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Worthington v. Clare

Court of Appeals of Iowa
Aug 17, 2005
705 N.W.2d 339 (Iowa Ct. App. 2005)

Opinion

No. 4-851 / 04-0742

Filed August 17, 2005

Appeal from the Iowa District Court for Marion County, Darrell Goodhue, Judge.

Marc Worthington appeals the trial court's judgment and order granting Phyllis Vroegh Clare's motion for judgment notwithstanding the verdict. AFFIRMED.

Steven Wandro of Wandro, Baer Casper, P.C., Des Moines, for appellant.

Thomas Grabinski, Grinnell, for appellee.

Considered by Huitink, P.J., and Mahan, Miller, and Vaitheswaran, JJ., and Nelson, S.J.

Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).


Following a jury trial in which the plaintiff prevailed on his claim and the defendant also prevailed on her counterclaim, the trial court sustained the defendant's motion for judgment notwithstanding the verdict. The plaintiff appeals. We affirm.

Before discussing the appeal's merit, a procedural matter must be addressed.

In his reply brief, the plaintiff-appellant for the first time raises a procedural issue, contending the judgment notwithstanding the verdict is procedurally defective because the motion for directed verdict made and overruled at the end of the plaintiff's evidence was not renewed at the end of all the evidence. Iowa Rule of Civil Procedure 1.1003 does require renewal of a denied motion for directed verdict at the close of all the evidence. However, in this case that issue was not raised by the plaintiff-appellant until his reply brief contained an allegation of procedural defect. The procedural issue was not mentioned in the plaintiff's resistance to the motion for judgment notwithstanding the verdict and, consequently, was not considered by the trial court in the ruling on the motion notwithstanding the verdict. The procedural issue was likewise not addressed by the plaintiff-appellant in his appeal brief.

While appellant has cited two cases which support the premise that a motion for directed verdict must be renewed at the close of all the evidence, Luddington v. Moore, 261 Iowa 641, 644, 155 N.W.2d 428, 430 (1968), and Quad County Grain, Inc. v. Poe, 202 N.W.2d 118, 120 (Iowa 1972), those cases do not support the proposition that such an issue may be raised for the first time in a final reply brief. To the contrary, it is well settled that we typically do not address claims raised for the first time in a reply brief. See Sun Valley Iowa Lake Ass'n v. Anderson, 551 N.W.2d 621, 642 (Iowa 1996). Moreover, the procedural issue will not be reached because it was not raised in the trial court. Id.

The controversy which led to the district court jury trial arose out of a series of farm leases entered into between plaintiff Marc Worthington, lessee, and defendant Phyllis Vroegh Clare (and originally Phyllis's husband, Dale Vroegh), landlord. The leases were originally between Marc and Dale, but after Dale's death in 1987 or 1988, continued between Marc and Phyllis. The leases in question were entered into for the years 1992, 1994, and 1997. The leases were substantially the same and contained the following provision:

No expense shall be incurred for or on account of the Landlord without first obtaining Landlord's written authorization. Tenant agrees that Tenant will take no actions that might cause a mechanic's lien to be imposed upon the Real Estate.

There is no question that expense was incurred by the plaintiff for work done on the farm during the time the leases were in effect. There is considerable confusion in the record as to whether the work done was "improvements" or "repairs," and there is considerable confusion in the record as to the actual amount of expense incurred by the plaintiff. All work was performed on a "bartered" basis, that is, the plaintiff apparently traded work for work. The plaintiff produced no evidence of cash payments by the plaintiff for any work performed by others. For purposes of this opinion, however, we assume work was done at the plaintiff's cost and at least some of the work was in the nature of improvements which benefited the defendant.

There is no confusion as to written authorization. The plaintiff produced no evidence of having ever received written authorization for any of the alleged improvements from Phyllis (or from her former husband, Dale) nor did he contend at trial that written authorization was ever received.

There is also, in our opinion, no ambiguity or inconsistency. The leases all require written consent. It is true that other provisions of the leases refer to "express consent" and "approval" without reporting the word "written," but these do not eliminate the need for written authorization. Said paragraph states what form that consent or approval must be in, which is written.

In his judgment notwithstanding the verdict ruling, the trial court concluded the plaintiff's case should not have been submitted to a jury, but should have been decided by the court as a matter of law. Certainly the legal effect of a written contract is for the court to determine. Molo Oil Co. v. River City Ford Truck Sales, Inc., 578 N.W.2d 222, 225 (Iowa 1998); Hamilton v. Wosepka, 261 Iowa 299, 305, 154 N.W.2d 164, 167 (1967).

There was no evidence produced at trial which could generate a question of negotiations, discussions, or circumstances which could be the basis for a finding the parties intended to delete or modify the written consent clause of the leases. The legal effect of the written leases, not an interpretation of said written lease, was before the trial court and was properly ruled on in the judgment notwithstanding the verdict ruling. See Ellefson v. Centech Corp., 606 N.W.2d 324, 330 (Iowa 2000).

There was no waiver by the defendant of her right to require written consent. Waiver is an international relinquishment of a known right. Scheetz v. IMT Ins. Co., 324 N.W.2d 302, 304 (Iowa 1982). No evidence of express waiver was presented, and there is no evidence of a course of conduct which could be interpreted as a waiver, such as the plaintiff apparently is relying on. See Dunn v. General Equities of Iowa, Ltd., 319 N.W.2d 515, 516 (Iowa 1982).

The appellant finally contends that even if he has failed on his initial breach of contract argument, he should recover on a quantum meruit theory because the defendant would be unjustly enriched. This theory of recovery was considered but rejected by the trial court. Without even considering whether or not the plaintiff's proof of damage truly proved cost of improvements rather than repair, the unjust enrichment argument is answered by the premise that a plaintiff cannot recover on an implied contract or unjust enrichment when the alleged damages arise from a matter covered by an express written contract. Chariton Feed Grain, Inc. v. Harder, 369 N.W.2d 777, 791 (Iowa 1985). Where there is an express contact which requires written consent (as here) upon which to have liability, a plaintiff cannot get around the written contract requirement by relying on unjust enrichment.

CONCLUSION

We conclude the trial court did not err in sustaining the defendant's motion for judgment notwithstanding the verdict.

AFFIRMED.


Summaries of

Worthington v. Clare

Court of Appeals of Iowa
Aug 17, 2005
705 N.W.2d 339 (Iowa Ct. App. 2005)
Case details for

Worthington v. Clare

Case Details

Full title:MARC WORTHINGTON, Appellant, v. PHYLLIS VROEGH CLARE, Appellee

Court:Court of Appeals of Iowa

Date published: Aug 17, 2005

Citations

705 N.W.2d 339 (Iowa Ct. App. 2005)