pjc-oil-and-gas-2022-lib
PJC 305.3
O IL AND G AS I NDUSTRY A GREEMENTS
at 200. The Committee believes that this conditional submission satisfies the supreme court’s instruction in Mustang Pipeline to have the jury determine which party breached first and thereby excuse performance by the other party. See Mustang Pipe line Co. , 134 S.W.3d at 200. The Committee recommends that any damages submission be predicated on a “Yes” answer to Question 1 or Question 2. The damages question should not be condi tioned on the answer to Question 3, which submits the defense of prior material breach in a case where there are contentions of material breaches by the opposing party and both parties seek to recover for breach of contract. National City Bank of Indiana v. Ortiz , 401 S.W.3d 867, 883 n.11 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). For an instruction on materiality, see PJC 305.17.
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