Arbor Windsor Court, Ltd. v. Weekley Homes, LP

State, v. with Moreno at S.Ct. COURT, ARBOR WINDSOR

01-85-00551-CR, at *3 1987 WL LTD., Appellant Feb. Dist.] (Tex.App. [1st — Houston 'd) (mem. designated not op., ref pet. Innis, holding (relying on publication) HOMES, LP, Appellee WEEKLEY appellant, “you remark to that officer’s again if knew him at you find God need to NO. 14-13-00480-CV time,” akin to statements one Texas, Appeals Court of it was an “off-hand because Brewer (14th Dist.). Houston remark”). Majority Dissenting Opinions sum, most light viewed in the favor March filed ruling, trial record able to the court’s officers, conclusion supports En Banc Rehearing Overruled each discussing case with other while June the radio turned voices and with hushed heard, be they could not up to ensure knowledge charged with

should not reasonably likely to their discussion was response. See In incriminating elicit an nis, at 1689-90. 446 U.S. 100 S.Ct. such, their not constitute

As actions did meaning of within the Mi interrogation randa, right her Nelson’s waiver of valid, Fifth and her Amend

counsel to counsel was violated. ment 484-85, 101 Edwards, 451 U.S. at S.Ct. at 1884-85. the trial court’s denial Nel-

We affirm motion to her fourth inter- suppress son’s view.

Conclusion judgment. the trial court’s We affirm

OPINION McCally,

Sharon Justice Court, Appellant, Arbor Windsor Ltd. (Arbor), appeals court’s the trial following jury Specifically, verdict. issues, main two Arbor contends the trial take-nothing erred in rendering court on of contract its breach claims Homes, (Weekley). LP against Weekley cross- Weekley also asserts two conditional points support, judg- of the trial court’s ment. We affirm.

Background

I. Summary Background

A. Factual April Weekley Arbor and en- into an for Sale and “Agreement tered (the Agreement) Purchase of where- Lots” by purchase Arbor would the land and lots, develop Weekley then would end, buy the lots. To that Ar- developed $3,850,000 purchase bor secured a loan to and develop the land 32-35 lots. Arbor’s beginning had a two on year payoff, loan by a deed June and was secured trust. The between Arbor Agreement Weekley rolling schedule provided Weekley the lots. From purchase for 1, 2008, disputed 2006 to December that each evidence trial showed fulfilling believed the other was not they obligations Agreement under the through amended attempted resolution parties’ fi- agreements, culminating time, By this nal Fourth Amendment. Weekley had 18 of lots bought and, result, alleges, Arbor was as a Arbor Cannon, Jr., Houston, TX, Neal D. on the loan. Austin, TX, Kemp Gorthey, Appel- W. for lant. company mortgage In March Community Arbor that Texas advised Jr., Adams, Houston, TX, N. Terry later purchased Bank its loan. Appellee. subsequently learned the loan had been FETC, entity which by McCally, purchased of Justices Panel consists notice of its intent eventually gave Arbor Busby, and Donovan. the land for post foreclosure. Arbor Answer “Yes” or “No.” proposed that Arbor and Question answered No. 1 “No.” Weekley jointly attempt to avoid the fore- (cid:127) Question No. 2 They not. closure. did FETC foreclosed Question preceded No. 2 the follow- property. Weekley appeared on the at the ing predicate you instruction: “If an- purchased foreclosure sale and the proper- Question swered ‘Yes’to answer the $1,320,000. ly for Otherwise, following question. do not an- question swer No. 2.” Background B. Procedural Question 2No. Weekley1

Arbor sued for breach of the Was Arbor Windsor Court excused from sending and its amendments for a notice of default failing purchase schedule, Homes? according lots to the as well as wrongful for fraud and foreclo- You are instructed that Arbor Windsor Weekley sure. counter sued Arbor for complying Court excused from if the breach of contract. The tried their failure, if any, was jury.2 claims to a Some of the jury’s material, 1. not or answers favored Arbor and some favored waived, 2. was or Weekley. Because the dispositive issues Weekley 3. if anticipatorily Homes appeal of this turn entirely upon jury’s repudiated agreement or (or answer) answers to failures to Ques- 4. if Weekley estopped Homes is 1, 2, 3, tions Nos. and we set forth those from complaining of Arbor Windsor questions predicate associated in- Court’s failure to comply with the verbatim, structions along with the re- agreement. sponses jury: from the Answer or “No.” “Yes” (cid:127) Question No. 1 jury Question did not answer 2No. Question 1No. predicate. because of the (cid:127) Question No. 3 you Do find that Arbor Windsor Court performed all of the prece- conditions Question-No. 3 dent to the agreement as set forth be- Weekley Did comply Homes fail to with low: agreement? You are Weekley instructed that Homes Weekley

