Musa ("Moses") N. Musallam v. Amar B. Ali
560 S.W.3d 636
Tex.2018Background
- Musa Musallam owned Fanci Candy, which had direct supply contracts with major tobacco companies; Amar Ali (via A to Z) sought to buy the business to obtain those direct-purchase benefits.
- Musallam and Ali signed a letter of intent and later a Stock Transfer and Asset Purchase and Sale Agreement providing for a closing by July 1, 2013, with purchase-price adjustments contingent on tobacco-vendor approvals and values for land and equipment to be set later.
- Lorillard initially refused to approve the ownership change; Altria later approved; Lorillard ultimately declined, creating the price contingency and leaving certain asset values unresolved.
- Ali appeared to close July 1, 2013; Musallam did not and sued for a declaratory judgment that the Agreement was unenforceable (an agreement to agree). Ali counterclaimed for breach and damages.
- At trial Musallam requested a jury question asking whether the parties agreed to the sale; the jury answered "Yes" and awarded Ali damages; Musallam later moved for JNOV/ to disregard the verdict arguing the Agreement was legally unenforceable.
- The court of appeals held Musallam waived challenge to the jury question by not objecting; the Texas Supreme Court reversed and remanded, holding Musallam preserved certain post-verdict challenges.
Issues
| Issue | Musallam's Argument | Ali's Argument | Held |
|---|---|---|---|
| Whether requesting a jury question forfeits the right to later challenge legal sufficiency of evidence supporting the jury’s answer | Requesting the question did not waive a post-verdict legal-sufficiency challenge; Rule 279 allows raising sufficiency after verdict | Because Musallam requested the question, he preserved no error on the issue | Court: Requesting the question did not forfeit a post-verdict legal-sufficiency challenge; such challenges may be raised after verdict |
| Whether failing to object to a jury question precludes arguing the jury’s answer was immaterial | Post-verdict motions (JNOV/disregard) preserved immateriality challenge; immateriality is not a charge complaint | Failure to object waived charge error; court of appeals said Musallam failed to preserve error | Court: A claim that a jury answer is immaterial is not a jury-charge complaint and may be raised post-verdict; Musallam preserved the issue |
| Whether the Stock Transfer Agreement was an unenforceable agreement to agree (i.e., a question of law) | The Agreement left essential terms (prices for certain assets, contingency on vendor approvals) open, so as a matter of law it was not binding | Agreement terms and parties’ conduct created fact issues for the jury to decide whether there was agreement | Court: Did not decide on the merits; remanded to the court of appeals to address this preserved substantive issue first |
| Appropriate procedural disposition when an appellate court fails to address a preserved substantive issue | Court should consider the issue if briefed or remand to court of appeals | N/A | Court: Remanded to the court of appeals for consideration of the substantive enforceability issue before this Court addresses it further |
Key Cases Cited
- Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154 (Tex. 1994) (jury findings beyond jury’s province—questions of law—may be disregarded)
- Steves Sash & Door Co. v. Ceco Corp., 751 S.W.2d 473 (Tex. 1988) (post-verdict JNOV or motion to disregard preserves no-evidence challenge)
- USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479 (Tex. 2018) (trial court may disregard immaterial jury findings)
- BP Am. Prod. Co. v. Red Deer Res., LLC, 526 S.W.3d 389 (Tex. 2017) (immateriality challenge is not a jury-charge complaint; may be preserved post-verdict)
- Nat’l Plan Adm’rs, Inc. v. Nat’l Health Ins. Co., 235 S.W.3d 695 (Tex. 2007) (post-verdict motions can preserve immateriality/other challenges)
- Simon v. Henrichson, 394 S.W.2d 249 (Tex. Civ. App.—Corpus Christi 1965) (no-evidence objection may be raised after verdict under Rule 279)
- First Bank v. Brumitt, 519 S.W.3d 95 (Tex. 2017) (when an issue was briefed but not decided by court of appeals, remand to that court is appropriate)