                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-17-00181-CV


EDOSOMWAN OSA                                                       APPELLANT

                                       V.

NEILL INVESTMENTS, LLC                                               APPELLEE

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          FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY
                    TRIAL COURT NO. 2015-002204-3

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                        MEMORANDUM OPINION 1

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      Appellant Edosomwan Osa challenges the trial court’s grant of a final

summary judgment in favor of Appellee Neill Investments, LLC (Neill

Investments).   Determining that there are genuine issues of material fact

surrounding the existence and enforceability of a valid, binding contract between




      1
       See Tex. R. App. P. 47.4.
Osa and Neill Investments, we reverse and remand the trial court’s judgment for

further proceedings.

                                 BACKGROUND

      On April 15, 2015, Neill Investments sued Osa for breach of contract and

statutory fraud seeking attorney’s fees and the specific performance of an

alleged real estate contract related to the sale of Osa’s home at 818 Wind

Brooke Drive in Arlington, Texas (the Wind Brooke Home). In its petition, Neill

Investments alleged that the parties had executed a standard form Texas Real

Estate Commission One to Four Family Residential Sales Contract (the Contract)

for the sale of the Wind Brooke Home on January 12, 2015 and that under the

terms of the Contract, closing was to take place on or before February 13, 2015.

Neill Investments further alleged that “[t]he parties [had] agreed to extend the

closing date based on a mechanics and materialman’s lien that was outstanding

on the property,” but Osa had “failed to get the lien removed.” Neill Investments

also alleged that it had sent Osa written notice of a date on which closing would

take place, but Osa did not attend the closing.

      Neill Investments filed a motion for traditional summary judgment

contending that Osa breached the Contract by failing to close on February 13,

2015 and that Osa committed “statutory” fraud because he had no intention of

closing at the time the Contract was executed. See Tex. Bus. & Com. Code Ann.

§ 27.01 (West 2015) (providing a cause of action for fraud in real estate

transactions). As summary judgment evidence, Neill Investments attached the


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Contract and the affidavit of Michael Neill, managing partner of Neill Investments.

In the affidavit, Mr. Neill stated that after execution of the Contract, he took the

Contract and $500 earnest money to a title company. He also averred that he

wrote a $25 check to Osa for the termination option in the Contract, but he did

not exercise his option. Mr. Neill’s affidavit further stated that he went to the

closing on February 13, 2015, but Osa did not attend. Mr. Neill’s affidavit did not

mention any agreed extension of the closing date by the parties or any notice

sent to Osa regarding the closing date as alleged in Neill Investments’s petition.

In addition, Neill Investments attached to its motion for summary judgment the

affidavit of Neill Investments’s attorney in support of its request for an award of

$1,500 in attorney’s fees.

      Osa filed a response to the motion for summary judgment. Among other

arguments, Osa contended that there were genuine issues of material fact

precluding summary judgment related to Neill Investments’s breach of contract

claim. Osa pointed out that Mr. Neill’s affidavit stated that the Contract was

executed on January 12, 2015, but in the actual Contract, the “executed” date

field was left blank. Osa further argued that “[w]hen an ‘EXECUTED’ date is left

blank the parties are still in the ‘offer’ stage.”     Osa also contended Neill

Investments stated in its petition that the parties agreed to extend the closing

date, and thus by its own admission, Neill Investments was aware that the

closing date would not be on February 13, 2015 as it was contending in its

motion for summary judgment.


                                         3
      In support of his response to the motion for summary judgment, Osa

attached an email dated January 20, 2015 to him from Mr. Neill stating that “[t]he

bank is waiting on the appraisal and the title work,” that “[t]hey anticipate we

should be able to close some time mid week next week,” and that “I will keep you

posted as we progress.” Osa also attached his own affidavit where he swore that

(1) on February 18, 2015, the parties were still discussing the terms of their

agreement; (2) on that date, Mr. Neill sent him an email about a “mutual

benefitted agreement” regarding a contractor; (3) there is no mechanic’s lien

attached to the Wind Brooke Home; (4) the parties did not agree on a closing

date of February 13, 2015; and (5) he did not receive the earnest money or

termination fee. Osa further attached a February 18, 2015 email (five days after

the alleged closing date) to him from Mr. Neill in which Mr. Neill stated:

“I understand you are having a problem resolving your situation with your

contractor” and that “[w]e have the ability to partner on this project and it won’t

cost you any money, you won’t have to pay your contractor until we sell the

house.”

