                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00123-CV


JOHN HAWKINS                                                  APPELLANT

                                          V.

ANGELA MYERS                                                   APPELLEE


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          FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
                    TRIAL COURT NO. 2012-20790-158

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             MEMORANDUM OPINION 1 ON REHEARING

                                       ----------

      Appellant John Hawkins filed a motion for rehearing directed to our

December 31, 2014 memorandum opinion and judgment. We grant the motion

for rehearing, withdraw our prior opinion and judgment, and substitute the

following. See Tex. R. App. P. 49.3.



      1
       See Tex. R. App. P. 47.4.
      Hawkins appeals from the trial court’s summary judgment and sanctions

order entered in favor of appellee Angela Myers. We reverse both and remand

the case to the trial court for further proceedings.

                                 I. BACKGROUND

                             A. FACTUAL BACKGROUND

      Myers and Hawkins worked together at a marketing firm, Fusion

Performance Marketing. While at Fusion, Hawkins “generated and supervised”

an account for Yum Restaurants International (YRI). Myers also worked on the

account. Myers resigned 2 from Fusion in 2009 and formed a new company, Axis

Meetings Group, LLC. At some point, Fusion terminated Hawkins.

      At the time Myers left Fusion, a job as “Group Manager, Travel and

Meeting Services” became available at Frito–Lay. Hawkins had a previous, long-

time friendship with Paul Zmigrosky, the “senior VP of procurement for PepsiCo

Worldwide,” which is the parent company of Frito–Lay.             Beginning in

“July/August/September” of 2009, Hawkins—either at Myers’s request or in

response to an inquiry from “an employee of Frito–Lay” about possible applicants

for the vacancy—began talking to Zmigrosky about Frito–Lay’s possibly hiring

Myers.    Hawkins believed Myers would be “a good fit” for Frito–Lay and

encouraged Zmigrosky to hire her: “I said [to Zmigrosky] that Angela Myers is

one of the best operators of any type of meeting programs that I have ever been

      2
       Hawkins alternately averred that Myers was fired. Myers only stated that
she resigned from the job.

                                          2
around and that she was a very, very worthy person . . . and that he would be

remiss if he did not talk to Angela about taking [the position].” Hawkins believed

that he “essentially acted both in the capacity as Frito–Lay’s recruiter and

Myers’[s] negotiator with regard to the available Frito–Lay position.”

      On September 6, 2009, Hawkins told Zmigrosky that Myers would contact

him, presumably for an interview. Zmigrosky told Hawkins on October 1 that

Myers had impressed him. On October 8, Myers contacted Hawkins and told him

she had not “heard from Frito Lay” and that Fusion had asked Myers if she would

“work YRI on a contract basis so [Fusion] doesn’t lose the business.” Hawkins

talked to Zmigrosky who informed Hawkins that a human-resources delay had

slowed down his intention to hire Myers. Hawkins then passed this information

along to Myers on October 11, told her that she was going to get the job, and

advised that she should “try to manage [the YRI business] but you want to be

paid your salary for the next 6 months.”

      On October 15, Myers emailed Hawkins and said she was “worried” about

the delay in receiving the employment offer. Myers told Hawkins that YRI would

not be putting on a “Leadership Meeting” that year but that she would be working

on YRI’s “2011 Franchise Convention.”          The next morning on October 16,

Hawkins asked Zmigrosky for a “placement fee” for referring Myers because

Hawkins was having “cash flow issues.” The record does not reflect whether

Hawkins received such a fee, but Zmigrosky seemed unreceptive to Hawkins’s

request. Later that same day after Zmigrosky had indicated to Hawkins that a

                                           3
placement fee from Frito–Lay might not be forthcoming, Hawkins responded to

Myers’s email from the previous day, explained the delay—Frito–Lay had “a

hiring freeze in place”—and told Myers he would talk to Zmigrosky about

speeding things up if Myers “really meant” that he “would be [her] partner in 2011

on YRI.” Myers told Hawkins “yes on YRI 2011 . . . since [Hawkins] brokered the

arrangement with FL [i.e., Frito–Lay].”

      On October 26, Myers told Hawkins that she had been offered the position

with Frito–Lay but at a lower salary than she was expecting. Myers and Hawkins

then began to exchange emails discussing the details of the job offer, negotiation

strategies for Myers, and Myers’s possible continued work with YRI. 3         On

October 29, Zmigrosky told Hawkins that Myers had accepted the position and

would start December 1. Zmigrosky also told Hawkins the terms of Myers’s

employment including salary, signing bonus, and vacation benefits.

