ACCEPTED 01-14-00686-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 1/29/2015 2:49:19 PM CHRISTOPHER PRINE CLERK
CAUSE NO. 01-14-00686-CV
FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS In The 1/29/2015 2:49:19 PM Court of Appeals CHRISTOPHER A. PRINE For The Clerk st 1 District of Texas ________________________________________
KAMISHA DAVIS Appellant,
v.
TEXAS FARM BUREAU INSURANCE Appellees. ________________________________________
On Appeal from the 127th Judicial District Court Harris County, Texas Trial Court No. 2013-22651 ________________________________________
Appellant’s Brief ________________________________________
Mestemaker, Straub & Zumwalt David K. Mestemaker dkm@msandz.com SBN: 13974600 FBN: 14410 3100 Timmons Lane, Suite 455 Houston, Texas 77027 Telephone: (713) 626-8900 Facsimile: (713) 626-8910 Counsel for Appellant
Oral Argument Requested Identity of Parties and Counsel
APPELLANT David K. Mestemaker dkm@msandz.com Mestemaker, Straub & Zumwalt 3100 Timmons Lane, Suite 455 Houston, Texas 77027 Telephone: (713) 626-8900 Facsimile: (713) 626-8910
Appellant and Trial Counsel for KAMISHA DAVIS.
APPELLEES Louis Layrisson III louie.layrisson@bakerbotts.com Baker Botts L.L.P. One Shell Plaza 910 Louisiana St. Houston, Texas 77002-4995 Telephone: (713) 229-1421 Facsimile: (713) 229-7721
Appellee and Trial Counsel for TEXAS FARM BUREAU INSURANCE
-2- Table of Contents
Identity of Parties and Counsel ............................................................................ 2
Index of Authorities ............................................................................................ 4-5
Statement of Case ................................................................................................... 5
Relevant Procedural Background ......................................................................... 6
Issues Presented ...................................................................................................... 6
Statement of Facts .................................................................................................. 7
Summary of Argument .......................................................................................... 7
Argument ............................................................................................................ ….8
Standard of Review ................................................................................................... 8
A fact issue and more than a mere scintilla of evidence exists precluding summary judgment on Appellant’s breach of contract claim ................ 8
A fact issue and more than a mere scintilla of evidence exists precluding summary judgment on Appellant’s breach of contract claim .............. 14
Conclusion ............................................................................................................. 17
Prayer .................................................................................................................... 19
Certificate of Service ............................................................................................ 20
-3- Index of Authorities
Cases
B&W Sup. V. Beckman, 305 S.W.3d 10 (Tex.App.-Houston [1st Dist.] 2009, pet. denied). ……………………….9
City of the Colony v. North Tex. Mun. Water Dist., 272 S.W.3d 699 (Tex.App.-Fort Worth 2009, pet. dism’d) ……………………..10
Collins v. Walker, 341 S.W.3d 579 (Tex.App.-Houston [14th Dist.] 2011, no pet.) …………………15
David J. Sacks, P.C. v. Haden, 266 S.W.3d 447 (Tex.2008). ……………………………………………………..10
DeClaire v. G&B McIntosh F.L.P., 260 S.W.3d 34 (Tex.App.-Houston [1st Dist.] 2008, no pet.) ……………10, 11, 14
