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

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-16-00282-CV
___________________________
MUSA (‘MOSES’) N. MUSALLAM, Appellant
V.
AMAR B. ALI, Appellee
On Appeal from the 67th District Court
Tarrant County, Texas
Trial Court No. 067-266677-13
Before Gabriel, Pittman, and Bassel, JJ.
Memorandum Opinion on Remand by Justice Gabriel
MEMORANDUM OPINION ON REMAND
This case is before us on remand from the supreme court. In June 2013,
appellant Musa (‘Moses’) N. Musallam and appellee Amar B. Ali signed a document
entitled “Stock Transfer and Asset Purchase and Sale Agreement” (the Purchase
Agreement). A jury found that Musallam breached that agreement and awarded Ali
damages in excess of $900,000 for past and future lost profits. The trial court
rendered judgment on the jury’s verdict. Musallam appealed to this court, raising
three issues. In the first, he argued the trial court erred by rendering judgment on the
jury’s verdict because the Purchase Agreement was not a binding, enforceable
contract. In the second, Musallam argued the jury’s award of past and future lost
profits damages was not supported by legally sufficient evidence. And in the third,
Musallam argued the trial court erred by refusing to include a question in the jury
charge.
On original submission, we did not address Musallam’s first issue because we
concluded he had waived it. We also held that the jury’s damages award was
supported by legally sufficient evidence. And we concluded Musallam had
inadequately briefed his third issue. We therefore overruled all of Musallam’s issues
and affirmed the trial court’s judgment.
Musallam appealed to the supreme court, arguing that he did not waive his first
issue and that we should have therefore considered its merits. See Musallam v. Ali,
560 S.W.3d 636, 639 (Tex. 2018). Musallam also asked the supreme court to address
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the merits of his first issue in the first instance. Id. at 640. The supreme court agreed
with Musallam that he did not waive his first issue. Id. at 639. But after turning to the
merits of Musallam’s assertion that the Purchase Agreement was not a binding,
enforceable contract, the supreme court declined to address that argument in the first
instance and instead remanded the case to this court for us to “first address issues
properly preserved but which [it had] not addressed.” See id. at 640. As noted, we
addressed Musallam’s second and third issues in our prior opinion, and those issues
were not the subject of the supreme court’s opinion. Thus, we do not address those
issues in this opinion on remand.
In his first issue, Musallam argues that the Purchase Agreement is not an
enforceable contract and, thus, the trial court erred by denying his motion for
judgment notwithstanding the verdict and by entering judgment in accordance with
the jury’s verdict. We affirm.
I. PROCEDURAL AND BACKGROUND FACTS
In 2007, Musallam acquired Fanci Candy Company, a business that distributes
tobacco products (among other things) to convenience stores in north Texas. Fanci
Candy held direct distribution agreements with two of the three major tobacco
companies in the United States. One of those agreements was with Altria Group
Distribution Company, the parent company of several tobacco manufacturers,
including Philip Morris USA, U.S. Smokeless Tobacco Company, and John Middleton
Company. Fanci Candy’s direct distribution agreement with Altria allowed it to
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purchase tobacco products directly from Philip Morris and U.S. Smokeless Tobacco.
Fanci Candy’s second direct distribution agreement allowed it to directly purchase
tobacco products manufactured by Lorillard Tobacco Company, Inc.1
Because of the way the tobacco industry works, it is difficult to obtain direct
distribution agreements like the ones Fanci Candy had with Altria and Lorillard
because those companies rarely, if ever, enter into such agreements with new
distributors. Thus, if a distributor wants to purchase tobacco products directly from
Altria or Lorillard but does not already have direct distribution agreements with one
of them, the main way for it to get those agreements is to purchase a company that
has an existing agreement with Altria or Lorillard and then be grandfathered into the
acquired company’s agreements.
Ali’s father owned A to Z Wholesalers, Inc. Like Fanci Candy, A to Z
Wholesalers distributed tobacco products to convenience stores. But unlike Fanci
Candy, A to Z Wholesalers did not have a direct distribution agreement with Altria
allowing it to directly purchase tobacco products from Philip Morris or U.S.
Smokeless Tobacco, nor did it have a direct distribution agreement with Lorillard
allowing it to directly purchase its tobacco products. So in order for A to Z
Wholesalers to distribute those tobacco products to convenience stores, it first had to
purchase them from a middleman.
At trial, the evidence showed that Lorillard had since been acquired by R.J.
1
Reynolds Tobacco Company.
4
Ali was A to Z Wholesalers’ vice president and general counsel and was
essentially responsible for running it. Toward the end of 2012, Musallam decided to
sell Fanci Candy. Ali became interested in personally purchasing Fanci Candy because
it would provide a means by which he could be grandfathered into Fanci Candi’s
direct distribution agreements with Altria and Lorillard. With those agreements in
hand, Ali could then acquire Philip Morris’s, U.S. Smokeless Tobacco’s, and
Lorillard’s tobacco products at the lower cost Fanci Candy was able to. He could
then replace A to Z Wholesalers’ middleman and sell those tobacco products to A to
Z Wholesalers (and other distributors) himself at the same marked-up price the
middleman had been charging. Because Ali could sell the tobacco products at a
higher price than it cost him to acquire them, he would earn a profit.
Musallam and Ali reached a tentative agreement for the sale of Fanci Candy.
On January 25, 2013, they signed a letter of intent outlining the basic terms of their
agreement. The letter, bearing A to Z Wholesalers’ letterhead, stated that Ali’s father
and/or A to Z Wholesalers would purchase Fanci Candy’s stock and assets with an
“[i]mmediate” closing date, “subject to preapproval from Philip Morris USA, U.S.
Smokeless Tobacco Brands, Inc.[,] and Lorillard Tobacco Company.”2 In addition,
2
Ali signed the letter of intent in the capacity of A to Z Wholesalers’ vice
president and general counsel. The letter provided that the buyer had the right to
assign the offer to any other individual or company. At trial, Ali testified that when
they signed the letter, he and Musallam were preparing applications to send Altria and
Lorillard to secure their approval of Fanci Candy’s sale. According to Ali, Musallam
believed Altria and Lorillard were more likely to approve the sale if A to Z
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the letter stated that it was “not intended to, and [did] not create any binding legal
obligation” on the parties and was not “intended to be construed as an agreement-in-
principal, agreement to agree, contract, or agreement.” It also stated that the terms
outlined in the letter “shall be incorporated into a formal agreement . . . , which shall
be negotiated at a later date.”
