Appellate Law

Texas Supreme Court Orders & Opinion 10/17/08

By D. Todd Smith

The Texas Supreme Court issued one opinion with this week's regular orders.  In DiGiuseppe v. Lawler (No. 04?0641), the Court (Third Court of Appeals Justice Alan Waldrop—appointed under Tex. Gov't Code § 22.005—joined by Justices Hecht, Wainwright, Brister, and Willett) held that a real-estate purchaser seeking specific performance of the contract had to prove that he was ready, willing, and able to perform and request a jury question on that issue.  The supreme court affirmed to the extent the court of appeals reached the same conclusion and determined that the contract did not alter that obligation.

The Court reversed in part, however, based on the court of appeals' holding that the purchaser had waived an alternate ground of recovery by failing to file a cross-notice of appeal.  In doing so, the Court reaffirmed that "a litigant who has obtained a favorable judgment and has no reason to complain in the trial court is not required to raise an issue regarding an alternate ground of recovery until an appellate court reverses the judgment."

Justice Green (joined by Chief Justice Jefferson and Justices O'Neill and Johnson) dissented on the specific-performance issue.  Justice Medina did not participate in the decision.

This case is unusual in that Justice Waldrop was not only appointed to break what would have been a 4-4 tie, but he wrote the majority opinion.  Also, the Court took the case after initially denying the petition for review, something it does pretty rarely.  According to Court's unofficial statistician, Pam Baron, the acceptance rate in that situation ran about 3 percent last term.

Full post as published by Texas Appellate Law Blog on October 17, 2008 (boomark / email).