                   IN THE COURT OF APPEALS OF IOWA

                                  No. 19-1163
                              Filed April 15, 2020


ROCKETTE TRUCKING AND CONSTRUCTION, LTD.,
    Plaintiff-Appellee,

vs.

RUNDE AUTO GROUP OF IOWA, INC.,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Delaware County, Monica Zrinyi-

Wittig, Judge.



       Appellant appeals from a bench trial finding it liable for damages.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.



       D. Flint Drake and Samuel M. Degree of Drake Law Firm, P.C., Dubuque,

for appellant.

       Christopher M. Soppe and Cory R. Thein of Pioneer Law Office, Dubuque,

for appellee.



       Considered by Bower, C.J., and Greer and Ahlers, JJ.
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AHLERS, Judge.

       A construction company, Rockette Trucking and Construction, Ltd.

(Rockette Construction), took one of its trucks to the service department of a car

dealership, Runde Auto Group of Iowa, Inc. (Runde Auto), for repairs. Runde Auto

failed to replace the engine oil in the repaired vehicle before taking it on a test

drive, resulting in the engine being damaged beyond repair. Rockette Construction

sought damages for replacing the ruined engine and for loss of use of the truck

while awaiting the replacement engine. Following a bench trial, the district court

awarded damages to Rockette Construction. Runde Auto appeals, raising issues

regarding claimed disclosure and discovery abuses by Rockette Construction and

insufficient evidence of loss-of-use damages.

I.     Sanctions for Discovery Violations

       During the course of this lawsuit, mandatory disclosure requirements and

Runde Auto’s discovery requests obligated Rockette Construction to provide

information regarding the identity of witnesses, the identity of expert witnesses,

details of any expert’s expected testimony, and information regarding loss-of-use

damages. Runde Auto felt that the disclosures and discovery responses provided

by Rockette Construction were inadequate. Rather than filing a motion to compel

more complete answers, Runde Auto filed a motion in limine two weeks before trial

seeking to exclude the following evidence: (1) all witnesses not disclosed prior to

Rockette Construction’s filing of its exhibit and witness list1; (2) all exhibits not



1 Rockette Construction filed an exhibit and witness list thirty-seven days prior to
trial disclosing proposed exhibits and witnesses, some of which Runde Auto
claimed had not been previously disclosed.
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disclosed prior to Rockette Construction’s filing of its exhibit and witness list; (3) all

expert witness testimony from individuals not designated as experts in pretrial

disclosures and discovery responses; and (4) all evidence of calculation of loss-

of-use damages, specifically “mobilization expenses” claimed as damages by

Rockette Construction.

       The district court addressed the motion in limine on the morning of trial.

While not specifically concluding Rockette Construction violated disclosure or

discovery obligations, the district court impliedly acknowledged Runde Auto’s

claim of discovery violations when the district court informed Runde Auto’s counsel

that a continuance would be granted if Runde Auto felt it needed more time to

prepare for trial in light of the late disclosures by Rockette Construction. Runde

Auto declined the offer of a continuance, insisting on proceeding to trial and urging

the district court to exclude evidence as requested. The district court deferred to

Runde Auto’s insistence upon proceeding to trial but declined to exclude evidence

as requested. Runde Auto claims the district court erred in not excluding evidence

as a sanction for discovery violations.

       A.     Standard of Review

       Rulings on sanctions for discovery violations are reviewed for an abuse of

discretion. Lawson v. Kurtzhals, 792 N.W.2d 251, 258 (Iowa 2010).

       B.     Discussion

       Our rules of civil procedure impose obligations on parties to disclose various

details about their case as part of mandatory disclosures pursuant to rule 1.500

and/or in response to discovery requests as referenced in rule 1.501. These

obligations include the duty to supplement disclosures and discovery responses.
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Iowa R. Civ. P. 1.503(4). If a party fails to fulfill its obligations for disclosure or

responding to discovery requests, rule 1.517(1) sets forth a procedure for

compelling adequate disclosures and discovery responses. If an order issued

pursuant to rule 1.517(1) is not followed, rule 1.517(2)(b) provides for imposition

of sanctions against the violating party. Similarly, if a party fails to supplement

