MEMORANDUM OPINION AND ORDER REGARDING AUSTINVILLE ELEVATOR’S REASSERTED MOTION FOR SUMMARY JUDGMENT ON COUNT VII
This matter comes before the court pursuant to defendant Elevator’s November 24, 1998, reasserted motion for summary judgment on Count VII of the Producers’ claims, the count asserting breach of contract by the Elevator. On April 15, 1998, the court dismissed Counts II through V of the Producers’ claims for failure to plead fraud with particularity. By order dated September 14, 1998, which was the ruling on the defendants’ original summary judgment motion, the court granted summary judgment in favor of the defendants on Count I of the Producers’ complaint, the declaratory judgment claim, declaring the HTA contracts at issue herein to be valid cash forward contracts as a matter of law; granted summary judgment in favor of the defеndants as to Count VI of the Producers’ complaint, the state-law claim of negligent misrepresentation, dismissing that claim; and granted summary judgment in favor of United Suppliers on the Producers’ breach-of-contract claims in Count VII of their complaint, dismissing United Suppliers from the ease.
However, in the ruling on September 14, 1998, the court denied Austinville Elevator’s motion for summary judgment as to Count VII of the Producers’ complaint, specifically stating that the denial was without prejudice to reassertion of the motion as to that count after the Producers produced their expert’s report on damages and made their expert available to the Elevator for а deposition on the question of damages on the breach-of-contract claim. Now that the Producers’ expert has provided his report and been deposed, the Elevator asserts that it is time to conclude that “the Emperor has no clothes” and grant summary judgment on the breach-of-contract claim on the ground that there is no competent evidence of damages.
Also pending before the court at this time are Austinville Elevator’s December 15, 1998, objections to the affidavit of the Producers’ counsel in support of the Producers’ resistance to summary judgment, which the Elevator asserts is inadmissible on summary judgment on several grounds, and the Elevator’s motion in limine, which in part seeks to preclude expert testimony concerning the Producers’ damages for breach of contract, the matter at issue here. The Producers have not resisted either the objections or the motion in li-mine. The court concludes that it is both improper to consider the challenged affidavit to resolve the motion for summary judgment, essentially for the reasons asserted by the Elevator, and indeed unnecessary to do so; therefore, the Elevator’s objections to the affidavit will be sustained. *869 The extent to which the motion in limine should be granted on damages evidence will likely be resolved by disposition of the present motion for summary judgment, but the court will defer until a separate order disposition of the Elevator’s motion in limine.
In essence, the Elevator’s argument for summary judgment on the Producers’ breach-of-contract claims is that the Producers’ expert, Dr. Anthony, has presented four damages “scenarios,” only one of which shows any loss at all, and then to only one of the Producers, Mr. Deters, and that Dr. Anthony himself described this “scenario” as “unrealistic,” requiring “perfect clairvoyance” on the part of the Producer as to the course of the grain markets. Thus, the Elevator asserts that this sole scenario supporting any damages on the part of any Produсer on the breach-of-contract claim is “for a guru or a swami, not for an Iowa jury.”
The Producers counter that Dr. Anthony’s affidavit and deposition establish that the HTAs had value to the Producers, if they had not been breached by the Elevator. Specifically, they contend. that Dr. Anthony will opine that there is a “range” of outcomеs had the HTAs continued in effect, with the four “scenarios” indicating only particular points on the continuum. Thus, they argue that they may be able to prove that the Producers here could indeed exceed the “average” performance, coming out toward the positive rather than the negative end of the range. The Prоducers also argue that the court has previously denied summary judgment on the basis of a possibility of similar damages even in the absence of expert testimony, citing
Barz v. Geneva Elevator,
In reply, the Elevator counters that Dr. Anthony’s affidavit is inconsistent with and cannot overcome his deposition testimony, which they contend recognized that the Producers have no realistic basis for showing actual damages. Where damages are so unrealistic, the Elevator reasserts, they should not be presented to thе jury. The Elevator argues further that Barz is not controlling, because in this case, the court specifically authorized a renewed motion for summary judgment on the breach-of-contract claim. The Elevator argues that neither the “chance to win” nor the “nominal” damages theory is authorized under Iowa Code § 554.2708, which controls the Prоducers’ breach-of-contract claim, and that in any event, the “chance to win” theory is contrary to the Producers’ expert’s testimony. 1
The court heard oral arguments on the Elevator’s reasserted motion for summary judgment on March 12, 1999. For the convenience of counsel and the court, the oral arguments were cоnsolidated with those in another HTA case, CeBar Farms, Inc. v. North Central F.S., No. 96-3080-MWB (N.D.Iowa), but the eases were not formally consolidated. Therefore, the court will enter separate orders in each case.
*870
As noted in the previous ruling on the defendants’ motion for partial summary, the standards. applicable to motions for summary judgment in HTA cases need nоt be restated, because they have been articulated by this court in a number of published rulings.
