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Rowley v. Harris

Court of Appeals of Iowa

August 16, 2017

KEVIN ROWLEY, Plaintiff-Appellee,
v.
TOM HARRIS and TOM HARRIS d/b/a TOM HARRIS AUCTION CENTER, Defendants-Appellants.

         Appeal from the Iowa District Court for Marshall County, Michael J. Moon, Judge.

         A defendant appeals following the district court's decision in a breach of agreement case. AFFIRMED.

          C. Aron Vaughn and Barry S. Kaplan of Kaplan & Frese, LLP, Marshalltown, for appellants.

          Douglas W. Beals of Moore, McKibben, Goodman & Lorenz, LLP, Marshalltown, for appellee.

          Considered by Vogel, P.J., and Doyle and McDonald, JJ.

          VOGEL, Presiding Judge.

         Tom Harris and Tom Harris d/b/a Tom Harris Auction Center (Harris) appeal the district court's decision concluding Harris breached the parties' agreement to sell Kevin Rowley's property at auction. Because we find substantial evidence to support the district court's conclusions, we affirm.

         Kevin and Beth Rowley dissolved their marriage in 2009. As part of the property distribution, the court ordered the parties to sell their extensive collection of antiques and collectibles at auction. Harris was a witness at the dissolution trial, and the dissolution court noted Harris testified

the property should be collected, taken to [Harris's] storage facilities, identified, marked, photographed and ready for sale. He believed that as many as ten separate and distinct auctions should be held to clear all of the inventory. Harris said that he would have several sales because he would bring in the hodge-podge, the various classifications of antiques and have specialty sales. For example, he stated that he would have a large furniture sale, a toy sale, and an advertising sale. Harris said that the normal commission for sales of that type was 20% plus advertising costs. Because he has dealt with the parties in the past, he said that he would do their sales for a 15% commission plus advertising.

         In the dissolution decree, the court ordered: "The antiques and collectibles of the parties shall be placed into the hands of Tom Harris of Harris Auction for sale and disposition." A dispute later arose regarding what it meant to place the property "into the hands of" Harris. A subsequent hearing occurred, and the court issued a supplemental order that provided:

It was the intent of the undersigned at the time the decree was prepared and filed that the questioned phrase simply mean that the collectibles and antiques of the parties would be entrusted to Harris for sale in accordance with his usual and customary practices. It certainly was not within the contemplation of the court that the parties would themselves be responsible for transporting those items to Harris. Harris explained during trial that his business was fully equipped and had considerable experience in gathering property for auction from off-site locations and transporting those items to his place of business. He testified at the hearing conducted yesterday that he himself preferred to observe, identify, inventory, and transport the various items himself. He further testified that there would be no additional cost savings if the parties, or either of them, transported the property to Harris. He would have to undergo the same procedures once the property arrived at his facility that he would have undertaken if he had collected the property himself.

         The court then ordered that "the responsibility for transporting the parties' antiques and collectibles for auction sale shall be solely that of Tom Harris." Rowley agreed that Harris's fee would include the commission, plus advertising and $15 per hour for transportation. The auctions were held over the course of a year and ultimately grossed $407, 462.50. From this amount, Harris deducted his commission and advertising, along with $6383 for moving expenses and $39, 810 for labor, which amounted to 2654 hours. Rowley filed suit in February 2015 alleging Harris breached the agreement by overcharging for the labor and expenses of moving.

         The matter was tried to the same judge who presided over the dissolution proceedings. The court found "that Harris is entitled to a 15% commission, 10% advertising fee, the buyer premium, [1] and $15 per hour for labor transporting the goods to his place of business." The court noted it was Rowley's position that once the property reached Harris's place of business any work done should be part of the commission. This included the labor to move the property around to ready it for sale and the expenses incurred in doing so. Rowley's contention was supported by his expert's testimony. The court stated the expert testified:

[T]he auctioneer commission usually covers transportation of the property to be sold. If the property is moved about after being placed in the possession of the auctioneer, that expense must be absorbed by the auctioneer. That is also true for cleaning, ...

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