                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1215
                                Filed July 9, 2015


BRUENING ROCK PRODUCTS, INC.,
    Plaintiff-Appellant/Cross-Appellee,

vs.

HAWKEYE INTERNATIONAL TRUCKS,
     Defendant-Appellee/Cross-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Winneshiek County, Margaret L.

Lingreen, Judge.



      A plaintiff appeals from the district court’s directed verdict in favor of the

defendant company.       The defendant cross-appeals.          REVERSED AND

REMANDED ON APPEAL; AFFIRMED ON CROSS-APPEAL.



      Kevin J. Visser, Abbe M. Stensland, and Rae Kinkead of Simmons Perrine

Moyer Bergman, P.L.C., Cedar Rapids, for appellant.

      Steven J. Pace and Kelly A. Cwiertny of Shuttleworth & Ingersoll, P.L.C.,

Cedar Rapids, for appellee.



      Heard by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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VAITHESWARAN, J.

        The primary issue in this appeal is whether a jury verdict on a breach-of-

contract claim is supported by substantial evidence.

   I.      Background Facts and Proceedings

        Bruening    Rock    Products,    Inc.   purchased    trucks   from    Hawkeye

International Trucks. In time, Bruening sued Hawkeye, alleging breach of its

contract to provide trucks with a gross vehicle weight rating (“GVWR”) of 74,000

pounds. The case was tried to a jury. At the close of Bruening’s evidence,

Hawkeye moved for a directed verdict on several grounds, including a theory that

Bruening’s real claim was one for breach of an implied warranty and the statute

of limitations on this claim had long since expired. The district court reserved

ruling on the motion. See Larkin v. Bierman, 213 N.W.2d 487, 490 (Iowa 1973)

(stating the better practice is to reserve ruling on the directed verdict motion until

after the jury has rendered verdict, so as to avoid retrial). The jury returned a

verdict in favor of Bruening for $1,167,904.85.

        After trial, the district court took up the previously-reserved directed verdict

motion and concluded Bruening “failed to generate substantial evidence of a

breach of written contract term by [Hawkeye].” The court further concluded, “The

evidence introduced may have supported claims for breach of implied warranty;

however those claims were not timely made.” The court sustained the motion for

directed verdict and entered judgment in favor of Hawkeye and against Bruening.

Bruening appealed and Hawkeye cross-appealed.
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   II.      Appeal—Substantial Evidence

         Bruening contends “substantial evidence supports the jury’s finding that

[Hawkeye] expressly promised performance, and failed to deliver on that

promise” and its “pled and proven contract claim cannot b[e] dismissed by the

trial court in ruling on a motion for directed verdict.” Our review is for correction

of errors at law. Determan v. Johnson, 613 N.W.2d 259, 261 (Iowa 2000). “A

defendant’s motion for directed verdict should be denied if there is substantial

evidence to support the plaintiff’s claim.” Hasselman v. Hasselman, 596 N.W.2d

541, 545 (Iowa 1999).

         Bruening sued Hawkeye under a single theory: breach of contract.1 The

district court instructed the jury Bruening would have to prove the following:

            1. The existence of a contract.
            2. The terms of the contract, including a term that
               Defendant would provide trucks with a gross vehicle
               weight rating (GVWR) of 74,000 pounds.
            3. The Plaintiff has done what the contract requires.


   1
      Hawkeye reiterates that Bruening’s claim was miscast as a breach-of-contract claim
rather than a breach-of-implied-warranty claim. In its view, “As it is not disputed that a
five year statute of limitations applies to implied warranty claims and the five year statute
of limitations for any implied warranty for these trucks has long since expired, the district
court was correct in finding that any claims based on the implied performance terms of
the deal would be time barred.” Hawkeye did not file a motion to dismiss or raise the
claimed statute-of-limitations defense in its answer or amended answer. See Rieff v.
Evans, 630 N.W.2d 278, 289 (Iowa 2001) (stating defense could be raised in a motion to
dismiss); Porter v. Good Eavespouting, 505 N.W.2d 178, 182 (Iowa 1993) (stating
defendants had duty to raise statute-of-limitations defense in pleadings). Accordingly,
the defense was waived. Porter, 505 N.W.2d at 182 (“Because the limitations defense
was not raised, the defendant waived it.”); Conklin v. Towne, 216 N.W. 264, 266 (Iowa
1927) (“The statute of limitations was not set up as a defense until appellant had rested
his case. If not taken advantage of by demurrer or answer, it will be deemed waived.”);
see generally Bond v. Cedar Rapids Television Co., 518 N.W.2d 352, 355 (Iowa 1994)
(“We have defined an affirmative defense as ‘one resting on facts not necessary to
support plaintiff’s case.’ Under Iowa rule of civil procedure 101 these matters must be
specially pleaded, and a motion for directed verdict or a motion for judgment
notwithstanding the verdict do not qualify as special pleadings. Without such a pleading,
the question may not be entertained on appeal.” (citations omitted)).
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          4. The Defendant has breached the contract, by failing to
             provide trucks which met the terms of the contract.
          5. The Amount of any damage the Defendant has caused.

The record contains substantial evidence to support these elements.

