Opinion
23-0564
02-21-2024
ADAM PAUL WUEBKER, Plaintiff-Appellant, v. WHITAKER PROPERTIES, LLC, and DAVID WHITAKER, Defendants-Appellees.
Jason Springer of Springer Law Firm, Madrid, for appellant. David J. Hellstern of Sullivan & Ward, P.C., West Des Moines, for appellees.
Appeal from the Iowa District Court for Story County, James C. Ellefson, Judge.
Adam Wuebker appeals the entry of summary judgment for the defendants on his petition for interference with contractual relations.
Jason Springer of Springer Law Firm, Madrid, for appellant.
David J. Hellstern of Sullivan & Ward, P.C., West Des Moines, for appellees.
Considered by Bower, C.J., and Schumacher and Langholz, JJ.
SCHUMACHER, JUDGE.
Adam Wuebker sued Whitaker Properties, LLC, and David Whitaker (collectively, the defendants). He alleges the defendants improperly interfered with Wuebker's contract for the sale of property from the probate estate of June Barbara Weltha by lending an heir, Wade Weltha, the money to purchase the property from the estate, who then sold the property to Whitaker Properties, LLC. The district court granted the defendants summary judgment, and Wuebker appeals. As we determine the district court did not err in entering summary judgment, we affirm.
Ann Whitaker is a member and manager of Whitaker Properties, LLC, which buys, sells, and maintains real estate in Iowa.
We review the grant of summary judgment for correction of errors at law. Garrison v. New Fashion Pork LLP, 977 N.W.2d 67, 76 (Iowa 2022). Summary judgment is appropriate only if the moving party has shown "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Iowa R. Civ. P. 1.981(3). We view the facts in the light most favorable to the non-moving party. Garrison, 977 N.W.2d at 76.
These facts are not disputed. June Barbara Weltha died intestate on May 3, 2018, and an estate was opened later. There are two heirs-Andrea Carlson (Andrea) and Wade Weltha (Wade). Andrea was named administrator of the estate, the assets of which included property located on 290th Street in Cambridge (the Property).
In late September 2021, Andrea reached out to the Whitaker Marketing Group, LLC about possibly engaging their auction services on behalf of the estate.On October 3, 2021, David Whitaker (David) and his wife Ann Whitaker (Ann) met Andrea at the property to walk through the house. Later that night, David called Andrea and offered to purchase the property for $350,000.
Whitaker Marketing Group, LLC is another entity of which Ann and David claim an interest. David's affidavit states that through this LLC "we provide real estate brokerage and auction services, many times helping out estates in Iowa."
On October 6, David texted Andrea to schedule a second viewing of the property and "then put the rest of the deal together. I have met with the bank and it sounds like we are moving forward." Andrea gave David a day when she would be available to show the property again and David texted back, "Let me check with my dad and I will get back with you that will probably work maybe in the afternoon."
On October 9, Andrea texted Ann, "Hi Ann. I have accepted a cash offer on the acreage that was too good to pass up. They were willing to take care of the septic if needed as well. It was nice meeting you guys and I wish you the best."
On October 12, Andrea filed an application for authority to sell real estate, which stated in part:
(3) The Administrator has accepted the Offer [from Wuebker], subject to the approval of this Court.
(4) The prior Application for Authority to Sell Real Estate provided that the other heir, Wade Weltha, be permitted to match the terms of any 3rd party purchaser.
(5) This application should be set for hearing with notice to Wade Weltha.
Attached to the application was a real estate contract signed by Andrea as administrator and Wuebker, where Wuebker would purchase the property "as is" for $350,000.
On November 9, the probate court granted Wade the ability to purchase the property. As the beneficiary of one-half of the estate, Wade was required to pay one-half of the purchase price. "Closing on this sale shall occur on November 19, 2021."
If Wade Weltha is unable to complete and close on this purchase, the original Offer received by this estate and attached as an exhibit to the Application for Authority to Sell Real Estate will be approved and the administrator will be authorized to sell the subject real estate as set forth in that Application.
On November 18, David and Ann loaned Wade the money to make the purchase, which was secured by a mortgage on the property. On November 19, Andrea provided Wade with a court officer deed to the property. On December 30, Wade conveyed the property to Whitaker Properties, LLC via a warranty deed, and David and Ann released the mortgage.
Wuebker filed his petition on February 18, 2022, alleging the defendants had improperly and intentionally interfered with his contract to purchase the property. The elements of an intentional-interference-with contract claim are: "(1) plaintiff had a contract with a third-party; (2) defendant knew of the contract; (3) defendant intentionally and improperly interfered with the contract; (4) the interference caused the third-party not to perform, or made performance more burdensome or expensive; and (5) damage to the plaintiff resulted." Green v. Racing Ass'n of Cent. Iowa, 713 N.W.2d 234, 243 (Iowa 2006). The failure of proof on any one of these elements defeats the cause of action. See Ruden v. Jenk, 543 N.W.2d 605, 610 (Iowa 1996); Polar Insulation, Inc. v. Garling Constr., Inc., No. 15-1501, 2016 WL 6396208, at *2 (Iowa Ct. App. Oct. 26, 2016) (affirming summary judgment where there was no proof of improper interference because "a party does not improperly interfere with another's contract by exercising its own legal rights in protection of its own financial interests" (quoting Berger v. Cas' Feed Store, Inc., 543 N.W.2d 597, 599 (Iowa 1966))).
