Opinion issued January 23, 2024

In The

Court of Appeals 

For The

First District of Texas 

————————————

NO. 01-20-00326-CV

———————————

EVA CASAS, Appellant

V.

CASTANO ENTERPRISES, LLC D/B/A CUBE INVESTMENTS, Appellee

On Appeal from the 215th District Court

Harris County, Texas

Trial Court Case No. 2018-70094

MEMORANDUM OPINION

Appellant Eva Casas appeals from the trial court’s order granting summary 

judgment in favor of appellee Castano Enterprises, LLC d/b/a Cube Investments 

(Cube Investments) in its suit seeking specific performance of two contracts. In eight 

issues, Casas contends that the trial court erred because (1) the underlying judgment 
2

ordering specific performance is impossible to perform due to the appointment of a 

receiver in another case in which Cube Investments was a party; (2) the contracts in 

question were not sufficiently clear and specific as required to grant specific 

performance; (3) a fact issue exists regarding whether Cube Investments was a 

“ready, willing, and able buyer” thereby precluding summary judgment; (4) the court 

failed to consider an affidavit submitted with Casas’s second motion for 

reconsideration which contravened appellee’s summary judgment affidavit; (5) 

specific performance is not available because the contracts were inequitable and 

unfair; (6) specific performance is not available because Cube Investments lacked 

“clean hands”; (7) the contracts are void because they constitute an illegal securities 

transaction in violation of Texas law; and (8) the trial court’s judgment is not a final 

judgment. 

We affirm the trial court’s judgment.

Background

A. Factual History 

Casas owned two adjacent properties located at 1707 and 1709 Gano Street, 

in Houston, Harris County, Texas. On December 21, 2017, Casas and Cube 

Investments entered into a Joint Venture Agreement (JVA) “for the development 

and sale of the land and properties located at LOTS 50 and 51 BLOCK 7, LOTS 48 

and 49 BLOCK 7 CASCARA otherwise known as 1709 and 1707 Gano Street, 
3

Houston, TX 77009[.]” The JVA set forth, among other terms, the scope and 

description of the agreement, each party’s contributions and responsibilities, and the 

division of profits. In particular, the JVA stated that Casas was to contribute “the 

land” to the joint venture, a portion of which was subject to an existing reverse 

mortgage with a principal balance of $125,000.00, and that Cube Investments had 

spent $25,000 to do feasibility studies on the land, worked with architects and 

engineers, and paid designer fees. The JVA was signed by Casas and Juan Castano 

on behalf of Cube Investments.

In March 2018, Casas entered into a sales agreement with Billie Garza, a 

realtor at Realm Realty, to list the 1707 Gano Street property for sale. After Garza 

listed Casas’s property and a sales contract was in place, she learned of the JVA 

between Casas and Cube Investments. In her deposition, Garza testified that she 

forwarded a copy of the JVA to her broker, and the broker sent it to Realm Realty’s 

attorneys who determined that it was a valid agreement.

With Garza’s assistance, Casas negotiated a release from the JVA and a new 

agreement with Cube Investments. Under the terms of the new agreement, Cube 

Investments agreed to release any claims it had against Casas for her breach of the 

JVA and allow Casas to sell 1707 Gano Street, in exchange for which Casas agreed 

to transfer ownership of 1709 Gano Street to Cube Investments and to pay off all 

debts, liens, homeowner’s dues, taxes, and other burdens related to it. Garza testified 
4

that she advised Casas that she was not a lawyer, she explained the terms of the 

negotiated agreement to Casas, and Casas did not appear to have difficulty 

understanding the agreement. Garza advised Casas that under the terms of the 

negotiated agreement, once 1709 Gano Street was remodeled and sold Casas would 

receive $70,000 up front from the sale, and in the event Cube Investments made 

$220,000.00 in net profit, Casas would receive any additional amount above 

$220,000. Garza told Casas that she believed the terms were “very fair” and that, in 

Garza’s opinion, Casas was receiving market value for the two properties. Garza 

testified that Casas later conferred with an attorney before she executed the 

negotiated agreement and prior to closing on the sale of 1707 Gano Street. 

Casas signed the negotiated agreement on July 9, 2018. Casas executed 

another agreement dated July 11, 2018, which stated that her son, who was then 

living at 1709 Gano Street, would vacate the premises by August 31, 2018.

