## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 19

- 00 015

- CV

___________________________

On Appeal from the 96 th Dist rict Court Tarrant County, Texas Trial Court No. 096

- 291699

- 17
Before Sudderth, C.J.; Womack and Wallach , JJ. Memorandum Opinion by J ustice Wallach 

### T ONY 

### C OLEMAN 

### , Appellant

V


### . O TESE 

### L TD



### . , Appellee2 MEMORANDUM OPINIO N Appellant Tony Colem a n sued Appellee Otese, Ltd. 1 (d/b/a Texas Raceway) for injuri es he sustained on Au g ust 2 8, 2015, at a drag strip Otese owned

. 2 The trial court granted no

- evidence and traditiona l summary judgment for Otese

. In two issues, Coleman argues that the tri al cou rt erred by grant ing traditional summary j udgment on Otese ’ s affirmative defense of rel ease and by granting no

- evidence and

tra ditional summary j udgment for Otese on Colema n ’ s negligence and gross

ne gligence claims. We affirm in part and reverse in part. Because Colem an ’ s summary judg me nt evidence did not raise a genuine issue of material fact on gross negligence, we affirm
the trial court ’ s no

- evidence summary judgment on that claim. However, we re verse the no

- evidence and traditional summary judg ment s on Coleman ’ s negligence claim
b ec a u se Otese ’ s summary judgment evidence did not establish as a matter of law that
Coleman released his negligence claim an d because the summ ary judgment evidence
rais ed a fact issue on that claim

.

1 Appellee asserts that it was incorrectly named “ Otese, Ltd. ” in the trial court
a nd tha t the correct spel ling of its name is “ O te es e , Ltd

. ” I t spelled i ts name th at w ay in some of its fili ngs in the trial court

. However, it also asserted in the trial court that the correct spelling of its name is “ Otesee, Ltd. ” For consistency, we spell Appelle e ’ s n ame as “ Otese

. ”

2 Cole ma n also sue d H ielscher Racing, Inc. and Cyn thia Hielscher McM illa n but later nonsu it ed those cla ims

. Coleman ’ s alleged common

- law wife was at one point, a plaintiff in the suit , bu t she has not appealed the tria l court ’s summary judgmen t dismissi ng her claim s .3 Background
In Coleman ’ s third amended petition, he alleged t h at at the time of the racing
accident that c aused his i njuries, he was engaged in a spons ored drag race at Texas Raceway

. The race imm edi ately prior to Coleman ’ s had ended in a crash (the earlier
accident ) , which, a ccording to Coleman, caused mot or oil a n d other substances to spill onto the track lanes on which Coleman subsequently drove during his race. Coleman alleged that while Texas Raceway workers attemp t ed to c lean up the fluids
from the earl ier accide nt , th eir attempt was ineffective, leav ing t he tra ck slick and
unsafe , and that becau se of th is unsafe condition , he lost control of his vehicle during
his race and crashed into a retaining wall

. The crash cause d a fire and C oleman
suffered severe burn s a nd orthopedic injuries. Colema n ass er ted claims for negligence and gross negligence for Otese ’ s failure to adequately clean the unsafe track
conditions , provide appr o pri ate fire

- fighting equipment, provide appropr iate medica l
person ne l an d equipme nt, an d provide an adequately

- designed safet y r etai ning wall

. Otese filed a combined no

- evidence and tra ditional summary judgment motion.
A s no

- evidence gr oun ds , Otese asserted that there w as no evidence that Texas
Racewa y breached a ny alleged duty to Colema n , that any breac h pro x imately caused
Cole man ’ s injuries , or that O tes e acted with malice or in a grossly negligent manner

. As tr aditional groun d s , Ot ese asserted that the summary jud gment evidence defeated
Coleman ’ s c laim s on the merits because the evidence co nclu s i ve ly demonst rated that
it did not breach any duty o w ed to Coleman , th at any brea ch did not proximately4 cause his injuries , and that C oleman ’ s own negligence was the sole cause of his
accident

. Ot ese fur ther asserted as a tradition al summ ary j u dgment ground that its summary judgment evidence established as a matter of law the affirmative d efense of
release. S pecific ally , it argue d that Coleman ’ s claims were barre d by the doctrin e o f
waiver o r release based on his having signed two documen ts: a “ tech card ” and a

“ Release and Waiver of Liability , Assumption of Risk and Indemnity Agreement ” (Release form )

. The tech card is a docume nt that Texas R a ceway r equire d each driver to sign before receiving the technical inspec tion of the driver ’ s vehicle that Texa s Rac e way require d before every race . The tech card state s , In consideration for being allowed to participate in e vents, I affir m that I h ave read, understand[,] and agree to be bound by all K& K , NHRA[, ]
a nd Te xas Raceway rule s, regulations[,] a nd ag r ee ments, including, but not limited to, those contained in on [sic] the K & K Insurance Waiver I signed a t the entrance gate , NHRA R ulebook, with spe cific reference, and TXR rules but not limited, to the rules, re gu lations[,] agree ments contained in the A d minist ra tion Procedures and Appeals Section of the NHRA Rulebook [,] which are incorporated herein by refe rence. I have the authority to bind the vehicle ’ s owner to these terms if the owner is someone o ther than mys elf. I understa nd that K & K In s urance, NHRA [,] and TXR make [ ] no repr es entations , warranties, or a ssurances that technical Inspections, including review of any wr itten information, will:

• d etect every or any vehicle, equipment, clothing [,] or rule compli ance problem ; or
• prevent i njury , death[,] or property damage. I agree tha t I bear responsibility at all times to e nsure the safety of the vehicle, equipment[,] and clothing in question and compliance with all5 K&K Insurance, NHRA[,] and TXR ru les, re gulatio ns[,] and agreem ent s , inclu ding , but not limited , to those contained in the K& K Insurance waiver , NHRA Rulebook o r TXR rules. I agree that I am in the best positio n to know about the construction and operation of the vehicle, equipment [ ,] an d clothing in question , and c ompl iance w ith a ll K& K Insurance , NHRA rules and TXR, regulations and agreements, including, but not limited, to those contained in the K &K Insuran ce waiver , NHRA rulebook[,] and TXR rules. I agree that participation in any and every asp ect of the sport of drag ra cing i s a privilege, not a right, and I wish to participate in accordance with all of the foregoing. [Emp hasis added.] Accord ing to Otes e, the “ K & K Insurance Waiver ” language in the tech card is a reference to th e Release form , which p rovi des as follow s: IN CONSIDERATION of being permitted to compete, officiate, observe, work [,] or participate in any way in the EVENT (S) or being permi tted to enter for any purp ose any RESTRICTED AREA (defined
as any area requiri ng sp ecial a uthor ization, cred en t ials, o r per m i ssion to enter or any area to which admi ssion by the general public is restricted or pro hibited) , EACH OF THE UND ERSI GNED, for hims elf, his personal represen tatives, heirs, and next of kin : 1. Acknowledges, ag rees, and re prese nts that he h as or will imme d iately upon enterin g any of such RESTRICTED AREAS , and will continuously thereafter, inspect the RE STRICTED AREAS [tha t] he enters, and he further agrees and warrants that , if at any time, h e is in or about RES TRICTED AREA S and he feels any thi ng to b e uns a fe, he will immediately advice the officials of such and if necessary will leave th e RESTRICTED A REAS and/or refus e to participate f urther in the EVENT(S).
2

. HEREBY RELEASES, WAIVES, DISCHARGES[,] AND COVEN AN TS NOT TO SU E the

. . . track oper ators, trac k
ow ners, . . . [and] owners and [lessees] of premis es used to conduct the EVENT(S) , . . . herein referred to as “ Releasees, ” FROM AL L LIABILITY TO THE UNDERSIGNED

. . . FOR ANY AND ALL LOSS OR DAMAGE, A ND A NY C LAIM OR DEMANDS TH EREFOR ON ACCOUN T OF I NJUR Y TO THE PERSON OR PROPERTY OR RESULTING IN DEATH OF THE UNDERSIGNED A RISI NG OUT OF OR6 RELATED TO THE EVENT (S) WHETHER CAUSED BY THE N EGLIGENCE OF THE RELEASE ES OR OTHE R W I SE.
3. HEREBY AG REES TO I NDEMNIFY AND SAV E AND HOLD HARMLES S the Releasees an d ea ch o f them FROM ANY LOSS, LIABILITY, DAMAGE, OR COSTS they m ay incur arisi ng o ut of or related to the UNDERSIGNED ’ S INJURY OR DEATH , WHETHE R CAUSED BY THE NEGLIGENCE OF THE RELEA SE ES OR OTHERW ISE.
4. HE REBY AS SUME S FU LL RE SPON SIBILITY FOR ANY R ISK OF BO DILY INJ U R Y , DEA TH[,] O R PROPERTY DAMAGE a rising out of or relat ed to the E VEN T(S) whether caused by the NEGLIGENCE OF RELEASEE or otherwise.
5. HEREBY acknowledges that THE ACTIVITIES OF THE EVE NT(S) ARE VERY DA NGER OUS and involve the r isk of serious i nju ry a nd/o r death and/or property damage. Each of THE UNDERSIGNED , al so express ly a cknowledges that INJURIES RECEIVED MAY BE COMP OUNDED OR INCR EASED BY NEGLIGENT RESCUE OPERATIONS OR PROCEDURES OF THE RELEASE ES.
6

. HE REBY agrees that this Release and Wai ver of Liab i l ity, Assumption of Risk, and Indemnity Agreemen t exten ds to all acts of negligence by the Releasees, INCLUDING NEGLIGENT RESCUE OPER ATIONS and is intended to be as broad and inclusive a s is permitted by the law s of the State or Province in whi ch the Even t ( s) is/are conducted and that if any portio n thereof is inv alid, it i s ag reed that the balance shal l, notwithstanding, continue in fu ll legal forc e and effect. I HAVE READ THIS RELEASE A ND WAIVER OF LIAB ILIT Y, A SSUMPTION OF RISK AND INDEMNITY A GRE EMEN T, U N D ERSTAND ITS TERM S, UNDERSTAND THAT I HAVE GIVEN UP SUB STANTIAL RIGHT S BY SIGN ING IT, AND HAVE SIGNED IT FREELY AND VOLUNTARILY WITHO UT ANY INDUCEMENT, ASSURAN CE [,] OR GUARANTEE BEING MA DE TO ME AND INTE ND M Y SI GNATURE TO BE A C OMPLETE AND UNCO NDI TION AL7 R E L EASE OF A LL LIABILITY TO THE GREATEST EXTENT ALLOWED B Y L AW. The Release form does not define “ event (s ) ” and does not ide ntify itself as or mention a K & K Insurance Wa iver

. In a deposition, Colema n den ied signing a Release for m on the d ay o f the accident but acknowledged having signed such forms before some of h is previous races at Texas Raceway , and he acknowle dged that on other oc casions a member of
his crew had probably sig ned his name on a Rele ase form

. Based on t he R e l eas e form
and the t ech card , Otes e asserted that Colem an ’ s claims faile d as a matter of law

“ under the d octrine o f waiver and/or rel ease. ”
In Coleman ’ s response, he asserted that Otese breached its d uty to provide a reasonably safe racing loca t i on for race pa rticipants and t o have adequate and functioning fire suppression equipment present at the race track

. Co leman further argued that Otese had failed to meet its burden to establish w aiver. He directed the
trial court to s umma r y judgment evidence t o support his allegations about the conditions of the track before his race, inadequate clean

- up efforts by Texa s Raceway employees, and the lack of adequate fire

- fighting equ ipment and pers onn el employed by Te xas Raceway

. T he t ri al c o u rt granted Otese ’ s summary ju dgment motio n “ i n all resp ec ts ” and
dis missed Coleman ’ s clai ms. Coleman now appeals.8 Standard of Review
I. Traditional Summa ry Judgment Motions We review a summary judgmen t de novo. Travelers Ins. v. Joachim , 3 15 S. W .3d 860, 862 (Tex. 2010)

. We conside r t he evidence p resented in th e light most favorabl e to the nonmovant, crediting evidence favor able to the nonmovant if reason able jurors could, and disregarding evidence co ntrary to the nonmovant unless reasonabl e j ur o rs could not. Mann Frankfort Stein & Li pp Advisors, Inc. v. Fieldi ng , 289 S.W.3d 844,
8 48 (Tex. 2009). We indulge every reasonable inference and resolve any doub ts in the

nonmovant ’ s favor. 20801, Inc. v. Pa rker , 249 S.W.3d 392, 399 (Tex. 2008).
A de f endant that conclusively negates at lea s t one essential element of a plaintiff ’ s cause o f action is entitled to summary judgment on that claim. Frost Nat ’ l
Bank v . Fernandez , 315 S.W.3d 494, 508 (Tex. 2010 )

