                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00119-CV


CONGLOMERATE GAS II, L.P. AND                     APPELLANTS AND APPELLEES
VANCOUVER SKY MANAGEMENT,
L.L.C.

                                        V.

GREGG GIBB                                          APPELLEE AND APPELLANT


                                     ----------

            FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 236-237790-09

                                     ----------

                MEMORANDUM OPINION ON REHEARING1

                                     ----------

        Appellee and Cross-Appellant Gregg Gibb filed a motion for rehearing and

a motion for reconsideration en banc of our opinion that issued on August 6,

2015.       We deny both motions, withdraw our opinion and judgment dated




        1
        See Tex. R. App. P. 47.4.
August 6, 2015, and substitute the following to address Gibb’s arguments on

rehearing.

                                I. INTRODUCTION

      Gibb sued Appellants and Cross-Appellees Conglomerate Gas II, L.P. and

Vancouver Sky Management, L.L.C. to recover damages for Appellants’ failure to

comply with an alleged agreement to assign Gibb a back-in working interest in

minerals under a tract of land that Gibb helped Conglomerate CEO D. Alan

Meeker sell.   A jury ultimately sided with Gibb, awarding him damages and

attorneys’ fees. Appellants raise five issues on appeal, but we address only their

first because it is both meritorious and dispositive. Gibb raises four conditional

cross-points, but they are unpersuasive. Therefore, as to Gibb’s cross-appeal,

we will affirm, but as to Appellants’ appeal, we will reverse and render a

judgment that Gibb take nothing on his contract claim.

                                II. BACKGROUND

      Meeker is an oil and gas and real estate businessman based in Fort

Worth.   At the times relevant to this case, he managed and conducted the

business operations of several Texas limited liability companies, including

Crestview Farm, L.L.C. and Crestview Resources, L.L.C. Meeker also served as

the CEO of Conglomerate, a Texas limited partnership formed to perform oil and




                                        2
gas development and production in the Barnett Shale, and as the manager of

Vancouver Sky Management, L.L.C., Conglomerate’s general partner.2

      Gibb is a licensed real estate broker with over forty years’ experience. He

focuses his business on large tracts of real estate located in and around the

Dallas/Fort Worth area.

      Rock Creek Ranch is a 2,233-acre tract of undeveloped land located

approximately half an hour south of Fort Worth. As of the late 1980s, MTV Real

Estate Limited Partnership owned 100% of the surface estate and 50% of the

mineral estate. Rock Creek Ranch’s previous owners retained the other 50% of

the mineral estate and leased it to Carrizo Oil & Gas.

      A.    Rock Creek       Ranch     Transactions      and   Gibb’s   Brokerage
            Commission

      Operating through Crestview Farm, Meeker contacted MTV in June 2004

and offered to purchase Rock Creek Ranch. Several months later, in October

2004, Crestview Farm and MTV entered into a Purchase and Sale Agreement

whereby MTV agreed to sell the entire surface estate of Rock Creek Ranch to

Crestview Farm for $20,097,000, or $9,000 per acre. MTV also agreed to deliver

an oil and gas mineral lease to Crestview Farm’s choice of either Crestview

Resources or Antero Resources.




      2
      Our reference to Appellant Conglomerate Gas II, L.P. as Conglomerate
should not be confused with Conglomerate Gas I, another entity that Meeker
formed.

                                         3
        Crestview Farm did not have the money to cover the $20 million purchase

price, but according to Meeker, he planned to collaborate with a partner to

develop the land. A development deal never came to be, so with the help of

retained Washington, D.C. attorney Ross Eichberg, Meeker searched for a buyer

to flip 1,983 acres of Rock Creek Ranch’s surface.3 MTV agreed to extend the

Purchase and Sale Agreement several times, and Crestview Farm paid MTV

$10,000 per month for the option to keep the Purchase and Sale Agreement

open.

        In late April 2005, Eichberg contacted Gibb about finding a buyer for Rock

Creek Ranch.      Gibb met Meeker sometime soon thereafter and toured the

property. In a May 1, 2005 letter that Meeker addressed to Gibb, Meeker set out

detailed information about Rock Creek Ranch, including the status of the mineral

interests.4 By the next day, May 2, 2005, Gibb had started working to sell the

tract even though he did not have a brokerage agreement in place. Gibb did so

because “[t]ime was of the essence. This property was ready to sell.”

        One of the potential buyers for Rock Creek Ranch was the Texas General

Land Office (GLO), which at the time was seeking to purchase real estate for

investment.     Jim Rose at the GLO had contacted Matthew Hurlbut at

        3
        Meeker planned to keep the remaining 250 acres for his personal use.
        4
       Meeker stated that he and his brother “own an oil & gas company, which
has the lease commitment on the 1116 net acres that the Seller now owns. Our
lease has been committed to our exploration and development agreement with
our development partner.”

                                         4
Transwestern, a real estate brokerage firm, and Henry Knapek at Transwestern

contacted Gibb, whom Knapek knew from a previous transaction. On May 3,

2005, Gibb gave Knapek and Hurlbut a list of tracts that Gibb thought might be of

interest to the GLO. One of the tracts was Rock Creek Ranch. Gibb, Rose, and

the Transwestern brokers met and toured the property, and Gibb reached a

handshake deal with Transwestern that if Gibb sold Rock Creek Ranch to the

GLO, he would split the commission 50/50 with Transwestern.

      On May 3, 2005, Eichberg emailed Gibb a brokerage agreement dated the

same day and between Crestview Farm, Gibb, and Roca Beda Properties, LLC,

a brokerage company used by Eichberg. The agreement stated that Crestview

Farm hires Roca Beda and Gibb to find a buyer; that Crestview Farm intended to

offer to sell Rock Creek Ranch’s surface estate, less 250 acres, for $21,213,500;

and that approximately $20,097,000 of the purchase price would be paid to the

owner of the property (MTV) pursuant to Crestview Farm’s option agreement.

