text:
    Robert L. Bellman, as Administrator of Estate of Derek R. Bellman, Deceased, Plaintiff, v. The City of Cedar Falls, Defendant. The CITY OF CEDAR FALLS, Appellee, v. CEDAR FALLS COMMUNITY SCHOOL DISTRICT, Appellant.
    No. 98-1659.
    Supreme Court of Iowa.
    Sept. 7, 2000.

      Jim D. DeKoster and Beth E. Hansen of Swisher & Cohrt, P.L.C., Waterloo, for appellant.
    James E. Walsh, Jr. and Christy R. Liss of Clark, Butler, Walsh & Hamann, Waterloo, for appellee.
   SNELL, Justice.

This appeal arises from a tragic accident which, ironically, occurred during a safety program for a class of kindergarten students. One of the students, Derek Bellman, died from injuries inflicted by a golf cart kept on hand for use during the safety presentations. A judgment was entered against the City of Cedar Falls after it admitted liability, and the City sought contribution from the Cedar Falls Community School District. A jury determined the District shared fault for the accident. The District now appeals various rulings related to that finding. Because we determine the district court committed no reversible error, we affirm.

I. Background Facts and Proceedings

The facts surrounding the accident are largely undisputed.

In September 1995, the City of Cedar Falls held its annual safety program for the kindergarten students of several elementary schools. This long-running program, called “Safety City,” was jointly conducted by the police and fire divisions of the City’s Department of Public Safety, Sartori Memorial Hospital, and Cedar Falls Utilities. The police division was in overall charge of administering the program.

Safety City was held at the City’s Recreation Center during the course of a week. Each morning and afternoon two kindergarten classes would visit the site. One class would attend presentations put on by the fire and utilities personnel inside the building, while the other class would view presentations by the police division and hospital in the parking lot outside. The classes would then trade places.

The police division’^ portion of the program included traffic safety and “stranger danger” demonstrations conducted by three police officers, Sergeant Todd Wilson, and Officers Laurel Magee and Tim Eich. Using a motorized golf cart and a miniature intersection, Sergeant Wilson would simulate a motorist while Officer Eich played the part of a careless pedestrian. Sergeant Wilson would also act out the role of a stranger attempting to entice the children to the cart with an offer of candy. Officer Magee, in uniform, narrated the scenes and instructed the students on the safety lessons they were meant to convey. After these and other demonstrations, the students were allowed to examine a patrol vehicle parked nearby.

On the morning of September 15, 1995, the final day of the program, Safety City was visited by two kindergarten classes from North Cedar Elementary School in the Cedar Falls Community School District. The classes were led by their teachers, Judy Hagen and Katie Duax. Each class was also accompanied by two parents. Upon arriving at Safety City, Ms. Hagen’s class went inside the community center while Ms. Duax’s class of eighteen pupils, Derek among them, remained in the parking lot.

The police division’s program concluded without incident. It was followed by the hospital’s presentation, conducted by two paramedics at the rear of an ambulance. Sergeant Wilson parked the golf cart nearby and watched from the seat. When the class was invited to tour the ambulance, he joined the other adults who were assisting the children entering and exiting the emergency vehicle. The golf cart was left unattended with the key in the ignition.

At some point one of the. parents observed, without alarm, that several of the children had gone over to the cart and gotten on. Shortly thereafter, one of the children apparently stepped on the accelerator pedal, releasing the cart’s brake and activating its electric motor. Before any of the adults could stop the cart, it had forcefully pinned Derek against the side of the ambulance. Derek sustained injuries from which he later died.

Derek’s estate brought a wrongful death action against the City. The City cross-petitioned against both the District and the hospital, alleging they were in some measure responsible for the accident. The City eventually admitted fault and a trial was held solely on the issue of damages, resulting in a jury award to Derek’s estate of $909,260.51. Another trial was then held on the City’s claim for contribution. The jury returned a verdict finding the City 66% at fault, and the District 34% at fault.

The School District’s appeal raises several issues in connection with the district court’s adverse rulings on the District’s motion to compel discovery, motions for summary judgment, directed verdict, judgment notwithstanding the verdict, and new trial. We address each issue in turn, reviewing for errors of law. Lovick v. WilRich, 588 N.W.2d 688, 692 (Iowa 1999); Keystone Elec. Mfg., Co. v. City of Des Moines, 586 N.W.2d 340, 345 (Iowa 1998).

II. Sufficiency of Evidence

The jury was instructed to allocate a percentage of fault to the District if the City proved that Derek’s death was proximately caused by the District’s failure to use ordinary care in (1) implementing school board policy for field trips, or (2) supervising the kindergarten class at Safety City. The District contends the evidence did not establish that it failed in either obligation, i.e., that it was negligent, or that any negligence on its part was the proximate cause of Derek’s death.

When a party challenges the sufficiency of evidence to support the jury’s factual findings, we examine the record to determine whether those findings are supported by substantial evidence. Boham v. City of Sioux City, 567 N.W.2d 431, 435 (Iowa 1997). In so doing, we must view the evidence in the light most favorable to the verdict, taking into consideration all reasonable inferences the jury may have made. Id. The factual issues of negligence and proximate cause are for the jury to resolve, and only in exceptional cases may we decide them as a matter of law. Iowa R.App. P. 14(f)(10); Vogan v. Hayes Appraisal Assocs., Inc., 588 N.W.2d 420, 424 (Iowa 1999).

As noted, the facts set forth above are largely undisputed and could be gathered from the trial testimony of the adults present at the scene of the accident. Additional testimony was offered by Dr. Edward Dragan, an expert in the field of educational administration, and Brian Campbell, North Cedar Elementary School’s new principal at the time of the accident.

During Principal Campbell’s testimony, the jury was informed the District’s policy manual had the following rule: “Supervision shall be provided as needed for student activities. The principal will be responsible for determining the amount and type of supervision appropriate for the activity.” Principal Campbell testified that he could not recall having reviewed or evaluated the Safety City program prior to the accident, or having spoken with Ms. Duax about the trip, or having made a determination as to the type of supervision which would be appropriate. Instead, he testified he relied on the experience of the teachers and the knowledge that the field trip was in a controlled environment and had been going on for a number of years. He further testified he did not believe it necessary to give specific instructions to parent volunteers concerning supervision of the children at Safety City.

Dr. Dragan gave a contrary opinion, critical of the principal’s failure to hold a meeting with the teachers prior to the field trip during which they would discuss the appropriateness of the supervision planned for the activity. He testified this was particularly necessary given that Ms. Duax was in her first year at North Cedar, given the age of the children, and given that the field trip was taking place early in the school year. He suggested the teacher should have been instructed to meet with the parent volunteers beforehand to explain the nature of the field trip and to specifically assign to them students who they would supervise.

