Case Information
*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 4/2/2015 9:38:58 AM CHRISTOPHER A. PRINE Clerk
*1 ACCEPTED 01-13-00782-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 4/2/2015 9:38:58 AM CHRISTOPHER PRINE
CLERK D AVID M. G UNN Direct (713) 951-6290 B OARD C ERTIFIED ♦ C IVIL A PPELLATE L AW dgunn@beckredden.com T EXAS B OARD OF L EGAL S PECIALIZATION April 2, 2015 Re: No. 01-13-00782-CV; Bandier Realty Partners, LLC and Switchback Ventures, LLC v. SSC Opportunity Partners, LLC and Douglas Britton Trial Court Cause No.: 2011-43194
Via Efiling Mr. Christopher H. Prine, Clerk First Court of Appeals 301 Fannin, Room 208 Houston, Texas 77002-2066 Dear Mr. Prine:
This case is set for submission on April 14, 2015. Appellants respectfully submit this letter to advise the Court of a recent decision. Please distribute copies of this letter to Justices Keyes, Bland and Massengale.
The decision is National Property Holdings, L.P. v. Westergren , 58 Tex. Sup. Ct. J. 204 (Jan. 9, 2015) (copy attached as Exhibit A). Like this case, it involves (1) a real estate dispute, (2) a release, and (3) an effort to avoid the release through allegations of fraudulent inducement.
The party who signed the release claimed that he signed it “in a hurry.” Id . at 206. But the Supreme Court held that there was no justifiable reliance: “Westergren chose not to read the release before he signed it in the presence of a notary and instead relied on Plank’s representations regarding its contents. We hold that, as a matter of law, that reliance was not justifiable.” Id. at 206.
The decision matters because Appellants have challenged justifiable reliance. Plaintiff SSC says that it signed the release without “time to review adequately or to suggest changes.” Br. of Appellees at 32; see id. at 33 n.20 (“extremely limited amount of time”). That argument is foreclosed by the Supreme Court’s Westergren decision. Westergren has become final, and the mandate has issued. Under Westergren , this Court should reverse and render. 1693.001/558252 *2 Mr. Christopher H. Prine, Clerk First Court of Appeals April 2, 2015 Page 2
Thank you for your courtesy and assistance. Respectfully submitted, /s/ David M. Gunn David M. Gunn Counsel for Appellants
DMG/ig Enclosure cc: All Counsel of Record ( Via Efiling ) 1693.001/558252
*3 Tab A *4 204 THETEXASSUPREMECOURTJOURNAL Vol. 58
NATIONAL PROPERTY HOLDINGS, as a matter of law because the record con
L.P., MICHAEL PLANK clusively establishes that he had a rea sonable opportunity to read the release
AND RUSSELL PLANK
before he signed it and elected not to do so . We also conclude that the oral side
vs. agreement did not satisfy the statute of frauds and that Westergren did not breach the mediated settlement agree
GORDON WESTERGREN
ment or the release by filing this suit. For these reasons, we reverse in part and af
No. 13-0801 firm in part the court of appeals' judgment and reinstate in part the trial court's take nothing judgment and award of costs.
