                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1711
                            Filed December 21, 2016


CONNIE KUNZ,
    Plaintiff-Appellee,

vs.

ROBERT KUNZ,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Lee County (South), Mary Ann

Brown, Judge.



      Robert Kunz appeals from a jury verdict in favor of Connie Kunz in her

breach-of-contract action. REVERSED AND REMANDED.




      James F. Dennis, Keokuk, for appellant.

      Curtis R. Dial of the Law Office of Curtis Dial, Keokuk, for appellee.



      Heard by Danilson, C.J., and Doyle and McDonald, JJ.
                                         2


MCDONALD, Judge.

       Robert Kunz appeals from a jury verdict in favor of Connie Kunz in this

breach-of-contract action. He contends the settlement memorandum signed by

Connie and him were only preliminary negotiations and not a binding agreement.

Even if it was a binding agreement, his obtaining financing was a condition

precedent that did not occur.     He challenges the court’s refusal to give his

proposed jury instructions regarding the condition precedent. He also challenges

the district court’s decision to allow evidence regarding his personal finances.

                                         I.

       Richard Kunz and Robert Kunz, brothers, started a business in 1973

called Happy Homes, Inc., which sold factory-built homes. This was a “family

business,” and Richard’s wife, Connie, and Robert’s wife, Dorothy, were actively

involved. Richard and Robert jointly owned the business and 9.7 acres of real

estate upon which Happy Homes was located. In 2007, Richard died, and his

interest in Happy Homes went to Connie. In 2008, Connie and Robert began

discussing the sale of the business.          Initially, Connie was interested in

purchasing Robert’s share of the business and continuing to operate Happy

Homes with her son, Denton. Connie and Robert eventually entered mediation,

and, on April 23, 2010, Connie, Robert, Dorothy, and their respective attorneys

all signed a document entitled “Settlement Memorandum.”

       The Settlement Memorandum stated,

             1. Robert will purchase Connie’s shares of stock in Happy
       Homes, Inc. for the sum of $250,000.00 including the real estate
       owned jointly by Connie and Robert and Dorothy. Curtis Dial and
       Hubert Staff [attorneys] will prepare all detailed agreements
       necessary for the purchase of the corporate stock and the real
                                         3


      estate. The escrow fund is to be intact as to be verified by the
      accountant. This agreement is subject to Robert Kunz being able
      to arrange financing for this purchase.
              2. All of Connie’s shareholder debt will be canceled.
              3. Robert will seek to obtain a release by the bank on
      individual guarantees of corporate indebtedness by Connie.[1]
              4. Robert agrees to indemnify Connie against corporate debt
      per the agreement prepared by the attorneys.
              5. The real estate will be conveyed using normal real estate
      purchase and sale closing procedures. It is anticipated or expected
      that this matter will be closed within forty-five (45) days of this date.
              6. Included in this agreement is the agreement of Robert to
      take over ownership of the individual homes owned by Connie and
      assume the debt on those homes.
              7. Connie will receive the 1997 Chevrolet C-10 truck formerly
      used by Richard.
              8. The parties agree to take all action and execute all
      documents necessary to effectuate this agreement.

      On June 2, 2010, Robert’s attorney notified Connie’s attorney Robert and

Dorothy “have been unsuccessful in obtaining a loan” and would not proceed

with the purchase.

      On June 28, 2010, Connie filed a breach-of-contract suit against Robert

and Dorothy, which she subsequently dismissed without prejudice. On February

17, 2011, Robert and Dorothy filed suit against Connie for partition and

liquidation of Happy Homes. The modular homes, real estate, and other assets

of Happy Homes were sold at auction on May 5, 2012. Robert purchased the

1997 Chevrolet C-10 truck for $4000. The original purchaser of the real estate

bid $160,000 but backed out, forfeiting a $16,000 down payment. Robert then

purchased the real estate from Happy Homes. The proceeds from the sales of

Happy Homes assets ($251,066.47) were placed in a trust account, outstanding

loans to State Central Bank were paid off, as were attorney fees and other items,

1
 Connie had personally financed some of the model homes for Happy Homes with State
Central Bank.
                                         4


and, on October 25, 2012, $88,225.88 was distributed each to Connie and

Robert.

