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Click here for the full text of this decision FACTS:Walter and Warren Foxworth as sellers, and Harold Ray Lewis as buyer, executed a contract for the sale of approximately 450 acres of land. Under the contract, Lewis agreed to pay the Foxworths $1.675 million in cash for the property. Lewis further agreed to deposit $50,000 in earnest money in an interest-bearing escrow account with the title company. The contract specified that, in the event Lewis failed to close the sale, the Foxworths were entitled to the earnest money on deposit with the title company as their sole remedy. Under the special provisions section, the contract stated: “Both Seller and Purchaser agree that there are items of Personal Property which will be removed from the Property and that all fixtures which are attached to the Property will remain with the Property, said fixtures including, but not limited to fences, working pens, gates, chutes, water well fixtures, and tanks.” The Foxworths removed personal items from the property before the sale was due to close. As of the date of the scheduled closing, however, some personal property remained on the land. Lewis did not close the sale on the date required by the contract. When the Foxworths attempted to recover the earnest money from the title company, the title company refused to turn over the funds without a signed release from Lewis, which he refused to give. The Foxworths then brought suit alleging breach of contract and seeking recovery of the $50,000 earnest money as damages pursuant to the terms of the contract. The jury awarded Jack Foxworth, as attorney-in-fact for Walter L. Foxworth and Warren H. Foxworth, damages for breach of the contract. HOLDING:Affirmed. Lewis contends the evidence is legally and factually insufficient to support the jury’s finding that he was not excused from complying with his contractual obligation to purchase the Foxworths’ property. Lewis argues the evidence conclusively shows the Foxworths failed to comply with the special-provisions section of the contract requiring them to remove their personal items from the property, and that their failure excused his performance under the contract. Lewis contends that the contract required the Foxworths to remove all their personal property from the land before the sale closed and their failure to do so was either a material breach or a repudiation of the contract. The court disagrees and holds that Lewis’s argument contradicts the plain language of the contract. The court finds that the evidence presented at trial clearly shows that items of personal property were removed from the property and, therefore, the requirements of the provision were met. The court holds that for the contract to require the Foxworths to remove all personal items from the property before the property was transferred to Lewis, the contract would have to be rewritten to state that “both Seller and Purchaser agree that all items of Personal Property will be removed from the Property by the Seller before closing.” The court rejects Lewis’s argument that it should construe the contract strictly against the Foxworths because they were the drafters of the agreement. The court holds that the doctrine of contra proferentem is applied only when construing an ambiguous contract, which the parties’ contract was not. The court finds that the plain language of the contract provides for the removal of personal items from the property, and the evidence shows unequivocally that this was done. Accordingly, the court concludes that the evidence is both legally and factually sufficient to support the jury’s finding that Lewis had no excuse for his failure to close on the sale. OPINION:Morris, J.; Morris, Lang, and Mazzant, JJ.

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