Reversed and Rendered and Memorandum Opinion filed September 12, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00016-CV

QUEENSTON BLVD 16, LLC, Appellant

V.

WENDY WANG AND ZEMIN HU, Appellees

On Appeal from the County Civil Court at Law No. 3

Harris County, Texas

Trial Court Cause No. 1123005

MEMORANDUM OPINION

Following a jury trial, the trial court rendered a final judgment in favor 

appellees Wendy Wang and Zemin Hu for damages and attorney’s fees based on 

the jury’s finding that appellant Queenston Blvd 16, LLC (the builder) breached its 

contract with Wang and Hu by failing to return earnest money and costs for 

upgrades after Hurricane Harvey flooded the commercial office properties 

appellees contracted to purchase. Raising six points of error, the builder argues: 

(1) a take-nothing judgment on Wang and Hu’s claims should have been rendered 
2

by the trial court because there was insufficient or no evidence to support the jury’s 

verdict;

1 (2) the trial court erred in granting a motion for judgment notwithstanding 

the verdict (JNOV) on the issue of attorney’s fees and awarding attorney’s fees to 

appellees in excess of the jury’s award; and (3) the trial court erred in awarding

Wang and Hu monies on deposit with the title company.

Concluding there was no evidence to support the jury’s finding that the 

builder failed to comply with its agreements with Wang and Hu on which the 

judgment was predicated, we reverse the judgment of the trial court and render a 

take-nothing judgment on Wang and Hu’s claims against the builder.

1 The builder’s first four points of error are duplicative:

First Point Of Error

The trial court erred in denying appellant’s motion to for JNOV, to modify judgment and 

alternatively for a new trial [] because the contract (Pl. Ex. 3) did not permit Zemin Hu to 

unilaterally terminate the contract after the feasibliity [sic] period (Pl. Ex. 3 p.4 ¶ 7b), or receive 

upgrade refund [(]Pl. Ex. 3 p. 8 ¶ 12) and there was no evidence or insufficient evidence that 

defendant failed to comply with the contract with Zemin Hu (Pl. Ex. 3).

. . . .

Second Point Of Error

The trial court erred in denying appellant’s motion to for JNOV, to modify judgment and 

alternatively for a new trial [] because the contract (Pl. Ex. 5) does not permit Wendy Wang to 

uniterlaterally [sic] terminate the contract after the feasibliity [sic] period (Pl. Ex. 5 p.4 ¶ 7b), or 

receive upgrade refund [(]Pl. Ex. 5 p. 8 ¶ 12) and there was no evidence or insufficient evidence 

that defendant failed to comply with the contract with Wendy Wang (Pl. Ex. 5).

. . . .

Third Point Of Error

There was no evidence or alternatively insufficient evidence of a modification of 

plaintiff’s [Exhibit] 3 which would entitle Zemin Hu [to] a refund of his earnest money or 

receive an upgrade refund[.]

Fourth Point Of Error

There was no evidence or alternatively insufficient evidence of a modification of 

plaintiff’s [Exhibit] 5 which would entitle Wendy Wang [to] a refund of her earnest money or 

receive an upgrade refund[.]
3

I. BACKGROUND

Wang and Hu (“the buyers”) signed separate real estate contracts for the 

purchase of commercial office condominium units (“commercial contracts”) in 

2017 within the same commercial office development in Harris County. The 

buyers were both represented by Wang’s mother, Jane Zhang, as their agent. Both 

commercial contracts are on the Texas Association of Realtors’ commercial 

contract form for unimproved property.

Pursuant to the commercial contracts, each of the buyers paid $5,000 in 

earnest money deposited with the title company, as well as an additional $7,990.00

paid directly to the seller. Both commercial contracts provided for a 45-day 

feasibility period, during which period the buyers were allowed the unrestricted 

right to cancel with a full refund, less $500. The commercial contracts do not 

provide any further right to terminate.

The buyers both paid additional monies for upgrades to be installed in their 

respective office suites. Wang paid $8,910 for upgrades and Hu paid $2,100. The 

commercial contracts state that upgrades are “due up-front and [] considered nonrefundable.” The buyers each later signed a document, that itemized the costs for 

the upgrades to their respective suites. After Wang paid for the cost of her

upgrades, changes were made reducing the cost of the upgrades. The builder’s

broker agreed to remove those items and credit Wang’s overpayment against her 

purchase cost through an amendment to the commercial contract. Wang and the 

builder signed an amendment to the commercial contract that provides the 

following: “Seller to contribute the amount of $3,180 to buyer at closing.”

After the office units were flooded following Hurricane Harvey, the buyers

sought to cancel their commercial contracts. They requested the return of their 

earnest money and upgrade costs. No agreement was reached and ultimately the 
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buyers filed suit to recover the money they paid.

