1... See TEX. R. APP. P. 47.4.

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-06-124-CV

ALICE LONGFELLOW, INDEPENDENT APPELLANT

EXECUTRIX OF THE ESTATE OF 

CHARLEY G. MARTIN

V.

RACETRAC PETROLEUM, INC. AND APPELLEES

WAL-MART STORES EAST, INC.

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FROM PROBATE COURT NO. 1 OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Alice Longfellow, independent executrix of the estate of Charley G.

Martin, appeals from the trial court’s amended judgment in favor of RaceTrac
2... We refer to appellant as “the Estate,” except where a distinction

between “Martin” and “Longfellow” is appropriate.

2

Petroleum, Inc., granting RaceTrac specific performance of the parties’ contract

and attorney’s fees. We affirm. 2

I. Background

In May 1998, Martin and RaceTrac signed a “Real Estate Purchase

Contract” (hereinafter sometimes referred to as the RaceTrac contract),

providing for the sale of approximately sixteen acres of Martin’s land in Grand

Prairie for $1 million. Longfellow initially acted as Martin’s agent under a power

of attorney and, later, as executrix of his estate. Following execution of the

contract, RaceTrac paid $10,000.00 earnest money as required under the

contract. RaceTrac also expended over $36,000.00 on engineering and

environmental work on the property, retained a title company, and obtained a

survey. 

Under the contract, RaceTrac had a ninety-day “permit period” after

receipt of the survey to obtain “all governmental permits, licenses, variances,

and approvals” necessary for it to operate a store on the contract property. If

RaceTrac was unable to obtain the required permits within ninety days, the

contract allowed it, “by giving notice to Seller, [to] extend the Permit Period for

an additional sixty (60) days.” In the event RaceTrac extended the permit
3... Martin also signed the contract. 

3

period and was able to obtain the permits, the contract provided that “[c]losing

shall be held within ten (10) days following the end of the Permit Period.” 

The contract also contained a gas restriction that provided as follows: 

Seller will execute . . . at or prior to Closing, a restriction in

recordable form which will run with the land prohibiting . . . a retail

outlet for motor fuels or a convenience store . . . on any land now

owned or controlled by Seller or Seller’s affiliates within one mile

of any boundary of the Contract Property. Should Seller or any of

Seller’s affiliates sell or lease prior to Closing, all or any part of

such restricted property, such sale or lease shall be subject to

Purchaser’s rights under this Contract and Seller shall ensure that

any lease or instrument of conveyance of such property shall

specifically so state. 

RaceTrac’s general counsel, Claude Czaja, testified that the gas restriction was

very important to RaceTrac and is common in the industry. Longfellow

admitted that she did not read the contract but signed it on the advice of her

attorneys, and she claimed that she was initially unaware of the gas restriction.3

RaceTrac received a survey of the contract property on September 1,

1998, and notified Martin and Longfellow in writing that the permit period

would run through November 30, 1998. RaceTrac then began the process of

applying for a property plat from the City of Grand Prairie. On November 20,

1998, RaceTrac notified Longfellow in writing that it was exercising its right to

extend the permit period for an additional sixty days, from November 30, 1998,
4... If there had been no estate tax issue, the title company would have

withheld funds from the purchase price to pay the mechanic’s lien. But, with

the estate tax problem, the title company required the entire $1 million

purchase price to be escrowed and the Estate to “bring that $140,000 to the

closing” to cover the mechanic’s lien. 

4

through January 29, 1999, and Longfellow did not object. Pursuant to the

contract, therefore, “so long as RaceTrac was able to obtain the required

permits,” closing was to be within ten days after the permit period expired, or

by February 8, 1999. 

Czaja testified that RaceTrac learned of Martin’s November 20, 1998

death the week before closing was to occur. In preparation for closing,

RaceTrac requested an updated title commitment and asked the title company

whether Longfellow could sign the closing documents in light of Martin’s death.

On February 3, 1999, the title company indicated that taxes might be due

because of the size of Martin’s estate, and RaceTrac could either close the deal

and have the proceeds held in escrow until the title company received the

Estate’s inventory and appraisement or, if the title company received the

documents, it could pay the taxes. There was also a mechanic’s lien on the

property, and the Estate would have to resolve both problems at closing. The

4

following day, February 4, 1999, RaceTrac notified Longfellow and her
5... The contract required the Estate to deliver “good and marketable fee

simple title . . . free and clear of all liens [and] encumbrances” at closing. 

6... Longfellow later testified, however, that the Estate had $100,000.00

or more at the time of Martin’s death. 

7... Under the terms of the contract, the Estate had fifteen days from

receipt of RaceTrac’s written notice to cure the title objections. If the Estate

failed to satisfy the title objections within that time, one remedy available to

RaceTrac was to extend the time for closing. 

5

attorneys of the two “matters affecting title” that the Estate needed to

address.5

On February 5, 1999, Longfellow’s then-attorney Gilbert Smith told Czaja

“in no uncertain terms” that the Estate was not going to come to the closing

table. Specifically, Smith said that the Estate did not have the inventory and

appraisement in order, that those documents could take a year to complete, and

that the Estate did not have $140,000.00 to pay off the mechanic’s lien.6

RaceTrac immediately notified the Estate in writing that it would extend the

time for closing, pursuant to the contract, to allow time to remove the title

objections. RaceTrac’s letter further stated, “Purchaser stands ready to close 7

the transaction upon Seller’s satisfaction of the above-referenced title matters.”

