law-release as affirmative defense |
In general, a release surrenders legal rights or obligations between the parties to an
agreement. See Cox v. Robison, 105 Tex. 426, 150 S.W. 1149, 1155 (Tex.1912). It
operates to extinguish the claim or cause of action as effectively as would a prior
judgment between the parties and is an absolute bar to any right of action on the
released matter. See generally Hart v. Traders & General Ins. Co., 189 S.W.2d 493, 494
(Tex.1945). For these reasons, a release is expressly designated as an affirmative
defense. Tex.R.Civ.P. 94.
A release is a type of contract and is construed according to the rules governing contracts generally.
Baty v. ProTech Ins. Agency, 63 S.W.3d 841, 848 (Tex. App.--Houston [14th Dist.] 2001, pet. denied).
Our primary concern when construing a written contract is to ascertain the true intent of the parties, as
expressed in the contract itself. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). In determining
intent, we must look to the contract, not what the parties allegedly meant. Union Pacific R.R. v. Novus
Int'l, Inc., 113 S.W.3d 418, 421 (Tex. App.--Houston [1st Dist.] 2003, pet. denied). An unambiguous
contract will be enforced as written. David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex. 2008).
Parol evidence may not be introduced to create an ambiguity or to alter the intent of the parties as
expressed in the instrument. Id.
Safeco Surety v. J.P. Southwest Concrete, Inc. (Tex.App.- Houston [1st Dist.] Apr. 2, 2009)(Alcala)
(effect of failure to disclose evidence) (effect of failure to disclose evidence, failure to plead properly, trial by
consent, release as affirmative defense, lost profit damages)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR
FURTHER PROCEEDINGS: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Hanks
01-07-00904-CV Safeco Surety and C.A. Walker, Inc. v. J.P. Southwest Concrete, Inc.
Appeal from 189th District Court of Harris County
Trial Court Judge: Hon. William R. Burke. Jr.
The release signed by Pantle on behalf of J.P. acknowledges payment of $84,756.35 "and other good and
valuable consideration." It then states,
Subcontractor waives, releases, relinquishes and discharges all known and unknown causes of action,
including, but not limited to those arising out of contract, by statute, in tort or otherwise, and waives, releases,
relinquishes and agrees to discharge any suits, debts, accounts, bonds, contracts, promises, damages, liens,
encumbrances, judgments, claims and demands whatsoever, in law or equity, which are against the Contractor .
. . that the Subcontractor now has or might hereinafter obtain that relates directly or indirectly to the aforesaid
relationship, Contract, and/or Project.
Subcontractor and I hereby acknowledge that Subcontractor has previously been paid from Contractor
$57,349.25 for the above named job, and this payment constitutes full payment for the work performed to date
and any and all change orders or claims for additional work performed. . . .
J.P. challenges the release by pointing to Pantle's testimony and letters written by Walker that state that the
March 16, 2005 payment is only for work done in January 2005. The release itself, however, plainly states that
the $84,756.35 "payment constitutes full payment for the work performed to date and any and all change orders
or claims for additional work performed." The testimony and letters are parol evidence that cannot properly be
considered to change the written terms of the release. See David J. Sacks, P.C., 266 S.W.3d at 451.
J.P. also asserts "the numbers at the top of right 0105, is the date January 2005." The portion of the release
that J.P. points to states, "Date: 03/16/2005 Payment Request: 0105R." The date of the release clearly is March
16, 2005, which is also the date Pantle signed the release. We conclude that by signing the release, J.P.
acknowledged it was fully paid for all work it had performed as of March 16, 2005.
We sustain Walker's first issue to the extent that the trial court would have erred by including any amounts for
work done before March 16, 2005 because J.P. released its claim for those amounts.
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