COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-09-00152-CV

JAN LUCAS D/B/A JATO OIL AND 

GAS

APPELLANT

V.

ROGER L. COOMER, VERNA E. 

COOMER, AND PHIL KING D/B/A 

KING AND KING

APPELLEES

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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

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MEMORANDUM OPINION1

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I. INTRODUCTION

This is an appeal from a summary judgment in an oil and gas case.2

Appellees Roger L. Coomer, Verna E. Coomer, and Phil King d/b/a/ King and 

 

1See Tex. R. App. P. 47.4.
2

King filed a motion for summary judgment against Appellant Jan Lucas d/b/a Jato 

Oil and Gas. In granting Appellees’ motion for summary judgment, the trial court 

ordered Lucas to pay the Coomers a lease bonus of $176,000 and King a 

finder=s fee of $16,000. In three issues, Lucas argues that the trial court erred by 

granting summary judgment because (1) Appellees failed to present evidence 

that the lease was accepted by Lucas, (2) Appellees failed to bring forward 

evidence that conditions precedent to the effectiveness of the lease had been 

satisfied, and (3) an ambiguity in the lease created a genuine issue of material 

fact. We will affirm. 

II. BACKGROUND FACTS

The Coomers own approximately 160 acres of land in Parker County, 

Texas. They asked King to inquire into whether any production companies would 

be interested in leasing the mineral rights to their property. Robert Palmer, who 

is not a party to the present suit, then initiated communication between King and 

Lucas. Palmer told King that Lucas had the ability to Alease the mineral rights to 

the Coomers= property.@

 

2Although this case was submitted on October 1, 2009, it was not assigned 

to this author until November 2, 2010.
3

Lucas and King then entered into negotiations to lease the minerals on the 

Coomers= property. King negotiated the amount of bonus, royalty fee, and 

finder=s fee. After the terms of the lease had been agreed upon, King sent Lucas 

a proposed lease. Lucas told King that she could not agree to the inclusion of 

the bonus amount and finder=s fee in the lease, but she agreed to have those

terms included in a Supplemental Addendum to the lease. King then prepared a 

Supplemental Addendum and sent Lucas the updated lease and Supplemental 

Addendum. 

The lease contains a provision stating that A[t]his lease shall be effective as 

to each Lessor [the Coomers] on execution hereof as to his or her interest and 

shall be binding on those signing.@ The lease contains signature blocks for the 

Coomers and for Jato. Additionally, Exhibit “A,” attached to the lease, states that 

A[t]he following provisions shall supplement the printed provisions of the Lease; 

and, in the event of any conflict between the following supplemental provisions 

and the provisions of the printed Lease, the supplemental provisions of this 

Exhibit >A= shall prevail and control.@ The provision upon which Lucas relies in 

this appeal is paragraph 20 of Exhibit “A.” Paragraph 20 reads as follows, 

20. Acceptance by Lessee. Upon acceptance of this agreement, a 

representative of the Lessee shall initial each page of the Lease and 

of this Addendum and file the original of record in the county records 

of Parker County, Texas and provide Lessor=s Attorney, [King], a 

certified copy of such lease no later than 4:30 P.M. November ___, 

2007. Failure to so provide [sic] then this offer shall be rescinded 
4

and the lease offer shall be ipso facto withdrawn. Timely filing and 

delivery of the lease shall constitute acceptance by the Lessee. 

Failure to file and deliver the certified copy of the lease shall be 

prima facie proof that the lease was declined by the Lessee. 

The date by which Jato was required to provide King with a certified copy of the 

lease was left blank. Directly below that provision are “SIGNED FOR 

IDENTIFICATION” signature blocks for the Coomers as lessors and for Jato as 

lessee. 

The Supplemental Addendum to the lease contains the bonus and finder’s 

fee provisions. It states, AUpon execution of this lease, Lessee shall pay Lessor 

as a bonus the sum of $1,100.00 per total mineral acre leased.@ It also provides 

that ALessee shall pay to [King] the additional undivided sum of $100.00 [per 

acre] as a finder=s fee. By execution of this lease, Lessor consent[s] and . . . 

agrees to the payment of said finder=s fee.@ This addendum also has “SIGNED 

FOR IDENTIFICATION” signature blocks for the Coomers as lessors and for Jato 

as lessee. 

