Suss v. Schammel, No. 84-566

CourtUnited States State Supreme Court of Iowa
Writing for the CourtHARRIS
Citation375 N.W.2d 252
Docket NumberNo. 84-566
Decision Date16 October 1985
PartiesBonnie G. SUSS, Appellant, v. Marjorie M. SCHAMMEL, Ruth A. Cahill, Paul R. Suss, Mary Jane Isaacson, and James A. Suss, Appellees.

Page 252

375 N.W.2d 252
Bonnie G. SUSS, Appellant,
v.
Marjorie M. SCHAMMEL, Ruth A. Cahill, Paul R. Suss, Mary Jane Isaacson, and James A. Suss, Appellees.
No. 84-566.
Supreme Court of Iowa.
Oct. 16, 1985.
Rehearing Denied Nov. 14, 1985.

Page 253

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

Page 254

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...

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53 practice notes
  • Tucker v. Marcus, No. 86-2256
    • United States
    • United States State Supreme Court of Wisconsin
    • February 11, 1988
    ...damages may suffice, "Some actual damage award is required as a precondition to a punitive damage award...."). Contra Suss v. Schammel, 375 N.W.2d 252, 255 (Iowa 1985); Emerson v. Garner, 732 S.W.2d 613 (Tenn.Ct.App.1987) (punitive damages cannot be awarded absent award of compensatory dama......
  • Chadima v. National Fidelity Life Ins. Co., No. 3-90-CV-30058.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • March 25, 1994
    ...award. Hockenberg Equip. Co., 510 N.W.2d at 158. This rule, and its exception, is stated by the Iowa Supreme Court in Suss v. Schammel, 375 N.W.2d 252, 256 (Iowa 1985), as Attorney fees are generally not recoverable as damages in the absence of a statute or a provision in a written contract......
  • Pulla v. Amoco Oil Co., No. 4-91-CV-90085.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • November 9, 1994
    ...510 N.W.2d at 156; Ryan, 422 N.W.2d at 496; Sundholm v. City of Bettendorf, 389 N.W.2d 849, 853 (Iowa 1986); Suss v. Schammel, 375 N.W.2d 252, 255 (Iowa 1985); Westway Trading Corp. v. River Terminal Corp., 314 N.W.2d 398, 404 (Iowa 1982). Punitive damages would be allowable under state law......
  • St. Luke Evangelical Lutheran Church, Inc. v. Smith, No. 44
    • United States
    • Court of Appeals of Maryland
    • September 1, 1988
    ...willful conduct to merit punitive damages, attorneys fees were awarded to prevailing party in replevin action). 8 Suss v. Schammel, 375 N.W.2d 252 (Iowa 1985) (where willful and wanton behavior of defendant merits punitive damages, attorney's fees are appropriate); Villella v. Waikem Motors......
  • Request a trial to view additional results
53 cases
  • Tucker v. Marcus, No. 86-2256
    • United States
    • United States State Supreme Court of Wisconsin
    • February 11, 1988
    ...damages may suffice, "Some actual damage award is required as a precondition to a punitive damage award...."). Contra Suss v. Schammel, 375 N.W.2d 252, 255 (Iowa 1985); Emerson v. Garner, 732 S.W.2d 613 (Tenn.Ct.App.1987) (punitive damages cannot be awarded absent award of compensatory dama......
  • Chadima v. National Fidelity Life Ins. Co., No. 3-90-CV-30058.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • March 25, 1994
    ...award. Hockenberg Equip. Co., 510 N.W.2d at 158. This rule, and its exception, is stated by the Iowa Supreme Court in Suss v. Schammel, 375 N.W.2d 252, 256 (Iowa 1985), as Attorney fees are generally not recoverable as damages in the absence of a statute or a provision in a written contract......
  • Pulla v. Amoco Oil Co., No. 4-91-CV-90085.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • November 9, 1994
    ...510 N.W.2d at 156; Ryan, 422 N.W.2d at 496; Sundholm v. City of Bettendorf, 389 N.W.2d 849, 853 (Iowa 1986); Suss v. Schammel, 375 N.W.2d 252, 255 (Iowa 1985); Westway Trading Corp. v. River Terminal Corp., 314 N.W.2d 398, 404 (Iowa 1982). Punitive damages would be allowable under state law......
  • St. Luke Evangelical Lutheran Church, Inc. v. Smith, No. 44
    • United States
    • Court of Appeals of Maryland
    • September 1, 1988
    ...willful conduct to merit punitive damages, attorneys fees were awarded to prevailing party in replevin action). 8 Suss v. Schammel, 375 N.W.2d 252 (Iowa 1985) (where willful and wanton behavior of defendant merits punitive damages, attorney's fees are appropriate); Villella v. Waikem Motors......
  • Request a trial to view additional results

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