                            NUMBER 13-13-00006-CV

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


ROLANDO BENAVIDEZ,                                                         Appellant,

                                              v.

THE UNIVERSITY OF TEXAS –
PAN AMERICAN,                                                              Appellee.


                   On appeal from the 92nd District Court
                        of Hidalgo County, Texas.


                               MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Garza
            Memorandum Opinion by Chief Justice Valdez

      By three issues, which we construe as four, appellant Rolando Benavidez,

challenges the trial court’s order granting appellee The University of Texas-Pan

American’s (UTPA) plea to the jurisdiction. Benavidez argues that: (1) the release form

he signed did not preclude his lawsuit because UTPA did not abide by the safety policies
listed on the back of the form; (2) the Texas Recreational Use Statute did not preclude

the lawsuit because Benavidez’s pleadings at least raised a fact issue regarding gross

negligence; (3) the trial court erred by granting UTPA’s objections to his evidence; and

(4) the trial court erred by ordering Benavidez to pay UTPA’s court costs. We affirm.

                                      I.   BACKGROUND

       This suit arises out of injuries sustained by Benavidez after falling from a climbing

wall on the campus of UTPA. Prior to climbing the wall, the belayer, an employee of

UTPA, tied a rope to a harness attached to Benavidez. While Benavidez climbed the

wall, the belayer held on to the opposite end of the rope. After reaching the top of the

wall, the belayer instructed Benavidez to “let go.” Subsequently, Benavidez fell thirty-

three feet from the top of the wall, breaking his ankle in multiple places and suffering a

lumbar spine compression fracture. Another employee of UTPA witnessed Benavidez

fall and immediately came to his aid. She provided deposition testimony in which she

explained that the figure eight-knot which is used to tie the rope to the harness was “either

not tied properly, or not tied at all.”

       Before he climbed the wall, Benavidez signed a waiver/release from liability. On

the front of the page, the form stated:

       By signing this agreement you give up your right to bring a court action to
       recover compensation or obtain any other remedy for any injury to yourself
       or your property or for your death however caused arising out of your use
       of the University of Texas Pan-American Climbing Wall now or any time in
       the future.

       Also on the front of the page, under the heading, “Release/Indemnification and

Covenant Not to Sue”, the form stated:

       In consideration of my use of the Climbing Wall, I the undersigned user, . .
       . HEREBY DO RELEASE University of Texas Pan American . . . from any
       cause of action, claims, or demands of any nature whatsoever, including
       but not limited to a claim of negligence . . . against the University on account
                                                 2
      for personal injury, property damage, death or accident of any kind arising
      out of or in any way related to my use of the Climbing Wall, whether that
      use is SUPERVISED OR UNSUPERVISED, howsoever the injury or
      damages is caused, including, but not limited to the negligence of the
      University.

Benavidez initialed under this clause in the blank provided. Benavidez then initialed in

the spaces provided under paragraphs stating that he: (1) would indemnify and hold

harmless UTPA from all causes of action; (2) had full knowledge of the risks associated

with climbing the wall; (3) was in good health and had no physical limitations precluding

his safe use of the climbing wall; and (4) was of lawful age and was competent to enter

into a legally binding agreement. Appellee signed and dated the bottom of the front page

of the document in the space provided.

      On the backside of the Waiver and Release from Liability, under the title “SAFETY

POLICIES AND RULES”, it stated, inter alia:

      I Rolando Benavidez [name written by Benavidez in space provided] accept
      full responsibility for my own safety while in the UTPA climbing Wall area. I
      agree to abide by, and help enforce the following safety policies and rules:

             To enter the climbing area, you must have signed a waiver of
              liability/assumption of the risk and turn into the climbing wall
              Supervisor.

             Climbers must check in/out at the Climbing Wall desk during
              operation hours.

             Before each climbing the entrance instructor and belayer must check
              each climber to ensure that the knot and harness buckle are correctly
              fastened and that the belay system and belayers harness buckles
              are safe.

             The belayer must keep their brake hand on the rope and eyes on the
              climber at all times.


