## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 16

- 00282

- CV

___________________________

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 

### M USA 

### ( ‘ M OSES 

### ’ ) N. M USALLAM 

### , Appellant

V



### . A MAR 

### B. A LI 

### , Appellee2 MEMORANDUM OPINION ON REMAND
This case is before us on remand from the supreme court. I n June 2013, appellant Musa (‘Moses’) N. Musallam and appellee Amar B. Ali signed a document
entitled “S tock T ransfer and A sset P u rchase and S ale A greement ” ( 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 app ealed to this court, raising

t hree issues. In the first , he argued the trial court erred by rendering judgment on the jury’s verdict because the P urchase A greement was not a binding, enforceable

contract
. I n the second, Musallam argued the jury’s award o f 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, w e did not address Musallam’s first issue because we
concluded he had waived it. W e 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 issu es 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 it s merits

. See Musallam v. Ali , 560 S.W.3d 636, 639 (Tex. 2018). Musallam al so asked the supreme court to address3

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 tha t the Purchase Agreement was not a binding,
enforceable contract , t he 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] no t 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 f irst 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 affir m.

I. PROCEDURAL AND BACKGROUND FACTS In 2007, Musallam acquired Fanci Candy Company , a business that distribute s tobacco products (among other things) to convenience stores in north Texas. Fanci Candy h eld 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
Co mpany
. Fanci Candy’s direct distribution agreement with Altria allowed it to4

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 prod ucts manufactured by Lorillard Tobacco Company, Inc. 1 Because of the way the tobacco industry works, i t i s 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 purchas e tobacco products directly from
Altria or Lorillard but d oes not already have direct distribution agreements with one of them, the main way for it to get those agre ements i s to purchase a company that
ha s an existing agreement with Altria or Lorillard and then be grandfathered into the acquired company’s agreements. Ali’s father own ed A to Z Wholesalers, Inc. Like Fanci Candy, A to Z
Wholesalers distribute d tobacc o products to convenience stores. But u nlike Fanci Candy, A to Z Wholesalers d id not have a direct distribution agreement with Altria allowing it to directly purchase tobacco products from Philip Morris or U.S.
Smokeless Tobacco , nor d id 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 th em from a middleman

.

1 At trial, the evidence showed that Lorillard had since been acquired by R.J. Reynolds Tobacco Company.5

Ali was A to Z Wh olesalers’ 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 whi ch 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 product s at the lower cost F anci Candy was able to. He could then replace A to Z Wholesalers’ middleman and sell th ose tobacco products to A to
Z Wholesalers (and other distr ibutors) himself at the same marked

- up price the middleman had been charging. Because Ali c ould sell the tob acco products at a higher price than it cost him to acquire them , he w ould 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.
Smokel ess 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 Z6

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
outline d 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 se nt 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 Cand y to be a corporate acquisition by A to
Z Wholesalers. So Musallam and Ali decided to resubm it the approval application to Altria , this time showing th at 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 w ere 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 th e purchasers. On May 1, 2013, Ali resubmitted the application to Altria , clarifying that A to Z
Wholesalers was l isted as the buyer, so Musallam recommended they list the buyer s as Ali’s father and A to Z Wholesalers instead of Ali.7

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 a pproved Ali for direct distributor status based on his plan to purchase Fanci Candy ’s stock

. B y 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 it s 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
believe d Lorillard would approve Ali’s purchase of Fanci Candy. Ali, however, asked
Musallam to obtain formal written approval from Lorillard

. So o n June 6, 2013, Musallam replied to the email from Lorillard , asking it to “please send [him] a formal
letter on L orillard letterhead approving [Ali] for [the] Stock ownership change[.]” On June 18 , 2013

— having secured Altria’s formal approval but still lacking
Lorillard’s

—

M usallam and Ali signed the Purchase Agreement. Section 1.01 of the
agreement provided t hat A li 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 A rticle II of the Purchase Agreement, Ali agreed to accept, and Musallam agreed to convey, what the provision referred to

as “Purchased Assets.”8

Under Section 1.02, Purchased Assets referred to the terms “Land,” “Building,” “Inve ntory,” “Vehicles,” “Furniture, Fixtures and Equipment,” (FF&E)
and “Accounts Receivable .” Each of th o se terms was defined in the agreement. The Purchase Agreement also set forth the purchase price for th e transaction in
Secti on 1.03 : 1.03 Consideration . As co nsideration 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 comp osi ng 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 Agr eement, 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 mus t 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 de fined under the Article and Agreement, shall be the Kell [e] y Blue Book Value of the Vehicles on the Closing9

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 Purcha se 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, t hat section state s t he 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 transfe r 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 Compan y, 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 wi th [Musallam]

