Opinion issued August 8, 2017




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-16-00166-CV
                           ———————————
         WESTWOOD DENTAL MANAGEMENT, INC., Appellant
                                        V.
                  DARBY DENTAL SUPPLY, LLC, Appellee


             On Appeal from the County Civil Court at Law No. 4
                           Harris County, Texas
                       Trial Court Case No. 1069539


                         MEMORANDUM OPINION

      Appellant Westwood Dental Management, Inc. appeals the trial court’s

summary judgment in favor of appellee Darby Dental Supply, LLC in its suit on a

contract. In three issues, Westwood contends that the trial court erred by granting

summary judgment.
      Because Darby failed to prove all elements of its cause of action as a matter

of law, we reverse the summary judgment and remand for further proceedings.

                                   Background

      Appellee Darby Dental Supply, LLC sued appellant Westwood Dental

Management, Inc. for overdue unpaid sums that were due on an account. In its

petition, Darby alleged that Westwood had entered into “an agreement for goods

and/or services” which was attached to the petition as Exhibit A. Instead of

demonstrating any agreement to provide “goods and/or services,” Exhibit A was

Darby’s credit application form, which had been filled out by Westwood.

      Darby alleged that all conditions precedent were satisfied, and that

Westwood had failed to pay “in accordance with the verified account.” Darby

attached a statement showing the itemized overdue amounts. It also attached to the

petition an affidavit from Robyn Livingston, who was identified as Darby’s agent

and custodian of records. In the affidavit, she averred that the “account, claim and

cause of action in favor of” Darby and against Westwood “in the sum of

$32,557.15 dollars is within the personal knowledge of affiant just and true, that it

is due, that all just and lawful offsets, payments and credits have been allowed, and

that the facts in this affidavit are true.” Westwood answered with a general denial.

      Darby filed a motion for summary judgment, which characterized the case as

a “suit based upon a contract.” As grounds for summary judgment, Darby argued


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that Westwood did not “deny execution of the contract” and “pursuant to Rule

93(7) of the Texas Rules of Civil Procedure, the Answer is insufficient in law to

constitute a defense.” Darby therefore argued that it was entitled to judgment as a

matter of law. Darby also sought attorney’s fees under Chapter 38 of the Civil

Practice and Remedies Code.

      In response to the motion for summary judgment, Westwood argued that

Darby had not proved the existence of a contract as a matter of law because the

credit application was not a contract.

      The trial court granted summary judgment, awarding Darby $32,557.15 plus

interest, attorney’s fees, and court costs. Westwood appealed.

                                         Analysis

      In three issues, Westwood generally asserts that the trial court erred by

granting summary judgment in Darby’s favor.

      We review de novo the trial court’s ruling on a motion for summary

judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d

844, 848 (Tex. 2009). A party moving for traditional summary judgment bears the

burden of showing that no genuine issue of material fact exists and that it is

entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); see Provident Life

& Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). When a

plaintiff moves for summary judgment on its own claim, it must prove


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conclusively all essential elements of its cause of action. See Rhone–Poulenc, Inc.

v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); City of Houston v. Clear Creek Basin

Auth., 589 S.W.2d 671, 678 (Tex. 1979).

       In its first issue, Westwood argues that there was no evidence of the

existence of a valid contract because Darby relied solely upon a credit application

attached to its petition.

       To prevail on a claim for breach of contract, the plaintiff must establish the

following elements: (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 the breach. S. Elec. Servs.,

Inc. v. City of Houston, 355 S.W.3d 319, 323–24 (Tex. App.—Houston [1st Dist.]

2011, pet. denied). The elements of a valid contract are (1) an offer; (2) an

acceptance; (3) a meeting of the minds; (4) mutual consent to the terms; and, in the

case of a written contract, (5) execution and delivery of the contract with the intent

that it be mutual and binding. Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d

631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). “Mutual assent,

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

enforceable contract.” Potcinske v. McDonald Prop. Invs., Ltd., 245 S.W.3d 526,

530 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing T.O. Stanley Boot Co. v.

Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992)).


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         The only contract Darby presented as summary-judgment evidence was the

credit application and authorization. This related to the extension of credit by

Darby to Westwood, but not to any other agreement about the provision of goods

or services for a fee. Darby presented no summary-judgment evidence of any other

agreement between the parties resulting in the alleged “balance due.” While there

may have been an agreement between Darby and Westwood resulting in an unpaid

account, Westwood is correct that Darby’s motion failed to establish all the facts

necessary to support a summary judgment in its favor as the plaintiff on a contract

claim.

         Darby did present a “statement of account,” which listed “invoices,”

“finance charges,” and “open amounts,” resulting in a “balance due,” without any

reference to the underlying agreement or transactions giving rise to the “balance

due.” To the extent that Darby’s pleadings appear to have been an attempt to

invoke the procedure for a sworn account, see TEX. R. CIV. P. 185, it did not argue

or demonstrate that it was entitled to summary judgment on that basis. See TEX. R.

CIV. P. 166a (“The motion for summary judgment shall state the specific grounds

therefor.”).

         We conclude that Darby failed conclusively to prove, as it argued, a contract

for sales or services resulting in an outstanding balance of $32,557.15. Because

Darby did not prove conclusively all elements of its cause of action, we hold that


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the trial court erred by granting summary judgment in its favor. See Rhone–

Poulenc, 997 S.W.2d at 223; City of Houston, 589 S.W.2d at 678. We sustain

Westwood’s first issue, which relieves us from the obligation of addressing the

other arguments. See TEX. R. APP. P. 47.1.

                                     Conclusion

      We reverse the trial court’s summary judgment, and we remand the case to

the trial court for further proceedings consistent with this opinion.




                                               Michael Massengale
                                               Justice

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




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