Please Help Me Get My Money!
BREACH OF CONTRACT, also known as BREAKING YOUR WORD, also sometimes part and parcel to LYING
TABLE OF CONTENTS
- Business Contracts
- Consumer Contracts
- To Read Or Not To Read (Is A Contract Enforceable If It Is Signed But Not Read?)
- Statute Of Limitations (Must Sue For Breach Of Contract Within Four Years)
- Texas Allows Attorney Fees As Damages In Breach Of Contract Actions (This Can Be Kind Of A Big Deal)
- Promissory Estoppel And Quantum Meruit (If You Can’t Sue For Breach Of Contract, Consider These Causes Of Action)
- Can I Afford An Attorney?
- Local Counsel And Pro Hac Vice
- Title Companies
I. BREACH OF CONTRACT IS AN AGE OLD PROBLEM THAT EVEN PLATO WROTE ABOUT
“If a man fails to fulfill an agreed contract – unless he had contracted to do something forbidden by law or decree, or gave his consent under some iniquitous pressure, or was involuntarily prevented from fulfilling his contract because of some unlooked-for accident – an action for such an unfulfilled agreement should be brought in the tribal courts, if the parties have not previously been able to reconcile their differences before arbitrators (their neighbors, that is).”
Plato, The Laws, Book 11, §23, Contracts
Contract law is literally as old as Plato, and in some ways the law has not changed much during the past few thousand years. But Plato is gone, so if someone has breached a contract with you, or if you are being falsely accused of breaching a contract, call me so I can help you. Consider me Plato 2.0. The primary focus of my practice is resolving disputes between people and businesses. My hope is always that resolution can occur without the need for expensive litigation at the courthouse, and to this effect, I typically do all I can to encourage formal and informal mediation as soon as possible (mediation is promoted by Plato and akin to his opinion that prior to bringing a breach of contract claim before the “tribal courts,” the parties should try to have their differences resolved with the assistance of their “neighbors”). However, if push comes to shove, I am ready and prepared to take your case as far as it needs to go through our court system in an attempt to get you the proper justice you deserve.
Whether it’s a real estate sales agreement, promissory note, partnership agreement, or vendor agreement, just to name a few, the interpretation of contracts and their contextual meaning is not always simple and straightforward. If you are having trouble determining whether a breach has occurred or have any other questions relating to the interpretation and enforcement of a contract, please give me a call.
III. BUSINESS CONTRACTS
Business contracts are often the product of serious and substantial negotiations intended to create predictable damage models to apply when a breach occurs, but it is impossible to foresee every contingency. Even highly negotiated business contracts often encounter novel or nuanced factual circumstances that leave the parties scratching their heads about whether a breach occurred, and if so, what damages are available under the contract and Texas law. When it is unclear whether a breach has occurred or not, or what damages flow from such breach, it is time to give me a call.
IV. CONSUMER CONTRACTS
Most consumers do not fully read or negotiate contracts that they enter into with businesses. Even though consumers arguably have an unequal bargaining position, they are still bound by the terms of the contract they signed (either physically or virtually, such as through the checking off of a box on a corporation’s webpage). However, consumers are not at a total disadvantage when it comes to interpreting these contracts because many times the common meanings of the words in the contract are used to determine their contractual meaning. In other words, a contract is typically interpreted as the words are commonly understood and not through the lens of any expertise or special knowledge. If you are having trouble understanding a contract you entered into and are wondering whether a breach has occurred or not, it is time to give me a call.
V. TO READ OR NOT TO READ (Is a contract enforceable if you signed it but didn’t read it?)
As long as you sign a contract, you are bound by its terms regardless of whether or not you have read the contract. However, if the other party drafted the contract and advised you not to read the contract but to simply sign it, they have created circumstances that could form the basis for arguing that the contract is unenforceable.
VI. STATUTE OF LIMITATIONS (must sue for breach of contract within four years)
You must bring an action for breach of contract within four years of the breach; this is known as the applicable statute of limitations. However, there are a number of exceptions to the four-year rule, and if someone breached a contract with you over four years ago, there may still be a legal basis for you to bring your action “late.”
To prove an enforceable contract exists, a party must establish the following elements:
- An offer,
- An acceptance,
- A mutual assent,
- Execution and delivery of the contract with the intent that it be mutual and binding, and
The elements of an action for breach of contract are the following:
- There is a valid, enforceable contract,
- The plaintiff (that is, the party suing another for breach of contract), is a proper party to sue for breach of contract,
- The plaintiff performed, tendered performance of, or was excused from performing its contractual obligations,
- The defendant (the party being accused of breaching the contract), breached the contract, and
- The defendant’s breach caused the plaintiff’s injury.
Some of these elements are easily ascertainable, while others present issues that necessitate an experienced attorney’s opinion and/or legal research. If you think you might have a cause of action for breach of contract against a person or business, give me a call.
VIII. TEXAS ALLOWS ATTORNEY FEES AS DAMAGES IN BREACH OF CONTRACT ACTIONS
In civil courts the typical rule is that litigants are responsible for paying their own attorney fees and cannot recover those fees as damages. However, Texas is one of the few states that allows for the possibility of recovering attorney fees in breach of contract actions. This is significant because in some cases the attorney fees can exceed the actual damages caused by the breach. Thus, in Texas, when one is threatened with a breach of contract action, the threat is intensified by the possibility that the plaintiff may recover all of his attorney fees at trial, which may be in the thousands, tens of thousands, or even the hundreds of thousands of dollars (millions is not unheard of, but very rare to say the least).
IX. PROMISSORY ESTOPPEL AND QUANTUM MERUIT
If you think you have been the victim of a breach of contract but for some reason you can’t prove all of the elements necessary to sue for such breach (see above), you still may be able to obtain relief through other causes of action such as promissory estoppel or quantum meruit. Promissory estoppel does not require a contract, only a promise (which can be oral), and reasonable reliance upon that promise. In addition, a cause of action for quantum meruit provides recovery for the value of goods and/or services provided to another, without any contract, but for which the receiver of such goods and services had been provided with reasonable notice that compensation was expected. Other causes of action such as fraud might also be at your disposal depending on the specific facts of your case.
X. CAN I AFFORD AN ATTORNEY?
I typically work on an hourly rate and require a retainer. However, sometimes I will consider a contingency arrangement wherein my client will only owe attorney fees if I am able to obtain a recovery on his or her behalf. A standard contingency agreement affords a successful attorney 33 1¤ 3% of all monies recovered prior to the filing of litigation/arbitration, with an increase to 40% after suit has been filed.
XI. LOCAL COUNSEL AND PRO HAC VICE
If you live out of state and need a Texas attorney to represent you or your business, give me a call. I can serve as local counsel in any county in Texas, but most probably would only be your best bet if you have been sued, or need to sue, in a North Texas county. The busiest (in terms of litigation) four North Texas counties are Dallas, Tarrant (Ft. Worth), Collin (Frisco, McKinney, and Allen) and Denton, and I practice and have experience in each of these counties.
If you have a lawyer you want to handle your matter, I can do the minimum required under Texas law to act as local counsel, or I can do the maximum and basically handle every aspect of your case independently, merely keeping your attorney informed of significant events. I have worked as local counsel in both minimum and maximum capacities and would be happy to discuss your situation with you or your attorney.
Also, if you have an attorney you want to be admitted in Texas only for a single and particular case I can most probably facilitate such an admission which is known as a pro hac vice admission (I say “most probably” because I have to make an independent assessment regarding your attorney’s ability to practice in Texas pro hac vice and thus I cannot say or imply that I will automatically vouch for an attorney wanting to practice in Texas).
XII. TITLE COMPANIES
Many times title companies become aware of potential breach of contract issues that necessitate possible legal representation. If you have any possible title-related contract issues, call my firm so we can help you. You can reach us at 214-522-6202. We are located in Irving.