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.

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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-

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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

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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

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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

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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.

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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

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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-

Footnotes

[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."