Opinion

Trevania Dudley Henderson v. Robert Dwayne Johnson

Court: Court of Appeals of Tennessee
Filed: Feb 27, 2025
Status: Published
On the bench: Judge Jeffrey Usman
Cited by: 0 cases
Authority: More cited than 34.3%

directing courts to discern a testator’s directions “from the particular words used in the will”

How later courts described this case

directing courts to discern a testator’s directions “from the particular words used in the will”
noting “[i]t is not the role of the courts, trial or appellate, to research or construct a litigant’s case or arguments for him or her”
first citing Christenberry v. Tipton, 160 S.W.3d 487, 494 (Tenn. 2005), then citing Planters Gin Co. v. Fed Compress & Warehouse Co., 78 S.W.3d 885, 889-90 (Tenn. 2002)

Written by the judges who cited it.

The opinion

02/27/2025

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 5, 2025 Session

TREVANIA DUDLEY HENDERSON v. ROBERT DWAYNE JOHNSON ET

AL.

Appeal from the Chancery Court for Davidson County

No. 23-0065-III I’Ashea L. Myles, Chancellor

___________________________________

No. M2024-00270-COA-R3-CV

___________________________________

This appeal involves a property dispute between the decedent’s husband and the

decedent’s only daughter, who is a child born of a prior marriage. The chancery court

concluded that the husband had no interest in the property under the decedent’s will, as

the property had instead passed directly to the daughter, not the decedent, under the terms

of the grandmother’s will. Additionally, the chancery court concluded that any claim by

the husband was also barred by an earlier settlement agreement reached by the parties.

Under the terms of that settlement agreement, the chancery court also awarded attorney’s

fees and costs to the daughter. The husband appeals. We affirm

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

JEFFREY USMAN, J., delivered the opinion of the Court, in which ANDY D. BENNETT and

W. NEAL MCBRAYER, JJ., joined.

Grayson Smith Cannon, Nashville, Tennessee, for the appellant, Robert Dwayne

Johnson.

Taylor J. Askew & David J. Zeitlin, Nashville, Tennessee, for the appellee, Trevania

Dudley Henderson.1

OPINION

At the epicenter of this appeal is an intra-family dispute over a residential property

Appellee Rudy Title and Escrow, LLC, did not participate in this appeal.

located on Sheppard Place in Nashville, Tennessee. The parties disagree about whether

Appellant Robert Dwayne Johnson, the second husband of Jane A. Dudley, is entitled to

ten percent of the value of the property by operation of Ms. Dudley’s will. Mr. Johnson

insists that he is. Appellee Trevania Dudley Henderson, Ms. Dudley’s daughter from a

prior marriage, asserts that he is not. Ms. Henderson brought a declaratory judgment

action in Davidson County Chancery Court to resolve the dispute. The Chancery Court

agreed with Ms. Henderson that Mr. Johnson has no interest in the property and awarded

attorney’s fees and costs to Ms. Henderson. Mr. Johnson asserts error and appeals to this

court.

The origins of this case reach decades into the past. Approximately thirty years

before Ms. Dudley died, her mother, Ms. William J. Alexander, Sr., died. Ms. Alexander

was survived by five children, including Ms. Dudley and Nancy Anderson Landstreet.

Item II of Ms. Alexander’s will expressly referenced the property at issue in this case and

also Ms. Landstreet. It states:

The home in which I have lived at 4426 Sheppard Place in Nashville since

1939 was conveyed by the sellers to my son, Thomas J. Anderson, as

Trustee. My son, Thomas J. Anderson, has removed to the State of North

Carolina and for that reason has been succeeded as Trustee, holding legal

title to the property at 4426 Sheppard Place, by my son, Charles M.

Anderson. All of my children know that I am the owner of the beneficial

interest in the property. I therefore direct that Charles M. Anderson as

Trustee, or his successor trustee, hold the property in trust for the use and

benefit of my daughter, Nancy Anderson Landstreet, during her lifetime

with the remainder upon her death to be transferred in equal shares to my

children with the issue of a deceased child of mine to take the parent’s

share per stirpes.

Mr. Johnson acknowledges that the language of Ms. Alexander’s will on its own

does not convey to him any ownership interest in the property. Any claim that he has to

the property instead arises from the will of his wife, Ms. Dudley.

