Opinion issued July 2, 2015




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00686-CV
                           ———————————
                         KAMISHA DAVIS, Appellant
                                        V.
              TEXAS FARM BUREAU INSURANCE, Appellee


                    On Appeal from the 61st District Court
                            Harris County, Texas
                      Trial Court Case No. 2013-22651


                                  OPINION

      Kamisha Davis sued Texas Farm Bureau Insurance, asserting several causes

of action. The trial court granted summary judgment against Davis in favor Texas

Farm Bureau. On appeal, Davis raises two issues in which she asserts that the trial
court erred in granting summary judgment on her breach of contract and

promissory estoppel claims.

      We affirm.

                                  Background

      On August 26, 2009, Kamisha Davis was involved in a motor vehicle

accident with Texas Farm Bureau’s insured. Davis hired attorney Corey Gomel to

pursue a personal injury claim arising out of the accident. On April 19, 2011,

Gomel sent Texas Farm Bureau a letter, stating that Davis would be willing to

settle her personal-injury claims against Texas Farm Bureau’s insured for $37,500.

Texas Farm Bureau, through its claims adjuster, Jody Roe, made a counter-offer of

$10,000 on May 2, 2011.

      Gomel, on behalf of Davis, sent a second settlement offer of $22,500 to

Texas Farm Bureau on June 9, 2011. On June 10, 2011, Texas Farm Bureau

responded that, “[a]fter careful review and evaluation of the information you have

submitted, we believe this claim has a value of $12,000.00.” Gomel made a

counteroffer of $18,000.00 on June 21, 2011. In response, Texas Farm Bureau

sent a letter to Gomel on June 30, 2011, again stating that it valued her claim at

$12,000.00.




                                        2
      On July 28, 2011, Davis’s attorney faxed Texas Farm Bureau a Stowers

demand. 1 The fax cover sheet stated, “We are withdrawing past [June 21] demand.

Please see attached.”

      The Stowers demand informed Texas Farm Bureau that Davis would settle

her claims only if Texas Farm Bureau paid her “the limits of your insured’s

policy.” It further stated, “This will be the only correspondence that you will

receive prior to us filing suit.” The demand also informed Texas Farm Bureau that

the offer to settle for the policy limits expired on August 29, 2011.

      Davis never filed a personal injury suit against Texas Farm Bureau or the

insured. At some point, Davis retained new counsel. On April 12, 2012, Davis’s

new counsel sent a letter to Texas Farm Bureau, which stated, “We have been

retained by Corey Gomel to assist . . . in the prosecution of this matter for Ms.

Davis.    Please be advised our client, Ms. Kamisha Davis, has given us

authorization to accept your final offer of $12,000.00. Please forward settlement

documents to the address above.”

      On April 20, 2012, claims adjuster Roe responded, denying Davis’s claim.

Roe informed Davis, “Our offer expired on the two year anniversary from the date

of accident 8-26-2009; therefore, we are respectfully declining your client’s

claim.”

1
      See G.A. Stowers Furniture Co. v. Am. Indem. Co., 15 S.W.2d 544 (Tex. Comm’n
      App. 1929, holding approved).

                                          3
      Davis filed suit against Texas Farm Bureau on April 16, 2013. She alleged

as follows:

      In an attempt to settle the matter, [Texas Farm Bureau] offered
      [Davis] $12,000.00 to settle [Davis’s] claims on June 10, 2011. 2 This
      offer of settlement had neither a designated time period in which
      [Davis] had to accept the offer, nor did the offer state that it expired
      on any date or upon any action or inaction of [Davis] or that the offer
      would otherwise be revoked. [Texas Farm Bureau] never revoked the
      offer. Furthermore, [Davis] never rejected the offer. . . . On April 13,
      2012, [Davis] accepted the offer to settle the case and sent the
      acceptance letter via fax. On April 20, 2012, [Texas Farm Bureau]
      denied the offer, stating that the offer expired on the expiration of
      limitations of the underlying incident. . . . [Davis] relied on the
      representations made by [Texas Farm Bureau], that being that there
      was an open ended offer to settle her case for $12,000.00. [Texas
      Farm Bureau] never revoked the offer to [Davis] until after [Davis]
      had accepted the offer. . . . [Texas Farm Bureau has] failed to make
      the offer of settlement good. [Davis] relied on [Texas Farm Bureau’s]
      promise to [Davis’s] detriment.

