Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-12-00711-CV
Cathy CHARBONNET and Ernest Charbonnet,
Appellants
v.
Farouk SHAMI, Individually; Farouk Systems, Inc. d/b/a Farouk Systems Group; Armstrong
McCall, Inc.; Armstrong McCall Holdings, Inc.; Armstrong McCall Management, L.C.; and
Andrew Guerra,
Appellees
From the 98th District Court, Travis County, Texas
Trial Court No. D-1-GN-11-001136
The Honorable Tim M. Sulak, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: June 12, 2013
AFFIRMED
This is an appeal of a summary judgment in a suit for personal injury damages sustained
by Cathy Charbonnet. Cathy and her husband, Ernest, appeal the trial court’s entry of a
summary judgment in favor of Appellees. The appeal largely focuses on the validity and effect
of a release of liability signed by Cathy. We affirm the summary judgment.
04-12-00711-CV
BACKGROUND
Cathy attended a hair show in Mississippi hosted by Appellees for the purpose of having
her hair styled by her regular stylist. After arriving at the location, Cathy was told that her stylist
would not be able to style her hair, so she agreed to let Andrew Guerra, one of the Appellees,
style her hair.
Cathy did not model in the show but, instead, sat backstage while her hair was being
colored and styled. While sitting backstage, a representative of Appellees requested permission
to use photographs of Cathy for marketing purposes. Cathy was asked to sign a document
granting Appellees permission to use her photograph and releasing them from liability for future
claims arising from their services or products. According to Cathy, she was informed that the
form she signed permitted use of her photograph, but she was never told she was also releasing
Appellees from future liability.
The coloring and treatment products were applied to Cathy’s hair at approximately 8:45
a.m. and removed at approximately 2:00 p.m. During that time period, multiple individuals
worked with Cathy’s hair, sometimes with lengthy intervals between activity. When Cathy
expressed concern about the amount of time the chemicals had been on her hair and scalp, she
was assured the chemicals had not been on her hair too long. Around 2:00 p.m., the chemicals
were washed out of Cathy’s hair.
When Cathy awoke the next morning, she noticed that her hair was beginning to fall out.
Within a few weeks, Cathy lost all of the hair on her body. Cathy was diagnosed with alopecia
areata universalis, which is a medical condition that causes rapid loss of all hair on one’s body.
There is no treatment for the condition, and it is likely permanent. It is alleged that Cathy’s
condition manifested as a result of her prolonged exposure to the chemicals used by Appellees.
-2-
04-12-00711-CV
In April of 2011, the Charbonnets filed suit against Appellees. Cathy and Mr. Guerra
were deposed in February of 2012. In April of 2012, Appellees filed motions for summary
judgment. After a hearing on the motions, the trial court granted summary judgment in favor of
Appellees. The Charbonnets then filed a motion for new trial, and it was overruled by operation
of law.
THE RELEASE
A. Standard of Review
Appellate courts review the grant of summary judgment de novo. Exxon Corp. v.
Emerald Oil & Gas Co., 331 S.W.3d 419, 422 (Tex. 2010); Lesieur v. Fryar, 325 S.W.3d 242,
246 (Tex. App.—San Antonio 2010, pet. denied). In a traditional motion for summary judgment,
the movant must show “there is no genuine issue as to any material fact and that it is entitled to
judgment as a matter of law.” Browning v. Prostok, 165 S.W.3d 336, 344 (Tex. 2005). If the
trial court does not state the grounds for its ruling, we will affirm the summary judgment if any
of the grounds presented in the motion are meritorious. Id.; State v. Ninety Thousand Two
Hundred Thirty-Five Dollars & No Cents in U.S. Currency ($90,235), 390 S.W.3d 289, 292
(Tex. 2013). “A defendant moving for summary judgment on an affirmative defense has the
burden to conclusively establish that defense.” Havlen v. McDougall, 22 S.W.3d 343, 345 (Tex.
2000); Fields v. Klatt Hardware & Lumber, Inc., 374 S.W.3d 543, 545–46 (Tex. App.—San
Antonio 2012, no pet.). When reviewing the grant of a traditional motion for summary
judgment, “we take as true all competent evidence favorable to the nonmovant, and we indulge
every reasonable inference and resolve any doubts in the nonmovant’s favor.” Diversicare Gen.
Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005); Lesieur, 325 S.W.3d at 246.
