Jane Doe, Individually and as Next Friend for Sally Doe, a Minor v. Texas Association of School Boards, Inc. and Texas Association of School Boards Risk Management Fund

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-08-266-CV

JANE DOE, INDIVIDUALLY AND APPELLANT
AS NEXT FRIEND FOR SALLY DOE,
A MINOR

V.

TEXAS ASSOCIATION OF
SCHOOL BOARDS, INC. AND
TEXAS ASSOCIATION OF SCHOOL
BOARDS RISK MANAGEMENT FUND APPELLEES

------------

FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

------------

OPINION

------------

Introduction

In one issue, appellant Jane Doe, individually and as next friend for her

daughter Sally Doe, a minor, appeals the trial court’s order granting the

summary judgment motions of appellees Texas Association of School Boards,
Inc. (TASB, Inc.) and Texas Association of School Boards Risk Management

Fund (TASB RMF). We affirm.

Background Facts

Appellant alleges the following facts. While John Paul Emenhiser was

employed with the Denton Independent School District (DISD) as a bus driver,

he befriended and took pictures of young girls assigned to his route, including

Sally Doe. 1 In 2000, while Sally was nine years old, Emenhiser sexually

assaulted her. In 2001, using information and authority he had gained through

his position as Sally’s bus driver, 2 Emenhiser again sexually assaulted her while

she was alone in her home.

In December 2003, appellant filed suit against Emenhiser, seeking

compensatory and exemplary damages for Emenhiser’s assaults against Sally.

Later, appellant amended her suit to add DISD as a defendant.3 On February

1
… Because of the sensitive nature of this case, fictitious names will be
used throughout this opinion to protect the identities of the victimized parties.
See Patterson v. State, 46 S.W.3d 294, 298 n.1 (Tex. App.—Fort Worth 2001,
no pet.).
2
… Specifically, appellant alleged that because of Emenhiser’s
employment with DISD, he had access to the location of students’ residences,
their parents’ work schedules, and their siblings’ probable whereabouts.
3
… Appellant contended that DISD entrusted Emenhiser with information
and that DISD had knowledge of Emenhiser’s “unnatural interest in both
children and pornography.”

2
14, 2007, after appellant settled her claims against DISD, the trial court

severed those claims from her remaining claims against Emenhiser. On June

28, 2007, appellant filed her third amended petition, which maintained her

claims against Emenhiser and joined appellees 4 (who provided liability coverage

for DISD) as defendants. The suit against appellees sought a declaration 5 that

Emenhiser is an insured under the coverage appellees provided to DISD in a

Sexual Misconduct Claims Endorsement to an interlocal participation agreement;

therefore, appellees are obligated to defend him and satisfy any judgment

obtained against him. In July 2007, appellees filed their answer to appellant’s

claims. In November 2007, appellees filed a traditional motion for summary

judgment against appellant.

The evidence attached to appellees’ motion established that DISD entered

into an interlocal participation agreement with appellees so that appellees would

4
… TASB, Inc. is the program administrator of TASB RMF. While both
TASB, Inc. and TASB RMF are appellees in this appeal, the only issue presented
by appellant is whether the trial court erred by granting TASB RMF’s motions
for summary judgment. In her brief and at oral argument, appellant admitted
that summary judgment was properly granted to TASB, Inc. because it was not
a party to the interlocal participation agreement with DISD. Because of this
admission, and because our review of the evidence confirms that TASB, Inc.
was not a party to the agreement, we will affirm the summary judgment
entered in TASB, Inc.’s behalf. For simplicity, however, in this opinion we will
refer to TASB, Inc. and TASB RMF collectively as “appellees.”
5
… Appellant filed the suit under the Uniform Declaratory Judgments Act.
See Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001–.011 (Vernon 2008).

3
provide coverage and a defense for several types of DISD’s property or casualty

risks. In connection with the agreement, appellees issued a Sexual Misconduct

Claims Endorsement that outlined particular situations in which coverage would

apply (up to a $5,000,000 limit) when DISD or its employees were accused of

sexual misconduct with a student. The relevant parts of the Sexual Misconduct

Claims Endorsement state that coverage applied to

1. Claims made by or on behalf of students or by employees
against a Program Participant [DISD] or any . . . employee . . . of
such Program Participant . . . arising out of allegations of sexual
misconduct, harassment, molestation or abuse; and exclusions
relative to sexual misconduct do not apply. All Exclusions that
would otherwise apply remain applicable.

