Opinion
NO. 01-16-00191-CV
07-11-2017
THOMAS LANNY VLASAK AS TRUSTEE FOR THE SILBER FAMILY TRUST, Appellant v. TAXCO, INC., Appellee
On Appeal from the 11th District Court Harris County, Texas
Trial Court Case No. 2014-49207
MEMORANDUM OPINION
The Silber Family Trust sought to purchase a tear-down house from Taxco, Inc. and, when the sale failed to close, sued Taxco for specific performance. A bench trial resulted in a take-nothing judgment. The trial court held that the sale agreement had expired on the closing date listed in the sale agreement and that, because Taxco had not breached the agreement, the Trust was not entitled to specific performance.
The Trust appeals the judgment, contending that the evidence is legally and factually insufficient. The Trust argues that the contract did not expire on the specified closing date, Taxco continued to have a contractual obligation to complete the sale, and Taxco breached the agreement by refusing to close two months after the specified closing date.
We affirm.
Background
Taxco owned a residential property in Houston, Texas that both parties have referred to as a "tear-down." The Trust had purchased several other tear-downs in the same neighborhood and was interested in purchasing this property, which the Trust's trustee, Thomas Vlasak, described as "derelict" but in a good location. The Trust intended to remove the existing structure, construct a new home, and "flip" it once the new home was ready for sale.
The Trust and Taxco entered into a standard form residential earnest money contract on December 3, 2013 for a purchase price of $200,000 with a payment of earnest money. The contract specified that the closing would occur later that month, on or before December 29.
The earnest money contract provided that the seller, Taxco, was obligated to provide, at the buyer's expense, a title commitment "subject to promulgated exclusions" within 20 days. Other than standard objections, the buyer was required to object to any listed exceptions, but the portion of the form specifying the date for such objections was not completed. If the buyer failed to timely object, it waived its rights, except for the requirements in Schedule C. If the buyer did object, the seller was obligated to cure the timely objection. If the seller failed to do so, the contract would terminate unless the buyer waived the objections. Finally, the contract stated that at the closing the seller and buyer would "execute and deliver any . . . documents reasonably required for . . . the issuance of the Title Policy."
The Trust had used Chicago Title Co. as a title insurer in other real estate transactions and selected it to issue a title insurance policy on this property. On December 23, Chicago Title issued to the Trust a title commitment, which stated that Chicago Title would issue a title policy "upon compliance with the requirements in Schedule B and Schedule C." Schedule B listed exceptions from coverage, such as outstanding taxes, homestead rights, easements, and set back requirements. Schedule C listed other items that would not be covered under the policy unless the Trust managed to adequately "dispose of these matters to our satisfaction before the Policy is issued."
Schedule C included four City of Houston notices of public hearing and four orders from the City's Department of Public Works and Engineering. These notices and orders related to violations of the City's ordinances and to the City's earlier findings that the property was "dilapidated, substandard, or unfit for human habitation," "constitute[d] a hazard to the health, safety or welfare of its occupants and/or the citizens," and a public nuisance. The notices provided that the house could not be remodeled or torn down without the City's approval. These notices were not liens on the property and did not demand any payment.
Chicago Title's cover letter to the title commitment highlighted the City-notice issue and informed the parties that Chicago Title would "need a review" of the items listed in Schedule C before closing and would "also need to secure their release." While neither the cover letter nor the title commitment stated whether the burden to obtain the releases was on the buyer or the seller, the contract provided that the seller, Taxco, was obligated to provide a title commitment "subject to promulgated exclusions."
The parties received the title commitment discussing the City-notice issue six days before the specified closing date.
With the City-notice issues still unresolved, the Trust signed the closing documents before the specified closing date and paid the purchase price to the title company to hold in escrow. There is no evidence that Taxco was told that the Trust had tendered the purchase price or signed the closing documents.
Taxco, on its end, contacted the City of Houston to address its notices. According to Taxco's president, Patrick Walker, the City told Taxco that it did not provide releases for its notices. Based on that information, Taxco informed the title company in mid-December that releases could not be obtained.
The trial court found this testimony credible concluding in its fact findings, "Taxco could not obtain releases from the City of Houston because there was allegedly no such releases available." Because Taxco was not going to either remodel or tear down the buildings, it is unclear what a release would state or how Taxco could obtain one.
