REVISED MARCH 8, 2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20155

ADDICKS SERVICES, INC.,

Plaintiff - Appellant

v.

GGP-BRIDGELAND, LP, formerly known as Rouse-Houston, LP;

BRIDGELAND GP, LLC; SAFECO INSURANCE COMPANY OF AMERICA,

Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

Before KING, GARZA, and HAYNES, Circuit Judges.

KING, Circuit Judge:

In this contract action, plaintiff–appellantis a contractor seeking damages

for extra work and delay costs incurred performing land improvement for a

residential development in Harris County, Texas. The district court granted

summary judgment to defendants–appellees, holding that plaintiff–appellant’s

claims were barred by waivers and releases it executed monthly to receive

progress payments. We affirm.

I. BACKGROUND

United States Court of Appeals

Fifth Circuit

F I L E D

February 8, 2010

Charles R. Fulbruge III

Clerk
No. 09-20155

1 Bridgeland GP, LLC, is the generalpartner ofGGP-Bridgeland,LP. GGP-Bridgeland,

LP, secured a Release of Lien Bond from Safeco Insurance Company of America, so that it

would be able to sell residential units within the Bridgeland development free and clear of any

liens. Unless otherwise specified, we refer to Appellees collectively as “Bridgeland.”

2 Those documents listed were:

a) This Agreement and Special Conditions of Agreement;

2

GGP-Bridgeland, LP (“Bridgeland”)1is the owner of Bridgeland, a

residential development in Harris County, Texas. Addicks Services, Inc.

(“Addicks”), submitted a bid to perform excavation and grading work on the

approximately 500-acre site. On July 20, 2004, Addicks and Bridgeland

executed a Standard Form of Agreement Between Owner and Contractor (the

“Contract”). Addicks’s role was to perform “cut and fill” services, which involve

excavating or “cutting” the land on the site to create lakes and other scenic

features. The excavated dirt or “spoil” produced from the excavation would then

be spread or “filled” across the development to create a uniform elevation.

Under the original terms of the Contract, Addicks was required to cut and fill

slightly more than 2 million cubic yards of dirt in 150 calendar days; it would

receive $4,582,721.79 for this service.

The parties contemplated that the Contract would consist of multiple

documents. The Contract defines “Work” as “the work described in the Drawings

and Specifications . . . and any requirements set forth in any other Contract

Documents enumerated in Article XIX.” (Contract ¶ 1.1.) Article XIX is labeled

“Integration Clause” and consists of two provisions. The first provides that the

Contract, together with its attached exhibits and documents incorporated by

reference, is the entire agreement and supersedes prior negotiations,

representations, and agreements. (Contract ¶ 19.1.) It further contained a nooral-modification clause stating thatthe Contract could be amended or modified

only in written change order forms signed by both Addicks and Bridgeland. (Id.)

The second provision enumerated the documents constituting the Contract.2
No. 09-20155

b) Exhibits to this Agreement;

c) Performance, Payment, and other Bonds identified;

d) Invitation to Bidders;

e) Instructions to Bidders;

f) Notice to Proceed;

g) Standard and Special Specifications;

h) Construction Drawings;

i) Storm Water Pollution Prevention Plan[;]

j) Addenda;

k) All Change Orders and written modifications that amend or supplement the

Contract Documents pursuant to the Contract Documents;

l) All documents incorporated by reference into the Contract Documents.

(Contract ¶ 19.2.)

3

(Contract ¶ 19.2.)

Two articles in the Contract dealt specifically with changes and

modifications to the work Addicks was to perform under the Contract. Addicks

was required to notify Bridgeland of any “claim[] for additional compensation,

extra work, delay, extensions oftime, or loss, injury or damages” within ten days

of its occurrence. (Contract ¶ 10.1.) Addicks was then required to submit a

detailed claim within thirty days and to submit a change order proposal on

request of Bridgeland. (Contract ¶ 10.2.) Addicks agreed to perform changes

and modifications to the scope of work under the Contract that were requested

by Bridgeland in writing; payment for such changes was governed by the

Contract’s schedule or by the cost plus a 5% markup. (Contract ¶ 12.1.) If the

parties disagreed over a particular change, Addicks was required to proceed with

the modification and prepare a change order proposal, which was “subject to full

audit, review and approval by [Bridgeland].” (Id.)

Article VIII of the Contract governed payment to Addicks. The Contract

specified that Addicks would perform the requested work for $4,582,721.79

(Contract ¶ 8.1), but it also provided for monthly progress payments (Contract

¶ 8.2). To receive a progress payment, the Contract contemplated that Addicks

would submit a written application detailing the work performed to date; the

application would be accompanied by an executed lien waiver that would release
No. 09-20155

3 Addicks argues that it is unclear whether the word “work” in the Interim Waiver form

refers to the term “Work” defined by paragraph 1.1 of the Contract. We address this

contention below.

4

Addicks’s mechanic’s and materialman’s lien on the project. (Id.) Blank lien

waiver forms were attached to the Contract. The relevant form was entitled

“Waiver and Release of Lien upon Progress Payment” (the “Interim Waiver”),

and provides, in relevant part:

[Addicks], in consideration of the sum of $__________, hereby

waives and releases its lien and right to claim a lien for labor,

services, or materials furnished through __________ (date of this

waiver) under contract with __________ on the job of __________

(Owner) to the following property: __________ (Name and Address

of Project). This waiver and release does not cover any retention or

labor, services or materials furnished after the date specified.

