In Re Shawn Deane Gruss, as Independent of the Estate of Maurita J. Gallagher, and Nuclear Sources and Services, Inc. v. the State of Texas

Petition for Writ of Mandamus Conditionally Granted in Part and Denied in
Part and Opinion filed December 21, 2023.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-23-00147-CV
                             NO. 14-23-00148-CV
                             NO. 14-23-00149-CV

IN RE SHAWN DEANE GRUSS, AS INDEPENDENT EXECUTOR OF THE
  ESTATE OF MAURITA J. GALLAGHER; AND NUCLEAR SOURCES
                AND SERVICES, INC., Relators

                       ORIGINAL PROCEEDING
                         WRIT OF MANDAMUS
                           Probate Court No. 3
                           Harris County, Texas
        Trial Court Cause Nos. 442,656, 442,656-401, and 442,656-402

                                OPINION

      In three mandamus proceedings relators Shawn Deane Gruss, as
Independent Executor of the Estate of Maurita J. Gallagher and Nuclear Sources
and Services, Inc. (collectively the “Gruss Parties”) argue that respondent the
Honorable Jason Cox clearly abused his discretion by issuing paragraphs 3 through
5 of identical interlocutory judgments rendered in three probate court cases and
that the Gruss Parties have no adequate remedy at law. The Gruss Parties seek
mandamus relief directing respondent to withdraw or vacate paragraphs 3 through
5 of the judgments and to issue a declaratory judgment that (1) the Estate owns
100% of the stock of Nuclear Sources and Services, Inc. and (2) the failure to pay
the purchase price for the stock discharges or excuses the Estate from any
obligation to perform under the stock purchase agreement at issue. We agree that
the requirements for mandamus relief have been satisfied, and we grant the
mandamus relief requested in part and deny it in part.
                   I. FACTUAL AND PROCEDURAL BACKGROUND

      Relator Nuclear Sources and Services, Inc. (the “Company”) is a closely
held corporation founded in 1971 by Robert Gallagher. The Company processes
nuclear and other toxic waste chemicals. Before his death Robert owned 100% of
the stock of the Company. Robert died on October 8, 2014, and the assets of his
estate, including the Company stock, passed under the terms of his will to his
surviving spouse, Maurita Gallagher.

      Maurita died on August 25, 2015, and the stock of the Company became an
asset of Maurita’s estate. Robert’s daughter, Shawn Deane Gruss, qualified as
independent executor of Maurita’s estate. Shawn asked her half-brother Gary W.
Gallagher (“Gary”), son of Robert and a beneficiary of Maurita’s Estate, to assist
Shawn in handling the Company. Gary was familiar with the Company and
understood aspects of its business and operation.

      Gary and Shawn determined that the valuation of the Company set at the
time of Robert’s death was inaccurate. The Company was listed at a value of
$12,600,000 in the sworn inventory of Robert Gallagher’s Estate, filed on March
16, 2016, by Charles Gallagher, Independent Executor of the Estate of Robert
Gallagher, Deceased. New valuations of the Company were performed that put the

                                         2
value of the Company at a substantially lower price. After these valuations, the
Company was valued at $1.91 million, as reflected in the sworn inventory that the
Estate of Maurita J. Gallagher, Deceased (the “Estate”) filed on November 25,
2016.

          On August 16, 2016 (the “Date”), NSSI Acquisition Trust (“Acquisition
Trust”) was created for the purpose of buying 100% of the outstanding common
stock of the Company (the “Shares”). On that same date, Shawn Deane Gruss, as
Independent Executor of the Estate of Maurita J. Gallagher, Deceased (the
“Executor”) and Gary as member of the Board of Trustees of Acquisition Trust,
signed a Stock Purchase Agreement (the “Agreement”) effective as of May 1,
2016. The Agreement provided terms and conditions for Acquisition Trust to
purchase the Shares from the Estate. The Agreement was signed in the offices of
Brent R. Caldwell, a lawyer who represented the Executor when the Agreement
was drafted and signed. Caldwell was also a member of the Company’s Board of
Directors and a member of the Board of Trustees of Acquisition Trust, as of its
formation on the Date. The Executor testified that (1) on the Date, an irrevocable
stock power was also signed; (2) Caldwell “had a certificate for the stock”; (3)
Caldwell retained the original stock certificate; and (4) Caldwell gave Gary a color
copy of the stock certificate.1

          The Agreement provided that the aggregate purchase price for the Shares
was $2,405,882.50 (the “Purchase Price”). It is undisputed that to date, Acquisition
Trust has not paid the Estate any part of the Purchase Price. Various disputes arose
relating to the Company, including a dispute between the Executor and Acquisition
Trust as to the meaning of the Agreement’s language and as to whether the
Independent Executor or Acquisition Trust owns the Shares.

1
    No irrevocable stock power or stock certificate was part of the trial evidence.

                                                   3
                                     The First Case
       In cause number 442,656 in Harris County Probate Court Number 3,2
Plaintiffs Sandra Bentley, Timothy Meyers, and Christina Meyers, beneficiaries of
the Estate (the “Bentley Parties”), each individually and derivatively on behalf of
the Company filed claims against the Executor, Gary, Gary’s son-in-law Daniel
Webster Keough (“Web”), Gary’s daughter Danielle Keough (“Danielle”),
Caldwell, Diversified Management Services, LLC (“Diversified”), Acquisition
Trust, and NSSIDMS Houston, LLC (“NSSIDMS”). In this case (the “First Case”),
the Bentley Parties asserted a declaratory judgment action against all defendants
seeking declarations regarding the Agreement, any purported sale of the Shares by
the Executor without court approval, a Business Services Agreement, and Gary and
Web’s Executive Employment Agreements. The Bentley Parties also asserted (1)
breach-of-fiduciary-duty claims against Gary, Web, Caldwell, and the Executor;
(2) waste of corporate asset claims against Gary, Web, and Caldwell; (3) an action
to rescind certain transactions against Gary, Web, and Caldwell; (4) fraud claims
against Gary, Acquisition Trust, and Diversified, and (5) conversion claims against
all defendants. The Executor settled the Bentley Parties’ claims against her, and the
Bentley Parties assigned their claims against the other defendants to the Executor.
In the First Case, the Executor also asserted a crossclaim against Caldwell, Gary,
and Danielle as trustees of Acquisition Trust, seeking a declaration that the Estate
is the lawful owner of the Shares.
       On August 13, 2019, the trial court signed a temporary injunction in the First
Case enjoining Gary, Web, Danielle, Diversified, Acquisition Trust, and
NSSIDMS from (1) holding themselves out as stockholders, officers, or directors
of the Company, (2) taking any position contrary to the Company’s current Board

