Communication Enhancement, LLC v. Kucera et al

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
COMMUNICATION ENHANCEMENT,
LLC,
Plaintiff/Counter Defendant, 	No. C24-73-LTS-KEM
vs.
MEMORANDUM
OPINION AND ORDER	IRMA M. KUCERA, Living Trust, et al.,
Defendants/Counter
Claimants.
I. 	INTRODUCTION
This case is before me on cross-motions for summary judgment. Defendants Irma
M. Kucera Living Trust (the Trust), along with Trustees Natalie Mass and Lorna Perkins
and Richard and Jodi Hopper, have filed a motion (Doc. 53) for summary judgment as
to all claims asserted by plaintiff Communication Enhancement, LLC (Communication
Enhancement). 	Communication Enhancement has filed a resistance (Doc. 56) and
defendants have filed a reply (Doc. 59). 	Communication Enhancement has also filed a
motion (Doc. 54) for partial summary judgment on its claims of breach of contract and
declaratory judgment, along with defendants’ counterclaims. 	Defendants have filed a
resistance (Doc. 57) and Communication Enhancement has filed a reply (Doc. 60). Oral
argument is not necessary. 	See Local Rule 7(c).
II. 	PROCEDURAL HISTORY
On October 4, 2024, Communication Enhancement filed an amended complaint
(Doc. 11) against defendants alleging claims of breach of contract (Count I), intentional
interference with contract (Count II), unjust enrichment (Count III) and declaratory
judgment (Count IV) arising out of the Trust’s alleged failure to honor a contractual right
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of first refusal provision before selling leased real estate to the Hoppers as part of a larger
tract. 	Communication Enhancement asserts federal subject matter jurisdiction under 28
U.S.C. § 1332 based on diversity of citizenship. 	Doc. 11 at 2. 	Defendants filed an
amended answer (Doc. 16) denying the claims, asserting various affirmative defenses and
alleging counterclaims of breach of contract (Count 1), for quiet title (Count 2) and for
declaratory judgment/reformation (Count 3). Trial is scheduled to begin May 26, 2026.
III. 	RELEVANT FACTS
The following facts are undisputed except as noted otherwise. 	Rick Hopper is a
Tama County farmer and was a long-time tenant of Irma Kucera prior to her passing.
Doc. 56-1 at 1. After Kucera’s death, Hopper continued to farm the property, which had
been transferred to the Trust. 	Id. 	The property consists of approximately 110 tillable
acres. Id. at 2. In 2001, engineers performed a survey to identify an appropriate location
for a cell tower and associated access and easements. 	Id. 	The survey identified
approximately 0.6 total acres as the “Lease Area.”
In 2001, Kucera and Richland Telecom Towers A, LLC, entered into a Ground
Lease Agreement for the Lease Area, which was called the Premises, and will be referred
to as such herein. 	The Ground Lease Agreement had an initial term of 15 years and
provided the Lessee with the option to renew for five successive, five-year periods. Doc.
57-1 at 3. The Agreement is currently in the second renewal period. 	Id.
The Ground Lease Agreement grants a right of first refusal to the Lessee1 with
respect to the Premises. 	Id. The right of first refusal provides that if the Trust receives
a bona fide offer to purchase the Premises, the Trust is required to provide written notice
of the offer to the Lessee along with a copy of the fully executed Purchase and Sale
Agreement (the Proposed Contract). 	Id. 	Upon receipt of the Proposed Contract, the
Lessee has 30 days to either exercise its right of first refusal to match the offer contained
1 Communication Enhancement became the Lessee on March 14, 2001. Doc. 57-1 at 2.
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in the Proposed Contract or waive its right of first refusal. 	Id. 	If the Lessee elects to
exercise the right of first refusal, it must provide to the Trust within the 30-day period
an agreement to purchase the Premises upon the same terms and conditions as the
Proposed Contract. 	Id.
When the Trustees decided to sell the farm, they asked Hopper whether he would
be interested in buying it. 	Doc. 56-1 at 3. 	On January 6, 2022, Hopper provided a
written offer of $750,000 to the Trust for the entire property, including the Premises.
The offer provided a deadline of January 15, 2022, for the Trust to respond. The Trustees
timely accepted the offer. 	Id. at 4. 	Written notice and a copy of the offer was not
provided to Communication Enhancement before acceptance. 	Doc. 57-1 at 4. 	The sale
closed on either March 28, 2022, or April 1, 2022,2 and a Trustee Warranty Deed was
delivered to the Hoppers and recorded in the Tama County Recorder’s Office.
On April 6, 2022, Communication Enhancement requested a copy of the deed
from the attorney who represented the Trust and the Hoppers in the transaction. On May
18, 2022, the attorney wrote that it “[l]ooks like the title examiner simply missed the
right of first refusal language.” 	Id. at 5. 	In subsequent correspondence dated June 20,
2022, he admitted that the agreement between the Trust and the Hoppers did not
memorialize an allocation of the purchase price between the farm real estate and the
Premises subject to the Ground Lease Agreement. 	Id. at 5-6. 	After learning of the
omission concerning the right of first refusal, the defendants attempted to resolve the
issue. Doc. 56-1 at 5.
The Hoppers and Trustees executed a Memorandum of Sale on February 22,
2023,3 for purposes of the Hoppers identifying what amount of the total purchase price
from the property they allocated in their offer to the leased Premises - $225,000. 	Id.;
2 The parties provide different dates in their statements of fact, which neither disputes. See Doc.
57-1 at 4, ¶ 18; Doc. 56-1 at 4, ¶ 14.
