IN THE COURT OF APPEALS OF IOWA

No. 14-0165

Filed July 9, 2015

DONNA CANAVAN,

Plaintiff-Appellant,

vs.

JOE W. CONLAN, MICHAEL SAUSER,

and CS & R, LLC d/b/a 

CORNERSTONE HOMES,

Defendants-Appellees.

________________________________________________________________

Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, 

Judge.

A home buyer appeals from an adverse judgment following jury trial of her 

breach-of-contract, negligence, and misrepresentation claims against the seller. 

AFFIRMED.

Peter C. Riley of Tom Riley Law Firm, P.L.C., Cedar Rapids, for appellant.

Jason J. O’Rourke and Benjamin Patterson of Lane & Waterman LLP, 

Davenport, for appellees.

Heard by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
2

DANILSON, C.J.

A home buyer appeals from an adverse judgment following jury trial of her 

breach-of-contract, negligence, and misrepresentation claims against the seller. 

Donna Canavan contends the trial court (1) erred in not granting a new trial when 

the jury’s verdict was not sustained by sufficient evidence; (2) erred in failing to 

grant a directed verdict in regard to the individual liability of defendants Michael 

Sauser and Joe Conlan; (3) erred in submitting two special verdict questions to 

the jury; and (4) erred in instructing the jury regarding mitigation. She also

contends she is entitled to a new trial because opposing counsel engaged in 

misconduct. Addressing only those claims properly preserved, and viewing the 

evidence in the light most favorable to the prevailing party, we conclude 

substantial evidence supports the jury’s verdicts. The trial court did not abuse its 

discretion in its evidentiary rulings or in denying the posttrial motions. We 

therefore affirm. 

I. Background Facts and Proceedings. 

The jury could reasonably have found the following: Cornerstone Homes 

is an Iowa limited liability company owned by Michael and Kara Sauser and Joe 

and Gail Conlan. The company was formed to build houses in the Cedar Rapids 

area. In 2006, Cornerstone built a house at 1704 Wolf Drive Northwest, Cedar 

Rapids, and in August 2006, a certificate of occupancy was issued, which 

confirmed the house had been inspected and it complied with the requirements 

of the building code. 

Donna Canavan visited the Wolf Drive house for the first time in August 

2006 and learned that Cornerstone was the entity selling the house. Canavan 
3

made an initial offer to purchase the house, which was less than the asking price,

and the offer was rejected. Canavan visited the house again on September 11, 

2006. She asked her realtor, Luann Steenhoek, to prepare another offer; 

Steenhoek prepared a purchase/sale contract, which was signed by Canavan as 

buyer and Joe Conlan and Michael Sauser as sellers that same day. The 

purchase agreement allowed Canavan to have a whole-house inspection. 

Canavan had the inspection performed. On September 25, 2006, Canavan, 

Steenhoek and Sauser attended a final walk-through of the house. At this time, 

Canavan had her first conversation with Sauser. Canavan asked Sauser if there 

were any easements on the property and if she could put a fence to the 

boundary. Sauser told her there were no easements on the property. Canavan 

identified three items during the final walk-through she wanted fixed, and

Cornerstone took care of the items. 

Closing was held on September 26, 2006. Cornerstone provided 

Canavan a one-year homeowner’s warranty in connection with the sale, which 

provides in part:

We spray the foundation walls with a tar waterproofing 

material. Although we make every effort to assure a dry basement, 

during times of excessive moisture, you may notice some 

dampness. . . . 

Cornerstone Homes will correct conditions that allow actual 

water to enter the basement unless the cause is improper 

installation of landscaping or failure to adequately maintain 

drainage.

After moving in, Canavan made arrangements to install a fence in her 

backyard. In the process of doing so, she learned there was an underground 

utility easement at the back of her lot. Canavan had a fence built on the 
4

easement line, ten feet off the back property line. The city would have allowed 

her to install the fence on the property line subject to its removal in the event the 

city needed to access the utility within the easement, but Canavan chose to avoid 

the potential of removing the fence. 

