World Food Imports, Inc., and KGF World Food Warehouse, Inc. v. HHO United Group, Inc., as Assignee of Nihaya Qaddura and Sharif Choudhury

• Court: Court of Appeals of Texas
• Decided: October 23, 2024
• Docket: 05-22-01160-CV
• Status: Published

Opinion

Affirm in part; Reverse and Render in part and Opinion Filed October 23, 2024

In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-01160-CV

WORLD FOOD IMPORTS, INC. AND KGF WORLD FOOD WAREHOUSE, INC., Appellants V. HHO UNITED GROUP, INC., AS ASSIGNEE OF NIHAYA QADDURA, AND SHARIF CHOUDHURY, Appellees

On Appeal from the 191st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-05428

MEMORANDUM OPINION Before Justices Partida-Kipness, Reichek, and Breedlove Opinion by Justice Reichek This case involves a contract for the sale of a Houston specialty grocery store

that did not close. The Dallas buyer sued the sellers for breach of contract and sought

specific performance. The buyer’s broker also sought to enforce the contract as a

third-party beneficiary and recover his commission. A jury returned a verdict in

favor of the buyer and its broker. In accordance with the jury’s verdict, the trial

court ordered specific performance of the contract, awarded the buyer lost profits,

–1– and ordered the sellers to pay the broker his commission after closing. The judgment

also awards both the buyer and broker attorney’s fees, costs, and interest. In this

appeal, the sellers contend the evidence is insufficient to support the jury’s verdict

and also complain of other alleged errors, including jury-charge error and the trial

court’s exclusion of witnesses. For reasons that follow, we reverse the award of lost

profits damages to the buyer and render judgment deleting that award. We also

reverse the awards of pre- and postjudgment interest to the broker on his commission

and render judgment deleting those awards. In all other respects, we affirm the trial

court’s judgment.

Background

Appellants World Food Imports, Inc. and KGF World Food Warehouse, Inc.

own an Indian/Pakistani supermarket in Houston.1 Mashood Kaiser, who died in

April 2019 before the case went to trial, was the president and owner of World Food

Imports and KGF World Food Warehouse (collectively “the Kaiser Companies”).

Mashood agreed to sell the grocery store and real estate to Nihaya Qaddura, the

owner of appellee HHO United Group, Inc. HHO owns three grocery stores in the

DFW area. HHO operated one store, and different family companies operated the

other two. Nihaya is president of all the companies. Shoukry Qaddura, Nihaya’s

1 World Food Imports owns the real estate, and KGF World Food Warehouse owns and operates the grocery store.

–2– brother-in-law and his brother run the stores. The Qaddura family has been in

grocery business since 1992 and previously bought two of its grocery stores from

Mashood.

Shoukry was the primary representative for the Qaddura family that

negotiated the contract with Mashood. Although Nihaya signed the contract, she

never spoke to Mashood about the contract and was not familiar with its terms. She

later assigned her interest in the contract to HHO. Appellee Sharif Choudhury acted

as HHO’s broker for the purchase of the Houston store and drafted the contract.

The contract between HHO and the Kaiser Companies is comprised of five

documents: a standard form Texas Association of Realtors Commercial Contract, a

Commercial Contract Financing Addendum, and three Commercial Contract

Amendments. In October 2014, the Kaiser Companies and Nihaya signed the

Commercial Contract for the sale of the property, as well as the addendum and first

amendment. The purchase price was $6.6 million, and the contract was contingent

upon Nihaya obtaining third-party financing secured by the property. The parties

agreed the sale price would include $700,000 worth of inventory. The first

amendment provided: “SELL PRICE $6,600,000.00 INCLUDED $700,000.00

INVENTORY AT WHOLESALE PRICE TO BUYER. SAID INVENTORY

LIST/ITEMS TO BE MUTUALLY AGREED BY BUYER AND SELLER.” The

Commercial Contract contained a similar provision.

–3– In addition, the contract required the Kaiser Companies to pay Choudhury’s

broker’s fee. It provided, “AT CLOSING, SELLER TO PAY FROM SELLERS

SALE PROCEED DIRECTLY FROM TITLE COMPANY . . . BROKERS FEE

$850,000.” The contract was later amended twice to extend the closing date, with a

final closing date of March 31, 2015.

HHO obtained funding from Synergy Bank for the purchase. Synergy Bank

offered Nihaya a conditional commitment to finance a $5 million Small Business

Administration (“SBA”) loan. The bank also offered Nihaya a conditional

commitment to finance a $1,650,000 conventional loan. She accepted both offers.

The SBA loan was to cover the purchase of the Houston property—the land,

building, and the business itself—and the conventional loan was to refinance other

real estate of the borrower’s in Dallas and give them some “cash out for their equity.”

The two loans shared a lien interest.

The Qaddura family was going to form a new company, World Gourmet

Houston, in connection with the Houston store. HHO would own the store, and the

new company would rent the store.

As the closing date approached, Mashood was admitted to the hospital on

February 27, 2015, and remained there for about a month.

Evidence showed that in addition to the contract requirement that the parties

mutually agree on $700,000 worth of inventory, the lender required an inventory.

–4– The bank arranged for an inventory by a professional company to take place at the

store on the afternoon of March 26. On March 25, Shoukry and several others went

to the Houston store for the inventory. When they arrived they saw Mashood’s wife

Maria and told her why they were there. She was surprised to learn about the sale

of the store; Mashood had not told her about it. She told Shoukry to deal with the

store managers and left. When she returned after a couple of hours, Shoukry and the

others were in the back storage area using a forklift to check expiration dates on

boxes of merchandise. She told them they needed to leave that part of the store and

wait for her in the front. When she failed to show up, they left. Kinjal Chheda

(“KC”), a CPA for the Kaiser Companies who was acting as store manager while

Mashood was out, called Shoukry later that day and told him to come back. Shoukry

and the others went back and waited again for Maria, but she never arrived. That

night, KC emailed the lawyer for Mashood and the Kaiser Companies, Henry

Ackels, to get his approval for the inventory that was supposed to take place the next

day at 1:00 p.m.

Shoukry went back to the store the next morning by himself. Another

employee gave him Ackels’s phone number and told him Ackels wanted to speak to

him. Shoukry called Ackels, who said, “[I]t’s not going to be no inventory, it’s not

going to be no sale.” Ackels told Shoukry if he did not leave the store Ackels would

–5– call the police. Shoukry called the inventory company to cancel and returned to

Dallas.

Over the next few days, Shoukry spoke to Ackels several times. Ackels told

him that he wanted to renegotiate the contract, including the price. Emails between

Nancy Patterson, with Fidelity National Title Company, and Heather Sadler with

Synergy Bank on March 27, 2015, show that Ackels called them both to say the

Kaiser Companies were not going through with the deal because Mashood was very

ill. On March 30, Ackels sent Nihaya a letter with a proposed amendment to the

contract. He also sent a copy of those documents to Patterson at the title company.