3 The Memorandum of Sale is dated March 28, 2022. See Doc. 54-3 at 58.
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Doc. 57-1 at 7. 	The Memorandum of Sale also authorized the Hoppers to contact
Communication Enhancement to demand exercise or waiver of the right of first refusal.
Doc. 56-1 at 5. 	In a letter dated August 14, 2023, the Hoppers provided notice of the
Memorandum of Sale and requested the exercise or waiver of any right of first refusal.
Id. at 6. 	Communication Enhancement responded through counsel by letter dated
September 13, 2023, stating the Memorandum of Sale did not trigger the right of first
refusal and was meaningless given that the sale had already been completed and the Trust
had not fulfilled the requirements of the right of first refusal. 	Id.
Upon further review of the Ground Lease Agreement, the Hoppers realized their
August 14, 2023, letter did not include a copy of the full purchase agreement for the
property. 	Id. at 7. 	On June 7, 2024, they sent another letter to Communication
Enhancement with notice and a request to exercise or waive any right of first refusal.
Communication Enhancement did not respond. 	Id.
On July 26, 2024, the Hoppers provided Communication Enhancement with a
waiver of right of first refusal consistent with the Ground Lease Agreement. 	Id. at 8.
Communication Enhancement refused to sign and return the waiver form. 	Id. 	The July
26, 2024, letter also instructed Communication Enhancement to make lease payments to
the Hoppers. Id. Communication Enhancement continued making payments to the Trust,
which turned over the payments to the Hoppers. 	Id. at 8-9.
On October 2, 2024, the Hoppers issued a notice of default pursuant to the Ground
Lease Agreement related to late payments and non-monetary defaults of sending payments
to the Trust. 	Id. at 9; Doc. 57-1 at 7. 	The parties dispute whether Communication
Enhancement was in default and, if it was, whether it cured any alleged defaults. 	Doc.
56-1 at 10; Doc. 57-1 at 7-8. 	The Hoppers allege damages of $3.66, consisting of the
interest they allegedly would have earned had Communication Enhancement tendered
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payments directly to the Hoppers.4 Doc. 60-1 at 3.
IV. 	SUMMARY JUDGMENT STANDARDS
Any party may move for summary judgment regarding all or any part of the claims
asserted in a case. Fed. R. Civ. P. 56(a). Summary judgment is appropriate when “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue of material fact and that the moving
party is entitled to a judgment as a matter of law.” 	Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
A material fact is one that “‘might affect the outcome of the suit under the
governing law.’” 	Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 	Thus,
“the substantive law will identify which facts are material.” Id. Facts that are “critical”
under the substantive law are material, while facts that are “irrelevant or unnecessary”
are not. 	Id.
An issue of material fact is genuine if it has a real basis in the record, Hartnagel
v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), or when “‘a reasonable jury could
return a verdict for the nonmoving party’ on the question.” 	Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005) (quoting Anderson, 477 U.S. at 248). Evidence
that only provides “some metaphysical doubt as to the material facts,” Matsushita, 475
U.S. at 586, or evidence that is “merely colorable” or “not significantly probative,”
Anderson, 477 U.S. at 249-50, does not make an issue of material fact genuine.
As such, a genuine issue of material fact requires “sufficient evidence supporting
the claimed factual dispute” so as to “require a jury or judge to resolve the parties'
differing versions of the truth at trial.” Anderson, 477 U.S. at 248-49. The party moving
4 Communication Enhancement notes that defendants have provided no evidence showing when
the Hoppers actually received the rent payments as their evidence shows only when the payments
were deposited into the Hoppers’ bank account.
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for entry of summary judgment bears “the initial responsibility of informing the court of
the basis for its motion and identifying those portions of the record which show a lack of
a genuine issue.” 	Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323). 	Once
the moving party has met this burden, the nonmoving party must go beyond the pleadings
and by depositions, affidavits, or otherwise, designate specific facts showing that there
is a genuine issue for trial. 	Mosley v. City of Northwoods, 415 F.3d 908, 910 (8th Cir.
2005). 	The nonmovant must show an alleged issue of fact is genuine and material as it
relates to the substantive law. If a party fails to make a sufficient showing of an essential
element of a claim or defense with respect to which that party has the burden of proof,
then the opposing party is entitled to judgment as a matter of law. 	Celotex, 477 U.S. at
322.
In determining if a genuine issue of material fact is present, I must view the
evidence in the light most favorable to the nonmoving party. 	Matsushita, 475 U.S. at
587-88. Further, I must give the nonmoving party the benefit of all reasonable inferences
that can be drawn from the facts. 	Id. 	However, “because we view the facts in the light
most favorable to the nonmoving party, we do not weigh the evidence or attempt to
determine the credibility of the witnesses.” 	Kammueller v. Loomis, Fargo & Co., 383
F.3d 779, 784 (8th Cir. 2004). 	Instead, “the court's function is to determine whether a
dispute about a material fact is genuine.” 	Quick v. Donaldson Co., Inc., 90 F.3d 1372,
1376-77 (8th Cir. 1996). On cross motions for summary judgment, the “court must rule
on each party's motion on an individual and separate basis, determining, for each side,
whether a judgment may be entered in accordance with the Rule 56 standard.” 	10A
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 2720 (3d ed. 1998).
