equitable defenses to breach of contract

Estoppel prevents one party who has induced another to act in a particular way from adopting an inconsistent position, attitude, or course of conduct that will cause loss or injury to the other person. Id. Civ. App.Houston [14th Dist.] Login. v. McCarty, 165 S.W.3d 351, 353 (Tex. . There are a number of defenses available to argue that a contract should not be enforced: Lack of formation. The doctrine of estoppel, including quasi-estoppel, is designed to protect the innocent; thus, a party may not urge this defense as a shield against its own tortious acts. 490, 341 S.W.2d 892 (1960). App.San Antonio 1991, writ denied). Performance of the contract has become impossible or the purpose of the contract has become frustrated. Fort Worth 2011, no pet.). Double Secret Probation! App.Dallas 1992, writ denied). BREACH OF CONTRACT Generally, the elements of a cause of action for breach of contract are: The formation of a contract between the plaintiff and the defendant. But if the plaintiff takes too long to file their lawsuit, a defendant may be able to assert an equitable defense known as laches. 2002, orig. This is calledaccord and satisfaction. This means that the parties are discharged from the contract, because they have already fulfilled their legal duties under it. Exercise 4 These types of contracts include: The majority of contracts are governed by state statutes. Performance of the contract has become impossible or the purpose of the contract has become frustrated. The court of appeals affirmed the application of the trustees affirmative defense of quasi-estoppel based on the beneficiarys prior consent to trust investments in other real estate investments: The affirmative defense of quasi-estoppel precludes a party from asserting, to anothers disadvantage, a right inconsistent with a position she has previously taken. Curtis v. Pipelife Corp., 370 S.W.2d 764, 768 (Tex. A party may evidence waiver by conduct of such a nature as to mislead the opposite party into an honest belief that the waiver was intended or assented to. Laches is an equitable defense that a party can assert when a non-breaching party takes an unreasonably long amount of time to file a suit for relief. New Antidumping and Countervailing Duty Petition on Non-Refillable Steel Cylinders I-9 Verification and Compliance: Navigating New Nuances Post-COVID, Foreign Sponsors Breaking Into The Us Renewables Market: Challenges And Solutions, Labor and Employment Update for Employers May 2023, Global Mobility Opportunities And Challenges: How To Navigate A Global Workforce. C. Recent Case Using Quasi-Estoppel To Dismiss Claims Against A Trustee. 07-17-00457-CV, 2019 Tex. denied). App. Thus, to find waiver through a partys conduct, intent must be clearly demonstrated by the surrounding facts and circumstances. Breach of Contract Cases. What Are Valid Defenses Against a Breach of Contract Claim? Sandi Samms v. Autumn Run Cmty. There is a number of common affirmative and equitable defenses that must be pleaded when you answer a complaint. Id. At the core of these equitable defenses is the concept that a party should not be allowed to act inconsistently: have knowledge of conduct and fail to object to it for a period of time (thereby tacitly agreeing to the conduct) and then later raising claims against the trustee for the same conduct. Further, waiver is largely a question of intent. App.Dallas Jun. 524, 525 (Tex. Co. v. State, 1 S.W.3d 264, 266 (Tex. Laches applied to bar such a claim. Example: The contract states that in the event of a minor breach, the damages will be $100 regardless of the actual loss. This is why seeking the help of an experienced contract attorney in your state is so important. in Spanish, both from Auburn University. Where a party affirms a contract through his actions and conduct after knowledge of the facts, the defense of waiver or ratification is established as a matter of law. where the tortious conduct leaves the innocent party with no real choice but to act in a manner consistent with the tortious conduct, the innocent partys actions do not constitute ratification of the tortious conduct. Instead, the focus is on what prejudice and harm someone suffers as a result of a delay, and is much more case and fact specific. Lloyds, 235 S.W.3d 863, 865 (Tex. Equitable Remedies for Contract Actions: Texas To obtain a permanent injunction under the common law in Texas, the applicant typically must plead and prove: The existence of a wrongful act. Id. Childress v. Cook, 245 F.2d 798 (5th Cir. Beneficiaries may argue that they were compelled to accept the trustees improper conduct and that their acceptance was not voluntary. The elements of ratification are: (1)approval by act, word, or conduct; (2)with full knowledge of the facts of the earlier act, and (3)with