William E. Robinson, Jr. v. Boral Windows LLC F/K/A Headwaters Windows, LLC.

• Court: Court of Appeals of Texas
• Decided: June 10, 2024
• Docket: 05-22-01184-CV
• Status: Published

Opinion

Affirmed and Opinion Filed June 10, 2024

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-01184-CV

WILLIAM E. ROBINSON, JR., Appellant V. BORAL WINDOWS LLC F/K/A HEADWATERS WINDOWS, LLC, HEADWATERS WINDOWS, LLC N/K/A BORAL WINDOWS LLC, AND HEADWATERS INCORPORATED, Appellees

On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-16397

MEMORANDUM OPINION Before Justices Partida-Kipness, Pedersen, III, and Garcia Opinion by Justice Partida-Kipness This case involves a contract dispute following the 2016 purchase of William

E. Robinson, Jr.’s window-manufacturing businesses1 by appellee Headwaters

Windows, LLC (Headwaters Windows). At trial, the trial court granted Appellees’

motion for directed verdict as to Robinson’s counterclaims. Robinson appeals that

order, and we affirm.

1 Krestmark Industries, L.P., Crest Vinyl Extrusions, LLC, and Legacy Vinyl Windows, LP (collectively, Krestmark or the Krestmark Entities). BACKGROUND

In 2016, Headwaters Windows2 purchased Krestmark for over $240 million.

At that time, Headwaters Incorporated was the parent company of Headwaters

Windows. After the sale, Robinson was employed by Headwaters Windows in the

position of President. His employment agreement included non-solicitation and non-

competition provisions. On May 8, 2017, Boral Industries (Boral) acquired

Headwaters Windows and Headwaters Incorporated. Boral terminated Robinson’s

employment on May 22, 2017. In the underlying proceeding, Boral Windows, LLC

f/k/a Headwaters Windows, LLC (Boral Windows), sued Robinson for purportedly

violating the covenants not to compete in his employment agreement. Robinson

asserted various counterclaims, some of which were dismissed before trial. After the

close of evidence, the trial court granted Appellees’ motion for directed verdict on

Robinson’s remaining counterclaims. Although we affirm the directed verdict on

purely legal grounds, a brief discussion of the underlying transactions and relevant

agreements3 is necessary for context.

I. Headwaters Windows Acquires Krestmark

In 2016, Krestmark marketed itself to potential buyers through a retained

financial advisor, Duff & Phelps Securities, LLC (D&P). To protect Krestmark’s

2 Headwaters Windows was created in July 2016 to purchase Krestmark. 3 The agreements and other documents relevant to our decision are (1) the Confidentiality Agreement and two letters of intent signed before Headwaters Windows acquired Krestmark, (2) Robinson’s August 19, 2016 Employment Agreement with Headwaters Windows, and (3) the Release and Waiver signed by Robinson on June 29, 2017, following his termination. –2– identity, D&P’s marketing materials identified Krestmark by a code name, LoneStar,

and designated the acquisition opportunity “Project LoneStar.” To obtain

Krestmark’s identity and conduct negotiations, the Treasurer of Headwaters

Incorporated signed a Confidentiality Agreement on April 14, 2016. In paragraph 10

of the Confidentiality Agreement, Headwaters Incorporated agreed not to disclose

certain information related to the proposed purchase of Krestmark without the prior

written consent of Krestmark:

Without the Company’s4 prior written consent, you shall not, and you shall direct your Representatives not to, (i) disclose to any Person the fact that the Company has made the Confidential information available to you, that you are considering a proposed Transaction or that discussions or negotiations are taking place or have taken place concerning a proposed Transaction, or any of the terms:, conditions or other facts with respect to any such Transaction, including the status and/or timing thereof, or (ii) make any contact of any nature regarding a proposed Transaction (including inquiries or requests concerning Confidential Information) with any supplier, customer, labor union, landlord, lessor, bank or other lender of or to the Company or any of its affiliates.

On June 29, 2016, Headwaters Incorporated submitted a Letter of Intent (Original

LOI) to D&P in which Headwaters Incorporated expressed its intent to acquire

Krestmark for a purchase price of $240 million. The Original LOI included

statements concerning anticipated employment agreements with Robinson and

Krestmark’s management team. On July 25, 2016, Headwaters Incorporated

submitted a Second Letter of Intent (Second LOI) to Krestmark Industries, L.P. The

4 “Company” referred to the Krestmark Entities. –3– Second LOI again reflected a purchase price of $240 million. It also included

statements concerning Headwaters Incorporated’s plans to continue to employ

Krestmark’s employees and management team following the acquisition and to

require non-competition and non-solicitation agreements from them. The parties also

agreed “to keep confidential the existence, status and terms of this LOI, the proposed

transaction and the negotiations relating thereto.” They further agreed the approval

of Headwaters Incorporated, Headwaters Windows, and Krestmark was required to

issue or otherwise disseminate a “press release, notice to any third party or other

publicity concerning the proposed transaction . . .” A week later, on August 1, 2016,

Robinson as the Krestmark Entities’ President and Owner, Headwaters Windows as

Purchaser, and Headwaters Incorporated as Purchaser’s Parent Corporation signed

an Asset Purchase Agreement (APA) and the deal closed thereafter.

II. The Employment Agreement

Robinson and Headwaters Windows entered an Employment Agreement on

August 19, 2016, under which Robinson accepted the position of President. The

Employment Agreement provided for a five-year term of employment, a $310,000

base salary, and short term and long-term incentive compensation plans. The

Employment Agreement included payment provisions in the event Robinson’s

employment was terminated. One of those provisions conditioned Robinson’s

entitlement to a cash severance and COBRA reimbursement on his execution and

delivery of an effective release within forty-five days of termination. The release

–4– was required to be “in substantially the form” of an unsigned release attached as an

exhibit to the Employment Agreement.

The Employment Agreement also included several “Employment and Post-

Termination Covenants,” such as non-solicitation and non-competition covenants,

which would remain in effect for three years following the termination of Robinson’s

employment with or service to Headwaters Windows. Regarding the non-

competition covenant, Robinson agreed to not work for a competitor during the

three-year, post-termination restricted period. As consideration for Robinson’s

agreement to the non-competition covenant, he was to be paid $50,000 annually in

addition to his salary and other compensation.