Any and all . . . subcontractors . . . have been paid and

satisfied in full, and there are no outstanding claims of any

character arising out of, or related to, the undersigned’s activities

on, or improvements to, the Project.

This Waiver constitutes a representation by [Addicks] that the

payment referenced above, once received, constitutes full and

complete payment for all work[3] performed, and all costs or

expenses incurred (including, but not limited to, costs for

supervision, field office overhead, home office overhead, interest on

capital, profit, and general conditions costs) relative to the work or

improvements at the Project as of the date of this Waiver, except for

the payment of retainage. [Addicks] specifically waives, quitclaims

and releases any claim for damages due to delay, hindrance,

interference, acceleration, inefficiencies or extra work, or any other

claim of any kind it may have . . . as of the date of this Waiver,

except as follows: _________________________________.

This Waiver is specifically made for the benefit of

[Bridgeland]. The amount of money set forth as due and owing in

the immediately preceding Waiver dated _____, 20__, has been

received, and is deemed paid in full.
No. 09-20155

4 A second form, entitled “Waiver and Release of Lien upon Final Payment” (the “Final

Waiver”) has not been executed by Addicks.

5 The record is deficient with regard to the change orders, as we could locate only six in

scattered locations. These are change orders 5, 8, and 11–14. Change order 8 was executed

three weeks prior to change order 5, and change orders 11–13 were all executed on the same

day.

6 Addicks’s payment applications reflect that sixteen change orders were executed prior

to November 25, 2006. The parties executed a partial settlement in June 2006 that involved

a seventeenth change order. That settlement does not affect our decision, and we therefore do

not consider it.

5

(Contract Ex. E.)4

Addicks received notice to proceed with the project in August 2004.

Addicks claims that, subsequent to commencing work, a number of factors

hindered its timely performance, including Bridgeland’s requests for additional

work, inclement weather, and site accessibility problems. Pursuant to the

mechanisms in the Contract, Addicks made numerous requests for information

regarding work, for extension of time, and for change orders to reflect the

additional work performed and to adjust the price of the Contract accordingly.

In some of the change order requests, Addicks included the following language:

“This modification constitutes compensation in full on behalf of [Addicks] for

direct costs only which are attributable to the changes ordered herein. [Addicks]

[r]eserves all rights to time extension, time related costs and any indirect cost[s]

that result or flow from the changes ordered herein.” Addicks’s records reflect

that during the relevant time frame, Bridgeland approved an extension of twelve

calendar days and sixteen change orders5that increased the price of the

Contract by $1,528,052.82 to a total of $6,110,774.61.6 The project was certified

complete on November 25, 2005, approximately eleven months behind schedule.

Addicks claims that many of the claims it submitted to Bridgeland for approval

were paid in part or not at all.

While the project was ongoing and many of these requests for change
No. 09-20155

7 The May 2005 Interim Waiver was executed on the thirty-first of that month.

8 An additional Interim Waiver, absent from the record, was apparently executed in

October 2005, but Bridgeland could notlocate it during this litigation. The accounts receivable

printout Addicks submitted reflects that Bridgeland paid the full amount of $256,907.05 that

Addicks requested in the corresponding payment application.

9 There were six occasions when the amounts did not precisely align. On three

occasions, the amount Addicks requested and the amount recited paid by the Interim Waiver

differed by no more than $1.00 (November 2004, April 2005, and September 2005). For June

2005, Addicks requested payment of $271,291.72, the June 2005 Interim Waiver recited

payment of $287,932.35, and Addicks reported $275,198.31 received. For August 2005,

Addicks’s accounts receivable printout reflects that it initially requested $287,845.80, which

is identical to the amount recited paid by the August 2005 Interim Waiver. However, the

corresponding payment application, printed on September 29, 2005, requests only $126,285.50,

which is the amount Addicks reported receiving from Bridgeland on October 20, 2005. The

discrepancies in both June and August 2005 appear to have been addressed in a downward

adjustment of $179,204.32 that Addicks made on September 25, 2005, corresponding with its

September 2005 payment application. For November 2005, Addicks requested $60,729.83,

which it reported receiving, while the November 2005 Interim Waiver recites payment of

$59,749.00.

6

orders were pending, Addicks submitted applications for progress payments and

executed Interim Waivers. Addicks asserts that Bridgeland would not permit

it to include claims for work on these payment applications unless the work had

been reduced to a change order. Each of the fifteen Interim Waivers that

appears in the record was executed on the twenty-fifth day of the month, with

only one exception,7from August 2004 through November 2005.8 Each Interim

Waiver corresponds to a payment application submitted by Addicks, and the

amount requested in each payment application is typically identical to the

amount cited in the corresponding Interim Waiver.9 Despite the presence of a

blank space for exceptions to Addicks’s assertion that it “specifically waive[d],

quitclaim[ed], and release[d] . . . any and all claims,” Addicks did not list any

claims—for extra work, delay damages, or otherwise—in any of the fifteen

Interim Waivers it executed.