This coverage shall not apply when a Program Participant or any
. . . employee . . . has allegedly engaged in any acts . . . that
violate any criminal law where such alleged criminal acts . . . have
resulted in the filing or obtaining of a criminal charge and
information or indictment against any Program Participant or any
. . . employee . . . of such Program Participant.

....

2. Claims made by or on behalf of students . . . against a
Program Participant or any . . . employee . . . arising out of
allegations that a Program Participant . . . negligently employed,
trained, investigated, reported, supervised or retained a person
engaged in sexual misconduct, harassment, molestation, or abuse.
Exclusions relative to sexual misconduct do not apply.
All Exclusions that would otherwise apply remain applicable.

3. Claims based on any allegation that a Program Participant or
any . . . employee . . . engaged in a practice, custom, or policy that
constitutes a violation of a civil right that caused or contributed to

4
 a claim of sexual misconduct. Exclusions relative to sexual
misconduct do not apply. All Exclusions that would otherwise
apply remain applicable.

Based on the language of the endorsement, appellees’ motion contended

that they had no obligation to defend Emenhiser because he engaged in criminal

acts for which the policy excluded coverage. 6 The motion also contended that

appellees were entitled to contractual indemnity from appellant based on

language contained in the settlement agreement between appellant and DISD. 7

The settlement agreement (titled as a “Compromise Settlement Agreement,

Release of All Claims and Indemnity Agreement”) stated that

• the “incidents made the basis” of the lawsuit were Emenhiser’s
assaults of Sally;

• the “Releasing Parties” comprised appellant (individually and as
Sally’s next friend);

• the “Released Parties” were DISD and its “employees and
representatives, except that [Emenhiser was] specifically
excluded”;

• appellant discharged the Released Parties from all present or future
claims related to all injuries “directly or indirectly attributable to the

6
… The summary judgment evidence established that a Denton County
jury convicted Emenhiser of indecency with a child, aggravated sexual assault,
and sexual performance by a child; the jury sentenced him to ninety-nine years’
confinement on the aggravated sexual assault charge.
7
… Other grounds for summary judgment asserted by appellees to the trial
court, related to appellant’s standing and an alleged statutory prohibition of
appellant’s suit, have been abandoned on appeal.

5
 incident made the basis” of the lawsuit, “whether asserted in the
lawsuit or not”;

• the release applied to all “firms, corporations, [or] entities with
whom [DISD has] been, [is] now, or may hereafter be affiliated”;

• in exchange for the release and settlement of “disputed claims,”
appellees agreed to pay appellant and Sally a substantial sum of
money over many years.

The settlement agreement also contained a section titled “INDEMNIFICATION.” 8

On the day they filed their summary judgment motion against appellant,

appellees amended their answer to assert (1) the defenses included in their

motion, (2) a counterclaim for a declaratory judgment (along with attorney’s

fees and costs) against appellant based on the indemnification language in the

settlement agreement, and (3) a cross-claim against Emenhiser for a declaration

that he was not insured under the interlocal participation agreement between

appellees and DISD. Appellant filed a response to appellees’ summary judgment

motion, arguing that the claims against Emenhiser were covered under

paragraphs two and three of the Sexual Misconduct Claims Endorsement and

that the indemnification clause of the settlement agreement with DISD was

ambiguous, did not apply to personal injury claims because such claims were

8
… The full contents of this section are set forth below.

6
not specifically delineated, and could not apply to Sally because appellant had

no authority to enter into such a settlement agreement on Sally’s behalf.

After appellees filed a reply to appellant’s summary judgment response,

the trial court granted appellees’ motion.9 Appellees then filed a motion for

summary judgment as to their cross-claim against Emenhiser (who had filed a

pro se answer to that claim); 10 the trial court granted this motion as well, and

it ordered that the coverage document issued by TASB RMF to DISD “does not

provide any coverage for the claims asserted against [Emenhiser] by

[appellant].” In May 2008, appellant obtained a judgment against Emenhiser

for $5,000,000. Appellant then filed notice of her appeal of the trial court’s

decision to grant both of appellees’ summary judgment motions.

