I respectfully dissent.
This is an appeal from an order enforcing a final decree of divorce that had been entered on June 6, 1980. Appellant had originally attempted to attack the decree by direct appeal, but this Court in Garza v. Garza, 608 S.W.2d 260 (Tex.Civ.App. — San Antonio 1980, writ dism'd), affirmed on certificate the trial court's judgment due to appellant's failure to timely file the record.
The decree of divorce was entered following a hearing before the trial court. As part of the decree, the property of the parties was divided as required by TEX.FAM CODE ANN. § 3.63 (Vernon 1975). Simon Garza was divested of his interest in the community real property at 8122 and 8106 Hausman Road, Bexar County, Texas, and the property was awarded to Carmen Keever de Garza as her sole and separate property, subject to payment of the balance due on the note secured thereby and subject to an "option" granted to Mr. Garza "to buy this item of real property . . . for the sum of One Hundred Eleven Thousand Six Hundred and No/100 Dollars ($111,600.00) and the assumption of the debt thereon, which . . . must be exercised within ninety (90) days after the entry of [the decree]. . . ." If the "option" was not exercised within the time period, the award of the property to Mrs. Garza was to be complete and final.
On September 3, 1980, Mr. Garza, through his attorney of record, filed with the trial court, a "Notice of Exercise of Option," with a copy served on Mrs. Garza through her attorney of record.1
On March 30, 1981, Mr. Garza filed an instrument entitled Motion to Enforce Judgment in an attempt to compel Mrs. Garza to convey the Hausman Road property to him.
On April 9, 1981, Mrs. Garza filed a Plea in Bar and Reply to Motion to Enforce Judgment. In her pleading, appellant denied having received tender of the purchase price called for in the option. Appellant alleged that appellee's motion to enforce judgment was an attempt to require specific performance of the option and, therefore, a separate lawsuit should be filed. Specifically, appellant claimed that the questions of whether there was a valid option and whether there was a true and timely exercise of the option were fact questions for a jury.
Following a hearing on appellee's motion, the trial court entered an order enforcing judgment. Such order required Mrs. Garza to execute all instruments necessary to effect the conveyance. In response to the court's order, various other pleadings were filed by appellant. On May 6, 1981, an Amended Order Enforcing Judgment was entered by the trial court in which Mrs. Garza was again ordered to convey the property to appellee. Findings of fact and conclusions of law were filed on July 23, 1981.
In her fifth point of error, appellant alleges she was entitled to a jury trial on the issue of whether appellee was entitled *Page 211 to specific performance. I agree with appellant's contention.
The judgment of the trial court granted Mr. Garza an option to purchase the Hausman Road property. By the granting of the option, the trial court, as a practical matter, was imposing a potential contract on the parties. Should appellee have sought to properly exercise the option, a contract would have arisen between the parties. In essence then, a separate lawsuit was being created should a question arise as to the timeliness and manner of the acceptance.
In order to be enforceable, the option had to be exercised before the offer lapsed. See Sheppard v. Andrews,7 N.C. App. 517, 173 S.E.2d 67 (1970); J. CALAMARI J. PERILLO, CONTRACTS § 2-27 (2d ed. 1977). Although it was undisputed that Mr. Garza gave notice on September 3, 1980, to appellant'sattorney of record, certain issues were clearly in dispute, namely, the issues as to whether Mrs. Garza actually received timely notice of appellee's exercise of the option and whether there was a timely tender of the purchase price within the ninety (90) day period. Such questions were raised in the pleadings and remained unresolved at the time of the hearing. Therefore, these crucial fact issues, upon timely demand, should have been submitted to a jury in a separate suit for specific performance rather than simply heard before the trial court.
It is noteworthy that the court itself, recognized, at the time of the hearing, that there was an issue as to whether proper tender had been made. In fact, the court even allowed the parties to elicit testimony regarding the matter.
Appellant sought to enforce the option by filing a "motion to enforce judgment." As a general rule, a court having jurisdiction to render a particular judgment has inherent power and authority to enforce it. See Ex parte Gonzalez,111 Tex. 399, 238 S.W. 635 (1922); Taylor v. Taylor,348 S.W.2d 226 (Tex.Civ.App.-Houston 1961, no writ); 46 AM.JUR.2d Judgments § 898 (1969). Such power and authority, however, extends to those cases where the rights of the respective parties have been declared and all that remains is the issuance of process or orders to carry its terms into execution. Smith v. Miller, 66 Tex. 74, 17 S.W. 399 (1886);Swafford v. Holman, 446 S.W.2d 75 (Tex.Civ.App.-Dallas 1969, writ ref'd n.r.e.).
Although appellee labeled the action a "motion to enforce judgment," in actuality, he sought specific performance of the alleged option contract, since the judgment itself was not self-executing.
An option to buy or sell land, more than any other form of contract, contemplates a "specific performance" of its terms.Dickinson v. McKenzie, 197 Ark. 746, 126 S.W.2d 95 (1939); 71 AM.JUR.2d Specific Performance § 142 (1973). Moreover, the law is clear that either party is entitled to a jury in a suit for specific performance. SeeStrong v. Jolley, 378 S.W.2d 344 (Tex.Civ.App. — Austin 1964, no writ); Arredondo v. Mora, 340 S.W.2d 322 (Tex.Civ.App.-El Paso 1960, writ ref'd n.r.e.);Schawe v. Giles, 55 S.W.2d 588 (Tex.Civ.App. — San Antonio 1932, writ ref'd); Gossett v. Harris, 48 S.W.2d 739 (Tex.Civ.App.-Texarkana 1932, no writ);Burroughs v. Smith, 294 S.W. 948 (Tex.Civ.App. — Fort Worth 1927, writ ref'd); 52 TEX.JUR.2d SpecificPerformance § 141 (1964).
