Respondent’s Brief on the Merits

RESPONDENT’S BRIEF ON THE MERITS
__________________________________________________________________

Eric D. Pearson
State Bar No. 15690472
HEYGOOD, ORR & PEARSON
2331 W. Northwest Highway
Second Floor
Dallas, Texas 75220
(214) 237-9001 Telephone
(214) 237-9002 Facsimile
eric@hop-law.com

 

ATTORNEYS FOR RESPONDENT

 

TABLE OF CONTENTS

TABLE OF CONTENTS ii

INDEX OF AUTHORITIES v

RECORD REFERENCES xi

STATEMENT OF THE CASE xii

STATEMENT OF JURISDICTION xii

ISSUES PRESENTED xiii

STATEMENT OF FACTS 1

SUMMARY OF THE ARGUMENT 2

ARGUMENT AND AUTHORITIES 3

I. TCC has waived any error by the Trial Court in its intepretation of the anti-assignment provision of the OMPA PSA 3

A. TCC was required to file a notice of appeal in order to challenge the Trial Court’s judgment that the anti-assignment provision of the OMPA PSA did not bar any of Brownsville’s claims 3

B. TCC’s cross-point does not present additional grounds for affirming the Trial Court’s judgment 6

II. There is no conflict among Texas courts; Texas law uniformly recognizes the distinction between the assignment of rights and the assignment of accrued causes of action 7

A. Texas law uniformly recognizes the distinction between the assignment of rights and the assignment of accrued causes of action 7

B. Texas statutes and other authorities also recognize the distinction between the assignment of rights and the assignment of accrued causes of action 10

C. The cases cited by TCC merely demonstrate Texas’ minority position that post-loss assignments of insurance claims are barred by standard anti-assignment provisions in insurance contracts 11

III. The Trial Court and Court of Appeals properly held that the OMPA PSA prohibited only the assignment of rights arising under the PSA and not the assignment of accrued causes of action 16

A. Texas law and public policy strongly favor the free assignability of accrued causes of action 16

B. Contractual rights and causes of action for their breach are not “inseparable” as TCC claims 16

C. The OMPA PSA prohibited the assignment of “rights,” not the assignment of accrued causes of action 20

D. OMPA assigned Brownsville accrued causes of action, not “rights” under the OMPA PSA 22

E. TCC’s standing argument should be rejected because Texas law recognizes that an assignee has standing to enforce the rights of its assignor 24

IV. TCC’s Petition should be denied because TCC is not entitled to the relief it seeks even if this Court holds that the anti-assignment language in the OMPA PSA barred the assignment of accrued causes of action 24

V. The Court of Appeals properly held that Brownsville’s interpretation of the Termination Agreement and Releases was reasonable and summary judgment was therefore improper 28

A. As long as Brownsville’s interpretation of the Termination Agreement and Releases was reasonable, summary judgment was improper 28

B. Brownsville’s interpretation of the Termination Agreement and Releases was reasonable based on the language of the agreement itself 29

C. Brownsville’s interpretation of the Termination Agreement and Releases was reasonable based on the historical origin of the agreement 32

D. Brownsville’s interpretation of the Termination Agreement and Releases was reasonable based on the purpose of the agreement 34

E. Brownsville’s interpretation of the Termination Agreement and Releases was reasonable based on the terms of the Brownsville PSA 35

F. Brownsville’s interpretation of the Termination Agreement and Releases was reasonable based on the actions of the parties following its execution 37

G. TCC failed to demonstrate that Brownsville’s interpretation of the Termination Agreement and Releases was unreasonable 39

CONCLUSION AND PRAYER 40

INDEX OF AUTHORITIES

CASES

Alaska Flight Services, LLC v. Dallas Central Appraisal District,
261 S.W.3d 884 (Tex. App.—Dallas 2008, no pet.) 5

ARM Props. Mgt. Group v. RSUI Indemn. Co.,
642 F.Supp.2d 592 (W.D. Tex. 2009) 12

Ash v. Hack Branch Distr. Co.,
54 S.W.3d 401 (Tex. App.—Waco 2001, pet. denied) 6, 7

Asshauer v. Wells Fargo Foothil,
263 S.W.3d 468 (Tex. App.—Dallas 2008, pet. denied) 18

Betco Scaffolds Co. v. Houston United Casualty Ins. Co.,
29 S.W.3d 341 (Tex. App.—Houston [14th Dist.] 2000, no pet.) 28

Baty v. Protech Ins. Agency,
63 S.W.3d 841 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) 31

Birdwell v. Birdwell,
819 S.W.2d 223 (Tex. App.—Fort Worth 1991, writ denied) 21

Bolle, Inc. v. American Greetings Corp.,
109 S.W.3d 827 (Tex. App.—Dallas 2003, pet. denied) 38

Bosque Asset Corp. v. Greenberg,
19 S.W.3d 514 (Tex. App.—Eastland 2000, pet. denied) 7

C.A. Dwyer 1962 Trust v. Taub,
No. 01-86-00826-CV, 1988 Tex. App. LEXIS 30
(Tex. App.—Houston [1st Dist.] Jan. 7, 1988, no writ) 37

Carr v. Christie,
970 S.W.2d 620 (Tex. App.—Austin 1998, pet. denied) 28

Cities of Allen, et. al. v. Railroad Comm’n of Texas,
309 S.W.3d 563 (Tex. App.—Austin 2010),
aff’d, 55 Tex. Sup. J. 88 (2011) 5

City of Brownsville v. TCC Texas Central Co.,
348 S.W.3d 348 (Tex. App.–Dallas 2011, pet. filed) xii, 26-27, 34

City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005) 35

City of Laredo v. Escamilla,
219 S.W.3d 14 (Tex. App.—San Antonio 2006, pet. denied) 6

City of San Antonio v. City of Boerne,
111 S.W.3d 22 (Tex. 2003) 4

CKB & Associates, Inc. v. Moore McCormack Petroleum, Inc.,
734 S.W.2d 653 (Tex. 1987) 31

Colvin v. Transport Ins. Co.,
No. 01-96-00528, 1996 Tex. App. LEXIS 5500
(Tex. App.—Houston [14th Dist.] Sept. 21, 2010, no pet.) 13

Combs v. Prosperity Bank,
No. 14-09-00639-CV, 2010 Tex. App. LEXIS 7707
(Tex. App.—Houston [14th Dist.] Sept. 21, 2010, no pet.) 5

Conoco, Inc. v. Republic Ins. Co.,
819 F.2d 120 (5th Cir. 1987) 13

Cont’l Cas. Co. v. Dr. Pepper Bottling Co. of Texas, Inc.,
416 F. Supp.2d 497 (N.D. Tex. 2006) 23

Conquest Drilling Fluids, Inc. v. Tri-Flo Int’l, Inc.,
137 S.W.3d 299 (Tex. App.—Beaumont 2004, no pet.) 17

Creel v. Houston Ind., Inc.,
124 S.W.3d 742 (Tex. App.—Houston [1st Dist.] 2003, no pet.) 23

Dean v. Lafayette Place,
999 S.W.2d 814 (Tex. App.—Houston [1st Dist.] 1999, no pet.) 7

Dearborn Stove Co. v. Caples,
15 S.W.3d 124 (Tex. App.-Houston [14th Dist.] 2000, pet. dism’d) 8-9

Decorative Center of Houston, L.P. v. Direct Response Publications, Inc.,
264 F.Supp.2d 535 (N.D. Tex. 2003) 20
DeWitt County Elec. Coop., Inc. v. Parks,
1 S.W.3d 96 (Tex. 1999) 32, 35

Dr. Michael Hoffman & Assoc. v. St. Paul Guardian Ins. Co.,
No. 05-04-00902-CV, 2005 Tex. App. LEXIS 6500
(Tex. App.—Dallas Aug. 16, 2005, no pet.) 13

Ensearch Corp. v. Houston Oil & Minerals, Corp.,
743 S.W.3d 654 (Tex. App.—Houston [1st Dist.] 1987, writ denied) 37

First-Citizens Bank & Trust Co. v. Greater Austin Area Telecomm. Network,
318 S.W.3d 560 (Tex. App.—Austin 2010, no pet.) 17, 19, 24

GAF Corp. v. Bamber,
29 S.W.3d 650 (Tex. App.—Beaumont 2000, pet. abated) 37

Global Drywall Sys., Inc. v. Coronado Paint Co., Inc.,
104 S.W.3d 535 (Tex. 2003) 16

Gregory Surgical Services, LLC v. Horizon Blue Cross,
No. 06-0462, 2007 U.S. Dist. LEXIS 94056 (D. N.J. Dec. 26, 2007) 18

Guar. Nat’l. Ins. Co. v. McGuire,
192 F. Supp. 2d 1204 (D. Kan. 2002) 15

Gulf Ins. Co. v. Burns Motors, Inc.,
22 S.W.3d 417 (Tex. 2000) 24

Harlandale I.S.D. v. C2M Constr., Inc.,
No. 04-07-00304-CV, 2007 Tex. App. LEXIS 6242
(Tex. App.-San Antonio Aug. 8, 2007, no pet.) 18

Hilco Elec. Coop. v. Midlothian Butane Gas Co.,
111 S.W.3d 75 (Tex. 2003) 4

In re Katrina Canal Breaches Litig.,
601 F. Supp. 2d 809 (E.D. La. 2009) 12

In re Managed Care Litig.,
No. 00-1334, 2009 U.S. Dist. LEXIS 27279 (S.D. Fla. March 30, 2009) 18

Ins. Co. of the State of Pa. v. Hutter,
No. 01-10768, 2002 U.S. App. LEXIS 28200 (5th Cir. April 4, 2002) 13
Jackson v. Thweatt,
883 S.W.2d 171 (Tex. 1974) 24

Keller Foundations, Inc. v. Suncoast Post-Tension, L.P.,
626 F.3d 871 (5th Cir. 2010) 11-12

