December 21, 2016
WESTCO AGRONOMY COMPANY, LLC., Plaintiff-Counterclaim Defendant-Appellant/Cross-Appellee,
WILLIAM S. WOLLESEN a/k/a BILL WOLLESEN; KRISTI J. WOLLESEN; WILLIAM S. AND KRISTI J. WOLLESEN REVOCABLE TRUST; JOHN W. WOLLESEN; IOWA PLAINS FARMS; and CHAD A. HARTZLER, Defendants-Appellees, IOWA PLAINS FARMS, Counterclaim Plaintiff-Third-Party Plaintiff/Cross-Appellant,
WEST CENTRAL COOPERATIVE, Third-Party Defendant-Appellant/Cross-Appellee.
from the Iowa District Court for Story County, Michael J.
appeal and cross-appeal, both sides raise a number of
challenges to the jury verdict and the court's rulings
denying a new trial and granting summary judgment. AFFIRMED
ON APPEAL; AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
F. Lorentzen, Thomas H. Walton, and Ryan W. Leemkuil of
Nyemaster Goode, P.C., Des Moines, and John A. Gerken of
Wilcox, Gerken, Schwarzkopf, Copeland & Williams, P.C.,
Jefferson, for appellants.
D. Vos and John C. Gray of Heidman Law Firm, L.L.P., Sioux
City, and Samuel L. Blatnick of Kutak Rock, LLP, Kansas City,
Missouri, for appellees.
P. Passarelli and Meredith A. Webster of Kutak Rock, LLP,
Kansas City, Missouri, pro hac vice.
by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
supplier of agricultural products sued a customer for damages
after finding the customer's account contained
insufficient funds to pay for a delivery. The customer filed
counterclaims against the supplier's parent company. A
jury awarded damages on the claims and counterclaims. Both
sides raise a number of challenges to the jury verdict and
the court's rulings denying a new trial and granting
partial summary judgment.
Background Facts and Proceedings
Central Cooperative is an Iowa agricultural cooperative.
Westco Agronomy Company, L.L.C. is a wholly-owned subsidiary
of West Central formed to "streamline the delivery of
agronomy products-fertilizer, seed, chemicals-to the
farmers." We will refer to both as "Westco"
unless otherwise indicated.
Hartzler was hired by Westco as the seed department manager.
Part of his job was to increase seed sales. One of
Westco's customers was Iowa Plains Farms, owned by
William, Kristi, and John Wollesen. We will refer to the
company and its owners as IPF unless otherwise indicated.
purchased seed and fertilizer from Westco and paid Hartzler
directly, purportedly to receive better pricing. Between 2005
and 2010, Hartzler charged IPF more than $6 million. He
retained $487, 315 in "commission."
believed its payments to Hartzler were prepayments for future
products and Westco's documentation confirmed its belief.
In actuality, Hartzler booked the prepayments as payments for
currently purchased products. He charged IPF prices that were
below Westco's cost but recorded higher prices in
Westco's accounting system. The result was a
gradually-accruing deficit which, by 2010, had reached $2.1
million. Hartzler convinced IPF to write three checks
totaling approximately that amount. IPF believed the checks
represented prepayments for the 2011 crop year. Hartzler
applied the payments to the deficit.
following spring, matters came to a head. By this time,
Hartzler had resigned, and Westco told IPF it would not
release any more products due to "internal issues."
sued the Wollesens, IPF, and Hartzler, raising claims of
commercial bribery, theft, conversion, breach of fiduciary
duty, breach of duty of loyalty, ongoing unlawful conduct
under Iowa Code chapter 706A (2011), unjust enrichment,
foreclosure of an agricultural lien, and breach of contract.
