Dissent by Justice Green in
DiGiuseppe v. Lawler, No. 04-0641(Tex. Oct. 17, 2008)(specific performance)
NICK DIGIUSEPPE D/B/A SOUTHBROOK DEVELOPMENT CO. AND FRISCO MASTER PLAN v. ROGER LAWLER; from
Collin County; 5th district (05-03-00468-CV, ___ SW3d ___, 06-03-04)
The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the trial court.
Justice Alan Waldrop delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and
Justice Willett joined.
Justice Green delivered a dissenting opinion, in which Chief Justice Jefferson, Justice O'Neill, and Justice Johnson joined.
(Justice Waldrop sitting by commission pursuant to Section 22.005 of the Texas Government Code)
(Justice Medina not sitting)
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Green Dissent by Green in Digiuseppe v. Lawler (Tex. 2008)
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Argued October 20, 2005
Justice Green, joined by Chief Justice Jefferson, Justice O’Neill, and Justice Johnson, dissenting.
The Court requires an innocent buyer, otherwise excused from his contractual obligations by the
seller’s breach, to nevertheless prove, in a suit for specific performance, that he could have fully
performed those obligations had the seller not breached. ___ S.W.3d at ___. This makes no
sense for at least two reasons. First, it provides the breaching seller information he was not
entitled to under the contract. A seller entering into a real estate transaction is rarely entitled to
know the details of how the buyer intends to finance the transaction. At closing, the buyer will either
perform or not, and in the latter event, the contract will provide remedies for the breach. But if the
seller breaches the contract before closing and the buyer sues to enforce the deal, the Court now
says the buyer must prove to a fact-finder, at a trial many months or years after the sale was
originally supposed to close, that he was, at the time specified by the contract, “ready, willing, and
able” to perform. Id. at ___. To do this, the innocent buyer will necessarily be required to reveal his
plan for financing the transaction—information a seller generally would not be privy to under
agreed contract terms.
Second, and perhaps most important, the Court’s holding makes no sense because a finding
that the buyer was ready, willing, and able to perform at the closing time specified in the contract is
irrelevant. Although the Court does not say what the trial court is supposed to do with such a
finding, presumably it would order a date for the transaction to close within a reasonable time. But
what if the buyer was able to close on the original contract date and is unable to close on the court-
appointed date? The whole exercise is rendered meaningless. The only thing that makes sense is
to do precisely what the trial court did in this case, which is to set a closing date within a
reasonable time after a finding that the seller breached. While it is true that the buyer might gain
some benefit by getting a reprieve from the original contract closing date, it is just as likely,
particularly in light of today’s troubled financial times, that he will be worse off and be unable to
close. But at least this has the virtue of being meaningful and of not placing impractical burdens on
an innocent party, both features that are lacking in the Court’s rule.
The Court’s holding will also tend to severely limit or eliminate specific performance as a viable
remedy for a seller’s breach of a real estate contract. In large transactions, it is doubtful that many
non-breaching buyers would be willing to subject themselves and/or their investors to open
discovery of financial portfolios on the question of whether the buyer was sufficiently capable of
purchasing the property at the time required by the contract. Unscrupulous sellers will be virtually
immunized from the penalty of specific performance, the most severe consequence of breaching a
contract of sale, and disorder will be the order of the day in volatile real estate markets. Because
the Court’s holding lacks common sense and adheres to a misreading of our precedents, I
respectfully dissent.[1]
I agree with the Court that it has long been part of the jurisprudence of this state that, to obtain the
equitable remedy of specific performance, a party must show himself to have been “ready, willing,
and able” to timely perform his obligations under the contract being enforced. See ___ S.W.3d at
___; see also Ratcliffe v. Mahres, 122 S.W.2d 718, 721–22 (Tex. Civ. App.—El Paso 1938, writ
ref’d) (quoting 4 John Norton Pomeroy, Jr., A Treatise on Equity Jurisprudence § 1408, at 2779
(3d ed. 1905)). But it has likewise been a long-standing Texas rule that a non-breaching plaintiff
seeking specific performance need only make such a showing by offering to perform in his
pleadings. Burford v. Pounders, 199 S.W.2d 141, 144 (Tex. 1947). The Court’s insistence that a
party seek and obtain a jury finding that he is ready, willing, and able to perform before being
entitled to the remedy departs from that rule.
