source: Caselaw Access Project

author: WILLIS, Judge.

license: Public Domain

text:
    Angela Marie NORDSTROM, Plaintiff/Creditor, Appellant, v. Connie J. EATON d/b/a Lakeside Music Cafe, Defendant/Debtor, Fireman’s Fund Insurance Co. of Wisconsin, Respondent, Dolliff, Inc., et al., Respondents.
    Nos. C7-01-2200, C3-02-339.
    Court of Appeals of Minnesota.
    Oct. 10, 2002.

      John C. Dunlap, Dunlap, Ritts & Rivers, Stillwater, MN; and Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, MN, for appellant.
    Robert E. Salmon, William M. Hart, Susan B. DeVos, Melissa Dosick Riethof, Meagher & Geer P.L.L.P., Minneapolis, MN, for respondent Fireman’s Fund Insurance Co. of Wisconsin.
    James O. Redman, Redman Law Offices, Red Wing, MN, for respondents Dolliff, Inc., et al.
    Charles A. Bird, Bird & Jacobsen, Rochester, MN, for amicus curiae Minnesota Trial Lawyers Association.
    Considered and decided by HARTEN, Presiding Judge, WILLIS, Judge, and SHUMAKER, Judge.
   OPINION

WILLIS, Judge.

In these consolidated appeals, appellant creditor challenges the district court’s decisions (1) denying her motion for leave to file a supplemental complaint against respondent insurer after the insurer’s disclosure in response to a second garnishment summons and (2) granting respondent insurer’s motion for summary judgment in a declaratory-judgment action. Because appellant’s failure to timely move the district court for leave to file a supplemental complaint against insurer after disclosure by the insurer in response to a first garnishment summons discharged insurer only from any further retention obligation that it might have had to appellant but was not determinative of appellant’s rights, we reverse and remand.

FACTS

In October 1998, Angela Marie Nord-strom was injured in a motor-vehicle accident. She sued Connie J. Eaton, doing business as the Lakeside Music Cafe (Lakeside), under Minnesota’s dram-shop act, alleging that despite his obvious intoxication, Lakeside had continued to serve alcoholic beverages to the person who subsequently drove the vehicle in which Nord-strom was a passenger. Eaton tendered her defense to Fireman’s Fund Insurance Company of Wisconsin (Fireman’s). Fireman’s denied coverage, contending that although it had provided liquor-liability insurance to Pokegama Lakeside Cafe, Lakeside’s predecessor, it had cancelled Lakeside’s liquor-liability policy because Lakeside failed to pay the premiums.

In July 2000, Nordstrom and Eaton entered into a Miller-Shugart settlement agreement by which Eaton stipulated to a $900,000 judgment, and Nordstrom agreed to seek satisfaction of the judgment solely from Fireman’s, Eaton’s insurance agent, or Eaton’s insurance agency. The court approved the settlement and entered judgment.

On January 3, 2001, Nordstrom served a garnishment summons on Fireman’s to collect on the putative insurance policy and on January 19, 2001, Fireman’s served a disclosure on Nordstrom denying that it was indebted to Eaton or possessed any money or property belonging to Eaton. Nordstrom did not move for leave to file a supplemental complaint against Fireman’s within 20 days after the date of service of the disclosure, as provided by Minn.Stat. § 571.79(h) (2000). Instead, in April 2001, Nordstrom commenced a declaratory-judgment action against Fireman’s, seek-, ing a determination that Fireman’s had issued a dram-shop policy to Eaton that was in effect on the date of the accident. Later in April 2001, Nordstrom served a second garnishment summons on Fireman’s, again seeking to collect on the putative insurance policy. Responding to the second garnishment summons, Fireman’s again served a disclosure denying that it held any assets belonging to Eaton and objecting on the ground that Nordstrom’s failure to timely move for leave to file a supplemental complaint after the first garnishment disclosure discharged Fireman’s from any obligation that it might have had to Nordstrom. Nordstrom moved the district court for leave to file a supplemental complaint against Fireman’s. In September 2001, the district court denied that motion, ruling that because Fireman’s had been discharged, Nordstrom was unable to show probable cause that Fireman’s was hable for the judgment debt.

Meanwhile, Fireman’s moved for summary judgment in the declaratory-judgment action on the ground that it was discharged from any further obligation to Nordstrom by operation of the garnishment statute. In October 2001, the district court granted Fireman’s motion. Nordstrom appealed from both the district court’s denial of her motion for leave to file a supplemental complaint and from the adverse summary judgment in the declaratory-judgment action. This court consolidated the appeals.

ISSUE

When a creditor serves a summons to garnish an insurance policy and the insurer discloses under Minn.Stat. § 571.79(a) (2000) that it is not indebted to the debtor and does not possess any property of the debtor, does the creditor’s failure to timely move for leave to file a supplemental complaint against the insurer discharge the insurer completely from any obligation that it might have had to the creditor as to the putative insurance policy?

ANALYSIS

Statutory construction is a question of law reviewed de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

“The purpose of garnishment is to reach property in the hands of the garnishee in order to apply it in satisfaction of the judgment.” Buysse v. Baumann-Furrie Co., 448 N.W.2d 865, 870 (Minn.1989). The purpose of the garnishment statutes is “to protect creditors without injustice to debtors or garnishees.” Knudson v. Anderson, 199 Minn. 479, 484, 272 N.W. 376, 379 (1937) (citations omitted). Statutes must be interpreted and construed “to ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2000).

A creditor may serve a summons on a garnishee to obtain any money or property of the debtor that is within the garnishee’s possession or control. Minn.Stat. § 571.72, subd. 2 (2000). The garnishee must then serve written disclosure of any money or property owing to the debtor within 20 days after service of the summons. Minn.Stat. § 571.75, subd. 1 (2000).

The statute describes the circumstances under which disclosure may result in discharge of the garnishee’s obligations. Minn.Stat. § 571.79 (2000). The section begins:

Except as provided in paragraph (h), the garnishee, after disclosure, shall be discharged of any further retention obligation to the creditor with respect to a specific garnishment summons when one of the following conditions are met:
(a) The garnishee discloses that the garnishee is not indebted to the debtor or does not possess any money or other property belonging to the debtor that is attachable as defined in section 571.73, subdivision 3. The disclosure is conclusive against the creditor and discharges the garnishee from any further obligation to the creditor other than to retain all nonexempt disposable earnings, indebtedness, money, and property of the debtor which was disclosed.

Id. Paragraph (h), in turn, provides that:

The garnishee is not discharged if within 20 days of the service of the garnishee’s disclosure or the return to the debtor of any disposable earnings, indebtedness money, or other property of the debtor, whichever is later, an interested person (1) serves a motion scheduled to be heard within 30 days of the service of the motion relating to the garnishment, or (2) serves a motion scheduled to be heard within 30 days of the service of the motion for leave to file a supplemental complaint against the garnishee, as provided under section 571.75, subdivision 4, and the court upon proper showing vacates the discharge of the garnishee.

Id.

The discharge of the garnishee under paragraph (a) “is not determinative of the rights of the creditor, debtor, or garnishee with respect to any other garnishment summons, even another garnishment summons involving the same parties, unless and to the extent adjudicated pursuant to the procedures described in paragraph (h).” Minn.Stat. § 571.79(g).

Here, after Nordstrom served her first garnishment summons on Fireman’s to obtain insurance proceeds and Fireman’s served a disclosure denying that it was indebted to Eaton or possessed any property belonging to Eaton, Nordstrom did not seek leave to file a supplemental complaint. After serving a second garnishment summons and receiving a second disclosure in which Fireman’s again denied that it was indebted to Eaton or possessed any property belonging to Eaton, Nord-strom then timely sought leave to file a supplemental complaint in response to the second disclosure. The district court denied leave, ruling that Fireman’s had been discharged by operation of Minn.Stat. § 571.79(a) when Nordstrom failed to seek leave to file a supplemental complaint in the first garnishment action.

Nordstrom argues that all of section 571.79 is subject to the introductory language of the section, which provides that after disclosure, the garnishee is discharged only of further retention obligation with respect to a specific garnishment summons, subject to the supplemental-complaint procedure in paragraph (h). Further, Nordstrom notes that paragraph (g) provides that a discharge under paragraph (a) is not determinative unless the discharge is adjudicated pursuant to procedures described in paragraph (h). Fireman’s argues that the language of paragraph (a) is conclusive and that it is therefore discharged from any further obligation to Nordstrom.

The reference to discharge of a retention obligation with respect to a specific garnishment summons in the introduction to section 571.79 and a new paragraph (g) were added by amendments made to section 571.79 in 2000. 2000 Minn. Laws ch. 405, § 20. This court analyzed the version of the statute that existed before the 2000 amendments in Lynch v. Hetman, 559 N.W.2d 124, 127 (Minn.App.1996), review denied (Minn. Mar. 26, 1997). There, we addressed the effect of the failure of a creditor to move for leave to file a supplemental complaint within 20 days after the garnishee served a disclosure under section 571.79(b). Id. In Lynch, the garnishee bank disclosed that it owed the debtor $1,907.28 and would retain that amount pursuant to the garnishment summons; it also disclosed that it held shares of the debtor’s stock as collateral for a loan. Id. at 126. While the creditor informed the bank by letter that the creditor believed the shares were subject to garnishment, it was not until five months later that the creditor sought leave to file a supplemental complaint and an order vacating the garnishee’s discharge as to the stock. Id. The court held that because the creditor failed to move for relief within 20 days, the disclosure discharged the bank’s obligation to the creditor with regard to the stock, leaving the bank free from any further obligation to the creditor. Id. at 128.