A month after signing the letter of intent, Musallam sent applications to Altria
and Lorillard requesting their approval of the sale. By letter dated April 11, 2013,
Altria responded to the application. The letter stated that Altria had “decided not to
approve [Ali’s] company for direct distributor status at this time.” Musallam believed
the reason Altria had withheld its approval was because it was under the impression
that he and Ali intended the sale of Fanci Candy to be a corporate acquisition by A to
Z Wholesalers. So Musallam and Ali decided to resubmit the approval application to
Altria, this time showing that Ali would be purchasing all of Fanci Candy’s stock.
To effectuate the plan to resubmit the approval application to Altria, Ali
executed another letter of intent, this time placing his own name on the letterhead
instead of A to Z Wholesalers’. The terms outlined in this letter of intent were
essentially the same as those in the previous one, with an important difference being
that the new letter listed Ali and/or his father, individually, as the purchasers. On
May 1, 2013, Ali resubmitted the application to Altria, clarifying that A to Z
Wholesalers was listed as the buyer, so Musallam recommended they list the buyers as
Ali’s father and A to Z Wholesalers instead of Ali.
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Wholesalers was not the intended buyer of Fanci Candy and again requesting Altria to
approve the sale. Altria responded on June 7, 2013, stating that it had approved Ali
for direct distributor status based on his plan to purchase Fanci Candy’s stock.
By contrast, as of June 7, 2013, Lorillard had not yet provided its written
approval of the contemplated sale. But it had sent Musallam an email on June 4,
2013, acknowledging its receipt of the application for approval and stating that “[f]or
future reference[,] A - Z Wholesale [would] receive a financial statement request letter
on an annual basis for Fanci Candy Company.” Based on this email, Musallam
believed Lorillard would approve Ali’s purchase of Fanci Candy. Ali, however, asked
Musallam to obtain formal written approval from Lorillard. So on June 6, 2013,
Musallam replied to the email from Lorillard, asking it to “please send [him] a formal
letter on Lorillard letterhead approving [Ali] for [the] Stock ownership change[.]”
On June 18, 2013—having secured Altria’s formal approval but still lacking
Lorillard’s—Musallam and Ali signed the Purchase Agreement. Section 1.01 of the
agreement provided that Ali agreed to purchase from Musallam, and Musallam agreed
to sell to Ali, one-hundred percent of Fanci Candy’s stock at a closing set to occur on
or before July 1, 2013. Section 1.02 provided that in addition to the purchase and sale
of Fanci Candy’s stock, and as contemplated in Article II of the Purchase Agreement,
Ali agreed to accept, and Musallam agreed to convey, what the provision referred to
as “Purchased Assets.”
7
Under Section 1.02, Purchased Assets referred to the terms “Land,”
“Building,” “Inventory,” “Vehicles,” “Furniture, Fixtures and Equipment,” (FF&E)
and “Accounts Receivable.” Each of those terms was defined in the agreement. The
Purchase Agreement also set forth the purchase price for the transaction in
Section 1.03:
1.03 Consideration. As consideration for [Musallam’s stock in Fanci
Candy], [Ali], at the Closing, will pay to [Musallam] the purchase price
(the “Purchase Price”) in an amount as follows:
Total purchase price: $500,000.00*, plus Purchased Assets.
*unless reduced as provided in Section 5.01(c).
The Purchase Agreement defined the value of each category composing the
Purchased Assets as follows:
2.03 Purchase price of “Inventory”. [Ali] and [Musallam] agree that
the value of the Inventory, as defined under the Article and Agreement,
will be appraised at [Musallam’s] cost at the Closing Date. This
Inventory appraisal shall be attached to this Agreement on the Closing
Date as Exhibit D. [Ali] will compensate [Musallam] for the Inventory
at this appraisal value.
2.04 Purchase price of “Land” and “Building”. [Ali] and
[Musallam] agree that the value of the Land and Building, as defined
under the Article and Agreement, will be appraised on or before the
Closing Date at [Ali’s] expense. The parties agree that this appraisal
must be generated by a licensed/certified appraiser as chosen by [Ali].
This appraisal shall be attached to the Agreement on the Closing Date as
Exhibit E.
2.05 Purchase price of “Vehicles”. [Ali] and [Musallam] agree that
the value of the Vehicles, as defined under the Article and Agreement,
shall be the Kell[e]y Blue Book Value of the Vehicles on the Closing
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Date. Evidence of these values shall be attached to the Agreement as
Exhibit C.
2.06 Purchase price of “FF&E”. [Ali] and [Musallam] agree that the
value of the FF&E, as defined under the Article II, Section 2.01 of this
Agreement, shall be as mutually agreed upon by the parties prior to the
Closing Date. Evidence of this mutual agreement shall be attached to
the Agreement as Exhibit B.
2.07 Purchase price of “Accounts Receivable”. [Ali] and [Musallam]
agree[] that the value of the Accounts Receivable assumed by [Ali] from
[Musallam], and as defined under Article II, Section 2.01 of this
Agreement, shall be the total amount of the account(s) on the date of
Closing. Evidence of the balance of these accounts shall be attached to
this Agreement as Exhibit J.
As noted, Section 1.03 says that the Purchase Price could be reduced “as
provided in Section 5.01(c).” In relevant part, that section states the following:
5.01 Conditions Precedent to [Musallam’s] Obligation to Sell the
Stock. The obligation of [Musallam] to sell [Fanci Candy’s stock] is
subject to the fulfillment prior to or at the Closing of the following
conditions:
....
(c) [Musallam] shall obtain formal written approval from the following
suppliers on suppliers’ official corporate letterhead confirming that any
direct contracts that exist between said suppliers and [Fanci Candy] shall
remain in full force and effect after the transfer of [Fanci Candy’s stock],
and shall remain in full force and effect for the remainder of the existing
contract: 1) Altria Group Distribution Company to include: Phillip
Morris, USA and U.S. Smokeless Tobacco Brands, Inc., and 2) Lorillard
Tobacco Company, Inc. The parties agree that written approval of both
Altria Group Distribution Company and Lorillard Tobacco Company
and the continuing existence of the direct contracts with these
companies is material in inducing [Ali] to enter into this Agreement with
[Musallam]. Accordingly, should [Ali] fail to obtain written approval
from either company (or written approval secured by [Musallam]), the
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Purchase Price shall be reduced to Two Hundred and Fifty Thousand
Dollars and 00/100 ($250,000.00).
