GreatAmerica Financial Services Corporation v. Personal Touch Medical Mangement, Inc. and Marisol Aponte

IN THE COURT OF APPEALS OF IOWA
No. 18-1932
Filed February 19, 2020
GREATAMERICA FINANCIAL SERVICES CORPORATION,
Plaintiff-Appellee,
vs.
PERSONAL TOUCH MEDICAL MANAGEMENT, INC. and MARISOL APONTE,
Defendants-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.
The defendants appeal an adverse summary judgment ruling in this breach-
of-contract action. REVERSED AND REMANDED.
Peter C. Riley of Tom Riley Law Firm, P.L.C., Cedar Rapids, for appellants.
Randall D. Armentrout and Leslie C. Behaunek of Nyemaster Goode, P.C.,
Des Moines, for appellee.
Heard by Bower, C.J., and May and Greer, JJ.
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BOWER, Chief Judge.
The defendants, Personal Touch Medical Management (PTMM) and
Marisol Aponte (Aponte), appeal from an adverse summary judgment ruling in this
breach-of-contract action brought by GreatAmerica Financial Services Corporation
(GreatAmerica). The defendants assert the district court erred in granting
summary judgment as there remain genuine issues of material fact as to whether
there is a valid contract between the parties. They also challenge the court’s award
of attorney fees. Because GreatAmerica has not proved a breach of contract as a
matter of law, we reverse and remand for further proceedings.
I. Background Facts and Proceedings.
PTMM is a New York management services organization that offers a
number of administrative services to medical professionals, including the medical
practice of Mujibur R. Majumder, MD, P.C. of Bronx, New York.
On May 21, 2015, Aponte, the chief executive officer of PTMM, signed a
software and services term sheet for PTMM offered by a vendor, InSync
Healthcare Solutions, LLC (InSync). The software was to be used to assist with
practice management (“PM”) and electronic medical records (“EMR”) for PTMM’s
clients, including Mujibur R. Majumder, MD, P.C. The term sheet signed by Aponte
provided:
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InSync PM+EMR
License Purchase
License term License purchase
Total Upfront Costs $0
Monthly Payment/Provider $130
Monthly Payment $650
(for All Licensed Providers)
Number of Monthly Payments 60
3rd Party Fees $75
Roland Therriault, the vice president of sales, signed the term sheet on
behalf of InSync on May 27, 2015.
GreatAmerica is an Iowa corporation that provides financing to companies
that desire to acquire business equipment or software for commercial use. Two
GreatAmerica documents dated June 6, 2015—a “Software Finance Agreement”
and a “Prefund Request and Authorization”—for customer “Mujibur R Majumder,
MD, P.C.” and vendor “InSync Healthcare Solutions” show a signature in the area
entitled “customer’s authorized signature” next to the printed customer “name &
title” of “Mujibur Majumder.”
The GreatAmerica software finance agreement provides for sixty months of
monthly payments of $649.97. It states in bold and capital letters, “THIS
AGREEMENT IS NON-CANCELABLE AND IRREVOCABLE. IT CANNOT BE
TERMINATED.”
The prefund request contains the following language:
By your execution of this Prefund Request and Authorization
(the “Prefund Request”), you hereby request that GreatAmerica . . .
pay to your Vendor all, or a substantial portion (as indicated by your
Vendor), of the amount your Vendor has invoiced us (or you) for the
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items being leased and/or financed under the Agreement (the
“Financed Items”), notwithstanding that you have not received some
or all of the Financed Items. . . . To induce us to pay the Advance
Funding Amount to your Vendor immediately, YOU AGREE THAT
YOUR OBLIGATION TO MAKE THE PAYMENTS CALLED FOR
UNDER THE AGREEMENT HEREBY COMMENCES
IMMEDIATELY. YOU FURTHER AGREE THAT YOUR
OBLIGATION TO MAKE THE PAYMENTS CALLED FOR UNDER
THE AGREEMENT IS UNCONDITIONAL AND THAT YOU WILL
TIMELY PERFORM ALL SUCH OBLIGATIONS WITHOUT ANY
CLAIM OF SETOFF, EVEN IF: (A) YOU DO NOT RECEIVE SOME
OR ALL OF THE FINANCED ITEMS; (B) THE FINANCED ITEMS
ARE RECEIVED BY YOU, BUT NOT ON A TIMELY BASIS;
AND/OR (C) THE FINANCED ITEMS DO NOT, AT THE TIME OF
YOUR RECEIPT OR THEREAFTER, OPERATE PROPERLY, ARE
INEFFECTIVE, OR THERE IS ANY OTHER NONCONFORMANCE
IN ANY SUCH FINANCED ITEM. . . .
