NUMBER 13-13-00006-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ROLANDO BENAVIDEZ, Appellant,
v.
THE UNIVERSITY OF TEXAS –
PAN AMERICAN, Appellee.
On appeal from the 92nd District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Chief Justice Valdez
By three issues, which we construe as four, appellant Rolando Benavidez,
challenges the trial court’s order granting appellee The University of Texas-Pan
American’s (UTPA) plea to the jurisdiction. Benavidez argues that: (1) the release form
he signed did not preclude his lawsuit because UTPA did not abide by the safety policies
listed on the back of the form; (2) the Texas Recreational Use Statute did not preclude
the lawsuit because Benavidez’s pleadings at least raised a fact issue regarding gross
negligence; (3) the trial court erred by granting UTPA’s objections to his evidence; and
(4) the trial court erred by ordering Benavidez to pay UTPA’s court costs. We affirm.
I. BACKGROUND
This suit arises out of injuries sustained by Benavidez after falling from a climbing
wall on the campus of UTPA. Prior to climbing the wall, the belayer, an employee of
UTPA, tied a rope to a harness attached to Benavidez. While Benavidez climbed the
wall, the belayer held on to the opposite end of the rope. After reaching the top of the
wall, the belayer instructed Benavidez to “let go.” Subsequently, Benavidez fell thirty-
three feet from the top of the wall, breaking his ankle in multiple places and suffering a
lumbar spine compression fracture. Another employee of UTPA witnessed Benavidez
fall and immediately came to his aid. She provided deposition testimony in which she
explained that the figure eight-knot which is used to tie the rope to the harness was “either
not tied properly, or not tied at all.”
Before he climbed the wall, Benavidez signed a waiver/release from liability. On
the front of the page, the form stated:
By signing this agreement you give up your right to bring a court action to
recover compensation or obtain any other remedy for any injury to yourself
or your property or for your death however caused arising out of your use
of the University of Texas Pan-American Climbing Wall now or any time in
the future.
Also on the front of the page, under the heading, “Release/Indemnification and
Covenant Not to Sue”, the form stated:
In consideration of my use of the Climbing Wall, I the undersigned user, . .
. HEREBY DO RELEASE University of Texas Pan American . . . from any
cause of action, claims, or demands of any nature whatsoever, including
but not limited to a claim of negligence . . . against the University on account
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for personal injury, property damage, death or accident of any kind arising
out of or in any way related to my use of the Climbing Wall, whether that
use is SUPERVISED OR UNSUPERVISED, howsoever the injury or
damages is caused, including, but not limited to the negligence of the
University.
Benavidez initialed under this clause in the blank provided. Benavidez then initialed in
the spaces provided under paragraphs stating that he: (1) would indemnify and hold
harmless UTPA from all causes of action; (2) had full knowledge of the risks associated
with climbing the wall; (3) was in good health and had no physical limitations precluding
his safe use of the climbing wall; and (4) was of lawful age and was competent to enter
into a legally binding agreement. Appellee signed and dated the bottom of the front page
of the document in the space provided.
On the backside of the Waiver and Release from Liability, under the title “SAFETY
POLICIES AND RULES”, it stated, inter alia:
I Rolando Benavidez [name written by Benavidez in space provided] accept
full responsibility for my own safety while in the UTPA climbing Wall area. I
agree to abide by, and help enforce the following safety policies and rules:
To enter the climbing area, you must have signed a waiver of
liability/assumption of the risk and turn into the climbing wall
Supervisor.
Climbers must check in/out at the Climbing Wall desk during
operation hours.
Before each climbing the entrance instructor and belayer must check
each climber to ensure that the knot and harness buckle are correctly
fastened and that the belay system and belayers harness buckles
are safe.
The belayer must keep their brake hand on the rope and eyes on the
climber at all times.
Belayers must belay while standing up: NO belaying from benches,
seated, or in a reclined position.
