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

MUSA (‘MOSES’) N. MUSALLAM, Appellant

V.

AMAR B. ALI, Appellee
2

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 
3

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 
4

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. 

 

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

Reynolds Tobacco Company. 
5

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, 

 

2Ali 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 
6

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-inprincipal, 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. 
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 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.” 
8

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 
9

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 
10

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:
11

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
12

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 
13

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.”

 

3Musallam also asserted, in the alternative, claims for fraud, negligence, and 

breach of contract. Those claims are not at issue in this 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 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 
15

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. 
16

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 “noevidence” 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).
17

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 
18

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 
19

(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 
20

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 
21

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.
22

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 

 

4Ali 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. 
23

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 

 

5Musallam 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 
24

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.” 

7As 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. 
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 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 
26

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 
27

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 
28

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 
29

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. 
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 

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. 
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 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 
32

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 
33

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)). 
34

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, 
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, 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,
36

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