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Birchwood Crossing v. Fittings Unltd

Court of Appeals of Iowa
Dec 30, 2002
No. 2-897 / 02-0169 (Iowa Ct. App. Dec. 30, 2002)

Opinion

No. 2-897 / 02-0169.

Filed December 30, 2002.

Appeal from the Iowa District Court for Polk County, GEORGE W. BERGESON, Judge.

Lessee and assignee appeal the district court finding that lessor used reasonable diligence in an effort to mitigate damages. AFFIRMED.

Catherine C. Dietz-Kilen of Harrison Dietz-Kilen, Des Moines, for appellants.

William B. Serangeli of Smith, Schneider, Stiles Serangeli, P.C., Des Moines, for appellee.

Considered by VOGEL, P.J., and ZIMMER and HECHT, JJ.


The sole issue upon this review for errors at law, Iowa R.App.P. 6.4, is whether the record contains substantial evidence in support of the district court's determination that lessor Birchwood Crossing Business Park, L.C. (Birchwood), used reasonable diligence to relet, at the best obtainable rent, the commercial property wrongfully abandoned by lessee Fittings Unlimited, Inc. (Fittings), and its assignee, Bream Enterprises, Inc. (Bream). See Iowa R.App.P. 6.14(6)(a); Harmsen v. Dr. MacDonald's, Inc., 403 N.W.2d 48, 51 (Iowa Ct.App. 1987). The burden was on Birchwood to show it used reasonable diligence to relet the property, once it had reason to know the property had been abandoned. Harmsen, 403 N.W.2d at 51. After a review of the record in this matter, we must affirm the district court.

Although Fittings and Bream indicated an intent to abandon the lease agreement as early as December 1999, actual abandonment did not occur until May 2000. Testimony was presented that Fittings and Bream nevertheless agreed to remain current on the rent obligation under the lease and informed Birchwood they had retained a real estate agency, Grubb Ellis, to assist in the pursuit of a sub-lease. Fittings and Bream did in fact remain current on the rent obligation until August 2000. Birchwood claimed that, despite attempts to obtain a key, it did not regain access to, and thus was unable to show the property, until December 2000. Debra Bream, testifying on behalf of her corporation, agreed the keys were not turned over until December, as prior to that time Grubb Ellis held the keys so that they could show the property to prospective sub-lessees.

Even though Grubb Ellis was unable to find a sub-lessee, Debra Bream stated she was not critical of the agency, as the property was not a "good location," and she could "see why they are having problems." Evidence was also presented as to a number of ultimately unsuccessful steps taken by Birchwood in an effort to relet the space after Fittings and Bream's default, as well as to the downturn in commercial leasing activity. The property remained unoccupied as of the November 2001 trial.

While Fittings and Bream may contest some of the foregoing evidence, assessing the credibility of witnesses and weighing the evidence are matters for the fact finder, not this court upon appeal. Reiss v. ICI Seeds, Inc., 548 N.W.2d 170, 173 (Iowa Ct.App. 1996). Given the record before the district court, a reasonable mind could accept the evidence presented as sufficient to find Birchwood had met its burden. See Welchans v. United Servs. Auto. Ass'n, 645 N.W.2d 1, 2 (Iowa Ct.App. 2002). Accordingly, the district court's findings are supported by substantial evidence and must be affirmed.

AFFIRMED.


Summaries of

Birchwood Crossing v. Fittings Unltd

Court of Appeals of Iowa
Dec 30, 2002
No. 2-897 / 02-0169 (Iowa Ct. App. Dec. 30, 2002)
Case details for

Birchwood Crossing v. Fittings Unltd

Case Details

Full title:BIRCHWOOD CROSSING BUSINESS PARK, L.C., Appellee, v. FITTINGS UNLIMITED…

Court:Court of Appeals of Iowa

Date published: Dec 30, 2002

Citations

No. 2-897 / 02-0169 (Iowa Ct. App. Dec. 30, 2002)