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PROVING EXISTENCE OF A CONTRACT AND BREACH OF CONTRACT

To prove an action for breach of contract, Plaintiff must establish an offer,
acceptance, mutual assent and mutuality of obligations supporting the agreement
.”
See Roman v. Roman, 193 S.W.3d 40, 50 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (identifying
elements of breach of contract claim).

The
essential elements in a suit for breach of contract are: (1) the existence of a valid contract; (2) the
plaintiff performed or tendered performance; (3) the defendant breached the contract; and (4) the plaintiff
was damaged as a result of the breach. Hussong v. Schwan's Sales Enters., Inc., 896 S.W.2d 320, 326
(Tex. App.--Houston [1st Dist.] 1995, no pet.).

For an enforceable contract to exist, the legal obligations and liabilities of the parties must be sufficiently
definite. See Searcy v. DDA, Inc., 201 S.W.3d 319, 322 (Tex.App.-Dallas 2006, no pet.). The
contract must
be certain and clear as to all essential terms or the contract will fail for indefiniteness. See Farone v. Bag'n
Baggage, Ltd., 165 S.W.3d 795, 801 (Tex.App.-Eastland 2005, no pet.). Although Texas courts favor
validating contracts, [COURTS] may not create a contract where none exists. Id. at 802.

The elements of a valid contract are (1) an offer, (2) an acceptance, (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. Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.-Houston [1st Dist.]
2002, pet. denied). The elements of written and oral contracts are the same and must be present for a
contract to be binding. Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555 (Tex. App.-Houston [14th Dist.]
2002, no pet.).

For an agreement to be enforceable, there must be a meeting of the minds with respect to its subject
matter and essential terms. Id. at 556. The determination of a meeting of the minds, and thus offer and
acceptance, is based on the objective standard of what the parties said and did. Id. The execution of a
contract includes the performance of all acts necessary to render it complete as an instrument. Verson
Allsteel Press Co. v. Carrier Corp., 718 S.W.2d 300, 303 (Tex. App.-Tyler 1985, writ ref'd n.r.e.) (per
curiam).

The question of whether a contract contains all the essential terms for it to be enforceable is a question of
law. Beal Banks, S.S.B. v. Schleider, 124 S.W.3d 640, 654 n.8 (Tex. App.-Houston [14th Dist.] 2003, pet.
denied). What terms are material or essential to a contract are determined on a contract-by-contract basis,
depending on the subject matter of the contract at issue. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.
W.2d 218, 221 (Tex. 1992) ("Each contract should be considered separately to determine its material
terms."). Three essential elements of a contract for sale are "(1) the thing sold, which is the object of the
contract; (2) the consideration or price to be paid for the thing sold; and (3) the consent of the parties to
exchange the thing for the price." John Wood Group USA, Inc. v. ICO, Inc., 26 S.W.3d 12, 20 (Tex. App.-
Houston [1st Dist.] 2000, pet. denied).

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