Rob Jennings, III and El Veleno, Ltd. v. Susan Jennings, Tres Mujeres, Ltd., and Pamela J. Person ( 2021 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-19-00485-CV
Rob JENNINGS III and El Veleño, Ltd.,
Appellants
v.
Susan JENNINGS, Tres Mujeres, Ltd., and Pamela J. Person,
Appellees
From the 49th Judicial District Court, Zapata County, Texas
Trial Court No. 8,479
Honorable José A. López, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Rebeca C. Martinez, Chief Justice
Patricia O. Alvarez, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: February 3, 2021
AFFIRMED
In a Rule 11 Settlement Agreement (the Agreement), the parties and a limited partnership
agreed to dissolve the partnership and partition the surface ownership of the Mira Flores Ranch.
Appellants repudiated the Agreement, and Appellees filed a traditional motion for summary
judgment on their breach of contract action and sought specific performance of the Agreement.
The trial court granted Appellees’ traditional motion for summary judgment, ordered specific
performance, severed the order, and Appellants appealed. We affirm the trial court’s order.
04-19-00485-CV
BACKGROUND
A. The Mira Flores Ranch and the Formation of Jennings Properties, Ltd.
The Mira Flores Ranch is a family property consisting of approximately 13,692 acres
located in Zapata County, Texas. In 1966, the ranch was owned by Roy Jennings, his wife Pauline,
and their son Roy Jennings Jr. Roy owned 6,275.89 acres or a 45.83% interest; Roy Jr. owned
6,561.16 acres or a 47.92% interest; and Pauline owned 855.80 acres or a 6.25% interest. When
Roy died on March 10, 1966, he left his estate to Pauline, which gave her a 52.08% interest in the
ranch. In 1972, Pauline conveyed her interest equally to her three grandchildren, Rob Roy
Jennings III, Susan Jennings, and Pamela Jennings.
In 1993, after Roy Jr. and his wife formed Jennings Properties, Ltd., Roy Jr. conveyed his
interest of 6,561.16 acres in the ranch to that partnership. On September 24, 1993, Roy Jr. assigned
5,905.44 acres of his holdings as a limited partner to his three children as follows: (a) to Pamela,
875.258744 undivided acres, (b) to Susan, 875.258744 undivided acres, and (c) to Roy III,
4,154.526512 undivided acres.
As of 1998, the undivided ownership of the Mira Flores Ranch’s 13,692.85 acres was (a)
Jennings Properties, 6,561.16 undivided acres or a 47.92% interest in the ranch; (b) Roy III:
2,377.23 undivided acres or a 17.36% interest in the ranch; (c) Pamela: 2,377.23 undivided acres
or a 17.36% interest in the ranch; and (d) Susan: 2,377.23 undivided acres or a 17.36% interest in
the ranch. Roy Jr. died in 1999 and, in accordance with his will, all his interest in Jennings
Properties passed to Roy III. In 2001, Pamela conveyed all her undivided interest in the ranch to
Tres Mujeres, Ltd. In 2004, Evelyn Jennings, Roy III’s mother, died and, in accordance with her
will, all her interests in Jennings Properties passed to Roy III.
On June 15, 2007, the partnership name was changed from Jennings Properties, Ltd. to Roy
Jennings Properties, Ltd. On September 10, 2010, Roy III conveyed 7,116.31 of his interest in the
-2-
04-19-00485-CV
Mira Flores Ranch and in Roy Jennings Properties to El Veleño, Ltd., a partnership he formed with
his wife, Lucila Jennings. He kept an interest of 65.55 acres in Roy Jennings Properties.
B. Procedural Background
On November 25, 2013, Susan, Pamela, and Tres Mujeres (the Plaintiffs) sued Roy III to
partition the Mira Flores Ranch. Later, El Veleño was added as a defendant. On July 2, 2015, the
parties executed, and the trial court approved, a Stipulation of Facts which stipulated the
percentage surface ownership interests in the Mira Flores Ranch that Roy III, El Veleño, Tres
Mujeres, and Susan each owned.
On November 5, 2015, plaintiffs amended their petition to include a cause of action for
involuntary dissolution of Jennings Properties and a declaration that the partnership terminated.
The parties subsequently mediated the case and agreed to settle their disputes. On June 29, 2017,
the parties and Roy Jennings Properties executed the Agreement that provided the following
conditions:
1) The Parties shall as soon as possible and shall within forty-five (45) days
from date hereof execute any and all documents necessary to cause the
dissolution of Roy Jennings Properties, Ltd. (formerly named Jennings
Properties, Ltd.), which currently owns 6,555.66 acres out of the gross acres
of the Mira Flores Ranch, currently estimated to be 13,681.40 1 acres (re-
surveyed to be 13,692.85 acres).
The dissolution legal work shall be done by George Juárez from Laredo,
Texas, and he will be paid proportionately by the Parties based on their
interest set out in Paragraph 4 herein.
