Addicks Services, Inc. v. GGP-Bridgeland, LP, et a

REVISED MARCH 8, 2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
February 8, 2010
No. 09-20155
Charles R. Fulbruge III
Clerk
ADDICKS SERVICES, INC.,
Plaintiff - Appellant
v.
GGP-BRIDGELAND, LP, formerly known as Rouse-Houston, LP;
BRIDGELAND GP, LLC; SAFECO INSURANCE COMPANY OF AMERICA,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
Before KING, GARZA, and HAYNES, Circuit Judges.
KING, Circuit Judge:
In this contract action, plaintiff–appellant is a contractor seeking damages
for extra work and delay costs incurred performing land improvement for a
residential development in Harris County, Texas. The district court granted
summary judgment to defendants–appellees, holding that plaintiff–appellant’s
claims were barred by waivers and releases it executed monthly to receive
progress payments. We affirm.
I. BACKGROUND
No. 09-20155
GGP-Bridgeland, LP (“Bridgeland”)1 is the owner of Bridgeland, a
residential development in Harris County, Texas. Addicks Services, Inc.
(“Addicks”), submitted a bid to perform excavation and grading work on the
approximately 500-acre site. On July 20, 2004, Addicks and Bridgeland
executed a Standard Form of Agreement Between Owner and Contractor (the
“Contract”). Addicks’s role was to perform “cut and fill” services, which involve
excavating or “cutting” the land on the site to create lakes and other scenic
features. The excavated dirt or “spoil” produced from the excavation would then
be spread or “filled” across the development to create a uniform elevation.
Under the original terms of the Contract, Addicks was required to cut and fill
slightly more than 2 million cubic yards of dirt in 150 calendar days; it would
receive $4,582,721.79 for this service.
The parties contemplated that the Contract would consist of multiple
documents. The Contract defines “Work” as “the work described in the Drawings
and Specifications . . . and any requirements set forth in any other Contract
Documents enumerated in Article XIX.” (Contract ¶ 1.1.) Article XIX is labeled
“Integration Clause” and consists of two provisions. The first provides that the
Contract, together with its attached exhibits and documents incorporated by
reference, is the entire agreement and supersedes prior negotiations,
representations, and agreements. (Contract ¶ 19.1.) It further contained a no-
oral-modification clause stating that the Contract could be amended or modified
only in written change order forms signed by both Addicks and Bridgeland. (Id.)
The second provision enumerated the documents constituting the Contract.2
1
Bridgeland GP, LLC, is the general partner of GGP-Bridgeland, LP. GGP-Bridgeland,
LP, secured a Release of Lien Bond from Safeco Insurance Company of America, so that it
would be able to sell residential units within the Bridgeland development free and clear of any
liens. Unless otherwise specified, we refer to Appellees collectively as “Bridgeland.”
2
Those documents listed were:
a) This Agreement and Special Conditions of Agreement;
2
No. 09-20155
(Contract ¶ 19.2.)
Two articles in the Contract dealt specifically with changes and
modifications to the work Addicks was to perform under the Contract. Addicks
was required to notify Bridgeland of any “claim[] for additional compensation,
extra work, delay, extensions of time, or loss, injury or damages” within ten days
of its occurrence. (Contract ¶ 10.1.) Addicks was then required to submit a
detailed claim within thirty days and to submit a change order proposal on
request of Bridgeland. (Contract ¶ 10.2.) Addicks agreed to perform changes
and modifications to the scope of work under the Contract that were requested
by Bridgeland in writing; payment for such changes was governed by the
Contract’s schedule or by the cost plus a 5% markup. (Contract ¶ 12.1.) If the
parties disagreed over a particular change, Addicks was required to proceed with
the modification and prepare a change order proposal, which was “subject to full
audit, review and approval by [Bridgeland].” (Id.)
Article VIII of the Contract governed payment to Addicks. The Contract
specified that Addicks would perform the requested work for $4,582,721.79
(Contract ¶ 8.1), but it also provided for monthly progress payments (Contract
¶ 8.2). To receive a progress payment, the Contract contemplated that Addicks
would submit a written application detailing the work performed to date; the
application would be accompanied by an executed lien waiver that would release
b) Exhibits to this Agreement;
c) Performance, Payment, and other Bonds identified;
d) Invitation to Bidders;
e) Instructions to Bidders;
f) Notice to Proceed;
g) Standard and Special Specifications;
h) Construction Drawings;
i) Storm Water Pollution Prevention Plan[;]
j) Addenda;
k) All Change Orders and written modifications that amend or supplement the
Contract Documents pursuant to the Contract Documents;
l) All documents incorporated by reference into the Contract Documents.
(Contract ¶ 19.2.)
3
No. 09-20155
Addicks’s mechanic’s and materialman’s lien on the project. (Id.) Blank lien
waiver forms were attached to the Contract. The relevant form was entitled
“Waiver and Release of Lien upon Progress Payment” (the “Interim Waiver”),
and provides, in relevant part:
[Addicks], in consideration of the sum of $__________, hereby
waives and releases its lien and right to claim a lien for labor,
services, or materials furnished through __________ (date of this
waiver) under contract with __________ on the job of __________
(Owner) to the following property: __________ (Name and Address
of Project). This waiver and release does not cover any retention or
labor, services or materials furnished after the date specified.
