Court of Appeals of Texas,

Eastland.

Maria Isbell DURON–REYES, Appellant

v.

Jonell LESPERANCE and American National Property and Casualty Company, Appellee.

No. 11–97–00312–CV.

|

July 29, 1999.

Attorneys & Firms

Jerry Dewayne Andrews, George Avery Otstott and John David Townsend, for Maria Isbell Duron–Reyes.

James C. Allums, Jr., and Harold R. Mckeever, for Jonell Lesperance and American National Property and Casualty Company.

Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCLOUD, S.J.²

OPINION

W.G. ARNOT, III, Chief Justice.

*1 Maria Isbell Duron–Reyes was injured in an automobile collision with Jonell Lesperance. American National Property and Casualty Company (ANPCC) carried the automobile liability policy insuring Lesperance. The policy covered bodily injury and property damage claims. After the collision, a claims representative for ANPCC contacted Reyes’ husband to begin settlement negotiations. Approximately one month after the collision, ANPCC sent Reyes a “RELEASE” which covered both bodily injury and property damage claims. The “RELEASE” recited a $1,000.00 consideration. Reyes and her husband took the release to an attorney’s office. They signed the release in the presence of a licensed legal adjuster and a notary public. ANPCC then sent Reyes a check for $1,000.00 for all bodily injury claims and later sent a check for $1,147.50 for the property damage to her car.

Reyes brought a negligence suit against Lesperance and ANPCC alleging only bodily injury. Reyes also alleged that ANPCC either fraudulently induced her to sign the contract or that a mutual mistake was made by both parties when signing the release. The defendants filed a motion for summary judgment alleging the affirmative defenses of release and accord and satisfaction. TEX.R.CIV.P. 94. After a hearing, the trial court granted the defendants’ motion for summary judgment. We affirm.

In a summary judgment case, the issue on appeal is whether the movants met their burden for summary judgment by establishing that there exists no genuine issue of material fact and that they are entitled to judgment as a matter of law. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in her favor. TEX.R.CIV.P. 166a; Goswami v. Metropolitan Savings and Loan Association, 751 S.W.2d 487, 491 (Tex.1988); Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548–49 (Tex.1985). The summary judgment will be affirmed only if the record establishes that the movants have conclusively proved all essential elements of their cause of action or defense as a matter of law. City of Houston v. Clear Creek Basin Authority, supra.

When defendants can establish an affirmative defense as a matter of law, they then may obtain summary judgment by conclusively establishing all the elements of the pleaded affirmative defense. Johnson County Sheriff’s Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex.1996); see also Rule 94. In this case, appellees have conclusively established their affirmative defenses through the “RELEASE” and supporting depositions. While the defendants had the burden of proving their affirmative defense, the burden shifted to Reyes to prove that the “RELEASE” should be set aside. Williams v. Glash, 789 S.W.2d 261 (Tex.1990); Sweeney v. Taco Bell, Inc., 824 S.W.2d 289 (Tex.App.-Fort Worth 1992, writ den’d).

*2 In her first point of error, Reyes argues that the release is unenforceable on the ground of mutual mistake. Reyes relies on Williams v. Glash, supra, claiming that she raised a question of fact as to mutual mistake. In Williams, the plaintiff’s car was damaged in an automobile accident. It was not apparent that the plaintiff suffered any personal injuries. Immediately after the accident, the defendant’s insurance company appraised the damage to the plaintiff’s car and provided her with a check in the amount of the property damage. On the back of the check was a release that the plaintiff signed, containing language that released the defendant and his insurance company from all liability, including property damage and personal injury. Williams later developed physical problems as a result of the accident and attempted to bring a personal injury suit. The Texas Supreme Court reversed the summary judgment granted by the trial court against Williams and held that the doctrine of mutual mistake was available to determine whether the parties to a release intended the release to cover the injury for which suit was later brought. Williams v. Glash, supra at 264–65; see also Johnson v. Texas Association of School Boards Workers’ Compensation Self–Insurance Funds, 852 S.W.2d 648 (Tex.App.-Eastland 1993, no writ).

When mutual mistake is alleged, the task of the court is not to determine whether the release is valid, but whether the parties entered into an otherwise valid release under mutual mistake. Williams v. Glash, supra at 265; Sweeney v. Taco Bell, Inc., supra. Mutual mistake is determined by objective circumstances surrounding the release, not by self-serving subjective statements of the parties’ intent. Williams v. Glash, supra at 264. The court in Williams listed the following objective circumstances: (1) knowledge of the injury by the parties at the time the release was signed, (2) the amount of consideration paid, (3) the extent of negotiations and discussions as to personal injuries, and (4) the haste or lack thereof in obtaining the release. Williams v. Glash, supra.