On November 23, 2016, GreatAmerica filed suit against Mujibur R.
Majumder, MD, P.C. and Mujibur R. Majumder (hereinafter collectively MRM),
alleging breach of the software finance agreement, breach of guaranty, and unjust
enrichment. MRM answered, denying the allegations.
In April 2017, GreatAmerica moved to amend the petition to add a
fraudulent-misrepresentation claim against PTMM and Aponte based upon an
affidavit provided by Aponte and produced by MRM. In the affidavit Aponte states:
(4) I am the Chief Executive Officer of Personal Touch Medical
Management, Inc.
(5) I have been so engaged for [seven] years.
(6) In the course of my duties as CEO of Personal Touch
Medical Management, Inc. I have come to know Mujibur R.
Majumder, M.D.
(7) Mujibur R. M[a]jumder, M.D. is not, either personally or in
conjunction with Mujibur R. Majumder, M.D. P.C. an owner,
stockholder, employee, subject to or affiliated with the management
of Personal Touch Medical Management Inc. in any way.
(8) Dr. Majumder is a contracted service provider of Personal
Touch Medical Management, which does not have any authority over
him personally or his professional corporation in any way.
(9) I had no authority with nor was I granted any authority or
permission from Dr. Majumder or anyone affiliated with him
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personally or through his Professional Corporation to act on his
behalf, sign his name, contract, commit or bind him in any way, either
personally or corporately.
(10) Dr. Majumder did not participate in any way in the
creation or course of any business relationship between Personal
Touch Medical Management, Inc. and InSync Healthcare Solutions,
LLC.
(11) Dr. Majumder did not participate in any way in the
creation or course of any business relationship between Personal
Touch Medical Management, Inc. and GreatAmerica Financial
Services Corporation.
(12) To the best of my knowledge, Dr. Majumder did not
participate in any way in the creation or course of any business
relationship between GreatAmerica Financial Services Corporation
and InSync Healthcare Solutions, LLC.
(13) Dr. Majumder did not direct, solicit or otherwise
participate in the preparation of the documents referred to in the
Plaintiff's lawsuit.
(14) The signatures that the Plaintiff purports to be Dr.
Majumder’s are not his. I signed them as I described in detail in my
letter dated October 28, 2016,[1] a copy of which is attached and
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The October 28, 2016 letter provides:
Dear Ms. Zirtzman,
First and foremost, thank you for the extension granted to us late
last week. This has afforded us the ability to further research the
relationship between InSync[ ], GreatAmerica, Dr. Majumder and Personal
Touch Medical Management.
We’re an organization that takes our debts, and our monthly
obligations seriously.
In reviewing the situation with InSync[ ]/GreatAmerica, many
questions and concerns have arisen.
First and foremost, at no time did Dr. Majumder authorize the
purchase or lease of any software from lnSync[ ]. Further, at no time did
Dr. Majumder sign or otherwise authorize any agreement with
GreatAmerica to finance such a purchase.
Let me give you the background to this situation.
[PTMM] is a management services organization that offers a
number of administrative services to medical professionals. Dr. Majumder
is a client of ours. We decided to contract with lnSync for Practice
Management software and an Electronic Health Record System, for the
benefit of a number of our clients. The plan we wished to obtain was a
monthly subscription plan, not a lease or purchase.
I have contracts in front of me as I write this letter. It appears that I
signed the original InSync[ ] PRACTICE MANAGEMENT contract on
05/27/2015. Roland Therriault, VP Sales signed on InSync[ ]’s behalf. I
then signed another, similar PM contract with modifications on 11/13/2015.
It looks like there were dollar adjustments when compared to the original
PM contract.
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incorporated by reference herein. I did not have his permission to do
so.
(15) Despite repeatedly advising GreatAmerica of the above
facts, they have continued to pursue and harass Dr. Majumder in this
matter.
I am astounded and quite concerned that the contract documents
that I have in my possession contain only a brief description of the software
modules desired, with costs. There are NO general terms and conditions,
so that these documents standing alone, do not represent legally
enforceable contracts. Looking into this further, it seems the “general terms
and conditions” or the primary contract is contained in an End User License
Agreement that is required at every login.
