Thomas Webb and Laureen Webb v. Midwest Storm Company, LLC. ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0041
Filed April 15, 2020
THOMAS WEBB and LAUREEN WEBB,
Plaintiffs-Appellees,
vs.
MIDWEST STORM COMPANY, LLC.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Lee (South) County, Wyatt P.
Peterson, Judge.
Midwest Storm Company, LLC appeals from an adverse jury verdict.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Victoria D. Noel (until withdrawal) of the Noel Law Firm, Clinton, and
Matthew L. Noel, Dubuque, for appellant.
Curtis Dial of Law Office of Curtis Dial, Keokuk, for appellee.
Considered by Bower, C.J., and May and Greer, JJ.
2
MAY, Judge.
Midwest Storm Company, LLC (Midwest) appeals from an adverse jury
verdict in favor of Thomas Webb and Laureen1 Webb. On appeal, Midwest claims
the district court erred in denying its motion for judgment notwithstanding the
verdict (JNOV). Midwest also alleges the district court erred in not granting its
motion for new trial with respect to its counterclaim. We reverse in part, affirm in
part, and remand.
I. Background Facts and Prior Proceedings
The Webbs hired Midwest to repair damage to their home. Midwest
completed work on the roof and hired a subcontractor to work on the home’s siding.
But Thomas was not satisfied with the quality of the siding work. Thomas told
Midwest not to return or send the subcontractor back. The Webbs’ insurance
company paid Midwest $15,985.88 of the total contract price, which was
somewhere in between $22,000 and $23,000. No one paid the remainder.
The Webbs then brought this action against Midwest. Midwest responded
with a counterclaim against the Webbs. The matter proceeded to jury trial. The
court submitted jury instructions for the Webbs’ claims of breach of contract and
negligence, as well as Midwest’s breach of contract counterclaim.
The jury returned a verdict in favor of the Webbs on their contract and
negligence claims. The jury awarded $7500 in damages for breach of contract
and $1500 “plus lawyer fees and court costs” with respect to the negligence claim.
1 Filings within the record differ as to the spelling of Ms. Webb’s first name. Some
filings refer to Lauren Webb and others to Laureen Webb. We refer to her as
Laureen Webb as that is how her name appears on her appellant brief.
3
As to Midwest’s counterclaim, the jury found the Webbs did not breach the
contract. The district court promptly entered judgment for the Webbs and against
Midwest in the amount of “$9000 plus lawyer fees and court costs.”
On Midwest’s motion, the district court filed a bill of exceptions. It expanded
the record to show that (1) the parties had waived recording of closing argument;
but (2) during closing argument, the Webbs’ attorney stated they were only seeking
$7500 in total damages.
Midwest also moved for new trial and JNOV. The district court conditionally
granted the motion for new trial unless the Webbs filed a remittitur, or written
consent, to reduce their total judgment to $7500. In all other respects, the district
court denied Midwest’s motions for new trial and JNOV.
The Webbs filed a written consent to a reduction of their total judgment to
$7500. Midwest now appeals the court’s denial of its motions for new trial and
JNOV.
II. Scope and Standard of Review
“The purpose of [JNOV] is to allow the district court an opportunity to correct
any error in failing to direct a verdict.” Easton v. Howard, 751 N.W.2d 1, 4 (Iowa
2008). “We . . . review a district court ruling on a motion for [JNOV] for correction
of errors at law.” Thornton v. Am. Interstate Ins. Co., 897 N.W.2d 445, 460 (Iowa
2017) (citation omitted). “Our role is to decide whether there was sufficient
evidence to justify submitting the case to the jury when viewing the evidence in the
light most favorable to the nonmoving party.” Smith v. Iowa State Univ. of Sci. &
Tech., 851 N.W.2d 1, 18 (Iowa 2014) (citation omitted).
4
On appeal, an appellate court’s review is limited to those grounds
raised in the defendant’s motion for a directed verdict. Error must be
raised with some specificity in a directed verdict motion. A motion
for [JNOV] must stand on grounds raised in the directed verdict
motion. On appeal from such judgment, review by an appellate court
is limited to those grounds raised in the directed verdict motion.
Royal Indem. Co. v. Factory Mut. Ins. Co., 786 N.W.2d 839, 844–45 (Iowa 2010)
(citations omitted).
III. Discussion
Midwest argues it was entitled to JNOV as to both the Webbs’ contract claim
and their negligence claim. Midwest also contests the district court’s denial of its
motion for new trial as to its breach-of-contract counter claim.