Kraft Reinsurance Ireland, Ltd. v. Pallets Acquisitions, LLC.,
Civ. Action No. 1:09-CV-3531, 2011 U.S. Dist. LEXIS 131308
(N. D. Ga. Sept. 30, 2011) 26

Lindsay ex rel. Lindsay v. S. San Antonio Indep. Sch. Dist.,
983 S.W.2d 778 (Tex. App.–San Antonio 1998, no pet.). 9

Lutheran Medical Center v. Contractors,
25 F.3d 616 (8th Cir. 1994) 15

MacLaren v. Imperial Cas. & Indem. Co.,
767 F. Supp. 1364 (N.D. Tex. 1991) 8, 22

Maneikis v. St. Paul Ins. Co.,
655 F.2d 818 (7th Cir. 1981) 11, 15

Morris v. Zusman,
CV 3:09-CV-620-PK, 2012 U.S. Dist. LEXIS 31854
(D. Ore. March 9, 2012) 25

Murray v. San Jacinto Agency, Inc.,
655 F.2d 818 (7th Cir. 1981) 14

Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Industries, Inc.,
907 S.W.2d 517 (Tex. 1995) 28

Nautilus Ins. Co. v. Concierge Care Nursing Centers, Inc.,
804 F.Supp.2d 557 (S.D. Tex. 2011) 12

Nobles v. Marcus,
533 S.W.2d 923 (Tex. 1976) 18

Pagosa Oil & Gas, LLC v. Marrs and Smith P’ship,
323 S.W.3d 203 (Tex. App.—El Paso 2010, pet. denied) 7-8, 14, 21

Paramount Disaster Recovery, Inc. v. Axis Surplus Ins. Co.,
No. 4:10-cv-03385, 2011 U.S. Dist. LEXIS 98272
(S.D. Tex. Aug. 31, 2011) 13

Pilgrim’s Pride Corp. v. Burnett,
12-10-00037-CV, 2012 Tex. App. LEXIS 964
(Tex. App. – Tyler Feb. 3, 2012, no pet. hist.) 5

Polk Mechanical Co. v. Jones,
04-08-00509-CV, 2009 Tex. App. LEXIS 49398
(Tex. App.–San Antonio July 1, 2009, pet. denied) 7

Priem v. Shires,
697 S.W.2d 860 (Tex. App.–Austin 1985, no writ) 37

Provident Life & Acc. Ins. Co. v. Knott,
128 S.W.3d 211 (Tex. 2003) 14

Richey v. Stop N Go Markets of Texas,
654 S.W.2d 430 (Tex. 1983) 19

Seagull Energy E & P, Inc. v. Eland Energy, Inc.,
207 S.W.3d 342 (Tex. 2006) 37

Sherry Lane Nat’l Bank v. Bank of Evergreen,
715 S.W.2d 148 (Tex. App.—Dallas, 1986, write ref’d n.r.e.) 18

Southwestern Gas Pipeline, Inc. v. Scaling,
870 S.W.2d 180 (Tex. App.—Fort Worth 1994, writ denied) 20

State Farm Fire & Cas. Co., v. Gandy,
925 S.W.2d 696 (Tex. 1996) 16

Texas Farmers Ins. Co. v. Gerdes,
880 S.W.2d 215 (Tex. App—Fort Worth 1994, writ denied) 11, 13

Texas Pacific Indemnity Co. v. Atlantic Richfield Co.,
846 S.W.2d 580 (Tex. App.—Houston [14th Dist.] 1993, writ denied) 11-12

Triad Electric & Controls, Inc. v. Power Systems Engineering, Inc.,
117 F.3d 180 (5th Cir. 1997) 21

U.S. Inds., Inc. v. Touche Ross & Co.,
854 F.2d 1223 (8th Cir. 1988) 11

Vela v. Pennzoil Producing Co.,
723 S.W.2d 199 (Tex. App.—San Antonio 1986, writ ref’d n.r.e.) 30
Victoria Bank & Trust Co. v. Brady,
811 S.W.2d 931 (Tex. 1991) 30

Yzaguirre v. KCS Resources, Inc.,
53 S.W.3d 368 (Tex. 2001) 22

RULES, STATUTES AND SECONDARY SOURCES

6 AM.JUR.2D (Assignments) § 59 (2007) 20

RESTATEMENT (SECOND) CONTRACTS § 322 10, 20

TEX. BUS. & COMM. CODE ANN. § 2.102 10

TEX. BUS. & COMM. CODE ANN. § 2.210 10, 25

TEX. PROP. CODE ANN. § 12.014(a) 25

Tex. R. App. P. 25.1(c) 2-6

RECORD REFERENCES

“CR” refers to the Clerk’s Record on appeal. Citations to the Clerk’s Record are to the volume and page number on which the information appears.
“RR” refers to the Reporter’s Record. Citations to the Reporter’s Record are to the volume and page number on which the information appears.

STATEMENT OF THE CASE
The City of Brownsville, Texas Acting by and through its Public Utilities Board (“Brownsville”) brought suit against AEP Texas Central Company (“TCC”) for breach of a Purchase and Sale Agreement (“PSA”) by which Brownsville was to purchase TCC’s interest in an electric power plant. The Trial Court granted TCC summary judgment on the basis that all of Brownsville’s claims were released pursuant to the terms of a February 12, 2007 Termination Agreement and Releases. CR 39:8877. The Trial Court rejected TCC’s other summary judgment arguments, including the argument that claims asserted by Brownsville as the assignee of the Oklahoma Municipal Power Authority (“OMPA”) were barred by an anti-assignment provision in the OMPA PSA. CR 39:8877. The Dallas Court of Appeals reversed the Trial Court, finding that the release at issue applied only to claims arising under the entirely separate 1985 Participation Agreement and not to claims for breach of the 2004 PSAs. City of Brownsville v. TCC Texas Central Co., 348 S.W.3d 348 (Tex. App.–Dallas 2011, pet. filed). TCC then filed the instant Petition for Review.
STATEMENT OF JURISDICTION
This Court is without jurisdiction to hear this appeal. The only basis cited by Petitioner for this Court’s jurisdiction is the alleged conflict among Texas cases relating to the scope of anti-assignment clauses. However, TCC has waived this issue by failing to file a notice of appeal. Moreover, there is no conflict among Texas courts as TCC argues. Rather, Texas courts have uniformly held that an accrued cause of action for breach of contract may properly be assigned despite an anti-assignment clause prohibiting the assignment of the underlying contract or the rights thereunder.
ISSUES PRESENTED
1. Whether, by failing to file a cross-notice of appeal on this issue, Petitioner has waived any complaint arising from the Trial Court’s holding that the OMPA PSA’s “anti-assignment” clause did not prohibit the assignment of accrued causes of action.
2. Whether the Trial Court and Court of Appeals erred in holding that the OMPA PSA’s “anti-assignment” clause — which prohibited only the assignment of “rights under this Agreement”– did not prohibit the assignment of accrued causes of action.
3. Whether the Court of Appeals properly held that TCC did not move for summary judgment on the basis of the Termination Agreement and Releases on all of Brownsville’s causes of action.
4. Whether the Court of Appeals properly construed the parties’ Termination Agreement and Releases in holding that only claims arising under the parties’ separate Participation Agreement were released and that the parties did not intend to release claims arising under their separate PSAs.

STATEMENT OF FACTS
Brownsville, TCC and OMPA were co-owners of an electric power plant known as the Oklaunion Unit No. 1 and parties to a 1985 Participation Agreement that governed their rights as co-owners. CR 5:1023. Pursuant to that agreement, the parties had a right of first refusal to purchase a co-owner’s interest in the plant. CR 15:3001 at par. 3. In 2004, Brownsville and OMPA exercised those rights after TCC executed a purchase and sale agreement (“PSA”) with Golden Spread Electric Cooperative to sell its interest in Oklaunion. CR 1:37. Brownsville and OMPA thereafter entered into separate PSAs with TCC to purchase that same interest. CR 15:3078; CR 7:1430, 1522. The PSAs stated that “the rights under this Agreement shall not be assignable,” but made no mention of the assignment of accrued causes of action. CR 24:5721.
Golden Spread filed suit, claiming that neither Brownsville nor OMPA had validly exercised their rights of first refusal. CR 1:28, CR 2:348. Brownsville answered and sought a declaratory judgment that TCC was obligated to convey its entire interest in Oklaunion to Brownsville pursuant to their PSA. CR 5:1003. OMPA filed cross-claims against TCC for breach of contract and specific performance. CR 17:3460, 3514. The trial court granted summary judgment in favor of Golden Spread, but the Dallas Court of Appeals reversed.
At the time the underlying lawsuit was resolved, Brownsville desired to purchase all of TCC’s interest and did not believe that OMPA had validly exercised its right of first refusal. Id. To resolve this issue, Brownsville paid OMPA $7 million and OMPA sold and assigned its then-pending claims against TCC to Brownsville and agreed to terminate its PSA so that Brownsville could purchase TCC’s entire Oklaunion interest. CR 24:5736. After years of delay, TCC finally sold its entire interest in Oklaunion to Brownsville on February 14, 2007.
After Brownsville reopened the underlying case so that it could pursue its claims as well as those assigned to it by OMPA, both parties moved for summary judgment. The Trial Court specifically rejected TCC’s argument that OMPA’s assignment of its causes of action to Brownsville was barred by the OMPA PSA’s anti-assignment language. CR 8879. The Trial Court, however, granted summary judgment to TCC, concluding that the Termination Agreement and Releases signed prior to closing barred all of Brownsville’s claims even though the plain language of the release only applied to claims arising under the 1985 Oklaunion Participation Agreement and not the parties’ 2004 PSAs. CR 39:8877. Brownsville appealed. The Dallas Court of Appeals reversed the judgment of the Trial Court, finding that the Termination Agreement and Releases released only claims for breach of the Participation Agreement. It also affirmed the Trial Court’s holding that the anti-assignment provision in the OMPA PSA did not apply to the assignment of accrued causes of action. TCC thereafter filed the instant Petition for Review.
SUMMARY OF THE ARGUMENT
Although the Trial Court explicitly stated in its written Final Summary Judgment that “TCC’s argument based on the anti-assignment provision set forth in Section 11.5 of the OMPA PSA is hereby denied,” TCC failed to file a Notice of Appeal addressing this issue. Under Tex. R. App. 25.1(c), TCC has therefore waived any alleged error.
There is no conflict among Texas courts, as Texas courts have consistently held that anti-assignment clauses barring the assignment of a contract or rights under a contract do not bar the assignment of accrued causes of action for breach of contract. The cases cited by TCC do not address this issue, but merely stand for the proposition that post-loss assignments of insurance claims are barred by standard anti-assignment provisions in insurance contracts. The Trial Court and the Court of Appeals properly held that the anti-assignment provision of the OMPA PSA did not prohibit the assignment of OMPA’s accrued causes of action against TCC.
The Trial Court erred in granting summary judgment on all of Brownsville’s claims when TCC did not even argue that the Termination Agreement and Releases barred all of Brownsville’s claims.
Finally, the Court of Appeals properly held that the Trial Court committed reversible error by granting summary judgment on claims arising under entirely separate PSAs where the parties only released claims arising “under the Oklaunion Participation Agreement” and never mentioned claims arising under the entirely separate PSAs.
ARGUMENT AND AUTHORITIES
I. TCC has waived any error by the Trial Court in its interpretation of the anti-assignment provision of the OMPA PSA.

