                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1372
                            Filed October 12, 2016


CAR WASH CONSULTANTS, INC.,
     Plaintiff-Appellant,

vs.

N/S CORPORATION,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Sean W. McPartland,

Judge.



      Plaintiff appeals from a judgment entered following a jury trial on

consequential damages for breach of implied warranty. AFFIRMED.




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

      Michael McDonough and Graham R. Carl of Simmons, Perrine, Moyer,

Bergman, P.L.C., Cedar Rapids, for appellee.



      Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
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MCDONALD, Judge.

      This matter comes before the court a second time.            The facts and

circumstances giving rise to this litigation are set forth in our prior opinion and

need not be set forth in full herein. See N/S Corp. v. Car Wash Consultants, Inc.,

No. 11-0174, 2012 WL 1439084, at *1 (Iowa Ct. App. Apr. 25, 2012). In sum,

this litigation concerns a car wash manufactured by N/S Corporation and

distributed and installed by Car Wash Consultants, Inc., (hereinafter “CWC”).

CWC installed the car wash in a facility owned by James Martinez. The car wash

suffered from several defects that caused Martinez’s business to suffer. N/S filed

suit against CWC on an open account, and CWC asserted counterclaims,

including a claim for breach of the implied warranty of merchantability. The jury

found for N/S on its open-account claim and for CWC on its implied-warranty

claim. In the prior appeal, we concluded the district court erred in declining to

instruct the jury it could award consequential damages for breach of the implied

warranty. See id. at *13. We remanded this matter for trial on that issue. The

gist of CWC’s claim for consequential damages is it lost the sale of a second car

wash system to Martinez after Martinez’s bad experience with the car wash at

issue. The jury found CWC failed to prove it suffered consequential damages,

and the district court entered judgment accordingly.

                                        I.

      CWC challenges the jury’s verdict, contending the district court erred in

denying its motion for new trial. Our standard of review depends on the grounds

asserted in the motion for new trial. See Olson v. Sumpter, 728 N.W.2d 844, 848

(Iowa 2007). Here, CWC argues the verdict was not supported by substantial
                                         3


evidence and failed to administer substantial justice between the parties. “We

review a district court’s ruling on sufficiency of the evidence for correction of

errors at law.” Crow v. Simpson, 871 N.W.2d 98, 105 (Iowa 2015). We review

the verdict to determine whether it is supported by substantial evidence.

“Evidence is substantial if reasonable minds would accept the evidence as

adequate to reach the same findings. In reviewing whether a verdict is supported

by substantial evidence, we view the evidence in the light most favorable to the

verdict, taking into consideration all reasonable inferences the jury may have

made.” Id. (citations omitted). “We review a district court's denial of a new trial

for failure to administer substantial justice for an abuse of discretion.” Id. “We

will find an abuse of discretion only when a district court has exercised its

discretion ‘on grounds clearly untenable or to an extent clearly unreasonable.”

Id. at 108 (citation omitted).

       We recently set forth the law regarding consequential damages caused by

breach of the implied warranty of merchantability:

      A buyer may recover consequential damages from a breaching
      seller pursuant to Iowa Code section 554.2715. Recoverable
      consequential economic losses include loss of profits resulting from
      failure of the goods to function as warranted, loss of goodwill, loss of
      business reputation, and other loss proximately resulting from a
      defective product beyond direct economic loss.
               The buyer who has accepted goods and then discovers their
      defects must show that the seller had reason to know at the time of
      contracting of the buyer’s possible losses caused by a breach to
      recover consequential damages. The losses must be foreseeable,
      and losses are foreseeable if they follow in the ordinary course of
      events, but also as a result of special circumstances. Iowa courts
      focus on whether the type of damages was foreseeable rather than
      whether the specific injury itself was foreseeable.
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Trs. of the Iowa Laborers Dist. Council Health & Welfare Tr. v. Ankeny Cmty.

Sch. Dist., 865 N.W.2d 270, 276–77 (Iowa Ct. App. 2014) (citations and marks

omitted). Here, the jury instruction regarding consequential damages correctly

set forth the law, and neither party challenges the substance of the instruction.

       To establish its claim for consequential damages, CWC was required to

prove the breach of the implied warranty was a cause of consequential damages.

