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Barry v. Jackson

Appellant claims that the trial court erred because appellees sought to be awarded appellant?s earnest money, thus electing a contractual remedy that bars them from receiving damages. The court of appeals held that there is sufficient evidence to show that the appellees did not elect to receive liquidated damages, relinquish their right to sue, or engage in conduct inconsistent with that right. Austin Court of Appeals, No. 03-08-00549-CV, 01-15-2010

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OPINION

In mid-July 2002, appellant Michael P. Barry entered into a contract with appellees Donald and Karen Jackson under which he agreed to buy their home for $370,000. The Jacksons then signed a contract to buy another house. Shortly after the Jacksons’ option period on their new house expired, Barry informed the Jacksons that he would not be going through with the purchase. The Jacksons lost the earnest money they had deposited in conjunction with the contract for their new house, as well as an option-period fee and a fee to have the new house inspected. The Jacksons re-listed their house after doing a number of repairs, eventually selling it in late October 2003 for $339,000. The Jacksons sued Barry for breach of contract. Following a bench trial, the trial court entered judgment in favor of the Jacksons, awarding them breach-of-contract damages in the amount of $46,965, $3,889 for “out of pocket” damages, and $23,165 in attorney’s fees. Barry appeals, complaining that the trial court erred because (1) the Jacksons sought to be awarded Barry’s earnest money, thus electing a contractual remedy that bars them from receiving damages; (2) there was insufficient evidence of the property’s market value to support the trial court’s award of damages; and (3) because the damages were improper, the attorney’s fees award should be reversed. We will reverse the trial court’s judgment, render judgment awarding the Jacksons $3,889 in damages, and remand the cause to the trial court for reconsideration of the issue of attorney’s fees.

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