City Choice Group v. TMC Grand Blvd Land Co., 2025 Tex. Bus. 45 (11th Div.) (mem. op.)

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2025 Tex. Bus. 45
T HE BUSINESS C OURT OF T EXAS
ELEVENTH DIVISION
City Choice Group, LLC,
Plaintiff,
v.
TMC Grand Blvd Land Company, LLC
and BCEGI Grand Blvd Manager, LLC,
Defendants.
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§
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Cause No. 24-BC11A-0002
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M EMORANDUM OPINION
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I. 	I NTRODUCTION
¶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
FILED IN
BUSINESS COURT OF TEXAS
BEVERLY CRUMLEY, CLERK
ENTERED
11/08/2025

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request of a party[.]” TEX. R. C IV . P. 360(a)(1). The Court issued an order on June 6, 2025,
granting the First Motion.0F
1 	City Choice requested a written opinion on July 14, 2025.1F
2
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.2F
3
II. 	FACTUAL AND P ROCEDURAL 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.3F
4 	The Parties
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.”4F
5 If City Choice opted to
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

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exercise this right, City Choice needed only forfeit $100,000 of its Earnest Money Deposit,
as “Independent Consideration” for its right to terminate.5F
6 City Select Title was charged
with holding the entire Earnest Money Deposit, including the Independent Consideration,
until either termination or closing.6F
7
¶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.7F
8 Per the PSA, the Inspection Period was set to expire at midnight on Monday, July
1, 2024.8F
9
¶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.9F
10 Bergmann promptly relayed this information to TMC
representative, Vivian Gao.10F
11 	On June 28, 2024, Wasserberg again emailed Bergmann,
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.

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of Houston’s water detention requirements, and requesting an extension of the Inspection
Period.11F
12
¶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.12F
13 At 4:46 PM, Wasserberg
sent Bergmann a revised version of the First Amendment which deleted the clause granting
TMC an option to terminate.13F
14 In his email transmission, Wasserberg elaborated on City
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.”14F
15
¶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?”15F
16 When the clock struck midnight, neither version of the First
Amendment had been fully executed, and the Inspection Period ended.16F
17
¶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.17F
18
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).

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Nevertheless, City Choice purportedly continued to perform as if the parties were moving
forward to closing.18F
19
¶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.19F
20 	City Choice implicitly points out in its briefing that the
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]

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contact for TMC’s broker, Chris Bergmann, is not included in the notice list.20F
21 While no
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.21F
22 	Facially, 	none 	of 	the
communications or notices in evidence before the Court strictly complied with Section 13.22F
23
¶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.23F
24 On October 8, 2024, TMC filed a
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.24F
25 As of the date of the issuance of this Opinion, TMC has not
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.

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¶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.25F
26 After the
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.26F
27 Concurrent with the signing of this Opinion, the Court denies the Second
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.
T EX. R. C IV . 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.

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IV. 	A NALYSIS
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.27F
28
¶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”28F
29 was actually the attempted exercise of an option, but was too equivocal to
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.29F
30 Functionally, City Choice sought to nullify
its termination notice, relying on its own lack of specific compliance with the notice
provisions of the PSA.30F
31
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.”31F
32 Seven hours and
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).

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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.32F
33
¶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.”33F
34 At
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.34F
35 City Choice’s termination notice may have been conditional, but it was
nevertheless clear and unequivocal, and any conditions precedent to its effectiveness were
satisfied at the conclusion of the Inspection Period.35F
36
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
‘unqualified, 	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.

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reservation and according to the terms or conditions of the option.’”36F
37 	After rote
explications of Ogden37F
38 and Crown Construction,38F
39 City Choice descended directly into an
application of the strict compliance standard to the facts of this case without any
explanation of why that standard might apply.39F
40
¶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.40F
41 Nevertheless, City Choice failed to establish that the exercise of its
termination right qualified as the exercise of an option.41F
42 After making reference to the law
on option contracts, City Choice provided a near-exact reprisal of the authorities and case
explications from the First Response.42F
43
¶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).43F
44 Prior to the
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

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subject notices in City Choice’s cases, the subject right or obligation would not have been
enforceable against the third party.44F
45 	Without variance, each of these cases dictate that
“strict compliance”—not substantial compliance—is the standard in that context.45F
46 These
cases bear little factual similarity to the case at bar.46F
47
¶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.47F
48 City Choice proffers no other reason why the “strict
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.”).

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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 ‘gotcha’ 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.48F
49
¶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.

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and conformed with the conduct between the parties in communication regarding the PSA.
See id.49F
50 	While these facts alone are sufficient to establish City Choice’s substantial
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.50F
51 	In sum, City Choice’s
deviation from the contractual notice conditions did not severely impair the purpose
underlying those conditions and caused no prejudice.51F
52 See James Constr. Grp., 650 S.W.3d
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.52F
53
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).53F
54
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).

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¶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.54F
55
¶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”55F
56 under Section 5(b), cannot obtain specific performance of the PSA. If any
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.

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judgment in this case.56F
57 Instead, TMC seeks the immediate (i.e., pre-judgment) release of
the Independent Consideration.57F
58
¶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 T EX. C IV . P RAC. & R EM . C ODE §§ 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.58F
59 In order to obtain this remedy, a plaintiff must file an application
for a writ of attachment, supported by certain evidence, and comply with all of the statutory
requirements for the issuance of the writ. 	T EX. R. C IV . P. 592 (entitled “Application for
Writ of Attachment and Order”); see T EX. C IV . P RAC. & R EM . C ODE §§ 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).

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. 	Ifthis 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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