Canavan started to experience water in her basement in the spring of 

2007. She informed Sauser of the problem, but he did not address her concerns. 

On July 16, 2007, a “pretty bad” storm hit the Cedar Rapids area—Canavan “lost 

power and it rained like all get out.” She estimated three to four inches of rain fell 

in an hour. After the electricity went out, water entered her basement. Canavan 

called Sauser, and Sauser responded by going to Canavan’s house. Sauser 

stayed until after midnight helping Canavan remove the water out of the 

basement. Sauser returned to Canavan’s house the following day to help her

carry items upstairs from the basement and clean up the remaining water. 

Sauser also had a contractor check Canavan’s furnace and air conditioning unit 

and had another contractor help dry out her basement. Canavan was not 

charged for any of this work. Additionally, Cornerstone had a landscaper visit 

Canavan’s property on July 17 to look at the property, redo the window wells, relandscape the yard, and install drains in the backyard and tile up to the front of 

the house. Canavan had a discussion with Sauser the same day about trying to 

figure out what happened, and she acknowledged Sauser was willing to try and 

figure it out and help her. 

After the July 2007 storm, Canavan also noticed water standing in certain 

areas in her backyard, which she discussed with Sauser, and he agreed to put 

drain tile in the backyard to keep water from pooling in the future. On August 6, 
5

2007, a contractor installed tile in Canavan’s backyard. Cornerstone paid the 

contractor for the work.

About the same time in August 2007, Sauser asked Canavan to put 

together a complete list of any items she wanted addressed under the warranty. 

Canavan gave Sauser a list of ten items that included various items typically 

seen by Sauser because the house was newly constructed. Sauser testified the 

items were addressed “within days of him receiving the list” and Canavan voiced 

no unhappiness about the way they were handled. 

Sometime in the same month, Canavan contacted Tomlinson,

1

a company 

that performs basement waterproofing. Canavan received a proposal from 

Tomlinson to perform repairs to prevent further water from entering her 

basement. Canavan did not, however, hire Tomlinson to do the work. 

Still not satisfied with Sauser’s work or representations, Canavan 

contacted an attorney. On September 19, 2007, attorney James Holmes sent 

Cornerstone a letter on behalf of Canavan asking for an explanation how it was 

going to address the water drainage problems. Sauser called Holmes the day he 

received the letter and told him he would be happy to meet with Canavan, a 

contractor, and an engineer she selected to discuss the issues. On 

September 25, 2007, Holmes sent Sauser a letter attempting to schedule a time 

for the meeting. Sauser again called Holmes and reiterated his offer to meet with 

the attorney and anyone else Canavan wanted to address her concerns. Sauser 

 

1 The firm was named Tomlinson Cannon Cole in 2007. It later became Tomlinson 

Cannon. We will simply refer to the firm as Tomlinson. 
6

received no return phone call or further communications from Holmes because 

Canavan would not agree. 

Canavan alleged she had water in her basement again in 2008. Sauser 

was in the neighborhood frequently during that time building other houses. 

Canavan had Sauser’s home and cellular telephone numbers. However, she did 

not contact Sauser about the 2008 water problem. 

On September 25, 2008, Canavan filed the instant lawsuit, asserting 

claims of breach of contract, negligence, and misrepresentation. She sought 

punitive damages and the imposition of personal liability upon Conlan and 

Sauser.

On August 27, 2009, Canavan informed Sauser (through their respective 

attorneys) she was experiencing water in her basement. Sauser went to 

Canavan’s home and took a concrete contractor, Rob McAllister of M.D. 

Concrete, with him. Sauser and McAllister presented Canavan with “a plan that 

could take care of the basement situation for her. She felt good about it, but 

needed to converse with her attorney first before we could proceed.”

