                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                                NO. 2-09-465-CV


ROBERT FLORES                                                        APPELLANT

                                        V.

DONALD EDWARD HANSEN                                                   APPELLEE
D/B/A SANDPIPER AVIATION


                                    ------------

        FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                        MEMORANDUM OPINION1
                                    ------------

     In two issues, appellant Robert Flores appeals the trial court‘s order that

granted appellee Donald Edward Hansen d/b/a Sandpiper Aviation‘s (Hansen‘s)

motion for summary judgment. 2        Flores argues that neither of Hansen‘s




1
See Tex. R. App. P. 47.4.
2
Sandpiper Aviation, a Fort Worth business, sells fuel and stores aircraft.
affirmative defenses—accord and satisfaction and release—precludes his claims.

We affirm in part and reverse and remand in part.

                                Background Facts

      Flores claims that in July 2007, he was working for Hansen when he fell

into a hole on a catwalk and injured himself. Flores received treatment for his

injuries. Hansen paid the cost of the ambulance that took Flores to the hospital

and also paid Flores his regular wages when he was unable to work because of

his injuries. Flores eventually returned to work.

      Flores asked Hansen if Hansen would reimburse him for out-of-pocket

medical expenses that were not being covered by private health insurance.

Hansen repeatedly asked Flores to bring in the bills so he could pay them.

Flores eventually brought Hansen medical bills totaling $1,154.31. Hansen told

an employee to create a one-page document dated December 18, 2007, and

titled ―Final Settlement of expenses for accident Robert Flores had while on the

job‖ (the December 18, 2007 document).          The document itemized Flores‘s

$1,154.31 worth of medical expenses that were accumulated from eleven

particular bills. At the bottom of the document it recites, ―In addition was paid

sick pay and Medstar was paid $1,100.00.‖           Flores signed and dated the

document.

      When Flores‘s counsel asked Hansen in a deposition to explain the

purpose of the document, Hansen said,

      [Flores] was getting along real good. He was not having a problem.
      And I called him in and talked to him, and I said, [―]We need to bring

                                         2
      this thing to an end.[‖] And I did that for one sole reason. He kept
      on hurting himself and aggravating that arm with other incidents
      after.

             And I told him, [―]You bring -- bring me all your bills through
      this day, and I will pay them . . . . But as of this date, we need to
      bring this to an end because you are repeatedly hurting yourself,
      and you‘re driving my trucks and cars, and I want to get this over
      with.[‖] And the idea behind this whole deal was to bring it to an
      end.

Hansen expressed his belief that the document served to release him from

further claims by Flores. Hansen stated in an affidavit that he told Flores ―that

[Flores] would receive no future payments from [Hansen] for the incident and that

this was [Hansen‘s] final payment for all bills, expenses[,] and any other

damages associated with the alleged incident.‖ However, Hansen also said that

if Flores had brought him other bills that were dated prior to the date Flores

signed the settlement document, Hansen would have paid them.

      Flores said that by signing the document, he only agreed to not seek more

compensation from Hansen for the bills Hansen had paid, not for other damages.

Flores said in his affidavit, ―Hansen never told me that the . . . reimbursement

would constitute final payment due me because of the 7/2/07 incident.‖         He

explained, ―I never intended to waive further medical expenses or any of the

other damages . . . by accepting payment of [medical] expenses or signing the

12/18/07 Document.‖

      Flores took Hansen‘s check for $1,153.31. In the bottom left corner of the

check, under ―MEMO,‖ it states in part, ―Final Settlement of expenses for

accident.‖   After receiving and depositing the check, Flores incurred more

                                        3
medical expenses that he contends are related to his fall. Flores eventually quit

his job with Hansen.