Ackels wanted to extend the closing date to July 31, 2015. In addition, the proposal

included a list of four items the “Buyer and Seller must agree [to] in writing” before

the new closing date. Shoukry described the items as new terms. He testified that if

the Kaiser Companies had sought only an extension of time that would not have been

a problem, but they wanted to renegotiate the contract. His family did not agree to

the proposed terms, and Nihaya did not sign the proposed amendment.

On March 31, the day the Kaiser Companies were scheduled to sign closing

documents with the title company, Ackels wrote to Patterson again, objecting to one

of the closing documents. Ackels stated that “there should be no closing at this time”

and “[a]ny attempted closing by the Buyer is bogus and inappropriate.”

–6– Shoukry, Nihaya, and Choudhury went to the title company for the closing on

March 30. HHO signed all the closing documents. One of the documents was titled

“Agreement of No Funding and Post Closing Compliance Agreement,” and it

contained a list of outstanding requirements that needed to be resolved before

Synergy Bank would fund the loan, including the sellers’ execution of the closing

documents. The Kaiser Companies did not come to the closing, and the bank did

not fund the loans.

In May of 2015, HHO, as assignee of Nihaya, filed its original petition against

the Kaiser Companies. HHO alleged the Kaiser Companies breached the contract

by failing to appear at closing and failing to convey the property. HHO requested

“the equitable relief of specific performance” of the contract. In addition, HHO

alleged that it lost significant “potential revenue that it would have received had the

transaction been completed as anticipated.” It prayed to recover “all losses incident

and consequential to [the Kaiser Companies’] breach, including lost profits.”

The Kaiser Companies filed a third-party petition against Choudhury,

asserting various claims including misrepresentation, breach of contract, and fraud.

Choudhury filed a counterclaim against the Kaiser Companies. He sought to enforce

the contract as a third-party beneficiary and recover his commission.

After delays caused by Hurricane Harvey, an administrative abatement, and

Covid, the case went to trial in April 2022. Although during the pendency of this

–7– suit, there were other parties and other claims, only the contract issues between the

parties to this appeal were submitted to the jury. HHO argued to the jury that the

Kaiser Companies breached the contract by not closing the sale. The Kaiser

Companies argued that they could not have breached because HHO never tendered

the purchase money or mutually agreed to the inventory.

The jury charge contained six questions. The jury found that the Kaiser

Companies failed to comply with the contract and that their failure to comply was

not excused. It further found that HHO was at all times ready, willing, and able to

perform under the contract. The jury also found that HHO’s failure to tender

payment under the contract on or before March 31, 2015, was excused by the Kaiser

Companies’ failure to perform a material provision of the contract or repudiation of

the contract. The jury was asked to determine the amount of HHO’s lost profits and

found that amount was $3,877,583. Finally, the jury found that Choudhury was a

third-party beneficiary to the contract.

In its judgment, the trial court ordered that HHO is entitled to specific

performance of the contract. The court ordered the Kaiser Companies to “transfer

ownership and operation of the Houston grocery business and accompanying real

estate and all other contracted-for business assets to HHO, and [the Kaiser

Companies] shall pay the broker commission of $850,000.00 (from the sales

proceeds of $6,600,000.00) to Sharif Choudhury as he so directs.” The court also

–8– awarded damages in accordance with the jury’s verdict, ordering the Kaiser

Companies to pay lost profits damages of $3,877,583. The trial court awarded HHO

and Choudhury attorney’s fees and costs and conditional attorney’s fees in the event

of an appeal. The Court awarded HHO postjudgment interest on its lost profits

damages and attorney’s fees and costs. It awarded Choudhury prejudgment interest

on his $850,000 commission at a rate of 6% from May 1, 2015 through the date of

judgment, totaling just over $304,000, and postjudgment interest. The Kaiser

companies filed a motion for new trial and moved for judgment notwithstanding the

verdict. Their motions were overruled by operation of law.

In their appellate brief, the Kaiser Companies set out five issues, but they

actually raise more issues than that. Instead of referring to their issues by number,

we group them into categories by subject matter. The Kaiser Companies complain

of: (1) the sufficiency of the evidence to support the jury’s findings that they

breached the contract; (2) the sufficiency of the evidence that HHO was entitled to

specific performance; (3) the award of lost profits damages; (4) jury charge error in

Questions 1 and 4; (5) error in excluding three of their witnesses; (6) the award of

the broker fee to Choudhury as a third-party beneficiary; (7) the award of attorney’s

fees to HHO and Choudhury; and (8) the award of interest to HHO and Choudhury.

Breach of Contract

–9– The Kaiser Companies first argue there is no evidence, or alternatively

factually insufficient evidence, of the essential elements of breach of contract. The

elements of a breach of contract claim are: (1) the existence of a valid contract; (2)

performance or tender of performance; (3) breach by the defendant; and (4) damages

resulting from the breach. Oliphant Fin., LLC v. Galaviz, 299 S.W.3d 829, 834 (Tex.

App.—Dallas 2009, no pet.). The Kaiser Companies assert there is insufficient

evidence of element 2 (HHO’s performance or tender of performance) and element

3 (the Kaiser Companies’ breach).

This issue concerns the jury’s answers to Questions 1, 2, and 4. In Question

1, the jury found that the Kaiser Companies materially failed to comply with the

contract. In Question 2, it found their failure to comply was not excused by HHO’s

previous failure to comply with a material obligation of the same agreement or prior

repudiation of the agreement. In Question 4, the jury found that HHO’s failure to

tender payment under the contract on or before March 31 was excused by the Kaiser

Companies’ refusal to perform a material provision of the contract or repudiation of

the contract.

It is undisputed that the Kaiser Companies did not attend the closing or convey

the property to HHO. They contend their failure to close could not have been a

breach of contract, however, because HHO had a simultaneous obligation to tender

payment to the escrow agent at the closing. Thus, according to the Kaiser

–10– Companies, because HHO did not tender payment, they did not breach.2 In other

words, they argue that because neither of the parties performed the closing, neither’s

failure is a breach. The Kaiser Companies also assert that prior to their failure to

close, HHO repudiated the contract as a matter of law because it did not tender

payment at closing, and thus at the very least, the Kaiser Companies’ failure to

comply should be excused. Finally, they argue that HHO’s failure to tender payment

was not excused by the Kaiser Companies’ actions.