Beginning on August 28, 2009, and until October 2011, Cornerstone 

repeatedly offered to hire a contractor to fix the water intrusion at no cost to 

Canavan. Canavan did not allow the work to be done, nor did she hire anyone 

on her own. A mediation session was held in October 2011, and an agreement 

reached, after which Cornerstone hired Tomlinson to do repairs on Canavan’s 

home. Tomlinson worked with Randy Van Winkle, an engineer Canavan

selected, to evaluate a plan to address the water intrusion. Tomlinson proposed 

installation of new foundation drains and additional sump pumps. Van Winkle 
7

concluded the proposed system was “the most likely and most appropriate 

method to ameliorate the water intrusion in [the] basement,” and recommended 

proceeding with the repair. Tomlinson completed the work in December 2011

and provided a warranty in connection with its work. Cornerstone paid 

Tomlinson; Canavan was not required to pay for any of the repairs. 

In October 2012, Canavan called Tomlinson back to the house to address 

a water problem that purportedly occurred in September 2012. The basement 

was dry when Tomlinson representative Russel Keeler arrived, which made it 

difficult for Tomlinson to determine what caused the asserted September water 

intrusion. Keeler informed Canavan’s attorney’s office that Tomlinson remained 

“willing to work on fixing the problem if—as soon as we knew there was 

something going on.” Tomlinson was not called out to the property again until 

June 14, 2013. Canavan allowed Tomlinson to do additional work later in 2013. 

Tomlinson continues to stand by its warranty. 

Canavan’s claims of breach of contract (asserting defendants breached 

the one-year home warranty by not fixing the water intrusion problems), 

negligence (in the design and construction of the house), and misrepresentation

(based on Sauser’s statements that there were no easements) proceeded to a 

jury trial on September 30, 2013. The defendants moved in limine for a ruling 

limiting Canavan’s proposed witness testimony concerning damages, specifically 

objecting to untimely disclosed expert witness testimony about diminution in 

value.2 Canavan argued the proposed testimony by the listing realtor LuAnn 

 

2 Defendants’ counsel argued the realtor “was disclosed as a witness who was going to 

testify as a realtor as what she has done, as the fact that she listed, and that she had 
8

Steenhoek3 was not expert testimony, and the realtor’s attempts to sell the house 

were relevant to the issue of damages. Canavan also asserted the house had no 

value because it could not be “fixed.” The court ruled it would allow the realtor to 

testify about “what efforts that she made to sell the property and if she said she’s 

not able to sell it.”

Also in their motion in limine, the defendants argued that any testimony 

about the house being in foreclosure was “inadmissible because it’s not part of 

the recoverable elements of damages in a construction defect claim.” The court 

asked Canavan’s counsel about the relevance of foreclosure, and counsel 

responded, 

I think it’s relevant because she [Canavan] has a problem 

with her house that is not fixable and, therefore, she ultimately 

figured she could no longer live there. As a result of the fact that 

she could not afford to pay rent and a mortgage and a second 

mortgage payment, her house went in foreclosure and that affects 

her ability to try and sell it for some discounted type of price on a 

short sale. It can’t be sold.

The court ruled the fact the house was in foreclosure was irrelevant to the 

defective construction or the breach of contract claim, “[s]o we won’t hear 

anything about that.”

At trial, Steenhoek testified the house had been shown twenty to twentyfive times and no offers had been made. She stated that if a person was to go 

into the basement of the house today, one would see

 

seen water in the basement. Fine. She can testify to all that.” However, counsel 

asserted, “She can’t come in now and start offering all these opinions that have never 

been disclosed.” 

3 By the time of trial, Canavan had moved out of the house, ceased making payments on 

it, and the house was for sale. 
9

the inside of the basement floor, the perimeter, has the concrete 

that’s been cut out and there’s something below the concrete—I 

imagine it’s tiling—all around the perimeter and down the middle of 

the foundation. And there’s the original sump pump that was there 

when she bought it, the pit. And now there’s two additional sump 

pits with pumps in it. So there’s three pits now.