      Connie thereafter reinitiated her suit against Robert and Dorothy for

breach of the settlement memorandum, seeking the difference between what she

received from liquidation of the company and the purchase price set forth in the

settlement memorandum. Dorothy was later dismissed as a party.

      On July 7, 2015, Robert filed a motion in limine asking that the court

exclude his personal financial statement as irrelevant.     The court denied the

motion noting,

      One of the issues in this case will be whether [Robert] complied
      with the terms of a contract that he “arrange financing” to make a
      payment to [Connie]. Counsel agreed that one of [Robert’s]
      defenses to not completing the terms of the contract was that he
      was not able to arrange financing. As a result the Court can
      envision how his financial condition would be relevant to a trier of
      fact to evaluate on whether he had been able to “arrange financing”
      to complete payment of the contract obligations.

      At trial, Connie testified Robert agreed at mediation to buy her interest in

the real estate and business for $250,000 and that he would obtain a release of

her individual guarantees of corporate indebtedness.          She considered the

Settlement Memorandum a contract. She acknowledged she had received three

checks2 from the liquidation of Happy Homes’ assets and that she had been

released from liability on Happy Homes’ indebtedness. Connie asked that she




2
  The first was in November 2012 in the amount of $88,225.88; the second on
September 9, 2013, in the amount of $52,417.40, which was Connie’s half of the
proceeds after Robert purchased the Happy Homes real estate; and the final check on
March 13, 2014, in the amount of $15,128.50 after all Happy Homes’ business dealings
were finalized.
                                           5


be awarded the difference between the $250,000 promised and what she had

already received.3

       In January 2010, Robert’s financial statement with his bank, State Central

Bank, indicated his net worth was over $2,720,000.          Robert agreed he had

signed the settlement memorandum and “agreed to purchase Connie’s interest in

the business and the real estate for $250,000, and she would also get the truck

she wanted.” Robert testified he went to his bank and sought financing to pay

Connie, offering the assets of Happy Homes as collateral. He did not offer his

personal family assets as collateral because “personal family assets and this

does not get mixed in with a business.” He also stated he went to a distant

relative, who was a banker in Illinois, and asked for a loan and was denied. He

did not fill out a loan application at either bank.

       Robert also testified as follows:

              Q. Did you ever attempt to use your personal finances to
       obtain a loan? A. No, I did not.
              Q. And would you agree that had you used your personal
       finances, you could have obtained financing? A. I wouldn’t say
       that.
              Q. Well, you could have paid for it yourself, couldn’t you? A.
       No, I couldn’t have.
              Q. Did you purchase the real estate that Happy Homes had
       been on at the auction? A. Yes, I did.
              Q. Did you get a loan for that? A. No, I just took it out of the
       proceeds.
              Q. What do you mean, the proceeds? A. The sale of the
       buildings.
              Q. The auction? A. The houses, tools and everything, my
       half.


3
  Connie contended she was owed about $96,000. Robert contended she had been
paid $16,000 more than she acknowledged. The jury found Connie was owed just over
$80,000, apparently giving credence to the additional payment. Connie does not appeal
the amount of the judgment.
                                         6


              Q. So when that real estate was purchased by you, you did
       not need any kind of loan for that at all? A. I think I might have had
       a loan on it.
              Q. Who did you get the loan from? A. Family.
              Q. What family? A. I don't think that’s necessary.
              Q. Well, you paid a hundred thousand dollars for real estate,
       right? A. Yes.
              Q. Over a hundred thousand, didn’t you? A. A little over.
              Q. And you got a loan from a family member? A. (No
       audible response.)
              Q. Yes? A. Yes.
              Q. But you couldn’t go to that family member and get a loan
       to purchase Happy Homes from Connie? A. No.
              Q. All right. So after you made the two attempts, meeting
       with Scott Piper and then meeting with your distant relative in Lima
       [Steve Harms], you made—that’s all the attempts you made to
       finance the business? A. That’s correct.

Robert acknowledged he did not go to other banks in the area seeking financing.

Nor did he use “the $168,000 cash on hand” to get a loan.

