### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00120- CV

Buc-ee’ s, Ltd., a/k /a Bu c-e e’s, Inc., Appellant

v. John J. H ribek, Appellee

F ROM TH E DISTRI CT COURT O F LEE CO UNTY, 21ST JUDICI AL DISTRICT NO. 13,0 50, H ONO RAB LE TERRY L. F LENNIK EN, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

B u c - e e ’ s , L td

. , a

/k /a B u c -ee ’s, I nc., appea ls from the take- nothing summary judg me n t on its claims ag ainst J ohn J

. Hribek. Concluding that Hribek’ s rele ase of claims ag ainst Buc -ee ’s

was not invalidated as a matter of law by the Older Worker Be nefit Protection Act and that there is

a g enuine issue of materia l fac t reg arding whether the rele ase was knowing and voluntary , we reve rse the summary

judgme nt and re mand for f urther pr ocee dings c onsistent with thi s opinion.
Buc -ee ’s is a company that owns and manag es convenie nce stores. Hribek manag ed

one of Buc -ee ’s stores. On October 5, 2004, he m et wi th Buc -ee ’s assistant to the president, Pete Alex ander

. By the end of t hat m eeting , Hribek agr ee d to resig n eff ective October 26, 2004, and sig ned a “ Full and F inal Release ” of c laims ag ainst Buc -ee ’s in which he a g ree d to indemnify
Buc -ee ’s and hold it harmless from all claims that could be broug ht in Hribek’ s name ag ainst Buc

ee’ s. The Relea se also states that Hr ibek ag ree d not to file for unemploy ment or any other benef

itfrom a state or fede ral ag ency . The next day , howeve r, Hribek attempted to revoke the Release —in

writing —pursuant to the Older Worker Be nefit Protection Act (OWBPA)

. See 29 U.S.C.A. § 626(f) (1)( G) (W es t 2 0 0 8). Buc -ee ’s never theless paid Hribek consistent with the terms of the Release , and Hr ibek re tained those funds.

Hribek there afte r filed sever al claims. He filed for unemploy ment benef

its and filed suit, alleg ing that Buc -ee ’s discriminated ag ainst him beca use of his disability (a surg ically repa ired hernia ) and his ag e (46 y ear s old), and that Buc -ee ’s reta liated ag ainst him i n v i o lation of the
Family Medica l L eave Act bec ause he took time off for the surg ery . Buc-e e’ s fi led a counter claim alleg ing that Hribek damag ed it by brea ching the Release

. Buc -ee ’s then remove d the case to fede ral court, which g rante d a take- nothing
summary judgme nt on all of Hribek’ s claims ag ainst Buc -ee ’s. The fede ral court rema nded Buc -ee ’s
counter claim to state court. Hribek moved for summary judgme nt on Buc -ee ’s claims, contending that t h e re l ea s e wa s invalid beca use it did not comply with the OWBPA, beca use it was not

en t er ed knowing ly and voluntarily , and beca use it was signe d under duress. Buc -ee ’s moved for
summary judgme nt, contending that Hribek ratified the Release by acc epting and reta in i ng the pay ments made by Buc -ee ’s. The trial court g rante d Hribek’ s motion for summary judgme nt

on Buc -ee ’s counter claims without specify ing a basi s . Bu c-ee’s motion for summary judgme nt

1
was de nied.

The cler k’s re co rd i n dicates that Buc -ee ’s motion for summary judgme nt was denied 1 separ ately from the order g ranting Hribek’ s motion for summary judgme nt. Buc-e e’ s ex p ressly appea led from the or der g ranting Hribek’ s motion. 2We revie w summary ju d g ments de novo. Joe v. Two Thirt y Nine Joint Venture , 1 4 5 S.W .3d 150, 156 (Tex. 2004). The standards for revie wing a summary judgme n t ar e we l l established: (1) the movant must demonstrate that there is no g enuine issue of materia l fac t and that it is entitled to judgme nt as a matter of law; (2) in deciding whether a disputed issue of materia l fac t exis ts that would prec lude summary judgme nt, we take all evidence fa v o ra b l e to the non-movant

