Robert W. Davis and Kirk K. Peterson v. American International Bridge, Inc., Anfu Wang and Chun Ling Lu
Robert W. Davis and Kirk K. Peterson v. American International Bridge, Inc., Anfu Wang and Chun Ling Lu
Opinion
Kirk Peterson and Robert Davis filed this suit against American International Bridge, Inc. ("American"), for breach of a commercial property lease agreement to which they were not parties. American filed a counterclaim against Peterson and Davis to enforce their personal guaranty of the lease after the lessee and sublessee defaulted on the lease agreement. The district court granted American's motion for summary judgment on Peterson and Davis's breach-of-contract claim, concluding they were not parties to the lease agreement, were not third-party beneficiaries of the lease agreement, and lacked standing to assert claims under the lease agreement. After a bench trial, the district court entered judgment in favor of American and against Peterson and Davis on their personal guaranties. Peterson and Davis timely filed this appeal. On appeal, they contend the district court erred in granting American's motion for summary judgment, erred in finding of favor of American on its claim, erred in calculating damages, and erred in setting the interest rate on the judgment.
I.
The record reveals the following. In 2012, Anfu Wang, doing business as American International Bridge, Inc., purchased a commercial building in Boone. In 2013, Monte Streit expressed interest in leasing the building and operating a restaurant in the building. Wang's attorney expressed reservations to Wang that relying solely on Streit to meet the lease payments would be unduly risky. Wang insisted Streit obtain guarantors. Streit contacted Peterson, Streit's physician, and Davis, Streit's dentist, for assistance. In an agreement with Streit, Peterson and Davis each agreed to sign a personal guaranty of the lease agreement and each loaned Streit $37,500. In exchange, Streit agreed to repay the loans at five percent interest and pay to each thirty percent of the profits of the restaurant. In March 2013, Streit signed the commercial lease agreement. Peterson and Davis were not parties to the agreement. On the same day, Peterson and Davis each signed a personal guaranty of the lease agreement.
The restaurant, known as Sports Story Bar & Grill, began business in April 2013. Business was poor. By August, Streit was two months behind in rent. Peterson and Davis each paid one month's rent to Wang to come current. However, Sports Story ceased operations in December 2013.
Wang reached out to Chad Borsheim, who knew several of the parties involved. Borsheim and a partner formed a partnership to run the business and sublease the *625 building from Streit. The business they formed was called the Boone Depot. Like its predecessor, the Boone Depot ran into difficulty. It failed to make all required lease payments to American. American served Borsheim a notice of default and sent copies to Davis and Peterson. In the notice, American demanded payment of all unpaid sums. The default was not cured, and the entire unpaid balance of the lease was declared due and payable.
In March 2014, Peterson and Davis filed this action against American, Wang, and Wang's wife, Chun Ling Lu (collectively, "American"). The petition asserted claims of negligent misrepresentation, fraudulent misrepresentation, and breach of lease, and requested a declaratory judgment that there "was failure or lack of consideration to Davis and Peterson" for the guaranty, rendering the guaranty unenforceable against them. The theory of Peterson and Davis's case was American failed to repair a leaky roof in the restaurant and failed to repair the adjacent parking garage, the failure to repair these items damaged the restaurant's business, the damage to the restaurant's business caused the business to default under the lease agreement, and the default under the lease agreement caused Peterson and Davis to be liable on their personal guaranties. Peterson and Davis claimed to be third-party beneficiaries of the lease agreement because of their pecuniary interest in the restaurant. The district court dismissed the breach-of-contract claim on summary judgment, and Peterson and Davis voluntarily dismissed their misrepresentation claims.
American answered and brought counterclaims against Peterson and Davis. The only counterclaim that went to trial was American's claim against Peterson and Davis to enforce their personal guaranties of the lease agreement. American sought past-due rent and property taxes in the amount of $159,000, plus interest and penalties as provided in the lease. Plaintiffs asserted an affirmative defense to this counterclaim of failure of consideration, which was substantially their same claim regarding the failure to repair the purportedly leaky roof and parking garage. The district court found in favor of the defendants and awarded damages of $197,004.06, plus interest of 10.47125%, and attorney fees of $47,475.
II.
Our review is for the correction of legal error.
See
EnviroGas, L.P. v. Cedar Rapids/Linn Cty. Solid Waste Agency
,
III.
A.
We first address the question of whether the district court correctly dismissed Peterson and Davis's claim for breach of the lease agreement as third-party beneficiaries. The primary question in a third-party beneficiary case is whether the contract manifests an intent to benefit a third party.
See
Midwest Dredging Co. v. McAninch Corp.
