Professional Documents
Culture Documents
Bill Watson
Assistant Court Administrator
Kellie Orres
Case Coordinator
(515) 574-3752
Date: 03/08/2016
Case Title: JAMIE SCHONEBOOM DBA JDS CONST VS FARM CREDIT
Case No: 02811 LACV019668
Petition Filed:
RE: Notice Regarding Service
Court records indicate that return of service has not been filed in the above entitled matter.
If service, and a corresponding return of service, have not been filed within 30 days of this notice,
this matter will be referred to the court for dismissal.
)
)
)
CASE NO. LACV019668
)
vs.
)
)
APPEARANCE OF COUNSEL
FARM CREDIT LEASING
)
SERVICES CORPORATION,
)
Defendant.
)
_______________________________________________________________________
COMES NOW Thomas W. Lipps, and hereby enters his appearance on behalf of
the Defendant, Farm Credit Leasing Services Corporation, in the above captioned matter.
_____________________________
THOMAS W. LIPPS
6 East State Street
P.O. Box 575
Algona, IA 50511
Telephone: (515) 295-9494
Facsimile: (515) 295-9493
Email: tlipps@petelipp.com
ATTORNEY FOR DEFENDANT
)
)
)
CASE NO. LACV019668
)
vs.
)
)
DEFENDANTS ANSWER TO
FARM CREDIT LEASING
)
PLAINTIFFS PETITION
SERVICES CORPORATION,
)
Defendant.
)
_______________________________________________________________________
COMES NOW Defendant, and for its answer to Plaintiffs Petition, states as
follows:
1.
Defendant denies the balance of Paragraph 1. Defendant does not lease the hay storage
facility to Gary Langbein or Langbein Farms, Inc. and Defendant disclaims any interest
in the Langbein hay storage facility. Seee Exhbit A attached hereto.
2.
constructing the hay storage facility but denies they have a fair value of $46,385.53.
4.
customary. Defendant denies the balance of Paragraph 4 and affirmatively states that
Gary Langbein d/b/a Langbein Farms, Inc. tendered payment in the amount of
$23,000.00 to plaintiff's lawyer on or about June 26, 2015 and that the amount tendered is
equal to or greater that any amount owed to plaintiff for material and services furnished
on the Langbein structure.
5.
Admit.
6.
_____________________________
THOMAS W. LIPPS
6 East State Street
P.O. Box 575
Algona, IA 50511
Telephone: (515) 295-9494
Facsimile: (515) 295-9493
Email: tlipps@petelipp.com
ATTORNEY FOR DEFENDANT
vs.
FARM CREDIT LEASING SERVICES
CORPORATION,
Defendant / Respondent.
A scheduling conference will be held on 04/06/16 at 10:30 AM with Kellie Orres, as District Court
Designee, pursuant to I.R.C.P 1.602.
This conference shall be conducted by telephone conference call initiated by plaintiff's counsel.
Kellie Orres may be contacted via telephone at: (515) 574-3752.
1. PARTICIPATION: All attorneys appearing in the case shall participate in this conference. A party
who is not represented by counsel shall contact the Court Administrator's office (at the above phone
number) prior to the date and time of the conference call.
2. TRIAL SCHEDULING: A firm trial date shall be established in accordance with the Supreme
Court's time standards as provided by Chapter 23, Iowa Court Rules. NO CONTINUANCES SHALL
BE GRANTED EXCEPT BY COURT ORDER, UPON GOOD CAUSE SHOWN.
3. SANCTIONS: If a party or attorney fails to participate in the scheduling conference or is
substantially unprepared to participate in the conference, the Court may impose appropriate
sanctions, including reasonable expenses and attorney fees. (I.R.C.P 1.602(5)).
If this matter was filed on or after January 1, 2015, and is not exempt as per Iowa Court Rule 1.500(1)(e), then
prior to the trial-setting conference, the parties must file a Trial Scheduling and Discovery Plan, Iowa Court Rule
23.5-Form 2.
