law-specific-performance | real estate litigation | real estate transactions contracts for sale |
A party seeking specific performance must plead and prove that it is ready, willing, and able to perform its
part of the contract according to its terms. See 17090 Parkway, Ltd. v. McDavid, 80 S.W.3d 252, 258
(Tex.App.-Dallas 2002, pet. denied); Holt v. Elliott Indus. Inc., 711 S.W.2d 435, 437 (Tex.App.-Fort Worth
1986, no writ). As [party] never raised specific performance as a defensive issue with the trial court, it is
waived. See generally Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex.1993) (holding that a claim, including a
constitutional claim, generally must have been asserted in the trial court to be preserved on appeal).
Among other things, to be entitled to specific enforcement of a contract, a party must show that the contract
in question is valid and enforceable. See Nguyen v. Woodley, 273 S.W.3d 891, 898 (Tex.App.-Houston [14th
Dist.] 2008, no pet. h.).
Specific performance is an equitable remedy committed to the trial court's discretion. Stafford v. S. Vanity
Magazine, Inc., 231 S.W.3d 530, 535 (Tex.App.-Dallas 2007, pet. denied). A decree of specific performance
is not a matter of right even to enforce terms of a contract, 127 but is "a matter of grace" in the discretion of
the court. Roundville Partners, L.L.C. v. Jones, 118 S.W.3d 73, 79 (Tex.App.-Austin 2003, pet. denied).
SPECIFIC PERFORMANCE OF CONTRACT - HOUSTON CASE LAW
Luccia v. Ross (Tex.App.- Houston [1st Dist.] Sep. 4, 2008)(Alcala)
(lease law, real estate sale purchase option for property, specific performance)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Alcala
Before Justices Taft, Keyes and Alcala
01-07-00080-CV Paul Luccia, Individually and d/b/a Cabot & Rowe v. Kathryn L. Ross
Appeal from 80th District Court of Harris County
Trial Court Judge: Hon. Kent C. Sullivan
Potcinske v. McDonald Property Investments, Ltd. (Tex.App.- Houston [1st Dist.] Jun 15, 2007)(Higley)
(real estate, BoC)(real estate case law, contract for sale of real property, breach of contract, BoC, specific
performance) AFFIRM TC JUDGMENT: Opinion by Justice Higley
Before Judge Wilson, Justices Keyes and Higley
01-06-00718-CV Jon A. Potcinske v. McDonald Property Investments, LTD
Appeal from 334th District Court of Harris County (Hon Sharon McCally)
Gulliver v. Shafer No.14-07-00217-CV Tex.App.- Houston [14th Dist.] Jan. 15, 2008)(Anderson)(real estate
sale, specific performance, rescission)
REVERSED AND REMANDED: Opinion by Justice Anderson
Before Chief Justice Hedges, Justice Anderson, Senior Justice Murphy
Joel Gulliver ET UX, Mary Ann Gulliver v. Lee Shafer ET UX, Pamela Shafer
Appeal from County Court at Law No 1 of Fort Bend County (Hon. Ben "Bud" W. Childers)
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