But he breached first ...
PRIOR BREACH BY THE OTHER PARTY TO THE CONTRACT AS AN EXCUSE FOR THE DEFENDANT'S NON-PERFORMANCE
The argument does not always work. Materiality of the breach, assuming there was a breach, is a key issue. Moreover, if the party resorting to the excuse defense did not treat the contract as terminated as a result of the breach by the opponent, the defense will likely fail.
A party breaches a contract when it neglects or refuses to perform a contractual obligation. Mays v. Pierce, 203 S.W.3d 564, 575 (Tex. App.-Houston [14th Dist.] 2006, pet. denied). If the breach is material, the other party is excused from further performance of the contract. Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 196 (Tex. 2004) (per curiam) (citing Hernandez v. Gulf Grp. Lloyds, 875 S.W.2d 691, 692 (Tex. 1994)). Generally, the issue of whether a breach rises to the level of a material breach that will render the contract unenforceable presents a dispute for resolution by the trier of fact. See Cont'l Dredging, Inc. v. De-Kaizered, Inc., 120 S.W.3d 380, 394-395 (Tex. App.-Texarkana 2003, pet. denied). But the materiality of a breach and the resulting unenforceability of the agreement can present questions for the court to resolve as a matter of law. See Mustang Pipeline Co., 134 S.W.3d at 199-200 (concluding that when contract stated time was of the essence and one party failed to perform, other party was excused from performance as a matter of law); see also Fedgess Shopping Cntrs., Ltd. v. MNC SSP, Inc., No 14-07-00211-CV, 2007 WL 4387337, at *3 (Tex. App.-Houston [14th Dist.] Dec. 18, 2007, no pet.) (concluding appellant raised no issue of material fact concerning prior material breach and affirming summary judgment for appellee).
SOURCE: HOUSTON COURT OF APPEALS - 14-12-00088-CV – 3/14/2013
Because Hiles points to no evidence that Arnie's alleged overbilling and failure to timely bill breached a material element of the contract that would excuse Hiles from all liability for failing to pay Arnie's bills, he was not entitled to the prior-material-breach question he tendered. See Mustang Pipeline Co., 134 S.W.3d at 199; see also Williams v. Jackson, No. 01-07-00850-CV, 2008 WL 4837484, at *4 (Tex. App.-Houston [1st Dist.] Nov. 6, 2008, no pet.) (holding that, as a matter of law, attorney's failure to comply with alleged duty to bill appellant monthly as provided in fee agreement did not discharge appellant's duty to pay attorney); cf. Long Trusts v. Griffin, 222 S.W.3d 412, 415-16 (Tex. 2006) (per curiam) (holding that party who elects to treat a contract as continuing is deprived of any excuse for terminating his own performance).