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V. 	ANALYSIS
A. 	Communication Enhancement’s Motion
Communication Enhancement moves for partial summary judgment on its claims
of breach of contract and declaratory judgment (Counts I and IV) and on all of defendants’
counterclaims. I will address them in that order.
1. 	Communication Enhancement’s Claims
Communication Enhancement alleges the undisputed facts show that the Trust
breached the right of first refusal and requests that the court order specific performance
requiring the Trust to offer the leased Premises to Communication Enhancement for
$95,000. 	They assert money damages are inadequate and returning the leased Premises
back to the Trust would result in the Hoppers allocating the same price for the Premises
that they offered after the sale of the property.
Defendants 	argue 	Communication 	Enhancement 	was 	provided 	a 	sufficient
opportunity to exercise its right of first refusal, despite that it was offered post-closing.5
They 	dispute 	Communication 	Enhancement’s 	position 	that 	the 	alleged 	breach 	was
incurable, arguing that a bona fide offer need not be equivalent to market valuation
opinions and that Communication Enhancement cannot obtain specific performance at
fair 	market 	value 	based 	on 	Iowa 	law. 	Finally, 	they 	argue 	that 	the 	opinion 	of
5 In their own motion for summary judgment, defendants argue Communication Enhancement
lacks a contractual right to bring suit as it did not provide a notice of default to the Trust and
therefore, failed to satisfy a condition precedent to filing this action. 	Doc. 53 at 2. 	I find this
to be a non-issue because (1) the Trust had constructive notice through its attorney, to whom
Communication Enhancement reached out about the right of first refusal approximately five days
after closing and (2) any breach was incurable as the Trust no longer owned the Property at that
point. 	While the communication to the attorney may not have precisely followed the terms of
the Ground Lease Agreement for providing notice, only substantial compliance is required. See
Homeland Energy Solutions, LLC v. Retterath, 938 N.W.2d 664, 700-01 (Iowa 2020) (explaining
that substantial performance does not excuse the nonoccurrence of an express condition precedent
only when that condition precedent is necessary to the formation of a contract and that substantial
compliance with contract terms is otherwise generally sufficient).
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Communication Enhancement’s expert, Isaac Klemish, is inadmissible because he used
an unreliable methodology to appraise the Premises.
To prevail on a breach of contract claim under Iowa law,6 a plaintiff must prove:
(1) the existence of a contract; (2) the terms and conditions of the contract;
(3) that [plaintiff] 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.
Molo Oil Co. v. River City Ford Truck Sales, Inc., 578 N.W.2d 222, 224 (Iowa 1998)
(citing Iowa-Illinois Gas & Elec. Co. v. Black & Veatch, 497 N.W.2d 821, 825 (Iowa
1993)). A party breaches a contract when, without legal excuse, the party fails to perform
any promise that forms a whole or a part of the contract. 	Id. (citing Magnusson Agency
v. Public Entity Nat'l Co. Midwest, 560 N.W.2d 20, 27 (Iowa 1997)).
The first two elements are not in dispute. 	The Right of Refusal provision in the
Ground Lease Agreement provides as follows:
6 The Ground Lease Agreement provides it “shall be governed by the laws of the state in which
the Property is located.” Doc. 54-3 at 35. The Property is located in Tama County, Iowa. Doc.
54-3 at 28.
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Doc. 54-3 at 34-35. 	The Ground Lease Agreement also provides the following as to
default:
Id. at 32.
Both parties cite Myers v. Lovetinsky, 189 N.W.2d 571 (Iowa 1971), as the
primary authority for the issue at hand. 	In Myers, the landlords owned a 94-acre farm
with a half-acre leased to tenants. 	That lease gave the tenants a preferential right to
purchase the leased premises. 	Myers, 189 N.W.2d at 573. 	The landlords provided the
tenants notice in writing that buyers had offered to buy the leased premises for $20,000
cash. In reality, the buyers had not offered to buy the leased premises for $20,000 cash,
but to buy the entire farm on contract for $1,750 per acre. 	Id. at 574. 	The tenants
responded that they would exercise their preferential right to buy the leased premises,
but not for $20,000, as they did not believe that offer was in accordance with the terms
and conditions of the lease. 	Id.
The sale was completed later that month with the buyers agreeing to sell the leased
premises to the tenants for no more than $20,000. The tenants stopped paying rent a few
months later. The trial court determined that the tenants could exercise their preferential
right for “such proportion of $1,750 as the demised premises bear to one acre in size”
and the buyers appealed. 	Id. 	The Iowa Supreme Court concluded that the sale of the
entire farm for a single price of $1,750 per acre breached the tenants’ preferential right
to buy the leased premises because the sale did not separately price the leased premises
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and the rest of the farm, observing that the notice to tenants of the buyers’ purported
offer to buy the demised premises for $20,000 cash was false. 	Id.
With regard to relief, the Court noted that “when a landlord sells a whole farm
including demised premises without separately pricing the demised premises and the rest
of the farm, the price of the demised premises alone has not become fixed.” 	Id. at 576.
It cannot be based on a portion of the whole price in proportion to the acreage because
the demised premises may have a “considerably different value from a parcel of the same
size elsewhere in the farm.” Id. The Court agreed with the majority view that the tenant
cannot obtain specific performance but “can obtain relief which will maintain the status
quo ante until the end of the lease term, when the preferential right expires.” 	Id. 	It
stated this could be accomplished by “enjoining the landlord from conveying the demised
premises to the purchaser, or, if the landlord has already conveyed, by requiring the
purchaser to reconvey those premises to the landlord.” Id. Because the tenants in Myers
waited to sue until their lease expired, the court determined their preferential right had
expired and they were not entitled to relief. 	Id. at 577.
