Rajinder Singh, Rita Kaur, Rajiv Chhabra and Gauri Chhabra v. Slawomir J. Skibicki and a & Skipol, Inc. ( 2015 )

Opinion issued December 3, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00825-CV
———————————
RAJINDER SINGH, RITA KAUR, RAJIV CHHABRA, AND GAURI
CHHABRA, Appellants
V.
SLAWOMIR J. SKIBICKI AND A & SKIPOL, INC., Appellees
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Case No. 2013-76488
MEMORANDUM OPINION
Appellees, Slawomir J. Skibicki and A & Skipol, Inc. (collectively,
“Skibicki”), entered into a commercial real estate development project with several
individuals and entities (“the remaining owners”), including the four appellants in
this case, Rajinder Singh, Rita Kaur, Rajiv Chhabra, and Gauri Chhabra
(collectively, “Singh”). Skibicki later sued the remaining owners for breach of a
settlement agreement and sought actual damages or, alternatively, specific
performance of the terms of the agreement. Skibicki moved for summary
judgment on his own claims, and the trial court ultimately rendered summary
judgment in his favor. In four issues, Singh contends that: (1) the trial court erred
in awarding Skibicki specific performance; (2) the settlement agreement limited
Skibicki’s remedies to specific performance and injunctive relief, and he was not
entitled to “specific performance of payment or a judgment for damages”; (3) the
trial court improperly overruled his objections to Skibicki’s summary judgment
evidence; and (4) Skibicki failed to establish that he complied with his obligations
under the settlement agreement.
We affirm.
Background
In 2010, Skibicki invested in a real estate project involving the development
of condominiums and commercial retail units in Houston (“the Project”) alongside
the remaining owners, including the four appellants in this case—Singh, Kaur, and
the Chhabras—and several other individuals and entities, including Indopol
Houston, LLC, Naseem Hussain, Tahera Chowdhury, Enterprise Houston, Inc.,
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Sharif Choudhury, SCH Investments, LLC, Amir Hussain, and SCH-Trident, Ltd.1
Skibicki invested over $1.5 million in the Project and obtained a 15% ownership
interest in Indopol Houston.
Over the course of the next two years, the parties were involved in numerous
disputes concerning the Project and the operation of Indopol Houston. In 2012,
Skibicki and the remaining owners entered into a Compromise Settlement
Agreement and Release (“the Agreement”), in which they agreed to release all
claims against each other except for those arising out of the Agreement itself. The
remaining owners also agreed to purchase Skibicki’s ownership interest in Indopol
Houston for $1,776,475. The parties agreed to the following payment schedule:
(i) The sum of $400,000.00 (the “Initial Payment”) shall be due
and payable on or before March 31, 2013. If, at any time prior
to March 31, 2013, the [remaining owners] close on the sale of
any condominium unit in Building 1 of the Project, [the
remaining owners] shall pay to [Skibicki] the sum of
$20,000.00 per unit and such amount shall be applied toward
the Initial Payment. Such amount shall be due and payable
upon the closing of the sale of each unit and [Skibicki] shall
execute and deliver to [the remaining owners] a Partial Release
of the Deed of Trust (described in subparagraph (iv) below)
covering such unit. Notwithstanding the number of units sold
on or before March 31, 2013, the full amount of the Initial
Payment shall be paid no later than March 31, 2013.
1
Of the remaining owners, only Singh, Kaur, the Chhabras, Tahera Chowdhury,
Sharif Choudhury, and Enterprise Houston, Inc., appealed the trial court’s
summary judgment ruling. Chowdhury, Choudhury, and Enterprise Houston
voluntarily moved to dismiss their appeal, and this Court granted that motion on
December 11, 2014. Thus, the only remaining appellants are Singh, Kaur, and the
Chhabras.
