Wright & Greenhill, P.C.

Why proving “consumer status” is the biggest challenge in a DTPA defense

2026-08-20T10:57:12Z

The Texas Deceptive Trade Practices Act (DTPA) can hit a business hard. Even one claim can lead to triple economic damages (if the conduct was knowing or intentional) and required legal fees paid to the winning side. Because the penalties can be so serious, businesses need strong defenses from the start.

Consumer status is your first and strongest defense

First, it helps to know this: not everyone can sue under the DTPA. To use the DTPA, the person bringing the claim must prove they were a “consumer” during the transaction. So, what counts as a consumer? Under Texas law, a consumer is any individual or business entity that seeks or acquires goods or services by purchase or lease. Because of that rule, large business entities with assets over $25 million or transactions that do not involve “goods or services” do not qualify. That is why, when a company faces a DTPA claim, the legal team should quickly check whether the other side truly meets the consumer definition. If they do not, the court may dismiss the DTPA claim early, which can save time and money.

Professional service exemptions can offer protection

Next, Texas law treats some professional relationships differently. Certain licensed professionals—especially those who provide specialized advice—may fall under the professional service exemption. This exemption often applies when the complaint focuses on a professional’s advice, judgment or opinion instead of the simple sale of a product. In other words, if the dispute centers on specialized knowledge, the DTPA may not apply. As a result, a strong defense should clearly explain whether the case involves professional judgment rather than consumer-style buying and selling.

The 60-day notice rule creates a chance to respond early

Also, the DTPA requires the plaintiff to give 60 days’ notice before filing a lawsuit. That waiting period matters because it gives the business time to:

Review the facts and test how strong the claim is
Look for settlement options that reduce risk
Consider mediation to resolve the dispute faster
Re-check whether the plaintiff truly qualifies as a consumer

In addition, how the business responds during this window can affect what damages the plaintiff can later recover. Therefore, companies should treat the notice period as a real strategy opportunity, not just paperwork.

Strong contracts can stop DTPA claims before they begin

Finally, businesses can reduce DTPA risk by writing smart contracts from the beginning. In some situations, well-written “as-is” clauses and specific waivers can block DTPA liability under Texas law. These protections work best in commercial deals where both sides have similar experience and bargaining power. Because contract language must meet strict statutory standards, businesses should draft these clauses carefully.

Protecting your business takes focused legal experience

Overall defending against DTPA allegations takes more than general legal knowledge. The law has technical rules and the damages can be huge. For that reason, businesses should work with counsel who understands DTPA requirements and knows how to use defenses like consumer status, exemptions, notice rules and contract protections. This kind of planning and defense can protect both a company’s finances and its reputation.

The “Nuclear Option”: When do I need to fire a non-performing vendor?

2026-07-24T22:36:05Z

Every business owner dreads that sinking feeling when a vendor consistently fails to deliver. You have tried patience, phone calls and stern emails — but nothing changes. At some point, you need to consider the nuclear option: terminating the contract. But the fear of being sued for wrongful termination often keeps business owners trapped in bad relationships, continuing to pay for substandard work. Understanding Texas law on material breach can free you from this paralysis.

What is a material breach?

It is important to know when a contract violation could justify walking away. This is often true when the breach is material. Under Texas law, a breach is "material" when it goes to the very heart of the agreement and defeats your purpose for entering the contract in the first place. If a vendor delivers your custom software three days late, that is likely an immaterial breach. If they deliver it six months late and it does not work at all, that is material. Courts consider several factors when determining materiality:

Whether you received the substantial benefit you bargained for
Whether the breach can be adequately compensated with money damages
Whether the breaching party acted in good faith or with willful disregard
The extent of performance already completed

These factors work together to paint a picture of whether the vendor's failure truly undermines the entire agreement. A material breach can justify walking away from the contract agreement.

What are my legal options to cure the problem?

Before you fire off that termination letter, Texas law generally requires you to give the vendor notice and an opportunity to cure the breach. This is not just good business practice — it is often a legal requirement that protects you from legal action. Although the exact process depends on the details of the situation, this is often addressed by sending a written notice that clearly identifies the breach and provides a reasonable time to fix it. Document everything. If the vendor fails to cure within the specified time, you can likely move forward with termination.

