Fiduciary Relationships: Formal vs. Informal Fiduciary Relationship

Breach of fiduciary duty requires the existence of a fiduciary relationship. Without such a relationbship, there cannot be the requisite duty, and hence no breach. As explained by the Dallas Court of Appeals, a fiduciary duty can arise in different contexts: There are two types of fiduciary relationships: formal fiduciary relationships that arise as a matter of law, such as partnerships and principal-agent relationships, and informal fiduciary relationships or “confidential relationships” that may arise from moral, social, domestic, or personal relationships. Crim Truck & Tractor Co. v. Navistar Int'l Transp. Corp., 823 S.W.2d 591, 593-94 (Tex. 1992). But a fiduciary relationship is an extraordinary one and will not be created lightly. In re Estate of Kuykendall, 206 S.W.3d 766, 771 (Tex. App.-Texarkana 2006, no pet.). The mere fact that one party to a relationship subjectively trusts the other does not indicate the existence of a fiduciary relationship. Id.; see also Crim Truck & Tractor Co., 823 S.W.2d at 595 (“[M]ere subjective trust alone is not enough to transform arms-length dealing into a fiduciary relationship.”). A person is justified in believing another to be his fiduciary “only where he or she is accustomed to being guided by the judgment and advice of the other party, and there exists a long association in a business relationship, as well as a personal friendship.” Pabich v. Kellar, 71 S.W.3d 500, 505 (Tex. App.-Fort Worth 2002, pet. denied). The marital relationship is a fiduciary one, Solares v. Solares, 232 S.W.3d 873, 881 (Tex. App.-Dallas 2007, no pet.), but we have already concluded that Smith and Deneve were not spouses. The question is whether the evidence of their longstanding cohabitation, their joint bank account, and their sharing of expenses is sufficient to raise a fact issue as to the existence of an informal fiduciary relationship. SOURCE: Dallas Court of Appeals opinion in No. 05-07-01407-CV

RELA Statute of Frauds

Statute of frauds provision of the Real Estate License Act (RELA) requires commission agreement to be in writing. A person may not maintain an action in this state to recover a commission for the sale or purchase of real estate unless the promise or agreement on which the action is based, or a memorandum, is in writing and signed by the party against whom the action is brought or by a person authorized by that party to sign the document.Tex. Occ. Code Ann. § 1101.806(c). To comply with this section, an agreement or memorandum must: (1) be in writing and must be signed by the person to be charged with the commission; (2) promise that a definite commission will be paid, or must refer to a written commission schedule; (3) state the name of the broker to whom the commission is to be paid; and (4) either itself or by reference to some other existing writing, identify with reasonable certainty the land to be conveyed. Knight v. Hicks, 505 S.W.2d 638, 642 (Tex. Civ. App.-Amarillo 1974, writ ref'd n.r.e.). Strict compliance with RELA is required; the agreement to pay a real estate commission must be in writing or it is not enforceable. Brice v. Eastin, 691 S.W.2d 54, 57 (Tex. App.-San Antonio 1985, no writ). When RELA applies and its requirements are not met, courts have denied recovery when fraud, conspiracy, deceit, quantum meruit, and breach of contract have been pleaded. McKellar v. Marsac, 778 S.W.2d 573, 575 (Tex. App.-Houston [1st Dist.] 1989, no writ). See Trammell Crow Co. No. 60 v. Harkinson, 944 S.W.2d 631, 634 (Tex. 1997) (in broker's claim against lessors for tortious interference with exclusive representation agreement with lessees, claim rejected as “wholly derivative of [broker's] unenforceable oral commission agreement” and “translates only into the loss of the expectancy of receiving a commission at the end of the lease negotiations”). A broker “cannot do indirectly what the law says he cannot do directly.” Harkinson, 944 S.W.2d at 634. Whether a contract falls within the statute of frauds is a question of law. Vermont Info. Processing, Inc. v. Montana Beverage Corp., 227 S.W.3d 846, 853 (Tex. App.-El Paso 2007, no pet.) SOURCE: 05-08-00394-CV (trial court grant of motion for summary judgment based on the statute of frauds provision of the Real Estate License Act (RELA) affirmed)

Quantum Meruit: What is required to prevail with a quantum meruit claim?

