Internacional Realty, Inc. v. 2005 RP West, Ltd.

Opinion issued October 7, 2014

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-12-00258-CV

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INTERNACIONAL REALTY, INC., Appellant

V.

2005 RP WEST, LTD., Appellee

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Case No. 08-DCV-166063

OPINION

Appellee 2005 RP West, Ltd. sued appellant Internacional Realty, Inc. for

breach of a real-estate purchase agreement. The dispute in this appeal primarily

concerns the interpretation of the contract to determine what remedy was available

to the seller for a breach by the buyer. The trial court rendered judgment on the

jury verdict, awarding the buyer $4 million in damages, plus pre- and post-

judgment interest and attorney’s fees, and the seller challenges that judgment on

appeal.

We affirm.

Background

Hugh Caraway, Jr. was the owner of Internacional Realty, Inc. (“IRI”).

Beginning in 1993, IRI developed and purchased apartment complexes with

Caraway’s equity and third-party financing. At one point, IRI managed “about

10,000 apartment units in five or six states.” However, IRI sold many properties

between 2006 and 2008, and by the time of trial in this case, its primary business

involved “payroll servicing” and ownership of master leases. Caraway was also

involved with two related companies: Internacional Realty Management, which

was primarily engaged in third-party property management; and Internacional

Realty Mortgage Investors, which arranged real-estate financing for IRI and others.

Robert Wilson is a real-estate developer. Over more than 40 years of

experience in the real-estate business, he developed approximately ten apartment

complex properties in Texas, including two in Fort Bend County: The Reserve and

The Villas. Wilson also worked in mortgage banking for over 25 years.

2

Caraway and Wilson met in the 1980s. Before the transaction that gave rise

to this case, Caraway bought three properties developed by Wilson, including The

Reserve apartment complex. Both Caraway and Wilson contemplated that The

Reserve was Phase I of an overall development plan, which would culminate with

Phase II, The Villas, to be located near The Reserve. Wilson formed 2005 RP

West, Ltd. (“RP West”), a single-asset limited partnership, for the purpose of

developing and building The Villas. Wilson is both a limited partner of RP West

and the president and sole employee of Wilson RP West GP, LLC, which serves as

the general partner of RP West.

In March 2006, Carraway and Wilson signed a contract, the “Villas

Agreement.” Pursuant to this agreement, RP West agreed to build The Villas, and

IRI agreed to purchase that complex upon completion for $21.5 million, with

closing to occur no later than April 1, 2008. The Villas Agreement was not made

contingent upon IRI securing financing. As required by the contract, IRI deposited

$215,000 in earnest money with a title company.

The Villas Agreement provided remedies for both parties in the event of a

breach of the agreement by the other. In the event that IRI breached the agreement

to purchase The Villas, RP West could elect one of the following three “sole and

exclusive remedies”: “(i) terminate this Agreement and thereupon shall be entitled

to the Earnest Money as liquidated damages (and not as a penalty), or (ii) put the

3

Property to Purchaser and sue Purchaser for the Purchase Price, or (iii) pursue the

remedy of specific performance of Purchaser’s obligations under this Agreement.”

The agreement stated that the parties had provided an option for liquidated

damages “because it would be difficult to calculate, on the date hereof, the amount

of actual damages for such breach, and Seller and Purchaser agree that these sums

represent reasonable compensation to Seller for such breach.” In addition, if the

“put” remedy were elected, the contract specified that RP West, as seller, would

have “all rights of offset against Purchaser to which Seller may be entitled at law

or in equity . . . .”

RP West financed construction of The Villas with a construction loan from

Amegy Bank for $16.2 million, which Wilson personally guaranteed. The Amegy

Bank loan was originally due on March 6, 2008. As a condition of this loan,

Amegy Bank required both RP West and IRI to sign a “Tri-Party Agreement.”

Under this agreement, IRI acknowledged and consented to the construction loan

documents securing the loan, specifically RP West’s assignment to Amegy Bank

of its rights under the Villas Agreement, expressly including the right to earnest

money. This agreement also gave Amegy Bank the right to sue for specific

performance should IRI default on its obligation to purchase The Villas.

Because the construction and development cost of The Villas exceeded

$16.2 million, RP West took a second “mezzanine loan” for $2,113,500 from IRA

4

River Park West II Mezzanine, Ltd., a Texas limited partnership. Caraway was the

manager of the general partner of this partnership. The mezzanine lender had

repayment rights superior to the equity investors but inferior to Amegy Bank. But

the mezzanine loan was not secured by a second lien; rather the mezzanine lender

“just had an assignment of the . . . individual partner’s interest in 2005 RP West.”

Approximately a year after IRI and RP West signed the Villas Agreement,

and before construction of the complex was completed, IRI agreed to sell

12 properties, including The Reserve and The Villas, to an investor named Dennis

Trimarchi for a combined price of more than $318 million. 1 Of that amount,

Trimarchi had offered $23,760,000 for The Villas. Thus, by assigning its rights

under the Villas Agreement to Trimarchi, IRI stood to receive approximately

$2.26 million more than it was obligated to pay for the property under the Villas

Agreement. Caraway intended to close on the purchase of The Villas from RP

West (in fulfillment of the Villas Agreement) and to simultaneously close on the

resale of the property to Trimarchi.

1

The agreement was prepared on the letterhead of Trimarchi Management

and signed by Dennis Trimarchi as “CEO / Managing Member” of DMT,

LLC. The agreement identified the buyer as “DMT, LLC or its nominee.”

For our purposes, we refer to Dennis Trimarchi and his businesses

collectively as “Trimarchi.”

5

Caraway sent Wilson an email explaining the Trimarchi deal and requesting

(1) a change in the closing date, (2) release of IRI’s $215,000 earnest money held

by the title company, and (3) an agreement to replace the $215,000 earnest money

with the earnest money that Trimarchi would provide in connection with his

contract with IRI. RP West and IRI later signed an amendment to the Villas

Agreement, which released the original $215,000 earnest money to IRI, required

redeposit of such earnest money if the Trimarchi contract were “not executed by

September 21, 2007,” and included the following “Assignment of Trimarchi

Earnest Money”: “Purchaser hereby assigns to Seller all of Purchaser’s right, title

and interest in and to the Trimarchi Earnest Money, which assignment shall

become effective immediately upon execution of the Trimarchi contract. Such

assignment is intended to serve as a replacement of the earnest money deposit

otherwise provided for under the Villas Contract.” The amendment also stated, “In

the event of a conflict between the terms of this Amendment and the other terms of

the Contract, the terms of this Amendment shall control.”

RP West released the earnest money in accordance with the amendment. The

Trimarchi contract was signed before September 21, 2007, and Trimarchi

deposited earnest money with Beacon Title as required by the contract with IRI.

Trimarchi was able to secure financing for 10 of the 12 properties, but on

October 1, 2007, it terminated the contract with IRI as to The Reserve and The

6

Villas. Caraway did not immediately inform Wilson that Trimarchi terminated

their contract with respect to The Villas. The next day, Wilson emailed Caraway to

inquire about closing on The Villas, and he responded, “We are still scheduled to

close November 15.”