Steenhoek testified the house was not saleable. On cross-examination,

defendants’ counsel questioned Steenhoek about having had only one open 

house in trying to sell the property. At Canavan’s counsel’s behest, a discussion 

was held outside the presence of the jury. Canavan’s counsel asserted that 

defense counsel “knew full well the reason why she hadn’t had any open houses”

was because the house was in foreclosure, and argued, “I believe [defense 

counsel] has opened the door on the fact that it is in short sale and in foreclosure 

. . . but she’s prohibited from giving that explanation because of the court’s order 

in limine.” The trial court ordered a recess. Upon resuming the proceedings, the 

court stated:

When we broke we were discussing this issue regarding the 

cross-examination of Ms. Steenhoek, and I thought about this and 

I’ve pretty much been put in a position where whatever decision I 

make it’s pretty much an invitation to introduce error to this trial, 

something that I think could have easily been addressed before it 

came up rather than after, so I’m really not very pleased about that. 

But we can’t unring that bell. It’s obvious to me that, [defense 

counsel], you knew that this line of questioning at least got 

intertwined with an issue that was clearly part of a limine ruling, a 

limine motion that you brought up, and instead of giving the court a 

heads up and giving me a way to deal with this before we got this 

out in front of the jury, we went down this road. And now, again, as 

I said, I’m pretty much put in a position where whatever decision I 

make going forward here is an invitation of error down the road. 

But I’ve thought about it, and I feel that the lesser of the two 

potentially negative decisions here is, [plaintiff’s counsel] Mr. Riley, 

I’m going to let you ask her why she didn’t have any open houses, 

but I’m not going to let her state as one of the reasons the short 

sale/foreclosure. I’ve read this transcript. She indicates the 

appearance of the basement, the sump pump issue that she’s 
10

already talked about. She indicates here in her deposition a 

concern of, you know, what if it’s a rainy day, that sort of thing. You 

can certainly ask her about that. But I limined out the foreclosure 

issue because it is so completely irrelevant to the issues in this 

case and it invites so many tangential issues and potentially invites 

the jury to rely on the motion [sic] rather than facts that I’m not 

going to allow the witness to state the short sale and foreclosure as 

one of the reasons why she didn’t have an open house. 

Canavan’s counsel made an offer of proof, wherein Steenhoek stated one of the 

reasons she did not have more open houses was because “I’m in this to make 

money, and Donna’s house is not as saleable as other properties as I have 

because of the basement and being in a short sale/foreclosure.” Steenhoek was 

cautioned not to mention the foreclosure when questioning resumed. On 

redirect, Steenhoek was asked why she “did not feel that Miss Canavan’s house 

was an appropriate candidate for an open house,” to which she replied:

Well, number one, it was vacant. Number two would be the 

basement. I couldn’t predict if it was going to rain and if there 

would be water in the basement. I wouldn’t want to have an open 

house if it was a wet basement, the weather. And just being busy 

with other open houses. 

During trial, Thomas Hart, the Public Health Environmental Supervisor 

with the Linn County Board of Health, testified that he visited Canavan’s property 

in August 2007 and returned to the property in 2009. Hart concluded the water 

intrusion in the basement was caused by a high “sand lens.” He explained a

sand lens is a phenomenon where soils are different; some of the soil under the 

house may be restrictive and some very permeable. When more permeable soils 

such as sand conduit water, they can act like a pipeline, which effect is called a 

sand lens. According to Hart, a sand lens could be overlooked in the building

process because it is a random occurrence and can only be determined with 
11

certainty by excavation. Hart also testified that he was very familiar with 

Tomlinson and he was of the opinion that Tomlinson was competent to resolve 

any water problem caused by a sand lens. 

Sauser testified he estimated he had been involved in the construction of 

approximately 400 homes throughout his career. He had never experienced a 

sand lens before this situation and, in fact, had never even heard of them. 

Sauser testified there was no indication during the construction of the home that 

the sand lens was present.