the intention of giving validity to the earlier act. Vessels, 823 S.W.2d at 762. Search manuals and training by topics such as DWI. The plaintiffs had agreed to be bound by the terms of a mineral lease following the settlement of a lawsuit with the FDIC. 303. . Steubner Realty 19, 817 S.W.2d at 164. Co. v. Benton, 728 S.W.2d 35, 37 (Tex. Present Frank agrees to accept a radio worth $50 in exchange for discharging the debt. (The doctrine applies against a litigant whose own conduct in connection with the same matter or transaction has been unconscientious, unjust, marked by a want of good faith, or violates the principles of equity and righteous dealing.). Childress v. Cook, 245 F.2d 798 (5th Cir. We've helped more than 6 million clients find the right lawyer for free. Judicial Council of California Civil Jury Instructions (2022 edition) Download PDF. (citingLoggins v. Gates, 301 S.W.2d 525, 527 (Tex. Example: A party to the contract is 16 years old or is mentally incompetent. denied). Co., 140 Tex. App.Waco 1981, writ dismd) (petitioners affidavit created fact issue on whether she accepted the benefits due to financial need and duress precluding summary judgment on estoppel). Law, Products App.Houston [1st Dist.] App.Dallas 2002, pet. App. Id. App. Contracts are agreements between two or more private parties which create mutual legal obligations. 2000) (quoting Kennedy v. Bender, 104 Tex. For instance, a certain finishing material may become unavailable, forcing the owner and contractor to agree on a backup preference. The elements of waiver include the following: (1) existing right, benefit, or advantage; (2) actual or constructive knowledge of its existence; and (3) an actual intent to relinquish the right inferable from the conduct. Civ. If one party fails to perform their duties under the contract as they agreed to do, they may be held legally responsible for a breach of contract. It is therefore important for individuals to review local laws if a contract issue arises. There are very few hard-and-fast rules in fiduciary litigation, and there is a lot of gray area. Defenses which may be available to equitable remedies include: If a non-breaching party seeks either monetary damages or equitable relief, it is important to ensure that none of the violations above apply to the partys actions during the contractual process. Civ. & Mort. Also, the beneficiaries may also argue other theories prevent the use of the equitable defenses. NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us. Specifically: The same evidence that created a fact issue as to [the husbands] extrinsic fraud precludes a finding that [he] conclusively proved his affirmative defense of estoppel, whether couched in terms of judicial or quasi-estoppel. Van Indep. It is not uncommon for beneficiaries to sue a trustee for actions that the beneficiaries had knowledge of but where they failed to object to that conduct for a period of time. 1996); Bass & Co. v. Dalsan Props.Abilene, 885 S.W.2d 572, 577 (Tex. One who retains benefits under a transaction cannot avoid its obligations and is estopped to take an inconsistent position. 20, 2019, pet. However, the wife submitted evidence that she was led into the agreement by the husbands fraud and threats. 1996);Bass & Co. v. Dalsan Props.Abilene, 885 S.W.2d 572, 577 (Tex. Defense of Unenforceability 3. The parties have accepted the contract performance, or a substitution for the performance, as adequate. Champlin Oil & Refining Co. v. Chastain, 403 S.W.2d 376 (Tex. In 2007, the trustee of four trusts invited his mother, the primary beneficiary, and his siblings, also beneficiaries, to participate in a real estate investment that he created by allowing the use of trust funds. 412, 252 S.W.2d 929 (1952). Dist. Culver v. Pickens, 176 SW2d 167 (Tex. For example, inVessels, the court overturned summary judgment on the defendants defense of ratification. App.Houston [14th Dist.] where the tortious conduct leaves the innocent party with no real choice but to act in a manner consistent with the tortious conduct, the innocent partys actions do not constitute ratification of the tortious conduct. App.Fort Worth 1977, writ dism.). Jennifer joined LegalMatch in 2020 as a Legal Writer. If a delay would inhibit the breaching partys ability to mount a proper defense that would have been available, then a judge may use laches to stop such performance. A Q&A guide to common defenses to contract claims under Pennsylvania common law. See also Herider Farms-El Paso, Inc. v. Criswell,519 S.W.2d 473, 477-78(Tex. 1969)). Furthermore, the acceptance of benefits of an agreement or contract cannot, as a matter of law, preclude a party from challenging the agreement if the party was led into the agreement by virtue of fraud or similar misconduct. App.Dallas 1993, writ denied) (ratification). Specifically, the