Timothy Langdon, et al., Appellants,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0320

Timothy Langdon, et al.,
Appellants,

vs.

Holden Farms, Inc.,
Respondent.

Filed November 19, 2018
Affirmed
Rodenberg, Judge

Rice County District Court
File No. 66-CV-14-2123

Jack Y. Perry, Maren F. Grier, Br iggs and Morgan, P.A., Minneap olis, Minnesota (for
appellants)

Dustan J. Cross, Dean M. Zimmer li, Gislason & Hunter LLP, New U lm, Minnesota (for
respondent)

Considered and decided by Rodenberg, Presiding Judge; Schellha s, Judge; and
Smith, John, Judge.


 Retired judge of the Minnesota Court of Appeals, serving by app ointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellants Timothy and Jennifer Langdon appeal from the distri ct court’s decision
after a court trial dismissing their breach-of-contact and brea ch-of-duty-of-good-faith-in-
agricultural-contracts claims aga inst respondent Holden Farms I nc., arguing that the
district court erred as a matter of law. We affirm.
FACTS
Appellants own and operate a family farm. Respondent, a corpo ration owned by
Kent Holden and his brother, is engaged in the production and sale of swine. Respondent
contracts with and pays independe nt farmers to raise hogs owned by respondent.
Companies such as respondent are sometimes referred to as “integrators,” and the farmers
are referred to as “growers.”
The parties entered into a writte n “MN Wean to Finish Independe nt Contractor
Agreement” (Agreement) on June 1, 2008, under which appellants would act as growers
for respondent. All communicati on between the parties relating to the Agreement and
before it was signed was through a third party, Interstate Mill s. D.F., an Interstate Mills
employee, acted as a go-between in an effort to sell more feed to the integrators.1 In 2004,
appellants purchased land in Blooming Prairie with the intentio n of constructing a

1 There was some uncertain testi mony about Mr. Langdon meeting M r. Holden years
earlier, but it is clear from the record that, in the immediate period leading up to the
contract, there was no personal contact between Messrs. Holden and Langdon. There were
a few phone calls between a Holden employee and Mr. Langdon, bu t those calls did not
relate to this contract.

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confinement barn and for the pur pose of raising hogs at the sit e (BP site). Appellants
originally planned on raising hogs at the BP site for another integrator, Squealers Pork, but,
at some point, respondent replaced Squealers Pork as appellants ’ intended integrator.
Mr. Langdon testified that he wa s not sure how this happened bu t that it was most likely
through the efforts of D.F.
Under the parties’ Agreement, a nd because appellants did not ha ve an existing
facility in which animals could be placed, appellants were requ ired to timely construct a
new wean-to-finish hog facility after obtaining all necessary p ermits and regulatory
approvals. Section 1(C) of the Agreement provides that “the ba rn(s) to be utilized in
connection with this Agreement c onsists of new construction wit h the approximate
dimensions of 51 x 488 [feet]. A precondition of Holden’s obligations u n d e r t h i s
Agreement is timely completion of construction of said barn(s) in accordance with the
building characteristics as described in this Agreement.” (Emphasis added.) Section 1(E)
provides that a “precondition of Holden’s obligations under thi s Agreement is inspection
by Holden of the buildings and facility and determination by Ho lden that the same are
satisfactory to it.” Additionally, section 1(F) provides that a condition of the Agreement
is grower’s receipt of any and all necessary zoning and regulatory permits and approvals.
Respondent’s obligations are set forth in section 3 of the Agreement, which provides
that “Holden will deliver pigs to Grower for feeding and rearing at the facilities described
above commencing no later than Fall 08.” The period between wh en the Agreement was
signed in June and the anticipated delivery in fall 2008 was to provide time for appellants