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(ii) The remainder of the Purchase Price, being $1,376,475.00 (the
“Final Payment”), shall be due and payable on or before
October 31, 2013; provided, however, [the remaining owners]
shall be entitled to eight (8) extensions of one (1) month each,
provided that upon each monthly extension the Purchase Price
shall be increased by $8,000.00 for the first five (5) extensions
and by $10,000.00 for the next three (3) extensions. If all eight
(8) extensions are exercised, the Final Payment shall be
$1,446,475.00 and shall be due and payable on June 30, 2014.
In the event that [Skibicki] has not received the Final Payment
by the then required due date, then it shall be deemed that [the
remaining owners] have exercised their right for an extension.
The Agreement provided that the remaining owners would execute both a deed of
trust and a security agreement for Skibicki’s benefit to secure their payment of the
purchase price for his ownership interest in Indopol Houston. The Agreement
required Skibicki to execute and deliver an assignment of his membership interest
in Indopol Houston.
The Agreement also included the following provisions relevant to Skibicki’s
remedies in the event the remaining owners defaulted on their obligations:
5. LIMITATION ON [SKIBICKI’S] REMEDIES. Upon any
default by [the remaining owners] under this Agreement, including
but not limited to, [the remaining owners’] failure to timely pay to
[Skibicki] the Purchase Price in accordance with Paragraph 2.G of this
Agreement, [Skibicki’s] sole and exclusive remedy shall be to enforce
the specific terms of this Agreement and/or exercise its rights under
the Deeds of Trust and Security Agreement securing [Skibicki].
....
7. REMEDIES. For the enforcement of any of the provisions of
this Agreement, each party shall have the rights to specific
performance and injunctive relief in the broadest sense necessary to
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effect the protection and rights which the party has acquired under this
Agreement. Further, [Skibicki’s] recordation of the Deed of Trust
without providing [the remaining owners] with notice and opportunity
to cure as required by Paragraph 2(G)(vi) will cause [the remaining
owners] to sustain loss and damage which will be difficult to ascertain
and measure, and for which [the remaining owners] will have no
adequate remedy at law. It is, therefore, reasonable and necessary that
[the remaining owners] be accorded the equitable remedies of specific
performance and injunctive relief.
Skibicki and all of the remaining owners signed the Agreement.
On December 20, 2013, Skibicki filed suit against the remaining owners,
alleging that he had complied with all conditions precedent to recovery and that the
remaining owners had not fulfilled their payment obligations under the Agreement.
Skibicki sought actual damages in his original petition for the remaining owners’
breach of the Agreement, and he later amended his petition to seek specific
performance under section five of the Agreement. Skibicki alleged that if he could
not collect damages from the remaining owners, he would not have an adequate
remedy at law to compensate for the remaining owners’ breach, that he was “ready,
willing, and able to perform” under the Agreement, and that he had performed his
obligations under the Agreement.
Skibicki moved for summary judgment on his claim for breach of the
Agreement. Skibicki argued that the remaining owners breached the Agreement
when they failed to timely pay the purchase price for Skibicki’s membership
interest in Indopol Houston. He argued that, as a result, he had incurred damages
5
in the amount of $1,846,475 and that he should recover that amount either as actual
damages or through specific performance of the remaining owners’ payment
obligations under the Agreement.
As summary judgment evidence, Skibicki attached his affidavit, in which he
generally described his course of dealing with the remaining owners, as well as the
remaining owners’ obligations under the Agreement. He averred that the
remaining owners “have not timely delivered payment to me and thus failed to
meet their obligations under the Agreement.” He also averred that he was entitled
to specific performance under the Agreement and that he “was ready to perform
and did perform [his] obligations under the Agreement.” He also attached a copy
of the Agreement signed by all parties as summary judgment evidence, although
this copy was not accompanied by either the deed of trust or the security agreement
referenced within the Agreement and executed by the remaining owners, nor was
the Agreement accompanied by a business records affidavit.