             Belayers must belay while standing up: NO belaying from benches,
              seated, or in a reclined position.


                                               3
              ....

             No food or open drink containers allowed in the climbing wall area.

             No loose chalk.

             No obscene language.

              ....

             No Jewelry

              ....

             Any infraction of these rules will result in loss of climbing privileges.
              Repeated infractions will result in loss of future privileges for
              inappropriate or unsafe behavior.

These rules were included in a list of twenty-four safety policies and rules, all listed as

bullet points. At the bottom of the document in bold letters, the document stated, “I

acknowledge that I have read and agree to abide by the Wellness and recreational

Sports Complex safety polices and Rules.” Underneath this statement, Benavidez

printed and signed his name.

       At the hearing on the plea to the jurisdiction, deposition testimony was admitted in

which the belayer explained that although he believed at the time that he tied the knot

securing the rope to the harness properly, he must not have appropriately tied a double

figure-eight knot as he was instructed to do. The belayer also testified that an entrance

examiner did not check the knot before Benavidez began his climb and that UTPA never

followed that policy until after Benavidez’s accident occurred.

       Benavidez filed suit under section 101.021 of the Texas Tort Claims Act. In his

pleadings, Benavidez alleged that his injuries resulted from the belayer’s “failure to

properly use the climbing equipment and properly supervise [Benavidez] during the

climb.” Under the theory of respondeat superior, Benavidez claimed that his injuries were

                                                 4
caused by the negligence and gross negligence of UTPA. Benavidez alleged a cause of

action for negligent use of tangible personal property in that UTPA breached its “legal

duty to [Benavidez] to provide supervision of [Benavidez], use safe equipment with

[Benavidez], and to properly secure [Benavidez’s] harness prior to climbing.” Benavidez

also alleged a cause of action for negligent use or condition of real property in that UTPA

breached its duty to provide a safe climbing wall for Benavidez and failed to use ordinary

care to protect Benavidez from an unreasonably dangerous condition.               In addition,

Benavidez alleged that UTPA had subjective awareness of a high degree of risk and

acted with “conscious indifference to the rights, safety, or welfare of [Benavidez] or others

similarly situated.”

       UTPA filed a plea to the jurisdiction alleging that it did not waive immunity under

the Texas Tort Claims Act because (1) Benavidez signed a waiver of liability prior to

climbing the wall releasing UTPA from liability “for all damages complained of” by

Benavidez, and (2) pursuant to the Texas Recreational Use Statute, which further limits

a State entity’s waiver of immunity to circumstances in which the State entity fails to

exercise a duty of care owed by a landowner to trespasser, Benavidez was required to

demonstrate gross negligence in his pleadings and failed to do so. Benavidez responded

by conceding that the Texas Recreational Use Statute applied to his claim and required

him to prove gross negligence. Benavidez however contended that, (1) by his pleadings,

he raised a fact issue on gross negligence; and (2) he could avoid enforcement of the

release from liability as to all of his claims because UTPA committed a prior material

breach or failed to satisfy a precondition of the contract by failing to comply with the safety

polices.




                                                  5
         After holding a hearing, the trial court entered an order granting UTPA’s plea to the

jurisdiction and ordered Benavidez to pay UTPA’s court costs. This appeal followed.

                                 II.    STANDARD OF REVIEW

         We review a plea to the jurisdiction under a de novo standard of review. Westbrook

v. Penley, 231 S.W. 3d 389, 394 (Tex. 2007). A plea to the jurisdiction seeks to dismiss

a case for want of jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

226–27 (Tex. 2004). When reviewing whether a plea was properly granted, we first look

to the pleadings to determine if jurisdiction is proper, construing them liberally in favor of

the plaintiff and looking to the pleader’s intent. Id. at 226. “If a plea to the jurisdiction

challenges the existence of jurisdictional facts, we consider relevant evidence submitted

by the parties when necessary to resolve the jurisdictional issues raised,” even where

those facts may implicate the merits of the cause of action. Id. at 227. If that evidence

creates a fact issue as to the jurisdictional issue, then it is for the fact-finder to decide. Id.

at 227–28. “However, if the relevant evidence is undisputed or fails to raise a fact

question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a

matter of law.” Id. at 228. In considering this evidence, we “take as true all evidence

favorable to the nonmovant” and “indulge every reasonable inference and resolve any

doubts in the nonmovant’s favor.” City of Waco v. Kirwan, 298 S.W.3d 618, 621–22 (Tex.