Any and all . . . subcontractors . . . have been paid and
satisfied in full, and there are no outstanding claims of any
character arising out of, or related to, the undersigned’s activities
on, or improvements to, the Project.
This Waiver constitutes a representation by [Addicks] that the
payment referenced above, once received, constitutes full and
complete payment for all work[3] performed, and all costs or
expenses incurred (including, but not limited to, costs for
supervision, field office overhead, home office overhead, interest on
capital, profit, and general conditions costs) relative to the work or
improvements at the Project as of the date of this Waiver, except for
the payment of retainage. [Addicks] specifically waives, quitclaims
and releases any claim for damages due to delay, hindrance,
interference, acceleration, inefficiencies or extra work, or any other
claim of any kind it may have . . . as of the date of this Waiver,
except as follows: _________________________________.
This Waiver is specifically made for the benefit of
[Bridgeland]. The amount of money set forth as due and owing in
the immediately preceding Waiver dated _____, 20__, has been
received, and is deemed paid in full.
3
Addicks argues that it is unclear whether the word “work” in the Interim Waiver form
refers to the term “Work” defined by paragraph 1.1 of the Contract. We address this
contention below.
4
No. 09-20155
(Contract Ex. E.)4
Addicks received notice to proceed with the project in August 2004.
Addicks claims that, subsequent to commencing work, a number of factors
hindered its timely performance, including Bridgeland’s requests for additional
work, inclement weather, and site accessibility problems. Pursuant to the
mechanisms in the Contract, Addicks made numerous requests for information
regarding work, for extension of time, and for change orders to reflect the
additional work performed and to adjust the price of the Contract accordingly.
In some of the change order requests, Addicks included the following language:
“This modification constitutes compensation in full on behalf of [Addicks] for
direct costs only which are attributable to the changes ordered herein. [Addicks]
[r]eserves all rights to time extension, time related costs and any indirect cost[s]
that result or flow from the changes ordered herein.” Addicks’s records reflect
that during the relevant time frame, Bridgeland approved an extension of twelve
calendar days and sixteen change orders5 that increased the price of the
Contract by $1,528,052.82 to a total of $6,110,774.61.6 The project was certified
complete on November 25, 2005, approximately eleven months behind schedule.
Addicks claims that many of the claims it submitted to Bridgeland for approval
were paid in part or not at all.
While the project was ongoing and many of these requests for change
4
A second form, entitled “Waiver and Release of Lien upon Final Payment” (the “Final
Waiver”) has not been executed by Addicks.
5
The record is deficient with regard to the change orders, as we could locate only six in
scattered locations. These are change orders 5, 8, and 11–14. Change order 8 was executed
three weeks prior to change order 5, and change orders 11–13 were all executed on the same
day.
6
Addicks’s payment applications reflect that sixteen change orders were executed prior
to November 25, 2006. The parties executed a partial settlement in June 2006 that involved
a seventeenth change order. That settlement does not affect our decision, and we therefore do
not consider it.
5
No. 09-20155
orders were pending, Addicks submitted applications for progress payments and
executed Interim Waivers. Addicks asserts that Bridgeland would not permit
it to include claims for work on these payment applications unless the work had
been reduced to a change order. Each of the fifteen Interim Waivers that
appears in the record was executed on the twenty-fifth day of the month, with
only one exception,7 from August 2004 through November 2005.8 Each Interim
Waiver corresponds to a payment application submitted by Addicks, and the
amount requested in each payment application is typically identical to the
amount cited in the corresponding Interim Waiver.9 Despite the presence of a
blank space for exceptions to Addicks’s assertion that it “specifically waive[d],
quitclaim[ed], and release[d] . . . any and all claims,” Addicks did not list any
claims—for extra work, delay damages, or otherwise—in any of the fifteen
Interim Waivers it executed.
After the project was certified complete on November 25, 2005, Addicks
and Bridgeland continued to dispute whether further payment was due. In
7
The May 2005 Interim Waiver was executed on the thirty-first of that month.
8
An additional Interim Waiver, absent from the record, was apparently executed in
October 2005, but Bridgeland could not locate it during this litigation. The accounts receivable
printout Addicks submitted reflects that Bridgeland paid the full amount of $256,907.05 that
Addicks requested in the corresponding payment application.
9
There were six occasions when the amounts did not precisely align. On three
occasions, the amount Addicks requested and the amount recited paid by the Interim Waiver
differed by no more than $1.00 (November 2004, April 2005, and September 2005). For June
2005, Addicks requested payment of $271,291.72, the June 2005 Interim Waiver recited
payment of $287,932.35, and Addicks reported $275,198.31 received. For August 2005,
Addicks’s accounts receivable printout reflects that it initially requested $287,845.80, which
is identical to the amount recited paid by the August 2005 Interim Waiver. However, the
corresponding payment application, printed on September 29, 2005, requests only $126,285.50,
which is the amount Addicks reported receiving from Bridgeland on October 20, 2005. The
discrepancies in both June and August 2005 appear to have been addressed in a downward
adjustment of $179,204.32 that Addicks made on September 25, 2005, corresponding with its
September 2005 payment application. For November 2005, Addicks requested $60,729.83,
which it reported receiving, while the November 2005 Interim Waiver recites payment of
$59,749.00.
