Bandier Realty Partners, LLC and Switchback Ventures, LLC v. SSC Opportunity Partners, LLC

ACCEPTED
01-13-00782-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
4/2/2015 9:38:58 AM
CHRISTOPHER PRINE
CLERK

FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
DAVID M. GUNN
BOARD CERTIFIED ♦ CIVIL APPELLATE LAW 4/2/2015Direct
9:38:58
(713)AM
951-6290
TEXAS BOARD OF LEGAL SPECIALIZATION dgunn@beckredden.com
CHRISTOPHER A. PRINE
Clerk
April 2, 2015

Re: No. 01-13-00782-CV; Bandier Realty Partners, LLC and Switchback
Ventures, LLC v. SSC Opportunity Partners, LLC and Douglas Britton
Trial Court Cause No.: 2011-43194

Via Efiling
Mr. Christopher H. Prine, Clerk
First Court of Appeals
301 Fannin, Room 208
Houston, Texas 77002-2066

Dear Mr. Prine:

This case is set for submission on April 14, 2015. Appellants respectfully submit
this letter to advise the Court of a recent decision. Please distribute copies of this letter to
Justices Keyes, Bland and Massengale.

The decision is National Property Holdings, L.P. v. Westergren, 58 Tex. Sup. Ct.
J. 204 (Jan. 9, 2015) (copy attached as Exhibit A). Like this case, it involves (1) a real
estate dispute, (2) a release, and (3) an effort to avoid the release through allegations of
fraudulent inducement.

The party who signed the release claimed that he signed it “in a hurry.” Id. at 206.
But the Supreme Court held that there was no justifiable reliance: “Westergren chose not
to read the release before he signed it in the presence of a notary and instead relied on
Plank’s representations regarding its contents. We hold that, as a matter of law, that
reliance was not justifiable.” Id. at 206.

The decision matters because Appellants have challenged justifiable reliance.
Plaintiff SSC says that it signed the release without “time to review adequately or to
suggest changes.” Br. of Appellees at 32; see id. at 33 n.20 (“extremely limited amount
of time”). That argument is foreclosed by the Supreme Court’s Westergren decision.
Westergren has become final, and the mandate has issued. Under Westergren, this Court
should reverse and render.

1693.001/558252
Mr. Christopher H. Prine, Clerk
First Court of Appeals
April 2, 2015
Page 2

Thank you for your courtesy and assistance.

Respectfully submitted,

/s/ David M. Gunn

David M. Gunn
Counsel for Appellants
DMG/ig
Enclosure

cc: All Counsel of Record (Via Efiling)