This case differs from Myers in that (1) no offer was presented to Communication
Enhancement prior to sale of the entire property and (2) the lease is ongoing. It is similar
in that the Trust’s post-sale attempt to cure the breach included an “offer” to buy the
leased Premises that was not a bona fide offer because, aside from not being presented
before the sale, it was fabricated out of the true offer for the entire acreage, which did
not separately price the leased Premises. Myers clearly holds this constitutes a breach of
the right of first refusal. 	It is undisputed the Trust sold the entire Property without first
notifying 	Communication 	Enhancement and then 	attempted 	to cure 	the 	breach by
fabricating a purchase price for the leased Premises out of the sale price for the entire
property.
I agree with Communication Enhancement that under these circumstances, the
breach is incurable because there was no determination of the value of the leased Premises
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in the bona fide offer made for the purchase of the entire Property, and thus, no fixed
price. It cannot be made after-the-fact for the reasons discussed in Myers:
Upholding a device such as was attempted here by the landlords and the
purchasers would permit persons occupying those positions to perpetrate
wrongs on tenants. Consider the possibilities. If certain demised premises
constituting a half-acre were worth $1,000 and a landlord and a purchaser
wanted to eliminate a tenant, they could simply provide that the landlord
should offer those premises to the tenant for $20,000 – although the
purchaser was buying the demised premises as part of a larger tract at
$1,750 per acre for the whole. The only way the purchaser could eliminate
the tenant would be by actually buying or offering to buy the demised
premises for a separate price of $20,000. The tenant would then be entitled
to his first refusal at that figure. If the tenant did not buy, he would be out
of the picture.
Myers, 189 N.W.2d at 575.
With regard to whether Communication Enhancement performed all the terms and
conditions required of it under the contract, defendants argue that it failed to tender lease
payments to the Hoppers. 	As I will address in greater detail below in discussing
defendants’ counterclaims, this does not amount to a material breach of the Ground Lease
Agreement and, in any event, occurred after the breach of right of first refusal such that
it would not excuse the Trust’s performance under the contract.
That leaves the issue of the appropriate remedy. 	In its reply, Communication
Enhancement clarifies that its request is that the leased Premises be transferred back to
the Trust, with the requirement that the Trust offer the Premises to Communication
Enhancement at a reasonable price set by the court rather than requiring the Hoppers to
sell the Premises directly to Communication Enhancement at a price set by the court. 	It
contends that this type of specific performance is necessary based on the unique
circumstances and because compensatory damages cannot be determined with reasonable
certainty. It relies on Pistol Ltd. Co. v. Green Family Flooring, Inc., No. 22-0126, 2023
WL 2905165, at *4 (Iowa Ct. App. Apr. 10, 2023), noting that it presented a similar
issue as to Myers but, because the lease had not expired in that case, the Iowa Court of
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Appeals remanded the case back to the district court to determine the proper remedy.
Communication Enhancement emphasizes the following footnote from Pistol Ltd., which
was cited for the proposition that “[a] package deal cannot defeat the right of first
refusal”:
A lengthy discussion of the right of first refusal in association with package
deals is found in a law review note, which concludes:
In terms of fairness and efficiency, the most appropriate
default rule is to require an owner who receives an acceptable
offer for a package deal to provide the rightholder with an
opportunity to purchase the burdened portion of the package
at a reasonable price. 	If the owner fails to do so, the
rightholder should be entitled to enforce her privilege by
purchasing the burdened property at a price determined by the
court to be fair and reasonable.
Pistol Ltd. Co., 2023 WL 2905165, at *3, n. 5 (quoting Bernard Daskal, Note, Rights of
First Refusal and the Package Deal, 22 Fordham Urb. L.J. 461, 501 (1995)).
Defendants argue that specific performance at fair market value is precluded by
Myers. See Myers, 189 N.W.2d at 576 (“We think that to grant specific performance of
the demised premises for their market value is to rewrite the tenant’s preferential right.
That right requires the landlords here to sell to the tenants ‘at the same price for which
the Lessor would be willing to sell to any other person,’ not ‘at the market value.’ 	We
hold that in these situations the tenant’s relief is limited to maintaining the status quo ante
with respect to the demised premises for the rest of the term of the lease.”). In any event,
defendants argue that opinion of Communication Enhancement’s expert is inadmissible
due to its reliance on unreliable methodology to appraise the Premises. 	It notes that
Klemish could not find any cell-tower transactions comparable to the tower here, so used
wind turbine leases instead, which defendants note involve not only different industries,
but distinct products and risks, and thus, distinct markets.
As defendants observe, Pistol Ltd. was not remanded to the district court with an
instruction that the premises be sold to the lessee at a price determined by the court to be
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fair and reasonable. 	Rather, it was remanded for “a determination of a proper remedy
for [the lessee]” and cited Myers. See Pistol Ltd. Co., 2023 WL 2905165, at *4. Myers
discussed various remedies, noting that if the landlord has already conveyed the premises,
the majority rule is to require “the purchaser to reconvey those premises to the landlord.”
Myers, 189 N.W.2d at 576. 	It specifically noted the minority view (two jurisdictions at
that time) would grant the tenant specific performance based on the market value of the
demised premises as found by the court. Id. Communication Enhancement is asking for
something between these two views. 	It agrees the Premises should be conveyed back to
the Trust, but argues court intervention is necessary because “the Trust and the Hoppers
may set the price at any amount they please because no price was allocated to the leased
Premises prior the sale of the Property.” Doc. 60 at 2-3.
