                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-1131
                                Filed June 10, 2015

NEWTON MANUFACTURING
COMPANY,
    Plaintiff-Appellee,

vs.

DOYLE CLEMMONS, d/b/a
MAXXSTAR, LLC,
     Defendant-Appellant.
_____________________________________

DOYLE CLEMMONS, d/b/a
MAXXSTAR, LLC,
    Counterclaim Plaintiff,

vs.

NEWTON MANUFACTURING
COMPANY,
     Defendant to Counterclaim.
________________________________________________________________

       Appeal from the Iowa District Court for Jasper County, Randy V. Hefner,

Judge.

       An independent contractor appeals the district court’s ruling in a breach-

of-contract lawsuit. AFFIRMED.

       Whitney C. Judkins of Fiedler & Timmer, P.L.L.C., Urbandale, and Brett

Charhon and Martin C. Robson of Charhon Callahan Robson & Garza, PLLC,

Dallas, Texas, for appellant.

       Christopher P. Jannes of Davis, Brown, Koehn, Shors & Roberts, PC, Des

Moines, for appellee.

       Heard by Tabor, P.J., and Bower and McDonald, JJ.
                                      2



TABOR, P.J.

      This case involves a series of contracts between Newton Manufacturing

Company (Newton), an Iowa business specializing in promotional materials, and

Doyle Clemmons, an independent contractor from Texas who sold Newton’s

products.   Their working relationship broke down in 2012 when Clemmons

placed orders with a local competitor. Thereafter, Newton terminated its June

2012 sales agreement with Clemmons, effective November 2012. At the time of

the termination, Clemmons owed Newton more than $58,000 in incentives

Newton had advanced under the parties’ previous contracts. Newton sued to

recover the incentive balance, and Clemmons, as an affirmative defense,

claimed Newton materially breached the 2012 sales agreement, excusing his

own performance.     Clemmons also counterclaimed for unpaid commissions

involving a software product. The district court ruled Clemmons owed Newton for

the incentives, Newton owed Clemmons unpaid commissions for the software

product for November and December 2012, and Newton’s failure to pay those

two months of commissions was not a material breach.        The court rejected

Clemmons’s “assignment” counterclaim. Finding no error, we affirm.

I. Background Facts and Proceedings

      Newton produces promotional materials for sales purposes with its

business divided between “core” business and “corporate programs.” The “core”

business includes one-time orders for items such as coffee mugs, pens,

calendars, or tee shirts.   The “corporate-program” offers website products.
                                       3



Newton entered agreements with independent contractors to sell its products and

paid them commissions.

      A. Newton-Clemmons Contracts. On January 1, 2004, Newton and

Clemmons, who was doing business as sole proprietorship Maxxstar, entered

into the first of their three written contracts. The 2004 contract was for four

years, until December 31, 2008, and established a commission and bonus

schedule for Clemmons.      Under this contract, Newton advanced Clemmons

$150,000 as a one-time “Initial Incentive” and also advanced a one-time “Volume

Incentive” of $35,000, or $185,000 in total incentive payments. These payments

were in consideration for Clemmons (1) providing Maxxstar’s customer list to

Newton, (2) supplementing the customer list, and (3) granting Newton “exclusive

relationships with the client accounts named therein.” The parties agreed “any

violation of this right of exclusivity will constitute a material breach of this

Agreement.”

      As for repayment of the incentives, for each contract year in which

Clemmons achieved his annual sales goals, Newton would annually amortize or

reduce “$37,000 of the $185,000 sum.” If Clemmons failed to achieve his sales

goal in any contract year, no amortization would occur for that contract year. If

the contract was terminated before the incentives had been fully amortized,

Clemmons agreed to pay Newton the unpaid incentive balance.

      In 2008 Clemmons and Newton entered into their second contract for

another four years, from July 1, 2008, to June 30, 2012.           This contract

recognized Clemmons had not achieved the sales goals necessary to fully
                                       4



amortize the 2004 contract’s incentive payments, and Newton agreed to pay

Clemmons “a one-time incentive payment of $185,000 (the “Initial Incentive”) less

the unamortized balance from the [2004] sales agreement of $18,500” or

$166,500. As before, the incentive was in consideration of Clemmons providing

his customer list and granting Newton “exclusive relationships with the client

accounts named therein.” Under this contract, the incentive balance would be

amortized at $46,250 per year if Clemmons achieved his sales goals. As before,

Clemmons agreed to repay Newton any unpaid incentive balance.

      B. Merge 9i Contracts. In the meantime, Paragon Consulting of North

Florida, LLC (Paragon) developed the concept and process for a software

application, PB2.9, a performance-improvement program for employers.         The

program could be customized to reward employees with points for achieving

goals relevant to the employer’s specific business, such as attendance,

production, and safety. In 2008 Newton worked with Paragon to further develop

and sell the software application, and Newton and Paragon subsequently entered

into an “intellectual property license and purchase agreement” (L&P contract).

While Newton and Paragon jointly developed the branding for the program,

Newton developed and owned “software to collect participant points, design and

print scorecards, and provide management reporting.” Newton also designed

and owned “software to interface with clients, maintain performance improvement

program websites, and administer point redemptions.” Newton became the sole

owner of the trademark, Merge 9i, associated with the performance-improvement

program. Unlike Newton’s other products, the sale of Merge 9i required a more
                                        5



intensive, more detailed, and more technical sales campaign.          Additionally,

Newton needed to offer substantial customer service after the sale.

      Newton agreed to pay its sales personnel a commission based on the

“points awarded” under a Merge 9i contract between Newton and the employer-

company. On June 16, 2009, Clemmons and Jim Burt of Houston, Texas, signed

an agreement to evenly split commissions for their first two sales of Merge 9i

contracts on Newton’s behalf. Newton was not a signatory to this agreement.

