               IN THE SUPREME COURT OF IOWA
                                No. 07–1852

                          Filed February 5, 2010


BILL VAN SLOUN d/b/a
SUPERIOR STAFFING,

      Appellant,

vs.

AGANS BROTHERS, INC.,

      Appellee.



      Appeal from the Iowa District Court for Polk County, Don C.

Nickerson, Judge.



      A commercial tenant appeals from an adverse ruling in a

declaratory judgment action concerning a landlord’s refusal to approve a

subtenancy. AFFIRMED IN PART AND REVERSED IN PART.



      N. Tre’ Critelli of Nicholas Critelli, P.C., Des Moines, for appellant.



      Douglas A. Fulton of Brick Gentry P.C., West Des Moines, for

appellee.
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BAKER, Justice.

      This case arises from a dispute between former tenant, Superior

Staffing, and landlord, Agans Brothers, Inc., over the refusal of Agans

Brothers to approve a subtenancy.        Superior Staffing challenges the

district court’s findings in a declaratory judgment action that Agans

Brothers did not unreasonably withhold consent to a subtenancy.

Superior Staffing claims the district court’s findings of fact are not

supported by substantial evidence, the court incorrectly applied the law,

and the court erred in awarding Agans Brothers attorney fees.

      We hold sufficient evidence exists in the record to support the

district court’s finding that Agans Brothers reasonably withheld its

consent to the sublease and the district court applied the correct legal

standard.   We, therefore, affirm the district court’s findings on those

issues. Because we hold that Agans Brothers’ failure to file an affidavit

was waived, we affirm the district court’s award of attorney fees for the

district court proceedings; however, we hold that Agans Brothers’ failure

to file an affidavit precludes the award of attorney fees on appeal.

      I. Background Facts and Proceedings.

      On December 5, 1997, Superior Staffing entered into a written

commercial lease with landlord West University Center.           This lease

contained the following provision:

                  9.    ASSIGNMENT AND SUBLETTING.            Any
            assignment of this lease or subletting of the premises
            or any part thereof, without the Landlord’s written
            permission shall, at the option of the Landlord, make
            the rental for the balance of the lease term due and
            payable at once. Such written permission shall not be
            unreasonably withheld.

Agans Brothers took over the lease as landlord.           In August 2002,

Superior Staffing and Agans Brothers entered into an addendum to the
                                     3

original commercial lease.     Under this agreement, the lease term was

extended to July 31, 2007.       This addendum was signed by Bill Van

Sloun, on behalf of Superior Staffing, and John Agans, on behalf of

Agans Brothers.       The record demonstrates Van Sloun had a good

working relationship with the owners of Agans Brothers.

         In April 2005, Van Sloun informed Agans Brothers of his intent to

purchase office space and to sublet the premises he was renting. Van

Sloun understood that Agans Brothers had to consent in writing to any

sublease. He further understood that, while Agans Brothers could not

unreasonably withhold consent, valid reasons for refusing consent could

exist.

         After several months of futile efforts to obtain a new tenant, in

October 2005, Van Sloun met with Madhuri Sadhu to discuss the

possibility of her subletting the premises.     Sadhu wanted to run an

Indian grocery store on the premises that would involve preparation of

some snack foods.       The food preparation would require altering the

premises to install kitchen equipment. The two discussed rental price for

the space, and, as a result of that discussion, Van Sloun understood he

would need to pay Agans Brothers $175 per month in rental payments

during the remaining term of the sublease, which he was willing to do.

         Van Sloun met with John Agans to discuss the sublease.       Van

Sloun testified that Agans indicated he would consent to the sublease

but needed more information.       A few days after his conversation with

John Agans, Van Sloun spoke to Sadhu. She stated that Agans was not

willing to rent her the space but recommended she consider renting a

different property owned by Agans Brothers.      Sadhu eventually leased

the property recommended by Agans Brothers.
                                     4

        About a month after Agans Brothers refused its consent to the

sublease, Superior Staffing relinquished the space to Agans Brothers and

moved into the space it purchased. Superior Staffing ceased paying rent

to Agans Brothers at that time. Agans Brothers continued to look for a

new tenant, but, like Superior Staffing, had a difficult time finding a new

tenant. Agans Brothers was not able to find a replacement tenant until

March 2007.

