This case involves an option contract to purchase real property. Hugh L. Scott, the optionee, sued Jim R. Sebree and Chester Hood, 1 the optionors, on several 'theories seeking damages or, alternatively, specific performance. Following a jury trial, the trial court rendered judgment awarding Scott *366 specific performance, attorney’s fees, and costs of court. Both parties appeal. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Sebree and Hood each owned an undivided one-half interest in a piece of real property located in Williamson County, Texas. On February 1, 1993, Sebree and Hood entered into a “Lease-Purchase Agreement” (the “Lease”) with Scott whereby Scott would lease the property with an option to purchase at any time for $150,000, less the monthly rental payments he had made up to the date of purchase. The parties later amended the Lease to allow Scott to sublease the property to a third party and to increase the amount of monthly rent paid by Scott. The Lease term was three years; the option to purchase therefore expired on February 1,1996.
Approximately one month before the expiration of the Lease, Scott and Hood discussed Scott’s desire to exercise his purchase option; however, the parties disagree on the content of this discussion. Scott testified that he requested Sebree and Hood to prepare a title policy and general warranty deed as required by the Lease terms. Hood, on the other hand, testified that Scott indicated he did not want a title policy because he had previously reviewed the title in connection with his sublease and was satisfied. The parties do agree that Scott did not speak to Sebree directly about Scott’s intention to exercise the option.
Sometime in January 1996, Scott contacted a title company to order his own title commitment. Through this process, Scott learned of various hens and encumbrances on the property. Scott complained to Hood that the hens were clouds on the title and must be released before closing. In the meantime, Sebree had contacted his own title company to inquire about a title commitment, although he never actually ordered one. Closing was set for February 1, 1996, but was apparently canceled. The parties disagree as to who canceled the closing: Scott testified that Hood canceled because Hood and Sebree could not produce clear title as required by the Lease terms; Hood testified that Scott canceled. In any event, title to the property was not passed to Scott on February 1,1996, and the option expired. In May 1996, Hood conveyed his one-half interest in the property to Scott and was dismissed from this lawsuit prior to trial.
At trial, Scott argued that his failure to timely exercise his option was due to Se-bree’s conduct. Scott relied on the following language found in the Agreement: “Lessor’s [sic] affirm that the property is currently free and clear of any and all liens, indebtedness, lawsuits, or other encumbrances ... and that they are obligated to maintain this status-quo throughout the term of the lease.” Because the property had unreleased liens throughout the lease period, Scott claimed he was precluded by Sebree’s conduct from exercising his option and that Sebree had committed fraud. Sebree’s counter-argument was two-fold: first, that he had no knowledge of the liens when he signed the Lease and did not learn of them until January 1996; second, that even though releases of the hens had not yet been filed, the debts secured by the liens had already been paid in full and thus would not hinder closing. Sebree filed a counterclaim against Scott for breach of contract.
The case was submitted to a jury on Scott’s theories of (1) breach of contract; (2) statutory fraud in a real estate transaction, Tex. Bus. & Com.Code Ann. § 27.01 (West 1987) (“statutory fraud” or “section 27.01”); and (3) violations of the Deceptive Trade Practices-Consumer Protection Act, Tex. Bus. & Com.Code Ann. §§ 17.41-63 (West 1987 & Supp.1999) (“DTPA”). Rejecting Se-bree’s claim that Scott had breached the contract, the jury found that Scott’s failure to exercise his option was excused by Sebree’s conduct. Further, Scott obtained jury responses supporting his claims for breach of contract, statutory fraud, and DTPA violations, including findings of additional damages under the DTPA claim and exemplary damages under the statutory-fraud claim. Because the parties stipulated as to the amount of actual damages, no jury question was submitted on that issue.
