IN THE COURT OF APPEALS OF IOWA
No. 20-0831 Filed November 3, 2021
JASON BAILEY, Plaintiff-Appellant,
vs.
SADLER BROTHERS GENERAL PARTNERSHIP, SADLER BROTHERS PROPERTIES, LLC, ROY T. SADLER REVOCABLE TRUST, MYRNA P. SADLER REVOCABLE TRUST, and GRANDMA SADLERS'S PROPERTY, LLC, Defendants-Appellees. ________________________________________________________________
Appeal from the Iowa District Court for Linn County, Jason D. Besler, Judge.
Jason Bailey appeals from a district court ruling denying his request for
declaratory relief and order for specific performance. AFFIRMED AND
REMANDED.
Peter C. Riley of Tom Riley Law Firm, P.L.C., Cedar Rapids, for appellant.
Molly Parker and Megan R. Merritt of Shuttleworth & Ingersoll, Cedar
Rapids, for appellees.
Considered by Tabor, P.J., Mullins, J., and Gamble, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021). 2
GAMBLE, Senior Judge.
Jason Bailey appeals from a district court ruling denying his request for
declaratory relief and order for specific performance. Sadler Brothers General
Partnership; Sadler Brothers Properties, LLC; Roy T. Sadler Revocable Trust;
Myrna P. Sadler Revocable Trust; and Grandma Sadler’s Property LLC
(collectively Sadlers) seek appellate attorney fees. We affirm and remand to the
district court to determine reasonable appellate attorney fees.
I. Background Facts and Prior Proceedings
An epic flood swamped Cedar Rapids in 2008. The city adopted a flood-
control-system master plan in response. The city planned to purchase land on the
unprotected side of the flood control system by voluntary sale or mandatory
acquisition through eminent domain.
Sadlers owned three parcels of land and buildings (properties) on the
unprotected side of the proposed flood control system. In November 2008, Bailey1
purchased the properties from Sadlers by two installment contracts that were
identical with exception to the land described in the contracts. The contracts
provided that Bailey would make monthly payments over ten years followed by a
balloon payment on November 10, 2018. And because of the properties’ location,
the parties anticipated the city might purchase the properties during the ten-year
installment period, so they included a contract provision detailing how they would
split any profit or loss from a sale to the city.2 The contracts provided that after
1 Jason Beauregard and Bailey purchased the properties together. But Beauregard subsequently transferred his interests to Bailey. 2 The contracts included the following special provision: 3
Bailey paid all money and interest due under the contracts, then Sadlers would
deliver the warranty deeds and abstracts showing merchantable title.3 The
contracts also included forfeiture clauses permitting Sadlers to cancel the contracts
if, among other things, Bailey “fail[ed] to make the payments aforesaid, or any part
thereof, as same bec[a]me due.”
Bailey made his monthly payments and maintained the properties as
required by the contracts. In 2014, the city contacted the parties and inquired
If the property is bought by a governmental entity due to flooding concerns, the proceeds from such a buyout will be allocated first to payoff of this contract, then to reimburse [b]uyers for improvements made to the property subsequent to the execution and delivery of this contract, with any additional proceeds to be split equally between the [s]ellers and [b]uyers. If buyout proceeds are less than the contract balance, the deficiency will be split equally between the [s]ellers and [b]uyers. 3 The contracts provided:
If all said sums of money and interest are paid to [s]ellers during the life of this contract, and all other agreements for performance by [b]uyers have been complied with, [s]ellers will execute and deliver to [b]uyers a warranty [d]eed conveying said premises in fee simple pursuant to and in conformity with this contract and [s]ellers will at this time deliver to [b]uyers an abstract showing merchantable title, in conformity with this contract. Such abstract shall begin with the government patent (unless pursuant to the Iowa State Bar Association title standards there is a lesser requirement as to period of abstracting) to said premises and shall show title thereto in [s]ellers as of the date of this contract; or as of such earlier date if and as designated in the next sentence. This contract supersedes the previous written offer of [b]uyers to buy the above described property which was accepted by [s]ellers on the 16th day of October, 2008. Sellers shall also pay the cost of any abstracting due to any act or change in the personal affairs of [s]ellers resulting in a change of title by operation of law or otherwise. If any personal property is a part of this agreement, then upon due performance by [b]uyers, [s]ellers shall execute and deliver a [b]ill of [s]ale consistent with the terms of this contract. Sellers shall pay all taxes on any such personal property payable in 2008, and all taxes thereon payable prior thereto. 4
about purchasing the properties. For a number of years, the city, Bailey, and
Sadlers negotiated the potential sale of the properties. Sadlers and Bailey had the
property appraised. Bailey expressed a willingness to sell to the city for the
appraised value with the contingent of moving out in early 2019. On February 15,
2018, Bailey’s attorney asked the city’s representative to forward a draft purchase
agreement. The city sent purchase agreements to Bailey consistent with their
discussions. The city’s cover letter informed Bailey, “If you do not accept the offer,
the City wishes to continue negotiating with you regarding the purchase of your
propert[ies]. Ultimately, the propert[ies] may be acquired in an eminent domain
proceeding if we cannot agree to the terms of the purchase within a reasonable
time.”