Provided Homes with 15 failure, complying is excused from if the days written notice of default under any, if was agreement the written so that Week- ley material, could cure such default. 1. not or litigation began 1. This pendens. with Arbor’s suit Arbor then non-suited the home- against seeking enjoin FETC FETC, foreclosure. thereby leaving Weekley owners pendens. also filed a notice of lis defendant at trial. Weekley pendens learned of the lis when it subdivision; attempted to sell a home in the it 2. only questions The trial court ruled that the intervened in the "Arbor v. FETC” suit to par- to be submitted to the were on the quiet title and to obtain a release of the lis claims, respective ties' breach of contract pendens. Arbor petition, then amended its thereby directing a verdict on Arbor's other FETC, adding against additional claims appeal claims. Arbor does not from this deci- Weekley, and various homeowners. sion. quiet obtained its title and release of the lis waived, alternative, precedent), or 2. or was notwithstanding the judgment verdict. anticipa- 3. if Arbor Windsor Court court take-nothing The trial rendered a torily repudiated in favor judgment without is es- 4. if Arbor Windsor Court specifying appeal the basis This therefor. Weekley’s complaining from topped ensued. comply agreement. with the failure to “No.” ‘Tes” or Answer Analysis II. Question ‘Tes.” No. 3 jury answered Weekley’s Judgment A. Motion for on (cid:127) Question No. n the Verdict Question No. for Weekley’s The sole basis motion for comply fail to Did Arbor Windsor Court jury’s on the verdict was the with agreement? Question 1. As a answer factual You that Arbor Windsor are instructed matter, Arbor did does not not and here if from complying Court is excused that it failed to the written dispute send failure, any, position notice. Arbor’s factual material, 1. or Weekley’s not to “accepted request send waived, Therefore, notice.” Arbor does not anticipatorily 3. Homes if challenge sufficiency the of the evidence to repudiated or Question the answer to No. 1. support estopped 4. is if Homes Instead, argues indepen Arbor two Windsor complaining from Arbor jury’s reasons answer legal dent that with the comply failure to Court’s precedent No. 1 on Question to condition agreement. a Homes support Weekley judg not does “No.” “Yes” or Answer Both of these turn on well- ment. issues Question 4 “No.” jury answered No. prec law conditions governing established precedent must ver- A condition either sought judgment jury Arbor on the edent: Ques- party’s excused the other jury’s to be met or before upon dict based answer may be See Hohen (Weekley comply). obligation to enforced.3 tion No. 3 failed Co., E. & judgment jury berg George ver- Bros. Co. Gibbons Weekley sought on (Tex.1976). 1, First,4 Arbor jury’s Ques- to 537 S.W.2d upon dict based answer (Arbor Question that No. 1 should not argues did perform tion No. 1 (b) opportunity to cure whether take We in some abate or 3. note that circumstances proper remedy failure of a remedy ment for the nothing judgment proper is for Ar an provide notice of default and to alleged comply unexcused failure bor's See, opportunity e.g., Shafighi v. Tex. to cure. precedent give notice of with a condition 14-12-00082-CV, Co., Ins. No. Farmers such, As opportunity and an to cure. default (Tex.App.-Houston WL at *5 [14th case, parties, have the we assume for (not pet.) (mem.op.) Apr. no Dist.] may not in breach of con that Arbor recover ing remedy enforce a the insurer’s that perform it has failed an unexcused tract if precedent policy in its is abate condition ment). precedent. condition case, Weekley did not ask the In this otherwise trial court to abate action or Arbor’s and first address We reorder issues opportunity to the default. afford an cure ruling entry However, the motion for the trial court’s on argue, does not and therefore Arbor reach, (a) any question jury's judgment we about on the verdict because that do prece Weekley waived whether the condition dispositive appeal. issue is by dent failure to seek and an abatement jury fifteen-day have been submitted to the because 1. The provision notice precedent. a condition fifteen-day the contractual is not a condition as a matter of Agreement included the following Second, argues law.5 even fifteen-day notice provision: is a prece the notice condition Notwithstanding foregoing, Seller dent, Question answer to jury’s No. 1 agree, Purchaser covenant and each other, (15) with give days’ fifteen jury explicitly became immaterial when the written notice of during found, Question in answer to which time same prior be cured comply Arbor did not fail to with the any rights exercise of pur- or remedies thereby implicitly deter Agreement. suant to this that Arbor was per mined excused from above, As jury outlined determined forming the condition perform Arbor did not the “condition precedent” provide Weekley with fifteen Entry B. of Review Standard of days’ written notice of default. Jury Judgment on Verdict We resolve whether a contractual provision is a covenant or a prec Our review of a trial entry court’s edent examining the entire contract to presents on a verdict parties’ determine the intent. See Cris Motors, pure question of law. Tex Star well v. European Shopping Crossroads Co., Ltd., Regal Inc. v. Fin. 401 S.W.3d Ctr., Ltd., (Tex.1990). (Tex.App.-Houston [14th Dist.] goal Our is to par determine whether the pet.) (noting determining ties intended that the right responsibili legal jury’s effect of the ques answers is a ty at issue be conditional. See Restate law). such, tion of As we review the trial (Second) ment § of Contracts 226 cmt. a court’s decision de novo. See Hicks v. (1981). review, part As of that contract we Hicks, 281, 348 S.W.3d (Tex.App. 284 apply additional common law principles 2011, (“We Houston no pet.) [14th Dist.] that public reflect Texas policy disfavoring novo.”); questions review of law de see precedent. conditions example, For the Fin., Lawrence, Resurgence also v. L.L.C Supreme Texas Court instructs that “[i]n 01-08-00341-CV, 3248285, WL 2009. contract, construing a by finding forfeiture 8, *2 (Tex.App.-Houston [1st Oct. Dist.] a condition precedent is to be avoided 2009, pet.) no (mem.op.) (citing In re when another reading reasonable of the (Tex. 402, Humphreys, 880 S.W.2d Criswell, contract possible.” is 792 S.W.2d 1994) (stating in the entry context of of Thus, at 948. if the language of the con “questions that always of law are susceptible tract is to a prec non-condition review”)). subject to a de novo edent interpretation, we accept that con dent, challenge contends that Arbor’s is we need not resolve whether Arbor has error, actually complaint charge a of complaint waived its as an error in the by failing lodge objection Arbor waived to this charge or whether Arbor has not waived its question to the in the trial court. Arbor does See, complaint judgment. an as error in the preserved not contend challenge that Phat, Alvarado, e.g, Soon L.P. v. 396 S.W.3d Question Instead, wording the of 1.No. Ar- (Tex.App.-Houston [14th Dist.] that, matter, argues legal bor as a this court denied) pet. (distinguishing between a claim "may provision look at the written notice jury charge error and a claim that covenant, determine it is a mere and not a submitted, charge, support as cannot precedent." condition Because we conclude judgment). prece- is a condition note, too, language construe the as We that the condi struction and id.6 mere See must language covenant. tional connect the condition precedent obligation. conditioned by noting party that neither begin We Applications Eng’g, See Solar Inc. v T.A. of the argues that the notice Operating Corp., 327 S.W.3d such, ambiguous.7 nei- is As (Tex.2010) (rejecting the notion that condition to set any way ther undertakes party obligations ing necessarily operates some but inter- competing forth reasonable two others). words, to condition In other Instead, Ar- provision. pretations of the (a) language mere existence conditional parties’ use of the points bor (b) suggest within a contract does not that all result word “covenant” and the absurd of one reading provision obligations flow from are conditions would And, Weekley precedent.8 performance as a condition to the by other points parties’ “prior use of the term party. By way of simple example, phrase that this argues to” and constitutes Appeals easily rejected Dallas Court language completely conditional general contractor’s attempt to condition unless it a condi- meaning without creates full on a payment landscaping subcon tion precedent. promise complete tractor’s its work days. Landscape Design within ten & are in accord on Constr., Inc. v. Harold Thomas Excavat general interpreta of contract principles Inc., (Tex.Civ. ing, 604 S.W.2d tion as it relates conditions n.r.e.). App.-Dallas writ ref'd glean To to create a parties’ intent case, Article- III con parties’ we for condition precedent, look provided tract is of the es “[t]ime “if,” that,” al language “provided such agrees sence and subcontractor that.” is to “on condition Id Our task the work as complete described Article agreement, construe the entire and that working days II within 10 of commence task altered use of parties’ is not Id. Article V the condi ment.” contained ab “magic words” contract or the language: payment tional “Full shall be id.; words. See see also sence such when the work con due described Brown & Kellogg Steel Co. Hirschfeld Root, completed Inc., fully performed tract 281-82 consistent with Article II and Article IV.” App.-Houston pet.) [14th Dist.] ten-day Id. Neither Article III nor the parties’ find even from the use (refusing to promise Id. parties “condition” was mentioned in Article V. the word Thus, determined, promise court precedent”). meant “condition pretation applying A "an act or re after the relevant rules of covenant is acting way.” in a certain Solar Energy, frain from construction. NuStar contract See Applications Operating Eng’g, Inc. v. T.A. Co., L.P. v. Diamond 402 S.W.3d Offshore 104, (Tex.2010) (citing Corp., S.W.3d 327 108 461, (Tex.App.-Houston Dist.] [14th Lawson, Reinert v. (noting argu- pet.) parties' no that the 1938, writ)). remedy Civ.App.-Waco no competing interpretations do ments about a claim party’s for a breach of covenant is a ambiguous). a not render contract damages. for See id. verdict, argue that 8.Prior Arbor did not parties' positions ambiguity 7. We note the on a provision was a instead of covenant alone, as we context are not bound Instead, precedent. consider, Arbor asked condition ques- and do a such. We must law, jury to determine was excused Agreement that Arbor tion whether the is sus- ceptible performing precedent. than inter- to more one reasonable from condition in Article III was not a interpreted contained condition as a covenant rather than a payment obligation condition). to the full in Article V agree, We as to contract for- completion mation; because “Article V makes a required could not be according to Article II the work give notice of prior to the forma- tó precedent subcontrac [the However, tion of the contract. there are payment.” to full Id. tor’s] types two conditions One is a condition to the formation of a contract Turning to Arbor’s argument and the other is a condition to an obli- construction, we regarding acknowledge gation perform an existing agreement. appeal facial of Arbor’s argument first Hohenberg George Bros. Co. v. E. Gibbons parties that the chose the words “covenant Co., (Tex.1976). & Indeed, 537 S.W.2d 3 introductory as the agree” phrase jury charge defined a “condition prece- However, provision. the contested a sin dent,” objection, without as “an event that gle provision given word or cannot be con happen must or be performed a before Davidson, See trolling effect. J.M. Inc. v. right can accrue to obligation.” enforce an Webster, (Tex.2003). 128 S.W.3d Arbor does not prece- address conditions agree” The words “covenant and do not dent to obligations within an existing con- always signal provision that a purely is and, therefore, tract explain does not how covenant. See Lumber Cal-Tex Co. v. Ow it would be absurd that Arbor’s right to Co., ens Handle 989 S.W.2d 809-10 resort to remedies under the pet.). (Tex.App.-Tyler Nor do conditioned on its providing first notice to foreclose our those words review of the Weekley that it is in providing default and of the contract. Although remainder we days fifteen to cure such default. any interpretation resist that results in has, results, This court without absurd forfeiture, we must nonetheless construe construed other provisions notice as condi- meaning. the entire have precedent tions tied to acts or events that Constructors, Cajun Inc. v. Velasco Drain occur subsequent to the making of the Dist., age 826 (Tex.App- See, Constructors, contract. e.g., Cajun denied) 2012, pet. Houston [14th Dist.] 380 S.W.3d at 826. We conclude that the (noting that in our effort to avoid constru construction of the notice in this ing provision precedent as a condition we case as a condition precedent does not lead ignore plain language). There to an absurd result. fore, parties’ use of the words “cove agree” nant not dispositive cite, do not and we have not construction. found, any construing cases identical lan- Arbor’s second contract construc guage couples agrees” “covenants and tion argument concerning potential ab “prior with to.” persuaded, We are how- ever, surd result misses the mark. Focusing on that Weekley is correct pro- formation, vision, conditions written, as a whole and as contains suggests that to provi construe explicit conditional language “prior to”— — sion in this case as a precedent condition that will have no if meaning construed as to formation of the contract would lead to no more than a mere By covenant. their an absurd result and is therefore an im agreement, “Seller and Purchaser cove- Criswell, permissible construction. See agree, other, nant and each with the to (15) 792 (noting S.W.2d at 948 that give when a fifteen days’ written notice of any impose condition would an absur'd or im default during which time same be result, possible agreement the prior must be cured to any rights exercise of or

139 [TA]) to Agreement.” isfactory of all Lien aris- pursuant rights to remedies does not contain the oft-cited ing The sentence out of Liens filed in connection “if,” conditioning language: traditional the with Work. that,” that.”

