Opinion
No. 4-196 / 03-0698
Filed August 11, 2004
Appeal from the Iowa District Court for Tama County, David S. Good, Judge.
Clayton Patrick appeals the district court's order granting a motion for directed verdict in favor of Bernie Waterbeck. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Darrell Meyer, Marshalltown, for appellant.
Barry Kaplan and Chad Frese of Fairall, Fairall, Kaplan Frese, L.L.P., Marshalltown, for appellee.
Considered by Sackett, C.J., and Vaitheswaran, and Eisenhauer, JJ.
Clayton Patrick entered into a written contract with Bernie Waterbeck to repair the roof of his home. He later asked Waterbeck to perform some work on a shed that had been damaged by a tornado. When the roof began leaking again and the shed collapsed, Patrick sued Waterbeck. He raised claims for 1) breach of a written contract relating to the roof, 2) breach of an oral contract relating to the shed, and 3) negligence in his work on the shed. At trial, the district court directed a verdict on all three claims. The court also excluded certain expert testimony proffered by Patrick on his negligence claim. Patrick appealed.
I. Ruling on Motion for Directed Verdict A. Roof.
Patrick contends the district court erred in granting a directed verdict in favor of Waterbeck on his breach of contract claim relating to the roof. He maintains that Waterbeck's motion did not concern the roof. We agree.
At the close of Patrick's evidence, Waterbeck's attorney stated, "[W]e would make a Motion for Directed Verdict, specifically as it applies to the shed. I believe that as far as the roof is concerned, that might very well — the roof on the house might be a jury question." After both parties rested, defense counsel renewed his motion, stating,
I would like to renew my Motion for Directed Verdict in its entirety . . . [on the basis that] Plaintiff has failed to prove all the elements as to contract and/or negligence and/or breach of warranty and perhaps most glaring and most important is there is no evidence at all about the value of this shed before Mr. Waterbeck was there and worked on the shed in October 1998.
The district court granted the renewed motion. Patrick's counsel then asked whether the court's decision regarded the "roof as well, or is this just on the claim for the shed?" The court responded, "[T]hat was on the roof as well."
Our review of a denial of a motion for directed verdict is limited to the grounds raised in the motion. See Leaf v. Goodyear Tire Rubber Co., 590 N.W.2d 525, 528 (Iowa 1999). This principle applies even if the court rules on a ground not raised in the directed verdict motion. See Field v. Palmer, 592 N.W.2d 347, 351 (Iowa 1999) (holding party has no right to remedy not raised in motion for directed verdict even if district court ruled on appropriateness of remedy). As Waterbeck did not seek a directed verdict on the roof claim, he was not entitled to a directed verdict on that claim. Accordingly, we reverse and remand for a new trial on this claim.
B. Shed.
The district court granted Waterbeck's motion for directed verdict on his contract and negligence claims relating to the shed. Patrick contends he generated jury questions on both claims.
The standard on review of a directed verdict is well established. "[W]here no substantial evidence exists to support each element of a plaintiff's claim, the court may sustain a motion for directed verdict." Godar v. Edwards, 588 N.W.2d 701, 705 (Iowa 1999). On the other hand, "if reasonable minds could reach different conclusions based upon the evidence presented, the issue is properly submitted to the jury." Wolbers v. The Finley Hosp., 673 N.W.2d 728, 734 (Iowa 2003). We turn to Patrick's claims relating to the shed.
1. Contract.
A breach-of-contract claim requires proof of (1) the existence of a contract, (2) the terms and conditions of the contract, (3) performance of all the terms and conditions required under the contract, (4) the defendant's breach of the contract, and (5) damages as a result of the breach. Molo Oil Co. v. River City Ford Truck Sales, Inc., 578 N.W.2d 222, 224 (Iowa 1998). The key question here is whether Patrick presented substantial evidence of the second element, the terms and conditions of the contract.