      In February 2017, the trial court granted summary judgment for Neill

Investments and ordered specific performance of the Agreement, requiring Osa

to attend a closing and convey fee simple title of the Wind Brooke Home to Neill

Investments. The trial court also awarded attorney’s fees to Neill Investments. 2


      2
        There was no mention of Neill Investments’s claim for statutory fraud in
the trial court’s February 2017 order. And while Neill Investments’s motion for

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Osa then moved for rehearing and a new trial, which the trial court denied after a

hearing.

                                   DISCUSSION

      Osa brings three issues on appeal, contending that the trial court (1) erred

in granting summary judgment on Neill Investments’s breach of contract claim;

(2) erred in ordering specific performance of the Contract; and (3) erred in

awarding attorney’s fees to Neill Investments. Specifically, in its first issue, Osa

argues that the trial court erred in granting summary judgment because there are

summary judgment stated that it was entitled to summary judgment on its fraud
claim “inasmuch as Osa had no intention of closing on the property when he
signed the Contract,” it raised no independent ground, argument, or evidence
supporting summary judgment on that claim. See Stiles v. Resolution Trust
Corp., 867 S.W.2d 24, 26 (Tex. 1993); Powell v. Knipp, 479 S.W.3d 394,
408 n.9 (Tex. App.—Dallas 2015, pet. denied) (a summary judgment may not be
granted on grounds not set out in the motion for summary judgment). Further,
the February 2017 order did not unequivocally state that it finally disposed of all
parties and claims. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.
2001) (“[W]hether a judicial decree is a final judgment must be determined from
its language and the record in the case.”). Because we were concerned that the
February 2017 order was neither a final judgment nor an appealable interlocutory
order, we abated this appeal on January 5, 2018 to allow the trial court to
consider rendering a modified order making the February 2017 order final. See
Tex. R. App. P. 27.2.

        Upon abatement, the trial court signed a “Modified Order Granting
Plaintiff’s Motion for Summary Judgment” granting Neill Investments’s motion for
summary judgment and stating that it was “final and appealable and disposed of
all parties and claims. Plaintiff shall take nothing with regard to its statutory fraud
claim.” Although the trial court’s modified order erroneously disposed of Neill
Investments’s statutory fraud claim, it is nonetheless clear to this court that the
trial court’s order is a final, appealable order disposing of all claims and parties.
See Lehmann, 39 S.W.3d at 200 (“A judgment that grants more relief than a
party is entitled to is subject to reversal, but it is not, for that reason alone,
interlocutory.”)


                                          5
genuine issues of material fact as to whether there was a “meeting of the minds”

between the parties as to when the Contract was executed and as to the closing

date for the Wind Brooke Home. Because we hold that Neill Investments did not

establish as a matter of law that Osa breached a valid contract between the

parties, we reverse the trial court’s judgment and need not reach Osa’s

remaining two issues. See Tex. R. App. P. 47.1.

A.    Standard of Review

      In a summary judgment case, the issue on appeal is whether the movant

met the summary judgment burden by establishing that no genuine issue of

material fact exists and that the movant is entitled to judgment as a matter of law.

Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,

289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo.

Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A plaintiff is

entitled to summary judgment on a cause of action if it conclusively proves all

essential elements of the claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v.

Jones, 710 S.W.2d 59, 60 (Tex. 1986). When reviewing a summary judgment,

we take as true all evidence favorable to the nonmovant, and we indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. IHS

Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794,

798 (Tex. 2004).




