third party claims in dispute between lake view neighbors over construction of a fence dismissed
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E-FILED 2013 SEP 18 11:36 AM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 SEP 18 11:36 AM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 SEP 18 11:36 AM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 SEP 18 11:36 AM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 SEP 18 11:36 AM SAC - CLERK OF DISTRICT COURT
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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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E-FILED 2013 SEP 23 11:47 AM SAC - CLERK OF DISTRICT COURT
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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
2 of 2
E-FILED 2013 SEP 23 11:47 AM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 SEP 25 10:56 AM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 OCT 02 8:34 AM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 OCT 02 8:34 AM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 OCT 02 8:34 AM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 OCT 18 11:25 AM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 OCT 18 11:25 AM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 OCT 18 11:25 AM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 OCT 18 11:25 AM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 OCT 18 3:14 PM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 OCT 18 3:14 PM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 OCT 21 8:41 AM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 OCT 21 8:41 AM SAC - CLERK OF DISTRICT COURT
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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
E-FILED 2013 OCT 21 9:55 AM SAC - CLERK OF DISTRICT COURT
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State of Iowa Courts
Type: OTHER ORDER
Case Number Case TitleEQCV019458 JOHN DRILLING VS. HENRY HORST
So Ordered
Electronically signed on 2013-10-21 09:55:00 page 2 of 2
E-FILED 2013 OCT 21 9:55 AM SAC - CLERK OF DISTRICT COURT
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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
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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
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E-FILED 2013 NOV 08 12:20 PM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 NOV 08 12:21 PM SAC - CLERK OF DISTRICT COURT
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IN THE IOWA DISTRICT COURT FOR SAC COUNTY
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
E-FILED 2013 NOV 20 3:39 PM SAC - CLERK OF DISTRICT COURT
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/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)
gina@nmcnlaw.com
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
E-FILED 2013 NOV 20 3:39 PM SAC - CLERK OF DISTRICT COURT
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IN THE IOWA DISTRICT COURT FOR SAC COUNTY
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
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)
gina@nmcnlaw.com
ATTORNEYS FOR THIRD-PARTY
DEFENDANTS
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
APPEARANCE
E-FILED 2013 NOV 20 4:02 PM SAC - CLERK OF DISTRICT COURT
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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
E-FILED 2013 NOV 20 4:02 PM SAC - CLERK OF DISTRICT COURT
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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
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Notice ID: 2RCV31
IN THE IOWA DISTRICT COURT FOR SAC COUNTY
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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E-FILED 2013 NOV 21 2:35 PM SAC - CLERK OF DISTRICT COURT
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State of Iowa CourtsCase Number Case TitleEQCV019458 JOHN DRILLING VS. HENRY HORSTType: ORDER SETTING HEARING
So Ordered
Electronically signed on 2013-11-21 14:35:18
2 of 2
E-FILED 2013 NOV 21 2:35 PM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 NOV 29 12:41 PM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 NOV 29 12:41 PM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 NOV 29 12:41 PM SAC - CLERK OF DISTRICT COURT
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IN THE IOWA DISTRICT COURT FOR SAC COUNTY
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.
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
REPLY TO RESISTANCE TO
MOTION TO DISMISS
E-FILED 2013 DEC 02 11:16 AM SAC - CLERK OF DISTRICT COURT
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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
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)
gina@nmcnlaw.com
ATTORNEYS FOR THIRD-PARTY
DEFENDANTS
CERTIFICATE OF SERVICE
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
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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
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State of Iowa CourtsCase Number Case TitleEQCV019458 JOHN DRILLING VS. HENRY HORSTType: COURT REPORTER MEMORANDUM AND CERTIFICATE
So Ordered
Electronically signed on 2013-12-02 14:06:09
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E-FILED 2013 DEC 02 2:06 PM SAC - CLERK OF DISTRICT COURT
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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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E-FILED 2013 DEC 16 1:33 PM SAC - CLERK OF DISTRICT COURT
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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
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E-FILED 2013 DEC 16 1:33 PM SAC - CLERK OF DISTRICT COURT
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State of Iowa CourtsCase Number Case TitleEQCV019458 JOHN DRILLING VS. HENRY HORSTType: EXHIBIT LIST
So Ordered
Electronically signed on 2013-12-16 13:33:34
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E-FILED 2013 DEC 16 1:33 PM SAC - CLERK OF DISTRICT COURT
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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
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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
E-FILED 2014 JAN 03 2:37 PM SAC - CLERK OF DISTRICT COURT
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State of Iowa Courts
Type: OTHER ORDER
Case Number Case TitleEQCV019458 JOHN DRILLING VS. HENRY HORST
So Ordered
Electronically signed on 2014-01-03 14:37:25 page 3 of 3
E-FILED 2014 JAN 03 2:37 PM SAC - CLERK OF DISTRICT COURT
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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 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
E-FILED 2014 JAN 03 2:37 PM SAC - CLERK OF DISTRICT COURT
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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
E-FILED 2014 JAN 03 2:37 PM SAC - CLERK OF DISTRICT COURT
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State of Iowa Courts
Type: OTHER ORDER
Case Number Case TitleEQCV019458 JOHN DRILLING VS. HENRY HORST
So Ordered
Electronically signed on 2014-01-03 14:37:56 page 3 of 3
E-FILED 2014 JAN 03 2:37 PM SAC - CLERK OF DISTRICT COURT
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E-FILED 2014 APR 30 4:07 PM SAC - CLERK OF DISTRICT COURT
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E-FILED 2014 APR 30 4:07 PM SAC - CLERK OF DISTRICT COURT
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E-FILED 2014 MAY 02 8:37 AM SAC - CLERK OF DISTRICT COURT
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E-FILED 2014 MAY 02 10:45 AM SAC - CLERK OF DISTRICT COURT
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E-FILED 2014 MAY 02 10:45 AM SAC - CLERK OF DISTRICT COURT
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