-3-
04-12-00711-CV
B. Did the Release Provide Fair Notice?
In their second point of error, the Charbonnets claim the trial court erred in granting
Appellees’ motions for summary judgment because there are fact issues concerning whether the
release signed by Cathy provided fair notice that she was releasing Appellees from liability for
their own negligence. The Texas Supreme Court has developed fair-notice requirements that
must be met when parties attempt to exculpate themselves, in advance, from liability for their
own negligence. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993).
A party has provided fair notice of a release from future liability when its release complies with
the express negligence doctrine and is conspicuous. Id. at 508; Tamez v. Sw. Motor Transp.,
Inc., 155 S.W.3d 564, 569 (Tex. App.—San Antonio 2004, no pet.). Whether a release of
liability fulfills the requirements of fair notice is a question of law for the court. Dresser, 853
S.W.2d at 509. Thus, a release that does not satisfy both fair notice requirements is
unenforceable as a matter of law. Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192
(Tex. 2004).
The Charbonnets argue only that the release in this case was not conspicuous; therefore
we will not consider whether the release satisfies the express negligence doctrine. A release of
future liability is conspicuous when it draws the attention of a reasonable person looking at the
face of the document such that the person ought to notice it. TEX. BUS. & COM. CODE ANN.
§ 1.201(b)(10) (West 2009); Dresser, 853 S.W.2d at 508, 511 (defining conspicuousness as it is
defined in the Texas Business and Commerce Code). When determining whether a release is
conspicuous, we consider whether the release is set off by a heading in capital letters and in a
different size, type, font, or color than the surrounding text. TEX. BUS. & COM. CODE ANN.
§ 1.201(b)(10)(A); see also Dresser, 853 S.W.2d at 510–11. We also examine whether the
language in the body of the release is in a different size, type, font, or color from the surrounding
-4-
04-12-00711-CV
text, or whether it is “set off from the surrounding text of the same size by symbols or marks that
call attention to the language.” TEX. BUS. & COM. CODE ANN. § 1.201(b)(10)(B); Littlefield v.
Schaefer, 955 S.W.2d 272, 274–75 (Tex. 1997). Further, releases are often conspicuous when
the entire document containing the release is a single page and the language of the release
appears on the front side of the page and not “hidden under a separate heading or surrounded by
unrelated terms.” Dresser, 853 S.W.2d at 510 (citing Enserch Corp. v. Parker, 794 S.W.2d 2, 9
(Tex. 1990)). But see Littlefield, 955 S.W.2d at 274 (holding that the release was not
conspicuous, despite the fact that release was the only writing on a single-page document, when
the text of the release was so small that it was illegible).
As reproduced below, the document releasing Appellees from liability is a single page
and contains only two paragraphs on the front side of the page.
-5-
04-12-00711-CV
The document is clearly identified as a release and waiver. The first paragraph grants
Appellees permission to use Cathy’s photo and the second paragraph releases Farouk, its
representatives, its employees, and its distributors 1 from liability. As is evident, the heading of
the second paragraph states: “YOU RELEASE ‘FAROUK’ FROM LIABILITY.” This heading
is in capital letters, is larger than the heading of the first paragraph, and is in a bold font. The
1
Armstrong McCall, Inc., Armstrong McCall Holdings, Inc., and Armstrong McCall Management, L.C.
(collectively “AMPL”) asserts that it is a distributor of Farouk, and the Charbonnets do not challenge the
applicability of the waiver to AMPL.
-6-
04-12-00711-CV
language in the body of the second paragraph is also in a larger font than the language in the
body of the first paragraph and is in a bold font, unlike the first paragraph. It also appears the
heading and body of the second paragraph are in a different font than the heading and body of
the first paragraph. Additionally, apart from the release paragraph, surrounded by multiple lines
of space, and directly above Cathy’s signature is a sentence in all capital letters that reads: “I AM
AT LEAST 18 YEARS OLD, HAVE READ AND UNDERSTAND ALL THE PROVISIONS
OF THIS RELEASE AND WAIVER, AND I AGREE TO ALL ITS CONTENTS AS
EVIDENCED BY MY SIGNATURE BELOW.”
Relying on Littlefield v. Schaefer, the Charbonnets argue that the text in the body of the
second paragraph is “nearly illegible” and that “[al]though capital letters are present in a few
areas of Defendants’ document, the capital letters do not effectively contrast one portion of the
release from another.” Specifically, the Charbonnets point to language in Littlefield stating that
larger font in the heading of a release is not, alone, sufficient to make the release conspicuous.
