Podraza v. City of Carter Lake, 93-885

• Decision Date: 23 November 1994
• Docket Number: No. 93-885,93-885
• Citation: 524 N.W.2d 198
• Parties: Arlynda PODRAZA, Appellee, v. The CITY OF CARTER LAKE, An Iowa Municipality, and Gerald Waltrip, As Mayor of the City of Carter Lake, Appellants.
• Court: Iowa Supreme Court

Page 198

524 N.W.2d 198

Arlynda PODRAZA, Appellee, v. The CITY OF CARTER LAKE, An Iowa Municipality, and Gerald Waltrip, As Mayor of the City of Carter Lake, Appellants.

No. 93-885.

Supreme Court of Iowa.

Nov. 23, 1994.

Michael J. O'Bradovich, Council Bluffs, for appellants.

Drew H. Kouris, Council Bluffs, for appellee.

Considered by HARRIS, P.J., and LARSON, CARTER, SNELL, and ANDREASEN, JJ.

SNELL, Justice.

This is an appeal from a jury verdict awarding damages to plaintiff Arlynda Podraza for wrongful removal of her privacy fence. Compensatory damages were awarded against the City of Carter Lake and compensatory and punitive damages against Gerald Waltrip. We affirm.

I. Factual Background

In October of 1989, Podraza purchased a home located within the bounds of the Carter Lake Club in Carter Lake, Iowa. At the time she purchased the residence, a chain-link fence surrounded it. The fence had been present at the location for at least thirty years and was in need of repair. Although Podraza believed the fence stood within the boundaries of her property, she was aware the fence was located on a city right-of-way which ran from the edge of a nearby boardwalk into her property for nine and one-half feet. The fence stood about one foot from the boardwalk.

Podraza decided to replace the old fence with a wooden privacy fence in part because she owned several large dogs and was concerned about children sticking their fingers through the chain links. Before beginning the new fence, Podraza obtained an application at the Carter Lake City Hall for permission to build a six-foot privacy fence. After a hearing on the matter, the board of adjustment unanimously approved the application. Podraza subsequently paid a fee and received a signed and stamped permit to build the fence.

She began construction of the new wood fence on April 7, 1990 and continued work on it the next day. Unable to finish the fence on April 8, Podraza and her workers decided to continue work during the weekend of April 21 and 22. Podraza estimated that the fence was two-thirds completed at the end of April 8.

On April 17, a Carter Lake police officer went to Podraza's home and delivered to her a letter from the Mayor of Carter Lake, Gerald Waltrip. The letter ordered her to cease construction on the fence because the board of adjustment had erred in granting her the permit to erect it. At trial, Podraza testified that she believed Waltrip did not like her since he was a friend of her ex-husband and former mother-in-law.

In response to the mayor's action, Podraza attended a meeting of the Carter Lake City Council to request approval of a variance. At the April 25, 1990 meeting of the city council, the members reached a tie vote on the matter of Podraza's variance. She attended a subsequent May 9, 1990 meeting, and in this session, the council approved the variance by a vote of four to one.

Waltrip vetoed this city council resolution and a number of other resolutions which the council passed in favor of fences in the area. Waltrip then established a committee to study the fence situation in the country club area. Podraza testified that her former mother-in-law was one of the members of this committee and Podraza believed this adversely affected her chances of gaining approval from the committee.

On October 10, 1990, the committee reported that it would not approve Podraza's fence. The city council acted in accordance with the committee's decision and failed to approve the fence on this occasion but informed Podraza that she could have it if she placed it back on her own property. However, Waltrip vetoed the council's allowance of the fence even on Podraza's own property and the council subsequently sustained the veto.

In January of 1991, the City of Carter Lake passed an ordinance which stated that all existing fences could remain but required that any party seeking to build a new fence on any utility right-of-way or in the boardwalk area obtain permission from the city council. Podraza believed that this ordinance sanctioned the existence of her new fence, so she proceeded to complete it in July of 1991.

After learning of Podraza's activities, Waltrip telephoned her and told her that she was forbidden from having the fence. Shortly thereafter, city workers and police arrived at the scene intending to pull down the fence. The city workers brought a backhoe, truck, and at least one shovel which they intended to use to tear down the fence. Podraza testified that the chief of police, who she believed disliked her, informed her that neither the police nor any of the city workers brought any documents with them because such documents were not necessary.

