JEROME M. SIMON d/b/a J.M. SIMON CONSTRUCTION CO., Plaintiff-Appellant, vs. RITCHIE AVENARIUS, Defendant-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-545 / 08-1874
Filed August 19, 2009
JEROME M. SIMON d/b/a
J.M. SIMON CONSTRUCTION CO.,
Plaintiff-Appellant,
vs.
RITCHIE AVENARIUS,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Margaret L.
Lingreen, Judge.
Jerome Simon appeals from judgment entered in this contract action.
AFFIRMED.
David L. Hammer, Angela C. Simon, and Susan M. Hess of Hammer,
Simon & Jensen, Dubuque, for appellant.
Ritchie Avenarius, Dubuque, appellee pro se.
Considered by Vaitheswaran, P.J., and Potterfield and Mansfield, JJ.
2
MANSFIELD, J.
Jerome Simon appeals from the judgment entered in this contract action
following a bench trial. Because we conclude the district court committed no
error of law and its factual findings are supported by substantial evidence, we
affirm the judgment below.
I. Background Facts and Proceedings.
Ritchie Avenarius owns an undeveloped, eighty-five-acre parcel of real
estate in Dubuque County that he uses for recreational purposes. The parcel
has a creek running through it. Although the terrain is generally hilly, the area of
the creek is flat, with hillsides on both sides of the creek.
Avenarius was
interested in constructing a pond on the property.
Jerome Simon d/b/a J.M. Simon Construction Company (Simon) is
engaged in the business of earth moving.
Simon and Avenarius discussed
constructing a pond on Avenarius‟s property. Simon agreed to dig the pond for
$10,000. They agreed that Avenarius would have two years to pay for the pond.
Simon began construction of the pond in December 2002 and completed
the project in early January 2003. The pond was approximately 150 to 175 feet
wide and 15 feet deep. Simon and Avenarius also agreed that Simon would
install pipes at three separate locations in the roadway going to the pond for
drainage purposes. The cost of installing the pipes was $250. In January 2003
Simon billed Avenarius the sum of $10,250 for the pond and pipes. Of that bill,
Avenarius subsequently paid $2000.
While the pond was being constructed, Avenarius told Simon he had an
opportunity to sell black dirt to another entity. Simon informed Avenarius that
3
there would not be enough black dirt available from where the pond was being
excavated. According to Avenarius, the two met at the parcel in December 2002
to identify areas where black dirt could be excavated for sale. An area north of
the pond was identified. Simon and Avenarius agreed that Simon would strip dirt
from the area north of the pond and this site would become a second pond.
Simon agreed to strip the dirt for eighty-five cents per yard. Simon would be paid
after Avenarius sold the dirt.
In December 2003 the Iowa Department of Natural Resources stopped all
excavation work on the property. Simon billed Avenarius for the excavation work
done to that point. The bill was $18,000 for 21,000 cubic yards of dirt excavated.
According to Avenarius, the amount of the bill surprised him, and he met with
Simon on the property. Avenarius claims he was “shocked” and “outraged” to
learn that most of the dirt, or approximately 16,000 cubic yards, had actually
been removed from the southwest area of the property, away from the two
ponds. Avenarius testified that Simon “never had permission to go back there
and dig that or excavate that area.”
According to Avenarius, he and a friend returned about 10,000 cubic yards
of the black dirt that had been removed from the southwest area. They had to
spend about 300 person-hours doing this restoration work. The friend did not
charge Avenarius for his assistance. Avenarius also sold to third parties about
6000 cubic yards of the excavated dirt from the southwest area, receiving about
$13,000. Any remaining dirt from that area is still in piles today.
Meanwhile, in 2003, a problem developed with the original pond not
retaining water. Avenarius discussed the leak with Simon, who suggested using
4
bentonite (a clay-like substance that absorbs water) to stop the leak. Avenarius
purchased and dumped five to six bags of bentonite where he believed the
leakage was occurring.
