COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS J . TODD SOUTH ERN, I NDEPENDEN T EXECUTOR OF THE ESTATE OF RAUL“DUD E” CROUSE, DECEASED, Appellant,

v. KURT E. GOET TI

NG, SR., Appellee

. § § § § § § No. 08-09-00306- CV

Appea l from the 327th District Court of El Paso County , Texas (TC# 2008-053)

O P I N I O N I n two issues, J

. Todd Southern, Appellant and Ex ecutor , challeng es the l ega l and fac tual suffic i en cy of t he evidence to support both the j ury ’s findi ng that Raul “Dude ” C rouse, decea sed, and Kurt E. Goetting , Sr., Appellee , enter ed int o an enforce able contrac t for the offse t of rent and the jury ’s awa

rd of renta l-offse t damag es to Goetting

. I n his third issue, Southern complains that the trial court e rre d in refusingto awar d attorney ’s fe es. We reve rse. BACK GR OUND I n 1996, pursuant to an oral agre em ent, Goetting sold to Crouse a one-ha lf interest in a building and lot known as 1602 Olive in El Paso, Texas, for $150,000 wit h i n t er es t
. At trial, 1 Goetting stated that Cr o u s e p ai d h im more than $170,000 and obtained a one-ha lf interest in the proper ty
. Crouse operated a succe ssful business from the proper ty and paid one-ha lf of the proper ty taxes from 1996 to 2002. Although there is no dispute that Crouse fully paid for his one-ha lf interest in the proper

ty , Goetting never

executed a de ed to any

part of the proper

ty in Crouse’s name

.

Alth ough

Goe tting ’s attor ney

pr epar ed a letter agreem ent, neith er Go etting nor Crouse executed the letter 1 agreem ent or any

other do cum ent m em or ializing the term s of the ora l agreem ent.There afte r, Goetting orally ag ree d to repur chase Crouse’s one-ha lf share of the proper ty and paid Crouse $1,200 per month for sever al y ea rs . After Crouse died in May 2007, Goetting soon stopped making pay

ments for the repur chase of the proper ty and claimed that he owed nothing more for the r epurc hase. Southern broug ht suit for specific perf ormanc e of the convey ance of an equitable and leg al one-ha lf interest in the Olive proper ty , soug ht convey ance of the proper ty by deed or, alternatively , partition and sale of Crouse’s one-ha lf interest of the Olive proper ty and delivery of the proce eds to Crouse’s estate. Southern also soug ht a decla ratory judgme nt acknow ledg ing one-ha lf interest in the Olive proper

ty
. Southern pursued relief under other alternative theories inclu d i n g fr aud, unjust enric hment, “mon ey wr o n g fully obtained,” and brea ch of ag ree ment. Southern also pray ed for 2

rea sonable a

nd nece ssary

attorney fee s. At trial, Goetting adm i t t ed that he had paid Crouse $76,180 of the $150,000 repur chase amount for the proper

ty but had not pa id the rema ining balanc e of $73,820. Although not pleade d in his answe r, Goetting asser ted during trial that Crouse had ag ree d to pay rent during his occupa ncy of the proper

ty and, beca

use Crouse had not done so during his purcha se of the proper ty , Crouse had ag ree d to offse t the unpaid re nt ag ainst Goetting ’s re purcha se oblig ations. Goetting admitted that he did not make any rent calculations unt il afte r C rouse had died and sai d that he never discussed any renta l fig ures or terms with Crouse. Be fo re clos ing arguments, Southern prese nted witness testimony in support of his reque st to recove r attorne y fee s. T h e t ri al court g rante d Goetting ’s motion for direc ted verdic t as to fra ud but denie d t h e

Alth ough

Southern also ple aded pr om issory estop pel a s an alternative basis of reco very , he w ithdrew that 2 cause of action d uring trial. 2motion on all other bases while withholding its ruling on Southern’s decla ratory judgme nt reque st. The jury found that Goetting failed to comply with the repur chase ag ree ment and assessed damag es of $73,820, the amount which rema ined unpaid under the repur chase ag ree ment absent any alleg ed rent offse t, in favor of Southern. Howeve r, in Question 3 of the verdic t form, the jury also found that Crouse failed to comply with an ag ree ment to pay rent for the Olive proper ty , and in Question 4, the jury awa rded G oetting da

mag es for unpaid re nt in the amount of $73,820. I n Question 7, despite 3 having awa