The remaining owners responded and raised numerous objections to
Skibicki’s summary judgment evidence. The remaining owners also argued that
Skibicki was not entitled to actual damages because the Agreement contained a
provision that limited his remedies to either specific performance and/or exercising
his rights under the deed of trust and security agreement. The remaining owners
then argued that, in this case, “an award of specific performance by this Court
6
would be impractical and not proper under Texas law.” The remaining owners
argued that specific performance is only appropriate in cases in which no adequate
remedy at law exists, and they argued that an adequate remedy at law is available
in this case because Skibicki could exercise his rights under the deed of trust and
security agreement. The remaining owners specifically stated in their response that
the “Plaintiffs and all the Defendants in the current litigation” entered into the
Agreement.
The trial court held a hearing on Skibicki’s summary judgment motion on
August 11, 2014, and, one day later, Skibicki filed an amended summary judgment
motion. Skibicki made the same arguments for why summary judgment should be
granted in his favor, but he acknowledged that the remaining owners had paid him
$200,000. Thus, he sought either actual damages in the amount of $1,646,475 or
specific performance of payment of this amount under the terms of the Agreement.
As summary judgment evidence, Skibicki again attached an affidavit, in
which he averred:
In November 2012, I (along with A & Skipol, Inc., an entity under my
control) and Defendants entered into the Compromise Settlement
Agreement and Release (“the Agreement”). A true and correct copy
of the Agreement is attached to Plaintiff’s Amended Motion for
Summary Judgment as Exhibit “B.” The Defendants and I, along with
our attorneys, negotiated the Agreement. I signed and approved it, as
did all of the Defendants. True and correct copies of the Agreement
have been attached as Exhibits to Defendants’ Motion to Transfer
Venue and Response to Motion to Sever. Under the Agreement, the
Defendants agreed to extricate me from the Project in exchange for a
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release of claims. Defendants agreed to purchase my interest in the
Project for $1,776,475.00 (“the Indebtedness”). The Agreement also
provides that if the final installment is not timely received by October
31, 2013, Defendants agree to purchase monthly extensions for up to
eight consecutive months until payment is delivered in full. The first
five extensions cost $8,000.00 each; the next three cost $10,000.00
each. As of the date of this Motion, Defendants have purchased all
extensions for $70,000.00. Defendants have not timely delivered
payment to me and thus failed to meet their obligations under the
Agreement. The amount owed to me under the Agreement is
$1,846,475.00. However, the defendants in this lawsuit
(“Defendants”) have paid $200,000.00 of the total amount owed to
me. Therefore, after accounting for all proper offsets, Defendants
owe me $1,646,475.00.
I am entitled to recover damages equal to the Indebtedness plus the
late-payment extensions. My total damages are $1,646,475.00.
Alternatively, I am entitled to specific performance under the
Agreement. Also, I was ready to perform and did perform my
obligations under the Agreement by transferring my interest in
Indopol Houston, LLC to Defendants.
Skibicki also attached as evidence a signed copy of the Agreement, a notice of
default sent by Skibicki’s attorney to Rajiv Chhabra after the remaining owners
failed to make the Initial Payment under the Agreement, a copy of the Agreement
signed only by Skibicki with an attached copy of the security agreement, and a
signed assignment of his 15% membership interest in Indopol Houston to the
remaining owners.
The remaining owners again filed a response in which they stated that
“Plaintiffs and all the Defendants in the current litigation” entered into the
Agreement. The remaining owners objected to several statements in Skibicki’s
8
affidavit, including Skibicki’s statements concerning the terms of the Agreement as
hearsay and not the best evidence of the Agreement. The remaining owners
objected to Skibicki’s statement of the amount owed to him as conclusory, and
they objected that Skibicki’s “affidavit conflicts with the terms and conditions of
the Agreement that provides for [Skibicki’s] available remedies in the event of
breach of the Agreement” as impermissible parol evidence. The remaining owners
objected to the copy of the Agreement on the basis that Skibicki did not properly
authenticate their signatures to the Agreement and that the Agreement was
inadmissible hearsay because it was not accompanied by a business records
affidavit. The remaining owners objected to the assignment of interest on the basis
that it was inadmissible hearsay because it was not accompanied by a business
records affidavit and on the basis that it was irrelevant to the question of whether
the remaining owners had paid Skibicki pursuant to the Agreement.
