Opinion
No. 4-488 / 03-1326.
September 9, 2004.
Appeal from the Iowa District Court for Linn County, Kristin L. Hibbs, Judge.
A condominium developer appeals from an adverse judgment in a breach of warranty action brought by condominium purchasers and a condominium owners association. AFFIRMED.
Walter J. Steggall Jr., Cedar Rapids, and Brett S. Nitzschke, Cedar Rapids, for appellant.
Edward M. Blando and Paula L. Roby of Elderkin Pirnie, P.L.C., Cedar Rapids, for appellees.
Considered by Huitink, P.J., and Hecht and Eisenhauer, JJ.
A condominium association and several owners of condominiums in Ely, Iowa sued their condominium developer, asserting the property lacked adequate drainage. The trial court agreed, awarding the owners the cost of installing a storm sewer pipe. The developer appeals, alleging (1) the trial court erred when it excluded evidence of a plat of another subdivision in Ely, and (2) the trial court erred when it found the developer breached the implied warranty of competent construction. We affirm the trial court's judgment.
I. Factual Background
The individual plaintiffs are owners of condominiums on Comisky Court in Ely, purchased from Schulte Development, L.C. The plaintiff Association represents all condominium owners in this development, and all individual plaintiffs are members of the Association. This dispute concerns a drainage swale that runs through the back yards of two of the lots. During construction, the developer tested the property's elevation on three occasions to ensure the proper flow of water. The swale's slope is roughly two degrees, and it runs within twelve inches of patio steps on one of the condominiums.
The owners testified their backyards are often unusable due to wet, soggy soil. Ponds of water form in their yards after even light rains. Their lawns are, in the words of one owner, "always muddy." Large patches of their lawns are discolored or dead. One plaintiff had difficulties selling his property because of drainage problems. Photographs vividly illustrate their complaints.
The developer first became aware of drainage complaints when one of the plaintiffs requested the developer to reroute the swale. The developer indicated this would be impossible because of the development's topography. The owners and the developer attempted, without success, to arrive at a solution.
The engineering firm of Shive-Hattery, Inc., retained by the owners, examined the site and concluded the property was inadequately drained. In a written report, the firm stated:
The longitudinal slope [of the swale] is relatively flat (less than 1.5%), and coupled with similarly flat backyard slopes, storm runoff will spread out and flow very slowly. . . . In addition, groundwater table levels will be fairly high along the swale, causing soggy areas in the backyards, particularly during spring/early summer rainy seasons. These conditions are already evident in the backyards of [the lots at issue].
The firm concluded re-grading the swale would have little effect, if any at all, and recommended installation of a storm sewer pipe. Ervin G. Mussman, the lead author of this report, testifying for the plaintiffs, stated neither the proximity of the swale to the structures nor allowing the ponding water after rains was "an acceptable building practice."
The developer forwarded this unfavorable report to Hall and Hall Engineers, Inc., which surveyed the property and concluded in a letter to the developer: "Our survey did not reveal any areas of ponding and the overall slope of the swale is adequate for a shallow grass channel." Richard C. Ransom, the engineer who authored this report, testified for the developer. On cross-examination, Mr. Ransom, who did not perform the survey, acknowledged he would have no "basis to contest" the testimony of the plaintiffs about the conditions of their property. He also stated that "actual observations," rather than statistical measurements, are a better indication of property conditions.
At trial, the developer's witnesses denied there was a drainage problem and stated they had never observed standing water on the property. The developer introduced two photographs of the swale, showing no standing water the day after a rain.
The trial court found the property had "a drainage problem." The court concluded, "Neither the proximity of the building to the water flow through the swale nor the ponding water in the yard is acceptable building practices." The court specifically relied on the plaintiffs' testimony and the photographs they offered as evidence.
II. Scope and Standards of Review
This action was tried at law. We review for the correction of errors at law. Iowa R. App. P. 6.4.