Westco sought compensatory and punitive damages and requested
a jury trial. IPF asserted counterclaims and filed a
third-party petition against Westco's parent company,
West Central, raising claims of breach of contract, fraud,
negligent retention, breach of fiduciary duty, conversion,
ongoing unlawful conduct (knowing receipt of proceeds) under
section 706A.2(1)(a), ongoing unlawful conduct (negligent
empowerment) under section 706A.2(5)(b)(4), wrongful
attachment, and lost agricultural profits. Hartzler pled
guilty to federal wire fraud and did not mount a defense in
district court granted IPF's motion for summary judgment
on all but three of Westco's claims. Westco voluntarily
dismissed its breach-of-contract claim, leaving only its
claims for breach of fiduciary duty and ongoing unlawful
conduct for trial.
district court also granted Westco's motion for summary
judgment on IPF's claims for negligent retention,
conversion, ongoing unlawful conduct (negligent empowerment)
under section 706A.2(5)(b)(4), wrongful attachment, and lost
agricultural profits. With regard to the negligent
empowerment claim, the district court found the burden of
proof language in section 706A.2(5)(b)(4) unconstitutional.
The following counterclaims remained for trial: (1) breach of
contract, (2) fraudulent misrepresentation, and (3) ongoing
unlawful conduct (knowing receipt of proceeds) under section
moved for equitable issues to be tried in equity. Westco also
filed a motion for leave to file a third amended petition.
The district court denied the motions. Before jury selection
and again at the close of evidence, Westco renewed its motion
to try equitable issues by equitable proceedings. The
district court again denied the motion.
matter proceeded to trial on Westco's two claims and
IPF's three counterclaims. The jury awarded Westco $485,
315 in damages from Hartzler- an amount equal to the
"commission" Hartzler received from IPF. The jury
awarded IPF $576, 189 in damages from West Central-an amount
equal to the cost of replacement product after Westco failed
to deliver product in 2011.
renewed its motion for directed verdict and moved for
judgment notwithstanding the verdict and for new trial. IPF
filed a motion for additur and for new trial. The district
court denied the motions.
appeal, Westco contends (A) its equitable claims should have
been tried by equitable proceedings, (B) the jury rendered
inconsistent verdicts, and (C) the district court erred in
denying its motion for judgment notwithstanding the verdict.
On cross-appeal, IPF contends (A) it is entitled to a new
trial on its ongoing criminal conduct (knowing receipt of
proceeds) claim, (B) the district court erred in granting
summary judgment in favor of West Central on its ongoing
criminal conduct (negligent empowerment) claim, and (C) the
district court erred in denying IPF's motion for additur.
New Trial by Equitable Proceedings
is no right to a jury trial generally in cases brought in
equity." Weltzin v. Nail, 618 N.W.2d 293, 296
(Iowa 2000). Westco characterizes its claims that survived
summary judgment as equitable and argues they should have
been tried to the district court rather than the jury. Error
was preserved on this issue and we proceed to the merits of
the court's ruling, reviewing it for an abuse of
discretion. See Morningstar v. Myers, 255 N.W.2d
159, 161 (Iowa 1977) (stating, when both legal and equitable
issues are presented, the order of which is tried first
"is a matter which lies within the trial court's
discretion and ordinarily is to be decided on considerations
of efficiency, conservation of judicial time and avoidance of
district court concluded Westco pled its
breach-of-fiduciary-duty and ongoing-unlawful-conduct claims
as legal claims:
The ongoing criminal conduct count has been pled in tort and
likewise seeks the legal remedies of damages, both
compensatory and [treble] damages under the provisions of
Iowa Code section 706A.3(12)(b)(3). The breach of fiduciary
duty claim has been pled as a legal action. As noted by the
Iowa Supreme Court in Weltzin v. Nail, 618 N.W. 293,
299 (Iowa 2000):
A breach of fiduciary duty claim is not an individual tort in
its own right at common law . . . it is usually brought at
law, bootstrapped by a tort like negligence or fraudulent
misrepresentation (citations omitted).
(Footnote omitted.) The district court also indicated the
motion to try the claims by equitable proceedings was an
untimely effort "to resurrect" equitable claims
that were previously dismissed. We discern no abuse of
discretion in the court's ruling.
Westco made an unconditional jury demand. See Iowa
Ct. R. 1.902(3) ("Unless limited to a specific issue,
every demand shall be deemed to include all issues triable to
a jury. If a limited demand is filed, any other party may,
within ten days thereafter or such shorter time as the court
may order, file a demand for a jury trial of some or all
other issues."). The unrestricted nature of the demand
suggests the surviving claims were triable at law to a jury.
