                              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 -