      Based on the injuries sustained during his fall, Flores filed a lawsuit to

assert claims against Hansen for negligence and gross negligence.         Flores

sought damages related to medical expenses, out-of-pocket economic losses,

lost earning capacity, physical pain, physical impairment, disfigurement, and

mental anguish. Hansen answered by way of a general denial; he also pled

affirmative defenses of accord and satisfaction and release based on the one-

page ―Final Settlement‖ document and the $1,153.31 check that Flores had

negotiated.

      Hansen filed a motion for summary judgment based on both of his

affirmative defenses.    Flores responded to Hansen‘s motion, contending that

neither the accord and satisfaction doctrine nor the release doctrine applies.3

The trial court granted Hansen‘s motion and dismissed Flores‘s suit. Flores filed

notice of this appeal.

       The Propriety of the Trial Court’s Summary Judgment Decision

                               Standard of review

      We review a summary judgment de novo. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We consider the

evidence presented in the light most favorable to the nonmovant, crediting



      3
     Hansen objected to some of the evidence that Flores attached to his
summary judgment response. The trial court overruled each of the objections.

                                       4
evidence favorable to the nonmovant if reasonable jurors could, and disregarding

evidence contrary to the nonmovant unless reasonable jurors could not. Id. We

indulge every reasonable inference and resolve any doubts in the nonmovant‘s

favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).

      Release and accord and satisfaction are affirmative defenses. Tex. R. Civ.

P. 94. By asserting these affirmative defenses, appellee assumed the burden to

plead and produce evidence to support those claims. A defendant is entitled to

summary judgment on an affirmative defense if the defendant conclusively

proves all the elements of the affirmative defense. Chau v. Riddle, 254 S.W.3d

453, 455 (Tex. 2008); see Tex. R. Civ. P. 166a(b), (c). To accomplish this, the

defendant-movant must present summary judgment evidence that establishes

each element of the affirmative defense as a matter of law. Ryland Group, Inc. v.

Hood, 924 S.W.2d 120, 121 (Tex. 1996).        Any deficiency in the proof of an

affirmative defense is chargeable against appellee, as the party asserting it. Ron

Craft Chevrolet, Inc. v. Davis, 836 S.W.2d 672, 674 (Tex. App.—El Paso 1992,

writ denied).

Accord and satisfaction

      In appellant‘s first issue, he argues that the trial court could not have

properly granted summary judgment based on appellee‘s accord and satisfaction

defense.4   In the trial court, appellee moved for summary judgment on that



      4
      Rule 94 of the Rules of Civil Procedure includes accord and satisfaction
as one of several affirmative defenses. See Tex. R. Civ. P. 94.

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defense based on appellant‘s negotiating appellee‘s $1,153.31 check that

includes the language ―Final Settlement of expenses for accident.‖     Appellee

relied on common law and on a provision of the Business and Commerce Code.

       Section 3.311 of the Texas Business and Commerce Code states that an

accord and satisfaction occurs when a person in good faith tenders an instrument

to the claimant as full satisfaction of the claim, the amount of the claim is

unliquidated or subject to a bona fide dispute, and the claimant obtains payment

of the instrument.    Tex. Bus. & Com. Code Ann. § 3.311(a) (Vernon 2002).

A ―claim is discharged if the person against whom the claim is asserted proves

that the instrument or an accompanying written communication contained a

conspicuous statement to the effect that the instrument was tendered as full

satisfaction of the claim.‖ Id. § 3.311(b) (emphasis added); see Melendez v.

Padilla, 304 S.W.3d 850, 852–53 (Tex. App.—El Paso 2010, no pet.) (explaining

that the ―accord is merely a new agreement whereby one party agrees to give or

perform, and the other to accept something other than or different from what she

is . . . entitled to‖ and that ―[s]atisfaction is then the performance of the

agreement‖). Section 3.311 applies to negotiable instruments. Melendez, 304

S.W.3d at 852-53.

