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FLOM v. STAHLY9/17/1997
discovery rules to allow the testimony of the two witnesses. See Iowa R. Civ. P. 125(a)(1)(A), (c), (d).
We conclude that the trial court did not err in determining the amount of damages awarded to plaintiffs Flom.
IV. Cross-appeal issues. On cross-appeal, plaintiffs Flom contend the trial court erred in failing to apply the theory of implied warranty, excluding the testimony of one of their witnesses, and failing to award prefiling interest.
A. Implied warranty. We agree with the trial court that the theory of implied warranty is not applicable in this case. An implied warranty that a home has been constructed in a reasonably good and workmanlike manner can be shown by establishing: (1) the house was constructed to be occupied as a home; (2) the house was purchased from a builder-vendor, who constructed it for the purpose of sale; (3) the house was not constructed in a good and workmanlike manner; (4) the buyer was unaware of the defect; and (5) the buyer suffered damages. Kirk v. Ridgway, 373 N.W.2d 491, 496 (Iowa 1985). In this case, the Stahlys were not builder-vendors — persons in the business of building or assembling homes for the purpose of sale. See Kirk, 373 N.W.2d at 496. In addition, the Stahlys intended to live in the house themselves and did not construct it for the purpose of sale. Thus, key elements [569 NW2d Page 143]
for recovery under implied warranty were lacking.
The trial court did not err in refusing to apply the theory of implied warranty of fitness.
B. Exclusion of expert testimony. The Floms dispute the trial court's ruling excluding the testimony of their expert witness regarding the cost of tearing out the old heating system. However, the witness did not discuss that subject in his pre-trial deposition and was identified as an expert in that area only shortly before the trial. Exclusion of the testimony by the trial court was not an abuse of discretion under Iowa Rule of Civil Procedure 125. See Carolan, 553 N.W.2d at 888 (stating trial court is given discretion regarding admission of expert testimony).
C. Prefiling interest. In a post-trial motion, plaintiffs Flom requested prefiling interest. Although Iowa Code section 535.3 provides that interest on judgments shall accrue from the date of the commencement of the action, we recognize an exception to this rule and allow prefiling interest from a time prior to filing of the petition when damages become complete at an earlier particular time. See McGough v. Gabus, 526 N.W.2d 328, 334 (Iowa 1995). The trial court refused the Floms' request because it found that a genuine dispute existed between the parties as to the Floms' right to recover at all and as to the amount of damages. See Brenton Nat'l Bank v. Ross, 492 N.W.2d 441, 443 (Iowa App. 1992). We agree with the trial court that this case does not fall within the exception to Iowa Code section 535.3 and therefore find no error in denying prefiling interest.
V. Disposition. We have considered other arguments raised by the parties and find them to be without merit. We affirm the judgment of the district court both on the Stahlys' appeal and on the Floms' cross-appeal.
Costs on appeal are taxed three-fourths to the Stahlys and one-fourth to the Floms.
AFFIRMED ON BOTH APPEALS.
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