John Khoury v. Prentis B. Tomlinson Jr.

Opinion issued December 22, 2016

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-16-00006-CV
———————————
JOHN KHOURY, Appellant
V.
PRENTIS B. TOMLINSON, JR., Appellee

On Appeal from the 281st District Court
Harris County, Texas
Trial Court Case No. 2012-61491

OPINION

John Khoury sued Prentis B. Tomlinson, Jr., alleging securities violations

under the Texas Blue Sky Laws, common-law fraud, and breach of contract. The

jury found in favor of Khoury on all three claims. In response to Tomlinson’s motion

for judgment notwithstanding the verdict, the trial court disregarded the jury’s
findings of liability on Khoury’s securities violations and breach of contract claims.

In three issues on appeal, Khoury argues that the trial court erred by disregarding the

jury’s findings on his securities and breach of contract claims and that, as a result,

he is entitled to judgment recovering his attorneys’ fees. In seven issues on cross-

appeal, Tomlinson argues the trial court erred by denying his motion for judgment

notwithstanding the verdict on Khoury’s fraud claim.

We reverse and render.

Background

Tomlinson is the president and CEO of PetroGulf, Ltd., a company “formed

in August 2008 to be a physical trader of fuel oil and crude oil from Iraq into

selective markets in the region.” On December 9, 2008, Tomlinson met with Khoury

and presented him with an 11-page business plan, seeking investment in PetroGulf.

As a result of the meeting and the investment document, Khoury invested $400,000

in PetroGulf.

Dissatisfied with his investment and the lack of disclosures of PetroGulf’s

financial information, Khoury met with Tomlinson on January 9, 2012. During that

meeting, Tomlinson agreed to personally repay Khoury the amount loaned to

PetroGulf. They agreed that Tomlinson would repay the debt over a four or five

year period. Khoury testified at trial that they had agreed that Tomlinson would

elect whether to pay over four or five years. A week later, Khoury sent an email to

2
Tomlinson summarizing what agreements they had made. Tomlinson replied,

writing, “We are in agreement.”

Tomlinson did not make any of the payments he had agreed to make. Khoury

brought suit alleging breach of contract, securities violations under the Texas Blue

Sky Laws,1 and common-law fraud. In his live answer, Tomlinson asserted that any

recovery for breach of contract was barred by the Statute of Frauds. At trial,

Tomlinson acknowledged sending the email but claimed that his statement of his

being in agreement with Khoury referred to an agreement entirely different from the

terms identified in the email to which he responded.

The jury found in favor of Khoury on all of his claims, awarding the same

amount ($400,000) for each claim. The jury also awarded attorneys’ fees. For the

breach of contract claim, the jury found that Tomlinson had obligated himself to

repay the investment amount to Khoury. It also found that Tomlinson breached that

agreement.

After trial, Tomlinson filed a motion for judgment notwithstanding the

verdict, seeking to overturn the jury’s findings in favor of Khoury on each of

Khoury’s claims. For Khoury’s breach of contract claim, Tomlinson argued that the

jury’s findings of liability should be overturned because the contract was barred by

the Statute of Frauds and because the contract was too indefinite to be enforceable.

1
See TEX. REV. CIV. STAT. ANN. art. 581-33 (Vernon 2010).

3
 For his Statute of Frauds argument, Tomlinson acknowledged his email

constituted a writing but argued the email was not signed. Tomlinson attached a

copy of his email2 to his motion.

The trial court granted the motion for the state securities violations claim and

breach of contract claim. It denied the motion for the fraud claim.

2
The redactions were added by this Court. The redacted information identified the
email addresses for Khoury and Tomlinson.

4
 Standard of Review

When a motion for judgment notwithstanding the verdict is premised on the

legal sufficiency of the evidence to support a claim, rulings on a motion for JNOV

and directed verdict are reviewed under the same legal-sufficiency test as are

appellate no-evidence challenges. JSC Neftegas-Impex v. Citibank, N.A., 365

S.W.3d 387, 395 (Tex. App.—Houston [1st Dist.] 2011, pet. denied); see also In re

Humphreys, 880 S.W.2d 402, 404 (Tex. 1994) (“[Q]uestions of law are always

subject to de novo review.”). Such a no-evidence challenge “‘will be sustained when

(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by

rules of law or of evidence from giving weight to the only evidence offered to prove

a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere

scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.’”