NO. LACV019668
ORDER GRANTING
MOTION FOR LEAVE TO FILE
AMENDED AND SUBSTITUTED
PETITION AT LAW
The plaintiffs motion for leave to file amended and substituted petition is
granted.
OTHER ORDER
Case Number
LACV019668
Case Title
JAMIE SCHONEBOOM DBA JDS CONST VS FARM CREDIT
So Ordered
page 2 of 2
JDS CONSTRUCTION
JAMIE DEAN SCHONEBOOM
Plaintiff
vs.
GARY A LANGBEIN
LANGBEIN FARMS INC
Defendant
IT IS SO ORDERED:
TRIAL: Trial of this case is set for 10/25/16 at 09:00 AM in the District Court in the courthouse of
the above-named county.
A pre-trial conference shall be held upon request of the parties or by order of the Court.
DISCOVERY PLAN:
Trial Scheduling and Discovery Plan has been filed in this matter in compliance with IRCP1.507(2).
The Trial Scheduling and Discovery Plan has been completed. No additional hearings are required.
The Trial Scheduling and Discovery plan is incorporated into this order.
Settlement conference shall be held upon request.
Dated : 05/04/16
/s/ Kellie Orres
NO. LACV019668
ANSWER TO
AMENDED AND SUBSTITUTED
PETITION AT LAW AND
AFFIRMATIVE DEFENSES
COMES NOW Defendants, and for answer to Plaintiffs Petition, state as follows:
1.
property owned by Gary Langbein. Defendants deny that Langbein Farms, Inc is a
proper party.
2.
constructing the hay storage facility, but deny they have a fair value of $46,385.53.
3.
customary. Defendants deny the balance of Paragraph 3, and affirmatively state that
Gary Langbein has tendered payment in the amount of $23,000.00 to plaintiff's lawyer on
or about June 26, 2015, and that the amount tendered is equal to or greater than any
amount owed to plaintiff for material and services furnished on the Langbein structure.
4.
Admit that invoices so state, but such claims are subject to plaintiffs
7.
8.
9.
10.
_____________________________
THOMAS W. LIPPS
6 East State Street
P.O. Box 575
Algona, IA 50511
Telephone: (515) 295-9494
Facsimile: (515) 295-9493
Email: tlipps@petelipp.com
ATTORNEY FOR DEFENDANTS
By:
THOMAS W. LIPPS
6 East State Street
P.O. Box 575
Algona, IA 50511
Telephone: (515) 295-9494
Fax: (515) 295-9493
Email: tlipps@petelipp.com
ATTORNEY FOR DEFENDANT
TO:
Jamie Schoneboom
c/o Warren L. Busch
PO Box 159
Wall Lake, IA 51466-0159
stenographically recorded by Court Reporter Robin Qualy and may be video and/or audio
taped.
WITNESS
ATTORNEY(S)
Jamie Schoneboom
Thomas W. Lipps
DATE
June 20, 2016
TIME
11:00 a.m.
YOU ARE FURTHER NOTIFIED that on the date, time and place designated
above, each deponent is requested to provide a complete copy of Jamie Schoneboom dba
JDS Constructions (1) construction file regarding the Langbein project (2) including, but
not limited to, what Plaintiff paid for materials (3) as well as the time and payroll records
for those employees who worked on the project.
YOU ARE FURTHER NOTIFIED that this deposition may be adjourned from
time to time until complete. You are invited to attend and cross-examine this witness(es).
By:
THOMAS W. LIPPS
6 East State Street
P.O. Box 575
Algona, IA 50511
Telephone: (515) 295-9494
Fax: (515) 295-9493
Email: tlipps@petelipp.com
ATTORNEY FOR DEFENDANT
CERTIFICATE OF SERVICE
Original to:
Warren L. Busch
PO Box 159
Wall Lake, IA 51466-0159
Phone: 712-664-2892
Fax: 712-664-2894
buschlaw@netins.net
DEFENDANTS DESIGNATION OF
EXPERT WITNESSES
Defendants.