as true; and (3) we i n d u lge ever y rea sonable infere nce and resolve any doubts in favor of the
non-movant. Nixon v. Mr. Prop. Mgmt. Co. , 69 0 S.W .2d 546, 548-49 (Tex. 1985). When the trial court’s order does not specify the g rounds for g ranting summary judgme nt, the appellate court
must aff irm if any of the theories prese nted in the summary judgme nt motion have merit. Provident Life & Acc ident Ins. Co. v. Knott , 128 S.W .3d 211, 216 (Tex. 2003). When, as in this ca use, both parties move for summary judgme nt and the trial court g rants one motion and denies the other, the revie wing court should revie w the summa ry j u d gment evidenc e prese nted by both sides and deter mine all questions prese nted and rende r the judgm en t t h e trial court should have rende red.
Texas W orkers’ Comp. Comm ’n v. P a tient Advoc ates , 136 S.W .3d 643, 648 (Tex. 2004); Tobin
v. Garc ia , 316 S.W .2d 396, 400 (Tex. 1958). 2

Hribek arg

ues that the Buc -ee ’s motion is outside the scope of our revie w beca use Buc -ee ’s 2 did not appea l from the denial of its motion, but specifie d only its desire to appea l the order g ranting Hribek’ s motion for summary judgme nt. The rul es o f ap p el late proce dure do not require that an appellant expli citly s t at e ev ery aspec t of i ts appea l in its notice of appea l. See Tex. R. App. P

. 25.1(d). Buc -ee ’s motion for summary judgme nt is part of the rec ord on ap p ea l

. Although the orde r d en y i n g Buc -ee ’s motion was not made part of the rec ord, the trial court’s docket sheet reve als that Buc -ee ’s motion was denied on the same date that Hribek’ s motion was gra nted—the date specifie d in Buc -ee ’s notice of appea l as the dat e o f t h e order Buc -ee ’s soug ht to appea l. Fur ther, the judgme nt g ranting Hribek’ s mot i o n states that the court there by dismiss es Buc -ee ’s claims and disposes of all parties and claims. Buc -ee ’s motion, premised on the idea that Hribek ratified the terms of t h e R el ea s e b y acc epting its benef its and is there fore bound by its terms, 3Hribek leans heavily on the application of the OWBPA to provide a basis for his

revoc ation of the Release

. Howeve r, the OWBPA does not apply to ever y aspec t of Buc -ee ’s motion for summary judgme nt. Hribek made claims other than ag e discrimination which wer e purportedly

cover ed by the Re l ease . The OWBPA, howeve r, is an amendment to the Ag e Discrimination in Employ ment Act that g overns the validity of waiver s executed without EEOC supervision

. B la k e n e y

v. Lomas Info. Sys. , 879 F. Supp. 645, 647-48 (N.D. Tex. 1995). I ts provisions reg arding the requisites o f waiver s g overn ag e discrimination claims, but do not aff ect other ty

pes of claims broug ht by persons older than 40 y ear s of ag e. W illiams v. Phillips Petroleum Co. , 23 F.3d 930, 936 (5th Cir. 1994). Even if the OWBPA rende red the Release invalid as to Hribek’ s ag e discrimination claims, it doe s not bear on the validity of his w aiver of his othe r claims. The district c ourt err ed if it g rante d summary judgme nt based on the failure of the releas e of non-ag e dis crimination claims
to comply with the OWBPA. Fur ther, Hribek’ s arg ument that he revoke d the Release under the
OWBPA d o es n o t support the summary judgme nt that the Release was not binding on him as to claims other than a g e discrimination claims. See id

.

