December 21, 2016
PRO COMMERCIAL LLC, Plaintiff-Appellee,
MALLORY FIRE PROTECTION SERVICES, INC., AND WESTERN SURETY COMPANY, Defendants-Appellants.
from the Iowa District Court for Story County, Timothy J.
appeal the trial court's judgment in this breach of
contract action. AFFIRMED.
Linebaugh and Angela Morales of Faegre Baker Daniels LLP, Des
Moines, for appellants.
Brenton D. Soderstrum of Brown, Winick, Graves, Gross,
Baskerville & Schoenebaum, P.L.C., Des Moines, for
by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
matter arises out of a construction contract dispute. The
matter was tried to the district court. The district court
found defendant subcontractor, Mallory Fire Protection
Services, Inc. (Mallory), breached its contract with
plaintiff general contractor, Pro Commercial, LLC (Pro
Commercial). The district court found Pro Commercial suffered
$262, 105.36 in damages and entered judgment accordingly. On
appeal, Mallory contends Pro Commercial failed to prove its
damages were reasonable, the trial court erred in not
requiring the replacement subcontractor to testify as to its
hourly rates, Pro Commercial failed to mitigate its damages
properly, and Pro Commercial failed to provide the
pre-termination notice required under their subcontract
parties disagree on the applicable standard of review. The
matter was tried at law. See Iowa R. App. P.
6.904(3)(a). Generally, our review would be for the
correction of legal error. See Iowa R. App. P.
6.907; NevadaCare, Inc. v. Dep't of Human
Servs., 783 N.W.2d 459, 465 (Iowa 2010); EnviroGas,
L.P. v. Cedar Rapids/Linn Cty. Solid Waste Agency, 641
N.W.2d 776, 780 (Iowa 2002). Under this standard, the
district court's findings of fact "shall have the
effect of a special verdict." Iowa R. App. P. 6.907. The
district court's findings of fact are binding if
supported by substantial evidence. See Land O'Lakes,
Inc. v. Hanig, 610 N.W.2d 518, 522 (Iowa 2000); Van
Oort Constr. Co. v. Nuckoll's Concrete Serv., Inc.,
599 N.W.2d 684, 689 (Iowa 1999). Evidence is substantial
"when a reasonable mind would accept it as adequate to
reach a conclusion." Falczynski v. Amoco Oil
Co., 533 N.W.2d 226, 230 (Iowa 1995). Evidence is viewed
in a light most favorable to the trial court's judgment.
See Van Oort Constr., 599 N.W.2d at 689; Arbie
Mineral Feed Co. v. Nissen, 179 N.W.2d 593, 595 (Iowa
1970) ("We do not weigh the evidence; we only decide if
there is a proper basis upon which the trial court could find
as it did."); Grall v. Meyer, 173 N.W.2d 61, 63
(Iowa 1969) ("[W]e construe the evidence broadly to
uphold, rather than defeat, the trial court's
judgment."). Evidence is not insubstantial "merely
because [the court] may draw different conclusions from it;
the ultimate question is whether it supports the finding
actually made, not whether the evidence would support a
different finding." Raper v. State, 688 N.W.2d
29, 36 (Iowa 2004); see Portzen Constr., Inc. v. Cal-Co
Insulation, Inc., No. 13-0758, 2014 WL 2347821, at *4
(Iowa Ct. App. May 29, 2014) ("Our role as the reviewing
court is not, however, to dissect the record anew to reach
our own factual findings.").
contends a less deferential standard of review is required
here. The district court adopted Pro Commercial's
proposed findings and conclusions verbatim, Mallory argues.
See NevadaCare, 783 N.W.2d at 465 ("We have
recognized counsels' submission of proposed findings of
fact and conclusions of law can be extremely valuable in
assisting the district court, especially in highly technical
or complicated cases. Nonetheless, we have criticized the
practice of a district court's verbatim adoption of the
proposed findings of fact and conclusions of law prepared by
a prevailing attorney because 'the decision on review
reflects the findings of the prevailing litigant rather than
the court's own scrutiny of the evidence and articulation
of controlling legal principles.'" (citations
omitted)). Our comparison of the district court's order
with Pro Commercial's proposed findings and conclusions
shows the district court did not adopt Pro Commercial's
posttrial filing verbatim. Instead, the district court's
findings and conclusions used some of Pro Commercial's
proposed language but made significant and material changes,
changes which demonstrate the exercise of independent
judgment. We thus reject Mallory's contention that less
deferential review should be applied here.