2
 This cause number was assigned when the Executor filed an application to probate the will of
Maurita Gallagher.

                                             4
of Directors, (3) taking any action in furtherance of a sale of the Company’s stock
or assets, (4) making any withdrawals or authorizing any transfer of any funds
from any bank or brokerage account of the Company, Diversified, or NSSIDMS,
(5) taking any action as a shareholder of Acquisition Trust, and (6) engaging in any
self-dealing transactions or transactions with interested parties under section
21.418 of the Business Organizations Code. The trial court ordered the Company
to suspend performance of all contracts with any of the enjoined parties and
ordered the enjoined parties not to take any action against the Company to enforce
any purported contractual obligation of the Company without the trial court’s
permission.
                                  The Second Case
      In Cause No. 442,656-401 (the “Second Case”), the Executor sued
Diversified as Trustee of Acquisition Trust seeking (1) the following declaratory
relief: (a) a declaration as to the rights of ownership in the Shares, and (b) a
declaration that the Estate owns the Shares; (2) the following injunctive relief: (a)
an injunction that Diversified not assert any position contrary to the Company’s
Board of Directors; (b) an injunction that Diversified not make any withdrawals or
authorize any transfers from any bank or brokerage account maintained by the
Company or Diversified (to the extent the Company’s funds are in such accounts);
(c) an injunction that Diversified not engage in any transactions that constitute self-
dealing and that Diversified not otherwise enter into transactions with interested
parties under section 21.418 of the Business Organizations Code; and (d) an
injunction that Diversified not take any action in furtherance of a sale or potential
sale of the Company to any buyer.
      In the Second Case on August 13, 2019, the trial court signed a temporary
injunction whose body contains the same text as the August 13, 2019 temporary
injunction in the First Case. In this second temporary injunction, the trial court
                                          5
enjoins Gary, Web, Danielle, Acquisition Trust, and NSSIDMS even though none
of them is a party in the Second Case.
                                  The Third Case
      In Cause No. 442,656-402 (the “Third Case”), the Company sued Gary,
Web, Caldwell, and Diversified, asserting the following claims: (1) breach-of-
fiduciary-duty claims against Gary, Web, and Caldwell; (2) money-had-and-
received claims against Gary, Web, and Diversified; (3) Theft Liability Act claims
against Gary, Web, and Diversified; (4) conversion claims against Gary, Web, and
Diversified; (5) a negligence claim against Caldwell; and (6) a declaratory-
judgment action against all defendants seeking declarations that (a) Gary and
Web’s Executive Employment Agreements are each void as a matter of law; (b)
the Business Services Agreement between the Company and Diversified is void as
a matter of law; and (c) the website “nssienvironmental.com” belongs to the
Company.
      The trial court did not issue any temporary injunction in the Third Case.
Although the Company sought declaratory relief, the Company did not seek a
declaratory judgment as to the ownership of the Shares or as to the effect of the
Agreement on the transfer of ownership of the Company’s stock from the Executor
to Acquisition Trust.
                     The Trial Court’s Separate Trial Order
      The Executor filed an opposed motion to consolidate the three cases, along
with two cases regarding the Estate of Robert Gallagher, into a single case. The
Company joined the motion. In an order entitled “Order on Shawn Deane Gruss’s
First Amended Motion to Consolidate Joined by [the Company],” the trial court
stated that this motion came on to be heard, and then proceeded to not rule on
consolidation. Instead, the trial court stated that “by agreement between counsel,
two (2) issues shall be tried to the bench.” The trial court ordered that “the cause of

                                          6
action pled in [the First Case, the Second Case, and the Third Case] for a
declaratory judgment as to the effect of the [Agreement] on the transfer of
ownership of the [Shares] from the [Estate] to [Acquisition Trust] shall be tried to
the bench on [a specified date].” The trial court also ordered that the claims in one
of the cases regarding the Estate of Robert Gallagher “shall also be tried to the
bench if same is necessary.”3 Although the trial court stated in this order that there
was a claim in the Third Case for declaratory relief regarding the Agreement, there
never has been any claim for such relief in the Third Case. Although the trial court
suggested that it was ruling on the Executor’s motion to consolidate, the court
never ruled on this motion, and the First Case, Second Case, and Third Case
remain unconsolidated. Instead of granting consolidation, the trial court effectively
determined that a declaratory-judgment claim allegedly pending in the three cases
should be tried together in a bench trial separate from the trial of the remaining
claims in each of the respective cases. So the substance of the order is a separate
trial order rather than a consolidation order.

                             A Bench Trial and A Judgment

       The trial court conducted a two-day bench trial on the claims for declaratory
relief allegedly pending in the three separate cases. After trial the court signed a
judgment that was entered by the clerk in each of the three cases. In the judgments,
the trial court stated in pertinent part:

    • “The causes of action tried to the bench related only to [the Executor’s]
      request for a declaratory judgment as to the effect of the [Agreement] on the
      transfer of ownership of the [Shares] from the Estate to [Acquisition Trust]
      in [the First Case, the Second Case, and the Third Case].”
    • The trial court ordered “that pursuant to the terms of the [Agreement], the

3
  Apparently trying the claims in this case was not necessary because the record reflects that the
trial court did not try these claims along with the declaratory-judgment claims mentioned.

                                                7
       Closing commenced on [the Date] (“Closing”), but has not been completed;
       accordingly, [Acquisition Trust] has sixty (60) days from the date of this
       Order to pay the Purchase Price of . . . ($2,405,882.50) to the Estate for the
       [Shares] as set forth in the [Agreement] between the [Estate] and
       [Acquisition Trust] entered into [on the Date] [and] dated effective May 1,
       2016 . . . to finalize the Closing.”
    • The trial court ordered “that upon timely delivery of the [Purchase Price] the
      stock shall remain in the possession, ownership and control of [Acquisition
      Trust]; however, if the [trustees of Acquisition Trust] fail to pay the
      Purchase Price to the Estate by no later than sixty (60) days from the date of
      this Order, the [Agreement] is null and void and ownership of the [Shares]
      will vest with the Estate, which shall be declared the lawful owner of the
      [Shares].”
    • The trial court also ordered “that in the event [Acquisition Trust] pays the
      Purchase Price to the Estate within sixty (60) days of this Order then all
      other terms of the [Agreement] shall remain in place, including but not
      limited to, [the Estate’s] right within sixty (60) days after receipt of the
      Purchase Price to obtain a current Adjusted Valuation (i.e., “Fairness
      Opinion”).”
    • The trial court ordered that its “Temporary Injunction, dated August 13,
      2019, is DISSOLVED.”4
    • The trial court further ordered “that the current books and records of [the
      Company] shall be made available to [Acquisition Trust] immediately and
      the parties shall cooperate to provide [Acquisition Trust] access to [the
      Company] at a mutually agreed date and time but no later than [within] two
      (2) weeks of the date of this judgment.”
    • The trial court ordered “that no expenditures or distributions shall be made
      by [the Company] other than in the ordinary course of business without prior
      approval of the Court.”
The trial court did not rule on the parties’ requests for attorney’s fees but stated in
the judgment that the parties could submit applications for attorney’s fees as to the
claims tried in the bench trial within 90 days of the date of the judgment.
       The Gruss Parties timely perfected an interlocutory appeal from the identical
4
  Presumably the trial court meant to dissolve the temporary injunction it issued on that date in
the First Case and the temporary injunction it issued on that date in the Second Case.

                                               8
judgments that the trial court rendered in each of the three cases (collectively the
“Judgments”). In each judgment, the trial court ordered all remaining claims in
each of the three cases to be tried to the bench on a specified date, but before that
date, the trial court granted the Executor’s motion to abate each of the three cases
pending the disposition of the interlocutory appeal in each case by the Gruss
Parties. The trial court also issued findings of fact and conclusions of law.
                                The Interlocutory Appeals

       In the interlocutory appeals, this court concluded that it had appellate
jurisdiction over paragraphs 6 and 7 of the Judgments under section 51.014(a)(4)
of the Civil Practice and Remedies Code.5 See Gruss v. Gallagher, —S.W.3d—,—,

, at *1 (Tex. App.—Houston [14th Dist.] Feb. 14, 2023, no pet.
h.). This court reversed paragraph 7 and the second sentence of paragraph 6 of the
Judgments, declared these parts of the Judgments void for failure to fix the amount
of security to be given, and order them dissolved. 

 After concluding that the trial
court erred in granting a motion to dissolve temporary injunction in the first
sentence of paragraph 6 of the Judgments, this court reversed this sentence and
rendered judgment denying the motion to dissolve. 

 After determining that this
court lacked appellate jurisdiction over paragraphs 3-5 of the Judgments, this court
dismissed the Gruss Parties’ fourth, fifth, sixth, and seventh issues for lack of
appellate jurisdiction. 

 This court did not treat the appellants’ brief as a petition
for writ of mandamus. 

5
 As requested by the Gruss Parties, we take judicial notice of the original clerk’s record and the
supplemental clerk’s records in Cause Nos. 14-21-00178-CV, 14-21-00179-CV, and 14-21-
00180-CV in this court, and we consider their contents to be including in the mandamus record
for this proceeding. See In re Sowell, No. 14-21-00387-CR, 

, at *1 n.2 (Tex.
App.—Houston [14th Dist.] Sept. 14, 2021, orig. proceeding) (mem. op.) (per curiam).


