IN THE COURT OF APPEALS OF IOWA

No. 15-0675

Filed February 24, 2016

PHILLIP L. LUBBERS, TRUSTEE

OF THE PHILLIP L. LUBBERS

LIVING TRUST,

Plaintiff-Appellant, 

vs. 

MDM PORK, INC., AN IOWA

CORPORATION, GALEN MARS,

LYLE MARS, and RODNEY DEBOER,

Defendants-Appellees.

________________________________________________________________

Appeal from the Iowa District Court for Sioux County, Jeffrey L. Poulson, 

Judge. 

The Phillip L. Lubbers Living Trust appeals the district court’s grant of 

summary judgment to MDM Pork, Inc. REVERSED AND REMANDED. 

William K. Klinker of Smith, Grigg, Shea & Klinker, P.C., Primghar, for 

appellant.

Jeff W. Wright and Joel D. Vos of Heidman Law Firm, L.L.P., Sioux City, 

for appellees.

Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.
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BOWER, Judge.

The Phillip L. Lubbers Living Trust (Trust) appeals the district court’s grant 

of summary judgment to MDM Pork, Inc (MDM). The Trust claims the district 

court erred in determining the parol evidence rule prohibited the introduction of 

an oral contract concerning the disposal of manure, in ruling the written contract 

does not contain an enforceable agreement concerning the manure, and in ruling 

insufficient facts existed to establish fraudulent misrepresentation. 

I. BACKGROUND FACTS AND PROCEEDINGS

Ray Lubbers was the owner of eighty acres of farm ground located in 

Sioux County, Iowa. MDM was a corporation owned by Galen Mars, Lyle Mars,

and Rodney De Boer, and was in the business of raising hogs. In 2007, MDM 

decided to build a hog confinement facility in Sioux County. Mars contacted Paul 

Lubbers, Ray Lubbers’s son, about purchasing some land to use for the facility. 

Paul acted on behalf of Ray during the negotiation and sale. 

The parties executed a Real Estate Purchase Agreement, prepared by 

Mars, on July 13, 2007. The agreement provided, in relevant part:

A. Seller is the owner of the following legally described property 

situated in: approx. 1/2 acres in the N/E corner of the North 1/2 of 

the S/E 1/4 of Section 11 in HOLLAND Twp., DT-95-N, R-44-W, 

Sioux County, Ia.

Subject only to easements, restrictions and covenants of 

record (collectively referred to as the “Property”);

B. Buyer desires to purchase from Seller and Seller desires to 

sell to Buyer the Property;

C. Buyer and Seller desire to enter into a manure spreading 

easement over the agreed upon easement (separate agreement 

between Seller and Buyer); and

D. Buyer and Seller desire to set forth the obligations, 

restrictions, limitations, and conditions upon which the Property will 

be conveyed by Seller to Buyer. 
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. . . . 

1. Sale of Property. Seller agrees to sell and convey to Buyer, 

and Buyer agrees to purchase from Seller, for the Purchase Price 

set forth below and on the terms and conditions set forth in this 

Agreement, the Property. For purposes of this Agreement, 

Property shall be deemed to mean, on a collective basis: (a) the 

parcel of land described above (the “Land”), together with all rights, 

easements and interests appurtenant thereto; (b) all improvements 

located on the Land, if any.

2. Purchase Price. Seller, in consideration of the mutual 

covenants and agreements contained herein, agrees to sell to 

Buyer and Buyer, in consideration of the mutual covenants and 

agreements contained herein, agrees to purchase the Property 

from Seller and provide the necessary manure easement for the 

sum of 6000 per acre excluding any right-of-way as confirmed by 

the survey (the “Purchase Price”). The Purchase Price shall be 

paid by Buyer to Seller, in good and immediately available funds by 

wire transfer or cashier’s check, at the time of Closing.

. . . . 

22. Entire Agreement. This Agreement contains the entire 

agreement between the parties regarding the Property and 

supersedes all prior agreements, whether written or oral, between 

the parties regarding the same subject. This Agreement may only 

be modified by subsequent written agreement signed by the party 

to be charged.