2009).

                               III.    TEXAS TORTS CLAIM ACT

         As a governmental unit, UTPA is immune from both suit and liability unless the

Tort Claims Act has waived that immunity. See TEX. CIV. PRAC. & REM. CODE ANN. §

101.001(3)(A) (West, Westlaw through 2013 3d C.S.). Section 101.021 of the Tort Claims

Act has been interpreted as waiving sovereign immunity in three general areas: “use of


                                                    6
publicly owned automobiles, premises defects, and injuries arising out of conditions or

use of property.” Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000). Pursuant

to section 101.021, a governmental unit in the state is liable for:

       (1)    property damage, personal injury, and death proximately caused by
              the wrongful act or omission or the negligence of an employee acting
              within his scope of employment if:

              (A)    the property damage, personal injury, or death arises from the
                     operation or use of a motor-driven vehicle or motor-driven
                     equipment; and

              (B)    the employee would be personally liable to the claimant
                     according to Texas law; and

       (2)    personal injury and death so caused by a condition or use of tangible
              personal or real property if the governmental unit would, were it a
              private person, be liable to the claimant according to Texas law.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West, Westlaw through 2013 3d C.S.).

       In addition, the parties do not dispute that the Texas Recreational Use Statute

applies to this case. When injury or death results on state-owned, recreational land, the

recreational use statute limits the state’s duty even further to that owed by a landowner

to a trespasser, which means that the State only waives immunity for conduct that rises

to the level of gross negligence. Id. § 75.002 (West, Westlaw through 2013 3d C.S.); see

also id. §§ 75.003(g) (“To the extent that this chapter limits the liability of a governmental

unit under circumstances in which the governmental unit would be liable under [the Tort

Claims Act], this chapter controls.”), 101.058 (same); State v. Shumake, 199 S.W.3d 279,

283 (Tex. 2006).

                           IV.    RELEASE/WAIVER OF LIABILITY

       a. Applicable Law

       A release operates to extinguish a claim or cause of action and is an absolute bar

to the released matter. See Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d
                                                 7
505, 509 (Tex. 1993). The Texas Supreme Court has held that in order to be valid, a

release must (1) provide fair notice by being conspicuous, and (2) comply with the express

negligence doctrine. Id. To be conspicuous, a release must be written, displayed, or

presented such that a reasonable person against whom it is to operate ought to have

noticed it. See id. 510 (adopting the definition from TEX. BUS. & COM. CODE ANN. §

1.201(b)(1) (West, Westlaw through 2013 3d C.S.)). A release satisfies the express

negligence doctrine if it expresses the intent of the parties to exculpate a party for its own

negligence. Atl. Richfield Co. v. Petroleum Pers., Inc., 768 S.W.2d 724, 726 (Tex. 1989).

       The party seeking the protections of a release asserts an affirmative defense.

Dresser, 853 S.W.2d at 509. It is therefore the defendant’s burden to establish all

elements of the affirmative defense. Id. UTPA argues that it did not waive immunity

under the Texas Tort Claims Act because it would not be liable as a private party as it

established an affirmative defense as a matter of law. See TEX. CIV. PRAC. & REM. CODE

ANN. § 101.021. Accordingly, we apply a traditional summary judgment evidentiary

burden to the UTPA’s contention as we would to a private party’s reliance on a release

from liability prior to trial. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

226 (Tex. 2004); Galveston Indep. Sch. Dist. v. Clear Lake Rehab. Hosp., L.L.C., 324

S.W.3d 802, 807 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (reasoning that a

governmental entity’s challenge to jurisdictional facts implicating the merits of the

plaintiff's lawsuit “mirrors traditional summary-judgment practice”).      The burden was

therefore on UTPA to provide evidence establishing that Benavidez had released it from

liability on the claims before the court. Clear Lake Rehab. Hosp., L.L.C., 324 S.W.3d at

811.