                                                9
                     The Gruss Parties’ Mandamus Petition

      After this court issued its opinion and judgment in the interlocutory appeals,
the Gruss Parties filed a Petition for Writ of Mandamus seeking mandamus relief
as to each of the Judgments. Real parties in interest Gary W. Gallagher, Danielle
Keogh, Daniel Webster Keogh, Diversified Management Services, LLC, and NSSI
Acquisition Trust (collectively the “Gallagher Parties”) have filed a response in
opposition to the Gruss Parties’ mandamus petition. Real parties in interest Brent
R. Caldwell and NSSIDMS Houston, LLC have not filed a response.

                             II. ISSUES AND ANALYSIS

      The Gruss Parties seek mandamus relief directing the respondent to
withdraw or vacate paragraphs 3 through 5 of the Judgments and to issue a
declaratory judgment that the Estate owns the Shares and that Acquisition Trust’s
failure to pay the Purchase Price for the Shares discharges or excuses the Estate
from any obligation to perform under the Agreement. To obtain mandamus relief, a
relator generally must show both that the trial court clearly abused its discretion
and that the relator lacks an adequate remedy at law, such as an appeal. In re
Prudential Ins. Co. of Am., 

, 135–36 (Tex. 2004) (orig.
proceeding). A trial court clearly abuses its discretion if it reaches a decision so
arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if
it clearly fails to analyze the law correctly or apply the law correctly to the facts.
In re Cerberus Capital Mgmt. L.P., 

 (Tex. 2005) (orig.
proceeding) (per curiam). “In determining whether the trial court abused its
discretion with respect to resolution of factual matters, we may not substitute our
judgment for that of the trial court and may not disturb the trial court’s decision
unless it is shown to be arbitrary and unreasonable.” In re Sanders, 

 (Tex. 2004) (orig. proceeding) (per curiam). In other words, under an abuse-

                                         10
of-discretion standard, we defer to the trial court’s factual determinations if the
evidence supports them, but we review the trial court’s legal determinations de
novo. In re Labatt Food Serv., L.P., 

 (Tex. 2009) (orig.
proceeding). The refusal to enforce a contract according to its terms constitutes an
abuse of discretion that may be subject to mandamus relief. See In re
Prudential, 

; In re Cont’l Cas. Co., No. 14-10-00709-CV, 

, at *3 (Tex. App.—Houston [14th Dist.] Sep. 23, 2010, orig.
proceeding) (mem. op.).
A.    Did the trial court clearly abuse its discretion in interpreting the
      Agreement?
      In their sole issue, the Gruss Parties assert that the trial court committed an
abuse of discretion warranting mandamus relief in refusing to enforce the
Agreement according to its terms and instead awarding the relief in paragraphs 3
through 5 of the Judgments. We begin by examining the Agreement’s text.

      1. The Agreement’s Unambiguous Language

      The Agreement provides in pertinent part as follows:

      [The Agreement was] made and entered on [the Date] to be effective as of
      May 1, 2016, by and between [Acquisition Trust] and [the Estate] for the
      purchase of all outstanding and issued common shares of [the Company] a
      Texas corporation owned by the [Estate].
      1. Acquisition. Upon the terms and subject to the conditions set forth herein,
      and in accordance with the relevant provisions of the Corporation Law,
      [Acquisition Trust] or its designee shall purchase from [the Estate] and [the
      Estate] hereby agrees to sell, transfer and convey to the [Acquisition Trust]
      [the Shares], representing one hundred percent (100%) of the current issued
      and outstanding common stock of the Company. The Acquisition shall
      follow the satisfaction of the conditions set forth in Section 4.
      ...




                                         11
3. Purchase Price.

       a. The purchase price for each share of Stock shall be Forty[-]two and
          50/100 dollars ($42.50) for an aggregate purchase price of Two
          Million Four Hundred Five Thousand Eight Hundred Eighty[-]Two
          and 50/100 dollars ($2,405,882.50) (the “Purchase Price”), to be
          paid to the [Acquisition Trust] in cash or time deposits at or before
          the Closing or as otherwise mutually agreed upon by the [Estate and
          Acquisition Trust].

       b. This Agreement is subject to purchase price adjustments within
         sixty (60) days of the Closing. Within sixty (60) days, the [Estate]
         shall have the right to obtain an advanced fairness opinion from an
         independent third party which may include positive or negative
         adjustments from the valuation of the Company determined by
         Convergent Capital Appraisers (the “Adjusted Valuation”).
         [Acquisition Trust] shall have up to fifteen (15) months to pay any
         amount required from a purchase price adjustment (the “Residual”).
         If [Acquisition Trust] fails to pay any Residual owed then a pro rata
         portion of the Shares shall be returned to the [Estate]. The Residual
         shall be determined as follows:
             i. If the Adjusted Valuation is lower than the Purchase Price
                 then no purchase price adjustments will be made and no
                 Residual shall be paid.
             ii. Adjusted Valuation equal to or less than one hundred ten
                 percent (110%) of the Purchase Price:
                       1. No Residual shall be paid.

 ...

4. Closing. The Purchase contemplated by this Agreement is irrevocable
upon execution; however for the benefit of the [Estate] and [Acquisition
Trust] the closing contemplated by this Agreement for the transfer of the
Shares and the payment of the Purchase Price shall take place at the
Caldwell Law Firm on a mutually agreeable day and time (the “Closing”).
The certificates representing the Shares shall be duly endorsed for transfer or
accompanied by an appropriate stock transfer. Should the [Estate] not be
able to attend a physical closing and provided [Acquisition Trust] has made
provisions to provide the Purchase Price to the [Estate], [Acquisition Trust]
is specifically authorized, without any right to protest or relief by the
                                   12
      [Estate], to have the [Estate’s] stock certificate(s) canceled and the common
      stock acquired issued [sic] by the Company.
      ...
      11. Entire Agreement. This Agreement together with the other documents
      executed contemporaneously herewith, constitute the entire agreement
      between [the Estate and Acquisition Trust] with respect to the matters
      covered thereby, and may only be amended by a writing executed by [the
      Estate and Acquisition Trust].
      ...
      14. Waiver. No waiver [or] modification of any of the terms of this
      Agreement shall be valid unless in writing. No waiver of a breach of, or
      default under, any provision hereof shall be deemed a waiver of such
      provision or of any subsequent breach or default of the same or similar
      nature or of any other provision or condition of this Agreement.

      In construing a contract, our primary concern is to ascertain and give effect
to the intentions of the parties as expressed in the contract. Kelley-Coppedge, Inc.
v. Highlands Ins. Co., 

 (Tex. 1998). To ascertain the parties’
true intentions, we examine the entire agreement in an effort to harmonize and give
effect to all provisions of the contract so that none will be rendered meaningless.
MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 

 (Tex. 1999).
Whether a contract is ambiguous is a question of law for the court. Heritage Res.,
Inc. v. NationsBank, 

 (Tex. 1996). A contract is ambiguous
when its meaning is uncertain and doubtful or is reasonably susceptible to more
than one reasonable interpretation. 

 However, when a written contract is worded
so that it can be given a certain or definite legal meaning or interpretation, it is
unambiguous, and the court construes it as a matter of law. Am. Mfrs. Mut. Ins.
Co. v. Schaefer, 

 (Tex. 2003). We cannot rewrite the contract
or add to its language under the guise of interpretation. See American Mfrs. Mut.
Ins. Co., 

. Rather, we must enforce the contract as written. See
Don’s Bldg. Supply, Inc. v. OneBeacon Ins. Co., 

 (Tex. 2008).