Dr. Dragan also opined that Ms. Duax did not provide the appropriate level of supervision at Safety City. He referred to evidence that she was facing the side door of the ambulance at the time of the accident, helping the children alight from the vehicle. He contended she should have been in a position to supervise the entire class, having one of the other adults assist the students at the door. Dr. Dragan reiterated that the teacher should have assigned to each parent specific supervisory responsibilities, including a group of students to supervise.

After considering the record in the light most favorable to the verdict, we believe substantial evidence supports a finding of negligence under either specification. At the time of the accident there were eight adults within a few yards of the class— three police officers, two paramedics, two parents, and the teacher. But only one, Ms. Duax, had the District’s responsibility for supervising the children. With assistance from other adults present, she was in fact supervising the children exiting the side of the ambulance, protecting them from the danger of a fall. The jury could find, however, that her supervision did not extend to other children in the class, who were able to move from the ambulance to play on the unattended golf cart. The jury could further find that the principal’s and teacher’s failure to delegate supervisory responsibility to other adults who could have supervised the children while Ms. Duax was occupied constituted a failure to use ordinary care.

The District points out that one of the parent volunteers did notice the children on the cart. It argues that Ms. Duax and the other adults had no way of knowing that Sergeant Wilson left the key in the golf cart, and that absent this knowledge, it was not foreseeable the cart posed a danger to the children.

We find that it was a question for the jury whether one with the responsibility of supervising the children, using ordinary care, would have intervened upon observing that some of the children had moved to the golf cart. It was uncontroverted that the children had no permission to be on the cart. Taking into account the motorized cart’s potential mobility, the jury may have found it was inconsistent with ordinary care to assume the cart was a safe place for the children to play. Ms. Duax in fact testified that, had she seen the children on the cart, she would have instructed them to get off. We conclude that a finding of negligence under either specification is supported by the evidence.

The law does not impose liability for negligence unless the breach of a duty of care is also the proximate cause of the injury. See Hartig v. Francois, 562 N.W.2d 427, 429 (Iowa 1997). Proximate cause has two components: (1) the defendant’s conduct must have in fact caused the damages; and (2) the policy of the law must require the defendant to be legally responsible for them. Hasselman v. Hasselman, 596 N.W.2d 541, 545 (Iowa 1999). With respect to the first component, a plaintiff must at a minimum prove that the damages would not have occurred but for the defendant’s negligence. Id. We believe the City has done so here. The jury, upon finding the District was negligent, could also find the accident would not have occurred but for the negligence. The cart would not have started had the children been prevented from playing on it.

Further, in order to satisfy the cause-in-fact component, the plaintiff must also show the defendant’s conduct was a “substantial factor” in bringing about the harm. Hayward v. P.D.A., Inc., 573 N.W.2d 29, 31 (Iowa 1997). On this issue, we look to the proximity and foreseeability of the harm flowing from the actor’s conduct. Scoggins v. Wal-Mart Stores, Inc., 560 N.W.2d 564, 567 (Iowa 1997). We have said:

If upon looking back from the injury, the connection between the negligence and the injury appears unnatural, unreasonable, and improbable in the light of common experience, such negligence would be a remote rather than a proximate cause. If, however, by a fair consideration of the facts Rased upon common human experience and logic, there is nothing particularly unnatural or unreasonable in connecting the injury with the negligence, a jury question would be created.

Hollingsworth v. Schminkey, 553 N.W.2d 591, 597 (Iowa 1996) (quoting Chenoweth v. Flynn, 251 Iowa 11, 17-18, 99 N.W.2d 310, 314 (1959)). With this in mind, we believe a jury could conclude the District’s negligence was a substantial factor in bringing about the accident. It is not necessary that the actual consequences of the District’s negligence should have been foreseen. See Scoggins, 560 N.W.2d at 567, 570. It is enough that it was foreseeable some injury might result from the District’s failure to properly supervise the class and intervene when the children began playing on the cart. We discern nothing particularly unnatural or unreasonable in the jury connecting Derek’s death with such a finding of negligence.

With respect to the second component, i.e., the policy of the law, responsibility will be extended to those consequences which have in fact been produced by an actor’s conduct. The general rule is that an actor’s conduct is the proximate or legal cause of harm to another if (1) his conduct is a “substantial factor” in bringing about the harm and (2) there is no other rule relieving the actor of liability because of the manner in which his negligence resulted in the harm. Id. at 567 (citing Kelly v. Sinclair Oil Corp., 476 N.W.2d 341, 349 (Iowa 1991)). Thus, the jury could find the District was legally responsible for the harm if the City showed the injuries sustained were in fact caused by the District’s conduct and liability was not prevented by a later, superseding force. See id., Hagen v. Texaco Ref. Mktg., Inc., 526 N.W.2d 531, 537 (Iowa 1995). “[A]n intervening force which falls squarely within the scope of the original risk will not supersede the defendant’s responsibility.” Hollingsworth, 553 N.W.2d at 598. Because it was foreseeable the children would be curious and interested in the golf cart, the jury could conclude their conduct fell within the original risk created by the District’s actions.

Substantial evidence supports a jury finding that the District was negligent and that its negligence was the proximate cause of Derek’s injuries.

III. Immunity

A. Section 670.4(10)

The District alternatively contends that it is immune from liability in this case. Suits against the government may be maintained only to the extent immunity has been expressly waived by the legislature. Baker v. City of Ottumwa, 560 N.W.2d 578, 583 (Iowa 1997). Iowa Code chapter 670 governs tort liability of governmental subdivisions, including school districts, see Iowa Code § 670.1(2) (1999) (defining “municipality” to include a school district), subjecting them to liability for the torts of their officers and employees unless the tort falls within one of the exemptions spelled out in section 670.4. Baker, 560 N.W.2d at 582. One such exemption applies to

[a]ny claim based upon an act or omission of an officer or employee of the municipality ... if the damage was caused by a third party, event, or property not under the supervision or control of the municipality, unless the act or omission of the officer or employee constitutes actual malice or a criminal offense.

Iowa Code 670.4(10). The District asserts that Derek Bellman’s death was caused by a third party, event, or property not under its supervision or control, specifically, Sergeant Wilson leaving the key in the golf cart’s ignition. Thus, the District argues section 670.4(10) immunizes it from any liability.

The District acknowledges, however, that it had a duty to supervise and control the children in Derek’s class. We have observed that school districts are charged with the care and control of children and must exercise the same standard of care toward them that a parent of ordinary prudence would observe in comparable circumstances. Godar v. Edwards, 588 N.W.2d 701, 708 (Iowa 1999); Burton v. Des Moines Metro. Transit Auth., 530 N.W.2d 696, 700 (Iowa 1995). Thus, to the extent Derek’s death resulted from the children’s actions in climbing onto the cart and activating the motor, the immunity of section 670.4(10) would have no application should the jury find the accident was, in part, proximately caused by a failure of the District to adequately supervise and control them. Such was the basis of the City’s claims, and as we have discussed, substantial evidence supports the jury’s affirmative finding on the issue. We conclude section 670.4(10) does not afford the protection from suit claimed by the District in this case.

