Reversed, Rendered, and Remanded and Majority and Dissenting Opinions
filed July 25, 2019.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-17-00976-CV

                           KYLE TAUCH, Appellant
                                        V.

VIRGINIA ANGEL, TRUSTEE FOR THE GOBSMACK GIFT TRUST, AS
  ASSIGNEE OF SOUTH STATE BANK, AND SOUTH STATE BANK,
                        Appellees

                    On Appeal from the 127th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2016-33404

                      MAJORITY OPINION

      The dispositive issue presented in this appeal is whether appellant Kyle
Tauch entered into a valid and enforceable settlement agreement with appellee
South State Bank. Tauch appeals a summary judgment against him declaring that
he and the bank do not have a settlement agreement. The trial court concluded that
the bank impliedly revoked its settlement offer before Tauch attempted to accept it.
We conclude as a matter of law that the bank made a settlement offer to Tauch, the
bank did not impliedly revoke its offer before Tauch accepted, and consequently
Tauch and the bank have a valid settlement agreement. Accordingly, we reverse
the trial court’s judgment and remand the case to the trial court for further
proceedings.

                                  Background

      A district court in South Carolina rendered a $4.6 million judgment in First
Federal Bank’s favor against Tauch. South State Bank is First Federal Bank’s
successor in interest. South State Bank domesticated the judgment in Texas.

      On April 11, 2016, following prior negotiations to settle the outstanding
judgment, South State Bank’s senior vice president, James Holden, emailed Tauch,
stating that Holden “received authority to release your judgment for net proceeds
of $2,000,000 which is still over a 50% discount. If you find that you and your
investors can make this happen, please let me know as quickly as possible as the
bank will likely be look[ing] at other collection alternatives.” Tauch did not
immediately respond.

      Two days later, an attorney representing a third party, Virginia Angel,
emailed Tauch’s attorney and informed him that South State Bank had assigned its
interest in the South Carolina judgment to Angel. Angel demanded immediate
payment for the full amount of the judgment. At Tauch’s request, Angel’s attorney
sent a copy of the assignment agreement (“Assignment Agreement”) to Tauch’s
attorney by email at 5:23 p.m. on April 13. The Assignment Agreement’s effective
date was the next day, April 14, 2016. Shortly after receiving a copy of the
Assignment Agreement, Tauch emailed Holden on April 13 at 6:12 p.m. and
stated: “I have spoken with my investors and they are OK with your offer. We
agree to the 2 million payment which is a release and not a purchase.” South State
                                        2
Bank’s attorney responded to Tauch by email, stating that the bank assigned the
judgment before receiving Tauch’s acceptance email to Holden, that the bank
would not be forwarding any settlement paperwork, and that Tauch should make
all payments on the judgment directly to the assignee, Angel.

      In May, Angel and South State Bank signed a “Clarification of Assignment.”
(“Clarification Agreement”).         The Clarification Agreement states that the
Assignment Agreement’s April 14 effective date was a mistake and that the
Assignment Agreement “was meant to be dated and effective on April 13, 2016.”

      Angel then filed suit, seeking a declaratory judgment that, as a matter of law:
(1) Tauch could not have accepted the bank’s settlement offer on April 13 because
Tauch’s receipt of the Assignment Agreement, before he attempted to accept,
terminated his power of acceptance; (2) Tauch’s April 13 email accepting the
bank’s offer did not form a contract because essential terms are missing from the
relevant emails; and (3) Tauch owes the full amount of the South Carolina
judgment, plus interest, to Angel.

      Tauch filed counterclaims against Angel, seeking a declaratory judgment
that his April 13 email to Holden constituted an acceptance of South State Bank’s
offer and formed a binding $2 million settlement agreement. He also asserted a
claim for tortious interference with contract. Tauch filed a third-party petition
against South State Bank, asserting a claim for breach of the settlement agreement.

