Tuesday, September 1, 2009
Elements of breach of contract (Dallas CoA)(2009)
BREACH OF CONTRACT DEFINED - ELEMENTS OF THE CAUSE OF ACTION FOR BREACH OF CONTRACT IN TEXAS
A breach of contract occurs when a party fails to perform an act that it has expressly or impliedly promised to perform. Methodist Hosps. of Dallas v. Corporate Communicators, Inc., 806 S.W.2d 879, 882 (Tex. App.-Dallas 1981, writ denied).
The elements of a claim for breach of contract are: (1) the existence of a valid contract; (2) performance or tentative performance by plaintiff; (3) beach of the contract by defendant; and (4) damage resulting to the plaintiff from the breach. Stewart v. Sanmina Texas, L.P., 156 S.W.3d 198, 214 (Tex. App.-Dallas 2005, no pet.).
Addressing the no-evidence issue of damages first, we conclude there is not a scintilla of probative evidence to establish that any breach caused Esty's alleged damages. See Southwell v. Univ. of Incarnate Word, 974 S.W.2d 351, 354-55 (Tex. App.-San Antonio 1998, pet. denied) (evidence of injury or damage to plaintiff is an essential element of breach of contract).
Source: DALLAS COURT OF APPEALS - 05-08-00038-CV - 298 S.W.3d 280 (2009)
BOUNCED CHECK/LATE PAYMENT BREACHED TIME-IS-OF-THE-ESSENCE PROVISION
The elements of breach of contract are: a valid contract, performance or tendered performance by the plaintiff, breach of the contract by the defendant, and damages sustained by the plaintiff as a result of that breach. Drake v. Wilson N. Jones Med. Ctr., 259 S.W.3d 386, 389 (Tex. App.-Dallas 2008, pet. denied).
In this case it is undisputed the parties had a valid contract and Christian performed as he promised.
. The elements of breach and damages are intertwined: the Agreement provided that if Creech failed to pay the original amount due under the Agreement in a timely manner, then he would owe an additional sum to Christian. Creech argues he did not breach because he eventually paid the initial amount due. But the summary judgment evidences establishes Creech not only paid untimely when the Promissory Note made time of the essence, he repeatedly failed to make any payment at all because his checks were dishonored. Indeed, Creech's own summary judgment evidence establishes that-well past the date when all of his payments were to be completed-Creech was still replacing bad checks for payments due many months earlier. By utterly failing to comply with the parties' contractual requirement of timely payment, Creech defaulted and triggered the obligation to pay the increased amount called for under the Agreement. It is undisputed he has not paid that amount. The summary judgment record establishes Creech breached the contract and Christian has suffered damages as a result. We overrule Creech's first issue. In his second issue, Creech argues Christian waived his contractual right to timely payments by accepting the payments Creech made. Creech did not argue waiver in the trial court; he argued estoppel. Although the doctrines of waiver and estoppel are frequently referenced together, they are different. Ulico Cas. Co. v. Allied Pilots Ass'n, 262 S.W.3d 773, 778 (Tex. 2008).
Creech may not raise a ground for defeating the summary judgment motion in this Court if he did not raise it below. See Clear Creek Basin, 589 S.W.2d at 679. But even if we were to consider Creech's waiver argument here, it would fail. Waiver is an intentional relinquishment of a known right. Straus v. Kirby Court Corp., 909 S.W.2d 105, 109 (Tex. App.-Houston [14th Dist.] 1995, writ denied).
Creech's entire argument is based on Christian's ultimate acceptance of Creech's untimely or replacement payments. But the parties' Agreement contains a non-waiver clause; Christian hired an attorney, and the attorney unequivocally demanded the entire amount due as a result of the default; and there is no evidence in the record that Christian intended to accept a lesser amount than what he had demanded. See id. We will not construe Christian's efforts to collect past-due amounts as a waiver of his right to a full recovery. We overrule Creech's second issue as well.
We affirm the trial court's judgment.
SOURCE: FIFTH COURT OF APPEALS IN DALLAS - 05-08-00952-CV - July 28, 2009