                                                 8
        b. Discussion

        In its plea to the jurisdiction, UTPA argued that it did not waive immunity from

Benavidez’s Texas Tort Claims Act suit because Benavidez executed the release

contract, which “released [UTPA] of all liability for the damage complained of in

[Benavidez’s] cause of action.”1           Specifically, UTPA asserted that because the release

was executed, Benavidez’s “suit is barred in its entirety and [UTPA] moves for dismissal

as a matter of law.” Moreover, both in its plea to the jurisdiction and on appeal UTPA

described the release from liability as the “real issue before the court,” and UTPA framed

its Texas Recreational Use Statute defense as an alternative argument, asking the trial

court to address the issue if it found that the release was not enforceable. In his appellate

brief, Benavidez concedes that UTPA’s plea to the jurisdiction was based on two

alternative defenses:           “(1) [Benavidez] waived all personal injury claims in a

waiver/release from liability form . . . ; and (2) [Benavidez’s] claims are barred by the

recreational use statute.”




        1  This Court has never held that a state entity’s affirmative defense is a proper basis for granting a
plea to the jurisdiction. In its plea to the jurisdiction, UTPA relied on Texas Engineering Extension Service
v. Gifford, in which the Waco Court of appeals reversed a denial of a plea to the jurisdiction because it
found that the plaintiff had executed a release from liability. No. 10-11-00242-CV, 2012 WL 851742, at *4
(Tex. App.—Waco Mar. 14, 2012, no pet.) (mem. op.). The Gifford court reasoned that under the Texas
Tort Claims Act:

        A governmental unit is liable for personal injury if the government would be liable, were it
        a private person, according to Texas law. [The plaintiff’s] execution of the release and
        indemnity agreement extinguished any liability owed by [the defendant]. Because a private
        person would not be liable for [the plaintiff’s] personal injuries, [the defendant] has not
        waived its sovereign immunity.

Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West, Westlaw through 2013 3d C.S.)). In this
appeal, we need not determine whether we agree with this analysis. Benavidez does not argue that UTPA’s
affirmative defense of release is an improper basis for an order granting a plea to the jurisdiction; therefore,
we cannot reverse the trial court’s judgment on this basis and we decline to consider this issue. TEX. R.
APP. P. 47.1. Accordingly, for purposes of this appeal only, we assume without deciding that the affirmative
defense of release, if established as a matter of law, may be a valid basis upon which to grant a plea to the
jurisdiction.

                                                           9
       Notably, while Benavidez did not specifically plead separable causes of action for

negligence and gross negligence, he did claim that the injuries alleged were caused by

the negligence and gross negligence of UTPA and that UTPA exhibited “conscious

indifference to the rights, safety, or welfare of [Benavidez] or others similarly situated.”

Moreover, in his motion for summary judgment, response to the plea to the jurisdiction,

and appellate brief and at the hearing on the plea and at oral arguments on appeal,

Benavidez conceded that the Texas Recreational Use Statue applied to his lawsuit, which

required him to show gross negligence. He thereby effectively abandoned any separate

claim of ordinary negligence, to the extent that it was originally pleaded, and proceeded

only with a suit for gross negligence.

       By granting the plea to the jurisdiction, which alleged that Benavidez released all

claims against UTPA, the trial court therefore held that Benavidez released UTPA from

liability for gross negligence. There is some disagreement among the courts of appeals

as to whether a party may validly release claims of gross negligence. Some courts have

held that negligence and gross negligence are not separable claims and that therefore a

release of liability for negligence also releases a party from liability for gross negligence.

