SAYDEL COMMUNITY SCHOOL DISTRICT, Plaintiff-Appell ee/Cross-Appellant, vs. THE DENIS DELLA VEDOVA, INC., Defendant-Appellant/Cross-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 6-1018 / 06-0070
Filed April 25, 2007
SAYDEL COMMUNITY SCHOOL
DISTRICT,
Plaintiff-Appellee/Cross-Appellant,
vs.
THE DENIS DELLA VEDOVA, INC.,
Defendant-Appellant/Cross-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Arthur E. Gamble
(summary judgment) and Richard G. Blane II (trial), judges.
A general contractor appeals from the district court’s ruling in the school
district’s favor on the district’s petition for declaratory judgment arising from a
school remodeling project. AFFIRMED.
Stephen Marso of Whitfield & Eddy, P.L.C., West Des Moines, for
appellant.
Randall Stefani of Ahlers & Cooney, P.C., Des Moines, for appellee.
Heard by Zimmer, P.J., and Miller and Baker, JJ.
2
ZIMMER, P.J.
Denis Della Vedova, Inc. (DDVI), a general contractor, appeals from the
district court’s ruling in the Saydel Community School District’s (District) favor on
the District’s petition for declaratory judgment arising from a middle school
remodeling project. We affirm the district court.
The District hired DDVI to perform general contractor duties for a
renovation project at Woodside Middle School.
The District hired FEH
Associates, Inc. (FEH) as the project architect. FEH designated Mark Weiser as
the architect in charge of the project.
DDVI divided the project into two
construction phases. Phase I called for the addition of administrative offices to
the middle school, and Phase II involved remodeling restrooms and the cafeteria
in the middle school. Work on Phase I commenced in the fall of 2002.
In May 2003 Weiser informed DDVI the woodwork in the administrative
board room needed to be removed and replaced. DDVI contended removal was
unnecessary and maintained it could repair any defects.
Weiser repeatedly
asked DDVI to remove and replace the woodwork, but DDVI eventually left the
project prior to completion.
Disputes also arose during Phase II of the project regarding cafeteria wall
tile and wall and floor tile in the restrooms. Weiser told DDVI its subcontractor’s
installation was unacceptable, and he demanded complete removal and
replacement of all wall and floor tile in the restrooms. DDVI refused to replace
the tile and left this aspect of the project prior to completion as well. DDVI left the
project for good in late September or early October 2003.
3
The District filed a petition for declaratory judgment and retained
$163,886.22 for completion of the project. The petition indicated the District had
received an Iowa Code chapter 573 (2003) claim from a subcontractor, total
repair bids for completing the project ranged from $72,000 to $88,000, and the
architect estimated the cost to complete remaining punch list items totalled
$28,000.
In addition, the District maintained DDVI was liable for additional
architectural costs under the contract.
DDVI filed a motion to stay the action and compel arbitration to determine
whether DDVI met construction standards. The district court denied the motion
and agreed with the District the case involved a dispute over aesthetics. 1 DDVI
later filed a motion in limine attempting to prevent the District from introducing
evidence of industry construction standards at trial due to the District’s stance in
response to its motion to stay. The district court denied the motion on the basis
the industry construction standards also related to aesthetics.
DDVI filed an answer and a counterclaim alleging the District could only
retain $7186.28 and its refusal to turn over the rest of the retained funds was a
breach of contract and a violation of chapter 573. 2 DDVI also sought attorney
fees. Later DDVI filed a motion for summary judgment contending the District
had to remit $163,886.22 to DDVI plus attorney fees under Midland Restoration
Co. v. Sioux City Community School District, No. 02-0625 (Iowa Ct. App. May 29,
2003). The district court denied the motion for summary judgment. The court
1
Under the contract, disputes over aesthetics were specifically listed as an exception to
compelled arbitration.
2
DDVI claimed it had one chapter 573 claim on file for $3593.14, so the District could
only retain double the amount of the subcontractor’s claim.