A. TCC was required to file a notice of appeal in order to challenge the Trial Court’s judgment that the anti-assignment provision of the OMPA PSA did not bar any of Brownsville’s claims.

Rule 25.1(c) of the Texas Rules of Appellate Procedure contains two separate provisions addressing when a notice of appeal is necessary:
1. A party who seeks to alter the trial court’s judgment or other appealable order must file a notice of appeal.

2. The appellate court may not grant a party who does not file a notice of appeal more favorable relief than did the trial court except for just cause.

Tex. R. App. P. 25.1(c) (emphasis added). The second provision focuses on the “relief” granted by the trial court while the first provision focuses on the terms of the written document — the trial court’s “judgment or other appealable order” — embodying such relief. TCC may argue that the term “judgment” as used in the statute does not mean the written document signed by the Trial Court but actually means the relief granted by the Trial Court, i.e., summary judgment in TCC’s favor an all of Brownsville’s causes of action. But such a reading would render the first sentence of the Rule wholly superfluous in contravention of basic principles of statutory construction. See, e.g., City of San Antonio v. City of Boerne, 111 S.W.3d 22, 29 (Tex. 2003) (“it is an elementary rule of construction that, when possible to do so, effect must be given to every sentence, clause and word of a statute so that no part thereof be rendered superfluous.”). Such a reading would also ignore the language, “or other appealable order.” Under the principle of ejusdem generis, the meaning of “judgment” must mean a written document such as an “appealable order” rather than the “relief” granted by the court’s judgment. See, e.g., Hilco Elec. Coop. v. Midlothian Butane Gas Co., 111 S.W.3d 75, 81 (Tex. 2003).
Here, the Trial Court’s Final Summary Judgment explicitly stated that “TCC’s argument based upon the anti-assignment provision set forth in Section 11.5 of the OMPA PSA is hereby denied.” CR 8799; Petitioner’s Brief at 3 (“The trial court, however, specifically denied TCC’s request for summary judgment based on the anti-assignment provision”). By asking this Court to hold that OMPA’s assignment to Brownsville was void because it violated the anti-assignment provision, TCC is asking this Court to “alter the trial court’s judgment or other appealable order.” To properly do so, TCC was required to file a Notice of Appeal, which it failed to do. It has therefore waived any alleged error by the Trial Court. See Cities of Allen, et. al. v. Railroad Comm’n of Texas, 309 S.W.3d 563, 576 (Tex. App.—Austin 2010), aff’d, 55 Tex. Sup. J. 88 (2011) (“Because this cross-point does not merely present an alternative basis for affirming the judgment, but seeks a holding that the trial court erred in issuing one of its conclusions of law, we conclude that the cross-point is not properly before us in this appeal.”); Combs v. Prosperity Bank, No. 14-09-00639-CV, 2010 Tex. App. LEXIS 7707 at *5 (Tex. App.—Houston [14th Dist.] Sept. 21, 2010, no pet.) (“Prosperity also asserted, as alternative summary judgment grounds, the affirmative defenses of laches, ratification, and failure to mitigate. However, the trial court expressly rejected those arguments, and we do not address them here because Prosperity has not filed a cross-appeal complaining about that portion of the court’s ruling.”); Alaska Flight Services, LLC v. Dallas Central Appraisal District, 261 S.W.3d 884, 885 (Tex. App.—Dallas 2008, no pet.) (“DCAD filed a plea to the jurisdiction in the trial court. Following trial, the trial court denied the plea but ruled in DCAD’s favor on the question of jurisdiction to tax. Both rulings were incorporated into the final judgment. DCAD did not file a notice of appeal. In its appellate brief, DCAD asks us to dismiss the entire case for lack of jurisdiction based on the grounds raised in its plea to the jurisdiction. Because DCAD seeks to alter the judgment of the trial court, it was required to file a notice of appeal in this Court.”); Pilgrim’s Pride Corp. v. Burnett, No. 12-10-00037-CV, 2012 Tex. App. LEXIS 964 at *57 (Tex. App. – Tyler Feb. 3, 2012, no pet. hist.) (“The Burnetts generally seek to affirm the judgment of the trial court. However, they raised three conditional cross-issues: (1) the trial court erred when it granted Pilgrim’s Pride’s motion for partial summary judgment holding that gross negligence, and thus exemplary damages, were not raised by the evidence as to Pilgrim’s Pride . . . . By their cross-issues, the Burnetts do not present ‘additional, independent grounds for affirming the trial court’s judgment.’ Instead, their cross-issues are more properly characterized as arguments that the trial court reversibly erred. Therefore, we hold that the Burnetts were required to file a notice of appeal. They failed to do so, and consequently, their cross-issues are not properly before us.”).
B. TCC’s cross-point does not present additional grounds for affirming the
Trial Court’s judgment.

TCC argues that Rule 25.1(c) does not apply because “TCC simply seeks by its cross point to present additional grounds for affirming the trial court’s summary judgment.” Appellant’s Brief at 22. But this is simply inaccurate. The Trial Court’s judgment granted TCC summary judgment on all of Brownsville’s claims, both those brought in its own name and those brought as an assignee of OMPA. TCC’s cross-point, however, addresses only those claims brought by Brownsville as the assignee of OMPA. CR 24:5698 (“In addition to the eleven causes of action that Brownsville alleges on its own behalf, Brownsville also seeks to bring ten claims ‘in the alternative.’ These claims, however, are expressly barred by the anti-assignment provision between TCC and OMPA.”). Thus, even accepting TCC’s position, its cross-point, if accepted, would not present additional grounds for affirming the trial court’s judgment, which rendered summary judgment on all of Brownsville’s claims. This point distinguishes Ash, Dean v. Lafayette Place, 999 S.W.2d 814, 818 (Tex. App.—Houston [1st Dist.] 1999, no pet.), Polk Mechanical Co. v. Jones, No. 04-08-00509-CV, 2009 Tex. App. LEXIS 49398 (Tex. App.–San Antonio July 1, 2009, pet. denied) and Bosque Asset Corp. v. Greenberg, 19 S.W.3d 514, 517 (Tex. App.—Eastland 2000, pet. denied), in which the appellees’ cross-points went to the entire case.
II. There is no conflict among Texas courts; Texas law uniformly recognizes the distinction between the assignment of rights and the assignment of accrued causes of action.

A. Texas law uniformly recognizes the distinction between the assignment of rights and the assignment of accrued causes of action.

Numerous Texas cases have recognized the distinction between the assignment of rights under a contract and the assignment of accrued causes of action for breach of the contract. In Pagosa Oil & Gas, LLC v. Marrs and Smith P’ship, 323 S.W.3d 203 (Tex. App.—El Paso 2010, pet. denied), for example, Boyd leased mineral rights from a partnership. Boyd later assigned to Sombrero “its potential breach of contract cause of action against the Partnership.” Id. at 209. When Sombrero sued on the assigned cause of action, the Partnership argued that Sombrero lacked standing because the lease at issue prohibited its assignment. The Court of Appeals stated that “Texas law recognizes a distinction between a contracting party’s ability to assign rights under a contract containing an anti-assignment provision, and that same party’s ability to assign a cause of action arising from breach of that contract.” Id. at 211 (emphasis added). Turning to the wording of the anti-assignment provision, the court held that:
This anti-assignment clause states that the lessor, the Partnership, would have the right to notice and pre-approval of any assignments of the lease. The clause does not indicate an intent to limit the parties’ rights to assign a cause of action arising from an alleged breach of the lease. Therefore, Boyd maintained its common law right to assign its cause of action for breach, and Sombrero has stepped into Boyd’s position via the assignment.

