Rebecca De La Rosa and Cesar De La Rosa v. Jason Matthew Avery and Wife, Kacie Hope Avery

NO. 12-24-00111-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

REBECCA DE LA ROSA AND CESAR § APPEAL FROM THE 273RD
DE LA ROSA,
APPELLANTS

V. § JUDICIAL DISTRICT COURT

JASON MATTHEW AVERY AND
WIFE, KACIE HOPE AVERY,
APPELLEES § SHELBY COUNTY, TEXAS

MEMORANDUM OPINION

Rebecca De La Rosa and Cesar De La Rosa (collectively Appellants) appeal the trial court’s
summary judgment entered in favor of Appellees Kacie Hope Avery and Jason Matthew Avery
(collectively the Averys). In one issue, Appellants argue that the trial court erred in granting
summary judgment because there is a genuine issue of material fact regarding enforceability of the
waiver-of-reliance clause in the release. We affirm.

BACKGROUND
On February 26, 2020, Heston Avery decided to play a prank on A.D.L.R., a friend who
came to his house to visit. In so doing, he pointed a shotgun at A.D.L.R. Heston did not believe
the shotgun was loaded when he pulled the trigger. The shotgun was, in fact, loaded. It fired.
A.D.L.R. later died from his wounds.
Robert Avery, Heston’s grandfather, gave Heston the shotgun in 2015, when Heston was
twelve or thirteen-years-old and living in Temple, Texas. Because Heston’s parents, the Averys,

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would not allow him to keep the shotgun at their house, Robert kept the gun at his home until the
Averys and Heston moved to Joaquin, Texas in late 2018, at which point Robert gave it to Heston
to take with him.
Appellants filed the instant suit against Heston, the Averys, and Robert. As to the Averys,
Appellants alleged that they were negligent in allowing Heston to possess the shotgun used to kill
A.D.L.R. because they knew or should have known that, due to his youth, inexperience,
immaturity, reckless nature, complex developmental trauma, attention deficit disorder, and/or other
factors, Heston likely would use the shotgun in a manner involving unreasonable risk of harm to
himself or others. Appellants similarly alleged that Robert was negligent in that he gave Heston
the shotgun.
After settling and dismissing their case against Robert, Appellants agreed to settle their
claims against the Averys for $25,000. Appellants signed a release and an agreed judgment, by
which Appellants’ case against the Averys was dismissed with prejudice on July 27, 2022. Their
suit against Heston, the sole remaining defendant, continued.
Thereafter, Appellants received discovery responses comprising twelve pages of
documents from Miracle Farm, Inc., a residential boys ranch Heston attended between 2018 and
2019. Appellants’ counsel notified Robert’s counsel that this discovery proved that Robert gave
false and incomplete deposition testimony and untruthful interrogatory answers. He further
suggested in this letter that Appellants reasonably relied on Robert’s sworn testimony and
discovery responses in making their decision to settle the case against him, none of the information
revealed in the Miracle Farm documents was part of settlement negotiations, and they believed
that the “boilerplate” settlement and release were procured by Robert’s fraud and fraudulent
inducement. Appellants’ counsel further related that Appellants asked him to take “all appropriate
legal actions against [Robert] and Miracle Farm, Inc., including recission of the settlement
agreement and release and a separate lawsuit to recover actual and punitive damages.” Appellants’
counsel subsequently sent an email to the Averys’ trial counsel with this letter to Robert’s counsel
as an attachment. In the email, Appellants’ counsel stated, “Please see attached letter to [Robert’s
attorney] as it is relevant to our case also.”
Soon thereafter, the Averys intervened in the still-pending suit between Appellants and
Heston and sought a declaratory judgment that the agreed take-nothing judgment and release are
binding upon Appellants, final, and serve to conclude the litigation between the parties.