Sadlers were concerned delay may lead the city to acquire the properties
through eminent domain at a lower price. By April 2018, Sadlers and the city had
come to an agreement on the sale for its appraised value and awaited Bailey’s
response. Bailey decided not to sell to the city. But he never informed the city or
Sadlers that he had decided not to sign the purchase agreements. He just asked
his attorney “to hold off on doing any more work on this for now.” In response,
Sadlers notified Bailey that delay would not allow him to avoid the contractual profit
split and demanded they proceed to closing.
As the balloon payment due date, November 10, 2018, approached,
Thomas Sadler contacted Bailey to confirm Bailey would be able to tender the
balloon payment and offered to negotiate an extension if needed. But Bailey never
indicated he required an extension of time. Bailey’s attorney contacted Sadlers’
attorney to confirm the amount of the balloon payments and confirmed the 5
November 10 due date. Bailey requested an updated abstract so he could obtain
financing needed to make the balloon payment as required by the contract.
Sadlers’ attorney responded with the total amount required for the balloon
payments and also stated the amount she believed the Sadlers would be entitled
to upon the sale of the properties to the city. She offered to provide extended
abstracts if Bailey would provide proof of financial ability to make the required
payments.4 She also noted “that the deeds in fulfilment of the contracts will include
a notation regarding the Sadler entities’ reservation of rights to their share of the
proceeds from the sale of the properties to the City of Cedar Rapids pursuant to
the terms of the installment contracts.” Bailey hired new counsel who demanded
delivery of the abstracts and stated, “If the abstracts are not provided, Mr. Bailey
will offset against the balances due under the contracts the cost of making new
abstracts.”
Bailey did not sign the purchase agreements. November 10 came and
went. But Bailey did not tender the balloon payments to Sadlers. So Sadlers
initiated forfeiture proceedings in accordance with the contracts’ forfeiture clauses.
The notice of forfeiture itemized the amounts in default including (a) the balloon
payment and (b) the profit split; and it included a thirty-day right to cure. Again,
Bailey did not tender the balloon payment.
In Bailey’s opinion, the profit split was not due because he had not sold the
properties to the city. So Bailey responded by filing this action for specific
performance, declaratory judgment, and an injunction. Bailey asked the court to
4The contracts explicitly provided that the abstracts would be delivered to Bailey after he paid all amounts due under the contract. 6
declare that the profit split provision of the contract did not survive the delivery of
a warranty deed and, upon payment of the purchase price, Bailey is entitled to a
warranty deed in fee simple. He requested an order of specific performance
requiring Sadlers to deliver the abstracts and upon tender of the balloon payment
to deliver the warranty deed. Sadlers filed a counterclaim alleging Bailey breached
the contracts by failing to make the balloon payment. The district court granted a
preliminary injunction with respect to the forfeiture proceedings. And this matter
went before the district court for trial.
The district court found Bailey breached the contracts and denied his
request for specific performance and declaratory judgment. It also determined
Sadlers “are entitled to forfeit both contracts” and “dissolved” the prior injunction
so it was “no longer in force and effect.” Bailey moved to reconsider, enlarge, or
amend the court’s findings. The court denied the motion. Bailey appeals.
