Opinion
No. 1-430 / 00-0995.
Filed January 28, 2002.
Appeal from the Iowa District Court for Dubuque County, ALAN L. PEARSON, Judge.
Defendants appeal from the district court ruling vacating a previously-issued injunction and refusing to award damages in the plaintiffs' action involving the parties' use of an easement. AFFIRMED.
Lawrence H. Crosby of Crosby Associates, Saint Paul, Minnesota, and Craig G. Ensign of Ensign Law Office, Northwood, for appellants.
Brendan T. Quann and Davin C. Curtiss of O'Connor Thomas, P.C., Dubuque, for appellees.
Heard by HUITINK, P.J., and ZIMMER, and VAITHESWARAN, JJ.
Robert and Connie Simon appeal from a district court ruling vacating a previously-issued injunction and refusing to award damages in this action commenced by Mount Olivet Cemetery Association and Clayton and Barbara Johnson involving the use of an easement. The Simons contend (1) the law firm representing Mount Olivet and the Johnsons had an inherent conflict of interest requiring its withdrawal, (2) damages should have been assessed against Mount Olivet and the Johnsons on account of their on-going interference in the use of a shared easement and claiming an easement without any knowledge of where it actually ran and without having it surveyed, (3) their motion to extend the time for trial or to grant a continuance to retain another expert witness-appraiser should have been permitted, and (4) an Iowa non-profit corporation does not have the right to initiate litigation without first obtaining the formal authorization of its board of directors. We affirm.
I. FACTS AND PREVIOUS PROCEEDINGS.
The district court as factfinder could have found the following facts. In 1850, the Archdiocese of Dubuque founded Mount St. Bernard's Seminary, consisting of a three-story stone building, a barn, and a lane. The property relevant to this action remained in the Archdiocese's common ownership until 1969, after which it was sold in various parcels to multiple buyers.
The first easement created that is relevant to this dispute, Easement A, burdened the first lot sold along its eastern boundary line. The Johnsons purchased a lot in 1971 that was serviced by a preexisting lane once it crossed the southern border of Easement A. The Johnsons have maintained and improved the lane. In 1976, the Archdiocese filed a plat showing Easement B, which commenced approximately where the lane ended and then proceeded south another 660 feet.
In 1977, the Archdiocese added Easement C for driveway purposes. It connected Easements A and B. Two months later, the Archdiocese sold to the Johnsons a parcel that essentially covered all the land that abutted Easement B to the west. In 1989, the Archdiocese filed a plat further subdividing its remaining property. Dubuque County dedicated an additional twenty feet east of Easements A, B, and C as a roadway and utility easement. In October 1989, the Archdiocese sold a lot on the east side of the easements to Mount Olivet, and in January 1990, the Archdiocese sold Robert Simon a lot, which was served by access over the easements, but was not burdened by any portion of them. Simon later sold the western part of that lot to the Johnsons.
Robert Simon informed his neighbors in June 1994 that he wanted to develop the platted easements. The neighbors and Simon were unable to resolve their differences or come to any agreement. In 1997, Simon began cutting and knocking down trees on the easements. He also knocked down a few trees on Mount Olivet property.
Mount Olivet and the Johnsons petitioned the district court for temporary and permanent injunctions and damages incurred as a result of Simon's destruction of their property inside and outside the easements. The court granted a temporary injunction without bond.
The Simons counterclaimed for tortious interference with contract, breach of the covenant of quiet enjoyment and the right of use, and failure to post a bond. Mount Olivet's and the Johnsons' second amended petition additionally requested the court quiet title to the Johnsons' driveway in the Johnsons, a permanent injunction enjoining the Simons from injuring or threatening the driveway, and damages against the Simons. Following trial, the district court vacated the temporary injunction and denied all other claims by the parties. The Simons appeal.
II. CONFLICT OF INTEREST.
The law firm of O'Connor and Thomas represented Mount Olivet and the Johnsons in this action. The same firm previously represented the Archdiocese in its sale of land to the Simons. On appeal, the Simons contend the law firm's representation in the current action constitutes an inherent conflict of interest because the interests of Mount Olivet and the Johnsons are adverse, and its prior representation of the Archdiocese precludes it from participating in this suit.
The Simons have failed to state how these issues were preserved for review. They have not included references to the places in the record where the issues were raised and decided. See Iowa R. App. P. 14(a)(5) (appellant must state in his brief how an issue was preserved for review, with references to the places in the record where the issue was raised and decided). Accordingly, we decline to consider these arguments.
III. DAMAGES.
The district court denied the Simons' claims for damages under theories of tortious interference with contract, breach of quiet enjoyment, and failure to post a bond after the temporary injunction. The Simons contend on appeal that damages should be assessed based on Mount Olivet's and the Johnsons' interference in the use of the easements and claiming an easement without any knowledge of where the easement actually ran and without having the easement surveyed to determine its exact location.
We review the trial court's denial of the Simons' claims for the correction of errors at law. Iowa R. App. P. 4. The trial court's findings of fact have the effect of a special verdict and are binding on us if supported by substantial evidence. Van Oort Constr. Co. v. Nuckoll's Concrete Serv., Inc., 599 N.W.2d 684, 689 (Iowa 1999). "Evidence is substantial for purposes of sustaining a finding of fact when a reasonable mind would accept it as adequate to reach a conclusion." Falczynski v. Amoco Oil Co., 533 N.W.2d 226, 230 (Iowa 1995). "We view the evidence in a light most favorable to the trial court's judgment." Van Oort, 599 N.W.2d at 689.
