Stew-Mc Development, Inc. v. Fischer

• Decision Date: 14 August 2009
• Docket Number: No. 07-0568.,07-0568.
• Citation: 770 N.W.2d 839
• Parties: STEW-Mc DEVELOPMENT, INC., Cross-Appellant, James F. Kress, Cross-Appellant, Joseph Schmitt and Penni Schmitt, Appellants, v. Nancy M. FISCHER and Thomas J. Fischer, Appellees.
• Court: Iowa Supreme Court

770 N.W.2d 839

STEW-Mc DEVELOPMENT, INC., Cross-Appellant, James F. Kress, Cross-Appellant, Joseph Schmitt and Penni Schmitt, Appellants, v. Nancy M. FISCHER and Thomas J. Fischer, Appellees.

No. 07-0568.

Supreme Court of Iowa.

August 14, 2009.

Robert L. Sudmeier and William N. Toomey of Fuerste, Carew, Coyle, Juergens & Sudmeier, P.C., Dubuque, for appellants Schmitt and cross-appellant Stew-Mc Development, Inc.

William S. Vernon and Brian S. Fagan of Moyer & Bergman, P.L.C., Cedar Rapids, for cross-appellants Kress and the Schmitts.

Brendan T. Quann and Peter D. Arling of O'Connor & Thomas, P.C., Dubuque, for appellees.

APPEL, Justice.

In this case, we must decide the timeliness of various cross-appeals filed by the parties seeking to challenge a district court ruling that the plaintiffs possessed only a limited easement in connection with certain real estate located in Dubuque County and rejecting a counterclaim for abuse of process. For the reasons expressed below, we find the cross-appeals timely filed. On the merits of the easement and abuse-of-process claims, we affirm the judgment of the district court.

I. Factual and Procedural Background.

This case requires us to travel back in time to 1888, when Anton Birkel purchased land in Dubuque County. This property eventually passed on to his descendants, Rosa, then Joseph, and then Ferdinand Birkel. During Ferdinand's ownership, his mother Rosa lived on a separate farm in the northern portion of the property. Ferdinand allowed his mother and other relatives to travel across his land to obtain access to their home and the surrounding agricultural property. This access way became known in later years as "Kress Lane."

Rosa eventually sold her property to other persons outside the Birkel family. At some point, her land was divided into two separate parcels. Ferdinand, however, continued to permit Rosa's successors in title to use Kress Lane for access purposes. Ferdinand's land eventually passed to Louis Birkel. Louis also allowed the owners of the northern parcels of land to use Kress Lane.

In 1983, Louis sold his property to Nancy and Thomas Fischer. The two farm parcels to the north of the Fischer property continued to rely on Kress Lane to access their homes and property. Immediately prior to this dispute, the two northern parcels were owned by James Kress and Joseph and Penni Schmitt.

Though Kress Lane has vital importance to these farms, it is not a formal, well-structured thoroughfare. The lane has been described as a dead-end road six-tenths of a mile long. Only a small portion of Kress Lane crosses the Fischer property.

Kress Lane was never dedicated to and accepted by Dubuque County as a public road. No record title owner in the Birkel-Fischer chain of title ever executed a written, legal instrument granting a formal easement across the Fischer property for Kress Lane. For some time, however, Dubuque County engaged in limited road maintenance on Kress Lane by grading, installing culverts, and rocking the road. A few years ago, Dubuque County rural roads were given official names as part of the establishment of a rural address system to aid in the delivery of emergency services. This is when Kress Lane acquired its name.

In February 2002, Stew-Mc Development, Inc. made an offer to purchase the two-hundred acre Kress estate contingent upon the approval by the Dubuque County Board of Supervisors of an application to rezone the property to permit single-family residential development. In December 2002, Kress entered into a contract with the Schmitts for the sale of the portion of Kress Lane which crosses their property. Although Kress was the named purchaser in the real estate contract, Stew-Mc Development did extensive work on the roadway to improve it.

Kress hired John Herrig to assist in obtaining the approval of an application to rezone the Kress estate. At the meeting of the Dubuque County Planning Zoning Commission where Kress' application was considered, Nancy Fisher objected, asserting that the northern landowners possessed nothing more than an access easement over her property. The zoning commission refused the application, finding insufficient public access to the Kress estate. The Dubuque County Board of Supervisors accepted the recommendation and denied Kress' application for rezoning.

