Preview:

IN THE COURT OF APPEALS OF IOWA

No. 6-440 / 05-1952
Filed October 25, 2006

MARQUART BLOCK CO.,
Plaintiff-Appellee,

vs.

DENIS DELLA VEDOVA, INC., MERCHANTS BONDING  
COMPANY (MUTUAL) and UNITED FIRE & CASUALTY  
COMPANY,
Defendants-Appellants,

BROOKLYN-GUERNSEY-MALCOM COMMUNITY SCHOOL
DISTRICT, SMITH QUALITY RENTAL, INC., BROOKLYN
BUILDING CENTER CO., STAR EQUIPMENT, LTD., RHINO
BLOCK & MATERIALS, L.C., GILCREST/JEWETT LUMBER  
COMPANY, STORAGE AND DESIGN GROUP INC., RICH-CON,
INC., d/b/a SERVICE MASTER OF NEWTON, INC., TWIN CITY
CONCRETE PRODUCTS COMPANY and JASPER  
CONSTRUCTION SERVICES,
Defendants.
________________________________________________________________

Appeal from the Iowa District Court for Poweshiek County, Dan F. Morrison, Judge.  

Certain defendants appeal following judgment entry in favor of plaintiff in an action to adjudicate rights to retained funds on a public improvement project.  AFFIRMED.  
Stephen D. Marso of Whitfield & Eddy, P.L.C., West Des Moines, for appellant.
William D. Olson of Brierly Charnetski L.L.P., Grinnell, for appellee.

Heard by Mahan, P.J., and Miller and Vaitheswaran, JJ.
MILLER, J.  
Defendants Denis Della Vedova, Inc., Merchants Bonding Company (Mutual), and United Fire and Casualty Co., appeal following a district court judgment entry in favor of plaintiff Marquart Block Company on its Iowa Code chapter 573 (2005) action to adjudicate rights to retained funds on a public improvement project.  We affirm the district court.  
I.  Background Facts and Proceedings.  
Brooklyn-Guernsey-Malcom Community School District (BGM) entered into a written contract with Denis Della Vedova, Inc. (DDVI), whereby DDVI agreed to be the general contractor for a construction project at BGM High School.  The project was a public construction project subject to chapter 573.  DDVI executed a performance bond through United Fire and Casualty Company (United Fire), as required by section 573.2.      
DDVI subcontracted the masonry portion of the project to Blattner Masonry (Blattner).  Blattner then subcontracted with five other entities, including Marquart Block Company (Marquart), to provide materials and equipment for the masonry portion of the project.  However, Blattner failed to complete the masonry portion of the project according to the terms of its agreement with DDVI, and abandoned the project prior to finishing its work.  
On June 20, 2001, John Thiele, the vice president and general manager of Marquart, sent a letter to Dennis Della Vedova of DDVI.  The letter, which was received by DDVI some time prior to June 25, and supported by itemized invoices, gave DDVI notice of the amounts due and owing for materials Marquart had supplied to Blattner for the masonry portion of the project between February 1 and June 8, 2001.  The letter also confirmed an oral agreement between DDVI and Marquart whereby Marquart would provide additional materials for completion of the masonry portion of the project directly to DDVI.  
On July 23, 2001, Marquart filed a chapter 573 claim with BMG for the unpaid balance of the February 1 through June 8, 2001, invoices.  As allowed by section 573.16, DDVI executed a bond through Merchants Bonding Company (Mutual) (Merchants) for double the amount of all the chapter 573 claims properly filed with BMG.  
Marquart filed the current action in March 2005, seeking an adjudication of its rights to the retained funds of the project, as well as judgment against the principals and sureties on the bonds issued by United Fire and Merchants to the extent such a judgment was necessary to satisfy any established claims.1  In their answer DDVI, United Fire, and Merchants (hereinafter collectively referred to as DDVI) asserted that Marquart was not entitled to judgment because it had failed to comply with the requirements of chapter 573.  DDVI then moved for summary judgment, which was overruled by the district court.    
In October 2005, Marquart and DDVI agreed to submit the matter to the district court upon stipulated facts.  DDVI asserted that Marquart was not entitled to judgment because it had failed to comply with the notice requirements of section 573.15.  The district court rejected DDVI

Download 6-440.pdf

Iowa Law