Dennis Malone appeals the trial court’s grant of summary judgment in favor of Saxony Cooperative Apartments, Inc., et al. (Saxony) in a breach of contract cause of action for the sale of a proprietary lease by Saxony to Malone. The trial court ruled that no enforceable contract for the sale of an apartment unit existed between Malone and Saxony. Malone submitted a timely appeal to this court arguing primarily that the trial court erred in reaching that decision. 1 We affirm.
I. FACTUAL SUMMARY
Saxony is a cooperative that owns a high-rise building located at 1801 Clydesdale Place, N.W. in Washington, D.C. The *727 shareholders lease their apartment units pursuant to a proprietary lease. Malone has resided in the high-rise complex, in unit 420, since 1990. 2
On December 15, 1993, the Board of Directors terminated а proprietary lease to Joseph Miles, who resided in unit 421. In March of 1994, a bid was made to purchase the proprietary lease for unit 421 by Clayton Scott. However, without further mention of Scott’s prior offer, the minutes of the Board’s meeting of April 27, 1994 reflect that an offеr of $19,700.00 was made by appellant, Dennis Malone, to purchase the proprietary lease for the same unit. Malone proffers that his offer was presented to the Board in written form and provided all the terms necessary to form a binding agreement. The substancе of the letter is as follows:
I would like to propose to the Board that I be allowed to purchase unit number 421 for the sum of $19,700. As you know, this unit has been on the market for over nine months and has not sold. During this time the Saxony has not received payments and the unit is in substantial arrearage. The unit itself is in very poor condition. If the unit is not sold soon the Saxony will be forced to renovate and market this unit — taking an undisclosed amount of time as the arrearage grows. I pledge to merge these two units 421 and 420 into one using Board financing at the rate of one interest рoint above current neb rates for new loans in this building, closing costs to be paid by the seller and settlement to occur within 30 days of Board approval.
In response to Malone’s offer, the Board passed a unanimous motion “to accept if the units ar[e] to be merged within thirty days after settlement.” Malone’s letter and the language from the Board minutes constitute the entirety of the writings between the two parties.
Malone asserts that he contacted the managing agent for the Saxony Cooperative within two weeks of the Boаrd meeting to arrange for settlement on the unit. According to Malone, he was told that the unit was in probate and, therefore, settlement could not occur at that túne.
In May, the Board voted to place a hold on Malone’s bid because Scott had renewеd his offer to purchase the unit for $20,000. Scott, however, never closed on the unit and it remained vacant. There is no indication in the record that the Board had any further discussions with Malone during this time period. One year later, in April 1995, the Board accepted an offer fоr $25,000 from another prospective purchaser, but that sale also never materialized. After this attempt failed to sell the unit, Saxony adopted a more aggressive sales approach, contracting with Weiehert Realtors to market its vacant units. As part оf this effort to more aggressively market its available apartment units, unit 421 was renovated as a model unit. Despite living next door to unit 421, Malone did not seek to speak with the Board regarding the renovations until sometime during the last quarter of 1996, after the renovations were complete. According to Malone, he didn’t have an opportunity to speak with the Board about his concerns at that time because he was out of town when the Board last met in 1996. Malone, however, did attend a Saxony Board meeting in February of 1997, to express his concerns regarding Saxony’s renovations of unit 421 and its impact on his contract to purchase the lease. At that time, Malone alleges that he first learned that the Board was attempting to sell the unit.
Malone sent the Board a letter requesting $5,000 to release Saxony frоm his claims of breach of contract and breach of fiduciary duty. Saxony replied that no contract existed between Saxony and Malone for the sale of the unit and that he was not entitled to damages. Malone in *728 stituted this law suit against Saxony on October 20, 1997, for breаch of the contract.
II. STANDARD OF REVIEW
The disposition of this case on appeal is governed by the oft-repeated standard of review for a grant of summary judgment. We review the grant or denial of a summary judgment motion
de novo. See Walton v. District of Columbia,
III. ANALYSIS
Malone contends that the trial court erred in ruling, as a matter of law, that he did not enter into a valid and binding contraсt with Saxony for the purchase of the proprietary lease for unit 421. In support of his contention, Malone offers two arguments. First, he argues that a binding contract was formed when his offer to purchase the proprietary lease for unit 421 was accepted by Sаxony on April 27,1994.
