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).