Westco's primary request for relief in conjunction with
its breach-of-fiduciary-duty claim was damages based on
Hartzler's claimed acceptance of bribes from the
Wollesens. A request for damages is a hallmark of a law claim
triable to a jury. See Weltzin, 618 N.W.2d at 300
("[A]n action seeking recovery of monetary damages will
generally give rise to a right to trial by jury (alteration
in original)). Although Westco also sought "such other
relief as may be just and equitable, " we are persuaded
"the mere prayer for [equitable relief] is not enough to
justify the trial of the issues on the equity side."
Lynch v. Schemmel, 155 N.W. 1019, 1023 (Iowa 1916);
see also In re McIntosh's Estate, 159 N.W. 223,
226 (Iowa 1916) ("The proceeding always was and has
remained a proceeding at law . . . .").
asks us to look beyond its primary request for relief.
See Weltzin, 618 N.W.2d at 297 (citing precedent
focusing on "the nature of the case itself
rather than solely the remedy"). It characterizes its
breach-of-fiduciary-duty claim as one premised on the breach
of a duty of loyalty rather than the breach of the standard
of care. This characterization does not assist Westco because
a breach of the duty of loyalty has been viewed as one
sounding in tort or contract-both law actions. See Condon
Auto Sales & Serv., Inc. v. Crick, 604 N.W.2d 587,
600 (Iowa 1999) (finding it unnecessary to determine
"whether a separate cause of action exists for breach of
loyalty, either in tort or contract" (emphasis
to Westco's ongoing unlawful conduct claim. Again, Westco
alleged it "suffered damages." While Westco also
sought the equitable remedies of a constructive trust,
temporary restraining order, or preliminary injunction, these
remedies were requested as a means of collecting on a
judgment for money damages.
Westco argues its "conspiracy claims are
equitable." However, it did not plead independent claims
of conspiracy and, in any event, the rationale articulated
above applies equally to these claims.
conclude the district court did not abuse its discretion in
denying Westco's motion to have its "equitable"
claims tried to the court.
filed a motion for new trial, claiming, in part, that the
jury verdict was inconsistent. The district court summarily
denied the motion. On appeal, Westco reprises this argument.
Its contention is premised on the jury's answers to the
Question No. 3 Did Westco prove that Chad Hartzler
engaged in ongoing unlawful conduct?
Yes X No __
Question No. 12, [21, 30] Did Westco prove that Bill
Wollesen [Kristi Wollesen, or John Wollesen] engaged in
ongoing unlawful conduct?
Yes __ No X
answers, Westco argues, did not comport with the jury
instructions on ongoing unlawful conduct. The primary
instruction based ongoing unlawful conduct on commercial
bribery. The instruction stated:
Westco claims Chad Hartzler engaged in ongoing unlawful
conduct. To prove Chad Hartzler committed ongoing unlawful
conduct, Westco must prove that Chad Hartzler
1. Committed commercial bribery for financial gain
as defined in Instruction No. 23, on a continuing basis, as
defined in Instruction No. 25, or
2. Knowingly received any proceeds, as defined in Instruction
No. 27, of commercial bribery being committed for
financial gain on a continuing basis.
(Emphasis added.) Commercial bribery was defined in pertinent
part as follows:
4. The payments of money were offered and delivered by Bill
Wollesen, Kristi Wollesen, or John Wollesen in exchange for
Chad Hartzler engaging in a series of business transactions
which Bill Wollesen, Kristi Wollesen,
or John Wollesen had reason to know, as defined
in Instruction No. 28, were in conflict
with Chad Hartzler's employment relation with and duties
owed to Westco.
