IN THE COURT OF APPEALS OF IOWA
No. 17-0293 Filed November 8, 2017
WINDOW WORLD OF OMAHA, Plaintiff-Appellant,
vs.
JASON KOPIASZ and JUNE KOPIASZ, Defendants-Appellees. ________________________________________________________________
Appeal from the Iowa District Court for Shelby County, Susan
Christensen, Judge.
A contractor appeals the district court judgment finding the contractor
breached the terms of a contract and awarding the homeowners damages.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Michael J. Riley and Bryan D. Swain of Salvo, Deren, Schenck, Gross,
Swain & Argotsinger, P.C., Harlan, for appellant.
Kyle J. McGinn of McGinn, Springer & Noethe P.L.C., Council Bluffs, for
appellees.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ. 2
VOGEL, Presiding Judge.
Window World of Omaha sued Jason and June Kopiasz for unpaid
balances on contracts entered into to replace windows, siding, soffit, fascia, and
gutters and downspouts on the Kopiaszes’ home. The Kopiaszes
counterclaimed for damages, alleging Window World had breached the
contracts. The district court held Window World breached the contracts and
awarded damages, in part, to the Kopiaszes. Window World asserts the district
court erred in holding it breached the contracts with the Kopiaszes or,
alternatively, the district court incorrectly calculated damages.
I. Background Facts and Proceedings
The Kopiaszes contacted Window World in 2011 after receiving hail
damage to the siding of their home. A sales manager for Window World, toured
the home and suggested the windows be replaced prior to any work on the
siding. On November 16, 2011, the Kopiaszes entered into a contract to replace
the windows on their home for $5500. The Kopiaszes paid $2750 upon signing
the contract. The second half of the payment, $2750, which due upon
completion of the project on March 7, 2012, was withheld by the Kopiaszes
because they were dissatisfied with the work. Initially, the crank arms fell off of
the window when the windows were opened; subsequently, most of the windows
did not seal, and when the windows were closed and locked, the window and the
gasket did not meet. Additionally, all of the windows leaked. A Window World
representative visited the home approximately ten times to “fool around” with the
windows. Eventually, because of the lifetime warranty, Window World offered to
replace the window sashes, which it felt would be a good solution to the 3
problems. By June 2014, the sashes were obtained, but negotiations with the
Kopiaszes had ceased, and the sashes were not installed.
Meanwhile, on April 4, 2013, the Kopiaszes entered into a contract with
Window World to install vinyl siding, soffit, fascia, window and door wraps, and
gutters and downspouts. The total price of the contract was $13,619 with $8000
paid upon signing. The Kopiaszes’ home included fascia that had crown
molding, so Window World determined the gutters were required to be strapped
to the house. Strapped gutters are screwed into the roof, however. Window
World advertising material does not include a home with gutter straps. The
Kopiaszes objected to the gutters being strapped to the roof.
Because the siding, soffit and fascia was not installed in accordance with
the Kopiaszes’ design preferences, the remaining balance of $5619 was unpaid.1
The Kopiaszes decided to engage another contractor, Jose Home
Improvements, to address the problems they were having. Jose Rivera, the
owner-operator, testified that he had twenty-six years of experience in
construction, including soffit, fascia and window work, and had owned his own
business for twelve years. Rivera “fixed” the work Window World had done on
the soffit and fascia, charging the Kopiaszes $2200 for his work, and installed
gutters and downspouts for an additional $1000, all in accordance with the
Kopiaszes’ wishes. Additionally, Rivera indicated $9300 would be a fair and
reasonable estimate for replacing the windows, as he determined none of the
windows could be salvaged for repair.
1 Window World reduced the unpaid balance by $1750, as it had not installed the gutters and downspouts, which left an unpaid balance of $3869. 4
On October 12, 2015, Window World filed their petition against the
Kopiaszes for the balance of both contracts, which totaled $6619.2 The
Kopiaszes counterclaimed for damages, alleging Window World breached the
contracts between the parties. After a trial, the district court filed its order on
December 23, 2016. Regarding the siding contract for soffit and fascia, the court
granted the Kopiaszes’ counterclaim in part, but ordered the Kopiaszes to pay
Window World $669 of the $3869 demanded. Regarding the window contract,
the court held Window World breached the contract, and awarded the Kopiaszes
$9300—the estimated cost of replacing all the windows. The court offset the
awards and ordered Window World to pay $8631 to the Kopiaszes.
Window World appeals.
II. Standard of Review
We review an action for breach of contract for errors of law. Land
O’Lakes, Inc. v. Hanig, 610 N.W.2d 518, 522 (Iowa 2000). The trial court’s
findings of fact have the effect of a special verdict and are binding if supported by
substantial evidence. Id.; see Iowa R. App. P. 6.907. Substantial evidence is
such that a reasonable mind would accept it as adequate to reach a conclusion.
