Quasi-contract theories: Money had and received

Money Had and Received and Unjust Enrichment 
as theories of recovery under Texas law 

  

Unjust enrichment and money had and received are examples of quasi-contract theories. See Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000); Merry Homes, Inc. v. Luc Dao, 359 S.W.3d 881, 883 (Tex. App.-Houston [14th Dist.] 2012, no pet.). A quasi-contract, or a "contract implied in law," is "not a contract at all but an obligation imposed by law to do justice even though it is clear that no promise was ever made or intended." Bank of Am. v. Jeff Taylor LLC, 358 S.W.3d 848, 856 (Tex. App.-Tyler 2012, no pet) (quoting Fortune Prod. Co., 52 S.W.3d at 684).

Unjust enrichment occurs when the person sought to be charged has wrongfully secured a benefit or has passively received one that it would be unconscionable to retain. Villareal v. Grant Geophysical, Inc., 136 S.W.3d 265, 270 (Tex. App.-San Antonio 2004, pet. denied). "To prove a claim for money had and received, a plaintiff must show that a defendant holds money which in equity and good conscience belongs to him." MGA Ins. Co. v, Charles R. Chesnutt, P.C., 358 S.W.3d 808, 814 (Tex. App.-Dallas 2012, no pet.); accord Edwards v. Mid-Continent Office Distrib., L.P., 252 S.W.3d 833, 837 (Tex. App.-Dallas 2008, pet. denied).

SOURCE: DALLAS COURT OF APPEALS - 05-12-00534-CV - 6/19/2013 

Implied-in-fact Contract - Texas case law cite

An implied-in-fact contract "arises from the acts and conduct of the parties, it being implied from the facts and circumstances that there was a mutual intention to contract." Haws & Garrett Gen. Contractors, Inc. v. Gorbett Bros. Welding Co., 480 S.W.2d 607, 609 (Tex. 1972); accord Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 850 (Tex. 2009). 
  
A meeting of the minds is an essential element of an implied-in-fact contract. Tex. Ass'n of Counties Cnty. Gov't Risk Mgmt. Pool v. Matagorda Cnty., 52 S.W.3d 128, 133 (Tex. 2000). 

The court must look to the conduct of the parties to determine the terms of the contract on which the minds of the parties met. Parker Drilling Co. v. Romfor Supply Co., 316 S.W.3d 68, 75 (Tex. App.-Houston [14th Dist.] 2010, pet. denied); Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 557 (Tex. App.-Houston [14th Dist.] 2002, no pet.). The determination of a meeting of the minds is based on the objective standard of what the parties said and did, not on their subjective states of mind. Parker Drilling Co., 316 S.W.3d at 75; Lopez, 93 S.W.3d at 557.  

SOURCE: DALLAS COURT OF APPEALS - 05-12-00534-CV - 6/19/2013 

Promissory Estoppel Theory only applicable outside contract obligations

As is true of other equitable doctrines and remedies, promissory estoppel does not apply when the issue is governed by a formal contract. It may provide a remedy with respect of promises not incorporated into a contract and/or totally independent of a contract.   

ELEMENTS OF PROMISSORY ESTOPPEL

The elements of promissory estoppel are (1) a promise, (2) foreseeability of reliance thereon by the promisor, and (3) substantial reliance by the promisee to his detriment. English v. Fischer, 660 S.W.2d 521, 524 (Tex. 1983); Beverick v. Koch Power, Inc., 186 S.W.3d 145, 152 (Tex. App.-Houston [1st Dist.] 2005, pet. denied).
 
"Promissory estoppel does not apply to a promise covered by a valid contract between the parties; it does apply, however, to a promise outside the contract." Barnett v. Coppell N. Tex. Court, Ltd., 123 S.W.3d 804, 825 (Tex. App.-Dallas 2003, pet. denied); see also Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 226 (Tex. 2002) (noting that "the promissory-estoppel doctrine presumes no contract exists"). The promise must be one "which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee." CRSS Inc. v. Runion, 992 S.W.2d 1, 6 (Tex. App.-Houston [1st Dist.] 1995, pet. denied) (quoting "Moore" Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 937 (Tex. 1972) (quoting RESTATEMENT OF CONTRACTS § 90 (1932))). As a corollary, the promise "must be more than mere speculation concerning future events, a statement of hope, or an expression of opinion, expectation, or assumption." Comiskey v. FH Partners, LLC, 373 S.W.3d 620, 635 (Tex. App.-Houston [14th Dist.] 2012, pet. denied).