I hardly need to say it, but this is highly unusual, and in fact quite
irregular, in business software contracts. I have never before encountered
this situation in over three decades of business experience. There are so
many problems with this approach, I hardly know where to begin. Let me
confine myself to some of the more obvious and troubling aspects.
First, I have no copy of the agreement with my signature on it.
Second, this approach allows the software company to change the terms
and conditions of the contract at any time, without notice or adequate
opportunity for the user to review. A busy practitioner is not going to review
a contract every time he/she logs in. And finally, the practitioner agreeing
to the contract may have no authority to do so, as in this case.
If, in fact, InSync has a valid hard copy contract with my signature
on it, please have them send a copy to me for my review.
It is at this point that GreatAmerica becomes involved, much to my
surprise. In the beginning of June 2015 InSync[ ] sent a trainer to the
PTMM location to do on-site training for the new InSync[ ] EMR
activation/install. At the completion of the training, the trainer (I think it was
a Ms. Laura Jurgens) passed a new, never previously discussed form to
me, saying that InSync[ ] needed to know the physician who would be using
the EMR. At no time was I informed that this was a contract for financing
a purchase of the software, a purchase that I never desired or requested;
at no time was GreatAmerica mentioned; at no time did I agree to such a
transaction. I did write in the name of Dr. Majumder on the form, thinking
it was informational only.
The form has tiny print and confusing language. My impression is,
this was a “sign here” tactic in a fast paced medical environment with ample
distraction to ensure lack of proper review. That the contract hand-off was
done at the completion of training as opposed to at the beginning further
illustrates the “bait and switch” aspects of the situation.
It appears to me that InSync[ ] and GreatAmerica are
co-conspirators in a highly suspect and predatory scheme to take
advantage of medical professionals who are not well versed in business
practices and the law. Medical professionals, in fact, like my clients, who
depend on me to protect them from abusive practices such as these.
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The court allowed the amendment. Aponte and PTMM filed their answer generally
denying the allegations and including a number of affirmative defenses, including
that the alleged contract is void for lack of acceptance or meeting of the minds and
that GreatAmerica engaged in unfair and deceptive trade practices.
On August 21, 2017, the MRM defendants filed a motion for summary
judgment.
On August 28, GreatAmerica dismissed its claims against the MRM
defendants without prejudice.
Aponte and PTMM filed an amended answer to a paragraph of the amended
petition (“After [contract] default, Aponte alleged that she signed Majumder’s name
on the Agreement without his permission.”), which includes the following
statement:
Denied as phrased. As should be clear from the April 3, 2017
Affidavit of Marisol Aponte, which incorporates her October 28, 2016
letter to Rita Zirtsman of GreatAmerica Financial Services
Corporation, Aponte did not have any authority to bind Dr.
M[a]jumder or his professional corporation to any contract and
Aponte did not understand she was signing a contract or agreement,
but that the person she believed at the time to be a trainer for the
InSync Trainer asked her to write in the name of the doctor who
would be using the software and Aponte did not understand she was
signing any contract agreement on behalf of Dr. M[a]jumder, herself,
the corporation she represents, or anyone else.
The amended answer also added an affirmative defense that Aponte “was induced
by fraudulent misrepresentations of [GreatAmerica’s] representative when she
wrote ‘Dr. M[a]jumder’ on certain documents at the request of [GreatAmerica’s]
representative or agent.” A counterclaim was also included. Further amendments
to the pleadings were offered and allowed.
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On June 25, 2018, GreatAmerica filed a motion for summary judgment on
its amended claims of breach of contract by PTMM, breach of guaranty by Aponte,
and fraudulent misrepresentation concerning both PTMM and Aponte. The
defendants resisted. In reply to the resistance, GreatAmerica asserted, “The court
should reform the [software financing] agreement to be in the names of PTMM and
Aponte to accurately reflect the true intent of the parties.”
The district court proceeded to enter its ruling without hearing. With respect
to the fraud claim, the court found factual questions remained including Aponte’s
intent at the time of forming the contract and whether GreatAmerica justifiably
relied on the signature of MRM. With respect to Aponte’s intent, the district court
wrote:
It is not for the court to assess at this juncture what facts appear more
plausible, or what Ms. Aponte knew or intended. The court believes
that there are two possible inferences to be drawn from the facts on
this issue and the Court is obligated to deny summary judgment to
the Plaintiff on that basis.