In their motion for summary judgment, the defendants argued Wuebker could not show the first element because he did not have an enforceable contract with the estate-it was contingent upon court approval and Wade's right of first refusal. The Defendants also asserted Wuebker could not prove the third element because David was protecting his own financial interests, "namely his verbal agreement to purchase the property which occurred before Wuebker's offer was signed."
Wuebker resisted summary judgment, asserting that at the very least there are material issues of fact in dispute precluding summary judgment. He asserted he "had a valid and enforceable contract until the defendants intentionally and improperly worked with Mr. Weltha to perform. The defendants had no financial interest in this property and therefore their actions of lending money to Mr. Weltha to invalidate the contract between Wuebker the estate was intentional and improper."
At oral argument on the motion, Wuebker also argued "the defendants are licensed agents in Iowa, and because of that, there-there is no way for them to have financial interests in this property because they were prohibited, under Iowa Code section 543B.56(3)(b) [(2021)]." The defendants responded "there's nothing improper about what Mr. Whitaker, or its-he actually bought the properties-the property through Whitaker Properties, LLC. So the fact that he's a [sic] agent-a Realtor should have no bearing. He was not personally the buyer. It was an LLC. Whitaker Properties, LLC was the entity ...."
Both Whitaker and the court noted Wuebker had not raised that issue in his briefing. The court looked at the statutory provision during the hearing and heard Wuebker's argument. Section 543B.56(3)(b) provides:
In providing brokerage services, a licensee shall not do . . . following: . . .
(b) Act in a transaction on the licensee's own behalf, on behalf of the licensee's immediate family or brokerage, or on behalf of an organization or business entity in which the licensee has an interest, unless the licensee has provided written disclosure of the interest to all parties to the transaction.
The district court granted the defendants summary judgment concluding:
[A]s a matter of law there was no intentional interference by the defendants with the plaintiff's contract. The plaintiff asks whether Wade would have been able to purchase the Property without the funding provided by the defendants. This is an irrelevant inquiry. The defendants were entitled to compete to purchase the Property. The Estate had previously allowed Wade to purchase property from the Estate if he was able to pay one-half of the purchase offer, a situation that had already occurred once prior to the situation at issue. Wade again utilized his right of first refusal to purchase the Property in this case. The plaintiff acknowledged the Property would go to Wade if he could obtain such funds. The fact that Wade turned around and sold the Property to the defendants does not negate the choice he was entitled to exercise, as recognized in the probate court order.
1Whether Wade received his funding from a financial institution or David and Ann Whitaker, the plaintiff's offer to purchase the Property was subject to the condition precedent of Wade's right of first refusal. Had Wade chosen to forego exercising such, the plaintiff's purchase would have gone through. However, Wade obtained the appropriate funding and purchased the Property for half of the amount of the plaintiff's offer, an option provided by the Estate and authorized by the probate court. The court finds as a matter of
law that there 1is no genuine issue of material fact in this case. Therefore, the defendants' motion shall be granted.
Wuebker appeals, making the same assertions on appeal as in the district court. He asserts there are genuine issues of material fact as to whether the defendants intentionally and improperly interfered with the contract. But the defendants also challenge Wuebker's ability to prove he had a valid enforceable contract.
The application to sell by the administrator states the administrator accepted the offer "subject to the approval of the court" and that Wade "be permitted to match the terms of any [third]-party purchaser." So until those two conditions were met, there was no enforceable contract. See Khabbaz v. Swartz, 319 N.W.2d 279, 283 (Iowa 1982) ("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." (alteration in original) (quoting Mosebach v. Blythe, 282 N.W.2d 755, 759 (Iowa Ct. App. 1979))); accord Davenport Dev. Grp. LLC v. Irrevocable Tr. of Donald L. Frantz, Dated Oct. 22, 2010, No. 18-1098, 2019 WL 4678157, at *2 (Iowa Ct. App. Sep. 25, 2019) ("Court approval of the real estate purchase agreements was a condition precedent to the Trust's performance of the contract. Because court approval was not obtained by the extended closing date, the Trust had no obligation to transfer possession of the properties to Davenport Development." (internal citation omitted)); cf. Niday v. Roehl Transp., Inc., 934 N.W.2d 29, 38 (Iowa Ct. App. 2019) ("A contract is made where the last act necessary to form a binding contract occurs.").
Wade had the right of first refusal to the estate property and exercised that right. We agree with the district court's analysis concerning the immateriality of how Wade obtained the money to complete the purchase.
As a final matter, Wuebker asserts section 543B.57(3)(b) applies here. But the district court made no ruling on the applicability of Wuebker's belated assertion that the statutory provision was applicable, and Wuebker did not seek a specific ruling on the issue, so we have nothing to review. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) ("It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal.").
AFFIRMED.