Fireman’s argues that under Lynch and a federal case interpreting Minnesota law, Ceridian Corp. v. SCSC Corp., 38 F.Supp.2d 1118, 1119 (D.Minn.1999), affd, 212 F.3d 398 (8th Cir.2000), a garnishee that holds static property such as an insurance policy is automatically discharged by the terms of Minn.Stat. § 571.79(a) of any further obligation to the creditor unless the creditor moves within 20 days after service of disclosure for leave to file a supplemental complaint. Fireman’s contends that because the language of section 571.79(a) was not changed by the 2000 amendments, interpretation of section 571.79(a) should not change. Nordstrom argues that Lynch and Ceridian should not guide our decision here because they addressed the version of section 571.79 that existed before the 2000 amendments. See 2000 Minn. Laws ch. 405, § 20. We agree.

When Lynch and Ceridian were decided, the introduction to section 571.79 provided that after disclosure, the garnishee is discharged “of any further obligation to the creditor” if it met any one of several conditions set out thereafter, including the conditions in paragraph (a), except as provided in what is now paragraph (h). Minn. Stat. § 571.79 (1996). The introduction now provides that the garnishee is discharged “of any further retention obligation to the creditor with respect to a specific garnishment summons.” Minn. Stat. § 571.79 (2000) (emphasis added). Further, a new paragraph (g) was added in 2000, providing that the discharge is not determinative as to the rights of the garnishee with respect to other garnishment summonses “unless and to the extent adjudicated” under the procedures described in paragraph (h), which allow the creditor to seek leave to file a supplemental complaint. Minn.Stat. § 571.79(g), (h).

Fireman’s argues that paragraph (a) is conclusive, and it is discharged “from any further obligation” to Nordstrom. But paragraph (a) is subject to the introductory language of section 571.79, which, again, now provides that a garnishee is discharged of any further retention obligation if certain conditions are met, including when, as here, the garnishee serves the creditor with a disclosure that it holds no money or property of the debtor. While section 571.79 is not a model of clarity, we conclude that the introduction to the section compels the conclusion that a garnishee who makes a disclosure under paragraph (a) is discharged only of any further retention obligation to the creditor with regard to a specific garnishment summons unless the creditor moves for relief under paragraph (h). This interpretation is supported by new paragraph (g), which explicitly states that discharge under paragraph (a) is not determinative of the parties’ rights as to any other garnishment summons, “even another garnishment summons involving the same parties,” unless adjudicated pursuant to paragraph (h). See Minn.Stat. § 571.79(g).

We recognize that this decision renders the 20-day period in paragraph (h) meaningless in the context of a static asset such as an insurance policy, but a plain reading of the statute forces this result. Otherwise, the new introductory language that provides for discharge only of “any further retention obligation to the creditor with respect to a specific garnishment summons” would be of no effect. We also recognize that our interpretation of the statute removes the finality of a discharge that may have existed under the previous version of the statute when a creditor did not move for leave to file a supplemental complaint after disclosure, but we conclude that this was the legislature’s intent in enacting the 2000 amendments.

We are aware that a practice has developed for parties situated similarly to Nordstrom to use the garnishment statute to attempt to reach insurance proceeds. But it is clear that the garnishment statute is designed as a creditors’-remedy procedure to allow a creditor to reach a debtor’s property in the hands of a disinterested third party. In circumstances such as those here, we conclude that the best practice would be to establish coverage through a declaratory-judgment action before serving a garnishment summons on the insurance company. •

In summary, however, we hold that the district court erred in ruling that Fireman’s obligation to Nordstrom relating to the putative insurance policy at issue was fully discharged by Nordstrom’s failure to seek leave to file a supplemental complaint after the first garnishment summons. Instead, only Fireman’s “retention obligation” was discharged, although it is unclear what that term means with respect to a putative insurance policy when the insurance company denies that any such policy is in effect.

We next address Nordstrom’s appeal from the district court’s grant of summary judgment to Fireman’s in the declaratory-judgment action on the ground that Nordstrom’s failure to move for leave to file a supplemental complaint discharged Fireman’s from any obligation it might have had to Nordstrom based on the Miller-Shugart settlement agreement. A motion for summary judgment will be granted when there are no genuine issues of material fact and a party is entitled to judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

Declaratory judgment is available to resolve the issue of whether insurance coverage is available to indemnify an insured. See State v. Joseph, 636 N.W.2d 322, 329 (Minn.2001) (holding that earlier declaratory judgment barred relitigation of coverage issue in later garnishment proceeding). Because we have held that Fireman’s obligation under the putative insurance policy was not discharged by operation of section 571.79(a), the summary judgment, which was based on the determination that Fireman’s obligation had been fully discharged, must be reversed.

DECISION

The district court’s denial of Nord-strom’s motion for leave to file a supplemental complaint in the second garnishment action and its grant of summary judgment in the declaratory-judgment action are reversed, and we remand for further proceedings consistent with this opinion.

Reversed and remanded.

      . In the same act the legislature modified former section 571.80 and recodified it as section 571.79, paragraph (h). 2000 Minn. Laws ch. 405, §§ 20, 25.

      . Lynch addressed section 571.79(b), which applied, and still applies, when the garnishee discloses that it is indebted to the debtor, while this case involves paragraph 571.79(a), which applies when the garnishee discloses that it is not indebted to the debtor. Paragraphs (a) and (b) used, and still use, nearly identical language in providing that such disclosure is conclusive against the creditor and discharges any further obligation to the creditor, except to retain any non-exempt money and property that was disclosed.


author: GORS, Acting Justice. SABERS, Justice

text:
    2002 SD 117
    WINTER BROTHERS UNDERGROUND INC., and Carleen Weatherton, A Taxpayer And Resident of the City of Beresford, Plaintiffs and Appellants, v. CITY OF BERESFORD, South Dakota, A municipal corporation and Ramstad Construction, Inc., a South Dakota Corporation, Defendants and Appellees.
    Nos. 21969, 21991.
    Supreme Court of South Dakota.
    Argued Feb. 13, 2002.
    Decided Sept. 18, 2002.

      Richard J. Helsper of Glover, Helsper & Rasmussen, Brookings, South Dakota, Attorneys for appellant Winter Brothers Underground.
    Thomas H. Frieberg of Frieberg, Rudolph & Nelson, Beresford, South Dakota, Attorneys for appellee City of Beresford.
    Rick L. Ramstad, Timothy J. Wilka, Thomas K. Wilka of Hagen, Wilka & Archer, Sioux Falls, South Dakota, Attorneys for appellee Ramstad Construction.
   GORS, Acting Justice.

[¶ 1.] Winter Brothers Underground (Winter Brothers) appeals the trial court’s order granting summary judgment to the City of Beresford (Beresford) and Ram-stad Construction (Ramstad). We affirm.

FACTS AND PROCEDURE

[¶ 2.] On July 10, 2000, Beresford solicited bids from contractors to prepare a parcel of land for the construction of a Slumberland Furniture Regional Distribution Center (Slumberland). The project included storm sewer, water main, sanitary sewer and other site improvements associated with the construction of Slumberland. Beresford advertised its invitation to bid and received four bids, two of which included Winter Brothers and Ramstad.

[¶ 3.] The bid consisted of 31 line items that required bidders to enter either a lump sum bid or a unit price bid. In particular, Item 3 asked for the bidder’s lump sum bid to grub and clear the site. This work included “all hauling, crushing, rubberizing, labor, tools and workmanship and disposing of all items designated for removal.” The bid also forbade any conditional bids and stated, “[a]ll questions shall be directed to ... Larson Engineering!.]”

[¶ 4.] On July 6, prior to submitting his bid, Cliff Ramstad called Jerry Zeimetz (Zeimetz), the city administrator, and inquired about the possibilities of leaving any excess dirt on the site and disposing of the trees by burning them on site. After contacting the fire marshal, Zeimetz told Ramstad that leaving the dirt and burning the trees would be acceptable. Ramstad also asked Daryl Englund (Englund), the city engineer, if it would be acceptable to place any excess dirt from the project on the adjacent property owned by Beresford. Englund determined this would not pose a problem. Ramstad did not call Larson Engineering to ask these questions, as the bid required. Instead Ramstad relied upon the statements of Zeimetz and En-glund. Beresford did not file an addendum to the bid explaining that burning the trees and placing the dirt on the adjacent property would be. acceptable.

[¶ 5.] After publicly opening the four bids on July 10, Zeimetz announced that Ramstad was the lowest bidder at $271,990.25. Winter Brothers was the next lowest bidder at $280,268.50. Following the opening, Robert Winter (Winter) asked to look at some of the prices on Ramstad’s bid. Winter noticed that Item 3 of Ramstad’s bid was blank, and he informed the city officials. The bid schedule required bidders to complete a bid for each item requested and forbade any conditional bids. Because of this, Winter informed the city officials that the Ramstad bid was illegal.

[¶ 6.] In response to Item 3, the city officials asked Ramstad, in Winter’s presence, if he would accept a bid of zero for Item 3 on the bid schedule. Ramstad agreed. The Beresford City Council accepted Ramstad’s bid the evening of July 10. Ramstad began the project the following day.

