Date: 07-12-2015

Case Style: BRUENING ROCK PRODUCTS, INC. vs. HAWKEYE INTERNATIONAL TRUCKS,

Case Number: No. 14-1215

Judge: Heard by Danilson, C.J., and Vaitheswaran and Doyle, JJ.

Court: COURT OF APPEALS OF IOWA

Plaintiff's Attorney: Kevin J. Visser, Abbe M. Stensland, and Rae Kinkead of Simmons Perrine
Moyer Bergman, P.L.C

Defendant's Attorney: Steven J. Pace and Kelly A. Cwiertny of Shuttleworth & Ingersoll, P.L.C.

Description: Bruening Rock Products, Inc. purchased trucks from Hawkeye
International Trucks. In time, Bruening sued Hawkeye, alleging breach of its
contract to provide trucks with a gross vehicle weight rating (“GVWR”) of 74,000
pounds. The case was tried to a jury. At the close of Bruening’s evidence,
Hawkeye moved for a directed verdict on several grounds, including a theory that
Bruening’s real claim was one for breach of an implied warranty and the statute
of limitations on this claim had long since expired. The district court reserved
ruling on the motion. See Larkin v. Bierman, 213 N.W.2d 487, 490 (Iowa 1973)
(stating the better practice is to reserve ruling on the directed verdict motion until
after the jury has rendered verdict, so as to avoid retrial). The jury returned a
verdict in favor of Bruening for $1,167,904.85.
After trial, the district court took up the previously-reserved directed verdict
motion and concluded Bruening “failed to generate substantial evidence of a
breach of written contract term by [Hawkeye].” The court further concluded, “The
evidence introduced may have supported claims for breach of implied warranty;
however those claims were not timely made.” The court sustained the motion for
directed verdict and entered judgment in favor of Hawkeye and against Bruening.
Bruening appealed and Hawkeye cross-appealed.
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II. Appeal—Substantial Evidence
Bruening contends “substantial evidence supports the jury’s finding that
[Hawkeye] expressly promised performance, and failed to deliver on that
promise” and its “pled and proven contract claim cannot b[e] dismissed by the
trial court in ruling on a motion for directed verdict.” Our review is for correction
of errors at law. Determan v. Johnson, 613 N.W.2d 259, 261 (Iowa 2000). “A
defendant’s motion for directed verdict should be denied if there is substantial
evidence to support the plaintiff’s claim.” Hasselman v. Hasselman, 596 N.W.2d
541, 545 (Iowa 1999).
Bruening sued Hawkeye under a single theory: breach of contract.1 The
district court instructed the jury Bruening would have to prove the following:
1. The existence of a contract. 2. The terms of the contract, including a term that Defendant would provide trucks with a gross vehicle weight rating (GVWR) of 74,000 pounds. 3. The Plaintiff has done what the contract requires.
1 Hawkeye reiterates that Bruening’s claim was miscast as a breach-of-contract claim rather than a breach-of-implied-warranty claim. In its view, “As it is not disputed that a five year statute of limitations applies to implied warranty claims and the five year statute of limitations for any implied warranty for these trucks has long since expired, the district court was correct in finding that any claims based on the implied performance terms of the deal would be time barred.” Hawkeye did not file a motion to dismiss or raise the claimed statute-of-limitations defense in its answer or amended answer. See Rieff v. Evans, 630 N.W.2d 278, 289 (Iowa 2001) (stating defense could be raised in a motion to dismiss); Porter v. Good Eavespouting, 505 N.W.2d 178, 182 (Iowa 1993) (stating defendants had duty to raise statute-of-limitations defense in pleadings). Accordingly, the defense was waived. Porter, 505 N.W.2d at 182 (“Because the limitations defense was not raised, the defendant waived it.”); Conklin v. Towne, 216 N.W. 264, 266 (Iowa 1927) (“The statute of limitations was not set up as a defense until appellant had rested his case. If not taken advantage of by demurrer or answer, it will be deemed waived.”); see generally Bond v. Cedar Rapids Television Co., 518 N.W.2d 352, 355 (Iowa 1994) (“We have defined an affirmative defense as ‘one resting on facts not necessary to support plaintiff’s case.’ Under Iowa rule of civil procedure 101 these matters must be specially pleaded, and a motion for directed verdict or a motion for judgment notwithstanding the verdict do not qualify as special pleadings. Without such a pleading, the question may not be entertained on appeal.” (citations omitted)).
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4. The Defendant has breached the contract, by failing to provide trucks which met the terms of the contract. 5. The Amount of any damage the Defendant has caused.
The record contains substantial evidence to support these elements.
First, there is no question the parties entered into a contract. Bruening, an
operator of rock quarries, needed trucks to haul rock from one of its underground
mines. Bruening negotiated with Hawkeye to design and manufacture four trucks
capable of hauling approximately twenty-five tons of rock from the underground
mines. Following initial discussions, Hawkeye presented a proposal listing the