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell

Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).

In our legal-sufficiency review, “we must view the evidence in a light that

tends to support the finding of disputed fact and disregard all evidence and inferences

to the contrary.” Wal–Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003).

With that evidence, we review “whether the evidence at trial would enable

reasonable and fair-minded people to reach the verdict under review. . . . [L]egal-

sufficiency review in the proper light must credit favorable evidence if reasonable

5
jurors could, and disregard contrary evidence unless reasonable jurors could not.”

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

This case also involves questions of statutory interpretation and contract

construction. We review those questions de novo. See Molinet v. Kimbrell, 356

S.W.3d 407, 411 (Tex. 2011) (statutory interpretation); J.M. Davidson, Inc. v.

Webster, 128 S.W.3d 223, 229 (Tex. 2003) (contract construction).

Breach of Contract

In his second issue, Khoury argues the trial court erred by granting the

judgment notwithstanding the verdict on his breach of contract claim. Tomlinson

presented two grounds for why the jury’s finding on liability should have been

overturned. First, Tomlinson argued that the contract was barred by the Statute of

Frauds. Second, Tomlinson argued that the contract was too indefinite to be

enforceable.

A. Statute of Frauds

“[A] promise by one person to answer for the debt . . . of another person” “is

not enforceable unless the promise or agreement, or a memorandum of it, is (1) in

writing; and (2) signed by the person to be charged with the promise or agreement

. . . .” TEX. BUS. & COM. CODE ANN. § 26.01(a)(1)–(2), (b)(2) (Vernon 2015).

The parties agreed at trial that they met on January 9, 2012, and that they

entered into an agreement. The evidence shows that, a week later, Khoury sent

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Tomlinson an email listing the terms of their agreement and requesting Tomlinson’s

confirmation of those terms. Tomlinson acknowledged at trial that he received the

email and sent the responding email, writing, “We are in agreement.”

The email shows that Tomlinson’s name does not appear in the body of the

email that he wrote. His name and email address do appear, however, in the “from”

field for the email. The question before us is whether the name or email address in

the “from” field constitutes a signature for purposes of the Statute of Frauds. See id.

§ 26.01(a)(2).

It is undisputed by the parties that their email correspondence is governed by

the Texas Uniform Electronic Transactions Act (“UETA”). See TEX. BUS. & COM.

CODE ANN. §§ 322.001–.021 (Vernon 2015). Subject to exceptions not applicable

to this case, UETA “applies to electronic records and signatures relating to a

transaction.” Id. § 322.003(a). “A record or signature may not be denied legal effect

or enforceability solely because it is in electronic form.” Id. § 322.007(a). “If a law

requires a signature, an electronic signature satisfies the law.” Id. § 322.007(d). We

must construe and apply UETA in a manner “to be consistent with reasonable

practices concerning electronic transactions and with the continued expansion of

those practices.”3 Id. § 322.006(2).

3
It is worth noting the history of the enactment of UETA. Before it was enacted in
Texas, the federal government enacted E-SIGN. See TEX. BUS. & COM. CODE ANN.
ch. 322 state bar committee comments 1 (Vernon 2015) (noting E-SIGN was

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 Under UETA, an electronic record is “a record, created, generated, sent,

communicated, received, or stored by electronic means.” Id. § 322.002(7). An

electronic signature is “an electronic sound, symbol, or process attached to or

logically associated with a record and executed or adopted by a person with the intent

to sign the record.” Id. § 322.002(8).

An email satisfies all of the disjunctive definitions of an electronic record. See

id. § 322.002(7). A name or email address in a “from” field is a symbol logically

associated with the email. See id. § 322.002(8). We are left to determine, then,

whether a name or email address in a “from” field can be construed to be “executed

or adopted by a person with the intent to sign the record.” See id.