DeSantis v. Wackenhut Corp., 732 S.W.2d 29(Tex.App.-Houston [14th Dist.] 1987) rev’d in part on other grounds, 793 S.W.2d 670 (Tex.1990). …………………………………………….9
English v. Fischer, 600 S.W.2d 521 (Tex. 1983). …………………………………………………….16
Ferguson v. Building Materials Corp. of America, No. 08-0589 (Tex. Jul. 3, 2009) ………………………………………………………..8
Kelly v. Rio Grande Computerland Grp., 128 S.W.3d 759 (Tex.App.-El Paso 2004, no pet.). ……………………………..15
Kennedy Ship & Repair, L.P. v. Pham, 210 S.W.3d 11 (Tex.App.-Houston [14th Dist.] 2006, no pet.). …………………11
Meek v. Bishop Peterson & Sharp, P.C., 919 S.W.2d 805 (Tex.App.-Houston [14th Dist.] 1996, writ denied). ……………9
Municipal Admin. Servs. V. City of Beaumont, 969 S.W.2d 31 (Tex.App.-Texarkana 1998, no pet.) …………………………….12
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). …………………………………...14, 17, 19
-4- Valencia v. Garza, 765 S.W.2d 893 (Tex. App.-San Antonio 1989, no writ). ……………………….12
Rules and Statutes
RESTATEMENT (SECOND) OF CONTRACTS § 41 (1981) comment b …………….12
TRCP 166a(c) .....…………………..……………………………………………………16
TRCP 166(a)(i) ..….……………………………………………………………………..16
STATEMENT OF THE CASE
Nature of the Case: Appellant/Plaintiff Kamisha Davis filed suit on or about April 16, 2013 against Appellee/Defendant Texas Farm Bureau Insurance seeking damages including, but not limited to, payment of a previously accepted settlement offer and interest, as well as attorney’s fees. (CR 4-8) More specifically, Ms. Davis was injured in an accident caused by Jeremy Thomas, Appellee/Defendant’s insured that occurred on August 26, 2009. (CR 58) On June 10, 2011, Appellee/Defendant offered Appellant/Plaintiff $12,000.00 to settle the matter. Plaintiff/Appellant accepted the offer on April 13, 2012. (CR 59) The offer made by Appellee/Defendant did not have a designated time period, nor did it have an expiration date. Appellee/Defendant never revoked the offer. ............................................................... ………………………
Trial Court: The Honorable Al Bennett, 61st Judicial District Court, Harris
County, Texas
Trial Court’s Disposition: Final Judgment in favor of Defendant.
-5- Relevant Procedural Background
Plaintiff filed her Original Petition and Request for Disclosure on April 16, 2013.
(CR 4-8) Appellee/Defendant Texas Farm Bureau Insurance filed their Original Answer
on or about July 25, 2013. (CR 16-19) Appellee/Defendant filed a Traditional and No-
Evidence Motions for Summary Judgment on or about April 15, 2014. (CR 20-49)
Appellant/Plaintiff timely filed a response to same on May 9, 2014. (CR 50-60) After a
hearing on Defendant’s Motions for Summary Judgment was held on May 23, 2014, an
Order was signed on June 6, 2014 in favor of Defendant. (CR 65) Plaintiff timely filed
her Motion for New Trial on July 3, 2014. (CR 66-92) Defendant filed their Response to
the Motion for New Trial on July 9, 2014. (CR 93-97) Plaintiff’s Motion for New Trial
was set for submission on July 14, 2014. (CR 92) The trial court denied Plaintiff’s
Motion for New Trial on August 11, 2014. (CR 98) Plaintiff filed her Notice of Appeal
on August 14, 2014. (CR 102-103)
ISSUES PRESENTED
1. Did the trial court commit reversible error when it granted Defendant/Appellee’s
motion for summary judgment?
a. Claiming there was neither a material fact issue nor more than a mere
scintilla of evidence that Appellee breached an agreement.
b. Claiming there was neither a material fact issue nor more than a mere
scintilla of evidence that Appellee is liable to Appellant under the theory of
promissory estoppel.
