IN THE COURT OF APPEALS OF IOWA
No. 23-2088 Filed October 1, 2025
URSULA GARDNER, Plaintiff-Appellant,
vs.
DES MOINES STUCCO, LLC, Defendant-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Howard County, Alan Heavens,
Judge.
A plaintiff appeals the district court’s judgment on her breach-of-contract
claim. AFFIRMED.
Kevin E. Schoeberl of Story, Schoeberl & Seebach L.L.P., Cresco, for
appellant.
Mark R. Hinshaw of The Law Offices of Mark R. Hinshaw, West Des Moines,
for appellee.
Considered without oral argument by Schumacher, P.J., and Buller and
Langholz, JJ. 2
LANGHOLZ, Judge.
This is a contract dispute between Ursula Gardner and Des Moines
Stucco, LLC, the contractor she hired to install a stucco-like exterior to her newly
built home. After a bench trial, the district court found that Des Moines Stucco
breached the contract when it stopped work after completing only the first of two
coats of stucco. But the court also found that Gardner failed to mitigate her
damages because she did not hire a new contractor to complete the second coat
for over eighteen months, causing the first coat to deteriorate and requiring the
new contractor to do two more coats rather than just one. And so, in calculating
the damages award, the court found that Gardner could have reduced her
expenses with the new contractor by half if she had mitigated. The court also
awarded only $1 in nominal damages—rather than the $5000 she requested—for
Gardner’s loss of the warranty she was originally promised under the contract
because she failed to prove the value of the warranty. And the court denied
Gardner’s request for common-law attorney fees.
On appeal, Gardner challenges each of these adverse rulings. But this case
was tried at law, so we are bound by the district court’s factual findings if they are
supported by substantial evidence. That sets a high bar on appeal that Gardner
has not cleared. Substantial evidence supports the court’s finding that Gardner
failed to mitigate her damages and its calculation of the damages that could have
been mitigated. So too does it support the court’s finding that Gardner failed to
prove the value of her lost warranty. And nothing in the record comes close to the
egregious behavior needed to support Gardner’s extraordinary request for
common-law attorney fees. We thus affirm the district court’s judgment. 3
I. Background Facts and Proceedings
Gardner retired from the Army in 2018 and planned to build her dream home
on part of her family farm in Cresco, Iowa. Gardner envisioned a Mediterranean-
style home with a vineyard out back. And she had the goal of opening a bed and
breakfast in the future.
As part of the construction process, Gardner contracted with Des Moines
Stucco in May 2019 to install a stucco-like exterior on her home. Under the
contract, Des Moines Stucco would install a stucco-like “exterior insulated finish
system” that is made up of two coats: a base coat of foam and mesh and a finish
coat. And Gardner would pay a total of $64,784 in three installments of
$21,594.67—one payment up front for materials, another after application of the
base coat, and the final payment after completion of the project. Gardner made
the first and second payments without controversy.
But the relationship between Gardner and Des Moines Stucco broke down
before the installation of the final coat. So in late June 2019, Des Moines Stucco
emailed Gardner to request 90% of the final payment before it would return to
install the final coat to complete the project. Gardner rejected the proposed
modification of the contract. And the next day, Des Moines Stucco gave Gardner
two options: modify the contract as it had proposed or end the relationship.
Gardner responded by suggesting Des Moines Stucco may be in breach of their
contract and highlighting that if it refused to complete the work she would have “an
additional expense to bring[] in another contractor.”
With the impasse still unresolved on July 9, 2019, Gardner issued an
ultimatum that “if the crew does not return by July 24th to begin completing the 4
project, a district court case will be filed for the amount already received plus any
other fees as no company is going to warranty Des Moines Stucco’s work.” Des
Moines Stucco responded the same day, again summarizing its “many concerns”
with returning and explaining that it does “everything possible to make every single
customer we work with extremely happy” and that it felt it had “gone out of our way
to do that for you but it is just not possible.” Gardner’s July 24 deadline came and
went without Des Moines Stucco returning to complete the project.
It was another four months before Gardner filed this lawsuit. During that
time, Gardner’s attorney sent two letters to Des Moines Stucco demanding that it
complete work on the project. In the second letter, sent on August 15, the attorney
gave Des Moines Stucco until August 26 to complete the project and threatened
that if it did not do so, Gardner would sue. Des Moines Stucco never returned to
complete the project. And in mid-November, Gardner sued, asserting claims for
(1) specific performance; (2) breach of contract; (3) breach of implied warranty of
fitness for particular purpose; (4) breach of implied warranty of merchantability;
and (5) breach of duty of good faith and fair dealing.