Myers instructs that the proper remedy is to require the Hoppers to reconvey the
Premises back to the Trust. 	Myers, 189 N.W.2d at 576 (instructing that to maintain the
status quo ante means “enjoying the landlord from conveying the demised premises to
the purchaser, or, if the landlord has already conveyed, by requiring the purchaser to
reconvey those premises to the landlord.”). 	As for what happens after that, Myers is
silent except to state that the status quo ante should continue until the end of the lease
period. Id. (“We hold that in these situations the tenant’s relief is limited to maintaining
the status quo ante with respect to the demised premises for the rest of the term of the
lease.”). In this case, the lease may be renewed up to three more five-year periods. See
Doc. 54-3 at 30 (providing the initial term of the Ground Lease Agreement was 15 years
with the lessee’s option to renew for five successive five-year renewal terms upon the
same terms and conditions of the initial 15-year term); Doc. 57-1 at 3 (agreeing the
Ground Lease Agreement is in the second five-year renewal term). Defendants make no
argument as to what should happen after reconveyance to the Trust, arguing only that
Communication Enhancement cannot obtain specific performance at fair market value.
Of course, any subsequent sale of the leased Premises must comply with the
Ground Lease Agreement and Communication Enhancement’s right of first refusal.
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Communication Enhancement’s concern is that “[w]ithout court intervention, the Trust
and Hoppers may set the price at any amount they please because no price was allocated
to the leased Premises prior to the sale of the Property.” 	Doc. 60 at 2-3. 	Therefore, it
requests that “[o]nce the leased Premises is transferred back to the Trust, the Trust must
then offer the Premises to [Communication Enhancement] at a reasonable price set by
this Court consistent with [Communication Enhancement]’s right of first refusal.” Id. at
2.
Courts that have ordered the demised property returned to the lessors have rejected
a request to order the subsequent conveyance to the lessee at a price set by the court. See
L.E. Wallach, Inc. v. Toll, 113 A.2d 258, 261 (Penn. 1955) (directing that the property
be restored to the lessors “and not again conveyed by them except to the plaintiff or to a
purchaser whose offer, if rejected by the lessee, is thereupon accepted by the lessors”
and finding “untenable” the lessee’s request “for an order directing that the demised
premises be conveyed to it at such price as the court shall deem fair and equitable.”);
C&B Wholesale Stationery v. S. De Bella Dresses, Inc., 349 N.Y.S.2d 751, 753-54
(N.Y. App. Div. 1973) (concluding that when the sale of a larger parcel, including the
leased premises, has already been sold, “it is necessary to order a conveyance of title to
the lease premises back to the lessor and to enjoin a further sale of the lease premises by
the lessor to anyone other than plaintiff without giving the latter an opportunity to meet
any bona fide offer of purchase thereof” and rejecting a request for specific performance
since the lessor had no intention to sell only the leased premises). 	I agree with this
approach and decline to provide any relief beyond the reconveyance, as such relief would
border on the type of specific performance rejected in Myers. 	See Myers, 189 N.W.2d
at 576 (“We think that to grant specific performance of the demised premises for their
market value is to rewrite the tenant’s preferential right.”).
In summary, Communication Enhancement is entitled to summary judgment on its
claims of breach of contract (Count I) and declaratory judgment (Count IV), as the sale
of 	the 	entire 	acreage, 	including 	the 	leased 	Premises, 	for 	$750,000 	violated
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Communication Enhancement’s right of first refusal. 	In accordance with Myers, the
leased Premises must be reconveyed to the Trust.
2. 	Defendants’ Counterclaims
Defendants’ counterclaims of quiet title for declaratory judgment (Counterclaim
Counts 2 and 3) are moot based on the ordered reconveyance of the leased Premises back
to the Trust. 	Defendants’ breach of contract claim (Counterclaim Count 1) relates to
Communication Enhancement’s failure to tender its lease payments directly to the
Hoppers after they provided notice on July 26, 2024, of the new address to send
payments. 	Defendants assert this constituted a material breach of the Ground Lease
Agreement and resulted in damages of $3.66 to the Hoppers based on interest they would
have incurred had the payments been tendered directly to the Hoppers instead of through
the Trust.7 Defendants maintain that even if Communication Enhancement’s right of first
refusal was breached, Communication Enhancement chose to stand by the contract and
was therefore obligated to continue making rent payments according to the Ground Lease
Agreement. 	The Ground Lease Agreement required Communication Enhancement to
tender payments to the “Lessor,” which they contend was the Hoppers when they
received an assignment of the Lease in April 2022 pursuant to the purchase agreement.
See Doc. 54-3 at 40 (stating “[s]ale includes assignment of lease with the cell tower
company to the Buyer.”). Defendants argue they notified Communication Enhancement
of where to send future lease payments on July 26, 2024, and of its breach on October
2, 2024. 	They contend Communication Enhancement refused to cure the default by
continuing to send payments to the Trust.
7 As noted by Communication Enhancement, the Trust does not allege any damages. 	Doc. 54-
1 at 18, n. 4. 	I agree that any breach of contract claim by the Trust fails a matter of law as it
does not purport to be the Lessor to the Ground Lease Agreement after April 2022 and does not
allege any damages.
