Affirmed as Modified, and Majority and Concurring and Dissenting Opinions

filed December 17, 2019.

In The 

Fourteenth Court of Appeals 

NO. 14-18-00083-CV

JAMES CONSTRUCTION GROUP, LLC, AND PRIMORIS SERVICES 

CORPORATION, Appellants/Cross-Appellees 

V.

WESTLAKE CHEMICAL CORPORATION, Appellee/Cross-Appellant 

On Appeal from the 334th District Court 

Harris County, Texas 

Trial Court Cause No. 2014-72717 

C O N C U R R I N G A N D D I S S E N T I N G O P I N I O N 

I agree with the court’s analysis of appellants’ issues and of appellee/crossappellant Westlake Chemical Corporation’s second cross-issue. I respectfully 

dissent as to the majority’s analysis of Westlake Chemical’s first cross-issue. 

In sustaining the first cross-issue, the majority holds that Westlake Chemical’s 

agreement that “no claim shall be made by [Westlake Chemical] against [James 
2

Construction Group, LLC] for [consequential] damages” is not a promise not to 

assert any claim for consequential damages. This court should not sustain the first 

cross-issue on this basis because, under the agreement’s plain language, Westlake 

Chemical promised not to assert any claim against James for consequential damages 

and despite this agreement, Westlake Chemical did so. 

The No-Claims Provision 

In its first cross-issue, Westlake Chemical challenges the trial court’s money 

judgment in favor of James based on Westlake Chemical’s breach of section 26 of 

the construction contract. Westlake Chemical asserts that this section constitutes a 

waiver of any claim for consequential damages rather than a covenant not to assert 

any claim for consequential damages. To analyze this argument, the court must 

determine the meaning and effect of section 26. This provision, entitled “Waiver of 

Consequential Damages,” contains the following language:

26 WAIVER OF CONSEQUENTIAL DAMAGES

Neither [Westlake Chemical] nor [James] shall be liable to the other for 

any consequential, incidental, indirect or punitive damages of any kind 

or character, including, but not limited to, loss of use, loss of profit, loss 

of revenue, loss of productivity, loss of efficiency, or acceleration costs 

whenever arising under this Contract or as a result of, relating to or in 

connection with the Work and no claim shall be made by either 

[Westlake Chemical] or [James] against the other for such damages

REGARDLESS OF WHETHER SUCH CLAIM IS BASED OR 

CLAIMED TO BE BASED ON NEGLIGENCE OR STRICT 

LIABILITY (INCLUDING SOLE, JOINT, ACTIVE, PASSIVE, 

CONCURRENT NEGLIGENCE OR GROSS NEGLIGENCE) OR 

ANY OTHER THEORY OF LEGAL LIABILITY, AND 

INCLUDING PRE-EXISTING CONDITIONS BUT EXCLUDING 

GROSS NEGLIGENCE AND WILLFUL MISCONDUCT.1

 

1 Shading added; capitalization and bold in original.
3

The dispute centers on an independent clause (shaded above) consisting of 

key words of mutual prohibition: “[n]o claim shall be made . . . for [consequential, 

incidental, indirect or punitive] damages . . .” (the “No-Claims Provision”). 

Westlake Chemical asserts the parties intended section 26 — including the NoClaims Provision — merely to prevent the parties from recovering on a claim for 

consequential, incidental, indirect or punitive damages regardless of the legal theory 

of liability asserted. But the words the parties chose do not support that reading. 

The No-Claims Provision covers something else.

In section 26, the parties contract for mutual protection from future claims in 

two ways. In the first clause, they limit any future liability for consequential 

damages by agreeing that neither will be liable to the other for them (the “Limitationof-Liability Provision”). In the second clause, they agree that neither will assert a 

claim for consequential damages against the other. Then, they emphasize that these 

two protections — the Limitation-of-Liability Provision and the No-Claims 

Provision — apply regardless of the nature of the claims giving rise to the 

consequential damages. The majority emphasizes the first clause and ignores the 

second, effectively erasing the No-Claims Provision from the contract.2

 

Though the majority acknowledges the parties agreed that they “will not be 

liable to each other for certain types of damages and will make no claims against the 

other for those proscribed damages regardless of the legal theory offered in support 

of them,”3

 the majority concludes that Westlake Chemical did not breach the NoClaims Provision by asserting a claim seeking to recover consequential damages. 

