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Mitchell County Mutual Agency, Inc. v. Ginther

Court of Appeals of Iowa

October 11, 2017

MITCHELL COUNTY MUTUAL AGENCY, INC., d/b/a TOWN & COUNTRY INSURANCE AGENCY, Plaintiff-Appellee/Cross-Appellant,
v.
SCOTT H. GINTHER, Defendant-Appellant/Cross-Appellee.

         Appeal from the Iowa District Court for Mitchell County, Colleen D. Weiland, Judge.

         Scott Ginther appeals from the district court's ruling in this breach-of-contract action. AFFIRMED ON BOTH APPEALS.

          Scott H. Ginther, Rockford, pro se appellant.

          Mark L. Walk of Walk & Murphy, P.L.C., Osage, for appellee.

          Considered by Danilson, C.J., and Tabor and McDonald, JJ.

          DANILSON, Chief Judge.

         Scott Ginther appeals, and Mitchell County Mutual Agency cross-appeals, from the district court's ruling in this breach-of-contract action. Finding no error, we affirm on both appeals.

         Mitchell County Mutual Agency, Inc., doing business as Town & Country Insurance Agency (T&C) is an insurance agency located in Osage, Mitchell County, Iowa. T&C merged with Harman Insurance in 2004.

         Since 1999, the Harman Insurance agency provided property and liability insurance policies to Gary Ginther (father) and Scott Ginther (son). Gary and Scott farmed several parcels of farmland together and were the named insureds of several procured Howard County Mutual Insurance Association policies covering various real and personal properties. Harman Insurance agency and the Ginthers participated in a form of "agency billing." Harman Insurance paid to Howard County Mutual the Ginthers' various insurance premiums as they came due throughout the year. Once or twice a year, Gary would write a check to Harman Insurance for all amounts due and owing.

         This billing practice continued after Harman Insurance merged with T&C in 2004. The records indicate that from 2007[1] through 2011, Gary paid about $6000 by May of each year and the balance of sums due-roughly $9000-in late December. In 2012 and 2013, Gary did not make an early payment. At the end of 2012, Scott and Gary met with Scott Wilde of T&C and paid the 2012 payments due. In 2013, Scott paid T&C. Although not paid by the Ginthers in 2014, T&C continued to pay the insurance premiums as they came due in 2014.

         Gary died on July 23, 2014. His last will and testament was admitted without administration. Gary's property was transferred through the terms of the Gary Ginther Revocable Trust, which had been created on October 26, 2010. Notice of proof of will without administration was published ending August 14, 2014. Notice to creditors as to an irrevocable trust was published shortly thereafter.

         A dispute arose with Scott Ginther about payment to T&C at the end of 2014. Scott Ginther met with Scott Wilde in December 2014. Ginther wrote a check for sums due on the insurance policies but then stopped payment on the check and cancelled the policies. Some refunds were issued to T&C on the cancelled policies that reduced the amount owed, but no additional payments have been made to T&C to reimburse the amounts paid on the policy premiums.

         T&C filed this action against Scott Ginther, the Gary Ginther Irrevocable Trust, and the Gary Ginther Revocable Trust (together the Ginther defendants) for "account stated as an agreement" and an open account, asking for judgment in the amount of $12, 204.67, plus interest-the amount paid by T&C for the 2014 insurance policies. The matter was tried as an alternative expedited civil action pursuant to Iowa Rule of Civil Procedure 1.281. The Ginther defendants filed no response to requests for admission, filed no exhibit list, and did not submitted proposed exhibits in a timely manner. T&C presented the testimony of Scott Wilde and exhibits. The Ginther defendants presented no evidence.[2]

         On October 5, 2016, the court entered judgment in favor of T&C and against Scott Ginther, finding:

Here, I find a contractual obligation for the coverage provided by Town & Country and the amounts billed for it. Gary affirmatively made the arrangements and knew the details. Scott was aware that Gary had arranged insurance coverage for their joint operation with Town & Country, and he benefited from it. Scott may not have known the details of it, but he did not object and he did not further inquire. He simply accepted the arrangement and the coverage. Because insurance is not free, Scott had reason to know that the coverage was provided with the expectation of compensation. See Restatement (Second) of Contracts § 69 cmt. a (1981), as cited in Roger's Backhoe [Serv., Inc. v. Nicholes], 681 N.W.2d [647, ] 651 [(Iowa 2004)].

         The court found no basis for finding the Ginther Trust liable. It also rejected T&C's right to payment under theories of quantum meruit and unjust enrichment because T&C had not pled those theories. The court awarded T&C attorney fees because of discovery and trial scheduling and discovery plan noncompliance.

         Scott Ginther appeals, and T&C cross-appeals.[3]

         A contract action tried to the court is reviewed for errors at law. Rogers Backhoe, 681 N.W.2d at 649. "Trial court findings of fact are binding on us if supported by substantial evidence, but we are not precluded from inquiry into whether erroneous rules of law materially affected the decision." Id.

         Scott contends T&C's billing practice constituted a violation of the consumer credit code, and it is not ...


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