In re Hammen
| Citation | 399 B.R. 867 |
| Decision Date | 23 January 2009 |
| Docket Number | No. 07-30156.,No. 07-03523.,07-03523.,07-30156. |
| Parties | Joseph Frances HAMMEN and Cynthia Joette Hammen, Debtor(s). Frances E. Bain Estate, Plaintiff(s) v. Joseph F. Hammen and Cynthia J. Hammen, Defendant(s). |
| Court | United States Bankruptcy Courts. Eighth Circuit. U.S. Bankruptcy Court — Southern District of Iowa |
Philip D. McCormick, Mount Pleasant, IA, for Joseph Hammen.
This matter came before the undersigned for trial on September 9, 2008. Plaintiff Frances E. Bain Estate was represented by attorney Robert G. Schlegel. Debtors/Defendants Joseph and Cynthia Hammen were represented by attorney Philip D. McCormick. After the presentation of evidence and argument, the parties were granted time to attempt a resolution. After three extensions, the final deadline for filing briefs was set for November 21, 2008. At that time, the parties informed the Court that they were unable to reach a resolution of the proceeding. Thus, the matter is now under advisement and ready for resolution by the Court. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I).
Plaintiff asserts Debtors encroached on land owned by Frances Bain, now deceased, when they constructed a pond on their adjacent property in 2000. It seeks damages and exception from discharge. Debtors assert Mrs. Bain consented to the construction of the pond, which was beneficial to her property. They argue this action is barred by the statute of limitations and estoppel.
Debtors purchased a five-acre tract of land in Washington County, Iowa in 1999. This land is bordered on three sides by land owned, at that time, by Frances E. Bain. The remaining side is bordered by 320th Street. The dam and pond were built in 2000. Mrs. Bain died on October 12, 2005. Three of her children are the executors of her Estate which is the Plaintiff in this adversary.
Before building their house, Debtors decided to construct a pond on the northeast portion of their land and a terrace on the western border. They contacted the Washington County Soil Conservation Service ("Conservation Office") in late 1999 and met with Gary Wenger, a soil conservation technician. At that time, Mr. Wenger was also Mrs. Bain's farm tenant. He initiated the process to design the pond and a site survey was done to determine the best placement of the pond.
Defendants' Exhibit X is a copy of a letter to Mrs. Bain from the Conservation Office dated June 16, 2000 and signed by Gary Wenger. It describes Debtors' plans to build a pond with the dam and pond possibly being partially on Mrs. Bain's property. It also identifies an option to move the dam if Mrs. Bain did not want water on her property. The letter further states that Debtor Joe Hammen would contact her with a "Group Planning Request."
The "Group Planning Request" is set out as Defendants' Exhibit Z. It is an agreement by both parties to cooperate with the Conservation Office in evaluating what is described as an erosion issue involving the parties' land. The document anticipates a future survey and investigation by the Conservation Office, with a resulting "group inventory and evaluation report." If this report was acceptable to the parties, the Group Planning Request provides:
[W]e the undersigned will secure the necessary land easements and rights-of-way, permits, and arrange for the financing and division of costs for construction, operation, and maintenance of the proposed works of improvement.
Defs.' Ex. Z. The record is silent on any follow-up beyond the Group Planning Request except for a survey which was apparently completed.
Gary Wenger testified that he prepared the Group Planning Request and printed the names of Joe Hammen and Frances Bain with places for them to sign at an X. The document is not dated. Debtor Joe Hammen signed under the line where his name is printed. The printed name of Frances Bain appears under the line where her name was placed by Mr. Wenger.
Gary Bain, Frances Bain's son and one of the executors of her estate, testified that this was not his mother's signature. He first saw this document sometime after Mrs. Bain's death when he received a copy of it from Gary Wenger. Mr. Bain testified he immediately stated to Gary Wenger that was not his mother's signature and Gary Wenger agreed with him. Gary Wenger testified he does not recall agreeing with Gary Bain regarding whether that was Mrs. Bain's signature.
Debtors presented the testimony of Barbara Downer, a board-certified forensic document examiner. She stated she compared the printed signature of Frances Bain on the Group Planning Request with the various signatures on Defendant's Exhibits A through T. Ms. Downer pointed out that the "B" in Bain had similar characteristics in the printed signature and the cursive signatures. She stated she found no signs of forgery. Also, the letter ratios or proportions were consistent between the cursive and printed signatures. Ms. Downer concluded that it is "highly likely" that Mrs. Bain signed the Group Planning Request with her printed signature.