Sauser also testified that at the time he told Canavan there were no 

easements on the property, “I did not intend to deceive her. I was only telling her 

what I knew.” Sauser stated that when Canavan later talked to him about 

building a fence to the back boundary of her property, Sauser called Deanna 

Thomas with the City of Cedar Rapids, who advised a fence could be built to the 

boundary. Sauser assumed her comment meant there was no easement. A 

utility easement does run along the back of Canavan’s property. 

The defendants moved for directed verdict on claims of negligence, 

punitive damages, and misrepresentation. With respect to the negligence claim, 

the defendants asserted it was barred by the economic loss doctrine. They also 

asserted Sauser and Conlan were not personally liable because Cornerstone 

was a disclosed principal. 

For her part, Canavan moved for a directed verdict “on the issue of 

[personal liability of] Joe W. Conlan and Michael Sauser on the obligations under 

the September 11, 2006, [purchase/sale] contract.” Counsel argued that 
12

because the two had signed the sales contract without noting they were signing 

for Cornerstone, they were individually liable. The court reserved ruling.

Canavan made no objections to the district court’s proposed instructions. 

Canavan’s counsel stated:

Our objections go to issues of submissibility. 

We object to Questions Number[s] 1 and 2[4]for the reasons 

set forth in our motion for directed verdict on the issue of personal 

liability. We do not believe that the contract is unambiguous and, 

therefore, we do not believe that there’s a jury issue on capacity.

We object to the submission of Question Number 5 on the 

questions of whether the property can be or has been repaired on 

the basis that there is no evidence in the record other than that the 

property has not been repaired and there is no evidence of any 

possible repair which could work.

And so those would be the Plaintiff’s objections to the 

instructions, Your Honor. 

 

Those objections were overruled. 

The jury was instructed that to prove her claim of breach of contract,5

Canavan was required to prove all of the following propositions:

1. The existence of a contract.

2. The terms of the contract.

3. The plaintiff has done what the contract requires.

4. The defendant has breached the contract.

5. The amount of damage defendant has caused. 

If the plaintiff has failed to prove any of these propositions, 

the plaintiff is not entitled to damages. If the plaintiff has proved all 

of these propositions, then you will consider the defense of failure 

to mitigate as explained in Instruction No. 13.

On Canavan’s negligence claim, the jury was instructed:6

The Plaintiff claims the defendants were at fault in one or 

more of the following particular(s):

Design and construction of Plaintiff’s home.

This ground of fault has been explained to you in other instructions.

 

4 The jury questions are set forth in full below. 

5

Instruction No. 9 contained the breach-of-contract elements.

6

Instruction No. 15 was the negligence claim.
13

The plaintiff must prove all of the following propositions:

1. The defendant was at fault. In order to prove fault, the 

plaintiff must prove Defendants were negligent in the construction 

of the Plaintiff’s home.

2. The defendant’s fault was a cause of the plaintiff’s 

damage.

3. The amount of damage.

If the plaintiff has failed to prove any of these propositions, 

the plaintiff is not entitled to damages. If the plaintiff has proved all 

of these propositions, then you will consider the defense of

comparative fault as explained in Instruction No. 29. 

And, concerning Canavan’s misrepresentation claim, the jury was 

instructed7:

The plaintiff must prove the following propositions by a 

preponderance of clear, satisfactory and convincing evidence to 

establish her fraudulent misrepresentation claim:

1. Michael Sauser made a representation to plaintiff that 

plaintiff could erect a fence to the property line and there were no 

easements on the property.

2. The representation was false.

3. The representation was material.

4. Michael Sauser knew the representation was false.

5. Michael Sauser intended to deceive plaintiff.

6. The plaintiff acted in reliance on the truth of the 

representation and was justified in relying on the representation.

7. The representation was a cause of the plaintiff’s damage.

8. The amount of the damage. 

If the plaintiff has failed to prove any of these propositions, 

the plaintiff is not entitled to damages. If the plaintiff has proved all 

of these propositions, the plaintiff is entitled to recover damages 

against Michael Sauser and against Michael Sauser’s employer, 

CS&R, LLC, if done within the scope of Michael Sauser’s 

employment, in some amount. 