From Harris County, Fourteenth The facts giving rise to the parties' Court of Appeals District. claims relate to a 190-acre tract of land in La Porte, Texas. The parties hotly dispute
(Opinion of the Court of Appeals, 409 the facts, but because we are reviewing S.W.3d 110.) the reversal of a judgment notwithstand ing a jury verdict in favor of Westergren, we "credit evidence favoring the jury ver
Under the prov1s10ns of Rule 59.1, dict if reasonable jurors could, and disre Texas Rules of Appellate procedure, the gard contrary evidence unless reasonable petition for review is granted and, without jurors could not." Tanner v. Nationwide hearing oral argument, the judgment of Mut. Fire Ins. Co., 289 S.W.3d 828, 830 the Court of Appeals is affirmed in part (Tex. 2009) (quoting Cent. Ready Mix and reversed in part and the judgment of Concrete Co., Inc. v. Islas, 228 S.W.3d 649, the trial court is reinstated. (Per Curiam 651 (Tex. 2007)). The evidence favoring opinion.) the jury verdict establishes that Wester gren was the first to enter into an option
For Petitioners: Haynes & Boone contract to purchase the highly desired LLP, Mark Ryan Trachtenberg, Michael J. property. When he discovered that the Mazzone and Polly Benton Graham, Hou owner had later entered into similar op ston, Texas. tion contracts with two other interested
buyers, he sued all three and filed a lis For Respondent: Provost Umphrey pendens against the property, preventing Law Firm LLP, John Andrew Cowan and any further development or sale (the Mark C. Sparks, Beaumont, Texas. Haynsworth litigation). The three defend ants appeared and filed counterclaims. Meanwhile, several developers, including National Property Holdings, L.P. (NPH), were also interested in acquiring the
PERCURIAM
property but could not pursue it while the Haynsworth litigation remained pending.
This dispute involves a mediated set In an apparent attempt to overcome that tlement agreement, an oral side agree obstacle, Russell Plank, who was NPH's consultant, contacted Westergren's attor ment, and a subsequent written release. A pivotal issue is whether Gordon Wester ney and offered to help pay Westergren's gren released his claims for breach of the attorney's fees in the Haynsworth litiga oral side agreement or whether, as he tion. When asked why NPH would do that, Plank replied: "[because] we're going insists and the jury found, he was fraudu lently induced into signing the release. On to be partners." Consistent with Plank's call, NPH and Plank each sent Wester that issue, we conclude that Westergren's fraudulent inducement defense must fail gren's attorney a $5,000 check. *5 THETEXASSUPREMECOURTJOURNAL 205
Vol. 58 When the lawsuit later went to medi viewed the release and discovered what he ation, Plank attended on behalf of NPH, had signed. When NPH, Plank, and although NPH was not a party to the suit. Plank's brother Michael (collectively, the The mediation Was successful: NPH Plank parties) refused to make any addi agreed to purchase the property, and all tional payments, Westergren filed this defendants agreed to release their rights suit against them, asserting claims for to the property and their counterclaims breach of the oral contract, breach of against Westergren. All of the parties lat partnership duties, common law and stat er memorialized the settlement in a writ utory fraud, and attorney's fees . The ten Mediated Settlement Agreement Plank parties asserted that W estergren (MSA), in which Westergren and the de had released all claims by signing the re fendants agreed to release any lis pendens lease and that the oral contract was unen and all claims asserted by and between forceable under the statute of frauds. the parties, including any cross-claims They also filed counterclaims for breach of and counterclaims, and NPH agreed to contract, asserting that Westergren purchase the property. Separately, in ex breached the MSA and the release by fil change for Westergren's agreement to ing this suit against them . settle the lawsuit, release the lis pendens,
The jury found in Westergren's favor and allow NPH to purchase the property, on all claims, although it also found that Plank orally promised W estergren that he the Plank parties' statutory and common would become a partner with Plank and law fraud caused Westergren "$0.00" his brother Michael, who was president of damages. On the Plank parties' motion, NPH's corporate general partner, and however, the trial court granted a judg would receive $1 million plus an interest ment notwithstanding the verdict and in the profits from NPH's development entered a take-nothing judgment as to all and future sale of the property (the oral parties, assessing costs against Wester contract). The MSA did not memorialize gren. Westergren appealed and the Plank the oral promises that Plank made to parties filed cross-appeals. With one jus Westergren. After Westergren released tice dissenting, the court of appeals con the lis pendens and the parties dismissed cluded, inter alia, that there was more the suit, NPH and an affiliated company than a scintilla of evidence to support the purchased the property. A few months jury's findings that (1) an oral contract later NPH sold 20 of the 190 acres. When existed between W estergren and Plank, Westergren asked for the promised $1 (2) Plank breached the oral contract, (3) million and a share of the profits, Plank NPH paid the $500,000 