6
No. 09-20155
February 2006, Addicks filed a mechanic’s and materialman’s lien against the
Bridgeland property in the amount of $2,257,394.97. The parties reached a
partial settlement through negotiations in June 2006. In October 2006, Addicks
filed a petition in state court, claiming over $3 million in damages; it has since
reduced its request for relief to $2,160,957.00.10 Addicks claimed entitlement to
these damages under theories of breach of contract, quantum meruit, and
promissory estoppel. Bridgeland answered on October 30, 2006,11 and removed
the case, based on diversity jurisdiction, to federal district court on November
3, 2006. Bridgeland later filed a counterclaim against Addicks for breach of
contract and promissory estoppel.12 Pursuant to 28 U.S.C. § 636(c), the parties
consented to have all proceedings, including trial and judgment, proceed before
a magistrate judge.
After discovery had been completed, Bridgeland moved for partial
summary judgment on Addicks’s claims for work performed prior to November
25, 2005—the date Addicks last executed an Interim Waiver. In response to
Bridgeland’s argument that Addicks had waived and released its claims for extra
work and other costs prior to that date, Addicks asserted four defenses against
applying the Interim Waivers to bar its claims: (1) ambiguity; (2) waiver; (3)
estoppel; and (4) mutual mistake. After a hearing, the district court granted
Bridgeland’s motion, holding that “Addicks’s claims for damages incurred prior
to November 25, 2005 [we]re barred by release.” Addicks Servs., Inc. v. GGP-
10
Addicks arrives at this value by adding $552,600 for “added scope of work”;
$1,970,352 for “cost of loss of productivity”; $142,788 for “cost of escalated fuel prices”; and
$21,756 for “general conditions”; and subtracting $526,539 as “amount previously paid for
additional haul distance.” (Pl.’s Second Am. Compl. ¶ 11.) These damages are further broken
out into specific claims for work performed or damages incurred in a Joint Report on Disputed
Additional Work Items prepared jointly by Addicks and Bridgeland.
11
Safeco also filed an answer in November 2006.
12
Initially, Bridgeland also alleged fraud, but it has since dismissed that claim.
7
No. 09-20155
Bridgeland, L.P., No. H-06-3478, 2008 WL 4747343, at *6 (S.D. Tex. Oct. 27,
2008). On agreed motion by the parties, Addicks’s claims for work post-
November 25, 2005, were severed into a new action, and the district court
entered a final judgment dismissing all of Addicks’s claims with prejudice.
Addicks timely appealed.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291 because the district court
rendered a final judgment disposing of all the issues in the action. The district
court had original diversity jurisdiction over this removed action under 28 U.S.C.
§ 1332(a). We apply Texas substantive law and federal procedural law to this
diversity action. See Foradori v. Harris, 523 F.3d 477, 486 (5th Cir. 2008).
We review a grant of summary judgment de novo, applying the same
standard as the district court. First Am. Bank v. First Am. Transp. Title Ins.
Co., 585 F.3d 833, 836–37 (5th Cir. 2009). In reviewing a grant of summary
judgment, we examine the evidence in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). The movant bears the burden of demonstrating that summary judgment
is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary
judgment is appropriate “if the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” FED. R.
CIV. P. 56(c). A genuine issue of material fact exists when a jury could properly
enter a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Where the movant bears the burden of proof on an
affirmative defense such as release, the movant “‘must establish beyond
peradventure all of the essential elements of the defense to warrant judgment
in his favor.’” Chaplin v. NationsCredit Corp., 307 F.3d 368, 372 (5th Cir. 2002)
(ellipsis omitted) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.
8
No. 09-20155
1986)).
III. DISCUSSION
Addicks argues on appeal that the Interim Waivers should not be enforced
to bar its claims for extra work performed and damages incurred prior to
November 25, 2005. It asserts that summary judgment was inappropriate
because genuine issues of material fact exist in support of three distinct theories:
(1) ambiguity; (2) waiver; and (3) estoppel.13
A. Ambiguity
Addicks contends first that the Interim Waivers do not, by their terms,
apply to the present claims for extra work. Addicks argues alternatively that to
the extent the Interim Waivers do apply to bar such claims, they are ambiguous,
and the parties’ course of performance—that Bridgeland would not allow it to
include claims for extra work on its payment applications—presents a fact issue
defeating summary judgment. We conclude that the Interim Waivers extend
unambiguously to release Addicks’s claims for extra work and, accordingly, the
course of performance evidence may not be used to reinterpret the language of
release.
In Texas, whether a contract is ambiguous is a question of law. J.M.
Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003) (citing Coker v. Coker,
650 S.W.2d 391, 394 (Tex. 1983)). “A contract is unambiguous if it can be given
a definite or certain legal meaning. On the other hand, if the contract is subject
to two or more reasonable interpretations . . . the contract is ambiguous, creating
a fact issue on the parties’ intent.” Id. (citation omitted). “When parties
disagree over the meaning of an unambiguous contract, ‘[t]he intent of the
parties must be taken from the agreement itself, not from the parties’ present
interpretation, and the agreement must be enforced as it is written.’” Texas v.
