Sulzberger Excavating, Inc. v. Glass

• Citation: 351 N.W.2d 188
• Decision Date: 20 March 1984
• Docket Number: No. 2-69319,2-69319
• Parties: SULZBERGER EXCAVATING, INC., Plaintiff/Cross-Appellant, v. Milo E. GLASS, Jerolene E. Glass, First National Bank of Davenport, and Brenton First National Bank, Defendants-Appellants.
• Court: Court of Appeals of Iowa

Page 188

351 N.W.2d 188

SULZBERGER EXCAVATING, INC., Plaintiff/Cross-Appellant, v. Milo E. GLASS, Jerolene E. Glass, First National Bank of Davenport, and Brenton First National Bank, Defendants-Appellants.

No. 2-69319.

Court of Appeals of Iowa.

March 20, 1984.

John J. Carlin, Davenport, for defendants-appellants.

Patrick M. Ryan of Hintermeister & Ryan, Muscatine, for plaintiff/cross-appellant.

Heard by OXBERGER, C.J., and SNELL and SCHLEGEL, JJ.

SCHLEGEL, Judge.

Defendants appeal and plaintiff cross-appeals from the trial court's judgment in an equitable action to enforce and foreclose a mechanic's lien. Defendants assert that the plaintiff failed to establish the existence of an oral contract as stated in its pleadings, that the work was not substantially performed in a reasonable and workmanlike manner resulting in fitness for the intended purpose, and that the plaintiff failed to establish the reasonableness of the charges used by the trial court to calculate plaintiff's damages. The plaintiff, Sulzberger Excavating, Inc., asserts on cross-appeal that evidence did not support the claim of damages by defendants based on delay in completion of the project and that the trial court erred in calculating plaintiff's damages and certain damages suffered by defendants. We affirm on both appeals.

Plaintiff contractor filed a petition seeking enforcement of a mechanic's lien alleging that defendant Milo Glass had failed to pay the agreed price for road construction work performed under an oral contract whereby plaintiff was "to provide all necessary labor, materials, equipment, rough grading, surveying and excavating." After having previously performed work for Glass, Sulzberger was asked to look at a proposed project involving the construction of a "commercial" road, a "service" road, and the leveling of a proposed building site. Sulzberger testified that he agreed to do the work at a total cost of $5,000 to $6,000 for the "commercial" road and $65 per hour for the "service" road. Glass testified that $5,000 to $6,000 was an estimate of the total cost of all work and, based upon that understanding, refused to pay the additional $27,611.02 sought by Sulzberger after more than $5,000 had been paid. Glass filed a counterclaim alleging that the work was not performed in a timely and workmanlike manner and was unfit for the intended purpose.

Conflicting evidence was presented concerning the reasonableness of Sulzberger's charges and the manner in which he performed the work. A civil engineer testified that the work could have been performed for a substantially lower cost and that culverts and ditch blocks should have been, but were not, used in order to prevent serious erosion problems that developed in connection with construction of the "service" road. Sulzberger and his employees testified that any inefficiency resulted from the interference of Glass and his wife and their directions as to how the work was to be performed. The trial court found that plaintiff was entitled to $30,903.52 for work performed and set off against that amount $5,925 paid by defendants and $8,000 in damages to which defendants were found to be entitled, resulting in a $16,978.52 judgment for plaintiff to be secured by a mechanic's lien on the real estate.

I. Jurisdiction of the Appeal. The trial court filed a judgment on August 20, 1982, entitled "FINDINGS OF FACT AND CONCLUSIONS OF MECHANICS LIEN FORECLOSURE." The last sentence of the trial court's findings directed the plaintiff's attorney to prepare a judgment entry and a decree of foreclosure in keeping with the findings contained within its findings and to submit the judgment entry and decree of foreclosure to the court. Subsequently, both parties filed motions to enlarge the findings pursuant to Iowa Rule of Civil Procedure 179(b). Notices of appeal and cross-appeal were filed following entry of the order overruling both parties' motions to enlarge. No judgment entry as contemplated by the last sentence of the trial court's decree has been filed.

A party may not appeal of right without entry of a final judgment. In re the Marriage of Steenhoek, 305 N.W.2d 448, 450 (Iowa 1981); Recker v. Gustafson, 271 N.W.2d 738, 739 (Iowa 1978). This jurisdictional question may be raised, on our own motion, at any stage of the proceedings. Id. We find it unnecessary to decide whether the parties appealed from a final judgment, however, because we believe that under the circumstances it is appropriate for us to entertain the appeal under Iowa Rule of Appellate Procedure 1(c).