Specific performance is an equitable remedy that rests in the sound discretion of the trial court.
Kress v. Soules, 261 S.W.2d 703, 704 (Tex. 1953); Am. Apparel Prods., Inc. v. Brabs, Inc., 880 S.
W.2d 267, 269 (Tex. App.—Houston [14th Dist.] 1994, no writ). Generally, to be entitled to specific
performance, a party must prove that it has complied with all the contract’s terms. Glass v.
Anderson, 596 S.W.2d 507, 513 (Tex. 1980). When a seller breaches a real estate contract,
however, we have long held that the buyer need not actually tender the purchase price in order to
seek specific performance. Ward v. Worsham, 14 S.W. 453, 453 (Tex. 1890).
The practice in equity in similar cases is not to require a tender or a payment into court of the
purchase money. . . . When [the buyer] pleads his right he should offer to pay, and the court, if
judgment should be given for him, should decree a payment within a reasonable time, and that, in
default of a compliance, his right should cease and be determined.
Id. This has remained the law in Texas for well over 100 years, as the Court recognizes. See ___
S.W.3d at ___. Until today, however, the Court has not required a non-breaching buyer to make
the “useless and idle” showing of proof of ability to complete the transaction when the seller’s
repudiation of the contract excused the buyer from tendering the purchase price. See Burford, 199
S.W.2d at 145.
The issue of a party’s own performance as a condition to obtaining specific performance is a
matter to be contemplated by the trial court’s judgment, not the jury’s verdict. See Regester v.
Lang, 49 S.W.2d 715, 716–17 (Tex. Comm’n App. 1932, holding approved) (holding it was
reversible error for a defendant to argue to the jury that the plaintiff had not paid the purchase
money into the court registry, and that specific performance might result in the defendant delivering
his property without being paid). “It is sufficient if [the party seeking specific performance] is ready
and willing and offers to perform in his pleadings.” Id. at 717. To require anything more would be
futile because, as this Court recognized in Regester, the buyer “would be required under a proper
decree of specific performance to pay this sum before he could obtain any interest” in the property.
Id.
We reiterated these principles in Burford v. Pounders, instructing that when a seller has refused
to perform and the buyer’s tender would be futile, “the material consideration is that [the buyer]
offered in his pleadings to do equity,” and nothing more is required. 199 S.W.2d at 145. The
plaintiff Burford was a tenant in possession with an option to buy under a right of first refusal. Id. at
141–42. The lessor, ignoring Burford’s option, conveyed the property to defendant Pounders. Id. at
142. Two months after the sale, Burford attempted to exercise his option, eventually seeking
specific performance. Id. at 142–43. Burford would not have been able to make payment at the
time of the sale to Pounders, but would have been able to pay two months later. Id. at 143–44.
Because Burford had to exercise the option to buy within a “reasonable time,” the issue in the case
was whether Burford was required to tender performance within a reasonable time of learning of
the sale to Pounders, or whether it was sufficient for Burford to later offer to perform in his
pleadings. Id. at 144–45. Citing Regester, we again emphasized that all that was necessary in
such a case is that the party seeking specific performance be ready and willing and offers to
perform in his pleadings. Id. at 144 (citing Regester, 49 S.W.2d at 717). And when a party offers in
his pleadings to do equity, “[t]he only matter remaining to be done by the trial court is to direct that
payment be made” and that the sale be completed, awarding the purchaser judgment for title. Id. at
145 (emphasis added).