Regarding a brokerage fee to be paid by Crestview Farm, the agreement

provided that the fee would equal the difference between the amount that

Crestview Farm paid MTV for the property ($20,097,000) and the amount that

Crestview Farm received for the resale of the property, with 80% of that figure

paid to Gibb and 20% paid to Roca Beda.5 However, if the fee was $500,000 or


      5
       The agreement gave an illustration: “[I]f the actual purchase price paid by
Buyer is $21,213,500, then the Fee will be $1,116,500 (shared by Roca Beda
and [Gibb] per section 3 below)[.]”

                                        5
less, then Gibb would “retain the entire Fee and Roca Beda [would] be ‘made

whole’ pursuant to a separate agreement with Crestview.” Gibb did not like the

offer—obviously, because depending on the resale price, which was unknown at

that point, the potential existed that he could be paid a brokerage fee as little as

$1, and Gibb did not “work for $1 or $10 for something like this”—so he struck

through the portion of the “$500,000 or less” language and wrote in the margin,

“No expenses” and “The minimum fee will be 500,000.”            Gibb returned the

document to Eichberg.

      Meeker considered Gibb’s request for a minimum $500,000 commission

unacceptable. He claimed, “From the very beginning I had told [Gibb] . . . that all

expenses of the sale, including the brokerage commission, had to be borne by

the sale of the Rock Creek bed.” [Emphasis added.] Meeker reiterated this in an

email that he sent Gibb on May 16, 2005, regarding a brokerage commission

owed Gibb if Hillwood (another potential buyer) purchased Rock Creek Ranch.

Gibb understood Meeker’s email to mean that to make a commission, he would

“have to add it on . . . the base price [of] $20,097,000.”

      By mid to late May 2005, Hillwood was still in the running to purchase

Rock Creek Ranch, but the GLO was the most promising prospect in Crestview

Farm’s opinion because it could pay cash, close quickly, and was not concerned

about obtaining zoning.     Although Meeker opposed paying Gibb a minimum

commission, Gibb continued to ask for one after the May 16, 2005 email.



                                          6
Meeker therefore decided that he “would try to come back to [Gibb] with an offer

that would . . . probably bridge a gap.”

      On May 23, 2005, Meeker sent Gibb the following email:

      This email is to notify you that I have agreed that you would be due
      a commission under the terms of our commission agreement should
      you be successful in closing a sale of the Rock Creek Ranch,
      through Crestview Farm LLC (Crestview), to the [GLO]. Crestview
      will not accept any offer lower than $20,097,000.00, nor will
      Crestview bring any money to a closing table to pay brokerage fees.
      All costs of the sale must be borne by the transaction and payable
      out of funds at the closing brought by a buyer.

            Additionally, in the event you are successful in selling the
      surface of the Rock Creek Ranch to the [GLO], and [Conglomerate]
      leases the Minerals under the Rock Creek Ranch, Conglomerate will
      assign to you a 3% back in working interest on a well-by-well basis
      on the acreage Conglomerate leases under the aforementioned
      ranch.

             Agreed and Accepted this 23[rd] day of May, 2005

             /s/ D. Alan Meeker
             CEO Conglomerate Gas II LP. [Emphasis added.]

Gibb understood the first paragraph to mean that Crestview Farm would not

guarantee a minimum commission. As for the second paragraph, Gibb called

Meeker and asked him what he meant by a 3% back-in working interest on a

well-by-well basis. According to Gibb, Meeker said, “[T]hat’s a lot more than your

cash commission on the surface.” Gibb responded, “Thank you very much.”

Gibb did not respond to the May 23, 2005 email in writing, but he continued

working towards closing a deal with the GLO.




                                           7
      On June 15, 2005, the GLO, on behalf of the Texas Permanent School

Fund, sent Gibb a nonbinding letter of intent to purchase 1,983 acres of Rock

Creek Ranch for $9,500 per acre. Crestview Farm counteroffered to sell the land

for $10,600 per acre, or $21,019,800, which the GLO accepted by July 9, 2005.6

      By August 24, 2005, Crestview Farm and the GLO had signed a final

contract, and as of late August 2005, the contract was in the title company. One

provision stated, “Seller [Crestview Farm] has informed Buyer that, by separate

agreement, Seller is liable for a commission in respect of this transaction to [Gibb

and Roca Beda].” Another provision prohibited the GLO from paying more for

the land than its fair market value as determined by an appraisal. Thus, if the

property failed to appraise, the GLO could terminate the contract or the parties

could agree to lower the price.

      By August 29, 2005, “a lot of agreements . . . [had] floated across [Gibb’s]

desk,” so he sent Eichberg a fax that asked him to “review our current

[brokerage] agreement,” to clean it up, to date and sign it, and to add a 3% back-

in working interest.   The attachment contained a version of the May 3, 2005

brokerage agreement that Gibb had altered by requesting a $500,000 minimum

commission.     Gibb did not hear back from Meeker or Eichberg, so on


      6
       Therefore, excluding costs, the difference between the price that
Crestview Farm agreed to pay MTV to purchase Rock Creek Ranch’s surface
($20,097,000) and the price that the GLO agreed to pay Crestview Farm for
1,983 acres of Rock Creek Ranch’s surface ($21,019,800) was $922,800, more
than the $500,000 minimum commission that Gibb had requested.

                                         8
September 15, 2005, Gibb emailed Meeker and again asked him to “restate our

brokerage agreement to incorporate all of our agreements regarding commission

into one document.” Gibb again mentioned the 3% back-in working interest.

      Meeker responded to Gibb’s request a week later, on September 22, 2005,

by emailing him a brokerage agreement that set Gibb’s commission at 80% of

the difference between Rock Creek Ranch’s purchase price and its sales price.

The agreement did not contain a provision for a 3% back-in working interest, but

it stated, “There is a separate agreement between Crestview and Gibb . . .

regarding the mineral rights of the Property.” Gibb did not sign the agreement

because according to him, “[i]t didn’t follow the first agreements or any of the

things we talked about.”