SOURCE: HOUSTON COURT OF APPEALS - No. 01-11-00800-CV – 2/28/2013

What is "Money Had and Received"? It does not sound like a cause of action, but ...

 
...it functions as one under Texas case law precedents:
  
ASSUMPSIT - MONEY HAD AND RECEIVED [MHnR] AS A THEORY OF RECOVERY / REIMBURSEMENT  / RESTITUTION
 
Assumpsit For Money Had And Received
 
According to legal historians, assumpsit was developed to redress circumstances involving unjust enrichment or an implied promise to pay what in good conscience defendant was bound to pay the plaintiff. Tri-State Chem., Inc. v. Western Organics, Inc., 83 S.W.3d 189, 193-94 (Tex. App.-Amarillo 2002, pet. denied). Over time, assumpsit was divided into various categories. Id. at 194.
 
Money had and received is a category of general assumpsit to restore money where equity and good conscience require refund. Amoco Prod. Co. v. Smith, 946 S.W.2d 162, 164 (Tex. App.-El Paso 1997, no writ). “The question, in an action for money had and received, is to which party does the money, in equity, justice, and law, belong.
 
All plaintiff need show is that defendant holds money which in equity and good conscience belongs to him.” Staats v. Miller, 150 Tex. 581, 584, 243 S.W.2d 686, 687-88 (1951) (quoting 58 C.J.S., Money Received § 4a). A cause of action for money had and received is “less restricted and fettered by technical rules and formalities than any other form of action. It aims at the abstract justice of the case, and looks solely to the inquiry, whether the defendant holds money which . . . belongs to the plaintiff.” Id. (quoting United States v. Jefferson Elec. Mfg. Co., 291 U.S. 386, 402-03 (1934)).
  
AN EQUITABLE REMEDY
  
A cause of action for money had and received is not premised on wrongdoing, but “looks only to the justice of the case and inquires whether the defendant has received money which rightfully belongs to another.” Amoco, 946 S.W.2d at 164. Such an action may be maintained to prevent unjust enrichment when a party obtains money which in equity and good conscience belongs to another. Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 860 (Tex. App.-Fort Worth 2005, no pet.); J.C. Penney Co., Inc. v. Pitts, 139 S.W.3d 455, 457 n.4 (Tex. App.-Corpus Christi 2004, no pet.) (citing Staats, 243 S.W.2d at 687). In short, it is an equitable doctrine applied to prevent unjust enrichment. Everett, 178 S.W.3d at 860; Hunt v. Baldwin, 68 S.W.3d 117, 132 (Tex. App.-Houston [14th Dist.] 2001, no pet.).
 
To prove a claim for money had and received, a plaintiff must show that a defendant holds money which in equity and good conscience belongs to him. Edwards v. Mid- Continent Office Distrib., L.P., 252 S.W.3d 833, 837 (Tex. App.-Dallas 2008, pet. denied). In defending against such a claim, a defendant may present any facts and raise any defenses that would deny a claimant's right under this theory. Best Buy Co. v. Barrera, 248 S.W.3d 160, 162 (Tex. 2007) (per curiam); Hunter v. PriceKubecka, PLLC, 339 S.W.3d 795, 807 (Tex. App.-Dallas 2011, no pet.).
 
A recovery under assumpsit for money had and received does not “depend on the parties' agreement or intent but rather the law's presumption of a promise of compensation if one receiving another's money would thereby be unjustly enriched.”Amoco, 946 S.W.2d at 164.
  
EXPRESS CONTRACT NORMALLY PRECLUDES RECOVERY UNDER ALTERNATIVE EQUITABLE THEORIES
   
Generally, when a valid, express contract covers the subject matter of the parties' dispute, there can be no recovery under a quasi-contract theory. Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000); McAfee, Inc. v. Agilysys, Inc., 316 S.W.3d 820, 828 (Tex. App.-Dallas 2010, no pet.). The quasi-contractual action for money had and received is a cause of action for a debt not evidenced by a written contract between the parties. See Edwards, 252 S.W.3d at 836; see also Amoco, 946 S.W.2d at 164.
  