We begin by addressing the Webbs’ contract claim. Midwest claims that,
as a matter of law, the Webbs could not recover for breach of contract. We agree
for two reasons.
First, the jury was instructed without objection that (1) the Webbs must
prove they have “done what the contract requires”; and (2) if they failed to prove
that proposition, the Webbs would “not [be] entitled to damages.” See Molo Oil
Co. v. River City Ford Truck Sales, Inc., 578 N.W.2d 222, 224 (Iowa 1998)
(providing for a plaintiff to recover for breach of contract the plaintiff must perform
“all the terms and conditions required under the contract”). But it appears
undisputed the Webbs failed to perform their payment obligation under the
contract.2 So the Webbs could not recover under the contract.
2 The Webbs did not file a brief to contest this assertion, Thomas testified he did
not pay the agreed upon amount, and we will not comb the record to build a
responsive argument for a party. See Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa
1996) (determining the court “will not speculate on the arguments [a party] might
have made” or “comb the record for facts to support such arguments”).
5
Moreover, the jury was instructed without objection that a party’s
performance “is excused if the other party prevents it or makes it impossible.” And
it appears undisputed the Webbs prevented Midwest from addressing the Webbs’
concerns with the siding work.3 This excused Midwest’s performance and
foreclosed recovery by the Webbs. See Sheer Constr., Inc. v. W. Hodgman &
Sons, Inc., 326 N.W.2d 328, 332 (Iowa 1982) (noting construction contracts have
“an implied term that the person for whom the work is contracted to be done will
not obstruct, hinder or delay the contractor, but, on the contrary, will in all ways
facilitate the performance of the work to be done by [the contractor]” (citation
omitted)). So, as to the Webbs’ contract claim, we conclude Midwest was entitled
to JNOV.
We next address Midwest’s challenge to the negligence award. As a
practical matter, we recognize our review of this issue may have little effect. The
Webbs consented to limiting their recovery to $7500. This eliminated the amounts
awarded for their negligence claim.
Nonetheless, as Midwest argues, the Webbs did not plead or prove a viable
negligence theory. The Webbs alleged Midwest “did not complete” home repairs
that Midwest “had agreed to complete” under “a verbal contract.” Moreover, the
Webbs alleged, the work Midwest completed under the contract “was not done
properly.” As for damages, the Webbs alleged they had to “pay other contractors”
to “finish” the work Midwest “had agreed to complete,” and to “repair the work”
3Again, we note the Webbs did not file an appellate brief contesting this claim, and
we will not scour the record to construct a responsive argument on their behalf.
See Hyler, 548 N.W.2d at 876.
6
Midwest “performed incorrectly.” These are contract claims, not negligence
claims. See Annett Holdings, Inc. v. Kum & Go, L.C., 801 N.W.2d 499, 503 (Iowa
2011) (“When two parties have a contractual relationship, the economic loss rule
prevents one party from bringing a negligence action against the other over the
first party’s defeated expectations—a subject matter the parties can be presumed
to have allocated between themselves in their contract.”); see generally Jeffrey L.
Goodman et. al., A Guide to Understanding the Economic Loss Doctrine, 67 Drake
L. Rev. 1 (2019). So Midwest was entitled to JNOV as to the Webbs’ negligence
claim.
Finally, we address Midwest’s claim that it is entitled to a new trial with
respect to its counterclaim asserting a breach-of-contract claim against the Webbs.
Midwest’s motion for new trial asserted, “On the count submitted by the [d]efendant
the jury affixed an amount too small.” On appeal, though, Midwest raises
arguments about liability, not damages. We conclude Midwest’s complaint to the
district court concerning damages did not preserve its appellate claim regarding
liability.4 See Grefe & Sidney v. Watters, 525 N.W.2d 821, 825 (Iowa 1994)
(concluding a party may not make a new argument on appeal).
IV. Conclusion
We affirm the district court’s ruling on Midwest’s motion for new trial with
respect to Midwest’s counterclaim. We reverse the district court’s ruling on
4 We may raise the issue of error preservation sua sponte. See Top of Iowa Co-
op. v. Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa 2000) (“In view of the range
of interests protected by our error preservation rules, this court will consider on
appeal whether error was preserved despite the opposing party’s omission in not
raising this issue at trial or on appeal.”).
7
Midwest’s motion for JNOV and remand for entry of judgment in favor of Midwest
as to the Webbs’ breach-of-contract claim and negligence claim.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.