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to obtain the necessary permits and construct the barn. Mr. Ho lden testified at trial that
this process generally takes about four months.
Appellants never constructed the barn. There were further discussions between the
parties after 2008, and appellants eventually sued respondent. Appellants claimed that they
were only obliged to “timely” construct the barn, and that respondent wrongfully declined
to follow through on its obliga tions under the Agreement. The district court found after
trial that appellants were oblig ated to have all necessary perm its and the barn built for
population by respondent in the fall of 2008. After executing the Agreement, it was
necessary for appellants to obtain a variance and conditional use permit (CUP) from Ripley
Township to begin building the barn. The district court found that the terms and conditions
of appellants’ CUP were not complied with until, at the earliest, March 27, 2009.2
Appellants claim they were informed in the fall of 2008 that respondent then wanted
to delay the project, but the district court found that “[t]here is no evidence that this in fact
occurred.” The district court f ound that “the evidence is clea r that [respondent] . . . told
[appellants] that the project would be put on hold in March of 2009.” Appellants argued

2 Appellants were issued a variance and CUP on October 23, 2008, but both contained a
set of conditions to be met befor e construction could begin whi ch included that
(1) appellants enter into a writte n management agreement for th e facility with Roger
Toquam; and (2) acquire ownership or a lease of at least 96 acr es of property for the site.
The district court found that there was uncontroverted evidence that appellants did not have
a complete agreement with Mr. Toqu am, because they never agreed on the rate of pay.
(Not mentioned by the district court was the additional problem that appellant executed the
agreement as President of an LLC that appellant conceded did not exist.) Additionally, the
district court found that the purported lease of additional acr es was a sham lease.
Appellants’ attorney stated that the lease was intended to show compliance with the CUP
provisions.

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that the barn could not be built until respondent informed them when the pigs were coming,
but the district court found as a fact that the Agreement identified when respondent was to
deliver the pigs—fall 2008.
There was extensive testimony at trial concerning the communications between the
parties between March 27, 2009, and commencement of the lawsuit in August 2013. The
parties had some phone communication in 2010 in which respondent told Mr. Langdon that
it did not need another grower for the year. Mr. Langdon does not recall his response. In
2011, Mr. Langdon went to respondent’s office for a meeting during which he claims that
respondent told him it was no longer using 3,000-head barns. H e testified that, after he
reminded respondent that they had a contract, respondent agreed to honor it. Mr. Langdon
testified that he left the meeting thinking the project was “a go,” but still did not build the
barn.
It appears from the record that the parties met at the BP site in April 2011, where
the parties agree that Mr. Holden told Mr. Langdon that the sit e should be cleaned up,
including removal of a chicken barn. Mr. Holden testified that Mr. Langdon stated that he
could not afford this cost and would find another integrator for which to grow. Mr. Holden
testified that he understood this to be an abandonment of the project, to which Mr. Holden
consented. Mr. Langdon testified that he does not recall anyth ing he may have said in
response to Mr. Holden’s comment a bout cleaning up the property and still believed the
Agreement was in place despite again not proceeding with barn construction.
The district court noted that much of the trial testimony was c onflicting and found
as a fact that communications after March 2009 were mere attemp t s t o r e s u r r e c t t h e

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Agreement between the parties. I t found that respondent did no t breach the Agreement
and, instead, found that there w as a failure of a condition pre cedent—namely that
appellants never constructed the barn into which respondent would have delivered pigs.
Appellants argued at trial that re spondent improperly terminate d the Agreement.
The Agreement provides that it “shall be in effect upon executi on and thereafter, unless
sooner terminated by default, for a term of 12 years commencing Fall 08.” Section 9 of
the Agreement provides that “[a]n event of default shall be material breach of any term or
condition of this Agreement.” Section 9 also requires that, upon default, the nondefaulting
party must provide 30 days’ written notice to the defaulting party, and if any default is not
cured within 30 days, then, in addition to the option of termin ating the Agreement, the
nondefaulting party shall have rem edies that may exist at law o r in equity including the
remedy of specific performance.
Mr. Langdon claims that Mr. Holden called him on November 19, 2 012, to inform
him that respondent was not going forward with the project. Mr . Holden does not recall
s u c h a c o n v e r s a t i o n . R e s p o n d e n t r e c e i v e d a l e t t e r f r o m a p p e l l an t s ’ a t t o r n e y o n
December 19, 2012, asking respo ndent to follow up on the status of the Agreement and
advise of respondent’s intentions. The letter did not state th at respondent had either
breached the Agreement or was in default, nor did the letter me ntion any phone call from
Mr. Holden one month earlier. Respondent’s attorney replied on January 8, 2013, stating
that several conditions had not been satisfied and that respond ent considered the
Agreement to have been abandoned. Mr. Langdon conceded at trial that appellants never

