Hiring counsel that understands that complexities of civil litigation and the necessity of doing things right the first time in order to obtain the best possible results for our clients.
In the vast majority of cases, people enter into contracts expecting to hold up their end of the bargain. Life, and business, have a way of altering performance in the real world. Whether you are a breach of contract Plaintiff or Defendant, you need counsel that can properly present your case before a judge and jury.
To prove a case for Breach of Contract, the Plaintiff is required to prove certain “elements”. In the law, elements are stepping stones to proving the case. If the Plaintiff have taken all of the steps, then the other party is required to present additional evidence or defenses that will rebut the Plaintiffs case.
A Breach of Contract case has the following elements that a Plaintiff must establish to prevail:
- existence of a valid contract;
- plaintiff performed or tendered performance;
- defendant breached the contract (did not perform his or her agreement in the contract); and
- plaintiff was damaged because of the defendant’s breach.
Marquis Aquisitions, Inc., v. Steadfast Ins., 409 S.W.3d 808, 813-814 (Tex. App.–Dallas 2013, no pet.)
What is a Valid and Enforceable Contract in Texas?
To prove an action for breach of contract, the Plaintiff must establish there is an enforceable contract. To prove the contract is enforceable, the Plaintiff must establish that there was (1) an offer; (2) an acceptance by the other party; (3) mutual assent; (4) execution and delivery of the contract with intent that it be mutual and binding; and (5) consideration supporting the contract. Texas Gas Utils. Co. v. Barrett, 460 S.W.2d 409, 412 (Tex. 1970); Searcy v. DDA Inc., 201 S.W.3d 319. 322 (Tex. App.–Dallas 2006, no pet.) Whether a contract is enforceable is a question of law for the court, and not a jury, to decide. Allen v. American Gen. Fin., Inc., 251 S.W.3d 676, 687 (Tex. App.–San Antonio 2007, pet. granted, judgm’t vacated w.r.m.)
Plaintiff Performed or Tendered Performance
To prove an action for breach of contract, the plaintiff must establish it performed, tendered performance of, or was excused from performing its contractual obligations. Krayem v. USRP (PAC), LP., 194 S.W.3d 91, 94 (Tex. App.–Dallas 2006, pet. denied). To establish that the Plaintiff performed, they must show that fully or substantially performed its contractual obligations. Weitzul Constr., Inc. v. Outdoors Environs, 849 S.W.2d 359, 363 (Tex. App.–Dallas 1993, writ denied). To establish that Plaintiff tendered performance, the Plaintiff can establish that it tendered performance of its obligations if they can show they were ready and willing to perform its dependent promise, has the present ability to perform its promise, and notifies the other party of its readiness to perform. Perry v. Little, 419 S.W.2d 198, 200-201 (Tex. 1967). In some cases, the Plaintiff’s tendered performance may have been excused. To establish that their performance under the contract was excused, the Plaintiff is typically required to show that Defendant materially breached the contract. Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 196 (Tex. 2004). Other actions of the Defendant that may excuse performance are repudiation of the contract (Glass v. Anderson, 596 S.W.2d 507, 511 (Tex. 1980)), that performance was prevented by Plaintiff (Petras v. Criswell, 248 S.W.3d 471, 480 (Tex. App.–Dallas 2008, no pet.)), that Plaintiff’s performance was waived by Defendant (Regent Int’l Hotels, Ltd. v. Las Colinas Hotels Corp., 704 S.W.2d 101, 103-104 (Tex. App.–Dallas 1985, no writ), or that some requirement of the contract, known as a condition precedent, to Plaintiff’s requirement to perform under the contract was never met (Calce v. Dorado Expl., Inc., 309 S.W.3d 719, 742 (Tex. App.–Dallas 2010, no pet.).