A motion to enforce is clearly distinguishable from a suit for specific performance. While a motion to enforce is generally a legal remedy, ancillary to a prior proceeding, a suit for specific performance is an equitable remedy and takes on the nature of an independent lawsuit. Moreover, a motion to enforce may be brought at any time, while a suit for specific performance is governed by a four year statute of limitations.See TEX.REV.CIV.STAT.ANN. art. 5531 (Vernon 1958).
Although I am unable to find a case exactly on point,Browning v. Holloway, 620 S.W.2d 611 (Tex.Civ.App. — Dallas), writ ref'd n.r.e. per curiam, 626 S.W.2d 485 (Tex. 1981), warrants attention. In Browning, plaintiffs sued defendants alleging the breach of duties imposed by express and implied trusts. The parties sought to settle the suit by reading into the *Page 212 court record a "stipulation of settlement." Plaintiffs later announced their repudiation of the settlement agreement and set the case for trial on the merits. Five days prior to the trial, a hearing was held to dispose of all preliminary matters preparatory to trial. One of the "preliminary matters" considered was defendant's "Motion to Enforce Stipulation of Agreement." Testimony was received at the hearing on the motion to enforce at which time plaintiffs objected that they were denied a jury trial on relevant factual matters. Defendants countered that plaintiffs were not entitled to a jury trial because they failed to request trial by jury or to pay the necessary fee. Thereafter, the court entered judgment from which an appeal was taken. Id. at 613-614. One of the issues on appeal was whether the trial court erred in failing to afford plaintiffs a jury trial on a disputed issue of fact, namely, whether there had been a repudiation of the settlement agreement. Id. at 613.
In response to this question, the Dallas Court of Civil Appeals stated:
Id. at 615-616. Moreover the Court held:[t]he case . . . never reached the point where relevant factual issues were properly resolved, and so remains undeveloped. The error lies . . . in failing to try factual matters relating to the defensive issues, and to the merits of the case if necessary, before a jury.
Id. at 617.Because we consider the agreement to be an executory accord, we can affirm the trial court's judgment only if we conclude that the court impliedly found no repudiation by the defendants and no damages for breach of the contract, both of these issues being raised by the pleadings. Under the facts of this case, the court was not justified in trying these fact issues without a jury.
In the instant case, certain defensive matters were also raised. Appellant alleged appellee had neither timely notified her of his exercise of the option nor had appellee timely tendered the purchase price. Only after these matters were properly resolved in favor of appellee, could the option be properly enforced. Therefore, I believe the trial court in the case at bar, erred in failing to submit these issues to a jury.
It follows that if appellee sought to enforce the option, he could do so only by filing a separate suit for specific performance. By labelling the cause of action a "motion," rather than a suit for specific performance, appellee successfully deprived appellant of a jury trial. TEX.R.CIV.P. 21 states, in pertinent part:
An application to the court for an order and notice of any hearing thereon, not presented during a hearing or trial, shall be served upon the adverse party not less than three days before the time specified for the hearing . . .
Appellee clearly complied with the notice requirement set out above. He filed his "motion" on March 30, 1981, and the fiat on the "motion" was signed by the judge on March 31, 1981. A hearing was set for April 9, 1981. By cleverly filing the "motion" within ten days prior to the hearing and by mailing a copy to appellant sometime on or after March 31, 1981, appellee clearly precluded appellant from complying with the jury demand requirements set out in TEX.R.CIV.P. 216.2
It is undisputed, however, that appellant sought a trial by jury. Cf. Browning, 620 S.W.2d at 617. Upon examination of the transcript filed with this cause, the Court states in its finding of fact and conclusions of law:
*Page 213The Court finds that CARMEN KEEVER de GARZA was not entitled to a jury trial when demanded on the morning of
the hearing of the Motion to Enforce the Judgment.
Taking into consideration the fact that appellant was precluded from complying with Rule 216, appellant did all she could to secure a jury trial.
There is nothing in the record before this court as to whether appellant's jury demand was accompanied by the payment of a jury fee. Ordinarily, a jury demand is insufficient to secure the jury trial right unless accompanied by payment of the jury fee. Browning, 620 S.W.2d at 617 citing TEX.R.CIV.P. 216. However, Rule 216 requiring payment of the jury fee is not to be strictly construed; it is directory rather than mandatory. Id. Accordingly, if it would not injure the adverse party and would not disrupt the court's docket, then it is error to deny the right to trial by jury.Id.
I would reverse and remand for a retrial before a jury.
Comes now Simon T. Garza, Respondent in the above proceeding, and exercises his option to purchase real property and shows the court as follows . . .
The trial court's Findings of Fact and Conclusions of Law also recognize the granting of an option to purchase . . . real estate . . . An "option" to purchase land is a "contract" by which the owner agrees with another that the latter shall have the right to buy the property within a specified time, but the owner does not thereby sell the property, nor agree to do so, but merely sells the right or privilege to buy at the election of the opposite party. Ferguson v. Seggern, 434 S.W.2d 380 (Tex.Civ.App.-Dallas 1968, writ ref'd n.r.e.); Hamburger Dreyling v. Thomas, 118 S.W. 770, 773 (Tex.Civ.App. 1909), aff'd, 103 Tex. 280, 126 S.W. 561 (1910).