. Once the defendant produces
sufficient e vid en c e to establi sh the right to summary jud g ment, the burde n shifts to the plaintiff to come forward with competent controverting eviden ce that raises a fact
issue. V an v. Pe ñ a , 990 S.W.2d 751, 753 (Tex. 1999). A defendant is entitled to summary judgme nt on an affirmative defense if the defendant conclusively pr oves all
ele ments of th at defense

. F rost Nat ’ l Bank , 315 S.W.3d at 508

– 09 ; s ee Tex. R. Civ. P. 166a(b), (c)

. To accom plish this, the defendant must prese nt s ummary

- judgment
evidence that conclu siv el y establishes each element of the affirm a tive defense. See
Chau v. Riddle , 254 S.W.3d 45 3, 455 (Tex. 2008)

.9 II. No

- Evidence Summary Judgment Motions
A fter an adequ ate time for discovery, the party without the burden of proof may, without presenting evi de n ce, move for summary judgm ent on the gr ou nd that

no evi dence support s an essential elemen t of the nonmovant ’ s claim or defense. Tex

. R. Civ. P. 166a(i). The m otio n must specifically state the elements for whi ch no
evidence exists

. Id. ; Timpte Indu s., I n c. v. Gish , 286 S.W.3d 306, 310 (Tex. 2 00 9). The
trial court must g rant the motion unles s the nonmovant produces summary

- judgment

e vidence that raises a genuine , m aterial fact issue. See Tex. R. Civ. P. 166a( i) &
1997 cmt.; Hamilton v. Wilson , 249 S.W .3 d 425, 426 (Tex. 2008).
As with a tra dit io nal summary ju dgment, w hen reviewing a no

- eviden ce summary judgment, we examine the record in the light most favorable to t he nonmovant, indulging every reasonable infer ence and resolving any doubts against th e

m ot i o n, crediting evidence favorable to the n onmovant i f re asonable juro rs could and disregar ding evidence contrary to the nonmovant unl ess reasonable jurors could not. Timpte Indus. , 286 S.W.3d at 310 ( cit ing Mac k Trucks, Inc. v. Tamez , 206 S.W.3d 572,
58 2 ( Tex. 2006)) ; Sudan v. Sudan , 199 S.W.3d 2 91, 292 (Tex. 2006)

. If th e nonmovant brings fo rward more than a scintilla of probative ev idence that raises a genuine iss ue of material fact, then a no

- evidence summar y judgment is not proper. Smith v.
O ’ Do nne ll , 288 S.W.3d 417, 424 (Tex. 2009); King Ra nch, Inc. v. C hapman , 118 S .W.3d 742, 751 (Tex. 2003).10 D iscus sion
I. Otese failed to estab lish i ts affirmative d efense of r elease. In his first issue, Coleman challenge s whether the documents relied on by
Ote se

— one wi th o ut Coleman ’ s signature (the Relea se form ) and one that did not contain the language required for a n effec t ive waiver or releas e (the tech ca rd)

— are legally su fficien t t o constitute a waiver or release.
A. F air notice requirements apply to rel eases. A re l ease

— an agreement to relieve a part y of li ability f or its own fu ture negligence

— is an extraordinary shifting of risk , and the law ther efore applies the fair
notice r equirements of indemnity agreements to releases

. Dresser Indus., Inc. v. Page
Petroleum , I nc. , 853 S.W.2d 505, 508 (Tex. 1993 ). Fai r notice consists of two parts: (1) the express negligence doctrine, under which a party seeking a release from the
conseq uences of that party ’ s own negligence m ust express that intent in specific term s within th e four corners of the contract , a nd (2) the conspicu ous requirement, which
mandates that something must appear on the fa ce of t he contract to attract the
attention of a reasonable person looking at it

. Id

. The Supreme Court of Texas has adopte d the U ni fo r m Commercial Co de ’ s definition of c onspicu ousness , which provides in part that “ [a] term or clause is conspicuous when it is s o written that a reasonable person against whom it is t o operate ought to have noticed it. ” Id. at 511.
Whether a co ntract me et s the fair notice requirements is a question of law. Id. at 509.11 B. The summary judgment evidence did not establish as a ma tter of law the fair notice requirements.
1. The evidence established that Col eman signed the tech card , but the tech card does n o t expressly contain a release and does not incorporate the Release form
. Otese ’ s summary judgm ent evidence established that C oleman s igned a tech
card before his race o n the date of his accident ; Otese a ttached to its motion an excerpt from Co leman ’ s dep os iti on testimony in which Coleman ackno wledged doing

so . The tech card, however, does not contain language expres sing an intent to relieve
Otese of liability for it s own negligence.
A t leas t one cou rt of appeals has suggested tha t the fair no tic e requirements could be met by a release set out in a s eparate do cument when that s eparate document is clearly incorporate d by reference into the parties ’ agreement. See ALCOA v. Hydrochem Indus. Ser v

s. , Inc. , No. 13

- 02

- 00531

- CV, 2005 WL 608232, at

* 9 ( Tex. Ap p.

— Corpus Christi

– Edinburg Mar. 17, 2005, pe t. denied) (mem. op.) ( consid ering whether an indemnity was incorpora ted by reference into the parties ’
contract and holding that when the contract inc orporated six other documents, and
the docum ent t hat c ontained the inde mnity provision was titled “ SUPPL. TERMS &
CONDITI ONS FORM R

- 380

- 1, ” the reference was insufficie nt to meet the conspicuousness requirement for inde mnity agreements )

. Assuming incorpor ation by reference applies to releases , Otese ’ s s ummar y judgment arguab ly raised this concept as a ground

. W hile the mot ion did not expressly assert th at the tech card12 incorpora ted the Release form by reference , it did assert that the “ K & K Insurance
Wai ver ” referenced in the tech card include d releas e lan guage. A ssuming this

statement sufficiently asserts incorporation b y referen ce , r eviewing the tech c ard ’ s plain la n guage, the tech card does not specifically state that i t incorporate s any othe r document into its terms. The tech car d does n ame s everal other docu ments and ask s the signer to agree to those documents, but t he Release f orm is not identified as one of thos e documents.
Ot ese contends that the “ K & K Insuranc e Waiver ” named in the t e ch card is
the Release form , but Otese pro duced no evidence esta blish ing that fact

