1 John T. Boyd, Chief Justice (Re t.), Seventh C ourt of Appeal s, si tt ing by assignment. Tex. Gov’tCode An n. §7 5.00 2(a) (1) (V erno n Su pp. 2 003 ).NO. 07-01-0428-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E MAY 27, 2003

______________________________ LIMESTONE GROUP, INC. Appellant
v. SAI THONG, L.L.C ., Appellee

_________________________________ FROM THE 157 TH DISTRIC T COURT O F HARRIS COU NTY; NO. 98-33467; HON. GEORGE HANKS, PRESIDING

_______________________________

Opinion

________________________________ Before QUINN and REAVIS, JJ. an d BOYD, S.J. 1 Before us is the appeal and cross appeal of Limestone Group, I nc. (Limestone) and Sai Thong, L.L.C . (Sai Thong) , respectively. We affirm the judgment of the trial court. Background The dispute arises from an atte mpted conveyance of la nd. T he parties initially executed an agreement under which Sai Thong agree d to sell Limes tone a parcel of2

prop erty. Limestone apparent ly desir ed to develop this parcel, which desire attr acted the attention of inhabitants who l ived adjacent to it. Those i nhabitants ini tiated suit to thwart either the sale of the land or Limes tone’s intere st in devel oping it. Furthermore, this suit had the apparent eff ect of causing Sai Tho ng and Limestone to amend their i nitial agreement. Indeed, the parties modified it 11 times over the course of their relati onship. So too did they

fail to complete t he transaction. This resulted in the two pursui ng cl aims against each other. Limestone sought speci fic performance of the accord. In turn, Sai Thong asked the trial court to decl are th at it did not have to convey the proper ty because Li mestone defaulted. The default involved its failure to pay $75,000 as earnest money

by a speci fied date; the prospecti ve buyer only deli vered $25,000. Moreov er, Limestone does

not dispute that it failed to pay the entir e sum. Upon trial to t he cou rt, judgment was entered denying Limestone sp ecific performance and ord ering Sai Thong to pay i ts opponent damagesequal to the amount of the earnest money

actually deliver ed. So too did thecourt ent er findings of fact and conclusionsof law. Therei n, it expr essed that

Limestone “was in breach of the Contract
as amended as a resul t [of] its failur e to deposit . . . on or

before December 30, 1998, the $75,000.00 of Final Earnest Money.” This breach “entitled Sai Thong to a declaratory judgment

repudiating the Contract . . . .” Yet, the trial courtalso found that “Li mestone had
a reasonable ex pectation gi ven the rel ationship betw een the par

ties an d previous extensions thatSai Thong would give Limestone reason able notice of the termination of the [neighbor’ s suit] and a n opportunity . . . to tender

the final earnest

money before Sai Thong repudiated the C ontract.” “ Sai Thong did not do either . . . prior torepudiating the3

Contract,”according to the trial court. The lat ter also held that award ing Sai Thong attorney’s

fees “under

the circumstances of this m atter,” “would not be equitabl e or just.” Both litig ants then appealed. Limestone’s Point Via its appellant ’s brief, Limes tone asserts on e issue or poi nt. It asks w hether “the Buyer’s failure to make a final deposit of earnest money precl ude[d] the remedy of specific performance?” The p rosp ecti ve buyer say s that it does not because its obli gation to pay the earnest money

was not acondition pr

ecedent to the formati on of the contract. Nor was its failure to compl y wi th the provi sion a material breach. We overrule thepoint for the following reasons. First, no one argues that the contrac t never came into existence because Limestone failed to pay theearnest money. Indeed, all agree tha t the conduct of the parties r esulted in the formation of a binding agreement. Moreover, it was one of the terms of that bi nding agreement

which Sai Thong invoked to bar Limeston e’s demand for specific per formance. And, logic di ctates that it cou ld no t have invo ked tha t prov ision if the contrac t nev er came into exis tence. Second, the provi sion invoked by Sai Thong to defeat recovery by Limestone is found at paragraph 12(c) of the ori ginal ag reement and states: If Pur chas er s hall not b e in defau lt h ereu nder and i f S eller f ails to consummate this Agr