[¶ 7.] In the weeks that followed, Winter Brothers brought to Beresford’s attention two additional issues regarding Ram-stad’s bid. One issue related to Ramstad’s conversations with Zeimetz and Englund about the excess dirt and burning the trees. It was discovered that Ramstad had annotated on the back of his bid the understandings Ramstad had with En-glund and Zeimetz about the project. In addition, Ramstad annotated that a manufacturing holdup would delay the installation of storm sewer manhole/drop inlets. Winter Brothers argued that these annotations rendered the bid conditional, in violation of the bidding procedures. Englund determined that the annotations were simply clarifications, not unusual in bidding documents.

[¶ 8.] On August 2, 2000, with the project underway, Winter Brothers filed suit seeking, inter alia, declaratory relief and an order to enjoin the award of the bid to Ramstad. Beresford and Ramstad brought motions to dismiss for Winter Brothers’ lack of standing as an unsuccessful bidder. On September 7, Winter Brothers filed a motion to amend its complaint, adding Carleen Weatherton (Weatherton) as an additional plaintiff and additional grounds for an injunction. On October 11, the trial court granted Winter Brothers’ motion to amend and held Beresford’s and Ramstad’s motions to dismiss in abeyance until trial. Since the project was completed by September 7, Winter Brothers conceded that its claim for injunctive relief was moot, but continued its claim for damages.

[¶ 9.] On September 8, 2000, Ramstad brought a second motion to dismiss, which Beresford later joined, claiming Weather-ton was not a taxpayer with standing to sue. The trial court denied this motion. On February 28, 2001, Ramstad brought motion for summary judgment against Winter Brothers. After a hearing, the trial court granted Ramstad’s motion. The court concluded, ‘Winter does not have standing as an alleged aggrieved bidder to bring an action against [Beresford] or [Ramstad].” The court further concluded that Beresford “complied with the competitive bidding laws of the State of South Dakota and acted within its discretion in awarding [Ramstad] the contract.... ” The trial court did not consider Ramstad’s motion for summary judgment with regard to Weatherton’s standing, concluding it was “unnecessary to reach the issue.”

[¶ 10.] Winter Brothers appeals on the following issues: (1) whether Winter Brothers has standing to sue as an unsuccessful bidder, and (2) whether Weather-ton has standing to sue as a taxpayer.

STANDARD OF REVIEW

[¶ 11.] Our standard of review on a trial court’s grant of summary judgment is well established. “[W]e will affirm only if all legal questions have been decided correctly and there are no genuine issues of material fact.” H & W Contracting, LLC, v. City of Watertown, 2001 SD 107, ¶ 7, 633 N.W.2d 167,171 (citing Estate of Juhnke v. Marquardt, 2001 SD 26, ¶ 5, 623 N.W.2d 731, 732). “The evidence is viewed most favorably to the nonmoving party and reasonable doubts are resolved against the moving party.” Brown Eyes v. South Dakota Dept. of Social Services, 2001 SD 81, ¶5, 630 N.W.2d 501, 504. In this case, the facts are not in dispute. Therefore, this Court only needs to determine whether the trial court correctly applied the law. Id.

ANALYSIS AND DECISION

[¶ 12.] 1. WHETHER WINTER BROTHERS HAS STANDING TO SUE.

[¶ 13.] Whether a party has standing to sue is a legal question, which this Court reviews under the de novo standard. H &W Contracting, 2001 SD 107 at ¶ 9, 633 N.W.2d at 171. Generally, a party establishes standing to challenge the bidding process by showing that he personally suffered an “actual or threatened injury as a result of the putatively illegal conduct of the defendant.” Id. (citing Agar Sch. Disk No. 58-1 v. McGee, 527 N.W.2d 282, 284 (S.D.1995)). Therefore, Winter Brothers must show that Beresford’s action caused an actual or threatened injury.

[¶ 14.] a. Unsuccessful Bidders Lack Standing to Sue.

[¶ 15.] Winter Brothers claims that Ramstad’s bid was illegal, and therefore Winter Brothers was the lowest responsible bidder and entitled to the Slum-berland project. This Court addressed a similar situation in Tri-State Milling Co. v. Bd. of County Comm’rs, 75 S.D. 466, 68 N.W.2d 104 (1955). Tri-State’s holding established that the county’s advertisement for bids was only an invitation for bids. Consequently, bids on a public contract do not give rise to any private right of enforcement until a bid has been accepted. H & W Contracting, 2001 SD 107 at ¶ 10, 633 N.W.2d at 171 (discussing Tri State, supra). In Tri-State, the lowest bidder sued the county when he was not awarded the contract. In deciding whether the lowest bidder was an “aggrieved person” with standing to sue, this Court stated, “[t]he requirement that contracts shall be let to the lowest responsible bidder is intended for the protection of the public rather than that of the bidders. No legally enforceable right vested in the appellant merely because it was ostensibly the lowest bidder.” Tri-State, 75 S.D. at 468, 68 N.W.2d at 105. Therefore, under the rule established in Tri-State, Winter Brothers has no entitlement to the contract, can show no actual or threatened injury, and has no standing to sue.

[¶ 16.] b. Favoritism Gives Unsuccessful Bidders Standing to Sue.

[¶ 17.] This Court has recently, however, adopted a limited exception to the rule announced in Tri-State. In H & W Contracting, this Court stated, “[w]hen the bidding process has been undermined by ‘favoritism, improvidence, extravagance, fraud [or] corruption,’ disappointed bidders have standing to sue on behalf of the public’s interest.” 2001 SD 107 at ¶ 12, 633 N.W.2d at 172 (citing Fonder v. Sioux Falls, 76 S.D. 31, 34, 71 N.W.2d 618, 620 (1955)). Winter Brothers argues that Beresford displayed favoritism (1) by accepting Ramstad’s bid even though Item 3 was blank, (2) by answering Ramstad’s questions and failing to inform the other bidders about the clarification prior to awarding the bid, and (3) by accepting the bid with annotations on the back.

[¶ 18.] c. Favoritism Defined.

[¶ 19.] Black’s Law Dictionary defines “favoritism” as “[i]nvidious preference and selection based on friendship and factors other than merit.” Black’s Law Dictionary 609 (6th ed. 1990). In American Totalisator Co., Inc. v. Seligman, a Pennsylvania court held that favoritism exists whenever the bidders are treated otherwise than by a common standard. 384 A.2d 242, 258 (Pa.Cmwlth. 1977). An opportunity for favoritism is created by the award of a contract to one who fails to submit a bid in full compliance with the bidding requirements. Gaglioti Contracting, Inc. v. City of Hoboken, 307 N.J.Super. 421, 704 A.2d 1301, 1307. See also Gridley v. Engelhart, 322 N.W.2d 3, 8 (S.D.1982) (a bid change is only material if it gives a bidder a substantial advantage over other bidders).

[¶ 20.] d. Was There Favoritism.

[¶ 21.] (1) Accepting Ramstad’s Bid with Item 3 Blank.

[¶ 22.] Winter Brothers alleges that Beresford demonstrated favoritism by accepting Ramstad’s bid even though Item 3 was blank. Beresford asked Ramstad if he agreed that a zero could be inserted in the blank and Ramstad agreed. Although the terms of the bid documents and statutory authority prohibited changing the bid, it was within Beresford’s discretion to correct a clerical error by inserting a zero in the blank line. H &W Contracting, 2001 SD 107 at ¶¶ 18-22, 633 N.W.2d at 174-75. Inserting zero was a detriment to Ramstad because Ramstad was not paid for that work. Conferring a detriment is not favoritism. A bid change is only material if it gives a bidder a substantial advantage over other bidders. Gridley, 322 N.W.2d at 8. Winter Brothers’ bid for Item 3 was $4,000. If Winter Brothers would have been allowed to reduce its bid to zero for Item 3, Ramstad’s bid would still have been more than $4,000 lower. The change only gave Ramstad a disadvantage because he had to do the work for nothing. Therefore, Beresford did not show favoritism to Ramstad by reducing Item 3 to zero.

[¶ 23.] (2) Answering Ramstad’s Questions about Burning Trees and Disposing Dirt.

[¶ 24.] A second claim of favoritism arose out of Item 3. Winter Brothers also alleged that Beresford did not have authority to answer Ramstad’s question about whether it could burn the trees and dispose of the dirt on the construction site. In this case, Beresford did not engage in favoritism by answering Ramstad’s questions about the Slumberland project. While we agree with Winter Brothers that Beresford should have notified the other bidders of the clarification, failing to do so does not amount to favoritism. Beresford merely answered Ramstad’s questions. Courtesy is not favoritism. There is nothing to indicate that if Winter Brothers had called Beresford, it would not have received the same information. In fact, Winter Brothers admitted it also intended to dispose of the dirt on the construction site. Even if Winter Brothers had been given the same information as Ramstad, Winter Brothers would still not be the low bidder.

[¶25.] (3) Accepting Ramstad’s Bid with Annotations on the Back.

[¶ 26.] Winter Brothers complained that Beresford accepted Ramstad’s bid with annotations on the back explaining that late delivery of manholes would delay completion of the project. Ramstad’s annotations were not noticed until Winter Brothers called the annotations to Beres-ford’s attention after Beresford accepted the bid. Therefore, Beresford did not consider the annotations when it awarded the bid to Ramstad.