pursuant to the replied that they could only pay Wester oral contract (not as consideration for the gren $500,000 "right now." release), ( 4) this partial performance ex When Plank and Westergren later cepted the oral contract from the statute met, Plank presented a $500,000 check of frauds, (5) Plank fraudulently induced from NPH, and in return, W estergren Westergren to sign the release, and (6) signed a release. The title of the docu Westergren did not breach the MSA or the ment, stated in bold and underlined capi release by suing the Plank parties. Hav tal letters, read "AGREEMENT AND ing found in Westergren's favor on his RELEASE." The release stated that breach of contract claim, the court con W estergren agreed to relinquish any and cluded that it did not need to address his all interest in the property and all claims claims for common law and statutory against NPH, Michael Plank, and other fraud and for breach of partnership du listed parties in exchange for the total ties. The court awarded costs to Wester payment of $500,000. Without reading the gren and remanded the case for a new release, Westergren signed it in front of a trial on Westergren's claim for attorney's notary and accepted the check. Several fees. months later, after Westergren had not
Before this Court, the Plank parties received any additional payments, he re- contend that the evidence was legally in- *6 THETEXASSUPREMECOURTJOURNAL 206 Vol. 58 sufficient to support the jury's finding of the $1 million that Plank had promised in the oral contract; that Plank fraudulently induced Wester gren to sign the release, the release was
At the meeting, Plank never men therefore valid and extinguished all tioned that the document was a re claims under the oral contract, and the lease, and instead told Westergren jury's related findings are thus irrelevant that the release "was a receipt. It's and cannot support the judgment. To nothing. You don't have to worry overcome the jury's verdict, the Plank about it"; parties must show that there was no evi dence to support the jury's finding of
- Plank also told Westergren he fraudulent inducement, no reasonable would get "the other half' of the $1 jury could conclude otherwise, and thus million when "we get another the release was valid as a matter of law. building coming out of the Tanner, 289 S.W.3d at 830. ground"; Fraudulent inducement "is a particu lar species of fraud that arises only in the - W estergren did not read the re context of a contract." Haase v. Glazner, lease because he was "in a hurry" 62 S.W.3d 795, 798 (Tex. 2001). To prove and did not have his reading glasses with him; that Plank fraudulently induced him to sign the release, Westergren had to estab
- Although he wore a watch that lish that (1) Plank "made a material rep had a magnifying glass, which he resentation"; (2) Plank's "representation could have used to read the re was false and was either known to be false lease, he did not use it; when made or made without knowledge of its truth"; (3) Plank's "representation was
He did not ask Plank or the notary intended to be and was relied upon by the to read the release to him; and injured party"; and (4) Westergren's "inju ry complained of was caused by the reli
- Instead, he relied on Plank's ance." In re Int'l Profit Assocs., Inc., 274 statements and representations S.W.3d 672, 678 (Tex. 2009) (citing Am. and signed the release without Tobacco Co. v. Grinnell, 951 S.W.2d 420, reading it first. 436 (Tex. 1997)); Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 181 (Tex. 1997). The Plank parties argue that
Under the facts of this case, we agree there is no evidence to establish the with the Plank parties that Westergren fourth element in this case. Specifically, could not justifiably rely on Plank's they contend that no evidence supports a statements about the content of the re finding that Westergren's reliance on lease, which directly conflict with the con Plank's representations was "justifiable," tent of the release itself. On its face, the because the release's plain language con release's intent and effect is obvious and flicted with Plank's representations, and unambiguous. Consistent with its large, Westergren had ample opportunity to bolded, capitalized, and underlined title read the release and chose not to do so. ("AGREEMENT AND RELEASE"), and At trial, Westergren admitted that he utilizing bolded and capitalized key words did not read the release before he signed it within its text, the release provided that and accepted the $500,000 check. Specifi
WESTERGREN . . . in consider cally, he explained that: ation of the sum of FIVE HUN In a telephone conversation before DRED THOUSAND AND the meeting at which Plank deliv NO/lOOths DOLLARS ered the $500,000 check, Plank ($500.000.00), and other good and told Westergren that the check valuable consideration, the re would be payment of the first half ceipt of which of considerations
*7 Vol. 58 THETEXASSUPREMECOURTJOURNAL 207 being hereby acknowledged and Westergren chose not to read this release the adequacy of which considera before he signed it in the presence of a tions being hereby confessed, ... notary and instead relied on Plank's rep does hereby fully and uncondi resentations regarding its contents . We tionally RELEASE AND FOR hold that, as a matter oflaw, that reliance EVER RELINQUISH any and was not justifiable. all right, title, and/or interest .. .