After receiving the updated lease and Supplemental Addendum, Lucas 

informed King via email on November 26, 2007 that she had received the 

updated lease, had gotten it notarized, and would mail it back to him that day.

3

After King did not receive the signed lease, he emailed Lucas requesting 

 

3Appellees attached to their motion for summary judgment emails between

Lucas and King. 
5

verification that she had mailed the lease because he was “concerned it was lost 

in the mail.” Lucas responded, “I had it dropped off at your office on 11-27 as we 

missed the mail on Monday.” 

Lucas stated in her deposition that she was out of town when she received 

the updated lease and that she had instructed her son and landman, Phillip 

Sterling, to take the lease documents to King=s office. Lucas could not remember 

if she had asked Sterling to sign the lease or if Appellees just had him sign the 

lease when he was at King’s office. She stated that Jason Potts had driven

Sterling to King’s office to drop off the signed lease. 

Sterling’s signature, as landman for Jato, appears in the signature blocks 

for lessee on the lease, Exhibit “A” to the lease, and the Supplemental 

Addendum. Sterling’s signature on the lease was notarized by Jason Potts on

November 27, 2007. Sterling did not initial each page of the lease in accordance 

with paragraph 20 of Exhibit “A.” The Coomers’ signatures appear on the 

signature blocks for lessors on the lease, Exhibit “A” to the lease, and the 

Supplemental Addendum. Their signatures on the lease were notarized by 

King’s legal assistant on December 3, 2007. 

King’s legal assistant emailed Lucas on December 6, 2007, stating that 

King would record the original lease and requesting that the bonus check be 

payable to the Coomers and the finder’s fee check be payable to King. On 
6

January 2, 2008, King filed the executed lease, including Exhibit “A,” in the

Official Records of Parker County. 

The Coomers never received their bonus, and King never received his 

finder’s fee. On January 22, 2008, Appellees sent a written demand to Lucas for 

payment of the Coomers= bonus and King=s finder=s fee. On May 21, 2008, 

King=s attorney sent a subsequent written demand to Lucas for the payment of 

the bonus and finder=s fee, as well as notice of Appellees= intent to file a lawsuit if 

the fees were not paid. 

On June 11, 2008, Appellees filed their original petition. Appellees then 

filed their motion for summary judgment alleging that Lucas had breached the 

contract and that no genuine issue of material fact exists as to their breach of 

contract claim. In the response to the motion for summary judgment, Lucas 

asserted that Appellees provided no evidence that she had accepted the lease 

under paragraph 20 of Exhibit “A.” After a hearing, the trial court granted 

Appellees= motion for summary judgment, finding that there was no genuine 

issue of material fact as to Appellees= breach of contract claim and that the lease 

was an enforceable contract. This appeal followed.

III. STANDARD OF REVIEW

In a summary judgment case, the issue on appeal is whether the movant 

met the summary judgment burden by establishing that no genuine issue of 
7

material fact exists and that the movant is entitled to judgment as a matter of law. 

Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 

289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo. 

Mann Frankfort, 289 S.W.3d at 848 (Tex. 2009). 

We take as true all evidence favorable to the nonmovant, and we indulge 

every reasonable inference and resolve any doubts in the nonmovant=s favor. 

20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008); Sw. Elec. Power Co. v. 

Grant, 73 S.W.3d 211, 215 (Tex. 2002). We consider the evidence presented in 

the light most favorable to the nonmovant, crediting evidence favorable to the 

nonmovant if reasonable jurors could, and disregarding evidence contrary to the 

nonmovant unless reasonable jurors could not. Mann Frankfort, 289 S.W.3d at 

848. We must consider whether reasonable and fair-minded jurors could differ in 

their conclusions in light of all of the evidence presented. See Wal-Mart Stores, 

Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006); City of Keller v. Wilson, 168 

S.W.3d 802, 822B24 (Tex. 2005). 

