Third Party Claims in Dispute Between Lake View Neighbors Over Construction of a Fence Dismissed

E-FILED 2013 SEP 18 11:36 AM SAC - CLERK OF DISTRICT COURT

2RCV01

IN THE IOWA DISTRICT COURT FOR SAC COUNTY

JOHN R DRILLING ,

PLAINTIFF(S),

vs.

HENRY HORST ,

DEFENDANT(S).

Case No. 02811 EQCV019458

O R D E R

A hearing in the above case has been set for September 24, 2013. The file now reflects

that a cross-petition has been filed, which adds several new parties, who have not yet

been served.

Accordingly, the following Order is entered.

IT IS ORDERED that the hearing set for September 24, 2013, is CONTINUED and

reschedueld for Monday, October 21, 2013, at 10:00 a.m. One hour has been allotted

for the hearing.

CLERK TO FURNISH COPIES TO:

Counsel of Record

Pro Se Parties

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State of Iowa Courts

Case Number Case TitleEQCV019458 JOHN DRILLING VS. HENRY HORST

Type: OTHER ORDER

So Ordered

Electronically signed on 2013-09-23 11:47:29

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E-FILED 2013 OCT 02 8:34 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 OCT 18 3:14 PM SAC - CLERK OF DISTRICT COURT

IOWA DISTRICT COURT FOR SAC COUNTY

JOHN DRILLING, ) ) Plaintiff, ) vs. ) ) HENRY HORST, ) ) Defendant. ) No. EQCV019458 --------------------------------------------- Order HENRY HORST, ) Third-Party Plaintiff, ) Vs. ) ) DENNIS WERKMEISTER and ) ERIN E. McCULLOUGH, d/b/a ) LAW OFFICES OF ERIN E. ) McCULLOUGH, ) Third-Party Defendants. )

The captioned matter was set for hearing on this date. Counsel

Nepper has filed a Motion for Continuance. The Court is informed by attorney

James Van Dyke that necessary parties have not been served in accordance with

statute. As a consequence, this matter shall be continued.

IT IS THEREFORE ORDERED that hearing is continued to

December 2, 2013 at 11:00 a.m.

Clerk to forward copies to: Allen Nepper James R. Van Dyke



Type: OTHER ORDER


So Ordered

Electronically signed on 2013-10-21 09:55:00 page 2 of 2


Notice Id: 2CA004IN THE IOWA DISTRICT COURT FOR SAC COUNTY

JOHN R DRILLING , Plaintiff / Petitioner, vs. HENRY HORST , Defendant / Respondent.

Notice of Trial Setting Conference Case No: 02811 EQCV019458

A scheduling conference will be held on 11/21/13 at 10:30 AM with Kellie Orres, as District CourtDesignee, pursuant to I.R.C.P 1.602. This conference shall be conducted by telephone conference call initiated by plaintiff's counsel. Kellie Orres may be contacted via telephone at: (515) 574-3752. 1. PARTICIPATION: All attorneys appearing in the case shall participate in this conference. A partywho is not represented by counsel shall contact the Court Administrator's office (at the above phonenumber) prior to the date and time of the conference call. 2. TRIAL SCHEDULING: A firm trial date shall be established in accordance with the SupremeCourt's time standards as provided by Chapter 23, Iowa Court Rules. NO CONTINUANCES SHALLBE GRANTED EXCEPT BY COURT ORDER, UPON GOOD CAUSE SHOWN. 3. SANCTIONS: If a party or attorney fails to participate in the scheduling conference or issubstantially unprepared to participate in the conference, the Court may impose appropriatesanctions, including reasonable expenses and attorney fees. (I.R.C.P 1.602(5)). /s/ Kellie Orres --------------------------------------- Designee of the Court Clerk to provide copies ornotice of document to attorneysof record and parties appearingpro se.

E-FILED 2013 NOV 08 10:30 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 NOV 08 12:20 PM SAC - CLERK OF DISTRICT COURT


COME NOW the Third-party Defendants, Dennis Werkmeister and Erin E. McCullough

d/b/a The Law Offices of Erin E. McCullough, and in support of the above-captioned motion

state as follows:

1. On August 27, 2013, the Plaintiff, John Drilling, filed a petition in equity against

Henry Horst, seeking a temporary and permanent injunction enjoining Horst from constructing a

common-fence on his property pursuant to a building permit issued by the Lake View City

Council.