Czaja conceded, however, that RaceTrac never tendered the $1 million

purchase price. 
8... GSW sued Martin for breach of contract in 1997. 

9... Some of the same individuals who formed GSW also ran Blackhawk.

6

Thereafter, in March 1999, the Estate settled a separate lawsuit with

GSW & 20 Partners, Ltd., with whom Martin had contracted to sell 107 acres

of land, including the sixteen acres that are the subject of the RaceTrac

contract. Pursuant to the GSW settlement agreement, Blackhawk Partners I, 8

Ltd., would buy 75 acres of property from the Estate. Blackhawk, in turn, 9

agreed to sell part of the property it was purchasing to Wal-Mart Stores East,

Inc., with closing to be held in May 1999. The land Wal-Mart planned to

purchase was located within approximately one-half mile of the land under

contract with RaceTrac. 

The first time Blackhawk learned of RaceTrac’s gas restriction was

immediately prior to its closing with Wal-Mart. Although Wal-Mart was willing

to purchase part of the property with the gas restriction in place, the covenant

made the property less valuable to Wal-Mart. Accordingly, the parties agreed

that $450,000.00 of Wal-Mart’s purchase price would be placed into an escrow

account pending resolution of the RaceTrac-Estate litigation. 

Meanwhile, continuing to believe that the Estate was unable to close

because it lacked sufficient funds to pay the mechanic’s lien, Czaja contacted
7

a second title insurance company in an effort to facilitate closing. On May 20,

1999, RaceTrac informed the Estate that the second title company offered to

write a title policy that would require it to place only the net proceeds into

escrow. RaceTrac also offered to waive a provision in the contract that

required the Estate to give RaceTrac a legal description of its other property

within one mile of the contract property. The Estate rejected RaceTrac’s offer

on June 7, 1999. 

Thomas Metcalfe, a real estate broker, testified that Longfellow told him

in August 1999 that she was aware of the gas restriction in the RaceTrac

contract, knew that Wal-Mart wanted to sell gas on the property it was buying,

and that if it became an issue she would simply not close on the contract with

RaceTrac. Longfellow denied speaking with Metcalfe and impugned his

“business ethics.” 

On September 27, 1999, Longfellow and her then-attorney Michael

McCue flew to Atlanta for a meeting at RaceTrac’s corporate office. Czaja

testified that Longfellow demanded that RaceTrac remove the gas restriction,

but RaceTrac refused to renegotiate the contract. Longfellow claimed that she

went to the meeting to close on the contract, but RaceTrac refused. The

meeting lasted approximately ten minutes, and at the conclusion of the
8

meeting, McCue handed Czaja a typed letter purporting to terminate the

contract, claiming it was unenforceable. 

Brad Bowen, who was associated with both GSW and Blackhawk,

testified that Longfellow “sequestered” Martin, preventing him from outside

contact. Further, Bowen did not trust Longfellow because she was “evasive”

when asked for proof of her power of attorney. Bowen described Longfellow

as having “irrational” responses and being “a loose cannon,” “very

unreasonable,” “volatile,” “difficult to work with”, and “impossible to deal

with.” During her own testimony, Longfellow claimed that she was the victim

of a “conspiracy to do land fraud” perpetrated by Martin’s longtime accountant,

his longtime attorney, Bowen, RaceTrac, and several of Longfellow’s previous

attorneys, and she contended that she had been physically threatened. 

In 2001, RaceTrac sued the Estate, alleging breach of the contract and

seeking specific performance, damages, and attorney’s fees. The Estate

counterclaimed, seeking a declaratory judgment that the contract was

unenforceable and asserting slander of title, tortious interference with contract,

and an action to quiet title. 

In 2004, the Estate joined Wal-Mart as a party to the litigation. Shortly

before trial, Wal-Mart entered into separate Rule 11 agreements with both the

Estate and RaceTrac providing that Wal-Mart would not attend the trial and that
10... The jury also answered two additional questions pertaining to

attorney’s fees. 

9

Wal-Mart and the other party to the agreement would not pursue any claims

against the other. Further, Wal-Mart and the Estate agreed that if RaceTrac

obtained judgment for specific performance and the gas restriction remained in

place, then Wal-Mart would be entitled to the $450,000.00 escrowed funds.

Alternatively, if RaceTrac did not obtain judgment for specific performance and

the gas restriction was lifted, the escrowed funds would be paid to the Estate.

Following a three-day trial, the jury answered four special issues favorably

to RaceTrac. Thereafter, the trial court rendered an amended final judgment 10

granting RaceTrac specific performance and attorney’s fees. The judgment

additionally provided that the funds in escrow be released to Wal-Mart. 

II. The Estate’s Issues

The Estate raises twenty issues. Issues one through ten require us to

construe the contract and review the sufficiency of the evidence to support

certain jury findings. Issues eleven through sixteen complain of the jury charge.