 

2

See Moayedi v. Interstate 35/Chisam Road, L.P., 438 S.W.3d 1, 7 (Tex. 2014) (stating that 

“[c]ourts must examine and consider the entire writing in an effort to harmonize and give effect 

to all the provisions of the contract so that none will be rendered meaningless”) (emphasis in 

original, internal quotations omitted).

3 Ante at 64. 
4

Contract-Interpretation Principles 

In construing a contract, this court’s primary concern is to ascertain and give 

effect to the intentions of the parties as expressed in the contract.4

 We must examine 

and consider the entire contract in an effort to harmonize and give effect to all the 

contract’s provisions so that none will be rendered meaningless.

5

 Whether a contract 

is ambiguous presents a question of law for the court.6 A contract is ambiguous 

when its meaning is uncertain and doubtful or is reasonably susceptible to more than 

one interpretation.7 But, when the wording of a written contract can be given a 

certain or definite legal meaning or interpretation, the law deems it unambiguous, 

and we must construe it as a matter of law.8

 We cannot rewrite the contract by 

ignoring terms or by adding to the contract’s language under the guise of 

interpretation.9

 And, especially important for today’s case, in construing the 

contract’s terms, the court must not interpret distinct undertakings to mean the same 

thing.10 

Contracting parties often take a belt-and-suspenders approach to managing 

risks of claims. For example, they may contract for a waiver of consequential 

damages, a limitation of liability, and a no-claims provision. All three provisions 

offer measures of protection in varying degrees, though the legal effects and 

application may differ depending on circumstances. That is why in determining a 

 

4 Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998). 

5

See Moayedi, 438 S.W.3d at 7.

6 Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996). 

7

Id. 

8 Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex. 2003).

9

See id. at 162.

10 See Moayedi, 438 S.W.3d at 7.
5

contract’s meaning, courts must focus on the contract’s wording to decide the nature 

and scope of the undertaking. 11

The Meaning of the No-Claims Provision

Section 26 contains two separate clauses, and each provides the parties a 

distinct form of mutual protection. The Limitation-of-Liability Provision limits 

liability in the event a certain kind of claim is made while the No-Claims Provision 

supplies a contractual shield against even the assertion of such a claim. Depending 

on the facts presented, one provision could afford more or less protection than the 

other. Because the provisions perform discrete functions and protect in different 

ways, the law does not view them as interchangeable.12

 Nor should this court.13 Yet, 

the majority essentially finds that the two separate clauses in section 26 operate as a 

waiver and nothing more. 

Waiving a right is not the same as releasing a right, though the two actions 

can serve as functional equivalents when the right is a claim. But neither a waiver 

nor a release is the functional equivalent of a promise not to assert a claim.14

 Waiver 

and release provide parties who contract for them with an affirmative defense to 

liability in the event a claim is made while an agreement not to make a claim is a 

contractual undertaking that carries with it the potential for an affirmative claim for 

relief by the non-breaching party in the event of breach.15

 

 

11 See Kelley-Coppedge, Inc., 980 S.W.2d at 464.

12 See National Property Holdings, L.P. v. Westergren, 453 S.W.3d 419, 428–29 (Tex. 2015) (per 

curiam). 

13 See id. 

14 See id. 

15 See id.
6

Recognizing that section 26’s first clause — the Limitation-of-Liability 

Provision — would provide greater value if parties were incentivized to honor it, 

James and Westlake Chemical structured their agreement so that the covenant in the 

second clause — the No-Claims Provision — would reinforce the first clause by 

prohibiting parties from even making claims that fell within the Limitation-ofLiability Provision. By adding this covenant, the parties gave teeth to the first clause. 

Defending against claims (even ones that lack merit) can add costs and disrupt

business. In crafting section 26, the parties sought to avoid the time, expense, and 

inconvenience of having to respond to claims for damages that fell within the 

Limitation-of-Liability Provision. The No-Claims Provision protects against these 

unwelcome possibilities. Without it, the parties would lack a mechanism to deter the 

making of claims even if the responding party ultimately would prevail in any 

ensuing litigation based on the Limitation-of-Liability Provision. To guard against 

significant costs that could accompany the making of claims falling within the 

Limitation-of-Liability Provision, the parties entered into a separate covenant – the 

No-Claims Provision. Because the No-Claims Provision requires ongoing 

performance, it affords the parties the important right to enforce a violation of this 

covenant through a breach-of-contract claim. By not giving meaning to this essential 

term, the court deprives sophisticated parties of an important contractual right. 