COMES NOW Defendant, pursuant to Rule 1.508 of the Iowa Rules of Civil
Procedure, hereby states his intent to call one or more of the following experts at time of
trial, or by deposition prior to trial:
Expert Name & Address
2. Sam Brockshus
Designer, ISG
725 North Lake Street
Storm Lake, Iowa 50588-7610
4. Gary Langbein
Defendant reserves the right to utilize any expert called by or designated by any
other party and to designate and utilize additional and/or different experts in rebuttal.
By:
THOMAS W. LIPPS
6 East State Street
P.O. Box 575
Algona, IA 50511
Telephone: (515) 295-9494
Fax: (515) 295-9493
Email: tlipps@petelipp.com
ATTORNEY FOR DEFENDANT
TO:
Warren L. Busch
PO Box 159
Wall Lake, IA 51466-0159
ATTORNEY(S)
DATE
TIME
Sam Brockshus
Thomas W. Lipps
Jason Hoehn
Thomas W. Lipps
9:00 a.m.
YOU ARE FURTHER NOTIFIED that this deposition may be adjourned from
time to time until complete. You are invited to attend and cross-examine this witness(es).
By:
THOMAS W. LIPPS
6 East State Street
P.O. Box 575
Algona, IA 50511
Telephone: (515) 295-9494
Fax: (515) 295-9493
Email: tlipps@petelipp.com
ATTORNEY FOR DEFENDANT
CERTIFICATE OF SERVICE
Original to:
Warren L. Busch
PO Box 159
Wall Lake, IA 51466-0159
Phone: 712-664-2892
Fax: 712-664-2894
buschlaw@netins.net
Defendants.
TO:
Warren L. Busch
PO Box 159
Wall Lake, IA 51466-0159
ATTORNEY(S)
DATE
TIME
Sam Brockshus
Thomas W. Lipps
Jason Hoehn
Thomas W. Lipps
9:00 a.m.
YOU ARE FURTHER NOTIFIED that this deposition may be adjourned from
time to time until complete. You are invited to attend and cross-examine this witness(es).
By:
THOMAS W. LIPPS
6 East State Street
P.O. Box 575
Algona, IA 50511
Telephone: (515) 295-9494
Fax: (515) 295-9493
Email: tlipps@petelipp.com
ATTORNEY FOR DEFENDANT
CERTIFICATE OF SERVICE
Original to:
Warren L. Busch
PO Box 159
Wall Lake, IA 51466-0159
Phone: 712-664-2892
Fax: 712-664-2894
buschlaw@netins.net
Bates
Bates
Begin *
End
Description
A No
Object.
Found.
Other
Exhibit
Authen
Object.
Admitted
tication
(Indent
Only
ify)
Waived
101
102
103
101
102
103
L00004
L00006
104
104
L00007
L00014
105
105
L00033
L00037
106
106
107
108
109
110
111
107
108
109
110
111
L00088
L00079
L00084
L00086
L00081
L00088
L00080
L00085
L00087
L00083
112
113
114
112
113
114
L00269
L00269
Offered
Received
Exhibit Depo
No.
Ex.
No.
Bates
Bates
Begin *
End
Description
A No
Object.
Found.
Other
Exhibit
Authen
Object.
Admitted
tication
(Indent
Only
ify)
Waived
115
115
L00270
L00271
116
116
L00316
L00316
117
117
L00283
L00315
118
118
L00267
L00268
119
119
L00259
L00266
120
120
L00246
L00258
121
121
L00243
L00245
122
122
L00280
L00282
123
124
125
126
127
128
129
130
131
123
124
125
126
127
128
129
130
131
L00236
L00319
L00236
L00319
132
133
134
135
136
137
138
139
140
141
142
143
Offered
Received
Exhibit Depo
No.
Ex.
No.
Bates
Bates
Begin *
End
Description
A No
Object.
Found.
Other
Exhibit
Authen
Object.
