Van Egmond v. Van Egmond

Decision Date18 August 2021
Docket NumberNo. 20-1582,20-1582
Citation966 N.W.2d 143 (Table)
Parties Kelli J. VAN EGMOND, Plaintiff-Appellee, v. Rose VAN EGMOND; Van Egmond Enterprises, LLC, Defendant-Appellant.
CourtIowa Court of Appeals

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 children1 living at the time of his death.Under his will, Cor gave his designated co-executors, Neal Van Egmond and John Van Egmond2(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.4Kelli 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.5Three 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.6By 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(Iowa2021)."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(Iowa2020)(citingIowa 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.SeeThomas A. Mayes & Anuradha Vaitheswaran, Error Preservation in Civil Appeals in Iowa: Perspectives on Present Practice , 55 DrakeL. Rev. 39, 48(2006).On the other hand, Rose did move to enlarge the district court's partial summary judgment ruling, and the district court ruled on her motion, finding it untimely.SeeMeier v. Senecaut , 641 N.W.2d 532, 537(Iowa2002)(noting to raise an issue on appeal, the party had to file a motion requesting a ruling on the issue to preserve error).

Analysis.

At its core, Rose points to Kelli's failure to prove she is entitled to partial summary judgment because there are important disputed facts that prohibit a summary ruling.Now, after the summary judgment ruling, Rose asserts the requirements of the purchase agreement were not met because Kelli was not "ready, willing and able to complete [her] obligations" under the contract even though Kelli signed an affidavit stating she was.A nonmoving party to a summary judgment motion can sit by and assert the movant failed to show entitlement to a summary judgment.SeeWillis v. City of Des Moines , 357 N.W.2d 567, 572(Iowa1984)("Unless [she] elects to stand on the weakness of [her] opponent's case to successfully resist such motion, the resisting party must set forth specific evidentiary facts showing the existence of a genuine issue of material fact.").

This proved to be an unsuccessful strategy for Rose.Likewise, "an adverse party may not rest upon mere allegations or denials" in her pleadings, but the response, by affidavits or as otherwise provided in Iowa Rule of Civil Procedure 1.981(5), "must set forth specific facts showing that there is a genuine issue for trial."Hollingsworth v. Schminkey , 553 N.W.2d 591, 594(Iowa1996).If the adverse party does not respond, summary judgment, if appropriate, shall be entered.Iowa R. Civ. P. 1.981(5);see alsoDrainage Dist. No. 119 v. Inc. City of Spencer , 268 N.W.2d 493, 499(Iowa1978)("The purpose of summary judgment is to enable a judgment to be obtained promptly and without the expense of a trial when there is no genuine and material fact issue present.").

We cannot evaluate the case of a self-represented party with a different standard or rules than one with counsel, so we do not excuse Rose for ignoring the summary judgment proceedings.SeeMetro. Jacobson Dev. Venture v. Bd. of Rev. of Des Moines , 476 N.W.2d 726, 729(Iowa Ct. App.1991)("We do not utilize a deferential standard when persons choose to represent themselves.The law does not judge by two standards, one for lawyers and the other for lay persons.Rather, all are expected to act with equal competence.").Here, Rose elected to stand by and argue, after the adverse ruling, that Kelli failed to meet her burden.

Still, to obtain a summary judgment, Kelli had hurdles to climb.First, she had to show that there is no genuine issue as to any material fact concerning the matters addressed in her motion for summary judgment.Second, she needed to establish she was entitled to judgment as a matter of law.Iowa R. Civ. P. 1.981(3);Red Giant Oil Co. v. Lawlor , 528 N.W.2d 524, 528(Iowa1995);Drainage Dist. No. 119 , 268 N.W.2d at 499;Vaughn v. City of Cedar Rapids , 527 N.W.2d 411, 412(Iowa Ct. App.1994).We find Kelli met her burden.She produced a valid contract and an affidavit that she was ready to perform its terms but for the behavior of Rose.All of that was undisputed in the partial summary judgment record.

The time to come forward is when the resistance is required to be filed and the hearing on the motion is held, not some time in the distant future.Still, Rose asserts the purchase agreement required Kelli to obtain financing.While this is true, Kelli is not required to do so by any specific date under the purchase agreement's terms, but only upon closing, which again was undefined.Instead, much of the discussion by Rose on appeal relates to a memo from the abstractor to Kelli addressing Kelli's unpaid abstracting bill.First, this memo was offered as disputed evidence by Rose after the summary judgment ruling.Second, although Rose argues the...

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