Hilsman v. Phillips, No. 8-1031/08-0289 (Iowa App. 2/4/2009)
| Decision Date | 04 February 2009 |
| Docket Number | No. 8-1031/08-0289.,8-1031/08-0289. |
| Court | Iowa Court of Appeals |
| Parties | ROBERT HILSMAN and KAREN NORBY, Plaintiffs-Appellants, v. TIMOTHY PHILLIPS d/b/a PHILLIPS REFRIGERATION, Defendant-Appellee. |
Appeal from the Iowa District Court for Chickasaw County, Bruce B. Zager, Judge.
Plaintiffs appeal from the district court's directed verdict and ruling denying their motion for a new trial following a jury verdict in favor of defendant. AFFIRMED.
Judith O'Donohoe of Elwood, O'Donohoe, Braun & White, Charles City, for appellants.
David L. Riley of McCoy, Riley, Shea & Bevel, P.L.C., Waterloo, for appellee.
Considered by Sackett, C.J., and Eisenhauer and Doyle, JJ.
Robert Hilsman and Karen Norby appeal from the district court's directed verdict and ruling denying their motion for a new trial following a jury verdict in favor of Timothy Phillips d/b/a Phillips Refrigeration (Phillips). We affirm the judgment of the district court.
Robert Hilsman purchased a wood-burning stove from Phillips in October or November 2005 to help heat a large pole building he owned. The pole building was constructed in 1995 and insulated with cellulose insulation. It was located next to the home Hilsman shared with his girlfriend, Karen Norby. Hilsman and Norby planned to operate a business specializing in leather crafts out of the building.
Hilsman placed the wood-burning stove in the north end of the building where they planned to display and sell their leather crafts. The south end of the building, which housed Hilsman's tools, pickup, snowplow, and motorcycles, was heated by an LP furnace that had been installed by Phillips some years prior. Hilsman lined the north wall of the building with a steel sheet and set the stove on blocks about three to four feet away from that wall. He then contacted Phillips to install a chimney for the stove.
Hilsman told Phillips he would like the chimney to go out the side of the building and up the outside, referred to as a "tee-supported installation." In order to install the chimney in that manner, Phillips had to order a tee support, which was not immediately available. Hilsman and Norby were anxious to have the chimney installed so the stove would be operational for the grand opening of their store on December 22, 2005. Phillips told them the only way the chimney could be installed before the tee support came in was to install it inside the building, through the ceiling and out the roof. That type of installation is referred to as a "ceiling-supported installation." Hilsman and Norby decided to have the chimney installed in that manner. Cory Phillips, Timothy's son, began installing the chimney for Hilsman and Norby on December 19. He used a chimney flue manufactured by Simpson Dura-Vent. Cory installed a single-wall vent pipe from the wood-burning stove to the ceiling. He then attached an anchor plate to the ceiling and used double-wall vent pipe, which is specially designed to withstand high temperatures, in the attic. A sticker on the pieces of the double-wall vent pipe instructed that a two-inch clearance should be maintained between the pipe and any combustible material. In order to maintain that clearance, Cory notched a groove into a two-by-four piece of wood near the pipe in the attic and packed the cellulose insulation in the attic away from the pipe. He finished installing the chimney on December 20, and Hilsman and Norby began using it almost every day thereafter.
On January 22, 2006, Hilsman was in the building with the wood-burning stove running all day. At about 8:00 p.m., he went into the house to call his brother and eat dinner with Norby. He left the fire in the stove going because he planned to go back out to the building. While he was in the house, Hilsman noticed smoke coming from the building. He ran outside and tried to open a door on the south end of the building. All he could see was black smoke. He yelled at Norby to call 911. The fire was reported at 8:11 p.m. that night. The building and most of the items in it were destroyed by the fire.
Michael Keefe, a special agent with the state fire marshal's office, investigated the fire. He examined the scene of the fire three days after it occurred. By that time, the roof on the north end of the building had collapsed. He concluded that the structural damage to the building, specifically "the damage to the wood, the damage to the tin and the damage to the stovepipe," indicated the fire started above the ceiling in the northwest corner of the building.