2. Horst responded by filing an answer denying the allegations of the petition and by

filing a cross-petition against Werkmeister and McCullough seeking indemnification from them.

3. The cross-petition fails to state a claim upon which any relief may be granted.

See Iowa R. Civ. P. 1.421(1)(f); McNally & Nimergood v. Neumann-Kiewit Constructors, Inc.,

648 N.W.2d 564, 570 (Iowa 2002) (In the absence of a duty imposed by law to indemnify

another, there is no right to indemnification unless derived from a contract.).

4. Werkmeister and McCullough request the Court to set this matter for hearing and

upon hearing, grant their motion and dismiss the cross-petition.

WHEREFORE the Third-party Defendants request the Court to set this matter for

hearing and upon hearing, grant their motion and dismiss the cross-petition and for such other

and further relief as the Court deems just and equitable in the premises.

JOHN DRILLING,

Plaintiff,

vs.

HENRY HORST, Defendant.

__________________________________

HENRY HORST, Third-party Plaintiff,

vs.

DENNIS WERKMEISTER and ERIN

E. McCULLOUGH, d/b/a LAW

OFFICES OF ERIN E.

McCULLOUGH, Third-party Defendants.

No. EQCV019458

MOTION TO DISMISS


/s/ Gina C. Badding

Gina C. Badding AT0000499 for

NEU, MINNICH, COMITO & NEU, P.C.

721 N. Main Street

P.O. Box 367

Carroll, Iowa 51401

(712) 792-3508

(712) 792-3563 (fax)

[email protected]

ATTORNEYS FOR THIRD-PARTY

DEFENDANTS

CERTIFICATE OF SERVICE

I hereby certify that on November 20, 2013, I electronically filed the foregoing with the Clerk of Court

using the EDMS system, which will send notification of such filing to the following:

Allen Nepper

James R. Van Dyke

/s/ Gina C. Badding

Gina C. Badding



COMES NOW, Gina C. Badding for NEU, MINNICH, COMITO & NEU, P.C. and enters

the firms appearance for the Third-party Defendants, Dennis Werkmeister and Erin E.

McCullough d/b/a The Law Offices of Erin E. McCullough, in the above-titled case.

/s/ Gina C. Badding



721 N. Main Street

P.O. Box 367

Carroll, Iowa 51401

(712) 792-3508

(712) 792-3563 (fax)

[email protected]


DEFENDANTS

JOHN DRILLING,

Plaintiff,

vs.


__________________________________


vs.



OFFICES OF ERIN E.


No. EQCV019458

APPEARANCE



I hereby certify that on November 20, 2013, I electronically filed the foregoing with the Clerk of Court

using the EDMS system, which will send notification of such filing to the following:

Allen Nepper

James R. Van Dyke

/s/ Gina C. Badding

Gina C. Badding


Notice Id: 2CA101

IOWA DISTRICT COURT FOR SAC COUNTY JOHN R DRILLING , Plaintiff / Petitioner, vs. HENRY HORST , Defendant / Respondent.

Case No: 02811 EQCV019458 Trial Notice

The above entitled matter is hereby scheduled for non-jury trial on 05/07/14 at 09:00 AM . 1 Day InjunctionDiscovery Due 60 days prior to trial /s/ Kellie Orres ----------------------------------- Designee of the Court Clerk to provide copies or noticeof this document to attorneys of record,parties appearing pro se andjudge if assigned Docket Code = OSTR

E-FILED 2013 NOV 21 11:28 AM SAC - CLERK OF DISTRICT COURT

Notice ID: 2RCV31


JOHN R DRILLING ,

Plaintiff,

vs.

HENRY HORST ,

Defendant.

Case No. 02811 EQCV019458

ORDER SETTING HEARING

The Third Party Defendants have filed a Motion to Dismiss. A hearing will now be

scheduled.

