Substantial Performance of a Construction Contract In Texas

The doctrine of substantial performance is an equitable action that allows a contractor who has substantially performed a construction contract to sue on the contract rather than being relegated to his cause of action for quantum meruit. See Vance v. My Apartment Steak House of San Antonio, Inc., 677 S.W.2d 480, 482 (Tex. 1984). The doctrine does not permit the contractor to recover the full consideration provided in the contract because, by definition, the doctrine recognizes that the contractor is in breach of the contract. Id. Although the contractor is allowed to sue on the contract, his recovery is decreased by the cost of remedying those defects for which he is responsible. Id. A contractor seeking recovery on a substantial performance theory has the burden to plead substantial performance, to prove that he did substantially perform, and to prove the consideration due him under the contract, and the cost of remedying the defects due to his errors or omissions. Id. at 483.; Carr v. Norstok Bldg. Systems, Inc., 767 S.W.2d 936, 940 (Tex. App.--Beaumont 1989, no writ). A finding that a contract has been substantially completed is the legal equivalent of full compliance, less any offsets for remediable defects. Uhlir v. Golden Triangle Development Corp., 763 S.W.2d 512, 515 (Tex. App.--Fort Worth 1988, writ denied).