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Covenant Not to Compete - Attorney's Fees

May 6, 2013 — by Jeff Mundy
Tags: Contract Law Commercial Litigation Covenant Not To Compete

In the context of a personal-services agreement, attorney's fees may be awarded to a promisor who satisfies certain evidentiary requirements in defending against enforcement of an unreasonable covenant.

Franlink Inc. v. GJMS, (Tex. App. - Houston [14th Dist.] )


First Right of Refusal - Real Estate & Contract Law

May 2, 2013 — by Jeff Mundy
Tags: Contract Law Commercial Litigation Real Estate

A right of first refusal is essentially a dormant option. It requires the owner, before selling the property to another, to offer the property to the rightholder on the same terms or conditions specified in the offer by or to a bona fide purchaser.  The property owner has an initial duty to make a reasonable disclosure of the offer's terms.  When the property owner expresses its intention to sell, the rightholder must, in compliance with the terms of the right, elect to either purchase the property or decline to purchase it and allow the owner to sell it to another.

Jarvis v. Peltier, (Tex. App. - Tyler, 2013)


Franchise Dispute - Gold's Gym

Apr 29, 2013 — by Jeff Mundy
Tags: Contract Law Commercial Litigation Settlement Agreement

To prevail on a breach-of-contract claim, it must be proven that (1) a valid contract between plaintiff and defendant existed, (2) the plaintiff performed or tendered performance, (3) the defendant breached the contract, and (4) the plaintiff sustained damages as a result of the breach.

Gold's Gym Franchising v. Brewer (Tex. App. - Dallas, 2013)


Contract Law - Mutual Mistake & Novation

Apr 9, 2013 — by Jeff Mundy
Tags: Contract Law

To prove a mutual mistake, the evidence must show that both parties were acting under the same misunderstanding of the same material fact. Id. A unilateral mistake by one party, combined with knowledge of that mistake by the other party, is equivalent to mutual mistake. Davis v. Grammer, 750 S.W.2d 766, 768 (Tex. 1988). But, "[a] mistake by only one party to an agreement, not known or induced by acts of the other party[,] will not constitute grounds for relief." Smith-Gilbard, 332 S.W.3d at 713-14 (quoting Johnson v. Snell, 504 S.W.2d 397, 399 (Tex. 1974)). Mutual mistake should not be available to avoid the results of an unhappy bargain. Williams v. Glash, 789 S.W.2d 261, 265 (Tex. 1990). Parties should be able to rely on the finality of freely bargained agreements. 

New York Party Shuttle LLC v. Bilello, (Tex. App. - Houston [1st Dist.] 2013)


Contract and Construction Law, Damages

Mar 16, 2013 — by Jeff Mundy
Tags: Contract Law

As a general rule, a plaintiff seeking "to recover the reasonable value of services rendered or materials supplied will be permitted to recover in quantum meruit only when there is no express contract covering those services or materials." Truly v. Austin, 744 S.W.2d 934, 936 (Tex. 1988) [Emphasis added]. "There are instances when recovery in quantum meruit is permitted despite the existence of an express contract that covers the subject matter of the claim." Id. [Emphasis added]. In a dispute involving a contract case, such as the one here, a breaching plaintiff may recover in quantum meruit for the reasonable value of services less any damages suffered by the defendant. Id. at 937. "Central to the contractor's right to recover in quantum meruit is the owner's acceptance and retention of the benefits arising as a direct result of the contractor's partial performance." Id. [Emphasis added].


Real Estate Agent Fee Law

Mar 13, 2013 — by Jeff Mundy
Tags: Contract Law

RELA provides a party may not maintain an action to recover a commission for the sale or purchase of real estate unless the promise or memorandum on which the action is based is in writing. TEX. OCC. CODE ANN. § 1101.806(c). Strict compliance with RELA is required; an agreement to pay a real estate commission must be in writing to be enforceable. Lathem v. Kruse, 290 S.W.3d 922, 925 (Tex. App.--Dallas 2009, no pet.).


Attorney's Fees for Breach of Implied Warranties

Feb 2, 2013 — by Jeff Mundy
Tags: Contract Law

 A claim for breach of express warranty governed by UCC article 2 is a suit based on a written contract, even though the plaintiff did not plead a breach of contract claim and did not recover on that theory.... a party who prevails on a breach of express warranty claim may recover attorney's fees.

 "A warranty that the goods shall be merchantable is implied in a contract for their sale if their seller is a merchant with respect to goods of that kind." "An implied warranty is a representation about the implied quality or suitability of a product that the law implies and importsinto a contract." ... In other words, an implied warranty becomes part of the terms of a contract.


Contract Prevails Over Statutory Law

Jan 14, 2013 — by Jeff Mundy
Tags: Contract Law

... unless a contract is declared by law to be void or unenforceable, a court should not refuse to enforce a contract simply because it is in contravention of a statute. ... The court explained that if the legislature has expressly provided that other consequences may arise from violation of the statute, a reviewing court should reasonably infer that those consequences were adjudged to be adequate to secure the statute's observance, and that only those remedies should be applied. 

International Risk Control LLC v. Seascape Owners Association, (Tex. App. - Houston [14th Dist.] 2013).


Texas Contract Law

Jan 6, 2013 — by Jeff Mundy
Tags: Contract Law

In disputes over the meaning of a contract, courts first look to the plain language of the contract to determine whether it is ambiguous. "In Texas, whether a contract is ambiguous is a question of law." A contract is ambiguous "if its plain language is amenable to more than one reasonable interpretation."   If a contract is unambiguous, we apply its plain meaning and enforce it as written.  If a contract is ambiguous, then, and only then, do we consider extrinsic evidence for "the purpose of ascertaining the true intentions of the parties expressed in the contract." 


Contract & Construction Law Brief Summary

Nov 24, 2012 — by Jeff Mundy
Tags: Contract Law

An aunt lent her nephew money to purchase and renovate a townhouse for resale for profit.   The dispute involved the interpretation and application of the contract between them, as well as the equitable remedy of "quantum meruit" for the value of his work.


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