SOURCE: DALLAS COURT OF APPEALS - 05-10-00410-CV - 1/10/12

Elements of Quantum Meruit Claim

QUANTUM MERUIT CLAIM IN TEXAS 

Quantum meruit is an equitable theory of recovery based on an implied agreement to pay for benefits received and knowingly accepted. Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992); Tricon Tool & Supply, Inc. v. Thumann, 226 S.W.3d 494, 502 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).

A party can recover in quantum meruit when non-payment for the services rendered would result in an unjust enrichment to the party benefited by the work. Speck v. First Evangelical Lutheran Church of Houston, 235 S.W.3d 811, 815 (Tex. App.—Houston [1st Dist.] 2007, no pet.). To recover in quantum meruit, the plaintiff must establish that: (1) valuable services and/or materials were furnished, (2) to the party sought to be charged, (3) which were accepted by the party sought to be charged, and (4) under such circumstances as reasonably notified the recipient that the plaintiff, in performing, expected to be paid by the recipient. Heldenfels Bros., 832 S.W.2d at 41 (citing Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990)). The plaintiff must also demonstrate that its efforts “were undertaken for the person sought to be charged; it is not enough to merely show that [its] efforts benefitted the defendant.” Hester v. Friedkin Cos., 132 S.W.3d 100, 106 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (emphasis in original).

SOURCE: Houston Court of Appeals - 01-10-00610-CV - 8/11/11

When can a Plaintiff recover in quantum meruit? When not?

When is quantum meruit available as a theory of recovery, when not?

EXPRESS CONTRACT VS. QUASI-CONTRACTUAL EQUITABLE THEORIES


Equitable theories are generally not available when the Plaintiff's claim involves contractual obligations, but there are exceptions to the express-contract preclusion of alternative non-contract theories. 

THE NATURE OF QUANTUM MERUIT AS A THEORY OF RECOVERY

Quantum meruit is an equitable and alternative theory of recovery intended to prevent unjust enrichment. See In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 740 (Tex. 2005). A cause of action for quantum meruit arises when a plaintiff establishes that it has provided a valuable service to the defendant, the defendant accepted the service, and the defendant had reasonable notice that the plaintiff expected to receive compensation. See Excess Underwriters at Lloyd’s v. Frank’s Casing Crew & Rental Tools, Inc., 246 S.W.3d 42, 49 (Tex. 2008). 
However, while a party may seek alternative relief under contract and quasi-contract theories, it generally cannot recover under quantum meruit when there is a valid contract covering the services or materials furnished and no exception applies. In re Kellogg Brown & Root, 166 S.W.3d at 740. 

THREE RECOGNIZED EXCEPTIONS TO PRECLUSION OF QM BY EXPRESS CONTRACT

The Texas Supreme Court has recognized only three exceptions to the general rule that an express contract bars recovery under quantum meruit: (1) “when a plaintiff has partially performed an express contract but, because of the defendant’s breach, the plaintiff is prevented from completing the contract”; (2) “when a plaintiff partially performs an express contract that is unilateral in nature”; and (3) in a construction contract, when a breaching plaintiff may recover the reasonable value of services less any damages suffered by the defendant if the defendant accepts and retains the benefits arising from the plaintiff’s partial performance. See Truly v. Austin, 744 S.W.2d 934, 936 (Tex. 1988).

SOURCE: Houston Court of Appeals - 01-10-00042-CV - 8/4/11

Money Had and Received (MHnR) Theory of Recovery for Debt

MONEY HAD AND RECEIVED

Alternative theory for a debt suit when there is no contract or no prove of it

   
To recover on a claim for money had and received, a plaintiff must show that the defendant holds money that in equity and good conscience belongs to him. Staats v. Miller, 243 S.W.2d 686, 687 (Tex. 1951); Edwards v. Mid-Continent Office Distribs., L.P., 252 S.W.3d 833, 837 (Tex. App.-Dallas 2008, pet. denied).

A cause of action for money had and received is not based on wrongdoing, but, instead, "looks only to the justice of the case and inquires whether the defendant has received money which rightfully belongs to another." Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 860 (Tex. App.-Fort Worth 2005, no pet.); Amoco Prod. Co. v. Smith, 946 S.W.2d 162, 164 (Tex. App.-El Paso 1997, no writ). In short, it is an equitable doctrine applied to prevent unjust enrichment. Hunt v. Baldwin, 68 S.W.3d 117, 132 (Tex. App.-Houston [14th Dist.] 2001, no pet.); Phippen v. Deere & Co., 965 S.W.2d 713, 725 (Tex. App.-Texarkana 1998, no pet.).