1693.001/558252
Tab A
204 THETEXASSUPREMECOURTJOURNAL Vol. 58

NATIONAL PROPERTY HOLDINGS, as a matter of law because the record con-
L.P., MICHAEL PLANK clusively establishes that he had a rea-
AND RUSSELL PLANK sonable opportunity to read the release
before he signed it and elected not to do
so . We also conclude that the oral side
vs. agreement did not satisfy the statute of
frauds and that Westergren did not
GORDON WESTERGREN breach the mediated settlement agree-
ment or the release by filing this suit. For
these reasons, we reverse in part and af-
No. 13-0801 firm in part the court of appeals' judgment
and reinstate in part the trial court's take-
nothing judgment and award of costs.
From Harris County, Fourteenth
Court of Appeals District. The facts giving rise to the parties'
claims relate to a 190-acre tract of land in
La Porte, Texas. The parties hotly dispute
(Opinion of the Court of Appeals, 409 the facts, but because we are reviewing
S.W.3d 110.) the reversal of a judgment notwithstand-
ing a jury verdict in favor of Westergren,
Under the prov1s10ns of Rule 59.1, we "credit evidence favoring the jury ver-
Texas Rules of Appellate procedure, the dict if reasonable jurors could, and disre-
petition for review is granted and, without gard contrary evidence unless reasonable
jurors could not." Tanner v. Nationwide
hearing oral argument, the judgment of
the Court of Appeals is affirmed in part Mut. Fire Ins. Co., 289 S.W.3d 828, 830
and reversed in part and the judgment of (Tex. 2009) (quoting Cent. Ready Mix
the trial court is reinstated. (Per Curiam Concrete Co., Inc. v. Islas, 228 S.W.3d 649,
opinion.) 651 (Tex. 2007)). The evidence favoring
the jury verdict establishes that Wester-
gren was the first to enter into an option
For Petitioners: Haynes & Boone contract to purchase the highly desired
LLP, Mark Ryan Trachtenberg, Michael J. property. When he discovered that the
Mazzone and Polly Benton Graham, Hou- owner had later entered into similar op-
ston, Texas. tion contracts with two other interested
For Respondent: Provost Umphrey buyers, he sued all three and filed a lis
Law Firm LLP, John Andrew Cowan and pendens against the property, preventing
Mark C. Sparks, Beaumont, Texas. any further development or sale (the
Haynsworth litigation). The three defend-
ants appeared and filed counterclaims.
Meanwhile, several developers, including
National Property Holdings, L.P. (NPH),
were also interested in acquiring the
PERCURIAM
property but could not pursue it while the
Haynsworth litigation remained pending.
This dispute involves a mediated set- In an apparent attempt to overcome that
tlement agreement, an oral side agree- obstacle, Russell Plank, who was NPH's
ment, and a subsequent written release. A consultant, contacted Westergren's attor-
pivotal issue is whether Gordon Wester- ney and offered to help pay Westergren's
gren released his claims for breach of the attorney's fees in the Haynsworth litiga-
oral side agreement or whether, as he tion. When asked why NPH would do
insists and the jury found, he was fraudu- that, Plank replied: "[because] we're going
lently induced into signing the release. On to be partners." Consistent with Plank's
that issue, we conclude that Westergren's call, NPH and Plank each sent Wester-
fraudulent inducement defense must fail gren's attorney a $5,000 check.
Vol. 58 THETEXASSUPREMECOURTJOURNAL 205

When the lawsuit later went to medi- viewed the release and discovered what he
ation, Plank attended on behalf of NPH, had signed. When NPH, Plank, and
although NPH was not a party to the suit. Plank's brother Michael (collectively, the
The mediation Was successful: NPH Plank parties) refused to make any addi-
agreed to purchase the property, and all tional payments, Westergren filed this
defendants agreed to release their rights suit against them, asserting claims for
to the property and their counterclaims breach of the oral contract, breach of
against Westergren. All of the parties lat- partnership duties, common law and stat-
er memorialized the settlement in a writ- utory fraud, and attorney's fees . The
ten Mediated Settlement Agreement Plank parties asserted that Westergren
(MSA), in which Westergren and the de- had released all claims by signing the re-
fendants agreed to release any lis pendens lease and that the oral contract was unen-
and all claims asserted by and between forceable under the statute of frauds.
the parties, including any cross-claims They also filed counterclaims for breach of
and counterclaims, and NPH agreed to contract, asserting that Westergren
purchase the property. Separately, in ex- breached the MSA and the release by fil-
change for Westergren's agreement to ing this suit against them .
settle the lawsuit, release the lis pendens, The jury found in Westergren's favor
and allow NPH to purchase the property, on all claims, although it also found that
Plank orally promised Westergren that he the Plank parties' statutory and common
would become a partner with Plank and law fraud caused Westergren "$0.00"
his brother Michael, who was president of damages. On the Plank parties' motion,
NPH's corporate general partner, and however, the trial court granted a judg-
would receive $1 million plus an interest ment notwithstanding the verdict and
in the profits from NPH's development entered a take-nothing judgment as to all
and future sale of the property (the oral parties, assessing costs against Wester-
contract). The MSA did not memorialize gren. Westergren appealed and the Plank
the oral promises that Plank made to parties filed cross-appeals. With one jus-
Westergren. After Westergren released tice dissenting, the court of appeals con-
the lis pendens and the parties dismissed cluded, inter alia, that there was more
the suit, NPH and an affiliated company than a scintilla of evidence to support the
purchased the property. A few months jury's findings that (1) an oral contract
later NPH sold 20 of the 190 acres. When existed between W estergren and Plank,
Westergren asked for the promised $1 (2) Plank breached the oral contract, (3)
million and a share of the profits, Plank NPH paid the $500,000 pursuant to the
replied that they could only pay Wester- oral contract (not as consideration for the
gren $500,000 "right now." release), (4) this partial performance ex-
When Plank and Westergren later cepted the oral contract from the statute
met, Plank presented a $500,000 check of frauds, (5) Plank fraudulently induced
from NPH, and in return, Westergren Westergren to sign the release, and (6)
signed a release. The title of the docu- Westergren did not breach the MSA or the
ment, stated in bold and underlined capi- release by suing the Plank parties. Hav-
tal letters, read "AGREEMENT AND ing found in Westergren's favor on his
RELEASE." The release stated that breach of contract claim, the court con-
Westergren agreed to relinquish any and cluded that it did not need to address his
all interest in the property and all claims claims for common law and statutory
against NPH, Michael Plank, and other fraud and for breach of partnership du-
listed parties in exchange for the total ties. The court awarded costs to Wester-
payment of $500,000. Without reading the gren and remanded the case for a new
release, Westergren signed it in front of a trial on Westergren's claim for attorney's
notary and accepted the check. Several fees.
months later, after Westergren had not Before this Court, the Plank parties
received any additional payments, he re- contend that the evidence was legally in-
206 THETEXASSUPREMECOURTJOURNAL Vol. 58