2) The current percentage ownership of the surface of the Mira Flores Ranch
acreage is currently as follows:
Roy Jennings Properties, Ltd. 47.91667%
Tres Mujeres, Ltd. 17.36111%
El Veleño, Ltd. 17.36111%
Susan Jennings 17.36111%
3) The Parties as part of the dissolution of Roy Jennings Properties, Ltd., shall
execute conveyances to the surface estate consisting of approximately
1
Due to a re-survey, the acreage changed from 13,681 to 13,692 acres.
-3-
04-19-00485-CV
6,555.67 undivided acres of the Mira Flores Ranch located in Zapata
County, Texas as follows:
874.53 undivided acres to Susan Jennings
874.53 undivided acres to Tres Mujeres, Ltd.
65.55 undivided acres to Rob R. Jennings, III
4,741.06 undivided acres to El Veleño
4) Subsequent to the aforementioned conveyances, the surface title to the Mira
Flores Ranch will be held as follows:
Susan Jennings (2,375.24 + 74.53) 3,249.77
Tres Mujeres, Ltd. 3,249.77
Rob R. Jennings, III 65.55
El Veleño, Ltd. (by conveyance of
Rob R. Jennings, III, et ux of September 10, 2010) 7,116.31
Per the Agreement, the parties agreed to execute all documents necessary to cause the
dissolution of Roy Jennings Properties by August 13, 2017. In July of 2017, the parties hired
attorney George Juárez to prepare the dissolution documents. On August 8, 2017, Juárez, via e-
mail, forwarded to the parties’ attorneys a draft of two dissolution documents, one entitled
“Partnership and Election of General Partner” and the other entitled “Termination of Limited
Partnership Agreement.” In that same e-mail, Juárez asked the parties’ attorneys to have their
clients execute both documents. None of the parties executed either document at that time.
After conferring and meeting with the parties’ attorneys and revising the documents, on
August 30, 2017, Juárez, via e-mail, forwarded the dissolution documents for final approval by the
parties. It is apparent from the record that an agreement was not reached on the language of the
revised documents because, on October 4, 2017, Juárez met with the parties’ attorneys to review,
discuss, and revise the dissolution documents. On October 5, 2017, Juárez sent an e-mail to the
parties’ attorneys confirming, among other things, that each agreed the dissolution documents
would be executed by the parties on or before October 13, 2017.
On October 12, 2017, Susan and Tres Mujeres executed the revised dissolution documents,
but Roy III did not. On November 27, 2017, Appellants’ attorney, Donato Ramos, filed a motion
-4-
04-19-00485-CV
to withdraw, which was granted. On December 4, 2017, Rob III and El Veleño filed a revocation
of the Agreement.
On March 2, 2018, Susan, Pamela, and Tres Mujeres amended their petition to include a
cause of action for breach of the Agreement. After discovery, Susan, Pamela, and Tres Mujeres
filed a traditional motion for summary judgment; Roy III and El Veleño filed no-evidence and
traditional motions for summary judgment.
On December 18, 2018, attorney Ramos executed an affidavit attesting that on October 4,
2017, he met with Juárez and the plaintiffs’ attorneys but that his “clients did not authorize me to
extend the forty-five(45) [sic] days deadline set forth in the June 29, 2017 Rule 11 Agreement . . .
nor did my clients authorize me to agree to any of the matters set forth in Mr. Juárez’ e-mail of
October 5,2017 [sic].”
On January 23, 2019, the trial court granted Plaintiffs’ motion for summary judgment 2 and
ordered Roy III and El Veleño to execute the dissolution documents drafted by Juárez and the
distribution deed. The summary judgment order was severed, and Roy III and El Veleño appeal.
ISSUES ON APPEAL
Appellants raise three issues that deal only with that portion of the Agreement that
provides,
1) The Parties shall as soon as possible and shall within forty-five (45) days
from date hereof execute any and all documents necessary to cause the
dissolution of Roy Jennings Properties, Ltd. (formerly named Jennings
Properties, Ltd.), which currently owns 6,555.66 acres out of the gross acres
of the Mira Flores Ranch, currently estimated to be 13,681.40 acres (re-
surveyed to be 13,692.85 acres).
2
In its January 23, 2019 order, the trial court states it considered “Plaintiffs’ [Traditional] Motion for Summary
Judgment, the exhibits attached thereto, [and] the respective oppositions filed thereto.” The trial court’s order does
not state it considered Appellants’ traditional or no-evidence motions for summary judgment, and the order does not
expressly dispose of either of Appellants’ motions. We conclude the trial court reviewed the evidence in Appellants’
responses but did not rule on the merits of Appellants’ traditional or no-evidence motions for summary judgment.
-5-
04-19-00485-CV
The dissolution legal work shall be done by George Juárez from Laredo,
Texas, and he will be paid proportionately by the Parties based on their
interest set out in Paragraph 4 herein.
