IN THE COURT OF APPEALS OF IOWA

No. 22-0774

Filed February 22, 2023

ATERRA 144, 1960 GRAND AVENUE, WDM, LLC,

Plaintiff-Appellee,

vs.

DAVID B. ANDERS,

Defendant-Appellant,

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Michael D. Huppert, 

Judge. 

Following a bench trial, the defendant challenges the district court’s ruling 

that his 2005 guaranty is enforceable by successor landlords and the award of 

attorney fees. AFFIRMED. 

Brett T. Osborn and Emily X. Douglas of Abbott Osborn Jacobs PLC, West

Des Moines, for appellant.

Matthew A. McGuire, Mitchell R. Kunert, and Kevin B. Patrick (until 

withdrawal) of Nyemaster Goode, P.C., Des Moines, for appellee.

Heard by Vaitheswaran, P.J., and Greer and Chicchelly, JJ.
2

GREER, Judge.

Following a bench trial, David Anders appeals the district court ruling that 

his 2005 personal guaranty of a lease was enforceable by successor landlord

Aterra 144, 1960 Grand Avenue, WDM, LLC (Aterra) and the judgment entered 

against him. Anders raises a number of alternative theories why the district court 

erred in its ruling: (1) Aterra’s predecessor in interest abandoned his guaranty, (2) 

his guaranty was discharged through accord and satisfaction, and (3) Aterra

waived his guaranty by failing to rely on it when it purchased the leased premises 

in 2019. Anders also challenges the district court’s award of attorney fees to Aterra 

as excessive.

I. Background Facts and Proceedings.

In April 2005, Crazy Chicken, LLC—a Nebraska limited liability company—

sought to enter a lease agreement with the then-owners of a shopping center in 

West Des Moines. The property was managed by John Mandelbaum,1 and he 

negotiated the lease. Anders, as one of the members of the Crazy Chicken, signed 

the lease on behalf of the LLC. The lease agreement was for a term of five years 

and six months (until January 30, 2011) and gave Crazy Chicken the option to 

renew for up to two additional five-year periods so long as Crazy Chicken notified 

the landlord no later than six months prior to the expiration of the then-current lease 

term, was not in default, and had not been late on rent more than three times. 

Anders was the only member of Crazy Chicken asked to give a personal guaranty, 

and he did. He guarantied “the timely payment of rent and all other charges to be 

1 Technically Mandelbaum Commercial Real Estate Services, L.L.C. was the 

property manager, of which John Mandelbaum was the owner. 
3

paid by [Crazy Chicken] under the Lease” and also agreed the guaranty would 

“remain in full force and effect as to any renewal or extension of the Lease 

regardless of any modification or amendment of the Lease.” 

Sometime in 2007 or 2009,2 Anders transferred his ownership interest in 

Crazy Chicken to other members. This left Dawnielle Beister, Kenneth Beister, 

Collin Nabity,3 and Chicken Coop of Kearney, Inc. as the owners of Crazy Chicken.

In June 2010, Kenneth and Dawnielle4 notified Mandelbaum that Crazy 

Chicken wanted to renew the lease. A few months later, in October, Crazy Chicken 

and Mandelbaum executed the “first addendum to the lease.” In it, Crazy Chicken 

and Mandelbaum agreed “the Lease is continued and has not lapsed.” It also 

included the following:

5. Landlord acknowledges that the Ownership interests of 

Crazy Chicken, LLC have changed and that Dawnielle Beister now 

owns a 25% interest, Kenneth Beister now owns a 25% interest. 

[Collin] Nabity now owns a 35% interest and Chicken Coop of 

Kearney, Inc. now owns a 15% interest. David Anders has sold his 

entire ownership position and is no longer an owner of Crazy 

Chicken, LLC; and

6. Dawnielle Beister, Kenneth Beister and [Collin] Nabity have 

each agreed to personally guarantee the Lease, as amended, and 

have executed and had notarized the attached personal guarantees; 

and

7. All the other terms and conditions of the initial Lease shall 

remain the same and are hereby ratified and confirmed by the 

parties.