The remaining four issues challenge the award of attorney’s fees to RaceTrac

and seek recovery of attorney’s fees and earnest money from RaceTrac and

Wal-Mart.

III. Construction of the RaceTrac Contract
11... Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 423 (Tex.

2000); FPL Energy Upton Wind I, L.P. v. City of Austin ex rel. Elec. Util. Dep’t,

240 S.W.3d 456, 463 (Tex. App.—Amarillo 2007, no pet.).

12... Gulf Ins. Co., 22 S.W.3d at 423; FPL Energy, 240 S.W.3d at 463.

10

We will begin our analysis with the following issues requiring us to

construe the RaceTrac contract:

• RaceTrac is not entitled to specific performance because the option

contract lacks mutuality of remedy; 

• The RaceTrac contract is unenforceable because it lacks mutuality of

obligation;

• The RaceTrac contract is unenforceable because it violates the rule

against perpetuities;

• The option was revocable by the Estate at any time before RaceTrac

exercised the option because RaceTrac never paid independent

consideration for the option; and

• RaceTrac’s demand that the Estate produce its inventory and

appraisement or escrow the sales proceeds was not permitted by the

contract.

A. Rules of Contract Construction

The interpretation of an unambiguous contract is a question of law to be

determined by the court. When a contract is worded in a manner that allows

11

it to be given a certain or definite legal meaning, it is not ambiguous and the

court will construe it as a matter of law. A contract is ambiguous if, after 12

applying the pertinent rules of construction, it is subject to two or more
13... Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d

587, 589 (Tex. 1996); FPL Energy, 240 S.W.3d at 463.

14... MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 652

(Tex. 1999).

15... Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.

1996).

16... DeWitt County Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 101 (Tex.

1999); Marine Creek Partners, Ltd. v. Caldwell, 926 S.W.2d 793, 796 (Tex.

App.—Fort Worth 1996, no writ).

17... Mays v. Pierce, 154 Tex. 487, 494, 281 S.W.2d 79, 82 (1955).

11

reasonable interpretations. In determining whether a contract is ambiguous, 13

the court should examine and consider the entire writing in an effort to

harmonize and give effect to all the provisions of the contract so that none will

be rendered meaningless.14

An unambiguous contract must be enforced as written, examining the

entire document and giving terms their plain, ordinary, and generally accepted

meaning unless the instrument shows that the parties used them in a technical

or different sense. Language is given its regular grammatical meaning unless 15

to do so would defeat the parties’ objective intent as expressed in the written

contract. When we have the choice of construing a contract as valid or as 16

void, we construe it in such a way as to make it valid. We may imply terms 17

or covenants in a contract “sparingly,” only where they were “clearly
18... See Holman v. Meridian Oil, Inc., 988 S.W.2d 802, 807 (Tex.

App.—San Antonio 1999, pet. denied) (holding that a “term or covenant will

not be implied unless it appears from the express terms of the contract that

such term or covenant was clearly contemplated”); Tips v. Hartland Developers,

Inc., 961 S.W.2d 618, 622 (Tex. App.—San Antonio 1998, no pet.) (holding

that, while implied covenants are to be made “sparingly,” they “will be found

where necessary to effectuate the parties’ intentions and purposes in

contracting”).

19... See West v. Brenntag Sw., Inc., 168 S.W.3d 327, 337 (Tex.

App.—Texarkana 2005, pet. denied); ABB Kraftwerke Aktiengesellschaft v.

Brownsville Barge & Crane, Inc., 115 S.W.3d 287, 293 (Tex. App.—Corpus

Christi 2003, pet. denied).

20... N. Natural Gas Co. v. Conoco, Inc., 986 S.W.2d 603, 607 (Tex.

1998); ABB Kraftwerke, 115 S.W.3d at 293.

21... West, 168 S.W.3d at 337; ABB Kraftwerke, 115 S.W.3d at 293.

12

contemplated” or “necessary to effectuate [the] parties’ intentions and

purposes in contracting.”18

B. Consideration

The Estate argues that the RaceTrac option contract is unenforceable and

revocable at will because it lacked consideration. 

As a general rule, a contract must be based on valid consideration, or

mutuality of obligation. Consideration is defined as either a benefit to the 19

promisor or a loss or detriment to the promisee. A contract that lacks 20

consideration lacks mutuality of obligation and is unenforceable. There is a 21
22... Tex. Gas Utils. Co. v. Barrett, 460 S.W.2d 409, 412 (Tex. 1970).

23... The Estate contends that the contract is an option contract.

RaceTrac does not dispute this characterization. We agree that it is an option

contract. See Cadle Co. v. Harvey, 46 S.W.3d 282, 286 (Tex. App.—Fort

Worth 2001, pet. denied) (holding that the test for determining whether a

contract is an option contract or a contract for the sale of real estate is whether

the seller must accept a stipulated sum in full settlement of the buyer’s liability

for default); Tabor v. Ragle, 526 S.W.2d 670, 676 (Tex. Civ. App.—Fort Worth

1975, writ ref’d n.r.e.) (same). The contract provides, “In the event the sale

of the Contract Property is not consummated . . . due to [RaceTrac’s] default,

[Martin] shall be entitled to retain the Earnest Money as full liquidated damages

for such default and [RaceTrac] shall be relieved from all further liability . . . .”

