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 2002-07

Floating Bulk Terminal, L.L. and Econo-Rail Corporation v. Coal Logistics Corporation, J. Patrick Dowd and Lillian Moore Dowd ( 2002 )


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  • Reversed and Rendered and Opinion filed July 25, 2002

    Reversed and Rendered and Opinion filed July 25, 2002.

     

     

    In The

     

    Fourteenth Court of Appeals

    ____________

     

    Nos. 14-01-00055-CV

     

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    FLOATING BULK TERMINAL, L.L.C. and ECONO-RAIL CORPORATION, Appellants/Cross-Appellees

     

    V.

     

    COAL LOGISTICS CORPORATION, J. PATRICK DOWD, and

    LILLIAN MOORE DOWD, Appellees/Cross-Appellants

     

      

     

    On Appeal from the 61st District Court

    Harris County, Texas

    Trial Court Cause No. 98-08965

     

      

     

    O P I N I O N

    A jury found that Econo-Rail Corporation breached an agreement to own a ship jointly with Coal Logistics Corporation.[1]  It awarded $70,000 in past damages and $2,000,000 in future damages on the breach of contract claim.  The jury also found that Econo-Rail breached a fiduciary duty to Coal Logistics, but did not enter a damages finding on this claim.  However, the jury did award attorneys’ fees.  The trial court rendered judgment on the verdict, awarded pre- and post-judgment interest on the past damages, post-judgment interest on the future damages, and attorneys’ fees.  We reverse and render judgment that Coal Logistics take nothing because we conclude there is no evidence the parties agreed on the essential terms necessary to create an enforceable contract.

    FACTUAL AND PROCEDURAL BACKGROUND

    In October 1997, Patrick Dowd, president of Coal Logistics, learned of an opportunity to buy a self-unloading cargo vessel.  On October 17, Dowd executed a memorandum of agreement to purchase the ship for $2.1 million.  But, the agreement required a 10 percent deposit within five banking days (by October 24).  Payment in full was due at the time of delivery, expected to be between November 17 and November 21, 1997.  If Dowd did not pay the purchase price as provided in the agreement, the sellers had the right to cancel the agreement; the deposit, together with interest earned, would be released to the sellers.

    Dowd approached William (“Bill”) Scott about joint investment and co-ownership.  Bill and his brother controlled a group of companies, among them Beaumont Bulk Terminals, Inc. (“BBT”), and Econo-Rail.[2]

    Dowd and Bill Scott met in Texas on October 22.  The next evening, Dowd drafted a contract, which provided in part:

    1) [Coal Logistics] hereby assigns all its rights and obligations under the Vessel Purchase Contract to the BBT Group.

    2) In consideration, a 33 percent interest in the new vessel[-]owning company shall be granted to [Coal Logistics].  Said minority interest shall be deemed to have been earned upon [Coal Logistics]’s payment of our one-third of the $210,000 (US) cash payment due on October 24th as the initial ten percent down payment under the Vessel Purchase Contract.

     

    Dowd’s proposed contract also contained a buy-out provision that would have allowed BBT, between July and December of 1998, to acquire Coal Logistics’s 33 percent interest for what appears to be $500,000.

    On October 24, Coal Logistics assigned BBT its interest in the memorandum agreement.  The $210,000 was also deposited, with Coal Logistics contributing $70,000.

    The same day, the parties began to disagree about the terms of their agreement.  BBT’s attorney, Craig Cavalier, drafted an agreement modifying the terms in Dowd=s proposed draft.  Cavalier’s draft provided the following in part:

    1.         [Coal Logistics] has assigned all it’s [sic] rights and obligations under The Vessel Purchase Contract to The BBT Group.  The BBT Group through a wholly owned subsidiary (hereafter “Newco”) . . . will acquire title to the vessel free and clear of all liens, claims and encumbrances.

    2.         In consideration of the foregoing, [Coal Logistics] will acquire a 33 percent interest in Newco subject to the terms and conditions set forth herein.  Said minority interest shall be earned upon [Coal Logistics]’s payment of one third (a) of the $210,000 (US) cash payment due on October 24 as the initial ten percent down payment under the Vessel Purchase Contract and [Coal Logistics]’s execution of those documents necessary to evidence its proportionate responsibility for the financed portion of the purchase price and other anticipated costs associated with putting the vessel back in service.  (Emphasis added.) 

     

    Cavalier’s draft also reduced the buy-out option to $200,000.