After executing the Purchase Agreement, Musallam and Ali continued to work
toward closing the deal. Ali wrote a $10,000 earnest-money check, and Musallam
received it, though he did not cash it. Ali also hired a licensed appraiser to perform an
appraisal of Fanci Candy’s land and building. Musallam continued working with Ali,
instructing his employees to provide Ali with any financial documents Ali needed and
affording Ali access to Fanci Candy’s warehouse as needed. At some point, Musallam
provided Ali with his proposed value for Fanci Candy’s FF&E. By Musallam’s
calculation, the value of the FF&E was approximately $194,000.
As the Purchase Agreement’s July 1, 2013 closing date approached, however,
the deal went awry in the face of at least three hurdles. First, on June 26, 2013,
Musallam learned that Lorillard had decided not to approve the proposed sale of
Fanci Candy. Second, a short time before June 28, 2013, Ali sent Musallam a
proposed closing statement that reflected he did not agree with Musallam’s valuation
of Fanci Candy’s FF&E. Ali estimated the FF&E was worth approximately $53,000, a
figure that was some $140,000 less than Musallam had calculated. And third, as of
late morning on June 28, 2013, Musallam had not received a copy of the appraisal for
Fanci Candy’s building and land.
At approximately 11:30 a.m. on June 28, 2013 (a Friday), Musallam emailed Ali
the following:
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I have reviewed your proposed closing statement[,] and the numbers are
completely unacceptable.
I am willing to negotiate the FF[&]E but you are far too low. Also, we
still do not have the building appraisal. Why has it taken so long to get
this information?
Additionally[,] you know we both assumed we had the Lorillard
approval. The deal does not work for me with a 250k reduction. We are
trying to resolve the issue[,] but it will not happen by Monday [July 1,
2013].
I see no choice but to postpone the closing until we can resolve these
issues.
Please let me know if you agree or what other arrangements you
propose.
I want to make this work[,] but I cannot give the company away. Please
be reasonable as we try to get this done[.]
[Signature]
We do [s]till need a letter from you to Lorillard to solve the situation
with [a] copy of the agreement in the same way we did with Altria please.
And at approximately 1:45 p.m., Musallam sent a text message to Ali stating,
Amar, closing will not happen on Monday based on the email I sent you.
I just asked our employees not to send any more information over until
we both agree on an action plan, hope you respect this request and not
to get the employees involved in [a] situation that need[s] to be resolved
between us.
As for Musallam’s reference in his email to the need for Ali to send a letter to
Lorillard, Musallam believed Lorillard had withheld its approval for the same reason
Altria initially had and that he and Ali could ultimately obtain Lorillard’s approval by
resubmitting their application with the same changes they had previously made in
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their resubmission to Altria. Sometime on June 28, 2013, Ali resubmitted the
application to Lorillard. And at approximately 2:45 p.m., he emailed Musallam a copy
of the appraisal for Fanci Candy’s building and land that Musallam had referenced in
his email that morning.
Also on June 28, 2013, and in response to Musallam’s communications
indicating that the closing would not take place on July 1, 2013, Ali had his attorneys
send a letter to Musallam. The letter stated that Ali intended to close on July 1, 2013,
as provided by the Purchase Agreement; that under the Purchase Agreement,
Lorillard’s failure to approve the sale did not rescind the agreement; that without
Lorillard’s approval, the purchase price would be reduced as provided under Section
5.01(c) of the agreement; and that Musallam’s attempt to postpone the closing and his
failure to provide Ali with information necessary for closing amounted to an
anticipatory repudiation of the agreement. The letter further said that if Musallam
failed to close the deal on July 1, 2013, Ali would seek specific performance of the
Purchase Agreement.
Ali showed for the anticipated closing on July 1, 2013, but Musallam did not,
and the deal never closed. On July 2, 2013, Musallam sued Ali. In his petition, as
amended, Musallam sought declaratory relief, requesting the trial court to declare that
the Purchase Agreement was unenforceable and void because, among other reasons,
he and Ali “did not agree to all of the essential terms of the agreement.” Specifically,
Musallam alleged that he and Ali never agreed upon the total price of the sale. In the
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alternative, Musallam sought a declaration that he did not breach the Purchase
Agreement.3
Ali answered and brought counterclaims against Musallam, including a
counterclaim for breach of contract. The case proceeded to trial before a jury. In his
opening statements, Musallam focused the jury primarily on two theories of the case:
he told the jury that the evidence would show not only that he and Ali never reached
an agreement on the price of Fanci Candy’s sale but also that Ali had suffered no
damages. At the charge conference, the trial court proposed its charge, which
included Question No. 1, a question concerning contract formation. As submitted to
the jury, Question No. 1 read as follows:
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.”
3
Musallam also asserted, in the alternative, claims for fraud, negligence, and
breach of contract. Those claims are not at issue in this appeal.
13
Answer:____________________
Musallam told the trial court that he had no objections to the submission of
Question No. 1. Ali, however, did object, arguing that the question should not be
submitted to the jury because the evidence was “clear and unequivocal” that he and
Musallam intended the Purchase Agreement to be a valid, binding contract on the
date they signed it and consequently, there was no question that he and Musallam had
reached an agreement.
In response, Musallam maintained Question No. 1 had to be submitted to the
jury. He cited this court’s decision in Playoff Corp. v. Blackwell as the legal basis of his
argument. See 300 S.W.3d 451 (Tex. App.—Fort Worth 2009, pet. denied) (op. on
reh’g). He specifically quoted the following language from that opinion: “It is well
settled law that when an agreement leaves material matters open for future adjustment
and agreement that never occur, it is not binding upon the parties and merely
constitutes an agreement to agree.” See id. at 455. Musallam argued that “whether or
not the agreement on the FF[&]E[] and other issues was a material term” of the
Purchase Agreement was a question of fact that the jury needed to resolve “before we
can determine whether or not there was, in fact, a binding agreement.”
The trial court overruled Ali’s objection to Question No. 1 and submitted it to
the jury. The jury answered “Yes” to Question No. 1, found that Musallam had
breached the Purchase Agreement, and awarded Ali $904,924 in damages for past and
future lost profits. The trial court rendered judgment accordingly, ordering that Ali
14
recover from Musallam the damages the jury awarded, prejudgment interest,
attorneys’ fees, and costs. The court’s judgment also ordered that Musallam and
Fanci Candy take nothing from Ali and dismissed with prejudice all the claims they
had asserted against Ali.