mandatory disclosure requirements with respect to experts retained for purposes

of litigation pursuant to rule 1.500(2)(b), rule 1.508(3) provides for sanctions under

rule 1.517(3)(a). The sanctions available under rule 1.517(3)(a) include any of the

sanctions listed in rule 1.517(2)(b). See Iowa R. Civ. P. 1.517(3)(a)(3).          So,

whether the offending party violates mandatory disclosure requirements regarding

experts retained for litigation or an order compelling discovery, the available

sanctions can be the same. Those sanctions available to the district court include

issuing any orders “in regard to the failure as are just,” which includes a variety of

specific sanctions. Although a continuance is not one of the specifically-listed

sanctions, a continuance would be one of the available sanctions as one of the

“orders . . . as are just.” Iowa R. Civ. P. 1.517(2)(b).

       For the purposes of our discussion, we will assume without deciding that all

claimed disclosure and discovery violations asserted by Runde Auto were, in fact,

violations. This is not a difficult assumption to make, as the claimed violations

appear to have merit. The issue is whether the violations deserve the sanction

requested by Runde Auto.

       Generally, noncompliance with discovery is not tolerated.
       Nevertheless, the sanction to result from noncompliance rests with
       the sound discretion of the trial court. While the sanction for the
       failure to supplement discovery can include exclusion of the
                                         5


       evidence at trial, the trial court can also deny a request to exclude
       evidence. The factors used to consider sanctions include:
              1. the parties’ reasons for not providing the challenged
       evidence during discovery;
              2. the importance of the evidence;
              3. the time needed for the other side to prepare to meet the
       evidence; and
              4. the propriety of granting a continuance.
       Thus, in considering sanctions, a continuance can be used as a tool
       to minimize or eliminate prejudice that can be visited on a party when
       discovery is withheld. A continuance can give the complaining party
       an opportunity to overcome the surprise and prepare an effective
       response to the new evidence. Generally, a continuance is
       considered to be the traditionally appropriate remedy for a claim of
       surprise at trial.

Whitley v. C.R. Pharmacy Serv., Inc., 816 N.W.2d 378, 388–89 (Iowa 2012)

(citations and internal quotations omitted).

       In this case, the claimed disclosure and discovery violations were known to

Runde Auto at least thirty-seven days before trial when Rockette Construction filed

its exhibit and witness list. While we do not condone such late disclosure, we note

Runde Auto chose not to file a motion to compel pursuant to rule of civil procedure

1.517 and, instead, waited twenty-three days (i.e., until fourteen days before trial)

to address the issue by filing a motion in limine essentially seeking the sanction of

excluding witnesses and evidence. If Runde Auto was as surprised as it now

claims, it would seem Runde Auto would have taken quicker and more direct action

by filing a motion to compel pursuant to rule 1.517 very soon after the late

disclosure was made, rather than waiting until fourteen days before trial to raise

the issue and then demanding the very harsh remedy of exclusion of witnesses

and evidence. Under these circumstances, the district court sought to minimize

any prejudice caused by any claimed surprise to Runde Auto by offering a

continuance. Runde Auto firmly declined to accept the offer of a continuance,
                                           6


instead insisting on the sanction of exclusion of witnesses and evidence. While

we respect Runde Auto’s desire to avoid another continuance,2 Runde Auto’s

refusal of the offered continuance somewhat undermines the strength of its claim

that it was unfairly surprised. If, in fact, it was unfairly surprised by the late

disclosure, one would have expected it to jump at the opportunity for a continuance

once it realized that its desired sanction was not going to be granted. Its failure to

do so, coupled with its delays in raising the issue, lends some credence to the

suggestion that the request to exclude witnesses and evidence was being used as

a tactical tool rather than as a method of avoiding harm. See Hantsbarger v. Coffin,

501 N.W.2d 501, 505–06 (Iowa 1993) (holding it is appropriate to consider an

aggrieved party’s lack of action in deciding whether to impose sanctions for failure

to comply with disclosure requirements). Regardless of the reasons for the delay

in bringing the issue to the attention of the district court, the district court did not

abuse its discretion in refusing to exclude witnesses or evidence under these

circumstances.

