Arbor Windsor Court, Ltd. v. Weekley Homes, LP

463 S.W.3d 131, 2015 Tex. App. LEXIS 2463, 2015 WL 1245548
Court of Appeals of Texas·Decided March 17, 2015·No. NO. 14-13-00480-CV·Published·Cited by 21 cases

Opinions

OPINION

Sharon McCally, Justice

Appellant, Arbor Windsor Court, Ltd. (Arbor), appeals the trial court’s judgment following a jury verdict. Specifically, in two main issues, Arbor contends the trial court erred in rendering a take-nothing judgment on its breach of contract claims against Weekley Homes, LP (Weekley). Weekley also asserts two conditional cross-points in support, of the trial court’s judgment. We affirm.

I. Background

A. Summary Factual Background

In April 2006, Arbor and Weekley entered into an “Agreement for Sale and Purchase of Lots” (the Agreement) whereby Arbor would purchase the land and develop the lots, and then Weekley would buy the developed lots. To that end, Arbor secured a $3,850,000 loan to purchase the land and develop 32-35 lots. Arbor’s loan had a two year payoff, beginning on June 30, 2006, and was secured by a deed of trust. The Agreement between Arbor and Weekley provided a rolling schedule for Weekley to purchase the lots. From 2006 to December 1, 2008, the disputed evidence at trial showed that each party believed the other was not fulfilling its obligations under the Agreement and they attempted resolution through amended agreements, culminating in the parties’ final Fourth Amendment. By this time, Weekley had bought only 18 of the lots and, as a result, Arbor alleges, Arbor was in default on the loan.

In March 2009, the mortgage company advised Arbor that Texas Community Bank purchased its loan. Arbor later learned the loan had been subsequently purchased by FETC, the entity which eventually gave Arbor notice of its intent [134]*134to post the land for foreclosure. Arbor proposed to Weekley that Arbor and Weekley jointly attempt to avoid the foreclosure. They did not. FETC foreclosed on the property. Weekley appeared at the foreclosure sale and purchased the properly for $1,320,000.

B. Procedural Background

Arbor sued Weekley1 for breach of the Agreement and its amendments for failing to purchase lots according to the schedule, as well as for fraud and wrongful foreclosure. Weekley counter sued Arbor for breach of contract. The parties tried their claims to a jury.2 Some of the jury’s answers favored Arbor and some favored Weekley. Because the issues dispositive of this appeal turn entirely upon the jury’s answers to (or failures to answer) Questions Nos. 1, 2, 3, and 4, we set forth those questions and any associated predicate instructions verbatim, along with the responses from the jury:

Question No. 1
Question No. 1
Do you find that Arbor Windsor Court performed all of the conditions precedent to the agreement as set forth below:
Provided Weekley Homes with 15 days written notice of default under the written agreement so that Week-ley could cure such default.
Answer “Yes” or “No.”
The jury answered Question No. 1 “No.”
Question No. 2
Question No. 2 is preceded by the following predicate instruction: “If you answered ‘Yes’ to Question No. 1, answer the following question. Otherwise, do not answer question No. 2.”
Question No. 2
Was Arbor Windsor Court excused from sending a notice of default to Weekley Homes?
You are instructed that Arbor Windsor Court is excused from complying if the failure, if any, was
1. not material, or
2. was waived, or
3. if Weekley Homes anticipatorily repudiated the agreement or
4. if Weekley Homes is estopped from complaining of Arbor Windsor Court’s failure to comply with the agreement.
Answer “Yes” or “No.”

The jury did not answer Question No. 2 because of the predicate.

Question No. 3
Question-No. 3
Did Weekley Homes fail to comply with the agreement?
You are instructed that Weekley Homes is excused from complying if the failure, if any, was
1. not material, or
[135]*1352. was waived, or
3. if Arbor Windsor Court anticipa-torily repudiated the agreement
4. if Arbor Windsor Court is es-topped from complaining of Weekley’s failure to comply with the agreement.
Answer ‘Tes” or “No.”

The jury answered Question No. 3 ‘Tes.”

Question No. ⅛
Question No. 4
Did Arbor Windsor Court fail to comply with the agreement?
You are instructed that Arbor Windsor Court is excused from complying if the failure, if any, was
1. not material, or
2. was waived, or
3. if Weekley Homes anticipatorily repudiated the agreement or
4. if Weekley Homes is estopped from complaining of Arbor Windsor Court’s failure to comply with the agreement.
Answer “Yes” or “No.”

The jury answered Question No. 4 “No.”

Arbor sought judgment on the jury verdict based upon the jury’s answer to Question No. 3 (Weekley failed to comply). Weekley sought judgment on the jury verdict based upon the jury’s answer to Question No. 1 (Arbor did not perform the condition precedent), or in the alternative, judgment notwithstanding the verdict. The trial court rendered a take-nothing judgment in favor of Weekley without specifying the basis therefor. This appeal ensued.

II. Analysis

A. Weekley’s Motion for Judgment on the Verdict

The sole basis for Weekley’s motion for judgment on the verdict was the jury’s answer to Question No. 1. As a factual matter, Arbor did not and does not here dispute that it failed to send the written notice. Arbor’s factual position is that it “accepted Weekley’s request not to send this notice.” Therefore, Arbor does not challenge the sufficiency of the evidence to support the answer to Question No. 1.

Instead, Arbor argues two independent legal reasons that the jury’s answer to Question No. 1 on condition precedent does not support a Weekley Homes judgment. Both of these issues turn on well-established law governing conditions precedent: A condition precedent must either be met or excused before the other party’s obligation may be enforced.3 See Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex.1976). First,4 Arbor argues that Question No. 1 should not [136]

Free access — add to your briefcase to read the full text and ask questions with AI

Arbor Windsor Court, Ltd. v. Weekley Homes, LP, 463 S.W.3d 131, 2015 Tex. App. LEXIS 2463, 2015 WL 1245548 (Tex. Ct. App. 2015).

463 S.W.3d 131 (Arbor Windsor Court, Ltd. v. Weekley Homes, LP) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Empower School, LLC v. Covenant Management Systems, LP
Tex. App. Ct., 3rd Dist. (Austin), 2026
SM Energy Co. v. Colgate Prod., LLC
New Mexico Court of Appeals, 2025
Conn Credit I, L.P. v. TF Loanco III, L.L.C.
903 F.3d 493 (Fifth Circuit, 2018)
in Re: Enterprise Crude Oil, LLC
Court of Appeals of Texas, 2018
Cypress Engine Accessories, LLC v. HDMS Ltd. Co.
283 F. Supp. 3d 580 (S.D. Texas, 2017)