III. Boral Industries Acquires Headwaters Incorporated

Boral expressed interest in acquiring Headwaters Incorporated during a July

25, 2016 meeting between Mike Kane, Boral Limited’s5 Chief Executive Officer,

and Kirk Benson, Headwaters Incorporated’s Chief Executive Officer. Benson

testified he did not know the purpose of the meeting when he arrived. During the

meeting, Kane explained Boral was interested in acquiring Headwaters

Incorporated. Benson told Kane that Headwaters Incorporated was not for sale, and

any sales proposal should be submitted in writing. The counterclaims at issue on

appeal relate to events allegedly occurring at the July 25, 2016 meeting. Specifically,

5 Boral Industries, Inc. (Boral) is owned by Boral Limited, a public-traded Australian company. Boral is the U.S. arm of Boral Limited. –5– Robinson’s contention Benson breached the Confidentiality Agreement and the two

LOIs by disclosing information concerning the Krestmark acquisition and the

negotiations surrounding it to Kane. Benson maintained the only information he

provided to Boral “was the information that Krestmark gave us the permission to

include in the press release.” Headwaters Incorporated issued that press release and

publicly disclosed the Krestmark acquisition on August 2, 2016, a week after

Benson’s meeting with Kane.

On May 8, 2017, nine months after the Krestmark acquisition, Headwaters

Incorporated was acquired by and became a subsidiary to Boral. Headwaters

Windows continued to be directly and wholly owned by Headwaters Incorporated.

On September 1, 2017, Headwaters Windows changed its name to Boral Windows

LLC (Boral Windows).

IV. Termination of Robinson’s Employment

On May 16, 2017, following Boral’s acquisition of Headwaters Incorporated,

Boral informed Robinson by letter of changes to his employment status. Specifically,

as of May 22, 2017, Robinson would no longer serve in the position of President.

Instead, he would hold the position of Senior Advisor – Windows and would report

to Joel Charlton, Group President – Windows, Energy and Innovation. Then, on May

22, 2017, Charlton terminated Robinson’s employment effective immediately.

To receive cash severance and COBRA reimbursement, the Employment

Agreement required Robinson to execute a release and waiver within forty-five days

–6– of his termination. Robinson signed the Release and Waiver on June 29, 2017. In it,

Robinson released and waived the following:

. . . any and all actions, causes of action, suits, claims, obligations, liabilities, debts, demands, contentions, damages, punitive damages, compensatory damages, judgments, levies and executions of any kind whatsoever, whether in law or in equity, known or unknown, . . . from the beginning of time to the present, including for any and all acts or omissions occurring to date regardless of whether or not the cause of action arising therefrom has yet arisen or may arise in the future. This Release and Waiver specifically includes without limitation all matters arising out of, related to, in connection with, or resulting from, the Employment Agreement, Executive’s employment with the Company and the termination of Executive’s employment relationship. This Release and Waiver specifically includes without limitation any and all claims arising in tort (expressly including intentional torts) or contract or under any federal, state, county, municipal or other local statute, law or ordinance whatsoever.

(emphasis added). In addition, the Release and Waiver stated it “specifically

includes without limitation any and all claims based on” alleged employment

discrimination. The Release and Waiver also set out four exclusions:

This Release and Waiver excludes only (and such rights and obligations shall remain in effect in accordance with their terms): (i) any indemnification rights the Executive has with respect to a claim by any third party against the Executive in his official capacity with the Company; (ii) any severance payments owed by the Company to the Executive as expressly provided by the Employment Agreement; (iii) any vested, nonforfeitable benefits to which the Executive or a beneficiary of the Executive may be entitled under the terms and provisions of any employee benefit plan of the company which have accrued as of the separation date (including without limitation rights to COBRA continuation coverage) and (iv) all rights, claims, and causes of action pursuant to the Asset Purchase Agreement (including without limitation all rights with regard to the Indemnity Escrow Agreement as defined therein) and that certain Retention Bonus Agreement, dated August 1, 2016, . . .

–7– (emphasis added). Robinson received his contractually-mandated severance totaling

nearly $400,000.

V. The Underlying Lawsuit and Trial

Appellees contend they discovered Robinson was violating the non-compete

provision of the Employment Agreement about a year after his termination. The

underlying proceeding began when Boral Windows sued Robinson and asserted

claims alleging he violated the covenants not to compete of the Employment

Agreement. The jury found against Appellees on those claims. They are not at issue

in this appeal.

Robinson asserted counterclaims and third-party claims against Appellees. By

the time the case went to trial, four of Robinson’s counterclaims remained at issue.

First, Robinson contended Headwaters Incorporated and Headwaters Windows

breached the Confidentiality Agreement and the two LOIs by disclosing to Boral

information concerning the negotiations with and acquisition of the Krestmark

Entities. Next, he asserted a claim against Boral for tortious interference with

contracts. Robinson maintained Boral “maliciously, willfully, and intentionally

interfered” with the Confidentiality Agreement, the letters of intent, the APA, and

the Employment Agreement “by encouraging/facilitating Headwaters to reveal its

acquisition of Krestmark . . . .” Robinson further pleaded that Boral intended to

immediately terminate and replace Robinson after acquiring Headwaters

Incorporated. Finally, Robinson asserted a conspiracy claim against Appellees. He

–8– contended they conspired to have Headwaters Windows purchase Krestmark “at less

than fair market price, and to replace and terminate Robinson” following Boral’s

acquisition of Headwaters Incorporated.

After both sides rested and closed, Appellees moved for directed verdict on

Robinson’s remaining counterclaims. After lengthy arguments from counsel and an

extended discussion between the trial judge and counsel, the trial judge took the

motion for directed verdict under advisement and stated she would issue her ruling

that evening via e-mail. The record does not include an e-mail ruling. Rather, the

trial judge announced her ruling on the record the following morning, stating:

In addition, counsel, the Court needs to put on the record the Court’s ruling on the directed verdict presented by the Boral parties yesterday. There was a directed verdict presented relating to the counterclaims on a number of grounds, including but not limited to, the statute of limitations and waiver. And the Court grants that directed verdict on those counterclaims.