In his “Motion to Sign Judgment,” Scott requested that the trial court award him *367 specific performance in lieu of monetary damages, but also requested other damages recoverable under section 27.01: attorney’s fees, costs of court, exemplary damages, expert witness costs, and deposition copy costs. 2 In response, Sebree argued that specific performance is not available under section 27.01. The trial court apparently agreed, limiting damages to those available for breach of contract — specific performance, attorney’s fees, and costs of court. The court declined to award the additional types of damages available under section 27.01 — exemplary damages, expert witness fees, and deposition copy costs. Both Scott and Se-bree perfected appeals.
In his appeal, Scott argues that the trial court erred in rendering judgment for damages under a breach-of-contract theory rather than allowing him to elect specific performance in lieu of monetary damages as his remedy under his statutory-fraud cause of action. Scott argues he was thus erroneously deprived of the exemplary damages, expert witness fees, and deposition copy costs to which a party recovering under section 27.01 is entitled.
In his capacity as appellant, Sebree presents three issues regarding the breach-of-contract theory on which the judgment favoring Scott was ultimately based: (1) whether there is any evidence to support the submission of the jury question on Sebree’s “conduct” excusing Scott’s failure to exercise his option; (2) whether Scott is entitled to attorney’s fees if he was not excused from exercising his option; and (3) whether the trial court erred in refusing to submit Sebree’s counterclaim against Scott for breach of contract. In his capacity as appellee, Sebree also raises three cross-points concerning the sufficiency of the evidence to support the jury’s fraud and DTPA findings that ultimately were not the foundation of the judgment: (1) whether there is legally sufficient evidence to support the jury’s finding that Sebree committed statutory fraud; (2) whether there is sufficient evidence to show Sebree’s conduct was the proximate cause of actual damages to Scott; and (3) whether there was legally or factually sufficient evidence to support the jury’s finding that Se-bree acted with “actual awareness” to support an award of exemplary damages. 3
DISCUSSION
SCOTT’S ISSUE PRESENTED
The main issue for this Court’s consideration is whether specific performance is available as a remedy for statutory fraud. Section 27.01 of the Texas Business and Commerce Code provides a statutory cause of action for fraud in real estate transactions. See Tex. Bus. & Com.Code Ann. § 27.01 (West 1987). The statute provides that a person who makes a false representation of a past or existing material fact in a real estate transaction is liable to the person defrauded for “actual damages” as well as “reasonable and necessary attorney’s fees, expert witness fees, costs for copies of depositions, and costs of court.” Id. § 27.01(b), (e). If the false representation is made with actual awareness of its falsity, exemplary damages may also be recovered. Id. § 27.01(c).
Sebree does not contend that Scott is barred from electing specific performance as a remedy in this case. Rather, he complains that Scott is attempting to “mix and match” remedies. He asserts that Scott had to make an election: either elect statutory fraud and recover actual (monetary) damages, exemplary damages, attorney’s fees, expert witness fees, deposition copy costs, and court costs, or, on the other hand, elect breach of contract and recover specific performance, attorney’s fees, and court costs. Sebree argues that Scott may not elect specific performance, which Sebree asserts is only a remedy for breach of contract, and couple it with the special types of damages available under section 27.01.
*368 Scott concedes that section 27.01 does not expressly provide for the remedy of specific performance in lieu of monetary damages. Nonetheless, Scott argues that an award of specific performance is consistent with a finding of statutory fraud. Under the facts of this case, we agree that specific performance was available to Scott in lieu of monetary damages as a remedy for his statutory-fraud cause of action.
Equitable Remedies Under Section 27.01 in Lieu of Actual Damages
Section 27.01(b) provides that a person who commits actionable statutory fraud is liable to the person defrauded for “actual damages.” Tex. Bus. & Com.Code Ann. § 27.01(b) (West 1987). In the context of section 27.01, this phrase has been interpreted to mean “such damages as result directly, naturally and proximately from fraud.”
El Paso Dev. Co. v. Ravel,
There are two alternative measures of damages for common-law fraud: the out-of-pocket measure and the benefit-of-the-bargain measure.