Ms. Dudley died in 2017, thereby predeceasing her husband, Mr. Johnson; her

daughter, Ms. Henderson; and her sister, Ms. Landstreet, who held a life estate in the

property. Mr. Johnson’s ownership claim originates from the language of Article VI of

Ms. Dudley’s will, which concerns the residue of Ms. Dudley’s estate. Section One of

Article VI expressly mentions Mr. Johnson and Ms. Henderson by name:

If my husband, DWAYNE JOHNSON, shall survive me, my Executor shall

determine the total value of my residence and all money, cash, stocks,

bonds, mutual funds, accounts, notes, investments, and other intangible

personal property including, without limitation, all of my right, title and

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interest, if any, in the real property located at 4426 Sheppard Place,

Nashville, Tennessee 37205. I give, devise, and bequeath one-half of this

amount to my said husband in fee. I give, devise, and bequeath all of the

rest, residue and remainder of the property which I may own at the time of

my death, real, personal, and mixed, tangible and intangible, of whatsoever

nature and wheresoever situated, including all property which I may acquire

or become entitled to after the execution of this Will, to my daughter,

TREVANIA DUDLEY HENDERSON, in fee.

Mr. Johnson’s position is that this section of Ms. Dudley’s will evinces an intention on

the part of Ms. Dudley to devise to him one-half of whatever ownership interest in the

Sheppard Place property Ms. Dudley owned at her death. He contends that, despite the

terms of Ms. Alexander’s will and Ms. Landstreet having outlived Ms. Dudley, Ms.

Dudley actually did have a vested 1/5 ownership interest in the Sheppard Place property

at the time of her death.

In the immediate aftermath of Ms. Dudley’s death, Mr. Johnson and Ms.

Henderson disagreed as to the administration of Ms. Dudley’s will. Hoping to avoid

“further protracted litigation and expense,” the parties executed a settlement agreement in

2018. The parties expressly stated that they “mutually desire to enter into this Agreement

in full settlement, satisfaction, discharge, and release of claims between the Parties and/or

Decedent’s Estate.”

The settlement agreement includes a recital stating “[t]he only assets owned by

[Ms. Dudley] at her death were her residence at 8621 McCrory Lane, Nashville,

Davidson County, Tennessee (the “Residence”) and [the Deceased’s] tangible personal

property located on or about the Residence.” Despite an express reference to the

Sheppard Place property in Ms. Dudley’s will (“all of my right, title and interest, if any,

in the real property located at 4426 Sheppard Place”) and Mr. Johnson’s later contention

that the Sheppard Place property is an asset owned by Ms. Dudley at the time of her

death, this property was not included among what purported to be a complete list of Ms.

Dudley’s assets at the time of her death.

There are four provisions of the settlement agreement that are particularly relevant

to this appeal. One, Mr. Johnson and Ms. Henderson, the parties to the agreement,

included a provision in their agreement entitled “Release of Claims.” It states in relevant

part,

[T]he Parties release the Estate and each other from any and all Claims.

For purposes of this Agreement, the term ‘Claims’ means any and all

actions, accounts, covenants, agreements, debts, liabilities, offsets,

demands, costs, expenses, obligations, or causes of action of every nature

(other than to enforce the obligations contained in this Agreement), whether

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known or unknown, suspected or unsuspected, arising in contract or in tort,

or at law, in equity, or pursuant to administrative rule or regulation, that

have or could have been asserted by either party or the Estate at any time.

Two, the parties included a provision that speaks to their mutual understanding and assent

to the terms of the agreement, which states:

Full Understanding and Opportunity to Consult Counsel. The parties

expressly acknowledge that they have read this Agreement in its entirety,

that they understand its terms, that they enter into this Agreement of their

own free will, and that they have been afforded the opportunity to consult

counsel about it.