QUANTUM MERUIT CLAIM

To recover on a claim for quantum meruit, a plaintiff must show (1) he rendered valuable services, (2) for the defendant, (3) the defendant accepted his services, and (4) he rendered the services under circumstances as would reasonably notify the defendant that he expected to be paid. Johnston v. Kruse, 261 S.W.3d 895, 901 (Tex. App.-Dallas 2008, no pet.).

SOURCE: DALLAS COURT OF APPEALS - 05-07-01407-CV (evidence tends to show that Plaintiff did not expect to be paid for his services and expenditures on materials in cohabitation context)

To prove quantum meruit against [Defendant] Miller, [Plaintiff] Langhorne had to show (1) he rendered valuable services or furnished materials; (2) for Miller; (3) which services and materials Miller accepted, used, and enjoyed; (4) under such circumstances as reasonably notified Miller that Langhorne, in performing such services, was expecting Miller to pay him. See Wohlfahrt v. Holloway, 172 S.W.3d 630, 634 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).

SOURCE: Langhorne v. Miller (Tex.App.- Houston [14th Dist.] Aug. 4, 2009)(Seymore) (conversion of aircraft, proof of conversion damages, market value, owner may testify, quantum meruit claim fails)

How to establish breach of fiduciary duty

To begin with, a fiduciary duty must first exist.

In order to prevail on a breach of fiduciary duty claim, a plaintiff must prove: (1) the existence of a fiduciary relationship between the plaintiff and the defendant, (2) a breach by the defendant of his or her fiduciary duty to the plaintiff, and (3) an injury to the plaintiff or benefit to the defendant as a result of the breach. Lundy v. Masson, 260 S.W.3d 482, 501 (Tex. App.-Houston [14th Dist.] 2008, pet. denied).
 
An attorney can breach his or her fiduciary duty to a client by, among other things, failing to disclose a conflict of interest, failing to deliver the client's funds, placing his or her personal interests over those of the client, misusing client confidences, taking advantage of the client's trust, self‑dealing, and making misrepresentations. See Goffney v. Rabson, 56 S.W.3d 186, 193 (Tex. App.-Houston [14th Dist.] 2001, pet. denied). An attorney only owes a duty of care to his clients and not to third parties, even if they may have been damaged by the attorney's representation of the client. Barcelo v. Elliott, 923 S.W.2d 575, 577-78 (Tex. 1996); Stancu v. Stalcup, 127 S.W.3d 429, 432 (Tex. App.-Dallas 2004, no pet.); see also Swank v. Cunningham, 258 S.W.3d 647, 661-62 (Tex. App.-Eastland 2008, pet. denied) (holding that former corporate officers and shareholders could not maintain legal malpractice action in their individual capacities against law firm that represented corporation).
 
SOURCE: Brown v. Green (Tex.App.- Houston [14th Dist.] Sep. 1, 2009)(Hedges)(legal malpractice, breach of fiduciary duty) (summary judgment for attorney affirmed)

Proving the elements of fraud

What does it take to prevail with a fraud cause of action? [T]o recover against Smith and Langley on its fraud claim, KNC had to prove first that Smith and Langley each made an actual, material misrepresentation. Johnson v. Brown & Pritchard, 73 S.W.3d 193, 210 n. 45 (Tex. 2002). KNC also had to prove that it acted in reliance on the material misrepresentation. See Ernst & Young,51 S.W.3d at 578; Trenholm v. Ratcliff, 646 S.W.2d 927, 929-30 (Tex. 1983). “Material means a reasonable person would attach importance to and would be induced to act on the information in determining his choice of actions in the transaction in question.” Amer. Med. Int'l Inc. v. Giurintano, 821 S.W.2d 331, 338 (Tex. App.-Houston [14th Dist.] 1991, no writ). SOURCE: 05-08-00653-CV

Proof of damages for default judgment purposes: proving up liquidated vs. unliquidated damages

WHAT IS CONSIDERED ESTABLISHED WITHOUT A NEED FOR PROOF IN THE DEFAULT JUDGMENT CONTEXT?

In a no-answer default judgment, the failure to file an answer operates as an admission of the material facts alleged in the petition, except as to unliquidated damages. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992).
 
A claim for damages is liquidated if the amount of damages can accurately be calculated by the court from the factual, as opposed to the conclusory allegations in the petition and written instruments. Argyle Mech., Inc. v. Unigus Steel, Inc., 156 S.W.3d 685, 687 (Tex. App.-Dallas 2005, no pet.); see also Novosad v. Cunningham, 38 S.W.3d 767, 773 (Tex. App.-Houston [14th Dist.] 2001, no pet.) (suit to recover amount due for professional services was liquidated claim proved by written instruments where plaintiff attached original instruments to verified petition and motion for default judgment).
 
