                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0105
                             Filed October 14, 2015


VIRGIL JOHNSON and VIRGIL JOHNSON TRUCKING,
     Plaintiffs-Appellants,

vs.

ASSOCIATED MILK PRODUCERS, INC.,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Allamakee County, Margaret L.

Lingreen, Judge.



      Plaintiffs appeal a district court decision granting summary judgment to

defendant on their action for breach of contract. REVERSED AND REMANDED.



      John S. Anderson and Stephen J. Belay of Anderson, Wilmarth, Van Der

Maaten, Belay, Fretheim, Gipp & Zahasky, Decorah, for appellants.

      Matthew C. Berger of Gislason & Hunter, L.L.P., New Ulm, Minnesota, for

appellee.



      Heard by Doyle, P.J., Eisenhauer, S.J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, Senior Judge.

       Virgil Johnson and Virgil Johnson Trucking filed a petition claiming a sum

due, alleging that Associated Milk Products, Inc. (Associated) had breached its

contract to pay specific sums for delivering milk to Associated’s Arlington plant.

Associated filed a motion for summary judgment alleging that the contract had

been modified or replaced beginning September 1, 2013, and that all sums due

had been paid in full. The motion was granted. Johnson has appealed.

   I. Background Facts

       In September 2001, Johnson and Associated entered into an oral

agreement whereby Johnson was to pick up milk from dairy farms and deliver it

to Associated’s plant in Arlington. Johnson was paid so many cents per gallon

for the milk delivered and $100 a trip for each load delivered.

       In a letter dated July 31, 2013, Associated advised Johnson that it was

reducing the trip charge by twenty-five dollars per month beginning September 1,

and twenty-five dollars more for each succeeding month until December 1, 2013,

when the trip charge would be totally eliminated.          There was no specific

agreement in the original contract as to its duration or the method by which it

could be amended or terminated.

       Neither party expressly or formally terminated the contract.      Instead,

Johnson continued to deliver the milk and Associated continued to accept it.

Johnson protested the amendment by continuing to bill Associated for the trip

charge as well as the gallonage charge. Associated paid in accordance with its

July 31 letter.   This arrangement continued until a formal written notice of

termination was given by Associated on November 12, 2014, which terminated
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the agreement effective December 2, 2014.        However, in January of 2014,

Johnson had filed a petition claiming sums due as provided by the original

contract. Associated filed a motion for summary judgment and it was granted.

   II. Scope of Review

      Summary judgments are reviewed for errors of law. Phillips v. Covenant

Clinic, 625 N.W.2d 714, 717 (Iowa 2001).

   III. Error Preservation

      Issues must be raised in district court and ruled on before they will be

considered on appeal. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).

Johnson filed a resistance to the motion, thereby preserving error.     See Bill

Grunder’s Sons Constr., Inc. v. Ganzer, 686 N.W.2d 193, 197-98 (Iowa 2004).

   IV. Discussion

      When a motion for summary judgment is filed the burden is on the moving

party to demonstrate he is entitled to judgment. Sabin v. Ackerman, 846 N.W.2d

835, 839 (Iowa 2014). On appeal the record is reviewed in the most favorable

light to the nonmoving party.     Id.   Even if facts are undisputed, summary

judgment is not appropriate if reasonable minds could reach different conclusions

based on inferences that can be drawn from the undisputed facts. Id.

      Generally, a modification to an existing contract requires a new

consideration, while a revision or termination of an existing contract and a

replacement with a new contract does not require a new consideration. Recker

v. Gustafson, 279 N.W.2d 744, 755-56 (Iowa 1979). The problem is determining

whether there has been a revision and a new contract formed or an ineffective

attempt to modify a contract without consideration.
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       If a contract does not contain an express or implied period of duration the

court will generally construe the contract to be a contract terminable at will.

Shelby Cnty. Cookers, L.L.C. v. Util. Consultants Int’l, Inc., 857 N.W.2d 186, 191

(Iowa 2014).    The parties do not dispute that the initial contract could be

terminated by either of them after providing a reasonable notice. Associated

contends, and the district court agreed by granting the motion for summary

judgment, that the contract between Johnson and Associated was terminated by

the July 31 letter. Johnson, by continuing to deliver the milk, in effect consented

to the termination and to a new contract that deleted the trip charges in

accordance with the July 31 letter. There is no contention that any consideration

supported the change in the payment schedule or that either party specifically

referenced revision or termination, either orally or in writing, until the letter of

December 12.

       A very similar situation was addressed by our Supreme Court in

Davenport Osteopathic Hospital Ass’n v. Hospital Service, Inc., 154 N.W.2d 153

(Iowa 1967). Hospital had agreed to provide services to Blue Cross subscribers.