“provided or “on condition /¿(alteration in original). But, looking magic we are not for again, Here, the language “prior conditional to” Texas have found other words. courts just within not the same paragraph as lan phrases and to be conditional words exercising the reference to contractual Partners, Berkshire guage. See Dallas remedies, but within the same Inc., sentence. Photography, Ltd. v. James French notice of to 05-98-01352-CV, Arbor’s and WL No. 1, 2001, Weekley’s fifteen-day opportunity to cure (Tex.App.-Dallas pet. *5 Mar. de nied) (not “prior publication) invoking for must occur con- designated .to” the (holding provi that notice-of-default tractual remedies for default. Weekley’s any not stating sion “Tenant shall exercise conclude “prior phrase To the to” remedy prece such unless” is a condition impose does not a condition on Arbor’s breach); recovery also dent to for see remedies, to invoke we place must Ltd., Modern 13 — 12— Wright Group, “cured,” period after the word though 00293-CV, 2013 WL at *7 parties regard, did not. In that the provi- 30, 2013, Aug. pet. App.-Corpus Christi more sion is like “unless” conditional lan- denied) (mem.op.) (holding that term Partners, guage. Dallas Berkshire “qualifying payment” event constituted (holding 2001 WL at *5 language). conditional notice-of-default “Tenant stating any remedy shall not exercise such unless” contrast, By language construed recovery is a condition to for be mere condi- courts to covenants without breach). not urge Arbor does another wholly distinguishable. tion is For exam- construction, we cannot this sen- and craft ple, our sister court construed an arbitra- way yields in a anything of the tence other required “[e]ach tion pay parties equal an share of than a condition [to] costs, fees, expenses, arbitration and us other point do not fees, expenses” and arbitrator’s costs provisions Agreement aid our requesting party’s right However, construction. we find some demand arbitration. See Amir v. Int’l guidance in Para- parties’ on the intent Commerce, Bank graphs and 17. One of the remedies (Tex.App.-Houston no Dist.] [1st explicitly to Arbor Para- available under above, pet.). Similarly, as outlined graph Agreement 17 of on occasion Supreme Texas Court found applicable Weekley’s comply failure to with the in Solar language Applications conditional is to Agreement terminate S.W.3d at Engineering. See 327 Yet, Money. Para- and retain Earnest provision stated that Solar’s “Ear- graph Agreement, entitled Payment Application final shall Money” nest states that accompanied (except previously deliv- shall release Company Title ered) (i) [t]he all by: documentation called for until Money the Earnest and unless Documents, including in the Contract the Title provided Seller has [Arbor] not limited insur- but evidence of (ii) an affidavit of ance, Company [Arbor] Seller surety, any, consent of the (iii) Completion stating that: ‘Substantial payment; final complete (sat- pursuant effective releases or waivers for Sale legally (the of Lots Purchase dated Effective In Paragraph parties explic have itly Agreement) stated the effect of silence Date of his has been met on where no is, required; tice is Weekley is or before the Completion Scheduled And, in agreement. deemed to be through Date, has by a default occurred Pur- Paragraph part which is in a notice and Agreement, chaser under said Seller has provision, cure parties expressed have provided Purchaser with notice their intent obligations that Arbor’s under required in Agreement, as default the Agreement are not conditioned on has not such been cured within Weekley purchasing a lot Substantial after provided period Agree- the cure in said Completion. paragraph This demon ment, Seller is not in default under strates how the para drafted a Agreement said and has not been in graph to precedent. avoid a condition Agreement said during default under Corp. TransTexas Gas v. Forcenergy On period of Purchaser’s default. shore, Inc., 13-02-387-CV, 2004 WL added). (emphasis paragraph This tends 1901717, at *8 (Tex.App.-Corpus Christi agreement to confirm an between par- denied) 26, 2004, (not Aug. pet. (mem.op.) may ties that Arbor not obtain one of the ing that the parties demonstrated a remedies, contracted Money, separate Earnest provision of the contract they unless and until it swears that it knew how to draft a given prece has condition intended). dent if they such is what Weekley notice and an opportunity to cure. any absence of such language para Paragraph entitled “Substantial Com- graph confirm, at issue here tends to pletion,” gives insight par- some into the contrast, (a) giving Arbor notice and ties’ intentions on another area of notice an opportunity to cure simply is not requires and cure. It “promptly Arbor to (b) requirement; choice but a Arbor’s furnish written notice” of its belief that all rights under the provision Remedies do substantially Lots are completed. Week- not arise until gives fif ley days then has fifteen to inspect the days teen to cure. notify Lots and Arbor of item with summary, provision itself contains disagrees. The paragraph then conditional language. Other paragraphs of states the consequences Weekley’s fail- support the interpretation give ure to such notice: “The failure of provision is a condition notify Purchaser to so Seller within such is not described as a cove (15) day period fifteen shall be deemed to nant begins but with the introductory be Purchaser’s that all condi- agree.” words “covenant and To construe Completion tions to Substantial have been as either covenant or an satisfied and that Substantial Completion ambiguous provision in an effort give And, has Paragraph occurred.” 7 con- meaning to single phrase this out of con cludes with the following sentence: “Not- text ignore would the remaining language withstanding foregoing, Purchaser and eviscerate the reasonable mean shall purchase have the any Lot ing of the paragraph. Having examined prior Date, to the Completion Substantial whole, the contract as a we conclude that but the same shall not relieve Seller from “compelled we are provi [construe obligations covenants and satisfy sion precedent] by language requirements aforementioned for such Lot way.” construed no other or Lots in accordance with the terms of Corp., Chambers Hunt Petroleum Agreement.” (Tex.App.-Tyler

141 Inc., negative to (citing Reilly Rangers Mgmt., jury ques answer a pet.) A comply “failed with (Tex.1987)); tion on to a contract” also 727 S.W.2d 530 see positive is that Inc., finding party not a such Constructors, Cajun 380 S.W.3d with “complied a contract.” See Gren conclude, therefore as a matter 826. We Reconstructors, Inc., welge v. Shamrock law, of that the notice is a condi- (Tex.1986) (holding 705 S.W.2d 694 remedy to tion Arbor’s jury’s that a failure to find breach of con The trial court did for default. Weekle/s the plaintiffs carry tract meant failed to Question 1 to the submitting not err in No. of not proof, their burden that the defen jury. contract); substantially performed dant the jury failed to obtain a find- 2. Arbor Foster, see also Cullins v. ing on its excuse defense. 536-37 (Tex.App.-Houston [14th Dist.] pet.) jury that (holding no the “[i]f no argues Arbor that even if the negative finding makes a a answer to. precedent, the tice a condition question, it means the with the bur Question No. will not jur/s answer proof den of failed to bur carry has Weekley take-nothing judgment. a support den”). Here, Question No. 4 placed the that “due to a defec acknowledges Arbor Weekley burden on establish that Arbor question asking of jury tive condition the comply failed to with the Agreement. from whether Arbor Windsor excused Thus, jury’s the negative answer means no breach, of the not sending jury did Weekley more than failed to meet its bur have say did not to do so.” expressly comply den to show that Arbor failed to argues Arbor nonetheless that once It that finding with contract. Question jury answered “no” to No. actually with complied Arbor the contract. determined that Arbor was jury impliedly Moreover, out, points itself Arbor notice, providing from and the excused Question have jury may concluded No. Question answer to 1 became jury’s did fail comply that Arbor not with immaterial. contract for of reasons based number jury question A is immaterial given. Ques- the instructions upon Within when its answer cannot alter the effect 4, the that jury tion No. was instructed City Bank Ind. v. the verdict. Nat’l complying Arbor is excused “from if the Ortiz, (Tex.App- (2) (1) failure, material, any, if or denied). 2013, pet. Houston (3) [14th Dist.] waived, Weekley or if Homes antici- jury’s (4) Arbor reasons that the answer patorily repudiated or Question No. 1 alter cannot the effect estopped com- Weekley Homes is from jury the verdict this case because failure plaining of Arbor Windsor Court’s with complied Thus, that “Arbor Windsor found comply agreement.” with the not, jury did howev Agreement.” simply that jury have concluded er, complied with preponderance find Arbor bring did not (1) Agreement. found that Arbor either failed to evidence Arbor (2) fail to with the comply Agreement. comply did not with the law, condi- comply Texas this is a distinction with Arbor’s failure to with the Even if precedent was not excused.9 difference. tion Question party complains appears improperly No. 4 shift Neither here of contract. However, on the it is the burden to to establish that burden instruction. compliance support our was not excused from with further conclusion ignore Arbor, the fact that neither place we were did not the burden on question nor the instructions make refer form, because of its broad did not cause precedent, ence to notice conditions we jury any question to answer that would not, interpret jury’s in an effort to permit an inference brought that Arbor verdict, guess jury about how the reached preponderance of evidence that it was ex- Thus, its answer. Arbor did not obtain an cused from satisfying prece- the condition implicit finding jury from the on its excuse dent. affirmative defense to the notice condition summary, In Arbor had the burden to precedent. prove that it sending was excused from Instead, analysis our falls within Texas notice of default to aas condition Rule of Procedure 27910and Civil the Tex- to its to invoke contractual decision Supreme DiGiuseppe as Court Thus, remedies for default. Arbor also (Tex.2008). Lawler, 269 S.W.3d 588 In had the burden to a jury finding obtain DiGiuseppe, submitted their that it was excused. Because of the im- breach of contract claims on broad-form proper predicate Question questions. Id. at 592. DiGiuseppe failed object, which Arbor did not Arbor did not “ready, willing, to obtain a and able to jury finding obtain a that it was excused. perform” finding support fact his re- Arbor does not argue conclusively that it quest specific performance. for Id. The established that it was excused from send- concerning DiGiuseppe evidence whether ing Therefore, notice of default. ready, willing, perform and able to excuse conflicting. performing Id. at 595. The from the condition precedent, Texas Supreme jury’s Court determined that the an “independent ground ... of defense” finding DiGiuseppe “complied that with ground is a been has waived the contract” was neither essential nor failure to submit it. See Tex.R. P. Civ. necessarily referable under Rule 279 to 279.