Plaintiff Must Prove that Defendant Breached the Contract
The Plaintiff is required to establish that the Defendant did, in fact, Breach the Contract. Methodist Hosps. v. Corporate Communicators, Inc., 806 S.W.2d 879, 882 (Tex. App.–Dallas 1991, writ denied). A “breach” means a failure, without legal excuse, to perform a promise that forms all or part of an agreement, the refusal to recognize the existence of the agreement, or the doing of something inconsistent with its existence. B&W Sup. v. Beckman, 305 S.W.3d 10, 16 (Tex. App.–Houston [1st Dist] 2009, pet. denied).
Plaintiff Must Further Prove that Defendant’s Action Cause Plaintiff Some Injury
To prove their case, a Plaintiff must also show that the Defendant’s actions cause them some monetary or financial injury. Velvet Snout, LLC v. Sharp, 441 S.W.3d 448, 451 (Tex. App.–El Paso 2014, no pet.).
Common Defenses to Breach of Contract Cases
There are numerous defenses to breach of contract. Non-lawyers will shrug their shoulders when they hear that, however, in the real world of contracts, there could be many reasons that a contract may not have been formed, breached, or otherwise. For this reason, an attorney representing either side of the case, Plaintiff or Defendant, must be fully aware of the defenses that may be asserted in order to properly advise and represent their client. Some of the most common defenses will be discussed, in part, below.
- Statute of Limitations- Contract actions have a four year statute of limitations to enforce after a breach has occurred. Tex. Civ. Prac. & Rem. Code § 16.070.
- Standing- The defendant can assert that the Plaintiff lacks standing to sue. Stine v. Stewart, 80 S.W.3d 586, 590 (Tex. 2002)
- Illegality- the defendant can assert the defense that the contract is illegal, even if the contract was legal at the time the contract was entered into (usually as a result of some change in the law). Denson v. Dallas Cty. Credit Un., 262 S.W.3d 846, 852 (Tex. App.–Dallas 2008, no pet.).
- Lack of Consideration or Failure of Consideration- The defendant can assert that contract lacked value or “consideration” for the contract. Burges v. Mosley, 304 S.W.3d 623, 628 (Tex. App.–Tyler 2010, no pet.)
- Duress- The Defendant can assert the defense of duress when the defendant has been compelled into a contract against its will or judgment, such as by threat. Cooper v. Cochran, 288 S.W.3d 522, 533 (Tex. App.–Dallas 2009, no pet.)
- Mutual Mistake- A contract made under both parties misconception or ignorance of a material fact may be voidable. Winegar v. Martin, 304 S.W.3d 661, 667 (Tex. App.–Fort Worth 2010, no pet.).
- Failure to Perform Conditions Precedent- If the Plaintiff pleads that all conditions precedent have been met, Defendant must specifically deny any conditions precedent to the contract that the defendant claims have not been met by the Plaintiff. Hill v. Thompson & Knight, 756 S.W.2d 824, 825-826 (Tex. App.–Dallas 1988, no writ).
Other likely defenses, depending on the circumstances may be impossibility of performance, force-majeure or act of god, economic impracticability, accord and satisfaction, Fraud, novation, unconscionability, lack of mutual assent or obligation, waiver, mitigation of damages, offset, immunity, and many others. Each defense must be based on the facts of the case and must be presented with good cause by any person or attorney asserting them, according to the Texas Rules of Civil Procedure. Each defense asserted must be proved in the same manner that Plaintiff must prove their own case, meaning that when the Defendant asserts a defense, they must prove each element of their defenses in order for it to be applied in their case.
Guest and Gray is committed to serving local North Texas businesses and individuals asserting and defending their contractual rights. We have helped hundreds of businesses and individuals contract related matters, including real estate, construction contracts, service contracts, and countless other contract disputes. If you have a contract litigation need, call Guest and Gray Law Firm today and let our experienced contract attorneys review your case and begin asserting your rights today!
Disclaimer: The information contained above is for informational purposes only and provides a general overview of the law in Texas on Breach of Contract claims. It in no way is to be substituted for independent advice and counsel of a licensed attorney and in no way establishes an attorney-client relationship between the reader and the author.