law breach of contract
BREACH OF CONTRACT - CASELAW SNIPPETS
The essential elements of a breach of contract claim are (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 as a result of the breach. Valero Marketing & Supply Co. v. Kalama Int'l, 51 S.W.3d
345, 351 (Tex.App.-Houston [1st Dist.] 2001, no pet.). "A breach of contract occurs when a party fails or
refuses to do something he has promised to do." Mays v. Pierce, 203 S.W.3d 564, 575 (Tex. App.-Houston
[14th Dist.] 2006, pet. denied).
To prevail on a breach of contract claim, a party must establish that: (1) a valid contract existed between
the plaintiff and the defendant; (2) the plaintiff tendered performance or was excused from doing so; (3)
the defendant breached the terms of the contract; and (4) the plaintiff sustained damages as a result of
the defendant's breach. See Valero Mktg. & Supply Co. v. Kalama Int’l, 51 S.W.3d 345, 351 (Tex. App.—
Houston [1st Dist.] 2001, no pet.). “A breach occurs when a party fails or refuses to do something he has
promised to do.” Dorsett v. Cross, 106 S.W.3d 213, 217 (Tex. App.—Houston [1st Dist.] 2003, no pet.).
Generally, the measure of damages for breach of contract is that which restores the injured party to the
economic position he would have enjoyed if the contract had been performed. Sava Gumarska v.
Advanced Polymer Sciences, Inc., 128 S.W.3d 304, 317 n.6 (Tex. App.-Dallas 2004, no pet.). This
measure may include reasonably certain lost profits. See Cmty. Dev. Serv., Inc. v. Replacement Parts Mfg.,
Inc., 679 S.W.2d 721, 725 (Tex. App.-Houston [1st Dist.] 1984, no writ.) Lost profits are damages for the
loss of net income to a business. Miga v. Jensen, 96 S.W.3d 207, 213 (Tex. 2002). Lost profits may be in
the form of direct damages, that is, profits lost on the contract itself, or in the form of consequential
damages, such as profits lost on other contracts or relationships resulting from the breach. See
Continental Holdings, Ltd. v. Leahy, 132 S.W.3d 471, 475 (Tex. App.-Eastland 2003, no pet.). But
regardless of whether the lost profits are characterized as direct or consequential damages, the amount of
the loss must be shown by competent evidence with reasonable certainty, be based on objective facts,
figures, or data, and be predicated on one complete calculation. See Holt, 835 S.W.2d at 84. The injured
party must do more than show that they suffered some lost profits. See Szczepanik v. First Southern Trust
Co., 883 S.W.2d 648, 649 (Tex. 1994). Finally, consequential damages may not be recovered unless they
are foreseeable and traceable to the wrongful act and result from it. See Stuart v. Bayless, 964 S.W.2d
920, 921 (Tex. 1998).
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