Burt had a personal relationship with David Russell, the president of IFCO, a

pallet manufacturer.   Burt introduced Russell to Clemmons, and Clemmons’s

post-introduction efforts resulted in IFCO’s initial interest in the Merge 9i

program. Clemmons’s active involvement in procuring the IFCO sales contract

then ended, and Burt, Newton’s upper management, and Paragon’s Peter and

Robin Krstovic held meetings with IFCO’s upper management to close the sale.

On September 18, 2009, Newton and IFCO executed a three-year contract

licensing IFCO to use the Merge 9i program. The Newton-IFCO contract was the

first sale under the Clemmons-Burt commission-split contract.

      Under    the     Newton-IFCO    contract,   Newton    provided     post-sale

administrative services, such as assigning points to employees, providing IFCO

with monthly points statements, processing employee redemption orders, and

preparing billing statements.    Either party could terminate the contract by

providing sixty days written notice to the non-terminating party.     Thus, IFCO

could end the contract if it was unhappy with the program or with Newton’s

administration of the program.
                                              6



        Burt spent significant time servicing the IFCO contract, while Clemmons

did not. Clemmons admitted that because Burt, Larry Bayliss of Newton, and

Krstovic of Paragon were servicing the contract, IFCO “remained a client of

Newton.”1 Under the IFCO contract, Newton invoiced IFCO on a monthly basis

for “points awarded,” IFCO paid Newton, and Newton then paid the sales

commission. Despite Newton’s belief Burt was entitled to the entire IFCO sales

commission, Newton directly paid Clemmons his percentage under the Burt-

Clemmons contract.

        C.   Third Newton-Clemmons Contract.                During the second Newton-

Clemmons contract, Clemmons was not meeting his sales goals; consequently,

Newton amortized only a small portion of the 2008 sales contract’s incentive

balance.     On April 1, 2010, Newton and Clemmons executed an addendum

stating Newton would not amortize $46,250 for the year 2009 and also stating

Clemmons still owed Newton more than $150,000 of the previously advanced

“initial incentive.”

        With the 2008 Newton-Clemmons contract set to expire on June 30, 2012,

Clemmons, assisted by counsel, sent Newton a proposal for a new sales contract

in early May 2012. Clemmons proposed the 2004 and 2008 agreements be

“mutually terminated” with the parties having “no further obligations,” including his

incentive debt. Clemmons believed he could increase his income by taking his


1
  If neither party gave official notice of intention to renew or terminate within sixty days of
September 18, 2012, the Newton-IFCO contract continued for twelve months on the
same terms. It appears the Newton-IFCO contract was eventually renewed for one year
to September 18, 2013. The other Merge 9i client for which Clemmons received a
commission from Newton was Air Liquide. But Air Liquide exercised the sixty-day out
provision and dropped the Merge 9i program.
                                        7



business “direct” and therefore proposed to “cease selling core business, printing

and promotional items” while continuing to market the Merge 9i program.

Although Clemmons proposed Newton “will continue to pay Clemmons for all

existing Merge 9i contracts (IFCO . . .), for the life of the contract and on any

contract renewals in the future,” this language was not included in the final 2012

contract with Newton.

      At the end of May 2012, Newton’s treasurer, Jeffrey Stolp, responded with

a draft contract recognizing Clemmons’s obligation to repay Newton the

unamortized incentive balance of $63,571.72. Newton agreed Clemmons could

continue to market Merge 9i and proposed twenty-five percent of his Merge 9i

commissions, for the first time, be used to reduce the incentive balance. This

term was included in the final contract. Finally, Stolp included a margin comment

on the Merge 9i commission paragraph, paragraph 3(a): “Our intent is to pay

commissions through the life of the client contract not the [Newton-Clemmons]

Sales Agreement.” The language in the comment was not included in the final

contract, but paragraph 3(a) was not changed in the final contract.

      On June 12, 2012, Newton and Clemmons executed the sales agreement

at issue, which varied significantly from the Clemmons draft:

             RECITALS
             J. The Parties agree that Clemmons has an obligation to
      repay Newton the Incentive Balance of $63,571.72 in conformity
      with the terms and conditions set forth below.
             ....
             2. BASIC UNDERSTANDING. The Parties hereby agree the
      July 1, 2008 Sales Agreement and the April 1, 2010 Addendum to
      Sales Agreement (collectively, the “Prior Agreements”) are hereby
      mutually terminated . . . . The parties also agree that this mutual
      termination is prospective in effect, and does not impact any rights
                                         8



       and/or obligations that accrued while the [2008 Sales] Agreement
       and [2010] Addendum were in existence.
               3. PAYMENT OF COMMISSIONS.
                       a. Merge 9i. Commissions will be earned and paid
       according to a commission schedule of forty percent (40%) of the
       invoiced amounts for points awarded only . . . . Newton will pay
       seventy-five percent of each month’s commission directly to
       Clemmons. The remaining twenty-five percent (25%) . . . will be
       applied to the Incentive Balance . . . until such time as the Incentive
       Balance [is] paid-in-full. In the event that all monies owed are not
       paid-in-full through the application of commissions, Newton retains
       all rights with regard to said sums.

       The 2012 sales contract defined “points awarded” and also established

commissions for “Core Sales” and “Corporate Programs.”             Unlike the prior

contracts with Newton, the 2012 sales contract (1) removed Clemmons’s

obligation to meet a minimum revenue threshold, (2) did not include an

exclusivity provision, and (3) did not set an ending date.

