                                                                                           ACCEPTED
                                                                                      01-14-00686-CV
                                                                            FIRST COURT OF APPEALS
                                                                                    HOUSTON, TEXAS
                                                                                 1/29/2015 2:49:19 PM
                                                                                  CHRISTOPHER PRINE
                                                                                               CLERK

                          CAUSE NO. 01-14-00686-CV

                                                                      FILED IN
                                                               1st COURT OF APPEALS
                                                                   HOUSTON, TEXAS
                                 In The                        1/29/2015 2:49:19 PM
                             Court of Appeals                  CHRISTOPHER A. PRINE
                                 For The                               Clerk
                             st
                            1 District of Texas
                ________________________________________

                              KAMISHA DAVIS
                                                         Appellant,

                                       v.

                   TEXAS FARM BUREAU INSURANCE
                                                  Appellees.
                ________________________________________

                 On Appeal from the 127th Judicial District Court
                             Harris County, Texas
                         Trial Court No. 2013-22651
                ________________________________________

                             Appellant’s Brief
                ________________________________________



                                                      Mestemaker, Straub & Zumwalt
                                                      David K. Mestemaker
                                                      dkm@msandz.com
                                                      SBN: 13974600
                                                      FBN: 14410
                                                      3100 Timmons Lane, Suite 455
                                                      Houston, Texas 77027
                                                      Telephone: (713) 626-8900
                                                      Facsimile: (713) 626-8910
                                                      Counsel for Appellant

Oral Argument Requested
                          Identity of Parties and Counsel

APPELLANT
David K. Mestemaker
dkm@msandz.com
Mestemaker, Straub & Zumwalt
3100 Timmons Lane, Suite 455
Houston, Texas 77027
Telephone: (713) 626-8900
Facsimile: (713) 626-8910

Appellant and Trial Counsel for KAMISHA DAVIS.

APPELLEES
Louis Layrisson III
louie.layrisson@bakerbotts.com
Baker Botts L.L.P.
One Shell Plaza
910 Louisiana St.
Houston, Texas 77002-4995
Telephone: (713) 229-1421
Facsimile: (713) 229-7721

Appellee and Trial Counsel for TEXAS FARM BUREAU INSURANCE




                                        -2-
                                                     Table of Contents

Identity of Parties and Counsel ............................................................................ 2

Index of Authorities ............................................................................................ 4-5

Statement of Case ................................................................................................... 5

Relevant Procedural Background ......................................................................... 6

Issues Presented ...................................................................................................... 6

Statement of Facts .................................................................................................. 7

Summary of Argument .......................................................................................... 7

Argument ............................................................................................................ ….8

Standard of Review ................................................................................................... 8

A fact issue and more than a mere scintilla of evidence exists
precluding summary judgment on Appellant’s breach of contract claim ................ 8

A fact issue and more than a mere scintilla of evidence exists
precluding summary judgment on Appellant’s breach of contract claim .............. 14

Conclusion ............................................................................................................. 17

Prayer .................................................................................................................... 19

Certificate of Service ............................................................................................ 20




                                                                  -3-
                              Index of Authorities

Cases

B&W Sup. V. Beckman,
305 S.W.3d 10 (Tex.App.-Houston [1st Dist.] 2009, pet. denied). ……………………….9

City of the Colony v. North Tex. Mun. Water Dist.,
       272 S.W.3d 699 (Tex.App.-Fort Worth 2009, pet. dism’d) ……………………..10

Collins v. Walker,
       341 S.W.3d 579 (Tex.App.-Houston [14th Dist.] 2011, no pet.) …………………15

David J. Sacks, P.C. v. Haden,
      266 S.W.3d 447 (Tex.2008). ……………………………………………………..10

DeClaire v. G&B McIntosh F.L.P.,
      260 S.W.3d 34 (Tex.App.-Houston [1st Dist.] 2008, no pet.) ……………10, 11, 14

DeSantis v. Wackenhut Corp.,
     732 S.W.2d 29(Tex.App.-Houston [14th Dist.] 1987) rev’d in part on other
     grounds, 793 S.W.2d 670 (Tex.1990). …………………………………………….9