Based on these allegations, Davis asserted claims for breach of contract,

promissory estoppel, fraud, and quantum meruit against Texas Farm Bureau.

      Texas Farm Bureau moved for traditional summary judgment on Davis’s

breach-of-contract claim, asserting that Davis’s Stowers demand was a rejection of

its last $12,000 offer. Texas Farm Bureau argued that, because it offered to settle

the dispute for full policy limits, a sum greater than the $12,000 offer, the Stowers


2
      Texas Farm Bureau sent a letter to Davis on June 10, 2011 stating it valued her
      claim at $12,000. Davis counteroffered for $18,000 on June 21, and Texas Farm
      Bureau sent another letter to Davis on June 30 again stating that it valued her
      claim at $12,000. In any event, the omission of the June 30 letter from Davis’s
      allegations makes no difference to the resolution of this appeal.

                                         4
demand was a counteroffer. Texas Farm Bureau cited authority for the proposition

that a settlement offer does not remain open after a counteroffer has been made.

Thus, according to Texas Farm Bureau, Davis could no longer accept the $12,000

offer after she made the Stowers demand.        It asserted that, without a valid

acceptance, no contract had been formed between Texas Farm Bureau and Davis as

a matter of law.

      To support its traditional motion for summary judgment, Texas Farm Bureau

offered the written settlement negotiations between the parties, including the

Stowers demand. It also offered Davis’s discovery responses. In addition to its

traditional motion for summary judgment, Texas Farm Bureau also requested a no-

evidence summary judgment with respect to each of Davis’s causes of action.

      Davis responded to Texas Farm Bureau’s request for summary judgment.

She asserted that an issue of material fact existed with regard to whether Texas

Farm Bureau’s $12,000 settlement offer remained open. To support her position,

Davis referred to the April 20, 2012 letter from Texas Farm Bureau claims adjuster

Jody Roe, which denied Davis’s acceptance of Texas Farm Bureau’s June 2011

$12,000 settlement offer.

      Davis pointed to Roe’s statement that Texas Farm Bureau’s “offer expired

on the two year anniversary from the date of the accident 8-26-2009; therefore, we

are respectfully declining your client’s claim.” Davis asserted that this statement



                                        5
indicates that Texas Farm Bureau considered its offer to be “open until limitations

ran,” and that Texas Farm Bureau had not considered the Stowers demand to be a

counteroffer. Davis pointed out that Texas Farm Bureau never expressly revoked

its $12,000 settlement offer or placed a time limitation on it; thus, it remained

open. Davis acknowledged that an offer “may expire after a reasonable time,” but

she asserted that, what constitutes a reasonable time is a question of fact, not a

question of law.

      Without stating the grounds for its decision, the trial court granted Texas

Farm Bureau’s motion for summary judgment, ordering that Davis take nothing by

her claims against Texas Farm Bureau. This appeal followed. In two issues, Davis

asserts that the trial court erred by granting summary judgment on her claims for

breach of contract and promissory estoppel. 3

                               Summary Judgment

A.    Summary-Judgment Standards

      Texas Farm Bureau asserted both traditional and no-evidence grounds in its

motion for summary judgment. See TEX. R. CIV. P. 166a(c), (i). In reviewing a

grant of summary judgment, we consider the evidence in the light most favorable

to the nonmovant. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009) (citing

City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005)). We credit evidence

3
      Davis does not appeal the summary judgment with respect to her fraud and
      quantum meruit claims.

                                         6
favorable to the nonmovant if reasonable jurors could, and we disregard evidence

contrary to the nonmovant unless reasonable jurors could not. See Timpte Indus.,

Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). When, as here, the trial court does

not specify the grounds for its grant of summary judgment, we must affirm the

summary judgment if any of the theories presented to the court and preserved for

appeal are meritorious. See Provident Life & Accident Ins. Co. v. Knott, 128

S.W.3d 211, 216 (Tex. 2003).

      After an adequate time for discovery, the party without the burden of proof

may move for a no-evidence summary judgment on the basis that there is no

evidence to support an essential element of the non-moving party’s claim. TEX. R.

