In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-22-00393-CV ___________________________
GRISELDA RAMOS, Appellant
V.
RODRIGO HERNANDEZ AND FREIGHT PRO TRANSPORT, LLC, Appellees
On Appeal from County Court at Law No. 1 Tarrant County, Texas Trial Court No. 2021-005373-1
Before Kerr, Bassel, and Womack, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION
I. Introduction
On October 24, 2019, Appellant Griselda Ramos and her incapacitated adult
son Cristino were in a car accident with Appellee Rodrigo Hernandez, who was
driving for Appellee Freight Pro Transport, LLC. Ramos, as Cristino’s next friend,
sued Freight Pro in trial-court cause number 096-321522-20 and received court
approval of a confidential settlement agreement and release (CSAR). Around half a
year after signing the CSAR, Ramos sued Appellees in trial-court cause number 2021-
005373-1, seeking recovery for her own personal injuries. Appellees moved for
summary judgment, asserting the affirmative defense of release based on the CSAR,
and the trial court granted their motion.
In a single issue, Ramos argues that the trial court erred by granting Appellees’
summary-judgment motion because a genuine issue of material fact exists about
whether she released her personal claims in the CSAR. Because a latent ambiguity
exists in the CSAR, we sustain Ramos’s issue, reverse the summary judgment, and
remand the case to the trial court for further proceedings.
II. Background
Ramos sued Appellees for negligence to recover for the personal injuries she
suffered when Hernandez “failed to maintain a single lane and failed to maintain
control of his vehicle, causing a collision with [her] vehicle.” Appellees answered with
2 a general denial and a list of affirmative defenses, including release. They later moved
for a traditional summary judgment on that defense.
In their summary-judgment motion, Appellees pointed out that Ramos had
previously sued Freight Pro in cause number 096-321522-20, in which a final
judgment had been entered on March 10, 2021, and that Ramos had entered into a
CSAR with Freight Pro and its insurer to settle the claims arising from the accident.
Appellees attached as exhibits to their motion Ramos’s original petition in both cases,
the final judgment in cause number 096-321522-20, the 13-page CSAR, a copy of the
settlement check’s deposit receipt, and Ramos’s answer to their request for admissions
in which she admitted that she had been a plaintiff in the first lawsuit, Griselda Ramos,
as next friend to Cristino Ramos, Jr. v. Freight Pro Transport, LLC.
The original petition in cause number 096-321522-20 shows that Ramos had
sued Freight Pro in her capacity as next friend of her incapacitated adult son Cristino
and that the lawsuit was a “friendly suit” because the parties had reached a settlement
agreement requiring court approval. See 4 Tex. Prac. Guide Torts § 15:284 (explaining
that an enforceable settlement of an incompetent’s claim must be approved by the
court); see also Tex. R. Civ. P. 44(2) (stating that the “next friend” or his attorney of
record may, with the approval of the court, compromise suits and agree to
judgments). The title of the March 10, 2021 final judgment in that case states, “Final
Judgment Disposing of All Claims of Cristino Ramos, Jr.,” and reflects that the court
had approved the CSAR in full settlement of all claims, including disputed claims, “of
3 Plaintiff against Defendant.” The judgment identified Cristino as the “Plaintiff,”
dismissed “any and all claims and causes of action of Plaintiff against Freight Pro”
with prejudice, and ordered, adjudged, and decreed that Freight Pro and “its
respective agents, employees, servants, representatives, insurers, successors, and
assigns (as more fully defined in the [CSAR] approved by the Court) stand[] fully
released and discharged of and from all claims, demands, actions or causes of action
arising out of the occurrence described in the pleadings herein.”
In contrast to the final judgment, the CSAR, signed 13 days later, on March 23,
2021, defined “Plaintiff” much more broadly, stating that the term “shall be construed
to encompass Griselda Ramos, Cristino Ramos, Jr., individually along with their
spouses (if any), children (if any), and heirs, together with any of their respective
executors, administrators, successors, and assigns, and estates.” “Defendant,” for
purposes of the release, included Freight Pro and its employees, among others. The
CSAR defined the October 24, 2019 motor-vehicle accident as the “Occurrence,” and
cause number 096-321522-20 as the “Litigation.” The CSAR listed $18,000 in
exchange for a broad release, stating,
Plaintiff releases, acquits, and forever discharges Defendant for and from any and all past, present, or future obligations, claims, demands, actions, or causes of action of any kind whatsoever as a result of the Occurrence, which Plaintiff has or may ever have had, whether based in federal law or state law, contract or tort, common law or statutory law, regulation, or ordinance, whether asserted previously or not as to Defendant, including but not limited to those set out in Cause No. 096- 321522-20.