      Angel and Tauch filed cross-motions for summary judgment on their
competing declaratory judgment claims. Angel argued that South State Bank’s
execution of the Assignment Agreement, coupled with Tauch’s receipt of the
Assignment Agreement, impliedly revoked the bank’s April 11 settlement offer,
and that Tauch therefore had no power to accept the bank’s offer on April 13 at
6:12 p.m.    Tauch argued that his April 13 6:12 p.m. email constituted an
                                           3
acceptance of Holden’s offer and created a binding and enforceable settlement
contract.

      The trial court granted Angel’s motion and implicitly denied Tauch’s
motion. The court concluded that Tauch could not have accepted the offer made
by South State Bank to settle the South Carolina judgment because Tauch’s power
of acceptance terminated upon notice of, and Tauch’s receipt of, the Assignment
Agreement. Because the court held that Tauch has no binding contract with South
State Bank to compromise and settle the South Carolina judgment, the court signed
a final judgment that Tauch take nothing on his claims against Angel and South
State Bank. The trial court awarded Angel and South State Bank their attorney’s
fees, in amounts agreed by all parties, but provided that Tauch could recover his
fees from Angel and the bank if he prevailed on appeal.

                                    Analysis

      Tauch presents four issues for our review, but all are based on a central
argument: he entered into a valid and binding settlement agreement with South
State Bank on April 13 at 6:12 p.m. before the Assignment Agreement became
effective.

A.    Standard of review

      The parties’ cross-motions for summary judgment present a question of law
regarding the existence of a settlement agreement. We review the trial court’s
order granting or denying summary judgment on cross-motions de novo. See
Lane-Valente Indus. (Nat’l), Inc. v. J.P. Morgan Chase, N.A., 468 S.W.3d 200, 204
(Tex. App.—Houston [14th Dist.] 2015, no pet.); see also Wausau Underwriters
Ins. Co. v. Wedel, 557 S.W.3d 554, 557 (Tex. 2018) (“A declaratory judgment
granted on a traditional motion for summary judgment is reviewed de novo.”)


                                        4
(internal quotation omitted). When both sides move for summary judgement and
the trial court grants one motion and denies the other, we review both sides’
summary judgment evidence to determine all questions presented. Lane-Valente
Indus., 468 S.W.3d at 204. A movant is entitled to summary judgment if it
establishes that there is no genuine issue of material fact and it is entitled to
judgment as a matter of law. Id.

B.    The parties’ cross-motions for summary judgment

      Tauch moved for summary judgment on his declaratory judgment claim,
arguing that Holden’s April 11 email and Tauch’s April 13 email together
constitute a valid, binding, and enforceable settlement agreement.      Settlement
agreements are governed by principles of contract law. See id. Under Texas law, a
legally enforceable contract generally consists of: (1) an offer; (2) acceptance in
strict compliance with the terms of the offer; (3) a meeting of the minds; (4) each
party’s consent to the terms; (5) execution and delivery of the contract with the
intent that it be mutual and binding; and (6) consideration. See Coleman v. Reich,
417 S.W.3d 488, 491 (Tex. App.—Houston [14th Dist.] 2013, no pet.); Parker
Drilling Co. v. Romfor Supply Co., 316 S.W.3d 68, 72 (Tex. App.—Houston [14th
Dist.] 2010, pet. denied).

      Angel opposed Tauch’s motion on three grounds: (1) Holden’s email was
not an offer; (2) Tauch’s email was not an acceptance; and (3) the emails together
lack essential terms necessary to settlement.

      1. Was South State Bank’s April 11 email an offer?

      We first address whether Tauch proved as a matter of law that Holden’s
April 11 email was an offer. An offer “must be reasonably definite in its terms and
must sufficiently cover the essentials of the proposed transaction that, with an


                                          5
expression of assent, there will be a complete and definite agreement on all
essential details.” Principal Life Ins. Co. v. Revalen Dev., LLC, 358 S.W.3d 451,
455 (Tex. App.—Dallas 2012, pet. denied) (citing Edmunds v. Houston Lighting &
Power Co., 472 S.W.2d 797, 798-99 (Tex. App.—Houston [14th Dist.] 1971, writ
ref’d n.r.e)); see also Advantage Physical Therapy, Inc. v. Cruse, 165 S.W.3d 21,
26 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (offer must be clear and
definite just as there must be a clear and definite acceptance of all terms contained
in the offer); Restatement (Second) of Contracts § 24 (an offer is the manifestation
of willingness to enter into a bargain, so made as to justify another person in
understanding that his assent to that bargain is invited and will conclude it).