court considered the defendants argument that the trustee was precluded from recovery under the defense of equitable estoppel, and held that it could not conclude, that as a matter of law, [the defendants] came to the table with clean hands and [were] entitled to raise the equitable defense of quasi-estoppel.Id. (mem. There are very few hard-and-fast rules in fiduciary litigation, and there is a lot of gray area. App.San Antonio 1991, writ denied). Defenses to Breach of Employment Contract, Real Estate Contracts: Exclusive Right to Sell. 05-07-00079-CV, 2008 Tex. K.B. This constitutes an equitable defense, which prevents the non-breaching party from receiving equitable relief. Law, Intellectual Waiver is defined as an intentional relinquishment of a known right or intentional conduct inconsistent with claiming such right. Sch. Depending on the case at hand, the unclean hands defense can be either an equitable defense or an affirmative defense. A party may evidence waiver by conduct of such a nature as to mislead the opposite party into an honest belief that the waiver was intended or assented to. Remedies The remedies available to someone who has relied on a promise to their detriment are equitable. There are many different defenses to a breach of contract action - reasons why you were not able to do what you were supposed to do under the contract, or why there never was a contract in the first place. Civ. One (or both) of the parties lacked capacity to make the contract. Champlin Oil & Refining Co. v. Chastain, 403 S.W.2d 376 (Tex. LEXIS 8586, at *45 (Tex. A breach of contract occurs when a party fails to fulfill their obligations under the contract. In order to prove the intent required for ratification, a party must show that the opposing party, after obtaining knowledge of the facts of the transaction, either (1)continued to accept benefits under the transaction or (2)conducted himself so as to recognize the transaction as binding. United States: SEC Staff Finds Safeguarding Policies and Procedures Lacking at Court Reversed the Appointment of a Successor Independent Administrator of an French Insider Episode 21: Between Warring Giants: How European Companies Can What Appellate Courts Are Missing About PAGA Standing After Viking River Cruises. What Is the Proper Court for a Breach of Contract Lawsuit? A Q&A guide to common defenses to contract claims under California common law. denied). LEXIS 1665 (Tex. There are numerous options which may be available to the non-breaching party to compensate them for their losses. Mistake. Breach of Contract - Essential Factual Elements. Later, a beneficiary is in conflict with the trustee and then, for the first time, alleges that the trustee has breached its duties by overcompensating itself. App.Houston [14th Dist.] Steubner Realty 19, 817 S.W.2d at 164. Gulbenkian v. Penn, 151 Tex. Estate App.Fort Worth 1999, pet. App.Houston [14th Dist.] There are certain types of contracts which fall under the Statute of Frauds and will not be enforced unless they are in writing. . proceeding). However, there may be other facts and circumstances that may justify a beneficiary in waiting to complain and that may defend against a trustee using equitable defenses. Law, About Bldg. However, it was the defendants tortious conduct which placed the plaintiffs in a position of either having to accept the lease or else lose the property. NLRB Propounds Expansive List of Potential U.S. Executive Branch Update April 28, 2023, Compliance Update Insights and Highlights April 2023, Early 2023 Delaware Corporate and M&A Law Review. Equitable theories, such as estoppel, waiver, and ratification, are subject to traditional equitable defenses. Get started here with training and educational resources. All transactions except Bighorn were successful and the Trust benefitted from those prior investments. App.Waco 1953, writ dismd). Beneficiaries may argue that the trustee has acted with unclean hands and therefore may not take advantage of equitable defenses. at 765. App.Dallas 2011, pet. 149, 135 S.W. See also DeCluitt v. DeCluitt, 613 S.W.2d 777, 781 (Tex. Law, Products (implicitly holding that, by selling his business, plaintiff did not ratifythe tortious conduct that put him in the position of having to sell it). The contract contains a unilateral mistake that was material to the agreement and the other party knew or should have known of the mistake. 