Elsas v. Yakkassippi

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-60179

NANCY ELSAS, Individually, as personal representative of the Estate of
Louis Jacob Elsas II, and as Trustee of the Residuary Trust of the Louis
Jacob Elsas II, Management Trust U/A, September 28, 2011,

Plaintiff - Appellee

v.

YAKKASSIPPI, L.L.C., also known as Yakka or Yac,

Defendant - Appellant

Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:15-CV-28

Before SMITH, HO, and OLDHAM, Circuit Judges.
PER CURIAM:*
Nancy Elsas entered into an agreement with Yakkassippi, L.L.C. as
representative of her deceased husband’s estate, agreeing to sell the estate’s
mineral interests for $500,000. But Yakkassippi subsequently refused to
execute the deed and make the agreed-upon payment. The district court found

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.

United States Court of Appeals
Fifth Circuit
FILED
April 29, 2020

Lyle W. Cayce
Clerk
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No. 19-60179
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Yakkassippi liable for breach and ordered specific performance. On appeal
before us for the second time, we affirm.
1

Yakkassippi is a limited liability company formed to purchase mineral
interests in southern Mississippi’s Tuscaloosa Marine Shale Zone. It made
unsolicited offers to purchase the Elsas family’s mineral interests. Relevant
for this case are the interests held in undivided, one-quarter shares by four
members of the family. The initial transactions with Herbert Alan, Katharine,
and Nancy Elsas closed pursuant to a purchase and sale agreement with an
aggregate payment of $1,500,000 to the Elsases in return for their mineral
rights.
The last transaction involved the estate of deceased family member
Louis Jacob and was set to close following certain probate matters. The
agreement to purchase the mineral rights from Louis Jacob’s estate called for
closing the purchase within 90 days. Before 90 days elapsed, Nancy let
Yakkassippi know she was ready and able to tender the mineral deed. But
Yakkassippi declined to purchase the mineral rights, claiming Nancy should
be barred from enforcing the contract for a variety of reasons.
Nancy filed suit in state court seeking specific performance or, in the
alternative, other remedies. Defendants removed the case to federal court and
asserted various defenses.
Elsas sought and received summary judgment by the district court on
both liability and damages. Our court affirmed on liability but remanded on
damages, holding that it would be a windfall to order full contractual payment
to Elsas without also requiring execution of the deed. Elsas v. Yakkassippi
LLC, 746 F. App’x 344, 346–48 (5th Cir. 2018). We instructed the district court
to consider specific performance on remand. Id. at 348. The district court duly

1
We also deny Elsas’s motion to dismiss the appeal for lack of jurisdiction.
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No. 19-60179
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considered, and then ordered, specific performance. Yakkassippi now appeals
again, raising many of the same arguments previously dismissed by both the
district court and the Fifth Circuit.
Yakkassippi claims Nancy should not be able to recover under the
doctrine of unclean hands. It is not clear this issue is properly preserved, but
even if it is, Yakkassippi fails on appeal to distinguish this claim from the
anticipatory repudiation claim our court already rejected. Id. at 347. As such,
this claim is barred. See Medical Center Pharmacy v. Holder, 634 F.3d 830,
834 (5th Cir. 2011); see also Art Midwest, Inc. v. Clapper, 805 F.3d 611, 614
(5th Cir. 2015) (“It is common to rule that a question that could have been but
was not raised on one appeal cannot be resurrected on a later appeal to the
same court in the same case.”) (quoting 18B Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure § 4478.6 (2d ed. 2013)).
Next, Yakkassippi suggests that the district court should not have
ordered specific performance because Elsas had an adequate remedy at law.
But, as we recognized in the first appeal, “[s]pecific performance is a common
remedy in real property cases.” Elsas, 746 F. App’x at 348; see also Rus-Ann
Dev., Inc. v. ECGC, Inc., 222 S.W.3d 921, 927 (Tex. App.—Tyler 2007, no pet.)
(“It is well understood that specific performance is more readily available as a
remedy for the sale of real estate than for the sale of personal property. This
is because damages are generally believed to be inadequate in connection with
real property.” (citation omitted)). And we review an award of specific
performance for abuse of discretion. Horner v. Bourland, 724 F.2d 1142, 1144–
45 (5th Cir. 1984). Yakkassippi’s conclusional assertion that “damages are
easily ascertained” does not demonstrate that the district court abused its
discretion. In re Volkswagen of Am., Inc., 545 F.3d 304, 310 (5th Cir. 2008) (en
banc).
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Yakkassippi al so claims the district court’s judgment should be set aside
as deficient because it attempts to grant both monetary damages and specific
performance in relief. But this misreads the district court’s judgment ordering
specific performance. The district court explained its “intention was to award
specific performance of the [agreement], which requires Yakka[ssippi] to pay
the Estate $500,000 in exchange for the mineral interests.” To that end, the
district court entered an amended judgment clarifying that the relief it ordered
constituted specific performance.
We affirm.
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