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Communication Enhancement argues it is entitled to summary judgment on
defendants’ breach of contract counterclaim because any purported assignment from the
Trust to the Hoppers was invalid based on the breach of Communication Enhancement’s
right of first refusal. 	Further, it asserts there was never an executed assignment of the
lease from the Trust to the Hoppers.8 Even if the purported assignment in the purchase
agreement 	was 	effective, 	Communication 	Enhancement 	asserts 	that 	it 	nevertheless
fulfilled its obligations under the Ground Lease Agreement, which required payment to
the Lessor at 141 5th Avenue, Marion, Iowa, 52322, and is where Communication
Enhancement has sent its payments. 	Communication Enhancement argues that because
the Hoppers waited until July 26, 2024,9 to inform it where to send lease payments and
there was never any executed amendment/assignment of the lease, the doctrines of
estoppel, waiver and acquiescence should prevent defendants from unfairly asserting a
right to declare default after allowing the alleged noncompliance for 27 months after the
sale of the Property.
Section 237 of the Restatement (Second) of Contracts provides: “[Subject to an
exception not applicable here], it is a condition of each party’s remaining duties to render
performances to be exchanged under an exchange of promises that there be no uncured
material failure by the other party to render any such performance due at an earlier time.”
Restatement (Second) of Contracts § 237 (1981). 	As explained in the comments, “a
material failure of performance, including defective performance as well as an absence
of performance, operates as the non-occurrence of a condition.” 	Id. (comment a). 	The
8 In its reply, Communication Enhancement submitted a statement of additional facts (Doc. 60-
2) related to this argument and in response to defendants’ resistance. Defendants have not filed
a response. In any event, defendants rely on the language in the purchase agreement (Doc. 53-
3 at 23-28) that “[s]ale includes assignment of lease with the cell tower company to the Buyer.”
9 Communication Enhancement notes that in two communications prior to July 26, 2024,
defendants acknowledged that an amendment to the Ground Lease Agreement was required “to
update the lessor’s information for purposes of lease payments.” Doc. 53-3 at 44, 49.
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non-occurrence of a condition has two possible effects: “It prevents performance of those
duties from becoming due, at least temporarily, and it discharges those duties if it has not
been cured during the time in which performance can occur.” 	Id.
The Trust’s breach of Communication Enhancement’s right of first refusal was
material. 	See Dolly Investments, LLC v. MMG Sioux City, LLC, 984 N.W.2d 168, 174
(Iowa 2023) (noting the five factors courts consider in determining materiality of a breach
based on the Restatement (Second) of Contracts § 241 are whether the breach (1) deprives
an injured party of a reasonably expected benefit, (2) cannot be adequately remedied, (3)
produces a forfeiture in the nonperforming party, (4) is not likely to be cured by the
nonperforming party and (5) results from the nonperforming party’s failure to comply
with standards of good faith and fair dealing). Therefore, Communication Enhancement
would have been justified in suspending its payments under the lease.
However, Communication Enhancement opted to continue receiving the benefits
under the lease, such that it was required to perform its part of the bargain by continuing
to make rental payments in accordance with the Ground Lease Agreement. 	See Ryan
Data Exchange, Ltd v. Graco Inc., No. 4:14-cv-198, 2017 WL 5957205, at *5 (S.D.
Iowa Jan. 30, 2017) (“when a party breaches a contract, the nonbreaching party has a
choice of ‘two inconsistent rights – it can either elect to allege a total breach, terminate
the contract and bring an action or, instead, elect to keep the contract in force, declare
the default only a partial breach, and recover those damages caused by that partial
breach.’” (quoting 13 Richard A. Lord, Williston on Contracts, § 39:32 (4th ed. 2000))).
“[T]he 	nonbreaching 	party, 	by 	electing 	to 	continue 	receiving 	benefits 	under 	the
agreement, cannot then refuse to perform its part of the bargain.” Id. The Ground Lease
Agreement provided: “Rent payments shall be payable to Lessor at the address set forth
above or at such other address as Lessor shall notify Lessee in accordance with Paragraph
15.” 	Doc. 54-3 at 30. 	There is no dispute that the Hoppers’ July 26, 2024, letter
complied with the notice requirements of paragraph 15. 	See id. at 33. 	Communication
Enhancement cites no legal authority as to why the assignment in the purchase agreement
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was ineffective or why an amendment to the Ground Lease Agreement was required when
it clearly allows the Lessor to instruct the Lessee where to send rental payments, at any
time and for any reason, so long as they provide the required notice.10 Communication
Enhancement has not demonstrated that the Hoppers’ breach of contract claim fails as a
matter of law.11 As such, Communication Enhancement is entitled to summary judgment
only as to defendants’ counterclaims to quiet title and declaratory judgment/reformation
and only as to the Trust and Trustee defendants on the breach of contract counterclaim.
B. 	Defendants’ Motion
Defendants seek summary judgment on all of Communication Enhancement’s
claims. 	While I have already addressed the breach of contract claim and declaratory
judgment, I will consider defendants’ motion as to Communication Enhancement’s other
two claims – intentional interference with contract and unjust enrichment.
1. 	Intentional Interference with Contract
An intentional interference with contract claim requires a plaintiff to show: “(1)
plaintiff had a contract with a third-party; (2) defendant knew of the contract; (3)
defendant intentionally and improperly interfered with the contract; (4) the interference
caused the third-party not to perform, or made performance more burdensome or
expensive; and (5) damage to the plaintiff resulted.” 	Green v. Racing Ass’n of Cent.