CIV. P. 166a(i); see Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008).

Summary judgment must be granted unless the non-movant produces competent

summary judgment evidence raising a genuine issue of material fact on the

challenged elements. TEX. R. CIV. P. 166a(i); Hamilton, 249 S.W.3d at 426. A

non-moving party is “not required to marshal its proof; its response need only point

out evidence that raises a fact issue on the challenged elements.” TEX. R. CIV. P.

166a (cmt. 1997).

      A no-evidence summary judgment motion is essentially a motion for a

pretrial directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581–82

(Tex. 2006). Accordingly, we apply the same legal-sufficiency standard of review



                                         7
that we apply when reviewing a directed verdict. City of Keller, 168 S.W.3d at

823. Applying that standard, a no-evidence point will be sustained when (1) there

is a complete absence of evidence of a vital fact, (2) the court is barred by rules of

law or 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 conclusively establishes the opposite of a vital fact. King

Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); see City of Keller, 168

S.W.3d at 810. Less than a scintilla of evidence exists when the evidence is “so

weak as to do no more than create a mere surmise or suspicion” of a fact, and the

legal effect is that there is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d

61, 63 (Tex. 1983). In other words, we review a no-evidence summary judgment

for evidence that would enable reasonable and fair-minded jurors to differ in their

conclusions. See Hamilton, 249 S.W.3d at 426 (citing City of Keller, 168 S.W.3d

at 822).

      To prevail on a traditional Rule 166a(c) summary judgment motion, a

movant must prove that there is no genuine issue regarding any material fact and

that it is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c);

Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). A

defendant moving for summary judgment must either (1) disprove at least one

element of the plaintiff’s cause of action or (2) plead and conclusively establish



                                          8
each essential element of an affirmative defense to rebut the plaintiff’s cause.

Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).                The movant must

conclusively establish its right to judgment as a matter of law. See MMP, Ltd. v.

Jones, 710 S.W.2d 59, 60 (Tex. 1986). A matter is conclusively established if

reasonable people could not differ as to the conclusion to be drawn from the

evidence. See City of Keller, 168 S.W.3d at 816.

      If the movant meets its burden, the burden then shifts to the nonmovant to

raise a genuine issue of material fact precluding summary judgment. See Centeq

Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a

genuine issue of fact if reasonable and fair-minded jurors could differ in their

conclusions in light of all of the summary judgment evidence. Goodyear Tire &

Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

B.    Breach of Contract

      In her first issue, Davis asserts that the trial court erred by granting summary

judgment on her breach-of-contract claim.

      The elements of a valid contract are as follows: (1) an offer, (2) an

acceptance, (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. Jim Maddox Props., LLC v. WEM Equity Capital Invs., Ltd., 446 S.W.3d

126 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing DeClaire v. G & B



                                          9
Mcintosh Family Ltd. P’ship, 260 S.W.3d 34, 44 (Tex. App.—Houston [1st Dist.]

2008, no pet.)). To prevail on a breach of contract claim, a plaintiff must show (1)

the existence of a valid contract; (2) performance or tendered performance by the

plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained as

a result of the breach. B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 16 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied) (citing Valero Mktg. & Supply Co. v.

Kalama Int’l, 51 S.W.3d 345, 351 (Tex. App.—Houston [1st Dist.] 2001, no pet.)).

      Here, to prevail on its traditional motion for summary judgment, Texas Farm

Bureau had to conclusively establish that no contract existed between it and Davis

because Davis’s Stowers demand constituted a counteroffer to Texas Farm

Bureau’s $12,000 settlement offer. A counteroffer is an offer made by an offeree

to her offeror relating to the same matter as the original offer and proposing a

substituted bargain differing from that proposed by the original offer. Thurmond v.

Wieser, 699 S.W.2d 680, 682 (Tex. App.—Waco 1985, no writ).              That is, a

counteroffer must itself be an offer capable of being accepted. See RESTATEMENT

(SECOND) OF CONTRACTS § 39 cmt. a (1981); 1 ARTHUR LINTON CORBIN, CORBIN

ON CONTRACTS § 3.35, at 490–91 (rev. ed. 1993). Once accepted, the original

offeror will be bound to the terms of the counteroffer.           See CORBIN ON

CONTRACTS, § 3.35, at 490-91 n.1.