DiGiuseppe’s request specific perform- jury might ance because the have found III. CONCLUSION under the instructions that DiGiu- seppe “complied with the contract” be- Because we fifteen-day conclude that the complying, cause he was from excused precedent, condition ready, willing, because he was both and and we further jury’s conclude fact, did, comply. able and See id. at Question answer to 4No. does not render 598. jury’s Question answer to No. 1 imma- terial, the trial court did not err in the argue

Arbor does not and could not implicit conclusion that Arbor per- failed to jury’s finding Weekley’s on breach of form an unexcused precedent. ground recovery necessarily contract We, therefore, hold that the trial court referable to Arbor’s excused-condition- precedent ground properly rendered a take-nothing judg- defense under Rule herein, Question 279. ment for Weekley As outlined No. 4 on its affirmative de- fense, precedent, did not mention the condition and we affirm the judgment. As Question implicitly answer to No. 4 does provides "[u]pon appeal 10. Rule 279 all independent grounds recovery mean that Arbor met burden or of de- to establish conclusively fense not established under the performing that it was excused from the con- evidence and no element of which is submit- dition requested ted or are waived." Tex.R. Civ. P. alter- Due to the size of Arbor decid- such, Weekley’s project, do not address we partner with an established home- affirming the ed judgment. nate bases for Weekley. builder — (Donovan, J., dissenting). Weekley en- April Arbor and OPINION “Agreement

DISSENTING tered into an for Sale and (“the Agreement”). of Lots” Purchase Donovan, Justice John named “Windsor The subdivision was Court, Ltd. Windsor Appellant, Arbor pur- Arbor secured a loan for the Court.” (“Arbor”), judgment the final appeals development chase of the land and Judg- Entry “Motion for of granting the Weekley purchase agreed subdivision. Alternative, ment, Motion for or in the two-year on a set forth in the lots schedule the Verdict” Judgment Notwithstanding Agreement which ensured the cash the Homes, LP. Weekley by appellee, filed necessary pay for the cost of the flow final It is not clear from the (“Weekley”). $500,000 ($3,850,000). Weekley paid loan court which motion the trial judgment money, deposited Priority with Ti- earnest therefore, issues, in two Arbor granted; tle. granting of both motions. appeals the Agreement provided The Arbor would it refers to as majority The affirms what development basic responsible the Weekley’s in “take-nothing judgment” (60) sixty days within of of the site the favor, holding a notice of default Date, Completion Substantial which under and in the between Arbor Paragraph Agreement 7 of the was oc- precedent to its was a condition Weekley 30, than January cur “no later 2007.” filing agree I suit. do However, Weekley accepted substantial Further, the Ma- a condition 2007, as of 2007. In completion March appellate jority not address Arbor’s does agreed Agreement the was Mo- granting Weekley’s of challenge to neither in “full force effect and Judgment Notwithstanding tion for default,” acknowledged they in was (“JNOV”). I believe the trial Verdict the ‘Letter of Com- “receipt of Substantial in awarding in final court erred 29, 2007, required by pletion’ on March Therefore, respectfully I Weekley’s favor. accepting sub- [Agreement].”1 After dissent. 29, 2007, completion on March stantial purchase ten lots with- Weekley agreed Background I. every and five lots three in six months The evidence until October 2008. Background months A. Factual Weekley purchased ten lots in revealed develop- This concerns a real estate suit three May two lots in lots April Riddle, by John Arbor’s ment envisioned 2008, and lots on December August in two years president. negotiation After two of 1, 2008. be- City Spring Valley, with the of was amended four Agreement came in 2006. property the owner of merely evi- of The first amendment concept development was a times. Arbor’s developer name of the actual on small denced the large, upscale “patio townhomes” lots, The sec- style. Windsor.2 Georgian property all in a coherent built —Arbor in delays January are not uncommon delay 1. The from to March was dence that factors, development of this nature. was evi- result of several and there Agreement name The Seller’s amendment changed ond the schedule for one month beginning January each in lots, Weekley’s purchase acknowledging purchased. until all the lots were completion the substantial date was Other than the two in purchased lots De- March 2007. The third amendment cember make did not Weekley to funds so agreed-upon purchases allowed advance of lots in the time development continue project specified could fourth a time when not current on amendment. obligation purchase its contractual lots In March Graham Mortgage ad- time frame set in the Agree- forth Community vised Arbor that Texas Bank ap- ment. advanced funds totaled purchased the loan. Arbor later learned $82,000, proximately an amount less than had, fact, purchased by loan been the cost one lot in the subdivision. FETC, entity eventually gave portion

A these advanced funds were Arbor notice of its post intent to the land Weekley to closings reimbursed at lot in However, prior for foreclosure. to FETC August and December 2008. foreclose, giving Arbor notice of intent to In November purchase lots Weekley acknowledging and that had sold occurring contemplated not as under lots during April-August several Ar- Agreement amendment, and second proposed Weekley they bor to work interrupted payments which Arbor’s to together stop foreclosure, to the pending Mortgage. interruption Graham The agreeing with Arbor to pay Weekley’s at- Graham Mortgage caused send a notice to fees. torneys’ Weekley respond did not to Arbor, Mortgage of default and Graham to the offer. Weekley Arbor requested send a notice of In September FETC foreclosed on Welch, Arbor default. discussed this with the property. Weekley appeared at the

Weekley’s land acquisition manager, who purchased sale proper- foreclosure and pleaded with Arbor not it send a $1,320,000, ty for an amount than the less of default. notice purchasing cost of the seventeen lots 25, 2008, present- On November Riddle which remained available for sale. another proposal ed Welch to sell the re-

maining lots to Background Weekley for B. Procedural discounted price, offering the remaining seventeen lots August, prior In late to foreclo- $1,920,000. for The alternative was to sure, seeking Arbor sued affirma- FETC schedule, price maintain contract and Approximately tive relief. four months selling $1,120,000. seven Weekley lots for after Weekley pur- FETC foreclosed and agree did not to the it proposal; purchased property chased at the foreclosure in lots December two sale, Weekley intervened in Arbor’s suit FETC,

The entered fourth against into the and seeking judgment against amendment, signed final December quiet on title. Weekley Arbor to amended 2008, days after proposal to sell petition Arbor’s in alleging intervention remaining lots at a discount. Arbor Arbor, claim against breach-of-contract acknowledged Weekley purchased asserting had and affirmative Arbor defenses. lots, eighteen original of the 32-35 and Weekley’s petition answered in interven- required Weekley tion, Arbor purchase two petition, amended its added and ad- on or before lots December 2008 and against parties. ditional claims various Court, "One Windsor L.P." (or obligations Agreement under this only defendant trial

Eventually, by any The Arbor did the determination Purchaser Weekley. jury found representation warranty by did or Seller not send misleading), hereunder is false or Pur- Agreement. with the The comply fail to (i) $987,567 chaser be entitled ter- jury damages in actual shall to either awarded (ii) $370,337 Agreement minate ... enforce attorneys’ in fees Arbor. this specific pursue any or oth- comply performance found failed equity er remedy provided and did not award law or Agreement with the judgment the final ment, JNOV. “reorder[sj” the motion to both of Arbor’s granted Thus, Majority JNOV. ment which appellate complaint I damages above, complained Majority characterizes the final In two disagree or I Weekle/s write, therefore, or separate as a enter with the manner Majority granted Weekley’s motion for attorneys’ Majority “take-nothing judgment, issues complaints. alternative, fails to address Arbor’s motion issues, as to the refers does not address fees to as if Arbor had not granting to enter the trial to the final motion judgment.” Instead, final which the judgment Weekley. because appeals noted judg- judg- court Agreement, and Purchaser ance .... performance formance Seller prior Seller Money gations or agree, Lots. during dies (15) days’ (iii) pursuant each with shall be Notwithstanding and which time same ... hereunder, extend the time for exercise of ” m~itten notice ... In the event (ii) Purchaser as to perform pursuant extend the time for entitled to this under and retain the Earnest provided (iii) then, other, purchase enforce Agreement rights covenant of in that the failure of (i) any of its obli- give foregoing, terminate perform- or reme- Seller is be specific to this fifteen event, cured per- .... and ^[17] added). but appellate complaints, (Emphasis also Arbor’s result. disagree because I with the language of determining whether the precedent, a contract is' a condition II. Analysis of Motion of contract control. See Cris words Judgment Enter Shopping v. European well Crossroads Majority holds the notice-of-default (Tex.1990). Ltd., 792 S.W.2d 948 Ctr. provision precedent a condition to Ar- Generally, performance is condition when action and Week- bor’s breach-of-contract that,” al, “if,” “oh “provided terms such as ley because judgment is entitled that,” language condition or some similar disagree did notice. I give If these of condition must be used. Id. and, provision precedent is a condition words, a similar particular or words of were, I disagree even if it has contract, nature, are not included in the entitled to in its shown it is cove are construed as a then terms favor. requirement Id. there is no nant. While utilized, absence that such their phrases A. or Condition Precedent? Covenant parties’ intention that probative is of 17 of Paragraph pro- made, rather a condition promise be than vides: Hohenberg v. imposed. See Bros. Co. Co., 1, 3 George E. & S.W.2d In the 537