eementfor any reas on, . . . the Earnest Money and any extension payme nt sha ll be immediatel y returned to Purchaser and P urchaser

shall have the right to either (i) terminate this Agreement or (ii ) enforce specific performance of Seller ’s oblig ation under this Ag reement, as Purchaser’s

sole and exclusive remedies for Sell er’s default.4

As can be seen, the contractual provision expressly addresses Limesto ne’s right to specific performance. So too does it condition inv ocation of that ri ght

upon two cri teria. One i s that the Seller fails

to perform whi le the other , and more important g iven the current dispute, is that the Purchas er (Li mesto ne) n ot be in de fau lt un der t he ac cord . Thu s, irre spec tive of whether or

not the duty to pay the earn e st money was a condition precedent to the formation of the agreement, i t constituted a potential condition precedent to the invocation of the right to receive specific perfor ma nce. Again, before Limestone coul d pursue that right, i t “shall not

be in default” under

the agreement. Next, the trial court found that Lim estone indeed was in defa ult because it did not pay the entire earnest money. No onedisputes this . Instead, Limes tone asserts t hat the default or breach w

as not material, a nd cites author ity stati ng that the br each must be material before specific per formance can be w ithheld. The two cases mentioned, Hudson
v. Wa kefield , 645 S.W.2d 427 (Tex. 1983) and Cowman v. Allen Monuments, Inc. , 500 S.W.2d 223 (Tex. C iv. App.- -Texarkana 19 73, no wri t), do indicate that on ly a mate rial breach prevents o ne from pursuing specific perfor mance. Hudso n v. Wakefield , 645 S.W.2d at 430-431; Cowmanv. Allen Monuments, Inc. , 500 S.W.2d at 226. Yet, neither involved an agreement that expressly addressed the right ofspecific performance; instead, the cour ts were mere ly orat ing up on ge nera l equi tabl e prin ciple s rela ted t o the reme dy. This distincti on is of import for parties to an agreement may contrac

tually s pecify the remedies ava ila ble to r edre ss i ts b reac h and , the reby , mod ify the le gal and equitable remedies genera lly appl icable. See GT & MC, Inc. v. Texas City Refining, Inc. , 822 S.W.2d 252, 256 (Tex. App.--Houston [1st Dist. ] 1991, writ d enied) (stat ing that parties to
a contract may agree on remedies for brea ch and that the agreed reme dy is exclus ive).2 Neit her part y argues that something ot her t han what we ha ve hel d the def ini ti on to be was int ended.

5 And, that is w hatthey

did here. Again, they restricted Limestone’s redress to two option s, and the one pe rtaining to specific performa nce required that the purchaser not b e in “default.” Next, in determ ini ng what the parties meant by “default,” it is clear that we must afford the word its plai n, ev eryd ay me aning. See GT & MC, Inc. v . Texas Cit

y Refining, Inc. , 822 S.W.2d at 256 (requiri ng that lang uage in a cont ract be afforded i ts plain, grammatical meaning). And, at least one court has held that “in everyday usage” the term
can mean “‘omission,’ ‘failure,’ or even ‘breach. ’” Alaniz v. Yates Ford, Inc. , 790 S.W.2d 38, 40 (Tex. App.--San Antonio 199 0, no writ). This interp ret atio n of the word comports with that aff orde d it b y the d ictio nary; there, it i s defined as the “failure” to do an act. See W EBSTER'S THIRD NEW INTERNATIONAL DICTIONARY UNABRIDGED 950 (1976 ). Moreover, appended to none of these defin itions are wor ds of qu alifica tion requ iring a certain measure or q uantum of omission, failure, or breach before an omi ssion, failur e or breach can be a defaul t. Thus, because the plain meaning of the word connotes a mere failure, omiss ion, or breach, we must read it i n like v ein when assessing what the par ties meant by

