Ziskovsky v. Ziskovsky
| Decision Date | 09 January 2014 |
| Docket Number | No. 3-1062 / 13-0360,3-1062 / 13-0360 |
| Parties | MARILYN J. ZISKOVSKY, Plaintiff-Appellee, v. DWANE ZISKOVSKY and ANN ZISKOVSKY, Defendants-Appellants. |
| Court | Iowa Court of Appeals |
Appeal from the Iowa District Court for Johnson County, Paul D. Miller, Judge.
Real estate installment contract purchaser appeals the district court's holding that no contract existed due to lack of mutual assent, and in the alternative, due to a lack or failure of consideration. AFFIRMED.
Robert O'Shea of O'Shea & O'Shea. P.C., Hiawatha, for appellants.
John W. Hayek and Laura E. Bergus of Hayek, Brown, Moreland & Smith L.L.P., Iowa City, for appellee.
Heard by Vogel, P.J., and Mullins and McDonald, JJ.
Dwane and Ann Ziskovsky appeal the district court's finding that no contract existed for their purchase of sixty acres of land from Marilyn Ziskovsky, and quieting title in Marilyn. The court found the contract failed because there was no mutual assent, or in the alternative, for a lack or failure of consideration. The court granted Dwane and Ann easement rights and required Marilyn to repay any taxes Dwane and Ann paid on the property. We affirm the district court's conclusion, but base our reasoning on other grounds.
This dispute concerns the ownership of a sixty-acre tract of farmland located in Johnson County. Marilyn and her late husband Vernon began farming the sixty acres when they acquired their 272-acre farm in 1963. Vernon and Marilyn farmed the land until Vernon's death in 2006. Marilyn and her son Norman continue to farm the property.
At the time of trial, Marilyn was seventy-eight years old and lived on the family farm in rural Swisher. Marilyn has a high school education. Over her lifetime, she has worked on the farm and as a housewife and mother. She also served for a stint on an election board. Marilyn has five children. Dwane is the second oldest child.
In September 1999, Dwane and his wife Ann, acquired a six-acre tract of land adjacent to Marilyn's farm. Dwane and Ann currently live on this property. The property was zoned for agricultural use and landlocked. The couple did not have legal access to the property. The couple desired to place a manufacturedhome on the property. It appears the couple was unaware, until October 1999, that Johnson County development regulations required at least forty acres of land to qualify as a "farm." A residence can be placed on a farm property without rezoning the property. It was unlikely that Dwane and Ann would succeed in rezoning the six acres to a residential classification.
Dwane and Ann testified the Johnson County zoning issues prompted them to ask Marilyn and Vernon if they would be willing to sell the sixty acres adjacent to their six-acre tract. The sale would allow Dwane and Ann to satisfy the Johnson County "farm" requirement in order to place the manufactured home on the property. Dwane stated that Vernon agreed to sell the land for $1000 per acre. Dwane and Ann went to a local attorney who gave them a real estate contract for the sale of the sixty acres. That contract forms the heart of this dispute.
On October 31, 1999, Dwane and Ann arrived at Marilyn's and Vernon's farmhouse unannounced with the proposed contract. The couple was in a hurry to have the contract signed and recorded, since the manufactured home was to be delivered the next week. Marilyn claims Dwane and Ann did not tell her what the contract was and only told her to sign the last page. She also claims she thought the contract was for an easement so Dwane and Ann could legally access their six acres. Marilyn claims the parties met for about twenty minutes; Dwane and Ann claim the meeting lasted for almost an hour. All four individuals signed the contract. Vernon also signed a "Ground Water Hazard Statement." The only witnesses to the contract were the four parties. The contract was notnotarized.1 Marilyn did not receive a copy of the contract. The Johnson County recorder recorded the contract without the requisite notary signature.
The contract lists the purchase price as $60,000.00, payable in $500 per month payments commencing on or about November 1, 1999. The contract provides that Dwane and Ann would make a down payment of $0 on the purchase, and would take possession of the property on November 1, 1999. The contract also requires Vernon and Marilyn to pay all property taxes due September 1, 1999 and March 1, 2000, 66% of the property taxes due on September 1, 2000, and any unpaid taxes thereon payable in prior years.
