Coworkers Betty Domingo and Brenda Mitchell often played the Texas Lottery together. Their arrangement included an agreement to pool their money to purchase tickets and split their winnings equally. From time to time, Mitchell would purchase the lottery tickets prior to getting Domingo’s money, and Domingo would promptly reimburse Mitchell, win or lose. On March 9, 2006, Cindy Skidmore sent an e-mail to Mitchell asking if Mitchell was interested in joining a lottery group. Skidmore had formed LGroup, a Texas Limited Partnership, for the purpose of pooling money to play the lottery. On March 23, she sent a follow-up e-mail to members of the group, including Mitchell, notifying them of a meeting the next week at a local restaurant, during which members would pay their share into the pool and select numbers for the April 2006 lottery drawings. The e-mail also provided, “Tilf there is someone else you want to invite (& you feel pretty sure they won’t drop out) let me know.” Mitchell did not ask Skidmore if Domingo could participate in the April 2006 drawings According to Domingo, sometime after the March 23 e-mail, Mitchell invited her to participate in the LGroup for April 2006, specifically to play Lotto Texas and Mega Millions. When Domingo asked how much her contribution would have to be, Mitchell offered to cover for her and be reimbursed at a later time. On March 30, Mitchell and other members of the group met at a restaurant to pay their share for the April 2006 tickets and contribute their numbers. Domingo was not present at this meeting. Mitchell paid her $17 contribution, but she did not contribute for Domingo’s share. According to Mitchell’s deposition testimony, she did not have enough money to cover Domingo’s payment. On April 29, 2006, one of the tickets purchased by LGroup was a winner in the amount of $20,925,315.23. Domingo was excluded from any share of the winnings. As a result, she sued Mitchell for breach of contract. Mitchell filed a motion for summary judgment, alleging among other things, that she had never made a valid offer to Domingo, so they could not have entered into a contractual relationship. The trial court granted summary judgment for Mitchell, and Domingo appealed. Pirtle, Justice The threshold question is whether Mitchell and Domingo entered into a contract. … In determining the existence of an oral contract, courts look at the communications between the parties and the acts and circumstances surrounding those communications…. To determine whether there was an offer and acceptance, and therefore a “meeting of the minds,” courts use an objective standard, considering what the parties did and said, not their subjective states of mind. … To prove that an offer was made, a party must show (1) the offeror intended to make an offer, (2) the terms of the offer were clear and definite, and (3) the offeror communicated the essential terms of the offer to the offeree…. Mitchell alleges she did not make an offer to Domingo, but if she did, some of the material terms of the offer were lacking, making the contract invalid. She argues that price had not been agreed to and that Domingo failed to submit numbers for the drawings, which was an essential element of the agreement. In response, Domingo asserts that a reasonable price can be implied. She also which was an essential element of the agreement. In response, Domingo asserts that a reasonable price can be implied. She also asserts that submitting numbers was not an essential term of the agreement. We agree with Domingo. When all other elements of a contract have been met, a court may imply a reasonable price. According to Domingo’s affidavit, she was an experienced lottery player and estimated that playing Lotto Texas and Mega Millions for the month of April 2006 would have cost approximately $20 to $25. According to the evidence, Mega Millions was played every Tuesday and Friday and Lotto Texas was played every Wednesday and Saturday. Looking at a calendar for April 2006 at $1 per ticket, there were eight drawings for Mega Millions and nine drawings for Lotto Texas, for a total cost of $17 per participant. Thus, a reasonable price could have been implied. Whether a term forms an essential element of a contract depends primarily upon the intent of the parties. The question is whether the parties regarded the term as a vitally important ingredient of their bargain. Mitchell contends that submitting numbers was an essential term of the agreement and that without Domingo complying, there was no valid contract. However, the evidence suggests that submitting numbers for the April drawings was not an essential element of the contract. Copies of e-mails established that different numbers were selected on the day after the LGroup met for dinner to decide on a price and submit numbers. Members of the LGroup were also notified by e-mail and given a deadline of noon on April 1st in which to pick different numbers. Thus, any numbers submitted at the meeting on March 30th were an uncertainty as they were subject to being changed and thus, could not have been regarded by the parties as an essential element of the contract. According to Domingo, she and Mitchell frequently participated in lottery pools with co-workers. They occasionally covered for each other and when Mitchell would advance Domingo’s share, Domingo would promptly reimburse her. Shondra Stewart and Ellen Clemons, co-workers of Domingo and Mitchell, both gave deposition testimony that Cindy Ruff, another co-worker, claimed she was present when Mitchell agreed to cover for Domingo’s share of the April 2006 lottery tickets. This summary judgment evidence, coupled with Mitchell and Domingo’s conduct and course of prior dealings with one another, is sufficient to raise a genuine issue of material fact concerning the offer … element[] of the alleged contract between Mitchell and Domingo. ste se s Accordingly, the trial court’s judgment is reversed and the cause is remanded to the trial court for further proceedings.
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