The remaining owners argued that Skibicki failed to present admissible
evidence of a valid and enforceable agreement and evidence “that the Responding
Defendants breached the agreement because the applicable allegations in the
affidavits, the compromise settlement agreement, notice of default, and assignment
of interest are inadmissible.” The remaining owners again argued that Skibicki
was not entitled to actual damages under the Agreement because it limited his
remedies to “specific performance of the terms of the Agreement and/or exercising
9
[Skibicki’s] rights under the Deeds of Trust and Security Agreement.” The
remaining owners contended that because Skibicki failed to attach an admissible
copy of the deed of trust or security agreement to his summary judgment motion,
the trial court should deny summary judgment.
On September 12, 2014, the trial court granted Skibicki’s summary
judgment motion, ruling that Skibicki was entitled to specific performance and that
the remaining owners were required to perform the Agreement by paying Skibicki
$1,646,475. The trial court also awarded Skibicki $19,242 in trial-level attorney’s
fees and a total of $6,000 in conditional appellate-level attorney’s fees. In a
separate order, the trial court overruled all of the remaining owners’ objections to
Skibicki’s summary judgment evidence. After the trial court denied Singh’s
motion for new trial, this appeal followed.
Objections to Summary Judgment Evidence
In his third issue, Singh contends that the trial court improperly overruled his
objections to Skibicki’s summary judgment evidence.
We review a trial court’s ruling on objections to summary judgment
evidence for an abuse of discretion. Chandler v. CSC Applied Techs., LLC, 376
S.W.3d 802, 824 (Tex. App.—Houston [1st Dist.] 2012, pet. denied); Finger v.
Ray, 326 S.W.3d 285, 290 (Tex. App.—Houston [1st Dist.] 2010, no pet.). A trial
court abuses its discretion when it rules “without regard for any guiding rules or
10
principles.” Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.
1998) (quoting City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995)).
To obtain reversal for the erroneous admission of evidence, the appellant must
establish that the error was harmful, that is, that the erroneous admission was
calculated to cause and probably did cause the rendition of an improper judgment.
In re Estate of Denman, 362 S.W.3d 134, 141 (Tex. App.—San Antonio 2011, no
pet.). Errors in the admission of evidence are generally not reversible unless the
appellant can demonstrate that the entire cause turns on the complained-of
evidence. Id.; see also Interstate Northborough P’ship v. State, 66 S.W.3d 213,
220 (Tex. 2001) (“Typically, a successful challenge to a trial court’s evidentiary
rulings requires the complaining party to demonstrate that the judgment turns on
the particular evidence excluded or admitted.”).
In arguing that the trial court improperly overruled his objections to
Skibicki’s summary judgment evidence, Singh only generally refers to the
objections that he made in his summary judgment response. Singh cites no law
relevant to his objections; he does not demonstrate why the trial court abused its
discretion in overruling his objections; and he does not demonstrate that the trial
court’s evidentiary rulings probably caused the rendition of an improper judgment.
An appellate brief “must contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record.” TEX. R. APP. P.
11
38.1(i). We conclude that Singh has not adequately briefed his issue on appeal
concerning his evidentiary objections. See id.; Cruz v. Van Sickle, 452 S.W.3d
503, 511 (Tex. App.—Dallas 2014, pet. denied) (refusing to consider appellant’s
challenges to trial court’s evidentiary rulings when appellant did not “identify the
specific objections he intend[ed] to challenge” and “provide[d] no discussion or
legal authority in the argument section of his brief to support his challenges to the
trial court rulings”).
We overrule Singh’s fourth issue.
