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Paper's Lumber & Supply v. Bradly Schipper and Kimberly Schipper

February 27, 2013

PAPER'S LUMBER & SUPPLY, PLAINTIFF-APPELLEE,
v.
BRADLY SCHIPPER AND KIMBERLY SCHIPPER, DEFENDANTS-APPELLANTS, AND ERIC BIRELY AND HEATHER BIRELY D/B/A E&H ENTERPRISES, DEFENDANTS-APPELLEES. ERIC BIRELY D/B/A E&H ENTERPRISES, PLAINTIFF/COUNTER-DEFENDANT,
v.
BRADLY SCHIPPER AND KIMBERLY SCHIPPER, DEFENDANTS/COUNTER-PLAINTIFFS.



Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.

The opinion of the court was delivered by: Eisenhauer, C.J.

Appeal from the foreclosure of mechanic's liens. AFFIRMED.

Considered by Eisenhauer, C.J., and Danilson and Bower, JJ.

Bradly and Kimberly Schipper appeal from the district court order foreclosing a mechanic's lien and rejecting their affirmative defenses. They contend there was not substantial performance entitling the contractor to foreclosure of its mechanic's lien. The Schippers also challenge the reasonableness of the attorney fee award. We affirm.

I. Background Facts and Proceedings

Brad Schipper and Eric Birely were friends and jointly coached their sons' baseball team. Eric is a firefighter and, with his wife Heather, does home construction as E & H Enterprises.

In 2008 the Schippers' home was damaged by a falling tree. They contracted with Birely to demolish the house and construct a new house. Work began in late 2008. Birely sent monthly invoices, which the Schippers paid in January, February, and March 2009. An April 3 invoice was not paid. In April, relations between the parties deteriorated, with the Schippers questioning costs and charges. On April 16 Birely's attorney prepared four written change orders for the Schippers to sign to cover oral requests for changes. The attorney also prepared a notice of default, listing five violations of the construction contract. Birely's attempt to discuss the problem with the Schippers on Friday evening April 17 after a baseball game ended when tempers flared. Birely said, "Let's just go our separate ways, and we will talk about this another time."

Birely was not scheduled to work on the home on Saturday because he was scheduled to work as a firefighter. Birely worked on the home Sunday and Monday. Because he was concerned about being locked out of the job site, Birely put all his tools, equipment, and supplies in his truck or on his trailer and took them with him on Monday. He also advised the building materials supplier, Paper's Lumber and Supply, to pick up materials not yet installed so Paper's would avoid the risk of nonpayment.

On Monday evening Birely sent an e-mail to the Schippers:

Brad and Kim,

We have the basement cleaned up so that you can empty your storage container. If there is a hole cut in floor try not to put any thing under it, also try to keep area under the bathrooms and the south wall under kitchen clear otherwise the entire area on the south side of the bearing wall is ok for storage. It will be dusty so you may want to cover with plastic. The north side of bearing wall needs to be left open as this is where all of the mechanicals will be going in. The upstairs has been cleaned up in preparation for insulation and drywall. The tubs and valves are all installed with the exception of the soaker tub as it needs a plug since there is no shower on that. Be careful in garage as siding and soffit are sitting on the ground and the soffit dents very easily. We also need to know what kind of finish you want in each room, also paint colors for each room. The baseball equipment will be sent with my boys to the game the game tomorrow along with roster and positions and pitch count info. If you have any questions please call or email me. Thanks, Eric

Birely was not scheduled to work on the home on Tuesday because he was scheduled to work as a firefighter.

Tuesday evening Kim Schipper sent Birely an e-mail. Birely learned of the e-mail Wednesday morning on his way home from his firefighting job when ...


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