No. 3-207 / 02-0502Court of Appeals of Iowa.
Filed April 4, 2003
Appeal from the Iowa District Court for Scott County, Gary D. McKenrick, Judge.
This is an appeal from a district court decision resolving a building contract dispute. AFFIRMED.
Kyle Williamson of Hopkins Huebner, P.C., Davenport, for appellant.
Roni Halabi of Betty, Neuman McMahon, L.L.P., Davenport, for appellee.
Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
SACKETT, C.J.
This is an appeal from a district court decision resolving a building contract dispute. Plaintiffs-appellants, Dan Luna and A+ Self Storage, contracted in early October of 2000 with defendant-appellee/counterclaim plaintiff, Anderson Building Company, to construct a building of self-storage units on land plaintiffs owned. The building was completed in mid-February of 2001. In June of 2001 plaintiffs sued defendant for breach of the construction contract, and defendant counterclaimed for money it contended remained due on the contract. The district court found the defendant had performed its obligations under the contract, dismissed plaintiffs’ claim for breach of contract, and entered judgment in defendant’s favor for the $10,408 yet due.
On appeal plaintiffs contend (1) the district court erred in failing to consider testimony of its expert, Scott Illingsworth; (2) the district court’s finding plaintiffs did not prove damages is not supported by substantial evidence; and (3) the district court’s finding there was no agreement that the project be completed by January 1, 2001 was not supported by substantial evidence. We affirm.
I. SCOPE OF REVIEW
This was tried as a law action. Our review is therefore for correction of errors at law. Iowa R.App.P. 6.4; Fausel v. JRJ Enterprises, Inc., 603 N.W.2d 612, 617 (Iowa 1999); Bacon v. Bacon, 567 N.W.2d 414, 417
(Iowa 1997). Furthermore, to the extent that this case involves contract construction, our review is at law. Fausel, 603 N.W.2d at 617; see also Fashion Fabrics of Iowa, Inc. v. Retail Investors Corp., 266 N.W.2d 22, 25 (Iowa 1978). The district court’s findings of fact are binding on us if they are supported by substantial evidence. Iowa R.App.P. 6.14(6)(a) Fausel, 603 N.W.2d at 617.
II. TESTIMONY OF SCOTT ILLINGSWORTH
Scott Illingsworth was hired by Luna as a general contractor to oversee part of the work. Illingsworth testified as an expert that the building was sub par and that defects in the building would result in a ten to fifteen percent diminution of the value of the end product. Plaintiff contends the district court did not consider Illingsworth’s testimony. Defendant contends this issue is not preserved for appellate review, as plaintiffs failed to make an Iowa Rule of Civil Procedure 1.904(2) motion to enlarge or amend the findings of the district court. We are inclined to agree, for where such an issue is not raised in the district court we will assume as fact an unstated finding necessary to support the district court’s judgment, and any ambiguity in the district court’s findings is decided in favor of the judgment. See Hubby v. State, 331 N.W.2d 690, 695
(Iowa 1983); Eldridge v. Herman, 291 N.W.2d 319, 321 (Iowa 1980). The district court is not bound to accept unrefuted testimony by an expert Eventide Lutheran Home for the Aged v. Smithson Elec. and Gen. Constr., Inc., 445 N.W.2d 789, 791-92 (Iowa 1989). We affirm on this issue.
III. DISTRICT COURT FINDING PLAINTIFF DID NOT PROVE DAMAGES.
Plaintiffs contend the district court should have found they suffered damages. Defendant contends this issue should not be addressed because plaintiffs did not cite authority in their brief in support of this proposition. The burden of proof as to their damages was on the plaintiffs. To accept plaintiffs’ position on this issue, we would have to find that damages were established as a matter of law. Our review of the evidence convinces us this is not the case.
IV. PROJECT TO BE COMPLETED BY JANUARY 1, 2001
Plaintiffs contend there was an agreement the project should be completed by January 1, 2001. The district court found that while there was no specific completion found, the parties anticipated a reasonable completion date. Considering weather and other factors, the court found the contract was completed in a reasonable period of time. The question is whether the evidence supports the findings made by the district court. See Sherman v. Pella Corp., 576 N.W.2d 312, 316 (Iowa 1998). The written contracts contain no completion date. There was ample evidence to support the district court’s determination the contract was completed in a reasonable period of time, and we affirm on this issue.
AFFIRMED.