B. Section 670.4(3)

The District relies on another exemption from liability found in section 670.4, commonly known as discretionary function immunity. Section 670.4(3) immunizes the District from

[a]ny claim based upon ... the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the municipality or an officer or employee of the municipality, whether or not the discretion is abused.

Iowa Code § 670.4(8). The District contends it is entitled to this immunity “to the extent that the city’s claims were based upon the exercise or performance or failure to exercise or perform a discretionary function or duty.”

The District’s liability was predicated on its failure to use ordinary care either in implementing school board policy for field trips, or in supervising the kindergarten class at Safety City. We apply a two-step analysis to each specification of negligence to determine whether the District’s challenged actions fall within the discretionary function exemption, inquiring (1) whether the action in question was a matter of judgment or choice for the acting employee and (2) whether, if an element of judgment is involved in the challenged conduct, the judgment is of a kind that the discretionary function exception was designed to shield. Goodman v. City of Le Claire, 587 N.W.2d 232, 237-38 (Iowa 1998) (citing Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)). If the answer to either question is “no,” the discretionary function exemption does not apply.

With respect to the first specification of negligence, that the District failed to use ordinary care in implementing its policy for field trips, the District’s policy manual required that the principal determine “the amount and type of supervision appropriate for the activity.” Although the decision as to what supervision should have been provided on the field trip was a matter for the principal’s judgment, the requirement that he actually make a determination about the appropriate amount and type of supervision was not a matter of choice. It is specifically mandated by the policy. The City’s claim was premised on Principal Campbell’s failure to exercise that choice, and there is evidence supporting that conclusion. The principal acknowledged he had made no determination as to what type of supervision was appropriate at Safety City, nor had he reviewed or evaluated the field trip, or met with Derek’s teacher beforehand. We conclude the discretionary function exemption does not apply to this specification of negligence; it fails the first step of the analysis.

As to the second specification of negligence, that the District failed to use ordinary care in supervising the class, Ms. Duax’s actions in carrying out her supervisory duties at Safety City did involve matters of judgment. But the judgment is not of the kind the discretionary function exception was designed to shield. The exception protects governmental actions and decisions which are made based on considerations of public policy grounded on social, economic, and political reasons. See id. at 237-40. Such policy considerations are not involved in the decisions made by a teacher in supervising her class. Cf. Hacking v. Town of Belmont, 143 N.H. 546, 736 A.2d 1229, 1233-34 (1999) (finding discretionary function immunity inapplicable to decisions of referees and coaches supervising basketball game where student injured); Alake v. City of Boston, 40 Mass.App.Ct. 610, 666 N.E.2d 1022, 1024-25 (1996) (finding discretionary function immunity inapplicable to claim of negligent supervision by chaperones on school field trip). Under the second step of the analysis, the discretionary function immunity does not apply to this claim.

We conclude the discretionary function immunity doctrine does not provide the District an exemption from liability because the requirements for its application, as outlined in Goodman, are not met.

IV. Jury Instructions

The District challenges the district court’s refusal to give certain jury instructions. Our standard of review for jury instructions is whether prejudicial error by the trial court has occurred. Thavenet v. Davis, 589 N.W.2d 233, 236 (Iowa 1999). A trial court does not err in refusing to submit a proposed instruction when its concepts are embodied in other instructions submitted to the jury. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999); Smith v. Air Feeds, Inc., 556 N.W.2d 160, 166 (Iowa App.1996). The court must give a requested instruction if it correctly states the law, applies to the case, and is not stated elsewhere in the instructions. Foggia v. Des Moines Bowl-O-Mat, Inc., 543 N.W.2d 889, 892 (Iowa 1996).

A.Iowa Code section 670.2

The District’s requested jury instruction No. 4 would have told the jury that they could not assign any fault to the District for any acts or omissions of the parent volunteers at Safety City. It is based on Iowa Code section 670.2, providing in pertinent part:

Except as otherwise provided in this chapter, every municipality is subject to liability for its torts and those of its officers and employees, acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function.
For the purposes of this chapter, employee includes a person who performs services for a municipality whether or not the person is compensated for the services, unless the services are performed only as an incident to the person’s attendance at a municipality Junction.

Iowa Code § 670.2 (emphasis added). The District contends the parent volunteers may not be considered “employees” for whose torts it would be liable under this section, as any supervisory services they performed were only incidental to their attendance at Safety City. The District expresses concern that, in the absence of such an instruction, the jury may have attributed to the District negligence on the part of the parent volunteer who observed the children on the golf cart prior to the accident.

The jury was not instructed that any duty to supervise the children was imposed on the parent volunteers, nor was the jury to determine whether they were negligent. However, no evidence was presented of any duty on the parent volunteers that would require an instruction. The jury was clearly instructed that the District could not be found at fault unless it was proven the District had failed to use ordinary care in supervising the children at Safety City, or in implementing school board policy for field trips. Instructions that are not related to the factual issues to be decided by the jury should not be submitted even though they may set out a correct statement of the law. Bride v. Heckart, 556 N.W.2d 449, 452 (Iowa 1996). We find the court did not err in declining to give the requested instruction.

B.Right of Assumption

The District’s requested jury instruction No. 1 concerned a right of assumption. It would have informed the jury that “[o]ne may presume the due care of others until he knows or in the exercise of reasonable care should know otherwise.” Jorgensen v. Horton, 206 N.W.2d 100, 105 (Iowa 1973). The District contends the instruction was appropriate and the court erred in refusing to give it because the District’s employee was entitled to presume Sergeant Wilson would not leave the key in the golf cart’s ignition.

The presumption relied on by the District would not apply to those who are not themselves exercising ordinary care. 65A C.J.S. Negligence § 118(3) (1966). We have previously determined it was a jury issue whether the District could assume the golf cart was safe for the children to play on, or whether in the exercise of ordinary care it was required to intervene. The District was free to argue it could not have anticipated Sergeant Wilson would leave the key in the golf cart, and that the cart was otherwise harmless. We find no prejudicial error in the court’s refusal to give the requested instruction.

C. Specifications of the City’s Negligence

The District additionally requested an instruction that would have informed the jury about the nature of the City’s claim for contribution against it, and would have set forth different specifications of negligence under which the City had admitted liability. The District complains the jury was only instructed that the City admitted its liability. In the absence of an instruction setting forth the manner in which the City was negligent, the District contends the jury was unable to properly and accurately compare the City’s fault with that of the District. See, e.g., Schwennen v. Abell, 471 N.W.2d 880, 886 (Iowa 1991).

Without deciding whether the district court should have given such an instruction, we find that any error was not prejudicial. The basis of the City’s liability— Sergeant Wilson’s action in leaving the golf cart unattended with the key in the ignition — was clear from the evidence. We are convinced the jury had no difficulty in comparing the fault of the parties without the instruction.

