Opinion
No. 3-290 / 02-1070
Filed July 10, 2003
Appeal from the Iowa District Court for Pottawattamie County, James M. Richardson, Judge.
RKC Realty appeals from an adverse verdict enforcing a mechanic's lien against them. AFFIRMED.
Anthony Tauke of Porter, Tauke Ebke, Council Bluffs, for appellant.
John Johnson, Sidney, and Bruce Stephens of Stephens Sutter, York, Nebraska, for appellee.
Heard by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
RKC Realty (RKC) appeals from an adverse verdict enforcing a mechanic's lien against them. We affirm.
I. Background Facts and Proceedings. RKC purchased a grain elevator in Council Bluffs. In November 1998, RKC leased the building to the Hansen Mueller Company. According to the terms of the lease, RKC agreed to make certain repairs to the elevator. In June 1999, RKC executed a contract with Batterton Waterproofing for five separate projects, including waterproofing. Following the description of the first four projects, the contract states, "All projects listed above will be done on a Time Material basis not to exceed $15,000.00." The waterproofing project is described next, followed by "[c]ost for this project will be: $30.00 per gallon pumped if done with other projects."
Batterton began work soon after. Upon completion of the first four projects, Batterton left the facility on August 3, 1999, and a few days later billed RKC $15,000.00. RKC paid the bill. In October 1999, Batterton returned to the elevator and began waterproofing. On November 9, 1999, Batterton sent RKC a $104,400.00 bill for the waterproofing. RKC refused to pay the bill, asserting the total price of the contract, including waterproofing, should not have exceeded $15,000.00.
On July 5, 2000, Batterton filed a petition to foreclose on a mechanic's lien against RKC. RKC moved for summary judgment, which was denied by the district court. After a bench trial and adverse verdict, RKC filed a motion to enlarge, amend and modify. The district court refused to amend its decree, and RKC appeals. RKC alleges the district court erred by 1) failing to grant RKC's motion for summary judgment; 2) failing to determine that Batterton, not RKC, breached the contract; 3) failing to consider parol evidence to interpret the contract; 4) failing to determine that Batterton knew or should have known that RKC intended the price of the entire contract not to exceed $15,000; 5) failing to determine there was no meeting of the minds and thus no contract ever formed; 6) failing to determine the contract was void due to mutual mistake; 7) exhibiting judicial bias in favor of Batterton; and 8) failing to find the contract was void as against public policy.
II. Scope and Standards of Review. An action to enforce a mechanic's lien is in equity and our review is de novo. Sulzberger Excavation Inc. v. Glass, 351 N.W.2d 188, 191 (Iowa Ct.App. 1984). However, for a claimant to be entitled to enforcement of a mechanic's lien, an express contract or such facts as give rise to a implied contract must exist. Id. Claims for breach of contract and construction of contracts are tried and reviewed at law. Owen Const. Co., Inc. v. Iowa State Dept. of Transp., 274 N.W.2d 304, 306 (Iowa 1979).
III. Summary Judgment. RKC contends the district court erred when it denied RKC's motion for summary judgment. Summary judgment is proper when the record shows no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Iowa R.Civ.P. 1.981(3). RKC contends it was entitled to judgment as a matter of law because Batterton filed its resistance to the motion for summary judgment late. However, a "failure to file a resistance to a motion for summary judgment is fatal only if the moving party has sustained its burden of proof." In re Estate of Eikman, 291 N.W.2d 308, 312 (Iowa 1980). We agree with the district court that RKC did not produce undisputed facts that entitled it to judgment as a matter of law and affirm on this issue.
IV. Batterton's Breach. RKC next contends the district court erred by not finding that Batterton breached the plain terms of the contract. The contract states that in conjunction with the waterproofing, Batterton was to "[p]ressure pump chemical grout behind walls and under floors, below grade, where [RKC] desires to seal water leaks and seepage in various areas." RKC argues that Batterton did not receive guidance about where to waterproof from RKC, as required, but rather waterproofed where they saw fit, thus breaching the contract. Batterton provided testimony that RKC pointed out the leaks prior to the execution of the contract and that RKC wanted all the leaks fixed-they wanted the elevator to be waterproof. Batterton additionally pointed to the three-year guarantee in the contract, contending they could not provide a guarantee unless they fixed all the leaks.
RKC further alleges that by completing the first four projects and leaving the work site for several months before returning to waterproof, the waterproofing was not done "with" the other projects as required by the contract. Batterton contends "with" simply means that if RKC hired Batterton to complete the first four projects, it would receive the discounted rate on the waterproofing project.
We find no merit to RKC's arguments and determine Batterton performed the projects in accordance with the terms of the contract. Accordingly, we affirm on this issue.
V. Parol Evidence. RKC next contends the district court should have relied on a fax transmission and conversations between RKC and Batterton to interpret the contract. We disagree. The terms of the contract are unambiguous and there is no reason for the district court to rely on evidence not within the contract itself. Echols v. State, 440 N.W.2d 402, 404 (Iowa Ct.App. 1989). We affirm on this issue.
VI. Batterton knew or should have known RKC's intent. RKC contends Batterton knew or should have known of RKC's intent that the entire contract cost a maximum of $15,000.00. We find no merit in this contention because even if the negotiations between RKC and Batterton began with the idea that the project cost $15,000.00, the written contract clearly does not limit the cost of the entire contract to $15,000.00. We affirm on this issue.
VII. No meeting of the minds. RKC argues that if RKC intended the contract price to be $15,000.00 and Batterton did not, there was no meeting of the minds and thus no contract. RKC contends it is clear that RKC wanted to limit the price of the contract to $15,000.00. That, however, is far from clear. The contract explicitly states only the first projects will be completed for a maximum of $15,000.00 and the waterproofing project will be charged separately. We affirm on this issue.
VIII. Other arguments. RKC also alleges Judge Richardson was biased in favor of Batterton, and that the contract is void due to mutual mistake and because it is against public policy. These issues were not raised in the trial court and therefore have not been preserved for our review. Leaf v. Goodyear Tire Rubber Co., 590 N.W.2d 525, 528 (Iowa 1999).