In March 2021—sixteen months after filing suit and nineteen after her final
deadline for Des Moines Stucco to return to work—Gardner finally hired a new
contractor to complete the installation of the stucco-like exterior. Gardner had first
contacted two other potential contractors but did not reach an agreement with
either of them to perform the work. Because of the condition of the already-applied
base coat, the new contractor had to apply two more coats rather than just the one
finish coat intended under the original contract between Des Moines Stucco and
Gardner. Gardner thus paid the new contractor $52,400—significantly more than 5
the final payment of $21,594.67 she would have paid under the original contract.
The new contractor completed the installation in June 2021—two years after Des
Moines Stucco left it unfinished. And the same month, Gardner dismissed her
specific-performance claim—two days before it was set to be tried to the court.
After a one-day bench trial on the remaining claims in November 2023, the
district court found that Des Moines Stucco breached its contract with Gardner and
entered judgment in her favor on her breach of contract claim. But the court
awarded Gardner only $18,861.33 of the $50,060.13 in damages that she
requested. The court disagreed with two aspects of her request.1
First, the court found that Gardner failed to mitigate her damages by
unreasonably delaying in hiring a new contractor to complete the project. The
court found that her new contractor “had to put two coats on instead of just the final
coat” because “the cold weather over the winter of 2019 and then the winter of
2020 ruined the work that Des Moines Stucco had already done.” And it reasoned
that she “knew after July 24, 2019 that Des Moines Stucco was not coming back
to finish the project” and her “decision to wait that long was not reasonable and
undeniably made the project more expensive to complete.” So the court found that
Gardner could have reduced her expenses with the new contractor by half—from
$52,400 to $26,200—if she had mitigated. And it calculated her damage award
using that lower number.2
1 The court agreed with the rest of her request, awarding another $14,255 in damages that are not at issue on appeal. 2 The court subtracted the $21,594.67 that Gardner would have had to pay Des
Moines Stucco under the contract resulting in an award of $4605.33 to cover Gardner’s completion costs. Gardner does not dispute this part of the calculation. 6
Second, the court found that Gardner failed to prove that she lost $5000
from not receiving the workmanship and materials warranties from Des Moines
Stucco that she was entitled to under the contract. The court noted that she failed
to introduce any expert actuarial evidence or any other “credible basis to support
her claim.” And so, it reasoned that “[t]he warranties promised to Gardner are
surely worth something, but with nothing in the record to determine how much that
is, Gardner is only entitled to nominal damages of $1.”
The court dismissed Gardner’s other claims “as moot because they ask for
the exact same damages” as her breach-of-contract claim. And the court denied
her request for common-law attorney fees. It found that “[n]othing approaching”
the heightened “level of culpability is part of the record in this case,” reasoning that
Des Moines Stucco had raised “legitimate issues” and that “Gardner was not
awarded all of the damages that she requested.”
Both parties moved to reconsider different parts of the damages award. The
district court denied both motions. And only Gardner now appeals.
II. Mitigation of Damages
Gardner first challenges the district court’s findings that she (1) failed to
mitigate her damages because she did not hire a new contractor sooner and
(2) could have reduced her expenses with the new contractor by half if she had
done so. The parties agree that this case was tried to the district court at law and
that we thus review for correction of errors at law. See R.E.T. Corp. v. Frank
Paxton Co., Inc., 329 N.W.2d 416, 418–19 (Iowa 1983). The district court’s factual
findings “have the force of a special verdict and are binding on us if supported by
substantial evidence.” Id. at 419; see also Iowa R. App. P. 6.904(3)(a). “We view 7
the evidence in the light most consistent with the judgment.” R.E.T. Corp., 329
N.W.2d at 419. And when engaging in this review, we ask “whether substantial
evidence supports the finding actually made by the trial court, not whether
substantial evidence would have supported a different finding.” Van Oort Constr.
Co. v. Nuckoll’s Concrete Serv., Inc., 599 N.W.2d 684, 691 (Iowa 1999).
“A person asserting breach of contract has a duty to mitigate the damages.”
Kuehl v. Freeman Bros. Agency, Inc., 521 N.W.2d 714, 719 (Iowa 1994). “This
means that the nonbreaching party must take reasonable measures to lessen the
damages caused by the other party’s breach.” UE Loc. 893/IUP v. State,
997 N.W.2d 1, 15 (Iowa 2023) (cleaned up). And “[t]his duty is one of reasonable
diligence.” Id. (cleaned up). Yet the breaching party who asserts “inadequate
mitigation” has “the burden of pleading and proving” this defense. Id.