Admitted
tication
(Indent
Only
ify)
Offered
Received
Waived
144
145
146
147
148
149
150
By:
THOMAS W. LIPPS
6 E. State St., P.O. Box 575
Algona, Iowa 50511
Telephone: (515) 295-9494
Facsimile: (515) 295-9493
E-Mail: tlipps@petelipp.com
ATTORNEYS FOR THE DEFENDANT
COMES NOW, Defendant, and file his anticipated witness list as follows:
1.
2.
Full Name
Gary Langbein
Melissa Langbein
Gary Jackson
Sam Brockshus
Jason Hoehn
Role In Case
Defendant
Defendants wife
Expert
Expert by deposition
Expert by deposition
support for any of Defendants exhibits that Plaintiff poses objection to.
3.
By:
THOMAS W. LIPPS
6 East State Street
P.O. Box 575
Algona, IA 50511
Telephone: (515) 295-9494
Fax: (515) 295-9493
Email: tlipps@petelipp.com
ATTORNEY FOR DEFENDANT
Defendants.
Bates
Bates
Begin *
End
Description
A No
Object.
Found.
Other
Exhibit
Authen
Object.
Admitted
tication
(Indent
Only
ify)
Waived
101
102
103
101
102
103
L00004
L00006
104
104
L00007
L00014
105
105
L00033
L00037
106
106
107
108
109
110
111
107
108
109
110
111
L00088
L00079
L00084
L00086
L00081
L00088
L00080
L00085
L00087
L00083
112
113
114
112
113
114
L00269
L00269
Offered
Received
Exhibit Depo
No.
Ex.
No.
Bates
Bates
Begin *
End
Description
A No
Object.
Found.
Other
Exhibit
Authen
Object.
Admitted
tication
(Indent
Only
ify)
Waived
115
115
L00270
L00271
116
116
L00316
L00316
117
117
L00283
L00315
118
118
L00267
L00268
119
119
L00259
L00266
120
120
L00246
L00258
121
121
L00243
L00245
122
122
L00280
L00282
123
124
125
126
127
128
129
130
131
123
124
125
126
127
128
129
130
131
L00236
L00319
L00236
L00319
132
133
134
135
136
137
138
139
140
141
142
143
Offered
Received
Exhibit Depo
No.
Ex.
No.
Bates
Bates
Begin *
End
Description
A No
Object.
Found.
Other
Exhibit
Authen
Object.
Admitted
tication
(Indent
Only
ify)
Waived
144
145
146
147
148
149
150
151
152
153
154
155
150
150 - Sketch
152
156
157
158
159
160
161
L00060
L00060
162
L00050
L00050
163
L00059
L00059
164
L00063
L00063
165
L00068
L00068
166
L00077
L00077
167
L00064
L00064
168
L00065
L00065
MVI_2183 Video
Skidloader - Entry
MVI_2181Video Doors Off
Track
MVI_2176 video - Doors
Sac County Fairgrounds
building Photo
10/12/16 Sam Brockshus
Deposition. - dont have yet
160 Schoneboom-Jamie Depcondensed
03-02-16 Photo 0030 Moisture Penetration
03-02-16 Photo 0008 - Screw
Missing Board
03-02-16 Photo 0028 Moisture Penetration
03-02-16 Photo 0097 Screws Missing Board
03-02-16 Photo 1211 - Door
Entrance - Slab
03-02-16 Photo 1263 - Inside
View
03-02-16 Photo 0098 Screws Missing board Moisture - Ice
03-02-16 Photo 0100 - Fives
Screws Missing Board
Offered
Received
Exhibit Depo
No.
Ex.
No.
Bates
Bates
Begin *
End
Description
A No
Object.
Found.
Other
Exhibit
Authen
Object.