      On October 3, 2015, Gibb sent Meeker a fax once again asking him to

“restate current in place commission agreements” and to “submit a[n] oil & gas

commission agreement as per your email.” Meeker called Gibb and told him that

“there was not a three percent back-in available and it looked like . . . the cash

commission would be enough to satisfy [Gibb’s] minimum desires, the 500,000.”

Meanwhile, Gibb and Transwestern executed a written memorandum of

understanding that Gibb would pay Transwestern 50% of the commission he

received for brokering the sale of Rock Creek Ranch to the GLO.

      By October 20, 2005, the property had appraised for more than the sales

price, but the parties still did not have a final written brokerage agreement in

place. On October 28, 2005, Gibb emailed Eichberg a signed copy of the May 3,

                                        9
2005 brokerage agreement that did not contain the interlineations that Gibb had

made when the agreement was originally circulated back in May, nor did it

contain a provision for a 3% back-in working interest. On November 7, 2005,

Gibb’s attorney sent Meeker a letter stating that it was Gibb’s understanding that

upon the closing of the sale of Rock Creek Ranch, he would receive a

commission equal to (1) 80% of the difference between the price that the GLO

paid Crestview Farm and the price that Crestview Farm paid MTV and (2) a 3%

back-in working interest on a well-by-well basis on the acreage that

Conglomerate leased under Rock Creek Ranch. Meeker asked his attorney to

try to work out a compromise with Gibb.

      On November 17, 2005, Crestview Farm, Gibb, and Roca Beda signed an

agreement that Gibb and Roca Beda would be paid a commission in the amount

of $862,900, with 80% paid to Gibb and 20% paid to Roca Beda. However, the

agreement expressly reserved the issue of the 3% back-in working interest. That

same day, MTV closed on its sale of Rock Creek Ranch’s surface to Crestview

Farm, and the next day, Crestview Farm closed on its sale of 1,983 acres of

Rock Creek Ranch to the GLO. Gibb received a cash commission in the amount

of $690,305.74, which he split 50/50 with Transwestern.

      B.    Oil & Gas Activity

      In March 2005, while Meeker was looking for a buyer for Rock Creek

Ranch, Conglomerate and Chesapeake Exploration Limited Partnership entered

into an Exploration and Development Agreement (EDA) whereby Conglomerate

                                       10
agreed to offer Chesapeake the exclusive option to purchase all oil and gas

interests that Conglomerate, or one of its affiliates, acquired in the Barnett Shale.

Chesapeake’s election under the EDA was triggered only if Conglomerate

acquired at least 75% of a particular interest. In addition to paying Conglomerate

the acquisition costs plus $100/acre, if Chesapeake elected to acquire an

interest, it agreed to convey Conglomerate a 15% carried working interest and

the right to purchase a 15% look-back interest in each well drilled, that is, a total

30% mineral leasehold interest.

      As contemplated by Crestview Farm’s Purchase and Sale Agreement with

MTV, on March 28, 2006, Crestview Resources leased MTV’s 50% mineral

interest under Rock Creek Ranch.         Shortly thereafter, Crestview Resources

purchased Carrizo’s leases of the remaining 50% of the minerals under Rock

Creek Ranch. Crestview Resources subsequently assigned all of the leases to

Chesapeake, and on March 1, 2007, Chesapeake assigned Conglomerate a

15% carried     working interest     in minerals    under    Rock Creek      Ranch.

Conglomerate also exercised its right under the EDA to acquire an additional

15% look-back interest in a number of wells. In July 2008, Conglomerate sold its

mineral interests under the EDA, including those under Rock Creek Ranch, to

Chesapeake.

      C.     Litigation

      Gibb sued Appellants in May 2009 for breach of contract. He alleged in his

fifth amended original petition that as part of his commission for brokering the

                                         11
sale of Rock Creek Ranch to the GLO, a valid and enforceable contract existed

whereby Conglomerate agreed to assign him a 3% back-in working interest on a

well-by-well basis if (i) he sold Rock Creek Ranch to the GLO and

(ii) Conglomerate leased the minerals under the tract, as set out in the May 23,

2005 email from Meeker to Gibb. Gibb averred that Conglomerate had breached

the agreement because although both conditions had been met, Conglomerate

had failed to assign him a 3% back-in working interest (or to remit the value of

the interest to him).     Gibb also alleged claims for fraud, statutory fraud,

intentional interference with contract, and commingling, among others.

      At trial, the parties disputed not only whether there was an agreement to

assign Gibb a 3% back-in working interest, but also the meaning of a 3% back-in

working interest on a well-by-well basis, the percentage of minerals under Rock

Creek Ranch that were subject to a 3% back-in working interest, the type of

working interest that Gibb was seeking, and the amount of damages resulting

from Appellants’ alleged breach.7 The trial court granted Appellants a directed

verdict on Gibb’s tort claims but let the jury resolve the contract dispute. The jury

found that Gibb and Conglomerate had reached an agreement on a back-in

working interest, that Conglomerate had failed to comply with the agreement, and

that the breach had occurred on March 1, 2007.            The jury awarded Gibb




      7
      The parties’ damages figures ranged from as low as $8,025 to as high as
$2.9 million, depending on the model used.

                                         12
damages in the amount of $1,833,599.38 and attorneys’ fees in the amount of

$1,743,363.26 for representation in the trial court and on appeal.

              III. AGREEMENT FOR 3% BACK-IN WORKING INTEREST

      Appellants argue in their first issue that the evidence is legally insufficient

to support the jury’s answer to question number one that an agreement existed

between Gibb and Conglomerate to assign Gibb a 3% back-in working interest

on a well-by-well basis on the acreage that Conglomerate leased under Rock

Creek Ranch.      Relying on well-established contract-formation law that a

counteroffer operates as a rejection of the original offer, Appellants contend that

instead of accepting the May 23, 2005 offer for a back-in working interest, Gibb

rejected it by repeatedly insisting on a $500,000 guaranteed minimum

commission—the very same thing that Meeker had repeatedly refused to accept.