One statement in Burford, however, appears to have given rise to the confusion of the lower
courts on this issue. Quoting from Corpus Juris, the Court in Burford stated that a “complainant
ordinarily is entitled to specific performance where he alleges and proves that he . . . is ready,
able, and willing to perform.” Id. at 144 (quoting 58 C.J. Specific Performance § 316 (1932))
(emphasis added). After citing that general rule, though, the Court went on to explain the exception
that excuses tender for non-breaching buyers, citing additional Corpus Juris sections and
comments:
[Regarding a specific performance suit brought by a purchaser, under a footnote to section 342], it
is stated that “In Texas” an actual tender “is not necessary where the purchaser pleads and proves
a willingness to pay, but is entitled to relief provided that, within a time fixed in the decree, he shall
pay the amount due” . . . . In section 348 it is stated that “whatever difference of opinion may exist
as to the original necessity of a tender of the consideration before suit, . . . it appears to be quite
well settled that a formal tender is excused where a tender would be useless and idle ceremony”;
and that a “tender is also excused where defendant repudiates the contract”; and further that
“tender in pleadings (is) sufficient” where plaintiff sets forth that he is ready, able and willing “or . . .
pays the consideration into the court.” In section 349, . . . it is stated that “the necessity of tender is
dispensed with where defendant repudiates the contract, or makes any declaration which amounts
to a repudiation . . . . In the following section (350) it is stated that “if a tender of the purchase price
or other sums before suit is necessary, it is excused where the vendor or seller has put it out of his
power to perform, as where he has conveyed the property . . . to a third person.”
Id. at 144–45 (emphasis removed). The Court never returned to any discussion of the general rule
that requires proof of ability to pay, instead holding that the seller defaulted and repudiated by
selling the property to Pounders. Id. at 145. For a non-breaching buyer, “[t]he material
consideration is that [he] offer[s] in his pleadings to do equity.” Id. The court emphasized this rule
with italics: “[A]ll that is required in such case is that the plaintiff place himself in favor with the
court, and this may be done by a proper offer in the pleadings.” Id. at 143 (quoting 49 Am. Jur.
Specific Performance § 144, at 167 (1943)) (italics in original). Because Burford had made the
sufficient showing by offering in his pleadings to do equity, the Court held that Burford was entitled
to specific performance. Id. at 145. The Court later confirmed that holding, saying that Burford
adopted the substance of the rule that “if, because of defects in the vendor’s title, which he fails or
refuses to cure, . . . a tender of performance by the vendee would be a useless act . . . , his failure
to make such tender will not preclude in his behalf the equitable relief of specific performance, at
least where he tenders performance in his bill or petition.” McMillan v. Smith, 363 S.W.2d 437,
442–43 (Tex. 1962) (quoting 79 A.L.R. 1240).
Although the Court claims Burford holds that a non-breaching plaintiff is required to prove he was
ready, willing, and able to perform, and somehow distinguishes between tender and proof of ability
to pay, the Court misrepresents the rule in that case. In Burford, the Court held that when a seller
repudiates the contract, tender is excused and “all that is required” is that the plaintiff offer to do
equity, which can be done in the pleadings. 199 S.W.2d at 143. Burford does not support the
Court’s new rule, and neither do the other cases relied on by the Court.
The Court cites Corzelius v. Oliver, another case involving the buyer’s ability to pay within a
contractual time limit for exercising an option. 220 S.W.2d 632, 633 (Tex. 1949). In Corzelius, the
plaintiff had a one-year option to reacquire lands conveyed to his ex-wife as part of a divorce
settlement. Id. Although the plaintiff attempted to exercise the option, his ex-wife (the defendant)
refused because she objected to his source of financing, and eventually a jury found for the plaintiff.