How can I exit without legal blowback?

When you have established a material breach and provided the right to cure, terminating the contract becomes significantly safer. Send a formal termination letter citing the specific breaches, your previous cure notice and the vendor's failure to remedy the situation. Cease payment only for unperformed or defective work, and be prepared to pay for any legitimate value received. The nuclear option is serious, but sometimes necessary. With guidance from an attorney with experience in this area of law you can better ensure you have proper documentation and adhere to Texas law, making it easier to exit a failing vendor relationship without becoming the defendant in a lawsuit.

Does skipping a contract notice and curing period hurt your claim?

2026-06-29T11:08:04Z

Every business contract starts with trust. You expect each side to do what they promised but then one party misses deadlines, cuts corners or stops paying and the relationship turns tense fast. At that point, a common mistake can make things worse: you take action before you follow the contract’s dispute steps.

Shaping your leverage early

Many Texas business contracts require written notice and a set cure period before you claim breach. If you skip that step, Texas courts may view it as a failure to meet a condition precedent, which can completely bar you from recovering damages or lead to your lawsuit being dismissed. The other side may argue you acted too soon and that can weaken your claim, delay recovery or reduce your settlement leverage. These clauses matter even more when work continues. For example, a vendor may still deliver goods while you dispute quality. A cure period can force you to give them time to fix issues. An escalation clause may require manager-to-manager talks before any lawsuit. Meanwhile, deadlines can cut off rights if you wait.

Send a notice and support your case

Your contract often controls what your notice must say and how you must deliver it. Delivering the wrong type of message to the wrong place can mean losing the benefit of the notice. A strong notice often includes:

The contract section you rely on and the specific problem you see
Key dates, invoices, change orders or deliverables that relate directly to the issue
The cure deadline and what you expect as a fix
A clear request for a written response and a point of contact

After you send it, keep every follow-up calm and factual so your emails read well if a judge later reviews them. This approach protects your position without inflaming the relationship.

Get options and decide if the fix works for you

Once you send notice, the other side may offer a quick patch, partial performance or a discount. Sometimes they ask for more time or propose new terms. You should measure any “fix” against your operations and cash flow. Will it prevent repeat failures or shift risk back onto you? Will it cost more in delays than it saves? If the cure fails, you gain a cleaner record that shows you gave a fair chance.

A practical next step for Texas businesses

Keep in mind that skipping notice and a chance to cure can hurt your Texas claim. It can also cost you leverage and time when you need both. So, before setting up your escalation, review the contract steps and line up your proof. With strategic counsel, you can protect your company and move forward past the dispute.

Attorneys Catherine E. Marsolan And Craig Courville Successfully Defend Client In Property Damage Claim

2026-06-22T19:17:36Z

Wright & Greenhill shareholders, Catherine E. Marsolan and Craig Courville, successfully defended a client in a recent trial in the 261st District Court of Travis County, Texas. The lawsuit arose from an incident in which the Defendant’s vehicle rolled down his driveway, striking a brick planter in front of the Plaintiffs’ house across the street. Plaintiffs’ argued that the brick of the damaged planter could not be matched and, thus, all of the brick on the house had to be replaced with something new. Plaintiffs’ later amended their demand to add sums for repairs to the interior of the house claiming that the impact with the planter somehow caused sheetrock to crack and moldings to separate inside the house. The Defense argued that the brick planter did not match the rest of the house before it was damaged, as the treatment on the brick had worn away. Further, the Defense argued that the planter could have been rebuilt, the brick could have been made to match, and that Plaintiffs’ demand that the entire house be resurfaced was unreasonable and excessive. At trial, Plaintiffs’ counsel argued that the Plaintiffs’ effort to match the brick was sufficient to establish that it could not be done, that the only way to make the Plaintiffs whole included approximately $150,000 in improvements to the house and that the Plaintiffs lost months of AirBnB rentals before they replaced the damaged planter. The Defense argued that Plaintiffs failed to meet their burden of proof on both liability and the damages questions. The Defense presented testimony from a construction expert who explained how experienced and qualified masons could match the Plaintiffs’ brick. This witness also refuted the Plaintiffs’ claims that the cracking on the interior of their renthouse was due to the impact with the planter, pointing out that there was some evidence that the Plaintiffs’ renthouse was experiencing foundation movement. After deliberating for less than three hours, the Travis County jury awarded less than 5% of the roughly $150,000 worth of damages requested by the Plaintiffs’ attorney during closing—and far less than the defense had previously offered to settle the case. The majority of Catherine and Craig’s law practice revolves around defending individuals, businesses, and their employees in lawsuits alleging claims in fields that include but are not limited to personal injury, premises liability, property damage, commercial disputes, and numerous others. Cause No. D-1-GN-22-006563; Kathleen Morton and Jason Morton v. Philip Poolok; in the 126th Judicial District, Travis County, Texas

