IN THE COURT OF APPEALS OF IOWA
No. 15-1711
Filed December 21, 2016
CONNIE KUNZ,
Plaintiff-Appellee,
vs.
ROBERT KUNZ,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Lee County (South), Mary Ann
Brown, Judge.
Robert Kunz appeals from a jury verdict in favor of Connie Kunz in her
breach-of-contract action. REVERSED AND REMANDED.
James F. Dennis, Keokuk, for appellant.
Curtis R. Dial of the Law Office of Curtis Dial, Keokuk, for appellee.
Heard by Danilson, C.J., and Doyle and McDonald, JJ.
2
MCDONALD, Judge.
Robert Kunz appeals from a jury verdict in favor of Connie Kunz in this
breach-of-contract action. He contends the settlement memorandum signed by
Connie and him were only preliminary negotiations and not a binding agreement.
Even if it was a binding agreement, his obtaining financing was a condition
precedent that did not occur. He challenges the court’s refusal to give his
proposed jury instructions regarding the condition precedent. He also challenges
the district court’s decision to allow evidence regarding his personal finances.
I.
Richard Kunz and Robert Kunz, brothers, started a business in 1973
called Happy Homes, Inc., which sold factory-built homes. This was a “family
business,” and Richard’s wife, Connie, and Robert’s wife, Dorothy, were actively
involved. Richard and Robert jointly owned the business and 9.7 acres of real
estate upon which Happy Homes was located. In 2007, Richard died, and his
interest in Happy Homes went to Connie. In 2008, Connie and Robert began
discussing the sale of the business. Initially, Connie was interested in
purchasing Robert’s share of the business and continuing to operate Happy
Homes with her son, Denton. Connie and Robert eventually entered mediation,
and, on April 23, 2010, Connie, Robert, Dorothy, and their respective attorneys
all signed a document entitled “Settlement Memorandum.”
The Settlement Memorandum stated,
1. Robert will purchase Connie’s shares of stock in Happy
Homes, Inc. for the sum of $250,000.00 including the real estate
owned jointly by Connie and Robert and Dorothy. Curtis Dial and
Hubert Staff [attorneys] will prepare all detailed agreements
necessary for the purchase of the corporate stock and the real
3
estate. The escrow fund is to be intact as to be verified by the
accountant. This agreement is subject to Robert Kunz being able
to arrange financing for this purchase.
2. All of Connie’s shareholder debt will be canceled.
3. Robert will seek to obtain a release by the bank on
individual guarantees of corporate indebtedness by Connie.[1]
4. Robert agrees to indemnify Connie against corporate debt
per the agreement prepared by the attorneys.
5. The real estate will be conveyed using normal real estate
purchase and sale closing procedures. It is anticipated or expected
that this matter will be closed within forty-five (45) days of this date.
6. Included in this agreement is the agreement of Robert to
take over ownership of the individual homes owned by Connie and
assume the debt on those homes.
7. Connie will receive the 1997 Chevrolet C-10 truck formerly
used by Richard.
8. The parties agree to take all action and execute all
documents necessary to effectuate this agreement.
On June 2, 2010, Robert’s attorney notified Connie’s attorney Robert and
Dorothy “have been unsuccessful in obtaining a loan” and would not proceed
with the purchase.
On June 28, 2010, Connie filed a breach-of-contract suit against Robert
and Dorothy, which she subsequently dismissed without prejudice. On February
17, 2011, Robert and Dorothy filed suit against Connie for partition and
liquidation of Happy Homes. The modular homes, real estate, and other assets
of Happy Homes were sold at auction on May 5, 2012. Robert purchased the
1997 Chevrolet C-10 truck for $4000. The original purchaser of the real estate
bid $160,000 but backed out, forfeiting a $16,000 down payment. Robert then
purchased the real estate from Happy Homes. The proceeds from the sales of
Happy Homes assets ($251,066.47) were placed in a trust account, outstanding
loans to State Central Bank were paid off, as were attorney fees and other items,
1
Connie had personally financed some of the model homes for Happy Homes with State
Central Bank.
