White v. Citizens Nat. Bank of Boone

• Decision Date: 22 February 1978
• Docket Number: No. 58839,58839
• Citation: 262 N.W.2d 812
• Parties: Elvera M. WHITE, Appellant, v. The CITIZENS NATIONAL BANK OF BOONE, Iowa, R. J. Grabau Construction, Inc., and R. J. Vickrey, Inc., Appellees.
• Court: Iowa Supreme Court

Page 812

262 N.W.2d 812

Elvera M. WHITE, Appellant, v. The CITIZENS NATIONAL BANK OF BOONE, Iowa, R. J. Grabau Construction, Inc., and R. J. Vickrey, Inc., Appellees.

No. 58839.

Supreme Court of Iowa.

Feb. 22, 1978.

McCullough Law Firm, Sac City, for appellant.

E. Eugene Davis and John K. Vernon, Des Moines, and Richard T. Jordan, Boone, for appellee, the Citizens National Bank of Boone.

Ahlers, Cooney, Dorweiler, Haynie & Smith, Des Moines, for appellee, R. J. Vickrey, Inc.

Considered by MOORE, C. J., and RAWLINGS, LeGRAND, UHLENHOPP and HARRIS, JJ.

LeGRAND, Justice.

This appeal concerns damage done to plaintiff's building during construction work on adjacent property owned by the Citizens National Bank of Boone, Iowa. Plaintiff was awarded judgment of $3,000.00 against the bank and $100.00 against R. J. Vickrey, Inc. The jury found a third defendant, R. H. Grabau Construction, Inc., was not liable and returned a verdict in its favor. Plaintiff has appealed, alleging erroneous rulings by the trial court, both as to the admission of evidence and on instructions to the jury, prevented her from establishing her actual damages. The bank has also appealed but only as to the manner in which the damages were apportioned between it and R. J. Vickrey, Inc. We affirm on plaintiff's appeal and modify and affirm on the bank's appeal.

None of the issues raised in either appeal concerns R. H. Grabau Construction, Inc. Our consideration is limited to the rights of the plaintiff, the bank, and Vickrey.

I. The bank owned property immediately east of plaintiff's land. The building on her property was only three feet from the lot line. In excavating for remodeling work, the bank's contractor, Vickrey, trespassed on plaintiff's property, removing a quantity of earth supporting the north wall of plaintiff's building. When it became apparent the wall was without adequate lateral support, Vickrey notified the president of the bank. He immediately called plaintiff, advising her of what had happened, assuring her the incident was the bank's fault, and stating any damage would be remedied without cost to her.

Plaintiff, in turn, contacted her attorney, who instructed the bank not to repair plaintiff's building and to refrain from "trespassing on plaintiff's land."

Later plaintiff started suit against the bank, against Vickrey, the company which had done the excavating, and against R. H. Grabau Construction, Inc., the contractor which had done some remedial work after the original damage.

Plaintiff's principal complaint is that the removal of lateral support by the bank's contractor caused her north wall to crack and the building to settle or, as the evidence puts it, to "move." She alleged the building was "materially weakened" and that it "will (remain in a) precarious (condition) into the indefinite future."

We are not concerned with the question of liability. That question has been settled by the jury verdict. The jury found both the bank and Vickrey guilty of trespass. Neither defendant appeals from that finding nor from the jury's conclusion plaintiff suffered damage. Plaintiff's appeal deals only with alleged errors in the admission of evidence and in the instructions on damages. Plaintiff insists she could have proven damages in excess of $25,000.00 if the trial court had ruled correctly on these matters.

II. Before discussing the specific issues, we first mention several propositions which plaintiff urges as grounds for reversal but which we decline to consider. These include alleged errors in instructions concerning liability, the refusal to permit plaintiff to testify as to her reasons for refusing to let the bank repair her property, and the trial court's refusal to allow plaintiff to introduce the city building code.

If these matters had any relevance, it was as to liability only. Since plaintiff prevailed on that issue, any error was without prejudice. Ordinarily a successful party may not appeal from errors which do not result in prejudice. Nassif v Pipkin, 178 N.W.2d 334, 337 (Iowa 1970); Shaw v. Addison, 236 Iowa 720, 733, 18 N.W.2d 796, 803 (1945); Iowa Public Service Company v. Sioux City, 254 Iowa 22, 27, 29, 116 N.W.2d 466, 469, 470 (1962). If there was error in these rulings a matter we do not pass on it was non-prejudicial and affords plaintiff no ground for reversal.