IT IS, THEREFORE, THE ORDER OF THE COURT as follows:

1. A Hearing is scheduled on 12/02/2013 at 11:00 AM at the Sac Co. Courthouse,

100 NW State St., Sac City, Iowa.

If you need assistance to participate in court due to a disability, call the disability coordinator at

641-421-0990. Persons who are hearing or speech impaired may call Relay Iowa TTY (1-800-735-2942).

Disablity coordinators cannot provide legal advice.

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State of Iowa CourtsCase Number Case TitleEQCV019458 JOHN DRILLING VS. HENRY HORSTType: ORDER SETTING HEARING

So Ordered


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COME NOW the Third-party Defendants, Dennis Werkmeister and Erin E. McCullough

d/b/a The Law Offices of Erin E. McCullough, and in reply to the Third-party Plaintiffs

Resistance to their Motion to Dismiss state as follows:

1. Henry Horst, the Third-party Plaintiff, characterizes his action against

Werkmeister and McCullough as one for equitable indemnification and argues if Drilling has

a claim for relief against Horst, then Horst has a claim for relief against Werkmeister and/or

McCullough.

2. It is true that indemnification, as a form of restitution, can be implied by law in

tort claims to shift liability for an obligation to the party who should bear ultimate responsibility

for it under principles of equity, or it can be based on contract. McNally & Nimbergood v.

Neumann-Kiewit Constructors, Inc., 648 N.W.2d 564, 570 (Iowa 2002) (emphasis added). Horst

has not alleged a tort claim against Werkmeister and McCullough.

3. Setting aside Horsts failure to allege a tort claim as the basis for his equitable

indemnification action against Werkmeister and McCullough, Horst has also failed to allege any

set of facts establishing that Werkmeister and McCullough owed him a duty of indemnification.

Id. (In the absence of a duty imposed by law to indemnify another, there is no right to

indemnification unless derived from a contract.) (emphasis added). [A]n essential element in

establishing a right to indemnity is that the party asserting indemnity was legally obligated to

discharge the obligation for which the party seeks indemnity. Henning v. Security Bank, 564

N.W.2d 398, 401 (Iowa 1997).

JOHN DRILLING,

Plaintiff,

vs.


__________________________________


vs.



OFFICES OF ERIN E.


No. EQCV019458

REPLY TO RESISTANCE TO

MOTION TO DISMISS

E-FILED 2013 DEC 02 11:16 AM SAC - CLERK OF DISTRICT COURT

4. Our courts have never applied equitable indemnity based on notions of simple

fairness, as Horst seems to be alleging should be done in this case. Wells Dairy, Inc. v. Am.

Indus. Refrigerations, Inc., 762 N.W.2d 463, 471 (Iowa 2009) (noting the application of

equitable indemnity based on that ground have been subject to considerable academic debate

and criticized by it in past cases); see also Woodruff Constr. Co. v. Barrick Roofers, Inc., 406

N.W.2d 783, 786 (discussing this criticism and refusing to apply equitable indemnity based on

concepts of fairness).

WHEREFORE the Third-party Defendants request the Court to grant their motion to

dismiss the cross-petition and for such other and further relief as the Court deems just and

equitable in the premises.

/s/ Gina C. Badding



721 N. Main Street

P.O. Box 367

Carroll, Iowa 51401

(712) 792-3508

(712) 792-3563 (fax)

[email protected]


DEFENDANTS


I hereby certify that on December 2, 2013, I electronically filed the foregoing with the Clerk of Court using

the EDMS system, which will send notification of such filing to the following:

Allen Nepper

James R. Van Dyke

/s/ Gina C. Badding

Gina C. Badding

E-FILED 2013 DEC 02 11:16 AM SAC - CLERK OF DISTRICT COURT

2RCV12IN THE IOWA DISTRICT COURT FOR SAC COUNTY

JOHN R DRILLING , Plaintiff, vs. HENRY HORST , Defendant.

Case No. 02811 EQCV019458 COURT REPORTER MEMORANDUM AND CERTIFICATE

COURT REPORTER MEMORANDUM

(The court reporter shall file this memorandum with the district court clerk.)

