OPINION This dispute arises out of a failed sale of real property in Liberty County. Appellee/cross-appellant HouReal Corporation sued appellant/cross-appellee Rescue Concepts Inc. for breach of a real estate contract and sought specific performance of the contract and actual damages. Rescue Concepts filed a counterclaim for breach of contract and sought liquidated damages under the parties’ contract. A jury found that Rescue Concepts breached the contract, its breach was not excused, and HouReal’s damages resulting from the breach were $425,000. The trial court reduced the damages award to $50,000, offset that amount against Rescue Concepts’ reasonable litigation costs, and authorized HouReal to recover a $50,000 earnest money deposit. Both parties appealed the judgment of the trial court. In its appeal, Rescue Concepts argues that the trial court erred by releasing the earnest money deposit to HouReal because after Rescue Concepts breached the contract, HouReal treated the contract as continuing, thereby ratifying the contract and waiving release of the earnest money. Rescue Concepts argues that the trial court should have released the earnest money deposit to it because HouReal undisputedly failed to comply with a contractual obligation to deposit additional earnest money. Rescue Concepts requests that we remand the case to the trial court for a determination of its attorney’s fees and an assessment of costs. HouReal raises four issues in its cross-appeal. It argues that the trial court (1) erroneously denied HouReal’s request for discovery relating to Rescue Concepts’ sale of the property to a third party several months before trial; (2) erroneously excluded damages testimony relating to this sale; (3) had no legal authority to reduce the jury’s damages award, but could instead only suggest a remittitur or grant a new trial; and (4) erroneously offset Rescue Concepts’ litigation costs against the damages award under Rule of Civil Procedure 167. We reverse and remand. Background Rescue Concepts owned a 300-acre tract of land in Liberty County next to State Highway 146 and an ExxonMobil chemical facility. This property is also bordered by railroad tracks and a canal, and several oil and gas companies hold pipeline easements on the property. In July 2013, Rescue Concepts engaged CobbFendley, an engineering and surveying firm, to perform surveying and platting services for the property. CobbFendley completed a “draft survey” of the property in August 2013 and a “preliminary plat” of the property in September 2013. Stephen Peacock, the president of HouReal, learned about the property in April 2014 and became interested in acquiring it. He contacted Jacqueline Lucci Smith, Rescue Concepts’ attorney, and began negotiating the purchase of the property. Peacock made several requests for a “survey” of the property, and Smith provided the preliminary plat completed by CobbFendley. During this time, Peacock also sought potential partners to develop the property. He reached a “gentleman’s agreement” concerning development of the property with Gordon Westergren, the founder of Frontier Logistics, a company that packages plastic pellets and ships those pellets to customers via railroad. Frontier Logistics agreed that upon conducting due diligence and ensuring that the railroad adjacent to the property could be utilized, it would pay the purchase price for the property. After several months of negotiations, HouReal entered into an earnest money contract in September 2014 to purchase the property from Rescue Concepts. HouReal agreed to pay $12,000,000 in cash at closing. HouReal also agreed to deposit $50,000 in earnest money with Stewart Title Company within three days after September 26, 2014, the effective date of the contract. It is undisputed that HouReal made this earnest money deposit. Additionally, HouReal agreed to deposit an additional $100,000 in earnest money at the end of the “feasibility period” if HouReal had not already terminated the contract. The contract provided that HouReal “will be in default if [HouReal] fails to deposit the additional amount required by this Paragraph.” With respect to the “feasibility period,” the contract provided that HouReal could terminate the contract for any reason within 42 days after the effective date by providing Rescue Concepts with written notice of termination. The feasibility period ended on November 7, 2014. If HouReal terminated the contract under this provision, it was entitled to a refund of the earnest money deposit less $1,000, which Rescue Concepts would “retain as independent consideration for [HouReal's] unrestricted right to terminate.” An addendum to the contract provided that $100,000 of the earnest money would become non-refundable at the end of the feasibility period. HouReal could extend the feasibility period for up to 14 days by providing written notice to Rescue Concepts, but if it did this, “the entire $150,000 Earnest Money deposited with the Title Company becomes non-refundable.” The addendum provided that all earnest money would be credited to HouReal at closing and that all earnest money “must be deposited on or before the end of” the feasibility period. The earnest money contract required Rescue Concepts to provide both a title policy and a survey of the property. The contract provided that within 20 days after the effective date: Seller will deliver to Buyer and the title company a true and correct copy of Seller’s most recent survey of the Property dated after the effective date along with an affidavit required by the title company for approval of the existing survey. If the existing survey is not acceptable to the title company, Buyer, at Buyer’s expense, will obtain a new or updated survey acceptable to the title company and deliver the acceptable survey to Seller and the title company within 20 days after Buyer receives notice that the existing survey is not acceptable to the title company. The closing date will be extended daily up to 20 days if necessary for Buyer to deliver an acceptable survey within the time required. Buyer will reimburse Seller $0.00 of the cost of the new or updated survey at closing, if closing occurs. The addendum to the contract allowed Rescue Concepts to “sell one additional pipeline easement to be located within the pipeline corridor located on the survey.” HouReal agreed to reimburse Rescue Concepts up to $20,000 “for survey expenses regarding the dedication of a 70 foot wide pipeline corridor abutting and parallel to the pipelines paralleling State Highway 146.”