IN THE COURT OF APPEALS OF IOWA

No. 16-0923

Filed July 6, 2017

CITY OF RIVERSIDE,

Plaintiff-Appellant,

vs.

METRO PAVERS, INC. and DELONG CONSTRUCTION, INC.,

Defendants-Appellees.

________________________________________________________________

Appeal from the Iowa District Court for Washington County, Annette J. 

Scieszinski, Judge.

The City of Riverside appeals the district court’s ruling granting summary 

judgment in favor of Metro Pavers, Inc. and DeLong Construction, Inc. 

AFFIRMED. 

Eric D. Tindal of Nidey Erdahl Tindal & Fisher, Marengo, for appellant.

Kristen H. Frey and Lanny M. Van Daele of Kennedy, Cruise, Frey & 

Gelner, L.L.P., Iowa City, for appellee Metro Pavers.

Michael J. Moreland and Nicholas T. Maxwell of Harrison, Moreland, 

Webber & Simplot, P.C., Ottumwa, for appellee DeLong.

Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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DANILSON, Chief Judge.

The City of Riverside (Riverside) appeals the district court’s ruling granting 

summary judgment in favor of Metro Pavers, Inc. (Metro Pavers) and DeLong 

Construction, Inc. (DeLong). Riverside contends the matter should be viewed as 

a discovery dispute and the district court erred in failing to consider the available 

range of sanctions. On our review of the record, we find the district court did not 

err in granting summary judgment and therefore affirm.

I. Background Facts and Proceedings.

Riverside filed the petition in this matter on February 3, 2015, alleging 

Metro Pavers breached the parties’ contract by improperly constructing a street, 

Commercial Drive, causing cracking of the surface of the street. Metro Pavers 

filed a third-party petition against its subcontractor, DeLong. This lawsuit is the 

second lawsuit filed by Riverside with respect to this dispute. Riverside 

previously filed a petition against Metro Pavers in 2012 raising the same claims,

but the case was dismissed for want of prosecution after Riverside failed to

timely disclose an expert witness or the amount of damages sought. Riverside 

subsequently filed the petition in this case. 

In order to meet its burden of proof in this case, Riverside was required to 

present evidence establishing Metro Pavers’ and DeLong’s noncompliance with 

the design specifications called for by the contract. All the parties agree 

Riverside could not meet its burden of proof and establish damages in this case 

without expert testimony. The parties’ discovery plan required Riverside to 

designate all expert witnesses by January 18, 2016, prior to the August 16, 2016 

trial date. This deadline was intended to allow time for the subsequent 
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designation of expert witnesses by Metro Pavers and DeLong prior to trial. 

However, Riverside made no initial disclosures as required by Iowa Rule of Civil 

Procedure 1.500 and did not designate any expert witnesses by the January 18 

deadline. 

DeLong filed a motion for summary judgment on March 25, 2016, 

requesting the district court grant summary judgment because Riverside could

not prevail on its cause of action without an expert witness.

1

 Riverside filed an 

untimely resistance to the motion for summary judgment on April 21, 2016, one 

day prior to the summary-judgment hearing. Riverside attached an expertwitness affidavit to the resistance. The district court granted the motion for 

summary judgment in a ruling entered April 26, 2016. The court held:

[Riverside] made no initial disclosures as required by Iowa Rule of 

Civil Procedure 1.500, and as implemented through the discovery 

plan, until a filing was made on the eve of hearing.

Moreover, [Riverside] did not designate any expert witness 

by the January 18, 2016 deadline (factored as 210 days before the 

August 16, 2016 trial date). In this case, [Riverside] must provide 

expert testimony to carry its burden to prove causation for the 

cracked street concrete which is the subject of this suit. Also, 

[Riverside] is unable to prove the nature and extent of the damages 

it claims—without an expert witness. In sum, [Riverside]’s nonparticipation in case preparation leaves it without [the] ability to 

support its case in chief on the breach-of-contract claims 

asserted . . . .

[Riverside]’s failure to prosecute this case in any manner 

before filing a resistance to the motion for summary judgment on 

the eve of hearing, frames a scenario where the other parties 

cannot be treated fairly. Trial looms on a[n] August 16th jury 

assignment. If [Riverside]’s tardy designation of an expert were to 

be permitted, the trial date would necessarily have to be postponed 

to accord the party defendants fair opportunity to conduct discovery 

and declare their own experts. Justice is not served by that delay, 

particularly in consideration of the past practice of [Riverside] in 

 

1 Metro Pavers filed a joinder in DeLong’s motion for summary judgment on April 12, 

2016.
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failing to prosecute a prior action based upon the same cracked 

concrete! No legal justification is shown to excuse [Riverside]’s 

conduct in this case.

. . . .

. . . When considering the pleading record in a light most 

favorable to . . . Riverside, judgment of dismissal is appropriate. 

