Sabrina McIntosh and Michael McIntosh v. Classic Builders, Inc. ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0808
Filed June 30, 2021
SABRINA McINTOSH and MICHAEL McINTOSH,
Plaintiffs-Appellants,
vs.
CLASSIC BUILDERS, INC.,
Defendant-Appellee.
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Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan,
Judge.
Plaintiffs Sabrina and Michael McIntosh appeal the order granting summary
judgment to and dismissing their claims against Classic Builders, Inc. AFFIRMED.
Matthew M. Sahag of Dickey, Campbell & Sahag Law Firm, PLC, Des
Moines, for appellants.
Andrew C. Johnson of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des
Moines, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Ahlers, JJ.
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AHLERS, Judge.
The facts of this case as they relate to this appeal are largely undisputed.
Classic Builders, Inc. constructed a house in 2011 and sold it to Kristopher and
Lindsie Anderson that same year. The Andersons then sold the house to Sabrina
and Michael McIntosh in 2015. While it is disputed whether the Andersons
adequately disclosed basement water issues with the house in the paperwork
accompanying the sale, the Andersons did disclose at least one episode of water
in the basement prior to the sale being completed. After the McIntoshes purchased
the house, water seeped into the basement a number of times, damaging some of
the McIntoshes’ personal belongings. To prevent further problems and damage,
the McIntoshes incurred significant expenses to waterproof the basement.
The McIntoshes sued Classic Builders and the Andersons seeking
damages related to the basement flooding issues. With regard to Classic Builders,
the McIntoshes asserted a claim for breach of implied warranty of workmanlike
construction. To support their claims, the McIntoshes procured an opinion from an
expert witness who opined the flooding occurred due to “one or more of” four
possible causes: (1) a crack in the city’s waterline, (2) a crack in the house’s
foundation, (3) a crushed drain tile, or (4) the house being built below the water
table. Classic Builders did not present any opinions from a competing expert
witness.
The McIntoshes, the Andersons, and Classic Builders each moved for
summary judgment. The district court determined fact questions existed as to the
claims against the Andersons and so denied the summary judgment motions
related to the McIntoshes’ claims against the Andersons. As to the claims against
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Classic Builders, the district court concluded the McIntoshes’ expert “speculated
that one of three conditions might be the cause of the problem”1 but the McIntoshes
presented no evidence that any of those three conditions actually existed.
Therefore, the district court determined the McIntoshes failed to generate a fact
question on one of the elements of their cause of action and granted Classic
Builders’s motion for summary judgment while denying the McIntoshes’ motion.
The McIntoshes appeal.
I. Standard of Review
“The standard of review for summary judgment is correction of errors of
law.” Hollingshead v. DC Misfits, LLC, 937 N.W.2d 616, 618 (Iowa 2020).
“Summary judgment is proper when the movant establishes there is no genuine
issue of material fact and it is entitled to judgment as a matter of law.” Deeds v.
City of Marion, 914 N.W.2d 330, 339 (Iowa 2018) (quoting Goodpaster v. Schwan’s
Home Serv., Inc., 849 N.W.2d 1, 6 (Iowa 2014)). “We review the facts in the record
‘in the light most favorable to the nonmoving party’ and ‘draw every legitimate
inference in favor of the nonmoving party.’” Hollingshead, 937 N.W.2d at 618
(quoting Skadburg v. Gately, 911 N.W.2d 786, 791 (Iowa 2018)).
II. Discussion
The fighting issue on appeal is whether the McIntoshes demonstrated a
genuine issue of material fact on their claim for breach of implied warranty of
1 By the time of the summary judgment hearing, a crack in the city waterline had
apparently been ruled out as a potential cause of the seepage to the satisfaction
of the parties, leaving only the remaining three potential causes.
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workmanlike construction. The parties generally agree that the claim requires the
McIntoshes to prove five elements:
(1) The house was constructed to be occupied by the buyer
as a home;
(2) The house was purchased from a builder-vendor, who
had constructed it for the purpose of sale;
(3) When sold, the house was not reasonably fit for its
intended purpose or had not been constructed in a good and
workmanlike manner;
(4) At the time of purchase, the buyer was unaware of the
defect and had no reasonable means of discovering it; and
(5) By reason of the defective condition the buyer suffered
damages.
See Flom v. Stahly, 569 N.W.2d 135, 142 (Iowa 1997); Kirk v. Ridgway, 373
N.W.2d 491, 496 (Iowa 1985). The dispute here is whether there is a genuine
issue of material fact regarding the third element. The parties agree that, due to
complexities of house construction and causes of water seepage, an expert
witness is needed to establish the third element. The McIntoshes argue there is
no genuine issue of material fact and the element has been established as a matter
of law based on their expert’s opinion for which there is no competing expert
opinion. Classic Builders argues that the McIntoshes’ expert’s opinion does not
generate a genuine issue of material fact, so the claim fails as a matter of law.
We agree with Classic Builders and the district court. In reaching this
conclusion, we acknowledge the McIntoshes’ point that their expert opines that
“more likely than not” the flooding in the basement was caused by one of several
possible problems with the basement. We further acknowledge this opinion from
their expert would be enough to generate a fact question if there were evidence
the possible problems identified by the expert existed. See Hansen v. Cent. Iowa
Hosp. Corp., 686 N.W.2d 476, 485 (Iowa 2004) (holding expert testimony
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indicating probability or likelihood of a causal connection is sufficient to generate
a fact question on causation). However, there is a fatal flaw in the McIntoshes’
efforts to generate a fact question. Their expert’s opinion was that the seepage
was caused by a crack in the house’s foundation, a crushed drain tile, or the house
being built below the water table. However, the McIntoshes presented no evidence
to generate a fact question that any of those three conditions actually existed.
Without evidence showing that the house actually had any of the conditions upon
which their expert’s opinion was based, the McIntoshes failed to generate a fact
question as to the third element of their cause of action. In resisting a motion for
summary judgment, the McIntoshes were required to produce “competent
evidence showing a prima facie claim.” See Slaughter v. Des Moines Univ. Coll.
of Osteopathic Med., 925 N.W.2d 793, 808 (Iowa 2019). Their expert’s opinion is
essentially the only evidence the McIntoshes produced to show Classic Builders
did not construct the house appropriately. They acknowledge that they did not
take further steps to identify what the specific cause of the water damage actually
was, nor that the house was not constructed in a workmanlike manner. Based on
the failure of the McIntoshes to generate a genuine issue of material fact that any
of the three conditions identified by their expert as possible causes of the seepage
actually existed, the district court properly granted Classic Builders’s summary
judgment motion and denied the McIntoshes’ own.
AFFIRMED.