to Westco, "In answering question No. 3 affirmatively,
the jury necessarily found that Hartzler engaged in
commercial bribery . . . in a series of business transactions
occurring over a period of years, and that one or more of the
Wollesens also engaged in those transactions." At the
same time, the jury found the Wollesens did not engage in
commercial bribery, even though the definition of commercial
bribery required involvement by the Wollesens. Westco asserts
"[t]hese answers are inconsistent and
Iowa Supreme Court discussed "inconsistent
verdicts" in State v. Halstead, 791 N.W.2d 805,
807 (Iowa 2010). The court noted "the term
'inconsistent verdicts' is often used in an imprecise
manner and may include a wide variety of related, but
nonetheless distinct, problems." Halstead, 791
N.W.2d at 807. The court referred to a scenario involving a
defendant convicted of conspiracy where the remaining
confederates are acquitted. Id. at 808. This
scenario, the court stated, would produce "an
inconsistent verdict because it takes more than one person to
conspire." Id. (citing Michelle Migdal Gee,
Annotation, Prosecution or Conviction of One Conspirator
as Affected by Disposition of Case Against
Coconspirators, 19 A.L.R.4th 192, 198-204 (1983); C.T.
Drechsler, Annotation, Inconsistency of Criminal Verdicts
as Between Two or More Defendants Tried Together, 22
A.L.R.3d 717, 720-21 (1968)).
Hartzler/Wollesen scenario is similar. The jury found
Hartzler committed ongoing unlawful conduct that the jury
instructions premised on commercial bribery and found the
Wollesens did not. At first blush, these findings would
appear inconsistent. But, our standard of review in this
civil action, the language of the jury instructions, the
jury's findings and non-findings, and the evidence the
jury considered, lead us to conclude otherwise.
review the district court's conclusion as to whether
answers are inconsistent for correction of errors at
law." Clinton Physical Therapy Servs., P.C. v. John
Deere Health Care, Inc., 714 N.W.2d 603, 609 (Iowa
2006). "It is fundamental that a jury's verdicts are
to be liberally construed to give effect to the intention of
the jury and to harmonize the verdicts if it is possible to
do so." Hoffman v. Nat'l Med. Enters.,
Inc., 442 N.W.2d 123, 126 (Iowa 1989). "The test is
whether the verdicts can be reconciled in any reasonable
manner consistent with the evidence and its fair inferences,
and in light of the instructions of the court."
Id. at 126-27. "Only where the verdicts are so
logically and legally inconsistent that they cannot be
reconciled will they be set aside." Id. at 127.
"[T]he determination of whether two answers are
inconsistent requires the court to consider how the jury
could have viewed the evidence and how that view of the
evidence fits into the requirements of the instructions or
the law applicable to the case." Clinton, 714
N.W.2d at 609.
noted, the jury found that Hartzler committed ongoing
unlawful conduct. But the jury left blank the next question
asking for a finding that Hartzler committed ongoing unlawful
conduct either by "committing] commercial bribery for
financial gain on a continuing basis" or by
"[k]nowingly receiving] any proceeds of commercial
bribery for financial gain on a continuing basis." We
can reasonably infer from the absence of a response to this
question that the jury determined Hartzler committed ongoing
unlawful conduct by means other than commercial bribery. The
instructions read as a whole would have allowed the jury to
make such a finding. See State v. Fintel, 689 N.W.2d
95, 104 (Iowa 2004) ("Jury instructions are not
considered separately; they should be considered as a
whole."). While the instruction setting forth the
elements of ongoing unlawful conduct referred to commercial
bribery, a definitional instruction "relating to
[o]ngoing [c]riminal [c]onduct" broadly defined another
phrase-"[s]pecified unlawful activity"-as "any
act, including any preparatory or completed offense,
committed for financial gain on a continuing basis, that is
punishable as an indictable offense under the laws of
Iowa." The jury could have considered this definitional
instruction and reasonably could have found Hartzler's
guilty plea to wire fraud rather than commercial bribery was
the predicate offense. We conclude the district court did not
err in denying Westco's posttrial motion premised on the
inconsistency of the verdicts. See Iowa R. Civ. P.
1.9034 ("The instructions shall be such as will enable
the jury to answer the interrogatories and return the
verdict. If both are harmonious, the court shall order the
Sufficiency of the Evidence - Fraudulent
Misrepresentation, Breach of Contract
contends the district court erred in denying its motion for
judgment notwithstanding the verdict on IPF's
fraudulent-misrepresentation and breach-of-contract claims.
