Richard Pickard v. LJH Enterprises, Inc. ( 2010 )

Opinion issued April 15, 2010.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-07-01105-CV

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Richard Pickard, Appellant

V.

LJH Enterprises, Inc., Appellee

On Appeal from the 151st District Court

Harris County, Texas

Trial Court Case No. 2003-30506

MEMORANDUM OPINION

          Appellant, Richard Pickard, brings this appeal seeking to modify the trial court’s judgment granting him the relief of specific performance.  Pickard sued appellee, LJH Enterprises, Inc., seeking damages and specific performance for LJH’s breach of a contract to sell Pickard an apartment complex.  After a jury trial, the trial court rendered judgment in favor of Pickard for $79,511.38 for breach of contract, specific performance of the parties’ contract, attorney’s fees for trial and appeal, and post-judgment interest.  In two issues on appeal, Pickard contends the final judgment ordering the equitable remedy of specific performance is inadequate to achieve equity in this case.  Specifically, Pickard asserts the judgment should provide for a management company to take control of the apartment complex to bring the property up to a condition similar to the condition it was in at the time of LJH’s breach and that the contract should be “updated” to take into account the changes in the condition of the property and changed financial situation since the time of the breach.  In two issues on cross-appeal, LJH contends that the trial court erred by awarding damages in addition to specific performance and that Pickard never proved he was ready, willing, and able to perform the contract as required for specific performance.  We conclude that the trial court did not abuse its discretion in ordering specific performance in accordance with the terms of the parties’ agreement.  We further conclude LJH has waived its issues by failing to adequately brief them.  We affirm.

Background

          In December 2002, Pickard and LJH entered into an earnest money contract for the sale of an apartment complex in Houston, Texas. The contract provided for a “Feasibility and Inspection Period” before the parties had to close on the contract. After two agreed extensions of the Feasibility and Inspection Period, the closing was to take place by April 15, 2003.

          Pickard arranged for his partner, Tyrone Jackson, to execute the closing documents on Friday, April 11, in Colorado.  Jackson would then send the documents to the title company in Houston, where Pickard and LJH would complete the closing on Monday, April 15.  LJH called Jackson and Pickard on April 11, cancelling the closing.  This suit for breach of contract followed.

          In his live pleading, Pickard sought both money damages and specific performance.  Pickard’s prayer for relief included a request that the trial court order a management company to “operate and maintain the [P]roperty in a professional manner during the preparation for sale of the Property to Pickard so that the value of the business conducted thereon will not be diminished prior to the acquisition of the Property by Pickard.”  Pickard’s live pleading did not request any of the specific terms he now contends should be included in the judgment in this case.

          The parties tried this case before a jury. The jury found that LJH breached the contract.  The trial court submitted a question for breach of contract damages for “Business Expenses,” “Lost Income,” and “Change/Loss of Interest Rate.”  In closing argument, Pickard explained what he sought for those elements.  Business expenses were the expenses Pickard incurred in 2003 to perform his part of the earnest money contract.  Lost income was the money that could have been earned from the property had it been sold in 2003.  The change or loss of interest rate was damages from the increase of interest rate from the rate Pickard could have obtained in 2003 to the higher rates available at time of trial.  The jury found damages of $3,762.56 for business expenses and $75,748.82 for lost income, but found Pickard suffered no damages due to a change or loss of the interest rate he could have obtained in 2003. 

          Pickard moved for entry of judgment and submitted a proposed judgment that included a provision that LJH turn over the property to a management company pending final sale to Pickard.  However, the trial court did not sign the proposed judgment. The trial court rendered judgment on the jury’s verdict and ordered specific performance in accordance with the terms of the earnest money contract. 

          After the court rendered its judgment, Pickard filed a motion to modify the judgment that included a request for the trial court to appoint a management company to run the property until it reached the level of net monthly income that it had in December 2002 when the parties entered into the earnest money contract.  Under Pickard’s proposed judgment, once this level was reached and maintained for six months, then the parties would be obligated to complete the sale of the property. This motion was the first time these terms were requested in the final judgment.  Pickard’s live petition did not contain these terms, nor did his original motion for entry of judgment.  The trial court did not rule on the motion to modify the judgment.  Pickard timely filed a notice of appeal and LJH timely filed its own notice of appeal.    

Specific Performance

          In two issues, Pickard asserts this court should modify the trial court’s judgment of specific performance.  Specifically, Pickard seeks a modification of the trial court’s judgment to appoint a management company to operate the property until the net monthly income reaches the level it had been in December 2002 (when the parties entered into the earnest money contract) for a period of six consecutive months.  Initially, we note that Pickard cites to no case enforcing specific performance in such a manner, but relies on cases discussing specific performance and equity in general.

          Specific performance is an equitable remedy available for a breach of contract.  Luccia v. Ross, 274 S.W.3d 140, 146 (Tex. App.—Houston [1st Dist.] 2008, pet. denied); Paciwest, Inc. v. Warner Alan Props., LLC, 266 S.W.3d 559, 571 (Tex. App.—Fort Worth 2008, pet. denied). Specific performance is not a matter of right, but a matter committed to the discretion of the trial court.  Paciwest, Inc., 266 S.W.3d at 571; Stafford v. S. Vanity Magazine, Inc., 231 S.W.3d 530, 535 (Tex. App.—Dallas 2007, pet. denied).  A trial court abuses its discretion when it acts arbitrarily or unreasonably and without reference to any guiding rules or principles.  Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).