After closing arguments, the case was submitted to the jury. In a non-unanimous

verdict, the jury found in favor of Robinson on Appellees’ claims against him.

Following trial, Robinson filed a motion for reconsideration of the directed

verdict order and a motion for judgment on the verdict. The trial court denied the

motion for reconsideration by written order on September 2, 2022, and entered final

judgment on October 6, 2022. This appeal followed.

STANDARD OF REVIEW

We review a trial court’s decision to grant or deny a motion for a directed

verdict under the legal sufficiency standard of review. Mikob Props., Inc. v. Joachim, –9– 468 S.W.3d 587, 594 (Tex. App.—Dallas 2015, pet. denied). We consider all the

evidence in a light most favorable to the nonmovant, and we resolve all reasonable

inferences that arise from the evidence admitted at the trial in the nonmovant’s favor.

Cook v. Kovatch, No. 05-22-00347-CV, 2024 WL 301920, at *8 (Tex. App.—Dallas

Jan. 26, 2024, no pet.) (mem. op.) (citing Mikob Props., 468 S.W.3d at 594). In our

review, we determine whether there is any evidence of probative force to raise a fact

issue on the question presented. Byrd v. Delasancha, 195 S.W.3d 834, 836 (Tex.

App.—Dallas 2006, no pet.).

APPLICABLE LAW

A release is a contractual arrangement that operates as a complete bar to any

later action based upon matters covered in the release. McCullough v. Scarbrough,

Medlin & Assocs., Inc., 435 S.W.3d 871, 885 (Tex. App.—Dallas 2014, pet. denied);

Schomburg v. TRW Vehicle Safety Sys., Inc., 242 S.W.3d 911, 913 (Tex. App.—

Dallas 2008, pet. denied). A release is subject to the rules of contract construction,

including the rules related to ambiguity. Leighton v. Rebeles, 399 S.W.3d 721, 725

(Tex. App.—Dallas 2013, no pet.); D.R. Horton–Tex., Ltd. v. Savannah Props.

Assocs., L.P., 416 S.W.3d 217, 226 (Tex. App.—Fort Worth 2013, no pet.). In

construing a release, as with other contracts, our primary task is to determine the true

intentions of the parties as expressed in the writing itself. Italian Cowboy Partners,

Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011). We must

consider the entire writing in order to harmonize and give effect to the provisions of

–10– the contract so that none will be rendered meaningless. Id. Terms are given their

plain, ordinary, and generally accepted meaning unless the instrument shows the

parties used terms in a technical or different sense. ECF N. Ridge Assocs., L.P. v.

ORIX Cap. Mkts., L.L.C., 336 S.W.3d 400, 407 (Tex. App.—Dallas 2011, pet.

denied).

To release a claim effectively, the releasing instrument must “mention” the

claim to be released. Keck, Mahin & Cate v. Nat’l Union Fire Ins. Co. of Pittsburgh,

Pa., 20 S.W.3d 692, 697–98 (Tex. 2000) (discussing Victoria Bank & Trust Co. v.

Brady, 811 S.W.2d 931, 938 (Tex. 1991)); McCullough, 435 S.W.3d at 885. Claims

that are not clearly within the subject matter of the release are not discharged, even

if they exist when the release is executed. Henry v. Masson, 333 S.W.3d 825, 844

(Tex. App.—Houston [1st Dist.] 2010, no pet.) (first citing Brady, 811 S.W.2d at

938, and then citing Baty v. ProTech Ins. Agency, 63 S.W.3d 841, 848 (Tex. App.—

Houston [14th Dist.] 2001, pet. denied)). However, it is not necessary for the parties

to anticipate and explicitly identify every potential cause of action relating to the

subject matter of the release. Keck, Mahin & Cate, 20 S.W.3d at 698; McCullough,

435 S.W.3d at 885. Rather, “a valid release may encompass unknown claims and

damages that develop in the future.” Keck, Mahin, & Cate, 20 S.W.3d at 698; see

also McCullough, 435 S.W.3d at 885. Further, although the “mention” requirement

does not bar general, categorical releases, such releases are to be narrowly construed.

Brady, 811 S.W.2d at 938; McCullough, 435 S.W.3d at 885. We also construe

–11– releases in light of the facts and circumstances surrounding the execution of the

release. Naik v. Naik, 438 S.W.3d 166, 175 (Tex. App.—Dallas 2014, no pet.) (citing

Brady, 811 S.W.2d at 939).

ANALYSIS

In three issues, Robinson appeals the directed verdict dismissing his

counterclaims against Headwaters Incorporated and Headwaters Windows for

breach of the Confidentiality Agreement, the Original LOI, and the Second LOI, and

against Boral for tortious interference with contracts.6 Robinson argues the trial court

erred in granting the directed verdict because the counterclaims (1) were not barred

by the statute of limitations, (2) were not subject to the Release and Waiver, and (3)

were not barred by the APA’s “No Consequential Damages” provision.

In seeking a directed verdict on Robinson’s counterclaims based on the

Release and Waiver, Appellees argued the counterclaims were released and waived

under the Release and Waiver’s broad language releasing “any and all claims” and

were not subject to any of the four limited exclusions to the otherwise global release

and waiver. We agree, and because we conclude the counterclaims were subject to

the Release and Waiver, we begin and end our analysis with Robinson’s second

issue.

6 The trial court also granted Appellees’ motion for directed verdict on Robinson’s conspiracy counterclaim. Robinson does not appeal that ruling. –12– I. The Counterclaims were not Subject to Any of the Release and Waiver’s Four Exclusions

As discussed above, the Employment Agreement conditioned Robinson’s

entitlement to a cash severance and COBRA reimbursement on Robinson executing

and delivering “an effective release” within forty-five days of his termination. He

signed the Release and Waiver on June 29, 2017, following his termination. In

addition to waiving a variety of potential claims related to employment

discrimination, the Release and Waiver also released and waived the following:

. . . any and all actions, causes of action, suits, claims, obligations, liabilities, debts, demands, contentions, damages, punitive damages, compensatory damages, judgments, levies and executions of any kind whatsoever, whether in law or in equity, known or unknown, . . . from the beginning of time to the present, including for any and all acts or omissions occurring to date regardless of whether or not the cause of action arising therefrom has yet arisen or may arise in the future. This Release and Waiver specifically includes without limitation all matters arising out of, related to, in connection with, or resulting from, the Employment Agreement, Executive’s employment with the Company and the termination of Executive’s employment relationship. This Release and Waiver specifically includes without limitation any and all claims arising in tort (expressly including intentional torts) or contract or under any federal, state, county, municipal or other local statute, law or ordinance whatsoever.