The summary judgment will be affirmed only if the record establishes that 

the movant has conclusively proved all essential elements of the movant=s cause 

of action or defense as a matter of law. City of Houston v. Clear Creek Basin 

Auth., 589 S.W.2d 671, 678 (Tex. 1979).

IV. SUMMARY JUDGMENT WAS PROPER
8

Lucas’s three points on appeal center around paragraph 20 of Exhibit “A” 

to the lease. That paragraph provides that “upon acceptance” of the lease, 

Lucas, as lessee, shall initial each page of the lease and Exhibit “A,” file them in 

the county records of Parker County, and provide King with a certified copy of the 

lease by “4:30 P.M. November ___, 2007.” Paragraph 20 further specifies that if 

Lucas fails to provide King with a certified copy of the lease, “then [the] offer shall 

be rescinded and the lease offer shall be ipso facto withdrawn.” According to 

paragraph 20, “[t]imely filing and delivery of the lease shall constitute acceptance 

by [Lucas],” and “[f]ailure to file and deliver the certified copy of the lease shall be 

prima facie proof that the lease was declined by the Lessee.” We will address 

each of Lucas’s points separately below.

A. Lucas’s Acceptance of the Lease

Lucas argues in her first issue that Appellees failed to present evidence 

that she accepted the lease in the manner set forth in paragraph 20 of Exhibit 

“A.” According to Lucas, she could only accept the lease by (1) initialing each 

page of the lease and Exhibit “A,” (2) filing the lease in the Parker County 

records, and (3) providing King with a certified copy of the lease. 

A valid contract exists when the following elements are present: (1) an 

offer, (2) an acceptance in strict compliance with the terms of the offer, (3) a 

meeting of the minds, (4) each party’s consent to the terms, and (5) execution 

and delivery of the contract with the intent that it be mutual and binding. Williams 

v. Unifund CCR Partners Assignee of Citibank, 264 S.W.3d 231, 236 (Tex.
9

App.—Houston [1st Dist.] 2008, no pet.). Unless otherwise indicated, an offer 

may be accepted in any manner reasonable under the circumstances. Horton v. 

DaimlerChrysler Fin. Servs. Ams., L.L.C., 262 S.W.3d 1, 6 (Tex. App.—

Texarkana 2008, no pet.) (citing Restatement (Second) of Contracts § 30 

(1981)). But when an offer prescribes the manner of acceptance, its terms in this 

respect must be complied with to create a contract. Town of Lindsay v. Cooke 

County Elec. Coop. Ass’n, 502 S.W.2d 117, 118 (Tex. 1973), cert. denied, 416 

U.S. 970 (1974). The use of a different method of acceptance by the offeree will 

not be effectual unless the original offerors thereafter manifests their assent to 

the other party. Id.

Here, paragraph 20 provides the manner by which Lucas was to accept 

the lease: “Timely filing and delivery of the lease shall constitute acceptance by 

the lessee.” Although strict compliance with the manner of acceptance is 

generally required to form a binding contract, Lucas accepted the lease in a 

different manner—by having Sterling sign the lease documents on behalf of Jato 

(without initialing each page) and deliver the original lease (rather than a certified 

copy) to King without filing it. See id. And the Coomers manifested their assent 

to Lucas’s “different” manner of acceptance by subsequently signing the 

documents as lessees, notifying Lucas that they would file the lease, and filing 

the lease in the Official Records of Parker County. See Padilla v. LaFrance, 907 

S.W.2d 454, 460 (Tex. 1995) (holding that offeror’s letter to offerree indicating a 

consummated settlement agreement showed his assent to offeree’s alteration of 
10

the mode of acceptance set out in original offer). Consequently, the summary 

judgment evidence establishes that Lucas accepted the lease. See Town of 

Lindsay, 502 S.W.2d at 118.

Taking as true all evidence favorable to Lucas, as the nonmovant, and 

indulging every reasonable inference and resolving any doubts in her favor, we 

hold that the summary judgment evidence establishes that she accepted the 

Commers’ offer, albeit in a different manner than that specified in the lease,

agreeing to be bound by the terms of the lease, and that the Coomers assented 

to Lucas’s alternative acceptance of the lease. See 20801, Inc., 249 S.W.3d at 

399; Sw. Elec. Power Co., 73 S.W.3d at 215; see also Williams, 264 S.W.3d at

236. We overrule Lucas’s first issue.

B. Terms of Acceptance Not Conditions Precedent

In her second issue, Lucas argues, alternatively, that the provisions of 

paragraph 20—requiring her, upon acceptance, to initial each page of the lease, 

file it, and give a copy to King—were conditions precedent to the lease and that 

Appellees failed to present evidence that those conditions were satisfied. 

