Robert's River Rides, Inc. v. Steamboat Development Corp.

• Decision Date: 27 July 1994
• Docket Number: No. 93-710,93-710
• Citation: 520 N.W.2d 294
• Parties: ROBERT'S RIVER RIDES, INC., Appellant, v. STEAMBOAT DEVELOPMENT CORPORATION and City of Bettendorf, Appellees. CITY OF BETTENDORF, Appellee, v. STATE Of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 294

520 N.W.2d 294

ROBERT'S RIVER RIDES, INC., Appellant, v. STEAMBOAT DEVELOPMENT CORPORATION and City of Bettendorf, Appellees.

CITY OF BETTENDORF, Appellee, v. STATE Of Iowa, Appellee.

No. 93-710.

Supreme Court of Iowa.

July 27, 1994.

Rehearing Denied Sept. 21, 1994.

William Fuerste, Stephen J. Juergens and Gregg L. Owens of Fuerste, Carew, Coyle, Juergens & Sudmeier, P.C., Dubuque, for appellant.

Thomas D. Waterman of Lane & Waterman, Davenport, and Robert G. Ellis, Bettendorf, for appellees Steamboat Development Corp. and City of Bettendorf.

Bonnie J. Campbell, Atty. Gen., and Michael H. Smith, Asst. Atty. Gen., for appellee State.

Considered by McGIVERIN, C.J., and CARTER, LAVORATO, NEUMAN, and ANDREASEN, JJ.

ANDREASEN, Justice.

This appeal involves a dispute over a lease for a portion of the bed of the Mississippi River. An excursion boat operator brought this action against a municipality and a competing operator claiming damages for interference with its leasehold interest. The district court granted defendants' motion for summary judgment dismissing plaintiff's claims of trespass, conspiracy, conversion, implied contract, intentional interference with contract, and defamation. We affirm.

I. Background and Factual Proceedings.

Robert's River Rides, Inc. (Roberts) operated passenger excursion boats on the Mississippi from Leach Park in Bettendorf, Iowa between May 1984 and December 1990. Leach Park abuts the river for approximately 1500 feet and includes a public boat ramp. Roberts leased 200 feet of the waterfront park for its docking and parking facilities from defendant city of Bettendorf (City). Their lease was on an oral, month-to-month basis until a written lease was executed in September 1988. Roberts' lease with the City expired on December 30, 1990.

Before commencing riverboat excursions Roberts applied for and obtained necessary construction permits from several state and federal agencies. Roberts then began work in the riverbed and along the shore installing a sanitary sewer and water system and "deadman" anchoring devices. Later Roberts added two other barges and mooring devices to accommodate a ticket office and a gift shop at the docking facilities.

Pursuant to rules and regulations of the Iowa State Conservation Commission and its successor the Iowa Department of Natural Resources (collectively DNR), Roberts also obtained a lease to use a portion of the riverbed adjacent to Leach Park from the Iowa Executive Council (Council). The original DNR lease was issued in June 1984 for five years. It provided:

A parcel of river bed approximately 300 [feet] of frontage by 100 [feet] of depth at Mississippi River Mile 485.5. The area is for barges permanently moored adjacent to property owned by the City of Bettendorf. The barges are used to accommodate excursion boats, a gift shop, and a ticket office, as shown on the attached plat.

Attached to the lease was a drawing of the area showing the City as the owner of the adjacent property. The lease further stated that it

shall not be construed to give the Tenant exclusive use of the land and water of the property above described, to the exclusion of the general public. The right to enter upon the property leased for any lawful purpose is hereby specifically reserved to the public of the state of Iowa.

In February 1989, Roberts requested and obtained a renewal on its riverbed lease. The second lease was issued in April and also covered a five-year period requiring annual rental payments. On the lease application Roberts indicated the use of the area would remain the same as the last five years and that no structures would be added or modified. The same area map was attached to the application. Roberts did not indicate on the application that its lease with the City expired at the end of 1990.

Following the 1989 authorization of excursion boat gambling in Iowa, see 1989 Iowa Acts ch. 67 (now codified at Iowa Code ch. 99F (1991)), Roberts and defendant Steamboat Development Corporation (Steamboat) submitted bids for the right to operate a riverboat casino from Leach Park. The City and the Riverbend Regional Authority selected Steamboat to operate riverboat gambling excursions and executed a lease for the river front area in February 1990. Initially Steamboat planned to use the Leach Park site until new docking facilities were constructed upstream. As a result of its agreement with Steamboat the City refused to renew Roberts' lease for the river front property. The City instructed Roberts to remove its boat, barges, and improvements by March 10, 1991. Roberts removed its boat and the barges, but left the improvements in place.