4
determined Midland was not controlling legal authority under Iowa Rule of
Appellate Procedure 6.14(5). In addition, the court found the Midland court did
not analyze whether section 573.16 created a private cause of action for a
general contractor against a public corporation that withholds payments. The
court also found Midland is not authority for the proposition that a public
corporation must pay a contractor for work that was not performed in accordance
with contract specifications. The court rejected DDVI’s motion to reconsider its
ruling and disagreed with DDVI’s contention that rule 6.14(5) violates the “judicial
power clause” of Article V, section 1 of the Iowa Constitution.
The matter was tried to the district court. Pursuant to the mutual requests
of the parties, the trial court personally inspected the premises. After carefully
considering the evidence, the court ruled in favor of the District on all but one of
its claims.
The court denied the District’s claim for an allowance to replace
certain solid-surface materials in the board room and restroom areas. The court
concluded the District could retain funds up to $44,440 for board room
woodwork, $24,007 for restroom tile work, $3100 for cafeteria tile work, $17,400
for remaining punch list items, $11,399.92 for past architectural invoices if paid
by the District, and future architectural fees up to $5495. The court ordered that
any remaining balance be paid to DDVI.
DDVI appealed and has raised the following arguments: (1) Iowa Rule of
Appellate Procedure 6.14(5) 3 is unconstitutional, so the district court erred in
denying DDVI’s motion for summary judgment; (2) the court erred in allowing
3
Iowa Rule of Appellate Procedure 6.14(5) states: “An unpublished opinion of the Iowa
appellate courts or of any other appellate court may be cited in a brief; however,
unpublished opinions shall not constitute controlling legal authority.”
5
construction standards evidence at trial; (3) the court erred in ruling DDVI had not
rendered substantial performance under the contract terms; (4) the court erred in
allowing DDVI’s performance to be judged by the architect, who allegedly acted
in bad faith; (5) the court erred in finding DDVI liable for continuing architectural
fees after it withdrew from the project; and (6) the court erred in failing to
determine it would not constitute economic waste for DDVI to replace woodwork
and tile rather than attempt repairs. The District cross-appealed and contends
the court erred in failing to allow it to retain funds adequate to replace solid
surface material when the material did not conform to the contract requirements.
DDVI
contends
unconstitutional.
Iowa
Rule
of
Appellate
Procedure
6.14(5)
is
Therefore, the contractor argues the district court erred in
denying its motion for summary judgment, which was based on an allegedly
controlling unpublished opinion.
Upon our review, we find it unnecesaary to
address the constitutional issue raised by DDVI.
We reach this conclustion
because we do not believe Midland, even if published, would require a different
result than that reached by the district court. As we have already mentioned, the
Midland court was not presented with and did not address the question of
whether section 573.16 created a private cause of action for a general contractor
against a public corporation that withholds payments; the Midland court only
addressed whether Iowa’s competitive bidding law had been violated and
whether the defendant’s agent in that case had authority to order the work at
issue. Midland, No. 02-0625, 3-6. Accordingly, we reject this assignment of
error and now turn to DDVI’s remaining claims.
6
The court found the deficiencies in the board room woodwork related to
aesthetic effect. 4 The court determined Weiser’s decision to remove and replace
the woodwork was consistent with the intent expressed in the contract
documents and DDVI did not establish his decisions were made in bad faith. The
court concluded DDVI’s installation of the woodwork did not conform to the
contract. However, the court determined DDVI was not responsible for problems
with solid surface material used on the board room table and in the restrooms
because the product and color were selected by Weiser. The court found the tile
problems were noticeable even to its “untrained eye” during the inspection, and
the court concluded the problems were related to aesthetics and subject to
Weiser’s decisions. Again, the court found Weiser’s decision to reject the tile
installation was not contrary to the contract documents. The court concluded
DDVI had not substantially complied with the contract as to either phase, so it
remained liable for continuing architectural expenses under the contract terms.
The court concluded any subcontractor chapter 573 claims were untimely and
dismissed DDVI’s counterclaim because the contractor was not a proper claimant
under that chapter. Because we agree with the district court’s findings of fact,
conclusions of law, and decision, we affirm. See Iowa Ct. R. 21.29.
AFFIRMED.
4
The contract documents state: “The Architect’s decisions on matters relating to
aesthetic effect will be final if consistent with the intent expressed in the Contract
Documents.”
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