The Levin Law Group v. Ernesto De Andre Sigmon, Fourteenth Court of Appeals, Houston, Texas
w]here an offeree takes the benefit of offered services with reasonable opportunity to reject them”).
Here, Sigmon did not take the benefit of the offered services with a “reasonable opportunity” to reject them. Ultimately, he did not take the benefit of the offered services at all. Further, the confirmation letter, mediation rules form, and mediation agreement form were faxed to Sigmon on January 29, 2008. Six days later, on Monday, February 4, 2008, Sigmon notified LLG that his client would be unable to physically attend the mediation. Thus, Sigmon's purported lack of objection to the terms of the mediation does not indicate acceptance of LLG's mediation rules. See Tex. Ass'n of Counties County Gov't Risk Mgmt. Pool, 52 S.W.3d at 132; Advantage Physical Therapy, Inc., 165 S.W.3d at 26.
Additionally, it is uncontroverted that Sigmon was willing to attend the mediation on behalf of his client, and his client agreed to be available throughout the mediation by telephone. Levin and Levine both stated in their affidavits that they were willing to conduct the mediation under these conditions. The parties agree that Fogel objected to this format, and the mediation was cancelled as a result of Fogel's objection.
Thus, if the rules for mediation require “personal attendance” as Levin states in his affidavit, Sigmon objected to the offered mediation terms by notifying LLG that his client would not be able to personally attend the mediation. If anything, this objection to LLG's mediation terms could be deemed a counter-offer by Sigmon, which Levin and Levine accepted, but Fogel rejected. See, e.g., Lewis v. Adams, 979 S.W.2d 831, 834 (Tex.App.-Houston