IN THE COURT OF APPEALS OF IOWA

No. 14-1371

Filed June 29, 2016

HOPE K. FARMS, L.L.C. and BRET AND MELISSA SCHILLING,

Plaintiffs-Appellees,

vs.

DAVID GUMM,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Greene County, William C. 

Ostlund, Judge.

Defendant appeals from the district court’s order and entry of judgment 

regarding a farm lease. AFFIRMED.

Alexander E. Wonio of Hansen, McClintock & Riley, Des Moines, for 

appellant.

Melissa C. Lewis of Lewis Law Office, P.C., Bayard, for appellee Hope K. 

Farms.

Kyle M. Orris of Hoyt Law Firm, P.C., Jefferson, for appellees Bret and 

Melissa Schilling.

Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
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POTTERFIELD, Judge.

David Gumm appeals from the district court’s order and entry of judgment 

regarding a farm lease. Gumm maintains the district court erred in concluding he 

materially breached the lease. Alternatively, he maintains the plaintiffs cannot 

rely on his breach of contract because the plaintiffs waived their right to have the 

terms of the contract complied with.

I. Background Facts and Proceedings

The farmland in question was previously owned by Gumm’s mother, and 

Gumm had a lease agreement with her to farm the land. After his mother died, 

the land passed to the Gumm Family Trust. Gumm was named a co-trustee 

along with two others. 

Due to various disagreements between Gumm and the other two cotrustees, multiple legal actions were filed. In one, the district court ruled the other 

two trustees could sell the farmland by majority action. In another ruling, the 

court found that Gumm could continue farming the land under the terms of the 

current lease. See Scheuermann v. Gumm, No. 12-1946, 2013 WL 3458185, at 

*1 (Iowa Ct. App. July 10, 2013). 

In late 2012, the farmland was sold to the plaintiffs in this action, subject to 

Gumm’s lease to farm the land between March 2013 and March 2015. The lease 

required Gumm to “plant such crops in a timely fashion as may be designed and 

directed by” the plaintiffs. The lease also stated the plaintiffs and Gumm were

each responsible for one-half of the costs and then each would receive one-half 

of the profits. Additionally, “[n]o expense shall be incurred for or on account of 

the [plaintiffs] without first obtaining [plaintiff’s] written authorization.” Also, the 
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lease provided the plaintiffs the right to enter the land “at any reasonable time for 

purpose of viewing or seeding and making repairs, or for other reasonable 

purposes.”

On May 24, 2013, the plaintiffs filed a joint petition for declaratory 

judgment, temporary injunction decree, and other relief. They asserted they had 

attempted to contact Gumm several times, through various means, but he 

refused to communicate with the plaintiffs regarding the lease and 2013 crop 

year farm operations because he did not recognize the plaintiffs as the owners 

and landlords of the farmland. At the time they filed the petition, Gumm had not 

yet prepared the land for planting, but he had incurred expenses by ordering 

seed and farm inputs without written (or any other form of) authorization from the 

plaintiffs. Additionally, Gumm had impeded and denied entry to a surveyor the 

plaintiffs hired to determine the boundary lines of the field. The plaintiffs 

maintained Gumm was in material breach of the lease and asked the district 

court to terminate the lease, and award them monetary damages, attorney fees, 

and court costs. They also requested an injunction barring Gumm from the 

property.

On June 4, 2013, the court filed a declaratory and injunctive order. The 

court found Gumm still had not planted any crops—which would result in 

diminished yields for the 2013 crop season—and immediate intervention by the 

court was necessary. Because Gumm was unable or unwilling to plant crops, the 

plaintiffs were “immediately put in possession of the Real Estate for the purposes 

of conducting any and all farming operations in connection with the 2013 crop.” 
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Gumm was ordered not to engage in any farming operations on the land and not 

to interfere with the farming operations of the plaintiffs. 

A bench trial on the matter took place on July 30, 2014. At the beginning 

of the trial, the plaintiffs’ attorney asked the court to take judicial notice of a 2012 

ruling where “the Court determined [the co-trustees] were authorized to sell the 

property and followed up with [the] subsequent determination of how long that 

this farm lease would still be in effect on the property.” The court did so without 

objection from Gumm. 

Bret Schilling testified that he had attempted to work with Gumm in 

accordance with the lease, but Gumm refused to communicate with him about 

any of the farming activity. Additionally, Gumm had put up barriers to block 

access to the farm. Schilling testified that at the time they filed for the declaratory 

order and injunction, he had planted 800 of his own acres and his neighbors had 

also begun planting, but Gumm had done nothing to prepare for planting the 

farmland in question. Once the injunction was entered, Schilling planted the 

crop, but he had to use seeds with a shorter maturity date, which ultimately 

reduced the yield. At trial, he clarified the plaintiffs were asking for all of the 

profits from the 2013 crop year, but that they would also assume responsibility for 

all of the expenses incurred with the crop. The owner and manager of Hope K. 

Farms testified similarly.

Gumm testified that he was prepared to farm the land with inputs he had 

purchased before the land was sold. However, he also testified that the farm 

cooperative where he purchased the inputs refused to release them to him, so he 

was unable to conduct any farming. He stated he had intended to plant both 
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corn and soybeans; he agreed he did not receive written authorization from the 

plaintiffs that was the crop they wanted him to plant. He admitted he had 

received the written demands from the plaintiffs leading up to injunction but 

claimed his former attorney advised him to ignore them. Gumm also testified that 

he believed the question of who owned the land was still in dispute. 