Id. at 212; see also MacLaren v. Imperial Cas. & Indem. Co., 767 F. Supp. 1364, 1377 (N.D. Tex. 1991) (“the court has no doubt that a Texas court would hold that the policy prohibition against assignment of an interest under the policy is inapplicable to the assignment of causes of action that have come into existence after the loss has occurred”). The holding in Pagosa is clearly applicable to the facts of this case and was properly followed by the Dallas Court of Appeals.
TCC claims, however, that the authority relied on by the court in Pagosa does not stand for the proposition for which it was cited. TCC is simply wrong. In the case of Dearborn Stove Co. v. Caples, 236 S.W.2d 486 (Tex. 1951), for example, Caples leased property to Teague pursuant to a lease that was non-assignable. Dearborn Stove, Teague’s employer, reimbursed Teague for the rent he had paid and Teague assigned it all “rights” in the lease and all “causes of action” he might have in connection with the lease. Id. at 487-8. When Dearborn Stove filed suit, Caples argued that it lacked standing. The trial court and court of appeals disagreed. This Court affirmed, holding that even if the lease and the rights thereunder were not assignable, a cause of action for breach of the lease was: “[t]hat the lease itself was not validly assigned or assignable does not prevent a valid assignment of the overcharge claim.” Id. at 490. This is the precise issue now before this Court in the instant case, and stare decisis mandates that the Court apply its prior holding in Dearborn Stove and deny the Petition.
Another case cited by the court in Pagosa was Lindsay ex rel. Lindsay v. S. San Antonio Indep. Sch. Dist., 983 S.W.2d 778 (Tex. App.–San Antonio 1998, no pet.). In that case, Lindsay challenged the termination of her teaching contract. When she died while her challenge was pending, the court dismissed the case, finding that her claims did not survive her death. Reversing, the court of appeals held that Lindsay’s cause of action for breach of her teaching contract was assignable even though the contract itself was not:
The District argues that because Lindsay could not assign her personal services contract, this appeal cannot survive. However, the inquiry is not, as the District argues, whether the contract is assignable, but whether the cause of action related to its alleged breach is assignable.

At common law, a cause of action for breach of contract is assignable and therefore survives the death of either party.

Id. at 780. The above cases illustrate the distinction between the assignment of rights and the assignment of accrued causes of action for breach of those rights.
B. Texas statutes and other authorities also recognize the distinction between the assignment of rights and the assignment of accrued causes of action.

Texas statutes and other authorities also recognize the distinction between the assignment of rights and the assignment of an accrued cause of action. For example, Section 2.210(b) of the Texas Business and Commerce Code states:
(b) Unless otherwise agreed all rights of either seller or buyer can be assigned except where the assignment would materially change the duty of the other party, or increase materially the burden or risk imposed on him by his contract, or impair materially his chance of obtaining return performance. A right to damages for breach of the whole contract or a right arising out of the assignor’s due performance of his entire obligation can be assigned despite agreement otherwise.

TEX. BUS. & COMM. CODE ANN. § 2.210(b) (Vernon 1994) (emphasis added). The statute treats rights and causes of action differently: rights can be assigned “unless otherwise agreed,” while causes of action can be assigned “despite agreement otherwise.”
Section 322 of the Restatement (Second) of Contracts also incorporates the distinction between the assignment of rights and accrued causes of action:
A contract term prohibiting assignment of rights under the contract, unless a different intention is manifested, does not forbid assignment of a right to damages for breach of the whole contract or a right arising out of the assignor’s due performance of his entire obligation.

RESTATEMENT (SECOND) CONTRACTS § 322(2)(a); see also U.S. Inds., Inc. v. Touche Ross & Co., 854 F.2d 1223, 1234 (8th Cir. 1988) (citing Restatement and holding that the anti-assignment provision did not prohibit the assignment of causes of action); Maneikis v. St. Paul Ins. Co., 655 F.2d 818, 826 (7th Cir. 1981) (clause prohibiting the assignment of “interests” under an insurance policy “can only prohibit assignment of policy coverage, not assignment of an accrued cause of action.”).
C. The cases cited by TCC merely demonstrate Texas’ minority position that post-loss assignments of insurance claims are barred by standard anti-assignment provisions in insurance contracts.

Although TCC implores this Court to resolve an alleged conflict in Texas law, the cases it actually cites in its Brief demonstrate that there simply is no conflict to resolve. Rather, the cases merely demonstrate that Texas has accepted the minority position that post-loss assignments of insurance claims are barred by standard anti-assignment provisions in insurance contracts. See, e.g., Keller Foundations, Inc. v. Suncoast Post-Tension, L.P., 626 F.3d 871 (5th Cir. 2010) (stating that “Texas courts, however, diverge from this majority and enforce non-assignment clauses even for assignments made post-loss” and citing as support the decisions in Texas Farmers Ins. Co. v. Gerdes, 880 S.W.2d 215 (Tex. App—Fort Worth 1994, writ denied), Texas Pacific Indemnity Co. v. Atlantic Richfield Co., 846 S.W.2d 580 (Tex. App.—Houston [14th Dist.] 1993, writ denied) and Conoco, Inc. v. Republic Ins. Co., 819 F.2d 120 (5th Cir. 1987)); Petitioner’s Brief at 17 (citing Keller for the proposition that “Texas courts, however, diverge from this majority and enforce non-assignment clauses even for assignments made post-loss.”); see also Nautilus Ins. Co. v. Concierge Care Nursing Centers, Inc., 804 F.Supp.2d 557, 559 (S.D. Tex. 2011) (“Contrary to the majority rule, Texas courts enforce anti-assignment clauses post-loss and without requiring the insurer to show prejudice.”). Whether correct or not, there is no question that this is the well-established law in Texas. There is no conflicting Texas authority on this narrow, and wholly inapplicable, issue.
Because of their narrow focus on the assignment of post-loss insurance claims, the cases cited by TCC do not conflict with the cases cited by Brownsville demonstrating the clear distinction between the assignment of rights and the assignment of accrued causes of action. In fact, in none of the cases cited by TCC did the parties assign an existing, accrued cause of action as did OMPA herein. Rather, each of the assignments merely assigned “claims” to insurance proceeds that were made after a covered loss but prior to any denial of coverage which might give rise to a cause of action against the insurance company. See, e.g., Texas Pacific Indemnity Co. 846 S.W.2d at 582 (at the time of the assignment of rights to proceeds of claims under an insurance policy there had been a loss but no demand for coverage or breach of contract by the insurance company); Keller Foundations, Inc., 626 F.3d at 873 (it was not until well after the policy was assigned that the insurer refused to provide coverage for various lawsuits, thereby breaching the policy); Conoco, Inc., 819 F.2d at 121 (5th Cir. 1987) (no cause of action existed at the time of the assignment and none was assigned; the only distinction made by the assignee was that between a “claim or demand” under the insurance policy and “proceeds” under the policy, a distinction the court found to be “specious.”) ; Texas Farmers Ins. Co., 880 S.W.2d at 217 (the insured had no cause of action to assign because she had been paid for her medical treatment by her insurance company); Dr. Michael Hoffman & Assoc. v. St. Paul Guardian Ins. Co., No. 05-04-00902-CV, 2005 Tex. App. LEXIS 6500 at *2 (Tex. App.—Dallas Aug. 16, 2005, no pet.) (the insurance company did not deny pending claim until after the insured sold its building and assigned the buyer its “rights” under the policy); Paramount Disaster Recovery, Inc. v. Axis Surplus Ins. Co., No. 4:10-cv-03385, 2011 U.S. Dist. LEXIS 98272 (S.D. Tex. Aug. 31, 2011) (insured assigned insurance proceeds under policy prior to any refusal to pay); Ins. Co. of the State of Pa. v. Hutter, No. 01-10768, 2002 U.S. App. LEXIS 28200 at *2 (5th Cir. April 4, 2002) (“M&W Holdings purported to assign its interest in, or rights under, the ICSOP policy to Hutter at a time when M&W Holdings had no right to bring suit on the policy.”); Colvin v. Transport Ins. Co., No. 01-96-00528, 1996 Tex. App. LEXIS 5500 at *2 (Tex. App.—Houston [1st Dist.] Dec. 12, 1996 writ denied) (policyholder assigned to plaintiff a percentage of any potential overcharge claim prior to any demand for repayment).
These cases do not stand for the proposition, as TCC claims that “Brownsville’s accrual argument has been rejected by Texas courts” because in none of the cases had a cause of action accrued at the time of the assignment. Petitioner’s Brief at 17. The reason is that “[u]nder Texas law, a plaintiff’s cause of action for bad-faith breach of a first-party insurance contract accrues at the time the insurer denies the insured’s claim.” Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); see also Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990) (same). Without a denial of coverage or benefits, there can be no cause of action. Thus, the cases cited by TCC can be illustrated as follows:
Insurance policy → covered loss → assignment of policy “rights” or “interests” → demand for coverage or payment by assignee → refusal by insurance co. → accrual of cause of action → suit by assignee

But the facts of the instant case are different, and not simply because they arise outside of the insurance context. Here, the assignor (OMPA) already possessed accrued causes of action at the time it assigned its “causes of action” to Brownsville. In other words, OMPA — not Brownsville — was the rights-holder at the time the contractual rights were violated. Under these facts, a clause barring the assignment of “rights” simply does not bar the assignment of accrued causes of action. See, e.g., Pagosa Oil & Gas, 323 S.W.3d at 211 (“Texas law recognizes a distinction between a contracting party’s ability to assign rights under a contract containing an anti-assignment provision, and that same party’s ability to assign a cause of action arising from breach of that contract.”). Even the few courts that have addressed this precise issue in the context of insurance claims have agreed. See Guar. Nat’l. Ins. Co. v. McGuire, 192 F. Supp. 2d 1204, 1208 (D. Kan. 2002) (“The court does not construe McGuire’s assignment as a transfer of the policy itself which would require GNIC’s written consent. As the plain language of the assignment states, McGuire did not assign his coverage rights under the policy as an insured, but only assigned any claims he may have against the insurer arising out of its denial of coverage. This is a significant distinction. . . . the court believes that a Kansas court would hold that the policy’s prohibition against transfer is inapplicable to the assignment of causes of action that come into existence after the loss has occurred. Otherwise stated, this policy provision can only prohibit assignment of policy coverage, not assignment of an accrued cause of action.”); Maneikis, 655 F.2d at 826 (“St. Paul next contends that Maneikis, as Solotke’s assignee, has no right to maintain this action against the insurer because the insurance policy forbade any assignment of interest under the policy without the insurer’s consent. This policy provision, however, can only prohibit assignment of policy coverage, not assignment of an accrued cause of action.”); Lutheran Medical Center v. Contractors, 25 F.3d 616, 619 (8th Cir. 1994) (“This anti-assignment clause does not prevent Lutheran and Henderson from suing the Plan. Section 22 clearly prohibits assignment of ‘rights or benefits’ under the Plan, but does not prohibit assignment of causes of action arising after the denial of benefits. Here, the Rodriguezes assigned their cause of action, not the right to receive benefits under the Plan.”).
The post-loss insurance cases cited by TCC are inapplicable to the issue before this Court: whether anti-assignment clauses barring the assignment of “rights” bar the assignment of accrued causes of action for breach of those rights. As the cases set forth above illustrate, there simply is no conflict for this Court to resolve.
III. The Trial Court and Court of Appeals properly held that the OMPA PSA prohibited only the assignment of rights arising under the PSA and not the assignment of accrued causes of action.