On December 23, Chicago Title's vice president, Marc Archuleta, emailed the parties that the title company "still need[ed] some items" from Taxco, referring to releases from the City. Taxco responded by again telling the title company that it could not obtain releases from the City.
Though the testimony is unclear, it appears these communications from Taxco to the title company were oral, not by email.
There is no evidence that Chicago Title contacted Taxco between December 23 and December 29 to schedule Taxco's execution of the documents needed for closing or to inform Taxco that the City-release issue was resolved or waived.
December 29 passed without a closing.
On January 9, 2014—11 days after the specified closing date—the Trust emailed Taxco to alert it that Chicago Title would be sending a list of "items needed to close," including the City-notice issue. That same day, Archuleta forwarded copies of the City's notices to both parties for their "reference and to assist in satisfying this matter." There is no documentary evidence that Chicago Title had any further contact with the parties in January.
Archuleta testified that, even though Chicago Title had requested the parties' assistance in satisfying the City-notice issue, Chicago Title, itself, obtained the City's releases in January, which allowed the closing could go forward. Archuleta did not bring copies of those releases to trial. After this testimony, the trial court granted a continuance that allowed Archuleta to retrieve records from his office. Even after the continuance, he failed to provide documentary evidence that the releases had been obtained.
There is no documentary evidence that Chicago Title ever provided the parties with copies of the releases. Nor is there evidence that Chicago Title informed Taxco that it had obtained the releases. And Archuleta did not recall ever asking Taxco to execute the closing documents.
The next month, on February 14, 2014, the Trust emailed Taxco to ask when Taxco would be ready to close. Taxco responded on February 20 that "it does not appear this transaction is going to close," explaining that Chicago Title had "agreed to check and get back with [Taxco]" about the City's notices but never did. Taxco wrote that it had never received "any notice that this requirement had been waived." According to Taxco, it "assumed the deal had fallen apart" because it was not contacted by the Trust or Chicago Title for over a month following the January 9 email. Taxco concluded by stating that it had assumed that the contract had been terminated because Chicago Title was requiring releases that could not be obtained. Taxco agreed to the return of the Trust's earnest money.
There is evidence Taxco received other offers for the property during the January to February 2013 time period.
The trial witnesses provided additional context to these emails through their testimony. Vlasak testified that the Trust had fully complied with its contractual obligations before the December 29 closing date. Yet he did not testify that the Trust ever informed Chicago Title or Taxco that it would waive the exceptions in the title policy for the City notices.
Archuleta agreed that the Trust closed its portion of the transaction before the closing date. Regarding the City-notice issue, he testified that Taxco did not resolve the issue or request a waiver of the Schedule C exceptions. Instead, Chicago Title resolved the issue itself in January 2014 when it obtained the releases from the city directly. According to Archuleta, because Chicago Title resolved the city-notice issue, all that was left for Taxco to do was show up for the closing. Based on Archuleta's testimony, the Trust argued that Taxco's failure to appear for closing breached the contract. But the evidence was inconsistent on whether anyone ever informed Taxco that the City-notice issue had been resolved or that closing could move forward.
Archuleta testified that the releases were in his file, but the Trust did not seek to admit them into evidence. For its part, Taxco indicated that it had never seen the releases.
Archuleta testified inconsistently on these issues. Several times he indicated that Chicago Title had conveyed this information to Taxco, but he could not point to any documentary evidence supporting his assertions. At other points, though, he stated that he could not recall whether Chicago Title told Taxco that the City-notice issue had been resolved or that Taxco could close. The trial court discussed with the parties the inconsistency in Archuleta's testimony and the absence of any documents to resolve the issue, noting that the internal inconsistencies in Archuleta's testimony presented a credibility issue.
The trial court allowed Archuleta to return to his office, review his file for correspondence addressing the issue, and testify another day. Archuleta testified a couple days later that his files did not contain any documentation of a communication between Chicago Title and Taxco informing Taxco either that the City-notice issue had been resolved or that Taxco could close the transaction.
Archuleta was not asked whether he found copies of the city's releases.
Following the bench trial, the trial court entered a final judgment that the Trust take nothing. The trial court made various findings of fact and conclusions of law in support of its judgment. These were partly based on its determination that Archuleta's testimony was not credible when he testified that Chicago Title had told Taxco that it could close.