Three, Mr. Johnson specifically agreed to execute a document indicating that he believed,

in accordance with the other promises contained in the settlement agreement, that the

Deceased’s estate had been properly distributed. In accordance with this provision, a day

later, Mr. Johnson signed the following statement:

STATEMENT BY RESIDUARY DISTRIBUTEE OF PROPER

DISTRIBUTION

The undersigned person, being one of the residuary distributees of the

residue of the Estate of Jane Dudley, deceased, under the decedent’s Will,

does hereby file this statement pursuant to T.C.A. § Section 30-2-601(b)(2),

and does hereby state, as evidenced by the undersigned’s signature below,

as follows:

That the undersigned person is a residuary distributee of the residue of the

estate of the decedent pursuant to the decedent’s duly probated Will; and

That the undersigned person waives and excuses the Administrator from

filing all court accountings; and

That the undersigned person acknowledges that the estate of the decedent

has been properly distributed to the undersigned; and, finally,

That the undersigned person hereby fully relieves and releases Jeffrey

Mobley, Administrator, from any and all liability in connection with the

estate.

Four, the parties included language in their settlement agreement providing for attorney’s

fees and costs in the event of breach: “In the event of breach, the party not in breach shall

be entitled to his or her attorney’s fees and costs from the party in breach.”

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Despite their 2018 settlement agreement, another dispute arose between the parties

in 2022 following the death of Ms. Dudley’s sister, Ms. Landstreet. As noted above, with

regard to the Sheppard Place property, Ms. Alexander had provided in her will as

follows:

I therefore direct that Charles M. Anderson as Trustee, or his successor

trustee, hold the property in trust for the use and benefit of my daughter,

Nancy Anderson Landstreet, during her lifetime with the remainder upon

her death to be transferred in equal shares to my children with the issue of a

deceased child of mine to take the parent’s share per stirpes.

With the death of Ms. Landstreet, Ms. Henderson, along with the other

beneficiaries within the class of individuals mentioned in Ms. Alexander’s will,

attempted to sell the property and distribute the proceeds. Mr. Johnson, however,

objected, endangering the sale. This objection prompted the parties to obtain escrow

services. Among other language of the escrow agreement, it stated the following:

WHEREAS, Mrs. Henderson claims that she owns a 20% interest in the

Property and is entitled to 20% of the proceeds from the sale of the

Property pursuant to the Sale Agreement minus her share of the shared

expenses (shared expenses include, but are not limited to, real estate

commission, tax pro rata, closing attorney fees, estate attorney fees,

recording fees, and reimbursements to family members), such 20% of such

net proceeds being the amount equal to $422,283.19 (such amount, the “Net

Proceeds”); and

WHEREAS, Mr. Johnson claims to own a 10% interest in the Property

(such 10% being one half (1/2) of the 20% interest claimed by Mrs.

Henderson) and that he is entitled to one half of the Net Proceeds, which is

the amount equal to $211,141.60;

WHEREAS, Mrs. Henderson disputes Mr. Johnson's claim in the Property

and the Net Proceeds; and

WHEREAS, Mrs. Henderson and Mr. Johnson desire that Escrow Agent

hold $215,000 of the Net Proceeds (such amount, the “Escrowed Funds”)

as escrow agent in accordance with the terms and provisions of this

Agreement and Escrow Agent is willing to serve as such escrow agent and

hold the Escrowed Funds in accordance with the terms and provisions of

this Agreement;

Additionally, the escrow agreement provided as follows:

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a. Mrs. Henderson will initiate a declaratory judgment action (hereinafter

referred to as the “DEC Action”) against Mr. Johnson and the Escrow

Agent in Davidson County Chancery Court (hereinafter referred to as the

“Court”), seeking a declaration that, inter alia, Mrs. Henderson is the real

party in interest to the Escrowed Funds.

b. Following commencement of the DEC Action, the Escrow Agent, Mrs.

Henderson, and Mr. Johnson will file a Joint Motion and Agreed Order for

the Escrow Agent to deposit the Escrowed Funds with the Court pursuant to

Tennessee Rule of Civil Procedure 67.01 (hereinafter referred to as the

“Motion”).

c. Upon the granting of the Motion and deposit of the Escrowed Funds with

the Court, Mrs. Henderson, Mr. Johnson, and the Escrow Agent will

stipulate to dismiss the Escrow Agent from the DEC Action with prejudice.

