FILED IN BUSINESS COURT OF TEXAS BEVERLY CRUMLEY, CLERK ENTERED 2025 Tex. Bus. 45 11/08/2025
THE BUSINESS COURT OF TEXAS ELEVENTH DIVISION
City Choice Group, LLC, § § Plaintiff, § v. § Cause No. 24-BC11A-0002 TMC Grand Blvd Land Company, LLC § and BCEGI Grand Blvd Manager, LLC, § § Defendants.
═══════════════════════════════════════ MEMORANDUM OPINION ═══════════════════════════════════════
I. INTRODUCTION
¶1 Before the Court is Defendant/Counter-Plaintiff/Third-Party Plaintiff TMC
Grand Blvd Land Company, LLC’s (“TMC”) Traditional Motion for Partial Summary
Judgment on Termination (“First Motion”) against Plaintiff/Counter-Defendant City
Choice Group, LLC (“City Choice”), and TMC’s Motion for Summary Judgment Against
Third Party Defendant City Select Title, LLC (“City Select Title”) for Release of the
Independent Consideration (“Second Motion”). The Court issues this Opinion, in part, in
accordance with Texas Rule of Civil Procedure 360(a)(1), which requires a Texas Business
Court judge to issue a written opinion “in connection with a dispositive ruling, on the
1 request of a party[.]” TEX. R. CIV. P. 360(a)(1). The Court issued an order on June 6, 2025,
granting the First Motion. 1 City Choice requested a written opinion on July 14, 2025. 2 0F 1F
Earlier the same day, TMC filed the Second Motion. The Court issued an order denying the
Second Motion concurrently with this Opinion and has opted to include a discussion of the
Second Motion herein. 3 2F
II. FACTUAL AND PROCEDURAL BACKGROUND
¶2 On May 1, 2024, TMC agreed to sell—and City Choice agreed to buy—20.38
acres of land located in the Houston Medical Center for $22.5 million. 4 The Parties 3F
memorialized these intentions in a written Purchase and Sale Agreement (“PSA”), which
furnished City Choice a unilateral right to terminate the PSA during the pendency of a
designated “Inspection Period,” for “any or no specific reason.” 5 If City Choice opted to 4F
1 The Court issued the June 6, 2025 Order following consideration of the First Motion (filed January 28, 2025); City Choice’s Verified Response to Motion for Summary Judgment (filed February 11, 2025) (“First Response”); TMC’s Reply in Support of Motion for Partial Summary Judgment on Termination (filed February 14, 2025) (“First Reply”); City Choice’s Response to Court’s Questions (filed March 20, 2025) (“City Choice March 20 Brief”); TMC’s Brief on Option to Purchase Contract Issue (filed March 20, 2025) (“TMC March 20 Brief”); City Choice’s Reply Brief (filed March 28, 2025) (“City Choice March 28 Brief”); and TMC’s Reply to City Choice’s Response to the Court’s Questions on Option Contracts (filed March 28, 2025) (“TMC March 28 Brief”); the evidence presented; the arguments of counsel; and the current status of the law. See Order (signed June 6, 2025). 2 In a revision to its Local Rules made effective June 1, 2025, the Business Court now requires that “[a] request for a written opinion under TRCP 360(a)(1) must be made within ten days after the written order deciding the matter.” BCLR 5(g). Accordingly, any request regarding the subject Order would have been due by June 16, 2025. Nevertheless, the Court has decided to issue an opinion in accordance with City Choice’s request. 3 The Court issued its ruling on the Second Motion following consideration of the Second Motion (filed July 14, 2025); City Choice’s Response to TMC’s Second Motion (filed July 16, 2025) (“City Choice’s Second Response”); City Select Title’s Response to TMC’s Second Motion (filed August 4, 2025) (“City Select Title’s Response”); and TMC’s Consolidated Reply to Escrow’s and City Choice’s Responses to TMC’s Second Motion (filed August 11, 2025) (“Second Reply”); the evidence presented; the arguments of counsel; and the current status of the law. 4 Pl.’s Original Pet. at ¶ 9. 5 First Motion at Ex. A (PSA), § 5(b) (“At any time prior to the expiration of the Inspection Period, [City Choice] shall, at [City Choice’s] sole discretion, have the right to terminate this Agreement for any or no specific reason, in which case the Earnest Money Deposit, plus any interest earned thereon, less One Hundred
