IN THE COURT OF APPEALS OF IOWA
No. 16-0031 Filed January 25, 2017
EUGENE BURNELL GARRETT JR., Plaintiff-Appellee,
vs.
TERRY COLTON, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Union County, Dustria A. Relph,
Judge.
A defendant appeals the district court’s decision ordering specific
performance of a partition fence agreement between adjoining land owners.
AFFIRMED AND REMANDED.
Jami J. Hagemeier of Williams & Hagemeier, P.L.C., Des Moines, for
appellant.
Brant D. Kahler and Michael R. Blaser of Brown, Winick, Graves, Gross,
Baskerville & Schoenebaum, P.L.C., Des Moines, for appellee.
Heard by Danilson, C.J., and Vogel and Vaitheswaran, JJ. 2
VOGEL, Judge.
Terry Colton appeals the district court’s decision ordering specific
performance of a partition fence agreement between himself and Eugene
Garrett, who are adjoining land owners. Colton contends on appeal the court
erred in prohibiting him from admitting exhibits and calling witnesses as a
sanction for failing to disclose the evidence during discovery. He further claims
the court erred in ordering an equitable remedy—specific performance—when
the case was tried as an action at law. Finally, he claims substantial evidence
does not support the court’s decision that Garrett was in substantial compliance
with the agreement.
I. Background Facts and Proceedings.
Colton and Garrett are adjoining land owners in rural Union County. The
parties entered into a partition fence agreement in December 2012 to resolve a
previous dispute regarding the fence that separates their properties. See Iowa
Code §§ 359A.12, .13 (2013). The agreement specified, among other things, the
part of the fence each was responsible for maintaining; the type of wire and the
height at which the wire was to be strung; the type, height, and spacing of the
posts to be used; and the closing of a gated entrance. It also provided:
Hedges, shrubs, trees, and other vegetation shall be cut and cleared from touching the partition fence. Each Party is responsible for such clearing on their respective sides of the partition fence. Damage to the partition fence caused by felled branches or trees shall be promptly repaired by the Party who owns the real property on which the tree emanates, regardless of which Party is otherwise responsible for that damaged portion of the partition fence under this Agreement. 3
The agreement also provided that the partition fence had to be “brought to
the standards contained” in the agreement before December 31, 2012, weather
permitting, but if the weather did not permit the necessary repairs, then the
repairs had to be completed by May 31, 2013. The agreement further stated,
“Each Party is prohibited from instituting any action against the other Party that
pertains to the fence and to the livestock owned by Garrett until the repairs to the
fence have been made in accordance with this Agreement.”
In November 2014, Garrett filed a petition alleging Colton “ha[d] failed to
comply with his repair and maintenance obligations under the Partition Fence
Agreement” and asking the court to conclude Colton breached their contractual
agreement. Garrett asked the court to order Colton to specifically perform under
the agreement or award Garrett a monetary award for the cost to bring Colton’s
sections of the fence into compliance with the agreement.1 Trial was set for
November 23, 2015. Colton represented himself at the district court, answering
discovery. In conformance with the trial scheduling order, Colton filed his witness
and exhibit lists on November 16. In response to the pretrial filings of Colton,
Garrett filed a motion to exclude four witnesses and 143 photographs that had
been requested but had not been previously disclosed through discovery. At the
start of the bench trial, the court granted Garrett’s motion to exclude the
witnesses and the exhibits.
1 Garrett also alleged Colton negligently damaged his property in April 2014 during a controlled burn. After trial, the court concluded Garrett did not prove he suffered any damages and denied Garrett any relief on that claim. That portion of the district court’s ruling is not at issue in this appeal. 4
The court heard testimony from both Garrett and Colton, along with the
testimony from Doug Campbell, who inspected the fence for Garrett on multiple
occasions, and Clint Young, a fence contractor, who estimated the cost to
replace Colton’s fence. The court issued an oral decision at the end of trial that
Garrett was in substantial compliance with the agreement based on the “very
neutral and objective” testimony from Campbell. The court ruled it was “not
going to interpret this contract to mean that if there is a little bit of brush in the
fence then this contract is null and void and you don’t have to do anything
because there is a little brush in the fence.” The court ordered specific
performance of the agreement, and the parties agreed Campbell would be
retained, at Colton’s cost, to again inspect the fence and inform each party what
needed to be done to bring the fence into compliance. Campbell was also to do
a second inspection and a report to the court in June 2016 when the repairs had
been completed. The court further provided it “reserve[d] the right to take any
further action necessary to ensure the parties have complied with all obligations
required of them under the Partition Fence Agreement.”2
Colton filed a posttrial “objection to Mr. Douglas Campbell serving as
fence viewer,” asserting Campbell was biased in favor of Garrett and that Colton
only agreed to Campbell serving in this role during trial because he felt pressured
to do so. He asked for a “neutral third party observer” to conduct the inspections.