. N othing on
the face of the Rel ease form indica tes that it is the same doc ument as a “ K & K
I nsurance Waiver. ” Noth ing in the tech card tells the signer that the referenc e d

“ K & K Insurance Waiver ” is t he Release form

. Acc ording ly, t he tech card d oes not incorpora te the Release form. See id. , at *9 ; see also Owen v. Hendricks, 433 S.W.2d 164,
1 67 (Tex. 1968) (stating that an unsigned document may be incorporated by refer e nce in to a signed document if the signed docum ent expressl y refers to the un s igned
document , that t he language used to incorporate the other document is not important provided t hat the s igned document plainly refers to the other do cument, and that the
doc t rine of incorporation does not permit severa l writings to be read together s i mply
because they appear to relate to the same transac tion ) ; Bob Montgomery Chevrolet, Inc. v.
Dent Zone Co s. , 409 S.W.3d 181, 189 (Tex. App.

— Dallas 2013, no pet.) (noting that f o r purposes of incorporating a document by refe rence, “ [p] l ainly referri ng to a document13 requires more than merely m entioning the do cument ” and that “ [t] he language in the signed doc ument must show the parties intended for the other document to become
part of the agreement ” ).
B ecause the tech card do es not incor porate the Re lease form by referenc e and
does not otherwise meet the fair n ot ice requirements , it does not constitute a n ef fe ctive release. See Dresser Indus. , 853 S.W.2d at 508

. 2
. The evidence d i d not establi sh that Coleman ’ s crew member had actual or a pparent authority to sign the Re lease form for h im.
Otese d id not use the p hrase “ apparent authority ” in its summary ju dgment motion, but it d id assert that Coleman acknowledged in his deposition t h at he had to sign a Release form before each r ace and also acknowledged that “ others may h ave be en relying on ” his si gnature o n the R elease form. Assuming that this lan guage sufficiently raised apparent authorit y as a summary judgment ground , Ote s e ’ s evidence did not establish appa rent author ity as a mat ter of law.
Otese ’ s brief cites to Nat ion s Bank v. Dilling , 922 S.W. 2d 950, 953 (Tex . 1996) for the proposition that Col eman ’ s c rew members had authority to act on his behalf

. That case is not an i n demnity or release case an d is therefore not directly re levant authority for whet her a r elease may be binding on a principal if it was execut ed by the principal ’ s agent who had apparent authorit y to do so

. However, courts h ave suggest ed that apparent aut h ority can, in some cases, bind a principal t o an indemni ty agreement accepted by an agen t
. Se e Rourke v. Garza , 530 S.W.2d 7 94, 802

– 04 ( Tex.14 19 75 ) (holding that there was no ev idence that the p rincipal had knowledge of the indemnity provision and no evid e nce that the agent had apparent authority to enter into an indemnity agreeme nt ) , abrogat ed on other grounds by Ford Motor Co. v. Ledesma , 242 S.W. 3d 32, 45

– 46 ( Tex. 20 07) ; R & R Marine, Inc. v. Max Access, Inc. , 377 S.W.3d 780, 790 (Tex. App.

— Beaumont 201 2 , no pet.) (same ) ; Expro Am s. , LLC v. Sangui ne Gas Expl. , LLC , 351 S.W.3d 915, 926 ( Tex. App.

— Houston [14th Dist.] 2011, pet. denied) (conclu d ing that that there was a fact issu e regarding w hether the party relying on the indemnity provision could have re a sonably believed that the other party ’ s empl oyee had aut hority to bind th e other par ty to an i ndemnity provision ) ; A ir & Pump Co. v. Almaquer , 609 S.W.2d 309, 313 ( Tex. App.

— Cor pus Christi 1 980, no writ) (stating in one sentence, as an additional groun d f o r holding that the indemnity provisio n did n ot apply, th at “ the testimony concerning the contr act established that the employ ee of IPC who si gned the delivery ticket [containing the indemnit y provision] did not have authority to enter into any kind of a c o ntract that would bind
IPC ” )

. However, an a gent cannot create the authority to bind the principal; a ctual or
appa rent author ity is created o nly by the principal ’ s words or cond uct
. First Valley Bank of Los Fresnos v. Martin , 144 S.W.3d 466, 471 ( Tex. 20 0 4) (stating that apparent authority must be based on the acts of the principal ); Jarvis v. K & E Re One, LLC , 390 S.W.3d 631, 640 (Tex. App.

— Dallas 2012, no pet.) (noting that a ctual authority cannot be based merely on the words or deeds of the agent ); Gr e enfie ld Energy, Inc. v. Duprey , 252 S.W.3d 7 21, 734 (Tex . App.

— Houston [14th Dist.] 2008, no pet.)15 (explaining that an a gent ’ s actual or appa rent authority is created by the pri ncipal

—

a c tual authority is created by the principals ’ w ords or conduct to the a gent while apparent authority is created by the pri ncipa l ’s words or conduct to a third party )

. Otese did not present any evi dence of the ide nti t y of the person who signed
the Release form for Coleman on the day of his acc ident , did not present any evid e nce of whether the person was one of Coleman ’ s crew me mbers , did not establish as a

matt er of law that the particular person wh o signed the Rel ease f orm on that day had
actual o r apparent authority to bind Coleman to its terms , and did not establish as a

m att er of law that all of Coleman ’ s crew memb ers h ad actual or apparent a uthority to do so

. The tech card includes the s tatemen t, “ I have the a uthority to bind the
vehicle ’ s own ers to these terms if the owner is someone other than myself, ” but the
Release form does not. W hen ask ed in his depos i tion who had signed the Release
for m on the day of his accident , Coleman re sp onded that it was “ probabl y ” one of his
crew members

. Coleman was asked if his crew members were author i zed “ to sign your name to forms like this , ” to wh ich he gav e the nonresponsive answer , “ They normally take the vehicle, and they ask at t he gate who ’ s driving. ” Asked later if his

c rew members “ would have been authorized to do that, ” he respond e d, “ I ’ m not sure what you mean, authorized t o do that. ” He was not asked a follow

- up question to elicit more information

. Col e man testified at one point in his depos itio n that he
unders tood that he had to sign a tech card in order to r ace, but h e made no such

stateme nt about the Release form. Asked if he understood that by signing the tech16 card, he was signing a w aiver form in order to race , he stated, “ I understood that I was signing a tech card to get my ca r teched in. ”
This evidence is not enough to estab lish ac tual or apparent authori ty as a matter of law, and the record does not include other evidence establ ish ing actual or apparent authori ty as a mat ter of law. See Autogas Acquisi tions Corp. v. Kelman , 386 S.W.3d 3 5 5, 358

– 59 (Tex. App.