2 exercise this right, City Choice needed only forfeit $100,000 of its Earnest Money Deposit,
as “Independent Consideration” for its right to terminate. 6 City Select Title was charged 5F
with holding the entire Earnest Money Deposit, including the Independent Consideration,
until either termination or closing. 7 6F
¶3 If City Choice did not exercise its right to terminate, the PSA required the
parties to close the sale within fifteen days following the expiration of the Inspection
Period. 8 Per the PSA, the Inspection Period was set to expire at midnight on Monday, July 7F
1, 2024. 9 8F
¶4 On June 26, 2024, City Choice representative Jonathan Wasserberg emailed
TMC’s broker, Chris Bergmann, and demanded a $500,000 price reduction to account for
the costs of asbestos remediation and compliance with the City of Houston’s water
detention requirements, inter alia. 10 Bergmann promptly relayed this information to TMC 9F
representative, Vivian Gao. 11 On June 28, 2024, Wasserberg again emailed Bergmann, 10F
copying TMC representative Jeff Horton, communicating further detail regarding the City
Thousand Dollars ($100,000.00) (the amount of which [TMC] and [City Choice] acknowledge and agree constitutes the independent consideration for [City Choice’s] right to terminate this Agreement for any reason during the Inspection Period and hereinafter referred to as the ‘Independent Consideration’), shall be refundable to [City Choice], with the Independent Consideration paid to [TMC], and all parties shall be released from further obligations hereunder except those that by their terms survive the termination of this Agreement.”) (emphasis in original). 6 First Motion at Ex. A, § 5(b). 7 Id. at Ex. A, §§ 3(a), 5(b); City Select Title’s Response at Ex. A (Affidavit of Damian Smith), ¶ 3 (“City Select Title, LLC must hold the Earnest Money in escrow until there is a final determination on the enforceability of the Purchase and Sale Agreement.”). 8 First Motion at Ex. A, § 8(a). 9 First Response at 6 (“It is undisputed that Monday, July 1, 2024, was the last day of the Inspection Period.”) (emphasis in original). 10 Id. at 6, Ex. 6, 7 (relevant emails). 11 Id. at Ex. 6.
3 of Houston’s water detention requirements, and requesting an extension of the Inspection
Period. 12 11F
¶5 On July 1, 2024 at 3:35 PM, by and through its broker, Bergmann, TMC sent
City Choice a proposed First Amendment to the PSA which would have extended the
Inspection Period and given TMC the right to terminate the contract should TMC’s board
of directors not approve City Choice’s requested price reduction. 13 At 4:46 PM, Wasserberg 12F
sent Bergmann a revised version of the First Amendment which deleted the clause granting
TMC an option to terminate. 14 In his email transmission, Wasserberg elaborated on City 13F
Choice’s counter-offer: “Attached is a 1st amendment that you are requested to sign and
return to me, effective immediately. If you cannot sign and return to me, then this email
serves as our notice to terminate the Agreement.” 15 14F
¶6 At 10:28 PM, having received no response from TMC, Wasserberg followed
up, this time copying TMC representative Jeff Horton: “Bringing this to the top of your
inbox. What’s the verdict?” 16 When the clock struck midnight, neither version of the First 15F
Amendment had been fully executed, and the Inspection Period ended. 17 16F
¶7 The next morning, TMC had been left with the impression that the PSA had
terminated pursuant to Wasserberg’s notice, and subsequently refused to close the sale. 18 17F
12 First Response at Ex. 7. 13 Id. at Ex. 13 (relevant email). 14 Id. at Ex. 2, 14 (termination email (Ex. 2) attaching City Choice’s Proposed First Amendment to Sale and Purchase Agreement (Ex. 14)). 15 Id. at Ex. 2, 14. 16 Id. at Ex. 15 (relevant email). 17 Id. at 7. 18 Id. at Ex. 4, 16 (relevant emails).