A condition precedent is an event that must happen or an act that must be 

performed before a right can accrue to enforce an obligation. Centex Corp. v. 

Dalton, 840 S.W.2d 952, 956 (Tex. 1992); Calce v. Dorado Exploration, Inc., 309 

S.W.3d 719, 742 (Tex. App.—Dallas 2010, no pet.). A condition precedent 

relating to the formation of a contract is a condition that must be performed 

before the parties= agreement will become a binding, enforceable contract or a 
11

condition that must be fulfilled before a duty to perform an existing contract 

arises. Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex. 

1976). A covenant, as distinguished from a condition precedent, is an agreement 

to act or refrain from acting in a certain way. Landscape Design & Constr., Inc. v. 

Harold Thomas Excavating, Inc., 604 S.W.2d 374, 376 (Tex. Civ. App.—Dallas 

1980, writ ref’d n.r.e.). 

In order to make performance specifically conditional, a term such as “if,”

“provided that,” “on condition that,” or some similar phrase of conditional 

language must normally be included. Criswell v. European Crossroads Shopping 

Ctr., Ltd., 792 S.W.2d 945, 948 (Tex. 1990) (op. on reh’g). If no such language is 

used, the terms will be construed as a covenant in order to prevent a forfeiture. 

Id.; Calce, 309 S.W.3d at 742. Although there is no requirement that such 

phrases be utilized, their absence is probative of the parties’ intention that a 

promise be made, rather than a condition imposed. Hohenberg Bros. Co., 537 

S.W.2d at 3; Gulf Constr. Co. v. Self, 676 S.W.2d 624, 627 (Tex. App.—Corpus 

Christi 1984, writ ref’d n.r.e.). When the intent of the parties is doubtful or when

a condition would impose an absurd or impossible result, the agreement will not 

be interpreted as creating a condition. Calce, 309 S.W.3d at 742; see also

Criswell, 792 S.W.2d at 948; Hohenberg Bros. Co., 537 S.W.2d at 3. As 

forfeitures are not favored, finding a condition precedent should be avoided if 

another reasonable reading of the contract is possible. Criswell, 792 S.W.2d at 
12

948; Schwarz-Jordan, Inc. of Houston v. Delisle Constr. Co., 569 S.W.2d 878, 

881 (Tex. 1978). 

Paragraph 20’s requirements that “upon acceptance,” a representative of 

Jato initial each page of the lease, record an original in the county records, and 

deliver a copy to King are not conditions precedent to the effectiveness of the 

lease; rather, they are covenants that Jato was to perform “upon acceptance.” 

Landscape Design & Constr., Inc., 604 S.W.2d at 376. Paragraph 20 does not 

contain conditional language such as “if,” “provided that,” or “on condition that.” 

See Criswell, 792 S.W.2d at 948. Rather, it sets out actions Jato promised to 

take upon acceptance of the terms of the lease. To accept Lucas’s contention 

that initialing each page of the lease, filing the original in the official records of 

Parker County, and delivering a certified copy to King were conditions precedent 

to the validity of the lease would lead to an absurd result when the summary 

judgment evidence shows that Lucas accepted the terms of the lease documents

and that, at Lucas’s direction, Sterling executed the lease on behalf of Jato and 

delivered the executed lease to the Coomers. See Hohenberg Bros. Co., 537 

S.W.2d at 3; Calce, 309 S.W.3d at 742, 747; see also Criswell, 792 S.W.2d at 

948 (explaining that courts must avoid a construction of the contract that would 

impose a condition precedent creating a forfeiture if another reasonable reading 

of the contract is possible). The summary judgment evidence shows that Lucas 

informed King via email that she had received the lease, had gotten it notarized, 

and would mail it to him; that Sterling signed the lease documents on behalf of 
13