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provided any 30-day notice of default. The district court found that the first document that
could be construed as a notice of default was the complaint filed by the appellants.
After respondent was served with a summons and complaint on Aug ust 12, 2013,
respondent’s attorney sent a re sponsive email to appellants’ co unsel on August 30, 2013,
stating that respondent would go through with the project if appellants still wished to do so
and abide by the original terms. Appellants’ attorney replied on September 6, 2013, stating
that respondent’s proposal to sim ply reinstate the Agreement wi th no financial
reimbursement would not work. The district court stated, “[w]h ile this finding is not
necessary to the Court’s decision, this Court does find that th is was an offer to cure by
[respondent] and was rejected by [appellants].”
The district court ultimately concluded after trial that appell ants’ building a swine
barn ready for operation in 2008 was a condition precedent, and that their failure to build
the barn was a “breach of contract.” The district court found that the barn was not built
because appellants did not have the proper permits in place unt il at least March 27, 2009,
and that the barn not having been built had not been caused by anything respondent did or
did not do. The district court found that respondent’s obligation was to populate appellants’
b a r n i n t h e f a l l o f 2 0 0 8 , b u t “ [ t ] h e y c a n n o t p o p u l a t e a b a r n t hat doesn’t exist.” The
Agreement provides that any modifications to it have to be in writing, and the district court
found that no such writing existed. The district court recognized that, where an agreement
provides that modifications must be in writing, case law permits oral modifications by clear
and convincing evidence. But it found that appellants failed to prove an oral modification,
even by a preponderance of the evidence.

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The second count of appellants’ complaint alleged misrepresentation and estoppel,
with the first misrepresentation in the spring of 2009, and ens uing misrepresentations in
2010, 2011, and 2012. The district court determined that this claim fails because
appellants’ breach occurred before these purported misrepresentations. Appellants’ third
count alleged that respondent br eached the statutory duty of go od faith in agricultural
contracts under Minn. Stat. §§ 17.90-.98. Appellants alleged, but the district court found
that they failed to prove, that respondent’s sole interest in entering into the Agreement and
delaying for years was to prevent a competitor from raising hogs at the BP site. The district
court found that the evidence p roduced by appellants in support of their claim that
respondent acted in bad faith to be insufficient. The district court therefore dismissed
appellants’ complaint with prejudice and entered judgment in respondent’s favor.
This appeal followed.
D E C I S I O N
In order to prevail on a breach-o f-contract claim, a plaintiff must prove (1) formation
of a contract, (2) performance by the plaintiff of any conditio ns precedent to the right to
demand performance by the defendant, and (3) breach of contract by defendant. Lyon Fin.
Servs., Inc. v. Ill. Paper & Copier Co. , 848 N.W.2d 539, 543 (Minn. 2014) (citing Park
Nicollet Clinic v. Hamann , 808 N.W.2d 828, 833 (Minn. 2011)). Appellants argue that,
even if they were in default, res pondent was required to provid e them with notice and
opportunity to cure in order to properly terminate the Agreemen t, because timely
completion of the barn as required under section 1(C) was not a condition precedent to the
Agreement. Contract interpretation is an issue of law reviewed de novo. Linn v. BCBSM,

9
Inc., 905 N.W.2d 497, 504 (Minn. 2018). Appellate courts review th e district court’s
findings of fact for clear error. Goldman v. Greenwood , 748 N.W.2d 279, 284 (Minn.
2008).
A condition precedent is “any fact except mere lapse of time wh ich must exist or
occur before a duty of immediate performance by the promisor can arise.” Carl Bolander
& Sons Inc. v. United Stockyards Corp. , 215 N.W.2d 473, 476 (Minn. 1974) (quotation
omitted); see also Nat’l City Bank of Minneapolis v. St. Paul Fire & Marine Ins. Co., 447
N.W.2d 171, 176 (Minn. 1989) ( defining a condition precedent as “ a n y f a c t o r e v e n t ,
subsequent to the making of a contract, which must exist or occ ur before a duty of
immediate performance arises under the contract”). “There are no particular code words
needed to form an express condition.” Carl Bolander, 215 N.W.2d at 476.
Section 1(C) of the Agreement reads, “A precondition of [respondent’s] obligations
under this Agreement is the timely completion of construction of said barn(s) in accordance
with the building characteristics as described in this Agreement.” Appellants identify three
reasons supporting their contenti on that the district court err ed by determining that this
section contained a condition pr ecedent: First, courts constru e ambiguity against the
drafter; second, respondent used the words “condition precedent” in a different section of
the Agreement but not in section 1(C) and this difference in terminology must be regarded
as intentional; and, third, the Ag reement is to be construed co nsistent with respondent’s
prior interpretations of this contractual provision, and appell ants cite to respondent’s
testimony that respondent considered the Agreement as operative long after fall 2008
despite no barn having been built.