Admitted
tication
(Indent
Only
ify)
Waived
169
L00067
L00067
170
L00090
L00090
171
L00092
L00092
172
L00093
L00093
173
L00107
L00107
174
L00111
L00111
175
L00128
L00128
176
L00161
L00161
177
178
L00162
L00163
L00162
L00163
179
180
L00164
L00174
L00164
L00174
181
L00175
L00175
182
L00177
L00177
183
L00180
L00180
184
L00183
L00183
185
L00185
L00185
186
L00189
L00189
187
L00187
L00187
Offered
Received
Exhibit Depo
No.
Ex.
No.
Bates
Bates
Begin *
End
Description
A No
Object.
Found.
Other
Exhibit
Authen
Object.
Admitted
tication
(Indent
Only
ify)
Offered
Received
Waived
188
L00191
L00191
189
L00193
L00193
190
191
192
193
194
195
196
197
198
199
200
By:
THOMAS W. LIPPS
6 E. State St., P.O. Box 575
Algona, Iowa 50511
Telephone: (515) 295-9494
Facsimile: (515) 295-9493
E-Mail: tlipps@petelipp.com
ATTORNEYS FOR THE DEFENDANT
2RCV12
IN THE IOWA DISTRICT COURT FOR SAC COUNTY
JAMIE D SCHONEBOOM
JDS CONSTRUCTION
Case No. 02811 LACV019668
Plaintiff,
vs.
GARY A LANGBEIN
LANGBEIN FARMS INC
COURT REPORTER
MEMORANDUM AND CERTIFICATE
Defendant.
COURT REPORTER MEMORANDUM
(The court reporter shall file this memorandum with the district court clerk.)
Appearances:
For Plaintiff/Petitioner: Warren Bush
For Defendant/Respondent: Thomas Lipps
Other:
Information required by Iowa Rule of Civil Procedure 1.903(3):
I, Nancy A. Timmons, am providing the following information as required by Iowa Rule of Civil
Procedure 1.903(3):
1. The type of proceeding that was reported: trial to the court
2. The date(s) on which the proceeding occurred: October 25, 2016
3. The name of the court reporter who reported the proceeding: Nancy A. Timmons
4. The name of the judge who presided over the proceeding: William C. Ostlund
5. The reporting fee for the proceeding: $40.00
6. We, the undersigned judge before whom the above-entitled case was tried, and the official court
reporter who, by order of the Court, reported the same, do hereby certify that the above and foregoing
is the report of the whole proceedings upon the trial and/or hearing of the above-entitled cause made
and taken pursuant to the order and direction of the Court, in accordance with Iowa Code Section
624.10.
/s/William C. Ostlund
_________________________________________
District Court Judge
1 of 2
Case Title
JAMIE SCHONEBOOM DBA JDS CONST VS LANGBEIN ET
AL
COURT REPORTER MEMORANDUM AND CERTIFICATE
So Ordered
2 of 2
JDS CONSTRUCTION
JAMIE DEAN SCHONEBOOM
,
Plaintiff,
vs.
GARY A LANGBEIN
LANGBEIN FARMS INC
,
Defendant.
The following exhibits were offered and admitted by the Court at the hearing as shown above:
Plaintiff's Exhibits
1. JDS Construction photos
2. JDS Construction photos
3. Quote
4. Transcript of message left on phone
6. Invoices from Wall Lake & Lake View Lumber
7. Invoices from GCC Concrete
8. Invoices from JDS to Langbein
9. Tickets from GCC Ready Mix
10. Invoices from American Concrete
11. Farm Credit Leasing request
12. Notice re stop payment
13. Copy of UCC financing statement
14. Fax communications
15. Miscellaneous notes
16. Brockshus & Jason Hoen report
17. Letter from Certified Testing Services
18. Installation instructions for door rails
1 of 3
Defendant's Exhibits
101. Quote
102. CTS report
103. INS report
104. Inspection final report
105. letter and demand
106. Lipps response to JDS
111. Bush letter and Langbein check
114. Farm Credit check request
115. Bank Midwest return notice
116. transcript of message left by Langbein
117. Copy of Schoenebooms file
118. American Concrete invoices
119. Wall Lake and Lake View Lumber invoices
120. JDS Construction invoices
121. Alliance Concrete invoices
122. Quail Construction inspection report
130. Photo
131. Schoneboom photo
154. thumb drive (not electronically filed)
2 of 3
Case Title
JAMIE SCHONEBOOM DBA JDS CONST VS LANGBEIN ET
AL
EXHIBIT LIST
So Ordered
3 of 3
JDS CONSTRUCTION,
Plaintiff,
Vs.
