                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0791
                             Filed February 21, 2018


RONALD DWIGHT KUNDE,
    Plaintiff-Appellant,

vs.

ESTATE OF BOWMAN,
     Defendants-Appellees.
________________________________________________________________


       Appeal from the Iowa District Court for Jackson County, Nancy S. Tabor,

Judge.



       Appeal from the grant of the defendant’s motion for summary judgment.

REVERSED AND REMANDED.




       D. Flint Drake and Samuel M. DeGree of Drake Law Firm, P.C., Dubuque,

for appellant.

       Bradley T. Boffeli of Boffeli & Spannagel, P.C., Maquoketa, for appellees.



       Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.

Tabor, J., takes no part.
                                          2


MCDONALD, Judge.

         This case involves an option to purchase farmland allegedly orally granted

by one farmer to his neighbor. At issue in this case is whether the district court

erred in granting the defendant’s motion for summary judgment and dismissing the

plaintiff’s claim for promissory estoppel, quantum meruit, and unjust enrichment.

         This is the second time this matter has been before the court. In our prior

opinion, we succinctly set forth the material facts:

         Farmer Ronald Kunde claimed neighbor Arthur Bowman granted him
         an oral option to purchase his farm for approximately $3000 an acre
         at an unspecified time in the future. Kunde leased the Bowman farm
         and made substantial improvements to the property, which he
         alleged were consideration for the option to purchase.

Kunde v. Bowman, No. 15-1483, 2016 WL 5408356, at *1 (Iowa Ct. App. Sept. 28,

2016).

         Subsequent to the alleged grant of the option to purchase, Bowman sold

the property to a third person. See id. Kunde sued Bowman, asserting claims for

breach of contract and “equitable claims.” See id. The jury found in favor of Kunde

on his breach of contract claim and awarded damages, but the jury made no

findings on the equitable claims pursuant to the district court’s instructions. See

id. The district court granted Bowman’s motion for judgment notwithstanding the

verdict and denied Kunde’s motion for new trial. In our prior opinion, this court

affirmed the district court, determining there was not substantial evidence to

support the jury’s verdict on the contract claim. Specifically, this court found there

was no agreement on the essential terms of the purported option to purchase. See

id. at *2 (“The record lacks substantial evidence to support essential terms of the

contract, most notably the deadline for exercising the option to purchase the
                                          3


Bowman farm.”).      This court remanded the matter for new trial on Kunde’s

remaining equitable claims. See id.

       After remand, Bowman sought summary judgment on the equitable claims.

The summary judgment record showed Kunde entered into a series of written farm

lease agreements with Bowman. Several of the written farm lease agreements

included addendums governing the allocation of expenses for improvements. The

2008 lease addendum is representative:

       1. Any construction, removal, or maintenance of property fence
          lines will be rentor’s expense.
       2. Fence materials will be the landlord’s expense (including farm
          fence lines).
       3. Any construction, creation, or maintenance of cropland water
          ways or drainage areas will [be] rentor’s expense.
       4. Normal maintenance of the outbuilding will be at rentor’s
          expense. This includes demolition of obsolete buildings.
       5. Materials for maintenance of the outbuildings will be landlord’s
          expense. Tenant agrees to consult and discuss all repairs with
          the landlord prior to ordering of materials.
       6. Tenant agrees that all pasture and outside building areas will be
          cleaned and all trash removed from the premises.
       7. Any land moving equipment utilized for excavation or repairs will
          be rentor’s expense.

       The district court granted Bowman’s motion for summary judgment on all

claims. With respect to the estoppel claim, the district court concluded our prior

decision holding there was no agreement on material terms was the law of the

case and required dismissal of the estoppel claim for similar reasons. The district

court also concluded “the lease agreements do constitute an express contract

between the parties on the same subject matter . . . Thus, no implied contract can

be found from these facts. Without an implied contract, Kunde’s reliance on

promissory estoppel fails.” On the quantum meruit and unjust enrichment claims,

the district court found the claims must also fail without an implied contract theory.
                                        4


The court also articulated that the leases set forth Kunde’s rights and obligations

to the farmland and that he was compensated for improvements under the lease

by possession of the land and the net income produced by the crops he grew.

Kunde now appeals.

