Reversed, Rendered, and Remanded and Majority and Dissenting Opinions

filed July 25, 2019.

In The 

Fourteenth Court of Appeals 

NO. 14-17-00976-CV

KYLE TAUCH, Appellant 

V.

VIRGINIA ANGEL, TRUSTEE FOR THE GOBSMACK GIFT TRUST, AS 

ASSIGNEE OF SOUTH STATE BANK, AND SOUTH STATE BANK, 

Appellees 

On Appeal from the 127th District Court 

Harris County, Texas 

Trial Court Cause No. 2016-33404 

D I S S E N T I N G O P I N I O N 

Our main task in this summary-judgment appeal is to decide whether two 

parties formed a contract. The answer turns on the doctrine of implied revocation. 

Long-recognized but seldom invoked, the doctrine essentially provides that if the 

offeree learns that the offeror has taken some action inconsistent with the offer, the 

law deems the offer impliedly revoked, so that the offeree can no longer accept it 
2

to form a contract with the offeror. In today’s case the majority concludes that the 

offeror, appellee South State Bank (“Bank”) did not impliedly revoke an offer it 

made to appellant Kyle Tauch to settle an outstanding judgment. The summaryjudgment proof and governing legal standard show otherwise. 

While the Bank’s offer to settle the judgment was pending, Tauch learned 

that the Bank had agreed to assign the same judgment to a third party, appellee 

Virginia Angel, Trustee for the Gobsmack Gift Trust (“Angel”). Tauch then tried 

to accept the offer, but the Bank refused. Litigation followed. The Bank and 

Angel prevailed in the trial court, arguing Tauch could not accept an impliedly 

revoked offer, so the Bank and Tauch could not have formed a contract. Rejecting 

the implied-revocation argument, the majority reverses the trial court’s summary 

judgment in favor of the Bank and Angel and renders judgment for Tauch. The 

law and summary-judgment proof show as a matter of law that the Bank impliedly 

revoked its offer, leaving Tauch without the power to accept it or form a contract 

with the Bank. With no contract, there could be no breach. The trial court reached 

the correct judgment and this court should affirm it. Because the majority reaches 

the opposite conclusion, I respectfully dissent. 

The Implied Revocation Doctrine 

The Supreme Court of Texas first applied the implied revocation doctrine 

decades ago in Antwine v. Reed.1

 In explaining how the doctrine works, the high 

court noted that when an offeror impliedly revokes an offer, the offeree’s power of 

acceptance terminates, meaning no contract can be formed.2 The Antwine court set 

a low threshold for invoking the doctrine: all the law requires to trigger implied 

 

1

199 S.W.2d 482, 485 (Tex. 1947).

2

Id.
3

revocation is “that the person making the offer does some act inconsistent with it.”3

Under that standard, the Bank impliedly revoked its offer to Tauch.4

The Antwine Standard: Some Act Inconsistent with the Offer 

All the Bank need show to establish implied revocation is an act by the Bank 

inconsistent with the offer to Tauch and Tauch’s knowledge of the inconsistent act. 

The inconsistent act in Antwine was not a contract with a third party as to the same 

subject matter.5 Instead, the inconsistent act that amounted to an implied 

revocation of an offer to sell land was the offeror’s advising the real-estate broker 

to take the land off the market.

6

 The real-estate broker in Antwine listed the land 

for sale by the offeror, and also acted on behalf of the offeree.7 After the offeror 

made a counteroffer to the offeree, but before the offeree took the steps necessary 

to accept the counteroffer, the offeror entered into a contract with a third-party for 

the sale of the land.8 Yet, the offeror did not notify the offeree of this third-party 

contract, nor was there any evidence that the offeree learned about this third-party 

contract.9

 Because the third-party contract was not communicated to the offeree, 

that action could not serve as the inconsistent act.10

 But trial evidence did show 

that the offeror told the real-estate broker to take the land off the market and that 

the broker told the offeree of this instruction before the offeree took the steps 

 

3

Id. (emphasis added). 

4

Id. at 485–86. 

5

See id.

6

See id. 

7

See id. at 484. 

8

See id. 

9

See id. (stating that the offeror made no effort to communicate with the offeree with regard to 

taking the land off the market, other than the communication with the broker and that the offeror 

did not notify the offeree that offeror contracted with a third party for the sale of the land). 

