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City of Riverside v. Metro Pavers, Inc.

Court of Appeals of Iowa

July 6, 2017

CITY OF RIVERSIDE, Plaintiff-Appellant,
v.
METRO PAVERS, INC. and DELONG CONSTRUCTION, INC., Defendants-Appellees.

         Appeal from the Iowa District Court for Washington County, Annette J. Scieszinski, Judge.

         The City of Riverside appeals the district court's ruling granting summary judgment in favor of Metro Pavers, Inc. and DeLong Construction, Inc.

          Eric D. Tindal of Nidey Erdahl Tindal & Fisher, Marengo, for appellant.

          Kristen H. Frey and Lanny M. Van Daele of Kennedy, Cruise, Frey & Gelner, L.L.P., Iowa City, for appellee Metro Pavers.

          Michael J. Moreland and Nicholas T. Maxwell of Harrison, Moreland, Webber & Simplot, P.C., Ottumwa, for appellee DeLong.

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

          DANILSON, Chief Judge.

         The City of Riverside (Riverside) appeals the district court's ruling granting summary judgment in favor of Metro Pavers, Inc. (Metro Pavers) and DeLong Construction, Inc. (DeLong). Riverside contends the matter should be viewed as a discovery dispute and the district court erred in failing to consider the available range of sanctions. On our review of the record, we find the district court did not err in granting summary judgment and therefore affirm.

         I. Background Facts and Proceedings.

         Riverside filed the petition in this matter on February 3, 2015, alleging Metro Pavers breached the parties' contract by improperly constructing a street, Commercial Drive, causing cracking of the surface of the street. Metro Pavers filed a third-party petition against its subcontractor, DeLong. This lawsuit is the second lawsuit filed by Riverside with respect to this dispute. Riverside previously filed a petition against Metro Pavers in 2012 raising the same claims, but the case was dismissed for want of prosecution after Riverside failed to timely disclose an expert witness or the amount of damages sought. Riverside subsequently filed the petition in this case.

         In order to meet its burden of proof in this case, Riverside was required to present evidence establishing Metro Pavers' and DeLong's noncompliance with the design specifications called for by the contract. All the parties agree Riverside could not meet its burden of proof and establish damages in this case without expert testimony. The parties' discovery plan required Riverside to designate all expert witnesses by January 18, 2016, prior to the August 16, 2016 trial date. This deadline was intended to allow time for the subsequent designation of expert witnesses by Metro Pavers and DeLong prior to trial. However, Riverside made no initial disclosures as required by Iowa Rule of Civil Procedure 1.500 and did not designate any expert witnesses by the January 18 deadline.

         DeLong filed a motion for summary judgment on March 25, 2016, requesting the district court grant summary judgment because Riverside could not prevail on its cause of action without an expert witness.[1] Riverside filed an untimely resistance to the motion for summary judgment on April 21, 2016, one day prior to the summary-judgment hearing. Riverside attached an expert-witness affidavit to the resistance. The district court granted the motion for summary judgment in a ruling entered April 26, 2016. The court held:

[Riverside] made no initial disclosures as required by Iowa Rule of Civil Procedure 1.500, and as implemented through the discovery plan, until a filing was made on the eve of hearing.
Moreover, [Riverside] did not designate any expert witness by the January 18, 2016 deadline (factored as 210 days before the August 16, 2016 trial date). In this case, [Riverside] must provide expert testimony to carry its burden to prove causation for the cracked street concrete which is the subject of this suit. Also, [Riverside] is unable to prove the nature and extent of the damages it claims-without an expert witness. In sum, [Riverside]'s non-participation in case ...

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