Jones Lang Lasalle Brokerage, Inc. v. EKSS Realty, L.L.C.

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-24-00042-CV
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JONES LANG LASALLE BROKERAGE, INC., Appellant

V.

EKSS REALTY, L.L.C., Appellee

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On Appeal from the 411th District Court
Polk County, Texas
Trial Cause No. CIV31270
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MEMORANDUM OPINION

Jones Lang Lasalle Brokerage, Inc. (“JLL Brokerage”) appeals the trial

court’s take nothing judgment. JLL Brokerage sued EKSS Realty, L.L.C. (“EKSS”)

for breach of contract, alleging EKSS failed to pay JLL Brokerage an agreed-upon

commission in connection with the negotiation and execution of a lease renewal for

a commercial space owned by EKSS. Prior to trial, EKSS objected to the admission

of several emails which purported to show the creation and parties’ assent to the

payment of the agreed-upon commission on the basis that the emails were

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inadmissible parol evidence. The trial court sustained EKSS’s objection and

excluded the evidence. On appeal, JLL Brokerage complains that the trial court erred

by excluding its evidence of the written contract based upon the application of the

parol evidence rule. We affirm.

Background

Samuel Slovacek is a licensed commercial real estate salesperson with JLL

Brokerage. He and JLL Brokerage represented American Hospice, Inc. in

negotiating a second lease amendment with American Hospice’s landlord, EKSS.

Pat McCulley, a broker with Country World Realty, LLC, represented EKSS as its

broker during the negotiations.

On January 21, 2016, McCulley sent Slovacek EKSS’s proposed revisions to

JLL Brokerage’s proposal. The proposed revisions included a paragraph concerning

the brokerage fee, which stated:

Landlord acknowledges that there are no other procuring brokers
involved in this transaction other than Jones Lang LaSalle and Landlord
shall pay a full market commission of four percent (4%) of gross rentals
to Jones Lang LaSalle. Said commission shall be paid annually upon
the anniversary date of said lease.

On February 1, Slovacek emailed McCulley to confirm the calculation and

amount of the commission. McCulley responded “Yes that is the correct amount.”

On March 15, 2016, McCulley sent Slovacek by email a revised lease proposal and

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Commission Agreement. Neither the revised proposal nor the Commission

Agreement was signed by the parties.

EKSS and American Hospice, Inc. signed a Second Amendment to Lease on

August 1, 2016. The amendment contained the following paragraph regarding broker

fees:

Brokers. Landlord and Tenant represent and warrant to the other that
they have dealt only with Country World Realty, LLC and Jones
Lang LaSalle (“Brokers”) in connection with this Amendment and that,
insofar as they know, no other broker negotiated or is entitled to any
commission in connection with this Amendment. Landlord will pay any
commission annually owed to the Brokers and will indemnify and
defend Tenant from and against all claims (and costs of defending
against and investigating such claims) of any and all Brokers or similar
parties, including Brokers, claiming under Landlord in connection with
this Amendment. (emphasis in original)

On August 10, Slovacek emailed the Commission Agreement (signed by JLL

Brokerage) to Dr. Shane Shaw, the owner of EKSS, requesting his signature. The

Commission Agreement includes the following paragraph:

Agreement to Pay Commission. Landlord hereby agrees to pay a real
estate commission to Broker in a sum equal to four percent (4%) of the
Gross Rental (defined hereinafter) to be received by the Landlord
during the Lease term as shown in the Lease. The commission amount
is defined to be $16,387.20. (emphasis in original)

The Commission Agreement does not bear the signature of any representative of

EKSS.

In the following weeks, Slovacek emailed Dr. Shaw and McCulley an invoice

for commission and requests to return the signed Commission Agreement. On June
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23, 2017, attorneys for JLL Brokerage sent a demand letter to Dr. Shaw and Dr. Elias

Kanaan for failure to pay commissions pursuant to the Commission Agreement.

Suit was filed and the case proceeded to trial. At the conclusion of trial, the

jury did not find JLL Brokerage and EKSS agreed in writing that EKSS would pay

JLL Brokerage a 4% commission, and the trial court signed a take-nothing judgment.

JLL Brokerage then appealed, asserting the trial court erred in excluding JLL

Brokerage’s evidence under the parol evidence rule.