Id. at 633–34. At trial, one of the issues before the jury was whether the plaintiff could have made
payment within the one-year time limit contemplated by the contract. Id. at 634. The jury found that,
but for the defendant’s actions, such a payment could have been timely made. Id. On appeal, the
only issue was the defendant’s contention that “there was no evidence to show that Corzelius was
ready and able to perform within the time limit of the option.” Id. In addressing that point, the Court
noted that “it would appear but reasonable” for Corzelius to show that he could have performed
under the agreement, id. at 635, and then detailed the evidence to conclude that there was at least
some evidence to support the jury’s finding in that regard. Id. Certainly, taken alone, this part of
Corzelius could arguably support an interpretation that proof of the ability to pay is an appropriate
subject for a fact-finder’s consideration in a specific performance case. But such a reading is not
accurate and has given rise to confusion in the lower courts. Contrary to the Court’s conclusion,
see ___ S.W.3d at ___, nowhere does Corzelius indicate that a non-breaching buyer, under a non-
option contract, must prove ability to perform at the time specified in the contract when tender of
payment is excused. Corzelius is distinct from the non-option contract case because the timing of
the buyer’s ability to pay was relevant to whether the buyer had exercised his option to purchase
and therefore the seller had an obligation to convey the property. Even when a buyer must show
ability to pay, a buyer need not show a firm financing commitment to be entitled to specific
performance, but need only put on evidence of his financial capacity and creditworthiness.
Corzelius, 220 S.W.2d at 635 (recognizing that financing sources would probably be reluctant to
execute a commitment for financing to complete a sale of lands the owner had decided not to
convey). Notwithstanding the evidence offered at trial and the jury’s finding, “Corzelius [was not]
bound to do more here than make the tender which was contained in his pleadings.” Id.
It appears that misreading of the brief statements in Burford and Corzelius led courts of appeals
to rule erroneously that a plaintiff seeking specific performance must always prove to a fact-finder
that he is ready, willing, and able to perform under the contract. See 17090 Parkway, Ltd. v.
McDavid, 80 S.W.3d 252, 256 (Tex. App.—Dallas 2002, pet. denied); Chessher v. McNabb, 619
S.W.2d 420, 421 (Tex. Civ. App.—Houston [14th Dist.] 1981, no writ); Hendershot v. Amarillo Nat’l
Bank, 476 S.W.2d 919, 920 (Tex. Civ. App.—Amarillo 1972, no writ). Those cases did not offer
any reasoning as to why proof before a fact-finder is necessary even though actual tender is
excused when a seller has breached. On this point, 17090 Parkway simply cites Chessher and
Hendershot. 80 S.W.3d at 256. Chessher cites only Hendershot. 619 S.W.2d at 421. Hendershot
cites only this Court’s decisions in Burford and Corzelius without any analysis and without
recognizing that those cases involved option contracts containing conditions precedent to the
seller’s obligation to convey the property. See 476 S.W.2d at 920. Hendershot’s misreading of
Burford and Corzelius therefore resulted in repeated error in the courts of appeals, which now
repeats itself in this Court, eclipsing the long-standing rule that a party seeking specific
performance need only offer to perform in its pleadings.
Lawler cites a number of cases in support of his position that ability to pay must be proven at
trial, but I am not persuaded that such a rule exists in Texas.[2] As already discussed, the cases
requiring proof of ability to pay at trial are perpetuating Hendershot’s erroneous reading of our
opinions in Burford and Corzelius, which did not distinguish, as the Court does, between an
excused tender requirement and an unexcused requirement to prove ability to pay. The Court
contends that such a distinction is “entirely reasonable,” noting that a party could well offer
performance but not be capable of performing. ___ S.W.3d at ___. But when the seller’s breach
relieved the buyer of his obligation to appear at closing and perform as required under the
contract, it may be impossible for anyone to know whether the buyer could have performed.