9
… Appellant contends that appellees did not prevail on their indemnity
counterclaim through summary judgment because in its final judgment, the trial
court denied appellees’ claim for attorney’s fees. However, the record reflects
that the trial court granted the motion for summary judgment that contained
arguments regarding appellees’ indemnity counterclaim. And though the trial
court did not specify that it granted summary judgment on the indemnity basis,
when a trial court grants a general summary judgment, we must affirm the
judgment if any of the theories that the prevailing party advanced at trial are
meritorious. See Morris v. JTM Materials, Inc., 78 S.W.3d 28, 36 (Tex.
App.—Fort Worth 2002, no pet.).
10
… Appellees attached the same summary judgment evidence to this
motion as to their previous summary judgment motion.

7
 The Propriety of the Summary Judgment

In her sole issue, appellant contends that the trial court improperly

granted appellees’ motions for summary judgment. She argues that the Sexual

Misconduct Claims Endorsement requires appellees to provide coverage for

Emenhiser and that her claims against appellees are not excluded by the

indemnity provisions of the settlement agreement.

Standard of review

In a summary judgment case, the issue on appeal is whether the movant

met the summary judgment burden by establishing that no genuine issue of

material fact exists and that the movant is entitled to judgment as a matter of

law. Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211,

215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671,

678 (Tex. 1979). The burden of proof is on the movant, and all doubts about

the existence of a genuine issue of material fact are resolved against the

movant. See Sw. Elec. Power Co., 73 S.W.3d at 215.

Summary judgment evidence that favors the movant’s position will not

be considered unless it is uncontroverted. Great Am. Reserve Ins. Co. v. San

Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). However, we

must consider whether reasonable and fair-minded jurors could differ in their

conclusions in light of all of the evidence presented. See Wal-Mart Stores, Inc.

8
v. Spates, 186 S.W.3d 566, 568 (Tex. 2006); City of Keller v. Wilson, 168

S.W.3d 802, 822–24 (Tex. 2005). Summary judgment is proper when parties

do not dispute the relevant facts. Havlen v. McDougall, 22 S.W.3d 343, 345

(Tex. 2000).

The criteria of contract interpretation

The parties do not dispute evidentiary facts related to the Sexual

Misconduct Claims Endorsement or the settlement agreement; rather, they

differ in their interpretation of these documents. Insurance policies and

settlement agreements are both contracts, and such documents are governed

by the same rules of construction applicable to all contracts. See Gray v. Nash,

259 S.W.3d 286, 289 (Tex. App.—Fort Worth 2008, pet. denied); Safeco Ins.

Co. of Am. v. Gaubert, 829 S.W.2d 274, 281 (Tex. App.—Dallas 1992, writ

denied); see also Webb v. Lawson-Avila Constr., Inc., 911 S.W.2d 457, 461

(Tex. App.—San Antonio 1995, writ dism’d) (noting, however, that indemnity

agreements are strictly construed in favor of the indemnitor).

When construing a written contract, our primary concern is to ascertain

the true intent of the parties as expressed in the instrument. NP Anderson

Cotton Exch., L.P. v. Potter, 230 S.W.3d 457, 463 (Tex. App.—Fort Worth

2007, no pet.); see Republic Nat’l Bank of Dallas v. Nat’l Bankers Life Ins. Co.,

427 S.W.2d 76, 79–80 (Tex. Civ. App.—Dallas 1968, writ ref’d n.r.e.) (noting

9
that courts should not consider the “intention which the parties may have had,

but failed to express in the instrument”). In doing so, we must examine and

consider the entire contract in an effort to harmonize and give effect to all

provisions so that none are rendered meaningless. Potter, 230 S.W.3d at 463;

see J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003).

Contractual provisions should be considered with reference to the entire

instrument; no single provision should control. Webster, 128 S.W.3d at 229;

Potter, 230 S.W.3d at 463. Words in a contract must carry their ordinary,

generally accepted meaning unless the contract itself shows that the terms

have been used in a technical or different sense. See Ramsay v. Md. Am. Gen.