Musallam filed a motion for new trial and a motion for judgment
notwithstanding the verdict or, in the alternative, motion to disregard (JNOV). The
trial court denied both motions. Musallam appealed.
II. THE TRIAL COURT DID NOT ERR BY DENYING MUSALLAM’S
JNOV MOTION AND ENTERING JUDGMENT ON THE JURY’S
VERDICT
In his first issue, Musallam challenges the trial court’s denial of his JNOV
motion. He argues that because the question whether a particular agreement is an
enforceable contract is a question of law, the jury’s finding that he and Ali “intended
to enter into an agreement” (i.e., its affirmative finding on Question No. 1) is
immaterial. And he argues that the evidence conclusively proves that he and Ali never
reached a meeting of the minds as to the total price of Fanci Candy’s sale, an essential
term of their agreement. Rather, he argues the Purchase Agreement merely
constitutes an unenforceable agreement to agree. He maintains the trial court erred
by failing to disregard the jury’s findings, denying his JNOV motion, and rendering
judgment in accordance with the jury’s verdict.
15
A. STANDARD OF REVIEW
A trial court may grant a JNOV motion only if a directed verdict would have
been proper, and it may disregard a jury finding only if the finding is unsupported by
evidence or the finding is immaterial. See Tex. R. Civ. P. 301; USAA Lloyds Co. v.
Menchaca, 545 S.W.3d 479, 505 (Tex. 2018) (citing Spencer v. Eagle Star Ins. Co. of Am.,
876 S.W.2d 154, 157 (Tex. 1994)); Davis v. Nat’l Lloyds Ins. Co., 484 S.W.3d 459, 467
(Tex. App.—Houston [1st Dist.] 2015, pet. denied). A jury finding is immaterial
when the corresponding question either: (1) should not have been submitted; (2) calls
for a finding beyond the province of the jury, such as a question of law; or (3) was
properly submitted but has been rendered immaterial by other findings. Se. Pipe Line
Co. v. Tichacek, 997 S.W.2d 166, 172 (Tex. 1999); Spencer, 876 S.W.2d at 157.
We review the denial of a JNOV motion under a legal-sufficiency or “no-
evidence” standard, meaning we credit evidence favoring the jury verdict if reasonable
jurors could, and we disregard contrary evidence unless reasonable jurors could not.
See Tanner v. Nationwide Mut. Fire Ins., 289 S.W.3d 828, 830 (Tex. 2009) (citing City of
Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005)). We will uphold the denial of a
JNOV motion if more than a scintilla of competent evidence supports the verdict. Id.
Evidence exceeds a scintilla when it rises to a level that would enable reasonable and
fair-minded people to differ in their conclusions. Merrell Dow Pharm., Inc. v. Havner,
953 S.W.2d 706, 711 (Tex. 1997).
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B. APPLICABLE LAW
To prevail on a breach of contract claim, a plaintiff must prove, among other
elements, the existence of a valid contract. See Harris v. Am. Prot. Ins. Co., 158 S.W.3d
614, 622–23 (Tex. App.—Fort Worth 2005, no pet.). For a valid contract to exist,
there must be (1) an offer, (2) an acceptance in strict compliance with the terms of the
offer, (3) a meeting of the minds, (4) each party’s consent to the terms, and (5) an
execution and delivery of the contract with the intent that it be mutual and binding.
McCoy v. Alden Indus., Inc., 469 S.W.3d 716, 728 (Tex. App.—Fort Worth 2015, no
pet.). In his brief, Musallam contends the third element is missing in this case, arguing
that the evidence conclusively establishes that he and Ali did not reach a meeting of
the minds on all the essential terms of their agreement.
“Meeting of the minds” describes the mutual understanding and assent to the
agreement regarding the subject matter and the essential terms of the contract. City of
The Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 720 (Tex. App.—Fort Worth
2008, pet. dism’d). In other words, to have a meeting of the minds, the parties to a
contract must agree to its essential terms. See 2001 Trinity Fund, LLC v. Carrizo Oil &
Gas, Inc., 393 S.W.3d 442, 449 (Tex. App.—Houston [14th Dist.] 2012, pet. denied);
City of The Colony, 272 S.W.3d at 720; see also T.O. Stanley Boot Co. v. Bank of El Paso,
847 S.W.2d 218, 221 (Tex. 1992) (“The material terms of the contract must be agreed
upon before a court can enforce the contract.”). If that occurs, a contract will not be
unenforceable merely because the parties left other, nonessential terms open for
17
future agreement. See Crews v. Dkasi Corp., 469 S.W.3d 194, 199 (Tex. App.—Dallas
2015, pet. denied); City of The Colony, 272 S.W.3d at 720. However, nonessential terms
left open for future negotiation are not part of the enforceable portion of the
contract. See Thedford Crossing, L.P. v. Tyler Rose Nursery, Inc., 306 S.W.3d 860, 868 (Tex.
App.—Tyler 2010, pet. denied).
It is only when contracting parties leave an essential term open for future
negotiation that no binding contract exists. See T.O. Stanley Boot Co., 847 S.W.2d at
221; City of The Colony, 272 S.W.3d at 720; see also Fischer v. CTMI, L.L.C., 479 S.W.3d
231, 237 (Tex. 2016) (“It is well settled law that when an agreement leaves material
matters open for future adjustment and agreement that never occur, it is not binding
upon the parties and merely constitutes an agreement to agree.” (citation omitted)).
An essential term is one that the parties would reasonably regard as a vitally important
ingredient of their bargain. Fischer, 479 S.W.3d at 237.
C. ANALYSIS
1. The Jury’s Finding on Contract Formation is Not Immaterial
We begin our analysis by addressing Musallam’s contention that the jury’s
answer to Question No. 1 is immaterial because whether an agreement constitutes an
enforceable contract is a question of law. It is true that a court may disregard a jury’s
finding as immaterial if the finding is in response to a question of law. See Spencer,
876 S.W.2d at 157. And it is also true that whether an agreement constitutes a
contract is generally a question of law. See, e.g., Effel v. McGarry, 339 S.W.3d 789, 792
18
(Tex. App.—Dallas 2011, pet. denied). But when a meeting of the minds is contested,
determination of the existence of a contract is a question of fact. In re S.M.H.,
523 S.W.3d 783, 795 (Tex. App.—Houston [14th Dist.] 2017, no pet.); Mahon v.
Mahon, No. 03-12-00033-CV, 2012 WL 3068205, at *2 (Tex. App.—Austin July 27,
2012, pet. denied) (mem. op.); Hallmark v. Hand, 885 S.W.2d 471, 476–77 (Tex.