       Scott Piper at State Central Bank testified he denied Robert’s request for a

loan of $250,000 because Robert wanted the loan secured by Happy Homes’

real estate and “the mobile homes that were left,” and Piper was “concerned” the

depreciated inventory would not be sufficient collateral. Piper also testified he

would have been aware of Robert’s financial statement and financial assets, and

Robert could have offered to use his personal finances to secure a loan but did

not. Piper testified:

              Q. And you were aware they had pretty substantial financial
       assets? A. I knew they had a farm, uh-huh.
              Q. Well, did you have the net worth statement that indicated
       their net worth was $2,720,348? A. Probably did. I—that was a
       long time ago.
              ....
              Q. Those are pretty sound financial investments, right? A.
       Well, those are—that’s a nice net worth—
              Q. Sure. A. —yeah.
                                           7


              Q. Especially if you secure it somehow with let’s say real
       estate or property that you can take, if it doesn’t get paid? A. Right,
       absolutely.

       The court granted Robert’s request that the jury be instructed on his

claims of lack of consideration, waiver, and impossibility of performance.

However, the court rejected his requested two instructions concerning conditions

precedent. The jury returned special interrogatories finding there was a contract,

Robert had breached the contract, and Connie should be awarded $80,267.49.

Robert’s motion for judgment notwithstanding the verdict was denied, as was his

motion for new trial. Robert timely filed this appeal.

                                          II.

       We review actions tried at law for errors of law. Iowa R. App. P. 6.907.

Findings of fact in a law action are binding on us if supported by substantial

evidence. Iowa R. App. 6.904(3)(a). “When reasonable minds would accept the

evidence as adequate to reach the same findings, evidence is substantial.”

Easton v. Howard, 751 N.W.2d 1, 5 (Iowa 2008). We review refusals to give jury

instructions for correction of errors at law. Alcala v. Marriott Int’l Inc., 880 N.W.2d

669, 707 (Iowa 2016).        Evidentiary rulings are reviewed for an abuse of

discretion. Giza v. BNSF Ry. Co., 843 N.W.2d 713, 718 (Iowa 2014). “A court

abuses its discretion when its ruling is based on grounds that are unreasonable

or untenable.” Id. (citation omitted).

                                          III.

                                          A.

       Robert argues “the Settlement Memorandum was not a binding contract—

only an agreement to agree.” He maintains that because additional papers were
                                          8


required to finalize the sale of real property and corporate stock, there was a

“strong inference” the parties did not intend to be bound.

         “For a contract to be valid, the parties must express mutual assent to the

terms of the contract.” Schaer v. Webster Cty., 644 N.W.2d 327, 338 (Iowa

2002). “The contract terms must be sufficiently definite for the court to determine

the duty of each party and the conditions of performance.” Royal Indem. Co. v.

Factory Mut. Ins. Co., 786 N.W.2d 839, 846 (Iowa 2010).           “Mutual assent is

present when it is clear from the objective evidence that there has been a

meeting of the minds.” Id. In deciding whether there is an enforceable contract,

we consider not only the language used but also the surrounding circumstances

and the conduct of the parties. McCarter v. Uban, 166 N.W.2d 910, 913 (Iowa

1969).

         Viewing the evidence in the light most favorable to upholding the verdict

as we must, see Royal Indem. Co., 786 N.W.2d at 846, we conclude there is

substantial evidence in support of the verdict. The language of the settlement

memorandum repeatedly provides the parties reached an “agreement.”

Moreover, the actions taken after the parties signed the agreement provide

objective evidence of mutual assent. The parties agreed “to take all action and

execute all documents necessary to effectuate this agreement.” The parties’

attorneys began drafting the documents that would transfer Connie’s shares in

the company and achieve the real estate transfer. “[W]here parties have agreed

upon all essential facts there is a binding contract, notwithstanding the fact that a

more formal contract is to be prepared and signed later.” McCarter, 166 N.W.2d

at 914. Finally, Robert testified the parties had reached an agreement, but he
                                           9


could not obtain financing necessary to perform. There is substantial objective

evidence to support the jury’s finding of a binding contract.