Two days later, Beacon Title released to IRI $74,579 in earnest money from

the Trimarchi agreement to purchase The Villas. Despite the assignment language

in the amendment to the Villas Agreement, IRI kept the money. At trial Caraway

could not recall whether he had informed RP West about having received this

earnest money, but he said that he kept it because he was continuing to negotiate

with Trimarchi, still believing that the sale of The Villas would close on November

15, 2007 as planned. At that time, IRI did not have $21.5 million in cash, and it

was not working to obtain financing to complete its purchase of The Villas in the

event that the Trimarchi negotiations failed. Caraway acknowledged at trial that

nothing in the contract with RP West would “let [him] off the hook” if the

Trimarchi deal fell through.

Trimarchi did not close on The Villas on November 15. Instead, the

Trimarchi contract with IRI was amended to require closing on The Villas by

January 18, 2008, and Wilson orally agreed to the change in closing date. But by

late December 2007, Caraway became aware that Trimarchi was unable to secure

financing to purchase The Villas. On January 2, 2008, Wilson sent Caraway an

7

email asking if closing on The Villas was “still on” for January 18. Caraway

responded that he would know by Friday of that week, depending on Trimarchi’s

financing. But on Friday Trimarchi defaulted on the contract to purchase The

Villas by failing to deposit new earnest money. IRI had not secured alternate

financing, and it found itself unable to perform on its contract with RP West.

Approximately one week later, RP West’s counsel sent an email to IRI’s

counsel, stating that IRI was in default of the Villas Agreement and asking

Caraway to remit to RP West “the earnest money originally required pursuant to

the contract and required to be redeposited in the amendment in the event the so-

called Trimarchi contract was not executed by September 21, 2007.” In addition,

the email specifically reserved RP West’s right to pursue any available remedy for

breach of the contract, stating: “Nothing in this letter is intended or should be

construed either as a waiver or an election of any remedy for breach of contract

and my client hereby expressly reserves any and all such remedies, including

rescission of the amendment for breach thereof.”

In mid-January, about a week after the email demand, Wilson wrote to

Caraway, requesting that IRI redeposit the $215,000 earnest money that was

released pursuant to the amendment to the Villas Agreement and stating that if the

money were not redeposited, RP West would contact the title company to obtain

the Trimarchi earnest money that had been assigned to it under the amendment.

8

But the money was not on deposit with the title company. Caraway testified that it

was “on deposit with Internacional Realty,” and that if Trimarchi defaulted and the

contract terminated, the money would belong to IRI.

On January 22, 2008, Caraway told Wilson that IRI still intended to perform

under the contract. But Wilson responded by email, saying that “a majority of the

limited partners have requested the general partner proceed with finding another

buyer for The Villas (ASAP) and are requesting [IRI] pay the earnest money to the

partnership per the amendment asap.”

Nevertheless, IRI’s attorney sent a proposed second amendment to the Villas

Agreement to RP West’s attorney. The proposed second amendment included

provisions that had not been discussed between the parties. RP West’s attorney

rejected the proposed second amendment, clarifying that “other than having waited

past the November” closing date, “there are no understandings or oral agreements

between the parties modifying” the amendment to the contract. The letter requested

that IRI immediately pay the Trimarchi earnest money to RP West or provide

contact information to facilitate obtaining the earnest money from the title

company. Finally, the letter stated:

My client may yet be willing to negotiate with yours regarding the

acquisition of the subject property on some basis, but wants yours to

understand our legal position, has not and does not hereby waive any

of its rights or remedies arising either under the contract or at law and

expressly disclaims any oral agreements or understandings at variance

with the First Amendment to the original contract. Unless my client

9

gets some immediate, satisfactory response, the general partner

intends to list the property for sale with a third party broker.

In late January, Caraway mailed a check for $215,000 to Wilson, who

remitted it to Amegy Bank in accordance with the Tri-Party Agreement. Wilson

testified that he was still working with Caraway to find a way for IRI to purchase

The Villas at that time, and internal IRI emails showed that it was still looking for

financing during February 2008.

Throughout 2008, RP West attempted to find a buyer for The Villas. Both

the Amegy Bank and mezzanine loans were extended during this time frame. As

part of the process of extending the mezzanine loan, RP West’s accounting firm

sent the mezzanine lender a financial statement that showed a $215,000 credit for

“proceeds from terminated contract for project sale.”

At trial, Caraway testified that he believed that the payment of the earnest

money to RP West terminated the contract and ended any further obligation

regarding The Villas. However, he also testified that IRI breached the contract, that

Wilson did not exclude IRI from purchasing The Villas, and that it was “entirely

possible” that he told Wilson to find another buyer. Indeed, Caraway testified that

he and Wilson had decided to market The Reserve and The Villas together, but

under separate listing agreements due to their separate ownership.

10

Wilson repeatedly testified that RP West did not terminate the contract, did

not elect to keep the earnest money as contract damages, and did “put” the property

to IRI.

IRI never bought The Villas. From January through August 2008, IRI did

not secure financing to do so, and at trial Caraway testified that the national

banking crisis made it impossible for him to obtain financing in the fall of 2008.

In August 2008, Wilson informed Caraway that he had been unable to find a

buyer willing to pay more than what IRI had agreed to pay in the Villas

Agreement. On August 15, 2008, Wilson emailed Caraway, saying that “a third

party market sale is not likely” and “[g]iven the situation, [RP West] is exploring

all options, but what [RP West] really prefers is that [IRI] purchase the property as

originally planned/agreed.”

In early September 2008, Wilson sent Caraway a demand letter that

reminded Caraway of his January 22 email stating his intention to purchase The

Villas:

RP West still expects IRI to purchase the Property as originally agreed

under the Contract. However, because IRI is in default of its

obligations to purchase the Property, RP West authorized suit to be

filed in order to promptly pursue its PUT in the event IRI is unwilling

to proceed with the transaction. RP West has withheld service of the

petition on IRI in hopes that IRI will honor its obligation to purchase

the Property. A copy of the filed petition is attached to this letter. RP

West will agree to defer service and/or extend IRI’s answer date so

long as satisfactory progress is being made toward the purchase of the

Property.

11

Caraway did not respond to this letter, and he testified that he was surprised

because he believed that the contract had previously been terminated and that RP

West had elected to keep the earnest money as contract damages.

Meanwhile, RP West moved forward with its lawsuit, and it continued to

seek a buyer for The Villas to mitigate its damages. RP West eventually sold The

Villas more than two years later, in December 2010, for $16.9 million, which

Caraway agreed was a reasonable price. At trial, Caraway testified that IRI initially

raised RP West’s failure to mitigate its losses by selling The Villas to a third party

as a bar to RP West’s recovery on its breach-of-contract claim. However, by the

time of trial, IRI contended that RP West’s sale of The Villas to a third party

negated the contractual “put” remedy because RP West was no longer in a position

to convey The Villas to IRI.