[1] An exhibit to this addendum acknowledged that Rescue Concepts had provided a “draft survey of the Property with the proposed pipeline corridor and various existing easements and encumbrances” to HouReal several months before the parties executed the contract. Rescue Concepts had also produced a “research file” maintained by CobbFendley, the engineering firm it had hired “to survey, plat and file the proposed pipeline corridor.” Paragraph 15 of the contract included the following provision concerning default by the parties: If Buyer fails to comply with this contract, Buyer is in default and Seller may: terminate this contract and receive the earnest money, as liquidated damages and as Seller’s sole remedy; or seek any other relief provided by law. Seller may may not enforce specific performance. If, without fault, Seller is unable within the time allowed to deliver the estoppel certificate, survey or the commitment, Buyer may: terminate this contract and receive the earnest money, less any independent consideration under Paragraph 7B(1), as liquidated damages and as Buyer’s sole remedy; or extend the time for performance up to 15 days and the closing will be extended as necessary. Except as provided in Paragraph 15B, if Seller fails to comply with this contract, Seller is in default and Buyer may: terminate this contract and receive the earnest money, less any independent consideration under Paragraph 7B(1), as liquidated damages and as Buyer’s sole remedy; or enforce specific performance, or seek such other relief as may be provided by law, or both. The contract also included a provision in which the parties agreed “to negotiate in good faith in an effort to resolve any dispute related to this contract that may arise.” If negotiation could not resolve the dispute, the parties agreed to submit the dispute to a mediator before initiating either arbitration or litigation. The contract also included, as an exhibit, a diagram of the property. This diagram was labeled, “Rescue Concepts Subdivision Preliminary Plat.” It also stated, “A land title survey of a 300.072 acre tract located in the C.C.P. Welch Survey.” The diagram was dated “September 2013,” one year before the parties entered into the contract. This diagram bore no seal, but it did state that it was prepared by CobbFendley. The earnest money contract set the closing date for January 7, 2015, and specifically provided that time was of the essence. The contract was signed by Peacock and Melanie Liska, the vice president of Rescue Concepts. On the effective date of the contract, September 26, 2014, Peacock emailed Gail Kohl, the escrow officer at Stewart Title, and Smith. He asked Smith to email an “electronic copy of the survey” to Kohl “with information on the date she can expect the updated survey.” Smith responded the following day and attached a copy of “the survey.” The attachment was the “preliminary plat” prepared by CobbFendley that had been attached as an exhibit to the contract and that was dated “September 2013.” Two days later, on September 29, 2014, Kohl emailed Peacock and Smith and stated, “I received an email with the survey.” On October 8, 2014, Smith forwarded the metes and bounds for the property, prepared by CobbFendley, to Kohl and Peacock. Smith did not provide an “updated” survey to Peacock or Kohl. Neither Kohl nor Peacock contacted Smith in writing before the end of the feasibility period and informed her that the “survey” that she provided was actually a “preliminary plat,” nor did they otherwise raise any deficiencies in this document or object to it in writing. During the feasibility period, local governmental officials contacted Smith and informed her that there was a proposal to construct a portion of the Grand Parkway toll road on the property. Smith informed Peacock, and they both met with officials in the hopes of securing an agreement to either re-route the toll road or elevate it so that it would not interfere with operations on the property. Around this time, Peacock also began meeting with officials at Union Pacific Railroad to see if HouReal and Frontier Logistics could be approved to establish rail connections on the property. On October 12, 2014, Peacock emailed Smith and described the complicated process that was involved in obtaining approval from Union Pacific. Peacock detailed other problems that had arisen during the feasibility period, including receiving an “unusable” and out-of-date environmental report from Rescue Concepts, no receipt of a “geo-tech survey,” and issues with a delayed and inaccurate title commitment. Peacock stated, “[W]hat remains to be done in order to conclude that the project is feasible cannot be completed before the end of the Feasibility Period on November 7, 2014.” He requested that the feasibility period be extended for 28 days, or until December 5, 2014. Without the extension, HouReal would have to terminate the contract.[2] Peacock did not state in this email that he believed Rescue Concepts had not complied with its contractual obligation to provide a survey to HouReal and Stewart Title. Ultimately, the parties agreed to extend the end of the feasibility period one week until November 14, 2014. It is undisputed that HouReal did not deposit an additional $100,000 in earnest money by this date. On November 17, 2014, Smith emailed Peacock and stated that because HouReal did not either terminate the contract before the end of the feasibility period or deposit the remainder of the earnest money, HouReal had defaulted under the contract. Smith offered an opportunity to cure the default by paying the additional $100,000 in earnest money within 24 hours. If HouReal did not do so, Rescue Concepts would terminate the contract. HouReal did not deposit an additional $100,000 in earnest money. On November 20, 2014, Smith emailed Kohl and Peacock and inquired whether HouReal had made the additional deposit. Smith stated that if HouReal had not made the deposit, then Rescue Concepts was terminating the contract, and she requested that Stewart Title pay the $50,000 in earnest money currently on deposit to Rescue Concepts as liquidated damages. Peacock emailed Kohl and instructed her not to release the earnest money because the parties intended to mediate the dispute. The initial $50,000 earnest money deposit remains with Stewart Title. Also on November 20, 2014, Peacock emailed Smith and provided a lengthy chronology of events leading up to the end of the feasibility period, mostly focusing on issues with the Grand Parkway proposal and the Union Pacific negotiations. Peacock concluded his email by stating, “Your client’s breach of the terms of the contract will be demonstrated at the mediation by HouReal when it also explains the damages it sustained.” Peacock did not state in the email how Rescue Concepts allegedly breached the contract. Over the next few weeks, Peacock and Smith continued to exchange emails concerning the contract, and they discussed the possibility of mediation. Smith frequently