Littlefield, 955 S.W.2d at 275. Although we do not dispute the truth of this general proposition,
it must be placed in context. The release in Littlefield contained larger headings indicating that
the text was a release of liability, but the body of the text was printed in “miniscule typeface”
that was smaller than the surrounding text and was placed in the bottom left corner of the
document. Id. at 274–75. The statement cited by the Charbonnets was explaining that merely
using larger headings indicating a release of liability will not suffice when the signatory has no
idea what claims he is releasing because the text is too small to read. Id. at 275. The release in
this case is nothing like the release in Littlefield. The release signed by Cathy contained not only
a larger heading, but also text of a legible size in a bold font.
The Charbonnets also appear to assert that Cathy was misled about the contents of the
document, claiming that she was informed only that the document granted Appellees permission
-7-
04-12-00711-CV
to use her photograph. The Charbonnets never alleged fraud, nor did they point to any authority
holding that a less-than-complete or misleading description of a document’s contents can defeat
a release that provides fair notice of its contents. Thus, any such contention is waived by the
Charbonnets. TEX. R. APP. P. 33.1; TEX. R. APP. P. 38.1. Because the document containing the
release was only about half of a page in length and contained only two paragraphs, and because
the language of the release was legible and distinguished from the surrounding texts in multiple
ways, we conclude the release signed by Cathy was sufficiently conspicuous to put a reasonable
person on notice of its existence and terms.
C. Can a Pre-Injury Waiver of Liability Release Appellees from Liability for a Subsequent
Misrepresentation?
In their fourth appellate point, the Charbonnets argue that a pre-injury waiver of claims
cannot release a party from liability for misrepresentations or warranties made after the waiver is
signed. The Charbonnets cite no authority supporting their contention that a valid waiver does
not operate against future wrongdoings of Appellees. Moreover, since a pre-injury waiver is
designed to release a party in advance from liability, future wrongdoings would generally be
encompassed within the scope of the waiver. Dresser, 853 S.W.2d at 508.
In this case, the Charbonnets released Appellees from any claim “arising directly or
indirectly out of any hair or beauty services performed” regardless of whether the conduct giving
rise to the claim occurred then or in the future. A release “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.” Dresser, 853 S.W.3d at 508. In light of the
existing law on this issue, and in the absence of any contrary authority provided by the
Charbonnets, we overrule their fourth appellate issue.
-8-
04-12-00711-CV
D. Was the Release Invalid As Against Public Policy to the Extent It Purported to Waive
Claims of Gross Negligence?
In their third point of error, the Charbonnets contend Texas public policy prohibits
Appellees from obtaining an advance waiver of their liability for gross negligence. Appellees
assert that the Charbonnets have not preserved this claim for appellate review because they did
not specifically plead gross negligence as a cause of action or raise the issue in their response to
Appellees’ motions for summary judgment. The Charbonnets argue that their factual allegations
put Appellees on notice of their gross-negligence claim and that gross negligence is only
negligence of a different degree, not type, so it does not have to be separately pleaded.
Assuming, without deciding, the Charbonnets’ factual assertions in their pleadings were
sufficient to permit proof of gross negligence at trial, the Charbonnets’ argument regarding the
public policy of prohibiting waiver of gross negligence is not properly preserved for our review.
The purpose of Texas Rule of Civil Procedure 166a(c) is to require motions for summary
judgment, responses, and other replies to provide adequate information to the opposing party and
to define the issues to be determined for summary judgment. McConnell v. Southside Indep.
Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). “Issues not expressly presented to the trial court
by written motion, answer[,] or other response shall not be considered on appeal as grounds for
reversal.” TEX. R. CIV. P. 166a(c). After the movant has presented a legally sufficient motion
for summary judgment, “the non-movant must expressly present to the trial court, by written
answer or response, any issues defeating the movant’s entitlement.” McConnell, 858 S.W.2d at
343 (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979)).
“[T]hese rules further the policy of seeking clarity and simplicity in summary judgment
practice.” Id. at 341.
