First National Bank Of Omaha v. Three Dimension Systems Products, Inc

289 F.3d 542 (2002)

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Nature of the Case

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Facts

P and D entered into a series of written agreements for D to develop, customize, and deliver three software computer programs to P. Two of the programs, known as PPS and Teller, were successfully installed and are not the subject of a dispute. Platform is the third program subject to this dispute. D delivered Stage I of Platform along with a demand for $250,000 in extra payment. D informed P that it would not be fixing any errors in Stage I after delivery. P sued D for anticipatory breach. P claimed that D breached by refusing to 'performance test' that part of the program, and demanding the payment of $250,000 as a condition of its continued performance. P counterclaimed for breach of contract by P, copyright infringement, and conversion. D claimed that P had not given D a chance to cure. P presented evidence over the fixing period, the extra invoice, and that D had orally indicated Stage 1 errors would not be fixed until Stage III or IV, if at all and certainly nothing would be done without payment of the extra invoice. P’s evidence showed that the extra invoice was not authorized. D claimed it would have fixed the issued at later stages and continued performance was not conditioned on the extra payment. P got the verdict. The court granted D's motion for judgment as a matter of law, which had been taken under advisement at the close of all the evidence. P appealed.