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....
No food or open drink containers allowed in the climbing wall area.
No loose chalk.
No obscene language.
....
No Jewelry
....
Any infraction of these rules will result in loss of climbing privileges.
Repeated infractions will result in loss of future privileges for
inappropriate or unsafe behavior.
These rules were included in a list of twenty-four safety policies and rules, all listed as
bullet points. At the bottom of the document in bold letters, the document stated, “I
acknowledge that I have read and agree to abide by the Wellness and recreational
Sports Complex safety polices and Rules.” Underneath this statement, Benavidez
printed and signed his name.
At the hearing on the plea to the jurisdiction, deposition testimony was admitted in
which the belayer explained that although he believed at the time that he tied the knot
securing the rope to the harness properly, he must not have appropriately tied a double
figure-eight knot as he was instructed to do. The belayer also testified that an entrance
examiner did not check the knot before Benavidez began his climb and that UTPA never
followed that policy until after Benavidez’s accident occurred.
Benavidez filed suit under section 101.021 of the Texas Tort Claims Act. In his
pleadings, Benavidez alleged that his injuries resulted from the belayer’s “failure to
properly use the climbing equipment and properly supervise [Benavidez] during the
climb.” Under the theory of respondeat superior, Benavidez claimed that his injuries were
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caused by the negligence and gross negligence of UTPA. Benavidez alleged a cause of
action for negligent use of tangible personal property in that UTPA breached its “legal
duty to [Benavidez] to provide supervision of [Benavidez], use safe equipment with
[Benavidez], and to properly secure [Benavidez’s] harness prior to climbing.” Benavidez
also alleged a cause of action for negligent use or condition of real property in that UTPA
breached its duty to provide a safe climbing wall for Benavidez and failed to use ordinary
care to protect Benavidez from an unreasonably dangerous condition. In addition,
Benavidez alleged that UTPA had subjective awareness of a high degree of risk and
acted with “conscious indifference to the rights, safety, or welfare of [Benavidez] or others
similarly situated.”
UTPA filed a plea to the jurisdiction alleging that it did not waive immunity under
the Texas Tort Claims Act because (1) Benavidez signed a waiver of liability prior to
climbing the wall releasing UTPA from liability “for all damages complained of” by
Benavidez, and (2) pursuant to the Texas Recreational Use Statute, which further limits
a State entity’s waiver of immunity to circumstances in which the State entity fails to
exercise a duty of care owed by a landowner to trespasser, Benavidez was required to
demonstrate gross negligence in his pleadings and failed to do so. Benavidez responded
by conceding that the Texas Recreational Use Statute applied to his claim and required
him to prove gross negligence. Benavidez however contended that, (1) by his pleadings,
he raised a fact issue on gross negligence; and (2) he could avoid enforcement of the
release from liability as to all of his claims because UTPA committed a prior material
breach or failed to satisfy a precondition of the contract by failing to comply with the safety
polices.
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After holding a hearing, the trial court entered an order granting UTPA’s plea to the
jurisdiction and ordered Benavidez to pay UTPA’s court costs. This appeal followed.
II. STANDARD OF REVIEW
We review a plea to the jurisdiction under a de novo standard of review. Westbrook
v. Penley, 231 S.W. 3d 389, 394 (Tex. 2007). A plea to the jurisdiction seeks to dismiss
a case for want of jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
226–27 (Tex. 2004). When reviewing whether a plea was properly granted, we first look
to the pleadings to determine if jurisdiction is proper, construing them liberally in favor of
the plaintiff and looking to the pleader’s intent. Id. at 226. “If a plea to the jurisdiction
challenges the existence of jurisdictional facts, we consider relevant evidence submitted
by the parties when necessary to resolve the jurisdictional issues raised,” even where
those facts may implicate the merits of the cause of action. Id. at 227. If that evidence
creates a fact issue as to the jurisdictional issue, then it is for the fact-finder to decide. Id.
at 227–28. “However, if the relevant evidence is undisputed or fails to raise a fact
question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a
matter of law.” Id. at 228. In considering this evidence, we “take as true all evidence
favorable to the nonmovant” and “indulge every reasonable inference and resolve any
doubts in the nonmovant’s favor.” City of Waco v. Kirwan, 298 S.W.3d 618, 621–22 (Tex.