                                         6
B.    There Are Genuine Issues of Material Fact Regarding Whether the
      Parties Entered into a Valid Contract.

      Here, Osa challenges whether the summary judgment evidence presented

by Neill Investments was sufficient to establish that Osa breached a contract

between the parties. A breach of contract occurs when a party fails to perform

an act it has expressly or impliedly promised to perform. Esty v. Beal Bank

S.S.B., 298 S.W.3d 280, 299 (Tex. App.—Dallas 2009, no pet.). The elements of

a breach of contract claim are:         (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 by the plaintiff as a result

of that breach.      Fieldtech Avionics & Instruments, Inc. v. Component

Control.Com, Inc., 262 S.W.3d 813, 825 (Tex. App.—Fort Worth 2008, no pet.).

We will focus our analysis to determine whether the evidence establishes that

there are no genuine issues of material fact related to the first element necessary

to prove a breach of contract—whether Neill Investments established the

existence of a valid contract between the parties.

      Parties enter into a valid binding contract when the following elements

exist: (1) an offer; (2) an acceptance in strict compliance with the terms of the

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

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

binding. Thornton v. Dobbs, 355 S.W.3d 312, 316 (Tex. App.—Dallas 2011, no

pet.); Buxani v. Nussbaum, 940 S.W.2d 350, 352 (Tex. App.—San Antonio 1997,



                                        7
no writ). “‘Meeting of the minds’ describes the mutual understanding and assent

to the agreement regarding the subject matter and the essential terms of the

contract.” City of The Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699,

720 (Tex. App.—Fort Worth 2008, pet. dism’d) (citing Weynand v. Weynand,

990 S.W.2d 843, 846 (Tex. App.—Dallas 1999, pet. denied)). “Mutual assent,

concerning material, essential terms, is a prerequisite to formation of a binding,

enforceable contract.”    Id. (citing T.O. Stanley Boot Co. v. Bank of El Paso,

847 S.W.2d 218, 221 (Tex. 1992)). The determination of a meeting of the minds,

and thus offer and acceptance, is based on the objective standard of what the

parties said and did and not on their subjective state of mind. Ishin Speed Sport,

Inc. v. Rutherford, 933 S.W.2d 343, 348 (Tex. App.—Ft. Worth 1996, no writ)

(stating that whether conduct exhibits acceptance is a question of fact for the trier

of fact); Hallmark v. Hand, 885 S.W.2d 471, 477 (Tex. App.—El Paso 1994, writ

denied).   In order to make this objective determination, we must necessarily

review “the communications between the parties and . . . the acts and

circumstances surrounding those communications.”             Copeland v. Alsobrook,

3 S.W.3d 598, 605 (Tex. App.—San Antonio 1999, pet. denied).

      Further, if an alleged contract is so indefinite as to make it impossible for a

court to fix the legal obligations of the parties, it cannot constitute a valid contract.

Meru v. Huerat, 136 S.W.3d 383, 390 (Tex. App.—Corpus Christi 2004, no pet.).

To be a valid, enforceable contract, the parties must agree to the material terms

of the contract. T.O. Stanley Boot Co., 847 S.W.2d at 221; America’s Favorite


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Chicken Co. v. Samaras, 929 S.W.2d 617, 622 (Tex. App.—San Antonio 1996,

writ denied). Indeed, it is not enough that one party thinks that he has made a

contract; he must show that the intentions of the parties to make a contract have

been expressed in a matter that the court can understand. Bendalin v. Delgao,

406 S.W.2d 897, 899 (Tex. 1966) (quoting 1 Corbin on Contracts § 95 (2nd ed.

1963)).

      Osa first contends that because the Contract is undated, an essential term

of the Contract was left out, and it is thus unenforceable. See Wiley v. Bertelsen,

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

agreement which is too vague, indefinite and uncertain is not an enforceable

contract, and a contract is not enforceable when the agreement of the parties

leaves an essential term for later determination and it is never determined.”). We

agree with Osa that the summary judgment evidence raises a fact question about

whether the parties were still in the offer stage of negotiating the Contract.

      The lack of a date of execution in the Contract does not, alone, necessarily

show a lack of a meeting of the minds. However, it raises a fact issue on the

question when we consider it in the context of the rest of the Contract and along

with other evidence. As asserted by Osa in the trial court, a number of the

parties’ obligations in the Contract were triggered by or had deadlines based on

the Contract’s “effective date,” defined in the Contract as the date of execution.

