Miguel Lopez v. the Garbage Man, Inc. D/B/A the G-Man, Inc., Gary Hawley, David Munoz, Anthony Johnson, and Loretta Ayres ( 2011 )


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  •                                     NO. 12-08-00384-CV
    IN THE COURT OF APPEALS
    TWELFTH COURT OF APPEALS DISTRICT
    TYLER, TEXAS
    MIGUEL LOPEZ,                                 §            APPEAL FROM THE 114TH
    APPELLANT
    V.
    §            JUDICIAL DISTRICT COURT
    THE GARBAGE MAN, INC. d/b/a THE
    G-MAN, INC., GARY HAWLEY, BRENDA
    HAWLEY, DAVID MUNOZ, ANTHONY
    JOHNSON, AND LORETTA AYRES,
    APPELLEES                       §                          SMITH COUNTY, TEXAS
    MEMORANDUM OPINION
    Miguel Lopez appeals the summary judgment entered in favor of Appellees The Garbage
    Man, Inc. d/b/a The G-Man, Inc., Gary Hawley, Brenda Hawley, David Munoz, Anthony
    Johnson, and Loretta Ayres. Lopez also appeals the trial court’s denial of his no evidence
    motion for summary judgment. Lopez raises four issues on appeal. We dismiss for want of
    jurisdiction in part and affirm in part.
    BACKGROUND
    On or about November 14, 2006, Lopez was working for The G-Man, Inc. as a “thrower”
    on one of its garbage trucks. Lopez was injured when a garbage can fell on his left hand from
    the mechanism on the truck designed to raise the can over the truck and empty it. Lopez was
    treated for his injuries, spent approximately eight days in the hospital, and, ultimately, had a
    majority of his left ring finger amputated.
    Lopez returned to work as a “thrower” on February 16, 2007. On or before this date,
    Lopez and Appellees commenced a series of negotiations concerning Lopez’s being
    compensated for his injury and the resulting medical treatment.         During the period of
    1
    negotiations, multiple persons assisted Lopez with translation and interpretation of the proposed
    agreement because Lopez could not read or understand English. Following the parties’ first
    meeting, Lopez was provided with a copy of the proposed agreement for his further review. The
    parties later reconvened, but parted ways without reaching an agreement. Lopez again took the
    proposed release agreement with him.
    Upon the parties’ third meeting, Lopez was assisted by a certified interpreter, Norma
    Meeks.1 Meeks translated the agreement for Lopez from English to Spanish and sought to assure
    that Lopez understood the terms of the agreement. Thereafter, Lopez executed the agreement.
    Under the terms of the agreement, Appellees2 agreed to pay Lopez $5,000.00 in $100.00 monthly
    increments. The parties further agreed to “carve out” of the release Lopez’s past medical
    expenses and reasonable and necessary future medical expenses. In exchange, Lopez agreed to
    release Appellees from all claims, including claims for negligence and gross negligence, and to
    indemnify Appellees against any future claims and demands in the event that any suit predicated
    on the same event or events was instituted against Appellees.
    Lopez’s employment was terminated in July 2007. On November 1, 2007, Lopez filed
    the instant suit against Appellees alleging that they were liable to him for his previous injury
    under theories of negligence and negligence per se. Lopez also sought to recover exemplary
    damages and to pierce the corporate veil of The Garbage Man, Inc.                            Appellees filed a
    counterclaim asserting that Lopez breached the release agreement.
    Subsequently, Brenda Hawley filed a no evidence motion for summary judgment. Lopez
    filed a response. On May 9, 2008, the trial court granted Ms. Hawley’s no evidence motion and
    ordered that Lopez’s causes of action against her be severed and dismissed with prejudice.3
    On May 28, 2008, Appellees4 filed their Third Amended Motion for Summary Judgment
    on Lopez’s negligence causes of action based on their affirmative defense of release. Soon
    1
    The record reflects that, at some point in time, Meeks advised Lopez to consult an attorney before signing
    the agreement.
    2
    Only Lopez, Gary Hawley, and The Garbage Man, Inc. are specifically named as parties to the release
    agreement. Accordingly, any reference to “Appellees” as parties to the agreement does not necessarily include an
    unnamed party. Lopez has not argued that Appellees Brenda Hawley, David Munoz, Anthony Johnson, or Loretta
    Ayres are not parties to the release by their status as employees of The Garbage Man, Inc. However, we note that
    the release makes reference to general categories of individuals that are bound by the release.
    3
    Lopez notes in his brief that no new cause number was assigned to his severed causes of action against
    Brenda Hawley.
    2
    thereafter, Lopez filed a no evidence motion for summary judgment against Appellees arguing
    that there was no evidence to support that the release complied with Texas Labor Code,
    subsections 406.033(f) and (g). The parties each filed a response to the other’s motion. As part
    of his response, Lopez made multiple objections to Appellees’ motion and supporting evidence.
    Ultimately, the trial court overruled Lopez’s objections, granted Appellees’ Third Amended
    Motion for Summary Judgment, and denied Lopez’s no evidence motion. The parties nonsuited
    their remaining causes of action against one another, and this appeal followed.
    OBJECTIONS TO SUMMARY JUDGMENT EVIDENCE
    In his first issue, Lopez argues that the trial court erred when it overruled his objections
    to Appellees’ motion for summary judgment. Specifically, Lopez argues that the trial court erred
    in overruling the following objections: (1) Appellees’ motion failed to address his claims for
    piercing the corporate veil and exemplary damages based upon malice and/or fraud; (2)
    Appellees’ motion failed to show that there is no genuine issue as to any material fact and that
    Appellees are entitled to judgment as a matter of law; (3) the verification attached to Appellees’
    motion (a) did not constitute summary judgment evidence, (b) did not authenticate any
    documents attached to it, (c) was not based upon the affiant’s personal knowledge because it
    qualified the correctness of the subject information, and (d) did not state that the documents
    attached are true and correct copies of the originals in the affiant’s possession or true and correct
    copies of certified copies on file with the court; (4) the documents contained in Exhibits “A” and
    “I” to Appellees’ motion are unauthenticated photocopies and are not competent summary
    judgment evidence; (5) Appellees’ motion contains Lopez’s original answer to their
    counterclaim, a pleading that is not summary judgment evidence; and (6) neither Appellee
    Loretta Ayres’s affidavit nor the documents attached to it demonstrate that Lopez was not under
    duress when he executed the release or that Ayres delivered paychecks to Lopez when he was in
    the hospital.
    Standard of Review
    We review a trial court's ruling on an objection to summary judgment evidence for an
    abuse of discretion. See Cruikshank v. Consumer Direct Mortgage, Inc., 
    138 S.W.3d 497
    , 499
    4
    When referring to Appellees’ Third Amended Motion for Summary Judgment, the term “Appellees” does
    not include Brenda Hawley.
    3
    (Tex. App.–Houston [14th Dist.] 2004, pet. denied) (citing City of Brownsville v. Alvarado, 
    897 S.W.2d 750
    , 753 (Tex. 1995)). A trial court abuses its discretion if it acts without reference to
    guiding rules or principles. Williams v. Brown, 
    33 S.W.3d 410
    , 411 (Tex. App.–Houston [1st
    Dist.] 2000, no pet.).
    Motion Failed to Address Claims for Piercing Corporate Veil and Exemplary Damages
    Lopez first objected that Appellees’ motion failed to address his claims for piercing the
    corporate veil and exemplary damages based upon malice and/or fraud. A defendant moving for
    summary judgment must either negate at least one essential element of the nonmovant’s cause of
    action or prove all essential elements of an affirmative defense. See Randall's Food Markets,
    Inc. v. Johnson, 
    891 S.W.2d 640
    , 644 (Tex. 1995). Here, Appellees raised the affirmative
    defense of release. See TEX. R. CIV. P. 94. As set forth in greater detail herein, to establish this
    affirmative defense, Appellees were required to demonstrate that (1) by a valid release, (2) Lopez
    agreed that a duty or obligation owed to him by Appellees is discharged immediately on the
    occurrence of a condition, and (3) the release mentioned the claim to be released. See Dresser
    Indus., Inc. v. Page Petroleum, Inc., 
    853 S.W.2d 505
    , 508 (Tex. 1993); Victoria Bank & Trust
    Co. v. Brady, 
    811 S.W.2d 931
    , 938 (Tex. 1991). Recovery of exemplary damages requires a
    finding of an independent tort with accompanying actual damages. See Schlueter v. Schlueter,
    
    975 S.W.2d 584
    , 589 (Tex. 1998). Furthermore, they are designed to penalize a defendant for
    outrageous, malicious, or otherwise morally culpable conduct. See Owens-Corning Fiberglas
    Corp. v. Malone, 
    972 S.W.2d 35
    , 40 (Tex. 1998). Moreover, “piercing the corporate veil” is a
    theory utilized to impose individual liability upon shareholders, officers, and directors of a
    corporation, who are normally insulated from the corporation’s liability. See Phillips v. United
    Heritage Corp., 
    319 S.W.3d 156
    , 158 (Tex. App.–Waco 2010, no pet.). This theory is not a
    substantive cause of action.     See 
    id. (citing Mapco,
    Inc. v. Carter, 
    817 S.W.2d 686
    , 688
    (Tex.1991)). Further still, neither of these theories is related to Appellees’ affirmative defense of
    release. Therefore, we hold that Appellees were not required to address these theories in their
    motion for summary judgment. Accordingly, we conclude that the trial court did not abuse its
    discretion in overruling Lopez’s objection.