      Tauch and South State Bank engaged in a series of electronic mail
communication in an attempt to settle the South Carolina judgment. In December
2015, Tauch sent Holden an email, “proposing a payment of $250,000 to settle”
the judgment. Holden responded that “the bank is unable to accept your settlement
offer of $250,000.” Tauch then asked for “any direction on” what the bank would
be willing to accept as a settlement. Holden responded that he could not “see the
bank being able to entertain any settlement offers less than $1M given [Tauch’s]
judgment total. If [Tauch] [could] find some help to get [him] to that level,”
Holden indicated that he would be interested in further negotiations. In January
2016, Tauch again emailed Holden, proposing “payment of 1 million within 45
days of a settlement agreement which is in the form of a purchase of the
judgment.” Holden acknowledged receipt of that “email and offer” and stated that
he would “put a package together today with the terms and submit it to [the bank’s]
senior management for final approval.” After two months passed without approval
from the bank, Tauch contacted Holden and said he was “willing to just settle the
judgment for 1 million instead of purchasing the judgment.”


                                           6
      In response, Holden sent the following email to Tauch on April 11:

      I received word . . . that the bank will not be able to accept your offer
      to sell your note/judgment or take a discounted settlement for the
      outright release price of $1M that you had offered. . . . To assist you
      in understanding what amount the bank would be able to accept, I did
      ask for a counter figure and received authority to release your
      judgment for net proceeds of $2,000,000 which is still over a 50%
      discount. If you find that you and your investors can make this
      happen, please let me know as quickly as possible as the bank will
      likely be look[ing] at other collection alternatives.

      The terms of Holden’s April 11 email—to release the outstanding judgment
in exchange for net proceeds of $2,000,000—are clear and definite. The email
covers “the essentials of the proposed transaction” that, with an expression of
Tauch’s assent, “there will be a complete and definite agreement.” Principal Life
Ins. Co., 358 S.W.3d at 455; see also Advantage Physical Therapy, 165 S.W.3d at
26.

      In opposition, Angel contends that Holden’s April 11 email was exploratory,
and not a firm offer. Angel likens Holden’s email to an invitation for an offer:

      A writes B, “I am eager to sell my house. I would consider $20,000
      for it.” B promptly answers, “I will buy your house for $20,000
      cash.” There is no contract. A’s letter is a request or suggestion that
      an offer be made to him. B has made an offer.

Restatement (Second) of Contracts § 26, illus. 4.

      We disagree. Nothing in Holden’s email indicates that the bank would
merely consider releasing the judgment for $2 million if Tauch offered to do so.
Rather, Holden’s email makes clear that he had “authority to release [Tauch’s]
judgment” for a sum certain and that, upon Tauch’s assent to Holden’s $2 million
offer, the parties would conclude their dealing. Holden was awaiting a response
from Tauch whether he could “make this happen.” Holden’s April 11 email is both

                                          7
a rejection of Tauch’s $1 million offer and a clear counteroffer to release the
judgment in exchange for $2 million.           We hold that Holden’s April email
constitutes an offer as a matter of law.

      2. Was Tauch’s April 13 email an acceptance?

      The next issue is whether Tauch proved as a matter of law that he accepted
the bank’s offer. An offeree must communicate a clear and definite acceptance of
all terms contained in the offer. See Advantage Physical Therapy, 165 S.W.3d at
26; see also Restatement (Second) of Contracts § 50(1) (acceptance of an offer is a
manifestation of assent to the terms thereof made by the offeree in a manner
invited or required by the offer). The offeree must accept in strict compliance with
the material terms of the offer. An acceptance that is conditioned on terms at
variance with those in the offer operates as a counteroffer and terminates the
original offer. See Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437
S.W.3d 507, 512 (Tex. 2014).