      Hawkins asserts that during this timeframe—“October and November of

2009”—he and Myers had agreed to “split the profits, 50/50,” from Myers’s YRI

business in 2011 in exchange for Hawkins’s helping Myers get an interview with

Frito–Lay and negotiating “her salary, her bonuses, her signing bonuses, start

dates[,] and permission to be able to operate the YRI program in 2011 going

forward.” Hawkins explained the specific terms of their agreement: “For . . .

helping get [Myers] the job at Frito–Lay and for . . . securing her the rights to

      3
       Hawkins mentioned to Myers that he had advised Zmigrosky that Myers
should be “allow[ed] to work on YRI.”

                                          4
operate the 2011 YRI program while employed at Frito–Lay[,] [s]he was wanting

to split - - make me a partner to profit, slash, revenue . . . on the 2011

program . . . . And I accepted.”

      On June 22, 2010 after Myers had been working for Frito-Lay for almost

seven months, Hawkins contacted Myers to “confirm [their] working relationship

for 2011 on YRI [and their] split of the proceeds on that program.”         Myers

cautioned Hawkins that the YRI business would not be as profitable as it had

been in the past: “I am concerned about YRI . . . [.] [I]t is not going to make the

huge amount of money it has in the past. All billing/payments are going through

YRI. I can bill for my hours and a modest management fee.” On September 14,

Hawkins emailed Myers to again ask about the YRI program: “I would really like

to visit with you on YRI. You made me the offer that we would split the profits 50

50 and of course I accepted. Remember you asked me to get [Zmigrosky] to OK

you to be able to work on that business before you accepted the job.”

      On February 14, 2011, Hawkins emailed Myers and expressed his

frustration that Myers would not respond about “what [she] proposed and

promised last year when [she was] terminated by Fusion.” Hawkins again asked

that Myers “honor” her agreement to “split 50/50 the compensation on YRI.”

Myers responded that she would not be making much on the YRI program but

stated that “once [she] finish[ed] the program and final billing,” she would send

Hawkins a “profit statement.” Myers stressed that she would be paying Hawkins

“1/2 OF THE NET”—gross profit minus expenses and taxes—and not the full

                                        5
amount paid by Fusion for Myers’s services.       Myers told Hawkins that she

“anticipate[d] making about $150,000 BEFORE expenses and taxes.”

      On June 21, Hawkins emailed Myers asking about “the YRI Program,”

which he believed had occurred “at the end of May,” and questioning whether

she needed his social-security number or tax information “for [his] part of the

payment.” Hawkins continued to ask Myers about payment in multiple emails

sent throughout the summer of 2011, several of which Myers did not respond to.

On July 6, Myers asked that a form generated by the Internal Revenue Service—

a W-9 form—be sent to Hawkins to request his taxpayer-identification number

and certification. On July 18, Myers responded to one of Hawkins’s inquiries and

told him that she would be sending him a check “[a]s soon as the reconciliation is

completed.” After another email from Hawkins on September 6 confirming that

he had sent the W-9 form to Myers and asking “where [Myers was] on the final

bill and balancing out of the [YRI] conference,” Myers told him that she would let

him know when “the billing is done and the profits calculated” and asked him to

“stop sending [her] these emails.”

      On October 14, Hawkins’s attorney sent a demand letter to Myers asking

for an accounting of the YRI program. Myers responded and asserted that there

was no agreement between herself and Hawkins and that any money she would

have given Hawkins “would have been a ‘gesture of kindness’ nothing else.” She

stated that although her previous intent had been to pay Hawkins, she had not

received final payment for the program; therefore, when she was paid, she would

                                        6
not share the payment with Hawkins because Hawkins had hired an attorney.

She further claimed that she would not produce the requested accounting

because it was “the property of Axis.”

                             B. PROCEDURAL HISTORY

      In 2012, Hawkins sued Myers for breach of contract.         He alleged that

Myers had “breached the terms of the Agreement by failing to pay the amounts

due” him even though he had “fully performed all of his obligations pursuant to

the Agreement.” See Tex. R. Civ. P. 54. Myers answered, asserting several

affirmative defenses including illegality and ambiguity. See Tex. R. Civ. P. 94.

      Hawkins issued a notice of deposition by written questions and a

subpoena for the production of documents to YRI. See Tex. R. Civ. P. 176.2(b),

176.6(c), 200.1.    Attached to these questions was a “Summary of Billing

Issues/Profitability” (the summary) that allegedly contained misstatements of fact

and allegations of fraud regarding Myers’s billing for the YRI program. Myers

filed a motion to quash the notice and sought an emergency protective order

because she believed the statements in the summary would “interfere with [her]

business relationship with [YRI] and cause immediate harm to that business and

contractual relationship.” See Tex. R. Civ. P. 176.6(d)–(e), 192.6. The trial court

granted Myers an emergency protective order and ordered Hawkins to stop all

efforts to serve YRI with the notice of deposition.

      Myers then filed a motion seeking sanctions against Hawkins under rules

13 and 215.3. See Tex. R. Civ. P. 13, 215.3. Myers attached her affidavit in

                                          7
which she set out the alleged misstatements in the summary and the harm the

notice and subpoena allegedly would cause. Myers previously had also attached

this same affidavit to her motion to quash. After a nonevidentiary hearing, the

trial court granted Myers’s motion for sanctions and ordered Hawkins to pay

Myers $5,000 “as reasonable and necessary attorney’s fees pursuant to Tex. R.