. Accordingly, should [Ali] fail to obtain written approval from either company (or written approval secured by [Musallam] ), the10

Purchase Price shall be reduced to Two Hundred and Fifty Thousand Dollars and 00/100 ($250,000.00).
After execu ting 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 licens ed appraiser to perform an appraisal of Fanci Ca ndy’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. A t some point, Musallam provided Ali with his pr oposed 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,

t he deal went awry in the face of at least three hurdles

. First , o n June 2 6 , 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 valu ation 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:11

I have reviewed your proposed closing statement [,] and the numbers are completely unacceptable. I am willing to negotiate the F F [&] 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 ma ke 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 a t 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 actio n 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 ha d withheld its approval for the same reason Altria initially had and that he and Ali could ultimately obtain Lorillard’s approval by resubmitting the ir application with the same changes they had previously made in12

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 i n response to Musallam’s communications indicating that the closing would not take place on July 1, 2013 , Ali had his attorney s send a letter to Musallam. The letter stated that Ali intended to close on July 1, 2013, as provided by the Purchase Agree ment; 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 a ttempt 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 see k 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 rel ief, 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 the13

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 ca se proceeded to trial before a jury. In his opening statements, Musallam focused the jury primarily on two theories of the case : h e 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 t his appeal.14 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 agreem ent
. 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

const itutes 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 aw arded Ali $ 904,92 4 in damages for past and future lost profits. The trial court rendered judgment accordingly , ordering that Ali15

recover from Musallam the damages the jury awarded, prejudgment interest, attorneys’ fees, and costs. The court’s judgment al so ordered that Musallam and Fanci Candy take nothing from Ali and dismissed with prejudice all the claims they had asserted against Ali

. Musallam f

iled 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.
I I
. THE TRIAL COURT DID NOT ERR BY DENYING M USALLAM’S JNOV MOTION AND ENTERING JUDGME NT ON THE JURY’S VERDICT In his first issue, Mus a llam challenges the trial court’ s denial of his JNOV
motion. H e 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 Que stion No. 1) is
immaterial

. And he argues that the evidence conclusively prove s 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 Agreeme nt merely constitutes an unenforceable agreement to agree. H e 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.16 A. S TANDARD OF R EVIEW A t rial 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 , 54 5 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 cor responding 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. Tich acek , 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 Tann er 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 s cintilla 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 (T ex. 1997).17 B
. A PPLICABLE L

AW 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 t hat it be mutual and binding. McCoy v. Alden Indus., Inc. , 4 6 9 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 agree d 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 for18

future agreement. See Crews v. Dkasi Corp. , 469 S.W.3d 194, 199 (Tex. App.

— Dallas
2 015, 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 Fi scher 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. A NALYSIS
1. The Jury’s Finding on Contract Formation is Not Immateria l We begin our analysis by addressing Musallam’s contention that the jury’s answer to Question No. 1 is immaterial because whether a n agreement constitutes an enforceable contract is a question of law. It is true that a court may disregard a jury’s
findin g 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, 79219

(Te x. 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 Co s ., LLC v. Beard Process Solutions,
Inc. , No. 05

- 17

- 00780

- CV, 20 18 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 , a nd the re was conflic ting 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 re ason, 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

e stablished that he and Ali never reached a meeting of the minds on all the essential20

terms of the Purchase Agreement

. Musallam specifically focuses on the Purchase Agreement’s total

- price term , and his argument runs as follows

. U nder the Purchase Agreeme nt, the total price of the transaction include s the value of F anci Candy’s
Vehicles and FF&E. T he 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 n ot provide any alternative mechanism to determine the value of
those items if they fail ed 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 a nd FF&E. Consequently, Musallam and Ali never reached a meeting of the min ds 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 findin g that Musallam and Ali agree d 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 th eir 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 A li “ agree [ d ] that the21

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 V ehicles would be whatever the ir Kell e y Blue Book value was on the date of closing. A n agreement to use the Kell e y Blue Book valuation of Fanci Ca ndy’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
standa rd 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 ” (citat ions omitted) )

