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




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


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

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

Dear Mr. Prine:

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

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

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

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


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



           Thank you for your courtesy and assistance.

                                                 Respectfully submitted,

                                                 /s/ David M. Gunn

                                                 David M. Gunn
                                                 Counsel for Appellants
DMG/ig
Enclosure

cc:        All Counsel of Record (Via Efiling)




1693.001/558252
Tab A
204                       THETEXASSUPREMECOURTJOURNAL                               Vol. 58

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

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

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

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

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

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

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

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


   4 The release states that it "may be pleaded

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