V.W. ENTERPRISES, INC., BRYAN WHIPP, and LORI VEACH, Plaintiffs-Appellants, ROBERT PHILLIPS and TERRY PHILLIPS, Intervenors-Plaintiffs, vs. CITY OF CLARINDA, an Iowa Municipal Corporation, FRANK SNYDER, US BANK, N.A., As receiver, and SCOTT TRACY, Husband and Wife, Jointly and Severally, Defendants-Appellees.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 6-092 / 05-1051
Filed October 11, 2006
V.W. ENTERPRISES, INC., BRYAN WHIPP,
and LORI VEACH,
Plaintiffs-Appellants,
ROBERT PHILLIPS and
TERRY PHILLIPS,
Intervenors-Plaintiffs,
vs.
CITY OF CLARINDA, an Iowa
Municipal Corporation, FRANK
SNYDER, US BANK, N.A., As
receiver, and SCOTT TRACY,
Husband and Wife, Jointly
and Severally,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Page County, Charles L. Smith,
and Jeffrey L. Larson, Judges.
V.W. Enterprises, Inc., Brian Whipp, and Lori Veach appeal from the
district court’s grant of the City of Clarinda’s first and second motions for
summary judgment and the grant of U.S. Bank’s motion for summary judgment.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Theodore F. Sporer of Sporer & Ilic, P.C., Des Moines, for appellant.
Robert Phillips, Maryville, Missouri, pro se.
2
Kristopher K. Madsen and Robert M. Livingston of Stuart, Tinley, Peters,
Thorn, Hughes, Faust & Madsen, Council Bluffs, for appellees City of Clarinda
and Frank Snyder.
Randy V. Hefner and Mathew J. Hemphill, Adel, for appellee U.S. Bank,
N.A.
Heard by Vaitheswaran, P.J, Eisenhauer, J. and Brown, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
3
BROWN, S.J.
We filed an opinion in this case on June 14, 2006. U.S. Bank filed a
petition for rehearing which we granted. Our June 14, 2006 unpublished opinion
has been withdrawn. The issues raised in the rehearing petition are our grant of
relief to the intervener plaintiffs, Robert Phillips and Terry Phillips, and a request
that we determine whether V.W. Enterprises may pursue its claims against U.S.
Bank individually as well as its claims against the bank as receiver. We have
now considered the arguments of the parties submitted in support of and in
opposition to the issues presented in the petition for rehearing.
The district court granted the first and second summary judgment motions
of the defendant, City of Clarinda, and U.S. Bank’s motion to dismiss as well as
its summary judgment motion.
The plaintiff property owners appeal those
rulings. We affirm in part, reverse in part, and remand.
I.
Background Facts & Proceedings.
Bryan Whipp and Lori Veach are co-owners of V.W. Enterprises, Inc. 1
V.W. Enterprises owned a building located at 119 East Main Street in Clarinda,
Iowa. Whipp and Veach operated a Breadeaux Pizza restaurant at this location.
Scott and Robin Tracy owned the adjoining building located at 117 East Main
Street, and it shared a common wall with the V.W. Enterprises’ property. The
Tracys purchased the building from Robert and Terri Phillips, the intervener
plaintiffs. The Phillips hold a second mortgage on the building payable by the
Tracys. The Tracys had abandoned this property by January 2003.
1
Unless otherwise indicated, we will refer to Whip, Veatch, and V.W. Enterprises
collectively as V.W. Enterprises.
4
In mid-January, Whipp and Veach noticed that water was entering their
business via the common wall shared with 117 East Main Street. On January 21,
2003, U.S. Bank filed an action to foreclose its mortgage on 117 East Main
Street, and an employee of U.S. Bank was appointed receiver of 117 East Main
Street. 2 In the order appointing receiver, the court found that 117 East Main
Street was abandoned, was in danger of being destroyed as a result of
abandonment, and the receivership was established to protect the real estate.