4 Nevertheless, City Choice purportedly continued to perform as if the parties were moving
forward to closing. 19 18F
¶8 Of disputed relevance, Section 13 of the PSA, entitled “NOTICE,” required
“[a]ll notices, demands, or other communications of any type given, or required to be given,
pursuant to [the PSA]” to be sent to an enumerated list of addresses for specific individuals
associated with each party. 20 City Choice implicitly points out in its briefing that the 19F
19 First Response at 7. 20 First Motion at Ex. A, § 13. The full text of Section 13 is as follows:
All notices, demands, or other communications of any type given, or required to be given, pursuant to this Agreement shall be in writing and shall be delivered to the person to whom the notice is directed, either in person with a receipt requested therefore, or sent by a recognized overnight service for next day delivery or by United States certified mail, return receipt requested, postage prepaid to the addresses or by pdf email, so long as followed up by regular mail, as follows:
If to [TMC]:
TMC Grand Blvd Land Company LLC [TMC’s Physical Address] Attention: Monzer Hourani Email: [Hourani’s email address]
With a copy to:
Medistar Corporation [Medistar’s Physical Address] Attention: Jeff Horton Email: [Horton’s email address]
Gray Reed [Gray Reed’s Physical Address] Attention: Stephen Cooney Email: [Cooney’s email address]
If to [City Choice]:
City Choice Group, LLC c/o Jonathan Wasserberg [City Choice’s Physical Address only]
5 contact for TMC’s broker, Chris Bergmann, is not included in the notice list. 21 While no 20F
party raises the point in argument, a review of Section 13 also reveals that Wasserberg’s
email address is not included in the notice list either. 22 21F Facially, none of the
communications or notices in evidence before the Court strictly complied with Section 13. 23 22F
¶9 On September 4, 2024, City Choice filed its original petition in the Business
Court, seeking specific performance of the PSA, attorneys’ fees, and the release of a lis
pendens which had been filed on the subject property. 24 On October 8, 2024, TMC filed a 23F
Third-Party Petition against City Select Title, which included a claim for money had and
received surrounding City Select Title’s possession of the Independent Consideration past
the termination of the PSA. 25 As of the date of the issuance of this Opinion, TMC has not 24F
filed an application for writ of attachment against City Select Title for the immediate
recovery of the Independent Consideration.
John R. Krugh [Krugh’s Physical Address] Email: [Krugh’s email address]
Any notice given by personal delivery or courier delivery service will be deemed effective when received. Any notice given by United States Mail will be deemed effective on the third (3rd) business day following deposit in the United States mail, postage prepaid, registered or certified mail, return receipt requested, addressed as set forth above. Any notice sent by email shall be deemed given by the date reflected on the email so long as a hard copy is sent to the recipient by one of the other methods approved above. Any notice that may be given by either party in connection with this Agreement may be given by such party’s attorney.
21 First Response at 11 (“It is indisputable that none of City Choice’s emails complied with [Section 13]. None [were] sent to TMC’s designated representative in the required manner of service.”). 22 First Motion at Ex. A, § 13. 23 See supra ¶¶ 4–7. 24 See generally Pl.’s Original Pet. 25 See generally Countercl. and Third-Party Pet. of TMC.
6 ¶10 On January 28, 2025, TMC filed its First Motion seeking declarations from
the Court consistent with a finding that City Choice had terminated the PSA. 26 After the 25F
Court granted the First Motion, TMC filed the Second Motion on July 14, 2025, seeking
the instant return of the Independent Consideration, pursuant to TMC’s money had and
received claim. 27 Concurrent with the signing of this Opinion, the Court denies the Second 26F
Motion. The Court sets forth its reasoning behind its rulings on the First Motion and the
Second Motion herein.
III. LEGAL STANDARD
¶11 A party moving for traditional summary judgment must demonstrate that no
genuine issue of material fact exists and it is entitled to judgment as a matter of law.
TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985);
Wal-Mart Stores, Inc. v. Xerox State & Local Sols., Inc., 663 S.W.3d 569, 576 (Tex. 2023).
The evidence favoring the non-movant is taken as true and every reasonable inference from
the evidence is indulged in the non-movant’s favor. Nixon, 690 S.W.2d at 548–49;
Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex. 1984). “When a contract is not
ambiguous, the construction of the written instrument is a question of law for the court.”
MCI Telecommunications Corp. v. Tex. Utilities Elec. Co., 995 S.W.2d 647, 650 (Tex. 1999)
(citing Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983)). Here, the material facts are
undisputed, and no party has pled that the PSA is ambiguous.