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Subsequently, they filed a traditional motion for summary judgment, in which they argued that
Appellants’ claims were barred by res judicata and, further, that they were entitled to a declaratory
judgment that the release and agreed, final, take-nothing judgment bars Appellants from seeking
recission of the release and final judgment. Appellants responded, and, ultimately, the trial court
granted the Averys’ motion for summary judgment and severed the cause between Appellants and
the Averys from their suit against Heston.
Appellants appealed to this court. See De La Rosa v. Avery, No. 12-23-00140-CV, 2023
WL 7173993, at *1 (Tex. App.–Tyler Oct. 31, 2023, no pet.) (mem. op.). In that appeal, we agreed
with Appellants that res judicata did not apply and, further, held that the Averys were not entitled
to summary judgment with regard to the “waiver-of-reliance” provision in the release because they
failed to make any argument in their motion for summary judgment in support of such a finding.
See id. at *3, 5. We rejected Appellants’ remaining arguments and reversed the cause in part for
further proceedings consistent with our opinion. 1 See id. at *8.
On remand, the Averys filed their first amended petition in intervention for declaratory
relief, in which they sought a declaration that the settlement agreement and release are valid and
binding on Appellants. Thereafter, the Averys filed a motion for summary judgment. Appellants
responded and argued, in part that the waiver-of-reliance clause in the release is invalid because
there are genuine issues of material fact regarding whether, during settlement negotiations, the
parties discussed the issue which became the topic of the subsequent dispute. Ultimately, the trial
court granted the Averys’ motion for summary judgment, and this appeal followed.

RELEASE - WAIVER-OF-RELIANCE PROVISION
In their sole issue, Appellants argue that the trial court erred in granting summary judgment
because there is a genuine issue of material fact regarding enforceability of the waiver-of-reliance
clause in the release. Specifically, they argue that the summary judgment evidence supports that
there were genuine issues of material fact regarding whether, during settlement negotiations, the
parties discussed the issue which became the topic of the subsequent dispute.

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Robert also intervened and sought a declaratory judgment that the partial take-nothing judgment and release
are binding upon Appellants, final, and serve to conclude the litigation between the parties. The trial court granted
summary judgment in Robert’s favor and issued a severance order as to his declaratory-judgment action. Appellants
appealed and based on the merits of the “waiver-of-reliance” provision in the release, we affirmed the trial court’s
judgment. See De La Rosa v. Avery, No. 12-23-00112-CV, 2023 WL 7178022, at *4–7, 9 (Tex. App.–Tyler Oct. 31,
2023, no pet.) (mem. op.).

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Standard of Review
The movant for traditional summary judgment has the burden of showing that there is no
genuine issue of material fact and that she is entitled to judgment as a matter of law. See TEX. R.
CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). When the
plaintiff moves for summary judgment, the plaintiff must conclusively prove all elements of its
cause of action as a matter of law. Lujan v. Navistar Fin. Corp., 433 S.W.3d 699, 704 (Tex. App.–
Houston [1st Dist.] 2014, no pet.). A matter is conclusively proven if ordinary minds could not
differ as to the conclusion to be drawn from the evidence. Id. Once the movant establishes a right
to summary judgment, the nonmovant has the burden to respond to the motion and present to the
trial court any issues that would preclude summary judgment. See City of Houston v. Clear Creek
Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979). The only question is whether an issue of
material fact is presented. See TEX. R. CIV. P. 166a(c).
When reviewing summary judgments, we perform a de novo review of the entire record in
the light most favorable to the nonmovant, indulging every reasonable inference and resolving any
doubts against the motion. See Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); KPMG Peat
Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). 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,
252 S.W.2d 929, 932 (Tex. 1952); Palestine Herald-Press Co. v. Zimmer, 257 S.W.3d 504, 508
(Tex. App.–Tyler 2008, pet. denied).
Governing Law
Texas law encourages parties to resolve their disputes by agreement, but settlement
agreements—like all other contracts—are unenforceable if they are procured by fraud. Italian
Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 331 (Tex. 2011);
Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 178 (Tex. 1997). To establish such
fraudulent inducement, a party seeking to invalidate an agreement must prove that it reasonably
relied on the other party’s misrepresentations to its detriment. Int’l Bus. Machs. Corp. v. Lufkin
Indus., LLC, 573 S.W.3d 224, 228 (Tex. 2019); Italian Cowboy, 341 S.W.3d at 337 (quoting
Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774 (Tex. 2009)). Because after-
the-fact protests of misrepresentation easily are lodged, parties who mutually desire to resolve all
disputes and buy complete and final peace often include provisions in their settlement agreements

