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Dimitry K., Esq.
Dimitry K., Esq., Attorney
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Experience:  Run my own successful business/contract law practice.
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I have been sued by a company that I felt breached a contract

Customer Question

I have been sued by a company that I felt breached a contract and engaged in unethical business practices. I am drafting an answer the to suit, but since I have not money I have to draft it Pro-Se. They are alleging that I breached the contract because I returned the leased equipment when they failed to provide like equipment in accordance with the lease, and they quoted me one then and then provided me with something completely different. I had a meeting with their company president after I ended the lease, and he stated that what I was quoted and what the contract was set up for was not the same. To me it looks like I got the old bait and switch. I want to counterclaim against them to get my deposit back and to end their lawsuit. Can anyone point to any case law, or Texas Code (Dallas County) that might help me draft this answer.

Thanks
Submitted: 1 year ago.
Category: Business Law
Expert:  Dimitry K., Esq. replied 1 year ago.
Thank you for your question. Please permit me to assist you with your concerns.

If I may ask, are you looking for a template or actual code for what you can file suit? I am assuming you are claiming bad faith breach, fraud, and misrepresentation. Correct?
Customer: replied 1 year ago.

I am claiming fraud or negligent misrepresentation of the lease agreement. The quoted me one thing, and then I found out after the fact that the lease agreement was not I agreed to from the quote. Also the lease agreement stated that if the equipment broke down, or was otherwise out of service, they would provide like equipment during the down time, which they failed to do.


 


I have a standard template for Answer and counter claim, I am just having some issues locating case law or Texas codes that will give me more information and facts to present to the court when I go to court.


 


The amount is under $10,000 and they are siting Rule 190.2 Level 1 for discovery.

Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up, Will.

By citing Rule 190.2, they are claiming that the plaintiffs plead that they are seeking monetary relief under $50,000 (not including costs and attorney fees). In this situation each party is limited to up to 6 hours for all oral depositions although the parties can expand it up to 10 hours. Also, both parties are limited up to 25 interrogatories, not including requests to certify or identify certain documents. Discovery is also limited to 30 days. This is done to save costs for both parties and not get discovery get out of hand.

As for case-law, look to Valero Mktg. & Supply Co. v. Kalama Int’l, L.L.C., 51 S.W.3d 345, 351 (Tex. App.—Houston [1st Dist.] 2001, no pet.). & Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S. W.3d 631, 636 (Tex. App.--Houston [1st Dist.] 2002, pet. denied). Both define a breach of contract as (1) the existance of a valid contract between the plaintiff and defendant, (2) the plaintiff's performance or tender of performance, (3) the defendant's breach of the contract, and (4) the plaintiff's damage as a result of the breach.

For misrepresentation look to Stone v. Lawyers Title Insurance, 554 S.W.2d 183, 185 (Tex. 1977)

The elements of a cause of action for fraud by misrepresentation are
(1) A material representation was made to a person;
(2) The material representation was false;


(3) When the material representation was made;
(4) The speaker

(i) knew that the material representation was false, or
(ii) made the material representation recklessly without any knowledge of its truth and as a positive assertion;
(5) The speaker made the material representation with the intent that it should be acted upon by the person to whom the speaker made the representation;
(6) The person to whom the material representation was made acted in reliance upon the representation; and
(7) The person to whom the material representation was made suffered injury or damage.






Customer: replied 1 year ago.

Thank you for the case law, however all these site the Plaintiff as the party that alleges the breach of contract. In my case the plaintiff alleges that I breached the contract, however I can show that they breached the contract, are there any cases where a counter claim for breach is used that you are aware of?

Customer: replied 1 year ago.

Dimitry,


 


I think you information was good, but it doesn't fit what I need. I don't want to rate you with poor, or bad. Please review my previous posting and submit a reply or update so I can give you a rating....


 



thanks

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Dimitry K., Esq.
Dimitry K., Esq.
Attorney at Law
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Run my own successful business/contract law practice.