the evidence review. The court confirms the existence of an as-is clause in the contract between Oat Note and Ampro. Nonetheless, the court holds that as a matter of law, the as-is clause is not determinative in this case, because the harm alleged was not a result of factors that fall under the agreement. Ampro’s damages were caused by Sullivan’s misrepresentation of whether or not M&L believed the crossing was complete, not by a disagreement over the value of the property itself or any other assertion about the condition of the property conveyed. Thus, the as-is clause did not prevent Ampro from proving causation in its negligent misrepresentation claim. Since the as-is clause does not affect the negligent misrepresentation claim, that negligent misrepresentation harmed to Ampro because it led to M&L filing a lawsuit against the company. The harm was not that Ampro got less than it expected from the benefit of its bargain in the real estate deal. Accordingly, Oat Note’s actions were the legal cause of the harm, and so the damages meet the requirement that they stem from an injury independent of the relative benefit of the bargain itself. Damages were proper. The court, however, reverses the trial court on the award of attorneys’ fees. When a statute does not authorize the award of attorneys’ fees � and no such statute does, in this case � then the parties must have agreed to the award in their contract. The court finds that an original contract for the four lots did contemplate some attorneys’ fees, but that the original contract was superseded by the two separate contracts, and neither of them contained similar language on attorneys’ fees. In the two new contracts, attorneys’ fees were authorized only in the event that one party defaulted on the performance required, but there was no default in this case. OPINION:Puryear, J. Kidd, Patterson and Puryear, JJ.

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