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Notwithstanding that section 1(C) of the Agreement does not use the specific words
“condition precedent,” appellants’ argument is unavailing. The section is unambiguous.
In Carl Bolander, the condition in q uestion provided “ assuming that no extreme depth
pockets of unsuitable material exists that do not show up in yo ur soil borings,” and that
contract language was determined to establish a condition precedent. 215 N.W.2d at 476
(emphasis added). The supreme court concluded that the contract language was “clear and
unequivocal” in establishing a condition precedent to performance. Id. The section at issue
here can sensibly be construed only as a condition precedent. Respondent could not deliver
hogs unless and until appellants had constructed a barn into wh ich they could be put.
Therefore, the district court pr operly determined that section 1(C) of the Agreement
established a condition precedent to performance.3
“When a contract contains a c ondition precedent, a party to the contract does not
acquire any rights under the contr act unless the condition occu rs.” Nat’l Union Fire Ins.
v. Schwing Am., Inc. , 446 N.W.2d 410, 412 (Minn. App. 1 9 8 9 ) . I t i s a f u n d a m e n t a l
principle of general contract law that there can be no breach o f contract if a condition
precedent has not been satisfied:4

3 We note that the district court seems to have conflated the theories of contractual default
and failure to fulfill a condition precedent when it stated tha t appellants breached the
Agreement by failing to construct the barn. Nevertheless, the district court was ultimately
correct in determining that constructing the barn was a conditi on precedent to any of
respondent’s obligations under the Agreement, as made clearer i n i t s o r d e r d e n y i n g
appellants’ posttrial motions.

4 We are mindful that the Minnesota Supreme Court has recently a cknowledged a limited
exception to the general rule that unfulfilled conditions prevent enforcement of a contract
where the unfulfilled condition is not a material condition of the contract and would result

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When a contractual duty is sub ject to a condition precedent,
whether that condition is expres s, implied, or constructive,
there is no duty of immediate performance and there can be no
breach of that contractual dut y by mere nonperformance,
unless the condition precedent is neither performed nor
excused. If such a condition pr ecedent is neither performed
nor excused within the time that is required, such failure now
makes it impossible for a breach of contract to occur.
Nonperformance of the primary contractual duty can now
never operate as a breach of it; and no remedy for enforcement
will ever be available. Therefore, the contractual duty must be
regarded as discharged.

6 Arthur L. Corbin, Corbin on Contracts § 1252 at 2 (1962). Respondent cannot be
determined to have breached the Agreement, because appellants have failed to demonstrate
performance of the condition precedent that they build a barn by fall 2008. That condition
was neither performed nor excused. Indeed, appellants provided no evidence that they had
even begun construction of the barn before commencing their bre ach-of-contract suit
against respondent.
5

in a disproportionate forfeiture. See Capistrant v. Lifetouch Nat’l Sch. Studios, Inc. , 916
N.W.2d 23, 26-28 (Minn. 2018) (stating that the court of appeal s correctly looked to the
Restatement (Second) of Contract s § 229 for guidance, which sec tion provides: “To the
extent that the non-occurrence of a condition w ould cause dispr oportionate forfeiture, a
court may excuse the non-occurrence of that condition unless its occurrence was a material
part of the agreed exchange”). Appellants have not argued that construction of the barn
was not a material part of the Agreement or that there would be any forfeiture if barn
construction is regarded as a condition precedent. Consequently, we adhere to the general
rule that “unfulfilled conditions prevent enforcement of a cont ract.” Crossroads Church
of Prior Lake MN v. County of Dakota, 800 N.W.2d 608, 615 (Minn. 2011).

