Frontier Logistics, L.P. v. National Property Holdings, L.P.
417 S.W.3d 656
Tex. App.2013Background
- In 2008 the Plank Parties (National Property Holdings, Michael and Russell Plank) and the Frontier Parties entered a Settlement Agreement containing mutual releases and a single indemnity clause (Section V.C) in favor of the Plank Parties. Westergren was not a signatory.
- Three months later Westergren sued the Plank Parties asserting contract and tort claims; the Plank Parties demanded defense/indemnity from the Frontier Parties under the Settlement Agreement.
- Frontier refused; the Plank Parties asserted third-party indemnity claims against Frontier based solely on Section V.C. Frontier counterclaimed and moved for summary judgment that Plank take nothing.
- The trial court granted Plank’s summary judgment (except as to a $1M-payment claim) and denied Frontier’s motion in part; after severance the court awarded Plank damages and fees. Frontier appealed.
- The court of appeals held the Settlement Agreement unambiguous and concluded Westergren’s claims are not “covered by the release” because Westergren did not sign or receive a release and did not assert claims assigned by Frontier; therefore the indemnity provision does not apply.
- The court reversed the trial court, rendered judgment that Plank take nothing, declined to remand on Frontier’s unappealed counterclaims, and refused to entertain Plank’s conditional cross-point for lack of an appeal.
Issues
| Issue | Plaintiff's Argument (Plank) | Defendant's Argument (Frontier) | Held |
|---|---|---|---|
| Whether Westergren’s claims fall within the indemnity clause | Indemnity covers Westergren claims that are of the same description as claims released by Frontier (i.e., “covered by the release”) | Indemnity applies only if Westergren’s claims were asserted by/through Frontier or are actually covered by Frontier’s release in the agreement | Court: Indemnity does not apply; Westergren did not sign or assign released claims, so claims are not “covered by the release” (reversed) |
| Whether court may render judgment on Frontier’s cross-motion | N/A (Plank sought relief) | Both parties moved for summary judgment on same issue, so appellate court may render judgment on Frontier’s motion despite Feldman rule | Court: May review and render judgment for Frontier because both movants sought summary judgment on same issue |
| Whether parol evidence should be considered to construe indemnity | Parol evidence shows broader intent to cover Westergren’s claims | Agreement is unambiguous; parol evidence cannot vary plain meaning | Court: Agreement unambiguous; parol evidence not considered |
| Whether Plank’s conditional cross-point is reviewable without filing an appeal | Cross-point asks for more relief than trial court granted; Plank contends intervening decisions justify consideration | Appellee who did not file a notice of appeal may not seek greater relief than trial court granted | Court: Cannot consider cross-point — Plank did not file notice of appeal and seeks more favorable relief |
Key Cases Cited
- M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22 (Tex. 2000) (summary-judgment burden shifting rule)
- Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006) (de novo review and evidence-viewing rules on summary judgment)
- Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754 (Tex. 2007) (definition of genuine issue of material fact)
- American Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154 (Tex. 2003) (unenforceability of rewriting an unambiguous contract)
- Dresser Indus. v. Page Petroleum, 853 S.W.2d 505 (Tex. 1993) (release creates an affirmative defense; suit on released claim does not necessarily give rise to breach claim)
- FDIC v. Lenk, 361 S.W.3d 602 (Tex. 2012) (modification of Feldman rule allowing rendition when both parties move for summary judgment on same issue)
- Lubbock County v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580 (Tex. 2002) (appellee who does not file a notice of appeal may not seek to enlarge trial-court relief on appeal)