The pond continued to leak, and Avenarius again
contacted Simon. Simon offered to fix the leak, but according to Avenarius, he
made it clear that he would charge Avenarius for doing so. Later, the parties had
an argument, and Avenarius asked Simon to leave the property.
In 2005 Avenarius determined the location of the leak in the pond. He
poured an additional fifteen bags of bentonite into the pond and expended
approximately twenty hours of his own labor with a backhoe to correct the
problem.
On November 29, 2007, Simon filed this action alleging claims for breach
of contract, unjust enrichment, and quantum meruit.
Avenarius answered,
asserting several defenses including defective workmanship and excavation
without consent.
Avenarius also counterclaimed for damage to his property
caused by the excavation on the southwest portion of the parcel that occurred
without his consent.
The matter proceeded to trial before the court. In its judgment order, the
district court found the parties did have oral agreements for Simon to construct
the first pond at the cost of $10,000, to install pipes under the roadway at a cost
of $250, and to excavate the site north of the pond at a cost of eighty-five cents
per cubic yard. The court found 5000 cubic yards of dirt were excavated from
this northern site for a total cost to Avenarius of $4250. The court concluded the
parties did not contract for any of the excavation that occurred on the southwest
portion of the parcel. With respect to the first pond, the court concluded Simon
5
was entitled to recover the contract price for the first pond ($10,000), plus the
piping expense ($250), less the repair costs to correct the pond‟s failure to hold
water ($1800).1 The court further concluded Simon was entitled to recover the
contract price of $4250 for the second pond. The court credited Avenarius $2000
for monies previously paid to Simon. Thus, the district court found Simon was
entitled to recover $10,700 on his petition ($10,000 plus $250 plus $4250 minus
$1800 minus $2000).
On Avenarius‟s counterclaim, the court concluded Simon committed a
trespass upon the southwest area of Avenarius‟s property. The court determined
the cost to restore the property would be $13,600 (returning 16,000 cubic yards
of excavated soil at eighty-five cents per yard). Because Avenarius had received
$13,000 from the sale of dirt from this area, the court offset the dirt sales against
the cost of restoration and concluded Simon owed Avenarius $600. Judgment
was entered in favor of Simon for $10,700 and in favor of Avenarius for $600.
Simon appeals.
II. Scope and Standard of Review.
Our scope of review is determined by how the case was tried in the district
court. Simon claims our review is de novo. He asserts this case was tried in
equity, but also asserts review is de novo on the theory that unjust enrichment is
rooted solely in equitable principles. See Iowa Waste Sys., Inc. v. Buchanan
Co., 617 N.W.2d 23, 30 (Iowa Ct. App. 2000).
1
Simon testified that rental of a backhoe costs eighty dollars per hour. Avenarius
testified he spent twenty hours with a backhoe repairing the pond. In addition, Avenarius
poured in approximately twenty bags of bentonite, which cost ten dollars per bag.
6
The essential character of a cause of action and the relief it seeks, as
shown by the complaint, determine whether an action is at law or equity. Harding
v. Willie, 458 N.W.2d 612, 613 (Iowa Ct. App.1990) (citing Mosebach v. Blythe,
282 N.W.2d 755, 758 (Iowa Ct. App.1979)). Generally, an action on a contract is
treated as one at law. Mosebach, 282 N.W.2d at 758. If both legal and equitable
relief are demanded, the action is ordinarily classified according to what appears
to be its primary purpose or its controlling issue. Id.
This claim was filed as a law action for breach of contract, and primarily
sought damages for the breach. In the alternative, Simon sought equitable relief.
Thus, the essential character of his cause of action was at law. See Phone
Connection, Inc. v. Harbst, 494 N.W.2d 445, 448 (Iowa Ct. App. 1992) (finding
action primarily brought on a breach of contract claim was reviewed for errors at
law).