App.—El Paso 1994, writ denied); see also Brandt Cos., LLC v. Beard Process Solutions,
Inc., No. 05-17-00780-CV, 2018 WL 4103210, at *10 (Tex. App.—Dallas Aug. 29,
2018, pet. granted, judgm’t vacated w.r.m.) (mem. op.) (“Generally, whether an
agreement is an enforceable contract is a question of law. However, when a meeting
of the minds is contested, the determination of the existence of a contract may be a
question of fact.” (citations omitted)). In the trial court, Musallam and Ali vigorously
disagreed on whether they reached a meeting of the minds on all the essential terms of
their agreement, and there was conflicting evidence at trial on that issue. Thus,
whether Musallm and Ali reached a meeting of the minds on all the essential terms of
their agreement was a question of fact that was appropriately submitted to the
factfinder—the jury, in this case. For that reason, we disagree with Musallam that the
jury’s affirmative finding on Question No. 1 is immaterial.
2. More Than a Scintilla of Evidence Supports The Jury’s Contract-Formation
Finding
We turn now to Musallam’s contention that the evidence conclusively
established that he and Ali never reached a meeting of the minds on all the essential
19
terms of the Purchase Agreement. Musallam specifically focuses on the Purchase
Agreement’s total-price term, and his argument runs as follows. Under the Purchase
Agreement, the total price of the transaction includes the value of Fanci Candy’s
Vehicles and FF&E. The Purchase Agreement in turn provides that the value of the
Vehicles and FF&E would be determined by a future agreement between Musallam
and Ali, and it does not provide any alternative mechanism to determine the value of
those items if they failed to reach such an agreement. The evidence at trial
conclusively proved that Musallam and Ali failed to reach a subsequent agreement as
to the value of the Vehicles and FF&E. Consequently, Musallam and Ali never
reached a meeting of the minds on the total price of the sale, an essential term of the
agreement.
For the reasons set out below, we conclude that more than a scintilla of
evidence supports the jury’s finding that Musallam and Ali agreed to the essential
terms for the sale and transfer of Fanci Candy in the Purchase Agreement.
a. The Vehicles
We begin with Musallam’s contention that he and Ali did not reach a meeting
of the minds on an essential term of their agreement because the evidence
conclusively proves that he and Ali never agreed upon the value of Fanci Candy’s
Vehicles.
The Purchase Agreement was introduced into evidence at trial. As noted
above, the Purchase Agreement provided that Musallam and Ali “agree[d] that the
20
value of the Vehicles . . . shall be the Kell[e]y Blue Book Value of the Vehicles on the
Closing Date.” The Purchase Agreement has both Musallam’s and Ali’s signatures,
and at trial they both testified that they had signed it. From this evidence, the jury
could have reasonably found that Ali and Musallam agreed that the value of Fanci
Candy’s Vehicles would be whatever their Kelley Blue Book value was on the date of
closing. An agreement to use the Kelley Blue Book valuation of Fanci Candy’s
Vehicles as of a certain date is sufficient to establish that Musallam and Ali agreed
upon the value of the Vehicles. See Penwell v. Barrett, 724 S.W.2d 902, 905 (Tex.
App.—San Antonio 1987, no writ) (noting that “[w]hen an agreement provides a
standard to be applied in determining price, the contract is sufficiently definite to be
enforceable” and that “[w]hen the parties to an agreement specify that a third person
is to fix the price, the contract is not unenforceable for lack of definiteness” (citations
omitted)). Accordingly, we conclude there is more than a scintilla of evidence to
support a finding that Musallam and Ali agreed upon the value of Fanci Candy’s
Vehicles.
b. The FF&E
We turn to Musallam’s contention that he and Ali did not reach a meeting of
the minds on an essential term of their agreement because the evidence conclusively
proves that he and Ali never agreed upon the value of Fanci Candy’s FF&E.
21
i. The Evidence Conclusively Proves Musallam And Ali Did Not Agree Upon
The Value of The FF&E
The Purchase Agreement provided that Musallam and Ali “agree[d] that the
value of the FF&E . . . shall be as mutually agreed upon by the parties prior to the
Closing Date.” Musallam contends the evidence conclusively proves that he and Ali
never reached a subsequent agreement on the value of the FF&E. With that
contention we agree. The documentary evidence shows that prior to the closing date,
Musallam sent Ali a document listing the items he believed should be included in
Fanci Candy’s FF&E and his proposed value for each item, for a total of $194,332.18.
Three days prior to the closing date, Ali responded with a written counteroffer in
which he proposed $52,956.26 as the value of the FF&E he wanted to purchase.4
There was no documentary evidence showing Musallam and Ali ever bridged the gap
between their respective proposals for the FF&E to be transferred as part of the sale
and, as a result, the value of the FF&E. Both Musallam and Ali testified that they
never reached an agreement upon the value of the FF&E. The evidence conclusively
4
Ali testified that in Musallam’s proposal for the value of the FF&E, he had
included items that did not constitute FF&E under the agreement. According to Ali,
Musallam’s proposed valuation of the FF&E included items that constituted
inventory, such as slushy machines, popcorn machines, coffee machines, nacho
machines, and cotton-candy machines. Ali further testified that Musallam had also
included vehicles in his valuation of the FF&E. Ali’s written counteroffer included a
spreadsheet showing how Ali reached his valuation for the FF&E. Ali’s valuation
excluded the vehicles that Musallam’s proposal had included. Further, Ali’s valuation
excluded items such as the slushy machines, popcorn machines, coffee machines,
nacho machines, and cotton-candy machines, among other items, all of which Ali
noted would remain with Musallam.
22
establishes that Musallam and Ali never agreed upon the value of the FF&E prior to
closing.
ii. More Than a Scintilla of Evidence Supports a Finding That The FF&E Was
Not an Essential Term or That a Reasonable Price Was Intended
Our conclusion that the evidence conclusively shows that Musallam and Ali did
not agree upon the value of the FF&E does not end the matter.5 For even in the
5
Musallam maintains that because the items of FF&E were part of the Purchase
Agreement’s total purchase price, his and Ali’s failure to agree upon the value of the
FF&E means they failed to agree upon the total purchase price, an essential term of
the Purchase Agreement. He elaborated in his reply brief, stating that the cases he
cited in his opening brief demonstrated that “every [Texas] appellate court, without
exception, has held that price is always a material term in a purchase agreement.”