Ins. Co., 533 S.W.2d 344, 346 (Tex. 1976). In construing a contract, we may

not rewrite it nor add to its language. Am. Mfrs. Mut. Ins. Co. v. Schaefer,

124 S.W.3d 154, 162 (Tex. 2003). Also, we must weigh that parties to a

contract

are considered masters of their own choices. They are entitled to
select what terms and provisions to include in a contract before
executing it. And, in so choosing, each is entitled to rely upon the
words selected to demarcate their respective obligations and rights.
In short, the parties strike the deal they choose to strike and, thus,
voluntarily bind themselves in the manner they choose.

Cross Timbers Oil Co. v. Exxon Corp., 22 S.W.3d 24, 26 (Tex. App.—Amarillo

2000, no pet.).

10
 A contract is unambiguous if it can be given a definite legal meaning; if it

is subject to two or more reasonable interpretations, it is ambiguous, creating

a fact issue on the parties’ intent. Webster, 128 S.W.3d at 229; Lopez v.

Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861 (Tex. 2000).

However, lack of clarity does not necessarily create an ambiguity, and neither

does a mere disagreement between the parties. See Universal Health Servs.,

Inc. v. Renaissance Women’s Group, P.A., 121 S.W.3d 742, 746 (Tex. 2003)

(adding that whether “a contract is ambiguous is a question of law that must

be decided by examining the contract as a whole in light of the circumstances

present when the contract was entered”); see also City of The Colony v. N.

Tex. Mun. Water Dist., 272 S.W.3d 699, 722 (Tex. App.—Fort Worth 2008,

no pet. h.) (explaining that when “the meaning of a contract is unambiguous,

a party’s construction is immaterial”). When a contract contains an ambiguity,

the granting of a motion for summary judgment is improper because the

interpretation of the instrument becomes a fact issue. Coker v. Coker, 650

S.W.2d 391, 394 (Tex. 1983). Conversely, the interpretation of an

unambiguous contract is a matter of law to be determined by the trial court.

Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 423 (Tex. 2000).

11
Analysis

We must strictly construe the parties’ settlement agreement in favor of

appellant using the normal rules of contract interpretation detailed above.

See id.; Webb, 911 S.W.2d at 461. The settlement agreement in dispute

stated, in pertinent part,

3.01 It is expressly understood and agreed that the Releasing
Parties have paid . . . all expenses . . . of any kid [sic] or character,
past, present and future, alleged to be incurred as a result of the
. . . incidents made the basis of this lawsuit . . . and the Releasing
Parties hereby agree to indemnify, defend, and hold harmless the
Released Parties and TASB RMF from any and all claims or causes
of action for the recovery of any expenses . . . . Such
indemnification shall include, but is not limited to, claims arising
from . . . any partial or sole intentional or negligent act or omission
of any or all of the Released Parties and TASB RMF, and further
includes the costs of defending against such claims . . . . Such
right of indemnity . . . shall exist in favor of the Released Parties
and TASB RMF . . . .

3.02 For the consideration set forth above, the Releasing Parties
hereby agree to fully indemnify, defend and hold harmless each of
the Released Parties and TASB RMF from any and all claims . . .
and causes of action of whatsoever nature or character, at law or
in equity, past, present, or future, which may have been or which
may hereafter be asserted by any person, firm, corporation, or
other entity whomsoever claiming by, through, or on behalf of the
Releasing Parties, arising from the incident made the basis of this
lawsuit. Such indemnification shall include but is not limited to,
claims arising from, or amounts recovered based on claims arising
out of any . . . negligent act or omission of any or all of the
Released Parties and TASB RMF . . . . [Emphasis added.]

12
 Appellant contends that though TASB RMF is specifically designated as

a party to enjoy indemnity, this language does not require her (or Sally) to

indemnify and hold harmless TASB RMF as to the claims she asserted against

Emenhiser because (1) appellees are not among the “Released Parties” in the

settlement agreement and therefore they do not have standing to enforce it;

(2) the language is ambiguous in that it refers to the “incident” made the basis

of her lawsuit, while her lawsuit described more than one assault and legal

theories other than assault; (3) the language specifically excludes the claims

against Emenhiser from those released, and it does not apply to Sally’s direct

claims; (4) the language does not encompass personal injury claims; and

(5) Jane Doe does not have authority to enter any settlement or indemnification

agreement that would bind Sally.

