IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-20511

Summary Calendar

STANWOOD BOOM WORKS, LLC,

Plaintiff-Appellant

v.

BP EXPLORATION & PRODUCTION, INC.,

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-11-CV-19

Before KING, JOLLY, and GRAVES, Circuit Judges.

PER CURIAM:*

The issue presented in this appeal is whether there was an enforceable

contract between appellant and appellee. BP Exploration & Production, Inc.

(“BP”) drafted a purchase order and sent it to Stanwood Boom Works, LLC

(“Stanwood”). Stanwood informed BP that Stanwood required BP’s signature

prior to moving forward, and Stanwood added a signature block for BP. BP

never signed it. The district court ruled that there was no contract and no claim

United States Court of Appeals

Fifth Circuit

F I L E D

April 25, 2012

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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for promissory estoppel. The district court further ruled that Stanwood is not

entitled to additional discovery to discern the intent of the parties. We AFFIRM.

Facts and Procedural History

A. Pre-Purchase Order Negotiations

In June 2010, BP began negotiating with Stanwood for the potential

purchase of containment boom. Before BP even considered purchasing

Stanwood’s containment boom, BP inspected and assessed Stanwood’s 

manufacturing processes. During this assessment, BP found that Stanwood’s

boom did not meet BP’s typical requirements. By July 1, 2010, Stanwood

requested that BP make an exception to its requirements. The next day – July

2, 2010 – Stanwood e-mailed BP its pricing per foot and its current capacity for

production of boom. However, on July 5, 2010, BP rejected Stanwood’s price.

Later that same day, Stanwood provided another quote to BP. Stanwood did not

lower its price. Over the next two days, Stanwood and BP continued to negotiate

a price. When the parties neared an agreement on price, Stanwood raised other

terms to be discussed further. On July 7, 2010, Stanwood insisted on a purchase

order before going forward, and BP reiterated that no deal had yet been

approved. On July 8, 2010, Stanwood requested a conference call to negotiate

the terms and conditions further, including terms regarding the warranty on

product clause, the cancellation provision, the penalty fees clause, the delivery

schedule and the renewal portion. Stanwood communicated these changes to

BP. BP replied that same day that the new terms needed to be approved by

management. Stanwood then required either BP’s signature or money down as

consideration for any future contract.

B. Purchase Order Negotiations

On July 8, 2010, BP first sent a purchase order – titled “BP-DIS-0022 Rev.

0" – to Stanwood. Upon review, Stanwood uncovered several objectionable terms

that warranted more negotiations. Thus, Stanwood refused to execute it. 

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On July 9, 2010, Stanwood and BP held another telephone conference. BP

specifically informed Stanwood that it could not seek authority to enter into the

purchase order until after Stanwood signed.

On July 10, 2010, BP emailed another purchase order – titled

“BP-DIS-0022 Rev. 1" – to Stanwood. Stanwood signed the purchase order and

wrote in a signature block for BP. Daniyal Siddiqui, a Purchasing Specialist at

BP, responded that he did not have approval for the appropriate signatures from

BP. BP never signed the purchase order. 

On July 12, 2010 (four days after BP’s initial draft purchase order), BP

emailed yet another purchase order – titled “BP-DIS-0022 Rev. 2" – to Stanwood. 

Again, Stanwood wrote in a signature block for itself and for BP, signed the

document, and sent it back to BP. BP never signed the purchase order and

never purchased boom from Stanwood.

C. Procedural History

Stanwood brought suit against BP asserting claims of breach of contract

and promissory estoppel. The district court ordered the parties to agree on an

exhibit list to use in summary judgment briefing. The district court placed no

limitations or restrictions on this agreed exhibit list. Stanwood and BP chose

the documents to support their respective summary judgment arguments. 

Stanwood and BP conferred and agreed on a list, which included email

communications between the parties during their negotiations. Stanwood never

raised any issues regarding the content of the record. After the parties filed

cross motions for summary judgment, the district court granted summary

judgment in favor of BP. Stanwood moved for reconsideration, requesting

open-ended discovery, document production, and depositions about BP’s internal

communications, policies, and handling of other purchase orders in its extensive

business. The district court denied Stanwood’s motion. Stanwood appealed.

