Musa ("Moses") N. Musallam v. Amar B. Ali

IN THE SUPREME COURT OF TEXAS
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NO. 17-0762
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MUSA (“MOSES”) N. MUSALLAM, PETITIONER,
v.
AMAR B. ALI, RESPONDENT
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS
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Argued September 13, 2018
JUSTICE JOHNSON delivered the opinion of the Court.
Musa “Moses” Musallam and Amar Ali entered into a written agreement relating to the sale
of Musallam’s business to Ali. Musallam refused to close, maintaining that the agreement lacked
essential elements of a binding contract and was thus only an agreement to agree. The case was tried
to a jury. Musallam requested a jury question asking whether he and Ali had agreed to the sale of
the business, and, naturally, did not object to the trial court’s including the question in the jury
charge. The jury found that they had agreed. By motion for judgment notwithstanding the verdict,
Musallam challenged that answer.
The trial court denied Musallam’s motion and rendered judgment for Ali. Musallam
appealed, in part, challenging the jury’s finding that he agreed to sell the business to Ali. The court
of appeals determined that because Musallam did not object to the question, he failed to preserve
error to challenge either its inclusion in the charge or the jury’s answer to it. We disagree with the
court of appeals. Accordingly, we reverse and remand to that court.
I. Background
Musallam owns Fanci Candy, Inc., a wholesale distributer of candy and tobacco products.
At times relevant to this matter, Fanci Candy had contracts to buy tobacco products directly from
Altria Group Distribution Company (the owner of Philip Morris and U.S. Tobacco) and Lorillard
Tobacco Company. In April 2012, Musallam approached Ali, the vice president of convenience
store distribution business A to Z Wholesalers, Inc., about purchasing Fanci Candy. A to Z
Wholesalers did not have a direct contract with either Altria or Lorillard, thus it bought those
companies’ tobacco products through middlemen and paid higher prices for them than did Fanci
Candy. Because Altria and Lorillard ordinarily would not enter into new contracts to sell directly
to wholesalers, businesses that wanted to buy directly from them usually sought to do so by buying
companies that had direct contracts. But the Altria and Lorillard direct-purchase contracts would
not necessarily transfer if Fanci Candy was sold: both Altria and Lorillard reserved the right to
discontinue direct sales to Fanci Candy absent their approval of its purchaser.
Ali and Musallam reached an agreement regarding the sale of Fanci Candy and signed a
letter of intent.1 The closing date was listed as “[i]mmediate, subject to preapproval” from Altria
and Lorillard. Altria initially refused to approve the application to transfer Fanci Candy’s
ownership, but did so after Ali and Musallam resubmitted the application.
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The letter of intent listed A to Z as the buyer, but also provided that A to Z could assign its rights. Ali testified
that he and Musallam chose to state that A to Z was the buyer because it was a stronger candidate as a purchaser that
they believed the tobacco companies would be more inclined to approve.
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While waiting on approval from Lorillard, Ali and Musallam executed a Stock Transfer and
Asset Purchase and Sale Agreement (Stock Transfer Agreement, or Agreement) by which Musallam
agreed to sell to Ali all Fanci Candy stock shares along with other assets used in the business such
as land, buildings, inventory, vehicles, fixtures, and equipment. The purchase price for the stock
was $500,000, subject to the contingency that if Musallam was unable to obtain written approval
from both Altria and Lorillard for the direct contracts to remain in force, the price would be reduced
to $250,000. Because Altria had approved the change of ownership, the sales price hinged on
Lorillard’s approval. The Stock Transfer Agreement provided that the sales price for the furniture,
fixtures, and equipment such as stamping and packing machines would be their value “as mutually
agreed upon by the parties prior to the Closing Date,” and the price of the land and building would
be the value set by an appraisal to be accomplished before the closing date. Closing was to take
place on or before July 1, 2013.
On June 28, 2013, Lorillard notified Ali that it would not approve the change in ownership.
Musallam and Ali discussed resubmitting the application to Lorillard as they had done with Altria.
Musallam also proposed postponing the July 1 closing date, but Ali would not agree to the change.