Civ. P. 215.3.”

      Hawkins filed a motion for summary judgment arguing that he had fully

performed under his agreement with Myers and that Myers had breached the

agreement by failing to pay him. Myers responded and asserted that Hawkins

was not entitled to summary judgment because the agreement “lacks material

terms, lacks a meeting of the minds, and violates the statute of frauds.” Myers

also argued in her response that Hawkins did not show that they intended for the

agreement to be mutual and binding. Myers then moved for summary judgment

on Hawkins’s breach-of-contract claim asserting the same grounds raised in her

response to his summary-judgment motion: (1) statute of frauds, (2) no meeting

of the minds, (3) undecided or unconfirmed terms, and (4) no intent for Myers to

be bound.     Hawkins responded to Myers’s summary-judgment motion by

incorporating his motion for summary judgment.

      On October 31, 2013, after hearing the parties’ motions, the trial court

signed an order denying Hawkins’s motion and granting Myers’s motion without




                                       8
specifying on what grounds. 4 The trial court also overruled Hawkins’s objections

to Myers’s summary-judgment evidence. Hawkins timely filed a motion for new

trial and argued that two of the bases for Myers’s motion—“that the contract

violated the statute of frauds” and “that the contract was unenforceable due to

vagueness”—had not been proved as a matter of law. 5             The motion was

overruled by operation of law. See Tex. R. Civ. P. 329b(c).

      Hawkins appeals the trial court’s summary-judgment and sanctions orders.

In issue one, he asserts that the trial court erred by granting summary judgment

in favor of Myers on the grounds she asserted—statute of frauds, no meeting of

the minds based on indefiniteness, and no mutuality.          In his second issue,

Hawkins argues that the trial court erred by denying his motion for summary

judgment because he proved each element of breach of contract as a matter of

law. Hawkins also argues as part of his second issue that the trial court erred by

overruling his objections to Myers’s summary-judgment evidence attached to her

response to his motion for summary judgment. Hawkins argues in his third issue

      4
       Although Hawkins raised other claims against Myers, and Myers raised
counterclaims against Hawkins, and although the summary-judgment motions
solely addressed Hawkins’s breach-of-contract claim, Hawkins nonsuited his
remaining claims and the trial court dismissed Myers’s counterclaims on Myers’s
motion; thus, the trial court’s October 31, 2013 order became final once the
remainder of the claims were dismissed. See Tex. R. Civ. P. 96, 162; In re
Bennett, 960 S.W.2d 35, 38 (Tex. 1997) (orig. proceeding), cert. denied, 525
U.S. 823 (1998); McClure v. JPMorgan Chase Bank, 147 S.W.3d 648, 652 (Tex.
App.—Fort Worth 2004, pet. denied).
      5
     In the motion, Hawkins also moved for reconsideration of the trial court’s
summary-judgment order and to vacate the sanctions order.

                                        9
that the trial court erred by ordering sanctions against him because it failed to

comply with the requirements of rule 215.3.        In his fourth issue, Hawkins

contends that the trial court erred by denying his motion for new trial, which is

merely a restatement of the grounds supporting his first three issues.

                           II. SUMMARY JUDGMENT

                            A. STANDARDS OF REVIEW

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

      A plaintiff is entitled to summary judgment on a cause of action if he

conclusively proves all essential elements of the claim.       See Tex. R. Civ. P.

166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). A defendant who

conclusively negates at least one essential element of a cause of action is

entitled to summary judgment on that claim.      Frost Nat’l Bank v. Fernandez,

315 S.W.3d 494, 508 (Tex. 2010).        Once the defendant produces sufficient

evidence to establish her right to summary judgment, the burden shifts to the

plaintiff to come forward with competent controverting evidence that raises a

genuine issue of material fact regarding the challenged element. Van v. Pena,

990 S.W.2d 751, 753 (Tex. 1999).

                                        10
      A defendant is entitled to summary judgment on an affirmative defense if she

conclusively proves all the elements of the affirmative defense by presenting

summary-judgment evidence establishing each element of the defense as a matter

of law. Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008); Ryland Group, Inc. v.

Hood, 924 S.W.2d 120, 121 (Tex. 1996); see Tex. R. Civ. P. 166a(b), (c). If a

defendant so establishes her affirmative defense, the burden shifts to the

nonmovant plaintiff to show why summary judgment should not be granted. Lathem

v. Kruse, 290 S.W.3d 922, 924 (Tex. App.—Dallas 2009, no pet.).

      When, as here, both parties move for summary judgment and the trial

court grants one motion and denies the other, we review both parties’ summary-

judgment evidence and determine all questions presented.          Mann Frankfort,

289 S.W.3d at 848; see Myrad Props., Inc. v. LaSalle Bank Nat’l Ass’n,

300 S.W.3d 746, 753 (Tex. 2009). When the order granting summary judgment

does not specify the grounds upon which the trial court relied, we must affirm the

summary judgment if any of the independent summary-judgment grounds is

meritorious. FM Props. Operating Co. v. City of Austin, 22 SW.3d 868, 872 (Tex.