Our review is for correction of errors at law. See Winger
v. CM Holdings, LLC, 881 N.W.2d 433, 445 (Iowa 2016). We
must determine whether substantial evidence supports the
elements of each claim. Id.
respect to both claims, Westco argues Hartzler was the person
who engaged in fraudulent misrepresentations and breached the
contract and his actions could not be attributed to the
company. The jury received several instructions on how to
decide whether Hartzler had authority to act on Westco's
behalf. The first required IPF to prove Hartzler's
"conduct was within the scope of his actual or apparent
authority." The second stated, in relevant part, that a
principal is liable for the acts of its agent only if
"[t]he agent was acting within the scope of his
employment . . . with respect to the transactions at
issue" or "[t]he agent's conduct was within the
scope of his actual or apparent authority." A third
instruction explained that if "Hartzler's conduct
was a substantial deviation from Westco's business or
interests, it is outside the scope of his authority."
jury learned Hartzler was the agronomy manager in charge of
the company's sales and marketing efforts. Westco gave
him authority to enter into contracts for the sale of
chemicals and seed, to price these products, to enter the
contracts into Westco's system, to invoice customers, and
to apply payments to specific accounts.
knew IPF established its account "on a pre-pay
basis"; Bill Wollesen expressly declined a credit
application "and said he intended to pre-pay for
product." Hartzler applied payments received from IPF to
accounts receivable instead of affording IPF a prepayment
credit as Bill Wollesen requested. The prices on IPF's
monthly statements generated by Westco did not match the
prices on Westco's "deal sheets."
used a consignment account at Westco to conceal the product
he sold IPF. According to West Central's chief executive
officer, the account was created for legitimate purposes
involving farmers with multiple landlords. Hartzler
"abused" the account. Westco's internal auditor
found large amounts of IPF products in the consignment
account for more than thirty days. She also found multiple
below-cost sales to IPF. She was not aware that anyone
contacted IPF about these sales. She agreed the access
Hartzler had to West Central's sales journals allowed him
to invoice IPF for prices that were different than those to
which he and the Wollesens agreed. She informed Westco's
general manager and supervisor of Hartzler, who realized
Hartzler had large balances in consignment for IPF with
minimal prepay "to go against that"-"in
essence extended $2 million credit."
comptroller was aware of at least one statement found in
Hartzler's office that said "Do Not Mail." He
admitted, "We don't know for sure what was sent to
the Wollesens." Although Westco's certified credit
analyst testified some statements were simply not mailed to
customers because there was a zero balance on the account
rather than to camouflage illegal activity, it was the
jury's prerogative to weigh this evidence. See Jasper
v. H. Nizam, Inc., 764 N.W.2d
751, 772 (Iowa 2009). Westco's outside auditor informed
Westco prior to 2010 that he suspected Hartzler was engaging
evidence amounted to substantial evidence in support of a
determination that Hartzler's conduct was within the
scope of his employment or was within the scope of his actual
or apparent authority. See Mechanicsville Trust &
Sav. Bank v. Hawkeye-Sec.
Ins. Co., 158 N.W.2d 89, 91 (Iowa 1968) ("The
rule is well settled that a principal is responsible for the
fraud of his agent if he has entrusted to the agent a matter
which puts him in a position to perpetrate the fraud
complained of while the agent is executing the transaction
within the scope of his employment."). We recognize an
exception "where the conduct and dealings of the agent
clearly raise a presumption that he would not communicate the
fact in controversy." Id. at 92. But the jury
reasonably could have found Westco possessed enough
information to detect the fraud even without Hartzler's
disclosure. See Turner v. Zip Motors, 65
N.W.2d 427, 430 (Iowa 1954) ("If he was a salesman for
defendant, we think further there was substantial evidence he
was acting within the apparent scope of his authority in what
he did, including the conversion of plaintiff's car by
the fraudulent sale. Of course, no one claims the defendant
had authorized O'Brien to attempt to defraud the
plaintiff by selling his automobile, pocketing the money and
absconding. But he was within the apparent scope of his
found substantial evidence to support the jury's finding
that Hartzler acted within the actual or apparent authority
granted by Westco, we conclude the district court did not err
in denying Westco's motion for judgment notwithstanding
the verdict on IPF's fraudulent-misrepresentation and
Motion for New Trial - Section 706A.2 jury instruction
claim for ongoing unlawful conduct based on the knowing
receipt of proceeds was submitted to the jury. The district
court instructed the jury as follows:
IPF has alleged that Chad Hartzler committed certain
specified unlawful activity. For Westco to be liable for Chad
Hartzler's alleged specified unlawful activity, IPF must
1. Chad Hartzler committed commercial bribery, and
a. Westco knowingly permitted Chad Hartzler to commit
specified unlawful activity and Westco expected to benefit
from the specified unlawful activity, or
b. Chad Hartzler's committed the specified unlawful
activity while acting within the scope of his actual or
apparent authority, as defined in Instruction No. 50, and his
conduct was authorized, requested, or tolerated by a high
managerial agent at Westco.