2 There is contradicting evidence about the date in the record. Multiple witnesses 

testified Anders sold his interest in Crazy Chicken in 2007, but a letter from an 

attorney written in March 2010, which Anders introduced into evidence at trial,

states that Anders transferred his member interests on January 1, 2009. 

3 Nabity’s first name is spelled as both “Colin” and “Collin” in the record. For 

consistency, we will use “Collin.”

4 We refer to Kenneth and Dawnielle Beister by their first names to avoid confusion. 
4

Kenneth, Dawnielle, and Nabity each signed the first addendum on behalf of Crazy 

Chicken. 

Crazy Chicken and Mandelbaum executed a second addendum to the lease 

in 2015 and then a third addendum in 2016.

In 2019, the owners of the shopping center sold the property to Aterra. As 

part of the purchase agreement, Aterra purchased the “space leases,” which the 

contract defined as “all tenant space lease(s), license(s), concessions or other 

occupancy or use agreements, including all modifications, addenda and 

supplements thereto and guarantees thereof, applicable to any part of the Real 

Estate.” The purchase agreement specifically included “any guarantees or 

warranties relating to the Real Estate or Personal Property.” The previous owners 

and Aterra also executed an assignment and assumption of leases, which included 

Crazy Chicken’s lease. 

In July 2020, Crazy Chicken and a manager for Aterra executed the fourth 

addendum to the lease agreement.5

Then in August, Aterra advised Crazy Chicken that it was in default of the 

lease agreement “for failure to pay rent and other charges required under the terms 

of the” lease and “for vacating and abandoning the premises” in violation of the 

agreement. Aterra initiated this lawsuit a few months later. It brought suit against

Crazy Chicken, Anders, Nabity, Dawnielle, and Kenneth, alleging Crazy Chicken 

5 This addendum provided a period of rent abatement due to the COVID-19 

pandemic and added four months to the term of the lease. Otherwise, “[e]xcept as 

modified by the terms of [the] Amendment, the Lease and all terms and conditions 

contained therein . . . remain[ed] in full force and effect.” 
5

breached the lease agreement and Anders, Nabity, Dawnielle, and Kenneth each 

breached their personal guaranties of the lease. 

Anders moved for summary judgment, arguing his 2005 guaranty of the 

lease agreement was not enforceable because (1) the previous owners of the 

shopping plaza—Aterra’s predecessor in interest—abandoned his guaranty and 

accepted others in its place and (2) Aterra was barred from recovery under the 

doctrine of accord and satisfaction. Anders acknowledged he did not have a formal 

written release but asserted that the first addendum to the lease established that 

Mandelbaum accepted the new guaranties from Crazy Chicken’s remaining 

members in place of Anders’s personal guaranty. 

Aterra resisted. It highlighted the language from Anders’s personal 

guaranty stating that it “shall remain in full force and effect as to any renewal or 

extension of the Lease and regardless of any modification or amendment of the 

Lease.” Additionally, Aterra attacked the evidence Anders offered to support his 

motion for summary judgment, arguing that his “sole support for each one of his 

arguments is inadmissible hearsay. Anders submits a self-serving affidavit signed 

by him in which he avers that the agent for the predecessor landlord, John 

Mandelbaum, allegedly told him that his Guaranty was discharged. This hearsay 

is inadmissible for purposes of summary judgment.” Aterra asserted that Anders, 

who had the burden to show his guaranty was abandoned or discharged by accord 

and satisfaction, could not establish his claims as a matter of law—he needed facts 

to demonstrate that the guaranty was relinquished or discharged, and those facts 

were under dispute. 
6

Aterra moved for summary judgment against Anders, Nabity, and 

Kenneth—the remaining defendants; the court already entered default judgment 

against Dawnielle and Crazy Chicken in February 2021. 