13
The district court rejected Addicks’s claim that the parties were operating under a
mutual mistake; Addicks does not press that argument on appeal.
9
No. 09-20155
Am. Tobacco Co., 463 F.3d 399, 407 (5th Cir. 2006) (modification in original)
(quoting Purvis Oil Corp. v. Hillin, 890 S.W.2d 931, 935 (Tex. App.—El Paso
1994, no writ)). “The language in an agreement is to be given its plain
grammatical meaning unless to do so would defeat the parties’ intent.” DeWitt
County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 101 (Tex. 1999). “Courts
interpreting unambiguous contracts are confined to the four corners of the
document, and cannot look to extrinsic evidence to create an ambiguity.” Am.
Tobacco Co., 463 F.3d at 407 (citing Sun Oil Co. v. Madeley, 626 S.W.2d 726,
732–33 (Tex. 1982); Gen. Accident Ins. Co. v. Unity/Waterford–Fair Oaks, Ltd.,
288 F.3d 651, 657 (5th Cir. 2002)). Parol evidence—such as the parties’ course
of performance—may be used to ascertain the intent of the parties only if the
contract is first found to be ambiguous. Id.
1. Language of the Interim Waivers
We first address the argument that language in the Interim Waivers itself
gives rise to a reasonable interpretation that the Interim Waivers were not
intended to release claims for extra work. Addicks cites four particular
instances to support this interpretation: (1) the title “Waiver and Release of Lien
Upon Progress Payment”; (2) the recitation that the release is “in consideration
of” a sum certain; (3) the representation “that the payment referenced above,
once received, constitutes full and complete payment for all work performed”;
and (4) the statement that “[t]he amount of money set forth as due and owing in
the [Interim Waiver] has been received and is deemed paid in full.” Addicks
insists that these excerpts evidence a mutual understanding that it released its
lien and claims only to the extent of the amount specified in each Interim
Waiver.
The release contemplated by the Interim Waivers is comprehensive and
not susceptible to the limited interpretation urged by Addicks. With each
Interim Waiver executed, Addicks “waive[d] and release[d] its lien and right to
10
No. 09-20155
claim a lien for labor, services, or materials furnished through [the date of the
Interim Waiver].” Each Interim Waiver specifically excluded retention and
labor, services, and materials furnished after the date of execution. Each
Interim Waiver further provided that “the payment . . . , once received,
constitute[d] full and complete payment for all work performed, and all costs or
expenses incurred . . . except for the payment of retainage.” Addicks further
“specifically waive[d], quitclaim[ed] and release[d] any claim for damages due
to delay, hindrance, interference, acceleration, inefficiencies or extra work, or any
other claim of any kind it may have against [Bridgeland] . . . .” (emphasis
added). Although each Interim Waiver contained a blank space in which
Addicks could have excepted outstanding claims from the scope of the release,
Addicks never excepted any claims. At the bottom of each Interim Waiver,
Addicks attested that payment had been received and was deemed paid in full
as of the date of the Interim Waiver. The executed Interim Waivers thus
operated to release all of Addicks’s outstanding claims except for retainage
payments, with the progress payment serving as the consideration for the overall
release.
The words and phrases that Addicks excerpts from the Interim Waivers
do not yield a reasonable alternative interpretation. The word “upon” in the title
of the Interim Waivers simply refers to the timing of the release—upon receipt
of a progress payment, Addicks released all of its outstanding claims. Texas
courts regularly treat such language as referring to the timing of a release. See,
e.g., K.D.F. v. Rex, 878 S.W.2d 589, 591 (Tex. 1994) (using the words “release
upon” to discuss the condition that would effectuate the release); In re Bath
Junkie Franchise, Inc., 246 S.W.3d 356, 365 (Tex. App.—Beaumont 2008, no
pet.) (“[T]he parties intended to create a release upon each party’s performance
. . . .” (emphasis added)). Similarly, the fact that the Interim Waivers recited the
consideration offered for the release, stated that the release became effective
11
No. 09-20155
upon receipt of that consideration, and deemed the consideration received on the
date of execution merely clarifies details of contractual formality—namely, what
is being given in return for the release, and when does the release become
operative? This language does not weigh against the conclusion that the Interim
Waivers expressly released any and all claims up to the date of execution, with
Addicks failing to except any of its outstanding claims.
Addicks also argues that the language in the Interim Waivers stating that
the progress payment “constitutes full and complete payment for all work
performed” necessarily releases only its claims to “Work,”14 as defined by the
Contract. Because the defined term “Work” refers only to work specified in the
Contract and in change orders, Addicks maintains, the Interim Waivers may
reasonably be read not to release Addicks’s claims for extra work. We need not
and do not decide whether the lowercase “work” in the Interim Waivers is
synonymous with the uppercase “Work” defined elsewhere in the Contract
because the quoted language does not constitute the sole release language in the
Interim Waivers. Shortly following the quoted language, Addicks further agreed
that it “specifically waive[d], quitclaim[ed] and release[d] any claim for damages
due to delay, hindrance, interference, acceleration, inefficiencies or extra work,
or any other claim of any kind it may have.” Whether “work” refers only to
“Work” is irrelevant in light of the specific references to “extra work” and “any
other claim of any kind”—the latter language clearly and unambiguously
describes the broad scope of the claims Addicks released. Cf. J.M. Davidson, 128
S.W.3d at 229 (“[W]e 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. . . . [A]ll the provisions must be considered with
14
As discussed above, “Work” is defined by the Contract as “the work described in the
Drawings and Specifications . . . and any requirements set forth in any other Contract
Documents enumerated in [the Integration Clause],” including executed change orders.