As for the issue of justifiable reliance, the court wrote,
It is not clear to the court what exactly Dr. Majumder was told, or
what he verified if they did in fact talk to him on the phone. There
was an inconsistency in the address for the doctor and that fact was
sufficiently obvious that GreatAmerica should have fully verified that
they had approval of the contract. There remains a fact question as
to whether they did so.
The court then considered the breach-of-contract claim noting, “[T]he
question before the court is whether the defendants can be held liable for a
breached contract and guaranty that were signed by them but not in their name
and on what conditions.” The court answered that question in the affirmative,
finding there was a contract, a breach of contract, and a breach of guaranty.
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Thereafter, GreatAmerica dismissed its fraud claim without prejudice. The
court awarded damages to GreatAmerica in the amount of $32,314.22, and—over
defendants’ objection—awarded attorney fees in the amount of $62,543.00.
Defendants appeal.
II. Scope and Standard of Review.
We review the grant of summary judgment in favor of GreatAmerica for
correction of errors at law. See C & J Vantage Leasing Co. v. Wolfe, 795 N.W.2d
65, 73 (Iowa 2011). Summary judgment is proper when the record reveals no
genuine issue of material fact and the moving party is entitled to judgment as a
matter of law. Iowa R. Civ. P. 1.981(3). The nonmoving party—the defendants—
are entitled to have the evidence viewed in the light most favorable to its position.
See Luana Sav. Bank v. Pro-Build Holdings, Inc., 856 N.W.2d 892, 895 (Iowa
2014). “Where reasonable minds can differ on how an issue should be resolved,
a fact question has been generated, and summary judgment should not be
granted.” Wolfe, 795 N.W.2d at 73. “[O]ur review is limited to whether a genuine
issue of material fact exists and whether the district court applied the correct law.”
Id.
III. Discussion.
On appeal, the defendants assert the court erred in finding no genuine issue
of material fact existed with respect to the breach-of-contract and breach-of-
guaranty claims. We agree.
GreatAmerica hangs its hat on this exchange in Aponte’s deposition when
asked what her intent was by ordering the software on May 21, 2015:
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Q. [W]as it your intent at that time to enter into some sort of a
new contract to get electronic medical records? A: Yes.
Q: Was the intent to do it in the name of Personal Touch
Medical Management? A. Yes.
We note, however, that Aponte was ordering software from InSync—not
GreatAmerica. GreatAmerica is not identified by name anywhere on the term
sheet between PTMM and InSync. Moreover, the contracts the court found to be
binding are the June 6, 2015, GreatAmerica finance agreement and prefund
request. Despite its express ruling that a factual issue remained as “what Ms.
Aponte knew or intended,” the court proceeded to conclude Aponte intended to
enter a contract:
Factually, even Ms. Aponte’s version of the facts seems to be
that she entered into a contract for software that PTMM wanted to
use and that she merely noted Dr. Majumder as the provider who
would be served with the software. In that case, it was always her
intent that PTMM be bound. The document was labeled “Agreement”
and the guaranty instructs the signer to only sign if it was a personal
guarantee of the obligations under the prefund authorization.
Defendant argues that Ms. Aponte did not understand the nature of
the contract and had no intention to bind anyone to it.
....
. . . Ms. Aponte had every opportunity to know what she was
signing. Regardless of whose name she signed, she admits that she
signed a contract, she did so with the opportunity to read it before
she signed it, and doing so, she agreed to all the terms and
conditions contained in that contract.
Further Ms. Aponte accepted the software, used it for at least
nine months and made payments on it. It was Ms. Aponte and
PTMM who used the software and not Dr. Majumder’s practice or
anyone else. Where an individual accepts the benefits of a contract
she cannot avoid the obligations. Further, the payments that were
made on the contract were signed by Ms. Aponte and written as
checks from both her and from PTMM, indicating participation in the
contract. Based upon the representations of Ms. Aponte in the
contract and the payments that GreatAmerica received for
approximately nine months, the court finds that a contract does exist
between GreatAmerica and Ms. Aponte.
(Emphasis added) (citation omitted).
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The summary judgment record is not undisputed on the issue of Aponte’s
intent. In her deposition, Aponte testified she often wrote Dr. Majumder’s name
for purposes of billing, credentialing, and scheduling patients. With respect to June
6, 2015, she “wasn’t aware [she] was signing any documents. [She] was just
writing his name as the medical provider that was going to be using the software.”