[¶ 27.] Beresford had discretion on the bid specifications and was apparently satisfied with Ramstad’s performance. Winter Brothers produced no evidence to show that it cost Winter Brothers more to bid the manholes to be delivered at an earlier date or that it cost less for Ramstad to bid the manholes to be delivered at a later date. Innuendo is no substitute for evidence.

[¶ 28.] The purpose of public bidding is to obtain the lowest price for the work to be done. SDCL 5-18-2. Winter Brothers would have Beresford refuse the lowest bid on technicalities and pay Winter Brothers more to do the work. The bidding process should not be so intricate that the goal of obtaining the lowest price is obscured by technicalities and litigation. A public body possesses great discretion in determining the lowest responsible bidder. As the Pennsylvania Supreme Court noted, “[although the rule of compliance is ... emphasized, courts have not eliminated the discretionary aspect of executive decision making when the government is confronted with a non-compliant bid that it might choose to consider to achieve effective utilization of the public fisc.” Gaeta v. Ridley Sch. Dint, 567 Pa. 500, 788 A.2d 363, 367 (2002). In this case, Winter Brothers failed to show that these minor technical violations of the bidding process made a difference.

[¶ 29.] Winter Brothers’ position would cost local governments time and money and promote uncertainty. This was not a case where the low bidder was denied the contract in favor of a higher bidder. Winter Brothers bid $8,000 more than the lowest bid and it seeks relief that would cost Beresford more money. We will not punish Beresford for accepting the lowest bid.

[¶ 30.] 2. WHETHER WEATHER-TON HAS STANDING TO SUE AS A TAXPAYER.

[¶ 31.] The trial court did not consider Ramstad’s motion for summary judgment with regard to Weatherton’s standing to sue, concluding it was “unnecessary to reach the issue.”

[¶ 32.] SDCL 9-1-6 provides that “[a]ny citizen and taxpayer residing within a municipality may maintain an action or proceeding to prevent, by proper remedy, a violation of any provision of [municipal law].” Weatherton must demonstrate, therefore, that she was both a citizen and taxpayer of Beresford. Although Weath-erton resided in Beresford, she did not own any real property in the City. Weath-erton argued, however, that since she paid sales tax she was a taxpayer. We previously rejected this argument in Stumes v. Bloomberg, where we stated, “[u]nder the South Dakota statutory scheme, the mere payment of a sales tax by a consumer does not fit within the definition of a taxpayer.” 1996 SD 93, ¶ 11, 551 N.W.2d 590, 593. While it was undisputed that Weatherton paid sales taxes that are imposed in Beres-ford, under Stumes, that was not enough to qualify as a “taxpayer.” Therefore, Weatherton had no standing to bring suit.

NO REMEDY

[¶ 33.] Even if Winter Brothers or Weatherton had standing, there was no remedy. Winter Brothers could not seek damages from Beresford for its rejection of Winter Brothers’ bid, nor could Winter Brothers seek damages for its bid preparation. H & W Contracting, 2001 SD 107 at ¶ 14, 633 N.W.2d at 172-73. Winter Brothers could only sue for declaratory or equitable relief to compel compliance with the competitive bidding laws. Id. The project was completed at the time of trial. There was no longer any dispute to settle.

[¶ 34.] The trial court is affirmed.

[¶ 35.] GILBERTSON, Chief Justice, and AMUNDSON and KONENKAMP, Justices, concur.

[¶ 36.] SABERS, Justice, concurs in result.

[¶ 37.] ZINTER, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

SABERS, Justice

(concurring in result).

[¶ 38.] I concur in result because no prejudice was shown even though the evidence shows that violations of the bidding laws occurred.

[¶ 39.] The contract specifications required all inquiries to be directed to Larson Engineering. Despite this, Ramstad Construction contacted the City Administrator who obtained for them the right to 1) leave excess dirt on the site and 2) dispose of the trees by burning them on the site. This was favoritism, and all other bidders should have been advised immediately by facsimile or phone.

[¶ 40.] In addition, for Beresford to provide Ramstad an opportunity to accept a bid of zero for item 3 on the bid schedule constitutes favoritism even though it did not result in any damage or prejudice in this situation. Better performance by the bid-letter and the successful bidder, resulting in equal treatment for all bidders, should be required in all future bid lettings.

      . The back of Ramstad’s bid stated the following:
      The bid is to be that we bum the trees on site a. All extra dirt will remain on city property on site. The manufacturing hold up of 48" diameter storm sewer manhole/drop inlet will not be built by completion date, therefore, seeding will not be completed after drop inlets are installed.

        . H & W Contracting also limited the types of suits that can be brought: "Because a disappointed bidder's standing is based on the protection of public interest, it extends only to suits for declaratory or equitable relief seeking to compel compliance with the competitive bid laws.... However, suits by disappointed bidders seeking damages perform no such legitimate public service.” 2001 SD 107 at ¶ 14, 633 N.W.2d at 172-73. A disappointed bidder, therefore, has no standing to sue for damages, which includes lost profits and bid preparation. Id.

      . "The bidding requirements, whether they be statutory or part of the invitation itself, do not act to bind the soliciting agency to any one bidder, regardless of that bidder's compliance with the specifications. Rather, public authorities are vested with wide latitude in determining which bids meet the qualification of lowest responsible bidder.” Spiniello Companies v. City of Cleveland, No. 76411, 2000 WL 1753386, at *6 (OhioApp8thDist Nov 30, 2000) (citations omitted). "Courts cannot interfere in the exercise of this discretion unless it clearly appears that the city authorities in whom such discretion has been vested are abusing the discretion so vested in them.” Id.


author: NEUMAN, Justice.

text:
    Daniel R. BURBACH, Appellant, v. RADON ANALYTICAL LABORATORIES, INC., d/b/a Ral Inspection Services, Appellee.
    No. 01-1566.
    Supreme Court of Iowa.
    Sept. 5, 2002.
    As Amended on Denial of Rehearing Oct. 25, 2002.
    Todd L. Stevenson of Kane, Norby & Reddick, P.C., Dubuque, for appellant.
    James M. Heckmann and Douglas Q. Davis II of James M. Heckmann Law Offices, P.C., Dubuque, for appellee.
   NEUMAN, Justice.

This appeal concerns the liability of a home relocation inspection company to the buyer of a home for an allegedly negligent inspection report relied upon by the home buyer in making the purchase. The district court determined, on summary judgment, that the home inspection company owes no duty to third persons who rely to their detriment on the company’s representations. We reverse and remand for further proceedings.

I.Background.

American Escrow and Closing Company (American Escrow), an employee relocation company, hired the defendant, Radon Analytical Laboratories (Radon), to perform a relocation inspection on a home in Dubuque, Iowa. The inspection was performed in February 1999 by Michael Davis, a Radon employee. The written inspection report was then submitted to American Escrow.

Subsequently, in June 1999, plaintiff Daniel Burbach executed a written purchase agreement with American Escrow to purchase the home. The agreement gave Burbach ten days to obtain a satisfactory inspection of the premises. Rather than hire an independent inspector, Burbach personally inspected the premises. In addition, Burbach received from his realtor, and relied upon, a copy of the final written inspection report prepared by Radon.

This dispute arose when Burbach discovered his home was covered with Louisiana-Pacific Innerseal Siding (L-P siding), a siding widely regarded throughout the home inspection industry as defective and known to be the object of a class action lawsuit. It is undisputed that Radon was aware of these problems and the pending lawsuit prior to 1999. However not all Radon employees were trained or familiar with the L-P siding defects. Davis, an untrained employee, failed to identify the siding as “L-P siding,” identifying it instead as “wood” siding.

Burbach filed this action against Radon seeking damages for its negligence in performing the inspection and its failure to disclose structural defects in the home. Radon subsequently moved for summary judgment, contending it owed no duty to warn Burbach of the defects. Over Bur-bach’s resistance the district court sustained Radon’s motion, concluding as a matter of law that Radon owed no duty to Burbach when it performed the home inspection. This appeal by Burbach followed.

II. Scope of Review.

Because this case reaches us on appeal from summary judgment, ■ we review for correction of errors at law. McComas-Lacina Constr. Co. v. Able Constructors, 641 N.W.2d 841, 843 (Iowa 2002). Summary judgment is appropriate only “when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. (citing Iowa R. Civ. P. 1.981(3) (2002)). In deciding whether summary judgment was appropriately granted, we are obliged to view the record in the light most favorable to the resisting party. Id. The burden of proof rests on the party seeking summary relief. Id. at 843-44.

III. Issue on Appeal.

Burbach argues on appeal that his reb-anee on Radon’s inspection report was foreseeable, thereby creating a duty of care owed to him by Radon under this court’s holding in Larsen v. United Federal Savings & Loan Ass’n, 300 N.W.2d 281 (Iowa 1981). Radon counters that the case is more akin to Teunissen v. Orkin Exterminating Co., 484 N.W.2d 589 (Iowa 1992), where we rejected a similar allegation of duty with respect to a termite inspector. Radon contends no privity existed between Radon and Burbaeh, and Radon had no actual knowledge Burbaeh would rely on the documents when purchasing the home. The district court sided with Radon, holding that Radon’s duty ran only to American Escrow, the entity for whom the document was prepared. The court further noted even if the duty of care were broadened to include persons not in privity with Radon, the record failed to support Bur-bach’s claim that he was a foreseeable user of the report.