(emphasis added). The Release and Waiver went on to state it “excludes only” the

following four categories of claims “(and such rights and obligations shall remain in

effect in accordance with their terms):”

(i) Indemnification rights with respect to a third-party claim against Robinson in his official capacity;

(ii) Severance payments owed to Robinson as expressly provided by the Employment Agreement; –13– (iii) Any vested, nonforfeitable benefits to which Robinson or his beneficiary may be entitled under the terms and provisions of any employee benefit plan, and

(iv) “[A]ll rights, claims, and causes of action pursuant to the Asset Purchase Agreement (including without limitation all rights with regard to the Indemnity Escrow Agreement as defined therein) and that certain Retention Bonus Agreement, dated August 1, 2016, by and among Krestmark Industries, L.P., a Texas limited partnership; Crest Vinyl Extrusions, LLC, a Texas limited liability company, Legacy Vinyl Windows, LP, a Texas limited partnership, Executive, and Company.”

It is undisputed the counterclaims did not fall under the first three exclusions.

Robinson invoked the fourth exclusion, arguing the counterclaims were “rights,

claims, and causes of action pursuant to the” APA. However, when faced with

Appellees’ contention that any claims brought pursuant to the APA were barred by

the APA’s “No Consequential Damages” provision,7 Robinson’s counsel changed

course and conceded the counterclaims were not brought pursuant to the APA

because they involved agreements that were separate from the APA. This was

consistent with Robinson’s trial testimony in which he stated the counterclaims were

not brought under the APA. This is also consistent with Texas law. See, e.g.,

Cornerstone Staffing Sols., Inc. v. Valtech Sols., Inc., No. 05-19-00093-CV, 2020

WL 6304993, at *4 (Tex. App.—Dallas Oct. 28, 2020, no pet.) (mem. op.)

(explaining “pursuant to” means “in compliance with,” “in accordance with,” “as

7 Section 11.8 of the APA provided “no party shall, in any event, be liable to any other Person for any consequential, incidental, indirect, special or punitive damages . . . relating to the breach or alleged breach hereof . . . .” –14– authorized by,” or “in carrying out.”) (first citing “Pursuant to, BLACK’S LAW

DICTIONARY (8th ed. 2004), and then citing Baty v. Bowen Miclette & Britt, Inc., 423

S.W.3d 427, 440 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (according to the

supreme court, “pursuant to” means “in carrying out”) (citing Syntax, Inc. v. Hall,

899 S.W.2d 189, 191–92 (Tex. 1995))). Because the counterclaims were not brought

“pursuant to” the APA, they were not subject to the fourth exclusion. Under this

record, we conclude as a matter of law that Robinson’s counterclaims were not

subject to any of the four exclusions found in the Release and Waiver.

But this does not end our inquiry. We must also determine whether the

counterclaims are subject to the Release and Waiver.

II. Scope of the Release and Waiver

Robinson’s arguments in opposition to applying the Release and Waiver to

his counterclaims comprise three categories. First, he contends the Release and

Waiver applied only to the Employment Agreement and, therefore, claims

concerning separate agreements such as the Confidentiality Agreement and the LOIs

were not subject to the Release and Waiver. Second, he argues the counterclaims

were not “mentioned” in the Release and Waiver and, therefore, are not clearly

within its subject matter. Third, Robinson maintains the Release and Waiver did not

apply to claims against Headwaters Incorporated and Boral because those entities

were not named in the Confidentiality Agreement or the Release and Waiver.

Appellees disagree and maintain the Release and Waiver’s plain language broadly

–15– waived and released any and all claims not specifically excluded. We agree with

Appellees and conclude Robinson’s counterclaims fell within the broad language of

the Release and Waiver.

A. The Release and Waiver is not limited to the Employment Agreement

In his opening brief, Robinson insists the Release and Waiver “only applied

to ‘matters arising out of, related to, in connection with, or resulting from, the

Employment Agreement,” and “only claims for breach of the Employment

Agreement” are barred by it. In support, Robinson cites to the following three

sentences in the Release and Waiver referencing the Employment Agreement and

the release of claims related to allegations of employment discrimination:

This Release and Waiver specifically includes without limitation all matters arising out of, related to, in connection with, or resulting from, the Employment Agreement, Executive’s employment with the Company and the termination of Executive’s employment relationship.

***

This Release and Waiver specifically includes without limitation any and all claims based on wrongful discharge, discrimination of any kind whatsoever (including without limitation based upon race, sex, age, religion, national origin, handicap, or disability), illegal, improper or otherwise prohibited employment practices, and for any employment compensation or benefits whatsoever. This Release and Waiver specifically includes, without limitation, any and all claims under the Age Discrimination in Employment Act, Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Employee Retirement Income Security Act, the Equal Pay Act, the Fair Labor Standards Act, the Family and Medical Leave Act, and any analogous Texas laws.

–16– (underlining added by Robinson). In his reply brief, Robinson also contends the

Release and Waiver “recites that it applied only to employment claims” by including

the following language after the four exclusions:

Nothing contained in this Release and Waiver limits Executive’s ability to file a charge or complaint with the Equal Employment Opportunity Commission, the National Labor Relations Board, the Securities and Exchange Commission or any other federal, state or local governmental agency or commission (“Governmental Agencies”).

Robinson’s arguments are misleading. The sentences referenced by Robinson

include no language restricting the scope of the Release and Waiver to only claims

arising from the Employment Agreement or claims alleging breaches of the

Employment Agreement. Moreover, Robinson fails to cite or otherwise

acknowledge the language immediately preceding the sentences he relies on, which

plainly state the Release and Waiver is not limited as Robinson suggests:

Executive . . . hereby irrevocably and unconditionally waives, releases, acquits, and forever discharges any and all actions, causes of action, suits, claims, obligations, liabilities, debts, demands, contentions, damages, punitive damages, compensatory damages, judgments, levies and executions of any kind whatsoever, whether in law or in equity, known or unknown, against the Company . . . from the beginning of time to the present, including for any and all acts or omissions occurring to date regardless of whether or not the cause of action arising therefrom has yet arisen or may arise in the future.

