law breach of contract
To recover for breach of contract, a plaintiff must prove the existence of a valid contract, that the
plaintiff performed, that the defendant breached the contract, and that the defendant's breach caused
plaintiff injury. Winchek, 232 S.W.3d at 202. Recovery of attorney's fees from an adverse party is
allowed when a contract or statute permits the recovery. Tony Gullo Motors I, L.P. v. Chapa, 212
S.W.3d 299, 310 (Tex. 2006).
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).
Source:
08-0303 PAUL MOOD AND K&M DISTRIBUTORS v. KRONOS PRODUCTS, INC.; from Dallas County; 5th
district (05-06-00111-CV, 254 SW3d 8, 11-28-07, pet. denied Jun 2008)(breach and termination of a
distributorship agreement )