The court granted Aterra’s motion for summary judgment as to both Nabity 

and Kenneth and entered judgment against them jointly and severally in the 

amount of $144,666.84. But it denied Anders’s and Aterra’s cross-motions for 

summary judgment, concluding there were genuine issues of material facts that 

needed to be resolved by a factfinder in a trial. The court ruled in part:

[T]he court is disinclined to conclude at this stage of the proceedings 

that the issue of whether Anders’ continuing guaranty was either 

revoked, terminated or abandoned can be ruled upon as a matter of 

law. Of particular importance to the court is why only Anders was 

one of four principals within Crazy Chicken to be required to execute 

a personal guaranty in 2005 and why the landlord referenced the 

need for the other principals to execute a guaranty when the lease 

was extended in 2010. In this regard, the court disagrees with 

Anders’ position that the language contained within the first 

addendum renders the terms of his guaranty to be ambiguous and 

as such subject to an interpretation in his favor. The language used 

in both the 2005 lease and 2010 addendum is not ambiguous; 

however, the parties’ differing versions of the underlying events raise 

issues of credibility which can only be resolved by the trier of fact in 

a trial.

(Footnote omitted).

The case was tried to the bench in February 2022. Mandelbaum was 

unavailable to testify due to a medical condition that affected his memory. See 

Iowa R. Evid. 5.804(a)(4). But Debra Lawrence, who worked for Mandelbaum’s 

company and shared an office with Mandelbaum from 1999 until 2018, testified. 

Lawrence remembered that Anders “wanted to be released from the lease.” 

Although she could not say when it occurred, Lawrence witnessed a conversation 

between Anders and Mandelbaum that took place in the office sometime before 
7

the first addendum was executed. In that conversation, Anders was “confirming 

that he would be released from the lease, that he was no longer going to be an 

active participant in [Crazy Chicken], and he was selling it to the [other] partners.” 

And as a result of that conversation, Mandelbaum created the first addendum to 

the release to address Anders’s request. But Lawrence would not agree that the 

discussion was about “releasing [Anders] from his obligations”; she reiterated that 

what she recalled was that the conversation centered on Anders wanting “off the 

lease.” According to Lawrence, in Mandelbaum’s usual practice, Crazy Chicken’s 

2010 written request to exercise the option to renew would have been sufficient to 

renew the lease—no addendum was necessary.6 But the first addendum to the 

lease was drafted at least in part because of Anders’s request. And the personal 

guaranty that Nabity provided7in 2010 in accordance with the first addendum to 

the lease stated “the Landlord is unwilling to enter into the Lease renewal unless 

the Guarantors executed and deliver this Guaranty.” In other words, the renewal 

of the lease in 2010 was conditioned on the remaining Crazy Chicken members 

agreeing to execute personal guaranties. 

6 At oral argument, Anders referenced an affidavit of Lawrence that he believed 

supported his position. But we find the November 1, 2021 affidavit, which is part 

of the record, is not inconsistent with Lawrence’s trial testimony as the affidavit 

states, “It was also [Mandelbaum’s] business practice not to release individuals 

from personal guaranties and, if it was done, the release would be in writing and 

would specifically state that the guarantor is being released from the obligations of 

the personal guaranty.”

7 Kenneth and Dawnielle were also supposed to provide personal guaranties under 

the terms of the first addendum to the lease. However, as became clear during 

the current legal proceedings, neither ever did so. Nabity was the only member 

who followed through on the requirement. 
8

On cross-examination, Lawrence testified that Mandelbaum’s “standard 

business practice . . . was to hold all guaranties regardless whether they—he let 

them out of the lease.” When asked if she could repeat her testimony, Lawrence 

stated, “[Mandelbaum] would maintain the personal guaranties regardless of 

whether that person was signing the lease or not.” As far as she knew, 

Mandelbaum had not ever released anyone from their personal guaranty. 

