Opinion
No. 3-202 / 02-0156
Filed August 27, 2003
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.
Plaintiff appeals from a decision dismissing his petition, following non-jury trial, in a breach of contract action. AFFIRMED.
Terrance Walker, Des Moines, appellant pro se.
Michael Wunn and Mark Feldmann of Beving, Swanson Forrest, P.C., Des Moines, for appellee.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Plaintiff-appellant Terrence Walker (hereafter the "plaintiff" or the "appellant") began working for the defendants in December 1999. As relevant to the lawsuit involved in this appeal, he was to work on (1) selling memberships in or programs of "Million Miles of Motivation," which conducted motivational programs for businesses and other organizations, and (2) overhauling, expanding, developing, and/or modifying the defendants' Internet websites. The defendants ended the parties' business relationship in February 2000. In March 2000 the plaintiff filed a "Petition in Equity for Breach of Contracts." He stated that he sought "damages and other relief" for the alleged "breaches of oral contracts by Defendants," and prayed for damages for "breach of agreements [and] oral contracts." Following non-jury trial, the trial court found against the plaintiff and dismissed his petition. The plaintiff appeals.
As a preliminary matter we note the parties' disagreement concerning the scope of our review. The appellant asserts: "Review of this equity proceeding is de novo." The appellees assert he is wrong, and that "[t]he correct scope of review in breach of contract actions tried at law is for correction of errors at law." The appellant titled his lawsuit as a "Petition in Equity." The portions of the record presented in the appendix do not clearly show whether the case was filed in the equity docket or the law docket. Under such circumstances we will assume, absent evidence to the contrary, that because the case was titled a "Petition in Equity" it was filed in the equity docket. We will therefore review the matter de novo. See Iowa R.App.P. 6.4.
Although we may consider and rely on parts of the record that the parties have not chosen to include in the appendix, see Iowa R.App.P. 6.15(1)( a), we do not often choose to accept that burden and will not do so in this case.
Appellant first asserts he "is not required to recite his legal theory of recovery in this action," and his "theories of anticipatory damages should be considered in light of this error." The trial court found that as alleged by the plaintiff, relevant to his claims, and shown by the evidence, there were two oral contracts between the parties, one for selling Million Miles of Motivation memberships or programs, and one for Internet website work. The trial court found the plaintiff did not prove breach of either contract. As best we can understand the appellant's first claim of error, he asserts the trial court erred in not considering claims of conversion and fraud or fraudulent misrepresentation.
A party may be limited to a specific theory of recovery when the party limits a pleading or presentation to the court to exclusive theories. Rouse v. Mahaska State Bank, 605 N.W.2d 6, 10 (Iowa 2000). We have in the first paragraph of this opinion set forth language from the plaintiff's petition, which asserts a claim for breach of (oral) contracts. The plaintiff's petition, never amended, states and is limited to this one, exclusive legal theory. The appellant was thus arguably limited to this one theory at trial. We need not rest our decision concerning this issue on this ground, however, for the trial court stated it had considered fraudulent misrepresentation and conversion and found that neither applied. We read this as a finding the appellant did not prove his claim for damages under either of those theories. We reach that same conclusion.
Appellant next asserts that "good faith" and "terminable at will" defenses were not available to the defendants. More specifically, he claims the trial court relied in part on unpled defenses.
No such "defense" was pled by the defendants, and the trial court's initial ruling mentioned neither. In ruling on the plaintiff's post-trial motions the trial court noted the plaintiff's claim that he should be compensated on an hourly basis for web design work, reiterated its findings that the agreement was for the plaintiff to be compensated on the basis of percentage of sales and that no sales resulted from plaintiff's work, and then stated the contract for web design work was terminable at will. We read this finding or statement to mean that the portion of the contract calling for plaintiff to perform design services was terminable at will, not that any obligation to pay earned compensation was terminable at will. We fully agree with this determination and adopt it as our own. The plaintiff's lawsuit is based on alleged breaches of contracts consisting of failure to pay earned compensation, not for improper termination of employment or a business relationship. We conclude the trial court did not improperly rely on a "terminable at will defense."
In his post-trial motions the plaintiff asserted the defendants acted in bad faith in crediting to a new employee sales of motivational programs to three businesses he had contacted. In its initial ruling the trial court had found the agreement between the parties provided that if the plaintiff's calls to potential customers set up meetings as a result of which Million Miles of Motivation memberships were sold the plaintiff would receive forty percent of the gross membership fee. It had also found that the plaintiff's calls did not result in meetings which resulted in the sales in question, basing this finding on testimony from the three customers that the sales to them resulted from calls from a different employee who worked for the defendants. In ruling on the post-trial motions the trial court did not rely on a defense of "good faith," but rather merely rejected the argument that the defendant had breached a covenant of good faith and found that instead the defendant had acted in good faith at all times. Upon de novo review we fully agree with this determination, and find no error.
Appellant next asserts the trial court erred in concluding that any damages under the website contract would be measured by the contract. He asserts damages should be measured by reasonably anticipated sales of products through the website. In both the trial court and on appeal he suggests his damages consist of, or should be estimated as being, $35 per hour for approximately 150 hours of website development work, damages of $5,250.
The evidence shows, and the trial court found, that there was no agreement for the plaintiff to be paid by the hour for website work, that the parties' agreement was that the plaintiff would be paid a percentage of profits from any sales made as a result of the plaintiff's website work, and that no products had been sold through any website work by the plaintiff. Upon our de novo review we adopt these findings as our own.
Trial was held some twenty-one months after the parties' business relationship ended. Damages based on reasonably anticipated profits would have been based purely on speculation, as no website sales had even at that late date resulted from the plaintiff's work. Upon our de novo review we conclude the appellant failed to prove damages related to his website work, whether measured by the terms of the contract itself or by reasonably anticipated profits, and affirm on this issue.
Appellant also asserts the trial court erred in not awarding trial attorney fees. The plaintiff himself signed and filed his petition, the petition made no claim for attorney fees, the plaintiff represented himself at trial, and in its initial ruling the trial court did not address attorney fees. In his post-trial motions the plaintiff asserted an entitlement to attorney fees, based on allegedly having retained an attorney for "partially representing him in this matter," and "bad faith breaches" by the defendants. In ruling on the motions the trial court noted that the plaintiff cited no statutory or contract basis for attorney fees, was not the prevailing party, and presented no evidence of any attorney fees. Appellant again on appeal asserts attorney fees are appropriate because of "bad faith . . . breach" by the defendants.
As noted above, the trial court was correct in finding no bad faith by the defendants. Further, as found by the trial court, the appellant presented no evidence of attorney fees. We therefore affirm on this issue.
We have carefully considered all issues raised on appeal, and find those not specifically discussed herein are controlled by the foregoing, involve no reversible error, or are otherwise without merit.