— Dal las 2012, no pet.) ( noting “ [t] he test in determining the question of a pparent authority is w hether there is such conduct on the part of the principal as would lead a reasonably pr udent person usi ng diligence
and discretion to beli e ve that the agent had authority to act for t he principal ” and that

“ [a]p parent authority arises either from a principal knowingly permitt ing an agent to
hold himself out as havi ng authorit y or from a prin cipal ’ s actions [that] lack such ordinary care as t o clothe an agent with the indicia of autho ri ty ” )

. Because Otese failed to esta blish as a matter of law that Coleman ’ s crew

mem ber signed the Release form on the day of the accid ent , that h is crew member
h ad actual or app arent authority to sign for him, th a t Coleman knew his cre w member was signin g t he Release for m in his place , or that the crew member was , with
Colema n ’ s knowledge, holding himself out as having the authori ty to s ign the Release
form on Col eman ’ s behalf, O tese w as not entitled to summary ju d gment on its
affirmative defense of release

. See Exxon Mobil Corp. v. Rincones , 520 S.W.3d 572,
589 (Tex. 2017) ( no ting that a uthority t o act on the principal ’ s behalf is an es sential17 element of agency a nd that age ncy i s not presu med and must be proven b y the party alleging the existenc e of an agen cy relationship) ; Chau , 254 S.W.3d at 455

. 3. A ctua l knowledge obvia te s the conspic uousness requirement but not the express neglige nce requirement
. Otese did no t expressly asse rt in its summary judgment m otion that it did not
ha ve to establish fair notic e requirements because Coleman had ac tual k nowledge of
the Release form ’ s terms. I t did, however , ass ert that Coleman had signed the Release
form on previous occ asions

. Assumin g that this a ssertion ra i sed actual knowledge as a summary judgment gr ound , Otese nevertheless was not relie ved o f the requirement

to meet the exp ress ne gligence requirement fo r releases. Whether a par ty had actual notice or knowledge is a question of fact

. ALCOA , 2005 WL 60823 2 , at *10

. Because the purpose of the conspic uousness requirement
for releases is to pro tect a contracting party from surprise a nd an unknowing waiv e r of his or her rights , cons picuousness is unnecessary when a party has actual noti ce of
the release ’ s ter m s . C ate v. Dover Corp. , 790 S.W.2d 559, 561 (Tex. 1990)

. However,
f

or a n agreement to constitute a release, the agreement must act ually contain the

terms of the release within its four corners

. See Dresser Indus. , 853 S.W.2d at 5 08. Consequently, a ctu a l knowledge cannot substitute for the express negligence requirement , see Blanken sh ip v. Spectra Energy Corp. , No. 13

- 12

- 00546

- C V,
2013 WL 4334306, at *5 (Tex. App.

— Corpus Chris ti

– Edin burg Au g. 15, 2013 , no pet.) (me m. op.) (quoting Sydlik v. REEIII, Inc. , 195 S.W.3d 329, 333 ( Tex. App.

—18 Houston [14th Dist.] 2006, no pet.) ) , particularly when, as here, the release terms are

e xpresse d in a separate agreement not signed by the party who the proponent of the
agreement see ks to bind

. Acc ordingly , Colema n ’ s kno w ledge of the terms of the
Release form would obviate the need for Otese to make those te rms c onspicuous , but
Otese still had to establish that Col eman agreed to the terms in ord er for Coleman to be bound by them

. Se e id. Because the tech card d oes not c ontain language of release
and O tese fa iled to establish as a matter of law that C oleman si gned the Release form , Ot ese di d not es tablish that t he parties ’ agreement released Ot ese from liability for i ts

own negligenc e. Because Ot es e fa iled to establish as a matter of law that Cole man release d his claims against it, the trial court er red by granting traditional summary j udg ment on this ground. See Tex. R. Civ. P. 166a(c) ; F ros t Nat ’ l Bank , 315 S.W.3d at 508

– 09

. We

su stain C ol eman ’ s fir s t issue.
II. The summary judgment evidence ra ised a fact issue on Coleman ’ s neglig ence claim but no t his gross negligence claim
. In his sec ond issue, Coleman asks whether the trial court erred b y granting
Otese ’ s summary judgment motion “ despite obvio us fa ctual di sp utes a b out the [parties ’ ] conduct before and a ft er the incid e nt t hat is the subject of th is suit. ”
A. Ot ese challenged each of the negligence elements.
To prev ail on a common

- law neg ligence claim , a plaintiff must establish (1 ) a legal duty owed to the plainti f f

, (2) a breach of that duty , an d (3) d amages proximately19 resulting from the breac h. Dukes v. Ph ilip Johnson/Alan Ritchie Architect s, P.C. , 252 S.W.3d 586, 591

– 92 (Tex. App.

— Fo rt Worth 2008, pet. denied)

. In its no

evid ence motion, O t ese asserted that t h ere was no evidence of any of th e se ele ments. In its traditional summary judgment motion, Ot ese asserted that its s ummary ju dgment evidence conclusively demonstrate d th at Texas Raceway did not breach a duty to Coleman , t hat an y breach did not pro x imate ly c ause Coleman ’ s injury , and
tha t Coleman was the sole cause of his acciden t
. 1. The evidence defeated Ot ese ’ s right to summary judgment on negligence. T o nega te neg ligence as a matter of law , Otese ’ s motion referenced Col eman ’ s depositi o n testimony that he saw oil on the tr ac k fro m t he earlier accident and
watched t he crew work to clean the track bu t did not voice any complains ab out the

con dition of the tra ck o r decline to r ace ; that no one from Texas R a c eway demanded
tha t he race ; that Coleman k new before the accident that d rag racing can be
dan gerous ; th at he did not think anyone wit h Te xas Raceway intended for the

ac cident to happen ; that Coleman ack n owledged that a locking fuel cap had to be
installed on his truck ; tha t Coleman did n ot know if the t ruck h e was racing was
leaki ng f uel shortly after starting t he race and that he acknowledged that the truck
fishtailed or “ got a l ittle squir r ely ” about 60 feet past the start lin e ; and that Coleman
raced w ithout wearing a fi re