The case was ultimately tried to a jury. At the close of RP West’s evidence,

IRI moved for a directed verdict. IRI argued that the evidence at trial conclusively

established that RP West elected the earnest-money remedy and terminated the

contract in January 2008. IRI contended that RP West did not plead mitigation and

had no mitigation reason to have sold the property to a third party. IRI further

argued that RP West waived its right to recover—or was estopped to recover—

because it elected the earnest-money remedy, remained silent after January 2008,

and sold The Villas to a third party. IRI argued that any judgment allowing RP

12

West to recover under the Villas Agreement was barred by impossibility as a

matter of law; that is, RP West could not elect the “put” remedy because it no

longer owned The Villas and thus it was “impossible” for RP West to convey it. In

addition, IRI contended that the “put” remedy was no longer available to RP West

because the requirements for seeking specific performance—like remaining ready,

willing, and able to perform until the date of trial—were not satisfied.

The trial court denied IRI’s motion for directed verdict. The jury found that

(1) the assignment of the Trimarchi earnest money was not “complete and

unconditional,” (2) RP West did not elect the earnest-money remedy and did elect

the “put” remedy, and (3) IRI’s failure to comply with the Villas Agreement as

amended was not excused by impossibility. The jury awarded $4 million in

damages to RP West.

IRI filed a motion to disregard the jury findings and for judgment n.o.v. This

motion reiterated all of the arguments IRI made in support of its motion for

directed verdict. It further argued that RP West was entitled only to $215,000 in

liquidated damages and could not recover monetary damages because both the

“put” and specific performance remedies required RP West to convey The Villas to

IRI. Because RP West had sold The Villas to a third party, IRI argued those two

contractual remedies were unavailable.

13

In its motion for judgment n.o.v., IRI argued that RP West repudiated the

Villas Agreement by repeatedly stating that IRI had no enforceable right to

purchase The Villas and was in default, by demanding forfeiture of the earnest

money, and by communicating RP West’s intent to find a new buyer. 2 IRI also

argued that the “put” remedy was no longer available to RP West because the

requirements for seeking specific performance—like remaining ready, willing, and

able to perform until the date of trial—were not satisfied. IRI argued that RP

West’s sale could not have been in furtherance of mitigation of damages because

RP West had no duty to mitigate under the contract.

The trial court rendered judgment on the verdict in favor of RP West for

$4 million plus prejudgment interest and attorneys’ fees. IRI filed a motion for new

trial, which was overruled by operation of law, and it timely filed a notice of

appeal.

2

IRI further argued that the jury’s “no” answer to question number one,

which inquired if the assignment of the Trimarchi earnest money was

“complete and unconditional,” meant that the Trimarchi earnest money “was

intended to serve as the Earnest Money securing the [Villas Agreement] for

the Villas.” However, it could also have meant that the Trimarchi earnest

money was complete but conditional. As such, this question does not affect

the verdict and is immaterial. Spencer v. Eagle Star Ins. Co. of Am., 876

S.W.2d 154, 157 (Tex. 1994) (“A question is immaterial when it should not

have been submitted, or when it was properly submitted but has been

rendered immaterial by other findings.”).

14

Analysis

IRI brings eight issues on appeal, each of which includes multiple sub-

issues. In its first issue, IRI challenges the trial court’s denials of its motions for

directed verdict, to disregard jury findings, and for judgment n.o.v., all of which

were based on its interpretation of the exclusive remedies specified in the Villas

Agreement. In its second, third, and fourth issues, IRI challenges the trial court’s

rulings on its defenses of impossibility, waiver, and estoppel. IRI’s fifth issue

challenges the trial court’s ruling and the jury’s finding that RP West did not

choose to retain IRI’s earnest money and terminate the agreement as a remedy for

breach of contract. The sixth issue challenges the sufficiency of the evidence to

support the jury’s finding that RP West chose the contractual remedy of “put[ting]

the Property to [IRI] and su[ing] [IRI] for the Purchase Price.” In its seventh issue,

IRI argues that the evidence is legally and factually insufficient to support the

jury’s damages award and that the trial court erred in failing to instruct the jury on

the correct measure of damages. Finally, in its eighth issue, IRI contends that the

trial court erred by awarding RP West attorney’s fees and pre-and post-judgment

interest. Further, assuming success on its other issues, IRI asks this court to render

judgment that it should recover attorney’s fees as a prevailing party under the

contract.

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I. Interpretation of the contract

In its first issue, IRI contends that the trial court erred by denying its various

post-verdict motions because the Villas Agreement was unambiguous, the “put”

remedy was foreclosed by RP West’s sale of the apartment complex to a third

party, and that particular contractual remedy does not allow recovery of actual

damages.

The dispute centers on the meaning of one of the three “sole and exclusive

remedies” available to the purchaser under the contract: the right to “put the

Property to Purchaser and sue Purchaser for the Purchase Price,” which includes

the seller’s right to retain “all rights of offset against Purchaser to which Seller

may be entitled at law or in equity including the Earnest Money and any sums

owed by Seller to Purchaser in respect of such construction financing or

otherwise.” Despite the fact that this agreement was executed by sophisticated

parties with ample experience in real-estate transactions, our legal research has not

revealed any published opinion in any United States jurisdiction construing this

language. Both parties argue that the contract is unambiguous, but they advance

different interpretations of the “put” remedy provision.

In considering this issue, we are especially mindful that the trial court

rendered judgment on the verdict after a trial in which each side had the

opportunity to present evidence and argument advancing its interpretation of the

16

“put” remedy. IRI contended that the “put” remedy would require that RP West

actually transfer the property to it. RP West contended that the “put” remedy

permitted it to sell the complex to a third party and to sue IRI for the difference

between the contract price of $21.5 million and the earnest money plus third-party

sales price. The jury agreed with RP West’s understanding of the contract,

affirmatively finding in its verdict that the put remedy was elected as the remedy

for IRI’s default. Our task is to determine whether this was a legally permissible

outcome given the contractual language. 3

“‘A contract is ambiguous when its meaning is uncertain and doubtful or is

reasonably susceptible to more than one interpretation.’” Dynegy Midstream

Servs., Ltd. P’ship v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009) (quoting

Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996); accord In re

3

A trial court may order a directed verdict in favor of a defendant when: (1) a

plaintiff fails to present evidence raising a fact issue essential to the

plaintiff’s right of recovery; or (2) the plaintiff admits or the evidence

conclusively establishes a defense to the plaintiff’s cause of action. See

Prudential Ins. Co. of Am. v. Fin. Rev. Servs., Inc., 29 S.W.3d 74, 77 (Tex.

2000). A motion for judgment n.o.v. should be granted if the evidence is

legally insufficient to support the jury’s findings or if a directed verdict

would have been proper because a legal principle precludes recovery. TEX.

R. CIV. P. 301; see Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d

392, 394 (Tex. 1991). Similarly, a court may disregard a jury finding if it is

unsupported by evidence or if the issue is immaterial, i.e., it should not have

been submitted or was properly submitted and rendered immaterial by other

findings. Spencer v. Eagle Star Ins. Co., 876 S.W.2d 154, 157 (Tex. 1994).

17

D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex. 2006); Coker v. Coker, 650

S.W.2d 391, 393 (Tex. 1983). A simple lack of clarity or disagreement between

parties does not necessarily render a term ambiguous. See DeWitt Cnty. Elec.