2000). But we may affirm a summary judgment only on the grounds expressly

raised in the motion.   See Stiles v. Resolution Trust Corp., 867 S.W.2d 24,

26 (Tex. 1993).

                             B. STATUTE OF FRAUDS

      As we previously recited, Hawkins attacks the trial court’s summary-

judgment order and failure to grant a new trial on his breach-of-contract claim in

                                       11
his first, second, and fourth issues. We turn first to whether Myers conclusively

established her affirmative defense based on the statute of frauds by producing

evidence establishing each element of the defense.

      As the party pleading the statute of frauds, Myers bore the burden of

establishing its applicability—that the agreements could not be performed within

a year of the date of making them.             See Tex. Bus. & Com. Code Ann.

§ 26.01(b)(6) (West 2015); Dynegy, Inc. v. Yates, 422 S.W.3d 638, 642 (Tex.

2013); Kalmus v. Oliver, 390 S.W.3d 586, 589 (Tex. App.—Dallas 2012, no pet.).

Myers specifically raised the applicability of the statute of frauds based on

section 26.01(b)(6) in her motion for summary judgment and in response to

Hawkins’s summary-judgment motion. When a promise or agreement, either by

its terms or by the nature of the required acts, cannot be completed within one

year, it falls within the statute of frauds and is unenforceable unless it is in writing

and signed by the person to be charged. See Tex. Bus. & Com. Code Ann.

§ 26.01(a), (b)(6). Whether an agreement falls within the statute of frauds is a

question of law, but the determination of whether an exception to the statute of

frauds applies is generally a question of fact. See Dynegy, 422 S.W.3d at 642;

Kalmus, 390 S.W.3d at 589; Vt. Info. Processing, Inc. v. Mont. Beverage Corp.,

227 S.W.3d 846, 853–54 (Tex. App.—El Paso 2007, no pet.).

      In deciding whether an agreement is capable of being performed within

one year, we compare the date of the agreement to the date when the

performance under the agreement is to be completed. See Tex. Bus. & Com.

                                          12
Code Ann. § 26.01(b)(6); Young v. Ward, 917 S.W.2d 506, 508 (Tex. App.—

Waco 1996, no writ). If there is a year or more between those two dates, a

writing is required to render the agreement enforceable. Young, 917 S.W.2d at

508.

       Myers attached to her motion for summary judgment and to her response

to Hawkins’s motion for summary judgment Hawkins’s deposition testimony in

which he stated that he and Myers had agreed to split the profits from the 2011

YRI program in exchange for Hawkins’s help in getting Myers the job with Frito–

Lay in October 2009.       Further, Hawkins admitted in Myers’s request for

admissions, which Myers attached to her motion for summary judgment, that they

entered their agreement in 2009. The summary-judgment evidence shows that

although Hawkins began asking Myers to “confirm” their agreement in June 2010

and continued to ask Myers to recognize their arrangement in the months

following, Hawkins did not request payment until June 21, 2011—after Myers

completed the YRI program sometime in late May 2011. The oral agreement

Hawkins seeks to enforce was entered into in 2009, but the YRI program that

would trigger payment to Hawkins under the agreement did not occur until May

2011. The contract could not be performed within one year; thus, the statute of

frauds applied, rendering the agreement unenforceable in the absence of a

writing. See Dynegy, 422 S.W.3d at 641.

       Accordingly, Myers established her affirmative defense as a matter of law,

shifting the burden to Hawkins to raise a fact issue on an exception to the

                                       13
application of the statute of frauds. See id. at 641–42 (recognizing that party

seeking to avoid statute of frauds bears burden to establish an exception taking

the oral contract out of the statute of frauds). Hawkins asserted in his motion for

summary judgment and in response to Myers’s summary-judgment motion that

he had fully performed his obligations under the agreement, which exempts an

oral contract from the application of the statute of frauds. 6 See In re Fairchild

Aircraft Corp., 6 F.3d 1119, 1128 (5th Cir. 1993) (citing Pou v. Dominion Oil Co.,

265 S.W. 886, 888 (Tex. 1924) for the proposition that full performance takes oral

contract out of the statute of frauds); Miller v. Roberts, 18 Tex. 16 (1856)

(“[W]here one side of a contract is to be performed within a year, and is so

performed, it is no objection to the enforcement of the contract, under the statute

of frauds, that it is not in writing, although the other side of the contract may be in

its nature incapable of performance within a year.”); see also Davis v.

