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Click here for the full text of this decision FACTS:Richard Malatt appeals the trial court’s take-nothing judgment entered in favor of appellees, C&R Refrigeration and Robert Reeves. Appellees are the manufacturers of industrial freezers. Two Ecuadorian corporations, Mundi Hielo SA and Pesqueria Progalca SA (collectively Mundi Hielo) purchased from appellees an Individual Quick Freeze machine, which is designed to rapidly freeze individual pieces of food, such as seafood. The terms of purchase required Mundi Hielo to make a $62,500 deposit on the machine prior to its construction, an additional payment when construction was half completed, and a final payment prior to the appellees’ shipping the machine to Mundi Hielo. Mundi Hielo paid the initial deposit to the appellees, who began to construct the IQF machine. However, Mundi Hielo failed to make any further payments. The appellees ceased production on the machine and refused to return the initial deposit to Mundi Hielo. Subsequently, the appellees and Mundi Hielo entered into a settlement agreement. Mundi Hielo assigned Malatt its interest in the $62,500 deposit being held by appellees. This suit arises from a dispute concerning a provision in the settlement agreement. The settlement agreement states, in pertinent part, as follows: “C&R shall use its best efforts to market and sell, in an expeditious and commercially reasonable manner, the IQF Machine currently located in the C&R facility in Center, Texas, and for which Mundi has paid to C&R a deposit of $62,500. C&R shall refund the deposit to Mundi, or its nominee, net any offsets, immediately upon sale of the IQF Machine to a third party.” After the agreement was reached, the shrimp market collapsed. During the next three years, the appellees were unable to sell the IQF Machine. On Jan. 22, 2003, the appellees sued Malatt for breach of contract and sought to rescind the settlement agreement. Malatt filed a counterclaim alleging, among other things, breach of contract on appellees’ part, and sought attorney’s fees. Following a bench trial, the trial court entered a final judgment in favor of appellees, ordering that C&R be discharged from its obligation to use its best efforts to sell the IQF machine. HOLDING:Affirmed. C&R’s pleadings specifically controvert the assertion that, if in fact the sale of the IQF machine was a condition precedent to C&R’s obligation to return the deposit to Malatt, such condition precedent had been satisfied. Therefore, C&R has satisfied the specific denial requirement set forth in Texas Rule of Civil Procedure 54. The plain language of the agreement does not obligate the appellees to sell the IQF machine, but rather, requires that C&R “shall use its best efforts to market and sell” the machine “in an expeditious and commercially reasonable manner.” Malatt argues that the aforementioned provision relates to the timing of repayment only. While the matter of timing is inherent to any condition precedent, Malatt’s argument presupposes that C&R was, in fact, required by the agreement to sell the machine. The contract contains no such mandate, the court states, and the contract makes no provision concerning what course of action was to be undertaken should C&R fail to sell the IQF machine. Malatt argues that even C&R’s employment of its best efforts to sell the machine does not excuse it from refunding the deposit to him. Even if the law implies that a contractual obligation will be performed in a reasonable time when no exact time for performance is specified in the contract, such an implication does not further serve to burden the parties to a contract with implied obligations to which they did not agree. Unlike the contract in Jones v. Burke, 540 S.W.2d 798 (Tex. Civ. App. – Corpus Christi 1976, no writ), pursuant to which the purchaser had an absolute obligation to pay, the contract in the instant case obligates the appellees only to use their best efforts to sell the IQF machine. Malatt argues that the contract contains no language that would indicate a condition precedent. However, while certain terms such as “if,” “provided that,” “on condition that,” or some other phrase ordinarily connote the parties’ intent that there be a condition precedent, no particular words are necessary for the existence of such a condition. Conditions precedent are acts or events occurring subsequent to the making of a contract that must occur before there is a right to immediate performance. Since the contract required the appellees to refund the deposit to Malatt immediately upon sale of the IQF Machine to a third party, the sale of the IQF machine was the event that was required to occur before Malatt was entitled to a refund of the deposit. The court notes that no language in the contract required appellees to sell the machine. “Thus, the term”upon the sale of the IQF machine’ can be reasonably interpreted as a condition similar to the term”on condition that’ inasmuch as the sale of the IQF machine is an event that is not certain to occur, since it was not an absolute obligation under the terms of the contract.” The court concludes that the contract required C&R to use its best efforts to market and sell the IQF machine in an expeditious and commercially reasonable manner, and, upon the sale of the ICF machine, C&R was required to immediately refund the $62,500 deposit to Mundi or its nominee. The court also concludes that there was no requirement that C&R sell the machine if its best efforts could not permit it to do so. The court holds that the trial court correctly held that 1. Malatt was entitled to the deposit only when the IQF was sold; and 2. that the sale of the IQF machine was not a contractual requirement. The trial court found that the appellees employed various tactics for more than three years to sell the IQF machine and, in so doing, satisfied their obligation to use “best efforts” under the contract. The court does not disturb the trial court’s unchallenged finding. OPINION:Worthen, C.J.; Worthen, C.J., Griffith and and DeVasto, JJ.

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