Coop., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999). If, however, a contract is

susceptible to two or more reasonable interpretations, it creates a fact issue for the

trier of fact. See Ashford Partners, Ltd. v. ECO Res., Inc., 401 S.W.3d 35, 38–39

(Tex. 2012).

Here, the trial court did not expressly rule on the interpretation of the

contract as a matter of law. Rather, the parties argued their respective positions to

the jury, which determined that RP West elected the “put” remedy and determined

the amount of damages that would make it whole based on the evidence. The court

then rendered judgment on the jury’s verdict, overruling IRI’s post-verdict motions

by stating in the judgment that “[a]ll relief not expressly granted herein is

DENIED.”

IRI contends the court erred by denying its post-verdict motions because its

interpretation of the put remedy, which was implicitly rejected by the jury’s

verdict, was correct as a matter of law. RP West, on the other hand, argues that

IRI’s proposed construction is unreasonable as a matter of law.

If IRI’s interpretation were the only reasonable interpretation, then the trial

court would have erred in denying its post-verdict motions. But if RP West’s

18

interpretation were a reasonable interpretation—regardless of whether it was the

only reasonable interpretation, or one of several reasonable interpretations—then

IRI’s appeal must fail, regardless of whether its own interpretation was also

reasonable. As such, this appeal does not require us to resolve the question of

whether the text of the “put” remedy had one unambiguous meaning. All we must

determine is whether RP West’s interpretation that was accepted by the jury is

itself reasonable, i.e., that the put remedy provision is reasonably susceptible to the

understanding that IRI could be sued for the purchase price, less offsets, including

mitigation of damages by selling The Villas to a third party.

“When construing a contract, the court’s primary concern is to give effect to

the written expression of the parties’ intent.” Forbau v. Aetna Life Ins. Co., 876

S.W.2d 132, 133 (Tex. 1994). To determine the intent of the parties, we examine

the entire writing and strive to harmonize and give effect to all provisions in the

contract, so that no provision is rendered meaningless. In re Serv. Corp. Int’l, 355

S.W.3d 655, 661 (Tex. 2011). In doing so, we give contract terms “‘their plain and

ordinary meaning, unless the contract indicates that the parties intended a different

meaning.’” Reeder v. Wood Cnty. Energy, LLC, 395 S.W.3d 789, 794–95 (Tex.

2012) (quoting Dynegy Midstream Servs., Ltd. P’ship v. Apache Corp., 294

S.W.3d 164, 168 (Tex. 2009)).

19

Section 8.2 of the Villas Agreement, which governs a “Breach by

Purchaser,” sets forth specific “sole and exclusive remedies” available to RP West,

as seller, in the event of a breach of contract by IRI, as purchaser. Under the

agreement, RP West may elect to:

i. terminate this Agreement and thereupon shall be entitled to the

Earnest Money as liquidated damages (and not as a penalty), or

ii. put the Property to Purchaser and sue Purchaser for the

Purchase Price, or

iii. pursue the remedy of specific performance of Purchaser’s

obligations under this Agreement.

The agreement further provides that if RP West, as aggrieved seller, elected to

“put” the property to IRI and sue for the purchase price, RP West would have “all

rights of offset against Purchaser [IRI] to which Seller [RP West] may be entitled

at law or in equity including the Earnest Money and any sums owed by Seller to

Purchaser in respect of such construction financing or otherwise, such right of

offset to be applicable against any such debt and assertable against any subsequent

holder thereof.”4

4

The reference to “any sums owed by Seller to Purchaser in respect of such

construction financing” refers to IRI’s agreement to “loan certain funds” to

RP West “to finance the construction” of The Villas, apparently in

anticipation of the mezzanine financing later arranged by a lender managed

by Caraway.

20

The first remedy provided in the agreement is for the seller, RP West, simply

to keep the earnest money and terminate the contract. The third remedy is to

“pursue the remedy of specific performance” by IRI of its obligations as

purchaser. 5 “The purpose of specific performance is to compel a party who is

violating a duty to perform under a valid contract to comply with his obligations.”

Griffin’s Estate v. Sumner, 604 S.W.2d 221, 225 (Tex. Civ. App.—San Antonio

1980, writ ref’d n.r.e.). It is an equitable remedy employed when “the recovery of

monetary damages would be inadequate to compensate the complainant.” Id.

The second remedy in the Villas Agreement is the “put” remedy. Unlike the

other relatively straightforward remedy options, the contractual provision that the

seller may “put the Property to Purchaser and sue Purchaser for the Purchase

5

“‘[T]o be entitled to specific performance, the plaintiff must show that it has

substantially performed its part of the contract, and that it is able to continue

performing its part of the agreement. The plaintiff’s burden of proving

readiness, willingness and ability is a continuing one that extends to all times

relevant to the contract and thereafter.’” DiGiuseppe v. Lawler, 269 S.W.3d

588, 594 (Tex. 2008) (quoting 25 RICHARD A. LORD, WILLISTON ON

CONTRACTS § 67:15, at 236–37 (4th ed. 2002) (citations omitted)). “[A]

plaintiff seeking specific performance, as a general rule, must actually tender

performance as a prerequisite to obtaining specific performance.” Id. at 594

(citing McMillan v. Smith, 363 S.W.2d 437, 442–43 (Tex. 1962)).

Nevertheless, “when a defendant refuses to perform or repudiates a contract,

the plaintiff may be excused from actually tendering his or her performance

to the repudiating party before filing suit for specific performance.” Id.

21

Price” is hardly a paragon of clarity. The contract does not define or otherwise

detail the manner in which the “put” is to be exercised.

IRI argues that because this remedy allows RP West to “put the Property to

Purchaser,” and because it is the only party defined under the agreement as the

“Purchaser,” the provision cannot be read to allow the property to be “put” to a

third party. Thus the essential crux of IRI’s argument is that for RP West to

exercise the “put” remedy, the property had to be actually transferred to IRI, and

not to any third-party. 6 To establish this meaning of “put” in the contract, IRI

contends that its “customary meaning in a real estate agreement” 7 is also its “plain,

common sense” meaning: that the object of the put—the deed or title to the

6

IRI also observes that the put remedy only authorizes a suit for the

“Purchase Price,” defined to be $21.5 million, but this argument neglects the

effect of other contractual language that allows offsets from the Purchase

Price.

7

IRI and our concurring colleage both allude to the concept that the “put”

remedy as incorporated in the Villas Agreement has some objectively

discernable meaning due to its trade usage in the real-estate context. See,

e.g., Restatement (Second) of Contracts § 222(1) (1981) (“A usage of trade

is a usage having such regularity of observance in a place, vocation, or trade

as to justify an expectation that it will be observed with respect to a

particular agreement.”). We note, however, that IRI has not actually

presented any evidence or argument that the language at issue is commonly

used or that it has a commonly understood meaning. See id. § 222(2) (“The

existence and scope of a usage of trade are to be determined as questions of

fact.”).

