JL Construction Services, LLC v. Alex Bixby

IN THE COURT OF APPEALS OF IOWA

No. 21-1935
Filed August 3, 2022

JL CONSTRUCTION SERVICES, LLC,
Plaintiff-Appellant,

vs.

ALEX BIXBY,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Butler County, Colleen D. Weiland,

Judge.

JL Construction Services, LLC, appeals from judgment entered in this action

arising from an oral construction contract. AFFIRMED.

Elizabeth M. Wayne, Parkersburg, for appellant.

Paul Demro of Correll, Sheerer, Benson, Engels, Galles & Demro, P.L.C.,

Cedar Falls, for appellee.

Considered by Bower, C.J., and Tabor and May, JJ.
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BOWER, Chief Judge.

JL Construction Services, LLC, appeals from judgment entered in this action

arising from an oral construction contract.

Jesse Nitcher is the owner-operator of JL Construction Services, LLC (“JL”),

which primarily engages in residential construction services. Nitcher sometimes

works with independent contractors when he needs additional labor.

In the fall of 2016, Alex Bixby spoke with Chris Buseman about needed

repairs to his roof, facia, and window wraps due to hail damage. Buseman

sometimes assists Nitcher as an independent contractor. Buseman spoke to

Nitcher about Bixby. Nitcher submitted a November 27, 2016 written estimate in

the amount of $9785 for JL to perform the work Bixby needed—$8050 of which

was for installing a corrugated steel roof on top of an existing roof at Bixby’s

residence and replacing a corrugated steel roof on Bixby’s garage. Bixby agreed

to JL’s terms.

Nitcher and Buseman did the roof work in August 2017. The additional work

contemplated was not completed at that time. Nitcher testified he gave Bixby a bill

for work done on August 31, 2017. Bixby testified that he was never asked for

payment and the agreement was that payment would be made when the work was

completed.

In December 2017, Bixby experienced leaking from his roof, which

damaged insulation and sheetrock he had recently installed on his second floor.

Bixby testified he rented a boom lift to get on the roof in the middle of the night.

He saw a tear on a rubber boot installed around a pipe, leaving an inch-and-a-half

space between the boot and the pipe where water was running down the pipe and
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into the attic. Bixby took the vent pipe out and routed it through a window and

patched the roof with a piece of steel. In the spring, Bixby permanently fixed the

roof with two new pieces of steel.

JL contacted Bixby in January 2018 about doing the rest of the work. Bixby

told Nitcher he had arranged for someone else to finish the job.

Counsel for JL sent Bixby a notice to cure on November 28, 2018, asserting

JL was seeking “recovery of the amount of $8933.83 including interest on which

you are alleged to be in default” for materials and construction labor provided. An

attached invoice, dated November 6, reads:
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Another notice to cure was sent to Bixby on November 1, 2019, now seeking

recovery of $11,855.30.1

On July 1, 2020, JL sued Bixby. A recast petition asserts, in pertinent part:

3. That [JL] and [Bixby] entered into an oral contract for
construction at [Bixby]’s residence. A written estimate was given to
[Bixby]. The estimate included installing 2x4 nailers to roof and
install new steel panels, install new aluminum fascia, install new steel
panels to garage only, wrap all windows with coil stock. A copy of
the job estimate is attached hereto.
4. That on or about August 18, 2017, [JL] started construction
as agreed upon between the parties.
5. That on or about August 28, 2017, the terms of this
agreement were fulfilled by [JL]. The work actually completed
included installing 2x4 nailers and new steel panels to roof of house
and installing new steel panels to the garage roof. Additional work
added by [Bixby] included installing new steel fascia and new window
wrap to windows.
6. That on August 30, 2017, [JL] hand delivered his invoice in
the amount of $8050.00 for the roof construction only and an invoice
in the amount of $10,185.00 which included the roof construction as
well as additional work that was verbally requested by [Bixby].
7. That [Bixby] has failed to make any payment for the
products and services as agreed.

JL sought judgment for $11,855.30 plus interest.

Bixby answered and asked the petition be dismissed because his

performance on his contractual obligations was excused by JL’s defective

workmanship. Bixby counterclaimed, asserting that as a result of JL’s “failure to

perform his work in a professional and workmanlike manner” his home “suffered

water damage resulting in costly repair to the interior of the home.” Bixby asserted

he “should be compensated” for his damages “or said amounts should be offset

against any award” for JL.

1The amount listed for materials and labor was $8050 and includes these “past
due” amounts: $1574.72 (“1st year past due”), $1882.77 (“2nd year past due”),
and $347.81 (“3rd year/2 months past due”). The total came to $11,855.30.
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At trial, Nitcher testified he did not recall any problems installing the boot.

He claimed if there had been a significant tear on the boot during installation, he

would have replaced it. Nitcher acknowledged “there was no interest called for in

this construction agreement.”

After the bench trial, the court made these findings:

The cause of Bixby’s damages was clearly the boot failure.
The primary decision to make here is whether JL installed the boot
incorrectly or whether an intervening cause resulted in the boot
tearing away from the pipe. The court believes Bixby’s statement
that the boot was damaged when he saw it in situ. The court further
finds that Bixby did not tear the boot during its removal. It is possible
that the pipe did move during some of Bixby’s home rehabilitation but
does not accept that such movement would have caused that much
damage to the boot. It is more likely that the boot was not installed
properly. It was not a minor problem, and the court finds a breach.
Bixby has proven his consequential damages arising from
JL’s breach. See R.T.T. Corp. v. Frank Paxton Co. Inc., 329 N.W.2d
416, 421 (Iowa 1983). Even if JL substantially performed, Bixby is
entitled to “offsets for defects in the builder’s work and for omissions
from the contract.” Palmer v. Glasbrenner, [No. 03-0492, 2004 WL
1159736, at *2 (Iowa Ct. App. May 26, 2004) (citation omitted].

Both parties filed motions to enlarge, amend, and modify. JL asserted it

was entitled to finance charges on the unpaid balance of accounts receivable

pursuant to Iowa Code section 535.11 (2017) and Bixby was given notice of the

finance charge on bills, which Nitcher testified he hand-delivered in August 2017.

JL notes, “Although the finance charge language on JL’s bills appears to contain

a typo and says payment is due 30 days prior to billing date, it does lay out the

1.5% interest rate, which is less than allowed by statute.”

The court modified its damages calculations, awarding JL $8050 and Bixby

$2689.01. With respect to the finance charge, the court found JL

did not prove that billings provided to [Bixby] included a notice of
finance charge or that any notice it did provide complied with Iowa
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Code [section] 535.11(2). [Nitcher] conceded that interest was not a
term of the parties’ agreement. Accordingly, the court should not
have awarded the finance charge as part of [JL’s] damages.

JL appeals, asserting the court erred in denying its requested eighteen

percent annual finance charge and in finding merit in Bixby’s counterclaim.

We review for correction of errors at law. See Iowa R. App. P. 6.907.

Consequently, the district court’s findings are binding on us “if supported by

substantial evidence.” Iowa R. App. P. 6.904(3)(a). Because there is substantial

evidence to support the court’s findings and no error in its conclusions, we affirm

without further opinion. See Iowa Ct. R. 21.26(1)(a), (b), (e).

AFFIRMED.