sufficient to support the jury's finding of the $1 million that Plank had
that Plank fraudulently induced Wester- promised in the oral contract;
gren to sign the release, the release was
therefore valid and extinguished all At the meeting, Plank never men-
claims under the oral contract, and the tioned that the document was a re-
jury's related findings are thus irrelevant lease, and instead told Westergren
and cannot support the judgment. To that the release "was a receipt. It's
overcome the jury's verdict, the Plank nothing. You don't have to worry
parties must show that there was no evi- about it";
dence to support the jury's finding of
- Plank also told Westergren he
fraudulent inducement, no reasonable
would get "the other half' of the $1
jury could conclude otherwise, and thus
million when "we get another
the release was valid as a matter of law.
building coming out of the
Tanner, 289 S.W.3d at 830. ground";
Fraudulent inducement "is a particu-
lar species of fraud that arises only in the - Westergren did not read the re-
context of a contract." Haase v. Glazner, lease because he was "in a hurry"
62 S.W.3d 795, 798 (Tex. 2001). To prove and did not have his reading
that Plank fraudulently induced him to glasses with him;
sign the release, Westergren had to estab-
lish that (1) Plank "made a material rep- - Although he wore a watch that
resentation"; (2) Plank's "representation had a magnifying glass, which he
was false and was either known to be false could have used to read the re-
when made or made without knowledge of lease, he did not use it;
its truth"; (3) Plank's "representation was
He did not ask Plank or the notary
intended to be and was relied upon by the
to read the release to him; and
injured party"; and (4) Westergren's "inju-
ry complained of was caused by the reli- - Instead, he relied on Plank's
ance." In re Int'l Profit Assocs., Inc., 274 statements and representations
S.W.3d 672, 678 (Tex. 2009) (citing Am. and signed the release without
Tobacco Co. v. Grinnell, 951 S.W.2d 420, reading it first.
436 (Tex. 1997)); Schlumberger Tech.
Corp. v. Swanson, 959 S.W.2d 171, 181
(Tex. 1997). The Plank parties argue that Under the facts of this case, we agree
there is no evidence to establish the with the Plank parties that Westergren
fourth element in this case. Specifically, could not justifiably rely on Plank's
they contend that no evidence supports a statements about the content of the re-
finding that Westergren's reliance on lease, which directly conflict with the con-
Plank's representations was "justifiable," tent of the release itself. On its face, the
because the release's plain language con- release's intent and effect is obvious and
flicted with Plank's representations, and unambiguous. Consistent with its large,
Westergren had ample opportunity to bolded, capitalized, and underlined title
read the release and chose not to do so. ("AGREEMENT AND RELEASE"), and
At trial, Westergren admitted that he utilizing bolded and capitalized key words
did not read the release before he signed it within its text, the release provided that
and accepted the $500,000 check. Specifi- WESTERGREN . . . in consider-
cally, he explained that: ation of the sum of FIVE HUN-
In a telephone conversation before DRED THOUSAND AND
the meeting at which Plank deliv- NO/lOOths DOLLARS
ered the $500,000 check, Plank ($500.000.00), and other good and
told Westergren that the check valuable consideration, the re-
would be payment of the first half ceipt of which of considerations
Vol. 58 THETEXASSUPREMECOURTJOURNAL 207

