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Boatman v. Country Earthmoving, L.L.C.

Court of Appeals of Iowa

May 17, 2017

JEREMY BOATMAN and KRISTI BOATMAN, Plaintiff-Appellees,
v.
COUNTRY EARTHMOVING, L.L.C., a/k/a CME, Defendant-Appellant.

         Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer, Judge.

         Country Earthmoving, L.L.C. appeals the district court's denial of a motion for new trial.

          John C. Gray and Jason D. Bring of Heidman Law Firm, LLP, Sioux City, for appellant.

          Tod J. Deck of Deck Law, LLP., Sioux City, for appellee.

          Considered by Mullins, P.J., and Bower and McDonald, JJ.

          BOWER, Judge.

         Country Earthmoving, L.L.C. (Country) appeals the district court's denial of its motion for new trial. Country claims the district court failed to strike and improperly allowed what amounted to expert testimony from a non-expert witness. We find Country was not unfairly surprised nor prejudiced by the testimony. We affirm the district court.

         I. Background Facts and Proceedings

         Jeremy and Kristi Boatman (Boatmans) hired Country to construct a retaining wall. The retaining wall failed, and the Boatmans contacted Don Sewalson, a contractor, in order to determine what caused the failure and what could be done to repair the wall. The Boatmans then filed suit on May 18, 2015, alleging breach of contract, breach of expressed and implied warranties, negligence, and fraudulent concealment.

         The Boatmans listed Sewalson as a fact witness and noted he would testify as to the nature of the work performed by Country, the cause of the failure, and damages. The parties were required to designate expert witnesses on or before October 27; no designation was made by the Boatmans. The Boatmans provided no supplemental discovery answers indicating Sewalson should be considered an expert witness.

         On May 17, 2016, one week before the trial, Country filed a motion in limine requesting any expert testimony be excluded as no expert witnesses were disclosed. The district court denied the motion but attempted to address the situation with the following colloquy:

THE COURT: Let the record reflect we're outside the presence of the jury, and I'd like to make a record on some matters. Mr. Bring, when I indicated my inclination to allow the testimony of mister - I was going to - Sewalson, I'll just say, I gave you the opportunity of continuance of trial or to speak with him in advance of his testimony. Obviously, you elected not to ask for a continuance, correct?
MR. BRING: Correct, Your Honor.
THE COURT: Are you going to want to speak with him in advance of his testimony, or tell me how ...

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