2009).
III. TEXAS TORTS CLAIM ACT
As a governmental unit, UTPA is immune from both suit and liability unless the
Tort Claims Act has waived that immunity. See TEX. CIV. PRAC. & REM. CODE ANN. §
101.001(3)(A) (West, Westlaw through 2013 3d C.S.). Section 101.021 of the Tort Claims
Act has been interpreted as waiving sovereign immunity in three general areas: “use of
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publicly owned automobiles, premises defects, and injuries arising out of conditions or
use of property.” Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000). Pursuant
to section 101.021, a governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by
the wrongful act or omission or the negligence of an employee acting
within his scope of employment if:
(A) the property damage, personal injury, or death arises from the
operation or use of a motor-driven vehicle or motor-driven
equipment; and
(B) the employee would be personally liable to the claimant
according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible
personal or real property if the governmental unit would, were it a
private person, be liable to the claimant according to Texas law.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West, Westlaw through 2013 3d C.S.).
In addition, the parties do not dispute that the Texas Recreational Use Statute
applies to this case. When injury or death results on state-owned, recreational land, the
recreational use statute limits the state’s duty even further to that owed by a landowner
to a trespasser, which means that the State only waives immunity for conduct that rises
to the level of gross negligence. Id. § 75.002 (West, Westlaw through 2013 3d C.S.); see
also id. §§ 75.003(g) (“To the extent that this chapter limits the liability of a governmental
unit under circumstances in which the governmental unit would be liable under [the Tort
Claims Act], this chapter controls.”), 101.058 (same); State v. Shumake, 199 S.W.3d 279,
283 (Tex. 2006).
IV. RELEASE/WAIVER OF LIABILITY
a. Applicable Law
A release operates to extinguish a claim or cause of action and is an absolute bar
to the released matter. See Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d
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505, 509 (Tex. 1993). The Texas Supreme Court has held that in order to be valid, a
release must (1) provide fair notice by being conspicuous, and (2) comply with the express
negligence doctrine. Id. To be conspicuous, a release must be written, displayed, or
presented such that a reasonable person against whom it is to operate ought to have
noticed it. See id. 510 (adopting the definition from TEX. BUS. & COM. CODE ANN. §
1.201(b)(1) (West, Westlaw through 2013 3d C.S.)). A release satisfies the express
negligence doctrine if it expresses the intent of the parties to exculpate a party for its own
negligence. Atl. Richfield Co. v. Petroleum Pers., Inc., 768 S.W.2d 724, 726 (Tex. 1989).
The party seeking the protections of a release asserts an affirmative defense.
Dresser, 853 S.W.2d at 509. It is therefore the defendant’s burden to establish all
elements of the affirmative defense. Id. UTPA argues that it did not waive immunity
under the Texas Tort Claims Act because it would not be liable as a private party as it
established an affirmative defense as a matter of law. See TEX. CIV. PRAC. & REM. CODE
ANN. § 101.021. Accordingly, we apply a traditional summary judgment evidentiary
burden to the UTPA’s contention as we would to a private party’s reliance on a release
from liability prior to trial. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
226 (Tex. 2004); Galveston Indep. Sch. Dist. v. Clear Lake Rehab. Hosp., L.L.C., 324
S.W.3d 802, 807 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (reasoning that a
governmental entity’s challenge to jurisdictional facts implicating the merits of the
plaintiff's lawsuit “mirrors traditional summary-judgment practice”). The burden was
therefore on UTPA to provide evidence establishing that Benavidez had released it from
liability on the claims before the court. Clear Lake Rehab. Hosp., L.L.C., 324 S.W.3d at
811.