In mid-February of 2003, Whipp contacted the city manager of Clarinda,
Gray Walter, and complained about the abandoned building, informing Walter
that water was coming into his building and told Walter that the smell was having
harmful effects on his business. On March 4, 2003, Whipp again told Walter
about the deteriorating conditions of 117 East Main Street and its harmful effects
on his building.
At this point, V.W. Enterprises’ building was infused with a
permanent moldy smell.
Around March 12, 2003, Whipp contacted the city
attorney for Clarinda and informed him about the condition of the building and
requested that something be done. Again, on April 2, 2003, Whipp contacted
Walter and at the end of April, Whipp complained to the mayor, Frank Snyder.
Whipp and Walter inspected 117 East Main and found that the floors were bowed
and water was seeping out of the front door of the building. The basement had
standing water and a strong moldy smell permeated the building. Walter and
Whipp heard the sound of running water and saw that water was leaking through
2
All parties have treated U.S. Bank as the receiver, not its employee, and we will
consider U.S. Bank as the receiver in this opinion.
5
a cracked regulator on the water line. The water had not been shut off to the
building.
Whipp requested the water be shut off to the building in the first days of
May of 2003. On May 15, 2003, the city health officer, Dr. Keuhn, was made
aware of the conditions of the building. In a letter he drafted to the City, he
requested immediate action be taken to minimize health risks. On May 19, 2003,
the water was shut off to 117 East Main Street.
On May 21, 2003, U.S. Bank filed an application for discharge of the
receiver. In the application, the receiver indicated that an estimate for repairing
the roof had been obtained and U.S. Bank was unwilling to expend the funds to
fix the roof because that would result in a loss to U.S. Bank. Therefore U.S.
Bank requested it be discharged as receiver.
On July 14, 2003, the court
granted U.S. Bank’s application for discharge and required the City of Clarinda to
propose a replacement receiver.
On August 1, 2003, the City began cleaning out the building by tearing out
carpet and rotten interior fixtures. In early November, Veach became sick with bilateral pneumonia allegedly as a result of her exposure to the mold. Whipp and
Veach officially closed Breadeaux Pizza on November 13, 2003.
On August 4, 2003, V.W. Enterprises filed a petition against the City of
Clarinda, U.S. Bank, and the Tracys alleging negligence, nuisance, dangerous
premises, trespass, and inverse condemnation of their property at 119 East Main
Street. U.S. Bank filed a motion to dismiss arguing that the petition incorrectly
alleged negligence against the receiver in its individual capacity. The motion to
6
dismiss, resisted by V.W. Enterprises, was granted. V.W. Enterprises filed an
amended petition asserting claims against U.S. Bank in its receivership capacity.
The City filed a motion for summary judgment claiming immunity under
Iowa Code section 670.4(10) (2003). V.W. Enterprises resisted the motion and
filed a motion for leave to amend the petition adding intentional interference with
business and violations of 42 U.S.C. § 1983. The motion to amend also added
the City’s mayor, Frank Snyder, as a party to the case. The court granted V.W.
Enterprises’ motion for leave to amend. The court then granted the City’s motion
for summary judgment finding that the City was immune respecting the claims in
its original petition under Iowa Code section 670.4(10) of the Municipal Tort
Claims Act. V.W. Enterprises moved to amend and enlarge the findings of fact
and conclusions of law, which was denied.
U.S. Bank filed a motion for summary judgment. The court granted U.S.
Bank’s motion for summary judgment on the grounds that U.S. Bank was no
longer the receiver for 117 East Main Street and had not foreclosed on or taken
title to 117 East Main Street.
A second motion for summary judgment was filed by the City and the
mayor, Frank Snyder. In this motion, the mayor moved for summary judgment
on all claims against him, and the City moved for summary judgment on the
claims against it in the amended petition.
