Contracts: Nonperformance-Spoliation-Parol Evidence

Where appellant, a software developer, challenged the rejection of its breach-of-contract claim in a dispute arising from a contract for the creation of a custom website for a real estate brokerage company, arguing that the trial court erred in denying its motion for adverse inference, the trial court did not err in applying the doctrine of spoliation because the appellant failed to prove that the respondent either had a duty to preserve all emails or intentionally destroyed emails, and the judgment is affirmed because the court properly considered parol evidence regarding the parties’ contemplated time for performance under the contract and determined that the appellant breached by failing to provide timely company and agent websites, and the court did not err by declining to apply the doctrines of waiver and frustration of performance to excuse the nonperformance.

Judgment is affirmed.

Tribus LLC v. Greater Metro Inc. (MLW No. 74168/Case No. ED107460 – 34 pages) (Missouri Court of Appeals, Eastern District, Hess, J.) Appealed from circuit court, St. Charles County, Cunningham, J. (John C. Drake and Gregory C. Mollett for appellant) (Caitlin L. Stayduhar, Jill R. Rembusch, Daniel J. Welsh and Stephen C. Hiotis for respondent).