It is well-established that "[t]he recip in or to (i) . . . the "Subject ient of a fraudulent misrepresentation is Property;" . .. (ii) [NPH and cer not justified in relying upon its truth if he tain affiliated companies] (collec knows that it is false or its falsity is obvi tively, the "Owning Entities"); ous to him." RESTATEMENT (SECOND) and (iii) any income, rent, profits, OF TORTS § 541 (1977). Thus, as Texas or other proceeds related to [the courts have repeatedly held, a party to a property or the Owning Entities] written contract cannot justifiably rely on . . . (collectively, the "Income oral misrepresentations regarding the and Proceeds") .... contract's unambiguous terms. See, e.g., Thigpen v. Locke, 363 S.W.2d 247, 251 (Tex. 1962) ("In an arm's-length transac
In addition, and for the same tion the defrauded party must exercise consideration, the receipt of ordinary care for the protection of his own which considerations being here interests . . .. [A] failure to exercise rea by acknowledged and the ade sonable diligence is not excused by mere quacy of which consideration be confidence in the honesty and integrity of ing hereby confessed, W estergren the other party.") (citation omitted). This . . . does hereby fully and uncon is particularly true when the party had a ditionally REMISE, RELEASE reasonable opportunity to review the writ
AND FOREVER DISCHARGE
ten agreement but failed to exercise ordi ... MICHAEL J. PLANK, THE nary care to do so. See Tex. & Pac. Ry. Co.
PLANK COMPANIES, INC.,
v. Poe, 115 S.W.2d 591, 592 (1938) (hold the Owning Entities, and [others] ing that evidence was legally insufficient .. . of and from any and all man to support a finding of fraud where party ner of action and actions, cause who relied on oral statement that release and causes of action, and all was receipt had an opportunity to read claims and demands whatsoever, the document which plainly identified ... which [Westergren] ... can, itself as a release); see also Thigpen, 363 shall or may have for, upon or by S.W.2d at 251. reason of any matter, cause [or] occurrence . . . proximately or The court of appeals concluded that remotely, from the beginning of Westergren did not have an adequate op the world to and through the day portunity to review the release. Under these facts, we disagree . Westergren's of the date of this release arising out of, relating to, or pertaining testimony conclusively established that he in any way, directly or indirectly, had ample opportunity to read the release to: (i) the Subject Property; but instead chose to rely solely on Plank's (ii) the Owning Entities; and representations because he was "in a hur (iii) the Income and Proceeds. ry" and did not have his reading glasses This release is intended to re with him. [1] Yet he acknowledged that he lease all liability described above of any character for damages of
*8 208 THETEXASSUPREMECOURTJOURNAL Vol. 58 It will not do for a man to enter could have used the magnifier on his watch or had someone read the document into a contract, and, when called to him, and no evidence indicates that upon to respond to its obligations, anyone prevented him from doing so. See to say that he did not read it 409 S.W.3d 128, 151 (Frost, J., dissenting) when he signed it, or did not (finding "no legal basis for the majority's know what it contained. If this conclusion" that Plank used "trickery or were permitted, contracts would