                                        10
      A material change in a proposed contract constitutes a counteroffer. G.D.

Holdings, Inc. v. H.D.H. Land & Timber, L.P., 407 S.W.3d 856, 861 (Tex. App.—

Tyler 2013, no pet.) (citing Gilbert v. Pettiette, 838 S.W.2d 890, 893 (Tex. App.—

Houston [1st Dist.] 1992, no pet.)). A contractual provision dealing with payment

is always an essential element or a material term. Id. (citing Parker Drilling Co. v.

Romfor Supply Co., 316 S.W.3d 68, 74 (Tex. App.—Houston [14th Dist.] 2010,

pet. denied).

      In this case, it is clear from the express terms of the Stowers demand that it

related to the same subject matter as Texas Farm Bureau’s $12,000 offer: namely,

settlement of Davis’s personal injury claims against Texas Farm Bureau’s insured.

Davis’s Stowers demand proposed a different settlement payment from that

proposed by Texas Farm Bureau in its June 2011 offer. Texas Farm Bureau had

offered to settle Davis’s claims for $12,000. In contrast, Davis’s Stowers demand

provided that she would settle her claims only if Texas Farm Bureau paid her “the

limits of your insured’s policy.” The summary judgment evidence showed that the

policy limits were greater than $12,000.

      The terms of the Stowers demand were definite, certain, and capable of

being accepted by Texas Farm Bureau. In other words, they were sufficient to

create a power of acceptance in Texas Farm Bureau. If it had accepted the terms of

the Stowers demand agreement, Texas Farm Bureau could reasonably have



                                           11
expected to be bound by them. We conclude that Davis’s Stowers demand, when

viewed objectively, constituted a counteroffer to Texas Farm Bureau’s June 2011

settlement offer as a matter of law.

      “A counteroffer constitutes a rejection, not an acceptance, of the original

offer.” Blackstone v. Thalman, 949 S.W.2d 470, 473 (Tex. App.—Houston [14th

Dist.] 1997, no writ). An offeree’s power of acceptance is terminated by the

making of a counteroffer, unless the offeror has manifested a contrary intention or

unless the counteroffer manifests a contrary intention of the offeree. Thurmond,

699 S.W.2d at 682; see also RESTATEMENT (SECOND) OF CONTRACTS § 39(2).

Once it has been terminated by the making of a counteroffer, an offeree’s power to

accept the original offer cannot be revived by later accepting the offer. See Legal

Sec. Life Ins. Co. v. Ward, 373 S.W.2d 693, 698 (Tex. Civ. App.—Austin 1963, no

writ) (holding that the rejection of an offer has the effect of terminating it, and it

cannot be revived by later acceptance); see also Figueroa v. Davis, 318 S.W.3d 53,

68–69 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (stating that, “[u]nder

contract principles, once an offer is rejected, it is terminated, and the rejecting

party cannot thereafter accept it”); RESTATEMENT (SECOND)       OF   CONTRACTS § 36

(1981) (offeree’s power of acceptance is terminated by rejection of offer); id.

§ 35(2) (1981) (a contract cannot be created by acceptance of an offer after the

power of acceptance has been terminated).



                                         12
      By making a counteroffer in her Stowers demand, Davis terminated her

power of acceptance over Texas Farm Bureau’s June 2011 settlement offer. The

summary judgment evidence in the record shows that Texas Farm Bureau’s June

2011 settlement offer did not manifest any intent to keep the offer open for any

fixed period of time. See RESTATEMENT (SECOND) OF CONTRACTS § 39(2) cmt. c.

(“An offeror may state in his offer that it shall continue for a stated time in any

event and that in the meanwhile he will be glad to receive counter-offers.”).

Similarly, Davis did not state in her Stowers demand—that is, her counteroffer—

that she was still holing Texas Farm Bureau’s offer under advisement. See id.

(“[A]n offeree may state that he is holding the offer under advisement, but that if

the offeror desires to close a bargain at once the offeree makes a specific counter-

offer . . . .”); see also J. M. Radford Grocery Co. v. Noyes, 293 S.W. 653, 654

(Tex. Civ. App.—Austin 1927, no writ) (“A counteroffer by the offeree, relating to

the same matter as the original offer, is a rejection of the original offer, unless the

offeree at the same time states in express terms that he is still keeping the original

offer under advisement.”).