While UETA defines “electronic signature,” it does not define “sign.” This

was by design. See TEX. BUS. & COM. CODE ANN. ch. 322 official comment (Vernon

2015) (recognizing UETA “defers to existing substantive law” for “the meaning and

enacted in 2000). E-SIGN preempts state laws on electronic transactions unless the
states adopted UETA. 15 U.S.C.A. §§ 7001(a), 7002(a) (West 2009). Any
exceptions the states enact to restrict the scope of the uniform code results in E-
SIGN pre-empting those restrictions. Id. § 7002(a)(1). The Texas Legislature
enacted UETA with the explicit intent of superseding E-SIGN. See TEX. BUS. &
COM. CODE ANN. § 322.019 (Vernon 2015) (“This chapter modifies, limits, or
supersedes the provisions of the Electronic Signatures in Global and National
Commerce Act (15 U.S.C. Section 7001 et seq.) as authorized by Section 102 of
that Act (15 U.S.C. Section 7002).”); see also TEX. BUS. & COM. CODE ANN.
§ 322.003 state bar committee comment 1 (Vernon 2015) (recognizing chapter 322
“does not contain any non-uniform exceptions to the scope of [the uniform code]
and does not therefore invoke the E-SIGN consistency test for preemption.”).
Nothing in this opinion should be read to restrict the application of the uniform code.

8
effect of ‘sign’”). Accordingly, we look to existing law to determine the meaning

and effect of “sign.” See id.

“The signature of the person against whom enforcement is sought [under the

Statute of Frauds] authenticates the document as reliable evidence of that person’s

agreement to the transaction.” Lone Star Air Sys., Ltd. v. Powers, 401 S.W.3d 855,

859 (Tex. App.—Houston [14th Dist.] 2013, no pet.). “[F]or the purpose of the

Statute of Frauds, the signature of the ‘person to be charged’ is the act which

authenticates the document as reliable evidence of that person’s agreement to the

transaction.” Capital Bank v. Am. Eyewear, Inc., 597 S.W.2d 17, 19 (Tex. Civ.

App.—Dallas 1980, no writ). “What is essential [for a signature under the Statute

of Frauds] is that the signature of the party to be charged shall authenticate the whole

of the writing.” Gruss v. Cummins, 329 S.W.2d 496, 500 (Tex. Civ. App.—El Paso

1959, writ ref’d n.r.e.); see also Betts v. Betts, No. 14-11-00267-CV, 2012 WL

2803750, at *2 (Tex. App.—Houston [14th Dist.] July 10, 2012, pet. denied) (mem.

op.) (recognizing Texas law treats documents as signed when they contain any mark

sufficient to show intent to be bound by document).

The “from” field in the email authenticated the writing in the email to be

Tomlinson’s. UETA expressly allows for automated transactions to satisfy the

requirements of contract formation. See BUS. & COM. § 322.014. The very nature

of automated transactions requires the mechanisms for the transaction to be

9
established in advance of the actual transactions. The fact that the name or email

address to appear in a “from” field was set up in advance of sending the email in

question, then, does not preclude any legal effect of the name or email address. See

also id. § 322.006(2) (requiring UETA to be construed and applied consistently with

continued expansion of practices for electronic communications); UNIF.

ELECTRONIC TRANSACTIONS ACT § 2 cmt. 7 (UNIF. LAW COMM’N 1999)

(recognizing that entering in identifying information into website and later clicking

“I agree” button satisfies signature requirement).

Related authority backs up the conclusion that the name or email address in a

“from” field functions as a signature in an email. The New Oxford American

Dictionary defines sign to mean to “write one’s name . . . to identify oneself as the

writer or sender.” Sign, THE NEW OXFORD AM. DICTIONARY (2d. ed. 2005). Black’s

Law Dictionary defines sign as “[t]o identify (a record) by means of a signature,

mark, or other symbol with the intent to authenticate it as an act or agreement of the

person identifying it.” Sign, BLACK’S LAW DICTIONARY (10th ed. 2014). The

“from” field functions to identify the sender of the email and authenticate the email

as his act. Legal scholarship likewise recognizes this point. See Douglas B. Lang,

Electronic Settlement Agreements, Are They Enforceable in Texas?, 64 TEX. B.J.