As the escrow agreement directs, Ms. Henderson brought a declaratory judgment

action in Davidson County Chancery Court for the purpose of obtaining a final

declaration concerning the rights to the proceeds of the sale of the Sheppard Place

property. Therein, Ms. Henderson asserted (1) that her mother Ms. Dudley had a

contingent not vested remainder interest in the Sheppard Place property at the time of her

death, meaning Ms. Dudley had nothing to transfer to Mr. Johnson; (2) that, alternatively,

Article VI of Ms. Dudley’s will only entitled Mr. Johnson to an amount equal to one-half

of the value of the Ms. Dudley’s estate, not a one-half interest in the property; (3) that,

regardless of these substantive points, Mr. Johnson already settled any and all claims he

had concerning the distribution of Ms. Dudley’s probate estate in 2018; and (4), that, by

objecting to the sale of the property and clouding its title, Mr. Johnson breached the

parties’ settlement agreement, entitling Ms. Henderson to any and all of her attorney’s

fees stemming from the prosecution of the declaratory judgment action. Mr. Johnson

denied any wrongdoing in his answer. He also filed a counter-complaint asserting that he

owned one-tenth of the proceeds from the sale of the Sheppard Place property, requesting

receipt of the escrowed funds, and arguing that he would be entitled to his attorney’s fees

if the trial court concluded that Ms. Henderson breached the parties’ settlement

agreement.

The parties filed cross motions for judgment on the pleadings. Leading up to the

hearing on the motions, the parties contested, among other things, whether Mr. Johnson

breached the terms of the settlement agreement. Ms. Henderson advanced this argument

across multiple pre-hearing filings before the trial court, emphasizing the express terms

of the settlement agreement demonstrated an intent on the part of each party to avoid the

very lawsuit that Mr. Johnson’s claim to an interest in the property had necessitated. Ms.

Henderson also pointed to the mandatory language in the settlement agreement regarding

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attorney’s fees and relied upon that language to support a request for attorney’s fees upon

a finding that Mr. Johnson breached the terms of the settlement agreement.

The Chancery Court agreed with Ms. Henderson and made extensive findings.

Among those findings in support of its conclusion, the Chancery Court found as follows:

(1) Ms. Alexander’s will created a life estate for the benefit of Ms. Landstreet; (2) during

that life estate, Ms. Alexander’s will gave her daughter Ms. Dudley a contingent

remainder interest in the property, and that said interest would only vest upon the death of

Ms. Landstreet; (3) because Ms. Dudley predeceased Ms. Landstreet, Ms. Dudley had no

interest in the property to devise at the time of her death, meaning Mr. Johnson has no

ownership interest in the Sheppard Place property or its proceeds. In relation to the

parties’ settlement agreement, the trial court found as follows: (1) the section of the

settlement agreement concerning the release of claims constitutes “a general release,

evidencing that the property specifically called out in the recitals does not circumscribe

the scope of the Agreement’s release”; (2) Mr. Johnson’s claim regarding the property

was not “unknown to him” at the time the parties entered the settlement agreement

because Ms. Dudley’s will mentions the property by name; (3) Mr. Johnson’s “claim to

an interest in the sale proceeds . . . was in breach of the Parties’ settlement Agreement”;

and (4) Ms. Henderson was entitled to reasonable attorney’s fees and costs associated

with her declaratory judgment action. Based on these findings, the trial court awarded

Ms. Henderson $62,630 in attorney’s fees and costs.

Mr. Johnson appealed to this court. He raises four issues on appeal. One,

“Whether the Trial Court erred in concluding that Mrs. Anderson’s Will created a trust?”

Two, “When di[d] the life estate contained in Mrs. Anderson’s Will vest: was it at the

time of Mrs. Anderson’s death or upon the death of the life tenant?” Three, “Whether the

Settlement Agreement entered into by Mr. Johnson, Ms. Henderson, and Decedent’s

Estate precludes Mr. Johnson from his share in the proceeds of the sale of the Sheppard

Property?” Four, “Whether the Trial Court erred in concluding that Ms. Henderson was

entitled to attorney’s fees under the Settlement Agreement?” Ms. Henderson responded

to Mr. Johnson’s contentions on appeal, arguing in support of the Chancery Court’s

rulings.

II.

This case was decided on competing motions for judgment on the pleadings.

Judgment on the pleadings may be sought by parties “[a]fter the pleadings are closed but

within such time as not to delay the trial.” Family Trust Servs. LLC v. Green Wise

Homes LLC, 693 S.W.3d 284, 296 (Tenn. 2024) (quoting Tenn. R. Civ. P. 12.03). “A

motion for judgment on the pleadings involves the consideration of nothing other than

what its title suggests; the motion requests that a court grant judgment based on the

pleadings alone.” Harvey v. Shelby County, No. W2018-01747-COA-R3-CV, 2019 WL

3854297, at *4 (Tenn. Ct. App. Aug. 16, 2019) (quoting Sakaan v. Fedex Corp., Inc., No.