IY. Analysis.

The parties’ controversy implicates section 552 of the Restatement (Second) of Torts. The section provides in part:

(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered
(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and
(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.

Restatement (Second) of Torts § 552 (1977) (emphasis added).

There is no dispute that Radon falls within subsection (1) of this Restatement section. Clearly Radon is “in the business” of providing relocation inspections “for the guidance of others.” The parties’ dispute is over the applicability of subsection (2). Pertinent to this determination is the commentary to section 552:

It is enough, likewise, that the maker of the representation knows that his recipient intends to transmit the information to a similar person, persons or group. It is sufficient, in other words, insofar as the plaintiffs identity is concerned, that the maker supplies the information for repetition to a certain group or class of persons and that the plaintiff proves to be one of them, even though the maker never had heard of Mm by name when the information was given.

Id. cmt. h, at 133.

In Larsen, this court relied on section 552 to find that a lender’s negligent appraisal report could furnish the basis for a negligence suit by home buyers who relied on the report to their detriment, even though the report was prepared for the lender, not the home buyers. Larsen, 300 N.W.2d at 287. Citing the language of the Restatement, we said liability “may extend to losses sustained by more than one person, as long as the supplier of the information (1) intended to supply the information to that person ... or (2) knew the recipient intended to supply it.” Id. The record revealed that the lender had “every reason to know its appraisal would influence this home purchase transaction.” Id. We therefore upheld the district court’s finding that a duty existed, as well as finding the record sufficient to submit the issue of negligent breach of duty to the jury. Id. at 288.

Teunissen, the case upon which Radon relies, involved an allegedly negligent termite inspection report given years in advance of the purchase of the bug-infected home by the plaintiff. Teunissen, 484 N.W.2d at 590. Applying the test set forth in Larsen, we held the relationship between the parties was too remote to sustain the duty asserted by the plaintiff. Id. at 591. We described the factual context for our decision as follows:

Teunissen was far removed from the picture when Orkin performed its treatment and inspection that Teunissen claims was negligently done. Teunissen was not even aware of the contract before she discovered the termites. So we can scarcely say she relied on Orkin to perform these services with care. Nor was Orkin aware that the property would be sold. So we can likewise scarcely say that Orkin actually foresaw that it was performing these services for the benefit of a prospective buyer.

Id.

Factually, the case before us falls somewhere between Larsen and Teunis-sen. Unlike Larsen, where the appraisal report was prepared with a known borrower in mind, the report prepared by Radon was issued to American Escrow without precise knowledge of whom the ultimate buyer of the property might be or when a purchase might occur. But the report itself contains language confirming Radon’s knowledge that an escrow company will likely share the report with prospective buyers. Under the heading “Objective of the Relocation Home Inspection Report,” the document states “the client may, at its discretion, disclose [the report] to other interested parties.”

In a nearly identical case, the Indiana Court of Appeals found the language quoted above sufficient to show that an escrow company was “likely and motivated to disclose the inspection report to prospective buyers, who would then rely upon it in the decision process.” Real Estate Support Servs., Inc. v. Nauman, 644 N.E.2d 907, 911 (Ind.Ct.App.1994). As noted by the Indiana court, a representative of the inspection company in that case testified that “an ultimate buyer of the inspected property is ‘certainly a very interested party.’ ” Id. at 911. So also here, Radon’s president acknowledged in his deposition that relocation companies often provide copies of the report to the potential buyers of the home.

Given this documentary evidence and testimony concerning Radon’s knowledge that its report would be reviewed and potentially relied upon by a limited but foreseeable class of persons, we think the district court erred when it refused to recognize the duty of care imposed thereby under Restatement section 552 and our Larsen case. The facts are plainly distinguishable from the ones that led us to reach an opposite conclusion in Teunis-sen. There the relationship between the parties was too remote to support the duty alleged.

We are further convinced the record made on summary judgment contains at least colorable evidence supporting Bur-bach’s claim of negligent breach of the duty owed. We therefore reverse the summary judgment granted in Radon’s favor and remand to the district court for the trial to which Burbach is entitled.

REVERSED AND REMANDED.

      . The record reveals that L-P siding is composite material made of wood chips and glue and can be easily detected by its "distinctive mark,” a knot, on the siding. When not properly maintained or installed, the siding "dela-minates,” causing expansion of the wood and absorption of moisture.

      . Burbach also sued the previous homeowners and the relocation company, American Escrow. Those parties settled with Bur-bach prior to the entry of summary judgment.


author: LARSON, Justice.

text:
    William O. OPPERMAN and Debra J. Opperman, Appellees, v. ALLIED MUTUAL INSURANCE COMPANY, Appellant.
    No. 01-0887.
    Supreme Court of Iowa.
    Oct. 9, 2002.
    John B. Grier and Merrill C. Swartz of Cartwright, Druker & Ryden, Marshall-town, for appellant.
    Jay A. Nardini of Nardini Law Office, Cedar Falls, for appellees.
   LARSON, Justice.

William and Debra Opperman sued their insurance carrier, Allied Mutual Insurance Company, under the underinsured-motorist coverage of their policy. The district court entered judgment for the plaintiffs, and Allied appealed, claiming error in the court’s computation of interest. We modify and affirm.

I. Facts and Prior Proceedings.

William Opperman was injured in an automobile accident on December 18, 1995. On December 9,1997, he and his wife sued Sara Pruisner and Cynthia Gitch, drivers of separate automobiles, claiming the negligence of each was a proximate cause of the accident. On October 5, 1998, the plaintiffs amended their petition to add Allied as a party. The claim against Allied was severed from the claims against Pruis-ner and Gitch. The Oppermans settled with Sara Pruisner for the full amount of her insurance limits, $25,000, and released her. Meanwhile, Allied paid approximately $5000 in medical benefits. The Opper-mans’ suit against Gitch proceeded to trial in March of 1999. The jury returned a verdict of no fault in favor of Gitch.

Trial of the Oppermans’ suit against Allied followed. The suit was a hybrid one: the plaintiffs sued their insurer, Allied, under the underinsured-motorist provision of their policy — a contract action. See Vasquez v. LeMars Mut Ins. Co., 477 N.W.2d 404, 410 (Iowa 1991). However, the measure of damages would be determined under tort principles: what would have been the plaintiffs’ recovery against Pruisner if Pruisner were liable for plaintiffs’ damages. See Houselog v. Milwaukee Guardian Ins., 473 N.W.2d 52, 55 (Iowa 1991).

The jury returned a verdict for the Op-permans for $41,763.61 in past damages and $3000 in future damages. The judgment was reduced by $25,000 for the amount the Oppermans had received from Pruisner’s carrier, for a net judgment of $19,763.61, including both past and future damages. The court added interest on the past damages of $16,763.61 from the date of the filing of the petition against Pruis-ner and Gitch and interest on the future damages of $3000 from March 9, 2001, the date of the jury verdict against Allied. On March 23, 2001, Allied paid the Oppermans $14,763.61, after taking credit for approximately $5000 it had already paid in medical benefits.

On April 23, 2001, the Oppermans asked the court to clarify its ruling with regard to interest. Allied responded with its calculation of interest. At the hearing, the court ruled in favor of the plaintiffs and entered judgment against Allied for past damages in the amount of $17,243.55 with per diem interest to accumulate from March 16, 2001. Judgment was also entered against Allied for future damages of $3000 with per diem interest from the date of judgment.

Allied’s underinsured-motorist provision stated:

We will pay all sums which an “insured” is legally entitled to recover as compensatory damages from the owner or operator of an “underinsured motor vehicle” resulting from “bodily injury” to any person caused by an accident.

The amount the plaintiffs were “legally entitled to recover” was set by the jury in the Oppermans’ suit against Allied. The jury’s verdict assessed damages to which the Oppermans’ were entitled, as follows:

Past medical expenses $16,763.61
Future medical expenses 0.00
Past loss of full mind and body 5,000.00
Future loss of full mind and body 0.00
Past physical and mental pain and suffering of William Opperman 10,000.00
Loss of consortium for Debra Opperman 10,000.00
Total past damages 41,763.61
Future damages 3,000.00

Under Iowa Code section 668.13(1) and (4), the plaintiffs would have been entitled, in a tort suit against Pruisner, to interest from the date of the filing of then-petition for past damages and from the date of the judgment as to future damages. It is true the jury did not add interest to the past damages, but interest may be properly computed and ordered by the court as additional damages to be included in the judgment. See Indep. Sch. Dist. No. 65 v. Stafford, 208 Okla. 542, 257 P.2d 1092 (1953). In Stafford,

[t]he [trial] court ... found plaintiff had asked interest upon her claim but the jury had failed to allow this item, although plaintiff was entitled thereto, and accordingly entered judgment for interest....

Id. at 1094. The court’s addition of interest was assigned as error on appeal by the defendant. The court concluded “we are of the opinion that the trial court properly added the interest to the jury verdict [based on statute providing for interest on damages certain].” Id. at 1095; see also 47 C.J.S. Interest & Usury § 22, at 65 (1982):

Where the trial court has instructed the jury that any recovery should have interest thereon but the jury fails to include such interest, the trial court may add interest to the jury’s verdict. Also, where the amount of damages assessed in a verdict is reduced, interest may be added to that part of the verdict for which judgment is entered, unless the order granting the option clearly excludes the right to interest.

