In a brief, at 2013 WL 5052261 (Mo. Ct. App. E.D.), that otherwise seems to provide a significant support for its position, the defendant homeowner’s appellate brief stumbles when it comes to discussing conditions:
Respondent’s argument of “substantial performance” is incompatible not only with the lack of evidence, but with the established precedent that “a board’s power to collect delinquent assessments is limited to the specific provision in a neighborhood indenture dealing with the collection of assessments.” DWC Enterprises v. Terre du Lac Association, 953 S.W.2d 127, 133 (Mo.Ct.App. E.D. 1997). In this case, the “specific provision” is section 3.17 of the Indenture, which spells out the notice that “shall be served.” Appendix p. 17 (Indenture p. 13)(emphasis added). It is the cases cited by Respondent that are distinguishable, in that none of them relate to a cause of action for violation of an indenture. See Phillips v. Authorized Investors Group, 625 S.W.2d 917, 921 (Mo.Ct.App. E.D. 1981). There are no reported Missouri cases applying the doctrine of “substantial performance” to such a situation. Rather, the case at bar involves “an express provision in the contract requiring literal compliance,” that is, certain prerequisites, such as the signatures or printed names of the trustees on the assessment, that had to be met prior to an assessment becoming due. See Gundaker v. Templer, 560 SW 2d 306, 309 (Mo.Ct.App. E.D. 1977).
The homeowner complains as to various defects in the notice of amounts due, such as to signatures. How do we analyze it?
We have to determine whether delivery of the specified notice is a condition to the duty to pay the charge, or whether the association has merely promised to provide a complying notice. In the latter case, we are not addressing constructive conditions of exchange, and substantial compliance with the performance promised by the association would suffice to satisfy the implied condition to the homeowner’s duty to pay.
Typically, courts are reluctant to find a condition where the language does not clearly give rise to a condition, because of the possibility of forfeiture (as could well happen in this case). Whether there was an express condition is an interpretative matter, and the language of the contract, are not adequately described to allow one to reach a conclusion on the matter.
This author is not saying there was or was not substantial compliance. That’s a detail-intensive question not well-framed by the brief. However, it is clear that if the homeowner’s duty to pay is not expressly conditional on receipt of a notice in a particular form, the ordinary treatment would be that only substantial compliance, which would include performance of notice requirements, would be required to mature the other’s duty to perform (with a right to damages for a breach of express requirement remaining available).