2 We conclude the court’s oral ruling at trial on November 23, 2016, together with the written ruling entered December 7, 2015, to memorialize that oral ruling, is the final ruling for the purposes of the right to appeal because it “conclusively adjudicate[d] all the rights of the parties.” See Rowen v. LeMars Mut. Ins. Co., 357 N.W.2d 579, 581 (Iowa 1984). The court “merely reserved jurisdiction to decide issues that may arise while the adjudication is being implemented.” Id. at 582. Therefore, this appeal is not interlocutory, and we have jurisdiction to proceed. 5
In support of his objection, Colton submitted additional photographs he asserted
were taken less than two weeks after trial that he claimed showed Garrett’s fence
out of compliance with the agreement. The district court denied Colton’s
objection, noting Colton stipulated during trial to Campbell serving as a neutral
person to inspect the fence and noting it would not consider the additional
photographs submitted with the objection in light of the fact the record had been
closed. Garrett was also awarded attorney fees because the agreement
provided for attorney fees to be awarded to the prevailing party in any action to
enforce the agreement.
Colton appeals.
II. Scope and Standard of Review.
Our scope of review on appeal is governed by the manner in which the
action was tried to the district court. Mosebach v. Blythe, 282 N.W.2d 755, 758
(Iowa 1979). Both parties agree the action was tried at law in light of the court’s
rulings excluding evidence based on numerous evidentiary objections. See Sille
v. Shaffer, 297 N.W.2d 379, 381 (Iowa 1980) (noting ruling on evidentiary
objections “is normally the hallmark of a law trial, not an equitable proceeding”).
Therefore, our review is for correction of errors at law. Gaede v. Stansberry, 779
N.W.2d 746, 747 (Iowa 2010). “[T]he trial court’s findings of fact are binding on
us if supported by substantial evidence.” Id.
We review for abuse of discretion the court’s imposition of sanctions for
discovery violations. Whitley v. C.R. Pharmacy Serv., Inc., 816 N.W.2d 378, 385
(Iowa 2012). 6
III. Discovery Sanction.
For his first claim on appeal, Colton asserts the district court committed
reversible error when it excluded his photographs and the testimony of four of his
witnesses for failing to disclose this evidence during discovery. 3 He claims the
court should have considered the four factors outlined in Lawson v. Kurtzhals,
792 N.W.2d 251, 259 (Iowa 2010), before excluding the evidence, and the failure
to consider those factors amounts to an abuse of discretion.
The district court has the inherent power to regulate cases within its
jurisdiction to final disposition, and this inherent power includes the authority to
exclude evidence for failing to supplement discovery. See Lawson, 792 N.W.2d
at 258. “Noncompliance with discovery requirements is often not tolerated.” Id.
