Summary
In Lawler, the purchasers sued for breach of a contract to sell real estate. The jury found the seller breached the contract and awarded $295,696.
Summary of this case from Stafford v. Southern VanityOpinion
No. 05-03-00468-CV
Opinion issued June 3, 2004.
On Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-595-00.
Affirmed in part, Reversed and Remanded in part.
Before Justices WHITTINGTON, JAMES, and O'NEILL.
MEMORANDUM OPINION ON REHEARING
We grant appellees' motion for rehearing and withdraw our opinion of April 16, 2004. This is now the opinion of the Court. In this breach of a real estate contract case, Roger Lawler appeals the trial court's judgment, entered after a jury verdict, awarding specific performance to Nick DiGiuseppe, doing business as Southbrook Development Company, and Frisco Master Plan, L.P. (collectively "appellees"). Lawler brings three issues on appeal, arguing: (1) the court erred in its construction of the contract; (2) there was insufficient evidence to support the finding of monetary damages; and (3) the court erred in awarding specific performance. Appellees assert two cross points. The facts of this case are well-known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are clearly settled in the law, we issue this memorandum opinion. See Tex.R.App.P. 47.4. We reverse the judgment of the trial court in part, affirm it in part, and remand it in part for the following reasons.
Specific Performance
A jury found that Lawler failed to comply with a land-sale contract between him and appellees, and it concluded that $295,696.93 would fairly compensate appellees for their damages for Lawler's breach. However, appellees filed a motion for judgment in which they argued they were entitled to specific performance. The court entered final judgment and granted appellees specific performance; the court compelled Lawler to accept funds and transfer title of the property at issue. In his third issue, Lawler argues the court erred by awarding specific performance. We agree.
When contested fact issues must be resolved before equitable relief can be determined, a party is entitled to have a jury resolve the fact dispute. See R.R. St. Co., Inc. v. Pilgrim Enters., Inc., 81 S.W.3d 276, 304 (Tex. App.-Houston [1st Dist.] 2001, pet. granted); see also State v. Tex. Pet Foods, 591 S.W.2d 800, 803 (Tex. 1979). In the equitable remedy of specific performance, one of the essential elements on which there may be contested fact issues is whether the party who seeks specific performance has pleaded and proved that he is ready, willing, and able to perform the contract. Chessher v. McNabb, 619 S.W.2d 420, 421 (Tex.Civ.App. — Houston [14th Dist.] 1981, no writ). Where a party clearly refuses to perform his part of a contract, the other party need not tender performance before bringing suit. 17090 Parkway, Ltd. v. McDavid, 80 S.W.3d 252, 256 (Tex. App.-Dallas 2002, pet. denied). Even where tender of performance is excused, a party must plead and prove he is ready, willing, and able to perform. Id.; Chessher, 619 S.W.2d at 421; Hendershot v. Amarillo Nat'l Bank, 476 S.W.2d 919, 920 (Tex.Civ.App. — Amarillo 1972, no writ). When a party seeks to prove it is ready, willing, and able to perform under the terms of a contract, but is unable to prove it has a firm commitment for financing, that party is not entitled to specific performance of the contract. Hendershot, 476 S.W.2d at 921.
Frisco asserted a claim for specific performance in its pleadings, but Diguiseppe did not. Neither party, though, sought a jury finding on the fact issue of whether appellees were ready, willing, and able to perform the contract. Appellees testified several builders were available to fund the purchase price at the closing, but admitted they had no firm commitment from the unnamed builders to do so. At best, this issue of whether appellees were ready, willing, and able to perform the contract was disputed at trial. Accordingly, this was a disputed fact issue to be resolved before equitable relief could be determined. See R.R. Street Co., 81 S.W.3d at 304. However, there are no jury findings on this essential element on which appellees had the burden of proof to support their specific performance claim.
Appellees argue the jury finding could be deemed under rule 279. See Tex. R. Civ. P. 279. We disagree. If no element of an independent cause of action is included in the charge without request or objection, the cause of action is waived. Tex. R. Civ. P. 279. The party seeking recovery under an issue has the burden of requesting a jury question on that issue. See Champion Builders v. City of Terrell Hills, 70 S.W.3d 221, 228 (Tex. App.-San Antonio 2001, pet. granted). However, if at least one element of appellees' cause of action was submitted to the jury and is "necessarily referable" to that cause of action, an omitted finding that is supported by some evidence may be deemed found by the trial court. Tex. R. Civ. P. 279; Ramos v. Frito-Lay, Inc., 784 S.W.2d 667, 668 (Tex. 1990). An element "necessarily referable" to a ground of recovery is one necessary to sustain such grounds, that is, one of the essential elements. Tex. R. Civ. P. 279; Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 (Tex. 1997); Gold Kist, Inc. v. Carr, 886 S.W.2d 425, 431 (Tex. App.-Eastland 1994, writ denied).