Hanig, 610 N.W.2d at 522. We view the evidence in a light most favorable to the
trial court’s judgment. Id.
III. Breach of Contract
In challenging the district court’s ruling that Window World breached the
contracts, Window World notes the siding contract did not specify how the soffit
2 The remaining balance due Window World on the siding contract was $3869, plus the remaining balance of the window contract of $2750. 5
and fascia were to be completed and the Kopiaszes did not indicate they wanted
a particular style of soffit and fascia. With respect to the window contract,
Window World asserts it completed all of the terms and conditions when
installing the new windows and, once the windows began to leak, the
Kopiaszes—with a lifetime warranty—did not let Window World rectify the
situation by replacing the sashes.
The Kopiaszes contend Window World breached the window contract
because Window World attempted to rectify the window leaks at least ten times,
and yet, the windows continued to leak and remained inoperable. At that point,
the Kopiaszes felt they had no choice but to engage with another contractor.
Additionally, the Kopiaszes assert Window World breached the siding contract
because they formed a reasonable expectation the final product would resemble
the current style of their home based on Window World advertising materials and
conversations with a Window World sales representative. The district court
concluded neither product conformed “to the parties’ express or implied
agreement.” We agree.
A breach of contract occurs when a party, “without legal excuse . . . fails to
perform any promise which forms a whole or a part of the contract.” Molo Oil Co.
v.
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IN THE COURT OF APPEALS OF IOWA
No. 17-0293 Filed November 8, 2017
WINDOW WORLD OF OMAHA, Plaintiff-Appellant,
vs.
JASON KOPIASZ and JUNE KOPIASZ, Defendants-Appellees. ________________________________________________________________
Appeal from the Iowa District Court for Shelby County, Susan
Christensen, Judge.
A contractor appeals the district court judgment finding the contractor
breached the terms of a contract and awarding the homeowners damages.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Michael J. Riley and Bryan D. Swain of Salvo, Deren, Schenck, Gross,
Swain & Argotsinger, P.C., Harlan, for appellant.
Kyle J. McGinn of McGinn, Springer & Noethe P.L.C., Council Bluffs, for
appellees.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ. 2
VOGEL, Presiding Judge.
Window World of Omaha sued Jason and June Kopiasz for unpaid
balances on contracts entered into to replace windows, siding, soffit, fascia, and
gutters and downspouts on the Kopiaszes’ home. The Kopiaszes
counterclaimed for damages, alleging Window World had breached the
contracts. The district court held Window World breached the contracts and
awarded damages, in part, to the Kopiaszes. Window World asserts the district
court erred in holding it breached the contracts with the Kopiaszes or,
alternatively, the district court incorrectly calculated damages.
I. Background Facts and Proceedings
The Kopiaszes contacted Window World in 2011 after receiving hail
damage to the siding of their home. A sales manager for Window World, toured
the home and suggested the windows be replaced prior to any work on the
siding. On November 16, 2011, the Kopiaszes entered into a contract to replace
the windows on their home for $5500. The Kopiaszes paid $2750 upon signing
the contract. The second half of the payment, $2750, which due upon
completion of the project on March 7, 2012, was withheld by the Kopiaszes
because they were dissatisfied with the work. Initially, the crank arms fell off of
the window when the windows were opened; subsequently, most of the windows
did not seal, and when the windows were closed and locked, the window and the
gasket did not meet. Additionally, all of the windows leaked. A Window World
representative visited the home approximately ten times to “fool around” with the
windows. Eventually, because of the lifetime warranty, Window World offered to
replace the window sashes, which it felt would be a good solution to the 3
problems. By June 2014, the sashes were obtained, but negotiations with the
Kopiaszes had ceased, and the sashes were not installed.
Meanwhile, on April 4, 2013, the Kopiaszes entered into a contract with
Window World to install vinyl siding, soffit, fascia, window and door wraps, and
gutters and downspouts. The total price of the contract was $13,619 with $8000
paid upon signing. The Kopiaszes’ home included fascia that had crown
molding, so Window World determined the gutters were required to be strapped
to the house. Strapped gutters are screwed into the roof, however. Window
World advertising material does not include a home with gutter straps. The
Kopiaszes objected to the gutters being strapped to the roof.