Appellees have standing to enforce the indemnity provision

In her reply brief, appellant contends that because TASB RMF was not a

signing party to the settlement agreement, it has no standing to enforce the

indemnity provision contained in it. A third party may recover on a contract

made between other parties if the parties intended to secure a benefit to that

third party and the parties entered into the contract directly for the third party’s

benefit. Stine v. Stewart, 80 S.W.3d 586, 589 (Tex. 2002); see S. Tex. Water

Auth. v. Lomas, 223 S.W.3d 304, 306 (Tex. 2007); Haire v. Nathan Watson

13
Co., 221 S.W.3d 293, 301 (Tex. App.—Fort Worth 2007, no pet.). To qualify

as an intended third-party beneficiary, a party may show that it is a ”creditor”

beneficiary of the contract. Stine, 80 S.W.3d at 589. An agreement benefits

a “creditor” beneficiary if, under the agreement, performance will come to him

in satisfaction of a legal duty (such as a contractual obligation or other legally

enforceable commitment). Id. A third-party beneficiary does not have to show

that the signatories executed the contract solely to benefit it as a

noncontracting party. Id. at 591.

We conclude that the settlement agreement signals the signatories’

intention to confer a benefit on TASB RMF as a creditor beneficiary because it

(1) specifically states that TASB RMF shall be indemnified along with the

Released Parties, (2) indicates (as recited in section 3.02 of the agreement) that

such a designation was conferred because TASB RMF provided consideration

by paying substantial sums to appellant (as acknowledged received by appellant

in section 1.04), and (3) particularly mentions TASB RMF in several other parts

of the agreement and obligates TASB RMF to abide by several of the

agreement’s terms, including payments already made and to be made in the

future. See Stine, 80 S.W.3d at 589–91; see also Marine Creek Partners, Ltd.

v. Caldwell, 926 S.W.2d 793, 795 (Tex. App.—Fort Worth 1996, no writ)

(explaining that status as a third-party beneficiary may be created when the

14
“obligation to the third party is clearly and fully spelled out”). Because we

conclude that the settlement agreement conferred standing on TASB RMF as

a third-party beneficiary to the agreement, we hold that TASB RMF’s exclusion

as a signatory 11 to the agreement is inconsequential. See City of Alton v.

Sharyland W ater Supply Corp., 145 S.W.3d 673, 682 (Tex. App.—Corpus

Christi 2004, no pet.) (explaining that “[t]hird-party beneficiaries to a contract

acquire the same rights and standing to enforce the contract as those held by

one of the contracting parties”). Thus, summary judgment was not precluded

on this ground.

The settlement agreement is not ambiguous

Next, we cannot agree with appellant that the indemnity provisions in the

settlement agreement are ambiguous because paragraph 3.02 referred to the

“incident made the basis of this lawsuit” while her pleading on file at the time

of the agreement alleged multiple assaults and various legal theories.

The recitals portion of the settlement agreement (paragraph A) dictates that the

11
… Though not a signatory, TASB RMF is a named party to the
agreement because it is specifically included in the “RECITALS AND
DEFINITIONS” portion of the agreement. We note than an argument could be
made that TASB RMF was also a Released Party in the settlement agreement
because through paragraph 1.02, the release applied to all “firms, corporations,
and entities with whom the Released Parties . . . are now . . . affiliated.”
However, we need not resolve this appeal on that basis.

15
“incidents made the basis of this lawsuit” are the “assaults of [Sally Doe], a

minor.” Apart from pluralizing “incident,” this exact language is used to

describe the indemnified claims in section 3.02.

We conclude and hold that the agreement is not ambiguous. The striking

similarity is sufficient to show the parties’ intent as expressed in the instrument

to include in section 3.02 all claims from any of Emenhiser’s assaults against

Sally, rather than one assault or the other and rather than some claims but not

others.12 Thus, we conclude that the singular term “incident” was nothing more

than a typographical error. See Batjet, Inc. v. Jackson, 161 S.W.3d 242, 247

(Tex. App.—Texarkana 2005, no pet.) (holding that the use of the word “client”

instead of “clients” in a rule 11 agreement letter was not dispositive of the

intention that multiple defendants be bound to a settlement agreement); City

of Galveston v. Galveston Mun. Police Ass’n, 57 S.W.3d 532, 539 (Tex.