Prior to the court’s ruling on this
motion, V.W. Enterprises filed a third amended petition adding claims of
mandamus and waste against the mayor and the City. Each of the amended
petitions realleged all prior claims.
7
The district court then granted the motion to amend and applied the City’s
second motion for summary judgment to the new claims of mandamus and
waste. The district court barred V.W. Enterprises’ claims against the City and the
mayor under the theory of res judicata. The court further found again that section
670.4(10) barred the claims against the City and the mayor. The court also
dismissed V.W. Enterprises’ constitutional claim under 42 U.S.C. § 1983.
V.W. Enterprises now appeals the court’s ruling on the City’s and the
mayor’s first and second motions for summary judgment and U.S. Bank’s motion
for summary judgment, as well as the ruling dismissing U.S. Bank in its individual
capacity. V.W. Enterprises argues the following on appeal:
I. The district court erred in granting the city’s first motion for
summary judgment on the basis of supervision and control of the
water supply and actual malice of city officers.
II. The district court erred in granting U.S. Bank’s motion for
summary judgment on the basis of its receivership and the bank’s
motion to dismiss.
III. The district court erred in granting the city’s second motion for
summary judgment by applying the motion to plaintiffs’ new
pleadings and on the basis of res judicata and 42 U.S.C. section
1983.
II.
Standard of Review.
We review a district court's ruling on a motion for summary judgment for
correction of errors of law. Financial Mktg. Servs., Inc. v. Hawkeye Bank & Trust,
588 N.W.2d 450, 455 (Iowa 1999). Summary judgment will be upheld when the
moving party shows there are no genuine issues of material fact and the party is
entitled to judgment as a matter of law.
See Iowa R. Civ. P. 1.981(3).
In
reviewing a motion for summary judgment, we consider the evidence in a light
most favorable to the party opposing the motion. Crippen v. City of Cedar
8
Rapids, 618 N.W.2d 562, 565 (Iowa 2000).
The court must consider every
legitimate inference that can be reasonably deduced from the record in favor of
the resisting party.
Phillips v. Covenant Clinic, 625 N.W.2d 714, 718 (Iowa
2001). An inference is legitimate if it is “‘rational, reasonable, and otherwise
permissible under the governing substantive law.’” Id. (quoting Butler v. Hoover
Nature Trail, Inc., 530 N.W.2d 85, 88 (Iowa Ct. App. 1994)). On the other hand,
an inference is not legitimate if it is based upon speculation or conjecture. Id. If
reasonable minds may differ on the resolution of an issue, a genuine issue of
material fact exists. Id. A factual issue is “material” only if “‘the dispute is over
facts that might affect the outcome of the suit.’” Id. at 717 (quoting Fouts ex rel.
Jensen v. Mason, 592 N.W.2d 33, 35 (Iowa 1999) (citation omitted)).
Rulings on motions to dismiss are reviewed for legal error. Comes v.
Microsoft Corp., 646 N.W.2d 440, 442 (Iowa 2002).
III.
City’s First Motion for Summary Judgment.
In the City’s first motion for summary judgment, it argued that it is immune
from liability under Iowa Code section 670.4(10) of the Iowa Municipal Tort
Claims Act. The district court agreed. On appeal, V.W. Enterprises argues that
the City had sufficient supervision and control of the cause of the damage to
obligate it to turn off the water to 117 East Main Street and the City had a duty to
inspect 117 East Main Street under the city ordinances on nuisance.
Under section 670.2, “every municipality is subject to liability for its torts
and those of its officers and employees, acting within the scope of their
employment or duties, whether arising out of a governmental or proprietary
9
function.” However, liability imposed under section 670.2 does not apply to the
following:
Any claim based upon an act or omission of an officer or employee
of the municipality, whether by issuance of permit, inspection,
investigation, or otherwise, and whether the statute, ordinance, or
regulation is valid, if the damage was caused by a third party,
event, or property not under the supervision or control of the
municipality, unless the act or omission of the officer or employee
constitutes actual malice or a criminal offense.