In defending against such a claim, a defendant may present any facts and raise any defenses that would deny the claimant's right or show that the claimant should not recover. Best Buy Co. v. Barrera, 248 S.W.3d 160, 162 (Tex. 2007).

SOURCE: Dallas Court of Appeals - 05-09-01397-CV- 4/22/11

MONEY-HAD-AND-RECEIVED CASELAW CLIP(S) AND CITES FROM OTHER COURTS OF APPEALS

"An action for money had and received is an equitable doctrine that courts apply to prevent unjust enrichment." London v. London, 192 S.W.3d 6, 13 (Tex. App.-Houston [14th Dist.] 2005, pet. denied) (citing Miller-Rogaska, Inc. v. Bank One, 931 S.W.2d 655, 662 (Tex. App.-Dallas 1996, no writ). "The cause of action is not premised on wrongdoing, but looks to the justice of the case and inquires whether the party has received money that rightfully belongs to another." Id. (citing Amoco Prod. Co. v. Smith, 946 S.W.2d 162, 164 (Tex. App.-El Paso 1997, no writ). The question in an action for money had and received is to which party does the money, in equity and law, belong. Id. (citing Staats v. Miller, 150 Tex. 581, 243 S.W.2d 686, 687 (1951); Tri-State Chems., Inc. v. W. Organics, Inc., 83 S.W.3d 189, 194-95 (Tex. App.-Amarillo 2002, pet. denied)).

ALTERNATIVE CAUSES OF ACTION ON DEBT: breach of contract, credit card agreement or promissory note; open account, account stated, sworn account under TRCP 185, common law debt claim, suit on account

DISTINGUISH FROM: civil cause of action for theft, misappropriation, and conversion 

Quantum Meruit & Clean Hands Doctrine

QUANTUM MERUIT AS THEORY OF RECOVERY DEFINED Quantum meruit is an equitable remedy that "'is based upon the promise implied by law to pay for beneficial services rendered and knowingly accepted.'" Vortt Exploration, Inc. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990) (quoting Truly v. Austin, 744 S.W.2d 934, 936 (Tex. 1988)). Founded on unjust enrichment, quantum meruit "will be had when non-payment for the services rendered would 'result in an unjust enrichment to the party benefitted by the work.'" Id. (quoting City of Ingleside v. Stewart, 554 S.W.2d 939, 943 (Tex. Civ. App.—Corpus Christi 1977, writ ref'd n.r.e.)). CLEAN HANDS REQUIRED FOR RELIEF IN EQUITY A party seeking an equitable remedy, such as quantum meruit, must come to court with "clean hands." In re Gamble, 71 S.W.3d 313, 325 (Tex. 2002) (Baker, J., concurring); Truly, 744 S.W.2d at 938; Omohundro v. Matthews, 161 Tex. 367, 381, 341 S.W.2d 401, 410 (1960). This clean hands doctrine requires that one who seeks equity, does equity; equitable relief is not warranted when the plaintiff has engaged in unconscionable, unjust, or inequitable conduct with regard to the issue in dispute. In re Francis, 186 S.W.3d 534, 551 (Tex. 2006); Thomas v. McNair, 882 S.W.2d 870, 880 (Tex. App.—Corpus Christi 1994, no writ). WHEN IS (UN) CLEAN HANDS DOCTRINE APPLIED? WHEN NOT? The clean hands doctrine is not, however, absolute. Omohundro, 341 S.W.2d at 410. It should not be applied unless the party asserting the doctrine has been harmed and the wrong complained of cannot be corrected without the application of the doctrine. City of Fredericksburg v. Bopp, 126 S.W.3d 218, 221 (Tex. App.—San Antonio 2003, no pet.); Thomas, 882 S.W.2d at 880; see also Omohundro, 341 S.W.3d at 410 (setting out that the party complaining that his opponent is in court with "unclean hands . . . must show that he himself has been injured by such conduct" and "the wrong must have been done to the defendant himself and not to some third party"); Afri Carib Enters., Inc. v. Mabon Ltd., 287 S.W.3d 217, 222 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (explaining that the trial court cannot apply the clean hands doctrine unless "the misconduct at issue is connected to the subject of the litigation and the party asserting the defense has been seriously harmed by the misconduct"). SOURCE: Corpus Christi Court of Appeals - 13-09-00355-CV - 6/9/11 UNCLEAN HANDS CASE LAW CITES FROM OTHER COURTS, INCLUDING TEXAS SUPREME COURT Truly v. Austin, 744 S.W.2d 934, 938 (Tex. 1988) ("It is well-settled that a party seeking an equitable remedy must do equity and come to court with clean hands."). A party seeking to invoke this equitable doctrine must show that he has been seriously harmed and the wrong complained of cannot be corrected without applying the doctrine. City of Fredericksburg v. Bopp, 126 S.W.3d 218, 221 (Tex. App.-San Antonio 2003, no pet.). A party seeking an equitable remedy must do equity and come to court with clean hands. Truly v. Austin, 744 S.W.2d 934, 938 (Tex.1988); Crown Constr. Co. v. Huddleston, 961 S.W.2d 552, 559 221*221 (Tex.App.-San Antonio 1997, no pet.). The doctrine of unclean hands applies to a litigant whose own conduct in connection with the same matter or transaction has been unconscientious, unjust, marked by a want of good faith or violates the principles of equity and righteous dealing. Crown Constr. Co., 961 S.W.2d at 559; Thomas v. McNair, 882 S.W.2d 870, 880 (Tex.App.-Corpus Christi 1994, no writ). A party seeking to invoke this equitable doctrine must show that he has been seriously harmed and the wrong complained of cannot be corrected without applying the doctrine. Thomas, 882 S.W.2d at 880. A party seeking to invoke this equitable doctrine must show that he has been seriously harmed and the wrong complained of cannot be corrected without applying the doctrine. City of Fredericksburg v. Bopp, 126 S.W.3d 218, 221 (Tex. App.-San Antonio 2003, no pet.). RELATED LEGAL TERMS: equitable claims and remedies, clean and unclean hands doctrine, equitable estoppel

