TRAVIS FRENCH, Appellant v. ERNEST HENSON, JR., Henson

REVERSED AND REMANDED; Opinion Filed June 4, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01036-CV
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TRAVIS FRENCH, Appellant
V.
ERNEST HENSON, JR., Henson
.............................................................
On Appeal from the 95th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 05-00363-D
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MEMORANDUM OPINION
Before Justices Richter, Francis, and Lang-Miers
Opinion By Justice Francis
        Travis French sued Ernest Henson, Jr. for damages sustained in a motor vehicle collision. Henson counterclaimed for breach of a presuit settlement agreement contending that French's hand- written offer to settle his claim was accepted by Henson's insurance adjustor.
        On cross-motions for summary judgment on the settlement issue, the trial court ruled in Henson's favor. In two issues, French contends the trial court erred in granting Henson's summary judgment motion and denying his. Concluding the summary judgment evidence raises a fact issue regarding the existence of an agreement, we reverse the trial court's judgment and remand for further proceedings.
        Both parties sought traditional summary judgment. See Tex. R. Civ. P. 166a(c). On each motion, the movant had the burden of showing no genuine issue of material fact exists and he was entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgm't Co., 690 S.W.2d 546, 548 (Tex. 1985). In reviewing the trial court's determination on each motion, we take as true evidence favorable to the nonmovant and resolve every inference in his favor. Id. at 548-49. We review all the evidence, determine all questions presented, and render the judgment the trial court should have rendered, or else remand if neither party met his burden. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000).
        Before filing suit, French wrote to Yanina Adams, an adjustor with Henson's insurance company, and offered to settle his traffic accident claim against Henson. On appeal, French's primary contention is that Henson rejected his offer by trying to impose additional terms and conditions on the settlement that did not mirror the terms of his offer. Specifically, French asserts he offered to settle for $20,000 payable only to him, offered to assume responsibility for all medical bills and subrogation interests, and offered an unconditional release to Henson. The material portion of French's letter reads:
Demand is hereby made that you pay to me the sum of $20,000 in exchange for which I will fully release all claims and causes of action which I have against your Insured and the Insured driver and will relieve your Insured, your Insured driver, and your company from any and all liability for hospital liens, medical liens, and other liens or claims arising out of this collision, as well as any subrogation interest held by any company. The demand is open until 5:00 p.m. on [F]riday, December 3, 2004, and if not accepted by then is automatically withdrawn without further notice.
        French argues Adams rejected the offer by issuing three settlement checks. The primary check, in the amount of $19,948, was payable to “Travis French and Marsha French, Individually, and as Husband & Wife” with the notation that it was in “Full and Final Settlement of all Liability and Claims Against [Henson and his insurer] arising from an automobile accident which occurred at or near Dallas County, Texas on October 18, 2003.” The second check was made payable to French and Pulmonary Labs Service in the amount of $100. The third check was payable to French and Methodist Medical Center in the amount of $202.
        Along with the checks, Adams forwarded to French a “Release Of All Claims” in which he would, in consideration for the sum of $20,250, release and indemnify Henson and his insurance agent from all claims of injury “by reason of an occurrence at or near Dallas, Texas on or about October 18, 2003.” French did not cash the checks or sign the release. Instead, he engaged an attorney and filed suit.
        French contends Henson rejected his offer as a matter of law by trying to impose additional terms and conditions on the settlement that did not mirror the terms of his offer. He offered to settle for $20,000 payable only to him, with an unconditional release for Henson, and satisfaction of all liens and subrogation interests. French argues Adams rejected the offer by issuing three checks: one check payable to both French and his wife in the amount of $19,948 and two additional checks payable to French and medical providers. Additionally, French contends the release tendered to him by the insurance adjuster was more comprehensive than he offered.
        To create an enforceable contract, the minds of the parties must meet with respect to the subject matter of the agreement and all its essential terms.         Weynand v. Weynand, 990 S.W.2d 843, 846 (Tex. App.-Dallas 1999, pet. denied). The acceptance must be identical with the offer. Gilbert v. Pettiette, 838 S.W.2d 890, 893 (Tex. App.-Houston [1st Dist.] 1992, no writ). An acceptance must not change the terms of an offer; if it does, the offer is rejected. United Concrete Pipe Corp. v. Spin-Line Co., 430 S.W.2d 360, 364 (Tex. 1968). A material change in a proposed contract constitutes a counteroffer, which must be accepted by the other party. Antonini v. Harris County Appraisal Dist., 999 S.W.2d 608, 611 (Tex. App.-Houston [14th Dist.] 1999, no pet).
        The summary judgment evidence reflects that French offered to settle his claim against Henson for $20,000. French testified that he and Adams did not discuss whether to include Marsha French as a payee on the primary settlement check; Adams could not recall specifically raising the issue with French, but she testified it was her customary practice to inform the settling party that the spouse's name would be included on the check. The evidence conflicts on whether the parties agreed that French or Henson would pay any outstanding medical bills and likewise conflicts as to an agreement on the language used by Adams on the check and in the written release.
        We conclude that adding Marsha French as a payee on the check, issuing checks to the medical providers, and including the release language on the checks, under the circumstances detailed, raises a genuine issue of material fact as to whether Henson accepted French's offer or made a counteroffer. Accordingly, the trial court erred in granting summary judgment to Henson.
        We reverse the trial court's judgment and remand to the trial court for further proceedings consistent with this opinion.
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
                                        
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