Iowa Code § 670.4(10).
In this context, “supervision” has been defined as
“oversee[ing] with the powers of direction and decision the implementation of
one’s own or another’s intentions,” and “control” as “to exercise restraining or
directing influence over” or “have power over.” Hameed v. Brown, 530 N.W.2d
703, 707 (Iowa 1995). Whether immunity exists is “a question of law appropriate
for determination by the trial court.” Madden v. City of Eldridge, 661 N.W.2d 134,
140 (Iowa 2003) (citing Messerschmidt v. City of Sioux City, 654 N.W.2d 879,
884 (Iowa 2002)).
Under this statute, liability may attach if the third party caused
damage (1) while the municipality was overseeing the third party’s
conduct with the power to direct and decide the implementation of
the third party’s intentions, or (2) while the municipality was
exercising restraining influence over the third party.
Id. at 141 (emphasis added).
V.W. Enterprises argues that the City had supervision and control over the
water supply and the water supply caused this damage. Because of this control
of the water supply, it claims, the City should have shut the water off to 117 East
Main Street.
The applicable city ordinances state that the City is responsible for the
maintenance of the water supply and the meter. Here, the parties agree the
10
water leaked into the building as a result of a cracked regulator, which is located
on the property owner’s side of the meter. The ordinances indicate, and the
parties do not argue otherwise, that the City is not responsible for the water once
it is past the meter.
Although the parties frame the issues somewhat differently, we believe the
essential controversy here is one of causation. To be entitled to immunity under
section 670.4(10), the damage must have been “caused by a third party.”
Causation is not otherwise defined in section 670.4(10).
We believe for tort
liability purposes causation in the statute means proximate cause. That is, was
the conduct of the party “a substantial factor in producing [the] damage” and
would the damage “not have happened except for the conduct.” I Iowa Civ. Jury
Instructions 700.3 (1996). Of course, there may be more than one proximate
cause of the damage in a particular case.
Id. 700.4 (2000).
proximate cause is rarely subject to summary judgment.
The issue of
Iowa R. App. P.
6.14(6)(j); Knapp v. Simmons, 345 N.W.2d 118, 121-24 (Iowa 1984).
There seems to be no question that the water was leaking into the building
from a broken regulator inside the building. Neither the City nor its mayor has
any ownership interest in the privately-owned 117 East Main Street building or
any control over the building. There is no viable fact issue as to whether the
regulator was under the supervision and control of the City; it was not. However,
V.W. Enterprises argues the cause of the damage was the continual supply of
water to the building. We think there is a genuine issue of material fact as to
whether the continued supply of water was a substantial factor in producing the
damage. Accepting that a genuine issue of material fact exists as to the cause of
11
damages, it is premature to apply immunity under Iowa Code section 670.4(10),
because immunity applies only if the damage was caused by a third party, event
or property not under the supervision and control of the municipality. 3 The trial
court erred in assuming the cause of the damages was the leak inside the
building. V.W. Enterprises adequately preserved this issue by raising it again in
a motion pursuant to Iowa Rule of Civil Procedure 1.904(2), which was
summarily denied.
As a collateral issue, V.W. Enterprises maintains that the City failed to
exercise its non-discretionary duty to inspect the premises, which would have led
it to abate it as a nuisance. The district court impliedly conceded the City had
such a duty, but nevertheless found the immunity in section 670.4(10) applicable.
The ordinance regarding the inspection and control of nuisances provides
the City may serve on the owners of a building a complaint after the public officer
has noticed or been notified of a nuisance and inspected the nuisance.
Following that, a hearing will be scheduled to resolve the controversy.
Our
review of the ordinance leaves considerable doubt a duty to inspect was created.