Remedies Notice. event Gibbons . (Tex.1976) perform, any Seller to the failure of 146 precedent may

A condition be either a Because of their operation, harshness in condition to the formation of a contract conditions are not favorites the law. obligation perform Indus., or to an an exist- Sirtex v. Erigan, Oil Inc. ... ing agreement. prec- Id. (Tex.1966); Conditions S.W.2d see also Hoh obligation perform edent to an are enberg, 537 S.W.2d at 3. events, which those acts occur subse- The Majority holds the is a contract, quently making to the of a precedent to Arbor’s breach-of- before there a right must occur action, though contract even performance immediate before commonly lacks words used to create duty. there is a breach contractual so, condition. In doing Majority im omitted). (Citations

Id. poses a forfeiture of rights Arbor’s operates A condition is an event as a Weekley. windfall to Applications or a Solar happen perform Eng’g, Op must must Inc. v. T.A. (Tex. before a can accrue erating Corp., to enforce an MRCO, 2010) Inc., (Second) obligation. Azad v. (citing 14 — 12— Restatement of Con 00165-CV, (1981) (Section 227(2) § 2013 WL at *6 tracts cmt. d 2, 2013, App.-Houston interpretation Nov. favors “an ... [14th Dist.] avoids denied) pet. (mem.op.) (citing Corp. might the harsh results that Centex otherwise re Dalton, (Tex.1992)) sult from the non-occurrence of a condition (holding “once the claim gives adequate protection has been final and still to the ized” language, obligor.”)). conditional and a plain-reading of the contractual provisions Interestingly, Majority relies on So- which avoids forfeiture is the one to be lar for the proposition that “the conditional adopted).3 satisfy Failure to a condition language prec- must connect the condition precedent generally liability, results Yet, edent to the obligation.” conditioned perform but failure to a contractual obli Solar, the Supreme Court of Texas held gation may liability. create McMahan v. covenant, a lien-release awas not a condi- Greenwood, (Tex. 467, 108 S.W.3d 484 precedent tion payment, though to even App.-Houston pet. de [14th Dist.] there was language which could ‘Wthen” nied). Words “obligations such as and signal a condition precedent. See id. promises” do not the creation indicate of a However, payment a conclusion that condition Id. at 485. “conditioned” provision on a lien-release contract,

In construing a forfeiture operate would as forfeiture which Solar finding a precedent condition is to be avoided. Id. “In the absence of condi- avoided when another reasonable reading language, tional reading a reasonable of of the possible. contract is Hohenberg, the lien-release is that it is a 3; Criswell, 537 S.W.2d see also promise 792 or covenant by provide Solar to a S.W.2d at 948. When the condition would lien-release exchange affidavit in for re- impose result, an impossible absurd or ceiving the final payment. interpretation This agreement will interpreted be as creating avoids forfeiture completes and the con- á covenant rather than a condition. Id. tract.” See id. at 109-110. Dictionary Black's Law agreement defines “condition defines "covenant” as "A formal event, precedent” "An deed, act or other than a promise, or in a contract or to usu. do time, lapse of that must or exist occur before act, particular compact or not do a a or duty perform a something promised to arises. stipulation.” Id. (10th ed.2014). Dictionary Black’s Law It

147 Here, interpretation Improvement dale Water Control reasonable a Constr., would avoid forfei- 1 v. J D Dist. No. & No. 09-09- given 00062-CV, be for the notice was to 2010 ture is that WL at *4-5 and, 2010) curing default default purpose App.-Beaumont Sept. (mem.op.) cured, be then Arbor not or could not phrase (concluding “retainage ... shall not the set remedies out pursue could [by to the paid Contractor District] Majority’s interpretation Agreement. until the has au [Governmental Board] a forfeiture be- is and works unreasonable ... thorized a reduction in on retainage curing Weekley’s the de- cause neither up contract work” a prec the set condition ability nor was possible, fault was Arbor’s Co., edent); Cal-Tex Lumber Inc. v. Ow Agree- to the remedies under the seek Co., Inc., Handle 989 ens S.W.2d ment. 1999, no (Tex.App.-Tyler pet.) (holding “ that language party ‘covenants and cove To hold that “Seller Purchaser ” provide to insurance agrees’ was condi a condition agree” precedent nant and precedent beginning opera used. The lan tion to ignores plain words must under the up agreement, does not set an event which tions but not as guage a perform agree occur before there is one of duties included in the Marsh, at 3. Hohenberg, ment); ance. See S.W.2d Marsh v. S.W.2d best, At a timeframe for language sets (Tex.App.-Houston [14th Dist.] default, prior cure a pursuing pet.) (holding construing no ex money, of earnest phrase [gift] paid” return/release “unless such are taxes seeking time for tending performance, precedent performance as a condition Further, provi specific performance. perform under would render preclude sion does breach-of-contract impossible ance because taxes not be could is no action in the event there notice—it transferred). paid gifts until after were requires defaulting party merely support holding To that “covenant non-defaulting cure the default before agree” a condition party pursues Agree the remedies action, Ma breach-of-contract Arbor’s Co., Steel Inc. ment. See Hirschfeld jority ignores the rationale notice of Root, Inc., Brown & Kellogg delivered; is, being give 272, 279, (Tex.App.-Houston 281-82 [14th days defaulting party fifteen to cure pet.) (holding providing Dist.] Cross, default. See Dorsett v. program maintenance “as 213, 217 (Tex.App.-Houston Dist.] [1st year warranty” the ten a condition denied) (noting the. pet. that when precedent language because there was no depends of on a condi obligation party one nonperformance seller’s stating of being performed, and fulfillment tion program purchas maintenance would void the other prevented by the condition is warranty); Wright Modern er’s see also fulfilled). is considered party, the condition Ltd., 13-12-00293, 2013 WL Group, Here, Weekley in Arbor’s after intervened 4714930, at *6-7 Christi (Tex.App.-Corpus FETC, denied) against suit and Arbor answered 30, 2013, pet. (mem.op.) Aug. Weekley, property had been and sued (holding obligation pay former em on, Weekley purchased the foreclosed ployees “qualifying conditioned on a event” longer property, possessed and Arbor no precedent interpreting was a condition — Thus, insisting any interest it. company’s payment employ due Weekley of give prior default controlling ees unless a condition [sale suit, occurred); longer filing in the Era- when it owned company] interest unworkable, development, is fees, unreasonable the sharing of arbitrator’s costs and view, as a operates my forfeiture. In expenses a condition party’s on the right holding that Arbor could not file its Further, to demand arbitration. in terms breach-of-eontraet suit unless and until it notice, the Amir court reviewed the gave notice of default incentivizes Week- following language: ley’s alleged conduct which Arbor violated party one files suit outside of arbitra- if Agreement. Zachry See: v. Port of tion, the other party [then] can invoke Auth. County, Houston Harris their by to arbitration providing (Tex.2014) (refusing S.W.3d en ‘timely written notice of intent to arbi- force a which operated to allow trate.’ intentionally one injure another Amir, 419 (Emphasis add- remedy). without ed). But, even notice of default were argued bank it never received “writ- precedent, only it is a condition arbitrate,” ten notice of intent even pursuing rights to Arbor’s though Amir compel had filed motion to pursuant remedies to the Agreement. arbitration and served the bank with the Those following: remedies included the motion. Id. at 692. Amir held that the the Agreement termination of and retain- bank’s notice of Amir’s intent to arbitrate age of the money; extending earnest precedent.” satisfied this “condition Id. at performance may mutually time for 693. There was no such language “if/then” agreed upon; or enforcing specific per- Agreement between Arbor and formance purchase as to the of the seven- Weekley. A interpretation reasonable Thus, teen remaining lots. a rational and providing notice of default was to allow interpretation reasonable of the Agree- cure, the opportunity to before ment is that the parties agreed provide resorting pursuant to remedies to the notice of default to allow prior cure However, Agreement. interpretation exercising remedy Agreement. under the possible is neither nor reasonable. Contrary Majority’s to the interpretation, Majority holds the interpretation language does not result in em forfei- Further, ture. Majority ployed require Agreement would is “more like give Arbor to language,” notice to at a time ‘unless’ conditional citing Dal Partners, property after the had fallen into foreclo- las Berkshire Ltd. v. James sure, effectively Inc., thus terminating the French Photography, No. 05-98- 01352-CV, any of Arbor’s rights or 2001 WL at *5 denied) (not remedies contained in the Agreement.4 App.-Dallas Mar. pet. designated for publication). The lease lan The Majority writes that “language con guage reviewed in pro Dallas Berkshire by strued courts to be mere covenants vided: without wholly condition is distinguish

able,” relying on Amir v. the event of International Landlord Commerce, Bank under this lease which give would Ten- (Tex.App.-Houston Lease, right ant the to terminate this [1st Dist.] no to pet.). The agreement arbitration in any Amir abate rent or to exercise other rem- language Landlord, contained no that would make edy against Tenant shall not Weekleypurchased property the development. at the fore- tendant the to sale; thus, rights closure Arbor had no at-