On an issue where the opposing party bears the burden of proof, we sustain a

legal sufficiency challenge to an adverse finding if our review of the evidence

demonstrates a complete absence of a vital fact, or if the evidence offered is no more

than a scintilla. Burbage v. Burbage, 447 S.W.3d 249, 259 (Tex. 2014). More than

a scintilla exists when the evidence would enable reasonable and fair-minded people

to reach different conclusions. Id. We regard evidence that creates a mere surmise

or suspicion of a vital fact as, in legal effect, no evidence. Id. We consider the

evidence in the light most favorable to the judgment, crediting favorable evidence if

reasonable jurors could, and disregarding contrary evidence unless reasonable jurors

2 The Kaiser Companies contend that HHO had two theories of how the Kaiser Companies breached the contract: (1) not completing the closing and conveying the property and (2) refusing to allow HHO to perform an inventory. They also challenge the sufficiency of the evidence to show they breached by not permitting an inventory. But HHO’s sole theory of breach as alleged in its live pleading was the Kaiser Companies’ failure to close and convey the property. It was the Kaiser Companies who asserted the lack of a mutually agreed inventory as a defensive theory.

–11– could not. Id. When a party attacks the factual sufficiency of the evidence on an

adverse finding on an issue upon which the other party had the burden of proof, we

examine all the evidence and set aside the judgment only if it is so contrary to the

overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v.

Bain, 709 S.W.2d 175, 176 (Tex. 1986).

Jurors are the sole judges of the credibility of the witnesses and the weight to

give their testimony. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).

Reviewing courts cannot impose their own opinions to the contrary. Id.

It is a general rule of equity jurisprudence in Texas that a party must show that

it has complied with its obligations under a contract to be entitled to specific

performance. DiGiuseppe v. Lawler, 269 S.W.3d 588, 594 (Tex. 2008). As a

consequence, a plaintiff seeking specific performance, as a general rule, must

actually tender performance as a prerequisite to obtaining specific performance. Id.

A corollary to this rule is that when a defendant refuses to perform or repudiates a

contract, the plaintiff may be excused from actually tendering its performance to the

repudiating party before filing suit for specific performance. Id. In such a

circumstance, a plaintiff seeking specific performance is excused from tendering

performance pre-suit and may simply plead that performance would have been

tendered but for the defendant’s breach or repudiation. Id. A repudiation or

anticipatory breach occurs when a party’s conduct shows a fixed intention to

–12– abandon, renounce, and refuse to perform the contract. Harrison v. Blue Mountain

Prop. Ventures LLC, No. 05-23-00583-CV, 2024 WL 4457019, at *5 (Tex. App.—

Dallas Oct. 10, 2024, no pet. h.) (mem. op.). (citing Hunter v. PriceKubecka, PLLC,

339 S.W.3d 795, 802 (Tex. App.—Dallas 2011, no pet.)). The repudiation must be

absolute and unconditional. Id.

Evidence showed that the Kaiser Companies did not merely fail to show up at

closing. There was evidence that prior to the closing date, the Kaiser Companies

announced their intention to refuse to perform under the agreement. By March 27,

their attorney informed Synergy Bank, the title company, and HHO that they were

not going to close, citing Mashood’s illness. HHO’s evidence suggested the Kaiser

Companies did not want to close because Mashood had not told his wife about the

sale and she opposed it. Then on March 30, Ackels sought an extension of the

closing date and there was evidence the Kaiser Companies wanted to change the

terms of the agreement. The evidence is sufficient to support the jury’s finding that

the Kaiser Companies materially failed to comply with the contract.

The Kaiser Companies contend that any failure to close the contract on their

part was excused by HHO’s prior conduct. They argue their breach was excused

because HHO failed to comply with two material obligations under the contract: (1)

failure to pay or tender the purchase price to the escrow agent at closing, and (2)

failure to mutually agree on the inventory.

–13– Regarding HHO’s payment of the purchase price, the Kaiser Companies argue

HHO had not done everything it needed to with respect to its loan funding. HHO

responds that it met all its obligations, and the fact that money did not exchange

hands at closing was the fault of the Kaiser Companies. These arguments involve

the Agreement of No Funding that HHO signed at closing.

The provision of the Agreement of No Funding at issue stated,

Notwithstanding the execution of the Loan Documents, Borrowers and Guarantors acknowledge that there are certain requirements of the Loans outstanding at this time and certain issues that need to be resolved, including but not limited to, the following:

1. Seller agreement to execute all documents necessary to consummate the sale of the property . . .; 2. Lender’s receipt and approval of the inventory count for the Harris County property that is part of the sale of the business; 3. Lender’s receipt and approval of recorded UCC-3 Termination Statements from Bayview Loan Services, LLC [for a certain UCC-1 Financing Statement]; 4. Lender’s receipt and approval of an executed Release of Lien from Bayview Loan Services, LLC releasing Deed of Trust in the original principal amount of $380,000.000 . . . ; 5. Lender’s receipt and approval of documentation confirming $1,000,000.00 life insurance coverage in place on the life of Nihaya Qaddura; 6. Lender’s receipt and approval of an original recordable Warranty Deed executed by Frial Mrouh Atiyeh, as grantor, to HHO . . . as grantee, conveying real property in Dallas County, Texas commonly known as 13426 Floyd Circle, Dallas, Texas, 75234; and 7. Any other items as deemed necessary by the Lender.

Some of these items involved HHO’s collateral for the loans.

–14– Synergy Bank’s Chief Lending Officer, William Jefferson Bachus, testified

that he was familiar with the two loans in this case. Bachus testified the Agreement

of No Funding meant that the loans were approved, but in order to close certain items

need to be addressed. He says the bank does “no funding agreements” all the time

for a variety of reasons, including outstanding items and clarification of issues.

Bachus testified the bank asked for the agreement because the seller had not allowed

the bank to do an inventory on the Houston property.

Bachus testified that all conditions for the loan had been met except for the

ones the Kaiser Companies controlled, executing the closing documents and

permitting the inventory count. The number one item to be resolved was that the

seller had to execute all closing documents to consummate the sale. That never

happened. The inventory was not done because HHO’s representatives were kicked

out of the store. According to Bachus, the other items had been taken care of. He

saw an email that the lien was released and the preexisting debt paid off.

Shoukry also testified about the Agreement of No Funding. He said that of

the seven items, the ones that were HHO’s responsibility had been completed as of

closing on March 30. Shoukry and Choudhury both indicated the loan was paid

before closing date. Synergy Bank never told Shoukry it was not willing to fund the

transaction.

–15– The Kaiser Companies point to evidence that some of HHO’s requirements

were not met by the closing date. For example, the life insurance policy required for

Nihaya, although effective March 27, 2015, was issued after closing date. Also, the

executed release of lien from Bayview loan was dated after closing, on April 6, 2015.

There was conflicting evidence on the issue of whether HHO’s failure to tender

payment was a result of actions by the Kaiser Companies. The jury was entitled to

credit the evidence indicating that HHO did not tender payment because the Kaiser

Companies had not met their responsibilities.

The Kaiser Companies also argue HHO failed to mutually agree on the

inventory and that failure excused their breach. As discussed above, there was

evidence the inventory did not take place because the Kaiser Companies kicked

HHO out of the store and informed it the inventory would not be taking place. The

Kaiser Companies blamed HHO for the failure of the inventory, claiming that HHO

did not give them proper notice it would be there to review the inventory and that

there was not enough time to complete the inventory before the closing date. We

defer to the jury’s determination regarding the credibility of this evidence. The

evidence is sufficient to support the jury’s finding that the Kaiser Companies’ failure

to comply with the contract was not excused.

Finally, the Kaiser Companies contend the evidence is legally insufficient to

support the jury’s finding in Question 4 that HHO’s failure to tender payment was

–16– excused by the Kaiser Companies’ refusal to perform a material provision of the

contract or repudiation of the contract. Their argument is premised on the idea that

Question 4 was erroneous and thus we should evaluate this issue against the charge

that should have been given. See, e.g., St. Joseph Hosp. v. Wolff, 94 S.W.3d 513,

530 (Tex. 2002) (because trial court submitted erroneous definition of joint

enterprise over proper objection, we measure legal sufficiency of evidence under

definition that should have been given). The Kaiser Companies proposed, but did

not get, an instruction that would have required HHO to show tender of performance

would have been “a useless act, an idle ceremony, or wholly nugatory.” They argue

HHO’s tender of the purchase price would not have been a useless act. As will be

discussed later in the opinion, the trial court gave a legally correct definition of

repudiation in the charge. We need not evaluate whether tender of performance

would have been a useless act. But given the Kaiser Companies’ announcement that

it would not close the deal and its failure to attend the closing, the evidence would

support such a finding. The evidence is legally and factually sufficient to prove the

Kaiser Companies refused to close the transaction and repudiated the contract in the

days prior to the scheduled closing.

Specific Performance

Next, the Kaiser Companies assert HHO was not entitled to specific

performance for various reasons. We disagree.

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

showing of breach of contract. Stafford v. S. Vanity Magazine, Inc., 231 S.W.3d

530, 535 (Tex. App.—Dallas 2007, pet. denied). A party suing for breach of a

contract involving the sale of real estate must elect to sue for either money damages

or specific performance. Goldman v. Olmstead, 414 S.W.3d 346, 361 (Tex. App.—

Dallas 2013, pet. denied). If the party sues for damages, he has elected to treat the

contract as terminated by the breach and to seek compensation for that breach. Id.

If the party sues for the equitable remedy of specific performance, he affirms the

contract and requests the trial court to effectuate the agreement. Id. To be entitled

to specific performance, a plaintiff must plead and prove (1) compliance with the

contract including tender of performance unless excused by the defendant’s breach

or repudiation, and (2) the readiness, willingness, and ability to perform at relevant

times. Smith v. Dass, Inc., 283 S.W.3d 537, 545 (Tex. App.—Dallas 2009, no pet.).

The Kaiser Companies first argue that because there was a “time is of the

essence” provision in the contract, HHO had to actually tender payment to get

specific performance. They rely on the case of Wilson v. Klein, 715 S.W.2d 814,

822 (Tex. App.—Austin 1986, writ ref’d n.r.e.), which states that when a contract

specifies that time is of the essence, the buyer must make an actual tender of the

purchase price to be entitled to specific performance. This is not a bright-line rule,

however. This Court factually distinguished Wilson in 17090 Parkway, Ltd. v.

–18– McDavid, 80 S.W.3d 252, 256–57 (Tex. App.—Dallas 2002, pet. denied). In

Wilson, the buyer and seller had a dispute over how to calculate the purchase price

of land under their contract. The buyer sued for specific performance and offered to

pay the higher price if the trial court decided that was correct. The court found that

the buyer had to actually tender the disputed price because the seller was prepared

to convey the property. Id. In McDavid, we upheld a judgment awarding specific

performance of a real estate contract with a time is of the essence provision where

there was no actual tender. We concluded that actual tender was excused, despite

the time is of the essence provision because the seller openly refused to perform its

part of the contract. Id. at 257. Here, where the Kaiser Companies expressed their

intent not to close the contract and prevented HHO’s lender from taking an

inventory, actual tender was not required.

The Kaiser Companies also argue HHO is not entitled to specific performance

because the evidence is legally and factually insufficient to support the jury’s

findings that HHO was ready, willing, and able to perform. The jury was asked if

HHO was ready, willing, and able to perform at three specific times—on or before

March 31, 2015, at all times from April 1, 2015 through May 4, 2022, and today.

They answered “yes” for each time period.

The Kaiser Companies make several arguments about why the evidence in

this issue is insufficient. For one, they repeat their argument about the Agreement

–19– of No Funding to assert that HHO never had the financing for the transaction. As

previously discussed, there was sufficient evidence from which the jury could have

determined that HHO had complied with its obligations under that document and the

bank was ready to fund the transaction at the time of closing but for the Kaiser

Companies’ failure to meet their obligations. Further, Bachus with Synergy Bank

testified the bank would fund the loan at the time of trial if the borrower’s financial

condition had not changed. And Choudhury indicated that in his role as broker he

sometimes gets financing for his clients. He said he was willing and capable of

getting the deal funded if HHO did not get funding from the bank. Shoukry also

stated that he had the ability to buy the property. He had bank financing set up “as

a backup.”

Based on the premise that HHO did not have financing for the purchase, the

Kaiser Companies also contend HHO had no evidence that it actually had the

purchase money of $6.6 million at any of the times required by Question 3. Because

there was sufficient evidence that HHO had financing for the transaction, we need

not consider whether it proved it could pay cash for the transaction on its own.

Next, the Kaiser Companies make arguments that involve the SBA loan. The

loan applicant on the SBA paperwork was a “Company to be Formed” or “CTBF.”

HHO later formed the new company, World Gourmet Houston, to operate the

Houston store, and it was the borrower. The Kaiser Companies argue World

–20– Gourmet Houston’s financing cannot satisfy HHO’s obligation to obtain financing.

We cannot find where in the record the Kaiser Companies raised this argument in

the trial court. See Warren v. State Farm Lloyds, No. 05-21-00970-CV, 2023 WL

2237079, at *3 (Tex. App.—Dallas Feb. 27, 2023, no pet.) (mem. op.) (setting out

how to preserve legal and factual sufficiency challenges following jury trial). In any

event, the evidence showed HHO was a family business, and both HHO and World

Gourmet Houston were wholly owned by Nihaya. The jury could have determined

that the loan to World Gourmet Houston was to pay the purchase price under HHO’s

contract with the Kaiser Companies.