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and, on October 25, 2012, $88,225.88 was distributed each to Connie and
Robert.
Connie thereafter reinitiated her suit against Robert and Dorothy for
breach of the settlement memorandum, seeking the difference between what she
received from liquidation of the company and the purchase price set forth in the
settlement memorandum. Dorothy was later dismissed as a party.
On July 7, 2015, Robert filed a motion in limine asking that the court
exclude his personal financial statement as irrelevant. The court denied the
motion noting,
One of the issues in this case will be whether [Robert] complied
with the terms of a contract that he “arrange financing” to make a
payment to [Connie]. Counsel agreed that one of [Robert’s]
defenses to not completing the terms of the contract was that he
was not able to arrange financing. As a result the Court can
envision how his financial condition would be relevant to a trier of
fact to evaluate on whether he had been able to “arrange financing”
to complete payment of the contract obligations.
At trial, Connie testified Robert agreed at mediation to buy her interest in
the real estate and business for $250,000 and that he would obtain a release of
her individual guarantees of corporate indebtedness. She considered the
Settlement Memorandum a contract. She acknowledged she had received three
checks2 from the liquidation of Happy Homes’ assets and that she had been
released from liability on Happy Homes’ indebtedness. Connie asked that she
2
The first was in November 2012 in the amount of $88,225.88; the second on
September 9, 2013, in the amount of $52,417.40, which was Connie’s half of the
proceeds after Robert purchased the Happy Homes real estate; and the final check on
March 13, 2014, in the amount of $15,128.50 after all Happy Homes’ business dealings
were finalized.
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be awarded the difference between the $250,000 promised and what she had
already received.3
In January 2010, Robert’s financial statement with his bank, State Central
Bank, indicated his net worth was over $2,720,000. Robert agreed he had
signed the settlement memorandum and “agreed to purchase Connie’s interest in
the business and the real estate for $250,000, and she would also get the truck
she wanted.” Robert testified he went to his bank and sought financing to pay
Connie, offering the assets of Happy Homes as collateral. He did not offer his
personal family assets as collateral because “personal family assets and this
does not get mixed in with a business.” He also stated he went to a distant
relative, who was a banker in Illinois, and asked for a loan and was denied. He
did not fill out a loan application at either bank.
Robert also testified as follows:
Q. Did you ever attempt to use your personal finances to
obtain a loan? A. No, I did not.
Q. And would you agree that had you used your personal
finances, you could have obtained financing? A. I wouldn’t say
that.
Q. Well, you could have paid for it yourself, couldn’t you? A.
No, I couldn’t have.
Q. Did you purchase the real estate that Happy Homes had
been on at the auction? A. Yes, I did.
Q. Did you get a loan for that? A. No, I just took it out of the
proceeds.
Q. What do you mean, the proceeds? A. The sale of the
buildings.
Q. The auction? A. The houses, tools and everything, my
half.
3
Connie contended she was owed about $96,000. Robert contended she had been
paid $16,000 more than she acknowledged. The jury found Connie was owed just over
$80,000, apparently giving credence to the additional payment. Connie does not appeal
the amount of the judgment.
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Q. So when that real estate was purchased by you, you did
not need any kind of loan for that at all? A. I think I might have had
a loan on it.
Q. Who did you get the loan from? A. Family.
Q. What family? A. I don't think that’s necessary.
Q. Well, you paid a hundred thousand dollars for real estate,
right? A. Yes.
Q. Over a hundred thousand, didn’t you? A. A little over.
Q. And you got a loan from a family member? A. (No
audible response.)
Q. Yes? A. Yes.
Q. But you couldn’t go to that family member and get a loan
to purchase Happy Homes from Connie? A. No.
Q. All right. So after you made the two attempts, meeting
with Scott Piper and then meeting with your distant relative in Lima
[Steve Harms], you made—that’s all the attempts you made to
finance the business? A. That’s correct.
Robert acknowledged he did not go to other banks in the area seeking financing.
Nor did he use “the $168,000 cash on hand” to get a loan.
