                  IN THE COURT OF APPEALS OF IOWA

                                 No. 16-0031
                           Filed January 25, 2017


EUGENE BURNELL GARRETT JR.,
    Plaintiff-Appellee,

vs.

TERRY COLTON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Union County, Dustria A. Relph,

Judge.



      A defendant appeals the district court’s decision ordering specific

performance of a partition fence agreement between adjoining land owners.

AFFIRMED AND REMANDED.



      Jami J. Hagemeier of Williams & Hagemeier, P.L.C., Des Moines, for

appellant.

      Brant D. Kahler and Michael R. Blaser of Brown, Winick, Graves, Gross,

Baskerville & Schoenebaum, P.L.C., Des Moines, for appellee.



      Heard by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
                                        2


VOGEL, Judge.

      Terry Colton appeals the district court’s decision ordering specific

performance of a partition fence agreement between himself and Eugene

Garrett, who are adjoining land owners. Colton contends on appeal the court

erred in prohibiting him from admitting exhibits and calling witnesses as a

sanction for failing to disclose the evidence during discovery. He further claims

the court erred in ordering an equitable remedy—specific performance—when

the case was tried as an action at law. Finally, he claims substantial evidence

does not support the court’s decision that Garrett was in substantial compliance

with the agreement.

I. Background Facts and Proceedings.

      Colton and Garrett are adjoining land owners in rural Union County. The

parties entered into a partition fence agreement in December 2012 to resolve a

previous dispute regarding the fence that separates their properties. See Iowa

Code §§ 359A.12, .13 (2013). The agreement specified, among other things, the

part of the fence each was responsible for maintaining; the type of wire and the

height at which the wire was to be strung; the type, height, and spacing of the

posts to be used; and the closing of a gated entrance. It also provided:

             Hedges, shrubs, trees, and other vegetation shall be cut and
      cleared from touching the partition fence. Each Party is responsible
      for such clearing on their respective sides of the partition fence.
      Damage to the partition fence caused by felled branches or trees
      shall be promptly repaired by the Party who owns the real property
      on which the tree emanates, regardless of which Party is otherwise
      responsible for that damaged portion of the partition fence under
      this Agreement.
                                           3


       The agreement also provided that the partition fence had to be “brought to

the standards contained” in the agreement before December 31, 2012, weather

permitting, but if the weather did not permit the necessary repairs, then the

repairs had to be completed by May 31, 2013. The agreement further stated,

“Each Party is prohibited from instituting any action against the other Party that

pertains to the fence and to the livestock owned by Garrett until the repairs to the

fence have been made in accordance with this Agreement.”

       In November 2014, Garrett filed a petition alleging Colton “ha[d] failed to

comply with his repair and maintenance obligations under the Partition Fence

Agreement” and asking the court to conclude Colton breached their contractual

agreement. Garrett asked the court to order Colton to specifically perform under

the agreement or award Garrett a monetary award for the cost to bring Colton’s

sections of the fence into compliance with the agreement.1 Trial was set for

November 23, 2015. Colton represented himself at the district court, answering

discovery. In conformance with the trial scheduling order, Colton filed his witness

and exhibit lists on November 16. In response to the pretrial filings of Colton,

Garrett filed a motion to exclude four witnesses and 143 photographs that had

been requested but had not been previously disclosed through discovery. At the

start of the bench trial, the court granted Garrett’s motion to exclude the

witnesses and the exhibits.




1
  Garrett also alleged Colton negligently damaged his property in April 2014 during a
controlled burn. After trial, the court concluded Garrett did not prove he suffered any
damages and denied Garrett any relief on that claim. That portion of the district court’s
ruling is not at issue in this appeal.
                                             4


       The court heard testimony from both Garrett and Colton, along with the

testimony from Doug Campbell, who inspected the fence for Garrett on multiple

occasions, and Clint Young, a fence contractor, who estimated the cost to

replace Colton’s fence. The court issued an oral decision at the end of trial that

