The Gables at the Reserve Homeowners Association, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0002

The Gables at the Reserve Homeowners Association,
Respondent,

vs.

Advanced Home Improvement, LLC,
Appellant.

Filed November 7, 2022
Affirmed
Connolly, Judge

Hennepin County District Court
File No. 27-CV-20-5280

James A. Reichert, James A. Reichert, LLC, Minneapolis, Minnesota (for respondent)

Paul V. Kieffer, Kieffer Law Office, LLC, Minneapolis, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Connolly, Judge; and
Larkin, Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
Following a bench trial in this breach-of-contract action, appellant-contractor argues
that the district court erred in determining that approval of a sample deck was a condition
precedent to performance under the contract. We affirm.

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FACTS
The facts of this case are undisputed. In April 2018, appellant Advanced Home
Improvement, LLC (AHI) submitted a proposal to respondent The Gables at the Reserve
Homeowners Association (Association) for the removal and replacement of decking and
stairs and related work. The proposal called for a down payment, which consisted of one half
of the total proposed contract price. The proposal also provided that “AHI will complete all
construction within 10 weeks after approval of sample deck is finished.”
The Association’s management company, FirstService Residential (FirstService),
accepted the proposal on behalf of the Association and made the down payment on behalf of
the Association. AHI subsequently began building a sample deck. During construction of
the sample deck, AHI allegedly discovered additional rot, prompting AHI to submit a change
order, which increased the total contract price.
After AHI finished the sample deck, FirstService informed AHI that the Association’s
Board of Directors unanimously decided to terminate the contract “due to the scope of work
changes and lack of performance.” At about the same time, the Association received a fully
executed contract for the first time. The contract contains several handwritten notes added by
AHI, including one that states: “Need approval of sample deck, so we can continue!”
The Association commenced this action, alleging that the sample deck was not
approved because AHI’s workmanship was substandard. Thus, the Association claimed that
it was entitled to a refund of its down payment because the condition precedent to
performance under the contact was not satisfied. AHI responded, asserting a counterclaim
for breach of contract.
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Following a trial on written submissions, the district court found that photographs of
the sample deck show that “certain areas [of the deck] were unpainted and unfinished and that
the top board on the stairs does not match the rest of the boards.” (footnote omitted). The
district court then determined that “AHI had no obligation to perform its work and the
Association had no obligation to pay for the work until the occurrence of the condition
precedent— namely, the construction of a sample deck that received approval from the
Association.” The district court concluded that because “the condition precedent to
performance never occurred, the Association is not obligated to pay AHI under the terms of
the contract, and they are entitled to a refund of the down payment.” But the district court
also determined that “AHI is entitled to recover in quantum meruit for its construction of the
sample deck.” This appeal follows.
DECISION
AHI challenges the district court’s decision that approval of the sample deck was a
condition precedent to AHI’s performance under the contract. “Absent ambiguity, the
interpretation of a contract is a question of law.” Roemhildt v. Kristall Dev., Inc., 798
N.W.2d 371, 373 (Minn. App. 2011), rev. denied (Minn. July 19, 2011).
“A condition precedent is a contract term that calls for the performance of some act
or the happening of some event after the contract is entered into, and upon the performance
or happening of which the promisor’s obligation is made to depend.” Capistrant v.
Lifetouch Nat’l Sch. Studios, Inc., 916 N.W.2d 23, 27 (Minn. 2018) (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 “any fact or event, subsequent to
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the making of a contract, which must exist or occur before a duty of immediate performance
arises under the contract”). “[T]here are no particular code words needed to form an
express condition.” Carl Bolander & Sons, Inc. v. United Stockyards Corp., 215 N.W.2d
473, 476 (Minn. 1974). “[I]f the event required by the condition does not occur, there is
no breach of contract.” Capistrant, 916 N.W.2d at 27 (quotation omitted). The general
rule is that “conditions must be literally met or exactly fulfilled, or no liability can arise on
the promise qualified by the condition.” Id. at 27-28 (quotation omitted).
AHI asserts that the “parties concur [that] a contract was formed between the
parties.” But AHI argues that the district court was “incorrect” in concluding that the
“approval of the construction of the [sample] deck was a condition precedent” to the
performance of the contract. AHI contends that, instead, “[t]he condition precedent, if any,
was the performance of a condition (deck review) by [t]he [Association,] not [AHI].” AHI
claims that the Association “had a duty to accept or deny the deck so [AHI] could proceed
with the contracted work agreed to by [t]he [Association] with any modifications required,”
and, therefore, the district court incorrectly concluded that AHI did not satisfy the condition
precedent.
We are not persuaded. The contract provides that “AHI will complete all
construction within 10 weeks after approval of sample deck is finished.” This language is
unambiguous and plainly requires the Association’s approval of the sample deck before
construction of the remaining decks can begin. In fact, AHI’s brief concedes that the
Association “had a duty to accept or deny the deck so [AHI] could proceed with the
contracted work.” (Emphasis added.) As the district court determined, the contract’s
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language created a condition precedent to performance under the contract. See Nat’l City
Bank, 447 N.W.2d at 176 (defining a condition precedent as “any fact or event, subsequent
to the making of a contract, which must exist or occur before a duty of immediate
performance arises under the contract”). And the handwritten note on the contract signed
by AHI, which states: “Need approval of sample deck, so we can continue,” does not change
the contract. Rather, it simply reiterates the condition precedent.
AHI appears to contend that the Association breached the contract when it declined
to approve the sample deck. But no such breach occurred because the Association satisfied
its duty under the contract when it declined to approve the sample deck. And when the
Association declined to approve the deck, the condition precedent to further performance
was not satisfied. Thus, the district court did not err by concluding that the Association
did not breach the contract because the plain language of the contract created a condition
precedent that did not occur when the Association declined to approve the sample deck.
AHI further contends that the district court’s decision is erroneous because the
Association “failed to plead the existence of a condition precedent” as “required” by Minn.
R. Civ. P. 9.03. But it is well settled that this court generally only considers issues
presented to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580, 582
(Minn. 1988). As the Association points out, AHI has raised this issue for the first time on
appeal. Because this issue was never presented to or considered by the district court, it is
not properly before us.
Moreover, a review of the pleadings indicates that the Association properly pleaded
the existence of a condition precedent as required by rule 9.03. That rule provides: “In
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pleading the performance or occurrence of conditions precedent, it is sufficient to aver
generally that all conditions precedent have been performed or have occurred. A denial of
performance or occurrence shall be made specifically and with particularity.” Minn. R.
Civ. P. 9.03.
Here, paragraph 5 of the Association’s complaint states: “The contract on page 3
required construction of a sample deck which would then be approved by the management
company on behalf of the Board prior to commencement of the full scope of [the] work.”
(Emphasis added.) And paragraph 7 of the complaint provides: “The contract now
contained a handwritten note on page 3 below the sample deck approval language which
stated, ‘Need approval of sample deck, so we can continue!’ This evidences the
contingency of approval of the sample deck prior to the contract being performed.”
Paragraphs 5 and 7 of the Association’s complaint describe the condition precedent, which
was that approval of the sample deck by the Association must take place before AHI was
obligated to perform the under the contract. Accordingly, AHI cannot meet its burden to
show that the Association failed to properly plead the existence of a condition precedent as
required by rule 9.03.
Affirmed.