being hereby acknowledged and Westergren chose not to read this release
the adequacy of which considera- before he signed it in the presence of a
tions being hereby confessed, ... notary and instead relied on Plank's rep-
does hereby fully and uncondi- resentations regarding its contents . We
tionally RELEASE AND FOR- hold that, as a matter oflaw, that reliance
EVER RELINQUISH any and was not justifiable.
all right, title, and/or interest .. . It is well-established that "[t]he recip-
in or to (i) . . . the "Subject ient of a fraudulent misrepresentation is
Property;" . .. (ii) [NPH and cer- not justified in relying upon its truth if he
tain affiliated companies] (collec- knows that it is false or its falsity is obvi-
tively, the "Owning Entities"); ous to him." RESTATEMENT (SECOND)
and (iii) any income, rent, profits, OF TORTS § 541 (1977). Thus, as Texas
or other proceeds related to [the courts have repeatedly held, a party to a
property or the Owning Entities] written contract cannot justifiably rely on
. . . (collectively, the "Income oral misrepresentations regarding the
and Proceeds") .... contract's unambiguous terms. See, e.g.,
Thigpen v. Locke, 363 S.W.2d 247, 251
In addition, and for the same (Tex. 1962) ("In an arm's-length transac-
consideration, the receipt of tion the defrauded party must exercise
which considerations being here- ordinary care for the protection of his own
by acknowledged and the ade- interests . . .. [A] failure to exercise rea-
quacy of which consideration be- sonable diligence is not excused by mere
ing hereby confessed, Westergren confidence in the honesty and integrity of
. . . does hereby fully and uncon- the other party.") (citation omitted). This
ditionally REMISE, RELEASE is particularly true when the party had a
AND FOREVER DISCHARGE reasonable opportunity to review the writ-
... MICHAEL J. PLANK, THE ten agreement but failed to exercise ordi-
PLANK COMPANIES, INC., nary care to do so. See Tex. & Pac. Ry. Co.
the Owning Entities, and [others] v. Poe, 115 S.W.2d 591, 592 (1938) (hold-
.. . of and from any and all man- ing that evidence was legally insufficient
ner of action and actions, cause to support a finding of fraud where party
and causes of action, and all who relied on oral statement that release
claims and demands whatsoever, was receipt had an opportunity to read
... which [Westergren] ... can, the document which plainly identified
shall or may have for, upon or by itself as a release); see also Thigpen, 363
reason of any matter, cause [or] S.W.2d at 251.
occurrence . . . proximately or The court of appeals concluded that
remotely, from the beginning of Westergren did not have an adequate op-
the world to and through the day portunity to review the release. Under
of the date of this release arising these facts, we disagree . Westergren's
out of, relating to, or pertaining testimony conclusively established that he
in any way, directly or indirectly, had ample opportunity to read the release
to: (i) the Subject Property; but instead chose to rely solely on Plank's
(ii) the Owning Entities; and representations because he was "in a hur-
(iii) the Income and Proceeds. ry" and did not have his reading glasses
This release is intended to re- with him. 1 Yet he acknowledged that he
lease all liability described above
of any character for damages of
1 The court of appeals thought it relevant
any type or nature ... with re-
spect to the matters released that Plank knew that Westergren had an at-
torney and had communicated with him but did
above.
not involve him in the drafting of the Release or
send him a copy. 409 S.W.3d at 126-28. While
these facts might be relevant to the issue of
208 THETEXASSUPREMECOURTJOURNAL Vol. 58