expressed confusion over how Rescue Concepts allegedly breached the contract, and Peacock did not provide an answer or explain how Rescue Concepts could cure any alleged breaches. Peacock insisted that the parties meet pursuant to section 21 of the contract, which required the parties to “negotiate in good faith in an effort to resolve any dispute related to [the] contract that may arise,” and he indicated a desire to reach a settlement. Nevertheless, he did not state which acts or omissions by Rescue Concepts constituted a breach. No meeting under section 21 of the contract occurred. Instead, litigation ensued. HouReal filed suit against Rescue Concepts on December 10, 2014. HouReal asserted a claim for breach of contract and alleged only that Rescue Concepts “was obligated to perform certain tasks before closing, which it failed to perform in breach of the agreement.” In its first amended petition, filed in May 2015, HouReal requested that the court reinstate the contract, and it requested specific performance. In its second amended petition, filed in June 2015 in response to Rescue Concepts’ special exceptions, HouReal alleged that Rescue Concepts breached the contract by failing to produce a survey of the property. HouReal continued to request specific performance of the contract, or actual damages in the alternative. Specifically, HouReal sought actual damages “in the maximum amount of $12,000,000.00, the amount of [its] lost revenues and/or profits.” Finally, in its third amended petition, filed in July 2015, HouReal also alleged that Rescue Concepts breached the contract by failing to negotiate in good faith “related to an extension of the contractual Feasibility Period to permit [HouReal] an opportunity to deal with the Grand Parkway Association.” In addition to raising several affirmative defenses, Rescue Concepts also asserted counterclaims against HouReal. Rescue Concepts alleged that HouReal breached the contract by failing to make the additional $100,000 earnest money deposit by the end of the feasibility period, and it sought $150,000 in liquidated damages. Rescue Concepts also asserted several fraud claims against HouReal and Peacock.[3] The litigation process lasted several years.[4] In August 2019, Rescue Concepts sold the property to a third party, NPH Dayton, LLC. HouReal did not learn of this sale until December 2019. At that point, HouReal immediately sought discovery about this matter and sought to depose Liska and the president of NPH Dayton. The trial court refused to permit this discovery, and it also excluded any testimony concerning the amount NPH Dayton paid to purchase the property. The trial court held a jury trial in February 2020. At trial, Peacock, Liska, and Westergren testified. Charles Eastland, an engineer with CobbFendley, also testified by deposition. In Question 1, the jury found that Rescue Concepts breached the earnest money contract. Question 2 of the jury charge asked whether HouReal breached the contract by failing to comply with two provisions—section 5, concerning the additional earnest money deposit, and section 18, concerning the disposition of the earnest money—but the jury found that HouReal did not breach the contract. Question 3 asked whether Rescue Concepts’ failure to comply with the contract was excused based on several different grounds, including waiver and ratification by HouReal. The jury found that Rescue Concepts’ breach of the contract was not excused. The jury further found that Rescue Concepts’ failure to comply with the contract was not “without fault,” as set out in section 15 of the contract. The jury awarded HouReal $425,000 in damages as a result of Rescue Concepts’ breach of the contract. Shortly after the trial, the trial court entered judgment on the jury verdict, awarding HouReal $425,000 in damages from Rescue Concepts. Three days later, however, the court voided the final judgment and handwrote on the judgment, “Waiting for Entry of Judgment hearing. Was presented prematurely.” Rescue Concepts filed a motion for judgment notwithstanding the verdict, arguing, among other things, that HouReal did not prove that Rescue Concepts materially breached the contract, nor did it prove any damages. Rescue Concepts also argued that the court should set aside the jury’s answers to Question 3 because Rescue Concepts conclusively proved both waiver and ratification. Rescue Concepts requested that the trial court render judgment that it is entitled to $150,000 in liquidated damages. Rescue Concepts also moved for the trial court to determine its litigation costs pursuant to Rule 167. Before trial, Rescue Concepts filed a Rule 167 declaration and made a settlement offer to HouReal that included release of the $50,000 earnest money deposit and a lump sum of $30,000. It argued that the court’s judgment “may well be ‘significantly less favorable’” to HouReal than the settlement offer, and it requested an opportunity to prove its offer, its litigation costs, and the amount of any set-off under Rule 167. On May 1, 2020, the trial court signed a final judgment. In this judgment, the court disregarded the jury’s award of $425,000 in damages and awarded HouReal $50,000 in damages. Both parties filed post-judgment motions. Rescue Concepts filed a motion to amend or correct the final judgment, and it renewed its motion for JNOV and its motion to determine litigation costs. HouReal contended that the May 2020 judgment was incorrect because the trial court had no authority to reduce the damages award from $425,000 to $50,000. HouReal argued that, instead, all the court could do was suggest a remittitur. The trial court signed an amended final judgment on August 14, 2020. The amended final judgment set aside the jury’s damages award. The court ruled that HouReal was entitled to $50,000 in damages, but the court offset the award by the amount of Rescue Concepts’ reasonable litigation costs—which totaled over $200,000—and therefore HouReal was to recover $0 in damages. The court also authorized Stewart Title to release the $50,000 earnest money deposit, less any unpaid expenses, to HouReal. The court awarded HouReal pre-and post-judgment interest and court costs. Both parties again filed post-judgment motions. These motions were overruled by operation of law. Both Rescue Concepts and HouReal filed notices of appeal. Award of Earnest Money Rescue Concepts argues that the trial court erred by awarding the $50,000 of earnest money on deposit with Stewart Title to HouReal. Specifically, it argues that this award was improper because HouReal did not plead for this relief, this award constitutes an impermissible double recovery, and HouReal did not elect to terminate the contract after Rescue Concepts’ breach, but instead ratified the contract and