Because the siding, soffit and fascia was not installed in accordance with
the Kopiaszes’ design preferences, the remaining balance of $5619 was unpaid.1
The Kopiaszes decided to engage another contractor, Jose Home
Improvements, to address the problems they were having. Jose Rivera, the
owner-operator, testified that he had twenty-six years of experience in
construction, including soffit, fascia and window work, and had owned his own
business for twelve years. Rivera “fixed” the work Window World had done on
the soffit and fascia, charging the Kopiaszes $2200 for his work, and installed
gutters and downspouts for an additional $1000, all in accordance with the
Kopiaszes’ wishes. Additionally, Rivera indicated $9300 would be a fair and
reasonable estimate for replacing the windows, as he determined none of the
windows could be salvaged for repair.
1 Window World reduced the unpaid balance by $1750, as it had not installed the gutters and downspouts, which left an unpaid balance of $3869. 4
On October 12, 2015, Window World filed their petition against the
Kopiaszes for the balance of both contracts, which totaled $6619.2 The
Kopiaszes counterclaimed for damages, alleging Window World breached the
contracts between the parties. After a trial, the district court filed its order on
December 23, 2016. Regarding the siding contract for soffit and fascia, the court
granted the Kopiaszes’ counterclaim in part, but ordered the Kopiaszes to pay
Window World $669 of the $3869 demanded. Regarding the window contract,
the court held Window World breached the contract, and awarded the Kopiaszes
$9300—the estimated cost of replacing all the windows. The court offset the
awards and ordered Window World to pay $8631 to the Kopiaszes.
Window World appeals.
II. Standard of Review
We review an action for breach of contract for errors of law. Land
O’Lakes, Inc. v. Hanig, 610 N.W.2d 518, 522 (Iowa 2000). The trial court’s
findings of fact have the effect of a special verdict and are binding if supported by
substantial evidence. Id.; see Iowa R. App. P. 6.907. Substantial evidence is
such that a reasonable mind would accept it as adequate to reach a conclusion.
Hanig, 610 N.W.2d at 522. We view the evidence in a light most favorable to the
trial court’s judgment. Id.
III. Breach of Contract
In challenging the district court’s ruling that Window World breached the
contracts, Window World notes the siding contract did not specify how the soffit
2 The remaining balance due Window World on the siding contract was $3869, plus the remaining balance of the window contract of $2750. 5
and fascia were to be completed and the Kopiaszes did not indicate they wanted
a particular style of soffit and fascia. With respect to the window contract,
Window World asserts it completed all of the terms and conditions when
installing the new windows and, once the windows began to leak, the
Kopiaszes—with a lifetime warranty—did not let Window World rectify the
situation by replacing the sashes.
The Kopiaszes contend Window World breached the window contract
because Window World attempted to rectify the window leaks at least ten times,
and yet, the windows continued to leak and remained inoperable. At that point,
the Kopiaszes felt they had no choice but to engage with another contractor.
Additionally, the Kopiaszes assert Window World breached the siding contract
because they formed a reasonable expectation the final product would resemble
the current style of their home based on Window World advertising materials and
conversations with a Window World sales representative. The district court
concluded neither product conformed “to the parties’ express or implied
agreement.” We agree.
A breach of contract occurs when a party, “without legal excuse . . . fails to
perform any promise which forms a whole or a part of the contract.” Molo Oil Co.
v. River City Ford Truck Sales, Inc., 578 N.W.2d 222, 224 (Iowa 1998). Here, the
record contains evidence that all of the windows installed by Window World
leaked and needed to be replaced. June testified the arm used to crank the
windows open and closed would fall off and hang outside of the window. She
testified that the windows did not seal and there were nicks and tears in the
outside sealant causing leaks. There were approximately ten attempts to remedy 6
these issues, including installing new cranks and sash for sealant, with no
success. June testified, “They tried new cranks. They could not get those to
work. Couldn’t get them to install. They tried the new sash, the new window on
the inside. Could not get that to install.” At the time of trial, the windows were
still not in acceptable working condition. The record contains substantial
evidence Window World breached the window contract.
Further, there is substantial evidence Window World breached the siding
contract for the soffit and fascia. The Kopiaszes contracted with Window World
for soffit and fascia in the style represented in Window World advertising
materials. The advertising materials do not contain pictures of a house with
gutter straps. The Kopiaszes’ soffit and fascia choice was such that Window
World determined gutter straps were required, which would not match the other
gutters on their home. The district court held, “[i]t is reasonable to assume
defendants were expecting the new soffit and fascia to look like the rest of their
home.” Window World conceded it possesses more experience in this area than
the Kopiaszes; therefore, Window World would know what type of gutters had to
be installed as a result of the Kopiaszes’ particular choice of soffit and fascia.