No. LACV019668
Findings of Fact,
Defendant.
This contested matter came before the Court on October 25, 2016. The Plaintiff
was present represented by his attorney, Warren Bush. The Defendant was present
represented by his attorney, Thomas Lipps. The Court has considered the testimony,
the exhibits offered and the arguments of counsel submitted through proposed findings
of fact. Having considered the same, the Court enters the following findings of fact,
conclusions of law and ruling.
Findings of Fact
The Court in part will borrow from the briefs submitted by both parties in
reaching its conclusion.
This lawsuit was filed by the Plaintiff, Jamie Schoneboom, d/b/a JDS
Construction, (Jamie) to collect for a hay shed that he constructed at the request of
defendant Gary Langbein (Langbein). Initially Langbein requested a proposal for a
pole building to be mounted on the ground with a dirt floor. Later he requested a
proposal for a building to be mounted on concrete stub walls with a concrete floor.
Jamie understood that he would be building the structure for Farm Credit Leasing who
was to pay him for that building and would then lease it to the Defendant.
1
The written proposal which Jamie submitted on April 28, 2014, Jamies Exhibit
3, specifically references the following specifications:
Construction of a 48 x 64 x 15 Hay storage shed complete with
concrete foundation. Owner will be responsible for preparing initial
grade as well as final grade. Slab will have a light broom finish.
That proposal goes on to recite that:
It has been discussed and understood that the Owner is seeking
to have a storage shed built with the purpose of storing hay. This bid
is job complete, meaning Contractor will supply material and labor and
will leave the job site in broom clean condition. An exact start time for
work has yet to be determined. It is understood that work will begin at
the earliest convenience of the Contractor, contingent upon acceptance
of the following bid. It is also understood that work will begin when,
and only when, Contractor has received a signed copy of the agreement.
All work will be performed in a timely and professional manner.
(Emphasis Supplied).
The proposal then goes on to list the building specifications. For purposes of the
issues in this litigation the following are significant:
Doors: (1) 36 x 80 Insulated Entry Door, (2) 24 x 15 Split Slider
Doors on gable ends.
Foundation 8 x 24 Stub wall foundation with frost footings and 6
Floor. (Emphasis Supplied).
The proposal further states that If foundation is not approved by Owner, Owner
may deduct $9,500 from the stated bid price. That language was included because
Farm Credit Leasing had not yet approved including the stub wall foundation with frost
footings and concrete floor, and if they did not, then the building would be mounted on
dirt with a dirt floor for a total price of $35,100 rather than $44,600.
In summary, the proposal was that Jamie would furnish the materials and labor
for the project for the sum of $44,600 if Farm Credit approved inclusion of the stub
walls and concrete floor unless an alteration or deviation from the specifications
occurred, in which case extra charges would be made. If the stub wall foundation and
concrete floor were not included then the price would be $35,100, excluding extras.
Neither Farm Credit Leasing nor Langbein ever signed a written acceptance of
the proposal so there is no written contract. Thus there is either an oral contract or,
alternatively, the plaintiff relies on quantum meruit to recover the fair value of the
goods and services provided.
In comparison to Jamies proposal, Langbein testified that the bid he received
from Morton Buildings was substantially higher ,and Plaintiffs expert, Joe Quail, who
has built many of these types of buildings, testified that had he submitted a bid for a
building with these specifications it would have been in the $60,000 range. Langbeins
expert, Sam Brockshus, a recent college graduate who has never poured concrete,
never built a building, did not price any materials, did not check with any companies
that build similar buildings, but rather went to a square foot reference in some book to
value the building, valued it at $30,000.
did not go into any reasonable level of detail to set forth an opinion as to the value of the
building. (Brockshus dep 37-41, 61-62).