    Four days later, Dowd returned a marked-up copy of the Cavalier draft.  Dowd marked out the language requiring Coal Logistics to pay for its proportionate share of the purchase price and the refitting costs. The revamped draft contract looked like this:

    Said minority interest shall be earned upon [Coal Logistics]’s payment of one third (a) of the $210,000 (US) cash payment due on October 24 as the initial ten percent down payment under the Vessel Purchase Contract and [Coal Logistic]’s execution of those documents necessary to effect purchase of the vessel.

     

    Dowd also deleted a portion requiring joint responsibility for insurance and added a provision requiring BBT to provide insurance.  The buy-out amount was changed from $200,000 to $300,000.

    Floating Bulk Terminal (“FBT”) was created November 1, 1997, with Econo-Rail as its sole owner.  On November 17, FBT closed on the purchase of the ship.  Econo-Rail funded the remainder of the purchase price through a previously established line of credit.

    During November and December, Econo-Rail spent over two million dollars to get the ship into operating condition.  On December 31, Econo-Rail=s chief financial officer, Dan Orsini, wrote Dowd complaining, “All amounts other than the $70,000 of the original down payment have been made or advanced by or on behalf of Econo-Rail Corporation. . . .  Based upon our calculations, Econo-Rail has approximately $2.5 million dollars in the project as compared to the $70,000 that was originally advanced by Coal Logistics Corporation.”  Orsini let Dowd know what Econo-Rail expected Coal Logistics to do at that point:

    Any flexibility regarding operation of the vessel on a going forward basis . . . is somewhat dependent upon the willingness of Coal Logistics Corporation to advance necessary funds.  Interim financing for the vessel was obtained by utilizing Econo-Rail=s credit and the vessel is yet to be permanently financed.  You will need to make arrangements for your portion of the financing as well as for repayment of your proportionate share of the advances made to date and for your share of the necessary reserve of operating funds once the vessel has been placed in service.

     

    On January 1, 1998, Dowd responded to Scott, “Coal Logistics Corporation lodged its one third of the deposit and assigned the vessel purchase contract to you, and your assigns, with the understanding that you would finance the vessel purchase with the unabridged rights to pledge the vessel as security.  Through that agreement, we became a one-third owner of the vessel, and your group a two-thirds owner.”  Dowd continued, “Our group has put up $70,000, our one third portion of the vessel purchase deposit, and I have told both of you on more than one occasion that we are prepared to put up additional $100,000, bringing our cash investment to $170,000, which approximates our share of the start-up costs.” Dowd complained about having Ano documentation from you, no stock issued in our designee=s name, and a fair amount of ‘reservations,’ ‘concerns,’ ‘worries,’ and allegations expressed by you.”

    On January 8, Scott responded to Dowd, stating, “There is no agreement between the parties today and we have put up all the necessary funds to date, with the exception of the $70,000 you put up as earnest money, on the vessel.  Everything else has been conversation.  Our position is simply that if you want 33 percent of the vessel, then put up 33 percent of the vessel cost.”  Scott set forth specific details:

    We are prepared to follow through with the original b;a ownership arrangement, assuming you agree for BBT to have a $200,000 buy-out option on the vessel. What you and your partners need to do is to finance your share of the vessel purchase and refitting cost and come to the table with the ability to contribute the necessary funds to complete the refit and capital improvements necessary to trade the vessel successfully.

    Pat, at no time in our discussions did you say to BBT that you wanted 33 percent of the vessel but you are unwilling to fund your 33 percent of the purchase price and refitting cost.  The opposite is actually true.  The temporary financing which BBT has arranged will terminate in early February, 1998.  You have 30-days to fund a 33 percent portion of the purchase price for the vessel.  As a minority share holder you must recognize your position in such a venture and know that BBT or its assigns shall operate the vessel based solely on our judgement of what is the best employment for the vessel.  We suggest you seek legal council [sic] to clarify your rights.  Further, if you wish we will refund . . . the $70,000 you contributed and pay you $100,000 to walk away.  This offer is good until 15 January 1998[;] it will not be repeated.

     

    Dowd answered on February 4. He offered a proposal for future employment of the ship, but did not discuss whether Coal Logistics would pay its share of the costs.  Dowd also referred to the joint ownership:  “This old lady isn’t going to sail forever, so if we both choose to go down this road, we do it together (with b and a ownership as previously agreed) for the remaining life of the ship.  The full capitalized cost of the vessel will be recognized by the partnership B no writedown.”