(emphasis added). The plain language of the Release and Waiver contradicts

Robinson’s interpretation of its scope. We conclude the plain language of the

Release and Waiver does not limit it to “matters arising out of, related to, in

connection with, or resulting from, the Employment Agreement.”

–17– Robinson also asserts “Boral admitted” in its pleadings that the Release and

Waiver applied only to the Employment Agreement. He provides multiple record

cites in support. But nothing cited by Robinson supports his contention that Boral

made any such admission.

The record citations consist of selected snippets of arguments and evidence

submitted in support of Appellees’ motions for summary judgment and their

response to Robinson’s summary judgment motion, one sentence from an affidavit

submitted with summary judgment briefing, and one piece of trial testimony.

Appellees did not reference the summary judgment briefing, summary judgment

evidence, or the cited trial testimony in support of their motion for directed verdict,

and Robinson did not reference it in opposition to the motion. The trial court,

therefore, was not asked to consider those pleadings and testimony when deciding

the motion for directed verdict. Further, in the motion for directed verdict, Appellees

argued the Release and Waiver was not limited to claims related to the Employment

Agreement. As such, the briefing excerpts and cited testimony provide no legal

support for Robinson’s allegation that Boral admitted the Release and Waiver was

limited in scope.

Moreover, none of the pleadings or testimony cited by Robinson addressed

either the scope of the Release and Waiver or affirmatively limited its scope. Rather,

the cited pleadings and testimony merely asserted facts and arguments concerning

specific aspects of the Release and Waiver and Appellees’ arguments. For example,

–18– the language cited from the summary judgment briefing consists of statements that

Robinson signed the Release and Waiver, declared he received all he was entitled to

under the Employment Agreement, released and waived any claims concerning the

Employment Agreement and his employment, and received a generous severance by

doing so. Robinson cites nothing resembling an admission that the Release and

Waiver is limited to the Employment Agreement and claims related to that

agreement.

The same is true for the testimony cited by Robinson. The following affidavit

testimony of Boral’s Vice President of Human Resources, Tommy Balas, was cited

as proof of an admission by Boral: “On or about June 29, 2017, Mr. Robinson

executed a release and waiver averring to the fact that he received what he was

entitled to under the Employment Agreement.” Although this statement references

one averment made by Robinson in the Release and Waiver, Balas did not state this

was the only averment made by Robinson as he suggests.

Similarly, Robinson’s reliance on Ernest McLean’s trial testimony is

unavailing. McLean is Boral’s former Vice President and Corporate Secretary. On

redirect examination, Appellees’ counsel posed the following question:

Let’s look at a few provisions of the employment agreement and what happened to this employment agreement after the parties signed Exhibit J45, that termination letter?

McLean responded:

This agreement would normally terminate, depending on the terms of the termination letter and the termination letter had as part of it a release –19– and waiver. And the release was where Mr. Robinson released any other claims that he would have basically anywhere connected with his employment. He would no longer have any rights under this employment agreement.

This does not constitute an admission by Boral “that the Release and Waiver applied

only to the Employment Agreement” as Robinson contends. McLean was not asked

if the Release and Waiver was limited to claims under the Employment Agreement,

and he did not say it was so limited. In fact, his testimony included his belief the

Release and Waiver released any claims related to Robinson’s employment in

general, not only claims related to the employment agreement. Robinson’s

arguments are without merit. We conclude the Release and Waiver was not limited

to claims arising out of the Employment Agreement or for breaches of that

agreement. See Kalyanaram v. Burck, 225 S.W.3d 291, 299–300 (Tex. App.—El

Paso 2006, no pet.) (holding agreement releasing “any and all claims . . . known or

unknown, suspected or unsuspected, fixed or contingent . . . including those raised

in the Lawsuits and/or during or out of the employment relationship . . .” released

claims “much further than just claims or causes of action arising out of the

employment relationship.”).

B. The Release and Waiver was broad enough for the counterclaims to be within its subject matter.

Robinson next argues the counterclaims were “not clearly within the subject

matter” of the Release and Waiver because the Confidentiality Agreement and the

LOIs were not mentioned in the Release and Waiver. Robinson relies on Victoria

–20– Bank & Trust Co. v. Brady, 811 S.W.2d 931 (Tex. 1991) to support his argument.

We conclude Brady is inapplicable because the release in Brady included limiting

language not present here.

In 1983, Marlyn Brady (Brady) formed a partnership with Fancher Cattle

Company, Inc. (Cattle Company) to buy and sell cattle. Brady, 811 S.W.2d at 933.

Bill Fancher owned Cattle Company. Id. Victoria Bank & Trust Company (the Bank)

agreed to supply the necessary funding for the venture but required the loan be

secured with Brady’s ranch as collateral. Id. Brady and Cattle Company executed a

promissory note to meet the Bank’s requirements (the Brady-Cattle Company Note).

Id. In 1984, the Bank agreed to renew and extend the Brady-Cattle Company Note

and increase the amount of the line of credit for Brady and Cattle Company. Id. In

July 1985, the renewal note was declared to be in default and the Bank posted

Brady’s ranch for foreclosure. Id. The Bank also pursued Cattle Company and

Fancher as guarantors. Id. Brady sued the Bank to stop the foreclosure and, at the

temporary injunction hearing, Brady, Fancher, Cattle Company, and the Bank

reached a settlement agreement (the Brady-Cattle Company Settlement Agreement).

Id. at 934. Under the Brady-Cattle Company Settlement Agreement, Fancher and the

Cattle Company released the Bank “from any and all claims and causes of

action . . . directly or indirectly attributable to the above described loan transaction.”

Id. at 934, 938. The “above described loan transaction” referred to the Brady-Cattle

Company Note:

–21– WHEREAS, Fancher Cattle Company, Inc. and Marlyn Brady executed a promissory note (revolving line of credit) dated June 20, 1984, in the maximum amount of Three Hundred Fifty Thousand and No/100 Dollars ($350,000.00), payable to the order of Victoria Bank & Trust Company....

