Opinion
No. 1-1005 / 00-1866.
Filed April 10, 2002.
Appeal from the Iowa District Court for Black Hawk County, GEORGE L. STIGLER, Judge.
David Yuska appeals from an adverse district court ruling on his claims against Ann Kelley and R.K. Thompson for unpaid rent and damages to his rental property. AFFIRMED.
Patrick O'Bryan of O'Bryan Law Firm, Des Moines, for appellant.
Bruce Reinders of Roan Powell, Traer, for appellees.
Considered by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
David Yuska appeals from an adverse district court ruling on his claims against Ann Kelley and R.K. Thompson for unpaid rent and damages to his rental property. On January 5, 1997, Yuska entered into a written agreement to lease residential property to Ann and Dylan Kelley. This agreement was cosigned by Ann's father, R.K. Thompson. Despite a provision requiring that notice be given in writing, Ann vacated the property in September 1998 without prior written notice to Yuska. Dylan remained on the property until March 1999, when Yuska brought a forcible entry and detainer action seeking to remove him for failure to pay rent.
Yuska subsequently filed an action against the Kelleys and Thompson to recover unpaid rent and damages to the property. Following a hearing, the district court made the following findings of fact:
In August 1998 Ms. [Kelley] gave oral notice to Mr. Yuska her marriage to Mr. Kelley was not working out and that she had moved from the premises. Mr. Thompson advised that because his daughter had left the premises he would no longer be responsible as a cosigner on the lease. Despite this knowledge Mr. Yuska continued to allow Mr. Kelley to live in the premises and did not seek a new lease with Mr. Kelley. In December of 1998 on notice that a rent payment had been missed, Mr. Thompson advised Mr. Yuska his daughter had moved from the premises and that he, Mr. Thompson, would no longer be bound by the cosigner agreement. This particular notice was supplied by Mr. Thompson's attorney to Mr. Yuska in writing. Despite this formal notice Mr. Yuska continued to allow Mr. Kelley to live in the premises and did not seek a new rental agreement with Mr. Kelley.
The court found that in failing to act upon receiving notice that Ann and Thompson repudiated the lease, Yuska waived his right to enforce the lease against them. Dylan was thereafter found solely liable for Yuska's damages.
On appeal Yuska asserts that the court erred in dismissing his claims against Ann and her father. He contends Ann and Thompson remain liable under the lease due to their failure to provide written notice to terminate the lease. Yuska alternatively argues the district court erred in not holding Ann liable for the damages under Iowa Code section 597.14 (1997) as "reasonable and necessary expenses" of the marriage.
Our review is for correction of errors at law. Iowa R. App. P. 6.4.
Estoppel by acquiescence occurs when a person knows or ought to know of an entitlement to enforce a right and neglects to do so for such time as would imply an intention to waive or abandon the right. Schiltz v. Teledirect Int'l, Inc., 524 N.W.2d 671, 674 (Iowa Ct.App. 1994). In the context of a lease agreement, the inference the lessor has waived a breach is supported by conduct of the lessor which is consistent with the continued existence of the lease and inconsistent with its termination by forfeiture. Jack Moritz Co. Mgmt. v. Walker, 429 N.W.2d 127, 129 (Iowa 1988). We, like the district court, conclude Yuska waived his right to enforce the lease against Ann or Thompson by continuing to lease the apartment to Dylan following actual notice that Ann had moved and that she and Thompson no longer considered themselves liable under the lease. This action, or failure to act, was inconsistent with an intent to immediately terminate the lease.
We decline to address Yuska's contention that Ann is liable for the damages as marital necessities under section 597.14. We find no indication in the record that Yuska asserted this theory of recovery before the district court. City of Fort Dodge v. Civil Serv. Comm'n, 562 N.W.2d 438, 440 (Iowa Ct.App. 1997) (issues must be presented to and passed upon by trial court before raised on appeal). It is axiomatic that we will not consider issues raised for the first time on appeal. Kroblin v. RDR Motels, Inc., 347 N.W.2d 430, 434 (Iowa 1984).
We have carefully considered all issued raised on appeal and find they have no merit or are effectively resolved by the foregoing. The judgment of the district court is affirmed in its entirety.
AFFIRMED.