In support of this claimed duty to inspect, V.W. Enterprises argues
inspection is an operational, not a discretionary, function of the City, thus the City
is not immune under Iowa Code section 670.4(3). The immunity granted by
section 670.4(3) was not raised as a defense in this case. We do not believe this
attempt to create a duty based on an immunity provision not relevant to the
issues in this case can succeed.
3
Applicable city ordinances show that the City has supervision and control of the water
supply up to the point of the meter.
12
Even accepting a duty to inspect was created as the district court implicitly
found, we find it premature to apply immunity under Iowa Code section 670.4(10)
because a genuine issue of fact still exists as to the cause of the damage.
Despite V.W. Enteprises’ argument, the right to inspect, or even the duty to
inspect, does not place the escaping water in 117 East Main Street under the
City’s supervision and control. Therefore if section 670.4(10) comes into play by
a determination that the damage was caused by a third party, event, or property
not under the supervision and control of the City, it applies to this claim as well.
See Madden, 661 N.W.2d at 141 (“In other words, Madden alleges the city is
liable for its acts or omission in its inspection of the building. This is precisely the
type of claim that is meant to come within the protective ambit of Iowa Code
section 670.4(10).”).
Iowa Code section 670.4(10) provides for an exception to immunity if the
failure to inspect constitutes actual malice or a criminal offense.
V.W.
Enterprises claims that the district court erred in applying section 670.4(10)
immunity to V.W. Enterprises’ claims because a genuine issue of material fact
exists as to whether the mayor acted with actual malice in failing to order the
inspection of 117 East Main Street.
V.W. Enterprises supports its claim by
contending that the mayor’s failure to inspect enabled Rick Alley, a former
member of the City’s economic development committee, to attempt to take over
the Breadeaux Pizza franchise in Clarinda.
We have previously stated that
because the cause of the damage has not been ascertained, it is premature to
consider immunity under Iowa Code section 670.4(10). Accordingly, we find it is
13
also premature to address V.W. Enterprises’ argument that the exception to
immunity applies and therefore we decline to do so.
IV.
City’s second motion for summary judgment.
A. Tort claims.
The City filed a second motion for summary judgment directed to V.W.
Enterprises’ amended and substituted petition.
The City argued that the
amended and substituted petition is barred by res judicata because it re-alleges
claims that the court summarily dismissed in its ruling on the City’s first motion for
summary judgment.
The City further argues that V.W. Enterprises’ claim of
tortious interference with business is barred by the municipal tort immunity of
Iowa Code section 670.4(10) and that the claim of a violation of 42 U.S.C. § 1983
fails as a matter of law.
For the same reasons we have stated in reversing the trial court’s grant of
the City’s original motion for summary judgment, we also reverse its grant of the
City’s second motion for summary judgment except as to the U.S.C. § 1983
claim.
B. 42 U.S.C. § 1983 claim.
In granting the City’s second motion for summary judgment on V.W.
Enterprises’ 42 U.S.C. § 1983 claim, the district court found that V.W. Enterprises
did not allege facts constituting an egregious governmental abuse against their
property rights that is shocking to the conscience of the court. 42 U.S.C. § 1983
provides in pertinent part as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any statute, ordinance, regulation,
custom, or usage, of any State or Territory of the District of
14
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceedings for
redress. . . .
Dickerson v. Mertz, 547 N.W.2d 208, 214 (Iowa 1996). “A plaintiff in a § 1983
action must establish (1) that the defendants deprived the plaintiff of a right
secured by the Constitution and laws of the United States, (2) that the defendant
acted under color of state law, (3) that the conduct was a proximate cause of the
plaintiff’s damage, and (4) the amount of damage.” Id. (citing Leydens v. City of
Des Moines, 484 N.W.2d 594, 596 (Iowa 1992)).
V.W. Enterprises is claiming a violation of its substantive due process
rights when the City failed to take actions to abate the nuisance at 117 East Main
Street resulting in a taking of V.W. Enterprises’ property without just
compensation. “The fourteenth amendment provides that no state shall ‘deprive
any person of life, liberty, or property, without due process of law . . . .’” Bailey v.