22

property—must be actually transferred or conveyed to the recipient of the put. 8 IRI

supports its understanding of the common usage of “put” with a definition from

Merriam-Webster’s Collegiate Dictionary, arguing that when the word “is used

with an object—for example, ‘put the keys on the table’ or ‘put her money into

bonds’—the word ‘put’ is defined as ‘to place in a specified position or

relationship.’” 9

8

IRI relies on several cases as examples of real-estate contracts that use the

term “put.” See Turboff v. Gertner, Aron & Ledet Invs., 840 S.W.2d 603

(Tex. App.—Corpus Christi 1992, writ dism’d); Doerge v. Nat’l Bank of

Commerce, 482 F. Supp. 802, 804 (N.D. Tex. 1977), aff’d, 609 F.2d 1006

(5th Cir. 1979); Exch. Bank & Trust Co. v. Doerge, Nos. 41191, 41230,

1980 WL 354907 (Ohio Ct. App. Aug. 28, 1980). These cases lend no aid to

the interpretive question in this case. They do not apply the same contractual

language at issue in this case or otherwise establish that there is a commonly

understood, uniform meaning of the term “put” in the real-estate context that

supports IRI’s interpretation of the remedies available under the Villas

Agreement. See also U.S. Rest. Props. Operating L.P. v. Motel Enters., Inc.,

104 S.W.3d 284, 287–88 (Tex. App.—Beaumont 2003, pet. denied)

(describing “put option” that operated not as a measure of damages for

breach of a purchase and sale agreement, but as a contractual mechanism for

the seller of 37 Dairy Queen restaurants in a lease-purchase arrangement to

require the buyer of the restaurants to purchase a promissory note in favor of

the seller).

9

IRI also relies on the broader structure the contract’s menu of “sole and

exclusive remedies” to argue that allowing a recovery on RP West’s theory

conflicts with section 8.2(i), which authorizes the seller to terminate the

agreement and keep the earnest money as liquidated damages. In connection

with this “termination” remedy, section 8.2 states that “Seller and Purchaser

have made this provision for liquidated damages because it would be

difficult to calculate, on the date hereof, the amount of actual damages for

such breach, and Seller and Purchaser agree that these sums represent

23

For its part, RP West contends that the contract unambiguously authorized it

to “put” the property to IRI by the act of suing it to recover the contractual

purchase price. It reasons that the contract’s reference to the seller’s “rights of

offset” means that the remedy “specifically contemplated a mitigation sale and

allowed for an offset of the price received.” RP West also points out difficulties

with IRI’s interpretation of the “put” remedy, which makes it entirely duplicative

of the specific performance remedy authorized by section 8.2(iii), and also

reasonable compensation to Seller for such breach.” See Phillips v. Phillips,

820 S.W.2d 785, 788 (Tex. 1991) (“In order to enforce a liquidated damage

clause, the court must find: (1) that the harm caused by the breach is

incapable or difficult of estimation, and (2) that the amount of liquidated

damages called for is a reasonable forecast of just compensation.”). Relying

on that contractual language, IRI contends that RP West’s interpretation of

the “put” remedy functions as a provision for “actual damages,” which the

parties specifically excluded from consideration due to its difficulty of

calculation, and as such was expressly ruled out as a potential remedy, thus

reflecting the parties’ “allocated risk of damages.” We reject this reasoning

for at least two reasons. First, common-law “actual damages” for a breach of

this contract would have required a determination of the market value of The

Villas on the date of IRI’s breach, see, e.g., Barry v. Jackson, 309 S.W.3d

135, 140 (Tex. App.—Austin 2010, no pet.), and RP West’s interpretation of

the “put” remedy does not subject the parties to the difficulties of proving

market value as of a particular date. See, e.g., City of Harlingen v. Estate of

Sharboneau, 48 S.W.3d 177, 182 (Tex. 2001) (market value is the price that

would be offered by a willing buyer to a willing seller, when neither is under

compulsion to buy or sell). Moreover, IRI presents no authority, and we

decline to hold, that by agreeing that a seller may retain earnest money as

liquidated damages for the purchaser’s breach of a real-estate sale

agreement, the parties are thereby prevented from also agreeing to some

other alternative formula for determining money damages at the seller’s

election.

24

suggests a commercially implausible scenario that IRI’s breach would be rewarded

by requiring RP West to transfer the property to IRI first and then endure the

litigation process to try to recover the purchase price later.

First, we reject the suggestion that the complexity of this dispute can be

definitively resolved as a matter of law by reference to an ordinary dictionary

definition of the word “put.” The myriad of potential uses of that word is

confirmed by the definition found in The New Shorter Oxford English Dictionary,

where the definition consumes one entire three-column page, spills over onto parts

of two other pages, and illustrates dozens of particularized uses of the word “put.”

2 THE NEW SHORTER OXFORD ENGLISH DICTIONARY 2425–27 (1993 ed.). Not all of

those examples are inconsistent with RP West’s interpretation. For example, “put”

can be used to mean “cause to get into or be in some place or position expressed or

implied.” Id. at 2425. Used in that sense, “put to” can mean “write (a signature or

name) fix (a seal etc.) on a document etc.,” id., and thus understood could be

consistent with RP West’s argument that it “put” the property to IRI by the act of

filing its suit to recover the purchase price.

Another definition is found in Black’s Law Dictionary, where the entry for

“put” directs the reader to the definition for “put option,” defined as “[a]n option to

sell something (esp. securities) at a fixed price even if the market declines; the

right to require another to buy.” BLACK’S LAW DICTIONARY 1268, 1432 (10th ed.

25

2014); see also ROBERT W. HAMILTON, FUNDAMENTALS OF MODERN BUSINESS

§ 20.2 (1989) (explaining the concepts of put and call options in the context of

securities options trading). Considered in isolation, this sense of the word “put”

seems to support IRI’s argument that a put implies a transfer, 10 but it encounters

other difficulties in the context of section 8.2. To the extent it would require a

transfer of property as a predicate to a suit to recover damages, it seemingly would

place the cart before the horse and subject the aggrieved seller to the risk of further

injury by awarding the property to a breaching buyer who ultimately may be

unable to pay. This understanding also creates the difficulty of duplicating the

function of the specific performance remedy of section 8.2(iii), in tension with the

interpretive rule that we strive to harmonize and give effect to all provisions in the

contract, so that no provision is rendered meaningless. 11 If we attempt to

harmonize the two provisions by assuming that the “put” remedy of section 8.2(ii)

means something other than the specific performance remedy authorized by

10

It also conforms to the use of the term in other cases relied upon by IRI. See

supra note 8.

11

See In re Serv. Corp. Int’l, 355 S.W.3d 655, 661 (Tex. 2011). The three

identified “sole and exclusive remedies” in section 8.2 are all separated by

the word “or,” indicating their disjunctive nature. See, e.g., Bd. of Ins.

Comm’rs of Tex. v. Guardian Life Ins. Co. of Tex., 180 S.W.2d 906, 908

(Tex. 1944); Am. Nat’l Ins. Co. v. Wilson State Bank, 480 S.W.2d 296, 300

(Tex. Civ. App.—Amarillo 1972, no writ).