Podraza stood in front of the fence, blocking the city workers, and the police informed her that if she continued to interfere, they would arrest her. Podraza testified that the police threatened to shoot her dogs if they got loose when the workers tore down the fence. While her cousin and brother stood between the workers and the fence, she went into her home and called a local television station and her attorney. This confrontation came to a peaceful end after Podraza's attorney and the city attorney spoke to each other and agreed to meet and consider the situation.

Podraza's attorney subsequently informed her that he and Waltrip had reached an agreement. Under this agreement, Waltrip stated that he would not interfere with Podraza's efforts if she could get two-thirds of her neighbors to sign a petition approving her fence and if she thereafter obtained approval from the board of adjustment. The agreement further required her to present the petition to the city council for consideration. Podraza testified that she was able to get substantially all of her neighbors to sign the petition. Her former mother-in-law, also a neighbor, was one individual who refused to sign.

After Podraza had acquired the signatures, Waltrip decided he would not honor the agreement because Podraza had had young children pass the petition from door to door. Waltrip felt he could ignore the agreement because he believed that its terms required that Podraza personally pass the petition around the neighborhood.

Despite Podraza's petition, Waltrip told city workers to go to her home and remove the fence. He also told the chief of police to go along to maintain law and order. On August 21, 1991 a city worker came to Podraza's door and informed her that under the authority of the city, he and a crew would begin tearing down the fence in one hour. The workers began tearing down the fence and Podraza attempted to stop them but the police officer told her that he would arrest her if she interfered. The workers proceeded to tear down the west side of the fence. After cutting down the fence with a chain saw, the workers took the torn-down portion, other than the gate, to a city impound lot. Podraza testified that neither the police nor the workers carried any documentation when they tore the fence into several sections, and the chief of police appeared to be in charge of the operation.

In February 1992, without notice to Podraza, city workers returned with the wood sections now disassembled and dumped them onto her yard. The wood pieces were by then warped and some of the pieces had termites in them.

After the city tore down her fence, Podraza again went to the city council and it voted four to one in favor of allowing her to have her fence. Podraza testified that after this vote, Waltrip informed her he would not veto the council's resolution if she got the board of adjustment's approval. She subsequently attended a board of adjustment meeting in November of 1991 but the board denied her request by a vote of three to zero.

Podraza appealed the board of adjustment's decision to the Pottawattamie County District Court. The court ruled she could build a four-foot fence on property subject to a public easement and a six-foot fence on the rest of her property.

Podraza testified that she was so distraught over the situation with her fence that her family kept tabs on her. The problem with the city caused marital problems and her husband moved out. She put her Akita dog of fourteen years to sleep due to the lack of a fence. She gave the four other dogs she had on the property for five years to her parents who live in western Nebraska.

Podraza testified that she was intimidated by the police as a result of their threats to arrest her and by their comments about handcuffing her. The police told her they would shoot her dogs if they came at them, statements that were made in front of her children. Podraza also testified that Mayor Waltrip gave her an obscene gesture while driving his car past her on a public street and on another occasion threatened her by tailgating her car.

Podraza brought this action in the district court against the City of Carter Lake and Waltrip arguing that the removal of the fence was wrongful because: (1) it violated her civil rights guaranteed by 42 U.S.C. section 1983 (1993); (2) it amounted to conversion; and (3) it amounted to trespass. Following a trial, the jury returned a verdict in favor of Podraza on all grounds for recovery. At the close of all the evidence, Waltrip and Carter Lake moved for a directed verdict. The district court denied the motion and entered judgment in accordance with the jury's verdict.

Judgment was entered in favor of Podraza against the City of Carter Lake and Gerald Waltrip, jointly and severally, in the amount of $7000 for emotional distress with interest at ten percent per annum from February 14, 1992. Judgment was also entered in favor of Podraza against the City of Carter Lake and Gerald Waltrip, jointly and severally, in the amount of $1,938.69 actual damages for destruction of plaintiff's fence with interest at ten percent per annum from February 14, 1992. The court further entered judgment in Podraza's favor against Gerald Waltrip in the amount of...