149 Here, payment. any remedy such unless Tenant Id. there is exercise another read ing possible, of the specifically pre notice contract is Landord written gives cluding Majority’s holding and Land- the describing Landlord’s default agree” “covenant notice provision default within 30 is a fails to cure such lord precedent. condition after of such notice.... days receipt Further, relying on Paragraph 7 of the held was con- provision The court Agreement, Majority Weekley’s holds purpose its precedent because dition is agreement, silence deemed and that this any time to cure to allow Landlord language contractual how demonstrates before the Tenant could exercise parties drafted to avoid a set in the lease. Id. the remedies out precedent. condition Paragraph enti- for of contract —re- Arbor’s suit breach Completion,” tled “Substantial contains the in Weekley’s petition to interven- sponding following: remedy not a set out in the tion—was [Weekley] failure of Purchaser to [T]he thus, was not a condi-

Agreement; notify so Seller within such fif- [Arbor] to suit. precedent filing tion (15) day period teen shall to be deemed Majority then rationalizes con agreement be Purchaser’s that all condi- Paragraphs reference to and 7 clusion tions to Completion Substantial have Agreement, stating Paragraph been satisfied and that Substantial Com- Agreement” to confirm an that Ar “tends pletion has occurred.... bor obtain one contracted Notwithstanding foregoing, Pur- remedies unless and until swears it has chaser shall have the purchase to an opportunity notice and given any Lot to the prior Comple- Substantial Paragraph provides cure. Date, tion but same shall not relieve default, Weekley is then before earnest Seller obligations from its covenants and released, money is Arbor must allow to satisfy require- the aforementioned Weekley to cure This provi its default. ments such Lot or in accor- for Lots only relates the release of earnest sion Agreement. dance with the terms of this support and cannot money be used Majority provi- then concludes this Majority’s holding Paragraph sion knew demonstrates precedent 17 “notice” is a condition how draft a avoid a condi- Arbor’s breach-of-contract suit. However, tion also included Constr., Design Inc. Landscape v. Ha Paragraph provisions between two Inc., Excavating, Thomas rold above, forth provision: set “notice” (Tex.Civ.App.-Dallas writ n.r.e.) any language gives will If Seller notice of (holding ref 'd not be Purchaser precedent as a material construed condition when condition Substantial Com- reading pletion has not been possi another of the contract occurred or ble). The Landscape performed court reviewed five reasonable Purchaser’s (90) provisions opinion, ninety and noted that shall within contractual Seller days work or “time is of essence” and correct defect.... pur- ten is unable “complete days” the work ... within the event Seller to cure ..., im- objections was a covenant because there was no lan chaser’s Seller shall conditioning notify writing, on the Purchaser in guage payment ten-day mediately so thus, ... though whereupon there elect provision; even Purchaser shall (10) completion days within after Purchaser’s language, conditional ten (i) notice, receipt work was the Seller’s to either: (ii) for Seller to cure ... I believe the the time same result should be extend performance of all obli- reached here. There is a reasonable inter- specific enforce (iii) ... pretation operate Seller terminate which does not as a for- gations of feiture; thus, in the absence Agreement.... of conditional this language, must be construed believe is a language I do not this While covenant, as a not a precedent. condition I it precedent, would note is the condition v. Petroleum Corp., Chambers Hunt language in found type same 578, 2010, (Tex.App.-Tyler Majority finds is Paragraph pet.) no in a (concluding provision lease Further, precedent. a condition without requiring pays that lessee all taxes is a any opinion parties’ on the abil- expressing construing covenant because condi- disagree ity agreement, to draft an I precedent only appropriate tion unless parties evidences that the knew language language may there is construed paragraph to avoid a how to draft condi- way). no other they and that to im- precedent tion chose precedent Paragraph Finally, pose Majority a condition notes that abate generally proper remedy ment is provide failure to notice of default and an sum, language In there is no which ex cure, opportunity citing Shafighi v. Tex plicitly parties’ states intention Co., as Farmers Insurance No. 14-12- precedent notice of default was a condition (Tex. 00082-CV, 2013 WL at *5 for breach of contract. See Arbor’s suit 30, 2014, App.-Houston Apr. [14th Dist.] Corp. Forcenergy TransTexas Gas On pet.) (mem.op.). I would note Inc., shore, 13-02-387-CV, 2004 WL never raised lack of notice of default or Christi, (Tex.App.-Corpus at *8 trial, sought prior abatement and it has denied) 26, 2004, Aug. pet. (mem.op.). resulting shown no harm from lack of no TransTexas, agreements three were con Corp. tice of default. See Lennar v. Mark *1, together. strued Id. at 5. The Letter Co., el Am. Ins. 413 S.W.3d Agreement provided Exchange 2013); Corp. Specialty Fin. Indus. v. XL parties agreed” “understood and Co., (Tex.2009) Inc. 285 S.W.3d 877-78 reassign must within TransTexas three (concluding may deny insurer coverage not, years, only remedy and if it did without a fail showing insured’s specific performance was or breach of con give ure to prejudicial written notice was tract. Id. at *1. Forcenergy urged that to the insurer —such failure was not a ma “subject language Assign to” breach); PAJ, terial Inc. v. Hanover Ins. Oil, Lease, ment of Gas and Mineral when (Tex.2008) Co., 243 S.W.3d 634-35 read in Ex conjunction with the Letter if (holding even the notice is a change Agreement, imposes conditions. coverage, condition the insur notes, Id. at As the Majority *6-7. prejudiced by er must show it was TransTexas court held that notice). receiving knew how draft a However, TransTexas, Finally, Majority Id. at *8. there states that we case, reading” another “reasonable “assume for this as have the must that, Exchange Agreement Letter par parties, that Arbor not recover in covenant, ties intended it as a not a condi breach of perform contract it failed an (citing tion. See id. at *8 precedent.” Schwarz-Jor unexcused condition Arbor dan, Inc., Houston v. Delisle never made such a concession. In arguing Constr. Co., (Tex.1978)). improper, the final ques- DiGiuseppe, inquiry whether precedent was maintained that finding DiGuiseppe “complied with to respect with appropriate never tion was finding the contract” could be considered a action. its breach-of-contract an essential element claim for on is, specific Di performance; that whether Weekley Judgment? to Entitled B. Is Giuseppe “ready, willing, was able to perform” the Id. Being contract. at 593. Weekley entitled Majority holds is The “ready, willing, perform” and able to is an to obtain because Arbor failed judgment to claim specific essential element of the for I The finding disagree. on excuse. jury Here, performance. any finding Id. on fail comply did not to jury found Arbor only if the provi excuse is essential ac Agreement. instruction with the precedent, is found to be a condition sion that Ar question that stated companying I would hold it is not.5 if the complying was excused from bor Further, is af- Majority incorrect to material, was comply was not failure Weekley’s judgment firm favor because waived, anticipatorily repudiat if Weekley Weekley argue did in the trial court es- Weekley or if was agreement, ed the factually or legally the evidence insuf- al of Arbor’s complaining from topped finding support jury’s ficient to in answer Majority comply. failure leged Weekley Question 3 that failed to com- finding Arbor did jury’s that holds Agreement.6 Weekley’s mo- ply with positive finding not a comply not fail verdict, therefore, tion for on the the contract because complied that it with argument re- any sufficiency limits with simply “no” could jury’s answer mean spect Question 3 because did not seek Weekley meet did not its burden finding.7 disregard unfavorable question. The then Majority on that proof 14-94-00480-CV, Bishop, v. Menchaca light Texas analyzes jury finding this (Tex.App.-Houston *1 WL Rule of Civil Procedure and DiGiu (not Apr. pet.) [14th Dist.] Lawler, 269 S.W.3d 588 seppe publication) for when a designated (holding 2008), had the holding Arbor burden motion is judgment, moved this be an excuse. While would prove verdict, “an acquiescense considered holding accurate had the notice subsequent on which will foreclose a attack omitted)). to Arbor’s re (citations been a condition IWhile appeal.” analysis covery, Majority I do not believe agree with we verdict, guess how the reached correct here. material, Additionally, provision were a condi- 1. not or 5. if this waived, precedent, tion I believe that the existence or 2. comply” question ac- Arbor’s “failure to anticipatorily re- if Arbor Windsor Court 3. put Weekley companying on no- instruction pudiated another method as to how Arbor could tice of estopped if Arbor Court is from 4. Windsor excused, therefore, necessary; if such were comply Weekley’s complaining of failure to "necessarily refera- it could be construed as agreement. with the to the of excuse ble” defense Answer "Yes” or "No.” Answer; Yes Question 3 asked: comply with the Did Homes fail to 7.Weekley’s challenged for JNOV motion agreement? exclusivity-of-remedies profits lost and the Homes is are instructed You arguments. failure, complying if excused from any, was Questions 3 and 4 jury’s jury’s province answers must mind that it is the sole given meaning, considering the state of evaluate credibility the of witnesses and to record as a whole. See 7979 Airport weight the determine the to it. attached See Procedures, Garage, Sys., v. Dollar Rent A Car Envtl. Guidry, L.L.C. Inc. v. 282 Inc., 488, 602, (Tex.App. 245 S.W.3d 504-05 S.W.3d 626 (Tex.App.-Houston [14th denied) 2007, 2009, denied). Houston pet. pet. [14th Dist.] Dist.] We review the (holding appellate ignore court in light evidence most favorable to the jury they answers where can challenged finding be “recon indulge every and rea evidence, light pleadings ciled in sonable inference support that would it. submission, Wilson, 802, the manner of and the other City Keller v. 168 S.W.3d of whole.”) (Tex.2005). findings considered as “When 822 We credit favorable evi questions are amenable to more than if dence a reasonable fact finder could and construction, adopt one reasonable we disregard contrary evidence unless a rea construction that avoids conflict.” See sonable fact Ja finder could not. Id. at 820. (Tex. 660, Alsayyed, bri v. 145 S.W.3d 668 The evidence legally sufficient if it would App.-Houston 2004, no pet.). [14th Dist.] enable a reasonable per and fair-minded son to reach the verdict under review.