See e.g., Johnson v. Land O’Lakes, Inc.,
The short answer to the Elevator’s motion, at least as it relates to Mr. Deters, is that the motion asks the court in advance to weigh Dr. Anthony’s evidence and conclude that its potеntial for proving actual damages is too speculative, the Elevator’s disclaimer of any “weighing” notwithstanding. Similarly, in its motion in limine, the Elevator asks the court to exclude Dr. Anthony’s testimony, because the Elevator’s expert will testify that Dr. Anthony’s analysis falls far below the standards of his profession. This “battle of the experts” also goes to thе weight of Dr. Anthony’s testimony. However, the trial judge’s function at the summary judgment stage of the proceedings is
not
to weigh the evidence and determine the truth of the matter, but to determine whether there are genuine issues for trial.
Quick v. Donaldson Co.,
However, the court reiterates here something like the caution it stated in Barz: The question that should concern a jury is not so much whether the theoretical possibility exists that Mr. Deters could have fallen in the positive part of the spectrum, exceeding “average” performance, but whether such performance is entirely too speculative to serve as a basis for “lost profits” damages. The court adds further that, at trial, it may determine as a matter of law, upon review of all of the evidence presented, that ultimately no jury question has been presented that Mr. Deters would have fallen into the positive end of the continuum, and consequently this theory of damages ultimately may not be submissi-ble.
In contrast, as to Mr. Scallon, there is no evidence at all that he could have fallen within the positive part of the continuum, because even at the “unrealistic” extreme, according to Dr. Anthony, Mr. Scallon could not show positive performance. Nor can he assert damages based on a “lost chance to win” theory, where Dr. Anthony’s evidence also establishes that he had no such “chance to win,” because no scenario, realistic or unrealistic, showed that he could obtain a profit,
i.e.,
that he could “win,” by continuing his HTAs.
Compare Wachtel v. National Alfalfa Journal Co.,
Thus, the slender thread by which the viаbility of Mr. Scallon’s breaeh-of-contract claim hangs is his assertion that, even in the absence of any' evidence of actual lost profits damages, he is entitled to “nominal” damages for breach of contract. The Iowa Supreme Court has explained the law in Iowa on availability of nominal damages as follows:
Generally, nominal damages are not recoverable in cases in which damages are an element of the cause of action.... Nominal damages are allowed, not as an equivalent for the wrong, but in recognition of a technical injury and by way of declaring a right, and are not the same as damages small in amоunt.
Cowan v. Flannery,
For example, Iowa courts have countenanced awards of nominal damages in breachof-contract cases, even cases in which, mitigation considered, the plaintiff had no actual damages.
See, e.g., Hockenberg Equip. Co. v. Hockenberg’s Equip. & Supply Co of Des Moines,
Although admittedly neither of the Iowa cases cited аbove involves a contract governed by Article 2 of the Uniform Commercial Code, the comb finds that the damages remedies of the UCC may properly be supplemented by the common law to permit the recovery of nominal damages for breach of a contract governed by Article 2.
See S & S, Inc. v. Meyer,
Furthermore, the Seventh Circuit Court of Appeals and other courts have allowed nominаl damages for breach of contracts governed by Article 2 of the UCC.
See Hydrite Chem. Co. v. Calumet Lubricants Co.,
Therefore, because the court finds that there are genuine issues of material fact as to whether the Elevator breached Mr. Scallon’s HTAs, even in the absence of any evidence of actual damages, the Elevator’s motion for summary judgment against Scallon must also be denied, because Mr. Scallon may assert a claim for nominal damages. 2
THEREFORE,
Austinville Elevator’s December 15, 1998, objections to the affidavit of the Producers’ counsel in support of the Producers’ resistance to summary judgment are sustained. The court has not considered that affidavit or the accompanying letter from Dr. Anthony to Producers’ counsel in its disposition of the reasserted motion for summary judgment. However, by the barest of margins, the court concludes that the Elevator’s reasserted motion for summary judgment on the Producers’ breach-of-contract claims should be, and hereby is, denied.
IT IS SO ORDERED.
Notes
. If the court permits submission of a claim for nominal damages to the jury, the Elevator argues that the court should grant summary judgmеnt on the Producers' claim for actual damages, preclude any testimony by their expert, because his testimony relates only to actual damages, and reorder the sequence of proof at trial, because a party with only a claim for nominal damages should not go first. The Elevator, however, cites no authority for the рroposition that claims for actual and nominal damages cannot be asserted in the alternative, or for the proposition that a party seeking only nominal damages should not go first, and the court has found none. Therefore, the court will overrule these arguments as a basis for summary judgment without further discussion.
. Although there would seem to be little reason for the Producers to pursue breach-of-contract claims that can afford them such limited relief, if they can prove a prior repudiation by the Elevator, they may have a good defense to the Elevator's own claims for breach of contract against them. Thus, the court concludes that it is up to the Producers to determine just how Pyrrhic such a victory on their breach-of-contract claims would be.