Gray's Lake Activities Center LLC v. Sani Enterprise LLC

IN THE COURT OF APPEALS OF IOWA

No. 22-1874
Filed January 24, 2024

GRAY’S LAKE ACTIVITIES CENTER LLC,
Plaintiff-Appellant,

vs.

SANI ENTERPRISE LLC,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, David Nelmark, Judge.

An activities center appeals the amount awarded for damages to its parking

lot caused by a painting contractor’s boom truck. AFFIRMED.

Jeffrey M. Lipman of Lipman Law Firm, P.C., West Des Moines, for

appellant.

Bryant Hickie and Michael Carmoney of Carmoney Law Firm, PLLC, Des

Moines, for appellee.

Considered by Tabor, P.J., and Buller and Langholz, JJ.
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TABOR, Presiding Judge.

This action stems from damage to the parking lot and sidewalk of an

activities center caused by a boom lift used to paint a neighboring building. The

question is: how much damage did the boom lift cause? Because the district court

properly approximated the area of damage from photographs and testimony

offered into record, we affirm.

I. Facts and Prior Proceedings

Once part of a business school campus, Gray’s Lake Activities Center LLC

(Gray’s Lake) is now a practice gym leased to the Iowa Wolves, a professional

basketball team. A neighboring apartment complex hired Sani Enterprise LLC

(Sani), a property services management company, to paint its exterior in 2020.

Sani brought in a large boom lift to reach the heights of the building. Without

permission from Gray’s Lake, a Sani employee drove the lift onto the south side

parking lot and sidewalk at the front entrance of the gym. But the boom could not

make it back to the apartments without causing damage. Wolves’ president Ryan

Grant watched the events unfold. He thought: “There was no way that boom truck

was going to be able to get back there.” And he was right. It did not get by the

gym entrance before it started “digging into the ground, and they had to turn around

and get it back. They could not navigate through there.” Both Grant and Gray’s

Lake property manager Michael Neary viewed the damaged concrete.

Sandro Tadic, the owner of Sani, did not deny the boom truck caused

damage but disputed how much his company owed Gray’s Lake. Gray’s Lake

claimed the cost of repairs was $14,900—the amount of an invoice from Economic

Concrete Services (ECS) reflecting repairs to 1800 square feet of the parking lot
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for $12,600 and 260 square feet of sidewalk along with sixteen feet of curb for

$2300.1 When Tadic declined to pay those amounts, Gray’s Lake sued.

At a bench trial, Neary testified that before the boom truck event, the gym’s

parking lot was not “dangerous or nonfunctional.”2 But when shown an aerial

photograph of the parking lot after the repairs, Neary testified that he did not know

what concrete Gray’s Lake replaced beyond the area damaged by Sani. In his

words, “I can’t pin that down.” For its part, Sani offered Exhibit E showing the

original quote from ECS was to repair “5X5 & 20X3” feet of sidewalk, sixteen feet

of curb, and “tear our 4X12 asphalt & replace with concrete” for $2600. Neither

party offered a witness from ECS. On photographic exhibits offered by Gray’s

Lake, both Grant and Tadic marked where they believed the boom lift damaged

the parking lot.

The district court found that Sani was liable for repairs through the doctrine

of promissory estoppel; a contract with Gray’s Lake was implied in fact. As for the

cost of those repairs, the court rejected the request from Gray’s Lake for the full

amount of $14,900 that was invoiced. It reasoned that the invoice established

“what was repaired, but not what was damaged by the boom truck.” The court

then calculated the area of damage based on photographs and markings made by

Tadic and Grant. It also used a sport utility vehicle (SUV) pictured in one of the

exhibits to estimate the square footage of the area. As its bottom line, the court

1 Gray’s Lake also hired ECS to fix cement that was not damaged by the boom

truck and paid another $9600 for repairs that it did not seek from Sani.
2 Wolves’ president Grant agreed that the parking lot and sidewalk were in decent

condition before the event, saying he would not have let his athletes risk injury if
the parking lot and sidewalk had been in such disrepair.
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awarded Gray’s Lake $2625 for the parking lot damage (covering 375 square feet)

and $2300 for the walkway and curb, plus interest. Gray’s Lake appeals.

II. Scope and Standard of Review

Our standard of review for a bench trial depends on how it was tried. Carroll

Airport Comm’n v. Danner, 927 N.W.2d 635, 642 (Iowa 2019). This case was tried

at law, so we review for the correction of legal error. Id. We are bound by the

district court’s findings if they are supported by substantial evidence. Collins Tr. v.

Allamakee Cnty. Bd. of Supervisors, 599 N.W.2d 460, 463 (Iowa 1999). “Evidence

is substantial when a reasonable mind would accept it as adequate to reach a

conclusion.” Hansen v. Seabee Corp., 688 N.W.2d 234, 237 (Iowa 2004) (cleaned

up). Although the court’s legal conclusions do not bind us, we “construe them

broadly in favor of upholding the judgment.” Id. (cleaned up).

III. Analysis

Gray’s Lake asks us to remand this case to the district court to award

“damages consistent with the evidence presented at trial.” It argues that “the

court’s finding as to the size of the Sani-caused damage to the parking lot lacks all

foundation and cannot form the basis of an award.” In its view, the award for the

parking lot damage should have been $12,600, rather than $2625. It also argues

that the court ignored credible testimony. We disagree with both arguments.