- retardant ra cing j acket, fire

- retardant raci ng gloves, or
fire

- retardant ra c ing shoes

.20 Otese further relied on the deposition of Garr y Gilland , Texas Raceway ’ s race direct or and head of safety

. I n th e dep osition , Gilland stated t hat he and his crew at
Texas Ra ceway h ad been tra ined on how t o respond to fluid spill s an d had th e equipment to do so and that he was at the raceway on the night of the accident

. H e further t estified that there were no fl uid spills from th e earlier accident that preceded
Colem an ’ s race , and he wa s “ very confident ” that the drag strip was free of fl uids
before Cole m an ’ s race . Gillan d also stated that th e prior ac ci dent occurred past the drag stri p ’ s finish line , and that Coleman ’ s accident happened before t hat po int

. He

state d that he found a fuel cap on the drag strip aft e r Coleman ’ s accident ; t hat he s aw a video of Coleman ’ s race tha t showed that Coleman ’ s tr uck had fuel coming out of it
durin g th e race , indicating that Coleman ’ s tr uc k was missing its fue l cap ; and that the
f

uel got on Cole man ’ s t ires during the race

. Gil land further testified t hat Coleman

c ou ld have refused to race ; that Cole man ’ s vehicle crossed the finish line at 122 mi les
p er hour and that this speed indicate d th at his foot was on the ga s at th at tim e ; th at Cole man did not take his foot of f the gas when his truck “ go t loose ” ( i.e. , wa s

“ skating around ” ) ; and that if C oleman had taken his foot of f the gas at that point , his

tru ck would have “ se tt led down ” and would have crossed the finish line between
4 0 an d 59 miles per hour , and the accident co uld have been preve n ted.
Coleman ’ s summ ary ju dgmen t response asserted that Texas Raceway had a du ty to provide a reasona bl y safe location for racing , that it was negligent in f ailing to clean the oil spill from the e arlier accident , and th at th e negligence prox imately caused21 Coleman ’ s vehicle to lose trac t ion and hit a wall

. He fur ther a ssert ed that Texas Raceway w as negligent in failing to provide adequate or function i ng fire

- fighting equipment and in faili ng to ade quately train f ir e

- fighting personnel and that this negligence was a proximat e cau se of his injuries. As evidence, Cole man pointed to his depo sition testimony that he saw the
aftermath and clean

- up of the earlier accident, including seei ng the car from the earlier
accide nt being tow ed away from the track , and saw oil on t he track from th at accident
and tha t the track ’ s onl y cleanup metho d for the oil was to sweep and pour cat litter
on the track , ra t her than burning o ff the oi l

. C oleman also testified that after his

a cci dent, his tr uck caught fire, and he was unab le to get out of the truck . T h e f irst
two fire exti nguishers Texas Raceway w ork ers attempted to use to put out the fire
were empt y . One of his own crew members broke in to the truck and pulled him out. Coleman a ls o referenced the de position tes ti mony of Otese ’ s cor porate representative , who acknowledged that Otese made money from races at it s track by charging the racers to partic ipate and by selling concessions to spectators. Coleman
directed the trial c o urt to the deposition testimon y of Gilland, the tra ck ’ s safety
directo r, who stated that to his knowledge none of the raceway wor k ers who worked on cleanup that night ha d been provided with any kind of safety manual or form al safety tra ining. The last time the trac k ha d employ ee training on fire s afety was in 2006, when the employees were trained on using a fire ext inguishe r , and that was the

exten t of their fire

- sup pression training

. Gilland stated t hat Texas Raceway had a fire22 tru ck present onl y for races inv ol vi ng me th an ol or if a n event promoter requ ested

one . Co leman suppli ed the report of racin g safe ty expert Martyn Thake , who stated
that “ [r]ace track surface clean

- up and firefighting a re both professional specialized
acti vities ” that “ requ ire training an d understandi ng of procedures, desire d results, materials, applicati ons, clean

- up [,] and pot e n tial hazards. ” He opin ed tha t the clean

up of the earlier accident “ was rushed and not completed in a manner that would
have eliminated the fluids depos it ed on th e s urfac e by the previous competitor , ” that
th e time it took for Texas Raceway wo r k ers t o extinguish the fire after Colema n ’ s accident was “ unacceptable , ” and tha t “ [t] he lack of professional fi refightin g
equ ipment and trained personnel is neglig en t, and t he resu l t could have been
foreseen. ” Thake pointed o ut the tra ck ’ s lack of dedicated firefi ghting appar atus and its lack of understanding that di fferent types of fu el caused “ ve ry different types of
fire and need to b e atta cked with differ ent extinguisher s and procedures. ” Thake
noted that Texas Raceway ’ s armco barrier had old posts and damaged rail that showed

“ obvious signs of rot, damage[,] and lack of mainte nance , ” with “ evi dence of many past impacts

. ” Thake stated that “ [t ]here is no reason for the rail to have separated and entered the [truck] duri n g the crash ” and that C ol eman was “ very lucky ” that the
rail “ did no t kill him as it went thro ugh the ca b. ”
Thake f urther stated tha t the c leanup methods described by G illand “ could not ha ve h ad a satisfa ctory result , ” that Gillan d “ obviously d [ i d

] not understa nd ” how t he23 clean

- up ma t erials employed by Otese have to be used to achieve th e desired result,
that the clean

- up efforts described by Gil land “ could not have re sulte d in a c l ean and
safe track , ” and that just pouring a b sorbent material on a spill and sweeping it u p

“ s hows a lack of understanding and knowledge

. ” Thake conc luded his re port by stating that Coleman ’ s accident “ was foreseeable and unnecessar y, ” that Coleman ’ s

race “ should not have been a llowed to occur , ” and that “ [i] t is obvious

. . . that the

c l ea n

- up was r ushed and in comple t e and that the firefighting equipme nt, personnel [,] and procedure s we r e a joke. ”
F inally, Colem an included his own affidavi t in which he stated that he saw
Texas Ra ceway person nel attempti ng to c l ean up the oil caused by the ear lie r ac ci dent , that his truck lost traction in the area where the oil spill had occurred , a nd that he
believed the oil spill had not been prope rly clea ned

. 3

3 In the trial court, Otese filed a mo tion to strike Tha ke ’ s report as untimely , which the trial co urt denied. Otes e does not complain about th is ruling on appea l