After a jury trial, the jury found the builder failed to comply with its 

agreement with Hu and awarded Hu damages of (1) $2,500 for money deposited

with the title company, (2) $7,499 for money deposited with the builder and 

(3) $2,100 for the upgrade costs. Similarly, the jury found that the builder failed to 

comply with its agreement with Wang and awarded Wang damages of (1) $2,500 

for money deposited with the title company, (2) $7,490 for money deposited with 

the builder and (3) $8,910 for the upgrade costs. The buyers were also awarded 

attorney’s fees.

After trial, the buyers filed a motion for entry of judgment. The builder 

responded and filed a motion for JNOV asserting that a take-nothing judgment 

should be entered on the buyers’ claims. After the trial court rendered a final 

judgment on the jury verdict, the builder reasserted its legal arguments filing a 

postjudgment motion for new trial, motion to modify, and motion for JNOV, which 

were overruled by operation of law.

II. ANALYSIS

In its first and second points of error, the builder argues that the finding that 

the builder failed to comply with its contracts was not supported by legallysufficient evidence.2 As drafted, the builder asserts the agreement did not allow the 

buyers to terminate the agreement after the 45-day feasibility period or receive a 

refund of their upgrade costs. Further, the builder maintains buyers did not 

establish that any amendment to the agreement allowed them to terminate outside 

the feasibility period.

The builder additionally argues the jury charge did not include any questions 

2 The first point of error addresses the commercial contract with Hu and the second point 

of error addresses the commercial contract with Wang.
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about contract formation. Restated, the jury was not asked if the contract included 

a provision that allowed the buyers to cancel the contract outside of the feasibility 

period or if the commercial contracts were modified. Instead, the jury was asked: 

“Did [the builder] fail to comply with the agreement, if any, with Zemin Hu?” The 

question relating to the contract between the builder and Wang is identical. 

Therefore, we first review the commercial contracts and consider their provisions,

and then turn to the question of whether the commercial contracts were modified or 

amended.

A. Standard of review

When a party challenges the legal sufficiency of the evidence supporting an 

adverse finding on which the party did not have the burden of proof at trial, the 

party must demonstrate no evidence exists to support the adverse finding. See City

of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Croucher v. Croucher, 660 

S.W.2d 55, 58 (Tex. 1983). Under a legal-sufficiency review, we consider all of 

the evidence in the light most favorable to the prevailing party, make every 

reasonable inference in that party’s favor, and disregard contrary evidence unless a 

reasonable fact-finder could not. City of Keller, 168 S.W.3d at 807, 822, 827. We 

cannot substitute our judgment for that of the fact-finder if the evidence falls 

within this zone of reasonable disagreement. Id. at 822.

B. The commercial contracts

Both commercial contracts have the identical operative language. Each 

commercial contract required the deposit of $12,990 in earnest money; however, of 

that total, $5,000 was deposited with the title company and the remainder was paid 

directly to the builder.

Section 7 of the commercial contracts addresses the property condition and 
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the feasibility period:

A. Present Condition: Buyer accepts the Property in its present 

condition except that Seller, at Seller’s expense, will complete the 

following before closing –

B. Feasibility Period: Buyer may terminate this contract for any 

reason within 45 days after the effective date (feasibility period) by 

providing Seller written notice of termination. (Check only one box.)

[X] (1) If Buyer terminates under this Paragraph 7B, the earnest 

money will be refunded to Buyer less $ 500.00 that Seller will retain 

as independent consideration for Buyer’s unrestricted right to 

terminate. Buyer has tendered the Independent consideration to Seller 

upon payment of the amount specified in Paragraph 5A to the title 

company. The independent consideration is to be credited to the sales 

price only upon closing of the sale. If no dollar amount is stated in this

Paragraph 7B(1) or if Buyer falls to deposit the earnest money, Buyer 

will not have the right to terminate under this Paragraph 7B.

The commercial contracts contain no other unrestricted right to terminate or 

receive a substantial return of the earnest money on termination or default. The 

commercial contracts contain default provisions as follows:

If Buyer fails to comply with this contract, Buyer is in default and 

Seller, as Seller’s sole remedy(ies), may terminate this contract and 

receive the earnest money, as liquidated damages for Buyer’s failure 

except for any damages resulting from Buyer’s inspections, studies or 

assessments in accordance with Paragraph 7C(3) which Seller may 

pursue[.]

. . . .

[I]f Seller fails to comply with this contract, Seller is in default and 

Buyer may (1) terminate this contract and receive the earnest money, 

less any independent consideration under Paragraph 7B(1), as 

liquidated damages and as Buyer’s sole remedy . . . .

The commercial contracts also state “This contract contains the entire 

agreement of the parties and may not be changed except in writing.”
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C. Modification

The buyers do not dispute the validity or enforceability of the commercial 

contracts. They also do not dispute the commercial contracts contain no provision 

for the return of earnest money outside the feasibility period or the upgrade costs. 

