Opinion
NO. 01-21-00503-CV
02-02-2023
CHUBB LLOYDS INSURANCE COMPANY OF TEXAS (as Subrogee of Jeffrey and Mary Meyer), Appellant v. BUSTER & COGDELL BUILDERS, LLC and Newco Welding, Inc., Appellees
Lucy Forbes, Cynthia Tarle, Laurence Granite, Jon McNeely, Houston, for Appellee Buster & Cogdell Builders, LLC. Shawn Malcolm McCaskill, James Edward Johanns, Dallas, Cameron Davis Gray, Grand Prairie, for Appellant. Jon McNeely, Houston, for Appellee Newco Welding, Inc.
Lucy Forbes, Cynthia Tarle, Laurence Granite, Jon McNeely, Houston, for Appellee Buster & Cogdell Builders, LLC.
Shawn Malcolm McCaskill, James Edward Johanns, Dallas, Cameron Davis Gray, Grand Prairie, for Appellant.
Jon McNeely, Houston, for Appellee Newco Welding, Inc.
Panel consists of Justices Goodman, Hightower, and Guerra.
Gordon Goodman, Justice
Chubb Lloyds Insurance Company of Texas, as subrogee of Jeffrey and Mary Meyer, sued Buster & Cogdell Builders, LLC and Newco Welding, Inc., alleging these companies damaged the Meyers’ home during a home-expansion project. The trial court granted summary judgment in favor of the defendants on the ground that the construction contract they executed with the Meyers waived any right of subrogation, as allowed by the insurance contract between the Meyers and Chubb. Chubb appeals, contending that the construction contract is not valid and binding.
We affirm.
BACKGROUND
Introduction
Jeffrey and Mary Meyer, husband and wife, hired Buster & Cogdell to expand their home. Buster & Cogdell, in turn, hired Newco to perform some welding. After most of the home-expansion project was complete, Newco started a fire that damaged the Meyers’ home. Chubb, which insured the home, paid the Meyers almost $4 million on the resulting insurance claim. Chubb then sued Buster & Cogdell and Newco, alleging they were liable for damages caused by the fire.
Buster & Cogdell and Newco moved for summary judgment, contending that their affirmative defense of waiver defeated Chubb's right to recover. In their motions, they relied on two contractual provisions. In the insurance contract between the Meyers and Chubb, a provision entitled "Subrogation" states that "[a]n insured may waive in writing before a loss all rights of recovery against any person." The construction contract, in turn, provides that absent a contrary provision in a property-insurance policy, the property owner "waives all rights against" the contractor and any subcontractors "for damages caused by fire or other causes of loss to the extent covered by property insurance or other insurance."
Chubb, in turn, moved for partial summary judgment as to the defendants’ affirmative defense of waiver. Chubb did not dispute that the contract provisions would bar it from suing Buster & Cogdell and Newco if applicable. Chubb instead posited that the defendants and the Meyers never executed the construction contract and that its waiver provision is therefore not valid and binding. In particular, Chubb contended that none of the ostensible parties to the construction contract—Jeffrey, Mary, or a representative of Buster & Cogdell—signed the operative document. According to Chubb, the absence of signatures either conclusively shows there was no contract or creates a genuine issue of material fact as to whether there was one.
Hence, the question on appeal boils down to whether the construction contract is valid and binding. We now turn to the parties’ summary-judgment evidence.
Summary-Judgment Record
Jeffrey Meyer signed an affidavit in which he stated that Buster & Cogdell sent him two versions of the contract by e-mail. In the first e-mail, Buster & Cogdell sent him a version of the construction contract that had a signature block listing both Jeffrey and Mary as parties to the contract under a single signature line. In the second e-mail, sent several minutes after the first one, Buster & Cogdell asked Jeffrey to instead use the attached version of the contract, which had two separate signature lines, one for Jeffrey and another one for Mary.
In his affidavit, Jeffrey also stated that he signed the first version of the contract and returned it to Buster & Cogdell by e-mail, rather than the second version, which he did not recall signing. Jeffrey's e-mail, which he sent several days after Buster & Cogdell had circulated both versions of the contract, does not contain any text. Jeffrey copied Mary on this e-mail.
Consistent with Jeffrey's affidavit, the lone version of the construction contract in the record is the one with a single signature line he signed. The second version is not in evidence. But the sole evidence about its contents—the e-mail chain circulating it—indicates it is identical to the first version except for the change to the signature portion providing signature lines for both Jeffrey and Mary.