V. Contribution

The District contends the City is not entitled to contribution as a matter of law. Contribution is an equitable remedy requiring joint tortfeasors hable to an injured third party to share the burden of damages. Heine v. Allen Mem’l Hosp. Corp., 549 N.W.2d 821, 824 (Iowa 1996). Generally, contribution rests on common liability of two or more actors for a third-party’s damages, even though their liability may rest on different grounds. Schreier v. Sonderleiter, 420 N.W.2d 821, 824 (Iowa 1988).

The District relies on the principle that one who must indemnify another is precluded from claiming contribution against that person. Stowe v. Wood, 199 N.W.2d 323, 327 (Iowa 1972). The District argues it was entitled to indemnity from the City because the City owed it an independent duty to conduct Safety City in a safe manner. The District also argues it was entitled to indemnity under section 886B of the Restatement (Second) of Torts, which provides in pertinent part:

(1) If two persons are liable in tort to a third person for the same harm and one of them discharges the liability of both, he is entitled to indemnity from the other if the other would be unjustly enriched at his expense by the discharge of the liability.
(2) Instances in which indemnity is granted under this principle include the following.
(e) The indemnitor created a dangerous condition of land or chattels as a result of which both were liable to the third person, and the indemnitee innocently or negligently failed to discover the defect.

Restatement Second of Torts § 886B, at 344-45 (1979).

We agree that the City owed a duty to the District as well as to the children to conduct the program safely. But the District likewise owed a duty to the City to supervise and control the conduct of the children at Safety City. Moreover, the District’s liability was not based on the City’s creation of a dangerous condition or the District’s negligent failure to discover the condition, but on its own negligent supervision of the children. Both indemnity and contribution are based on equitable principles. Iowa Elec. Light & Power Co. v. General Elec. Co., 352 N.W.2d 231, 234 (Iowa 1984). The jury determined that Derek’s death resulted from breaches by both parties. We conclude the District has no right of indemnity against the City which would preclude the City’s claim for contribution.

VI. Privilege

The final issue raised by the District concerns a discovery matter. During discovery, the District learned that the police officers at Safety City attended debriefing sessions about the accident. The District sought disclosure of the statements made by Sergeant Wilson and Officers Magee and Eieh at the sessions. The City resisted discovery and the officers refused to answer questions concerning the sessions on grounds the information discussed at these “critical incident stress debriefings” was protected by the mental health professional/patient privilege. See Iowa Code § 622.10. The district court agreed and denied the District’s motion to compel.

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. Iowa R. Civ. P. 122(a). A party seeking to resist discovery by asserting a privilege has the burden of showing the privilege exists and applies. AgriVest P’ship v. Cent. Iowa Prod. Credit Ass’n, 373 N.W.2d 479, 482 (Iowa 1985). Privileges are construed narrowly; when a privilege is based on a statute, the terms of the statute define the reach of the privilege. Id. The elements of the professional communications privilege involved here are: (1) the existence of a professional relationship between the mental health professional and the officers; (2) the information was acquired during this relationship; and (3) the information was necessary to enable the mental health professional to treat the officers skillfully. See State v. Deases, 518 N.W.2d 784, 787 (Iowa 1994).

We agree with the City that the matters discussed at the debriefing sessions are privileged. The record indicates the sessions were conducted by a licensed mental health professional for purposes of assisting the officers to deal with the stress of the traumatic incident they had just experienced. The District does not dispute that statements at those sessions were made during the relationship and were necessary for this treatment.

The District contends the privilege does not apply because the communications were not confidential, given the number of persons present at the sessions. It is true the privilege may be lost if the communications are made in the presence of third parties. See State v. Tornquist, 254 Iowa 1135, 1155, 120 N.W.2d 483, 495 (1963). The fact that the sessions were not conducted on a one-on-one basis, however, does not defeat the privilege. See In re Grand Jury Investigation, 918 F.2d 374, 380 (3d Cir.1990) (observing federal privilege protective of group counseling practices). Nor does the presence of third parties defeat the privilege if they are present to assist the mental health professional in some way, or their presence is otherwise necessary to enable treatment. Deases, 518 N.W.2d at 788. Both officers Magee and Eich testified it was understood that nothing said during the sessions was to go beyond the group. Those present at the debriefings were either receiving counseling or assisting in providing the counseling services. We conclude the privilege is not defeated by the presence of third parties.

VII. Conclusion

After having considered each of the issues raised by the District, we find the district court committed no prejudicial error in any of its rulings. Accordingly, we affirm the district court judgment.

AFFIRMED.

All justices concur except CADY, J., who takes no part.


source: Caselaw Access Project

author: STREIT, P.J.

license: Public Domain

text:
    IOWA WASTE SYSTEMS, INC., an Iowa Corporation, Plaintiff-Appellant, v. BUCHANAN COUNTY, Iowa, a Municipal Corporation and Governmental Subdivision of the State of Iowa, and Buchanan County Sanitary Landfill Commission, a Statutorily Created Governmental Entity, Defendants-Appellees.
    No. 99-751.
    Court of Appeals of Iowa.
    May 31, 2000.

      Sean P. Conboy, Douglas E. Gross, and James L. Pray of Brown, Winick, Graves, Gross,' Baskerville- and Schoenbaum, P.L.C., Des Moines, for appellant.
    James E. Brick of Brick, Gentry, Bowers, Swartz, Stoltze, Schilling & Levis, P.C., Des Moines, for appellee-Buchanan County Sanitary Landfill Commission.
    Allen W. Vanderhart, County Attorney, for appellee-Buchanan County.
    Heard by STREIT, P.J., and ZIMMER and HECHT, JJ.
   STREIT, P.J.

English Jurist, John Selden, best expresses Iowa Waste Systems’ dissatisfaction with the trial court’s ruling regarding its numerous equitable claims in writing,

Equity is a rougish thing. For Law we have to measure, know what to trust to; Equity is according to the conscience of him that is Chancellor, and as that is larger .or narrower, so is Equity. ‘Tis all one as if they should make the standard for the measure we call a “foot” a Chancellor’s foot;- what an uncertain measure would this be! One Chancellor has a long foot, another a short foot, a third an indifferent foot. ‘Tis the same thing in the Chancellor’s conscience.

Richard Milward, Equity, in Table Talk of John Selden (Frederick Pollock ed.1927) (1689). However, as we find our feet to be roughly the same size as the trial court’s, we affirm the trial court and deny all claims of error.

I. Background Facts,

In 1980 Buchanan County leased to Nishna Sanitary Service, Inc; a large plot of land in order to operate what was to be the Buchanan County Landfill. The lease was to continue on a year-to-year basis, unless notice was given on or before September 1 on any given year, whereupon the lease would terminate on March 1 of the following year. In 1994 the Buchanan County Sanitary Landfill Commission entered into an operating agreement with Nishna that delineated the responsibilities and expectations of both parties concerning the operation of the landfill. The operating agreement was effective for a three-year term and was to be extended automatically for an additional three years, unless notice was given on or before January 1 of the final year, whereupon the operating agreement would terminate on July 1 of that year. The operating agreement placed the day-to-day operational costs on Nishna and required the Landfill Commission to pay for leachate control and other closure costs.

