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IN THE COURT OF APPEALS OF IOWA No. 6-623 / 05-1760 Filed November 30, 2006

BRUCE J. ISHMAN, Individually and on behalf of all others similarly situated, Plaintiff-Appellee, vs. FEATHERLITE, INC., d/b/a FEATHERLITE MANUFACTURING, INC., Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Howard County, John Bauercamper, Judge.

Defendant appeals the certification of this action regarding employees' vacation benefits as a class action. AFFIRMED.

Judith O'Donohoe of Elwood, O'Donohoe, Stochl, Braun & Churbuck, Charles City, for appellant. Karl G. Knudson, Decorah, and Mark B. Anderson, Cresco, for appellee.

Heard by Huitink, P.J., and Vogel, J., and Robinson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).

2 ROBINSON, S.J. I. Background Facts & Proceedings

Bruce Ishman is employed at Featherlite, Inc. as a production worker. In October 2003, the company implemented a vacation policy for production employees which provided that each year on an employee's anniversary date, the employee would receive an allotment of vacation time based on the employee's years of service. 1 For example, Ishman had more than six years of employment and on his anniversary date of June 1, 2004, received four weeks of vacation (160 hours). Employees were not permitted to carry over vacation from one year to the next. Effective December 31, 2004, the company changed its vacation policy to provide that all employees would be allotted vacation time on January 1, instead of their anniversary date. However, employees would earn the vacation time prorated over the calendar year. Employees could take vacation time previous to earning it, but if they terminated employment for any reason prior to earning the vacation hours they had taken, the company could request reimbursement for the unearned vacation time which had been taken. 2 Under the new policy,

employees could carry over up to three days of vacation time to the next year. The vacation policy was further modified on January 13, 2005, to implement transitional measures. Employees were given pro-rata vacation time

1

The company's vacation policies also contained provisions for personal days. In order to simplify matters, we have not separately discussed the provisions for personal days, which are similar to the provisions for vacation days.

It is not clear this rule would apply to an employee age sixty-five or older who retired. A retiring employee could be paid for unused vacation time in the year of retirement.

2

3 from their anniversary date to December 31, 2004, less vacation time already used. This amount was added to the new allotment of vacation time on January 1, 2005. Ishman's pro-rata vacation time from June 1 to December 31, 2004, was ninety-four hours. He had taken eighty-eight hours of vacation and was given six hours of carry-over vacation time for 2005, in addition to his new allotment of 160 hours. On March 17, 2005, Ishman filed a petition against Featherlite seeking to institute a class action on behalf of all production employees working in the State of Iowa as of December 30, 2004. 3 He alleged Featherlite had (1) intentionally failed to pay him and other class members wages under Iowa Code section 91A.3 (2005); (2) failed to pay wages which were due under an agreement or policy; (3) breached a contract for the payment of employee benefits; and (4) defrauded him and other members of the class. Ishman sought actual and

punitive damages. Featherlite resisted the motion for class certification. The district court granted the motion for class certification, finding: (1) the

requirements of Iowa Rule 1.261 of Civil Procedure had been satisfied; (2) a class action should be permitted for the fair and efficient adjudication of the controversy; (3) the representative party would fairly and adequately protect the interests of the class; (4) joint or common interests exist among the members of the class; and (5) the criteria of rule 1.263(1) were satisfied. The class was described as "persons who were employed as production workers in the State of

3

The parties estimated there were about 700 Featherlite production employees in Iowa. Featherlite also has production employees in Florida. The motion for class certification requested that the district court defer a determination of a class action in Florida, due to differences in Iowa and Florida law.

4 Iowa by the defendant as of December 30, 2004, all of whom had earned the annual right to vacation pay in some amount as of their date of hire anniversary." Featherlite appealed the certification of the class action. See Iowa R. Civ. P. 1.264(3) ("An order certifying or refusing to certify an action as a class action is appealable."). II. Standard of Review

We review a district court's decision to grant or deny a request to certify a class action for an abuse of discretion. Luttenegger v. Conseco Fin'l Servicing Corp., 671 N.W.2d 425, 436 (Iowa 2003). We will find an abuse of discretion only where the district court's grounds were clearly unreasonable. Varner v. Schwan's Sales Enters., Inc., 433 N.W.2d 304, 305 (Iowa 1988). III. Class Certification

Featherlite contends this case should not have been certified as a class action. A district court may certify an action as a class action if it finds (1) the requirements of Rule 1.261 have been satisfied; (2) a class action will permit the fair and efficient adjudication of the controversy; and (3) the representative party will fairly and adequately protect the interests of the class. 1.262(2). Rule 1.261 provides: One or more members of a class may sue or be sued as representative parties on behalf of all in a class action if both of the following occur: (1) The class is so numerous or so constituted that joinder of all members, whether or not otherwise required or permitted is impracticable. (2) There is a question of law or fact common to the class. The plaintiff has the burden to establish that these prerequisites have been met. Vos v. Farm Bureau Life Ins. Co., 667 N.W.2d 36, 45 (Iowa 2003). A failure of Iowa R. Civ. P.

5 proof on any one of the prerequisites is fatal to class certification. Dubuque v. Iowa Trust, 519 N.W.2d 786, 791 (Iowa 1994). A. Featherlite contends Ishman did not present sufficient information City of

to demonstrate that his claim exceeded the maximum jurisdictional amount for small claims court. Featherlite raised this issue in its memorandum in support of resistance to class certification. The district court did not specifically address the issue. In order to preserve error, a party seeking to appeal an issue presented to, but not decided by, the district court, must call the court's attention to the issue by a post-trial motion. See Meier v. Senecaut, 641 N.W.2d 532, 540 (Iowa 2002). We conclude this issue has not been preserved for our review. Even if the issue had been preserved, however, we would find plaintiff's claims would exceed the jurisdictional amount. Under section 631.1(1), if a civil action raises a claim for a money judgment of $5000 or less, the action should be brought as a small claims action. Our supreme court has stated, "We hold the claims in a uniform rule class action may be aggregated for the purposes of determining whether the minimum jurisdictional exception applies." Ackerman v. Int'l Bus. Machs. Corp., 337 N.W.2d 486, 489 (Iowa 1983). 4 B. Featherlite claims plaintiff failed to present sufficient information to

show that the proposed action met the requirements of rule 1.261

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