A. Texas law and public policy strongly favor the free assignability of accrued causes of action.

Texas courts have consistently embraced the rule that a claim or cause of action may be freely transferred by assignment or otherwise. See, e.g., Global Drywall Sys., Inc. v. Coronado Paint Co., Inc., 104 S.W.3d 538, 538-40 (Tex. 2003) (recognizing the “free assignability of claims” and that “[t]he general rule in Texas is that causes of action are freely assignable”); State Farm Fire & Cas. Co., v. Gandy, 925 S.W.2d 696, 706 (Tex. 1996) (“Practicalities of the modern world have made free alienation of choses in action the general rule . . . .”). Here, TCC’s broad interpretation of the anti-assignment provision would do violence to this well-established principle by restricting the right of OMPA to assign matured, accrued causes of action even though the anti-assignment provision at issue only bars the assignment of contractual “rights” and not causes of action for breach of contract.
B. Contractual rights and causes of action for their breach are not “inseparable” as TCC claims.

The numerous faults with TCC’s premise that rights and causes of action are “inseparable” can first be seen in one of the headings in its Brief, which states: “As This Court Recognized in Nobles, a Cause of Action Cannot Accrue Without a Legal Right.” Petitioner’s Brief at 7. While this statement may be accurate, it completely misses the point and miscasts the legal issues before the Court. Here, it is unquestioned that the causes of action OMPA assigned to Brownsville had already accrued prior to the assignment of those claims to Brownsville. In fact, OMPA had already asserted some of the claims against TCC in the parties’ ongoing lawsuit. CR 17:3460, 3514. Thus, at the time the assigned causes of action accrued to OMPA, they arose from the rights then held by OMPA. The causes of action were not “separated” from OMPA’s rights until after they had already accrued. This is in stark contrast to the post-loss insurance claim cases cited by TCC in which the cause of action for denial of coverage did not accrue until after the policy rights were assigned.
Another problem with TCC’s premise is that if contractual rights and causes of action for their breach were inseparable, strict privity would be required for breach of contract claims and such claims could not be assigned without also assigning the contract itself. This is clearly not the law in Texas. See, e.g., Conquest Drilling Fluids, Inc. v. Tri-Flo Int’l, Inc., 137 S.W.3d 299, 308 (Tex. App.—Beaumont 2004, no pet.) (“Tri-Flo responds there was no privity of contract between Tri-Flo and Conquest. But Conquest relies on Coastal’s assignment of Coastal’s ‘litigious rights’ to Conquest. That document effectively assigned Coastal’s cause of action for breach of contract to Conquest, and Conquest is asserting Coastal’s claims under the contract. Tri-Flo’s lack of privity argument does not defeat that claim.”); First-Citizens Bank & Trust Co. v. Greater Austin Area Telecomms. Network, 318 S.W.3d 560, 566 (Tex. App.–Austin 2010, no pet.) (“For purposes of standing, ‘privity is established by proving that the defendant was a party to an enforceable contract with either the plaintiff or a party who assigned its cause of action to the plaintiff.’ An assignee stands in the shoes of the assignor and may assert those rights that the assignor could assert, including bringing suit.”).
In truth, none of the cases cited by TCC hold that contractual rights and causes of action for their breach are inseparable. For example, this Court in Nobles v. Marcus, 533 S.W.2d 23, 927 (Tex. 1976) merely held that a cause of action is a combination of a right and a violation of that right; it said nothing about whether an accrued cause of action could be assigned without also assigning contractual rights. Similarly, in Harlandale I.S.D. v. C2M Constr., No. 04-07-00304, 2007 Tex. App. LEXIS 6242 (Tex. App.–San Antonio Aug. 8, 2007), the court merely held that a construction company that assigned all of its rights under a construction contract to its sureties also assigned causes of action for breach of those rights. The court did not address whether such causes of action could be separately assigned after they accrued. Gregory Surgical Services, LLC v. Horizon Blue Cross, No. 06-0462, 2007 U.S. Dist. LEXIS 94056 (D. N.J. Dec. 26, 2007) and In re Managed Care Litig., No. 00-1334, 2009 U.S. Dist. LEXIS 27279 (S.D. Fla. March 30, 2009) merely held that an assignment of benefits under an insurance plan included the assignment of the right to sue for benefits. Lastly, Sherry Lane Nat’l Bank v. Bank of Evergreen, 715 S.W.2d 148 (Tex. App.—Dallas, 1986, write ref’d n.r.e.) and Asshauer v. Wells Fargo Foothill, 263 S.W.3d 468 (Tex. App.—Dallas 2008, pet. denied) merely held that normally only a party whose legal rights have been breached may assert a cause of action and did not address the rights of a party who has been assigned an accrued cause of action. See, e.g., First Citizens Bank & Trust Co., 318 S.W.3d at 566 (“An assignee stands in the shoes of the assignor and may assert those rights that the assignor could assert, including brining suit.”).
Finally, TCC’s “inseparability” argument conflicts with this Court’s holding in Richey v. Stop N Go Markets of Texas, 654 S.W.2d 430 (Tex. 1983) in which the Court recognized that rights and causes of action are separable and may be separately assigned. In that case, Richey owned premises leased by Stop N Go. After Stop No Go made certain alterations to the leased premises without his permission, Richey sued. While the suit was pending, Richey sold the leased premises to Depew. On appeal, Stop N Go argued that Richey could not bring suit because his causes of action were transferred with the property. Despite the fact that lease obligations generally run with the transfer of an interest in leased property, this Court held that accrued causes of action for breach of a lease are separable from the lease rights themselves. It concluded that, absent a specific assignment of existing causes of action, an assignment of lease rights did not include causes of action that had already accrued prior to the assignment:
A lessor/grantor may transfer benefits to his grantee, yet still retain the right to sue for breaches occurring while he was lessor. Although Texas courts have not addressed this exact issue, it is the well-settled rule in other jurisdictions that the grantee of the original lessor cannot recover for breach by a tenant which occurred before the transfer, absent an express assignment of the cause of action. . . . . Because there was no express assignment here of his cause of action to Depew, Richey retained his right to pursue the case following transfer of the property.

Id. at 432. TCC’s assertion that contractual rights and causes of action for their breach are inseparable — the central argument of its entire Brief — is contrary to well-established Texas law and should be rejected. See, e.g., Decorative Center of Houston, L.P. v. Direct Response Publications, Inc., 264 F.Supp.2d 535, 544 n.20 (N.D. Tex. 2003) (“the assignment was of ‘right, title and interest in and to the Termination Agreement. . . . Thus, the assignment was an assignment of contractual rights, not a cause of action or a judgment”); 6 AM.JUR.2D (Assignments) § 59 (2007) (“Contract rights are distinct from the causes of action that accrue from the violation of such rights; thus a prohibition in a contract against assignment of the contract without the consent of the other party does not bar an assignment of a cause of action accruing from the breach of the contract.”); RESTATEMENT (SECOND) CONTRACTS § 322(2)(a) (“a contract term prohibiting assignment of rights under the contract, unless a different intention is manifested, does not forbid assignment of a right to damages for breach of the whole contract”).
C. The OMPA PSA prohibited the assignment of “rights,” not the assignment of accrued causes of action.

Section 11.5 of the OMPA PSA merely stated that “the rights under this Agreement shall not be assignable,” but made no mention of the assignment of accrued causes of action. CR 24:5721. To conclude that Section 11.5 of the OMPA PSA, which applies only to OMPA’s “rights” under the OMPA PSA, should be interpreted to include accrued and existing “claims” and “causes of action” would effectively rewrite Section 11.5 by enlarging the reach of that provision, something courts lack the authority to do. See, e.g., Southwestern Gas Pipeline, Inc. v. Scaling, 870 S.W.2d 180, 183 (Tex. App.—Fort Worth 1994, writ denied) (“[T]he court is not at liberty to revise an agreement while professing to construe it.”). Had TCC intended to bar the assignment by OMPA of any of its claims or causes of action, it could have and should have drafted Section 11.5 to expressly encompass “claims” and “causes of action” that arose out of or were related to any breach of the rights and duties contained in the OMPA PSA. In fact, throughout the OMPA PSA, drafted by TCC, TCC used the following words and phrases:
● “claims” (at least 18 times)
● “claims or causes of action” (2 times)
● “choses in action” (1 time)
CR 23:5541, 5543, 5558, 5563, 5576, 5584, 5586, 5587, 5596, 5599.
Where, as here, the parties to a contract have shown that they know how to express certain intentions in clear, unequivocal terms, courts should not interpret other phrases to have the same meaning. See, e.g., Triad Electric & Controls, Inc. v. Power Systems Engineering, Inc., 117 F.3d 180, 191 (5th Cir. 1997) (rejecting argument that advance in contract was in fact a bonus because “¶6, which provided for a ‘bonus’ if Triad met certain project completion dates, indicates that the parties knew how to use that term when intended.”); Birdwell v. Birdwell, 819 S.W.2d 223, 229 (Tex. App.—Fort Worth 1991, writ denied) (rejecting argument that alimony in divorce agreement was in reality child support because “the contract facially shows that the parties knew how to designate funds for the support of children.”). There is simply no reason to assume — and certainly no reason to assume as a matter of law — that the term “rights” meant anything other than its common meaning. See, e.g., Pagosa, 323 S.W.3d at 205 (“When a written instrument is worded so that it can be given a definite meaning or interpretation, it will be interpreted as a matter of law. This anti-assignment clause states that the lessor, the Partnership, would have the right to notice and pre-approval of any assignments of the lease. The clause does not indicate an intent to limit the parties’ rights to assign a cause of action arising from an alleged breach of the lease. Therefore, Boyd maintained its common law right to assign its cause of action for breach, and Sombrero has stepped into Boyd’s position via the assignment.”); MacLaren v. Imperial Cas. & Indem. Co., 767 F. Supp. 1364, 1377 (N.D. Tex. 1991) (holding that provision in insurance contract prohibiting assignment of interest in policy prohibited only assignment of coverage and not accrued cause of action). Given the language used, there is no basis to conclude that the parties intended to bar the assignment of accrued causes of action rather than merely the assignment of contractual “rights” as stated in the OMPA PSA.
D. OMPA assigned Brownsville accrued causes of action, not “rights” under the OMPA PSA.