Musallam appears to be arguing that as a matter of law, price is always an essential
term and that the failure to agree upon price always renders an agreement
unenforceable. But the cases Musallam cites do not support these propositions.
For example, Musallam cited Crisp Analytical Lab, L.L.C. v. Jakalam Props., Ltd.,
422 S.W.3d 85, 89–90 (Tex. App.—Dallas 2014, pet. denied). But the court in that
case did not state that price “is always a material term” in a purchase agreement;
rather, it stated that the essential terms of a contract “may” include, among other
things, the price to be paid. Id. The other cases Musallam cited provide similarly. See
Learners Online, Inc. v. Dallas Indep. Sch. Dist., 333 S.W.3d 636, 643 (Tex. App.—Dallas
2009, no pet.) (stating the essential terms of a contract “may” include, among other
things, price to be paid); see also Liberto v. D.F. Stauffer Biscuit Co., 441 F.3d 318, 324
(5th Cir. 2006) (noting “[a]s a general matter” that Texas courts have consistently held
that a contract “may” be held void for indefiniteness if it fails to specify, among other
things, the price to be paid).
Additionally, as we discuss in more detail below, it is not true that failure to
specify price always renders a contract unenforceable. See, e.g., David J. Sacks, P.C. v.
Haden, 266 S.W.3d 447, 450 (Tex. 2008) (per curiam) (“Where the parties have done
everything else necessary to make a binding agreement for the sale of goods or
services, their failure to specify the price does not leave the contract so incomplete
that it cannot be enforced. In such a case it will be presumed that a reasonable price
was intended.” (citation omitted)); Crisp Analytical, 422 S.W.3d at 90 (“While the
23
absence of such an agreement, the jury nevertheless could have found that Musallam
and Ali agreed to the sale and transfer of Fanci Candy in the Purchase Agreement.
That is so because the jury could have found either that the value of the FF&E was
not an essential term6 or that if it was, Musallam and Ali agreed to the other essential
terms in the Purchase Agreement, giving rise to a presumption that they intended the
FF&E to have a reasonable price.7 See Fischer, 479 S.W.3d at 240 (“[W]hen the parties
have done everything else necessary to make a binding agreement . . . , their failure to
specify the price does not leave the contract so incomplete that it cannot be enforced.
amount to be paid may be an essential term of a contract, the failure to specify a price
does not necessarily render the contract so indefinite as to be unenforceable.”
(quotations omitted)); see also Fischer, 479 S.W.3d at 241 (noting that where parties
intended to be bound to their agreement, presumption that reasonable price was
intended applies even if the price was left to be agreed by the parties and they failed to
agree).
6
In his opening brief, Musallam asserted that it is undisputed that every
component of the Purchase Agreement’s total purchase price was essential. That is
not so. For one thing, earlier in his opening brief, Musallam stated that throughout
the entire case, Ali had taken the position that the value of the FF&E was not a
material term of the Purchase Agreement. For another thing, in his response brief,
Ali argues that the value of the FF&E is not an essential term of the Purchase
Agreement. But perhaps most important to our analysis, Musallam acknowledged
there was a dispute over whether the value of the FF&E was a material term when he
insisted at the charge conference, over Ali’s objection, that Question No. 1 needed to
be submitted specifically because “whether or not the agreement on the FF[&]E[] and
other issues was a material term” was “a question of fact for the jury . . . that need[ed]
to be determined.”
7
As noted above, the charge instructed the jury that if Musallam and Ali
“agreed to other essential terms but failed to specify price, it is presumed a reasonable
price was intended.” Musallam did not object to this instruction.
24
In such a case it will be presumed that a reasonable price was intended.” (quoting
Bendalin v. Delgado, 406 S.W.2d 897, 900 (Tex. 1966) (internal quotation and citation
omitted))); Moody v. Betz, No. 01-96-00220-CV, 1998 WL 394312, at *8 (Tex. App.—
Houston [1st Dist.] July 16, 1998, no pet.) (not designated for publication) (noting in
case where jury found appellant and appellee reached an agreement and appellant
argued on appeal that the parties had never agreed upon two essential terms of the
agreement that, in order for the jury to have found an agreement, it must have
believed either that the parties agreed to the terms or that the terms were
nonessential); see also Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern
Jury Charges: Business, Consumer, Insurance & Employment PJC 101.13 (2018). We
conclude that more than a scintilla of evidence supports either of those findings.
(a) The Purchase Agreement
The jury could have considered the Purchase Agreement and reasonably
determined that the FF&E’s value was not an essential term or that Musallam and Ali
intended a reasonable price to apply to the FF&E.
The Purchase Agreement reflected Musallam’s and Ali’s agreement to
numerous terms. It set forth the specific stock and assets that were being purchased.
It provided a specific closing date. It enumerated which liabilities Ali would assume
and which ones he would not. It stated the conditions precedent to Musallam’s
obligation to sell the stock and Ali’s obligation to purchase the stock. It listed the
grounds upon which the agreement could be terminated and consequences of
25
termination. And it set forth the remedies available to Musallam and Ali in the event
of a breach or termination of the agreement.
The Purchase Agreement also addressed the consideration to be paid, which
was to be a value composed of multiple components. There was a cash component
for Fanci Candy’s stock. And there was the additional component of the value of the
Purchased Assets. The Purchased Assets, in turn, were composed of six categories.
For all but one of those categories—the FF&E—the Purchase Agreement provided a
specific mechanism for determining value.
Thus, the value of Fanci Candy’s Inventory would be based on an appraisal
done at Musallam’s expense. The value of Fanci Candy’s Land and Building would be
based on an appraisal done at Ali’s expense. The value of Fanci Candy’s Vehicles
would be their Kelley Blue Book value. And the value of Fanci Candy’s Accounts
Receivable would equal the total amount of the accounts. It is only the value of Fanci
Candy’s FF&E that the Purchase Agreement left open for a future agreement between
Musallam and Ali. Given the level of detail and specificity of all the non-FF&E
terms, including the other terms related to the price, the jury could have reasonably
inferred that the reason Musallam and Ali left the value of the FF&E open for future
agreement was because the FF&E’s value was not a vitally important ingredient of
their bargain and, thus, was not an essential term.