In its findings of fact and conclusions of law, the trial court determined that Chicago Title had taken the position that Taxco could not close until the City's notices were released, Chicago Title never told Taxco that it was waiving that requirement or that the requirement had been met, Chicago Title never contacted Taxco to schedule a closing date, the sale agreement "expired" on the closing date stated in the agreement (December 29), Taxco did not breach the agreement before the termination date, and the Trust was not entitled to specific performance of the contract. The Trust appeals.
Specific Performance
In a single issue, the Trust argues that the trial court erred by not ordering specific performance of the real estate sales contract. It challenges the legal and factual sufficiency of the evidence supporting the trial court's judgment.
A. Applicable law and standard of review
Specific performance is an equitable remedy for breach of contract. Luccia v. Ross, 274 S.W.3d 140, 146 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). The essential elements of a claim for breach of contract are (1) the existence of a valid contract, (2) performance or tendered performance by the plaintiff, (3) breach of the contract by the defendant, and (4) damages sustained by the plaintiff as a result of the breach. Id. A party seeking specific performance must demonstrate that he was ready, willing, and able to timely perform the contract. DiGiuseppe v. Lawler, 269 S.W.3d 588, 594 (Tex. 2008); see Luccia, 274 S.W.3d at 146.
Whether to order specific performance as a remedy for breach of contract (versus a damages award) is within the trial court's discretion. Paciwest, Inc. v. Warner Alan Props., LLC, 266 S.W.3d 559, 571 (Tex. App.—Fort Worth 2008, pet. denied); Stafford v. S. Vanity Magazine, Inc., 231 S.W.3d 530, 535 (Tex. App.—Dallas 2007, pet. denied). Recognizing the trial court's discretion, we will not disturb a trial court's ruling on a claim seeking specific performance unless it is arbitrary, unreasonable, and unsupported by guiding rules and principles. See Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004) (discussing abuse-of-discretion review). If the evidence is sufficient to support a trial court's findings and conclusions, the trial court has not abused its discretion. See Reese v. Duncan, 80 S.W.3d 650, 659 (Tex. App.—Dallas 2002, pet. denied).
In an appeal from a bench trial, a trial court's findings of fact have the same weight as a jury verdict. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Nguyen v. Yovan, 317 S.W.3d 261, 269-70 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). A trial court's findings of fact are not conclusive when, as here, there is a complete reporter's record on appeal. See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).
When the appellant attacks the legal sufficiency of an adverse finding on an issue on which he had the burden of proof, he must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). We examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Id. If there is no evidence to support the finding, we examine the entire record to determine if a contrary proposition is established as a matter of law. Id. The legal-sufficiency challenge is sustained only if the appellant's contrary proposition is conclusively established. Id.
We may not sustain a legal-sufficiency point unless the record demonstrates (1) a complete absence of evidence of a vital fact, (2) that the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) that the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) that the evidence conclusively establishes the opposite of the vital fact. See Choice! Power, L.P. v. Feeley, 501 S.W.3d 199, 208 (Tex. App.—Houston [1st Dist.] 2016, no pet.). We review a trial court's conclusions of law de novo and will uphold them if the judgment can be sustained on any legal theory supported by the evidence. Id. If a trial court's conclusion of law is erroneous but the trial court, nonetheless, rendered the proper judgment, the error does not require reversal. Id.
When the appellant attacks the factual sufficiency of an adverse finding on an issue on which he had the burden of proof, he must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem., 46 S.W.3d at 242; Reliant Energy Servs., Inc. v. Cotton Valley Compression, L.L.C., 336 S.W.3d 764, 782 (Tex. App.—Houston [1st Dist.] 2011, no pet.). We consider and weigh all of the evidence. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Arias v. Brookstone, L.P., 265 S.W.3d 459, 468 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).
In a bench trial, the trial court, as factfinder, is the sole judge of the credibility of witnesses and the weight to be given to their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003); Olanipekun v. Omokaro, No. 01-13-00888-CV. 2-14 WL 5410058, at *3 (Tex. App.—Houston [1st Dist.] Oct. 23, 2014, no pet.) (mem. op.). The trial court may take into consideration all the facts and the surrounding circumstances in evaluating the witnesses' testimony and may accept or reject all or any part of any witness's testimony. Munters Corp. v. Swissco-Young Indus., Inc., 100 S.W.3d 292, 296-97 (Tex. App.—Houston [1st Dist.] 2002, pet. dism'd). It may believe one witness and disbelieve others. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). It also may resolve inconsistencies within a single witness's testimony. Id.