                                        13
      Both the Gallagher Parties and the Gruss Parties contend that the language
of the Agreement at issue in today’s case is unambiguous. We agree. Under the
Agreement’s unambiguous language, the acquisition of the Shares by Acquisition
Trust shall occur after the satisfaction of the conditions stated in section 4 of the
Agreement. Section 4 states the following conditions: (1) the closing contemplated
by the Agreement for the transfer of the Shares and the payment of the Purchase
Price shall take place at the Caldwell Law Firm on a mutually agreeable date and
time; (2) the certificates representing the Shares shall be duly endorsed for transfer
or accompanied by appropriate stock transfer; and (3) if the Estate is not able to
attend a physical closing and if Acquisition Trust has made provisions to provide
the Purchase Price to the Estate, Acquisition Trust may have the Estate’s stock
certificate canceled and have a stock certificate for the Shares issued by the
Company in favor of Acquisition Trust, without any right to protest or relief by the
Estate. Under the Agreement’s plain text, the term “Closing” means “the closing
contemplated by [the] Agreement for the transfer of the Shares and the payment of
the Purchase Price,” and the Closing must take place at the Caldwell Law Firm on
a date and at a time agreed to by the Estate and Acquisition Trust.

      Under the unambiguous language of the Agreement, Acquisition Trust must
pay the Purchase Price to the Estate in cash or time deposits at or before the
Closing or as otherwise mutually agreed upon by the Parties. The Agreement is
subject to purchase price adjustments within sixty days of the Closing, during
which time the Estate has the right to obtain an advanced fairness opinion from an
independent third party. Although a purchase price adjustment may result in
Acquisition Trust having to pay an amount in addition to the Purchase Price within
15 months, a purchase price adjustment does not reduce the Purchase Price or
change Acquisition Trust’s obligation under the Agreement to pay the Purchase


                                         14
Price. Under its plain text, nothing in the Agreement conditions Acquisition Trust’s
payment of the Purchase Price on any of the following: (1) the receipt by the Estate
of a fairness opinion under section 3.b., (2) the liquidation of any Estate assets, (3)
the approval by the Internal Revenue Service of the valuation of the Company, (4)
the cashing in of any CDs, or (5) the receipt of lender financing by Acquisition
Trust.
         2. Finding of Fact 27
         In finding of fact 27, the trial court states as follows:

               Paragraph 4 is clear and unambiguous with regard to the fact that the
         [Purchase Price] need not have been provided prior to the transfer of the
         stock from the Estate to [Acquisition Trust]. To have specific authority to
         have the stock issued “without any right to protest or relief” by the Estate,
         [Acquisition Trust] merely had to make “provisions to provide the [Purchase
         Price]” versus providing or transferring the [Purchase Price]. This is also
         informed by the language of Paragraph 3.b., which concerns a right for the
         Estate to obtain a fairness opinion within 60 days of Closing.
The Gruss Parties assert that this finding is erroneous and based on an incorrect
interpretation of the Agreement and that the last sentence of section 4 does not
apply in today’s case.

         The Gruss Parties have placed in the mandamus record reporter’s records
from a temporary-injunction hearing and other hearings, but the testimony from
these hearings was not offered or admitted into evidence at trial, nor were all of the
exhibits from these hearings offered or admitted into evidence at trial. In this
context, we must limit our review to the evidence from the trial that led to the
Judgments challenged in this mandamus proceeding, and we may not consider the
evidence from the other hearings, except to the extent that evidence also was
admitted at trial. See, e.g., Wilson v. Wilson, 

, 538–39 & n. 3 (Tex.
App.—Houston [1st Dist.] 2004, pet. denied) (holding that testimony from earlier
temporary-injunction hearing, not offered at default judgment hearing, must be
                                              15
offered into evidence to be considered as evidence in support of final affirmative
relief).

       In the last sentence of section 4 of the Agreement, the parties agree that
“Should the [Estate] not be able to attend a physical closing and provided
Acquisition Trust] has made provisions to provide the Purchase Price to the
[Estate], [Acquisition Trust] is specifically authorized, without any right to protest
or relief by the [Estate], to have the [Estate’s] stock certificate(s) canceled and the
common stock acquired issued by the Company” (emphasis added). We presume,
without deciding, that Acquisition Trust made provisions to provide the Purchase
Price to the Estate. Even under this presumption, under the unambiguous language
of the Agreement, the last sentence of section 4 only applies if the Estate is not
able to attend a physical closing. See In re Wilmer Cutler Pickering Hale & Dorr
LLP, No. 05–08–01395–CV, 

, at *4 (Tex. App.—Dallas Dec.
31, 2008, orig. proceeding [mand. denied]) (mem. op.). No trial evidence showed
that the Estate was not or is not able to attend a physical closing. In finding of fact
27 the trial court abused its discretion and contradicted the Agreement’s
unambiguous language by stating that to have specific authority to have the stock
issued “without any right to protest or relief” by the Estate, Acquisition Trust
merely had to make “provisions to provide the [Purchase Price].”6 See 

6
  The trial court said that its conclusion in this regard was also informed by the language of
section 3.b., concerning the Estate’s right to obtain a fairness opinion within 60 days of Closing.
Under the Agreement’s plain text, although a fairness opinion may result in a purchase price
adjustment, under which Acquisition Trust must pay an amount in addition to the Purchase Price
within 15 months, any fairness opinion or purchase price adjustment cannot reduce the Purchase
Price or change Acquisition Trust’s obligation under the Agreement to pay the Purchase Price.
Nothing in section 3.b. provides that Acquisition Trust need not pay the Purchase Price before
receiving the Shares from the Estate. Nothing in the Agreement conditions payment of the
Purchase Price by Acquisition Trust on the receipt of a fairness opinion.

                                                16
      3. Challenges to the Trial Court’s Findings that the Closing began on the
         Date and that Acquisition Trust took Possession and Delivery of a
         Stock Certificate for the Shares
      In fact finding 21, the trial court found that on the Date, Acquisition Trust
“took physical possession and delivery” of a stock certificate showing all the
Shares were owned by Acquisition Trust (“Stock Certificate”). In fact finding 22,
the trial court found that (1) the Stock Certificate “was also delivered by providing
Gary Gallagher with a copy of the certificate.”; and (2) “As . . . [a] member of the
board of trustees of [Acquisition Trust], Mr. Caldwell retained the original [Stock
Certificate], and it remains in his possession.” In fact finding 28, the trial court
found that “Closing commenced on [the Date], when the [Agreement] was
executed and became irrevocable.” In fact finding 31, the trial court again stated
that the Closing commenced on the Date. In the Judgments, the trial court
determined that the Closing had commenced on the Date and had not been
completed. In fact finding 37, the trial court found that “the filing of this suit did
not transfer the [Shares] back to the Estate,” thus indicating that the Estate had
previously transferred the Shares to Acquisition Trust. The Gruss Parties argue that
the trial court abused its discretion in interpreting the Agreement and that the trial
evidence is legally insufficient to support each of these findings.

      Gary testified at trial as follows:
   • When the Agreement was executed, the Company owned 2.4 million dollars
     of certificates of deposit (“CDs”). Gary planned to cash in CDs owned by
     the Company and then use the proceeds as collateral for a loan that would
     fund Acquisition Trust’s payment of the Purchase Price at some point in the
     future. Gary called this planned purchase a “leveraged purchase” and a
     “leveraged buyout.”
   • When the Agreement was executed, the CDs had not been cashed in yet, and
     it proved very difficult to cash in the CDs because Gary did not have
     authority to cash in the CDs even though they were the Company’s CDs.
     Robert and Maurita Gallagher were the signatories on the CDs, and they

                                            17
   were both deceased. According to Gary, only the Estate could cash in these
   CDs. By January or February of 2019 Gary “conclusively knew” that the
   Company’s CDs “had disappeared.”
• Gary indicated that Acquisition Trust was not able to pay the Purchase Price
  on the Date.
• Acquisition Trust still was not in a position to pay the Purchase Price on
  April 2, 2019, or within 45 days of that date.
• At the time of trial (February 2021), Gary stated he was in the process of
  seeking a loan to help finance Acquisition Trust’s payment of the Purchase
  Price.
• There never was an “otherwise mutually agreed upon by the parties” date for
  payment of the Purchase Price under section 3.a. of the Agreement.
• Gary does not remember “whose idea was it to set August the 16th, 2016, as
  the closing date.”
• When asked whether the Date was the mutually agreeable date for the
  Closing, as defined in the Agreement, Gary indicated that the Date was the
  mutually agreeable date for “[t]he transfer of the stock and the completion of
  these document[s].”
• Caldwell, on behalf of the Estate, never complained to Gary about
  Acquisition Trust’s failure to pay the Purchase Price. Caldwell understood
  why the payment had not been made.
   Caldwell testified at trial as follows:

• John Cruz, the Company’s President, and Brenda Knight, the Company’s
  Treasurer, were able to cash in the Company’s CDs, the proceeds of which
  Gary had planned to use as collateral for a loan that would fund Acquisition
  Trust’s payment of the Purchase Price. Caldwell thinks that this occurred in
  the summer of 2018. Cruz used the proceeds of the CDs for some other
  purpose.
• Caldwell communicated with the beneficiaries of the Estate. He made sure
  that the beneficiaries understood that Caldwell was not representing them
  and that he was representing the Estate only.
• After the Estate became the owner of the Shares, Gary, Web, and Caldwell
  were appointed as the members of the Company’s board of directors.
  Caldwell took “an active role” as “a representative of the [E]state on the
  Board.”
                                       18
• Up to the meeting in his office on the Date, Caldwell considered his role to
  be that of “an independent representative of the [Estate].”
• Caldwell never made a demand on Gary to pay the Purchase Price because
  Gary was waiting on the Estate to get the fairness opinion under section 3.b.
  of the Agreement and that was clear from before the “closing.”
• Caldwell noted that section 4 of the Agreement contains the definition of
  “Closing,” a defined term in the Agreement, but that definition differs from
  how Caldwell defines this term.
• Caldwell does not construe the definition of “Closing” in the Agreement as
  contemplating both the transfer of shares and the payment of the Purchase
  Price.
• Caldwell recalls that “both sides of the transaction were pushing to close —
  or to sign everything [on the Date].” “So they agreed to show up at
  [Caldwell’s] office on [the Date], to sign the documents and to close the
  transaction.”
• The Trust Agreement that created Acquisition Trust was signed on the Date
  in Caldwell’s office.
• Caldwell reviewed and suggested revisions to the documents related to the
  creation of Acquisition Trust, and in doing so he was acting as lawyer for the
  Estate. “The only role [Caldwell] had” was as “an attorney for Shawn.”
• Acquisition Trust was created on the Date, and Caldwell was not a trustee of
  Acquisition Trust until the Date.
   The Executor, Shawn Deane Gruss, testified at trial as follows:

• Though section 3.a. of the Agreement allows the parties to agree that
  Acquisition Trust will pay the Purchase Price at a time other than at or
  before the Closing, there was no such agreement.
• Caldwell served as the Estate’s lawyer from February 2016 through October
  2019.
• Caldwell and Gary worked together to create the Agreement and the
  irrevocable stock power that were signed on the Date, and the Executor did
  not have anything to do with those documents.
• All the Executor did was show up at Caldwell’s office on the Date. The
  Executor had not seen a draft of the Agreement prior to reading and signing
  the final draft in Caldwell’s office on the Date.

                                     19
   • Caldwell set the “closing” for the Date. There was no discussion in
     Caldwell’s office about the payment of the Purchase Price, and although the
     Executor thought that the Estate would be paid the Purchase Price on the
     Date, no payment was made.
   • The Executor’s understanding about the mutually agreeable date and time
     for the closing contemplated by the Agreement “would have been August
     16th.”
   • At Caldwell’s office on the Date, the Agreement and an “irrevocable stock
     power” were signed. Caldwell made copies of these documents.
   • Caldwell also “had a certificate for the stock.” Caldwell retained the original
     stock certificate, and gave Gary a color copy of it, so Gary could “have
     access to the [Company] accounts.”
   • The Estate did not receive the Purchase Price on the Date, and the Estate still
     has not received the Purchase Price.
      In its Judgments and Findings of Fact and Conclusions of Law, the trial
court concluded that the Estate transferred possession, ownership, and control of
the Shares to Acquisition Trust on the Date. The trial court relied on its findings
that (1) on the Date, Acquisition Trust took physical possession and delivery of the
Stock Certificate; (2) the Stock Certificate was also delivered by providing Gary
Gallagher with a copy of the certificate; and (3) as a member of the board of
trustees of Acquisition Trust, Caldwell retained the original Stock Certificate, and
it remains in his possession.

      The trial evidence does not contain a copy of the stock certificate or the
irrevocable stock power. There is little trial testimony regarding these documents.
The Executor testified that an irrevocable stock power was signed on the Date, but
she did not address what this stock power provided. No trial evidence addressed
any of the terms of the stock power. The Executor testified that Caldwell “had a
certificate for the stock,” that Caldwell retained the original stock certificate, and
gave Gary a color copy of it, so Gary could “have access to the [Company]
accounts.” Again, there was no evidence as to what this stock certificate provided
                                         20
or as to whether the stock certificate reflected that Acquisition Trust owns the
Shares. There was no evidence that Caldwell took possession of or retained the
original of this stock certificate in his capacity as a member of Acquisition Trust’s
Board of Trustees. No witness testified as to whether the Company canceled the
stock certificate showing that the Estate owned the Shares or whether the
Company’s records reflect that that Acquisition Trust owns the Shares or that the
Company issued a stock certificate in favor of Acquisition Trust. Under the plain
text of the Agreement, the parties contemplated that the closing would include the
transfer of the Shares from the Estate to Acquisition Trust and the payment of the
Purchase Price by Acquisition Trust to the Estate at or before the Closing. No trial
evidence showed that the parties mutually agreed that the Estate would transfer
possession, ownership, or control of the Shares to Acquisition Trust before
Acquisition Trust paid any of the Purchase Price. Acquisition Trust did not pay any
part of the Purchase Price on the Date or at any time before trial. Thus, no trial
evidence shows that Acquisition Trust was entitled to obtain possession,
ownership, or control of the Shares on the Date. We conclude that there is no trial
evidence that (1) the Estate transferred possession, ownership, or control of the
Shares to Acquisition Trust on the Date; (2) on the Date, Acquisition Trust took
physical possession and delivery of the Stock Certificate; (3) the Stock Certificate
was delivered by providing Gary with a copy of the certificate; and (4) as a
member of the board of trustees of Acquisition Trust, Caldwell retained the
original Stock Certificate. See Greenspun v. Greenspun, 

(Tex. Civ. App.—Fort Worth 1948, writ ref’d n.r.e.) (holding there was no
evidence that any stock or certificate evidencing stock was transferred to appellee).
Therefore, the trial court clearly abused its discretion by ruling that the Shares are
in the possession, ownership, and control of Acquisition Trust and in failing to
declare that the Estate owns the Shares. See In re Kuraray America, Inc., 656
                                         

 (Tex. 2022). As to the trial court’s determination that the Closing
commenced on the Date and had not been completed as of the date of the
Judgments, Caldwell and Gary both called the meeting at Caldwell’s office on the
Date a “closing,” and Gary indicated that the Date was the “closing date.” But
using this label to describe the meeting at Caldwell’s office does not constitute
evidence that the meeting falls within the Agreement’s definition of “Closing.”
When asked whether the Date was the mutually agreeable date for the Closing, as
defined in the Agreement, Gary indicated that the Date was the mutually agreeable
date for “[t]he transfer of the stock and the completion of these document[s],”
without stating that the Date was a mutually agreeable date for the payment of the
Purchase Price. Thus, Gary did not agree that the meeting falls within the
Agreement’s definition of “Closing.” Caldwell testified that the Agreement’s
definition of “Closing” is not how he defines this term. Caldwell also indicated that
his definition of “to close” was to sign all the papers, without any requirement that
Acquisition Trust pay the Purchase Price: “both sides of the transaction were
pushing to close -- or to sign everything [on the Date].” Thus, Caldwell’s statement
that both sides “agreed to show up at [Caldwell’s] office on [the Date], to sign the
documents and to close the transaction” does not constitute testimony that the Date
was a mutually agreeable date for the “Closing,” as defined in the Agreement.

