In litigation, a condition precedent to a claim is an act or circumstance that must be satisfied before a claim can be asserted. For instance, some claims require that a plaintiff deliver to a defendant a demand for restitution a certain number of days before the suit is filed. In the complaint, a plaintiff can simply state that all conditions precedent have been met. But a defendant’s standard for denying that assertion are different.
Suppose a bank, before suing for foreclosure, is required to send a homeowner notice that his mortgage is in default. In the foreclosure complaint, the bank doesn’t need to state that it has sent the homeowner that notice. It doesn’t need to allege any specific preconditions to filing suit. But if the complaint doesn’t even bother to assert that the bank has met all necessary conditions, then it is subject to dismissal when the homeowner shows that one exists.
As in any other lawsuit, most allegations can simply be admitted or denied when the homeowner answers the complaint. But the allegation regarding conditions precedent is special because a defendant denying this assertion must do so with specific facts. If the homeowner simply denies that allegation in his answer, he has forever waived the defense that the bank’s default notice may have been improper.
This double standard is succinctly described in the Federal Rules of Civil Procedure. Specifically, FRCP 9(c) states:
Conditions Precedent. In pleading conditions precedent, it suffices to allege generally that all conditions precedent have occurred or been performed. But when denying that a condition precedent has occurred or been performed, a party must do so with particularity.
So when a condition precedent applies to a claim and the plaintiff fails to allege they’ve all been met, the defendant simply has to show that a condition precedent applies and the case will be dismissed. It isn’t necessary to show that the plaintiff has failed to meet the condition. The fact that the plaintiff failed to allege it is enough to get the case dismissed. But if the complaint contains that general allegation (“all conditions precedent to the institution of the lawsuit have been fulfilled”) and the defendant denies it without specifying the exact condition that has not been satisfied, then the allegation is effectively admitted and the defendant can never raise the issue again.
Most states have adopted this principle in their own rules of civil procedure. In Florida, for instance, Rule 1.120(c) reads nearly word for word like the federal rule. The state’s case law is also settled on the issue. In 2000, a Florida appellate court reversed a summary judgment to a defendant insurance company that had failed to properly deny the conditions precedent allegation in an insured party’s claim. (“If satisfaction of the condition precedent is not denied with specificity, it is waived.”) Decades earlier, the Florida Supreme Court had held that once a defendant has met the pleading test by denying the satisfaction of a specific condition precedent, the burden of proof regarding that condition is on the plaintiff.
So when you’re suing someone, check your state’s case law on the type of claim you’re filing, along with any contracts in your case, to see if a condition precedent might apply. Even if you can’t find one, it’s not a bad idea to allege in your complaint that all conditions precedent have been met. When you’re on the receiving end of a complaint, you should likewise look for conditions precedent in the case law and the contracts you’ve signed. If you find one, use it to dismiss the case against you or to create an issue of fact as to whether conditions precedent have been met. But don’t bother denying the allegation if you can’t find one that applies because it won’t count unless you pinpoint it.
Have you used a condition precedent to defeat a claim against you? Have you lost a claim by missing this allegation entirely? (We have… Ouch!) Spread the wisdom. Drop a comment to tell us about it.