English v. Fischer,
      600 S.W.2d 521 (Tex. 1983). …………………………………………………….16

Ferguson v. Building Materials Corp. of America, No.
      08-0589 (Tex. Jul. 3, 2009) ………………………………………………………..8

Kelly v. Rio Grande Computerland Grp.,
       128 S.W.3d 759 (Tex.App.-El Paso 2004, no pet.). ……………………………..15

Kennedy Ship & Repair, L.P. v. Pham,
     210 S.W.3d 11 (Tex.App.-Houston [14th Dist.] 2006, no pet.). …………………11

Meek v. Bishop Peterson & Sharp, P.C.,
      919 S.W.2d 805 (Tex.App.-Houston [14th Dist.] 1996, writ denied). ……………9

Municipal Admin. Servs. V. City of Beaumont,
      969 S.W.2d 31 (Tex.App.-Texarkana 1998, no pet.) …………………………….12

Nixon v. Mr. Prop. Mgmt. Co.,
      690 S.W.2d 546, 548–49 (Tex. 1985). …………………………………...14, 17, 19


                                      -4-
Valencia v. Garza,
      765 S.W.2d 893 (Tex. App.-San Antonio 1989, no writ). ……………………….12

Rules and Statutes

RESTATEMENT (SECOND) OF CONTRACTS § 41 (1981) comment b …………….12

TRCP 166a(c) .....…………………..……………………………………………………16

TRCP 166(a)(i) ..….……………………………………………………………………..16



STATEMENT OF THE CASE

Nature of the Case:        Appellant/Plaintiff Kamisha Davis filed suit on or about April
                           16, 2013 against Appellee/Defendant Texas Farm Bureau
                           Insurance seeking damages including, but not limited to,
                           payment of a previously accepted settlement offer and
                           interest, as well as attorney’s fees. (CR 4-8) More
                           specifically, Ms. Davis was injured in an accident caused by
                           Jeremy Thomas, Appellee/Defendant’s insured that occurred
                           on August 26, 2009. (CR 58) On June 10, 2011,
                           Appellee/Defendant offered Appellant/Plaintiff $12,000.00 to
                           settle the matter. Plaintiff/Appellant accepted the offer on
                           April 13, 2012. (CR 59) The offer made by
                           Appellee/Defendant did not have a designated time period,
                           nor did it have an expiration date. Appellee/Defendant never
                           revoked the offer.
                           ............................................................... ………………………


Trial Court:               The Honorable Al Bennett, 61st Judicial District Court, Harris

                           County, Texas



Trial Court’s Disposition: Final Judgment in favor of Defendant.




                                             -5-
                          Relevant Procedural Background

     Plaintiff filed her Original Petition and Request for Disclosure on April 16, 2013.

(CR 4-8) Appellee/Defendant Texas Farm Bureau Insurance filed their Original Answer

on or about July 25, 2013. (CR 16-19) Appellee/Defendant filed a Traditional and No-

Evidence Motions for Summary Judgment on or about April 15, 2014. (CR 20-49)

Appellant/Plaintiff timely filed a response to same on May 9, 2014. (CR 50-60) After a

hearing on Defendant’s Motions for Summary Judgment was held on May 23, 2014, an

Order was signed on June 6, 2014 in favor of Defendant. (CR 65) Plaintiff timely filed

her Motion for New Trial on July 3, 2014. (CR 66-92) Defendant filed their Response to

the Motion for New Trial on July 9, 2014. (CR 93-97) Plaintiff’s Motion for New Trial

was set for submission on July 14, 2014. (CR 92) The trial court denied Plaintiff’s

Motion for New Trial on August 11, 2014. (CR 98) Plaintiff filed her Notice of Appeal

on August 14, 2014. (CR 102-103)

ISSUES PRESENTED

   1. Did the trial court commit reversible error when it granted Defendant/Appellee’s

   motion for summary judgment?

         a. Claiming there was neither a material fact issue nor more than a mere

             scintilla of evidence that Appellee breached an agreement.

         b. Claiming there was neither a material fact issue nor more than a mere

             scintilla of evidence that Appellee is liable to Appellant under the theory of

             promissory estoppel.