2013, Iowa State University (ISU) solicited bids for
installation of a fire sprinkler system in one of its
dormitories, Friley Hall. Pro Commercial submitted the low
bid on the project. This bid included a bid from Mallory as
subcontractor. ISU accepted the bid.
project was split in two phases: 1A and 1B. Because ISU
wanted the dormitory to be available to students when classes
commenced, the ISU-Pro Commercial agreement included strict
completion deadlines, which were enforced by a $100 per day
per room liquidated damages clause, a total of $20, 200 for
every day Pro Commercial was late.
required Pro Commercial to post a performance bond. In turn,
Pro Commercial's bonding company required Pro Commercial
to obtain a bond from Mallory. Mallory had bonding
limitations at $250, 000. To meet those requirements, Pro
Commercial and Mallory entered into three separate
subcontract agreements: (1) a $250, 000 Phase 1A labor
subcontract; (2) a $250, 000 Phase 1B labor subcontract; and
(3) a $515, 000 Phase 1A and 1B subcontract covering costs of
materials and bonding. Mallory obtained bonds from Western
Surety Company; Pro Commercial was named the obligee.
the Pro Commercial-Mallory subcontract agreements, Mallory
was to submit payment applications. Pro Commercial was to pay
Mallory once it had been paid by ISU. Pro Commercial could
terminate Mallory if the subcontractor became insolvent,
failed to supply sufficiently skilled workers, or failed to
meet its contractual obligations. If terminated, Mallory was
entitled to payment after the work was completed as long as
the unpaid balance exceeded replacement costs.
district court found Mallory started falling behind from the
outset. As a result, the project began to fall further and
further behind. ISU and Pro Commercial were dissatisfied with
the number of workers Mallory had on the job and the hours
worked. Mallory promised Pro Commercial and ISU it would
increase the number of workers, but Mallory never did. The
more the project fell behind, the more Pro Commercial became
concerned ISU would enforce the liquidated damages clause. In
April 2013, Pro Commercial contacted RNL Services (RNL) to
inquire whether RNL would be able to complete the job if
Mallory failed to get back on schedule. RNL told Pro
Commercial it would be able to complete the job on time. Pro
Commercial decided to allow Mallory to try to get back on
Commercial sent Mallory an email on April 23, 2013,
expressing its frustration with Mallory's performance and
telling Mallory to consider the email the first notice of
noncompliance. Despite the warning, the project continued to
fall further behind schedule. On May 16, 2013, Pro Commercial
sent Mallory a second email notifying Mallory that Pro
Commercial would terminate the agreement if Mallory was not
able to get back on schedule. Around this time, ISU
encouraged Pro Commercial to change subcontractors, and Pro
Commercial renewed its discussions with RNL.
23, Mallory informed Pro Commercial that Mallory was in a
distressed financial position. Mallory argued it was owed
money on the project. Pro Commercial claimed no money was due
because ISU had not yet paid for work on the project. Mallory
told Pro Commercial that if it was not paid now, Mallory
would not be able to pay its workers. Mallory asked if Pro
Commercial would advance this expense. Pro Commercial told
Mallory it would consider it, but on May 28, Pro Commercial
declined the request. Mallory's attorney called Pro
Commercial the next day and left a voicemail message.
Mallory's attorney stated if Pro Commercial would not pay
Mallory on the project or bankroll its employees, Mallory
would no longer supply workers and its last day would be the
end of the week. Mallory's attorney told Pro Commercial
it should do what Pro Commercial had to do. Pro Commercial
shared this voicemail with ISU's construction manager.
point, the project was at least ten weeks behind schedule.
Pro Commercial hired RNL to complete the project. The
district court found Pro Commercial hired RNL to finish Phase
1A for $525, 000. RNL was able to get the project nearly
caught back up. Because of this, ISU did not seek liquidated
Commercial thereafter filed a suit against Mallory for breach
of the subcontract agreements. Pro Commercial contended it
was supposed to pay Mallory $765, 000 for the completion of
Phase 1A. Pro Commercial argued, in the end, its total costs
for Phase 1A were $1, 027, 105.36 and therefore it suffered
$262, 105.36 in damages. The district court found these
damages reasonable and entered judgment accordingly. In the
alternative, the court ordered Western Surety to pay on the
bond. Mallory timely filed this appeal.
begin with general principles of contract law. A breach of
contract occurs when a party, "without legal excuse . .