Finally, the Kaiser Companies contend HHO was not ready, willing, and able

to perform because there is no evidence the SBA loan was approved by the SBA.

But Bachus testified his bank was a preferred lender with the SBA, known as a PLP

lender. The SBA gives the bank approval authority. The loan was approved by the

SBA when the bank approved it. We conclude the evidence is legally and factually

sufficient to show that HHO was ready, willing, and able to perform.

In addition, the Kaiser Companies argue that HHO was not entitled to specific

performance because the contract required HHO to submit the dispute to mediation

before filing suit. They rely on the following provision in the contract:

DISPUTE RESOLUTION: The parties agree to negotiate in good faith in an effort to resolve any dispute related to this contract that may arise. If the dispute cannot be resolved by negotiation, the parties will submit the dispute to mediation before resorting to arbitration or litigation and

–21– will equally share the costs of a mutually acceptable mediator. This paragraph survives termination of this contract. This paragraph does not preclude a party from seeking equitable relief from a court of competent jurisdiction.

A condition precedent is an event that must happen or be performed before a

right can accrue to enforce an obligation. Aflalo v. Harris, No. 05-21-01057-CV,

2023 WL 2522206, at *8 (Tex. App.—Dallas March 15, 2023, pet. denied) (mem.

op). In construing a contract, forfeiture by finding a condition precedent is to be

avoided when another reasonable reading of the contract is possible. Id. Reading

the provision as a whole, a party may seek equitable relief from a court of competent

jurisdiction without first submitting the dispute to mediation. Id. Here, HHO sought

specific performance of the contract, an equitable remedy. A reasonable reading of

the contract permits a suit for specific performance without first going to mediation.

The Kaiser Companies have not shown that HHO was not entitled to specific

performance.

Lost Profits

The Kaiser Companies also challenge the award of lost profits damages. They

first challenge the sufficiency of the evidence of lost profits as if HHO had sought

damages instead of specific performance. But they also assert that the methodology

used by HHO’s expert on lost profits, which was based on the Kaiser Companies’

actual profits, was no evidence of the equitable monetary compensation appropriate

in a specific performance case.

–22– As stated, in a breach of contract case, the general rule is that damages

constitute an alternative remedy available only when specific performance is not

sought or is not available. Paciwest, Inc. v. Warner Alan Props., LLC, 266 S.W.3d

559, 575 (Tex. App.—Fort Worth 2008, pet. denied). However, in narrow

circumstances, the relief associated with specific performance may include monetary

compensation where it is necessary to place the parties in the same position as if the

contract had been performed in full. Scott Pelley P.C. v. Wynne, No. 05-15-01560-

CV, 2017 WL 3699823, at *14 (Tex. App.—Dallas Aug. 28, 2017, pet. denied)

(mem. op.); Goldman, 414 S.W.3d at 361–62. The rationale for the compensation

is that the contract is being enforced retrospectively and the equities are adjusted

accordingly. Goldman, 414 S.W.3d at 362. Therefore, when a trial court orders

specific performance of a contract to purchase real property, the court will enforce

the equities in such a manner as to put the parties as nearly as possible in the position

they would have occupied had the conveyance been made when required by contract.

Id. To relate the performance back to the contract date, the trial court may equalize

any losses occasioned by the delay by offsetting them with money payments for

items such as profits. Id.; Heritage Housing Corp. v. Ferguson, 674 S.W.2d 363,

366 (Tex. App.—Dallas 1984, writ ref’d n.r.e.).

The jury charge asked the jury to determine the amount of money HHO was

entitled to as if this was a breach of contract case in which the plaintiff elected

–23– monetary damages instead of specific performance. See, e.g., Saden v. Smith, 415

S.W.3d 450, 460 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). Question 5

asked, “What sum of money, if any, if paid now in cash, would fairly and reasonably

compensate [HHO] for its damages, if any that resulted from [the Kaiser

Companies’] failure to comply” with the contract? The jury was asked to consider

“[l]ost profits that were a natural, probable, and foreseeable consequence of [the

Kaiser Companies’] failure to comply.” The charge defined “lost profits” as “the

net profits of a business after deducting all expenses and costs.” It further instructed

that the amount of loss must be shown by “competent evidence with reasonable

certainty.” The jury determined that HHO’s lost profits were $3,877,583, the

amount provided by HHO’s expert on damages.

HHO’s expert was CPA Bryan Rice. Rice’s analysis was based on the

Houston store’s actual profits after the closing date until the end of 2021. He

analyzed financial statements for the grocery store and started with the store’s

reported pretax income for the years 2015 through 2021. He testified that, to get a

truer measure of net income, he added back expenses that were discretionary on the

part of the owner, such as Mashood’s salary and charitable donations. He also added

back interest expenses the store was incurring. The resulting number was adjusted

reported pretax income. He prorated the amount for 2015 because HHO would not

have owned the store for the whole year. Rice then reduced that amount by the

–24– amount of interest HHO would have paid on their purchase loans. $3,887,583 was

his opinion of HHO’s lost profits as a result of not being able to acquire the grocery

store. That amount reflects the normalized net income of the grocery store business

from April 1, 2015 to December 31, 2021, less the interest HHO would have paid

on its loans.

Rice believed his calculation met the definition of lost profits with reasonable

certainty. He testified that his calculation was not a traditional lost profits analysis.

This was more of a loss of opportunity. HHO did not get the opportunity to buy the

grocery business. His calculation assumed HHO would have had the opportunity to

make the same amount of profits as the Kaiser Companies. Rice did not look at

HHO’s business model. He did not think there was a need to compare the Houston

business to the stores HHO operates. Rice stated, “The results of the business [HHO]

wanted to buy speak for themselves, and that’s pretty much the end of it.” Rice

thought it reasonable to assume HHO would have done mostly the same things as

the Kaiser Companies.

While it was appropriate for HHO to recover both monetary compensation

and specific performance, it was not appropriate for HHO to recover lost profits

under a traditional lost profits analysis. HHO’s monetary award was supposed to

enforce the equities so as to put it as nearly as possible in the position it would have

occupied had the conveyance been made when required by the contract. This is not

–25– the question the jury was asked, and HHO’s expert’s methodology did not provide

any evidence of an equitable accounting. It considered the actual profits made by

the Kaiser Companies, with some adjustments. This was no evidence of the

monetary amount that would put HHO in the position it would have been if HHO

had acquired and operated the grocery store between April 1, 2015, and the end of

2021. See Simmons v. White Knight Dev., LLC, No. 10-21-00309-CV, 2023 WL

5624126, at *10 (Tex. App.—Waco Aug. 30, 2023, pet. filed) (mem. op.)