                                           -6-
STATEMENT OF FACTS

To the Honorable Justices of the First Court of Appeals:

     Plaintiff was hit by a vehicle owned by Jeremy Thomas, Defendant’s insured. (CR

5) Defendant made an offer on June 10, 2011, in an attempt to settle the case, in the

amount of $12,000.00. (CR 58) Defendant did not limit the offer to a certain time frame

in which Plaintiff had to accept. (Id.) Additionally, Defendant did not state that the offer

would expire. (Id.) Moreover, Defendant never revoked the offer. The Defendant

believed the offer was still good and open for acceptance even after a Stowers demand

had been tendered. (CR 57)

      On April 13, 2012, Plaintiff accepted Defendant’s offer to settle the case for

$12,000.00. (CR 59) Then, Defendant denied the offer on April 20, 2012, claiming that

the offer had expired on the expiration of limitations of the underlying incident – not

because of any other rejection, expiration of the offer, or any other legal theory (such as

that which Appellee now claims that the offer ended by virtue of a Stowers demand). (CR

57) Plaintiff relied on the representations made by Defendant, which was an open ended

offer to settle her case for $12,000.00. (CR 59) Defendant never revoked the offer to

Plaintiff until after Plaintiff accepted the offer. (CR 57) Defendant has failed to make the

offer of settlement good; Plaintiff relied on Defendant’s promise to Plaintiff’s detriment.

                          SUMMARY OF THE ARGUMENT

       First, the trial court erred when it granted Appellee’s motion for summary

judgment as to Appellant’s breach of contract, as there are fact issues and more than a




                                            -7-
mere scintilla of evidence that there was an offer and an acceptance, the most basic

principles of contract law.

       Second, the trial court erred when it granted Appellee’s motion for summary

judgment as to Appellant’s promissory estoppel claims, as there are fact issues and more

than a mere scintilla of evidence that there was a promise, foreseeability of reliance by

the Appellee promisor, and substantial reliance on the promise to Appellant’s detriment.

       Accordingly, Appellant moves this Court to remand this case to the trial court for

a trial on the issues.

                                       ARGUMENT

Standard of Review

            A grant of summary judgment is reviewed de novo. Tex. Mun. Power Agency v.

Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007). Ferguson v. Building

Materials Corp. of America, No. 08-0589 (Tex. Jul. 3, 2009)(per curiam) (judicial

estoppel based on bankruptcy proceeding held inapplicable.)

A fact issue and more than a mere scintilla of evidence exists regarding whether or
not Appellee breached its contract with Appellant.

       1.       As to the breach of contract issue, the Court will see that the most basic

elements of breach of contract exist. There was a promise by Appellee (CR 58) to pay

Appellant $12,000.00 to extinguish the claims against Appellee’s insured. Furthermore,

there was an acceptance of that offer. (CR 59) Appellee’s explanation for not honoring

the offer of settlement is that a Stowers demand acted as a counter-offer and rejection of




                                            -8-
the $12,000.00 settlement and that Appellant’s acceptance of the offer was not made in a

reasonable period of time. (CR 63)

       2.     Whether a Defendant breached a contract is a question of law for the court.

DeSantis v. Wackenhut Corp., 732 S.W.2d 29, 34 (Tex. App.-Houston [14th Dist.] 1987)

rev’d in part on other grounds, 793 S.W.2d 670 (Tex.1990); See B&W Sup. V. Beckman,

305 S.W.3d 10, 16 (Tex. App.-Houston [1st Dist.] 2009, pet. denied). However, if there

is a dispute concerning the failure of a party to comply with the contract, the court

should submit the disputed fact question to the jury. Meek v. Bishop Peterson &

Sharp, P.C., 919 S.W.2d 805, 808 (Tex. App.-Houston [14th Dist.] 1996, writ denied).

       3.     Appellant believes a timeline of the relevant events will be beneficial for

the Court to understand the issues.

