Alanies v. O'Quinn Kerensky ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________________________
No. 97-20387
(Summary Calendar)
____________________________________
BARBARA ALANIES,
Plaintiff-Appellant,
versus
O’QUINN, KERENSKY, MCANINCH
& LAMINACK; ET AL Defendants
O’QUINN, KERENSKY, MCANINCH
& LAMINACK, and JOHN M.
O’QUINN, P.C.,
Defendants-Appellees.
_______________________________________________
Appeal from the United States District Court
for the Southern District of Texas
No. 4:95-CV-5802
_______________________________________________
March 19, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
Per Curiam:*
In this employment discrimination case, Plaintiff-Appellant
Barbara Alanies appeals the district court’s grant of summary
judgment in favor of Defendant-Appellee O’Quinn, Kerensky, McAninch
& Laminack (law firm), holding that Alanies’s claim was precluded
*
Pursuant to 5TH CIRCUIT RULE 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIRCUIT RULE 47.5.4.
by the release provisions of the Separation Agreement she signed at
the termination of her employment with the law firm. Alanies
asserts that the district court erred, as (1) the release was not
supported by adequate consideration, and (2) she promptly returned
the contract consideration and therefore did not ratify the
Separation Agreement. After a de novo review of the record,1 we
find no merit in either of these arguments and, accordingly,
affirm.
Alanies contends first that she received no consideration for
her release of all claims against the law firm, as the Separation
Agreement provides that Alanies’s severance pay was tendered “in
lieu of notice.” She maintains that, inasmuch as the severance pay
was consideration for lack of notice to her prior to termination,
it could not also be sufficient consideration for the release. But
the Separation Agreement expressly provides that
[b]y acceptance and negotiation of the severance check
and by the signature below, the undersigned . . .
releases and forever discharges Law Firm for any claim of
any kind known or unknown, whether in contract or tort,
property damages and any other damages which have accrued
or may ever accrue to the undersigned arising out of the
employment.
As the district court noted, a single consideration is sufficient
1
This court reviews the granting of a summary judgment de novo
under well-established standards. Blakeney v. Lomas Info. Sys.,
Inc., 65 F.3d 482, 484 (5th Cir. 1995), cert. denied, 116 S. Ct.
1042 (1996).
2
to support multiple promises bargained for in an agreement.2 After
a review of the plain language of the Separation Agreement, we
reach the same conclusion as did the district court —— that
Alanies’s receipt of severance pay was sufficient consideration to
support all of Alanies’s promises in the Separation Agreement, not
just her waiver of notice.
Alanies also asserts that the Separation Agreement is
unenforceable because (1) she was suffering from an impaired
physical and emotional condition and was coerced into signing it,
and (2) the law firm misrepresented to her that it would continue
her medical benefits for three weeks. The law firm insists that,
even if the agreement was voidable, Alanies ratified it by failing
to return the severance pay within a reasonable time after learning
that the release was voidable.
We have held that to rescind a release agreement, an employee
must (1) restore the status quo ante, and (2) return the
consideration shortly after the discovery of the alleged
deficiency.3 Failure to return the consideration given in exchange
for the covenant not to sue manifests an intention to be bound by
2
Birdwell v. Birdwell, 819 S.W.2d 223, 228 (Tex. App. —— Fort
Worth 1991, writ denied); Restatement (Second) of Contracts § 80
cmt. a (1981) (“A single performance or return promise may thus
furnish consideration for any number of promises.”).
3
Blakeney, 65 F.3d at 485.
3
the terms of the waiver.4 Although we have not “prescribe[d] a
precise timetable for tender” of consideration,5 we have held that
summary judgment was appropriate when one plaintiff waited two
years6 and when another waited twenty-two months7 to return the
benefits of the release.
By Alanies’s own calculations, her tender of the severance
payment came more than sixteen months after she became free of
those physical impairments and oppressive circumstances that
purportedly compromised her free will and led her to sign the
release. Even under Alanies’s alternate contention, more than nine
months elapsed between her discovery of the law firm’s alleged
misrepresentation about her health insurance and her return of the
money. In the interval between her signing the release and her
tender of the lump sum settlement payment, Alanies (1) wrote
several letters to the law firm, detailing her claim and demanding
settlement; (2) obtained legal counsel; (3) engaged in settlement
negotiations; (4) received a letter from counsel for McAninch, a
4
Wamsley v. Champlin Ref. & Chems., Inc., 11 F.3d 534, 540
(5th Cir. 1993), cert. denied, 514 U.S. 1037 (1995); see also
Williams v. Phillips Petroleum Co., 23 F.3d 930, 937 (5th Cir.),
cert. denied, 513 U.S. 1019 (1994)(“Even if a release is tainted by
misrepresentation or duress, it is ratified if the releasor retains
the consideration after learning that the release is voidable.”).
5
Blakeney, 65 F.3d at 485 n.3.
6
See Grillet v. Sears, Roebuck & Co., 927 F.2d 217, 221 (5th
Cir. 1991), overruled on other grounds, Digital Equip. Corp. v.
Desktop Direct, Inc., 511 U.S. 863 (1994).
7
See Blakeney, 65 F.3d at 485 n.3.
4
partner at the law firm, pointing out that she had “never attempted
to revoke her release, much less return the consideration she
received for signing it;” and (5) filed an EEOC charge. Taking
into consideration all these factors, we agree with the district
court that
as a matter of law . . . her failure to return the cash
consideration within sixteen or seventeen months after
being fully cognizant of most of the claims that she has
now sued on, and within nine months after discovering the
additional claim of misrepresentation that her medical
insurance would be continued for three weeks, is a
passage of time that fails separately and in the
aggregate to meet the Grillet requirement that she return
the consideration “shortly after” or “soon after”
discovering the misrepresentation.
Our de novo review leads us to agree with the conclusion of
the district court that Alanies’s claims are barred by the terms of
her release and that she ratified it. Consequently, the judgment
of the district court should be, and therefore is,
AFFIRMED.
5