                    IN THE COURT OF APPEALS OF IOWA

                                    No. 15-1501
                              Filed October 26, 2016


POLAR INSULATION, INC.,

      Plaintiff-Appellant,

vs.

GARLING CONSTRUCTION, INC. and DOUGLAS DEMEULENAERE,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Benton County, Patrick R. Grady

and Paul D. Miller, Judges.



      A subcontractor appeals the grants of summary judgment on its claims

against a general contractor and the denial of its motion for new trial.

AFFIRMED.



      Peter C. Riley of Tom Riley Law Firm, P.L.C., Cedar Rapids, for appellant.

      Robert H. Hatala, Roger W. Stone, and Graham R. Carl of Simmons

Perrine Moyer Bergman P.L.C., Cedar Rapids, for appellees.



      Heard by Vogel, P.J., and Tabor and Mullins, JJ.
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VOGEL, Presiding Judge.

       Polar Insulation, Inc. appeals the district court’s grants of Garling

Construction, Inc.’s motions for summary judgment, asserting there were material

facts in dispute. Additionally, Polar claims the district court abused its discretion

in denying its motion for new trial because the jury’s verdict was neither

supported by sufficient evidence nor did it effectuate substantial justice as

between the parties. We affirm.

       I.     Background Facts and Proceedings

       Polar was a corporation involved in subcontracting framing, drywall, and

insulation work.1   Garling is a corporation involved in a variety of general

contracting work, with Douglas DeMeulenaere as its president.              Between

September 2008 and July 2009, Polar entered into three separate subcontractor

contracts with Garling.    The contracts included work on a theatre and two

different schools and, as relevant here, contained the same terms and

provisions.

       The professional relationship between the parties broke down during the

course of the contracts.     Generally, the parties had disputes regarding the

amount of payments, the timing of payments, the payments Garling made to

suppliers on behalf of Polar, the deductions Garling made from the amounts it

owed Polar under the contracts, the amount of work Polar completed on the

projects, and the safety of the work sites.




1
  Polar was administratively dissolved in 2010 but maintains its corporate existence
under Iowa Code section 490.1421(3) (2009).
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       In August 2010, Polar filed suit and asserted claims of breach of contract

against Garling, as well as claims of intentional interference with a contractual

relationship and fraudulent misrepresentation against Garling and DeMeulenaere

individually.    Polar sought consequential damages, punitive damages, and

attorney fees. In July 2012, the district court granted Garling and DeMeulenaere

summary judgment on Polar’s claims for intentional interference with a

contractual relationship, fraudulent misrepresentation, punitive damages, and

attorney fees.

       Regarding the claims against DeMeulenaere individually, the court stated:

“[Polar] has relied on mere allegations to support its assertion that Mr.

DeMeulenaere engaged in tortious conduct, and has not pointed to any specific

evidentiary fact in the record to support said assertion.”           Regarding the

intentional-interference-with-a-contractual-relationship       and        fraudulent-

misrepresentation claims against Garling, the court found no specific evidence

that Garling improperly interfered with a contract Polar was a party to, nor any

evidence Garling “made a false representation or acted with an intent to

deceive.”       Additionally, the court found no evidence to support punitive

damages—that Garling or DeMeulenaere acted with willful or wanton disregard

of Polar’s rights or committed an intentional tort. Finally, the court found Polar

had not pled a claim which supported an award of attorney fees. However, it

partially ruled in favor of Polar, allowing its breach-of-contract claim to remain for

trial on the merits.

       In April 2015, the district court, in granting Garling’s second motion for

summary judgment, found Polar had contractually waived its right to
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consequential damages. Polar proceeded to trial on its only remaining claim:

breach of contract against Garling. After a trial, a jury found in favor of Garling.

Polar filed a motion for new trial, which asserted the verdict was not supported by

sufficient evidence and the verdict did not effectuate substantial justice. The

district court disagreed and denied Polar’s motion. Polar appeals.

       II.    Standard of Review

       We review rulings on motions for summary judgment for correction of

errors at law. Estate of Harris v. Papa John’s Pizza, 679 N.W.2d 673, 677 (Iowa

2004). Summary judgment must be granted when “there is no genuine issue as

to any material fact and . . . the moving party is entitled to a judgment as a matter

of law.” Iowa R. Civ. P. 1.981(3). “In determining whether this standard has

been met, the record must be viewed in the light most favorable to the

nonmoving party.” Travelers Indem. Co. v. D.J. Franzen, Inc., 792 N.W.2d 242,

246 (Iowa 2010).

       “We review the denial of a motion for new trial based on the grounds

asserted in the motion.” Fry v. Blauvelt, 818 N.W.2d 123, 128 (Iowa 2012).

Polar’s motion is based on the sufficiency of the evidence and whether the

verdict effectuated substantial justice.       We review sufficiency-of-the-evidence

claims for correction of errors at law. Estate of Hagedorn ex rel. Hagedorn v.

Peterson, 690 N.W.2d 84, 87 (Iowa 2004). “Evidence is substantial or sufficient

when a reasonable mind would accept it as adequate to reach the same

findings.” PEB Practice Sales, Inc. v. Wright, 473 N.W.2d 624, 626 (Iowa Ct.

