                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-12-00342-CV

                                    Annie Cervantes RAMIREZ,
                                             Appellant

                                                 v.

                 FFE TRANSPORTATION SERVICES, INC. and Conwell LLC,
                                   Appellees

                     From the 131st Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2012-CI-07893
                             Honorable Fred Shannon, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: April 3, 2013

REVERSED AND REMANDED

           Annie Ramirez appeals the trial court’s grant of FFE Transportation Services, Inc. and

Conwell, LLC’s (FFE and Conwell) cross-motion for summary judgment and the denial of her

motion for summary judgment. In a single point of error, Ramirez complains that the liability

release she signed fails to meet the fair-notice requirements for releases of future liability.

Because we agree the release fails to meet the standard for fair notice, we reverse the judgment

of the trial court and remand the cause for further proceedings.
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                                              BACKGROUND

        Ramirez’s husband was employed by FFE and Conwell to drive an 18-wheeler. In order

to ride with her husband while he was traveling, FFE and Conwell required Ramirez to sign a

document entitled “Indemnity, Hold Harmless Agreement and Release.” In March of 2008,

Ramirez was injured in a single-vehicle accident while riding in the 18-wheeler her husband was

driving. Thereafter, Ramirez filed a negligence suit against FFE, Conwell, and her husband. In

their third amended answer, FFE and Conwell alleged that Ramirez’s claims against FFE and

Conwell were barred by the release she signed.               Both parties filed motions for summary

judgment on the issue of whether the release met the requirements of fair notice and thereby

barred Ramirez’s claims against FFE and Conwell. The trial court denied Ramirez’s motion for

summary judgment and granted FFE and Conwell’s cross-motion for summary judgment,

determining that Ramirez’s claims were barred by waiver. 1 Ramirez then pursued this appeal.

                                         STANDARD OF REVIEW

        We review a trial court’s summary judgment de novo. Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); Longoria v. Lasater, 292 S.W.3d 156, 162 (Tex.

App.—San Antonio 2009, pet. denied). A party should be granted summary judgment only if it

proves all elements of its cause of action or affirmative defense. Holy Cross Church of God in

Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001); see also TIG Ins. Co. v. San Antonio YMCA,

172 S.W.3d 652, 655–56 (Tex. App.—San Antonio 2005, no pet.). When both parties file

motions for summary judgment and the trial court grants one motion and denies the other, the

reviewing court must consider the evidence presented by both parties and determine all questions

presented to the trial court. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872–73


1
  Subsequently, the trial court granted Ramirez’s motion to sever her claims against FFE and Conwell from her
claim against her husband.

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(Tex. 2000); TIG Ins. Co., 172 S.W.3d at 655–56. It is the duty of a reviewing court to “render

the judgment that the trial court should have rendered.” Wolf, 44 S.W.3d at 566; see also FM

Props. Operating Co., 22 S.W.3d at 872–73.

                               FAIR NOTICE OF RELEASED CLAIMS

       Parties seeking to exculpate themselves from their own negligence must provide fair

notice of their intent to do so. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505,

508–09 (Tex. 1993). Fair notice of a release of future liability exists when the terms of the

release comply with the express negligence doctrine and are 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 meets the fair notice requirements is a question of law for the court.

Dresser Indus., 853 S.W.2d at 509. Because we conclude that the release at issue did not satisfy

the express negligence doctrine, we do not address whether the terms of the release were

conspicuous. See TEX. R. APP. P. 47.1.

       In support of her claim that the release language used in this case does not satisfy the

express negligence rule, Ramirez primarily relies on three cases: Victoria Bank & Trust Co. v.

Brady, 811 S.W.2d 931, 938 (Tex. 1991); Ethyl Corp. v. Daniel Const. Co., 725 S.W.2d 705,

707–08 (Tex. 1993); and Trinity Indus., Inc. v. Ashland, Inc., 53 S.W.3d 852, 869 (Tex. App.—

Austin 2001, pet. denied). Although we agree with FFE and Conwell that these cases are

factually distinguishable, the general rules outlined in these cases still guide our decision.