artifice" to prevent Westergren from read not be worth the paper on which ing the release). Instead of excusing a they are written. But such is not party's failure to read a contract when the the law. A contractor must stand party has an opportunity to do so, the law by the words of his contract; and, presumes that the party knows and ac if he will not read what he signs, cepts the contract terms. See, e.g., Poe, he alone is responsible for his 115 S.W.2d at 592; Indem. Ins. Co. of N. omission. Am. v. W.L. Macatee & Sons, 101 S.W.2d 553, 556 (1937); cf In re Lyon Fin. Servs.,
Upton v. Tribilcock, 91 U.S. 45, 50 (1875); Inc., 257 S.W.3d 228, 232 (Tex. 2008); In see also Indem. Ins., 101 S.W.2d at 556 re Prudential Ins. Co. of Am., 148 S.W.3d ("One is presumed to intend what he does 124, 133-34 (Tex. 2004); Dresser Indus., or undertakes to do by the terms of a writ Inc. v. Page Petroleum, Inc., 853 S.W.2d ten instrument voluntarily signed by 505 (Tex. 1993). Here, Westergren's deci him."). We conclude that Westergren's sion not to read the release and instead to evidence was legally insufficient to sup rely on Plank's representations because port the jury's finding that he justifiably he did not have his glasses and was "in a relied on Plank's representations, and hurry" was not justifiable. thus constitutes no evidence of fraudulent As we have recently observed, it is not inducement to negate the release's validi the courts' role "to protect parties from ty. their own agreements." El Paso Field However, the parties also dispute the Servs., L.P. v. MasTec N. Am., Inc., 389 scope of the release. In particular, the jury S.W.3d 802, 810-11 (Tex. 2012). Thus, as found that the oral contract was an the United States Supreme Court ex agreement only between Westergren and plained long ago: Plank, in Plank's individual capacity, and Westergren argues that the release did not release any claims against Plank. We need not resolve this issue, however, be
whether Westergren could understand the Re cause we agree with Plank's alternative lease had he read it, we disagree that they argument that the oral contract is unen could support a conclusion that he had no rea forceable under the statute of frauds. Un sonable opportunity to read it. At a minimum, der the statute of frauds, "a contract for the language of the Release unambiguously the sale of real estate" is unenforceable made it clear that it was a "RELEASE," and unless it is in writing and signed by the that Westergren was releasing all claims to the property and against NPH and Michael Plank person to be charged. TEX. BUS. & COM. related to the property, and there is no basis to CODE § 26.01. Whether a contract comes conclude that he was incapable of understand
within the statute of frauds is a question ing that. In fact, Westergren's ability to under of law, which we review de novo. Dynegy, stand the Release is not disputed, and his own Inc. v. Yates, 422 S.W.3d 638, 642 (Tex. testimony establishes that he was a sophisti 2013). Westergren concedes that the con cated businessman who had personally partici tract at issue was for the sale of real es pated in many contractual transactions. Any tate and was not in writing or signed, but issue over whether he needed help to under he relies on the "partial performance ex stand it would be irrelevant when, by his own ception" to the statute of frauds. Under admission, he made no effort to read it.