With respect to paying for the software, Aponte testified:
A. At this time [June 22, 2015] I was still looking at the invoice
as InSync EMR system, and I did not—at this time did not know what
GreatAmerica had to do with Insync, but I just—(Interruption by court
reporter.)
A. —I just viewed it as an invoice from InSync.
Q. Even though it says at the top GreatAmerica Financial
Services? A. Yes, because the description is InSync EMR, and
again, I was not aware that I was in a lease contract with
GreatAmerica.
Q. And again, the June 6 agreements do state GreatAmerica
at the top of those, Exhibits 2 and 3? A. Yes, I see it.
Q. So were you concerned at all that you received an invoice
from GreatAmerica in June of 2015 if you didn’t think you were
dealing with a company from Iowa? A. No. I didn’t think I was dealing
with anyone from GreatAmerica.
Q. In fact, you paid the invoices? A. Yes. I paid it because
we were using InSync and InSync was what I was given as a
description in the invoice, and that’s what I was aware I was paying.
Because GreatAmerica has not proved a breach of contract as a matter of
law, we reverse and remand for further proceedings. In addition, because
summary judgment was improperly granted, we vacate the award of attorney fees.
REVERSED AND REMANDED.
May, J., concurs specially; Greer, J., concurs in part and dissents in part.
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MAY, Judge (concurring specially).
I believe we should reverse for three reasons. First, we generally enforce
written contracts as they are written. Iowa R. App. P. 6.904(3)(n); see Smith v.
Stowell, 125 N.W.2d 795, 799 (Iowa 1964) (noting our reluctance to “remake”
contracts). The contract at issue is GreatAmerica’s “Software Finance Agreement”
(Agreement). As Aponte and PTMM correctly argue, “The plain language of the
[Agreement] did not” mention Aponte or PTMM. Its words placed no obligation on
Aponte or PTMM. So, as it is written, the Agreement cannot support the judgment
against Aponte and PTMM.
Second, at this summary-judgment stage, I do not think we should reform
the Agreement to place obligations on Aponte and PTMM. See Iowa R. App.
P. 6.904(4)(k) (defining the limited circumstances under which reformation can be
granted); see also Kansas v. Nebraska, 135 S. Ct. 1042, 1061 (2015) (noting
“courts should hesitate, and then hesitate some more, before modifying a contract,
even to remove an inadvertent flaw”). Reformation could be available if (1) the
written contract—the Agreement—failed to reflect the parties’ real agreement
because of (2) “mistake by one party and fraud or inequitable conduct by the other.”
Gouge v. McNamara, 586 N.W.2d 710, 713 (Iowa Ct. App. 1998). As the majority
correctly observes, however, there is record evidence Aponte only intended to
enter a contract with InSync—not with GreatAmerica. Moreover, the record is
mixed as to whether Aponte tried to deceive GreatAmerica—and, therefore,
engaged in “fraud or inequitable conduct”—when she wrote Dr. Majumder’s name
on the Agreement. There is record evidence Aponte believed she was merely
identifying Dr. Majumder as a provider for whom the software would be used.
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While her story may seem thin, its truth or falsity cannot be determined from this
paper record.
Finally, at least under these facts, I am not convinced ratification can
substitute for reformation. I found no reported decision in which ratification has
been used to add new obligors—like PTMM and Aponte—whom the original
written contract did not identify as obligors. Cf. Life Inv’rs Ins. Co. of Am. v. Estate
of Corrado, 838 N.W.2d 640, 642 (Iowa 2013) (addressing the question of whether
a party ratifies a contract containing the party’s signature that was executed by an
unknown person when the party does not object to the contract or challenge the
signature and accepts benefits and obligations under the contract). As far as I can
tell, that is not what happened in the cases cited by GreatAmerica. See
GreatAmerica Leasing Corp. v. Wahoo Prods. of Florida, Inc., No. 09-CV-137-
LRR, 2011 WL 1559935, at *9 (N.D. Iowa Apr. 21, 2011) (granting judgment
against defendant Wahoo on lease agreement and addendum to which Wahoo
was a party); GreatAmerica Leasing Corp. v. Davis-Lynch, Inc., No. 10-CV-13-
LRR, 2011 WL 167248, at *1, *9 (N.D. Iowa Jan. 19, 2011) (granting judgment
against defendant Davis-Lyncy on “C/CAMP Agreements” to which Davis-Lynch
was a party); Wells Fargo Fin. Leasing, Inc. v. Piggie Park Enters., Inc., No. 3:09-
1752-JFA, 2010 WL 500454, at *3 (D.S.C. Feb. 5, 2010) (granting judgment
against defendant Piggie Park on “Order Agreement and Lease Agreement” to
which Piggie Park was a party); Affiliated Corp. Servs. v. Englewood Cmty. Health
Org., Inc., No. 98 C 7420, 1999 WL 652027, at *1, *4 (N.D. Ill. Aug. 20, 1999)
(granting judgment against defendant ECHO on lease agreement to which ECHO
was a party).