. Otes e doe s asse r t that Thake ’s affidavit does not assist Colem an because i t ignored both Gilland ’s testimony and the fact that C oleman ackno wledge d no t witnessing the earlier accident

. Otes e improperly include d t his assertion in its s ta te ment of facts rather than in t he brief ’s argument section , a nd we are not requ i r ed to consider it

. See Tex. R. App . P. 3 8.1 (g) (providing t hat t he sta tement of fa cts must state the facts pertinent to the issues and must not include argument). Even co ns id ering this argument, howev er, we find it unpersuasive

. Cole man ac knowledged n o t seeing the earlier accident but stated that he saw the af termath and t he raceway c rew ’ s attempted cleanup, and Thake specifically noted in his report tha t he had reviewed Gill an d ’ s deposition with ex hibits in making his report.24 2. The evidence de feats Otese ’ s ri ght t o j u d gment as a matter of law
. On the element o f duty, Otese did n ot establish i ts ent itlement to s ummary judgment as a matter of l aw. The t raditional duty owed by a landowner to i nvit e es applies to the owne rs of sports facili ties

. H athaway v. Tasco sa Count r y Club, Inc. , 846 S.W.2d 614, 618 (Tex. A pp.

— Amarillo 1993, no writ)

. Thus, i f Coleman was an invitee, Otese owed him a dut y t o exercise reasonable care to protect him from a d angerous cond ition on the premises by either adequatel y warn ing him ab out the

c o ndition or making the condition safe

. S ee Wal

- Mart Stores, Inc. v. Gonzalez , 968 S.W.2d 934, 936 (Tex. 1998) (discussing the duty a landowner owes to invitees) ; Pipkin v. Krog er Tex

. , L.P. , 383 S.W.3d 655, 672 (Tex. App.

— Houston [14th Dist.]
201 2, pet. d e nied) ( same)

. To supp ort the applicatio n of this duty to his case, Coleman produc ed evidence that he was at the r aceway as an invitee ; Coleman paid a
fee to participate in the race, and , a s noted above , Otese ’ s corporate represen tative
acknowled ged that r acers paid to participate in races and t hat Otese also made money by selling concessions to the race spectators. Austin v. Kroger Tex

. , L.P. , 465 S.W.3d 193, 202 (Tex. 2015) (defining a n invitee as a person who enters another ’ s p roperty wi t h the owner ’ s knowledge and for the mutu al benefit of both )

. Furt her , Coleman produced evidence sufficient to raise a fact q uestion about
whether oil spilled on to one of the race lanes because of the earlier acci dent and
about whether Otese ’ s e mpl oyees ’ attemp ted clean

- up , the equipment provi ded for
the clean

- up , and the training provided on how to clean accident s ites were al l25 inadequa te
. See Pipkin , 383 S.W .3d at 672 (holdi ng that pl aintiff produced evidence
that contradicted defendant gr ocer y store ’ s eviden ce that it had completely c leaned up
the spill that p laintiff alle ged was a dangerous condition)

. Coleman also produced
evidence sufficient to raise a genuine issue of m ate rial fac t about whether Otese actually knew or should have know n ab out the l i quid s pill and the employees ’ failure
to ameliorate it : Coleman testifi ed that Otese ’ s em ployees attempted to clean the race lane after the earlier accident and that the emplo yees swept and sprinkled cat litter on the track

. Further, the ev iden ce that O t ese em ployees , aware of the spill, a ttemp t e d to clean up the scene in front of onlookers , including Coleman, and then continued with
the next race , ra ise d a fact question about whether their efforts created the appear ance that the racing lan e had been ma d e safe

. Accordingly , Coleman produced evidence
sufficient to raise a fact issu e about whether Otese owed him a duty with respect to the oil spill. Coleman also produced evide nce , s ufficient to raise a question of fact , about
whether the fir e

- figh ting e q u ipment t hat Otese undertook to have on the premises

— evidence relevant to Otese ’ s awareness o f the fire risk presented by the activities of
the tra ck

— w as inadequate and the empl oyees it hired for t hat job were no n

profession als and in adequate for th e task

. See Wal

- Mart Stores Tex

. , LLC v. Bishop , 553 S.W.3d 648, 666 (Tex. App.

— Dalla s 2018 ) (holding that there was leg ally sufficient evidence from which a jury could have drawn the inference that an employee ’ s moving and shelving products without knowl edge o f or train ing on how26 to stock and shelve merchandise in that section of the stor e proximately caused a box
to fall on and injure the plaintiff) , judgm ’ t aff ’ d as modified by agr. , No. 18

- 0702 (Tex. Sept. 7, 2018 ) ( order ) (granting the parties ’ agreed motio n to grant the petition, modify the judgment to release surety , and affirm the j udgment as modifie d) ; Scroggs v. Am. Airlines, Inc. , 150 S.W.3d 256, 263 (Tex. App.

— Dallas 2004, n o pet.) (stating that

a landowner ’ s duty to make the pre mises safe may g ive ri s e to liab ility when a person is injur ed by o r as a contemporaneous result of a ne gligent activity on the premises) ; see also THI of Tex

. at Lubbock I, LLC v. Perea , 329 S.W.3d 548 , 5 73 (Tex. App.

— Amarillo 2010, pet. denied) (recognizing that an empl oyer “ is l iable fo r negligent hiring, supervision, or retention when proof is presented that the emplo yer hired an incompeten t or unfit employee whom it knew or, by the exercise of reaso nable care, should have known was incompetent or unfit, thereby cr eati ng an un r e asonable risk
of ha rm to others ” ) . Because Coleman produced sufficient eviden ce to raise a fact question on the issue of duty, the trial court erred by grantin g no

- evi dence su mmary judgment on this ground

. 4 See Tex. R. Civ. P. 166a( i). The tri al court f urther e rred by

4 Thi s court has n o t directl y addressed whether a no

- evidence summary judgment motion may neg ate a negligence c laim by challenging the existence of a duty; whether a duty exists is a question of law, but the court makes this determination based on the circumsta nces of the c a se. See Austin v. Kroger Tex., L.P. , 465 S.W.3d 193, 209 (Tex. 2015) ( poi nt ing out that whe ther a duty exists is a question of law for the court); McCracken v. MonoSol RX, LL C , No. 02

- 12

- 00151

- CV, 2014 WL 4937997, at *8 (Tex. App.