waived release of the earnest money. HouReal then, after treating the contract as continuing following the breach, did not fully comply with its own contractual obligations, specifically, the requirement to deposit an additional $100,000 in earnest money by the end of the feasibility period. Rescue Concepts also argues that it is entitled to recover the earnest money deposit. In its cross-appeal, HouReal argues that Stewart Title is not a party to this lawsuit and is not subject to the trial court’s jurisdiction. Therefore, “[t]here was no basis for the trial court to order Stewart Title to release $50,000.00 to HouReal.” HouReal argues that it has a “contractual arrangement” with Stewart Title and “expects that Stewart Title will honor its contract” when the court’s judgment is final and non-appealable. However, the damages award against Rescue Concepts “can be satisfied only by” Rescue Concepts. HouReal requests that this Court “reverse these rulings implicating Stewart Title so that they no longer interfere with [HouReal's] contractual arrangements with Stewart Title.” Standard of Review When a party attacks the legal sufficiency of an adverse finding on an issue on which it has the burden of proof, it must show on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). In reviewing a matter of law challenge, we must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Id. If there is no evidence to support the finding, we will then examine the entire record to determine if the contrary proposition is established as a matter of law. Id. We sustain the point of error only if the contrary proposition is conclusively established. Id. To conclusively establish a fact, “the evidence must leave ‘no room for ordinary minds to differ as to the conclusion to be drawn from it.’” Int’l Bus. Machs. Corp. v. Lufkin Indus., LLC, 573 S.W.3d 224, 235 (Tex. 2019) (quoting Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982)). Jurors are the sole judges of the credibility of the witnesses and the weight to give their testimony. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). Jurors may choose to believe one witness over another, and we may not impose our opinions to the contrary. Id. If evidence allows only one inference, neither jurors nor the reviewing court may disregard the inference. Id. at 822. When the opposing party fails to object to the court’s charge, the charge, not some other unidentified law, measures the sufficiency of the evidence. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000). Analysis Both parties agree, albeit for different reasons, that the trial court erred by ordering Stewart Title to release the $50,000 in earnest money to HouReal, and they both request that we reverse this portion of the trial court’s judgment. The parties disagree, however, concerning whether Rescue Concepts is entitled to recover the $50,000 earnest money deposit. The jury found that Rescue Concepts failed to comply with the earnest money contract, but HouReal did not fail to comply with two specified sections of the contract. The jury charge asked whether Rescue Concepts’ failure to comply with the contract was excused on four different grounds, including waiver and ratification. The jury answered that Rescue Concepts’ failure to comply was not excused. On appeal, Rescue Concepts does not challenge the jury’s finding that it failed to comply with the contract. Rather, it argues that the evidence conclusively established that Rescue Concepts’ failure to comply with the contract was excused by waiver and ratification, and that HouReal breached the contract by failing to make the additional earnest money deposit. Rescue Concepts argues that, as a result, it is entitled to recover the $50,000 earnest money on deposit with Stewart Title. When a party to a contract commits a material breach of the contract, the other party is discharged or excused from future performance. Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 196 (Tex. 2004) (per curiam); see Bartush-Schnitzius Foods Co. v. Cimco Refrigeration, Inc., 518 S.W.3d 432, 437 (Tex. 2017) (per curiam) (stating that material breach excuses future performance, not past performance). However, if the non-breaching party treats the contract as continuing after the breach, it is deprived of any excuse for terminating its own performance. Long Trs. v. Griffin, 222 S.W.3d 412, 415 (Tex. 2006) (per curiam); Hanks v. GAB Bus. Servs., Inc., 644 S.W.2d 707, 708 (Tex. 1982); Henry v. Masson, 333 S.W.3d 825, 840 (Tex. App.—Houston [1st Dist.] 2010, no pet.). If the non-breaching party elects to treat the contract as continuing and insists that the party in default continue performance, “the previous breach constitutes no excuse for nonperformance on the part of the party not in default and the contract continues in force for the benefit of both parties.” Gupta v. E. Idaho Tumor Inst., Inc., 140 S.W.3d 747, 756 (Tex. App.—Houston [14th Dist.] 2004, pet. denied). Thus, the non-breaching party must elect between two courses of action: continuing performance under the contract or ceasing to perform. Henry, 333 S.W.3d at 840; Chilton Ins. Co. v. Pate & Pate Enters., Inc., 930 S.W.2d 877, 887–88 (Tex. App.—San Antonio 1996, writ denied). “Seeking to benefit from the contract after the breach operates as a conclusive choice depriving the non-breaching party of an excuse for his own non- performance.” Henry, 333 S.W.3d at 841. If the non-breaching party continues performance under the contract, it “obligates itself to fully perform.” Gupta, 140 S.W.3d at 757 n.7. The Texas Supreme Court has defined waiver as the intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right. Chalker Energy Partners III, LLC v. Le Norman Operating LLC, 595 S.W.3d 668, 676 (Tex. 2020); Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003) (per curiam); Internacional Realty, Inc. v. 2005 RP West, Ltd., 449 S.W.3d 512, 528 (Tex. App.