Van Egmond v. Van Egmond, 20-1582

CourtCourt of Appeals of Iowa
Writing for the CourtGREER, Judge.
PartiesKELLI J. VAN EGMOND, Plaintiff-Appellee, v. ROSE VAN EGMOND; VAN EGMOND ENTERPRISES, LLC, Defendant-Appellant.
Docket Number20-1582
Decision Date18 August 2021

KELLI J. VAN EGMOND, Plaintiff-Appellee,


No. 20-1582

Court of Appeals of Iowa

August 18, 2021

Appeal from the Iowa District Court for Jasper County, Shawn Showers, Judge.

Rose Van Egmond appeals the grant of partial summary judgment against her.

Alison F. Kanne and Benjamin G. Arato of Wandro & Associates, PC, Des Moines, for appellant.

Dustin D. Hite and Nicole C. Steddom of Heslinga, Dixon & Hite, Oskaloosa, for appellee.

Considered by Vaitheswaran, P.J. and Greer and Schumacher, JJ.

GREER, Judge.

With family inheritance at the core of the dispute, Rose Van Egmond (Rose) challenges the partial summary judgment ruling requiring her to cooperate with the sale of her father's home to her niece, Kelli Van Egmond (Kelli).

Facts and Earlier Proceedings.

We begin with the death of Cor Van Egmond (Cor) in September 2012. Cor had nine children[1] living at the time of his death. Under his will, Cor gave his designated co-executors, Neal Van Egmond and John Van Egmond[2] (Co-executors), authority to sell his real estate holdings without the requirement of court approval. In July 2015, Kelli, the daughter of Neal, entered into a written contract with the Co-executors to purchase property in Oskaloosa, [3] which had been Cor's home (Home). Kelli agreed to pay $55, 000 under a purchase agreement for the Home. The purchase agreement was loosely drawn and granted Kelli possession of the property "to be specified at a later date." Likewise, there was no due date for when the purchase price was to be paid and the earnest money deposited was "rent $9 month As of July 1, 2015." Cor's estate closed in December 2015. The estate's final report indicated the Home was sold and conveyed, yet the estate apparently transferred the property individually to the eight siblings.[4] Kelli argues the transfers were still subject to the purchase agreement.

In June 2018, a limited liability company, known as Van Egmond Enterprises, LLC (the LLC), was established naming Cor's children as initial members, including Rose.[5] Three months later, the siblings, except for Rose, transferred their respective interests in the Home into the LLC pursuant to quitclaim deeds. The LLC owns an 8/9 share of the Home. Rose declined to transfer her share, thus she retains a 1/9 interest in the Home.

In January 2020, Kelli petitioned in equity against Rose and the LLC alleging that Rose, as a successor in interest, breached the written contract with the Co-executors. Alternatively, if the contract was not to be specifically performed, Kelli also raised a claim of unjust enrichment, asserting she made substantial improvements to the real estate. As a self-represented party, Rose answered with a general denial of all claims. The LLC answered, confirming it was "ready, willing and able, to the extent of its ownership interest, to perform the contract between [Kelli] and the [Co-executors]."

In August, Kelli moved for partial summary judgment, requesting that the court order the parties to perform the purchase contract and transfer all interest in the Home to Kelli. In an order setting the hearing for October 2, the district court noted, "Defendants shall file their responses on or before September 8, 2020." Rose filed no response and failed to attend the hearing. Without any resistance on file, the district court granted Kelli's partial motion for summary judgment, reasoning:

In the present case, the Co-executors entered into a valid contact for the sale of real estate which should be enforced The Last Will and Testament gave the authority to sell property, including real property, without court approval to the Co-executors. The Co-executors entered into a written contract for the sale of real estate for a set price to Kelli Van Egmond. The subject of the contract, being real estate is by its very nature unique. Given the uniqueness of the real estate, the court should use its discretion and direct the parties to specifically perform under the contract

The district court then ordered Rose and the LLC to perform under the purchase agreement and complete the sale of the Home to Kelli.

In November, Rose hired counsel. She then filed a motion to continue the November trial date on the unjust-enrichment and breach-of-contract counts of Kelli's petition. A motion for leave to amend answer followed along with a motion to enlarge the summary judgment ruling. To support her motion to enlarge, Rose filed an affidavit raising a number of issues with the sale.[6] By affidavit, Rose explained her dilemma and reasons for not responding to the summary judgment filings. She claimed she represented herself, was unaware of how the court's electronic filing system worked, and had technical issues with her email at the time the motion for partial summary judgment was filed. The district court ruled that Rose's motion to enlarge the summary judgment ruling was untimely and because she failed to respond to the motion for partial summary judgment, her motion was denied. Additionally, the motion to continue the November trial date was denied, but Kelli dismissed the remaining counts of her petition. Rose now appeals the rulings related to the partial motion for summary judgment and her motion to enlarge. We must decide if the partial summary judgment ruling should stand.

Standard of Review and Error Preservation.

We start by reviewing the district court's ruling on the partial summary judgment for correction of errors at law. Iowa Ass'n of Bus. & Indus. v. City of Waterloo, 961 N.W.2d 465, 470 (Iowa 2021). "Summary judgment is appropriate when the record shows no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Munger, Reinschmidt & Denne, L.L.P. v. Lienhard Plante, 940 N.W.2d 361, 365 (Iowa 2020) (citing Iowa R. Civ. P. 1.981(3)).

Rose postures she preserved error by filing a notice of appeal. A notice of appeal does not preserve error on an issue. See Thomas A. Mayes & Anuradha Vaitheswaran, Error Preservation in Civil Appeals in Iowa: Perspectives on Present Practice, 55 Drake L. Rev. 39, 48 (2006). On the other hand, Rose did move to enlarge the district court's partial summary...

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