See Formosa Plastics Corp. USA v. Presidio Eng’rs,
We do not believe that by using the term “actual damages” in section 27.01 the legislature intended to preclude a defrauded party from utilizing an appropriate equitable substitute for out-of-pocket or benefit-of-the-bargain damages. Rescission and specific performance are equitable remedies used as substitutes for monetary damages when such damages would not be adequate.
See Humphrey v. Camelot Retirement Community,
Our belief that equitable relief is compatible with the “actual damages” provision of section 27.01 is supported by the holding in
Clem v. Evans,
Also supporting equitable relief within the context of statutory fraud is
Bennett v. Mason,
We are aware that Clem, Bennett, and Maeberry all involve the election of the equitable remedy of rescission rather than specific performance. We have no difficulty, however, in applying the same logic to specific performance. Both remedies are equitable substitutes for actual monetary damages: rescission takes the place of out-of-pocket damages, while specific performance takes the place of benefit-of-the-bargain damages. We therefore hold that a defrauded party may elect specific performance as a remedy under section 27.01 in lieu of monetary damages where the facts of the case require specific performance to ensure a just result.
Specific Performance Is the Most Equitable Remedy Under the Facts Presented
Because the facts in the instant case are somewhat unique in the context of statutory fraud, the most equitable remedy to adequately compensate Scott for Sebree’s fraudulent acts is “benefit of the bargain” in the form of specific performance. The record shows that the value of the property in issue increased significantly from the date the parties signed the Lease and the date the option expired. Because of the increase in value, Scott’s loss includes the lost profits he would have realized had he not been precluded from exercising his option by Sebree’s fraud. 6 However, we believe that simply allowing Scott to recover damages in the form of lost profits would not make Scott whole and would not effectuate a just result.
It is well understood that specific performance is more readily available as a remedy for the sale of real estate than for the sale of personal property.
See
67 Tex. Jur.3d
Specific Performance
§ 62 (1989) (and au
*370
thorities cited therein). This is because damages are generally believed to be inadequate in connection with real property.
See id.
Although specific performance is not a matter of right, it is often granted where a valid contract to purchase real property is breached by the seller.
See Kress v. Soules,
Allowing Scott to elect specific performance under his statutory fraud cause of action will not result in double recovery. Scott is not requesting both monetary damages and specific performance; his request is for specific performance in lieu of monetary benefit-of-the-bargain damages. We hold that specific performance is consistent with section 27.01 and that, under the facts presented here, Scott was entitled to elect specific performance in lieu of monetary damages under his statutory-fraud cause of action.
Expert Witness Fees and Deposition Copy Costs
Section 27.01(e) provides that any person committing statutory fraud is liable to the defrauded party for “reasonable and necessary” expert witness fees and costs for copies of depositions. Tex. Bus. & Com. Code Ann. § 27.01(e) (West 1987). Scott asks this Court to award $1,800 for expert witness fees and $545.22 for deposition copy costs, both of which the trial court denied. Because we have held that Scott may elect specific performance under section 27.01, Scott is entitled to these expenses if they were “reasonable and necessary.” Scott did not request the submission of jury questions on these issues, however, so we are authorized to render judgment that he recover those amounts only if the record contains conclusive proof of their reasonableness and necessity.
After a careful review of the entire record, we are unable to find any evidence, much less conclusive evidence, regarding either the amount of deposition copy costs or their reasonableness. Further, we find no evidence of the reasonableness or necessity of the $1,800 expert witness fees. Although the record does show that the parties stipulated that the expert in question
charged
Scott $1,800 for his services, there is no evidence that this amount was reasonable or necessary. Recovery of expert witness fees will be denied where there is evidence of an amount charged or paid, but no evidence that the charges are reasonable.