. fails to perform any promise which forms a whole or a part
of the contract." Molo Oil Co. v. River City Ford
Truck Sales, Inc., 578 N.W.2d 222, 224 (Iowa
1998). To prevail on such a claim, the party must show:
(1) [T]he existence of a contract, (2) the terms and
conditions of the contract, (3) that [plaintiff] has
performed all the terms and conditions required under the
contract, (4) the defendant's breach of the contract in
some particular way, and (5) that plaintiff has suffered
damages as a result of defendant's breach.
Royal Indem. Co. v. Factory Mut. Ins. Co., 786
N.W.2d 839, 846 (Iowa 2010) (citing Molo Oil, 758
N.W.2d at 224); see 25A C.J.S. Damages
essential element of a breach of contract claim is that the
breach caused a party to incur damages."
NevadaCare, 783 N.W.2d at 468. "The purpose of
awarding damages in a breach of contract action is to place
the injured party in the position it would have occupied if
the contract had been performed." Portzen
Constr., 2014 WL 2347821, at *6. Damages are limited to
those that were foreseeable or reasonably contemplated by the
parties when they entered into the agreement. See Kuehl
v. Freeman Bros. Agency, Inc., 521 N.W.2d 714, 718 (Iowa
1994). The burden of proving damages is on the party seeking
them. See Royal Indem., 786 N.W.2d at 847; Data
Documents, Inc. v. Pottawattamie Cty., 604
N.W.2d 611, 616 (Iowa 2000). In construction cases, if a
subcontractor breaches, a general contractor is
"entitled to recover the damages it incurred to complete
the contract following [the subcontractor's] discharge
from the project to the extent that completion costs exceed
the unpaid balance of the contract price." Portzen
Const., 2014 WL 2347821, at *6; see Lewis Elec. Co.
v. Miller, 791 N.W.2d 691, 695 (Iowa 2010); Bruner
& O'Connor on Construction Law § 19:78
(2016) ("The damage measure is the reasonable cost to
complete the contract in conformance with its terms, less
unpaid contract funds.").
plaintiff must establish a reasonable basis from which
damages can be ascertained; it cannot be too uncertain or
speculative. See Data Documents, 604 N.W.2d at 616;
Natkin & Co. v. R.F. Ball Constr. Co., 123
N.W.2d 415, 422 (Iowa 1963). But the amount of damages need
not be proven to a mathematical certainty. Data
Documents, 604 N.W.2d at 616. There only needs to be
"sufficient evidence to allow the factfinder to make an
approximate estimate of the loss." Id. at 617.
"[I]f the uncertainty lies only in the amount of
damages, recovery may be had if there is proof of reasonable
basis from which the amount may be inferred." Natkin
& Co., 123 N.W.2d at 422; see Patterson v.
Patterson's Estate, 189 N.W.2d 601, 605 (Iowa 1971);
Orkin Exterminating Co. v. Burnett, 160 N.W.2d 427,
430 (Iowa 1968); 25A C.J.S. Damages § 371
("A nonbreaching party need only provide a stable
foundation for a reasonable estimate of damages."). A
plaintiff's failure to provide written evidence of its
damages in a breach of contract case is not fatal to its
claim. See Samann L.C. v. Victory Lodging, Inc., No.
09-1160, 2010 WL 1375186, at *4 (Iowa Ct. App. Apr. 8, 2010).
Damages can be established in part or in whole by witness
testimony. See id. at *4-5. "[W]hether [a
witness's testimony] was credible evidence [of damages]
is best left to the trial judge who was in the best position
to judge the credibility and make the judgment call as to
whether the damages were sustained by the evidence, and if
they were, what the damages were worth." Id. at
contends Pro Commercial failed to establish damages.
Specifically, Mallory argues Pro Commercial failed to prove
RNL's completion costs were reasonable and failed to
provide documentation regarding the average hourly rate
charged by RNL. We review the evidence in the light most
favorable to the district court's decision. See Van
Oort Constr., 599 N.W.2d at 689.
is substantial evidence in support of the district
court's findings. Pro Commercial included Mallory's
bid in its bid for the Friley project. Pro Commercial's
final bid for the project was $1, 843, 547, which included
all materials, suppliers, and subcontractors. Pro
Commercial's bid was the lowest, and not by any
meaningless sum. Pro Commercial's bid was about $500, 000
lower than the next lowest bid and about $1.1 million lower
than the bid estimate. According to ISU's construction
manager, when soliciting for bids: "[W]hat you want is a
nice tight group where all the numbers are about the same
number. Then you know that the documents are understandable
and that everybody interpreted them the same, and you've
got a representative-a good competitive number." Pro
Commercial's bid raised red flags for ISU.