Lawrence testified that she “did not hear [the phrase ‘personal guaranty’] during 

that conversation” she overheard between Lawrence and Mandelbaum. Lawrence 

sent documents for the shopping center to Aterra during its due-diligence period 

before the company purchased the property; Anders’s personal guaranty was 

included in those documents, and she did not tell Aterra that Anders’s guaranty 

was no longer in force. 

Anders testified in his own defense. He claimed he wanted to be taken off 

the lease once he sold his interest in Crazy Chicken in 2007. When that did not 

occur, Anders followed up with Mandelbaum in early 2010—as the renewal period 

was approaching. Anders had an attorney provide Mandelbaum proof of the 

ownership structure of Crazy Chicken. And, based on Anders’s conversations with 

Mandelbaum, Mandelbaum prepared the first addendum to the lease. Anders 

testified he saw the first addendum to the lease in Mandelbaum’s office before it 

was executed; he went to Mandelbaum’s office to obtain the proof he needed for 

his bank that he had been released from his personal guaranty. The following 

exchange took place during direct examination of Anders:

Q. What was—what did you ask of Mr. Mandelbaum when you 

went to his office? A. In 2010?
9

Q. Yes, in 2010. A. I wanted proof I was off the lease. Or off 

the Guaranty. And he said . . . . He said he would have to get the 

three signatures for them to even sign, renew that lease, in order to 

get me off. So he was putting on them three and taking me off is 

what was discussed.

Q. Okay. So the discussion you had with Mr. Mandelbaum 

when you requested to be removed as a guarantor of the lease, was 

Mr. Mandelbaum’s response was he was going to require that Ken 

Beister, Dawnielle Beister, and Collin Nabity Guaranty the lease? 

You have to answer orally. A. Personal Guaranty, yes.

Q. Did he say that would be a condition of the renewal of the 

lease? A. Yes.

Q. Did he also provide you with a copy of the Guaranty that 

he had drafted to be signed? A. Yes.

. . . .

Q. So you saw the Guaranty that he prepared that ultimately 

Collin Nabity signed? A. Yes.

Q. And as a result of that conversation, did he agree to release 

you from the Guaranty? A. Yes.

Anders testified Mandelbaum told him his position on guaranties was that he “didn’t 

let people off, [but] that he would make an exception for [Anders] since [he] wasn’t 

with the company at all.” Anders also testified he gave the first addendum to the 

lease and the guaranty Nabity ultimately signed to his banker as evidence of his 

release from his personal guaranty. On cross-examination, Anders admitted there

was not any language in the first addendum to the lease specifically stating that he 

was released from his person guaranty. And that was true in spite of Anders’s

assertion that the first addendum was drafted as a result of his request to be 

released from his guaranty and that he read through the drafted addendum before 

it was executed—Anders never insisted on explicit language about being released 

from the guaranty. Additionally, Anders was never given a separate, formal 

release from the guaranty. And the letter Anders had an attorney send to 

Mandelbaum in 2010 showing the ownership interests of Crazy Chicken did not 

state Anders’s request to be released from the guaranty. Anders eventually 
10

agreed that he did not “have any documentation, whether it’s communication, emails, notes, nothing that states that either [he was] requesting to be released from 

[his] personal Guaranty or that the landlord ha[d] released [him] from [his] personal 

Guaranty.” 

The district court filed its written ruling on March 16, 2022. It concluded 

Anders’s 2005 personal guaranty was a continuing guaranty, which meant that it 

remained valid until revoked or terminated by some rule of law. Because a 

continuing guaranty does not automatically terminate when the guarantor 

relinquishes ownership or interest in the business the personal guaranty benefits,

whether Anders’s guaranty had been revoked depended on Anders’s and 

Mandelbaum’s “intent after Anders no longer was an owner of Crazy Chicken and 

the first addendum was executed in 2010.” In deciding between the two competing 

version of facts—whether Mandelbaum made an exception and released Anders 

from his guaranty or no release ever took place—the court noted it was “highly 

skeptical” of Anders’s testimony that Mandelbaum made an exception for Anders 

because “there is absolutely no evidentiary support to corroborate these 

statements.” The court stated that, “as best as [it could] tell, Anders’ version of the 

Mandelbaum conversation regarding the aforementioned ‘exception’ was never 

disclosed by Anders prior to trial in any discovery response, nor was it specified in 

his affidavit supporting his resistance to [Aterra’s] motion for summary judgment.” 

