Bret’s client is a copper commodities trader. His client contracted to purchase copper scrap from a seller in Texas. The price of the copper scrap was set by reference to a commodities exchange known as COMEX. Bret’s client confirmed a purchase of 100,000 lbs. of copper scrap at a price of $3.31 per pound. The seller failed to deliver the copper scrap and claimed that there was no written contract. There were e-mail exchanges confirming the transaction; however, the seller contended that the e-mails were non-binding.
After looking at the relevant documents, including the history of the relationship and communications between the parties, Bret noticed that the parties had transacted similar business (the buying/selling of copper scrap) on two prior occasions. Neither of the prior transactions was evidenced by a written contract. Further, the terms for both the pricing and payment for the copper scrap were identical in both prior transactions.
Bret’s client filed a lawsuit in federal court seeking an amount equal to the difference between the market price at the time when his client was told by the seller that they refused to honor the terms of their agreement ($4.40 per pound), and the contract price ($3.31 per pound), together with any incidental or consequential damages. The difference between the market price and the contract price was $1.09 per pound. Bret’s client’s damages (not including incidental or consequential damages, or related attorneys’ fees) equaled $109,000.00.
The seller contended that there was no written contract and that the e-mail exchanges and past dealings were not enough to make a contract stand up in court. Bret argued that the “Merchant’s Exception” applied to the transaction. The “Merchant’s Exception” states that if, within a reasonable time, a writing in confirmation of the contract and sufficient against the sender is received, and the party receiving it has reason to know its contents and does not give written notice of its objection within ten days after receipt, there need not be a written contract.
Bret also explained to the Court that the two prior transactions were important to the extent that they evidenced a course of dealing between the parties. In other words, it was the parties’ course of dealing to trade with each other WITHOUT a written contract.
The case was settled before the beginning of trial. Bret’s client recovered damages and attorneys’ fees in the settlement.
Bret’s client is a private yacht club that contracted for the construction of new docks. The yacht club signed a written construction contract with a general contractor that specialized in dock construction. The construction contract described the work to be performed and the warranties that would accompany the work. The construction contract required the contractor to maintain insurance coverage throughout the work. The insurance policy named the yacht club as an additional insured and certificate holder.
The yacht club designated and provided a staging/launch area that was to be used by the contractor and its subcontractors during the launching and staging of the new docks. This was done to minimize the physical impact and damage to the yacht club’s property during the offloading and staging of the docks. The parties agreed that the docks were to be offloaded directly from flatbed trucks into the water. The contractor contractually agreed that it would be responsible for any damage outside of the designated staging/launch area.
Instead of shipping the constructed dock pieces to the yacht club in a manner that would have allowed offloading directly into the water, the contractor shipped the dock pieces in a manner that required its subcontractors to use areas of the parking lot that were outside of the designated staging/launch area. Instead of offloading the dock pieces from the flatbed trucks into the water (as agreed), the contractor used a forklift (as opposed to a crane) and caused extensive damage to the yacht club’s parking lot in sections outside of the designated staging/launch area.
The yacht club sustained significant damage to its parking lot. The yacht club contended that this damage was the contractor’s sole responsibility under the construction contract and sought to offset the cost of repairing the damage against the amount that remained due to the contractor.
The yacht club retained Bret and he immediately demanded that the contractor meet the conditions for completion of the project, including the resolution of the property damage claim and a lengthy punch list of items that remained to be completed in order to satisfy the contract’s terms. In connection with this process, a claim was also presented to the contractor’s insurer for the damage to the yacht club’s property.
After multiple meetings of representatives and the exchange of settlement terms between counsel, the parties were able to resolve the dispute, including a successful resolution of the insurance claim.
Bret’s client is a General Contractor (GC) that was hired to build a gun range. The parties (Bret’s GC client and the owner) entered into a written contract for an agreed price of approximately $1.3 million. The gun range was built, and a Certificate of Occupancy was issued; however, the owner failed to pay the agreed price.
The difference between the cost of building the gun range and the partial payments that were made by the owner was over $400,000.00. This amount included sums that were owed both to Bret’s GC client as well as to many of the subcontractors that performed the work.
Bret’s GC client complied with the provisions of Subchapter C of Section 53 of the Texas Property Code by timely mailing the required statutory notices, timely filing a proper materialman's lien affidavit with the Dallas County Clerk, and timely and properly mailing a copy of the materialman's lien affidavit to the owner. Bret’s GC client then filed a lawsuit seeking to establish and foreclose its lien.