Appellants contend that the trial court erred in granting Appellees’ traditional motion for
summary judgment because (1) Appellees failed to plead and prove they were ready, willing, and
able to timely perform their obligations under the Agreement as required under DiGiuseppe v.
Lawler; 3 (2) the Agreement is not an enforceable contract; and, (3) under Maroy International,
Inc. v. Cantu, 4 the timing of performance under the Agreement was a disputed issue for the trier
of fact.
For clarity, we reorganize Appellants’ issues as follows: (1) Is the Agreement an
enforceable contract? (2) Was the timing of performance a disputed issue for the trier of fact under
Maroy International v. Cantu? and (3) Did Appellees fail to plead and prove they were ready,
willing, and able to timely perform their obligations under the Agreement under DiGiuseppe v.
Lawler?
STANDARD OF REVIEW
“We review grants of summary judgment de novo.” First United Pentecostal Church of
Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 2017) (citing Cantey Hanger, LLP v. Byrd, 467
S.W.3d 477, 481 (Tex. 2015)). In our review, “we take as true all evidence favorable to the
nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s
favor.” Cantey Hanger, 467 S.W.3d at 481 (quoting Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005)).
“A party moving for traditional summary judgment meets its burden by proving that there
is no genuine issue of material fact and it is entitled to judgment as a matter of law.” Parker, 514
3
269 S.W.3d 588, 593 (Tex. 2008).
4
No. 04-12-00193-CV, 2013 WL 1149066, at *2 (Tex. App.—San Antonio Mar. 20, 2013, pet. denied) (mem. op.).
-6-
04-19-00485-CV
S.W.3d at 220 (citing TEX. R. CIV. P. 166a(c)); accord Cmty. Health Sys. Prof’l Servs. Corp. v.
Hansen, 525 S.W.3d 671, 681 (Tex. 2017). “An issue is conclusively established ‘if reasonable
minds could not differ about the conclusion to be drawn from the facts in the record.’” Hansen,
525 S.W.3d at 681 (quoting Childs v. Haussecker, 974 S.W.2d 31, 44 (Tex. 1998)).
ENFORCEABLE CONTRACT
A. Arguments of the Parties
Appellants argue that the trial court erred in ordering specific performance of the
Agreement because it is not an enforceable contract. They contend the language “any and all
documents necessary to cause the dissolution of [the partnership]” makes the Agreement void for
two reasons. First, they claim that under Brillhart v. Beever, the language is evidence that the
parties did not intend the Agreement to be binding and, instead, intended it to be the subject of
future negotiations. See Brillhart v. Beever, 198 S.W. 973 (Tex. App.—Amarillo 1917, no writ).
Second, they argue that the language, being an essential term of the Agreement, is vague and not
definite because it is subject to future negotiations.
Appellees counter that the essence of the Agreement was the partition of the surface
acreage of the ranch in accordance with the Stipulation of Facts and not the perfunctory execution
of the partnership dissolution documents, which is not a material term to the agreement. For this
reason, they argue, the Agreement is an enforceable contract.
B. Enforceable Agreement
A settlement “agreement is enforceable in the same manner as any other written contract.”
TEX. CIV. PRAC. & REM. CODE ANN. § 154.071(a); accord Hardman v. Dault, 2 S.W.3d 378, 380
(Tex. App.—San Antonio 1999, no pet.). A Rule 11 settlement agreement must be “complete
within itself in every material detail, and [contain] all of the essential elements of the agreement.”
Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995) (citing Cohen v. McCutchin, 565 S.W.2d
-7-
04-19-00485-CV
230, 232 (Tex. 1978)). A settlement agreement containing all essential or material terms 5 is
enforceable as a matter of law. MKM Eng’rs, Inc. v. Guzder, 476 S.W.3d 770, 778 (Tex. App.—
Houston [14th Dist.] 2015, no pet.) (citing McCalla v. Baker’s Campgrounds, Inc., 416 S.W.3d
416, 418 (Tex. 2013)).
C. Identifying Essential Terms
“The question of whether a term is material is a legal one, and we review it de novo, taking
each contract on a case-by-case basis.” Breof BNK Tex., L.P. v. D.H. Hill Advisors, Inc., 370
S.W.3d 58, 64 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing Parker Drilling Co. v.
Romfor Supply Co., 316 S.W.3d 68, 74 (Tex. App.—Houston [14th Dist.] 2010, pet. denied)).
Generally, whether a contract term is essential is also determined in light of the circumstances of
the contract. Amedisys v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 514 (Tex. 2014).
Essential terms are those terms that the parties “would reasonably regard as vitally
important elements of their bargain.” Potcinske v. McDonald Prop. Invs., Ltd., 245 S.W.3d 526,
531 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Kanan v. Plantation Homeowner’s Ass’n Inc.,
407 S.W.3d 320, 330 (Tex. App.—Corpus Christi 2013, no pet.). An essential element of an
enforceable settlement agreement is the intent of the parties to be bound by that agreement.