Garrett was in substantial compliance with the agreement based on the “very

neutral and objective” testimony from Campbell.             The court ruled it was “not

going to interpret this contract to mean that if there is a little bit of brush in the

fence then this contract is null and void and you don’t have to do anything

because there is a little brush in the fence.”              The court ordered specific

performance of the agreement, and the parties agreed Campbell would be

retained, at Colton’s cost, to again inspect the fence and inform each party what

needed to be done to bring the fence into compliance. Campbell was also to do

a second inspection and a report to the court in June 2016 when the repairs had

been completed. The court further provided it “reserve[d] the right to take any

further action necessary to ensure the parties have complied with all obligations

required of them under the Partition Fence Agreement.”2

       Colton filed a posttrial “objection to Mr. Douglas Campbell serving as

fence viewer,” asserting Campbell was biased in favor of Garrett and that Colton

only agreed to Campbell serving in this role during trial because he felt pressured

to do so. He asked for a “neutral third party observer” to conduct the inspections.


2
  We conclude the court’s oral ruling at trial on November 23, 2016, together with the
written ruling entered December 7, 2015, to memorialize that oral ruling, is the final
ruling for the purposes of the right to appeal because it “conclusively adjudicate[d] all the
rights of the parties.” See Rowen v. LeMars Mut. Ins. Co., 357 N.W.2d 579, 581 (Iowa
1984). The court “merely reserved jurisdiction to decide issues that may arise while the
adjudication is being implemented.” Id. at 582. Therefore, this appeal is not
interlocutory, and we have jurisdiction to proceed.
                                        5


In support of his objection, Colton submitted additional photographs he asserted

were taken less than two weeks after trial that he claimed showed Garrett’s fence

out of compliance with the agreement.           The district court denied Colton’s

objection, noting Colton stipulated during trial to Campbell serving as a neutral

person to inspect the fence and noting it would not consider the additional

photographs submitted with the objection in light of the fact the record had been

closed.   Garrett was also awarded attorney fees because the agreement

provided for attorney fees to be awarded to the prevailing party in any action to

enforce the agreement.

      Colton appeals.

II. Scope and Standard of Review.

      Our scope of review on appeal is governed by the manner in which the

action was tried to the district court. Mosebach v. Blythe, 282 N.W.2d 755, 758

(Iowa 1979). Both parties agree the action was tried at law in light of the court’s

rulings excluding evidence based on numerous evidentiary objections. See Sille

v. Shaffer, 297 N.W.2d 379, 381 (Iowa 1980) (noting ruling on evidentiary

objections “is normally the hallmark of a law trial, not an equitable proceeding”).

Therefore, our review is for correction of errors at law. Gaede v. Stansberry, 779

N.W.2d 746, 747 (Iowa 2010). “[T]he trial court’s findings of fact are binding on

us if supported by substantial evidence.” Id.

      We review for abuse of discretion the court’s imposition of sanctions for

discovery violations. Whitley v. C.R. Pharmacy Serv., Inc., 816 N.W.2d 378, 385

(Iowa 2012).
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III. Discovery Sanction.

       For his first claim on appeal, Colton asserts the district court committed

reversible error when it excluded his photographs and the testimony of four of his

witnesses for failing to disclose this evidence during discovery. 3 He claims the

court should have considered the four factors outlined in Lawson v. Kurtzhals,

792 N.W.2d 251, 259 (Iowa 2010), before excluding the evidence, and the failure

to consider those factors amounts to an abuse of discretion.

       The district court has the inherent power to regulate cases within its

jurisdiction to final disposition, and this inherent power includes the authority to

exclude evidence for failing to supplement discovery. See Lawson, 792 N.W.2d

at 258. “Noncompliance with discovery requirements is often not tolerated.” Id.

We will find an abuse of discretion if the court’s ruling “rests upon clearly

untenable or unreasonable grounds.” Id. “In determining whether the court has

abused its discretion, we must determine whether the trial court appropriately

considered the options available.” Id. at 259. The Lawson court adopted four

factors that it believed “provide[d] an appropriate framework for determining

whether the trial court abused its discretion in prohibiting” a party from presenting

