Saratoga Resources, Inc. v. Baker , 2001 Tex. App. LEXIS 7234 ( 2001 )

SCOTT BRISTER, Justice,

dissenting.

I agree with the majority except for one point. When parties in a continuing business relationship have a dispute, they may amend their contract prospectively to resolve the problem as to future transactions. The majority holds that doing so automatically waives any prior claims, even if the amendment does not purport to settle or release them. I disagree, and because this holding affects the judgment we should render, I respectfully dissent.

I agree with the majority that, during the period between Saratoga’s sale to Prime and Prime’s quitclaim back to Sara-toga, Prime had the authority to settle or waive the overcharge claim against Baker. The majority holds that, because the Normalization Agreement between Prime and Baker was prospective only, it must have been a waiver of the claim to amounts previously overcharged. But the Normalization Agreement contains no waiver or release of preexisting claims — they are simply not addressed.

A “release” is a writing in which an obligation owed to one party is discharged immediately or on the occurrence of a condition. National Union Fire Ins. Co. v. Insurance Co. of N. Am., 955 S.W.2d 120, 127 (Tex.App.—Houston [14th Dist.] 1997), aff'd sub nom. Keck, Mahin & Cate v. National Union Fire Ins. Co., 20 S.W.3d 692 (Tex.2000). In order to effectively release a claim in Texas, an instrument must mention the claim; any claims not clearly stated are not discharged. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 938 (Tex.1991). By failing to hint that a prior claim was being released, the Normalization Agreement clearly did not do so.

I agree with the majority that Baker’s tardy response to the audit does not make Saratoga’s refund incontestable. At the time, Prime alone had the right to make such a claim. But as Prime never released such claims, and later reconveyed the right to Saratoga, I believe Saratoga is entitled to a decision on the merits of its refund claim.

I believe there is a fact question whether Saratoga is entitled to a refund. While an agreement to agree in the future is unenforceable, Baker’s subsequent agreement with Prime to amend the allocation of expenses exactly as Saratoga says the parties intended is some evidence that the parties reached an enforceable agreement, with certain details to be settled later. See Scott v. Ingle Bros. Pac., Inc., 489 S.W.2d 554 (Tex.1972). Thus, I would reverse and remand to the trial court for further proceedings.