                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1625
                              Filed July 22, 2015


JERRY’S HARDWARE, L.L.C.,
     Plaintiff-Appellee/Cross-Appellant,

vs.

HILLCREST PARTNERS, a general partnership,
CHARLES A. RUHL JR., and STEVEN FRY,
     Defendant-Appellants/Cross-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Marlita A. Greve

(Settlement Conference; First and Second Motions to Continue), J. Hobart

Darbyshire (Third Motion to Continue), Henry Latham (Fourth Motion to

Continue), and Mary E. Howes (Trial and Post-Trial Motions), Judges.



      Hillcrest Partners, Charles Ruhl, and Steven Fry appeal the district court’s

ruling awarding Jerry’s Hardware, L.L.C. damages after breach of the parties’

lease agreement. AFFIRMED ON APPEAL; AFFIRMED ON CROSS-APPEAL.



      Gary D. McKenrick of Cartee & McKenrick, P.C., Davenport, for

appellants.

      Elliott R. McDonald III and Ryan F. Gerdes of McDonald, Woodward

& Carkson, P.C., Davenport, for appellee.



      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
                                          2


POTTERFIELD, J.

       Hillcrest Partners, Charles Ruhl, and Steven Fry (collectively “Hillcrest”)

appeal the district court’s ruling awarding Jerry’s Hardware, L.L.C. (“Jerry’s”)

damages after Hillcrest’s breach of the parties’ lease agreement. Jerry’s cross-

appeals the denial of two categories of claimed damages.

       I. Factual and Procedural Background

       On June 29, 2009, Jerry Richard, the owner of Jerry’s, and Hillcrest

signed a letter of intent to lease a retail unit of Hillcrest’s upcoming Crown Ridge

Plaza (Phase II) construction project. Jerry intended to rent a unit in which he

would open an Ace Hardware store. The parties entered into a lease agreement

on October 1, 2009. The lease agreement included the following terms:

                                         3.
                                       TERM
              . . . The “Commencement Date” of the Term of this Lease
       shall be the date of substantial completion of the Premises . . . ,
       which is expected to be on or about March 5, 2010. In the event
       the Premises is not substantially completed by such date, Tenant
       shall receive one (1) day of abated Base Rent for each day after
       March 5, 2010 until the Premises is substantially completed. In the
       event the Premises is not substantially completed on or prior to
       March 12, 2010, Tenant shall receive two (2) days of abated Base
       Rent for each day after March 12, 2010, until the Premises is
       substantially completed. . . .
              ....
                                        38.
                            CONDITIONS PRECEDENT
              The parties’ performance and obligations under this Lease
       are subject to the following conditions [precedent]:
              A) The Landlord’s acceptance shall be subject to the
       Landlord securing financing for Crow Ridge Phase II at terms
       acceptable to Landlord on or before September 1, 2009.[1]


1
 The deadlines and the conditions were incorporated directly from the letter of intent.
The deadlines had passed when the lease itself was signed. If any of the conditions
                                            3


               B) The Tenant’s acceptance shall be subject to Tenant
       securing financing for Tenant’s business need at terms acceptable
       to Tenant on or before September 1, 2009.
               C) The Tenant’s acceptance shall be subject to Tenant’s
       approval by Ace Hardware Corporation to operate an Ace
       Hardware store in the premises on or before August 2, 2009.
               The parties agree to use all commercially reasonable efforts
       in satisfying the above conditions. If any of the conditions are not
       satisfied or waived on or before the dates set forth above, this
       Lease may be terminated by such party upon written notice to the
       other.[2]

       After signing the lease agreement, Jerry began to make arrangements to

move into the leased space by developing the store’s floor plan with Ace

Hardware representatives and by purchasing fixtures, equipment, and inventory

for the store at a lump sum cost of $100,000. Jerry made Hillcrest aware of the

impending purchases at the time the parties entered into the lease. The fixtures,

equipment, and inventory were put in storage pending the completion of

construction.

       Hillcrest never began construction. On May 14, 2010, Jerry sent a letter

through his attorney to Hillcrest requesting an explanation for Hillcrest’s failure to

begin construction.      The letter explicitly noted Jerry was “not interested in

exercising his option to terminate the lease.” Hillcrest did not respond to the

letter. On September 7, 2010, Jerry sent a second letter through his attorney to

Hillcrest itemizing his losses resulting from Hillcrest’s failure to perform. Hillcrest




were not met, the parties were permitted to terminate their agreement but not
contractually prohibited from entering into the lease agreement on October 1, 2009.
2
  Because this clause is expressly permissive, the three conditions in the lease are not in
fact conditions precedent, which are not permissive, in spite of the lease’s misuse of the
legal term.      See Khabbaz v. Swartz, 319 N.W.2d 279, 284 (Iowa 1982)
(“Nonperformance of a condition precedent vitiates a contract or a proposed contract.”).
                                              4


did not respond to the second letter.3 Nor did Hillcrest exercise its option to

terminate the agreement.