In addition, where there is uncertainty about the nature of a case, we often
look to whether the trial court ruled on evidentiary objections. Citizens Sav. Bank
v. Sac City State Bank, 315 N.W.2d 20, 24 (Iowa 1982). When a trial court does
rule on objections, it is normally the hallmark of a law trial, not an equitable
proceeding. Sille v. Shaffer, 297 N.W.2d 379, 381-82 (Iowa 1980). Here, the
district court ruled on objections. The sustaining of some evidentiary objections
precluded the admission of the evidence subject to the objection, and the record
is thus not complete for a de novo review. See Leo v. Leo, 213 N.W.2d 495,
497-98 (Iowa 1973) (explaining that in equity proceedings all evidence offered
7
must be received, any objections will be noted and the answers thereafter given
will be subject to the objection).2
We therefore conclude this action was tried at law and our review is for the
correction of errors at law. Iowa R. App. P. 6.4. Findings of fact in a law action
are binding upon an appellate court if they are supported by substantial
evidence. Iowa R. App. P. 6.14(6)(a). Evidence is substantial if a reasonable
person would accept it as adequate. Chrysler Fin. Co. v. Bergstrom, 703 N.W.2d
415, 418 (Iowa 2005). In determining whether substantial evidence exists, we
view the evidence in the light most favorable to the district court‟s judgment. Id.
We review evidentiary issues for an abuse of discretion. McElroy v. State, 637
N.W.2d 488, 493 (Iowa 2001).
III. Discussion.
On appeal Simon raises a series of arguments. He contends the district
court erred: (1) in deducting $1800 from his recovery for the first pond because
he was willing to fix the leak himself at no cost; (2) in excluding evidence of his
“habit” of only doing excavation work as requested; (3) in not finding there was a
contract to excavate dirt in the southwest area of the property; (4) in failing to
award him damages in quantum meruit for the southwest area even assuming
there was no contract; and (5) in making a damage award to Avenarius on his
counterclaim that resulted in his being unjustly enriched.3
2
We note, too, that the district court entered a “judgment order,” not a decree. “A
„decree‟ is generally considered a final order of an equity court.” Citizens Sav. Bank,
315 N.W.2d at 24.
3
Avenarius has failed to assist this court by filing an appellee‟s brief. Thus, we will not
go beyond the ruling of the trial court in searching for a theory upon which to affirm its
decision. See Pringle Tax Serv., Inc. v. Knoblauch, 282 N.W.2d 151, 153 (Iowa 1979).
8
A. Deducting the Costs of Fixing the Leak in the First Pond.
Simon argues it was error for the court to reduce his award for the
construction of the first pond by $1800 based on Avenarius‟s cost to repair the
leak. Simon does not dispute that he bore the responsibility to correct the leak.
However, he testified he would have fixed the problem for no charge and
Avenarius refused to allow him to do so.
Yet, Avenarius testified to the
contrary—i.e., that Simon would not fix the problem unless Avenarius agreed to
pay him. Thus, the record contains substantial support for the court‟s finding.
We therefore reject Simon‟s first argument.4
B. Exclusion of “Habit” Evidence.
Simon argues that the district court erred in refusing to consider evidence
of his “habit” of excavating only where instructed. The district court concluded
the evidence, taken subject to Avenarius‟s objection, was inadmissible character
evidence or, in the alternative, irrelevant to the question of whether there had
been a meeting of the minds resulting in a contract for the excavation of the
southwest area of Avenarius‟s property.
Simon argues that the evidence should have been admitted as “habit”
evidence. See Iowa R. Evid. 5.406 (“Evidence of the habit of a person . . . is
relevant to prove that the conduct of the person . . . on a particular occasion was
in conformity with the habit or routine practice.”).
distinguishes habit from character evidence.
4
The degree of specificity
See id. cmt. (1983); see also
Simon notes that he sent various bills to Avenarius for the work he had performed
(including both the first pond and the dirt excavation) and Avenarius never objected to
them or claimed he was entitled to any deduction therefrom. We agree these facts
support Simon, but there remains substantial evidence in Avenarius‟s testimony to
support the trial court‟s finding.