        Superior Staffing filed a declaratory judgment petition seeking a

determination that its obligations under the lease were discharged

because Agans Brothers unreasonably withheld its consent to the

sublease. Agans Brothers counterclaimed seeking contract damages for

Superior Staffing’s failure to pay rent and attorney fees.

        After a bench trial, the district court found that Agans Brothers’

consent was reasonably withheld. Both parties filed posttrial motions,

and the district court subsequently issued a ruling that modified its

initial ruling. Among the issues addressed in the posttrial motions was

Superior Staffing’s contention that Agans had found a new tenant to rent

the premises five months before the leasehold period ended. In response,

the district court reduced Agans Brothers’ damage award by the amount

of rent for this five-month period, awarding $28,031.25 in damages. The

ruling was also modified to award Agans Brothers $12,046.58 in attorney

fees.   Prior to requesting attorney fees, Agans Brothers did not file an

affidavit as required under Iowa Code section 625.24.          Iowa Code

§ 625.24 (2007). Superior Staffing appealed.

        II. Reasonableness of Withholding Consent.

        A. Standard of Review. The parties disagree on the standard of

review. Superior Staffing filed the case as a declaratory judgment action.

The court’s review of a declaratory judgment action depends upon how
                                     5

the action was tried to the district court. Passehl Estate v. Passehl, 712

N.W.2d 408, 414 (Iowa 2006).       “To determine the proper standard of

review, we consider the ‘pleadings, relief sought, and nature of the case

[to] determine whether a declaratory judgment action is legal or

equitable.’ ”   Id. (quoting Nelson v. Agro Globe Eng’g, Inc., 578 N.W.2d

659, 661 (Iowa 1998)).     “Where there is uncertainty, a litmus test we

have applied is whether evidentiary objections were ruled on by trial

court.” Citizens Sav. Bank v. Sac City State Bank, 315 N.W.2d 20, 24

(Iowa 1982); accord Passehl, 712 N.W.2d at 414. If so, the action is one

in law. Passehl, 712 N.W. at 414 n. 6; Stanley v. Fitzgerald, 580 N.W.2d

742, 744 (Iowa 1998). Another indication that the action is a legal one is

the parties’ filing of motions normally made in legal actions. See Citizens

Sav. Bank, 315 N.W.2d at 24. Further, a trial court generally issues a

“decree” in an equitable action and a “judgment” in a legal action. See

id.

      It is not significant that the action was brought as a declaratory

judgment action. See Passehl, 712 N.W.2d at 414. The relief requested

by Superior Staffing was a court declaration that its obligations under

the lease agreement with Agans Brothers were discharged by Agans

Brothers’ breach. Agans Brothers brought a counterclaim for contract

damages based on Superior Staffing’s breach of the lease.

      “Generally, an action on contract is treated as one at law.” Atlantic

Veneer Corp. v. Sears, 232 N.W.2d 499, 502 (Iowa 1975).          Where the

basic rights of the parties derive from the nonperformance of a contract,

where the remedy is monetary, and where the damages are “full and

certain, remedies are usually provided by actions at law, and equity has

no jurisdiction.”   Berry Seed Co. v. Hutchings, 247 Iowa 417, 422, 74

N.W.2d 233, 237 (1956). “If . . . both legal relief and equitable relief are
                                      6

demanded, the action is ordinarily classified according to what appears

to be its primary purpose or its controlling issue.” Mosebach v. Blythe,

282 N.W.2d 755, 758 (Iowa Ct. App. 1979).

      The essential character of both Superior Staffing’s petition and

Agans Brothers’ counterclaim involved breach of contract claims.          The

controlling issue below was which party breached the contract. At trial,

the court ruled on objections. In addition, the court issued a ruling and

judgment entry, not a decree.

      In view of these factors, we find that the case was tried at law, and

the scope of review is for errors at law. Iowa R. App. P. 6.907 (2009);

Johnson v. Kaster, 637 N.W.2d 174, 177 (Iowa 2001).              Under this

standard of review, the trial court’s findings carry the force of a special

verdict and are binding if supported by substantial evidence. Johnson,

637 N.W.2d at 177. We are not, however, bound by the trial court’s legal

conclusions. Am. Family Mut. Ins. Co. v. Petersen, 679 N.W.2d 571, 575

(Iowa 2004).

      B.   Legal Standards.     “Because leases are contracts as well as

conveyances of property, ordinary contract principles apply.” Walsh v.