Appearances: For Plaintiff/Petitioner: Alan NepperFor Defendant/Respondent: James Van DykeOther: Gina Badding Information required by Iowa Rule of Civil Procedure 1.903(3): I, Tara Gibson, am providing the following information as required by Iowa Rule of Civil Procedure1.903(3): 1. The type of proceeding that was reported: Injunction 2. The date(s) on which the proceeding occurred: December 2, 2013 3. The name of the court reporter who reported the proceeding: Tara Gibson 4. The name of the judge who presided over the proceeding: Gary McMinimee 5. The reporting fee for the proceeding: $40.00 6. We, the undersigned judge before whom the above-entitled case was tried, and the official courtreporter who, by order of the Court, reported the same, do hereby certify that the above and foregoingis the report of the whole proceedings upon the trial and/or hearing of the above-entitled cause madeand taken pursuant to the order and direction of the Court, in accordance with Iowa Code Section624.10. /s/Tara Gibson _________________________________________

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E-FILED 2013 DEC 02 2:06 PM SAC - CLERK OF DISTRICT COURT

State of Iowa CourtsCase Number Case TitleEQCV019458 JOHN DRILLING VS. HENRY HORSTType: COURT REPORTER MEMORANDUM AND CERTIFICATE

So Ordered


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IOWA DISTRICT COURT FOR SAC COUNTY JOHN R DRILLING , Plaintiff, vs. HENRY HORST , Defendant.

Case No: 02811 EQCV019458 EXHIBIT LIST Hearing December 2, 2013 Presiding Judge: Gary McMinimee

The following exhibits were offered and admitted by the Court at the hearing as shown above: Plaintiff's Exhibits 1. Photo2. Photo3. Canceled check4. Council agenda5. Fences, walls and vision clearance6. Permit application7. Permit application8. Description of land9. Judgment entry and decree10. Platt of Drillng's North Shore Second Addition11. Photo12. Warranty deed13. Photo14. Photo15. Photo16. Photo17. Photo18. Aerial view Defendant's Exhibits A.

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B.C. Council agendaD.E.F. Defendant's affidavit in resistance to request for injunctionG. Aerial view of landH. PhotoI. CD

2 of 3


State of Iowa CourtsCase Number Case TitleEQCV019458 JOHN DRILLING VS. HENRY HORSTType: EXHIBIT LIST

So Ordered


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IN THE IOWA DISTRICT COURT FOR SAC COUNTY JOHN DRILLING, ) ) Plaintiff, ) No. EQCV019458 ) Vs. ) ORDER ) HENRY HORST, ) ) Defendant. ) ____________________________________) HENRY HORST, ) ) Third-Party Plaintiff, ) ) Vs. ) ) DENNIS WERKMEISTER AND ) ERIN E. MCCULLOUGH d/b/a ) LAW OFFICES OF ERIN E. ) MCCULLOUGH, ) ) Third-Party Defendants. )

This matter came on for hearing on temporary injunction on

December 2, 2013. The parties appeared with their attorneys.

Plaintiff seeks a temporary injunction prohibiting Defendant from

constructing a 8-foot fence between the parties properties along the south and

east boundary lines of Plaintiffs property. He claims the fence would be in

violation of the city ordinance and illegal because it would cross a proposed road.

Defendant resists the entry of a temporary injunction.

Iowa law authorizes the entry of a temporary injunction in three

circumstances:

When the Petition, supported by affidavit shows the Plaintiff is entitled to relief which includes restraining the commission or continuance of some act which would greatly or irreparably injure the Plaintiff.

Where, during the litigation, it appears that a party is doing, procuring or suffering to be done, or threatens or is about to

E-FILED 2014 JAN 03 2:37 PM SAC - CLERK OF DISTRICT COURT

do, any act violating the others rights respecting the subject of the action intending the make the judgment ineffectual.

In any case specifically authorized by statute. Iowa Rule of Civil Procedure 1.1502.