638, 644 (2001) (arguing “from” field in an email satisfies signature requirement for

electronic messages).

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 Finally, other states that have adopted the uniform code have reached the same

conclusion. Int’l Casings Group, Inc. v. Premium Standard Farms, Inc., 358 F.

Supp. 2d 863, 873 (W.D. Missouri 2005) (holding email header with name of sender

constitutes signature under Missouri UETA); Kluver v. PPL Mont., LLC, 293 P.3d

817, 822–23 (Mont. 2012) (holding “from” field in email and statement of approval

in body of email established email was signed); Dalos v. Novaheadinc, No. 1 CA-

CV 07-0459, 2008 WL 4182996, at *3 (Az. Ct. Ap. 2008) (holding “from” field in

email acted as signature); see also BUS. & COM. ch. 322 table of jurisdictions

(identifying Missouri, Montana, and Arizona as states that have adopted the uniform

code).

We recognize that the Fort Worth Court of Appeals has reached a holding in

conflict with ours. In Cunningham v. Zurich American Insurance Co., the court

considered whether the signature line within an email constituted a signature and

concluded it did not. 352 S.W.3d 519, 529–30 (Tex. App.—Fort Worth 2011, pet.

denied). The court held,

There is nothing to show that the signature block was typed by
Grabouski and not generated automatically by her email client. If
Grabouski did personally type the signature block at the bottom of the
email, nothing in the email suggests that she did so with the intention
that the block be her signature, and Cunningham does not direct us to
any other place in the record raising a fact issue about her intention. . . .
We decline to hold that the mere sending by Grabouski of an email
containing a signature block satisfies the signature requirement when
no evidence suggests that the information was typed purposefully rather

11
 than generated automatically, [or] that Grabouski intended the typing
of her name to be her signature . . . .

Id. at 530.

The court offered no explanation for why physically typing in a signature line

at the time of drafting the email should be required for a “signature block” to

constitute a signature. See Cox Eng’g, Inc. v. Funston Mach. & Supply Co., 749

S.W.2d 508, 511 (Tex. App.—Fort Worth 1988, no writ) (holding letterhead on

invoice satisfied signature requirement under Statute of Frauds).

Another court has criticized this holding. See Williamson v. Bank of New York

Mellon, 947 F. Supp. 2d 704, 710–11 (N.D. Tex. 2013). The court observed that

signature blocks with a person’s name are created by the account owner, not the

email client. Id. at 710. “There is no fundamental difference between, on the one

hand, manually typing a signature block into a series of emails and, on the other,

typing the block once and instructing a computer program to append it to future

messages.” Id. at 711.

The court further noted that UETA was designed to remove barriers to

electronic transactions by setting an expansive view of what constitutes electronic

records and signatures. Id. The court recognized that UETA requires the act to be

construed and applied consistently with reasonable practices for electronic

communications. Id. (citing BUS. & COM. § 322.006). “Email communication is a

reasonable and legitimate means of reaching a settlement in this day and age.” Id.

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 We agree. A signature block in an email performs the same authenticating

function as a “from” field. Accordingly, it satisfies the requirement of a signature

under UETA. See id.

We hold that the email name or address in the “from” field satisfies the

definition of a signature under existing law. See Lone Star Air Sys., 401 S.W.3d at

859. Accordingly, we hold that the evidence is sufficient to establish that Tomlinson

signed the email and that the signed email satisfies the Statute of Frauds.

B. Indefiniteness

Tomlinson’s other ground for overturning the jury’s finding of liability is that

the contract was too indefinite to be enforceable. To be enforceable, an agreement

must contain all of its essential terms. See Fischer v. CTMI, L.L.C., 479 S.W.3d

231, 238 (Tex. 2016). We construe the contract as a whole “‘to determine what

purposes the parties had in mind at the time they signed’ it.” Id. at 239 (quoting

Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 841 (Tex.

2010)).

“Forfeitures are not favored in Texas, and contracts are construed to avoid

them.” Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774 (Tex.