We will find an abuse of discretion if the court’s ruling “rests upon clearly
untenable or unreasonable grounds.” Id. “In determining whether the court has
abused its discretion, we must determine whether the trial court appropriately
considered the options available.” Id. at 259. The Lawson court adopted four
factors that it believed “provide[d] an appropriate framework for determining
whether the trial court abused its discretion in prohibiting” a party from presenting
3 As an initial matter, Garrett claims Colton did not preserve error on this claim because Colton did not make an offer of proof as to the excluded evidence. See Iowa R. Evid. 5.103(a) (“A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and: . . . (2) If the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.”). It is apparent from Garrett’s motion and the parties’ discussion on the record in this case that the exhibits at issue involved pictures taken of the fence at various periods of time from April 2014 until November 2015. Pictures that Colton asserts show Garrett’s noncompliance with the agreement. Presumably Colton’s witnesses would have also offered testimony regarding the condition of the fence since the agreement was entered. To the extent an offer of proof was necessary to preserve error on this claim, we conclude the court’s ruling excluding the evidenced in question can be reviewed because the substance of the evidence is apparent from the context of the case. We thus choose to address the merits of Colton’s claim on appeal. 7
evidence that had not previously been disclosed in discovery. Id. Those factors
are: “(1) the party’s reasons for not providing the challenged evidence during
discovery; (2) the importance of the evidence; (3) the time needed for the other
side to prepare to meet the evidence; and (4) the propriety of granting a
continuance.” Id. (quoting 27 C.J.S. Discovery § 102, at 169 (2009)).
When reviewing the district court’s imposition of a discovery sanction, we
can consider these four factors to determine whether the court abused its
discretion, but we will not interpret Lawson to stand for the proposition that the
trial court’s failure to articulate on the record its consideration of these four
factors amounts to an abuse of discretion. Colton faults the district court for not
considering these factors, but when asked to respond to Garrett’s motion to
exclude, Colton provided no information to the court that could have assisted the
court in applying these factors. When asked to respond to Garrett’s motion,
Colton only stated he objected to the exclusion of one exhibit, containing eight
photographs, because Colton believed Garrett’s counsel had these pictures as a
result of previous litigation between the parties; an assertion Garrett’s counsel’s
denied.
Colton provided no reason why the evidence he sought to introduce at trial
was not disclosed as part of discovery,4 he made no argument as to the
importance of the evidence to the trial, there was no discussion by either party of
the time needed for Garrett to prepare to respond to the evidence, and there was
no argument regarding the possibility or feasibility of continuing the trial. In light
4 The parties do not dispute that Garrett’s discovery requests demanded the disclosure of the evidence in question. 8
of Colton’s failure to offer reasons for the nondisclosure, to indicate the
importance of the evidence, or to make any assertion that the continuance of the
trial would not have prejudiced Garrett, we do not find the district court abused its
discretion in excluding the evidence in question. Garrett was prepared and ready
for trial on the appointed date and he should not be required to conduct further
discovery at that late point because Colton failed to timely disclose evidence.
See id. at 260 (noting the district court did not abuse its discretion in excluding
evidence that was disclosed days before trial and after one continuance where
opposing party “was ready for trial and should not be expected to do further
discovery because of the late supplementation or endure another continuance at
that late date”).
IV. Equitable Remedy.
Next, Colton asserts the court erred in granting an equitable remedy—
specific performance—when the action was heard at law. Colton contends that
because the action was at law, the court was without authority to order specific
performance of the agreement. We disagree.
“Joinder of legal and equitable causes is not forbidden by our present
rules of civil procedure, but our statutes still recognize two kinds of civil
proceedings—ordinary and equitable.” First Nat’l Bank in Sioux City v. Curran,
206 N.W.2d 317, 320 (Iowa 1973). “When an action involving law and equity
causes is commenced by ordinary proceedings, . . . either party is entitled to
have the issues exclusively cognizable in equity tried by equitable proceedings.”
Id. at 321; see also Iowa Code § 611.10 (“Where the action has been properly
commenced by ordinary proceedings, either party shall have the right, by motion, 9
to have any issue heretofore exclusively cognizable in equity tried in the manner
hereinafter prescribed in cases of equitable proceedings.”).
However, in order to have an equitable issue that has been raised in an
ordinary proceeding tried in equity, a party must raise an objection and ask to
have the issue tried in equity. See Iowa Code § 611.12 (“An error as to the kind
of proceedings adopted in the action is waived by a failure to move for its
correction at the time and in the manner prescribed in this chapter”); Knight v.
Anderson, 292 N.W.2d 411, 412 (Iowa 1980) (“Although claimants seek specific
performance of an alleged oral contract to convey property, they filed a claim in
probate. The case was tried in probate to the court as a law action . . . . Neither
party objected to that procedure. Therefore, any error as to the forum is waived.”