The contract is the Standard Form Agreement Between Owner and Contractor for residential construction projects created by the American Institute of Architects. Its first page is dated the same date as the day on which Jeffrey e-mailed it to Buster & Cogdell, and it states that the agreement is made between "Jeff & Mary Angela Meyer" and "Buster & Cogdell Builders." It states that these parties "agree as follows" and then enumerates multiple terms over several pages. Among these terms, the contract provides for a total contract sum of $364,285.75, and it requires the Meyers to pay ten percent of this price as a nonrefundable deposit "upon execution" of the contract, which is to be credited toward the contract sum when Buster & Cogdell begins the work. The contract also requires the Meyers to maintain insurance to protect against any kind of damage or loss to the property, and it waives any right against Buster & Cogdell or its subcontractors "for damages caused by fire or other causes of loss to the extent covered by property insurance," unless waiver is precluded by the Meyers’ property-insurance policy. In addition, the contract states that it contains the entire agreement between the parties, superseding prior negotiations.
The last page of the construction contract contains a single signature block for "Jeff & Mary Angela Meyer." Jeffrey signed the contract. There also is a signature block for Buster & Cogdell. That signature block is unsigned.
Though Jeffrey's e-mail sending the signed contract back to Buster & Cogdell contains no text, in the subject line Jeffrey wrote: "[W]ould you please countersign it and send back to me?" In his affidavit, Jeffrey stated that Buster & Cogdell did not sign and return a copy to him as he had requested.
Finally, in Jeffrey's affidavit, he stated that he did not have the legal authority to sign the contract on behalf of Mary and did not intend to do so. But the trial court struck this part of his affidavit as an improper legal conclusion, and Chubb has not challenged the trial court's evidentiary ruling on appeal.
Mary signed an affidavit too. Consistent with the construction contract in the record (the first version with a single signature line for the Meyers), she stated she did not sign it. Mary also stated that she neither meant to waive any subrogation rights nor gave Jeffrey the authority to do so on her behalf.
The record contains multiple checks made payable to Buster & Cogdell as payment for the home-expansion project. Mary issued three of these checks after Jeffrey signed the first version of the contract, including one for $36,428.58. That check states "10% deposit" in its memo line.
Numerous e-mails relating to the home-expansion project are also included in the summary-judgment record. Many of these e-mails are to or from Mary. For example, in an e-mail sent later on the same day that Jeffrey signed and returned the construction contract, Mary sent an e-mail informing Buster & Cogdell that no HOA-approval was necessary to proceed with the home-expansion project.
These e-mails show Mary communicated with Buster & Cogdell about multiple aspects of the home-expansion project while it was in progress, including the project specifications, materials used, and pricing and costs. In one e-mail, Mary approved a change order for certain carpentry work. The construction contract contains a specific provision relating to and requiring change orders when revisions to the original scope of work outlined in the contract are made.
Finally, the Meyers’ home-insurance policy with Chubb is in evidence. The policy has the following provision: "Subrogation. An insured may waive in writing before a loss all rights of recovery against any person."
Trial Court's Judgment
Based on the summary-judgment motions, responses, and replies, as well as the arguments presented by the parties’ lawyers, the trial court concluded that the defendants’ affirmative defense of waiver was meritorious. Accordingly, the trial court granted the defendants’ summary-judgment motions and denied Chubb's.
DISCUSSION
The parties’ dispute about whether the Meyers waived Chubb's subrogation rights turns on whether the Meyers executed a binding contract with Buster & Cogdell containing the waiver provision. Chubb argues that the Meyers and Buster & Cogdell did not mutually assent to the same contract, as evidenced by Jeffrey's signing of a version that Buster & Cogdell had already withdrawn, Mary's failure to sign either of the two versions Buster & Cogdell circulated for signature, and Buster & Cogdell's failure to sign either version of the contract. Chubb maintains that these circumstances either conclusively prove lack of mutual assent or create a genuine issue of material fact as to whether there was mutual assent. Either way, Chubb asserts, the trial court erred in granting summary judgment for the defendants.
Buster & Cogdell and Newco argue that the construction contract need not be signed to be binding. They maintain that both versions of the construction contract were the same but for their signature blocks—one provided for one of the Meyers to sign and the other provided for both to sign—and the parties demonstrated their mutual assent to the terms of the contract, including its waiver provision, by performing under the contract until the fire halted the project. Thus, Buster & Cogdell and Newco say the trial court did not err in granting summary judgment.
Standard of Review
Buster & Cogdell and Newco moved for traditional summary judgment on Chubb's claims based on the affirmative defense of waiver. Chubb moved for traditional summary judgment with respect to this affirmative defense as well.