The real estate closing occurred in August 2007. MDM paid $15,000 

($6000 per acre) and received a warranty deed for the 2.5 acre parcel; the deed 

was recorded that same month. MDM then constructed a hog confinement

facility, which was completed in early 2008. Ray rented the remainder of the 

eighty acres, adjoining the hog confinement, to his son Paul. After Ray’s death, 

this property was conveyed to Ray’s children and ultimately placed in the Phillip 

L. Lubbers living trust. 

From 2008 through 2011, pursuant to an oral agreement between Paul 

and MDM, Paul received the manure produced by the hog confinement at no 

cost. 
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In 2012, the members of MDM decided to dissolve the corporation and sell 

its assets including the land and hog confinement facility. MDM first offered the 

property to Paul, who declined. MDM then sold the property to Randy Winterfeld. 

The real estate contract between MDM and Winterfeld contained an addendum 

stating: “Buyer [Winterfeld] understands for the remainder of 2012 Paul Lubbers 

is entitled to the manure in the hog facility located on the property and buyer 

agrees to provide Paul Lubbers reasonable access to retrieve the manure.” 

Winterfeld allowed Paul to remove the manure in 2012 without payment. In 

2013, Winterfeld no longer allowed Paul to pump manure from the facility without 

payment. 

The Trust filed the present suit in November 2013 claiming MDM 

breached the Real Estate Purchase Agreement, MDM breached its oral contract 

to provide an easement for manure access, and MDM made a fraudulent 

representation. MDM filed a motion for summary judgment asking the district 

court to dismiss the Trust’s petition. The district court entered an order granting 

summary judgment on the written real estate agreement and fraudulent 

misrepresentation claims. On March 19, 2015, the court overruled MDM’s 

motion on the oral contract claim. The court reasoned: 

Here, Plaintiff has alleged facts that would be sufficient to 

allow a factfinder to find that the parties partly performed an 

easement to which they had orally agreed. It is undisputed that

MDM supplied manure to Plaintiff between 2008 and 2012. . . .

From this, a factfinder could conclude that Defendant had granted

Plaintiff an easement to obtain manure from the hog confinement 

on Defendants’ property (i.e., Plaintiff would have the dominant 

estate and Defendants would have the servient estate). The

factfinder could also conclude that “the vendee [i.e., Plaintiff], with 

the actual or implied consent of the vendor [i.e., Defendants], has 
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taken and held possession of the premises under and by virtue of 

the contract . . . .” Iowa Code § 622.33.5 [(2013)]. Plaintiff’s 

easement thus falls within the part performance exception to the 

statute of frauds; section 622.32 will not bar evidence of such an

oral agreement.

Additionally, a factfinder could conclude that such an 

easement was to last for the life of the hog confinement facility. 

Plaintiff sold roughly 2.5 acres of Sioux County farm land to the

Defendants for the price of $6,000 an acre. A factfinder could 

conclude that this is a low price for Sioux County farm land, 

implying that Defendants would be giving Plaintiffs some additional

consideration for the deal, in the form of a manure easement. The 

Real Estate Purchase Agreement expressly allowed for the creation 

of such an agreement, since it stated that “Buyer and Seller desire 

to enter into a manure spreading easement over the agreed upon 

easement (separate agreement between Seller and Buyer); . . . .”

Subsequently, MDM filed a motion in limine (its second) requesting the 

exclusion of all evidence relating to the oral contract concerning the easement 

due to the integration clause in the Real Estate Purchase Agreement. MDM also 

claimed the Trust’s requested damages were speculative. MDM also filed a 

motion for further findings and reconsideration of the summary judgment ruling. 

After a hearing on the merits, the district court entered an amended order

granting the motion for summary judgment. The court noted its previous 

misunderstanding of the Trust’s claim: “The Court now finds that Plaintiff is not, in 

fact, arguing that he had this kind of an easement arrangement. Rather, Plaintiff 

argues that he and Defendants entered into an oral contract (not an easement) to 

supply Plaintiff with manure for the life of the facility.” The court found the statute 

of frauds did not bar evidence of the alleged oral agreement. However, the court 

found the real estate purchase agreement between MDM and the Trust was a 

fully integrated contract and therefore the Trust was barred from presenting 

evidence of a prior or contemporaneous manure agreement. 
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The Trust appeals. 