could have used the magnifier on his It will not do for a man to enter
watch or had someone read the document into a contract, and, when called
to him, and no evidence indicates that upon to respond to its obligations,
anyone prevented him from doing so. See to say that he did not read it
409 S.W.3d 128, 151 (Frost, J., dissenting) when he signed it, or did not
(finding "no legal basis for the majority's know what it contained. If this
conclusion" that Plank used "trickery or were permitted, contracts would
artifice" to prevent Westergren from read- not be worth the paper on which
ing the release). Instead of excusing a they are written. But such is not
party's failure to read a contract when the the law. A contractor must stand
party has an opportunity to do so, the law by the words of his contract; and,
presumes that the party knows and ac- if he will not read what he signs,
cepts the contract terms. See, e.g., Poe, he alone is responsible for his
115 S.W.2d at 592; Indem. Ins. Co. of N. omission.
Am. v. W.L. Macatee & Sons, 101 S.W.2d
553, 556 (1937); cf In re Lyon Fin. Servs.,
Upton v. Tribilcock, 91 U.S. 45, 50 (1875);
Inc., 257 S.W.3d 228, 232 (Tex. 2008); In
see also Indem. Ins., 101 S.W.2d at 556
re Prudential Ins. Co. of Am., 148 S.W.3d
("One is presumed to intend what he does
124, 133-34 (Tex. 2004); Dresser Indus.,
or undertakes to do by the terms of a writ-
Inc. v. Page Petroleum, Inc., 853 S.W.2d
ten instrument voluntarily signed by
505 (Tex. 1993). Here, Westergren's deci-
him."). We conclude that Westergren's
sion not to read the release and instead to
evidence was legally insufficient to sup-
rely on Plank's representations because
port the jury's finding that he justifiably
he did not have his glasses and was "in a
relied on Plank's representations, and
hurry" was not justifiable.
thus constitutes no evidence of fraudulent
As we have recently observed, it is not inducement to negate the release's validi-
the courts' role "to protect parties from ty.
their own agreements." El Paso Field
Servs., L.P. v. MasTec N. Am., Inc., 389 However, the parties also dispute the
scope of the release. In particular, the jury
S.W.3d 802, 810-11 (Tex. 2012). Thus, as
the United States Supreme Court ex- found that the oral contract was an
agreement only between Westergren and
plained long ago:
Plank, in Plank's individual capacity, and
Westergren argues that the release did
not release any claims against Plank. We
need not resolve this issue, however, be-
whether Westergren could understand the Re-
cause we agree with Plank's alternative
lease had he read it, we disagree that they
could support a conclusion that he had no rea- argument that the oral contract is unen-
sonable opportunity to read it. At a minimum, forceable under the statute of frauds. Un-
the language of the Release unambiguously der the statute of frauds, "a contract for
made it clear that it was a "RELEASE," and the sale of real estate" is unenforceable
that Westergren was releasing all claims to the unless it is in writing and signed by the
property and against NPH and Michael Plank person to be charged. TEX. BUS. & COM.
related to the property, and there is no basis to CODE § 26.01. Whether a contract comes
conclude that he was incapable of understand- within the statute of frauds is a question
ing that. In fact, Westergren's ability to under- of law, which we review de novo. Dynegy,
stand the Release is not disputed, and his own
testimony establishes that he was a sophisti-
Inc. v. Yates, 422 S.W.3d 638, 642 (Tex.
cated businessman who had personally partici- 2013). Westergren concedes that the con-
pated in many contractual transactions. Any tract at issue was for the sale of real es-
issue over whether he needed help to under- tate and was not in writing or signed, but
stand it would be irrelevant when, by his own he relies on the "partial performance ex-
admission, he made no effort to read it. ception" to the statute of frauds. Under
this exception, he contends, an otherwise
Vol. 58 THE TEXAS SUPREME COURT JOURNAL 209