    Motion Failed to Demonstrate Requirements of Texas Rule of Civil Procedure Rule 166a(c)
    Lopez next objected that Appellees’ motion failed to show that there is no genuine issue
    as to any material fact and that Appellees are entitled to judgment as a matter of law. We cannot
    4
    determine from this objection whether Lopez intended to challenge the sufficiency of Appellees’
    summary judgment motion or to object to the motion because he contended that Appellees were
    not entitled to summary judgment under rule 166a(c). Based on our review of Appellees’
    motion, we conclude that it is not insufficient under rule 166a(c). In their motion, Appellees
    argue that they are entitled to judgment as a matter of law on Lopez’s negligence based claims as
    a result of Lopez’s execution of the release agreement. Appellees further argue that there is no
    genuine issue of material fact underlying this affirmative defense. Finally, Appellees offer
    authority and citation to attached summary judgment evidence in support of their motion. To the
    extent Lopez’s objection was based on the sufficiency of Appellees’ motion, we conclude that
    the trial court did not abuse its discretion in overruling his objection. On the other hand, if the
    intended substance of Lopez’s objection was that Appellees were not entitled to summary
    judgment, we will resolve this question in conjunction with our resolution of Lopez’s second
    issue.
    Verification Attached to Appellees’ Motion and Authenticity of Exhibits “A” and “I”
    Lopez further objected that the verification attached to Appellees’ motion (a) did not
    constitute summary judgment evidence, (b) did not authenticate any documents attached to it, (c)
    was not based upon the affiant’s personal knowledge, and (d) did not state that the documents
    attached are true and correct copies of the originals in the affiant’s possession or true and correct
    copies of certified copies on file with the court. Appellees respond that the verification was not
    intended to constitute summary judgment evidence, but rather was intended to authenticate those
    exhibits to their motion that are not self-authenticating. Based on our review, only two of the
    exhibits relied upon by Appellees in their motion for summary judgment required
    authentication––Exhibit “A,” the release agreement, and Exhibit “I,” receipts for Lopez’s
    medical bills.
    The record indicates that Exhibit “A” was also an exhibit to Lopez’s deposition. Lopez’s
    deposition transcript is Exhibit “B” to Appellees’ motion. When the release agreement became a
    deposition exhibit, Lopez, the deponent, who was subject to cross examination about the release
    agreement, affirmed that he previously had seen the document, and identified his signature at the
    bottom of it.    At that point, the release agreement became competent summary judgment
    evidence. See Morgan v. Anthony, 
    27 S.W.3d 928
    , 929 (Tex. 2000) (party’s own interrogatory
    answer became competent summary judgment evidence when it became a deposition exhibit,
    5
    party affirmed in her deposition that it was correct, and party was subject to cross examination
    about the assertions in her interrogatory answer). Thus, we conclude that Exhibit “A” was
    properly authenticated.
    We next consider whether Exhibit “I” was properly authenticated by Appellees’
    attorney’s verification.        The requirement of authentication or identification as a condition
    precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter
    in question is what the proponent claims. TEX. R. EVID. 901(a). Here, Appellees’ counsel
    signed a notarized verification swearing, in pertinent part, as follows:
    I am the attorney for Defendants … in the above styled and numbered cause. I am fully
    qualified and authorized to make this Verification. The facts contained in Defendants’ Third
    Amended Motion for Summary Judgment are true and correct based upon information and belief.
    Further, the exhibits attached hereto and incorporated herein are true and correct.
    Exhibit “I” included a cover page that described the exhibit as “ZERO BALANCE RECEIPTS
    FOR MEDICAL BILLS FOR PLAINTIFF.” Lopez argues that Appellees’ counsel’s broad
    description of the exhibits as being “true and correct” does not satisfy rule 901(a)’s requirement
    that the proponent demonstrate the document is what he claims. We agree with Lopez that
    Appellees’ counsel’s description of the exhibits as merely “true and correct” is a broad one.
    Moreover, a better description would be that, for instance, Exhibit “I” contains “true and correct
    copies of [Zero Balance Receipts for Medical Bills for the Plaintiff] the originals [of which are]
    in [my] possession.” See, e.g., Brosseau v. Ranzau, 
    81 S.W.3d 381
    , 393 (Tex. App.–Beaumont
    2002, pet. denied). However, we note that the verification encompassed Exhibit “I.” It is,
    therefore, reasonable that the description on the cover page was likewise encompassed by the
    verification. Thus, the trial court could have reasonably concluded that Appellees’ counsel was
    swearing not only that the contents of Exhibit “I” are true and correct, but that the description of
    the exhibit on the cover page is also true and correct. We conclude that the trial court did not act
    without reference to guiding rules or principles when it determined that Appellees’ counsel’s
    verification supplied evidence sufficient to support a finding that Exhibit “I” is what Appellees’
    counsel claimed.5
    Lopez further argues that Appellees’ verification does not demonstrate that it is based on
    Appellees’ counsel’s personal knowledge because it is based on his subjective belief rather than
    5
    Exhibit “I” is not necessary to or relied on in support of our analysis of Lopez’s second issue.
    6
    his personal knowledge.       Lopez asserts that this language qualifies Appellees’ counsel’s
    statement that the facts alleged and the exhibits attached are true and correct. A summary
    judgment affidavit does not need to recite the phrase “personal knowledge” if it is apparent that
    the affiant is testifying based upon personal knowledge. See Cooper v. Circle Ten Council Boy
    Scouts of America, 
    254 S.W.3d 689
    , 698 (Tex. App.–Dallas 2008, no pet.). Based upon our
    reading of Appellees’ counsel’s verification, we note that while he stated that the facts contained
    in Defendants’ Third Amended Motion for Summary Judgment were based upon “information
    and belief,” he unequivocally stated that “the exhibits attached hereto and incorporated herein are
    true and correct.” Because Appellees rely on their counsel’s verification solely as a means to
    authenticate certain exhibits that are not self-authenticating, any qualification of the truth or
    correctness of the facts contained in Appellees’ motion for summary judgment does not affect
    the unqualified verification of the authenticity of the exhibits.
    We conclude that the trial court did not abuse its discretion in overruling Lopez’s
    objection to Appellees’ counsel’s verification or the exhibits it authenticated.
    Lopez’s Original Answer to Appellees’ Counterclaim Not Summary Judgment Evidence
    Lopez also objected to Appellees’ Exhibit “C” to their motion, which consisted of
    Lopez’s Original Answer to Appellees’ Counterclaim. Lopez correctly asserts that pleadings are
    ordinarily not considered to be competent summary judgment evidence, even if sworn or
    verified. See Mackey v. Great Lakes Invs, Inc., 
    255 S.W.3d 243
    , 252 (Tex. App.–San Antonio
    2008, pet. denied). However, in the instant case, based on our review of their motion, Appellees
    are not relying on Exhibit “C” as summary judgment evidence. Rather, Appellees cite to Exhibit
    “C” in only one instance as a reference point for their description of Lopez’s factual assertions
    made in his pleadings concerning his argument that Appellees procured his acquiescence to the
    release agreement by duress. Appellees’ use of Exhibit “C” to outline the issue was appropriate.
    See 
    id. Because Appellees
    do not cite Exhibit “C” as a factual basis for their motion for
    summary judgment, Lopez’s objection is of no moment and was properly overruled. See 
    id. at 253.
