Opinion issued December 15, 2020

In The 

## Court of Appeals
For The 

## First District of Texas

———————————— NO. 01
- 20
- 00251
- CV

——————————— JUAN LOWE , Appella nt

V. FLORA B. WATSON , Appell e e

On Appeal from the 157th District Court

Harris County, Texas Trial Court Ca se No. 2019
- 01974

MEMORANDUM OPINION
This case arises from a n automobile accident between Flora Watson and Juan Lowe, Sr. Lowe sued Watson for negligence and causing Lowe’s injuries to his knee

. Watson moved for summary judgment on the affirmative defense of release, which the trial court granted. Lowe moved for new trial and reconsideration and the trial2

court denied the motion. In two issues , Lowe argues that the trial court erred by granting Watson’s summary

- judgment motion. We reverse and remand

. Background One November evening, Lowe was traveling west along I

- 10 in Louisiana
with his wife , Tricia, and their two young children , Gabriella and Juan , Jr

. W atson

rear
- ended Lowe ’ s car . The accident damage d Lowe’s car and injured his knee. Lowe contacted Progressive Insurance Company, Watson’s insurance carrier , to file
claims for his family

. About a month after the accident, Lowe and his wife signed three settlement
release s on December 7, 2017

. All three settlement s were identical, except for the

name d family member and the amount . The F irst R elease provides in part : This Release is given by Juan Lowe Sr. and Tricia Lowe , individually and as parent(s) or guardian(s) of Gabriella Lowe a minor (hereinafter “Releasing Party/Parties”), who for and in consideration of payment of Two Hundred and Fifty Dollars ($250.00) , the receipt and sufficiency of which is hereby acknowledge d as well as the promise to pay reasonable and necessary medical and/or dental expenses incurred by Releasing Party/Parties for the minor ’ s injury related treatment within 30 days following 12

- 07

- 2017, up to a maximum of Three Hundred Dollars ($300.00) . .

. . The S econd R elease provides in part :
This Release is given by Juan Lowe Sr. and Tricia Lowe , individually and as parent(s) or guardian(s) of Juan Lowe Jr[.] a minor (hereinafter “Releasing Party/Parties”), who for and in consideration of payment of Two Hundred and Fifty Dollars ($250.00) , the receipt and sufficiency of which is hereby acknowledged as well as the promise to pay reasonable and necessary medical and/or dental expenses incurred by3

Releasing Party/Parties for the minor ’ s injury related t reatment within 30 days following 12

- 07

- 2017, up to a maximum of Three Hundred Dollars ($300.00) . . . .
The Third Release provides in part : This Release is given by Juan Lowe Sr. and Tricia Lowe (hereinafter

“ Releasing Party/Parties ” ), who for and in consideration of payment of Five Hundred Dollars ($500.00) , the receipt and sufficiency of which is hereby acknowledged as well as the promise to pay reasonable and necessary medical and/or dental expenses incurred by Releasing Party/Part ies for injury related treatment within 30 days following 12/07/2017, up to a maximum of Three Hundred Dollars ($300.00 ) . . .

. Lowe and Tricia signed a ll three settlement releases. Later, Progressive sent four checks payable to Lowe and Tricia

. 1 The first check for $250 listed LOWE, GABRIELLA below the claim number . The second check for $250 listed “ LOWE JR, JUAN .” The third check for $500 listed “ LOWE,
TRICIA. ” T he fourth check for $951.26 listed “ LOWE SR, JUAN. ” Lowe and Tricia deposited the first t hree checks. They did not, however, deposit the fourth check. Lowe rejected the check because his medical bills for the orthopedic specialist for his knee exceeded Progressive ’ s $951.26 settlement offer. A dispute arose. Lowe explained that he never executed a settlement release
for his own personal injuries. Instead, he only executed settlement releases on behalf

1 Progressive also issued two checks directly to the body shop to cover the cost of repairs to Lowe’s vehicle. The checks were made payable to Joe Meyers Collision and list ed “LOWE SR, JUAN” below the claim number.4

of his children and Tricia for a derivative loss

- of

- consortium claim

. Progressive told
Lowe that the T hird R elease released all his claims . Dissatisfied with Progressive’s response, Lowe retained counsel and sued Watson for negligence in his individual capacity

. Watson answer ed, generally denying Lowe’s allegation s and plead ing
affirmative defense s of accord and satisfaction an d payment

. Watson moved for summary judgment , arguing that Lowe settled his claims with Progressive for $500 , signed a settlement release, and endorsed and cashed his
settlement check. 2 In sum , Watson argued that Progressive released Lowe from all
claims related to the car accident because Lowe signed the Third Release and cashed the $500 check. Watson attached the Third Release and four checks as summary
judgment evidence

. In response, Lowe first argued that he signed the Third Release in his capacity
as Tricia ’ s husband to settle his derivative loss