(citation omitted)); Fort Madison Sav. & Loan v. Marion Cty. Sav. & Loan, 310
N.W.2d 545, 546 (Iowa Ct. App. 1981) (“[D]efendant urges that the remedy of
rescission was not available in an action tried at law. We note that rescission
was specifically prayed for in one count of plaintiff’s petition and that there was
no motion by defendant under s[ection] 611.10, The Code, to transfer that count
to equity. We therefore conclude that the issue was properly before the court for
determination in the trial of this action.”).
Colton made no objection or motion asking for the specific performance
claim to be tried in equity; we therefore conclude the issue is waived.
V. Substantial Evidence.
For his final claim on appeal, Colton asserts the court erred by finding
Garrett was in substantial compliance with the fence agreement. Colton asserts
that pursuant to paragraph six of the agreement all hedges, shrubs, trees, and 10
other vegetation had to be cut and cleared from touching the fence and each
party was responsible for clearing their respective sides of the fence. Under
paragraph nine, “Each party is prohibited from instituting any action against the
other party that pertains to the fence . . . until the repairs to the fence have been
made in accordance with this agreement.” Colton asserts that reading these two
paragraphs together requires Garrett to clear all vegetation from touching the
fence before Garrett should have been able to file a lawsuit against Colton based
on Colton’s noncompliance with the agreement. Because Colton asserts he
provided the court with evidence that there was vegetation touching the fence on
Garrett’s side, he contends the court erred in not dismissing this lawsuit and in
granting Garrett’s request for specific performance.
In denying Colton’s request to dismiss the lawsuit based on Garrett’s lack
of compliance with the agreement, the court stated:
Mr. Colton argues basically that Mr. Garrett’s claim is not ripe and should be dismissed because he claims that Mr. Garrett has not complied with the provisions of paragraph 9 of the agreement. However, Mr. Colton, I am bound by the rules of evidence and the evidence that has been presented. I take and I assign credibility to the evidence, and I observe it. The Court gets to decide what is believable and what is not believable and what weight to give that evidence. The evidence presented today came from Mr. Garrett and Mr. Campbell. Both Mr. Garrett and Mr. Campbell testified that Mr. Garrett was in substantial compliance with this partition agreement. You are asking me not to believe Mr. Garrett. However, based upon what I have seen and heard today, I can’t say that I believe Mr. Garrett any more or any less than I believe you. But I do believe that Mr. Campbell is a very neutral and objective individual who has nothing to gain by any of these proceedings. His testimony was that Mr. Garrett was in substantial compliance with the fencing agreement. The extent of him not being in compliance, to me, what I heard was that there may be some brush still in the fence. Now, I 11
am not going to interpret this contract to mean that if there is a little bit of brush in the fence then this contract is null and void and you don’t have to do anything because there is a little brush in the fence. I am not going to interpret it that way. If we interpreted it that way, you two will never get this resolved. We are going to resolve it soon. You guys are both going to go your own ways and live happily ever after. I find that Mr. Garrett has substantially complied with the Partition Fence Agreement, and he is entitled to the relief requested in his petition. I am going to order specific performance of this agreement, which means I am not going to ask you to do anything more than what this agreement says, and I am going to hold Mr. Garrett to that as well. If there is anything he hasn’t done yet, he is going to do it now, and so are you.
Colton points out that Campbell testified as much as twenty-five percent of
Garrett’s fence line had vegetation. Campbell went on to testify that while he did
observe vegetation touching the fence from Garrett’s property the vegetation was
not causing the fence wires to sag down or break. Thus, the vegetation did not
cause the fence to come out of compliance with the agreement’s requirements
for the height of the fence wire. If the vegetation did not affect the structural
integrity of the fence or cause the fence to otherwise come out of compliance,
Campbell ignored it for the purposes of his report. Based on Campbell’s
inspection, it was his opinion that Garrett was in substantial compliance with the
agreement, but Colton was not.
Our supreme court has defined “substantial performance” to be the
performance of a contract “without a material breach.” Flynn Builders, L.C. v.
