R.E. Cardenas aka Ricardo Evaristo, Cardenas aka Rick Cardenas, Appellant, v. Nancy Crockett, Appellee. (2016)

MEMORANDUM OPINION

Appellant Rick Cardenas sued appellee Nancy Crockett, alleging that she breached a contract to sell to him certain real property located in Cameron County.  The trial court rendered summary judgment in favor of Crockett.  Cardenas asserts by one issue on appeal that the trial court erred in doing so gbecause there was insufficient evidence to support summary judgment.h We affirm.

I. Background

This case involves Crockettfs offer to sell to Cardenas 7.367 acres of real property located in Harlingen, Texas.  On March 5, 2014, Crockettfs attorney delivered a proposed gUnimproved Property Contracth (the gofferh or goriginal offerh) to Cardenasfs attorney.  Under the offer, Cardenas would purchase the property for $946,674, comprising $160,934 in cash with the remainder financed by Crockett, and the closing would occur on or before June 1, 2014.  The offer stated that, upon execution of the contract by all parties, Cardenas would make a $5,000 earnest money deposit to an escrow agent.  Further, the offer included a provision allowing Cardenas to terminate the contract within sixty days of the effective date of the contract, provided that he pay a $5,000 option fee directly to Crockett within two days of the effective date.  Finally, the offer stated that it gexpires on March 7, 2014 at 5:00 p.m. if not accepted prior to that time.h ¹

After receiving the offer, Cardenasfs attorney emailed Crockettfs attorney stating that he was gworking on a redline version of the contract at presenth and asking whether the offer termination date of March 7, 2014 was negotiable.  According to Crockett, Cardenasfs attorney attached a revised gredlineh version of the offer to his March 5 email which contained several modifications, including extending the closing date to gwithin 120 days of the Effective Date of this Contract,h removing the termination option, and allowing Cardenas to extend the closing date for two additional thirty-day periods upon payment of a $2,000 fee for each extension.  The following day, March 6, 2014, Crockettfs attorney emailed Cardenasfs attorney stating that Crockett was ghappy to extend the deadlineh to March 12, 2014.

On March 10, 2014, Cardenasfs attorney emailed Crockettfs attorney a gProposed Counter–Offerh with terms identical to those contained in the earlier gredlineh version of the offer.  In the email, Cardenasfs attorney asked Crockettfs attorney to greview [the] Proposed New Contract with Ms. Crockett and let me know her comments and/or concerns.h

On March 12, 2014, Cardenasfs attorney emailed Crockettfs attorney asking whether Crockett had accepted the proposed changes to the contract.  The email noted that Cardenas gis becoming concerned about the potential purchase due to the fact that Ms. Crockettfs extension of the deadline expires today.h Crockettfs attorney replied that he had forwarded the proposal to Crockett and was awaiting her response.

Later that day, in an attempt to accept Crockettfs original March 5 offer, Cardenas delivered the fully executed contract, signed by both parties, along with the $5,000 earnest money payment to the escrow agent.  The contract, as provided to the escrow agent, stated that it was executed by Cardenas on March 7. Cardenas also tendered the $5,000 option fee to Crockettfs attorney, but Crockettfs attorney rejected the tender on the basis that Cardenas had made a counteroffer which served as a rejection and termination of the original March 5 offer.  The checks for both the earnest money and option fee payments were dated March 7.

This lawsuit ensued.  In his live petition, Cardenas contends in part that g [o]n March 12, 2014 when [he] signed the contract that [Crockett] had tendered to him and paid the Earnest Money a valid and enforceable contract was formed.h He argued that Crockettfs failure to sell him the property was a breach of that contract, and he requested specific performance and damages.

Crockett filed a traditional motion for summary judgment contending that there was no enforceable contract as a matter of law.  Attached to the motion were copies of the March 5 offer, the March 7 gredline,h the March 10 gProposed Counter–Offer,h and emails between the attorneys.  The motion also included an affidavit by Crockettfs attorney attesting to the authenticity of the exhibits and stating in part that gCrockett did not accept the Proposed Counter Offer, nor did she re-make her original offer after receiving the Proposed Counter Offer.h Cardenas filed a response with evidence including a copy of a check made out to Crockett for the $5,000 option fee.  Crockett filed a reply in support of the motion.  The trial court granted Crockettfs motion and this appeal followed.