—Houston [1st Dist.] 2014, pet. denied). The elements of waiver include (1) an existing right, benefit, or advantage held by a party; (2) the party has actual knowledge of the existence of the right; and (3) the party actually intends to relinquish the right or engages in intentional conduct inconsistent with the right. Ulico Cas. Co. v. Allied Pilots Ass’n, 262 S.W.3d 773, 778 (Tex. 2008); Internacional Realty, 449 S.W.3d at 528. Waiver can be established by a party’s express renunciation of a known right or by “silence or inaction for so long a period as to show an intention to yield the known right.” Aguiar v. Segal, 167 S.W.3d 443, 451 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). Waiver is largely a matter of intent, and for implied waiver to be found through a party’s actions, the surrounding facts and circumstances must clearly demonstrate the party’s intent. Jernigan, 111 S.W.3d at 156; see Chalker Energy Partners, 595 S.W.3d at 677 (“[T]o establish waiver by conduct, that conduct must be ‘unequivocally inconsistent with claiming a known right.’”) (quoting Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 485 (Tex. 2017)). “There can be no waiver of a right if the person sought to be charged with waiver says or does nothing inconsistent with an intent to rely upon such right.” Chalker Energy Partners, 595 S.W.3d at 677; Internacional Realty, 449 S.W.3d at 529 (“Only actions that are inconsistent with an intent to rely on a right can be evidence of waiver.”). Ordinarily, waiver is a fact question, but if the facts and circumstances are undisputed, it becomes a question of law. Chalker Energy Partners, 595 S.W.3d at 676–77; Jernigan, 111 S.W.3d at 156–57. Here, the earnest money contract provided for a 42-day feasibility period, during which HouReal could investigate whether the property was suitable for the plans it was developing with Frontier Logistics. The feasibility period was scheduled to end on November 7, 2014. During this period, HouReal could terminate the contract for any reason and retain all but $1,000 of its initial $50,000 earnest money deposit. By the end of the feasibility period, if HouReal had not terminated the contract, it was required to deposit an additional $100,000 in earnest money, and it would be in default if it failed to do so. An addendum to the contract provided that HouReal could extend the feasibility period “for a period of 14 days” by providing written notice to Rescue Concepts. Within 20 days after the effective date of the contract, September 26, 2014, Rescue Concepts was required to deliver to HouReal and Stewart Title “a true and correct copy of [Rescue Concepts'] most recent survey of the Property dated after the effective date along with an affidavit required by the title company for approval of the existing survey.” If the title company determined that the existing survey was not acceptable, HouReal would be required to “obtain a new or updated survey acceptable to” Stewart Title and deliver the acceptable survey to Stewart Title and Rescue Concepts. Rescue Concepts was required to deliver a survey by October 16, 2014. It does not challenge on appeal the jury’s finding that it did not comply with this provision. On October 12, 2014, Peacock emailed Smith and discussed the complicated process of obtaining a permit from Union Pacific to establish rail connections on the property. In this email, he also identified several problems with Rescue Concepts’ performance under the contract, including HouReal’s receipt of an “unusable environmental report” and the “name of someone who may have conducted some type of geo-tech survey in some unstated year” but no actual geo-tech survey from Rescue Concepts. Peacock also stated that Rescue Concepts delivered a title commitment late, and it was “inaccurate and incomplete.” He did not raise any issue about the “preliminary plat” that Smith had provided to Peacock and Stewart Title in late September 2014, nor did he inform Smith that he did not believe that the delivery of the preliminary plat satisfied Rescue Concepts’ contractual obligation to deliver a survey. Peacock requested an extension of the feasibility period until December 5, 2014, because “what remains to be done in order to conclude that the project is feasible cannot be completed before the end of the Feasibility Period on November 7, 2014.” After problems arose concerning the potential route of the Grand Parkway toll road across the property, Peacock proposed extending the feasibility period for 60 days; extending the closing—scheduled for January 2015—for 180 days; and increasing the purchase price. Peacock acknowledged that he needed Rescue Concepts’ approval to extend the feasibility period beyond its original date. Rescue Concepts did not want to wait until July 2015 to close on the property, but it offered a one-week extension of the feasibility period until November 14, 2014. HouReal agreed to this extension.[5] It is undisputed that HouReal did not pay an additional $100,000 by the end of the extended feasibility period, nor did it make this deposit after Rescue Concepts offered an additional 24 hours to cure the default. At trial, Peacock testified that he informed Rescue Concepts that it had breached the contract in his October 12, 2014 email. Specifically with respect to Rescue Concepts’ survey obligation, he agreed that after Smith emailed the preliminary plat to him and Stewart Title in September 2014, he did not respond and state that the preliminary plat was not actually a survey. Peacock further agreed that Stewart Title did not object in writing to the preliminary plat before HouReal filed suit in December 2014. He also agreed that he did not inform Rescue Concepts in writing that the survey that had been provided was “not a good survey” in October 2014 or in November 2014 prior to the end of the extended feasibility period. Peacock testified, “I did not say that there was a breach of not delivering the existing survey.” He further agreed that HouReal did not terminate the contract in October or November, but instead decided to keep the contractual arrangement in place “[t]o deal with issues.” In arguing that Rescue Concepts did not conclusively establish that HouReal waived compliance with the survey obligation, HouReal points to Peacock’s testimony that he notified Smith via email on October 12, 2014, that Rescue Concepts had breached the contract. Peacock did inform Smith on this date of several ways in which HouReal believed Rescue Concepts had not complied with the contract. However, although HouReal pointed out several deficiencies in Rescue Concepts’ performance related to a geo-tech survey, an environmental report, and the title commitment, HouReal did not state that Rescue Concepts had breached the survey obligation, which was the breach alleged in HouReal’s pleadings and relied upon by HouReal in the trial court. Peacock agreed that he did not notify Rescue Concepts in writing before the end of the extended feasibility period that Rescue Concepts breached the survey obligation. HouReal was aware that it had the right to obtain a survey of the property from Rescue Concepts by October 16, 2014. Peacock testified that after Rescue Concepts and HouReal signed a letter of intent concerning the sale in July 2014, he began drafting the earnest money contract, occasionally consulting with Smith. In drafting the parties’ contract, Peacock used a form earnest money contract originally written by the Texas Association of Realtors. Peacock made several changes to the form contract’s language throughout the drafting process, including inserting language into the