4 The CSAR also provided that “Plaintiff” released “Defendant” from “any claims or
causes of action of any kind whatsoever which allegedly caused Plaintiff to sustain
damages” and provided a laundry list of types of damages. The CSAR further stated
that “Plaintiff accepts and acknowledges receipt of the consideration . . . as a full,
complete, final, and binding compromise of matters involving disputed issues as to
Defendant as a result of the Occurrence, regardless of whether too little or too much
may have been given or accepted.”
The CSAR’s “procurement of consideration” section contained several express
acknowledgments by “Plaintiff” regarding the CSAR’s terms, conditions, and effects
and noted that in making the settlement, “Plaintiff” had the benefit of the advice of
counsel “of their own choice.” It also expressly acknowledged that
[t]he consideration set forth herein is the totality of the consideration exchanged and is all the consideration which they will ever receive, either directly or indirectly, by any means whatsoever, from or on behalf of Defendant as a result of the Occurrence, the Litigation, or any events or transactions described herein.
The CSAR included a merger clause stating that it contained the entire agreement
“between Plaintiff and Defendant with regard to the matters set forth herein” and
that there were “no other understandings or agreements, verbal or otherwise, between
Plaintiff and Defendant.”
Ramos signed the CSAR’s final page on March 23, 2021. The jurat reflects that
Ramos appeared “individually, and as next friend of Cristino,” and “upon her oath
stated that she ha[d] read the foregoing instrument and executed it for the purposes
5 and consideration therein expressed.” It also contained an acknowledgment of
Ramos’s counsel, “attorney of record for Griselda Ramos, individually, and as next
friend of Cristino,” stating “that prior to their execution of this [CSAR], [she]
explained the document to them.”
In her summary-judgment response, Ramos argued that there was a genuine,
material fact issue about whether she had released her individual claims against
Appellees in the CSAR. She asserted that the first lawsuit had been for Cristino, that
he was not a party to the current lawsuit, that she had entered the CSAR to settle
Cristino’s claims against Freight Pro, and that the CSAR was not a binding contract as
to her own personal-injury claims. Ramos contended that “[t]here was never a mutual
understanding and assent to the [CSAR] signed by [her] for her individual bodily
injury claim[,] i.e.[,] no meeting of the minds.” Ramos further argued that an
ambiguity existed based on the March 2020 settlement negotiations. 1
1 Ramos also observed, “Undoubtedly, a procured transcript of [the proceeding in cause number 096-321522-20] would show that the parties agreed the settlement in question was for Cristino . . . only.” But Ramos did not indicate in her summary- judgment response that she had tried to procure the transcript and did not request a continuance to do so. In her appellate brief, Ramos attempts to incorporate portions of the hearing transcript, but “Rule 166a(c) forecloses post-summary-judgment supplementation.” Med. RX Servs. LLC v. Georgekutty, No. 02-21-00017-CV, 2021 WL 6069102, at *3 (Tex. App.—Fort Worth Dec. 23, 2021, no pet.) (mem. op.) (noting that appellants sought to supplement their summary-judgment evidence after summary judgment had been granted). This is a summary-judgment appeal, and the transcript was not before the trial court when it made its ruling; accordingly, we may not consider it. See Tex. R. Civ. P. 166a(c); Balmorhea Ranches, Inc. v. Heymann, 656 S.W.3d 441, 446 (Tex. App.—El Paso 2022, no pet.) (“As a general rule, the trial court only considers the record as it properly appears when the motion for summary
6 To her response, Ramos attached the original petitions in each case, her
October 3, 2019 letter of guardianship for Cristino, the final judgment in cause
number 096-321522-20, the CSAR, and a March 2020 email chain. 2 That chain begins
with an email from Sheila Carney, a senior claims examiner at Athens Administrators
on March 27, 2020, to Isabel Alcantara at Ben Abbot & Associates, PLLC, stating
“We are in receipt of the medical records and bills you provided for your client,
Cristino Ramos Jr. and have had the opportunity to review same. At this time, we
offer the sum of $10,000 to resolve your client’s bodily injury claim.” Alcantara
replied the following Monday, March 30, 2020, stating, “Thank you for your offer of
$10,000.00, at this time my client has rejected your offer. I have been instructed to
counter demand at $65,000.00.”