      This court reviews the district court’s summary judgment ruling for the

correction of legal error. See Kern v. Palmer Coll. of Chiropractic, 757 N.W.2d

651, 657 (Iowa 2008). “A party is entitled to summary judgment when the record

shows no genuine issue of material fact and that the moving party is entitled to a

judgment as a matter of law.” Id.; Iowa R. Civ. P. 1.981(3). When determining

whether there is a genuine issue of material facts, we view the record in the light

most favorable to the nonmoving party. See Kern, 757 N.W.2d at 657.

      We first address Kunde’s claims for quantum meruit and unjust enrichment.

Kunde’s theory with respect to these claims is he should be reimbursed for the

improvements he made to the property. Like the district court, we conclude these

claims fail as a matter of law. Bowman and Kunde had express agreements

governing improvements to the leasehold and allocating the expenses for the

same. Iowa adheres to “the principle that the remedy of unjust enrichment or

quantum meruit is based upon the concept of implied contract, and that in this

jurisdiction the law will not imply a contract where there is an express contract.”

Chariton Feed & Grain, Inc. v. Harder, 369 N.W.2d 777, 791 (Iowa 1985). “An

express contract and an implied contract cannot coexist with respect to the same

subject matter, and the former supersedes the latter.” See Legg v. West Bank,

873 N.W.2d 763, 771 (Iowa 2016) (quoting Chariton Feed & Grain, 369 N.W.2d at
                                          5


791). An express agreement regarding improvements and expenses precludes

Kunde’s equitable claims for recovery of the same.

       We next address Kunde’s claim for promissory estoppel. In this claim,

Kunde contends Bowman should be estopped from denying the option to purchase

the leased property and further contends he is entitled to expectation damages

related to the lost opportunity to purchase the property. Unlike Kunde’s other

claims, the existence of the written farm lease agreements does not preclude

recovery. It is established that an option to purchase need not be included in a

written lease agreement. See Levien Leasing Co. v. Dickey Co., 380 N.W.2d 748,

753 (Iowa Ct. App. 1985) (discussing a possible lease and separate option contract

on the same property). The summary judgment record, when viewed in the light

most favorable to Kunde, showed the parties intended the lease agreements and

the option to purchase to be separate and distinct. There is thus a genuine issue

of material fact to be resolved by the finder of fact. The district court erred in

concluding otherwise.

       The district court also erred in holding our prior decision precluded Kunde’s

promissory estoppel claim as a matter of law. To fully address this issue, we must

first address the development of the doctrine.

       The Iowa Supreme Court recognized and set forth the elements of a

promissory-estoppel claim in the seminal decision Miller v. Lawlor, 66 N.W.2d 267,

272 (Iowa 1954). The elements were: (1) “A clear and definite oral agreement;”

(2) “That plaintiff acted to his detriment solely in reliance on said agreement;” and

(3) “That a weighing of all the equities entitles plaintiff to the equitable relief of

estoppel.”   Id. at 273.    The given rationale for recognizing the claim was
                                          6

“‘[p]romissory estoppel' is . . . a recognized species of consideration.” Id. at 272.

In other words, promissory estoppel was a consideration substitute.             Miller

remained controlling law until 1999.

       In 1999, in Schoff v. Combined Insurance Company of America, 604

N.W.2d 43, 48 (Iowa 1999), the supreme court moved away from the theory that

promissory estoppel was merely a consideration substitute, recognizing the

consideration-substitute theory had been subject to doctrinal criticism. See, e.g.,

Eric Mills Holmes, Restatement of Promissory Estoppel, 32 Willamette L. Rev. 263,

380 (1996) (“Particularly troublesome is the requirement of a ‘clear and definite

agreement,’ which appears to be a reversion to the antediluvian notion that

promissory estoppel is only a substitute for consideration and requires a complete,

integrated agreement rather than reliance on a promise.”). In expanding the

doctrinal foundations of promissory estoppel, the Schoff court identified the

following elements of the claim: “(1) a clear and definite promise; (2) the promise

was made with the promisor’s clear understanding that the promisee was seeking

an assurance upon which the promisee could rely and without which he would not

act; (3) the promisee acted to his substantial detriment in reasonable reliance on

the promise; and (4) the injustice can be avoided only be enforcement of the

promise.” Id. at 49. The court stated a promise is “[a] declaration . . . to do or

forbear a certain specific act.” Id. at 50–51. “A promise is ‘clear’ when it is easily

understood and is not ambiguous.” Id. at 51. A promise is “definite” when the

assertion is explicit and without any doubt or tentativeness. Id.

