MEMORANDUM OF DECISION PERTAINING TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT1

BILL PARKER, Bankruptcy Judge.

ON THIS DATE the Court considered the Motion for Summary Judgment filed by the Plaintiff, Betsy Mowery ("Plaintiff"), in the above-referenced adversary proceeding, the response filed in opposition to the Motion by the Defendant, Shane O'Neal ("Defendant" or "Debtor"), and the Plaintiff's reply thereto. Upon due consideration of the pleadings, the proper summary judgment evidence submitted by the parties, and the relevant legal authorities, the Court concludes that the Plaintiff has failed to establish the existence of each essential element necessary to the formation of the contract at issue by which the Plaintiff could prevail as a matter of law on the grounds upon which the summary judgment request is based. Thus, the Plaintiff's Motion for Summary Judgment must be denied.2

Factual and Procedural Background3

In or around January 2014, the Plaintiff and Defendant became acquainted through the website, Match.com.4 Following these online communications, the two met in person several times.5 Their relationship developed and the couple soon engaged in sexual intercourse.6 Later that year the Plaintiff informed the Defendant she was experiencing genital health issues, and at that time, the Defendant disclosed to the Plaintiff that he suffered from genital herpes.7 The Plaintiff was formally diagnosed with herpes for the first time on June 27, 2014.8 The Defendant had personally diagnosed his own condition back in 19759 and admits that he did not inform the Plaintiff that he was infected with herpes prior to the parties engaging in sexual contact.10 The couple's relationship eventually ended.11

The Plaintiff subsequently retained Mr. Wade Barrow as legal counsel, and on December 18, 2014, Mr. Barrow mailed a letter to the Defendant addressing several items: (1) Mr. Barrow's role as counsel to Ms. Mowery; (2) Defendant's failure to inform Ms. Mowery that he carried the herpes virus; (3) Defendant's transmission of the virus to Ms. Mowery; and (4) Mr. Barrow's authorization and offer to settle all of the Plaintiff's civil claims against the Defendant for the sum of $1,500,000.00. This settlement offer "remain[ed] open for 30 days from the date of [the] letter."12 The Defendant responded to Mr. Barrow via email on January 17, 2015, stating, in part, "I care for Ms. Mowery, therefore offer her a one-time payment of $500,000 to settle all civil claims with regards to this matter."13

On January 20, 2015, Mr. Barrow replied to the Defendant via email. The response reads:

Dear Mr. O'Neal:

The Defendant did not subsequently deliver a $500,000.00 cashiers check, nor tender any other amount to the Plaintiff or her counsel.

The Plaintiff subsequently filed suit15 against the Defendant in the 67th Judicial District Court of Tarrant County, Texas, ("State Court") on March 25, 2015.16 The suit alleged that the Defendant had breached the parties' settlement agreement, and in the alternative, the Plaintiff sought damages for the alleged infliction of the intentional tort.17 Following discovery,18 the Plaintiff filed a Motion for Summary Judgment in the State Court on or about May 22, 2015.19 The hearing on that motion was scheduled for August 6, 2015.20

The Defendant filed his voluntary petition for relief under Chapter 7 of the Bankruptcy Code in this Court on August 5, 2015,21 thereby staying the summary judgment hearing set for the following day in the State Court. His original bankruptcy schedules list Ms. Mowery as a creditor with a claim for damages of $1,500,000.00.22

In November 2015, the Plaintiff filed her complaint in the above-referenced adversary proceeding,23 asserting that the debt allegedly owed to her by the Defendant should be declared nondischargeable as a willful and malicious injury pursuant to 11 U.S.C. §523(a)(6). On February 25, 2016,24 the Plaintiff filed her Motion for Summary Judgment for a summary determination that the pre-lawsuit communications between the parties had resulted in a legally enforceable contract which settled the Plaintiff's claims for the sum of $500,000.00. The Defendant in his response disputes whether a binding agreement had ever been reached between the parties.25

Discussion

Standards for Summary Judgment

The Plaintiff brings her Motion for Summary Judgment in this adversary proceeding pursuant to Federal Rule of Bankruptcy Procedure 7056.26 That rule incorporates Federal Rule of Civil Procedure 56, which provides that summary judgment shall be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."27 The party seeking summary judgment always bears the initial responsibility of informing the court of the basis for its motion, identifying those portions of the "pleadings, depositions, answers to interrogatories, and affidavits, if any," which it believes demonstrates the absence of a genuine issue of material fact.28 The moving party asserting that a fact cannot be genuinely disputed must support that assertion by:

FED. R. CIV. P. 56(c).