Although Ramos had filed her notice-of-Section-18.001 affidavits 11 days
before filing her summary-judgment response, she did not mention or attach any
evidence to her summary-judgment response showing her medical expenses incurred
in the accident or demonstrating the parties’ awareness (or lack thereof) of those
expenses when the CSAR was entered in 2021, and the notice does not include the
affidavits. Instead, her notice states that the actual affidavits were “not being filed
judgment is heard.”); see Hon. David Hittner, Lynne Liberato, et al., Summary Judgments in Texas: State & Federal Practice, 62 S. Tex. L. Rev. 99, 157 (2022) (“Rule 166a(c) forecloses post-summary judgment supplementation.”). 2 Ramos also indicated her intent to use some of Appellees’ discovery responses but did not attach any to her summary-judgment response.
7 with the [c]ourt.” On August 12, 2022, Appellees filed a Section 18.001 counter-
affidavit and attached a medical-bill-audit analysis; they filed a supplemental counter-
affidavit on September 16, 2022. The analysis attached to each affidavit shows that
Ramos underwent medical treatment starting in July 2020.3
The trial court held the summary-judgment hearing on July 29, 2022, but it did
not sign the order granting summary judgment until September 26, 2022. See Tex. R.
Civ. P. 166a(c) (“The judgment sought shall be rendered forthwith if [the summary-
judgment evidence] on file at the time of the hearing, or filed thereafter and before
judgment with permission of the court, show[s] that . . . there is no genuine issue as to
any material fact.” (emphasis added)); Lance v. Robinson, 543 S.W.3d 723, 733 (Tex.
2018) (holding that deeds on file with the court at the time of the summary-judgment
hearing were proper summary-judgment evidence).
III. Discussion
In her sole issue, Ramos argues that the trial court erred by granting Appellees’
motion because a genuine issue of material fact exists as to a latent ambiguity and no
3 In the medical-bill-audit analysis, Appellees’ expert opined that the $67,540 incurred by Ramos for treatment between July 1, 2020, and May 25, 2022, had a reasonable value of $16,317.56. In the medical-bill-audit analysis attached to their supplemental counter-affidavit, their expert opined that the $103,265 in billed charges was excessive and that the total reasonable charges for Ramos’s medical expenses were $16,628.66.
8 meeting of the minds. 4 She complains that a material fact issue exists about whether
the parties intended for the CSAR’s scope to cover both Cristino’s claims and her
claim for her own injuries related to the accident. Ramos points out that cause
number 096-321522-20’s judgment shows that she was never an individually named
party before filing her own suit on September 13, 2021, and that she had acted in the
prior suit solely in her capacity as Cristino’s legal guardian. Ramos further argues that
her personal claims for damages were never discussed during the settlement
negotiations in Cristino’s case, directing us to the March 2020 email chain. She also
directs us to the CSAR’s footer, which states, “Confidential Settlement Agreement
and Release – Cristino Ramos, Jr.,” and to the March 11, 2021 check issued in
consideration of the CSAR, which lists a single claimant—“Ramos Jr., Cristino”—and
“claim no. 3500833,” the same claim number referenced in the March 2020 email
chain.
A. Standard of review and applicable law
We review a summary judgment de novo. Travelers Ins. v. Joachim, 315 S.W.3d
860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable
to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors
Ramos also raises mutual and unilateral mistake, but as Appellees point out, 4
Ramos did not raise either of these arguments in her summary-judgment response. Accordingly, we may not consider them as a basis for reversal. See Tex. R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”).
9 could, and disregarding evidence contrary to the nonmovant unless reasonable jurors
could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,
848 (Tex. 2009). 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).
A defendant is entitled to summary judgment on an affirmative defense if the
defendant conclusively proves all elements of that defense. Frost Nat’l Bank v.
Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c). Once
the defendant produces sufficient evidence to establish the right to summary
judgment, the burden shifts to the plaintiff to come forward with competent
controverting evidence that raises a fact issue. Van v. Peña, 990 S.W.2d 751, 753 (Tex.
1999); see Fitts v. Richards-Smith, No. 06-15-00017-CV, 2016 WL 626220, at *15 (Tex.
App.—Texarkana Feb. 17, 2016, pet. denied) (mem. op.) (stating that once the
affirmative defense of release is properly pleaded and proved, the burden shifts to the
opposing party to produce evidence raising a fact issue on a legal justification for
setting aside the release).
In general, a release surrenders legal rights or obligations between the parties to
an agreement, extinguishes those claims or causes of action as effectively as would a
prior judgment between the parties, and is an absolute bar to any right of action on
the released matter. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex.