See NevadaCare, Inc. v. Dep’t of Human Servs., 783 N.W.2d 459, 468 (Iowa

2010); Primmer v. Langer, No. 13-0930, 2014 WL 4930456, at *5 (Iowa Ct. App.

Oct. 1, 2014); see also Fed. Signal Corp. v. Safety Factors, Inc., 886 P.2d 172,

188 (Wash. 1994) (en banc) (explaining the defective goods must have been the

cause of lost sales). There is no evidence the breach of the implied warranty—

the sale of defective goods—caused CWC consequential damages in the form of

a lost sale to Martinez. The evidence is to the contrary. Martinez purchased

another N/S system but from a different distributor, from which the jury could

have inferred Martinez selected another distributor for some reason other than

dissatisfaction with N/S’s product. CWC actually concedes the issue. In support

of its argument, CWC repeatedly stresses Martinez selected another distributor

because N/S blamed CWC for defective installation of the car wash and

encouraged Martinez to purchase N/S’s product through another distributor.

Even crediting CWC’s theory of the case, CWC only proved it suffered

consequential damages because of N/S’s interference with CWC’s relationship

with Martinez. While N/S’s interference may or may not have been improper, its

interference with CWC’s customer relationship is not a breach of implied

warranty.
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       Independently, there are additional reasons to affirm the district court’s

denial of CWC’s challenge to the jury verdict. The jury could have inferred from

the evidence Martinez selected another distributor for its second car wash for a

variety of reasons.    See Clancy v. City of Dubuque, No. 10-0004, 2010 WL

3894450, at *9 (Iowa Ct. App. Oct. 6, 2010) (stating we must consider “all

reasonable inferences that could be fairly made by the jury”). The evidence

showed the second distributor presented a better bid than CWC and CWC never

rebid the job. There is also evidence Martinez thought CWC were “morons” and

did not want to deal with them anymore. In addition, CWC’s documentation of

lost profit on any potential sale was lacking. Ultimately, this was a question of

fact for the jury. When the evidence is viewed in the light most favorable to the

verdict, see Wilson v. IBP, Inc., 558 N.W.2d 132, 144 (Iowa 1996) (“We are

obligated to view the evidence in the light most favorable to the jury verdict.”), the

verdict is supported by substantial evidence and administers substantial justice

between the parties.     The district court did not err or abuse its discretion in

denying CWC’s motion for new trial.

                                          II.

       CWC challenges an evidentiary ruling. CWC contends the district court

erred in allowing N/S to ask questions regarding other litigation between CWC

and another car wash manufacturer.              “We review the district court’s

determination of relevancy and admission of relevant evidence for an abuse of

discretion. An abuse of discretion exists when the court exercised its discretion

on grounds or for reasons clearly untenable or to an extent clearly

unreasonable.” Mohammed v. Otoadese, 738 N.W.2d 628, 631–32 (Iowa 2007).
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A ground or reason is untenable when it is not supported by substantial evidence

or when it is based on an erroneous application of the law. See Waits v. United

Fire & Cas. Co., 572 N.W.2d 565, 569 (Iowa 1997).

        The general rule is relevant evidence is admissible and irrelevant

evidence is inadmissible. See Iowa R. Evid. 5.402. Relevant evidence is that

having “any tendency to make the existence of any fact that is of consequence to

the determination of the [present] action more probable or less probable.” Iowa

R. Evid. 5.401.     Relevancy is contextual, dependent upon the relationship

between the issues raised, the other evidence introduced, and the applicable

law. See Gibson v. Buckley, No. 14-1108, 2015 WL 2394116, at *3 (Iowa Ct.

App. May 20, 2015). N/S sets forth a convoluted explanation of why the other

litigation was relevant to prove spoliation in this case and why the evidence was

useful for impeachment purposes. We reject the claimed bases of relevancy.

See, e.g., United States v. Ealy, No. 1:00CR00104, 2002 WL 1205035, at *4

(W.D. Va. June 3, 2002) (disallowing evidence where the “arguments of

relevancy hinge on a series of convoluted inferences and inject issues collateral

to those in this case”). CWC’s litigation with another manufacturer was wholly

unrelated to the limited, single issue tried in this case—whether N/S’s breach of

an implied warranty resulted in consequential damages to CWC.