Jato, had his signature notarized, and, at Lucas’s direction, delivered the signed 

documents to King’s office; that Lucas informed King via email that she had the 

executed lease delivered to his office on November 27, 2007; that King’s legal 

assistant informed Lucas via email on December 6, 2007 that King would record 

the original lease; and that King filed the executed lease, including Exhibit “A,” in 

the Official Records of Parker County. To allow Lucas to escape the binding 

effect of the lease documents would be absurd under the facts of this case, and it 

is highly doubtful that the parties would have intended such a harsh result. See

Hohenberg Bros. Co., 537 S.W.2d at 3 (explaining that when the intent of the 

parties is doubtful or when a condition would impose an absurd result, an 

agreement will not be interpreted as creating a condition). 

Taking as true all evidence favorable to Lucas, as the nonmovant, and 

indulging every reasonable inference and resolving any doubts in her favor, we 

hold that the summary judgment evidence establishes that paragraph 20 of 

Exhibit “A” to the lease does not set forth conditions precedent to the validity of 

the lease. See 20801, Inc., 249 S.W.3d at 399; Sw. Elec. Power Co., 73 S.W.3d 

at 215. We overrule Lucas’s second issue.

C. Lease Not Ambiguous

In her third issue, Lucas argues that summary judgment was not proper 

because paragraph 20 is ambiguous. 

When construing contracts and other written instruments, our primary 

concern is to ascertain the true intent of the parties as expressed in the 
14

instrument. NP Anderson Cotton Exch., L.P. v. Potter, 230 S.W.3d 457, 463 

(Tex. App.—Fort Worth 2007, no pet.). Lack of clarity does not create an 

ambiguity, and a contract is not ambiguous simply because the parties advance 

conflicting interpretations. Universal Health Servs., Inc. v. Renaissance 

Women’s Group, P.A., 121 S.W.3d 742, 746 (Tex. 2003); Columbia Gas

Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996). 

Rather, the issue of whether a contract is ambiguous is a question of law that 

must be decided by examining the contract as a whole in light of the 

circumstances present when the contract was entered into. Universal Health, 

121 S.W.3d at 746. An ambiguity arises only after the application of established 

rules of construction leaves an agreement susceptible to more than one 

meaning. See DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 

1999). But if the contract can be given a certain or definite legal meaning, it is 

not ambiguous and should be construed as a matter of law. Grain Dealers Mut. 

Ins. Co. v. McKee, 943 S.W.2d 455, 458 (Tex. 1997). “When the [contract] is not 

ambiguous on its face, extrinsic evidence may not be used to create an 

ambiguity.” Balandran v. Safeco Ins. Co. of Am., 972 S.W.2d 738, 745 (Tex. 

1998); see CenterPoint Energy Houston Elec., L.L.P. v. Old TJC Co., 177 

S.W.3d 425, 431 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

In this case, Lucas appears to argue that an ambiguity exists because 

paragraph 20’s requirements for her to accept the lease before she has any 

obligation to perform under the lease conflicts with the Supplemental 
15

Addendum’s requirement that she pay the bonus and finder’s fee amounts 

“[u]pon execution” of the lease. [Emphasis added.] We see no ambiguity. As we 

explained above, paragraph 20 sets forth the manner in which Lucas was to 

accept the lease and the actions she promised to take upon acceptance—initial 

each page of the lease, file it, and provide a certified copy to King. The 

Supplemental Addendum sets forth the parties’ agreement that King pay the 

Coomers a bonus fee and pay King a finder’s fee in the sums agreed to by the 

parties. We refuse to split hairs when, looking at the contract as a whole, the 

parties clearly intended that, upon reaching an agreement and entering into the 

lease agreement, they be bound by its terms, including the requirement that 

Lucas pay the bonus and finder’s fee provided for in the Supplemental 

Addendum. See NP Anderson Cotton Exch., L.P., 230 S.W.3d at 463. 

Taking as true all evidence favorable to Lucas, as the nonmovant, and 

indulging every reasonable inference and resolving any doubts in her favor, we 

hold that the lease is not ambiguous so as to preclude summary judgment. See 

20801, Inc., 249 S.W.3d at 399; Sw. Elec. Power Co., 73 S.W.3d at 215. We 

overrule Lucas’s third issue.

