When does a claim or appeal become moot?

Release can operate as an affirmative defense, but sometimes the invocation of mootness can even be more effective to quickly terminate a pending case or appeal. 

WHEN DOES THE MOOTNESS DOCTRINE KICK IN?

A case becomes moot when: (1) it appears that a party seeks to obtain a judgment upon some controversy, when in reality none exists; or (2) a party seeks a judgment upon some matter, which cannot have any practical legal effect upon a then existing controversy. Camarena v. Tex. Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988); Robinson v. Alief Indep. Sch. Dist., 298 S.W.3d 321, 324 (Tex. App.-Houston [14th Dist.] 2009, pet. denied).

EFFECT OF UNCONDITIONAL RELEASE OF JUDGMENT 

"An unconditional release of judgment operates as a total relinquishment of all rights of the judgment creditor in the judgment. It is a complete discharge of the debt created by the judgment and a complete surrender of the judgment creditor's rights in the judgment." Rapp v. Mandell & Wright, P.C., 123 S.W.3d 431, 435 (Tex. App.-Houston [14th Dist.] 2003, pet. denied).

SOURCE:  HOUSTON COURT OF APPEALS - 14-13-00467-CV - 1/9/2014

NATURE OF MOOTNESS DOCTRINE AND EFFECT ON PENDING APPEAL 

The mootness doctrine limits courts to deciding cases in which an actual controversy exists. Ex parte Flores, 130 S.W.3d 100, 104-05 (Tex. App.-El Paso 2003, pet. ref'd). When there has ceased to be a controversy between the litigating parties, which is due to events occurring after judgment has been rendered by the trial court, the decision of an appellate court would be a mere academic exercise and the court may not decide the appeal. Id. A case that is moot is normally not justiciable. Pharris v. State, 165 S.W.3d 681, 687-88 (Tex. Crim. App. 2005).

EXCEPTION 

One of the exceptions to the general rule is when a claim is "capable of repetition, yet evading review." The United States Supreme Court has said that "the `capable of repetition but evading review' doctrine [is] limited to the situation where two elements combine: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149 (1975). The Texas Court of Criminal Appeals has adopted and applied this doctrine. See Pharris, 165 S.W.3d at 688.

SOURCE: HOUSTON COURT OF APPEALS FOR THE FOURTEENTH DISTRICT - 14-13-00647-CR - 2/6/2014 EX PARTE BRADSHAW, Tex: Court of Appeals, 14th Dist. 2014 (criminal case context)

Pre-injury release as bar to subsequent lawsuit

 
RELEASE AS AN AFFIRMATIVE DEFENSE AGAINST NEGLIGENCE CLAIM

Release is an affirmative defense. Tex. R. Civ. P. 94. The effect of a release like the one at issue in this case “is to relieve a party in advance of responsibility for its own negligence.” Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 507 (Tex. 1993). “It operates to extinguish the claim or cause of action as effectively as would a prior judgment between the parties and is an absolute bar to any right of action on the released matter.” Id. at 508.

Because a pre-injury release of a party's “own negligence is an extraordinary shifting of risk, [the Texas Supreme Court] has developed fair notice requirements which apply to these types of agreements.” Id. To constitute fair notice, a release must satisfy the requirements of conspicuousness and the express negligence rule. Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004); Dresser, 853 S.W.2d at 508. Whether a provision provides fair notice is a question of law for the courts. Dresser, 853 S.W.2d at 509.
The business and commerce code's standard for conspicuousness applies to our determination of whether a release is conspicuous. Mickens v. Longhorn DFW Moving, Inc., 264 S.W.3d 875, 879 (Tex. App.-Dallas 2008, pet. denied) (citing Dresser, 853 S.W.2d at 510-11). It states:

(10) “Conspicuous,” with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is “conspicuous” or not is a decision for the court. Conspicuous terms include the following:
(A) a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and
(B) language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.

Tex. Bus. & Com. Code Ann. § 1.201(10) (West 2009). The test for the court is “whether attention can reasonably be expected to be called to [the provision].” Mickens, 264 S.W.3d at 879 (quoting Littlefield v. Schaefer, 955 S.W.2d 272, 275 (Tex. 1997)); Sydlik v. REEIII, Inc., 195 S.W.3d 329, 332-33 (Tex. App.-Houston [14th Dist.] 2006, no pet.). 
  
The express negligence rule states that if a party intends to be released from its own future negligence it must express that intent in clear, unambiguous terms within the four corners of the contract. Reyes, 134 S.W.3d at 192; Sydlik, 195 S.W.3d at 333. The purpose of “the express negligence rule is to require scriveners to make it clear when the intent of the parties is to exculpate” a party for that party's own negligence. Atlantic Richfield Co. v. Petroleum Pers., Inc., 768 S.W.2d 724, 726 (Tex. 1989). Language that specifically refers to “any negligent act of [the released party]” may be sufficient to define the parties' intent. Id.
  