rded damag es to Southern, the jury ref used to awa

rd Southern any attorney ’s fee s for his service s on behalf of

Crouse’s e state. The trial court entered a t ake- no t h i n g j udg ment, did not awa rd attorney ’s fees, and denied both Southern’s post -judg ment motion to disreg ard the jury ’s finding s, where in he challeng ed the leg al sufficie ncy of the jury ’s verdic t on Questions 3, 4, 5, 6, and 7, and his motion for decla ratory judgme nt. Southern’s motion for new trial, which was overr uled by operation of law, challeng ed the leg al and fac tual sufficie ncy of the evidenc e to support the jury ’s finding s on Questions 3 and 4, and alleg ed that beca

use t here was no evidenc e to support them, the j ury ’s answers on Questions 5, 6, and 7 of the court’s char g e wer e ag ainst the overw helming wei gh t of the evidenc e and wer e manifestly

unjust. DISCUSSIO N Be cause Southern objected to the t rial court’s submissi on of Questions 3 and 4 to the j u ry upon the bases of both no evidenc e and leg ally insuffici en t evidence, raised his leg al sufficie ncy

Ass erting th at there w as no evidence o f any agreem ent by

Crouse to pay

rent d uring his purchase of the 3 Olive pro per ty , that there w as no evidence o f any am ount Crouse ow ed for re nt, and that the am ounts of re nt pr ovided by Goetting

w ere legally

insu ff icient, Southern obj ectedto the su bm ission of Ques tions 3 and 4 to the j ury . T he trial co urt overr uled Southern’ s ob j ections. 3challeng e in his motion to disreg ard the jury ’s answe rs, and challeng ed the leg al and fac tual

sufficie ncy of the evidenc e in his motion for new trial, we fi n d h i s i s s ues on appea l are proper ly prese rved for our cons i d er at i o n . Cecil v. Smith , 804 S.W .2d 509, 510-11 (Tex. 1991) (in a jury trial, a challeng e to the leg al sufficie ncy of the evidenc e is prese rved for appea l by raising the specific complaint in: (1) a motion for instructed verdic t; (2) a motion for j u d gm en t n ot withstanding the verdic t; (3) an objection to the submissi on of the issue to the jury ; (4) a motion to disreg ard the jury ’s answe r to a vital f act issue; or (5) a

motion for new trial); accord T E X
. R. C I V
. P. 301. I n I ssue One, Southern contends that the jury ’s finding that Crouse and Goetting enter ed into

an enfor cea

ble contra ct fo r t h e o ffset of rent is unsupported by leg ally and fac tually -suffic ient evidenc e. I n I ssue Two, Southern contends th at the jury ’s awa rd of $73,820 to Goetting was not supported by leg ally and fac tually sufficie nt evidenc e. I n his third issue, Southern asser ts that he is entitled to rec over his attorne y ’s fe es. We ag ree . Standard of Review When a party raises bot h n o-evide nce and leg al-insuffic iency issues on appea l, we should consider a

nd rule upon the no-evidence issue first. Glover v . Texas Ge n. Indem . Co. , 619 S.W .2d 400, 401 (Tex. 1981); Bake r v. P ea ce , 1 7 2 S.W .3d 82, 86-87 (Tex. App. – El Paso 2005, pet. denied)

. I f we fi n d some evidenc e exis ts to support the verdic t, we then revie w the fac tualsufficie ncy

challeng e. Bake r , 172 S.W .3d at 87. A “no evidenc e” or l ega l s u fficie ncy issue is a question of law which challeng es the leg al sufficie ncy of the evidenc e to support a particula r fac t finding

. Serrano v. Union Planters Bank , N.A. , 162 S.W .3d 576, 579 (Tex. App. – El Paso 2 0 0 4 , p et. denied)

. There are two separ ate “no

4evidenc e” c laims. I n the first ty pe of no-evide nce claim, when a party having the burde n of proof suffe rs an unfavor able finding , the issue challeng ing the legal sufficie ncy of the evidenc e should

asser t that the fac t or issue was established as a “matter of law.” Id. I n the seco n d ty pe of noevidenc e claim, when a party that is without the burden of proof suffe rs an unfavor able finding , the challeng e on appea l is one of “n o ev idence to support the finding .” Serrano , 162 S.W .3d at 579. Be cause Southern did not bear the burden of proving a valid ag ree ment to offse t rent against Goetting ’s pay