26 First Motion at 3–4. 27 See generally Second Motion.
7 IV. ANALYSIS
A. The First Motion
¶12 In its First Motion, TMC sought the following rulings: (i) effective July 1,
2024, City Choice terminated the PSA between TMC and City Choice; (ii) City Choice has
no right to purchase the property; (iii) City Choice shall take nothing by its claim for specific
performance; and (iv) City Choice shall take nothing by its claim regarding lis pendens, as
the claim is moot. 28 27F
¶13 In opposition to the First Motion, City Choice argued (i) that the PSA
qualifies as an option contract; (ii) that Wasserberg’s purported “notice to terminate the
Agreement” 29 was actually the attempted exercise of an option, but was too equivocal to 28F
effectively exercise an option; and (iii) that the terms of the “option,” allegedly including
Section 13’s notice terms, were not sufficiently complied with for City Choice’s exercise of
its alleged “option” to have been effective. 30 Functionally, City Choice sought to nullify 29F
its termination notice, relying on its own lack of specific compliance with the notice
provisions of the PSA. 31 30F
i. City Choice’s termination notice was clear and unequivocal.
¶14 Under Section 5 of the PSA, City Choice had a unilateral right to terminate
the PSA during the Inspection Period “for any or no specific reason.” 32 Seven hours and31F
28 First Motion at 3–4. As to the portion of the Motion concerning the lis pendens, TMC attached a release of the lis pendens as an exhibit to the Motion, and City Choice did not subsequently brief any aspect of the issue. See id. at Ex. H. 29 First Response at Ex. 2. 30 See generally First Response. 31 See generally id. 32 First Motion at Ex. A, § 5(b).
8 fourteen minutes before the end of the Inspection Period, City Choice had the option to sign
TMC’s proposed First Amendment to the PSA, which would have extended the Inspection
Period and given TMC a time-limited termination right, so that City Choice’s desired price-
reduction could be negotiated. 33 32F
¶15 Instead, City Choice countered with a revised form of the First Amendment
which eliminated TMC’s time-limited termination right, and stated “[i]f you cannot sign
and return to me, then this email serves as our notice to terminate the Agreement.” 34 At 33F
midnight, when the Inspection Period ended, TMC had not signed and returned City
Choice’s desired form of the First Amendment, and City Choice’s termination notice
became effective. 35 City Choice’s termination notice may have been conditional, but it was 34F
nevertheless clear and unequivocal, and any conditions precedent to its effectiveness were
satisfied at the conclusion of the Inspection Period. 36 35F
ii. City Choice’s tender of its termination notice was not the exercise or acceptance of an option, and is therefore, not subject to the “strict compliance” standard applicable to the exercise or acceptance of options.
¶16 Without first having established premises that the PSA was an option
contract, or that the exercise of City Choice’s termination right constituted the exercise of
an option, City Choice led its initial responsive argument with a bold statement of
authority: “[i]t is well established in Texas that the exercise of an option, must be
ʻunqualified, absolute, unconditional, unequivocal, unambiguous, positive, without
33 See First Response at Ex. 11, 13, 15. 34 See id. at Ex. 2, 14. 35 See id. at 7. 36 See supra notes 32–35 and accompanying text; see also First Motion at 2.
9 reservation and according to the terms or conditions of the option.’” 37 36F After rote
explications of Ogden 38 and Crown Construction, 39 City Choice descended directly into an 37F 38F
application of the strict compliance standard to the facts of this case without any
explanation of why that standard might apply. 40 39F
¶17 When the Court solicited further briefing on City Choice’s option argument,
City Choice provided authority seeking to justify that the PSA qualifies as an option
contract as a whole. 41 Nevertheless, City Choice failed to establish that the exercise of its 40F
termination right qualified as the exercise of an option. 42 After making reference to the law 41F
on option contracts, City Choice provided a near-exact reprisal of the authorities and case
explications from the First Response. 43 42F
¶18 Each of City Choice’s cases address attempts to enforce previously dormant
affirmative contractual rights or obligations against one party which were triggered by the
other party’s unilateral notice (i.e., the acceptance or exercise of an option). 44 Prior to the43F