II. Standard of Review
The parties disagree as to our standard of review. Bailey initiated this case
as a declaratory judgment action. “The court’s review of a declaratory judgment
action depends upon how the action was tried to district court.” Van Sloun v. Agans
Bros., Inc., 778 N.W.2d 174, 178 (Iowa 2010). “To determine the proper standard
of review, we consider the ‘pleadings, relief sought, and nature of the case [to]
determine whether a declaratory judgment action is legal or equitable.’” Id.
(alteration in original) (citation omitted). “Where there is uncertainty, a litmus test
we have applied is whether evidentiary objections were ruled on by the trial court.”
Id. (citation omitted). “If so, the action is one in law.” Id. Here, the court ruled in
evidentiary objections, suggesting this is an action at law. Moreover, at its core, 7
this is a contract case. And “[g]enerally, an action on contract is treated as one at
law.” Id. (citation omitted). So we conclude this “case was tried at law, and the
scope of review is for errors at law.” Id. at 179. “Under this standard of review,
the trial court’s findings carry the force of a special verdict and are binding if
supported by substantial evidence.” Id. “We are not, however, bound by the trial
court’s legal conclusions.” Id.
III. Discussion
Bailey claims the district court should have “granted declaratory relief to
determine his obligations under the contracts” and “ordered specific performance”
because Sadlers “refused to provide [the] warranty deeds in exchange for the
balloon payments” and “insisted on additional payments based on a condition that
had not occurred.” The crux of his claim is based on the contention that “Sadlers
made clear they would not accept the balloon payments.” So he reasons he was
left with no other option than to seek declaratory relief and specific performance
from the court.
But Bailey’s claim is flawed at its root. Since Bailey did not tender the
balloon payment, his speculation that Sadlers would not have accepted it is purely
hypothetical. And we find no evidence in the record to support Bailey’s contention
that Sadlers refused to provide the warranty deeds in exchange for the balloon
payments. Sadlers maintained their belief the city would buy out the properties
and they were entitled to the profit split. They believed the sale was imminent, and
Bailey never told them it wasn’t. So on October 28, 2018, Sadlers informed Bailey
that if he would submit proof of financial ability to pay the amounts due under the
contracts, they would extend the abstracts and forward draft deeds in fulfillment of 8
the contract noting a reservation of rights to their share of the profit split. Bailey
did not submit a commitment letter until well after the balloon payments were due.
Instead, it is clear that Bailey never attempted to tender the balloon payments to
Sadlers and he breached the contracts.5 Bailey was not entitled to declaratory
judgment. See SDG Macerich Properties, L.P. v. Stanek Inc., 648 N.W.2d 581,
589 (Iowa 2002) (“[E]quitable relief [such as declaratory judgment] is not available
for a commercial party who, through its own carelessness, failed to timely exercise
its option to renew a lease agreement.”). Likewise, Bailey was not entitled to
specific performance. See Homeland Energy Sols., LLC v. Retterath, 938 N.W.2d
664, 697 (Iowa 2020) (“Another circumstance precluding specific performance is
when the party seeking specific performance has not acted in good faith or
performed its obligations.”), reh’g denied (Feb. 26, 2020).
This case turns on Bailey’s breach of the contracts. And, as Sadlers point
out, Bailey’s breach is not excused. Sadlers did not prevent Baily’s performance.
We recognize “if one party to a contract prevents the other from performing a
condition or fails to cooperate to allow the condition to be satisfied, the other party
is excused from showing compliance with the condition.” Emp. Benefits Plus, Inc.
v. Des Moines Gen. Hosp., 535 N.W.2d 149, 155 (Iowa Ct. App. 1995). And it is
true Sadlers also sought payment of their portion of any proceeds from a sale to
the city. But no record evidence shows Sadlers would only accept the balloon
payments if they were coupled with proceeds from a sale to the city. Instead, the
evidence suggests Sadlers would have accepted the payment and preserved the
5 In his reply brief, Bailey “admits he breached the contracts and . . . he never paid the balloon payments.” 9
issue of the profit split for later resolution. Thomas Sadler testified Bailey never
offered to make the balloon payment. If he had, Thomas testified the monies would
have been placed in escrow and deeds would not have been given until the courts
made a decision on the profit split. Thomas believed Bailey would go forward with
the sale to the city because the alternative was eminent domain, and Thomas
wanted to preserve Sadlers right to the profit split in the event Bailey signed the
purchase agreements because he believed the split of the profits was part of
Bailey’s obligations under the contracts. And, as noted above, Sadlers’ lawyer
offered to tender the deeds in fulfillment of the contract with a reservation of rights
to preserve the profit-split issue. So we conclude Sadlers did not prevent Bailey
from making the balloon payments by demanding payment of the profit split from
a sale they reasonably believed was imminent.6 Bailey was free to do so, and the
profit split issue would be decided later.