The jury answered the submitted questions, in pertinent part: 

Question No. 1: Do you find Defendant Joe W. Conlan was acting 

in his individual capacity when he signed the contract to sell the 

property located at 1703 Wolf Dr. N.W., Cedar Rapids, Linn 

County, Iowa?

Answer “Yes” or “No.”

 

7 The misrepresentation claim elements were stated in Instruction No. 19.
14

ANSWER: NO

Question No. 2: Do you find Defendant Michael Sauser was acting 

in his individual capacity when he signed the contract to sell the 

property located at 1703 Wolf Dr. N.W., Cedar Rapids, Linn 

County, Iowa?

Answer “Yes” or “No.”

ANSWER: NO

Question No. 3: Do you find that Donna Canavan has proven her 

breach of contract claim?

Answer “Yes” or “No.”

ANSWER: NO

Question No. 4: Do you find that Donna Canavan has proven her 

negligence claim?

Answer “Yes” or “No.”

ANSWER: NO

(If you answered “No” to both Question No. 3 and Question No. 4 

do not answer Question Nos. 5 through 9, and go to Question No. 

10. . . . 

. . . .

Question No. 10: Has Donna Canavan established her claim for 

fraudulent misrepresentation?

Answer “Yes” or “No.”

ANSWER: NO

(If you answered “No,” do not answer any further questions. If you 

answered “Yes,” answer Question No. 11.)

Canavan’s motions for new trial and judgment notwithstanding the verdict 

were denied. The court concluded that “[v]iewing the evidence in the light most 

favorable to defendants,” the jury’s verdict “in all regards” was “supported by 
15

substantial evidence and effectuates justice.” Concerning her claim that Conlan 

and Sauser acted in their individual capacities and were thus individually liable, 

the court ruled, “The question of whether Conlan and Sauser signed the contract 

as individuals rather than representatives of Defendant Cornerstone Homes was 

a question of fact properly put to the jury.” In addition, the court ruled substantial 

evidence supported the jury’s findings that neither was acting in an individual 

capacity when dealing with Canavan.

On appeal, Canavan raises the five issues previously identified.

II. Scope and Standards of Review. 

Our review of a district court’s ruling on a motion for new trial depends 

upon the grounds raised in the motion. Channon v. United Parcel Serv., Inc., 

629 N.W.2d 835, 859 (Iowa 2001). “If the motion for a new trial was based on a 

discretionary ground, we review it for an abuse of discretion. If the ruling 

granting a new trial was prompted by a motion based on a legal question, . . . our 

review is for errors at law.” Olson v. Sumpter, 728 N.W.2d 844, 848 (Iowa 2007)

(citations and internal quotation marks omitted). 

We review a district court’s ruling on a motion for directed verdict for 

correction of errors at law. Pavone v. Kirke, 801 N.W.2d 477, 486 (Iowa 2011).

“‘We review alleged errors in jury instructions for correction of errors at 

law.’” Deboom v. Raining Rose, Inc., 772 N.W.2d 1, 5 (Iowa 2009) (citation 

omitted). “Any error in the instructions given does not merit reversal unless it 

results in prejudice.” Id. (citation omitted). 
16

III. Discussion.

A. Motion for new trial. Canavan moved for a new trial, asserting there 

was insufficient evidence to sustain the verdicts, and opposing counsel’s 

misconduct denied her of a fair trial. 

1. Sufficiency of the evidence to support jury’s findings. “If a jury verdict is 

not supported by sufficient evidence and fails to effectuate substantial justice, a 

new trial may be ordered.” Olson, 728 N.W.2d at 850. Canavan’s claim on 

appeal is that there is “not a scintilla of evidence” to support the jury’s rejection of 

her claims. But this assertion is premised upon her contention that the testimony 

of Conlan and Sauser was “incredible based upon numerous false statements 

and perjured testimony.” The jury apparently disagreed. 

Issues of credibility are particularly in the purview of the jury. Becker v.