Summary Judgment
In his first issue, Singh contends that the trial court erred in ordering specific
performance of the payment obligations under the Agreement. In his second issue,
Singh contends that the Agreement limits Skibicki’s remedies to specific
performance and injunctive relief and “bars specific performance of payment or a
judgment for damages.” In his fourth issue, Singh argues that Skibicki was not
entitled to specific performance because he failed to establish that he had complied
with his obligations under the Agreement. We consider these issues together.
A. Standard of Review
We review a trial court’s ruling on a summary judgment motion de novo.
Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). To prevail on a
traditional summary judgment motion, the movant bears the burden of proving that
12
no genuine issues of material fact exist and that it is entitled to judgment as a
matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors,
Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). When a plaintiff moves for
summary judgment, he must prove that he is entitled to judgment as a matter of
law on each element of his cause of action. See MMP, Ltd. v. Jones, 710 S.W.2d
59, 60 (Tex. 1986) (per curiam); Cleveland v. Taylor, 397 S.W.3d 683, 696–97
(Tex. App.—Houston [1st Dist.] 2012, pet. denied).
A matter is conclusively established if reasonable people could not differ as
to the conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168
S.W.3d 802, 816 (Tex. 2005); Cleveland, 397 S.W.3d at 697. If the movant meets
his burden, the burden then shifts to the nonmovant to raise a genuine issue of
material fact precluding summary judgment. See Centeq Realty, Inc. v. Siegler,
899 S.W.2d 195, 197 (Tex. 1995); Goodyear Tire & Rubber Co. v. Mayes, 236
S.W.3d 754, 755 (Tex. 2007) (per curiam) (stating that summary judgment
evidence raises fact issue if reasonable and fair-minded jurors could differ in their
conclusions in light of all evidence presented). To determine if the nonmovant
raised a fact issue, we review the evidence in the light most favorable to the
nonmovant, crediting favorable evidence if reasonable jurors could and
disregarding contrary evidence unless reasonable jurors could not. Fielding, 289
S.W.3d at 848 (citing City of Keller, 168 S.W.3d at 827); Cleveland, 397 S.W.3d at
13
697. We indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.
2002) (citing Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997));
Cleveland, 397 S.W.3d at 697.
We must affirm a summary judgment order if any of the grounds presented
to the trial court are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128
S.W.3d 211, 216 (Tex. 2003); Cleveland, 397 S.W.3d at 697.
B. Skibicki’s Entitlement to Specific Performance
Parties to a contract are free to limit or modify the remedies available for
breach of their agreement. Weaver v. Jamar, 383 S.W.3d 805, 812 (Tex. App.—
Houston [14th Dist.] 2012, no pet.); GT & MC, Inc. v. Tex. City Ref., Inc., 822
S.W.2d 252, 256 (Tex. App.—Houston [1st Dist.] 1991, writ denied) (“Parties to a
contract may agree on remedies for breach and that the agreed remedy is
exclusive.”). If the parties agree to a particular contractual remedy, the court will
enforce that remedy unless it is illegal or against public policy. 2 Weaver, 383
S.W.3d at 812. “This is part of our duty to determine and enforce the true intent of
the parties involved.” Id.
When construing a written contract, the primary concern of the court is to
ascertain the true intentions of the parties as expressed in the contract. Seagull
2
Singh has made no argument, either in the trial court or on appeal, that ordering
specific performance in this case is illegal or against public policy.
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Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006);
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex. 2005). We presume
that the parties intended for every clause to have some effect. Forest Oil Corp. v.