Similarly, Sadlers did not prevent Bailey from making the balloon payments
by not providing him with the abstracts of title to assist him in securing financing
for the balloon payments. The contracts specifically stated the abstracts would
only be delivered after Bailey paid all amounts due by the contract. Nevertheless,
6The district court noted Thomas Sadler states in his deposition that it “might have been clear into September, October, that—that the deal wasn’t going to happen. I think, because Jason [Bailey] turned around and rented—rented the property that he had purchased into so.” The court additionally notes, however, when asked whether he believed Mr. Bailey intended to go forward with the sale of this property to the city he responded with “Yes, I did.” It is clear from the entire context of his testimony the defendants believed the plaintiff was planning to [sell] the properties, but dragging the matter out so as to avoid paying them their share of the proceeds under the contracts. (Record citation omitted.) This finding is supported by substantial evidence. 10
Sadlers offered to provide extended abstracts to Bailey in exchange for a financial
commitment letter. And Bailey had a decade to secure financing for the balloon
payments. Bailey claims he was ready, willing, and able to perform. He had a
loan proposal from one bank subject to underwriting and loan committee approval.
He was in discussions with another bank but did not receive a loan commitment
until after he defaulted. In order to speed up the process, Bailey could have
ordered new abstracts, as his lawyer threatened, yet he chose not to do so. See
Yager v. Farmers’ Mut. Tel. Co., 323 N.W.2d 245, 249 (Iowa 1982) (“The mere fact
that performance becomes economically burdensome does not excuse
performance unless the unforeseen contingency alters the essential nature of the
performance.”).
So Bailey breached the contracts by failing to pay the balloon payments
eliminating Sadlers’ obligation to deliver the warranty deeds to him. See Van Oort
Constr. Co., Inc. v. Nuckoll’s Concrete Serv., Inc., 599 N.W.2d 684, 692–93 (Iowa
1999) (holding the defendant did not breach a contract by non-performance when
the plaintiff had already materially breached the parties’ contract); see also
Restatement (Second) of Contracts § 237 cmt. a (Am L. Inst. 1981) (“A material
failure of performance has, under this Section, these effects of the other party’s
remaining duties of performance with respect to the exchange. It prevents
performance of those duties from becoming due, at least temporarily, and it
discharges those duties if it has not been cured during the time in which
performance can occur.”). Bailey’s failure to perform was material. He had an
opportunity to cure and failed to even tender a payment. So the district court could
not order specific performance requiring Sadlers deliver the warranty deeds to 11
Bailey when they were no longer bound to do so under the contracts. See Foft v.
Page, 245 N.W.2d 312, 315 (Iowa 1932) (“In other words, the vendor, in a contract
specifically requiring the vendee to first pay before getting deed, need only get
himself in readiness to perform, and need make no tender until payment is made
or offered by the vendee, and the vendor is not in default until this is done.”).
Moreover, Bailey’s failure to make the balloon payments triggered the
forfeiture clauses in the contracts. The forfeiture clauses provided:
If [Bailey] (a) fail to make the payments aforesaid, or any part thereof, as same become due; . . . then [Sadlers], in addition to any and all other legal and equitable remedies which they may have, at their option, may proceed to forfeit and cancel this contract as provided by law (Chapter 656 Code of Iowa). Upon completion of such forfeiture [Bailey] shall have no right of reclamation or compensation for money paid, or improvements made; but such payments and/or improvements if any shall be retained and kept by [Sadlers] as compensation for the use of said property, and/or as liquidated damages for breach of this contract; and upon completion of such forfeiture, if [Bailey,] or any other person or persons shall be in possession of said real estate or any part thereof, such party or parties in possession shall at once peacefully remove therefrom, or failing to do so may be treated as tenants holding over, unlawfully after the expiration of a lease, and may accordingly be ousted and removed as such as provided by law.