(Emphasis added.) The jury found Westco did not engage in
ongoing unlawful conduct. IPF moved for a new trial on the
ground that the district court erred in failing to give its
proposed instruction on this count. The district court denied
appeal, IPF contends the instruction submitted by the court
"erroneously required IPF to prove that Chad Hartzler
had committed commercial bribery." In its view,
"This instruction was factually incorrect, as the
Wollesens and IPF adamantly testified that Hartzler had not
been bribed. It also was legally incorrect, as it improperly
omitted a number of other offenses (such as theft or fraud)
that constitute specified unlawful activity within the
meaning of the statute."
preserved error on this claim by offering a proposed
instruction. Although the proposed instruction did not
identify theft or fraud as the specified unlawful activity,
IPF sought an instruction referring to "specified
unlawful activity" as defined in a separate instruction.
Our review is for correction of errors at law. See Alcala
v. Marriott Int'l, Inc., 880
N.W.2d 699, 707 (Iowa 2016).
discern no error in the district court's instruction. The
instruction required the jury to find Hartzler committed
commercial bribery, but the instruction next required a
finding that Westco either knowingly permitted Hartzler to
engage in "specified unlawful activity" or
committed "specified unlawful activity" "while
acting within the scope of his actual or apparent
authority." Because the instruction tied Westco's
knowledge or Hartzler's scope of authority to
"specified unlawful activity" rather than
commercial bribery, we decline to find the instruction
erroneous. We further conclude the instruction, read in
conjunction with the remaining instructions, allowed the jury
to find that, while Hartzler acted with the actual or
apparent authority of Westco in contracting with IPF and in
making representations to IPF, he did not act with
Westco's authority in engaging in specified unlawful
activity. Accordingly, the jury reasonably found that Westco
did not engage in ongoing unlawful conduct.
Summary Judgment Ruling - Constitutionality of Section
contends the district court erred in granting summary
judgment in favor of West Central on IPF's statutory
negligent empowerment claim. See Iowa Code §
706.A.2(5). Section 706A.2(5)(b)(4) states:
5. Negligent empowerment of specified unlawful
a. It is unlawful for a person to negligently allow property
owned or controlled by the person or services provided by the
person, other than legal services, to be used to facilitate
specified unlawful activity, whether by entrustment, loan,
rent, lease, bailment, or otherwise. . . . .
(4) The plaintiff shall carry the burden of proof by a
preponderance of the evidence that the specified unlawful
activity occurred and was facilitated by the property or
services. The defendant shall have the burden of proof by a
preponderance of the evidence as to circumstances
constituting lack of negligence and on the limitations on
damages in this subsection.
district court found subsection four unconstitutional. The
court relied on Hensler v. City of Davenport, 790
N.W.2d 569, 587-89 (Iowa 2010), dealing with a statute
setting forth parental duties following children's
involvement in "occurrences" and establishing a
rebuttable presumption of negligence after a second
Hensler, the court cited the "well-settled law
that in an ordinary negligence action the mere fact an
incident occurred does not mean a party is negligent."
790 N.W.2d at 587. The court held, "allowing a fact
finder to presume negligence and causation based on the
happening of an 'occurrence, ' rather than finding
negligence and causation based on the facts, is arbitrary and
irrational in light of the multiple factors that can cause
the 'occurrence, ' as defined by the statute."