Ultimately, the court ruled that

Anders’ unsupported eleventh-hour self-serving attribution to

Mandelbaum [was] considerably lacking in credibility, in light of the 

considerable evidence to the contrary. The guaranty itself clearly 

indicates that it shall continue despite any waiver or forbearance on 

the part of the landlord. Lawrence provided credible testimony 
11

regarding Mandelbaum’s practice regarding the continuation of

guaranties, as well as her own firsthand knowledge from overhearing 

Mandelbaum and Anders speak, at which time the only focus was 

Anders’ liability under the lease, not the guaranty.

Because the changed circumstances of Anders’s business relationships did not 

result in termination of his personal guaranty as a matter of law and because the 

credible evidence did not establish that Mandelbaum released Anders from his 

guaranty, Anders’s guaranty was enforceable, which made Anders liable for Crazy 

Chicken’s default under the lease agreement. The court entered judgment against 

Anders jointly and severally with the other defendants in the amount of 

$144,666.84. The court also ruled that Aterra could request attorney fees and 

expenses from the defendants. 

Anders filed a motion under Iowa Rule of Civil Procedure 1.904(2), asking 

the court to reconsider, amend, and enlarge its ruling. The district court denied the 

motion on April 13.

In the meantime, on April 5, Aterra applied for $108,169.808in attorney fees 

and $1825.30 in costs. Anders resisted, arguing the case was not complicated 

and the amount of attorney fees requested was not reasonable. Anders pointed 

to certain entries he asserted were duplicative and also claimed Aterra’s counsels’

work was excessive. The court scheduled a hearing on the fee application for a 

later date.

Then, on May 6, Anders filed notice of appeal.

8 We take this amount from the court’s ruling on the application; the original 

application—filed before a contested hearing on this matter—indicated a request 

of $106,344.50.
12

The hearing on Aterra’s request for fees took place on May 27.9 In a written 

ruling filed June 7, the court stated that Anders did “not dispute the reasonableness 

of the hourly rates charged by counsel and support staff, nor [does he] dispute the 

requested costs in the amount of $1825.30.” The court rejected Anders’s

contention that this was not a complex case, noting there were a number of 

defendants and the question of each person’s individual liability depended on 

various legal issues, which became quite involved. Additionally, “the parties 

underwent extensive motion practice, including a pre-answer motion to dismiss 

and cross-motions for summary judgment, with numerous resistances, replies and 

sur-replies.” Still, the court adjusted three specific time entries, totaling $4527.00,

by which the court reduced the requested fee award. The court entered judgment 

of $103,642.80 in favor of Aterra and against Anders, Nabity, and Kenneth jointly 

and severally.

Anders did not file a second notice of appeal following the attorney-fee 

ruling.

II. Standard of Review.

The case was tried to the bench at law. See Burton E. Tracy & Co. v. Frink, 

520 N.W.2d 316, 318 (Iowa Ct. App. 1994) (“Generally, an action of contract is at 

law.”); see also Bacon v. Bacon, 567 N.W.2d 414, 417 (Iowa 2017) (providing that 

the case is tried as a law action when the district court rules on objections as they 

are made). “We review the judgment of a district court following a bench trial in a 

law action for correction of errors at law.” Chrysler Fin. Co. v. Bergstrom, 703 

9 This hearing was reported, but we do not have a transcript of the proceeding.
13

N.W.2d 415, 418 (Iowa 2005). “The district court’s findings of fact have the force 

of a special verdict and are binding on us if supported by substantial evidence.” 