We review summary judgments de novo. Concho Res. v. Ellison , 627 S.W.3d 226, 233 (Tex. 2021). When, as here, both sides move for summary judgment and the trial court grants one motion and denies the other, we consider the summary-judgment evidence and render the judgment the trial court should have rendered. Id.
To prevail on a motion for traditional summary judgment, the movant must show that no genuine issue of material fact exists and it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c) ; Rosetta Res. Operating v. Martin , 645 S.W.3d 212, 218 (Tex. 2022). When both sides move for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law. Perryman v. Spartan Tex. Six Cap. Partners , 546 S.W.3d 110, 116 (Tex. 2018).
We accept as true all evidence favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in its favor. Energen Res. Corp. v. Wallace , 642 S.W.3d 502, 509 (Tex. 2022). The nonmovant has no burden to respond unless the movant conclusively establishes its claim or defense. Id.
Applicable Law
Insurers may have contractual or equitable subrogation rights. Mid-Continent Ins. Co. v. Liberty Mut. Ins. Co. , 236 S.W.3d 765, 774 (Tex. 2007). Either way, subrogation allows an insurer who pays an insured to recover that payment from the party that caused the covered loss. Concierge Nursing Ctrs. v. Antex Roofing , 433 S.W.3d 37, 44–45 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). But the insurer effectively steps into the shoes of its insured. Mid-Continent Ins. Co. , 236 S.W.3d at 774. Thus, the insurer's subrogation rights are subject to any defense that may bar the insured from recovering from the party who caused the loss. Id.
Subrogation rights may be waived by contract. New Hampshire Ins. Co. v. Mora , 500 S.W.3d 132, 137 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). The purpose of a contractual waiver of subrogation rights is to avoid lawsuits over claims for damages while also protecting the parties by in effect requiring one of the parties to the contract to provide insurance for all the parties. Reliance Ins. Co. v. Hibdon , 333 S.W.3d 364, 371 (Tex. App.—Houston [14th Dist.] 2011, pet. denied).
Contracts require mutual assent to be enforceable. Baylor Univ. v. Sonnichsen , 221 S.W.3d 632, 635 (Tex. 2007) (per curiam). Mutual assent exists when the parties agree to the same thing, in the same sense, and at the same time. CRSS Inc. v. Runion , 992 S.W.2d 1, 4 (Tex. App.—Houston [1st Dist.] 1995, writ denied). In other words, the acceptance must conform to the offer made to result in a binding contract. Id.
Signatures are often evidence of the mutual assent required for an enforceable contract. Phillips v. Carlton Energy Grp. , 475 S.W.3d 265, 277 (Tex. 2015). Hence, whether a written contract is signed is relevant to a determination of whether the parties intended to be bound by the contract. N.Y. Party Shuttle v. Bilello , 414 S.W.3d 206, 214 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). But a contract need not be signed by the parties to be executed, and hence binding, unless the parties explicitly require signatures as a condition of their mutual assent. Mid-Continent Cas. Co. v. Global Enercom Mngt. , 323 S.W.3d 151, 157 (Tex. 2010) (per curiam).
Mutual assent is often referred to as the meeting of the minds. E.g., Izen v. Comm'n for Lawyer Disc. , 322 S.W.3d 308, 318 (Tex. App.—Houston [1st Dist.] 2010, pet. denied.) ; Potcinske v. McDonald Prop. Invs. , 245 S.W.3d 526, 530 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Whether mutual assent exists as to a contract's subject matter and essential terms is an objective inquiry, turning on what the parties said and did, not on their subjective states of mind. Angelou v. African Overseas Union , 33 S.W.3d 269, 278 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Unexpressed subjective intent is irrelevant. Id. We look to the communications between the parties and to their actions and the surrounding circumstances. Id.
A party can manifest its assent by conduct, provided it intends to engage in the conduct and knows or has reason to know that the other party may infer from its conducts that it assents. RESTATEMENT (SECOND) OF CONTRACTS § 19(2) (1981) ; BPX Operating Co. v. Strickhausen , 629 S.W.3d 189, 202 (Tex. 2021). So, for example, a party can manifest its assent to a contract by beginning the performance the contract requires of the party. Mid-Continent Cas. Co. , 323 S.W.3d at 157 ; see also RESTATEMENT (SECOND) OF CONTRACTS § 18 (1981) (manifestation of mutual assent requires each party either make a promise or begin or render performance).