9
Gamerdinger v. Schaefer, 603 N.W.2d 590, 594 (Iowa 1999) (“A habit is a
person‟s regular practice of responding to a particular kind of situation with a
specific kind of conduct. Evidence of habit that comes within this definition has
greater probative value than does evidence of general traits of character.”
(citation omitted)).
We are inclined to agree with the district court that the
proposed evidence as to Simon‟s asserted general business practice was
character evidence, which is not ordinarily admissible in a civil action. See Iowa
R. Evid. 5.404(a) (“Evidence of a person‟s character or a trait of the person‟s
character is not admissible for the purpose of proving that the person acted in
conformity therewith on a particular occasion, except” in situations not applicable
here); accord Koonts v. Farmers Mut. Ins. Ass’n, 235 Iowa 87, 94, 16 N.W.2d 20,
24 (1944).
Even if the evidence were not deemed “character” evidence, we would still
question its admissibility. In effect, Simon wants to prove he did what he was
told here because he did what he was told on other jobs. If this kind of evidence
were determined to be generally admissible, construction litigation would become
highly protracted, as parties would present evidence regarding various
construction projects other than the one actually before the court.
In any event, the trial court has wide discretion in ruling on the
admissibility of evidence. Only where there has been a clear and prejudicial
abuse of discretion will we disturb the court‟s rulings. See Blakely v. Bates, 394
N.W.2d 320, 323-24 (Iowa 1986) (noting broad discretion granted to trial court
with regard to admission of character evidence and emphasizing “that discretion
in this matter must be exercised with special care and circumspection so that
10
time is not unduly wasted with opinion and reputation testimony concerning
character”). We find no such clear and prejudicial abuse of discretion.
C. Failure to Find a Contract with Respect to the Removal of Dirt
from the Southwest Area.
Simon disputes the district court‟s finding that the parties did not have a
contract to excavate the southwest portion of Avenarius‟s land. Simon testified
that Avenarius was on site during that excavation and was aware of what was
going on, thereby establishing at least an implied-in-fact contract, if not an
express contract. In Iowa Waste Systems, 617 N.W.2d at 29, this court noted
the difference between an express contract and an implied-in-fact contract. With
the latter, the manifestation of mutual assent may be inferred from conduct or
silence, rather than from words. Id.; see also Restatement (Second) of Contracts
§§ 19(1) & 22(2), 55, 66 (1981) (noting that a manifestation of assent may be
made by acts or by failure to act, and that it may be made “even though neither
offer nor acceptance can be identified and even though the moment of [contract]
formation cannot be determined”).
It is true Simon‟s testimony might support a finding of an implied-in-fact
contract. However, Avenarius testified he did not consent to the excavation in
that southwest portion, nor did he even know it was occurring.
Moreover,
according to his testimony, Avenarius expended considerable hours attempting
to replace dirt Simon had excavated from the southwest site, which would
seemingly undermine a claim that he had desired that excavation in the first
instance.
We conclude the finding that the parties did not come to an
agreement—either express or implied—as to the southwest excavation is a
11
reasonable inference from Avenarius‟s testimony.
Accordingly, we affirm the
district court on this point as well.
D.
Failure to Award Quantum Meruit Damages for the Southwest
Area.
Simon next argues that even in the absence of an actual contract, he
should have been awarded quantum meruit damages for the excavation work he
performed in the southwest area of the parcel. Quantum meruit, as the term is
used here by Simon, involves the next step down the continuum from express
contract to non-contract theories of recovery.5 Simon claims, in other words, that
even if there was no contract, it would be unjust for Avenarius to retain the
benefits of his excavation work without compensating him for it.