App.—Houston [14th Dist.] 2001, pet. denied) (noting that typographical

mistakes must “yield to the well-established doctrine that written contracts will

12
… In an attempt to limit the breadth of section 3.02 so that it would not
cover her assault claims against Emenhiser, appellant contends in her brief that
“reasonable minds could determine that ‘the incident’ referenced the civil rights
violations which stemmed from [DISD’s] failure to protect [a]ppellant from
sexual harassment.” However, this assertion is belied by the language
contained earlier in section 3.02 indicating that indemnity applied to “causes of
action of whatsoever nature or character.”

16
be construed according to the intention of the parties, notwithstanding errors

and omissions, by perusing the entire document”).

Our conclusion is strengthened by the fact that section 1.01 of the

settlement agreement (under a portion of the agreement titled “RELEASE AND

DISCHARGE”) also refers to the singular “incident made the basis of this

lawsuit” when describing the claims released in favor of DISD. If we were to

hold that “incident” made section 3.01 ambiguous, we would also have to

conclude that the same term is ambiguous in section 1.01. We cannot do so

because we cannot conclude that reasonable minds would disagree as to

whether, in a document partly titled “RELEASE OF ALL CLAIMS,” the parties

intended to discharge DISD from claims arising from both of the sexual assaults

or only one of the two. See Webster, 128 S.W.3d at 229.

For these reasons, we reject appellant’s argument that the settlement

agreement is ambiguous because it refers to the “incident” rather than the

“incidents” made the basis of her lawsuit. Thus, summary judgment was not

prohibited on this ground.

17
 While the settlement agreement excludes Emenhiser from those released,
it includes appellees as those indemnified; also, it applies to Sally’s direct
claims, if any

Appellant next contends that because the settlement agreement excluded

Emenhiser as a released party in three of its provisions, 13 appellant could not

have intended to indemnify appellees for the claims against him. Specifically,

appellant contends that there

would be no reason to exclude Mr. Emenhiser from the release in
three separate provisions if the parties intended to bar [Sally’s]
claims against Emenhiser because her mother agreed to indemnify
the school district and TASB RMF for them. There would be no
reason to indemnify TASB RMF for [a]ppellant’s claims against Mr.
Emenhiser but not release TASB RMF.

However, Emenhiser’s exclusion in those three provisions is not made

surplusage by the indemnity language, as appellant implies, because though the

language grants appellees indemnity for such claims, it does not bar the claims

that appellant continued to pursue against Emenhiser himself. In other words,

the settlement agreement allowed appellant to obtain her $5,000,000 judgment

against Emenhiser, but the indemnity provision precluded appellees’

responsibility to pay that third-party judgment. We do not believe that section

13
… For instance, the settlement agreement stated that in “consideration
for the payments described herein, the Releasing Parties hereby release . . . the
Released Parties, SAVE AND EXCEPT THOSE CLAIMS AGAINST JOHN PAUL
EMENHISER, from any and all claims . . . .” Another provision specifically
excluded Emenhiser from the “Released Parties.”

18
3.02 (as set forth above) could reasonably be interpreted differently, because

it granted TASB RMF indemnity for all claims brought by or through appellant

that arose out of Emenhiser’s assaults. See Webster, 128 S.W.3d at 229.

Further, TASB RMF’s inclusion as an indemnified party but not a Released Party

makes sense because at the time the parties signed the settlement agreement,

TASB RMF had not yet been sued by appellant; appellant waited to sue TASB

RMF until after she signed the settlement agreement and received money from

TASB RMF.

Appellant also contends that the indemnity language in the settlement

agreement cannot be interpreted to apply to claims in which “Sally Doe, a

minor, had a direct (not derivative) claim” against Emenhiser. However, the

language contains no limitation regarding either the direct or derivative nature

of Sally’s claims; rather, it applies to all claims brought by, through, or on

behalf of appellant individually or as Sally’s next friend.

For these reasons, we cannot agree with appellant that the trial court’s

summary judgment was improper on these bases.

The indemnity agreement encompasses the assault claims against
Emenhiser

Appellant also asserts that the indemnity language in favor of TASB RMF

does not cover the claims against Emenhiser because the language fails to

19
expressly mention personal injuries. In support of this contention, appellant

relies on Ard v. Gemini Exploration Co., 894 S.W.2d 11, 15 (Tex.