3
  As an initial matter, Garrett claims Colton did not preserve error on this claim because
Colton did not make an offer of proof as to the excluded evidence. See Iowa R. Evid.
5.103(a) (“A party may claim error in a ruling to admit or exclude evidence only if the
error affects a substantial right of the party and: . . . (2) If the ruling excludes evidence, a
party informs the court of its substance by an offer of proof, unless the substance was
apparent from the context.”). It is apparent from Garrett’s motion and the parties’
discussion on the record in this case that the exhibits at issue involved pictures taken of
the fence at various periods of time from April 2014 until November 2015. Pictures that
Colton asserts show Garrett’s noncompliance with the agreement. Presumably Colton’s
witnesses would have also offered testimony regarding the condition of the fence since
the agreement was entered. To the extent an offer of proof was necessary to preserve
error on this claim, we conclude the court’s ruling excluding the evidenced in question
can be reviewed because the substance of the evidence is apparent from the context of
the case. We thus choose to address the merits of Colton’s claim on appeal.
                                          7

evidence that had not previously been disclosed in discovery. Id. Those factors

are: “(1) the party’s 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.” Id. (quoting 27 C.J.S. Discovery § 102, at 169 (2009)).

       When reviewing the district court’s imposition of a discovery sanction, we

can consider these four factors to determine whether the court abused its

discretion, but we will not interpret Lawson to stand for the proposition that the

trial court’s failure to articulate on the record its consideration of these four

factors amounts to an abuse of discretion. Colton faults the district court for not

considering these factors, but when asked to respond to Garrett’s motion to

exclude, Colton provided no information to the court that could have assisted the

court in applying these factors. When asked to respond to Garrett’s motion,

Colton only stated he objected to the exclusion of one exhibit, containing eight

photographs, because Colton believed Garrett’s counsel had these pictures as a

result of previous litigation between the parties; an assertion Garrett’s counsel’s

denied.

       Colton provided no reason why the evidence he sought to introduce at trial

was not disclosed as part of discovery,4 he made no argument as to the

importance of the evidence to the trial, there was no discussion by either party of

the time needed for Garrett to prepare to respond to the evidence, and there was

no argument regarding the possibility or feasibility of continuing the trial. In light


4
  The parties do not dispute that Garrett’s discovery requests demanded the disclosure
of the evidence in question.
                                         8


of Colton’s failure to offer reasons for the nondisclosure, to indicate the

importance of the evidence, or to make any assertion that the continuance of the

trial would not have prejudiced Garrett, we do not find the district court abused its

discretion in excluding the evidence in question. Garrett was prepared and ready

for trial on the appointed date and he should not be required to conduct further

discovery at that late point because Colton failed to timely disclose evidence.

See id. at 260 (noting the district court did not abuse its discretion in excluding

evidence that was disclosed days before trial and after one continuance where

opposing party “was ready for trial and should not be expected to do further

discovery because of the late supplementation or endure another continuance at

that late date”).

IV. Equitable Remedy.

       Next, Colton asserts the court erred in granting an equitable remedy—

specific performance—when the action was heard at law. Colton contends that

because the action was at law, the court was without authority to order specific

performance of the agreement. We disagree.

       “Joinder of legal and equitable causes is not forbidden by our present

rules of civil procedure, but our statutes still recognize two kinds of civil

proceedings—ordinary and equitable.” First Nat’l Bank in Sioux City v. Curran,

206 N.W.2d 317, 320 (Iowa 1973). “When an action involving law and equity

causes is commenced by ordinary proceedings, . . . either party is entitled to

have the issues exclusively cognizable in equity tried by equitable proceedings.”

Id. at 321; see also Iowa Code § 611.10 (“Where the action has been properly

commenced by ordinary proceedings, either party shall have the right, by motion,
                                            9


to have any issue heretofore exclusively cognizable in equity tried in the manner

hereinafter prescribed in cases of equitable proceedings.”).

       However, in order to have an equitable issue that has been raised in an

ordinary proceeding tried in equity, a party must raise an objection and ask to

have the issue tried in equity. See Iowa Code § 611.12 (“An error as to the kind

of proceedings adopted in the action is waived by a failure to move for its

correction at the time and in the manner prescribed in this chapter”); Knight v.

Anderson, 292 N.W.2d 411, 412 (Iowa 1980) (“Although claimants seek specific

performance of an alleged oral contract to convey property, they filed a claim in

probate. The case was tried in probate to the court as a law action . . . . Neither

party objected to that procedure. Therefore, any error as to the forum is waived.”