Additionally, the Purchase Agreement expressly provided that Altria’s and
Lorillard’s formal written approval of the sale was material to the agreement and that
26
the failure to secure approval from both companies would result in a $250,000
reduction of the purchase price. It also gave Ali the right to terminate the agreement
if both Altria and Lorillard failed to approve the sale. There were no similar
provisions with respect to the FF&E. Thus, the Purchase Agreement reflected both
that Musallam and Ali knew how to provide that a particular term was essential to
their bargain and that they did not do so with respect to the value of the FF&E.
From this, the jury could have reasonably inferred that Musallam and Ali did not
intend for the Purchase Agreement’s enforceability to hinge on their subsequent
agreement to the FF&E’s value—i.e., that they did not intend to make it a condition
precedent to the Purchase Agreement’s enforceability—but rather that they intended
to be immediately bound to the Purchase Agreement. See Gen. Metal Fabricating Corp.
v. Stergiou, 438 S.W.3d 737, 748 (Tex. App.—Houston [1st Dis.] 2014, no pet.) (“The
critical issue for determining enforceability when the parties agree that some terms
will remain open is whether the parties intended for their agreement to be a present
binding (enforceable) agreement in the absence of an agreement on the remaining
terms or whether they intended their agreement to have no legal significance until
agreement on the remaining terms is reached.”). Additionally, as noted above, the
jury could have reasonably found that Musallam and Ali agreed upon the other
essential terms in the Purchase Agreement. Thus, as it was instructed in the charge,
the jury could have found that Musallam and Ali intended the FF&E to have a
reasonable price. See Fischer, 479 S.W.3d at 241 (noting that where the parties
27
intended to be bound to their agreement, the presumption that reasonable price was
intended applies even if the price was left to be agreed by the parties and they failed to
agree).
(b) Ali’s And Musallam’s Testimony
Ali testified that at the time Musallam approached him regarding his potential
purchase of Fanci Candy, A to Z Wholesalers did not have a distribution agreement
with Altria allowing it to directly purchase Philip Morris’s tobacco products, nor did it
have a direct distribution agreement with Lorillard allowing it to directly purchase
Lorillard’s tobacco products. He also testified that Altria and Lorillard rarely entered
into direct distribution agreements with new distributors. Ali stated that to him, the
value in purchasing Fanci Candy was that doing so would provide a way for him to be
grandfathered into Fanci Candy’s direct distribution agreements with Altria and
Lorillard.
Musallam also testified concerning the value of Fanci Candy’s direct
distribution agreements. He stated that when he decided to sell Fanci Candy, he
realized its real value was in those agreements and that to sell Fanci Candy, he would
need to find a buyer who could benefit from the agreements. Musallam said that
when he first approached Ali to sell Fanci Candy, the first thing Ali wanted to look at
was the details of Fanci Candy’s distribution agreements and how much money he
could make with those agreements. Musallam acknowledged that if he were in Ali’s
28
shoes, he would be interested in the very same thing. According to Musallam, “That’s
the value. That’s where the money is.”
Ali and Musallam both testified that the direct distribution agreements were
like “golden ticket[s]” in the tobacco distribution business. They also testified that the
$500,000 in goodwill reflected in the Purchase Agreement’s total purchase price was
based upon the Altria and Lorillard agreements.
In contrast to the direct distribution agreements, Ali testified that the FF&E
was not an important part of the deal between Musallam and him.8 Ali stated that the
reason he and Musallam did not specify a price for the FF&E in the Purchase
Agreement was because the FF&E were a nominal part of the deal, and the FF&E
provision was “sort of a throw-in.” He stated that he had reviewed Fanci Candy’s
financial statements from the previous five years and that those documents showed
the reported value of Fanci Candy’s FF&E for each of those years was approximately
$48,612. Musallam testified that in documents he reported to his bank and the IRS,
8
In his reply brief, Musallam contends there is evidence that the value of the
FF&E was important to him and that it does not matter that it was not important to
Ali. But this turns our standard of review on its head insofar as it attempts to credit
evidence contrary to the jury’s verdict and discredit evidence favorable to it. See
Tanner, 289 S.W.3d at 830 (noting that in reviewing a trial court’s ruling on a motion
for judgment notwithstanding the verdict, we credit evidence favoring the jury verdict
if reasonable jurors could, and disregard contrary evidence unless reasonable jurors
could not). At most, Musallam’s citation to contrary evidence establishes that the jury
heard conflicting evidence concerning the FF&E’s importance. It was for the jury to
determine the credibility of the witnesses and the weight to give their testimony. See
City of Keller, 168 S.W.3d at 819. And it also was for the jury to resolve conflicts in the
evidence. See id. at 820.
29
he listed the value of Fanci Candy’s FF&E as $48,612. And Ali testified that although
he disagreed with Musallam’s initial valuation of the FF&E, if it came down to it, he
would have paid Musallam whatever amount he needed to for the FF&E in order to
close the deal.
Ali also testified as follows regarding the Purchase Agreement:
[W]e basically took the elements of the [letter of intent], put them into
the contract, renegotiated some terms in the contract, had our attorneys
look at it, they redlined it, made their comments, made their changes,
and after everybody involved, we finally felt we got a definitive
agreement that Mr. Musallam and I signed the contract for the purchase
of both the stock and the assets of Fanci Candy.
We conclude that from the above testimony, the jury could have reasonably
found that the value of the FF&E was not a vitally important ingredient of
Musallam’s and Ali’s bargain and, thus, was not an essential term. We also conclude
that the jury alternatively could have reasonably found that Musallam and Ali agreed
upon the other essential terms in the Purchase Agreement and intended to be
immediately bound by it; thus, as the charge instructed, the jury could have found that
Musallam and Ali intended the FF&E to have a reasonable price.
In sum, we conclude that the jury’s answer to Question No. 1 was not
immaterial and that more than a scintilla of evidence supports the jury’s finding that
Musallam and Ali agreed to the sale and transfer of Fanci Candy in the Purchase
Agreement. Accordingly, we hold the trial court did not err by denying Musallam’s
JNOV motion and entering judgment in accordance with the jury’s verdict.
