PJC Business 2024

PJC 115.57

D AMAGES

PJC 115.57 Predicate Question for Award of Specific Performance [Insert predicate, PJC 115.1.] QUESTION ______ Was Paul Payne ready, willing, and able to perform under the agreement ? Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. The above question should be used when a party seeks the equita ble remedy of specific performance of a contract. Pathfinder Oil & Gas, Inc. v. Great Western Drilling, Ltd. , 574 S.W.3d 882, 890 (Tex. 2019). To obtain specific perfor mance, a plaintiff bears the burden of showing that it was ready, willing, and able to perform under the contract at all relevant times. DiGiuseppe v. Lawler , 269 S.W.3d 588, 595, 598–99 (Tex. 2008). The Committee notes that the question may need to be modified accordingly if the evidence supports a distinction between being ready, will ing, and able to perform at the time of performance and at the time of trial. Although the expediency, necessity, and propriety of equitable relief is a matter for the court, a jury may be required to resolve disputed issues when material facts are contested. Pathfinder Oil & Gas , 574 S.W.3d at 886. When contested fact issues must be resolved before a court can determine the expediency, necessity, or propriety of equitable relief, a party is entitled to have a jury resolve the disputed fact issues. Path finder Oil & Gas , 574 S.W.3d at 887, 890; State v. Texas Pet Foods, Inc. , 591 S.W.2d 800, 803 (Tex. 1979). A failure to obtain a factual finding on this predicate when there is a fact issue for a jury may result in a party being legally precluded from recovery. DiGiuseppe , 269 S.W.3d at 598–99 (rendering judgment against party’s claim for spe cific performance where issue was not expressly submitted to jury). Economic damages not always precluded. The existence of a remedy at law generally forecloses the availability of equitable relief in the form of specific perfor mance. Sharyland Water Supply Corp. v. City of Alton , 354 S.W.3d 407, 423 (Tex. 2011). In appropriate circumstances, however, the court may order economic damages occasioned by the delay in performance in addition to specific performance. See, e.g., Heritage Housing Corp. v. Ferguson , 674 S.W.2d 363, 365 (Tex. App.—Dallas 1984, writ ref’d n.r.e.). This compensation is not considered breach of contract damages, but rather “equalizes any losses occasioned by the delay by offsetting them with money payments.” Paciwest, Inc. v. Warner Alan Properties, LLC , 266 S.W.3d 559, 575 (Tex. App.—Fort Worth 2008, pet. denied) (quoting Heritage Housing Corp. , 674 S.W.2d at

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