       The record supports the district court’s finding that at the time the parties

executed the June 2012 sales contract, neither Newton nor Clemmons

“anticipated terminations of [Newton’s] sale, development, and administration of

Merge 9i programs, and specifically did not anticipate [Newton’s] discontinuation

of its involvement with the IFCO contract.”        After the June 2012 Newton-

Clemmons contract was executed, Newton continued to pay Clemmons his share

of IFCO commissions under the Burt-Clemmons contract but applied twenty-five

percent of Clemmons’s share to the unpaid incentive balance.

       D. Newton Terminates License with Paragon. Also during the summer

of 2012, Newton’s new president ordered a detailed analysis of the productivity of

Newton’s various business lines, including Merge 9i.         The analysis showed

Merge 9i was not profitable. Accordingly, Newton’s management decided to exit
                                              9



the sale and administration of the Merge 9i program, entered into negotiations

with Paragon, and on January 30, 2013, terminated its L&P contract with

Paragon, effective December 31, 2012. Regarding the September 2009 Newton-

IFCO contract, the Newton-Paragon termination and mutual release agreement

assigned Newton’s rights to Paragon. In turn and also on January 30, 2013,

Paragon assigned to Quality Incentive Company (Quality Incentive), a

Tennessee corporation, its newly obtained rights. Quality Incentive separately

contracted with some of the salespersons who had previously marketed Merge 9i

for Newton, including Burt. In his deposition testimony, Clemmons indicated he

talked with Quality Incentive about becoming a sales representative for them on

Merge 9i business.2        But at trial, Clemmons insisted he “had no intention of

working through Quality Incentive.”          The record supports the district court’s

findings: “The essential purpose underlying Newton’s decision to discontinue

development and marketing of Merge 9i was to eliminate substantial losses.

Newton’s decision was not motivated by an intent to defraud sales persons

generally, or Clemmons specifically, of commissions.”

         E. Newton Terminates the 2012 Clemmons Contract. Returning to the

Clemmons-Newton relationship, Newton inadvertently received correspondence


2
    During his deposition Clemmons testified:
                 Q. Have you ever approached either Paragon or Quality Incentive
         Company to attempt to negotiate a sales representative agreement
         whereby you could represent them to obtain commissions on Merge 9i
         business? A. I did talk to Quality Incentive. I don’t remember the date. It
         is probably around the same time I was preparing to leave because I was
         very familiar with Quality’s business. They were the fulfillment provider
         behind all our programs. And I talked to the owner, and he did agree that
         if I would like to work with them that he would be more than happy to
         have me join them.
                                       10



showing Clemmons was placing orders with Newton’s direct competitor, The

Vernon Company (Vernon), also located in Newton, Iowa.         Newton believed

Clemmons’s placement of client orders with Vernon violated an oral “gentleman’s

agreement” to place this business with Newton. In contrast, Clemmons testified

nothing prevented him from doing business through Vernon.                Clemmons

admitted after the June 2012 sales agreement was executed, he did not take all

of his “core business direct but instead [he] placed some of it with Vernon.”

Clemmons also admitted Newton’s exhibits showed he “offered” products

through Vernon to his clients before the Newton-Clemmons 2008 contract’s

exclusivity clause expired, but Clemmons insisted he did not “transact business”

though Vernon until after the 2012 contract (without an exclusivity clause) was

executed—“offering and transacting business are two different things.” At the

time of trial, Clemmons was acting as sales representative for Vernon.

      As a result of the Vernon-Clemmons interactions, Newton sent Clemmons

an October 16, 2012 letter terminating the June 2012 sales agreement—a

contract of indefinite duration—as of November 15, 2012. As of November 15,

Clemmons was to “cease and desist” from representing himself “as associated

with Newton Manufacturing or with the Merge 9i product.” Newton stated it would

pay Clemmons commissions on sales “earned” prior to November 15, 2012, “in

accordance with the terms of the” 2012 contract and “subject to the amortization

and repayment rights.” Newton stated the term, “earned,” did not include “merely

introducing an independent contractor [Burt] to Newton.”     Newton demanded

Clemmons repay $58,138.36 in incentive payments and proposed terms for a
                                       11



promissory note.   Although Newton had paid Clemmons IFCO commissions

under the Burt-Clemmons contract from the time IFCO commissions were

originally generated in December 2009, Newton did not pay Clemmons IFCO

commissions for November and December 2012. Instead, Newton paid Burt the

IFCO commissions for those two months ($29,346.57). Stolp testified Newton

had never paid a sales contractor a commission after terminating the

independent contractor relationship.   The record supports the district court’s

findings:

       In various documents directed to sales personnel, and to
       encourage marketing of Merge 9i, Newton would describe
       commissions earned on Merge 9i sales as an “annuity.” This was
       an obvious reference to the fact that commissions on the sale of
       Merge 9i would be recurring, unlike commissions earned on other
       sales of promotional materials.

       Under the Paragon-Newton termination and mutual release contract, any

commissions generated on the IFCO account after December 31, 2012,

belonged to Paragon/Quality, who now serviced IFCO’s use of Merge 9i,

including invoicing and receiving payment from IFCO for “points awarded.”

       F. Litigation. In February 2013 Newton sent Clemmons a draft of a

promissory note for the unpaid incentive amounts advanced to Clemmons in

2008. Clemmons did not respond. On May 19, 2013, Newton sued Clemmons

to recover $54,194.88.    Clemmons answered and asserted the affirmative

defense of Newton’s prior material breach of the June 2012 contract—failing to

pay Clemmons his post-termination IFCO commissions.          He also asserted

counterclaims against Newton based on its alleged breaches of the June 2012

sales contract: (1) Newton’s failure to pay Clemmons his IFCO commissions, and
                                            12



(2) Newton assigning the obligations in the sales agreement to Paragon without

Clemmons’s consent.