       Under the common law, ―Texas courts have noted that ‗[c]laims arising out

of the commission of a tort are particularly applicable subjects for accord and

satisfaction.‘‖   Case Funding Network, L.P. v. Anglo-Dutch Petroleum Intern.,

Inc., 264 S.W.3d 38, 49 (Tex. App.—Houston [1st Dist.] 2007, pet. denied)


                                        6
(quoting Marsalis v. Garre, 391 S.W.2d 522, 525 (Tex. Civ. App.—Amarillo 1965,

writ ref‘d n.r.e.)). However,

      for this defense to prevail, there must be a dispute and an
      unmistakable communication to the [plaintiff] that tender of the
      reduced sum is upon the condition that acceptance will satisfy the
      underlying obligation. The parties must specifically and intentionally
      agree to the discharge of one of the parties‘ existing obligations . . . .
      ‗A valid accord and satisfaction requires that there initially be a
      legitimate dispute between the parties about what was expected.‘

Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 863 (Tex. 2000)

(citation omitted) (quoting Bueckner v. Hamel, 886 S.W.2d 368, 372 (Tex. App.—

Houston [1st Dist.] 1994, writ denied)). Thus, to be an accord, ―the statement

accompanying the tender of a sum less than the [obligation between the parties]

must be so clear, full[,] and explicit that it is not susceptible of any other

interpretation.‖ Jenkins v. Henry C. Beck Co., 449 S.W.2d 454, 455 (Tex. 1970). 5

A necessary element of accord and satisfaction is that the claim amount was

disputed. That is, to prevail on the defense of accord and satisfaction, Hansen

must have presented summary judgment evidence that he and Flores disputed

the amount or type of damages Hansen should pay. See Lopez, 22 S.W.3d at

863. There is no evidence that Hansen and Flores disagreed. Hansen does not

dispute that Flores asked him to cover his out-of-pocket medical expenses.

      5
        The parties have not cited authority to show that we should analyze
statutory accord and satisfaction separately from the common law doctrine. One
court has noted that ―section 3.311 does not conflict with the common-law
doctrine of accord and satisfaction.‖ Milton M. Cooke Co. v. First Bank and
Trust, 290 S.W.3d 297, 304 (Tex. App.—Houston [1st Dist.] 2009, no pet.).
―Section [3.311] is based on a belief that the common law rule produces a fair
result.‖ Tex. Bus. & Com. Code Ann. § 3.311, cmt. 3.

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Hansen asked Flores to bring in every medical bill Flores had received ―to date‖

and Hansen subsequently paid all the bills Flores provided.             Hansen‘s own

affidavit defeats his argument when he unequivocally states that ―Flores never

asked [him] to pay [Flores] anything else or compensate him in any other way as

a result of the incident.‖

      Accord and satisfaction also ―requires a bargaining evidenced in a new

contract,‖ Bueckner, 886 S.W.2d at 372. Hansen has not presented evidence

that any type of bargaining occurred with Flores.             In fact, the evidence

establishes that Flores asked for $1,154.31 plus sick pay and ambulance

expenses and that he received those exact amounts. There is no evidence that

he accepted something other than or different from what he was requested on

that date.

      Lastly, Hansen has failed to prove that he communicated to Flores that he

was tendering payment to satisfy all claims Flores could have against Hansen as

a result of the incident in such ―clear, full, and explicit‖ terms that Flores could not

possibly mistake Hansen‘s intent.       Flores disputes that he was told that the

$1,154.31 would be the final payment for every claim against Hansen resulting

from his injuries. Both the memo on the check and the separate document dated

December 18, 2007 refer only to ―expenses.‖ Hansen failed to prove the parties

specifically and intentionally agreed that Flores would be relinquishing any and

all claims against Hansen that might arise from the incident for the payment of

$1,154.31.


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      Accordingly, Hansen has failed to present evidence that there was a bona

fide dispute over the amount owed and that he clearly communicated the entirety

of the subject matter the accord purported to cover. Therefore, Hansen is not

entitled to summary judgment on his accord and satisfaction defense.