Tesoro Petroleum Corp. v. Nabors Drilling U.S., 106 S.W.3d 118, 127 (Tex. App.—

Houston [1st Dist.] 2002, pet. denied); Newman v. Tropical Visions, Inc., 891 S.W.2d 713,

722 (Tex. App.—San Antonio 1994, writ denied). In contrast, the Dallas Court of Appeals

recently held that a plaintiff’s execution of a contract specifically releasing a defendant

from liability for negligence did not release the defendant from liability for gross

negligence. Van Voris v. Team Chop Shop, LLC, 402 S.W.3d 915, 926 (Tex. App.—

Dallas 2013, no pet.). The Dallas Court reasoned that the public policy requiring an

express release from negligence also requires an express release from gross negligence.


                                                 10
See id. Other courts have held that pre-accident waivers of gross negligence are invalid

as against public policy. Sydlik v. REEIII, Inc., 195 S.W.3d 329, 336 (Tex. App. —Houston

[14th Dist.] 2006, no pet.); Smith v. Golden Triangle Raceway, 708 S.W.2d 574, 576 (Tex.

App.—Beaumont 1986, no writ).

       This Court has never addressed the issue of whether a release from liability for

gross negligence is separable from a release of liability from negligence, or whether a

release of liability for gross negligence violates public policy. See Blankenship v. Spectra

Energy Corp., 13-12-00546-CV, 2013 WL 4334306, at *5 n.6 (Tex. App.—Corpus Christi

Aug. 15, 2013, no pet.) (declining to decide whether a party may release claims of gross

negligence because the release was unenforceable for failure to satisfy fair notice

requirements and because summary judgment evidence conclusively negated the gross

negligence claim). Here, we cannot decide this issue because it has not been raised.

TEX. R. APP. P. 47.1. On appeal, Benavidez effectively concedes that the release form

purports to release UTPA from liability for all personal injury claims, but relies solely on

contract defenses as an attempt to avoid enforcement of the release. He does not

challenge enforcement of the release on the ground that it was inapplicable to his gross

negligence claims; similarly he does not argue that the release of his gross negligence

claims was invalid because it did not comply with fair notice requirements or because it

violated public policy. See id.     Moreover, Benavidez did not present any of these

arguments to the trial court. See. id. R. 33.1.

       Accordingly, we now address Benavidez’s first issue, in which he contends that he

can avoid enforcement of the release contract because the belayer failed to properly tie

the knot, and because UTPA failed to follow its own policy that required an entrance

instructor to check the knot after it was tied. Benavidez argues that these actions


                                                  11
constituted either a prior material breach of the release contract or a failure to satisfy a

precondition of the contract. We disagree.

       Under Texas law, a release is a contract and is subject to avoidance just like any

other contract. Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990). When construing a

contract, the court’s primary concern is to give effect to the written expression of the

parties’ intent. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). This

court is bound to read all parts of a contract together to ascertain the agreement of the

parties. See Royal Indem. Co. v. Marshall, 388 S.W.2d 176, 180 (Tex.1965). The

contract must be considered as a whole. Reilly v. Rangers Management, Inc., 727

S.W.2d 527, 529 (Tex.1987); Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983).

Moreover, each part of the contract should be given full effect. See Barnett v. Aetna Life

Ins. Co., 723 S.W.2d 663, 666 (Tex.1987).

       Under the theory of prior material breach, a party is discharged from its contractual

obligations based on the other party’s material breach of the contract. See Mustang

Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 198 (Tex. 2004) (determining that a

party was released from further contractual obligations when the other party materially

breached). In order for a material breach of contract to occur, the party seeking avoidance

must be deprived of part of its consideration or an expected benefit of the contract.2 See

id. at 199.