The anti-assignment provision of the OMPA PSA simply stated that “[t]he rights under this Agreement shall not be assignable . . . .” CR 24:5721 (emphasis added). In determining whether the assignments between Brownsville and OMPA violated this provision, the Trial Court was required to “restrict [its] analysis to the plain language of the assignment to determine the nature and scope of the assigned interest.” Yzaguirre v. KCS Resources, Inc., 53 S.W.3d 368, 372-73 (Tex. 2001). The plain language of the assignments demonstrates that OMPA did not assign its “rights” under its PSA, but rather, its existing “claims and causes of action” against TCC. CR 23:5780, 5783. Those claims included causes of action OMPA had already brought in the underlying lawsuit as well as accrued claims for breach of contract. CR 17:3460, 3514; CR 24:5736.
The surrounding circumstances of the execution of the assignment agreements further confirm that what was assigned were accrued causes of action and not contractual rights. See, e.g., Creel v. Houston Ind., Inc., 124 S.W.3d 742, 750 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (“Evidence of surrounding circumstances may be consulted.”). Specifically, the parties could not have intended to assign OMPA’s contractual rights under its PSA to Brownsville for the simple fact that the OMPA PSA was being terminated; in fact, the termination of the OMPA PSA was a condition of the assignment agreement! CR 23:5379 (“Brownsville will pay OMPA Seven Million Dollars ($7,000,000.00) (the ‘Consideration’) provided (1) OMPA secures TCC’s written agreement to mutually terminate the Purchase and Sale Agreement between TCC and OMPA dated September 16, 2004 for the purchase of TCC’s remaining interest in Oklaunion . . . .”). Thus, OMPA and Brownsville could not have intended to assign OMPA’s contractual rights to Brownsville when the termination of OMPA’s contract with TCC was a condition of their assignment agreement. TCC’s overbroad interpretation of the assignment agreements completely ignores these surrounding circumstances.
The alleged breach of the anti-assignment provision was an affirmative defense on which TCC had the burden of proof. See Cont’l Cas. Co. v. Dr. Pepper Bottling Co. of Texas, Inc., 416 F. Supp.2d 497, 510 (N.D. Tex. 2006) (“Breach of the anti-assignment clause is an affirmative defense, and Dr Pepper therefore bears the burden to point to evidence supporting each element of the defense and demonstrating the lack of any genuine issue of material fact with regard thereto.”). Based on the plain language of the Assignment and the parties’ expressed intent to terminate the OMPA PSA as part of their transaction, TCC failed to meet this burden.
E. TCC’s standing argument should be rejected because Texas law recognizes that an assignee has standing to enforce the rights of its assignor.

TCC asserts that Brownsville lacks standing to assert claims for breach of the OMPA PSA because “only the person whose primary legal right has been breached may seek redress for an injury.” Petitioner’s Brief at 7-9. None of the cases cited by TCC, however, involved an assignment, either of a contract or a cause of action. Where, as here, a party has assigned a cause of action, is well-established that the assignee stands in the shoes of his assignor and has the same legal rights as the assignor. See, e.g., Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 420 (Tex. 2000) (“As assignee, Burns Motors stands in Nash’s shoes and may assert only those rights that Nash himself could assert.”); Jackson v. Thweatt, 883 S.W.2d 171, 174 (Tex. 1974) (“an assignee receives the full rights of his assignor.”); First Citizens Bank & Trust Co., 318 S.W.3d at 566 (“An assignee stands in the shoes of the assignor and may assert those rights that the assignor could assert, including bringing suit.”). Because Brownsville was assigned OMPA’s accrued causes of action, it clearly has legal standing to prosecute those claims.
IV. TCC’s Petition should be denied because TCC is not entitled to the relief it seeks even if this Court holds that the anti-assignment language in the OMPA PSA barred the assignment of accrued causes of action.

TCC states in its Brief that this Court should “enforce the plain language of the anti-assignment provision by reversing the court of appeals’ judgment and rendering judgment for TCC.” Petitioner’s Brief at 6. However, even if this Court were to broadly interpret the anti-assignment language in the OMPA PSA, TCC would not be entitled to have this case reversed and rendered. First, it is unquestioned that even if the anti-assignment provision were broadly interpreted, Brownsville would still be permitted to assert the assigned causes of action. Section 12.014 of the Texas Property Code specifically permits an interest in a cause of action to be sold regardless of whether the cause of action is assignable:
(a) A judgment or part of a judgment of a court of record or an interest in a cause of action on which suit has been filed may be sold, regardless of whether the judgment or cause of action is assignable in law or equity, if the transfer is in writing.

TEX. PROP. CODE ANN. § 12.014(a) (emphasis added). In the agreement at issue, OMPA agreed to “sell and convey” its causes of action against TCC to Brownsville. CR 24:5736 (emphasis added). As such, those causes of action were properly sold by OMPA to Brownsville even if the anti-assignment clause in the OMPA PSA is read to prohibit the assignment of accrued causes of action.
Section 2.210(b) of the Texas Business and Commerce Code similarly permits the transfer of accrued causes of action despite agreements prohibiting assignment:
(b) . . . . A right to damages for breach of the whole contract or a right arising out of the assignor’s due performance of his entire obligation can be assigned despite agreement otherwise.

TEX. BUS. & COMM. CODE ANN. § 2.210(b) (Vernon 1994) (emphasis added). Courts have applied this same UCC provision in allowing the assignment of contractual causes of action even when the contract at issue prohibited assignment. See, e.g., Morris v. Zusman, CV 3:09-CV-620-PK, 2012 U.S. Dist. LEXIS 31854 at *26 (D. Ore. March 9, 2012) (“RaveSim’s assignment to Morris of its right to sue Cadence would be enforceable even if the Simutech/Cadence agreement purported to bar such assignments — see Cal. Com. Code § 2210(2) (‘[a] right to damages for breach of the whole contract or a right arising out of the assignor’s due performance of his or her entire obligation can be assigned despite agreement otherwise’); Kraft Reinsurance Ireland, Ltd. v. Pallets Acquisitions, LLC, Civ. Action No. 1:09-CV-3531, 2011 U.S. Dist. LEXIS 131308 at * 31-32 (N. D. Ga. Sept. 30, 2011) (“Georgia courts recognize that ‘while a warranty cannot be assigned, the UCC does authorize the assignment of a purchaser’s claim for an existing breach of the warranty.’ This assignment of the purchaser’s claim, indeed, is expressly authorized by OCGA § 11-2-210(2), which states that ‘a right to damages for breach of the whole contract . . . can be assigned despite agreement otherwise.’”).
Second, TCC’s assignment argument goes only to the claims Brownsville brought as OMPA’s assignee. It has no bearing on the claims Brownsville brought under its own PSA. CR 24:5698 (“In addition to the eleven causes of action that Brownsville alleges on its own behalf, Brownsville also seeks to bring ten claims ‘in the alternative.’ These claims, however, are expressly barred by the anti-assignment provision between TCC and OMPA.”).
Third, the Dallas Court of Appeals properly held that TCC did not move for summary judgment on all of Brownsville’s claims on the basis of the release at issue. City of Brownsville v. TCC Texas Central Co., 348 S.W.3d 348, 352 (Tex. App.–Dallas 2011, pet. filed). As the court of appeals concluded, TCC argued before the Trial Court that the release barred only some of Brownsville’s claims. CR 24:5819-22. As to five of Brownsville’s claims, TCC argued only that such claims were released under Section 11.13 of the PSAs, an argument the court rejected and which TCC has not pursued before this Court. CR 24:5522-24, 5843; CR 39:8878. TCC responds by pointing to a statement made by TCC in a supplemental motion and to a stray comment by Brownsville’s counsel (regarding whether TCC’s argument applied to “the whole enchilada”) during one of the many summary judgment hearings. Petitioner’s Brief at 24-25. But as the Dallas Court of Appeals held:
It is axiomatic that a motion for summary judgment cannot be affirmed on grounds not presented in the written motion. A party may not rely on grounds presented solely in its brief or in arguments during the summary judgment hearing to support a summary judgment. Because TCC’s motion did not raise the February 12 release as a ground for summary judgment on the City’s claims for resulting trust, conversion, theft, common law fraud or fraudulent inducement, and statutory fraud or the declaratory judgment action it filed as assignee of OMPA, the trial court’s summary judgment on these claims based on the February 12 release was improper.