contractual provision containing the survey obligation. The right to obtain a survey within 20 days after the contract’s effective date was therefore a right known to HouReal. See Chalker Energy Partners, 595 S.W.3d at 676. When Rescue Concepts did not provide a satisfactory survey by October 16, it was in default. Under the default provisions of the contract, HouReal could either (1) terminate the contract and receive the earnest money deposit as liquidated damages or (2) enforce specific performance, seek such other relief as may be provided by law, or both. HouReal, however, did neither. Instead, it continued working with Union Pacific, engaged in negotiations with the Grand Parkway Association concerning the potential route of the toll road, met with officials at the neighboring ExxonMobil facility, met with potential customers for HouReal’s project with Frontier Logistics, and sought extensions of the feasibility period from Rescue Concepts. After Rescue Concepts proposed a one-week extension of the feasibility period, HouReal agreed to that extension. HouReal did so without having notified Rescue Concepts that it believed Rescue Concepts to be in breach of the survey obligation. HouReal did not assert that Rescue Concepts breached the contract by failing to provide a survey until it filed its second amended petition in June 2015. We conclude that HouReal’s actions after Rescue Concepts breached the survey obligation were inconsistent with claiming the right to insist upon receiving a survey within 20 days of the contract’s effective date. See id.; Internacional Realty, 449 S.W.3d at 529. Furthermore, although Rescue Concepts’ material breach of the contract would have excused HouReal from further performance, see Bartush- Schnitzius Foods Co., 518 S.W.3d at 436, HouReal did not cease performing under the contract. Instead, HouReal treated the contract as continuing after Rescue Concepts’ breach. As a result, HouReal was obligated to fully perform under the contract. See Long Trs., 222 S.W.3d at 415; Henry, 333 S.W.3d at 840; Gupta, 140 S.W.3d at 756. In addition to the initial $50,000 earnest money deposit, the contract required HouReal to deposit an additional $100,000 in earnest money on or before the end of the feasibility period. The contract provided that HouReal would be in default if it failed to deposit this additional amount. It is undisputed that HouReal did not make this additional earnest money deposit by the end of the extended feasibility period. The jury, however, found that HouReal did not fail to comply with the contract by breaching the provision requiring the additional earnest money deposit. We conclude that the evidence conclusively establishes that HouReal treated the contract as continuing after Rescue Concepts’ material breach, HouReal’s performance of its own contractual obligations was therefore not excused, and HouReal failed to comply with the contractual provision requiring it to deposit an additional $100,000 in earnest money by the end of the extended feasibility period. The trial court therefore erred in failing to set aside the jury’s answers to Questions 2(a) (finding that HouReal complied with the earnest money provision of the contract), 3(a) (finding that Rescue Concepts’ failure to comply with the contract was not excused by HouReal’s waiver of Rescue Concepts’ compliance), and 5 (awarding damages to HouReal as a result of Rescue Concepts’ failure to comply with the contract). Rescue Concepts argues that upon HouReal’s default, under the default provisions of the contract it became entitled to the return of the initial $50,000 earnest money deposit as liquidated damages.[6] We agree. We hold that Rescue Concepts is entitled to release of the $50,000 earnest money deposited with Stewart Title. We further hold that because Rescue Concepts is now the prevailing party under the contract, it is entitled to recover all costs and “reasonable attorney’s fees.” We therefore remand the case to the trial court for the purpose of determining Rescue Concepts’ attorney’s fees and assessing its costs. We sustain Rescue Concepts’ issue on appeal.[7] Denial of Discovery In the first issue in its cross-appeal, HouReal argues that the trial court abused its discretion by denying HouReal’s request for discovery related to Rescue Concepts’ August 2019 sale of the property to a third party. Scope of Discovery The scope of discovery is within the trial court’s discretion. In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding) (per curiam). The trial court abuses its discretion by ordering discovery that exceeds that which is permitted by the rules of procedure. In re USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding) (quoting In re CSX, 124 S.W.3d at 152); In re Nat’l Lloyds Ins. Co., 507 S.W.3d 219, 223 (Tex. 2016) (orig. proceeding) (per curiam). Generally, a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action, whether the matter relates to a claim or defense of the party seeking discovery or any other party’s claim or defense. TEX. R. CIV. P. 192.3(a). This evidence is discoverable even if it will be inadmissible at trial as long as the information appears reasonably calculated to lead to the discovery of admissible evidence. In re USAA Gen. Indem. Co., 624 S.W.3d at 787–88; TEX. R. CIV. P. 192.3(a). “What is ‘relevant to the subject matter’ is to be broadly construed.” In re Nat’l Lloyds Ins. Co., 507 S.W.3d at 223. Information is relevant if it has any tendency to make a fact of consequence more or less probable than it would be without the evidence. TEX. R. EVID. 401. We consider the pleadings to determine which facts are “of consequence” to the action. In re Allstate Fire & Cas. Ins. Co., 617 S.W.3d 635, 643 (Tex. App.—Houston [14th Dist.] 2021, orig. proceeding); see In re Alford Chevrolet-Geo, 997 S.W.2d 173, 180 n.1 (Tex. 1999) (orig. proceeding) (stating that review of discovery requests to determine whether they are overbroad “can generally be done on close examination of the pleadings and specific claims and defenses made”). “Facts that may be of consequence to issues not raised by pleadings are not permissible areas of discovery.” In re Allstate Fire & Cas. Ins. Co., 617 S.W.3d at 643. The Rules of Civil Procedure require every civil case to be governed by a discovery control plan, which sets limits on discovery, including when the discovery period in a case ends. TEX. R. CIV. P. 190.1; see, e.g., TEX. R. CIV. P. 190.3(b) (stating when discovery period ends in cases governed by Level 2 discovery control plan). A trial court may modify a discovery control plan at any time, and it “must do so when the interest of justice requires.” TEX. R. CIV. P. 190.5. Rule 190.5 provides that unless the case is governed by rules concerning expedited