When damages are unliquidated, the judge must “hear” evidence on the damages. See Argyle Mech., Inc., 156 S.W.3d at 687; see also Tex. R. Civ. P. 243. In contrast, “if the claim is liquidated and proved by an instrument in writing, the damages shall be assessed by the court, or under its direction, and final judgment shall be rendered therefor . . . .” Tex. R. Civ. P. 241.
 
SOURCE: DALLAS COURT OF APPEALS - 05-07-01449-CV (credit card debt suit)  

What proof to recover on breach-of-contract claim?

What proof is required to recover damages for the opposing party's breach of contract? 

Recovery under a breach of contract claim requires proof of four elements: (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. Orix Capital Mkts., L.L.C. v. Washington Mutual Bank, 260 S.W.3d 620, 623 (Tex. App.-Dallas 2008, no pet.). 

SOURCE: DALLAS COURT OF APPEALS - 05-07-01492-CV (credit card debt suit)

Statute of Frauds and equitable exceptions to statutes of fraud

Traditional Statute of Frauds and Its Exceptions (promissory estoppel and partial performance)
 
The traditional statute of frauds in Texas, currently at Tex. Bus. & Com. Code Ann. § 26.01(a) (Vernon Pamph. 2008), provides that certain types of agreements, such as a promise to answer for the debt, default, or miscarriage of another, a contract for the sale of real estate, or an agreement which is not to be performed within one year of its making, are not enforceable unless the agreement, or a memorandum of it, is in writing and signed by the person to be charged or his authorized representative. See Footnote 5 However, equity will act to avoid the statute of frauds in circumstances where enforcing the statute would itself amount to a fraud. See Nagle v. Nagle, 633 S.W.2d 796, 799-800 (Tex. 1982); Birenbaum v. Option Care, Inc., 971 S.W.2d 497, 503 (Tex. App.-Dallas 1997, pet. denied) (“Before using equity to circumvent the statute of frauds, the Texas Supreme Court has consistently required a showing that fraud would result in not doing so.”). Those circumstances are limited, however, because otherwise the exceptions would render the statute meaningless:

The Statute of Frauds is the Legislature's directive that courts enforce promises covered by the statute only if such promises are in writing. Equity can avoid the strictures of that directive only by “some positive rule which will insure its exercise for . . . the prevention of an actual fraud as distinguished from a mere wrong . . . so surely as to leave the statute itself, through the exactness of the exception, with some definiteness of operation.”Nagle, 633 S.W.2d at 799 (quoting Hooks v. Bridgewater, 111 Tex. 122, 128, 229 S.W. 1114, 1116 (1921)).
 
Promissory estoppel and partial performance have been recognized as equity-based exceptions to the traditional statute of frauds. Promissory estoppel allows enforcement of an otherwise unenforceable oral agreement when (1) the promisor makes a promise that he should have expected would lead the promissee to some definite and substantial injury; (2) such an injury occurred; and (3) the court must enforce the promise to avoid the injury. Nagle, 633 S.W.2d at 800; “Moore” Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936 (Tex. 1972).
 
Promissory estoppel avoids the traditional statute of frauds when the alleged oral promise is to sign an existing document that satisfies the statute of frauds. See Nagle, 633 S.W.2d at 800 (discussing contract for sale of real estate provision of section 26.01); Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429, 438 (Tex. App.-Dallas 2002, pet. denied) (same); see also Birenbaum, 971 S.W.2d at 504 (promissory estoppel avoids statute of frauds only if oral promise “was to execute a document in existence that itself complied with the statute”; discussing statute of frauds formerly applicable to purchase of securities).
  
Under the partial performance equitable exception, an oral agreement that does not satisfy the traditional statute of frauds but that has been partially performed may be enforced if denying enforcement would itself amount to a fraud. Breezevale, 82 S.W.3d at 439; Carmack v. Beltway Dev. Co., 701 S.W.2d 37, 40 (Tex. App.-Dallas 1985, no writ) (discussing statute of frauds for agreements to pay a commission on sale or lease of real estate). The actions asserted to constitute partial performance must be “unequivocally referable” to the alleged oral agreement and corroborate the existence of that agreement; they “must be such as could have been done with no other design than to fulfill the particular agreement sought to be enforced; otherwise, they do not tend to prove the existence of the parol agreement relied upon by the plaintiff.” Breezevale, 82 S.W.3d at 439-40.