(modifying judgment to delete monetary award in specific performance case where

court awarded actual/consequential damages). As a result, we reverse and render

judgment that HHO take nothing in damages for lost profits. We also delete the

award of postjudgment interest on that amount.

Alleged Jury Charge Error

The Kaiser Companies next complain of alleged jury charge error in

Questions 1 and 4. We conclude there was no error.

A trial court must submit in its charge to the jury all questions, instructions,

and definitions raised by the pleadings and evidence. Hyundai Motor Co. v.

Rodriguez, 995 S.W.2d 661, 663–64 (Tex. 1999). We review a trial court’s decision

to submit or refuse a particular instruction under an abuse of discretion standard.

Thota v. Young, 366 S.W.3d 678, 687 (Tex. 2012). The trial court has considerable

discretion to determine proper jury instructions, and if an instruction might aid the

–26– jury in answering the issues presented to them, or if there is any support in the

evidence for an instruction, the instruction is proper. Id.

Question 1 asked the jury if the Kaiser Companies failed to comply with the

contract. It was accompanied with an instruction that a failure to comply must be

material and the circumstances to consider in determining whether a failure to

comply is material. The jury answered, “Yes.”

The Kaiser Companies contend Question 1 presented a “classic Casteel

problem.” See Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000). In

Casteel, the Texas Supreme Court ruled that when a single broad-form liability

question commingles valid and invalid liability grounds and the appellant’s

objection is timely and specific, the error is harmful and a new trial is required when

the appellate court cannot determine whether the jury based its verdict on an invalid

theory. Harris Cnty. v. Smith, 96 S.W.3d 230, 232–33 (Tex. 2002); Casteel, 22

S.W.3d at 389. The Kaiser Companies argue they are entitled to a new trial because

it is impossible to determine that the jury’s verdict was actually based on a valid

liability theory.

In their opening brief on this issue, the Kaiser Companies do not specify what

invalid theory of breach of contract was submitted to the jury. This issue has thus

not been adequately briefed. See TEX. R. APP. P. 38.1(i) (brief must contain a clear

–27– and concise argument for the contentions made, with appropriate citations to

authorities and to the record).

Nevertheless, it is apparent from their reply brief that their Casteel argument

involves the inventory of the Houston store. Casteel’s presumed harm rule applies

when a jury charge permits the jury to reach a finding based on a legally invalid

theory or allegation presented to the jury. Horton v. Kan. City S. Ry., 692 S.W.3d

112, 143 (Tex. 2024). In other words, the presumed-harm rule applies when a jury

charge permits a jury to consider erroneous matters. Id. at 144; Harris Cnty., 96

S.W.3d at 233. Here, the Kaiser Companies have not shown that Question 1

permitted the jury to consider an invalid theory of breach of contract. Although they

assert HHO had two theories of breach of contract—failure to close and convey the

property and refusing to permit it to conduct an inventory—HHO’s only theory of

breach of contract was that the Kaiser Companies breached the contract by failing

to attend the closing and convey the property. Their pleadings did not allege the

Kaiser Companies breached the contract by failing to permit an inventory. The

Kaiser Companies raised the issue of the lack of inventory in their answer. They

alleged a mutually agreed inventory was a condition precedent to HHO’s right to

enforce the contract. We conclude there is no Casteel error in this case.

Question 4 asked if HHO’s failure to tender payment under the terms of the

contract on or before March 31, 2015 was excused by the Kaiser Companies’ refusal

–28– to perform a material provision of the contract or repudiation of the contract, if any.

The jury answered “Yes.” As mentioned before, the Kaiser Companies contend the

court erred by not including their definition of “repudiation” in connection with this

question. They requested the following instruction:

The refusal or repudiation must amount to making [HHO’s] performance a useless act, idle ceremony, or wholly nugatory. It would require that the “situation of the property is such that an actual tender would have be a useless act, an idle ceremony, or wholly nugatory. For example, actual tender by a buyer was unnecessary when the seller had conveyed the property to a third person, placing the seller in default of his contract with the buyer.

The trial court denied the request.

The Kaiser Companies argue that without their requested instruction, the jury

considered only the dictionary definition of repudiation. The charge contained an

instruction on repudiation in connection with Question 2, however, which asked

whether the Kaiser Companies’ failure to comply with the contract was excused.

The charge instructed: “A party repudiates an agreement when he indicates by his

words or actions, that he is not going to perform his obligations under the agreement

in the future, showing a fixed intention to abandon, renounce, and refuse to perform

the agreement.” This instruction was an accurate statement of the law. See

Harrison, 2024 WL 4457019, at *5; Hunter, 339 S.W.3d at 802. We cannot

conclude it was error for the trial court to refuse to give the Kaiser Companies’

requested instruction.

–29– Exclusion of Witnesses

The Kaiser Companies also complain of the trial court’s exclusion of three

witnesses they wanted to present, Henry Ackels and two experts. We review a trial

court’s decision to admit or exclude evidence for an abuse of discretion. Fleming v.

Wilson, 610 S.W.3d 18, 21 (Tex. 2020). A party who fails to make, amend, or

supplement a discovery response, including a required disclosure, in a timely manner

may not offer the testimony of a witness who was not timely identified unless the

court finds that there was good cause for the failure to timely make, amend, or

supplement the discovery response, or the failure will not unfairly surprise or

unfairly prejudice the other party. TEX. R. CIV. P. 193.6(a). The burden of

establishing good cause or lack of unfair surprise or prejudice is on the party seeking

to call the witness. Id. 193.6(b).

Ackels was an attorney for the Kaiser Companies when the contract was

supposed to close in 2015 and when the lawsuit was filed, but he withdrew from the

case in 2020, well before the April 2022 trial. HHO initially designated him as a

fact witness and filed a motion to compel his deposition. The Kaiser Companies

opposed him being deposed and the trial court agreed with them. In October 2018,

ahead of an earlier trial setting, the Kaiser Companies, through Ackels, filed a

Motion in Limine asking the trial court to prohibit HHO from calling him as a

–30– witness for the same reasons the court denied HHO’s request to take his deposition.

The trial court granted the motion.

After the Kaiser Companies indicated during the April 2022 pretrial

conference that they were going to call Ackels as a fact witness, HHO filed a motion

to exclude his testimony. It asserted the Kaiser Companies were estopped from

calling Ackels as a witness because they had previously precluded HHO from

deposing him and argued he could not be called as a fact witness. HHO also argued

that the Kaiser Companies had not designated Ackels as a fact witness, only as an

expert witness on attorney’s fees. Finally, HHO noted that all parties had previously

agreed to exclude undisclosed lay witnesses.