In 1996 Nishna sold its landfill operations to Iowa Waste Systems, Inc. As part of that sale, Iowa Waste signed an “Acknowledgment of Transfer” whereby Iowa Waste would be substituted as the party of interest under both the lease and the operating agreement. After it had been operating the landfill for a few months, the Landfill Commission informed Iowa Waste it would be terminating their operating agreement effective July 1, 1997. Iowa Waste expected the notice of termination, but believed a new long-term operating agreement would be agreed upon.

Three months after receiving the notice of termination, Iowa Waste and the Landfill Commission began negotiating for (1) the sale of the landfill to Iowa Waste, (2) a new twenty-five-year operating agreement between the parties, and (3) Iowa Waste to reimburse the Landfill Commission the $200,000 it spent on implementation of the leachate control plan. A few weeks later, the Landfill Commission voted to enter into a letter of intent with Iowa Waste in preparation for the final agreement, but also cautioned that the final agreement was subject to ultimate approval by both the Landfill Commission and the Buchanan County Board of Supervisors. Shortly thereafter, the Landfill Commission rescinded its letter of intent and voted to close the landfill. The County then exercised its right to terminate the lease and notified Iowa Waste.

The termination of the operation agreement became effective July 1,1997, but the lease for the land did not expire until March 1, 1998. Iowa Waste could not accept additional waste after June 30, 1997, but did have the right to remain on the property for an additional eight months. Immediately following the termination date of the operating agreement, the Landfill Commission, on numerous occasions, requested access to the landfill in order to take over the leachate control measures and begin closure of the landfill. The Landfill Commission also notified Iowa Waste that in the event it failed to grant the Landfill Commission access, it would be solely responsible for the costs of continuing to perform leachate control activities. Iowa Waste refused to allow the Landfill Commission access to the site, continued to simply recirculate the leach-ate back through the landfill as a temporary measure, and continued to bill the Landfill Commission for the costs of those measures. The Landfill Commission refused to pay these bills.

Iowa Waste barred the Landfill Commission from the land for nearly seven months, during which time the Landfill Commission continued to reiterate its desires to gain access to the property and take over the leachate control measures. Finally on January 26, 1998, Iowa Waste granted the Landfill Commission access to the site in order to initiate permanent leachate control measures.

II. Procedure.

Iowa Waste filed suit against the County and the Landfill Commission in May of 1997, alleging: (1) the Landfill Commission breached the operating agreement when it refused to pay for the implementation of the approved leachate control measures, (2) it was entitled to declaratory judgment regarding its continued possession of the land until the expiration of the lease, the Landfill Commission’s obligation to pay for the leachate control measures, and attorney fees (3) it was entitled to indemnification, under the terms of the operating agreement, for costs of implementing the leachate control plan and the attorney fees generated in litigating this claim, (4) the Landfill Commission should be made to specifically perform on the operating agreement, (5) the Landfill Commission should be estopped from revoking the letter of intent under a theory of promissory estoppel, and (6) the Landfill Commission’s termination of the operating agreement constituted an unconstitutional taking as it rendered Iowa Waste’s disposal permit worthless. The Landfill Commission answered the petition and counterclaimed alleging among other things, (1) Iowa Waste breached the operating agreement by not following all applicable Iowa Department of Natural Resources regulations, (2) Iowa Waste operated the landfill negligently, and (3) Iowa Waste breached the lease by failing to restore the land used to farmland. The County also answered the petition and filed a series of counterclaims.

On summary judgment, the district court: (1) ordered on the declaratory judgment claim that the Landfill Commission was, under the agreement, only responsible for all leachate control costs prior to the termination of the operating agreement, but permitted the claim for attorney fees to proceed to trial; (2) permitted Iowa Waste’s indemnification claim to proceed only as to future claims of contamination; and (3) dismissed Iowa Waste’s claims of promissory estoppel and unconstitutional taking. Based on the court’s handling of the declaratory judgment claim, Iowa Waste amended its petition to include a claim of “quantum meruit/unjust enrichment” for services provided after the termination of the operating agreement. The surviving claims of both parties proceeded to a bench trial. The court ruled, relevant to the present appeal, (1) Iowa Waste was not entitled to recovery on its claim of quantum meruit/unjust enrichment, (2) Iowa Waste could not recover its attorney fees under the contract, (3) the Landfill Commission could recover under breach of contract and negligence for Iowa Waste’s operation of the landfill, and (4) Iowa Waste breached the lease by not restoring the land subject to the lease to farmland.

Iowa Waste appeals claiming the trial court erred in: (1) denying recovery on the basis of quantum meruit/unjust enrichment, (2) finding it both negligent and in breach for its operation of the landfill, (3) awarding the County damages for restoration of the land, (4) ushering out its claims of indemnification, promissory estoppel, and unconstitutional taking on summary judgment, and (5) denying recovery of attorney fees.

III. Continued Leachate Recirculation.

Iowa Waste first claims it was denied equitable relief from the costs it incurred in continuing to perform certain leachate measures after the termination of the operating agreement. Iowa Waste blurs two distinct theories of recovery, quantum me-ruit and unjust enrichment, as its basis for recovery. However despite the years of inseparably connecting these two terms, the two terms are not only markedly different, but not even rooted in the same legal genre. See Bloomgarden v. Coyer, 479 F.2d 201, 208 (D.C.Cir.1973); H. Hugh McConnell, Distinguishing Quantum Meruit and Unjust Enrichment in the Construction Setting, 71 Fla. B.J. 88, 88 n. 2 (1997) [hereinafter Distinguishing Quantum Meruit]. In order to appropriately address both theories, we must delve into their respective historical underpinnings and pinpoint where the two theories diverge.

The antiquated term quantum meruit literally means “as much as he deserved” and was historically employed in seeking compensation for agreed upon services under the common law writ of as-sumpsit (meaning “he undertook or promised”). Drake v. Block, 247 Iowa 517, 522, 74 N.W.2d 577, 580 (1956); Distinguishing Quantum Meruit, 71 Fla.B.J. at 88 n. 3. The common writ of assumpsit was not grounded in modern contract law but was simply a remedy designed to hold persons liable for promises not made under the King’s seal — whether expressly stated, implied by their actions, or where no promise existed but justice required the at-law imposition of a judicially-created fictional promise. 1 Arthur Linton Corbin, Corbin on Contracts § 1.18, at 51 (rev.ed.1993) [hereinafter Corbin on Contracts]. The term quantum meruit was pled under the common writ of assumpsit in those situations where services were performed based upon actions implying mutual assent and the party receiving the services refused to pay for them, whereas unjust enrichment, although still pled under the common writ of assumpsit, was utilized in those situations where there was no assent but a promise was equitably imputed to serve justice. Id.; Distinguishing Quantum Meruit, 71 Fla.B.J. at 88, n. 1. The likely historical source of confusion between the two terms lies in their mutual employment under the general writ of as-sumpsit. See Paffhausen v. Balano, 708 A.2d 269, 271 n. 3 (Me.1998). However, with the advent of modern contract law, the two terms diverged and no longer fell under the same general cause of action. Rather, quantum meruit became grounded in the realm of pure contract, whereas unjust enrichment was placed in the equitable sphere of quasi contract.