24... Hott v. Pearcy/Christon, Inc., 663 S.W.2d 851, 853 (Tex.

App.—Dallas 1983, writ ref’d n.r.e.).

25... Id.

26... Culbertson v. Brodsky, 788 S.W.2d 156, 157 (Tex. App.—Fort Worth

1990, writ denied); Hott, 663 S.W.2d at 853.

13

presumption that a written contract is supported by consideration, and we

construe a contract in favor of mutuality of obligation.22

An option contract has two components: (1) the underlying contract 23

which is not binding until accepted; and (2) the covenant to hold open to the

optionee the opportunity to accept. The option agreement component states 24

the terms upon which the seller is willing to sell his land, if the optionee elects

to accept within the agreed time. Both the option and the underlying contract 25

must be supported by consideration. If no consideration is paid, the option 26
27... See Hott, 663 S.W.2d at 853–54 (holding that the effect of limiting

liability in a contract to purchase land results in an option to purchase,

revocable at will of seller, unless and until independent consideration is paid).

28... Id. at 854.

29... See Smith v. Hues, 540 S.W.2d 485, 490 (Tex. Civ. App.—Houston

[14th Dist.] 1976, writ ref’d n.r.e.) (holding that option contract was not

unenforceable because it lacked mutuality of obligation); Colligan v. Smith, 366

S.W.2d 816, 818–20 (Tex. Civ. App.—Fort Worth 1963, writ ref’d n.r.e.)

(holding that an option to purchase land is unilateral in nature, and its validity

is not dependent upon mutuality of obligation). 

30... See Hott, 663 S.W.2d at 853–54 (explaining that if independent

consideration is paid for an option, it becomes irrevocable, and “[w]hen the

optionee gives notice or otherwise complies with the terms and conditions of

the option—regardless of the existence of consideration for the option—a

bilateral executory contract is formed”); Hues, 540 S.W.2d at 490 (holding that

if the option is properly accepted, the optionor is bound). 

14

is revocable during its term until exercised. Once consideration passes, the 27

option becomes irrevocable.28

Option contracts are different from other contracts in that an option

contract lacks mutuality of obligation at its inception. In a contract where the 29

buyer’s liability is limited to the forfeiture of earnest money, mutuality of

obligation is created when independent consideration is paid or when the

optionee exercises performance.30

RaceTrac exercised performance in February 1999 by notifying the Estate

that it intended to close on February 8, 1999, the date contemplated by the

contract, and by making appropriate preparations for closing. After the Estate
31... See Hott, 663 S.W.2d at 853–54; Hues, 540 S.W.2d at 490. 

15

refused to close, RaceTrac extended the time for closing, as it was permitted

to do under the contract, to allow the Estate more time to cure the title

problems. Once RaceTrac exercised its option through these actions, mutuality

of obligation was created. For these reasons, we hold that the RaceTrac 31

contract was supported by consideration. 

C. Specific Performance and Mutuality of Remedy

The Estate next argues that RaceTrac was not entitled to specific

performance because the contract lacked mutuality of remedy. The Estate

contends that the contract did not permit the Estate to seek specific

performance, and, therefore, RaceTrac cannot be entitled to specific

performance either. 

The RaceTrac contract provides, “[The Estate] and [RaceTrac]

acknowledge that it is impossible to measure the damages which would accrue

to RaceTrac by reason of [the Estate’s] default hereunder. Accordingly,

[RaceTrac] may enforce this contract and [the Estate’s] obligations hereunder

in an action seeking specific performance.” 

The general rule in Texas is that if one party breaches a contract for the

sale of real estate, the other party can enforce the contract through specific
32... Tabor, 526 S.W.2d at 675–76.

33... Burr v. Greenland, 356 S.W.2d 370, 375 (Tex. Civ. App.—El Paso

1962, writ ref’d n.r.e.); Smith v. Nash, 571 S.W.2d 372, 375 (Tex. Civ.

App.— Texarkana 1978, no writ).

34... Adams v. Abbott, 151 Tex. 601, 605–06, 254 S.W.2d 78, 80–81

(Tex. 1952); Langley v. Norris, 141 Tex. 405, 413, 173 S.W.2d 454, 458–59

(Tex. 1943); Nash, 571 S.W.2d at 375.

35... Adams, 151 Tex. at 605, 254 S.W.2d at 80; Hues, 540 S.W.2d at

490.

36... See Adams, 151 Tex. at 605–06, 254 S.W.2d at 80–81. 

16

performance. Specific performance will be granted only in cases where there 32

is a mutuality of remedy. The absence of mutuality of remedy when a 33

contract is executed, however, does not make the contract unenforceable so

long as mutuality of remedy is subsequently supplied. Mutuality of remedy 34

may be subsequently supplied by performance of the party who seeks specific

performance. 

35

When RaceTrac performed under the contract and stood ready, willing,

and able to close, mutuality of remedy was supplied, and the Estate could have

enforced the contract against RaceTrac. We, therefore, hold that specific 36

performance was a proper remedy in this case.
37... In its live pleading at the time of trial, the Estate pleaded fourteen

different affirmative defenses, but it did not plead the rule against perpetuities

or illegality. See TEX. R. APP. P. 33.1(a); Bushell v. Dean, 803 S.W.2d 711,

712 (Tex. 1991) (op. on reh’g).