At that point, Musallam and Ali had not come to an agreement as to the value of the furniture,
fixtures, and equipment, and Musallam disputed the value of the land and building as determined
by the appraisal.
Ali appeared for the closing on July 1, but Musallam did not. Instead, on July 2, Musallam
sued Ali seeking a declaratory judgment that (1) the Stock Transfer Agreement was unenforceable
and void because the parties did not agree on all its essential terms, and (2) Musallam had not
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breached the Agreement. Ali counterclaimed, asserting various claims including a claim for
damages because Musallam had indeed breached the Agreement.
The case was tried to a jury. The trial court submitted the following question and
instructions as part of the jury charge:
Question No. 1
Did Moses Musallam and Amar Ali agree to the sale and transfer of Fanci
Candy Company in the Stock Transfer and Asset Purchase and Sale Agreement?
In deciding whether the parties reached an agreement, you may consider what
they said and did in light of the surrounding circumstances, including any earlier
course of dealing. You may not consider the parties’ unexpressed thoughts or
intentions.
If Moses Musallam and Amar Ali agreed to other essential terms but failed
to specify price, it is presumed a reasonable price was intended.
Answer “Yes” or “No.”
Musallam requested the submission, while Ali objected to it. Ali argued that “the evidence is clear
and unequivocal that both parties signed the stock transfer and asset purchase agreement” and there
was no question that Ali and Musallam reached an agreement. In response to Ali’s objection,
Musallam asserted that when an agreement leaves material terms open for future adjustment it is not
binding but constitutes merely an agreement to agree. He argued that whether the price for furniture,
fixtures, equipment, and other open issues were material terms was a fact question for the jury that
must be determined before the court could decide the legal question of whether the Stock Transfer
Agreement was a binding contract or merely an agreement to agree.
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The jury answered Question 1 “Yes,” and found in response to Question 2 that Musallam
failed to comply with the Stock Transfer Agreement. The jury also found that Ali suffered $904,924
in lost profit damages. The trial court rendered judgment for Ali based on the jury’s findings and
also awarded attorney’s fees to Ali.
Musallam filed a Motion for New Trial and a Motion for Judgment Notwithstanding the
Verdict or, in the Alternative, Motion to Disregard. In his motion for judgment notwithstanding the
verdict, Musallam asked the court to disregard all the jury findings and render judgment that no
contract existed between the parties. He asserted that Question 1 and the jury’s answer to it should
be disregarded because (1) whether the Stock Transfer Agreement was an enforceable contract was
a question of law, and (2) the evidence conclusively proved that the Stock Transfer Agreement was
merely an unenforceable agreement to agree because it left key elements of the total purchase price
open for further negotiation. The trial court denied Musallam’s motions.
In the court of appeals Musallam asserted that (1) the Stock Transfer Agreement was an
“agreement to agree” and not a binding enforceable agreement, (2) insufficient evidence supported
the jury’s finding for lost profits on Ali’s breach of contract claim, and (3) the trial court erred by
failing to submit a question in the jury charge. The court of appeals affirmed. ___ S.W.3d ___ (Tex.
App.—Fort Worth 2017). Regarding enforceability of the Stock Transfer Agreement, the court of
appeals stated that it understood Musallam’s argument to be that “[The jury’s] finding [on Question
No. 1] should be disregarded as immaterial because whether a particular agreement is an enforceable
contract is a question of law.” Id. at ___. The court noted that a jury question may be deemed
immaterial and disregarded if it calls for a finding beyond the province of the jury, such as on a
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question of law. Id. (citing Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex.
1994)). However, the appeals court did not address Musallam’s argument. It agreed with Ali that
Musallam failed to preserve error as to Question 1 because he did not object to its submission. Id.
at ___. The court also determined that the evidence of lost profits was sufficient to support the
jury’s award, and that Musallam’s issue regarding the trial court’s failure to include a question in
the jury charge was inadequately briefed and thus waived. Id. at ___ n.3, ___.
