                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1746
                               Filed July 27, 2016


BRIAN LIPHARDT AND TRACY LIPHARDT,
     Plaintiff-Appellants,

vs.

SCOTT RYAN SHAW, Individually, and
INFINITY CONSTRUCTION, a sole proprietorship,
      Defendant-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Clinton County, Mark J. Smith,

Judge.



      Homeowners appeal the district court’s dismissal of their breach of

contract claim. AFFIRMED.




      David M. Pillers of Pillers and Richmond, Clinton, for appellants.

      Scott Ryan Shaw, DeWitt, appellee pro se.



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


TABOR, Judge.

       Brian and Tracy Liphardt hired Scott Shaw, owner and sole proprietor of

Infinity Construction, to renovate their home. After various problems throughout

the construction, the Liphardts sued Shaw and his company1 for breach of

contract and unjust enrichment.2 On appeal, the Liphardts claim the district court

erred in finding no written contract existed and also claim the court should have

ruled Shaw was unjustly enriched.           Because substantial evidence exists to

sustain the district court’s contract finding and because the Liphardts failed to

preserve error on their unjust enrichment claim, we affirm.

       I.      Facts and Prior Proceedings

       Expecting their fifth child, the Liphardts wanted to convert their existing

garage into two bedrooms, an office, and a bathroom; build a new garage; and

make other improvements to their home. In October 2012, they communicated

their goals to Shaw, who was Brian’s friend and distant cousin.          In the words of

the district court: “As is true in a lot of situations involving tentative agreements

between friends and relatives, the parties entered into a vague proposal that

involved the remodeling of an existing garage and the construction of another

garage.”

       Shaw provided the Liphardts with a document that the Liphardts later

called a “contract” and the district court eventually characterized as a “tentative

bid” to cover “some of the items the Liphardts wanted to be done.”            The form—


1
  For convenience, we will refer to both Shaw, individually, and his company as “Shaw.”
2
  The Liphardts raised a negligence claim in their petition, but the district court did not
rule on the basis of negligence, and the Liphardts do not argue that issue on appeal.
Therefore, we do not address the negligence claim.
                                         3


on Shaw’s letterhead—was entitled “Remodel and garage addition” and started

off with Brian’s contact information. The first page of the four-page document

included a left-hand column listing supplies and tasks for the construction project

and a right-hand column listing the estimated costs. On the first page of the

form, Tracy jotted a handwritten edit showing an increased cost estimate to roof

the addition on the house. The second page was entitled, “PROJECT: Brian’s

material list,” and categorized how much of various supplies such as siding,

house wrap, and facia would be needed for the project. The third page had pre-

printed lines for the customers and the contractor to sign and date, but the lines

were left blank.    The fourth page was headed Brian’s “list of materials to

purchase” and itemized the tub, sink, mirrors, fans, doors, lighting, and cabinetry.

The total cost estimate was $45,520.

      As construction began in the fall of 2012, it became apparent the parties

harbored different understandings of Shaw’s role in the project. The Liphardts

purchased all the materials for the project and directly paid the roofer and

excavator—tasks they claim in the suit were Shaw’s responsibility. Shaw did the

plumbing, heating, ductwork, and electrical installations.    The Liphardts knew

Shaw was not licensed to perform those tasks, nor was he a licensed contractor.

The Liphardts paid Shaw $7,500 in three payments.

      In January 2013, the Liphardts began paying Shaw’s employees directly.

According to the Liphardts, they told Shaw several of the tasks remained

incomplete or had flaws, but Shaw failed to address their concerns.           Shaw

stopped coming to the site in April 2013. The Liphardts hired other workers to

complete the projects, and some of the construction remained incomplete.
                                           4


       In July 2014, the Liphardts filed a petition alleging they entered into a

contract with Shaw and Shaw breached that contract by performing defective

work and failing to complete the project.           In August 2014, Shaw filed a

counterclaim, alleging the Liphardts failed to compensate him fully for his work

before he left the project.

       Following a bench trial in September 2015, the district court found, “[a]fter

work ceased, Shaw was not aware of any defective workmanship alleged by [the

Liphardts].” Rather, the first notice Shaw received “was when he was served

with this lawsuit.”     The court branded the alleged contract as “tentative

agreements between friends and relatives,” a “vague proposal,” and a “tentative

bid.” The court ruled the Liphardts “failed to prove a specific contract agreement”

existed.3 The Liphardts now appeal that decision. The court also dismissed

Shaw’s counterclaim for failure of proof, but Shaw did not file a cross appeal.

Shaw also did not file an appellee’s brief.

       II.    Scope and Standard of Review

       An action for a money judgment based on breach of contract is at law.

See Quigley v. Wilson, 474 N.W.2d 277, 279 (Iowa Ct. App. 1991). Our review,

accordingly, is for correction of errors at law. Iowa R. Civ. P. 6.907.

       If supported by substantial evidence, “[t]he district court’s findings of fact

have the effect of a special verdict” and are binding on us. NevadaCare, Inc. v.


3
  The court also ruled it was “unable to determine whether the oral agreement was
breached.” On appeal, the Liphardts allege “the parties entered into a specific contract”
as shown by “their exhibit one”—Shaw’s form. They also note Shaw drafted the contract
“on a form that he normally uses this very document as a contract for his customers.”
But on appeal the Liphardts do not challenge the court’s failure to find the existence of
an oral contract. Thus, we confine our analysis to whether substantial evidence
supports the court’s findings as to a written contract.
                                         5

Dep’t of Human Servs., 783 N.W.2d 459, 465 (Iowa 2010).          “We construe the

district court's findings broadly and liberally.” Hawkeye Land Co. v. Iowa Power

& Light Co., 497 N.W.2d 480, 483 (Iowa Ct. App. 1993). If we perceive ambiguity

in the record, “we construe the findings to uphold, rather than defeat, the district

court’s judgment.” Id.