    Evidentiary Value of Ayres Affidavit
    Lopez finally objected that neither Appellee Ayres’s affidavit, Exhibit “D,” nor the
    documents attached to it demonstrate that Lopez was not under duress when he executed the
    release or that Ayres delivered paychecks to Lopez when he was in the hospital. Lopez’s
    7
    objection does not address errors in the substance or form of Ayres’s affidavit. Rather, he
    contends that it offers no evidentiary support to the facts alleged in Appellees’ motion for
    summary judgment.      This objection addresses the propriety of the trial court’s summary
    judgment as opposed to a defect in the form of the Ayres affidavit. Compare TEX. R. CIV. P.
    166a(c) with TEX. R. CIV. P. 166a(f). Accordingly, we hold that the trial court did not abuse its
    discretion in overruling Lopez’s objection to Exhibit “D.” We will address the issue of whether,
    based upon the summary judgment evidence, Appellees’ were entitled to judgment as a matter of
    law in our discussion of Appellees’ second issue.
    Lopez’s first issue is overruled.
    APPELLEES’ MOTION FOR SUMMARY JUDGMENT
    In his second issue, Lopez argues that the trial court erred in granting Appellees’ Third
    Amended Motion for Summary Judgment.
    Standard of Review and Governing Law
    Because the propriety of summary judgment is a question of law, we review the trial
    court’s summary judgment determinations de novo. See Valence Operating Co. v. Dorsett, 
    164 S.W.3d 656
    , 661 (Tex. 2005). The standard of review for a traditional summary judgment
    motion pursuant to Texas Rule of Civil Procedure 166a(c) is threefold: (1) the movant must
    show there is no genuine issue of material fact and he is entitled to judgment as a matter of law;
    (2) in deciding whether there is a disputed, material fact issue precluding summary judgment, the
    court must take as true evidence favorable to the nonmovant; and (3) the court must indulge
    every reasonable inference from the evidence in favor of the nonmovant and resolve any doubts
    in the nonmovant's favor. See TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 
    690 S.W.2d 546
    , 548–49 (Tex.1985); Palestine Herald-Press Co. v. Zimmer, 
    257 S.W.3d 504
    , 508
    (Tex. App.–Tyler 2008, pet. denied).
    A defendant moving for summary judgment must either negate at least one essential
    element of the nonmovant's cause of action or prove all essential elements of an affirmative
    defense. See Randall's Food Markets, 
    Inc., 891 S.W.2d at 644
    . We are not required to
    ascertain the credibility of affiants or to determine the weight of evidence in the affidavits,
    depositions, exhibits and other summary judgment proof. See Gulbenkian v. Penn, 
    151 Tex. 412
    , 
    252 S.W.2d 929
    , 932 (1952); 
    Zimmer, 257 S.W.3d at 508
    . The only question is whether or
    8
    not an issue of material fact is presented. See TEX. R. CIV. P. 166a(c). Once the movant has
    established a right to summary judgment, the nonmovant has the burden to respond to the motion
    for summary judgment and present to the trial court any issues that would preclude summary
    judgment. See, e.g., City of Houston v. Clear Creek Basin Authority, 
    589 S.W.2d 671
    , 678–79
    (Tex. 1979). When a trial court’s order granting summary judgment does not specify the ground
    or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the
    theories advanced are meritorious. State Farm Fire & Cas. Co. v. S.S., 
    858 S.W.2d 374
    , 380
    (Tex. 1993).
    Appellees’ motion for summary judgment was based on their affirmative defense of
    release. A release is an agreement or contract in which one party agrees that a duty or obligation
    owed by the other party is discharged immediately on the occurrence of a condition. Dresser
    
    Indus., 853 S.W.2d at 508
    ; Williams v. Glash, 
    789 S.W.2d 261
    , 264 (Tex. 1990); Nat’l Union
    Fire Ins. Co. v. Ins. Co. of N. Am., 
    955 S.W.2d 120
    , 127 (Tex. App.–Houston [14th Dist.]
    1997), aff'd, 
    20 S.W.3d 692
    (Tex. 2000). A release extinguishes a claim or cause of action and
    bars recovery on the released matter. Dresser 
    Indus., 853 S.W.2d at 508
    .
    A release agreement, valid on its face, is, until set aside, a complete bar to any action
    based on matters covered in the release. Tamez v. SW Motor Transp., Inc., 
    155 S.W.3d 564
    ,
    569 (Tex. App.–San Antonio 2004, no pet.). To release a claim effectively, the releasing
    instrument must “mention” the claim to be released. 
    Brady, 811 S.W.2d at 938
    . Any claims not
    “clearly within the subject matter” of the release are not discharged, even if those claims exist
    when the release is executed. 
    Id. It is
    not necessary, however, for the parties to anticipate and
    explicitly identify every potential cause of action relating to the subject matter of the release.
    Keck, Mahin & Cate v. Nat’l Union Fire Ins. Co., 
    20 S.W.3d 692
    , 698 (Tex. 2000). Although
    releases generally contemplate claims existing at the time of execution, a valid release may also
    encompass unknown claims and damages that develop in the future. 
    Id. While Appellees
    have
    the burden of proving the affirmative defense of release, Lopez has the burden of proving that
    the release should be set aside. Sweeney v. Taco Bell, Inc., 
    824 S.W.2d 289
    , 291 (Tex. App.–
    Fort Worth 1992, writ denied).
    Like any other agreement, a release is subject to the rules of construction governing
    contracts, 
    Williams, 789 S.W.2d at 264
    , including the tenet that courts will not rewrite
    agreements to insert provisions parties could have included or to imply restraints for which they
    9
    have not bargained. Tenneco, Inc. v. Enterprise Prods. Co., 
    925 S.W.2d 640
    , 646 (Tex. 1996).
    When construing a contract, courts must give effect to the true intentions of the parties as
    expressed in the written instrument. Lenape Res. Corp. v. Tennessee Gas Pipeline Co., 
    925 S.W.2d 565
    , 574 (Tex. 1996). The contract must be read as a whole rather than by isolating a
    certain phrase, sentence, or section of the agreement. State Farm Life Ins. Co. v. Beaston, 
    907 S.W.2d 430
    , 433 (Tex. 1995). The language in a contract is to be given its plain grammatical
    meaning unless doing so would defeat the parties’ intent. DeWitt County Elec. Coop., Inc. v.
    Parks, 
    1 S.W.3d 96
    , 101 (Tex. 1999).
    In the case at hand, the undisputed summary judgment evidence supports that Lopez
    signed the agreement and that his negligence based claims are within the subject matter of the
    released claims. Lopez argues, however, that the release agreement should be set aside because
    (1) there is a fact issue concerning whether he had actual knowledge of the terms of the release
    agreement, (2) there is a fact issue regarding whether Lopez signed the agreement under duress,
    (3) Appellees failed to timely perform their obligations under the agreement or performed their
    obligations negligently, (4) the agreement is unconscionable, (5) the agreement fails to satisfy
    fair notice requirements, (6) Lopez’s longstanding employment relationship with Gary Hawley
    (Hawley) created an informal fiduciary duty upon Appellees requiring a duty of full disclosure
    on their part, which Appellees failed to fulfill, and (7) Appellees fraudulently induced Lopez to
    enter into the agreement.
    Lopez’s Actual Knowledge of the Terms of the Release Agreement
    Lopez first argues that there is an issue of material fact concerning whether he had actual
    knowledge of the terms of the release agreement. A release encompasses the contractual element
    of mutual intent and whether the minds of the parties have met. 
    Tamez, 155 S.W.3d at 570
    .
    Like Lopez, Tamez contended that because he was limited in his ability to read or write English,
    he was unable to understand a complex legal document such as a release agreement. See 
    id. The court
    of appeals in Tamez was not swayed by this argument. See 
    id. Similarly, based
    on the
    undisputed summary judgment evidence in this case, this court is not persuaded by Lopez’s
    argument.
    A person who signs a contract must be held to have known what words were used in the
    contract and to have known their meaning, and he must be held to have known and fully
    comprehended the legal effect of the contract. See 
    id. (citing Nguyen
    Ngoc Giao v. Smith &
    10
    Lamm, P.C., 
    714 S.W.2d 144
    , 146 (Tex. App.–Houston [1st Dist.] 1986, no writ)). Moreover,
    illiteracy is no defense and will not relieve a party of the consequences of the contract. 6 
    Tamez, 155 S.W.3d at 570
    .