II.    Sufficiency of Evidence of Loss-of-Use Damages

       The truck at issue in this case is referred to as a “service truck” by Rockette

Construction because it carries an air compressor, welder, and other tools to utilize

in servicing other equipment. The service truck is an important part of Rockette

Construction’s operations because it helps the company avoid the cost of hiring

third parties to come to the work site to repair equipment or transporting heavy

equipment back to Rockette Construction’s home base for repairs or maintenance.


2 The trial had been continued on a previous occasion due to untimely discovery
responses by Rockette Construction.
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After the service truck’s engine was damaged beyond repair by Runde Auto driving

the truck without engine oil in it,3 the service truck was unusable for a period of

time while a new engine was ordered and installed. At trial, Rockette Construction

claimed damages for replacement of the damaged engine and damages incurred

for loss of use of the service truck while awaiting installation of a replacement

engine. The district court noted the claim for both categories of damages and

awarded damages in the amount of $84,414.73. In setting the damage award, the

district court did not specify how much of the award was for replacement of the

engine and how much was for loss of use, and the district court did not make any

factual findings as to how the damage award was calculated. Although the district

court did not provide a breakdown of the damage calculations, it is clear the district

court awarded some amount for loss-of-use damages because the highest

damage amount for replacement of the engine supported by the evidence is

$19,399.73. On appeal, Runde Auto does not challenge the award of engine-

replacement damages, but does challenge the sufficiency of the evidence

supporting the award of loss-of-use damages.

       A.     Standard of Review

       “When reviewing the judgment of a district court in a nonjury law case, our

review is for correction of errors at law.” Bus. Consulting Servs., Inc. v. Wicks, 703

N.W.2d 427, 429 (Iowa 2005). “The trial court’s findings have the effect of a special



3 Liability for damages was contested at trial. The district court ruled in favor of
Rockette Construction on the issue of liability, finding the engine was damaged
beyond repair because Runde Auto failed to replace the engine oil before driving
the vehicle, which resulted in the engine “seizing.” Runde Auto does not challenge
the finding of liability on appeal.
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verdict and are binding if supported by substantial evidence.” Id. “Evidence is

substantial when a reasonable mind would accept it as adequate to reach a

conclusion.” Id.

      B.     Discussion

      Our review of the sufficiency of the evidence in this case is hampered by

the district court’s failure to specify how the damage award was calculated and

how much of the damage award was for engine replacement and how much was

for loss-of-use damages. Nevertheless, we will endeavor to determine whether

there is sufficient evidence to support a finding of loss-of-use damages within the

range of possible awards for that category of damages.

      In assessing the sufficiency of the evidence of loss-of-use damages, we are

guided by a number of principles. “There is a distinction between proof of the fact

that damages have been sustained and proof of the amount of those damages.”

Olson v. Nieman’s, Ltd., 579 N.W.2d 299, 309 (Iowa 1998). “Damages are denied

where the evidence is speculative and uncertain whether damages have been

sustained.” Id. “But, ‘[if] the uncertainty lies only in the amount of damages,

recovery may be had if there is proof of a reasonable basis from which the amount

can be inferred or approximated.’” Id. (quoting Orkin Exterminating Co. v. Burnett,

460 N.W.2d 427, 430 (Iowa 1968)). “Although proof of damages need not be

shown with mathematical certainty, plaintiff must at least present sufficient

evidence to allow the factfinder to make an approximate estimate of the loss.” Data

Documents, Inc. v. Pottawattamie Cty., 604 N.W.2d 611, 616–17 (Iowa 2000).

      In this case, there is little question that Rockette Construction suffered some

form of loss-of-use damage, and it is not difficult to conceptualize the nature of
                                         9


those damages. Due to the unavailability of the service truck while the engine was

being replaced, Rockette Construction had to make other arrangements to repair

and maintain its equipment. Where things get murky is the manner in which

Rockette Construction attempted to prove those damages. Presumably, the loss

of the use of the service truck necessitated hauling various types of equipment

various distances for repairs or maintenance or the hiring of third parties to come

to the job sites to perform repair and maintenance work. However, Rockette

Construction did not present much, if any, evidence of such details. Instead, it

presented evidence of “mobilization charges” for each job that took place while the

service truck was out of commission and asked the district court to use the

mobilization charges as the calculation of the loss-of-use damages.