-7-

W2016-00648-COA-R3-CV, 2016 WL 7396050, at *5 (Tenn. Ct. App. Dec. 21, 2016)).

Judgment on the pleadings may be granted when “the moving party is clearly entitled to

judgment.” Family Trust Servs. LLC, 693 S.W.3d at 296 (quoting McClenahan v.

Cooley, 806 S.W.2d 767, 769 (Tenn. 1991)). Our role, then, is to review the trial court’s

decision on the parties’ cross-motions for judgment on the pleadings, which we assess

“de novo with no presumption of correctness.” Recipient of Final Expunction Order in

McNairy County Circuit Court Case No. 3279 v. Rausch, 645 S.W.3d 160, 167 (Tenn.

2022) (citing Franks v. Sykes, 600 S.W.3d 908, 911 (Tenn. 2020)). Evaluating whether

the pleadings, on their face, entitle one party to a favorable judgment is itself a question

of law, which we similarly review de novo. Franks, 600 S.W.3d at 911.

III.

The parties’ briefing demonstrates agreement on at least three basic points. One,

Ms. Alexander’s will gave Ms. Landstreet a life estate in the property. Two, Ms.

Alexander’s will gave Ms. Dudley a future interest in the property. Three, Ms. Dudley’s

future interest took the form of a remainder.

In considering where the parties divide, Mr. Johnson’s positioning on appeal

brings to mind the idiom “out of the frying pan and into the fire,”2 which refers at a

minimum to leaping “from one bad predicament to another which is as bad”3 and often to

a circumstance that is “even worse.”4 The Chancery Court concluded that Ms. Dudley’s

interest in the Sheppard Place property constituted a contingent, not a vested, remainder.

Accordingly, at the time of her death, Ms. Dudley had no interest in the property to

confer upon Mr. Johnson via her will. Therefore, Mr. Johnson obtained no interest in the

property via Ms. Dudley’s will and, thus, has no interest in the Sheppard Place property.

Mr. Johnson does not dispute that if Ms. Dudley’s interest in the property was

contingent and not vested, then he has no interest in the property. The first two issues

that Mr. Johnson raises on appeal act together to advance Mr. Johnson’s argument that

Ms. Dudley’s interest in property was vested, not contingent, at the time of her death,

which occurred before the death of the life tenant, Ms. Landstreet.

“The origins of this idiom in the English language can be traced to 1528 and the writings of the

legendary Thomas More, but this particular idiomatic image of moving from the frying pan into the fire

can be traced even further back to the mid-1350s and Giovanni Boccaccio’s The Decameron.” Berryhill

v. Shelby Cnty. Gov’t Civ. Serv. Merit Bd., No. W2022-01814-COA-R3-CV, 2024 WL 735417, at *6 n.9

(Tenn. Ct. App. Feb. 22, 2024).

Judy Parkinson, From Hue and Cry to Humble Pie: Curious, Bizarre, & Incomprehensible

Expressions Explained 81 (2000).

Joseph Melillo & Edward M. Melillo, American Slang: Cultural Language Guide to Living in

the USA 249 (2005).

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Returning to the idiom, the Chancery Court’s contingent remainder analysis

provides the frying pan out of which Mr. Johnson, to prevail on appeal, must leap. Mr.

Johnson does not dispute that if the interest is contingent, as the Chancery Court found it

to be, then he has no interest in the Sheppard Place property irrespective of what Ms.

Dudley’s will may have attempted to provide him. However, when Mr. Johnson

endeavors to leap out of that frying pan, he still finds himself squarely in the fire of the

settlement agreement. That is so because even if Ms. Dudley owned a vested remainder

when she died, Mr. Johnson signed away his ability to make a claim to any such interest

through the parties’ settlement agreement. The Chancery Court reached this conclusion,

and, we conclude, properly so.

