R & G ELECTRIC, INC., Plaintiff-Appellee, vs. HARLAN AND JULIE WEYDERT, husband and wife, Defendants-Appellants.
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IN THE COURT OF APPEALS OF IOWA
No. 7-854 / 07-0156
Filed November 29, 2007
R & G ELECTRIC, INC.,
Plaintiff-Appellee,
vs.
HARLAN AND JULIE WEYDERT,
husband and wife,
Defendants-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Kossuth County, Don E. Courtney,
(summary judgment) and Joseph J. Straub (trial), Judges.
Defendants contend district court erred when it dismissed their
counterclaim on summary judgment. AFFIRMED.
David M. Nelsen of Nelsen Law Office, Mason City, for appellant.
Kevin J. Driscoll and Eric G. Hoch of Finley, Alt, Smith, Scharnberg, Craig,
Hilmes & Gaffney, P.C., Des Moines, for appellee.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
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HUITINK, P.J.
I. Background Facts and Prior Proceedings
On January 8, 2004, R & G Electric filed a mechanic’s lien in the amount
of $52,346.55 against property owned by Harlan and Julie Weydert for materials
and labor furnished pursuant to a contract to install one grain bin and to relocate
two smaller grain bins on the Weyderts’ property.
Shortly thereafter, R & G filed a petition to foreclose the lien, and then filed
an amended petition asserting damages for breach of written contract, breach of
oral contract, breach of implied contract, quantum meruit, and unjust enrichment.
The Weyderts answered by denying the existence of any written contract,
oral contract, or implied contract and also denying the claims for quantum meruit
and unjust enrichment. The Weyderts also noted the statute of frauds as an
affirmative defense and set forth the following counterclaims or setoffs:
For Counterclaims or setoffs to the allegations of Plaintiff’s
Petition, Defendants . . . state:
48. Any work performed was inadequate and inferior
thereby causing damages to the Defendants.
49. Any work performed was untimely and thereby causing
damages to the Defendants.
R & G filed a motion for summary judgment requesting the court to enter
an order establishing the mechanics lien and to enter an order that the Weyderts
may not recover consequential damages in the form of alleged crop losses on
their counterclaim.
The Weyderts filed a resistance to the motion for summary judgment and
R & G filed a reply to the Weyderts’ resistance stating, in pertinent part:
[T]he undisputed evidence established that Defendants have
repeatedly denied and continue to deny the existence of any
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contractual relationship whatsoever with plaintiff. They cannot now
at the same time assert a counterclaim for breach of contract and
consequential damages.
And in fact, defendants’ have not
asserted a counterclaim based on breach of contract. Therefore,
as a matter of law, there can be no recovery by defendants for any
alleged consequential damages arising from a breach of contract.
Further, defendants have no right to any recovery on a
counterclaim based on a negligence theory as the economic loss
doctrine bars defendants’ counterclaim for economic damages
based on negligence.
The court held an unrecorded hearing on the motion and entered a written
ruling denying R & G summary judgment on its request to enter an order
establishing the mechanic’s lien. The court based this decision on the Weyderts’
denial of the existence of any contract and their claims that the conversations
surrounding the grain bins consisted of mere negotiations that never materialized
into a contractual relationship. However, in light of the Weyderts’ claim that there
was no contract, the court proceeded to analyze the Weyderts’ counterclaim as a
negligence claim, rather than a contract claim. Because the Weyderts sought
only economic losses on their counterclaim, the court found they were barred
from recovering damages under a tort theory, and therefore dismissed the
Weyderts’ counterclaim for damages.
See Nebraska Innkeepers, Inc. v.
Pittsburgh-Des Moines Corp., 345 N.W.2d 124, 126 (Iowa 1984) (“The wellestablished general rule is that a plaintiff who has suffered only economic loss
due to another's negligence has not been injured in a manner which is legally
cognizable or compensable.”). The Weyderts did not file any post-ruling motion
challenging the court’s conclusion that their counterclaim was based on
negligence, rather than contract. The Weyderts also did not seek to amend their
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counterclaim after the summary judgment ruling to assert a claim for breach of
contract.
The matter proceeded to a bench trial. The court found the parties had
entered into an oral contract and then amended the original contract with a
written amendment. The court determined that Harlan breached the contract by
not making his final payment and that R & G also breached the contract when it
performed some of the work in an unsatisfactory manner. The court entered an
order entering judgment against Harlan Weydert in the amount of $35,352.60
with an additional judgment of $13,434.96 for R & G’s attorney fees.
The Weyderts now appeal, claiming the court erred when it dismissed
their counterclaim on summary judgment and erred when it did not further reduce
the judgment for other problems associated with R & G’s alleged failure to
perform the work in a satisfactory manner.
II. Scope of Review
An action to enforce a mechanic’s lien is in equity. Iowa Code § 572.26
(2005). Therefore our review is de novo. Iowa R. App. P. 6.4; W.P. Barber
Lumber Co. v. Celania, 674 N.W.2d 62, 63-64 (Iowa 2003). However, even in an
equity case, we do not find facts de novo in an appeal from a ruling on summary
judgment. Howard v. Schildberg Constr. Co., 528 N.W.2d 550, 552 (Iowa 1995).