Representatives from ISU met with Pro Commercial and Mallory,
concerned that Mallory and Pro Commercial may have
underestimated the cost of the project. Mallory informed Pro
Commercial it was comfortable with its bid. When RNL
eventually came onto the project, the final contractual price
Pro Commercial and RNL agreed to was $525, 000 for Phase 1A,
including labor and materials. This amount was much closer to
the "nice tight group" of other bidders on the
project, which others in the industry apparently believed to
be a reasonable cost to do the project.
looming liquidated damages clause also supports the
reasonableness of Pro Commercial's damages. Mallory began
working on the Friley project on March 18, 2013. The Pro
Commercial-Mallory subagreements were terminated on May 31,
2013. At that time, the project was at least ten to twelve
weeks behind schedule. Under the ISU-Pro Commercial
agreement, the first of the rooms had to be habitable by July
26, 2013. If the rooms were not habitable, Pro Commercial
faced liquidated damages in the amount of $20, 200 per day
until project completion. Before the Pro Commercial-Mallory
subagreement was terminated, ISU was contacting Pro
Commercial weekly about Mallory being behind. Once Mallory
was off the project, ISU was very concerned about whether the
project was going to get done. Pro Commercial was very
concerned the liquidated damages clause would be enforced.
Pro Commercial did not have time to solicit bids from other
subcontractors. So Pro Commercial turned to RNL. Pro
Commercial had had satisfactory experiences with RNL in the
past, and RNL was familiar with the project. The final Pro
Commercial-RNL contract price included remedial work,
including groove-cutting piping, change orders, increased
crew sizes, and overtime in order to get the project up to
date. Pro Commercial made sure to have the costs of the
change orders included in the $525, 000, rather than having
them be added on top, thus keeping the costs lower.
contends the damages award is not reasonable because RNL
failed to provide information regarding the hourly rate of
its laborers. Rusty Crabtree, RNL's owner, refused to
answer this question at trial because the project was paid
for on a lump-sum basis and because he was fearful the
information would reveal confidential information that could
be used against RNL (RNL is not a union company). We cannot
conclude the lack of this testimony undermines the district
court's findings regarding damages. The reasonableness of
the damages was verified through other sources.
argues Pro Commercial failed to comply with the
pre-termination provision of the parties' subagreements.
Under the parties' subagreements, Pro Commercial was
required to provide Mallory written notice two days prior to
terminating the subagreements. Mallory contends Pro
Commercial failed to do this and thus improperly terminated
the subagreements. The standard of review is for correction
of errors at law. See Iowa R. App. P. 6.907;
NevadaCare, 783 N.W.2d at 465.
purpose of pre-termination notice is to allow the breaching
party the chance to cure. See Cedar Rapids Television Co.
v. MCC Iowa LLC, 524 F.Supp.2d 1127, 1136 (N.D. Iowa
2007) (applying Iowa law and stating the purpose of
pre-termination notice is to allow the notified party the
chance to contemplate and prepare for the action); AHC
Physicians Corp. v. Dulock, 504 S.E.2d 464, 465
(Ga.Ct.App. 1998) (stating the purpose of notice requirements
is to "notify [a party] of a breach and give him
opportunity to cure it"); 58 Am. Jur. 2d Notice
§ 2 ("The principal purpose of notice is to alert a
party to the nature and substance of the action against the
party."); Bruner & O'Connor on
Construction Law § 18:41. "The nature of
notice required by contract depends on the provisions of the
contract." 58 Am. Jur. 2d Notice § 11.
"Notice of termination must be 'clear, definite,
unambiguous and unequivocal, and it properly may not be so
characterized unless its meaning can be apprehended without
explanation or argument' in order to be effective."
Cedar Rapids Television Co., 524 F.Supp.2d
at 1136 (citations omitted).
after the project continued to fall further and further
behind, Pro Commercial sent Mallory two emails. The first
email was sent April 23, 2013. It discussed Pro
Commercial's dissatisfaction with Mallory's
performance and the number of workers Mallory had on the job.
As relevant here, it stated:
Consider this email your notice of 'Non-Compliance with
your contract' and you have 48 hours, 2 days, to man the
project with at least 8 men until school is out and then 2
crews of at least 8 men per crew. If you do not man the job
per this email, with this as the minimum manpower required,
we will contact another fire sprinkler company to take over
your job and will pay them whatever their cost is to complete
the job (See Section 11 of your contract).