26

section 8.2(iii), that something must include some other form of a suit for

damages—the provision authorizes the seller to sue the purchaser “for the Purchase

Price,” allowing for “rights of offset against Purchaser to which Seller shall be

entitled at law or in equity.” While the reference to the “rights of offset” does not

expressly mention mitigation of damages—and we cannot agree with RP West

based on text that this reference “specifically contemplated a mitigation sale”—we

also cannot exclude that understanding as an unreasonable interpretation as a

matter of law.12

As the foregoing discussion demonstrates, there are substantial arguments

for and against the competing interpretations advanced by the parties. Having

considered the well-settled rules of contractual interpretation, we conclude that RP

West’s interpretation of the “put” remedy is a reasonable one, and it certainly

12

IRI argues that the contract imposed no express duty of mitigation on RP

West, but we do not agree that this consideration makes RP West’s

interpretation unreasonable. The doctrine of mitigation of damages “prevents

a party from recovering for damages resulting from a breach of contract that

could be avoided by reasonable efforts.” Great Am. Ins. Co. v. N. Austin

Mun. Util. Dist. No. 1, 908 S.W.2d 415, 426 (Tex. 1995). Under Texas law,

a claimant is required “to mitigate damages if it can do so with trifling

expense or with reasonable exertions.” Gunn Infiniti, Inc. v. O’Byrne, 996

S.W.2d 854, 857 (Tex. 1999). In a contract suit, amounts that a plaintiff

recovered or should have recovered through mitigation of damages are offset

against his recovery. See, e.g., McGraw v. Brown Realty Co., 195 S.W.3d

271, 278 (Tex. App.—Dallas 2006, no pet.); Murphy v. Gulf Consol. Servs.,

Inc., 666 S.W.2d 383, 383–84 (Tex. App.—Houston [14th Dist.] 1984, no

writ).

27

cannot be foreclosed solely on the basis of IRI’s competing interpretation. Even if

we assumed, without deciding, that IRI’s interpretation also could be reasonable,

that would afford no grounds for relief from the judgment. With two reasonable

interpretations, the correct understanding of the “put” remedy would have been a

question of fact for the jury, which was resolved in RP West’s favor when the jury

determined that it exercised the contractual put remedy. Accordingly, the trial court

did not err by denying IRI’s post-verdict motions which argued that its

understanding was the only correct interpretation of the contract.

We therefore overrule IRI’s first issue.

II. IRI’s defenses of impossibility, waiver, and estoppel

IRI’s second, third, and fourth issues concern its affirmative defenses. In its

second and third issues, IRI contends that the trial court erred by denying its

motions for directed verdict, to disregard jury findings, and for judgment n.o.v. In

its fourth issue, IRI contends that the trial court erred by granting RP West’s

motion for directed verdict on IRI’s estoppel defense and by failing to submit its

estoppel defense to the jury.

A. Impossibility

In its second issue, IRI contends that the trial court erred in denying its

motion for directed verdict on impossibility because RP West’s sale of The Villas

to a third party made it impossible for it to transfer The Villas to IRI. We have

28

already explained that RP West’s interpretation of the put remedy was reasonable,

was implicitly accepted by the jury, and allowed RP West to mitigate its damages.

Under this contractual remedy, RP West was not obligated to hold The Villas until

the lawsuit was concluded.

Moreover, impossibility is a defense to a cause of action for breach of

contract. Tractebel Energy Mktg., Inc. v. E. I. Du Pont De Nemours & Co., 118

S.W.3d 60, 66 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). “‘Where . . . a

party’s performance is made impracticable . . . by the occurrence of an event the

non-occurrence of which was a basic assumption on which the contract was made,

his duty to render that performance is discharged . . . .’” Centex Corp. v. Dalton,

840 S.W.2d 952, 954 (Tex. 1992) (quoting Restatement (Second) of Contracts

§ 261 (1981)). In this case, there was no factual dispute about the breach of

contract: IRI admitted breaching the contract, and it did not argue that its

performance was impossible because of the occurrence of an event, the non-

occurrence of which was a basic assumption of the parties’ agreement. See id.

IRI also argued that the trial court erred by improperly submitting its

impossibility defense in jury question 3, which stated:

Was Internacional Realty Inc.’s failure to comply with the Purchase

and Sale Agreement as amended by the First Amendment excused by

impossibility?

29

Impossibility is established if, at the time 2005 RP West, Ltd. was

required to perform the Purchase and Sale Agreement as amended by

the First Amendment, it was not ready, willing, and able to do so.

Section 9.6 of the Purchase and Sale Agreement provides “Time is of

the essences of this Agreement.”

Compliance with an agreement must occur within a reasonable time

under the circumstances unless the parties agreed that compliance

must occur within a specified time and the parties intended

compliance within such time to be an essential part of the agreement.

In determining whether the parties intended time of compliance to be

an essential part of the agreement, you may consider the nature and

purpose of the agreement and the facts and circumstances surrounding

its making.

At the charge conference, IRI requested that the following impossibility instruction

be submitted to the jury:

2005 RP West, Ltd. cannot recover under the Put provision in §8.2(ii)

of the Purchase and Sale Agreement if it is impossible to do so. 2005

RP West, Ltd. has a continuing obligation to prove that it is ready,

willing and able to convey the Villas to Internacional Realty Inc.

These obligations extend to “all times relevant to the contract and

thereafter.”

The trial judge stated on the record, “I don’t like the ‘cannot recover’ portion of it.”

The court denied the request.

IRI argues that in order to recover under the “put” remedy, RP West had to

demonstrate that it was ready, willing, and able to perform. In DiGiuseppe v.

Lawler, 269 S.W.3d 588 (Tex. 2008), the Supreme Court of Texas addressed the

elements that must be shown to recover under the equitable remedy of specific

30

performance. 269 S.W.3d at 593. Because it is an equitable remedy, ordinarily a

party seeking specific performance must show that he has complied with the

obligations under the contract and tendered performance. Id. at 594. We have

already explained that the “put” remedy is not necessarily identical to the remedy

of specific performance. We decline to engraft the requirements necessary to

recover under this equitable remedy onto the contractual remedy of putting the

property to the purchaser and suing for the purchase price. We overrule IRI’s

second issue.

B. Waiver

In its third issue, IRI argues that the trial court erred by denying its motion

for directed verdict and failing to submit waiver and estoppel to the jury. IRI

argues that RP West waived the “put” remedy by informing IRI that it was in

default of the Villas Agreement, demanding and accepting the earnest money,

telling IRI that it had no enforceable right to buy the property, entering into a sales

and marketing agreement with a realtor to seek a third-party buyer, setting a sales

price higher than the $21.5 million contract price, negotiating a concession on the

realtor’s commission, selling The Villas to a third party, and failing to continually

communicate with IRI. IRI also relies on financial statements it received from RP

West’s accountant related to the mezzanine loan that characterized the $215,000

earnest money as proceeds from a terminated contract for project sale.

31

“Waiver is defined as an intentional relinquishment of a known right or

intentional conduct inconsistent with claiming that right.” Jernigan v. Langley,

111 S.W.3d 153, 156 (Tex. 2003). “The elements of waiver include (1) an existing

right, benefit, or advantage held by a party; (2) the party’s actual knowledge of its

existence; and (3) the party’s actual intent to relinquish the right, or intentional

conduct inconsistent with the right.” Ulico Cas. Co. v. Allied Pilots Ass’n, 262

S.W.3d 773, 778 (Tex. 2008). “Waiver is largely a matter of intent, and for implied

waiver to be found through a party’s actions, intent must be clearly demonstrated

by the surrounding facts and circumstances.” Jernigan, 111 S.W.3d at 156. Only

actions that are inconsistent with an intent to rely on a right can be evidence of

waiver. Id.