432 S.W.2d at 746. In this circumstance, the trustee may want to raise certain equitable defenses to those claims, such as laches, ratification, waiver, and estoppel. Equitable defenses are appropriate for breach of fiduciary duty claims as fiduciary relationships originate in equity. Specifically, the court found [i]n this case, by agreeing to be bound by the lease, [plaintiffs] did not ratify the tortious conduct that cause them to have to accept the lease or else lose the property. A. denied). The trustee may inadvertently use its standard formula for compensation, which was technically too much and over the amount allowed under the trust document. Any retention of the beneficial part of the transaction affirms the contract and bars an action for rescission as a matter of law. Like all equitable claims and defenses, these defenses largely depend on the facts and circumstances of the case. 1987). App.Houston [1st Dist.] But if the plaintiff takes too long to file their lawsuit, a defendant may be able to assert an equitable defense known as laches. After a bench trial, the court rendered judgment approving the trust accounting, approving the trustees administration, and holding that the trustee, individually and in his capacity of trustee, was completely discharged and relieved of all duties and was fully and completely released and discharged from any and all claims, duties, causes of action or liabilities (including taxes of any kind) relating to any and all actions or omissions in connection with his administration of the DPH Trust.Id. Ins. In re EGL Eagle Global Logistics, LP, 89 S.W.3d 761, 766 (Tex. This is further complicated by the fact that each state has its own laws which govern contract breaches and may define contract terms in different ways. The Beneficiaries may argue that they did not know all of the material facts to make an informed decision in accepting the trustees conduct and/or they were misled by untrue statements by the trustee. You will need to prove that the contract should have been in writing and that it was not in writing. There are, however, some situations in which money alone will not properly compensate the non-breaching party. In the broad body of laws called contract law, there are, in general, four types of defenses which may be used against a claim of a breach of contract, including: Anticipatory repudiation; Defense by waiver; Tortious interference; and Unclean hands. Id. The most common defenses to enforcement of a contract or liability for damages are: Enforcement of the contract would violate public policy. Specifically, the court found [i]n this case, by agreeing to be bound by the lease, [plaintiffs] did not ratify the tortious conduct that cause them to have to accept the lease or else lose the property. Id. Please provide a valid Zip Code or City and choose a category, Please select a city from the list and choose a category. Beneficiaries should not generally be allowed to lay behind the log, have knowledge of a trustees conduct, not object to such conduct for a period of time, and then later complain in litigation of that conduct. David is the primary authorof theTexas Fiduciary Litigatorblog, which reports on legal cases and issues impacting the fiduciary field in Texas. The project failed, and the trusts lost the $2.1 million. Can the trustee point to the quarterly statements and argue that the beneficiary is not allowed to complain about the overcompensation by waiting to challenge it and by allowing the trustee to continue to do work without objection? Lloyds,235 S.W.3d 863, 865 (Tex. When Frank changes his mind and sues for the additional $50.00, the Court will not enforce the original contract because Frank has accepted the radio as performance of the contract. As a result, the breaching party suffers some type of harm or prejudice (usually economic or legal). Example: Blue Company refuses to sell to Red Company, so Red Company sends Pink Company to buy goods from Blue Company and turn them over to Red Company. The unclean hands doctrine is an equitable defense to a breach of contract claim. The contract contains a mutual mistake, stating something different from what either party intended. );In re EGL, 89 S.W.3d at 766;Texas Enters., Inc. v. Arnold Oil Co., 59 S.W.3d 244, 249 (Tex. App.Houston [1st Dist.] Institute of Public Law. When Is a Contract Considered Void or Voidable? App. At the core of these equitable defenses is the concept that a party should not be allowed to act inconsistently: have knowledge of conduct and fail to object to it for a period of time (thereby tacitly agreeing to the conduct) and then later raising claims against the trustee for the same conduct. Dist. Civ. Like all equitable claims and defenses, these defenses largely depend on the facts and circumstances of the case. Search manuals and training for your court. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys or other professionals or organizations who include content on the National Law Review website. Required Evidence for a Breach of Contract Lawsuit When the promise is fulfilled, then the contract terms have been satisfied. The Texas Supreme Court stated: [A]cts done in affirmance of the contract can amount to a waiver of the fraud only where they are done with full knowledge of the fraud and of all material facts, and with the intention, clearly manifested, of abiding by the contract and waiving all right to recover for the deception. Defense of Lack of Consideration 4. denied). (This may not be the same place you live). at 356. at 356. . at 765. Beneficiaries may argue that the trustee has acted with unclean hands and therefore may not take advantage of equitable defenses. (Credit: succo/ pixabay/ License: CC0) Traditionally, the elements of a breach of contract action are (1) contract formation; (2) plaintiff performance; (3) breach by the defendant; and (4) damages. your case. Sometimes, the application or inapplication of equitable defenses can be proven as a matter of law by a judge; but more often, these defenses will have be resolved by a fact finder (by a judge, or if requested, by a jury). App.Dallas 1976, writ refd n.r.e.). App.San Antonio 2001, no pet. Copyright 1999-2023 LegalMatch. & The defense involves a new contract, either express or implied, in which the existing obligation is released by agreement of the parties through means of [a] lesser payment tendered and accepted. Richardson v. Allstate Tex. 2008); Tenneco Inc. v. Enter. At the core of these equitable defenses is the concept that a party should not be allowed to act inconsistently: have knowledge of conduct and fail to object to it for a period of time (thereby. Slowing the Spread of Litigation: An Update on First Circuit COVID-19 Has Your Business Attorney Met Your Estate Planning Attorney? App.Amarillo 1991, no writ). The trustee, however, has disclosed the actual compensation it paid itself on quarterly statements. The plaintiff failed to perform a required condition precedent or the condition precedent is an event and the event did not occur. App.Amarillo 1968, no writ). v. Further, waiver is largely a question of intent. USTR Releases 2023 Special 301 Report on Intellectual Property Washington Signs Into Law an Act for Consumer Health Data Privacy: Dont Look Twice, Its Alright The FCC Pulls Back the Curtain on Trending in Telehealth: April 18 24, 2023. Law, Insurance proceeding). App.Texarkana 1992, writ denied). Your Legal issues surrounding contract formation, enforcement, and failures can have a huge economic impact on all parties involved. Breach of Contract, Next: LEXIS 4048, 2008 WL 2266133, at *5 (Tex. To embed, copy and paste the code into your website or blog: Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra: [Ongoing] Read Latest COVID-19 Guidance, All Aspects, [Hot Topic] Environmental, Social & Governance. LEXIS 2209, at *8 (Tex. Most states have a three or four year statute of limitations for contract claims, with the potential to extend it up to 15 years depending on certain circumstances. A defense of unclean hands can be used in any legal proceeding, although it is typically used in cases where one party feels they have been wronged and seeks to enforce a contract or seek fair and equitable remedies. No. Accord and satisfaction can apply to torts as well as breach of contract claims. See Vessels v. Anschutz Corp., 823 S.W.2d 762, 765 (Tex. Defenses to breach of contract are legal excuses or reasons given by a sued party, accused of breaching a contract, stating why the suing party shouldn't win the lawsuit.3 min read 1. . Accord and satisfaction is a settlement of an unliquidated debt. The court held that no one has the right to remain inactive when action is demanded while another party so changes his position that great damage will be inflicted by granting the remedial writ. Co., 140 Tex. He is admitted to practice law before the State Bar of California, and the United States District Court for the Northern District of California. In other words, a party may not accept the benefits of a transaction and then later take an inconsistent position to avoid corresponding obligations or effects. Lindley v. McKnight, 349 S.W.3d 113, 131 (Tex. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional. Stimpson v. Plano ISD, 743 S.W.2d 944, 946 (Tex. your case, Breach of Contract Defenses: Unclean Hands, Breaching vs. Non-Breaching Parties in a Contract, Limitation of Liability Clauses in Construction Contracts, Homeowner Liability - Contractors versus Employees, Business Licenses for Independent Contractors, State Statute of Limitations for a Breach of Contract Action, Employer Liability for Wage Violations of Subcontractors, Tax Requirements for Independent Contractors, Statutory Damages in Breach of Contract Cases, Attorney's Fees in Breach of Contract Cases. However, sitting back and not doing anything for . App.Dallas 1976, writ refd n.r.e.). For example, a beneficiary may claim that the trustee has compensated itself too much. App.Dallas 1991, no writ). It includes common defenses to contract