Quote: [u]A Defense, But Perhaps NOT an Affirmative Defense
I recently ran across a Texas case which clarified that, at least in Texas, Conditions Precedent is NOT really an affirmative defense. Generally, with affirmative defenses, the defense has the burden of proof in establishing the defense.
With conditions precedent, it is usually the plaintiff's burden to establish that conditions precedent have been satisfied, NOT the defendant's burden to prove otherwise.
In Texas, a plaintiff can allege that conditions precedent have been satisfied and UNLESS the defendant specifically denies satisfaction of particular conditions precedent this allegation is sufficient. But where the defendant makes a specific denial, the burden shifts back to the plaintiff to prove satisfaction of those conditions precedent expressly denied by the defendant.
Here are the Texas cases elaborating:
"FN 1: Failure to meet conditions precedent is not an "affirmative defense" on which Progressive bore the burden of proof. As the Dallas court explained regarding the burdens of pleading and proof:
A condition precedent to the right to maintain an action must be performed and "the fact of performance or excuse of nonperformance must be alleged and proved in order to warrant a recovery." Southwestern Associated Telephone Co. v. City of Dalhart, 254 S.W.2d 819, 825 (Tex.Civ.App.-Amarillo 1952, writ ref'd n.r.e.). When a plaintiff avers generally that all conditions precedent have been performed, he is required to prove the performance of only those conditions precedent specifically denied by the defendant. The effect of this rule is to shift the burden of pleading to the defendant, but not the burden of proof, when the plaintiff has made a general allegation that all conditions precedent have been performed.
Trevino v. Allstate Ins. Co., 651 S.W.2d 8, 11 (Tex.App.-Dallas 1983, writ ref'd n.r.e.) (emphasis added). Accordingly, appellants' "no evidence" motion for summary judgment was not appropriate in this regard."
Lidawi v. Progressive County Mut. Ins. Co., No. 14-02-00908-CV, 112 S.W.3d 725, 729 n.1 (Tex. App.-Houston [14th Dist.] 2003, no pet.)
"As a threshold matter, we address Bank of America's reference to Eisenhauer's alleged failure to satisfy a condition precedent as an affirmative defense. Bank of America urged in its motion for traditional summary judgment and now on appeal that the evidence established this affirmative defense as a matter of law; thus, the trial court erred in denying its traditional motion for summary judgment. See Tex. R. Civ. P. 166a(c); Ortega, 97 S.W.3d at 772; see also Tex. R. Civ. P. 54 (providing for the defense of failure to satisfy a condition precedent), 94 (identifying affirmative defenses). However, failure to satisfy conditions precedent is not an "affirmative defense" on which Bank of America bore the burden of proof. See Lidawi v. Progressive County Mut. Ins. Co., 112 S.W.3d 725, 729 n.1 (Tex. App.-Houston [14th Dist.] 2003, no pet.).
Texas Rule of Civil Procedure 54 provides that after a defendant has specifically denied the performance of the condition precedent, the plaintiff is required to prove the performance of only those conditions that the defendant has specifically denied. Tex. R. Civ. P. 54. The effect of rule 54 is to shift the burden of pleading to the defendant, not the burden of proof; the burden of both pleading and proof of performance of all conditions precedent to recovery remains with the plaintiff. Trevino v. Allstate Ins. Co., 651 S.W.2d 8, 11 (Tex. App.-Dallas 1983, writ ref'd n.r.e.). As the Houston Court and the Dallas Court have explained:
A condition precedent to the right to maintain an action must be performed and "the fact of performance or excuse of nonperformance must be alleged and proved in order to warrant a recovery." Southwestern Associated Telephone Co. v. City of Dalhart, 254 S.W.2d 819, 825 (Tex. Civ. App.-Amarillo 1952, writ ref'd n.r.e.). When a plaintiff avers generally that all conditions precedent have been performed, he is required to prove the performance of only those conditions precedent specifically denied by the defendant. The effect of this rule is to shift the burden of pleading to the defendant, but not the burden of proof, when the plaintiff has made a general allegation that all conditions precedent have been performed.
Lidawi, 112 S.W.3d at 729 n.1 (quoting Trevino, 651 S.W.2d at 11).