After the project was certified complete on November 25, 2005, Addicks

and Bridgeland continued to dispute whether further payment was due. In
No. 09-20155

10 Addicks arrives at this value by adding $552,600 for “added scope of work”;

$1,970,352 for “cost of loss of productivity”; $142,788 for “cost of escalated fuel prices”; and

$21,756 for “general conditions”; and subtracting $526,539 as “amount previously paid for

additional haul distance.” (Pl.’s Second Am. Compl. ¶ 11.) These damages are further broken

out into specific claims for work performed or damages incurred in a Joint Report on Disputed

Additional Work Items prepared jointly by Addicks and Bridgeland.

11 Safeco also filed an answer in November 2006.

12 Initially, Bridgeland also alleged fraud, but it has since dismissed that claim.

7

February 2006, Addicks filed a mechanic’s and materialman’s lien against the

Bridgeland property in the amount of $2,257,394.97. The parties reached a

partial settlementthrough negotiations in June 2006. In October 2006, Addicks

filed a petition in state court, claiming over $3 million in damages; it has since

reduced its request for relief to $2,160,957.00.10 Addicks claimed entitlement to

these damages under theories of breach of contract, quantum meruit, and

promissory estoppel. Bridgeland answered on October 30, 2006,11 and removed

the case, based on diversity jurisdiction, to federal district court on November

3, 2006. Bridgeland later filed a counterclaim against Addicks for breach of

contract and promissory estoppel.12 Pursuant to 28 U.S.C. § 636(c), the parties

consented to have all proceedings, including trial and judgment, proceed before

a magistrate judge.

After discovery had been completed, Bridgeland moved for partial

summary judgment on Addicks’s claims for work performed prior to November

25, 2005—the date Addicks last executed an Interim Waiver. In response to

Bridgeland’s argumentthat Addicks had waived and released its claims for extra

work and other costs prior to that date, Addicks asserted four defenses against

applying the Interim Waivers to bar its claims: (1) ambiguity; (2) waiver; (3)

estoppel; and (4) mutual mistake. After a hearing, the district court granted

Bridgeland’s motion, holding that “Addicks’s claims for damages incurred prior

to November 25, 2005 [we]re barred by release.” Addicks Servs., Inc. v. GGP-
No. 09-20155

8

Bridgeland, L.P., No. H-06-3478, 2008 WL 4747343, at *6 (S.D. Tex. Oct. 27,

2008). On agreed motion by the parties, Addicks’s claims for work postNovember 25, 2005, were severed into a new action, and the district court

entered a final judgment dismissing all of Addicks’s claims with prejudice. 

Addicks timely appealed.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291 because the district court

rendered a final judgment disposing of all the issues in the action. The district

court had original diversity jurisdiction over this removed action under 28 U.S.C.

§ 1332(a). We apply Texas substantive law and federal procedural law to this

diversity action. See Foradori v. Harris, 523 F.3d 477, 486 (5th Cir. 2008).

We review a grant of summary judgment de novo, applying the same

standard as the district court. First Am. Bank v. First Am. Transp. Title Ins.

Co., 585 F.3d 833, 836–37 (5th Cir. 2009). In reviewing a grant of summary

judgment, we examine the evidence in the light mostfavorable to the nonmoving

party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986). The movant bears the burden of demonstrating that summary judgment

is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary

judgmentis appropriate “ifthe pleadings,the discovery and disclosure materials

on file, and any affidavits show that there is no genuine issue as to any material

fact and that the movant is entitled to judgment as a matter of law.” FED. R.

CIV. P. 56(c). A genuine issue of material fact exists when a jury could properly

enter a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). Where the movant bears the burden of proof on an

affirmative defense such as release, the movant “‘must establish beyond

peradventure all of the essential elements of the defense to warrant judgment

in his favor.’” Chaplin v. NationsCredit Corp., 307 F.3d 368, 372 (5th Cir. 2002)

(ellipsis omitted) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.
No. 09-20155

13 The district court rejected Addicks’s claim that the parties were operating under a

mutual mistake; Addicks does not press that argument on appeal.

9

1986)).

III. DISCUSSION

Addicks argues on appealthatthe Interim Waivers should not be enforced

to bar its claims for extra work performed and damages incurred prior to

November 25, 2005. It asserts that summary judgment was inappropriate

because genuine issues of material fact existin support ofthree distincttheories:

(1) ambiguity; (2) waiver; and (3) estoppel.13

A. Ambiguity

Addicks contends first that the Interim Waivers do not, by their terms,

apply to the present claims for extra work. Addicks argues alternatively that to

the extentthe Interim Waivers do apply to bar such claims, they are ambiguous,

and the parties’ course of performance—that Bridgeland would not allow it to

include claims for extra work on its payment applications—presents a fact issue

defeating summary judgment. We conclude that the Interim Waivers extend

unambiguously to release Addicks’s claims for extra work and, accordingly, the

course of performance evidence may not be used to reinterpret the language of

release.

In Texas, whether a contract is ambiguous is a question of law. J.M.

Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003) (citing Coker v. Coker,

650 S.W.2d 391, 394 (Tex. 1983)). “A contract is unambiguous if it can be given

a definite or certain legal meaning. On the other hand, if the contract is subject

to two or more reasonable interpretations . . .the contractis ambiguous, creating

a fact issue on the parties’ intent.” Id. (citation omitted). “When parties

disagree over the meaning of an unambiguous contract, ‘[t]he intent of the

parties must be taken from the agreement itself, not from the parties’ present

interpretation, and the agreement must be enforced as it is written.’” Texas v.
No. 09-20155

10

Am. Tobacco Co., 463 F.3d 399, 407 (5th Cir. 2006) (modification in original)

(quoting Purvis Oil Corp. v. Hillin, 890 S.W.2d 931, 935 (Tex. App.—El Paso

1994, no writ)). “The language in an agreement is to be given its plain

grammatical meaning unless to do so would defeat the parties’ intent.” DeWitt

County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 101 (Tex. 1999). “Courts

interpreting unambiguous contracts are confined to the four corners of the

document, and cannot look to extrinsic evidence to create an ambiguity.” Am.

Tobacco Co., 463 F.3d at 407 (citing Sun Oil Co. v. Madeley, 626 S.W.2d 726,

732–33 (Tex. 1982); Gen. Accident Ins. Co. v. Unity/Waterford–Fair Oaks, Ltd.,

288 F.3d 651, 657 (5th Cir. 2002)). Parol evidence—such as the parties’ course

of performance—may be used to ascertain the intent of the parties only if the

contract is first found to be ambiguous. Id.

1. Language of the Interim Waivers

We first address the argumentthatlanguage in the Interim Waivers itself

gives rise to a reasonable interpretation that the Interim Waivers were not

intended to release claims for extra work. Addicks cites four particular

instances to supportthis interpretation:(1)the title “Waiver and Release of Lien

Upon Progress Payment”; (2) the recitation that the release is “in consideration

of” a sum certain; (3) the representation “that the payment referenced above,

once received, constitutes full and complete payment for all work performed”;

and (4) the statement that “[t]he amount of money set forth as due and owing in

the [Interim Waiver] has been received and is deemed paid in full.” Addicks

insists that these excerpts evidence a mutual understanding that it released its

lien and claims only to the extent of the amount specified in each Interim

Waiver.

The release contemplated by the Interim Waivers is comprehensive and

not susceptible to the limited interpretation urged by Addicks. With each

Interim Waiver executed, Addicks “waive[d] and release[d] its lien and right to
No. 09-20155

11

claim a lien for labor, services, or materials furnished through [the date of the

Interim Waiver].” Each Interim Waiver specifically excluded retention and

labor, services, and materials furnished after the date of execution. Each

Interim Waiver further provided that “the payment . . . , once received,

constitute[d] full and complete payment for all work performed, and all costs or

expenses incurred . . . except for the payment of retainage.” Addicks further

“specifically waive[d], quitclaim[ed] and release[d] any claim for damages due

to delay, hindrance, interference, acceleration, inefficiencies or extra work, or any

other claim of any kind it may have against [Bridgeland] . . . .” (emphasis

added). Although each Interim Waiver contained a blank space in which

Addicks could have excepted outstanding claims from the scope of the release,

Addicks never excepted any claims. At the bottom of each Interim Waiver,

Addicks attested that payment had been received and was deemed paid in full

as of the date of the Interim Waiver. The executed Interim Waivers thus

operated to release all of Addicks’s outstanding claims except for retainage

payments, with the progress payment serving as the consideration for the overall

release.

The words and phrases that Addicks excerpts from the Interim Waivers

do not yield a reasonable alternative interpretation. The word “upon” in the title

of the Interim Waivers simply refers to the timing of the release—upon receipt

of a progress payment, Addicks released all of its outstanding claims. Texas

courts regularly treat such language as referring to the timing of a release. See,

e.g., K.D.F. v. Rex, 878 S.W.2d 589, 591 (Tex. 1994) (using the words “release

upon” to discuss the condition that would effectuate the release); In re Bath

Junkie Franchise, Inc., 246 S.W.3d 356, 365 (Tex. App.—Beaumont 2008, no

pet.) (“[T]he parties intended to create a release upon each party’s performance

. . . .”(emphasis added)). Similarly, the fact that the Interim Waivers recited the

consideration offered for the release, stated that the release became effective
No. 09-20155

14 As discussed above, “Work” is defined by the Contract as “the work described in the

Drawings and Specifications . . . and any requirements set forth in any other Contract

Documents enumerated in [the Integration Clause],” including executed change orders.

12

upon receipt ofthat consideration, and deemed the consideration received on the

date of execution merely clarifies details of contractual formality—namely, what

is being given in return for the release, and when does the release become

operative? This language does not weigh against the conclusion that the Interim

Waivers expressly released any and all claims up to the date of execution, with

Addicks failing to except any of its outstanding claims.