Id. “In determining whether substantial evidence exists, we view the evidence in 

the light most favorable to the district court’s judgment.” Id. 

III. Discussion.

A. Whether Anders’s Guaranty Remains Enforceable.

“A guaranty is a contract by one party to another party for the fulfillment of 

the promise of a third party.” Great S. Bank v. Riveradio, L.L.C., No. 11-1500, 

2012 WL 1440227, at *1 (Iowa Ct. App. Apr. 25, 2012) (citing City of Davenport v. 

Shewry Corp., 674 N.W.2d 79, 86 (Iowa 2004)). So, the rules and principles that 

apply to contracts apply to guaranties. See Andrew v. Austin, 232 N.W. 79, 81 

(Iowa 1930) (“The same rule is to be applied in the construction of contracts of 

guaranty as other contracts.”). 

As the district court determined, the personal guaranty Anders gave in 2005 

was a continuing guaranty. See Maresh Sheet Metal Works v. N.R.G., Ltd., 304 

N.W.2d 436, 440 (Iowa 1981) (providing a guaranty “is continuing if it contemplates 

a future course of dealing over an indefinite period”). While a “restricted guaranty” 

is one “limited to a single transaction or a limited number of specific transactions,”

“[a] continuing guaranty remains valid until revoked or terminated by some rule of 

law.” Id. No one disputes that the 2005 personal guaranty was a valid contract at 

the time Anders and Mandelbaum executed it. The question is whether it was still 

enforceable in 2020 when Aterra sought to enforce it; Anders offers several 

theories why his guaranty is no longer valid. 
14

1. Abandoned by Predecessor in Interest.

First, Anders argues the guaranty is no longer enforceable because Aterra’s 

predecessor in interest—the previous owners of the shopping center—abandoned 

the guaranty. 

Parties to a valid contract may choose to abandon it. See Severson v. 

Elberon Elevator, Inc., 250 N.W.2d 417, 421 (Iowa 1977) (“[P]arties to a valid 

contract may rescind or abandon it . . . .”). And, once abandoned, the contract is 

no longer enforceable. Henderson v. Beatty, 99 N.W. 716, 718 (Iowa 1904) (“It is 

well settled that, where either party has . . . agreed to abandon or rescind such a 

contract, and this is acquiesced in, he may not thereafter maintain an action for its 

enforcement.”). “Abandonment of a valid contract may be accomplished by 

express agreement of the parties . . . .” Iowa Glass Depot, Inc. v. Jindrich, 338 

N.W.2d 376, 380 (Iowa 1983). And that agreement to abandon “may be evidenced 

by both words and conduct.” Severson, 250 N.W.2d. at 421–22. Anders, as the 

party asserting the contract was abandoned, has the burden to prove it. See id. at 

421. 

As he did to the district court, Anders asserts that he spoke with 

Mandelbaum and voiced his request to be released from the obligations of the 

personal guaranty. He claims that Mandelbaum agreed to give up Anders’s

guaranty and, as a result of that decision, executed the first addendum to the lease, 

in which three Crazy Chicken members pledged their own personal guaranties. 
15

These facts, if true, are enough to find the personal guaranty was abandoned by 

Aterra’s predecessor in interest.10

But whether Mandelbaum intended to release Anders from his personal 

guaranty is a fact question. See Ward v. Inc. Town of Clover Hills, 38 N.W.2d 109, 

112 (Iowa 1949) (“Abandonment is the intentional relinquishment of a known right. 

It involves both intent and some act by which the intent is carried into effect.”); see 

also Ball v. Williams, 93 N.W.2d 723, 727 (Iowa 1958) (“[A]bandonment is a 

question of fact.” (citation omitted)). And the district court found Mandelbaum did 

not agree to abandon Anders’s guaranty, noting the only evidence of it was 

Anders’s testimony, which came at the “eleventh hour” and was “self-serving.” The 

court’s finding that Anders’s testimony was “considerably lacking in credibility” 

combined with the lack of other evidence hamstrings Anders’s chances on appeal, 

as “[w]e are especially deferential to the district court’s assessment of witness 

credibility.” Johnson v. Kaster, 637 N.W.2d 174, 178 (Iowa 2001) (citation 

omitted).