10 See id. at 485. 
4

necessary to accept the offer.11 Thus, the Supreme Court of Texas did not rely on 

the third-party contract as the inconsistent act supporting an implied revocation.12

 

Instead, the high court held that the evidence proved implied revocation based on 

the offeror’s inconsistent act in telling the real-estate broker to take the land off the 

market and the offeree’s knowledge of this act.13

 The majority indicates that an 

agreement between the offeror and a third-party for the sale of the subject matter of 

the offer is required for an inconsistent act.14

 This conclusion conflicts with the 

Antwine precedent.15

 If the high court viewed this single communication as an act inconsistent 

with a proposed land purchase, then surely we must view the larger action of 

agreeing to assign the Bank’s interest in a judgment to a third party as inconsistent 

with releasing the same judgment in favor of Tauch. Likewise, if the Antwine 

offeree’s knowledge of the seller’s instruction to the broker sufficed as notice to 

the Antwine offeree that the offeror had revoked the proposed contract to the 

Antwine offeree, then surely Tauch’s receipt of the assignment agreement sufficed 

to put Tauch on notice of the Bank’s implied revocation of its offer to settle the 

judgment.

16

 The Antwine court held that in light of the offeror’s inconsistent act, 

the offeror was deemed to have impliedly revoked the offer, so the court found the

parties did not form a contract when the offeree later took the steps to accept the 

offer.

17

 

 

11 See id. at 485–86. 

12 See id. 

13 See id. 

14 Ante at 12.

15 See Antwine, 199 S.W.2d at 485–86.

16 See id. 

17 See id. 
5

Applying Antwine to today’s case, the Bank impliedly revoked its offer to 

Tauch when Tauch learned the Bank had agreed to assign the judgment to Angel.18

 

Before Tauch communicated an acceptance to the Bank, Angel (through counsel) 

informed Tauch (through counsel) that the Bank had agreed to assign its interest in 

the judgment to Angel. That action was inconsistent with the Bank’s offer to settle 

with Tauch.19 Even if the parties to the assignment agreement agreed that it was 

not to take effect until the day after Tauch learned of it, the parties already had 

executed the agreement, and Tauch has not shown that the Bank would have been 

able to rescind the assignment agreement unilaterally before the agreement took 

effect the next day. 

Before Tauch communicated his acceptance to the Bank, Angel sent a copy 

of the assignment agreement to Tauch. That agreement was inconsistent with the 

Bank’s offer to settle with Tauch.20

 And, Tauch received notice of the inconsistent 

action before he sent the April 13 email purporting to accept the Bank’s offer. At 

that point, having learned of the inconsistent action, Tauch could not have accepted 

the Bank’s offer because Tauch’s power of acceptance came to an end the moment 

he received notice of the inconsistent act — before he sent the email acceptance.21 

Simply stated, when Tauch learned that the Bank had executed the assignment 

agreement, the law deemed the Bank’s offer to Tauch revoked. 22 

 

18 See id. 

19 See id. 

20 See id. 

21 See id. 

22 See id. 
6

An Act Inconsistent with the Bank’s Offer to Tauch 

The majority relies heavily upon its conclusion that because the Bank’s 

assignment to Angel did not become effective until after Tauch sent the email 

acceptance, the offer could not have been impliedly revoked. By focusing 

exclusively on the effective date of the assignment agreement, the majority misses

the core inquiry — whether the Bank took some action inconsistent with the offer 

to release the judgment in Tauch’s favor. The question is not whether Angel could 

enforce the assignment on April 13 or even whether the assignment had become 

executory; rather, the question is whether the Bank’s act of agreeing to assign the 

judgment to Angel (effective the next day) was inconsistent with releasing the 

same judgment to Tauch.23

 Whether the assignment’s effective date was a day 

later, a week later, or a month later, agreeing to assign the judgment to Angel was 

an action inconsistent with releasing the judgment in Tauch’s favor. 

Agreeing to assign the judgment to Angel is incompatible with releasing 

the judgment as to Tauch. One cannot be reconciled with the other. Agreeing to 

assign the judgment to Angel effective April 14 is inconsistent with releasing the 

judgment as to Tauch on April 13. Any agreement to assign the judgment to Angel 

is an act inconsistent with releasing the judgment as to Tauch. 

