Justin Boliver and Nicole L. Boliver v. Larry Kester

IN THE COURT OF APPEALS OF IOWA

No. 15-1973
Filed August 17, 2016

JUSTIN BOLIVER AND NICOLE L. BOLIVER,
Plaintiffs-Appellants,

vs.

LARRY KESTER,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Marshall County, John J. Haney,

Judge.

Property owners appeal the district court’s order denying their claim of

negligent misrepresentation by the property’s developer. AFFIRMED.

Gail E. Boliver and Merrill C. Swartz of Boliver Law Firm, Marshalltown, for

appellants.

William J. Lorenz of Moore, McKibben, Goodman & Lorenz, LLP,

Marshalltown, for appellee.

Considered by Vogel, P.J., and Doyle and Bower, JJ.
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DOYLE, Judge.

Property owners appeal the district court’s order denying their claim of

negligent misrepresentation by the property’s developer. On appeal, the property

owners assert the trial court erred in ruling that the developer’s supplying of

erroneous information to their plumbing subcontractor as to the location of the

sewer connection was not negligent and did not violate a duty of the developer to

provide accurate information. Upon our review, we find the district court’s

conclusion that the property owners failed to establish a claim of negligent

misrepresentation is supported by substantial evidence. Accordingly, we affirm.

I. Background Facts and Proceedings.

The facts underlying this case are generally undisputed. In 1998, Larry

Kester decided to create a residential housing development on a portion of the

eighty acres of land he owned in the Marshalltown area. To that end, Kester

hired an engineering firm, and its engineers designed a preliminary plat for the

creation of a subdivision named Cross Country Estates. The original preliminary

plat was approved by the city, and phases of development of the subdivision

subsequently began.

In 2004 a “service lateral form” was submitted to the city concerning the lot

in question (Lot 6).1 The form, signed by Kester, detailed information concerning

the location of Lot 6’s sewer connection, such as the location of nearby manholes

and distances thereto.

1
The lot was originally designated Lot 57 in the preliminary plats and was later
renumbered as Lot 6 of the Sixth Addition in the final plat, dated July 11, 2006.
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In 2006, before the sixth phase of the development of Cross Country

Estates—which included Lot 6—was scheduled to begin, the preliminary plat for

that area was modified by Kester’s engineers at his request. One of the

modifications was the realignment of Travis Drive and its “T” intersection at

Seventh Avenue. Lot 6 is located at the southern corner of the two streets. On

the original plan, Travis Drive met Seventh Avenue at a slight angle, whereas

Travis Drive is perpendicular to Seventh Avenue in the modified plan. In the

redesign, the city requested that the nearby manhole’s location on Seventh

Avenue be moved south to the center of the Travis Drive and Seventh Avenue

intersection. Kester’s engineers did so, and the drawing designs for the

modification were all submitted to and are on file with the city. The city approved

the plan. Another service lateral form detailing the relocation of the manhole was

not submitted to the city, though the city never requested one.

Kester sold Lot 6 to a third party in 2008, who in turn sold it to Justin

Boliver and Nicole Allen, now Nicole Boliver, sometime in 2012. After their

purchase, the Bolivers hired a general contractor to build a home on the lot. The

general contractor had plans drawn up, and he applied to the city for a building

permit. As part of that process, the general contractor received from the city a

copy of the filed 2004 service lateral form.

The general contractor subcontracted with a plumbing company to

connect the house to the sewer main. A licensed master plumber and a

journeyman plumber, both employed by the plumbing company, worked on the

job. The plumbers received from the general contractor a copy of the 2004
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service lateral form, and they verified with the city that what they had been given

was correct.

The plumbers dug from the house towards the location where the form

stated the sewer connection would be found. They found nothing, but they

continued to dig. Kester saw the trenching going on at the construction site, and

he stopped and visited with “a couple of persons that were there working on the

trench.” After learning the plumbers were having a problem, Kester went home

and brought back a copy of the 2004 service lateral form. The plumbers advised

Kester they already had a copy of the form. Kester indicated the plumbers “really

weren’t interested in what [he] had to offer.” Kester did not mention the changed

location of the manhole or provide the more recent designs to the plumbers or

general contractor.

Approximately sixteen days after the search began—including eleven

working days—the sewer connection was found. The trench made during the

plumbers’ search was seventy- to eighty-feet long, ten- to twelve-feet wide, and,

in some places, eighteen-feet deep. The original estimated cost of $2500 to

connect the house to the water and sewer lines skyrocketed to an actual amount

just under $15,000. At some point during their search, the plumbers contacted

the city engineer, but the engineer told them he was uncertain where the

connection was. The city engineer came to the site after the trench had already

been dug, and he suggested where to look for the connection. Beyond Kester’s

stop at the construction site, neither he nor his engineers were contacted by the

plumbers during their search.
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In August 2014, the Bolivers filed suit against Kester. They asserted

claims of negligence and, after amending their petition, of negligent

misrepresentation. Following a trial to the district court, the court entered its

order concluding the Bolivers failed to prove their claims.

