Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Monday, August 1, 2011

Mere nonperformance ("nonfeasance") of contractual obligation not a tort


“Although a party’s actions may breach duties in tort, contract, or both, Texas jurisprudence has long recognized that ‘mere nonfeasance under a contract creates liability only for breach of contract.’” Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 301 (Tex. App.—Dallas 2009, no pet.) (quoting Crawford v. Ace Sign, Inc., 917 S.W.2d 12, 13 (Tex. 1996)).

Economic Loss rule

Generally, tort damages are not recoverable unless the plaintiff suffered an injury that is independent and separate from the economic losses recoverable under a breach of contract claim. Id. (citing Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 45–47 (Tex. 1998)).

SOURCE: Houston Court of Appeals - 01-10-00412-CV - 7/28/11
(Duties all ran from the official Loan Documents. Because the Plaintiffs did not plead any fraud in the inducement of those documents, they did not allege an independent tort. See Formosa Plastics, 960 S.W.2d at 47. Trial court did not err in sustaining Defendant's special exceptions.)