The trial court's findings of fact are binding if supported by substantial evidence. Iowa R. App. P. 6.14(6)( a). Substantial evidence is such quantity and quality of evidence that a reasonable person could accept "as adequate to reach the same findings." Reiss v. ICI Seeds, Inc., 548 N.W.2d 170, 173 (Iowa Ct. App. 1996); see also Kessler v. Wal-Mart Stores, Inc., 587 N.W.2d 804, 806 (Iowa Ct.App. 1998). "Evidence is not insubstantial merely because it could support contrary inferences." Reiss, 548 N.W.2d at 173; see also Kirk v. Ridgway, 373 N.W.2d 491, 497 (Iowa 1985). We construe the trial court's findings of fact broadly "to uphold, rather than defeat, the judgment." Reiss, 548 N.W.2d at 173. We will not reweigh the evidence or second-guess the trial court's explicit or implicit findings of witness credibility. Id.
We will not disturb a trial court's rulings on the admissibility of evidence unless the trial court abused its discretion. Kessler, 587 N.W.2d at 806. We will not find an abuse of discretion unless a trial court's evidentiary ruling is "clearly unreasonable." Id. III. Exclusion of Evidence
As noted above, the plaintiff's engineer testified the location of the swale and allowing the water to pond was not an acceptable building practice. During cross-examination, counsel for the developer sought to introduce a plat from another subdivision in Ely. It showed two drainage swales with slopes slightly less than the swale at issue. Counsel for the plaintiffs objected, asserting the plat was irrelevant and immaterial. Counsel for the developer responded: "Your honor, it goes to the industry standard engineering practices for drainage." The court sustained the objection, and counsel made an offer of proof.
Evidence is "relevant" if it makes "the existence of any fact that is of consequence . . . more probable or less probable than it would be without the evidence." Iowa R. Evid. 5.401. Generally, relevant evidence is admissible and irrelevant evidence is inadmissible. Iowa R. Evid. 5.402. Evidence is "material" if it tends to establish a "fact that is of consequence." Vine Street Corp. v. City of Council Bluffs, 220 N.W.2d 860, 862 (Iowa 1974). Immaterial evidence is evidence proving "a proposition not in issue." Shinrone, Inc. v. Tasco, Inc., 283 N.W.2d 280, 288 (Iowa 1979) (quotations omitted).
We have considered the plat and the developer's offer of proof. At most, the plat shows that two swales in another subdivision had a slope similar to the swale at issue. It does not establish an "industry standard" or show every swale with a longitudinal slope of two degrees is sufficient. In fact, the plaintiffs never argued the swale's slope alone was the cause of their problems.
According to the Shive-Hattery report, the flat longitudinal slope is not the sole cause of the drainage problems. Rather, the drainage problems result from the flat slope combined with relatively flat side slopes and "fairly high" water table levels. The plat from the unrelated subdivision does not provide readily ascertainable information about water tables; moreover, the side slopes of the swales in the unrelated subdivision are much steeper than the side slopes of the swale at issue. Additionally, the engineer retained by the plaintiffs testified the proximity of the structures to the swale was not acceptable. The unrelated plat map does not show the location of existing or proposed structures.
The plat map at issue does not make any "fact of consequence" "more probable or less probable." Iowa R. Evid. 5.401. It is neither relevant nor material. The trial judge did not abuse her discretion in excluding this evidence.
IV. Finding of Breach of Warranty
The trial court found the developer breached the implied warranty, first recognized in Kirk v. Ridgway, 373 N.W.2d 491, 496 (Iowa 1985), that the condominiums were constructed "in a good and workmanlike manner."
The trial court relied on the testimony of the owners and their photographs of the property, which showed standing water, discolored and dead grass, and muddy, spongy ground. It also relied on the opinion of the engineer retained by the plaintiff concerning both the condition of the property and the acceptability of the developer's building practices. The trial judge specifically discounted the testimony from one witness for the developer, who stated he never saw ponding water on the property. A reasonable person would find this evidence adequate to support the trial court's conclusion that the developer breached the warranty of "good and workmanlike construction."
The developer points to several alleged deficiencies in the Shive-Hattery report when it is compared to the Hall and Hall report, such as less precise measurements of the longitudinal slope of the swale. The developer also asserts the testimony of Mr. Mussman, the engineer for the plaintiffs, was somehow inconsistent. These alleged deficiencies, which were fully explored by counsel for the developer on cross-examination, go to the weight and evaluation of the evidence. This area is the particular province of the fact-finder. As there is sufficient evidence to support the trial court's findings of fact, we will not reweigh the evidence in this case. See Reiss, 548 N.W.2d at 173.
V. Conclusion
We have considered all contentions and find no error of law. We affirm the judgment of the district court.