Iowa, 713 N.W.2d 234, 243 (Iowa 2006) (quoting Gibson v. ITT Hartford Ins. Co., 621
10 This is why Communication Enhancement’s arguments of estoppel, waiver and acquiescence
also fail. The Hoppers are not alleging noncompliance with the Ground Lease Agreement during
the 27 months after the sale and before their notice. 	Rather, they are alleging a breach after
their notice on July 26, 2024, when they instructed Communication Enhancement, in accordance
with the rent and notice provisions of the Ground Lease Agreement, where to send rental
payments.
11 For reasons that will be discussed in Section VI, infra, that claim will be dismissed without
prejudice.
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N.W.2d 388, 299 (Iowa 2001)). 	Factors used to determine if challenged conduct is
improper include: (1) the nature of the conduct; (2) the defendant’s motive; (3) the
interests of the party with which the conduct interferes; (4) the interest sought to be
advanced by the defendant; (5) the social interests in protecting the freedom of action of
the defendant and the contractual interests of the other party; (6) the nearness or
remoteness of the defendant’s conduct to the interference and (7) the relations between
the parties. 	Id. at 244. 	The Iowa Supreme Court has cited the following from the
Restatement (Second) of Torts regarding this element:
Intent alone . . . may not be sufficient to make the interference improper,
especially when it is supplied by the actor’s knowledge that the interference
was a necessary consequence of his conduct rather than by his desire to
bring it about. In determining whether the interference is improper, it may
become very important to ascertain whether the actor was motivated, in
whole or in part, by a desire to interfere with the other’s contractual
relations. 	If this was the sole motive the interference is almost certain to
be held improper.
. . . [I]f there is no desire at all to accomplish the interference and it is
brought about only as a necessary consequence of the conduct of the actor
engaged in for an entirely different purpose, his knowledge of this makes
the interference intentional, but the factor of motive carries little weight
toward producing a determination that the interference was improper.
Berger v. Cas’ Feed Store, Inc., 543 N.W.2d 597, 599 (Iowa 1996) (quoting Restatement
(Second) of Torts § 767 cmt. d).
The Trust argues it cannot be held liable because it was a party to the contract.
See Jones v. Lake Park Care Ctr., Inc., 569 N.W.2d 369, 377 (Iowa 1997) (“A party to
a contract cannot be liable for tortious interference with that contract. Only a third-party,
separate from the contracting parties, can be liable for such a tort.”). The Hoppers argue
they cannot be held liable because there is no evidence of intentional and improper
interference, 	that 	they 	caused 	the 	non-performance 	by 	the 	Trust 	or 	damages.
Communication 	Enhancement 	argues 	there 	are 	fact 	issues 	that 	preclude 	summary
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judgment based on its civil conspiracy theory of liability – that the Trust acted in concert
with the Hoppers to circumvent Communication Enhancement’s right of first refusal.
Aside 	from 	the 	structure 	of 	the 	transaction 	and 	the 	purchase 	agreement,
Communication Enhancement relies on deposition testimony from Perkins that she was
aware of Communication Enhancement’s right of first refusal prior to selling the
Property, see Doc. 53-3 at 72, and Hopper’s deposition testimony that he was also aware
of the right of first refusal and spoke to Perkins about it. Id. at 85-86, 88. This evidence
is insufficient to generate an issue of fact as to either Communication Enhancement’s
civil 	conspiracy theory 	of 	liability or 	its intentional 	interference 	claim. 	Perkins’
testimony is that her understanding of the right of first refusal was that “it was for selling
the lease, not the land.” 	Doc. 53-3 at 73-74. 	She also indicated that prior to closing,
she indicated to Hopper there was a right of first refusal but “wasn’t sure what it meant
exactly” and that “counsel needed to determine that.” 	Id. at 78.
Hopper’s testimony reveals similar misunderstandings, as he relied on Perkins’
knowledge of the right of first refusal. Hopper testified that Perkins indicated there was
a right of first refusal and based on that conversation, he understood it applied to part of
the farm but did not prevent someone from buying the entire 112 acres. 	Id. at 85-86,
90. He did not have a copy of the Ground Lease Agreement and assumed that an attorney
for the title examining company or the attorney representing the parties would review it.
Id. at 87. 	This evidence is insufficient to generate a genuine issue of material fact as to
(1) any collusion by the Trust and Hoppers to support a civil conspiracy theory of
liability12 or (2) that the Hoppers intentionally and improperly interfered with the contract
and caused the Trust not to honor the right of first refusal. 	Rather, it demonstrates that
the parties had knowledge of the right of first refusal prior to closing but did not
understand what it meant and were relying on counsel or the title company to review it.
12 Aside from its civil conspiracy theory of liability, this claim fails as a matter of law against
the Trust as it is a party to the contract at issue. See Jones, 569 N.W.2d at 377.
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There is no evidence of any improper motive or agreement between the parties to thwart
Communication Enhancement’s right of first refusal.
To the extent Communication Enhancement also relies on backdated Memorandum
of Sale, this also fails to generate a genuine issue of material fact as to any intentional or
improper interference or causation because the record demonstrates it was created after
the sale had already taken place. 	See Doc. 57-1 at 7 (in which defendants admit the
Memorandum of Sale was drafted by counsel on February 22, 2023). For these reasons,
defendants are entitled to summary judgment on Communication Enhancement’s claim
of intentional interference with contract.