Addicks also argues thatthe language in the Interim Waivers stating that

the progress payment “constitutes full and complete payment for all work

performed” necessarily releases only its claims to “Work,”14 as defined by the

Contract. Because the defined term “Work” refers only to work specified in the

Contract and in change orders, Addicks maintains, the Interim Waivers may

reasonably be read not to release Addicks’s claims for extra work. We need not

and do not decide whether the lowercase “work” in the Interim Waivers is

synonymous with the uppercase “Work” defined elsewhere in the Contract

because the quoted language does not constitute the sole release language in the

Interim Waivers. Shortly following the quoted language, Addicks further agreed

thatit“specifically waive[d], quitclaim[ed] and release[d] any claim for damages

due to delay, hindrance, interference, acceleration, inefficiencies or extra work,

or any other claim of any kind it may have.” Whether “work” refers only to

“Work” is irrelevant in light of the specific references to “extra work” and “any

other claim of any kind”—the latter language clearly and unambiguously

describes the broad scope ofthe claims Addicks released. Cf. J.M. Davidson, 128

S.W.3d at 229 (“[W]e must examine and consider the entire writing in an effort

to harmonize and give effect to all the provisions ofthe contract so that none will

be rendered meaningless. . . . [A]ll the provisions must be considered with
No. 09-20155

15 This excludes the change order executed pursuant to the parties’ partial settlement,

which does not bear on Addicks’s present claims for extra work performed before the November

2005 Interim Waiver but not reduced to a change order.

13

reference to the whole instrument.”).

The language ofthe Interim Waivers also renders this case distinguishable

from Green International, Inc. v. Solis, 951 S.W.2d 384 (Tex. 1997), and Gilbane

Building Co. v. Two Turners Electric Co., No. 14-05-00908-CV, 2007 WL 582252

(Tex. App.—Houston [14th Dist.] Feb. 27, 2007, pet. denied) (mem. op.). In

Green International, a dispute arose between a contractor, Green International,

and a subcontractor, Solis, over work performed on three prison construction

projects. 951 S.W.2d at 386. An issue in the case was whether periodic waiver

of lien releases barred Solis’s claims for extra work performed. Id. at 388. The

releases in Green International provided that Solis agreed to “release [Green

International] from all claims arising out of or by reason of work performed and

materials furnished under said subject Subcontract and under the Contractor’s

prime contract with the Owner.” Id. at 388–89. The Texas Supreme Court

considered whether that “global language . . . terminated Solis’ recovery for his

extra work,” and held that it did not. Id. at 389. This conclusion led from the

fact that Green International had “approved change orders for the extra work

. . . several months after Solis had signed the last waiver of lien release.” Id.

(emphasis added). The court reasoned that because “[t]he waivers of liens were

executed months before these written modifications were made, . . . the releases

cannot apply to these subsequent revisions.” Id. Dissimilar facts are before us

in this case. First, the language of the Interim Waivers is specific with regard

to excluding claims for extra work. Second, all claims for extra work at issue in

this case arose before the November 2005 Interim Waiver, and those claims were

never converted into “Work,” as defined by the Contract, through the execution

of later change orders.15 The logic militating against a finding of release in
No. 09-20155

16 Some commentators have suggested that the releases in Green International did not

bar the subcontractor’s claims for extra work partly because “the releases were not fully

operative untilthe ten percent retainage had been paid, i.e., the lien releases were in exchange

for one hundred percent payment, not ninety percent . . . .” Robert L. Meyers, III & Michael

F. Albers, Construction Law, 51 S.M.U. L. REV. 805, 808 (1998). Even accepting this reading

of Green International,the effectiveness ofthe Interim Waivers here is not undermined: unlike

the waivers in Green International, the Interim Waivers specifically excluded from their

coverage “the payment of retainage.”

14

Green International thus counsels in favor of finding release here.16

Gilbane Building involved a dispute between an electrical subcontractor

and a prime contractor on two school construction projects. 2007 WL 582252, at

*5. Among the damages awarded by the jury were claims to payment for work

performed prior to the execution—on each project—of a partial release and

waiver of lien. Id. at *10. The releases there recited that “[s]ubcontractor

hereby waives, relinquishes and releases its lien, claims and charges of every

nature which have arisen by [s]ubcontractor . . . to the extent such monies have

been paid . . . [.]” Id. The court found that the limiting language “to the extent

such monies have been paid” made it “plain [that] the Releases exclude[d] any

sums that were still owed” as of the date the releases were executed. Id. Here,

in contrast, there is no such limitation—the Interim Waivers, by their terms,

released all outstanding claims. Addicks could have limited the reach of this

release by listing its outstanding claims in the blank space provided for

exceptions from the release. In requesting us to find ambiguity in the Interim

Waivers, Addicks asks us to turn back the clock and insert exceptions where it

failed to do so; however, Texas law forbids us from granting that request. See

Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 646 (Tex. 1996) (“We have

long held that courts will not rewrite agreements to insert provisions parties

could have included or to imply restraints for which they have not bargained.”);

Stafford v. Allstate Life Ins. Co., 175 S.W.3d 537, 541 (Tex. App.—Texarkana

2005, no pet.) (“Like any other agreement, a release is subject to . . . the tenet
No. 09-20155

15

that courts will not rewrite agreements to insert provisions parties could have

included or to imply restraints for which they have not bargained.”).

2. Texas Property Code § 53.152

Addicks urges that the Texas Property Code compels the conclusion that

the Interim Waivers were not intended to extend to claims for extra work.

Section 53.152 of the Texas Property Code provides:

(a) When a debt for labor or materials is satisfied or paid by

collected funds, the person who furnished the labor or materials

shall, not later than the 10th day after the date of receipt of a

written request, furnish to the requesting person a release of the

indebtedness and any lien claimed,to the extent ofthe indebtedness

paid. An owner, the original contractor, or any person making the

payment may request the release.