Whether mutual assent exists is usually a question of fact. See Foreca, S.A., v. GRD Dev. Co. , 758 S.W.2d 744, 745–46 (Tex. 1988) (whether parties intended to execute binding contract is often question for factfinder). But in some instances, the existence of mutual assent becomes a question of law. See id. at 746 ; see also R.R. Comm'n of Tex. v. Gulf Energy Expl. Corp. , 482 S.W.3d 559, 575 (Tex. 2016) (evidence conflicted as to whether parties had negotiated binding contract or intended to be bound only after formal document reflecting negotiations was signed, so appeal did not present "unusual situation" in which issue was question of law).
Analysis
Jeffrey and Buster & Cogdell executed the first version of the contract that Buster & Cogdell circulated. Jeffrey manifested his assent to its terms by signing it. See Sonnichsen , 221 S.W.3d at 635 (signature generally evidences assent). While Buster & Cogdell did not sign the contract, it manifested its assent by performing as required under the contract until it was no longer possible to do so due to the fire. See Mid-Continent Cas. Co. , 323 S.W.3d at 157 (beginning performance evidences assent). There is no contrary evidence suggesting lack of assent by these parties.
Chubb counters that there was no contract because Buster & Cogdell had already withdrawn the first version offered when Jeffrey signed it. But accepting Chubb's contention that Buster & Cogdell withdrew the first version by offering the second one with signature lines for both of the Meyers, Jeffrey and Buster & Cogdell still formed a binding contract. By signing and delivering the first version of the construction contract, rather than the second one, Jeffrey rejected the second version offered and presented the first version as a counteroffer. See Davis v. Tex. Farm Bureau Ins. , 470 S.W.3d 97, 104–05 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (stating that proposing material change to contractual proposal is counteroffer). Buster & Cogdell then accepted Jeffrey's counteroffer by performing as required.
Chubb argues there was no meeting of the minds due to the difference in the signature lines between the first and second versions of the contract circulated. But Buster & Cogdell abandoned its effort to obtain the signatures of both the Meyers after it received the first version, signed only by Jeffrey, and then performed. For mutual assent, or a meeting of the minds, the parties must agree to the same thing, in the same sense, and at the same time. Runion , 992 S.W.2d at 4. Given the sequence of events, Buster & Cogdell's performance after receiving the version of the contract signed by Jeffrey shows that they both assented to this version of the contract. There is no evidence that Buster & Cogdell ever tried to secure execution of the second version of the contract after Jeffrey signed and delivered the first version.
Chubb further argues that Mary did not sign either version of the construction contract and therefore did not assent to its terms, including the waiver provision. Accordingly, Chubb reasons, it may step into Mary's shoes and sue Buster & Cogdell and Newco for the losses caused by the fire even if Jeffrey waived his rights.
Obviously, the best practice—one that will help forestall litigation about mutual assent—is for the parties to sign the contracts they execute. However, a signature is not required to make a contract binding and enforceable, unless the parties explicitly require signatures as a condition of their mutual assent. Mid-Continent Cas. Co. , 323 S.W.3d at 157. The construction contract does not explicitly require signatures as a condition of mutual assent. No provision of the contract purports to do so, and the signature blocks in particular contain no language suggesting that the contract will only be considered valid if signed by the parties. On the contrary, above the signature blocks the contract states that the agreement is "entered into as of the day and year first written above," referring to the first page of the contract where it states that the agreement is made as of February 12, 2018. That date is handwritten into blank spaces intended for specifying the date of execution.
Chubb argues that the Meyers did in fact condition their assent on the parties’ signatures, relying on Jeffrey's request in the subject line of his transmittal e-mail for Chubb to countersign and return a countersigned copy to him. In support, Chubb cites Simmons & Simmons Construction Co. v. Rea , 155 Tex. 353, 286 S.W.2d 415 (1955).
But Rea differs from our case. In Rea , a general contractor and subcontractor negotiated the terms on which the subcontractor would work on a project. Id. at 416. Afterward, the general contractor reduced these negotiated terms to a written contract, which the general contractor gave to the subcontractor unsigned with instructions to obtain a required performance bond, sign the contract, and deliver the signed contract back to the general contractor for it to sign. Id. Both the general contractor's and subcontractor's signatures had to be sworn, and the contract recited that their sworn signatures constituted execution of the contract by the parties. Id.
The subcontractor did as instructed. Id. But when the general contractor received the performance bond and contract from the subcontractor, the general contractor declined to sign the contract and stated that it was no longer possible for the general contractor to enter into this contract. Id. The subcontractor then sued, contending that the contract was enforceable even though the general contractor had not signed it. Id. at 416–17. Our Supreme Court disagreed that the contract was enforceable. Id. at 418–19. Among other things, the Court noted that the contract not only contained signature blocks, it required the parties to swear to the execution of the contract. Id. at 418. Moreover, the contract anticipated that the subcontractor would obtain a performance bond before the contract could be executed by the parties. Id. at 418–19. Thus, the Court held, the contract was not binding because the parties explicitly required signatures as a condition of their mutual assent. See id.