Insurtek, Inc., No. 05-09-01029-CV, 2010 WL 5395668, at *3–4 (Tex. App.—

Dallas Dec. 30, 2010, no pet.) (mem. op.); McElwee v. Estate of Joham,


      6
        Other than his objections to Myers’s summary-judgment evidence,
Hawkins’s summary-judgment response was only a statement that he
incorporated his motion for summary judgment and all supportive evidence into
his summary-judgment response. Myers seems to assert that Hawkins waived
the full-performance exception by failing to explicitly restate this ground in his
summary-judgment response. We conclude that Hawkins’s statement in his
summary-judgment response that he was incorporating his summary-judgment
motion—which was only three pages in length—was sufficient to raise the full-
performance exception in his response such that it was sufficiently raised in the
trial court. See In re Consolidated Freightways, Inc., 75 S.W.3d 147, 152 (Tex.
App.—San Antonio 2002, orig. proceeding).

                                          14
15 S.W.3d 557, 559 (Tex. App.—Waco 2000, no pet.); 626 Joint Venture v.

Spinks, 873 SW.2d 73, 76 (Tex. App.—Austin 1993, no writ); Estate of Kaiser v.

Gifford, 692 S.W.2d 525, 526 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d

n.r.e.); Restatement (Second) of Contracts § 130(2) & cmt. d (1981). Indeed,

“[w]here a contract is executed on one side and nothing remains but the payment

of the consideration, this may be recovered notwithstanding the Statute of

Frauds.” 7 Machann v. Machann, 269 S.W.2d 826, 828 (Tex. Civ. App.—Waco

1954, writ ref’d n.r.e.); see also Holland v. W.C. Belcher Land Mortg. Co.,

248 S.W. 803, 807 (Tex. Civ. App.—Fort Worth 1922, writ dism’d w.o.j.) (holding

statute of frauds inapplicable to promise to convey land where land was actually

conveyed within one year of agreement).

      Hawkins proffered summary-judgment evidence that he fully performed his

duties under the alleged oral contract.     He stated in his summary-judgment


      7
       We recognize that the exception of partial performance requires strong
evidence that Hawkins suffered a substantial detriment for which he has no
adequate remedy, that Myers would reap an unearned benefit, and that
Hawkins’s partial performance was unequivocally referable to the alleged oral
contract. See Nat’l Prop. Holdings, L.P. v. Westergren, No. 13-0801, 2015
WL 123099, at *5 & n.2 (Tex. Jan. 9, 2015); Exxon Corp. v. Breezevale Ltd.,
82 S.W.3d 429, 439 (Tex. App.—Dallas 2002, pets. denied); Wiley v. Bertelsen,
770 S.W.2d 878, 882 (Tex. App.—Texarkana 1989, no writ) (citing Chevalier v.
Lane’s, Inc., 213 S.W.2d 530, 533–34 (Tex. 1948)). But partial performance as
an exception to the application of the statute of frauds is separate and distinct
from the exception of full performance. Davis, 2010 WL 5395668, at *4 n.3;
49 David R. Dow & Craig Smyser, Texas Practice Series: Contract Law § 4.34
(2005); 41 Tex. Jur. Frauds, Statute of § 117 (2007). We do not address partial
performance as it was not raised by Hawkins nor addressed by Myers in the trial
court.

                                       15
affidavit that on Myers’s behalf, he negotiated Myers’s compensation package

and ensured she could continue to manage events for YRI after her employment

with Frito–Lay. Hawkins attached to his affidavit emails between himself and

Myers in which Myers acknowledged that she would pay him part of her

compensation from the 2011 YRI program and requested his help in getting and

negotiating the terms of the Frito–Lay job. Hawkins also asserted facts raising

his full performance in his discovery responses, which Myers attached to her

motion for summary judgment. See Tex. R. Civ. P. 166a(c). This evidence

raised a genuine issue of material fact regarding the exception of full

performance. Therefore, to the extent the trial court granted Myers judgment as

a matter of law based on the statute of frauds, the summary judgment was in

error.

                              C. MEETING OF THE MINDS

         Myers argued in the trial court and now on appeal that she was entitled to

judgment as a matter of law on Hawkins’s breach-of-contract claim because the

essential terms of the alleged oral contract—what expenses Myers could deduct

from the YRI payment, what constituted “net profits,” and the duration of the

contract—were either uncertain or open to future negotiation. The elements of

an enforceable contract are (1) an offer, (2) an acceptance, (3) a meeting of the

minds, (4) each party’s consent to the terms, (5) execution and delivery of the




                                         16
contract with the intent that it be mutual and binding, and (6) consideration. 8

Coleman v. Reich, 417 S.W.3d 488, 491 (Tex. App.—Houston [14th Dist.] 2013,

no pet.). Myers essentially attacks whether there was a meeting of the minds

between her and Hawkins and, therefore, challenges the evidence to support the

third element of Hawkins’s breach-of-contract claim. See 49 Dow & Smyser,

supra note 7, at § 1.11 (“The most common reason . . . for a failure of the parties’

minds to meet is that there is disagreement as to one or more material terms of

the ostensible contract.”). For the reasons that follow, we conclude that genuine

issues of material fact regarding this element of Hawkins’s breach-of-contract

claim       precluded   summary   judgment.    See,   e.g.,   Harris   v.   Balderas,

27 S.W.3d 71, 77–79 (Tex. App.—San Antonio 2000, pet. denied).

        Whether or not the parties formed a contract is a fact question. 9 T.O.

Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221–22 (Tex. 1992);

Harris, 27 S.W.3d at 79. For a court to conclude that an enforceable and legally

binding contract existed, the contract must be sufficiently definite, certain, and

clear in its essential terms. Fort Worth ISD v. City of Fort Worth, 22 S.W.3d 831,

846 (Tex. 2000);          T.O. Stanley, 847 S.W.2d at 221; S. v. Goetting,


        8
      The elements of a written contract and an oral contract are the same and
must be present in order for it to be binding.          Hubbard v. Shankle,
138 S.W.3d 474, 481 (Tex. App.—Fort Worth 2004, pet. denied).
        9
       The follow-up inquiry—whether a formed contract was enforceable—is a
question of law. McCalla v. Baker’s Campground, Inc., 416 S.W.3d 416, 418
(Tex. 2013).

                                         17
353 S.W.3d 295, 299–300 (Tex. App.—El Paso 2011, pet. denied).             But the

parties may agree on some terms sufficient to create a contract, leaving other

provisions for later negotiation.     Crisp Analytical Lab, L.L.C. v. Jakalam

Props., Ltd., 422 S.W.3d 85, 89 (Tex. App.—Dallas 2014, pet. denied).          The

determination of what terms are essential to a contract is determined on a

contract-by-contract basis, depending on the subject matter of the contract at

issue. T.O. Stanley, 847 S.W.2d at 221. The parties must have a meeting of the

minds and must communicate consent to the essential terms of the alleged

agreement, which is determined based on an objective standard of what the

parties said and did rather than on their subjective states of mind. Baroid Equip.,

Inc. v. Odeco Drilling, Inc., 184 S.W.3d 1, 17 (Tex. App.—Houston [1st Dist.]

2005, pets. denied); Angelou v. African Overseas Union, 33 S.W.3d 269, 279

(Tex. App.—Houston [14th Dist.] 2000, no pet.).

      Myers first asserts that there was no meeting of the minds because she

and Hawkins did not agree what constituted net profits or what expenses she

could deduct from YRI’s payment before splitting the amount with Hawkins. In

his summary-judgment affidavit, Hawkins stated that the course of dealing

between Hawkins and Myers when they worked together at Fusion was that

profitability of a program was determined after deducting “direct program

expenses” from the gross amount paid:

      Items such as employee’s personal income taxes, self-employment
      taxes, annual corporate franchise taxes, personal IRA, 401k or SEP
      contributions, amounts claimed by Myers for her own labor for the

                                        18
      programs . . . , and attorneys’ fees not directly related to legal work
      for the specific program, were not deductible for calculation of
      profitability of the program. Such items are not deductible as direct
      program expenses for the purpose of calculating program profit for
      the 2011 [YRI] Event . . . . Myers’[s] 2011 Federal Income Tax
      Return states the [$531,383] net profit generated from the 2011
      [YRI] Event [was] calculated by subtracting the direct program
      expenses from gross revenues for such program, for which I am
      entitled to 50% pursuant to our agreement.

      At his deposition, Hawkins testified that he and Myers did not define what

net profits were or what expenses she could deduct to arrive at the net-profit

amount and that how net profits would be calculated was not discussed until after

he filed suit because it was unknown “how the billing was occurring in any sort,

form or fashion to even ask a question about anything.” In their post-agreement

email correspondence, Myers indicated that she understood net profits to equate

to her gross profit minus “expenses and taxes.” During Hawkins’s deposition,

Myers proffered as an exhibit her unsworn and unsigned “accounting of the cost

of the [2011 YRI] program,” which showed that her “Net Income” from that

program was $126,913.21. 10 Myers’s 2011 tax return, which Hawkins attached

as an exhibit to his motion for summary judgment, reflected that the net profit

from the program was $531,383, which was arrived at after Myers deducted

allowable expenses—$146,481—from the gross income she earned—$677,864.


      10
        Myers arrived at this number by deducting $2,944,703.53 for expenses
such as “attorney fees,” “insurance expense,” “retirement fund,” “federal income
tax,” and “website expense” from Axis’s “Gross Profit” of $3,071,616.74 realized
from the 2011 YRI program. At his deposition, Hawkins disputed that this was a
“true accounting.”

                                        19
The reasonableness of the expenses Myers attempted to deduct from her gross

profits from the 2011 YRI program to arrive at a net-profit amount was not an

essential term of the contract. See Crisp Analytical, 422 S.W.3d at 89–90. At no

point during Myers and Hawkins’s one-year correspondence about the

agreement or at any time before Hawkins’s attorney made a formal demand for

payment from Myers did she dispute that she had agreed to split the net profit

from the 2011 YRI program with Hawkins.        Therefore, we conclude that the

meaning of net profit or what expenses could be deducted were not essential

terms that precluded enforcement of the oral agreement to evenly split the net

profits.   See Burnside Air Conditioning & Heating, Inc. v. T.S. Young Corp.,

113 S.W.3d 889, 895 (Tex. App.—Dallas 2003, no pet.) (holding in personal-

services contract that “the failure to specify a price does not necessarily render

the contract so indefinite as to be unenforceable” and that reasonable price could

be supplied through evidence of usual and customary fees charged in the

industry); Pennington v. Jerry F. Grukoff, D.O., P.A., 899 S.W.2d 767, 770 (Tex.