B. Procedural History 

On October 2, 2018, Cube Investments sued Casas alleging that after Casas 

closed on the sale of 1707 Gano Street and received the funds from the sale, she 

refused to comply with the agreement related to the transfer of 1709 Gano Street to 

Cube Investments. Cube Investments asserted claims for breach of contract and 

fraudulent inducement against Casas and, in the alternative, it sought specific 
5

performance to compel Casas to transfer the 1709 Gano Street property to Cube 

Investments.

Casas answered asserting a general denial and counterclaimed that Cube 

Investments engaged in an illegal securities transaction in violation of Texas Blue 

Sky laws. She further alleged that specific performance is not a remedy available in 

in a real estate contract, and that Cube Investments was not entitled to equitable relief 

due to unclean hands.

Cube Investments moved for summary judgment (1) seeking a declaratory 

ruling that the July 9, 2018 agreement was a valid and enforceable contract and that 

Casas breached the contract, and (2) requesting specific performance to compel 

Casas to comply with the agreement. Cube Investments attached to its summary 

judgment motion excerpts from Garza’s deposition transcript, the JVA, the signed 

July 9, 2018 negotiated agreement, and the signed July 11, 2018 agreement stating 

that Casas’s son would vacate the premises.

Casas responded to the motion arguing that (1) specific performance may only 

be granted when the contract on which it is based is clear and specific; (2) Cube 

Investments failed to prove that it was a ready, willing, and able buyer as required 

to obtain specific performance and therefore a fact issue existed precluding summary 

judgment; (3) the bargain Cube Investments sought to enforce is inequitable and 

unfair and thus it was not entitled to equitable relief; (4) Cube Investments lacked 
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clean hands because it attempted to mislead and defraud Casas through its 

misrepresentations; and (5) Cube Investments engaged in an illegal securities 

transaction which may not be enforced by specific performance.

Cube Investments supplemented its summary judgment motion with the 

affidavit of Johnny Hays. Hays attested that based on the floorplan, remodeling 

evaluation, and costs submitted by ACAD Design + Build, he was ready, willing, 

and able to invest and financially support the remodeling and sales plan for 1709 

Gano Street.

Casas amended her summary judgment response. In addition to re-urging her 

previous arguments, Casas argued that Hays’s affidavit attached as an exhibit to 

Cube Investments’s supplemental summary judgment motion should not be 

considered because it was never produced in discovery, the affiant’s background and 

the information upon which he relied for his opinions were not subject to crossexamination or investigation, and his testimony was hearsay. Casas attached her 

affidavit to her amended summary judgment response.

The trial court signed an order granting Cube Investments’s summary 

judgment motion on January 14, 2020.

On January 23, 2020, Cube Investments filed a motion to supplement the trial 

court’s summary judgment order. In its motion, Cube Investments stated that the 

trial court’s January 14, 2020 order failed to address Casas’s counterclaims and did 
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not state that it was a final order addressing all the parties’ claims. Cube Investments 

requested that the trial court enter a final order disposing of all clams.

Casas moved for reconsideration of the trial court’s summary judgment order. 

Casas argued that Cube Investments was seeking a modification of the summary 

judgment to dispose of Casas’s counterclaims which were not properly addressed in 

either Cube Investments’s summary judgment motions or the trial court’s summary 

judgment order. She further argued that fact issues existed precluding summary 

judgment and that new evidence existed warranting reconsideration of the trial 

court’s summary judgment order.1

Casas filed a second motion for reconsideration alleging new evidence existed 

that raised fact issues regarding whether Cube Investments was a willing, ready, and 

able buyer of 1709 Gano Street. She attached to her second motion an affidavit of 

Johnny Hays, General Manager of Jet Lending, LLC. In it, Hays stated that while 

Jet gave pre-approval to Castano Enterprises, LLC or one of its affiliates for a loan 

to purchase and remodel the property located at 1709 Gano Street, it did not have 

sufficient information to give actual approval of a loan and Jet was not considering 

the remodeling project or approving a loan to Castano Enterprises at that time. 

1 The trial court’s docket sheet includes an entry dated March 2, 2020 stating 

“REHRY - ORDER SIGNED DENYING REHEARING.” The record does not 

contain this order.
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Casas’s second motion for reconsideration was not set for hearing, and the trial court 

did not rule on Casas’s motion. This appeal followed.

Finality of Judgment

In her eighth issue, Casas contends that the trial court’s January 14, 2020 order 

granting summary judgment in favor of Cube Investments did not dispose of all the 

parties’ claims. Specifically, she argues that the order did not dispose of her 

counterclaims and therefore is not a final appealable judgment. Because Casas 

challenges finality of the trial court’s judgment which implicates our jurisdiction 

over this appeal, we consider it first. 