In light of these developments, Stew-Mc Development implemented a new strategy. It offered to purchase the Kress property unconditionally, an offer which was accepted. Kress and Stew-Mc Development also filed what was styled a "Petition for Writ of Certiorari and for Declaratory Judgment" in Dubuque County District Court, naming the county supervisors and the county as defendants. The plaintiff sought a declaration that Kress Lane was a county road, thereby connecting the Kress estate to the public road system. The Fischers intervened in order to protect their rights.

The district court granted summary judgment in favor of the Fischers. The district court determined as a matter of law that Kress Lane was a private road based on an easement and was not a public roadway, either by direct acquisition, formal dedication and acceptance, implied dedication, or prescriptive easement. The district court's judgment was affirmed by the court of appeals in an unpublished decision. Kress v. Dubuque County, 697 N.W.2d 127 (Iowa Ct.App.2005).

Stew-Mc Development regrouped after their defeat and launched another action in district court, this time naming the Fischers as defendants. In this action, the plaintiffs alleged that the Fischers had slandered their title and tortiously interfered in its contract with Kress. The plaintiffs also sought a declaratory judgment regarding the unlimited scope of their now admittedly private easement, which they asserted would be sufficient for residential purposes. Finally, they claimed an easement by prescription. The defendants filed a counterclaim alleging abuse of process.

The district court granted summary judgment in favor of the Fischers on all claims except the action for declaratory judgment of an unlimited private easement. The district court stated that this limited issue had not yet been litigated and that the pleadings submitted by the parties were insufficient to allow for summary judgment. In a later ruling, the district court determined that there was no need to determine the exact scope of the private easement as its proposed use—residential development—would obviously exceed its scope. The plaintiffs' action for declaratory judgment thus was denied.

Only the Fischers' abuse-of-process claim remained unsettled. The matter proceeded to a trial before the court. At trial, Nancy Fischer testified that plaintiffs' alleged agent, Herrig, had made several inappropriate and threatening remarks. Specifically, she testified that Herrig told her that the property at issue did not belong to her, that she should not to attend the meeting of the zoning commission, and that if she attempted to obstruct the application to rezone the Kress property, the Fischers would be taken to court, which would be a great financial burden on her and her family. Nancy Fischer further testified that on another occasion, Herrig again warned her that legal action would be very costly and threatened the Fischers with financial ruin if they refused to cooperate with the development of the Kress property. Finally, Thomas Fischer testified that Herrig had come to the Fischer farm unannounced and told him that if the matter went to court, it would get "costly and ugly." Fischer found the remark to be a threat, improper, and unnecessary.

Plaintiffs' original counsel in the action, James Roth, testified on behalf of the plaintiffs. He stated that the purpose of the litigation was to establish the scope and extent of the plaintiffs' easement across the Fischer property and then seek a zoning variance from the county. Roth specifically denied that the lawsuit was designed to threaten or intimidate the Fischers. He further observed that if the plaintiffs prevailed on its easement-by-prescription claim, it would assist them in their claims of slander of title and tortious interference with contract. Herrig also testified. He denied making the statements attributed to him by the Fischers.

The district court held that the Fischers failed to prove their abuse-of-process claim. The district court specifically found that the plaintiffs' "primary purpose in commencing the lawsuit was to establish a prescriptive easement and secure a declaration of their rights under [the] easement."

The Schmitts filed a notice of appeal twenty-nine days after this final district court decision. The Schmitts appealed the district court's ruling denying their claim of an unlimited easement across Kress Lane. Three days later, the Fischers filed what they styled as a cross-appeal, asserting that the district court erroneously dismissed their claim for abuse of process. Four days after the Fischer cross-appeal, Stew-Mc Development cross-appealed, challenging the district court's ruling that allowed the Fischers to amend their abuse-of-process petition on the eve of trial to assert a claim for attorneys' fees. The Schmitts and Kress joined in this cross-appeal.

At this point, the Fischers filed a motion to dismiss Stew-Mc Development's cross-appeal as untimely. The plaintiffs then filed a motion to dismiss the Fischers' cross-appeal as untimely. All parties then deluged the court with resistances to the motions of the adverse parties, and the procedural issues were thoroughly joined.

II. Standard of Review.

We review a grant of summary judgment, whether the action be at law or equity, for correction of errors at law. Keokuk Junction Ry. v. IES Indus., Inc., 618 N.W.2d 352, 355 (Iowa 2000). Summary judgment is appropriate when, after review of the entire record, there is no genuine issue of material fact. Id.

The scope of review in actions for abuse of process is...