One of the policy considerations underlying Iowa Rule of Appellate Procedure 1(c) is to avoid the problem of appeals being aborted as premature or denied as too late, due to misapprehension as to their finality. Smith v. Korf, Diehl, Clayton and Cleverley, 302 N.W.2d 137, 139 (Iowa 1981). The trial court's original order clearly set out the terms of the judgment and the trial court summarily overruled both parties' motion to enlarge. Consideration of the substantive issues raised in this case is appropriate. We consider this "appeal" as an application for interlocutory appeal under Iowa Rule of Appellate Procedure 2, grant it, and proceed to resolve the issues raised.

II. General Principles. An action to enforce a mechanic's lien is in equity. Ringland-Johnson-Crowley Co. v. First Central Service Corp., 255 N.W.2d 149, 151 (Iowa 1977); Iowa Code § 572.26 (1983). Consequently, review is de novo. Iowa R.App.P. 4.

It is our responsibility to review the whole record and determine from the credible evidence rights anew on those propositions properly presented, provided issue has been raised and error, if any, preserved in the course of trial proceedings. While weight will be given to findings of the trial court, this court will not abdicate its function as triers de novo on appeal.

Ringland-Johnson-Crowley Co. v. First Central Service Corp., 255 N.W.2d at 151. The Iowa Supreme Court has also stated:

In mechanic's lien cases, involving as they do numerous charges and counter charges which depend entirely on the credibility of the parties, we have frequently held the trial court is in a more advantageous position than we to put credence where it belongs.

McDonald v. Welch, 176 N.W.2d 846, 849 (Iowa 1970) (citations omitted).

The burden of proof is upon the mechanic's lien claimant. Ringland-Johnson-Crowley Co. v. First Central Services Corp., 255 N.W.2d at 151. To be entitled to a mechanic's lien, there must be an express contract or such a state of facts as will give rise to an implied contract. Id. If there is no express agreement as to the amount of compensation to be paid; the law implies a promise to pay a reasonable compensation. Olberding Construction Co., Inc. v. Ruden, 243 N.W.2d 872, 875 (Iowa 1976).

III. Existence of Contract. The plaintiff alleged in its petition that the parties entered into a contract concerning the defendants' proposed project on December 13, 1980. The defendants, Milo and Jerolene Glass, denied that the parties entered into a contract on that date but admitted that there was a "contractual relationship" between the parties. The defendants assert on appeal that the plaintiff, by pleading only an express oral contract, could not recover on a theory of implied contract and that the plaintiffs failed to establish the existence of an express oral contract permitting recovery of the amount sought. The defendants argue that the plaintiff's recovery for services provided is limited by its "$5,000 to $6,000 estimate."

A. Pleading. Traditionally, it has been held in Iowa that one who pleads an express oral contract alone cannot ordinarily recover upon an implied contract or quantum meruit. Carlson v. Maughmer, 168 N.W.2d 802, 803 (Iowa 1969); Guldberg v. Greenfield, 259 Iowa 873, 878, 146 N.W.2d 298, 301 (1966); Maasdam v. Estate of Maasdam, 237 Iowa 877, 884, 24 N.W.2d 316, 320 (1946). Plaintiff asserts, however, that the advent of notice pleading overruled this technical rule and that the defendants were simply entitled to fair notice of the claim asserted.

Iowa Rule of Civil Procedure 69 requires, in part, that a petition contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The rule does not require that specific theories be pled in the plaintiff's petition. Christensen v. Shelby County, 287 N.W.2d 560, 563 (Iowa 1980). Only a general statement of the claim is required. Id. The court in Christensen stated the test to be applied in determining whether a specific theory may be instructed on even though it was not pled as follows: "[w]hat would appear to be essential is that any requested instruction must be so related to the pleadings as to logically follow from the statement of the claim therein, thus giving the adverse party 'fair notice of the nature of the claim' and ensuring an opportunity to litigate the same." Id. at 563.

The court in Gosha v. Woller, 288 N.W.2d 329, 331 (Iowa 1980), recognized that the rule relied upon by the defendants reflected the Iowa law before the advent of "notice pleading." In that case the plaintiff had sought recovery from the defendant for breach of oral and written warranties in the construction of a house. Id. at 330. Despite the fact testimony was elicited by the plaintiff's attorney relevant to a theory of implied warranties, no mention was made of any theory of recovery other than the breach of the express warranties. Id. at 330. The court concluded that this type of variance between the pleadings and proof was dealt with by Iowa Rule of Civil Procedure 106. Under that rule the court must "determine whether the variance was so substantial as to mislead the defendants and to prejudice them in the preparation of their response to the allegations." Id. at 330. The trial court in Gosha adopted a theory of implied warranty of habitability in the sale of a new home which had not previously been adopted in...