For example, Neill Investments’s deadline for obtaining a survey of the property

began to run from the effective date, and Osa’s limit on leasing the property and


                                          9
obligations to repair casualty damage to the property started with the effective

date. However, the record before us simply does not show when the Contract

was executed. Rather, while the Contract shows that it was signed by Neill

Investments and Osa, it is undated and the “executed” date above the signature

lines of both parties is blank. Further, in Mr. Neill’s affidavit in support of his

company’s motion for summary judgment, he merely testifies that the Contract

was entered “[i]n or around” January 12, 2015, providing no clarity as to when,

and if, the parties actually executed the Contract.

      Further complicating matters as to whether the Contract is valid and

binding on the parties are fact issues surrounding whether the parties agreed to a

firm closing date. Although the undated Contract does provide that the parties

close on the sale of the Wind Brooke Home on February 13, 2015, Neill

Investments’s petition unequivocally states that “[t]he parties agreed to extend

the [February 13, 2015] closing date based on a mechanics and

materialman’s lien that was outstanding on the property.”               [Emphasis

added.] Despite this statement, Mr. Neill’s affidavit avers that he appeared at the

closing on behalf of Neill Investments on February 13, 2015.

      In addition, on February 18, 2015, five days after the alleged contracted

closing date, Mr. Neill emailed Osa, stating:

      I understand you are having a problem resolving your situation with
      your contractor and I think I may have a solution that does not
      require any more money out of your pocket.




                                         10
      We have the ability to partner on this project and it won’t cost you
      any money, you won’t have to pay your contract until we sell the
      house and you can share in the profits from the sale of the house.

      If you are interested please give me a call so I can explain how this
      will be mutually beneficial and we can process with the rehab of the
      house.

      Thanks,

      Mike Neill

      This evidence suggests, and certainly presents a question of material fact,

that the parties did not reach a meeting of the minds that the agreed closing date

was to be February 13, 2015 as contended by Neill Investments. Further, Osa

included with his summary judgment response Mr. Neill’s January 20 email

updating Osa on “where we are on the purchasing process,” informing Osa that

the bank did not yet have title documents or an appraisal, and asking if Mr. Neill’s

contractor could have access to the Wind Brooke Home to “work up a bid” for Mr.

Neill. Yet in his next email to Osa, Mr. Neill talked about Osa’s dealings with his

own contractor. The language of these emails suggest that the parties were still

negotiating whether the Wind Brooke Home would be sold “as is,” as provided

under a provision in the Contract, or whether Osa would have a contractor do

rehab work on the house, and further negotiating whether Osa would partner with

Neill Investments on repairs on the house and share in Neill Investments’s profits

generated by the sale of the rehabbed house.

      Considering, as we must, all the evidence in the light most favorable to

Osa and disregarding all contrary evidence and inferences, we hold that the date


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of execution of the Contract and the date of closing under the Contract are

disputed material issues that are essential in Neill Investments’s claim that a

valid, binding contract existed and was breached.      See Ludlow v. DeBerry,

959 S.W.2d 265, 272 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (for an

agreement to be enforceable, there must be a meeting of the minds with respect

to the agreement’s subject matter and essential terms); see also Hallmark,

885 S.W.2d at 477 (when one party disputes the existence of a meeting of the

minds, the existence of an enforceable agreement is a question of fact).

Accordingly, we sustain Osa’s first issue and hold that the trial court erred in

granting Neill Investments’s motion for summary judgment with regard to its

breach of contract claim.

                                CONCLUSION

      Having sustained Osa’s first issue and held that the trial court erred in

granting Neill Investments’s motion for traditional summary judgment, we reverse

the trial court’s judgment and remand the case to the trial court for further

proceedings. See Tex. R. App. P. 43.2(d), 43.3.



                                                  /s/ Mark T. Pittman
                                                  MARK T. PITTMAN
                                                  JUSTICE

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

DELIVERED: April 12, 2018



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