Hardman, 2 S.W.3d at 380 (citing Foreca, S.A. v. GRD Dev. Co., 758 S.W.2d 744, 746 (Tex.
1988)).
5
Courts use the words “essential” and “material” interchangeably to denote the same meaning. See, e.g., Barrow-
Shaver Res. Co. v. Carrizo Oil & Gas, Inc., 590 S.W.3d 471, 481 (Tex. 2019); T.O. Stanley Boot Co., Inc. v. Bank of
El Paso, 847 S.W.2d 218, 221 (Tex. 1992); Thomas v. Miller, 500 S.W.3d 601, 608 (Tex. App.—Texarkana 2016, no
pet.); Marx v. FDP, LP, 474 S.W.3d 368, 376 (Tex. App.—San Antonio 2015, pet. denied); Forged Components, Inc.
v. Guzman, 409 S.W.3d 91, 100 (Tex. App.—Houston [1st Dist.] 2013, no pet.); 2001 Trinity Fund, LLC v. Carrizo
Oil & Gas, Inc., 393 S.W.3d 442, 466 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (Jamison, J., concurring);
Martin v. Martin, 326 S.W.3d 741, 753 (Tex. App.—Texarkana 2010, pet. denied); Thedford Crossing, L.P. v. Tyler
Rose Nursery, Inc., 306 S.W.3d 860, 868 (Tex. App.—Tyler 2010, pet. denied); Beaurline v. Smith, 426 S.W.2d 295,
296 (Tex. App.—Corpus Christi 1968, writ ref’d n.r.e.); Hubbard City Cotton Oil & Gin Co. v. Nickels, 133 S.W.
489, 490–91 (Tex. App.—Dallas 1910, no writ).
-8-
04-19-00485-CV
D. Clarity of Essential Terms
Essential terms of a contract must be definite, certain, and clear, and, if they are not, the
contract is unenforceable. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.
1992); Marx v. FDP, LP, 474 S.W.3d 368, 376 (Tex. App.—San Antonio 2015, pet. denied). The
rules regarding definiteness of essential terms in a contract are based on the concept that a party
cannot accept an offer to form a contract unless the terms of that contract are reasonably certain.
Oakrock Expl. Co. v. Killam, 87 S.W.3d 685, 690 (Tex. App.—San Antonio 2002, pet. denied)
(citing Tex. Oil Co. v. Tenneco Inc., 917 S.W.2d 826, 830 (Tex. App.—Houston [14th Dist.] 1994),
rev’d on other grounds sub nom. Morgan Stanley & Co., Inc. v. Tex. Oil Co., 958 S.W.2d 178(Tex. 1997)). A court may uphold an agreement by supplying missing terms but may not create a
contract where none exits and, generally, may not interpolate or eliminate essential terms. Id.When the intent is clear and unambiguous on the face of the agreement, it may be determined as a
matter of law. Cf. Padilla, 907 S.W.2d at 461–62.
E. Open or Missing Terms
Courts often enforce settlement agreements that contemplate additional documentation or
leave other terms open to be agreed upon later. Oakrock Expl., 87 S.W.3d at 690; see Scott v. Ingle
Bros. Pac., Inc., 489 S.W.2d 554, 555 (Tex. 1972); MKM Eng’rs, 476 S.W.3d at 778; Eastman
Gas Co. v. Goodrich Petrol. Co., 456 S.W.3d 319, 326 (Tex. App.—Texarkana 2015, pet. denied);
Kanan, 407 S.W.3d at 330; Fiduciary Fin. Servs. of Sw., Inc. v. Corilant Fin., L.P., 376 S.W.3d
253, 256 (Tex. App.—Dallas 2012, pet. denied); Gen. Metal Fabricating Corp. v. Stergiou, 438
S.W.3d 737, 748–49 (Tex. App.—Houston [1st Dist.] 2014, no pet.); E.P. Towne Ctr. Partners,
L.P. v. Chopsticks, Inc., 242 S.W.3d 117, 122 (Tex. App.—El Paso 2007, no pet.); Ski River Dev.,
Inc. v. McCalla, 167 S.W.3d 121, 133 (Tex. App.—Waco 2005, pet denied); Mabon Ltd. v. Afri–
Carib Enters., Inc., 29 S.W.3d 291, 300 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
-9-
04-19-00485-CV
The critical issue for determining enforceability when the parties agree that some
terms will remain open is whether the parties intended for their agreement to be a
present, binding agreement in the absence of an agreement on the remaining terms
or whether they intended their agreement to have no legal significance until
agreement on the remaining terms is reached.