      III.   Analysis

      A. Breach of Contract

      The Liphardts challenge the district court’s ruling that they failed to prove

the existence of a written contract with Shaw. The Liphardts claim the document

on Shaw’s letterhead should be considered to be a contract because it was

written on the form Shaw commonly used for construction contracts, its essential

terms were reasonably certain, and the parties demonstrated their mutual

agreement to the form by their subsequent actions.

      A party seeking to recover on a contract term has the burden to prove the

contract’s existence. Anderson v. Douglas & Lomason Co., 540 N.W.2d 277,

283 (Iowa 1995). The contract’s terms must be sufficiently definite to allow the

court to determine the conditions of performance and the duties of the parties.

Royal Indem. Co. v. Factory Mut. Ins. Co., 786 N.W.2d 839, 846 (Iowa 2010).

The parties must reach a meeting of the minds, expressing mutual assent to the

material terms. Schaer v. Webster Cty., 644 N.W.2d 327, 338 (Iowa 2002). Iowa

courts apply an objective standard to determine whether mutual assent existed

by considering the language used, the situation and surrounding circumstances,

and the inferences reachable by reasonable persons. Royal Indem. Co., 786

N.W.2d at 846; McCarter v. Uban, 166 N.W.2d 910, 913 (Iowa 1969). A contract
                                               6


may be formed even without the parties’ signatures, so long as the parties

manifest mutual assent. Serv. Emps. Int’l v. Cedar Rapids Cmty. Sch. Dist., 222

N.W.2d 403, 407 (Iowa 1974).

          The district court concluded Shaw’s form listing estimated costs of the

project supplies and labor was not sufficiently definite to determine the conditions

of performance and what, if any, terms were breached. We find substantial

evidence in the record supporting the district court’s conclusions. The document

prepared by Shaw included no narrative to assign specific responsibilities to any

party. “It is axiomatic that understandable or ascertainable terms are necessary

ingredients for an enforceable contract.” Air Host Cedar Rapids, Inc. v. Cedar

Rapids Airport Comm’n, 464 N.W.2d 450, 453 (Iowa 1990).

          The uncertain responsibilities were reflected in Tracy’s testimony. She

told the court that “initially the price was supposed to include materials, but we

ended up purchasing the materials ourselves.” Brian agreed the responsibility for

purchasing the building supplies shifted from the homeowners’ original intent

after reading Shaw’s cost estimates.4 In its ruling, the court noted the alleged

contract “was not followed from the beginning since the plaintiffs agreed to pay

for the materials themselves to save money.”




4
    Brian Liphardt testified:
                  Q. So why did you end up buying the materials? A. Because he
          showed up on a Sunday and said, “Let’s go.” . . . I said, “All right.” So he
          took my truck, my trailer, went to Menards, and we were going through all
          of it and getting everything, and towards the end . . . he goes, “Well, why
          don’t you just use your card to pay; you could save some money.” “I
          guess, fine.”
                  Q. Was that originally your intent that you were going to . . . A.
          “Not at all.”
                                            7


       Shaw testified the document he provided the Liphardts was “an estimate

as to what [he] thought it would cost.” Shaw emphasized he did not purchase

any of the materials for the project and did not pay any of the subcontractors; the

Liphardts paid all of those costs directly. Shaw told the court: “I had no problem

with that. They didn’t seem to have a problem with that.”

       While the document drafted by Shaw attempted to incorporate the scope

of the remodeling project, it was not an exhaustive list. The Liphardts testified

they considered additional tasks not included on the form as part of the project.

While Shaw did work on some of the listed tasks, it is not clear from the form that

he alone was responsible for their completion. While Shaw and the Liphardts

may have reached a “tentative” agreement regarding the remodeling project,

substantial evidence supports the district court’s finding the Liphardts failed to

show a meeting of the minds. See Schaer, 644 N.W.2d at 338. We affirm the

district court’s decision on the contract issue.5

       B. Unjust Enrichment

       The Liphardts claim the “district court erred in not holding [Shaw] had

been unjustly enriched.” Issues must both be raised and decided by the district

court before we will consider them on appeal. Meier, 641 N.W.2d at 538. When

an issue is raised by a party, but the district court fails to provide a ruling, the



5
  Within the breach of contract claim on appeal, the Liphardts contend Shaw breached
both an implied warranty that his work would be done in a workmanlike manner and an
implied warranty of fitness for a particular purpose. The Liphardts failed to raise the
implied warranty claims independent of the breach of contract claim in their petition, and
the district court did not rule on either implied warranty claim. Therefore, we do not
consider these causes of action on appeal. Meier v. Senecaut, 641 N.W.2d 532, 538
(Iowa 2002).
                                         8


party raising the issue must “file a motion requesting a ruling in order to preserve

error for appeal.” Id. In this case, the district court did not address the unjust

enrichment claim. Thereafter, the Liphardts did not file a motion seeking an

expanded ruling. See Iowa R. Civ. P. 1.904(2). Accordingly, the Liphardts failed

to preserve the issue for our review.

       AFFIRMED.