-6- STATEMENT OF FACTS
To the Honorable Justices of the First Court of Appeals:
Plaintiff was hit by a vehicle owned by Jeremy Thomas, Defendant’s insured. (CR
5) Defendant made an offer on June 10, 2011, in an attempt to settle the case, in the
amount of $12,000.00. (CR 58) Defendant did not limit the offer to a certain time frame
in which Plaintiff had to accept. (Id.) Additionally, Defendant did not state that the offer
would expire. (Id.) Moreover, Defendant never revoked the offer. The Defendant
believed the offer was still good and open for acceptance even after a Stowers demand
had been tendered. (CR 57)
On April 13, 2012, Plaintiff accepted Defendant’s offer to settle the case for
$12,000.00. (CR 59) Then, Defendant denied the offer on April 20, 2012, claiming that
the offer had expired on the expiration of limitations of the underlying incident – not
because of any other rejection, expiration of the offer, or any other legal theory (such as
that which Appellee now claims that the offer ended by virtue of a Stowers demand). (CR
57) Plaintiff relied on the representations made by Defendant, which was an open ended
offer to settle her case for $12,000.00. (CR 59) Defendant never revoked the offer to
Plaintiff until after Plaintiff accepted the offer. (CR 57) Defendant has failed to make the
offer of settlement good; Plaintiff relied on Defendant’s promise to Plaintiff’s detriment.
SUMMARY OF THE ARGUMENT
First, the trial court erred when it granted Appellee’s motion for summary
judgment as to Appellant’s breach of contract, as there are fact issues and more than a
-7- mere scintilla of evidence that there was an offer and an acceptance, the most basic
principles of contract law.
Second, the trial court erred when it granted Appellee’s motion for summary
judgment as to Appellant’s promissory estoppel claims, as there are fact issues and more
than a mere scintilla of evidence that there was a promise, foreseeability of reliance by
the Appellee promisor, and substantial reliance on the promise to Appellant’s detriment.
Accordingly, Appellant moves this Court to remand this case to the trial court for
a trial on the issues.
ARGUMENT
Standard of Review
A grant of summary judgment is reviewed de novo. Tex. Mun. Power Agency v.
Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007). Ferguson v. Building
Materials Corp. of America, No. 08-0589 (Tex. Jul. 3, 2009)(per curiam) (judicial
estoppel based on bankruptcy proceeding held inapplicable.)
A fact issue and more than a mere scintilla of evidence exists regarding whether or not Appellee breached its contract with Appellant.
1. As to the breach of contract issue, the Court will see that the most basic
elements of breach of contract exist. There was a promise by Appellee (CR 58) to pay
Appellant $12,000.00 to extinguish the claims against Appellee’s insured. Furthermore,
there was an acceptance of that offer. (CR 59) Appellee’s explanation for not honoring
the offer of settlement is that a Stowers demand acted as a counter-offer and rejection of
-8- the $12,000.00 settlement and that Appellant’s acceptance of the offer was not made in a
reasonable period of time. (CR 63)
2. Whether a Defendant breached a contract is a question of law for the court.
DeSantis v. Wackenhut Corp., 732 S.W.2d 29, 34 (Tex. App.-Houston [14th Dist.] 1987)
rev’d in part on other grounds, 793 S.W.2d 670 (Tex.1990); See B&W Sup. V. Beckman,
305 S.W.3d 10, 16 (Tex. App.-Houston [1st Dist.] 2009, pet. denied). However, if there
is a dispute concerning the failure of a party to comply with the contract, the court
should submit the disputed fact question to the jury. Meek v. Bishop Peterson &
Sharp, P.C., 919 S.W.2d 805, 808 (Tex. App.-Houston [14th Dist.] 1996, writ denied).
3. Appellant believes a timeline of the relevant events will be beneficial for
the Court to understand the issues.
August 26, 2009 – Motor Vehicle accident between Appellant and Appellee’s
insured. (CR 57, 58)
June 10, 2011 – Offer was made by Appellee to settle the claims for $12,000.00
(CR 58)
July 28, 2011 – Stowers Demand was tendered to Appellee by Appellant’s
previous counsel prior to lawsuit being filed. (CR 46)
August 25, 2011 – Statute of limitations expires as to underlying claim. (CR 57,
58)
April 13, 2012 – Offer of settlement accepted by Appellant’s counsel. (CR 59)
April 20, 2012 – Letter sent by Appellee claiming offer expired on the expiration
of limitations. (CR 57)
-9- 4. While normally a counteroffer (including a Stowers demand) could be
construed as a rejection of an offer, this Court will see that was not the intention of the
parties. As this Court well knows, to form a binding contract, the parties must have
mutual assent, or a “meeting of the minds,” on the essential terms of a contract. David J.
Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex.2008). Meeting of the minds refers to
the parties’ mutual understanding of an assent to the subject matter and essential terms of
the contract. City of the Colony v. North Tex. Mun. Water Dist., 272 S.W.3d 699, 720
(Tex. App.-Fort Worth 2009, pet. dism’d). In this case, the essential term of the contract
is the date the offer expired, if ever.
5. While Appellee has hinged its entire argument on the claim that the offer
was rejected when the Stowers demand was made, this Court will see that is not what the
parties’ conduct proves. Appellant reminds the Court that in determining whether the
parties had a meeting of the minds is an objective determination based on the parties’
statements and actions, not on their subjective state of mind. DeClaire v. G&B
McIntosh F.L.P., 260 S.W.3d 34, 44 (Tex. App.-Houston [1st Dist.] 2008, no pet.)
6. In this case, the Court can easily determine the Appellee did not take the
Stowers demand as a rejection of the $12,000.00 offer and to the extent it claims
Appellee did, Appellee’s offer was re-offered even after the Stowers demand was made
based on Appellee’s own statements. This is verified by the correspondence sent to
Appellant after she attempted to accept the offer and states the following:
This will acknowledge receipt of your letter dated April 13, 2012 on the above named client. Our offer expired on the two year anniversary from the date of accident 8-26-2009;
-10- therefore, we are respectfully declining your client’s claim. (CR 57)
7. As the Court will see, the Appellee’s statements and actions (as discussed
in DeClaire) clearly and unequivocally show that the offer was open to acceptance,
though the Stowers demand had been made nine months earlier. In fact, Appellee’s sole
justification for denying the viability of the acceptance was not that the offer had been
previously rejected by virtue of the Stowers demand – but that limitations had expired.
More importantly, the correspondence specifically proves that the offer was open (thus
not viewed as rejected) by stating that the offer was still available to the end of the two
year statute: almost an entire month after the Stowers demand was made.
8. So, as much as Appellee claims the Stowers was a rejection of its
$12,000.00 offer, their statements and actions prove that either the Stowers demand was
not considered a rejection by the Appellee or to the extent it was, the offer was re-opened
and made to Appellant even after the Stowers was tendered.
9. It bears noting that the “expires at limitations” clause was never mentioned
to Appellant in writing or verbally.
10. Appellee’s secondary explanation for not making good on the offer of
settlement was that the acceptance of the offer was not made in a reasonable time. As the
Court will see, the law does not support this position.
11. Generally, time is not of the essence in a contract. Kennedy Ship & Repair,
L.P. v. Pham, 210 S.W.3d 11, 19 (Tex. App.-Houston [14th Dist.] 2006, no pet.). Any
intention to make time of the essence must be clear from the contract as a whole.
-11- Municipal Admin. Servs. V. City of Beaumont, 969 S.W.2d 31, 36 (Tex. App.-Texarkana
1998, no pet.)
12. As the Court will see, the offer to settle did not have an expiration date nor
did it state that “time is of the essence”. The letter in its entirety reads as follows:
This will acknowledge receipt of your letter dated June 9, 2011, wherein you made a demand of $22,500.00 to settle your client’s claim. After careful review and evaluation of the information you have submitted, we believe this claim has a value of $12,000.00. Please inform us of your client’s response. Sincerely, … (CR 58)
13. As the Court can see, there is no expiration date nor is there a mention that
the offer will expire on the expiration of limitations as was claimed later. There is not
even a request for Appellant to let Appellee “know as soon as possible”. While an offer
may expire after a reasonable time, what is reasonable time is a fact question, depending
on all the circumstances existing when the offer and attempted acceptance were made.
