IN THE COURT OF APPEALS OF IOWA

No. 14-1215

Filed July 9, 2015

BRUENING ROCK PRODUCTS, INC.,

Plaintiff-Appellant/Cross-Appellee,

vs.

HAWKEYE INTERNATIONAL TRUCKS,

Defendant-Appellee/Cross-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Winneshiek County, Margaret L. 

Lingreen, Judge.

A plaintiff appeals from the district court’s directed verdict in favor of the 

defendant company. The defendant cross-appeals. REVERSED AND 

REMANDED ON APPEAL; AFFIRMED ON CROSS-APPEAL.

Kevin J. Visser, Abbe M. Stensland, and Rae Kinkead of Simmons Perrine 

Moyer Bergman, P.L.C., Cedar Rapids, for appellant.

Steven J. Pace and Kelly A. Cwiertny of Shuttleworth & Ingersoll, P.L.C., 

Cedar Rapids, for appellee.

Heard by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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VAITHESWARAN, J.

The primary issue in this appeal is whether a jury verdict on a breach-ofcontract claim is supported by substantial evidence.

I. Background Facts and Proceedings

Bruening Rock Products, Inc. purchased trucks from Hawkeye 

International Trucks. In time, Bruening sued Hawkeye, alleging breach of its 

contract to provide trucks with a gross vehicle weight rating (“GVWR”) of 74,000 

pounds. The case was tried to a jury. At the close of Bruening’s evidence, 

Hawkeye moved for a directed verdict on several grounds, including a theory that 

Bruening’s real claim was one for breach of an implied warranty and the statute 

of limitations on this claim had long since expired. The district court reserved 

ruling on the motion. See Larkin v. Bierman, 213 N.W.2d 487, 490 (Iowa 1973) 

(stating the better practice is to reserve ruling on the directed verdict motion until 

after the jury has rendered verdict, so as to avoid retrial). The jury returned a 

verdict in favor of Bruening for $1,167,904.85. 

After trial, the district court took up the previously-reserved directed verdict 

motion and concluded Bruening “failed to generate substantial evidence of a 

breach of written contract term by [Hawkeye].” The court further concluded, “The 

evidence introduced may have supported claims for breach of implied warranty; 

however those claims were not timely made.” The court sustained the motion for 

directed verdict and entered judgment in favor of Hawkeye and against Bruening. 

Bruening appealed and Hawkeye cross-appealed.
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II. Appeal—Substantial Evidence

Bruening contends “substantial evidence supports the jury’s finding that 

[Hawkeye] expressly promised performance, and failed to deliver on that 

promise” and its “pled and proven contract claim cannot b[e] dismissed by the 

trial court in ruling on a motion for directed verdict.” Our review is for correction 

of errors at law. Determan v. Johnson, 613 N.W.2d 259, 261 (Iowa 2000). “A 

defendant’s motion for directed verdict should be denied if there is substantial 

evidence to support the plaintiff’s claim.” Hasselman v. Hasselman, 596 N.W.2d 

541, 545 (Iowa 1999).

Bruening sued Hawkeye under a single theory: breach of contract.1 The 

district court instructed the jury Bruening would have to prove the following:

1. The existence of a contract.

2. The terms of the contract, including a term that 

Defendant would provide trucks with a gross vehicle 

weight rating (GVWR) of 74,000 pounds.

3. The Plaintiff has done what the contract requires.

 

1 Hawkeye reiterates that Bruening’s claim was miscast as a breach-of-contract claim 

rather than a breach-of-implied-warranty claim. In its view, “As it is not disputed that a 

five year statute of limitations applies to implied warranty claims and the five year statute 

of limitations for any implied warranty for these trucks has long since expired, the district 

court was correct in finding that any claims based on the implied performance terms of 

the deal would be time barred.” Hawkeye did not file a motion to dismiss or raise the 

claimed statute-of-limitations defense in its answer or amended answer. See Rieff v. 

Evans, 630 N.W.2d 278, 289 (Iowa 2001) (stating defense could be raised in a motion to 

dismiss); Porter v. Good Eavespouting, 505 N.W.2d 178, 182 (Iowa 1993) (stating 

defendants had duty to raise statute-of-limitations defense in pleadings). Accordingly, 

the defense was waived. Porter, 505 N.W.2d at 182 (“Because the limitations defense 

was not raised, the defendant waived it.”); Conklin v. Towne, 216 N.W. 264, 266 (Iowa 

1927) (“The statute of limitations was not set up as a defense until appellant had rested 

his case. If not taken advantage of by demurrer or answer, it will be deemed waived.”);

see generally Bond v. Cedar Rapids Television Co., 518 N.W.2d 352, 355 (Iowa 1994)

(“We have defined an affirmative defense as ‘one resting on facts not necessary to 

support plaintiff’s case.’ Under Iowa rule of civil procedure 101 these matters must be 

specially pleaded, and a motion for directed verdict or a motion for judgment 

notwithstanding the verdict do not qualify as special pleadings. Without such a pleading, 

the question may not be entertained on appeal.” (citations omitted)). 
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4. The Defendant has breached the contract, by failing to 

provide trucks which met the terms of the contract.

5. The Amount of any damage the Defendant has caused.

The record contains substantial evidence to support these elements. 