    On February 19, Scott wrote Dowd:

    Coal Logistics has not funded any portion of the operating or refit costs and has not provided it=s [sic] share of the financing for the vessel purchase. You were given notice that BBT was calling for your participation in the financing and funding of the refit.  You still have not seen fit to participate in the funding.

     

    Scott explained BBT was considering scrapping the ship or spending an additional $1.5 million to make the ship economically viable to trade.  Scott added, “We need to know immediately your intention regarding funding your share of the costs.”

    On February 23, Dowd replied, “Our group has and is entitled to a one-third ownership interest in the [ship] ‘NITA M.’  We are prepared to invest furthur [sic] in the vessel because we believe in its economic viability and earning potential.”  Dowd then expressed a lack of confidence in FBT’s willingness to treat his group fairly and openly.  Dowd complained of not having received stock, documentation regarding financing, or invoices for repairs.  He also complained FBT was not employing the ship economically.  Finally, he requested “an accounting of the venture to date, any revised capital structure you wish us to consider, the debt financing you think most prudent for the venture, vessel management plans and the employment you think would be most suited for the vessel.”  The correspondence contained no promise of any money.

    On February 26, Econo-Rail filed a declaratory judgment action asking for dissolution of FBT or, alternatively, requesting a judicial dissolution.  Coal Logistics, Patrick Dowd, Lillian Dowd, and one other individual were named defendants.

    In a March 17 letter, FBT’s counsel, Craig Cavalier, advised Dowd of the lawsuit.  Cavalier also wrote, “With respect to your February 23rd correspondence, you once again have failed to directly respond to our request for funding of your shares of costs and expenses of the vessel.  The entire purchase price was paid by Econo-Rail Corp. Notwithstanding any other funds that may have been expended you have failed and refused to advance the balance of one-third (a) of the purchase price.”  Cavalier emphasized, “I have indicated since the beginning of this dispute that Econo-Rail did not finance the vessel but elected to pay cash for the vessel and that your one-third (a) share was due.”

    In response, the Coal Logistics Group sued FBT, Econo-Rail, Bill Scott, Richard Scott, and Orsini alleging breach of duty of good faith and fair dealing, fraud, breach of contract, and numerous other claims.  The case went to trial with the Coal Logistics Group as plaintiffs and FBT and Econo-Rail as defendants.  The court charged the jury on breach of contract and breach of fiduciary duty.

    The court submitted the following liability questions on breach of contract:  (1) did Econo-Rail and Coal Logistics agree that the Coal Logistics Group and the Econo-Rail Group would own the vessel together; (2) what percentage did Econo-Rail and the Coal Logistics Group agree they would each own in the vessel; and (3) did Econo-Rail Corporation fail to comply with the agreement? The jury answered “yes,” to question 1; allotted 33 percent ownership to Coal Logistics and 67 percent ownership to Econo-Rail in question 2; and answered “yes,” to question 3.  The jury then found $70,000 past damages and $2,000,000 future damages for the breach of contract.  Finally, the jury found that Coal Logistics had breached a fiduciary duty to Econo-Rail but did not award damages on this claim.

    The trial court rendered judgment on the verdict and initially awarded the Coal Logistics Group prejudgment interest on total damages of $2,070,000.  By an amended judgment, the court awarded prejudgment interest on only the $70,000 past damages.  The judgment recites, “[T]he Coal Logistics group elected to recover under its contract claim along with interest and attorneys’ fees related thereto[.]  This election was made without waiving Plaintiffs’ right to seek recovery on the alternative finding on breach of fiduciary duty and the equitable relief granted by the Court if the contract award is reversed on appeal[.]”[3]  Both sides perfected an appeal.

    DISCUSSION

    Introduction

    Econo-Rail presents the following four issues: (1) whether the finding of an oral agreement to “own the vessel together” is sufficient to support a judgment for breach of contract when the parties were unable to agree on the essential terms; (2) whether the trial court erred in refusing to apply, or to submit a jury question on, the statute of frauds; (3) whether the evidence was sufficient to support the award of damages when the plaintiff=s only expert was not qualified and did not supply an expert report on damages until the day he testified; and (4) whether Coal Logistics proved there was a confidential relationship with Econo-Rail.  The Coal Logistics Group presents the following issue:  whether the trial court should have awarded prejudgment interest on the future damages.  As we explain below, we agree with Econo-Rail that the jury’s answer to question one does not support a breach of contract claim.  Given our resolution of issue one, we need not decide Econo-Rail=s remaining issues or the Coal Logistic Group’s sole issue.[4]

    Does the Parties’ General Agreement to Own the Vessel Together

    Fail for Lack of Agreement on Essential Terms?