While there was never any written contract, both parties acknowledge that an
oral contract was entered into per the terms previously mentioned. This was to include
a cement floor for the purposes of constructing a hay storage building. It was incumbent
upon the Defendant to grade the property in preparation for the laying of the
foundation. This foundation was significant in that it was agreed upon that stub walls
should be included to support the structure.
The original written agreement provided that 6 subfloors be provided in the
building. In addition, sliding doors were to be installed to allow access to the structure.
3
Deviation from the original plans moved one of the doors from the gabled entrance to
the east side to provide easier access.
disagreement began to ferment. Specifically, the Defendant argued that the subfloor
were only 4 deep instead of the 6. In compliance with this complaint, the Plaintiff
poured an additional two inches.
reinforcements and the Plaintiff argues that it was unnecessary based upon the expected
use of the building.
In early August, 2014, after the floor was poured, Defendant Langbein
complained to Schoneboom about the workmanship of the floor and its uneven surfaces.
Both parties agree that a combative discussion between Langbein and Schoneboom
occurred late in the work day on the north side of the hay shed near Mr. Schonebooms
pickup. Langbein testified that he asked Schoneboom to fix the concrete work; and
when Schoneboom refused, he asked Schoneboom to guarantee the concrete work,
which he also refused. It would appear at this time that significant loggerheads had
been reached. Langbein went on to testify that based upon this interchange, he thought
the Plaintiff was finished with his work. The rafters were dropped off the next day by
Wall Lake Lumber and Langbein went on vacation. When he arrived back, he testified
he was surprised to see the building up with the roof and walls constructed. During the
ensuing weeks and months, examination and testing of the cement and the structure
were taken. The Court will reference the experts opinions shortly.
In June of 2015, based upon his belief that the Plaintiff had not substantially
complied with the contract, submitted an unconditional $23,000 tender for services
rendered.
This offer was based upon 25% reduction of the $30,000 valuation
submission, the Plaintiff had submitted a bill for $9,700 for concrete work including
labor. This check was delivered, but payment was stopped.
Numerous exhibits, including photos, were presented to the Court to either
support the Plaintiffs position, but in large part to point out what the Defendant
believed to be significant deficiencies in the construction.
construction work, including significant honeycombing, flashing that had torn loose,
uneven walls, and sliding doors that did not work because of the elevation. The doors
were discussed at some length, stating that their installation thwarted the useful
entrance and usefulness of the building. Further testimony was directed to moisture
that had accumulated within the building because of leakage from a number of spots.
The Courts attention was directed to Exhibits 157, 161, 165-167, 170-176, 180, 184, 185,
188.
The Defendant offered the following witnesses: (1) Gary Jackson. Mr. Jackson
was an engineer with eight years experience in concrete work. He had engaged in past
concrete testing and he was a certified concrete expert. He was asked to look at the
concrete. He determined that the concrete was approximately 5 to 5 which was
less than the intended depth. His observations were that the concrete was horrible to
look at; in fact, the worst he had ever seen. He found significant honeycombing and the
finish on the concrete was so bad that it did not even meet broom finish standards. It
was his belief that this rough surface would have a tendency to erode and it would not be
unreasonable to re-pour this entire project. It was his belief that this honeycombing
effect would affect the strength and integrity of this floor by as much as 25%. (2) Sam
Brockshus. Mr. Brockshus works for a full-service architecture and engineering firm in
Mankato, Minnesota, as well as Algona, Storm Lake and Des Moines. He has worked as
an engineer for 2 years and expects to become a full-fledged engineer with
professional license. He prepared an evaluation report and took photos. His report
included numerous deficiencies in the structure itself and the workmanship, all affecting
the structural elements of the building. In addition, he addressed the issue of the doors
and their improper application.