The Bolivers now appeal, contending the district court erred in so finding.

They assert “Kester gave erroneous information to [the contractors] that caused

them to spend time and money digging for a sewer connection at the wrong

place. Kester violated his duty by negligent[ly] misrepresenting the location of

the sewer hookup.”

II. Standard of Review.

We review the trial court’s decision for correction of errors at law. See

Iowa R. App. P. 6.907; see also Brokaw v. Winfield-Mt. Union Cmty. Sch. Dist.,

788 N.W.2d 386, 390 (Iowa 2010). “Under this scope of review, the trial court’s

findings of fact have the force of a special verdict and are binding on us if

supported by substantial evidence,” viewing the evidence “in the light most

favorable to the trial court’s judgment.” Brokaw, 788 N.W.2d at 388 (citation

omitted). “Evidence is not insubstantial merely because we may draw different

conclusions from it; the ultimate question is whether it supports the finding

actually made, not whether the evidence would support a different finding.” Id. at

393 (citation omitted).

III. Negligent Misrepresentation.

“Generally, if a negligent misrepresentation results in personal or property

damage, courts treat it the same as other negligence claims.” Van Sickle Constr.

Co. v. Wachovia Commercial Mortg., Inc., 783 N.W.2d 684, 690 (Iowa 2010).
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“However, when the negligent misrepresentation only interferes with intangible

economic interests, courts have developed more restrictive rules of recovery.”

Pitts v. Farm Bureau Life Ins. Co., 818 N.W.2d 91, 111 (Iowa 2012) (citation

omitted). Specifically, “Iowa has adopted the definition of the tort of negligent

misrepresentation found in the Restatement (Second) of Torts,” which provides,

in relevant part:

One who, in the course of his business, profession or
employment, or in any other transaction in which he has a
pecuniary interest, supplies false information for the guidance of
others in their business transactions, is subject to liability for
pecuniary loss caused to them by their justifiable reliance upon the
information, if he fails to exercise reasonable care or competence in
obtaining or communicating the information.

Bagelmann v. First Nat’l Bank, 823 N.W.2d 18, 30 (Iowa 2012) (quoting

Restatement (Second) of Torts § 552(1) (Am. Law. Inst. 1977)). Based upon the

Iowa Supreme Court’s interpretation of section 552 over the years, it can be said

that a plaintiff must establish each of the following elements to support a claim of

negligent misrepresentation:

(1) [T]he defendant was in the business or profession of supplying
information to others; (2) the defendant intended to supply
information to the plaintiff or knew that the recipient intended to
supply it to the plaintiff; (3) the information was false; (4) the
defendant knew or reasonably should have known that the
information was false; (5) the plaintiff reasonably relied on the
information in the transaction that the defendant intended the
information to influence; (6) and the false information was the
proximate cause of damage to the plaintiff.

McLeodUSA Telecomm. Servs., Inc. v. Qwest Corp., 469 F. Supp. 2d 677, 692

(N.D. Iowa 2007) (discussing the evolution of the elements of negligent

misrepresentation under Iowa law).
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The Bolivers argue on appeal “Kester gave erroneous information to [the

Bolivers’] workers that caused them to spend time and money digging for a

sewer connection at the wrong place.” However, viewing the evidence in the

light most favorable to the district court’s judgment, the court’s ruling is clearly

supported by substantial evidence.

After hearing the evidence at trial, the district court found “Kester did not

supply any information” and the plumbers were “not interested in anything

[Kester] might have had to offer.” Both of these findings go directly to the

necessary elements of the claim: if no information was provided, there could be

no misrepresentation by Kester. Moreover, even if Kester did supply information

to the plumbers, it was not provided to them as part of Kester’s business. Finally,

even if the information was so provided, the plumbers did not rely upon the

information.

Kester gave a copy of the 2004 service lateral form to the plumbers

working at the construction site. But, even assuming without deciding Kester did

supply information to the plumbers within the meaning of section 552 of the

restatement, there certainly was no testimony by the plumber that the plumbers

relied upon the information Kester provided. The Bolivers’ own argument

demonstrates there was no reliance upon the information provided by Kester.

They assert, among other things: “The fact that the [Bolivers’] workers already

had similar information[] does not change the fact that Kester’s information

damaged [the Bolivers].” The plumbers did not have “similar” information—the

plumbers had the exact same information. Notably, they had already begun

digging before Kester happened by and offered to help. Furthermore, the
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plumbers “really weren’t interested in what [Kester] had to offer.” There simply

was no evidence offered to show that the Bolivers or the plumbers relied upon

the information provided by Kester; the Bolivers are in the same place they would

have been if Kester had opted not to stop by the construction site.

IV. Conclusion.

Upon our review, we find the district court’s conclusion that the Bolivers’

failed to establish a claim of negligent misrepresentation is supported by

substantial evidence. Accordingly, we affirm. Costs on appeal are assessed to

the Bolivers.

AFFIRMED.