D & E Distrib. Co., 247 N.W.2d 727, 730 (Iowa 1976) (“The weight and credibility

of testimony are matters for the jury,” and “[t]his rule applies even though there 

are contradictions or inconsistencies in the testimony of a particular witness.”). 

“The function of the jury is to weigh the evidence and place credibility where it 

belongs.” State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006). Here, 

Canavan contends Sauser misrepresented facts and gave inconsistent 

statements. However, the jurors were free to accept or reject any part of each 

witness’s testimony and to give the testimony the weight they thought it should 

receive. See id. We will not interfere. See Trapalis v. Gershun, 145 N.W.2d 

591, 596 (Iowa 1966) (“The jury’s verdict was within the evidence. It is not for us 

to pass on the weight and credit of the testimony. That is what juries are for.”). 
17

We also note the jury could have concluded it was not negligent to build a 

house on a sand lens because such an event occurs only randomly and can only 

be ascertained by excavation. Sauser testified he had built over 400 homes and 

never before heard of, or experienced, a sand lens. No expert testimony was 

presented to establish Cornerstone was negligent for building the house on this 

site. The jury also could have concluded that Cornerstone, through Sauser’s 

actions, acted reasonably to satisfy Canavan’s warranty claim and by the time of 

trial the water problem had been resolved through the efforts of Tomlinson. 

2. Misconduct. Canavan also asserts her motion for new trial should have 

been granted based upon defendants’ counsel’s questioning the realtor about her 

lack of holding open houses, knowing one reason she had not held additional

open houses was because the property was in foreclosure. 

Denial of a motion for new trial “based on a discretionary ground such as 

misconduct” is reviewed for an abuse of discretion. Loehr v. Mettille, 806 N.W.2d 

270, 277 (Iowa 2011). “‘A court abuses its discretion when its ruling is based on 

grounds that are unreasonable or untenable.’” Giza v. BNSF Ry. Co., 843 

N.W.2d 713, 718 (Iowa 2014) (quoting In re Trust No. T–1 of Trimble, 826 

N.W.2d 474, 482 (Iowa 2013)). 

In her motion for new trial, Canavan asserted defendants’ counsel 

engaged in misconduct “by knowingly eliciting testimony which could not be fully 

explained without violating the court’s order in limine,” which justified a new trial. 

The trial court, however, “reaffirm[ed] its trial rulings.” The trial court wisely 

allowed Steenhoek to explain why she did not have more open houses, 

excluding one of several reasons—that the house was in foreclosure. Those 
18

reasons included the appearance of the basement, the sump pump issue, the 

uncertainty of the weather, the fact she did not believe Canavan’s house was 

saleable. The district court found the fact the house was in foreclosure “invites 

so many tangential issues” and could lead the jury to decide on an improper 

basis. These are not unreasonable or untenable grounds—we find no abuse of 

discretion.

B. Directed Verdict. Canavan also asserts the district court erred in 

failing to grant her motion for directed verdict of individual liability for Conlan and 

Sauser, pointing out each signed the purchase agreement without designating 

they were signing on behalf of Cornerstone Homes. 

A directed verdict is required only if there was no substantial 

evidence to support the elements of the plaintiff’s claim. Evidence 

is substantial when reasonable minds would accept the evidence 

as adequate to reach the same findings. Where reasonable minds 

could differ on an issue, directed verdict is improper and the case 

must go to the jury. Thus, our role is to determine whether the trial 

court correctly determined if there was substantial evidence to 

submit the issue to the jury. In doing so, we must view the 

evidence in the light most favorable to the nonmoving party and 

take into consideration all reasonable inferences that could be fairly 

made by the jury.

Pavone, 801 N.W.2d at 486-87 (alterations, citations, and internal quotation 

marks omitted).

We agree with the district court that Canavan was not entitled to a directed 

verdict on the issue of Conlan’s and Sauser’s individual liablity. Canavan 

concedes she knew Cornerstone was involved in the real estate she purchased. 