In their written response, the Kaiser Companies argued HHO had used

Ackels’s alleged statements and his emails to its advantage and had opened the door

to his testimony. They therefore asserted he should be permitted to testify as a

rebuttal witness. They further argued that there was good cause to allow his

testimony and HHO would not be prejudiced. The trial court ruled that Ackels would

not be allowed to testify, noting the Kaiser Companies had “vigorously thought that

he was not a fact witness” and could not change their mind about that at the time of

trial. The Kaiser Companies made an offer of proof regarding his testimony.

The Kaiser Companies characterized Ackels as a rebuttal witness, suggesting

that his testimony could not have been anticipated before trial. See TEX. R. CIV. P.

–31– 192.3(d) (party not required to disclose in discovery identity of rebuttal witness the

necessity of whose testimony cannot reasonably be anticipated before trial). They

argue that while they initially thought Ackels was not a fact witness because of the

attorney–client relationship, that “changed at trial, given the death of the principal,

Mr. Kaiser” and Ackels “became a fact witness” during trial. Mashood died in 2019,

and Ackels withdrew from the case in 2020, both long before trial. HHO notes that

the Kaiser Companies’ most recent disclosures were in 2021 and did not designate

Ackels as a fact witness. Under these circumstances, where the Kaiser Companies

resisted Ackels’s designation as a fact witness for years, could have anticipated the

need for his testimony well before trial, and failed to update their disclosures, the

trial court did not abuse its discretion in excluding Ackels’s testimony.

Next, the Kaiser Companies contend the trial court erred in excluding two

expert witnesses, John Hart and Alan Tolmas, on grounds they were not timely

designated. The Kaiser Companies wanted Hart to testify about SBA loans and

Tolmas to testify about lost profits.

On November 3, 2021, HHO filed a motion to strike Hart and Tolmas because

they were not timely designated. HHO asserted the trial court’s February 3, 2017

Amended Docket Control Order required all experts to be designated by June 15,

2017, and Hart and Tolmas were not designated until September 30, 2021. In

addition, the Kaiser Companies failed to produce reports for the new experts and the

–32– time for expert witness depositions had passed. HHO argued the Kaiser Companies

could not establish good cause for their failure to timely designate the experts or

establish the lack of unfair surprise or prejudice.

On appeal, the Kaiser Companies argue the 2017 scheduling order was

ineffective as a matter of law. The case was set for trial in September 2017, but due

to Hurricane Harvey, it was rescheduled for March 2018, and later rescheduled

multiple times. The Kaiser Companies contend that when the trial court granted a

continuance, it nullified the prior discovery deadlines and therefore the trial court

abused its discretion in using those deadlines to exclude the experts.

In their response to HHO’s motion, however, the Kaiser Companies did not

make this argument. They argued only that there was no unfair surprise or prejudice

because they designated the experts more than six months before trial and HHO

could have sought their depositions. They did not inform the trial court that they

believed the scheduling order deadline for expert designation was a nullity. There

is nothing in the record to show that the trial court considered its prior deadlines to

be null. As a general rule, a party is required to present a complaint to the trial judge

before being allowed to raise the issue on appeal. Gumble v. Grand Homes 2000,

L.P., 334 S.W.3d 1, 4 (Tex. App.—Dallas 2007, no pet.); see TEX. R. APP. P. 33.1.

We conclude the Kaiser Companies have not preserved error in the exclusion of their

two experts for appellate review.

–33– While the Kaiser Companies have not expressly argued on appeal that the

court should have allowed the witnesses to testify because there was no unfair

surprise or prejudice, in their harm analysis, they mention that HHO could not have

been unfairly surprised by either witness due to the subject matter of their testimony.

The fact that a party needs an expert for its defense does not establish that other

parties will not be unfairly surprised by the late designation of an expert. PopCap

Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 718 (Tex. App.—Dallas 2011,

pet. denied). Nor does offering other parties the opportunity to depose a late-

designated expert ensure the absence of unfair surprise or prejudice. Id. It was within

the trial court’s discretion to determine that permitting these experts to testify would

unfairly surprise or prejudice HHO. In addition, because we have determined that

the award of lost profits damages should be reversed, the Kaiser Companies cannot

demonstrate that they were harmed by the inability to call Tolmas on the issue of

lost profits.

Choudhury’s Right to Recover on the Contract

Next, the Kaiser Companies challenge the relief granted to Choudhury. They

do not challenge the jury’s finding that he was a third-party beneficiary to the

contract. The Kaiser Companies argue he needed to obtain additional findings that

they breached contractual duties to him, that he performed all that was required of

–34– him, and that any breach caused him damages, and because he did not, he waived

his right to relief.

A person who is not a party to a contract may sue for damages caused by its

breach if the person qualifies as a third-party beneficiary. First Bank v. Brumitt, 519

S.W.3d 95, 102 (Tex. 2017). A person seeking to establish third-party beneficiary

status must demonstrate that the contracting parties intended to secure a benefit to

that third party and entered into the contract directly for the third party’s benefit. Id.

Choudhury did not allege the Kaiser Companies breached a contract with him; he

alleged he was the third-party beneficiary of the contract between HHO and the

Kaiser Companies. HHO obtained findings that the Kaiser Companies breached the

contract between them without excuse. It was not necessary for Choudhury, a non-

party to the contract, to obtain additional findings.

Attorney’s Fees and Interest

Finally, the Kaiser Companies contend that we should reverse the awards of

attorney’s fees and interest to HHO and Choudhury. They make several arguments

about attorney’s fees, and they are supported by minimal argument and authorities.

In light of our resolution of their prior issues, we need not address the Kaiser

Companies’ argument that HHO and Choudhury are not entitled to attorney’s fees

and interest on those fees because they are not prevailing parties. See Dairyland

Cnty. Mut. Ins. Co. v. Childress, 650 S.W.2d 770, 775 (Tex. 1983) (third-party

–35– beneficiary who could enforce contract to which he is not party may also sue for

attorney’s fees under civil practice and remedies code § 38.001); see Fidelity & Dep.

Co. of Md. v. Concerned Taxpayers of Lee Cnty., Inc., 829 S.W.2d 923, 928 (Tex.

App.—Austin 1992, no writ).

The Kaiser Companies complain about the attorney’s fees declarations

submitted by HHO and Choudhury. First, they argue that HHO’s declaration

improperly purports to establish the reasonableness of fees billed in this case by

HHO’s prior law firm. To prove its attorney’s fees, HHO offered a declaration from

its attorney Jennifer Richards and billing records. Richards stated she had personal

knowledge of the legal work performed on HHO’s behalf in this case and was

qualified to testify about the usual and customary, reasonable and necessary fees for

the work performed. She reviewed the billing statements of the prior firm. Richards

stated the attorney’s fees reflected in the billing statements of her firm and those

charged by HHO’s prior legal counsel were reasonable and necessary. In addition,

Richards segregated the fees that were incurred solely in connection with a tort claim

against a prior defendant. Richards gave her declaration as an expert on attorney’s

fees, and an expert is not required to have personal knowledge of the matters about

which she testified. See McCafferty v. McCafferty, No. 05-16-00587-CV, 2017 WL

3124470, at *4 (Tex. App.—Dallas July 24, 2017, no pet.) (mem. op.). An expert

–36– on attorney’s fees may review another attorney’s file and offer an opinion that the

fees charged for the work were reasonable and necessary. Id.