    Here, the summary judgment evidence reflects Lopez executed the agreement with
    assistance from an interpreter and after having the opportunity to review the agreement over a
    period of months. Section D of the release agreement executed by Lopez states as follows:
    The undersigned further states that he has both read the foregoing Release and
    Agreement and has had the Release and Agreement read to him by a duly authorized and
    mutually-agreed upon interpreter, and knows the contents thereof, that he is aware of the legal
    consequences of the execution thereof and that he agrees to execute this Release and Agreement of
    his own free will.
    Like the court in Tamez, we conclude that even though English was not Lopez’s first language,
    he is presumed as a matter of law to have read and understood the contract unless he was
    prevented from doing so by trick or artifice.7
    Duress
    Lopez next argues that there is a material fact issue regarding whether he signed the
    agreement under duress. Specifically, Lopez contends that he was told by Hawley that he would
    not be permitted to return to work or to go on vacation until after he signed the agreement.
    Duress is an affirmative defense in confession and avoidance of the affirmative defense
    of release. Brown v. Cain Chem., Inc., 
    837 S.W.2d 239
    , 242–43 (Tex. App.–Houston [1st Dist.]
    1992, writ denied). Generally, when one coerces another to execute a contract by taking undue
    or unjust advantage of the person’s economic necessity or distress, the contract may be invalid or
    unenforceable. Wright v. Sydow, 
    173 S.W.3d 534
    , 543–44 (Tex. App.–Houston [14th Dist.]
    2004, pet. denied). This legal theory is called economic duress. 
    Id. at 544.
    It requires both the
    acts or conduct of the opposing party and the necessities of the alleged victim or his fear of what
    a third person might do. 
    Id. The victim's
    plight alone will not suffice; it must be coupled with
    the bad acts of the transgressor. 
    Id. The mere
    fact that a person enters into a contract with
    6
    Absent proof of mental incapacity, a person who signs a contract is presumed to have read and understood
    the contract, unless he was prevented from doing so by trick or artifice. See 
    Tamez, 155 S.W.3d at 570
    n.3.
    7
    Later in his brief, Lopez contends that Appellees fraudulently induced him to enter into the agreement.
    We recognize that the presumption that Lopez read and understood the contract could be rebutted based on our
    resolution of his fraud contentions.
    11
    reluctance or as a result of the pressure of business circumstances, financial embarrassment, or
    economic necessity does not, of itself, constitute business compulsion or economic duress
    invalidating the contract. See First Texas Sav. Ass'n of Dallas v. Dicker Ctr., Inc., 
    631 S.W.2d 179
    , 186 (Tex. App.–Tyler 1982, no writ).
    What constitutes duress is a question of law for the court. 
    Wright, 173 S.W.3d at 544
    .
    Economic duress consists of (1) a threat to do something a party has no legal right to do, (2) an
    illegal exaction or some fraud or deception, and (3) an imminent restraint that destroys the
    victim's free agency and leaves him without a present means of protection. 
    Id. Here, even
    if we were to agree that Hawley’s conduct amounted to a threat, there is no
    evidence that the threatened action was imminent. The deposition testimony of Norma Meeks,
    the interpreter, was unequivocal that no statement of any kind was made by Appellees
    concerning Lopez’s job being in jeopardy if he did not sign the agreement on the day the
    agreement was executed. On the other hand, Lopez’s deposition testimony regarding the timing
    of these “threats” is vague at best. According to Lopez’s testimony, any “threat” regarding his
    not being allowed to return to work unless he signed the agreement was made on or before
    February 2007. Lopez returned to work for Appellees on or about February 16, 2007 and
    continued to work for them while the parties negotiated the agreement.
    Furthermore, there is no indication from Lopez’s deposition testimony or elsewhere in
    the summary judgment record that any “threat” regarding his not being permitted to take
    vacation time until he signed the agreement was made near to or in conjunction with his
    execution of the agreement on May 10, 2007. Rather, according to Lopez’s testimony, Hawley
    made this statement to him at some point during the three month period of time when Lopez
    returned to work in February after Lopez made repeated requests that he be permitted to take
    vacation time. Lopez’s vague description concerning the timing of this supposed threat is not
    enough to demonstrate that the threatened action was imminent. Moreover, there is no evidence
    that Lopez, during the period of time leading up to his execution of the agreement, voiced his
    dissatisfaction either with the agreement’s terms or the statements he now claims constitute
    duress. See, e.g., Bank of El Paso v. T.O. Stanley Boot Co., 
    809 S.W.2d 279
    , 289–90 (Tex.
    App.–El Paso 1991), aff’d in part, rev’d in part on other grounds, 
    847 S.W.2d 218
    (Tex.1992);
    Coppedge-Link ex rel. Coppedge v. State Farm Life Ins. Co., No. 03-03-00574-CV, 
    2004 WL 1572913
    , at *7 (Tex. App.–Austin July 15, 2004, pet. denied) (mem. op.). Therefore, based on
    12
    our review of the summary judgment record, we hold that the threats alleged by Lopez do not
    create a material fact issue on Lopez’s affirmative defense of duress because there is no
    indication from the summary judgment record that the threatened actions were imminent.
    Appellees’ Failure to Perform or Negligent Performance of Their Contractual Obligations
    Lopez next argues that he was not obligated to perform under the release agreement or
    that the release should be set aside because Appellees failed to timely perform their obligations
    under the agreement or performed their obligations negligently. Specifically, Lopez argues that
    Appellees did not timely pay his medical bills.
    In construing a written contract, the primary concern of the court is to ascertain the true
    intentions of the parties as expressed in the instrument. Coker v. Coker, 
    650 S.W.2d 391
    , 393
    (Tex. 1983); see also Nat=l Union Fire Ins. Co. of Pittsburgh, PA v. CBI Industries, Inc., 
    907 S.W.2d 517
    , 520 (Tex. 1995). To achieve this objective, courts should 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. Nat=l Union Fire Ins. Co. of Pittsburgh, 
    PA, 907 S.W.2d at 520
    . No single provision taken alone will be given controlling effect; rather, all the provisions
    must be considered with reference to the whole instrument. Id.; Myers v. Gulf Coast Minerals
    Mgmt. Corp., 
    361 S.W.2d 193
    , 196 (Tex. 1962).
    If the written instrument is so worded that it can be given a certain or definite legal
    meaning or interpretation, then it is not ambiguous, and the court will construe the contract as a
    matter of law. 
    Coker, 361 S.W.2d at 393
    . The interpretation of an unambiguous contract is a
    question of law, which we review de novo. See MCI Telecommunications Corp. v. Tex. Utils.
    Elec. Co., 
    995 S.W.2d 647
    , 650 (Tex. 1999).
    In interpreting a contract, we must presume that the parties thereto intended every clause
    to have some effect; therefore, we consider each part of the document with every other part of
    the document so that the effect and meaning of one part on any other part may be determined.
    Thedford Crossing, L.P. v. Tyler Rose Nursery, Inc., 
    306 S.W.3d 860
    , 867 (Tex. App.–Tyler
    2010, pet. denied). Moreover, we give terms their plain, ordinary, and generally accepted
    meaning unless the instrument shows that the parties used such terms in a technical or different
    sense. 
    Id. Finally, we
    enforce an unambiguous agreement as written. 
    Id. We are
    not permitted
    to rewrite an agreement to mean something it did not. 
    Id. We cannot
    change the contract simply
    because we or one of the parties comes to dislike its provisions or thinks that something else is
    13
    needed in it. 
    Id. Parties to
    a contract are masters of their own choices and are entitled to select
    what terms and provisions to include in or omit from a contract. 
    Id. Here, Lopez
    advances several arguments based on timing of performance. He argues that
    Appellees failed to timely pay his medical bills and that their payment of his medical bills was a
    condition precedent to his obligations under the agreement.                      He further contends that the
    agreement contains no provision regarding the timing of Appellees’ payment of his medical bills
    and is, therefore, either an unenforceable agreement to agree or “void for indefiniteness.”