12
No. 09-20155
reference to the whole instrument.”).
The language of the Interim Waivers also renders this case distinguishable
from Green International, Inc. v. Solis, 951 S.W.2d 384 (Tex. 1997), and Gilbane
Building Co. v. Two Turners Electric Co., No. 14-05-00908-CV, 2007 WL 582252
(Tex. App.—Houston [14th Dist.] Feb. 27, 2007, pet. denied) (mem. op.). In
Green International, a dispute arose between a contractor, Green International,
and a subcontractor, Solis, over work performed on three prison construction
projects. 951 S.W.2d at 386. An issue in the case was whether periodic waiver
of lien releases barred Solis’s claims for extra work performed. Id. at 388. The
releases in Green International provided that Solis agreed to “release [Green
International] from all claims arising out of or by reason of work performed and
materials furnished under said subject Subcontract and under the Contractor’s
prime contract with the Owner.” Id. at 388–89. The Texas Supreme Court
considered whether that “global language . . . terminated Solis’ recovery for his
extra work,” and held that it did not. Id. at 389. This conclusion led from the
fact that Green International had “approved change orders for the extra work
. . . several months after Solis had signed the last waiver of lien release.” Id.
(emphasis added). The court reasoned that because “[t]he waivers of liens were
executed months before these written modifications were made, . . . the releases
cannot apply to these subsequent revisions.” Id. Dissimilar facts are before us
in this case. First, the language of the Interim Waivers is specific with regard
to excluding claims for extra work. Second, all claims for extra work at issue in
this case arose before the November 2005 Interim Waiver, and those claims were
never converted into “Work,” as defined by the Contract, through the execution
of later change orders.15 The logic militating against a finding of release in
15
This excludes the change order executed pursuant to the parties’ partial settlement,
which does not bear on Addicks’s present claims for extra work performed before the November
2005 Interim Waiver but not reduced to a change order.
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No. 09-20155
Green International thus counsels in favor of finding release here.16
Gilbane Building involved a dispute between an electrical subcontractor
and a prime contractor on two school construction projects. 2007 WL 582252, at
*5. Among the damages awarded by the jury were claims to payment for work
performed prior to the execution—on each project—of a partial release and
waiver of lien. Id. at *10. The releases there recited that “[s]ubcontractor
hereby waives, relinquishes and releases its lien, claims and charges of every
nature which have arisen by [s]ubcontractor . . . to the extent such monies have
been paid . . . [.]” Id. The court found that the limiting language “to the extent
such monies have been paid” made it “plain [that] the Releases exclude[d] any
sums that were still owed” as of the date the releases were executed. Id. Here,
in contrast, there is no such limitation—the Interim Waivers, by their terms,
released all outstanding claims. Addicks could have limited the reach of this
release by listing its outstanding claims in the blank space provided for
exceptions from the release. In requesting us to find ambiguity in the Interim
Waivers, Addicks asks us to turn back the clock and insert exceptions where it
failed to do so; however, Texas law forbids us from granting that request. See
Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 646 (Tex. 1996) (“We have
long held that courts will not rewrite agreements to insert provisions parties
could have included or to imply restraints for which they have not bargained.”);
Stafford v. Allstate Life Ins. Co., 175 S.W.3d 537, 541 (Tex. App.—Texarkana
2005, no pet.) (“Like any other agreement, a release is subject to . . . the tenet
16
Some commentators have suggested that the releases in Green International did not
bar the subcontractor’s claims for extra work partly because “the releases were not fully
operative until the ten percent retainage had been paid, i.e., the lien releases were in exchange
for one hundred percent payment, not ninety percent . . . .” Robert L. Meyers, III & Michael
F. Albers, Construction Law, 51 S.M.U. L. REV. 805, 808 (1998). Even accepting this reading
of Green International, the effectiveness of the Interim Waivers here is not undermined: unlike
the waivers in Green International, the Interim Waivers specifically excluded from their
coverage “the payment of retainage.”
14
No. 09-20155
that courts will not rewrite agreements to insert provisions parties could have
included or to imply restraints for which they have not bargained.”).
2. Texas Property Code § 53.152
Addicks urges that the Texas Property Code compels the conclusion that
the Interim Waivers were not intended to extend to claims for extra work.
Section 53.152 of the Texas Property Code provides:
(a) When a debt for labor or materials is satisfied or paid by
collected funds, the person who furnished the labor or materials
shall, not later than the 10th day after the date of receipt of a
written request, furnish to the requesting person a release of the
indebtedness and any lien claimed, to the extent of the indebtedness
paid. An owner, the original contractor, or any person making the
payment may request the release.
(b) A release of lien must be in a form that would permit it to be
filed of record.
