James and Patricia Chapman v. Doug and Eleanor Olbrich ( 2006 )

Motion for Rehearing Overruled and Supplemental Opinion filed November 16, 2006

Motion for Rehearing Overruled and Supplemental Opinion filed November 16, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00056-CV

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JAMES AND PATRICIA CHAPMAN, Appellants

V.

DOUG AND ELEANOR OLBRICH, Appellees

On Appeal from the 157th District Court

Harris County, Texas

Trial Court Cause No. 02-36479

S U P P L E M E N T A L   O P I N I O N

In their motion for rehearing, appellants James and Patricia Chapman assert a single groundCthat, in our opinion of June 29, 2006, this court erred by failing to address the argument that appellees Doug and Eleanor Olbrich forfeited their right to seek specific performance by allegedly repudiating the parties= contract when they tendered performance that did not conform to the contract.  The Chapmans assert that they raised this repudiation argument by their third and fourth issues and the argument thereunder.  These issues and argument, in the aggregate, consume fewer than three pages of the Chapmans= appellate

brief. After reviewing the Chapmans= entire brief, with particular attention to these pages, we conclude that the Chapmans did not assign error as to this repudiation argument.  Furthermore, the Chapmans waived this issue by failing to set forth some specific argument and analysis with supporting authorities and record citations. San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.CHouston [14 Dist.] 2005, no pet.) (holding that, even though courts interpret briefing requirements reasonably and liberally, parties asserting error on appeal still must put forth some specific argument and analysis citing the record and authorities in support of the parties= argument). 

The Chapmans= brief states that the Olbrichs not only failed to tender their own performance under the contract but also tendered a nonconforming performance.  However, in this part of their brief, the Chapmans assert that the trial court erred in denying their motions for directed verdict and for judgment notwithstanding the verdict and in awarding specific performance because the Olbrichs did not prove that they diligently and timely performed, or tendered performance of, all the Olbrichs= obligations under the contract.  While the Chapmans mentioned two different ways in which the Olbrichs allegedly violated this requirementC(1) not tendering performance under the contract and (2) tendering performance but not under the terms of the contractCthe Chapmans never asserted that the Olbrichs forfeited their right to seek specific performance by repudiating the parties= contract. Indeed, the Chapmans did not use the words Arepudiate@ or Arepudiation@ anywhere in their third or fourth issues or the argument thereunder, nor did they urge the repudiation argument they now assert on rehearing.  Moreover, the cases the Chapmans cite under these two issues do not address whether parties forfeit their right to seek specific performance by repudiating the parties= contract through a nonconforming tender of performance. 

Under these circumstances, we conclude the Chapmans did not present the argument in question on original submission; therefore, this court did not err in failing to address it.

Because the only ground the Chapmans assert on rehearing lacks merit, we overrule their motion for rehearing.

/s/      Kem Thompson Frost

Justice

Motion for Rehearing Overruled and Supplemental Opinion filed November 16, 2006.

Panel consists of Justices Hudson, Frost, and Seymore (Hudson, J., would grant rehearing).