II. STANDARD OF REVIEW

We review rulings on motions for summary judgment for the correction of 

errors at law. City of Cedar Rapids v. James Props., Inc., 701 N.W.2d 673, 675 

(Iowa 2005). “Summary judgment is appropriate only when the entire record 

demonstrates that no genuine issue of material fact exists and the moving party 

is entitled to judgment as a matter of law.” Stevens v. Iowa Newspapers, Inc.,

728 N.W.2d 823, 827 (Iowa 2007). A genuine issue of material fact exists if 

reasonable minds can differ on how an issue should be resolved. Seneca Waste

Sols., Inc. v. Sheaffer Mfg. Co., 791 N.W.2d 407, 411 (Iowa 2010). We examine 

the record in the light most favorable to the nonmoving party and draw all 

legitimate inferences the evidence bears in order to establish the existence of 

questions of fact. Mason v. Vision Iowa Bd., 700 N.W.2d 349, 353 (Iowa 2005). 

“A party resisting a motion for summary judgment cannot rely on the mere 

assertions in [her] pleadings but must come forward with evidence to 

demonstrate that a genuine issue of fact is presented.” Stevens, 728 N.W.2d at 

827.

III. MERITS

A. Oral Contract

The Trust claims the Real Estate Purchase Agreement provided a

separate oral arrangement regarding the manure. This oral agreement was 

conceived prior to, and at the time of, the creation of the real estate contract and 

the agreement granted the Trust the right to the manure from the confinement
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facility. The Trust notes circumstantial and extrinsic evidence demonstrates the 

integration clause in the real estate purchase agreement was not meant to be a 

complete expression of the agreement between the parties. 

“When an agreement is fully integrated, the parol-evidence rule forbids the 

use of extrinsic evidence introduced solely to vary, add to, or subtract from the 

agreement.” C & J Vantage Leasing Co. v. Wolfe, 795 N.W.2d 65, 85 (Iowa 

2011). An agreement is fully integrated “when the parties adopt a writing or 

writings as the final and complete expression of their agreement.” Id. The 

presence of an integration clause, while considered, is only one factor used in 

determining if the contract is integrated. See id. “[E]xtrinsic evidence may be 

admitted to show that a writing is not an integrated agreement, not completely 

clear and unambiguous as to the subject in dispute, or ambiguous with respect to 

the subject of the lawsuit.” Kroblin v. RDR Motels, Inc., 347 N.W.2d 430, 433 

(Iowa 1984). 

However, the parol-evidence rule “does not come into play until by 

interpretation the meaning of the writing is ascertained, and, as an aid to 

interpretation, extrinsic evidence is admissible which sheds light on the situation 

of the parties, antecedent negotiations, attendant circumstances, and the objects 

the parties were striving to attain.” Hamilton v. Wosepka, 154 N.W.2d 164, 168 

(Iowa 1967). The parol evidence rule should not be invoked to prevent a litigant 

the chance to prove a writing does not, in fact, represent what the parties 

understood to be their agreement. First Interstate Equip. Leasing of Iowa, Inc. v. 

Fielder, 449 N.W.2d 100, 103 (Iowa Ct. App. 1989).
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Although the Real Estate Purchase Agreement contained an integration 

clause, given ambiguity in that agreement, the Trust should not be barred from 

introducing evidence concerning the oral agreement for the purpose of 

demonstrating the Real Estate Purchase Agreement was representative of the 

parties’ agreement. Based on the parties’ past conduct (MDM allowing the 

manure to be removed for years at no cost), evidence of other agreements not 

included in the purchase agreement (attorney fees and surveyor fees), MDM’s 

representatives’ claimed lack of knowledge on why Paul was allowed to remove 

manure for years at no cost, and the ambiguous manure easement language in 

the purchase agreement, we believe material questions of fact exist regarding 

the oral agreement between the parties. We find MDM’s motion for summary 

judgment on the alleged oral contract was improperly granted.