Fa ct i ssues demonstrate error in the s ummary judgmen t i f i t wa s based on the l ack of knowing and vo l u n tary waiver

. Courts should examine the following fac tors when assessing whether a wa iver wa s knowing and voluntary :

is incompatible with the theory in Hribek’ s motion that the R elea se does not bind him. Given the nature of t he mot ions and the long -standing prec edent that, in a case in which competing moti ons for summary judgme nt wer e filed, a court revie wing the g rant of one motion must also review the denial of the competing motion, see Texas W orkers’ Comp. Comm’n v. Patient Advoc ates , 136 S.W .3d 643, 648 (Tex. 2004), we conclude that Buc-ee’s notice of appea l of the g rant of Hribek’ s motion i s sufficient to re quire re view of the denial of B uc-e e’s c ompeting motion. 4(1) the plaintiff’s educa tion and business experience , (2) the amount o f t i m e the plaintiff had possession of or acc ess to the ag ree ment befor e sig ning it, (3) the role of [t he] plaintiff in deciding the ter m s o f t h e agre ement, (4) the clar ity of the ag ree ment, (5) whether the plaintiff was repr esente d by or consulted with an attorney , and ( 6 ) wh et h er considera tion g iven i n exchang e for the waiver ex cee ds employ ee benef its to which the employ ee w as alre ady entitled by

contra ct or law

.
Smith v. Amedisys Inc. , 298 F.3d 434, 441 (5th Cir. 2002) (quoting O’Hare v. Global Natural Res. , 898 F.2d 1015, 1017 (5th Cir. 1990)). There was evidenc e favor ing both sides on many o f these fac tors. Alt h o u gh Hr i b ek was not an employ ment lawy er, he had some colleg e education and experience manag ing not only the Buc -ee ’s store but also a Su p er S Fo o d Store. There was no evidenc e that he was incapa ble of rea ding or understanding the waiver , particul ar l y t h e p arts wher e he promised not to file for unemploy ment benef

its or file suit ag ainst Buc -ee ’s. Although he signe d the waiver at the same meeting it was proposed and neg otiated, there was no evidenc e he was require d to do so. Alt h o u gh Hr i b ek did not rec all whether he rea d the waiver , he testified at his deposition that he was not denied the opportu n i t y to rea d it. There is evidenc e that Hribek participa ted in de ciding the terms of the ag ree ment beca use there is e vidence that terms rela ting to his compensation wer e adde d at his reque st. Whil e the waiver could be clea rer in some aspec ts, it plai n l y s t at es that Hribek will indemnify and hold harmless Buc -ee ’s “fr om any and all claims, demands, actions and cause s of action

. . . wh i ch may here afte r be asser ted by any person, firm, attorney or corpor ation whomsoever claiming by , throug h or under J ohn Hribek.” I t also states that Hribek “will not file a unemploy ment EEOC, ADA or TWC claim or any other claim with any state

or fede ral ag ency whatsoeve r” in connec tion with Buc -ee ’s. Hribek did not consult an attorney , and there is no evidenc e that Hribek rec eived more compensa tion than was alre ady due him at the time

5of the ne g otiation—assuming that he was entitled to r emain employ ed throug h October 26, 2004. There i s at l ea s t a g enuine issue of materia l fac t reg arding whether Hribek’ s waiver was made knowing ly

and voluntarily

. Simi larly , there is a g enuine issue of materia l fac t reg arding whether Hribek signe d the rele ase under duress. Dure ss require s proof of a threa t by a party to do something it has no leg al rig ht to do that destroy s the fre e ag ency of the party to whom it is direc ted, overc omes the threa tened party ’s will, and cause s the threa tened party to do that which he would not otherwise do and was not leg ally bound to do. Sheshunoff v. Sheshunoff , 172 S.W .3d 686, 703 n.12 (Tex. App.—Austin 2005, pet. d en i ed ) (citing Matelski v. Matelski , 840 S.W .2d 124, 129 (Tex. App.—For t Worth 1992,

no writ)). The restra int cause d by such threa t must be imminent and such that the person to w hom it is direc ted has no prese nt means of protec tion. Id

. Hribek’ s deposition testimony provides some evidenc e that, althoug h he may have felt pre ssure to resig n, he was not thr eate ned improperly