V. CONCLUSION

Having overruled Lucas’s three issues and having determined that 

Appellees conclusively proved that Lucas accepted the lease as a matter of law, 

that the provisions of paragraph 20 of Exhibit “A” to the lease are not conditions 

precedent to the validity of the lease, and that the lease is not ambiguous, and 
16

because Lucas does not challenge summary judgment as to the remaining 

elements of Appellees’ cause of action, we hold that the trial court did not err by 

granting summary judgment for Appellees. See Tex. R. App. P. 47.1; City of 

Houston, 589 S.W.2d at 678. We affirm the trial court=s judgment. 

SUE WALKER

JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

DAUPHINOT, J. filed a dissenting opinion.

DELIVERED: December 16, 2010
COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-09-00152-CV

JAN LUCAS D/B/A JATO OIL AND 

GAS

APPELLANT

V.

ROGER L. COOMER, VERNA E. 

COOMER, AND PHIL KING D/B/A 

KING AND KING

APPELLEES

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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

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DISSENTING MEMORANDUM OPINION1

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Paragraph 20 of the lease states that delivery and filing are required for 

Lucas to accept the lease. The lease further states that failure to file the lease is 

prima facie proof that Lucas did not accept the lease. Although the lease does 

not contain terms such as “if” or “on condition that,” paragraph 20 does 

 

1See Tex. R. App. P. 47.4.
2

specifically state that Lucas’s failure to perform these conditions would constitute 

a rejection of the offer and would result in the offer being rescinded.2 Paragraph 

20 is therefore a condition precedent to contract formation.3 As the parties 

moving for summary judgment on their breach of contract claim, the Coomers 

had the burden of proving that all conditions precedent had been satisfied.4

The lease does not state that Lucas herself must file the lease in order to 

indicate acceptance; it merely requires filing and is silent as to who must file it 

and how it must be filed. This provision makes no sense, however, if acceptance 

by Lucas could be demonstrated by the Coomers recording the lease. Because 

Lucas did not perform the conditions precedent, it is prima facie evidence that 

she rejected the offer expressed in the contract and addendum and, 

consequently, no contractual obligation on the part of either Lucas or the 

Coomers was ever created. 

As the majority notes, despite the language of paragraph 20, Lucas could 

have by her actions demonstrated her waiver of the condition precedent and 

acceptance of the lease. Although a contract may set out in its terms the manner 

 

2See Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 

(Tex. 1976). 

3See id.

4See Calce v. Dorado Exploration, Inc., 309 S.W.3d 719, 732 (Tex. App.—

Dallas 2010, no pet.).
3

by which the parties indicate acceptance, a different manner of acceptance will 

nevertheless be effective if the offeror assents to it.5 

In the case now before this court, the summary judgment evidence did not 

establish as a matter of law that Lucas had waived the condition precedent and 

accepted the contract by filing it or by performance. For that matter, the 

evidence did not establish as a matter of law that this provision was intended to 

benefit the Coomers; if it was not, they could not waive its effectiveness by 

assenting to a different method of acceptance.6 Only Lucas could agree to waive 

its effect if it was intended to benefit her. Whether the provision was intended to 

benefit Lucas, and if so, whether Lucas’s actions constitute a waiver of the 

condition precedent and, thus, acceptance of the lease are questions of fact. 

Because a genuine issue of material fact exists as to whether Lucas accepted 

the lease, I respectfully dissent.

LEE ANN DAUPHINOT

JUSTICE

DELIVERED: December 16, 2010

 

5See Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995); see also 

Horton v. DaimlerChrysler Fin. Servs. Ams., L.L.C., 262 S.W.3d 1, 6 (Tex. App.—

Texarkana 2008, no pet.) (noting that “[i]t is well established that acceptance may 

be shown by conduct”).

6See Joiner v. Elrod, 716 S.W.2d 606, 609 (Tex. App.—Corpus Christi 

1986, no writ) (“[A] party can waive [contract] provisions for his benefit.” 

(emphasis added)).