1993). To establish the affirmative defense of release, the movant is required to prove
the elements of a valid and binding contract: (1) an offer; (2) acceptance; (3) a meeting
10 of the minds; (4) each party’s consent to the terms; and (5) execution and delivery of
the contract with the intent that it be mutual and binding. Paveway Concrete Prods., Inc. v.
Lee Sicilio Ltd. Three, No. 2-03-330-CV, 2004 WL 1799856, at *3 (Tex. App.—Fort
Worth Aug. 12, 2004, no pet.) (mem. op.).
A release is subject to the normal contract-construction rules, Finley Res., Inc. v.
Headington Royalty, Inc., No. 21-0509, 2023 WL 3399104, at *5 (Tex. May 12, 2023),
including the rules of ambiguity, D.R. Horton-Tex., Ltd. v. Savannah Props. Assocs., L.P.,
416 S.W.3d 217, 226 (Tex. App.—Fort Worth 2013, no pet.). “If contract language
can be given a certain or definite legal meaning when considered as a whole, and in
light of the objective circumstances surrounding its execution, the contract is not
ambiguous and must be construed as a matter of law.” Finley Res., Inc.,
2023 WL 33991104, at *6.
We considered ambiguity in the context of a release in another car-wreck case,
Traweek v. Long, No. 02-20-00311-CV, 2021 WL 733085, at *4 (Tex. App.—Fort
Worth 2021, pet. denied) (mem. op.). In Traweek, the appellant and her husband
signed a release in which they released “any and all claims” arising from the car
accident and received a $6,500 settlement amount payable to the appellant’s husband.
Id. at *1. When the appellant sued a year later in her individual capacity, the appellee
raised the affirmative defense of release. Id. The appellant did not respond to requests
for admission, which resulted in deemed admissions that she had freely and
voluntarily signed the release agreement after reading it and after her attorney had
11 explained its import to her and that she had “fully understood” the release’s “terms
and legal effect.” Id.
To her summary-judgment response, the appellant attached letters between her
counsel and the appellee’s insurer. Id. The letters were sent after she and her husband
had signed the release but before she filed suit, and they showed an unsuccessful
attempt to settle her individual claims and supported her argument that the release
applied only to claims arising from her husband’s injuries; she asserted ambiguity and
mutual mistake to avoid the release. Id. The trial court granted summary judgment,
but we could not infer from that ruling that the appellees’ objections to the appellant’s
parol evidence had been sustained. See id. at *2 (citing Seim v. Allstate Tex. Lloyds,
551 S.W.3d 161, 166 (Tex. 2018)). We noted that the appellant bore the burden of
proof on her two defenses to the appellee’s release. Id.
In our ambiguity discussion, we observed, “An ambiguity in a release may be
patent or latent. A patent ambiguity is evident on the face of the release. A latent
ambiguity occurs when a facially unambiguous release is applied to its subject matter
and an ambiguity appears by reason of some collateral matter.” Id. at *4 (citations
omitted); see also URI, Inc. v. Kleberg Cnty., 543 S.W.3d 755, 765 (Tex. 2018) (“Contract
ambiguity comes in two flavors: patent or latent.”).
We determined in Traweek that the release’s language contained a latent
ambiguity because it allowed two reasonable interpretations of its scope: (1) the
agreement released both the appellant’s and her husband’s claims arising from the
12 accident or (2) the agreement released the appellant’s husband’s claims and the
appellant’s derivative claims arising from her husband’s injuries, but not her individual
negligence claim arising from her own injuries. 2021 WL 733085, at *5. The latent
ambiguity allowed the admission of parol evidence to determine the parties’ intent
regarding the release’s intended scope. Id. The appellant’s post-release settlement
negotiations on her individual negligence claim provided objective evidence of the
surrounding circumstances of the parties’ mutual understanding of the prior release’s
effect and raised a genuine, material fact issue regarding the release’s scope and
interpretation, making summary judgment inappropriate. Id.
We further concluded that the appellant’s deemed admissions were not
outcome-determinative because although she admitted having voluntarily signed and
understood the release’s terms, she did not admit what those terms meant regarding
the release’s scope. Id. The admissions merely established that the release agreement
was valid on its face. 5 Id.
One of our sister courts faced a similar issue in Lowe v. Watson, another
automobile-injury case. No. 01-20-00251-CV, 2020 WL 7349506, at *1 (Tex. App.—
5 We also determined that the appellant had raised a fact issue as to mutual mistake based on the post-settlement negotiations in which the appellant sought $22,755.50 in past medical expenses and rejected the insurer’s offers of $8,504 and $12,900, illustrating the “tension between the broad language of the release agreement and the parties’ objective manifestations of their apparent common understanding of the release’s more narrow scope.” Traweek, 2021 WL 733085, at *5; see also Williams v. Glash, 789 S.W.2d 261, 262–65 (Tex. 1990) (reversing summary judgment based on mutual mistake).