Scott Piper at State Central Bank testified he denied Robert’s request for a
loan of $250,000 because Robert wanted the loan secured by Happy Homes’
real estate and “the mobile homes that were left,” and Piper was “concerned” the
depreciated inventory would not be sufficient collateral. Piper also testified he
would have been aware of Robert’s financial statement and financial assets, and
Robert could have offered to use his personal finances to secure a loan but did
not. Piper testified:
Q. And you were aware they had pretty substantial financial
assets? A. I knew they had a farm, uh-huh.
Q. Well, did you have the net worth statement that indicated
their net worth was $2,720,348? A. Probably did. I—that was a
long time ago.
....
Q. Those are pretty sound financial investments, right? A.
Well, those are—that’s a nice net worth—
Q. Sure. A. —yeah.
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Q. Especially if you secure it somehow with let’s say real
estate or property that you can take, if it doesn’t get paid? A. Right,
absolutely.
The court granted Robert’s request that the jury be instructed on his
claims of lack of consideration, waiver, and impossibility of performance.
However, the court rejected his requested two instructions concerning conditions
precedent. The jury returned special interrogatories finding there was a contract,
Robert had breached the contract, and Connie should be awarded $80,267.49.
Robert’s motion for judgment notwithstanding the verdict was denied, as was his
motion for new trial. Robert timely filed this appeal.
II.
We review actions tried at law for errors of law. Iowa R. App. P. 6.907.
Findings of fact in a law action are binding on us if supported by substantial
evidence. Iowa R. App. 6.904(3)(a). “When reasonable minds would accept the
evidence as adequate to reach the same findings, evidence is substantial.”
Easton v. Howard, 751 N.W.2d 1, 5 (Iowa 2008). We review refusals to give jury
instructions for correction of errors at law. Alcala v. Marriott Int’l Inc., 880 N.W.2d
669, 707 (Iowa 2016). Evidentiary rulings are reviewed for an abuse of
discretion. Giza v. BNSF Ry. Co., 843 N.W.2d 713, 718 (Iowa 2014). “A court
abuses its discretion when its ruling is based on grounds that are unreasonable
or untenable.” Id. (citation omitted).
III.
A.
Robert argues “the Settlement Memorandum was not a binding contract—
only an agreement to agree.” He maintains that because additional papers were
8
required to finalize the sale of real property and corporate stock, there was a
“strong inference” the parties did not intend to be bound.
“For a contract to be valid, the parties must express mutual assent to the
terms of the contract.” Schaer v. Webster Cty., 644 N.W.2d 327, 338 (Iowa
2002). “The contract terms must be sufficiently definite for the court to determine
the duty of each party and the conditions of performance.” Royal Indem. Co. v.
Factory Mut. Ins. Co., 786 N.W.2d 839, 846 (Iowa 2010). “Mutual assent is
present when it is clear from the objective evidence that there has been a
meeting of the minds.” Id. In deciding whether there is an enforceable contract,
we consider not only the language used but also the surrounding circumstances
and the conduct of the parties. McCarter v. Uban, 166 N.W.2d 910, 913 (Iowa
1969).
Viewing the evidence in the light most favorable to upholding the verdict
as we must, see Royal Indem. Co., 786 N.W.2d at 846, we conclude there is
substantial evidence in support of the verdict. The language of the settlement
memorandum repeatedly provides the parties reached an “agreement.”
Moreover, the actions taken after the parties signed the agreement provide
objective evidence of mutual assent. The parties agreed “to take all action and
execute all documents necessary to effectuate this agreement.” The parties’
attorneys began drafting the documents that would transfer Connie’s shares in
the company and achieve the real estate transfer. “[W]here parties have agreed
upon all essential facts there is a binding contract, notwithstanding the fact that a
more formal contract is to be prepared and signed later.” McCarter, 166 N.W.2d
at 914. Finally, Robert testified the parties had reached an agreement, but he
9
could not obtain financing necessary to perform. There is substantial objective
evidence to support the jury’s finding of a binding contract.
