Court of Appeals of Texas, Amarillo.

Diana GARCIA, Appellant

v.

DAIRY QUEENS OF WEST TEXAS, INC., Appellee

NO. 07-97-0154-CV

|

Aug. 17, 1998.

Before BOYD, C.J., DODSON and REAVIS, JJ.

OPINION

DODSON

*1 Diana Garcia (Garcia), appellant, appeals a final summary judgment rendered for Dairy Queens of West Texas, Inc. (Dairy Queen), appellee, in her breach of contract action. By five points of error, Garcia contends that there were material fact issues as to the existence of a written agreement providing for payment of losses and expenses due to an on-the-job injury, as to the existence of an oral agreement providing the same, as to the existence of consideration for such agreement, as to the existence of an implied in fact contract, and as to the existence of an implied in law contract. We affirm.

On January 10, 1991, Garcia, an employee of Dairy Queen, was injured in a fall while working at a restaurant in Plainview, Hale County, Texas. As a result, she had three surgeries and was off work for nearly two years. Dairy Queen, through The Insurance Alliance, paid her medical expenses and 26 weeks of “voluntary wage compensation.” Garcia returned to work at Dairy Queen in October or November of 1992 when her physician released her from treatment. She worked for two weeks, then quit to work for her father’s grocery store. She did not make any further claims for medical expenses until she tried to fill a prescription in September of 1994, almost two years after she quit Dairy Queen. The Insurance Alliance and Dairy Queen denied coverage at that time. Garcia filed suit, and ultimately the trial court granted Dairy Queen summary judgment.

Summary judgment is only proper when the movant establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). The burden is on the movant to conclusively prove each element of an affirmative defense or to conclusively rebut at least one element of a plaintiff’s cause of action. International Union U.A.W. Local 119 v. Johnson Controls, Inc., 813 S.W.2d 558, 563 (Tex.App.-Dallas 1991, writ denied). In reviewing summary judgments, the appellate court views evidence favorable to the non-movant as true. Every reasonable inference must be indulged in favor of the non-movant, and any doubts are resolved in the non-movant’s favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). Once the movant establishes as a matter of law the right to summary judgment, the burden shifts to the non-movant to present any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979). Finally, where the motion for summary judgment alleges more than one basis of support and the order granting judgment is silent as to the reason for granting the motion, the appellant must show each independent ground alleged in the motion is insufficient to support summary judgment. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex.1989). The judgment must be affirmed if any of the theories are meritorious. Id.

*2 Garcia raises two points of error contending that there were material fact issues as to the existence of a written or an oral agreement providing for payment of losses and expenses due to an on-the-job injury. By her third point of error, Garcia alleges that there were material fact issues concerning the existence of consideration for such contract. By her fourth point of error, Garcia contends that there were material fact issues regarding the existence of an implied in fact contract for the payment of losses and expenses due to an on-the-job injury. However, Garcia does not address at least two of the grounds raised by Dairy Queen in its motion for summary judgment. Beyond denying the existence of any agreement, Dairy Queen asserted that the terms of any such agreement were too indefinite to create a legally binding contract, and alternately that Dairy Queen had fulfilled any obligations it had under any agreement. We conclude that these two grounds were meritorious and that Garcia has not shown them insufficient.

By its summary judgment proof, Dairy Queen denied the existence of any written agreement. After her injury, Garcia obtained from The Insurance Alliance a one page summary of an insurance plan (the “VEBA plan”). However, the document was an undated, unsigned one page summary, and not the plan itself. There is no evidence that this summary represents a written agreement between Garcia and Dairy Queen. Additionally, both parties presented evidence to the trial court that Garcia’s store manager told her that if the employees were injured on-the-job, Dairy Queen would “take care” of them. Nevertheless, it is uncontroverted that Garcia did not discuss the terms of any coverage with her manager or anyone else.¹

To be legally binding, a contract must be sufficiently definite in its terms so that a court can understand what the promisor undertook. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992). The material terms must be agreed upon before a court can enforce the contract. Id. A party cannot accept an offer so as to form a contract unless its material terms are reasonably certain. Texas Oil Co. v. Tenneco, Inc., 917 S.W.2d 826, 830 (Tex.App.-Houston [14th Dist.] 1995) rev’d on other grounds, 958 S.W.2d 178 (Tex.1997). Generally, Texas courts prefer to validate transactions rather than void them. See Dahlberg v. Holden, 150 Tex. 179, 238 S.W.2d 699, 701 (1951). However, a court may not create a contract where none exists. Guzman v. Acuna, 653 S.W.2d 315 (Tex.App.-San Antonio 1983, writ dism’d w.o.j.).

The VEBA plan summary is the only evidence indicating what the terms of any agreement, written or oral, might be. According to Dairy Queen’s uncontroverted evidence, the VEBA plan was an insurance policy made available to its employees at some time after Garcia was injured. Garcia does not contend that she ever completed the application for coverage under the VEBA plan. Instead, she merely offered the unsigned, undated description of an insurance plan she learned about after her injury as evidence that she had a written contract with Dairy Queen. An unsigned summary of a policy that was not even available until after she was injured has no bearing on whether she had an agreement with Dairy Queen.

*3 Likewise, Garcia asserts that statements were made to her that Dairy Queen would “take care” of her. However, statements such as “[w]e will take care of you” and “[w]e will look after you” do not specify the parameters of the obligation. University Nat’l Bank v. Ernst & Whinney, 773 S.W.2d 707, 710 (Tex.App.-San Antonio 1989, no writ). Absent any writing or oral communications evidencing the terms of the agreement, we cannot conclude that there is a material issue of fact regarding the existence of an express contract, oral or written.