App.—Houston [14th Dist.] 1994, writ denied). In Ard, the court examined

indemnity language which stated in part,

Indemnity. Contractor [RRS] agrees to indemnify and hold the
Company [Resolve], including its affiliates, directors, officers,
shareholders, employees, successors and assigns (collectively, the
“Company Indemnified Parties”), harmless from all suits, actions,
demands, damages, costs, expenses, or claims or any character,
type or description, including the expenses of litigation, court
costs, and reasonable attorney fees brought or made for or on
account of the employment relationship between contractor and its
employees, including, without limitation, all suits, actions, claims,
demands, damages, costs, or expenses brought by contractor’s
employees under the applicable workers’ compensation statute and
other claims by its personnel for violation of civil rights, hiring
practices and other employment laws.

Id. at 14 (emphasis added). The court held that the “failure to specifically list

personal injury as a covered claim preclude[d] indemnity for the personal injury

claim.” Id. at 15.

However, the indemnity provision in this case is distinguishable from the

one in Ard. In Ard, the provision limited itself to claims based on employment

matters (as emphasized above). Section 3.02 of the settlement agreement

contains no such limitation; rather, the indemnity provisions extend to “causes

of action of whatsoever nature or character.” Moreover, section 2.02 of the

20
settlement agreement states that the required payments of TASB RMF to

appellant “constitute damages on account of personal physical injuries.”

Further, by qualifying its relation to the “incident made the basis of this

lawsuit,” a phrase (apart from singular tense) defined in the terms of the

settlement agreement to specifically mean the “assaults of [Sally],” section

3.02 directly connects to the sole legal theory—assault—to which appellant

obtained her judgment against Emenhiser. Because of this, we conclude that

whether section 3.02 more broadly provides indemnification for personal injuries

other than those related to assault is irrelevant.

Therefore, the trial court also did not err by granting summary judgment

on this ground.

Appellant had authority to bind Sally to the indemnification
agreement

Finally, appellant asserts that even if she was bound to the indemnity

provisions to the extent that appellees have asserted, Sally cannot be bound to

the indemnity provisions because as a minor, Sally is legally disabled and was

incompetent to enter the agreement. For this proposition, appellant cites rule

of civil procedure 44 and Vandewater v. American General Fire & Casualty Co.,

890 S.W.2d 811, 814 (Tex. App.—Austin 1994), rev’d, 907 S.W.2d 491 (Tex.

1995). In reviewing the Austin Court of Appeals’ decision in Vandewater, the

21
Texas Supreme Court considered “whether a trial court could properly acquire

jurisdiction over a minor defendant and render a final judgment binding the

minor’s interests when the minor’s mother answered as the minor’s next

friend.” Vandewater, 907 S.W.2d at 491. The supreme court noted that the

Austin court had focused on the plaintiff’s failure “to personally serve [the

minor] with process” and that the Austin court had therefore concluded that the

“trial court never acquired personal jurisdiction” over him. Id. at 492. Rather

than approving of such a narrow focus, the supreme court determined that an

appellate court

should evaluate whether the minor’s interests have been properly
protected and whether a deficiency in notice or due process has
been shown to determine whether a trial court has obtained
personal jurisdiction over a minor. In this case, the answer of [the
mother] in her capacity as [the minor’s] next friend was sufficient
indication that [the minor’s] legal representative knew about the
proceedings and could therefore defend against them.
No deficiencies in notice or due process are raised by the record on
these facts.

Id. at 492–93 (citations omitted); see Lehmann v. Har-Con Corp., 76 S.W.3d

555, 565 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (noting that a

“parent has the right to represent the child in legal action and to make other

decisions of substantial legal significance concerning the child” and that

“a parent prosecuting in the dual capacity of next friend of a minor and as a

plaintiff in her own right may settle a case, provided her interest is not preferred

22
to the detriment of the minor”); see also Tex. R. Civ. P. 44 (stating that minors

may “sue and be represented by ‘next friend’” and that the next friend may

with “the approval of the court compromise suits and agree to judgments”).