The judiciary encourages parties to work amicably to settle legal disputes outside

the court system. Harbour v. Brown for Ulrich, 732 S.W.2d 598, 599 (Tenn. 1987);

Lovelace v. Copley, 418 S.W.3d 1, 29 (Tenn. 2013) (collecting cases). The parties in this

case did just that, memorializing a compromise over Ms. Dudley’s assets.

“A settlement agreement made during the course of litigation is a contract between

the parties, and as such, contract law governs disputes concerning the formation,

construction, and enforceability of the settlement agreement.” Waddle v. Elrod, 367

S.W.3d 217, 222 (Tenn. 2012); Barnes v. Barnes, 193 S.W.3d 495, 498 (Tenn. 2006).

The rules for interpreting settlement agreements are no different from general rules of

contractual interpretation. Waddle, 367 S.W.3d at 222. The “cardinal rule of contract

interpretation is to ascertain and give effect to the intent of the parties,” and “courts look

to the plain meaning of the words in the document to ascertain the parties’ intent.”

Allstate Ins. Co. v. Watson, 195 S.W.3d 609, 611 (Tenn. 2006) (first citing Christenberry

v. Tipton, 160 S.W.3d 487, 494 (Tenn. 2005), then citing Planters Gin Co. v. Fed

Compress & Warehouse Co., 78 S.W.3d 885, 889-90 (Tenn. 2002)). When a contract is

clear and unambiguous, “the literal meaning controls the outcome of the dispute.” Id.

We review the trial court’s interpretation of the parties’ settlement agreement in this case

de novo, “according no presumption of correctness to the trial court’s conclusions of

law.” See id.

The Chancery Court concluded that Mr. Johnson, in ratifying the parties’

settlement agreement, promised Ms. Henderson that he would not pursue any claims

against her or the Deceased’s estate, and this agreement includes within its scope his

present claim to one-half of the value of the Sheppard Place property. The Chancery

Court based its ruling on the following language from the settlement agreement:

[T]he Parties release the Estate and each other from any and all Claims.

For purposes of this Agreement, the term ‘Claims’ means any and all

actions, accounts, covenants, agreements, debts, liabilities, offsets,

demands, costs, expenses, obligations, or causes of action of every nature

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(other than to enforce the obligations contained in this Agreement), whether

known or unknown, suspected or unsuspected, arising in contract or in tort,

or at law, in equity, or pursuant to administrative rule or regulation, that

have or could have been asserted by either party or the Estate at any time.

In the Chancery Court’s view, this extraordinarily expansive language constituted a

“general release,” which is a term used in Tennessee to describe settlement agreement

provisions that apply to “all claims between the parties which are in existence and within

their contemplation” at the time of ratification. See, e.g., Richland Country Club, Inc. v.

CRC Equities, Inc., 832 S.W.2d 554, 557 (Tenn. Ct. App. 1991) (citing Cross v. Earls,

517 S.W.2d 751 (Tenn. 1974)). General releases are distinguished from specific releases,

which are “confined to specific matters or causes, and operate[] to release such claims

that fairly come within the terms of the release.” Sherman v. American Water Heater

Co., Inc., 50 S.W.3d 455, 459 (Tenn. Ct. App. 2001).

There are challenges in fully discerning Mr. Johnson’s argument as to why the

Sheppard Place property is not covered by the terms of the parties’ settlement agreement.

As we understand Mr. Johnson’s briefing on this matter, it appears that he presents three

arguments in support of his contention that the Chancery Court erred. One, he implicitly

argues for an understanding of the settlement agreement as providing for a specific rather

than general release and suggests that because the Sheppard Place property was not

expressly referenced in settlement agreement, there was no release of his claim. Two,

relatedly, Mr. Johnson suggests a lack of a knowing and voluntary waiver of his interest

in the Sheppard Place property. Three, he asserts that the settlement agreement only

relates to probate assets, and Mr. Johnson’s interest in the Sheppard Place property is not

a probate asset.

Starting with Mr. Johnson’s objection to the Chancery Court’s understanding of

the scope of the parties’ settlement agreement, we agree with the trial court that the

release provision constitutes a general, rather than a specific, release of claims.

Regarding their settlement agreement, Mr. Johnson and Ms. Henderson stated they

“mutually desire to enter into this Agreement in full settlement, satisfaction, discharge,

and release of all claims between the Parties and/or Decedent’s Estate.” As noted above,

the language of the release provides as follows: