### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00404- CV

John Gannon , Inc., Appellan t

v.
Gunnarson Ou tdoor Adver tising, In c., Appellee

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 20TH JUDICI AL DISTRICT NO. 99- 0584 , H ONO RAB LE RONALD G. CARR, J UDGE P RESIDING

D I S S E N T I N G O P I N I O N

When a co n t ra ct is ambig uous, its construction is a matter for the fac t finder, and

summary judgme nt is inappropriate. See R e illy v. Rangers Mgmt. , 727 S.W .2d 527, 529 (Tex. 1987);
Coker v. Coker , 650 S.W .2d 391, 394 (Tex. 1983); W .W

. Lau b a ch T

r u s t v. George town Corp ., 80 S.W .3d 149, 155 (Tex. App.—Au s t i n 2 0 0 2 , p et. denied)

. Central to the dispute here is the 1 meaning and interplay betwee n various provisions of the purcha se ag ree ment betwee n the parties.

Be cause the provisions at is s u e ar e am b iguous, and materia l fac t issues rema in as well, I would
conclude that the t rial court err ed in g ranting summary judgme nts in favor of appellee Gunna rson

See also Tex. R. Civ. P. 166a; Voorhies v. Frankel Family T rust , No. 05-08-0047 5 -C V, 1 2009 Tex. App. L EXI S 2116, at *7 (Tex. App.—Dallas Mar. 27, 2009, no pet.) (mem. op.) (“I f the contra ct is ambig uous, its interpre tation become s a fac t question, which g ener ally makes summary judgme nt improper.” (citing Coker v. Coker , 650 S.W .2d 391, 394 (Tex. 1983))) ; Davis v. American Bank of Commerce , No. 03-04-00482- CV, 2005 Tex. App. L EXI S 4902, at *6 (Tex. App.—Austin J une 23, 2005, pet. denied) (mem. op.) (“When a contra ct is ambig uous , s ummary judgme nt is inappropriate.” ( citing Coker , 650 S.W .2d at 394)).Outdoor Adver tising, I nc., on appellant J ohn Gannon, I nc.’s brea ch of contra ct claim and reque st for specific perf

ormanc e. I

there fore respe ctfully

dissent.

The Purchase Agreement

I n Aug ust 1998, the parties executed a purcha se ag ree ment in which Gu n narson
ag ree d to sell the ass ets of its outdoor sign adver tising business to Gannon in exchang e for $7,700,000. The purc hase a g ree ment provides in re levant par t:

2. Due Dilige nce Period. Wit hin five (5) day s afte r the date of this Ag ree ment (the “De livery Date” ), Seller shall make available to Purchase r the following items for inspection: (a) The Billboards, including fre e acc ess for measuring , testing, and otherwise e x amining the m. (b) A ll A d

v e r ti sing Contracts, whether cash or trade , reg arding the Assets and all information with respect to the r espec tive adver tisers. (c) All sign, building and ele ctrica l Permits relating to the Assets. (d) The L ease s an d all extensions, modifications, and amendments related there to. (e) The Equipment, including all evidenc e of title, maintenanc e rec ords, and other documents re lated ther eto. (f) The Seller’s Ground L ease s, including evidenc e of Seller’s title to such prope rties.
Purchase r shall have twenty (20) day s afte r the Deliver y Date to co m plete its due diligenc e revie w; provided, howeve r, that the due diligenc e period shall be extended for eac h day afte r the Deliver y Date that Purchase r has not rec eived the information req u es t ed i n t his Parag raph 2. On the later of twenty (20) day s afte r the Deliver y Date or the last day of any ex t en s i o n o f the due diligenc e period, as provided in Parag raph 17(c) , Purchase r shall notify Seller, in writing , of i t s acc eptanc e or reje ction of the Assets based upon the results of the due diligenc e and revie w of the

2items listed in Parag raph 2, in Purchase r’s sole discretion. I f P urcha ser re j ec t s the Assets, this Ag ree ment shall be null and void and neither party shall have any further rig hts, liabiliti es or obliga tions pursuant to this Ag reem en t (except as otherwise specific ally provided here in, including the return to Purchase r of the Deposit (as here in defined) with any

acc rued inter est).

* * *

5. Time and Place of Closing. The transac tion contemplated by this Ag ree ment shall be consummated (the “Closing” )

. . . on September 10, 1998, or two (2) day s afte r the date all of the conditions set forth in Parag raphs 12 and 13 here of shall be satisfied in full, whicheve r is later, subject, howeve r, to the provisions of Parag raph 17 he reof

. . . . * * *
9. Purchase r’s Represe ntations and Warranties. Purchase r re prese nts and
war rants to Seller that: . . . (b) No consent, authorization, order or approva l of, o r fi ling or re g istration with, any g overnme ntal authority or other perso n i s require d for the execution and delivery by Pu rc h as er of this Ag reem en t and the consummation by Purchase r of the transac tion contemplated by

this Agr eeme nt. . . .
10. Seller’s R epresentations and Warranties. Seller repr esents and war rants to Purchase r that: . . . (d) The financial and oth er i n formation related to the Assets which has been provided to Purchase r and which is attached to this Ag ree ment is true and complete and acc urate ly and completely ref lects in
a ccor dance with g ener ally acc ep te d a c c o u n ti n g p r in c ip le s c o n s is te n tl y applied, all reve nues g ener ated and collecte d, and costs of operation, of the Assets during the time periods specifie d there in. Since the dates of such financ i al information, there has been no materia l adver se chang e in the financ ial condition or operations of the Assets. (e) Seller has g ood and marke table title to, an d the power to sell, the Assets, fre e and clea r of an y liens, claims, encumbr ance s and
secur ity interests. . . .

3(f) Seller has not suffe red or, to the best of its knowledg e, been threatened with any materia l adver se chang e in any relationship with any of their lessor s or adve rtisers. (g ) Ex hibits “B ” and “C” attache d here to corr ectly and completely list all Adver tising Contracts and L ease s, along with sales commission ag ree ments or other arr ang ements to which Sel l er is a party on the date here of and which relate to t h e Assets. No other materia l contra cts exis t which relate to the Assets. The Adver tising Contracts and L ease s are in full forc e and binding upon the parties there to, and they are either fre ely transfe rable to Purchase r without the consent or approva l require d of any other person or entity , or Seller shall have prior to Closing obt ained a n y co nsents require d to acc omplish such transfe r(s). Seller shall also provide Purchase r with a lease estoppel
ce rt i fi cate executed by the lessors in the form attache d here to as Ex hibit “G” for eac h of the L ease s prior to Closing. No party to any of the fore g oing ag ree ments has advised Seller that it will not rene w such ag ree ment with Seller, or with Purchase r following the Closing, in acc ordanc e with the terms of such ag ree ment. No defa ult by Seller has occur red there under which has not be en cure d in full and, to the best of Seller’s knowledg e, no defa ult by the other contra cting parties has occ urre d there under w hich has not bee n cure d in full. . . .
11. Conduct Prior to the Closing. Be t we en the date here of and the Closing Date : . . . (d) Seller shall not amend or otherwise modify any ag re ement or instrument included among the Assets, including, without limit ation, any L ease , Adver

tising Contrac t or Permit.
* * *
17. Termination. This Ag ree ment and the transac tion contemplated here by may be terminated at any time prior to the Closing: (a) by the mu t u al wr i t ten consent of Purchase r and Seller; (b) by any of such parties if the Closing shall not h av e o ccur

red within thirty (30) day s of the date of this Ag ree ment a result of the non-fulfillment at such time of any of such party ’s conditions set forth in Parag raphs 12 or 13, as the ca s e m ay be; or (c) by Purchase r in
acc ordanc e with Parag raph 2 here of. I n the event o f s u ch t ermination, Purchase r will be entitled to an immedi at e re fund of the Deposit with any acc rued inter est.

4Parag raph 17 ref ere nces the “conditions s et fo rt h” in para g raphs 12 and 13. Parag raph 12 is titled “Condition to Seller’s Obliga tion” and includes as a condition to Gunnar son’s obligation to consummate the transac tion that (i) “ea ch and ever y repr esentation and war

ranty made by Purchase r shall have been true and corr ect when made, and shall be true and corr ect in all materia l

respe cts as if orig inally made on and as of the Closing Date,” and (ii) “all obligations of Purchase r

to be perf ormed here under throug h, and including on, the Closing Date shall have been perf ormed.” Parag raph 13 is titled “Condition s to Purchase r’s Obligations” and includes the conditions to
Gannon’ s obligation to consummate the transa ction.

The Contr oversy

After disputes betwee n the parties arose over the scope and terms of the ag ree ment,
Gunnar son notified Gannon in J anuar y 1999 that it was not g oing to co m p l et e t he transac tion. Although the parties continued to neg otiate for a period of t ime, Gannon filed suit in Marc h 1999
for brea ch of contra ct and soug ht, among its reque sted relief , full or partial specific perf ormance
“with respe ct to the interest which [Gunnarson] can transfe r, with an abate ment in the purcha se price proportionate to the defic iency o r defe ct.” Gannon contende d, among its g rounds for brea ch of

contra ct, that Gunnar son failed to comply with specifie d provisions of the ag ree ment that included: (i) para g raph 2, the due diligenc e provision, by not providing specifie d information; (ii) para g raphs 10(d), (e) , (f) , and (g ), provisions a ddressing Gunnar son’s repr esentations a nd war ranties, beca

use
the information that was provided wa s not acc urate and the assets wer e not as repr esente d; and

5(iii) para g raph 11(d), one of the provisions addre ssing Gunnar son’s conduct prior to closing , b eca use
lease s wer e modified afte r the execution of the ag ree ment “re sulting in highe r expenses and/or
lower inc ome.”

Did the trial court err in granti ng Gunn arson’s m otion for s u m m a r y j u dgm ent on Gannon ’s breach of c ontract claim ?

After the case had been pending nine y ear s, Gu n narson sought sum mary judgme nt
pursuant to rule 166a(c ) on the g round t h at b oth parties voluntarily terminated the contra ct and
pursuant to rule 166a(i) on the g round that Gannon coul d produce no evidenc e that Gunnar son
brea ched the contra ct bef ore it wa s terminated or that Gannon perfor med under the contra ct. See 2

Tex. R. Civ. P. 166a(c ), (i). Gunnar son’s g rounds rested upon its contention that the contra ct terms
at issue wer e unambig uous and the re levant fa cts undisputed. Gunnar son states in its mot ion:

Gunnar son argues in its moti on: 2

Gannon terminated the cont ract under para g raph 2 and 17(c) of the Ag ree ment no later than October 15, 1998, wh en Gannon reje cted the Assets. In addition,

. . . Gun narson terminated the contra ct on J anuar y 15, 1999 when he sent Gannon the termination letter.
* * *
Def endant moves for a no evidenc e summary judgme nt on the g round that Plaintiff
can produce no evidenc e that Gunnar son brea ched any contra ct prior to the contra ct expiring on i t s o wn terms. I n other words, even assuming the exis tence of a valid contra ct on Aug ust 13, 1998 (which Def endant den i es), Plaintiff’s claim fails as a matter of law beca

use it cannot produce evidenc e of a brea ch within the time period of the contra ct. All of Ga n n o n’s alleg ations conce rning brea ch occur afte r the contra ct was terminated. I n addition, Gannon’ s contra ct claim fails beca use there is
no evidenc e of Gannon’ s perf orman ce o n t h e contra ct, a condition prec edent to Gunnar son’s duty

. Specifica lly , there is no evidenc e that Gun n ar s o n h ad funds or financ ing to pa

y the Purcha se Price, or

acc epted the A ssets.
6At issue in this motion is Gunnar son’s contention that the contra ct, if it exis ted at all,

was terminated by the p ar ties.

. . . Movant seeks the Court’s interpre tation of unambig uous terms outlining the parties’ right to terminate the contra ct, and apply its interpre tation to the specific undisputed and proven fac ts that resulted in contra ct termination on at lea st two separate occ asions.
* * *
The merits of this Motion rest on the unambig uous terms found in Paragr aphs 2, 5, 12, 13 and 17 of the Ag ree ment.

Gannon responded to the motion, contending that fac t issues rema in prec luding

summary judgme nt and attaching evidenc e to its response
. I ts evidenc e included: (i) the aff idavits
of J ohn Gannon wh o primarily neg otiated and signe d the ag ree ment on behalf of Gannon,
Ger ald J

. Goff who acte d as a broker on t h e transac tion, Scott Ba x ter who worke d for Frost Bank
and aver red conce rning Gannon’ s financ ing for the transac tion, an d T h o m as Glass who aver red

as an expert conce rning damag es; and (ii) the depositions of J ohn Gannon , Ge ra l d Goff, and

Dene le Gunnar son. During her deposition, Dene le Gunnar son testified that she worke d for
Gunnar son and was involved in providing information to Gannon afte r the parties execut ed the purcha se ag ree ment. She testified conce rning inacc urac ies in the information provided to Gannon
and that she did not consider the purcha se ag ree ment to be binding, including the repr esentations and

war ranties pr ovisions, because the ag ree ment was a “wor k in prog ress.”

Be cause all of Gunnar son’s g rounds for summary judgme nt are depend en t on its interpre tation of the provisions at issue, this Court must deter mine as a threshold matter whether it
should inter

pret the ag ree ment as a matter of law or whether the provisions at issue are ambig uous
and for the fa ct finder . The rule s for c onstruing c ontrac ts are w ell established:

7I n construing a written contra ct, the primar y conce rn of the c ourt is to a scer tain the true intentions of the parties as expressed in t h e instrument. To achie ve this objective, courts should examine and consider the entire writ i n g in an eff ort to harmonize and g ive eff

ect to all the provisions of the contra ct so that none will be rende red meaning less. No single provision taken alone wi l l be g iven controlling eff ect; rathe r, all the provisions must be considere d with ref ere n ce t o the whole instrument.

. . . Whether a contra ct i s ambig uous is a question of law for the court to de cide by looking at the contra ct as a whole in light of the circ umstances prese nt when the c ontrac t was ente red.

Coker , 650 S.W .2d at 393-394 (empha sis in orig inal) (citations omitted). A contra ct is ambig uous
“whe n its meaning is un ce rtain and doubtful or it is rea sonably susceptible to more than one meaning .” Id. at 393. The construction of an ambig uous contra ct is a question of fac t. See Reilly , 727 S.W .2d at 529; Coker , 650 S.W .2d at 394.

Fur ther, althoug h neith er party pleade d ambig uity , this Court may conclude the

contra ct is ambig uous. See Sage St. A ssocs. v. Northdale Constr. Co. , 863 S.W .2d 438, 445 (Tex. 1993) (“A court may conclude that a contra ct is a mbiguous even in the absenc e of such a pleading by either party .”); Coker , 650 S.W .2d at 394-95 (conc luding ag ree ment was ambig uous even though
b oth parties asser

ted proper

ty settlement ag ree ment was unambig uous and moved for s u m m ar y judgme nt); W

.W

. Laubach Trust , 80 S.W .3d at 155 (“A co u rt may conclude that a contra ct is ambig uous even in the a

bsence of such a

pleading by

either pa rty .”).

T urning to a revie w of the provisions at issue, the parties dispute the i n t er p l ay
betwee n the prov i sions, the meaning of “re jects the Assets” in para g raph 2, and the meaning of
subsection (b) in para g raph 17 providing the rig ht to terminate “by any of such parties if the Closing
shall not have occur

red within thirty (30) day s of the date of this Ag ree ment a res u l t of the

8non-fulfillment at such time of any of such party ’s conditions set forth in Parag raphs 12 or 13, as the

case may be.”

Ba sed upon its interpre tation of the ag ree ment, Gunnar son contends that (i) Gannon reje cted the a ssets and did not acc ept the assets within the meaning of para g raph 2 both ora lly and
in writing on sever al occa sions when it raised specific complaints and reque sted that Gunnar son take
actions conce rning specifie d lease s and adver tising contra cts there by rende ri n g t h e ag ree ment
“nu l l an d void,” and (ii) Gunnar son proper ly terminated the ag ree ment pursuant to para g raph
17 beca use various conditions in para g raphs 12 and 13, i n cl u d i n g various repr esentations in

para gra p h s 9 an d 1 0, had not been met within thirty day s of the date of the ag ree ment. Gannon

counter s that (i) it did not reje ct the assets within the meaning of para g raph 2 by its “voice d conce rns
about the g aps and discrepa ncies in the information Gunnar son provided” ; and (ii) the ref ere nces in

para g raph 17 to pa

rag raphs 12 and 13 do not me an and wer e not intende d to me an that Gunnar son
could term i n ate the ag ree ment for Gunnar son’s own failure to perf orm its obliga

tions under the

ag ree ment afte r the pa ssag e of thirty day s of the date of the purc hase a g ree ment.
At a minimum , I would conclude that the meaning and interplay of the provisions at
issue are uncer

tain and doubtful, fairly susceptible to mor e than one meaning , and, there fore , ambig uous. See Coker , 650 S.W .2d at 393. Be cause Iwould conclude that the provisi ons of t he

3

I would also conclude that the evidenc e prese nted by the parties raises fac t issues 3
conce rning whether one or both parties voluntarily terminated the ag ree ment by thei r ac t i o n s and whether Gunnar son brea ched the contra ct when it ref used to complete the transac tion. See Tex. R. Civ. P. 166a. That Gunnar son continued to work to comply wi t h t h e agre ement afte r its J anuar y 1999 letter is inconsistent with its asser tion that it terminated the ag ree ment. J ohn Gannon aver red:
The agre ement was signe d by both parties, and initialed by both parties wher e chang es wer e made. I submitt ed the require d $25,000 in ear nest money to an escr ow 9purcha se ag ree ment at issue are ambig uous and for the fac t f inder, I would conclude that summary judgme n t o n Gannon’ s brea ch of contra ct claim was improper. See Reilly , 727 S.W .2d at 529;
Coker , 650 S.W .2d at 394-95; W .W . Laubach Trust , 80 S.W .3d at 155.

I n its analy sis upholding the trial court’s g ranting of summary judgme nt, the majority
does not addre ss whether or not the agr eeme nt is ambig uous but concludes : (1 ) Gannon failed t o
raise the fac tual dispute of whether the due diligenc e period had expired in its response to summary judgme nt; (2) by failing to raise the issue, G annon wa ived any argument conce rning “ac cepta nce”
of the assets; and (3) we, there fore , must uphold th e t ri al court whether or not g ranting summary judgme nt on this “ac cepta nce” g round was corr ect. Gunnar son, howeve r, did not asser t as a g round for its summary

judgme nt that the due dilige nce pe riod had e x pired.
“A motion for summary judgme nt must itself expressly prese nt the g rounds u p o n
which it is made, and must stand or fall on these g rounds alone.” Scienc e Spectrum, Inc. v. Martinez , 941 S.W .2d 910, 912 (Tex. 1997) (citing McConnell v. Southside Indep. Sch. Dist ., 858 S.W .2d 337,
341 (Tex. 1993)); see Tex. R. Civ. P. 166a(c ) (“The motion for summ ary judgme nt shall state t he specific g rounds t here for.” ). In its motion, Gunnar son contende d that it was entitled to summary judgme n t b as ed u p on its interpre tation of para g raph 2, even though the parties “dispute whether
Gunnar son provided all of the materia l require d under the Due Dilige nce provisions.” Gunnar son 4

ag ent, and perf

ormed all of my obligations under the contra ct. Howeve r, Mr. Gunnar son ref

used to deliver the purcha sed assets to me, and ref used to close the transac tion. . . . The sale ne ver oc curr ed.
Gunnar son’s motion for summary judgme nt further states that the “par ties disag ree and 4 dispute whether one or the other [party ] fully perf ormed under the contra ct. Howeve r, none of the disputed fac ts can support a brea ch of contra ct claim once the Court rea ds, interpre ts, and construes the Ag ree ment to those fac ts which are bey ond dispute.”
10contende d that Gannon rejec ted t he assets—and there fore did not acc ept t hem—by its complaints

and reque sts that Gunnar son t ak e ce rt ain actions conce rning the assets, irrespe ctive of whether

or not the due diligenc e period had ex p ired. I n other words, having conce ded that the parties 5 disputed Gunnar son’s compliance with para g raph 2 to provide information in its motion, Gannon’ s
summary judgme nt did not expressly prese nt or stand on this g round. Scienc e Spectrum, Inc ., 6

941 S.W .2d at 912.

Gunnar son’s “ac cepta

nce” argument re sts upon its interpre tation of the sentenc e in 5 para g raph 2 that states: “I f Purchase r reje cts the Assets, this Ag ree ment shall be null and void

. . . .” By conce ding a fac t issue co n ce rn i n g its obligation to provide information, Gunnar son could not have been relying upon the proce eding senten ce s i n p arag raph 2 beca use Gannon’ s obligation to acc ept or re

j ec t the assets is conditioned upon its rec eipt of the listed information and materia ls. Those sente nces state :
Purchase r shall have twenty (20) day s afte r the Deliver y Date to complet e its due diligenc e revie w; provided, howeve r, that the due diligenc e period shall be extended for eac h day afte r the Deliver y Date that Purchase r has not rec eived the information reque sted in this Parag raph 2. On t h e l at er of twenty (20) day s afte r the Deliver y Date or the last day of any exten s i o n o f t h e due diligenc e period, as provided in Parag raph 17(c) , Purchase r shall notify Seller, in writin g, of its acc eptanc e or reje ction of the Assets based upon the results of the due diligenc e and revie w of the items list ed in Para g raph 2, in Purcha ser’ s sole discretion.
There was summary judgme nt evidenc e that Gunnar son failed to provide the contra ctually 6 require d information and materia ls to Gannon and that the provided information was not acc urate

. I n her de position, Denele Gunna rson testified that the purchase ag ree ment, including the exhibi ts, wa s a “wor

k in prog ress,” and that the ex hibits attache d to the agr eeme nt wer e not acc ura t e. T h e evidenc e also included a letter from counsel for Gan n o n t o co u n sel for Gunnar son sent in Fe bruar y 1999 detailing inacc urac ies in the information that was provided and information that was y et to be provide d.
11Did the trial co u r t er r i n granti ng Gunn arson’s m otion for sum m ary judgm ent on Gannon ’s

request for spec ific perf

orm ance ?
The majority also uph o l d s the trial court’s g ranting of summary judgme nt on the

reme dy of specific perf

ormanc e. Gunnar son filed a separ ate motion for summary judgme nt pursuant

to rule 166a(c ) conce rning specific perf ormanc e, but a sserted the same g rounds that are depende nt

upon its interpre tation of the purcha se ag ree ment. Gannon’ s response addre ssed both motions. For
th e rea sons stated above conce rning Gunnar son’s motion for summary judg me n t o n G a nn o n ’ s b r e a c h
of contra ct claim, I would co n cl u d e that the trial court err ed in g ranting summary judgme nt

conce rning specific perf

ormanc e.
Gunnar son also soug ht summary judgme nt pursuant to r u le 1 6 6 a (i) on the g round that
Gannon had no evidenc e that it was rea dy , willing and able to pay the purcha se price beca use there

was no evidenc e that Gannon had the cash on hand or a written commitment for financ ing. See Tex.
R. Civ. P. 166a(i); W

ilson v. K lein , 715 S.W .2d 814, 821-22 (Tex

. App.—Austin 1986, writ ref ’d n.r.e.) (discussing require ments of “t en d er ” as prer equisite to the equitable reme dy of specific perf ormanc e). The evidenc e, howeve r, prese nts contra dictory acc ounts of the eve n t s l eading up

to the decision by Gunnar son not to proce ed with the transac tion a nd whether Gannon would have
been rea dy , willing and able to complete the transac tion had Gunnar son not ref used to proce ed with
the transa ction.

Viewing the evidenc e in the light most favor able to Gannon, as we are require d to do by our standar d of re view, Ga nnon timely

paid the esc row amount a nd was in complianc e with its
bank’s require ments to secur e the financ ing for the anticipated closing of all or some portion of the

assets up until the time Gunnar son advised Gannon that it was not g oing to complete the transac tion.

12See Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W .2d 546, 548-49 (Tex. 1985). There also was evidenc e

that Gunnar son did not comply with its obligations under the ag ree ment and that its failure to comply
adver sely impacted Gannon’ s eff orts to co m p lete its financ ing. I would conclude that Gannon
satisfied its burden under rule 166a(i) to raise a fac t issue as to whether it was entitled to the reme dy of full or pa

rtial specif

ic per formanc e. 7

Be cause the contract t erms at issue are ambig uous, and material fac t issues rema in

as well, I would reve rse the summary judgme nts g rante d in favor of Gunnar son Outdoor Adver tising,

I nc., and r emand f

or fur ther proc eeding s.

__________________________________________ J an P. Patterson, J ustice

Be fore J ustices Patterson, Pury ear and Pember

ton Filed: August 11, 2010

The majority conclude s that Gannon, as a party depending on third-par ty financ ing, had to 7 have a “firm commitment” for financ ing to be entitled to specific perf ormanc e. Given the evidenc e that Gunnar son’s failure to perf orm its contra ctual obligations prior t o closing adver sely aff ecte d Gannon’ s financ ing eff

orts, I disag ree that, on these fac ts, Gannon was require d to show that it had financ ing in place to prec lude summary judgme nt on the reme dy of specific perf ormanc e. Compare Luccia v. Ross , 274 S.W .3d 140, 149-50 (Tex. App.— Ho u ston [1st Dist.] 2008, pet. denied) (summary judgme nt evidenc e i n cl u d i ng proof of financ ing conclusively established tender wher e “undisputed evidenc e shows [purchaser ] communicated h i s wi l lingne ss and ability to perf orm”); Roundville Partners v. Jones , 118 S.W .3d 73, 80 (Tex. App.—Austin 2003, pet. denied) (addr essing specific perf

ormanc e and c oncluding issue of fact whether prevented from tender ing pe rfor mance by actions of opposing party ).
13