Lancaster, 470 N.W.2d 351, 361 (Iowa 1991). “Substantive due process protects
against abusive government conduct including deliberate or intentional
misconduct of an official.” Id. (citing Davidson v. Cannon, 474 U.S. 344, 347-48,
106 S. Ct. 668, 670, 88 L. Ed. 2d 677, 682-83 (1986)). Moreover, “[a]n act
becomes willful in law only when it involves some degree of conscious wrong or
evil on the part of the actor.” Id. (citing State v. Willing, 129 Iowa 72, 74, 105
N.W. 355, 356 (1905)). A violation of substantive due process is not easy to
prove. Bowers v. Polk County Bd. of Supervisors, 638 N.W.2d 682, 694 (Iowa
2002).
15
[S]ubstantive due process is reserved for the most egregious
governmental abuses against liberty or property rights, abuses that
"shock the conscience or otherwise offend . . . judicial notions of
fairness . . . [and that are] offensive to human dignity." With the
exception of certain intrusions on an individual's privacy and bodily
integrity, the collective conscience of the United States Supreme
Court is not easily shocked.
Id. (quoting Blumenthal Inv. Trusts v. City of West Des Moines, 636 N.W.2d 255,
265 (Iowa 2001) (citations omitted)).
The City maintains that V.W. Enterprises cannot show that it was deprived
of a right secured by the Constitution and laws of the United States, because it
has not produced facts egregious enough to constitute a violation of substantive
due process. Here, V.W. Enterprises is alleging the mayor did not take action to
inspect or abate the nuisance at 117 East Main Street in an effort to put V.W.
Enterprises out of business. We have carefully reviewed the evidence claimed to
support the deprivation of substantive due process and we agree with the trial
court’s determination that the claim fails as a matter of law. We believe the
substantive due process claim must be dismissed.
V.
U.S. Bank’s Motions to Dismiss and for Summary Judgment.
1. Motion to dismiss.
As a preliminary matter, in its petition for rehearing, U.S. Bank claims V.W.
Enterprises has not appealed the district court’s dismissal of U.S Bank in its
individual capacity.
The notice of appeal specifically refers to the various
summary judgment motions, but makes no mention of the ruling on the motion to
dismiss. The notice did, however, refer to “each and every other order inhering”
in the summary judgment rulings. V.W. Enterprises now contends the ruling on
the motion to dismiss inhered in the court’s summary judgment ruling. U.S Bank
16
did not argue its initial position regarding the notice of appeal in its brief, but
rather defended the dismissal ruling on its merits.
We conclude V.W. Enterprises has appealed from the ruling on the motion
to dismiss.
Although the notice of appeal did not specifically refer to the
dismissal motion ruling, the summary judgment ruling did refer to it.
We
conclude the nonappealable dismissal ruling inhered in the summary judgment
ruling. We also fail to find any prejudice to U.S. Bank in addressing this issue
here. The general rule is that notices of appeal should be construed liberally to
effect the laudable purpose of addressing issues on the merits. Iowa Dep’t of
Human Servs. ex rel. Greenhaw v. Stewart, 579 N.W.2d 321, 323-24 (Iowa
1998); Blink v. McNabb, 287 N.W.2d 596, 598-99 (Iowa 1980).
We also reject U.S. Bank’s contention that V.W. Enterprises abandoned
its claim against it individually by filing an amendment to the petition naming U.S
Bank as receiver before the court’s ruling on the motion to dismiss was rendered.
Both parties have continued to discuss this issue throughout their briefs. We do
not attribute the serious effect of abandonment to the timing of the amended
petition.
The motion to dismiss, although not expressly so stating, was based on
the premise that a claim against U.S. Bank in its individual or corporate capacity
failed to state a claim upon which any relief could be granted. Iowa R. Civ. P.
1.421(1)(e).
