Category Archives: Pending

Proving Damages for MMPA Claim–Oitker v. K.C. Waterproofing, Inc.

Missouri authority allows a property owner to testify as to the value of property, in contexts where one might think that the property owner’s testimony would be excluded as being an expert testimony without proof of the ordinary prerequisites to expert testimony. Oitker v. K.C. Waterproofing addresses such an issue. It seems there were problems with the foundation work done by the contractor.

It seems to be the contractor’s position that the client was not entitled to claim that the promised services were worth at least what the contractor charged. Presumably the contractor would not have expressly disagreed at the time the contract was formed.

Let’s see if the contractor’s discussion of the foundation for the damages computation is “all wet”.

More after the break …

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Long-Term Lease Restricting Improvements–Mayer v. Lindenwood Female College

A long-term lease provides this:

The Lessee shall at all times during the term of this lease, subject to the terms and provisions of this lease, have the sole and exclusive right to erect, build, rebuild, repair, change, alter, or otherwise construct such buildings, appurtenances, or other improvements for commercial use as the Lessee in its sole discretion may determine, so long as same are in no instances used for an unlawful purpose, and so long as the value of such improvements shall not be diminished to less than One hundred Thousand Dollars ($100,000.00) as the result of such work.

The brief is at: Mayer v. Lindenwood Female College, No. ED100587, 2014 WL 2116410 (Mo. Ct. App., E.D.). The question: Does this language allow the tenant to replace a building, as long as the improvement value continued to meet the dollar amount? I would think so. The lessor disagrees. Let’s see the brief.

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Additional Thoughts on Pre-Existing Duty Rule and Third Parties

Our last post, concerning PDI Group, Inc. v. The Desco Group, Inc., involved the application of the pre-existing duty rule to a circumstance where the pre-existing duty was under a contract with a third party. In that post it was noted that additional detail of the context would be helpful. Let us expand by illustration.

As previously noted, the function performed by the pre-existing duty rule is to make unenforceable a promise made in circumstances indicating the promise was not voluntary, without the need for separately proving the generally applicable elements of duress. When the pre-existing duty is owed to a third party, the circumstance may not suggest the same level of lack of volition. We can, however, provide an illustration of a context where a lack of volition may be present:

With three parties, the language can be confusing. So let’s say:

Current Contract: Promisor P promises to render performance to O, with putative consideration being performance C. It is alleged that O was already obligated under an old contract (“Old Contract”) between O and TP to render performance C.

An argument that P’s promise to render performance to O was not really voluntary (and was not supported by consideration) is supported by a conclusion P was an intended beneficiary of O’s duties under the Old Contract. So, one may want to consider that issue.


Pre-Existing Duty Rule and Agent’s Obligations–PDI Group, Inc. v. The Desco Group, Inc.

In PDI Group, Inc. v. The Desco Group, Inc., 2014 WL 2718852 (Mo. Ct. App., E.D.), we have an issue of the pre-existing duty rule and the scope of an alleged agent’s duties.  The appellant’s brief reports the following:

The case involves a construction contract requiring the contractor to do work involving installation of a plumbing system for particular premises. The contractor allegedly in part used existing ABS pipe in lieu of installing scheduled PVC pipe, with bad results following. The  defendant, allegedly in the capacity of the agent of the property owner, had discussions with the contractor, following which some additional plumbing work was done.

The pertinent questions include, among others: whether no enforceable contract could have been formed, because the contractor was under a pre-existing duty to a third party (relationship not adequately clarified in the brief)  to have done that work and  whether the defendant could be liable, because it alleges it purported to act as agent for the property owner.

 As a third party only reviewing the brief, it is, frankly, somewhat awkward to ascertain the pertinent relationships between the referenced entities. In particular, the precise relationship between the obligee under the first contract and the putative principal of the defendant could be better explained. And one would think that relationship requires some detailed discussion. Here’s why:

The case involves an alleged pre-existing duty owed by contract to a third party. The benefit of the pre-existing duty rule is it affords a basis for a court to negate a determination there is an enforceable amendment to a contract in certain contexts where it would appear there was not voluntary assent. Of course, the principle is couched in terms of consideration, but its real benefit is it allows revisiting of the ordinary principles of what is assent (and what is not duress) in a context where factors indicate there was not voluntary assent.

That the duty is owed to a third party raises additional complexities. It may well be that, where the duty is owed to a third party, the arrangement was, in fact, voluntary–that the concerns underlying the principle are not present. See generally Restatement (Second) of Contracts § 73, cmt. d.

Calamari & Perillo § 4.9(d) (5th ed. 2003) indicates “the weight of the modern authority” would allow the arrangement to be enforceable–that a pre-existing contractual duty to a third party does not eliminate consideration.

Of course, the fact that a majority of jurisdictions reaches a particular result does not mean that’s the intelligent answer. I am something of a fan of the pre-existing duty rule, at least relative to what I gather to be the typical modern approach. But, were I seeking to support the defendant’s position in this regard, I would want to see a greater development of the pertinent facts, and the relationship with the first contract, for purposes of being persuaded that the circumstances are such that the consent appears to have been not fully voluntary.

As to the agency issue, it’s very difficult to comment. Of course, in the normal case, an agent is not liable for a contract entered into on behalf of a disclosed principal. The alleged agent’s brief does not go into detail as to why the ordinary principle may not apply, so one cannot really comment thoughtfully on that.

The brief also discusses claims the alleged contract was not sufficiently definite. That is, of course, an important factor. The context does not capture my fancy at the moment, so I’ll pass on addressing that.