In modern contract law, there have traditionally been two types of contracts — -express and implied. Irons v. Community State Bank, 461 N.W.2d 849, 855 (Iowa App.1990). “When the parties manifest their agreement by words, the contract is said to be express.” Id. When there “is merely a tacit promise, one that is inferred in whole or in part from expressions other than words on the part of the promisor” it is said to be implied in fact. Corbin on Contracts § 1.18, at 51. Thus, the antiquated term quantum meruit is actually used to denote a particular subclass of implied-in-fact contracts — an implied-in-fact contract to pay for services rendered. See Bloomgarden v. Coyer, 479 F.2d at 208. Recovery, therefore, on a claim of quantum meruit is guided by all present notions of contract law. United States ex rel. Modern Elec., Inc. v. Ideal Elec. Sec. Co., 81 F.3d 240, 246 (D.C.Cir. 1996); Carvel Co. v. Spencer Press, Inc., 708 A.2d 1033, 1036 (Me.1998). True to its contractual roots, one may recover under a claim of quantum meruit, or more accurately a breach of an implied-in-fact contract, for the reasonable value of the services provided and the market value of the materials furnished. See Paffhausen v. Balano, 708 A.2d at 271; Distinguishing Quantum Meruit, 71 Fla.B.J. at 88.

Unjust enrichment on the other hand is not grounded in contract law but rather is a remedy of restitution. Irons v. Community State Bank, 461 N.W.2d at 855. As it is not grounded in pure contract law such remedies are often referred to as quasi contracts or implied-in-law contracts. Id.

A quasi-contractual obligation is one that is created by law for reasons of justice, without any expression of assent and sometimes even against a clear expression of dissent. If this is true, it would be better not to use the word “contract” at all. Contracts are formed by expressions of assent. Quasi contracts quite otherwise. The legal relations between contractors are dependent upon the interpretation of their expressions of assent. In quasi contract the relations of the parties are not dependent on such interpretations.

Corbin on Contracts § 1.20, at 64. Unjust enrichment is the modern designation for the doctrine of quasi contracts or contracts implied in law. Smith v. Stowell, 256 Iowa 165, 173, 125 N.W.2d 795, 799 (Iowa 1964). Damages under a claim of unjust enrichment are limited to the value of what was inequitably retained. See Paffhausen v. Balano, 708 A.2d at 271.

We now turn to the substance of Iowa Waste’s respective claims.

A. Implied-in-Fact Contract for Services (Quantum Meruit).

1. Standard of Review. Quantum meruit recovery based on an implied-in-fact contract is normally reviewed for correction of errors at law. See Frontier Properties Corp. v. Swanberg, 488 N.W.2d 146, 147 (Iowa 1992). However, because the parties agreed to try the case in equity our review is not at law but de novo. Weinhold v. Wolff, 555 N.W.2d 454, 458 (Iowa 1996).

2. The Merits. In order to establish an implied-in-fact contract to pay for services, the party seeking recovery must show:

(1) the services were carried out under such circumstances as to give the recipient reason to understand:
(a) they were performed for him and not some other person, and
(b) they were not rendered gratuitously, but with the expectation of compensation from the recipient; and
(2) the services were beneficial to the recipient.

Bloomgarden v. Coyer, 479 F.2d at 208-09 (footnote omitted). In the present case, the actions of Iowa Waste were not carried out in a manner that would reasonably indicate the Landfill Commission assented to its actions and simply failed to address the cost of these services. Three days after the termination of the operating-agreement, the Landfill Commission not only requested the right to take over the site and perform the requisite leachate measures, but additionally informed Iowa Waste if it did not wish to grant access to the property, it would be solely obligated to protect the environmental integrity of the site. Such a direct declaration of dissent flies squarely in the face of an implied-in-fact contract for provided services. It clearly was not reasonable on the part of Iowa Waste to believe the Landfill Commission recognized any obligation to pay for these services. Given this overt failure of mutual assent, we cannot find the existence of an implied-in-fact contract for services performed after the expiration of the operating agreement. The trial court is affirmed as to this issue.

B. Unjust Enrichment.

1. Standard of Review. As a claim for unjust enrichment is rooted solely in equitable principles, our review is de novo. Iowa R.App.P. 4.

2. The Merits. To recover on the basis of unjust enrichment, Iowa Waste must show: (1) it conferred a benefit upon the Landfill Commission to its own detriment, (2) the Landfill Commission had an appreciation of receiving the benefit, (3) the Landfill Commission accepted and retained the benefit under circumstances making it inequitable for there to be no return payment for its value, and (4) there is no at-law remedy that can appropriately address the claim. See Irons v. Community State Bank, 461 N.W.2d at 855; Britvar v. Schainuck, 791 P.2d 1183, 1184 (Colo.App.1989). The only elements of contention in this case concern whether Iowa Waste conferred a benefit on the Landfill Commission and whether the circumstances surrounding that alleged conferment ring of inequity or injustice if return payment for the value of those services was not ordered.

Whether Iowa Waste’s recirculation efforts constituted a benefit to the Landfill Commission is as murky as the leachate itself. The record is void of evidence regarding the responsibility of the parties, given their respective legal statuses, if leachate was permitted to migrate off site. It is further unclear whether merely recirulating the leachate amounted to a benefit, when: (1) the volume of the leach-ate remained constant and the Landfill Commission would still bear ultimate responsibility for removing and treating all leachate; (2) the Landfill Commission could perform the same tasks as Iowa Waste, but in a more cost-efficient manner; and (3) the ultimate costs in removing and treating the leachate actually increased due to Iowa Waste’s delay in permitting the Landfill Commission access to the site. Given this murkiness, we cannot find Iowa Waste met its burden of proof in establishing a conferment of an actual benefit upon the Landfill Commission.

Regardless of whether the actions of Iowa Waste can be construed as a benefit, we find the equities do not support a claim for unjust enrichment. The underlying policy issue surrounding a recognizable claim for unjust enrichment is, regardless of the legal position of the parties, a situation has arisen making it inequitable or unjust not to order restitution. The series of events surrounding Iowa Waste’s claim, however, simply do not appeal to this underlying sense of justice. Immediately after the termination of the operating agreement, the Landfill Commission not only informed Iowa Waste it would not pay for any further leachate control measures, but repeatedly offered to perform the control measures itself and hold Iowa Waste completely harmless. Iowa Waste, however, refused to grant the Landfill Commission access to the land and even sought to enjoin it from coming onto the property. Such a situation does not conjure notions of justice. That being the case, we cannot find the Landfill Commission was unjustly enriched. The trial court properly denied Iowa Waste restitution.

