In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-17-00107-CV
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KEVIN GEHEB, Appellant
V.
TRANSCANADA KEYSTONE PIPELINE, LP, Appellee
_______________________________________________________ ______________
On Appeal from the 58th District Court
Jefferson County, Texas
Trial Cause No. A-198,034
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MEMORANDUM OPINION
Appellant, Kevin Geheb, appeals from a judgment the trial court rendered
based on TransCanada Keystone Pipeline, LP’s motion for summary judgment,
which is based, in part, on Keystone’s affirmative defense of release. Because the
scope of the release that Geheb signed includes all the claims on which Geheb’s suit
relies, we affirm.
1
Background
In 2008, Geheb leased a tract of land from Michael Gaus, where Geheb
operated a farm. In 2010, Gaus sold Keystone an easement, which allowed Keystone
to build an underground pipeline across Geheb’s farm. When the construction
project reached Geheb’s farm in 2012, Geheb signed a release, in return for money,
that released Keystone from any damages that Keystone caused to Geheb’s 2012
crop. The 2012 Release, however, did not include damages that Geheb might suffer
after 2012.
When Keystone failed to complete its work on its pipeline across Geheb’s
farm by year-end 2012, Geheb and Keystone mutually agreed to the terms
memorialized in a second release, the 2013 Release. Unlike the 2012 Release, the
2013 Release is broader in its scope, as it contains no language limiting the scope of
the release to Geheb’s 2013 crop. The release clause that is in the 2013 Release
provides, in pertinent part:
Further, Owner,[1] on behalf of [himself/themselves], and any other
person or entity claiming by or through [him/them] hereby waive(s)
and release(s) and agree(s) to save, defend, hold harmless and
indemnify Keystone . . . from and against any and all claims, causes of
action, suits, debts, expenses, general damages, interest, costs and
demands whatsoever, at law and in equity, against Keystone, or any
person or entity related to Keystone, which arise out of, are connected
1
The 2013 Release contains language indicating that, as used in the release,
the term Owner referred to Geheb.
2
with, or relate in any way to Keystone’s acquisition of, or Owner’s
conveyance of, the Easement or Keystone’s proper exercise of its
timber rights granted under the Easement, including but not limited to,
any and all tree, crop, plant, timber, harvest or yield loss damages,
diminution of the value of the Property, or any other reasonably
foreseeable damages.
In December 2013, Gaus terminated Geheb’s lease for nonpayment of rent.
Approximately one year later, Geheb sued Keystone for damages, which he alleged
were related to Keystone’s failure to restore the surface on his farm to the condition
it was in prior to the date that Keystone built a pipeline across his farm. According
to Geheb’s petition, Keystone’s failure to properly restore the surface of his farm to
its prior condition made it impossible for him to farm the tract. Geheb’s petition
includes five theories of recovery: (1) inverse condemnation; (2) breach of
agreement; (3) tortious interference with his lease; (4) negligence; and (5) various
additional theories sounding in fraud.
When Keystone responded to Geheb’s suit, it filed a combined traditional and
no-evidence motion for summary judgment. In the traditional section of its motion,
Keystone asserted that Geheb had released it from all the claims that he was asserting
in his petition. In the no-evidence section of its motion, Keystone claimed that Geheb
could not prove the elements that he would be required to prove to establish that any
of his claims had merit.
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Following a hearing on Keystone’s combined motion, the trial court issued a
judgment dismissing each of Geheb’s claims. The judgment, however, fails to
specify the grounds on which the trial court decided to grant Keystone’s motion. On
appeal, Geheb argues, among other claims, that the 2013 Release did not cover the
claims he filed in his suit. According to Geheb, he did not release Keystone from
claims that are related to Keystone’s failure to restore the surface of his farm to the
condition it was in before Keystone constructed the pipeline. With respect to the trial
court’s no-evidence rulings, Geheb also argues that the trial court should have
allowed him more time to pursue discovery before ruling on Keystone’s motion.
Standard of Review
To prevail on its affirmative defense of release, Keystone was required to
conclusively establish that the release applied to Geheb’s claims. See Tex. R. Civ.
P. 166a(c); KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015). We review
rulings on motions for summary judgment using a de novo standard. See Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Because the trial court
in this case failed to specify the grounds on which it ruled on Keystone’s combined
motion for summary judgment, we presume the trial court granted the motion on all
the grounds that Keystone advanced in its motion. See Lightning Oil Co. v. Anadarko
E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017). Thus, if any one of the grounds
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on which Keystone moved for summary judgment has merit, we must affirm the trial
court’s ruling on Keystone’s motion. Id.
In this case, Keystone’s motion alleged that Geheb’s claims fell “squarely
within the express language of the 2013 Release.” If Keystone’s interpretation of the
language in the 2013 Release is correct, its defense of release would be dispositive
of the appeal. So, before addressing Geheb’s arguments about the ruling the trial
court made on the no-evidence section of Keystone’s combined motion, we address
whether the 2013 Release included the claims on which the suit was based.
Analysis
Before we address the proper scope of the 2013 Release, we note that the
parties do not dispute several facts, including that Geheb signed the 2013 Release,
and that Geheb received the consideration recited in the release. Also, Geheb has not
claimed that the language in the release is ambiguous or that his signature was
acquired by fraud. For the reasons explained below, we construe the release clause
as sufficiently broad to include the claims on which Geheb based his suit for two
reasons. First, the which clause that follows the broad language the parties used when
describing the scope of the intended release is a nonrestrictive clause that does not
narrow the release’s scope. Second, even if the parties intended the which clause to
be used in a restrictive sense, Geheb’s claims fall within the scope of the which
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clause because Keystone’s failure to restore the surface of Geheb’s farm relates in
some manner to Keystone’s acquisition of the easement.
