Reversed and Remanded and Majority and Dissenting Opinions filed June 26, 2012.

In The

Fourteenth Court of Appeals 

NO. 14-11-00368-CV

KINGWOOD HOME HEALTH CARE, L.L.C. D/B/A HEALTH SOLUTIONS 

HOME HEALTH, Appellant

V.

AMEDISYS INC. D/B/A AMEDISYS TEXAS, LTD., Appellee

On Appeal from the 165th District Court

Harris County, Texas

Trial Court Cause No. 2009-68291

M A J O R I T Y OPINION

The trial court granted summary judgment against Kingwood Home Health Care, 

L.L.C. d/b/a Health Solutions Home Health (“KHHC”) on Amedisys Inc. d/b/a Amedisys 

Texas, Ltd.’s (“Amedisys”) claim for breach of contract. In three issues, KHHC 

contends the trial court erred by granting summary judgment and striking portions of 

KHHC’s summary-judgment evidence. We reverse and remand.
2

I. BACKGROUND

Amedisys sued two of its former employees and KHHC for several causes of 

action allegedly arising from the former employees’ acceptance of employment with 

KHHC. Amedisys ultimately settled with its former employees. 

As described in detail below, KHHC made a written offer to Amedisys to settle its 

claims in exchange for $90,000.1 Amedisys sent KHHC a letter which Amedisys

contends constituted acceptance of all terms in the written offer. Thereafter, KHHC 

refused to pay Amedisys and filed a withdrawal of consent to settle. Amedisys amended 

its petition, asserting a claim against KHHC for breach of the purported settlement 

agreement. 

Amedisys filed a traditional motion for summary judgment on its claim for breach 

of the settlement agreement. In its response to Amedisys’s motion, KHHC argued it 

timely withdrew consent to settle and asserted certain affirmative defenses. Amedisys 

objected to portions of KHHC’s summary-judgment evidence. On February 1, 2011, the 

trial court sustained Amedisys’s evidentiary objections, granted Amedisys’s motion for 

summary judgment, and ordered KHHC to pay Amedisys $90,000 pursuant to the parties’ 

settlement agreement and $29,274.12 in attorney’s fees.2 

 

1

In its purported offer, KHHC repeatedly stated the offer was made in accordance with Texas 

Civil Practice & Remedies Code Chapter 42 and Texas Rule of Civil Procedure 167. Chapter 42 and 

Rule 167 provide parties a method for making an offer to settle all monetary claims between them which, 

if rejected, will entitle the offeror to recover litigation costs if the judgment to be awarded on the 

monetary claims is significantly less favorable to the offeree than was the settlement offer. See generally 

Tex. Civ. Prac. & Rem. Code Ann. §§ 42.001–42.005 (West 2008 & Supp. 2011); Tex. R. Civ. P. 167.1–

167.7. An offer of settlement made under Rule 167 “must not include non-monetary claims and other 

claims to which this rule does not apply.” Tex. R. Civ. P. 167.2(d). 

2 Amedisys voluntarily dismissed one former employee on December 17, 2010 and the other 

former employee on February 2, 2011. Thus, the February 1, 2011 summary judgment in favor of 

Amedisys became final on February 2, 2011 when Amedisys’s claims against the remaining former 

employee were dismissed.
3

II. SUMMARY JUDGMENT

In its first issue, KHHC contends the trial court erred by granting Amedisys’s 

motion for summary judgment.

A. Standard of Review and Relevant Law

We review a summary judgment de novo. Valence Operating Co. v. Dorsett, 164 

S.W.3d 656, 661 (Tex. 2005). A party moving for traditional summary judgment must 

establish there is no genuine issue of material fact and he is entitled to judgment as a 

matter of law. See Tex. R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott,

128 S.W.3d 211, 215–16 (Tex. 2003). If the movant establishes his right to summary 

judgment, the burden shifts to the nonmovant to raise a genuine issue of material fact. 

See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). We must take as 

true all evidence favorable to the nonmovant and draw every reasonable inference and 

resolve all doubts in favor of the nonmovant. Mendoza v. Fiesta Mart, 276 S.W.3d 653, 

655 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). 

The foundational element of a breach-of-contract claim is the existence of an 

enforceable contract. See Expro Americas, LLC v. Sanguine Gas Exploration, LLC, 351 

S.W.3d 915, 920 (Tex. App.—Houston [14th Dist.] 2011, pet. filed). To create an 

enforceable common-law contract, there must be a clear and definite offer followed by a 

clear and definite acceptance in accordance with the offer’s terms. Parker Drilling Co. v. 

Romfor Supply Co., 316 S.W.3d 68, 73–74 (Tex. App.—Houston [14th Dist.] 2010, pet. 

denied); see also Berg v. Wilson, 353 S.W.3d 166, 172 n.9 (Tex. App.—Texarkana 2011, 

pet. denied) (“[S]ettlement agreements are governed by contract law.”).

B. Analysis

Amedisys presented the following summary-judgment evidence as proof that 

Amedisys accepted the terms of KHHC’s settlement offer. KHHC’s letter to Amedisys 

included the following language:
4

Please accept this letter as an offer of settlement regarding the above 

referenced matter. Specifically, [KHHC] makes this offer to pay 

[Amedisys] to settle all monetary claims between the parties in accordance 

with Texas Civil Practice & Remedies Code Chapter 42 and Texas Rule of 

Civil Procedure 167.

KHHC makes this offer of settlement at least sixty (60) days after KHHC 

has appeared in this case.

KHHC makes this offer of settlement at least fourteen (14) days before the 

case is set for conventional trial on the merits.