       The evidence presented shows the mobilization charges were the charges

Rockette Construction charged its customers to undertake each construction job.

The mobilization charge billed to the customer was calculated to take into account

the estimated cost of moving all equipment for the job, the cost of fuel, the cost of

wages, the cost of insurance, the cost of repairs, and the cost of the machinery

payments. The fact the mobilization charge is an estimate is corroborated by the

fact that the mobilization charge for each job is a round number.4

       The problem with this method of claiming loss-of-use damages is the

mobilization charges bear little, if any, connection to the damages actually suffered

by Rockette Construction. There is no evidence that all equipment had to be taken



4 Rockette Construction sought $66,000.00 of loss-of-use damages based on
mobilization charges billed to customers for eight jobs of $8000.00, $9000.00,
$5000.00, $9000.00, $9000.00, $8000.00, $8000.00, and $10,000.00.
                                         10


to and from each job site for all eight jobs at issue, even though the mobilization

charges calculated by Rockette Construction factored in the cost of moving all

equipment. Without such evidence, there is no basis for including the cost of

moving all equipment, which is imbedded in the mobilization charge figure

presented, as an item of damage.         There is also no evidence the costs of

insurance, repairs, or machinery payments changed in any way by the need to

haul any equipment or bring in third-party service providers while the service truck

was down. Without such evidence, there is no basis for including these parts of

the mobilization charge as an item of damage. These deficiencies highlight the

fact that the “mobilization charges” claimed as damages bear no meaningful

relationship to the damages actually suffered by Rockette Construction.

       Perhaps more important than the aforementioned deficiencies in using

claimed mobilization charges as the basis for calculating loss-of-use damages is

the fact that this is not a case where damages could not be determined with

preciseness or certainty. See Olson, 579 N.W.2d at 309–10 (noting that using

estimates of damages is appropriate in cases in which there is difficulty in precisely

measuring damages, such as a trade-secret case).            The injury suffered by

Rockette Construction was, for example, the cost incurred to haul specific pieces

of equipment a finite number of miles a finite number of times, the cost of paying

a finite number of employees a finite amount of wages to haul the equipment,

and/or the cost of paying for third-party service providers to come to the site to

conduct repair and maintenance services. These are all things capable of being

proved with reasonable particularity. When damages can be measured precisely,

precise proof must be given. 22 Am. Jur. 2d Damages § 344 (Feb. 2020 update).
                                         11


Our supreme court noted the following in rejecting the award of damages in the

context of a claim alleging faulty installation of equipment:

       These were not matters that were by their nature not susceptible of
       proof. Cost of installation of equipment, cost of replacement of lost
       fluid, cost of replacement of garments to customers, amount of
       damage to other equipment, loss of profits, are all susceptible of, and
       deserving of, proof with reasonable particularity. This was not done,
       nor was any reason why it could not be done offered.

B-W Acceptance Corp. v. Saluri, 139 N.W.2d 399, 405 (Iowa 1966). The same

could be said of the loss-of-use damages in this case. As was the case with the

claimant in Saluri, Rockette Construction in this case gave no reason why it could

not and did not present evidence of proof of its loss-of-use damage with

reasonable particularity instead of resorting to an estimate based on “mobilization

charges” that bear little to no relationship to the loss sustained. Presumably,

Rockette Construction has records or witnesses that could establish, for example,

what equipment was hauled, how far it was hauled, how many times it was hauled,

how much employee time was used in such hauling, what the employee wages

were for the time involved, and the cost incurred for hiring third-party service

providers, if any. Answers to these basic questions would have allowed the loss-

of-use damages to be calculated with reasonable particularity. Yet these questions

were not answered by the evidence presented by Rockette Construction. Its failure

to present such evidence is a shortcoming that was not overcome by its

presentation of the mobilization-charge evidence.          The mobilization-charge

evidence was not sufficient evidence of loss-of-use damages in this case.

       Since the evidence of mobilization charges is the only evidence in the

record that could have been used as a basis for the amount the district court
                                        12


awarded as damages and we have determined the evidence of mobilization

charges to be insufficient evidence of loss-of-use, we find insufficient evidence to

support the district court’s award of loss-of-use damages in this case. With that

said, the evidence established that Runde Auto is liable and Rockette Construction

did suffer damages for the cost of replacing the service truck’s engine.