Therefore, when a defendant's liability on a contract depends on the performance or happening of a condition precedent, the plaintiff, not the defendant, must allege and prove that the condition has happened or has been performed or that there was a waiver of the condition precedent. See Parkview Gen. Hosp., Inc. v. Eppes, 447 S.W.2d 487, 490 (Tex. Civ. App.-Corpus Christi 1969, writ ref'd n.r.e.); see also Hurst v. Rush, 514 S.W.2d 472, 475 (Tex. Civ. App.-Beaumont 1974, no writ). In the absence of the occurrence or performance of such a condition precedent, there can be no breach of contract. Hurst, 514 S.W.2d at 475; Eppes, 447 S.W.2d at 490-91."
Bank of America, NA v. Eisenhauer, No. 13-09-00004-CV, 2010 Tex. App. LEXIS 5519 (Tex. App.—Edinburg 2010, no pet.).
"Whether a particular fact is a matter of avoidance or defense turns on the burden of proof. Normally the plaintiff has the burden to prove all facts essential to liability, including proof of performance of all conditions precedent. Nonperformance of a condition precedent may be considered a matter of "avoidance" or "defense" in the sense that it bars recovery even though the truth of the plaintiff's allegations may be established. See Dairyland County Mutual Ins. Co. v. Roman, 498 S.W.2d 154, 157 (Tex.1973). In this sense, of course, failure to establish one of several essential elements of any cause of action bars recovery even though all other elements may be established. The pertinent inquiry is whether compliance with a condition precedent is a matter that plaintiff must prove as an essential element of his case. The law is clear that performance of a condition precedent is an essential element of the plaintiff's case on which the plaintiff has the burden of proof unless he alleges performance of all conditions precedent and the defendant fails to deny specifically performance of the conditions, as required by rule 54. Texas International Airlines v. Wits Air Freight, 608 S.W.2d 828 (Tex.Civ.App. — Dallas 1980, no writ); City of Galveston v. Shu, 607 S.W.2d 942, 945 (Tex.Civ.App. — Houston [1st Dist.] 1980, no writ); Bunch Electric Co. v. Tex-Craft Builders, Inc., 480 S.W.2d 42, 47 (Tex.Civ. App. — Tyler 1972, no writ); see Dairyland County Mutual Ins. Co. v. Roman, 498 S.W.2d 154, 157 (Tex. 1973) ("defense" of failure to give notice of accident was not available to company because the insured pleaded generally that all conditions precedent had been performed and the insurer 13*13 failed to deny specifically). Under these authorities, having made no such general allegation, Trevino cannot claim the benefit of the presumption provided by rule 54. Consequently the forwarding of suit papers is not a matter of avoidance or affirmative defense, but a fact she must prove as an essential element of her case."
Trevino v. Allstate Ins. Co., 651 S.W.2d 8, 10-11 (Tex.App.-Dallas 1983, writ ref'd n.r.e.)
A quick note relating to Texas writ history might also be in order. Texas Rules require the inclusion of the so-called writ history in citing Texas cases. Prior to 1996, the process of appealing to the Texas Supreme Court involved filing a writ of error. This was then changed to a petition for review.
The writ history shows what happened to the case after the determination by the intermediate appellate court.
"no writ" or "no pet." means that neither party appealed the matter beyond the intermediate court.
"writ denied" or "pet. denied" means that the case was appealed and the Texas Supreme Court denied a hearing of the appeal, basically that the Texas Supreme Court did not actually take the case for review. This might reflect that the court agreed with the decision, but it also might simply mean that the Texas Supreme Court thought that there really wasn't any serious disagreement between the intermediate appellate courts as to the issues presented for appeal.
By contrast "writ ref'd n.r.e." means writ refused, no reversible error. Basically, the Texas Supreme Court has refused to hear the appeal expressly finding that the intermediate court's decision was free from any error that would merit an appeal. In this instance, the Texas Supreme Court has essentially blessed off on teh intermediate appellate opinion without taking the case, hearing briefs and issuing its own opinion. Such a case bears almost the same authority as a Texas Supreme Court decision.
While I titled this thread "The Conditions Precedent Affirmative Defense", the reasoning of the decisions seems to me to be pretty sound. I have NOT investigated case law in other jurisdictions. But describing conditions precedent as an avoidance defense rather than an affirmative defense feels right. But EVERYONE is enouraged to READ THE RULES and the CASES for their jurisdiction to ascertain precisely how to characterize this defense and to determine which party bears each burden.
Those who locate cases in their jurisdiction as to the burdens of proof are encouraged share those cases!
See Mr. Roper's post from Posted 05/24/11 at 12:22 PM