     

    In issue one, Econo-Rail argues there was no binding contract as a matter of law because the parties had not resolved the essential terms of the contract.  However, before we reach that issue, we must address Coal Logistics’s initial argument that Econo-Rail did not preserve the issue for appellate review.[5]

    Preservation of Error

    To raise a no evidence issue on appeal, the appellant must have done one of the following in the trial court:  (1) filed a motion for directed verdict; (2) filed a motion for judgment notwithstanding the verdict; (3) lodged an objection to the submission of the question to the jury; (4) filed a motion to disregard the jury’s answer to a vital fact question;  or (5) filed a motion for new trial.  United Parcel Serv., Inc. v. Tasdemiroglu, 25 S.W.3d 914, 916 (Tex. App.CHouston [14th Dist.] 2000, pet. denied) (citing Cecil v. Smith, 804 S.W.2d 509, 510B11 (Tex. 1991)).  Econo-Rail moved for a directed verdict at the close of the plaintiffs’ case.  It argued the following:

    [T]here has . . . been no legally sufficient evidence to prove that the parties reached an agreement to all the essential terms of the contract.  The only evidence they presented that has been B the parties agreed to was a one-third/two thirds split.  Outside of that, there=s no evidence that they agreed to the rest of the terms we=ve been hearing evidence about.

     

    The court denied the motion. Econo-Rail renewed the motion at the close of evidence. The trial court again denied the motion.

    Econo-Rail also objected to jury question one, arguing that the question asked only about ownership and did not establish the rights of the parties.  Additionally, Econo-Rail requested the following question: “Did Econo-Rail and Coal Logistics agree that Coal Logistics Group and Econo-Rail would purchase, own, and operate the vessel one-third and two-thirds together as partners.@ The court overruled the objection and denied Econo-Rail’s request.

    Econo-Rail again raised its no evidence issue after the verdict.  It requested a new trial, alleging that the evidence was legally insufficient to support the breach of contract claim, and in a later motion argued in the alternative for a JNOV or new trial.  Finally, in a post-judgment motion filed May 9, 2001, Econo-Rail argued that the jury=s responses to the breach-of-contract questions were supported by legally and factually insufficient evidence and were immaterial.  Each of these motions preserved the issue for review.

    The Merits of Econo-Rail=s Issue One

    Standard of review.  In conducting a “no evidence” or legal insufficiency review, we must consider all the evidence in the light most favorable to Coal Logistics, indulging every reasonable inference in favor of the court’s determination that there is some evidence to support its claim.  See Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285‑86 (Tex. 1998).  We will sustain a legal insufficiency point when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of a vital fact.  Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).  As discussed below, the issue here is whether there is a complete absence of evidence of a vital fact, specifically, whether there is any evidence showing that the parties’ agreement contained the essential terms to make the agreement enforceable.


    No evidence of essential terms and therefore no enforceable contract.  To be enforceable, a contract must sufficiently define all its essential terms to allow the court to determine the obligations of the parties.  Mabon Ltd. v. Afri‑Carib Enters., Inc., 29 S.W.3d 291, 300 (Tex. App.CHouston [14th Dist.] 2000, no pet.).  If an alleged agreement is so indefinite as to make it impossible for a court to fix the legal rights and obligations of the parties, it is not an enforceable contract.  This means that the essential terms of the contract must be agreed upon.  When an essential term is open for future negotiation, there is no binding contract.  T. O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992).  Finally, each contract should be considered separately to determine its material terms. Id.

    Here, the parties were purchasing a ship for $2.1 million, with much additional work needed to make it seaworthy.  The parties left out several essential terms from their agreement.  We do not know (1) the division for the remainder of the purchase price, (2) the division of profits, (3) the division of operating costs, or (4) the division of refitting costs (which exceeded $2 million).  The only things we know are how much each party was to contribute for the down payment (which was only 10% of the cost of the ship) and the division of ownership, b B a. Were we to conclude that the parties wanted to split these other costs and obligations b B a, that would be only an assumption on our part.  Moreover, the parties’ correspondence makes it clear that this assumption would be wrong. In that correspondence, Coal Logistics declined to discuss taking any additional responsibility for financing or costs.  Simply put, we have no essential terms to spell out how we would enforce each of the parties’ rights; their rights and liabilities are not contained in the agreement. Thus, the agreement fails for indefiniteness.  See T. O. Stanley Boot Co., Inc., 847 S.W.2d at 222.[6]