This Court generally has jurisdiction only over appeals from final judgments 

and specific interlocutory orders that the Legislature has designated as appealable 

orders. See CMH Homes v. Perez, 340 S.W.3d 444, 447–48 (Tex. 2011); see also 

TEX. CIV. PRAC. & REM. CODE §§ 51.012, 51.014. “[T]he general rule, with a few 

mostly statutory exceptions, is that an appeal may be taken only from a final 

judgment.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A 

judgment issued without a conventional trial on the merits is not final unless (1) it 

actually disposes of every pending claim and party or (2) it clearly and unequivocally 

states that it finally disposes of all claims and parties, even if it does not actually do 

so. Id. at 205.
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The record reflects that Cube Investments filed its original petition on October 

1, 2018, asserting claims for breach of contract and fraudulent inducement against 

Casas. Casas answered on October 31, 2018 and asserted a counterclaim based on 

Cube Investments’s alleged engagement in an illegal scheme to sell unregistered 

securities.

In its summary judgment motion, Cube Investments requested a declaration

that Casas “breached the [parties’] contracts, and specific performance of the 

contracts for the remodeling of” the residential real property at issue. Neither Cube 

Investments’s summary judgment motion, nor its later-filed supplement, addressed 

Cube Investments’s own claim for fraudulent inducement or Casas’s counterclaim 

alleging a violation of securities laws. 

In its January 14, 2020 summary judgment order, the trial court 

ORDERED, ADJUDGED, and DECREED that Plaintiff, CASTANO 

ENTERPRISES, LLC D.B.A CUBE INVESTMENTS’ Motion for 

Summary Judgment Seeking Declaratory Ruling and specific 

performance pursuant to the July 9, 2018 contract, and the subsequent 

July 11, 2018 addition to said contradict [sic] entered into between EVA 

CASAS and CASTANO ENTERPRISES, LLC D/B/A CUBE 

INVESTMENTS is GRANTED in its entirety[.]

The trial court’s order granting summary judgment granted only the relief requested 

in the summary judgment motion and did not contain finality language or otherwise 

clearly indicate that the trial court intended to completely dispose of the case, 
10

including Cube Investments’s fraudulent inducement claim and Casas’s securities 

law counterclaim.

After concluding that Casas’s appeal did not appear to be from a final 

judgment actually disposing of all claims and parties and unequivocally stating that 

it finally disposes of all claims and parties, this Court entered an order on December 

14, 2021 withdrawing the case from submission and ordering Casas to file a response 

addressing the lack of a final judgment and demonstrating that this Court had 

appellate jurisdiction over her appeal from the trial court’s summary judgment order.

Casas filed a response arguing that the trial court’s order was final because it 

granted Cube Investments’s summary judgment motion requesting a declaratory 

ruling that the parties’ contract was valid and enforceable and, in doing so, it 

necessarily disposed of the parties’ remaining claims that the contract was invalid 

and unenforceable on the basis of fraud and securities law violations. She pointed to 

the language in the judgment stating that the trial court had considered the pleadings 

(which would include the parties’ claims of fraud and securities law violations) as 

well as the summary judgment motion and response, as demonstrating the trial 

court’s intention that its judgment dispose of all claims. She further noted that 

although she believed the judgment was final, this Court could abate the appeal and 

direct the trial court to clarify whether it intended its judgment to be a final, 

appealable judgment. Cube Investments replied stating that it agreed with Casas that 
11

the trial court’s order was intended to be a final judgment because (1) Casas asserted 

her defenses that the contract was invalid and unenforceable in her summary 

judgment response and amended response considered by the trial court; and (2) the 

trial court denied Casas’s motion to reconsider thus confirming its intention to reject 

Casas’s claims that the contract was invalid and unenforceable. 

On August 25, 2022, this Court abated and remanded the case to the trial court 

to permit the trial court to clarify whether the summary judgment was final. On 

September 21, 2022, the trial court entered a Final Judgment on All Claims, stating, 

in relevant part: 

After considering CASTANO ENTERPRISES, LLC D/B/A CUBE

INVESTMENTS’ Motion for Summary Judgment Seeking 

Declaratory Ruling and Plaintiffs Supplement thereto, as well as 

Defendant’s Response and First Amended Response, and any 

supplements thereto, which included Defendant’s counterclaims, and 

hearing the oral arguments by counsel, the Court is of the opinion that 

Plaintiffs Motion should be GRANTED and Defendant’s claims and

counterclaims should be DENIED. It is therefore, 

ORDERED, ADJUDGED and DECREED that Plaintiff, CASTANO 

ENTERPRISES, LLC D/B/A CUBE INVESTMENTS’ Motion for 

Summary Judgment Seeking Declaratory Ruling and specific 

performance pursuant to the July 9, 2018 contract, and the subsequent 

July 11, 2018 addition to said contradict [sic] entered into between 

EVA CASAS and CASTANO ENTERPRISES, LLC D/B/A CUBE 

INVESTMENTS is GRANTED in its entirety, and that:

. . . .