          Pickard seeks additional relief that would require a third-party management company, not a party to this suit, to operate the property for an indefinite period until the net monthly income reached a certain level and remained there for six consecutive months.  The relief that Pickard seeks is more like a mandatory injunction than specific performance.  See S. Plains Switching, Ltd. Co. v. BNSF Ry. Co., 255 S.W.3d 690, 703 (Tex. App.—Amarillo 2008, pet. denied) (stating relief sought by party to enforce specific performance of agreement by ordering opposing party “to perform a continuous series of acts which extend through a long period of time” was “in essence” mandatory injunction).  To determine the propriety of enforcing specific performance by injunction or an order requiring continued acts into the future, we examine whether (1) an adequate remedy at law exists; (2) present performance is possible; (3) the agreement contains precise terms capable of enforcement; and (4) the injunction comports with the terms of the agreement.  Cytogenix, Inc. v. Waldroff, 213 S.W.3d 479, 487 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).

                   1.       Adequate Remedy at Law

          Specific performance is appropriate in cases where there is no adequate remedy at law.  S. Plains Switching, Ltd., 255 S.W.3d at 703; Cytogenix, Inc., 213 S.W.3d at 487 (citing Canteen Corp. v. Republic of Tex. Props., Inc., 773 S.W.2d 398, 401 (Tex. App.—Dallas 1989, no writ)).  An “irreparable injury” is one for which actual damages will not adequately compensate the injured party or the damages cannot be measured by any certain pecuniary standard.  Cytogenix, Inc., 213 S.W.3d at 488 (citing Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) and Canteen Corp., 773 S.W.2d at 401).  Because of the unique nature of real property, breach of a contract to sell real property may generally be enforced by specific performance.  See Rus-Ann Dev., Inc. v. ECGC, Inc., 222 S.W.3d 921, 927 (Tex. App.—Tyler 2007, no pet.); Scott v. Sebree, 986 S.W.2d 364, 369–70 (Tex. App.—Austin 1999, pet. denied).

          Here, the trial court ordered specific performance of the earnest money contract, which would result in the sale of the property to Pickard.  Pickard is asking for additional relief—the appointment of a management company to operate the property until its condition is improved.  In support of this relief, Pickard contends he is entitled to arrange for a “mortgage . . . in an amount and with terms [] near to what he had back in early 2003,” but, now, “the interest rate may be higher than it was in early 2003.”  Pickard also asserts that LJH has allowed the condition of the property to decline, which will contribute to his inability to gain favorable financing terms. Specifically, Pickard asserts that there is a large amount of maintenance that has been deferred during the pendency of this suit, as compared to the minor amount of deferred maintenance in December 2002.

          In appropriate cases, relief in the form of monetary damages is available in addition to the equitable relief of specific performance in a breach of contract suit.  See Paciwest, Inc., 266 S.W.3d at 575 (stating that breach of contract damages for increased interest rate on third party financing may be sought in addition to specific performance).  Obtaining a loan with a less favorable interest rate is measurable by a certain pecuniary standard.  See id.  In fact, Pickard sought damages for the change of interest rate from 2003 until trial, but the jury found no damages for the changed interest rate.  Pickard does not challenge the jury’s finding in this appeal.  Because there is an adequate remedy at law, this factor weighs against the additional relief Pickard seeks. See S. Plains Switching, Ltd., 255 S.W.3d at 703; Cytogenix, Inc., 213 S.W.3d at 488.

                   2.       Possibility of Present Performance

          A court should not enforce specific performance where the trial court’s order will require a party to perform a continuous series of acts into the future, over which the court exercises its supervision. Cytogenix, Inc., 213 S.W.3d at 487 (citing Tex. & Pac. Ry. Co. v. City of Marshall, 136 U.S. 393, 407, 10 S. Ct. 846, 850 (1890) and Canteen Corp., 773 S.W.2d at 401)).  “Instead, absent a significant public interest, parties to a private contract are left to their remedies at law.”  Id. at 488 (citing Canteen Corp., 773 S.W.2d at 401).

          Here, the trial court’s judgment orders present performance of the parties’ contract.  The additional relief Pickard seeks will require continued performance extending into the future.  It is likely that any disputes between Pickard and LJH or with the management company would require the parties to return to court for further supervision. Furthermore, the contract for sale of an apartment complex between two private parties does not implicate a public interest. Thus, this factor weighs against granting the additional relief Pickard seeks.  See id. at 487 (noting order contemplating “a continuous series of acts which extend through a long period of time and require constant supervision by the court” is not proper remedy for specific performance in breach of contract case).