         After a bench trial, the district court ruled Newton proved Clemmons owed

$54,194.88 for the unpaid incentive balance “subject to the claim for additional

commissions.”       The court also ruled Clemmons was entitled to $14,673.29,

Clemmons’s one-half of the IFCO November/December 2012 commissions

Newton paid Burt “based upon two separate grounds.” First, because (1) Burt

voluntarily contracted to pay one-half to Clemmons in return for assistance with

the IFCO contract and (2) Stolp testified he considered Newton bound by the

Clemmons-Burt agreement, Newton “thus ratified that contract and was bound to

continue the practice of paying each party one-half of those commissions.” As to

the second ground:

         [T]he comment authored by Stolp in the draft . . . stated Merge 9i
         commissions would be paid “through the life of the client contract
         not the Sales Agreement.” Significantly, paragraph 3(a) of that
         draft was not changed in the final draft. The contract was drafted
         by [Newton] and interpreted in this manner by its agent [Stolp]. The
         language from the draft survived into the final contract. Stolp
         testified this comment assumed the [contractor] would remain
         associated with [Newton], but the comment did not say this and a
         reasonable person, even with knowledge of [Newton’s] past
         practice, would not have inferred that this was an additional
         condition. Though [Newton] had never paid a [contractor] a
         commission after termination, the Merge 9i agreements were
         unique . . . . [Stolp’s specific interpretation] in his comment to
         paragraph 3 trumps the evidence of past business practice.3




3
    The district court’s footnote stated:
         I realize [this interpretation] could have resulted in Clemmons receiving
         IFCO commissions long after his disassociation from [Newton] had
         [Newton] not terminated its Merge 9i business. But that would have been
         Burt’s problem, not [Newton’s].
                                            13



       The court denied Clemmons’s counterclaim which asserted he was

entitled to IFCO commissions in the range of $66,000 to $80,000 after December

31, 2012.4 The court found the term “client contract” in Stolp’s margin comment

referred to Newton’s “direct contract with IFCO, and that contract . . . terminated

effective December 31, 2012.”5 Clemmons does not appeal this ruling.6 The

court also rejected Clemmons’s “assignment” counterclaim. Clemmons does not

appeal the district court’s denial of his other counterclaims asserting Newton’s

breach of a covenant of good faith and fair dealing, unjust enrichment, and

fraud/fraudulent inducement. The court found: “As used in the context of this

case, [Newton] used the term ‘annuity’ to refer to the fact that commissions would

be recurring. It did not use this term with the intent to deceive.”




4
  At trial, Clemmons testified:
                Q. You cannot cite to me any document, any contract, or any
         other obligation that Newton entered into with Paragon by which [Newton
         was] obligated to pay you a commission for business they no longer had
         on IFCO, that is true, isn’t it, sir? A. I see no language in this [sales]
         agreement that states that.
                Q. And in fact there is no language in any agreement that you are
         aware of that grants you that right to commissions, correct? A. There is
         no document that I can see.
5
    The court recognized Newton, who thereafter did not invoice IFCO for “points
awarded,” was not obligated to pay Clemmons a commission on revenue generated
under the Paragon/Quality-IFCO contracts, ruling: “The only logical conclusion . . . is that
if there was no invoicing, there would be no commission.”
6
  We note Clemmons’s motion for new trial claimed only that Newton’s failure to pay two
months of commission was a material breach and did not claim entitlement to post-
December 31, 2012 commissions as a factor to be considered in the material-breach
analysis. On appeal, Clemmons raises post-December 31, 2012 commissions as a
factor in the material-breach analysis for the first time in his reply brief, stating
“Clemmons contends Newton owed commissions for a minimum of fifteen months, ten of
which were to be post-termination commissions.” An issue raised for the first time in a
reply brief is not properly presented to this court. Harrington v. Univ. of N. Iowa, 726
N.W.2d 363, 366 n.2 (Iowa 2007).
                                         14



       The court entered judgment in favor of Newton for $39,521.59. Clemmons

filed a motion for new trial raising two grounds. First, he claimed the “court erred

as a matter of law when it determined that Newton substantially performed under

the sales agreement and that its breach of the sales agreement was not

material.” Second, he claimed the court’s “finding Newton did not assign the

obligations in the sales agreement to Paragon” constitutes error because the

finding is contrary to Stolp’s testimony. The district court denied the motion.

Clemmons now appeals.

II. Standard of Review

       Our standard of review of the district court’s ruling on a motion for new trial

depends on the grounds raised in the motion. Pavone v. Kirke, 801 N.W.2d 477,

496 (Iowa 2011). If the motion is based on a legal question, we review for the

correction of errors at law. Id. Because the question whether Newton’s breach

of the 2012 sales contract constituted a prior “material” breach is a legal question

and because the district’s court’s interpretation of the 2012 sales contract’s

“assignment” paragraph is also a legal question, we review for corrections of

errors at law. See id. The district court’s findings of fact are binding on us if

supported by substantial evidence. Iowa R. App. P. 6.904(3)(a).

