IN THE COURT OF APPEALS OF IOWA
No. 20-1432 Filed January 12, 2022
PAUL YAKEL and THERESE YAKEL, Plaintiffs-Appellants,
vs.
RANDALL W. WHEELER, individually, Defendant-Appellee,
and
LIGHTWINE CONSTRUCTION, INC., and CARSON STONE & SUPPLY, LLC, Defendants. ________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, James S.
Heckerman, Judge.
Paul and Therese Yakel appeal the district court’s grant of a defendant’s
motion for summary judgment. APPEAL DISMISSED.
Sean A. Minahan of Lamson Dugan & Murray, LLP, Omaha, for appellants.
Brody D. Swanson of Peters Law Firm, P.C., Council Bluffs, for appellee.
Jack Ruesch of Telpner Peterson Law Firm, Council Bluffs, for defendant
Lightwine Construction, Inc.
Gregory G. Barntsen of Smith Peterson Law Firm, LLP, Council Bluffs, for
defendant Carson Stone & Supply, LLC.
Considered by Bower, C.J., and Vaitheswaran and Schumacher, JJ. 2
VAITHESWARAN, Judge.
Paul and Therese Yakel filed an amended petition against Lightwine
Construction, Inc. (Lightwine), Carson Stone & Supply, LLC (Carson Stone), and
Randall W. Wheeler alleging (1) they “obtained bids from several contractors to
tear off and install new siding on their home”; (2) they “obtained a proposal from
Defendant Lightwine for the labor to remove the original siding and installation of
new siding on [their] home”; (3) Wheeler “directed [] Lightwine and other
subcontractors during the project”; and (4) they later discovered the “siding was
warping and pulling away from the home” and “was not installed pursuant to the
instructions provided by the siding manufacturer.” They raised breach-of-contract,
negligent-construction, and breach-of-implied-warranty claims against Lightwine
and Wheeler and respondeat superior/vicarious liability and negligence claims
against Carson Stone.
Wheeler moved for summary judgment. The district court granted the
motion “as to all claims made against Wheeler by the Yakels.” The Yakels
appealed.
The supreme court, on its own motion, raised a jurisdictional issue premised
on the dismissal of claims against only one of the three defendants. The court
stated, “[T]he order granting [Wheeler’s] motion for partial summary judgment may
be interlocutory” because
[i]f the claimed basis of liability of the dismissed defendants is connected with, or so related to, the claimed basis of liability of the remaining defendants that one may affect the other, a judgment as to the discharged defendants is not appealable until the issues as to the remaining defendants are settled. 3
(quoting McGuire v. City of Cedar Rapids, 189 N.W.2d 592, 597 (Iowa 1971)). The
court required this court to address the jurisdictional issue. We begin and end
there.
“A party may appeal as of right only from a final order or judgment; a party
seeking to appeal an interlocutory order must obtain permission of the appellate
court.” Mason City Prod. Credit Ass’n v. Van Duzer, 376 N.W.2d 882, 884–85
(Iowa 1985); see also Iowa R. App. P. 6.103. “Whether a complete dismissal of
one defendant in a multi-defendant action is final for purposes of appeal turns on
the question of whether the interest of the dismissed defendant is severable from
the claims against the [remaining] defendants.” Buechel v. Five Star Quality Care,
Inc., 745 N.W.2d 732, 735 (Iowa 2008). “Separate and distinct causes of action
must be such as are both separable from each other and separable by some
distinct line of demarcation.” McGuire, 189 N.W.2d at 597.
In order to be severable, and therefore appealable, any determination of the issues settled by the judgment of dismissal must not affect the determination of the remaining issues, whether the judgment on appeal is reversed or affirmed, and the determination of the remaining issues must not affect the final determination of the issues between the plaintiffs and the dismissed defendants. It is not necessarily the identity of the defendants’ interests which controls, but whether the determination of the issues as to any defendant depends on or affects the determination of the issues as to the other defendants. If the claimed basis of liability of the dismissed defendants is connected with, or so related to, the claimed basis of liability of the remaining defendants that one may affect the other, a judgment as to the discharged defendants is not appealable until the issues as to the remaining defendants are settled.
Id. (quoting Att’y Gen. of Utah v. Pomeroy, 73 P.2d 1277, 1294 (Utah 1937)).