Eagle Rock Field Servs., LP, 349 S.W.3d 696, 699 (Tex. App.—Houston [14th
Dist.] 2011, no pet.) (citing Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118,
121 (Tex. 1996)); see also Valence Operating Co., 164 S.W.3d at 662 (stating that
courts should “examine and consider the entire writing in an effort to harmonize
and give effect to all the provisions of the contract so that none will be rendered
meaningless”). We give contract terms their plain, ordinary, and generally
accepted meanings unless the contract itself shows them to be used in a technical
or different sense. Valence Operating Co., 164 S.W.3d at 662; Limestone Grp.,
Inc. v. Sai Thong, L.L.C., 107 S.W.3d 793, 797 (Tex. App.—Amarillo 2003, no
pet.) (stating that in determining what parties mean by particular term, court “must
afford the word its plain, everyday meaning”); GT & MC, Inc., 822 S.W.2d at 256
(stating that language used by parties in contract “should be accorded its plain,
grammatical meaning unless it definitely appears that the parties’ intention would
thereby be defeated”).
Specific performance is an equitable remedy that may be awarded upon a
showing of breach of contract. Luccia v. Ross, 274 S.W.3d 140, 146 (Tex. App.—
Houston [1st Dist.] 2008, pet. denied); Stafford v. S. Vanity Magazine, Inc., 231
15
S.W.3d 530, 535 (Tex. App.—Dallas 2007, pet. denied). The essential elements of
a claim for breach of contract are: (1) the existence of a valid contract;
(2) performance or tendered performance by the plaintiff; (3) breach of the contract
by the defendant; and (4) damages sustained by the plaintiff as a result of the
breach. Luccia, 274 S.W.3d at 146 (citing Valero Mktg. & Supply Co. v. Kalama
Int’l, 51 S.W.3d 345, 351 (Tex. App.—Houston [1st Dist.] 2001, no pet.)). A party
seeking specific performance must demonstrate that he is ready, willing, and able
to perform the contract. Id.; see also DiGiuseppe v. Lawler, 269 S.W.3d 588, 594
(Tex. 2008) (“It is also a general rule of equity jurisprudence in Texas that a party
must show that he has complied with his obligations under the contract to be
entitled to specific performance.”). Specific performance may be awarded at the
trial court’s discretion. Paciwest, Inc. v. Warner Alan Props., LLC, 266 S.W.3d
559, 571 (Tex. App.—Fort Worth 2008, pet. denied).
Here, the Agreement obligates Skibicki to assign his membership interest in
Indopol Houston to the remaining owners. The Agreement obligates the remaining
owners to pay Skibicki a total of $1,776,475 for his membership interest and sets
out a timetable for payment of the purchase price of the interest. The Agreement
also specifically addresses the remedies available to each party in the event of a
breach:
5. LIMITATION ON [SKIBICKI’S] REMEDIES. Upon any
default by [the remaining owners] under this Agreement, including
16
but not limited to, [the remaining owners’] failure to timely pay to
[Skibicki] the Purchase Price in accordance with Paragraph 2.G of this
Agreement, [Skibicki’s] sole and exclusive remedy shall be to enforce
the specific terms of this Agreement and/or exercise [his] rights under
the Deed of Trust and Security Agreement securing [Skibicki].
6. LIMITATION ON [THE REMAINING OWNERS’]
REMEDIES. Upon any default by [Skibicki] under this Agreement,
[the remaining owners’] sole and exclusive remedy shall be to enforce
the specific terms of this Agreement.
7. REMEDIES. For the enforcement of any of the provisions of
this Agreement, each party shall have the rights to specific
performance and injunctive relief in the broadest sense necessary to
effect the protection and rights which the party has acquired under this
Agreement. . . .
(Emphasis added.)
Skibicki and the remaining owners were free to contractually limit their
available remedies in the event of a breach, and both parties did so in the
Agreement. See Weaver, 383 S.W.3d at 812. The Agreement states, in plain
language, that upon any default by the remaining owners under the Agreement,
including a default resulting from a failure to pay the purchase price for Skibicki’s
membership interest in accordance with the terms of the Agreement, Skibicki’s
remedy is limited to “enforce[ing] the specific terms” of the Agreement “and/or
exercise[ing his] rights under the Deed of Trust and Security Agreement.” The
unambiguous language of the Agreement thus entitles Skibicki, upon a breach by
the remaining owners, to seek specific performance of the terms of the Agreement,
which include payment of the remaining owners’ payment obligations to him, to
17
seek relief under the deed of trust and security agreement, or to do both. See
Valence Operating Co., 164 S.W.3d at 662 (stating that, in construing contracts,
we give effect to all provisions and we give contract terms “their plain, ordinary,
and generally accepted meanings”). The Agreement does not, as Singh contends
on appeal, limit Skibicki’s remedy solely to pursuing his rights under the deed of
trust and security agreement.
