law-release as defense to claim | settlement agreement | Rule 11 agreements | affirmative defenses
Release is an affirmative defense. Tex. R. Civ. P. 94. The effect of a release like the one at issue in
this case “is to relieve a party in advance of responsibility for its own negligence.” Dresser Indus., Inc.
v. Page Petroleum, Inc., 853 S.W.2d 505, 507 (Tex. 1993). “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.” Id. at 508. Because a pre-injury release of a party's “own
negligence is an extraordinary shifting of risk, [the Texas Supreme Court] has developed fair notice
requirements which apply to these types of agreements.” Id. To constitute fair notice, a release must
satisfy the requirements of conspicuousness and the express negligence rule. Storage & Processors,
Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004); Dresser, 853 S.W.2d at 508. Whether a provision
provides fair notice is a question of law for the courts. Dresser, 853 S.W.2d at 509.
A release agreement, valid on its face, is, until set aside, a complete bar to any action based on
matters covered in the release. Tamez v. SW Motor Transp., Inc., 155 S.W.3d 564, 569 (Tex. App.-
San Antonio 2004, no pet.). To release a claim effectively, the releasing instrument must "mention"
the claim to be released. Brady, 811 S.W.2d at 938. Any claims not "clearly within the subject matter"
of the release are not discharged, even if those claims exist when the release is executed. Id. It is not
necessary, however, for the parties to anticipate and explicitly identify every potential cause of action
relating to the subject matter of the release. Keck, Mahin & Cate v. Nat'l Union Fire Ins. Co., 20 S.W.
3d 692, 698 (Tex. 2000). Although releases generally contemplate claims existing at the time of
execution, a valid release may also encompass unknown claims and damages that develop in the
future. Id. While Appellees have the burden of proving the affirmative defense of release, Lopez has
the burden of proving that the release should be set aside. Sweeney v. Taco Bell, Inc., 824 S.W.2d
289, 291 (Tex. App.-Fort Worth 1992, writ denied).
Like any other agreement, a release is subject to the rules of construction governing contracts,
Williams, 789 S.W.2d at 264, including the tenet that courts will not rewrite agreements to insert
provisions parties could have included or to imply restraints for which they have not bargained.
Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 646 (Tex. 1996). When construing a
contract, courts must give effect to the true intentions of the parties as expressed in the written
instrument. Lenape Res. Corp. v. Tennessee Gas Pipeline Co., 925 S.W.2d 565, 574 (Tex. 1996).
The contract must be read as a whole rather than by isolating a certain phrase, sentence, or section
of the agreement. State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex. 1995). The
language in a contract is to be given its plain grammatical meaning unless doing so would defeat the
parties' intent. DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 101 (Tex. 1999).
Gallagher Headquarters Ranch Development, Ltd., No. 08-0773 (Tex. Feb. 12, 2010)(per curiam) (petition for
review in the Supreme Court put on hold pending submission of findings of fact requested from the trial court)
(scope and reach of release in settlement at issue)(petition abated, findings of fact requested from trial court,
scope of release pursuant to settlement at issue)
GALLAGHER HEADQUARTERS RANCH DEVELOPMENT, LTD., CHRIS HILL AND JULIE HOOPER v. CITY OF
SAN ANTONIO AND CITY PUBLIC SERVICE; from Bexar County; 4th district (04-07-00325-CV, 269 SW3d 628,
07-23-08) abatement order issued
[Note: The petition is abated and remanded to the trial court for findings of fact. The trial court shall submit its
findings to this Court no later than May 3, 2010. The parties may, within thirty days after the trial court's
findings are submitted, provide a supplementary brief to this Court.]
Per Curiam Opinion
(Justice Hecht not sitting)
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