unenforceable oral contract becomes en- must be to fulfill a specific agreement. If
forceable in equity if one party partially the evidence establishes that the party
performs its obligations and "denial of who performed the act that is alleged to
enforcement would amount to a virtual be partial performance could have done so
fraud." Westergren contends that Plank for some reason other than to fulfill obli-
partially performed his obligations under gations under the oral contract, the excep-
the oral contract by paying half of the tion is unavailable.
promised $1 million payment, and thus Westergren contends that Plank's
the oral contract is enforceable in equity payment of $500,000 constitutes partial
despite the statute of frauds. performance of the oral contract in which
Without adopting Westergren's de- Plank agreed to pay $1 million, and that
scription of the "partial performance ex- the payment is "unequivocally referable"
ception,"2 we conclude that, even under only to that contract. 3 This is so, he con-
his theory, the exception does not apply tends, "because the release itself makes
here . As argued by Westergren, one of the sense only in the context of an attempt to
exception's requirements is that the per- settle Westergren's claims based on the
formance on which the party relies must (oral contract]," and "the jury was free to
be "unequivocally referable to the agree- conclude that the .only thing the release
ment." Chevalier, 213 S.W.2d at 533 (em- might plausibly have sought to compro-
phasis added) . In other words, the pur- mise was the (oral contract] itself." We
pose of the alleged acts of performance disagree. The fact that the payment was
made to "settle" and "compromise"
2 On the few occasions that this Court has
Westergren's "claims based on the (oral
discussed this equitable exception to the stat- contract]" does not mean it was made in
ute of frauds , we have made it clear that it performance of obligations under that
requires more than just one party's perfor- contract. To the contrary, it establishes
mance of some obligation under the alleged oral that the payment was made to avoid per-
contract. See, e.g., Chevalier v. Lane's, Inc., 213 formance of the oral contract. On its face,
S.W.2d 530, 533 (Tex. 1948) (noting that even the release states that Westergren's
'"full performance,' in the sense of full payment agreement to release all claims against
of the consideration by the purchaser, is held the property, the "Owning Entities," and
not to make the contract enforceable unless all "Income and Proceeds" was made "in
accompanied by other circumstances, such as
change of possession and erection of valuable
consideration of the sum of FIVE HUN-
improvements"). For example, we explained DRED THOUSAND AND NO/lOOths
that "to relieve a parol sale of land from the DOLLARS ($500.000.00), and other good
operation of the statute of frauds, three things and valuable consideration, the receipt of
were necessary: 1. Payment of the considera- which of considerations being hereby
tion, whether it be in money or services. 2. Pos- acknowledged and the adequacy of which
session by the vendee. And 3. The making by considerations being hereby confessed."
the vendee of valuable and permanent im- Contrary to Westergren's arguments, the
provements upon the land with the consent of payment cannot be unequivocally refera-
the vendor; or, without such improvements, the
ble to the oral contract, because the re-
presence of such facts as would make the
transaction a fraud upon the purchaser if it lease that Westergren signed expressly
were not enforced. Payment of the considera- states that it was made in exchange for
tion, though it be a payment in full, is not suffi- Westergren's agreement to the release.
cient." Hooks v. Bridgewater, 229 S.W. 1114,
1116 (Tex. 1921). In light of Westergren's fail- 3 Westergren also contends that he fully per-
ure to establish that Plank's $500,000 payment
was "unequivocally referable" to the oral con- formed the agreement by releasing the /is pen-
tract, we need not and do not provide a com- dens and giving up his contractual right to the
plete explanation of all of the partial perfor- property. Like the $500,000 payment, these
mance exception's requirements here. actions are not unequivocally referable to the
oral contract where the MSA explicitly requires
these acts by Westergren.
210 THETEXASSUPREMECOURTJOURNAL Vol. 58