SOURCE: Dallas Court of Appeals - 05-10-00146-CV - 8/11/11

Public policy defense to contract enforcement in Texas

State's public policy may provide grounds for avoidance of contract

ILLEGAL CONTRACT – PUBLIC POLICY AS BAR TO JUDICIAL ENFORCEMENT OF A CONTRACT - CONTRACT MAY NOT BE IN VIOLATION OF PUBLIC POLICY

  

The Legislature determines public policy through statutes. Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 665 (Tex. 2008). In addition, the Texas Supreme Court has determined that certain agreements violate public policy. Id. “[T]o determine whether a contract violates public policy, we consider the policies underlying any applicable statutes.” Lawrence v. CDB Servs., Inc., 44 S.W.3d 544, 555 (Tex. 2001) (superseded by statute on other grounds).

In examining an agreement to determine if it is against public policy, we look to see whether the agreement has a tendency to injure the public good. Sacks v. Dallas Gold & Silver Exch., Inc., 720 S.W.2d 177, 180 (Tex. App.—Dallas 1986, no writ).

Whether a contract is contrary to public policy is a question of law. Hoover Slovacek LLP v. Walton, 206 S.W.3d 557, 562 (Tex. 2006).

A RELEASE IS A CONTRACT AND THUS SUBJECT TO STATE'S PUBLIC POLICY

In general, Texas law favors voluntary settlement of disputes and, thus, will give a properly executed release legal force. See Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 178 (Tex. 1997); see also In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 129 & n.11 (Tex. 2004) (orig. proceeding) (“As a rule, parties have the right to contract as they see fit as long as their agreement does not violate the law or public policy.”).

A release, just as any other contract, however, is subject to the public policy of the State. Ranger Ins. Co. v. Ward, 107 S.W.3d 820, 827 (Tex. App.—Texarkana 2003, pet. denied).

SOURCE: Houston Court of Appeals 14-09-00641-CV 5/3/11

LEGAL TERMS: Illegal contract defense | public policy | illegal contract | enforceability avoidance of contracts

Release of claim(s) as affirmative defense

RELEASE / SETTLEMENT AS BAR TO SUBSEQUENT ACTION 

Release is an affirmative defense. Tex. R. Civ. P. 94. A release is a writing 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, No. 01-07-00522-CV, 2010 WL 5395640, at *16 (Tex. App.—Houston [1st Dist.] Dec. 31, 2010, no pet.). A release of a claim or cause of action extinguishes the claim or cause of action. Id. (citing Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993)).

 SOURCE: Houston Court of Appeals 01-09-00816-CV 4/28/11

 RELATED LEGAL TERMS: Release of claim, prior settlement of controversy dispute, accord and satisfaction

COMPARE & CONTRAST: Settlement & Release vs. Indemnity

RELEASE & SETTLEMENT VS. INDEMNITY AGREEMENT COMPARED
 
A release and an indemnity agreement are different. An indemnity agreement is a promise by the indemnitor to safeguard or hold the indemnitee harmless against existing or future loss or liability, or both. MG Bldg. Materials, Ltd. v. Moses Lopez Custom Homes, Inc., 179 S.W.3d 51, 63 (Tex. App.--San Antonio 2005, pet. denied); see Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993). An indemnity provision does not apply to claims between the parties to the agreement, but obligates the indemnitor to protect the indemnitee against claims brought by third parties. MG Bldg., 179 S.W.3d at 63. Thus, an indemnity agreement creates a potential cause of action in the indemnitee. Id.

A release, on the other hand, is an agreement by one party to surrender its own cause of action against the other party. Id. at 64; see Dresser Indus., 853 S.W.2d at 508. A release extinguishes any claim the releasor might have against the releasee without regard to the releasee's liability to third parties. MG Bldg., 179 S.W.3d at 64. A release is an affirmative defense and must be pled. Id.; see Tex. R. Civ. P. 94. Thus, typical release language is "release, discharge, relinquish," while typical indemnity language is "indemnify, save, protect, save/hold harmless." MG Bldg., 179 S.W.3d at 64.

 SOURCE: SAN ANTONIO COURT OF APPEALS - 04-08-00302-CV (9/15/09)

Release as affirmative defense to claim

A release is a complete bar to a later action based on matters covered in the release. Schomburg v. TRW Vehicle Safety Sys., Inc., 242 S.W.3d 911, 913 (Tex. App.- Dallas 2008, pet. denied) (citing Deer Creek Ltd. v. N. Am. Mortgage Co., 792 S.W.2d 198, 201 (Tex. App.-Dallas 1990, no writ)). Releases are only effective against named parties to the release or parties described with such particularity that their identity is not in doubt. Mem'l Med. Ctr. of E. Texas v. Keszler, 943 S.W.2d 433, 434 (Tex. 1997) (per curiam) (citing Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 420 (Tex. 1984)). Thus, the BII defendants had the summary judgment burden of showing 2055 was either specifically identified in the release or described with sufficient particularity that its identity is not in doubt. Id. See also Schomburg, 242 S.W.3d at 913, 914. We determine the scope of a release in the same way we review other contracts. See Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990). That is, we ascertain and give effect to the parties' intentions as expressed in the document. Frost Nat'l Bank v. L&F Distributors, Ltd., 165 S.W.3d 310, 311-12 (Tex. 2005) (per curiam). We must consider the entire document and attempt to harmonize and give effect to all provisions by analyzing the provisions with reference to the whole agreement. Id. SOURCE: 05-08-01057-CV