The requirement that claims be severable along a distinct line of
demarcation aligns with “the general policy against piecemeal appeals.” Id. at 596. 4
That is particularly true in the civil context, where “the policy favoring avoidance of
piecemeal appeals” outweighs the need for prompt disposition of cases.
Shoemaker v. City of Muscatine, 275 N.W.2d 206, 208–09 (Iowa 1979); see also
Stockton Realty Co. v. Muscatine Cnty. Solid Waste Mgmt. Agency, No. 03–1331,
2004 WL 1902518, at *3 (Iowa Ct. App. Aug. 26, 2004).
We first consider the Yakels’ “respondeat superior/vicarious liability” and
negligence claims against Carson Stone. “Translated from Latin, respondeat
superior means ‘let the principal answer.’” Teebo v. Johnson, No. 17-1683, 2018
WL 2084845, at *1 (Iowa Ct. App. May 2, 2018). “[U]nder the doctrine of
respondeat superior, an employer is liable for the negligence of an employee
committed while the employee is acting within the scope of his or her employment.”
Godar v. Edwards, 588 N.W.2d 701, 705 (Iowa 1999) (citations omitted).
“Vicarious liability is broadly defined as liability a person bears for the actionable
conduct of another person because of a relationship between the two parties.”
Jones v. Glenwood Golf Corp., 956 N.W.2d 138, 143 (Iowa 2021) (citation
omitted). “Vicarious liability is commonly used in cases involving respondeat
superior, principals and agents, employers and employees, or other similar
relationships.” Wells Dairy, Inc. v. Am. Indus. Refrigeration, Inc., 762 N.W.2d 463,
471 (Iowa 2009). “[A] claim of vicarious liability under the doctrine of respondeat
superior rests on two elements: proof of an employer/employee relationship, and
proof that the injury occurred within the scope of that employment.” Godar, 588
N.W.2d at 705 (citation omitted).
The Yakels alleged (1) Wheeler “was acting within the scope and course of
his employment with [] Carson Stone when he contracted with” them; (2) Carson 5
Stone was “vicariously liable for the negligent acts of [] Wheeler, its employee,
under the doctrine of respondeat superior”; (3) Wheeler, “while in the course and
scope of his employment with [] Carson Stone, was negligent in providing
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IN THE COURT OF APPEALS OF IOWA
No. 20-1432 Filed January 12, 2022
PAUL YAKEL and THERESE YAKEL, Plaintiffs-Appellants,
vs.
RANDALL W. WHEELER, individually, Defendant-Appellee,
and
LIGHTWINE CONSTRUCTION, INC., and CARSON STONE & SUPPLY, LLC, Defendants. ________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, James S.
Heckerman, Judge.
Paul and Therese Yakel appeal the district court’s grant of a defendant’s
motion for summary judgment. APPEAL DISMISSED.
Sean A. Minahan of Lamson Dugan & Murray, LLP, Omaha, for appellants.
Brody D. Swanson of Peters Law Firm, P.C., Council Bluffs, for appellee.
Jack Ruesch of Telpner Peterson Law Firm, Council Bluffs, for defendant
Lightwine Construction, Inc.
Gregory G. Barntsen of Smith Peterson Law Firm, LLP, Council Bluffs, for
defendant Carson Stone & Supply, LLC.
Considered by Bower, C.J., and Vaitheswaran and Schumacher, JJ. 2
VAITHESWARAN, Judge.
Paul and Therese Yakel filed an amended petition against Lightwine
Construction, Inc. (Lightwine), Carson Stone & Supply, LLC (Carson Stone), and
Randall W. Wheeler alleging (1) they “obtained bids from several contractors to
tear off and install new siding on their home”; (2) they “obtained a proposal from
Defendant Lightwine for the labor to remove the original siding and installation of
new siding on [their] home”; (3) Wheeler “directed [] Lightwine and other
subcontractors during the project”; and (4) they later discovered the “siding was
warping and pulling away from the home” and “was not installed pursuant to the
instructions provided by the siding manufacturer.” They raised breach-of-contract,
negligent-construction, and breach-of-implied-warranty claims against Lightwine
and Wheeler and respondeat superior/vicarious liability and negligence claims
against Carson Stone.
Wheeler moved for summary judgment. The district court granted the
motion “as to all claims made against Wheeler by the Yakels.” The Yakels
appealed.
