We reaffirmed the rule in Corzelius v. Oliver, 148 Tex. 76, 220 S.W.2d 632, 635 (1949) (notwithstanding defendant's refusal to perform her obligations under contract, plaintiff was required to show that he could have performed his contractual obligations to obtain specific performance), and it has been followed by other courts of appeals in reported decisions in addition to the court of appeals in this case. 17090 Parkway, Ltd. v. McDavid, 80 S.W.3d 252, 257-59 (Tex.App.-Dallas 2002, pet. denied); Chessher v. McNabb, 619 S.W.2d 420, 421 (Tex.Civ.App.-Houston [14th Dist.] 1981, no writ); Hendershot v. Amarillo Nat'l Bank, 476 S.W.2d 919, 920-21 (Tex.Civ.App.-Amarillo 1972, no writ). "[T]o be entitled to specific performance, the plaintiff must show that it has substantially performed its part of the contract, and that it is able to continue performing its part of the agreement. The plaintiff's burden of proving readiness, willingness and ability is a continuing one that extends to all times relevant to the contract and thereafter.

However, a party seeking specific performance must plead and prove (1) compliance with the contract including tender of performance unless excused by the opposing party's breach or repudiation and (2) the readiness, willingness, and ability to perform at relevant times. DiGiuseppe v. Lawler, 269 S.W.3d 588, 593-94, 601 (Tex. 2008); see also 17090 Parkway, Ltd. v. McDavid, 80 S.W.3d 252, 258 (Tex. App.-Dallas 2002, pet. denied). It is required that both elements be proved prior to an award of specific performance unless the requirement of tender is excused.

If "time is of the essence," performance must occur within the specified time before a party is entitled to specific performance. 17090 Parkway, Ltd. v. McDavid, 80 S.W.3d 252, 255 (Tex. App.—Dallas 2002, pet. denied). However, a 'time is of the essence' provision may be waived.

A party seeking specific performance must plead and prove (1) compliance with the contract including tender of performance unless excused by the defendant's breach or repudiation and (2) the readiness, willingness, and ability to perform at relevant times. DiGiuseppe v. Lawler, 269 S.W.3d 588, 593-94, 601 (Tex. 2008); see also 17090 Parkway, Ltd. v. McDavid, 80 S.W.3d 252, 258 (Tex. App.-Dallas 2002, pet. denied).

See TEX. R. APP. P. 44.1(a)(1); 17090 Parkway, Ltd. v. McDavid, 80 S.W.3d 252, 259 (Tex. App.—Dallas 2002, pet. denied). Limitations Defense

Generally, where a contract provides that "time is of the essence," a party must tender performance within the specified time to be entitled to specific performance. See 17090 Parkway, Ltd. v. McDavid, 80 S.W.3d 252, 255 (Tex.App.-Dallas 2002, pet. denied). We have already considered and rejected appellant's complaints based on appellees' failure to perform by January 19, 2007.

Upon either showing, a party seeking specific performance must only plead and prove that it is ready, willing, and able to perform its part of the contract according to its terms. Rus-Ann Dev., Inc., 222 S.W.3d at 927; 17090 Parkway, Ltd. v. McDavid, 80 S.W.3d 252, 258 (Tex.App.-Dallas 2002, pet. denied). See also Rus-Ann Dev., Inc. v. ECGC, Inc., 222 S.W.3d 921, 927 (Tex.App.-Tyler 2007, no pet.); 17090 Parkway, Ltd. v. McDavid, 80 S.W.3d 252, 258 (Tex.App.-Dallas 2002, pet. denied); Wilson v. Klein, 715 S.W.2d 814, 822 (Tex.App.-Austin 1986, writ ref'd n.r.e.).

There is legally sufficient evidence on this basis alone to support a finding that the Olbrichs were not required to make an actual tender of performance. See Burford, 199 S.W.2d at 145; see also Glass v. Anderson, 596 S.W.2d 507, 513 (Tex. 1980) (holding that buyer's repudiation of contracts to buy real property from seller excused seller from his obligation to tender performance); 17090 Parkway, Ltd. v. McDavid, 80 S.W.3d 252, 255-57 (Tex.App.-Dallas 2002, pet. denied) (holding that tender of performance was excused because seller repudiated the contract to sell the real estate); Hubler v. Oshman, 700 S.W.2d 694, 698 (Tex.App.-Corpus Christi 1985, no writ) (holding buyer was relieved of his obligation to tender his performance to seller because of seller's repudiation of the contract); Brantley v. Etter, 662 S.W.2d 752, 758 (Tex.App.-San Antonio 1983, writ ref'd n.r.e.) (holding tender of performance was excused in specific-performance case because sellers repudiated contract by declaring their intention not to perform it); Henry, 543 S.W.2d at 394-96 (concluding that because the contract between Mrs. Henry and Mr. M had been "effectively repudiated" by the conveyance of Mrs. Henry's legal title and by the placement of the restriction on the property, Mr. M was excused from formally tendering performance at closing). The evidence is legally sufficient to support a findingthat the Olbrichs were excused from tendering performancebecause such a tender

In the equitable remedy of specific performance, one of the essential elements on which there may be contested fact issues is whether the party who seeks specific performance has pleaded and proved that he is ready, willing, and able to perform the contract. Chessher v. McNabb, 619 S.W.2d 420, 421 (Tex.Civ.App. — Houston [14th Dist.] 1981, no writ). Where a party clearly refuses to perform his part of a contract, the other party need not tender performance before bringing suit. 17090 Parkway, Ltd. v. McDavid, 80 S.W.3d 252, 256 (Tex. App.-Dallas 2002, pet. denied). Even where tender of performance is excused, a party must plead and prove he is ready, willing, and able to perform.

Even if time is of the essence, timeliness requirements may be waived. Kennedy Ship & Repair, L.P. , 210 S.W.3d at 20 (citing 17090 Parkway, Ltd. v. McDavid , 80 S.W.3d 252, 255 (Tex. App. 2002) ). Waiver occurs when a party's actions "induce[ ] the opposite party to believe that exact performance within the time designated in the contract will not be insisted upon."