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b. Discussion
In its plea to the jurisdiction, UTPA argued that it did not waive immunity from
Benavidez’s Texas Tort Claims Act suit because Benavidez executed the release
contract, which “released [UTPA] of all liability for the damage complained of in
[Benavidez’s] cause of action.”1 Specifically, UTPA asserted that because the release
was executed, Benavidez’s “suit is barred in its entirety and [UTPA] moves for dismissal
as a matter of law.” Moreover, both in its plea to the jurisdiction and on appeal UTPA
described the release from liability as the “real issue before the court,” and UTPA framed
its Texas Recreational Use Statute defense as an alternative argument, asking the trial
court to address the issue if it found that the release was not enforceable. In his appellate
brief, Benavidez concedes that UTPA’s plea to the jurisdiction was based on two
alternative defenses: “(1) [Benavidez] waived all personal injury claims in a
waiver/release from liability form . . . ; and (2) [Benavidez’s] claims are barred by the
recreational use statute.”
1 This Court has never held that a state entity’s affirmative defense is a proper basis for granting a
plea to the jurisdiction. In its plea to the jurisdiction, UTPA relied on Texas Engineering Extension Service
v. Gifford, in which the Waco Court of appeals reversed a denial of a plea to the jurisdiction because it
found that the plaintiff had executed a release from liability. No. 10-11-00242-CV, 2012 WL 851742, at *4
(Tex. App.—Waco Mar. 14, 2012, no pet.) (mem. op.). The Gifford court reasoned that under the Texas
Tort Claims Act:
A governmental unit is liable for personal injury if the government would be liable, were it
a private person, according to Texas law. [The plaintiff’s] execution of the release and
indemnity agreement extinguished any liability owed by [the defendant]. Because a private
person would not be liable for [the plaintiff’s] personal injuries, [the defendant] has not
waived its sovereign immunity.
Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West, Westlaw through 2013 3d C.S.)). In this
appeal, we need not determine whether we agree with this analysis. Benavidez does not argue that UTPA’s
affirmative defense of release is an improper basis for an order granting a plea to the jurisdiction; therefore,
we cannot reverse the trial court’s judgment on this basis and we decline to consider this issue. TEX. R.
APP. P. 47.1. Accordingly, for purposes of this appeal only, we assume without deciding that the affirmative
defense of release, if established as a matter of law, may be a valid basis upon which to grant a plea to the
jurisdiction.
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Notably, while Benavidez did not specifically plead separable causes of action for
negligence and gross negligence, he did claim that the injuries alleged were caused by
the negligence and gross negligence of UTPA and that UTPA exhibited “conscious
indifference to the rights, safety, or welfare of [Benavidez] or others similarly situated.”
Moreover, in his motion for summary judgment, response to the plea to the jurisdiction,
and appellate brief and at the hearing on the plea and at oral arguments on appeal,
Benavidez conceded that the Texas Recreational Use Statue applied to his lawsuit, which
required him to show gross negligence. He thereby effectively abandoned any separate
claim of ordinary negligence, to the extent that it was originally pleaded, and proceeded
only with a suit for gross negligence.
By granting the plea to the jurisdiction, which alleged that Benavidez released all
claims against UTPA, the trial court therefore held that Benavidez released UTPA from
liability for gross negligence. There is some disagreement among the courts of appeals
as to whether a party may validly release claims of gross negligence. Some courts have
held that negligence and gross negligence are not separable claims and that therefore a
release of liability for negligence also releases a party from liability for gross negligence.