7. By ruling in favor of CASTANO ENTERPRISES, LLC D/B/A 

CUBE INVESTMENTS, the claims and counterclaims of EVA 

CASAS are DENIED and DISMISSED with prejudice.
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8. This is intended to be a Final Judgment, subject to appeal.

The trial court’s September 21, 2022 judgment clearly and unequivocally 

states that it finally disposes of all claims and is a final judgment. See Lehman, 39 

S.W.3d at 204 (stating judgment is final if it clearly and unequivocally states that it 

finally disposes of all claims and parties, even if it does not actually do so). We 

overrule Casas’s eighth issue.

Appointment of Receiver

In her first issue, Casas contends that Cube Investments failed to pay a 

judgment in the amount of $17,800.54 rendered against it in another case, and that 

the county court appointed a receiver in the case.2 Casas argues that the receiver, 

who she contends stands in the place of Cube Investments in this appeal, is only able 

to disburse Cube Investments’s assets to creditors, and not perform the complex 

investment construction project that was the subject of the July 9, 2018 negotiated 

agreement. Thus, she reasons, the trial court’s judgment ordering specific 

performance of the parties’ agreement is impossible to perform. Casas concludes, 

with no citation to legal authority, that “the judgment needs to go away[] by means 

2 On October 3, 2019, Harris County Court at Law No. 4 entered a judgment against 

defendant Castano Enterprises, LLC in favor of the plaintiff in KGL Property, LLC 

v. Juan David Castano, et al., No. 1141219, County Court at Law No. 4, Harris 

County, Texas. After the judgment went unpaid, KGL Property, LLC filed an 

application for turnover of judgment and appointment of turnover receiver. On May 

8, 2020, the county court granted the application and appointed Seth Kretzer as 

receiver in the case.
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of a reverse and render judgment for Appellant, as the Appellee’s company, which 

is now in receivership, cannot carry out the contract for which specific performance 

was granted.”

The suit that was filed against Cube Investments in county court and for which 

a receiver was appointed over Cube Investments’s non-exempt property is distinct 

from, and wholly unrelated to, the suit that Cube Investments filed against Casas that 

is the subject of this appeal. In its September 21, 2022 final judgment, the trial court 

granted Cube Investments’s request for specific performance of the July 9, 2018 

agreement and ordered that “[w]ithin 45 days of the execution of this Order, EVA 

CASAS shall execute a Warranty Deed transferring 1709 Gano Street, Houston, 

Texas 77009 to CASTANO ENTERPRISES, LLC D/B/A/ CUBE 

INVESTMENTS[.]” The appointment of a receiver in an unrelated lawsuit does not 

alter the trial court’s directive in this case that Casas transfer 1709 Gano Street to 

Cube Investments via warranty deed.

We overrule Casas’ first issue.

Specific Performance

In her second, third, fourth, and fifth issues, Casas challenges the trial court’s 

summary judgment order granting a declaratory ruling that the parties’ July 9 and 

11, 2018 agreements were valid, enforceable contracts and ordering specific 

performance of the contracts.
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A. Standard of Review

We review a trial court’s order granting summary judgment de novo. 

Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We take as true all 

evidence favorable to the nonmovant and indulge every reasonable inference and 

resolve any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 

S.W.3d 656, 661 (Tex. 2005) (citing Provident Life & Accident Ins. Co. v. Knott, 

128 S.W.3d 211, 215 (Tex. 2003)). When a trial court grants summary judgment 

without specifying the grounds for its ruling, we must uphold the trial court’s 

judgment if any one of the theories advanced in the motion for summary judgment 

is meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—

Houston [1st Dist.] 2005, pet. denied).

In a traditional motion for summary judgment, the movant bears the burden 

to establish that no genuine issue of material fact exists and the trial court should 

grant judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v. 

Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). The movant 

must negate at least one essential element of each of the plaintiff’s causes of action 

or establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 

941 S.W.2d 910, 911 (Tex. 1997). A genuine issue of material fact exists if the 

nonmovant produces more than a scintilla of evidence establishing the existence of 

the challenged elements. Beverick, 186 S.W.3d at 149. More than a scintilla of 
15

evidence exists when the evidence “rises to a level that would enable reasonable and 

fair-minded people to differ in their conclusions.” Id. (quoting Burroughs Wellcome 

Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)).

B. Applicable Law

Specific performance is an equitable remedy that may be awarded upon a 

showing of breach of contract. Desai v. Good Hope Missionary Baptist Church of 

Hous., No. 01-19-00420-CV, 2021 WL 1414282, at *6 (Tex. App.—Houston [1st 

Dist.] Apr. 15, 2021, pet. denied) (mem. op.) (citing Ifiesimama v. Haile, 522 S.W.3d 

675, 685 (Tex. App.—Houston [1st Dist.] 2017, pet. denied)). Breach of contract 

requires pleading and proof that (1) a valid contract exists; (2) the plaintiff 

performed, or tendered performance as contractually required; (3) the defendant 

breached the contract by failing to perform or tender performance as contractually 

required; and (4) the plaintiff sustained damages due to the breach. Pathfinder Oil

& Gas, Inc. v. Great W. Drilling, Ltd., 574 S.W.3d 882, 890 (Tex. 2019). Specific

performance is not a separate cause of action, but rather is an equitable remedy used 

as a substitute for monetary damages when damages would not be adequate. 

Ifiesimama, 522 S.W.3d at 685; Stafford v. S. Vanity Magazine, Inc., 231 S.W.3d 

530, 535 (Tex. App.—Dallas 2007, pet. denied).

“[T]o be entitled to specific enforcement of a contract, a party must show that

the contract in question is valid and enforceable.” Jennings v. Jennings, 625 S.W.3d 
16

854, 867 (Tex. App.—San Antonio 2021, pet. denied) (quoting Nguyen v. Woodley, 

273 S.W.3d 891, 898 (Tex. App.—Houston [14th Dist.] 2008, no pet.)). To be 

specifically enforceable, a contract must be complete in its essential and material 

terms, parts and elements; it must be capable of being performed without adding to 

its terms. Id.

C. “Sufficiently Clear and Specific”

In her second issue, Casas argues that the trial court erred in granting specific 

performance to Cube Investments because the July 9, 2018 agreement is not 

sufficiently clear and specific to be enforceable. She argues that although she could 

deed 1709 Gano Street to Cube Investments, the payment is not a single specific sum 

but rather a complex matter that requires Cube Investments to first remodel the 

property and sell it, then pay Casas a guaranteed amount of $70,000, and then pay 

her any amount over $220,000 that Cube Investments would receive as profit. She 

asserts that the agreement does not define “profits” or how they would be calculated, 

nor does it provide a reasonable date for the sale.

The material and essential terms of a contract are those that parties would 

reasonably regard as “vitally important ingredients” of their bargain. Barrow-Shaver

Res. Co. v. Carrizo Oil & Gas, Inc., 590 S.W.3d 471, 481 (Tex. 2019) (quoting 

Fischer v. CTMI, L.L.C., 479 S.W.3d 231, 237 (Tex. 2016)); Jetall Cos., Inc. v. 

Jefferson Smith, L.L.C., No. 01-20-00461-CV, 2022 WL 2347922, at *4 (Tex. 
17

App.—Houston [1st Dist.] June 30, 2022, pet. denied) (mem. op.). Non-essential 

terms, by contrast, need not be addressed with the same certainty and definiteness 

for a contract to be enforceable. Fischer, 479 S.W.3d at 237; Jetall Cos., 2022 WL 

2347922, at *4. While a court may not pull the terms of a contract from thin air, a 

court may grant specific performance when the contract is capable of performance 

without adding terms. See Hubler v. Oshman, 700 S.W.2d 694, 699 (Tex. App.—

Corpus Christi 1985, no writ). The Texas Supreme Court has repeatedly stated that 

the material terms of a contract are to be determined on a case-by-case basis, and 

each contract should be considered separately to determine its material terms. E.g.,

Barrow-Shaver, 590 S.W.3d at 479; Fischer, 479 S.W.3d at 237.