13 Houston [1st Dist.] Dec. 15, 2020, no pet.) (mem. op.). The appellant, his wife, and
their two children were rear-ended by the appellee. Id. The accident damaged the
appellant’s car and his knee. Id. A month after the accident, the appellant and his wife
signed three virtually identical settlement releases with the appellee’s insurer—the only
differences were the named family members and the dollar amounts. Id. The first and
second releases were signed by the appellant and his wife as to each child for $250. Id.
The third release was signed by the appellant and his wife for $500. Id.
The insurer sent four checks payable to the appellant and his wife: (1) a
$250 check with their daughter’s name; (2) a $250 check with their son’s name; (3) a
$500 check listing the appellant’s wife’s name; and (4) a $951.26 check listing the
appellant’s name. Id. It also sent two checks directly to the body shop handling the car
repairs. Id. at *1 n.1. The four checks sent to the appellant and his wife listed the same
claim number that appeared on the three releases. Id. at *4, *5. None of the releases
listed the $951.26 in the fourth check. Id. at *5.
The appellant and his wife deposited the first three checks but did not deposit
the fourth check, rejecting it because the appellant’s medical bills exceeded that
amount. Id. at *1. After the insurer claimed that the third release had released all the
appellant’s claims, the appellant sued and, in response to a summary-judgment motion
on release, argued that he had signed the third release to settle only his derivative loss-
of-consortium claims and not to release his own personal-injury claims. Id. at *2.
14 The appellant argued that the settlement checks contradicted the third release’s
plain language, raising a genuine issue of material fact regarding whether the parties
had intended for that release to cover his individual-capacity claims. Id. To his
response, he attached the six checks, his deposition testimony, the three release
agreements, and the motor-vehicle-crash report. Id. In his deposition, the appellant
testified, “I signed a release for my wife. I did not sign a release for myself,” and he
stated that he had rejected the $951.26 check because his orthopedic-treatment costs
had exceeded that amount. Id. at *5.
Our sister court concluded that the third release was susceptible to two
reasonable interpretations: (1) a release of only the appellant’s loss-of-consortium
claim and (2) a release of both his claims for loss of consortium and for negligence. Id.
Based on the latent ambiguity, the court determined that the trial court erred by
granting summary judgment on the appellant’s claim because a genuine issue of
material fact existed about the parties’ intent. Id.
B. Application
The CSAR defined “Plaintiff” to include Ramos individually, in contrast to the
judgment in cause number 096-321522-20, which identified “Plaintiff” as Cristino and
which approved the CSAR in settlement of Cristino’s claims, with Ramos acting on
Cristino’s behalf as his next friend and legal guardian. See Tex. R. Civ. P. 44(2). The
judgment in cause number 096-321522-20 does not address Ramos’s individual
claims. Although the CSAR attempted to dispose of claims “whether asserted
15 previously or not as to Defendant, including but not limited to those set out in Cause
No. 096-321522-20,” the March 2020 email chain, which refers to a single client—
Cristino—and the settlement check made out to Cristino contradict the disposal of
both Cristino’s and Ramos’s claims. See Traweek, 2021 WL 733085, at *5; Lowe,
2020 WL 7349506, at *2. That is, in context, the release is susceptible to two
reasonable interpretations: (1) a release of all Cristino’s and Ramos’s claims and (2) a
release of Cristino’s claims and Ramos’s derivative claims as his legal guardian.
Appellees’ Section 18.001 counter-affidavits, which were on file when the trial court
granted summary judgment, show that Ramos began medical treatment in July 2020,
indicating that she had a claim for individual injuries in addition to her derivative
claims as to Cristino.
Viewing the evidence in the light most favorable to Ramos as the nonmovant
and indulging every reasonable inference and resolving any doubts in her favor, see
Mann Frankfort, 289 S.W.3d at 848; 20801, Inc., 249 S.W.3d at 399, we conclude that
Ramos has met her burden to raise a genuine issue of material fact regarding
ambiguity and meeting of the minds, and we sustain her sole issue.
IV. Conclusion
Having sustained Ramos’s sole issue, we reverse the trial court’s judgment and
remand the case for further proceedings.
16 /s/ Elizabeth Kerr Elizabeth Kerr Justice
Delivered: August 10, 2023