The actions that IRI identifies do not clearly show that RP West intended to

waive its contractual “put” remedy. First, the “put” remedy specifically

contemplates that the earnest money will be an offset to any recovery won by RP

West. Therefore, accepting the earnest money is not inconsistent with election of

the “put” remedy. Second, RP West expressly reserved its right to elect a remedy

in a January 2008 email from its lawyer to IRI’s lawyer. Later, it took actions to

mitigate its damages, including entering into a sales and marketing agreement with

a realtor, setting a sales price above the contract price, securing a concession on the

real-estate commission, and selling The Villas to a third party. We have explained

32

that RP West was entitled to mitigate damages under the put remedy; therefore

these actions consistent with mitigation of damages are not evidence of waiver. As

to the financial statements provided to the mezzanine lender, Wilson testified that

he did not direct the accountants to characterize the money as proceeds from a

terminated contract. Accordingly, the notation indicates no more than the

accountant’s characterization of the money, and in light of the reservation of rights

and other facts does not demonstrate an intent to waive the “put” remedy.

IRI contends that the trial court erred by denying its motion for directed

verdict as to waiver because it conclusively proved that RP West impliedly waived

the “put” remedy. In the alternative, IRI argues that the trial court erred by not

submitting waiver to the jury. Based on our review of the record, we disagree and

conclude that there is no evidence that RP West waived its right to elect the put

remedy. A trial court errs by submitting to the jury a question that is not supported

by the evidence. Harris Cnty. v. Smith, 96 S.W.3d 230, 238 (Tex. 2002). Because

we have concluded that there was no evidence to support IRI’s argument that RP

West waived its right to elect the “put” remedy, we hold that the trial court did not

err by denying IRI’s motion for directed verdict or by refusing to submit to the jury

a question on waiver. We overrule IRI’s third issue.

33

C. Estoppel

In its fourth issue, IRI contends that the trial court erred by granting RP

West a directed verdict on IRI’s estoppel defense, and, in the alternative, that the

trial court erred by failing to submit IRI’s estoppel defense to the jury. Equitable

estoppel is an affirmative defense. Daniel v. Falcon Interest Realty Corp., 190

S.W.3d 177, 188 (Tex. App.—Houston [1st Dist.] 2005, no pet.). “An affirmative

defense does not tend to rebut factual propositions asserted by a plaintiff, but seeks

to establish an independent reason why the plaintiff should not recover.” Gorman

v. Life Ins. Co. of N. Am., 811 S.W.2d 542, 546 (Tex. 1991). A defendant seeking

to avoid judgment under the affirmative defense of equitable estoppel must prove:

“(1) a false representation or concealment of material facts; (2) made with

knowledge, actual or constructive, of those facts; (3) with the intention that it

should be acted on; (4) to a party without knowledge or means of obtaining

knowledge of the facts; (5) who detrimentally relies on the representations.”

Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515–16

(Tex. 1998).

IRI argues that the evidence conclusively shows that RP West made false

representations and concealed material facts, and therefore the court should have

submitted its equitable estoppel defense to the jury. But all of the actions of which

IRI complains occurred after it breached the Villas Agreement in January 2008.

34

For example, IRI relies on communication from RP West that a majority of the

limited partners asked the limited partner to find another buyer, the compiled

financial statements that were sent to the mezzanine lender in an attempt to extend

the loan after IRI’s breach, and RP West’s lack of communication during most of

2008. Although IRI argues that it stopped seeking financing based on what it

alleges are omissions or representations that RP West would not elect the “put”

remedy, RP West’s delay of eight months in exercising the put remedy was well

within the four-year statute of limitations for breach of contract cases. See TEX.

CIV. PRAC. & REM. CODE ANN. § 16.004 (West 2002); Via Net v. TIG Ins. Co., 211

S.W.3d 310, 315 (Tex. 2006) (per curiam). And none of this evidence establishes

an independent reason why RP West should not recover for the earlier breach of

contract. See Gorman, 811 S.W.2d at 546.

Accordingly, we hold that the trial court did not err by granting RP West’s

motion for directed verdict on the defense of estoppel or by refusing to submit this

to the jury. We overrule the fourth issue.

III. RP West’s choice of remedy

IRI’s fifth and sixth issues concern the trial court’s rulings and the jury’s

findings as to which contractual remedy RP West elected to pursue. In its fifth

issue, IRI contends that the court erred by denying its motion to disregard jury

findings and motion for judgment n.o.v. because, as a matter of law, RP West

35

elected the earnest money remedy as its sole and exclusive remedy for breach of

the Villas Agreement. IRI alternatively contends that the jury’s answer that RP

West did not elect the earnest money remedy was against the great weight and

preponderance of the evidence. In its sixth issue, IRI contends that the evidence

was both legally and factually insufficient to support the jury’s verdict that RP

West elected the “put” remedy.

When reviewing a trial court’s ruling on a j.n.o.v. based on the party’s

contention that it is entitled to judgment as a matter of law, we review the court’s

action de novo. See In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1994); NETCO,

Inc. v. Montemayor, 352 S.W.3d 733, 738 (Tex. App.—Houston [1st Dist.] 2011,

no pet.) We review legal sufficiency challenges in accordance with the City of

Keller standard, determining whether the evidence “would enable reasonable and

fair-minded people to reach the verdict under review.” City of Keller v. Wilson,

168 S.W.3d 802, 827 (Tex. 2005). We review factual sufficiency challenges to

determine whether “the evidence is so weak or the finding is so against the great

weight and preponderance of the evidence that it is clearly wrong and unjust.”

Kroger Co. v. Persley, 261 S.W.3d 316, 319 (Tex. App.—Houston [1st Dist.]

2008, no pet.) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)).

IRI initially argues that by accepting the earnest money and seeking a third-

party purchaser for The Villas, RP West elected the first contractual remedy, to

36

terminate the Villas Agreement and be entitled to the earnest money as liquidated

damages. We have already explained that acceptance of the earnest money was

consistent with election of the put remedy.

Moreover, the parties modified the earnest-money provision in the

amendment pertaining to the Trimarchi earnest money. Specifically, IRI assigned

to RP West all of its “right, title and interest in and to the Trimarchi Earnest

Money, which assignment shall become effective immediately upon execution of

the Trimarchi Contract.” The assignment was intended to serve as a replacement of

the earnest money deposit otherwise provided for under the Villas Contract. The

amendment provided that if the Trimarchi contract were not “executed” by

September 21, 2007, IRI would “immediately” redeposit the $215,000 in earnest

money. The amendment also provided that the terms of the amendment would

control over the other contract terms should a conflict arise.

“The term ‘execute’ means ‘to finish’ or ‘make complete.’” Travelers Ins.

