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Barker v. Roelke3/20/2003
e being deceitful?
Jackie Jay's deposition testimony establishes that appellant knew of Jackie Jay's and Thompson's alleged misrepresentations in January 1998. Therefore, the record conclusively establishes that appellant ratified the releases after knowing of Jackie Jay's and Thompson's alleged misrepresentations for more than two years before seeking to set aside the releases.
Appellant asserts in Sub-issue No. 1c that the doctrine of quasi-estoppel bars appellees from asserting the defense of ratification. Quasi-estoppel precludes a party from asserting, to another's disadvantage, a right inconsistent with a position previously taken. See Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex.2000). Appellant bases his quasi-estoppel argument on a letter written by appellees' attorney in March 1998 to counsel for appellant. The letter outlined counsel's assessment of the effect which Jackie Jay's claims would have on the settlements reached with appellant and Ronald Jay. Appellant contends that this letter had the effect of suspending his settlement with the Roelkes pending a judicial determination of Jackie Jay's claims. We disagree with appellant's contention that the letter suspended his settlement with the Roelkes. The letter was written several months after appellant had executed the releases and received all of the money which he was entitled to receive under the settlements. Additionally, the letter was written after appellant had already ratified the releases. Furthermore, we decline to hold that a letter written to opposing counsel addressing the effect of another party's claims on a pending dispute constitutes the "taking of a position" for quasi-estoppel purposes. Moreover, even if one treats the letter as a repudiation of the settlement by appellees, appellant's ratification of the contract prevented him from seeking to rescind the contract. See Griffith v. Porter, 817 S.W.2d 131, 145 (Tex.App. B Tyler 1991, no writ); Payne v. Baldock, supra at 509.
Appellant's Sub-issue No. 1d alleges deficiencies in appellees' assertion of the defense of accord and satisfaction. The accord and satisfaction defense rests upon a contract, express or implied, in which the parties agree to the discharge of an existing obligation by means of a lesser payment tendered and accepted. See Lopez v. Munoz, Hockema & Reed, L.L.P., supra at 863. A few cases have specifically addressed the defense of accord and satisfaction with respect to the settlement of tort claims. See Marsalis v. Garre, 391 S.W.2d 522 (Tex.Civ.App. B Amarillo 1965, writ ref'd n.r.e.). Appellees asserted the defense of accord and satisfaction in their motions for summary judgment in addition to asserting release as a defense. The defense of release in the context of settling of a tort claim involves the same elements as an accord and satisfaction in a contractual setting. Our resolution of appellees' defense of release is therefore applicable to the assertion of the defense of accord and satisfaction.
Appellant argues in Sub-issue No. 1e that appellees' summary judgment grounds of release and ratification do not defeat his claims for conversion and breach of contract. Relying upon his global settlement allegation, he contends that the $5,500,000 which appellees paid to Jackie Jay in settlement of her claims should have been paid to him. Appellant advances this argument even though some portion of this sum obviously compensated Jackie Jay for claims not released in the releases which he executed, including the claim for her own personal injuries and her claim against appellees regarding the manner in which her claim was handled. Appellant's conversion and breach of contract claims are dependent upo
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