Mitchell County Mutual Agency, Inc., D/B/A Town & Country Insurance Agency, plaintiff-appellee/cross-appellant v. Scott H. Ginther, defendant-appellant/cross-appellee. ( 2017 )


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  •                    IN THE COURT OF APPEALS OF IOWA
    No. 16-1857
    Filed October 11, 2017
    MITCHELL COUNTY MUTUAL AGENCY, INC.,
    d/b/a TOWN & COUNTRY INSURANCE AGENCY,
    Plaintiff-Appellee/Cross-Appellant,
    vs.
    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.
    2
    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 20071 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.
    1
    T&C would retain seven years of records; no records were retained prior to 2007.
    3
    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
    2
    At trial, the Ginthers’ attorney made a professional statement there was but one trust—
    the Gary Ginther Revocable Trust, which became irrevocable upon Gary’s death.
    4
    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 binding upon him personally. He argues,
    [He] never knew what insurance coverage his father was
    purchasing for his farm, or what the payment arrangements were
    3
    T&C’s cross-appeal provides alternative grounds for recovery should this court find no
    express or implied contract existed. Because we affirm on the appeal, the cross-appeal
    is moot.
    5
    between decedent and Town & County. There was no farm
    partnership. He never accepted the insurance policy or the price
    charged. He never received a bill from Town and Country until
    after his father died. Scott never wrote a check out of his personal
    accounts or paid any consideration to Town and Country until after
    his father died and he inherited land. There was no open account
    or loan agreement which created a contractual obligation on the
    part of Scott to pay decedent’s farm insurance.
    The district court found otherwise, and substantial evidence supports the court’s
    findings. We note specifically that Scott Wilde testified as follows:
    Q. Okay. So then at the—you advanced those throughout
    the course of the year for Scott and Gary. Then comes the end of
    the year and you meet with them and neither Scott or Gary would
    pay that bill. A. That’s correct.
    Q. That’s what you had done for [sixteen] years? A.
    [Sixteen] years.
    Q. Never an issue? A. Never.
    Q. And, in fact, we turn ahead a couple pages—it’s about the
    10th or 11th page—that’s the check that Scott actually wrote to you
    paying that [2014] bill in full? A. That’s correct.
    Q. And then he stopped payment on that? A. That’s correct.
    ....
    Q. Now for [seventeen] years, you had insurance with Scott
    and Gary Ginther; correct? A. That’s correct.
    Q. And they were listed on the policy as the insured—Scott
    and Gary Ginther. A. That’s correct.
    Q. And the bills went to Scott and Gary Ginther. A. Yes.
    Q. Did Scott—and when you met with them in December,
    was Scott normally there? A. He wasn’t there all the time, but he
    was probably there seven out of ten times is what I’m going to say.
    Q. And the last few years, my understanding is, Scott would
    actually write out the checks and then Gary would sign those. A.
    That’s correct.
    Q. So Scott was aware what was going on? A. To my
    knowledge.
    Q. And he never, ever stated to you, wait a minute, this
    should only be in dad’s name. A. Never.
    Q. And he never, ever stated to you, wait a minute, this
    should be in the trust name. A. No.
    Q. He led you to believe and, in fact, you did believe that
    Scott and Gary were in a joint venture. A. Yes, that’s correct.
    Q. And Scott owned part of the property. A. Yes, that’s
    correct.
    6
    Q. And Gary owned part of the property. A. Yes, that’s
    correct.
    Q. And they were just working it out between the two of
    them. A. Yes, that’s correct.
    We are not convinced that the failure to timely pay insurance premiums
    ripens into a loan agreement regulated by Iowa Code section 537.3207 (2014),
    as urged by Scott. We reach this conclusion even though there were delays in
    past payments between the parties.
    Giving the deference due to the trial court’s findings, we reject Scott’s
    objections, and we affirm the court’s conclusions.
    AFFIRMED ON BOTH APPEALS.
    

Document Info

Docket Number: 16-1857

Filed Date: 10/11/2017

Precedential Status: Precedential

Modified Date: 10/11/2017