                      IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0923
                                Filed July 6, 2017


CITY OF RIVERSIDE,
      Plaintiff-Appellant,

vs.

METRO PAVERS, INC. and DELONG CONSTRUCTION, INC.,
     Defendants-Appellees.
________________________________________________________________


       Appeal from the Iowa District Court for Washington County, Annette J.

Scieszinski, Judge.



       The City of Riverside appeals the district court’s ruling granting summary

judgment in favor of Metro Pavers, Inc. and DeLong Construction, Inc.

AFFIRMED.




       Eric D. Tindal of Nidey Erdahl Tindal & Fisher, Marengo, for appellant.

       Kristen H. Frey and Lanny M. Van Daele of Kennedy, Cruise, Frey &

Gelner, L.L.P., Iowa City, for appellee Metro Pavers.

       Michael J. Moreland and Nicholas T. Maxwell of Harrison, Moreland,

Webber & Simplot, P.C., Ottumwa, for appellee DeLong.



       Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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DANILSON, Chief Judge.

       The City of Riverside (Riverside) appeals the district court’s ruling granting

summary judgment in favor of Metro Pavers, Inc. (Metro Pavers) and DeLong

Construction, Inc. (DeLong). Riverside contends the matter should be viewed as

a discovery dispute and the district court erred in failing to consider the available

range of sanctions. On our review of the record, we find the district court did not

err in granting summary judgment and therefore affirm.

       I. Background Facts and Proceedings.

       Riverside filed the petition in this matter on February 3, 2015, alleging

Metro Pavers breached the parties’ contract by improperly constructing a street,

Commercial Drive, causing cracking of the surface of the street. Metro Pavers

filed a third-party petition against its subcontractor, DeLong. This lawsuit is the

second lawsuit filed by Riverside with respect to this dispute.            Riverside

previously filed a petition against Metro Pavers in 2012 raising the same claims,

but the case was dismissed for want of prosecution after Riverside failed to

timely disclose an expert witness or the amount of damages sought. Riverside

subsequently filed the petition in this case.

       In order to meet its burden of proof in this case, Riverside was required to

present evidence establishing Metro Pavers’ and DeLong’s noncompliance with

the design specifications called for by the contract.        All the parties agree

Riverside could not meet its burden of proof and establish damages in this case

without expert testimony.     The parties’ discovery plan required Riverside to

designate all expert witnesses by January 18, 2016, prior to the August 16, 2016

trial date.   This deadline was intended to allow time for the subsequent
                                        3


designation of expert witnesses by Metro Pavers and DeLong prior to trial.

However, Riverside made no initial disclosures as required by Iowa Rule of Civil

Procedure 1.500 and did not designate any expert witnesses by the January 18

deadline.

      DeLong filed a motion for summary judgment on March 25, 2016,

requesting the district court grant summary judgment because Riverside could

not prevail on its cause of action without an expert witness.1 Riverside filed an

untimely resistance to the motion for summary judgment on April 21, 2016, one

day prior to the summary-judgment hearing.        Riverside attached an expert-

witness affidavit to the resistance.   The district court granted the motion for

summary judgment in a ruling entered April 26, 2016. The court held:

      [Riverside] made no initial disclosures as required by Iowa Rule of
      Civil Procedure 1.500, and as implemented through the discovery
      plan, until a filing was made on the eve of hearing.
              Moreover, [Riverside] did not designate any expert witness
      by the January 18, 2016 deadline (factored as 210 days before the
      August 16, 2016 trial date). In this case, [Riverside] must provide
      expert testimony to carry its burden to prove causation for the
      cracked street concrete which is the subject of this suit. Also,
      [Riverside] is unable to prove the nature and extent of the damages
      it claims—without an expert witness. In sum, [Riverside]’s non-
      participation in case preparation leaves it without [the] ability to
      support its case in chief on the breach-of-contract claims
      asserted . . . .
              [Riverside]’s failure to prosecute this case in any manner
      before filing a resistance to the motion for summary judgment on
      the eve of hearing, frames a scenario where the other parties
      cannot be treated fairly. Trial looms on a[n] August 16th jury
      assignment. If [Riverside]’s tardy designation of an expert were to
      be permitted, the trial date would necessarily have to be postponed
      to accord the party defendants fair opportunity to conduct discovery
      and declare their own experts. Justice is not served by that delay,
      particularly in consideration of the past practice of [Riverside] in

1
 Metro Pavers filed a joinder in DeLong’s motion for summary judgment on April 12,
2016.
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         failing to prosecute a prior action based upon the same cracked
         concrete! No legal justification is shown to excuse [Riverside]’s
         conduct in this case.
                 ....
                 . . . When considering the pleading record in a light most
         favorable to . . . Riverside, judgment of dismissal is appropriate.
         [Riverside] stands unable at this point in time to sustain its burden
         of proof under the prevailing law of this case, and supporting Iowa
         law. There is no basis in fact or in law to make an exception to the
         clear rules which require a plaintiff to prosecute its cause of action
         in a timely manner.

