Unreported / Non-Citable
Background
Angela Ortiz contracted to buy a home from Dave Chapman Enterprises, LLC for $365,000, with closing scheduled for July 5, 2023. An amendment required the seller to install Copalum connectors on aluminum wiring before closing, with all electrical work performed by a licensed master electrician whom Ortiz approved.
The parties struggled to locate a contractor who both installed Copalum and would have a master electrician perform all the work. Ortiz rejected contractors proposed by the seller, and the parties did not agree on a further amendment. After the seller announced that it would not close, Ortiz sued the company and its owner, David W. Chapman, asserting several claims and seeking specific performance or damages for breach of contract. Following a bench trial, the trial court entered a take-nothing judgment and concluded that Ortiz had failed to prove her claims.
The Court’s Holding
The Second Court of Appeals affirmed because Ortiz failed to prove an essential element of her breach-of-contract claim: that she performed or tendered performance as required. Even assuming that the seller repudiated the contract and thereby excused an actual pre-suit tender, Ortiz still had to prove that she was ready, willing, and able to perform her payment obligations at all relevant times.
The admitted evidence showed, at most, financing of $292,000 toward the $365,000 purchase price. Ortiz presented no evidence showing that she could fund the remaining amount, including the $73,000 down payment. A separate prequalification letter was contingent, covered only a $209,000 loan and a $220,000 purchase price, and was not a firm financing commitment. Because the trial court’s failure to find for Ortiz was not against the great weight and preponderance of the evidence, the appellate court did not reach her challenges to the seller’s affirmative defenses.
Key Takeaways
- A buyer seeking specific performance must prove that she was ready, willing, and able to perform, even when the seller’s repudiation excuses an actual pre-suit tender.
- Evidence of financing for only part of a purchase price does not establish ability to perform without evidence showing how the remaining balance would be paid.
- Documents excluded from evidence and deposition passages the trial court did not designate for consideration cannot establish factual insufficiency on appeal.
Why It Matters
The decision underscores that pleading an ability to close is not enough. A real-estate buyer seeking specific performance should introduce admissible evidence of firm financing and available funds covering the entire purchase price.
The opinion also illustrates the limits of appellate review after a bench trial: when the party bearing the burden challenges a failure to find, that party must show the adverse finding is against the great weight and preponderance of the admitted evidence.