App.—Fort Worth 1995, writ denied) (holding personal-services, oral contract

enforceable even though parties failed to specify a price and presuming

reasonable price intended); see also Crisp Analytical, 422 S.W.3d at 90

(“Although Crisp argues in its brief other essential elements were missing from

the [oral] contract, such as how to determine the reasonableness of expenses, it

cites no authority holding such terms are essential to the enforcement of a

contract.”).   See generally Bendalin v. Delgado, 406 S.W.2d 897, 900 (Tex.

                                       20
1966) (“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 contact so incomplete that it cannot be enforced. In

such a case it will be presumed that a reasonable price was intended.”).

      Myers also argues that the oral agreement fails for indefiniteness because

there was no meeting of the minds on the duration of the agreement, i.e., “for

what years and for how long is the contract covering the YRI accounts to be in

effect (2011, or 2013, or 2015).”    In response to Myers’s discovery request,

Hawkins admitted that his agreement with Myers to split the net profits applied to

YRI programs in 2011, 2013, and 2015. At his deposition, however, Hawkins

testified that their agreement only extended to the 2011 YRI program “after going

back and reading the e-mails.” Hawkins alleged that their agreement was to split

the net profits only from the 2011 YRI program and requested enforcement only

as to 2011.   In his amended petition filed the same day as his deposition,

Hawkins did not plead for recovery of any amounts regarding the 2013 or 2015

YRI programs and specifically alleged that their agreement solely extended to the

2011 YRI program. Myers expressly agreed to split the net profits from the 2011

YRI program “since [Hawkins] brokered the arrangement with [Frito–Lay].”

Therefore, the duration of the agreement, even if deemed an essential term, is

not in dispute.   Cf. Inimitable Grp., L.P. v. Westwood Grp. Dev. II, Ltd.,

264 S.W.3d 892, 899 (Tex. App.—Fort Worth 2008, no pet.) (recognizing



                                       21
absence of contract duration not always considered essential term barring

enforcement of oral agreement).

                            D. MUTUAL AND BINDING

      Myers additionally argued in the trial court and now on appeal that she was

entitled to summary judgment on Hawkins’s breach-of-contract claim because he

failed to prove that there was an execution and delivery of a contract with the

intent that it be mutual and binding. In other words, she argued that there was no

evidence of the fifth element of an enforceable contract.      In the trial court,

Myers’s argument was one sentence and merely recited that Hawkins failed to

prove the fifth element with no further discussion. On appeal, Myers refines her

argument to assert that there was no “intent that it be mutually binding upon her

in 2009,” the inception of the alleged agreement. In the absence of a written

agreement, whether the parties objectively intended for the agreement to be

mutual and binding is a question of fact.             Karns v. Jalapeno Tree

Holdings, L.L.C., No. 08-13-00314-CV, 2015 WL 737926, at *5 (Tex. App.—

El Paso Feb. 20, 2015, no pet. h.).

      We conclude that the summary-judgment evidence, particularly Hawkins’s

and Myers’s emails and Hawkins’s affidavit statements raised a genuine issue of

material fact on their objective intent that the agreement be mutual and binding.

See Rice v. Metro. Life Ins. Co., 324 S.W.3d 660, 671–72 (Tex. App.—Fort

Worth 2010, no pet.).     Further, mutuality is applied and determined when

enforcement is sought, not when the promises were made as argued by Myers.

                                       22
Frequent Flyer Depot, Inc. v. Am. Airlines, Inc., 281 S.W.3d 215, 224 (Tex.

App.—Fort Worth 2009, pet. denied), cert. denied, 559 U.S. 1036 (2010). 11

                                 E. SUMMARY

      Genuine issues of material fact regarding whether Hawkins and Myers

entered into an oral contract and whether Hawkins fully performed such that the

statute of frauds was inapplicable precluded entry of summary judgment in favor

of either Hawkins or Myers. 12     Therefore, the trial court correctly denied

Hawkins’s summary-judgment motion but improperly granted Myers’s motion.

We sustain Hawkins’s first issue. We overrule Hawkins’s second issue attacking

the denial of his summary-judgment motion.      Because Hawkins’s arguments

regarding the denial of his motion for new trial are the same as his summary-

judgment arguments, we need not address issue four. See Tex. R. App. P. 47.1.