III. Clemmons’s Affirmative Defense—Prior Material Breach by Newton

       The district court rejected Clemmons’s affirmative defense, ruling:

       A breach is material if it results in performance that “is not
       substantial.” Flynn Builders, L.C. v. Lande, 814 N.W.2d 542, 546
       (Iowa 2012).     Even given that [Newton] should have paid
       Clemmons his share of Burt’s commissions for November and
       December 2012, this failure was not substantial in the context of
       the entire agreement.
                                       15




      A.   Newton’s Performance by Percent of Completion.             On appeal,

Clemmons contends the district court erred as a matter of law in determining

Newton substantially performed the 2012 sales agreement and Newton’s breach

was not material. Noting the court determined Clemmons was entitled to IFCO

commissions for seven months through December 31, 2012, and Newton paid

only five months, Clemmons contends Newton materially breached the sales

agreement by failing to pay 28.5% of the contract term (two of seven months)

and failing to pay over 30% of the term’s value ($14,673.29 (two months) of

$47,855.09 (seven months)).     Clemmons contends because Newton did not

substantially perform under the contract as to both contract term and value, he is

thereby excused from repaying the incentive balance. See Flynn, 814 N.W.2d at

546 (finding the construction contractor’s omissions “materially affected the

habitability of the house”; only 80 to 85% of the construction contract was

completed).

      In response, Newton contends Clemmons’s argument is premised on too

tight of a time frame. Newton points out the Clemmons-Burt commission-split

contract was executed in June 2009 and Newton, aware of the contract,

consistently paid Clemmons his share of Burt’s commissions. Newton states the

undisputed facts show it started paying IFCO commissions to Clemmons and

Burt in December 2009, paying Clemmons through October 2012 while paying

Burt through December 2012. Newton asserts it substantially performed—in the

three-year time frame it did not pay Clemmons for only two months, and during
                                        16



the three-year period, it paid Clemmons over $178,000 while only failing to pay

$14,673.29.

       The percentage arguments advanced by both parties are a more natural fit

in the context of construction contracts than in service contracts.       But after

analyzing both positions we conclude Newton’s time frame is more in line with

the district court’s unchallenged first ground above—holding Newton owed

Clemmons two months of commissions because Newton ratified the Clemmons-

Burt contract. This holding shapes our understanding that Newton’s obligation to

pay two months of commission was derived from the Clemmons-Burt contract, a

split that Clemmons and Burt agreed to overlay on the IFCO-Newton contract

and a split that Newton ratified and substantially performed by paying Clemmons

IFCO commissions from December 2009 through October 2012. See id. (citing

with approval a contract treatise that states a “‘breach of a contract is not

material if substantial performance has been rendered’”) (citation omitted).

       Newton’s position is also more in line with the district court’s unchallenged

second ground above—holding the Merge 9i contracts were unique and Newton

agreed to pay Clemmons the Merge 9i commissions “through the life of the client

contract [IFCO-Newton] not the Sales Agreement.” Here, the life of the client

contract is from December 2009 through December 2012, and Newton paid

Clemmons his commissions for all but two months of the “life of the client

contract.”

       B. Restatement (Second) of Contracts section 241. Turning to the

Restatement provisions cited by both parties, we find further support for our
                                          17



conclusion the district court did not err in holding Newton’s failure to pay two

months of IFCO commissions was not a prior material breach.              Section 241

identifies five significant circumstances for courts to consider “in determining

whether a particular failure is material.”     Restatement (Second) of Contracts

§ 241 cmt. a (1981). These include: (1) the extent to which Clemmons “will be

deprived of the benefit he reasonably expected”; (2) the extent to which

Clemmons “can be adequately compensated for the part of that benefit of which

he will be deprived”; (3) the extent to which Newton “will suffer forfeiture”; (4) the

likelihood Newton will cure its failure, taking account of all circumstances

including any reasonable assurances; and (5) the extent to which Newton’s

behavior “comports with standards of good faith and fair dealing.” See id.

       As to the benefit he reasonably expected, Clemmons claims: “Specifically,

the benefit Clemmons reasonably expected was to be compensated for his

efforts to sell certain products, including the Merge 9i product, for the life of those

contracts.” We agree and note the Newton-IFCO contract ended on December

31, 2012. Regarding the extent to which Clemmons can be compensated for the

benefit of which he was deprived—two months of commissions—section 241

comment c states: “If the failure is a breach, [Clemmons] always has a claim for

damages, and the question becomes one of the adequacy of that claim to

compensate him for the lost benefit.” Id. § 241 cmt. c. Here, the monetary

damages the district court awarded adequately compensate Clemmons for the

lost benefit. Third, in analyzing the extent to which Newton will suffer forfeiture,

we consider whether Newton “has relied substantially on the expectation of the
                                         18



exchange, as through preparation or performance.”             Id. § 241 cmt. d.

Specifically,

       a failure is less likely to be regarded as material if it occurs late,
       after substantial preparation or performance, and more likely to be
       regarded as material if it occurs early, before such reliance. For the
       same reason the failure is more likely to be regarded as material if
       such preparation or performance as has taken place can be
       returned to and salvaged by the party failing to perform or tender
       and less likely to be regarded as material if it cannot.

Id. Newton’s substantial preparation or performance already occurred because it

provided the incentive payments in 2004 and 2008, well in advance of the June

2012 sales contract.      In fact, the 2012 sales contract only contemplated

Clemmons’s repayment through an offset of a percentage of IFCO Merge 9i

commissions because Clemmons did not meet his sales goals under the prior

two contracts, leaving an unpaid debt.