Id. at 353 (emphasis added).
TCC did not move for summary judgment on all of Brownsville’s claims on the basis of the anti-assignment provision. The anti-assignment provision has no bearing on claims for breach of the Brownsville PSA. And the transfer and sale of OMPA’s accrued causes of action was permitted regardless of the scope of the anti-assignment provision. Therefore, even if this Court gives the release the broad effect sought by TCC, it must remand the case for trial. TCC’s Petition should therefore be denied.
V. The Court of Appeals properly held that Brownsville’s interpretation of the Termination Agreement and Releases was reasonable and summary judgment was therefore improper.

A. As long as Brownsville’s interpretation of the Termination Agreement and Releases was reasonable, summary judgment was improper.

Before the Trial Court, the parties advanced conflicting interpretations of the Termination Agreement and Releases. Brownsville asserted that a reasonable interpretation of the agreement was that it only released claims for breach of the 1985 Participation Agreement that applied to Brownsville, OMPA and TCC as co-owners of Oklaunion and not to claims for breach of the entirely separate 2004 Brownsville and OMPA PSAs, lengthy, detailed agreements that spelled out the parties’ rights and responsibilities with respect to the sale of Oklaunion. TCC asserted that the release released most of Brownsville’s claims, including claims for breach of the Brownsville and OMPA PSAs.
In order to properly grant TCC’s summary judgment motion, it was not enough for the Trial Court to determine that TCC’s interpretation was reasonable. Nor was it enough for the court to conclude that TCC’s interpretation of the release was more reasonable than Brownsville’s. Rather, so long as Brownsville’s interpretation was not unreasonable as a matter of law, the Trial Court was required to deny TCC’s summary judgment motion. Carr v. Christie, 970 S.W.2d 620, 623 (Tex. App.—Austin 1998, pet. denied) (“Because Carr’s interpretation is reasonable, it was error to render judgment as a matter of law on his contract claim.”); Betco Scaffolds Co. v. Houston United Casualty Ins. Co., 29 S.W.3d 341, 344 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (“Where a policy exclusion is ambiguous, a court must adopt the construction urged by the insured as long as it is not unreasonable, even if the interpretation urged by the insurer appears to be a more reasonable or accurate reflection of the parties’ intent.”); Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Industries, Inc., 907 S.W.2d 517, 520 (Tex. 1995) (“[i]f, however, the language of a policy or contract is subject to two or more reasonable interpretations, it is ambiguous.”). The Trial Court erred in refusing to do so, as the Dallas Court of Appeals properly concluded.
B. Brownsville’s interpretation of the Termination Agreement and Releases was reasonable based on the language of the agreement itself.

In the Termination Agreement and Releases, Brownsville and OMPA released TCC from:
(i) all liabilities and obligations of TCC under the Oklaunion Participation Agreement and (ii) without limiting the generality of the foregoing, all Claims arising under or in connection with, or based upon any liability or obligation of TCC under the Oklaunion Participation Agreement, whether in contract, tort or any other legal theory . . . .

CR 36:8261 at Section 4 (emphasis added). The releases were defined as the “Released Participation Agreement Claims Against TCC.” They were found in a section entitled “Releases of TCC from Liability Under Oklaunion Participation Agreement.” Id. TCC’s argument that the release applied to claims for breach of the entirely separate Brownsville and OMPA PSAs simply ignores the clear language of the Termination Agreement and Releases.
Brownsville’s contrary interpretation of the release as not encompassing claims for breach of the entirely separate PSAs was supported by the language of the agreement itself. The title of the section containing the releases at issue was “Releases of TCC from Liability under Oklaunion Participation Agreement.” CR 36:8261. The released claims were defined as the “OMPA Released Participation Agreement Claims Against TCC” and the “PUB Released Participation Agreement Claims Against TCC.” CR 36:8261. And the introductory language of the release clearly stated that it was meant solely to release claims arising under the Participation Agreement, as was required by Schedule 1.1(j) to the various PSAs:
The obligations of TCC under the TCC/PUB PSA to consummate the purchase and sale of the Oklaunion Interest and related transactions contemplated thereby are subject to the condition precedent (among other conditions precedent) that, at or prior to the Closing, OMPA and PUB shall have released TCC from liability under the Oklaunion Participation Agreement pursuant to a written release or other instrument in form and substance reasonably satisfactory to TCC. TCC has requested PUB and OMPA to furnish such release and PUB and OMPA are effecting such release pursuant to this Termination Agreement and Release.

CR 36:8258 at Section I (emphasis added).
Under Texas law, “any claims not clearly within the subject matter of the release are not discharged.” Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 93, 939 (Tex. 1991); see also Vela v. Pennzoil Producing Co., 723 S.W.2d 199, 204 (Tex. App.—San Antonio 1986, writ ref’d n.r.e.) (“Any claims not clearly within the subject matter of the release are not discharged, even if such claims existed at the time the release was executed.”). Here, the release at issue made no mention of claims arising under the Brownsville or OMPA PSAs. CR 36:8261. The parties’ failure to include within the release any mention of claims for breach of the OMPA and Brownsville PSAs — including claims that were pending in the parties’ ongoing lawsuit — supports the notion that such claims were not released. See, e.g., Baty v. Protech Ins. Agency, 63 S.W.3d 841, 854 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (“[s]ignificantly, at the time the parties entered into the ‘Settlement and Rescission Agreement,’ the breach of fiduciary duty claims BAI and Baty had asserted against Malliaros and Neill were pending, yet the parties did not refer to these claims in the settlement agreement. . . . . This silence supports an inference that the parties did not intend to include tort claims in the settlement agreement.”); CKB & Associates, Inc. v. Moore McCormack Petroleum, Inc., 734 S.W.2d 653, 655-56 (Tex. 1987) (“The settlement agreement released MMP from any claims and causes of action arising out of the presentation of the two quality drafts while claims arising out of the presentment of the volume draft were not mentioned. This silence raises an inference that the parties did not intend to preclude the volume draft presentment causes of action by the settlement agreement.”). Given the above facts, Brownsville’s interpretation of the release as not releasing claims for breach of the Brownsville and OMPA PSAs was clearly reasonable. The Trial Court therefore erred in granting summary judgment to TCC as the Dallas Court of Appeals concluded.
C. Brownsville’s interpretation of the Termination Agreement and Releases was reasonable based on the historical origin of the agreement.

Brownsville’s interpretation of the release was also reasonable based on the historical origin of the agreement. As stated in the release, “[t]he obligations of TCC under the TCC/PUB PSA to consummate the purchase and sale of the Oklaunion Interest and related transactions contemplated thereby are subject to the condition precedent (among other conditions precedent) that, at or prior to the Closing, OMPA and PUB shall have released TCC from liability under the Oklaunion Participation Agreement . . . .” CR 36:8258 at Section I. That condition precedent had its origins in the Golden Spread PSA, a document properly considered in interpreting the Termination Agreement and Releases because it related to the same transaction and was expressly referenced in the release. DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 102 (Tex. 1999) (“all writings that pertain to the same transaction will be considered together, even if they were executed at different times and do not expressly refer to one another.”)
In particular, the Seller’s Conditions to Closing in the Golden Spread PSA included TCC’s receipt of ‘Seller’s Required Consents,” a term defined as the release “specified on Schedule 1.1(j)” to the Golden Spread PSA, which stated:
1. The Oklaunion Owners, other than seller, TCC Texas North Company (f/k/a West Texas Utilities Company) and Public Service Company of Oklahoma, shall have released Seller from liability under the Oklaunion Participation Agreement . . . .

CR 1:118; CR 1:58; CR 1:205 (emphasis added). Thus, under the Golden Spread PSA, Golden Spread, a non-owner of Oklaunion, was required to obtain from Brownsville and OMPA a release of TCC from liability under the Oklaunion Participation Agreement to which they were parties. Because it was selling its interest in Oklaunion to Golden Spread, it made perfect sense that TCC wanted to terminate any potential liability to Brownsville and OMPA under the Oklaunion Participation Agreement which governed their relationship as co-owners.
At the time Schedule 1.1(j) was included in the Golden Spread PSA, Brownsville and OMPA had not even exercised their rights of first refusal much less signed a PSA of their own. Moreover, once Brownsville and OMPA exercised their rights of first refusal and signed their PSAs, the Golden Spread PSA became null and void. It therefore makes no sense that a condition of closing the sale to Golden Spread would be the release of TCC from liability under the Brownsville or OMPA PSAs; once those PSAs came into existence, there could be no closing of the Golden Spread PSA. As such, the release called for under Schedule 1.1(j) could not possibly be meant to encompass claims arising under the Brownsville or OMPA PSAs.
Moreover, the release called for in Schedule 1.1(j) of the Golden Spread PSA did not require any release at all from Golden Spread. It required only a release from “the Oklaunion Owners,” which were defined as including only the then-current owners of Oklaunion (Brownsville and OMPA). CR 1:205. Thus, under the Golden Spread PSA, Golden Spread was not required to release claims for breach of its PSA in order to close the transaction. Given this fact, the identically worded Schedule 1.1(j) to the Brownsville and OMPA PSAs could not possibly require those entities to release claims arising under their respective PSAs. As the Dallas Court of Appeals properly concluded:
The release contemplated under schedule1.1J did not address or attempt to release TCC’s liabilities and obligations under the separate purchase and sale agreement but rather made the sale contingent on obtaining a release from extra-contractual entities with respect to TCC’s liabilities under the participation agreement. TCC’s and the trial court’s construction of the February 12 release ignores this distinction, while a construction of the release acknowledging the separate liabilities and obligations arising from each of these separate contracts is in harmony with the facts and circumstances surrounding the release’s requirement and ultimately, its execution.

City of Brownsville, 348 S.W.3d at 355.
D. Brownsville’s interpretation of the Termination Agreement and Releases was reasonable based on the purpose of the agreement.