Dwane claims at the time the parties signed the written contract, they made an oral agreement, which modified the written contract.2 Dwane testified the parties made an oral agreement allowing Marilyn and Vernon to continue farming the sixty acres. In exchange for Vernon's and Marilyn's continued use of the property, Dwane and Ann would not make the $500 monthly payments. Dwane and Ann would start making payments, as required by the written contract, when Vernon and Marilyn stopped farming the land. For the next ten years, Vernon and Marilyn continued to farm the land. Dwane and Ann made no payments on the land and did not take possession of the property except for use of a portion for necessary access to the six-acre tract, but they did pay $7494 inproperty taxes over ten years.
When Vernon passed away in October 2006, the attorney handling Vernon's estate conducted a title search. He discovered the recorded real estate contract. In February 2010, Marilyn filed a petition to rescind the contract, find that no real estate contract existed, and quiet title to the real estate.3
In June 2012, after a bench trial, the district court entered its findings of fact, conclusions of law and judgment entry. It found that no contract existed for the sale of the sixty acres to Dwane and Ann due to a lack of mutual assent. The court granted the request to quiet title to the real estate. It concluded Dwane and Ann had no interest in that land aside from an easement across it to reach their home. Dwane and Ann have appealed.
Marilyn's claims to rescind the contract, to find that no contract existed, and to quiet title were brought in equity; therefore, our review of the district court is de novo. Stecklein v. City of Cascade, 693 N.W.2d 335, 336 (Iowa 2005). While we give weight to the district court's factual findings, we are not bound by them. Schaefer v. Schaefer, 795 N.W.2d 494, 497 (Iowa 2011). "Written instruments affecting real estate maybe set aside only upon evidence that is clear, satisfactory and convincing." Iowa R. App. P. 6.904(3)(l). See Smith v. Harrison, 325 N.W.2d 92, 93 (Iowa 1982) (); see also Khabbaz v. Swartz, 319 N.W.2d 279, 282 (Iowa 1982) ().
In their appeal, Dwane and Ann argue the district court erred in finding a lack of mutual assent. They argue the signed contract provides all the evidence necessary to find mutual assent. Absent fraud or mistake, Marilyn should be bound by her signature. Marilyn counters by arguing there was not a sufficient "meeting of the minds" over the terms of the contract. She did not fully understand the terms of the contract and claims that she did not intend to enter into an agreement to sell the land. She points to the parties' lack of performance under the terms of the contract as proof the contract lacked mutual assent.
For a contract to be valid, the parties must express mutual assent to the terms of the contract. Schaer v. Webster Cnty., 644 N.W.2d 327, 338 (Iowa 2002). Mutual assent is present when it is clear from the objective evidence that there has been a meeting of the minds. Id. To meet this standard, the contract terms must be sufficiently definite for the court to determine the duty of each party and the conditions of performance. Seastrom v. Farm Bureau Life Ins. Co., 601 N.W.2d 339, 346 (Iowa 1999). "[T]his assent usually is given through the offer and acceptance." Kristerin Dev. Co. v. Granson Inv., 394 N.W.2d 325, 331 (Iowa 1986). In a contract by offer and acceptance, "the acceptance must conform strictly to the offer in all its conditions, without any deviation or condition whatever." Shell Oil Co. v. Kelinson, 158 N.W.2d 724, 728 (Iowa 1968). Otherwise, there is no mutual assent and therefore no contract. Id.
In finding a lack of mutual assent, the district court relied on the parties'actions following the signing of the written real estate contract. The court also considered evidence presented at trial to gain an understanding of the parties' intentions when they signed the written agreement. It concluded "that the contract relied on by Dwane and Ann as establishing their ownership of the property in dispute is invalid because the parties thereto (Vernon, Marilyn, Dwane, and Ann) did not express mutual assent to the terms of the contract."
It is well-settled contract law that if a party to a contract is able to read the contract, and is given an opportunity to do so, that party cannot later argue she did not read the contract and remove herself from the terms of the contact. See Joseph L. Wilmotte & Co. v. Rosenman Bros., 258 N.W.2d 317, 323 (Iowa 1977). "Absent fraud or mistake, ignorance of a written contract's contents will not negate its effect." Small v. Ogden, 147 N.W.2d 18, 22 (Iowa 1966).
The parties testified that Dwane and Ann paid an attorney to draft a contract for the sale of the sixty acres. The couple then took the contract to Vernon and Marilyn at their farmhouse. The parties sat at the kitchen table and discussed the contract. Testimony shows Vernon and Marilyn had ample time to read the four-page contract. After their discussion, the parties signed the contract. None of the parties contest the validity of the signatures on the contract. The parties do not contest the terms of the contract. The record...
To continue reading
Request your trial