— Fort Wort h Oct. 2, 20 1 4 , no pet.) (m em. op.) ( stating that a no

- evidence summary judgment moti on “ m ust be based on a n alleged lack of evidence ” and thus no

- evidence summary judgment ma y not be based on a pure question of law ) ; see also Brookshire Katy Drainage Dist . v. Lily Ga r d

ens, LLC ,27 granting traditional summary judgment on this ground because , viewing the evidence in the light most favorable to Coleman , Ote se ’ s evidence on duty did not nega te duty
as a matter of law

. See Tex. R. Civ. P. 166a(c).
C olema n also produ c e d evidence of specific acts or omissions constituting a breach of duty and of c ausation sufficient to defeat the no

- e vidence and traditional summary judgment grounds challengin g those elements . A s noted above, Colem an produced evidence that the ea rlier a c cident res ulted in a n oil spill on the track , that
Otese f ai led t o adequately clean up the oil s pill from the e arlier accident , that
Coleman ’ s truck lost traction when it drove over the spot where the inadequately

cleaned oil spill occur red , that O tese d i d not have adequate and proper firefightin g equipment , and that it s attempt s to extinguish the fire resulting from Coleman ’ s accident were in adequate and prolonged the t ime in w hich Coleman was exposed to
357 S.W.3d 661, 673 (Tex. App.

— Houston [1st Dist.] 2011, no p et.) (Keyes, J., disse nting from the court ’ s denial of en banc reconsideration) (discussing the problem
w

ith granting a no

- evidence summary judgment on a purely legal issu e)

. C ompare B oerjan v. Rodriguez , 436 S.W.3d 307, 311 (Tex. 2014) (holdin g

— without d iscus sion of whether n o

- evidence summary judgment s may challenge questions of law

— that the defendants did not owe the plaintiffs a duty, that the plaintiffs ’ negligence cl aims ther efo r e failed as a matter of law, and that the court of appeal s ’ s reversal of the trial court ’ s no

- evidence summary judgment was therefore improper), with Franks v. Roades , 310 S.W.3 d 615, 621 (Tex. App.

— Corpus Christi

– Edinburg 2010, no pet.) (st ating, in
c a s e addressing whether attorney had duty under disciplinary rules of profe ssional conduct to seek guardianship for client, that whether a duty existed was a question of law, “ whi ch is inappropriate for a no

- evidence summary judgment ” ). Co leman does not ar g u e that a no

- evidence summary judgment may not be granted on the question of dut y . Assuming that duty may be challenged in a no

- evidence summary judgment motion, Coleman produc ed sufficient evidence to defeat Otese ’ s right to summary judgment.28 the fire resulting from the accident

. Accor dingly , no

- evidenc e summary judgment on these gro un ds was improper. W hil e Ote se produ ced evidence contradicti ng Coleman ’ s evidence, that evidence did not ne gate Coleman ’ s evidence as a matter of
law

. Rather, i t merely raised f ac t questions

. The tr a ditio nal su m m ary judgme nt on these grounds was therefore also erroneous . T he t ri al court e r red b y granting no

- evidence and tr aditional summary judgment on Coleman ’ s negligence cla im. See T ex. R. Civ. P. 16 6a(c), ( i) ; Fr ost Nat ’ l
Bank , 315 S.W.3d at 5 08 ; Smith , 288 S

. W .3d at 424

. W e sustai n this par t of Col eman ’ s

seco nd issue.
B. C oleman failed to raise a fact question on gr oss negligence.
Otese a sserted in its no

- evidence summary judgment motion that Coleman ’ s gross neglig ence claim fai led because C ol em an had no ev i d ence that O tese acted in a grossly negligent mann er. 5
T o p rove gros s negligence, the ev idence must show that (1) from the a ctor ’ s standpoint, the act or omission in q uestion involve d “ an extreme degree of risk,

5 O tese fra m e d this summary judgment ground as specifically addressing Colem a n ’ s gros s negli gen ce claim, but it asserted both that th ere was no evidence that it acted in a grossly negligent manner and a lso that t here was no eviden ce that it acted
w

ith mali ce . I t thus c hal l eng ed not only gross negligence as a basis for awa rd ing
ex emplary damages but also malice a s an alternative basi s . See Tex. Civ. Prac. & Rem. C od e Ann. § 4 1.00 3 ( providing t hat “ exemplary damages may be a war ded only if the claim ant proves b y clear and convincing evidence that the harm with respect to whi ch the c laimant seeks re covery of exempla ry damages results from : (1) fraud; (2) malice; or ( 3) gross neg lige nc e ” )

. Howeve r, this summary judgment ground was irrelevant because Col em an ’ s third a m ended peti tio n did not plead malice

.29 considering th e proba bility and m a gnit ude of the potenti al harm to others ” and ( 2) the

actor had “ actua l subjec tive awaren ess of the r isk involved but neverthe less proceed [ed] in conscious indifference of the ri ghts and safety or welfare of others. ” LaRue v. Chief Oi l & Gas, L.L.C. , 167 S

. W.3 d 866, 879 (Tex. A pp.

— Fort Worth 2005,

no pet.) ; see also T e x. Civ. P rac. & Rem. Code An n. § 41.001 (11) (de fining “ gross negligen ce ” for purposes of chapter governing damages in ci vil cases )

. Coleman ’ s summary judgment response did no t discu ss gross neg l i g ence and
did not d irect the trial co urt to any evidence that O te se ’ s alleged act s or omission s involve d an extreme degree of risk or that Otese had subject ive awareness of the risk
but neverthe less proceed ed in conscio us indifference of Cole man ’ s righ ts a n d safety
or welfar e . Accordingly, the tri al court corr ectly gra nted no

- evidence summary judgment on Coleman ’ s gross negligence claim

. See Tex. R. Civ. P. 166 a( i) ; Smith , 288 S .W.3d at 424

. We overr ule th e rema inder of Col e ma n ’ s second i s s ue. Conclusion Having sustaine d C oleman ’ s first issue and ha ving susta ined in p art and reversed in part his second issue , we rev erse the trial court ’ s summary judgment on
Col e man ’ s negligence claim , affirm the summa r y j ud gment on Coleman ’ s g ross neglig e n c e claim, and rem and this case f or further proce edings.30 /s/ Mike Wallach Mi ke Wallach Ju stice
D elivered: January 23, 2020