       The supreme court reaffirmed Schoff several years later in Kolkman v. Roth,

656 N.W.2d 148, 153 (Iowa 2003). In that case, the court traced the development
                                          7


of promissory estoppel and found “promissory estoppel is not only a substitute for

consideration, but is also recognized as an exception to the statute of frauds even

in cases where the promise may be supported by consideration.” Kolkman, 656

N.W.2d at 153. The doctrine “focuses on reliance.” Id. When affirming the Schoff

test, the court noted “[t]he doctrine of promissory estoppel does not eviscerate the

statute of frauds, but only applies to circumvent the statute when necessary to

prevent an injustice.” Id. at 156. “We require strict proof of all the elements. This

includes strict proof of a promise that justifies reliance by the promisee.” Id.

       Since Kolkman, our courts have been inconsistent in analyzing claims of

promissory estoppel. Some of our cases have used the three-element test set

forth in Miller but rejected in Schoff. See, e.g., McKee v. Isle of Capri Casinos,

Inc., 864 N.W.2d 518, 532 (Iowa 2015); Bundy v. Memberselect Ins. Co., No. 16-

1189, 2017 WL 104964, at *3 (Iowa Ct. App. Jan. 11, 2017); In re Marriage of

Renes, No. 12-1136, 2013 WL 1453061, at *1 (Iowa Ct. App. Apr. 10, 2013); In re

Marriage of Smith, No. 08-0819, 2009 WL 928790, at *3 (Iowa Ct. App. Apr. 8,

2009); In re Marriage of Streif, No. 07-0540, 2007 WL 2965153, at *3 (Iowa Ct.

App. Oct. 12, 2007); In re Marriage of Ruby, No. 06-0670, 2007 WL 108892, at *2

(Iowa Ct. App. Jan. 18, 2007); Wasker v. McDonald, No. 04-1521, 2006 WL

126773, at *6 (Iowa Ct. App. Jan. 19, 2006); In re Marriage of Arns, No. 03-0724,

2004 WL 573801, at *3 (Iowa Ct. App. Mar. 24, 2004); Campbell v. Waverly Tire

Co., No. 02-1948, 2003 WL 23008846, at *4 (Iowa Ct. App. Dec. 24, 2003); In re

Marriage of Barry, No. 02-0240, 2003 WL 1968635, at *3 (Iowa Ct. App. Apr. 30,

2003). Some of our cases have used the four-element test set forth in Schoff and

Kolkman. See, e.g., In re Estate of Beitz, No. 14-1492, 2015 WL 3624475, at *1–
                                         8

2 (Iowa Ct. App. Jun. 10, 2015); Stenoien v. Stenoien, No. 13-1044, 2014 WL

3749374, at *9 (Iowa Ct. App. July 30, 2014); Jongma v. Grand Pork, Inc., No. 08-

1640, 2009 WL 3381518, at *5 (Iowa Ct. App. Oct. 21, 2009); Moonsammy v.

Mercy Hosp., No. 08-1638, 2009 WL 2525500, at *5 (Iowa Ct. App. Aug. 19, 2009);

Chamberlain L.L.C. v. City of Ames, No. 06-1487, 2007 WL 4322186, at *6 (Iowa

Ct. App. Dec. 12, 2007); Akers v. Oak Hill Plantation, L.C., No. 07-0318, 2007 WL

4191959, at *2 (Iowa Ct. App. Nov. 29, 2007); Callahan Const., Inc. v. Weidemann,

No. 05-1207, 2006 WL 1750375, at *4–5 (Iowa Ct. App. Jun. 28, 2006). While

other cases cite the four-part test but use the clear-and-definite-agreement

standard from Miller rather than the clear-and-definite-promise standard from

Schoff and Kolkman. See, e.g., Mujkic v. Lynx, Inc., No. 14-0636, 2015 WL

1055307, at *6 (Iowa Ct. App. Mar. 11, 2015); Deck v. Betka, No. 12-0822, 2013

WL 99123, at *1 (Iowa Ct. App. Jan. 9, 2013); Byl v. Van Beek, No. 11-0802, 2012

WL 299529, at *2 (Iowa Ct. App. Feb. 1, 2012).

