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Contracts & Breach of Contracts

Breach of contract can occur in various scenarios when one party fails to uphold the promises made in the contract. This can also occur as an anticipatory breach, also known as repudiation when one party clearly indicates that they do not intend to fulfill the promises made in the contract or takes steps to prevent the other party from performing their obligations. If you have experienced a breach of contract or have been accused of breaching a contract, contact our office today or complete our free case evaluation form to see how we can help.

What makes a contract legally binding in Texas?

According to Texas law, the requirements for a valid contract are:

1) an offer;
2) an acceptance in strict compliance with the terms of the offer;
3) a meeting of the minds on all essential terms of the contract (which is a subpart of the offer and acceptance elements);
4) each party’s consent to the terms of the contract;
5) consideration (a benefit each party gets, or expects to get, by entering the contract); and
6) execution and delivery of the contract with the intent that it is mutual and binding.

These requirements apply to both written and verbal contracts and must be accounted for in order for the contract to be valid. Without these elements, an enforceable contract does not exist.

Are there reasons that breaching a contract might make sense?

If market conditions, or other conditions have changed, since the making of the contract such that the expected cost of fully performing the contract is greater than the expected benefit to be derived from the fulfillment of the contract, then it might be economically efficient to breach the contract. In that situation, you are choosing to minimize losses by incurring the obligation to pay the non-breaching the lesser amount available in a breach of contract action then to take the more expensive step of fully performing the contract.

How is a breach of contract established and proven?

To prove a contract breach, one must first establish its existence. Then, one must prove the failure to perform an obligation under the contract. In order to win a breach of contract lawsuit, the plaintiff must prove: a valid contract, adherence to contract terms, defendant's failure to fulfill terms, and proof of resulting damages. A material breach is one in which a party is deprived of the benefits of the contract. A skilled and experienced contracts lawyer is necessary to argue the case in court and protect the plaintiff's interests.