using it in t hei r agreement. 2 And, in so r eading the ter m, we eschew attempt to affix w

ords of qualificati on or

measure to it, such as substantial o r material. In short, the parties omitte d
w ords from the cont ract mod ifyin g the d egree of d efa ult n eed ed. B ecau se th ey did , we
m aynot now in corporate them i nto the agreement and thereby c hange it. See Cross Timbers Oil Co. v. Exxo n Corp. , 22 S.W.3d 24, 26 (Tex. App.-- Amarillo 2000, no pet.)6

(stating thatthe parties to the contract are the masters of thei r wordsand that we may not rewrite the contract to mean something that it doesnot because one par ty may now find the agreement distastef ul). Final ly , and given our interpr etation of “default,”Limestone’s fail ing or omit ting to pay the entire earnest money as required by the contract was and is a default. Simply put, itdid not perf orm an oblig ation requi red under the co ntract. Hav ing so defaulted, the purchaser

did not satisfy one of the c ondit ions prereq uisite to the invocation of its contractual right to specific performance. So, the tri al court d id n ot err in deny ing Lime ston e tha t re lie f. Sai Thong’s Points Next, through four issues, Sa i Thong contends that the trial court erre d in awar ding Limestone dama ges an d in de nyin g it attorn ey’sfees. We ove rrul e them. Damages As to the matt er of dam ages, they were impr

operly aw

arded, accordi ng to Sai Thong, because 1) ther e was no or

insufficient

evidence tosupport them and 2) Limestone did not plead for t hem. We disagree. In its judgment , the trial court expr essly “ ordered, adjudg ed and decreed that Sai Thong . . . pay to Limestone . . . t he sum of $25,000 as damages.” In its findings of f act and conclusionsof law accompany ing the award, the$25,000 was d escribed as t he sum of earnest money

that Limestone act ually pai d. That is, the t rial court concl uded that Sai Thong also breached the agreement by failing to g ive Limesto ne 1) reasonable noti ce of the end of the suit initiated b y those who did not want development upon the parcel of land and 2) opportunit

y to “tender

the final earnest

money before” r

epudiating thecontract.3 T his is si gnif icant because we rebuttabl y pr esume that all stipulati ons in a contract are dep end ent. Acme Pest Control

Co. v. Youngman , 216 S.W .2d 259, 263 (T ex. Civ. App.--W aco 194 8, no writ). 7 Because Sai Tho ng f aile d in this regard, the trial court determined tha t “. . . Limestone’s requestfor equitable relief should be grant ed and Sa i Thong must return . . . the last earnest money payment in the amoun t of $25,000.” So, while t he trial cour t referred to the $25,000 sum as “damages,” it is clear that it was merely ordering the return of the earnest money that had been paid. Furthe rmore, and upon our readin g of the judgment as a whole, we conclude that the trial court so ordered it because Sai Thong too breached the agreement. See Stettner Clinic, Inc. v. Burns , 61 S.W .3d 16, 18-19 (Tex. App.--Ama rillo 2000, no pet.) (holding that a judgment is construed li ke other w ritten documents and that the intent of the cour

t is determine d by vi ewing t he document as a w hole). Therefore, the trial court impli citly i nvoked a nd applied the rule of law holding that a p arty to a contract cannotenforce it unles s he showsthat he has performed the obligati ons imposed upon him. Carr v. Norstok Bldg Sys., Inc. , 767 S.W .2d 9 36, 9 39 (T ex. App.--Beaumont 1989,
no writ); Acme Pest Control Co. v. Youngman , 216 S.W.2d 259, 263 (Tex. Civ. App.--Waco 1948, no writ ). Or, stated differently, one cannot enforce a con tract h e breached. See Dobbins v Redden, 785 S.W.2d 377, 378 ( Tex. 19 90). And, while the rule is normally applicable to dependen t pro mises or indi visibl e contracts, Acme Pest Control Co. v. Youngman , 216 S.W.2d at 263, Sai Thong does not assert that thea gree ment at issue falls outside those categories. 3 Nor did Sai Thong pro ffer an is sue express ly contest ing4 Sai Thong does stat e under poi nt four t hat “ these concl usions [ i. e. the f indi ng that Sai Thong breached the agreement and was notenti tl ed to attorn ey’ s fees under §37.009 of t he Texas Civi l Pr acti ce and Rem edies Code] wer e inap prop riate in l ight of t he Contract