37 First Response at 8 (citing Besteman v. Pitcock, 272 S.W.3d 777, 784 (Tex. App.—Texarkana 2008, no pet.); Scott v. Vandor, 671 S.W.2d 79, 84 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.); Suiter v. Woodard, 635 S.W.2d 639, 641 (Tex. App.—Waco 1982, writ ref’d n.r.e.); City of Brownsville v. Golden Spread Elec. Co-op., Inc., 192 S.W.3d 876, 880 (Tex. App.—Dallas 2006, pet. denied)). 38 Ogden v. Gibraltar Sav. Ass’n, 640 S.W.2d 232 (Tex. 1982). 39 Crown Const. Co., Inc. v. Huddleston, 961 S.W.2d 552 (Tex. App.—San Antonio 1997, no pet.). 40 First Response at 9–11. 41 City Choice March 20 Brief at 1–2. 42 See generally id. 43 Compare First Response at 8 with City Choice March 20 Brief at 3–5. 44 In Crown Const., 961 S.W.2d at 558 (emphasis added, internal citations omitted), the San Antonio Court articulated the “strict compliance requirement in option contract situations. It is well settled that strict compliance with the provisions of an option contract is mandatory in nature, and, generally, equitable relief will not be extended absent such compliance. Acceptance of an option, unless excused in rare cases of equity, must be unqualified, unambiguous, and strictly in accordance with the terms of the agreement.” In Besteman v. Pitcock, 272 S.W.3d 777, 784 (Tex. App.—Texarkana 2008, no pet.) (emphasis added), the Texarkana Court quotes the San Antonio Court in Crown Construction, stating “[e]xcept in rare cases of equity, acceptance of an option must be unqualified, unambiguous, and strictly in accordance with the terms of the agreement.” In Scott v. Vandor, 671 S.W.2d 79, 84 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.) (emphasis added), the First Court stated that an “option could only be accepted by purchaser’s tendering full
10 subject notices in City Choice’s cases, the subject right or obligation would not have been
enforceable against the third party. 45 Without variance, each of these cases dictate that 44F
“strict compliance”—not substantial compliance—is the standard in that context. 46 These 45F
cases bear little factual similarity to the case at bar. 47 46F
¶19 Here, before City Choice’s unilateral termination notice, the parties were
bound to perform. After City Choice’s unilateral termination notice, the parties were no
longer bound to perform. Even assuming, arguendo, that the PSA qualifies as an option
contract for reasons not analyzed herein, City Choice’s exercise of its rights under Section
5(b) of the PSA (the termination provision) is clearly not the acceptance or exercise of any
option contained within the PSA. 48 City Choice proffers no other reason why the “strict 47F
compliance” standard should apply.
compliance in strict accordance with its terms and within the time limits provided therein, time being of the essence to an option agreement.” In Suiter v. Woodard, 635 S.W.2d 639, 641 (Tex. App.—Waco 1982, writ ref’d n.r.e.) (emphasis added), the Waco Court addressed that “[a]n option must be accepted strictly in accordance with its terms.” In City of Brownsville v. Golden Spread Elec. Co-op., Inc., 192 S.W.3d 876, 880 (Tex. App.—Dallas 2006, pet. denied) (emphasis added, internal citations omitted), the Dallas Court detailed that an option holder’s “exercise of the option to purchase must be positive, unconditional, and unequivocal,” elaborating that the option holder “must accept all the terms of the offer or the offer will be considered rejected.” The Dallas Court continued: “In the absence of an agreement otherwise, unequivocal acceptance of the terms of the offer is considered an exercise of the right to purchase. When the rightholder gives notice of his intent to accept the offer and exercise his option, a contract between the rightholder and the property owner is created.” In Ogden, 640 S.W.2d at 234 (emphasis added, internal citations omitted), the Texas Supreme Court held that a letter “was insufficient to give notice that Gibraltar intended to exercise its option to accelerate the [subject] debt . . . [because t]he letter gave no clear and unequivocal notice that Gibraltar would exercise the option. Rather, it merely restated the option conferred in the [subject] deed of trust.” 45 See authorities supra note 44. 46 Id. 47 Id. 48 See TMC March 20 Brief at 3 (“A right to terminate is neither an option to purchase contract nor a contract for sale.”).
11 iii. City Choice substantially complied with the notice provisions contained within Section 13 of the PSA in exercising its right to terminate under Section 5(b).
¶20 Instead, because City Choice’s tender of its termination notice does not
constitute the exercise of an option, the applicable standard is that which is applied to
contractual written notice requirements—substantial compliance. See James Constr. Grp.,
LLC v. Westlake Chem. Corp., 650 S.W.3d 392, 405 (Tex. 2022) (substantial compliance is
the controlling standard for contractual written notice provisions); see also Barbier v. Barry,
345 S.W.2d 557, 562 (Tex. App.—Dallas 1961, no writ) (failure to send notice by certified
mail as required by the agreement did not destroy its effectiveness when notice was actually
received).