(citation omitted)); Fort Madison Sav. & Loan v. Marion Cty. Sav. & Loan, 310

N.W.2d 545, 546 (Iowa Ct. App. 1981) (“[D]efendant urges that the remedy of

rescission was not available in an action tried at law. We note that rescission

was specifically prayed for in one count of plaintiff’s petition and that there was

no motion by defendant under s[ection] 611.10, The Code, to transfer that count

to equity. We therefore conclude that the issue was properly before the court for

determination in the trial of this action.”).

       Colton made no objection or motion asking for the specific performance

claim to be tried in equity; we therefore conclude the issue is waived.

V. Substantial Evidence.

       For his final claim on appeal, Colton asserts the court erred by finding

Garrett was in substantial compliance with the fence agreement. Colton asserts

that pursuant to paragraph six of the agreement all hedges, shrubs, trees, and
                                         10


other vegetation had to be cut and cleared from touching the fence and each

party was responsible for clearing their respective sides of the fence. Under

paragraph nine, “Each party is prohibited from instituting any action against the

other party that pertains to the fence . . . until the repairs to the fence have been

made in accordance with this agreement.” Colton asserts that reading these two

paragraphs together requires Garrett to clear all vegetation from touching the

fence before Garrett should have been able to file a lawsuit against Colton based

on Colton’s noncompliance with the agreement.          Because Colton asserts he

provided the court with evidence that there was vegetation touching the fence on

Garrett’s side, he contends the court erred in not dismissing this lawsuit and in

granting Garrett’s request for specific performance.

       In denying Colton’s request to dismiss the lawsuit based on Garrett’s lack

of compliance with the agreement, the court stated:

              Mr. Colton argues basically that Mr. Garrett’s claim is not
       ripe and should be dismissed because he claims that Mr. Garrett
       has not complied with the provisions of paragraph 9 of the
       agreement.
              However, Mr. Colton, I am bound by the rules of evidence
       and the evidence that has been presented. I take and I assign
       credibility to the evidence, and I observe it. The Court gets to
       decide what is believable and what is not believable and what
       weight to give that evidence.
              The evidence presented today came from Mr. Garrett and
       Mr. Campbell. Both Mr. Garrett and Mr. Campbell testified that Mr.
       Garrett was in substantial compliance with this partition agreement.
       You are asking me not to believe Mr. Garrett. However, based
       upon what I have seen and heard today, I can’t say that I believe
       Mr. Garrett any more or any less than I believe you. But I do
       believe that Mr. Campbell is a very neutral and objective individual
       who has nothing to gain by any of these proceedings. His
       testimony was that Mr. Garrett was in substantial compliance with
       the fencing agreement.
              The extent of him not being in compliance, to me, what I
       heard was that there may be some brush still in the fence. Now, I
                                         11


      am not going to interpret this contract to mean that if there is a little
      bit of brush in the fence then this contract is null and void and you
      don’t have to do anything because there is a little brush in the
      fence. I am not going to interpret it that way. If we interpreted it
      that way, you two will never get this resolved. We are going to
      resolve it soon. You guys are both going to go your own ways and
      live happily ever after.
              I find that Mr. Garrett has substantially complied with the
      Partition Fence Agreement, and he is entitled to the relief requested
      in his petition. I am going to order specific performance of this
      agreement, which means I am not going to ask you to do anything
      more than what this agreement says, and I am going to hold Mr.
      Garrett to that as well. If there is anything he hasn’t done yet, he is
      going to do it now, and so are you.

      Colton points out that Campbell testified as much as twenty-five percent of

Garrett’s fence line had vegetation. Campbell went on to testify that while he did

observe vegetation touching the fence from Garrett’s property the vegetation was

not causing the fence wires to sag down or break. Thus, the vegetation did not

cause the fence to come out of compliance with the agreement’s requirements

for the height of the fence wire. If the vegetation did not affect the structural

integrity of the fence or cause the fence to otherwise come out of compliance,

Campbell ignored it for the purposes of his report.          Based on Campbell’s

inspection, it was his opinion that Garrett was in substantial compliance with the

agreement, but Colton was not.

      Our supreme court has defined “substantial performance” to be the

performance of a contract “without a material breach.” Flynn Builders, L.C. v.

Lande, 814 N.W.2d 542, 546 (Iowa 2012) (quoting II E. Allan Farnsworth,

Farnsworth on Contracts § 8.16, at 518 (3d ed. 2004)).