                   3.       Precise Terms Capable of Enforcement

          Concerning this factor, it appears the earnest money contract is sufficiently definite to be capable of enforcement.  The trial court ordered LJH to perform under the terms of the contract.  Pickard, however, seeks a management company to take over the property.  The proposed terms of the management company’s responsibilities and obligations are not set forth in the parties’ agreement.  The earnest money contract is sufficiently precise to support an award of specific performance, but the additional relief proposed by Pickard is not.  This factor weighs against granting the relief Pickard is seeking.  See Cytogenix, Inc., 213 S.W.3d at 488.

                   4.       Relief Comports with Terms of Agreement      

          The additional relief Pickard seeks exceeds the scope of the original agreements.  The earnest money contract provides that Pickard could seek specific performance if LJH defaulted on the contract.  The trial court’s judgment orders LJH to perform under the terms of the earnest money contract. However, the terms of the judgment proposed by Pickard are not present in the agreement.  Pickard’s proposed relief does not address the terms of the parties’ earnest money contract.  Instead, Pickard’s relief is ultimately geared towards improving the terms of his third-party financing, a separate contract not at issue in this suit.  This final factor also weighs against granting the additional relief sought by Pickard, because the additional relief does not comport with the terms of the earnest money contract.  See Cytogenix, Inc., 213 S.W.3d at 488–89.

          We hold that the trial court did not abuse its discretion by ordering specific performance of the earnest money contract according to its terms, rather than adding additional terms that require continuing action into the future and that do not comport with the original agreement.  We overrule Pickard’s first and second issues as they relate to his request for the appointment of a management company and for a modification of the contract terms.

Deadlines Imposed by Final Judgment

          Within his second issue, Pickard asserts the trial court’s judgment is erroneous because it provides for certain deadlines of the specific performance of the earnest money contract to be performed within a set time from “the date this Final Judgment is signed.”  All of these deadlines have passed while Pickard pursued this appeal.   

          Pickard’s argument on this issue states, in its entirety, “Without knowing when the Final Judgment will be final and non appealable it is improvident to hire and pay a mortgage broker to get a loan when there is no certainty as to when a closing date will be able to be set.”  Texas Rule of Appellate Procedure 38.1(i) requires that an appellant’s brief “contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”  Tex. R. App. P. 38.1(i). “Rule 38 requires [a party] to provide us with such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue.”  Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).  “This is not done by merely uttering brief conclusory statements, unsupported by legal citations.”  Id.  “Issues on appeal are waived if an appellant fails to support his contention by citations to appropriate authority or cites only to a single non-controlling case.”  Abdelnour v. Mid Nat'l Holdings, Inc., 190 S.W.3d 237, 241 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177, 189 (Tex. App.—Houston [1st Dist.] 2005, no pet.).   Here, in the single sentence quoted above, Pickard does not provide citation to any authority and does not provide any discussion or argument concerning his contention.  Pickard has waived any error concerning the deadlines by failing to adequately brief the issue.  See Tesoro Petroleum Corp., 106 S.W.3d at 128. Furthermore, to the extent Pickard is requesting modification of the judgment to provide that the time periods established by the earnest money contract will begin once a management company has taken control of the property and confirmed the property has reached a certain level of net operating income for six consecutive months, we have already held that this is not an appropriate remedy to be granted as part of specific performance. We overrule that portion of Pickard’s second issue concerning the deadlines in the judgment.

LJH’s Cross-Appeal

          A.      Damages

          In its first issue, LJH contends that the trial court erred in granting both damages and the equitable relief of specific performance to Pickard.  We overrule this issue for two reasons.  First, LJH is mistaken about the law.  In an appropriate case, damages may be awarded in addition to specific performance.  See Paciwest, Inc., 266 S.W.3d at 575.   Second, LJH has waived this issue due to inadequate briefing.  LJH’s argument consists of a brief paragraph discussing the requirement of a party seeking specific performance to plead and prove it is ready, willing, and able to perform under the contract.  In the middle of this paragraph, the following sentence appears: “An award of money damages is inconsistent with an equitable relief of specific performance.”  This single sentence is the entirety of LJH’s argument concerning damages and specific performance.  LJH has waived any issue concerning the award of damages by failing to cite any authority or providing any discussion concerning this issue.  See Tesoro Petroleum Corp., 106 S.W.3d at 128; Tex. R. App. P. 38.1(i).  Accordingly, we overrule LJH’s first issue.

          B.      Ready, Willing, and Able to Perform

          In its second issue, LJH contends Pickard was not entitled to specific performance because he did not show that he tendered performance under the contract or was ready willing and able to perform.  LJH does not provide any appropriate standard of review. LJH cites to a single case to support its statement that specific performance is only available “when the buyer is ready willing and able to perform under the contract.”  LJH also states, “Plaintiff never tendered consideration, nor offered any testimony that consideration was tendered.”  LJH provides no citation to the record and no discussion or analysis of the facts of this case in the context of relevant authority.   Therefore, LJH has waived this issue.  See Tesoro Petroleum Corp., 106 S.W.3d at 128; Tex. R. App. P. 38.1(i).  We overrule LJH’s second issue.

Conclusion

          We affirm the judgment of the trial court.

                                                                   Elsa Alcala

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Alcala and Higley.