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expressly disclaiming any reliance on each other’s representations. See Forest Oil Corp. v.
McAllen, 268 S.W.3d 51, 60 (Tex. 2008); see also Transcor Astra Group S.A. v. Petrobras Am.
Inc., 650 S.W.3d 462, 473 (Tex. 2022).
The law must balance society’s interest in protecting parties against fraudulently induced
promises with its interest in enabling parties to “fully and finally resolve disputes between them.”
Schlumberger, 959 S.W.2d at 179. To achieve this balance, we have held that contractual
disclaimers of reliance may be enforceable and may negate a subsequent fraudulent-inducement
claim if the disclaimer is clear, specific, and unequivocal. See Lufkin, 573 S.W.3d at 229; Italian
Cowboy, 341 S.W.3d at 336; Forest Oil, 268 S.W.3d at 60; Schlumberger, 959 S.W.2d at 179.
Whether a reliance disclaimer is effective in any given case “depends on the contract’s language
and the totality of the surrounding circumstances.” Lufkin, 573 S.W.3d at 226; Forest Oil, 268
S.W.3d at 60; Schlumberger, 959 S.W.2d at 179. Specifically, courts must consider whether:

(1) the terms of the contract were negotiated, rather than boilerplate, and during negotiations, the
parties specifically discussed the issue which has become the topic of the subsequent dispute;

(2) the complaining party was represented by counsel;

(3) the parties dealt with each other at arm’s length;

(4) the parties were knowledgeable in business matters; and

(5) the release language was clear.

Forest Oil, 268 S.W.3d at 60.
In considering these factors, our ultimate purpose is to determine whether the contract
clearly confirms that “the parties intended once and for all to resolve specific disputes.” Italian
Cowboy, 341 S.W.3d at 335; see also Forest Oil, 268 S.W.3d at 58; Schlumberger, 959 S.W.2d at
181. As to the first factor, when parties expressly discuss material issues during contract
negotiations but nevertheless elect to include waiver-of-reliance and release-of-claims provisions,
we generally will uphold the contract. See Transcor Astra Group S.A., 650 S.W.3d at 475.
Ultimately, the question is whether the circumstances and nature of the parties’ settlement
discussions demonstrates that the parties considered the consequences of the reliance disclaimer
in light of the material issues of the dispute, which supports the conclusion that an “all-embracing
disclaimer of any and all representations” actually shows the parties’ clear intent. Id.

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Discussion
In the instant case, Appellants contend that the waiver-of-reliance provision 2 is ineffective
and unenforceable. In support of their argument, they do not contend that the terms of the contract
were “boilerplate” or that they were not represented by counsel, nor do they dispute that they dealt
with the Averys at “arm’s length,” that they were not knowledgeable in business matters, or that
the release language was unclear. Instead, they only argue that, based on the summary judgment
evidence, there were genuine issues of material fact regarding whether, during settlement
negotiations, the parties discussed the issue which became the topic of the subsequent dispute. In
support of their motion for summary judgment, the Averys included numerous emails between the
parties, which memorialize their negotiations, and which ultimately resulted in the settlement
agreement and release at issue. 3
Appellants’ counsel initiated these settlement negotiations by an email dated June 23, 2022,
in which he stated, in pertinent part, as follows:

Thank you for your call last week to discuss this case and the possibility of resolving the
claims against your clients, Kacie Avery and Jason Avery. Subsequent to our call, I discussed the
case at length with my clients, Rebecca De La Rosa and Cesar De La Rosa, and was given the
authority to settle all claims against only your clients . . . for $150,000.00. This offer is primarily
based on the representation that there is no applicable insurance to cover the losses sustained
by the De La Rosa’s due to the shooting death of their son, Angel De La Rosa by Heston Avery, the
then minor son of Kacie and Jason. The offer does not apply to the claims against Heston Avery.