TEX. PROP. CODE ANN. § 53.152 (Vernon 2007). According to Addicks, the
language “to the extent of indebtedness paid” requires that we interpret the
Interim Waivers to release Addicks’s claims only to the dollar amount listed. We
disagree.
Section 53.152 delineates the minimal obligation of a contractor to release
a lien upon receiving payment, but nothing in the statute suggests that broader
releases may not be executed. One commentator describes the judicial response
to this practice in the construction industry as follows: “[O]wners includ[e]
releases of liens and claims in monthly payment application forms they require
contractors to sign and submit. Such forms typically contain language under
which contractors release owners from all rights to lien and claims ‘to date.’
These lien waivers and releases, when clear and unambiguous, are routinely
enforced.” PHILIP L. BRUNER & PATRICK J. O’CONNOR, JR., CONSTRUCTION LAW
§ 4:48 (2009); see also 53 AM. JUR. Trials § 367 (1995) (“The signed waiver of lien
can be relied upon by the owner to extinguish a construction lien through the
15
No. 09-20155
date of the waiver.”). Texas courts have upheld full releases of claims where, as
here, they are supported by consideration. See Dresser Indus., Inc. v. Page
Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993) (“[A] release . . . is an absolute
bar to any right of action on the released matter.” (citing Hart v. Traders & Gen.
Ins. Co., 189 S.W.2d 493, 494 (Tex. 1945))); Schomburg v. TRW Vehicle Safety
Sys., Inc., 242 S.W.3d 911, 915 (Tex. App.—Dallas 2008, pet. denied); Stolz v.
Honeycutt, 42 S.W.3d 305, 313 (Tex. App.—Houston [14th Dist.] 2001, no pet.).
Addicks has not persuaded us to read this statute, which enables owners to
disencumber their projects and more easily obtain financing, as one that clouds
title and increases the likelihood of litigation by turning clear releases into
ambiguous instruments. We therefore decline to do so.
3. Lack of a Final Waiver
Lastly, Addicks cites the fact that no Final Waiver was executed and
argues that claims for extra work could not have been resolved through the
Interim Waivers. However, this fact does not undermine the unambiguous
language in the Interim Waivers. The differences between the Interim Waivers
and the Final Waiver reveal their different purposes. The Interim Waivers serve
to release Addicks’s lien and claims up through the date of execution, while the
Final Waiver is not limited to a particular date. In addition, the Final Waiver
does not contain a blank space in which to except claims from release, and it
does not exclude the payment of retainage from its scope. The net effect of these
distinctions is that the Interim Waivers settle claims up to the date of execution,
but they contemplate the performance of further services for which Addicks
could claim a lien and be entitled to compensation. The Final Waiver, in
contrast, does not contemplate further services—it is, after all, final. Its purpose
is to settle fully and finally any potential liens or claims outstanding when the
parties agree that the project has been completed and all debts have been paid.
Its absence merely reveals that a dispute arose over services performed after the
16
No. 09-20155
execution of the November 2005 Interim Waiver—a dispute not at issue in this
appeal. The lack of a Final Waiver does not upset the effect of that Interim
Waiver, which released claims arising up to the date of its execution.
4. Conclusion
The language of the Interim Waivers is unambiguous in releasing the
claims that Addicks now pursues. That clarity prevents us from using evidence
of the parties’ course of performance to alter the terms of those Interim Waivers,
and, consequently, there are no issues of material fact that would support
reversal under this theory.
B. Waiver
Addicks next asserts that genuine issues of material fact exist regarding
whether Bridgeland’s conduct waived its right to rely on the language of the
Interim Waivers against Addicks’s claims.
In Texas, waiver is the “intentional relinquishment of a known right or
intentional conduct inconsistent with claiming that right.” Sun Exploration &
Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex. 1987). “[A]n obligee may waive the
obligor’s requirement for strict compliance with the terms of a contract if the
obligee expressly or impliedly assents to the obligor’s nonconforming conduct.”
Fairfield Fin. Group, Inc. v. Gawerc, 814 S.W.2d 204, 209 (Tex. App.—Houston
[1st Dist.] 1991, no writ); accord Bott v. J.F. Shea Co., 388 F.3d 530, 534 (5th
Cir. 2004). “Waiver is largely a matter of intent, and for implied waiver to be
found through a party’s actions, intent must be clearly demonstrated by the
surrounding facts and circumstances.” Jernigan v. Langley, 111 S.W.3d 153, 156
(Tex. 2003) (per curiam); accord Van Indep. Sch. Dist. v. McCarty, 165 S.W.3d
351, 353 (Tex. 2005) (“While waiver may sometimes be established by conduct,
that conduct must be unequivocally inconsistent with claiming a known right.”).
“Silence or inaction, for so long a period as to show an intention to yield the
known right, is also enough to prove waiver.” Tenneco, 925 S.W.2d at 643.
17
No. 09-20155
“Waiver is ordinarily a question of fact, but when the surrounding facts and
circumstances are undisputed, . . . the question becomes one of law.” Jernigan,
111 S.W.3d at 156–57; accord First Interstate Bank of Ariz., N.A. v. Interfund
Corp., 924 F.2d 588, 595 (5th Cir. 1991) (“[T]he issue of waiver becomes a matter
of law only where material facts and circumstances are undisputed or clearly
established and there is no room for argument or inference.”).