(b) A release of lien must be in a form that would permit it to be

filed of record.

TEX. PROP. CODE ANN. § 53.152 (Vernon 2007). According to Addicks, the

language “to the extent of indebtedness paid” requires that we interpret the

Interim Waivers to release Addicks’s claims only to the dollar amountlisted. We

disagree.

Section 53.152 delineates the minimal obligation of a contractor to release

a lien upon receiving payment, but nothing in the statute suggests that broader

releases may not be executed. One commentator describes the judicial response

to this practice in the construction industry as follows: “[O]wners includ[e]

releases of liens and claims in monthly payment application forms they require

contractors to sign and submit. Such forms typically contain language under

which contractors release owners from all rights to lien and claims ‘to date.’

These lien waivers and releases, when clear and unambiguous, are routinely

enforced.” PHILIP L. BRUNER & PATRICK J. O’CONNOR, JR., CONSTRUCTION LAW

§ 4:48 (2009); see also 53 AM. JUR. Trials § 367 (1995) (“The signed waiver of lien

can be relied upon by the owner to extinguish a construction lien through the
No. 09-20155

16

date of the waiver.”). Texas courts have upheld full releases of claims where, as

here, they are supported by consideration. See Dresser Indus., Inc. v. Page

Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993) (“[A] release . . . is an absolute

bar to any right of action on the released matter.” (citing Hart v. Traders & Gen.

Ins. Co., 189 S.W.2d 493, 494 (Tex. 1945))); Schomburg v. TRW Vehicle Safety

Sys., Inc., 242 S.W.3d 911, 915 (Tex. App.—Dallas 2008, pet. denied); Stolz v.

Honeycutt, 42 S.W.3d 305, 313 (Tex. App.—Houston [14th Dist.] 2001, no pet.).

Addicks has not persuaded us to read this statute, which enables owners to

disencumber their projects and more easily obtain financing, as one that clouds

title and increases the likelihood of litigation by turning clear releases into

ambiguous instruments. We therefore decline to do so.

3. Lack of a Final Waiver

Lastly, Addicks cites the fact that no Final Waiver was executed and

argues that claims for extra work could not have been resolved through the

Interim Waivers. However, this fact does not undermine the unambiguous

language in the Interim Waivers. The differences between the Interim Waivers

and theFinal Waiver revealtheir different purposes. The Interim Waivers serve

to release Addicks’s lien and claims up through the date of execution, while the

Final Waiver is not limited to a particular date. In addition, the Final Waiver

does not contain a blank space in which to except claims from release, and it

does not exclude the payment of retainage from its scope. The net effect of these

distinctions is that the Interim Waivers settle claims up to the date of execution,

but they contemplate the performance of further services for which Addicks

could claim a lien and be entitled to compensation. The Final Waiver, in

contrast, does not contemplate further services—itis, after all,final. Its purpose

is to settle fully and finally any potential liens or claims outstanding when the

parties agree that the project has been completed and all debts have been paid.

Its absence merely reveals that a dispute arose over services performed after the
No. 09-20155

17

execution of the November 2005 Interim Waiver—a dispute not at issue in this

appeal. The lack of a Final Waiver does not upset the effect of that Interim

Waiver, which released claims arising up to the date of its execution.

4. Conclusion

The language of the Interim Waivers is unambiguous in releasing the

claims that Addicks now pursues. That clarity prevents us from using evidence

of the parties’ course of performance to alter the terms of those Interim Waivers,

and, consequently, there are no issues of material fact that would support

reversal under this theory.

B. Waiver

Addicks next asserts that genuine issues of material fact exist regarding

whether Bridgeland’s conduct waived its right to rely on the language of the

Interim Waivers against Addicks’s claims. 

In Texas, waiver is the “intentional relinquishment of a known right or

intentional conduct inconsistent with claiming that right.” Sun Exploration &

Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex. 1987). “[A]n obligee may waive the

obligor’s requirement for strict compliance with the terms of a contract if the

obligee expressly or impliedly assents to the obligor’s nonconforming conduct.”

Fairfield Fin. Group, Inc. v. Gawerc, 814 S.W.2d 204, 209 (Tex. App.—Houston

[1st Dist.] 1991, no writ); accord Bott v. J.F. Shea Co., 388 F.3d 530, 534 (5th

Cir. 2004). “Waiver is largely a matter of intent, and for implied waiver to be

found through a party’s actions, intent must be clearly demonstrated by the

surrounding facts and circumstances.” Jernigan v.Langley, 111 S.W.3d 153, 156

(Tex. 2003) (per curiam); accord Van Indep. Sch. Dist. v. McCarty, 165 S.W.3d

351, 353 (Tex. 2005) (“While waiver may sometimes be established by conduct,

that conduct must be unequivocally inconsistent with claiming a known right.”).

“Silence or inaction, for so long a period as to show an intention to yield the

known right, is also enough to prove waiver.” Tenneco, 925 S.W.2d at 643.
No. 09-20155

18

“Waiver is ordinarily a question of fact, but when the surrounding facts and

circumstances are undisputed, . . . the question becomes one of law.” Jernigan,

111 S.W.3d at 156–57; accord First Interstate Bank of Ariz., N.A. v. Interfund

Corp., 924 F.2d 588, 595 (5th Cir. 1991) (“[T]he issue of waiver becomes a matter

of law only where material facts and circumstances are undisputed or clearly

established and there is no room for argument or inference.”).