,
Davis and Peterson argue they are third-party beneficiaries because they had a twofold pecuniary interest in the lease agreement. First, they entered into an agreement with Streit to receive thirty percent of the profits of the restaurant. Second, as guarantors of the lease agreement they had an interest in making sure the restaurant was in good repair, which would have made it more likely the restaurant would succeed, which would have made it more likely Streit would not have defaulted on the lease agreement, which would have made it less likely they would be held liable under the guaranty. There are numerous flaws in Peterson and Davis's theory of the case.
First, in determining whether a party or parties is a third-party beneficiary, we look to the language of the contract and the circumstances surrounding contract formation.
Midwest Dredging
,
A third party who is not a promisee and who gave no consideration has an enforceable right by reason of a contract made by two others ... if the promised performance will be of pecuniary benefit to [the third party] and the contract is so expressed as to give the promissor reason to know that such benefit is contemplated by the promisee as one of the motivating causes of his making the contract.
Tredrea v. Anesthesia & Analgesia, P.C.
,
Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either
(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or
(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.
Midwest Dredging
,
In addition, it seems Peterson and Davis misapprehend the nature of the personal guaranty. Being a personal guarantor does not give Peterson and Davis a cognizable and enforceable pecuniary interest in the contracts of the restaurant. To the contrary, their personal guaranty of the lease agreement provides a pecuniary benefit to the lessor, who now has greater security under the lease agreement. Courts are uniform in concluding a personal guarantor of a contract is not a third-party beneficiary of the underlying contract.
See
Ex parte ReLife, Inc.
,
*627
Scott v. Mamari Corp.
,
The district court did not err in granting American's motion for summary judgment on Peterson and Davis's claim for breach of the lease agreement.
B.
Peterson and Davis contend the district court erred in finding there was not a failure of consideration. Specifically, Davis and Peterson allege the consideration for them signing the personal guaranty was American's promise to repair or replace the roof and parking ramp. Davis and Peterson allege American never made the necessary repairs or replacements. Therefore, they argue, American may not enforce the guaranty against them. Our review is for the correction of legal error, and we will affirm the judgment of the district court if supported by substantial evidence. Substantial evidence is evidence that a "reasonable mind would accept as adequate to reach a conclusion."
Thompson v. U.S. Fid. & Guar. Co.
,
A failure of consideration describes a situation in which a contract is valid when formed but becomes unenforceable because the performance bargained for has not been rendered.
Johnson v. Dodgen
,
Davis and Peterson cite
Kizer v. Sievers
, No. 14-0503,
Kizer is inapplicable here. Peterson and Davis again conflate separate issues. The consideration for them signing the personal guaranty was not American's duty to repair the roof or repair the parking garage. That was, perhaps, consideration for *628 Streit's entry into the lease agreement, an agreement to which Peterson and Davis were not parties. The consideration for the personal guaranty was Streit's promise to repay the loans at five percent interest and to give Peterson and Davis each thirty percent of the profit of the restaurant.
Even assuming, however, the condition of the roof is the relevant issue, the district court found there was not a failure of consideration. The finding is supported by substantial evidence. Wang testified he never observed any leaking roof issues that were not addressed. A handyman testified he came out to make repairs as issues were raised. Davis and Peterson offered to buy the building from Wang in late 2013 for $925,000. The "offer to buy" does not note any issues with the roof or parking ramp. The district court did not err in concluding Peterson and Davis failed to prove a total failure of consideration.
C.
Davis and Peterson believe certain payments they made to American went unaccounted for in the court's damages award. Specifically, they assert they are entitled to credit for rent payments of $18,000 and two separate real estate tax payments of $3508.40 and $8511.
We conclude the issue was not preserved for review.
See
Mitchell v. Cedar Rapids Cmty. Sch. Dist.
,
D.
Davis and Peterson next challenge the interest rate on the judgment. The district court entered judgment against Davis and Peterson in the amount of $197,004.06 with interest of 10.47125% from and after the first day of trial. The lease provides that delinquent payments (including late charges) shall accrue interest at 10%, compounded monthly, from the due date, until paid. It was undisputed at trial that "10%, compounded monthly," was an annual rate of 10.47125%. Davis and Peterson argue this 10.47125% interest rate exceeds the maximum allowable by law. We disagree.
Iowa Code section 535.3(1) provides interest on judgments (except in workers' compensation cases) will be calculated at a rate set by section 668.13.
See
*629 E.
Davis and Peterson believe the court abused its discretion in its award of attorney fees.
See
Kragnes v. City of Des Moines
, No. 13-2065,
IV.
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.