      It is not surprising that Gary and Caldwell did not testify that the Date was a
mutually agreeable date for the “Closing,” as defined in the Agreement.
Acquisition Trust was not created until the Date, and not only could Acquisition
Trust not have paid the Purchase Price before the Date, Gary and Caldwell
indicated in their testimony that Acquisition Trust could not have paid the
Purchase Price on the Date.

      Though the Executor indicated that she understood that the Closing would

                                         22
take place on the Date, she also testified that she was not involved in the drafting
of the Agreement and that she showed up at Caldwell’s office because Caldwell
told her to do so. The Executor did not testify that she or Caldwell had agreed with
Gary or Acquisition Trust that the “Closing,” as defined in the Agreement would
take place on the Date.

       Under the Agreement’s plain text, the term “Closing” means “the closing
contemplated by [the] Agreement for the transfer of the Shares and the payment of
the Purchase Price,” and the Closing must take place at the Caldwell Law Firm on
a date and at a time agreed to by the Estate and Acquisition Trust. The closing
contemplated by the Agreement is the transfer of the Shares from the Estate to
Acquisition Trust at closing, and the payment of the Purchase Price by Acquisition
Trust to the Estate at or before the closing.7 The Agreement does not set a specific
date for the Closing or a date by which the Closing must occur. Instead, the
Agreement provides that the Closing shall take place at a “mutually agreeable”
date and time. Thus, the parties provided that they would agree to a date on which
the Estate would transfer the Shares to Acquisition Trust and by which Acquisition
Trust would pay the Purchase Price to the Estate.

       There was no evidence that the parties agreed that Acquisition Trust would
pay the Purchase Price otherwise than “at or before the Closing” and the
Agreement defined “Closing” as the transfer of the Shares and the payment of the
Purchase Price. Thus, any trial testimony that the Date was a mutually agreeable
date to transfer the Shares and sign the documents without payment of the

7
 Though the Agreement allows the Estate and Acquisition Trust to agree that the Purchase Price
will be paid after the Closing, the trial court did not find that the parties so agreed, and there was
no evidence at trial of such an agreement. Nor was there any evidence of a modification or
amendment to the Agreement.


                                                 23
Purchase Price does not constitute testimony that the Date was a mutually
agreeable date for the “Closing,” as defined in the Agreement. The Estate sent a
letter dated April 2, 2019, in which the Estate demanded that Acquisition Trust pay
the Purchase Price to the Estate within 45 days. In this letter, the Estate made no
mention of a Closing under the Agreement and did not seek an agreement as to a
date and time for such a Closing. There was no evidence that the parties ever
agreed to a date and time on which the Estate would transfer the Shares to
Acquisition Trust and by which Acquisition Trust would pay the Purchase Price to
the Estate. There was no evidence at trial that the Estate and Acquisition Trust ever
agreed to a date and time for the Closing under the Agreement.8

       We conclude that there is no trial evidence to support the trial court’s
findings (in findings of fact 28 and 31) that the Closing commenced on the Date.
The trial court clearly abused its discretion in determining that the Closing had
commenced on this Date and had not been completed as of the date of the
Judgments. See In re Kuraray America, Inc., 656 S.W.3d at 144. Though we agree
with the Gruss Parties that the trial court abused its discretion in determining that
the Closing commenced on the Date and had not been completed as of the date of
the Judgments, we disagree with the Gruss Parties’ argument that the Closing
occurred on the Date and that Acquisition Trust breached the Agreement by failing
to pay the Purchase Price on or before the Date. For the reasons stated above, we
also disagree with the Gruss Parties’ contention that the trial evidence is legally
insufficient to support a finding that the Estate and Acquisition Trust did not agree

8
  The Gallagher Parties argue that the Executor prevented performance of the Agreement and
materially breached the Agreement by refusing to set a mutually convenient date and time for
Acquisition Trust’s payment of the Purchase Price. The trial court did not rely on this argument
either in the Judgments or in its Findings of Fact and Conclusions of Law. In addition, the
Gallagher Parties do not argue that the Executor prevented performance of the Agreement and
materially breached the Agreement by refusing to agree to a date and time for the Closing under
the Agreement.
                                              24
that the Closing would be on the Date. See id. Because there was no evidence at
trial that the Estate and Acquisition Trust ever agreed to a date and time for the
Closing under the Agreement9 and no evidence that the parties agreed that
Acquisition Trust did not have to pay the Purchase Price at or before the Closing,
no trial evidence shows that the Closing, as defined in the Agreement, occurred on
the Date. See id.

       4. Finding of Fact 41 and Conclusion of Law 45

       In finding of fact 41, the trial court stated as follows:

             Substantial evidence and testimony was presented by [Acquisition
       Trust] that the delay in making payment under the [Agreement] was
       reasonable under the circumstances and accepted by the parties as reflected
       by their actions in the subsequent performance of the contract. Substantial
       evidence and testimony was also presented that the parties never reached a
       mutually agreeable date and time to conclude the closing.
       In conclusion of law 45, the trial court determined as follows:

            The [Agreement] did not require payment for the stock to be delivered
       contemporaneously with the transfer of the stock at closing. Rather, it
9
  The Gruss Parties assert that the trial court abused its discretion because Acquisition Trust’s
failure to pay the Purchase Price for the Shares discharges or excuses the Estate from any
obligation to perform under the Agreement. Not only is there no trial evidence that the Estate and
Acquisition Trust ever agreed to a date and time for the Closing under the Agreement, there is
also no trial evidence that the Estate notified Acquisition Trust that the Estate was rescinding the
Agreement based on Acquisition Trust’s alleged breach of the Agreement. See Hanks v. GAB
Bus. Servs., Inc., 

 (Tex.1982) (holding that, despite election-of-remedies
doctrine in Bocanegra v. Aetna Life Ins. Co., 

 (Tex. 1980), nonbreaching party
had to decide whether to rescind the contract or seek to enforce it when the material breach
occurred, rather than waiting until after trial and before judgment to decide, and stating that
nonbreaching party waived its right to rescind the contract based on the other party’s material
breach by (1) treating the contract as still in effect following the material breach and (2) by filing
suit to enforce the contract); Gupta v. Eastern Idaho Tumor Inst., Inc., 

, 757–58
(Tex. App.-Houston [14th Dist.] 2004, pet. denied) (holding that, as a matter of law,
nonbreaching party was bound by the contract despite other party’s material breach because
nonbreaching party continued to demand performance under the contract following the material
breach).


                                                 25
      required payment on a mutually agreed upon date and time.
      In its findings and conclusions, the trial court determined that the last
sentence of section 4 applied to today’s case and that because Acquisition Trust
made provisions to provide the Purchase Price to the Estate, Acquisition Trust was
authorized under section 4 of the Agreement to receive the Shares without payment
of the Purchase Price and then to pay the Purchase Price on a mutually agreed upon
date and time. The trial court found that the Estate and Acquisition Trust never
agreed on a date and time for the payment of the Purchase Price by Acquisition
Trust. The trial court also determined that Acquisition Trust’s delay in paying the
Purchase Price was reasonable.

      As discussed in section II.A.2. above, under the unambiguous language of
the Agreement, the last sentence of section 4 only applies if the Estate is not able to
attend a physical closing. See In re Wilmer Cutler Pickering Hale & Dorr LLP,

, at *4. No trial evidence showed that the Estate was not or is
not able to attend a physical closing. Therefore, the trial court abused its discretion
by concluding that the last sentence of section 4 applies and authorizes Acquisition
Trust to receive the Shares without payment of the Purchase Price.