        We reiterate the supreme court’s admonition regarding the use of prior

litigation:

        We note, however, that it is the duty of trial courts, upon timely
        objection, to prevent the introduction of evidence regarding
        unrelated prior claims. Such evidence can be very distracting and
        improperly impugn the merits of the case being tried. Our ruling in
        this case should not be read as tacit approval for introducing
                                          7


       inadmissible evidence on a pinch-of-salt basis. Our standard for
       reversal may prove inadequate in the event the trial bar continues
       to be successful at introducing inadmissible evidence of prior
       unrelated claims. At this time, we rely upon trial judges to resist
       creative efforts to inject potentially prejudicial, irrelevant evidence
       into the record.

Mohammed, 738 N.W.2d at 633–34.

       The lack of relevancy does not end the inquiry. The erroneous admission

of evidence does not require reversal unless a substantial right of the party is

affected. See Iowa R. Evid. 5.103(a). “In other words, the admission of evidence

must be prejudicial to the interest of the complaining party.       This requires a

finding that it is probable a different result would have been reached but for the

admission of the evidence or testimony.” Mohammed, 738 N.W.2d at 633.

       We conclude CWC failed to establish prejudice. CWC does not argue it

suffered prejudice; instead, it argues this court should overrule Mohammed and

hold prejudice should be presumed. “We are not at liberty to overrule controlling

supreme court precedent.” State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App.

2014). In addition, as in Mohammed, the questions were only a small part of a

lengthy trial. Cf. Mohammed, 738 N.W.2d at 633 (“The questioning was brief in

the context of a seven day trial.”). Any prejudicial effect was further minimized

because this was a single-issue trial on damages where the jury was instructed

breach had already been found. The prior litigation had little bearing on the

question of damages. See id.; Mays v. C. Mac Chambers Co., 490 N.W.2d 800,

804 (Iowa 1992) (finding defense counsel’s questions concerning plaintiff’s prior

claims against other persons or companies were improper but not prejudicial).

Thus, the district court did not err by denying a new trial on this ground.
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                                         III.

       CWC challenges a jury instruction. CWC contends the district court erred

in submitting a spoliation instruction to the jury relating to CWC’s purported

destruction or failure to produce financial records related to its consequential

damages.     A spoliation instruction is justified if the party requesting the

instruction has presented substantial evidence that: (1) the evidence in question

existed; (2) the evidence was in the possession or under the control of the party

charged with the destruction of the evidence; (3) the evidence would have been

admissible at trial; and (4) the party responsible for its destruction did so

intentionally. State v. Hartsfield, 681 N.W.2d 626, 630 (Iowa 2004). We review a

trial court’s refusal to give a spoliation instruction for an abuse of discretion. See

Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707 (Iowa 2016). However, the trial

court does not have discretion to refuse a spoliation instruction when the

defendant has generated a jury question on the spoliation inference. Hartsfield,

681 N.W.2d at 631. Instructional error is not reversible error unless there is

prejudice. State v. Piper, 663 N.W.2d 894, 914 (Iowa 2003), overruled on other

grounds by State v. Hanes, 790 N.W.2d 545, 556 (Iowa 2010).

       We conclude the instruction was warranted and, in any event, non-

prejudicial under the facts and circumstances of this case. The record reflects

CWC was on notice to preserve certain financial records to prove its claim for

consequential damages but failed to preserve them.           Instead, it produced a

summary of the underlying financial records.         After this litigation had been

pending for years, CWC produced some of the requested records five days prior

to trial, precluding N/S from effective examination of the records.             More
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important, as set forth above, CWC’s theory of the case related to N/S’s

interference with CWC’s relationship with Martinez rather than proving N/S’s

breach of warranty caused consequential damages.                CWC’s claim for

consequential damages for breach of implied warranty was doomed to fail based

on CWC’s theory of the case. Under the circumstances, we conclude CWC was

not prejudiced by the instruction. See Strasser v. Yalamanchi, 783 So.2d 1087,

1094 (Fla. Dist. Ct. App. 2001) (“Simply stated, the evidence presented to the

jury was such that the verdict was not likely affected by the erroneous

instruction.”).

                                        IV.

       For the foregoing reasons, we affirm the judgment of the district court.

       AFFIRMED.