                                     Release

      Appellant next argues that the release document is limited and does not

bar his current claims.6 A release is an agreement or contract in which one party

agrees that a duty or obligation owed by the other party is discharged

immediately or on the occurrence of a condition. Nat’l Union Fire Ins. Co. of

Pittsburgh, PA. v. Ins. Co. of N. Am., 955 S.W.2d 120, 127 (Tex. App.—Houston

[14th Dist.] 1997), aff’d, 20 S.W.3d 692 (Tex. 2000). It is subject to the normal

rules of contract construction, including the rules of ambiguity. Id. A release

extinguishes a cause of action and bars recovery on the released matter.

Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993).

      A release does not have to ―anticipate and identify each potential cause of

action relating to the release‘s subject matter,‖ Keck, Mahin & Cate v. Nat’l Union

Fire Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692, 698 (Tex. 2000), but to preclude

a claim, the release must ―mention‖ it. Victoria Bank & Trust Co. v. Brady, 811

S.W.2d 931, 938 (Tex. 1991). Although releases include claims existing at the

time of execution, they may also include unknown claims and damages that



      6
        Flores does not appear to dispute that the December 18, 2007 document
is a release, as he refers to the document as such throughout his brief.

                                        9
develop in the future. See Keck, Mahin & Cate, 20 S.W.3d at 698. However, a

release does not necessarily or automatically include future claims without

evidence of such intent. Niemeyer v. Tana Oil & Gas Corp., 39 S.W.3d 380, 388

(Tex. App.—Austin 2001, pet. denied) (―We note that while the release applied to

all past and present claims at the time of its execution, the trial court could have

found that it did not bar prospective claims that might arise in [the] future.‖);

Priem v. Shires, 697 S.W.2d 860, 864 (Tex. App.—Austin 1985, no writ).

      The December 18, 2007 document is titled ―Final Settlement of expenses

for accident Robert Flores had while on the job,‖ lists Flores‘s medical bills, and

bears the note ―In addition was paid sick pay and Medstar was paid $1,100.00.‖

The document does not say ―release,‖ but its content clearly reflects an

agreement to finally settle any claim by Flores for payment by Hansen of the

specified expenses listed therein. The document makes no reference to any

other claims, past or future. Flores does not dispute Hansen‘s evidence that the

bills represented the entirety of Flores‘s medical expenses at the time. Thus, the

release in this case is very narrow and limited.        The December 18, 2007

document serves as a final settlement of all Flores‘s medical expenses incurred

prior to the date of Flores‘s signature.

      Hansen argues that the definition of ―expenses‖ should be expanded to

cover other past damages as well, based on the notation at the bottom of the

document ―In addition was paid sick pay and Medstar was paid $1,100.00.‖

Hansen argues that expenses cannot mean what expenses normally and usually


                                           10
means because sick pay is not an expense. His argument ignores the use of the

phrase ―in addition‖ and the fact that the sick pay and Medstar‘s ambulance

payment are separated from the itemized list of expenses and located below the

―total‖ amount of the settlement.       The use of the term ―expenses‖ is not

ambiguous, and the Court will enforce it as written.       Heritage Res., Inc. v.

NationsBank, 939 S.W.2d 118, 121 (Tex. 1996).

      We therefore affirm the trial court‘s ruling on Hansen‘s summary judgment

motion only as to those medical expenses incurred prior to December 18, 2007.

As to all other claims for expenses or damages, we reverse.

                                     Conclusion

      Summary judgment was improper based on both the affirmative defense of

accord and satisfaction and the affirmative defense of release for expenses and

damages other than the expenses settled and released in the December 18,

2007 document. We affirm the trial court‘s summary judgment as to medical

expenses incurred prior to December 18, 2007, and we remand the cause to the

trial court for further proceedings on all other issues.



                                               LEE GABRIEL
                                               JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

DELIVERED: September 16, 2010




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