According to Addicks, it performed extra work—work requested by

Bridgeland but not listed in the original specifications and not yet reduced to a

change order—on thirty-four occasions. Addicks then requested that Bridgeland

issue change orders and pay for the extra work. The process of negotiation over

those instances of extra work led to Bridgeland issuing some change orders and

paying Addicks for those thirty-four claims, even though,for each claim, Addicks

had executed at least one Interim Waiver prior to Bridgeland doing so. Addicks

claims that Bridgeland’s failure to assert that the Interim Waivers released

those claims at that time—rather than negotiate over change orders and issue

payment—raises a fact issue for trial regarding whether Bridgeland impliedly

waived its right to rely on the Interim Waivers. Bridgeland responds that each

such change order and payment for extra work was invariably followed by a

subsequent Interim Waiver that again released any outstanding claims.

Bridgeland further argues that its decision to negotiate is entirely consistent

with adhering to the processes laid out by the contract—processes that include

the execution of Interim Waivers—and is inconsistent with waiver of its right to

assert release.

We agree with Bridgeland’s interpretation. The undisputed facts show

that Bridgeland and Addicks followed the process for requesting change orders

delineated by the Contract in their negotiations over the thirty-four claims

referenced above. Also as contemplated by the Contract, Bridgeland continued

to insist that Addicks execute Interim Waivers in exchange for each progress
No. 09-20155

17 In attempting to support its waiver argument, Addicks also comments that

Bridgeland first “asserted the [Interim Waivers] as a defense to Addicks’ claims . . . in

connection with this litigation.” We fail to see how asserting an affirmative defense to a cause

of action in litigating a dispute suggests an intention to waive that affirmative defense.

18 Addicks cites Green International, Gilbane, and numerous construction-dispute cases

from other jurisdictions for the proposition that conduct inconsistent with a contractual right

will result in a waiver of that right. Those cases deal generally with whether particular

releases served to release specific claims and not with whether an owner’s decision to negotiate

a compromise with a contractor waives the right to rely on those releases.

19

payment. This conduct is wholly consistent with strict adherence to the

Contract and wholly inconsistent with waiver of the right to rely on the Interim

Waivers.17 Proving implied waiver requires a litigant to clear a high threshold

by clearly demonstrating the other party’s intentto relinquish a right. Compare

Jernigan, 111 S.W.3d at 157 (holding that waiting 600 days after the untimely

filing of a mandatory expert’s report to move to dismiss and filing motion for

summary judgment on other grounds in the interim was not sufficient to

establish waiver because those actions were not inconsistent with an intent to

assert the right to dismissal), with Tenneco, 925 S.W.2d at 643–44 (holding as

a matter of law that contractual right of first refusal for transfer of an ownership

interest was waived where three years after noncomplying transfer elapsed

without complaint before lawsuit was filed), and Fairfield Fin. Group, 814

S.W.2d at 208–10 (holding that a bank’s acceptance of payments, over the course

of eight months,that did not conform to the original repayment schedule waived

the bank’s right to insist on strict compliance with the original repayment

schedule).18 The facts, construed most favorably to Addicks, do not clear that

threshold, and Addicks’s waiver claim fails.

C. Promissory Estoppel

Finally, Addicks argues thatthe equitable doctrine of promissory estoppel

prevents Bridgeland from claiming that the Interim Waivers released the
No. 09-20155

19 Addicks also briefly mentions the doctrine of quasi-estoppel and cites one case

invoking it. See Eckland Consultants, Inc. v. Ryder, Stilwell Inc., 176 S.W.3d 80, 87 (Tex.

App.—Houston [1st Dist.] 2004, no pet.). “The doctrine of quasi-estoppel precludes a party

from asserting,to another’s disadvantage, a rightinconsistent with a position previously taken

by that party.” Id. Quasi-estoppel is similar to equitable estoppel, but “[u]nlike equitable

estoppel, quasi-estoppel requires no showing of misrepresentation or of detrimental reliance.”

Id. As discussed above, Bridgeland’s conduct in negotiating change orders and payment while

still obtaining Interim Waivers was not inconsistent with asserting its right to invoke the

release provisions of the Interim Waivers. Addicks therefore cannot satisfy the requirements

of quasi-estoppel.

20

present claims.19 “The requisites of promissory estoppel are: (1) a promise, (2)

foreseeability of reliance thereon by the promisor, and (3) substantial reliance

by the promisee to his detriment.” English v. Fischer, 660 S.W.2d 521, 524 (Tex.

1983). The alleged promise must not be “too vague and indefinite.” Gillum v.

