Hazlewood cites three cases in support of his excused performance argument. In L. H. Land Painting Co., Inc. v. S & P Const., Inc., 516 S.W.2d 14 (Tex.Civ.App.--Fort Worth 1974, pet. dism'd), a plaintiff contractor sued a subcontractor for a breach of warranty committed when the subcontractor failed and refused to correct defects in a façade it built. The subcontractor raised the defense that he was engaged in repairing and replacing the defects in the façade when he received word to cease work and was never thereafter instructed to continue work.

Hazlewood cites three cases in support of his excused performance argument. In L.H. Land Painting Co., Inc. v. S & P Const., Inc., 516 S.W.2d 14 (Tex.Civ.App.-Fort Worth 1974, pet. dism'd), a plaintiff contractor sued a subcontractor for a breach of warranty committed when the subcontractor failed and refused to correct defects in a facade it built. The subcontractor raised the defense that he was engaged in repairing and replacing the defects in the façade when he received word to cease work and was never thereafter instructed to continue work.

Texas law excuses a party's performance under a contract when the other party's breach prevents its performance. See, e.g., Transverse, L.L.C. v. Iowa Wireless Servs., L.L.C., 617 Fed.Appx. 272, 277 (5th Cir.2015);L.H. Land Painting Co. v. S & P Constr., Inc., 516 S.W.2d 14, 16 (Tex.Civ.App.—Fort Worth 1974, writ dism'd). Texas courts have held that an owner may not ignore defects recognized by a contractor, but must cooperate to modify the contract when necessary.

Wallace introduced evidence that it was Flintco that first breached the subcontract by requiring Wallace to perform work for which he was not paid. Wallace also offered evidence of numerous acts and omissions by Flintco that Wallace relied upon for proof of Flintco's active interference with Wallace's performance. Under Texas law, if one party to a contract breaches, there is no obligation for the non-breaching party to continue performance. See O'Shea v. International Bus. Machs. Corp., 578 S.W.2d 844, 846 (Tex.Civ.App.-Houston [1st Dist.] 1979, writ ref'd n.r.e.) ("As a general rule, performance is excused when a party to a contract prevents the other party from performing."); L. H. Land Painting Co., Inc. v. S P Constr., Inc., 516 S.W.2d 14, 16 (Tex.Civ.App.-Fort Worth 1974, writ dism'd) ("The law is that if one party to a contract is prevented by the acts of the other party to the contract from performing such contract, then the party so prevented from performing is excused from further performance of the contract."); see also D.E.W., Inc. v. Depco Forms, Inc., 827 S.W.2d 379, 382 (Tex.App. — San Antonio 1992, no writ) ("[A] party who is in default or breach cannot maintain a suit for breach of contract."). Given that there is some evidence of record that Flintco first breached the subcontract, there is no plain error associated with the jury verdict against Flintco on its claim that Wallace breached the contract.

By its action it prevented Monkey Grip from performing its obligation to purchase the equipment. See L. H. Land Painting Co. v. S P Construction, Inc., 516 S.W.2d 14, 16 (Tex.Civ.App. 1974); Atomic Fuel Extraction Corp. v. Slick's Estate, 386 S.W.2d 180, 186 (Tex.Civ.App. 1964), writ ref. n. r. e., 403 S.W.2d 784 (Tex.Sup.Ct. 1965); 5 Williston on Contracts (3rd ed. 1961) SS 670, 677, 677A. National counters that although Monkey Grip requested the schedules, it never notified National that it did not possess completed copies of the documents which were needed in order to calculate the contract purchase price. At the trial there was substantial evidence by several witnesses as to "usage and custom" and testimony by the official of Baker-Thompson Company who negotiated the lease with Monkey Grip as to the discussion of the parties at that time.

Stegman v. Chavers, 704 S.W.2d 793, 795 (Tex.App. — Dallas 1985, no writ), overruled on other grounds by Qantel Business Systems, Inc. v. Custom Controls Company, 761 S.W.2d 302 (Tex. 1988); Landrum v. Devenport, 616 S.W.2d 359, 361 (Tex.Civ.App.-Texarkana 1981, no writ). Once Falk establishes each of those elements, Axiam may defeat the breach of contract claim if it can prove that Falk prevented its performance under the contract. Atkinson Gas Company v. Albrecht, 878 S.W.2d 236, 239 (Tex.App.-Corpus Christi 1994, error denied) ("As a general rule, performance is excused when a party to a contract prevents the other party from performing and thereby repudiates the contract"); O'Shea v. International Business Machines Corp., 578 S.W.2d 844, 846 (Tex.Civ.App.-Houston [1st Dist. 1979, error ref'd n.r.e.) ("As a general rule, performance is excused when a party to a contract prevents the other party from performing"); L.H. Land Painting Co. Inc. v. S P Construction, Inc., 516 S.W.2d 14, 16 (Tex.Civ.App. — Ft. Worth 1974, writ dismissed) ("The law is that if one party to a contract is prevented by the acts of the other party to the contract from performing such contract, then the party so prevented from performing is excused from further performance of the contract"). After reviewing the summary judgment evidence before the Court, the Court concludes that Falk has met her burden of establishing the existence of a valid contract, performance on her part, and breach of the contract on the part of Defendant Axiam. Axiam, however, has not met its burden on its affirmative defense because it has not established that either Falk or Datong prevented it from performing under the contract.

His failure to perform under those circumstances cannot be made the basis of an action for damages for a breach of the contract.L. H. Land Painting Co. v. S P Constr., Inc., 516 S.W.2d 14, 16 (Tex.Civ.App.-Fort Worth 1974, writ dism'd); see also Dorsett v. Cross, 106 S.W.3d 213, 217 (Tex.App.-Houston [1st Dist.] 2003, pet. denied) ("Prevention of performance by one party excuses performance by the other party, both of conditions precedent to performance and of promise."); Atkinson Gas Co. v. Albrecht, 878 S.W.2d 236, 239 (Tex.App.-Corpus Christi 1994, writ denied). Accordingly, we will review whether legally and factually sufficient evidence supported the jury's finding that appellants prevented or materially hindered Shrum from fulfilling his duties under the contract without factoring in the wrongfulness of appellants' conduct.

It is well settled that a trial court cannot disregard the jury's answer to a special issue merely because the evidence is factually insufficient to support the answer. L.H. Land Painting Co., Inc. v. S P Construction, Inc., 516 S.W.2d 14, 16 (Tex.Civ.App. — Fort Worth 1974, writ dism'd); Nash v. Roden, 415 S.W.2d 251, 255 (Tex.Civ.App. — Austin 1967, writ ref'd n.r.e.); Garza v. Alviar, 395 S.W.2d 821, 824 (Tex. 1965). The question before us then, is whether there is any evidence "reasonably tending to prove, either directly or indirectly," the fact which the jury found.