MKM Eng’rs, 476 S.W.3d at 779. If the parties do not intend to be bound until other terms are
negotiated, then “there is no binding contract, but only an agreement to agree.” Stergiou, 438
S.W.3d at 748 (quoting Mabon, 29 S.W.3d at 300). Although intent to be bound is generally a
question of fact, it may be determined as a matter of law. Foreca, 758 S.W.2d at 746; Hardman,
2 S.W.3d at 380.
F. Provision at Issue
Appellants argue that the following language makes the Agreement merely an agreement
to agree:
1) The Parties shall as soon as possible and shall within forty-five (45) days
from date hereof execute any and all documents necessary to cause the
dissolution of Roy Jennings Properties, Ltd. (formerly named Jennings
Properties, Ltd.), which currently owns 6,555.66 acres out of the gross acres
of the Mira Flores Ranch, currently estimated to be 13,681.40 acres (re-
surveyed to be 13,692.85 acres).
The dissolution legal work shall be done by George Juárez from Laredo,
Texas, and he will be paid proportionately by the Parties based on their
interest set out in Paragraph 4 herein.
We disagree. Under this provision, the parties were to dissolve Roy Jennings Properties
and have Juárez do the legal work to dissolve it. The plain language is clear and unambiguous, cf.
Padilla, 907 S.W.2d at 461–62, and Appellants do not argue otherwise. Rather, Appellants rely
on Brillhart v. Beever, 198 S.W. 973 (Tex. App.—Amarillo 1917, no writ), for their argument that
so long as the dissolution documents are incomplete, the Agreement is not an enforceable contract.
They argue that the words “any and all documents necessary to cause the dissolution” demonstrate
that the parties did not intend the Agreement to be their final agreement.
- 10 -
04-19-00485-CV
G. Distinguishing Brillhart
The issue in Brillhart was whether the following letter constituted an enforceable contract
to sell a piece of land,
Mr. G. C. Brillhart, Gray, Oklahoma—Dear Sir: Received your letter with check
for seventy-five dollars a few days ago, in regard to offer on my land. I cannot
accept your price, the amount cash you offer is hardly enough to justify me in
selling, and the 6% interest on deferred payments is low; however I will make
proposal on your terms, you assume the seven hundred dollars $700.00 due the
state on this land at 3% interest payable annually, and give me one thousand dollars
$1,000.00 cash, and I will take your notes for four thousand $4,000.00, one
thousand payable annually, with interest at 6% on deferred payments, all interest
payable annually; will go into further agreement with you if this interest you let me
know, this is the best I can do on a thousand dollars cash.
Id. at 974 (emphasis added). The court acknowledged that the price for the land and the terms of
payment “were an important feature of the contract.” Id. at 975. The court concluded that because
the letter ended with “will go into further agreement with you if this interest you let me know,”
the letter did not constitute a concluded agreement. Id. Instead, the court found the letter to be an
offer to open further negotiations and not one “which can be converted into a contract by
acceptance.” Id. The court stated,
An agreement to be finally settled, must comprise all the terms which the parties
intended to introduce into the agreement. . . . “The circumstance that the parties do
intend a subsequent agreement to be made is strong evidence to show that they did
not intend the previous negotiations to amount to an agreement.”
Id. (quoting Ridgeway v. Wharton, 6 H. L. Cas. 268 (Lord Cranworth)). We agree with Appellants
that, as in Brillhart, “when an agreement leaves material matters open for future adjustment and
agreement that never occur, it is not binding upon the parties and merely constitutes an agreement
to agree.” Fischer v. CTMI, L.L.C., 479 S.W.3d 231, 237 (Tex. 2016) (emphasis added) (quoting
Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex. 2000)); Fiduciary
Fin. Servs., 376 S.W.3d at 256. We do not agree, however, that the language “any and all
documents necessary to cause the dissolution” is a material or essential term of the Agreement.
- 11 -
04-19-00485-CV
H. No Subsequent Agreement Condition
Unlike the language in Brillhart, the Agreement here does not contain language that the
Agreement was merely intended as an offer or a preliminary and non-binding agreement. See
Brillhart, 198 S.W. at 975–76; see also MKM Eng’rs, 476 S.W.3d at 779 (citing John Wood Grp.
USA, Inc. v. ICO Inc., 26 S.W.3d 12, 19 (Tex. App.—Houston [1st Dist.] 2000, pet. denied)).
Nowhere in the Agreement is there language that indicates that the parties did not intend to be
bound until they negotiated or executed the dissolution documents. See Stergiou, 438 S.W.3d at
748. The words “as soon as possible” do not indicate the agreement to dissolve the partnership
was subject to the parties’ subsequent agreement on the details of the dissolution documents or
that their execution was a condition precedent to the Agreement. See Hardman, 2 S.W.3d at 380.
As in Hardman, the language “any and all necessary documents” simply refers to the documents
necessary to carry out the agreement to dissolve the partnership. Id. For these reasons, we
conclude that, as a matter of law, the language “any and all necessary documents to cause the
dissolution” is not an essential term in the Agreement.
I. Missing Party Assertion
Appellants also assert that because Roy Jennings Properties was not a party to the lawsuit,
it was the parties’ intent to leave the Agreement open for further negotiations. We construe
Appellants’ brief reasonably, yet liberally. See First United Pentecostal Church of Beaumont v.