In this Court, Musallam’s prime argument is that the court of appeals erred by failing to
address the merits of his assertion that the Agreement was an unenforceable agreement to agree. He
claims that his failure to object to Question 1 did not preclude him from later arguing either that the
jury’s finding was not supported by the evidence, or that as a matter of law the Stock Transfer
Agreement was an unenforceable agreement to agree. We agree with Musallam.
II. Discussion
We first address Musallam’s assertion that his failure to object to Question 1 did not preclude
him from later challenging the sufficiency of the evidence to support the jury’s answer to it.
Texas Rule of Civil Procedure 279 provides that “[a] claim that the evidence was legally or
factually insufficient to warrant the submission of any question may be made for the first time after
verdict, regardless of whether the submission of such question was made by the complainant.”
While a party may preserve a no evidence issue by objecting to submission of the issue to the jury,
a motion for judgment notwithstanding the verdict or motion to disregard the jury’s answer will also
preserve error. Steves Sash & Door Co., Inc. v. Ceco Corp., 751 S.W.2d 473, 477 (Tex. 1988).
Accordingly, by requesting Question 1 Musallam did not forfeit the right to later challenge the legal
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sufficiency of the evidence to support it. See Simon v. Henrichson, 394 S.W.2d 249, 257 (Tex. Civ.
App.—Corpus Christi 1965, writ ref’d n.r.e.) (“Objection of no evidence can be made for the first
time after verdict, regardless of whether the submission of such issue was requested by the
complaining party or not.” (citing TEX. R. CIV. P. 279)).
Next we consider whether Musallam’s failure to object to Question 1 precluded him from
later challenging the jury’s answer to it as being immaterial.
Trial courts may disregard a jury finding if the finding is immaterial. See USAA Tex. Lloyds
Co. v. Menchaca, 545 S.W.3d 479, 505 (Tex. 2018) (citing Spencer, 876 S.W.2d at 157). Ali
contends that, as the court of appeals determined, Musallam’s complaint is about jury charge error
and he was required to raise it by objecting to the charge. ___ S.W.3d at ___ (citing TEX. R. CIV.
P. 272–74). However, a complaint that a jury’s answer is immaterial is not a jury charge complaint.
See BP Am. Prod. Co. v. Red Deer Res., LLC, 526 S.W.3d 389, 402 (Tex. 2017). Accordingly, a
party need not object to a jury question to later argue that it is immaterial. Id. (“BP preserved error
on the immateriality issue by raising these concerns post-verdict in a motion for judgment in
disregard, in a motion for judgment notwithstanding the verdict, and in a motion for new trial.”); see
Nat’l Plan Adm’rs, Inc. v. Nat’l Health Ins. Co., 235 S.W.3d 695, 703–04 (Tex. 2007). The court
of appeals erred by holding otherwise.
Having concluded that Musallam’s failure to object to Question 1 did not forfeit his right to
later challenge submission of the question and the jury’s answer to it, we turn to Musallam’s
assertion that he never had a binding and enforceable agreement with Ali. As already noted, the
court of appeals did not address the issue, concluding that Musallam waived it.
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If a party raises an issue in this court that was briefed but not decided in the court of appeals,
we may either remand the case to the court of appeals to consider the issue or consider it ourselves.
TEX. R. APP. P. 53.4. Musallam urges us to consider the issue and render judgment in his favor,
asserting that the evidence clearly establishes there was no agreement between the parties.
However, he simply references pages of his brief in the court of appeals in support of his position.
Given the posture of the case and the arguments, we conclude that the appropriate disposition is to
remand to the court of appeals for it to first address issues properly preserved but which we have not
addressed. See First Bank v. Brumitt, 519 S.W.3d 95, 112 (Tex. 2017) (“Because First Bank has not
addressed the sufficiency-of-the-evidence issue in its briefing to this Court, we believe it is better
to remand for the court of appeals to consider and address the issue in the first instance.”).
III. Conclusion
Musallam’s requesting jury Question 1 did not preclude him from later challenging the jury’s
answer to that question. Because the court of appeals held otherwise, we reverse its judgment and
remand to that court for further proceedings.
________________________________________
Phil Johnson
Justice
OPINION DELIVERED: October 26, 2018
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