Nelson, 622 N.W.2d 499, 503 (Iowa 2001). We first look to see what the

lease provides.   The lease provides that an assignment of the lease or

sublet of the premises “shall not be unreasonably withheld.” “Where, as

here, the dispute centers on the meaning of certain lease terms, we

engage in the process of interpretation, rather than construction.”        Id.

(citing Fausel v. JRJ Enters., 603 N.W.2d 612, 618 (Iowa 1999) (holding

interpretation is a process of determining meaning of contract terms

while construction is a process of determining legal effect of such terms)).

“Our goal in interpreting a lease is to ascertain the meaning and

intention of the parties.” Petty v. Faith Bible Christian Outreach Ctr., Inc.,
                                     7

584 N.W.2d 303, 306 (Iowa 1998).

      The clause “shall not be unreasonably withheld” is not ambiguous.

“If the court finds that no ambiguity exists, contract interpretation and

its legal effect are questions of law for the court.” Pillsbury Co. v. Wells

Dairy, Inc., 752 N.W.2d 430, 439 (Iowa 2008). We have not previously

addressed the issue of reasonableness in a lease provision. In assessing

the reasonableness of Agans Brothers’ refusal, the district court applied

a reasonably prudent person standard, relying on List v. Dahnke, 638

P.2d 824, 825 (Colo. Ct. App. 1981), for the proposition that “arbitrary

consideration[s] of personal taste, convenience, or sensibility are not

proper criteria for withholding consent under such a lease provision.”

      We note many other jurisdictions, as well as several secondary

treatises, have addressed the issue and reached a similar conclusion.

E.g., Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1001–02 (Alaska

2004); Kendall v. Ernest Pestana, Inc., 709 P.2d 837, 843 (Cal. 1985);

Golf Mgmt. Co. v. Evening Tides Waterbeds, Inc., 572 N.E.2d 1000, 1003

(Ill. App. Ct. 1991); 49 Am. Jur. 2d Landlord & Tenant § 991, at 905

(2006); Gary L. Hall, Annotation, Construction and Effect of Provision in

Lease that Consent to Subletting or Assignment Will Not Be Arbitrarily or

Unreasonably Withheld, 54 A.L.R.3d 679, 689–93 (2008). After reviewing

these sources, we conclude the standard utilized by the district court is

in accord with other jurisdictions that have addressed this issue, and we

adopt it. See also Restatement (Second) of Property: Landlord & Tenant

§ 15.2 cmt. g, at 105 (1977) (declaring that in order for a reason for

refusing consent to be reasonable it “must be objectively sensible and of

some significance and not be based on mere caprice or whim or personal

prejudice.”).

      In interpreting a similar reasonableness provision, the Montana
                                     8

Supreme Court adopted as a standard, “conduct of a reasonably prudent

person in the landlord’s position exercising reasonable commercial

responsibility.” Brigham Young Univ. v. Seman, 672 P.2d 15, 18 (Mont.

1983). Similarly, the Nebraska Supreme Court held that “a lessor may

withhold consent only when the lessor has a good faith and reasonable

objection to assignment of the lease or subletting.”     Newman v. Hinky

Dinky Omaha-Lincoln, Inc., 427 N.W.2d 50, 55 (Neb. 1988) (citing

Kendall, 709 P.2d at 843). We agree with the foregoing and hold that a

landlord may only withhold consent under a reasonableness clause

where a prudent person in the landlord’s position exercising reasonable

commercial responsibility has a good faith and reasonable objection to

assignment of the lease or subletting.

      C. The Factor Test. The question of whether a landlord’s refusal

is unreasonable is one of fact. 49 Am. Jur. 2d. Landlord & Tenant § 942,

at 868 (2006). In making the determination that Agans Brothers did not

unreasonably withhold consent, the district court considered various

factors.   These factors were:     (1) the financial responsibility of the

proposed assignees, (2) the original tenant’s failure to comply with the

lease conditions, (3) the original tenant’s failure to indicate a willingness

to remain obligated on the lease, (4) the legality of the proposed use and

need for alteration of the premises, and (5) the nature of the existing use

and the proposed use by the new tenant. Id. This list is not exhaustive.

Because the reasonableness of a landlord’s refusal is a fact question and

case dependent, it would be impossible to list all the relevant factors that

might be considered in assessing reasonableness. We focus, therefore,

on whether the trial court used appropriate factors in this case. Given

the facts of this case, we hold the district court appropriately considered

five factors in determining whether Agans Brothers’ refusal to consent to
                                          9

the sublease was reasonable.

       In its appeal, Superior Staffing claims the district court erred in its

determination that Agans Brothers’ refusal was reasonable in three

respects: (1) the court did not consider the factors in the proper context,

(2) it did not consider all the factors in making its determination, and

(3) the court’s findings of fact were not supported by substantial

evidence.

       Superior Staffing makes two separate claims concerning the

district court’s consideration of the factors it used to determine the

reasonableness of Agans Brothers’ refusal. The first of these claims is

that the court did not consider the factors in the proper context.

Specifically, Superior Staffing claims that in its recitation of the five

factors, the district court “erred by eliminating a sentence which

described the proper ‘focus’ of the factors, as was originally set forth in”

the original source. 1     Superior Staffing declares that the proper focus

should be “on only those factors that relate to the landlord’s interest in

preserving the property’s value.” Id. Superior Staffing’s second claim of

error is that the district court only considered the last two factors and

gave no consideration to whether Superior Staffing met the other three
factors.

       Both of Superior Staffing’s contentions can be dealt with by

examining the nature of the test adopted by the district court. The five

factors outlined by the district court represent a general balancing test,

which the court employs to determine whether the landlord’s refusal is

“ ‘based upon a consideration of objective factors.’ ” Kenney v. Eddygate


       1The   district court cited to 49 Am. Jur. 2d. Landlord & Tenant § 942, at 868
(2006), as its source for the five factors it considered but other states have adopted
similar tests. See, e.g., Newman, 427 N.W.2d at 54; Kenney v. Eddygate Park Assocs.,
797 N.Y.S.2d 581, 582 (App. Div. 2005).
                                    10

Park Assocs., 797 N.Y.S.2d 581, 582 (App. Div. 2005) (quoting Astoria

Bedding, Mr. Sleeper Bedding Ctr., Inc. v. Northside P’ship, 657 N.Y.S.2d

796, 797 (App. Div. 1997)). As the Nebraska Supreme Court noted:

      The foregoing factors are neither exhaustive nor components
      in an arithmetical formula for reasonableness. None of the
      factors is weighted so that more or less weight is attributable
      or assigned to any particular factor utilized in evaluating a
      lessor’s good faith or reasonableness in withholding consent
      to a commercial lease assignment or subletting. Additional
      factors may be educed in future situations involving a
      lessor’s withholding consent in cases similar to that now
      reviewed by this court.

Newman, 427 N.W.2d at 54. Superior Staffing’s assertion suggests that

Sadhu’s financial standing and Superior Staffing’s guarantee of the rent

are the only factors that should be considered.              Although we

acknowledge that the financial viability of the proposed new tenant and

guarantee of Superior Staffing are factors to be considered, these factors,

however, do not trump the factors that the district court found

determinative, especially with regard to alterations to the property and

uses of the property.   A refusal to consent certainly may be based on

financial responsibility of the subtenant. Kenney, 797 N.Y.S.2d at 582.

It is, however, but one factor. See Kendall, 709 P.2d at 842; Fernandez

v. Vazquez, 397 So. 2d 1171, 1174 (Fla. Dist. Ct. App. 1981); Maxima

Corp. v. Cystic Fibrosis Found., 568 A.2d 1170, 1176 (Md. Ct. Spec. App.

1990); Ernst Home Ctr., Inc. v. Sato, 910 P.2d 486, 493 (Wash. Ct. App.

1996).

      The district court appropriately applied a general balancing test.

In its application it was not required to treat each factor as a necessary

component of the test, nor was it required to give certain factors more

weight than others. The district court had the discretion to decide which

factors to consider when determining whether Agans Brothers’ refusal
                                    11

was based upon objective factors.        The district court did not err in

focusing its analysis on the last two factors, nor in its determination that

financial concerns were not the only permissible reasons to refuse the

sublease.

      D. Evidentiary Analysis. Superior Staffing also claims that the

trial court’s findings of fact were not supported by substantial evidence.

The trial court found Agans Brothers’ “concerns [were] based upon

objective factors and not personal taste, convenience or sensibility,” and

it had “not unreasonably [withheld] its consent” to the transfer proposed

by Superior Staffing. These findings are binding on us if supported by

substantial evidence. Johnson, 637 N.W.2d at 177.

      Superior Staffing’s proposed subleasor, Madhuri Sadhu, wanted to

run an Indian grocery store that prepared snacks.        Ultimately, Agans

Brothers rejected the tenancy for four reasons.        First, the premises

already had a Sudanese grocery store, and Agans Brothers was

concerned that another ethnic grocery store on the premises would hurt

its existing tenant’s business.    Second, Sadhu’s plan to make snacks

would require kitchen equipment and substantial alteration of the roof

overhang in the rear of the building to accommodate external venting.

Third, food odors might travel from the common ventilation shared by

Agans Brothers’ retail business, Clive Power and Equipment, Superior

Staffing’s office space, and the Sudanese grocery store.      Finally, food

deliveries to Sadhu’s grocery store might interfere with deliveries to

Agans Brothers’ retail business.

      The district court found Agans Brothers’ testimony regarding these

concerns credible.   “On appeal in a law action we are bound by such

factual findings on the credibility of witnesses.” Plymouth Farmers Mut.

Ins. Ass’n v. Armour, 584 N.W.2d 289, 292 (Iowa 1998).          The record
                                    12

supports the district court’s finding that Agans Brothers’ reasons for

withholding consent were genuine and objective. As the original trier of

fact, the district court was in a markedly better position to judge the

credibility of Agans Brothers’ stated rationale.    We find no reason to

disturb the district court’s judgment that Agans Brothers did not

unreasonably withhold its consent to Superior Staffing’s proposed

sublease.   The district court’s findings are supported by substantial

evidence, and we affirm its ruling and judgment.

      III. Attorney Fees.

      A.    Standard of Review.      Finally, the parties disagree about

whether the district court correctly awarded Agans Brothers attorney

fees. The district court modified its original ruling to include an award of

$12,306.58 in attorney fees for Agans Brothers. Superior Staffing claims

that Agans Brothers’ failure to file an affidavit as required under Iowa

Code section 625.24 precluded the taxing of attorney fees as costs.

Agans Brothers counters that Superior Staffing failed to raise this issue

before the district court, and, therefore, this claim has been waived.

      Our determination of this issue involves the interpretation of Iowa

Code sections 625.22 and 625.24. The court reviews issues involving the

interpretation of statutes for correction of errors at law. T & K Roofing

Co. v. Iowa Dept. of Educ., 593 N.W. 2d 159, 161 (Iowa 1999).

      B. Analysis. The right to recover attorney fees as costs does not

exist at common law. Thorn v. Kelley, 257 Iowa 719, 726, 134 N.W.2d

545, 548 (1965).    In Iowa, they are not allowed “in the absence of a

statute or agreement expressly authorizing it. In order [for fees to be]

taxed the case must come clearly within the terms of the statute or

agreement.” Id. The parties’ lease contained a provision which stated:
                                    13
      In the event the tenant should be in default of the terms and
      conditions of this agreement, tenant shall pay attorney fees
      incurred by the landlord in order to enforce said terms and
      conditions.

      Iowa Code sections 625.22 and 625.24 address a party’s request

for attorney fees. Iowa Code section 625.22 declares that when attorney

fees are permitted under a contract provision, the court is permitted to

tax a reasonable amount of those fees as a part of costs.        Iowa Code

§ 625.22.    Section 625.24 provides that the fees allowed by section

625.22 shall not be taxed unless the attorney files an affidavit declaring

“that there is not and has not been an agreement between the attorney

and the attorney’s client or any other person . . . for any division or

sharing of the fee to be taxed.” Iowa Code § 625.24. The statute also

states that the affidavit must be filed prior to the attorney fees being

taxed. Id.

      Agans Brothers’ counsel did not file the affidavit required by

section 625.24.    Superior Staffing did not object to the lack of the

affidavit at the district court level. Our rules of error preservation would

normally require that the failure to file the affidavit must be raised below

to preserve the issue for our review or the issue is waived. See State v.

McCright, 569 N.W.2d 605, 607 (Iowa 1997) (stating “[i]ssues not raised

before the district court . . . cannot be raised for the first time on

appeal”).
      We have previously ruled, with regard to a predecessor statute,

that failing to object to the lack of an affidavit below did not prevent the

appellate court from considering the issue. Sweney v. Davidson, 68 Iowa

386, 392, 27 N.W. 278, 281 (1886); see also Weible v. Kline, 251 Iowa

255, 259–60, 100 N.W.2d 102, 105 (1959) (the court considered the
                                     14

issue, but determined that no attorney fees could be taxed because no

affidavit had been filed).
      We have never stated whether the lack of an affidavit involves the
court’s authority or its subject matter jurisdiction. In recent years, we
have been careful to distinguish between the court’s lack of authority to
hear a particular matter and its lack of subject matter jurisdiction.
Klinge v. Bentien, 725 N.W.2d 13, 16 (Iowa 2006). Although our prior
cases have provided that the authority to tax attorney fees may be
challenged at any time, the precedential value of those cases is
questionable given our recent emphasis on the distinction between
subject matter and authority. See State v. Mandicino, 509 N.W.2d 481,
482–83 (Iowa 1993). The distinction is critical because a court’s lack of
authority to hear a particular matter may be waived if it is not raised
below, whereas an absence of subject matter jurisdiction may be raised
by the parties at any time. Id.
      Although “we have consistently held that such an affidavit is a
prerequisite to taxation of attorneys fees as costs.” Moser v. Thorp Sales
Corp., 334 N.W.2d 715, 719 (Iowa 1983) (citing Holden v. Voelker, 228
Iowa 589, 591, 293 N.W. 32, 32 (1940)), we have also held that attorney
fees will be allowed unless it is affirmatively shown that the affidavit was
not filed. Mills County Nat. Bank v. Perry, 72 Iowa 15, 17, 33 N.W. 341,
342 (1887). Unlike the statute in Klinge, the statute at issue here does
not proscribe a request for attorney fees unless a jurisdictional
prerequisite is met. See Klinge, 725 N.W.2d at 18 (concluding that “the
legislature intended obtaining a mediation release from the farm
mediation service to be a prerequisite to subject matter jurisdiction”).
The lack of an affidavit does not divest the court of jurisdiction; it merely
limits its authority to tax attorney’s fees to those cases where the
affidavit has been filed.
                                     15

      The language and history of the statute supports this conclusion.
Prior to 1985, the statute provided that the affidavit was required to be
“filed with the petition at the commencement of the action.” Iowa Code
§ 625.24 (1983). After its amendment in 1985, the statute provided that
“[t]he affidavit shall be filed prior to any attorney’s fees being taxed.”
Iowa Code § 625.24 (Supp. 1985). The explanation for the amendment
explains that the “bill amends the procedural aspect of section 625.24 to
make it consistent with the notice pleading system . . . .”             See
Explanation to S.F. 289, 1985 Iowa Acts ch. 72. Although an argument
may have been made prior to 1985 that the affidavit was jurisdictional,
the amendment makes it clear that the affidavit only speaks to the
court’s authority as it does not bar the claim but only delays the court’s
authority until the affidavit has been filed.
      As noted above, the distinction is critical. Because the filing of the
affidavit goes to the authority of the court, it may be waived. Klinge, 725
N.W.2d at 16. Superior Staffing had the opportunity to object but failed
to do so. Had Superior Staffing objected, the failure to file the affidavit
could have been easily cured.       Having failed to object at the district
court, Superior Staffing has waived its objection.     The attorney’s fees
were properly taxed as costs.
      Finally, Agans Brothers requests that it be awarded attorney fees

for this appeal.    Although a party entitled to attorney fees under a

contract may be entitled to reasonable attorney fees on appeal, see

Beckman v. Kitchen, 599 N.W.2d 699, 702 (Iowa 1999), Agans Brothers

has still not filed the affidavit required under Iowa Code section 625.24.

Superior Staffing continues to object to the taxing of attorney fees

because of this failure. This objection has not been waived and we are,

therefore, without authority to tax the attorney’s fees as costs.    Agans

Brothers’ request for attorney fees on appeal is denied.
                                    16

      IV. Disposition.

      We find that substantial evidence exists in the record to support

the district court’s finding that Agans Brothers reasonably withheld its

consent to the sublease and that the district court applied the correct

legal standard. We, therefore, affirm the district court’s findings on those

issues. Because we hold that Agans Brothers’ failure to file an affidavit

was waived, we affirm the district court’s award of attorney fees for the

district court proceedings. Because we hold that Agans Brothers’ failure

to file an affidavit precludes the award of attorney fees on appeal, we

refuse to order an award of attorney fees on appeal.

      AFFIRMED IN PART AND REVERSED IN PART.

      All justices concur except Ternus, C.J., who takes no part.