this exception, he contends, an otherwise *9 Vol. 58 THE TEXAS SUPREME COURT JOURNAL 209 unenforceable oral contract becomes en must be to fulfill a specific agreement. If the evidence establishes that the party forceable in equity if one party partially performs its obligations and "denial of who performed the act that is alleged to enforcement would amount to a virtual be partial performance could have done so fraud." Westergren contends that Plank for some reason other than to fulfill obli partially performed his obligations under gations under the oral contract, the excep the oral contract by paying half of the tion is unavailable. promised $1 million payment, and thus
W estergren contends that Plank's the oral contract is enforceable in equity payment of $500,000 constitutes partial despite the statute of frauds. performance of the oral contract in which Without adopting Westergren's de Plank agreed to pay $1 million, and that scription of the "partial performance ex the payment is "unequivocally referable" ception,"2 we conclude that, even under only to that contract. [3] This is so, he con his theory, the exception does not apply tends, "because the release itself makes here . As argued by W estergren, one of the sense only in the context of an attempt to exception's requirements is that the per settle W estergren's claims based on the formance on which the party relies must (oral contract]," and "the jury was free to be "unequivocally referable to the agree conclude that the .only thing the release ment." Chevalier, 213 S.W.2d at 533 (em might plausibly have sought to compro phasis added) . In other words, the pur mise was the (oral contract] itself." We pose of the alleged acts of performance disagree. The fact that the payment was
made to "settle" and "compromise" Westergren's "claims based on the (oral [2] On the few occasions that this Court has contract]" does not mean it was made in discussed this equitable exception to the stat performance of obligations under that ute of frauds , we have made it clear that it contract. To the contrary, it establishes requires more than just one party's perfor that the payment was made to avoid per mance of some obligation under the alleged oral formance of the oral contract. On its face, contract. See, e.g., Chevalier v. Lane's, Inc., 213 S.W.2d 530, 533 (Tex. 1948) (noting that even the release states that Westergren's '"full performance,' in the sense of full payment agreement to release all claims against of the consideration by the purchaser, is held
the property, the "Owning Entities," and not to make the contract enforceable unless all "Income and Proceeds" was made "in accompanied by other circumstances, such as consideration of the sum of FIVE HUN change of possession and erection of valuable DRED THOUSAND AND NO/lOOths improvements"). For example, we explained DOLLARS ($500.000.00), and other good that "to relieve a parol sale of land from the and valuable consideration, the receipt of operation of the statute of frauds, three things which of considerations being hereby were necessary: 1. Payment of the considera tion, whether it be in money or services. 2. Pos acknowledged and the adequacy of which session by the vendee. And 3. The making by considerations being hereby confessed." the vendee of valuable and permanent im
Contrary to Westergren's arguments, the provements upon the land with the consent of payment cannot be unequivocally refera the vendor; or, without such improvements, the ble to the oral contract, because the re presence of such facts as would make the lease that Westergren signed expressly transaction a fraud upon the purchaser if it states that it was made in exchange for were not enforced. Payment of the considera Westergren's agreement to the release. tion, though it be a payment in full, is not suffi cient." Hooks v. Bridgewater, 229 S.W. 1114, 1116 (Tex. 1921). In light of Westergren's fail *10 THETEXASSUPREMECOURTJOURNAL
210 Vol. 58 Furthermore, the payment could not be promised to make Westergren a partner performance of the oral contract because with him and his brother is unenforceable it was made by NPH, which was not a under the statute of frauds. Westergren's party to the oral contract-but was a par claim for breach of partnership duties ty to the release. therefore must fail as well.
To find partial performance of the Finally, we turn to the Plank parties' oral contract, the court of appeals relied argument that the court of appeals erred upon Plank's oral representation that the in affirming the trial court's take-nothing payment was the first half of the $1 mil judgment on their counterclaims against lion owed under the oral contract. A party W estergren for breach of the release and cannot rely upon oral representations to the MSA. The Plank parties contend that satisfy the partial performance exception, a party who releases a claim and later however. Rather, the kind of performance files suit on that claim necessarily that justifies the exception to the statute breaches the release agreement. We disa of frauds is "performance which alone and gree. Although the Plank parties rely on a without the aid of words of promise is un number of cases to support their argu intelligible or at least extraordinary un ment, none of those cases reads a cove less as an incident of ownership, assured, nant not to sue into a release that does if not existing." Chevalier, 213 S.W.2d at not include such a promise. They also rely 533 (emphasis added). The statute of on one case in which a court stated that a frauds "unmistakably declares a policy covenant not to sue can be construed as a that parol testimony is too unreliable for release, arguing that the reverse must proof of certain types of agreement, and also be true. See Dicker v. Lomas & Net courts must give heed to that policy as tleton Fin. Corp., 576 S.W.2d 672, 675 well as to considerations of an equitable (Tex. Civ. App.