      In response to Holden’s April 11 offer, Tauch sent Holden an email on April
13 at 6:12 p.m., stating:

      I have spoken with my investors and they are OK with your offer. We
      agree to the 2 million payment which is a release and not a purchase.
      Please send paperwork so I can review.
      Tauch’s response accepted the material terms of Holden’s offer.            He
“agree[d] to” the bank’s offer of a “2 million payment” to release the outstanding
judgment. He did not vary the terms of Holden’s offer, nor was his acceptance
equivocal or conditional; thus, Tauch’s email is a clear and definite acceptance of
all material terms contained in Holden’s offer.      See, e.g., Angelou v. African
Overseas Union, 33 S.W.3d 269, 279 (Tex. App.—Houston [14th Dist.] 2000, no
pet.) (“Angelou’s letter did not vary the terms of AOU’s offer (e.g., that she would

                                           8
only, say, accept the award in Dallas), nor was it in any way equivocal (e.g., she
would only ‘consider’ coming); thus, her acceptance was in strict compliance with
the terms of AOU’s offer.”).

      Angel contends, however, that by requesting paperwork for review Tauch
contemplated additional terms as part of the settlement agreement. Again, we
disagree. Tauch’s acceptance was not conditioned on any particular detail, such as
further documentation; the settlement was therefore binding upon his acceptance
so long as the other contract elements are met. See, e.g., MKM Eng’rs, Inc v.
Guzder, 476 S.W.3d 770, 779 (Tex. App.—Houston [14th Dist.] 2015, no pet.)
(“[T]he Rule 11 Agreement is not unenforceable merely because the parties
contemplated taking additional actions and executing a final settlement agreement
at a later date.”); see also Lerer v. Lerer, No. 05-02-00124-CV, 2002 WL
31656109, at *3 (Tex. App.—Dallas Nov. 26, 2002, pet. denied) (not designated
for publication) (although mediated settlement agreement “contemplated the
drafting of ‘more formal settlement documents,’ releases, and dismissals, it did not
provide the parties’ agreement was contingent on or subject to the completion of
any of these documents,” and so the court held that the parties intended to be
bound to the agreement as a matter of law); Restatement (Second) of Contracts
§ 27 (manifestations of assent that are in themselves sufficient to conclude a
contract will not be prevented from so operating by the fact that the parties also
manifest an intention to prepare and adopt a written memorial thereof).

      Angel’s next argument presents the key issue in the case. She contends that
Tauch could not have accepted the offer because Tauch’s power of acceptance
terminated before he sent the April 13 email. According to Angel, South State
Bank revoked its offer to settle by assigning its rights under the judgment to Angel,
which terminated Tauch’s power to accept the offer before he attempted to do so.

                                          9
      An offer may be made to a specified person, in whom is created a power of
acceptance. See Angelou, 33 S.W.3d at 279; Union Carbide Corp. v. Jones, No.
01-14-00574-CV, 2016 WL 1237825, at *6 (Tex. App.—Houston [1st Dist.] Mar.
29, 2016, pet. denied) (mem. op.); Restatement (Second) of Contracts § 28. A
contract cannot be created by acceptance of an offer after the power of acceptance
has terminated. See, e.g., 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”); see also Restatement (Second) of Contracts § 35(2). An offeree’s power of
acceptance may be terminated by, inter alia, revocation by the offeror. See Kidwill
v. Werner, No. 10-05-00274-CV, 2006 WL 3627883, at *1 (Tex. App.—Waco
Dec. 13, 2006, no pet.) (mem. op.); Restatement (Second) of Contracts § 36(1).
An offeror may revoke an offer “at any time up to time of acceptance.” Peacock v.
Harrison, 189 S.W.2d 500, 503 (Tex. App.—Austin 1945, writ dism’d); see also
Bowles v. Fickas, 167 S.W.2d 741, 743 (Tex. 1943).

      An offeror may revoke an offer expressly and directly. Kidwill, 2006 WL
3627883, at *1. It is undisputed that South State Bank did not directly revoke or
withdraw its offer to Tauch.