The interest that plaintiffs were entitled to recover on their tort claim was governed by Iowa Code section 668.18. As provided in that statute, that interest should date ■ from the filing of their petition in the tort action. Under Iowa Code section 668.13(3), interest is to be computed daily

at a rate equal to the coupon issue yield equivalent, as determined by the United States secretary of the treasury, of the average accepted auction price for the last auction of fifty-two week United States treasury bills settled immediately prior to the date of the judgment plus two percent. The state court administrator shall distribute notice monthly of that rate and any changes to that rate to all district courts.

The complexity of this interest calculation, which ordinarily would ■ be made after the verdict and prior to the judgment, makes it obvious that the court, not the jury, must determine and add the amount of interest. The jury sets the damages, the Code- dictates interest to be added to it, and the court does it. We believe it makes no difference whether the damages have been set by a jury in a direct tort action or in a hybrid action, such as this, in which the suit against the insurer measures the amount of recovery the plaintiffs would have realized in an underlying tort action.

In the plaintiffs’ petition, they requested interest on the damage awards “as provided by law.”

II. Prejudgment Interest on the Tort Judgment.

Iowa Code section 668.13 provides the commencement date and the rules for the determination of interest:

Interest shall be allowed on all money due on judgments and decrees on actions brought pursuant to this chapter, subject to the following:
1. Interest, except interest awarded for future damages, shall accrue from the date of the commencement of the action.
3. Interest shall be calculated as of the date of judgment at a rate equal to the coupon issue yield equivalent, as determined by the United States secretary of the treasury, of the average accepted auction price for the last auction of fifty-two week United States treasury bills settled immediately prior to the date of the judgment plus two percent. The state court administrator shall distribute notice monthly of that rate and any changes to that rate to all district courts.
4. Interest awarded for future damages shall not begin to accrue until the date of the entry of the judgment.
5. Interest shall be computed daily to the date of the payment, except as may otherwise be ordered by the court pursuant to a structured judgment under section 668.3, subsection 7.

Our review of the interest issues is for error at law. Wilson v. IBP, Inc., 589 N.W.2d 729, 730 (Iowa 1999). Allied argues the prejudgment interest awarded against it should not be computed from the date the original petition was filed against the tortfeasors but only from the date Allied was brought into the case approximately ten months later. Allied relies on Mossman v. Amana Society, 494 N.W.2d 676 (Iowa 1993). That case is inapposite. Mossman involved a defendant who was brought in by impleader after the original suit was commenced. We held prejudgment interest would not commence until that party was brought into the case. Id. at 678. Mossman was not an underinsured-motorist case in which the added party stepped into the shoes of the underinsured motorist as we have in this case. Here, the insurance company is liable for all interest the tortfeasor would owe and, under Iowa Code section 668.13, that would begin to accrue when the action was filed against the original tortfeasor. The commencement of interest does not turn on when Allied was brought into the litigation.

It is true, as Allied claims, that a claim against an insurance company for underin-sured-motorist insurance benefits is a claim under a contract. See Vasquez, 477 N.W.2d at 410. Allied argues that the initial suit by the Oppermans was a tort suit, and when the amended petition was filed adding Allied to the case, this for the first time inserted a contract action in what had been a purely tort action. It cites Baumler v. Hemesath, 534 N.W.2d 650, 656 (Iowa 1995), in which we said: “When monetary damages arise from distinct new claims made in an amended petition, we allow interest on the judgment only from the date plaintiff filed its amended petition.” Baumler is distinguishable because that case involved damages for two distinct accidents — not, as in this case, a suit under a contract to ascertain the insurance benefits, as established under tort principles.

We reject Allied’s argument on this point. Allied bound itself under its insurance policy to pay its insured what the insured would have recovered against a third party if that party had been adequately insured. By statute that includes interest on past damages from the date the tort suit was filed. Houselog, 473 N.W.2d at 55. Allied distinguishes Houselog on the basis there was a judgment in that case against the tortfeasor, while in the present case there was no judgment against the tortfeasor; rather the amount of damages sustained by the plaintiffs was established in a suit against the insurance company. This is a distinction without a substantive difference, however, because the issue in both cases is what it would take to fully compensate the plaintiffs for the damages they suffered. In both cases, the amount of prejudgment interest would be determined by the court in accordance with Iowa Code section 668.13.

III. Computation of Interest.

Iowa Code section 535.3(1) provides for interest on all judgments and decrees at a rate to be calculated according to Iowa Code section 668.13(1). As already noted, that section provides that interest shall accrue from the date of the commencement of the original action. The concept of prejudgment interest is based on the realization that the loss caused by tortious conduct results in the loss of use of compensatory damages, and to make the plaintiff whole, prejudgment interest should be allowed. See Wilson, 589 N.W.2d at 732. Iowa Code section 668.13(4) provides that interest on future damages shall not begin to accrue until the date of the judgment.

Several payments were received by the plaintiffs before they obtained a judgment against Allied. These payments included payments by Allied for medical expenses and one payment by Pruisner’s liability insurance company in settlement of the claim against Pruisner. The amounts and dates of payment are as follows:

February 23, 1999 $25,000.00 in settlement from Pruisner’s insurer
April 9,1996 $ 28.00 in medical payment
July 24,1996 $ 168.07 in medical payment
October 7,1996 $ 264.12 in medical payment
June 29, 1998 $ 1238.31 in medical payment
July 20,1999 $ 3000.00 in medical payment

In computing the interest to be paid by Allied, the plaintiffs should receive interest on all of the past damages from December 9, 1997, the date the original petition was filed against the tortfeasors, to March 16, 2000, when judgment was entered against Allied. As each payment set out above was received by the plaintiffs, the amount of principal on which interest was computed should be reduced by those amounts as of the time the payments were received. All payments credited to Allied shall first be credited to the interest then due and the balance, if any, to principal. See 47 C.J.S. Interest & Usury § 74, at 164 (discussing the general rule, which is known as the “United States rule,” to apply payments first to interest, and the balance, if any, to principal); see also Christensen v. Snap-On Tools Corp., 554 N.W.2d 254, 262 (Iowa 1996).

The plaintiffs argue that these credits should be made at the time judgment was entered, not as of the time the payments were actually made, and the district court agreed. That is so even though the plaintiffs had received those payments at earlier times. On the other hand, Allied argues that credits should be figured as of the time interest began to accrue, ie., the date of filing the original suit, even though the plaintiffs did not receive the payments until later. Thus, Allied would get credit for payments before they made them. We disagree with both parties and the district court and conclude that interest should be computed only on the remaining unpaid balance of the past-due damages after each payment was received. The amount of prejudgment interest thus computed is part of plaintiffs’ damages in the contract action. This amount should be added to the other damages found by the jury and made a part of the total damages awarded in the judgment. This aggregate award shall, in turn, draw interest from the date of judgment at the rate specified in Iowa Code section 535.3CL).

As modified, we affirm the judgment of the district court.

AFFIRMED AS MODIFIED.

      . We recognized in Schimmelpfennig v. Eagle National Assurance Corp., 641 N.W.2d 814, 815 (Iowa 2002), that section 535.3 incorporates by reference the rate of interest provided in section 668.13, but does not incorporate the provision of section 668.13, which provides that interest shall accrue from the date of the commencement of the action. Consequently, the aggregate judgment, which includes interest on the past tort damages, computed pursuant to section 668.13, only draws interest from the date that the judgment is entered.


author: STREIT, Justice.

text:
    In the Interest of C.H., Minor Child, D.H., Father, Appellant.
    No. 01-0953.
    Supreme Court of Iowa.
    Oct. 9, 2002.
    David M. Pillers of Pillers Law Offices, P.C., Clinton, for appellant.
    Thomas J. Miller, Attorney General, and Gordon E. Allen, Deputy Attorney General, for appellee State.
    Bert Watson, Clinton, guardian ad litem for minor child.
   STREIT, Justice.

The father of a fourteen-year-old girl appeals from a juvenile court decree terminating his parental rights. We transferred the case to the Iowa Court of Appeals, which reversed the juvenile court’s decree as to the father’s termination, but affirmed the mother’s termination of parental rights. On further review, we now vacate in part and affirm in part the court of appeals’ decision and affirm the decree of the juvenile court.

I. Background and Facts

This case comes to us as an appeal of a juvenile court order terminating the parental rights to three children. Douglas is married to Sandra. Sandra has two daughters from a previous marriage, Diana and Ashley. Douglas has one daughter, Cecilia, from a previous relationship. All three children lived with Douglas and Sandra.

This family first had contact with governmental services in October 1994. When Douglas and Sandra left to work in a carnival, they left the children in the care of a babysitter. Approximately ten days after Douglas and Sandra left, the caregiver turned the children over to police and charges of abandonment were filed with Social Rehabilitation Services in Topeka, Kansas. Diana and Ashley were placed in foster care in Kansas. The children were returned to the custody of Sandra and Douglas in 1996. In May 1997, DHS investigated a complaint of physical abuse against Douglas. Douglas had split Cecelia’s lip open during a disagreement. After temporary foster placement, the children were returned to the care of Douglas and Sandra.

In 1999, the children again were removed from Douglas’ and Sandra’s care after Diana made allegations of sexual abuse against Douglas. The juvenile court adjudicated all three children in need of assistance in accordance with Iowa Code sections 232.2(6)(b) and (d) (1999). The children were placed in foster care.

