Sharp v. Smith (Published): Purchasers in contract-for-deed gone bad seek liquidated damages, specific performance, and in the alternative, rescission. Sellers say: “Ah ha — we like rescission!” They pony up the money already paid by the purchasers, and ask for a summary judgment that: a. grants rescission and b. disposes of all of the purchasers’ claims. The trial court grants the motion.
“Not so fast, my friend” says the Tyler court.
Actually, the Tyler court’s real words are: “We interpret [the seller’s pleading] as a motion for partial summary judgment on the issue of election of remedies.”
The sellers had picked the purchasers’ remedy for them. That’s a no-no, unless the sellers meet all of the requirements for the affirmative defense of election of remedies. There is an election of remedies when: (1) one successfully exercises an informed choice (2) between two or more remedies, rights, or states of facts (3) that are so inconsistent as to (4) constitute manifest injustice. Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 851 (Tex. 1980). The sellers didn’t prove those points.
Since the Tyler court reverses and remands on those grounds, they also address the question of: “Seller or Sellers?”
The sellers were husband and wife. The wife didn’t sign the documents. But the property at issue was community property. Consequently, it was error to grant the wife a summary judgment letting her out of the case. If the purchasers wanted specific performance, the wife would have to sign the deed.
Trivia: Did you know that Lee Corso’s roomate at FSU was Burt Reynolds?