Hilsman and Norby filed a petition against Phillips in July 2006, seeking damages for breach of contract, negligence, and intentional infliction of emotional distress.1 The case proceeded to a jury trial. At the close of the plaintiffs' evidence, Phillips moved for a directed verdict as to the breach of contract and products liability claims against it. The district court granted Phillips's motion and submitted the case to the jury on only the plaintiffs' negligence claim. The jury returned a verdict in favor of Phillips, finding he was not at fault. Hilsman and Norby filed a motion for new trial, asserting the court erred in directing a verdict in Phillips's favor and that the jury's verdict on their negligence claim was not supported by sufficient evidence. The district court denied that motion.
Hilsman and Norby appeal. They claim the district court erred in (1) refusing to submit their breach of contract, breach of implied warranty, and strict liability claims to the jury; (2) allowing Phillips's expert to testify; and (3) denying their motion for new trial on their negligence claim.
We review the district court's grant of a directed verdict for correction of errors at law. Felderman v. City of Maquoketa, 731 N.W.2d 676, 678 (Iowa 2007).
In doing so we take into consideration all reasonable inferences that could be fairly made by the jury and view the evidence in the light most favorable to the nonmoving party. If there is substantial evidence in the record to support each element of a claim, the motion for directed verdict must be overruled. Evidence is substantial when reasonable minds would accept the evidence as adequate to reach the same findings. Our role, then, is to determine whether the trial court correctly determined that there was insufficient evidence to submit the issue to the jury.
Id. (internal citations and quotations omitted).
Hilsman and Norby first claim the district court erred in refusing to submit their breach of contract claim to the jury. In order to establish that claim, the plaintiffs were required to prove the following: (1) the existence of a contract; (2) the terms and conditions of the contract; (3) performance of those terms and conditions; (4) Phillips's breach of the contract; and (5) damages as a result of the breach. Molo Oil Co. v. River City Ford Truck Sales, Inc., 578 N.W.2d 222, 224 (Iowa 1998).
Hilsman and Norby argue they presented sufficient evidence at trial to establish "there was a contract for safe installation of a chimney flue system for a wood burning stove." Phillips admitted he entered into a contract with the plaintiffs to install a chimney for their wood-burning stove.2 There was also sufficient evidence presented at trial, which Phillips does not seriously contest on appeal, that a term of the contract was that the chimney would be installed safely. The parties' dispute thus centers on whether Phillips breached that contract and caused the plaintiffs' damage.3
"A party breaches a contract when, without legal excuse, it fails to perform any promise which forms a whole or a part of the contract." Id. Hilsman and Norby assert they presented sufficient evidence establishing Phillips failed to perform his promise to install the chimney safely by showing he did not install it according to the manufacturer's instructions. Upon viewing the evidence in the light most favorable to the plaintiffs and affording them all reasonable inferences that could fairly be made, we must agree.
George Wandling Sr., the plaintiffs' expert, testified at length about Phillips's failure to follow the manufacturer's installation instructions for the ceiling-supported chimney installed in the plaintiffs' building. He noted that the instructions required Phillips to install an attic insulation shield above the ceiling where the chimney passes into the attic, which Phillips did not do. The purpose of such a shield according to the manufacturer's instructions "is to prevent debris and insulation from getting too close to the chimney." Wandling also noted that Phillips attached the single-wall vent pipe to an anchor plate on the bottom of the ceiling instead of one of the support boxes specified in the manufacturer's instructions. The purpose of the support boxes is to "provide proper insulation from combustibles." Timothy and Cory Phillips testified they did not believe either an attic insulation shield or support box was necessary because the steel ceiling was not combustible.
Wandling, however, testified that because Phillips used an anchor plate instead of a support box, the single-wall vent pipe could have reached temperatures high enough at the point where it met the ceiling to cause the cellulose insulation located above the ceiling to eventually ignite. He thus concluded that with Phillips's failure to install the chimney in the manner instructed by the manufacturer "and the location of the cellulose insulation, . . . it was just a matter of time with use of the wood stove that we would have a fire." Wandling accordingly agreed with Keefe, the fire marshal who investigated the fire, that the fire started above the ceiling. He additionally testified that he believed the ignition source of the fire to be the cellulose insulation in the building's ceiling.
There was evidence presented that contradicted Wandling's...
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