St. Mary's Law Journal


A party demanding money they are not entitled to becomes subject to the excessive demand doctrine. Because the excessive demand doctrine is an affirmative defense, a defending party must allege its claim of excessive demand in its pleadings. A party must “plead it, prove it, and obtain findings of fact on its essential elements.” To obtain findings on the issue, both the pleadings and the evidence are required to put a question or instruction before the jury. Ensuring that the evidence is enough depends upon the trial court—whose judgment will only be overturned upon a showing of an abuse of discretion. Preventing excessive demands serves the purpose of resolving disputes fairly and efficiently by eliminating improper motives to delay settlement. Knowing the ins and outs of the doctrine enables litigants to either preserve their recovery against diminution on one side or protect against unjust exposure to mounting attorney’s fees and damages based on unreasonable, bad faith demands on the other. Texas’s excessive demand defense is powerful against recovery and a potential deterrent to the proffering of inordinate demands and costly stalling in litigation. The recurring lessons yielded from these cases are that failure to raise the defense and failure to meet the elements ruins application of the defense. The excessive demand can vitiate the recovery of substantial attorney’s fees and prejudgment interest. This could occur if a party makes an unreasonable or bad faith demand for a sum the party is not entitled to receive and further refuses or reveals an unwillingness to accept tender of the amount owed.


St. Mary's University School of Law