-Texarkana 1978, writ character." Id . Therefore, Westergren refd n.r.e.) (noting that "an agreement not cannot rely on Plank's oral representa to sue can be construed as a release"). tions to support a finding that the pay Westergren, in turn, argues that the re ment was unequivocally referable to the lease provides only an affirmative defense oral contract. We hold that there is noth because it provides only that it "may be ing in the nature of these acts that sup pleaded as an absolute and final bar to ports a jury finding of partial performance any or all suit" and does not include an to except the oral contract from the stat express or implied covenant not to sue or ute of frauds . to indemnify the released parties. We
must review the MSA and release lan In summary, we conclude that there guage to determine whether either is no evidence to support the jury's find agreement includes a contractual obliga ings that Plank fraudulently induced tion not to sue. Westergren to sign the release, or that the oral contract is excepted from the statute The intent of the MSA was to settle of frauds. the suit between Westergren and the oth
er parties to the initial litigation, who are We now turn to Westergren's tort not before the Court in this case. We find claims for common law fraud, statutory no language in the MSA in which Wester fraud, and breach of partnership duties. gren agreed not to sue the Plank parties. Although the jury found in favor of In fact, the agreement contemplates that Westergren on the liability questions for the parties may bring suit by providing his common law and statutory fraud that the parties "may not recover attor claims, the jury awarded him no damages ney's fees or costs in any litigation for either claim. Westergren did not ap brought to construe or enforce this agree peal those findings. He therefore cannot ment. Otherwise, if unsuccessful, the pre recover damages on his fraud claims. With vailing party or parties shall be entitled to respect to his partnership claim, we have recover reasonable attorney's fees and held that the oral contract in which Plank expenses." This provision indicates that a *11 Vol. 58 THE TEX.AS SUPREME COURT JOURNAL 211 suit may be brought, even though the ties' counterclaims for breach of contract agreement is in effect, and in no way sug and attorney's fees against Westergren. gests that filing a suit concerning the TEX. R. APP. P. 59.1 MSA's released claims results in a breach. Therefore, Westergren's claims did not
Opinion Delivered: January 9, 2015 breach the MSA. We also find that the release is un ambiguous as to this point. The parties intended the release "to release all liabil ity described" within the agreement. Like the MSA, it includes no language barring Westergren from bringing suit or stating that he would breach the release by doing so. To the contrary, this agreement has a provision stating essentially that should a future suit be brought, the release may be pleaded as an absolute bar to the suit-in other words, it provides the parties with an affirmative defense. [4] See TEX. R. CIV. P. 94 (listing affirmative defenses, includ ing release). Although the release pro vides an affirmative defense to future suits, we cannot construe it as including a covenant not to sue where, in fact, the plain language does not bar future suits. Just as Westergren is bound to the actual language of the release, so are the Plank parties. The court of appeals, therefore, did not err in affirming the trial court's judgment based on the jury verdict in fa vor of W estergren on the Plank parties' claims for breach of the MSA and release.
We grant the Plank parties' petition for review, and without hearing oral ar gument, we (1) reverse the court of ap peals' judgment as to Westergren's claim for breach of the oral contract, Wester gren's claim for attorney's fees, and the trial court's allocation of court costs, (2) reinstate the trial court's judgment that W estergren take nothing on his claims for breach of the oral contract and for attor ney's fees and the trial court's taxing of court costs against Westergren, and (3) affirm the court of appeals' take-nothing judgment on Westergren's partnership and fraud claims and on the Plank par-
NOTES
[1] The court of appeals thought it relevant any type or nature ... with re that Plank knew that Westergren had an at spect to the matters released torney and had communicated with him but did above. not involve him in the drafting of the Release or send him a copy. 409 S.W.3d at 126-28. While these facts might be relevant to the issue of
[3] Westergren also contends that he fully per ure to establish that Plank's $500,000 payment formed the agreement by releasing the /is pen was "unequivocally referable" to the oral con dens and giving up his contractual right to the tract, we need not and do not provide a com property. Like the $500,000 payment, these plete explanation of all of the partial perfor actions are not unequivocally referable to the mance exception's requirements here. oral contract where the MSA explicitly requires these acts by Westergren.
[4] The release states that it "may be pleaded as an absolute and final bar to any or all suit or suits pending or which may hereafter be filed or prosecuted."