- of

- consortium claims and the other

two releases in his capacity as the parent and guardian of Gabriella and Juan Jr. He
contended that the Third Release “ was not intended to release his own separate personal injury claims in his individual capacity. ” Second, Lowe argued that release contains a latent ambiguity or, in the alternative, a mutual mistake

. He contended that t he settlement checks contradicted

2 Although Watson’s motion was titled “D efendant’s Motion to Enforce Settlement and to Dismiss with Prejudice,” the parties and the trial court treated this motion as a summary
-

judgment motion.5

the plain language of the rel ease, raising a genuine issue of material fact on whether the parties intended the Third Release to cover Lowe ’ s separate personal injury claims in his individual capacity. Lowe asserted that extrinsic evidence was
necessary to show the parties ’ true inten t . Progressive issued multiple checks under
the same claim number which were “ not contemplated by the plain language of the [Third Release]” because “ the one $500.00 check [Progressive] issued . . . plainly
lists ‘ LOWE, TRICIA ’” as the only claimant.
Thi rd, Lowe argued that Watson ’ s failure to plead release as an affirmative defense support s his cont e ntion that Lowe did not release his claims against Progressive

. Lowe attached responsive evidence, including six checks, his deposition testimony, three rele ase agreements , and the motor vehicle crash report

. The trial court granted Watson’s motion for summary judgment and dismiss ed
the case. Lowe then filed a motion for new trial and reconsideration, which the trial
court denied. Lowe appealed. Summary Judgment In his first issue, Lowe contends that the trial court erred in granting summary judgment because the Third Release was latently ambiguous as to what claims he intended to release as part of his settlement with Progressive. He did not intend to
release his negligence claim

. Instead, he only intended to settle his derivative loss

of

- consortium claim as Tricia’s husband. And, therefore, Lowe contends that the6

objective circumstances surrounding the execution of the Third Release raise s fact issues about the parties’ true intent , and, as a result , the parties did not enter into a
valid contract to release his negligence claims.
A. Standard of r eview
We review the trial court’s ruling on a motion for summary judgment de

novo. Barbara Techs. Corp. v. State Farm Lloyds , 589 S.W.3d 806, 811 (Tex. 2019)

. To prevail on a summary

- judgment motion, a movant must prove that there is no genuine issue of material fact and that they are entitled to judgment as a matter of
law. See T EX

. R. C IV

. P. 166a(c) ; Hillis v. McCall , 602 S.W.3d 436, 439

– 40 (Tex. 2020)

. Once the movant meets this burden, the burden shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment. See Lujan v. Navistar, Inc. , 555 S.W.3d 79, 84 (Tex. 2018) . The evidence raises a genuine issue
of fact if “ reasonable and fair

- minded jurors could differ in their conclusions ” given all the summary

-

judgment evidence. Goodyear Tire & Rubber Co. v. Mayes , 236 S.W.3d 754, 755 (Tex. 2007) (per curiam)

. In reviewing the grounds
for summary judgment , we review the evidence in the light most favorable to the
nonmovant, “ crediting favorable evidence if reasonable jurors could do so, and disregarding contrary evidence unless reasonable jurors could not. ” See Mann Frankfor t Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009)

. “[ W ] e indulge every reasonable inference and resolve any doubts in the7

nonmovant ’ s favor. ” Helix Energy Sols. Group, Inc. v. Gold , 522 S.W.3d 427, 431 (Tex. 2017)

. B. Applicable law
A release is a written contract “ which provides that a duty or obligation owed

to one party to the release is discharged immediately or upon the occurrence of a condition. ” Henry v. Masson , 333 S.W.3d 825, 844 (Tex. App.

— Houston [1st Dist.] 2010, no pet.) ; see also Schlumberger Tech. Corp. v. Swanson , 959 S.W.2d 171, 178 (Tex. 1997) (“[A] a release is a contract ”)

. A release of a claim “operates to extinguish the claim . . . and is an absolute bar to any right of action on the released
matter.” Dresser Indus., Inc. v. Page Petroleum, Inc. , 853 S.W.2d 505, 508 (Tex. 1993)

. Like any other contract, a release is subject to the rules of contract
construction. Henry , 333 S.W.3d at 844

. In construing a release, our primary task is

to determine the true intentions of the parties as expressed in the language of the
agreement

. Barrow

- Shaver Res. Co. v. Carrizo Oil & Gas, Inc. , 590 S.W.3d 471, 479 (Tex. 2019) . “If we determine that the contract’s language can be given a certain or definite legal me aning or interpretation, then the contract is not ambiguous, and
we will construe it as a matter of law.” El Paso Field Servs., L.P. v. MasTec N. Am.,
Inc. , 389 S.W.3d 802, 806 (Tex. 2012)