Like in Vandewater, we conclude that Sally’s interests in entering the

settlement agreement’s indemnity provision and in defending against appellees’

declaratory judgment counterclaim were properly protected because (1) Jane

initiated the original suit against appellees on behalf of Sally, bringing Sally

within the trial court’s jurisdiction, (2) Jane signed the settlement agreement

as Sally’s next friend and filed responses to appellees’ counterclaim and their

motion for summary judgment14 in that same capacity, (3) Sally’s guardian ad

litem also signed the settlement agreement on her behalf, and (4) appellant

notified the trial court of the settlement, which the trial court specifically

approved.15

Further, we note that appellant’s position as to this issue is inconsistent

with the benefit she obtained from the settlement agreement. In essence, she

14
… Appellant has cited no conflict between her and Sally in defending
against appellees’ summary judgment motion that would have required the trial
court to appoint a guardian ad litem for that purpose.
15
… In approving the settlement, the trial court recited that Sally’s
guardian ad litem thoroughly considered the settlement and that he opined that
its terms were fair and reasonable. The trial court found the settlement to be
in Sally’s best interest; it therefore ordered that it be “binding and conclusive
in all respects.”

23
contends that she had the authority to assert and settle claims on behalf of

Sally and her while recovering large amounts of money by doing so, but that

she did not have the authority to provide the consideration required to secure

that benefit. Quasi-estoppel precludes a party from asserting, to another’s

disadvantage, a right inconsistent with a position previously taken; it “forbids

a party from accepting the benefits of a transaction . . . and then subsequently

taking an inconsistent position to avoid corresponding obligations or effects.”

Brooks v. Brooks, 257 S.W.3d 418, 423 (Tex. App.—Fort Worth 2008, pet.

denied). Based on quasi-estoppel and the other authority cited above, we reject

the assertion that Sally is not bound to the settlement agreement’s indemnity

provisions. Thus, summary judgment on appellees’ counterclaim was also not

precluded on this basis.

The trial court properly granted summary judgment on appellees’
indemnity counterclaim

For all of these reasons, we hold that appellees established that no

genuine issue of material fact exists and that they are entitled to judgment as

a matter of law against appellant based on the indemnity provisions in the

settlement agreement. Tex. R. Civ. P. 166a(c); see Grant, 73 S.W.3d at 215.

We therefore affirm the trial court’s order granting appellees’ summary

judgment motion on that ground.

24
 Our affirmance of the trial court’s summary judgment on the basis of
appellees’ indemnification counterclaim is dispositive of this appeal

Appellant’s petition on file at the time the trial court granted appellees’

motion for summary judgment against her sought a declaration that Emenhiser

was an insured under appellees’ coverage with DISD for the purpose of

establishing that appellees were “obligated to satisfy any judgment” appellant

obtained against Emenhiser. Because we hold that the indemnity and hold

harmless language in the settlement agreement between appellant and DISD

precludes appellees’ responsibility to pay any such judgment to appellant, we

conclude that as to her (and on Sally’s behalf), the issue of whether Emenhiser

is an insured under the interlocal participation agreement is immaterial. 16 In

other words, though the indemnity provision is not an affirmative defense nor

an absolute bar to appellant’s claim seeking a coverage determination, see Derr

Construction Co. v. City of Houston, 846 S.W.2d 854, 858 (Tex.

App.—Houston [14th Dist.] 1992, no writ), we hold that in this case, it renders

the coverage determination moot. Therefore, we will not consider whether the

trial court properly granted appellees’ summary judgment motions on the

16
… While it may remain material to Emenhiser (who must satisfy a
$5,000,000 judgment), he did not appeal the trial court’s decision to grant
appellees’ motion for summary judgment on their declaratory judgment cross-
claim against him, nor did he file any response to the trial court regarding that
motion.

25
coverage issue. See Tex. R. App. P. 47.1; Hawkins v. Walker, 233 S.W.3d

380, 395 n. 47 (Tex. App.—Fort Worth 2007, no pet.).

Conclusion

Having overruled a dispositive portion of appellant’s sole issue, we affirm

the trial court’s judgment.

TERRIE LIVINGSTON
JUSTICE

PANEL: LIVINGSTON and MCCOY, JJ.; and WILLIAM BRIGHAM (Senior
Justice, Retired, Sitting by Assignment).

DELIVERED: March 5, 2009

26