5 Appellants argue in their reply brief that they started construction of the barn. However,
appellants’ attorney agreed to strike this assertion from the reply brief because it includes
information not conta ined within the trial court record. The r ecord supports the district
court’s finding that “the barn was never built.”

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Appellants argue that respondent breached the Agreement by anti cipatorily
repudiating the Agreement in January 2013. But there was no binding agreement in place
between the parties on that date.6 Appellants also argue that the parties mutually modified
the Agreement’s terms regarding the timing of barn construction and hog delivery. The
Agreement expressly provided that no modifications could be made except by subsequent
written documents signed by both parties. The district court f ound that “[i]t is clear there
were no such written documents i n this case,” and appellants ha ve not argued otherwise.
The record supports this finding . “This court respects written contracts and subjects
allegations of an inconsistent ora l contract to a rigorous exam ination.” Bolander v.
Bolander, 703 N.W.2d 529, 541-42 (Minn. App. 2005). When a party asser ts that there
has been an enforceable oral modification of the terms of a written contract, that party has
the burden of providing the modi fication by clear and convincin g evidence. Id. at 542.
The district court found that appellants “fail in even showing an oral modification by the
preponderance of the evidence, l et alone clear and convincing e vidence.” The record
supports this finding as well.
Appellants claim they were informed in the fall of 2008 that re spondent wanted to
then delay the project, but the d istrict court found “[t]here i s no evidence that this in fact

6 Appellants argued in their principal brief that the letter the y received from respondent’s
attorney in January 2013 stated that respondent “would no longe r proceed under the
Agreement.” Counsel acknowledged at oral arguments that the letter does not contain this
statement.

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occurred.”7 The district court found that Mr. Langdon’s testimony was not persuasive
because he was able to recall specifically what others had told him in phone calls years
earlier but invariably testified that he does not remember what his response was to those
statements. The record supports the district court’s finding that appellants failed to prove
an oral modification of the Agreement by clear and convincing e vidence and that the
communications after fall 2008 were, at most, attempts to resur rect the 2008 agreement.8
Respondent could not have repudiat ed an agreement that was no l onger operative. The
record supports the district court’s determination that appellants’ breach-of-contract claim
must fail because appellants fa iled to satisfy a condition prec edent that was within their
control.
Appellants argue that, if we wer e to conclude that respondent improperly terminated
the Agreement, then remand should follow for the district court to determine whether
respondent breached the statutorily implied promise of good faith in agricultural contracts
pursuant to Minn. Stat. § 17.94 (2016). The record supports th e district court’s
determination that appellants failed to demonstrate that respondent did not act in good faith.

7 Appellants argued in their posttrial motion that appellants and D.F. jointly decided in the
fall of 2008 that the contract needed to be delayed, but D.F. w as never employed by
respondent. Appellants’ conversa tions with D.F. are irrelevant , and the district court
properly so found.

8 Appellants argued in their brief on appeal that respondent wai ved appellants’ failure to
construct the barn by fall 2008. There is some uncertainty as to whether this issue was
properly raised to the district court, but the argument is at l e a s t w i t h i n t h e s c o p e o f
appellants’ argument that respondent modified or waived the timing of the Agreement. As
noted, the district court properly found that there was no modi fication of the Agreement
and nothing in the record suggest s that respondent waived appel lants’ obligation to
construct a barn to house the hogs as a condition precedent to its obligation to deliver pigs.

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As the district court properly f ound, it was appellants’ failur e to construct the barn that
frustrated the Agreement, and ap pellants’ failure to construct the barn had nothing to do
with anything respondent did or failed to do. Because appellants’ argument is premised on
reversing the district court’s finding that appellants failed to satisfy a condition precedent,
and because the record supports the district court’s findings, we decline to remand for a
determination of whether respondent breached the statutorily implied promise of good faith
in agricultural contracts.
Lastly, appellants do not advance any arguments on appeal relating to the dismissed
misrepresentation and estoppel claims. The district court correctly dismissed those claims
because the alleged misrepresentations occurred after appellant s failed to satisfy a
condition precedent to respondent’s obligations under the Agreement.
Affirmed.