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Intlekofer v. Reitberry Rental Prop., LLC

Court of Appeals of Iowa

August 7, 2019

JAYNE A. INTLEKOFER, JEFFREY C. INTLEKOFER, CATHERINE A. INTLEKOFER and STEPHEN J. INTLEKOFER, Plaintiffs-Appellants,
v.
REITBERRY RENTAL PROP., LLC, and CITY OF MONTICELLO, IA, Defendants-Appellees.

          Appeal from the Iowa District Court for Jones County, Paul D. Miller, Judge.

         Property owners appeal the district court's grant of summary judgment in their negligence action against the City and a neighboring business.

          Christopher M. Soppe of Pioneer Law Office, Dubuque, for appellant.

          Bradley J. Kaspar and Terry J. Abernathy, Cedar Rapids, for appellee City of Monticello.

          Dillon J. Besser and William H. Roemerman of Elderkin & Pirnie, P.L.C., Cedar Rapids, for appellee Reitberry Rental Properties, LLC.

          Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.

          TABOR, JUDGE.

         After suffering water damage to their property in downtown Monticello, the Intlekofers[1] sued the City of Monticello (the City) and a neighboring business. They alleged the defendants' construction of a parking lot and a new sidewalk or curb caused seepage into the Intlekofers' building. The Intlekofers now appeal the district court's grant of summary judgment for the defendants. Because the Intlekofers' failure to designate an expert on water infiltration was fatal to establishing their negligence case, we affirm the summary-judgment order.

         I. Background Facts and Proceedings

         The Intlekofers own real estate on East Grand Avenue in Monticello. The City owns land just west of the Intlekofers' property. And Reitberry Rental Properties, LLC owns property to the north, abutting the Intlekofers' lot.

         On its land, the City constructed a parking lot stretching to the property line. According to the Intlekofers, the City raised the elevation of the parking lot an estimated twelve to eighteen inches higher than the alley that framed the Intlekofers' property. After the City constructed the new lot, Reitberry improved a sidewalk and curb running the length of the dividing line between its property and the Intlekofers' real estate.

         Some months after the City and Reitberry finished those projects, the Intlekofers noticed rainwater had stopped flowing freely out of the alley bordering the sidewalk and parking lot. The Intlekofers later found water damage to drywall and cabinets on the west side of their building, which housed an asbestos- remediation business. The water wicked up the wall from six inches to four feet in height, according to Stephen Intlekofer's deposition testimony. The Intlekofers replaced the damaged drywall and cabinets. But the Intlekofers alleged they could not stop the influx of the water despite digging out the west wall and spraying foam below the water line. The Intlekofers believed the construction projects by the City and Reitberry obstructed the flow of water away from the building.

         In May 2017, the Intlekofers sued the City for negligently causing water runoff damage. In August 2017, they filed an amended petition joining Reitberry as a defendant.

         To prepare for trial, the City retained Timothy Crabb as an expert witness. Crabb is a building inspector and housing rehabilitation specialist employed by the State of Michigan. Crabb inspected the Intlekofers' building to assess any damage and potential causes for that damage. Crabb observed "no evidence of water infiltration." His inspection report also proffered theories for what may have caused the water damage alleged by the Intlekofers. Those theories included a lack of gutters; cracks between the lower walls that ...


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