A. Did the district court err in estimating the area of damage?

In deciding the damages amount, the court points to a glaring gap in the

evidence—the lack of measurements delineating the area damaged by Sani. The

court also lacked any testimony comparing the areas referenced in the ECS quotes
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to the photos of the parking lot. And neither party presented a witness from ECS.

The court was “left to estimate the area of damage from the photographs and

markings made by Tadic and Grant.”

As its starting point, the court noted that the parking lot already had a large

amount of wear and tear before the incident. The court then worked through the

available evidence to decide that the boom lift damaged more than the forty-eight

square feet referenced in the original quote from ECS but less than the 1800

square feet in the final invoice. The court settled on a middle ground: “Based on

its finding that 375 square feet of the parking lot was damaged, the Court awards

$2,625 for such damages to the parking lot in addition to the $2,300 awarded for

damage to the walkway and curb.”

The court described its process:

[B]ased on the size of the cars in the photo, an estimate of 4 feet by
12 feet for the size of the square Tadic drew on the parking lot seems
reasonable. However, just because that was Tadic’s estimate of the
size of damage to the lot does not mean the actual damage was so
limited. Using the nearby vehicle as a benchmark, the Court
estimates the size of the area noted by Tadic as 150 square feet and
the size of the area noted by Grant as 375 square feet. Both of these
areas are substantially larger than the 48 square feet noted in
Exhibit E, but far less than the 1800 square feet noted in Exhibit 1.
Grant’s trial testimony discussed only one rut created in the parking
lot. He also refers to the damaged area in the parking lot as being
like a “speed bump.”

From there, the court assumed:

[T]he SUV pictured in Exhibit 5 p 3 is 15 feet long and 6 feet wide, it
appears the sidewalk area outlined by Tadic would be approximately
300 square feet. Madsen inspected the sidewalk damage and
prepared a quote for two sections of sidewalk: one that was 325
square feet and one that was 225 square feet. Exhibit 4. Given that
the area of sidewalk repaired in Exhibit 1 and sought to be assessed
to Defendant is 260 square feet, the Court has no difficulty assessing
that line item for $2,300 to the Defendant.
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On appeal, Gray’s Lake objects to the court’s estimations, quoting Clinton

National Bank v. City of Camanche for the proposition that the trial judge “must not

consider his observations as evidence.” 251 N.W. 2d 248, 251 (Iowa 1977).

Gray’s Lake characterizes the court’s estimate of the width of the rectangles and

its reference to the width of an SUV as the court bringing in its own observations.

The comparison is not apt. In Clinton National Bank, the supreme court cautioned

against a judge conducting a “self-initiated inspection tour” of a residence to

determine lot lines. Id. By contrast, the court here did not make its own

observations but relied on the photographic evidence and testimony in the record.

Plus, a court also may take judicial notice of matters that are generally known. See

State v. Stevens, 719 N.W.2d 547, 550 (Iowa 2006); see also Iowa R. Evid.

5.201(b)(1). The approximate size of the SUV falls into that category. See

Robinson v. Richardson, 484 S.W.2d 27, 29 (Mo. Ct. App. 1972) (taking judicial

notice of the width of modern cars).

As Sani argues, Gray’s Lake did not meet its burden of proving that it could

recover damages for the parking lot in the amount of $12,600. See Data

Documents, Inc. v. Pottawattamie Cnty., 604 N.W.2d 611, 616 (Iowa 2000) (“[T]he

party seeking damages bears the burden of proving them . . . .”). But the damages

awarded by the district court fell within the evidence presented. Id.; see also PRO

Com. LLC v. Mallory Fire Prot. Servs., Inc., 15-1420, 2016 WL 7395728, at *3

(Iowa Ct. App. Dec. 21, 2016) (“Damages can be established in part or in whole

by witness testimony.” (Emphasis added.)). We find substantial evidence in the

record to support the court’s damage award.
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B. Did the trial court err in ignoring credible testimony?

In another critique of the district court’s analysis, Gray’s Lake claims the

court “ignored evidence it identified as credible.” It points to this passage from the

ruling: “The court finds that Plaintiff’s witnesses who had personally experienced

the parking lot and sidewalk prior to the damage [were] more credible and

convincing than Defendant’s witnesses.” From there, Gray’s Lake claims that the

court should have accepted Neary’s testimony that the parking lot damage

amounted to $12,600.

But as Sani points out, the court’s general credibility finding did not mean

that it had to accept every fact to which a witness testified. See Est. of Hagedorn

ex rel Hagedorn v. Peterson, 690 N.W.2d 84, 88 (Iowa 2004) (“[T]he credibility of

witnesses is peculiarly the responsibility of the fact finder to assess.”). And Neary

admitted that he could not identify in the photographs which area of the parking lot

that Gray’s Lake elected to replace was damaged by the boom lift. Neary only

testified that ECS invoiced him for the overall cost of the repairs. His testimony

left the court to estimate the area damaged from other evidence. The court had to

fill the gaps between the evidence presented and was able to do so. Thus, we

affirm.

AFFIRMED.