38... See TEX. R. CIV. P. 67; Bell v. Meeks, 725 S.W.2d 179, 179–80 (Tex.

1987); Bowles v. Reed, 913 S.W.2d 652, 659–60 (Tex. App.—Waco 1995,

writ denied). 

17

D. Rule Against Perpetuities

The Estate argues that the option contract is unenforceable because it

violated the rule against perpetuities. The Estate has waived this complaint,

however, because it was not raised in the trial court.

37

The Estate, nevertheless, contends that Czaja’s testimony established

that the contract was illegal and, therefore, the rule against perpetuities issue

was tried by consent. We disagree. On cross-examination, Czaja disputed the

Estate’s attorney’s suggestion that the contract could “stay alive forever”; he

contended that if a party did nothing it would eventually be in default; and he

noted that the contract specifically provided that “time is of the essence.” This

testimony alone was insufficient to bring the rule against perpetuities before the

trial court by the active assistance of both parties.38

The Estate further contends that the contract is illegal on its face because

a contractual provision allowed RaceTrac to extend indefinitely the time for

closing. The provision in question provides as follows:
39... See Mattern v. Herzog, 367 S.W.2d 312, 314 (Tex. 1963).

40... KMI Cont’l Offshore Prod. Co. v. ACF Petroleum Co., 746 S.W.2d

238, 243 (Tex. App.—Houston [1st Dist.] 1987, writ denied); Nash, 571

S.W.2d at 375.

18

If [RaceTrac] has objections to the title or survey of the Contract

Property, a written statement of such objections shall be furnished

to [the Estate], in which event [the Estate] shall have fifteen (15)

days after receipt of said statement to satisfy all objections and, if

[the Estate] fails to satisfy such objections within that time then:

[RaceTrac] may . . . extend the time for Closing to allow [the

Estate] or [RaceTrac] additional time to remove such

objections . . . . (emphasis supplied)

We construe a contract in a way that renders it enforceable rather than

invalid even where the rule against perpetuities is involved. In the absence of

39

a provision of time for performance, the law implies that a reasonable time was

intended. 

40

We hold that the term “additional time” in the RaceTrac contract was

intended by the parties to provide a reasonable time for performance.

Therefore, the contract was not illegal on its face.

E. Inventory and Appraisement

The Estate next contends that RaceTrac’s requirements that the Estate

provide an inventory and appraisement or escrow the sales proceeds were not

permitted by the contract. Additionally, it argues that the contract only

permitted RaceTrac to provide additional title or survey objections based on
19

updated title commitments or surveys, and RaceTrac failed to prove that the

additional requirements resulted from an updated title commitment or survey.

The RaceTrac contract states,

At closing . . . [the Estate] shall execute and deliver to [RaceTrac]

a General Warranty Deed, satisfactory in form and substance to

[RaceTrac], conveying good and marketable fee simple title to the

Contract Property, free and clear of all liens, encumbrances,

easements and restrictions of every nature and description. . . .

[The Estate] shall execute and deliver with the deed such other

instruments as may be required by the title insurance company to

issue its policy of title insurance and any and all other documents

deemed reasonably necessary by [RaceTrac] to consummate the

transactions contemplated herein. 

The plain language of the contract required the Estate to provide at

closing “good and marketable title” and to deliver any instruments required by

the title insurance company in order to issue a title insurance policy. Therefore,

the requirements that the Estate provide an inventory and appraisement as

required by the title insurance company were authorized by the contract. The

evidence is undisputed that the title insurance company required the Estate’s

inventory and appraisement, or to hold the proceeds in escrow, in order to issue

a title insurance policy. Thus, we hold that the RaceTrac contract allowed

RaceTrac to demand that the Estate produce these documents, or allow the

proceeds to be escrowed in order to close.
20

IV. Issues Challenging the Evidence Supporting the Jury Findings

The jury answered the following four questions:

SPECIAL QUESTION # 1:

On or after February 8, 1999, did Longfellow fail

to comply with the Contract with Racetrac?

Answer “Yes” or “No” Yes

If you answered Special Question #1 “Yes” then

answer Special Question #2, otherwise do not answer

Special Question #2.

SPECIAL QUESTION # 2:

Was Longfellow’s failure to comply excused?

Answer “Yes” or “No” No

SPECIAL QUESTION # 3:

Was Racetrac ready, willing and able to perform

its obligations under the Contract on: (Answer “Yes” or

“No” for both):

A. February 8, 1999 Yes

B. February 9, 1999 through 

 September 27, 1999 Yes

SPECIAL QUESTION # 4:

Did Racetrac fail to comply with the Contract?

Answer “Yes” or “No” No 
41... Although the Estate does not designate this argument as a challenge

to the sufficiency of the evidence, we will review it under the legal and factual

sufficiency standards. See Pool v. Ford Motor Co., 715 S.W.2d 629, 633 (Tex.

