Brown v. City of Red Oak
| Decision Date | 17 November 2022 |
| Docket Number | 21-1759 |
| Parties | SCOTT BROWN, Plaintiff-Appellant, v. CITY OF RED OAK, Respondent-Appellee |
| Court | Court of Appeals of Iowa |
Appeal from the Iowa District Court for Montgomery County, Jeffrey L. Larson, Judge.
A plaintiff appeals the district court's denial of his motion for leave to amend his petition.
Brian E. Tackett, Glenwood, for appellant. Brianna Sorensen Shenandoah, for appellee.
Considered by Ahlers, P.J., and Badding and Chicchelly, JJ.
Scott Brown appeals the district court's denial of his motion for leave to amend his petition against the City of Red Oak (City). Finding the district court abused its discretion, we reverse its ruling and remand for further proceedings consistent with this opinion.
In August 2018, Brown sought guidance from the City regarding setback or permitting requirements for a retaining wall he wished to construct. The City Clerk left a voicemail informing Brown that there are no setback or permitting requirements but relayed a height limitation to ensure visibility at the street corner. Brown proceeded with construction on this advice.
In September, the City informed Brown that his nearly completed retaining wall was in violation of city code because it extends beyond his property line onto the City's right-of-way. On October 18, Brown received notice that he must either tear the wall down by December 24 or incur a penalty of $750 to $1000 per day for the continuing infraction and be assessed the cost for the City to remove it for him. Brown requested and received a hearing before the city council in December, whereafter the council voted to deny Brown's request to occupy the right-of-way. In light of the winter season, the City granted Brown an extension on removal of the wall until the spring.
In April 2019, Brown filed a petition in district court requesting a temporary injunction and declaratory relief, or monetary damages in the alternative. He claimed the wall should be allowed to stand based on the City's acquiescence to the use of its property in this manner evidenced by other walls similarly encroaching on city property. Alternatively, Brown asserted the City should bear the cost of removal because he relied on the City's advice in its construction.
In March 2020, Brown served discovery requests on the City. The City filed its response on June 9, wherein it "acknowledge[d] that there are other retaining walls which encroach onto the city's right of way." The response further indicated that the City has never before forcibly removed such a structure, brought suit to enforce its right-of-way, granted a variance to allow such encroachment, or passively permitted such encroachment. On June 19, Brown filed a motion for leave to amend his petition to add a claim for selective enforcement. He alleged a violation of the state constitution's equal protection clause based on the City's lack of other enforcement and his previous "bad blood" with a city employee. After an unreported hearing, the court denied the motion, summarily citing an inability to determine whether the amendment was appropriate. Brown filed a motion to reconsider, which the court denied after Brown and his attorney failed to appear at the hearing. Our supreme court denied Brown's subsequent application for interlocutory appeal.
In October 2021, the district court held a hearing on the City's motion for summary judgment, during which Brown made an oral renewal of his motion for leave to amend. In November, the court granted summary judgment in favor of the City, but its order did not provide a ruling with respect to Brown's renewed motion. Brown filed a timely appeal, alleging the district court abused its discretion in denying his motion.
The City alleges Brown failed to preserve error because he (1) failed to request an enlargement of the findings in the original denial of his motion to amend, (2) failed to appear at the hearing on his motion to reconsider the denial, and (3) failed to bring to the district court's attention the lack of ruling on his renewed motion for amendment made at the hearing on summary judgment. Although Brown did not request an enlargement per se, he did file a motion to reconsider after the district court's initial ruling on his motion to amend. Moreover, his failure to appear at the hearing on his motion to reconsider or seek another ruling after he raised the motion again did not impede the objectives of error preservation:
For an issue to be preserved[,] the objectives of the error preservation rules must be accomplished: challenges must be raised at the earliest possible point, opposing counsel must have notice and the opportunity to be heard, and the district court must have the opportunity to consider and pronounce a ruling on the issue.
State v. Opperman, 826 N.W.2d 131, 133 (Iowa Ct. App. 2012). Indeed, an adverse, final ruling on a pre-trial motion may be sufficient to preserve error even when the motion is not renewed at trial. See, e.g., State v. Leedom, 938 N.W.2d 177, 191 (Iowa 2020) (). Because Brown's pre-trial actions accomplished the requisite objectives, error was preserved.
As for the heart of Brown's claim, he contends the district court abused its discretion because the proposed amendment would not substantially change the...
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