trucks’ specifications. Bruening accepted the proposal and the trucks were
manufactured by another company, Navistar.
Second, Hawkeye essentially concedes the existence of substantial
evidence establishing the GVWR as a term of the contract. The proposal stated
the trucks would carry a GVWR of 74,000 pounds, meaning the trucks could haul
74,000 pounds, including the weight of the truck. See Iowa Code § 321.1(29)(c)
(2009) (defining “gross vehicle weight rating” as “weight specified by the
manufacturer as the loaded weight of a single vehicle.”). During the
manufacturing process, Navistar suggested certain changes, which were
accepted by Bruening. At no time was the trucks’ GVWR modified to less than
74,000 pounds.
Hawkeye instead focuses on the import of the GVWR. In its view, the
GVWR of 74,000 pounds was not a “performance term” because “there was no
evidence at all that the inclusion of GVWR on the documents constituted a
promise the trucks would perform in any particular manner.” A reasonable juror
could have found otherwise.
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Bruening’s president testified he informed a Hawkeye representative “I
want to haul around 25 ton.” He stated, the 74,000 pound GVWR means “this
truck is designed with the weight of the load, with the weight of the truck, not to
exceed 74,000 pounds.” In other words, “the weight of the truck and then the
load in it cannot be over 74,000 pounds. That’s what the truck is rated at.” A
Bruening mechanic similarly testified the GVWR was important “[s]o that we
know what—how big a load we can put in the vehicle.”
Hawkeye confirmed this understanding. A Hawkeye employee who
ordered the trucks from Navistar testified Bruening approved certain changes to
the trucks “[i]f it didn’t affect our gross vehicle weight rating.”
In short, substantial evidence established the 74,000 pound GVWR was
more than a boiler-plate rating; it was a specific, negotiated term affecting the
performance of the vehicle. See generally Iowa Code § 554.2313(1)(b) (“Any
description of the goods which is made part of the basis of the bargain creates an
express warranty that the goods shall conform to the description.”).
The third element—Bruening’s performance of the contract—is essentially
undisputed. Bruening paid for the trucks and accepted delivery of them.
Hawkeye vigorously disputes the fourth element—whether there was a
breach. In its view, Bruening failed to show “the actual breach of the GVWR
rating itself.” Again, a reasonable juror could have found otherwise.
Bruening representatives testified the trucks failed to perform.
Specifically, the wheel rims cracked and the studs holding the rims
malfunctioned.
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Hawkeye initially believed Bruening was overloading the trucks. Bruening
dispelled this concern by regularly weighing loaded trucks and recording lower
than 74,000 pound weights. Bruening representatives testified they never
exceeded the 74,000 pound GVWR in transporting rocks.
Hawkeye also suggested the breakdowns could have resulted from other
factors. Again, Bruening countered this suggestion with evidence of regular,
routine maintenance on the trucks. The jury was free to credit Bruening’s
evidence. Blume v. Auer, 576 N.W.2d 122, 125-26 (Iowa Ct. App. 1997). Based
on this circumstantial evidence, a juror reasonably could have found the GVWR
was not as represented and Hawkeye breached this term of the contract. See
Iowa R. App. P. 6.904(3)(p) (stating direct and circumstantial evidence are
equally probative).
We are left with Bruening’s proof of damages. In its cross-appeal,
Hawkeye contends Bruening’s evidence of lost profits was speculative. The jury
reasonably could have found otherwise. See Field v. Palmer, 592 N.W.2d 347,
353 (Iowa 1999) (stating “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” (citing
Sun Valley Lake Ass’n v. Anderson, 551 N.W.2d 621, 641 (Iowa 1996))); Harsha
v. State Sav. Bank, 346 N.W.2d 791, 798 (Iowa 1984) (upholding “generous” jury
verdict for breach of contract, which was “within the evidence”).
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Bruening provided the court with extensive documentation and testimony
concerning the amount of damages.2 Bruening’s chief financial officer discussed
the documents and testified to Bruening’s damages. This amounted to
substantial evidence in support of the damage award.
III. Cross-Appeal Issues
On cross-appeal, Hawkeye contends the district court erred in rejecting
several remaining grounds in support of its motion for directed verdict. We have
considered the grounds and have either addressed them in connection with our
discussion above or discern no error in the district court’s conclusions and affirm
without further discussion.
IV. Disposition
Because the jury verdict was supported by substantial evidence, we
reverse the grant of Hawkeye’s motion for directed verdict and remand for
reinstatement of the verdict. We affirm on all issues raised in the cross-appeal.

Outcome: REVERSED AND REMANDED ON APPEAL; AFFIRMED ON CROSS-APPEAL.

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