II. Discussion

A. Standard of Review

We review summary judgments de novo.  Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex.2004).  We consider all the evidence in the light most favorable to the non-movant, indulging every reasonable inference in favor of the non-movant and resolving any doubts against the motion.  Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex.2007).  Because the trial courtfs order granting summary judgment does not specify the basis for the ruling, we must affirm the judgment if any of the theories advanced in the motion are meritorious.  W. I nvs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005).

In advancing a traditional motion for summary judgment, the movant has the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law.  Tex.R. Civ. P. 166a(c);  Joe, 145 S.W.3d at 157.  A defendant who conclusively negates at least one of the essential elements of a cause of action or conclusively establishes an affirmative defense is entitled to summary judgment.  Frost Nat f l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex.2010).  A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence.  City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.2005).  On the other hand, a fact issue is raised if there is more than a scintilla of probative evidence.  Neely v. Wilson, 418 S.W.3d 52, 59 (Tex.2013).  Evidence is more than a scintilla if it grises to a level that would enable reasonable and fair-minded people to differ in their conclusions.h Serv. Corp. Int f l v. Guerra, 348 S.W.3d 221, 228 (Tex.2011).  Evidence is less than a scintilla if it is gso weak as to do no more than create a mere surmise or suspicion that the fact exists.h Regal Fin. Co. v. Tex Star Motors, Inc., 355 S.W.3d 595, 603 (Tex.2010).

B. Analysis

In her summary judgment motion, Crockett argued that she had conclusively negated Cardenasfs allegation that a valid and enforceable contract existed.  See Sauceda v. GMAC Mortg.  Corp., 268 S.W.3d 135, 140 (Tex.App.–Corpus Christi 2008, no pet.) (gThe elements of a breach of contract action are:  (1) the existence of a valid contract;  (2) performance or tendered performance by the plaintiff;  (3) breach by the defendant;  and (4) damages sustained by the plaintiff as a result of the breach.h).  Specifically, she alleged that, by emailing the gredlineh contract on March 5 and the formal counteroffer on March 10, 2014, Cardenas rejected the original offer and his right to accept the original offer was terminated.  See Thurmond v. Wieser, 699 S.W.2d 680, 682 (Tex.App.–Waco 1985, no writ) (gAn offereefs 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.h) (citing Restatement (Second) of Contracts 39(2) (1981));  see also Garrod Invs., Inc. v. Schlegel, 139 S.W.3d 759, 764–65 (Tex.App.–Corpus Christi 2004, no pet.) (noting that g[a]ny material change in a proposed contract constitutes a counterofferh and that g[t]he closing date of a contract for the sale of real estate is a material termh).  Crockett further noted that there was gno separate considerationh given in exchange for her promise, made on March 6, 2014, to extend the deadline for acceptance until March 12.

In his response to the summary judgment motion, Cardenas argued only that the gProposed Counter–Offerh sent by his attorney to Crockettfs attorney on March 10 was not actually a counteroffer because it did not gfulfill the requirements of an original offer.h In particular, he urged that, because the document did not contain Cardenasfs signature, it could not have been accepted by Crockett.  See Restatement (Second) of Contracts 39 cmt. a (gA counter-offer must be capable of being accepted ․h).  According to Cardenasfs summary judgment response, because he accepted Crockettfs original offer gwithin the period that the offer remained open, namely before 5:00 p.m. on March 12, 2014,h and because Crockett never withdrew the offer, there is at least an issue of material fact as to whether an enforceable contract existed.