       The express negligence doctrine requires the party seeking avoidance of future liability

for its own negligence to “express that intent in specific terms within the four corners of the

contract.” Dresser Indus., 853 S.W.2d at 508; see also Ethyl Corp., 725 S.W.2d at 707–08. This

means the claim must clearly be within the subject matter of the release clause. Brady, 811

S.W.2d at 938. Indeed, a claim will not be released unless it is mentioned in the instrument. Id.;
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Newman v. Tropical Visions, Inc., 891 S.W.2d 713, 719 (Tex. App.—San Antonio 1994, writ

denied).

       This rule does not necessarily require the word “negligence” to be used in order for the

claim to be “mentioned.” Lehmann v. Har-Con Corp., 76 S.W.3d 555, 562 n.3 (Tex. App.—

Houston [14th Dist.] 2002, no pet.); Banzhaf v. ADT Sec. Sys. Sw., Inc., 28 S.W.3d 180, 189

(Tex. App.—Eastland 2000, pet. denied). It does, however, require some express language that

would indicate an intention to waive claims of a party’s own negligence. Fisk Elec. Co. v.

Constructors & Assocs., Inc., 888 S.W.2d 813, 815–16 (Tex. 1994); Lehmann, 76 S.W.3d at 562

n.3. Compare Texas Eng’g Extension Serv. v. Gifford, No. 10-11-00242-CV, 2012 WL 851742,

at *2–4 (Tex. App.—Waco Mar. 14, 2012, no pet.) (mem. op.) (declaring that the release

provided notice of the appellant’s intent to be held blameless for its own negligence related to the

appellee’s fall when the instrument released the appellant from all liability arising out of personal

injury, specifically stating the risk of falling), and Banzhaf, 28 S.W.3d at 189 (determining that

an agreement to indemnify the appellee for “failure of its equipment or service in any respect”

adequately expressed the appellee’s intent to be indemnified for claims based on its negligence),

with Stanford v. Evans, No. 14-08-00776-CV, 2010 WL 2517675, at *3 (Tex. App.—Houston

[14th Dist.] June 24, 2010, no pet.) (mem. op.) (stating that a broad provision purporting to hold

a party harmless from “any claims or damages no matter how caused” does not reflect a specific

and unambiguous intent to waive liability for that party’s negligent acts), and Trinity Indus., 53

S.W.3d at 869 (concluding that a release from “all claims . . . and liabilities . . . of any nature

whatsoever” was not sufficiently specific to bar claims for negligent misrepresentation and fraud

under the express negligence doctrine).

       Moreover, in order to effectuate important policy interests, “general categorical release

clauses are narrowly construed.” Brady, 811 S.W.2d at 938; Duncan v. Cessna Aircraft Co., 665
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S.W.2d 414, 422 (Tex. 1984). The express negligence rule was adopted in Texas to protect

unsuspecting parties to a contract from “the extraordinary shifting of risk” that occurs when the

other party seeks to exculpate itself from its own future negligence. See Green Intern., Inc. v.

Solis, 951 S.W.2d 384, 387 (Tex. 1997); Dresser Indus., 853 S.W.2d at 508. In Ethyl Corp. v.

Daniel Construction Co., the Texas Supreme Court explained that the express negligence rule is

intended to prevent scriveners from releasing or indemnifying a party for its own negligence in

advance, yet drafting the exculpating instrument “just ambiguous enough to conceal that intent.”

725 S.W.2d at 707–08.

       The portion of the release at issue provides:

       It is further agreed that Sponsoring Driver and Guest Passenger . . . hereby waive
       any and all claims, rights, and cause[s] of action which either or both of them may
       have in the future against Motor Carrier, it[]s parents, subsidiaries[,] and/or
       related entities, and hereby release, discharge, quit-claim[,] and give up unto
       Motor Carrier, it[]s parents, subsidiaries, and/or related entities harmless from any
       claim[,] loss[,] or cause of action by Guest Passenger or by his/her[] heirs,
       personal representatives, successors[,] and/or assigns arising out of any
       occurrence in connection with travel whenever occurring.