The theory of quantum meruit, when it is used to refer to a quasicontractual theory of recovery, is premised on the idea that it is unfair to allow a
person
to
benefit
from
another‟s
services
when
the
other
expected
compensation. State Public Defender v. Iowa Dist. Court, 731 N.W.2d 680, 684
(Iowa 2007). The district court did not expressly rule on Simon‟s quantum meruit
claim, but impliedly rejected it in concluding Simon trespassed upon Avenarius‟s
property, which resulted in damages to Avenarius. We believe that decision is
supported by substantial evidence. A reasonable factfinder could determine the
excavation of dirt from the southwest area was not, on the whole, a benefit to
5
In Iowa Waste Systems, we characterized quantum meruit as “a particular subclass of
implied-in-fact contracts,” while noting that the term is “antiquated” and “breeds
confusion.” Iowa Waste Systems, 617 N.W.2d at 29 & n.4. Here, perhaps illustrating
that confusion, Simon uses the term in a different way than we used it in Iowa Waste
Systems. Thus, Simon employs quantum meruit terminology to refer to implied-in-law
contracts or quasi-contracts that do not involve any manifestation of mutual assent and
thus cannot be considered true contracts. Simon, in other words, uses quantum meruit
as a synonym for what we described as the “unjust enrichment” theory of recovery in
Iowa Waste Systems.
12
Avenarius, as evidenced by Avenarius‟s efforts to return much of the dirt to that
site.
E. Asserted Unjust Enrichment of Avenarius Via Trespass Ruling.
Finally, Simon contends the district court‟s judgment order with respect to
the finding of trespass “unjustly enriches” Avenarius. In effect, Simon appears to
be making a damages argument, i.e., that the trespass award has resulted in a
windfall to Avenarius.
The gist of a claim for trespass on land is the wrongful interference with
one‟s possessory rights in property. Ryan v. City of Emmetsburg, 232 Iowa 600,
603, 4 N.W.2d 435, 438 (1942). “One is subject to liability to another for trespass
irrespective of whether he thereby causes harm to any legally protected interest
of the other, if he intentionally . . . remains on the land.” Robert’s River Rides,
Inc. v. Steamboat Dev. Corp., 520 N.W.2d 294, 301 (1994) (citation omitted),
abrogated on other grounds by Barreca v. Nickolas, 683 N.W.2d 111 (Iowa
2004). The general rule is that the measure of damages in trespass actions is
such sum as will compensate the person injured for the loss sustained. 87 C.J.S.
Trespass § 140, at 773 (2000); see also Bangert v. Osceola Co., 456 N.W.2d
183, 190 (Iowa 1990) (noting that proper measure of damages for trespass would
“place injured party in as favorable a position as though no wrong had been
committed”); Bethards v. Shivvers, Inc. 355 N.W.2d 39, 45 (Iowa 1984) (noting a
plaintiff in a trespass case may be entitled to both actual and punitive damages).
The trial court concluded the proper measure of damages would be the cost of
restoration, which it calculated to be $13,600 (the cost to return the excavated
soil—16,000 cubic yards—to its former location using Simon‟s fee of eighty-five
13
cents per cubic yard).
However, the court also concluded that Avenarius
voluntarily accepted the proceeds from the sale of some of the excavated dirt
($13,000) and credited Simon with this amount. See 87 C.J.S. Trespass § 115,
at 752 (noting a defendant in a trespass action may offer evidence in mitigation
of damages). We find no error.
Avenarius did testify that he and a friend had returned approximately
10,000 of the 16,000 cubic yards of dirt at no cost to Avenarius other than his
own time.6 Thus, an argument might be made that it would be inappropriate to
charge Simon for damages that have been rectified. However, Simon does not
challenge the award on this ground. Simon‟s argument, rather, is that some dirt
still remains available to be sold. It is unclear how much dirt is left and how
much, if any, will be sold by Avenarius. Simon bore the burden of proof on this
offset or mitigation defense. See F.S. Credit Corp. v. Shear Elevator, Inc., 377
N.W.2d 227, 233 (Iowa 1985).
Taking all the facts and circumstances into
account, we believe the $600 net award to Avenarius on his trespass
counterclaim is supported by the evidence.
IV. Conclusion.
The district court committed no error of law, and its factual findings are
supported by substantial evidence. We therefore affirm the judgment entered.
AFFIRMED.
6
The trial court found Avenarius and a friend had restored “some” dirt, but did not
determine how much had been restored.
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