Sadlers initiated forfeiture proceedings upon Bailey’s failure to pay the balloon
payments. And the district court determined it was equitable to permit the forfeiture
process to proceed given the facts of this case. Bailey does not squarely appeal
that ruling.7 And even if he did, we agree with the district court’s reasoning:
7 Bailey does argue because Sadlers sent him notice to pay the property taxes, as required by the contract, after they initiated forfeiture proceedings that they effectively waived forfeiture. We disagree. The taxes came due while Bailey was still in possession of the properties during this litigation. So, like the district court, we think this was reasonable and did not run contrary to Sadlers’ intent to pursue forfeiture under the contract. 12
The court finds it is equitable to allow the forfeiture of both contracts to continue, pursuant to the terms of the contracts, given the facts and circumstances of this case. [Bailey] breached both contracts with [Sadlers] by not making the balloon payments when required. [Bailey] had ample opportunity to make the balloon payments. There is no equitable doctrine allowing the court to ignore the breach by [Bailey] and not enforce the contracts as they were written. [Sadlers] properly placed [Bailey] on notice of the forfeiture, [Bailey] did not cure the breach, [Sadlers] would have accepted the balloon payments from [Bailey] if he had tendered payments, and there was no waiver of the forfeiture by [Sadlers]. [Sadlers] also acted in good faith with [Bailey] throughout their dealings. [Bailey] has also been allowed to remain in the properties for over a year since breaching the contracts. In addition, the contracts themselves provide in the event of a breach prior payments shall be retained by [Sadlers] as compensation for the use of the property or as liquidated damages for the breach of the contract. The court finds the amount paid is equitable for [Sadlers] to retain for [Bailey]’s use of the properties and as liquidated damages for [Bailey]’s breach of the contracts. Consequently, the court finds [Bailey] breached both contracts with [Sadlers], has not cured his breach of the contracts, it is equitable to allow [Sadlers] their contractual remedy to forfeit both contracts, and allowing the forfeiture to proceed is equitable under the facts and circumstances of this case.
So the court could not then enter a declaratory judgment clarifying what remaining
amounts Bailey needed to pay under the contracts and order Sadlers to deliver the
warranty deeds and abstracts upon payment. The ship had already sailed too far
down river.
The district court’s findings of fact are supported by substantial evidence.
There was no error of law. Accordingly, we conclude the district court properly
denied Bailey’s request for specific performance and declaratory judgment and
properly dissolved the temporary injunction on forfeiture.
Finally, we address Sadlers’ request for appellate attorney fees. “Generally,
attorney fees are not allowable unless authorized by statute or contractual
agreement.” FNBC Iowa, Inc. v. Jennessey Group, L.L.C., 759 N.W.2d 808, 810 13
(Iowa 2008). Iowa Code section 625.22 (2018) directs the court to “allow and tax
as part of the costs a reasonable attorney fee to be determined by the court”
“[w]hen judgment is recovered upon a written contract containing an agreement to
pay an attorney fee.” “A written contract must contain a clear and express
provision regarding attorney fees and litigation expenses in order for a court to be
authorized to add attorney fees and litigation expenses to a favorable judgment.”
FNBC, Inc., 759 N.W.2d at 810.
Here, the contracts included the following provision:
ATTORNEY FEES. In case of any action, or in any proceedings in any [c]ourt to collect any sums payable or secured herein, or to protect the lien or title herein of [s]ellers, or in any other case permitted by law in which attorney’s fees may be collected from [b]uyers, or imposed upon them, or upon the above described property, [b]uyers agree to pay reasonable attorneys’ fees.
This is a clear and express provision authorizing the award of attorney fees. So in
conformity with this provision, we award Sadlers reasonable appellate attorney
fees. However, the “record is insufficient to determine a reasonable appellate
attorney fee award.” Soults Farms Inc. v. Schafer, 797 N.W.2d 92, 111 (Iowa
2011). Therefore we remand to the district court to determine the amount of
appellate attorney fees. See id.
AFFIRMED AND REMANDED.