See Valdez v. Valdez,
SEBREE’S CROSS-POÍNTS
Our holding that the remedy of specific performance in lieu of monetary damages is available under section 27.01 does not end our inquiry. Having determined that Scott may elect specific performance under his statutory fraud cause of action, we now turn to Sebree’s cross-points concerning the legal sufficiency of the evidence to support the jury’s findings that Sebree committed statutory fraud and acted with “actual awareness.”
In deciding a no-evidence point we must consider only the evidence and inferences tending to support the finding of the trier of fact and disregard all evidence and inferences to the contrary.
Garza v. Alviar,
Findings of Fraud
Sebree argues that the evidence regarding his failure to comply with the Lease creates liability sounding only in contract. Therefore, he argues, there is no evidence supporting a finding of fraud. We disagree. The Texas Supreme Court recently confirmed that the legal duty not to fraudulently induce someone to enter into a contract is separate and independent from any duties established by the contract itself.
See Formosa Plastics,
In the present case, the record contains ample evidence that Sebree committed statutory fraud. To maintain an action for fraud in a real estate transaction, section 27.01 requires a false representation made to induce someone to enter into a contract, reliance by the defrauded person, and resulting damages. See Tex. Bus. & Com.Code Ann. § 27.01 (West 1987). Finding evidence in the record on each required element, we overrule Sebree’s first cross-point.
In cross-point two, Sebree argues that his conduct was not the “cause in fact” of Scott’s failure to exercise his option. However, the jury was not required to make a finding on proximate cause. A defrauded party is entitled to those damages resulting directly and naturally from fraud as general damages.
El Paso Dev. Co.,
Finding of Actual Awareness Supporting Exemplary Damages
In his third cross-point, Sebree argues that the evidence was legally insufficient to support the jury’s finding that he acted with “actual awareness.” We agree. In order to recover exemplary damages under section 27.01, the defrauded party must show that the defrauding party had actual awareness of the falsity of his representation. See Tex. Bus. & Com.Code Ann. § 27.01(c) (West 1987). After finding that Sebree had committed fraud against Scott, the jury found that Sebree had “actual awareness” of the falsity of the representation and assessed $50,000 in exemplary damages.
The Texas Supreme Court has recently outlined what is required to find that a party acted with “actual awareness” in a DTPA case:
“Actual Awareness” does not mean merely that a person knows what he is doing; rather, it means that a person knows what he is doing is false, deceptive, or unfair. In other words, a person must think to himself at some point, ‘Tes, I know this is false, deceptive, or unfair to him, but I’m going to do it anyway.”
St. Paul Surplus Lines Ins. Co. v. Dal-Worth Tank Co.,
After a careful review of the record in the instant case, we find an absence of legally sufficient evidence to support the jury finding that Sebree acted with “actual awareness” of the falsity of his misrepresentations regarding the existence of unreleased liens. The only evidence arguably supporting the jury’s verdict is the following portion of Se-bree’s testimony:
Q. Haven’t you previously testified on several occasions that you knew that the liens were not released on February 1st, 1993?
A. If that’s what I testified to, then at that time that’s what I believed in. It’s hard to remember, you learn so much stuff, you know, from one point to the other point at which point did you learn that stuff.
Q. Well, on February 1st, 1993, being aware that those liens had not been released, did you think about disclosing that fact to Mr. Scott?
A. The fact that I did know that we had paid for the property and that I could prove that, I was not concerned with disclosing something that was totally irrelevant to Mr. Scott.
This testimony does nothing to establish that Sebree had actual awareness that the liens *372 were not released on the initial date of the Lease. Sebree does not acknowledge that his prior deposition testimony indeed confirms his awareness of the liens on the date of the Lease; rather he states that if that was his prior testimony, then he believed it to be true at the time. Because the referenced deposition testimony was never introduced in evidence, we are unable to determine whether Sebree in fact made prior statements concerning his knowledge of the falsity of his representations to Scott. Without the deposition testimony, we are unable to say that there is any evidence that Sebree said to himself, ICYes, I know this representation is false, but I’m going to make it anyway.” On the contrary, all of the evidence supports a finding that Sebree did not have “actual awareness” of the liens until 1996, shortly before the option was to expire.