Some factors to be considered are: the nature of the proposed contract; the purposes of
the parties; and the course of dealing between them. See Valencia v. Garza, 765 S.W.2d
893, 897 citing RESTATEMENT (SECOND) OF CONTRACTS § 41 (1981) comment
b. So, to the extent Movant argues the offer expired, this issue is a question of fact and
not summary judgment fodder.
14. Finally, Appellee’s arguments regarding the expiration of the offer conflict
with one another and the disingenuous nature of Appellee’s claims become clear. As was
stated initially by Appellee’s representative, the offer was revoked by virtue of an
-12- expiration of limitations. There was no mention of the Stowers demand acting as a
rejection and in fact, it is clear the acceptance would have been accepted despite the
Stowers demand, so long as it was made prior to the expiration of limitations.
15. Later, once legal counsel became involved, a tactical decision was made by
Appellee to claim that the offer expired by virtue of the Stowers demand acting as a
rejection. As the Court can see by the correspondence cited supra, this was not the
Appellee’s real position or belief, but an attempt to recast the facts. Furthermore,
Appellee now conveniently argues that to the extent it was an acceptance, nine months is
too long of a time and thus the acceptance was not made in a reasonable amount of time.
16. This “reasonable amount of time” argument also fails with only the
slightest scrutiny. As is shown by Appellee’s correspondence, its offer to settle remained
open until expirations expired. Under this belief, if an offer to settle was made only one
month after an accident occurred, the offer would be open for twenty three months –
according to Appellee’s correspondence. In that light, nine months (as in the instant case)
– less than half of that available of an offer made one month after a collision, is not
unreasonable at all.
17. As the Court can see, the inconsistencies of Appellee’s arguments are
glaring. What becomes abundantly clear is that the only intent by Appellee to withdraw
the offer was not by virtue of the Stowers demand or not to leave it open for only a
reasonable time of something less than nine months. What the Appellee intended to do
was to make an offer that expired upon the expiration of limitations. Unfortunately, for
Appellee and its settlement offer, it failed to state there was a deadline and it failed to
-13- even state generically that “time was of the essence”. Appellee’s counsel’s argument after
the fact cannot withstand the slightest scrutiny and the fact Appellee is attempting an
about-face now is telling as to what their intent was then.
18. Appellant reminds the Court that in determining whether the parties had a
meeting of the minds regarding the terms of an agreement is an objective determination
based on the parties’ statements and actions, not on their subjective state of mind.
DeClaire v. G&B McIntosh F.L.P., 260 S.W.3d 34, 44 (Tex. App.-Houston [1st Dist.]
2008, no pet.) Nor is it based on their attorney’s tactical decisions in an effort to avoid
liability after the fact. Clearly, every reasonable inference was not indulged in favor of
the non-movant as Texas caselaw has long held. See, e.g., Nixon v. Mr. Prop. Mgmt. Co.,
690 S.W.2d 546, 548–49 (Tex. 1985).
A fact issue and more than a mere scintilla of evidence exists regarding whether or
not Appellee is liable under the theory of promissory estoppel.
19. Though it is clear that more than a mere scintilla of evidence and a fact
issue preclude summary judgment on Appellant’s breach of contract claims, dismissal of
Appellant’s claims based on promissory estoppel is also without support.
20. In the unlikely event this Court believes that there is not adequate evidence
or the existence of a material fact to preclude summary judgment on the breach of
contract claims, dismissal of Plaintiff’s claims under the theory of promissory estoppel
are clearly not in order.
21. In fact, a Plaintiff can bring a claim for promissory estoppel to enforce a
promise when some of the elements necessary to create a legal contract are missing. See
-14- Kelly v. Rio Grande Computerland Grp., 128 S.W.3d 759, 769 (Tex. App.-El Paso 2004,
no pet.).