Furthermore, the payment could not be promised to make Westergren a partner
performance of the oral contract because with him and his brother is unenforceable
it was made by NPH, which was not a under the statute of frauds. Westergren's
party to the oral contract-but was a par- claim for breach of partnership duties
ty to the release. therefore must fail as well.
To find partial performance of the Finally, we turn to the Plank parties'
oral contract, the court of appeals relied argument that the court of appeals erred
upon Plank's oral representation that the in affirming the trial court's take-nothing
payment was the first half of the $1 mil- judgment on their counterclaims against
lion owed under the oral contract. A party Westergren for breach of the release and
cannot rely upon oral representations to the MSA. The Plank parties contend that
satisfy the partial performance exception, a party who releases a claim and later
however. Rather, the kind of performance files suit on that claim necessarily
that justifies the exception to the statute breaches the release agreement. We disa-
of frauds is "performance which alone and gree. Although the Plank parties rely on a
without the aid of words of promise is un- number of cases to support their argu-
intelligible or at least extraordinary un- ment, none of those cases reads a cove-
less as an incident of ownership, assured, nant not to sue into a release that does
if not existing." Chevalier, 213 S.W.2d at not include such a promise. They also rely
533 (emphasis added). The statute of on one case in which a court stated that a
frauds "unmistakably declares a policy covenant not to sue can be construed as a
that parol testimony is too unreliable for release, arguing that the reverse must
proof of certain types of agreement, and also be true. See Dicker v. Lomas & Net-
courts must give heed to that policy as tleton Fin. Corp., 576 S.W.2d 672, 675
well as to considerations of an equitable (Tex. Civ. App.-Texarkana 1978, writ
character." Id . Therefore, Westergren refd n.r.e.) (noting that "an agreement not
cannot rely on Plank's oral representa- to sue can be construed as a release").
tions to support a finding that the pay- Westergren, in turn, argues that the re-
ment was unequivocally referable to the lease provides only an affirmative defense
oral contract. We hold that there is noth- because it provides only that it "may be
ing in the nature of these acts that sup- pleaded as an absolute and final bar to
ports a jury finding of partial performance any or all suit" and does not include an
to except the oral contract from the stat- express or implied covenant not to sue or
ute of frauds . to indemnify the released parties. We
In summary, we conclude that there must review the MSA and release lan-
is no evidence to support the jury's find- guage to determine whether either
ings that Plank fraudulently induced agreement includes a contractual obliga-
Westergren to sign the release, or that the tion not to sue.
oral contract is excepted from the statute The intent of the MSA was to settle
of frauds. the suit between Westergren and the oth-
We now turn to Westergren's tort er parties to the initial litigation, who are
claims for common law fraud, statutory not before the Court in this case. We find
fraud, and breach of partnership duties. no language in the MSA in which Wester-
Although the jury found in favor of gren agreed not to sue the Plank parties.
Westergren on the liability questions for In fact, the agreement contemplates that
his common law and statutory fraud the parties may bring suit by providing
claims, the jury awarded him no damages that the parties "may not recover attor-
for either claim. Westergren did not ap- ney's fees or costs in any litigation
peal those findings. He therefore cannot brought to construe or enforce this agree-
recover damages on his fraud claims. With ment. Otherwise, if unsuccessful, the pre-
respect to his partnership claim, we have vailing party or parties shall be entitled to
held that the oral contract in which Plank recover reasonable attorney's fees and
expenses." This provision indicates that a
Vol. 58 THE TEX.AS SUPREME COURT JOURNAL 211

suit may be brought, even though the ties' counterclaims for breach of contract
agreement is in effect, and in no way sug- and attorney's fees against Westergren.
gests that filing a suit concerning the TEX. R. APP. P. 59.1
MSA's released claims results in a breach.
Therefore, Westergren's claims did not
breach the MSA. Opinion Delivered: January 9, 2015
We also find that the release is un-
ambiguous as to this point. The parties
intended the release "to release all liabil-
ity described" within the agreement. Like
the MSA, it includes no language barring
Westergren from bringing suit or stating
that he would breach the release by doing
so. To the contrary, this agreement has a
provision stating essentially that should a
future suit be brought, the release may be
pleaded as an absolute bar to the suit-in
other words, it provides the parties with
an affirmative defense. 4 See TEX. R. CIV.
P. 94 (listing affirmative defenses, includ-
ing release). Although the release pro-
vides an affirmative defense to future
suits, we cannot construe it as including a
covenant not to sue where, in fact, the
plain language does not bar future suits.
Just as Westergren is bound to the actual
language of the release, so are the Plank
parties. The court of appeals, therefore,
did not err in affirming the trial court's
judgment based on the jury verdict in fa-
vor of Westergren on the Plank parties'
claims for breach of the MSA and release.
We grant the Plank parties' petition
for review, and without hearing oral ar-
gument, we (1) reverse the court of ap-
peals' judgment as to Westergren's claim
for breach of the oral contract, Wester-
gren's claim for attorney's fees, and the
trial court's allocation of court costs, (2)
reinstate the trial court's judgment that
W estergren take nothing on his claims for
breach of the oral contract and for attor-
ney's fees and the trial court's taxing of
court costs against Westergren, and (3)
affirm the court of appeals' take-nothing
judgment on Westergren's partnership
and fraud claims and on the Plank par-

4 The release states that it "may be pleaded

as an absolute and final bar to any or all suit or
suits pending or which may hereafter be filed
or prosecuted."