    The parties’ agreement stated, in pertinent part, as follows:
    For and in consideration of the sum of FIVE THOUSAND AND NO/100 DOLLARS,
    TO BE PAID IN $100.00 INCREMENTS ON A MONTHLY BASIS, the right and sufficiency of
    which are hereby acknowledged and confessed, the undersigned, MIGUEL LOPEZ
    …(hereinafter referred to as “Releasing Party”) does hereby fully release and forever discharge
    (except as expressly provided below) GARY HAWLEY and THE GARBAGE MAN, INC. and
    affiliate and subsidiary companies, corporations and entities, and all of their past, present and
    future officers, directors, agents, servants, legal representatives, employees, partners, predecessors,
    administrators and assigns (hereinafter “Released Parties”) of and from any and all claims, rights,
    actions and causes of action for property damage, personal injury, gross negligence, exemplary
    damages, loss of consortium, or any causes of action, if any, available to the Releasing Party under
    the Texas Insurance Code, Texas Common Law, Rules and Regulations of the Texas State Board
    of Insurance, The Texas Deceptive Trade Practices/Consumer Protection Act and the Common
    Law of Texas including the cause of action for Lack of Good Faith and Fair Dealing, treble and/or
    penalty damages, or any other relief, obligation, promises, judgments, contracts or execution, of
    any nature, in law or in equity, that the above-referenced claimants have asserted or may have the
    right to assert in the litigation set forth above, including any claims or counterclaims of any of the
    parties which were asserted or could have been asserted in the above-styled lawsuit, and any and
    all past, present and future claims, demands, debts, obligations, liability, rights, costs, expenses,
    compensation, actions or causes of action of any kind or character of damage, injury, harm,
    financial loss, medical expense, personal injury, property damage, interest or any other loss or
    damage whatsoever, and whether for compensatory [or] punitive damages, including, without
    limitation, any and all claims against which the RELEASING PARTY now has or may
    hereinafter acquire, or accrue on account of, or in any way growing out of, or incidental to the
    incident,8 whether the same be now known or realized.
    The Releasing Party expressly reserves the right, and the parties mutually agree to carve
    out from the release and settlement agreement Releasing Party’s claims, if any, to past medical
    expenses incurred and directly associated with the incident. The parties further agree to carve out
    any and all future treatment for injuries directly associated with the incident that are reasonably
    and medically necessary to treat the injuries provided that the Released Party is informed of the
    treatment in advance, and that the parties agree upon the chosen course of treatment.
    8
    The “incident” was previously defined as “injuries sustained by [Lopez] to his left hand on November 14,
    2006 while working for the Garbage Man, Inc.”
    14
    Certainty of Essential Contract Terms, Agreement to Agree in the Future, and
    Existence of a Condition Precedent
    A contract must be sufficiently definite in its terms so that a court can understand what
    the promissor undertook. T.O. Stanley Boot Co. v. Bank of El Paso, 
    847 S.W.2d 218
    , 221 (Tex.
    1992). If an alleged agreement is so indefinite as to make it impossible for a court to fix the
    legal obligations and liabilities of the parties, it cannot constitute an enforceable contract.
    Engelman Irrigation Dist. v. Shields Bros., 
    960 S.W.2d 343
    , 352 (Tex. App.–Corpus Christi
    1997), pet. denied per curiam, 
    989 S.W.2d 360
    (Tex. 1998). In order for a court to enforce a
    contract, the parties must agree to the material terms of the contract. T.O. Stanley 
    Boot, 847 S.W.2d at 221
    .
    Similarly, a contract providing for an agreement to be negotiated in the future is void.
    See Ski River Dev., Inc. v. McCalla, 
    167 S.W.3d 121
    , 133–34 (Tex. App.–Waco 2005, pet.
    denied). The parties, however, may agree on some terms sufficient to create a contract, leaving
    other provisions for later negotiation so long as those terms are not material or essential. 
    Id. at 134.
    However, those terms left for future negotiation are not part of the enforceable portion of
    the contract. See Killion v. Lanehart, 
    154 S.W.3d 183
    , 189 (Tex. App.–Amarillo 2004, pet.
    denied).
    Ordinarily, time is not of the essence of a contract, and failure to perform on the exact
    date agreed upon is not such a breach that justifies a cancellation. Laredo Hides Co., Inc. v. H
    & H Meat Products Co., Inc., 
    513 S.W.2d 210
    , 216 (Tex. Civ. App.–Corpus Christi 1974, writ
    ref’d n.r.e.). In order to make time of the essence of a contract, it must so provide by express
    stipulation, or there must be something in the nature of the subject matter, or connected with the
    purpose, of the contract and the circumstances surrounding it which makes it apparent that the
    parties intended that the contract be performed at or within the time specified. 
    Id. Any intention
    to make time of the essence in the performance of a contract must be clearly manifested from a
    consideration of the contract as a whole, and when that intention is not made clear by the
    language in the contract itself, the surrounding circumstances may be taken into consideration in
    determining that question. 
    Id. at 217.
           Moreover, conditions precedent to an obligation to perform under a contract are those
    acts or events occurring subsequent to the making of a contract that must occur before there is a
    right to immediate performance and before there is a breach of a contractual duty. See Beacon
    15
    Nat=l Ins. Co. v. Glaze, 
    114 S.W.3d 1
    , 2 (Tex. App.–Tyler 2003, pet. denied) (citing Hohenberg
    Bros. Co. v. George E. Gibbons & Co., 
    537 S.W.2d 1
    , 3 (Tex.1976)). In order to determine
    whether a condition precedent exists, the intention of the parties must be ascertained by looking
    to the contract as a whole. See Criswell v. European Crossroads Shopping Ctr., Ltd., 
    792 S.W.2d 945
    , 948 (Tex. 1990).        In construing a contract, forfeiture by finding a condition
    precedent is to be avoided when another reasonable reading of the contract is possible, when the
    intent of the parties is doubtful, or when a condition would impose an impossible or absurd
    result. 
    Criswell, 792 S.W.2d at 948
    .
    Here, the essence of the parties’ contract is Lopez’s agreeing to release Appellees from
    liability in exchange for Appellees’ agreeing to pay Lopez five thousand dollars in monthly
    increments of one hundred dollars. Based on our reading of the contract, there is no uncertainty
    concerning these terms, and, thus, there exists a valid contract.
    Appellees’ failure to timely pay Lopez’s medical bills as asserted by Lopez in his brief
    does not serve to derail the greater purpose embodied in the parties’ agreement. Appellees’
    payment of Lopez’s medical bills was not part of their consideration for Lopez’s agreement to
    release Appellees from liability. Rather, Lopez’s claims against Appellees for his medical bills,
    if any, were “carved out” of the claims Lopez agreed to release. In other words, Lopez did not
    agree to release those claims, if any. From our review of the contract as a whole, we conclude
    that the payment of Lopez’s medical bills is not one of Appellees’ obligations under the
    agreement, and is, therefore, not an essential term that requires a timing component. Nor is it a
    condition precedent to Lopez’s obligation to release Appellees.
    Furthermore, the summary judgment evidence supports that Appellees have fulfilled
    their obligation to Lopez under the agreement by paying him one hundred dollars monthly.
    Indeed, Lopez makes no contention in his brief that Appellees have failed to meet this obligation.
    Furthermore, we conclude that the obligation that Appellees pay Lopez monthly is sufficiently
    definite concerning their time of performance. Therefore, we hold that the essential terms of the
    parties’ agreement were sufficiently definite and that the undisputed summary judgment
    evidence supports that Appellees had met and continued to meet their contractual obligations to
    Lopez.
    16
    Unconscionability
    Lopez next argues that the agreement should not be enforced because it is unconscionable
    and that fact issues exist concerning whether Hawley took advantage of Lopez’s lack of
    knowledge, ability, experience, or capacity to a grossly unfair degree.
    Whether a contract is unconscionable is a question of law for the court to decide.
    Arthur's Garage, Inc. v. Racal-Chubb Sec. Sys., Inc., 
    997 S.W.2d 803
    , 815 (Tex. App.–Dallas
    1999, no pet.). “Unconscionability” has no precise legal definition because it is not a concept
    but a determination to be made in light of a variety of factors. 
    Id. In general,
    the term
    “unconscionability” describes a contract that is unfair because of its overall one-sidedness or the
    gross one-sidedness of its terms. 
    Id. Although no
    single test exists to determine if a contract is
    unconscionable, we begin with two questions: (1) How did the parties arrive at the terms in
    controversy; and (2) are there legitimate commercial reasons which justify the inclusion of those
    terms?       
    Id. at 815–16.
            The first question, described as the procedural aspect of
    unconscionability, is concerned with assent and focuses on the facts surrounding the bargaining
    process.      
    Id. at 816.