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Analysis

A. Standard of Review

This court reviews summary judgments de novo, and applies the same

standards as the district court. Greater Houston Small Taxicab Co. Owners

Ass’n v. City of Houston, Tex., 660 F.3d 235, 238 (5th Cir. 2011). Summary

judgment is proper if there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law. Id.; see also Fed. R. Civ. P.

56(a).

B. Contract Formation

“When reviewing written negotiations, the question of whether an offer

was accepted and a contract was formed is primarily a question of law for the

court to decide.” Scaife v. Associated Air Ctr. Inc., 100 F. 3d 406, 410 (5th Cir.

1996) (citing S & A Marinas, Inc. v. Leonard Marine Corp., 875 S.W.2d 766, 769

(1994)). “If an agreement has been reduced to writing, as it was in this case, an

assent to the writing must be manifested. Manifestation of assent ‘commonly

consists of signing and delivery.’” Scaife, 100 F.3d at 410-11. Scaife involved a

proposed agreement to repair and renovate an aircraft. Id. The agreement “was

revised at least three times and expressly contained signature blocks for the

parties.” Id. at 411. The agreement was never signed, but Scaife nonetheless

argued it was enforceable against the repair company. Id. The district court,

“treating the formation of a binding contract as a legal issue for the court to

decide,” granted summary judgment for the repair company. Id. at 409. This

court affirmed, holding “that the parties contemplated the formation of a binding

agreement to include the signatures of both parties.” Id. at 411. “No evidence”

showed that the defendant “began work on the aircraft or acted in any

affirmative manner to assent to the agreement notwithstanding the lack of

delivery and formal execution of the contract.” Id. Thus, “no contract was ever

formed and, as a result, summary judgment was appropriate in this case.” Id. 

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The circumstances are fundamentally the same here, including the suspension

of performance by the parties.

Contracts require mutual assent to be enforceable. Baylor Univ. v.

Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007). The parties’ assent must

comprehend the whole proposition, and the agreement must comprise all the

terms which they intend to introduce into it. Effel v. McGarry, 339 S.W.3d 789,

792 (2011). Here, the requirements were not met. BP’s purchase order was not

an offer because BP’s signature, after Stanwood’s assent, was a condition

precedent to contract formation. In order to be an offer, it must reasonably

appear that assent is all that is needed to ripen the offer into a contract. See

Crest Ridge Constr. Group, Inc. v. Newcourt Inc., 78 F.3d 146, 153 (5th Cir.

1996). “The mere submission of a proposal does not create any contractual

obligation on the part of either party.” See Baldwin v. New, 736 S.W.2d 148, 150

(1987) (holding that proposals are not offers). In the instant case, BP required

Stanwood’s signature before it sought management approval, and Stanwood

required BP’s signature before it would start delivery. See Axelson, Inc. v.

McEvoy-Willis, 7 F.3d 1230, 1233 (5th Cir. 1993) (applying Texas law and

holding that price quotation requiring seller to accept order could not be an offer,

but only an invitation for an offer); see also Peterson v. NCNB Tex. Nat’l Bank,

862 S.W.2d 182, 183 (1993) (“A bid is simply an offer and does not alone create

a contract.”). Because BP’s purchase order invited additional negotiating steps,

instead of inviting assent, we cannot construe it as an offer. Even assuming BP’s

purchase order was an offer, Stanwood’s response to that offer was not an

acceptance because it was not “a definite and seasonable expression of

acceptance.” Tex. Bus. & Com. Code § 2-207. Although the modern statutory

standard for acceptance permits the accepting party to stray somewhat from the

offer’s terms, the purported acceptance must still be certain enough to evince

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mutual assent. Stanwood’s act of adding a signature block for BP, considered in

the full context of the parties’ negotiations, does not evince such assent.

C. Promissory Estoppel

Stanwood argues that it relied to its detriment on the belief that BP and

Stanwood had formed a contract. Stanwood alleges that its reliance led

Stanwood to make raw material procurement preparations and

equipment/production investments to ensure that it would be able to start

delivering product on day one. However, in an email that Stanwood sent on July

12, 2010 – 10 hours after Stanwood had emailed the purchase order to BP –

Stanwood asked BP “[t]o be clear, is our purchase order BP-DIS-0022 signed and

emailed 7/12 valid?” (Emphasis added.). On July 13, 2010, BP responded:

As of right now This PO is on Hold. We were unable to get the appropriate

signature from BP to continue forward.