Neither Lawler nor appellees objected to the trial court's failure to submit an issue on whether appellees were ready, willing, and able to perform the contract in the charge to the jury. In their motion for rehearing, appellees specifically contend that because the question of Diguiseppe's contractual compliance was submitted to the jury, an element "necessarily referable" to appellees' claim for specific performance was submitted to the jury. We disagree. Appellees' compliance with the contract was not essential to their pursuit of specific performance. As discussed above, Diguiseppe's performance could have been excused. Therefore, regardless of whether Diguiseppe complied with the terms of the contract, the appellees were nonetheless required to prove they were ready, willing, and able to perform. See 17090 Parkway, Ltd., 80 S.W.3d at 256.
Further, Lawler's suit against Diguiseppe alleged breach of contract. The question submitted to the jury regarding appellees' contractual compliance asked, "Did Diguiseppe fail to comply with the contract?" The "necessarily referable" requirement is designed to give parties fair notice of, and an opportunity to object to, a partial submission. Superior Trucks, Inc. v. Allen, 664 S.W.2d 136, 144 (Tex. App.-Houston [1st Dist.] 1983, writ ref'd n.r.e.). "Once a party is on notice of the independent ground of recovery or defense due to the existence of an issue `necessarily referable' thereto, if that party fails to object or request submission of the missing issues, he cannot be heard to complain on appeal, as he is said to have consented to the court's findings on the missing issues." Id. The question regarding whether Diguiseppe failed to comply with the contract squarely addressed Lawler's cause of action against Diguiseppe. The existence of that question, standing alone, did not place Lawler on notice of a separate independent ground of recovery such that he would be required to object to the omission of a jury question addressing specific performance. Likewise, the question of whether Lawler failed to comply with the contract addressed Frisco's counterclaim alleging breach of contract for which Frisco sought "damages in an amount no less than the jurisdictional limitation of this Court." The existence of that question, standing alone, did not place Lawler on notice of a separate independent ground of recovery such that he would be required to object to the omission of the essential element of ready, willing, and able to perform under specific performance.
In their motion for rehearing, appellees also argue they are entitled to specific performance because that remedy is provided for in the contract itself, arguing that a party may contractually specify what remedies will be available to address a breach. We agree parties may contractually limit their remedies, but we do not conclude that doing so automatically negates a party's burden to meet the requirements for that remedy. The language at issue in the present contract provides a party the right to " seek to enforce specific performance" whereas the language in the case appellees cite in support of their argument provides the right to "enforce specific performance." See Limestone Group Inc. v. Sai Thong, L.L.C., 107 S.W.3d 793, 797 (Tex. App.-Amarillo 2003, no pet.). Distinguishing a right to seek a remedy from a right of a remedy, we disagree the language in the present contract absolves appellees of the responsibility of proving they were ready, willing, and able to perform under the contract.
We conclude that the submission to the jury of the issue of whether Diguiseppe complied with the contract was not an element "necessarily referable" to appellees' specific performance claim. Further, the mere existence of either breach of contract question submitted to the jury did not place Lawler on sufficient notice to require him to object to the omission of a jury question regarding whether appellees were ready, willing, and able to perform the contract. The essential element of whether appellees were ready, willing, and able to perform under the contract was disputed at trial and not conclusively established. Also, no element of appellees' cause of action that was necessarily referable to appellees' claim of specific performance was submitted to the jury. Accordingly, the finding could not be deemed under rule 279. With no deemed finding and in the absence of a jury finding on the essential element of ready, willing, and able, we conclude appellees were not entitled to specific performance. We hold the court erred by ordering specific performance, and we resolve Lawler's third issue in his favor. We reverse the final judgment awarding specific performance to appellees.
Attorney's Fees/Registry Deposit
Lawler was the original plaintiff in this case seeking a declaratory judgment that the contract had terminated due to appellees' default. On appeal, Lawler references a complaint of the court's award of attorney's fees to appellees, but he offers no argument or authority to support his complaint the fees were awarded in error. He has, therefore, waived this issue on appeal. See Tex. R. App. Proc. 38.1(h).