B.
Robert contends the district court should have provided an instruction on
the issue of condition precedent.4 The district court must give a requested jury
instruction if the instruction (1) correctly states the law, (2) has application to the
case, and (3) is not stated elsewhere in the instructions. Beyer v. Todd, 601
N.W.2d 35, 38 (Iowa 1999); see Deboom v. Raining Rose, Inc., 772 N.W.2d 1, 5
(Iowa 2009) (“It is error for a court to refuse to give a requested instruction where
it ‘correctly states the law, has application to the case, and is not stated
elsewhere in the instructions.’” (citation omitted)). “Parties are entitled to have
their legal theories submitted to the jury if they are supported by the pleadings
and substantial evidence in the record.” Beyer, 601 N.W.2d at 38. “When we
weigh the sufficiency of the evidence to support a requested instruction, we
review the evidence in the light most favorable to the party seeking the
instruction.” Weyerhaeuser v. Thermogas Co., 620 N.W.2d 819, 824 (Iowa
2000). “Error in giving or refusing to give a particular jury instruction does not
4
Error was preserved on the issue. The district court held a conference regarding the
instructions and specifically and unequivocally refused Robert’s proposed instructions
regarding condition precedent. The matter was raised again via posttrial motion, and the
district court denied the motion. Under these circumstances, error was preserved. See
Ostrem v. State Farm Mut. Auto. Ins. Co., 666 N.W.2d 544, 547-48 (Iowa 2003)
(explaining the court takes a “pragmatic view” to rule 1.924 and holding error is
preserved where the instruction was requested or objection made, the point of law or
question of fact was explained, and the district court ruled upon the matter); State v.
Wright, 274 N.W.2d 307, 312 (Iowa 1979) (holding error was preserved where objection
was made and proposed instructions were deemed “final” for purposes of error
preservation).
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merit reversal unless it results in prejudice to the party.” Wells v. Enter. Rent-A-
Car Midwest, 690 N.W.2d 33, 36 (Iowa 2004).
In Khabbaz v. Swartz, 319 N.W.2d 279, 283 (Iowa 1982), our supreme
court defined a condition precedent:
“Conditions precedent are . . . those facts and events, occurring
subsequently to the making of a valid contract, that must exist or
occur before there is a right to immediate performance, before
there is a breach of contract duty, before the usual judicial
remedies are available.” Mosebach v. Blythe, 282 N.W.2d 755, 759
(Iowa Ct. App. 1979); 3A Corbin on Contracts, § 628 at 16 (1960);
see 5 S. Williston, A Treatise on the Law of Contracts, § 666A at
141-44 (Jaeger ed. 1961). “A determination that a condition
precedent exists depends not on the particular form of words used,
but upon the intention of the parties gathered from the language of
the entire instrument.” Mosebach, 282 N.W.2d at 759.
Robert submitted two jury instructions on condition precedent, citing
Gildea v. Kapenis, 402 N.W.2d 457 (Iowa 1987):
[Proposed No. 3] Conditions precedent are those facts and
events occurring subsequent to the making of a valid contract that
must exist or occur before there is a right to immediate
performance and before there is a breach of contract duty and
before judicial remedies are available.
[Proposed No. 4] Where conditions precedent cannot be met
to satisfy the terms of the contract, the contract is void.
Under the circumstances, we conclude it was prejudicial error for the
district court to decline to give the instructions. See M.K. Metals, Inc. v.
Container Recovery Corp., 645 F.2d 583, 587–89 (8th Cir. 1981) (finding
prejudicial error where the court failed to give a condition precedent instruction);
see Deboom, 772 N.W.2d at 5. The proposed instructions correctly stated the
law and were not stated anywhere else in the instructions. See Beyer, 601
N.W.2d at 38. The instructions were supported by substantial evidence in the
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record. Specifically, the settlement memorandum specifically provided it was
“subject to Robert Kunz being able to arrange financing for this purchase.”
Robert testified he attempted to obtain financing from two lenders, one of which
had a years-long banking relationship with Robert and Happy Homes, and was
declined.