actions, the court must allow additional discovery: related to new, amended or supplemental pleadings, or new information, disclosed in a discovery response or in an amended or supplemental response, if: the pleadings or responses were made after the deadline for completion of discovery or so nearly before that deadline that an adverse party does not have an adequate opportunity to conduct discovery related to the new matters, and the adverse party would be unfairly prejudiced without such additional discovery; regarding matters that have changed materially after the discovery cutoff if trial is set or postponed so that the trial date is more than three months after the discovery period ends. Id. Relevant Facts In August 2019, before the case went to trial, the trial court held a temporary injunction hearing relating to a condemnation proceeding involving Rescue Concepts, the Texas Department of Transportation, and a right-of-way across the property for the Grand Parkway. HouReal requested that the trial court order Rescue Concepts to deposit approximately $1,450,000 in proceeds from this proceeding into the registry of the court. The trial court denied this relief. The next day, Rescue Concepts sold the property to a third party, NPH Dayton, LLC. The deed from this sale was recorded in the Liberty County property records. HouReal did not learn of the sale of the property until December 2019. It filed a motion for sanctions, arguing that Rescue Concepts and its attorneys had an obligation to disclose the pending sale of the property to the court and HouReal. It also argued that Rescue Concepts had a duty to respond to HouReal’s discovery requests, including its requests for productions. HouReal argued that, instead, Rescue Concepts “closed on the sale for a large sum of money, on information and belief, $20,000,000, without any disclosure to anyone.” In its reply, HouReal pointed out that it had asserted a claim for specific performance of the earnest money contract, and therefore it had “plead for a right to the Property.” Additionally, in a supplement, HouReal attached the March 2019 deposition of Smith, who stated that Rescue Concepts had received “unsolicited offers to purchase the property from third parties.” Smith also testified that while the property was not under contract at the time of her deposition, based on recent offers to purchase the property, she believed it was worth approximately $20,000,000. HouReal then filed a motion to compel, requesting that the court order Rescue Concepts to produce “the documents related to the sale of the property in this dispute” and to present Liska and the president of NPH Dayton for oral deposition. It argued that Rescue Concepts’ sale of the property “eliminated any right [HouReal] had to file an abstract against the Property” and that the failure to disclose the sale resulted in Rescue Concepts’ “diversion of the sales proceeds of approximately $20,000,000.00 to an unknown third party.” HouReal pointed out that, early in the litigation, it had served a request for production asking Rescue Concepts to produce all documents between Rescue Concepts and any third parties “related to the 300+ acres in Liberty County, Texas that is the subject of the purchase contract in dispute in this case.” In response to the motion for sanctions, Rescue Concepts argued that no rule imposed a duty to disclose pending sales transactions. It further argued that it had properly responded to all discovery requests and pointed out that, four years earlier, the court had denied HouReal’s motion to compel documents concerning negotiations with third-party purchasers of the property. Rescue Concepts also noted that, in a prior mandamus proceeding in 2016, this Court had expunged a notice of lis pendens that HouReal placed on the property, and HouReal had never obtained an injunction prohibiting the sale of the property. See In re Rescue Concepts, Inc., 498 S.W.3d 190 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding) (conditionally granting mandamus relief and ordering trial court to expunge HouReal’s notice of lis pendens). As a result, Rescue Concepts was free to sell its property. In response to the motion to compel, Rescue Concepts argued that HouReal was not entitled to documents related to the sale or entitled to depose Liska or NPH Dayton’s president because (1) the discovery period had ended years before; (2) the evidence was not relevant to any issue in the case; and (3) the court had already ruled that HouReal was not entitled to discover information about pending sales of the property. Rescue Concepts argued that information concerning the 2019 sale was not relevant because it sought only liquidated damages under the contract and not damages related to lost sales opportunities. Moreover, NPH Dayton’s president’s knowledge of the 2019 sale had no relevance to the alleged breach of contract in 2014. Rescue Concepts also noted that while HouReal sought specific performance, it did not have a viable claim for that relief because the contract stated that time was of the essence, but HouReal did not tender the purchase price and demand a deed before the closing date. Instead, it waited until its first amended petition in May 2015 to assert a claim for specific performance. Rescue Concepts also argued that, under Property Code section 12.0071(c)(2), because HouReal’s notice of lis pendens was expunged, a third-party purchaser of the property such as NPH Dayton was protected from any claims asserted by HouReal, including claims for specific performance. After a hearing that addressed the motion for sanctions, the trial court denied both HouReal’s request for sanctions and its motion to compel. Analysis On appeal, HouReal argues that information about the August 2019 sale of the property to NPH Dayton was relevant to the issue of HouReal’s damages “because it showed that the market value of the Property was higher than HouReal’s Contract price.” It further argues that the requested discovery “would have provided HouReal with evidence of the Property’s market value and of HouReal’s damages”; the deposition testimony that it sought “would have been highly relevant to the remedies available to HouReal for [Rescue Concepts'] breach of contract”; and the purchase price from the August 2019 sale “would have been relevant to HouReal’s claim for general damages measured by the loss of its benefit of the bargain and possibly other measures.” In breach of contract cases involving real estate, the measure of damages is the difference between the contract price and the property’s market value at the time of the breach. Barry v. Jackson, 309 S.W.3d 135, 140 (Tex. App.—Austin 2010, no pet.); see Westminster Falcon/Trinity L.L.P. v. Chong Shin, No. 07-11-0033-CV, 2012 WL 5231851, at *2 (Tex. App.