22. The elements of promissory estoppel are (1) The Defendant made a promise
to Plaintiff; (2) The Plaintiff reasonably and substantially relied on the promise to its
detriment; (3) The Plaintiff’s reliance was foreseeable by the Defendant; and, (4)
Injustice can be avoided only by enforcing the Defendant’s promise. Collins v. Walker,
341 S.W.3d 579, 573-74 (Tex. App.-Houston [14th Dist.] 2011, no pet.) As the Court can
see, whether or not a counter-offer was a rejection or whether or not the acceptance of the
offer was made timely is not a requirement to recover under promissory estoppel.
23. Appellee has never argued that an offer to settle (the underlying promise)
was not made. In fact, the promise is properly before the Court in that in exchange to
settle Appellant’s claims, she would be given $12,000.00. (CR 58)
24. There is no question that Appellant relied on the promise to settle her case
for $12,000.00. Limitations had run in this matter at the time the offer was accepted, so
the settlement offer was Appellant’s sole opportunity for recovery. Appellee has never
argued that the promise to settle the case was not relied on by the Appellant.
25. Next, the reliance to settle the case for $12,000.00 was foreseeable. It was
not an offer that was unforeseeable. It was a nominal offer to settle a case by an insured’s
carrier to Appellant who was injured as a result of the negligence of the insured. The
amount of the settlement was not so ridiculous as to render the likely reliance on the offer
unforeseeable and the fact that the offer came from the insured’s carrier also made
reliance foreseeable.
-15- 26. Finally, enforcing the promise to settle the case is the only way in which an
injustice can be avoided. As stated above, limitations in this matter has run. The only
opportunity Appellant has to recover for the damages she suffered as a result of its
insured’s negligence is if Appellee is forced to tender the settlement amount that was
offered.
27. First, summary judgment on the issue of promissory estoppel was barely
urged by the Appellee. In fact, to the extent it was, it was done so contrary to Texas case
law.
28. Appellee’s sole mention of summary judgment based on promissory
estoppel is as follows:
To prevail on a claim of promissory estoppel, Plaintiff must establish “(1) a promise, (2) foreseeability of reliance thereon by the promisor, and (substantial reliance by the promise to his detriment.” English v. Fischer, 600 S.W.2d 521, 524 9Tex. 1983); Miller v. Raytheon Aircraft Co., 229 S.W.3d 358, 378-79 (Tex. App.-Houston [1st Dist.] 2007 no pet.). Because Plaintiff cannot establish any of these elements, Plaintiff’s promissory estoppel claim against Texas Farm Bureau should be dismissed. (CR 26)
29. This is the entirety of Appellee’s argument for summary judgment as to
Appellant’s promissory estoppel claims and there is no specific identification as to which
elements are lacking.
30. When a no-evidence motion for summary judgment does not challenge the
specific elements, it should be treated as a traditional motion for summary judgment
under TRCP 166a(c), which imposes the burden on the movant, not as a motion under
TRCP 166(a)(i), which imposes the burden on the non-movant. See Weaver v. Highlands
-16- Ins. Co., 4 S.W.3d 816, 819 (Tex. App.-Corpus Christi 2002, no pet.) More importantly,
the motion cannot be conclusory or generally allege that there is no evidence to
support the non-movant’s claim or defense. Timpte Indus. V. Gish, 286 S.W.3d 306,
310 (Tex.2009).
31. Appellee’s motion regarding Plaintiff’s claims for relief via promissory
estoppel contains no analysis, no facts and no caselaw supporting its position, and
Appellee makes no cogent arguments justifying why summary judgment should be
granted. In fact, the motions do nothing more than generally allege there is no
evidence of promissory estoppel that Timpte Indus, Inc. specifically precludes. In
other words, a party cannot simply roll out a motion for summary judgment by reciting
the elements, then requiring the Court to do the heavy lifting for them. Appellee did not
sustain its burden as is required to obtain a no-evidence summary judgment.