      In sum, Davis’s April 12, 2012 acceptance of Texas Farm Bureau’s $12,000

offer came too late to create a contract between the parties. See Legal Sec. Life

Ins., 373 S.W.2d at 698. We hold that Texas Farm Bureau met its summary-




                                          13
judgment burden to conclusively show that there was no enforceable contract

between Texas Farm Bureau and Davis.

      Because Texas Farm Bureau established its entitlement to summary

judgment as a matter of law, Davis was then required to present to the trial court

competent summary judgment evidence raising a genuine issue of material fact that

would preclude summary judgment in favor of Texas Farm Bureau. See Centeq

Realty, 899 S.W.2d at 197.

      Davis points to claims adjuster Roe’s April 20, 2012 letter, which stated that

Davis’s claim was denied because Texas Farm Bureau’s “offer expired on the two

year anniversary from the date of the accident 8-26-2009.” She asserts the letter

indicates that Texas Farm Bureau’s offer remained open to acceptance after the

Stowers demand.      More specifically, Davis claims that the letter is evidence

showing either (1) that Texas Farm Bureau never considered the Stowers demand

to be a counteroffer or (2) that Texas Farm Bureau re-offered the $12,000 to after

Davis made Stowers demand. We disagree.

      Even presuming Roe’s letter shows that she thought there was an open offer

after the Stowers demand, whether a valid offer and acceptance have occurred is

based on objective standards; it is not based on the subjective beliefs of the parties.

See Fuqua v. Fuqua, 750 S.W.2d 238, 245 (Tex. App.—Dallas 1988, writ denied);

Slade v. Phelps, 446 S.W.2d 931, 933 (Tex. Civ. App.—Tyler 1969, no writ); see



                                          14
also Gordin v. Shuler, 704 S.W.2d 403, 407 (Tex. App.—Dallas 1985, writ ref’d

n.r.e.) (“The fact that one party thought, supposed, or expected something is not

sufficient to show an enforceable agreement.”). To determine whether there was

an offer and acceptance using an objective standard, courts consider the parties’

communications and actions pertaining to the formation of the contract. See Komet

v. Graves, 40 S.W.3d 596, 601 (Tex. App.—San Antonio 2001, no pet.); Domingo

v. Mitchell, 257 S.W.3d 34, 41 (Tex. App.—Amarillo 2008, pet. denied); Wiley v.

Bertelsen, 770 S.W.2d 878, 882 (Tex. App.—Texarkana 1989, no writ).

      As stated, an offeree’s power of acceptance is terminated by the making of a

counteroffer, unless the offeror has manifested a contrary intention or the

counteroffer manifests a contrary intention of the offeree. Thurmond, 699 S.W.2d

at 682. We have concluded that the Stowers demand was a counteroffer, and that

neither the Stowers demand nor any communication from Texas Farm Bureau,

preceding Davis purported acceptance, manifested an intention by Texas Farm

Bureau to hold the offer open. Roe’s letter alone cannot retroactively create an

open offer after Davis purported to accept the offer. This is true regardless of

whether she, Texas Farm Bureau, or Davis subjectively believed the offer

remained open after the counteroffer was made.        Rather, whether the offer

remained open is determined by examining the communications of the parties

before the acceptance was tendered.



                                       15
      The communications between the parties before the acceptance show no

objective manifestations to keep the offer open after Davis’s counteroffer. For the

offer to have been open at the time of Davis’s acceptance, Texas Farm Bureau

would have needed either (1) to have indicated that its June 2011 offer would

remain open, even if a counter-offer was made, (2) or to have expressly responded

to Davis’s counteroffer by stating that the offer remained open. The summary

judgment record indicates Texas Farm Bureau did neither.

      After reviewing all the summary-judgment evidence in the record, we

conclude that Davis failed to meet her burden. None of the summary judgment

evidence created a material fact issue regarding whether Davis’s Stowers demand,

acting as a counteroffer, terminated Davis’s power to accept the June 2011 offer or

whether Texas Farm Bureau’s offer remained open after the counteroffer. We

conclude that the summary-judgment evidence conclusively showed that there was

not a valid contract between Texas Farm Bureau and Davis to settle her personal-

injury claims. We hold that the trial court did not err by granting summary

judgment on Davis breach-of-contract claim.