On appeal, the parties dispute whether Robert made a good faith effort to
fulfill the condition precedent (for example, should he have contacted additional
lenders, or was it enough to contact the lender with whom he had a longstanding
business relationship) and thus whether the parties had a duty to perform. See
Engstrom v. State, 461 N.W.2d 309, 314 (Iowa 1990) (“A contract imposes upon
each party a duty of good faith in its performance and enforcement.” (citing
Restatement (Second) of Contracts § 205 (1981)). It is the jury’s duty to resolve
factual questions, and the jury is free to believe or disbelieve the witnesses’
testimony. Estate of Hagedorn ex rel. Hagedorn v. Peterson, 690 N.W.2d 84, 88
(Iowa 2004) (“[T]he credibility of witnesses is peculiarly the responsibility of the
fact finder to assess.”). Whether Robert was able to “arrange financing” or made
a good faith effort to “arrange financing” is a question for the jury, and the district
court should have instructed the jury on the issue. In the absence of an
instruction on the issue, the jury was not able to resolve the fact question.
We hold the failure to give the condition precedent instruction was
prejudicial and requires a new trial.
C.
We choose to address an issue that might arise at retrial. Robert
maintains his personal finances were irrelevant to the issues at trial and the court
12
erred in allowing evidence of his personal assets. Robert’s personal finances
would be probative of whether he made a good faith effort to obtain financing.
The Settlement Memorandum was silent as to the means by which Robert would
arrange financing for the purchase of Connie’s interest in Happy Homes. Robert
argues the agreement did not require him to use his personal assets. Had
Robert wished to include such a condition upon his financing of the purchase of
Connie’s interest, he was free to do so. He did not. We will not read such a
condition into the parties’ agreement. Robert’s personal financial assets were
relevant to his ability to finance his purchase of Connie’s shares. We find no
error.
IV.
For the above stated reasons, we reverse the judgment of the district court
and remand for new trial.
REVERSED AND REMANDED.
Doyle, J., concurs; Danilson, C.J., partially dissents.
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DANILSON, Chief Judge. (concurring in part and dissenting in part)
I concur and agree with the majority except I part ways with the majority
on the issue of whether Robert was prejudiced by the failure to give his
requested instructions on condition precedent. Under the circumstances
presented here, I conclude the failure to give the requested instructions did not
prejudice Robert. I note the issue of whether Robert was able to arrange
financing was litigated at trial. Robert’s failure to obtain financing was urged as a
basis and in support of his defense of impossibility. The jury apparently rejected
Robert’s testimony he was not able to arrange financing. I also acknowledge the
distinct difference between impossibility and a good faith attempt. But it is
significant that Robert’s refusal to pledge any of his personal assets and his
attempt to obtain financing solely on the basis of the company’s assets was
undisputed. Moreover, it is clear the mediation agreement does not afford him
that privilege. A good faith attempt to obtain financing required he use any of his
assets as a pledge or security to obtain financing. I conclude the failure to
instruct the jury on conditions precedent was not prejudicial and does not
constitute reversible error.
I would add that Robert has failed to preserve error by failing to object to
the instructions in their final form. See Iowa R. Civ. P. 1.924.5 Robert did
5
Rule 1.924 provides, in part:
Before the argument to the jury begins, the court shall furnish counsel
with a preliminary draft of instructions which it expects to give on all
controversial issues, which shall not be part of the record. Before jury
arguments, the court shall give to each counsel a copy of its instructions
in their final form, noting this fact of record and granting reasonable time
for counsel to make objections, which shall be made and ruled on before
arguments to the jury. Within such time, all objections to giving or failing
to give any instruction must be made in writing or dictated into the record,
14
request jury instructions on condition precedent after the court provided its
preliminary draft instructions, which request was denied. He did not, however,
object to the final form of the instructions—leaving nothing to be considered on
appeal. See id.
out of the jury’s presence, specifying the matter objected to and on what
grounds. No other grounds or objections shall be asserted thereafter, or
considered on appeal.