. He also testified that he was not forc ed to sign the rele ase, althoug h he did fee l rushed. This evidenc e

reve als at least a g enuine fac t issue reg arding whether Hribek signe d the rele ase under duress. The
summary judgme nt in favor of

Hribek is not supported by the re cord a

nd the law.
Buc -ee ’s co n t en d s by its cross-a ppeal that the trial court err ed by deny ing its

m o t i o n for summary judgme nt premised on the theory that, reg ardle ss of whether the Release

was voidable, Hribek ratified the Releas e by reta ining the pay ments Buc -ee ’s made and,
conseque ntly , Hribek brea ched the Release by suing Buc -ee ’s. On appea l, Buc -ee ’s reque sts that this
Court “re verse the judgme nt and either (1) rende r judgme nt for Buc -ee ’s and rema nd the case to the trial court with instructions to deter mine and awa

rd Buc -ee ’s damag es, or (2) rema nd the case with

6instructions to the t ri al court to g rant Buc -ee ’s motion for summary judgme nt and deter mine and

awa rd B uc-e e’s da

mag es.”
We conclude that the rules of appellate proce dure prohibit us from providing either form of requested relief unde r the proc edura l posture of this case . Texas Rule of Appellate Procedur e 44.1(b) provides that “[t] h e co u rt may not order a separ ate trial solely on unliquidated damag es if liability is contested.” See Redman Homes, Inc. v. Ivy , 920 S.W .2d 664, 669 (Tex. 1996). Hribek contests his liability by challeng ing whether he is bound by the Release

. Buc -ee ’s states in its brie f that it “has not had a n opportunity

to prove its damag es.” The Release does not contain a liquidated damag es cla u s e. I n fact, the Release does not contain a clause contemplating the
conseque nces of brea ch by either party

. The Release did not specify the total amount that Buc -ee ’s

was to pay Hribek, calling for “3 wee ks pay @ $585 per wk, plus vacation hours, and bonus for Sept.
& part Oct. (throug h Oct. 26).” Although Buc -ee ’s transfe rre d funds to Hribek purporting to satisfy the vaca t i o n an d b o n u s o bliga tions, it is not clea r from the rec ord that mere return of the funds transfe rre d encompa sses the full scope of Buc -ee ’s damag es. Buc -ee ’s damag es from any brea ch are unliquidated and, there fore , we cannot rende r judgme nt as to liability and rema nd solely for trial on those damag es. Be cause the rules require us to rema nd the liability issue as well, an y opinion on liability with respe ct to ratifica tion would be advisory

. We are not permitted t o i ssue advisory opinions. See South Tex . W ater Auth. v. Lomas , 223 S.W .3d 304, 307 (Tex. 2007). 3

Buc -ee ’s cites cases in which c ourts reve rsed judg ments, considere d liability issues, and 3 rema nded for further p ro cee dings, but neither involved a liability deter mination coupled with a rema nd solely of unliquidated damag es issues. See City of Pasadena v. Genne dy , 125 S.W .3d 687, 702 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (re versing j u d gm ent and rema nding with instructions to rende r particula r judgme nt and consider claims for attorney ’s fee s ); see also

7We reve rse the summary judgme nt g rante d in fav or of Hribek on Buc -ee ’s

counter claim. We rema

nd this cause f

or fur ther proc eeding s.

G. Alan Waldrop, Just ice
Be fore Chief J ustice Jones, J ustices Waldrop and He nson; Concurring Opinion by

J ustice He nson Reverse d and Remande d Filed: De cembe r 31, 2009

Texas Dep’ t of

Pub. Safety v. Canon , 547 S.W .2d 302, 304 (Tex. Civ. App.—Dallas 1976, writ ref ’d n.r.e.) (re versing and rema nding with instructions to t ri al co u rt to g rant motion for summary judgme nt on cer tain issues and to deter

mine leng th and terms of license suspension). Unliquidated attorney ’s fee s are not considere d unliquidated damag es for purposes of Rule 44.1(b). Brown v. Traylor , 210 S.W .3d 648, 659 n.15 (Tex. App.—Houston [1s t Dist.] 2006, no pet.). 8