On appeal, Cardenas makes two different arguments:  (1) Crockett gfailed to conclusively establish no consideration for her promise to hold her offer open until March 7, 2014h and (2) Crockett gfailed to conclusively establish no consideration for her promise to hold her offer open until March 12, 2014.h As to the first argument, Cardenas notes that Crockettfs summary judgment motion gdoes not assert that Cardenasf power of acceptance terminated anytime before March 10, 2014h and he argues that, therefore, gthe contract was accepted and became effective when Cardenas signed it on March 7, 2014.h However, as noted, Crockettfs summary judgment motion included evidence that Cardenas made a counteroffer, thereby terminating his right to accept the original offer, by sending the gredlineh version of the offer to Crockettfs attorney on March 5. In any event, Cardenas did not argue in his response to the motion that the contract was enforceable because it was fully executed on March 7 prior to any counteroffers being made;  instead, he argued only that no counteroffer had ever been made and therefore his March 12 acceptance was valid.²  Accordingly, we may not reverse the summary judgment on this basis.  See Tex.R. Civ. P. 166a(c) (gIssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.h).³

As to Cardenasfs second argument, he argues that Crockett failed to produce any evidence showing that there was no consideration for her promise to hold her offer open until March 12, 2014.  Therefore, he contends, there is at least a fact issue as to whether his counteroffer served to terminate his right to accept the original offer.  See Thurmond, 699 S.W.2d at 682 (noting that the making of a counteroffer will not terminate the original offer if gthe offeror has manifested a contrary intentionh).⁴  Again, Cardenas did not make this argument in his summary judgment response;  instead, he argued only that he never made a counteroffer to Crockett and Crockett never withdrew the offer.  Therefore, we may not reverse the summary judgment on these grounds.  See Tex.R. Civ. P. 166a(c).  We overrule Cardenasfs issue.

III. Conclusion

For the foregoing reasons, the trial courtfs judgment is affirmed.

FOOTNOTES

1.   The parties appear to agree that the original offer sent to Cardenasfs attorney on March 5 was signed by Crockett.  However, the version of the offer which she attached to her summary judgment motion, purporting to be the offer sent on March 5, does not contain her signature.

2.   As Crockett notes on appeal, Cardenas unequivocally stated in his original petition that he signed the offer on March 12, 2014.  Crockett was therefore under no burden to conclusively establish that the contract was not fully executed before that date.  See Smith KIine Beecham Corp. v. Doe, 903 S.W.2d 347, 355 (Tex.1995) (gA defendant need not ․ show that the plaintiff cannot succeed on any theory conceivable in order to obtain summary judgment;  he is only required to meet the plaintiffs case as pleaded.h).

3.   We reject Cardenasfs argument, made in his reply brief, that this argument may be made for the first time on appeal because it is a gsufficiency of evidence challenge.h See Tex.R.App. P. 33.1(d) (gIn a nonjury case, a complaint regarding the legal or factual insufficiency of the evidence ․ may be made for the first time on appeal in the complaining partyfs brief.h).  Rather, Cardenasfs argument on appeal is that Crockett failed to conclusively establish her entitlement to judgment as a matter of law, and this is governed by Texas Rule of Civil Procedure 166a(c).  See Tex.R. Civ. P. 166a(c) (gIssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.h).

4.   Cardenas argues on appeal that Crockettfs original March 5 offer constituted an option contract, making the offer irrevocable during the period specified for acceptance.  See Restatement (Second) of Contracts 37 (1981) (g[T]he power of acceptance under an option contract is not terminated by rejection or counter-offer, by revocation, or by death or incapacity of the offeror, unless the requirements are met for the discharge of a contractual duty.h).  An option contract must meet the requirements for the formation of a contract;  in particular, it must be gin writing and signed by the offerorh and it must grecite[ ] a purported consideration for the making of the offer ․h 1464–Eight, Ltd. v. Joppich, 154 S.W.3d 101, 105–106 (Tex.2004) (citing Restatement (Second) of Contracts 25, 87(1)(a) (1981)).  Here, even assuming the March 5 offer was in writing and signed by Crockett, it does not recite any purported consideration for the making of the offer, and Cardenas produced no evidence that any such consideration was paid.  See id.  In any event, as noted, Cardenas did not argue in his summary judgment motion that the March 5 offer constituted an irrevocable option contract, so we may not reverse on those grounds.  See Tex.R. Civ. P. 166a(c).

Memorandum Opinion by Justice Garza