       It is further understood and [a]greed that any indemnification and hold harmless
       agreement provided for herein shall also insure to the benefit of Motor Carrier,
       it[]s parents, subsidiaries[,] and[/]or related entities and their assigns, agents,
       representatives[,] or indemnitors for any claims, demands[,] and causes of action
       arising, directly or indirectly[,] out of any occurrence(s) in connection with the
       terms of agreement of travel.

       This language essentially says that Ramirez “waive[s] any and all claims, rights, and

cause[s] of action . . . against Motor Carrier . . . arising out of any occurrence in connection with

travel whenever occurring.” In fact, FFE and Conwell state almost this exact same summation of

the release agreement in their brief to this court. FFE and Conwell assert that this language

eliminates the concerns announced in Ethyl because they did not try to conceal the claims for

which they sought a release of liability but, instead, clearly indicated their intention to be

released from any claim related to Ramirez’s travels with her husband. Texas, however, places a
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premium on the policy that a party not be allowed to, in advance, release itself from its own

negligence without providing the unsuspecting participant a clear statement indicating this

intention.

       FFE and Conwell also cite Texas Engineering Extension Service v. Gifford as authority

for their assertion that the release agreement with Ramirez meets the express negligence

standards. Gifford involved a release agreement signed before participants began fire brigade

training, during which Gifford fell and injured himself. 2012 WL 851742, at *2. Specifically,

the release provided:

       1. In consideration for receiving permission to participate in Emergency Response
       Training, including but not limited to fire and rescue training, on behalf of my
       agency/organization, I hereby release, indemnify, and covenant not to sue the
       Texas Engineering Extension Service (TEEX), the Texas A & M University
       System, the State of Texas, their officers, agents or employees (Releasees) from
       any and all liability, claims, costs and causes of action arising out of or related to
       any property damage or personal injury, including death, that may be sustained by
       me, while participating in such activity, or while on the premises owned or leased
       by Releasees. I acknowledge there may be physically strenuous activities. I know
       of no physical or mental condition which would preclude my full participation.

       2. I am fully aware of the risks and hazards involved with Emergency Response
       Training, including but not limited to burns, heat stroke, heart attack, heat
       exhaustion, falls, and other related injuries, and I choose to voluntarily participate
       in said activity with full knowledge that said activity may be hazardous to me and
       my property.

       Id. at *2–3. The clause used in Gifford would be analogous to the one used in the case at

hand if it released TEEX “from any and all liability, claims, costs, and causes of action arising

out of [Gifford’s] participation in such activity.” Instead, the language in TEEX’s release was

much more specific and provided notice of the exact types of claims for which TEEX sought

exculpation. Indeed, Gifford was injured as the result of a hazard (falling) specifically listed in

the second paragraph of the release. Id. Thus, we conclude that the more specific language used




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in the release agreement in Gifford is distinguishable from the general language used in the

release in this case.

        In their brief to this court, FFE and Conwell also briefly appear to argue that the

fair-notice requirements should not apply in this case because Ramirez did not claim that her

injuries were a result of FFE and Conwell’s direct negligence but, instead, that FFE and Conwell

were vicariously responsible for the negligence of their employees. Because the fair-notice

requirements apply when a party attempts to procure a waiver of liability for claims resulting

from its own negligence, FFE and Conwell contend that we should not consider the elements of

fair notice where, as they assert here, the claim against them is not based on direct acts of

negligence by FFE and Conwell. We decline to consider this argument, however, because it was

not presented to the trial court. See TEX. R. APP. P. 33.1; FM Props. Operating Co., 22 S.W.3d

at 872–73 (stating that a reviewing court should consider only the questions presented to the trial

court); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) (“A motion

[for summary judgment] must stand or fall on the grounds expressly presented in the motion.”).

                                          CONCLUSION

        We conclude that to the extent Ramirez asserts a claim for negligence against FFE and

Conwell, the release does not bar Ramirez’s claim. Accordingly, we reverse the judgment of the

trial court and remand this cause for proceedings not inconsistent with this opinion.



                                                 Karen Angelini, Justice




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