[Riverside] stands unable at this point in time to sustain its burden 

of proof under the prevailing law of this case, and supporting Iowa 

law. There is no basis in fact or in law to make an exception to the 

clear rules which require a plaintiff to prosecute its cause of action 

in a timely manner.

Riverside now appeals.

II. Standard of Review.

Our review of the district court’s summary judgment ruling is for correction 

of errors at law. Stevens v. Iowa Newspapers, Inc., 728 N.W.2d 823, 827 (Iowa 

2007). “Summary judgment is appropriate only when the entire record 

demonstrates that no genuine issue of material fact exists and the moving party 

is entitled to judgment as a matter of law. We review the evidence in the light 

most favorable to the nonmoving party.” Id. (citations omitted).

III. Analysis.

Iowa Rule of Civil Procedure 1.500(1) provides: 

[A] party must, without awaiting a discovery request, provide to the 

other parties: 

(1) The name and, if known, the address, telephone 

numbers, and electronic mail address of each individual likely to 

have discoverable information, along with the subjects of that 

information, that the disclosing party may use to support its claims 

or defenses, . . . .

The rules additionally provide:

If a party fails to provide information or identify a witness as 

required by rule 1.500, 1.503(4), or 1.508(3), the party is not 

allowed to use that information or witness to supply evidence on a 

motion, at a hearing, or at trial, unless the failure was substantially 

justified or is harmless.
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Iowa R. Civ. P. 1.517(3)(a). Rule 1.517(3)(a) allows the court to impose

alternative sanctions “[i]n addition to or instead of this sanction . . . after giving an 

opportunity to be heard.”

After giving Riverside an opportunity to be heard at the hearing on the 

motion for summary judgment, the district court determined Riverside could not 

present expert testimony because the only expert-witness disclosure by 

Riverside occurred just one day prior to the hearing and well past the deadline for 

such disclosure as required by the discovery plan and rule 1.500. The court 

determined allowing late designation of Riverside’s expert witness would require 

a continuance of the trial date and would not serve justice because the 

defendants would be prejudiced, and Riverside could not provide a justifiable 

excuse for the delay. The court acknowledged that without expert testimony 

Riverside could not establish causation for the cracked concrete or damages. 

Therefore, because Riverside’s inability to provide expert testimony was fatal to 

its cause of action as a matter of law, the district court granted the motion for 

summary judgment. 

We agree with the court’s ruling. The record demonstrates Riverside

cannot sustain its cause of action as a matter of law. Without expert testimony, 

its cause of action necessarily fails. We have previously upheld a similar 

determination. See Karnes v. Keffer Overton Assocs. Inc., No. 00-0191, 2001 

WL 1443512, at *2 (Iowa Ct. App. Nov. 16, 2001) (“We agree with the district 

court that an expert was necessary in this case and that failure to designate one 

was appropriate grounds for summary judgment in favor of the defendants.”). 
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Riverside did not take any meaningful steps to prosecute this second 

cause of action against the defendants. It did not make initial disclosures, did not 

designate an expert witness within the ample time provided by the discovery

plan, and did not request an extension of either deadline. Riverside did not even 

file its resistance to the motion for summary judgment in a timely manner—and 

only then did Riverside disclose its expert witness in an attached affidavit. 

Riverside did not provide a substantially-justified explanation for its failure 

to comply with the discovery deadlines and prosecute this matter. At the hearing 

on the motion for summary judgment, counsel for Riverside explained he 

believed he had already filed the expert designation. However, counsel for 

Riverside certainly learned that such designation was not filed by DeLong’s 

motion for summary judgment and still did not attempt to provide any expert 

designation until one day prior to the summary-judgment hearing. This failure is 

especially egregious considering Riverside’s first cause of action arising from this 

dispute was dismissed for the exact same reason.

We conclude the district court did not err in refusing to consider 

Riverside’s late-filed expert-witness affidavit and granting summary judgment on 

the basis Riverside’s claim fails as a matter of law without expert testimony. 

Additionally, even if this issue is viewed as a discovery dispute as 

Riverside suggests, the district court did not abuse its discretion. See Keefe v. 

Bernard, 774 N.W.2d 663, 667 (Iowa 2009) (stating our standard of review of a 

district court’s discovery ruling is for abuse of discretion). Riverside asserts the 

court abused its discretion because it failed to consider alternative sanctions for 

Riverside’s failure to comply with the discovery plan and rule 1.500. However, 
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the district court’s summary-judgment ruling clearly reflects the court considered 

Riverside’s request for a continuance and determined that alternative would be 

improper in this case. In compliance with rule 1.517(3)(a), the court provided 

Riverside an opportunity to be heard and determined it would be inappropriate 

based on these facts to allow Riverside’s late expert-witness designation. Where 

Riverside repeatedly failed to meet necessary discovery deadlines and to take 

meaningful steps to pursue this case, we cannot find the district court’s ruling 

constituted an abuse of discretion.

We conclude the district court did not err in granting summary judgment in 

favor of DeLong and Metro Pavers.

AFFIRMED.