Attorneys Craig Courville And Noelle Simon Prevailed At The Seventh Court Of Appeals

2026-06-22T19:09:57Z

Wright & Greenhill, PC attorneys Craig Courville and Noelle Simon prevailed at the Seventh Court of Appeals last month. Mr. Courville and Ms. Simon represented a Dallas company whose employee alleged that he was injured when he touched a damaged electrical wire while installing Christmas lights in 2024. Trial counsel with the Grau Law Group secured a summary judgment dismissing the Plaintiffs claims at the trial court. On Appeal, Plaintiff’s counsel argued that the trial judge erred in granting the summary judgment, that the judge who granted the summary judgment did not have the authority to do so, and that the objection to Plaintiff’s affidavit should not have been sustained in the trial court. A three-justice panel at the Seventh Court of Appeals disagreed with the Plaintiff’s arguments and affirmed the judgement of the trial court. In so doing, the Court’s Opinion agreed with all of the defense’s appellate arguments, holding that Judge Vince Sprinkle was properly assigned to preside over Tarrant County Court at Law Number 1 as a visiting judge and, thus, had authority to grant the defendant’s summary judgment. The Court of Appeals further sided with the defense holding that Plaintiff’s claims were barred by the exclusive remedy provision of the Texas Workers’ Compensation Act and that the Defendant need not satisfy the requirements of an election of remedies defense as that is not what the Defendant plead or proved. Rather, the Court found that the Defense established the necessary elements of the exclusive remedy defense on which it relied. Finally, the Court of Appeals agreed with the defense that Plaintiff’s affidavit was self-serving, was irrelevant to Plaintiff’s attempt to refute the Defendant’s exclusive remedy defense but, rather, helped establish the element of the defense actually asserted. The majority of Mr. Courville and Ms. Simon’s law practice revolves around defending individuals, companies and employers in lawsuits involving personal injury, premises liability, construction defects, and commercial disputes.

Can reputation damage be part of a Texas business lawsuit?

2026-06-01T08:07:58Z

A business dispute can affect more than your profits. In some cases, a disagreement with a business partner, competitor or vendor may also hurt your company's reputation. If customers lose trust in your business, the effects may last long after the dispute ends. In Texas, damage to your business reputation may become part of a lawsuit if another party's actions harm how people view your company. However, recovering money for that type of harm can be challenging. You often need to show more than a drop in sales or a difficult financial period.

When reputation issues may matter

Claims involving damage to a business reputation usually arise in cases that involve false statements, unfair business practices or a breach of trust. In contrast, a simple breach of contract often does not support a claim for reputation related losses because those losses can be difficult to measure. When someone harms your business reputation, you may notice effects such as:

Losing customers after false information spreads
Missing business opportunities because people question your credibility
Receiving negative attention in your industry
Getting fewer referrals from business contacts

These problems may show that the dispute affected more than your short term income.

Gathering evidence to support your claim

If you believe someone harmed your business reputation, evidence can play an important role. Courts often look for proof that connects the other party's actions to the harm your business experienced. Useful evidence may include:

Customer messages expressing concerns about your business
Financial records showing a drop in sales or business opportunities
Testimony from customers, vendors or industry contacts about your reputation
Marketing or public relations records documenting efforts to correct false information

The stronger the connection between the conduct and the harm, the easier it may be to explain your losses.