Id. at 588; see also City of Sioux City v.
Jacobsma, 862 N.W.2d 335, 341 (Iowa 2015) ("In
Hensler, we considered a substantive due process
challenge to an ordinance that imposed a rebuttable
presumption that a parent failed to exercise control over a
minor child when that child engaged in 'occurrences'
that amounted to unlawful acts. We found the rebuttable
presumption was arbitrary and irrational in light of the
multiple factors that could cause juveniles to engage in
behavior contrary to the ordinance." (citation
contrast to the statute involved in Hensler, section
706A.2(5)(b)(4) requires the plaintiff to prove the
defendant's negligence by a preponderance of the
evidence; there is no presumption of negligence. See
Model Ongoing Criminal Conduct Act § 5(e)(2)(D)
(1993). We conclude the provision is
constitutional. Accordingly, we reverse the summary judgment
ruling on IPF's claim of negligent empowerment and remand
for further proceedings.
Adequacy of Damage Award to IPF
filed a posttrial motion requesting "additur of $805,
499 to the jury's award of $576, 189 . . . for its claims
of breach of contract and fraudulent misrepresentation
against West Central." IPF claimed, "The $576, 189
amount represents only the additional amounts that IPF paid
third parties to procure agronomy supplies in excess of the
prices it had contracted to pay West Central. The amount does
not include any of the uncontested prepayment amounts that
West Central procured from IPF through fraud." The
district court summarily denied the motion. Our review is for
an abuse of discretion. See McHose v. Physician &
Clinic Servs., Inc., 548 N.W.2d 158, 162 (Iowa Ct. App.
verdict should not be set aside as either too large or too
small simply because the reviewing court would have reached a
different conclusion." Cowan v. Flannery, 461
N.W.2d 155, 158 (Iowa 1990). "[W]here the verdict is
within a reasonable range as indicated by the evidence the
courts should not interfere with what is primarily a jury
jury's verdict was well within the range of evidence. The
jury was instructed it could consider amounts IPF prepaid to
Westco. But nothing in the damage instructions on either the
breach-of-contract or fraudulent-misrepresentation counts
required the jury to award sums reflecting these prepayments.
To the contrary, the jury was instructed to award only
"foreseeable" damages. The jury reasonably could
have found the additional sum IPF requested was not
foreseeable, whereas the sum IPF had to expend following
Westco's decision to curtail delivery was foreseeable. We
affirm the district court's denial of IPF's motion
affirm all aspects of the district court proceedings except
the summary judgment ruling finding section 706A.2(5)(b)(4)
unconstitutional. We reverse and remand for further
proceedings on that count.
ON APPEAL; AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
 In connection with its prayer for
injunctive relief, Westco pled, "[T]here is a
possibility that a judgment for money damages might be
difficult to execute."
 The general rule is that the
conviction of only one defendant in a conspiracy prosecution
cannot stand where the disposition of the charges against all
other alleged conspirators is by acquittal. See Gee,
19 A.L.R.4th 192, § 3[a]. Iowa adheres to this general
rule. Id. (citing State v. Davis, 297 N.W.
274 (Iowa 1941), State v. Keul, 5 N.W.2d 849 (Iowa
1942); State v. Lockhart, 39 N.W.2d 636 (Iowa
1949)); see also State v. Boyer, 342 N.W.2d 497, 499
 The drafters stated:
The burden of proof is the standard tort burden, as
repeated in Section 6, subsection (c). The burden of proof
with respect to lack of negligence and evidence of special
defenses is placed on the defendant in conformance with the
normal rule that "the burden of proving a fact is put on
the party who presumably has peculiar means of knowledge
enabling him to prove the fact." 9 J. Wigmore, Evidence
2486, at 275 (3d ed. 1940), G.E.J.
Corp. v. Uranium Aire,
Inc., 311 F.2d 749, 751 (9th Cir. 1962) (value of
ore in mine); Selma, Rome and Dalton Railroad
Co. v. United States, 139 U.S. 560,
567, 568 (1891) (stating general rule).
See Model Ongoing Criminal Conduct Act §