Commercial allowed Mallory to continue working after it sent
this email. Then on May 16, 2013, Pro Commercial sent the
second email. Steve Aldred, Pro Commercial's owner, wrote
in part, "But again, you are in violation of your
contract a second time. . . . If you cannot follow your
contractual rules let me know now. I will contact your bond
company and put them on notice as to the state of your
emails complied with the notice provision of the parties'
subagreements. They were in writing. The language of the
emails was "clear, definite, unambiguous and
unequivocal" and plainly informed Mallory what would
happen if Mallory was not able to cure. Id. The
emails were sent at least two days prior to termination. The
fact Pro Commercial did not terminate the contract within the
immediate two days after notice is not material to the issue.
See AHC Physicians Corp., 504 S.E.2d at 465-66
(noting plaintiff was served thirty-days' notice in April
urging the plaintiff to become compliant with the contract or
else he would be terminated but was not terminated until
Commercial's emails also substantially complied with the
spirit and purpose of the notice provisions. See Gray v.
Bicknell, 86 F.3d 1472, 1479 (8th Cir. 1996) (the fact
that the notified party could "construct a clearer
notice of breach by adding the words 'breach' and
'termination' to [the notifying party's] letter
does not mean that [notifying party's] letter [was]
inadequate" because notice of a breach need not "be
the clearest statement possible" to be effective);
Kiewit Offshore Servs., Ltd. v. Dresser-Rand Global
Servs., Inc., No. CIVIL ACTION H-15-1299, 2016 WL
4564472, at *6 (S.D. Tex. Sept. 1, 2016) ("The doctrine
of substantial compliance is applicable to contractual notice
provisions." (citing S. Tex. Elec. Co-Op v.
Dresser-Rand Co., 575 F.3d 504, 507 (5th Cir. 2009)));
Andrews v. Victor Metal Prods. Corp., 411 S.W.2d
515, 518 (Ark. 1967) (finding the defendant employer
substantially complied with the notice provision and
therefore the plaintiff employee was not prejudiced);
Wallick v. Period Homes, Ltd., 555 S.E.2d
863, 868 (Ga.Ct.App. 2001) ("Substantial compliance with
notice provisions, however, may suffice so long as the
contemplated information is communicated."); AHC
Physicians Corp., 504 S.E.2d at 465-66 (finding that
although the first notice provided by the plaintiff's
employer "may not have stated in so many words that [the
plaintiff] had breached his employment agreement, they were
more than mere criticisms of his performance" and it
plainly stated plaintiff needed to cure, and the
employer's second notice plainly stated if plaintiff did
not become compliant, he would be terminated); see also
Met-Coil Sys. Corp. v. Columbia Cas. Co., 524 N.W.2d
650, 654 (Iowa 1994) (finding, in insurances cases,
substantial compliance with notice provisions are required);
Prior v. Schmeiser, 69 N.W. 525, 526 (Iowa 1896)
(stating that in breach of contract cases, a party does not
need to prove perfect performance, only that it substantially
performed); Des Moines & Denver Land & Tree Co.
v. Polk Cty. Homestead & Trust Co., 45 N.W. 773,
774-75 (Iowa 1890) (stating a party in a breach of contract
case need only prove it substantially performed, which is
determined by the finder of fact on a case-by-case basis).
The notice provisions were meant to allow Mallory the chance
to cure. Pro Commercial gave Mallory two chances to become
compliant, each time informing Mallory in plain and
unambiguous terms what would happen if Mallory did not.
the notices failed to comply strictly or substantially with
the parties' agreement, Mallory's argument fails.
Mallory was not ready, willing, and able to remedy the
breach. Mallory's attorney called Pro Commercial and
stated because Pro Commercial had not agreed to bankroll
Mallory's labor payroll, Mallory "would not be able
to supply men for the project any longer and Friday [May 31]
would be their last day, " and Pro Commercial would
"need to do what [it] need[ed] to do." It is clear
Mallory was no longer going to have workers on the site. If
Mallory was not going to work, then they would not be able to
get the project back up to schedule and therefore cure the
breach. Providing notice under these circumstances would have
been an exercise in futility.
raises another issue related to damages. Mallory contends Pro
Commercial and RNL backdated their agreement, demonstrating
fraudulent intent and the unreliability of the evidence
establishing damages. Our review is for correction of errors
at law. See Iowa R. App. P. 6.907.
avoid liquidated damages, Pro Commercial had RNL commence
work on the project in early June. At that moment, time was
of the essence, and the two had only an oral agreement
regarding the project. Pro Commercial and RNL continued to
work under the oral agreement for months. When Pro Commercial
and RNL finalized the contract in September 2013, they
backdated it to June 6, 2013, the time work commenced. The
backdating appears merely to memorialize when RNL and Pro
Commercial first came to oral agreement. Oral agreements can
later be memorialized into written agreements. See Emp.