      After reviewing the precedents, this court is convinced the four-part test set

forth in Schoff and Kolkman is the controlling authority notwithstanding the

supreme court’s recent use of the three-part test in McKee. McKee cited Schoff

for this proposition, but McKee cited the portion of Schoff discussing the prior

standard, See McKee, 864 N.W.2d at 532, which the Schoff court then rejected

later in the opinion. McKee’s recitation of the three-element test seems inadvertent

in contrast to the deliberate expansion of the doctrine in Schoff and Kolkman.

Under Schoff and Kolkman, Iowa courts no longer treat promissory estoppel as a

mere consideration substitute. Instead, the claim allows for a remedy upon strict

proof of each of the four elements, including a clear and definite promise even
                                           9


where the promise does not rise to a clear and definite agreement that would

otherwise establish a contract but for the lack of consideration. See Kolkman, 656

N.W.2d at 153.

       With that background, we turn to the case at hand. The district court

concluded our prior opinion was preclusive because it held there was not a clear

and definite agreement on material terms to a contract. As noted above, however,

it is immaterial whether the parties had a clear and definite agreement. What is

material is whether one party made “a clear and definite promise.” See id. at 156

(finding promissory estoppel requires “strict proof of a promise that justifies

reliance by the promisee.”); Dixon v. Wells Fargo Bank, N.A., 798 F.Supp.2d 336,

343 (D. Mass. 2011) (“[Promissory estoppel] now ‘provides a remedy for many

promises or agreements that fail the test of enforceability under many traditional

contract doctrines’ but whose enforcement is ‘necessary to avoid injustice.’”

(internal citations omitted)); Kiely v. St. Germain, 670 P.2d 764, 767 (Colo. 1983)

(“[P]romissory estoppel is not defined totally in terms of contract principles. . . . It

is often appropriate when parties have not mutually agreed on all the essential

terms of a proposed transaction.”); Rosnick v. Dinsmore, 457 N.W.2d 793, 749

(Neb. 1990) (“[T]here is no requirement of ‘definiteness’ in an action based upon

promissory estoppel. . . . Promissory estoppel only requires that reliance be

reasonable and foreseeable.”); Hoffman v. Red Owl Stores, Inc., 133 N.W.2d 267,

275 (Wis. 1965) (“We deem it would be a mistake to regard an action grounded on

promissory estoppel as the equivalent of a breach of contract action.”).

       Here, when the correct elements are analyzed, there is a disputed issue of

material fact. Kunde contends Bowman made an explicit promise to sell the
                                        10


property for $3000 per acre. He also contends this can be inferred from Bowman’s

statements. The promise was not conditioned upon any event. The summary

judgment record shows Kunde may have undertaken improvements to the property

in reliance on that promise. While there may ultimately be insufficient evidence in

support of the claim, when the summary judgment record is viewed in the light

most favorable to Kunde, there is at least a disputed issue of material fact to be

resolved at trial.

       For these reasons, we conclude the trial court erred in granting the

summary judgment motion as to the promissory estoppel claim.

       REVERSED AND REMANDED.

       Potterfield, J., concurs; Vaitheswaran, P.J., dissents.
                                          11


VAITHESWARAN, Presiding Judge (dissenting)

       I respectfully dissent. The district court cited and applied the Iowa Supreme

Court’s most recent pronouncement on the elements of promissory estoppel,

McKee v. Isle of Capri Casinos, Inc., 864 N.W.2d 518, 532 (Iowa 2015). McKee

sets forth the elements of the theory as “(1) a clear and definite oral agreement;

(2) proof that plaintiff acted to his detriment in reliance thereon; and (3) a finding

that the equities entitle the plaintiff to this relief.” Id. (quoting Schoff v. Combine

Ins. Co. of Am., 604 N.W.2d 43, 48 (Iowa 1999)); see also Budny v. MemberSelect

Ins. Co., No. 16-1189, 2017 WL 104964, at *3 (Iowa Ct. App. Jan. 11, 2017).

Under this recitation of the elements, I would conclude the district court correctly

granted Bowman summary judgment on the promissory estoppel claim.