—Amarillo Oct. 23, 2012, no pet.) (mem. op.) (“In cases where a vendor has the ability to perform, but is unwilling to do so, the measure of damages for breach of contract to sell real estate is the difference between the contract price and the market value of that property at the time of breach.”); Corpus Christi Dev. Corp. v. Carlton, 644 S.W.2d 521, 522 (Tex. App.—Corpus Christi–Edinburg 1982, no writ) (same). Market value is what a willing buyer under no compulsion to buy will pay to a willing seller under no compulsion to sell. Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 831 (Tex. 2014). A property’s market value may be determined by a “fair resale” of the property after notice to the party, but the resale must be within a reasonable time after the breach. Barry, 309 S.W.3d at 140–41. The plaintiff bears the burden to establish the property’s market value at the time of breach, and if it is relying on a later sale, it bears the burden to establish that the later sale was within a reasonable time. Id. at 141. Here, Rescue Concepts’ breach of the contract occurred no later than November 2014. Rescue Concepts sold the property to NPH Dayton in August 2019, nearly five years later. In arguing that evidence of this sale, including the purchase price, is relevant to the property’s market value at the time of breach and relevant to HouReal’s damages, HouReal makes no attempt to demonstrate that the later sale occurred within a reasonable time after the breach. See id. (noting that “[w]hat is a reasonable time is a question of fact, varied by the circumstances of each case”); see also Barraza v. Koliba, 933 S.W.2d 164, 170 (Tex. App.—San Antonio 1996, writ denied) (concluding that plaintiffs failed to establish damages when two valuations of property occurred six years apart and length of time between valuations “destroy[ed] any reasonable correlation for comparison in a damages calculation”). HouReal has not demonstrated that market conditions in November 2014 and August 2019 were comparable, or even that the condition of the property was comparable after this length of time. See Barry, 309 S.W.3d at 141 (noting that “one year can make an enormous difference in the value of real estate”); Naylor v. Siegler, 613 S.W.2d 546, 547 (Tex. App.—Fort Worth 1981, no writ) (“Real property has a fluctuating value. There is no way to ascertain at any given time what the value of a particular tract of real property might be in the future.”). We conclude that HouReal did not establish that information concerning the purchase price from the August 2019 sale was “relevant to the subject matter” of the pending action. See TEX. R. CIV. P. 192.3(a); see also TEX. R. EVID. 401; In re Nat’l Lloyds Ins. Co., 507 S.W.3d at 223. The trial court, therefore, did not abuse its discretion to the extent that it did not permit additional discovery concerning the August 2019 sale.[8] We overrule HouReal’s first issue. Exclusion of Damages Testimony In its second issue, HouReal argues that the trial court erroneously excluded damages testimony relating to the August 2019 sale of the property. Evidentiary rulings are committed to the trial court’s sound discretion. U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). A trial court abuses its discretion when it acts without regard for guiding rules or principles. Id. Even if the trial court errs in its evidentiary ruling, reversal of the judgment is only appropriate if the error was harmful, that is, if it probably resulted in an improper judgment. Id.; TEX. R. APP. P. 44.1. In its live pleading, HouReal sought specific performance of the earnest money contract. It also sought, in the alternative, “actual, special, and consequential damages as allowed by law in the maximum amount of $12,000,000.00, the amount of [HouReal's] lost revenues and/or profits.” In November 2019, the trial court signed an order granting Rescue Concepts’ motion to exclude the expert testimony of several of HouReal’s witnesses, including Peacock and Westergren. This order precluded these witnesses from offering any “opinion testimony.” HouReal does not challenge this order on appeal. During cross-examination of Liska, HouReal’s counsel asked Liska whether she and her husband—through Rescue Concepts—still owned the property at issue. Rescue Concepts objected on the basis that the question violated a motion in limine. The trial court agreed, stating that the testimony was not relevant. Counsel then asked Liska to examine the pleadings and state how much HouReal was seeking in damages. Rescue Concepts again objected. During the ensuing bench conference, Rescue Concepts’ counsel stated that “[t]he amount of the property’s value is not damages in this case.” HouReal’s counsel then argued that testimony about the purchase price of the August 2019 sale was relevant to HouReal’s damages because if HouReal “had been able to buy the property for $12 million [the original contract price in 2014], [it] would have been able to sell [the property] for $25 million, but [Rescue Concepts] kept it all a secret.”[9] The trial court sustained the objection, struck the testimony, and instructed the jury that “right now we have a breach of contract claim for $50,000,” and the property value is “not before us today.” As we discussed above with respect to the denial of HouReal’s request for additional discovery, the measure of HouReal’s damages is the difference between the contract price and the property’s market value at the time of the breach. Barry, 309 S.W.3d at 140; see Westminster Falcon/Trinity L.L.P., 2012 WL 5231851, at *2; Corpus Christi Dev. Corp., 644 S.W.2d at 522. Although a property’s market value may be determined by a “fair resale” of the property after notice to the party, the resale must be within a reasonable time after the breach. Barry, 309 S.W.3d at 140–41. HouReal, however, presented no argument or evidence that the August 2019 sale occurred within a reasonable time after the breach in late 2014, such that the market value of the property in 2019 could be used to ascertain the market value at the time of the breach. We therefore hold that the trial court did not abuse its discretion in excluding any testimony from Liska concerning the August 2019 sale. See U-Haul Int’l, 380 S.W.3d at 132. We overrule HouReal’s second issue. Conclusion We reverse the judgment of the trial court and render judgment that Rescue Concepts is entitled to release of the $50,000 in earnest money deposited with Stewart Title and that HouReal take nothing on its claims. We remand the case for the purpose of determining Rescue Concepts’ reasonable attorney’s fees and assessing its costs. April L. Farris Justice Panel consists of Chief Justice Radack and Justices Countiss and Farris.
