Construction Lawyer In Houston: Breach of Contract and Prior Material Breach As a Defense In Texas

It is sometimes difficult to decide the important questions of who breached a contract first, and who owes whom what.  Sometimes the answer is that both parties owe the other party some sum of money.  A contractor, for example may breach a contract, but that breach may not be material enough to excuse payment.  Instead, the land owner’s remedy may be to pay the contract and hire someone else to fix the job, and then sue the original contractor for the completion costs.  A non-material breach, then, gives rise to a cause of action to sue, but a non-material breach will not support a defense of prior-material breach.
In Bartush-Schnitzius Foods Co. v. Cimco Refrigeration, Inc., 518 S.W.3d 432 [518 S.W.3d 436], for example the Texas Supreme Court says the following:

We first address Bartush’s argument that the trial court properly rendered judgment entirely in its favor because Bartush’s failure to comply (i.e., nonpayment) was excused as a matter of law by Cimco’s prior material breach. “It is a fundamental principle of contract law that when one party to a contract commits a material breach of that contract, the other party is discharged or excused from further performance.” Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 196 (Tex. 2004) (citing Hernandez v. Gulf Grp. Lloyds, 875 S.W.2d 691, 692 (Tex. 1994)). By contrast, when a party commits a nonmaterial breach, the other party “is not excused from future performance but may sue for the damages caused by the breach.” Levine v. Steve Scharn Custom Homes, Inc., 448 S.W.3d 637, 654 (Tex. App.-Houston [1st Dist.] 2014, pet. denied).4 The latter principle is consistent with settled Texas law regarding the elements of a contract claim. The claim requires a finding of breach, not a finding of material breach. See, e.g., Mays v. Pierce, 203 S.W.3d 564, 575 (Tex. App.-Houston [14th Dist.] 2006, pet. denied) (“A breach of contract occurs when a party fails or refuses to do something he has promised to do.”). Accordingly, a material breach by Cimco would have excused Bartush from making further contractual payments, while a nonmaterial breach would have simply given rise to a claim for damages…In other words, a material breach excuses future performance, not past performance.

If you are seeking an attorney to represent you in a construction claim, please call Hector A. Chavana Jr. to set up a consultation.  Make sure to bring all photos as well as a copy of your agreement, since the facts of your case are important.  The attorney will look at your evidence and assess your case honestly.  Call 713-979-2941 today.

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