The elements of promissory estoppel, or detrimental reliance, are a

promise that the promisor can foresee will cause substantial, detrimental

reliance by the promisee. English v. Fischer, 660 S.W.2d 521, 524 (1983); see

Sandel v. ATP Oil & Gas Corp., 243 S.W.3d 749, 753 (2007). “It is a

well-established principle in Texas that ‘contract rights cannot be created by

estoppel [but estoppel can] prevent a party’s conduct and actions from operating

as a denial of the right of enforcement of a contractual obligation already

created.’” Oliver Res. PLC v. Int’l Fin. Corp., 62 F.3d 128, 131 (5th Cir. 1995). 

“[E]stoppel does not affirmatively create contract rights.” Id. at 131, n.5; First

Nat’l Bank of Coleman v. First Nat’l Bank of Brownwood, 278 S.W. 188, 193-94

(1925); see Westchester Fire Ins. Co. v. Wagner, 30 S.W. 959, 961 (1894) (“It

would be subversive of one of the fundamental principles governing the law of

agency to hold that, when notice of the authority conferred upon an agent is

given in writing, persons dealing with him could claim notice to the principal

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through the agent, in regard to matters about which it is expressly declared that

he shall not have power to act.”).

Here, BP made no promise for which it should have foreseen reliance. At

best, BP indicated that it wanted to purchase boom:

! July 5, 2010: Stanwood sends BP a quote “that will assist your team in

presenting the business case to your leadership team for approval.”

! July 8, 2010: BP informs Stanwood that it is “still trying to get approval

from our Senior Management.”

! July 9, 2010: BP informs Stanwood that the purchase order is “back in the

approval tunnel” and that it is “in a holding pattern until it comes out.”

! July 10, 2010: With more modifications ongoing, BP states, “I am going

to get with Matt Pavlas to see about getting it signed before we send it out. 

I am not entirely sure that may happen.”

! July 10, 2010: After another round of negotiations, BP informs Stanwood

to sign the deviation request and “get it back to me for Delegation of

Authority Approval which will happen Monday.”

! July 12, 2010: BP sends Stanwood an amended purchase order, which

Stanwood must sign before BP. Stanwood, knowing it does not have a

deal, responds with a “signed PO . . . which rescinds our PO and

commitments in BP DIS-0022,” and instructs that “[w]e will need this

signed as you noted below by BP and returned to us to release shipment

of the product today.”

! July 13, 2010: BP informs Stanwood, “As of right now This PO is on Hold. 

We were unable to get the appropriate signatures from BP to continue

forward.”

Even in the most favorable light, these communications reflect continued

negotiations that required BP’s Purchasing Specialist to seek approval from his

management before BP could execute any agreement. The very nature of BP’s

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representations that it needed approval from BP management in order to sign

the purchase order meant that BP’s Purchasing Specialist had no authority to

make a binding promise that it would be signed. 

D. Additional Discovery Unnecessary

Stanwood argued that further discovery would reveal whether BP

intended to be bound, and what BP thought of Stanwood’s requirement for

signatures. Procedurally, Stanwood was required to: (1) request the extended

discovery before the court’s ruling on summary judgment; (2) place the district

court on notice that further discovery pertaining to the summary judgment

motion was being sought; and (3) demonstrate to the district court with

reasonable specificity how the requested discovery pertains to the pending

motion. See Chevron U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1155-56

(5th Cir. 1993). Stanwood did none of these things. Stanwood argued for

additional discovery for the first time after summary judgment was granted, and

therefore cannot complain that the opportunity for additional discovery was

inadequate. See Walls v. Gen. Motors, Inc., 906 F.2d 143, 146-47 (5th Cir. 1990). 

Thus, the district court properly denied Stanwood’s motion.

Conclusion

There was no contract. There were only negotiations and proposals. BP

sent Stanwood a draft purchase order. Negotiations followed in which Stanwood

insisted that it would not move forward without a signed contract. Likewise,

there was no promissory estoppel, because the party, here Stanwood, which is

relying on the informal indication is the party that insisted that it had to be

documented with a signed contract. AFFIRMED.

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