According to Appellants,

             Simply put, Gibb would not agree to a brokerage agreement
      that did not have a $500,000 guaranteed minimum commission
      because of his fear that the sale would fall through or that the sale
      price would be reduced. On the other hand, for the same reason,
      Crestview Farm would not agree to any guaranteed commission.
      There was simply no meeting of the minds [regarding the 3% back-in
      working interest] because all offers and counter offers had been
      rejected.

Gibb responds that legally sufficient evidence supports the jury’s answer to

question number one because Gibb accepted the May 23, 2005 email both

verbally and by performance and because Meeker admitted that an agreement

existed.


                                        13
      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a

mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and

“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In

determining whether there is legally sufficient evidence to support the finding

under review, we must consider evidence favorable to the finding if a reasonable

factfinder could and disregard evidence contrary to the finding unless a

reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228

S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827

(Tex. 2005).

      A valid contract is one of the essential elements of a breach-of-contract

claim. See Rice v. Metro. Life Ins. Co., 324 S.W.3d 660, 666 (Tex. App.—Fort

Worth 2010, no pet.).      Parties form a binding contract when the following

elements are present: (1) an offer, (2) an acceptance in strict compliance with

the terms of the offer, (3) a meeting of the minds, (4) each party’s consent to the

terms, and (5) execution and delivery of the contract with the intent that it be

mutual and binding. Id. at 670. An acceptance must be clear and definite and

may not change or qualify the material terms of the offer. Amedisys, Inc. v.

                                        14
Kingwood Home Health Care, LLC, 437 S.W.3d 507, 513‒14 (Tex. 2014);

Coleman v. Reich, 417 S.W.3d 488, 491 (Tex. App.—Houston [14th Dist.] 2013,

no pet.). Stated otherwise, an acceptance must be identical with the offer to

make a binding contract. Schriver v. Tex. Dep’t of Transp., 293 S.W.3d 846, 851

(Tex. App.—Fort Worth 2009, no pet.). A purported acceptance that changes or

qualifies an offer’s material terms constitutes a rejection and counteroffer rather

than an acceptance. Parker Drilling Co. v. Romfor Supply Co., 316 S.W.3d 68,

74 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). Whether the parties

intended to enter into a binding agreement is often a question of fact. Foreca,

S.A. v. GRD Dev. Co., 758 S.W.2d 744, 746 (Tex. 1988).

      The May 23, 2005 email constituted one offer with two material terms—a

cash commission in the first full paragraph and a back-in working-interest

commission in the second full paragraph. Meeker acknowledged at trial that in

the first full paragraph, he was “reasserting” his offer of a cash commission for

80% of the difference between the purchase price and sale price of Rock Creek

Ranch. And regarding the language that Crestview Farm would not “bring any

money to a closing table to pay brokerage fees” and that “[a]ll costs of the sale

must be borne by the transaction and payable out of funds at the closing brought

by a buyer,” Gibb acknowledged at trial that he understood this to mean that

Meeker would not guarantee a minimum commission, something that Gibb had

expressly sought several weeks earlier when he made the interlineations to the

May 3, 2005 proposed brokerage agreement. The second full paragraph set out

                                        15
the term for a 3% back-in working interest on a well-by-well basis on the acreage

that Conglomerate leased under Rock Creek Ranch. Therefore, for a valid and

binding agreement to exist between Gibb and Conglomerate for a 3% back-in

working interest, Gibb must have accepted the May 23, 2005 email offer without

changing or qualifying either of its material terms. See Amedisys, 437 S.W.3d at

513‒14. He did not do so.

      Meeker testified that there was no agreement reached with Gibb on a

back-in working interest because Gibb “would always counter saying he wanted

and needed a $500,000 minimum on his commission.”           Specifically, Meeker

testified that after sending Gibb the May 23, 2005 email, Gibb “came right back”

and said that he wanted a minimum commission. Meeker thought that the issue

had been resolved once Crestview Farm and the GLO reached an agreement for

the sale of Rock Creek Ranch on July 9, 2005—because 80% of the difference

between the price to purchase the land and the price to sell it was more than the

$500,000 that Gibb had demanded—but after the final contract arrived in late

August—and contained several contingencies to closing, including that the

property appraise for at least the sale price—Gibb called Meeker the very next

day and “started demanding a half million dollar minimum again,” as reflected in

Gibb’s August 29, 2005 fax to Eichberg.          After Meeker sent Gibb the

September 22, 2005 email offer, Gibb “countered it by requesting a minimum

commission again.” Even as late as early October, Gibb was still requesting a



                                       16
minimum commission, which apparently led to a heated telephone discussion

between Gibb and Meeker. According to Meeker,

      I told Mr. Gibb emphatically that I will not nor will I ever agree to a
      minimum commission, that I’m happy to pay him 80 percent of the
      difference, that the three percent back-in was offered up as a
      compromise and a bridge that he was trying to do the $500,000
      minimum.

Thus, according to Meeker, Gibb “continued time and again every month all the

way through the end of October asking for a $500,000 minimum.”

      Gibb’s relevant testimony was mostly no different. He admitted that he

had asked for a minimum commission in the days after receiving the May 23,

2005 email offer, and even after then. Gibb testified,

            A.     I was going to ask for it for quite a while, yes.

             Q.    You continued to ask for it in the days following
      May 23rd, 2005, through at least the time of the State’s letter of
      intent in June, correct?

            A.     I think even later than that.

           Q.     So continually you refused to agree to the first part of
      Mr. Meeker’s offer?

            A.     That was Mr. Meeker’s terms.

              Q.    It was. True. And you continually refused to agree to
      the first one?

           A.      I’m still looking for a brokerage fee. I need a base of
      500,000.

                   ....

