Nature of the Case
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Facts
Sebree and Hood (Ds) each owned an undivided one-half interest in a piece of real property. Ds entered into a 'Lease-Purchase Agreement' (the 'Lease') with P whereby P would lease the property with an option to purchase at any time for $150,000, less the monthly rental payments he had made up to the date of purchase. The parties later amended the Lease to allow P to sublease the property to a third party and to increase the amount of monthly rent paid by P. The Lease term was three years; the option to purchase therefore expired on February 1, 1996. One month before the expiration of the Lease, P and Hood (D) discussed P's desire to exercise his purchase option. P claims that he requested Ds to prepare a title policy and general warranty deed as required by the Lease terms. Hood (D) claims that P indicated he did not want a title policy because he had previously reviewed the title in connection with his sublease and was satisfied. The parties do agree that P did not speak to Sebree (D) directly about P's intention to exercise the option. P ordered a title commitment and learned of various liens and encumbrances on the property. P complained to Hood (D) that the liens were clouds on the title and must be released before closing. Sebree (D) contacted his own title company to inquire about a title commitment, although he never actually ordered one. Closing was set for February 1, 1996, but was canceled. P claims Hood (D) canceled because Ds could not produce clear title. Hood (D) testified that P canceled. The option expired. Hood (D) conveyed his one-half interest in the property to Scott (P) and was dismissed from this lawsuit prior to trial. P argued that he was precluded by Sebree's (D) conduct from exercising his option and that D had committed fraud by maintaining encumbrances on the property in contravention of the lease agreement. D claims he had no knowledge of the liens when he signed the Lease and did not learn of them until January 1996. D also claims that the liens were paid in full and thus there would be no hindrance to closing. D filed a counterclaim against P for breach of contract. The case was submitted to a jury on breach of contract, a statutory fraud in a real estate transaction, and violations of the Deceptive Trade Practices-Consumer Protection Act. The jury found that P's failure to exercise his option was excused by Sebree's (D) conduct. The jury supported claims for breach of contract, statutory fraud, and DTPA violations, including findings of additional damages under the DTPA claim and exemplary damages under the statutory-fraud claim. The parties stipulated as to the amount of actual damages, no jury question was submitted on that issue. In his 'Motion to Sign Judgment,' P requested specific performance in lieu of monetary damages, but also requested attorney's fees, costs of court, exemplary damages, expert witness costs, and deposition copy costs. Sebree (D) argued that specific performance is not available under section 27.01. The trial court apparently agreed, limiting damages to those available for breach of contract--specific performance, attorney's fees, and costs of court. P and D appealed. P argues that the trial court erred in not allowing him to elect specific performance in lieu of monetary damages under the statute. P argues he was thus erroneously deprived of the exemplary damages, expert witness fees, and deposition copy costs to which a party recovering under section 27.01 is entitled. D appealed as well.
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