Despite Malone’s argument that his offer to purchase unit 421 was accepted by Saxony during its board meeting on April 27, 1994, Saxony’s response to Malone’s offer which was conditioned on a promise from Malone to merge unit 421 with his unit within 30 days after settlement was not аn acceptance at all but constituted a counteroffer. The law is well settled that a statement purporting to accept an offer which contains a new material term operates as a counteroffer and must be accepted by the original offeror in order to form a binding contract.
See Dunn v. Shane,
Indeed, to form a contract the offeree must convey to the offeror his acceptance of the offer. Malone concedes that there is no writing that evinces his acceptance of Saxony’s counteroffer, however, he contends on appeal that he accepted Saxony’s counteroffer when he contacted Saxony’s management agent to inquire аbout a closing date for the transaction. In support of this contention, Malone points to the affidavit he submitted to the trial court that alleges he contacted Saxony’s management agent after the April 27th meeting and indicated his willingness to go forward with the settlement. 3 Es *729 sentially, Malone contends that contacting Saxony to indicate his desire to go to settlement was sufficient to accept Saxony’s counteroffer.
In support of his argument that his conduct was sufficient to accept Saxony’s counteroffer, Malone рroffers one case,
Tracy v. Disman,
The issue in that case was not whether a binding contact had been formed but when. We held that the request for additional earnest money was a counteroffer and that only when the full $500.00 deposit was tendered did a contract come into existence between the two parties. See id at 219. We determined that the very terms of the cоunteroffer called for an acceptance by performance, that performance being the deposit of an additional $250.00. Upon the purchasers satisfying that obligation, we held a contract -was formed.
Malone contends that by contacting Sаxony’s management agent to seek a settlement date, he like the purchasers in
Tracy,
indicated his acceptance of the counteroffer. However, it is the offeror who determines the manner of acceptance.
See Flack v. Laster,
For there to be an enforceable contract, there must be mutual assent of each party to all the essential terms of the contract.
See Baker,
This mutuality of assent is often referred to as a “meeting of the minds.”
See id.
“The failure to agree on or even discuss an еssential term of a contract may indicate that the mutual assent required to make or modify a contract is lacking.”
Owen v. Owen,
Saxony’s insistence that the units be merged within thirty days of settlement was a material term which required an acceptance in the form of a promise of performance in order to form a binding contract. Thus, in light of Malone’s failure to communicate to Saxony his agreement to merge the units within thirty days of settlement, a material term of the contract was not assented to by both parties, and no contract can be sаid to have been formed. “[T]he party asserting the existence of a contract has the burden of proof on that issue.”
Baker,
Accordingly, the judgment of the Superior Court is
Affirmed.
Notes
. Additionally, Malone alleges that the directors of Saxony were negligent and breached their fiduciary duty to him, as a shareholder, and are individually liable for their negligence. However, Malone does not have standing to bring such a claim directly. Malone's claim is for injuries sustained to the cooperative, and such a claim can only be brought in the form of an indirect derivative suit on bеhalf on the cooperative.
See
Super. Ct.Civ.R. 23.1;
Bazata v. National Ins. Co.,
. Malone served on the Board of Directors of Saxony apartment complex from 1990 until March 1994. He also served as President of the Board in December of 1993.
. Despite Malone's assertion at oral argument that he orally accepted Saxony’s counteroffer, Malone’s affidavit states only that he approached Saxony’s management to go to settlement. Malone's affidavit, the only offer of proof in the record, does not state that he verbally informed the managеment agent that he accepted the terms of the counteroffer or that he in fact agreed to merge the units within thirty days of settlement. Thus, we explore only Malone’s argument that he accepted the counteroffer when he inquired about the settlement date. We do not consider other theories of law, such as the doctrine of partial performance, which might permit the enforceability of an oral contract other
*729
wise barred by the statute of frauds.
See Hackney v. Morelite Constr.,