¶21 In applying this standard, “a party’s minor deviations from a contractual
notice condition that do not severely impair the purpose underlying that condition and
cause no prejudice do not and should not deprive that party of the benefit of its bargain.”
James Constr. Grp., 650 S.W.3d at 406. “Moreover, the doctrine serves the important
purpose of preventing parties from engaging in bad-faith ʻgotcha’ tactics to avoid their own
contractual obligations based on a technicality.” Id. While this rule was clearly phrased to
address the situation where a party seeks to benefit from its opponent’s failure to strictly
comply with contractual notice provisions, there has been no argument that the rule would
or should be different if a party seeks to benefit from its own failure to strictly comply. 49 48F
¶22 Here, City Choice substantially complied with the notice provisions of the
PSA in its unilateral termination because the notice of termination was effective
49 See First Reply at 3–4.
12 and conformed with the conduct between the parties in communication regarding the PSA.
See id. 50 While these facts alone are sufficient to establish City Choice’s substantial 49F
compliance, it is also pertinent that the notice was ultimately delivered to one of the
designated notice contacts for TMC in the 10:28 PM email. 51 In sum, City Choice’s 50F
deviation from the contractual notice conditions did not severely impair the purpose
underlying those conditions and caused no prejudice. 52 See James Constr. Grp., 650 S.W.3d 51F
at 406. Moreover, were the Court to apply the heightened standard of strict compliance as
City Choice suggests, the Court would be enabling City Choice to avoid the consequences
of its actions based on a technicality. See id. 53 52F
iv. Regardless of whether City Choice substantially complied with the notice provisions contained within Section 13, City Choice is estopped from obtaining specific performance of the contract it purported to terminate.
¶23 In its reply brief, TMC raised, for the first time, an argument based on its
quasi-estoppel defense:
Here, City Choice’s July 1, 2024 email “substantially complied” with the PSA’s notice provision—TMC received it, there is no dispute about that—so it was effective. City Choice provided notice to TMC’s agent, Chris Bergmann, via its 4:46 PM email, and TMC received the Notice. According to Section 5(b) of the PSA, that email terminated the Agreement. And, the notice provision, in this context, runs in TMC’s favor – City Choice cannot fail to comply and then later claim the benefit of that failure; it is estopped to argue otherwise and only TMC could invoke the provision, were City Choice’s notice not in substantial compliance (it was). 54 53F
50 See also First Reply at 4. 51 First Response at Ex. 15. 52 First Reply at 3–4. 53 Id. at 3–4. 54 First Reply at 4 (footnotes omitted, emphasis added) (citing Freezia v. IS Storage Venture, LLC, 474 S.W.3d 379, 387 (Tex. App.—Houston [14th Dist.] 2015, no pet.); Forney 921 Lot Dev. Partners I, L.P. v. Paul Taylor Homes, Ltd., 349 S.W.3d 258 (Tex. App.—Dallas 2011, pet. denied)) (quasi-estoppel cases).
13 ¶24 At the hearing, the parties briefly addressed the substance of the quasi-
estoppel argument, but City Choice did not object to the submission of the issue generally.
For the avoidance of doubt, in the post-hearing briefing regarding option contracts, City
Choice appears to have explicitly waived its objection to the submission of the issue. 55 54F
¶25 On the substance, the principle of “[q]uasi-estoppel precludes a party from
asserting, to another’s disadvantage, a right inconsistent with a position previously taken.”
Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000). “The doctrine
applies when it would be unconscionable to allow a person to maintain a position
inconsistent with one to which he acquiesced, or from which he accepted a benefit.” Id.
¶26 Here, City Choice, having explicitly tendered a “notice to terminate the
Agreement” 56 under Section 5(b), cannot obtain specific performance of the PSA. If any 55F
further analysis is necessary, the Court would find it “unconscionable” to force TMC to sell
its property to City Choice after City Choice explicitly terminated the contract. See Lopez,
22 S.W.3d at 864.
B. The Second Motion
¶27 In its Second Motion, TMC does not seek a simple declaration from this Court
that TMC is entitled to receipt of the Independent Consideration at the execution of the final
55 City Choice March 28 Brief at 4 n.4 (“New arguments in a reply brief are not permitted to support a motion for summary judgment. See Sanchez v. Martin, 378 S.W.3d 581, 590 (Tex. App.—Dallas 2012, no pet.). However, City Choice does not want to stand on procedural formalities and therefore addresses the merits of the claim in this brief.”) (emphasis added). 56 First Response at Ex. 2.