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To recap: the words of the Agreement did not obligate Aponte or PTMM;
the current record does not allow us to reform the Agreement; and I do not think
ratification can substitute for reformation. So I believe the judgment against
Aponte and PTMM should be reversed.
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GREER, Judge (concurring in part and dissenting in part).
I respectfully dissent in part; I would affirm the district court and grant
GreatAmerica summary judgment against PTMM but not Aponte. Under the
record provided to us, even though Aponte only signed the name of the customer
who ultimately would benefit from the software services on the GreatAmerica
agreement, by its actions, PTMM ratified and agreed to be bound to the agreement
for such software. Ratification of that contract occurred when PTMM accepted the
software and paid GreatAmerica for the software over many months. We have no
similar record as to Aponte or that she agreed to be personally liable as well.
While the majority opines that the trial court ruling provided a hurdle to
summary judgment, I disagree. The majority highlights the contradiction that the
district court denied summary judgment on the fraud claim because “a factual issue
remained as [to] ‘what Ms Aponte knew or intended,’” yet granted summary
judgment on the contract claim. A factual dispute as to an element of one claim
does not always preclude summary judgment on another claim. Here
GreatAmerica raised a breach-of-contract claim and a fraud claim. The district
court rejected summary judgment on the fraud claim citing a factual issue related
to Aponte’s fraudulent intent. The district court explained that there were “two
possible inferences to be drawn from the facts on this issue.” (Emphasis added.)
“This issue” in the fraud claim is Aponte’s intent to deceive. Spreitzer v. Hawkeye
State Bank, 779 N.W.2d 726, 735 (Iowa 2009) (noting one element of fraud
requires proof that “the defendant intended to deceive the plaintiff”). As to that
legal issue—fraud—the court believed that although Aponte asserted she did not
intend the writing to be a signature, the court believed the two inferences were
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“either it was merely the name of the physician associated with the practice or it
was intended to be her signature.” Aponte and PTMM contended this factual
conflict in the fraud claim prohibited summary judgment in the contract claim. I
disagree because Aponte’s intent to deceive is not determinative of the contract
claim under these facts.
Turning to the contract claim with PTMM, GreatAmerica was required to
prove:
(1) the existence of a contract; (2) the terms and conditions of the
contract; (3) that it has performed all the terms and conditions
required under the contract; (4) the defendant’s breach of the
contract in some particular way; and (5) that plaintiff has suffered
damages as a result of the breach.
Molo Oil Co. v. River City Ford Truck Sales, Inc., 578 N.W.2d 222, 224 (Iowa
1998). The majority concedes that, on behalf of PTMM, Aponte said,
Q. [W]as it your intent at that time to enter into some sort of a
new contract to get electronic medical records? A. Yes.
Q. Was the intent to do it in the name of Personal Touch
Medical Management? A. Yes.
But the issue preventing summary judgment for the majority is that Aponte
maintains she was unaware she was signing the contracts with GreatAmerica for
software. Even so, we agree (1) PTMM/Aponte wanted software for her doctor
clientele, (2) that clientele included Dr. Majumder, (3) Aponte agreed she placed
Majumder’s name on the document to identify him as a service provider of PTMM,
(4) Aponte confirmed she had no authority to bind Majumder on the document,
(5) PTMM wanted to purchase InSync software, (6) PTMM received and utilized
InSync software, (7) PTMM made monthly payments to GreatAmerica for InSync
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software, and (8) PTMM utilized InSync software until it stopped paying the
GreatAmerica invoices for the software.
