                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1857
                            Filed October 11, 2017


MITCHELL COUNTY MUTUAL AGENCY, INC.,
d/b/a TOWN & COUNTRY INSURANCE AGENCY,
       Plaintiff-Appellee/Cross-Appellant,

vs.

SCOTT H. GINTHER,
     Defendant-Appellant/Cross-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Mitchell County, Colleen D.

Weiland, Judge.



      Scott Ginther appeals from the district court’s ruling in this breach-of-

contract action. AFFIRMED ON BOTH APPEALS.




      Scott H. Ginther, Rockford, pro se appellant.

      Mark L. Walk of Walk & Murphy, P.L.C., Osage, for appellee.




      Considered by Danilson, C.J., and Tabor and McDonald, JJ.
                                             2


DANILSON, Chief Judge.

         Scott Ginther appeals, and Mitchell County Mutual Agency cross-appeals,

from the district court’s ruling in this breach-of-contract action. Finding no error,

we affirm on both appeals.

         Mitchell County Mutual Agency, Inc., doing business as Town & Country

Insurance Agency (T&C) is an insurance agency located in Osage, Mitchell

County, Iowa. T&C merged with Harman Insurance in 2004.

         Since 1999, the Harman Insurance agency provided property and liability

insurance policies to Gary Ginther (father) and Scott Ginther (son). Gary and

Scott farmed several parcels of farmland together and were the named insureds

of several procured Howard County Mutual Insurance Association policies

covering various real and personal properties. Harman Insurance agency and

the Ginthers participated in a form of “agency billing.” Harman Insurance paid to

Howard County Mutual the Ginthers’ various insurance premiums as they came

due throughout the year. Once or twice a year, Gary would write a check to

Harman Insurance for all amounts due and owing.

         This billing practice continued after Harman Insurance merged with T&C in

2004.      The records indicate that from 20071 through 2011, Gary paid about

$6000 by May of each year and the balance of sums due—roughly $9000—in

late December. In 2012 and 2013, Gary did not make an early payment. At the

end of 2012, Scott and Gary met with Scott Wilde of T&C and paid the 2012

payments due. In 2013, Scott paid T&C. Although not paid by the Ginthers in

2014, T&C continued to pay the insurance premiums as they came due in 2014.

1
    T&C would retain seven years of records; no records were retained prior to 2007.
                                           3


        Gary died on July 23, 2014. His last will and testament was admitted

without administration. Gary’s property was transferred through the terms of the

Gary Ginther Revocable Trust, which had been created on October 26, 2010.

Notice of proof of will without administration was published ending August 14,

2014.    Notice to creditors as to an irrevocable trust was published shortly

thereafter.

        A dispute arose with Scott Ginther about payment to T&C at the end of

2014. Scott Ginther met with Scott Wilde in December 2014. Ginther wrote a

check for sums due on the insurance policies but then stopped payment on the

check and cancelled the policies. Some refunds were issued to T&C on the

cancelled policies that reduced the amount owed, but no additional payments

have been made to T&C to reimburse the amounts paid on the policy premiums.

        T&C filed this action against Scott Ginther, the Gary Ginther Irrevocable

Trust, and the Gary Ginther Revocable Trust (together the Ginther defendants)

for “account stated as an agreement” and an open account, asking for judgment

in the amount of $12,204.67, plus interest—the amount paid by T&C for the 2014

insurance policies. The matter was tried as an alternative expedited civil action

pursuant to Iowa Rule of Civil Procedure 1.281. The Ginther defendants filed no

response to requests for admission, filed no exhibit list, and did not submitted

proposed exhibits in a timely manner. T&C presented the testimony of Scott

Wilde and exhibits. The Ginther defendants presented no evidence.2




2
  At trial, the Ginthers’ attorney made a professional statement there was but one trust—
the Gary Ginther Revocable Trust, which became irrevocable upon Gary’s death.
                                           4


       On October 5, 2016, the court entered judgment in favor of T&C and

against Scott Ginther, finding:

               Here, I find a contractual obligation for the coverage
       provided by Town & Country and the amounts billed for it. Gary
       affirmatively made the arrangements and knew the details. Scott
       was aware that Gary had arranged insurance coverage for their
       joint operation with Town & Country, and he benefited from it. Scott
       may not have known the details of it, but he did not object and he
       did not further inquire. He simply accepted the arrangement and
       the coverage. Because insurance is not free, Scott had reason to
       know that the coverage was provided with the expectation of
       compensation. See Restatement (Second) of Contracts § 69 cmt.
       a (1981), as cited in Roger’s Backhoe [Serv., Inc. v. Nicholes], 681
       N.W.2d [647,] 651 [(Iowa 2004)].

       The court found no basis for finding the Ginther Trust liable.           It also

rejected T&C’s right to payment under theories of quantum meruit and unjust

enrichment because T&C had not pled those theories. The court awarded T&C

attorney fees because of discovery and trial scheduling and discovery plan

noncompliance.

       Scott Ginther appeals, and T&C cross-appeals.3

       A contract action tried to the court is reviewed for errors at law. Rogers

Backhoe, 681 N.W.2d at 649. “Trial court findings of fact are binding on us if

supported by substantial evidence, but we are not precluded from inquiry into

whether erroneous rules of law materially affected the decision.” Id.

       Scott contends T&C’s billing practice constituted a violation of the

consumer credit code, and it is not binding upon him personally. He argues,

       [He] never knew what insurance coverage his father was
       purchasing for his farm, or what the payment arrangements were

3
  T&C’s cross-appeal provides alternative grounds for recovery should this court find no
express or implied contract existed. Because we affirm on the appeal, the cross-appeal
is moot.
                                          5


       between decedent and Town & County. There was no farm
       partnership. He never accepted the insurance policy or the price
       charged. He never received a bill from Town and Country until
       after his father died. Scott never wrote a check out of his personal
       accounts or paid any consideration to Town and Country until after
       his father died and he inherited land. There was no open account
       or loan agreement which created a contractual obligation on the
       part of Scott to pay decedent’s farm insurance.

The district court found otherwise, and substantial evidence supports the court’s

findings. We note specifically that Scott Wilde testified as follows:

              Q. Okay. So then at the—you advanced those throughout
       the course of the year for Scott and Gary. Then comes the end of
       the year and you meet with them and neither Scott or Gary would
       pay that bill. A. That’s correct.
              Q. That’s what you had done for [sixteen] years? A.
       [Sixteen] years.
              Q. Never an issue? A. Never.
              Q. And, in fact, we turn ahead a couple pages—it’s about the
       10th or 11th page—that’s the check that Scott actually wrote to you
       paying that [2014] bill in full? A. That’s correct.
              Q. And then he stopped payment on that? A. That’s correct.
              ....
              Q. Now for [seventeen] years, you had insurance with Scott
       and Gary Ginther; correct? A. That’s correct.
              Q. And they were listed on the policy as the insured—Scott
       and Gary Ginther. A. That’s correct.
              Q. And the bills went to Scott and Gary Ginther. A. Yes.
              Q. Did Scott—and when you met with them in December,
       was Scott normally there? A. He wasn’t there all the time, but he
       was probably there seven out of ten times is what I’m going to say.
              Q. And the last few years, my understanding is, Scott would
       actually write out the checks and then Gary would sign those. A.
       That’s correct.
              Q. So Scott was aware what was going on? A. To my
       knowledge.
              Q. And he never, ever stated to you, wait a minute, this
       should only be in dad’s name. A. Never.
              Q. And he never, ever stated to you, wait a minute, this
       should be in the trust name. A. No.
              Q. He led you to believe and, in fact, you did believe that
       Scott and Gary were in a joint venture. A. Yes, that’s correct.
              Q. And Scott owned part of the property. A. Yes, that’s
       correct.
                                        6


             Q. And Gary owned part of the property. A. Yes, that’s
      correct.
             Q. And they were just working it out between the two of
      them. A. Yes, that’s correct.

      We are not convinced that the failure to timely pay insurance premiums

ripens into a loan agreement regulated by Iowa Code section 537.3207 (2014),

as urged by Scott. We reach this conclusion even though there were delays in

past payments between the parties.

      Giving the deference due to the trial court’s findings, we reject Scott’s

objections, and we affirm the court’s conclusions.

      AFFIRMED ON BOTH APPEALS.