We now look to the objective factors in this case. First, both parties had knowledge of the extent of Reyes’ injuries at the time the release was signed. The only summary judgment evidence to show that Reyes sustained any injuries appeared in Marina Kay Quinn’s deposition and log notes. Quinn is the medical claims representative for ANPCC who handled Reyes’ claim. Quinn acknowledged that she talked to Reyes’ husband, Guillermo Soto. According to Quinn, Soto stated that Reyes was fine and only needed $500.00 for an emergency room visit. At that point, Quinn offered Soto $1,000.00 to settle the personal injury claim. There is no evidence that Reyes received additional injuries or medical treatment after her visit to the emergency room or after the release was signed.¹ Second, the consideration paid for in the release was $1,000.00. The medical bills were $500.00. ANPCC issued another check for property damage for $1,147.50. The cash value of the car with sales tax was $935.00. Third, the parties discussed a personal injury settlement. Finally, there was no evidence to show that Reyes was pressured to sign the release or that she would not receive payment if she did not sign. Sweeney v. Taco Bell, Inc., supra at 292. To the contrary, Reyes had several days to review the release. She took the release to her attorney’s office. The release was signed by both Reyes and Soto and witnessed by her attorney’s licensed claims adjuster.

*3 The Texas Supreme Court held that in “narrow circumstances” a party may raise a fact issue to set aside a personal injury settlement release under the doctrine of mutual mistake. Williams v. Glash, supra at 265. We find that the objective facts in this case do not fall within the narrow circumstances articulated in Williams. Reyes’ first point of error is overruled.

In her second point of error, Reyes argues that the release is unenforceable on the grounds of fraud and/or material misrepresentation. Fraud, like mutual mistake, is also an affirmative defense to the enforceability of a release. Williams v.. Glash, supra at 261; Tobbon v. State Farm Mutual Automobile Insurance Company, 616 S.W.2d 243 (Tex.Civ.App.-San Antonio 1981, writ ref’d n.r.e.). Therefore, Reyes again has the burden of proving that the release should be set aside. In order to sustain her burden, Reyes must raise an issue of fact as to each element of her fraud defense. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996).

The following elements must be shown: (1) that a material representation was made; (2) that it was false; (3) that, when it was made, the speaker knew it was false or made it recklessly without any knowledge of its truth and as a positive assertion; (4) the speaker made the representation with the intent that it should be acted on by the other party; (5) the other party acted in reliance on the representation; and (6) the party thereby sustained injury. De Santis v. Wackenhut Corporation, 793 S.W.2d 670, 688 (Tex.1990). There is no evidence to show that an actual injury or damages occurred from any alleged misrepresentation. An injury is suffered when “a legal liability or obligation is incurred that is different from the one represented or contracted for.” William v.. Dorsaneo, III, 20 TEXAS LITIGATION GUIDE § 336.04[6] (1998); Turner v. Houston Agricultural Credit Corporation, 601 S.W.2d 61, 64 (Tex.Civ.App–Houston [1st Dist.] 1980, writ ref’d n.r.e.). The summary judgment evidence shows that Reyes received $1,147.50 for property damage to her car and $1,000.00 for bodily injury damages but only she incurred $935.00 in damage to her car and only $500.00 in medical bills. We overrule Reyes’ second point of error.

In her third point of error, Reyes claims the trial court erred in granting the motion for summary judgment on the ground of accord and satisfaction. The trial court’s order did not state a specific reason as to the basis for granting the motion for summary judgment. The court may have granted the motion on the basis of accord and satisfaction or on the basis of release. Furthermore, Reyes argues that the defenses of mutual mistake and fraud are applicable as avoidances to accord and satisfaction agreements. We have previously ruled on both defenses and found that the trial court did not err. The third point of error is overruled.

The judgment of the trial court is affirmed.

	Footnotes
2		Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.
1		In her original petition, Reyes alleged that she suffered various soft tissue injuries to her body and headaches and that she has been diagnosed with a cervical strain. The total amount of the medical charges alleged was $8,634.74. However, statements contained in the pleadings cannot be used by that litigant in a summary judgment proceeding to prove or raise an issue of fact. American Motel, Inc. v. Johnson, 610 S.W.2d 143 (Tex.1980); Clendennen v. Williams, 896 S.W.2d 257, 260 (Tex.App.-Texarkana 1995, no writ.)