Specific performance, Deemed findings, and Alternative lesser relief
There are three holdings in DiGiuseppe v.Lawler that are noteworthy. First, the Texas Supreme Court, reaffirms the principle that a party who obtains a favorable judgment need not file a separate notice of appeal to preserve its right to judgment on a lesser alternate ground of recovery in the event an appellate court reverses the trial court's judgment.
Second, the majority (5-4) holds that a party seeking specific performance has the burden to plead and prove that he he was ready, willing, and able to perform the contract at the time his performance was due.
Finally, the majority holds that a finding of "ready, willing, and able" could not be deemed under Rule 279 when no "ready, willing, and able" question was submitted to the jury. The plaintiff did not conclusively establish this essential element on the evidence submitted. And, a finding could not be deemed because there must be at least one element of the ground of recovery submitted to the jury and that element must be "necessarily referable" to that ground of recovery. The court concluded that the finding as to whether the plaintiff complied with the contract is not essential to, or necessarily referable to, the plaintiff's claim for specific performance. Accordingly, the plaintiff failed to obtain findings necessary to support specific performance. The majority opinion may be found at this link. Justice Green's dissenting opinion may be found here. For other insightful comments regarding this opinion, see Todd Smith's blog or Don Cruse's blog.