The manner in which the necessary summary judgment showing can be made depends upon which party will bear the burden of persuasion at trial. If, as in this case, the burden of persuasion is on the moving party, "that party must support its motion with credible evidence-using any of the materials specified in Rule 56(c)-that would entitle it to a directed verdict if not controverted at trial."29 "When a summary judgment movant bears the burden of persuasion at trial (e.g., the movant is the plaintiff, or the movant is a defendant asserting an affirmative defense), she must establish all the essential elements of her claim (or defense)."30

If a summary judgment motion is properly supported, a party opposing the motion may not merely rest upon the contents of its pleadings, but rather must demonstrate in specific responsive pleadings the existence of specific facts constituting a genuine issue of material fact for which a trial is necessary.31 The substantive law will identify which facts are material.32 In its objection, the nonmovant must show more than a "mere disagreement" between the parties,33 or that there is merely "some metaphysical doubt as to the material facts."34 Neither are unsubstantiated, conclusory assertions in the response sufficient to raise a genuine issue of material fact.35 However, "[t]he issue of material fact which must be present in order to entitle a party to proceed to trial is not required to be resolved conclusively in favor of the party asserting its existence; rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial."36

The record presented is reviewed in the light most favorable to the nonmoving party.37 "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'"38 Further, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."39

In this case, the Plaintiff bears the ultimate burden of persuasion with regard to the existence of a binding settlement agreement. Therefore, the Plaintiff is entitled to a summary judgment only if there exists no genuine issue of material fact as to each essential element as to the formation of the contract at issue. To the extent that an actual controversy does exist over a disputed fact, the finder of fact resolves any doubts and draws all reasonable inferences in favor of the nonmoving party.40

Existence of Enforceable Contract

The Plaintiff's Motion: (1) asserts the existence of an enforceable settlement agreement — or contract — between the parties;41 (2) contends that the Defendant subsequently breached that settlement agreement; and (3) claims an entitlement to summary judgment against the Defendant for the purported settlement amount of $500,000.00.42 The Defendant contends there was no binding settlement agreement between the parties.43

The first step in order to prevail on a claim for breach of contract requires a plaintiff to demonstrate the existence of a valid contract.44 Under Texas law, a legally enforceable contract has six elements:

"Under the common law, an acceptance may not change or qualify the material terms of the offer, and an attempt to do so results in a counteroffer rather than acceptance. But the materiality of the altered term is key, and an immaterial variation between the offer and acceptance will not prevent the formation of an enforceable agreement. . . . The materiality of a contract term is determined on a contract-by-contract basis, in light of the circumstances of the contract."46

The December 18, 2014 letter from the Plaintiff's counsel to the Defendant clearly constituted an offer in search of an acceptance. The Plaintiff offered that, in exchange for $1,500,000.00, she would "settle all civil claims" against the Defendant for "withh[olding] this [health] information from [Plaintiff] and infect[ing] her with an incurable disease."47

The Defendant's response on January 17, 2015, was not an "acceptance in strict compliance with the terms of [the Plaintiff's original] offer."48 Instead, the Defendant set forth a counteroffer: "I care for Ms. Mowery, therefore offer her a one-time payment of $500,000 to settle all civil claims with regards to this matter."49 This was a classic counteroffer. "A counteroffer is an offer made by an offeree to [his] offeror, relating to the same matter as the original offer and proposing a substituted bargain differing from that proposed by the original offer."50 The Defendant's response related back to the same issues addressed in the Plaintiff's original offer, but instead provided for a reduced payment to release him from the same alleged civil claims. The Plaintiff at that point could have accepted those new terms, binding both parties to the terms of the Defendant's counteroffer. She did not.

Though Mr. Barrow's January 20, 2015 response to the Defendant's counteroffer purported to be an acceptance,51 it made at least two changes to the Defendant's counteroffer. It mandated a specific mode of payment — i.e., a cashier's check.52 It further imposed a specific deadline for performance by the Defendant — payment by February 20, 2015.53

As previously referenced, Texas law provides that "[a] material change in a proposed contract [or counteroffer] constitutes a counteroffer."54 While the materiality of a changed contractual term is determined on a contract-by-contract basis,55 "a contractual dealing with payment is always . . . a material term."56 In adding this material change to the Defendant's counteroffer, the Plaintiff's written response on January 20 became the second counteroffer in the negotiations, not an acceptance of the Defendant's counteroffer. Because the Plaintiff's January 20 response was a counteroffer rather than an acceptance, no binding contract was formed.57 Thus, as a matter of law, the Defendant could not have breached the purported settlement agreement because no contract or settlement agreement had actually been formed.

Conclusion

Accordingly, upon due consideration of the pleadings, the proper summary judgment evidence submitted, the material facts admitted to exist under Fed. R. Bankr. P. 56 and E.D. Tex. Local R. CV-56(c), the relevant legal authorities, and for the reasons set forth herein, the Court concludes Plaintiff, Betsy Mowery, is not entitled to summary judgment for breach of the purported settlement agreement between the parties because the summary judgment evidence failed to establish each element required to demonstrate that a legally enforceable contract was formed under Texas law. Accordingly, the Court concludes that the motion for summary judgment filed by the Plaintiff, Betsy Mowery, in the above-referenced adversary proceeding, must be denied. An appropriate order will be entered which is consistent with this opinion.