1986) (op. on reh’g) (liberally construing issue in party’s brief); Holley v. Watts,

629 S.W.2d 694, 696 (Tex. 1982) (directing us to consider both the wording

of party’s points and argument in order “to determine as best we can” issue

party intended to raise). 

42... Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.

1998), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, "No Evidence"

and "Insufficient Evidence" Points of Error, 38 TEX. L. REV. 361, 362–63

(1960).

21

A. RaceTrac’s Performance

The Estate argues that the jury’s answers to the first three questions

should be disregarded because RaceTrac failed to tender performance or

payment. According to the Estate, the contract expired because RaceTrac

failed to timely exercise its contractual rights. Alternatively, the Estate argues

that the contract was revoked and terminated before RaceTrac purportedly

exercised its option rights. 

We may sustain a challenge to a jury finding based on legal sufficiency41

only when (1) the record discloses a complete absence of evidence of a vital

fact; (2) the court is barred by rules of law or of evidence from giving weight

to the only evidence offered to prove a vital fact; (3) the evidence offered to

prove a vital fact is no more than a mere scintilla; or (4) the evidence

establishes conclusively the opposite of a vital fact. In determining whether 42
43... City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).

44... Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

45... Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex.), cert.

denied, 525 U.S. 1017 (1998)

46... See McMillan v. Dooley, 144 S.W.3d 159, 178 (Tex. App.—Eastland

2004, pet. denied); Tex. State Optical, Inc. v. Wiggins, Inc., 882 S.W.2d 8,

10–11 (Tex. App.—Houston [1st Dist.] 1994, no writ).

22

there is legally sufficient evidence to support the finding under review, we must

consider evidence favorable to the finding if a reasonable fact-finder could and

disregard evidence contrary to the finding unless a reasonable fact-finder could

not.43

An assertion that the evidence is factually insufficient to support a fact

finding means that the evidence supporting the finding is so weak or the

evidence to the contrary is so overwhelming that the answer should be set

aside and a new trial ordered. We are required to consider all of the evidence 44

in the case in making this determination, not just the evidence that supports the

finding. 

45

The exercise of an option to purchase must be positive, unconditional,

and unequivocal, and is equivalent to the acceptance of an offer. When one 46

party refuses to perform its obligations under a contract, however, the other

party need not tender performance before suing to enforce the contract through
47... Chapman v. Olbrich, 217 S.W.3d 482, 491 (Tex. App.—Houston

[14th Dist.] 2006, no pet.); Krayem v. USRP (PAC), L.P., 194 S.W.3d 91, 94

(Tex. App.—Dallas 2006, pet. denied); 17090 Parkway, Ltd. v. McDavid, 80

S.W.3d 252, 256 (Tex. App.—Dallas 2002, pet. denied).

48... Langley v. Norris, 167 S.W.2d 603, 609–10 (Tex. Civ.

App.—Eastland 1942), aff’d, 141 Tex. 405, 173 S.W.2d 454 (1943).

23

specific performance. One of our sister courts has held, for example, that 47

where a buyer of land performed all that the contract required of him except

actually tender the purchase price, and was financially able to pay, but the

seller refused to convey the land, the buyer was entitled to specific

performance.48

The jury’s findings that Longfellow failed to comply with the contract on

or after February 8, 1999; that Longfellow’s failure to comply was not excused;

and that RaceTrac was ready, willing, and able to perform its obligations under

the contract on February 8, 1999 through September 27, 1999, were

supported by the following evidence: 

Czaja testified that RaceTrac made appropriate preparations for closing

in the week prior to February 8, 1999; that RaceTrac notified the Estate of its

intention to close and the title objections revealed by the title company; that the

Estate refused to close; that RaceTrac properly extended the time for closing

to allow the Estate more time to cure the title problems; and that RaceTrac
24

continued to try to close after February. The parties’ written correspondence

in the record fully corroborates Czaja’s testimony. 

Longfellow, on the other hand, asserted that she wanted to close the

contract but RaceTrac refused, and she claimed that she was the victim of a

conspiracy. The Estate also offered the testimony of RaceTrac’s vice president

of real estate, who indicated that RaceTrac did not intend to develop or market

certain extra acreage included in the deal with the Estate. Further, the Estate

called Chuck Hartley, Longfellow’s employee who also attended the meeting in

Atlanta. Hartley testified that RaceTrac had seven or eight people at the

meeting, whereas Longfellow’s party was comprised of only three. Hartley

stated that Longfellow “wanted the deal to go through” but RaceTrac ”kind of

laughed at her.” The Estate also called Czaja, who maintained his position that,

at the meeting in Atlanta, Longfellow tried to renegotiate the contract without

the gas restriction.

Czaja conceded that RaceTrac did not tender the purchase price, but

maintained it had the financial ability to do so. RaceTrac argued in closing that

the resolution of the case turned on whose version of events—Longfellow’s or

Czaja’s—the jury believed. The jury, who is the sole judge of the credibility of
49... See City of Keller, 168 S.W.3d at 819.

50... Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001);

Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).

25

witnesses and may choose to believe one witness over another, evidently

believed Czaja. 

49

Applying the appropriate legal and factual sufficiency standards of review,

we hold that the evidence was sufficient to support the jury’s findings that

Longfellow failed to comply with the contract; that her failure was not excused;

and that RaceTrac was ready, willing, and able to perform its obligations under

the contract.