Steamboat began construction on docking improvements for its riverboat operations in late March 1991. While attempting to sort out problems with Steamboat's construction and operating permits, the City discovered that Roberts' lease with DNR of the riverbed area extended until April 1994. Roberts apparently offered to assign its lease rights at one point, but the City refused to pay the requested compensation. Later the City and Steamboat jointly executed a DNR lease application for the riverbed area. City Attorney Greg Jager explained that Roberts was no longer using the leased riverbed because its lease of the river front property had expired.

In response, Michael Carrier, an administrator of the Parks, Recreation & Preserves Division of the DNR explained that Roberts' permits "either need to be canceled or assigned to the City of Bettendorf." Jager then requested that Roberts' lease be terminated based on certain alleged misrepresentations Roberts made on its application for renewal concerning the status of the City's property. Roberts disputes that there were any misrepresentations on the application form.

Carrier, on behalf of the DNR staff, recommended that the Natural Resource Commission (Commission) approve termination of the lease "based on the fact that Roberts no longer had control of the riparian frontage adjoining the leased riverbed and had removed its excursion boat and barge from the area." Carrier also offered to refund the 1991 lease payment. The Commission approved the staff's recommendation over Roberts' objection and threat of legal action. Before the matter was presented to the Council in September, the Attorney General's office asked the City to indemnify the State from any liability resulting from termination of the lease. The City refused to make such an agreement. Ultimately the Council voted not to terminate Roberts' lease.

Steamboat, however, continued to occupy the Leach Park docking area and operated riverboat gambling excursions from April 1991 to July 1992. During this period Roberts' attorney contacted counsel for Steamboat and the City several times claiming they were trespassing on its leasehold property. At no time after March 1991 did Roberts attempt to dock its boats at Leach Park. On April 7, 1992, Roberts filed suit against Steamboat and the City. In its amended and substituted petition Roberts raised claims of trespass, conversion, conspiracy to trespass and to convert property, implied contract, interference with contract, and slander and libel. Defendants filed answers and the City counterclaimed against Roberts asserting conversion, material misrepresentation, and conspiracy. The City also filed a third-party petition against the State of Iowa (State) claiming an unconstitutional taking of its riparian rights.

Subsequently Steamboat and the City filed a motion for summary judgment on all claims. The State joined their motion and also moved for summary judgment on the City's third-party claim. Roberts moved for a partial summary judgment on its claims of trespass, conspiracy, and defamation.

Following a hearing on the motions, the district court denied Roberts' motion, granted summary judgment in favor of the defendants and overruled the State's motion as moot. The court concluded that (1) the DNR lease did not grant Roberts exclusive use of the riverbed adjacent to the City's park absent an ability to perform the conditions of the lease; (2) civil conspiracy is not actionable without a valid underlying claim; (3) Roberts failed to produce evidence to support its claims under theories of quasi-contract or interference with contract; and (4) defendants' communications concerning Roberts were substantially true. Roberts appeals from the court's ruling and judgment.

On appeal Roberts contends that summary judgment was improper because (1) the riverbed lease was not dependent on the river front lease; (2) the lease entitled Roberts to exclusive use of the area as against all other commercial ventures; (3) Roberts did not abandon the leasehold; (4) a trespasser is liable for benefits received from the wrongful occupation and use of property, and in any event fact issues remain concerning Roberts' damages; (5) actual breach of the lease is not a required element of an interference claim; and (6) the City's allegations of misrepresentation were not substantially true or privileged. We will discuss additional facts as necessary.

II. Scope of Review.

Our review of the court's summary judgment ruling is well settled. See Iowa R.Civ.P. 237(c). We first determine whether, under the entire record, any genuine issues of material fact exist. "If there are none, then we determine whether the trial court correctly decided that the moving party is entitled to judgment as a matter of law." Hoefer v. Wisconsin Educ. Ass'n Ins. Trust, 470 N.W.2d 336, 338 (Iowa 1991); accord Ottumwa Hous. Auth. v. State Farm Fire & Casualty Co., 495 N.W.2d 723, 726 (Iowa 1993). We view the evidence in the light most favorable to the resisting party. Hoefer, 470 N.W.2d at 338.

Although intentional torts "are generally poor candidates for summary judgment because of the subjective nature of motive and intent ..., the rule is not absolute...." Id. The party resisting summary judgment "must set...