. If, however, the language of a release is subject to two or more r easonable interpretations, then the release is ambiguous,8

raising a genuine issue of material fact on the parties’ intent. Nat’l Union Fire Ins.
Co. of Pittsburgh, PA v. CBI Indus., Inc. , 907 S.W.2d 517, 520 (Tex. 1995)

. “Whether a contract is ambiguous is a question of law for the court to decide by looking at the contract as a whole in light of the circumstances present when the
contract was entered.” Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd. , 574 S.W.3d 882, 889 (Tex. 2019)

. We co nstrue categorical releases narrowly. Gallagher Headquarters Ranch Dev., Ltd. v. City of San Antonio , 303 S.W.3d 700, 702 (Tex. 2010).
C. Analysis To effectively release a claim in Texas, the release must “‘mention’ the claim
to be released.” Victoria Bank & Tr. Co. v. Brady , 811 S.W.2d 931, 938 (Tex. 1991)

. “[A]ny claims not clearly within the subject matter of the release are not discharged.”
Id

. Lowe asserts that the Third Release does not identify the claim s to be released

. Watson responds that the Third Release bearing Lowe’s handwritten name next to a signature and date establishes that the release was “directed to [Lowe] and his
claim.” T he Third Release provides: This Release is given by Juan Lowe Sr. and Tricia Lowe (hereinafter

“ Releasing Party/Parties ” ), who for and in consideration of payment of Five Hundred Dollars ($500.00) , the receipt and sufficiency of which is hereby acknowledged as well as the promise to pay reasonable and necessary medical and/or dental expenses incurred by Releasing Party/Parties for injury related treatment within 30 days following 12/07/2017, up to a maximum of Three Hundred Dollars ($300.00) , do(es) hereby for himself/herself/themsel ves and his/her/their heirs,9

executors, administrators, administrators, successors, and assigns, RELEASE, ACQUIT, AND FOREVER DISCHARGE Matthew Watson and Flora Watson (hereinafter “ Released Party/Parties ” ) and his/her/their heirs, executors, administrator s, successors, assigns, agents, representatives, employers, employees, servants, and all other persons, firms, corporations, and organizations in privity with the Released Party/Parties, from any and all claims liabilities, obligations, demands or actions which the Releasing Party/Parties has/have now, or may have in the future, or for damages, costs, interest, fees or compensation of any kind on account of or in any way growing out of an accident which occurred on or about 11

- 26

- 17 at or near Houston, TX. Although the broad language purports to release all past and future claims against
Watson arising from the accident , that does not end our inquiry. Importantly, there is no express waiver of negligence or loss

- of

- consortium claims

. Cf. , e.g. , Shannon

v. Mem ’ l Drive Presbyterian Church U.S. , 476 S.W.3d 612, 631

– 32 (Tex. App.

— Houston [14th Dist.] 2015, pet. denied) (holding that ambiguous categorical agreement that “released all claims” did not release fraudulent

- inducement claims because agreement lacked “express waiver” of those claims). In interpreting whether a release of “any and all claims . . . arising from or related to the events and transactions” in a series of condemnation actions applied to a dispute over land use, the Texas Supreme Court found the kind of categorical language here ambiguous and remanded for factfinding about the scope of the
release. Gallagher , 303 S.W.3d at 701

– 02. W e find Victoria Bank & Trust Company v. Brady , 811 S.W.2d 931 (Tex. 1991), similarly helpful in concluding that the release language is ambiguous

. The Cattle Company and Victoria Bank had engaged10

in two separate but related transactions, one involving a $150,000 loan in which The Cattle Company was a co
- obligee and one involving the extension of a line of credit.
Id . at 933

– 34. The Bank conditioned the line of credit on The Cattle Company’s
agreement to assume its partner’s preexisting debt. Id

. When a dispute arose over
the loan , the partner sued the Bank to enjoin the foreclosure of his property that
secured the transaction

. Id . at 934. The parties settled, and The Cattle Company agreed to release the Bank from “any and all claims and causes of action . . . directly or indirectly attributable to the above described loan transaction.” Id . at 938. When The Cattle Company sued the Bank over the line of credit, the Bank argued that The Cattle Company had released it from all claims. Id

. After reviewing the settlement
agreement, the Texas Supreme C ourt determined that the “above described loan transaction” referred only to the initial loan. Id

. The loan settlement did not release
the bank from c laims arising from the line of credit because the settlement did not
mention it

. Id . at 939.
Unlike the release in Victoria , the Third Release does not list a specific
transaction but it does include a claim number. A court may consider the
circumstances of the release to determine whether an ambiguity about the parties’
intentions exists and admit extraneous evidence to make this determination. URI,
Inc. v. Kleberg Cnty. , 543 S.W.3d 755, 765