As you may know, a parent may be directly liable to a third party when the parent
negligently permits the child to act in a manner likely to cause injury to another. Such
negligence may be shown where the parent entrusts a child with a dangerous instrumentality
or carelessly fails to restrain a child known to have dangerous tendencies [citations omitted].

Robert D. Avery, Heston’s grandfather[,] who gave him the shotgun involved in the
shooting, has testified that the shotgun was a dangerous instrumentality. This is also common
knowledge. Heston was allowed to keep the shotgun, as well as the ammunition for it, together
in his room. Heston was a troubled child[,] who should not have been given unrestricted access
to the shotgun. We, therefore, believe that there is a good chance that Kacie and Jason will be
found responsible for the shooting death of Angel De La Rosa. Please relay this settlement offer to
your clients and give me a response by July 5, 2022.

2
Specifically, the provision states, “Claimants are not relying upon any statement or representation of the
Parties Released, or of any agent or servant of the Parties Released, but is [sic] relying upon their own judgment[.]”
3
Some of these emails simply referred to attachments consisting of more formal letters addressed to the email
recipient. For ease of reference, we refer to these communications as emails, regardless of whether the
communications took place in the body of the email or within the attachment thereto.

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(emphasis added). The record reflects that, after further negotiations, the parties agreed to settle
the matter for $25,000.00. Thereafter, numerous emails were exchanged to negotiate the language
in the release and settlement agreement.
In the emphasized portions of Appellants’ counsel’s email, he sets forth the material issues
of the dispute as they relate to his clients’ willingness to settle. He further notes that he discussed
the case at length with his clients and they are motivated primarily by the Averys’ lack of insurance
coverage. He next discusses the Averys’ liability for their minor son based on their entrusting him
with a dangerous instrumentality and cites Robert’s testimony that he provided Heston with the
shotgun, which he admitted was a dangerous instrumentality. Lastly, he points out that Heston
was allowed by the Averys to keep the shotgun and ammunition in his room. He punctuates this
last statement with the assertion that “Heston was a troubled child[,] who should not have been
given unrestricted access to the shotgun.”
This final statement encapsulates Appellants’ pivotal allegations in their live pleadings at
the time these settlement negotiations transpired, i.e.,

[the Averys] were negligent in allowing Heston to possess the shotgun used to kill A.D.L.R. because
they knew or should have known that, due to his youth, inexperience, immaturity, reckless nature,
complex developmental trauma, attention deficit disorder, and/or other factors, Heston likely would
use the shotgun in a manner involving unreasonable risk of harm to himself or others.

(emphasis added).
The basis of Appellants’ argument that they were fraudulently induced to enter into the
release and settlement agreement is that Kacie Avery lied in her responses to interrogatories with
regard to whether Heston (1) ever had been expelled or suspended from any school or disciplined
by any organization outside of his home for any reason, (2) had been treated or counseled for drug
or alcohol abuse or for any other reason, (3) was on any medication in 2019 or 2020 for any mental
disorder, behavioral, addictive, or anti-social disorder or conviction, or (4) received counseling at
Miracle Farm residential ranch. As support for this contention, they summarize in their response
to the Averys’ motion for summary judgment excerpts from the documents received in discovery
from Miracle Farm 4 after they settled the case with the Averys. Kacie’s interrogatory responses,