       August 26, 2009 – Motor Vehicle accident between Appellant and Appellee’s

insured. (CR 57, 58)

       June 10, 2011 – Offer was made by Appellee to settle the claims for $12,000.00

(CR 58)

       July 28, 2011 – Stowers Demand was tendered to Appellee by Appellant’s

previous counsel prior to lawsuit being filed. (CR 46)

       August 25, 2011 – Statute of limitations expires as to underlying claim. (CR 57,

58)

       April 13, 2012 – Offer of settlement accepted by Appellant’s counsel. (CR 59)

       April 20, 2012 – Letter sent by Appellee claiming offer expired on the expiration

of limitations. (CR 57)


                                            -9-
       4.      While normally a counteroffer (including a Stowers demand) could be

construed as a rejection of an offer, this Court will see that was not the intention of the

parties. As this Court well knows, to form a binding contract, the parties must have

mutual assent, or a “meeting of the minds,” on the essential terms of a contract. David J.

Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex.2008). Meeting of the minds refers to

the parties’ mutual understanding of an assent to the subject matter and essential terms of

the contract. City of the Colony v. North Tex. Mun. Water Dist., 272 S.W.3d 699, 720

(Tex. App.-Fort Worth 2009, pet. dism’d). In this case, the essential term of the contract

is the date the offer expired, if ever.

       5.      While Appellee has hinged its entire argument on the claim that the offer

was rejected when the Stowers demand was made, this Court will see that is not what the

parties’ conduct proves. Appellant reminds the Court that in determining whether the

parties had a meeting of the minds is an objective determination based on the parties’

statements and actions, not on their subjective state of mind. DeClaire v. G&B

McIntosh F.L.P., 260 S.W.3d 34, 44 (Tex. App.-Houston [1st Dist.] 2008, no pet.)

       6.      In this case, the Court can easily determine the Appellee did not take the

Stowers demand as a rejection of the $12,000.00 offer and to the extent it claims

Appellee did, Appellee’s offer was re-offered even after the Stowers demand was made

based on Appellee’s own statements. This is verified by the correspondence sent to

Appellant after she attempted to accept the offer and states the following:

               This will acknowledge receipt of your letter dated April 13,
               2012 on the above named client. Our offer expired on the two
               year anniversary from the date of accident 8-26-2009;


                                            -10-
              therefore, we are respectfully declining your client’s claim.
              (CR 57)

       7.     As the Court will see, the Appellee’s statements and actions (as discussed

in DeClaire) clearly and unequivocally show that the offer was open to acceptance,

though the Stowers demand had been made nine months earlier. In fact, Appellee’s sole

justification for denying the viability of the acceptance was not that the offer had been

previously rejected by virtue of the Stowers demand – but that limitations had expired.

More importantly, the correspondence specifically proves that the offer was open (thus

not viewed as rejected) by stating that the offer was still available to the end of the two

year statute: almost an entire month after the Stowers demand was made.

       8.     So, as much as Appellee claims the Stowers was a rejection of its

$12,000.00 offer, their statements and actions prove that either the Stowers demand was

not considered a rejection by the Appellee or to the extent it was, the offer was re-opened

and made to Appellant even after the Stowers was tendered.

       9.     It bears noting that the “expires at limitations” clause was never mentioned

to Appellant in writing or verbally.

       10.    Appellee’s secondary explanation for not making good on the offer of

settlement was that the acceptance of the offer was not made in a reasonable time. As the

Court will see, the law does not support this position.

       11.    Generally, time is not of the essence in a contract. Kennedy Ship & Repair,

L.P. v. Pham, 210 S.W.3d 11, 19 (Tex. App.-Houston [14th Dist.] 2006, no pet.). Any

intention to make time of the essence must be clear from the contract as a whole.



                                            -11-
Municipal Admin. Servs. V. City of Beaumont, 969 S.W.2d 31, 36 (Tex. App.-Texarkana

1998, no pet.)

       12.     As the Court will see, the offer to settle did not have an expiration date nor

did it state that “time is of the essence”. The letter in its entirety reads as follows:

                      This will acknowledge receipt of your letter dated June
               9, 2011, wherein you made a demand of $22,500.00 to settle
               your client’s claim.
                      After careful review and evaluation of the information
               you have submitted, we believe this claim has a value of
               $12,000.00.
                      Please inform us of your client’s response.
                      Sincerely, … (CR 58)

       13.     As the Court can see, there is no expiration date nor is there a mention that

the offer will expire on the expiration of limitations as was claimed later. There is not

even a request for Appellant to let Appellee “know as soon as possible”. While an offer

may expire after a reasonable time, what is reasonable time is a fact question, depending

on all the circumstances existing when the offer and attempted acceptance were made.