  

Nature and Purpose of Temporary Injunction (TI) - Requisite Elements

A temporary injunction is an extraordinary remedy and does not issue as a matter of right. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). Its purpose is to preserve the status quo of the subject matter of the litigation until trial on the merits. Id. To obtain a temporary injunction, the applicant must plead and prove: “(1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim.” Id. “An injury is irreparable if the injured party cannot be adequately compensated in damages or if the damages cannot be measured by any certain pecuniary standard.” Id. Therefore, as a general rule, “a court will not enforce contractual rights by injunction, because a party can rarely establish an irreparable injury and an inadequate legal remedy when damages for breach of contract are available.” Id. at 211. The applicant is not required to show he will prevail at a final trial; “he needs only to plead a cause of action and to show a probable right on final trial to the relief he seeks and probable injury in the interim.” Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex. 1968) (when only relief sought on final trial is injunctive applicant must show a probable right on final hearing to a permanent injunction). In other words, “the only question before the trial court is whether the applicant is entitled to preservation of the status quo pending trial on the merits.” Walling v. Metcalfe, 863 S.W.2d 56, 57-58 (Tex. 1993) (citing Iranian Muslim Org. v. City of San Antonio, 615 S.W.2d 202, 208 (Tex. 1981)). We review the granting or denial of a temporary injunction for an abuse of discretion. Butnaru, 84 S.W.3d at 204; Tom James of Dallas, Inc. v. Cobb, 109 S.W.3d 877, 883 (Tex. App.-Dallas 2003, no pet.). “A trial court abuses its discretion in granting an injunction when it misapplies the law to established facts or when the evidence does not reasonably support the determination of the existence of a probable right of recovery or probable injury.” Bureaucracy Online, Inc. v. Schiller, 145 S.W.3d 826, 829 (Tex. App.-Dallas, 2004, no pet.). We do not substitute our judgment for that of the trial court, but determine only whether the trial court's action was so arbitrary as to exceed the bounds of reasonable discretion. Butnaru, 84 S.W.3d at 204; Tom James, 109 S.W.3d at 883. We draw all legitimate inferences from the evidence in the light most favorable to the trial court's order. Tom James, 109 S.W.3d at 883. Additionally, granting an injunction in the face of an adequate remedy at law is an abuse of discretion. Harris County v. Gordon, 616 S.W.2d 167, 168, 170 (Tex. 1981); Alert Synteks, Inc. v. Jerry Spencer, L.P., 151 S.W.3d 246, 254 (Tex. App.-Tyler 2004, no pet.); see also Rogers v. Daniel Oil & Royalty Co., 130 Tex. 386, 110 S.W.2d 891, 894 (1937) (stating that when “an adequate and complete remedy at law is provided, our courts, though clothed with equitable jurisdiction, will not grant equitable relief”). On interlocutory appeal of an order granting a temporary injunction, we do not reach the merits of the dispute, but determine only whether the record supports the trial court's exercise of discretion. See Tom James, 109 S.W.3d at 884. Thus, we do not decide the ultimate merits of Gaubert's claims or the Bank's defenses; we determine only whether Gaubert has shown a probable right to relief on his claims in light of the statute of frauds defense and a probable, imminent, and irreparable injury justifying the trial court's temporary injunction, such that he is entitled to preservation of the status quo pending trial on the merits.

 SOURCE: 05-08-01080-CV

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

Implied contract vs. express contract

IMPLIED-IN-FACT CONTRACT 

Whether an implied contract exists is determined from the parties' actions and conduct. See Haws & Garrett Gen. Contractors, Inc. v. Gorbett Bros. Welding Co., 480 S.W.2d 607, 609 (Tex. 1972); Harrison v. Williams Dental Group, P.C., 140 S.W.3d 912, 916 (Tex. App.-Dallas 2004, no pet.); Ervin v. Mann Frankfort Stein & Lipp CPAs, L.L.P., 234 S.W.3d 172, 182 (Tex. App.-San Antonio 2007, no pet.). 