B. RaceTrac’s Exercise of the Sixty-Day Extension

The Estate argues that there was “no evidence” to support the jury’s

failure to find that RaceTrac did not comply with the RaceTrac contract.

Specifically, the Estate contends that because there is no evidence showing

that RaceTrac was entitled to the contractual sixty-day extension to the permit

period, the contract expired on November 30, 1998, as a matter of law.

When a party attacks the legal sufficiency of an adverse finding on an

issue on which it had the burden of proof, it must demonstrate on appeal that

the evidence establishes, as a matter of law, all vital facts in support of the

issue. In reviewing a “matter of law” challenge, we must first examine the 50
51... Dow Chem. Co., 46 S.W.3d at 241; Sterner, 767 S.W.2d at 690.

52... Dow Chem. Co., 46 S.W.3d at 241; Sterner, 767 S.W.2d at 690.

53... Dow Chem. Co., 46 S.W.3d at 241.

26

record for evidence that supports the finding, while ignoring all evidence to the

contrary. If there is no evidence to support the finding, we then examine the 51

entire record to determine if the contrary proposition is established as a matter

of law. We may sustain the point only if the contrary proposition is 52

conclusively established.53

There is evidence in the record showing that RaceTrac complied with the

terms of the contract in seeking the sixty-day extension. The contract allowed

RaceTrac to extend the permit period upon written notice to Longfellow if

RaceTrac was unable to obtain all required permits within the original ninety-day

permit period, which was to expire on November 30, 1998. On November 13,

1998, the City of Grand Prairie notified RaceTrac that the matter would be

submitted for a hearing before the city’s planning and zoning commission on

December 7, 1998, and indicated that a RaceTrac representative should attend

the meeting. On November 20, 1998, RaceTrac notified the Estate in writing

that it was exercising the extension. The Estate did not object to RaceTrac’s

efforts to extend the permit period. 
54... TEX. R. CIV. P. 278; Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162,

166 (Tex. 2002).

27

We hold that, because there is some evidence that RaceTrac properly

exercised its right to the sixty-day extension under the RaceTrac contract, there

is evidence that supports the jury’s challenged finding, and RaceTrac’s failure

to comply with the RaceTrac contract was not established as a matter of law.

V. Challenges to the Jury Charge

A. Omitted Questions

The Estate argues that the trial court abused its discretion by failing to

submit jury questions asking whether RaceTrac was entitled to the contractual

sixty-day extension; whether RaceTrac properly and finally accepted the

contract and tendered performance, or finally accepted the option before the

Estate terminated the contract; whether the contract was an option contract;

and whether RaceTrac paid independent consideration for the options. 

A party is entitled to a jury question or instruction if the pleadings and

evidence raise an issue. We review a trial court’s decision to submit or refuse 54

a particular question or instruction for an abuse of discretion, recognizing that

whenever possible the trial court should submit a cause upon broad-form
55... TEX. R. CIV. P. 277; In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000);

Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990);

Cimarron Country Prop. Owners Ass’n v. Keen, 117 S.W.3d 509, 511 (Tex.

App.—Beaumont 2003, no pet.); Ryan Mortgage Investors v. Fleming-Wood,

650 S.W.2d 928, 932–33 (Tex. App.—Fort Worth 1983, writ ref’d n.r.e.).

56... See, e.g., TXI Transp. Co. v. Hughes, 224 S.W.3d 870, 902–03

(Tex. App.—Fort Worth 2007, pet. filed); Pitman v. Lightfoot, 937 S.W.2d 496,

519–20 (Tex. App.—San Antonio 1996, writ denied) (citing Island Recreational

Dev. Corp. v. Republic of Tex. Sav. Ass’n, 710 S.W.2d 551 (Tex. 1986)).

57... See TXI Transp. Co., 224 S.W.3d at 902–03; Pitman, 937 S.W.2d

at 519–20.

28

questions. The trial court does not abuse its discretion in refusing to submit 55

questions that are adequately encompassed within broad-form questions it does

submit.56

The question of whether RaceTrac complied with the terms of the

contract was submitted to the jury, and the jury failed to find that RaceTrac did

not comply with the contract. This broad form question encompasses the issue

of whether RaceTrac properly invoked the sixty-day extension. We, therefore,

hold that the trial court did not abuse its discretion by failing to submit a

question asking specifically whether RaceTrac was entitled to the contractual

sixty-day extension.57

Further, the jury found that Longfellow failed to comply with the

RaceTrac contract, that her failure to comply was not excused, and that

RaceTrac stood ready, wiling, and able to perform its obligations from February
58... See TXI Transp. Co., 224 S.W.3d at 902–03; Pitman, 937 S.W.2d

at 519–20. 

59... Brownwood Ross Co. v. Maverick County, 936 S.W.2d 42, 45 (Tex.

App.—San Antonio 1996, writ denied) (holding that what constitutes

consideration is a question of law); Duncan Land & Exploration, Inc. v.

Littlepage, 984 S.W.2d 318, 328 (Tex. App.—Fort Worth 1998, pet. denied)

(holding that jury instruction on question of law was unnecessary); Lone Star

Steel Co. v. Scott, 759 S.W.2d 144, 157 (Tex. App.—Texarkana 1988, writ

denied) (holding that interpretation of a contract is a matter of law). 