                                          B.

       Robert contends the district court should have provided an instruction on

the issue of condition precedent.4 The district court must give a requested jury

instruction if the instruction (1) correctly states the law, (2) has application to the

case, and (3) is not stated elsewhere in the instructions. Beyer v. Todd, 601

N.W.2d 35, 38 (Iowa 1999); see Deboom v. Raining Rose, Inc., 772 N.W.2d 1, 5

(Iowa 2009) (“It is error for a court to refuse to give a requested instruction where

it ‘correctly states the law, has application to the case, and is not stated

elsewhere in the instructions.’” (citation omitted)). “Parties are entitled to have

their legal theories submitted to the jury if they are supported by the pleadings

and substantial evidence in the record.” Beyer, 601 N.W.2d at 38. “When we

weigh the sufficiency of the evidence to support a requested instruction, we

review the evidence in the light most favorable to the party seeking the

instruction.”   Weyerhaeuser v. Thermogas Co., 620 N.W.2d 819, 824 (Iowa

2000). “Error in giving or refusing to give a particular jury instruction does not




4
  Error was preserved on the issue. The district court held a conference regarding the
instructions and specifically and unequivocally refused Robert’s proposed instructions
regarding condition precedent. The matter was raised again via posttrial motion, and the
district court denied the motion. Under these circumstances, error was preserved. See
Ostrem v. State Farm Mut. Auto. Ins. Co., 666 N.W.2d 544, 547-48 (Iowa 2003)
(explaining the court takes a “pragmatic view” to rule 1.924 and holding error is
preserved where the instruction was requested or objection made, the point of law or
question of fact was explained, and the district court ruled upon the matter); State v.
Wright, 274 N.W.2d 307, 312 (Iowa 1979) (holding error was preserved where objection
was made and proposed instructions were deemed “final” for purposes of error
preservation).
                                        10

merit reversal unless it results in prejudice to the party.” Wells v. Enter. Rent-A-

Car Midwest, 690 N.W.2d 33, 36 (Iowa 2004).

      In Khabbaz v. Swartz, 319 N.W.2d 279, 283 (Iowa 1982), our supreme

court defined a condition precedent:

      “Conditions precedent are . . . those facts and events, occurring
      subsequently to the making of a valid contract, that must exist or
      occur before there is a right to immediate performance, before
      there is a breach of contract duty, before the usual judicial
      remedies are available.” Mosebach v. Blythe, 282 N.W.2d 755, 759
      (Iowa Ct. App. 1979); 3A Corbin on Contracts, § 628 at 16 (1960);
      see 5 S. Williston, A Treatise on the Law of Contracts, § 666A at
      141-44 (Jaeger ed. 1961). “A determination that a condition
      precedent exists depends not on the particular form of words used,
      but upon the intention of the parties gathered from the language of
      the entire instrument.” Mosebach, 282 N.W.2d at 759.

      Robert submitted two jury instructions on condition precedent, citing

Gildea v. Kapenis, 402 N.W.2d 457 (Iowa 1987):

             [Proposed No. 3] Conditions precedent are those facts and
      events occurring subsequent to the making of a valid contract that
      must exist or occur before there is a right to immediate
      performance and before there is a breach of contract duty and
      before judicial remedies are available.

              [Proposed No. 4] Where conditions precedent cannot be met
      to satisfy the terms of the contract, the contract is void.

      Under the circumstances, we conclude it was prejudicial error for the

district court to decline to give the instructions.     See M.K. Metals, Inc. v.

Container Recovery Corp., 645 F.2d 583, 587–89 (8th Cir. 1981) (finding

prejudicial error where the court failed to give a condition precedent instruction);

see Deboom, 772 N.W.2d at 5. The proposed instructions correctly stated the

law and were not stated anywhere else in the instructions.        See Beyer, 601

N.W.2d at 38. The instructions were supported by substantial evidence in the
                                          11


record.     Specifically, the settlement memorandum specifically provided it was

“subject to Robert Kunz being able to arrange financing for this purchase.”

Robert testified he attempted to obtain financing from two lenders, one of which

had a years-long banking relationship with Robert and Happy Homes, and was

declined.

