Dissenting opinion issued August 16, 2012




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                        ————————————
                            NO. 01-11-00506-CV
                         ———————————
   SIMI, INC.; ARKI, INC.; AND FRIXOS HRISINIS D/B/A MYKONOS
                  ISLAND RESTAURANT, Appellants
                                     V.
                  HEB GROCERY COMPANY, Appellee



                  On Appeal from the 189th District Court
                          Harris County, Texas
                      Trial Court Case No. 1054772


  DISSENTING MEMORANDUM OPINION ON REHEARING

     The release at issue in this summary-judgment proceeding recites that the

release addresses claims, demands, causes of action, injuries of every nature
whatsoever, etc., “through the date this document is executed.” (Emphasis

added).

      There is evidence in the record that the claims made the basis of the suit

filed in August 2010, seek damages for the restaurant roof leaks that were

experienced after September 12, 2006, the date that the release and settlement of

HEB’s 2006 suit against Mykonos was executed. This provides a bright line.

Claims for damages experienced prior to September 12, 2006 are released. Those

experienced thereafter are not. This requires a determination of which leaks are

new and which are old . . . a task ill-suited to an appellate court.

                              Review of Summary Judgment

      As movant, HEB has the burden to show that there is no genuine issue of

material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr.

Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). The Majority Opinion

believes HEB met this burden by production of (1) e-mails from Mykonos, (2)

Frixos Hrisinis’s deposition, and (3) the September 12, 2006 Release and

Settlement Agreement, however, both the e-mails and the Release speak to leaks

before the effective date of the Release, and do not, because they cannot, disprove

Mykonos’s claim that the post-Release leaks are new. Nor is Hrisinis’s deposition

dispositive on this issue. Mykonos’s evidence suports its claim that the leaks on

which this 2010 suit is based are those experienced after the Release. In deciding

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whether there is a disputed material fact issue precluding summary judgment,

evidence favorable to the nonmovant will be taken as true. Nixon, 690 S.W.2d at

548–49. Evidence has been proffered that Mykonos experienced new leaks after

the 2006 Release and Settlement Agreement and, the Majority Opinion

notwithstanding, HEB’s evidence fails to negate that evidence.

                                  The Deposition

      The Hrisinis deposition never suggests that the leaks that give rise to the

2010 suit pre-date the Release nor does his deposition testimony consider such

leakage as related.     The actual Hrisinis statement the Majority Opinion finds

convincing was that there was “leaking” in 2000 as well as 2007. Such a statement

hardly serves to prove that the leaks are the same. Rather, it merely acknowledges

a leak in 2000 and a leak in 2007. Indeed, Mr. Hrisinis distinguished the leaks he

experienced in 2007 as “stronger” leaks than those before. Further, exhibits were

produced that referenced post-Release leaks that restaurant patrons themselves

averred were “new.” Taken as a whole, the deposition clearly speaks to “new”

(post-Release) leaks.

                          E-mails from Mykonos to HEB

      Before the Release and Settlement Agreement was executed in September

2006 (indeed, during negotiations), an e-mail from Mykonos’s counsel to HEB

referred to “another related issue.” The Majority seizes upon the catch-word

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“related” as proof Mykonos knew the leakage claim post-release was “related” to

the leakage claim pre-Release. However, this June 2006 e-mail reference would,

of temporal necessity, speak to a pre-Release issue. Far from being conclusive,

such a reading of this “related issue” language is rife with conjecture. Assuming

for the sake of argument that HEB met its burden, Mykonos then had the

obligation to point out a question of fact regarding this issue, which it did by

means of an April 2007 e-mail it sent to HEB complaining of leakage that

commenced after the release, thus raising a fact issue as to when these leaks

occurred. HEB, however, failed to offer evidence that this new leakage is related

to the pre-Release leakage and falls far afield from any showing that reasonable

minds could not differ as to the conclusion to be drawn from the evidence.

                                    The Release

      The Release freed HEB from “any and all . . . claims . . . known or

unknown, asserted or unasserted . . . arising directly or indirectly, from any fact

that made the basis of the lawsuit, the Lease, the Premises or the relationship of the

Parties.” As the Majority Opinion correctly notes, a valid release may encompass

unknown claims and future damages. See Keck, Mahin & Cate v. Nat’l Union Fire

Ins. Co., 20 S.W.3d 692, 698 (Tex. 2000). This rule’s implication, as applied by

the Majority would bar any and all future claims involving leaks. However, as the

Majority Opinion correctly further notes, when construing a contract, we give

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effect to the intentions of the parties as expressed in the written instrument. See

Henry v. Masson, 333 S.W.3d 825, 844 (Tex. App.—Houston [1st Dist.] 2010, no

pet.). The contract should also be read as a whole, examining the entire contract

“in an effort to harmonize and give effect to all of its provisions so that none are

rendered meaningless and no single provision controls.” Id. With this in mind, the

Majority gives impermissibly short shrift to the language that recites, “This release

does not include any claim for breach of this Agreement and/or the Lease from this

date forward.” Read together, this contract language should be interpreted as

applicable to damages yet to be discovered from the 2006 claim are barred,

however this does not include breaches of the Lease from new and unrelated

problems. Mykonos contends that HEB breached its duty under the Lease on a

date after the September 2006 release to repair a “new” and “unrelated” leak.

                                    Conclusion

      Mykonos has presented evidence that the roof leaks are not the same ones

suffered prior to the Release.    Nothing from the evidence proffered by HEB

negates Mykonos’s evidence.




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      Based on the foregoing, I withdraw my prior vote to affirm the trial court’s

judgment and dissent to the Court’s denial of the motion for rehearing.




                                             Jim Sharp
                                             Justice

Panel consists of Justices Keyes, Bland and Sharp.




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