## Facts

- A bank contracted with a software developer to develop, customize, and deliver three programs (PPS, Teller, and Platform) for the bank’s affiliates and customers.
- PPS and Teller were installed successfully; the dispute concerned the Platform program.
- After the developer delivered Stage I of Platform, a dispute arose over contract performance.
- The bank asserted the developer breached by refusing to conduct performance testing for Stage I and by demanding an additional $250,000 as a condition of continued performance, which the bank contended the contract did not require.
- The developer denied breach and asserted counterclaims for breach of contract by the bank, copyright infringement, and conversion.
- The contracts included provisions requiring notice and an opportunity to cure; the developer argued the bank terminated without providing the contractually required cure opportunity.
- A jury found the developer anticipatorily breached, justifying the bank’s termination.
- Post-verdict, the district court set aside the anticipatory-breach finding on judgment as a matter of law (JMOL), concluding no reasonable jury could find anticipatory breach.

## Issues

1. Whether sufficient evidence supported the jury’s finding that the developer’s conduct constituted anticipatory repudiation justifying termination.
2. Whether the district court erred by granting JMOL and overturning the jury’s anticipatory-breach verdict.
3. Whether an anticipatory repudiation excused the bank from contractual notice and opportunity-to-cure requirements.
4. Whether the district court erred in rulings that rejected or limited the developer’s counterclaims and related trial issues.

## Decision

- The court of appeals reversed the district court’s JMOL on anticipatory breach and reinstated the jury’s verdict for the bank.
- The court held that, viewing the evidence favorably to the verdict and drawing reasonable inferences for the bank, a reasonable jury could find anticipatory repudiation based on the developer’s refusal to proceed without an additional $250,000 not required by the contract and its refusal to provide required support and testing for Stage I.
- The court concluded that the jury could also reasonably find the repudiation justified termination and excused the bank from providing a contractual opportunity to cure.
- On the developer’s cross-appeal, the court largely affirmed adverse rulings on the developer’s counterclaims and related trial rulings.

## Legal Principles

- JMOL overturning a jury verdict is improper if a reasonable jury could find for the nonmovant when the evidence is viewed in the light most favorable to the verdict and reasonable inferences are drawn for that party.
- Anticipatory repudiation can be established by conduct that clearly communicates an intent not to perform essential contractual obligations, including conditioning further performance on demands not required by the contract.
- A party’s prior anticipatory repudiation may excuse the other party from contractual notice and cure obligations when the repudiation justifies immediate termination.

## Conclusion

The court of appeals reinstated the jury’s finding that the developer anticipatorily repudiated the Platform contract by refusing key performance obligations and conditioning continued work on extra-contractual payment, and held that this repudiation supported termination and excused the bank from contractual cure procedures; the developer’s counterclaims remained rejected.


First Nat’l Bank of Omaha v. Three Dimension Sys. Prods., Inc., 289 F.3d 542 (8th Cir. 2002)