      We overrule Davis’s first issue.

C.    Promissory Estoppel

      In her second issue, Davis asserts that the trial court erred by granting Texas

Farm Bureau’s no-evidence motion for summary judgment on her promissory-



                                         16
estoppel claim. 4 Davis first complains that the motion was inadequate with respect

to her promissory-estoppel claim because it “contains no analysis, no facts and

case law supporting its position, and [Texas Farm Bureau] makes no cogent

arguments justifying why summary judgment should be granted.”

      Rule of Civil Procedure 166a(i) governs no-evidence motions for summary

judgment. See Tex. R. Civ. P. 166a(i). Rule 166a(i) provides that a motion must

“state the elements as to which there is no evidence.” Id. A no-evidence motion

“must be specific in challenging the evidentiary support for an element of a claim

or defense; paragraph (i) does not authorize conclusory motions or general no-

evidence challenges to an opponent’s case.” Timpte Indus., Inc. v. Gish, 286

S.W.3d 306, 310 (Tex. 2009) (quoting TEX. R. CIV. P. 166a cmt.–1997). “The

underlying purpose of this requirement ‘is to provide the opposing party with

adequate information for opposing the motion, and to define the issues for the

purpose of summary judgment.’” Id. at 311 (quoting Westchester Fire Ins. Co. v.

Alvarez, 576 S.W.2d 771, 772 (Tex. 1978)). The supreme court analogized this

purpose to that of “fair notice” pleading requirements. Id.

      Here, Texas Farm Bureau’s motion specifically listed each challenged

element of the promissory-estoppel claim. Texas Farm Bureau stated that Davis


4
      Texas Farm Bureau filed only a no-evidence motion for summary judgment with
      regard to Davis’s promissory-estoppel claim; it did not assert a traditional motion
      for summary judgment regarding this claim.

                                          17
could not establish any of these elements. Thus, Texas Farm Bureau identified the

elements as to which it contended there was no evidence, thereby giving Davis

“fair notice” of what it was challenging. See id. Thus, we conclude that, as to

Davis’s promissory-estoppel claim, the no-evidence motion met the requirements

of Rule 166a(i). See Gary E. Patterson & Assocs., P.C. v. Holub, 264 S.W.3d 180,

201 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (holding that motion

identifying and then challenging all elements of claim was sufficiently specific to

satisfy Rule 166a(i)).

      As identified by Texas Farm Bureau in its motion, the elements of

promissory estoppel are as follows: (1) a promise; (2) foreseeability of reliance

thereon by the promisor; and (3) substantial reliance by the promisee to his

detriment. Miller v. Raytheon Aircraft Co., 229 S.W.3d 358, 378–79 (Tex. App.—

Houston [1st Dist.] 2007, no pet.). Attached to Davis’s response to Texas Farm

Bureau’s motion was the following: (1) the April 20, 2012 letter from Roe; (2) the

June 10, 2011 letter from Texas Farm Bureau stating that “[a]fter careful review

and evaluation of the information you have submitted, we believe this claim has a

value of $12,000.00”;5 and (3) the April 13, 2012 letter from Davis’s attorney



5
      As mentioned, Davis responded to Texas Farm Bureau’s June 10 letter on June 21
      with a counteroffer of $18,000 to settle her claims. Texas Farm Bureau responded
      on June 30 again stating that it valued Davis’s claim a $12,000.


                                         18
stating that Davis had given her “authorization to accept your final offer of

$12,000.00. Please forward settlement documents to the address above.” 6

      Although not expressly mentioning promissory estoppel, Davis asserted the

following in her response:

      There is . . . more than a mere scintilla of evidence that there was an
      offer (Defendant would pay Plaintiff $12,000.00 in exchange for a full
      and final settlement.) Reliance on that offer by Plaintiff was
      foreseeable. There was nothing unreasonable about the offer and the
      offer was made based on a valid dispute between Plaintiff and
      Defendant’s insured. There is also evidence of substantial reliance as
      Plaintiff has given up her right to pursue other forms of recovery with
      the lapse of time.

      We conclude that Davis’s evidence fails to raise a genuine issue of material

fact on each element of her promissory-estoppel claim.          First, Davis has not

presented evidence of a promise. To support a finding of promissory estoppel, a

successful promissory estoppel claim must be based on “an actual promise.” See

Stable Energy, L.P. v. Kachina Oil & Gas, Inc., 52 S.W.3d 327, 336 (Tex. App.—

Austin 2001, no pet.). The asserted “promise” must be sufficiently specific and

definite so that it would be reasonable and justified for the promisee to rely on it as

a commitment to future action. Comiskey v. FH Partners, LLC, 373 S.W.3d 620,

635 (Tex. App.—Houston [14th Dist.] 2012, pet. denied).




6
      Davis did not include the Stowers demand as part of her summary-judgment
      evidence.

                                          19
      Here, Davis appears to characterize the “promise” to be Texas Farm

Bureau’s “offer” to pay her “$12,000.00 in exchange for a full and final

settlement.” However, there was no evidence that Texas Farm Bureau definitively

and unconditionally promised Davis anything. Texas Farm Bureau’s June 10,

2011 letter, offered by Davis, reads:

      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.

      The letter informed Davis that Texas Farm Bureau believed her claim was

worth $12,000 and inquired of her attorney whether Davis would be willing to

settle for that amount. We note that there is a distinction between tendering a

promise to pay someone a certain price to settle a claim and an inquiry into

whether that person is willing to settle for that amount. In this regard, the letter

reflects the fluid and indefinite nature of an ongoing negotiation process, nothing

more. At most, Davis’s evidence shows an offer to settle, which was conditioned

on her acceptance of the offer. The evidence did not reflect a commitment by

Texas Farm Bureau to pay Davis $12,000 or otherwise evidence a definite,

unconditional promise. Thus, Davis offered no evidence of an “actual promise,”

an essential element for any promissory-estoppel claim.




                                        20
      Second, Davis offered no evidence of foreseeability. Until Davis accepted

the offer, Texas Farm Bureau was free to withdraw it. See Brown v. Haywood, No.

07–02–0424–CV, 2004 WL 757962, at *4 (Tex. App.—Amarillo Apr. 8, 2004, pet.

denied) (mem. op.). Thus, until Davis accepted the offer, it was not foreseeable to

Texas Farm Bureau that Davis would rely on it. See, e.g., Henderson v. Tex.

Commerce Bank–Midland, N.A., 837 S.W.2d 778, 782 (Tex. App.—El Paso 1992,

writ denied) (holding that, with respect to promissory-estoppel claim, debtor failed

to offer evidence that bank could foresee that debtor would rely on preliminary

negotiations without meeting all conditions on loan).

      Finally, Davis offered no evidence that she substantially relied on the offer

to her detriment. Davis claimed, “There is also evidence of substantial reliance as

Plaintiff has given up her right to pursue other forms of recovery with the lapse of

time.” In making this assertion, Davis apparently relies on the inference that,

because she waited until after limitations ran on her claim to accept the offer, she

must have relied on the offer in choosing to wait. However, Davis points to no

evidence to show how her reliance on the June 2011 offer, made two months

before limitations ran, resulted in her foregoing “her right to pursue other forms of

recovery”; nor did she show it was reasonable and justified. See Ortiz v. Collins,

203 S.W.3d 414, 421 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (stating that

reliance must be reasonable and justified).



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      Generally, reliance on representations made in an adversarial context, such

as litigation, is not justified. Here, the parties were not involved in litigation;

however, the offer was made in an adversarial context. See Ortiz, 203 S.W.3d at

422 (“We hold that, as a matter of law, the parties’ relationship remained

adversarial, and thus any reliance by Ortiz on statements made by appellees during

the negotiation process was unjustified and unreasonable.”). As stated, Texas

Farm Bureau was free to withdraw its offer at any time before Davis’s acceptance.

Thus, Davis waited to accept the offer until after limitations ran at her own peril.

By so doing, it was her choice to forego “her right to pursue other forms of

recovery with the lapse of time.” Davis presented no evidence that, under the

circumstances, it was reasonable or justified to wait until after limitations ran to

accept the offer.

      We conclude that Davis failed to raise an issue of fact on each element of

her promissory-estoppel claim. Thus, we hold that the trial court did not err in

granting summary judgment on that claim.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                             Laura Carter Higley
                                             Justice

Panel consists of Chief Justice Radack and Justices Higley and Massengale.




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