       First, there is no question the parties entered into a contract. Bruening, an

operator of rock quarries, needed trucks to haul rock from one of its underground

mines. Bruening negotiated with Hawkeye to design and manufacture four trucks

capable of hauling approximately twenty-five tons of rock from the underground

mines. Following initial discussions, Hawkeye presented a proposal listing the

trucks’ specifications.   Bruening accepted the proposal and the trucks were

manufactured by another company, Navistar.

       Second, Hawkeye essentially concedes the existence of substantial

evidence establishing the GVWR as a term of the contract. The proposal stated

the trucks would carry a GVWR of 74,000 pounds, meaning the trucks could haul

74,000 pounds, including the weight of the truck. See Iowa Code § 321.1(29)(c)

(2009) (defining “gross vehicle weight rating” as “weight specified by the

manufacturer as the loaded weight of a single vehicle.”).              During the

manufacturing process, Navistar suggested certain changes, which were

accepted by Bruening. At no time was the trucks’ GVWR modified to less than

74,000 pounds.

       Hawkeye instead focuses on the import of the GVWR. In its view, the

GVWR of 74,000 pounds was not a “performance term” because “there was no

evidence at all that the inclusion of GVWR on the documents constituted a

promise the trucks would perform in any particular manner.” A reasonable juror

could have found otherwise.
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       Bruening’s president testified he informed a Hawkeye representative “I

want to haul around 25 ton.” He stated, the 74,000 pound GVWR means “this

truck is designed with the weight of the load, with the weight of the truck, not to

exceed 74,000 pounds.” In other words, “the weight of the truck and then the

load in it cannot be over 74,000 pounds. That’s what the truck is rated at.” A

Bruening mechanic similarly testified the GVWR was important “[s]o that we

know what—how big a load we can put in the vehicle.”

       Hawkeye confirmed this understanding.              A Hawkeye employee who

ordered the trucks from Navistar testified Bruening approved certain changes to

the trucks “[i]f it didn’t affect our gross vehicle weight rating.”

       In short, substantial evidence established the 74,000 pound GVWR was

more than a boiler-plate rating; it was a specific, negotiated term affecting the

performance of the vehicle. See generally Iowa Code § 554.2313(1)(b) (“Any

description of the goods which is made part of the basis of the bargain creates an

express warranty that the goods shall conform to the description.”).

       The third element—Bruening’s performance of the contract—is essentially

undisputed. Bruening paid for the trucks and accepted delivery of them.

       Hawkeye vigorously disputes the fourth element—whether there was a

breach. In its view, Bruening failed to show “the actual breach of the GVWR

rating itself.” Again, a reasonable juror could have found otherwise.

       Bruening     representatives     testified   the   trucks      failed   to   perform.

Specifically, the wheel rims cracked and the studs holding the rims

malfunctioned.
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      Hawkeye initially believed Bruening was overloading the trucks. Bruening

dispelled this concern by regularly weighing loaded trucks and recording lower

than 74,000 pound weights.        Bruening representatives testified they never

exceeded the 74,000 pound GVWR in transporting rocks.

      Hawkeye also suggested the breakdowns could have resulted from other

factors. Again, Bruening countered this suggestion with evidence of regular,

routine maintenance on the trucks.       The jury was free to credit Bruening’s

evidence. Blume v. Auer, 576 N.W.2d 122, 125-26 (Iowa Ct. App. 1997). Based

on this circumstantial evidence, a juror reasonably could have found the GVWR

was not as represented and Hawkeye breached this term of the contract. See

Iowa R. App. P. 6.904(3)(p) (stating direct and circumstantial evidence are

equally probative).

      We are left with Bruening’s proof of damages.           In its cross-appeal,

Hawkeye contends Bruening’s evidence of lost profits was speculative. The jury

reasonably could have found otherwise. See Field v. Palmer, 592 N.W.2d 347,

353 (Iowa 1999) (stating “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” (citing

Sun Valley Lake Ass’n v. Anderson, 551 N.W.2d 621, 641 (Iowa 1996))); Harsha

v. State Sav. Bank, 346 N.W.2d 791, 798 (Iowa 1984) (upholding “generous” jury

verdict for breach of contract, which was “within the evidence”).
                                           7


           Bruening provided the court with extensive documentation and testimony

concerning the amount of damages.2 Bruening’s chief financial officer discussed

the documents and testified to Bruening’s damages.                 This amounted to

substantial evidence in support of the damage award.

    III.      Cross-Appeal Issues

           On cross-appeal, Hawkeye contends the district court erred in rejecting

several remaining grounds in support of its motion for directed verdict. We have

considered the grounds and have either addressed them in connection with our

discussion above or discern no error in the district court’s conclusions and affirm

without further discussion.

    IV.       Disposition

           Because the jury verdict was supported by substantial evidence, we

reverse the grant of Hawkeye’s motion for directed verdict and remand for

reinstatement of the verdict. We affirm on all issues raised in the cross-appeal.

           REVERSED AND REMANDED ON APPEAL; AFFIRMED ON CORSS-

APPEAL.




2
  Hawkeye contends the district court should have excluded some of the evidence
because, in its view, Bruening intentionally destroyed certain maintenance records. The
district court admitted the evidence but instructed the jury on spoliation. We discern no
abuse of discretion in this ruling. Hall v. Jennie Edmundson Mem’s Hosp., 812 N.W.2d
681, 685 (Iowa 2012).