       2  Texas courts have adopted the factors set forth in the Restatement (Second) of Contracts for
determining the materiality of a breach:

       (1) the extent to which the injured party will be deprived of the benefit which he reasonably
            expected;

       (2) the extent to which the injured party can be adequately compensated for the part of that
            benefit of which he will be deprived;


                                                        12
       Alternatively, a condition precedent is an event that must occur or act that must be

performed before rights can accrue to enforce an obligation. See Centex Corp. v. Dalton,

840 S.W.2d 952, 956 (Tex. 1992). Ordinarily, terms such as “if,” “provided that,” “on

condition that,” or similar conditional language indicate the intent to create a condition

precedent. Criswell v. European Crossroads Shopping Ctr., 792 S.W.2d 945, 948

(Tex.1990). Conditions precedent, which can cause forfeiture of a contractual right, are

not favored under the law, and we will not construe a contract provision as a condition

precedent unless we are compelled to do so by language that may be construed in no

other way. See Reilly, 727 S.W.2d at 530.

       As an initial matter, we cannot conclude that under the plain language of the

contract, the safety policies listed on the back of the waiver are part of Benavidez’s

agreement to release UTPA from liability on the front of the document; therefore, UTPA

could not breach or fail to satisfy a condition of the release contract by failing to follow the

safety policies. See Mustang Pipeline Co., 134 S.W.3d at 198; Criswell, 792 S.W.2d at

948. Here, the separate sides of the document constitute separate agreements that were

each signed separately by Benavidez; moreover, they contain separate promises to

perform distinct duties. In the agreement on the front of the page, Benavidez agreed to

release UTPA from liability for its own negligence resulting from any injury.                               In the




       (3) the extent to which the party failing to perform or to offer performance will suffer
           forfeiture;

       (4) the likelihood that the party failing to perform or to offer to perform will cure his failure,
            taking account of all the circumstances including any reasonable assurances; and

       (5) the extent to which the behavior of the party failing to perform or to offer to perform
            comports with standards of good faith and fair dealing.

Mustang Pipeline Co., v. Driver Pipeline Co., 134 S.W.3d 195, 199 (Tex. 2004); RESTATEMENT (SECOND) OF
CONTRACTS § 241(a) (1981).

                                                          13
agreement on the back of the page, Benavidez again agreed to accept full responsibility

for any accident and agreed to comply with the safety policies listed on the form. In

addition, the language of the document reveals that the safety policies referred to the

release clause only by requiring the prospective climber to complete the release form

before climbing the wall. This in no way indicates that the safety policies are part of the

consideration or a condition of the waiver/release from liability.3

        In fact, the language of the release clause explicitly states that the consideration

for the release is the climber’s opportunity to climb the wall. Further, the clause stipulates,

in capital letters, that the release applies whether climbing is “SUPERVISED OR

UNSUPERVISED,” which indicates that UTPA was not promising to undertake any duty

or conditioning the release on any action other than providing the climber with access to

the climbing wall.

        Moreover, even if we were to consider the two sides of the document as one

agreement, the safety policies side of the document, by its clear language, does not

indicate that UTPA promised to comply with the policies or that compliance with the

policies by UTPA was consideration for or a condition precedent of Benavidez’s

agreement to release UTPA from liability. See Forbau, 876 S.W.2d at 133. Benavidez

argues that the bullet point stating, “Before each climbing the entrance instructor and

belayer must check each climber to ensure that the knot and harness buckle are correctly

fastened” indicates that UTPA undertook an affirmative contractual duty to follow this




         3 Benavidez also refers us to deposition testimony from the coordinator of campus activities in

which he agreed that both the back and front of the document are part of one agreement. This testimony
however does not indicate that the safety policies were consideration for or a precondition of the release
from liability. Moreover, the coordinator’s testimony did not indicate that he was giving a legal opinion on
whether both sides of the agreement constitute one contract.

                                                        14
policy as part of Benavidez’s agreement to waive liability.4 However, reading the safety

policies document as a whole, we find that the language of the agreement placed the sole

responsibility on the climber to ensure that the procedures in the safety polices were

followed. See Reilly, 727 S.W.2d at 529. At the top of the safety policy side of the

document, it specifically states, “I Rolando Benavidez [name written by Benavidez in the

space provided] accept full responsibility for my own safety while in the UTPA climbing

Wall area. I agree to abide by, and help enforce the following safety policies and rules.”

