IN THE COURT OF APPEALS OF IOWA

No. 18-1841

Filed April 29, 2020

ZEN RESTAURANTS LLC,

Plaintiff-Appellee,

vs.

KIRKWOOD COMMONS, LLC,

Defendant-Appellant.

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Appeal from the Iowa District Court for Polk County, Sarah E. Crane, Judge.

Kirkwood Commons, LLC appeals the district court’s entry of declaratory 

judgment in its favor. AFFIRMED.

David Barajas of Macro & Kozlowski, L.L.P., West Des Moines, for 

appellant.

David J. Hellstern of Sullivan & Ward, P.C., West Des Moines, for appellee.

Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
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VAITHESWARAN, Presiding Judge.

Zen Restaurants, LLC (Zen) owned several restaurants in Des Moines, 

Iowa. Zen leased space for two of the restaurants from Kirkwood Commons, LLC

(Kirkwood). Between 2006 and 2015, Zen paid Kirkwood $250 to $350 per month 

in “common area maintenance” (CAM) fees. In 2015, Kirkwood proposed to 

increase the fee to $2500 per month, but it later reduced the sum to $1515.89 per 

month. Zen refused to pay the increased amount.

Zen sued Kirkwood, seeking a declaration that the increase of “577%” was 

“invalid and unenforceable.”1 Following trial, the district court found that an 

addendum to the lease referred to as “Addendum 1” “further detailed the CAM 

charges at issue” and “[t]he parties acted as if Addendum 1 had been signed until 

this dispute arose in 2015.” The court determined “that Addendum 1 [was] an 

agreement between the Parties and part of the Lease.” Applying the lease terms, 

including the terms of Addendum 1, the court increased Zen’s CAM fee from $250 

to $476.11 per month, an amount that was significantly lower than the sum 

Kirkwood requested. Kirkwood appealed. 

Kirkwood contends Addendum 1 was not “mutually accepted by the parties 

and enforceable.” In Kirkwood’s view,

[t]here was no evidence presented at trial showing that Addendum 1 

was ever signed by either [party,] which was a prerequisite to any 

modifications of the lease agreement, and as such it was improper 

for the district court to consider Addendum 1 in making its Findings 

of Fact and Conclusions of Law.

 

1 Zen raised other claims that the court resolved against Zen. The court ruled,

“The narrowing of claims to the declaratory judgment matter is consistent with the 

parties’ post-trial briefs.” Neither party disputes the court’s statement.
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In support of its argument, Kirkwood cites the following lease provision:

Entire Agreement; Amendments. This Lease contains all 

agreements between Landlord and Tenant with respect to any matter 

mentioned herein, and no other prior or contemporaneous agreement 

or understanding shall be effective. . . . No subsequent alterations, 

amendments, changes or additions to this Lease shall be binding 

unless reduced to writing and signed by each party.

(Emphasis added.)

Although Kirkwood did not rely on this integration clause in the district court, 

and the district court did not cite it, Zen agrees error was preserved, and so do we. 

See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental 

doctrine of appellate review that issues must ordinarily be both raised and decided 

by the district court before we will decide them on appeal.”). With or without the 

integration clause, the substance of Kirkwood’s argument was and is that 

Addendum 1 was not signed and, accordingly, was unenforceable. See McKenzie 

v. E. Iowa Tire, Inc., 448 N.W.2d 464, 466 (Iowa 1989) (“We believe the issues 

now before us were tried to the court by consent. . . . McKenzie sufficiently 

preserved his claim of error for appeal.”).

In determining that the parties agreed to Addendum 1, the district court 

made the following findings:

On January 18, 2007, Eric Wolfe, a representative of Kirkwood, sent 

a proposed lease addendum to clarify the formula for the CAM 

charges. This email invited review and reply. (Exhibit 4). On 

February 8, 2007, Eric Wolfe sent another email with an updated 

“final lease addendum.” Wolfe specifically noted that it had been 

“modified per your request.” Wolfe asked [Zen owner] Hutchison to 

sign and noted that he would ensure John Chudy [an owner of 

commercial space at the building] signs. He further stated: “Thanks 

for your help in getting this agreement clarified and reduce[d] to 

writing in a mutually agreeable form. Hopefully this will help to avoid 

any future surprises or disagreements about utility or maintenance 

issues.” (Exhibit 5). The attachment to Exhibit 5 included changes
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proposed by Zen’s attorney modifying the obligations for 

proportionate share of expenses. It is unclear whether that 

addendum was signed in February 2007 or not. On April 9, 2008, 

Steve Grow, a property manager for Kirkwood sent an email 

calculating the expenses in two different ways, one which relied on 

the specific percentages calculated in the Addendum. Grow stated

that Kirkwood would honor the lower amounts as calculated by 

Addendum 1 if Zen would sign and return Addendum 1. (Exhibit 7). 

Hutchison testified that he then signed Addendum 1 and returned it. 

There is no dispute that the Parties applied Addendum 1 for the next 

seven (7) years.

The Court finds that, at a minimum, an agreement on 

Addendum 1 (as set forth in Exhibit 5) was reached in April 2008.

The email from Kirkwood property manager Grow offered to honor 

Addendum 1 if Hutchison signed it. Hutchison testified that he signed 

it, which would constitute acceptance of that offer. The Court finds 

Hutchison’s testimony credible. It is undisputed the Parties acted in 

conformity with Addendum 1 for the next seven (7) years, until this 

dispute developed. Even Kirkwood relies on terms defined in 

Addendum 1 in its efforts to calculate what it calls CAM charges.

(See Worksheet 1 in Exhibit H). John [Chudy] testified that he 

refused to sign Addendum 1. This testimony does not change the 

Court’s determination for two reasons. The Kirkwood property 

manager made an offer to Hutchison to honor Addendum 1. . . . 

Exhibit 7 is an objective offer—Exhibit 5 referred to Addendum 1 as 

the final lease addendum and Exhibit 7 offers to honor it. The Court 

finds the offer was accepted. [Chudy’s] claim that he refused to sign 

because of confusion about the CAM charges is in direct 

contradiction to the actions of the parties for the next seven (7) years. 

The Court finds Addendum 1 is part of the Lease.

Substantial evidence supports the court’s findings and determination. See Metro. 

Prop. & Cas. Ins. Co. v. Auto-Owners Mut. Ins. Co., 924 N.W.2d 833, 839 (Iowa 

2019) (“The district court’s factual findings have the effect of a special verdict and 

are binding on us if supported by substantial evidence.”). 

The integration clause does not alter our conclusion. The district court 

found Hutchison signed Addendum 1, a finding that is supported by substantial 

evidence. The court further found Chudy’s testimony that he did not sign the 

document lacked credibility, a determination that is uniquely within that court’s 
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purview. See City of Cedar Rapids v. Leaf, 923 N.W.2d 184, 196 (Iowa 2018)

(“[W]e give weight to the trial court’s findings of fact, particularly when it comes to 

the credibility of witnesses.”). Accordingly, the integration clause’s requirement 

that “[n]o subsequent alterations, amendments, changes or additions to this Lease 

shall be binding unless reduced to writing and signed by each party” was satisfied. 

We affirm the district court’s findings and conclusions.

AFFIRMED.