Standard of Review and Applicable Law

We review a trial court’s rulings admitting or excluding evidence for an abuse

of discretion. Heniff Transp. Sys., LLC v. Mack Individually and as Next Friend of

D.T.M., No. 09-19-00049-CV, 2019 Tex. App. LEXIS 9329, at *4 (Tex. App.—

Beaumont Oct. 24, 2019, pet. denied) (mem. op.); see also State v. Bristol Hotel

Asset Co., 65 S.W.3d 638, 647 (Tex. 2001) (citation omitted) (“Whether to admit or

exclude evidence is a matter committed to the trial court’s sound discretion.”). A

trial court abuses its discretion when it acts arbitrarily or unreasonably or without

reference to guiding rules and principles. Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241-42 (Tex. 1985). We will not reverse for the trial court’s

erroneous admission of evidence unless it “probably caused the rendition of an

improper judgment[.]” Tex. R. App. P. 44.1(a)(1).

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“When parties have entered into a valid, written, integrated contract, the parol

evidence rule precludes enforcement of any prior or contemporaneous agreement

that addresses the same subject matter and is inconsistent with the written contract.”

West v. Quintanilla, 573 S.W.3d 237, 243 (Tex. 2019). The parol evidence rule

precludes enforcement of an alleged agreement, not merely the admission of

evidence, regardless of whether the alleged agreement is oral or written. Id. “It is not

an evidence rule but a substantive rule of law.” Id. “The rule is particularly

applicable when the written contract contains a recital that it contains the entire

agreement between the parties or a similarly-worded merger provision.” Baroid

Equip., Inc. v. Odeco Drilling, Inc., 184 S.W.3d 1, 13 (Tex. App.—Houston [1st

Dist.] 2005, pet. denied).

The statute of frauds provision of the Real Estate License Act (“RELA”) in

section 1101.806(c) of the Texas Occupations Code states:

A person may not maintain an action in this state to recover a
commission for the sale or purchase of real estate unless the promise or
agreement on which the action is based, or a memorandum, is in writing
and signed by the party against whom the action is brought or by a
person authorized by that party to sign the document.

Tex. Occ. Code Ann. § 1101.806(c). “Strict compliance with RELA is required; the

agreement to pay a real estate commission must be in writing or it is not

enforceable.” Lathem v. Kruse, 290 S.W.3d 922, 925 (Tex. App.—Dallas 2009, no

pet.). To comply with RELA, an agreement or memorandum must:

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(1) be in writing and must be signed by the person to be charged with
the commission; (2) promise that a definite commission will be paid, or
must refer to a written commission schedule; (3) state the name of the
broker to whom the commission is to be paid; and (4) either itself or by
reference to some other existing writing, identify with reasonable
certainty the land to be conveyed.

Id. “The essential elements of a commission agreement cannot be supplied by parol

evidence.” Boyert v. Tauber, 834 S.W.2d 60, 62 (Tex. 1992).

Analysis

JLL Brokerage argues that the excluded evidence, namely an email from

EKSS’s broker who agreed to the amount of the commission due and a proposed

Commission Agreement which only JLL Brokerage signed and accepted, establishes

the existence of a written contract for the commissions. We disagree. “When it is

alleged that an email amounts to a contract binding on the sender, the email’s context

must be carefully examined to determine whether it truly evidences the grave intent

to be legally bound.” Copano Energy, LLC v. Bujnoch, 593 S.W.3d 721, 728 (Tex.

2020).

“Courts applying Texas law have confirmed that such writings couched in

futuristic language contemplating later negotiations do not satisfy the statute of

frauds.” Id. at 729. As such, the emails do not satisfy RELA’s statute-of-frauds

provision because they do not contain a promise that a definite commission will be

paid and are merely communications contemplating a contract or promise to be made

in the future. See id. (analyzing emails leading up to a contract and holding,
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“To satisfy the statute of frauds, it is not enough that the writings state potential

contract terms.”). McCulley’s February 1 email only confirms Slovacek’s formula

for calculating the commission. Subsequent emails show lease proposals and

continued negotiations between the two brokers. These discussions include concerns

about the commission payment. Considering all the emails, the trial court may have

reasonably concluded they were merely ongoing negotiations between JLL

Brokerage and EKSS over terms that did not find their way into the final, signed

version of the contract which contains different language regarding brokerage

commissions.

Moreover, the evidence shows that neither the Commission Agreement nor

the emails comply with the requirements of RELA since they were never signed by

the party to be charged with the commission, EKSS, or its owner, Dr. Shaw. Even if

the emails had been admitted, the result would have been the same because any

purported agreement therein would have been unenforceable due to noncompliance

with the requirements of RELA.

Conclusion

We overrule JLL Brokerage’s sole issue on appeal and affirm the trial court’s

judgment.

AFFIRMED.

KENT CHAMBERS
Justice
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Submitted on August 22, 2025
Opinion Delivered November 6, 2025

Before Golemon, C.J., Wright and Chambers, JJ.

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