The supreme court, on its own motion, raised a jurisdictional issue premised
on the dismissal of claims against only one of the three defendants. The court
stated, “[T]he order granting [Wheeler’s] motion for partial summary judgment may
be interlocutory” because
[i]f the claimed basis of liability of the dismissed defendants is connected with, or so related to, the claimed basis of liability of the remaining defendants that one may affect the other, a judgment as to the discharged defendants is not appealable until the issues as to the remaining defendants are settled. 3
(quoting McGuire v. City of Cedar Rapids, 189 N.W.2d 592, 597 (Iowa 1971)). The
court required this court to address the jurisdictional issue. We begin and end
there.
“A party may appeal as of right only from a final order or judgment; a party
seeking to appeal an interlocutory order must obtain permission of the appellate
court.” Mason City Prod. Credit Ass’n v. Van Duzer, 376 N.W.2d 882, 884–85
(Iowa 1985); see also Iowa R. App. P. 6.103. “Whether a complete dismissal of
one defendant in a multi-defendant action is final for purposes of appeal turns on
the question of whether the interest of the dismissed defendant is severable from
the claims against the [remaining] defendants.” Buechel v. Five Star Quality Care,
Inc., 745 N.W.2d 732, 735 (Iowa 2008). “Separate and distinct causes of action
must be such as are both separable from each other and separable by some
distinct line of demarcation.” McGuire, 189 N.W.2d at 597.
In order to be severable, and therefore appealable, any determination of the issues settled by the judgment of dismissal must not affect the determination of the remaining issues, whether the judgment on appeal is reversed or affirmed, and the determination of the remaining issues must not affect the final determination of the issues between the plaintiffs and the dismissed defendants. It is not necessarily the identity of the defendants’ interests which controls, but whether the determination of the issues as to any defendant depends on or affects the determination of the issues as to the other defendants. If the claimed basis of liability of the dismissed defendants is connected with, or so related to, the claimed basis of liability of the remaining defendants that one may affect the other, a judgment as to the discharged defendants is not appealable until the issues as to the remaining defendants are settled.
Id. (quoting Att’y Gen. of Utah v. Pomeroy, 73 P.2d 1277, 1294 (Utah 1937)).
The requirement that claims be severable along a distinct line of
demarcation aligns with “the general policy against piecemeal appeals.” Id. at 596. 4
That is particularly true in the civil context, where “the policy favoring avoidance of
piecemeal appeals” outweighs the need for prompt disposition of cases.
Shoemaker v. City of Muscatine, 275 N.W.2d 206, 208–09 (Iowa 1979); see also
Stockton Realty Co. v. Muscatine Cnty. Solid Waste Mgmt. Agency, No. 03–1331,
2004 WL 1902518, at *3 (Iowa Ct. App. Aug. 26, 2004).
We first consider the Yakels’ “respondeat superior/vicarious liability” and
negligence claims against Carson Stone. “Translated from Latin, respondeat
superior means ‘let the principal answer.’” Teebo v. Johnson, No. 17-1683, 2018
WL 2084845, at *1 (Iowa Ct. App. May 2, 2018). “[U]nder the doctrine of
respondeat superior, an employer is liable for the negligence of an employee
committed while the employee is acting within the scope of his or her employment.”
Godar v. Edwards, 588 N.W.2d 701, 705 (Iowa 1999) (citations omitted).
“Vicarious liability is broadly defined as liability a person bears for the actionable
conduct of another person because of a relationship between the two parties.”
Jones v. Glenwood Golf Corp., 956 N.W.2d 138, 143 (Iowa 2021) (citation
omitted). “Vicarious liability is commonly used in cases involving respondeat
superior, principals and agents, employers and employees, or other similar
relationships.” Wells Dairy, Inc. v. Am. Indus. Refrigeration, Inc., 762 N.W.2d 463,
471 (Iowa 2009). “[A] claim of vicarious liability under the doctrine of respondeat
superior rests on two elements: proof of an employer/employee relationship, and
proof that the injury occurred within the scope of that employment.” Godar, 588
N.W.2d at 705 (citation omitted).
The Yakels alleged (1) Wheeler “was acting within the scope and course of
his employment with [] Carson Stone when he contracted with” them; (2) Carson 5
Stone was “vicariously liable for the negligent acts of [] Wheeler, its employee,
under the doctrine of respondeat superior”; (3) Wheeler, “while in the course and
scope of his employment with [] Carson Stone, was negligent in providing
contractor services to” them; (4) Wheeler “was instructed by [] Carson Stone to
provide designs and to use [] Carson Stone’s materials in the designs”; and
(5) “Carson Stone breached [its] duty of care in failing to properly train, supervise,
and instruct [] Wheeler over the course of the project.”