       Jerry eventually leased an alternate location on January 20, 2012, to

“mitigate [his] losses.” The new location is less visible and sees less incidental

traffic than the planned Crown Ridge Plaza location. Additionally, the Crown

Ridge Plaza location was to be constructed according to particular electrical

specifications to support Ace Hardware requirements. When Jerry leased the

new location, he was required to pay out-of-pocket to have the location’s

electrical system retrofitted to match those requirements at an expense of

$26,000.

       Some of the fixtures, equipment, and inventory that Jerry had purchased

in anticipation of a March 2010 opening did not comply with Ace Hardware’s

requirements for new stores in 2012. Jerry was required to purchase a new paint

system at an expense of $9000 and new signage, shelving, point of sale

systems, and other equipment at a cost of $38,666.28.                   He had also paid

unanticipated storage costs starting on March 5, 2010, when he had planned on

removing his inventory from storage and moving it into the Crown Ridge Plaza

location.    The additional storage lasted nearly two years and cost Jerry

$26,778.49.

       Jerry’s filed suit against Hillcrest on January 2, 2013. A bench trial was

scheduled for December 10, 2013. Hillcrest filed a motion to continue the trial on

3
  Hillcrest sent a letter to Jerry to “update [him] on the positive progress” made on the
Crow Ridge Plaza project. The letter does not substantively respond to either of Jerry’s
letters. Hillcrest’s letter is not dated, but the substance of the letter indicates it was sent
after November 1, 2010.
                                             5


October 21, 2013, claiming it had some indication from Jerry’s that it might not

continue to pursue the action.4 On November 7, the district court denied the

motion, but it did continue discovery deadlines to allay the concerns of Hillcrest’s

counsel. On November 14, 2013, Hillcrest’s counsel moved to withdraw from the

case after a previously unnoticed conflict of interest came to light. At the same

time, Hillcrest moved again to continue the trial. On November 19, the district

court granted the motion to withdraw but denied the motion to continue, finding,

“Defendants still have enough time and have had enough time to obtain other

legal counsel and proceed with this case, which is relatively uncomplicated.”

Hillcrest waited until December 2—nearly two weeks after the district court’s

most recent denial of a continuance—to first meet with the counsel that it

ultimately retained for trial.     Hillcrest’s new counsel filed a third motion to

continue on December 3, 2013.            The district court denied the motion.          On

December 10, the day of trial, Hillcrest again moved for a continuance.

Hillcrest’s counsel argued in support of the motion, “I am simply not prepared to

adequately defend the Defendants in connection with this litigation.” The district

court granted the fourth motion to continue and continued the trial to January 31,

2014.

        A bench trial took place over two days, January 31 and February 13,

2014. The only witness testimony came from Jerry, his wife, Ruhl, and Fry. The


4
   Jerry’s concedes its counsel made a “passing remark” in May 2013 that Jerry’s might
not pursue the action if Hillcrest returned its $10,000 deposit. However, Hillcrest did not
return the deposit as requested, and it in fact retained the deposit until the court ordered
it to return the money to Jerry’s. These circumstances do not excuse Hillcrest’s claimed
failure to prepare for trial as scheduled.
                                         6


district court found Hillcrest had breached the lease agreement and Jerry’s was

entitled to $100,444.77 in damages, the sum of the unexpected storage costs,

the costs of retrofitting the electrical system in the new location, the cost of the

new paint system, and the cost of other new equipment.

       Hillcrest appeals, claiming the district court abused its discretion in thrice

denying its motions for continuance, the district court erred in concluding the

lease agreement was enforceable, and the district court erred in finding the

damages awarded were caused by the alleged breach. Jerry’s cross-appeals,

claiming the district court erroneously denied its request to award liquidated

damages arising from the rent-abatement clause of the lease and the district

court erroneously denied its claim for damage to stored equipment, inventory,

and fixtures.

       II. Standards of Review

       We review the denial of a motion for continuance for an abuse of

discretion. Hawkeye Bank & Trust, Nat’l Ass’n v. Baugh, 463 N.W.2d 22, 26

(Iowa 1990). A district court abuses its discretion only when it exercises that

discretion “on grounds or for reasons clearly untenable or to an extent clearly

unreasonable.” Hawkeye Bank & Trust Co. v. Michel, 373 N.W.2d 127, 129

(Iowa 1985).