Parker, 514 S.W.3d 214, 222 (Tex. 2017) (requiring courts of appeals “to construe briefing
‘reasonably, yet liberally, so that the right to appellate review is not lost by waiver.’” (quoting
Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008))).
On this putative point, Appellants’ brief does not “contain a clear and concise argument
for the contentions made, with appropriate citations to authorities and to the record.” See TEX. R.
APP. P. 38.1(i); ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010).
- 12 -
04-19-00485-CV
Appellants asserted the Agreement was “open for future negotiations especially because Roy
Jennings Properties, Ltd, is not even a party to the lawsuit,” but they provided no authorities to
support their assertion. Construing their brief reasonably yet liberally, we necessarily conclude
Appellants failed to present a legal argument for our review. See Parker, 514 S.W.3d at 222
(quoting Perry, 272 S.W.3d at 587).
J. Indefinite or Vague Language
Appellants also argue that the term “any and all documents” is indefinite or vague. Having
concluded that “any and all documents” is not a material term to the Agreement, we need not
consider Appellants’ argument that that language is indefinite or vague. See T.O. Stanley Boot
Co., 847 S.W.2d at 221 (noting material terms must be definite, certain, and clear).
For the above reasons, we conclude that, as a matter of law, the Agreement is an
enforceable contract. We overrule Appellants’ second issue.
We next address the issue of timing of performance under the Agreement.
TIMING OF PERFORMANCE AS FACT ISSUE
A. Arguments of the Parties
Appellants contend that a material term of the Agreement required Appellees to execute
the dissolution documents within forty-five days of when the Agreement was signed, which they
did not. Therefore, they argue, the Agreement was void. In the alternative, Appellants rely on this
court’s opinion in Maroy Int’l, Inc. v. Cantu, No. 04-12-00193-CV, 2013 WL 1149066 (Tex.
App.—San Antonio Mar. 20, 2013, pet. denied) (mem. op.) for the proposition that if the timing
is not a material term of the Agreement, then the issue of time is a disputed issue for the trier of
fact. Accordingly, they argue, summary judgment should not have been granted.
Appellees contend that the language “as soon as possible . . . within forty-five (45) days”
is not a material term to the Agreement. In the alternative, they contend that even if the language
- 13 -
04-19-00485-CV
was material, Appellants waived the forty-five-day deadline when their attorney engaged in a
subsequent meeting with all counsel to discuss the dissolution drafts prepared by Juárez.
B. Applicable Law
In Maroy International, we joined other courts in recognizing that a date of performance
in a contract does not in itself mean that the parties intended timely performance to be of the
essence. Maroy Int’l, 2013 WL 1149066, at *2 (citing Breof BNK Tex., L.P., 370 S.W.3d at 64;
Municipal-Admin. Servs., Inc. v. City of Beaumont, 969 S.W.2d 31, 36 (Tex. App.—Texarkana
1998, no pet.); Shaw v. Kennedy, Ltd., 879 S.W.2d 240, 246 (Tex. App.—Amarillo 1994, no writ)).
“For timely performance to be a material term of [a] contract, the contract must expressly make
time of the essence or there must be something in the nature or purpose of the contract and the
circumstances surrounding it making it apparent that the parties intended that time be of the
essence.” Maroy, Int’l, 2013 WL 1149066, at *2 (alteration in original) (quoting Deep Mines, Inc.
v. McAfee, Inc., 246 S.W.3d 842, 846 (Tex. App.—Dallas 2008, no pet.)) (citing Breof BNK Tex.,
L.P., 370 S.W.3d at 64); accord In re Caballero, 441 S.W.3d 562, 574 (Tex. App.—El Paso 2014,
no pet.). If a contract expressly makes “time of the essence,” the issue is a fact question. Maroy
Int’l, 2013 WL 1149066 at *2 (citing Breof BNK Tex., L.P., 370 S.W.3d at 64).
C. Deadline is not a Material Term
The Agreement provision at issue calls for the execution of the dissolution documents “as
soon as possible” and “within forty-five (45) days from the date [of the Agreement].” Because the
Agreement was executed by all parties on June 23, 2017, the forty-five-day period expired on
August 13, 2017. The Agreement, however, is devoid of language that indicates that the parties
intended the execution of the dissolution documents to be of the essence or that the Agreement
was subject to the dissolution documents being executed by August 13, 2017. Further, there was
no summary judgment evidence to show that the parties intended for time to be of the essence. To
- 14 -
04-19-00485-CV
the contrary, the summary judgment evidence shows that after the initial draft of the dissolution
documents was tendered to the parties’ attorneys by Juárez on August 8, 2017, the parties and
Juárez continued up to October 4, 2017, to review relevant partnership documents, discuss the
drafts prepared by Juárez, and address matters concerning the partnership’s projected expenses for
its dissolution.
Taking Appellants’ summary judgment evidence as true, we nevertheless conclude the
parties did not intend the forty-five-day deadline to be of the essence to the Agreement. See Cantey
Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015).