Nevertheless, Dairy Queen did act in compliance with the terms of the VEBA summary. The summary indicates that the VEBA plan “covers the cost of medical diagnosis and treatment for any injury that occurs as a direct result of [an] … on-the-job injury.” The parties do not dispute that Garcia’s slip and fall injury was on-the-job. The plan summary also provides for “income replacement benefits” if a treating physician certifies in writing that the covered individual is unable to return to work due to the on-the-job injury. These benefits would last a maximum of twenty-six weeks. The summary judgment evidence shows that Dairy Queen provided Garcia with twenty-six weeks of “voluntary wage compensation.” Since Dairy Queen acted in compliance with the terms of the VEBA summary, Garcia asserts that there is a material fact issue as to the existence of an implied in fact contract. However, the uncontroverted evidence shows that Dairy Queen complied fully with the terms of any potential implied agreement. Therefore, there could be no breach of any agreement, even if it existed.

A contract may be implied from the dealings between parties where the facts show a meeting of the minds on the terms of the contract. Ishin Speed Sport, Inc. v. Rutherford, 933 S.W.2d 343, 348 (Tex.App.-Fort Worth 1996, no writ). The difference between express and implied in fact contracts is in the character and manner of proof required to establish them. Haws & Garratt G. Con., Inc. v. Gorbett Bros. Weld. Co., 480 S.W.2d 607, 609 (Tex.1972); E-Z Mart Stores v. Hale, 883 S.W.2d 695, 699 (Tex.App.-Texarkana 1994, writ denied). Assuming arguendo that in the case before us there was an implied in fact agreement, the terms of that agreement would be governed by the VEBA summary. Both parties presented evidence showing that Garcia’s medical expenses for her three surgeries were paid, and that she received wage compensation for twenty-six weeks. Garcia did not assert that she was entitled to any further relief, and it is clear from the face of the VEBA summary that she received the maximum benefit of its terms. Furthermore, the VEBA summary states that the plan covers “all employees of [Dairy Queen] who work in Texas….” Thus, any coverage ended when she quit in 1992. Clearly, the prescription she tried to fill in September 1994 was outside the scope of any conceivable term that could be implied by the VEBA summary.

*4 In summary, Garcia does not and did not enunciate what the terms of the alleged express contract were, particularly in regard to those terms which would serve as a basis for any recovery against Dairy Queen. Even if we apply the terms of the VEBA summary as the terms of an express or implied in fact contract, it is uncontroverted that Garcia received the full benefit of the plan. Further, any coverage would have ended by those terms when she left Dairy Queen’s employment. Once Dairy Queen produced evidence asserting that there were no terms of an agreement definite enough to create a legally binding contract, it was incumbent on Garcia to produce some evidence to the contrary. Garcia’s evidence shows that she never spoke to anyone about any terms of coverage, and she does not even allege that she was covered by the VEBA plan, except possibly via an implied in fact theory. Either the agreement fails for indefiniteness, or in the only other scenario, Dairy Queen complied with the terms of the agreement. In both cases, at least one element of Garcia’s breach action was conclusively negated.² Consequently, we overrule Garcia’s first four points of error.

Garcia’s fifth and final point of error asserts that there were material fact issues regarding the existence of an implied in law contract for the payment of losses and expenses due to an on-the-job injury. Garcia contends that even absent an express or implied in fact contract, she is entitled to relief because “[i]t would be unconscionable for Dairy Queen to make assurances that its employees … would be covered for losses and expenses resulting from on-the-job injuries, and then, contrary to their representations, deny payment.” Because the evidence shows that Dairy Queen did, in fact, comply with any assurances it might have made, we conclude that the trial court correctly determined that there were no material fact issues regarding an implied in law contract.

A contract implied in law, or quasi-contract, is an obligation created by law without expression of assent by the parties, and may even be against a clear expression of dissent. Ferrous Products Co. v. Gulf States Trading Co., 160 Tex. 399, 332 S.W.2d 310, 312 (1960). A contract implied in law may be imposed to avoid unjust enrichment. Riverside, Inc. v. Gulf States Utilities Co., 289 S.W.2d 945, 949 (Tex.Civ.App.-Beaumont 1956, writ ref’d n.r.e.). The only payment Dairy Queen denied Garcia was on the single prescription she tried to fill nearly two years after she was released from treatment by her doctor and quit working for Dairy Queen. During her employment, Dairy Queen paid the costs of the surgeries and the associated medical expenses until Garcia was released back to work by her physician. Quite simply, there are no circumstances which would call for the imposition of a constructive or implied in law contract. Accordingly, we overrule Garcia’s fifth point of error.

*5 In conclusion, we overrule each of Garcia’s five points of error. The judgment of the trial court is affirmed.

	Footnotes
1		Garcia also relied on two letters and a form titled “Notification of No Workers’ Compensation Insurance,” claiming that statements in them gave rise to a fact issue regarding the existence of an express contract. However, none of the three documents provide any terms of any agreement.
2		The elements of a breach of contract action are that a contract existed, which created duties between the parties, that a party breached a duty, and damages resulted. Cadle Co. v. Castle, 913 S.W.2d 627, 631 (Tex.App.-Dallas 1995, writ denied). In the case before us, if the terms are nonexistent or so indefinite as to be unenforceable, then there is no contract. Even assuming the VEBA summary constitutes the identifiable terms, Dairy Queen conclusively showed that there was no breach.