An intermediate appellate court is not a factfinder and cannot pass upon a witness's credibility or substitute its judgment for that of the factfinder, even if there is conflicting evidence that would support a different conclusion. Olanipekun, 2014 WL 5410058, at *4; see Cain, 709 S.W.2d at 176.
There is no appellate review from a trial court's decision to find one fact as opposed to another so long as there is some evidence in the record which, if believed, would support the trial court's finding. Id. As long as the evidence at trial "would enable reasonable and fair-minded people to differ in their conclusions," we will not substitute our judgment for that of the factfinder. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).
B. Trial court's factual findings and conclusions of law
The trial court issued findings of fact and conclusions of law in support of its final judgment. The first few factual findings deal with activity leading up to the designated closing date of December 29. These include that Taxco and the Trust entered into a contract for the sale of the residential property, the Trust selected Chicago Title to be the title company, Chicago Title issued a title commitment that included exceptions for City notices, and the title commitment expressed that Chicago Title would need to secure the release of the City's notices and orders. The trial court found that Taxco contacted the City to request releases but was told "there was no such release that could be provided." Taxco told Chicago Title, apparently orally, that the releases "could not and therefore would not be secured as set forth in the commitment."
The trial court made additional findings related to events that occurred after the scheduled closing date. The trial court found that, on January 9, 2014—which was 11 days after the December 29 closing date—the Trust contacted Taxco regarding items still needed for closing, including release of the City's notices. That same day, Chicago Title emailed the parties about the need to resolve the City-notice issue before closing could take place. Taxco responded that releases could not be obtained. Then, on February 15, the Trust contacted Taxco about the status of the closing, which led to Taxco's February 20 response terminating the sale agreement.
The trial court made the following additional findings regarding the failure to inform Taxco about the status of the request for releases or Taxco's ability to close:
• Chicago Title never informed Taxco, Inc. that the demand for City of Houston releases had been waived, satisfied or removed from the closing requirements prior to December 29, 2013.
• No demand was made upon Taxco, Inc. by Plaintiff or Chicago Title prior to December 29, 2013 to appear at a closing and close. Chicago
Title did not offer [Taxco, Inc.] the opportunity to close prior to December 29, 2013.
• The contract expired by its own terms on December 29, 2013. Plaintiff and Chicago Title were unwilling to close prior to obtaining releases from the City of Houston. Although Plaintiff signed the closing document and funded the purchase price prior to the closing date, Chicago Title was not willing to allow Defendant to Close, issue the title policy without conditions and distribute the funds until the releases had been obtained. Plaintiff was unwilling to close without the title policy; therefore Plaintiff was in effect unwilling to close until the Chicago Title closing requirements were fulfilled.
• Defendant did nothing to breach the contract and was willing to close prior to December 29, 2013. Once that date expired, [Taxco, Inc.] was not obligated to go through with the deal.
"Plaintiff," here, refers to the Trust.
The trial court wrote "Plaintiff," but, in context and particularly in light of the following bulleted finding, it is apparent that the trial court intended to write "Defendant" or "Taxco, Inc." The Trust had already fully tendered and closed; only Taxco had not.
Again, in context, the trial court wrote "Plaintiff" but appears to be referring to "Defendant" Taxco instead.
The trial court entered a final judgment in Taxco's favor, ordering that the Trust take nothing.
C. Whether the evidence supports the trial court's conclusion that the contract expired on December 29
The trial court found that the sale contract "expired by its own terms" on the specified closing date of December 29. The Trust argues that the evidence is legally and factually insufficient to support that conclusion because the contract did not provide that time was of the essence and the parties treated the contract as continuing beyond the specified closing date.
1. Timely performance generally is not required
A contract for the sale of real property does not automatically expire on the specified closing date unless timely performance is made a material term of the contract. See Deep Nines, Inc. v. McAfee, Inc., 246 S.W.3d 842, 846 (Tex. App.—Dallas 2008, no pet.). Timely performance is made a material term of a contract, thereby allowing untimely performance to constitute a breach of the contract, if the contract expressly states that time is of the essence or if the contract's nature, purpose, or surrounding circumstances make it apparent that the parties intended time to be of the essence. See id.; Kennedy Ship & Repair, L.P. v. Pham, 210 S.W.3d 11, 19 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (stating that "a date stated for performance does not mean time is of the essence"); Atkin v. Cobb, 663 S.W.2d 48, 52 (Tex. App.—San Antonio 1983, writ dism'd).