D. Deadline as Fact Issue
On the other hand, we agree with Appellants that the issue—of whether the Agreement
required Appellees to execute the dissolution documents within forty-five-days—became a fact
question that precluded the trial court from granting Appellees’ motion for summary judgment.
See Cantu, 2013 WL 1149066 at *2; Breof BNK Tex., L.P., 370 S.W.3d at 64.
But our analysis does not end there. Appellees argue that Appellants waived any complaint
regarding the forty-five-day requirement, and we agree.
“[A] stipulated time limit may be extended either by agreement or by waiver.” Smith v.
Hues, 540 S.W.2d 485, 488 (Tex. App.—Houston [14th Dist.] 1976, writ ref’d n.r.e.) (citing
Puckett v. Hoover, 202 S.W.2d 209 (Tex. 1947); Langley v. Norris, 173 S.W.2d 454 (Tex. 1943);
Laredo Hides Co. v. H. & H. Meat Prods. Co., 513 S.W.2d 210 (Tex. App.—Corpus Christi 1974,
writ ref’d n.r.e.)); see also Maroy Int’l, 2013 WL 1149066, at *2. If by waiver, “[s]uch a waiver
. . . ‘may be shown . . . from the circumstances or course of dealing.’” Smith, 540 S.W.2d at 488
(quoting Puckett, 202 S.W.2d at 212).
It is undisputed that Appellants did not execute the dissolution documents by the August
13, 2017 deadline. It is also undisputed that on or after August 8, 2017, the day Juárez tendered
- 15 -
04-19-00485-CV
his first draft of the dissolution documents to the parties’ attorneys, and up to October 4, 2017,
Appellants’ former attorney, Donato Ramos, received e-mails from Juárez containing drafts of the
dissolution documents, revisions to the documents, and a memo from Juárez concerning the
partnership’s bank statements, and Appellants engaged in conferences with Appellees’ attorneys
and Juárez to discuss drafts of the dissolution documents. It is likewise undisputed that Appellants
did not revoke the Agreement until December 4, 2017.
Appellants assert their former attorney’s affidavit, submitted as summary judgment
evidence, at least raises a fact issue on waiver. We take the affidavit statements as true, see Cantey
Hanger, 467 S.W.3d at 481, but they rebut only the attorney’s authority to waive the deadline.
The statements do not rebut the other undisputed evidence of Appellants’ actions demonstrating
waiver.
Based on the undisputed evidence, we conclude Appellants waived the Agreement’s
deadline to execute the dissolution documents.
We overrule Appellants’ third issue and turn to Appellants’ last remaining issue.
PLEADING AND PROVING ENTITLEMENT TO SPECIFIC PERFORMANCE
A. Arguments of the Parties
Appellants next argue Appellees were not entitled to specific performance because they
failed to plead and prove they were ready, willing, and able to perform their obligations under the
Agreement as required under DiGiuseppe v. Lawler, 269 S.W.3d 588, 593 (Tex. 2008).
Appellees argue that, although they pled that all conditions precedent to their suit for
specific performance were met, because Appellants repudiated the Agreement, they were excused
from tendering performance before filing their suit for specific performance.
- 16 -
04-19-00485-CV
B. Applicable Law
Specific performance is an equitable remedy governed by equity principles and may be
granted upon proof of breach of contract. See Kress v. Soules, 261 S.W.2d 703, 704 (Tex. 1953);
Levetz v. Sutton, 404 S.W.3d 798, 805 (Tex. App.—Dallas 2013, pet. denied); Living Christ
Church, Inc. v. Jones, 734 S.W.2d 417, 419 (Tex. App.—Dallas 1987, writ denied).
Specific performance “is not a remedy which exists as a matter of right.” Kress, 261
S.W.2d at 704; see also 14 RICHARD R. POWELL, POWELL ON REAL PROPERTY § 81.04[1][c]
(Michael Allan Wolf ed., 2000) (observing that specific performance is not a matter of right even
to enforce terms of a contract but is “a matter of grace” in the discretion of the court). Specific
performance “rests in the sound discretion of the trial court, and its action will not be disturbed
unless an abuse of discretion is shown.” Walzem Dev. Co. v. Gerfers, 487 S.W.2d 219, 222 (Tex.
App.—San Antonio 1972, writ ref’d n.r.e.); accord Fabra v. Fabra, 221 S.W. 1008, 1009–10 (Tex.
App.—San Antonio 1920, writ ref’d).
“[T]o be entitled to specific enforcement of a contract, a party must show that the contract
in question is valid and enforceable.” Nguyen v. Woodley, 273 S.W.3d 891, 898 (Tex. App.—
Houston [14th Dist.] 2008, no pet.); accord Antwine v. Reed, 199 S.W.2d 482, 485 (Tex. 1947);
Abraham Inv. Co. v. Payne Ranch, Inc., 968 S.W.2d 518, 527 (Tex. App.—Amarillo 1998, pet.
denied). “An essential element in obtaining the equitable remedy of specific performance is that
the party seeking such relief must plead and prove he was ready, willing, and able to timely
perform his obligations under the contract.” DiGiuseppe, 269 S.W.3d at 593.