       Fourth, as to the likelihood Newton will cure the failure, the Restatement

provides: “A material failure by [Newton] gives [Clemmons] the right to withhold

further performance as a means of securing [Clemmons’s] expectation of an

exchange of performances.      To the extent, that [Clemmons’s] expectation is

reasonably secure, in spite of [Newton’s] failure, there is less reason to conclude

[Newton’s] failure is material.” See id. § 241 cmt. e. In the circumstances of this

case, Clemmons’s expectation is undisputedly “reasonably secure” because the

district court offset the commission owed to Clemmons against the unpaid

incentive balance owed to Newton. Based on the court’s order, there is less

reason to conclude Newton’s failure is material.
                                        19



       Fifth and finally, the Restatement states: “the extent to which the behavior

of the party failing to perform [Newton] comports with standards of good faith and

fair dealing is, however, a significant circumstance in determining whether

[Newton’s] failure is material.” See id. § 241 cmt. f. At trial, Clemmons admitted

the 2012 sales contract did not “address whether commissions will be paid after

the termination of the agreement.” In addition, the record supports the district

court’s conclusions: (1) Newton discontinued the Merge 9i program in order to

eliminate substantial losses and this decision “was not motivated by an intent to

defraud sales persons generally, or Clemmons specifically, of commissions”; and

(2) Newton did not, at any time, engage “in an act of bad faith with respect to the

contract” and “at all times acted within its rights as defined in the contract.”

Lastly, Clemmons has not appealed the district court’s rejection of his

counterclaims for breach of covenant of good faith and fair dealing and

fraud/fraudulent inducement.

       Accordingly, every one of the five “significant circumstances” in the

Restatement supports our conclusion that the district court did not err in ruling

Newton’s breach was not material.

       C.    Total Repudiation.     Buried in the material-breach argument in

Clemmons’s brief is his conclusory claim the district court “erred in awarding

Newton damages for Clemmons’s subsequent refusal to pay the Incentive

Balance. Where a party terminates a contract, a party totally repudiates the

contract.”
                                        20



       We find no merit to this challenge because Clemmons overlooks (1) the

contractual sources forming the basis for his obligation to repay Newton, i.e., the

2008 contract under which Newton made the incentive payment and the 2010

addendum, and (2) the interplay between the 2008/2010 preexisting debt

obligation and the subsequent 2012 contract. The district court recognized the

2012 sales agreement did not affect the 2008 contract/2010 addendum’s

preexisting debt obligation when it specifically found: “Under the [2012 sales

agreement] as signed, “the 2008 agreement was terminated, but the termination

was deemed ‘prospective in effect’ and did not ‘impact any rights and/or

obligations that accrued while the Agreement and Addendum were in existence.’”

Accordingly, Clemmons’s claim that Newton’s action of terminating the 2012 “at

will” sales contract excused him from his preexisting and unmodified 2008/2010

obligation to repay the incentive balance is contrary to the express intent of the

parties.

IV. Alleged Assignment of Clemmons’s Sales Representative Contract

       Paragraph 8(g) of the Newton-Clemmons sales contract stated: “No Party

shall assign or delegate its rights or obligations under this Agreement voluntarily

or involuntarily, whether by merger, consolidation, dissolution, operation of law,

or other manner, without the prior written consent of all other Parties.”

Clemmons contends paragraph 8(g) means Newton did not have the right to

assign its obligation to pay Clemmons his IFCO commissions without

Clemmons’s prior written consent.     Clemmons also claims the court erred in
                                         21



finding Newton “did not assign any of its contracts with its sales representatives

to Paragon.” In support, Clemmons cites Stolp’s trial testimony:

             Q. . . . [T]he obligation to pay commissions in connection
      with the contracts like IFCO contract was assigned along with the
      contract, right? A. Yes.
             ....
             Q. Let’s take a look at the sales agreement . . . . You just
      told me that the obligation to pay commissions in connection with
      the IFCO contract was assigned to a third party, right? A. Yes.
      Because they were receiving the revenue.

      The district court denied relief on this issue, holding:

             [Newton] did not assign the Clemmons 2012 contract to
      IFCO. That contract had been terminated. Newton did not assign
      any of its contracts with sales representatives to Paragon. In fact,
      Quality Incentive entered into separate contracts with certain sales
      representatives.
             Clemmons had no right to receive commissions from
      [Newton] on the [Newton-IFCO] contract once that contract had
      been assigned to Paragon and [Newton] was no longer generating
      revenue for services performed in connection with that contract.
      Clemmons had no contractual rights which were assigned to
      Paragon.

      Newton asserts it did not assign the Newton-Clemmons sales contract to

Paragon as shown by section 3 of the Newton-Paragon termination agreement,

stating Newton assigns and Paragon accepts “Newton’s right, title, interest, and

obligation in and to the various Merge 9i Employee Recognition Program

Agreements.” Clemmons’s testimony supports Newton’s position:

               Q. If you look at . . . the 2012 sales agreement, you would
      agree with me there is no language in that particular agreement
      that indicates you had the right to receive notice that Newton was
      assigning the [Newton-]IFCO Merge 9i agreement; that is correct,
      isn’t it? A. I see no language of that.
               Q. . . . [I]t’s your contention [Newton] is obligated to pay you
      commissions based upon invoices generated by . . . Paragon or
      Quality Incentive, from which Newton shares none of the revenue
      going forward. That’s your contention . . . for IFCO? A. My
                                          22



       contention is that the exit of Newton’s business and the Merge 9i
       business they could have easily negotiated with Pete Krstovic and
       Paragon that they would continue paying me what I had earned and
       what I brought in. It would have been a simple, simple solution to
       all this wasted money and litigation. Now why was that not done?

       Even assuming an inconsistency exists between Stolp’s testimony on one

hand and Clemmons’s testimony and the specific language of the Paragon-

Newton contract on the other hand, we conclude the district court did not err in

resolving this issue.

       Costs of this appeal are taxed to Clemmons.

       AFFIRMED.