App. 1991). We review rulings on a motion for a new trial based on whether the
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verdict effectuated substantial justice for abuse of discretion.     Hagedorn, 690

N.W.2d at 87–88.

       III.   Intentional Interference with a Contractual Relationship

       Polar claims the district court erred in granting summary judgment on its

intentional-interference-with-a-contractual-relationship    claim     against     both

DeMeulenaere and Garling.          Polar argues this was accomplished when

DeMeulenaere personally contacted various suppliers and made promises to pay

them directly. DeMeulenaere and Garling assert Polar failed to present facts that

showed either party acted improperly.

              The elements of the tort of intentional interference with an
       existing contract are: “(1) plaintiff had a contract with a third-party;
       (2) defendant knew of the contract; (3) defendant intentionally and
       improperly interfered with the contract; (4) the interference caused
       the third-party not to perform, or made performance more
       burdensome or expensive; and (5) damage to the plaintiff resulted.”

Green v. Racing Ass’n of Cent. Iowa, 713 N.W.2d 234, 244 (Iowa 2006) (quoting

Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 399 (Iowa 2001)). As to Polar’s

claim against DeMeulenaere individually, the district court focused on the third

element and found “no evidence in the summary judgment record to support the

allegation that Mr. DeMeulenaere improperly interfered with a contract to which

Plaintiff was a party.”

       Upon our review of the record, we agree with the district court’s finding.

“[C]onduct is generally not improper if it was merely a consequence of actions

taken for a purpose other than to interfere with a contract.” Id. “[A] party does

not improperly interfere with another’s contract by exercising its own legal rights

in protection of its own financial interests.” Berger v. Cas’ Feed Store, Inc., 543
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N.W.2d 597, 599 (Iowa 1996) (citing Wilkin Elevator v. Bennett State Bank, 522

N.W.2d 57, 62 (Iowa 1994)). It is undisputed that Polar was late or unable to pay

some of its material suppliers and subcontractors. This led to some of Polar’s

suppliers and subcontractors contacting DeMeulenaere directly.               Further

nonpayment by Polar left Garling subject to claims under chapter 573 of the Iowa

Code.     See Iowa Code § 573.2 (providing remedies for disputes regarding

construction of public improvements). DeMeulenaere stated in his affidavit he

contacted Polar’s suppliers to try and avoid potential claims against Garling, and

Polar provided no facts to dispute this claim. We agree with the district court

there were no facts in the summary judgment record of DeMeulenaere’s

intentional interference with Polar’s contractual relationships.       Therefore, we

affirm the district court’s grant of summary judgment on this issue.

        Similar to its analysis regarding Polar’s claim against DeMeulenaere

individually, the district court also found Polar failed to provide facts showing

Garling improperly interfered with any of Polar’s contractual relationships. Based

on the complete lack of evidentiary facts within the summary judgment record,

we agree. We further agree with Garling’s assertion that this claim can be boiled

down to a breach-of-contract claim but reveals no evidence of tortious activity or

damages to Polar. Therefore, we also affirm the district court’s grant of summary

judgment on Polar’s claim of intentional interference with a contractual

relationship against Garling.

        IV.   Fraudulent Misrepresentation

        Polar next claims the district court erred in granting summary judgment on

its fraudulent-misrepresentation claim against both DeMeulenaere and Garling.
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Polar argues DeMeulenaere and Garling fraudulently misrepresented payment

and   deduction    amounts    when    calculating   payments     owed    to   Polar.

DeMeulenaere and Garling respond by asserting Polar failed to present facts that

showed either intended to deceive.

       “To establish a claim for fraudulent misrepresentation, [the plaintiff] has

the burden of proving each of the following elements: ‘(1) representation, (2)

falsity, (3) materiality, (4) scienter, (5) intent to deceive, (6) reliance, and (7)

resulting injury and damage.’” Van Sickle Constr. Co. v. Wachovia Commercial

Mortg., Inc., 783 N.W.2d 684, 687 (Iowa 2010) (quoting Lloyd v. Drake Univ., 686

N.W.2d 225, 233 (Iowa 2004)). To show intent to deceive, Polar must show

DeMeulenaere and Garling knowingly made false representations with the intent

to deceive Polar. See id. The district court found no evidence to support these

claims.

       We agree with the district court the summary judgment record does not

reveal any facts that indicate either DeMeulenaere or Garling acted with the

intent to deceive Polar. Polar had access to all the invoices and was able to

review and dispute them. Polar’s claim for fraudulent misrepresentation is largely

an extension of its breach-of-contract claim in that Polar claims DeMeulenaere

and Garling intended to deceive by not paying, and Polar disputes some of the

deductions. Failure to fulfill obligations under a contract does not necessarily

support a claim for fraudulent misrepresentation. See id. at 688. Therefore,

lacking in evidence to support Polar’s assertions, we affirm the district court’s

grant of summary judgment on Polar’s claim of fraudulent misrepresentation

against DeMeulenaere and Garling.
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       V.     Punitive Damages

       Polar also claims the district court erred in granting summary judgment on

its punitive damages claim against both DeMeulenaere and Garling.              Polar

argues DeMeulenaere and Garling committed tortious acts with willful and

wanton disregard of its rights. DeMeulenaere and Garling assert Polar failed to

present facts that showed either engaged in conduct that would support an

award of punitive damages.