Determining the cost of replacement is hampered by the fact the district court did

not break down the damage award between cost-of-replacement and loss-of-use

damages. This deficiency in the factual findings would warrant a remand for a new

trial on the cost-of-replacement damages but for the fact the cost-of-replacement

damages was not contested at trial or on appeal. The uncontroverted evidence at

trial established the cost of repair as $19,399.73. Any damages claimed in excess

of this amount were not supported by substantial evidence. Since the evidence

was sufficient to support a damage award of $19,399.73 for cost-of-repair

damages but was insufficient to support any additional damage award, the

judgment should be modified to the amount supported by the evidence. See Miller

v. Rohling, 720 N.W.2d 562, 571-73 (Iowa 2006) (finding it appropriate, following

a bench trial, to remand for entry of judgment for damages supported by the

evidence and eliminating judgment for damages not supported by the evidence).

       We affirm the finding of liability. We reverse the judgment for damages and

remand for entry of a judgment in favor of Rockette Trucking in the amount of

$19,399.73.

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

       Bower, C.J., concurs; Greer, J., concurs specially.
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GREER, Judge (specially concurring).

       I concur in this decision with a caveat. While I agree with the result, the

discovery fiasco merits clarification. The record is devoid of any good cause for

failing to complete the mandatory expert disclosures required under Iowa Rule of

Civil Procedure 1.500(2)(b). The only expert listed on the initial disclosures and in

the interrogatory answers was “Don’s Truck Sales.” No report was provided along

with the disclosures by the expert deadline or in response to the request for

production. Yet, on April 9, 2019, just over a month before the May 16, 2019 trial

date, Rockette Construction disclosed a “letter” dated November 16, 2017,

authored by the owner of Don’s Truck Sales. The letter was not included in the

Rockette Construction’s initial disclosures, filed June 14, 2018. Again no record

exists explaining good cause for this failure. While the standard is abuse of

discretion, with no record exposing the “reasons for not providing the challenged

evidence during discovery,” the evaluation of that discretion is more difficult to

conduct. See Whitley v. C.R. Pharm. Serv., Inc., 816 N.W.2d 378, 388–89 (Iowa

2012) (listing four factors to consider to set sanctions for noncompliance with

discovery). To put it simply, what is the good-cause reason for failing to timely

disclose an expert report written two years before trial?

       As it turned out, the owner and mechanic from Don’s Truck Sales testified

at trial and provided, after objection, substantially more detailed opinions than

disclosed through the minimal interrogatory answers.         I take issue with the

majority’s position that Runde Auto had a duty to compel expert discovery once

the mandatory expert disclosure was not provided. See Hoekstra v. Farm Bureau

Mut. Ins. Co., 382 N.W.2d 100, 109 (Iowa 1986) (finding two-step process to
                                          14


compel expert discovery not mandatory and failure to object to lack of pretrial

preparation does not excuse the opposing party’s duty to supplement discovery).

“Under our rules of civil procedure, parties seeking discovery should normally be

justified in believing they have received substantially all the information requested.”

Whitley, 816 N.W.2d at 388 (noting a party is not precluded from asserting a claim

for sanctions based on the failure to supplement discovery by failing to move to

compel more detailed discovery). I also disagree that a continuance could have

solved this discovery issue because the deadline for expert disclosures expired

without any request to extend that deadline by Rockette Construction. Here, after

failing to answer discovery and providing no good cause for that failure, the trial

court allowed Rockette Construction a first continuance. After the delay from the

first continuance, Rockette made no request to extend expert deadlines but

submitted a 2017 letter offering Don’s Trucking Sales opinions near the 2019 trial

date. It is understandable why Runde Auto did not “jump at the opportunity for a

continuance.” Each continuance brings more litigation cost.

       But, having addressed the parties’ obligations in discovery, I concur in the

decision because even if the non-disclosed expert opinions were excluded from

this record, other testimony supported the trial court’s liability finding. Otherwise I

would have concluded an abuse of discretion occurred for failing to limit the expert

testimony without good cause established for the untimely disclosure.
