from the Iowa District Court for Washington County, Annette
J. Scieszinski, Judge.
City of Riverside appeals the district court's ruling
granting summary judgment in favor of Metro Pavers, Inc. and
DeLong Construction, Inc.
D. Tindal of Nidey Erdahl Tindal & Fisher, Marengo, for
Kristen H. Frey and Lanny M. Van Daele of Kennedy, Cruise,
Frey & Gelner, L.L.P., Iowa City, for appellee Metro
Michael J. Moreland and Nicholas T. Maxwell of Harrison,
Moreland, Webber & Simplot, P.C., Ottumwa, for appellee
Considered by Danilson, C.J., and Potterfield and Bower, JJ.
DANILSON, Chief Judge.
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.
Background Facts and Proceedings.
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
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
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. 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
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 ...