           The second question, described as the substantive aspect of
    unconscionability, is concerned with the fairness of the resulting agreement.
    By his claim of unconscionability, Lopez seeks to set aside the release. As such, his
    claim of unconsionability is an affirmative defense on which he has the burden of proof. See
    TEX. R. CIV. P. 94; Saenz v. Martinez, No. 04-07-00399, 
    2008 WL 4809217
    , at *8 (Tex. App.–
    San Antonio Nov. 5, 2008, no pet.) (mem. op.); 
    Sweeney, 824 S.W.2d at 291
    . If the party
    opposing a summary judgment relies on an affirmative defense, he must come forward with
    summary judgment evidence sufficient to raise an issue of fact on each element of the defense to
    avoid summary judgment. Brownlee v. Brownlee, 
    665 S.W.2d 111
    , 112 (Tex. 1984) (citing
    Clear Creek Basin 
    Authority, 589 S.W.2d at 678
    –79).
    In the case at hand, Lopez focuses heavily in his brief on legal authority he claims
    supports his position that the release agreement was unconscionable. However, Lopez wholly
    fails to cite to any summary judgment evidence to support his position.9 In the absence of any
    guidance from Lopez where the evidence supporting his unconscionability argument can be
    found, this court is not required to sift through a voluminous summary judgment record in search
    9
    The statement of facts in Lopez’s brief does not make mention of any details pertaining to the parties’
    negotiations leading up to the release agreement. Thus, we cannot rely on the facts and record citations set forth
    therein for guidance.
    17
    of evidence, if any, to support Lopez’s argument that a fact issue exists on this claim. See TEX.
    R. APP. P. 38.1(i); Aguilar v. Morales, 
    162 S.W.3d 825
    , 838 (Tex. App.–El Paso 2005, pet.
    denied). We hold that as a result of his failure to properly cite to summary judgment evidence in
    support of his position, Lopez has waived his unconscionability argument.
    Fair Notice
    Lopez further argues that the agreement fails to meet the fair notice requirements as set
    forth in Dresser Indus., Inc. v. Page Petroleum, Inc. The fair notice requirement includes the
    conspicuousness requirement and the express negligence doctrine. See Dresser 
    Indus., 853 S.W.2d at 508
    .
    Conspicuousness
    The conspicuousness requirement mandates that the indemnity and release agreement be
    noticeable to a reasonable person. 
    Id. More specifically,
    the supreme court in Dresser adopted
    the following definition of “conspicuous” as set forth in subsection 1.201(b)(10) of the Texas
    Business and Commerce Code:
    “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(b)(10) (Vernon 2009); Dresser 
    Indus., 853 S.W.2d at 509
    –10.
    In the case at hand, the parties’ agreement was entitled “RELEASE AND
    AGREEMENT.” Just as it appears in this opinion, the title heading was in all capital letters,
    was in bold typeface, and was underlined. The title appeared alone at the top of the document.
    The document itself was four pages in length and solely comprised the parties’ release and
    indemnity agreement. It was not buried or obfuscated by superfluous language or as part of a
    larger agreement between the parties. The subheadings “B. Release” and “C. Indemnity” were
    in bold typeface as they appear in this opinion and appeared on a separate line above the text
    18
    pertaining to them.         The language underlying the “Indemnity”10 section is particularly
    noteworthy since the entirety of the first paragraph of that section is written in all capital letters.
    This section begins, “FOR THE SAME CONSIDERATION, THE RELEASING PARTY
    HEREBY AGREES NEVER TO BRING SUIT IN ANY COURT AGAINST THE RELEASED
    PARTIES WITH RESPECT TO ANY CLAIM RELEASED HEREIN.” Based on our review of
    the agreement, we hold that it is written such that a reasonable person against whom it is to
    operate ought to have noticed it.
    Express Negligence Doctrine
    We next consider whether the agreement satisfied the express negligence doctrine.
    Under the express negligence doctrine, a party seeking indemnity for the consequences of its
    own negligence must express that intent in specific terms within the four corners of the contract.
    Ethyl Corp. v. Daniel Const. Co., 
    725 S.W.2d 705
    , 707–08 (Tex.1987); U.S. Rentals, Inc. v.
    Mundy Serv. Corp., 
    901 S.W.2d 789
    , 791 (Tex. App.–Houston [14th Dist.] 1995, writ denied).
    The test is whether the parties made it clear that their intent is to exculpate a party for its own
    negligence. See Atlantic Richfield Co. v. Petroleum Pers., Inc. 
    768 S.W.2d 724
    , 726 (Tex.
    1989).
    In the instant case, the agreement set forth Appellees’ intent in the first paragraph, in
    pertinent part, as follows:
    This is a release and settlement agreement between MIGUEL LOPEZ and GARY
    HAWLEY and THE GARBAGE MAN, INC. (collectively “the parties”)…. [T]his release and
    settlement agreement will act to release GARY HAWLEY and THE GARBAGE MAN, INC.
    from any and all claims that may be brought by MIGUEL LOPEZ for any and all injuries and
    damages, based on claims of negligence, gross negligence, or otherwise, suffered or incurred by
    MIGUEL LOPEZ on November 14, 2006 while performing work-place duties for THE
    GARBAGE MAN, INC., specifically including, but not limited to injuries sustained on
    November 14, 2006 to the left hand of MIGUEL LOPEZ.
    Furthermore, in the section entitled “Release,” the agreement stated in pertinent part, as
    follows:
    MIGUEL LOPEZ, his heirs, executors, administrators, estate, legal representatives,
    assigns[,] and all others claiming under him (hereinafter referred to as “Releasing Party”) does
    hereby fully release and forever discharge (except as expressly provided below) GARY
    HAWLEY and THE GARBAGE MAN, INC. and affiliate and subsidiary companies,
    10
    We recognize that Lopez’s agreement to indemnify Appellees is not at issue. However, the language in
    the section is relevant to the issue of release.
    19
    corporations and entities, and all of their past, present and future officers, directors, agents,
    servants, legal representatives, employees, partners, predecessors, administrators and assigns
    (hereinafter “Released Parties”) of and from any and all claims, rights, actions and causes of
    action for property damage, personal injury, gross negligence, exemplary damages, [and] loss of
    consortium….
    Based on our review of the parties’ agreement, we hold that the terms of the agreement
    make it clear that the parties’ intent was to exculpate Appellees for their own negligence.
    Actual Knowledge
    Of course, we cannot overlook that the degree of conspicuousness or specificity of terms
    is of limited application here because it is undisputed that Lopez did not read or understand
    English. Nonetheless, we have previously held that Lopez is presumed as a matter of law to
    have read and understood the contract unless he was prevented from doing so by trick or artifice.
    See 
    Tamez, 155 S.W.3d at 570
    . As such, Lopez’s actual knowledge of the release negates the
    common law fair notice requirements of conspicuousness and the express negligence rule. See
    Storage & Processors, Inc. v. Reyes, 
    134 S.W.3d 190
    , 192 (Tex. 2004) (“[I]f both contracting
    parties have actual knowledge of the [agreement’s] terms, [it] can be enforced even if the fair
    notice requirements were not satisfied[.]”); Dresser 
    Indus., 853 S.W.2d at 508
    n.2.
    Fiduciary Relationship
    Lopez next argues that this court should impose an informal fiduciary duty on Appellees
    because of the “special relationship of trust and confidence” that existed between Lopez and
    Appellees prior to and apart from the execution of the agreement. Specifically, Lopez argues
    that Appellees paid his medical bills related to a previous work related injury he suffered in
    August 2005 and he had no reason to suspect that Appellees would not pay for all of the medical
    bills he incurred as a result of the injury he received on November 14, 2006.11 As a result, Lopez
    contends that he relied upon what Hawley told him he would receive in exchange for signing the
    agreement and signed the agreement based on the trust he placed in Hawley. Lopez further
    argues that this fiduciary relationship existed based on his having known Hawley prior to their
    working relationship and notes that Hawley encouraged him to learn English so that he might be
    eligible for a promotion.
    It is well settled that “not every relationship involving a high degree of trust and
    confidence rises to the stature of a fiduciary relationship.” Meyer v. Cathey, 
    167 S.W.3d 327
    ,
    11
    We note that Lopez has not argued on appeal that Appellees failed to pay his medical bills.
    20
    330 (Tex. 2005); Schlumberger Tech. Corp. v. Swanson, 
    959 S.W.2d 171
    , 176–77 (Tex. 1997).