Singh argues that Skibicki is not entitled to specific performance because he
cannot establish that he lacks an adequate remedy at law. Generally, specific
performance may not be awarded to a party unless that party demonstrates that
there is no adequate remedy at law. See S. Plains Switching, Ltd. v. BNSF Ry. Co.,
255 S.W.3d 690, 703 (Tex. App.—Amarillo 2008, pet. denied); Stafford, 231
S.W.3d at 535 (“Specific performance is not a separate cause of action, but rather it
is an equitable remedy used as a substitute for monetary damages when such
damages would not be adequate.”). Here, however, the parties contractually
agreed to limit their remedies in the event of a breach to specific performance of
the terms of the Agreement, although Skibicki also retained the option to pursue
his rights under the deed of trust and security agreement in lieu of or in addition to
enforcing the specific terms of the Agreement. Because the parties expressly
agreed to limit their remedies to specific performance of the Agreement, Skibicki
need not also establish that he lacks an adequate remedy at law to be entitled to
18
specific performance as a result of Singh’s breach of the Agreement. See Weaver,
383 S.W.3d at 812 (stating that if parties agree to particular contractual remedy,
courts will enforce that remedy unless it is illegal or against public policy).
Singh also argues on appeal that “given the threats made by Skibicki, there
was a fact question regarding whether [Skibicki was] entitled to this equitable
remedy” of specific performance. In the trial court, Tahera Chowdhury, Sharif
Choudhury, and Enterprise Houston, Inc. filed a separate summary judgment
response from Singh and the remaining owners. In that response, they argued that
Choudhury and Chowdhury had not wanted to enter into the Agreement, but “Mr.
Skibicki made statements that he intended to use force to effectuate the
agreement.”
The doctrine of unclean hands operates as a bar to the equitable remedy of
specific performance. Paciwest, Inc., 266 S.W.3d at 571; Stafford, 231 S.W.3d at
536 n.4. The party claiming unclean hands has the burden to demonstrate that it
was injured by the other party’s unlawful or inequitable conduct. Paciwest, Inc.,
266 S.W.3d at 571; Stafford, 231 S.W.3d at 536 n.4. This doctrine should not be
applied unless the party asserting it has been seriously harmed and the wrong
complained of cannot be corrected without application of the doctrine. Dunnagan
v. Watson, 204 S.W.3d 30, 41 (Tex. App.—Fort Worth 2006, pet. denied) (citing
19
City of Fredericksburg v. Bopp, 126 S.W.3d 218, 221 (Tex. App.—San Antonio
2003, no pet.)).
Neither Choudhury nor the rest of the remaining owners raised duress or
unclean hands as an affirmative defense in the trial court. Singh presented no
evidence that Skibicki ever made similar alleged comments to him or that he
suffered an injury due to Skibicki’s alleged comments to Choudhury. As the party
claiming unclean hands, Singh had the burden to demonstrate in the trial court that
he was injured by Skibicki’s allegedly unlawful conduct. See Paciwest, Inc., 266
S.W.3d at 571; Stafford, 231 S.W.3d at 536 n.4. Because Singh failed to make this
showing in the trial court, he cannot rely on the unclean hands doctrine to bar
specific performance in favor of Skibicki.
In his fourth issue, Singh contends that Skibicki failed to prove that he
“complied with all of [his] necessary obligations and had an enforceable contract.”