One of the unpaid subcontractors (a materialman) also filed a lawsuit against the owner. The two (2) lawsuits were consolidated into one case. The owner then joined all the subcontractors that were owed money for work performed on the gun range. This was done with Bret’s GC client’s cooperation and in order to facilitate a mediation of the dispute between all parties.
A nine (9) party mediation was conducted before any of the parties to the litigation incurred significant legal costs. The case was successfully resolved by the owner making payment into an escrow account established for the purpose of resolving claims. All of the parties received a portion of what they claimed; however, other than the legal fees associated with the filing of the lawsuit and the mediation of the case, Bret’s GC client successfully avoided a significant legal expense.
Bret’s client, a fuel distributor, signed a 10 year fuel supply contract with a company that owned a Fina gas station in Plano, Texas. In addition to obligating the Fina station to buy gas from Bret’s client for a 10 year period, the contract required that the station sell gasoline under one of the Valero brands (Shamrock, Diamond Shamrock or Valero). In exchange for signing the 10 year contract, Valero agreed, at its sole expense, to convert the station’s brand from Fina to Diamond Shamrock. This type of contract (commonly known as an incentive agreement) also provided incentive payments in the form of rebates to the station owner in exchange for selling Valero branded gasoline.
The company stopped paying Bret’s client for fuel and transferred ownership of the gas station to a trust created by the individual shareholders of the company for their sole benefit. The newly created trust then sold the property to a bank who desired to put a branch at the location previously occupied by the gas station.
Bret’s client sued the company for breach of the incentive agreement. The 10 year contract contained a clause that required the repayment of all incentives if the 10 year commitment was not fulfilled. By selling the gas station before the 10 years had expired, the company had breached the fuel supply contract. In addition, Bret recommended filing suit against the trust claiming that the property that was sold to the bank was a fraudulent transfer that impacted the company’s creditors.
After a three day jury trial in the 134th Judicial District Court of Dallas County, Texas, a jury returned a verdict for Bret’s client.
Bret’s client contracted to purchase real property from the estate of a deceased individual. A Real Estate Agreement was signed by the client and the executor of the estate. Under the terms of the Real Estate Agreement, the client agreed to purchase 10 lots, all of which were to be financed by Bank of America, N.A. (BOA). Six of the lots, were financed by a $96,000.00 loan from BOA. The other four lots were financed by an $18,000.00 loan from BOA. At closing, the independent executor of the estate conveyed title to all 10 lots to Bret’s client.
Shortly thereafter, BOA notified the client that it was unwilling to finance the purchase of four of the 10 lots. BOA signed a Partial Release of Lien under the terms of which it released and discharged the four lots from any liens, security interests, or other rights, titles, and interests held by BOA to secure payment of the indebtedness, obligations, and liabilities evidenced by the $96,000.00 note that secured the purchase of the other six lots.
Bret’s client was able to obtain financing for four lots from JPMorgan Chase Bank, N.A. The executor of the estate conveyed title to the remaining four lots to Bret’s client. The client paid JPMorgan Chase Bank in full and JPMorgan Chase Bank recorded a release of its lien.
Subsequently, Bret’s client defaulted on his obligations under the terms of the $96,000.00 loan from BOA. As a result, BOA appointed a substitute trustee under the original deed of trust securing the $96,000.00 loan. The substitute trustee conducted a foreclosure sale and sold all 10 lots to Federal National Mortgage Association a/k/a Fannie Mae for $93,923.35. BOA did not have the power to sell all 10 lots since it had released its lien against four of the lots.
By holding the foreclosure sale without such power and failing to strictly follow the terms of the power granted to it under the Deed of Trust as modified by the Partial Release of Lien, BOA committed wrongful foreclosure of Bret’s client’s property. As a result, the purchaser at the foreclosure sale did not obtain title to four of the lots because there was no authority granted to BOA to sell that property.
Bret threatened to file a lawsuit seeking damages for wrongful foreclosure; to set aside the Substitute Trustee’s Deed that was given to Fannie Mae at the foreclosure sale, and declaratory relief under Chapter 37 of the Texas Civil Practice & Remedies Code, including a request that the Substitute Trustee’s Deed be set aside as void. This threat was conveyed to the law firm that was involved in the foreclosure sale and resulted in a settlement in favor of Bret’s client without ever having to file the suit.