dissenting.
I respectfully dissent.
I would affirm the judgment in the trial court, determining the location of the fifty acre plot is a condition precedent to the contract. However, the trial court erred in granting Tew’s directed verdict on Thedford’s fraud claim.
A condition precedent is “an event that must happen or be performed before a right can accrue to enforce an obligation.” Centex Corp. v. Dalton, 840 S.W.2d 952, 956 (Tex.1992) (citing Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1 (Tex.1976)). The Texas Supreme Court defined “[conditions precedent to an obligation to perform [as] ... those acts or events, which occur subsequently to the making of contract, that must occur before there is a right to immediate performance and before there is a breach of contractual duty.” Hohenberg Bros. Co., 537 S.W.2d at 3; Restatement of Contracts § 250 (1932).
This court’s opinion states that the “essence of the parties’ agreement is the sale of real estate.” And that was true with the original contract, as well as section (H)(1) of the amended contract. Both the original agreement between Thedford and Tew and the steps to execute section (H)(1) of the amended contract were very straightforward: Thedford Crossing, L.P., was to pay Tyler Rose Nursery, Inc. and Joe Tew $6,000,000 for the purchase of the entire 361 acres of land. In such an agreement, where the land is clearly identified, and the amount to be paid is stated, on the date of the closing the buyer gives the seller the agreed purchase price, and the seller executes the necessary documents to effectuate the transfer of land’s title to the buyer.
However, as is found in the August 2005 amended contract, under section (H)(2), the provision under which Thedford and Tew proceeded, where there is not a direct money-for-deed exchange but rather, a pay-out and a release of various portions of the 361 acres in stages over a number of years, there are other considerations to be addressed.
Indeed, both Thedford and Tew recognized that, with the piecemeal sale of such a large tract of land over four years, some land is far more valuable than other portions of the land in the initial stages of the land’s parsed out sale and development. For instance, road frontage property could be perceived as being more beneficial for the buyer to acquire first, with which to both begin development and, perhaps, to fund the later purchases. One could assume that the more highly desired land would be situated somewhere along one or at the nexus of both of the two main highways that fronted the property, Interstate 20 and U.S. Highway 69.
By the explicit terms of the August 2005 amended contract, Thedford and Tew did recognize that the location of the initial fifty acres of land to be released would be critical to the implementation of the contract to which they were agreeing, specifically stated that the placement and determination of the exact parameters of that parcel of land would have to be “mutually agreed upon” by both Thedford and Tew. *875-885By that provision, the two parties made that contract term essential, requiring the resolution of the exact location of the land before the parties could proceed with the sale. Thedford and Tew both viewed the issue of the location and shape of the initial fifty acres as so critical to the contract that, despite the omission of numerous other seemingly important conditions to the sale, this condition, the location of that fifty acres, was the only term of the contract that specifically required mutual agreement between the two parties before the release of the initial fifty acres to Thedford.
The two parties having contracted that they had to mutually agree to the location of that initial fifty acres of land rendered that term a condition precedent. Therefore, I would uphold the trial court’s jury charge instruction providing for a conditional response to Jury Question 2, and would affirm the judgment on that issue.
However, there was some conflicting evidence regarding Thedford’s fraud claim. Because Thedford did adduce some evidence which raised a fact issue, the trial court erred in granting a directed verdict on the issue of Thedford’s fraud claim. Therefore, I would reverse on that issue.