In contrast, the construction contract before us does not require the Meyers or Buster & Cogdell to have their signatures sworn. Nor does the contract recite that their unsworn signatures constitute execution of the contract. Nor does the contract require the Meyers or Buster & Cogdell to satisfy any condition precedent, like obtaining a performance bond, before they could execute the contract. As we have previously indicated, these distinctions make a difference as to enforceability. See SK Plymouth v. Simmons , 605 S.W.3d 706, 716 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (recognizing that Rea ’s holding that contract wasn't enforceable was premised in part on contract's requirement that parties’ signatures be notarized); Bilello , 414 S.W.3d at 214 (recognizing that Rea ’s holding that contract wasn't enforceable was premised in part on party's demand for bond before it would sign).
The lone resemblance between Rea and this case is that one of the parties asked the other to sign the contract. But here again Rea differs. In Rea , the general contractor asked the subcontractor to sign and deliver the contract, at which point in time the general contractor stated it would sign the contract. In contrast, Jeffrey signed the construction contract and then e-mailed it to Buster & Cogdell with a request to countersign and return a countersigned copy. In other words, unlike the general contractor in Rea , Jeffrey signed the contract before he requested that Buster & Cogdell do the same. See SK Plymouth , 605 S.W.3d at 716 (recognizing that Rea ’s holding that contract wasn't enforceable was premised in part on fact that contract was given to one party by the other with directions to sign and return it to other party for signing afterward). Jeffrey did not insist that Buster & Cogdell had to sign the construction contract and give him a signed copy before his agreement to its terms would become binding. And, unlike the general contractor in Rea , Buster & Cogdell did not reject the construction contract when Jeffrey signed and delivered it. On the contrary, Buster & Cogdell then performed the work required by the contract. See Rea , 286 S.W.2d at 419 (distinguishing case in which another court held construction contract was enforceable because there contractor had already performed all work called for by contract and work had been accepted).
As to Mary, it is settled that one can manifest assent by conduct, so long as she intends to engage in the conduct and knows or has reason to know that the other party may infer from her conduct that she assents. See Strickhausen , 629 S.W.3d at 202 (intentional act that creates appearance of assent is binding if actor knows or has reason to know her act may cause other party to believe she assents). Mary, who was copied on Jeffrey's e-mail delivering the signed version of the contract to Buster & Cogdell, is identified as a party to the construction contract by name on its first and last pages. Afterward, Mary signed the check making payment of the ten percent of the total contract sum that was required by the contract "upon execution." In performing exactly as required under a contract identifying her as a party, Mary manifested her assent to its terms or, at the very least, knew or had reason to know that Buster & Cogdell would infer she assented based on her performance. See id. ; see also SK Plymouth , 605 S.W.3d at 718 (when signature is absent, person's conduct reflecting that she acted in accord with contract's terms evidences assent).
The record does not contain any competent evidence to the contrary. Though Mary stated in her affidavit that she "never intended to waive any rights to pursue any party that caused damage" to her home, her unexpressed intention is immaterial. See Angelou , 33 S.W.3d at 278 (unexpressed subjective intent is irrelevant); see also Texaco v. Pennzoil , 729 S.W.2d 768, 818 (Tex. App.—Houston [1st Dist.] 1987, writ ref'd n.r.e.) (factfinder is allowed to consider overt, objective manifestations of party's intent but not secret or subjective manifestations harbored by party). What matters is what Mary said and did, not what she intended but did not express. See Angelou , 33 S.W.3d at 278 (assessment as to whether party assented is objective inquiry that turns on what party said and did, not party's subjective state of mind).
Finally, Chubb asserts the Meyers and Buster & Cogdell at most assented to an oral construction contract, rather than a written one, that lacked the provision waiving any subrogation rights. But the record is devoid of evidence that the Meyers and Buster & Cogdell engaged in negotiations that culminated in an oral contract in lieu of the written ones circulated. Further, the record contains evidence to the contrary, like Jeffrey's signing of a written contract and Mary's signing of a check for ten percent of the contract sum due "upon execution" of that written contract.
On this record, we hold that Buster & Cogdell and Newco have shown that no genuine issue of material fact exists and they are entitled to judgment as a matter of law based on their affirmative defense of waiver. Even indulging every reasonable inference and resolving any doubts in Chubb's favor, it has not raised a genuine issue of material fact precluding summary judgment. Thus, the trial court did not err.
CONCLUSION
We affirm the trial court's judgment.