60... E.g., Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex. 1971) (holding

that there is no need to submit issue to the jury when facts are undisputed or

conclusively established).

29

8, 1999 through September 27, 1999. The jury also failed to find that

RaceTrac failed to comply with the contract. These findings adequately

encompass the issues on acceptance and performance that the Estate argues

should have been submitted. Therefore, the trial court did not abuse its

discretion by failing to submit questions on those issues.58

The Estate further contends that the trial court erred by not submitting

questions asking whether the contract was an option contract and whether the

option contract was supported by consideration. Those are, however,

questions of law which the trial court was not required to submit to the jury.59

Moreover, the fact that the contract is an option contract was undisputed at

trial. When issues are undisputed, there is no need to submit them to the

jury. We hold, therefore, that the trial court did not abuse its discretion in 60
61... TEX. R. CIV. P. 278; Hyundai Motor Co. v. Rodriguez, 995 S.W.2d

661, 663 (Tex. 1999). 

62... H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22, 23 (Tex. 1998);

Redwine v. AAA Life Ins. Co., 852 S.W.2d 10, 14 (Tex. App.—Dallas 1993,

no writ).

63... TEX. R. APP. P. 44.1(a); Bed, Bath, & Beyond, Inc. v. Urista, 211

S.W.3d 753, 757 (Tex. 2006); Reinhart v. Young, 906 S.W.2d 471, 473 (Tex.

30

refusing to submit the Estate’s questions about whether the contract was an

option contract and whether the option contract was supported by

consideration.

B. Erroneous Waiver Definition

The Estate asserts that the trial court’s definition of “waiver” as “the

voluntary relinquishment of a known right” was incomplete. According to the

Estate, the definition should have included the second part of Texas Pattern

Jury Charge 101.24 that states waiver is also “intentional conduct inconsistent

with claiming the right.” 

A trial court is to include in its charge the questions, instructions, and

definitions raised by the pleadings and evidence. The trial court has 61

considerable discretion in framing a jury charge and is given wide latitude to

determine the propriety of explanatory instructions and definitions. 

62

An erroneous definition requires reversal only if it “probably caused the

rendition of an improper judgment.” Assuming without deciding that the trial 63
1995); Styers v. Schindler Elevator Corp., 115 S.W.3d 321, 326 (Tex.

App.—Texarkana 2003, pet. denied). 

31

court erred by failing to include the second part of the definition of waiver, we

hold that the Estate was not harmed by the alleged erroneous definition. 

The issue of waiver was relevant to special question number two; this

question asked, if the jury found that Longfellow failed to comply with the

RaceTrac contract, whether her failure to comply was excused. The trial court

instructed the jury that “[f]ailure to comply may be excused . . . if compliance

is waived” and defined waiver as “the voluntary relinquishment of a known

right.” 

The Estate argued in closing that Longfellow’s failure to comply, if any,

was excused because RaceTrac either repudiated the contract or waived

compliance by its own refusal to close on the deal. A recurring theme

throughout the Estate’s closing argument was its assertion that RaceTrac

improperly “tied up the land” by filing memorandums of contract in the Tarrant

County deed records while refusing to close. 

The submitted definition of waiver includes within its meaning the type

of intentional conduct that the Estate argued RaceTrac committed. The act of

voluntarily relinquishing a known right necessarily includes intentional conduct

inconsistent with claiming the right. 
64... See TEX. R. APP. P. 44.1(a); Bed, Bath, & Beyond, Inc., 211 S.W.3d

at 757.

32

For these reasons, we hold that the partial definition of waiver, if error,

did not probably cause the rendition of an improper judgment, and the error, if

any, was harmless.64

VI. Escrowed Funds and Earnest Money

The Estate argues that it is entitled to the funds escrowed by Wal-Mart

and RaceTrac’s earnest money. 

The Rule 11 agreement between the Estate and Wal-Mart provided that

if RaceTrac obtained a judgment for specific performance and the gas restriction

remained in place, Wal-Mart would be entitled to the $450,000.00 escrowed

funds. Because we are affirming the trial court’s judgment granting this relief,

the Estate is not entitled to the escrowed funds pursuant to its agreement with

Wal-Mart.

Similarly, the RaceTrac contract states that the Estate would receive

RaceTrac’s earnest money if the sale of the property was not consummated in

accordance with the contract due to RaceTrac’s default. The jury, however,

found that Longfellow breached the contract, not RaceTrac, and we have

concluded that the evidence is sufficient to support the jury’s findings. Thus,

the Estate is not entitled to RaceTrac’s earnest money. 
65... Because we are affirming the trial court’s judgment, it is unnecessary

for us to reach the Estate’s arguments that it is entitled to attorney’s fees. See

TEX. R. APP. P. 47.1. 

33

VII. Conclusion

Accordingly, we overrule all of the Estate’s issues and affirm the trial

court’s judgment.65

PER CURIAM 

PANEL A: CAYCE, C.J.; LIVINGSTON and GARDNER, JJ.

DELIVERED: June 12, 2008