B. Written Manure Agreement

The Trust claims the district court erred in ruling the purchase agreement 

did not contain an enforceable contract regarding the manure from the facility. 

The Trust claims the language in the agreement requiring MDM to “purchase the 

property from the seller and provide the necessary manure easement” meant 

MDM had to furnish the Trust with a manure easement. 

The district court found the references in the contract were merely an 

“agreement to form an agreement regarding the manure” and were not 

enforceable. The court reasoned: 

[T]he Real Estate Purchase Agreement cannot be said to contain 

anything more than an agreement to agree. Recital “C,” for 

example, provides that “Buyer and Seller desire to enter into a 

manure spreading easement over the agreed upon easement 
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(separate agreement between Seller and Buyer); . . . .”). This 

language implies that the parties wanted to enter into an agreement 

sometime in the future, i.e., that the parties agreed to make an 

agreement regarding manure. And indeed, nowhere does the Real 

Estate Purchase Agreement establish a duty on the part of 

Defendants to provide manure. The Agreement is thus not an 

enforceable contract for the provision of manure.

We agree with the district court’s reasoning. An agreement to agree to 

enter into a contract is of no effect unless the parties have agreed upon all of the 

terms and conditions of the contract and nothing is left to future negotiation. 

Scott v. Grinnell Mut. Reins. Co., 653 N.W.2d 556, 562 (Iowa 2002). We find the 

district court did not err in granting MDM’s motion on the issue of the written 

contract. 

C. Fraudulent Misrepresentation 

The Trust claims the district court erred in finding it failed to present

sufficient evidence to sustain a claim for fraudulent misrepresentation. 

To sustain a claim for fraudulent misrepresentation, the Trust “has the 

burden of proving the following elements: 1) representation, (2) falsity, (3) 

materiality, (4) scienter, (5) intent to deceive, (6) reliance, and (7) resulting injury 

and damage. These elements must be established by a preponderance of clear, 

satisfactory, and convincing proof.” Van Sickle Constr. Co. v. Wachovia 

Commercial Mortg., Inc., 783 N.W.2d 684, 687 (Iowa 2010) (citations omitted). 

In granting MDM’s motion for this issue, the court reasoned:

Here, the Court has not seen sufficient facts to allow 

Plaintiff’s fraudulent misrepresentation claim to survive a motion for 

summary judgment. Plaintiff has argued that “Defendants 

represented . . . that as part of the consideration for the purpose of 

the acreage site, the seller would receive all manure generated by 

the confinement upon the acreage site for an unlimited period of 
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time.” Plaintiff has additionally stated that “Defendants knew that

said representations were false.” However, Plaintiff has not set 

forth any facts that would allow a factfinder to make such a 

conclusion. The only facts which Plaintiff has set forward would 

allow a factfinder to conclude that Defendants decided to stop 

giving manure to the Plaintiff years after Defendants allegedly 

represented that they would do so: Paul Lubbers contends that 

“Galen Mars did not remind [him] on May 14, 2012, that there was 

no manure easement”; that “MDM Pork was not clear with [him] that 

it wanted to hook [him] up with a new owner” after MDM was 

seeking to sell the confinement; that “nobody ever said anything 

about [his] not receiving the manure” during a meeting held after

Winterfeld was already in the picture; that DeBoer and Mars “told 

[him] they wanted [him] to get the manure” during a 2012 meeting; 

that he “had several conversations with Galen Mars about the 

manure prior and subsequent to the execution of the contract in 

which [he] unequivocably [sic] stated that the sale price for the 2 

1/2 acres of farmland was $6,000.00 per acre plus receipt of the 

manure at no cost”; and that “Galen Mars did approach [him] in 

May of 2011 for payment of $1,000.00 but not for the manure.”

We agree with the district court’s reasoning and find it did not err in 

granting MDM’s motion for summary judgment on the Trust’s fraudulent 

misrepresentation claim. 

IV. CONCLUSION

Because we find a genuine issue of material fact with regard to the Trust’s 

oral contract claim, we reverse the judgment of the district court on the oral 

contract issue and remand the case for further proceedings consistent with this 

opinion. 

REVERSED AND REMANDED.