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Appellants do not cite to the summary judgment record in their response to support the existence of these
excerpts from the Miracle Farm records. See TEX. R. CIV. P. 166a(c); Kotzur v. Kelly, 791 S.W.2d 254, 257 (Tex.
App.–Corpus Christi 1990, no writ) (when reviewing summary judgment proof, trial court is required to consider all

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in essence, painted Heston as having no discernible problems which would cause them to believe
that he could not be entrusted with a firearm. Appellants contend that the Miracle Farm records
support their allegations because they demonstrate that Heston had numerous disciplinary issues,
took medication for certain mental-health or behavioral issues, had issues with both alcohol and
marijuana, and had various other issues from which a factfinder could conclude that he should not
have been entrusted with a firearm. But ultimately, as it relates to their sole issue, the conflicting
nature of these records only serves to emphasize what the pleadings and summary judgment
evidence demonstrate about Appellants’ counsel’s suppositions at the outset of settlement
negotiations: Heston was a troubled child, who should not have been given unrestricted access to
the shotgun, and his mother had not been truthful about his troubles in her discovery responses on
that point. This contested fact ultimately became the issue in the subsequent dispute between the
parties.
Appellants also contend that the statement in their June 23 email is not specific enough to
demonstrate that this issue was discussed. See Forest Oil, 268 S.W.3d at 60 (setting forth that
parties specifically must discuss issue which has become topic of subsequent dispute); but see
Transcor Astra Group S.A., 650 S.W.3d at 475 (when parties expressly discuss material issues
during contract negotiations but nevertheless elect to include waiver-of-reliance and release-of-
claims provisions, court will uphold contract). 5 We disagree. See Transcor Astra Group S.A.,

summary judgment evidence on file with court, provided relevant party expressly identifies in its motion or response
all supporting evidence on file which it seeks to have considered by the trial court). Based on our review of the record,
these documents do not appear in the summary judgment record in the proceedings on remand. Because Appellants
offered no citation to the summary judgment record, the trial court could not rely on the Miracle Farm records in ruling
on the Averys’ motion for summary judgment. See TEX. R. CIV. P. 166a(c); Kelly, 791 S.W.2d at 257. Furthermore,
we cannot consider any summary judgment evidence that was not properly before the trial court. See Chappell v.
Allen, 414 S.W.3d 316, 321 (Tex. App.–El Paso 2013, no pet.) (scope of appellate review is limited to summary
judgment record upon which trial court’s ruling was based). In their brief, Appellants’ citation to the appellate record
in reference to these documents directs us to an exhibit to the Averys’ motion for summary judgment filed in 2023,
before the first appeal to this court. Ultimately, while we may not consider the document as summary judgment proof,
Appellants’ failure in this regard does not alter the outcome of this appeal. We reference the Miracle Farm records to
explain the basis of Appellants’ argument that these records conflict with Kacie Avery’s interrogatory responses.
Whether the records, in fact, conflict with her responses is of little value in our analysis of Appellants’ sole issue.
5
Even assuming arguendo that more specific discussions are required, the outcome would not change. The
same attorney who represented Appellants in this case also represented them during their settlement negotiations with
Robert. In an email dated January 3, 2023, by which he initiated those negotiations, Appellants’ counsel averred,

Miracle Farm is not a place for boys that have problems paying attention in class. It is a residential ranch
ministry for boys that “have experienced complex developmental trauma that profoundly impacts them, leading
to disconnected relationships, risk-taking behavior, poor decisions, low school performance, and criminal
behavior.” Heston was at Miracle Farm for these reasons and others, which directly relate to the shooting of
[A.D.L.R.].