            Q.     You still needed your base on May 23rd, 2005?


                                         17
             A.    Yes, sir.

             Q.    You still needed your base in June of 2005?

             A.    Yes, sir.

             Q.    You still needed your base in July of 2005?

             A.    Yes, sir.

             Q.    You still needed your base in August of 2005?

             A.    Yes, sir.

             Q.    You still needed your base in September of 2005?

             A.    Yes, sir.

             Q.    And you continued to request it, correct?

             A.    Yes, sir.

Gibb confirmed that he continued working on the deal even though he did not

“want to accede to a contract that didn’t have a minimum and [Conglomerate

was] unwilling to accede to a contract that did.”

      Gibb argues that the evidence does not conclusively establish that he

rejected the May 23, 2005 email offer by counteroffering for a minimum

commission because the “later requests” that he made pertained to buyers other

than the GLO. Gibb directs us to his testimony that after receiving the May 23,

2005 email, he “was working on the GLO deal knowing that there was no

minimum commission being paid on that.” He testified,

             . . . In my mind, I was moving a little further ahead in trying to
      see, in my mind, if the State was going to close this or not. I still was
      trying to get a minimum commission to cover me in case Hillwood

                                         18
      would be coming in right behind this and pick it up. I would like to
      have a base on that is what I was meaning. [Emphasis added.]

      We emphasized parts of Gibb’s testimony for a reason.             It is well

established that in determining whether parties reached a meeting of the minds,

objective manifestations of intent to be bound are relevant but unexpressed

subjective intentions are not. Harrison v. Williams Dental Grp., P.C., 140 S.W.3d

912, 916 (Tex. App.—Dallas 2004, no pet.). Indeed, contract-formation cases

commonly recite that the determination of a meeting of the minds, and thus offer

and acceptance, is based on the objective standard of what the parties said and

did and not on their subjective state of mind. See, e.g., Baroid Equip., Inc. v.

Odeco Drilling, Inc., 184 S.W.3d 1, 17 (Tex. App.—Houston [1st Dist.] 2005,

pets. denied). Gibb’s testimony about what he was thinking when he made later

requests for a minimum $500,000 commission is therefore irrelevant; Meeker

could not have known what was going on in Gibb’s head when he requested a

minimum commission.       Gibb contends that the letter from his attorney on

November 7, 2005, and the final agreement for a cash commission on

November 17, 2005, are “[c]onsistent with [his] position that he only continued to

request a minimum commission for buyers other than the GLO” because neither

document mentioned a minimum commission. However, the November 2005

letter and agreement are no objective bases upon which Meeker could have

concluded that Gibb sought a minimum commission for buyers other than the

GLO because, simply enough, they were not part of the circumstances


                                       19
constituting what Gibb said and did when he requested the minimum

commission. See id. Moreover, there was no reason to mention a minimum

commission in either document because by November 7, 2005, the property had

appraised for more than the sales price, and the final agreement reflected exactly

that—the parties’ final agreement, not some term that may or may not have been

involved in the negotiations leading up to the agreement.

      Gibb argues alternatively that the evidence does not conclusively establish

that he rejected the May 23, 2005 email offer because he specifically testified

that he neither countered nor rejected Meeker’s May 23, 2005 email.           The

testimony went like this:

             Q.    Okay. Did you . . . counter any of this?

             A.    No, sir.

                   ....

             Q.    Okay. Did you reject it?

             A.    No, sir.

We absolutely agree with Appellants that this testimony is conclusory.        See

Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex.

2004) (reasoning that bare conclusions, even if unobjected to, cannot constitute

probative evidence); see also Natural Gas Pipeline Co. of Am. v. Justiss, 397

S.W.3d 150, 156 (Tex. 2012) (stating that Coastal’s holding is not limited to

expert testimony). Therefore, it is no evidence.



                                        20
      Gibb argues that there is legally sufficient evidence of an agreement for a

3% back-in     working interest    based     on certain    objective actions   and

communications of the parties, including (i) that Gibb accepted the May 23, 2005

email offer when he called Meeker on the telephone, questioned him about a 3%

back-in working interest, and told him, “Thank you very much”; (ii) that Gibb

accepted the May 23, 2005 email offer by performance, i.e., by securing the sale

of Rock Creek Ranch to the GLO; and (iii) that Gibb admitted the existence of an

agreement in his September 22, 2005 brokerage-agreement offer. Two contract-

formation rules foreclose all three of Gibb’s arguments.

      As we have already explained, an acceptance must be identical with the

offer to make a binding contract. Schriver, 293 S.W.3d at 851. In other words,

      [F]or an offer and an acceptance to constitute a contract, the
      acceptance must meet and correspond with the offer in every
      respect, neither falling within nor going beyond the terms proposed,
      but exactly meeting (those terms) at all points and closing with them
      just as they stand.

Uniroyal, Inc. v. Chambers Gasket & Mfg. Co., 380 N.E.2d 571, 575 (Ind. Ct.

App. 1978). Therefore, to the extent that Gibb purported to accept the 3% back-

in working interest during his phone call with Meeker, the partial acceptance was

legally ineffective because the evidence conclusively demonstrates that Gibb




                                        21
rejected Meeker’s offer for a cash commission, the other material term contained

in the May 23, 2005 email offer.8

      As for Gibb’s acceptance-by-performance and admission arguments, a

party cannot accept an offer that has been withdrawn or that has already been

rejected. See, e.g., Legal Sec. Life Ins. Co. v. Ward, 373 S.W.2d 693, 698 (Tex.

Civ. App.—Austin 1963, no writ); see also Crews v. Sullivan, 113 S.E. 865, 867

(Va. 1922) (“The other party, having once rejected the offer, cannot afterwards

revive it by tendering an acceptance of it.”). Thus, Gibb could not accept by

performance an offer that he had previously rejected by making a counteroffer for


      8
       Gibb testified,

            Q.    . . . But we established this morning that both terms
      were not agreed to back in May at a minimum, correct?

               A.   Yes, sir.

               Q.   Because you would not agree to Mr. Meeker’s first term,
      right?

               A.   Yes, sir.

Meeker testified,

              Q.    Now, after you sent Exhibit 60 [the May 23, 2005 email
      offer], did the matter of a minimum commission drop?

               A.   No.

               Q.   Why do you say that?

            A.     Because he came right back and said, Well, I’ll take
      both. I want everything. I want a minimum commission and I want a
      mineral interest.