– 66 (Tex. 2018). Lowe argues that the claim number at the top of the Third Release does not distinguish his negligence11

claim from his derivative loss

- of

- consortium claim as Tricia’s husband

— or from any of the other claims he filed on behalf of Gabriella and Juan, Jr

. — because the claim number on the Third Release is the same claim number appearing on the First
Release and the Second Release

. T hus, a latent ambiguity exists.
A latent ambiguity arises when a contract which is “ unambiguous on its face is applied to the subject matter with which it deals and an ambiguity appears by
reason of some collateral matter

. ” URI , 543 S.W.3d at 765. If a
latent ambiguity arises from this application, parol evidence is admissible to
determine the true intention of the parties as expressed in the agreement. 3 Nat’l
Union Fire Ins. , 907 S.W.2d at 520

. The classic example of a latent ambiguity is a

contract that calls for goods to be delivered to the “green house on Pecan Street”
when there are, in fact, two or more green houses on Pecan Street. See, e.g., 11
Williston on Contracts § 33.40 (4th ed.). Lowe’s responsive evidence shows that Progressive issued three separate
releases under the same claim number. Progressive issued four different checks payable to Lowe and Tricia. All four checks list the same claim number that appears
on the three releases. Other than the payment amount s , the only distinguishing
feature on each check is the name below the claim number.

3 Although this is not an issue on appeal, we note that both parties relied on extraneous evidence a nd neither party objected.12

For example, Progressive issued a $250 check with the name of “LOWE,
GABRIELLA” below the claim number. This $250 check corresponds with the First Release, which lists her name and $250 as the amount of consideration. Similarly, Progressive issued a $250 check with the name of “LOWE JR, JUAN” below the claim number. This $250 check corresponds with the Second Release, which lists
his name and $250 as the amount of consideration. The check for $500, however, only identifies “LOWE, TRICIA , even though the Third Release identifies Tricia
and Lowe. Finally, Progressive also issued a check for $951.26 , naming “LOWE SR, JUAN” below the claim number. None of the releases in the record list this amount as consideration. Notably, the record does not show a fourth release relating to the amount of this check. Nor does the check appear to be cashed or deposited. 4
A ccording to his deposition testimony, Lowe testified that he rejected the check that Progressive had issued to him because the cost of his orthopedic treatment exceeded
the amount of the check. He further testified, “I signed a release for my wife. I did

n ot sign a release for myself.” Viewing this evidence in the light most favorable to Lowe, the Third Release is susceptible to two reasonable interpretations: (1) a release of only Lowe’s loss

- of

consortium claim and (2) a release both of his claims for l oss of consortium and

4 We note that the check is endorsed, but there is no information from a bank showing that it was deposited or otherwise processed by a bank, unlike the other three checks.13

negligence. We therefore conclude that a latent ambiguity exists as to which claims
Lowe intended to release or discharge. See, e.g. , RSUI Indem. Co. v. The Lynd Co. , 466 S.W.3d 113, 120 (Tex. 2015) (“[W]e conclude that the endorsement reasonably can be read to support either party ’ s proposed construction and is therefore ambiguous.”) ; Milner v. Milner , 361 S.W.3d 615, 619

– 23 (Tex. 2012) (mediated settlement agreement was ambiguous when it was unclear whether transfer of
part nership was conditioned on consent of other partners) ; Exxon Corp. v. W. Tex. Gathering Co. , 868 S.W.2d 299, 302 (Tex. 1993) ( natural gas purchase contract was ambiguous because take

- or
- pay provision was unclear about whether takes were actual or hypotheti cal) ; Sage St. Assocs. v. Northdale Constr. Co. , 863 S.W.2d 438, 445 (Tex. 1993) ( construction contracts were ambiguous because both set out different prices and included provisions “purporting to override the other” contract)

. Because a latent ambiguity e xists, we hold that the trial court erred in granting Watson’s motion for summary judgment because a genuine issue of material fact
exists about the parties’ intent. See Coker v. Coker , 650 S.W.2d 391, 394 (Tex. 1983) ( “ When a contract contains an ambiguity, the granting of a motion for summary judgment is improper because the interpretation of the instrument becomes a fact issue.”).14

W e need not address Lowe’s remaining arguments because we sustain his first
issue

. See T EX

. R. A PP

. P. 47.1. 5
Conclusion We reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

Sarah Beth Landau Justice

Panel consists of Justices Goodman , Landau , and Adams

.

5 W e also note that Watson argues that Lowe’s accep tance and negotiation of the $500 check constitutes a release of all his claims against Watson. In essence, Watson claims an affirmative defense of accord and satisfaction, which “rests upon a new contract, express or implied, in which the parties agree t o the discharge of the existing obligation by means of the lesser payment tendered and accepted.” Jenkins
v. Henry C. Beck Co., 449 S.W.2d 454, 455 (Tex. 1969). W e need not determine whether accord and satisfaction applies because n either Watson nor Lowe contends that they had executed a new contract. See id

.