During the proceedings in the trial court, Geheb argued that the scope of the
2013 Release was limited to “a portion of Geheb’s 2013 rice crop which Geheb could
not plant due to pipeline construction[,]” that he did not release any claim for
recovering restoration costs on the farm, and that he did not release any claim related
to the losses he suffered beginning in 2014 and thereafter because he could no longer
farm the tract. Geheb expands upon those arguments in his appellate brief,
suggesting for the first time that the scope of the 2013 Release is limited to “damages
attributable to or arising from [Keystone’s] proper use of its rights granted pursuant
to that certain Permanent Easement[.]” (emphasis in Geheb’s brief).
In determining the proper scope of the 2013 Release, our task is to ascertain
the true intentions of the parties, as the parties expressed their intent in the four
corners of their release. See Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of
Am., 341 S.W.3d 323, 333 (Tex. 2011). When construing the release, we give its
terms “their plain, ordinary, and generally accepted meaning unless the instrument
shows that the parties used them in a technical or different sense.” Heritage Res.,
Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996).
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In arguing that the scope of the release did not include claims arising from
Keystone’s failure to restore the surface of the farm, Geheb ignores the release clause
and focuses on the sentence that precedes it. But the sentence preceding the language
describing the scope of the release is not the only sentence in the release that defines
its scope. The sentence Geheb focuses in his argument provides, in pertinent part:
For and in consideration of [an amount certain paid by
Keystone], receipt of which is hereby acknowledged, Kevin Geheb,
Tenant, whose address is [address] (“Owner”), does hereby
acknowledge receipt of payment in full and in advance for all tree, crop,
plant, timber, harvest or yield loss damages, diminution of the value of
the Property (if any), and/or any other reasonably foreseeable damages
attributable to or arising from Keystone’s proper exercise of its rights
granted pursuant to that [Easement granted to Keystone by Gaus.][2]
Geheb’s arguments suggest that the proper exercise of its rights provision in
the above quoted sentence limits the scope of the release to Keystone’s operations
because they were, according to the argument he makes, inconsistent with the
easement that Keystone acquired from Gaus. According to Geheb, the easement
Keystone acquired from Gaus required Keystone to return the surface of Geheb’s
farm to the condition that it was in before Keystone built the pipeline across his farm.
Nevertheless, the easement that Gaus granted to Keystone necessarily
anticipated that Keystone would be disturbing the soil in building the pipeline across
2
Emphasis, as used by the parties, in their 2013 Release.
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the property that Gaus owns. And, even if we were to agree that Keystone’s
obligation to restore the surface of the farm is a right that Geheb could enforce, a
matter we need not decide, Keystone argues that Geheb released all claims that are
at issue in this appeal.
We note that the release clause found in the 2013 Release broadly applies to
“any and all claims, causes of action, suits, debts, expenses, general damages,
interest, costs and demands whatsoever, at law and in equity[.]” Where we have
ended the clause just quoted with a period, the parties completed the sentence
containing language of the release with a nonrestrictive clause, punctuated with a
comma and starting with the word which. In construing the meaning the parties
intended for the which clause that is found in the 2013 Release, we must give the
terms the parties used in the instrument their plain meaning, and we have harmonized
any conflicts between the various sentences in the release so that none are rendered
meaningless. See Italian Cowboy Partners, 341 S.W.3d at 333.
Generally, clauses that begin with which are given a nonrestrictive meaning.
See NEW OXFORD AMERICAN DICTIONARY 1968 (3d ed. 2010) (stating that when
using the term which, in the United States, should “be employed only for
nonrestrictive (or nonessential) clauses[,]” in contrast to a clause that begins with
the word that, a restrictive clause that “identifies a particular thing”); Bryan A.
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Garner, GARNER’S MODERN AMERICAN USAGE 806 (3d ed. 2009) (“A restrictive
clause is essential to the grammatical and logical completeness of a sentence. A
nonrestrictive clause, by contrast, is so loosely connected with the essential meaning
of the sentence that it could be omitted without changing the meaning.”). Giving the
which clause a meaning that does not restrict the scope of the dominant clause, we
conclude the release included each of the claims that are at issue in the appeal.
Moreover, even if the parties intended the which clause to have a restrictive
meaning, the requirements of the restrictions were established if Keystone’s
summary judgment evidence shows that Geheb’s claims arose out of, are connected
with, or relate in any way to Keystone’s acquisition of or Owner’s conveyance of,
the Easement or Keystone’s proper exercise of its right granted under the
Easement.” Thus, even if the which clause restricts in some manner the broader
meaning of the dominant clause, the summary judgment evidence conclusively
established that the conditional requirements of the restrictions were still met. Based
on our conclusion that the summary judgment evidence conclusively proved that
each of Geheb’s claims related in some way to Keystone’s acquisition of the
easement, we hold the trial court did not err by granting Keystone’s motion for
summary judgment.
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Conclusion
We hold that Geheb released the claims that are at issue in the appeal. Because
Geheb released his claims, we need not address his remaining arguments as they
challenge rulings made by the trial court that are not necessary to our disposition of
his appeal. See Tex. R. App. P. 47.1.
Accordingly, the trial court’s judgment is affirmed.
AFFIRMED.
_________________________
HOLLIS HORTON
Justice
Submitted on June 27, 2018
Opinion Delivered October 4, 2018
Before McKeithen, C.J., Kreger and Horton, JJ.
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