"[T]he terms must be sufficiently definite for a court to determine with certainty the duties of each party, the conditions relative to performance, and a reasonably certain basis for a remedy." Gallagher, Langlas Gallagher v. Burco, 587 N.W.2d 615, 617 (Iowa Ct.App. 1998). A contract is generally not found to exist when the parties agree to a contract on a basis to be settled in the future. Whalen v. Connelly, 545 N.W.2d 284, 293 (Iowa 1996).
Patrick alleged that he and Waterbeck entered into an oral contract "wherein the Defendant agreed to make certain repairs on the Plaintiff's machine shed." At trial, he testified that the tornado tilted the shed and damaged the roof and one side. Waterbeck was initially "to straighten the shed up." After it was straightened Patrick testified they would "see how it went, to make a contract."
According to Patrick, Waterbeck estimated the entire project would cost $9,000 to $10,000, but there was a caveat. Waterbeck told him "he didn't have any idea what it cost in labor to straighten it up, but as soon as he got it straightened up and see how much time that involved, then we would make a contract."
Patrick admitted that no written contract was ever entered into, as had been done with his home's roof, and the parties did not finalize the terms of an oral contract to fully repair the shed. We agree with the district court that Patrick did not present substantial evidence of the terms of his oral contract with Waterbeck. The terms he testified to were not sufficiently definite to determine either party's duties following the attempt to straighten the building. See Gallagher, 587 N.W.2d at 617. At best, the parties had "an agreement to agree" to repair the shed. Whalen, 585 N.W.2d at 293. This type of agreement is not a contract. Id. As a jury could not reasonably infer that the parties had a meeting of the minds on the repair of the building, the district court did not err in granting Waterbeck's motion for directed verdict on this breach-of-contract claim.
2. Negligence.
To prove negligence, the plaintiff must establish that (1) the defendant had a duty to conform to a standard of conduct for the protection of others, (2) the defendant failed to conform to that standard of conduct, (3) the plaintiff's damages were proximately caused by the defendant's conduct, and (4) the plaintiff suffered damages. Hartig v. Francois, 562 N.W.2d 427, 429 (Iowa 1997).
Patrick's pretrial statement asserted Waterbeck was negligent in five ways: 1) "[a]ttempting to erect the shed without proper equipment"; 2) "[u]nderestimating the structural stresses in attempting to pull the shed into shape with his pickup truck"; 3) "[f]ailing to secure the shed from the elements when he left the premises"; 4) "[f]ailing to return to the site to secure the shed or finish the shed"; and 5) "[f]ailing to advise Patrick that he did not intend to return to the site." Patrick did not present substantial evidence on key elements of each specification. See Wolbers, 673 N.W.2d at 734 (stating directed verdict must be overruled if substantial evidence to support each element of claim).
Patrick's first specification, alleging Waterbeck was negligent in attempting to straighten the shed without proper equipment, is based on Waterbeck's use of his pick-up truck to pull the building up. Patrick testified he did not "think much of that idea but [Waterbeck] was the boss." Patrick acknowledged, however, that Waterbeck's first suggestion for straightening the building was to "bring a crane in to lift the cross piece . . . and put a post under it." Only after Patrick rejected this idea did Waterbeck proceed to use his pick-up truck. Patrick presented no evidence other than his own misgiving to support his claim that Waterbeck's use of his pick-up truck was inappropriate. Although he called an expert witness, that witness did not opine on whether alternate equipment would have alleviated the "undue stress" that, in his opinion resulted from Waterbeck's method of straightening the shed. In the absence of such testimony, we agree with the district court that there was not substantial evidence to support submission of this specification to the jury. See McCleeary v. Wirtz, 222 N.W.2d 409, 412 (Iowa 1974).
With respect to Patrick's second specification, it is generally accepted that "one who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities," unless greater or less knowledge is represented. Restatement (Second) of Torts § 299A, at 73 (1965); see also Hartig, 562 N.W.2d at 431 (finding applicable standard of care was that of manual laborer where defendant did not possess, nor did he represent that he possessed, a higher level of skill or knowledge in the construction of retaining walls).