      11
         Even if we concluded there was a lack of intent that the agreement be
mutual and binding at the time it was made, Hawkins fully performed, which
conferred a benefit on Myers, i.e., her employment with Frito–Lay and ability to
profit from the YRI 2011 program. Therefore, Myers would be precluded from
contesting this element of contract formation. See Cherokee Commc’ns, Inc. v.
Skinny’s, Inc., 893 S.W.2d 313, 315–16 (Tex. App.—Eastland 1994, writ denied).
      12
        We do not address those portions of Hawkins’s second issue regarding
the overruling of his objections to Myers’s summary-judgment evidence because
the remaining summary-judgment evidence revealed the existence of genuine
issues of material fact regarding Hawkins’s breach-of-contract claim, precluding
entry of judgment as a matter of law. See Tex. R. App. P. 47.1; ABT Galveston
Ltd. P’ship v. Galveston Cent. Appraisal Dist., 137 S.W.3d 146, 154 n.21 (Tex.
App.—Houston [1st Dist.] 2004, no pet.).

                                       23
                             III. SANCTIONS

      In his third issue, Hawkins argues that the trial court abused its discretion

by ordering sanctions “under Tex. R. Civ. P. 215.3 without a motion for such

relief, without an evidentiary hearing, without admission of any exhibits, without

any evidence of any wrongdoing, without taking judicial notice of any matter, and

without any evidence of attorneys’ fees.” We review a trial court's imposition of

discovery sanctions for an abuse of discretion. Am. Flood Research, Inc. v.

Jones, 192 S.W.3d 581, 583 (Tex. 2006). We will reverse such a ruling only if

the trial court acted “without reference to any guiding rules and principles,” such

that its ruling was arbitrary or unreasonable. Cire v. Cummings, 134 S.W.3d 835,

839 (Tex. 2004).

      When a trial court concludes that a party has abused the discovery

process, the court is authorized to impose a sanction that is appropriate and just

under the circumstances. Tex. R. Civ. P. 215.3. Sanctions are appropriate and

just if (1) there is a direct relationship between the sanctionable conduct and the

sanction imposed and (2) less severe sanctions would not have been sufficient to

promote compliance, i.e., the award was not excessive.           See Am. Flood,

192 S.W.3d at 583; TransAm. Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917

(Tex. 1991) (orig. proceeding). “A sanction imposed for discovery abuse should

be no more severe than necessary to satisfy its legitimate purposes. It follows

that a court must consider the availability of less stringent sanctions and whether



                                        24
such lesser sanctions would fully promote compliance.” TransAm., 811 S.W.2d

at 917.

      Here, the record contains no evidence to explain how the trial court arrived

at the $5,000 amount of the sanction or whether lesser sanctions were

considered. The sanctions order, which was drafted by Myers, does not explain

the trial court’s reasons for using this amount nor does the record from the

hearing. Although Myers’s counsel produced an “attorney’s fees summary” at

the hearing, it was neither admitted into evidence nor included as part of the

appellate record.   The record is insufficient to allow this court to determine

whether the award was excessive or whether the trial court considered lesser

sanctions; therefore, we conclude the trial court abused its discretion by

awarding $5,000 as a discovery sanction against Hawkins in the absence of a

record to support a conclusion that an award of that amount was appropriate and

just. See Union Carbide Corp. v. Martin, 349 S.W.3d 137, 145–47 (Tex. App.—

Dallas 2011, no pet.); Jones v. Am. Flood Research, Inc., 218 S.W.3d 929, 932–

33 (Tex. App.—Dallas 2007, no pet.) (op. on remand). Of course, this conclusion

is not a holding that a party must provide proof of necessity or reasonableness of

attorney’s fees when such fees are awarded as a sanction.              See Scott

Bader, Inc. v. Sandstone Prods., Inc., 248 S.W.3d 802, 816–17 (Tex. App.—

Houston [1st Dist.] 2008, no pet.).    We merely conclude that in order for a

sanctions award to be considered appropriate and just, the record must show a

direct relationship between the conduct and the sanction and that the award was

                                       25
not excessive. See Jones, 218 S.W.3d at 932–33. We sustain Hawkins’s third

issue. 13

                               IV. CONCLUSION

       Because genuine issues of material fact preclude summary judgment on

Hawkins’s breach-of-contract claim, we sustain Hawkins’s first issue but overrule

part of his second issue. We sustain issue three based on the trial court’s abuse

of discretion in awarding sanctions.    We need not address issue four or the

remaining portion of issue two.        Accordingly, we reverse the trial court’s

sanctions order and the trial court’s order granting summary judgment in favor of

Myers and remand to the trial court for further proceedings consistent with this

opinion. See Tex. R. App. P. 43.2(d), 43.3(a).




                                                  /s/ Lee Gabriel

                                                  LEE GABRIEL
                                                  JUSTICE

PANEL: MEIER, GABRIEL, and SUDDERTH, JJ.

DELIVERED: April 9, 2015




       13
       We need not address the remainder of Hawkins’s arguments regarding
the sanctions award. See Tex. R. App. P. 47.1.

                                        26