Co. v. Chicago Bridge & Iron Co., 442 S.W.2d 888, 895 (Tex. Civ. App.—

Houston [1st Dist.] 1969, writ ref’d n.r.e). Therefore, the “execution of a contract

includes the performance of all acts necessary to render it complete as an

instrument.” Id.; see Mid-Continent Cas. Co. v. Global Enercom Mgmt., Inc., 323

S.W.3d 151, 157 (Tex. 2010) (discussing requisites for execution of contract). RP

West released the earnest money, in accordance with the amendment, and the

37

Trimarchi contract was signed before September 21, 2007. IRI does not argue that

the Trimarchi contract was not executed before September 21, 2007; rather, it

ignores the effect of the amendment on ownership of Trimarchi’s forfeited earnest

money.

After Trimarchi defaulted on its agreement to purchase The Villas from IRI,

the title company released Trimarchi’s earnest money to IRI. Caraway testified that

IRI was holding the money in lieu of the title company until the date for

Trimarchi’s closing passed, at which time Caraway believed the money would be

IRI’s “to do with as we pleased.” The plain language of the amendment directly

contradicts that. IRI had already assigned to RP West all of its “right, title and

interest in and to” the Trimarchi earnest money. Thus without regard to the

contractual remedy provisions in the Villas Agreement and in accordance with the

amendment, RP West was entitled to the Trimarchi earnest money when Trimarchi

defaulted on its contract.

Because RP West was independently entitled to receive the earnest money,

its request for and acceptance of the earnest money does not conclusively

demonstrate that it elected the “earnest money” remedy in the parties’ contract.

The evidence at trial showed that RP West repeatedly demanded performance;

agreed to extensions of closing to enable IRI to perform; reserved its rights and

remedies in writing; stated that it was not waiving any remedy; and asked IRI to

38

purchase The Villas. We conclude that the evidence would enable reasonable and

fair-minded jurors to conclude that RP West elected the “put” remedy. See City of

Keller, 168 S.W.3d at 827. Having reviewed the record, we likewise conclude that

the jury’s determination that RP West elected the “put” remedy is not so weak or

so contrary to the great weight and preponderance of the evidence as to be clearly

wrong and unjust. See Kroger, 261 S.W.3d at 319.

We overrule IRI’s fifth and sixth issues.

IV. Damages

In its seventh issue, IRI contends that the evidence is legally and factually

insufficient to support the jury’s award of $4 million in damages. IRI alternatively

contends that the trial court erred by failing to instruct the jury on the correct

measure of damages.

In Question No. 4, the jury charge asked:

What sum of money, if any, paid now in cash, would fairly and

reasonably compensate 2005 RP West, Ltd. for its damages, if any,

resulting from Internacional Realty, Inc.’s failure to comply with the

Purchase and Sale Agreement as amended by the First Amendment.

Do not add any amount for interest on damages, if any.

The jury answered, “$4,000,000.00.”

At trial IRI objected to Jury Question 4 as originally contemplated by the

court, which included the following instruction:

You may consider the following element of damages and none other:

39

The difference between (a) the amount Internacional Realty Inc.

agreed to pay for the Villas and (b) the actual sales price 2005 RP

West, Ltd. received for the sale of the Villas.

IRI requested that the court delete the language following “and none other” and

replace it with:

§ 8.2(ii) “put the Property to the Purchaser and sue Purchaser for the

Purchase Price”

At the charge conference, IRI’s attorney stated, “What we’re proposing is that we

change the element of damages to track the contract language exactly with a quote

from the contract.” The court refused the request. IRI’s attorney then objected to

the instruction that the court initially proposed including in the charge, stating:

[T]he instruction that is in there does, in fact, track a theory

completely unsupported by evidence of damage recovery, but it is not

an actual permissible element of damages in this case, and that’s why

we feel that what is listed in there, which is essentially a rewriting of

the exhibit that [RP West’s attorney] drew [during trial] that will

incorrectly inform the jury of what it should be doing ahead of time in

this . . . instruction.

There was no objection or discussion regarding the need for RP West to have

proven the market value of The Villas at the time of the breach or for a request for

“actual” breach-of-contract damages. The court decided to eliminate the instruction

altogether and IRI agreed, stating, “We’re in . . . line with that . . . We would just

ask that we add ‘Do not add any amount for interest on damages, if any,’ as it

tracks the P.J.C.”

40

On appeal, IRI contends the trial court erred by failing to include any

instruction as to the measure of damages. Although IRI made a request and

objection pertinent to Question No. 4, the issue that it raises on appeal was not

brought to the court’s attention during the charge conference. Because IRI agreed

with the court and failed to object to the omission of an instruction as to damages

or request such an instruction in substantially correct form, this part of issue seven

is waived. See TEX. R. APP. P. 33.1; Cruz v. Andrews Restoration, Inc., 364 S.W.3d

817, 829–30 (Tex. 2012).

In the absence of an objection to the court’s charge, we evaluate the

sufficiency of the evidence in light of the court’s charge as given to the jury.

Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000). Because the issue raised on

appeal—that the damages question submitted to the jury did not ask the jury to

determine actual “breach of contract damages”—was not raised in the trial court,

we determine the sufficiency of the evidence in light of the court’s charge. See id.

We have already explained that the contractual measure of damages for the “put”

remedy differed from “actual” breach-of-contract damages in that it did not require

RP West to prove the market value of The Villas at the time of the breach. Rather,

the contractual “put” remedy provided for damages in an amount equal to the

contract price of The Villas, less any offsets allowed by law and equity. Contrary

to IRI’s argument that RP West’s “sole evidence was counsel’s hand-drawn exhibit

41

prepared at trial,” the record contains legally and factually sufficient evidence to

support the jury’s verdict.

First, Wilson and Caraway both testified that the contract price of The Villas

was $21.5 million and the contract itself was entered into evidence. Second, both

the contract and the testimony at trial showed that when RP West demanded IRI to

forfeit the earnest money, IRI gave RP West $215,000. In addition, the evidence at

trial further showed that RP West mitigated its damages by selling The Villas for

$16.9 million. Subtracting the earnest money and purchase price, both allowable

offsets, from the $21.5 million contract price results in a sum of $4,385,000, which

is $385,000 more than the jury awarded. IRI contends that the jury failed to

account for $3.8 million in earnings from The Villas that RP West earned between

2008 and 2010. However the evidence was in conflict on that matter, with Wilson

testifying that most of the income was used to pay for operating expenses. The jury

determines the credibility of the witnesses and the weight to be given their

testimony and resolves conflicts in the evidence. See Kroger, 261 S.W.3d at 319.

Having considered the evidence in this case, we hold that it is both legally and

factually sufficient to support the jury’s award of $4 million in damages. We

overrule IRI’s seventh issue.

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V. Attorney’s fees and pre- and post-judgment interest

In its eighth issue, IRI contends that the trial court erred in awarding

attorney’s fees and pre- and post-judgment interest to RP West. Assuming that it

prevails on its other issues, IRI argues that it, not RP West, is entitled to attorney’s

fees as the prevailing party. As we have explained, the trial court did not err in

ruling in favor of RP West. Accordingly, IRI was not and is not the prevailing

party and is not entitled to attorney’s fees. We overrule this issue.

Conclusion

We affirm the judgment of the trial court.

Michael Massengale

Justice

Panel consists of Justices Keyes, Higley, and Massengale.

Justice Keyes, concurring.

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