Additionally, I would hold the trial court granting Weekley’s erred in motion to en- We cannot substitute our judgment for ter judgment on the verdict and sustain that of the if jury the evidence within falls appellant’s second issue. the “zone of disagreement.” reasonable Id. will uphold jury’s finding We if Analysis

III. of Motion FOR JNOV more than a scintilla competent evi- dence supports it and affirm the JNOV I also Majority dissent because the does only when there is no support evidence to appellate address Arbor’s complaint jury’s finding or if the evidence estab- concerning the “alternative relief’ in the contrary lishes a answer as a matter of final judgment. This issue must be ad Tanner, 830; law. See 289 S.W.3d Hes- dressed because it is unclear from the final Cos., Inc., 100, ter v. Friedkin 132 S.W.3d judgment what relief the trial court intend 2004, (Tex.App.-Houston 105 [14th Dist.] grant. ed to Scaffolding, See In re United denied). pet. Inc., (Tex.2012) (dis 377 S.W.3d 690 approving language because it “and/or” B. Did the Provide Exclu- confusion). ambiguity leads to

sive Remedies? A. Standard of Review argues Arbor improper JNOV was

We review a exclusive; JNOV under no-evidence because remedies are not standard, meaning we “credit specifically, argues, evidence fa jury and the voring found, jurors verdict reasonable required accept Arbor was not could, disregard contrary $500,000 damages evidence un in money earnest less jurors reasonable could not.” asserting Tanner lieu of the common law breach- Co., v. Nationwide Mut. Fire remedy. Weekley argued Ins. 289 of-contract (Tex.2009) S.W.3d (citing City 830 Paragraph remedies set forth in Wilson, above) Keller v. (quoted 168 S.W.3d are the exclusive remedies 2005); Ready Arbor, Cent. precluded Mix Concrete Co. v. available to Islas, (Tex.2007)). breach-of-contract action. ar- Our review legal sufficiency gued allowed verdict, evidence supporting keeping “pursue any remedy provided by other law from the title remedy, deposit sive provide did not equity,” but liquidated damages” seller’s company as to Arbor. option same as its to receive those funds entitled seller may be in a contract Remedies set forth remedy); Crow-Billingsley Sto exclusive or exclusive. Pelto permissive either Creek, Partners, McKinney Ltd. v. ver Corp., 804 & Gas Corp. v. CSX Oil Oil 05-09-00962-CV, L.P., 2011 WL (Tex.App.-Houston [1st Aug. (Tex.App.-Dallas at *7-8 denied); 1991, Vandergriff writ Dist.] 2011, (holding by pet.) (mem.op.) no Bank, Co., 613 v. Forum Inc. Chevrolet the terms “sole and exclusive reme using 68, Worth (Tex.Civ.App.-Fort 70 S.W.2d recovery dy,” parties the intended that writ). ren 1981, “A construction which no remedy, money was the thus earnest remedy exclusive should specified the ders action); a breach-of-contract precluding par intent the unless the not be made Inc., No. 10-06- Group, v. WRS Ganske clearly exclusive is indicated ties that be * 00050-CV, 1147357, at 3-4 2007 WL be Every clause must or declared.” Id. 2007, 18, pet.) no (Tex.App.-Waco Apr. objectively rather meaning, viewed given where terms (mem.op.) (holding that even clear Id. it is subjectively. Unless than “shall” be agreement provided parties particular that a parties intended injunc- or specific performance entitled exclusive, party in the contract is remedy both, remedies did not tive relief or those the law any remedy which may pursue suit); Allen preclude a breach-of-contract set in addition to remedies affords 12-03-00140, 2004 WL King, v. Int’l, v. in the contract. See Co. forth 4N * 11, 252097, 2 Feb. (Tex.App.-Tyler Auth., 860, 863 Metro. Transit 2004, (mem.op.) (concluding where pet.) no 2001, pet de (Tex.App.-Houston [1st Dist.] parties in language indicating no there is nied) v. Sw. (citing Accent Builders Co. exclu remedies were tended contractual 106, 109 Sys., 679 S.W.2d Concrete sive, any can action avail pursue n.r.e.)). 1984,writ ref 'd App.-Dallas remedy). in to obtain a able order provides a mere fact that a contract Myriad Development, relied on of remedies does remedy or set particular Alltech, Inc., F.Supp.2d 817 Inc. v. remedies, there other unless preclude (W.D.Tex.2011), analyzed an 964 parties’ which evidences language reme- provisions two agreement with remedy is the ex particular that a intent and “breach.” event of “default” dies Young, clusive one. See could be provisions held the two Bifano The court (Tex.App.-Corpus Christi S.W.2d in one “default” as used harmonized n.r.e.) where lease (holding ref 'd writ breach” meant “material paragraph “shall” termi provided landlord agreement para- the second that the term “breach”-in lease, two other alter pursue nate the or Id. breach.” meant “immaterial graph had which the nate remedies Myriad had interpretation, this Under eliminated, “(1) landlord through marked the material treat to either per- common cease pursuing foreclosed from total breach and was not breach as a (2) contract, agree or treat remedy for breach of lease law formance under breach, ment); Corp. partial Acquisition also the material breach as see Winston contract, Inc., 436 Apartments, performance Valley v. Blue continue under by the damages caused (Tex.App.-Dallas Jun. and sue for Thus, Myriad permitted language Id. (holding that the breach.” pet.) contract, re- was not but to cancel agreement “seller terminate so, demonstrating it was retain, to do quired exclu as seller’s sole and receive However, remedy. an Id. once performance. exclusive time for The Agreement contract, Myriad chose to cancel the it was provided Weekley also “shall” be enti- remedy “pursue any limited to the of cancellation be- tled to remedy provided other provided: the contract “In the event equity.” cause law or in There nowas similar ... cancellation shall for Arbor’s op- remedies. The remedy party....” sole available to either tional remedies afforded did not added). (Emphasis Id. at Clear- render those offered to Arbor “sole and ly, cancellation became exclusive reme- exclusive” language because that is not dy because the stated it was Agreement. found “The mere fact remedy. the sole See id. at 966. that the contract a particular includes rem- edy does not mean remedy that such language There is no similar Dev., Myriad exclusive.” See Weekley. between Arbor and F.Supp.2d at 964. DiGiuseppe, (noting 269 S.W.3d at 597 Therefore, that, Paragraph because party expressly where waived did not damages, to claim state that the remedies to be remedies were afforded parties either of the were the “sole terminating limited to either contract and exclusive” receiving money of earnest or seek remedies either could utilize in refund breach, the event of a ing specific performance); to enforce Faw and there was no cett, additional language limiting Ltd. v. Idaho Northern & Pac. R.R. remedies to Co., contract, those the I would (Tex.App.-East hold Arbor denied) was pet. (confirming land that entitled maintain its breach-of-con- tract action. provi where the crafted a default remedy,” sion to be the “sole and exclusive Factually Legally-Suf- C. Was there afforded); only it the presented remedies Damages? ficient Evidence of Bifano, (holding 665 S.W.2d at 539 that agreement provided even where landlord Arbor next asserts the im- JNOV was have the option pursue any “shall” one to, proper because it is entitled and there remedies, or more the remedies were not of, is evidence damages jury the actual the exclusive); Ganske, 2007 WL at Further, awarded. argues Arbor it was (holding language *3-4 is not exclusive not retaining money limited to the earnest exclusive, language stating because no it is $500,000 is, liquidated damages; of that even agreement provided “par where the pursue was entitled to its common law specific perform ties shall be entitled to remedy and recover “benefit of the bar- relief....”); injunctive ance hereof or Al JNOV, gain” damages. In its motion for len, *1, 2004 WL at 3 (concluding Weekley argued that there was no evi- providing purchaser support jury’s dence to determination and, “shall” be allowed to cure time however, damages; of it does not make cure, agreement there is no “shall termi Rather, that argument appeal. on here nate preclude and be void” does not reme Weekley jury’s finding contends contract). dy for breach of that Arbor did not make an informed elec- tion of remedies is incorrect as a matter of Here, Agreement provided that in law; is, election of remedies fore- default, the event of a both Arbor and recovery damages. closes the of actual I Weekley “shall” do of the following: one will arguments. address both choose to terminate (or awarded) retain Money; the Earnest On the damages, jury issue of heard seek specific performance; or testimony expert, extend the of Arbor’s Scott C. Mitchell, report, Mitchell of damages In his Mitchell calculated the amount C.P.A. lots, upon of He of the unsold damages. plus his calculation based cost outlined amount, thirty-five remained interest on that less the fifteen of lots reduction noted foreclosure, Sep- of the earnest money. as of the date of indebtedness and unsold were found damages Fourteen of the lots amount of tember $989,567. $140,000; at This priced one was award within the priced fact, damages $170,000. range sought. revenue from those lots Arbor The lost $2,130,000. figure represented Mitchell the total calculated to be amount of damages interest on less the sought, accrual amounts determined Therefore, $987,854. of ad valorem taxes and unreimbursed ex this lost revenue was penses Weekley it had damages calculation was claimed advanced gross his $3,117,854. from that on Arbor’s behalf. The trier of has He then deducted fact ($500,- money damages earnest discretion to award total the amount of within 000) on range presented City of the indebtedness of evidence at trial. relief ($1,225,391), resulting County in “net Houston v. Harris Ad the loan Outdoor Ass’n, $1,392,463. not- (Tex.App. Mitchell also ver. damages” denied). $355,062 rep- that a Houston writ [14th Dist.] ed reduction Thus, legally-sufficient I conclude interest at 8% on lost revenue evi resented supports jury’s from the date of foreclosure to dence award of dam figure ages. trial reduce the total dam- date of would $1,037,401.8 not figure He did