       McDonald, J., concurs specially.
                                       23



MCDONALD, J. (concurring specially)

      The parties raised the issue of material breach and substantial

performance in the district court. Clemmons argued Newton breached the 2012

agreement, the breach was material, and the material breach excused

Clemmons from further performance. Newton argued the breach was immaterial

because it had substantially performed the 2012 agreement. The district court

concluded Newton’s failure to pay two months’ commission “was not substantial

in the context of the entire agreement.” On appeal, the parties continue to frame

the question as whether Newton substantially performed the 2012 agreement,

relying on the Restatement (Second) of Contracts section 241. This appears to

me to be the wrong question. The doctrine of substantial performance is almost

always inapplicable where the performance at issue is merely the payment of

money. The uncured failure to pay money owed is almost always a material

breach.   Nonetheless, I respectfully concur in the result that Clemmons is

obligated to repay the incentive payment subject to offset for his counterclaim on

the ground that the issue of substantial performance/material breach is simply

inapplicable here where the parties expressly made their promises independent

rather than dependent.

      “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). A

breach by one party gives rise to a claim for damages, but a material breach by

one party gives rise to a claim for damages and may excuse performance by the
                                         24



non-breaching party. See In re Interstate Bakeries Corp., 751 F.3d 955, 962-63

(8th Cir. 2014) (“Substantial performance is the antithesis of material breach; if it

is determined that a breach is material, or goes to the root or essence of the

contract, it follows that substantial performance has not been rendered, and

further performance by the other party is excused.” (quoting 15 Richard A. Lord

Williston on Contracts § 44:55, at 271-72 (4th ed. 2014) [hereinafter “Williston”]));

Williams v. AgriBank, FCB, 972 F.2d 962, 966 (8th Cir. 1992) (“It is not every

dissatisfaction with a contract performance, nor even every breach—but only a

material breach—that excuses performance by the other party.”); Ryko Mfg. Co.

v. Eden Servs., 823 F.2d 1215, 1239 (8th Cir. 1987) (recognizing that under Iowa

law a material breach excuses performance by the non-breaching party).

“Substantial performance is that which, despite deviations from the contract

requirements, provides the important and essential benefits of the contract to the

promisee.” SDG Macerich Props., L.P. v. Stanek, Inc., 648 N.W.2d 581, 586

(Iowa 2002). Substantial performance allows omissions or deviations from the

contract that are inadvertent or unintentional, that are not the result of bad faith,

and that do not impair the structure as a whole.           See Moore’s Builder &

Contractor, Inc. v. Hoffman, 409 N.W.2d 191, 193 (Iowa Ct. App. 1987).

       I conclude the doctrine of substantial performance is almost always

inapplicable where the performance at issue is merely the payment of money.

The issue of substantial performance typically arises in the context of

construction, personal service, and similar agreements where, due to the nature

of the work performed, uncertainty exists as to whether a party performed or
                                         25



substantially performed the contracted-for service. See Domanik Sales Co., Inc.

v. Paulaner-N. Am. Corp., 2000 WL 1855144, at *2 (Wis. Ct. App. 2001) (“The

precedents explaining the application of the doctrine involve personal service or

construction contracts and the aim to cure minor imperfections that are inevitable

in such situations.”). In this case, the performance at issue is the payment of

money.        “This is not a situation involving personal service or construction

inherently subject to imprecise performance.” Id. Either payment was made

according to the 2012 agreement or it was not. It was not. That is a breach.

See Licocci v. Cardinal Assocs., Inc., 492 N.E.2d 48, 52 (Ind. Ct. App. 1986) (“A

party who fails to make payments as required by a contract is guilty of a breach

thereof.”).

       We should not place judicial imprimatur on the notion that a party to a

contract can establish substantial performance and the entitlement to return

performance merely by showing the payment of some undetermined percentage

less than the contracted-for obligation. This notion has been rejected by other

jurisdictions. See, e.g., Walden v. Schaefer, No. D036907, 2002 WL 467959, at

*2 (Cal. Ct. App. Mar. 28, 2002) (“The ‘substantial performance’ doctrine applies

chiefly in the construction industry . . . . Schaefer cites no authority suggesting

the doctrine applies to an installment payment agreement.”); Fidelity Bank v.

Krenisky, 807 A.2d 968, 979 (Conn. Ct. App. 2002) (rejecting application of

substantial performance doctrine and stating “to allow mortgagors to make partial

payments on their mortgages, and then avoid foreclosure by way of a claim of

substantial performance, would result in the unsettling of the real estate market
                                        26



and an increase in litigation”); In re Standard Jury Instructions—Contract & Bus.

Cases, 116 So.3d 284, 307 (Fla. 2013) (“There is almost always no such thing as

‘substantial performance’ of payment between commercial parties when the duty

is simply the general one to pay.”); Rose v. Ditto, 804 So.2d 351, 353 (Fla. Dist.

Ct. App. 2001) (“There is almost always no such thing as “substantial

performance” of payment . . . when the duty is simply the general one to pay.

Payment is either made in the amount and on the due date, or it is not.”);

Enriquillo Exp. & Imp., Inc. v. M.B.R. Indus., Inc., 733 So.2d 1124, 1127 (Fla.

Dist. Ct. App. 1999) (same); Ujdur v. Thompson, 878 P.2d 180, 183 (Idaho Ct.

App. 1994) (rejecting argument that payment of ninety percent of amount owed

was substantial performance); Gibson v. Neu, 867 N.E.2d 188, 196 (Ind. Ct. App.

2007) (rejecting application of substantial performance doctrine where mortgagee

owed only $500 on note); Hill v. Goodwin, 722 S.W.2d 668, 671-72 (Tenn. Ct.