  • What is a personal injury lawsuit?
    If you have been injured due to someone else's wrongful actions, you have the option to file a personal injury lawsuit. This legal action seeks to recover financial compensation for the losses you have suffered, such as medical bills, lost wages, and pain and suffering, among other things. To win the lawsuit, you must prove that the defendant is responsible for your injuries by showing that they were negligent and that their negligence caused your injuries. You must also prove that you have been damaged and the amount of those damages. If you don't settle your case before it goes to trial, the factfinder (which will be the judge in the case of a non-jury trial or the jury in the case of a jury trial) will determine whether someone’s negligence caused your damages and, if so, what those damages are worth. There are different things that will have to be proven in order to establish the wrongdoer’s negligence depending on the specific circumstances of your case, such as, for example, whether you were injured in a car accident or by a defective product.
  • How long do I have to file a personal injury claim?
    If you have been injured due to someone else’s negligence, it's crucial to act promptly. Waiting until the statute of limitations runs out can result in losing your right to bring a claim and therefore prevent you from recovering compensation you may be due for your injuries. The statute of limitations is a legal rule that establishes the time deadlines within which particular types of lawsuits must be filed. The primary purpose of limitations is to prevent the litigation of stale or fraudulent claims. Different states have different timelines for various types of cases. If you have a legal claim for personal injury under Texas law, the following deadlines may apply: General negligence claims: The limitation period for a negligence action is two years from the date of the incident (such as a car wreck). An action for negligence accrues when a wrongful act causes an injury, regardless of when the injured person learns of the injury or whether all resulting damages have already occurred. The action accrues even if the injury is not immediately apparent and the injured person is unaware of the breach. Therefore, if you have any inkling you have been injured as a result of the wrongful actions of another person it is crucial to consult an experienced personal injury lawyer as soon as you gain that inkling. When an action for negligence involves wrongful conduct inflicted over a period of time, a “continuing-tort” exception may apply to the accrual period, but again you should consult with an experienced lawyer who can advise you on the potential limitations date in your specific case. Wrongful death claims (a wrongful death claim is a claim that a surviving spouse, parent, or child may have to bring against a wrongdoer for actual damages arising from another person’s death): There are two statutes of limitations to consider in wrongful death actions: one for the decedent’s underlying claim and one for the beneficiary’s wrongful death claim. The decedent’s personal injury claim must be filed within the appropriate limitations period, which for most personal injuries is two years. If no lawsuit had been filed at the time of the decedent’s death, and the limitations period for the underlying claim has expired, the wrongful death lawsuit is barred. For example, if the decedent was seriously injured by the negligence of a driver of an 18-wheeler but survived for three years before dying and did not file suit before dying, the decedent’s statutory beneficiaries cannot file a wrongful death action. But if the decedent filed a personal injury lawsuit within two years of being injured by the 18-wheeler, the decedent’s statutory beneficiaries have two years from the date of the decedent’s death to file a wrongful death claim based on the decedent’s suit. This is because statutory beneficiaries must file a wrongful death claim within two years from the date the claim accrues, usually the date of the decedent’s death. Because the Wrongful Death Act permits an action by the decedent’s beneficiaries “only if the [the decedent] would have been entitled to bring an action,” an action accrues only if it exists at the decedent’s death (i.e., if the limitations period for the decedent’s claim has not expired at the time of the decedent’s death). There could be different accrual dates in wrongful death actions in cases involving asbestos and silica-related injuries or healthcare liability claims. Therefore, if you believe you have a wrongful death claim based on the death of a relative, you should consult a lawyer as soon as practicable to ensure that your potential claim is asserted on a timely basis. Cases against the government: Under the doctrine of sovereign immunity, a governmental unit is generally immune from suit and liability unless its immunity is waived. The Texas Tort Claims Act (“TTCA”) waives sovereign immunity in three general areas (a) injuries arising from the use of motor-driven vehicles or motor-driven equipment, (b) injuries arising from conditions or use of personal property, and (c) injuries arising from premises defects. To bring a suit against a governmental unit under the TTCA, an injured person must plead and prove (a) the statutory elements establishing waiver of immunity from suit and liability and (b) the common-law elements of the cause of action (such as the elements of a claim for negligence or for premises liability). Because the TTCA does not create a cause of action, the limitations period for a claim under the TTCA is based on the underlying cause of action (such as negligence or premises liability). However, the TTCA provides that a prerequisite to a waiver of sovereign immunity is the injured person’s requirement to give notice to the governmental entity of the incident giving rise to the injured person’s injury. There are certain statutory requirements that the notice must meet. The purpose of the notice requirement is to ensure prompt reporting of claims so governmental units can gather information needed to guard against unfounded claims, settle claims, and prepare for trial. The deadline for filing a notice of claim depends on whether the governmental entity responsible for the injured person’s injuries is the State, a county, a city, or some other governmental unit. Under the TTCA, an injured person (including a minor) must give the State notice of the claim no later than