In adjudicating the children in need of assistance, the court made extensive and detailed findings of fact. The court found Douglas sexually abused Diana when she was eleven years old. Douglas touched her genitals, anus, and breasts. On one occasion, Diana reported Douglas touched her chest “and where she goes pee and poop.” On another occasion, Douglas took Diana out of the shower and touched her genitals with his penis. Diana’s sisters knocked on the door, but Douglas told them to go away. Douglas only stopped his conduct with Diana when he heard Sandra return home. Diana told her mother about this particular incident, but Sandra denies that it happened.

The court further found while in foster care, Diana behaved sexually toward her foster father and a twelve-year-old friend. Diana and Cecilia initially were placed in the same foster home, but they were later separated because Diana became physically aggressive toward Cecilia. Cecilia, too, exhibited signs consistent with sexual abuse occurring in the home. She would inappropriately touch, kiss, and rub strangers. Cecilia also played with the family dog’s penis.

On one occasion, Cecilia became excessively agitated and began screaming. She was afraid to go to sleep. Cecilia told her foster mother she was afraid her dad would come and get her. Cecilia also said her father would kill her and anyone she told. Cecilia at times refused to take a bath and she would eat until she vomited. The court found Cecilia had delayed social and living skills based upon findings made by a therapist with Families of Northeast Iowa. The court stated Cecilia is self-injurious; she hits herself and pulls her hair out. She does not understand sexual boundaries. When she first met her therapist, Cecilia stated her name and immediately volunteered that her dog licks her private parts when she is naked. Cecilia also reported Diana touched her private parts.

On February 8, 2000, the court adopted the case permanency plan and ordered it implemented by DHS. Both Douglas and Sandra stipulated to the permanency plan. Douglas and Sandra were required to participate in services designed to facilitate reunification of the family.

During the two years the children remained in foster care, Douglas continued to deny sexually abusing his stepdaughter. He began therapy but quickly discontinued services because he refused to admit he sexually abused his stepdaughter. Douglas failed to attend substance abuse treatment even though it was recommended by New Directions’ substance abuse evaluation. Though Douglas said he was sober, he was convicted of his third offense for operating while intoxicated shortly before the trial on the State’s petition to terminate parental rights. Douglas has failed to maintain contact with his daughter

Nine months after the court adopted the case permanency plan, the juvenile court terminated Douglas’ parental rights as to Cecilia. See Iowa Code §§ 232.116(l)(c), (e) (1999). The juvenile court found clear and convincing evidence the incidents of sexual abuse reported by Diana occurred. The court also made findings similar to those cited in the order adjudicating the children in need of assistance. Specifically, the court found Cecilia had poor social and hygiene skills. She acted sexually toward others and invades others’ space. Cecilia’s “poor social, daily living skills, and significant developmental gaps appear to have been the result of little interaction, lack of stimulation, teaching, and exposure by her biological family.” The court stated termination was not a sanction for Douglas’ exercise of his constitutional right against self-incrimination but was a result of his “failure to recognize and rectify parental deficiencies.”

Douglas appealed the termination of his parental rights to Cecilia and the Iowa Court of Appeals reversed the juvenile court. The court of appeals found the State did not satisfy its burden to make reasonable efforts toward reunification because it did not afford Douglas “the option of continuing individual therapy without acknowledging his guilt.” The court concluded Douglas’ “parental rights were terminated solely because he refused to admit to sexually abusing Diana,” and it held “[t]his ground for termination violated Douglas’ Fifth Amendment privilege against self-incrimination.” The court remanded the case for further proceedings.

The guardian ad litem and the State now seek further review. They contend the court of appeals erred in: (1) allowing the father to wait until the termination hearing to raise a Fifth Amendment challenge to the adequacy of the services provided to him, and (2) finding the father’s parental rights were terminated solely on the basis of his failure to acknowledge that he sexually abused his stepdaughter.

The father resists claiming he did not wait until the termination hearing to challenge the adequacy of services. Douglas asserts he repeatedly expressed his dissatisfaction with the services to his social worker. He also contends the court of appeals was correct in finding his parental rights were terminated solely on the basis of his refusal to acknowledge the sexual abuse.

II. Scope of Review

We review termination of parental rights de novo. In re S.N., 500 N.W.2d 32, 34 (Iowa 1993) (citation omitted).

III. The Merits

On appeal we consider two issues. First, we must determine whether the father could wait until the termination hearing to raise a Fifth Amendment challenge to the adequacy of the services provided to him. We also consider whether the juvenile court erred in terminating the father’s parental rights.

A. Challenge to the Adequacy of Services

Douglas has not completed sex offender treatment or substance abuse treatment as recommended. He claims the State did not offer him adequate services to allow him to comply with the case permanency plan and ultimately reunify his family. Specifically, Douglas argues he complained several times to his social worker regarding the adequacy of services provided to him. He, however, made no effort to inform the juvenile court of his complaints.

The State must make reasonable efforts to provide services to a parent before termination proceedings may be instituted. Iowa Code § 232.102(7), (10)(a); In re C.B., 611 N.W.2d 489, 492-93 (Iowa 2000). Reasonable efforts are aimed at both preventing and eliminating the need for removal. Iowa Code § 232.102(10)(a); In re C.B., 611 N.W.2d at 493. “This is both a required element of each state’s Title IV-E state plan and a condition of federal funding for individual foster care placements.” In re H.L.B.R., 567 N.W.2d 675, 679 (Iowa Ct.App.1997). However, what constitutes reasonable services varies based upon the requirements of each individual case. Id. Generally, in making reasonable efforts to provide services, the State’s focus is on services to improve parenting. In re C.B., 611 N.W.2d at 493 (citing In re T.A.L., 505 N.W.2d 480, 485 (Iowa 1993)). The concept of reasonable efforts broadly includes “a visitation agreement designed to facilitate reunification while protecting the child from the harm responsible for the removal.” In re M.B., 553 N.W.2d 343, 345 (Iowa Ct.App.1996).

It is appropriate in some cases for the parent to request additional services from DHS. It is also appropriate for DHS to respond to such requests if they are within its duty to use reasonable efforts to satisfy the case permanency plan and the goal of reunification. However, in making reasonable efforts to provide services, the State need not search for unavailable services. This is especially so when a parent, as in the present case, presents the awesome challenge of getting treatment for a deficit the parent claims he does not have. A dialogue between the parent and DHS may help the parties comply with the case permanency plan. If, however, a parent is not satisfied with DHS’ response to a request for other services, the parent must come to the court and present this challenge. See Iowa Code § 232.99(3)

Douglas asserts he told his social worker, Karen Claussen, he wanted other treatment that would not force him to admit to the sexual abuse. Karen Claussen’s reports do not reveal such a request. The court approved a case permanency plan for Cecilia and her family, which identified the problems within the family unit and provided a variety of services to Douglas. Douglas failed to comply with the case permanency plan. DHS offered him classes to facilitate parent skills development and treatment for substance abuse issues. Since 1999 when Cecilia went into foster care, DHS has offered Douglas treatment on at least two occasions. Douglas refused to accept such treatment. Instead, he requested alternate services when there was no evidence to suggest the services were available. After two failed attempts at treatment and requests for nonexistent services, it is clear the State made reasonable efforts to provide services to Douglas before the court terminated his parental rights.

Even if Douglas asked for alternative treatment, he did not make his request in an appropriate proceeding or at the appropriate time. In general, if a parent fails to request other services at the proper time, the parent waives the issue and may not later challenge it at the termination proceeding. See In re S.R., 600 N.W.2d 63, 65 (Iowa Ct.App.1999); In re L.M.W., 518 N.W.2d 804, 807 (Iowa Ct.App.1994) (parent must demand services if he or she feels they are inadequate prior to termination); Iowa Code § 232.99(3). If a parent has a complaint regarding services, the parent must make such challenge at the removal, when the case permanency plan is entered, or at later review hearings. Id. Moreover, voicing complaints regarding the adequacy of services to a social worker is not sufficient. A parent must inform the juvenile court of such challenge.

Douglas did not inform the court at the time the children were removed from the home that he disliked the services available to him. He did not notify the court of his complaint later when the court adopted the case permanency plan. He also failed to notify the court at a later review hearing. Rather, Douglas waited until the termination hearing to make this challenge before the court. We conclude Douglas may not now challenge the sufficiency of services provided to him. Even if Douglas’ attorney had filed a motion with the juvenile court requesting alternative services in a timely manner, Douglas’ argument would still fail as there was ample evidence to support the termination apart from his failure to get treatment for his problem.

B. Basis For Termination of Parental Rights

The court of appeals found the only ground upon which the juvenile court based its decision to terminate parental rights was the father’s refusal to admit he sexually abused his stepdaughter. The court found this was impermissible as the father has a constitutional right against self-incrimination. We disagree with the court of appeals’ conclusion that the juvenile court terminated Douglas’ parental rights solely because of his failure to admit guilt.

The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const, amend. V. The privilege applies equally to allow a person “ ‘not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.’ ” Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 1141, 79 L.Ed.2d 409, 418 (1984) (quoting Lefkowitz v. Tur-ley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274, 281 (1973)). “When the State ‘compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered, that testimony is obtained in violation of the Fifth Amendment.’ ” In re E.H. III, 578 N.W.2d 243, 249 (Iowa 1998) (quoting Lefkowitz v. Cunningham, 431 U.S. 801, 805, 97 S.Ct. 2132, 2135, 53 L.Ed.2d 1, 7 (1977)). The privilege against self-incrimination applies also within the context of court-ordered therapy requiring an admission of criminal conduct. In re E.H. III, 578 N.W.2d at 249 (citations omitted).

