law-breach-of-contract-defense-prior-breach-by-plaintiff | performance excused
Breach of Contract Applicable Law
The elements of breach of contract are (1) the existence of a valid contract; (2) performance or tendered
performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained by the
plaintiff as a result of the breach. Valero Mktg. & Supply Co. v. Kalama Int’l, L.L.C., 51 S.W.3d 345, 351 (Tex.
App.—Houston [1st Dist.] 2001, pet. denied). Whether a party has breached a contract is a question of law
for the court, not a question of fact for the jury. Meek v. Bishop, Peterson & Sharp, P.C., 919 S.W.2d 805,
808 (Tex. App.—Houston [14th Dist.] 1996, writ denied). “A breach occurs when a party fails or refuses to do
something he has promised to do.” Dorsett v. Cross, 106 S.W.3d 213, 217 (Tex. App.—Houston [1st Dist.]
2003, no pet.); Townewest Homeowners Ass’n, Inc. v. Warner Commc’n Inc., 826 S.W.2d 638, 640 (Tex. App.
—Houston [14th Dist.] 1992, no writ).
When one party to a contract commits a material breach of that contract, the other
party is discharged or excused from any obligation to perform. Hernandez v. Gulf Group
Lloyds, 875 S.W.2d 691, 692 (Tex. 1994). “The determination of whether a breach is a material breach of the
contract must necessarily turn on the facts of each case.” Advance Components, Inc. v. Goodstein, 608 S.W.
2d 737, 739 (Tex. Civ. App.—Dallas 1980, writ ref’d n.r.e.). In determining the materiality of a breach, the
factfinder may properly consider:
(i) the extent to which the nonbreaching party will be deprived of the benefit that it could reasonably anticipate
from full performance; (ii) the extent to which the injured party can be adequately compensated for the part of
that benefit of which he will be deprived; (iii) the extent to which the party failing to perform or to offer to
perform will suffer forfeiture; (iv) the likelihood that the party failing to perform or to offer to perform will cure
his failure, taking account of all the circumstances including any reasonable assurances; (v) the extent to
which the behavior of the party failing to perform or to offer to perform comports with standards of good faith
and fair dealing.
Yeh v. MacOugall (Tex.App.- Houston [1st Dist.] Jan. 17, 2008)(Alcala)
(breach of contract, counterclaim attorneys fees, attorney's fees, attorney's fees to prevailing party but only
as affirmative relief, no award to prevailing defendant for merely defeating plaintiff's contract claim)
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Bland
01-06-00509-CV Peter J. Yeh v. David J. MacDougall, D.O., P.A. d/b/a Neurosurgical Association of Houston
Appeal from 333rd District Court of Harris County (Hon. Joseph Halbach)
Casarez v. Alltec Construction Co., Inc. (Tex.App.- Houston [14th Dist.] Nov. 6, 2007)(Anderson)(construction
law, breach of contract, prior breach by plaintiff, excuse, DTPA)
REVERSED AND RENDERED IN PART AND REMANDED IN PART: Opinion by Justice Anderson
Before Chief Justice Hedges, Justices Anderson and Seymore
14-07-00068-CV Rueben and Nicole Casarez v. Alltec Construction Co., Inc.
Appeal from 55th District Court of Harris County (Hon. Jeff Brown)