       On appeal, the parties dispute whether Robert made a good faith effort to

fulfill the condition precedent (for example, should he have contacted additional

lenders, or was it enough to contact the lender with whom he had a longstanding

business relationship) and thus whether the parties had a duty to perform. See

Engstrom v. State, 461 N.W.2d 309, 314 (Iowa 1990) (“A contract imposes upon

each party a duty of good faith in its performance and enforcement.” (citing

Restatement (Second) of Contracts § 205 (1981)). It is the jury’s duty to resolve

factual questions, and the jury is free to believe or disbelieve the witnesses’

testimony. Estate of Hagedorn ex rel. Hagedorn v. Peterson, 690 N.W.2d 84, 88

(Iowa 2004) (“[T]he credibility of witnesses is peculiarly the responsibility of the

fact finder to assess.”). Whether Robert was able to “arrange financing” or made

a good faith effort to “arrange financing” is a question for the jury, and the district

court should have instructed the jury on the issue.           In the absence of an

instruction on the issue, the jury was not able to resolve the fact question.

       We hold the failure to give the condition precedent instruction was

prejudicial and requires a new trial.

                                          C.

       We choose to address an issue that might arise at retrial.               Robert

maintains his personal finances were irrelevant to the issues at trial and the court
                                           12


erred in allowing evidence of his personal assets. Robert’s personal finances

would be probative of whether he made a good faith effort to obtain financing.

The Settlement Memorandum was silent as to the means by which Robert would

arrange financing for the purchase of Connie’s interest in Happy Homes. Robert

argues the agreement did not require him to use his personal assets.           Had

Robert wished to include such a condition upon his financing of the purchase of

Connie’s interest, he was free to do so. He did not. We will not read such a

condition into the parties’ agreement. Robert’s personal financial assets were

relevant to his ability to finance his purchase of Connie’s shares. We find no

error.

                                           IV.

         For the above stated reasons, we reverse the judgment of the district court

and remand for new trial.

         REVERSED AND REMANDED.

         Doyle, J., concurs; Danilson, C.J., partially dissents.
                                          13


DANILSON, Chief Judge. (concurring in part and dissenting in part)

       I concur and agree with the majority except I part ways with the majority

on the issue of whether Robert was prejudiced by the failure to give his

requested instructions on condition precedent.             Under the circumstances

presented here, I conclude the failure to give the requested instructions did not

prejudice Robert.    I note the issue of whether Robert was able to arrange

financing was litigated at trial. Robert’s failure to obtain financing was urged as a

basis and in support of his defense of impossibility. The jury apparently rejected

Robert’s testimony he was not able to arrange financing. I also acknowledge the

distinct difference between impossibility and a good faith attempt.            But it is

significant that Robert’s refusal to pledge any of his personal assets and his

attempt to obtain financing solely on the basis of the company’s assets was

undisputed. Moreover, it is clear the mediation agreement does not afford him

that privilege. A good faith attempt to obtain financing required he use any of his

assets as a pledge or security to obtain financing.          I conclude the failure to

instruct the jury on conditions precedent was not prejudicial and does not

constitute reversible error.

       I would add that Robert has failed to preserve error by failing to object to

the instructions in their final form.    See Iowa R. Civ. P. 1.924.5         Robert did


5
Rule 1.924 provides, in part:
      Before the argument to the jury begins, the court shall furnish counsel
      with a preliminary draft of instructions which it expects to give on all
      controversial issues, which shall not be part of the record. Before jury
      arguments, the court shall give to each counsel a copy of its instructions
      in their final form, noting this fact of record and granting reasonable time
      for counsel to make objections, which shall be made and ruled on before
      arguments to the jury. Within such time, all objections to giving or failing
      to give any instruction must be made in writing or dictated into the record,
                                         14


request jury instructions on condition precedent after the court provided its

preliminary draft instructions, which request was denied. He did not, however,

object to the final form of the instructions—leaving nothing to be considered on

appeal. See id.




      out of the jury’s presence, specifying the matter objected to and on what
      grounds. No other grounds or objections shall be asserted thereafter, or
      considered on appeal.