    Matter of Law or Question of Fact. Anticipating this holding and citing to Scott v. Ingle Brothers Pacific, Inc., Coal Logistics argues that the question of whether the parties reached an agreement is an issue of fact.  489 S.W.2d 554 (Tex. 1972).  Here, no one disputes that the parties agreed to a b B a joint ownership (the only contract questions submitted to the jury) and agreed to divide the down payment b B a. The problem is, those are virtually the only terms they agreed to.  Consequently, the question here is whether those terms comprise all the essential terms for a binding contract.  That questionCwhether an agreement has all the essential terms to be an enforceable contractCis a question of law.  See America’s Favorite Chicken Co. v. Samaras, 929 S.W.2d 617, 622 (Tex. App.CSan Antonio 1996, writ denied); see also McCreary v. Bay Area Bank & Trust, 68 S.W.3d 727, 733 (Tex. App.CHouston [14th Dist.]  2001, pet. dism’d) (stating question whether deposit contract is legally enforceable or binding is question of law); Gaede v. SK Invs., Inc., 38 S.W.3d 753, 757 (Tex. App.CHouston [14th Dist.]  2001, pet. denied) (stating whether agreement constitutes valid contract generally is legal determination for court); Ronin v. Lerner, 7 S.W.3d 883, 886 (Tex. App.CHouston [1st Dist.] 1999, no pet.) (stating whether agreement is legally enforceable is question of law).  That question was not before the Scott court.

    On the other hand, deciding what additional, non-essential terms an already enforceable contract has or deciding whether mutual assent to an implied contract exists are fact issues. See America=s Favorite Chicken Co., 929 S.W.2d at 625 (contrasting factual question of whether agreement existed with legal question of whether existing agreement comprised all essential terms).  The cases cited to us by Coal Logistics all involve this second scenario.  See, e.g., Scott, 489 S.W.2d at 555; City of Houston v. First City, 827 S.W.2d 462, 473 (Tex. App.CHouston [1st Dist.] 1992, writ denied); Emmer v. Philips Petroleum Co., 668 S.W.2d 487, 490B91 (Tex. App.CAmarillo 1984, no writ); Indust. Disposal Supply Co. v. Perryman Bros. Trash Serv., Inc., 664 S.W.2d 756, 765 (Tex. App.CSan Antonio 1983, writ ref’d. n.r.e.).  The issue in Scott and the other cases was whether the parties reached an agreement.  We do not dispute the holdings in these cases; they are simply irrelevant here.

     “Performance.” As a final attempt to argue that the issues in this case are fact issues, Coal Logistics contends courts of appeals have “consistently followed [the] directive to more readily find intent to be bound by a preliminary agreement when . . . substantial performance has been rendered or material action has been taken in reliance upon existing expressions of agreement.”  Coal Logistics cites two cases in support of its substantial performance argument.  Of these, only Hardin Construction Group, Inc. v. Strictly Painting, Inc., arguably links performance to the question of whether the agreement encompassed all essential terms. 945 S.W.2d 308, 313 (Tex. App.CSan Antonio 1997, orig. proceeding [leave denied]). 

    But, as with the other cases Coal Logistics cites, this case also is irrelevant because, as analyzed by the court, it involved an implied contract.  See id. at 310 (referring to letter in which Strictly Painting implicitly agreed to all but one term).  The implied contract already had all the essential terms; the substantial performance merely confirmed that the performing party intended to be bound by the contract it failed to sign.

    Moreover, there are several noteworthy facts in Hardin that we do not have here.  The parties had previously entered into several signed contracts exactly like the one in Hardin, except for one disputed term that was added to the unsigned contract underlying the litigation.  The prior relationship and the unsigned, but similar, contract exchanged between the parties gave specific meaning to the one party’s performance.  As a consequence, the court=s language that one party’s performance helped determine whether a term was essential or not, must be viewed in light of these facts; they narrow the application of this language.       Here, there was no implied contract; there was no contract at all.  We have only two essential terms, and they relate only to the proportional ownership and division of the down payment.

    In summary, we conclude that the “agreement” here was unenforceable  because the parties did not agree on the essential terms.

    We sustain Econo-Rail=s issue one.

    Is Rendition on the Alternative Theory of Recovery Appropriate?

    The trial court’s judgment incorporated the jury’s verdict for all purposes.  Answering question four, the jury found a relationship of trust and confidence existed between Coal Logistics and Econo-Rail.  The jury answered, “no” to question five, which asked “Did Econo-Rail comply with its fiduciary duty to the Coal Logistics Group?” Question six was erroneously predicated on an affirmative answer to question five, and the jury therefore left question six blank.