    Where the underlying facts are undisputed, determination of the existence, and breach, of
    fiduciary duties are questions of law, exclusively within the province of the court. 
    Cathey, 167 S.W.3d at 330
    ; Nat'l Med. Enters. v. Godbey, 
    924 S.W.2d 123
    , 147 (Tex. 1996). In certain
    formal relationships, such as an attorney-client or trustee relationship, a fiduciary duty arises as a
    matter of law. Johnson v. Brewer & Pritchard, P.C., 
    73 S.W.3d 193
    , 199 (Tex. 2002); see also
    Ins. Co. of N. Am. v. Morris, 
    981 S.W.2d 667
    , 674 (Tex. 1998).
    We also recognize the existence of an informal fiduciary duty that arises from a moral,
    social, domestic, or purely personal relationship of trust and confidence. See 
    Cathey, 167 S.W.3d at 331
    ; Associated Indem. Corp. v. CAT Contracting, Inc., 
    964 S.W.2d 276
    , 287 (Tex.
    1998); see also Schlumberger Tech. 
    Corp., 959 S.W.2d at 176
    . However, in order to give full
    force to contracts, we do not create such a relationship lightly. Schlumberger Tech. 
    Corp., 959 S.W.2d at 177
    . To impose an informal fiduciary duty in a business transaction, the special
    relationship of trust and confidence must exist prior to, and apart from, the agreement made the
    basis of the suit. 
    Cathey, 167 S.W.3d at 331
    .
    In Cathey, the supreme court reversed the court of appeals’ holding that an informal
    fiduciary relationship existed based on a business relationship. See 
    id. at 333.
    In that case,
    Meyer hired Cathey and (1) the two worked on real estate development projects together for
    three years, (2) Cathey had a five percent partnership interest with Meyer in one of the prior
    projects, (3) Cathey trusted Meyer, and, (4) Cathey and Meyer were friends and frequent dining
    partners. See 
    id. at 330–31.
    Here, Lopez’s relationship with Hawley is more attenuated than the
    relationship between Cathey and Meyer. While Hawley testified at his deposition that he knew
    Lopez “long before hiring him[,]” there is no evidence concerning the degree of their
    relationship before Lopez worked for Appellees. Rather, Hawley testified that he knew Lopez
    because Lopez’s children were in a youth group with which Hawley worked. Moreover, the
    summary judgment evidence does not demonstrate that the business relationship between Lopez
    and Hawley was of any greater significance than the business relationship between Meyer and
    Cathey. The business relationship between Meyer and Cathey involved the two working on real
    estate development projects together as well as a partnership agreement between the two on one
    of the projects. 
    Id. at 330.
    Lopez worked for Appellees, but there is no evidence that he and
    Hawley worked closely with one another. Finally, the fact that Lopez trusted Hawley simply
    21
    does not transform their employer-employee relationship into a fiduciary relationship. 
    Id. at 331.
    Therefore, we conclude that the summary judgment evidence does not support that Hawley or
    any of the other Appellees owed Lopez a fiduciary duty. 
    Id. Fraudulent Inducement
           Finally, Lopez argues that he was fraudulently induced to execute the agreement. Fraud
    is an affirmative defense to a party’s failure to perform its obligation under a contract. See TEX.
    R. CIV. P. 94; see also 
    Sweeney, 824 S.W.2d at 291
    ; Deer Creek Ltd. v. North Am. Mortg. Co.,
    
    792 S.W.2d 198
    , 201 (Tex. App.–Dallas 1990, no writ) (claim that release may be set aside if
    fraudulently induced is affirmative defense in nature of confession and avoidance). Accordingly,
    Lopez was required to come forward with summary judgment evidence sufficient to raise an
    issue of fact on each element of the defense to avoid summary judgment. See 
    Brownlee, 665 S.W.2d at 112
    .
    Once again, similar to his briefing of the issue of unconscionability, Lopez fails to cite to
    any summary judgment evidence to support his contentions that he was fraudulently induced to
    execute the agreement. We iterate that in the absence of any guidance from Lopez where the
    evidence supporting his fraudulent inducement argument can be found, this court is not required
    to sift through a voluminous summary judgment record in search of evidence, if any, to support
    Lopez’s argument that a fact issue exists on this claim. See TEX. R. APP. P. 38.1(i); 
    Morales, 162 S.W.3d at 838
    . We hold that as a result of his failure to properly cite to summary judgment
    evidence in support of his position, Lopez has waived his fraudulent inducement argument.
    Summation
    Based on our review of the summary judgment record, we conclude the undisputed
    summary judgment evidence supports that Lopez signed the agreement and that his negligence
    based claims are within the subject matter of the release contained therein. We further conclude
    that Appellees’ motion demonstrated that, based on this undisputed evidence, they were entitled
    to judgment as a matter of law. Lopez’s several arguments on appeal that the release agreement
    should be set aside have either been waived or fail as a matter of law. Accordingly, we hold that
    the trial court did not err in granting Appellees’ Third Amended Motion for Summary Judgment.
    Lopez’s second issue is overruled. To the extent that any of Lopez’s objections to Appellees’
    motion for summary judgment were dependent on our resolution of Lopez’s second issue, we
    hold that the trial court did not abuse its discretion in overruling those objections.
    22
    LOPEZ’S NO EVIDENCE MOTION FOR SUMMARY JUDGMENT
    In his third issue, Lopez argues that the trial court erroneously denied his no evidence
    motion for summary judgment. After adequate time for discovery, a party without presenting
    summary judgment evidence may also move for summary judgment on the ground that there is
    no evidence of one or more essential elements of a claim or defense on which an adverse party
    would have the burden of proof at trial. TEX. R. CIV. P. 166a(i). The motion must state the
    elements as to which there is no evidence. 
    Id. Once a
    no evidence motion has been filed in
    accordance with rule 166a(i), the burden shifts to the nonmovant to bring forth evidence that
    raises a fact issue on the challenged evidence. See Macias v. Fiesta Mart, Inc., 
    988 S.W.2d 316
    ,
    316–17 (Tex. App.–Houston [14th Dist.] 1999, no pet.).
    In the case at hand, Lopez filed a purported no evidence motion for summary judgment
    arguing that Appellees had no evidence to support their affirmative defense of release in light of
    the requirements of Texas Labor Code, subsections 406.033(f) and (g). Lopez specifically
    acknowledges the existence of the release in his motion, but argues extensively that the motion
    should be set aside for its failure to comply with subsections 406.033(f) and (g). Rule 166a(i)
    entitles Lopez to move for a no evidence motion for summary judgment on the essential
    elements of a claim or defense on which Appellees would have the burden of proof at trial. See
    TEX. R. CIV. P. 166a(i). Here, if we construe Lopez’s motion only under rule 166a(i), we must
    hold that the trial court properly denied his motion since Lopez, not Appellees, bore the burden
    of proving that the release should be set aside. See 
    Sweeney, 824 S.W.2d at 291
    . However, it is
    clear from the substance of the motion that it should, in the interest of justice, be construed as
    both a no evidence and a traditional motion for summary judgment. See, e.g., Binur v. Jacobo,
    
    135 S.W.3d 646
    , 650 (Tex. 2004).
    When parties file cross motions for summary judgment, each party in support of its own
    motion necessarily takes the position that there is no genuine issue of fact in the case and that it
    is entitled to judgment as a matter of law. Ackermann v. Vordenbaum, 
    403 S.W.2d 362
    , 364
    (Tex.1966); Lambrecht & Associates, Inc. v. State Farm Lloyds, 
    119 S.W.3d 16
    , 20 (Tex.
    App.–Tyler 2003, no pet.). If one motion is granted and the other denied, we must review the
    summary judgment evidence presented by both sides and determine all questions presented.
    Commissioners Court of Titus County v. Agan, 
    940 S.W.2d 77
    , 81 (Tex. 1997). In so doing, we
    first review the order granting summary judgment, and if we determine the order was erroneous,
    23
    we review the trial court's action in overruling the denied motion. 
    Lambrecht, 119 S.W.3d at 20
    .
    We may then either affirm the judgment or reverse and render the judgment the trial court should
    have rendered, including one that denies both motions. 
    Id. We may
    also render judgment for the
    other movant, provided that both parties sought final judgment relief in their cross motions for
    summary judgment. 