Regardless, had Lawler not waived this issue, he would not be entitled to relief absent showing an abuse of discretion. In his original petition, Lawler sought declaratory relief. The Declaratory Judgments Act provides that in any proceeding under the Act "the court may award costs and reasonable and necessary attorney's fees as are equitable and just." Tex. Civ. Prac. Rem. Code Ann. § 37.009 (Vernon 1997). The Act does not require an award of attorney's fees to the prevailing party, and it entrusts attorney fee awards to the trial court's sound discretion, so long as the fees are reasonable, necessary, equitable, and just. Bocquet v. Herring, 972 S.W.2d 19, 20-21 (Tex. 1998). Accordingly, Lawler would be required to show the trial court ruled arbitrarily, unreasonably, or without regard to guiding legal principles. See id. at 21. Lawler has not shown the court abused its discretion. We affirm the award of attorney's fees.
The title company had interpleaded into the registry of the court an earnest money deposit of $100,000. In its judgment the trial court ordered that upon final judgment on appeal reversing the trial court's granting specific performance of the contract and reversing the award of attorneys' fees to appellees, the deposit in the registry of the court shall be released to Lawler. Because we have reversed the trial court's judgment awarding specific performance but have affirmed the award of attorneys' fees to appellees, the conditions of this award to Lawler have not been met. However, no party has addressed this issue on appeal. In the interest of justice, we vacate the trial court's judgment as it relates to the $100,000 deposit in the registry of the court and remand that issue to the trial court for further proceedings. See Westgate Ltd. v. State, 843 S.W.2d 448, 455 (Tex. 1992) ("We do not think it is `in the interest of justice' to decide a legal question that has been neither briefed nor argued by the parties. . . .").
Reinstatement of Monetary Damages/Legal Sufficiency
In appellees' first cross point, they request that if we reverse the award of specific performance, we enter a judgment for appellees "for the damages awarded by the jury . . . in addition to their attorneys' fees" as well as an additional $200,000 for the earnest money paid to Lawler. However, in Lawler's second issue, he contends the evidence was legally and factually insufficient to support the monetary damages awarded by the jury.
Appellees have waived their cross point. First, regarding the additional $200,000 appellees seek in addition to the damages awarded by the jury, we note that appellees failed to file a notice of appeal. "A party who seeks to alter the trial court's judgment or other appealable order must file a notice of appeal." Tex.R.App.P. 25.1(c); SAVA Gumarska in Kemijska Industria D.D. v. Advanced Polymer Scis., Inc., 128 S.W.3d 304, 318 (Tex. App.-Dallas 2004, no pet.); Helton v. R.R. Comm'n of Tex., 126 S.W.3d 111, 119-20 (Tex. App.-Houston [1st Dist.] 2003, pet. denied). Because they filed no notice of appeal, appellees waived any complaint regarding their request for an additional $200,000.
On rehearing, in their second issue appellees contend a notice of appeal was not required to raise their first cross point regarding reinstatement of the jury damage award. Assuming without deciding appellees need not have filed a notice of appeal regarding reinstatement of the jury award, disposition of Lawler's second issue disposes of appellees' first cross-point. In Lawler's second issue, he argues the evidence was legally insufficient to support an award of damages to Digiuseppe. We agree.
We apply the established tests for legal sufficiency challenges. See Tex. Farmers Ins. Co. v. Cameron, 24 S.W.3d 386, 392 (Tex. App.-Dallas 2000, pet. denied). The undisputed testimony of Digiuseppe established that the expenses for rezoning the property amounted to the $295,696.93-the same amount awarded by the jury. The testimony also established that appellees advanced none of the funds for these expenses or were liable for their payment. Accordingly, there was no evidence that appellees suffered these damages; therefore, there was no evidence to support the award of damages to appellees. We sustain Lawler's second issue as it relates to legal sufficiency of the evidence to support the jury's award of damages. We overrule appellees' first cross point.
Request for Remand
In their second cross point, appellees request we remand the case to allow them to produce additional evidence in response to Lawler's evidentiary points. Appellees cite only rule 38.2(b)(2) in support of their argument. See Tex.R.App.P. 38.2(b)(2). However, the rule addresses when a cross-point requires the taking of additional evidence-not when a party failed to produce sufficient evidence at trial. Appellees provide no additional argument or authority that would suggest otherwise. We overrule appellees' second cross-point.
Conclusion
Our reversal of the award of specific performance is dispositive of this appeal. Because we do not render judgment for monetary damages, and the evidence is legally insufficient to support the award for monetary damages, as discussed above, we need not address Lawler's remaining point of error that complains of the court's construction of the contract.
We reverse the trial court's judgment regarding the award of specific performance. We remand to the trial court to determine only the disposition of the $100,000 deposit in the court's registry. We affirm the trial court's judgment in all other respects.