Understanding Texas law on business damages

Texas law may allow you to seek compensation in certain business disputes. However, the type of compensation available often depends on the facts of the case and the legal claims involved. Your reputation can affect customer trust, future sales and business opportunities. Because of that, courts may consider reputational harm in some situations. Still, every case is different and the outcome often depends on the available evidence.

Looking beyond immediate financial losses

Some business disputes cause harm that goes beyond a single contract or transaction. If a dispute changes how customers, vendors or others view your company, that harm may become an important part of your case. Understanding how reputation related claims work may help you better assess the full impact of a business dispute in Texas.

What constitutes a material breach of contract in Texas

2026-04-30T09:15:54Z

If you sign a contract in Texas, you expect the other party to follow through. When they don't, whether that breach is "material" determines what you can do next.

What makes a breach material

Not every contract violation gives you the right to walk away. A material breach is one that strikes at the core of the agreement. It deprives you of the benefit you bargained for. A minor breach, by contrast, may entitle you to damages but does not excuse you from your own obligations. Texas courts often look to the Restatement (Second) of Contracts to assess materiality. The key question is whether the breach defeated the purpose of the deal.

How Texas courts evaluate materiality

Courts weigh several factors when deciding whether a breach is material. These are the five most common considerations:

Deprivation of benefit: Whether the breach denied you the core value of the contract.
Compensability: Whether money damages can adequately make you whole.
Forfeiture: How much the breaching party has already invested in performance.
Likelihood of cure: Whether the breaching party can still fix the problem.
Good faith: Whether the breach was willful or the result of unfair dealing.

No single factor controls the outcome. Courts weigh all of them together based on the facts of your situation.

Common examples of material breach

Material breaches appear across many types of contracts. Some frequent examples include:

Failure to pay: A buyer refuses to pay after goods or services are delivered.
Non-performance: A contractor abandons a project before completion.
Defective work: A service provider delivers results so poor the contract's purpose fails.
Anticipatory repudiation: A party announces in advance that it will not perform.

Each of these goes to the root of the agreement rather than a side obligation.

Remedies available after a material breach

A material breach gives you more options than a minor one. You may cancel the contract entirely and pursue damages. Under Texas Civil Practice and Remedies Code § 38.001, a prevailing party in a breach of contract claim may also recover reasonable attorney's fees. That recovery can significantly affect whether litigation makes financial sense.

Talk to an attorney about your contract dispute

Material breach questions are fact-specific and often contested. An attorney can review your contract, assess the conduct at issue and help you understand what remedies may be available.

How do courts calculate damages in business fiduciary cases?

2026-04-01T05:59:57Z

Your business partner's breach of duty may be worth more than you think. Texas courts follow specific rules to determine what you can recover. Understanding how courts calculate these damages in 2026 may show whether your dispute is worth taking to court.

The actual damages framework under Texas law

Texas courts begin with actual damages, which represent the direct financial harm from the breach. Under the Texas Business Organizations Code Section 21.223, fiduciaries owe duties of care and loyalty to the businesses they serve. When these duties fail, courts review what you lost. Texas courts use two ways to measure damages. Out-of-pocket damages measure the gap between what you paid and what you got. Benefit-of-the-bargain damages measure the gap between the value the fiduciary promised and the value you actually got, even without a formal contract if deception happened.

When exemplary damages and other remedies apply

Beyond recovering what you lost, Texas law also allows punishment damages when a fiduciary acts with fraud, malice or gross negligence. Courts limit these to either $200,000 or twice your economic damages plus non-economic damages up to $750,000. You need clear and convincing evidence to win these. Texas courts may also order:

Disgorgement of profits the fiduciary gained through wrongful acts
Fee forfeiture requiring fiduciaries to return entire salaries earned during the breach period
Attorney fees in cases involving certain laws or contract terms

These remedies can greatly increase total recovery, sometimes exceeding the actual financial losses you suffered. A judge rather than a jury often decides disgorgement amounts.