-9-
04-12-00711-CV
Appellees’ motions for summary judgment clearly stated that they were premised on the
affirmative defense of release of liability. Indeed, Appellees expressly stated that “Plaintiff
signed a release that expressly bars any claims against Farouk and its distributor[]s [for]
negligence, gross negligence, misconduct, product liability, or strict liability.” This and similar
statements gave the Charbonnets notice that Appellees were asserting release of liability as an
affirmative defense to any possible claim of gross negligence. As a result, the Charbonnets had
an obligation to present in writing any and all reasons why the asserted affirmative defense did
not bar their gross negligence claim.
The Charbonnets’ response argued that summary judgment was improper because there
had not been adequate time for discovery and because the release was not conspicuous. The
Charbonnets’ response did not, however, present any argument regarding the possible public
policy in Texas prohibiting an advance waiver of liability for gross negligence. Thus, this
argument was not preserved for our review. TEX. R. CIV. P. 166a(c); see also Rosen v. National
Hot Rod Ass’n, No. 14-94-00775-CV, 1995 WL 755712, at *6 (Tex. App.—Houston [14th Dist.]
Dec. 21, 1995, writ denied) (not designated for publication) (concluding that the appellant’s
argument that summary judgment was improper because the release was against public policy
was not preserved for review because it was not presented to the trial court in the appellant’s
response).
The Charbonnets presented their public-policy argument for the first time in their motion
for new trial. For the reasons explained below, however, the motion for new trial also did not
preserve the claim for appellate review. We review a trial court’s decision on a motion for new
trial for an abuse of discretion. In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 213
(Tex. 2009).
- 10 -
04-12-00711-CV
When a motion for new trial is filed after the rendition of summary judgment, “a trial
court has the discretion to consider the grounds in a post-judgment motion and supporting
proof[,] and reaffirm its summary judgment based on the entire record.” TIMOTHY PATTON,
SUMMARY JUDGMENTS IN TEXAS § 7.06[1] (3d ed. 2012); see also Auten v. DJ Clark, Inc., 209
S.W.3d 695, 702 (Tex. App.—Houston [14th Dist.] 2006, no pet.). The trial court also has the
discretion to simply deny a motion filed after the entry of summary judgment without
considering its substance. First Gibraltar Bank, FSB v. Farley, 895 S.W.2d 425, 430 (Tex.
App.—San Antonio 1995, writ denied). In the latter situation, an appellate court need only
consider arguments and evidence presented prior to the summary-judgment hearing. TIMOTHY
PATTON, SUMMARY JUDGMENTS IN TEXAS § 7.06[1] (3d ed. 2012); see also Laurel v. Herschap,
5 S.W.3d 799, 802 (Tex. App.—San Antonio 1999, no pet.). “Thus, the efficacy of a
post-judgment motion to preserve a complaint for appellate review depends upon whether the
trial court affirmatively considers the new grounds and proof as memorialized by a written
order.” TIMOTHY PATTON, SUMMARY JUDGMENTS IN TEXAS § 7.06[1] (3d ed. 2012) (citing
Auten, 209 S.W.3d at 701; Stephens v. Dolcefino, 126 S.W.3d 120, 133–34 (Tex. App.—
Houston [1st Dist.] 2003, pet. denied)).
The Charbonnets’ motion for new trial was overruled by operation of law. Because the
trial court did not sign a new order affirmatively indicating its consideration of the Charbonnets’
motion-for-new-trial claims, the Charbonnets’ contention that they asserted a claim for gross
negligence and that it could not be released under the public policy of Texas was not preserved
for appellate review.
MOTION FOR CONTINUANCE
In their first point of error, the Charbonnets contend the trial court’s summary judgment
was premature because “there was a substantial amount of discovery yet to be completed.”
- 11 -
04-12-00711-CV
Although Texas Rule of Civil Procedure 166a(i) requires a party to wait until there has been
adequate time for discovery before moving for a no-evidence summary judgment, Rule 166a(a)
permits a party to file a traditional motion for summary judgment “at any time after the adverse
party has appeared or answered.” TEX. R. CIV. P. 166a(a), (i); Reynolds v. Murphy, 188 S.W.3d
252, 258 n.8 (Tex. App.—Fort Worth 2006, pet. denied). Furthermore, even if this were an
exceptional case where discovery should be permitted before a traditional motion for summary
judgment can be granted, we hold that the parties had an adequate opportunity to obtain
discovery. See Reynolds, 188 S.W.3d at 258 n.8 (citing Nelson v. PNC Mortgage Corp., 139
S.W.3d 442, 446 (Tex. App.—Dallas 2004, no pet.)) (explaining that a traditional motion for
summary judgment may not be appropriately granted in some rare, factually specific cases if
there has not been adequate time for discovery).