According to Addicks, it performed extra work—work requested by
Bridgeland but not listed in the original specifications and not yet reduced to a
change order—on thirty-four occasions. Addicks then requested that Bridgeland
issue change orders and pay for the extra work. The process of negotiation over
those instances of extra work led to Bridgeland issuing some change orders and
paying Addicks for those thirty-four claims, even though, for each claim, Addicks
had executed at least one Interim Waiver prior to Bridgeland doing so. Addicks
claims that Bridgeland’s failure to assert that the Interim Waivers released
those claims at that time—rather than negotiate over change orders and issue
payment—raises a fact issue for trial regarding whether Bridgeland impliedly
waived its right to rely on the Interim Waivers. Bridgeland responds that each
such change order and payment for extra work was invariably followed by a
subsequent Interim Waiver that again released any outstanding claims.
Bridgeland further argues that its decision to negotiate is entirely consistent
with adhering to the processes laid out by the contract—processes that include
the execution of Interim Waivers—and is inconsistent with waiver of its right to
assert release.
We agree with Bridgeland’s interpretation. The undisputed facts show
that Bridgeland and Addicks followed the process for requesting change orders
delineated by the Contract in their negotiations over the thirty-four claims
referenced above. Also as contemplated by the Contract, Bridgeland continued
to insist that Addicks execute Interim Waivers in exchange for each progress
18
No. 09-20155
payment. This conduct is wholly consistent with strict adherence to the
Contract and wholly inconsistent with waiver of the right to rely on the Interim
Waivers.17 Proving implied waiver requires a litigant to clear a high threshold
by clearly demonstrating the other party’s intent to relinquish a right. Compare
Jernigan, 111 S.W.3d at 157 (holding that waiting 600 days after the untimely
filing of a mandatory expert’s report to move to dismiss and filing motion for
summary judgment on other grounds in the interim was not sufficient to
establish waiver because those actions were not inconsistent with an intent to
assert the right to dismissal), with Tenneco, 925 S.W.2d at 643–44 (holding as
a matter of law that contractual right of first refusal for transfer of an ownership
interest was waived where three years after noncomplying transfer elapsed
without complaint before lawsuit was filed), and Fairfield Fin. Group, 814
S.W.2d at 208–10 (holding that a bank’s acceptance of payments, over the course
of eight months, that did not conform to the original repayment schedule waived
the bank’s right to insist on strict compliance with the original repayment
schedule).18 The facts, construed most favorably to Addicks, do not clear that
threshold, and Addicks’s waiver claim fails.
C. Promissory Estoppel
Finally, Addicks argues that the equitable doctrine of promissory estoppel
prevents Bridgeland from claiming that the Interim Waivers released the
17
In attempting to support its waiver argument, Addicks also comments that
Bridgeland first “asserted the [Interim Waivers] as a defense to Addicks’ claims . . . in
connection with this litigation.” We fail to see how asserting an affirmative defense to a cause
of action in litigating a dispute suggests an intention to waive that affirmative defense.
18
Addicks cites Green International, Gilbane, and numerous construction-dispute cases
from other jurisdictions for the proposition that conduct inconsistent with a contractual right
will result in a waiver of that right. Those cases deal generally with whether particular
releases served to release specific claims and not with whether an owner’s decision to negotiate
a compromise with a contractor waives the right to rely on those releases.
19
No. 09-20155
present claims.19 “The requisites of promissory estoppel are: (1) a promise, (2)
foreseeability of reliance thereon by the promisor, and (3) substantial reliance
by the promisee to his detriment.” English v. Fischer, 660 S.W.2d 521, 524 (Tex.
1983). The alleged promise must not be “too vague and indefinite.” Gillum v.
Republic Health Corp., 778 S.W.2d 558, 570 (Tex. App.—Dallas 1989, no writ);
accord Neeley v. Bankers Trust Co. of Tex., 757 F.2d 621, 630 n.7 (5th Cir. 1985)
(“The same indefiniteness that makes the putative contract unenforceable
prevents Neeley from prevailing on a promissory estoppel theory.”); Gilmartin
v. KVTV–Channel 13, 985 S.W.2d 553, 559 (Tex. App.—San Antonio 1998, no
pet.) (holding that alleged oral promises, which failed to modify a contract, “were
. . . too indefinite to permit estoppel causes of action”). A promisee’s “reliance
must be both reasonable and justified.” Vlasek v. Wal-Mart Stores, Inc., No. H-
07-0386, 2007 WL 2402183, at *6 (S.D. Tex. Aug. 20, 2007) (citing Frost Crushed
Stone Co. v. Odell Geer Constr. Co., 110 S.W.3d 41, 45 (Tex. App.—Waco 2002,
no pet.); Gilmartin, 985 S.W.2d at 558). Where these requirements are satisfied,
promissory estoppel “‘prevents a party from insisting upon his strict legal rights
when it would be unjust to allow him to enforce them.’” In re Weekley Homes,
L.P., 180 S.W.3d 127, 133 (Tex. 2005) (quoting Wheeler v. White, 398 S.W.2d 93,
96 (Tex. 1965)).