Here, the July 9, 2018 agreement set forth the parties’ mutual promises and 

obligations as follows:

In exchange for releasing his claims for breach of the Joint Venture as 

to the combined properties as a whole, including his claims for lost 

profits, [Castano] proposes the following:

• Cube will agree to allow Casas to sell 1707 Gano Street to the current 

buyers;

• Upon the sale, Casas will pay off all debts, liens, homeowners dues, 

taxes, and any other burdens which may exist on 1709 Gano Street, and 

transfer the property to Cube;

• Within 30 days of transferring 1709 Gano Street to Cube, and 

confirmation that the lien, taxes, and any other encumbrances have been 

paid off, which shall be completed within 30 days of closing the sale on 

1707 Gano Street, Cube will contact the architect to begin preparing the 

plans and other required documentation to submit to the City for 
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approval and permits. Within 60 days of receiving approval, including 

permits, from the City, Cube will begin remodeling efforts to which it 

is expected that it will take 150 days to complete the repairs (subject to 

rain days, delays by the City, and/or other unforeseen events or issues 

with the home, to which Cube will utilize due diligence to resolve);

• Cube Investments will then remodel 1709 Gano Street, at its cost, in an 

effort to bring the house up to date and sell at the market rate;

• After closing, of which Cube will pay all required closing costs, Cube 

will guarantee payment to Eva Casas in the amount of $70,000; and

• In the event Cube is able to recover $220,000 in net profit after 

deducting all expenses and costs incurred for not only the remodeling 

process, but also for maintaining and/or operating the house and 

property (such as any required taxes, electricity or other similar costs), 

Cube will agree to tender any remaining amounts above $220,000 to

Eva Casas within 15 days of closing on the house. In addition, Cube 

will agree to make available its costs, expenses, and other amounts 

supporting all deductions taken from the overall project.

Casas contends that the agreement is too vague and indefinite to perform 

because it does not define “profits” and how they would be calculated or provide a 

date for the final sale of 1709 Gano Street. She further argues that because there is 

no sales price, the court would have to guess at the “fair market value” since that 

varies over time.

When a contract leaves a term undefined, we presume that the parties intended 

its plain, generally accepted meaning. Epps v. Fowler, 351 S.W.3d 862, 866 (Tex. 

2011); Intercont’l Grp. P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 653 

(Tex. 2009). We may also look to the entire agreement to give each part meaning. 

Piranha Partners v. Neuhoff, 596 S.W.3d 740, 747 (Tex. 2020). “We consult 
19

dictionaries to discern the natural meaning of a common-usage term not defined by 

contract, statute, or regulation. Sunstate Equip. Co., LLC v. Hegar, 601 S.W.3d 685, 

697 (Tex. 2020) (quoting Epps, 351 S.W.3d at 866).

A “profit” is defined as “the excess of revenues over expenditures in a

business transaction.” BLACK’S LAW DICTIONARY (11th ed. 2019). In accordance

with this definition, the parties’ agreement provides that in the event Cube

Investments is able to recover $220,000 in net profits—which the contract specifies 

is the amount remaining “after deducting all expenses and costs incurred for not only 

the remodeling process, but also for maintaining and/or operating the house and 

property (such as any required taxes, electricity or other similar costs)”—it will pay 

any amount above $220,000 to Casas within fifteen days of closing on the house. 

The term “profit” is sufficiently clear and definite.

Casas also asserts that the contract is not sufficiently specific, and therefore 

not capable of being enforced by specific performance, because it does not specify 

a final sale date or sales price for 1709 Gano Street. This argument is unavailing. 

Unlike an agreement for the sale of real estate for which a closing date and sales

price are generally considered material terms, see Rolfe v. King, No. 05-03-00357-

CV, 2004 WL 784626, at *2 (Tex. App.—Dallas Mar. 29, 2004, no pet.) (mem. op.), 

this is not a contract for the sale of real property but rather an agreement between

the parties under which Cube Investments agreed to release any claims it had against
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Casas for her breach of the JVA in exchange for Casas’s agreement to transfer 1709

Gano Street to Cube Investments. A contract is legally binding only if its terms are 

sufficiently definite to enable a court to understand the parties’ obligations. T.O.

Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992). Here, the 

sale date and price are not necessary to define the nature and extent of the parties’

obligations as set forth under the negotiated agreement. See Gannaway ex rel. Est.

of Gannaway v. Pena, 13-99-426-CV, 2002 WL 441993, at *7–8 (Tex. App.—

Corpus Christi Edinburg Mar. 21, 2002, no pet.) (concluding that although writings 

between administrator and purchaser of late owner’s real property did not set forth 

date of closing, date of possession, type of deed, and who would be responsible for 

payment of taxes, letters were clear and definite regarding agreement between 

parties and missing terms were not necessary to define nature and extent of parties’ 

obligations and thus trial court did not err in granting specific performance).