In August 2014, the court filed an order and entry of judgment. The court 

found Gumm had materially breached the lease by refusing to communicate with 

the plaintiffs regarding the farm operation; ignoring written and spoken directives 

regarding preparation of the real estate for planting, type of seed to be planted, 

and application of anhydrous, liquid nitrogen, and fertilizer; failing to seek 

authorization from the plaintiffs regarding expenses; failing to prepare the land 

and plant crops in a timely fashion; and impeding the plaintiffs’ right of entry and 

inspection. The court found that Gumm had no right, interest, or ownership of 

the crops harvested in the 2013 or 2014 crop year due to his material breach and 

his failure to cure the breach in spite of multiple opportunities to do so. The court 

terminated his lease and ordered Gumm to pay court costs and $1000 in attorney 

fees to both the Schillings and Hope K. Farms.

Gumm appeals.

II. Standard of Review

Gumm maintains this was an equitable action, and as such, our review is 

de novo.1 See Iowa R. App. P. 6.907. However, we believe the action was at 

law, so we review for corrections of errors at law. See Iowa Mortgage Center 

L.L.C. v. Baccam, 841 N.W.2d 107, 110 (Iowa 2013) (“The standard of review for 

 

1 The appellees did not file a final brief in this appeal.
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a breach of contract action is for correction of errors at law.”); see also Ernst v. 

Johnson Cty., 522 N.W.2d 599, 602 (Iowa 1994) (“Where there is uncertainty 

about the nature of a case, a litmus test we use in making this determination is 

whether the trial court ruled on evidentiary objections.”). 

III. Discussion

A. Judicial Notice

Gumm maintains the district court abused its discretion when it took 

judicial notice of a previous court order regarding the ownership of the land and 

the terms of the farm lease in question. However, Gumm did not object to the 

court doing so at the time of trial, and as such, any alleged error is not preserved 

for our review. Schmitt v. Koehring Cranes, Inc., 798 N.W.2d 491, 500 (Iowa Ct. 

App. 2011) (“To preserve error for appellate review, a party must alert the district 

court to the issue at a time when the district court can take corrective action.”). 

B. Material Breach of Contract and Waiver

Gumm maintains the district court erred when it concluded he materially 

breached the lease. Alternatively, he maintains the plaintiffs waived their right to 

have the terms of the complied with. 

In an action for breach of contract, the complaining party must prove:

(1) the existence of a contract; 

(2) the terms and conditions of the contract; 

(3) that it has performed all the terms and conditions required under 

the contract; 

(4) the defendant’s breach of the contract in some particular way; 

and 

(5) that plaintiff has suffered damages as a result of the breach. 
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Molo Oil Co. v. River City Ford Truck Sales, Inc., 578 N.W.2d 222, 224 (Iowa 

1998). A party breaches a contract when, without legal excuse, it fails to perform 

any promise which forms a whole or a part of the contract. Id. 

The district court found several breaches by Gumm, including failure to 

communicate with the plaintiffs about the farm operations, failure to obtain written 

authorization before incurring expenses, and failure to plant the crop in a timely 

matter. On appeal, Gumm does not challenge the district court’s application of 

law but rather encourages us to review the record de novo and find the facts 

anew. As explained above, we do not review the proceeding de novo. However, 

even if we did, we would consider the district court’s credibility determinations. 

See e.g., State v. Lane, 726 N.W.2d 371, 377 (Iowa 2007) (“In [reviewing de 

novo], we give deference to the factual findings of the district court due to its 

opportunity to evaluate the credibility of the witnesses, are not bound by such 

findings.”). Here, the district court noted that the credibility of the witnesses was 

“an important element,” and in finding against Gumm, the court implicitly found 

his testimony to be less credible. Moreover, even without such a finding, Gumm 

admitted at trial that at the time the court had entered the injunctive order, he did 

not have the inputs necessary to plant the crop and he had not communicated 

with the plaintiffs to learn how or what they wanted him to plant. As a result of 

Gumm’s inaction, the plaintiffs were required to plant the field themselves and 

they received a reduced a yield because of the later planting. This is sufficient to 

establish that Gumm breached the contract.

In the alternative, Gumm maintains that the terms of the lease the court 

found he breached had been waived by the Gumm Family Trust and that the 
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plaintiffs, who stepped into the shoes of the trust when they bought the land, 

could not reassert the rights. Gumm admits that the issue of “waiver” was never 

raised at trial, but he argues it was preserved because the issue was litigated 

insofar as “trial was a contest over whether the parties could do what they do 

relative to a contract.” 

However, waiver is an affirmative defense. New Hampshire Ins. Co. v. 

Christy, 200 N.W.2d 834, 837 (Iowa 1972). Failure to plead an affirmative 

defense normally results in waiver of the defense. Dutcher v. Randall Foods, 

546 N.W.2d 889, 893 (Iowa 1996). Even if the affirmative defense was not 

waived, Gumm would have the burden of proving the defense by a 

preponderance of the evidence. See Hillview Assocs. v. Bloomquist, 440 N.W.2d 

867, 869 (Iowa 1989). In our review of the record, we found no reference to 

waiver specifically or prior practices of the Gumm Family Trust that could 

constitute waiver.

We affirm the district court’s order and entry of judgment.

AFFIRMED.