A showing that the party seeking specific performance substantially performed in
compliance with the contract and is able to continue performing its part of the agreement meets
the “ready, willing, and able” requirements. Id. at 594; see Glass v. Anderson, 596 S.W.2d 507,
513 (Tex. 1980). If a defendant repudiates a contract, a plaintiff may be excused from tendering
- 17 -
04-19-00485-CV
performance before filing suit; but “a plaintiff is still obligated to plead and prove his readiness,
willingness, and ability to perform at relevant times before specific performance may be awarded.”
DiGiuseppe, 269 S.W.3d at 594–95.
C. Pleading Substantial Performance
As noted throughout this opinion, Appellants challenge Appellees’ performance under
paragraph (1) of the Agreement. In this issue, Appellants argue that because Appellees did not
plead and prove they were ready, willing, and able to execute the dissolution documents by the
August 13, 2017 deadline, Appellees were not entitled to specific performance. Having
determined that Appellants waived any complaint on the deadline to execute the dissolution
documents, the only remaining issue is whether Appellees met the DiGiuseppe requirements to
plead and prove they were ready, willing, and able to execute the dissolution documents. See id.
at 593.
In their live pleading, Appellees did not expressly state they were “ready, willing, and able
to perform.” Instead, Appellees assert throughout their pleading that they (1) executed and
delivered the dissolution documents, (2) substantially complied and performed pursuant to the
Agreement, and (3) complied with conditions precedent to the Agreement. We conclude that
Appellees’ assertions meet the DiGiuseppe pleading requirements. See id. at 594.
D. Proving Substantial Performance
Our next inquiry is whether Appellees proved they substantially performed under the
Agreement. The uncontroverted evidence shows that (1) all parties hired Juárez to prepare the
legal documents for the dissolution, (2) the dissolution documents were executed by the Appellees
and, (3) pursuant to the Agreement, Appellees paid Juárez their portion of his fee. There was
nothing more to do on their part with respect to the dissolution. We therefore conclude that
- 18 -
04-19-00485-CV
Appellees fully performed their obligations under part (1) of the Agreement and, accordingly, met
their burden to prove substantial compliance. See id.
For the reasons above, we conclude the trial court did not abuse its discretion when it
granted specific performance of the Agreement.
E. Appellants’ Reply Brief
In their reply brief, Appellants deny Appellees’ contention that Appellants failed to
preserve any argument that the Agreement was unenforceable because Roy Jennings Properties
was not a party to the lawsuit. In that reply, Appellants argue that they preserved the issue for
appeal in their cross-motion for summary judgment, which alleged the reasons why Roy Jennings
Properties could not be dissolved and why the trial court erred in granting Appellees’ summary
judgment. They further reply that, under the various provisions of the partnership agreement,
Susan and Tres Mujeres, as limited partners, did not have the right to terminate the partnership
agreement, liquidate the partnership, or bring a partition suit to partition the partnership’s property.
Finally, they assert that when Roy III’s parents died, through their will, Roy III became Jennings
Properties’ general partner.
“[An] appellant may file a reply brief addressing any matter in the appellee’s brief.” See
TEX. R. APP. P. 38.3; Gamboa v. Gamboa, 383 S.W.3d 263, 274 (Tex. App.—San Antonio 2012,
no pet.). But “[t]he Texas Rules of Appellate Procedure do not allow an appellant to include in a
reply brief a new issue in response to some matter pointed out in the appellee’s briefs but not raised
by the appellant’s original brief.” Dallas Cty. v. Gonzales, 183 S.W.3d 94, 104 (Tex. App.—
Dallas 2006, pet. denied); accord In re Commitment of Gipson, 580 S.W.3d 476, 488 n.6 (Tex.
App.—Austin 2019, no pet.); Howell v. Tex. Workers’ Comp. Comm’n, 143 S.W.3d 416, 439 (Tex.
App.—Austin 2004, pet. denied); see TEX. R. APP. P. 38.3; Fox v. City of El Paso, 292 S.W.3d
- 19 -
04-19-00485-CV
247, 249 (Tex. App.—El Paso 2009, pet. denied) (a reply brief may not be utilized to present issues
to the court that were not presented in the original brief).
To the extent Appellants’ contention (that, under the partnership agreement, Susan and
Tres Mujeres, as limited partners, do not have the right to terminate the partnership, liquidate it,
or bring a partition suit) is a new issue, Appellants cannot raise it for the first time in their reply
brief. See Gonzalez, 183 S.W.3d at 104.
CONCLUSION
We affirm the trial court’s order granting Appellees traditional summary judgment and
ordering specific performance of the Rule 11 settlement agreement.
Patricia O. Alvarez, Justice
- 20 -