Continued efforts to perform such as arranging financing or appearing at the scheduled closing
would be useless, just as the Court recognizes that tendering payment would be. The Court
erroneously concludes that ordering specific performance without requiring the non-breaching
buyer to prove ability to pay at the time required by the contract “grants the plaintiff more than he is
entitled to under the contract.” Id. at ___. In fact, the opposite is true. When a contract provides for
simultaneous performance by both seller and buyer, the seller must give the buyer the full
opportunity to perform as provided by the contract, or face remedies for breach in cutting off that
opportunity. Requiring a buyer to prove that it could have performed at a time when the seller’s
breach eliminated that obligation and when the subject property was under contract for sale to a
third party imposes a much higher burden on the buyer than the contract requires. The seller’s own
breach cannot impose an extra-contractual obligation on the buyer to prove useless financing
commitments. The Court contends that my view would “essentially rewrite the parties’ contract” and
“eliminate the plaintiff’s contractual obligation to be capable of performance at the time the
contract required.” ___ S.W.3d at ___. In fact, it is actually the breaching seller who altered those
contractual obligations when he breached the contract by agreeing to sell the property to a third
party.
The Court relies on contracts treatises as support for its claim that requiring a non-breaching
buyer to prove ability to pay is an entrenched rule in Texas jurisprudence. ___ S.W.3d at ___. The
author of the primary treatise relied on by the Court cites law from various jurisdictions, seemingly
favoring Montana and Connecticut, but the only citation to Texas law is to a case that does not
mention or discuss the showing a plaintiff must make to obtain specific performance. 25 Richard
A. Lord, Williston on Contracts § 67:15, at 236–38) (4th ed. 2002); see Shuler v. Gordin, 644 S.W.
2d 446, 447–49 (Tex. 1982). Edward Yorio’s treatise, which states the general rule that a plaintiff
must show readiness, willingness, and ability to perform, is silent on whether or how a non-
breaching buyer must make that showing. Edward Yorio, Contract Enforcement: Specific
Performance and Injunctions § 6.4, at 145 (1989 & supp. 2004). Yorio acknowledges the Texas
rule in a footnote, however, by quoting a Seventh Court of Appeals case holding that “when the
seller has conspicuously breached the contract, it is only necessary that the purchaser be ready
and willing, and offers to perform within his pleadings.” Id. at n.10 (quoting Abraham Inv. Co. v.
Payne Ranch, Inc., 968 S.W.2d 518, 527 (Tex. App.—Amarillo 1998, pet. denied), which relied on
Burford, and also citing 17090 Parkway). Comment b to section 363 of the Restatement (Second)
of Contracts, which addresses securing performance for an agreed exchange and states that
specific performance may be refused if “performance is not secured to the satisfaction of the
court,” supports the long-standing Texas rule:
The desired security can often be afforded by the terms of the order itself. If performance by the
injured party is already due or will be due simultaneously with the performance of the party in
breach, the order may be made conditional on the injured party’s rendition of his performance. . . .
The question of security does not arise until the time for issuance of an order. At the pleading
stage, a mere allegation by the plaintiff that he is ready and willing to perform is usually sufficient in
a suit for specific performance or an injunction. Actual performance or tender is generally not
required.
Restatement (Second) of Contracts § 363 cmt. b (1981). Because DiGiuseppe need only offer to
perform in his pleadings to establish his entitlement to specific performance, the only disputed fact
issue to be resolved by the jury was whether Lawler breached the contract. See White v. Sw. Bell
Tel. Co., 651 S.W.2d 260, 262 (Tex. 1983) (holding that only disputed factual issues are
presented to the jury).
Aside from the doctrinal reasons for this rule, there are important policy considerations at stake
here. Requiring advance proof of an ability to pay puts the breaching seller in a better position than
he would have been if the deal had gone through as contemplated in the contract by allowing him
greater security in the solvency of the transaction. Unless the contract provides otherwise, sellers
must wait until closing to find out whether the buyer can and will actually go through with the deal. If
a seller suspects that a buyer cannot perform, the seller faces a choice: (1) wait until closing to see
if the buyer tenders the required payment, or (2) breach the contract and face remedies for breach.
The Court introduces the concept of harmless breach, concluding that a seller’s breach “does no
harm” when the seller, in advance of closing, believes a buyer will not be capable of performing
under the contract and prematurely eliminates the buyer’s opportunity to complete the transaction.