      Rather, Angel argues that South State Bank “impliedly revoked” its offer,
which terminated Tauch’s power to accept the offer. An offer is impliedly revoked
and the offeree’s power of acceptance terminates when “‘the offeree receives from
the offeror a manifestation of intention not to enter into a contract,’”1 or when “the
offeror takes definite action inconsistent with an intention to enter into the


      1
         Kidwill, 2006 WL 3627883, at *1 (quoting Valencia v. Garza, 765 S.W.2d 893, 896
(Tex. App.—San Antonio 1989, no writ)); accord also Antwine v. Reed, 199 S.W.2d 482, 485
(Tex. 1947).

                                          10
proposed contract and the offeree acquires reliable information to that effect.” Id.
at *1; see also Restatement (Second) of Contracts § 43.2

       According to Angel, South State Bank’s assignment of its right to collect the
South Carolina judgment, coupled with Tauch’s receipt of a copy of the
Assignment Agreement on April 13 before Tauch sent his acceptance email to
Holden, constituted a definite action by the bank that was inconsistent with its
prior intention to enter into a settlement with Tauch. The moment Tauch received
notice of the assignment, Angel contends, his power to accept South State Bank’s
offer terminated—regardless of the assignment’s effective date.                   Accordingly,
Tauch had no power to accept the revoked offer, and therefore no settlement
agreement exists.

       Angel relies on two real-estate cases to support her point. In Antwine v.
Reed, a bank sent a proposed land purchase contract to Reed. See 199 S.W.2d 482,
484 (Tex. 1947). Reed did not accept the contract until after Reed was advised of
the bank’s instruction to Reed’s broker to take the land off the market, which it
was argued amounted to notice that the bank revoked the proposed contract to
Reed. Id. at 485. The Supreme Court of Texas agreed and held that the bank and
Reed had no contract. Even when the offeror does not explicitly revoke its offer,
the court said, “it [is] sufficient that the person making the offer does some act
inconsistent with it, as, for example, selling the property, and that the person to
whom the offer was made has knowledge of such [a]ct.” Id.


       2
           Implied revocation is a principle typically, if not exclusively, applied in real-estate
cases. See Restatement (Second) of Contracts § 43 cmt. b (“The rule of this Section has been
applied most frequently to offers for the sale of an interest in land.”); see also id. Reporter’s
Note, cmt. c. (“No case not involving land has been found which follows the rule [of implied
revocation].”). Tauch argues that we should not extend the implied revocation doctrine beyond
the real-estate context. We will presume, without deciding, that implied revocation applies to the
facts of this case.

                                               11
      In Kidwill, Werner, the owner of real property, was negotiating separately
with Kidwill and Mast for the sale of the property.            See Kidwill, 2006 WL
3627883, at *1.      Kidwill made an offer to Werner.           Id.   Werner made a
counteroffer to Kidwill. Id. While Werner’s counteroffer was pending, Werner
concluded a contract with Mast. Id. Kidwill conceded that he learned that Werner
had accepted Mast’s offer before Kidwill attempted to accept. Id. The court of
appeals concluded that “there was [legally and factually sufficient] evidence that
Werner impliedly revoked her counteroffer to Kidwill by concluding a contract
with Mast, with Kidwill’s knowledge, before Kidwill attempted to accept.” Id. at
*2.

      We find these cases factually distinguishable from the matter at hand. In
both cases, the offeror proposed a contract to an offeree but then entered into a
contract with a third party as to the same subject matter before the original offeree
accepted the earlier proposed agreement in all of its terms. The original offeree
learned of the offeror’s contract with the third party, or other acts inconsistent with
the original offer, before the original offeree attempted to accept the outstanding
offer. Thus, the original offeree knew that the offeror had taken action inconsistent
with the outstanding offer and that would prevent the offer from materializing into
a contract with the original offeree, because the offeror could not sell something
that had already been sold to a third party. Here, in contrast, South State Bank and
Angel did not have an effective contract at the time Tauch accepted; the
Assignment Agreement did not become effective until April 14, the day after
Tauch’s acceptance. Because the Assignment Agreement was not effective until
April 14, South State Bank had not yet assigned its interest in the judgment to
Angel at the time Tauch accepted the bank’s offer to settle.