Some factors to be considered are: the nature of the proposed contract; the purposes of

the parties; and the course of dealing between them. See Valencia v. Garza, 765 S.W.2d

893, 897 citing RESTATEMENT (SECOND) OF CONTRACTS § 41 (1981) comment

b. So, to the extent Movant argues the offer expired, this issue is a question of fact and

not summary judgment fodder.

       14.     Finally, Appellee’s arguments regarding the expiration of the offer conflict

with one another and the disingenuous nature of Appellee’s claims become clear. As was

stated initially by Appellee’s representative, the offer was revoked by virtue of an



                                              -12-
expiration of limitations. There was no mention of the Stowers demand acting as a

rejection and in fact, it is clear the acceptance would have been accepted despite the

Stowers demand, so long as it was made prior to the expiration of limitations.

       15.    Later, once legal counsel became involved, a tactical decision was made by

Appellee to claim that the offer expired by virtue of the Stowers demand acting as a

rejection. As the Court can see by the correspondence cited supra, this was not the

Appellee’s real position or belief, but an attempt to recast the facts. Furthermore,

Appellee now conveniently argues that to the extent it was an acceptance, nine months is

too long of a time and thus the acceptance was not made in a reasonable amount of time.

       16.    This “reasonable amount of time” argument also fails with only the

slightest scrutiny. As is shown by Appellee’s correspondence, its offer to settle remained

open until expirations expired. Under this belief, if an offer to settle was made only one

month after an accident occurred, the offer would be open for twenty three months –

according to Appellee’s correspondence. In that light, nine months (as in the instant case)

– less than half of that available of an offer made one month after a collision, is not

unreasonable at all.

       17.    As the Court can see, the inconsistencies of Appellee’s arguments are

glaring. What becomes abundantly clear is that the only intent by Appellee to withdraw

the offer was not by virtue of the Stowers demand or not to leave it open for only a

reasonable time of something less than nine months. What the Appellee intended to do

was to make an offer that expired upon the expiration of limitations. Unfortunately, for

Appellee and its settlement offer, it failed to state there was a deadline and it failed to


                                           -13-
even state generically that “time was of the essence”. Appellee’s counsel’s argument after

the fact cannot withstand the slightest scrutiny and the fact Appellee is attempting an

about-face now is telling as to what their intent was then.

       18.    Appellant reminds the Court that in determining whether the parties had a

meeting of the minds regarding the terms of an agreement is an objective determination

based on the parties’ statements and actions, not on their subjective state of mind.

DeClaire v. G&B McIntosh F.L.P., 260 S.W.3d 34, 44 (Tex. App.-Houston [1st Dist.]

2008, no pet.) Nor is it based on their attorney’s tactical decisions in an effort to avoid

liability after the fact. Clearly, every reasonable inference was not indulged in favor of

the non-movant as Texas caselaw has long held. See, e.g., Nixon v. Mr. Prop. Mgmt. Co.,

690 S.W.2d 546, 548–49 (Tex. 1985).

A fact issue and more than a mere scintilla of evidence exists regarding whether or

not Appellee is liable under the theory of promissory estoppel.

       19.    Though it is clear that more than a mere scintilla of evidence and a fact

issue preclude summary judgment on Appellant’s breach of contract claims, dismissal of

Appellant’s claims based on promissory estoppel is also without support.

       20.    In the unlikely event this Court believes that there is not adequate evidence

or the existence of a material fact to preclude summary judgment on the breach of

contract claims, dismissal of Plaintiff’s claims under the theory of promissory estoppel

are clearly not in order.

       21.    In fact, a Plaintiff can bring a claim for promissory estoppel to enforce a

promise when some of the elements necessary to create a legal contract are missing. See


                                            -14-
Kelly v. Rio Grande Computerland Grp., 128 S.W.3d 759, 769 (Tex. App.-El Paso 2004,

no pet.).