2009). “Thus, if the parties clearly intended to agree and a ‘reasonably certain basis

for granting a remedy’ exists, we will find the contract terms definite enough to

provide that remedy.” Fischer, 479 S.W.3d at 239 (quoting RESTATEMENT

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(SECOND) OF CONTRACTS § 33 cmt. b (1981)). “[T]he degree of certainty required

may be affected by the dispute which arises and by the remedy sought.”

RESTATEMENT (SECOND) OF CONTRACTS § 33 cmt. b. “For example, when a suit

seeks money damages—rather than specific performance—less certainty is needed

to render a contract enforceable.” Gen. Metal Fabricating Corp. v. Stergiou, 438

S.W.3d 737, 751 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing Somers v.

Aranda, 322 S.W.3d 342, 345 (Tex. App.—El Paso 2010, no pet.)).

Here, the evidence shows that Tomlinson agreed to pay Khoury $400,000 at

7.5% interest over a period of four or five years. The estimation of payments

required under either option establishes that the payments were to have been

submitted monthly. Khoury testified that the parties agreed that Tomlinson would

elect whether to pay over a four year period or a five year period.

Tomlinson argued to the trial court that the agreement was indefinite because

it did not specify whether the loan would be repaid in four or five years. Because

the parties agreed that Tomlinson would elect which time period he would prefer,

this was not a term requiring further negotiation. See Fischer, 479 S.W.3d at 237

(holding leaving material terms open for future agreement means document is not

14
binding).4 We hold the contract is sufficiently certain to sustain the jury’s finding

of liability for breach of contract.

We hold that Tomlinson did not establish that Khoury’s breach-of-contract

claim failed as a matter of law or was legally insufficient. We sustain Khoury’s

second issue.

Attorneys’ Fees

In his third issue, Khoury argues that he is entitled to recover the attorneys’

fees that the jury awarded to him. A person may recover his attorneys’ fees when

he prevails on a breach of contract claim. TEX. CIV. PRAC. & REM. CODE ANN.

§ 38.001(8) (Vernon 2015). In his motion for judgment notwithstanding the verdict,

Tomlinson argued that Khoury was “legally precluded from recovering attorneys’

fees because he failed to segregate his fees.”

“[I]f any attorney’s fees relate solely to a claim for which such fees are

unrecoverable, a claimant must segregate recoverable from unrecoverable fees.”

Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313 (Tex. 2006). To preserve

this issue, however, the complaining party must object to the charge’s failure to

segregate. Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997). The charge

4
To the degree Tomlinson’s failure to act on his election created uncertainty in the
amount of interest Khoury could have collected, this is irrelevant to our analysis
because Khoury did not seek loss of interest as damages at trial. See Somers v.
Aranda, 322 S.W.3d 342, 345 (Tex. App.—El Paso 2010, no pet.) (holding terms
about interest were not material since interest was not awarded in judgment).

15
question on attorneys’ fees did not ask the jury to segregate attorneys’ fees. There

was no objection to the failure to segregate. Accordingly, this issue has not been

preserved. See id.

We sustain Khoury’s third issue.5

Conclusion

We reverse the trial court’s grant of Tomlinson’s judgment notwithstanding

the verdict for Khoury’s breach of contract claim and render judgment conforming

to the jury’s verdict.

Laura Carter Higley
Justice

Panel consists of Justices Keyes, Higley, and Lloyd.

5
The jury awarded the same amount of damages for all of Khoury’s claims. The
awards of actual damages for each claim are duplicative. Accordingly, we do not
need to reach Khoury’s first issue concerning his state securities violation claim
because it would not provide him greater relief. See TEX. R. APP. P. 47.1; King v.
Deutsche Bank Nat’l Trust Co., 472 S.W.3d 848, 856 (Tex. App.—Houston [1st
Dist.] 2015, no pet.). Likewise, we do not need to reach Tomlinson’s issues on
cross-appeal concerning Khoury’s common-law fraud claim because our holdings
in this opinion fully support the jury’s verdict. See TEX. R. APP. P. 47.1; Romero v.
Kroger Texas, L.P., No. 01-12-00049-CV, 2013 WL 6405477, at *4 (Tex. App.—
Houston [1st Dist.] Dec. 5, 2013, no pet.) (mem. op.).

16