We overrule Casas’s second issue.

D. “Ready, Willing, and Able Buyer”

In her third issue, Casas contendsthat the trial court erred in granting summary 

judgment on Cube Investments’s request for specific performance because a material 

issue of fact issue exists regarding whether Cube Investments was a “ready, willing, 

and able buyer.” Citing DiGiuseppe v. Lawler, 269 S.W.3d 588 (Tex. 2008), Casas 
21

argues that proof that the buyer is “ready, willing and able” is essential to obtain 

specific performance in a real estate sales contract case. Id. at 593. 

Casas’s argument and her reliance on DiGiuseppe are misplaced. As discussed 

above, and in contrast to DiGiuseppe, the agreement at issue in this appeal does not 

involve a real estate sales contract between the parties. See id. at 598 (concluding 

provision in land sale contract which set forth that one of purchaser’s available 

remedies for breach of contract would be to seek to enforce specific performance did 

not eliminate or waive purchaser’s burden to prove all essential elements under 

common law for obtaining specific performance, including that he was ready, 

willing, and able to perform under contract). Rather, it concerns an agreement under 

which Cube Investments agreed to release any legal claims it had against Casas for

her breach of the JVA in exchange for Casas’s agreement to transfer 1709 Gano

Street to Cube Investments so that Cube Investments could remodel and sell the

home to a third party. Under these circumstances, Cube Investments was not

required to prove that it was a ready, willing, and able buyer.

We overrule Casas’s third issue.

E. Motion for Reconsideration

In her fourth issue, Casas contends that the trial court erred in failing to

consider an affidavit attached to her second motion for reconsideration which she 

asserts contravened Cube Investments’s summary judgment affidavit. She argues 
22

that this newly discovered evidence—filed nearly four months after the trial court 

granted summary judgment—raises a fact question regarding whether Cube 

Investments was a ready, willing, and able buyer and therefore precluded summary 

judgment in its favor.

Casas’s argument is unavailing. As an initial matter, Cube Investments was 

not required to demonstrate that it was a ready, willing, and able buyer for the 

reasons discussed above. Moreover, a trial court that has granted a motion for 

summary judgment “generally has no obligation to consider further motions on the 

issues adjudicated by the summary judgment.” Macy v. Waste Mgmt., Inc., 294 

S.W.3d 638, 651 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (internal 

quotation marks omitted). When a party files a motion for reconsideration or new 

trial after a summary judgment motion has been heard and ruled upon, the trial court 

may ordinarily consider only the record as it existed when it first heard the motion. 

See In re Est. of Mooney, No. 01-18-00096-CV, 2019 WL 3917427, at *7 (Tex. 

App.—Houston [1st Dist.] Aug. 20, 2019, no pet.) (mem. op.) (citing Circle X Land

& Cattle Co., Ltd. v. Mumford Indep. Sch. Dist., 325 S.W.3d 859, 863 (Tex. App.—

Houston [14th Dist.] 2010, pet. denied)). However, a trial court may consider 

evidence submitted with a motion to reconsider provided that the court

“affirmatively indicates” in the record that it accepted or considered the later-filed 

evidence. Circle X Land & Cattle Co., 325 S.W.3d at 863; cf. Stephens v. Dolcefino, 
23

126 S.W.3d 120, 134 (Tex. App. —Houston [1st Dist.] 2003, no pet.) (noting trial 

court affirmatively accepted later-filed tape as summary judgment evidence where 

it stated at hearing it would “include the evidence offered today in the summary 

judgment record” and denied motion for new trial “even taking th[e] [later-filed] 

evidence into the record” (internal quotations and emphasis omitted)).

Here, the trial court did not affirmatively indicate in the record that it accepted 

or considered Casas’s later-filed evidence attached to her second motion for 

reconsideration.3 Because the court did not affirmatively indicate that it accepted or 

considered the later-filed evidence, this Court cannot consider this evidence in our 

determination of whether the trial court erred in granting summary judgment. See 

NMRO Holdings, LLC v. Williams, No. 01-16-00816-CV, 2017 WL 4782793, at *5 

(Tex. App.—Houston [1st Dist.] Oct. 24, 2017, no pet.) (mem. op.) (concluding that 

court could not consider exhibits attached to appellant’s motion for new trial and 

reconsideration on appeal because trial court did not affirmatively indicate that it 

had accepted or considered later-filed evidence).