The majority loses its way in treating the No-Claims Provision as part and 

parcel of the Limitation-of-Liability Provision.16 Conflating the two provisions 

spoils the contractual analysis. This court should recognize the discrete purpose and 

function of the No-Claims Provision. Binding precedent demands it. 

 

16 Ante at 59–66.
7

In National Property Holdings, L.P. v. Westergren,

17 the Supreme Court of 

Texas in explaining the difference between a release and a covenant not to sue, 

underscored the importance of focusing on contractual language when determining 

the nature of the agreement.18 Westlake Chemical argues that the No-Claims 

Provision functions as a defense to a claim of consequential damages but cannot 

serve as a basis for a breach-of-contract claim. James, relying on Westergren’s

holding, likens the No-Claims Provision to a covenant not to sue.19 

The majority concludes that section 26 does not contain a categorical covenant 

not to sue.20

 A promise not to assert claims for certain types of damages is not the 

same as a covenant not to sue, which is a promise not to sue for any damages. 

Despite this difference, the relationship between a limitation of liability as to 

consequential damages and a covenant not to assert claims seeking consequential 

damages mirrors the relationship between a release of claims and a covenant not to 

sue on those claims.21

 The No-Claims Provision is a categorical agreement not to 

assert claims for consequential damages. Indeed, a more clear-cut statement could 

hardly be imagined. Yet, defying the words of section 26, the majority reasons that 

 

17 453 S.W.3d 419, 428–29 (Tex. 2015) (per curiam) 

18 See id. 

19 James cites Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764, 765 n.1 (Tex. 1964) (reciting 

the parties’ agreement “not to sue, make claim, or institute any action or proceeding directly or 

indirectly against” the other “to recover damages of any kind or character”); Felix v. Prosperity 

Bank, No. 01-14-00997-CV, 2015 WL 9242048, at *1 (Tex. App.—Houston [1st Dist.] Dec. 17, 

2015, no pet.) (mem. op.) (bank agreement with depositor provided that, if depositor failed to meet 

certain conditions, depositor “cannot assert a claim against us on any items in that statement, and 

the loss will be entirely yours”); Pape Equip. Co. v. I.C.S., Inc., 737 S.W.2d 397, 400–01 (Tex. 

App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.) (agreement “not to sue, claim or make claims 

or institute any action or proceeding directly or indirectly against” other “to recover damages of 

any kind or character”).

20 Ante at 63–66.

21 Westergren, 453 S.W.3d at 428–29.
8

the “no claim shall be made” language shows “the parties’ intent to relinquish any 

claim they may ever have for consequential damages arising under the construction 

contract” rather than an agreement that no claim shall be made.22 The No-Claims 

Provision means what it says. 

Though the majority cites four cases in support of its analysis, in none of these 

cases does the court address whether language in a contract constitutes a covenant 

not to assert a claim.23

 The two Texas cases do not involve contracts with a promise 

not to assert a claim.24

 Though the two out-of-state cases did involve contractual 

language that included a covenant not to make a claim, no party in either case 

asserted a breach of that covenant, so neither court addressed whether the language 

included a covenant not to make a claim.25

 

Rather than give the words in the second clause their plain meaning, the 

majority looks past them, fixing its focus on section 26’s first clause. Even though 

the parties used no waiver language in either of section 26’s two clauses, the majority 

states that “The parties used language one would reasonably expect to be used in 

drafting a waiver of damages clause.”26 The parties used limitation-of-liability 

language in the first clause and “no claims shall be made” language in the second. 

 

22 Ante at 64. The provision limits liability on other types of damages as well, but only 

consequential damages are at issue in today’s case.

23 Ante at 64.

24 See Le Norman Operating LLC v. Chalker Energy Partners III, LLC, 547 S.W.3d 27, 32 (Tex. 

App.—Houston [1st Dist.] 2017, pet. granted) (contract providing “neither party shall be liable to 

the other party” for consequential damages was waiver); MEMC Pasadena, Inc. v. Riddle Power, 

LLC, 472 S.W.3d 379, 385 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (same).

25 See Perez-Gurri Corp. v. McLeod, 238 So.3d 347, 350–52 (Fla. Ct. App. 2017); Barhorst v. 

Thatcher, 144 N.E.2d 272, 274–77 (Ohio Ct. App. 1956). 