                                        22
a minimum cash commission, nor could Meeker’s purported “admission” in the

September 22, 2005 email that a separate agreement existed for a mineral

interest have any legal relevance in light of Gibb’s prior rejection of the May 23,

2005 email offer.9

      Gibb asserts three different arguments in his motion for rehearing and

motion for en banc reconsideration, but they each ultimately have the same

goal—eliminating the legal effect of, or at least diverting attention away from, the

conclusive evidence involving the material term for a cash commission.

Specifically, Gibb argues that we misapply the legal-sufficiency standard of

review because we rely on testimony in opposition to the verdict—Meeker’s

version of events—rather than on testimony in support of the verdict—Gibb’s

version of events. The standard of review requires that we disregard evidence

contrary to the challenged finding unless a reasonable factfinder could not. See

City of Keller, 168 S.W.3d at 827.      Indeed, in City of Keller, Justice Brister

identified and discussed several categories of contrary evidence that must be

considered in a legal sufficiency review. Id. at 810‒18. One of those categories

is conclusive evidence. Id. at 814‒17. “When evidence contrary to a verdict is

conclusive, it cannot be disregarded.” Id. at 817. As we explained above, the

evidence conclusively demonstrates that Gibb rejected the portion of the May 23,

2005 email offer for a cash commission.       The legal effect of this conclusive

      9
      Gibb agreed at trial—and the other evidence showed—that the May 23,
2005 email was the only offer for a 3% back-in working interest.

                                        23
evidence is that there could not have been an agreement for a 3% back-in

working interest as a matter of law because Gibb did not accept both of the

May 23, 2005 email offer’s material terms.       See Amedisys, 437 S.W.3d at

513‒14. Meeker’s testimony is therefore precisely the type of contrary evidence

that we cannot disregard in performing our legal sufficiency review.10

      Gibb also argues on rehearing that we should not consider evidence that

Gibb rejected Meeker’s offer for a cash commission because the jury was not

asked about a minimum commission—the first material term of the May 23, 2005

email—but only whether Gibb and Conglomerate had reached an agreement for

a 3% back-in working interest—the second material term contained in the

May 23, 2005 email.11       Jury question number one does not foreclose our

consideration of whether the parties agreed to a minimum commission because it

expressly instructed the jury on the law directly pertinent to those specific and

relevant facts. It stated in relevant part,




      10
         Gibb argues that we fail to credit all of the evidence supporting the
verdict, but in light of the preclusive effect of the conclusive contrary evidence,
doing so would not result in a different outcome.
      11
        Jury question number one asked,

      Did Plaintiff Gibb and Defendant Conglomerate Gas agree that if
      Gibb successfully sold the surface estate of Rock Creek Ranch to
      the Texas General Land Fund and Conglomerate Gas leased the
      minerals under Rock Creek Ranch, Conglomerate Gas would assign
      Gibb a 3% back in working interest on a well by well basis on the
      acreage leased by Conglomerate Gas?

                                          24
            A purported acceptance that changes or qualifies an offer’s
      material terms constitutes a rejection and counteroffer rather than an
      acceptance. Any attempt to change an offer operates as a rejection
      and counteroffer.

           Once an offer has been rejected, the offeree no longer has the
      power to accept it and cannot revive the offer by tendering
      acceptance by performance.

To divorce evidence regarding an agreement for a minimum commission from a

legal sufficiency analysis considering whether the parties reached an agreement

for a 3% back-in working interest would have the dual effect of erroneously

(i) disregarding the trial court’s binding instructions and (ii) ignoring City of

Keller’s clear pronouncements involving contrary conclusive evidence.

      Gibb further argues that we inappropriately apply bilateral contract law to a

unilateral contract case.   He contends that the second material term of the

May 23, 2005 email—in which Meeker offered Gibb a 3% back-in working

interest if Gibb sold the Rock Creek Ranch to the GLO and Conglomerate leased

the minerals thereunder—created a unilateral contract, that the charge instructed

the jury that it could consider evidence of Gibb’s acceptance of the mineral-

interest offer either by return promise or by performance, and that Gibb accepted

the offer for a mineral interest by performance.12 Although the charge certainly

instructed the jury that “acceptance of an offer may be shown if a person

performs under the terms of the agreement, if any,” it also stated that for that
      12
       “A unilateral contract is created by the promisor promising a benefit if the
promisee performs. The contract becomes enforceable when the promisee
performs.” Plano Surgery Ctr. v. New You Weight Mgmt. Ctr., 265 S.W.3d 496,
503 (Tex. App.—Dallas 2008, no pet.).

                                        25
provision to apply, the person must not have “previously rejected [the offer].” As

we explained above, Gibb swiftly rejected the first material term contained in the

May 23, 2005 email offer establishing a cash commission. By doing so, and

consistent with the charge’s instruction, Gibb eliminated his ability to accept by

performance the other material term contained in the very same no-longer-

existing offer. See, e.g., Lamb v. Decatur Fed. Sav. & Loan Ass’n, 411 S.E.2d

527, 529‒30 (Ga. Ct. App. 1991) (“[A]s the counteroffer acted to reject

immediately and nullify the original offer, any subsequent performance on the

part of appellant in quitting the premises could not unilaterally breathe life into the

then non-existing original offer . . . .”) (citations omitted).

       Finally, directing us to the Restatement (Second) of Contracts, Gibb

argues that his acceptance by performance of the offer for a 3% back-in working

interest did not depend upon a minimum commission.                 See Restatement

(Second) of Contracts § 61 (1981). Along those same lines, Gibb also contends

that even if his request for a minimum commission constituted a counteroffer, it

did not preclude him from accepting the offer for a mineral interest by

performance.      These arguments are unpersuasive because Gibb could not

accept by performance a term contained in an offer that he had previously

rejected.