In this case, Douglas’ would-be statements that he abused his stepdaughter were not compelled by the State to prevent the potential sanction of losing his daughter. The court may not compel Douglas to admit his guilt in order to be eligible to regain custody of his daughter. The court may, however, require Douglas to comply with the case permanency plan which includes treatment. Failure to do so may result in termination of his parental rights.

The case permanency plan required Douglas to accomplish several things. Douglas had to undergo a substance abuse evaluation and follow the recommendations of the evaluation. In connection with this, Douglas was specifically ordered not to use alcohol. The plan required Douglas to complete sexual offender treatment and learn to control inappropriate sexual behavior. Finally, because the parents have difficulty setting rules, controlling Cecilia’s behavior, and appropriately disciplining and maintaining reasonable boundaries, Douglas had to participate in family-centered services and attend all sessions. The case permanency plan also required Douglas to maintain both a stable residence and employment. Overall, Douglas was required to provide for Cecilia’s emotional, physical, and educational needs. Douglas failed every requirement of the case permanency plan.

In order for Douglas to work toward family reunification it was crucial that he undergo substance abuse treatment. All three girls stated Douglas drinks heavily. Both Cecilia and Diana stated that when the abuse occurred in the house, Douglas had frequently been drinking. Douglas underwent a substance abuse evaluation that ultimately recommended he participate in the extended outpatient treatment program. Despite the recommendation, Douglas did not comply because he said he was no longer drinking and did not need the treatment. Douglas’ protestations of sobriety were unfounded as proven by his third conviction for operating while intoxicated. Douglas’ social worker also received periodic reports that Douglas was still drinking, in addition to his conviction.

The case permanency plan also provided Douglas had to participate in parenting skills services. As to rectifying parental deficiencies, Douglas attended a few sessions designed to improve his parenting skills but was uncooperative and did not complete assignments. In January 2001, one month prior to the termination, he completely stopped attending these services. It cannot be said Douglas participated in any meaningful way in learning better parenting skills.

Douglas was required to maintain a stable residence and employment. During the two years the girls were in foster care, Douglas did not comply with these requirements. Douglas and Sandra sold their home and purchased a mobile home in which they moved around from one camping sight to the next for approximately one year. During the same time, Douglas did not maintain a stable job. In general, Douglas’ social worker stated Douglas has shown little interest in visitation or reunification with Cecilia.

Douglas was unsuccessful in sexual offender treatment. The case permanency plan only required Douglas to complete treatment. Under the case plan, successful completion of treatment did not include a requirement of admission of guilt. Douglas first sought treatment with Dan Fullerton, but quickly ceased his visits because he was unwilling to admit he abused Diana. Dr. David McEchron, a clinical psychologist, also attempted to treat Douglas. The fact Douglas failed to address the sexual abuse issues was not the only reason he failed his second attempt at treatment. Dr. McEchron was concerned with his findings of Douglas’ depression and lack of self-esteem. Douglas denied any need for psychological treatment whether it would be for depression, self-esteem issues, or sexual abuse problems. Dr. McE-chron did not terminate treatment solely because of Douglas’ unwillingness to admit responsibility for the abuse. Though Douglas stated he is depressed, psychological tests revealed the extent of Douglas’ depression to be much worse than he admitted. Dr. McEchron believed Douglas needed treatment for more than just the sexual abuse issues. Because of Douglas’ unwillingness to participate in any meaningful form of treatment, Dr. McEchron terminated treatment.

The State may not penalize Douglas for noncompliance with a court order impinging on his right against self-incrimination. See In re J.W., 415 N.W.2d 879, 888 (Minn.1987) (citing Turley, 414 U.S. at 77, 94 S.Ct. at 322, 38 L.Ed.2d at 281 and Cunningham, 431 U.S. at 804-05, 97 S.Ct. at 2135, 53 L.Ed.2d at 6). But this is as far as the Fifth Amendment privilege extends. The State may require parents to otherwise undergo treatment, but it may not specifically require an admission of guilt as part of the treatment. Contrary to Douglas’ assertions, a person’s exercise of a constitutional right may indeed have consequences. One such consequence may be a person’s failure to obtain treatment for his or her problems.

Here, there is no evidence the State required Douglas to complete any particular sexual offender treatment program. There is also no evidence that the State disapproved of Douglas’ participation in a treatment program that would not require an admission of guilt. In fact, there was no evidence showing there was alternative treatment available to him that would satisfy his concerns. The permanency plan merely required treatment. Douglas’ failure to complete treatment because of one reason — his exercising his Fifth Amendment rights — does not lessen his failure. Under such facts, we find Douglas failed to prove the State’s case permanency plan effectively constituted a requirement that Douglas must incriminate himself. See, e.g., In re E.H. III, 578 N.W.2d at 250; State ex rel. Juvenile Dep’t v. Black, 101 Or.App. 626, 792 P.2d 1225, 1228 (1990).

We note that sexual offender treatment where the offender refuses to take responsibility for the abuse may constitute ineffective therapy. In re H.R.K., 433 N.W.2d 46, 50 (Iowa Ct.App.1988) (“requirement that the parents acknowledge and recognize the abuse before any meaningful change can occur is essential in meeting the child’s needs”). A parent’s failure to address his or her role in the abuse may hurt the parents’ chances of regaining custody and care of their children. However, “these consequences lie outside the protective ambit of the Fifth Amendment.” In re J.W., 415 N.W.2d at 883. We acknowledge the fact that Douglas is faced with a dilemma, but we find it is not a dilemma that triggers constitutional protection. Id. at 884.

Douglas was well aware of what was required of him under the case permanency plan. The State made continuous attempts to see that Douglas was able to satisfy the plan’s requirements. DHS provided Douglas with treatment and other services to overcome his problems. The department gave him generous time to develop needed parenting skills and comply with all of the requirements of the case permanency plan. Yet he has failed to show little, if any, improvement. Given Douglas’ past performance, we are not convinced additional time or alternative services will change his conduct. Douglas’ resolute denial of these allegations neither lessens the juvenile court’s finding nor shakes the court’s goal to do what is best for the child.

The best interests of Cecilia are our paramount concern. In re L.L., 459 N.W.2d 489, 493 (Iowa 1990). Douglas’ failure to comply with the requirements of the case permanency plan shows his “lack of commitment to [Cecilia], and [his] persistence in putting [his] own needs before those of [his] child.” In re J.L.W., 570 N.W.2d 778, 780 (Iowa Ct.App.1997). As a result of Douglas’ failure to complete any form of treatment, we cannot conclude Douglas has fixed his problems and is now fit as a parent. See In re Guardianship of D.J.M., 325 N.J.Super. 150, 737 A.2d 1179, 1184 (1999). Douglas has given us no reason to believe that he is now able to be a parent to Cecilia or that he will not continue his abusive patterns. “The crucial days of childhood cannot be suspended while parents experiment with ways to face up to their own problems.” In re J.L.W., 570 N.W.2d at 781 (quoting In re D.A., 506 N.W.2d 478, 479 (Iowa Ct.App.1993)); In re L.L., 459 N.W.2d at 495. “Children simply cannot wait for responsible parenting.” Id. (quoting In re L.L., 459 N.W.2d at 495). In looking to her long-range as well as immediate interests, we conclude termination of Douglas’ parental rights is in Cecilia’s best interests. See In re J.L.W., 570 N.W.2d at 781; In re L.L., 459 N.W.2d at 493.

All of these factors were within the juvenile court’s consideration when it determined whether Douglas’ parental rights should be terminated. Foremost in the court’s deliberations was the fact that the juvenile court found Douglas did sexually abuse his stepdaughter and the abuse was ongoing. Douglas never appealed this finding by the juvenile court. Based on the facts in the record, we conclude Douglas’ failure to admit guilt was not the reason Cecilia could not or should not be returned to her father. There is substantial competent and credible evidence to support the juvenile court’s termination decree.

DECISION OF COURT OF APPEALS VACATED IN PART AND AFFIRMED IN PART; DECREE OF JUVENILE COURT AFFIRMED.

      . The case permanency plan provided Douglas with visitation rights. Visitation was to occur according to the visit plan indicated in each case permanency plan.

      . Iowa Code section 232.116(l)(c) provides, in part: (1) the court previously adjudicated the child to be a child in need of assistance after finding another child who is a member of the family was sexually abused and (2) after the child in need of assistance adjudication, the parents were offered services to correct the problems leading up to the adjudication.
      Iowa Code section 232.116(l)(e) provides, in part: (1) the child is four years of age or older; (2) the child has been adjudicated a child in need of assistance; (3) the child has been removed from the physical custody of the child's parents for at least twelve of the last eighteen months; and (4) there is clear and convincing evidence the child cannot be returned to the custody of the child's parents.

      .Sandra did not seek further review of the court of appeals decision affirming the juvenile court's termination of her parental rights. We conclude the court of appeals adequately addressed and correctly decided the issues regarding Sandra's termination Accordingly, we do not address this issue.

      . Where a parent fails to identify a deficiency in services or to request additional services, he or she may be precluded from later challenging the sufficiency of the services. Iowa Code § 232.99(3).