Instead, the buyers argued at trial (and here) that the builder, through its broker, 

agreed to return those costs and, therefore, either created a new contract or 

modified the commercial contracts.

The buyers’ agent, Zhang, emailed the broker for the builder in October 

2017, stating that the buyers “decided to back out from our purchasing contract and 

are seeking full refund of earnest money and prepaid upgrade money.” The broker 

who represented the builder in the transaction responded to the buyers request to 

terminate as follows:

Jane,

Yesi will email you the termination documents tomorrow morning. 

They will include the deduction of the 500 dollars for each contract 

and also the developer did not allow any of the upgrade money to be 

returned. I was hoping you would reconsider moving forward with the 

purchase of the office after you visited with Mike Evenson. I’m sorry 

that the upgrades money is not refundable. Yesi will email you all the 

documents for review tomorrow.

Responding to the broker’s email, Zhang reiterated via email that the buyers were 

backing out and sought a “full refund of upgrade money.”

D. Applicable law

To recover on their breach-of-contract claims, the buyers had to prove:

(1) the existence of a valid contract; (2) the buyers performed or tendered 

performance as the contract required; (3) the builder breached the contract by 

failing to perform or tender performance as the contract required; and (4) the 
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buyers sustained damages as a result of the breach. USAA Tex. Lloyds Co. v. 

Menchaca, 545 S.W.3d 479, 502 n.21 (Tex. 2018).

The following elements are required for the formation of a binding contract: 

(1) an offer; (2) 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) execution and 

delivery of the contract with the intent that it be mutual and binding. Wal-Mart 

Stores, Inc. v. Lopez, 93 S.W.3d 548, 555–56 (Tex. App.—Houston [14th Dist.] 

2002, no pet.). A “meeting of the minds” is “merely a mutuality subpart of the 

offer and acceptance elements.” WTG Gas Processing, L.P. v. ConocoPhillips Co., 

309 S.W.3d 635, 643 (Tex. App.—Houston [14th Dist.] 2010, pet. denied)

(internal quotation omitted). “Questions of contract formation must be resolved on 

objective standards, based upon the meaning reasonably conveyed by the parties’

actions and words rather than their uncommunicated subjective intentions.” Parker

Drilling Co. v. Romfor Supply Co., 316 S.W.3d 68, 73 (Tex. App.—Houston [14th 

Dist.] 2010, pet. denied).

“To be enforceable, a contract must address all of its essential and material 

terms with ‘a reasonable degree of certainty and definiteness.’” Fischer v. CTMI, 

L.L.C., 479 S.W.3d 231, 237 (Tex. 2016) (quoting Pace Corp. v. Jackson, 284 

S.W.2d 340, 345 (1955)). “The material terms of the contract must be agreed upon 

before a court can enforce the contract.” T.O. Stanley Boot Co., Inc. v. Bank of El 

Paso, 847 S.W.2d 218, 221 (Tex. 1992). “[A] contract must at least be sufficiently 

definite to confirm that both parties actually intended to be contractually bound.” 

Fischer, 479 S.W.3d 231, 237 (citing Fort Worth Indep. Sch. Dist. v. City of Fort 

Worth, 22 S.W.3d 831, 846 (Tex. 2000)). Where an essential term is open for 

future negotiation, there is no binding contract. T.O. Stanley Boot Co., 847 S.W.2d 

at 221. Whether an agreement is legally enforceable is a question of law. 
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Yazdani-Beioky v. Sharifan, 550 S.W.3d 808, 823 (Tex. App.—Houston [14th 

Dist.] 2018, pet. denied).

A contract modification must satisfy all the essential elements of a contract. 

Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227, 228 (Tex. 1986). There must be 

both a meeting of the minds and new consideration to support the modification. Id.

There is no dispute that the commercial contracts are enforceable contracts. 

However, the buyers asserted either a new agreement or a modification to the 

commercial contracts.

3

E. There was no new agreement or modification

Here, there was a series of emails between Zhang and the builder’s broker. 

Zhang’s email proposed a new agreement and terms that the entire contract be 

cancelled and all earnest and upgrade money be returned to the buyers. The 

broker’s email did not accept those terms. Instead, the broker proposed new terms 

on behalf of the builder: that the upgrade monies would not be refunded, but 

otherwise implied that the builder would agree to return the earnest monies. Zhang 

rejected this proposal and again reiterated her demand that the buyers get a full 

refund of all monies paid (less the $500 fee referenced in the commercial 

contracts).

Standing alone, none of the referenced emails between the broker and Zhang 

present evidence of any mutual agreement to terms sufficiently definite to be

enforceable. Because multiple documents can together constitute an agreement, we 

also consider the email correspondence between Zhang and the broker as a whole. 