six months after the day the incident giving rise to the claim occurred. You must give notice within six months of the time of injury. Notice required for claims against a county may be shorter under the Texas Local Government Code. Finally, most cities in Texas have charter or ordinance provisions with notice deadlines that are shorter than the deadline set forth in the TTCA. In those instances, because the TTCA ratifies these provisions, an injured person must file the notice of claim by the deadline specified by the city charter or ordinance. Because potential injury claims against governmental entities are complex and failure to strictly comply with the various statutory notice provisions can jeopardize your ability to bring a claim, you should consult with an experienced personal injury attorney as soon as you believe you have been injured by the actions of a governmental entity. Product liability claims: A product liability action is any legal action taken against a seller or manufacturer to recover damages resulting from a defective product. In Texas, the statute of limitations for product liability claims is usually two years from the incident. Texas law also has a number of statutes of repose which are laws that extinguish a right of action after a specified period of time has elapsed, regardless of whether a cause of action has accrued. For example, in the product liability arena, the statute of repose begins to run upon the sale of the product and the injured person must commence a product liability action against a manufacturer or seller of a defective product before the end of 15 years after the date of the sale of the product by the manufacturer or seller. Therefore, if you're dealing with a product liability claim that involves a dangerous or defective device, to ensure that you file your lawsuit within the appropriate time limit, it's recommended that you speak with a qualified personal injury attorney who can provide you with guidance.
  • What information should I collect after a personal injury accident?
    To ensure as strong a case as possible, it's essential to keep various items and records like videos, photos, witness statements, police reports, medical records, bills, prescription receipts, lost wages information, property damage estimates, physical evidence, insurance information, repair invoices, and communication with the insurance company. We also recommend that you create and maintain a journal with a timeline of events that occurred before, during, and after the incident as soon as possible while the details are still fresh in your mind. Be sure to include any injuries and symptoms and update it if your condition worsens. This timeline can help when communicating with different insurance companies involved in your claim. By organizing these records, you can provide a clear picture of the damages you've suffered and help to strengthen your claim as much as possible.
  • How do I pay for a lawyer in a personal injury case?
    You might find exceptions, but most lawyers handling personal injuries are paid by their injured clients on a contingency basis.
  • What does contingency mean?
    In personal injury cases, a contingency fee payment arrangement is when the lawyer only gets paid if the client obtains a recovery for the client’s damages. The lawyer takes a percentage of the compensation the client receives as the fee for the lawyer’s services (in addition to the reimbursement of any out-of-pocket expenses incurred by the lawyer in working up the case). This agreement means that the lawyer shares the risk with the client that the case might not be successful. It is a legally binding contract between the lawyer and the client and is commonly used in personal injury cases. You should always take time to review a proposed contingency fee agreement before you sign it and ask the lawyer you are thinking of hiring any questions you may have about it before you agree to sign it. While the exact details contained in contingency fee agreements may differ from law office to law office, the basic terms of such agreements are similar in most instances.
  • How is negligence determined?
    Ultimately, assuming your case gets that far, the factfinder (which is the judge in a non-jury trial or a jury in a jury trial) will determine the question of whether negligence has occurred in your case based on the facts introduced into evidence. The elements of a cause of action for negligence are the following: 1. The wrongdoer owed you a legal duty. A duty is a legal obligation that requires the wrongdoer to conform to a certain standard of conduct to protect others against unreasonable risks. A duty can arise either by statute or common law and the existence of a duty is generally a question of law although it can present a factual question for the factfinder to resolve when the facts involving the duty are in dispute. 2. The defendant breached the duty of care owed to you. Within each legal duty is a required standard of care. A legal duty is breached when the wrongdoer does not meet the required standard of care. The standards of care that a wrongdoer may be required to exercise are (a) ordinary care (applicable in most circumstances), (b) a high degree of care, (c) a child’s degree of care, and, (d) any degree of care established by statute. The question of whether a wrongdoer breached the legal duty of care by failing to act in a particular case in accordance with the applicable standard of care is a question of fact to be determined by the factfinder. 3. The wrongdoer’s breach of the duty of care approximately caused your injury. Proximate cause is usually a question of fact for the factfinder under the particular circumstances of the case unless the evidence is undisputed and only one reasonable inference may be drawn. The components of proximate cause are (a) cause-in-fact and (b) foreseeability. The test for cause-in-fact or “but for” causation is whether the negligent act or omission was a substantial factor in bringing about the injury and whether the injury would have occurred without the act or omission. To prove the foreseeability prong of proximate causation, an injured person must establish that a person of ordinary intelligence should have anticipated the danger created by the negligent act or omission.
  • How do I know if I even have a case?