2. 	Unjust Enrichment
Under Iowa law, “the existence of a contract precludes the application of the
doctrine of unjust enrichment.” Johnson v. Dodgen, 451 N.W.2d 168, 175 (Iowa 1990)
(citing Smith v. Harrison, 325 N.W.2d 92, 94 (Iowa 1982) and 66 Am. Jur. 2d,
Restitution and Implied Contracts, § 6 at 949 (1973)); see also Bass v. J.C. Penney Co.,
880 N.W.2d 751, 764 (Iowa 2016) (“Because there is a contract between the consumer
and J.C. Penney for the sale of goods, the claim for unjust enrichment fails as a matter
of law.”).
Defendants seek summary judgment on Communication Enhancement’s unjust
enrichment claim because they argue the Ground Lease Agreement governs the full
breadth of the parties’ rights concerning the right of first refusal. 	Communication
Enhancement argues that the Trust and the Hoppers were enriched by the sale of the
Property that violated Communication Enhancement’s right of first refusal. 	It contends
that this claim is “an equitable remedy available to [Communication Enhancement] in the
event there is no express contract between the parties due to the Trust’s breach of
[Communication Enhancement]’s right of first refusal.” Doc. 56 at 20.
It is undisputed there is an express contract between the Trust and Communication
Enhancement. 	As such, Communication Enhancement’s claim as to the Trust fails as a
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matter of law. 	See Johnson, 451 N.W.2d at 175. 	With regard to the Hoppers,
Communication Enhancement argues they retained the leased Premises they were not
otherwise immediately entitled to if the right of first refusal had been honored and
Communication Enhancement offered to purchase the Premises on the same terms offered
by the Hoppers (had a price been separately allocated in the first place). Communication
Enhancement seeks this remedy “in the alternative.” 	Doc. 56 at 18. 	Because relief has
been provided through its breach of contract claim and the Hoppers ordered to reconvey
the leased Premises to the Trust, the claimed unjust enrichment by the Hoppers is now
moot. As such, summary judgment on this claim is appropriate as to all defendants.
VI. 	SUPPLEMENTAL JURISDICTION
In commencing this action, Communication Enhancement invoked the court’s
diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(1), alleging that the plaintiff and
the defendants are citizens of different states and the amount of controversy, exclusive of
interest and costs, exceeds $75,000. 	Doc. 1 at 2. 	Those allegations have not been
challenged and there is no doubt that this court had original subject matter jurisdiction
over Communication Enhancement’s claims.
As a result of this order, however, the only remaining claim in this case is the
breach 	of 	contract 	counterclaim 	asserted 	by 	defendants 	Richard 	and 	Jodi 	Hopper
(Counterclaim Count 1). The amount in controversy as to that claim is $3.66. Doc. 60-
1 at 3. Because the amount in controversy does not exceed $75,000, that claim could not
have been brought in federal court as a stand-alone claim. 	When a federal district court
has original jurisdiction over a claim, it also has “supplemental jurisdiction over all other
claims that are so related to claims in the action within such original jurisdiction that they
form part of the same case or controversy under Article III of the United States
Constitution.” 28 U.S.C. § 1367(a). However, once the court has disposed of all claims
for which original jurisdiction existed, the court may decline to exercise supplemental
jurisdiction over any remaining claims. 28 U.S.C. § 1367(c).
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In deciding whether to exercise supplemental jurisdiction, the court must consider
such factors as judicial economy, convenience, fairness and comity. 	Starkey v. Amber
Enterprises, Inc., 987 F.3d 758, 765 (8th Cir. 2021). 	Having considered these factors,
I decline to exercise supplemental jurisdiction over the Hoppers’ de minimis breach of
contract claim. 	That claim will be dismissed without prejudice to being re-filed in state
court.
VII. 	CONCLUSION
For the reasons stated herein:
1. 	Communication Enhancement’s motion (Doc. 54) for partial summary
judgment is granted in part and denied in part. It is granted as to its claims of breach
of contract (Count I) and declaratory judgment (Count IV) and as to defendants’
counterclaims to quiet title and declaratory judgment/reformation (Counterclaim Counts
2 and 3). It is also granted as to any breach of contract counterclaim by defendants Irma
M. Kucera Living Trust and Trustees Natalie Mass and Lorna Perkins. 	The motion is
denied as to defendants Richard and Jodi Hoppers’ breach of contract counterclaim
(Counterclaim Count 1).
2. 	Defendants’ motion (Doc. 53) for summary judgment is granted in part
and denied in part. 	It is denied as moot as to Communication Enhancement’s claims
of breach of contract and declaratory judgment (Counts I and IV). 	It is granted as to
Communication Enhancement’s claims of intentional interference with contract and unjust
enrichment (Counts II and III).
3. 	Defendants Rick and Jodi Hopper are hereby directed to reconvey the
leased Premises back to the Irma M. Kucera Living Trust. Upon such reconveyance, the
parties are free to enter into whatever additional transactions they see fit, consistent with
the Ground Lease Agreement and Communication Enhancement’s right of first refusal.
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4. 	This court declines to exercise supplemental jurisdiction over the Hoppers’
breach of contract counterclaim against Communication Enhancement (Counterclaim
Count 1). As such, that claim is dismissed without prejudice.
5. 	Judgment shall enter in favor of Communication Enhancement consistent
with this order.
6. 	Because this order resolves and/or disposes of all claims pending in this
case, no claims remain for trial and the Clerk of Court shall close this case.
IT IS SO ORDERED this 28th day of January, 2026.
__________________________
Leonard T. Strand
United States District Judge
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