IV. The Cost of Intermediate Cover.

Iowa Waste next claims the trial court erred in granting the Landfill Commission damages for Iowa Waste’s alleged failure to provide the proper depth of soil cover on the refuse as required by law. It claims there was insufficient evidence to support a breach of contract or that it was negligent.

A. Standard of Review. Although claims of breach of contract and negligence are usually tried at law, our review here is de novo as the parties agreed to try the case in equity. Weinhold v. Wolff, 555 N.W.2d at 458.

B. The Merits. The operating agreement between the parties required, among other things, that Iowa Waste comply with all applicable DNR regulations. Among those regulations is a requirement that: (1) all solid waste be covered with six inches of compacted soil at the end of each day, (2) an additional six inches of compacted soil be added within a week, and (3) an additional foot of compacted soil be added within sixty days — a grand total of two feet. Iowa AdmimCode r. 567-103.3(2)(b) — (d). The Landfill Commission, in support of its contention that Iowa Waste failed to provide sufficient adequate intermediate cover and therefore not only breached the contract but was negligent, offered the undisputed evidence of an expert who measured the amount of cover on the site and determined an additional 19,-700 cubic yards of soil were needed to bring the site to statutory compliance. Iowa Waste attempts to refute this concrete physical evidence by arguing the DNR never cited the landfill for having inadequate cover. Simply because it was never caught by a governing authority does not make the existence of concrete evidence to the contrary moot. We find there was ample evidence of both a material breach of contract and an act of negligence on the part of Iowa Waste. The damages awarded on this specific count of the counterclaim is affirmed.

V. Restoration of the Borrow Area.

Iowa Waste next claims the .trial court erred in awarding the County damages for Iowa Waste’s failure to.restore to farmland the area from which soil was borrowed to cover the refuse (the borrow area). Iowa Waste claims the language of the lease does not mandate such restoration, the County’s entrance on the site constituted a surrender of the lease,' and the provision requiring restoration became impossible due to legislation.

A. Standard of Review. We generally review the interpretation and construction of a contract as a matter of law. Hartig Drug Co. v. Hartig, 602 N.W.2d 794, 797 (Iowa 1999). However, our review here is de novo as the parties agreed to try the case in equity. Weinhold v. Wolff, 555 N.W.2d at 458.

B. The Lease Language. The lease between the parties included the following provision: “All land used for sanitary landfill shall be restored to farmland upon expiration of the landfill operation.” Iowa Waste claims the provision should be so narrowly construed as to include only that land actually filled with refuse, and had the parties intended to include all land involved in the sanitary landfill operation the contract should have so stated.

When interpreting contractual terms, we must ascertain the meaning and intention of the parties as expressed by the language used. Pathology Consultants v. Gratton, 343 N.W.2d 428, 434 (Iowa 1984). The terms of the document, however, must also be read in light of the surrounding circumstances and given their practical meaning. Kroblin v. RDR Motels, Inc., 347 N.W.2d 430, 433 (Iowa 1984).

We cannot give the phrase “land used in sanitary landfill” such a narrow construction as to include only that land expressly used for the deposit of refuse. The synergy between the actual landfill and the area where soil is taken to cover the landfill cannot be denied. The soil taken from this land was utilized to provide the needed cover on the landfill itself. The reasonable and practical interpretation of the phrase includes the borrow area.

C. Surrender of the Lease. Iowa Waste next claims its grant of permission to the Landfill Commission to enter the land constituted a surrender of the lease and it was therefore released from any covenants contained in that lease. See Parris-West Maytag Hotel Corp. v. Continental Amusement Co., 168 N.W.2d 735, 738 (Iowa 1969). The surrender of a lease is the yielding up of “the estate to the landlord, so that the leasehold interest becomes extinct by mutual agreement between the parties.” Beall v. White, 94 U.S.(4 Otto) 382, 389, 24 L.Ed. 173 (1876). A landlord’s acceptance of surrender may be express or implied. Parris-West Maytag Hotel Corp. v. Continental Amusement Co., 168 N.W.2d at 738. Factors significant in determining whether surrender has occurred include, the changing of locks by the landlord, whether the tenant still had property on the premises, whether the tenant could still access the property, and if the tenant continued to pay rent or utilities. See English v. Standard Optical Co., 814 P.2d 613, 618 (Utah Ct.App.1991). Iowa Waste failed to present evidence the actions of the parties constituted a surrender. There was no evidence regarding who controlled the property, whether rent was paid, or whether Iowa Waste continued to have property on the site. Furthermore, the agreement of the parties specifically grants the County access to the site through the end of the lease term. The language of the agreement only provides the County access to the site. There is simply no evidence of an express or implied mutual agreement to surrender the land.

D. Impossibility. Iowa Waste additionally claims the term of the contract which called for restoration became objectively impossible and it was therefore under no obligation to perform that portion of the lease agreement. However, the trial court never ruled on the applicability of the impossibility doctrine to the borrow area. The issue was raised in the pretrial pleadings and motions, but there is no mention of impossibility in the trial court’s findings of fact and conclusions of law. Under Iowa Rule of Civil Procedure 179(b), a party must alert the trial court of its failure to-resolve an issue, claim, or other theory properly submitted to preserve error. Iowa R.Civ.P. 179(b); Ritz v. Wapello County Bd. of Supervisors, 595 N.W.2d 786, 789 (Iowa 1999). The purpose of a rule 179(b) motion is “to advise counsel and the appellate court of the basis of the trial court’s decision in order that counsel may direct his attack upon specific adverse findings or rulings in the event of an appeal.” Berger v. Amana Society, 254 Iowa 1036, 1040, 120 N.W.2d 465, 467 (1963). As Iowa Waste did not move under Iowa Rule of Civil Procedure 179(b) for an enlargement or modification of its conclusions, it is procedurally barred from review. The trial court is affirmed.

VI. Conclusion.

We have carefully considered all claims urged by Iowa Waste, whether directly addressed herein or not, and find them to be without merit. The trial court is affirmed not only in regard to its trial findings but in its rulings on summary judgment as well.

AFFIRMED.

      . Leachate is the liquid produced as a result of rain and surface water filtering through the various layers of garbage.

      . The act of simply recirculating the leachate by way of pumps was only a temporary remedy. More permanent leachate control measures were required by the Iowa Department of Natural Resources (DNR) and had to implemented on a specific timetable. These permanent measures included collecting the leachate into large storage containers, and then transporting the leachate by way of truck to a water treatment plant.

      . The other sub specie of an implied-in-fact contract was called quantum valebant and was pled in the situation where goods were delivered upon actions implying mutual assent but were not paid for. See Corbin on Contracts % 1.18(b).

