## Facts

- A buyer agreed to purchase approximately 756 acres near Frisco, Texas, for $40,000 per acre under a written real estate contract.
- Closing was contingent on obtaining rezoning acceptable to the buyer’s development plans, with closing set for the fifteenth day after successful completion of rezoning.
- The contract required staged earnest-money deposits: $100,000 at signing; $100,000 upon submission of the rezoning application; and $400,000 upon planning and zoning commission approval of zoning acceptable to the buyer “as applied for.”
- The buyer paid the first two deposits but did not pay the $400,000 deposit, contending the approved rezoning was not “as applied for” and thus did not trigger the third deposit.
- The planning and zoning commission approved zoning in late November 1999, and the city council approved it on January 4, 2000; the transaction did not close.
- The seller treated the buyer’s failure to pay the third deposit as a default and maintained the contract was terminated; both parties sued for breach.
- A jury found the seller breached the contract and awarded the buyer damages; the trial court also ordered specific performance even though no jury question was submitted on specific performance elements.

## Issues

1. Whether a party seeking specific performance of a real estate purchase contract must plead and prove, and generally obtain a fact-finder determination, that it was ready, willing, and able to timely perform its contractual obligations, and whether the contract’s contingency and earnest-money terms changed that requirement.
2. Whether the buyer waived an alternative claim for return of earnest money by failing to file a notice of appeal specifically challenging the adverse appellate ruling on that alternative ground.

## Decision

- The Supreme Court of Texas affirmed the denial of specific performance.
- The court held that readiness, willingness, and ability to perform is an essential element of specific performance and was not altered by the contract’s terms.
- Because no jury finding (and no deemed finding) established that element, and the evidence did not conclusively establish it as a matter of law, the buyer was not entitled to specific performance.
- The court reversed the ruling that the buyer waived its alternative claim for return of earnest money.
- The case was remanded to the trial court for further proceedings on the earnest-money claim.

## Legal Principles

- Specific performance is an equitable remedy requiring the claimant to plead and prove it was ready, willing, and able to timely perform its contractual obligations.
- The readiness-to-perform requirement applies even if the opposing party has breached or repudiated the contract.
- A claimant ordinarily must obtain an express (or properly deemed) fact-finder determination on readiness, willingness, and ability; the absence of such a finding is fatal unless the element is conclusively established as a matter of law.
- Contract provisions making closing contingent on events (including rezoning) and structuring earnest-money obligations do not eliminate the equitable requirement that the party seeking specific performance demonstrate ability to perform.
- An alternative ground of recovery is not necessarily waived on appeal where it has been adequately preserved, even if an intermediate appellate court ruled otherwise.

## Conclusion

The court rejected specific performance because the buyer failed to secure a required fact-finder determination that it was ready, willing, and able to perform, but it allowed the buyer to continue pursuing an alternative contractual remedy for return of earnest money on remand.


DiGiuseppe v. Lawler, 269 S.W.3d 588 (Tex. 2008)