The 2026 Business Court impact on high-stakes cases

If your fiduciary case involves more than $5 million at stake, it may fall under the new Texas Business Courts created by House Bill 19. Austin business owners with high-stakes disputes can now access courts that give more predictable written opinions on complex damage calculations like lost opportunity or reduced business value.

Working with experienced business litigation counsel

Calculating damages in fiduciary duty cases requires detailed financial analysis and knowledge of how Texas courts apply damage rules. An experienced business litigation attorney can evaluate your claim's strength and identify all recovery options. The gap between strategic experience and general understanding often determines whether your case results in meaningful recovery or costly disappointment.

When contract disputes evolve into deceptive trade claims

2026-03-04T08:11:26Z

A contract dispute may start with performance issues. Then the other side may raise allegations under the Texas Deceptive Trade Practices Act (DTPA). That shift may expand the issues beyond breach. It may also affect remedies and case strategy. If you operate a business in Texas, it can help to recognize when a disagreement over terms might develop into a statutory claim.

Conduct that converts a contract dispute into a deceptive trade claim

A failure to perform does not, by itself, necessarily create liability under Texas's deceptive trade law. Courts often look for conduct that goes beyond a broken promise. The focus often turns to representations made in the course of trade or commerce.

Your risk of facing a deceptive trade claim may increase when your conduct involves the following:

Making factual statements about quality, cost or capability that later appear inaccurate
Failing to disclose known information while intending to induce the deal
Describing goods or services in a way that may create a false impression
Representing that goods or services have characteristics or benefits that they may not have

The issue may shift from nonperformance to misleading conduct. Statements in proposals, sales meetings and written communications may receive close attention. The analysis often focuses on whether the other party relied on those statements when entering the transaction.

Exposure that follows a deceptive trade claim in litigation

If a claimant qualifies as a consumer under Texas law, the statute may allow remedies beyond contract damages. In some cases, a court may award additional damages if the conduct meets a higher standard. The DTPA also requires written notice before filing suit in many situations. That step may affect timing and settlement discussions.

Discovery may broaden to include marketing materials, internal communications and sales practices. This wider review may increase cost and disruption. Early evaluation of the facts and the claimant’s status can help you gauge exposure and plan your response.

Evaluating your position before the dispute expands

If your contract dispute begins to include alleged misstatements or omissions, you may consider slowing your response. Gather key communications tied to the transaction, including proposals, emails and marketing materials.

Review what you communicated and where the accounts differ. It may also help to evaluate whether the other party could qualify as a consumer under Texas law, since that issue can influence the scope of the claim.

How do business leaders breach their fiduciary duties in Texas?

2026-01-26T11:37:10Z

In Texas, business leaders may be accountable for breaching their fiduciary duties when they break their legal promise to act in their company’s best interests. These breaches have the potential to cause massive financial losses for the company. It is essential to understand how people in high-level positions can take advantage of their authority.

Common ways business leaders breach their duties

More often than not, business leaders misuse company assets and breach their duty to benefit themselves or other entities to which they may have ties. Common examples of breaches include:

Working with competitors: Competing with the company or secretly assisting a competitor in a way that conflicts with fiduciary obligations
Harmful intentions: Deliberately taking actions that harm the company
No transparency: Deliberately hiding factors that can potentially affect business decisions for personal gain
Self-dealing: Making decisions that benefit the leader, often at the expense of the company
Abusing trust: Revealing trade secrets and sharing private information only available to those in high-level positions
Misappropriating funds: Withdrawing or using company funds for personal gain

Business leaders in Texas who breach their duties may be held accountable for losses and may potentially face removal from their positions within the company. Courts can also order them to pay damages if they are proven to be guilty of misusing company assets.

What to do if you suspect a breach of duty

If you suspect that someone in the workplace is mishandling company assets, make sure to gather as much evidence as possible. Accusing someone of breaching their duty might make them upset at best, or cause them to retaliate or destroy evidence at worst. Many people consult legal professionals for situations like this to advise them on their next course of action.