ments for the repur chase of the Olive proper ty , his c halleng e is one of “no evidenc e to support the finding .” Serrano , 162 S.W .3d at 579. We will sustain a leg al sufficie ncy or “no evidenc e” challeng e on appea l if the rec ord shows: (1 ) t he complete absenc e of a vital fac t; (2) the court is barr ed by rules of law or evi d en ce fr o m g iving weig ht to the only evidenc e offe red to pr ove a vital f act; (3) the evidenc e offe red to pr ove a vital fac t is no more than a scintilla; or (4) the evidenc e establishes conclusively the opposite of the vital fac t. City of Keller v. W ilson , 168 S.W .3d 802, 810 (Tex. 2005); El Paso ISD v. P abon , 214 S.W .3d 37, 41 (Tex. App. – El Paso 2006 , n o pet.). We consider the evidenc e in the light most favor able to the verdic t and indulge ever y rea sonable infere nce that would support it. City of Keller , 168 S.W .3d at 822. Even if the evidenc e is undisputed, it is the province of the trier of fac t to draw from it whateve r inferen ces it wishes, so long as more than one infere nce is possible. Id. at 821. Howeve r, if the evidenc e allows only one infere nce, neither the trier of fac t nor the revie wing court may disreg ard it. Id. at 822. We are also mindful that the trier of fac t is the sole judge of the cre dibilit y of the witnesses and the we ight to be g iven their testimony

. Id. at 819. I t is within the province of the trie r of f act to resolve conflicting evidenc e. Id. at 820. I n ever y circ umstance in which a rea sonable trier of fac t
5could re solve conflicting evidenc e either way , the revie wing court must presume it did so in favor

of the preva iling party , and disreg ard the conflicting evidenc e in its sufficie ncy revie w. Id. at 821. I f the evidenc e at trial would enable rea sonable and fair- minded people to differ in their conclusions, then the trier of fac t must be allowed to do so. Id. at 822. The ultimate te st f or leg al sufficie ncy is “whe ther the evidenc e at trial would enable rea sonable and fair- minded people to rea ch the verdic t

u n d er revie w.” Id. at 827. We cannot substitut e our judgme nt for that of the trier of fac t if the evidenc e falls within the zone of rea sonable disag ree ment. Id. at 822. Thus, leg al sufficie ncy revie w in the proper light must cre dit favorab l e ev i dence if rea sonable jurors could, and must disreg ard contra ry evidenc e unless re asonable jurors could not. Id. at 827. Howeve r, the Supreme Court of Texas has identified some kinds of evidenc e that cannot be disreg arde d when revie wing a challeng e to the leg al sufficie ncy of the evidenc e. Id. at 811-12. For example, we ca

nnot disreg ard contextual e vidence in contrac t case s but, instead, revie w the entire contra ct. Id. at 811. Moreove r, “whe n the circ umstantial evidenc e of a vital fac t is meag er, . . . [we revie w] all the circ umstantial evidenc e [ ] an d competing infere nces” rathe r than the favor able evidenc e alone

. Id. at 814. Applicable Law A p ar t y wi shing to prove an enfor cea ble contra ct must establish: (1) an offe r; (2) an

acc eptanc e in strict compliance with the terms of the offe r; (3) a meeting of the minds; (4) execution and delivery o f t h e co n t ra ct with the intent that it be mutual and binding; and (5) consideration supporting the contra ct. Baylor Univ. v. Sonnichsen , 221 S.W .3d 632, 635 (Tex. 2 0 0 7 ); Da vid J. Sacks, P.C. v. Haden , 266 S.W .3d 447, 450 (Tex. 2008) (par ties m u s t h av e h ad a meeting of the minds and c o mm

u nicated their consent to the ag ree ment); see also Vermont Information Processing,
6Inc. v. Montana Bev erage Corp ., 227 S.W .3d 846, 852 (Tex. App.

– E l P as o 2 0 0 7, no pet.);

Copeland v. Alsobrook , 3 S.W .3d 598, 604 (Tex. App. – San Antonio 1999, pet. denied)

. The terms of an oral contract must be definite, cer tain, and clear as to all essential terms and, if they are not , the oral contra ct fails for indefiniteness. Farone v. Bag’n Baggage, Ltd., 165 S.W .3d 795, 802 (Tex. App. – Eastland 2005, no pet.); Meru v. Huerta , 136 S.W .3d 383, 390 (Tex. App. – Corpus Christi 2004, no pet.); Gannon v. Bake r , 830 S.W .2d 706, 709 (Tex. App. – Houston [1st Dist.] 1992, writ denied)