formation, contract performance, the plaintiff's ability to bring the lawsuit, and damages. N.B., 811 S.W.2d 634, 638 (Tex. For example, if a key witness is sick or elderly, then the plaintiff may try to wait until the person passes to begin legal procedures. App.Dallas 2011, pet. The Beneficiaries may argue that they did not know all of the material facts to make an informed decision in accepting the trustees conduct and/or they were misled by untrue statements by the trustee. Property Law, Personal Injury In general, there are two types of remedies that a party can receive for breach of contract: legal remedies or equitable remedies. Domestic Violence Training for Frontline Court Staff, National Law Review, Volume X, Number 342, Public Services, Infrastructure, Transportation. Under this defense, the person or entity being accused of a breach of contract argues that the other party is not entitled to a remedy under Florida. 16 people have successfully posted their cases, 5 people have successfully posted their cases, 10 people have successfully posted their cases, 6 people have successfully posted their cases, 20 people have successfully posted their cases, 7 people have successfully posted their cases, 9 people have successfully posted their cases. For example, if X forces Y to agree to sell their car for $50.00 or else they will fire Ys wife, a court will say that X cannot force specific performance due to the threat; Illegality. LegalMatch Call You Recently? Dunnagan v. Watson, 204 S.W.3d 30, 41 (Tex. Answers to questions can be compared across many jurisdictions (see Breach of Contract Defenses: State Q&A Tool). Fort Worth 2011, no pet.). Steubner Realty 19 v. Cravens Road 88, 817 S.W.2d 160, 164 (Tex. InGoughnour v. Patterson, a beneficiary sued a trustee based on a failed real estate investment. denied). (Compl. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor. The clean-hands doctrine is [t]he principle that a party cannot seek equitable relief or assert an equitable defense if that party had violated an equitable principle, such as good faith. Sometimes, the application or inapplication of equitable defenses can be proven as a matter of law by a judge; but more often, these defenses will have be resolved by a fact finder (by a judge, or if requested, by a jury). K.B. App.Dallas 1994, writ dismd) (citing Frazier v. Wynn, 472 S.W.2d 750, 753 (Tex. App. App.Austin 1995, no writ) (estoppel);Pickett v. Heygood, Orr & Reyes, L.L.P., No. Did Where a party affirms a contract through his actions and conduct after knowledge of the facts, the defense of waiver or ratification is established as a matter of law. . Shaver v. Schuster, 815 S.W.2d 818 (Tex. Where one partys tortious conduct has placed the other party in a position of forced conducti.e. The majority of breach of contract lawsuits seek monetary damages. Laches deals with time as well, but of course does not have a set in stone deadline like a statute of limitation does. Law, Intellectual The court therefore concluded the husband was not entitled to summary judgment on his affirmative defense of estoppel, whether couched in terms of judicial or quasi-estoppel. Present The most commonly awarded equitable remedies include: As in the majority of civil lawsuits, there are several possible defenses which may apply to a lawsuit which is seeking an equitable remedy. United States: SEC Staff Finds Safeguarding Policies and Procedures Value Billing and Its Importance for Law Firms, SEC Steps up Oversight of Crypto Exchanges. However, it was the defendants tortious conduct which placed the plaintiffs in a position of either having to accept the lease or else lose the property. If one party violates a contract, the other party will likely suffer economic losses. For example, inBank of Am., N.A. See Vessels v. Anschutz Corp., 823 S.W.2d 762, 765 (Tex. Further, the doctrine of waiver is applicable to all rights and privileges to which a person is legally entitled. Legal issues may quickly become complex and overwhelming, and contract issues are no exception. App.El Paso 1975, writ refd n.r.e.) Winstead PC var today = new Date(); var yyyy = today.getFullYear();document.write(yyyy + " "); | Attorney Advertising, Copyright var today = new Date(); var yyyy = today.getFullYear();document.write(yyyy + " "); JD Supra, LLC. Vessels, 823 S.W.2d at 762. 432 S.W.2d at 746. For example, a beneficiary may claim that the trustee has compensated itself too much. There are several remedies for breach of contract, such as award of damages , specific performance , rescission, and restitution. Beneficiaries should not generally be allowed to lay behind the log, have knowledge of a trustees conduct, not object to such conduct for a period of time, and then later complain in litigation of that conduct.
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