      Substantial performance is that which, “despite deviations from the
      contract requirements, provides the important and essential
      benefits of the contract to the promisee.” The doctrine is intended
      to protect the right of compensation of those who have performed in
                                        12


       all material and substantive particulars, and it excuses contractual
       deviations or deficiencies which do not severely impair the purpose
       underlying a contractual provision.

SDG Macerich Props., L.P. v. Stanek Inc., 648 N.W.2d 581, 586 (Iowa 2002)

(citations omitted).   When the remedy is specific performance of a contract,

substantial performance by the plaintiff is allowed so long as the plaintiff’s “non-

compliance does not affect the essence of the agreement, does no violence to

the manifest intention of the parties, nor shows gross negligence.”        Shaw v.

Livermore, 2 Greene 338, 342 (1849).

       Viewing the evidence in the light most favorable to the court’s judgment,

as we must, we conclude substantial evidence supports the court’s determination

that Garrett substantially complied with the fence agreement. See EnviroGas,

L.P. v. Cedar Rapids/Linn Cty. Solid Waste Agency, 641 N.W.2d 776, 781 (Iowa

2002). The purpose of the contract was to maintain a partition fence between the

parties’ properties so that Garrett’s cattle would not invade Colton’s land. The

contract provided certain specifications as to the makeup of the fence and

assigned the maintenance duties between the parties.         The evidence at trial

indicates that before Garrett filed the lawsuit, he asked Campbell to inspect the

fence to point out areas where the fence was not in compliance with the

agreement, both the portion of the fence assigned to Colton and the portion of

the fence assigned to Garrett.      Garrett repaired the parts of his fence that

Campbell informed him were out of compliance with the agreement, and

Campbell testified he came back out to the property to ensure the repairs to

Garrett’s fence had been made. This occurred in the months before Garrett filed

suit in November 2014. In May 2015, during the pendency of the lawsuit, before
                                         13


trial occurred in November 2015, Campbell again inspected the fence and found

Garrett’s portion of the fence to be in “good condition.”

       While Campbell testified there was vegetation touching the fence from

Garrett’s property, that vegetation did not otherwise impair the integrity of the

fence or cause the wires to sag or break. Campbell testified that Garrett’s fence

would “turn cattle”—“the cattle would not go on the other person’s property”—but

Colton’s fence in places would not turn cattle.       Thus, based on Campbell’s

testimony, which the district court found to be unbiased and credible, the purpose

of the agreement had been served with respect to Garrett’s portion of the fence

despite the vegetation touching the fence. We conclude substantial evidence

supports the court’s determination Garrett was in substantial compliance with the

agreement so as to justify the court ordering specific performance.

VI. Attorney Fees.

       Both parties request an award of appellate attorney fees in light of the

language in the partition fence agreement that provides:

               The costs and expenses, including attorney fees, associated
       with any action between the Parties in the future in relation to the
       fence, inspection, and assessment of the fence and/or enforcement
       of this Agreement shall be recoverable by the prevailing Party and
       borne by the losing Party in any such action.

Pursuant to this same provision, the district court ordered Colton to pay

$19,358.75 of Garrett’s attorney fees and expenses associated with the trial in

this case. As Garrett is also the prevailing party on appeal, he is entitled to an

award of appellate attorney fees. However, Garrett did not file an application or

affidavit with this court to provide us with the amount of fees and costs he is

requesting.   Therefore, the issue of the award of appellate attorney fees is
                                         14

remanded to the district court so that an evidentiary hearing can be held. See

Bankers Trust Co. v. Woltz, 326 N.W.2d 274, 278 (Iowa 1982).

VII. Conclusion.

        We affirm the district court’s decision ordering specific performance of the

partition fence agreement.     The district court did not abuse its discretion in

prohibiting Colton from offering evidence at trial that was not previously disclosed

during discovery. The court was within its authority to order specific performance

in this case, and Colton waived any claim that case should have been heard in

equity. Finally, substantial evidence supports the district court’s conclusion that

Garrett substantially complied with the partition fence agreement. This matter is

remanded to the district court to rule on Garrett’s request for appellate attorney

fees.

        AFFIRMED AND REMANDED.