Iowa law imposes tort liability on a person who intentionally and improperly interferes with the performance of a contract between another and a third person. Fin. Mktg. Servs., Inc. v. Hawkeye Bank Trust of Des Moines, 588 N.W.2d 450, 458 (Iowa 1999). Premising a claim on this theory presupposes the existence of a contract. We find the Simons have failed to show there was a contract with which Mount Olivet and the Johnsons interfered. We affirm on this issue.
We find that the Simons have not sufficiently raised for our review the issue of whether Mount Olivet and the Johnsons breached a covenant of quiet enjoyment. The Simons may have alluded to this issue in an argument heading, but they did not elaborate on it or provide supportive authority in their brief. Soo Line R. Co. v. Iowa Dep't of Transp., 521 N.W.2d 685, 691 (Iowa 1994); Iowa R. App. P. 14(a)(3). We do not address this issue.
We agree with the Simons that the district court should have required a bond be filed in the order granting the temporary injunction. See Iowa R. Civ. P. 327. However, after the injunction was ordered, the Simons did not ask the court to impose a bond. Therefore, we find the Simons have waived their claim, and we affirm the district court on this issue.
We conclude that substantial evidence supports the district court's findings of fact, and it did not err in denying the Simons' claims. We affirm.
IV. EXPERT WITNESS-APPRAISER.
The Simons indicated before trial that they intended to call appraiser Tom Kane as an expert witness. According to Kane, the Simons asked him to appraise part of a farm. Kane agreed to perform an appraisal, but the Simons did not inform Kane that any lawsuit was pending and did not ask him to serve as an expert witness on anyone's behalf. The Simons did not retain Kane's services as an expert witness, nor did Kane enter into any expert retainer agreement. The Simons later asked Kane about the appraisal. The Simons then informed Kane that they wanted Kane to serve as an expert witness in this action. Kane declined to do so based on his work for the Catholic churches in the Dubuque area and his finding work as an expert witness less desirable than other available work as an appraiser.
On November 1, 1999, the Simons filed a motion to shorten the time to disclose a substituted expert witness, to allow the substitution of Kane, and to reschedule and continue trial in this matter. The trial was scheduled to commence November 22, 1999. The district court denied the Simons' motion. It determined that Kane's agreement to perform an appraisal for the Simons was not tantamount to agreeing to be an expert witness in a lawsuit, and it noted the protracted nature of the lawsuit.
We accord the trial court broad discretion in the admissibility of expert testimony. Bell v. Cmty. Ambulance Serv. Agency for N. Des Moines County, 579 N.W.2d 330, 338 (Iowa 1998). When evaluating the exclusion of expert testimony, we give great deference to the trial court. Id. We interfere only if clear abuse is shown. Id.
The Simons' attempt to secure more time to designate an expert witness in place of Kane ran afoul of Iowa Rule of Civil Procedure 125(c) (requiring supplementation by giving names of experts expected to be called at trial "as soon as practicable, but in no event less than thirty days prior to the beginning of trial except on leave of court"). Failure to comply with the rule may result in sanctions. Lambert v. Sisters of Mercy Health Corp., 369 N.W.2d 417, 421 (Iowa 1985). Exclusion of evidence is the most severe sanction available under the rule, and is justified only when prejudice would result. Schoenfeld v. FDL Foods, Inc., 560 N.W.2d 595, 598 (Iowa 1997). Exclusion should not be imposed lightly; other sanctions are available such as continuation of the trial or limitation of testimony. Lambert, 369 N.W.2d at 421. The purpose of rule 125 is to avoid surprise to litigants and to allow the parties to formulate their positions on as much evidence as is available. Id. at 422.
The decision to grant or deny a continuance of trial rests within the discretion of the trial court. Hawkeye Bank Trust, Nat. Ass'n v. Baugh, 463 N.W.2d 22, 26 (Iowa 1990). We will reverse only when that discretion is abused. Id. The trial court is given guidelines to help exercise its discretion when presented with a motion for continuance, which we in turn use to measure the reasonableness of the trial court's decision. Id. These guidelines provide "[a] continuance may be allowed for any cause not growing out of the fault or negligence of the movant, which satisfies the court that substantial justice will be more nearly obtained." Iowa R. Civ. P. 183(a). Thus, when a motion for continuance is promptly filed, "alleging a cause not stemming from the movant's own fault or negligence, the court must determine whether substantial justice will be more nearly obtained by granting the request." State v. Birkestrand, 239 N.W.2d 353, 360 (Iowa 1976).
We find the trial court did not abuse its discretion in denying the Simons' motion. They had not retained Kane as an expert witness, but had merely asked him to do an appraisal. They filed their motion merely three weeks prior to the scheduled commencement of trial. As the district court noted, this litigation was protracted, and we point out that much of the pretrial delay was due to the Simons. We affirm.
V. ULTRA VIRES ACTION BY MOUNT OLIVET.
The Simons contend on appeal that Mount Olivet, as a nonprofit corporation, did not have the right to initiate litigation without first obtaining the formal authorization of its board of directors. The Simons have failed to show how they have preserved error on this claim. They have not cited to the record to show where their claim was raised and decided. See Iowa R. App. P. 14(a)(5). Therefore, we do not address it.
VI. CONCLUSION.
We conclude substantial evidence supports the district court's factual findings, and we find no legal error in its denial of the Simons' claims. We do not address the Simons' claims on appeal involving conflict of interest and ultra vires action by Mount Olivet. We affirm the district court's judgment.
AFFIRMED.