. Accordingly, we conclude there is more than a scintilla of evidence t o 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.22

i. The Evidence Conclusively Proves Musallam And Ali Did Not Agree Upon The Value o f The FF&E The Purchase Agreement provide d 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

nev er reached a subsequent agreement on the value of the FF&E. W ith that
contention w e agree. T he 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 ev idence 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 a n agreement upon th e 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 showin g 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 mac hines , among other items, all of which Ali noted would remain with Musallam.23

establishes that Musallam and Ali never agreed upon the value of the FF&E prior to closing.
i i. More Than a Scintilla of Evidence Supports a Finding That The FF&E Was Not an Essential Term or That a Reasonab le Price Was Intended Our conclusion that the evidence conclusively shows that Musallam and Ali did not agree upon the value of the FF&E d oes 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 th ey 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 case s 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 fa ilure 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 good s 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 (“Whi le the24

absence of such an agreement , the jury nevertheless could have found that M usallam
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 a n essential term 6 or that if it was , Musallam and Ali agreed to the other ess ential

terms in the Purchase Agreement , giving rise to a presumption that they intended the
FF&E to have a reas onable price. 7 See Fischer , 479 S.W.3d at 24 0 (“[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 assert ed that it is undisputed that every component of the Pu rchase Agreement’s total purchase price was essential . That is not so. For one thing, earlier in his opening brief , Musallam state d that throughout the entire case, Ali had taken the position that the value of the FF&E was not a material term of the Purc hase 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 val ue 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 quest ion 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.” Musal lam did not object to this instruction.25

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 appel lant 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)

. W e conclude that more than a scintilla of evidence supports either of those findings. (a) The Purchase Agreement
T he 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 reflect ed 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 of26

termination. And it set forth the remedies available to Musallam and A li 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, w ere composed of six categories

. For a ll 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 V ehicles
would be t heir 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 becaus e 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 a greement and that27

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.
Fr om 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 (Te x. App.

— Houston [1 st Dis.] 2014, no pet.) (“ The critical issue for determining enforceability when the parties agree that so me 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 parties28

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 fail ed 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 distribu tion agreement with A ltria allowing it to directly purchase Philip Morris ’s tobacco products , n or did it
have a direct distribution agreement with Lorillard allowing it to directly purchase
Lorillard’s tobacco products

. He also testified that Altria and L orillard rarely entered into direct distribution agreements with new distributors. Ali stated tha t 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 agreeme nts 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 Ca ndy, 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 mone y he could make with those agreements . Musallam acknowledged that if he were in Ali’s29

shoes, he would be interested in the very same thing. According to Musallam, “ T hat’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. T hey also testified that the $500,000 in goodwill reflected in the Purchase Agreement’s total purchase price was based upon the Altria and Lorillard agreemen ts. 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 Fa nci 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 h ead insofar as it attempts to credit evidence contrary to the jury’s verdict and discredit evidence favorable to it. See Tann er , 289 S.W.3d at 830 (noting that in reviewing a trial court’s ruling on a motion for judgment notwithstanding the verdict, we cr edit 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 820.30

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 agreeme nt 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 th e above testimony, the jury could have reasonably
found that the value of the FF&E was not a vitally important ingre dient 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
i mmediately 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 sci ntilla of evidence supports the jury’s finding that Musallam and Ali agree d 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 acco rdance with the jury’s verdict

.31

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 sup port 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 su pported 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, i n 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 a ssertions. However, heeding the supreme court’s instruction, we will address whe ther 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 re verse the trial court’s judgment, render judgment in his favor on his declaratory action, and r emand this case to the trial court, not for a new trial, but ra ther for a determination of whether he is entitled to attorney’s fees. T hus, we address only whether the jury’s finding is supported by legal ly sufficie nt evidence. See, e.g., Maynard
v. Boot h , 421 S.W.3d 182, 183 (Tex. App.

— San Antonio 2013, pet. denied) ( reviewing appellant’s sufficiency complaint only for legal sufficiency where appellant requested32

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 givi ng 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.3 d 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 Unsurp risingly, because we review a trial court’s ruling on a JNOV motion under a legal

- sufficiency standard of review, s ee 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

. W e decline to unnecessarily belabor this opinion with repetitive analysis. Instead, we adopt our33

above analysis for purposes of the present discussion regardin g 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: me eting 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 term s of their agreement because they did not agree upon the v alue of
the V ehicles. But as we have already discussed, there is legally sufficient evidence to
support a find ing that they did so agree. T he 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 Kell ey Blue Book v alue s w ere 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))

.34 i i
. FF&E Musallam also asserts that he and Ali did not reach a meeting of the minds on
all the essential term s of their agreement because they did not agree upon the v alue 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 e ven in the absence of such an agreement, the jury still could have found they reached a meeting of the mind s 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 c ould 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 agree ment, 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 ,35

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, t he record do es 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 conside red. T he 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 follow s that the evidence does not conclusively establish th e 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

. H aving overruled Musallam’s first issue,36

and having previously overruled his second and t hird issues, which are not at issue on remand, we affirm the trial court’s judgment.

/s/ Lee Gabr iel
Lee Gabriel Justice
Delivered: May 2, 2019