       We review breach-of-contract actions for errors at law.           See Land

O’Lakes, Inc. v. Hanig, 610 N.W.2d 518, 522 (Iowa 2000). Matters of contract

construction are reviewed at law. See Pillsbury Co., Inc. v. Wells Dairy, Inc., 752

N.W.2d 430, 435–36 (Iowa 2008). All other claims on appeal and cross-appeal

challenge the district court’s award of damages arising from Hillcrest’s breach of
                                           7


contract. “The trial court’s findings of fact have the effect of a special verdict and

are binding if supported by substantial evidence.” Land O’Lakes, 610 N.W.2d at

522; see Iowa R. App. P. 6.904(3)(a). “Evidence is substantial for purposes of

sustaining a finding of fact when a reasonable mind would accept it as adequate

to reach a conclusion.” Falczynski v. Amoco Oil Co., 533 N.W.2d 226, 230 (Iowa

1995).

         III. Claims on Appeal

         Hillcrest raises three issues on appeal.

                A. Motions to Continue

         Hillcrest first claims the district court abused its discretion in denying

multiple motions to continue the trial. We disagree. When a party moves to

continue a trial, alleging a cause not stemming from the movant’s own fault or

negligence, the court must determine whether substantial justice will be more

nearly obtained by granting the request. Baugh, 463 N.W.2d at 26.

         As to the first motion to continue, the district court determined there was

sufficient time before trial would commence—more than a month—for Hillcrest

and its counsel to prepare. The court continued discovery deadlines to ensure

the parties would be able to ready themselves for trial. As to the second motion,

the parties still had three weeks to prepare for trial when the court denied the

continuance.      Substantial justice did not require a continuance in these

circumstances in which the parties had sufficient preparation time before trial.

Following the denial of the second motion, Hillcrest waited two weeks before

meeting with its new counsel. In these circumstances, the district court acted
                                             8


within its discretion in denying the third motion to continue. The district court did

not abuse its discretion in denying any of these motions to continue trial.

          Furthermore, Hillcrest’s claim that the district court’s denials of more time

did not allow for “meaningful trial preparation” is undermined by the fact that the

district court ultimately did grant a fifty-two day extension, giving Hillcrest and its

counsel additional time to prepare. The district court did not abuse its broad

discretion in its determinations on Hillcrest’s multiple motions to continue the

trial.5

                B. Enforceability of Lease Agreement

          Hillcrest next claims the lease agreement was not enforceable. It claims

none of the scheduled threshold conditions, labeled conditions precedent, were

satisfied. However, the plain terms of the contract state, “If any of the conditions

are not satisfied . . . this Lease may be terminated by such party upon written

notice to the other.” The nonsatisfaction of the conditions clearly vests in the

parties a permissive right to terminate the contract in writing. The record is clear

that neither party terminated the lease in writing. Jerry explicitly reserved his

option not to terminate in the letter sent to Hillcrest through his attorney, and

Hillcrest, even on appeal, maintains it “continued to pursue financing for the




5
  Hillcrest claims the abuse of discretion was manifest in its own failure to designate its
expert witness according to the time-frame requirements or Iowa Rule of Civil Procedure
1.508(3). This assertion, along with Hillcrest’s failure to retain counsel for two weeks
following the denial of its second motion for continuance, are Hillcrest’s efforts to ascribe
its own dilatory tactics in this litigation to the district court. We find no evidence
supporting Hillcrest’s allegation of “the specter of bias or animus” from the district court.
The denials of the first three motions to continue were the rulings of two different district
court judges.
                                             9


project.”   In our construction of the contractual language,6 it is clear the

unsatisfied financing conditions, even giving them full effect, do not render the

lease unenforceable. Hillcrest need only have terminated the agreement as it

was entitled to do if it did not want the lease to be enforced.

               C. Damages

        Hillcrest lastly claims none of the damages awarded to Jerry’s were

caused by Hillcrest’s breach of the lease. For damages to be recoverable, the

loss must have resulted from the breach and have been in the contemplation of

the parties when they entered into the agreement. See Royal Indem. Co. v.

Factory Mut. Ins. Co., 786 N.W.2d 839, 847 (Iowa 2010). “Damages which a

reasonable person would expect to follow from a breach of a contract are direct

and thus should be awarded.” Kuehl v. Freeman Bros. Agency, Inc., 521 N.W.2d

714, 718 (Iowa 1994). Loss is foreseeable if it follows from the breach “in the

ordinary course of events” or “as a result of special circumstances, beyond the

ordinary course of events, that the party in breach had reason to know.” See

Royal Indem. Co., 786 N.W.2d at 847 (quoting Restatement (Second) of

Contracts § 351, at 135 (1981)).

        The district court awarded Jerry’s four categories of damages. First, it

awarded $26,000 for the electrical system upgrade in the new location leased in

2012.    Hillcrest itself concedes, “No dispute exists that the lease agreement

between Hillcrest and Jerry’s Hardware called for Hillcrest to build a facility

specific to the requirements of Ace for Jerry’s Hardware, including some very

6
  “[C]onstruction of a contract is the process a court uses to determine the legal effect of
the words used.” Pillsbury Co., 752 N.W.2d at, 435–36.
                                           10


specific electrical requirements.” It was therefore foreseeable that Jerry would

incur additional expenses conforming to Ace Hardware’s specific electrical

requirements in the event he had to open the store in an alternate location.

There is substantial evidence to support the finding that Hillcrest’s breach caused

these damages.7

       The next two categories of damages—$9000 for a new paint system and

inventory and $38,666.28 for updated signage, shelving, and other equipment—

were additional costs incurred by Jerry to replace equipment purchased but not

used due to the delay in opening his store.8 These costs were incurred because

the systems and equipment, while current and usable in 2010, were not current

and usable when opening a new store in 2012.                          Hillcrest alleges,

“[O]bsolescence due to passage of time would have occurred without regard to

any conduct of Hillcrest.”     However, it fails to realize the items that became

“obsolete” would have seen nearly two years of commercial use if the store had

opened in early 2010 as planned. The district court found, “[I]f the store had

opened when promised, [Jerry] would have been able to use the old [paint]

samples and machinery.” The same is true of the other equipment.

       Jerry made Hillcrest aware at the time of the lease that Jerry’s purchase of

inventory and equipment would take place soon and that the installation and

7
  Hillcrest suggests that “based on the grossly lower rental cost of the [new] leasehold,
the electrical upgrade cost already is factored into the equation.” We reject this notion.
The lower rental cost accounts for the characteristics of the new leasehold’s property,
including its location, independent of Jerry’s out-of-pocket expense of retrofitting an
electrical system into the new storefront.
8
  Neither party argued at trial that the better measure of damages was the cost of the
used equipment that remained in storage until the passage of time made it obsolete.
The record does not contain the itemized cost of the used paint system and electronics
eventually replaced.
                                           11


commercial utility of the inventory and equipment was time sensitive. Hillcrest

was further put on notice of the particular circumstances leading to these

damages soon after its failure to complete construction on time. Jerry, through

his attorney, sent a letter to Hillcrest on May 14, 2010, making Hillcrest aware of

“significant incentives from the Ace Hardware company” and Jerry’s “reasonable

expectation that his business would now be open.” After receiving no response

from Hillcrest, Jerry, through his attorney, sent Hillcrest a second letter on

September 7, 2010, detailing the costs of the inventory and equipment, which

were total losses without a storefront to host them. The letters served to reiterate

the importance of Hillcrest’s timely performance in relation to Jerry’s inventory

and equipment purchases and put Hillcrest on notice that its ongoing failure to

perform was marginalizing the value of those purchases.

       There is substantial evidence in the record supporting the district court’s

findings that these damages were caused by Hillcrest’s breach and were

foreseeable based on Hillcrest’s knowledge of the particular circumstances

surrounding Jerry’s time-sensitive purchase of the equipment.9

       Lastly, the district court awarded $26,778.49 for the costs of renting

storage space for the fixtures, equipment, and inventory. Hillcrest knew at the

time it entered into the lease agreement that Jerry was imminently purchasing an

inventory in preparation for the March 5, 2010 completion date. Jerry stressed to


9
   We disagree with Hillcrest that Jerry was required to mitigate his damages by
liquidating his inventory. It is true a party asserting a breach of contract has a duty to
mitigate its damages. See Kuehl, 521 N.W.2d at 719. However, it was not a reasonable
mitigation tactic for Jerry to liquidate the entire inventory—he still planned to open the
store either when Hillcrest completed construction or in an alternate venue.
                                           12


Hillcrest at the time of the lease agreement that the inventory purchase was

substantial and the completion of construction on time was important due to the

timing of the purchase.      It was foreseeable that Jerry would be required to

continue paying storage costs until Hillcrest built the promised store or a suitable

alternate location was secured. Substantial evidence supports the district court’s

finding that Hillcrest’s breach was the cause of the additional storage expenses.10

       We affirm all damages awarded by the district court.

       IV. Claims on Cross-Appeal

       Jerry’s raises two issues on cross-appeal.

              A. Rent Abatement

       First, Jerry’s claims it is entitled to $396,835.04 in liquidated damages

pursuant to the rent abatement clause in the lease agreement.                This claim

requires us to undergo a contract construction analysis to determine the legal

effect of the terms in the contract. See Pillsbury Co., 752 N.W.2d at 435–36.

The rent abatement clause provides for one day of abated rent per day from

March 6, 2010, to March 12, 2010, and two days of abated rent per day from

March 13, 2010, for every day that construction is not completed.                Jerry’s

calculates it is owed 768 days of rent-free tenancy—abated rent accrued from

March 5, 2010, the anticipated move-in date, through April 18, 2012, when

10
    On appeal, Hillcrest claims one element of the storage expenses was patently not
caused by its breach of the lease agreement: pick-up and delivery costs. There is no
indication in the record that the costs paid for pick-up and delivery of the stored goods
would have been any different if Jerry had put the materials in storage and removed
them on March 5, 2010, as he initially intended. However, Hillcrest did not present this
argument to the district court at trial or in its post-trial motion to enlarge or amend.
“[I]ssues must ordinarily be both raised and decided by the district court before we will
decide them on appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).
Hillcrest as failed to preserve error on the issue of pick-up and delivery costs.
                                         13


Jerry’s opened its store in the alternative location.      Because Jerry’s cannot

occupy the intended retail space, it now argues it is entitled $396,835.04—the

value of 768 days of rent under the lease agreement.

       Jerry’s sole citation to support its theory of rent abatement does not in fact

support its position. See Bates Adver. USA, Inc. v. 498 Seventh, L.L.C., 850

N.E.2d 1137, 1139–40 (N.Y. 2006) (characterizing a rent abatement clause as

“liquidated   damages,”       but   nevertheless    affirming   their   award     as

“credits . . . against which to offset future rent payments”). We find no authority

for the proposition that rent abatement can be transformed into monetary

damages, and we are not persuaded by the characterization of rent abatement

espoused by Jerry’s—that it “negotiated for the receipt of rent value if Hillcrest

failed to make available the premises.” While the rent abatement clause is the

agreed upon measure of damages for a delayed move-in by Jerry’s, it does not

apply as a measure of damages for Hillcrest’s failure to build any building at all.

Iowa’s limited case law addressing rent abatement considers abatement under

its common definition, as a deduction in an amount owed to a lessor, not an

affirmative value owed by the lessor to the lessee. See Schick v. Davenport

Realty Co., 205 N.W. 782, 783 (Iowa 1925); see also Woodbury Co. v.

Dougherty & Bryant Co., 143 N.W. 416, 418 (Iowa 1913). The district court

properly denied this claim.

              B. Additional Damages Claims

       Second, Jerry’s argues the district court erred in denying its claims for

damaged inventory and fixtures. Some of the items Jerry stored were damaged

due to their exposure to extreme weather through two summers and two winters.
                                         14


The district court declined to award Jerry’s the lost value of the goods resulting

from damage during storage, finding that Jerry’s failed to mitigate these damages

when it failed to store the items in an appropriate setting that would not expose

them to the elements. “A person asserting breach of contract has a duty to

mitigate the damages.” Kuehl, 521 N.W.2d at 719. The record supports the

district court’s conclusion that Jerry’s decision to continue to store the items in a

location that would expose them to damage was a failure to mitigate his

damages. Though Jerry testified that storing the items in a climate-controlled

facility would have been more expensive, it was incumbent on him to prevent

damage to the items rather than let them deteriorate. Jerry’s could then recover

the costs of storage—to which it is entitled—from Hillcrest.

       We do not agree with Hillcrest’s assertion that the principle requiring

Jerry’s to mitigate its damages necessitated liquidation of the stored materials,

but we do agree with the district court that the principle necessitated efforts to

store the materials in an appropriate setting. We affirm the district court.

       V. Conclusion

       The district court did not abuse its discretion in its determinations on

Hillcrest’s multiple motions to continue the trial. The court properly determined

the lease agreement was enforceable between the parties.             We affirm the

damages awarded by the district court. As to the cross-appeal, the district court

properly rejected the request to convert the rent abatement clause to monetary

damages.    It properly rejected the claim for damages that occurred because

Jerry’s failed to reasonably mitigate its damages. We affirm.

       AFFIRMED ON APPEAL; AFFIRMED ON CROSS-APPEAL.