      . As the term quantum meruit is not only antiquated but inevitably breeds confusion, the preferred phrase for asserting such a cause of action is an implied-in-fact contract. In fact, even the distinction between an express contract and one implied in fact is viewed as somewhat superfluous. All contracts rest on some overt communication of assent between the parties, whether written, oral, in sign language, or expressed by actions. Corbin on Contracts § 1.19, at 55-57. Thus, all contracts must be expressly communicated in some form or another. Furthermore, all contracts rest on the implications and inferences connoted by a particular choice of words, signs, or actions. Id. Thus, some implied meaning must be attributed to any communication of assent. Therefore, "the distinction between an express and an [implied-in-fact] contract ... is of little importance, if it can be said to exist at all.” Id. § 1.19, at 57.


author: VOGEL, P.J.

text:
    STATE of Iowa, Plaintiff, v. IOWA DISTRICT COURT FOR JOHNSON COUNTY, Defendant.
    No. 99-1516.
    Court of Appeals of Iowa.
    June 28, 2000.

      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, J. Patrick White, County Attorney, and Emily Colby, Assistant County Attorney, for plaintiff.
    Chad W. Thomas, University of Iowa Student Legal Services, and Terri L. Tjeb-kes, Student Legal Intern, Iowa City, for defendant.
    Considered by VOGEL, P. J., and MAHAN and MILLER, JJ.
   VOGEL, P.J.

The State petitioned for a writ of certio-rari from a district court order granting Nikole Taylor a deferred judgment on her conviction for operating while intoxicated. Because we find the trial court erred in using the preliminary breath test result over the Intoxilyzer test result in granting the deferred judgment, we sustain the writ.

Background facts. Taylor was charged with operating while intoxicated in violation of Iowa Code section 321J.2 (1997). Erik Lippold, the arresting officer, administered a preliminary breath test, which indicated an alcohol concentration of .15. Taylor was arrested and, pursuant to the implied consent provisions of section 321J.6, was administered an Intoxilyzer test. The result of this test indicated an alcohol concentration level of .161. Taylor entered a plea of guilty and requested the court grant her a deferred judgment. The district court complied with her request. The State now seeks certiorari from the court’s order, alleging Taylor lacked eligibility for a deferred judgment under Iowa Code section 321J.2(3)(a).

Scope of review. Our review on certiorari is for the correction of errors at law. State v. Iowa District Cowtfor Polk County, 581 N.W.2d 640, 643 (Iowa 1998). Our case law provides that criminal sentences not authorized by statute are void and cannot be permitted to stand. State v. Draper, 457 N.W.2d 600, 605-06 (Iowa 1990); State v. Ohnmacht, 342 N.W.2d 838, 842 (Iowa 1983).

Preservation of error. Taylor contends the State failed to preserve error by filing its writ of certiorari within thirty days from the allegedly illegal sentencing of the trial court. The State contends its filing was made within the thirty-day limitation. However, even if it was not filed timely, the State argues the thirty-day requirement is inapplicable because an illegal sentence may be corrected at any time. See Iowa R.Cr.P. 23(5)(a); see also State v. Tornquist, 600 N.W.2d 301, 307 (Iowa 1999). We have adopted the rule that the concept of error preservation is not available to the appellee when the appeal is from an illegal or void sentence. Ohnmacht, 342 N.W.2d at 843; Gatton v. Brewer, 268 N.W.2d 185, 188 (Iowa 1978). Accordingly, we reject Taylor’s argument on error preservation and proceed to the merits.

Eligibility of deferred judgment. Taylor filed a written guilty plea to the charge of operating while intoxicated. Her written plea contained this statement: “I have read the Minutes of Testimony filed with the Trial Information and do not contest the accuracy of those minutes.” The factual basis of her plea is found by reading her plea in conjunction with the trial information and minutes of testimony. See State v. Hightower, 587 N.W.2d 611, 614 (Iowa App.1998) (holding the court may determine a factual basis for a guilty plea by reference to the minutes of testimony). The minutes of testimony contained the proposed testimony of the arresting officer, stating that the Intoxilyzer test results established an alcohol concentration of .161.

Taylor requested a deferred judgment from the trial court. The State, however, opposed this request, arguing Taylor was not eligible for such a judgment under Iowa Code section 321J.2(3)(a), which states:

[t]he court shall not defer judgment or sentencing, or suspend execution of any mandatory minimum sentence of incarceration applicable to the defendant under subsection 2, and shall not suspend execution of any other part of a sentence not involving incarceration imposed pursuant to subsection 2, if any of the following apply:
(1) If the defendant’s alcohol concentration established by results of an analysis of a specimen of the defendant’s blood, breath, or urine withdrawn in accordance with this chapter exceeds .15 ...

The trial court found Taylor was eligible for a deferred judgment as her preliminary breath test results were .15 at the time of her arrest.

The State alleges the trial court erred in using the lower number rather than the more rehable Intoxilyzer result of .161, which would eliminate Taylor as a candidate for a deferred judgment. The Iowa Code, according to the State, plainly delineates the purpose of the preliminary breath test and excludes the results from use as evidence in a trial except for a limited purpose. Iowa Code section 321J.5(2) states:

The results of this preliminary screening test may be used for the purpose of deciding whether an arrest should be made or whether to request a chemical test authorized in this chapter, but shah not be used in any court action except to prove that a chemical test was properly requested ■ of a person pursuant to this chapter.

The primary goal of statutory construction is to determine and give effect to the legislature’s intent. State v. Johnson, 528 N.W.2d 638, 640 (Iowa 1995). That intent is evidenced by the words used in the statute. State v. Adams, 554 N.W.2d 686, 689 (Iowa 1996). In the absence of a legislative definition of a term or a particular meaning in the law, we give words their ordinary meaning. State v. White, 545 N.W.2d 552, 555 (Iowa 1996). The plain reading of this Code section establishes the limited use for the preliminary breath test. This test can be easily administered by officers in the field to determine whether an arrest should be made and whether a more accurate, reliable chemical test should be requested of the defendant. State v. Deshaw, 404 N.W.2d 156, 158 (Iowa 1987). That is how the preliminary breath test was used in this case. The Code section also plainly states the preliminary test may not be used in any court action except for the limited purpose so defined, which does not include use for determining a sentencing option.

While the minutes of testimony included both the results of the preliminary breath test and the Intoxilyzer test, the factual basis of the guilty plea could not be established by relying solely on the results of the preliminary test. Therefore the Intox-ilyzer result of .161 was an essential fact supporting Taylor’s plea. In choosing to rely on the results of the preliminary breath test over the Intoxilyzer test, the court selected a sentence not allowed by law under the facts of this case.

Therefore, we conclude the trial court erred in expanding the use of a preliminary breath test beyond the narrow delineations of section 321J.5(2) and exceeded its authority in granting Taylor a deferred judgment. Accordingly, we sustain the writ of certiorari and remand for resen-tencing.

WRIT SUSTAINED.