Offer of Settlement

KHHC offers to settle with Amedysis the following claims in accordance 

with Texas Civil Practice & Remedies Code Chapter 42 and Texas Rule of 

Civil Procedure 167:

KHHC offers a total sum of $90,000 to settle all claims asserted or which 

could have been asserted by Amedisys against KHHC in the above 

referenced case. This full and final offer is for all monetary damages 

claimed – including attorneys fees, costs and interest that were recoverable 

as of the date of this offer by KHHC. A lump-sum payment in the amount 

of $90,000 will be made by KHHC within fifteen (15) days after 

acceptance.

Amedisys may accept this settlement offer by serving written notice on 

KHHC’s counsel before June 25, 2010, which is at least fourteen (14) days 

after this offer is served. If this offer is not accepted by 5:00 p.m. on June 

25, 2010, it is deemed rejected and can serve as the basis for litigation costs 

under Texas Civil Practice & Remedies Code Chapter 42 and Texas Rule of 

Civil Procedure 167.

I look forward to your response.

(emphasis added).

In response, Amedisys sent KHHC a letter containing the following language:

Pursuant to Rule 167.3(b) of the Texas Rules of Civil Procedure, 

[Amedisys] hereby Accepts [KHHC’s] offer to settle all monetary claims 

asserted against KHHC for the total sum of $90,000, for which a lump sum 

payment shall be tendered to Amedisys by KHHC within fifteen days after 

acceptance.
5

I will contact you early next week to discuss the preparation and execution 

of a settlement agreement that memorializes all necessary settlement terms.

(emphasis added).

KHHC argues that Amedisys’s letter was not an effective acceptance of the

settlement offer because Amedisys did not accept all material terms of the offer.3 An 

acceptance must be identical with the offer in order to make a binding common-law 

contract. Antonini v. Harris Cnty. Appraisal Dist., 999 S.W.2d 608, 611 (Tex. App.—

Houston [14th Dist.] 1999, no pet.). A purported acceptance that changes or qualifies an 

offer’s material terms constitutes a rejection and counteroffer rather than an acceptance. 

Parker Drilling, 316 S.W.3d at 74. When “negotiations” are in writing, the question of 

whether an offer was unconditionally accepted is primarily a matter of law for the court. 

Antonini, 999 S.W.2d at 611. Contracts should be examined on a case-by-case basis to 

determine which terms are material or essential. Parker Drilling, 316 S.W.3d at 74.

KHHC argues that Amedisys failed to accept a material term of KHHC’s offer—

namely, that the settlement would include all claims which could have been asserted 

against KHHC. Amedisys contends its statement “all monetary claims asserted” was 

sufficient to accept KHHC’s offer because the offer included the phrase “all monetary 

damages claimed.”4 However, this contention ignores the fact that KHHC offered “to 

 

3 Amedisys contends KHHC may not argue for the first time on appeal that Amedisys’s purported 

acceptance of the settlement offer was ineffective. However, KHHC may challenge for the first time on

appeal the legal sufficiency of the evidence supporting Amedisys’s motion, including evidence supporting 

the existence of a contract. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 

1993); Tello v. Bank One, N.A., 218 S.W.3d 109, 118–19 (Tex. App.—Houston [14 Dist.] 2007, no pet.). 

“[A] challenge to the legal sufficiency of the movant’s summary judgment proof is challengeable 

regardless of whether the non-movant answers or responds to the movant’s motion for summary 

judgment.” Bustillos v. Jacobs, 190 S.W.3d 728, 734 (Tex. App.—San Antonio 2005, no pet.).

4 To the extent Amedisys contends its language was sufficient to effect acceptance of all terms of 

KHHC’s offer, we disagree. In its letter, Amedisys stated, “[Amedisys] hereby Accepts [KHHC’s] offer 

to settle all monetary claims asserted against KHHC.” (emphasis added). The term “settle,” as used in 

this context, could be interpreted as Amedisys’s intent to release only its presently asserted monetary 

claims, reserving its right to file against KHHC any other monetary and non-monetary claims stemming 

from the underlying incident. See Gunn Infiniti, Inc. v. O’Byrne, 996 S.W.2d 854, 859–60 (Tex. 1999) 

(explaining offeror’s use of term “settle” “implicitly if not explicitly required [offeree] to release his 

claims”); see also Baty v. ProTech Ins. Agency, 63 S.W.3d 841, 848 (Tex. App.—Houston [14th Dist.] 

2001, pet. denied) (recognizing that claims not mentioned in a release are not discharged). 
6

settle all claims asserted or which could have been asserted.” (emphasis added). We 

conclude Amedisys did not accept all material terms of KHHC’s offer. See Parker 

Drilling, 316 S.W.3d at 74.5 

Accordingly, Amedisys’s letter was not a valid acceptance of KHHC’s offer, and 

the parties do not have a binding settlement agreement. We sustain KHHC’s first issue, 

reverse the trial court’s summary judgment, and remand for further proceedings.6

/s/ Charles W. Seymore

Justice

Panel consists of Justices Frost, Seymore, and Jamison. (Jamison, J., dissenting).

 

5 Amedisys also argues that it accepted all terms of KHHC’s offer because Amedisys did not 

specifically object to any terms of the offer. See Tex. R. Civ. P. 167.2(c) (providing that offeree may 

object to unreasonable conditions of offeror’s Rule 167 offer of settlement, and “an offer made subject to 

a condition determined by the trial court to have been unreasonable cannot be the basis for an award of 

litigation costs under this rule”). However, Amedisys does not cite any authority supporting the 

proposition that a responding party rejects or modifies the terms of an offer only when the party 

specifically objects to the terms. Moreover, such proposition is inconsistent with well-settled law that an 

agreement is formed only when the offeree accepts all material terms of an offer.

6 We need not consider KHHC’s remaining issues because our resolution of KHHC’s first issue is 

dispositive of this appeal.