App. 1986) (“[W]e are not convinced that substantial performance of a contract

for the sale of real estate will entitle the vendee to specific performance of that

agreement.”).

      I conclude the questions of substantial performance/material breach are

not presented here for an additional reason. The issue of material breach arises

only when the parties’ promises are dependent.          When the promises are

independent, the doctrine of substantial performance/material breach is generally

inapplicable. See generally Lloyd v. Pendleton Land & Exploration, Inc., 22 F.3d

623, 625 (5th Cir. 1994) (stating “the critical issue is whether the obligation

avoided was dependent upon or correlative to the obligation allegedly
                                         27



breached”); Eric G. Andersen, A New Look at Material Breach in the Law of

Contracts, 21 U.C. Davis L. Rev. 1073, 1077 (1988) (explaining the doctrine of

material breach arises to mitigate the harshness of discharging the obligation of

future performance where there are constructive conditions of exchange). As

one court explained:

       Promises and counter-promises made by the respective parties to a
       contract have certain relations to one another, which determine
       many of the rights and liabilities of the parties. Broadly speaking,
       they are (1) independent of each other, or (2) mutually dependent,
       one upon the other. They are independent of each other if the
       parties intend that performance by each of them is in no way
       conditioned upon performance by the other. In other words, the
       parties exchange promises for promises, not the performance of
       promises for the performance of promises. A failure to perform an
       independent promise does not excuse non-performance on the part
       of the adversary party, but each is required to perform his promise,
       and, if one does not perform, he is liable to the adversary party for
       such non-performance. (Of course, if litigation ensues questions of
       set-off or recoupment frequently arise.) Promises are mutually
       dependent if the parties intend performance by one to be
       conditioned upon performance by the other, and, if they be mutually
       dependent, they may be (a) precedent, i.e., a promise that is to be
       performed before a corresponding promise on the part of the
       adversary party is to be performed, (b) subsequent, i.e., a
       corresponding promise that is not to be performed until the other
       party to the contract has performed a precedent covenant, or (c)
       concurrent, i.e., promises that are to be performed at the same time
       by each of the parties, who are respectively bound to perform each.

K & G Constr. Co. v. Harris, 164 A.2d 451, 454-55 (Md. 1960) (citations omitted).

       Whether promises are dependent or independent is determined by the

intent of the parties. See id. at 455 (stating “the intention of the parties, as shown

by the entire contract as construed in the light of the circumstances of the case,

the nature of the contract, the relation of the parties thereto, and the other

evidence which is admissible to assist the court in determining the intention of
                                       28



the parties, is the controlling factor in deciding whether the promises and

counter-promises are dependent or independent”). Here, the parties’ course of

dealing and the plain language of the 2012 agreement establish the promises

were independent of each other. The incentive payment obligation arose from

prior agreements of the parties; it was not an obligation created by the 2012

agreement. Paragraph (J) in the Recitals to the 2012 Agreement acknowledges

the preexisting obligation to repay the debt.      Other language in the 2012

agreement establishes the independent nature of the promises. Paragraph 2 of

the 2012 agreement explicitly provides that “any rights and/or obligations that

accrued” while the prior agreements were in effect were not impacted by the

2012 agreement. Paragraph 3(a) provides, “In the event that all monies owed

are not paid-in-full through the application of commissions, Newton retains all

rights with regard to said sums.”

       The approach advanced in this special concurrence has been adopted in

Iowa. The controlling case is West v. Jayne, 484 N.W.2d 186 (1992), which

involved a dispute between an attorney and his associate. In that case, the

attorney agreed to pay the associate a weekly salary. See West, 484 N.W.2d at

188.    The attorney and associate also agreed to a certain fee-sharing

arrangement dependent on who obtained the work and who performed the work.

See id. After several years in this arrangement, the attorney ceased paying the

associate the weekly salary. See id. The associate left the firm, took numerous

clients and client files (with client consent), and earned substantial fees on the

retained cases. See id. The attorney sued the associate for his contracted-for
                                        29



share of the fees earned on the cases. See id. As in this case, the associate

defended on the ground that the attorney’s failure to pay the weekly salary was a

material breach excusing any return performance. See id. at 189. The court

rejected the argument, explaining the duties were independent of each other:

“The fact that a certain performance is required on the part of one of the

contracting parties does not necessarily render it a condition precedent to the

enforcement of any performance on the part of the other party to the agreement.”

Id. The court further stated, “to predicate the discharge of one of the contracting

parties upon breach of condition by the other, the party claiming discharge must

show the conditions breached constituted the entire agreed exchange by the

other party, or was expressly recognized in the bargain as a condition for the

other’s performance.” Id. The court concluded the provision breached did not go

to the whole of the contract and was not a condition for the other’s performance;

therefore the breach did not discharge the associate’s obligation. See id. In

other words, the breach was of an independent promise not material to the non-

breaching party’s obligation to perform. See Williston § 44:6, at 100 (“It has been

said that a dependent promise goes to the entire consideration of a contract and

that the parties would not have entered into the contract without it.”); K & G

Constr. Co., 164 A.2d at 455 (stating “there are three classes of independent

promises left: (1) those in which the acts to be performed by the respective

parties are, by the terms of the contract, to be performed at fixed times or on the

happening of certain events which do not bear any relation to one another; (2)

those in which the covenant in question is independent because it does not form
                                        30



the entire consideration for the covenants on the part of the adversary party, and

ordinarily forms but a minor part of such consideration; and (3) those in which the

contract shows that the parties intended performance of their respective

promises without regard to performance on the part of the adversary, thus relying

upon the promises and not the performances”).

      Accordingly, for the foregoing reasons, I concur in the result.