Tesoro Petroleum Corp. v. Nabors Drilling U.S., 106 S.W.3d 118, 127 (Tex. App.—
Houston [1st Dist.] 2002, pet. denied); Newman v. Tropical Visions, Inc., 891 S.W.2d 713,
722 (Tex. App.—San Antonio 1994, writ denied). In contrast, the Dallas Court of Appeals
recently held that a plaintiff’s execution of a contract specifically releasing a defendant
from liability for negligence did not release the defendant from liability for gross
negligence. Van Voris v. Team Chop Shop, LLC, 402 S.W.3d 915, 926 (Tex. App.—
Dallas 2013, no pet.). The Dallas Court reasoned that the public policy requiring an
express release from negligence also requires an express release from gross negligence.
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See id. Other courts have held that pre-accident waivers of gross negligence are invalid
as against public policy. Sydlik v. REEIII, Inc., 195 S.W.3d 329, 336 (Tex. App. —Houston
[14th Dist.] 2006, no pet.); Smith v. Golden Triangle Raceway, 708 S.W.2d 574, 576 (Tex.
App.—Beaumont 1986, no writ).
This Court has never addressed the issue of whether a release from liability for
gross negligence is separable from a release of liability from negligence, or whether a
release of liability for gross negligence violates public policy. See Blankenship v. Spectra
Energy Corp., 13-12-00546-CV, 2013 WL 4334306, at *5 n.6 (Tex. App.—Corpus Christi
Aug. 15, 2013, no pet.) (declining to decide whether a party may release claims of gross
negligence because the release was unenforceable for failure to satisfy fair notice
requirements and because summary judgment evidence conclusively negated the gross
negligence claim). Here, we cannot decide this issue because it has not been raised.
TEX. R. APP. P. 47.1. On appeal, Benavidez effectively concedes that the release form
purports to release UTPA from liability for all personal injury claims, but relies solely on
contract defenses as an attempt to avoid enforcement of the release. He does not
challenge enforcement of the release on the ground that it was inapplicable to his gross
negligence claims; similarly he does not argue that the release of his gross negligence
claims was invalid because it did not comply with fair notice requirements or because it
violated public policy. See id. Moreover, Benavidez did not present any of these
arguments to the trial court. See. id. R. 33.1.
Accordingly, we now address Benavidez’s first issue, in which he contends that he
can avoid enforcement of the release contract because the belayer failed to properly tie
the knot, and because UTPA failed to follow its own policy that required an entrance
instructor to check the knot after it was tied. Benavidez argues that these actions
11
constituted either a prior material breach of the release contract or a failure to satisfy a
precondition of the contract. We disagree.
Under Texas law, a release is a contract and is subject to avoidance just like any
other contract. Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990). When construing a
contract, the court’s primary concern is to give effect to the written expression of the
parties’ intent. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). This
court is bound to read all parts of a contract together to ascertain the agreement of the
parties. See Royal Indem. Co. v. Marshall, 388 S.W.2d 176, 180 (Tex.1965). The
contract must be considered as a whole. Reilly v. Rangers Management, Inc., 727
S.W.2d 527, 529 (Tex.1987); Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983).
Moreover, each part of the contract should be given full effect. See Barnett v. Aetna Life
Ins. Co., 723 S.W.2d 663, 666 (Tex.1987).
Under the theory of prior material breach, a party is discharged from its contractual
obligations based on the other party’s material breach of the contract. See Mustang
Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 198 (Tex. 2004) (determining that a
party was released from further contractual obligations when the other party materially
breached). In order for a material breach of contract to occur, the party seeking avoidance
must be deprived of part of its consideration or an expected benefit of the contract.2 See
id. at 199.