We conclude that Addicks’s evidence fails to raise a genuine issue of
material fact on whether Bridgeland made a definite promise and on whether
19
Addicks also briefly mentions the doctrine of quasi-estoppel and cites one case
invoking it. See Eckland Consultants, Inc. v. Ryder, Stilwell Inc., 176 S.W.3d 80, 87 (Tex.
App.—Houston [1st Dist.] 2004, no pet.). “The doctrine of quasi-estoppel precludes a party
from asserting, to another’s disadvantage, a right inconsistent with a position previously taken
by that party.” Id. Quasi-estoppel is similar to equitable estoppel, but “[u]nlike equitable
estoppel, quasi-estoppel requires no showing of misrepresentation or of detrimental reliance.”
Id. As discussed above, Bridgeland’s conduct in negotiating change orders and payment while
still obtaining Interim Waivers was not inconsistent with asserting its right to invoke the
release provisions of the Interim Waivers. Addicks therefore cannot satisfy the requirements
of quasi-estoppel.
20
No. 09-20155
Addicks reasonably relied on Bridgeland’s statements.20 The evidence Addicks
cites in support of its promissory estoppel theory consists of an affidavit by its
president, C. Nelson Barfield, and transcripts of voice mail messages left by
Patsy Morris, Bridgeland’s project manager. The alleged promises described in
Barfield’s affidavit amount to an assertion that Bridgeland would resolve
Addicks’s claims for extra work at a later date.21 Such statements of an
intention to reach agreement have been found too vague and indefinite to
survive summary judgment on promissory estoppel. See Global Integrated Bldg.
Sys. v. Target Logistics, LLC, No. H-06-2637, 2009 WL 259360, at *9 (S.D. Tex.
Feb. 3, 2009) (holding that statements amounting to “[If you] ‘can get these
buildings built, I will get you paid’” are too vague and indefinite as a matter of
law in a “multi-million dollar construction contract dispute”); Weitzman v.
Steinberg, 638 S.W.2d 171, 176 (Tex. App.—Dallas 1982, no writ) (holding that
“an agreement to agree” is too indefinite to establish promissory estoppel).
Morris’s voice mail messages similarly reflect the indefinite assurance of an
ongoing negotiation process, rather than a commitment to perform specific acts,
and do not evidence a definite promise.22 See Gillum, 778 S.W.2d at 570 (finding
20
Relating to our discussion of Addicks’s ambiguity arguments above, we also note that
under Texas law, promissory estoppel may not be used to circumvent the parol evidence rule.
Highlands Mgmt. Co. v. First Interstate Bank of Tex., N.A., 956 S.W.2d 749, 757 (Tex.
App.—Houston [14th Dist.] 1997, pet. denied); Stavert Props., Inc. v. RepublicBank of N. Hills,
696 S.W.2d 278, 282 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.).
21
Barfield averred that “Patsy Morris promised me she would pay Addicks when the
extra work was completed. . . . Ms. Morris repeatedly assured me that Addicks would get paid
for all the extra work she directed Addicks to perform even though [an] approval process on
some items was necessary.” (Barfield Aff. 5.) He further averred that “Ms. Morris . . . said we
would deal with payment later and said the items could not be billed until she said so.” (Id.
at 8.)
22
In one message, Morris stated:
David is still under the impression that he is not to do anything in those
areas [the information center and berm] until you and I resolve money. I told
him that wasn’t my impression; that my impression was that you said you
weren’t going to hold anything up, you know, while we are trying to resolve it.
21
No. 09-20155
too vague and indefinite alleged promises that purchaser of hospital would “have
sufficient funding to upgrade the hospital’s equipment care; that the hospital
would remain primarily a [doctors of osteopathy] hospital; that [the plaintiff]
could continue to make the changes to upgrade the level of health care at the
hospital; and that a new hospital facility was to be constructed” (footnote
omitted)).
The vagueness and indefiniteness of the alleged promises also foreclose
Addicks’s claim that it has raised a fact issue regarding reasonable and
justifiable reliance. See Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 142 (Tex.
App.—Houston [14th Dist.] 1999, pet. denied) (“[I]n the absence of a definite
promise . . . reliance [i]s not reasonable or justified as a matter of law.”);
Simpson v. MBank Dallas, N.A., 724 S.W.2d 102, 108 (Tex. App.—Dallas 1987,
writ ref’d n.r.e.) (holding that guarantor who had “signed numerous prior
guaranties in favor of MBank on the exact same guaranty form contract” could
not have reasonably or justifiably relied on alleged assertion by MBank that a
later guaranty was a “mere formality”).
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
AFFIRMED.
....
But I told them to stop everything until you and I can resolve this,
because if we can’t resolve it then I need to stop everything and I need to get
someone else in here to get this fill into the information center and the berm.
Morris followed up with another message over one week later:
Yeah, nothing is resolved it’s not going to be resolved until you and [the
engineers] so, you know, you all kind of agree on the quantities.
My suggestion would be, like I said, that the[ engineers], you bill at your
contract price for quantities, and we’ll have to resolve whatever dollar amount
you may or may not be over that, but we’ll get you something for this dirt that
you’re moving for the berm and that kind of things.
(Voicemail Tr. 2–3, 5.)
22