                    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.

         AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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).
