Tag Archives: substantial performance

Is Getting Arrested Frustrating? State v. King

We are going to venture into Kansas for our next commentary. A brief in State v. King, No. 14-111786-A, 2015 WL 274723 (Ct. App. Kan.), is only the most recent entry in discussions of frustration of purpose that leave me, well, frustrated. Perhaps it’s because the doctrine often gets cursory coverage, if any at all, in the typical law school curriculum—albeit not for my students.

In any case, State v. King, No. 14-111786-A, 2015 WL 274723 (Ct. App. Kan.), involves a plea bargain gone wrong. As detailed in the appellant’s complaint, a plea agreement was entered-into concerning alleged crimes, in which the State agreed to recommend some form of probation. When it came time for sentencing, the defendant/appellant alleges, the defendant was not present, having, it is claimed, been detained in another jurisdiction on newly-filed charges.

More after the break …

Continue reading

Revisiting the Skunks—Constructive Conditions of Exchange and Consolidated Service Group, LLC

In a prior post, we have concluded the contract in Consolidated Service Group, LLC v. Maxey, No. S.D. 33061 (Mo. Ct. App., S.D.) did not limit the homeowner’s ability to have efforts in mitigation obtained by a third party. We move to the second issue:

Did the homeowner’s actions discharge the contractor’s duty to perform, under principles of constructive conditions of exchange?

More after the break …

Continue reading

Conditions vs. Duties–Jackson v. Jamestowne Homeowners Ass’n T’ees

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).