___ S.W.3d at ___. But such a breach, which cuts off a buyer’s opportunity to show that he is in
fact capable of performing at the time performance is due, is inherently harmful.
Requiring a non-breaching buyer to demonstrate ability to pay imposes a burden on buyers to
secure firm funding commitments well in advance of closing and disclose funding sources, a
burden that typically would not exist in transactions performed under a property sales contract. Until
today, we have never required a non-breaching purchaser to put on such proof. Cf. Corzelius, 220
S.W.2d at 635 (explaining that it would not be necessary for a purchaser “to produce a firm
commitment for an adequate loan” and recognizing that “[b]anks, insurance companies, and others
loaning money would probably be reluctant to execute a commitment for a loan to complete a sale
of lands which the owner had declared she would not convey”). The sale of property often becomes
a complex transaction that may involve developers with many properties, numerous lenders,
investors who may wish to remain confidential until closing, and other sources of cash flow that
may not come together until the last minute. Sellers find out at closing whether a buyer can pay,
and buyers need not choose a source of financing or secure a financing commitment until shortly
before closing. See Shuler, 644 S.W.2d at 448 (indicating that the time for buyer and seller to
show their ability to perform is at closing). I see no reason to change this state of affairs simply
because a seller has, for whatever reason, breached his agreement and forced a non-breaching
plaintiff to seek judicial enforcement. And, in a case such as this, in which the buyer testified that
he was ready and able to close when acceptable zoning was approved and continued to be ready
and able to close, equity demands no more of a non-breaching buyer.
Finally, it is entirely possible that a buyer who is ready, willing, and able to perform at the time of
trial may find his fortunes diminished by the time the closing date arrives such that he is no longer
able to make payment. Just as we do not require tender of payment when it would be a “useless
and idle ceremony,” we cannot require a showing of ability to perform at the time of trial when it, in
many cases, would be equally meaningless. See Burford, 199 S.W.2d at 145. The most efficient
way to ensure DiGiuseppe’s payment is not to burden the fact-finder with a speculative inquiry into
the buyer’s finances and potential financing prospects, but rather for the trial court to set a prompt
closing date, supervised by the court, during which DiGiuseppe may tender performance. Only
then must DiGiuseppe prove ability to pay, by tendering the payment due. If DiGiuseppe is unable
to close, Lawler will then be entitled to remedies the contract provides.
In my view, once a party has pled the remedy of specific performance with sufficient specificity,
nothing else is required with regard to ability to pay. It is understood that by bringing the action
(and undertaking the costs and risk involved in such litigation), the party is ready and willing to
consummate the transaction should the court render judgment in its favor. Here, DiGiuseppe has
done all that is required.[3] His first pleading in the trial court and his cross-petition requested the
remedy of specific performance and stated that, as soon as acceptable zoning was approved, he
was ready, willing, and able to satisfy his funding obligations under the contract. DiGiuseppe’s
pleadings indicated that he “possessed the necessary capital to move forward with the acquisition
of the Property.” Moreover, during trial, he testified that he was ready and able to close after March
7, 2000, the date the city council approved acceptable zoning.[4] DiGiuseppe stated that he had
three homebuilders who would have funded the purchase and that “if there hadn’t been another
contract in place, [they] would have closed the deal.” Though the Court finds DiGiuseppe’s
testimony “equivocal and conflicting” because DiGiuseppe did not demonstrate that would not
have been able to close the transaction on his own, ___ S.W.3d at ___, I am satisfied that
DiGiuseppe presented at least some evidence of his ability, with the help of investors he had
secured, to tender the money required under the contract.[5] See Corzelius, 220 S.W.2d at 635
(holding that a buyer is obligated to do no more than offer to perform in his pleadings, but a buyer
who put on some evidence of creditworthiness and willing funding sources sufficiently established
ability to pay). Contrary to the Court’s suggestion, DiGiuseppe was not required to prove that he
had cash in hand or that a written financing agreement was in place. DiGiuseppe offered to do
equity in his pleadings, and he presented some evidence of his willingness and ability to perform
under the contract. When a seller’s repudiation of a contract makes the buyer’s tender of payment
useless and excuses that requirement, there is no principled reason to impose on the innocent
buyer an obligation to establish pre-closing funding arrangements, which is not required by the
contract and has never been required by this Court. DiGiuseppe did all that is required to show
that he is entitled to the remedy of specific performance. I believe that, upon the jury’s finding that
Lawler breached the contract and DiGiuseppe did not, the trial judge had authority to order
specific performance. Because the Court holds otherwise, I respectfully dissent.