    There is no way to know whether you have a potentially valid legal case to recover for personal injuries until you discuss the facts of your potential case with an experienced personal injury attorney. If you're unsure whether you have a valid personal injury claim, it's best to seek legal counsel immediately as soon as possible following the incident that resulted in your injuries. An experienced attorney can investigate the situation and provide advice on whether pursuing a claim is worthwhile based on the laws applicable to your situation. It's a common misconception that accidents are unavoidable. While that may be true in some instances, a thorough investigation by a lawyer is necessary to determine if there is a case to be made. Therefore, contacting an attorney is crucial to fully understand your options.
  • How do I know how much my claim is worth?
    When determining the compensation for a personal injury claim, various factors are considered. These include, among other things, the exact nature and seriousness of the injury, how the injury has affected your daily life and ability to work, medical expenses, future care requirements, and loss of earnings or loss of earning capacity. It is important to note that each case is different, and the compensation recoverable in any particular case may vary accordingly from compensation recoverable in other specific cases.
  • How do I know If I need a lawyer? Can I handle my case without a personal injury attorney?
    It is possible to file a personal injury lawsuit without a lawyer, but the legal process can be complex and confusing. The proceedings involve strict rules and timelines, and missing a filing date, even by one day, could result in losing the opportunity to recover compensation. Additionally, lawsuits can incur numerous expenses. A personal injury law firm may cover the legal costs during the pendency of the lawsuit and only charge a fee and recover the advanced case expenses after securing compensation for the case. If the injuries are serious, it is advisable to consult an attorney. Hiring an attorney immediately after an injury offers several advantages. Insurance companies may start questioning the incident right away, and their adjusters may appear helpful but could be seeking to damage the case or pay you less than full value to resolve your claims. A personal injury lawyer can handle communication with insurance companies, removing the burden from the injured person. Moreover, having an experienced attorney representing the injured person's best interests can reduce stress and attempt to ensure that harmful information is not imparted to the insurance company or police that could harm your chances of recovering for your medical expenses, potential lost wages, and pain and suffering.
  • How much experience does your firm have?
    Guy has thirty-five years of experience representing individuals and businesses as both plaintiffs and defendants in state and federal courts throughout Texas and the United States. Guy spent more than the first two decades of his career with two national law firms.
  • What is the typical legal process like for a personal injury lawsuit?
    Once a lawsuit is filed, the court will typically issue a scheduling order that sets forth deadlines by which various items must be completed. The initial phase of a lawsuit is the “discovery phase” which involves the process where each side finds out about the other side’s positions and contentions. This is typically achieved through the exchange of written discovery such as interrogatories, requests for admissions, and requests for production (which also involves each side providing the other side with all existing documents relevant to a case). After the parties exchange written discovery, they typically take depositions of the most important witnesses in order to determine what the witness has to say about the facts of the case. After discovery is complete, the two sides will typically attempt to settle the case without going to trial, either through informal settlement discussions or through a court-ordered mediation process. If the parties are unable to settle the case, then a trial will be necessary. If you're considering filing a lawsuit for a personal injury, seeking the guidance of a seasoned attorney at GIW PLLC is a wise decision. We’ll examine your claim, expenses, and damages to ascertain the compensation you're potentially entitled to receive. Whenever possible, we’ll attempt to resolve the matter through negotiation outside of court, whether that is through informal discussions as the case proceeds through the court process, or through a more formal process such as a court-ordered mediation. In most cases in Texas, courts will require you to go through a formal mediation process using the services of an experienced third party neutral known as a mediator before the court will allow your case to proceed to trial. Cases are often resolved at the mediation stage before they get to a formal trial in a courtroom. In some instances, however, lawsuits do not get settled pretrial through negotiation, whether informally or through the mediation process. Such cases do require a trial, which concludes with a verdict, and if the verdict is in your favor you may be awarded financial compensation to cover your damages resulting from the injury. Regardless of whether your case is resolved through negotiation or proceeds to trial, you may be entitled to compensation once the matter is concluded. Ultimately, the goal is to receive payment for all your losses that resulted from the harm done to you. Hiring a skilled lawyer, such as Guy Wade, can enhance your probability of achieving a favorable outcome.
  • How long will a personal injury lawsuit take?
    Dealing with legal disputes following a difficult experience can be daunting. However, it’s difficult to predict how long a personal injury claim will take because the length of time can depend on several factors. It can range from a few months to several years depending on the complexity of the case. While it may not be the most satisfying answer, it's crucial to have a skilled and confident personal injury lawyer on your side, no matter how long it takes. Their knowledge and experience can make all the difference in obtaining a successful outcome in your case. If you'd like to discuss your case and learn about possible outcomes, please contact GIW PLLC’s office, or complete our free case evaluation form.
  • What should I expect during my first meeting with a personal injury lawyer?