       22.    The elements of promissory estoppel are (1) The Defendant made a promise

to Plaintiff; (2) The Plaintiff reasonably and substantially relied on the promise to its

detriment; (3) The Plaintiff’s reliance was foreseeable by the Defendant; and, (4)

Injustice can be avoided only by enforcing the Defendant’s promise. Collins v. Walker,

341 S.W.3d 579, 573-74 (Tex. App.-Houston [14th Dist.] 2011, no pet.) As the Court can

see, whether or not a counter-offer was a rejection or whether or not the acceptance of the

offer was made timely is not a requirement to recover under promissory estoppel.

       23.    Appellee has never argued that an offer to settle (the underlying promise)

was not made. In fact, the promise is properly before the Court in that in exchange to

settle Appellant’s claims, she would be given $12,000.00. (CR 58)

       24.    There is no question that Appellant relied on the promise to settle her case

for $12,000.00. Limitations had run in this matter at the time the offer was accepted, so

the settlement offer was Appellant’s sole opportunity for recovery. Appellee has never

argued that the promise to settle the case was not relied on by the Appellant.

       25.    Next, the reliance to settle the case for $12,000.00 was foreseeable. It was

not an offer that was unforeseeable. It was a nominal offer to settle a case by an insured’s

carrier to Appellant who was injured as a result of the negligence of the insured. The

amount of the settlement was not so ridiculous as to render the likely reliance on the offer

unforeseeable and the fact that the offer came from the insured’s carrier also made

reliance foreseeable.


                                            -15-
       26.    Finally, enforcing the promise to settle the case is the only way in which an

injustice can be avoided. As stated above, limitations in this matter has run. The only

opportunity Appellant has to recover for the damages she suffered as a result of its

insured’s negligence is if Appellee is forced to tender the settlement amount that was

offered.

       27.    First, summary judgment on the issue of promissory estoppel was barely

urged by the Appellee. In fact, to the extent it was, it was done so contrary to Texas case

law.

       28.    Appellee’s sole mention of summary judgment based on promissory

estoppel is as follows:

              To prevail on a claim of promissory estoppel, Plaintiff must
              establish “(1) a promise, (2) foreseeability of reliance
              thereon by the promisor, and (substantial reliance by the
              promise to his detriment.” English v. Fischer, 600 S.W.2d
              521, 524 9Tex. 1983); Miller v. Raytheon Aircraft Co., 229
              S.W.3d 358, 378-79 (Tex. App.-Houston [1st Dist.] 2007 no
              pet.). Because Plaintiff cannot establish any of these
              elements, Plaintiff’s promissory estoppel claim against Texas
              Farm Bureau should be dismissed. (CR 26)

       29.    This is the entirety of Appellee’s argument for summary judgment as to

Appellant’s promissory estoppel claims and there is no specific identification as to which

elements are lacking.

       30.    When a no-evidence motion for summary judgment does not challenge the

specific elements, it should be treated as a traditional motion for summary judgment

under TRCP 166a(c), which imposes the burden on the movant, not as a motion under

TRCP 166(a)(i), which imposes the burden on the non-movant. See Weaver v. Highlands


                                           -16-
Ins. Co., 4 S.W.3d 816, 819 (Tex. App.-Corpus Christi 2002, no pet.) More importantly,

the motion cannot be conclusory or generally allege that there is no evidence to

support the non-movant’s claim or defense. Timpte Indus. V. Gish, 286 S.W.3d 306,

310 (Tex.2009).

       31.    Appellee’s motion regarding Plaintiff’s claims for relief via promissory

estoppel contains no analysis, no facts and no caselaw supporting its position, and

Appellee makes no cogent arguments justifying why summary judgment should be

granted. In fact, the motions do nothing more than generally allege there is no

evidence of promissory estoppel that Timpte Indus, Inc. specifically precludes. In

other words, a party cannot simply roll out a motion for summary judgment by reciting

the elements, then requiring the Court to do the heavy lifting for them. Appellee did not

sustain its burden as is required to obtain a no-evidence summary judgment.

       32.    Accordingly, the summary judgment regarding promissory estoppel was

not pled with facts sufficient for it to be granted. To the extent it was considered, a proper

analysis was clearly withheld. Clearly, every reasonable inference was not indulged in

favor of the non-movant as Texas caselaw has long held. See, e.g., Nixon v. Mr. Prop.

Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). The trial court’s judgment must be

reversed.

                                        Conclusion

       33.    So, clearly there is more than a mere scintilla of evidence and fact issues

that preclude summary judgment on Appellee’s motions for summary judgment regarding

Appellant’s breach of contract claims. Fact issues abound and the arguments urged by


                                             -17-
Appellee’s counsel do not trump statements made by their client regarding how they

concluded the offer of settlement was withdrawn. Their claim that the offer was

withdrawn by virtue of limitations (a position they never advanced until after the offer

was accepted) is evidence that their belief was that the offer was open even after the

Stowers demand and is telling as to their mindset.

       34.       Appellant reminds the Court that caselaw holds it is the statements and

actions by a party – not their subjective belief, that determine the terms of the agreement.

Clearly, neither Appellant nor Appellee believed and acted as though the Stowers demand

was a rejection. To the extent the law suggests otherwise, in circumstances where the

parties are silent, there was no silence here. The only mechanism by which Appellee

believed its offer was revoked was by virtue of the expiration of limitations, and this can

be no clearer.

       35.       As to the issue of whether or not the offer was accepted in a reasonable

time, this is clearly a fact issue for the jury and not an issue to be decided by summary

judgment. The gap between when the offer was made and accepted is approximately nine

months and not nine years. In fact, based on the correspondence of the Appellee stating

that an offer was open until the expiration of limitations, an offer could be open for over

twenty months (assuming an offer was made soon after the accident that forms the basis

of the lawsuit), so long as it was accepted prior to the expiration of limitations.

Considering the expiration of limitations assertion by Appellee, the acceptance of an

offer only nine months latter does not seem unreasonable at all, contrary to what

Appellee argued to the trial court.


                                            -18-
       36.    Finally, Appellee’s summary judgment regarding promissory estoppel is

flawed procedurally and substantively. Procedurally, general comments do not a proper

no evidence summary judgment make. Substantively, the equitable cause of action should

not have been dismissed given the facts and circumstances regarding this case. Clearly,

there was reliance by Appellant on Appellee’s promise to settle the case for $12,000.00.

With limitations now expired, justice can only be avoided by enforcing the offer to settle

that contained no deadline for acceptance nor any clause that required acceptance prior to

the expiration of limitations.

       37.    The standard of review for a traditional summary judgment is well

established: (1) the movant for summary judgment has the burden of showing that no

genuine issue of material fact exists and that it is therefore entitled to summary judgment

as a matter of law; (2) in deciding whether there is a disputed material fact issue

precluding summary judgment, evidence favorable to the non-movant will be taken as

true; and (3) every reasonable inference must be indulged in favor of the non-movant and

any doubts resolved in the non-movant’s favor. See, e.g., Nixon v. Mr. Prop. Mgmt. Co.,

690 S.W.2d 546, 548–49 (Tex. 1985). Clearly, every reasonable inference was not

indulged in favor of the non-movant as Texas caselaw has long held.

                                         Prayer

       For these reasons Appellant, moves this Court to reverse the trial court’s summary

judgment and remand the case for a trial on the merits.

                                          Respectfully submitted:

                                          MESTEMAKER, STRAUB & ZUMWALT


                                           -19-
                                             /s/ David K. Mestemaker
                                          By:________________________________
                                             David K. Mestemaker
                                             dkm@msandz.com
                                             TBN 13974600
                                             FBN 14410
                                             3100 Timmons Lane, Suite 455
                                             Houston, Texas 77027
                                             (713) 626-8900 Telephone
                                             (713) 626-8910 Telecopier

                                          ATTORNEY FOR APPELLANT


                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing instrument was served
on:

Louis Layrisson III
louie.layrisson@bakerbotts.com
Baker Botts L.L.P.
One Shell Plaza
910 Louisiana St.
Houston, Texas 77002-4995

     In compliance with Rule 9.5 of the Texas Rules of Appellate Procedure, on this
  th
29 day of January, 2015.

                                                               /s/ David K. Mestemaker
                                                               ______________________
                                                               David K. Mestemaker




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