City Choice Group v. TMC Grand Blvd Land Co.

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.

With a copy to:

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.

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