Benefits Plus, Inc. v. Des Moines Gen. Hosp., 535 N.W.2d
149, 153-54 (Iowa Ct. App. 1995) ("An oral contract may
exist even though the parties intended to reduce it to
writing at a later date. If the oral agreement is complete as
to its terms and has been finally agreed to, it will
generally be enforceable. Under these circumstances, the
writing is merely an expression of a previously completed
contract." (citations omitted)). A memorialization such
as this relates back because it reflects the parties'
intent to have an agreement from the earlier date. See In
re Alcom Am. Corp., 156 B.R. 873, 879 (Bankr. D.D.C.
1993) (finding a formal security agreement executed in
December but backdated to August of that year should relate
back because "it reflects [the parties to the security
agreement's] intent, manifested in back-dating the formal
security agreement, to memorialize their August 1983
agreement to provide for a security interest"); Lyon
v. Reames Foods, Inc., Civ. A. No. 90-2447-Z, 1992 WL
101649, at *4-5 (D. Kan. Apr. 16, 1992) (applying Iowa
substantive law, the court found an oral agreement entered
into by the parties and later reduced to writing and
backdated to when the oral agreement was entered into was a
valid contract and the backdating was memorializing the oral
agreement); In re Owensboro Canning Co., 82 B.R.
450, 456 (W.D. Ky. 1988) (finding a valid and enforceable
security interest where the formal security agreement was
backdated to relate back to an earlier agreement already in
existence); Schwartz v. Houss, No. 21741/04, 2005 WL
579152, at *3 (N.Y. Sup. Ct. Jan. 3, 2005) ("A writing
memorializing an oral agreement need not be made
contemporaneously with that oral agreement."). Like the
district court, we conclude there is no issue here.
Mallory contends Pro Commercial failed to mitigate its
damages. Our review is for correction of errors at law.
See Iowa R. App. P. 6.907. While the plaintiff in a
breach of contract case has a duty to be reasonably diligent
in mitigating its damages, see Kuehl, 521 N.W.2d at
719, the burden is on the defendant to show the plaintiff
failed in this duty. See Hunter v. Bd. of Trs. of
Broadlawns Med. Ctr., 481 N.W.2d 510, 517 (Iowa 1992);
R.E.T. Corp. v. Frank Paxton Co., 329
N.W.2d 416, 422 (Iowa 1983). "Generally, a party who has
been wronged by a breach of contract may not unreasonably
remain idle and allow damages to accumulate but must attempt
to minimize damages." 22 Am. Jur.2d Damages
§ 361. "A finding that cheaper or more effective
options than the ones chosen were available to plaintiff
would not necessary negate a finding that plaintiffs, in
selecting the option pursued, were faithful to their
obligation of reasonable diligence." Bushman v.
Cuckler Bldg. Sys., 421 N.W.2d 145, 149 (Iowa Ct. App.
1988), rejected on other grounds by Chiafos v. Mun. Fire
& Police Ret. Sys. of Iowa, 591 N.W.2d 199, 203
(Iowa 1999); see Waters v. Wolfe, No. 07-0619, 2008
WL 238617, at *4 (Iowa Ct. App. Jan. 30, 2008) (holding
"[t]he fact other options are available does not negate
a finding" that a party was "faithful to their
obligation of reasonable diligence" and an opposing
party "cannot use hindsight to argue the methods used .
. . were not the most effective"). Pro Commercial did
not fail to mitigate its damages. By employing RNL quickly,
Pro Commercial avoided paying liquidated damages to ISU or
additional overtime to RNL to get caught up after falling
even further behind. Pro Commercial did not sit idly by and
allow damages to pile up. See 22 Am. Jur. 2d
Damages § 361. We find no error.
foregoing reasons, we affirm the judgment of the district
 The $250, 000 subagreement price for
Phase 1A between Pro Commercial and RNL only included labor.
Material and costs were contemplated in the separate $515,
000 subagreement between the parties.