In order to preserve a claim of inadequate opportunity for discovery, the party requesting
additional time must file an affidavit stating its reasons for needing additional discovery or a
verified motion for continuance. Tenneco Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647
(Tex. 1996). Charbonnet preserved her claim by filing a verified motion for continuance that
sought more time to obtain depositions of Appellees’ corporate representatives and others. This
motion was denied by the trial court.
We review a trial court’s denial of a motion for continuance for an abuse of discretion.
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004); Tenneco, 925 S.W.2d at
647. “A trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable
as to amount to a clear and prejudicial error of law.” Joe, 145 S.W.3d at 161. When reviewing a
trial court’s denial of a motion for continuance seeking additional time for discovery, we
consider the following nonexclusive list of factors: (1) how long the suit has been pending; (2)
the materiality of and reason for the discovery sought; and (3) whether due diligence has been
- 12 -
04-12-00711-CV
exercised to obtain the discovery sought. Id.; City of San Antonio v. En Seguido, Ltd., 227
S.W.3d 237, 240 (Tex. App.—San Antonio 2007, no pet.). Rule 166a “does not require that
discovery be completed, only that there was adequate time for discovery.” Rankin v. Union
Pacific R.R. Co., 319 S.W.3d 58, 67 (Tex. App.—San Antonio 2010, no pet.).
All three of the factors mentioned above weigh against the Charbonnets. First, the
Charbonnets’ suit was filed on April 15, 2011, and the first motion for summary judgment was
not filed until April 27, 2012. In addition, no hearing on the motions for summary judgment was
held until June 25, 2012. Accordingly, the Charbonnets had over a year to conduct discovery.
The Charbonnets contend they need additional time for discovery because the last answer to their
latest amended petition was filed only three weeks before the motion for summary judgment was
filed. This fact, however, is of little significance. The motions for summary judgment in this
case were predicated on the affirmative defense of release of liability, and release of liability was
first asserted as a defense to the Charbonnets’ claim in an original answer filed on May 13, 2011.
Therefore, the Charbonnets had knowledge of and could have sought discovery related to the
release for almost a year before the motions for summary judgment were filed.
With regard to the materiality of and reason for needing additional discovery, the
Charbonnets provide no specific reason why the additional depositions are material to their case.
Instead, the Charbonnets generally assert that they need the deposition of various corporate
representatives and “other individuals with knowledge of relevant facts surrounding the putative
release.” The Charbonnets do not name most of the corporate representatives or “other
individuals” they seek to depose, nor do they state what information they expect any of these
individuals to provide. See TEX. R. CIV. P. 252. Moreover, it is unlikely that any further
testimony or evidence would aid the trial court in its decision on Appellees’ motions for
- 13 -
04-12-00711-CV
summary judgment because the validity of a release of liability is a question of law to be decided
by the court. Dresser, 853 S.W.2d at 509.
Finally, the Charbonnets have wholly failed to make a showing of due diligence.
Although the Charbonnets contend they had an agreement with Appellees that multiple other
corporate representatives and witnesses would be produced for depositions, they cite no evidence
of such agreement. In contrast, Appellees point to a Rule 11 Agreement made on January 9,
2012 that shows the parties’ agreement that Farouk would produce Andrew Guerra for
deposition in February. The agreement also reflects Appellees’ intention to “file their summary
judgment motion on the release and have it set for hearing as soon as possible.” Thus, this
agreement reflects the Charbonnets’ intention to allow the summary-judgment motions to
proceed in exchange for the opportunity to depose Guerra.
Based on the length of time the Charbonnets had notice Appellees were asserting the
release of liability as an affirmative defense, the vague and general assertions of the need for
additional discovery, and the absence of evidence suggesting the exercise of due diligence in
obtaining discovery prior to the filing of the motion for summary judgment or the hearing
thereon, we conclude the trial court did not abuse its discretion in denying the Charbonnets’
motion for continuance.
CONCLUSION
Because the release signed by Cathy was conspicuous and because the Charbonnets had
adequate time to obtain discovery, we conclude the trial court did not err in granting summary
judgment in favor of Appellees. The Charbonnets’ remaining claims were not properly
preserved for appellate review. Accordingly, we overrule the Charbonnets’ points of error and
affirm the judgment of the trial court.
Catherine Stone, Chief Justice
- 14 -