What is specific performance? When can it be granted as a remedy in a contract dispute?

   
WHAT KIND OF REMEDY IS SPECIFIC PERFORMANCE?

Specific performance is an equitable remedy that may be awarded upon a showing of breach of contract. Blue Moon Venture, L.L.C. v. Horvitz, No. 14-09-00459-CV, 2010 WL 4013533, at *1 (Tex. App.-Houston [14th Dist.] Oct. 14, 2010, no pet.) (mem. op.) (citing Stafford v. S. Vanity Magazine, Inc., 231 S.W.3d 530, 535 (Tex. App.-Dallas 2007, pet. denied)).

ELEMENTS OF CLAIM FOR SPECIFIC PERFORMANCE AS REMEDY
 
A party seeking specific performance must plead and prove (1) compliance with the contract including tender of performance unless excused by the defendant's breach or repudiation and (2) it was ready, willing, and able to perform at relevant times. Id. (citing DiGiuseppe v. Lawler, 269 S.W.3d 588, 593-94, 601 (Tex. 2008)). Whether to award specific performance is a matter committed to the trial court's discretion. Chapman v. Olbrich, 217 S.W.3d 482, 491 (Tex. App.-Houston [14th Dist.] 2006, no pet.) (citing Bell v. Rudd, 144 Tex. 491, 191 S.W.2d 841, 843 (1946); Roundville Partners, L.L.C. v. Jones, 118 S.W.3d 73, 79 (Tex. App.-Austin 2003, pet. denied)). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or, stated differently, without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Further, a clear failure by the trial court to analyze or apply the law correctly constitutes an abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). 

SOURCE: Houston Court of Appeals - 14-08-00329-CV - 5/26/11

CASELAW CLIPS ON SPECIFIC PERFORMANCE AS EQUITABLE REMEDY IN BREACH OF CONTRACT CASES FROM OTHER COURTS OF APPEALS
 
Specific performance is an equitable remedy that may be awarded upon a showing of breach of contract. Kress v. Soules, 152 Tex. 595, 597, 261 S.W.2d 703, 704 (1953); Living Christ Church, Inc. v. Jones, 734 S.W.2d 417, 419 (Tex.App.-Dallas 1987, writ denied).

Not a cause of action in its own right

Specific performance is not a separate cause of action, but rather it is an equitable remedy used as a substitute for monetary damages when such damages would not be adequate. See Scott v. Sebree, 986 S.W.2d 364, 368 (Tex. App.-Austin 1999, pet. denied).
 