The Kaiser Companies contend HHO did not actually segregate HHO’s fees

for contract and tort claims. But they provide no explanation for their contention.

Richards’s declaration specifies which fees were not included because they were

incurred for the tort claim. Further, the attached billing records highlights those fees.

The Kaiser Companies’ contention lacks merit.

The Kaiser Companies also assert the affidavit by Choudhury’s attorney in

support of his fees “fails to segregate fees except in a conclusory manner.” They fail

to specify in what way the affidavit was conclusory. They merely cite the Rohrmoos

case which provides, “General, conclusory testimony devoid of any real substance

will not support a fee award.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP,

578 S.W.3d 469, 501 (Tex. 2019). Choudhury’s attorney’s affidavit segregates

attorney’s fees into categories by cause of action, and we do not find the segregation

to be conclusory.

Next, the Kaiser Companies argue that in the event of a partial rendition, we

are required to reverse the fee award so proper segregation of claims can occur.

HHO and Choudhury have segregated their fees as explained above. The Kaiser

Companies do not specify what further segregation would need to occur.

–37– In addition, the Kaiser Companies contend both fee declarations fail to

analyze the factors Texas courts use in determining the lodestar reasonableness and

necessity of fees. See id. at 501–02. Under the lodestar method, the first step in

determining a reasonable attorney’s fee is to determine the reasonable hours spent

by counsel and a reasonable hourly rate. Id. at 501. The product of these amounts

is the lodestar and it is presumptively reasonable. Id. at 496. The factfinder may

adjust the lodestar up or down if relevant factors indicate an adjustment is necessary

to reach a reasonable fee. Id. at 501. Here, it appears counsel for HHO and

Choudhury sought only their base lodestar, and the Kaiser Companies do not

contend otherwise. We cannot conclude any other factors needed to be analyzed in

the fee declarations.

Finally, the Kaiser Companies challenge the awards of interest in the

judgment. As stated, because we are reversing and rendering judgment to delete the

award of lost profits damages, we likewise delete the award of postjudgment interest

on the lost profits damages.

The Kaiser Companies contest the award of interest to Choudhury on his

broker’s commission. The judgment awards Choudhury prejudgment interest on his

$850,000 commission at a rate of 6% from May 1, 2015 to the date of judgment,

May 27, 2022, for a total of $304,253.42. It also awards him postjudgment interest

on the $850,000 broker’s fee and on the $304,253.42 prejudgment interest, as well

–38– as on his attorney’s fees and costs. The Kaiser Companies contend Choudhury is not

entitled to interest on the commission because the condition precedent for his

broker’s fee has not been met. We agree that the award of interest to Choudhury on

the amount of his commission is improper. Under the contract, the Kaiser

Companies were required to pay Choudhury $850,000 out of the proceeds they

received after the closing. The judgment does not directly award Choudhury

$850,000; it orders the Kaiser Companies to pay him his commission from the sales

proceeds after closing, as the contract specified.

Choudhury responds that because this was a specific performance case, the

trial court could award prejudgment interest to enforce the equities and put him in

the position he would have been in had the contract been performed. While a trial

court may award equitable prejudgment interest on a monetary award grounded in

specific performance, see Great Western Drilling, Ltd. v. Pathfinder Oil & Gas, Inc.,

No. 11-14-00206-CV, 2020 WL 373096, at *12 (Tex. App.—Eastland Jan. 23, 2020,

pet. dism’d) (mem. op.), here there is no monetary award to Choudhury for his

commission. The trial court calculated interest on $850,000, but the judgment did

not award Choudhury $850,000. But because there was no monetary award to

Choudhury for his commission, there can be no pre- or postjudgment interest earned

on the amount of the commission. We conclude the trial court abused its discretion

in awarding Choudhury interest on $850,000. We reverse that portion of the trial

–39– court’s judgment and render judgment deleting the award of $304,253.42 in

prejudgment interest and deleting the award of postjudgment interest on the

$850,000 broker’s commission and on the $304,253.42 prejudgment interest.

Conclusion

In summary, we affirm in part and reverse and render in part. We reverse the

award of lost profits damages in the amount of $3,877,583 to HHO and render

judgment deleting that award, along with postjudgment interest on that amount. We

reverse the award of interest to Choudhury on his broker’s commission and render

judgment deleting the award of $304,253.42 in prejudgment interest and deleting the

award of postjudgment interest on the $850,000 broker’s commission and on the

$304,253.42 prejudgment interest. In all other respects, we affirm the trial court’s

judgment.

/Amanda L. Reichek// 221160f.p05 AMANDA L. REICHEK JUSTICE

–40– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

WORLD FOOD IMPORTS, INC., On Appeal from the 191st Judicial AND KGF WORLD FOOD District Court, Dallas County, Texas WAREHOUSE, INC., Appellants Trial Court Cause No. DC-15-05428. Opinion delivered by Justice No. 05-22-01160-CV V. Reichek. Justices Partida-Kipness and Breedlove participating. HHO UNITED GROUP, INC., AS ASSIGNEE OF NIHAYA QADDURA AND SHARIF CHOUDHURY, Appellees

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court's judgment awarding lost profits damages to HHO United Group, Inc. in the amount of $3,877,583 and RENDER judgment deleting that award, as well as the postjudgment interest on that amount. We REVERSE that portion of the trial court’s judgment awarding prejudgment interest to Sharif Choudhury in the amount of $304,253.42 and RENDER judgment deleting that award. We REVERSE that portion of the trial court’s judgment awarding Sharif Choudhury postjudgment interest on his broker commission of $850,000 and on his award of $304,253.42 prejudgment interest and RENDER judgment deleting those awards. In all other respects, the trial court's judgment is AFFIRMED.

It is ORDERED that appellees HHO United Group, Inc., as assignee of Nihaya Qaddura, and Sharif Choudhury recover their costs of this appeal and the full amount of the trial court’s judgment, as modified by this Court, from appellants World Food Imports, Inc., and KGF World Food Warehouse, Inc. and from the cash deposits in lieu of supersedeas bond. After all costs have been paid, the clerk of the

–41– District Court is directed to release the balance, if any, of the cash deposits to World Food Imports, Inc. and KGF World Food Warehouse, Inc.

Judgment entered this 23rd day of October, 2024.

–42–