Breach of Contract

In Texas, a valid, enforceable contract exists if the following elements exist:

 
1. An offer by one party;

2. An acceptance in strict compliance with the terms of the offer by the other party;

3. A meeting of the minds;

4. Consent by each party to the terms; and 

5. Execution and delivery of the contract with the intent that it be mutual and binding.

 
Also necessary is “consideration,” or something of value exchanged by the parties to “seal the deal.” 

 
Contracts are an essential part of doing business and define the terms of an agreement between parties. They may be in writing or verbal, though Texas law restricts the kinds of verbal contracts which are enforceable. 

 
A breach of a contract occurs when one party complies and performs pursuant to the terms of the agreement, but the other party does not, resulting in the complying party suffering damages. A breach can be material, meaning that as a result of the breaching party’s failure to perform an aspect of the contract, the other party received something substantially different from what the contract specified. This could also be called a “fundamental” breach because it goes to the heart of the contract.   A minor or non-material breach occurs if, even though the breaching party failed to perform an aspect of the contract, the non-breaching party still receives the item or service specified in the contract under other circumstances. A third type of breach of contract is an anticipatory breach, which is where one party acts or says something that indicates an intention that the party is going to stop performing its obligations under the contract at some point in the future. 

If you have been involved in a dispute involving a breach of contract you need a contract dispute lawyer with the knowledge and resources to help protect your rights. Call Our Firm today for a free evaluation of your potential claim and available remedies.

Texas consumers have been provided significant protection since the Deceptive Trade Practices Act was passed in 1973. The primary purpose of the DTPA is to protect consumers against false, misleading, and deceptive business and insurance practices, unconscionable actions, and breaches of warranty. It does so by prohibiting certain acts and practices that tend to deceive and mislead consumers. The DTPA provides for private remedies for damages caused by certain specific acts and practices listed in the DTPA.  Most consumer transactions are covered by the DTPA which provides that "false, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful." 

Any consumer is entitled to the protections provided in the DTPA. A consumer is  an individual, partnership, or corporation (with assets under $25 million) who seeks or acquires by purchase or lease any goods or services.  

The DTPA contains a "laundry list" of specific practices that are prohibited which is found in section 17.46(b) of the Texas Business and Commerce Code. It specifically contains 27 acts that violate the DTPA and for which consumers may sue, if the consumers relied on the act to their detriment. These acts include: 

• Has features, benefits or remedies that don’t exist
• Has qualities to a standard or grade it does not achieve
• Has a guarantee or warranty that isn’t enforced
• Passing off goods or services as those of another
• False representation
• False disparagement of goods or services of another business
• False advertising (in certain circumstances)
• False misrepresentation
• False warranties
• Failure to disclose certain information in sales of goods and services
• False representation of business entity status
• Price gauging after a disaster 
•  

When consumers suffer actual damages, they may sue under the DTPA for any of the following:

• violations contained in the "laundry list", so long as the consumer relied on the act to his or her detriment;
• breach of an expressed or implied warranty;
• unconscionable action; or
• certain violations of the Texas Insurance Code 

A successful plaintiff under the DTPA may be entitled to recover economic damages (i.e., compensatory damages for pecuniary loss, including costs of repair and replacement) as well as court costs and necessary attorneys’ fees, and other appropriate relief. If a defendant in violation of the DTPA is found to have acted knowingly, it may be liable to the consumer for additional damages, including mental anguish damages, and up to three times the amount of economic damages. 

If you believe you may have a claim which falls within the DTPA, contact Our Firm for a free case evaluation and to discuss your potential remedies.  

Texas consumers are provided certain guarantees, or warranties, by manufacturers and sellers when purchasing a product. These guarantees may be express (in writing) or implied. When a product does not live up to these guarantees, the consumer may have a claim for breach of warranty.

There are two types of warranties provided to consumers, express and implied. 

An express warranty is anything that a seller represents to a buyer about the product, which essentially become part of the sales contract. If a seller breaches an express warranty, the buyer can bring a cause of action against the seller for breach of contract.

The second (and more common) type of warranty is an implied warranty, which are essentially implied promises from the seller to the buyer that the product, if used as it is supposed to be used, will not harm the purchaser. There are two recognized implied warranties:

1. The warranty of fitness for a particular purpose and,
2. The warranty of merchantability.

The warranty of fitness for a particular purpose basically says that, where a seller knows that the buyer is buying goods for a particular purpose, and the buyer is relying on the seller’s judgment in supplying appropriate goods for that particular purpose, there is an implied warranty that the goods the seller sells to the buyer are fit for that purpose.

The warranty of merchantability states that if goods are supplied by a seller who deals in goods of that kind, a warranty is implied that the goods are of an average quality. 

If you have purchased merchandise which you believe is not of the quality or standard which the manufacturer or seller represented and as a result you have incurred damages, you may have a valid breach of warranty claim. Call today for a free case evaluation and to determine if you may be entitled to compensation.

Consumers purchase insurance for the peace of mind that if an unfortunate incident occurs, they have financial protection. Insurance providers happily accept premiums but do not always readily pay out legitimate claims. 

When you make a claim, an insurer may be within its rights to deny your claim if you are not covered under the terms, but insurance companies don’t always rely on the actual policy to deny coverage. Instead,  insurers often act in bad faith by knowingly and wrongfully refusing to pay a reasonable claim asserting technicalities which may not be accurate or in the policy.

If you have made a claim for any of the following, but have been denied, contact Our Firm today for a free evaluation to determine if you claim has been wrongfully denied, and if so, what remedies you may have avaiable:

• Auto accidents (uninsured motorist/underinsured motorist coverage)
• Hurricane/wind/flood insurance
• Fire loss and other property damage
• Umbrella policies