The Brownsville PSA was signed on May 25, 2004. CR 7:1522. It was intended to allow the sale of TCC’s interest in Oklaunion to Brownsville for $42.75 million. Brownsville and OMPA signed the Termination Agreement and Releases on February 12, 2007 to be effective at closing, which occurred on February 14, 2007. The release was intended to fulfill the obligation found in Schedule 1.1(j) to their respective PSAs that Brownsville and OMPA provide TCC a release from “liability under the Oklaunion Participation agreement.” CR 1:118; CR 1:58; CR 1:205.
The Trial Court’s broad interpretation of the release agreement would lead to the unreasonable conclusion that Brownsville signed a lengthy, detailed PSA containing numerous obligations on the part of TCC and, before the sale even closed, released TCC from liability in the event it breached those obligations. The Trial Court’s interpretation of the release essentially rendered meaningless all of the pre-closing and post-closing obligations in the 96-page PSA, including:

● The obligation of TCC under Section 2.5 of the PSA to control certain
ongoing litigation;

● The obligation of TCC under Section 3.5(b) of the PSA to make certain
post-closing adjustments to the purchase price;

● The obligation of TCC under Section 3.7 of the PSA to file tax returns
consistent with the allocation of the purchase price;

● The obligation of TCC under Section 3.8 of the PSA to refund any overpaid
sales taxes;

● The obligation of TCC under Section 6.10 of the PSA to provide certain
post-closing assurances;

● The obligation of TCC under Section 6.17 of the PSA to make certain
post-closing emission allowance adjustments;

● The obligation of TCC under Section 7.2 of the PSAs to indemnify
Brownsville from certain claims; and

● The obligation of TCC under Section 11.8 of the PSA to resolve certain
post-closing disputes pursuant to specified dispute resolution procedures.

CR 23:5430, 5436, 5438, 5440, 5461, 5466, 5472, 5435. By contrast, Brownsville’s alternative interpretation of the Termination Agreement and Releases was consistent with the purpose of the release agreement, the purpose of the Brownsville PSA and the numerous post-closing obligations of TCC under the Brownsville PSA.
E. Brownsville’s interpretation of the Termination Agreement and Releases was reasonable based on the terms of the Brownsville PSA.

“Under generally accepted principles of contract interpretation, all writings that pertain to the same transaction will be considered together, even if they were executed at different times and do not expressly refer to one another.” DeWitt County Elec. Coop., 1 S.W.3d at 102; City of Keller v. Wilson, 168 S.W.3d 802, 811 (Tex. 2005) (“Even writings executed at different times must be considered together if they pertain to the same transaction.”). The Termination Agreement and Releases was specifically required by the Brownsville PSA, made specific reference to it and was part of the same transaction. CR 36:8257-58 at Recitals F, I. As such, in construing the Termination Agreement and Releases, the Trial Court was required to examine the terms of the Brownsville PSA, including Section 11.15, which stated:
Section 11.15 Survival
(b) The covenants and agreements of the Parties contained in this Agreement, including those set forth in ARTICLE 7, shall survive the Closing indefinitely, unless otherwise specified herein.

CR 23:5488 (emphasis added). Section 11.15 was clear and unequivocal. It commanded that the parties’ covenants and agreements shall survive the Closing indefinitely. Section 11.15 clearly preserved Brownsville’s ability to bring claims against TCC arising from its breach of the PSA even after the closing and the required execution of the Termination Agreement and Releases that was a condition precedent to closing.
The Trial Court was required to harmonize any seemingly conflicting language contained in the various agreements, including the Brownsville PSA, so that none of the contractual provisions would be rendered mere surplusage. See, e.g., Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006) (“we 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.”). A court “may not interpret [a] single provision in question to so distort and contradict the other express provisions and the whole tenor and effect of the parties’ contract.” Priem v. Shires, 697 S.W.2d 860, 865 (Tex. App.–Austin 1985, no writ).
The Trial Court’s interpretation of the release violated these well-established principles by rendering meaningless Section 11.15 of the PSA, which specifically stated that the agreements contained in the PSA survived closing. The Trial Court’s interpretation also conflicted with the maxim that the specific controls over the general since Section 11.15 specifically stated that the obligations under the PSAs survived closing while the Termination Agreement and Releases was alleged to indirectly effect a release of claims arising under the PSAs. See, e.g., GAF Corp. v. Bamber, 29 S.W.3d 650, 653 (Tex. App.—Beaumont 2000, pet. abated) (“[I]t is a well established rule of construction that the specific language of an instrument controls over its general terms.”); Ensearch Corp. v. Houston Oil & Minerals, Corp., 743 S.W.3d 654, 657 (Tex. App.—Houston [1st Dist.] 1987, writ denied) (“in resolving contractual disputes, courts must give full effect to particular clauses over more general clauses.”). By contrast, Brownsville’s interpretation of the release was consistent with the terms of the PSAs, including Section 11.15.
F. Brownsville’s interpretation of the Termination Agreement and Releases was reasonable based on the actions of the parties following its execution.

“The conduct of the parties following the agreement is a critical factor to be considered in determining the intention of the parties.” C.A. Dwyer 1962 Trust v. Taub, No. 01-86-00826-CV, 1988 Tex. App. LEXIS 30 (Tex. App.—Houston [1st Dist.] Jan. 7, 1988, no writ). Parties’ failure to dismiss claims following a settlement or release is evidence that they never intended to settle or release such claims:
When parties release claims made in pending litigation, the logical next step is to dismiss those pending claims. This is what happened to the claims in the Letter of Intent Suit immediately after the Settlement Agreement was executed. However, the claims in the California Patent Cases were not dismissed. That litigation proceeded. . . . The parties’ conduct after the purported release of the California Patent Cases is objective evidence that neither party intended to settle those cases when they settled the Letter of Intent Suit.

Bolle, Inc. v. American Greetings Corp., 109 S.W.3d 827, 837 (Tex. App.—Dallas 2003, pet. denied).
After the signing of the Termination Agreement and Releases on February 12, 2007 and the sale of TCC’s interest in Oklaunion on February 14, 2007, no claims were dismissed by any party. CR 36:8206 at par. 27. Nor did TCC take any action to obtain dismissal the then-pending claims. Instead, on January 16, 2007, just two days after the transaction closed, the City Commission of Brownsville authorized its attorneys to “secure counsel to seek additional damages regarding underlying claims.” CR 36:8273. The case remained inactive until April 27, 2007, when Brownsville filed a motion to lift the abatement of the suit so it could assert additional claims against TCC. TCC did not oppose the motion. CR 18:3665
If as TCC suggests, the parties intended through the Termination Agreement and Releases to release any and all claims or potential claims by Brownsville against TCC, then TCC would have insisted that the lawsuit be dismissed following the execution of the Termination Agreement and Releases on February 12, 2007. It would have opposed Brownsville’s motion seeking to lift the abatement of the underlying suit. The fact that it did neither is further evidence of the reasonableness of Brownsville’s interpretation of the agreement.
G. TCC failed to demonstrate that Brownsville’s interpretation of the Termination Agreement and Releases was unreasonable.

Nowhere in its Briefs before the Dallas Court of Appeals or in Petitioner’s Brief before this Court has TCC established that Brownsville’s interpretation of the Termination Agreement and Releases was unreasonable as a matter of law. In fact, the only argument TCC has ever made as to why Brownsville’s interpretation was flawed was that it would render the second clause of the release superfluous. Appellee’s Brief at pp. 9-10; Petitioner’s Brief at 23. But this argument ignores the specific language of the two clauses at issue, which released TCC:
of and from (i) all liabilities and obligations of TCC under the Oklaunion Participation Agreement and (ii) without limiting the generality of the foregoing, all Claims arising under or in connection with, or based upon any liability or obligation of TCC under the Oklaunion Participation Agreement, whether in contract, tort or any other legal theory, which any one or more of the PUB Releasors ever had, now has or hereafter may have against the TCC Releasees (the “PUB Released Participation Agreement Claims Against TCC”).

CR 36:8261. Given the underlined language above, the second clause of the release was broader than the first in that the first close relates only to the actual performance of contractual obligations while the second relates to claims for a failure of performance. City of Brownsville, 348 S.W.2d at 355-56 (“Given the plain meaning of the release language, it is not necessary to construe the second clause as barring claims based on the separate purchase and sale agreements for it to have meaning.”). The second clause is also broader in that it explicitly refers to tort claims while the first clause does not; the Trial Court even recognized as much. RR. Vol. 2 at 109 (“In one way it is broad is that it covers — it covers tort claims that arise out of the transaction.”). Because TCC failed to demonstrate that Brownsville’s alternative interpretation of the Termination Agreement and Releases was unreasonable as a matter of law, it was not entitled to summary judgment as the Dallas Court of Appeals properly held.
CONCLUSION AND PRAYER
Respondent respectfully prays that this Court deny the Petition for Review and affirm the ruling of the Dallas Court of Appeals.
Respectfully submitted,
/s/ Eric D. Pearson
Eric D. Pearson
State Bar No. 15690472
HEYGOOD, ORR & PEARSON
2331 W. Northwest Highway
Second Floor
Dallas, Texas 75220
214-237-9001 Telephone
214-237-9002 Facsimile
eric@hop-law.com

CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of the foregoing instrument was served upon all counsel of record by certified mail, return receipt requested in accordance with Rule 21a of the Texas Rules of Civil Procedure on the 26th day of March, 2012.

/s/ Eric D. Pearson
Eric D. Pearson _________________________________________ Eric D. Pearson

APPENDIX

A. OMPA Purchase and Sale Agreement (selected portions).
B. February 2007 Agreement Assigning Claims between Brownsville and
OMPA.

C. Termination Agreement and Releases.
D. Trial Court’s Final Summary Judgment.
E. Dallas Court of Appeals’ opinion in City of Brownsville v. TCC Texas
Central Co., 348 S.W.3d 348 (Tex. App.–Dallas 2011, pet. filed).

.