U.S. Bank alleged that as a matter of law it could not be held
individually responsible for any misdeeds connected with the receivership. Both
parties cite Miller v. Everest, 212 N.W.2d 522, 525-26 (Iowa 1973), in support of
their contentions that a receiver may or may not be personally responsible for the
17
receiver’s conduct. Miller illustrates that a receiver may incur individual liability
for its conduct under certain circumstances, and, in other instances, will only be
liable as a receiver. Miller, 212 N.W.2d at 525-26. Generally, a receiver is not
individually liable for torts against third parties.
Id.
However, if a receiver’s
conduct involves personal misconduct, individual responsibility may attach. Id.
Motions to dismiss for failure to state a claim upon which any relief may be
granted should be rarely granted. Robinson v. State, 687 N.W.2d 591, 592-93
(Iowa 2004) (stating “vast judicial resources could be saved with the exercise of
more professional patience”); Rieff v. Evans, 630 N.W.2d 278, 292 (Iowa 2001)
(stating only rare cases will not survive a motion to dismiss under notice
pleading). Only when a plaintiff’s petition “on its face shows no right of recovery
under any state of facts,” is it proper to grant a motion to dismiss. Schaffer v.
Frank Moyer Constr., Inc., 563 N.W.2d 605, 607 (Iowa 1997).
We view the
petition in the light most favorable to the plaintiff, resolving all doubts and
ambiguities in plaintiff’s favor. Below v. Skarr, 569 N.W.2d 510, 511 (Iowa 1997).
We find nothing in V.W. Enterprises’ petition which would limit its claims against
the receiver to its official capacity. We do not consider this one of the rare cases
in which all of V.W. Enterprises’ claims against U.S. Bank in its individual or
corporate capacity should be disposed of so precipitously and reverse the district
court’s sustention of U.S. Bank’s motion to dismiss.
This, of course, is not
intended to convey that we have any view as to the ultimate outcome of the
receiver’s liability, officially, individually, or at all.
18
2. Motion for summary judgment.
V.W. Enterprises maintains that the district court incorrectly framed the
issues.
The district court granted the motion finding that U.S. Bank never
actually foreclosed the mortgage or took title to 117 East Main Street and
therefore, U.S. Bank could not be liable for the damage caused by 117 East Main
Street. V.W. Enterprises is claiming that U.S. Bank knowingly and intentionally
permitted the property under its possession and control to invade, injure and
damage the property of another and that the bank negligently failed to exercise
ordinary care in managing the receivership property.
V.W. Enterprises again relies on Miller v. Everest, 212 N.W.2d 522 (Iowa
1973). In Miller, the receiver of foreclosed property failed to have the ice and
snow removed from the parking lot of the property which was shared with an
adjacent building. Miller, 212 N.W.2d at 523. An action for negligence was
brought against the receiver by the estate of a man who fell on the ice and died.
Id. The supreme court stated that failing to remove the snow may invoke liability
on the receiver’s part. Id. at 526. In reaching this conclusion, the supreme court
adopted the principle that as a receiver he was in possession of the property and
when his failure to perform a duty injures another he is liable. Id. Furthermore,
trespass is an actionable invasion of an interest in exclusive possession of land.
Ryan v. City of Emmetsburg, 232 Iowa 600, 4 N.W.2d 435, 437 (1942). An
invasion can occur by physical invasion by tangible matter as well as by
intangible matter, such as noise and odors. Id. There are fact issues to be
resolved regarding these claims. The trial court erred in granting U.S. Bank’s
motion for summary judgment.
19
We reverse the district court’s grant of summary judgment in favor of the
City and the mayor, Frank Snyder, except as to the grant of summary judgment
on the 42 U.S.C § 1983 claim, which we affirm. We also reverse the district
court’s grant of U.S. Bank’s motion to dismiss and summary judgment in favor of
U.S. Bank. We remand for further proceedings.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.