The safety policies are listed as bullet points beneath this agreement. The language

Benavidez refers to is listed among multiple bullet points mostly relating to Benavidez’s

conduct, such as “no jewelry” and “no obscene language.” As is clear from the plain

language of the agreement, these are policies that Benavidez agreed to abide by and

help enforce; no language indicates that UTPA agreed to comply with the policies or that

the policies were consideration for or a condition precedent of the release from liability.

        Further, the final bullet point of the safety policies stated that, “Any infraction of

these rules will result in loss of climbing privileges. Repeated infractions will result in loss

of future privileges and possibly additionally sanctions . . . .” The fact that the climber was

subject to punishment for failure to follow the policies further indicates that the document

was intended to require the climber to comply with and ensure compliance with the safety

polices, and was not a promise to comply with the policies by UTPA.

        Finally, at the bottom of the safety policies, directly before Benavidez’s signature,

it explicitly states: “I acknowledge that I have read and agree to abide by the Wellness


         4 On appeal, Benavidez claims that the word “before”, used as part of the safety polices, indicates

that the bullet point was a condition precedent of the contract. Criswell v. European Crossroads Shopping
Ctr., 792 S.W.2d 945, 948 (Tex. 1990). However, the term indicates that the safety policies were to be
complied with before Benavidez climbed the wall not before he released UTPA from liability or before the
contract could be enforceable. See id.


                                                        15
and recreational Sports Complex safety polices and Rules.” Neither this language nor

any other language on either side of the document indicates that Benavidez premised his

acceptance of responsibility on or expected the benefit of the performance of any duty on

the part of UTPA. See Mustang Pipeline Co., 134 S.W.3d at 198; Criswell, 792 S.W.2d

at 948.

       Because we find that, by its clear language, the waiver and release form did not

express the intent of either party to condition the release from liability on any performance

by UTPA and did not include a promise by UTPA to follow the safety policies as

consideration for the contract, we conclude that UTPA did not breach or fail to satisfy a

condition of the release contract. See Forbau, 876 S.W.2d at 133. Therefore, Benavidez

could not avoid enforcement of the release. See Mustang Pipeline Co., 134 S.W.3d at

198; Criswell, 792 S.W.2d at 948. We overrule Benavidez’s first issue.

                                 V.      REMAINING ISSUES

       Because we are affirming the order granting the plea to the jurisdiction based on

the trial court’s finding that Benavidez released UTPA from liability on all of his claims, we

need not address Benavidez’s second issue in which he argues that the Texas

Recreational Use Statute does not bar his suit because he pleaded facts sufficient to raise

a fact issue on gross negligence. TEX. R. APP. P. 47.1. Moreover, we assume without

deciding that all of the evidence presented by Benavidez was admissible; therefore, we

need not address Benavidez’s third issue in which he argues that the trial court erred by

sustaining UTPA’s objections to his evidence. Id.

       Finally, Benavidez argues that the trial court erred by awarding UTPA court costs.

Under Texas Rule of Civil Procedure 131, the “successful party to a suit shall recover

court costs incurred therein, except where otherwise provided.” TEX. R. CIV. P. 131. A


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successful party, under the rule, has been defined as “one that obtains a judgment

vindicating a civil right.” Bayer Corp. v. DX Terminals, Ltd., 214 S.W.3d 586, 612 (Tex.

App.—Houston [14th Dist.] 2006, pet. denied). Benavidez argues that the trial court could

not award court costs because to this date, no judgment has been issued by the trial

court. However, Benavidez cites no law, and we find none, indicating that the trial court

may not award court costs pursuant to Texas Rule of Civil Procedure 131 in an order

granting a plea to the jurisdiction. See TEX. R. CIV. P. 131. Accordingly, we overrule

Benavidez’s fourth issue.

                                   VI.    CONCLUSION

      We affirm the trial court’s order granting UTPA’s plea to the jurisdiction



                                                       /s/ Rogelio Valdez
                                                       ROGELIO VALDEZ
                                                       Chief Justice

Delivered and filed the
30th day of October, 2014.




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