Lande, 814 N.W.2d 542, 546 (Iowa 2012) (quoting II E. Allan Farnsworth,
Farnsworth on Contracts § 8.16, at 518 (3d ed. 2004)).
Substantial performance is that which, “despite deviations from the contract requirements, provides the important and essential benefits of the contract to the promisee.” The doctrine is intended to protect the right of compensation of those who have performed in 12
all material and substantive particulars, and it excuses contractual deviations or deficiencies which do not severely impair the purpose underlying a contractual provision.
SDG Macerich Props., L.P. v. Stanek Inc., 648 N.W.2d 581, 586 (Iowa 2002)
(citations omitted). When the remedy is specific performance of a contract,
substantial performance by the plaintiff is allowed so long as the plaintiff’s “non-
compliance does not affect the essence of the agreement, does no violence to
the manifest intention of the parties, nor shows gross negligence.” Shaw v.
Livermore, 2 Greene 338, 342 (1849).
Viewing the evidence in the light most favorable to the court’s judgment,
as we must, we conclude substantial evidence supports the court’s determination
that Garrett substantially complied with the fence agreement. See EnviroGas,
L.P. v. Cedar Rapids/Linn Cty. Solid Waste Agency, 641 N.W.2d 776, 781 (Iowa
2002). The purpose of the contract was to maintain a partition fence between the
parties’ properties so that Garrett’s cattle would not invade Colton’s land. The
contract provided certain specifications as to the makeup of the fence and
assigned the maintenance duties between the parties. The evidence at trial
indicates that before Garrett filed the lawsuit, he asked Campbell to inspect the
fence to point out areas where the fence was not in compliance with the
agreement, both the portion of the fence assigned to Colton and the portion of
the fence assigned to Garrett. Garrett repaired the parts of his fence that
Campbell informed him were out of compliance with the agreement, and
Campbell testified he came back out to the property to ensure the repairs to
Garrett’s fence had been made. This occurred in the months before Garrett filed
suit in November 2014. In May 2015, during the pendency of the lawsuit, before 13
trial occurred in November 2015, Campbell again inspected the fence and found
Garrett’s portion of the fence to be in “good condition.”
While Campbell testified there was vegetation touching the fence from
Garrett’s property, that vegetation did not otherwise impair the integrity of the
fence or cause the wires to sag or break. Campbell testified that Garrett’s fence
would “turn cattle”—“the cattle would not go on the other person’s property”—but
Colton’s fence in places would not turn cattle. Thus, based on Campbell’s
testimony, which the district court found to be unbiased and credible, the purpose
of the agreement had been served with respect to Garrett’s portion of the fence
despite the vegetation touching the fence. We conclude substantial evidence
supports the court’s determination Garrett was in substantial compliance with the
agreement so as to justify the court ordering specific performance.
VI. Attorney Fees.
Both parties request an award of appellate attorney fees in light of the
language in the partition fence agreement that provides:
The costs and expenses, including attorney fees, associated with any action between the Parties in the future in relation to the fence, inspection, and assessment of the fence and/or enforcement of this Agreement shall be recoverable by the prevailing Party and borne by the losing Party in any such action.
Pursuant to this same provision, the district court ordered Colton to pay
$19,358.75 of Garrett’s attorney fees and expenses associated with the trial in
this case. As Garrett is also the prevailing party on appeal, he is entitled to an
award of appellate attorney fees. However, Garrett did not file an application or
affidavit with this court to provide us with the amount of fees and costs he is
requesting. Therefore, the issue of the award of appellate attorney fees is 14
remanded to the district court so that an evidentiary hearing can be held. See
Bankers Trust Co. v. Woltz, 326 N.W.2d 274, 278 (Iowa 1982).
VII. Conclusion.
We affirm the district court’s decision ordering specific performance of the
partition fence agreement. The district court did not abuse its discretion in
prohibiting Colton from offering evidence at trial that was not previously disclosed
during discovery. The court was within its authority to order specific performance
in this case, and Colton waived any claim that case should have been heard in
equity. Finally, substantial evidence supports the district court’s conclusion that
Garrett substantially complied with the partition fence agreement. This matter is
remanded to the district court to rule on Garrett’s request for appellate attorney
fees.