2 Texas courts have adopted the factors set forth in the Restatement (Second) of Contracts for
determining the materiality of a breach:
(1) the extent to which the injured party will be deprived of the benefit which he reasonably
expected;
(2) the extent to which the injured party can be adequately compensated for the part of that
benefit of which he will be deprived;
12
Alternatively, a condition precedent is an event that must occur or act that must be
performed before rights can accrue to enforce an obligation. See Centex Corp. v. Dalton,
840 S.W.2d 952, 956 (Tex. 1992). Ordinarily, terms such as “if,” “provided that,” “on
condition that,” or similar conditional language indicate the intent to create a condition
precedent. Criswell v. European Crossroads Shopping Ctr., 792 S.W.2d 945, 948
(Tex.1990). Conditions precedent, which can cause forfeiture of a contractual right, are
not favored under the law, and we will not construe a contract provision as a condition
precedent unless we are compelled to do so by language that may be construed in no
other way. See Reilly, 727 S.W.2d at 530.
As an initial matter, we cannot conclude that under the plain language of the
contract, the safety policies listed on the back of the waiver are part of Benavidez’s
agreement to release UTPA from liability on the front of the document; therefore, UTPA
could not breach or fail to satisfy a condition of the release contract by failing to follow the
safety policies. See Mustang Pipeline Co., 134 S.W.3d at 198; Criswell, 792 S.W.2d at
948. Here, the separate sides of the document constitute separate agreements that were
each signed separately by Benavidez; moreover, they contain separate promises to
perform distinct duties. In the agreement on the front of the page, Benavidez agreed to
release UTPA from liability for its own negligence resulting from any injury. In the
(3) the extent to which the party failing to perform or to offer performance will suffer
forfeiture;
(4) the likelihood that the party failing to perform or to offer to perform will cure his failure,
taking account of all the circumstances including any reasonable assurances; and
(5) the extent to which the behavior of the party failing to perform or to offer to perform
comports with standards of good faith and fair dealing.
Mustang Pipeline Co., v. Driver Pipeline Co., 134 S.W.3d 195, 199 (Tex. 2004); RESTATEMENT (SECOND) OF
CONTRACTS § 241(a) (1981).
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agreement on the back of the page, Benavidez again agreed to accept full responsibility
for any accident and agreed to comply with the safety policies listed on the form. In
addition, the language of the document reveals that the safety policies referred to the
release clause only by requiring the prospective climber to complete the release form
before climbing the wall. This in no way indicates that the safety policies are part of the
consideration or a condition of the waiver/release from liability.3
In fact, the language of the release clause explicitly states that the consideration
for the release is the climber’s opportunity to climb the wall. Further, the clause stipulates,
in capital letters, that the release applies whether climbing is “SUPERVISED OR
UNSUPERVISED,” which indicates that UTPA was not promising to undertake any duty
or conditioning the release on any action other than providing the climber with access to
the climbing wall.
Moreover, even if we were to consider the two sides of the document as one
agreement, the safety policies side of the document, by its clear language, does not
indicate that UTPA promised to comply with the policies or that compliance with the
policies by UTPA was consideration for or a condition precedent of Benavidez’s
agreement to release UTPA from liability. See Forbau, 876 S.W.2d at 133. Benavidez
argues that the bullet point stating, “Before each climbing the entrance instructor and
belayer must check each climber to ensure that the knot and harness buckle are correctly
fastened” indicates that UTPA undertook an affirmative contractual duty to follow this
3 Benavidez also refers us to deposition testimony from the coordinator of campus activities in
which he agreed that both the back and front of the document are part of one agreement. This testimony
however does not indicate that the safety policies were consideration for or a precondition of the release
from liability. Moreover, the coordinator’s testimony did not indicate that he was giving a legal opinion on
whether both sides of the agreement constitute one contract.
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policy as part of Benavidez’s agreement to waive liability.4 However, reading the safety
policies document as a whole, we find that the language of the agreement placed the sole
responsibility on the climber to ensure that the procedures in the safety polices were
followed. See Reilly, 727 S.W.2d at 529. At the top of the safety policy side of the
document, it specifically states, “I Rolando Benavidez [name written by Benavidez in the
space provided] accept full responsibility for my own safety while in the UTPA climbing
Wall area. I agree to abide by, and help enforce the following safety policies and rules.”