There is no question “determination of the issue[] settled by the . . .
dismissal” would “affect the determination of” the respondeat superior/vicarious
liability and negligence claims against Carson Stone. See McGuire, 189 N.W.2d
at 597.
We turn to the breach-of-contract, negligent-construction, and breach-of-
implied-warranty claims against Lightwine. The Yakels alleged (1) “Wheeler acting
within his scope of employment with [] Carson Stone, obtained a proposal from []
Lightwine for the labor to remove the original siding and installation of new siding
on [their] home”; (2) “Lightwine represented to [] Wheeler that it was qualified to
install [] the type of siding purchased by” them; (3) “Wheeler relayed [] Lightwine’s
representations to” them; (4) Wheeler “failed to ask [] Lightwine whether it had
installed real wood siding before”; (5) Wheeler “failed to provide [] Lightwine with
the manufacturer instructions from the siding manufacturer”; and (6) “Wheeler
acting within [his] scope of employment with [] Carson Stone directed [] Lightwine
and other subcontractors during the project.” They claimed Lightwine “breached
the contract by failing to properly install the siding in a workmanlike manner.” 6
The contract claim against Lightwine is inextricably entwined with the claims
against Wheeler and Carson Stone. See Lerdall Const. Co. v. City of Ossian, 318
N.W.2d 172, 175–76 n.2 (Iowa 1982) (stating, “A determination of the contract’s
legality in the trial against the city will plainly affect plaintiff’s case against the
individual defendants” and, “In the case at bar, we find no claim asserted against
the individual defendants which does not affect or will not be affected by a
determination of the issues involved in the claims against the city. Therefore, this
appeal . . . is not appealable as a matter of right”), holding modified on other
grounds by Banco Mortg. Co. v. Steil, 351 N.W.2d 784 (Iowa 1984). Resolution of
the terms and scope of the contract as the Yakels request requires consideration
of Wheeler’s role relative to the other defendants.
The negligent-construction claim against Lightwine incorporated the same
allegations underlying the breach-of-contract claim, including the allegation that
Wheeler, acting within the scope of his employment with Carson Stone directed
the activities of the subcontractors. The Yakels claimed Lightwine breached a duty
of care “in failing to properly install the siding pursuant to the manufacturer’s
instructions and in failing to use the degree of care, skill, and knowledge ordinarily
exercised by contractors in the installation of siding on a home.” The claim could
not be decided without determining Wheeler’s role.
The breach-of-implied-warranty claim against Lightwine was similarly
intertwined with Wheeler’s claim. The Yakels incorporated the previous allegations
by reference and claimed, “Lightwine, in its removal and installation of siding on
the home, impliedly warranted that the work performed would be performed in a
workmanlike manner, that the work was fit for the purpose it was intended, and 7
would be of good quality or free from defects.” They alleged, “Wheeler in the
course of providing contractor services to [them], impliedly warranted that the work
performed by him and his subcontractors would be performed in a workmanlike
manner, that the work was fit for the purpose it was intended, and would be of good
quality or free from defect.”
Because “the issues resolved by partial summary judgment[] are
inextricably entwined with unresolved issues,” the district court’s grant of summary
judgment in favor of Wheeler is not final and ripe for appeal as a matter of right.
See Van Duzer, 376 N.W.2d at 885.
We must next decide whether to treat the appeal as an application for
interlocutory appeal. See Buechel, 745 N.W.2d at 735; Iowa R. App. P. 6.104(2).
The supreme court “has traditionally been parsimonious about allowing
interlocutory appeals.” Van Duzer, 376 N.W.2d at 886. The court has
“emphasized the disadvantages of piecemeal appeals and cautioned that we view
with disfavor applications for permission to appeal.” Id. “The main factor in
determining whether such an interlocutory appeal should be granted is whether
consideration of the issues would serve the interest of sound and efficient judicial
administration.” Buechel, 745 N.W.2d at 735–36.
We are hard-pressed to discern how the grant of an application for
interlocutory appeal would serve the interests of sound and efficient judicial
administration. Each of the claims raises questions of fact or law that intersect
with claims that are currently before the district court. The interests of efficiency 8
and avoidance of piecemeal litigation dictate consideration of issues involving all
three defendants in a single appeal.
APPEAL DISMISSED.