Fort Worth Indep. Sch. Dist., 22 S.W.3d at 840 (multiple writings may comprise 

contract “even if the parties executed the instruments at different times and the 

3 We do not address statute of frauds because the builder did not plead the affirmative 

defense in the trial court. See Tex. R. Civ. P. 94.
10

instruments do not expressly refer to each other.”). However, the email 

correspondence as a whole reflects no agreement or meeting of the minds to which 

the parties agreed. At best, the email correspondence reflects proposed terms from 

both parties that were never mutually agreed on. See Copano Energy, LLC v. 

Bujnoch, 593 S.W.3d 721, 730 (Tex. 2020) (“the December 7 e-mails themselves 

reflect no such intent to be bound by their terms . . . nor does any other writing 

proffered by the Landowners”).

Emails from both Zhang and the broker further refer to the creation and 

distribution of “termination paperwork” or “termination documents” and use the 

future tense4 reflecting that neither agent intended for their communications to 

constitute the agreement. E.g., Hartford Fire Ins. Co. v. C. Springs 300, Ltd., 287 

S.W.3d 771, 778 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“Writings 

that contain ‘futuristic’ language are insufficient to confirm that a contract or 

promise is already in existence.”); Columbia/HCA of Houston, Inc. v. Tea Cake 

French Bakery & Tea Room, 8 S.W.3d 18, 21 (Tex. App.—Houston [14th Dist.] 

1999, pet. denied) (letter constituting “initial starting point for the negotiations” 

could not “constitute a binding written agreement”).

In opposition, the buyers also rely on proposed amendments prepared by the 

builder (or its broker) that would return the earnest money paid by the buyers. 

These unsigned, proposed amendments do not reflect agreement as to the “material 

terms of the contract.” T.O. Stanley Boot Co., 847 S.W.2d at 221. Rather, they 

present potential modification terms.

In their appellate briefing, the buyers also refer to a document addressing an 

4 As an example, the broker’s email to Zhang states in relevant part: “Yesi will email you 

the termination documents tomorrow morning. They will include the deduction of the 500 dollars 

for each contract and also the developer did not allow any of the upgrade money to be 

returned. . . . Yesi will email you all the documents for review tomorrow.” (emphasis added).
11

amendment to the commercial contract with Wang that proposed to provide a 

credit of $3,180 against the sale price to Wang for upgrades that she canceled or 

removed. The buyers suggest that the fact the builder allowed Wang to remove 

some of her upgrades and applied the credit towards the closing purchase price was 

evidence that the upgrade costs could be canceled and refunded. The buyers do not 

address how the language in the commercial contracts stating upgrade costs were 

“considered nonrefundable,” to which the buyers agreed, was modified or 

eliminated. Instead, the buyers argue the term “nonrefundable” is ambiguous 

because it does not state when the upgrade costs became nonrefundable.5 We 

disagree. The term “nonrefundable” is not ambiguous. Black’s Law Dictionary

defines the term as “[i]ncapable of being paid back; not returnable for any reason.” 

Nonrefundable, Black’s Law Dictionary (12th ed. 2024). Nothing in the 

commercial contracts reflects that the term “nonrefundable” was intended to be 

modified or limited by any date or time period. Therefore, without ambiguity, there 

is no need to turn to parol evidence and consider the conduct or subjective intent of 

the parties. See David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex. 2008)

(“An unambiguous contract will be enforced as written, and parol evidence will not 

be received for the purpose of creating an ambiguity or to give the contract a 

meaning different from that which its language imports.”). That the buyers 

received no value for the upgrade costs or whether the upgrades were “custom” or 

not is an equitable argument, but is not evidence of contract modification.

We conclude the email correspondence between Zhang and the broker did 

not constitute an enforceable agreement or contract modification obligating the

builder to return the earnest money and upgrade costs paid by the buyers. Although 

5 Buyers maintain that the conduct of the parties reflects that the term “nonrefundable” in 

the commercial contracts was interpreted by the parties to mean that “the funds for upgrades 

became nonrefundable upon installation of the upgrades by the builder.”
12

there were undisputed amendments to the commercial contracts that do not speak 

to the issues in this appeal, the buyers produced no evidence of an enforceable

agreement that provided the buyers with an unrestricted right to terminate the 

contract, or obligated the builder to return the earnest money paid by the buyers, or

refund the upgrade costs “considered nonrefundable.”

We sustain points of error one, two, three and four. Because of our 

disposition of these issues, we need not address the builder’s remaining issues.

Tex. R. App. P. 47.1.

III. CONCLUSION

Having sustained points of error one, two, three and four, we reverse the 

judgment of the trial court and render judgment that the buyers take nothing by 

their claims against the builder.

/s/ Charles A. Spain

Justice

Panel consists of Chief Justice Christopher and Justices Spain and Poissant.