Despite their superior experience, Window World did not indicate gutter straps
were required prior to beginning their work. Therefore, the record contains
substantial evidence Window World breached the siding contract by failing to
install the soffit and fascia as expected. We affirm the district court’s decision
finding Window World breached the terms of the contracts with the Kopiaszes. 7
IV. Damages
Window World next asserts even if it breached the contracts, the district
court incorrectly assessed and calculated the amount of damages. Specifically, it
asserts it offered to box in the gabled parts of the roof pursuant to the siding
contract for the soffit and fascia for $600; however, the Kopiaszes decided to hire
Rivera to remove and replace all the soffit and fascia for $2200. Regarding the
window contract, Window World contends the original windows, with a lifetime
warranty, cost $5500 and Rivera provided no basis for his estimate that replacing
the windows would cost $9300. In awarding the Kopiaszes damages, district
court held:
Regarding the first contract for siding, the court is granting [Kopiaszes] counterclaim in part. In particular, the court offsets the amount requested by [Window World] to be $669.00 calculated as follows: $3869.00 (balance owing on first contract) less $3200.00 (work performed by Jose Home Improvement). As a result of the breach of contract on the second contract for windows, [Kopiaszes] were damaged. . . . The court is persuaded by the testimony of Rivera that the windows installed by [Window World] cannot be fixed and must be replaced in their entirety. . . . The court thus sustains [Kopiaszes’] counterclaim regarding the second contract for windows and finds the recommended remedy of $9300.00 is fair and reasonable to cover the cost of windows as the parties originally agreed. [Kopiaszes’] request to be reimbursed their deposit of $2750.00 previously paid to [Window World] is denied.
“An essential element of a breach of contract claim is that the breach
caused a party to incur damages.” NevadaCare, Inc. v. Dep’t of Human Servs.,
783 N.W.2d 459, 468 (Iowa 2010). “The ‘ultimate purpose’ behind the allowance
of damages is to place the injured party in the position he or she would have
occupied if the contract had been performed.” Macal v. Stinson, 468 N.W.2d 34, 8
36 (Iowa 1991) (citation omitted). In defective construction cases, damages may
be calculated by diminution in value or by cost to repair when not
disproportionate to the probable loss of value. R.E.T. Corp. v. Frank Paxton Co.,
329 N.W.2d 416, 421 (Iowa 1983). The party seeking damages has the burden
to prove them. Sun Valley Iowa Lake Ass’n v. Anderson, 551 N.W.2d 621, 641
(Iowa 1996). “If the uncertainty is only in the amount of damages, a fact finder
may allow recovery provided there is a reasonable basis in the evidence from
which the fact finder can infer or approximate the damages.” Id.
Based on Rivera’s experience and familiarity installing windows, the
district court’s inference as to the replacement costs of windows was reasonable.
The district court calculated damages using the remaining balances owed to
Window World and the cost of work paid to Rivera. 3 The district court noted the
original price of the contracts but did not utilize the figures in its calculation.
Therefore, the court’s damages figure, calculated by offsetting $669 owed to
Window World from $9300 in replacement windows to be paid to the Kopiaszes,
does not accurately place the Kopiaszes in the position they would have
occupied if the original contracts had been performed. The Kopiaszes could
3 The district court ordered: IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that, regarding the first contract for siding, Defendants shall reimburse Plaintiff the sum of Six Hundred Sixty-Nine and no/100 Dollars ($669.00) as calculated above. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that, regarding the second contract for windows, Plaintiff shall pay damages to Defendants in the sum of Nine Thousand Three Hundred and no/100 Dollars ($9300.00) as outlined above. . . . IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the judgments entered in this matter shall be offset with each other such that Plaintiff shall pay Defendants Eight Thousand Six Hundred Thirty- One Dollars ($8631.00), with interest. Judgment is entered accordingly and due as of the filing of this order. 9
have reasonably expected to pay $19,119 for both contracts with Window
World.4 Instead, once new windows are installed through Rivera, and all other
work performed by Window World and Rivera, the Kopiaszes can reasonably
expect to pay $23,250.5 Therefore, to be made whole, the Kopiaszes should
have been awarded $4131 in damages.6 We conclude the district court erred in
calculating damages and remand for entry of an amended damages award
pursuant to this opinion.
V. Conclusion
Because Window World failed to install soffit and fascia in accordance
with the Kopiaszes expectation, and improperly installed windows causing leaks,
Window World breached both contracts; therefore, we affirm on that issue.
However, the district court incorrectly calculated damages awarded to the
Kopiaszes, and we reverse and remand for entry of damages to the Kopiaszes of
$4131.
4 The total cost of the original siding contract plus total cost of the window contract ($13,619 + $5500 = $19,119). 5 The siding down payment, plus the window down payment, plus the new siding Rivera installed, plus the new windows per Rivera’s estimate ($8000 + $2750 + $3200 + $9300 = $23,250). 6 The amount the Kopiaszes had to pay subtracted by the amount the Kopiaszes expected to pay ($23,250 – $19,119).