    Id. In the
    case at hand, many of the requirements set forth above have already been
    addressed in our discussion of Appellees’ motion for summary judgment. In the interest of
    clarity and to the extent that there exist minor variances between our discussion of Lopez’s
    common law defenses to release and the requirements of subsections 406.033(f) and (g), we will
    address each subsection in turn and refer back to our discussion of Lopez’s second issue where
    appropriate.
    Subsections 406.033(f) and (g) state as follows:
    (f) A cause of action described by Subsection (a) may not be waived by an employee
    after the employee's injury unless:
    (1) the employee voluntarily enters into the waiver with knowledge of the
    waiver's effect;
    (2) the waiver is entered into not earlier than the 10th business day after the date
    of the initial report of injury;
    (3) the employee, before signing the waiver, has received a medical evaluation
    from a nonemergency care doctor; and
    (4) the waiver is in a writing under which the true intent of the parties is
    specifically stated in the document.
    (g) The waiver provisions required under Subsection (f) must be conspicuous and appear
    on the face of the agreement. To be conspicuous, the waiver provisions must appear in a type
    larger than the type contained in the body of the agreement or in contrasting colors.
    TEX. LABOR CODE ANN. § 406.033(f), (g) (Vernon 2006).
    The Employee Voluntarily Enters into the Waiver with Knowledge of the Waiver's Effect
    As set forth previously, the summary judgment evidence indicates that Meeks provided
    translation services to Lopez in conjunction with his execution of the agreement. Meeks testified
    that she gave Lopez a literal translation of the document. Section D of the agreement states as
    follows:
    The undersigned further states that he has both read the foregoing Release and
    Agreement and has had the Release and Agreement read to him by a duly authorized and
    mutually-agreed upon interpreter, and knows the contents thereof, that he is aware of the legal
    24
    consequences of the execution thereof and that he agrees to execute this Release and Agreement of
    his own free will.
    (emphasis added). Thus, based on the plain language of the parties’ agreement, Lopez knew the
    contents of the agreement, understood the consequences of his execution of the agreement, and
    made the agreement of his own free will. As before, we conclude that even though English was
    not Lopez’s first language, based on the summary judgment evidence, he is presumed as a matter
    of law to have read and understood the contract unless he was prevented from doing so by trick
    or artifice. See 
    Tamez, 155 S.W.3d at 570
    . We conclude that subsection 406.033(f)(1) is
    supported by the undisputed summary judgment evidence.
    Timing of Agreement Compared to Date of Initial Report of Injury
    The summary judgment evidence reflects that Lopez’s injury occurred on November 14,
    2006. Lopez testified in his deposition that he reported the injury that same day. Lopez
    executed the agreement on May 10, 2007. Thus, we conclude that subsection 406.033(f)(2) is
    supported by the undisputed summary judgment evidence.
    Receipt of a Medical Evaluation From Nonemergency Care Doctor
    Lopez’s deposition testimony reflects that he spent eight days in the hospital following
    the accident and was seen by a doctor after his release from the hospital. We conclude that
    subsection 406.033(f)(3) is supported by the undisputed summary judgment evidence.
    Release Written and States Parties’ True Intent
    The release agreement is in writing. Furthermore, as set forth in our discussion of
    Lopez’s second issue, the agreement set forth Appellees’ intent in the first paragraph, in pertinent
    part, as follows:
    This is a release and settlement agreement between MIGUEL LOPEZ and GARY
    HAWLEY and THE GARBAGE MAN, INC. (collectively “the parties”)…. [T]his release and
    settlement agreement will act to release GARY HAWLEY and THE GARBAGE MAN, INC.
    from any and all claims that may be brought by MIGUEL LOPEZ for any and all injuries and
    damages, based on claims of negligence, gross negligence, or otherwise, suffered or incurred by
    MIGUEL LOPEZ on November 14, 2006 while performing work-place duties for THE
    GARBAGE MAN, INC., specifically including, but not limited to injuries sustained on
    November 14, 2006 to the left hand of MIGUEL LOPEZ.
    Furthermore, in the section entitled “Release,” the agreement stated in pertinent part, as
    follows:
    25
    MIGUEL LOPEZ, his heirs, executors, administrators, estate, legal representatives,
    assigns[,] and all others claiming under him (hereinafter referred to as “Releasing Party”) does
    hereby fully release and forever discharge (except as expressly provided below) GARY
    HAWLEY and THE GARBAGE MAN, INC. and affiliate and subsidiary companies,
    corporations and entities, and all of their past, present and future officers, directors, agents,
    servants, legal representatives, employees, partners, predecessors, administrators and assigns
    (hereinafter “Released Parties”) of and from any and all claims, rights, actions and causes of
    action for property damage, personal injury, gross negligence, exemplary damages, [and] loss of
    consortium….
    We conclude that subsection 406.033(f)(4) is supported by the undisputed summary judgment
    evidence.
    Conspicuousness
    We have previously held that the release was sufficiently conspicuous under Texas
    Business and Commerce Code, subsection 1.201(b)(10). Considering the release pursuant to
    subsection 406.003(g), we note that the release provisions appear on the face of the agreement.
    Furthermore, the waiver provisions appear in a type larger than the type contained in the body of
    the agreement. As set forth in our consideration of Lopez’s second issue, the agreement contains
    the following language in all capital letters: “FOR THE SAME CONSIDERATION, THE
    RELEASING PARTY HEREBY AGREES NEVER TO BRING SUIT IN ANY COURT
    AGAINST THE RELEASED PARTIES WITH RESPECT TO ANY CLAIM RELEASED
    HEREIN.” Based on our review of the agreement, this language properly embodies the “waiver
    provisions” set forth in the agreement and appears to this court to be printed in larger type than
    that contained in the body of the agreement. Therefore, we conclude that subsection 406.033(g)
    is supported by the undisputed summary judgment evidence.
    Summation
    Because we have concluded that subsections 406.033(f) and (g) are supported by the
    undisputed summary judgment evidence, we hold that the trial court did not err in denying
    Lopez’s motion for summary judgment. Lopez’s third issue is overruled.
    BRENDA HAWLEY’S NO EVIDENCE MOTION FOR SUMMARY JUDGMENT
    In his fourth issue, Lopez argues that the trial court erred in granting Brenda Hawley’s no
    evidence motion for summary judgment. The record reflects that the trial court signed its order
    granting summary judgment in Brenda Hawley’s favor on May 9, 2008. The trial court’s order
    26
    further stated that “Plaintiff’s causes of action as against Defendant Brenda Hawley are ordered
    severed from the case in chief and are therefore DISMISSED WITH PREJUDICE AS TO
    THE REFILING OF THE SAME.”
    When a severance order takes effect, the appellate timetable runs from the signing date of
    the order that made the judgment severed final and appealable. See Martinez v. Humble Sand &
    Gravel, Inc., 
    875 S.W.2d 311
    , 313 (Tex. 1994). An order severing part of a lawsuit is effective
    when it is signed. See McRoberts v. Ryals, 
    863 S.W.2d 450
    , 452–53 (Tex. 1993). Thus, to
    timely appeal the trial court’s grant of summary judgment in Brenda Hawley’s favor, Lopez was
    required to file a notice of appeal on or before June 9, 2008.12 Lopez filed his notice of appeal on
    or about September 24, 2008. Therefore, Lopez did not timely appeal the trial court’s order
    granting summary judgment in Brenda Hawley’s favor. See TEX. R. APP. P. 26.1 Accordingly,
    we are without jurisdiction to consider Lopez’s fourth issue. See TEX. R. APP. P. 25.1.
    CONCLUSION
    We lack jurisdiction to consider Lopez’s fourth issue. Accordingly, we dismiss Lopez’s
    appeal for want of jurisdiction insofar as it pertains to the trial court’s summary judgment
    entered in favor of Brenda Hawley. Having overruled Lopez’s first, second, and third issues, we
    affirm the trial court’s judgment.
    JAMES T. WORTHEN
    Chief Justice
    Opinion delivered March 31, 2011.
    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
    (PUBLISH)
    12
    Lopez filed a motion to reconsider pertaining to Brenda Hawley’s no evidence motion on July 31, 2008.
    Because this motion was not timely, see TEX. R. CIV. P. 329b(a), it did not extend the appellate timetables. In any
    event, Lopez’s notice of appeal was filed more than ninety days after the trial court signed its order granting
    summary judgment in Brenda Hawley’s favor and severing Lopez’s cause of action against her. See TEX. R. APP.
    P. 26.1(a).
    27