III. This leaves for consideration the following issues on plaintiff's appeal:

1. The trial court's refusal to permit certain testimony as to damages because of plaintiff's violation of Rule 125, Rules of Civil Procedure, concerning answers to interrogatories.

2. The trial court's order setting aside the jury's award of punitive damages.

3. The trial court's refusal to permit evidence concerning the before-and-after values of plaintiff's building.

IV. We take up first the matter of plaintiff's alleged violation of Rule 125, the most troublesome issue in the case. Defendants filed interrogatories directed toward ascertaining the extent of plaintiff's damage and the amount necessary to repair her building. In replying to these interrogatories, plaintiff included information she had obtained from her architect, together with his written estimate of the repair work to be done and its reasonable value. The total amount was $4,900.00. The architect's estimate contained several escape clauses, including a statement that his estimate was the best he could make "at this time" and another that "further inspection of the property will be necessary at some future date."

The answers to the interrogatories concerning damage were never supplemented. On the first day of trial it became apparent plaintiff intended to have her architect testify to damages exceeding $25,000.00 rather than the $4,900.00 estimated in the answers to interrogatories. Defendants immediately objected on the ground that plaintiff had violated Rule 125, that the proposed evidence took them completely by surprise, and that they had no opportunity to prepare to meet the testimony of damages in that amount. They asked that the evidence of the architect be limited to testimony concerning damages as shown by the answers to interrogatories $4,900.00.

A prolonged hearing was held on this question outside the presence of the jury. Plaintiff protested her good faith. She insisted there was no intent to withhold information from defendants and that she had at all times intended that they know the full extent of her damages. She also argued that, because she had amended her petition to increase the amount of her prayer, it must have been apparent to defendants she was claiming damages in an amount greater than the architect had first estimated. Hence they could not have been surprised.

Rule 125 provides as follows:

"A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:

"(a) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to (1) The identity and location of persons having knowledge of discoverable matters, and (2) The identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.

(b) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which (1) He knows that the response was incorrect when made, or (2) He knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.

(c) * * *."

This rule was adopted in 1973. We have had no occasion until now to consider the sanctions to be imposed for its violation. However, Federal Rule 26(e) is identical with our Rule 125. A number of decisions under that rule are helpful here.

The purpose of the rule is to avoid surprise and to permit the issues to become both defined and refined before trial. This allows litigants to prepare for the actual matters they will ultimately confront. Faced with a claim for $25,000.00, defendants quite reasonably might have engaged in more investigation, might have themselves hired experts, and might have been prepared to meet plaintiff's evidence with additional rebutting testimony of their own. They were effectively denied this opportunity by plaintiff's failure to supplement her answers.

The trial court ruled plaintiff had ignored Rule 125 and sustained the motion to limit evidence of damage to the estimate plaintiff had used in answering the interrogatories. In reviewing this matter, we reverse only for an abuse of discretion. Haumersen v. Ford Motor Co., 257 N.W.2d 7, 13-14 (Iowa 1977); Sandhorst v. Mauk's Transfer, Inc., 252 N.W.2d 393, 399 (Iowa 1977).

Plaintiff argues Rule 125 confers no power to impose sanctions. We disagree. Our rule was taken without change from Federal Rule of Civil Procedure 26(e), which has generally been construed to recognize such power. See Davis v. Marathon Oil Co., 528 F.2d 395, 403 (6th Cir. 1975); Weiss v. Chrysler Motors Corp., 515 F.2d 449, 457 (2d Cir. 1975); Havenfield Corp. v. H & R Block, Inc., 509 F.2d 1263, 1272 (8th Cir. 1975), cert. denied 421 U.S. 999, 95 S.Ct. 2395, 44 L.Ed.2d 665 (1975); Burns v. Thiokol Chemical Corp., 483 F.2d 300, 304 (5th Cir. 1973); Tabatchnick v. G. D. Searle & Co., 67 F.R.D. 49, 20 F.R.Serv.2d 980 (D.N.J.1975). See also comment in A. Vestal and P. Willson, Iowa Practice § 24.06 (1974).

We hold trial courts have inherent power to enforce our discovery rules and have discretion to impose sanctions for a litigant's failure to obey them.

The question we must decide is whether the trial court abused its discretion by excluding the evidence which should have been disclosed to defendants before trial. Plaintiff argues the penalty was severe and indeed it was. Other...