condition precedent for bringing suit | failure to satisfy conditions precedent | presuit demand letter |
attorney's fee claim, making claim under insurance policy, presuit demand prior to bringin shareholder
derivative action
A condition precedent is an event that must happen or be performed before a right
can accrue to enforce an obligation. Centex Corp. v. Dalton, 840 S.W.2d 952, 956 (Tex. 1992);
Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex. 1976). When a contract contains a
condition precedent, the condition must either have been met or excused before the other party’s obligation
can be enforced. Cal-Tex Lumber Co. v. Owens Handle Co., 989 S.W.2d 802, 809 (Tex. App.—Tyler 1999,
no pet.).
A condition precedent may be waived and such waiver may be inferred from a party’s
conduct. Sun Exploration & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex. 1987); Bekins Moving & Storage
Co. v. Williams, 947 S.W.2d 568, 576 (Tex. App.—Texarkana 1997, no writ). The performance of a condition
precedent can be waived or modified by the party to whom the obligation was due by word or deed. Ames v.
Great S. Bank, 672 S.W.2d 447, 449 (Tex. 1984). Waiver is an intentional relinquishment of a known right or
intentional conduct inconsistent with claiming that right. Mass. Bond & Ins. Co. v. Orkin Exterm. Co., 416 S.W.
2d 396, 401 (Tex. 1967). Additionally, a condition precedent may be excused under certain circumstances.
See Lesikar Constr. Co. v. Acoustex, Inc., 509 S.W.2d 877, 881 (Tex. Civ. App.—Fort Worth 1974, writ ref’d
n.r.e.). Indeed, it is a rule of construction that a forfeiture by finding a condition precedent is to be avoided
when possible under another reasonable reading of the contract. Schwarz-Jordan, Inc. v. Delisle Constr.
Co., 569 S.W.2d 878, 881 (Tex. 1978).
CASELAW ON "CONDITION PRECEDENT" FROM HOUSTON
Boondoggles Corp. v. Yancey (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(by Radack)
[employment law, employment contract, breach of contract, BoC, restaurant manager, modification of
contract, contract construction, ambiguous contract, bonus pay, calculation of damages, remittitur, res
judicata, no identity of claims, parties, different capacities, attorney fees, disclosure of witnesses, discovery
not filed, CoD]
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Taft and Nuchia
01-05-00185-CV Boondoggles Corporation v. Johnathan Yancey
Appeal from 234th District Court of Harris County (Hon. Reece Rondon)
(“Having concluded that the trial court properly found that Boondoggles never paid Yancey the bonus
required by his contract of employment and that Yancey demanded payment before filing this action, the trial
court correctly ruled, in conclusion of law seven, that Yancey’’s right to collect was due.”)
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