Grant of remedy discretionary 
 
Specific performance is an equitable remedy committed to the trial court's discretion. Bell v. Rudd, 144 Tex. 491, 191 S.W.2d 841, 843 (1946); Roundville Partners, L.L.C. v. Jones, 118 S.W.3d 73, 79 (Tex. App.-Austin 2003, pet. denied); Scott, 986 S.W.2d at 368 (Tex.App.-Austin 1999, pet. denied). A party seeking specific performance must demonstrate that they have performed, or tendered performance, of their obligations under the contract. Am. Apparel Prods., Inc. v. Brabs, Inc., 880 S.W.2d 267, 269 (Tex.App.-Houston [14th Dist.] 1994, no writ).
 
Not if there is an adequate remedy, such as monetary damages
 
A contract will not be specifically enforced if there is an adequate remedy at law. Id. However, specific performance may be awarded when the personal property has a "special, peculiar, or unique value or character." Madariaga v. Morris, 639 S.W.2d 709, 711 (Tex.App.-Tyler 1982, writ ref'd n.r.e.). Further, when a closely-held corporation's stock has no ascertainable value, the party may seek specific performance to enforce a stock purchase agreement. Miga v. Jensen, 96 S.W.3d 207, 217 (Tex.2002) (citing Bendalin v. Delgado, 406 S.W.2d 897, 900 (Tex. 1966) (plaintiff could seek specific performance to enforce stock purchase agreement 536*536 where corporation was closely held and stock had no market value)). The doctrine of unclean hands operates as a bar to the equitable relief of specific performance. Lazy M Ranch, Ltd. v. TXI Operations LP, 978 S.W.2d 678, 683 (Tex.App.-Austin 1998, pet. denied).
 
SOURCE: Dallas Court of Appeals - 05-06-00545-CV - 8/14/07 - 231 S.W.3d 530 (2007)
 
Specific performance is an equitable remedy that may be awarded upon a showing of breach of contract. Stafford v. S. Vanity Magazine, Inc., 231 S.W.3d 530, 535 (Tex.App.-Dallas 2007, pet. denied) (citing Kress v. Soules, 152 Tex. 595, 261 S.W.2d 703, 704 (1953)). The essential elements of a breach of contract claim 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, 51 S.W.3d 345, 351 (Tex.App.-Houston [1st Dist.] 2001, no pet.). A party seeking specific performance must show that he is ready, willing, and able to perform the contract. Stafford, 231 S.W.3d at 535 (citing Am. Apparel Prods., Inc. v. Brabs, Inc., 880 S.W.2d 267, 269 (Tex.App.-Houston [14th Dist.] 1994, no writ)); Chessher v. McNabb, 619 S.W.2d 420, 421 (Tex.Civ. App.-Houston [14th Dist.] 1981, no writ). However, when the other party clearly refuses to perform his part of a contract, the party who seeks specific performance need not tender performance before bringing suit. 17090 Parkway, Ltd. v. McDavid, 80 S.W.3d 252, 256 (Tex.App.-Dallas 2002, pet. denied). Even when tender of performance is excused, a party must plead and prove he is ready, willing, and able to perform. Id.; Chessher, 619 S.W.2d at 421; Hendershot v. Amarillo Nat'l Bank, 476 S.W.2d 919, 920 (Tex.Civ. App.-Amarillo 1972, no writ). When a party seeks to prove it is ready, willing, and able to perform under the terms of a contract, but is unable to prove it has a firm commitment for financing, that party is not entitled to specific performance of the contract. Hendershot, 476 S.W.2d at 921.

SOURCE: Houston Court of Appeals - 01-07-00080-CV - 9/4/8 - 274 S.W.3d 140 (2008)

A contract is subject to specific performance if it contains the essential terms of a contract, expressed with such certainty and clarity that it may be understood without recourse to parol evidence. Johnson v. Snell, 504 S.W.2d 397, 398 (Tex.1973); Rus-Ann Dev., Inc. v. ECGC, Inc., 222 S.W.3d 921, 927-28 (Tex.App.-Tyler 2007, no pet.) (holding that lack of closing date in option contract did not preclude enforcement by specific performance). Specific performance is an equitable remedy that may be awarded at the trial court's discretion upon a showing of breach of contract. Kress v. Soules, 152 Tex. 595, 261 S.W.2d 703, 704 (1953); Bell v. Rudd, 144 Tex. 491, 191 S.W.2d 841, 843 (1946); Stafford v. S. Vanity Magazine, Inc., 231 S.W.3d 530, 535 (Tex.App.-Dallas 2007, pet. denied). Specific performance is not a separate cause of action, but rather it is an equitable remedy used as a substitute for monetary damages when such damages would not be adequate. Stafford, 231 S.W.3d at 535; Scott v. Sebree, 986 S.W.2d 364, 368 (Tex.App.-Austin 1999, pet. denied).