 The law provides that as soon as Tauch learned of the inconsistent act — 

the Bank’s signing of the assignment agreement — Tauch’s power to accept the 

Bank’s offer terminated.24

 Tauch’s knowledge of the inconsistent act operated in 

law as an implied revocation of the Bank’s settlement offer.25 A revoked offer 

 

23 See id. 

24 See id. 

25 See id. 
7

cannot be accepted.26 So, Tauch’s April 13 email purporting to accept the Bank’s 

offer could not and did not form a contract.27 The legal standard in section 43 of 

the Restatement (Second) of Contracts is substantially similar to the supreme 

court’s legal standard in Antwine, so the result would be the same if section 43 

applied to this case.28

By taking a definite action inconsistent with its offer to settle with Tauch, 

the Bank impliedly revoked that offer.29

 Neither Tauch nor the majority offer any 

explanation of how the next-day effective date makes the assignment consistent 

with the offer. That the assignment would not become effective until the next day 

does not somehow make the act of agreeing to assign the judgment consistent with 

releasing it as to Tauch. Whether the assignment took effect on April 13 or April 

14, assigning the judgment to Angel was an act inconsistent with the offer to 

Tauch. 

The majority reasons that the Bank and Angel “did not have an effective

contract at the time Tauch accepted”

30 and the Bank “had not yet assigned its 

interest in the judgment to Angel at the time Tauch accepted the bank’s offer to 

settle.”

31 At the very least, the Bank and Angel had formed an executory contract 

— and Tauch had learned of it, seen it, and even read it — before he purported to 

 

26 See id. 

27 See id. 

28 Under Restatement section 43 “[a]n offeree’s power of acceptance is terminated when the 

offeror takes definite action inconsistent with an intention to enter into the proposed contract and 

the offeree acquires reliable information to that effect.” Restatement (Second) of Contracts § 43 

(1981).

29 See id. 

30 Ante at 12.

31 Id.
8

accept the Bank’s offer. Promising to assign the judgment to Angel is an act 

inconsistent with releasing it as to Tauch. 

The majority concludes that entering into an assignment on April 13 that 

would not take effect until the next day “is not an action that would prevent the 

bank’s April 11 offer to Tauch from materializing into a contract with Tauch 

should he accept the proposal before April 14, which he did.”32

 But action that 

would prevent the offer from materializing into a contract is not the supreme 

court’s standard.33 All the Bank needed to show was an act inconsistent with the 

Tauch offer and Tauch’s knowledge of that action,34 and the Bank did. As a matter 

of law the Bank impliedly revoked its offer to Tauch before Tauch attempted to 

accept it via the April 13 email.35 The implied revocation killed the offer, so that 

email could not and did not constitute an acceptance of it. 36

 The Bank and Tauch 

did not form a settlement agreement. Without a contract, Tauch cannot possibly 

prevail on a breach-of-contract claim. 

Scope of Implied Revocation Doctrine 

The majority dubs Antwine a “real estate case” and questions whether the 

implied revocation doctrine applies outside the real estate context. But nothing in 

the Antwine court’s application or discussion of the doctrine limits it to real-estate 

transactions or restricts its application to any particular context. 37 Tauch urges this 

court not to “extend” the implied revocation doctrine beyond the real-estate 

 

32 Ante at 13. 

33 See Antwine, 199 S.W.2d at 485–86.

34 See id. 

35 See id. 

36 See id. 

37 See id. at 484-86. 
9

context, but neither today’s case nor the doctrine itself presents that choice. 

Because the supreme court has not limited the doctrine to real-estate cases, 

applying it in today’s case hardly amounts to an extension. Quite the opposite, 

because the high court has not limited the implied revocation doctrine to any 

particular genre of cases, we would have no legitimate basis for doing so.38

 

Conclusion 

The trial court correctly granted Angel’s motion for summary judgment and 

correctly denied Tauch’s motion for summary judgment. The trial court acted 

properly in signing a final judgment that Tauch take nothing on his claims against 

Angel and the Bank, and the trial court correctly awarded Angel and the Bank their 

attorney’s fees. Because Tauch should not prevail on appeal, he should not recover 

his fees from Angel and the Bank. 

 

 /s/ Kem Thompson Frost

 Chief Justice

Panel consists of Chief Justice Frost and Justices Jewell and Bourliot (Jewell, J., 

majority).

 

38 The majority concludes that the implied revocation doctrine “typically, if not exclusively, 

applie[s] in real-estate cases.” But the comment to the Restatement (Second) of Contracts § 43 

does not support that conclusion. See ante at 10-11, n.2. Comment b merely observes that “The 

rule of this Section has been applied most frequently to offers for the sale of an interest in land.”

Restatement (Second) of Contracts § 43 cmt. b.