       The evidence is legally insufficient to support the jury’s answer to question

number one that an agreement existed between Gibb and Conglomerate to

assign Gibb a 3% back-in working interest on a well-by-well basis on the acreage

                                            26
that Conglomerate leased under Rock Creek Ranch.           See Cent. Ready Mix

Concrete Co., 228 S.W.3d at 651; City of Keller, 168 S.W.3d at 807; Uniroyal

Goodrich Tire Co., 977 S.W.2d at 334. Accordingly, we sustain Appellants’ first

issue and do not reach their remaining issues. See Tex. R. App. P. 47.1.

                     IV. GIBB’S CONDITIONAL CROSS-POINTS

      In four conditional cross-points, Gibb argues that the trial court erred by

directing a verdict against him on his fraud, intentional interference, and

commingling claims and by submitting jury question number four, which asked

the jury to determine the date that Appellants breached the contract.

      A.    Directed Verdict

      A directed verdict is proper only under limited circumstances: (1) when the

evidence is insufficient to raise a material fact issue, or (2) when the evidence

conclusively establishes the right of the movant to judgment or negates the right

of the opponent. See Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29

S.W.3d 74, 77 (Tex. 2000); Farlow v. Harris Methodist Fort Worth Hosp., 284

S.W.3d 903, 919 (Tex. App.—Fort Worth 2009, pet. denied). In reviewing a

directed verdict, we follow the standards for assessing legal sufficiency of the

evidence. See City of Keller, 168 S.W.3d at 823. We review the evidence in the

light most favorable to the person suffering the adverse judgment, and we must

credit favorable evidence if reasonable jurors could and disregard contrary

evidence unless reasonable jurors could not. Id. at 827; see also Exxon Corp. v.

Emerald Oil & Gas Co., 348 S.W.3d 194, 215 (Tex. 2011).

                                       27
            1.      Common-Law Fraud and Statutory Fraud

      Reliance is a necessary element of common-law fraud. Grant Thornton

LLP v. Prospect High Income Fund, 314 S.W.3d 913, 923 (Tex. 2010).            To

prevail, a plaintiff must demonstrate that he justifiably relied upon a false and

material misrepresentation to his detriment. Johnson & Higgins of Tex., Inc. v.

Kenneco Energy, Inc., 962 S.W.2d 507, 524 (Tex. 1998).         The elements of

statutory fraud under the business and commerce code are essentially identical

to the elements of common-law fraud except that the statute does not require

proof of knowledge or recklessness as a prerequisite to recovering damages.

See Tex. Bus. & Com. Code Ann. § 27.01(a) (West 2015); Brush v. Reata Oil &

Gas Corp., 984 S.W.2d 720, 726 (Tex. App.—Waco 1998, pet. denied).

      Gibb argues that Meeker made a false representation (1) in his May 1,

2005 letter when he stated that he and his brother owned an oil and gas

company that had the lease commitment on the minerals owned by MTV and

(2) in his May 23, 2005 email, in which Meeker promised Gibb a 3% back-in

working interest.     Gibb states that in those documents, Meeker and

Conglomerate represented that Conglomerate had the right to lease the minerals

and would be the leasing entity, but because the Purchase and Sale Agreement

between Crestview Farm and MTV only allowed Crestview Resources or Antero

Resources to lease the minerals, “Meeker could not utilize Conglomerate as the

lessee, and what he promised Gibb in the May 23 email was impossible.”



                                       28
      We disagree with Gibb that Meeker’s promise for a 3% back-in working

interest in the May 23, 2005 email was “impossible” because Conglomerate

acquired a 30% lease interest in the Rock Creek Ranch minerals. But even more

than that, there is no evidence of detrimental reliance by Gibb. Gibb argues that

he detrimentally relied on the May 23, 2005 representation because he “gave up

half of his cash commission and believed that he would receive a working

interest instead.” However, Gibb confirmed at trial that in deciding to represent

the property as a broker, he did not rely on Meeker’s representation in the May 1,

2005 letter about leasing MTV’s minerals. Indeed, at that point, Meeker had not

yet made the May 23, 2005 offer for a working interest. As for the May 23, 2005

representation for a 3% back-in working interest, Gibb may very well have

“believed that he would receive a working interest,” but when he did not, it was

not because Meeker could not utilize Conglomerate as the lessee of MTV’s

minerals—the primary fact underlying Gibb’s fraud claim, which Appellants also

contest—but because Meeker disagreed that the parties had reached an

agreement for a 3% back-in working interest. See, e.g., Gray v. Waste Res.,

Inc., 222 S.W.3d 522, 525 (Tex. App.—Houston [14th Dist.] 2007, no pet.)

(reasoning that “Gray, as a plaintiff, needed to show he failed to purchase his pro

rata shares of WRI under the equity recapitalization plan because of his reliance

on a misrepresentation by WRI” but that the evidence showed that “Gray

attempted to borrow money in order to purchase the shares, but was unable to

secure financing”). Along those same causal-connection lines, Gibb did not lose

                                        29
half of his commission because he relied on Meeker’s alleged “impossible”

promise for a 3% back-in working interest; he “gave up half of his cash

commission” because he agreed to split it with Transwestern, who brought the

GLO to the table.     In fact, Gibb testified that splitting his commission was

something that he welcomed,

           Q.       Now, the only potential purchaser . . . that you had
      brought [of] the three who could close within a year was the State?

            A.     Was the State, correct.

             Q.      And you testified yesterday, I believe, that somehow, as
      I recall, it harmed you to have to sell the property to the State rather
      than another potential purchaser because you had to split your
      commission with the folks at Transwestern, right?

            A.     I didn’t use the word “harm.”

            Q.      Well, . . . was it a negative fact for you? Was it
      somehow a problem for you, that selling to the State would require
      you to split your commission with the folks at Transwestern?

            A.     It did not upset me or anything like that. I was happy to
      see the State have the cash to do it. I did not mind at all splitting, as
      I do most of the time, with a co-broker.