Failure to Mitigate. The district court found that Gardner failed to mitigate
her damages caused by Des Moines Stucco’s breach when it walked off the job in
July 2019 because she did not hire a new contractor until after the base coat had
sat exposed through two winters—causing deterioration of the base coat that
required an extra coat and increased expense to complete the project. These
findings are supported by substantial evidence. The new contractor—Gardner’s
own witness—testified that he had to apply any extra coat because of the condition
of the base coat, which “was not thick enough” and “the mesh was showing
through.” And Des Moines Stucco’s operations manager with decades of
experience testified that in his opinion, no extra coat would have been needed if
the finished coat had been applied in the five months after it stopped work on the
project before the first winter. He explained that when the base coat sits “bare to 8
the elements for years” it forms “efflorescence” and described that “once it gets
rained on, froze, heat, freeze, rained on, it starts to deteriorate; and it kind of turns
to dust.” Indeed, on cross-examination even Gardner successfully sought his
agreement “that some of the issues here, the damage that was reflected, was
because of the delay of—what a better word—putting the finishing product on.”
On appeal, Gardner focuses on the testimony of her new contractor,
suggesting that it shows that the extra coat “was due to an inadequate original
base coat” and highlighting that he did not testify about the weather causing
deterioration. She also argues that the district court should not have credited the
testimony of Des Moines Stucco’s operations manager about the consequences
of letting the base coat sit in the elements over two winters. But the district court
found the manager’s testimony credible. And as “the trier of fact,” that court—not
us—“has the prerogative to determine which evidence is entitled to belief.” Tim
O’Neill Chevrolet, Inc. v. Forristall, 551 N.W.2d 611, 614 (Iowa 1996). And while
Gardner is right that the new contractor did not testify about possible deterioration,
neither did he opine that leaving the base coat exposed to the elements for two
winters could not have caused the condition of the base coat that resulted in having
to apply an extra coat.
Gardner also argues her conduct after Des Moines Stucco’s breach was
reasonable because she could not find a new contractor sooner and was still
seeking to force Des Moines Stucco to return through her demands and eventual
suit for specific performance. But the district court’s contrary finding that her delay
was unreasonable is supported by substantial evidence. Des Moines Stucco
presented evidence that there were many other stucco contractors around Iowa 9
and that there were about five months between when it stopped work and the
weather would get too cold for the work to be completed. There is no evidence
Gardner made any attempt to find a new contractor during this time. While Gardner
testified that she talked to two contractors sometime before hiring her new
contractor in March 2021, the record does not show when she started those
attempts. The record also shows that Gardner was able to hire a contractor despite
any concerns about finishing another contractor’s work. And there is no evidence
that the contractor she eventually hired would have been unable or unwilling to do
the project in the summer or fall of 2019 or why Gardner did not contact that
contractor sooner.
Gardner’s contention that it was reasonable for her delay seeking out a new
contractor because she sought specific performance from Des Moines Stucco
fares no better. For starters, Gardner has cited no authority from Iowa or any
jurisdiction holding that a claim for specific performance could satisfy the duty to
mitigate.3 But even assuming that it could, the record shows that by June 28, 2019,
the parties had made their intentions clear to each other. Des Moines Stucco told
Gardner it would end their relationship unless she agreed to new payment terms.
And she told Des Moines Stucco she was not open to renegotiating. Any possible
reasonable doubt was removed by July 24—the deadline given by Gardner for Des
Moines Stucco to return to work in her threat to sue. Her July ultimatum also shows
3 Gardner also offers no explanation for how such a rule would be consistent with
the limited availability of the extraordinary remedy of specific performance. See UE Loc. 893/IUP, 997 N.W.2d at 12 (“[W]hen damages would be adequate to protect the expectation interest of the injured party, equitable remedies like specific performance are usually precluded.” (cleaned up)). 10
that she was already thinking about the need to hire someone else, threatening
that in her suit, she would seek “the amount already received plus any other fees
as no company is going to warranty Des Moines Stucco’s work.” Yet Gardner did
not file suit until four months later—at the close of the temperature window when
the project could still be completed before exposure to winter. Such a delay is not
an exercise of reasonable diligence under these circumstances. Substantial
evidence supports the court’s finding that Gardner failed to mitigate her damages.
Amount of Damages Reduction for the Failure to Mitigate. The district court
found that Gardner’s failure to mitigate doubled her expenses with the new
contractor. And so, in calculating her damages for completion of the project, the
court cut the $52,400 that she paid in half to $26,200. Gardner argues that this
lower damage award “is not supported by any evidence in the record or argument
of the parties.” We disagree.
Because the court found that Gardner’s failure to mitigate caused her new
contractor to apply two coats instead of one, a reduction in damages to account
for the cost of the extra coat was appropriate. And the court could reasonably
estimate that each coat would cost about half of the total cost of two coats. What’s
more, Des Moines Stucco presented evidence that the cost of completing the
project—if she had done so in the summer or fall of 2019—would have been about
$20,000. So the amount the court used for an appropriate reduction—more than
$6000 higher—was well within the range of evidence supported by the record.