Waterbeck was a carpenter. He could not be held to know the "structural stresses" his work would place on the shed. Cf. Nugent v. Cudahy Packing Co., 126 Iowa 517, 522, 102 N.W. 442, 443 (1905) (rejecting assertion of contributory negligence because "plaintiff was a carpenter, only, and not presumed to have knowledge as to the sufficiency of the pier"). As Waterbeck was not subject to a heightened duty of care, this specification of negligence failed as a matter of law. See Rieger v. Jacque, 584 N.W.2d 247, 250 (Iowa 1998) (stating whether duty exists is always matter of law for court).
The third specification of negligence, Waterbeck's alleged failure to "secure the shed from the elements when he left the premises," fails for lack of evidence of proximate cause. Generally this element is for the trier of fact, but it may be decided as a matter of law in exceptional cases. Rieger, 584 N.W.2d at 250-51. This is an exceptional case. See Johnson v. Junkmann, 395 N.W.2d 862, 865-66 (Iowa 1986) ("An exceptional case is one in which after construing the evidence in its most favorable light and resolving all doubts in favor of the party seeking to establish proximate cause, the relationship between cause and effect nonetheless is so apparent and so unrelated to defendant's conduct that no reasonable jury could conclude defendant's fault was a proximate cause of plaintiff's injuries.").
The first storm damaged the shed in the month of May. Patrick conceded he waited three months to contact Waterbeck about repairing it. During that time, a portion of the shed was open to the elements, as were the contents. The shed remained open continuously until October, when Waterbeck attempted to straighten it. The shed stayed open into November, when another storm caused it to collapse.
Notably, Patrick testified that the contents remained dry "until that building went down." He further admitted that it did not "make any difference" that the shed was open to the elements. When asked why he did not take steps to secure the shed after the May storm, he stated, "there is lots of open sheds in the country."
We conclude there was not substantial evidence to support Patrick's claim that Waterbeck's failure to secure the shed from the elements in October was the proximate cause of damage to its contents.
Patrick also asserts the district court erred in directing a verdict as to the contents of the shed because "[t]here was no motion for directed verdict relative to the contents based on the negligence claim." We disagree. When Waterbeck's attorney first raised his motion for directed verdict he stated, "as far as the contents, I suggest that that evidence was not the kind that should overcome a Motion for Directed Verdict. There was no testimony as to whether it was the fair market value or the replacement value. He was just all over the world as to what the values were." We believe this mention of the contents was sufficient to preserve error.
The fourth specification, "[f]ailing to return to the site to secure the shed or finish the shed" turns entirely on whether Waterbeck had a duty to do so. Our conclusion that there was not substantial evidence of an enforceable contract to repair the shed necessarily means that there was no substantial evidence of a duty to perform any further work on the shed. See Kunzman v. Cherokee Silo Co., 253 Iowa 885, 891, 114 N.W.2d 534, 537 (1962) ("If a contract imposes a legal duty upon a person the neglect of that duty is a tort founded on contract.").
The same holds true for the fifth specification of negligence: Waterbeck's failure "to advise Patrick that he did not intend to return to the site." This omission was only actionable if Waterbeck had a duty to return to the site and complete work on the shed. Absent substantial evidence of such a duty, Waterbeck was entitled to a directed verdict on this specification.
In sum, we find insubstantial evidence to support submission of any of Patrick's negligence specifications to the jury.
II. Exclusion of Expert Testimony
Patrick's next challenge relates to the district court's exclusion of expert testimony on damages to the shed. In light of our conclusion that Patrick's breach-of-contract and negligence claims as to the shed failed on elements other than damages, we need not address this issue.
III. Disposition
We affirm the district court's grant of Waterbeck's motion for directed verdict as to the breach-of-contract and negligence claims on the shed. We reverse and remand for a new trial on the roof claim.