14 judgment in this case. 57 Instead, TMC seeks the immediate (i.e., pre-judgment) release of 56F
the Independent Consideration. 58 57F
¶28 Under Texas law, in order to obtain the extraordinary remedy of the seizure
of a debt prior to the issuance of a judgment, a creditor must meet the statutory
requirements for a writ of attachment. See TEX. CIV. PRAC. & REM. CODE §§ 61.001–61.005;
In re Argyll Equities, LLC, 227 S.W.3d 268, 271 (Tex. App.—San Antonio 2007, no pet.).
The remedy exists to mitigate the risk that a debtor may become judgment-proof during the
pendency of litigation. 59 In order to obtain this remedy, a plaintiff must file an application 58F
for a writ of attachment, supported by certain evidence, and comply with all of the statutory
requirements for the issuance of the writ. TEX. R. CIV. P. 592 (entitled “Application for
Writ of Attachment and Order”); see TEX. CIV. PRAC. & REM. CODE §§ 61.001–61.005
(Subchapter A entitled “Availability of Remedy”). Because TMC has failed to comply with
the statutory requirements for a writ of attachment, it is not entitled to pre-judgment
seizure of City Select Title’s debt.
¶29 The sole argument TMC presents to the contrary relies on the allegation that
TMC would be entitled to the release of the Independent Consideration notwithstanding
whether the PSA terminated. See TMC’s Second Reply at 2–3 (“Thus, regardless of the
outcome of this case—even in the most unlikely hypothetical where City Choice defeats
TMC on the law and facts and proceeds to close on the PSA—City Choice still is not entitled
57 See generally Second Motion. 58 See id. at 1. 59 See Midway Nat. Bank of Grand Prairie v. W. Tex. Wholesale Co., 447 S.W.2d 709, 710 (Tex. App.—Fort Worth 1969), writ ref’d n.r.e. sub nom. Midway Nat. Bank of Grand Prairie, Tex. v. W. Tex. Wholesale Supply Co., 453 S.W.2d 460 (Tex. 1970).
15 to the funds; nor is Escrow. There is, then, no danger of some illegal premature attachment
of those funds.").°° While it is true that TMC will be entitled to the Independent
Consideration on execution of a final judgment no matter whether the Fifteenth Court
agrees with this Court on termination,*! TMC still seeks recovery of the debt associated
with its claim against City Select Title prior to the issuance of a final judgment on same.®?
As a result, it appears that this Court remains bound by the statutory process for writs of
attachment. Because this process has not even begun, the Court must deny the Second
Motion.
V. CONCLUSION
For the foregoing reasons, the Court issued its orders granting the First Motion and
denying the Second Motion.
SO ORDERED.
SIGNED: November 8, 2025 o
H Adrogué exas usiness Court, Eleventh Division
5° Compare First Motion at Ex. A, § 3(a) ("The Earnest Money shal1 become non-refundable at the expiration of the Inspection Period or any extension thereof. If this Agreement is closed, the Earnest Money Deposit, and any interest earned thereon shall be applied to the Purchase Price at Closing. If this Agreement is not closed, then [City Select Title] shall disburse the Earnest Money Deposit in the manner provided for elsewhere herein, and the parties agree to promptly notify [City Select Title] in writing upon any termination of this Agreement as to which party is entitled to the Earnest Money Deposit.") (emphasis added) with Motion at Ex. A, § 5(b) ("At any time prior to the expiration of the Inspection Period, [City Choice] shall, at [City Choice's] sole discretion, have the right to terminate this Agreement for any or no specific reason, in which case the Earnest Money Deposit, plus any interest earned thereon, less One Hundred Thousand Dollars ($100,000.00) (the amount of which [TMC] and [City Choice] acknowledge and agree constitutes the independent consideration for [City Choice's] right to terminate this Agreement for any reason during the Inspection Period and hereinafter referred to as the 'Independent Consideration'), shall be refundable to [City Choice], with the Independent Consideration paid to [TMC], and all parties shall be released from further obligations hereunder except those that by their terms survive the termination of this Agreement.") (emphasis in original, second emphasis added). 61 See comparison supra note 60. 62 See Second Motion at 4-5.