An implied contract exists when the facts and circumstances show a mutual intention to contract. See Haws & Garrett Gen. Contractors, 480 S.W.2d at 609; Harrison, 140 S.W.3d at 916; Lection v. Dyll, 65 S.W.3d 696, 704 (Tex. App.-Dallas 2001, pet. denied); Weynand v. Weynand, 990 S.W.2d 843, 846 (Tex. App.-Dallas 1999, pet. denied); see also Ervin, 234 S.W.3d at 183.

Where the existence of the agreement is disputed, whether the parties reached an agreement is a question of fact. See Preston Farm & Ranch Supply, Inc. v. Bio-Zyme Enters., 625 S.W.2d 295, 298 (Tex. 1981); Haws & Garrett Gen. Contractors, 480 S.W.2d at 609; Live Oak Ins. Agency v. Shoemake, 115 S.W.3d 215, 218 (Tex. App.-Corpus Christi 2003, no pet.).
 
However, as a general rule, the existence of an express contract covering the same subject matter precludes finding the existence of an implied contract, whether in fact or in law. See Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990); Woodard v. Sw. States, Inc., 384 S.W.2d 674, 675 (Tex. 1964); Threadgill v. Farmers Ins. Exch., 912 S.W.2d 264, 268 (Tex. App.-Dallas 1995, no writ). “Where the parties expressly state the terms of an agreement, they create an express contract and are bound by it to the exclusion of conflicting implied terms.” Smith v. State, 96 S.W.3d 377, 384 (Tex. App.-Amarillo 2002, pet. ref'd) (citing Haws & Garrett Gen. Contractors, 480 S.W.2d at 609; Woodard, 384 S.W.2d at 675).

SOURCE: Notley v. Sterling Bank, No. 05-07-00891-CV,  2008 WL 4952835(Tex.App.-Dallas Nov. 21, 2008, no pet.).

Release as affirmative defense to claim

A release is a complete bar to a later action based on matters covered in the release. Schomburg v. TRW Vehicle Safety Sys., Inc., 242 S.W.3d 911, 913 (Tex. App.- Dallas 2008, pet. denied) (citing Deer Creek Ltd. v. N. Am. Mortgage Co., 792 S.W.2d 198, 201 (Tex. App.-Dallas 1990, no writ)). Releases are only effective against named parties to the release or parties described with such particularity that their identity is not in doubt. Mem'l Med. Ctr. of E. Texas v. Keszler, 943 S.W.2d 433, 434 (Tex. 1997) (per curiam) (citing Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 420 (Tex. 1984)). Thus, the BII defendants had the summary judgment burden of showing 2055 was either specifically identified in the release or described with sufficient particularity that its identity is not in doubt. Id. See also Schomburg, 242 S.W.3d at 913, 914. We determine the scope of a release in the same way we review other contracts. See Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990). That is, we ascertain and give effect to the parties' intentions as expressed in the document. Frost Nat'l Bank v. L&F Distributors, Ltd., 165 S.W.3d 310, 311-12 (Tex. 2005) (per curiam). We must consider the entire document and attempt to harmonize and give effect to all provisions by analyzing the provisions with reference to the whole agreement. Id. SOURCE: 05-08-01057-CV

Effect of Collateral Estoppel

The doctrine of collateral estoppel prevents a party from relitigating an issue of fact or law that it previously litigated and lost. See Quinney Elec., Inc. v. Kondos Entm't, Inc., 988 S.W.2d 212, 213 (Tex. 1999) (per curiam). Collateral estoppel applies when an issue was fully and fairly litigated in a previous action and was essential to the judgment in that action. Id.Here, the BII defendants had the burden to establish that (1) the facts or law sought to be litigated in the second suit were fully and fairly litigated in the first suit, (2) those issues were essential to the judgment in the first suit, and (3) Suzanne and 2055, as the parties against whom collateral estoppel is asserted, and Robert, as the other party to the first suit, were cast as adversaries. John G. and Marie Stella Kenedy Mem'l Found. v. Dewhurst, 90 S.W.3d 268, 288 (Tex. 2002); Indem. Ins. Co. v. City of Garland, 258 S.W.3d 262, 271 (Tex. App.-Dallas 2008, no pet.). An issue has been litigated for collateral estoppel purposes if it was properly raised, by the pleadings or otherwise, submitted for determination, and determined. Van Dyke v. Boswell, O'Toole, Davis & Pickering, 697 S.W.2d 381, 384 (Tex. 1985); Indemnity Ins. Co., 258 S.W.3d at 271. SOURCE: 05-08-01057-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 

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