SOURCE: Fort Worth Court of Appeals - 02-07-443-CV - 9/11/08 - 266 S.W.3d 559 (2008)

What is a quasi-contract, implied-in-fact contract?

IMPLIED CONTRACT VS. EXPRESS CONTRACT

“A contract implied in law, or a quasi-contract, is distinguishable from a true contract because a quasi-contract is a legal fiction, an obligation imposed by law regardless of any actual agreement between the parties.” Fraud-Tech, Inc. v. Choicepoint, Inc., 102 S.W.3d 366, 386 (Tex. App.—Fort Worth 2003, pet. ref’d); see Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000).

SOURCE: Underwood Graves v. Logan (Tex.App.- Houston [1st Dist.] Jan. 28 2010)(no express contract or implied duty for creditor to promptly provide pay-off statement for real estate note found; breach of contract claim brought by maker after sale of real estate fell through accordingly fails)

Requisites of promissory estoppel

Promissory estoppel The requisites of promissory estoppel include (1) a promise, (2) foreseeability of reliance on the promise by the promisor, and (3) substantial reliance by the promisee on that promise to his detriment. English v. Fisher, 660 S.W.2d 521, 524 (Tex. 1983); see also Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 706 n.25 (Tex. 2003). “Under the theory of promissory estoppel, a party that has failed to prove a legally sufficient contract, but has acted in reliance upon a promise to his detriment, may be compensated for his foreseeable, definite, and substantial reliance.” Lamajak v. Frazin, 230 S.W.3d 786, 794 (Tex. App.-Dallas 2007, no pet.) (citing Wheeler v. White, 398 S.W.2d 93, 97 (Tex. 1965)). However, the doctrine of promissory estoppel “presumes no contract exists.” Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 226 (Tex. 2002); see also Cessna Aircraft Co. v. Aircraft Network, L.L.C., 213 S.W.3d 455, 468 (Tex. App.-Dallas 2006, pet. denied) (op. on reh'g); Fertic v. Spencer, 247 S.W.3d 242, 250 (Tex. App.-El Paso 2007, pet. denied) (the existence of an express contract between the parties “bars recovery...under the theory of promissory estoppel as a matter of law.”); Doctors Hosp. 1997, L.P. v. Sambuca Houston, L.P., 154 S.W.3d 634, 636 (Tex. App.-Houston [14th Dist.] 2004, pet. abated) (“promissory estoppel becomes available to a claimant only in the absence of a valid and enforceable contract”). SOURCE: 05-07-00891-CV

When is promissory estoppel a viable theory?

  
PROMISSORY ESTOPPEL AS BASIS FOR RELIEF
  
Promissory estoppel may be utilized to enforce a promise when a plaintiff justifiably and reasonably relies on the promise to his detriment, it was foreseeable that the plaintiff would rely on the promise, and injustice can only be avoided by enforcement of the promise. See Boy Scouts v. Responsive Terminal Sys., 790 S.W.2d 738, 742 (Tex. App.-Dallas 1990, writ denied).
 
A promise must be sufficiently definite to support promissory estoppel. Gillium v. Republic Health Corp., 778 S.W.2d 558, 570 (Tex. App.-Dallas 1989, no writ). A promise must also be more than speculation of future events, a statement of hope, an expression of opinion, an expectation, or an assumption. City of Beaumont v. Excavators & Constructors, Inc., 870 S.W.2d 123, 138 (Tex. App.-Beaumont 1993, writ denied). Lost profits are not recoverable under promissory estoppel; a plaintiff may only recover reliance damages. Fretz Constr. Co. v. Southern Nat'l Bank, 626 S.W.2d 478, 483 (Tex. 1981).

SOURCE: DALLAS COURT OF APPEALS - 05-08-00038-CV  

PROMISSORY ESTOPPEL CLAIM IN CONTEXT OF MORTGAGE RENEGOTIATION/MODIFICATION & FORECLOSURE