Id. at 938-39.

In the proceeding at issue in Brady, the claims and causes of action asserted

by Fancher and Cattle Company did not relate to the Brady-Cattle Company Note.

Brady, 811 S.W.2d at 939. Rather, their claims arose directly out of the Bill

Richardson cattle transaction, which was a transaction separate from and unrelated

to the Brady-Cattle Company Note. Id. The Bank argued, however, that those claims

were nonetheless subject to the release in the Brady-Cattle Company Settlement

Agreement. Id. The Brady court disagreed, concluding the Bill Richardson cattle

transaction was “not mentioned or clearly within the subject matter of” the Brady-

Cattle Company settlement agreement because that agreement limited the release to

claims “directly or indirectly attributable to the above described loan transaction”

(i.e., to the Brady-Cattle Company Note). Id. Because the Bill Richardson cattle

transaction was not related to the Brady-Cattle Company Note, it was not related to

“the above described loan transaction” and, therefore, not released or waived. Id.

Here, the Release and Waiver includes no limiting language like the language

in the Brady-Cattle Company Settlement Agreement. On the contrary, it is a general

release with specific exclusions not applicable here. See RTKL Assocs., Inc. v.

Transcon. Realty Invs., Inc., No. 05-11-00786-CV, 2012 WL 6114887, at *4–5 (Tex.

–22– App.—Dallas Dec. 10, 2012, no pet.) (mem. op.) (concluding Brady inapplicable in

case involving general release). Moreover, since Brady, the Texas Supreme Court

has clarified the holding of Brady and fine-tuned the criteria for being “mentioned”

in and subject to a release. See Memorial Medical Center of East Texas v. Keszler,

943 S.W.2d 433 (Tex. 1997) (per curiam); see also Keck, Mahin & Cate, 20 S.W.3d

at 696. Robinson’s Release and Waiver is analogous to those post-Brady cases.

In Keszler, Memorial brought a “corrective action” against Keszler and

revoked his privileges after he was found guilty of tampering with government

records. 943 S.W.2d at 434. Keszler sued Memorial and the parties’ reached a

settlement. The Settlement Agreement included the following release:

KESZLER shall release and forever discharge MEMORIAL . . . from any and all claims, causes of action, demands, known or unknown, which KESZLER has or may have and which have not accrued, arising out of and in connection with the corrective action taken against KESZLER by MEMORIAL and any other actions KESZLER might have against MEMORIAL for any such action taken against KESZLER.

Id. The parties also executed a Release, which provided:

Keszler . . . does hereby RELEASE, ACQUIT and FOREVER DISCHARGE [Memorial] . . . from any and all claims, demands, actions, and causes of action of any kind whatsoever . . . which [Keszler] has or might have, known or unknown, now existing or that might arise hereafter or which have not yet accrued, directly or indirectly attributable to or in any way arising out of corrective action taken by [Memorial] against [Keszler] and any other matter relating to [Keszler’s] relationship with [Memorial], including but not limited to his relationship as a member of the staff or as a physician having clinical privileges, it being the intent of [Keszler] to release all claims of any kind or character which he might have against [Memorial] ....

–23– Id. (emphasis added). After the settlement, Keszler sued Memorial for damages for

injuries he suffered because of exposure to a toxic sterilizing agent Memorial used

during his employment. Id. The supreme court stated the release must “mention” the

claim, but it disagreed with the court of appeals’ holding the claim must be

specifically enumerated to be released. Id. at 435. The supreme court concluded the

claim was “mentioned” in the release because Keszler agreed to release all claims

relating to his relationship with Memorial, and his claim for toxic exposure during

his employment at Memorial was related to his relationship with Memorial. Id.

Similarly, in Keck, the Texas Supreme Court considered a release that applied

to “all demands, claims or causes of action” between the parties. 20 S.W.3d at 696.

There, the Texas Supreme Court considered whether an insured’s8 release of

attorney’s fees was limited to unpaid fees or applied to all malpractice claims

attributable to legal services rendered during a specified period. Id. at 697; see also

Garza v. Ford Motor Co., 423 S.W.3d 442, 449 (Tex. App.—San Antonio 2013, no

pet.) (discussing Keck). The dispute centered on the recitals and the following two

paragraphs in the release. Keck, 20 S.W.3d at 697. The recitals at the beginning of

the release stated KMC performed legal services for Granada for which Granada

owes KMC “a substantial sum for outstanding and unpaid invoices for professional

legal services rendered,” KMC and Granada “desire to resolve the issue of the

8 The insured, Granada Food Corporation (Granada) retained the law firm of Keck, Mahin & Cate (KMC) as its attorneys in the underlying dispute. Keck, 20 S.W.3d at 695. –24– Unpaid Fees to their mutual satisfaction,” and “in exchange for the mutual promises,

agreements and releases herein contained, KMC and Granada do hereby agree as

follows:[.]” Paragraphs 1 and 2 immediately follow and set out the consideration to

Granada and to KMC for the agreement.

In paragraph 1, KMC forgives Granada for all unpaid legal fees for services

rendered between June 1, 1988 and April 1, 1992:

1. KMC hereby releases, and by these presents does hereby release, acquit and forever discharge Granada, its agents, servants, employees, officers, directors, affiliates and all persons, natural or corporate, in privity with them or any of them from any demands, claims or causes of action of any kind which KMC had or might have, directly or indirectly attributable to the Unpaid Fees owed to KMC by Granada for professional legal services rendered between June 1, 1988 and April 1, 1992, it being intended to release Granada from any obligation to pay such Unpaid Fees.

Then in paragraph 2, Granada releases all claims it has, or may have, against KMC

in connection with KMC’s legal services to Granada during the same time period:

2. Granada hereby releases and by these presents does hereby release, acquit and forever discharge KMC, its agents, servants, employees, partners, affiliates and all persons, natural or corporate, in privity with it, from any and all demands, claims or causes of action of any kind whatsoever, statutory, at common law or otherwise, now existing or that might arise hereafter, directly or indirectly attributable to the rendition or [sic] professional legal services by KMC to Granada between June 1, 1988 and April 1 1992.

