Inimitable Group, L.P. and Soitis, L.L.C. v. Westwood Group Development II, Ltd.

Summary

The opinion concerns a dispute over an agreement for the construction and sale of an office and warehouse building in Grapevine, Texas. The court affirms a trial judgment awarding Westwood Group Development II, Ltd. damages and attorney’s fees, holding that the parties formed an enforceable oral agreement concerning interior finish-out services and rejecting the appellants’ challenges concerning repudiation, excuse from performance, estoppel, and waiver. The appellate court also notes that the appellants failed to preserve certain arguments and failed to challenge an alternative trial-court finding.

Holdings

1. The parties entered into a valid and enforceable oral agreement for Westwood to coordinate interior design and finish-out services. The absence of a final agreed price and a specific completion date did not make the agreement unenforceably indefinite because a reasonable price and reasonable time could be implied.
2. The court overruled appellants' challenge to the finding that they anticipatorily repudiated or breached the enforceable oral interior finish-out agreement because the challenge depended on the rejected premise that no enforceable agreement existed.
3. Appellants could not obtain reversal based on Westwood's alleged failure to elect between continuing performance and treating appellants' conduct as a breach because that avoidance argument was an affirmative defense that appellants neither pleaded nor tried by consent. In addition, an unchallenged finding established that Westwood timely substantially completed the building and satisfied all conditions precedent.
4. The trial court properly applied equitable estoppel because the evidence supported findings that Soitis concealed or misrepresented its intentions regarding closing and that Westwood reasonably relied on that conduct to its detriment.
5. Appellants waived any failure by Westwood to comply with the purchase-and-sale agreement.

Questions Presented

1. Whether the parties entered into an enforceable oral agreement for interior finish-out and design services despite the absence of an agreed final price and completion date.
2. Whether appellants could anticipatorily repudiate an oral interior finish-out agreement that the trial court found enforceable.
3. Whether Westwood was excused from further performance under the purchase-and-sale agreement after appellants breached or anticipatorily repudiated the oral interior finish-out agreement.
4. Whether appellants were estopped from asserting that Westwood first breached the purchase-and-sale agreement.
5. Whether appellants waived any right to terminate based on Westwood's alleged failure to substantially complete the project.

Disposition

affirmed