11

 

Anders urges us to rely on the fact that the first addendum to the lease was 

created—with its requirement of three new personal guaranties—as other 

evidence of Mandelbaum’s assent to the abandonment of Anders’s guaranty. But, 

like the district court, we are not convinced that the mere existence of the first 

addendum to the lease shows Mandelbaum’s intent to abandon Anders’s personal 

10 It is undisputed that Mandelbaum had the authority to release Anders from the 

contract of guaranty. 

11 In contrast, the district court found Lawrence “provided credible testimony 

regarding Mandelbaum’s practice regarding the continuation of guaranties, as well 

as her own firsthand knowledge from overhearing Mandelbaum and Anders speak, 

at which time the only focus was Anders’ liability under the lease, not the guaranty.” 
16

guaranty. It is possible Mandelbaum wanted personal guaranties to replace

Anders’s, which Mandelbaum had decided to abandon, but it is just as possible 

that Mandelbaum wanted additional security to shore up the landlord’s chances at 

recovery should Crazy Chicken default. Cf. Brenton Bank & Tr. Co. v. Beisner,

268 N.W.2d 196, 198 (Iowa 1978) (“We note at the outset that the bank’s 

possession of other collateral would not relieve [the guarantor] or his personal 

representative on the guaranty.”); see also 38 Am. Jur. 2d Guaranty § 85 (1968)

(“The fact that the creditor, in order to insure payment of the debt which is due him, 

has taken additional security therefor does not have the effect of releasing or 

discharging the guarantor of liability on his contract of guaranty.”). “Evidence is 

not insubstantial merely because it would have supported contrary inferences.” 

Norland v. Iowa Dep’t of Job Serv., 412 N.W.2d 904, 913 (Iowa 1987) (citation 

omitted). And “we construe the evidence broadly to uphold, rather than defeat, the 

trial court’s judgment.” Grall v. Meyer, 173 N.W.2d 61, 62 (Iowa 1969); see also 

Etchen v. Holiday Rambler Corp., 574 N.W.2d 355, 359 (Iowa Ct. App. 1997) (“The 

question an appellate court faces is not whether the evidence might support a 

different finding, but whether the evidence supports the findings actually made.”).

Substantial evidence supports the district court’s finding that there was not 

an express agreement between Mandelbaum and Anders to abandon Anders’s

personal guaranty. 

2. Accord and Satisfaction.

Next, Anders claims his personal guaranty cannot be enforced because it 

was discharged through accord and satisfaction. “Accord and satisfaction is a 

means of discharging a contractual obligation by agreement of the parties to render 
17

and accept a different and substituted performance as full satisfaction of the 

preexisting claim.” DuTrac Cmty. Credit Union v. Hefel, 893 N.W.2d 282, 290 

(Iowa 2017). It is “[a] new contract substituted for an old contract, which is thereby 

discharged, or for an obligation or cause of action which is settled.” Kellogg v. 

Iowa State Traveling Men’s Ass’n, 29 N.W.2d 559, 567 (Iowa 1947). And it is 

Anders “who has the burden of establishing the defense of accord and 

satisfaction.” DuTrac, 893 N.W.2d at 290.

For there to have been an accord and satisfaction, Mandelbaum had to

understand that he was taking the new personal guaranties in place of Anders’s

guaranty.12 See Robinson v. Norwest Bank, 434 N.W.2d 128, 130 (Iowa Ct. App. 