The safety policies are listed as bullet points beneath this agreement. The language
Benavidez refers to is listed among multiple bullet points mostly relating to Benavidez’s
conduct, such as “no jewelry” and “no obscene language.” As is clear from the plain
language of the agreement, these are policies that Benavidez agreed to abide by and
help enforce; no language indicates that UTPA agreed to comply with the policies or that
the policies were consideration for or a condition precedent of the release from liability.
Further, the final bullet point of the safety policies stated that, “Any infraction of
these rules will result in loss of climbing privileges. Repeated infractions will result in loss
of future privileges and possibly additionally sanctions . . . .” The fact that the climber was
subject to punishment for failure to follow the policies further indicates that the document
was intended to require the climber to comply with and ensure compliance with the safety
polices, and was not a promise to comply with the policies by UTPA.
Finally, at the bottom of the safety policies, directly before Benavidez’s signature,
it explicitly states: “I acknowledge that I have read and agree to abide by the Wellness
4 On appeal, Benavidez claims that the word “before”, used as part of the safety polices, indicates
that the bullet point was a condition precedent of the contract. Criswell v. European Crossroads Shopping
Ctr., 792 S.W.2d 945, 948 (Tex. 1990). However, the term indicates that the safety policies were to be
complied with before Benavidez climbed the wall not before he released UTPA from liability or before the
contract could be enforceable. See id.
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and recreational Sports Complex safety polices and Rules.” Neither this language nor
any other language on either side of the document indicates that Benavidez premised his
acceptance of responsibility on or expected the benefit of the performance of any duty on
the part of UTPA. See Mustang Pipeline Co., 134 S.W.3d at 198; Criswell, 792 S.W.2d
at 948.
Because we find that, by its clear language, the waiver and release form did not
express the intent of either party to condition the release from liability on any performance
by UTPA and did not include a promise by UTPA to follow the safety policies as
consideration for the contract, we conclude that UTPA did not breach or fail to satisfy a
condition of the release contract. See Forbau, 876 S.W.2d at 133. Therefore, Benavidez
could not avoid enforcement of the release. See Mustang Pipeline Co., 134 S.W.3d at
198; Criswell, 792 S.W.2d at 948. We overrule Benavidez’s first issue.
V. REMAINING ISSUES
Because we are affirming the order granting the plea to the jurisdiction based on
the trial court’s finding that Benavidez released UTPA from liability on all of his claims, we
need not address Benavidez’s second issue in which he argues that the Texas
Recreational Use Statute does not bar his suit because he pleaded facts sufficient to raise
a fact issue on gross negligence. TEX. R. APP. P. 47.1. Moreover, we assume without
deciding that all of the evidence presented by Benavidez was admissible; therefore, we
need not address Benavidez’s third issue in which he argues that the trial court erred by
sustaining UTPA’s objections to his evidence. Id.
Finally, Benavidez argues that the trial court erred by awarding UTPA court costs.
Under Texas Rule of Civil Procedure 131, the “successful party to a suit shall recover
court costs incurred therein, except where otherwise provided.” TEX. R. CIV. P. 131. A
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successful party, under the rule, has been defined as “one that obtains a judgment
vindicating a civil right.” Bayer Corp. v. DX Terminals, Ltd., 214 S.W.3d 586, 612 (Tex.
App.—Houston [14th Dist.] 2006, pet. denied). Benavidez argues that the trial court could
not award court costs because to this date, no judgment has been issued by the trial
court. However, Benavidez cites no law, and we find none, indicating that the trial court
may not award court costs pursuant to Texas Rule of Civil Procedure 131 in an order
granting a plea to the jurisdiction. See TEX. R. CIV. P. 131. Accordingly, we overrule
Benavidez’s fourth issue.
VI. CONCLUSION
We affirm the trial court’s order granting UTPA’s plea to the jurisdiction
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice
Delivered and filed the
30th day of October, 2014.
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