PJC Business 2024

PJC 115.4

D AMAGES

for accountant, recoverable as direct damages for breach of agreement to provide accounting services). Benefit of the bargain and remedial damages. The general rule for measuring benefit of the bargain damages is to calculate the difference between what was prom ised and what was received. MSW Corpus Christi Landfill, Ltd. v. Gulley-Hurst, L.L.C. , 664 S.W.3d 102, 106 (Tex. 2023) (discussing seller’s damages for buyer’s breach of contract to buy real estate when property has increased in value). In the con struction context, “cost of repair is the appropriate measure of damages to remedy an omitted item on a substantially-completed building.” Ashford Partners, Ltd. v. ECO Resources, Inc. , 401 S.W.3d 35, 39–40 (Tex. 2012) (additionally noting that “[o]n the other hand, a difference-in-value measure of damages may apply when the contractor has failed to substantially comply with the contract or when repairs will impair the structure or materially damage it”). One court addressing a case in which the construc tion contract was not substantially performed noted that “whether the remedial cost or the difference in value is the proper measure of damages” would be determined by the particular “facts and circumstances in each case.” Fidelity & Deposit Co. of Maryland v. Stool , 607 S.W.2d 17, 21 (Tex. App.—Tyler 1980, no writ). Loss of contractual profit. Lost profits from collateral contracts are generally classified as consequential damages. See PJC 115.5. Profits lost from the actual con tract in question, however, are direct damages for the seller. AZZ Inc. v. Morgan , 462 S.W.3d 284, 289 (Tex. App.—Fort Worth 2015, no pet.). Lost profit plus capital expenditures. If the plaintiff has incurred expenses in preparation or performance and reasonably expected to recoup that investment as well as make a profit, this lost profit plus capital expenditures may be an appropriate mea sure of damages. Houston Chronicle Publishing Co. v. McNair Trucklease, Inc. , 519 S.W.2d 924, 929 (Tex. App.—Houston [1st Dist.] 1975, writ ref’d n.r.e.). Reliance damages. The plaintiff may elect to recover expenditures made in preparation or performance instead of claiming lost benefit of the bargain or profit damages. If the plaintiff makes this election because he would have lost money had the contract been completed and the defendant proves the amount of loss avoided as a result of the breach, the jury should also be instructed to deduct those prospective losses from the reliance damages. Mistletoe Express Service v. Locke , 762 S.W.2d 637, 638–39 (Tex. App.—Texarkana 1988, no writ). Mitigation damages. Although normally raised defensively, the reasonable expenses of mitigating an economic loss are recoverable as actual damages. Hycel, Inc. v. Wittstruck , 690 S.W.2d 914, 924 (Tex. App.—Waco 1985, writ dism’d). Incidental damages. A variety of expenditures and other incidental damages may be recoverable as direct damages, depending on the particular facts and circum stances of each case. See, e.g., LaChance v. Hollenbeck , 695 S.W.2d 618, 621–22 (Tex. App.—Austin 1985, writ ref’d n.r.e.) (improvements to real property); Anderson

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