26 Ante at 64. 
9

Just as Westergren teaches that a release and a covenant not to sue are different 

legal animals with different legal consequences, this court should recognize that an 

agreement to limit liability for consequential damages differs from an agreement not 

to make a claim for consequential damages.27 The former provides an affirmative 

defense in the event a claim is made while the latter is an enforceable promise not to 

assert a claim.28

 If a party breaks that promise by making a claim, as Westlake 

Chemical did in this case, the law affords the other party (James) a means to seek 

the benefit of its bargain — through a breach-of-contract claim for damages suffered 

as a result of the breach of the No-Claims Provision.29

The majority makes the puzzling assessment that “no claim shall be made” 

does not plainly express an intent that no claim shall be made.30 Instead of construing 

these words to mean what they say, the majority says they mean the same thing as 

the first clause in section 26. The words in the No-Claims Provision are not 

extraneous or unimportant. Texas law requires that the court give these words effect 

and not render them meaningless.31 Yet, in the majority’s analysis, the words in the 

No-Claims Provision do no work at all. 

 Calling the No-Claims Provision a “small clause,” the majority neither gives 

it effect nor cites authority that would support the notion that a court may ignore or 

diminish a contractual promise because the parties chose to express their undertaking 

concisely. In Texas jurisprudence and practice, “small clauses” can carry big 

 

27 Westergren, 453 S.W.3d at 428–29.

28 See id. 

29 See id.

30 Ante at 65.

31 See Moayedi, 438 S.W.3d at 7(stating that “[c]ourts must examine and consider the entire 

writing in an effort to harmonize and give effect to all the provisions of the contract so that none 

will be rendered meaningless”) (emphasis in original, internal quotations omitted).
10

obligations. It is the meaning, not the quantity, of words that matters. If anything, 

the No-Claims Provision draws force from its concentrated expression. Legalwriting experts remind us that verbosity obscures substance.32

 The drafter’s goal is 

not to be wordy but to be understood, and concise clauses enhance understanding. 

Consider the force and clarity of concisely worded covenants such as “Rent shall be 

paid.” or “Goods shall be delivered.” Like these “small clauses,” the No-Claims 

Provision expresses clear meaning. Instead of denouncing it as a “small clause” that 

adds nothing to the first clause, this court should honor the substance of the parties’

contractual choices. 

Today’s holding crushes the contracting parties’ legitimate expectations, 

invites parties to sue on claims they promised not to bring, and robs James of the 

benefit of its bargain. Today’s decision adversely impacts the public, too, because 

allowing parties to bring claims they promised not to assert wastes judicial resources 

and adds unnecessary delay and other costs to our justice system. 

Conclusion 

The No-Claims Provision differs in content and purpose from the Limitationof-Liability Provision. The parties bargained for this added protection. They used a 

separate clause to express it and they did so in clear terms. The words in the No-

 

32 See, e.g., Stephen V. Armstrong & Timothy P. Terrell, Thinking Like a Writer, A Lawyer’s 

Guide to Effective Writing and Editing 251 (3d ed. 2003) (“Verbosity wastes the reader’s time, but 

it also does another kind of damage: It obscures your substance with a surface fuzz of verbal clutter. 

. . The fewer the words, the greater the impact.”); Bryan A. Garner, The Elements of Legal Style

55 (Oxford University Press 1991) (“Ideally, legal writing is taut.”); Adam L. Rosman, Happy 

Warriors Against Herein: Ten Rules for Creating Better Legal Documents, 17 The Scribes Journal 

of Legal Writing 46, 48 (2017) (noting that “being concise” is one of the “keys to graceful, 

effective prose.”); Gerald Lebovits, Legal-Writing Myths, 16 The Scribes Journal of Legal Writing

113, 117 (2015) (noting the need for short and concise legal writing); Mark Cooney, Style is 

Substance: Collected Cases Showing Whit It Matters, 14 The Scribes Journal of Legal Writing 1, 

8 (explaining how verbosity hurts the writer’s cause) (2011).
11

Claims Provision create a distinct and independent contractual duty to make no 

claims for consequential damages. The majority could and should give the NoClaims Provision meaning, yet it fails to do so.33 By refusing to recognize the 

covenant in the No-Claims Provision, the majority undermines the supreme court’s 

Westergren precedent. Rather than overrule Westlake Chemical’s first cross-issue 

based on the majority’s interpretation of the No-Claims Provision, the court should 

hold that under section 26’s unambiguous language, Westlake Chemical promised 

not to assert any consequential-damages claims against James. 

 

 /s/ Kem Thompson Frost 

 Chief Justice 

Panel consists of Chief Justice Frost and Justices Jewell and Bourliot (Jewell, J., 

majority). 

 

33 See Moayedi, 438 S.W.3d at 7.