Relying on Brady, the court of appeals concluded the release did not release KMC

from the legal malpractice claims because the release was limited to claims for

unpaid fees. In so holding, the court of appeals construed the release narrowly and

–25– concluded the references to “Unpaid Fees” in the recitals and paragraph 1 were an

implied limitation on the claims mentioned and released in paragraph 2.

KMC challenged the court of appeals’ decision and argued paragraph 2 set

out KMC’s consideration and released any and all claims Granada may have against

KMC directly or indirectly attributable to the legal services provided by KMC. Id.

at 697. The Texas Supreme Court agreed with KMC and concluded Brady did not

control the construction of the release at issue:

The present release is clearly broader than the one in Brady. It is not expressly limited to a specific claim or transaction but rather purports to cover “all demands, claims or causes of action of any kind whatsoever.” Nothing in Brady forbids such a broad-form release. Brady simply holds that the release must “mention” the claim to be effective. It does not require that the parties anticipate and identify each potential cause of action relating to the release’s subject matter.

Id. at 698 (internal citations omitted). The court concluded the release was sufficient

to release all legal malpractice claims against KMC attributable to legal services

rendered to Granada “between June 1, 1988 and April 1, 1992.” Id. at 697. The Keck

court also rejected the court of appeals’ limitation of the release to issues related to

Unpaid Fees:

The court of appeals’ construction imposes a symmetry that is simply absent from the agreement's language. While the recitals in this release are concerned primarily with the issue of Granada's unpaid legal fees, they do not convey an intent to limit the consideration to KMC for the forgiveness of those fees. The recitals merely state the parties’ general desire “to resolve the issue of Unpaid Fees to their mutual satisfaction.” Paragraphs 1 and 2 then explain the parties’ mutual satisfaction—KMC forgives all unpaid legal bills; Granada releases all claims relating to KMC’s legal services rendered during a specific time period. Because the release forgives KMC for any legal malpractice it may have –26– committed during this period, the court of appeals erred in holding to the contrary.

Keck, 20 S.W.3d at 698.

The supreme court’s analysis in Keszler and Keck applies equally here. Like

the releases in those cases, the Release and Waiver is broadly written, not expressly

limited to a specific claim or transaction, excludes only specifically-enumerated

claim not at issue here, and affirmatively states Robinson released the following:

. . . any and all actions, causes of actions, suits, claims, . . . of any kind whatsoever, whether in law or in equity, known or unknown, against the Company . . . from the beginning of time to the present, including for any and all acts or omissions occurring to date regardless of whether or not the cause of action arising therefrom has yet arisen or may arise in the future.

And, like in Keszler, Robinson agreed to the broad release and specifically

acknowledged the scope of the document:

However, based on Executive’s release of claims set forth in this Release and Waiver, Executive understands that Executive is releasing all claims and causes of action that Executive might personally pursue or that might be pursued in Executive’s name and, to the extent permitted by applicable law, Executive’s right to recover monetary damages or obtain injunctive relief that is personal to Executive in connection with such claims and causes of action.

This agreement to the broad release and waiver language and the timing of

Robinson’s execution of the Release and Waiver (i.e., after his termination) further

confirm the broad scope of the Release and Waiver. See Keszler, 943 S.W.2d at 435

(concluding claim was mentioned in the release where Keszler agreed to release all

claims relating to his relationship with Memorial, and his claim for toxic exposure

–27– during his employment at Memorial was related to his relationship with Memorial).

In light of Keszler, Keck, and their progeny, the plain language of the Release and

Waiver can be interpreted only one way; to cover any and all claims against

Appellees not specifically excluded. See Keszler, 943 S.W.2d at 435; see also Keck,

20 S.W.3d at 698; Shanley v. First Horizon Home Loan Corp., No. 14-07-01023-

CV, 2009 WL 4573582, at *10–11 (Tex. App.—Houston [14th Dist.] Dec. 8, 2009,

no pet.) (similarly-worded release was “not expressly limited to a specific claim or

transaction . . . .”).

Although the Confidentiality Agreement and the LOIs were not mentioned in

the Release and Waiver, they were not specifically excluded from its scope. Had the

parties intended to exclude claims related to those agreements, they could have

specifically excluded them as they did claims related to the Indemnity Escrow

Agreement and the APA. The Indemnity Escrow Agreement was a component of

and attached to the APA, whereas the Confidentiality Agreement and the LOIs were

separate, distinct documents. By including the Indemnity Escrow Agreement in the

fourth exclusion but not including the Confidentiality Agreement and the LOIs, the

parties arguably intended only the APA and documents attached to the APA to be

excluded from the Release and Waiver. The Confidentiality Agreement and the LOIs

were freestanding documents and, thus, not excluded.

We conclude any and all claims brought by Robinson against Appellees,

except for the limited exclusions not applicable here, are necessarily encompassed

–28– in the Release and Waiver. Because the counterclaims squarely fit within the Release

and Waiver, we conclude the trial court correctly granted Appellees’ motion for

directed verdict. See, e.g., Transcor Astra Group S.A. v. Petrobras Am. Inc., 650

S.W.3d 462, 482 (Tex. 2022), cert. denied, 143 S. Ct. 2493, 216 L. Ed. 2d 454 (2023)

(holding settlement agreement that released “ ‘any and all claims . . . of whatever

kind or character, . . . whether known or unknown,’ including, ‘without limitation’ ”

specific claims is “the broadest type of general release” and released the claims at

issue because they “squarely fit within this release, . . .”); see also RTKL Assocs.,

2012 WL 6114887, at *4–5 (same with equally broad release to Keck and Keszler);

Garza v. Bunting, No. 05-06-01307-CV, 2007 WL 1545937, at *7 (Tex. App.—

Dallas May 30, 2007, no pet.) (same).

C. The Release and Waiver applies to claims brought against Headwaters Incorporated, Headwaters Windows, and Boral

Finally, we reject Robinson’s contention that the Release and Waiver cannot

apply to claims against Headwaters Incorporated “or any Boral entity” because

Headwaters Windows is the only party named in the Release and Waiver. This

argument is contrary to the facts and applicable law.