1988) (“There can be no accord and satisfaction unless the creditor, or party 

receiving the thing or promise offered, understands, or from the circumstances of 

the offer, or the acts or declarations with which it is accompanied, is bound to 

understand, that he takes it in full satisfaction of his claim.”). In other words, 

whether an accord and satisfaction occurred rests on whether Mandelbaum 

intended to accept the new guaranties in place of Anders’s. See id. (“Whether 

there is accord and satisfaction ordinarily involves a pure question of intention.”). 

Anders’s only support for this claim is a blanket assertion that the facts are 

different than the district court found them to be, stating: “The facts establish 

Aterra’s predecessor in interest released Anders and accepted three new 

guaranties, and in doing so, discharged Anders’ guaranty.” But, as with his claim 

12 We ignore that Mandelbaum never actually got three personal guaranties; while 

Kenneth, Dawnielle, and Nabity each pledged one as part of the first addendum to 

the lease, only Nabity signed and returned his. 
18

about abandonment, Anders relies on his testimony, which the district court did not 

credit. The district court was persuaded that Mandelbaum did not intend to release 

Anders; instead, Mandelbaum stuck with his general policy of holding each person 

to their guaranty, irrespective of whether that person left the business or got off the 

lease. “Our task is not to weigh the evidence or the credibility of the witnesses. 

Rather, our task is to determine whether substantial evidence supports the district 

court’s findings according to those witnesses whom the court believed.” Tim 

O’Neill Chevrolet, Inc. v. Forristall, 551 N.W.2d 611, 614 (Iowa 1996) (internal 

citation omitted). Substantial evidence supports the district court’s conclusion that 

an accord and satisfaction did not take place. 

3. Waived by Aterra.

Finally, Anders argues Aterra’s predecessor in interest abandoned his 

personal guaranty and, because Aterra had notice of that fact, he is no longer liable 

for it. He relies on Beal Bank v. Siems, 670 N.W.2d 119, 127–28 (Iowa 2003). But 

as Aterra correctly points out, this argument is premised on the conclusion that 

Mandelbaum—acting for the predecessor in interest—abandoned Anders’s

personal guaranty. Yet the district court found, and we affirm, that Mandelbaum 

did not abandon the guaranty. So this claim also fails. 

B. Attorney Fees. 

Anders challenges the district court’s award of attorney fees to Aterra, 

arguing the amount awarded was excessive.13 However, Anders’s failure to file a 

13 Anders does not contest that the lease agreement allowed for the prevailing 

party in a judicial contest to recover reasonable attorney fees from the other party. 

See Iowa Code § 625.22 (2020) (“When judgment is recovered upon a written 
19

second appeal after the entry of judgment on the attorney fees award means we 

are without jurisdiction to consider this issue. See Iowa R. App. P. 6.103(2) (“A

final order or judgment on an application for attorney fees entered after the final 

order or judgment in the underlying action is separately appealable. The district 

court retains jurisdiction to consider an application for attorney fees 

notwithstanding the appeal of a final order or judgment in the action. If the final 

order or judgment in the underlying case is also appealed, the party appealing the 

attorney fee order or judgment shall file a motion to consolidate the two appeals.” 

(emphasis added)); see also Iowa State Bank & Tr. Co. v. Michel, 683 N.W.2d 95, 

110 (Iowa 2004) (“Because the matter of attorney fees is a collateral issue and 

was decided after the defendants had appealed the court’s ruling on the merits of 

the lawsuit, the defendants were required to separately appeal the award of 

attorney fees to bring that matter before us for review. Since the [defendants] 

failed to do so, we may not consider the district court’s attorney fee award on 

appeal.” (emphasis added)). 

IV. Conclusion.

Because Anders’s personal guaranty is still enforceable, we affirm the 

district court’s ruling and judgment against him. We do not consider his challenge 

to the award of attorney fees, as he failed to appeal that judgment. 

AFFIRMED. 

contract containing an agreement to pay an attorney fee, the court shall allow and 

tax as a part of the costs a reasonable attorney fee to be determined by the court.”).