30
3. The Jury’s Finding on Contract Formation is Supported by Legally
Sufficient Evidence
On original submission, we did not construe Musallam’s first issue to include a
challenge to the sufficiency of the evidence to support the jury’s finding on Question
No. 1. He did not explicitly complain about the sufficiency of the evidence to
support the jury’s finding on that question, in contrast to his second issue, in which he
expressly complained that insufficient evidence supported the jury’s award of
damages. Nor did he set forth in his brief the typical standards of review applicable to
a sufficiency challenge. Further, in his response brief, Ali asserted no less than four
times that Musallam did not raise in his opening brief a challenge to the sufficiency of
the evidence supporting the jury’s answer to Question No. 1. And in his reply brief,
Musallam did not say anything to contradict Ali’s assertions. However, heeding the
supreme court’s instruction, we will address whether sufficient evidence supports the
jury’s answer to Question No. 1.
We note that the relief Musallam requested with respect to his first issue is that
we reverse the trial court’s judgment, render judgment in his favor on his declaratory
action, and remand this case to the trial court, not for a new trial, but rather for a
determination of whether he is entitled to attorney’s fees. Thus, we address only
whether the jury’s finding is supported by legally sufficient evidence. See, e.g., Maynard
v. Booth, 421 S.W.3d 182, 183 (Tex. App.—San Antonio 2013, pet. denied) (reviewing
appellant’s sufficiency complaint only for legal sufficiency where appellant requested
31
court to render judgment in her favor and did not request, in the alternative, a remand
for a new trial).
a. Standard of Review
We may sustain a legal-sufficiency challenge—that is, a no-evidence
challenge—only when (1) the record discloses a complete absence of evidence of a
vital fact, (2) the rules of law or of evidence bar the court from giving weight to the
only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital
fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the
opposite of a vital fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014) (op.
on reh’g); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998) (op.
on reh’g). In determining whether legally sufficient evidence supports the finding
under review, we must consider evidence favorable to the finding if a reasonable
factfinder could and must disregard contrary evidence unless a reasonable factfinder
could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of
Keller, 168 S.W.3d at 807, 827.
b. Discussion
Unsurprisingly, because we review a trial court’s ruling on a JNOV motion
under a legal-sufficiency standard of review, see Tanner, 289 S.W.3d at 830, our analysis
with respect to the trial court’s ruling on Musallam’s JNOV motion, as well as the
evidence we referenced in that analysis, is equally applicable here. We decline to
unnecessarily belabor this opinion with repetitive analysis. Instead, we adopt our
32
above analysis for purposes of the present discussion regarding whether legally
sufficient evidence supports the jury’s affirmative finding on Question No. 1 and
reference that analysis and evidence as needed.
We focus our sufficiency review on the only element of contract formation that
Musallam has challenged: meeting of the minds. Given Musallam’s arguments, we
consider whether legally sufficient evidence supports the jury’s implied finding that
Musallam and Ali reached a meeting of the minds on all the essential terms of their
agreement.
i. Vehicles
Musallam asserts that he and Ali did not reach a meeting of the minds on all
the essential terms of their agreement because they did not agree upon the value of
the Vehicles. But as we have already discussed, there is legally sufficient evidence to
support a finding that they did so agree. The Purchase Agreement was entered into
evidence, and for the reasons we explained above, the jury could have reasonably
concluded from it that Musallam and Ali agreed that the value of the Vehicles would
be whatever their Kelley Blue Book values were on the date of closing. See Penwell,
724 S.W.2d at 905 (noting that “[w]hen an agreement provides a standard to be
applied in determining price, the contract is sufficiently definite to be enforceable”
and that “[w]hen the parties to an agreement specify that a third person is to fix the
price, the contract is not unenforceable for lack of definiteness” (citations omitted)).
33
ii. FF&E
Musallam also asserts that he and Ali did not reach a meeting of the minds on
all the essential terms of their agreement because they did not agree upon the value of
the FF&E. As we have already discussed, we agree that the evidence shows Musallam
and Ali never agreed upon the value of the FF&E. But that does not end the analysis.
For even in the absence of such an agreement, the jury still could have found they
reached a meeting of the minds on the essential terms of their agreement.
First, as we explained above, from the Purchase Agreement, Ali’s testimony,
and Musallam’s testimony, the jury could have reasonably concluded that Musallam
and Ali left the value of the FF&E open for future agreement because the FF&E’s
value was not a vitally important ingredient of their bargain and, thus, was not an
essential term of their agreement. See Moody, 1998 WL 394312, at *8 (noting in case
where jury found appellant and appellee reached an agreement and appellant argued
on appeal that the parties had never agreed upon two essential terms of the agreement
that, in order for the jury to have found an agreement, it must have believed either
that the parties agreed to the terms or that the terms were nonessential).
Second, as we explained above, from the Purchase Agreement, Ali’s testimony,
and Musallam’s testimony, the jury could have reasonably concluded that the value of
the FF&E was a material term but that Musallam and Ali agreed to the other essential
terms of their agreement, giving rise to the presumption, stated in the jury charge, that
Musallam and Ali intended the FF&E to have a reasonable price. See Fischer,
34
479 S.W.3d at 240 (“[W]hen the parties have done everything else necessary to make a
binding agreement . . . , their failure to specify the price does not leave the contract so
incomplete that it cannot be enforced. In such a case it will be presumed that a
reasonable price was intended.” (quoting Bendalin, 406 S.W.2d at 900)); see also Comm.
on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Business, Consumer,
Insurance & Employment PJC 101.13 (2018).
Thus, the record does not show a complete absence of evidence that Musallam
and Ali agreed upon all the essential terms of their agreement. Further, no rules of
law or of evidence prohibited the Purchase Agreement, Ali’s testimony, or Musallam’s
testimony from being considered. The Purchase Agreement, Ali’s testimony, and
Musallam’s testimony constitute more than a mere scintilla of evidence that Musallam
and Ali agreed upon all the essential terms of their agreement. And since the evidence
supports that finding, it follows that the evidence does not conclusively establish the
contrary. Accordingly, we conclude legally sufficient evidence supports the jury’s
implied finding that Musallam and Ali reached a meeting of the minds on all the
essential terms of their agreement.
We overrule Musallam’s first issue.
III. CONCLUSION
We have considered on remand the issues Musallam properly preserved but
which the supreme court did not address. Having overruled Musallam’s first issue,
35
and having previously overruled his second and third issues, which are not at issue on
remand, we affirm the trial court’s judgment.
/s/ Lee Gabriel
Lee Gabriel
Justice
Delivered: May 2, 2019
36