Clarence Wenger, a neighbor who has known Mrs. Bain since they were children, testified that he talked to Mrs. Bain at the request of Debtor Joe Hammen. He stated that Mrs. Bain's daughter, Lora Bain, was also present. Mr. Wenger asked Mrs. Bain if she would sell a little of her land to make a nicer place for Joe Hammen's home and the pond. The specific date of this conversation is not known, although it allegedly occurred close to the time the pond was built in the summer of 2000. Mr. Wenger testified that Mrs. Bain stated that she was not going to give any more ground and pounded the table. She said other people had asked and she didn't want to talk about it.
Debtor Joe Hammen testified that he talked to Clarence Wenger about whether he would contact Mrs. Bain to help him get her consent for his plans to build a pond. He did not intend to ask Mrs. Bain to sell any of her land for his pond project. Debtor believed Mr. Wenger preferred not to talk to Mrs. Bain. He testified he did not know Mr. Wenger actually talked to Mrs. Bain or that he asked her to sell Debtor some of her land until this litigation arose.
Gary Wenger, Mrs. Bain's farm tenant and the Conservation Office's technician in charge of Debtors' pond project, testified that he has a vague recollection of trying to sell the project to Mrs. Bain—promoting it to her because it would be a good deal for her. He stated he wanted her to benefit from it. Gary Wenger was present when some of the work was being done on the terrace and pond.
Debtors' brief states: "Gary Wenger testified that he encouraged her [Mrs. Bain] to agree to the project and that she told him she intended to do so." Defs.' Brief at 21. The Court notes that this statement, regarding what Mrs. Bain told Gary Wenger she intended to do, does not appear in the record. A misstatement of the record also appears in Plaintiff's brief at page 8. The brief states: "Both Gary and Lora Bain testified that they were unaware of what was occurring regarding the encroachment, and only learned of it after the death of their mother." This is incorrect. Lora Bain did not testify at trial or otherwise on this issue.
Plaintiff presented testimony of Robert Petrzelka regarding the value of trees and shrubs which were removed from the Bain property when the pond was built. Mr. Petrzelka stated it would cost Plaintiff $4,500 to $4,800 to replant approximately 10 trees and 40 shrubs. On cross examination, he stated he did not see much commercial value, from photos, in the trees and shrubs as they existed on the Bain property prior to the pond being built or on adjacent land. The vegetation removed was mainly in a steep ravine and would not have been of high quality. This opinion was supported by testimony of other witnesses at the trial, including Gary Wenger and Irvin Leichty.
Testimony was offered concerning the value of the fence around Debtor's property at the time they built the pond and the terrace. Defendants' Exhibits CC, DD and EE indicate refencing of the North, East and West borders of Debtor's property would cost a total of $2,365. Plaintiff wishes to use the property surrounding Debtor's tract as pasture and needs to fence it to contain livestock.
The witnesses familiar with the state of the previous fence, Gary Wenger, Joe Hammen, and Harold Steele, the former owner of Debtors' property, all testified that the fence was in poor shape and ineffective for containing livestock at the time the pond was built. Harold Steele also testified that, through agreements with Mrs. Bain's husband, Ralph Bain, the previous fence was not placed on the lot lines because of the way the land dropped off in places. All of the previous fence around the lot was removed when Debtors built the pond and terrace.
Irvin Leichty, who constructed the dam and pond, testified that he pushed all the old fence onto the Bain property where it would help prevent erosion. He stated the fence was not good and was covered with brush. He also stated that no remarkable trees were removed for the pond construction. He estimated that he could remove the fence debris which was left on the Bain property for approximately $800. Mr. Leichty testified he thought Gary Wenger was the coordinator of the project for Mrs. Bain because he was the tenant of the adjoining property. He stated he would have had Gary Wenger's permission to put the remains of the old fence on the Bain property.
Plaintiff complains about some concrete and bricks on the Bain land behind the dam. Gary Bain testified he thought Debtors had debris from old buildings on their property which they deposited on the Bain property while the pond and dam were being built. Both Joe Hammen and Harold Steele testified that...
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First Nat'l Bank of Omaha v. O'Brien (In re O'Brien)
... ... This theory, if that is what FNBO is arguing, suffers from the same flaw as FNBO's other theoriesthe asserted fraud simply was not the proximate cause of its damages. 21 See Bain Estate v. Hammen (In re Hammen) , 399 B.R. 867, 877 (Bankr.S.D.Iowa 2009) (adopting the handwriting expert's conclusion that the allegedly forged signature was genuine, and finding that the signor therefore consented to the terms of the document); Am. Inv. Bank v. Clarke (In re Clarke) , No. 951053A, 1996 WL ... ...