. A contra ct is not leg ally binding unless its terms are sufficie ntly definite so that a court can und er s t an d wh at t he promisor undertook. T.O. Stanley Boot Co., Inc. v. Bank of El Paso , 847 S.W .2d 218, 221 (Tex. 1992); Vermont Information Proce ssing, Inc. , 227 S.W .3d at 852. Whether an ag ree ment fails for indefiniteness is a question of l aw to be determined by the

co u rt. T.O. Stanley Boot Co., Inc. , 847 S.W .2d at 222; COC Servs., Ltd. v. CompUSA, In c. , 1 5 0 S.W .3d 654, 664 (Tex. A pp. – Dallas 2004, pet. denied) . When an ag ree ment is so indef inite a s to make it impossibl e for a court to deter mine the leg al obligations of the parties, the contra ct is not enfor cea ble. Vermont Information Processing, Inc. , 227 S.W .3d at 852; Mann v. Trend Expl. Co. , 934 S.W .2d 709, 713 (Tex. App. – El Paso 1996, writ denied). Whil e Texas courts favor validating transac tions rather than voiding them, a court may not

cre ate a contra ct where none exis ts and g ener ally may not add, alter, or eliminate essential terms. Kelly v. Rio Grande Computerland Group , 128 S.W .3d 759, 766 (Tex. App. – El Paso 2004, no pet.) (interna l citations omitted). Whether all essential terms have been included is a question of law. See E. P. Towne Ctr

. Partners v. Chopsticks, Inc. , 242 S.W .3d 117, 122 (Tex. App. – El Paso 2007, no pet.). A promise or term is an essential part of an ag ree ment if, when contra cting , the parties would

rea sonably reg ard it as a vitally important element of the barg ain. Domingo v. Mitchell , 257 S.W .3d

734, 40-41 (Te x . App. – Amar illo 2008, pet. denied).

Citi ng this Court, the Texas Supreme Court has said that “an ag ree ment to make a future contra ct is enfor cea

ble onl y if it is ‘spec ific as to all essential terms, and no te rms of the propose d ag ree ment may be left to future neg otiations.’” Fort W orth ISD v. City of Fort W orth , 22 S.W .3d 831, 846 (Tex. 2000), citing Foster v. W agner , 343 S.W .2d 914, 920-21 (Tex. Civ. App. – El Paso 1961, writ ref

’d n.r.e.)

. Agr ee m en t s to enter into neg otiations in the future are not enfor cea ble beca use there is no way to deter mine the contra ct that would result from the neg otiations. Estate of Eberling v. Fair , 546 S.W .2d 329, 334 (Tex. Civ. App. – Dallas 1976, writ ref ’d n.r.e.)

. Thus, wher e an essential term of an agr eeme nt is open for neg otiation in the future, no binding contract exis ts. T.O. Stanley Boot Co., Inc. , 847 S.W .2d at 221. I nstead, an ag ree ment which leave s materia l matters open for future adjustment and ag ree ment that never occur is not binding upon the parties and mere ly constitutes an ag ree ment to ag ree . Fort W orth ISD , 22 S.W .3d at 846. S ee E

. P. Towne Ctr

. Partners , 242 S.W .3d at 122 (whe ther all essential terms have been included is a question of law). Application We c onsider eac h contra ct separ ately to ide ntify its mate rial terms. T.O. Stanley Boot Co. , 847 S.W .2d at 221; Vermont Information Processing, Inc. , 227 S.W .3d at 852 (mater ial terms of a contra ct are deter

mined on an agr ee m en t-by -ag ree ment basis). We have held a written lease ag ree ment unenfor cea

ble beca use it failed to identify a term for the l ea s e an d l ikewise failed to provide dates for commencing and ending the lease

. Vermo n t Information Processing, Inc. , 227 S.W .3d at 853. I n Farone v. Bag’n Baggage, Lt d

. , 1 6 5 S.W .3d 795, 802 (Tex. App. – Eastland 2005, no pet.), the Ea stland Court of Appea ls determined that no contra ct ex isted betwee n Fa rone and Bow en who, befor e his death, had alleg edly informed Fa rone that Fa

rone would be compensated
8for une x erc ised stock options. Finding there was no evidenc e relating to the compensation which

