Sunday, October 19, 2008

Specific Performance: DiGuiseppe v. Lawler (Tex. 2008)

DiGiuseppe vs. Lawler,
No. 04-0641 (Tex. Oct. 17, 2008) (specific performance remedy, real estate sale)


We affirm the holding of the court of appeals that the contract at issue in this case does not alter DiGiuseppe’s obligation to prove and secure a finding of fact that he was ready, willing, and able to perform his obligations under the purchase contract as a prerequisite to obtaining the equitable relief of specific performance. In affirming this part of the court of appeals’ judgment, we hold that an essential element in obtaining the equitable remedy of specific performance is that the party seeking such relief must plead and prove he is ready, willing, and able to timely perform his obligations under the contract. We also affirm the holding of the court of appeals that such a finding cannot be deemed based on the jury charge as submitted under Rule 279. Finally, we reverse the court of appeals’s holding that DiGiuseppe waived his claim to the alternate ground of recovery under the purchase contract relating to refund of the earnest money, and hold that he should have an opportunity to present this claim to the trial court for disposition. Accordingly, we affirm the judgment of the court of appeals in part, reverse in part, and remand the cause to the trial court for further proceedings consistent with this opinion.

NICK DIGIUSEPPE D/B/A SOUTHBROOK DEVELOPMENT CO. AND FRISCO MASTER PLAN v. ROGER LAWLER; from Collin County; 5th district (05-03-00468-CV, ___ SW3d ___, 06-03-04) The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the trial court.Justice Alan Waldrop delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined. Justice Green delivered a dissenting opinion, in which Chief Justice Jefferson, Justice O'Neill, and Justice Johnson joined. (Justice Waldrop sitting by commission pursuant to Section 22.005 of the Texas Government Code) (Justice Medina not sitting)

Tags: real estate transactions real estate litigation homeowner law purchase for sale specific performance

No comments: