                   IN THE COURT OF APPEALS OF IOWA

                                    No. 19-0031
                             Filed November 27, 2019


SLASHFROG, LLC d/b/a ALL DAY HOMES,
    Plaintiff-Appellant/Cross-Appellee,

vs.

ETHAN QUICK and JORDAN QUICK,
     Defendants-Appellees/Cross-Appellants.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert A. Hutchison,

Judge.



      Slashfrog, LLC appeals from the dismissal of its breach-of-contract claim

and exclusion of its evidence of damages. Ethan and Jordan Quick cross-appeal

from the grant of summary judgment on their unconscionability claim and dismissal

of their breach-of-contract claim.   AFFIRMED ON APPEAL; AFFIRMED AS

MODIFIED ON CROSS-APPEAL.



      S.P. DeVolder of The DeVolder Law Firm, P.L.L.C., Norwalk, for appellant.

      Michael J. Streit and Louis R. Hockenberg of Sullivan & Ward, P.C., West

Des Moines, for appellees.



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


GREER, Judge.

       In this appeal, we consider a real estate contract dispute between two

parties. Slashfrog, LLC appeals and Ethan and Jordan Quick cross-appeal from

the rulings of the district court related to the contract terms and resulting breaches.

On appeal, Slashfrog argues the court erred in finding it breached the contract and

in excluding most of its damages evidence as speculative. On cross-appeal,

Quicks contend the court erred in finding the contract was not unconscionable and

in finding they also breached the contract. We find no error in granting summary

judgment for Slashfrog on Quicks’ unconscionability claim and in finding Slashfrog

breached the contract. That said, we find Quicks substantially performed their

obligations under the contract and award them the earnest money. Because of its

cancellation of the contract, we do not reach Slashfrog’s arguments about its

damages. We thus affirm the rulings of the district court with some modification.

       I. Background Facts and Proceedings.

       On January 30, 2017, Slashfrog and Quicks signed a real estate purchase

agreement (Agreement). Slashfrog agreed to purchase three separate parcels of

real estate (property) in Des Moines from Quicks for a total purchase price of

$630,000.1 Robert Coluzzi signed the Agreement on behalf of Slashfrog as the

Member/Manager. The Agreement set June 30 as the closing date. Because the

commercial duplex experienced fire damage before execution of the Agreement,

the insurer’s scope-of-work plan directed the ongoing repairs to the structure.


1
  The sale included a twelve-unit apartment complex, two single family units, and a
commercial duplex. The commercial property, before sale, suffered fire damage, and the
scope of work to repair between Quicks and their contractor was not part of the later
agreement between Quicks and Slashfrog.
                                         3


       With the work still in progress, on March 14, Slashfrog wrote Quicks

asserting their failure to complete the scope-of-work repairs. Slashfrog contended

that failure to complete repairs would be a material breach of the Agreement. Yet

Slashfrog offered to accept the property as is for $600,000, a $30,000 reduction in

the total purchase price. Quicks responded by asserting the scope of work was

not part of the Agreement, most repairs were already complete and accepted by

the city, and Slashfrog’s contractual remedy if they determined the repairs

unacceptable was to void the Agreement. Slashfrog in turn expressed concern the

remaining repairs would not pass city inspection, which would make it impossible

to close by June 30. It then repeated its offer to accept the property as is for

$600,000.

       In a May 22 letter, Slashfrog again expressed concern about the quality and

completeness of repairs and offered to accept the property as is for $600,000.

According to the letter, “Time is of the essence and the need to take immediate

action is critical.”   Slashfrog also asserted Quicks had recently entered into

undisclosed leases of the property extending past the closing date in violation of

the agreement. In a May 24 letter, Slashfrog repeated its objection to any recent

leases extending past the closing date. On June 6, Quicks sent a letter asserting

full compliance with the Agreement.       They planned to continue to lease the

properties but provide notice as required in the Agreement.

       And so closing did not occur on June 30 as described in the Agreement.

On July 1, Slashfrog sent “a formal notice of default.” The notice stated:

       [D]efault has occurred as a result of [Quicks’] failure to abide by the
       terms of the [Agreement] to permit closing to occur on or before June
                                           4


      30 . . . . The default is a result of but not limited to the following
      provisions of the [Agreement]
         1) Paragraph 6
         2) Paragraph 7
         3) Paragraph 10
         4) Paragraph 12
         5) Paragraph 15
         6) Paragraph 17(a)
         7) Paragraph 17(c)
         8) Paragraph 17(d)
         9) Paragraph 17(g)
         10) Paragraph (h)
         11) Paragraph 22(c)
         12) Paragraph 22(d)
         13) Paragraph 22(f)
         14) Paragraph 22(h)

Quicks responded with their own letter asserting Slashfrog was in default.

      With the contracted closing date behind them, on July 12, Slashfrog sent a

letter stating “as a result of the numerous breaches of the Agreement [Slashfrog]

will not be closing on the sale of the Property.” Slashfrog specifically alleged

Quicks breached the Agreement by entering into leases continuing beyond June

30 and failing to maintain the property. Slashfrog advised it would pursue legal

remedies under the Agreement unless the parties entered into an amended

agreement with new terms.          Those terms required closing on September 1,

removal of all tenants before closing, and a total purchase price of $580,000. On

July 14, Quicks sent their own letter alleging Slashfrog defaulted under the

Agreement and the transaction was terminated.

      On July 26, Slashfrog sued the Quicks claiming breach of contract and

fraudulent inducement theories. Slashfrog sought monetary damages. Quicks

answered    and      filed   a   counterclaim   alleging   breach   of   contract   and

unconscionability.     On October 1, 2018, the court granted partial summary
                                           5


judgment for Slashfrog, rejecting Quicks’ counterclaim the Agreement was

unconscionable. Then during the multi-day trial on the remaining issues, Slashfrog

withdrew its claim of fraudulent inducement. On December 7, the court entered its

ruling, finding both parties breached the contract without excuse and dismissing

both parties’ breach-of-contract claims.

         Slashfrog appeals and Quicks cross-appeal. Slashfrog claims it did not

breach the Agreement and, in the event of remand, the court erred in excluding

evidence of its damages. Quicks claim that the court erred in granting summary

judgment against its claim of unconscionability and that they substantially

performed under the Agreement.

         II. Standard of Review.

         We review a breach-of-contract claim for correction of errors at law. Metro.

Prop. & Cas. Ins. Co. v. Auto-Owners Mut. Ins. Co., 924 N.W.2d 833, 839 (Iowa

2019). The district court’s factual findings “are binding on us if supported by

substantial evidence.” Id.; Iowa R. App. P. 6.904(3)(a). We review an evidentiary

ruling for abuse of discretion. Hall v. Jennie Edmundson Mem’l Hosp., 812 N.W.2d

681, 685 (Iowa 2012). We review a grant of summary judgment for correction of

errors at law. C & J Vantage Leasing Co. v. Wolfe, 795 N.W.2d 65, 73 (Iowa 2011).

In evaluating summary judgment, courts “view the evidence in the light most

favorable to the nonmoving party, who is entitled to every legitimate inference that

we may draw from the record.” Nelson v. Lindaman, 867 N.W.2d 1, 6–7 (Iowa

2015).
                                         6


       III. Unconscionability.

       New to real estate ventures, Quicks admittedly sought no legal help and

failed to read the contract before executing the Agreement. They now complain

about the terms. Quicks argue the court erred in granting summary judgment for

Slashfrog on their claim the Agreement was unconscionable. As evidence of

unconscionability, they point to Slashfrog’s role in drafting the Agreement and their

less sophisticated position as individuals contracting with a real estate company.

As further proof of unfairness, they highlight the provision in the Agreement that

provided for “retention of the [$5000] Earnest Money as [Quicks’] sole remedy” to

any Slashfrog breach.

       A contract is unconscionable where no person in his or her right
       senses would make it on the one hand, and no honest and fair
       person would accept it on the other hand. In considering such
       claims, we consider the factors of “assent, unfair surprise, notice,
       disparity of bargaining power, and substantive unfairness.”
       However, the doctrine of unconscionability does not exist to rescue
       parties from bad bargains.
              This doctrine encompasses both procedural abuses arising
       from the contract’s formation and substantive abuses related to the
       contract's terms.      Procedural unconscionability involves an
       advantaged party’s exploitation of a disadvantaged party's lack of
       understanding, unequal bargaining power between the parties, as
       well as the use of fine print and convoluted language. Substantive
       unconscionability involves whether or not the substantive terms of
       the agreement are so harsh or oppressive that no person in his or
       her right senses would make it. Finally, whether an agreement is
       unconscionable must be determined at the time it was entered.

C & J Vantage, 795 N.W.2d at 80–81 (citations omitted).

       In granting summary judgment for Slashfrog, the court fully addressed

Quicks’ arguments:

       The tenets set forth [in C & J Vantage, 795 N.W.2d at 80–81,] do not
       benefit [Quicks] either as to either procedural or substantive due
       process. [Quicks] assert that they did not have an attorney represent
                                            7


       them during the formation of the purchase agreement, and for
       purposes of this ruling the Court accepts that assertion as an
       undisputed fact. However, it is also undisputed that Quicks had
       ample time to obtain the services of an attorney, particularly since
       they chose when to list the property for sale. If [Quicks] had no
       attorney, it was because they chose not to have one. There is no
       evidence that Slashfrog played any role in the Quicks’ decision not
       to utilize an attorney. Furthermore, it is undisputed that Quicks did
       not read the purchase agreement before they signed it. The
       remedies provision of the contract is plain on its face. It is not
       contained in fine print, nor is it convoluted. Parties to a contract who
       do not read the contract cannot be heard to complain the contract is
       unconscionable for lack of understanding or only the non-diligent
       would prevail. Nor can they claim unfair surprise for the same
       reason.
                [Quicks] make substantial claims of oppressive and wrongful
       conduct on the part of Slashfrog. However, the conduct complained
       of all is alleged to have occurred after the parties entered the
       purchase contract. If the Quicks prove their allegations, they may
       establish their claim that plaintiff breached the contract. But the
       allegations do not support a claim for unconscionability, set forth in
       [C & J Vantage, 795 N.W.2d at 80–81,] because they concern
       matters occurring after the purchase agreement was executed. The
       Court cannot conclude that the contract is one that no person in his
       or her right mind would enter. While Slashfrog is a corporate entity
       and Quicks are individuals, that in and of itself does not mean that
       they had unequal bargaining power in entering this transaction, and
       there is no other evidence to support such a contention.

       For these reasons, we agree with the district court. Viewing the evidence

in the light most favorable to Quicks, we find no error in granting summary

judgment for Slashfrog on Quicks’ claim of unconscionability.

       IV. Breach of Contract.

       We next address the breach-of-contract claims. To prevail on a breach-of-

contract claim, a party must prove it “performed all the terms and conditions

required under the contract.”2 Royal Indem. Co. v. Factory Mut. Ins. Co., 786


2
  The elements of a breach of contract are: “(1) the existence of a contract; (2) the terms
and conditions of the contract; (3) that it has performed all the terms and conditions
required under the contract; (4) the defendant's breach of the contract in some particular
                                           8


N.W.2d 839, 846 (Iowa 2010). A party’s own breach must be material to defeat its

breach-of-contract claim. See Van Oort Constr. Co. v. Nuckoll’s Concrete Serv.,

Inc., 599 N.W.2d 684, 693 (Iowa 1999). The court found both parties’ breach-of-

contract claims failed because both parties materially breached the Agreement.

We separately address each claim.

       A. Slashfrog. The court found Slashfrog committed multiple breaches of

the Agreement. In essence, it failed to “act in accord with the principles of good

faith and fair dealing.” All contracts contain an implied duty of good faith and fair

dealing. Alta Vista Props., LLC v. Mauer Vision Ctr, PC, 855 N.W.2d 722, 730

(Iowa 2014). “The underlying principle is that there is an implied covenant that

neither party will do anything which will have the effect of destroying or injuring the

right of the other party to receive the fruits of the contract.” Id. (quoting Am. Tower,

L.P. v. Local TV Iowa, L.L.C., 809 N.W.2d 546, 550 (Iowa Ct. App. 2011)). “The

implied covenant of good faith and fair dealing, however, ‘does not give rise to new

substantive terms that do not otherwise exist in the contract.’” Id. at 731 (quoting

Bagelmann v. First Nat’l Bank, 823 N.W.2d 18, 34 (Iowa 2012)).

       The court found Slashfrog foremost “breached the [A]greement by

continually insisting on Quicks complying with supposed terms of the [Agreement]

which did not exist, especially the Scope of Work and ‘time is of the essence’

arguments.” Slashfrog argues its references to the scope of work were necessary

to understand the “improvements” to the commercial duplex that Quicks had to

“fully complete[ ] and [have] accepted by the City” under the Agreement. The court



way; and (5) that plaintiff has suffered damages as a result of the breach.” Westhoff v.
Am. Interins. Exch., 250 N.W.2d 404, 408 (Iowa 1977).
                                             9


relied on the integration clause in the Agreement and the parol evidence rule in

finding the scope of work was not part of the Agreement.3 Regardless of the

meaning of “improvements” in the Agreement, the court found Slashfrog’s concern

over the improvements was “groundless” as the city accepted the repairs on May

23, long before the scheduled closing. Nor does Slashfrog deny it improperly

claimed time was of the essence after executing the Agreement.                    Slashfrog

undercut its time-is-of-the-essence argument in its July 12, 2017 offer to extend

closing to September 1 in exchange for a $50,000 reduction in the purchase price.

And as the court noted, Slashfrog “[i]nexplicably” and completely abandoned any

time-is-of-the-essence argument at trial during cross-examination of its attorney.

       The court also found Slashfrog “breached the contract with its July 1, 2017

notice of default.” This notice simply alleged Quicks breached several provisions

of the Agreement without specifying the breach or steps Quicks could take to cure

the breach. This notice violated the Agreement’s requirement to “[specify] the

occurrence and [describe] such default.”4             Additionally, the court observed

“Slashfrog was unable to identify at trial what some of the claimed defaults were.”



3
  “The parol evidence rule is one of substantive law which forbids the use of extrinsic
evidence to vary, add to, or subtract from a written agreement. But the rule does not come
into play until by interpretation the meaning of the writing is ascertained.” Salsbury v. Nw.
Bell Tel. Co., 221 N.W.2d 609, 611 (Iowa 1974). Even if Slashfrog argues the court
improperly used the parol evidence rule to exclude certain evidence from the record,
Slashfrog did not make a sufficient offer of proof to preserve this issue for our review.
Brooks v. Holtz, 661 N.W.2d 526, 529 (Iowa 2003) (“Our rules of evidence provide that
error may not be predicated on a ruling excluding evidence unless ‘the substance of the
evidence was made known to the court by offer or was apparent from the context within
which questions were asked.’” (quoting Iowa R. Evid. 5.103(a)(2)).
4
  The Agreement also allows a party to terminate the Agreement or otherwise seek a
contractual remedy for a breach only if “such breach continues for thirty (30) days following
written notice” of the breach. We note Slashfrog filed its petition beginning this suit on
July 26, 2017, less than thirty days after its default letters dated July 1 and July 12.
                                         10


       Essentially, the court found Slashfrog not credible in explaining why it

repeatedly claimed breach and sought price reductions.         As the court found,

“Coluzzi told [Quick’s realtor] during the spring of 2017 that he would end up with

the subject property one way or the other. One way was honoring the terms of the

purchase agreement; Slashfrog focused throughout on the other way.” Slashfrog’s

actions before and after the scheduled closing—including its groundless concerns

over repairs, improper claim that time was of the essence, and deficiently vague

notice of default—provide substantial evidence to support the court’s finding.

Thus, the court did not err in finding Slashfrog breached various provisions,

particularly its duty of good faith and fair dealing under the Agreement.

       B. The Quicks. The court found Quicks breached the Agreement by

entering into new leases that would expire after the June 30 closing. Quicks

acknowledge they entered into such leases, but they argue their actions regarding

the new leases constituted substantial performance under the Agreement. We

engage in contract construction to determine the legal effect of the contract. Peak

v. Adams, 799 N.W.2d 535, 543 (Iowa 2011). “In the construction of written

contracts, the cardinal principle is that the intent of the parties must control, and

except in cases of ambiguity, this is determined by what the contract itself says.”

Id. (quoting Iowa R. App. P. 6.904(3)(n)).

       The Agreement required Quicks to provide various property information,

including tenant and lease information, to Slashfrog within three days of execution.

Quicks were also required to warrant and represent, “There are no leases for the

Property which will extend beyond the date of the Closing which have not

otherwise been disclosed to [Slashfrog].” The plain language of these provisions
                                            11


required Quicks—within three days of signing the Agreement—to disclose all

leases that were to extend beyond the closing date.

       To be certain, any leases entered into after execution of the Agreement on

January 30, 2017, would have been undisclosed at the time of contracting and

breached the Agreement. That said, Quicks argue they substantially performed

all terms required of them under the Agreement.              “In the area of contracts,

substantial performance is performance without a material breach, and a material

breach results in performance that is not substantial.” Flynn Builders, L.C. v.

Lande, 814 N.W.2d 542, 546 (Iowa 2012). To identify a material breach, Iowa

uses the Restatement (Second) of Contracts, which

       looks to the injured party and asks to what extent that party will be
       deprived of the benefit it reasonably expected, account being taken
       of the possibility of adequate compensation for that part. It also looks
       to the other party–to the possibility that it will suffer forfeiture, to the
       likelihood that it will cure its failure, and to the degree that its behavior
       comported with standards of good faith and fair dealing. Most
       significant is the extent to which the breach will deprive the injured
       party of the benefit that it justifiably expected.

Van Oort Constr. Co., 599 N.W.2d at 692 (quoting II E. Allan Farnsworth,

Farnsworth on Contracts § 8.16, at 496–97 (2d ed.1998)).

       Out of twelve units available for lease, Jordan Quick testified they entered

into two new leases after executing the Agreement.5 In a May 25 email from

Quicks to Slashfrog, Quicks asserted all leases were month-to-month and by

operation could not extend beyond the June 30, 2017 closing. All the same, Quicks




5
 According to the rent roll Quicks provided at closing, they entered into the new leases
on May 19 and June 21.
                                            12


offered to terminate the new May 19 lease prior to closing.6 Slashfrog apparently

never accepted this offer.

       While Quicks entered into two new leases before closing, these leases were

month-to-month and easily terminated.            To vacate all tenants for substantial

renovations of the buildings after closing, as Coluzzi testified he planned to do,

Slashfrog would have to terminate these new month-to-month leases in the same

manner and time as the original properly disclosed leases. Because the two new

leases would not have significantly interfered with Slashfrog’s stated plans to

renovate the buildings, Quicks did not deprive Slashfrog of any benefit it justifiably

expected. See id. Furthermore, another “justification for allowing a party to

suspend future performance is that withholding further performance may be a

means of securing future performance by the breaching party.” Id. at 693. Had

Quicks believed their next move in terminating the lease would not be met with

another attempt to “bludgeon” a new deal, the breach would likely have been

cured. Thus, Quicks are entitled to their sole remedy under the Agreement—

retention of the earnest monies.

       V. Slashfrog’s Damages Evidence.

       Because we find Slashfrog breached the Agreement and do not remand the

case, we do not reach the admissibility of Slashfrog’s evidence of damages.




6
 Quicks’ attorney wrote to Slashfrog’s attorney: “While Mr. Quick and myself disagree with
your interpretation that a month-to-month lease should be considered a lease that extends
beyond the date of closing Mr. Quick is willing to serve a 30 day notice on #1 to terminate
his tenancy.”
                                        13


      VI. Conclusion.

      We find no error in granting summary judgment in favor of Slashfrog on

Quicks’ unconscionability claim and in finding Slashfrog breached the contract.

However, we find Quicks substantially performed their obligations under the

Agreement and award them the earnest money deposit. Given these findings, we

do not reach Slashfrog’s arguments over its claimed damages. We thus affirm the

district court on Slashfrog’s appeal and affirm as modified on Quicks’ cross-appeal.

      AFFIRMED ON APPEAL; AFFIRMED AS MODIFIED ON CROSS-

APPEAL.