                                          12
      Presuming the implied revocation doctrine applies in the present context, we
conclude its elements are not met under applicable case law or Restatement
sections 42 or 43. Tauch did not receive from the bank a manifestation of an
intention not to enter into the proposed settlement agreement. Nor did the bank
take definite action inconsistent with an intention to enter into the proposed
contract with Tauch. The Assignment Agreement reflected on its face that it was
not effective until April 14, the day after Tauch received it.        No part of the
Assignment Agreement became effective before April 14. A contract signed on
April 13 but not effective until April 14 is no different than a contract signed on
April 14 and effective at its signing. The fact that the bank entered into an
assignment agreement that would not take effect until April 14 is not an action that
would prevent the bank’s April 11 offer to Tauch from materializing into a contract
with Tauch should he accept the proposal before April 14, which he did. We
conclude the Bank’s April 11 offer to Tauch was not impliedly revoked. The
parties agree that the bank’s April 11 offer was never expressly revoked so Tauch
had the power and the right to accept it before April 14. Because Tauch accepted
South State Bank’s offer before the Assignment Agreement’s effective date, Tauch
and the bank entered into a valid and binding settlement agreement.

      Angel contends further that the Assignment Agreement’s effective date is in
fact April 13, not April 14, by operation of the Clarification Agreement. We
cannot credit this contention. Parties cannot make a contract retroactively binding
to the detriment of a third party. See, e.g., Crowell v. Bexar County, 351 S.W.3d
114, 118-19 (Tex. App.—San Antonio 2011, no pet.) (noting “general rule” that
“parties to a contract cannot make the contract retroactively binding to the
detriment of third persons”); see also Williston on Contracts § 6:61 (parties may
agree to give a contract a specific effective date, except to the extent doing so


                                        13
would injure a third party’s rights); Restatement (Second) of Contracts § 155
(“Where a writing that evidences or embodies an agreement in whole or in part
fails to express the agreement because of a mistake of both parties as to the
contents or effect of the writing, the court may at the request of a party reform the
writing to express the agreement, except to the extent that rights of third parties
such as good faith purchasers for value will be unfairly affected.”); accord also
Ranger Ins. Co. v. Ward, 107 S.W.3d 820, 827-28 (Tex. App.—Texarkana 2003,
pet. denied) (parties’ retroactive release after notice of a loss was void as contrary
to public policy when the contracting parties entered the contract to escape liability
to an injured third party).

      We hold that Tauch’s April 13 email constitutes an acceptance of South
State Bank’s offer as a matter of law.

      3. Did South State Bank and Tauch agree to all essential terms?

      We next consider whether Tauch conclusively established a meeting of the
minds on all material terms. To form a binding contract, an offeror and offeree
“must agree to the same thing, in the same sense, at the same time.” Angelou, 33
S.W.3d at 279. The material terms of a settlement agreement include consideration
and a specification of liability or claims to be released. MKM Eng’rs, 476 S.W.3d
at 781-82; Padilla v. LaFrance, 907 S.W.2d 454, 460-61 (Tex. 1995) (material
terms of settlement agreement include consideration and release of claims). Both
Holden’s offer and Tauch’s acceptance stated that South State Bank would release
Tauch’s judgment for $2 million, which are the essential terms of the parties’
settlement agreement. See MKM Eng’rs, 476 S.W.3d at 781-82.

      Angel contends that the parties omitted key material terms from their emails,
and therefore they did not achieve a settlement agreement. According to Angel,
the following terms are missing or incomplete: (a) whether Tauch’s acquiescence
                                         14
to a $2 million dollar payment matches the $2 million “net proceeds” identified by
Holden’s April 11 email; (b) when payment must be made; (c) the form of the
payment; (d) the form and scope of the release; and (e) the substance of the final
settlement agreement. None of these allegedly missing or incomplete terms are
material or necessary to enforce the settlement agreement as documented by the
emails.