Ordinarily, whether time is of the essence is a fact question. Deep Nines, 246 S.W.3d at 846. But when the facts are undisputed, the issue is a question of law. Maroy Int'l, Inc. v. Cantu, No. 04-12-00193-CV, 2013 WL 1149066, at *2 (Tex. App.—San Antonio 2013, pet. denied) (mem. op.).
Timely performance may be waived through "any act that induces the opposite party to believe that exact performance within the time designated in the contract will not be insisted upon." Kennedy Ship & Repair, 210 S.W.3d at 20 (quoting Laredo Hides Co. v. H & H Meat Prods. Co., 513 S.W.2d 210, 218 (Tex. Civ. App.—Corpus Christi 1974, writ ref'd n.r.e.) (emphasis omitted). Whether a party has waived timely performance is generally an issue of fact but can be conclusively established. See Siderius, Inc. v. Wallace Co., 583 S.W.2d 852, 864 (Tex. Civ. App.—Tyler 1979, no writ).
2. The evidence conclusively establishes that timely performance was not required
The sale agreement specified a closing date of December 29, 2013. There were email communications between the parties and Chicago Title up to and after the specified closing date. These emails do not indicate whether Taxco was amenable to extending the closing date beyond December 29; however, the testimony of Taxco's president, Patrick Walker, established that it was. Walker testified that, in addition to the emails admitted into evidence, Taxco orally communicated with Chicago Title. He agreed that these discussions continued into January and, specifically, that Taxco communicated with Chicago Title even after the January 9 email. Walker testified that Taxco was ready, willing, and able to close in December and continued to be ready, willing, and able to close in January, but that Chicago Title never told it that a closing had become possible.
On this evidence, even if the parties originally intended time to be of the essence, Taxco's admission that it was ready and willing to close in January waived strict compliance with the December 29 closing date. See Superior Signs, Inc. v. Am. Sign Servs., Inc., 507 S.W.2d 912, 915 (Tex. Civ. App.—Dallas 1974, no writ) (holding that party waived strict compliance by sending letter granting additional time). Taxco extended the agreement through its conduct. See id.; 17090 Parkway, Ltd. v. McDavid, 80 S.W.3d 252, 255 (Tex. App.—Dallas 2002, pet. denied) (stating that waiver is determined based on course of conduct of parties). Thus, the trial court erred by concluding that the contract "expired" on the originally selected closing date of December 29 and by further concluding that the expiration of the contract prevented any finding of breach by Taxco at a later date.
We consider next the length of delay after the specified closing date and whether Taxco breached the agreement during that period of extension.
D. Whether Taxco breached the agreement during the period of extension
When time is not of the essence or a party has waived enforcement of a time-of-essence provision, the parties have a reasonable time after a specified closing date to complete their transaction. See Shuler v. Gordin, 644 S.W.2d 446, 448 (Tex. 1982); Moore v. Dilworth, 179 S.W.2d 940, 942 (Tex. 1944). "What is a reasonable time depends undoubtedly upon the nature and character of the thing to be done, the circumstances of the particular case, and the difficulties surrounding and attending its accomplishment." Cosgrove v. Cade, 468 S.W.3d 32, 46 (Tex. 2015) (quoting Hart v. Bullion, 48 Tex. 278, 289 (1877)). "What is a reasonable time is relative, but it 'never means an indulgence in unnecessary delay; instead it denotes such promptitude as the circumstances will allow for the action called for by the contract.'" Chen v. Parkwood Creek Owner's Ass'n, Inc., No. 05-10-01511-CV, 2012 WL 3759032, at *3 n.4 (Tex. App.—Dallas Aug. 30, 2012, no pet.) (mem. op.) (quoting Heritage Res., Inc. v. Anschutz Corp., 689 S.W.2d 952, 955 (Tex. App.—El Paso 1985, writ ref'd n.r.e.)).
Ordinarily, what constitutes a reasonable time is a question of fact to be determined from the circumstances. Carroll v. Wied, 572 S.W.2d 93, 97 (Tex. Civ. App.—Corpus Christi 1978, no writ) (citing Hall v. Hall, 308 S.W.2d 12 (Tex. 1957)). If the facts are undisputed, though, the issue of what is a reasonable time for performance is a question of law. Id.