Nonetheless, citing Kuehl v. Freeman Bros. Agency, Inc., 521 N.W.2d 714, 721 
19

(Iowa 1994),8 Canavan argues that when a corporate officer signs a document 

without making clear that they are signing on behalf of the corporation, the officer 

is personally liable for the document signed. The defendants counter by citing 

the legal principle that an agent acting within the scope of the agent’s authority 

on behalf of a disclosed principal is not personally liable. See Cryder Well Co. v. 

Stangl, 136 N.W.2d 519, 521 (Iowa 1965) (stating “[n]o novel propositions of law 

are involved . . . [a]n agent acting within the scope of authority for a fully 

disclosed principal is not personally liable to a contracting third party”). The trial 

court correctly ruled a factual issue existed, which was properly submitted to the 

jury. See id. (“This is primarily a question of fact.”). 

Here, Conlan and Sauser both testified they did not intend to be bound

personally, but signed the purchase agreement that Canavan’s realtor drafted 

and provided on behalf of Cornerstone. They did not personally own the house 

or the real estate. Canavan testified she was aware the house was being offered 

for sale by Cornerstone. The warranty names Cornerstone. We agree a factual 

issue was raised and was properly submitted to the jury. The jury’s decision was 

supported by substantial evidence.

9

 Finding no error, we affirm on this issue.

C. Jury Questions. Canavan asserts on appeal that the trial court 

improperly submitted Question Nos. 5 and 13 to the jury. 

Question No. 5 asked, “If you answered ‘Yes’ to either Question No. 3 [did 

plaintiff prove breach of contract], Question No. 4 [did plaintiff prove negligence], 

 

8

In Kuehl, the court found the president and sole owner of an insurance agency 

intended to be personally bound by his signature on an agreement to sell the agency. 

See 521 N.W.2d at 720. 

9 Canavan also contends the “mere presentation” of Question Nos. 1 and 2 may have 

had an adverse effect on the jury’s verdict. We find this claim speculative at best.
20

or both, do you find the defect(s) in the property located at 1703 Wolf Drive N.W., 

Cedar Rapids, Linn County, Iowa, can be, or has been, repaired? Answer ‘Yes’ 

or ‘No.’”

Question No. 13 asked: “Do you find by a preponderance of clear, 

convincing and satisfactory evidence Michael Sauser was acting within the scope 

of his position as an officer of CS&R, LLC when making his fraudulent 

misrepresentation to Donna Canavan? Answer ‘yes’ or ‘no.’” 

We address only Question No. 5 because Canavan did not object to 

Question No. 13 or to the other jury instructions—including the affirmative 

defense of mitigation—in the district court. See Meier v. Senecaut, 641 N.W.2d 

532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that 

issues must ordinarily be both raised and decided by the district court before we 

will decide them on appeal.”).

On appeal, Canavan asserts the court erred in submitting Question No. 5

to the jury because “there was no evidence other than the fact the water problem 

hasn’t been fixed, to support whether the problem could actually be fixed.” She 

argues that the terms of the warranty guaranteed the defendants would correct 

any problem that caused water to enter the basement and they failed to do so.

The defendants assert the issue is irrelevant on appeal because the jury 

did not reach the question, and Canavan has suffered no prejudice. We agree.

“We review a claim that the district court gave an instruction not supported 

by the evidence for correction of errors at law.” Asher v. OB-Gyn Specialists, 

P.C., 846 N.W.2d 492, 496 (Iowa 2014). Here, however, even if we assume 

there was not sufficient evidence to support the instruction, errors in instructions 
21

do not “warrant reversal unless the instruction prejudiced the complaining party.” 

Anderson v. Webster City Cmty. Sch. Dist., 520 N.W.2d 263, 267 (Iowa 2000). 

Because the jury did not reach the question, Canavan has suffered no prejudice.

Viewing the evidence in the light most favorable to the prevailing party, 

substantial evidence supports the jury’s verdicts. The trial court did not abuse its 

discretion in its evidentiary rulings or in denying the posttrial motions. We 

therefore affirm. 

AFFIRMED.