              Q.    And that’s my question. Selling to the State and having
      to split your commission was not at all unusual, was it?

            A.     Not really.

             Q.    In fact, at least 80 percent of the time you have to . . .
      split your commission with another broker?

            A.     Yes. And I welcome that.

      Gibb also alleged a claim for fraud by nondisclosure based on the same

allegations that Meeker failed to disclose to Gibb that only Crestview Resources

                                         30
or Antero Resources could lease MTV’s minerals. Fraud by nondisclosure is

simply a subcategory of fraud, because when a party has a duty to disclose, the

nondisclosure may be as misleading as a positive misrepresentation of facts.

Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 181 (Tex. 1997).

Gibb’s nondisclosure claim therefore fails for the same reason that his common

law and statutory fraud claims failed—there is no evidence raising a material fact

issue that Gibb relied to his detriment on Meeker’s purported misrepresentations

about Conglomerate’s right to lease MTV’s minerals. The trial court did not err

by directing a verdict in favor of Appellants on Gibb’s fraud claims, and we

overrule his first conditional cross-point.

             2.     Intentional Interference with an Existing Contract

       Gibb’s interference claim relied upon the same facts as his fraud claims.

He contends that Meeker intentionally interfered with the May 23, 2005 email

because when he drafted it—and identified Conglomerate as the leasing entity in

the second paragraph—he had full knowledge that only Crestview Resources or

Antero Resources could lease MTV’s minerals under Rock Creek Ranch

pursuant to the Purchase and Sale Agreement between Crestview Farm and

MTV.

       Gibb’s interference action required proof of the following: (1) the existence

of a contract subject to interference; (2) willful and intentional interference;

(3) interference that proximately caused damage; and (4) actual damage or loss.

See Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 456 (Tex. 1998). Regarding

                                          31
causation, Gibb argues that “Meeker’s interference was the proximate cause of

damages to Gibb because it allowed Meeker to take the position that the

conditions of the May 23 email did not occur, which was his justification for not

conveying Gibb his mineral interest.”      [Emphasis added.]     This reasoning is

inconsistent with the trial record, which even Gibb acknowledges on a different

page of his brief. In a footnote, Gibb states,

             During the course of the litigation, Meeker argued multiple
      times that Conglomerate could not have breached the May 23 email
      because one of its conditions did not occur: Conglomerate did not
      lease the minerals. However, Meeker ultimately changed his
      position for trial and admitted that if the parties agreed to the May 23
      email, then its conditions were met, and Gibb should have been
      assigned a mineral interest. [Emphasis added.] [record citations
      omitted]

Our assessment of the evidence is exactly the same.            Meeker justified not

assigning Gibb a back-in working interest because, in his opinion, no agreement

existed for a mineral interest, not because one of the conditions in the second full

paragraph of the May 23, 2005 email did not occur.           In fact, Meeker even

conceded that had there been a valid agreement to assign Gibb a 3% back-in

working interest, the assignment would have been due on March 1, 2007, when

Chesapeake assigned Conglomerate a 15% carried working interest in minerals

under Rock Creek Ranch. There is no evidence that Gibb’s alleged damages

were proximately caused by Meeker’s identifying Conglomerate as the leasing

entity in the May 23, 2005 email. Therefore, the trial court did not err by directing




                                         32
a verdict in favor of Appellants on Gibb’s claim for intentional interference with an

existing contract.13

             3.        Commingling

      The doctrine of commingling of goods attaches when the commingled

goods of different parties are so confused that the property of each cannot be

distinguished. Humble Oil & Refining Co. v. West, 508 S.W.2d 812, 818 (Tex.

1974). Gibb pleaded a commingling claim “because Conglomerate sold virtually

all of its interests in the oil and gas wells to Chesapeake in a cash sale. [] The

sale included Conglomerate’s (and Gibb’s) interest under the EDA in the Rock

Creek Ranch minerals.” [Emphasis added.] However, Gibb had no interest in

any part of the mineral interests that Conglomerate ultimately sold to

Chesapeake in 2008 because no enforceable agreement for a 3% back-in

interest existed. The trial court therefore properly directed a verdict on Gibb’s

commingling claim. We overrule his third conditional cross-point.14



      13
         Gibb states in his brief that “Meeker orchestrated Crestview Resources
becoming the lessee instead of Conglomerate in an attempt to deny Gibb the
mineral interest he was promised under the May 23 email.” [Emphasis added.] If
this is an alternative theory of interference, then it is unpersuasive, and a directed
verdict was proper, because the evidence showed that Conglomerate had not
been formed at the time that Crestview Farm entered into the Purchase and Sale
Agreement with MTV and identified Crestview Resources as one of two potential
lessees of MTV’s minerals.
      14
          Gibb also argues that the trial court abused its discretion by admitting
Plaintiff’s Exhibit 243, which “was probative of [his] commingling theory,” but any
error was harmless because the trial court properly granted a directed verdict on
Gibb’s commingling claim.

                                         33
      B.    Jury Question Number Four

      Gibb argues that the trial court erred by submitting jury question number

four, the date that Appellants breached the contract.        Gibb conditions this

argument on a determination by this court that there was no or insufficient

evidence of damages as of March 1, 2007, the date the jury found that

Appellants had breached the May 23, 2005 email. We did not reach that issue

because we sustained Appellants’ first issue. Moreover, for that same reason,

any error in submitting the question was harmless. We overrule Gibb’s fourth

conditional cross-point.

                                 V. CONCLUSION

      Having overruled Gibb’s conditional cross-points, we affirm the trial court’s

judgment as to Gibb’s tort claims. Having sustained Appellants’ first issue, we

reverse the trial court’s judgment and render judgment that Gibb take nothing on

his breach-of-contract claim. See Tex. R. App. P. 43.2(c).




                                                  /s/ Bill Meier
                                                  BILL MEIER
                                                  JUSTICE

PANEL: WALKER and MEIER, JJ.; and CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment).

DELIVERED: October 15, 2015




                                        34