The trial court found that Taxco was informed that there were obstacles to closing the transaction—namely, that the title company was requiring releases for the City's notices and orders. It found that Taxco contacted the City about the notices, the City told Taxco that it would not grant releases, and Taxco conveyed that information back to Chicago Title. According to the trial court's findings, which were based on its credibility determinations, Chicago Title never told Taxco that the requirement that the City's notices be released was waived or satisfied.
More than a month passed with no communication to Taxco by the Trust or the Chicago Title regarding the status of the matter, no statement that the issue had been satisfactorily resolved or waived, and no request to Taxco to appear for a closing. While the Trust may have been ready, willing, and able to perform, no one told Taxco. And as a result, during that month, Taxco waited: it did not demand to close or refuse to do so.
Archuleta testified that Taxco could have closed during that time, but his testimony was inconsistent. Archuleta was given an opportunity to retrieve documentary evidence to support the Trust's assertion that Taxco could have closed in January or February 2014, but he reported that he found none. The trial court made a credibility determination and found that Chicago Title never told Taxco that it could close "because, frankly, [Chicago Title wasn't] ready to close until they had these other issues resolved" to its satisfaction, which had not occurred at least through January 9. On this evidence, the trial court found that Chicago Title delayed the closing and that Taxco had not breached the agreement.
The evidence is legally and factually sufficient to support the trial court's determination that Taxco did not breach the agreement. The commitment letter and Chicago Title's cover letter to it both indicated that releases of the City's notices would be required before the transaction could close. Communications before December 29 consistently indicated that Chicago Title was requiring releases to close the transaction. There is no evidence that Chicago Title emailed Taxco between December 29 and February 20, except for a single email on January 9 that reaffirmed that releases would be required. Thus, almost two months passed after the intended closing date without any communication to Taxco that it could close. To the extent Archuleta's testimony indicated that Taxco could have closed, the trial court found his testimony not credible and we defer to that finding. Golden Eagle Archery, 116 S.W.3d at 761 (stating that trial court, as factfinder, is sole judge of credibility).
Affording deference to the trial court's credibility determination, the evidence establishes that the parties initially allotted a short period of time to close the transaction (26 days), attempted to close even sooner, but extended the time through subsequent communications. An additional 53 days passed without Chicago Title—a title company with a history of working with the Trust and selected by the Trust to issue title insurance on this deal—communicating to Taxco that the City-notice requirement was met or waived.
Absent evidence of any communications to Taxco that Chicago Title was attempting to resolve the City-notice issue, that the parties were working towards resolving the issue, or that it was possible to schedule a new closing date, we conclude, as a matter of law, that a delay that drew out the closing more than three times as long as originally contemplated to close this sale of a tear-down home in a tear-down neighborhood with other buyers available and without any impediments to closing, was not reasonable. Cf. Miller v. Carter, No. 05-11-00193-CV, 2012 WL 3679200, at *6 n.5 (Tex. App.—Dallas Aug. 28, 2012, pet. denied) (mem. op.) ("Failing to complete a project that was supposed to require 7-10 working days in four months does not constitute performance within a reasonable time."); English v. Underwood, 5 S.W.2d 1033, 1036 (Tex. App.—El Paso 1928, writ dism'd w.o.j.) (concluding that 20-day delay was unreasonable given that party only had to sign note and pay draft to fulfill contractual obligations).
There were no impediments because the Trust, as the buyer, demonstrated that it was willing to close with the listed exceptions still in the title policy. The Trust planned to demolish the house, and building permits would be required for any new construction regardless of the earlier notices. Perhaps more importantly, Chicago Title claimed to have resolved the City-notice issue to its satisfaction, although it never told the seller that the impediment was lifted.
Because more than a reasonable time had passed before Taxco indicated that it was terminating the contract, Taxco did not breach the agreement.
E. Whether the trial court erred by denying specific performance
Breach is a necessary element of a breach-of-contract claim. Luccia, 274 S.W.3d at 146. Without a breach, the remedy of specific performance is not available. Luccia, 274 S.W.3d at 146. The Trust failed to establish that Taxco breached the contract to permit the remedy of specific performance. The trial court did not abuse its discretion by denying such relief.
We overrule the Trust's single issue.
Conclusion
We affirm the trial court's judgment.
Harvey Brown
Justice Panel consists of Chief Justice Radack and Justices Brown and Lloyd.