         Riverside now appeals.

         II. Standard of Review.

         Our review of the district court’s summary judgment ruling is for correction

of errors at law. Stevens v. Iowa Newspapers, Inc., 728 N.W.2d 823, 827 (Iowa

2007).      “Summary judgment is appropriate only when the entire record

demonstrates that no genuine issue of material fact exists and the moving party

is entitled to judgment as a matter of law. We review the evidence in the light

most favorable to the nonmoving party.” Id. (citations omitted).

         III. Analysis.

         Iowa Rule of Civil Procedure 1.500(1) provides:

         [A] party must, without awaiting a discovery request, provide to the
         other parties:
                (1) The name and, if known, the address, telephone
         numbers, and electronic mail address of each individual likely to
         have discoverable information, along with the subjects of that
         information, that the disclosing party may use to support its claims
         or defenses, . . . .

         The rules additionally provide:

         If a party fails to provide information or identify a witness as
         required by rule 1.500, 1.503(4), or 1.508(3), the party is not
         allowed to use that information or witness to supply evidence on a
         motion, at a hearing, or at trial, unless the failure was substantially
         justified or is harmless.
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Iowa R. Civ. P. 1.517(3)(a).        Rule 1.517(3)(a) allows the court to impose

alternative sanctions “[i]n addition to or instead of this sanction . . . after giving an

opportunity to be heard.”

       After giving Riverside an opportunity to be heard at the hearing on the

motion for summary judgment, the district court determined Riverside could not

present expert testimony because the only expert-witness disclosure by

Riverside occurred just one day prior to the hearing and well past the deadline for

such disclosure as required by the discovery plan and rule 1.500. The court

determined allowing late designation of Riverside’s expert witness would require

a continuance of the trial date and would not serve justice because the

defendants would be prejudiced, and Riverside could not provide a justifiable

excuse for the delay. The court acknowledged that without expert testimony

Riverside could not establish causation for the cracked concrete or damages.

Therefore, because Riverside’s inability to provide expert testimony was fatal to

its cause of action as a matter of law, the district court granted the motion for

summary judgment.

       We agree with the court’s ruling.         The record demonstrates Riverside

cannot sustain its cause of action as a matter of law. Without expert testimony,

its cause of action necessarily fails.         We have previously upheld a similar

determination. See Karnes v. Keffer Overton Assocs. Inc., No. 00-0191, 2001

WL 1443512, at *2 (Iowa Ct. App. Nov. 16, 2001) (“We agree with the district

court that an expert was necessary in this case and that failure to designate one

was appropriate grounds for summary judgment in favor of the defendants.”).
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       Riverside did not take any meaningful steps to prosecute this second

cause of action against the defendants. It did not make initial disclosures, did not

designate an expert witness within the ample time provided by the discovery

plan, and did not request an extension of either deadline. Riverside did not even

file its resistance to the motion for summary judgment in a timely manner—and

only then did Riverside disclose its expert witness in an attached affidavit.

       Riverside did not provide a substantially-justified explanation for its failure

to comply with the discovery deadlines and prosecute this matter. At the hearing

on the motion for summary judgment, counsel for Riverside explained he

believed he had already filed the expert designation.         However, counsel for

Riverside certainly learned that such designation was not filed by DeLong’s

motion for summary judgment and still did not attempt to provide any expert

designation until one day prior to the summary-judgment hearing. This failure is

especially egregious considering Riverside’s first cause of action arising from this

dispute was dismissed for the exact same reason.

       We conclude the district court did not err in refusing to consider

Riverside’s late-filed expert-witness affidavit and granting summary judgment on

the basis Riverside’s claim fails as a matter of law without expert testimony.

       Additionally, even if this issue is viewed as a discovery dispute as

Riverside suggests, the district court did not abuse its discretion. See Keefe v.

Bernard, 774 N.W.2d 663, 667 (Iowa 2009) (stating our standard of review of a

district court’s discovery ruling is for abuse of discretion). Riverside asserts the

court abused its discretion because it failed to consider alternative sanctions for

Riverside’s failure to comply with the discovery plan and rule 1.500. However,
                                        7


the district court’s summary-judgment ruling clearly reflects the court considered

Riverside’s request for a continuance and determined that alternative would be

improper in this case. In compliance with rule 1.517(3)(a), the court provided

Riverside an opportunity to be heard and determined it would be inappropriate

based on these facts to allow Riverside’s late expert-witness designation. Where

Riverside repeatedly failed to meet necessary discovery deadlines and to take

meaningful steps to pursue this case, we cannot find the district court’s ruling

constituted an abuse of discretion.

      We conclude the district court did not err in granting summary judgment in

favor of DeLong and Metro Pavers.

      AFFIRMED.