Fa ro n e was to rec eive and that the alleg ed contra ct was missing essential terms including p ri ce , method of pay

ment, compilation of value, and the source of equity interest, the Court ruled that the contra ct lacke d definite, c erta in, and clea r esse ntial terms and fa iled for its indefiniteness. Id. Although the jury found that Crouse failed to comply with an agre em en t to pay rent and

awa rded to Goetting renta l damage s totaling $73,820, afte r a thoroug h revie w of the rec ord, we conclude that no evidenc e was prese nted to prove th e fo llowing essential terms of the purported ag ree ment to pay rent: (1) the specific are a or portion of the proper ty that the parties ag ree d would be subject to renta l; (2) the amount of rent Crouse ag ree d to pay ; (3) the ag ree d -u p o n m ethod for calculating the renta l amount; (4) the fre quency and manner for making renta l pay ments; (5) th e period or leng t h o f t i m e for which renta l pay ments would be made; and (6) the date on which Crouse, as owner of one-ha lf interest in the proper ty , would no longe r be obligated to pay the ag ree dupon renta l amount. We find that rea sonable parties would reg ard these terms to be vitally important elements of the renta l ba

rg ain in this case , and that these essential elements wer e missing from the alleg ed ag ree ment to pay rent. Domingo , 257 S.W .3d at 40-41; see E.P. Towne Ctr. Partners , 242 S.W .3d at 122. Be cause the essential terms of t h e al leg ed renta l ag ree ment are indefinite, uncer tain, and unclea r, beca use the evidenc e ref

lects that no less than one of the essential terms of the alleg ed renta l ag ree ment was left open for neg otiation in the future, an d b ecause there was no evidenc e of a meeting of the minds betwee n Crouse and Goetting reg arding the essential terms of the alleg ed renta l agr ee m ent, we conclude as a matter of law that no binding contra ct to pay rent exis ts under these fac ts. Farone, 165 S.W .3d at 802 ; T.O. Stanley Boot Co., Inc. , 847 S.W .2d at 221; Sonnichsen , 221
9S.W .3d at 635; David J. Sacks, P.C. , 266 S.W .3d at 450; Vermont Information Processing, Inc. , 227

S.W .3d at 8 5 2

. T h e t ri al evidenc e does not meet the test of enabling rea sonable and fair- minded people to rea ch the verdic t which we revie w here

. City of Keller , 168 S.W .3d at 827. Be cause there is a complete absenc e of a vital fac t, here the absenc e of an enfor cea ble and binding renta l ag ree ment, there could not have been an enfor cea ble ag ree ment to offse t rent. We sustain Southern’s first issue. Id. at 810; El Paso ISD , 214 S.W .3d at 4 1

. Having sustained I ssue One, we need not

rea ch Southern’s f

actua l sufficienc y

challeng e in I ssue Two. See B aker , 172 S.W .3d at 87. I n I ssue T h ree, Southern initially asked that we rende r judgme nt for attorney fee s in the

am o u n t proved upon preva iling on any portion of his appea l. Goetting challeng es Southern ’s posture, asser

ting that beca

use the underlying suit involved multipl e claims, Southern was require d, but failed, to seg reg ate his non-re cover able and rec overa ble fee s. Stewart Titl e Guar. Co. v. Sterling , 822 S.W .2d 1, 11 (Tex. 1991). Goetting , there fore , asser ts that Southern is not conclusively entitled to an awa rd of his attorney fee s. I n his reply , Southern now conce des that rema nd to the trial court for a new tria l on attorney

fee s is appropriate

. A party may rec over attorney fee s only when permitted by statute, by a contra ct betwee n the litigants, or under equity

. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National

. Dev

. & Researc h Corp. , 299 S.W .3d 106, 120 (Tex. 2009) (re cover y by statute or contra ct); Knebel v. Capital Nat’l Bank , 518 S.W .2d 795, 799 (Tex. 1974) (re cover y under equity

). R ecove ry of attorney fee s in brea ch-of -contra ct ca ses is authorized in Texas. T E X
. C I V
. P R A C
. & R E M
. C O D E A

N N
. § 38.001(8) (West 2008). Be cause Southern has conce ded that a new trial on attorney fee s is proper , we sustain I ssue Thre e and r emand f or a ne w trial on attorne y

fee s. T E X
. R. A P P
. P. 43.3(a) ; T E X
. C I V
. P R A C
. & R E M
. C O D E A

N N
. § 38.001(8) ( West 2008); Stewart Ti tle Guar. Co. , 822 S.W .2d at 11.
10CONCLUSION

Having sustained I ssue One, the trial court’s take- nothing ju d gme nt is reve rsed and judgme nt is rende red awa

rding Southern, as executor for the estate of Raul “Dude ” Crouse, damag es in the

sum of $73,820. Having sustained I ssue Three , we reve rse the trial court’s judgme nt as to attorney fee s and rema

nd for further proce eding s. Also pending b ef o re the Court is Goetting ’s Motion to Dismiss Frivolous Appeal. The motion is denied.

GUADA L UPE RI VERA, J ustice November

9, 2011 Be fore McClure, C.J ., Rivera, J., and DeHa rt, J udg e DeHa rt, J udg e, sitting by

assig nment

11