       Punitive damages are not available unless a party can prove “conduct

[that] amounted to a willful and wanton disregard for the rights of another.”

Hockenberg Equip. Co. v. Hockenberg’s Equip. & Supply Co. of Des Moines,

Inc., 510 N.W.2d 153, 156 (Iowa 1993). Further, a breach of contract does not

form the basis for punitive damages unless the breach constitutes an intentional

tort, committed maliciously. Id. After granting summary judgment against Polar

on its tort claims, the district court determined there were no disputed facts in the

record that would support an award of punitive damages. Having determined the

district court’s grants of summary judgment should be affirmed, we agree there

were no disputed facts in the record that would support a finding that the alleged

breach of contract constituted an intentional tort, committed maliciously.

Therefore, we affirm the court’s grant of summary judgment on Polar’s punitive-

damages claim.

       VI.    Attorney Fees

       Polar claims the district court erred in granting summary judgment on its

attorney-fees claim because it filed a claim under chapter 573. Because Polar is

not the prevailing party and has not “established a claim,” its claim for attorney
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fees inherently fails. See Iowa Code § 573.21 (“The court may tax, as costs, a

reasonable attorney fee in favor of any claimant for labor or materials who has, in

whole or in part, established a claim.”).

       VII.   Consequential Damages

       Polar’s final argument as to the summary judgment rulings involves its

consequential damages claim against Garling. Polar argues the contracts did not

prevent consequential damages and that it did not waive its claim to

consequential damages. Garling asserts Polar waived its right to consequential

damages under the subcontractor contracts.

       Section 14.2 of the subcontractor agreements provided, in part,

       In any event Subcontractor shall not be entitled under this
       Subcontract or otherwise, and hereby waives any claims for lost
       profits or consequential damages. Subcontractor’s remedies are
       limited to those expressly provided for in this Agreement.
       Limitations of liability and waivers established herein for the benefit
       of Owner, Contractor, their respective officers, directors and
       employees shall be effective regardless of negligence, strict liability
       or negligence of such parties.

The district court determined that this section was clear and Polar had not offered

any reason the section should fail.         Accordingly, the court determined Polar

waived its right to consequential damages and granted summary judgment in

favor of Garling.

       The Iowa Supreme Court has implicitly endorsed contractual limitations on

consequential damages in the sales context. See Shinrone, Inc. v. Tasco, Inc.,

283 N.W.2d 280, 285 (Iowa 1979) (“Any seller who does not wish to take the risk

of consequential damages has available the section on contractual limitation of

remedy.” (citation omitted)). We see no reason the same limitation would not be
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available here. Section 14.2 was clear, and we agree Polar waived its right to

consequential damages.        Therefore, we affirm the district court’s grant of

summary judgment on Polar’s consequential damages claim.

       VIII.   Motion for New Trial

       The only issue left for the jury to decide was Polar’s breach-of-contract

claim against Garling. When the jury found for Garling, Polar sought a new trial,

which the district court denied.      Polar contends the district court abused its

discretion in denying its motion and asserts the jury’s verdict is not supported by

sufficient evidence and is “radically inconsistent with the undisputed evidence at

trial.” Garling asserts Polar simply disagreed with the jury’s findings and sought

to have the district court adopt its version of the facts.

       From the trial record, the jury could have concluded Garling did not breach

its contracts with Polar. Trial occurred over the course of five days and included

the introduction of scores of exhibits by both parties.      The jury could have

reasonably based its conclusion on the numerous factual and credibility

determinations it was required to make, including: its evaluation of the dozens of

invoices and receipts presented by both sides, its determination of the amount

owed and paid by Garling, its determination of the timeline of potential breaches

by both parties, its credibility determination regarding the dispute over paying

suppliers, its evaluation of the work completed, and its evaluation of the terms of

the contracts.   Simply put, the jury could have believed Garling’s version of

events and figures. While a different result could have been reached, the jury

chose to find for Garling.     Taken together, we conclude there was sufficient

evidence in the record to support the jury’s verdict, and the court did not abuse
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its discretion in determining the verdict effectuated substantial justice, thereby

denying Polar’s motion for a new trial. See Hagedorn, 690 N.W.2d at 87–88;

Cowan v. Flannery, 461 N.W.2d 155, 157 (Iowa 1990) (“Ordinarily the jury should

be allowed to settle disputed fact questions.”).

       IX.    Conclusion

       Because we agree Garling and DeMeulenaere were entitled to summary

judgment on Polar’s claims for intentional interference with a contractual

relationship, fraudulent misrepresentation, punitive damages, and attorney fees,

and because we agree Garling was entitled to summary judgment on Polar’s

claim for consequential damages, we affirm the district court’s grants of summary

judgment. Because we agree there was sufficient evidence to support the jury’s

verdict and the district court did not abuse its discretion, we affirm the district

court’s denial of Polar’s motion for new trial.

       AFFIRMED.