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650 S.W.3d at 475. Appellants’ counsel’s characterization of Heston as a “troubled child” not only
embodies the theory of his case against the Averys but also is couched in such certainty as to call
into doubt any prior assertion to the contrary made by any other party to the wrongful-death case.
Thus, we conclude that the summary judgment evidence before the trial court conclusively
demonstrates that Appellants, through their counsel, expressly communicated about a material
issue in the case––the contested allegation that Heston was a troubled child, who should not have
been given unrestricted access to the shotgun––the later-discovered proof of which forms the basis
of Appellants’ claims in the present dispute. See Transcor Astra Group S.A., 650 S.W.3d at 475.
Therefore, the circumstances and nature of the parties’ settlement discussions demonstrate that the
parties considered the consequences of the reliance-disclaimer in light of the allegations regarding
Heston as a “troubled child,” Kacie’s testimony to the contrary, and the Averys’ responsibility for
providing him with a dangerous instrumentality. As such we further conclude that an all-
embracing disclaimer of any representations, in fact, shows the parties’ clear intent. See id.
In sum, the evidence offered in support of the Averys’ motion for summary judgment
conclusively proves their entitlement to judgment as a matter of law and Appellants’ assertions
that there exists a material fact issue regarding whether, during settlement negotiations, the parties
specifically discussed the current matter of dispute are unfounded. Accordingly, having considered
this evidence in the light most favorable to the nonmovant, while indulging every reasonable

See De La Rosa, 2023 WL 7178022, at *6. Not only does this specific statement from Appellants’ counsel stem from
the wrongful death case from which these proceedings arose, but it also was presented to the trial court by both parties
in the underlying summary judgment record by way of a copy of this court’s opinion from Appellant’s appeal of the
trial court’s granting summary judgment in Robert’s favor. See id. at *6–7 (concluding that, during negotiations, this
statement amounted to a specific discussion of the current matter of dispute). We conclude that the totality of the
circumstances surrounding Appellants’ settlement negotiations with the Averys indicate that the allegation of Heston
as a “troubled child” was rooted in the fact that he was a resident at Miracle Farm, and that this “material issue” to
their wrongful death cause of action very much was at the forefront of Appellants’ thought processes during settlement
negotiations. See Transcor Astra Group S.A. v. Petrobras Am. Inc., 650 S.W.3d 462, 475 (Tex. 2022); see also
Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 60 (Tex. 2008).

Additionally, the appendix to Appellants’ brief contains a hearing transcript from Washington County, Texas,
in which, according to Appellants, “[Robert] Avery’s counsel admitted that there were no settlement discussions
between him and Appellants’ counsel.” This hearing occurred months after Appellants’ appeal to this court related to
their dispute with Robert, and the hearing transcript was not part of the record in that appeal and is not part of the
appellate record in this appeal. We will not consider evidence in an appendix to a party’s brief, which is not otherwise
part of the record on appeal. See Johnson v. Pope, No. 12-23-00168-CV, 2024 WL 3439782, at *1 n.2 (Tex. App.–
Tyler July 17, 2024, no pet. h.) (mem. op.); De La Rosa, 2023 WL 7178022, at *7 n.5; Burke v. Ins. Auto Auctions
Corp., 169 S.W.3d 771, 775 (Tex. App.–Dallas 2005, pet. denied) (appellate court cannot consider documents found
only in appendix to party’s brief).

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inference and resolving any doubts against the motion, we hold that the trial court did not err in
granting summary judgment in the Averys’ favor based on a valid, written release of liability. See
TEX. R. CIV. P. 166a(c). Appellants’ sole issue is overruled.

DISPOSITION
Having overruled Appellants’ sole issue, we affirm the trial court’s judgment.

JAMES T. WORTHEN
Chief Justice

Opinion delivered August 29, 2024.
Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals,
sitting by assignment.

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 29, 2024

NO. 12-24-00111-CV

REBECCA DE LA ROSA AND CESAR DE LA ROSA,
Appellants
V.
JASON MATTHEW AVERY AND WIFE, KACIE HOPE AVERY,
Appellees

Appeal from the 273rd District Court
of Shelby County, Texas (Tr.Ct.No. 20CV35415-B)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED, and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the appellants, Rebecca De La Rosa and Cesar De La Rosa for which execution may issue,
and that this decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals,
sitting by assignment.

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