As a preliminary matter, it is undisputed Headwaters Windows remained the

same legal entity after it changed its name to Boral Windows LLC. Robinson

presented no evidence to the contrary. A corporate name change does not affect a

company’s identity, property rights, or liabilities. See, e.g., Ho Wah Genting Kintron

Sdn Bhd v. Leviton Mfg. Co., 163 S.W.3d 120, 129 (Tex. App.—San Antonio 2005, –29– no pet.) (there was “no evidence to controvert [the assertion] that HWG Kintron was

‘the same entity’ as Kintron Sdn Bhd because the company had merely undergone a

name change”); see also Northern Nat. Gas Co. v. Vanderburg, 785 S.W.2d 415,

421 (Tex. App.—Amarillo 1990, no writ) (same). The entities are the same for

liability purposes. See Ho Wah Genting Kintron Sdn Bhd, 163 S.W.3d at 129; see

also Drennan v. Community Health Inv. Corp., 905 S.W.2d 811, 818 (Tex. App.—

Amarillo 1995, writ denied).

Further, the Release and Waiver applied equally to Headwaters Incorporated

and Boral by specifically releasing not just Headwaters Windows but also “all

predecessors, successors, assigns, parents, affiliates, and subsidiaries” of

Headwaters Windows. Where, as here, a release identifies related entities, it is

sufficient to operate to their benefit even if they are not specifically named. See

Stafford v. Allstate Life Ins. Co., 175 S.W.3d 537, 543 (Tex. App.—Texarkana 2005,

no pet.) (“By its own language, the release signed by Stafford applies to any

‘subsidiaries, affiliates, partners, predecessors and successors in interest and assigns’

of Allstate Insurance Company.”); see also Quiroz v. Jumpstreet8, Inc., No. 05-17-

00948-CV, 2018 WL 3342695, at *3 (Tex. App.—Dallas July 9, 2018, pet. denied)

(mem. op.) (holding that a release was enforceable by Jumpstreet8, Inc., an affiliate

of Jumpstreet, LLC, because “[a]lthough the Release specifically named

‘Jumpstreet, LLC,’ it also stated the Release equally applied to ‘its parent,

subsidiaries, affiliates, other related entities, successors, owners, members, directors,

–30– officers, shareholders, agents, employees, servants, assigns, investors, legal

representatives and all individuals and entities involved in the operation of

Jumpstreet.’”); see also Atlantic Lloyds Ins. Co. v. Butler, 137 S.W.3d 199, 219 (Tex.

App.—Houston [1st Dist.] 2004, pet. denied) (holding that a release and waiver

listing “affiliated companies [and] parent companies” sufficiently identified the

parent so that the parent was also released).

Robinson relies on two cases to support his argument that the language in the

Release and Waiver is insufficient to encompass parties not specifically named in it.

See Finley Res., Inc. v. Headington Royalty, Inc., 672 S.W.3d 332 (Tex. 2023); see

also Banowsky v. State Farm Mut. Ins. Co., 876 S.W.2d 509 (Tex. App.—Amarillo

1994, no writ). Both cases are distinguishable. First, the Finley Resources was not

tasked with determining whether affiliated companies and parent companies were

sufficiently identified to also be released. Nor did the court hold that an entity must

be specifically named to be released. Rather, the issue in Finley Resources was

whether Finley Resources was released under an agreement that released

“predecessors” of a named party but did not name Finley Resources as a

“predecessor.” 672 S.W.3d at 338–42. The parties disputed whether the term

“predecessors” should be narrowly or broadly construed. Id. at 340–41. The court

concluded the scope of the term “predecessors” in the release was unambiguously

narrowed by the related acreage-swap agreement and did not include Finley

Resources. Id. at 345. In so holding, the court noted its conclusion “does not derive

–31– from any rule requiring releases to be construed ‘narrowly’ or from a want of

‘descriptive particularity.’ Instead, it follows from the plain meaning of the term as

constrained by the linguistic and grammatical context in which it is used.” Id.

Here, unlike in Finley Resources, the Release and Waiver expressly applied

to “all predecessors, successors, assigns, parents, affiliates, and subsidiaries” of

Headwaters Windows. It is undisputed Headwaters Windows continued to be

directly and wholly owned by Headwaters Incorporated. Robinson knew the

corporate relationship between the Headwaters Entities when Headwaters Windows

acquired Krestmark, during his employment at Headwaters Windows, at the time of

his termination, and when he signed the Release and Waiver. The Release and

Waiver is sufficiently descriptive so that even a stranger to the agreement can readily

understand and recognize that the release intended to include related entities such as

Headwaters Incorporated and Boral.

Banowsky is also distinguishable from this case. There, the court concluded a

release referencing “all other person, firms, or corporations liable, or who might be

claimed to be liable” was not sufficiently descriptive to release an unnamed or

unidentified tortfeasor. Banowsky, 876 S.W.2d at 513–14. The Release and Waiver

here do not suffer from the same infirmity. Under this record, we conclude the

Release and Waiver applied to the counterclaims asserted against each Appellee.

–32– CONCLUSION

For these reasons, we overrule Robinson’s second issue, conclude the

counterclaims were released or waived under the Release and Waiver signed by

Robinson in 2017, and affirm the order granting the directed verdict on that basis.

We need not address Robinson’s first and third appellate issues because the directed

verdict order may be affirmed on any valid ground. See TEX. R. APP. P. 47.1.

Accordingly, we affirm the trial court’s judgment.

/Robbie Partida-Kipness/ ROBBIE PARTIDA-KIPNESS JUSTICE 221184F.P05

–33– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

WILLIAM E. ROBINSON, JR., On Appeal from the 162nd Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. DC-18-16397. No. 05-22-01184-CV V. Opinion delivered by Justice Partida- Kipness. Justices Pedersen, III and BORAL WINDOWS LLC F/K/A Garcia participating. HEADWATERS WINDOWS, LLC, HEADWATERS WINDOWS, LLC N/K/A BORAL WINDOWS LLC, AND HEADWATERS INCORPORATED, Appellees

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellees BORAL WINDOWS LLC F/K/A HEADWATERS WINDOWS, LLC, HEADWATERS WINDOWS, LLC N/K/A BORAL WINDOWS LLC, AND HEADWATERS INCORPORATED recover their costs of this appeal from appellant WILLIAM E. ROBINSON, JR.

Judgment entered this 10th day of June 2024.

–34–