Davenport Osteopathic Hosp. Ass’n, 154 N.W.2d at 156. The contract between

the parties had a ninety-day termination clause. See id. A few years later Blue

Cross advised Hospital it was changing its payment formula which reduced the

charges payable to Hospital. See id. Hospital protested the new rate schedule

but Blue Cross only reimbursed by the new schedule even though Hospital

continued to charge in accordance with the original agreement. See id. Blue

Cross contended that by failing to officially terminate or rescind the contract and

instead accepting the reduced payment the hospital agreed to the modification.
                                         5

See id. at 158. The court noted that neither party elected to rescind and awarded

Hospital recovery under the terms of the initial contract.     See id. The court

stated, “The law does not sanction breach of contract as a means of escape from

its burdensome terms nor will it reward an offending party.” Id.

       Tindell v. Apple Lines, Inc., 478 N.W.2d 428 (Iowa Ct. App. 1991), is

another similar case. Tindell had an operating lease with Apple in which he was

paid so many cents per mile for hauling Apple’s freight. Tindell, 478 N.W.2d at

429. The agreement was subject to a thirty-day notice of termination. See id. at

429-30. Apple prepared an addendum decreasing the rate but Tindell did not

sign it and advised Apple he would not accept the rate change. See id. at 430.

Tindell continued to haul and accept payments at the reduced rate. See id. The

court found Apple owed Tindell for the period in which it unilaterally reduced the

rate of pay. See id. at 431-32.

       Associated contends that Davenport Osteopathic and Tindell can be

differentiated on the grounds that both contracts had termination clauses that

required a notice and a lapse of time before the actual termination. Associated

further contends in a case where an agreement requires a time lapse between

the notice and the termination it is not a contract at will. Associated reasons that

in a contract at will a request to change by either party is an automatic

termination of the original contract. If the other party continues to perform, a new

contract has been formed in accordance with the requested modification.

       It is true that both Davenport Osteopathic and Tindell have specific

termination clauses, but all contracts at will can be terminated only after

reasonable notice of termination. See Hess v. Iowa Light, Heat & Power Co.,
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221 N.W. 194, 196-97 (Iowa 1928). There is no logical or rational reason that a

contract that in effect allows either party to terminate at will, but contains an

agreed upon reasonable termination notice should be treated as a contract for a

specific term rather than a contract at will. Associated has not directed the court

to any Iowa case that has been based on that distinction. It is distinction without

meaning as it relates to the factual situation under consideration. Associated

provided a reasonable notice when it finally terminated the contract.

      Associated and the district court liken the case under consideration to an

employment at will contract. An employment contract is terminable at will and

subject to modification at any time, leaving the other party with only the

alternatives of accepting the modification or terminating the relationship. See

Willits v. City of Creston, 433 N.W.2d 58, 62 (Iowa Ct. App. 1988); Moody v.

Bogue, 310 N.W.2d 655, 661 (Iowa Ct. App. 1981). There has been a long

standing legal distinction between employees and independent contractors.

Harvey v. Care Initiatives, Inc., 634 N.W.2d 681, 683-84 (Iowa 2001).          The

concept of employment contracts as contracts at will is firmly rooted in Iowa law.

Fogel v. Trustees of Iowa Coll., 446 N.W.2d 451, 455 (Iowa 1989). Employment

contracts have been considered unilateral contracts where one party makes an

express agreement and the other party makes no promise but accepts by

rendering some performance. See Anderson v. Douglas & Lomason Co., 540

N.W.2d 277, 282-83 (Iowa 1995); Drake v. Block 74 N.W.2d 577, 80 (Iowa 1956).

      Johnson entered into his relationship with Associated as an independent

subcontractor and not as an employee and that relationship continued.          The

contract between the two parties was a bilateral contract subject to modification
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by agreement. The fact that employment contracts and service contracts with an

independent contractor are treated differently is exemplified by the cited cases.

       Assent to a modification may be implied from the acts of the other party

when a bilateral contract exists but whether such a contract has been modified is

ordinarily a question of fact.   See Davenport Osteopathic Hosp. Ass’n, 154

N.W.2d at 157.     The district court applied the rules applicable to contracts

between an employer and employee and concluded as a matter of law that

Johnson accepted the terms of the proposed modified contract when he

continued to haul milk after the proposal was made. The rule utilized is not

appropriate when a service contractor as opposed to an employee is involved.

       Although the facts are primarily undisputed, those facts do not support

Johnson’s acceptance of Associated’s proposed modification as the only, or

probable, conclusion that can be drawn from those facts.

       We therefore reverse and remand for further proceedings consistent with

this opinion.

       REVERSED AND REMANDED.