Republic Health Corp., 778 S.W.2d 558, 570 (Tex. App.—Dallas 1989, no writ);

accord Neeley v. Bankers Trust Co. of Tex., 757 F.2d 621, 630 n.7 (5th Cir. 1985)

(“The same indefiniteness that makes the putative contract unenforceable

prevents Neeley from prevailing on a promissory estoppel theory.”); Gilmartin

v. KVTV–Channel 13, 985 S.W.2d 553, 559 (Tex. App.—San Antonio 1998, no

pet.) (holding that alleged oral promises, which failed to modify a contract,“were

. . . too indefinite to permit estoppel causes of action”). A promisee’s “reliance

must be both reasonable and justified.” Vlasek v. Wal-Mart Stores, Inc., No. H07-0386, 2007 WL 2402183, at *6 (S.D. Tex. Aug. 20, 2007) (citing Frost Crushed

Stone Co. v. Odell Geer Constr. Co., 110 S.W.3d 41, 45 (Tex. App.—Waco 2002,

no pet.); Gilmartin, 985 S.W.2d at 558). Where these requirements are satisfied,

promissory estoppel “‘prevents a party from insisting upon his strictlegal rights

when it would be unjust to allow him to enforce them.’” In re Weekley Homes,

L.P., 180 S.W.3d 127, 133 (Tex. 2005) (quoting Wheeler v. White, 398 S.W.2d 93,

96 (Tex. 1965)).

We conclude that Addicks’s evidence fails to raise a genuine issue of

material fact on whether Bridgeland made a definite promise and on whether
No. 09-20155

20 Relating to our discussion of Addicks’s ambiguity arguments above, we also note that

under Texas law, promissory estoppel may not be used to circumvent the parol evidence rule.

Highlands Mgmt. Co. v. First Interstate Bank of Tex., N.A., 956 S.W.2d 749, 757 (Tex.

App.—Houston [14th Dist.] 1997, pet. denied); Stavert Props., Inc. v. RepublicBank of N. Hills,

696 S.W.2d 278, 282 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.).

21 Barfield averred that “Patsy Morris promised me she would pay Addicks when the

extra work was completed. . . . Ms. Morris repeatedly assured me that Addicks would get paid

for all the extra work she directed Addicks to perform even though [an] approval process on

some items was necessary.” (Barfield Aff. 5.) He further averred that “Ms. Morris . . . said we

would deal with payment later and said the items could not be billed until she said so.” (Id.

at 8.)

22 In one message, Morris stated:

David is still under the impression that he is not to do anything in those

areas [the information center and berm] until you and I resolve money. I told

him that wasn’t my impression; that my impression was that you said you

weren’t going to hold anything up, you know, while we are trying to resolve it.

21

Addicks reasonably relied on Bridgeland’s statements.20 The evidence Addicks

cites in support of its promissory estoppel theory consists of an affidavit by its

president, C. Nelson Barfield, and transcripts of voice mail messages left by

Patsy Morris, Bridgeland’s project manager. The alleged promises described in

Barfield’s affidavit amount to an assertion that Bridgeland would resolve

Addicks’s claims for extra work at a later date.21 Such statements of an

intention to reach agreement have been found too vague and indefinite to

survive summary judgment on promissory estoppel. See Global Integrated Bldg.

Sys. v. Target Logistics, LLC, No. H-06-2637, 2009 WL 259360, at *9 (S.D. Tex.

Feb. 3, 2009) (holding that statements amounting to “[If you] ‘can get these

buildings built, I will get you paid’” are too vague and indefinite as a matter of

law in a “multi-million dollar construction contract dispute”); Weitzman v.

Steinberg, 638 S.W.2d 171, 176 (Tex. App.—Dallas 1982, no writ) (holding that

“an agreement to agree” is too indefinite to establish promissory estoppel).

Morris’s voice mail messages similarly reflect the indefinite assurance of an

ongoing negotiation process, rather than a commitment to perform specific acts,

and do not evidence a definite promise.22 See Gillum, 778 S.W.2d at 570 (finding
No. 09-20155

. . . .

But I told them to stop everything until you and I can resolve this,

because if we can’t resolve it then I need to stop everything and I need to get

someone else in here to get this fill into the information center and the berm.

Morris followed up with another message over one week later:

Yeah, nothing is resolved it’s not going to be resolved until you and [the

engineers] so, you know, you all kind of agree on the quantities.

My suggestion would be, like I said, that the[ engineers], you bill at your

contract price for quantities, and we’ll have to resolve whatever dollar amount

you may or may not be over that, but we’ll get you something for this dirt that

you’re moving for the berm and that kind of things.

(Voicemail Tr. 2–3, 5.)

22

too vague and indefinite alleged promises that purchaser of hospital would “have

sufficient funding to upgrade the hospital’s equipment care; that the hospital

would remain primarily a [doctors of osteopathy] hospital; that [the plaintiff]

could continue to make the changes to upgrade the level of health care at the

hospital; and that a new hospital facility was to be constructed” (footnote

omitted)).

The vagueness and indefiniteness of the alleged promises also foreclose

Addicks’s claim that it has raised a fact issue regarding reasonable and

justifiable reliance. See Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 142 (Tex.

App.—Houston [14th Dist.] 1999, pet. denied) (“[I]n the absence of a definite

promise . . . reliance [i]s not reasonable or justified as a matter of law.”);

Simpson v. MBank Dallas, N.A., 724 S.W.2d 102, 108 (Tex. App.—Dallas 1987,

writ ref’d n.r.e.) (holding that guarantor who had “signed numerous prior

guaranties in favor of MBank on the exact same guaranty form contract” could

not have reasonably or justifiably relied on alleged assertion by MBank that a

later guaranty was a “mere formality”).

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

AFFIRMED.