___________________________
PAUL W. GREEN
JUSTICE
OPINION DELIVERED: October 17, 2008
[1] In footnote 10, the Court takes the position that DiGiuseppe did not raise or argue that he was not
required to prove or obtain a finding of fact that he was ready, willing, and able to perform, suggesting that
such an argument should not be addressed in this dissent. ___ S.W.3d at ___. Yet that is the basis for the
court of appeals’ decision, ___ S.W.3d ___, ___, and the Court provides exhaustive discussion on this very
issue in its opinion. Id. at ___. In the first issue raised in his petition for review, DiGiuseppe claims that “[t]he
court of appeals erred in reversing the trial court’s award of specific performance to DiGiuseppe.” I believe,
as the Court appears to, that DiGiuseppe’s issue sufficiently raised the question of whether Texas law
requires such proof from a non-breaching buyer.
[2] See Kress, 261 S.W.2d at 704 (recognizing that specific performance is an equitable remedy); 17090
Parkway, 80 S.W.3d at 256 (relying on erroneous and distinguishable courts of appeals’ cases, as
explained above); Lazy M. Ranch, Ltd. v. TXI Operations, LP, 978 S.W.2d 678, 683 (Tex. App.—Austin
1998, pet. denied) (rejecting specific performance because the buyer breached the contract and had
unclean hands); Am. Apparel Prods., 880 S.W.2d at 269–70 (rejecting specific performance because the
buyer unilaterally rescinded the contract); Gordin v. Shuler, 704 S.W.2d 403, 408 (Tex. App.—Dallas 1985,
writ ref’d n.r.e.) (rejecting specific performance because the buyer failed to comply with the contract terms
and failed to disclose material information); Chessher, 619 S.W.2d at 421 (same); Hendershot, 476 S.W.2d
at 920 (erroneously interpreting Burford and Corzelius, as explained above).
[3] Strictly speaking, the pleadings filed by DiGiuseppe did not request the remedy of specific performance.
Frisco Master Plan, the limited partnership to which DiGiuseppe transferred his interest under the contract,
requested specific performance as a third-party plaintiff to the suit between DiGiuseppe and Lawler.
Accordingly, the trial court’s judgment granted specific performance in favor of Frisco Master Plan, not
DiGiuseppe. Because DiGiuseppe was acting on behalf of Frisco Master Plan and Southbrook
Development Company, I have not distinguished between these three parties for the purposes of this
opinion.
[4] DiGiuseppe testified as follows:
Q. Could you close after March 7th [the date DiGiuseppe accepted the zoning changes]?
A. Absolutely.
Q. Could Mr. Lawler close after March 7th?
A. No.
Q. Were you ready and able to close after March 7th?
A. We were.
Q. Are you ready and able to close today?
A. We are.
* * *
Q. You want to close this contract in accordance with its terms, don’t you?
A. Yes, I do.
[5] Though, as the Court points out, DiGiuseppe did not have cash in hand to personally tender payment
under the contract, DiGiuseppe testified that he had secured financing sources.
Q. Now, you had no ability to close this transaction yourself, did you?
A. I, personally, was not going to close the deal myself, no.
Q. You were going to get some investors to do it, weren’t you?
A. I had them.
* * *
Q. . . . Is there any question – I want you to tell the jury – is there any question that you have the
commitments and have the money to close this deal?
A. Not at all –
* * *
Q. And can you close this deal now?
A. Yes.