Mark Fondell Excavating, Inc. vs. City of Dubuque Copyright 2014
City of Dubuque Consent Items # 14.
ITEM TITLE: Mark Fondell Excavating, Inc. vs. City of Dubuque
SUMMARY: City Attorney submitting a Summary Judgment dismissing
the suit of Mark Fondell Excavating, Inc. vs. City of
Dubuque.
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File
ATTACHMENTS:
Description Type
Staff Memo Staff Memo
Order Re: Summary Judgment Supporting Documentation
THE CTTY OF
DUB E MEMORANDUM
Masterpiece on the Missi ippi
BARRY LINDA
CITY ATTORNE
To: Mayor oy D. Buol and
Members of the City Council
DATE: May 9, 2016
RE: Mark Fondell Excavating, Inc. vs. City of Dubuque
Mark Fondell Excavating, Inc. filed a lawsuit against the City of Dubuque claiming extra
work on the improvements to the Water & Resource Recovery Center Project in the
amount of $934,626.94. The City's position is that no one authorized by the City agreed
to any of the extra work.
Attached is a Summary Judgment from the Iowa District Court for Dubuque County
agreeing with the City's position and dismissing the lawsuit with no cost to the City.
BAL:tls
Attachment
cc: Michael C. Van Milligen, City Manager
William O'Brien, Water & Resource Recovery Center Manager
F:\USERS\tsteckle\Lindahl\Fondell Mark Excavating vs.City\MayorCouncil_SummaryJudgmentDismissingCase_050916.doc
E-FILED 2016 APR 30 3:22 PM DUBUQUE - CLERK OF DISTRICT COURT
IN THE IOWA DISTRICT COURT IN AND FOR DUBUQUE COUNTY
MARK FONDELL EXCAVATING, INC.,
Plaintiff, Case No. 01311 EQCV 102814
Vs.
ORDER RE:
CITY OF DUBUQUE, SUMMARY JUDGMENT
Defendant.
This matter came before the Court on February 26, 2016, for a hearing on the Motion for
Summary Judgment filed by the Defendant on January 15, 2016. Attorney Marc Mills appeared
personally for the Plaintiff. Attorneys Barry Lindahl and Ivan Webber appeared personally for the
Defendant.
L STANDARD OF REVIEW FOR SUMMARY JUDGMENT
The standards for granting summary judgment are well settled in Iowa. Rule of Civil
Procedure 1.981(3)provides that summary judgment shall be granted:
... if the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.
An issue of fact is "material" only when the dispute is over facts that might affect the
outcome of the suit, given the applicable governing law. Sallee v. Stewart, 827 N.W.2d 128, 133-34
(Iowa 2013). The requirement of a "genuine" issue of fact means that the evidence is such that a
reasonable jury could return a verdict for the non-moving party. Wallace v. Des Moines Indep.
Comm. Sch. Dist., 754 NW.2d 854, 857 (Iowa 2008); Sankey v. Richenberger, 456 N.W.2d 206, 207
(Iowa 1990). "The mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment." Borschel v. City of Perry, 512
N.W.2d 565, 567 (Iowa 1994). The requirement is that there be no genuine issue of material fact. Id.
The Court must examine the record in the light most favorable to the party opposing the
motion for summary judgment to determine if the movant has met the burden. Knake v. King, 492
N.W.2d 416 (Iowa 1992). The party resisting the motion, however, may not rely solely on its
pleadings or legal conclusions, but"must set forth specific facts which constitute competent evidence
showing a prima facie claim."Fogel v. Trustees oflowa College, 446 N.W.2d 451, 454 (Iowa 1989);
see also Pappas v. Hughes, 406 N.W.2d 459, 460 (Iowa App. 1987). This requirement "weeds out
`paper cases and defenses' in order `to make the way for litigation which does not have something to
it."Hoefer v. Wis. Educ. Ass'n Ins. Trust, 470 N.W.2d 336, 339 (Iowa 1991). In short, the resisting
party has to produce competent evidence to support its defense; "there is no genuine issue of fact if
E-FILED 2016 APR 30 3:22 PM DUBUQUE - CLERK OF DISTRICT COURT
Fondell Excavating v. City of Dubuque
01311 EQCV 102814
Summary Judgment ruling
Page 2 of 3
there is no evidence." Green v. Racing Ass'n of Cent. Iowa, 713 N.W.2d 234, 245 (Iowa 2006).
Finally, it is clear that summary judgment is proper in cases where its application advances its
salutary objective of avoiding useless, expensive and time-consuming trials where there exists no
genuine, factual issue to be tried. Diamond Products Co. v. Skipton Painting and Insulating, Inc., 392
N.W.2d 137, 138 (Iowa 1986);Neoco Inc. v. Christenson, 312 N.W.2d 559, 560 (Iowa 1981).
IL ISSUES OF MATERIAL FACT
The basic underlying facts of this case do not appear to be at issue. The City has submitted a
Statement(and a Revised Statement) of Material Facts Not in Dispute. Fondell has not submitted an
alternative version of the facts in this matter, nor responded to those filings in any way.