Because the evidence supporting the jury finding of “actual awareness” on the part of Sebree does not rise beyond a mere scintilla, we sustain. Sebree’s third cross-point and conclude that the trial court correctly declined to award Scott exemplary damages.
SEBREE’S ISSUES PRESENTED
Sebree, in the posture of appellant, raises three issues for this Court’s consideration. We find all three arguments to be without merit.
Sebree first argues that either there was no evidence to support submitting the jury question on Sebree’s “conduct” or that the evidence was factually insufficient to support the jury’s response. The instruction submitted to the jury asked: “Was Scott’s failure, if any, to exercise the option due to the conduct of Sebree?” Sebree’s complaint focuses on the term “conduct” as used in the jury question. Sebree argues that because he had “no duties to perform” under the Lease until the option was exercised by Scott there was no “conduct” that could have been the basis for the jury question. We do not read the term “conduct” so narrowly.
Equity excuses strict compliance of an option contract where some act such as a misleading representation by the optionor prevents the optionee from exercising the option right.
See Cattle Feeders, Inc. v. Jordan,
When reviewing a jury verdict to determine the factual sufficiency of the evidence, we must consider and weigh all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.
Cain v. Bain,
Sebree next argues that if this Court agrees with his first issue, and thus finds that there was no or insufficient evidence that Sebree’s conduct excused Scott from failing to exercise his option, then Scott is not entitled to attorney’s fees. Because we find Sebree’s argument as to his first issue to be without merit, we need not address this issue.
Finally, Sebree asserts that the trial court erred in refusing to submit a jury question on his counterclaim for Scott’s alleged breach of contract. Sebree’s counterclaim was based on a clause in the Lease requiring Scott to obtain $1,000,000 of liability insurance on the property. The record shows that Scott did not maintain the requisite insurance for more than a year after the Lease was signed. Nonetheless, the trial court did not err in failing to submit the question to the jury. The essential elements of a suit for breach of contract are that a valid contract existed, that the plaintiff performed, that the defendant breached, and that the plaintiff has suffered resulting damages.
See Wright v. Christian & Smith,
CONCLUSION
Having found that, although Scott may recover specific performance under section 27.01, there is legally insufficient evidence to support awards of exemplary damages, expert witness fees, and deposition copy costs, we affirm the judgment of the trial court in all respects.
Notes
. Hood was dismissed from this lawsuit before the case went to trial.
. Scott’s motion did not seek any damages in connection with the jury’s DTPA findings, and he does not seek any such relief in this appeal.
. Because Sebree perfected his own appeal, we conclude that placing cross-points in his appel-lee's brief was an acceptable way of presenting these issues to this Court. See John Hill Cayce, Jr., Anne Gardner, & Felicia Harris Kyle, Civil Appeals in Texas: Practicing Under the New Rules of Appellate Procedure, 49 Baylor L.Rev. 867, 962-65 (1997).
. This case is particularly persuasive considering it was decided under an earlier statutory-fraud provision
specifically defining
actual damages as the difference between the value of the property as represented and as acquired. Act of March 11, 1919, 36th Leg., R.S., ch. 43, §§ 1-3, 1919 Tex. Gen. Laws 77, 78 (Tex.Rev.Civ. Stat. Ann. art. 4004, since repealed and codified at Tex. Bus. & Com.Code Ann. § 27.01 (West 1987)).
But see Bush v. Gaffney,
. We also note that since the holding in
International Bankers Life Insurance Co. v. Holloway,
.The record also shows that the property is currently subject to a lease under favorable terms to the property owner. Thus, in order to receive the fall benefit of his bargain in money, Scott would actually be entitled to an amount for lost profit on the land plus the monetary benefits of the lease.