      In addition, the part of the Agreement that mentions a mutually agreeable
date and time (section 4’s first sentence) refers to both the payment of the Purchase
Price and the transfer of the Shares at the Closing: “the closing contemplated by
this Agreement for the transfer of the Shares and the payment of the Purchase Price
shall take place at the Caldwell Law Firm on a mutually agreeable day and time
(the ‘Closing’).” Mirroring the trial court’s incorrect construction of section 4’s
first sentence, in their mandamus response, the Gallagher Parties assert that the
Agreement “states, again in paragraph 4, that ‘payment of the purchase price shall



                                          26
take place at the Caldwell Law Firm on a mutually agreeable day and time.’”10
This selective quotation from section 4 obscures the fact that the subject of the
predicate “shall take place at the Caldwell Law Firm on a mutually agreeable day
and time” is the closing for both the transfer of the Shares and the payment of the
Purchase Price, not just the “payment of the purchase price.”

         Because section 4’s last sentence does not apply to today’s case and because
there is no evidence that the parties “otherwise mutually agreed” as to payment of
the Purchase Price under section 3.a., the Agreement required that Acquisition
Trust pay the Purchase Price at or before the Closing to take place at a mutually
agreeable date and time. Therefore, the trial court’s conclusion of law 45 is based
on an incorrect construction of the Agreement, and the trial court clearly abused its
discretion in making conclusion of law 45. See In re Longoria, 

 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding).

         The Gruss Parties assert that the trial court clearly abused its discretion in
making finding of fact 41. This finding appears to be in support of the trial court’s
conclusions of law 46 and 48, in which the court determined that the parties never
mutually agreed to a date and time for payment of the Purchase Price and that
“[t]here was not any unreasonable delay in payment for the stock certificate
sufficient to invalidate the [Agreement].” The Gruss Parties argue that this
conclusion of law is erroneous and that the evidence is legally insufficient to
support the conclusion that Acquisition Trust’s failure to pay any part of the
Purchase Price from the Date through the trial court’s findings and conclusions on
May 3, 2021, is reasonable. The Gruss Parties also assert that in determining a
reasonable time for performance, the trial court erred in considering facts and
circumstances that occurred after execution of the Agreement on the Date.

10
     emphasis added by the Gallagher Parties

                                               27
       If parties enter into a contract without explicitly mentioning a time for
performance, courts imply that performance must occur within a reasonable time.
See Hall v. Hall, 

 (Tex. 1957). In making this determination, we
frame our inquiry in terms of what is a reasonable time for performance “in light of
the circumstances before [the parties] at the date of the contract,” considering all
the circumstances surrounding the adoption of the agreement, the situation of the
parties, and the subject matter of the contract. Metromarketing Servs., Inc. v. HTT
Headwear, Ltd., 

, 195–96 (Tex. App.—Houston [14th Dist.] 2000,
no pet.) (quoting Hall, 308 S.W.2d at 16–17). If the evidence regarding the facts
material to the question of what is a reasonable time is undisputed, courts may
decide this question as a matter of law. See Pearcy v. Environmental Conservancy
of Austin & Cent. Tex., Inc., 

 (Tex. App.—Austin 1991, writ
denied). Facts arising after the formation of the contract may not be considered in
determining what constitutes a reasonable time for performance. See Hall, 

; Metromarketing Servs., Inc., 

. Thus, facts occurring
after the Date, such as the facts mentioned in findings of fact 32, 33, 34, and 41,
may not be considered in determining a reasonable time for performance.11

       Finding of fact 41 is based on the incorrect premise that the Closing
commenced on the Date. As discussed above, there was no evidence at trial that
the Estate and Acquisition Trust ever agreed to a date and time for the Closing
under the Agreement, and the trial court clearly abused its discretion in


11
   In finding of fact 32, the trial court found that “[t]he IRS did not issue its approval letter until
October 2018.” In finding of fact 33, the trial court found that “[e]fforts to obtain a fairness
opinion continued from closing until the fall of 2018 unsuccessfully.” In finding of fact 34, the
trial court found that “[t]he redemption of the Certificates of Deposit (Estate assets that
comprised the leveraged portion of the sale) became a daunting task because both original
signers were deceased; additionally, these CDs were issued by multiple small obscure banks
throughout Texas each with different requirements to authorize redemption.” In finding of fact
41, the trial court considered the parties’ “actions in the subsequent performance of the contract.”
                                                  28
determining that the Closing commenced on the Date. Because the Estate and
Acquisition Trust entered into the Agreement without explicitly mentioning a time
for them to agree to a date and time for the Closing, we imply a reasonable time for
the parties to do so. See Hall, 308 S.W.2d at 16–17. Thus, the question regarding
reasonable time for performance is not what constitutes a reasonable time for
Acquisition Trust to pay the Purchase Price, the question is what constitutes a
reasonable time for the parties to agree to a date and time for the Closing.12 See id.;
Metromarketing Servs., 15 S.W.3d at 195–96. Between the Date and the date on
which the trial court issued the Judgments, more than four years and seven months
passed. It is not difficult to agree to a date and time for the Closing. Under the
Agreement’s unambiguous language, the Estate only has until sixty days after the
date of the Closing to obtain a fairness opinion under section 3.b. Under the
Agreement’s plain text, if Acquisition Trust must pay the Estate a Residual amount
in addition to the Purchase Price due to a purchase price adjustment under section
3.b., Acquisition Trust must pay the Residual within fifteen months. Presuming for
the sake of argument that time was not of the essence, the trial evidence shows as a
matter of law that in light of the circumstances before the Estate and Acquisition
Trust on the Date, considering all the circumstances surrounding the adoption of
the Agreement, the situation of the parties, and the Agreement’s subject matter,
and not considering facts arising after the Date, a reasonable time for the parties to
agree to a date and time for the Closing had passed by the time the trial court
issued the Judgments.13 See Ganguly Holdings, L.L.C. v. Ker-Seva Ltd., No. 05-21-

12
   Because it found that the Closing commenced on the Date, the trial court did not make a
finding as to what constitutes a reasonable time for the parties to agree to a date and time for the
Closing.
13
  The parties’ failure to agree to a date and time for the Closing within a reasonable time does
not make the Agreement revocable or conflict with the part of the Agreement stating that the
Agreement is irrevocable upon execution.

                                                29
00124-CV, 

, at *5 (Tex. App.—Dallas Jul. 29, 2022, no pet.)
(concluding that as a matter of law a reasonable time for performance under the
contract had passed after two years) (mem. op.); Pearcy, 814 S.W.2d at 246–47.
Thus, the Agreement has expired. See Pearcy, 814 S.W.2d at 246–47; Hamilton v.
Shirley-Self Motor, Co., 

 (Tex. Civ. App.—Fort Worth 1947,
writ ref’d n.r.e.) (concluding that reasonable time for performance ended after two-
and-a-half years and that after that time the obligation to perform under the
contract ceased). The Estate has no obligation to sell, transfer, or convey the
Shares to Acquisition Trust under the Agreement, and Acquisition Trust has no
obligation to purchase the Shares from the Estate or to pay the Purchase Price. See
Pearcy, 814 S.W.2d at 246–47; Hamilton, 

.
B.    Do the Gruss Parties lack an adequate remedy at law?

      The Gruss Parties argue that they have no adequate remedy at law. Courts
determine the adequacy of an appellate remedy by balancing the benefits of
mandamus review against the detriments. In re Team Rocket, L.P., 

 (Tex. 2008) (orig. proceeding). Because this balance depends heavily on
circumstances, courts look to principles for guidance rather than rely on simple
rules that treat cases as categories. In re McAllen Med. Ctr., Inc., 

 (Tex. 2008) (orig. proceeding). In evaluating benefits and detriments, the court
is to consider (1) whether mandamus will preserve important substantive and
procedural rights from impairment or loss, (2) whether mandamus will “allow the
appellate courts to give needed and helpful direction to the law that would
otherwise prove elusive in appeals from final judgments,” and (3) whether
mandamus will spare the litigants and the public “the time and money utterly
wasted enduring eventual reversal of improperly conducted proceedings.” In re
Prudential Ins. Co. of Am., 

 (Tex. 2004) (orig. proceeding).


                                        30
An appellate remedy is not inadequate just because the appeal involves more
expense or delay than obtaining mandamus relief. 