In this Courts view, Plaintiff has failed to establish his right to a

temporary injunction on any of these grounds. Plaintiff has not cited any statute

specifically authorizing a temporary injunction. Neither has he shown that the

failure to issue the injunction will cause him great or irreparable harm nor tend

to make the ultimate judgment in this matter ineffectual. Even if the fence is

constructed as Defendant proposes, an ultimate finding in favor of the Plaintiff on

the merits would not be ineffectual; the Defendant is clearly on notice of the

Plaintiffs positions and there would seem to be little impediment to the Court

requiring Defendant to promptly remove the fence at Defendants costs. The

only harm that Plaintiff has asserted is a lack of full view of the lake from a

portion of his property and the deprivation of a more convenient access to his

property. Rather than accessing his property on the east, the fence would

require he to access it on the west. Although his view of the lake may be block to

some extent by the fence if it is constructed during these proceedings, the Court

does not consider that such relatively short term irreparable harm warrants the

issuance of a temporary injunction.

ORDER

IT IS THEREFORE ORDERED that the Application for Temporary

Injunction is denied.

Dated this 4th day of January, 2014.

Clerk to provide copies to: Counsel of record



Type: OTHER ORDER


So Ordered



IN THE IOWA DISTRICT COURT FOR SAC COUNTY JOHN DRILLING, ) ) Plaintiff, ) No. EQCV019458 ) Vs. ) ORDER ) HENRY HORST, ) ) Defendant. ) ____________________________________) HENRY HORST, ) ) Third-Party Plaintiff, ) ) Vs. ) ) DENNIS WEKMEISTER and ) ERIN E. McCULLOUGH d/b/a ) LAW OFFICES OF ERIN E. ) McCULLOUGH, ) ) Third-Party Defendants. ) Motion to Dismiss came on for hearing on December 2, 2013. The

parties appeared with their attorneys. Third-Party Defendants, relying on

McNally & Nimergood v. Neumann-Kiewit Constructors, Inc., 648 N.W.2d 564,

570 (Iowa 2002), seek dismissal on the ground that the Cross Petition fails to

state a claim upon which relief can be granted. Third-Party Plaintiff in his

resistance indicates that he relies upon the doctrine of equitable indemnification.

When an equitable indemnity is involved, the intention of the parties to indemnify, unlike the case of implied contractual indemnity, is not relevant. Instead, the law imposes indemnity due to the relationship of the parties and the underlying loss regardless of intention. Equitable indemnification arises from non-contractual obligations.

Wells Dairy, Inc., v. Air, 762 N.W.2d 463, 471 (Iowa 2009). Iowa recognizes

various traditional concepts of equitable indemnity, as well as, the independent

duty branch of equitable indemnity. However, here there is no basis for

equitable indemnity under any of the traditional concepts and there has been no


showing of any independent duty. Nonetheless, some courts have imposed

equitable indemnity based upon simple fairness. The Iowa Supreme Court has

never embraced that branch of equitable indemnification and in fact has criticized

it citing the need for stability in the law. Wells Dairy, Inc., v. Air, 762 N.W.2d

463, 472 (Iowa 2009).

Although it appears unlikely that the Third-Party Plaintiff could

establish facts that would cause this Court to conclude that equitable indemnity is

appropriate under a fairness doctrine, this is a Motion to Dismiss. Regarding

such motions, the Iowa Supreme Court has said:

[W]e certainly do no recommend the filing of motions to dismiss in litigation, the viability of which is debatable. Neither do we endorse sustaining such motions, even where the ruling is eventually affirmed. Both the filing and the sustaining are bad ideas.

Cutler v. Klass, Whicher & Mishne, 473 N.W.2d 178, 181 (Iowa 1991). The

Motion to Dismiss should be overruled.

ORDER

IT IS THEREFORE ORDERED that the Motion to Dismiss is

overruled

Dated this 4th day of January, 2014.

Clerk to provide copies to: Counsel of record



Type: OTHER ORDER


So Ordered



E-FILED 2014 APR 30 4:07 PM SAC - CLERK OF DISTRICT COURT

E-FILED 2014 MAY 02 8:37 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2014 MAY 02 10:45 AM SAC - CLERK OF DISTRICT COURT

Third Party Claims in Dispute Between Lake View Neighbors Over Construction of a Fence Dismissed

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