First, there is no question the parties entered into a contract. Bruening, an 

operator of rock quarries, needed trucks to haul rock from one of its underground 

mines. Bruening negotiated with Hawkeye to design and manufacture four trucks 

capable of hauling approximately twenty-five tons of rock from the underground 

mines. Following initial discussions, Hawkeye presented a proposal listing the 

trucks’ specifications. Bruening accepted the proposal and the trucks were 

manufactured by another company, Navistar. 

Second, Hawkeye essentially concedes the existence of substantial 

evidence establishing the GVWR as a term of the contract. The proposal stated 

the trucks would carry a GVWR of 74,000 pounds, meaning the trucks could haul 

74,000 pounds, including the weight of the truck. See Iowa Code § 321.1(29)(c)

(2009) (defining “gross vehicle weight rating” as “weight specified by the 

manufacturer as the loaded weight of a single vehicle.”). During the 

manufacturing process, Navistar suggested certain changes, which were 

accepted by Bruening. At no time was the trucks’ GVWR modified to less than 

74,000 pounds. 

Hawkeye instead focuses on the import of the GVWR. In its view, the 

GVWR of 74,000 pounds was not a “performance term” because “there was no 

evidence at all that the inclusion of GVWR on the documents constituted a 

promise the trucks would perform in any particular manner.” A reasonable juror 

could have found otherwise.
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Bruening’s president testified he informed a Hawkeye representative “I 

want to haul around 25 ton.” He stated, the 74,000 pound GVWR means “this 

truck is designed with the weight of the load, with the weight of the truck, not to 

exceed 74,000 pounds.” In other words, “the weight of the truck and then the 

load in it cannot be over 74,000 pounds. That’s what the truck is rated at.” A 

Bruening mechanic similarly testified the GVWR was important “[s]o that we 

know what—how big a load we can put in the vehicle.” 

Hawkeye confirmed this understanding. A Hawkeye employee who 

ordered the trucks from Navistar testified Bruening approved certain changes to 

the trucks “[i]f it didn’t affect our gross vehicle weight rating.” 

In short, substantial evidence established the 74,000 pound GVWR was 

more than a boiler-plate rating; it was a specific, negotiated term affecting the 

performance of the vehicle. See generally Iowa Code § 554.2313(1)(b) (“Any 

description of the goods which is made part of the basis of the bargain creates an 

express warranty that the goods shall conform to the description.”).

The third element—Bruening’s performance of the contract—is essentially

undisputed. Bruening paid for the trucks and accepted delivery of them.

Hawkeye vigorously disputes the fourth element—whether there was a 

breach. In its view, Bruening failed to show “the actual breach of the GVWR 

rating itself.” Again, a reasonable juror could have found otherwise. 

Bruening representatives testified the trucks failed to perform. 

Specifically, the wheel rims cracked and the studs holding the rims 

malfunctioned.
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Hawkeye initially believed Bruening was overloading the trucks. Bruening

dispelled this concern by regularly weighing loaded trucks and recording lower 

than 74,000 pound weights. Bruening representatives testified they never 

exceeded the 74,000 pound GVWR in transporting rocks. 

Hawkeye also suggested the breakdowns could have resulted from other 

factors. Again, Bruening countered this suggestion with evidence of regular,

routine maintenance on the trucks. The jury was free to credit Bruening’s

evidence. Blume v. Auer, 576 N.W.2d 122, 125-26 (Iowa Ct. App. 1997). Based 

on this circumstantial evidence, a juror reasonably could have found the GVWR 

was not as represented and Hawkeye breached this term of the contract. See 

Iowa R. App. P. 6.904(3)(p) (stating direct and circumstantial evidence are 

equally probative). 

We are left with Bruening’s proof of damages. In its cross-appeal, 

Hawkeye contends Bruening’s evidence of lost profits was speculative. The jury 

reasonably could have found otherwise. See Field v. Palmer, 592 N.W.2d 347, 

353 (Iowa 1999) (stating “if the uncertainty is only in the amount of damages, a 

fact finder may allow recovery provided there is a reasonable basis in the 

evidence from which the fact finder can infer or approximate the damages” (citing 

Sun Valley Lake Ass’n v. Anderson, 551 N.W.2d 621, 641 (Iowa 1996))); Harsha 

v. State Sav. Bank, 346 N.W.2d 791, 798 (Iowa 1984) (upholding “generous” jury 

verdict for breach of contract, which was “within the evidence”).
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Bruening provided the court with extensive documentation and testimony 

concerning the amount of damages.2 Bruening’s chief financial officer discussed 

the documents and testified to Bruening’s damages. This amounted to 

substantial evidence in support of the damage award. 

III. Cross-Appeal Issues

On cross-appeal, Hawkeye contends the district court erred in rejecting 

several remaining grounds in support of its motion for directed verdict. We have 

considered the grounds and have either addressed them in connection with our 

discussion above or discern no error in the district court’s conclusions and affirm 

without further discussion.

IV. Disposition

Because the jury verdict was supported by substantial evidence, we 

reverse the grant of Hawkeye’s motion for directed verdict and remand for 

reinstatement of the verdict. We affirm on all issues raised in the cross-appeal.

REVERSED AND REMANDED ON APPEAL; AFFIRMED ON CORSSAPPEAL.

 

2 Hawkeye contends the district court should have excluded some of the evidence 

because, in its view, Bruening intentionally destroyed certain maintenance records. The 

district court admitted the evidence but instructed the jury on spoliation. We discern no 

abuse of discretion in this ruling. Hall v. Jennie Edmundson Mem’s Hosp., 812 N.W.2d 

681, 685 (Iowa 2012).