Singh argues that the Agreement required the “Withdrawing Owner,” defined in
the Agreement as both Skibicki and A & Skipol, Inc., to assign its membership
interest in Indopol Houston to the remaining owners, that Skibicki attached to his
summary judgment motion a purported assignment of his individual interest in
Indopol Houston, that the remaining owners objected to this document as
“unauthenticated and inadmissible hearsay,” and that no evidence of an
20
enforceable agreement between the parties exists “because A & Skipol, Inc., never
transferred its interest, which it was required to do . . . pursuant to the Agreement.”
Singh and the other remaining owners objected in the trial court to the
assignment of interest that Skibicki attached to his summary judgment motion.
However, they objected on the basis of hearsay, authenticity, and relevancy. The
remaining owners argued that, “as specified in the objections cited above and
incorporated by reference herein, none of the foregoing [pieces of evidence
attached by Skibicki to his motion] contain admissible evidence of a valid and
enforceable agreement and that the Responding Defendants breached the
agreement . . . .” The remaining owners argued in the trial court that Skibicki did
not provide competent evidence demonstrating a valid and enforceable agreement
or that they breached the agreement. They did not argue that Skibicki failed to
present evidence of performance or tender of performance. They also did not
object to the assignment of interest on the basis that it did not properly transfer A
& Skipol’s interest in Indopol Houston and, thus, that it rendered the Agreement
unenforceable. Singh and the remaining owners did not raise this argument until
their motion for new trial.
“Issues not expressly presented to the trial court by written motion, answer
or other response shall not be considered on appeal as grounds for reversal” of a
summary judgment ruling. TEX. R. CIV. P. 166a(c). In reviewing an order granting
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summary judgment, we are restricted to the arguments expressly presented to the
trial court in the written summary judgment motion and the written response.
Ritchey v. Pinnell, 324 S.W.3d 815, 821 (Tex. App.—Texarkana 2010, no pet.);
Driskill v. Ford Motor Co., 269 S.W.3d 199, 206 (Tex. App.—Texarkana 2008, no
pet.) (“A summary judgment cannot be reversed on appeal based on an issue that
was not expressly and timely presented to the trial court by written response or
other document.”); see also City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 679 (Tex. 1979) (“[T]he non-movant must now, in a written answer
or response to the motion, expressly present to the trial court those issues that
would defeat the movant’s right to a summary judgment and failing to do so, may
not later assign them as error on appeal.”).
Singh objected to the assignment of interest in his summary-judgment
response on three bases: authenticity, hearsay, and relevancy. He did not argue
that the assignment of interest was ineffective because it purportedly transferred
only Skibicki’s interest in Indopol Houston and not A. & Skipol, Inc.’s interest.
He did not argue that, as a result of this purported failure, the Agreement was
unenforceable or that Skibicki did not perform or tender performance under the
Agreement. Because Singh did not raise this argument in his summary-judgment
response, he cannot rely upon this argument on appeal to support reversal of the
trial court’s summary judgment ruling. See Clear Creek Basin Auth., 589 S.W.2d
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at 679 (stating that nonmovant must state in written answer or response to
summary judgment motion all issues that would defeat movant’s right to summary
judgment and, if it does not, it may not “assign them as error on appeal”); Driskill,
269 S.W.3d at 206 (stating that we may not reverse summary judgment ruling on
issue not expressly and timely presented to trial court in written response).
The plain language of the Agreement provides that, in the event of a default
by the remaining owners, including a default resulting from the remaining owners’
failure to pay the purchase price for Skibicki’s membership interest in Indopol
Houston, Skibicki may seek to “enforce the specific terms of [the] Agreement.”
We therefore conclude that the trial court appropriately ruled that Skibicki is
entitled to specific performance under the terms of the Agreement, and, thus, the
trial court did not err by granting Skibicki’s summary judgment motion and
requiring the remaining owners, including Singh, to pay Skibicki $1,646,475
pursuant to the terms of the Agreement.
We overrule Singh’s first, second, and fourth issues.
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Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Jennings, Keyes, and Bland.
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