      First, Holden’s email specified that the consideration would be $2 million in
“net proceeds.” Tauch’s email does not mention “net proceeds,” but it does agree
to the $2 million payment. Tauch’s email does not contradict or vary from the
terms of Holden’s offer. The parties therefore agreed to the material term of
consideration. Accord, e.g., Amedisys, 437 S.W.3d at 514 (an immaterial variation
between the offer and acceptance will not prevent the formation of an enforceable
agreement) (citing United Concrete Pipe Corp. v. Spin-Line Co., 430 S.W.2d 360,
364-65 (Tex. 1968) (holding that change in pricing terms from “contract price” to
“unit price” did not “change the legal effect of the language” and thus was not
material and did not prevent formation of an enforceable contract)). There is but
one reasonable reading of the emails insofar as the consideration amount: the
parties agreed the consideration would be $2 million.

      Second, neither the timing nor the form of Tauch’s payment is a material
term. See Love v. Harrison, No. 14-16-00632-CV, 2017 WL 3567868, at *7 (Tex.
App.—Houston [14th Dist.] Aug. 17, 2017, no pet.) (mem. op.) (“Texas courts
hold that time of performance such as the time of payment of a settlement amount
is not an essential term because time ordinarily is not of the essence in a
contract.”); Eastman Gas Co., L.L.C. v. Goodrich Petroleum Co., L.L.C., 456
S.W.3d 319, 329 (Tex. App.—Texarkana 2015, pet. denied) (“Under the facts of



                                        15
this case, the manner of payment and the amount and rate of interest are not
essential terms.”).

      Finally, the form and scope of the final settlement agreement and release are
not material terms. See MKM Eng’rs, 476 S.W.3d at 779 (“[A]lthough appellants
complain that the terms of the releases were not spelled out and had yet to be
drafted, the Rule 11 Agreement identified the specific parties and claims that
would be released, as well as the claims to be excluded from the releases.”).

                                   *      *     *

      Holden’s April 11 email is an offer that Tauch accepted, and the parties
agreed to the material terms of the settlement agreement. The remaining contract
elements are conclusively established in the record and not challenged by Angel.
Thus, Tauch established as a matter of law that a legally enforceable settlement
agreement exists. The trial court erred in granting Angel’s motion for summary
judgment based on the principle of implied revocation and in denying Tauch’s
motion for summary judgment. We therefore sustain Tauch’s first, second, and
third issues and render judgment that the bank and Tauch reached a valid
agreement on April 13 to settle the judgment for $2 million.

C.    Attorney’s fees

      In his fourth issue, Tauch seeks rendition of judgment in his favor regarding
his entitlement to attorney’s fees. The trial court awarded Angel and South State
Bank trial attorney’s fees, conditional appellate fees, costs, and interest. The court
provided, however, that in the event that Tauch ultimately prevails following the
conclusion of any appeals, he is entitled to recover his fees and costs. The parties
stipulated to the amounts of trial and conditional appellate attorney’s fees to which
they are respectively entitled.


                                         16
      We reverse the portion of the final judgment that awards Angel and South
State Bank their fees, costs, and interest. We render judgment for Tauch on the
parties’ competing claims for declaratory judgment and render judgment that
Tauch recover his trial attorney’s fees, costs, interest in the trial court, and
attorney’s fees for representation in the court of appeals, in the amounts stipulated
by the parties and reflected in the trial court’s judgment.

      We sustain Tauch’s fourth issue.

                                     Conclusion

      We hold that South State Bank and Tauch entered into a legally enforceable
settlement agreement. We reverse the trial court’s rulings on the parties’ cross-
motions for summary judgment, as well as the award of fees, costs, and interest to
Angel and South State Bank. We render judgment for Tauch on the parties’
competing claims for declaratory judgment.         We render judgment that Tauch
recover from Angel and South State Bank, jointly and severally, his attorney’s
fees, costs, and interest. We remand the case to the trial court for proceedings
consistent with this opinion.




                                        /s/    Kevin Jewell
                                               Justice


Panel consists of Chief Justice Frost and Justices Jewell and Bourliot (Frost, C.J.,
dissenting).




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