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)
Argued October 20, 2005
Justice Waldrop[1] delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice
Brister, and Justice Willett joined.
Justice Green filed a dissenting opinion, in which Chief Justice Jefferson, Justice O’Neill, and Justice Johnson
joined.
Justice Medina took no part in the decision of the case.
This case involves a claim for specific performance of a real estate purchase contract. After a trial in which
the jury found that the seller breached the contract, the trial court rendered judgment in favor of the buyer and
ordered specific performance. The court of appeals reversed on the basis that the buyer did not obtain a finding
of fact or prove that he was ready, willing, and able to perform. The court of appeals also concluded that the
buyer had waived an alternative claim for refund of his earnest money by failing to file a notice of appeal as to
that alternative basis for relief. We affirm the judgment of the court of appeals with respect to the claim for
specific performance, reverse with respect to the finding of waiver on the alternative claim for refund of earnest
money, and remand the case to the trial court for further proceedings.
* * *
V. Conclusion
We affirm the holding of the court of appeals that the contract at issue in this case does not alter DiGiuseppe’
s obligation to prove and secure a finding of fact that he was ready, willing, and able to perform his obligations
under the purchase contract as a prerequisite to obtaining the equitable relief of specific performance. In
affirming this part of the court of appeals’ judgment, we hold that an essential element in obtaining the equitable
remedy of specific performance is that the party seeking such relief must plead and prove he is ready, willing,
and able to timely perform his obligations under the contract. We also affirm the holding of the court of appeals
that such a finding cannot be deemed based on the jury charge as submitted under Rule 279. Finally, we reverse
the court of appeals’s holding that DiGiuseppe waived his claim to the alternate ground of recovery under the
purchase contract relating to refund of the earnest money, and hold that he should have an opportunity to
present this claim to the trial court for disposition. Accordingly, we affirm the judgment of the court of appeals in
part, reverse in part, and remand the cause to the trial court for further proceedings consistent with this opinion.
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G. Alan Waldrop
Justice