Joseph Quail. Mr. Quail testified that he was engaged in a family business that routinely
engaged in building projects.
company. His relationship with the Plaintiff caused him to state that in the past he
considered his work product of good quality. While he made what might be considered
a cursory inspection of the property, he stated there were no significant deficiencies that
could not be corrected.
In summary, the Defendant contends that the Plaintiff failed to substantially
comply with the work agreement in the following regards: (a) faulty foundation and
concrete; (b) improper installation of sliding doors; (c) aesthetic deficiencies, including
exposed nails, missing screws, loose flashing and (d) moisture issues.
It is for this reason that the Defendant has refused payment in excess of
the $23,000 tender previously made.
Conclusions of Law and Ruling
There are a number of matters that the parties seem to be in agreement. Both the
Plaintiff and the Defendant agree that an oral contract was entered into for the
construction of the hay building in the total purchase price of $44,892.50. Further, the
parties have both cited existing law of substantial compliance in the construction of
buildings. Specifically, in order for Langbein to be entitled to a deduction from the
amount of the Plaintiffs bill, it is incumbent upon him to provide credible evidence from
which the Court can find the value of any setoff should be made. When a contractor
substantially complies with a contract, [he] is entitled to recover the contract price with
deductions for any defects or incompletions. S. Hansen Lumber Co. v. DeMoss, 253
Iowa 204, 208, 111 N.W.2d 681, 684 (1961).
The contractor has the burden of proof to show substantial performance
with the contract. Farrington v. Freeman, 251 Iowa 18, 23, 99 N.W.2d
388, 391 (1959). Substantial performance allows only omissions or
deviations from the contract that are inadvertent or unintentional,
not the result of bad faith, do not impair the structure as a whole
are remediable without doing material damages to the other
portions of the building, and may be compensated for through
deductions in the contract price. Moores Builder, 409 N.W.2d
At 193. Once a contractor has met its burden to show substantial
performance, the [building] owner has the burden to show any
defects or incompletions which may be deducted from the contract
price. Id.
In analyzing the circumstances of this construction project, the Court has reached
the following conclusions. There is a difference of opinion as to the impairment of the
project based upon the integrity of the concrete. The Court finds that while it may not
be aesthetically pleasing, the Court is unconvinced that significant imperfections exist to
affect the overall use of the building. Further, issues that relate to the sliding door
appear to be correctable. This is due in part to the graded foundation which was
provided to the Plaintiff by the Defendant. It was an elevated area which might require
a ramp or some other addition to make access easier. The cosmetic issues all appear to
be correctable and the moisture issue may well be unavoidable.
In short, the Court finds that the Plaintiff has met the standard of
substantial compliance and is entitled to compensation, subject to any deductions.
In this instance, the Court agrees that there are certain things that are in
fact deficient. The Court is quick to point out that the Plaintiff offered to correct these
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problems but was denied access by the Defendant. This position of the Defendant was
reaffirmed at the time of trial.
The evidence establishes that a high bid of approximately $60,000 was
entered at one time and a low bid of $30,000 was suggested by the Defendant. All
parties agree that the purchase price was approximately $44,000 plus. The Court
determines this to be the value of the building and the contract. In reaching its final
conclusion, the Court determines that the issues of quantum meruit and mitigation of
damage should be considered. The Defendant had previously used the percentage of
deduction to be 25% as applied to the $30,000 figure. Using the Defendants own
formula, the Court finds this is appropriately applied to the $44,892.50 figure, resulting
in a deduction of $11,223.12. At this point, the Defendant would be obligated to pay the
amount of $33,669.38. Recognizing these deficiencies, the Court is also aware that a
significant structure was provided to the Defendant.
available, and the Plaintiff was denied the opportunity to correct them. The Plaintiff did
expend significant and compensation labor.
OTHER ORDER
Case Number
LACV019668
Case Title
JAMIE SCHONEBOOM DBA JDS CONST VS LANGBEIN ET AL
So Ordered
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