Accordingly, our review of the court’s ruling on the motion for summary judgment
is on error. Id.
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III. Merits
A. Summary Judgment
In determining whether summary judgment was proper, we examine the
record in the light most favorable to the nonmoving party and draw all legitimate
inferences the evidence bears in order to establish the existence of questions of
fact. Mason v. Vision Iowa Bd., 700 N.W.2d 349, 353 (Iowa 2005).
At the time of the summary judgment hearing, Harlan Weydert denied that
he had a contract with R & G. One of the issues before the court at the time of
the unrecorded hearing was R & G’s claim that the counterclaim should be
dismissed because the Weyderts had denied the existence of any contract.
Presumably, if the Weyderts disagreed with this assertion they would have
challenged it at the time of the summary judgment hearing and told the court that
there was some form of contract between the parties. However, the district court
ruling does not indicate that the Weyderts ever challenged this statement or
claimed that there was some form of contract between the parties. Instead, the
court states on numerous occasions that the Weyderts deny the existence of any
contract between the parties and that they “steadfastly adhere to the position that
at no time was there a contract with R & G.” The district court relied on this
denial to reject R & G’s motion to establish a valid mechanic’s lien and also relied
on this denial to bar the Weyderts’ counterclaim.
Now, on appeal, the Weyderts claim there were contracts between the
parties concerning all three bins.
Therefore, the Weyderts contend their
counterclaim was based on contract principles and the district court erred when it
dismissed the counterclaim on summary judgment.
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Upon our review of the record available to the court at the time of the
summary judgment hearing, we agree with the court’s conclusion that the
Weyderts “consistently and unwaveringly” denied the existence of any contract at
the time of the summary judgment hearing. Accordingly, we find the district court
was correct when it concluded the Weyderts’ ambiguous counterclaim was based
in tort, not in contract, and dismissed their counterclaim on summary judgment.
We find no error here.
B. Damage Issues
The Weyderts also contend the district court erred when it failed to rule on
all damage issues. The Weyderts claim the district court should have further
reduced the judgment for allegedly inferior electrical work and inferior
workmanship on the various bins.
1. Damages for Electrical Work
In support of his damage claim for the electrical work, the Weyderts point
to testimony from their expert witness describing how it would cost approximately
$15,473.78 to correct and repair all the electrical work violations involved with the
bins. The record does not provide a list of what parts and costs added up to this
general cost figure. A key fact in this case is that the work performed by R & G
involved merging old electrical equipment with new electrical equipment. The
expert witness was unable to explain what portion of his estimated costs related
to updating the existing electrical components on the old bins and what portion
related to repairing work improperly done by R & G. Because there is insufficient
information in the record to describe with any specificity what costs were
attributable to R & G’s allegedly inferior work, as opposed to upgrading existing
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electrical components, we find the court did not err when it chose not to offset the
plaintiff’s judgment for these claimed damages.
2. Inferior Workmanship
One expert witness set forth a laundry list of problems with the three bins
allegedly attributable to R & G’s poor workmanship.
R & G refuted these
allegations by pointing out that many of these problems came as a result of the
Weyderts’ decisions to cut costs by foregoing recommended measures to
stabilize the bins. For example, the Weyderts opted to move the old bins to a
location where they would rest on a pre-existing concrete pad. Because the pad
was not designed to support bins of that size, the expert witness testified that one
bin was beginning to bend and therefore must be moved to an appropriate
concrete pad.
The court did not offset the judgment for all repair costs set forth by the
Weyderts’ expert witness. Instead, it only reduced the judgment by $7626 for
costs associated with fixing the stairs on the outside of one of the bins and
associated with reinstalling proper bolts in the bins. Upon our review of the
evidence pertaining to the other alleged damages, we agree with the court’s
decision not to reduce the judgment further.
See McDonald v. Welch, 176
N.W.2d 846, 849 (Iowa 1970) (“In mechanics’ lien cases, involving as they do
numerous charges and counter charges which depend entirely on the credibility
of the parties, we have frequently held the trial court is in a more advantageous
position than we to put credence where it belongs.”).
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C. Extraneous Material in the Appendix
The supreme court has directed our court to consider the issue of the
appendix costs on appeal. The Weyderts allege R & G’s designation of appendix
contained extraneous material. Under Iowa Rule of Appellate Procedure 6.15(3),
costs may be assessed for appendix materials which are unnecessary or have
no bearing on the issues appealed.
Upon our review of the disputed portions of the record, we conclude the
disputed pages do not constitute extraneous material and therefore we do not
shift any costs pursuant to rule 6.15(3).
IV. Conclusion
Having considered all issues raised on appeal, whether or not specifically
addressed in this opinion, we affirm the district court on all issues.
AFFIRMED.
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