    After the jury returned its verdict, Coal Logistics moved for a mistrial, but did not object to the incomplete verdict before the jury was discharged.  When the court stated it was not going to grant a mistrial at that time, Coal Logistics accepted the jury=s verdict.  Coal Logistics therefore waived any benefit from the jury question.  See Osterberg v. Peca, 12 S.W.3d 31, 56 (Tex. 2000) (holding party, by failing to object when jury did not return answer on attorney’s fees, waived any benefit from jury question, waived any right to have trial judge supply his own fact finding or grant new trial on the issue, and waived right to appeal judgment on issue of attorney’s fees).  Thus, although Coal Logistics tried its case on alternative theories of recovery and received favorable liability findings on two of those, because the jury did not find damages on the alternative theory, we are not required to examine the sufficiency of the evidence on the second theory before reversing and rendering a take-nothing judgment.  Cf. Boyce Iron Works v. Southwestern Bell Tel. Co., 747 S.W.2d 785, 787 (Tex. 1988) (holding court of appeals erred when it failed to consider party=s negligence claim after reversing judgment on DTPA claim); Metro. Life Ins. Co. v. Haney, 987 S.W.2d 236, 244 (Tex. App.CHouston [14th Dist.] 1999, pet. denied) (considering negligence claim after reversing judgment on DTPA claim).

    CONCLUSION

    Because we sustain Econo-Rail=s issue one and because there are no damages findings on Coal Logistics’s breach-of-fiduciary-duty claim, we reverse and render judgment that Coal Logistics take nothing.  Given our resolution of Econo-Rail’s issue one, we need not decide Econo-Rail=s remaining issues or the Coal Logistic Group=s sole issue.

     

     

     

    /s/        Wanda McKee Fowler

    Justice

     

     

     

    Judgment rendered and Opinion filed July 25, 2002.

    Panel consists of Chief Justice Brister and Justices Fowler and Frost.

    Do Not Publish C Tex. R. App. P. 47.3(b).


    [1]  The final judgment is not against Floating Bulk Terminal, L.L.C.  Nevertheless, it joined with Econo-Rail on the notice of appeal.  Appellee J. Patrick Dowd worked for Coal Logistics, a family-owned shipping business.  Appellee Lillian Moore Dowd contributed a share to the down payment on the ship.

    [2]  BBT subsequently merged with Econo-Rail.

    [3]  The judgment also recites, A[T]he October 7, 2000 Order Granting Equitable Relief is hereby vacated based on Plaintiffs= election.@

    [4]  In issue four, Econo-Rail challenges the jury=s findings on breach of fiduciary duty. Econo-Rail apparently raises the issue because, in its election of the breach-of-contract damages, Coal Logistics stated it was not Awaiving Plaintiffs= right to seek recovery on the alternative jury finding on breach of fiduciary duty.@  We address breach of fiduciary duty only briefly to explain why that cause of action does not support  recovery.

    [5]  Coal Logistics argues Econo-Rail’s “true complaint is that the charge contained an improper question or questions regarding whether the parties created a legally enforceable agreement.”  Based on our reading of Econo-Rail=s brief and its argument in the trial court, we disagree.  Econo-Rail is raising a no evidence issue.

    [6]  For cases in which courts have held a contract unenforceable for failure of an essential term see the following:  T.O. Stanley Boot Co., 847 S.W.2d at 221B22 (holding alleged contract to make $500,000 line of credit available failed for indefiniteness when no evidence was introduced regarding interest rate of alleged loan or repayment terms); Gerdes v. Mustang Exploration, 666 S.W.2d 640, 644 (Tex. App.CCorpus Christi 1984, no writ) (holding contract for sale of water, which did not specify price, was unenforceable because price of water was essence of contract); Bridewell v. Pritchett, 562 S.W.2d 956, 958 (Tex. Civ. App.CFort Worth 1978, writ ref=d n.r.e.) (holding contract unenforceable because rate of interest to be paid by subpurchaser to vendors on oral contract to effect cancellation of attempt to foreclose on deed of trust and purchase‑money note was of the essence and was not Adetail@ to be supplied by court); Terrell v. Nelson Puett Mortgage Co., 511 S.W.2d 366, 369 (Tex. Civ. App.CAustin 1974, writ ref=d n.r.e.) (holding promise lacked definiteness of essential element, i.e., the total sum to be underwritten during a period of six years).