Fondell alleges that it did work on the City's Water Pollution Control Plant Modification
Project as a subcontractor. Fondell further claims it has not been fully compensated for its work and
that the City is liable for damages based on the alternative theories of (1) unjust enrichment, (2)
quantum meruit and (3) promissory estoppel. Fondell acknowledges that it has released any claims
under Iowa Code Chapter 573. Fondell further admits that it had no express contract with the City.
The City is a municipal government. Those who deal with a municipal corporation are
required to take notice of the limitations of power of a particular agent or officer with whom they
deal. S. Goldberg & Co. v. City of Cedar Rapids, 204 N.W. 216, 217 (Iowa 1925). Those who deal
with officers of a municipal corporation do so at their peril. Id. All powers of the City are vested in
the City Council unless otherwise provided by statute. Iowa Code § 364.2. The City can exercise its
powers only through the passage of a motion, resolution, amendment or ordinance. Iowa Code §
364.3.
In answer to Interrogatory 3, Fondell put forward the following names of individuals who
requested that it perform work outside the scope covered by the subcontract:
Glen Trankowski, engineer, Strand Associates, Inc.
Gerald David,job superintendent, Miron Construction
Tim Schneider, JT Ahern, project manager
Jason Talbott, JT Ahern, assistant to T. Schneider
Gus Psihoyos, City Engineer, City of Dubuque
John Brown, former Director of the Waste Water Treatment Plant, City of Dubuquel
Nowhere in the materials provided, could the Court find that any of the above named
individuals were authorized to act as an "agent" of the City. In fact, Interrogatory 9 asked Fondell to
"[s]et forth all facts which establish any person named in answer to Interrogatory 8 was authorized
i City of Dubuque's Revised Statement of Material Facts Not in Dispute,Interrogatory Attachment,Interrogatory 3
E-FILED 2016 APR 30 3:22 PM DUBUQUE - CLERK OF DISTRICT COURT
Fondell Excavating v. City of Dubuque
01311 EQCV 102814
Summary Judgment ruling
Page 3 of 3
by any action of the Dubuque City Council to act in the manner alleged. ,2 Fondell's answer was
"None known at this time."
The City also provided the Affidavit of Kevin Fimstahl, City Clerk of the City of Dubuque.
This affidavit provided that after examination of paper and electronic records:
"a)no record of any contract approved or adopted by the City Council
with Mark Fondell Excavating, Inc., b) no record of City Council
approval of any change order approving or requesting work done or to
be done by Mark Fondell Excavating, Inc., and c) no authorization,
appointment or other action by the City Council authorizing any ...
people to request, ask for, direct or otherwise act on behalf of the City
of Dubuque or contract for the City of Dubuque in regard to
construction of the Water Pollution Control Plan Modification
Project."
The only information that Fondell has put forward is that the City "accepted" the project. In
its answer to Interrogatory 5, Fondell stated "the City of Dubuque formally accepted the project,
which included the additional work done by Plaintiff. If the City Council didn't formally act to
accept the project, then it was accepted by City of Dubuque administrators who were authorized as
agents of the City to accept the project."i
While the facts are viewed in the light most favorable to the non-moving party, Fondell has
not put forward any evidence that the requests for additional work were approved by the City
Council or by an authorized agent of the City Council. It is not necessary to establish that an express
contract existed between Fondell and the City Council to proceed under the alternate theories put
forward by Fondell. However, it is crucial under those theories to establish that at the very least an
implied contract existed. This would require a prima facie showing that the individuals requesting the
additional work were authorized agents of the City. Fondell has provided no information on this
topic.
III. CONCLUSION
To survive a motion for summary judgment, it must be established that there are genuine
issues of material fact. The Court finds that no genuine issues of material facts exist in this case.
Fondell has put forward nothing more than its Petition and legal argument to suggest that it should
recover under the theories of unjust enrichment, quantum meruit and promissory estoppel.
Accordingly, the Defendant's Motion for Summary Judgment is GRANTED. This matter is now
dismissed. Costs are assessed to the Plaintiff.
z City of Dubuque's Revised Statement of Material Facts Not in Dispute,Interrogatory Attachment,Interrogatory 9.
The answer to Interrogatory 8, says"See Interrogatory 3."
3 City of Dubuque's Revised Statement of Material Facts Not in Dispute, Affidavit Attachment
City of Dubuque's Revised Statement of Material Facts Not in Dispute,Interrogatory Attachment,Interrogatory 5
E-FILED 2016 APR 303:22 PM DUBUQUE- CLERK OF DISTRICT COURT
e
State of Iowa Courts
Type: OTHER ORDER
Case Number Case Title
EQCV 102814 MARK FONDELL EXCAVATING V CITY OF DUBUQUE
cSo Ordered
Thomas
/ U
Thomas A. Bitter, District Court Judge,
First Judicial District of Iowa
Electronically signed on 2016-04-30 15:2204 page 4of4