We overrule Casas’s fourth issue.

3 The record also reflects that Casas did not set her second motion for reconsideration 

for hearing. Casas acknowledged as much in her motion, stating, “This case has not 

been set for hearing—the new evidence affidavit took time & a private investigator 

to obtain. It is a bombshell but it is only now available shortly before the appeals 

deadline. There is no longer time for a 10 day motion.”
24

F. “Inequitable and Unfair” and “Unclean Hands Doctrine” 

In her fifth issue, Casas contends that the trial court erred in granting summary 

judgment because specific performance is not available where the contract in 

question was inequitable and unfair. Casas contends that she is not accustomed to 

handling business dealings and Castano talked her into this investment deal by 

questionable methods. In her sixth issue, Casas contends that Cube Investments is 

not entitled to specific performance because it lacked “clean hands” when Castano 

sought to defraud her through misleading representations in an attempt “to gull her 

into selling her homes to an LLC he was involved in for a knockdown price.”

Our appellate rules require an appellant, among other things, to cite and apply 

law that is applicable to the complaint being made along with appropriate record 

references. TEX. R. APP. P. 38.1(g) & (i). We are not responsible for searching the 

record for facts that may be favorable to a party’s position, see Fredonia State Bank 

v. General American Life Insurance Co., 881 S.W.2d 279, 283–84 (Tex. 1994), or 

doing the legal research that might support a party’s contentions, see Walker v. 

Eubanks, 667 S.W.3d 402, 407 (Tex. App.—Houston [1st Dist.] 2022, no pet.). 

Although Casas’s brief includes a recitation of the facts she believes are relevant on 

appeal, it does not include any record references or explain how the legal authorities 

to which she generally cites apply to her complaints. For an appellate court to be 

able to address an issue, the appealing party must argue the issue’s substance with 
25

legal and record support. St. John Missionary Baptist Church v. Flakes, 595 S.W.3d 

211, 214 (Tex. 2020); see Borisov v. Keels, No. 01-15-00522-CV, 2016 WL 

3022603, at *1–2 (Tex. App.—Houston [1st Dist.] May 26, 2016, pet. denied) (mem. 

op.) (concluding appellant waived issues on appeal where brief did not include 

citations to either clerk’s record or any legal authorities). Having failed to do so, 

Casas has waived these complaints for appellate review.

We overrule her fifth and sixth issues.

G. “Illegal Securities Transaction”

In her seventh issue, Casas contends that Cube Investments was engaged in 

illegally selling an investor contract, i.e., the JVA, which she asserts violates Texas 

Blue Sky Laws and federal securities laws. She argues that this illegal securities 

transaction is therefore void, must be rescinded, and cannot be enforced through 

specific performance.

Casas has failed to adequately brief this issue. Again, although she includes a 

lengthy factual recitation and cites generally to Texas’s State Securities Board 

website, Casas provides no record references to support her argument. We are not 

responsible for searching the record for facts that may support Casas’s position. See 

Flakes, 595 S.W.3d at 214 (stating appellant must argue issue’s substance with legal 

and record support to enable appellate court to address issue); Borisov, 2016 WL 

3022603, at *1–2 (finding waiver where appellant’s brief failed to include citations 
26

to clerk’s record or legal authorities). However, even absent waiver, Casas’s 

argument that the JVA is an illegal transaction that cannot be enforced through 

specific performance misses the mark. Cube Investments did not sue Casas seeking 

specific performance of the JVA. Rather, it is Casas’s breach of the July 9, 2018 

negotiated agreement—that is, her refusal to transfer 1709 Gano Street to Cube 

Investments in exchange for its release of any legal claims against her—that is the 

subject of its suit. The trial court did not grant specific performance of the JVA to 

Cube Investments. Rather, in its order, the trial court stated, “Cube Investments’s 

“Motion for Summary Judgment Seeking Declaratory Ruling and specific 

performance pursuant to the July 9, 2018 contract, and the subsequent July 11, 2018

addition to said contradict [sic] entered into between EVA CASAS and CASTANO 

ENTERPRISES, LLC D/B/A CUBE INVESTMENTS is GRANTED in its 

entirety[.]” The trial court did not err in granting summary judgment in favor of Cube 

Investments.

We overrule Casas’s seventh issue.

Conclusion

We affirm the trial court’s judgment.

Amparo Monique Guerra

Justice

Panel consists of Justices Goodman, Rivas-Molloy, and Guerra.