Simply put, the question is: Can Aponte bind her company to a contract she
has not signed while reaping the benefit of the deal? While Aponte did not sign
her name on the GreatAmerica Software Finance Agreement, she did place a
signature on that agreement. The argument she did not read the agreement
cannot win the day.
[A] party is charged with notice of the terms and conditions of a
contract if the party is able or has had the opportunity to read the
agreement. A party is also bound by a document the party signs
even though the party has not expressly accepted all of the contract
provisions and is not aware of them.
Advance Elevator Co. v. Four State Supply Co., 572 N.W.2d 186, 188 (Iowa Ct.
App. 1997).
Even if we agree Aponte did not sign the agreement on behalf of PTMM,
ratification may still occur. “Signature is not always essential to the binding force
of an agreement. If accepted and acted upon by the parties as a binding
engagement, mutuality appears without formal signature. This is elementary.”
Henderson v. Henderson, 114 N.W. 178, 179 (Iowa 1907). PTMM made nine and
one-half total payments to GreatAmerica for the software product. Then PTMM
breached the agreement by failing to make all payments. And because of that,
GreatAmerica proved it was damaged. The district court found Aponte had ratified
the contract by “accept[ing] the software, us[ing] it for at least nine months[,] and
ma[king] payments on it.”
Our supreme court has said, “Ratification is the affirmance by a person of a
prior act which did not bind him but which was done or professedly done on his
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account, whereby the act, as to some or all persons, is given effect as if originally
authorized by him.” Abodeely v. Cavras, 221 N.W.2d 494, 502 (Iowa 1974)
(quoting Restatement (Second) of Agency § 82, at 210 (1958)). “There are two
types of ratification: (1) ratification by the principal of the signature of an agent, and
(2) ratification by an individual who had the power to avoid the contract but affirmed
the contract.” Life Inv’rs Ins. Co. of Am. v. Estate of Corrado, 838 N.W.2d 640,
645 (Iowa 2013). Whether the party “expressly or implicitly authorized a person to
sign on his behalf is not a necessary fact to determine” ratification of a contract
since a principal may ratify the act of an agent. Id. at 644. “In other words, if
ratification exists a contract exists and the action is on the contract.” Id.
As the special concurrence points out, our case law on ratification offers no
case directly on point. While I agree that the typical ratification case addresses
whether a signing party is bound under a contract, I disagree that the same
premise cannot apply under these unusual facts. The core of a ratification
argument is that someone denies they signed or denies knowledge of the contract
itself yet accepted the benefits of the contract. In my analysis of these undisputed
facts, ratification occurred in this case. Many of our cases involve the first type of
ratification—ratification by the principal of the signature of an agent. See, e.g.,
Mayrath Co. v. Helgeson, 139 N.W.2d 303, 306–09 (Iowa 1966) (holding
ratification occurred where corporation knew employee accepted settlement
agreement and corporation accepted benefit of contract); In re Johnson’s Estate,
232 N.W. 282, 286–88 (Iowa 1930) (holding ratification occurred where cashier of
bank acted as agent for the bank).
19
But the cases addressing the second type of ratification—ratification by an
individual who had the power to avoid the contract but affirmed the contract—
suggest failure to act is fatal.2 Aponte had the power to avoid the contract with
GreatAmerica yet affirmed the terms by purchasing software, accepting software,
and paying for software until the breach. The subsequent conduct is the ratification
of the contract. Ratification of the contract under this record occurred and allows
summary judgment as to the contract between GreatAmerica and PTMM.
Aponte, on behalf of PTMM, cannot save the day here. I would affirm the
summary judgment ruling on the contract claim only as to PTMM and enter
judgment accordingly.
2 In French v. Northwestern Laundry, 107 N.W. 430, 431 (Iowa 1906), the court
found: “If the effect of this was to perpetrate a fraud on him, he should have at
once announced his purpose to rescind, he should have refused to turn over his
property and take the stock in payment. Not having done so then he cannot be
heard to do so now.” See also Grymes v. Sanders, 93 U.S. 55, 62 (1876) (stating
a party benefitting from a contract “is not permitted to play fast and loose. Delay
and vacillation are fatal to the right which had before subsisted”). Likewise in
Windahl v. Vanderwilt, 203 N.W. 252, 255 (Iowa 1925), the court confirmed, “It is
elementary that a ratification of such an act must include the intention to give
sanction and validity to the act, which would not be binding upon him except for
his subsequent conduct in giving assent or confirmation thereto.”