law-CONDITION PRECEDENT


CONDITIONS PRECEDENT - CASE LAW SNIPPETS

A party seeking to enforce a contract bears the burden of proving that all conditions precedent
have been satisfied. Mensa-Wilmont v. Smith Int'l, Inc., 312 S.W.3d 771, 781 (Tex. App.-Houston
[1st Dist.] 2009, no pet.). When a party's obligation under the contract is conditioned upon the
happening of a future event, the condition must be performed or fulfilled exactly as set forth in the
contract before the promise can be enforced. Centex Corp. v. Dalton, 840 S.W.2d 952, 956 (Tex.
1992); Beard Family P'ship v. Commercial Indem. Ins. Co., 116 S.W.3d 839, 844 (Tex. App.-Austin
2003, no pet.). Courts may excuse compliance with a condition precedent if requiring its
performance will cause extreme forfeiture or penalty and if its existence or occurrence is not an
essential part of the parties' bargained-for exchange. See Lesikar Const. Co. v. Acoustex, Inc., 509
S.W.2d 877, 881 (Tex. App.-Fort Worth 1974, writ ref. n.r.e.).

The failure of a condition precedent may also be waived by the failure to insist on performance.
Ames v. Great S. Bank, 672 S.W.2d 447, 449 (Tex. 1984); Farmer v. Holley, 237 S.W.3d 758, 760
(Tex. App.-Waco 2007, pet. denied). Waiver is an affirmative defense and is defined as the
intentional relinquishment of a known right or intentional conduct inconsistent with claiming it. Sun
Exploration & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex. 1987); Straus v. Kirby Court Corp., 909
S.W.2d 105, 108 (Tex. App.-Houston [14th Dist.] 1995, writ denied). To prove waiver, a party must
show that the other party to the contract had knowledge of the right and remained silent or inactive
for an unreasonable period of time. See Tenneco, Inc. v. Enter. Prod. Co., 925 S.W.2d 640, 643
(Tex. 1996). Waiver may also be satisfied by showing intentional conduct inconsistent with the claim
of right. Sun Exploration, 728 S.W.2d at 37. Waiver is ordinarily a fact question. Tenneco, 925 S.W.
2d at 643. Because waiver is largely a matter of intent, it will not be implied absent a clear intent
expressed in words, acts, or conduct. See EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 89 (Tex.
1996).

Once a party has generally alleged that all conditions precedent have been performed, the burden
shifts to the other party to specifically deny the conditions precedent that have not occurred. See
TEX. R. CIV. P. 54; Greathouse v. Charter Nat’l Bank-Southwest, 851 S.W.2d 173, 174, 177 (Tex.
1992); Trevino v. Allstate Ins. Co., 651 S.W.2d 8, 11 (Tex. App.—Dallas 1983, writ ref’d n.r.e.)
(plaintiff’s allegation under Rule 54 that all conditions precedent have occurred shifts the burden of
pleading, not proof, to defendant to specifically deny those conditions precedent that have not
occurred). The burden then shifts back to the plaintiff to prove performance of the particular
conditions precedent that were specifically denied. Betty Leavell Realty Co. v. Raggio, 669 S.W.2d
102, 104 (Tex. 1984); Phifer v. Nacogdoches Cnty. Cent. Appraisal Dist., 45 S.W.3d 159, 174 (Tex.
App.—Tyler 2000, pet. denied). However, if the defendant does not identify a specific condition that
has not been complied with, it admits that all conditions precedent have occurred. Greathouse, 851
S.W.2d at 177; Cmty. Bank & Trust, S.S.B. v. Fleck, 107 S.W.3d 541, 542 (Tex. 2002) (absent a
specific denial, plaintiff is relieved of burden of proving that conditions precedent to recovery have
been met). 04-10-00845-CV

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