. . . . ” I t al so assert s that they “were not

support ed by the evi dence.” Nevert heless, neit her expl anati on nor ci tat ion to aut hori ty accompanied these conclusi ons. Thus, they pre ser ved noth ing fo r review . T EX
. R. A PP
. P. 38.1 (h); In re W illi am s, 998 S.W .2d 724, 730 (Tex. App.--Am arill o 1999, no pe t.). 8 the determination t hat it also br eached the contrac

t. 4 So, the re is some evidence supp ortin g the t rial c ourt ’s de cisio n to o rder the re turn of t he ea rnes t mon ey. Fina lly, that Limestone may not have ex pressly

requested da mag es matters not. Again, Sai Thong was the par ty se eking to retain theearnes t money deposi t per t he ter ms of the contract. It was th e one who ex pressly placed before the trial court t he issue of who
was to keep it. S ince Sai Thong was not enti tled to the sum, the trial court was entit led to order its r

eturn to the deposi tor. And, we find no injusti ce or wr ong in that. Attorney’ s Fees Next, Sai Thong arg ues that the tri al court erred in denying it attorney’s fees. This
was so because it was a “prevai ling party” under the contra ct. We again disagree for the following reason. As evinced by its findings of fact and con clu sions of law, the trial cour

t held that “[u]nder the cir cumstances of this matter, an award of attorney ’s fees pursuant to the Texas Civil Pr actice and Rem edies Code Sect ion 37.009

would notbe equitable or just.” (Emphasis added). Sai Thong does not attack th at specific finding on app eal. Instead, it posits that it was entitled to recover attorney’s fees under the te rms of the contract, a s alleged in its live pleading against Limestone. Yet, recovery under the contract was not a matter addressed by the trial courtin its findin gs of fact and concl usions of law . Nor does the record indi cate that the matter of recoveri ng fees under the contract, asopposed to the9

statute, was a topi c broached in a ny reques t for additional findings of fact or conclusions of law. This is fatal since Sai Thong was obli gated to req uest such additi onal findings and conclusions to preserve its complai nt for revi ew. Simplyput, if a trial court’s original findings do not address a ground of recovery or a defense, then the part y rely ing on that g round or def ense must re quest additi onal findin gs in proper form. Levine v. Maverick Cty. Water Control, 884 S.W.2d 790, 796 ( Tex. App.--San Antonio 1994, w rit denied); Sears, Roebuck & Co. v. Nichols , 819 S.W.2d 900, 907-08 (Tex. App.- -Houston [14 th Dist.] 1991, writ denied); accord , Smith v . Smith , 22 S.W.3d 140, 150 ( Tex. App--Houston [14 th Dist.] 2000, no pet.) (noti ng that Mr. Smi th had the duty torequest addi tional finding s of fact and conclusi ons of law in connection wi th the disproporti onate divisi on of the community or in connection with the trial court’s calculation of the co mm un ity porti on). By fail ing to do so, one waives his complai nt about the unmentioned ground or d efense. Smith v. Smith , 22 S.W.3d at 150; Sears, Roebuck & Co.
v. Nichols , 819 S.W.2d at 907-08. Gi ven this, Sai Thong waived itscontention that t he trial court erred by not award ing it fee s as a preva iling part y under the contract , as opposed to the statute. Having overrul ed all points of error or issues raised by

all the parties, w

e affirm the judgment of the tr ial court.

Brian Quinn Justice