      In the third paragraph of the Judgments, the trial court decreed that
Acquisition Trust has sixty days to pay the Purchase Price to the Estate for the
Shares. In the fourth paragraph of the Judgments, the trial court ordered that upon
timely delivery of the Purchase Price to the Estate the Shares “shall remain in the
possession, ownership and control of [Acquisition Trust].” In the fifth paragraph,
the trial court also adjudged that in the event Acquisition Trust pays the Purchase
Price to the Estate within sixty days, then all other terms of the Agreement shall
remain in place, including but not limited to, the Estate’s right within sixty days
after receipt of the Purchase Price to obtain a fairness opinion under section 3.b. of
the Agreement.

      In the interlocutory appeals, this court concluded that it lacked appellate
jurisdiction over paragraphs 3-5 of the Judgments. See Gruss, —S.W.3d at —,

, at *4–11. The Judgments are interlocutory, and there are
remaining claims to be adjudicated by the trial court. If the Gruss Parties must wait
to appeal from a final judgment in each of the trial court cases, the final judgment
would most likely be issued after the expiration of the sixty-day time period set up
in the Judgments, perhaps well after. If Acquisition Trust were to pay the Purchase
Price during this period, then during the time it takes to reach final judgment and to
finally resolve the appeals of the final judgments, the Estate would be deprived of
its ownership of the Shares, and Acquisition Trust might sell the Shares to a good
faith purchaser for value in a way that cannot be undone after appeal of the final
judgment. This would prevent the Estate from obtaining on appeal from the final
judgment a rendition of judgment declaring that the Estate owns the Shares. Thus,
mandamus relief in this case will preserve the Estate’s substantive rights as owner

                                         31
of the Shares from impairment or loss. See In re Van Waters & Rogers, Inc., 

 (Tex. 2004) (stating that a party has no adequate appellate
remedy by appeal from a final judgment if the appellate courts would not be able to
cure the error on appeal); In re Warrior Energy Servs. Corp., 

, 118
(Tex. App.—Houston [14th Dist.] 2020, orig. proceeding); (concluding that the
benefits of mandamus relief outweighed detriments in part because the challenged
order erroneously deprived a party of the use of its money); In re Fuentes, 

 (Tex. App.—Houston [1st Dist.] 2017, orig. proceeding) (holding
that party claiming to be owner of three properties had no adequate remedy at law
because appeal from final divorce decree could not remedy being dispossessed of
the properties during the appeal); In re Ringo Drilling I, L.P., 

,
708–09 (Tex. App.—Dallas 2012, orig. proceeding) (concluding that relator had no
adequate remedy at law as to the trial court’s interlocutory order that erroneously
ordered relator to deliver to a real party in interest certain drilling rigs that were the
subject of claims in the case); In re Argyll Equities, LLC, 

(Tex. App.—San Antonio 2007, orig. proceeding) (holding that relator had no
adequate remedy by appeal as to a prejudgment attachment order that erroneously
froze the company’s assets and hindered its ability to conduct business); In re
Texas American Exp., Inc., 

, 727–28 (Tex. App.—Dallas 2005,
orig. proceeding) (holding there was no adequate remedy at law from a
prejudgment writ of garnishment because it erroneously deprived the relator of the
possession of its property and no available legal remedy allowed the relator to
reobtain possession of its property).
      In addition, if the Estate were to decide that it is in its best interests to seek a
fairness opinion within sixty days after Acquisition Trust paid the Purchase Price
under the Judgments, obtaining this opinion in a sixty-day period would be a
substantial expense that would be wasted when the Judgments were reversed on
                                           32
appeal from final judgments. The trial court’s error in determining that Acquisition
Trust has been the owner of the Shares since the Date also would likely cause
reversible error in the adjudication of remaining claims in the trial court, for
example (1) the claims the Executor asserts in the First Case against Caldwell,
Gary, Web, and Acquisition Trust, including the claims assigned to the Executor
by the Bentley Parties,14 and (2) the claims asserted by the Company against Gary,
Web, Diversified, and Caldwell in the Third Case.15 Thus, mandamus relief will
spare the litigants and the public the time and money that would be wasted seeking
a fairness opinion and litigating claims that would eventually be reversed on appeal
from the final judgments. See In re Ubican Global, Inc., Nos. 01-21-00356-CV,
01-21-00293-CV, 

, at *9 (Tex. App.—Houston [1st Dist.] Oct.
5, 2021, orig. proceeding) (mem. op.). We conclude that the benefits of mandamus
review outweigh the detriments and that the Gruss Parties have no adequate
remedy at law. See In re Van Waters & Rogers, Inc., 

; In re
Ubican Global, Inc., 

, at *9; In re Warrior Energy Servs. Corp.,
599 S.W.3d at 118; In re Fuentes, 

; In re Ringo Drilling I, L.P.,
369 S.W.3d at 708–09; In re Argyll Equities, LLC, 

; In re Texas
American Exp., Inc., 190 S.W.3d at 727–28.
                                  III. CONCLUSION

         Under the unambiguous language of the Agreement, section 4’s last sentence
only applies if the Estate is not able to attend a physical closing. No trial evidence
shows that the Estate was not or is not able to attend a physical closing. In finding
of fact 27 the trial court abused its discretion and contradicted the Agreement’s
unambiguous language by concluding that to have specific authority to have the

14
     See page 4 above.
15
     See page 6 above.

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stock issued “without any right to protest or relief” by the Estate, Acquisition Trust
merely had to make “provisions to provide the [Purchase Price].”
      There is no trial evidence that (1) the Estate transferred possession,
ownership, and control of the Shares to Acquisition Trust on the Date; (2) on the
Date, Acquisition Trust took physical possession and delivery of the Stock
Certificate; (3) the Stock Certificate was delivered by providing Gary Gallagher
with a copy of the certificate; and (4) as a member of the board of trustees of
Acquisition Trust, Caldwell retained the original Stock Certificate. Therefore, the
trial court clearly abused its discretion by ruling that the Shares are in the
possession, ownership, and control of Acquisition Trust and in failing to declare
that the Estate owns the Shares.

      There is no trial evidence to support the trial court’s findings in fact finding
28 and 31 that the Closing commenced on the Date. The trial court clearly abused
its discretion in determining that the Closing had commenced on this Date and had
not been completed as of the date of the Judgments. Because the Estate and
Acquisition Trust entered into the Agreement without explicitly mentioning a time
for them to agree to a date and time for the Closing, we imply a reasonable time for
the parties to do so. Thus, the question regarding reasonable time for performance
is not what constitutes a reasonable time for Acquisition Trust to pay the Purchase
Price, the question is what constitutes a reasonable time for the parties to agree to a
date and time for the Closing. The trial evidence shows as a matter of law that in
light of the circumstances before the Estate and Acquisition Trust on the Date,
considering all the circumstances surrounding the adoption of the Agreement, the
situation of the parties, and the Agreement’s subject matter, a reasonable time for
the parties to agree to a date and time for the Closing had passed by the time the
trial court issued the Judgments. The Agreement has expired. The Estate has no


                                          34
obligation to sell, transfer, or convey the Shares to Acquisition Trust under the
Agreement, and Acquisition Trust has no obligation to purchase the Shares from
the Estate or to pay the Purchase Price.

      For the reasons stated above, we conclude that the trial court clearly abused
its discretion by issuing paragraphs 3 through 5 of the Judgments and by failing to
declare that the Estate owns the Shares. The benefits of mandamus review
outweigh the detriments, and the Gruss Parties have no adequate remedy at law.
Thus, we conditionally grant the petition for writ of mandamus in part, and we
direct the trial court to (1) vacate paragraphs 3 through 5 in each of the Judgments
and (2) issue interlocutory judgments in each of the three trial court cases declaring
that the Estate owns the Shares. To the extent that the Gruss Parties seek
mandamus relief beyond that granted in this opinion, we deny the mandamus
petition. We are confident the trial court will act in accordance with this opinion.
The writ of mandamus will issue only if the trial court fails to do so.




                                        /s/     Randy Wilson
                                                Justice

Panel consists of Justices Wise, Poissant, and Wilson.




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