ages to D. Election of Remedies necessarily nec- agree that reduction was report included it in at essary, JNOV, but he his in its for Also motion Weekley cross- request of Riddle. Agreement provided asserted the exclusive Mitchell, any but did not offer examined remedies, that retained the earnest and, its behalf. expert therefore, witness on it “is money; estopped contrary. to arguing gist from of Question In was asked to Weekley’s argument appeal appar- on is money com determine what sum of would ently that Arbor elected to terminate the Weekley’s to Arbor for failure pensate money; and retain the earnest contract comply. were as profits Lost defined therefore, pursue it could to not elect dam- profits a those that were natural conse fact, suit. In ages in its breach-of-contract quence Weekley’s comply, of failure to Question “as- Weekley contends that 6 cost, any, required complete “less the if an and sumed” Arbor made such election Agreement.” “Re performance under is jury’s “no” answer incorrect as lost not covery profits require of does disagree. a of law. I matter susceptible the loss be exact calcula above, Assoc., Agreement v. Ho did Parkway tion.” Dental P.A. As discussed L.P., pursuing Arbor from its com- Huang Prop., preclude & 391 S.W.3d 608 not remedy no (Tex.App.-Houston mon law for breach contract [14th Dist.] profits op- Lost reflect the amount of none the different remedial pet.). because net to a and Arbor were damages provided the loss of income tions Thus, business, less to that written as “sole and exclusive.” one expenses attributable Arbor was to “termi- activity. (citing Miga option See id. available to business (Tex.2002)). Jensen, Agreement and retain the Ear- 96 213 nate this S.W.3d accrued; however, damages he did not attach a valua- 8. Welch testified the calculation did opinion. give had “credit” for all interest tion to 156 liquidated Money damages.” remedy

nest different and inconsistent for the However, provision no same Krobar wrong.” Drilling, there was in the (citing Fina Supply, Arbor was S.W.3d Inc. v. by required Bank, Abilene Nat’l do so. (Tex.1987)). purpose

The core election-of-rem- to be prevent edies doctrine seems hold, therefore, I would the Agreement abusing party judicial process from provide any remedy did not “sole was recovery by against obtaining one de- exclusive” Arbor was entitled to asserting one by fendant set of facts and seek damages in breach-of-contract ac- a second suing then later defendant tion, which inconsistent with seeking recovery denying alleged result, remedy. As a there other upon facts which the recovered election of remedies as matter law. the first suit. Because its purpose Arbor did not choose one of the non-exclu- rule, different than the one-satisfaction options sive forth in Agreement. set doctrine, the election-of-remedies when Rather, Arbor chose to sue recover subsequent applies, bars claims even damages by Weekley’s occasioned breach recovery sought subsequent of contract. recovery past case when added sum, I appellant’s would sustain first would not exceed amount of the issue. plaintiffs loss. Contractors, Horizon Inc. v. Aon Offshore IV. Conclusion Inc., Tex., Risk Servs. respectfully I dissent I because construe (Tex.App.-Houston pet. [14th Dist.] covenant, as a not a denied). Majority’s con- requires Election of remedies that a par struction of the as a condition two ty choosing one of inconsistent but creates a result which is unreasonable procedure modes of coexistent and relief. operates as a forfeiture —all of which are Ormiston, v. Drilling, Krobar L.L.C. 426 to be a interpre- avoided when reasonable (Tex.App.-Houston [1st exists, Therefore, tation as does here. denied). 2012, pet. Dist.] The election-of- to the final judgment may extent the operates preclude remedies defense re construed the trial granting court (1) when party successfully lief a exercises Weekley’s judgment, motion to enter I (2) an informed choice between two or trial court would hold the erred in award- (3) remedies, rights more or states of facts ing judgment Weekley’s in favor. (4) are which so inconsistent as to consti I Additionally, believe the Majority is injustice. Bocanegra tute manifest v. Aet required analyze portion of the final Co., (Tex. na Ins. 605 S.W.2d Life judgment can be grant- construed as 1980). Remedies are inconsistent when ing I Weekley’s JNOV. would hold the of affirming one the remedies results from trial court in relief granting erred the transaction and the other results from because the remedies was not disaffirming (citing the transaction. Id. exclusive, sup- and there evidence to Parlier, Foley v. port the of dam- jury’s profits award lost 2002, writ) App.-Fort (Emphasis Worth ages attorneys’ and fees. added)). Election of remedies is intended prevent “to who has of Accordingly, ap- obtained I would sustain both issues, specific remedy pellant’s form of from reverse the court’s obtaining trial Ar- render judgment, damages following: actual recover

bor $987,567; fees attorneys’ of in the amount $245,337 for incurred of the amount in $50,000 court; the trial representation appeal fees for its successful attorneys’ $25,000 appeals; the court for petition files a event Texas; Supreme in the Court review on the $25,000 of a brief preparation Texas; Supreme in the Court merits comple- $25,000 argument and for oral Supreme proceedings tion of all Texas, on Arbor’s all conditioned Court court costs and appeal, plus success on by law. as allowed interest post-judgment PRIDECO, INC. GRANT Aggregate Plant Products

Co., Appellants L.L.C., Empeiria EMPEIRIA CONNER Conner, Aubrey L.L.C., II Conner Fund, Mezzanine Legg Mason SBIC L.P., Fund, L.P., AEA AEA Mezzanine L.P., Fund, (Unleveraged) Mezzanine L.P., Holdings, Joe Frontier Paul Suarez, Dehaven, Alex Fiamingo, Wes L.L.C., in its Empeiria Conner representative, capacity as the seller Appellees

NO. 14-13-00644-CV Texas, Appeals Court Dist.). (14th Houston 19, 2015. filed March Opinions

Case Details

Case Name: Arbor Windsor Court, Ltd. v. Weekley Homes, LP

Court Name: Court of Appeals of Texas

Date Published: Mar 17, 2015

Citation: 463 S.W.3d 131

Docket Number: NO. 14-13-00480-CV

Court Abbreviation: Tex. App.