Suss v. Schammel

Decision Date16 October 1985
Docket NumberNo. 84-566,84-566
PartiesBonnie G. SUSS, Appellant, v. Marjorie M. SCHAMMEL, Ruth A. Cahill, Paul R. Suss, Mary Jane Isaacson, and James A. Suss, Appellees.
CourtIowa Supreme Court

Harold W. White of Fitzgibbons Brothers, Estherville, for appellant.

Joseph L. Hanson, Emmetsburg, for appellees.

Considered by HARRIS, P.J., and McCORMICK, LARSON, CARTER, and WOLLE, JJ.

HARRIS, Justice.

This controversy arose after a farm was sold by its owner to one of his sons. Both the buyer and seller are deceased and the dispute is between the father's other children and the son's widow. On the widow's petition the trial court directed completion of the sale and conveyance of title. Defendants' cross-appeal is from that determination. The widow's additional claims for actual and punitive damages were allowed by a jury but were set aside on defendants' post-trial motion. That ruling is the subject of plaintiff's appeal. We affirm on both appeals.

Howard J. Suss, plaintiff's husband, died intestate on May 22, 1969, survived by plaintiff and their two sons, Scotty Joe Suss and Toddy Gene Suss. Howard was the contract purchaser of the 160 acres of land in Palo Alto County. His father, who sold him the farm, was Theodore J. Suss. Howard's interest in the contract passed to plaintiff as his surviving spouse and she continued to make annual payments to Theodore J. Suss until Theodore's death in 1972.

When Theodore died, his vendor's interest in the contract passed by will to Theodore R. Suss (another of Theodore J.'s sons), Scotty Joe, Toddy Gene, and to defendants. Defendants are Theodore J. Suss' remaining children. Plaintiff's sons each received a 1/14th interest in the contract while the others received a 1/7th interest. Plaintiff then made the payments through her attorney to the holders of the vendors' interest. In December of 1977, plaintiff claimed she made the final payment on the contract and expected to receive a warranty deed.

Defendants dispute that plaintiff did in fact tender the final payment. Dorothy I. Suss, widow of Theodore R. Suss, conveyed to plaintiff the 1/7th interest Dorothy inherited from her husband. Scotty and Toddy also conveyed their interests to plaintiff. Defendants, however, refused to convey their interests despite plaintiff's repeated demands. Plaintiff then brought this suit.

In count I of her petition, plaintiff sought specific performance, alleging she had fulfilled all her obligations under the contract. In count II, she sought $10,000 compensatory damages for "mental anguish and humiliation" she claims to have suffered because of defendants' failure to convey their interests. She also sought $10,000 in punitive damages, alleging "defendants' refusal to perform ... was done with malice ... and was done with the intention to harass and harm" her.

Count I of plaintiff's petition was resolved prior to trial by a ruling which sustained plaintiff's motion for partial summary judgment. The trial court granted plaintiff's motion and ordered defendants to convey their interests by warranty deed upon plaintiff's final payment. When defendants failed to do so the property was conveyed to plaintiff pursuant to a commissioner's deed. See Iowa Code section 624.29 (1985). Count II of plaintiff's petition was later separately tried before a jury. The jury awarded $2,487.55 in attorney fees and $5,000 in punitive damages. No compensatory damages were awarded.

Defendants filed a motion for judgment notwithstanding the verdict. The trial court granted the motion, finding "insufficient evidence of malice, either actual or legal" to support the award of punitive damages. The court likewise disallowed the attorney fees because "attorney's fees under the common law ... should be allowed only in those extraordinary situations where they are appropriate."

I. Although it is presented by way of cross-appeal, it seems appropriate to first review the trial court's ruling which granted plaintiff's motion for partial summary judgment on her claim under count I. As a preliminary matter we reject plaintiff's contention that we lack jurisdiction because the cross-appeal was untimely.

According to plaintiff the challenged ruling was final, not interlocutory, so that under rule of appellate procedure 5 notice of appeal should have been (though it was not) filed within thirty days. See McGuire v. City of Cedar Rapids, 189 N.W.2d 592, 596-98 (Iowa 1971). Plaintiff's contention is without merit. An order adjudicating only part of the petition against a particular defendant is interlocutory, not final. See Shoemaker v. City of Muscatine, 275 N.W.2d 206, 208 (Iowa 1979). Because the partial summary judgment was interlocutory and because the cross-appeal was taken within the period specified for cross-appeals under rule 5(a), the notice of cross-appeal was timely.

In reviewing the grant of summary judgment under rule of civil procedure 237(c) the question is whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. Brown v. Monticello State Bank of Monticello, 360 N.W.2d 81, 83-84 (Iowa 1984). It can be fatal to the party resisting the summary judgment motion to rely alone on a perceived weakness in the movant's contention. The resisting party "must set forth specific facts showing there is a genuine issue for trial." Iowa Civil Rights Commission v. Massey-Ferguson, Inc., 207 N.W.2d 5, 8 (Iowa 1973).

On this review we can and do ignore certain contentions because they are unaccompanied by any citation of authority as required under rule of appellate procedure 14(a)(3). A failure to cite authorities can result in a waiver of the issue. Miller v International Harvester Co., 246 N.W.2d 298, 304 (Iowa 1976). We frequently find an issue has thus been waived. See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 184 (Iowa 1980); Inghram v. Dairyland Mutual Insurance Co., 215 N.W.2d 239, 240 (Iowa 1974).

On the present assignment we accordingly consider only the issue for which authorities are cited, the contention that a material issue of fact existed on the question of tender and demand.

As we understand their argument, defendants do not deny tender and demand were made but question the circumstances. Defendants seem to challenge plaintiff's decision to turn the matter over to her attorney. We do not think this decision detracted from plaintiff's tender and demand. Plaintiff testified she

went to Fitzgibbons office with the money and they told me that I should not make the last payment until they gave--the Suss' gave me the deed and abstract; and so therefore the check was left there and there was communication back and forth, as I understand it, between Suss' and my attorneys, and as best I know there was nothing that ever came back from the Suss'.

In resisting plaintiff's showing, defendants raise only conclusory allegations, most of which are not even relevant to the case. See Schulte v. Mauer, 219 N.W.2d 496, 501 (Iowa 1974) ("defendants' pleadings, resistance to plaintiffs' summary judgment motion, affidavits, and other relevant documents stand...

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