from the Iowa District Court for Fremont County, Mark J.
interlocutory appeal, a plaintiff challenges the district
court decision granting summary judgment to O & J
Enterprises, LLC, in his tort action.
Randall J. Shanks of Shanks Law Firm, Council Bluffs, for
E. Jones and Elizabeth A. Culhane of Fraser Stryker, PC LLO,
Omaha, Nebraska, for appellee.
by Doyle, P.J., and Mullins and Bower, JJ.
interlocutory appeal, Andres Lechuga challenges the district
court decision granting summary judgment to O & J
Enterprises, LLC (O & J) in his tort action. We find
there are genuine issues of material fact on the questions of
whether O & J had a subcontractor agreement with Garcia
Grain Structures, LLC (Garcia Grain), whether Ezekiel Garcia
was O & J's employee, and whether O & J and
Garcia or Garcia Grain had a principal-agent relationship. On
these issues we reverse the district court's decision
granting summary judgment to O & J and remand for further
proceedings. We find the district court properly granted
summary judgment to O & J on the issue of whether O &
J was in a joint venture with Mid-States Millwright &
Builders, Inc. (MMB) and Garcia or Garcia Grain, and we
affirm on this issue. We affirm in part, reverse in part, and
remand for further proceedings.
Background Facts & Proceedings
following facts are found in the affidavits, depositions, and
documents submitted by O & J in support of its motion for
summary judgment. In the past, MMB, a general contractor,
used companies owned by Juan Manzano-Huerta (Manzano) as
subcontractors to erect grain bins. Manzano first operated as
Manzano Grain Bin Services, LLC (Manzano Grain), and then he
dissolved the company and began operating as O & J.
prior instances when MMB hired Manzano Grain or O & J as
a subcontractor, Manzano and MMB signed a subcontractor
agreement, which required all subcontractors to provide a
certificate showing the subcontractor had workers'
compensation insurance. The agreement also provided Manzano
Grain or O & J could not hire a subcontractor without
prior written permission from MMB. Despite this provision,
Manzano stated he almost always used a subcontractor to
perform the work in erecting grain bins for MMB. The owner of
MMB, Kevin Vier, and the sales manager, Brian Ryerson, stated
they were unaware of this practice and had not given Manzano
permission to hire subcontractors. Vier and Ryerson stated
they believed they had been working with Manzano directly,
either through Manzano Grain or O & J.
2013, Manzano and Manzano Grain came under investigation by
the federal government for knowingly hiring undocumented
workers. See United States v.
Manzano-Huerta, 809 F.3d 440, 442-43 (8th Cir. 2016).
Manzano claimed he paid the workers as subcontractors and
therefore believed they were subcontractors.
Id. at 444. The Eighth Circuit found
"Manzano's relationship with his workers was much
more involved than the typical relationship between a
contractor and his subcontractors." Id. Manzano
pleaded guilty to harboring aliens and conspiring to harbor
aliens. Id. at 442. He was sentenced to thirty-three
months in prison. Id. Manzano was given an enhanced
sentence based on a finding he had attempted to obstruct
justice by encouraging an employee, Ramon Perez, to state
Perez was a subcontractor who had hired the undocumented
workers rather than Manzano. Id. at 446.
now to the facts concerning the incident giving rise to this
action. In 2014, Heartland Coop hired MMB as a general
contractor to build grain bins on Heartland's property
near Randolph, Iowa. MMB entered into a subcontractor
agreement with L & D Construction to build the grain
bins, but L & D was unable to complete the work. Time was
of the essence in finishing the construction of the grain
bins before the fall harvest in 2014.
August 2014, Ryerson, MMB's sales manager, contacted
Manzano to ask O & J to complete the project. This was
between the time Manzano pleaded guilty to the federal
charges and the time he reported to prison. According to
Manzano, he told Ryerson he would get a crew to complete the
job but he could not do it himself because he could not go to
Randolph due to travel restrictions as a result of his
criminal proceedings. Ryerson stated he believed O & J
was going to do the job. Ryerson stated there was no
discussion about O & J hiring a subcontractor to put up
the grain bins in Randolph. Ryerson told other MMB employees
"Juan's crew" was going to put up the grain
created a subcontractor agreement between MMB and O & J,
dated September 2, 2014, for the Randolph job, similar to
contracts the parties had for other projects. Ryerson stated
he left the contract at the MMB office for Manzano to sign
and Manzano picked up the contract and took it with him.
Manzano stated he was not presented with a subcontractor
agreement before the accident. No parties have produced a
signed copy of a subcontractor agreement between MMB and O
& J for the Randolph job.
J states it entered into a written subcontractor agreement
with Garcia Grain, owned by Garcia, to perform work at the
Randolph job site. Lechuga raises concerns about the validity
of the written subcontractor agreement between O & J and
Garcia Grain because there are two copies of the agreement;
Lechuga claims Garcia's signatures on the two documents
do not match. Lechuga claims the written subcontractor
agreement may have been signed and dated at a later time in
an effort to protect O & J and Manzano from liability in
this action. The contract provided, "The Subcontractor
shall make all decisions associated with how they wish to
perform the terms of the Contract and shall be responsible to
determine who, where and the length of the employment of any
people hired by the Subcontractor."
J did not inform MMB it was using Garcia Grain as a
subcontractor. MMB required all of its subcontractors to
submit a certificate showing they had workers'
compensation insurance. Ryerson stated because MMB was
unaware of a subcontractor agreement between O & J and
Garcia Grain, it did not obtain an insurance certificate ...