from the Iowa District Court for Woodbury County, Duane E.
Earthmoving, L.L.C. appeals the district court's denial
of a motion for new trial.
C. Gray and Jason D. Bring of Heidman Law Firm, LLP, Sioux
City, for appellant.
Deck of Deck Law, LLP., Sioux City, for appellee.
Considered by Mullins, P.J., and Bower and McDonald, JJ.
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.
Background Facts and Proceedings
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.
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.
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
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 ...