32. Accordingly, the summary judgment regarding promissory estoppel was
not pled with facts sufficient for it to be granted. To the extent it was considered, a proper
analysis was clearly withheld. Clearly, every reasonable inference was not indulged in
favor of the non-movant as Texas caselaw has long held. See, e.g., Nixon v. Mr. Prop.
Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). The trial court’s judgment must be
reversed.
Conclusion
33. So, clearly there is more than a mere scintilla of evidence and fact issues
that preclude summary judgment on Appellee’s motions for summary judgment regarding
Appellant’s breach of contract claims. Fact issues abound and the arguments urged by
-17- Appellee’s counsel do not trump statements made by their client regarding how they
concluded the offer of settlement was withdrawn. Their claim that the offer was
withdrawn by virtue of limitations (a position they never advanced until after the offer
was accepted) is evidence that their belief was that the offer was open even after the
Stowers demand and is telling as to their mindset.
34. Appellant reminds the Court that caselaw holds it is the statements and
actions by a party – not their subjective belief, that determine the terms of the agreement.
Clearly, neither Appellant nor Appellee believed and acted as though the Stowers demand
was a rejection. To the extent the law suggests otherwise, in circumstances where the
parties are silent, there was no silence here. The only mechanism by which Appellee
believed its offer was revoked was by virtue of the expiration of limitations, and this can
be no clearer.
35. As to the issue of whether or not the offer was accepted in a reasonable
time, this is clearly a fact issue for the jury and not an issue to be decided by summary
judgment. The gap between when the offer was made and accepted is approximately nine
months and not nine years. In fact, based on the correspondence of the Appellee stating
that an offer was open until the expiration of limitations, an offer could be open for over
twenty months (assuming an offer was made soon after the accident that forms the basis
of the lawsuit), so long as it was accepted prior to the expiration of limitations.
Considering the expiration of limitations assertion by Appellee, the acceptance of an
offer only nine months latter does not seem unreasonable at all, contrary to what
Appellee argued to the trial court.
-18- 36. Finally, Appellee’s summary judgment regarding promissory estoppel is
flawed procedurally and substantively. Procedurally, general comments do not a proper
no evidence summary judgment make. Substantively, the equitable cause of action should
not have been dismissed given the facts and circumstances regarding this case. Clearly,
there was reliance by Appellant on Appellee’s promise to settle the case for $12,000.00.
With limitations now expired, justice can only be avoided by enforcing the offer to settle
that contained no deadline for acceptance nor any clause that required acceptance prior to
the expiration of limitations.
37. The standard of review for a traditional summary judgment is well
established: (1) the movant for summary judgment has the burden of showing that no
genuine issue of material fact exists and that it is therefore entitled to summary judgment
as a matter of law; (2) in deciding whether there is a disputed material fact issue
precluding summary judgment, evidence favorable to the non-movant will be taken as
true; and (3) every reasonable inference must be indulged in favor of the non-movant and
any doubts resolved in the non-movant’s favor. See, e.g., Nixon v. Mr. Prop. Mgmt. Co.,
690 S.W.2d 546, 548–49 (Tex. 1985). Clearly, every reasonable inference was not
indulged in favor of the non-movant as Texas caselaw has long held.
Prayer
For these reasons Appellant, moves this Court to reverse the trial court’s summary
judgment and remand the case for a trial on the merits.
Respectfully submitted:
MESTEMAKER, STRAUB & ZUMWALT
-19- /s/ David K. Mestemaker By:________________________________ David K. Mestemaker dkm@msandz.com TBN 13974600 FBN 14410 3100 Timmons Lane, Suite 455 Houston, Texas 77027 (713) 626-8900 Telephone (713) 626-8910 Telecopier
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was served on:
Louis Layrisson III louie.layrisson@bakerbotts.com Baker Botts L.L.P. One Shell Plaza 910 Louisiana St. Houston, Texas 77002-4995
In compliance with Rule 9.5 of the Texas Rules of Appellate Procedure, on this th 29 day of January, 2015.
/s/ David K. Mestemaker ______________________ David K. Mestemaker
-20-