    When meeting with a lawyer, which might occur either in person or over the telephone, they will ask you general questions to get basic information about your potential case. It is important to be truthful and share everything with the lawyer, regardless of whether you think something is important or not, so they can represent you accurately. The first thing the lawyer will ask is for you to tell your injury story. Make sure to explain how your injuries occurred and answer any questions they may have. Anything you tell the lawyer will be kept confidential through the attorney-client privilege. Be prepared to answer questions about yourself, the incident at issue, your injuries, and how your life has been affected since the incident. It's okay if you don't know the answer to a question, as the lawyer just wants to gather essential facts about the case to provide accurate legal advice. To provide the lawyer with a better understanding of what happened and who may be legally responsible for the incident, if anyone, bring as much documentation about the incident as possible. Important documents to bring include the police report, a written description of the incident, any medical records, pay stubs, photographs, and eyewitness statements.
  • What if I’m in the hospital and can’t come to the office?
    We can usually cover everything that is essential to get started on investigating your claim with a conversation over the telephone. But if you are more interested in a face-to-face meeting, we can come visit with you at the hospital after receiving a call from you specifically asking us to do so. There are rules that prevent lawyers from showing up at an injured person’s hospital room on an unsolicited basis without being invited to do so by the injured person. Not all lawyers abide by those rules but The Law Office of Guy I. Wade, III, PLLC takes those rules seriously and we will never show up at your hospital room without you expressly asking us to come. If a lawyer shows up in your hospital room without you inviting that lawyer there, you should decline to speak with that lawyer and politely demand that they leave.
  • Do I have to go to court for a personal injury lawsuit?
    The Law Office of Guy I. Wade, III, will aim to solve any issues through negotiation outside of court whenever possible. However, in some cases, settling a lawsuit through negotiation may not be feasible. Such cases may require a trial and when a trial is required, your attendance at court will be absolutely necessary unless your physical presence is impossible or a medical professional advises against it. You might also have to attend certain pretrial hearings depending on the issue and whether live testimony is necessary at such a proceeding, but those instances are the exception rather than the norm.
  • What is a deposition?
    During a deposition, opposing lawyers will conduct a question-and-answer session with you during which you are under oath and subject to the penalties of perjury just as if you were testifying in front of a judge and/or jury in a courtroom. This is an important step in the legal process as it helps lawyers prepare for the trial and ultimately impacts the outcome of the case. The purpose of a deposition is to allow the opposing lawyers to find out the details of your story as far as how the injury occurred and how the injuries have affected your life. They want to know what your story is going to be if things get to the point where you are actually testifying in court at a trial of the case. Typically, the deposition process takes place in a lawyer's office where a court reporter and maybe a videographer will be present to record everything said during the deposition. While the purposes for which depositions may be used after they are taken may vary from state to state, in Texas, your deposition testimony can be read verbatim to a judge and/or jury in a trial. Therefore, it's crucial to be well-prepared for a deposition as anything you say can be used as evidence against you in your personal injury lawsuit, even if the setting may seem informal. The lawyers at GIW PLLC will conduct a thorough pre-deposition meeting with you to make sure you are as prepared as possible for the process.
  • What damages are available in a personal injury case? What compensation might I expect to get from a lawsuit?
    Generally, if you bring a case to recover for personal injuries in Texas, there are three types of damages that you may be eligible to recover: economic damages, non-economic damages, and exemplary damages. Economic damages are easier to calculate because they involve tangible losses such as medical bills, lost wages, loss of earning capacity, property damage, and out-of-pocket expenses. Non-economic damages are less tangible and may include mental anguish/emotional distress, pain and suffering, disfigurement, and loss of quality of life (also known as physical impairment). The amounts recoverable for non-economic damages might be subject to statutory limits in certain types of cases, such as, for example, where a governmental entity is allegedly responsible for your injuries. Exemplary damages, also known as punitive damages, are awarded in cases where the defendant acted with gross negligence (which is defined as an act or omission when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others, of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others), fraud, or malice. Furthermore, individuals who file a claim for wrongful death may have the opportunity to receive compensation for costs associated with the funeral (if they actually paid the funeral expenses), as well as the loss of companionship, society, and inheritance.
  • What is loss of consortium?
    A claim for loss of consortium is derivative of the injured person’s claim. Loss of consortium is based on the loss of love, affection, protection, emotional support, companionship, care, and society that can occur when a family member is injured. In the event a close family member, such as a spouse, parent, or child, is harmed or killed, you may be eligible to bring a personal injury claim for loss of consortium. This is because the claim is intended to compensate for the loss of a relationship rather than physical injury. Loved ones have the right to seek potential monetary compensation from the responsible party for damages resulting from the loss of intimacy and other related damages. The definition of loss of consortium may vary by state but generally includes the loss of comfort, care, assistance, society, protection, marital intimacy, or fertility.
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