Gardner had the chance to introduce her own evidence of the appropriate
reduction to attribute to the extra coat. But she did not do so—choosing instead
to rest on her argument that she did reasonably mitigate her damages. 11
In sum, Gardner has not cleared the high bar to show that any of the district
court’s factual findings about her failure to mitigate damages and the resulting
reduction in her damages award are unsupported by substantial evidence. So we
affirm this part of the district court’s judgment.
III. Amount of Damages for Lack of Warranties
Gardner also challenges the district court’s award of $1 in nominal damages
for Des Moines Stucco’s failure to provide the workmanship and materials
warranties promised under their contract based on court’s finding that she had
failed to prove her claim that the warranties were worth $5000. We review this
factual finding too for correction of errors at law and are bound by it so long as it is
supported by substantial evidence. See UE Loc. 893/IUP, 997 N.W.2d at 15. And
again, substantial evidence supports the district court’s finding.
To be sure, “the difficulty of proving the amount of damages from the breach
of contract is no reason why recovery should be denied altogether, and a
defendant who has voluntarily breached a contract cannot demand proof of
plaintiff’s damages therefrom with great particularity or exactness.” Natkin & Co.
v. R.F. Ball Constr. Co., 123 N.W.2d 415, 423 (Iowa 1963) (cleaned up). But still,
a “plaintiff must prove a definite or reasonable basis for the computation on which
[she] relies.” Id. (cleaned up); see also Basic Chemicals, Inc. v. Benson, 251
N.W.2d 220, 233 (Iowa 1977) (declining to “interfere with the amount” of a
damages award calculated by the district court where “there was proof of a
reasonable basis from which the amount of damages can be inferred or
approximated”). Gardner did not prove any basis for computing her claimed value. 12
When asked by her own counsel at trial how she arrived at the $5000 value
for her loss of the warranties, Gardner responded, “I guess just because right now
I don’t have a warranty on the house.” She gave no other basis for valuing her
loss at that amount nor any reason to believe that she has expertise at establishing
the value of the warranties. Gardner asked no other witness about the value of
the lost warranties. And she presented no expert testimony about its value. We
do not suggest that Gardner had to present evidence in all of these ways or that
she had to come to an exact dollar figure. But she had to present something more
than rank speculation. And after scouring the record, like the district court, we see
no reasonable basis on which to base a damages amount. We thus have little
difficulty concluding that substantial evidence supports the court’s finding that she
failed to meet her burden of proof.
In an attempt to shore up this deficiency on appeal, Gardner highlights that
the $5000 value “is approximately 7.7% of the total contract with Des Moines
Stucco” and “represents $200 per year over the 25 year warranty lifetime.” But
while this math checks out, it gives Gardner no support. Setting aside her failure
to make this argument in the district court, she points to no evidence explaining
why either figure has any meaning in the valuation of a materials or workmanship
warranty. We thus affirm the district court’s award of damages for Des Moines
Stucco’s failure to provide the workmanship and materials warranties.
IV. Common-Law Attorney Fees
Parties typically pay their own attorney fees absent a statute or contract that
requires fee shifting. UE Loc. 893/IUP, 997 N.W.2d at 15. Gardner points to no
such statute or contract here. Rather she argues that the district court should have 13
awarded her attorney fees under the “rare” common-law-attorney-fees exception.
Id. “Common law attorney fees can only be awarded against a party whose
behavior is extraordinarily culpable.” Id. “[T]he conduct must exceed the kind of
willful and wanton disregard that permits an award of punitive damages.” Id.
(cleaned up). Even “mere bad faith” is not enough. Id. at 16 (cleaned up). Rather,
“the conduct must rise to the level of oppression or connivance to harass or injure
another.” Id. at 15 (cleaned up). We review the district court’s denial of a request
for common-law attorney fees de novo. Id.
On our de novo review, we agree with the district court that Gardner has
failed to show that Des Moines Stucco’s conduct came even close to this required
level of extraordinary culpability. Gardner points to Des Moines Stucco’s conduct
stopping work on the project, failing to assist her in finding a replacement
contractor, and saying through its operations manager that “I wouldn’t refer her to
nobody.” To be sure, this conduct shows that Des Moines Stucco breached its
contract—and Gardner obtained a judgment against Des Moines Stucco for that
breach. But it does not rise to the level of oppression that would support a
common-law-attorney-fees award. See id. We thus affirm the district court’s denial
of Gardner’s request for common-law attorney fees.
AFFIRMED.