Third Party Claims in Dispute Between Lake View Neighbors Over Construction of A Fence Dismissed

E-FILED 2013 AUG 27 10:53 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 SEP 03 1:01 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT OF IOWA IN AND FOR SAC COUNTY
*
JOHN DRILLING, * EQCV019458
Pl!"#!$$, *
* ORDER SETTING HEARING
%& * AND PRESCRI'ING
HENRY HORST, * NOTICE
*
D($(")"#& *
*

Pl!"#!$$ *+ ,(-.(+#() " !//()!#( H(,!"0 1" *!+ ,(-.(+# $1, T(/21,,3
I"4."5#!1"& T*( C1.,# $!")+ #*# H(,!"0 +*1.l) 6( 0,"#()&
IT IS HERE'Y ORDERED #*# #*!+ /##(, +*ll 51/( 6($1,( #*( C1.,# 1" #*(
74#* )3 1$ S(2#(/6(,, 7018 # 7980 1:5l15; 2&/& !" #*( 51.,#,11/ !" #*( 51.,#*1.+( !"
S5 C!#3, S5 C1."#3, I1<&
IT IS FURTHER ORDERED #*# #*( D($(")"# +*ll 6( +(,%() 5123 1$ #*!+
O,)(, 63 #*( S5 C1."#3 S*(,!$$:+ D(2,#/("#&

E-FILED 2013 SEP 05 8:14 AM SAC - CLERK OF DISTRICT COURT
State of Iowa Courts
Type: OTHER ORDER
Case Number Case Title
EQCV019458 JOHN DRILLING VS. HENRY HORST
So Ordered
Electronically signed on 2013-09-05 08:14:24 page 2 of 2
2RCV01
IN THE IOWA DISTRICT COURT FOR SAC COUNTY

JOHN R DRILLING ,
PLAINTIFF(S),
vs.
HENRY HORST ,
DEFENDANT(S).

Case No. 02811 EQCV019458

O R D E R

A hearing in the above case has been set for September 24, 2013. The file now reflects
that a cross-petition has been filed, which adds several new parties, who have not yet
been served.
Accordingly, the following Order is entered.
IT IS ORDERED that the hearing set for September 24, 2013, is CONTINUED and
reschedueld for Monday, October 21, 2013, at 10:00 a.m. One hour has been allotted
for the hearing.

CLERK TO FURNISH COPIES TO:
Counsel of Record
Pro Se Parties
1 of 2
Type: OTHER ORDER
So Ordered
Electronically signed on 2013-09-23 11:47:29
2 of 2
E-FILED 2013 OCT 02 8:34 AM SAC - CLERK OF DISTRICT COURT
E-FILED 2013 OCT 18 3:14 PM SAC - CLERK OF DISTRICT COURT
E-FILED 2013 OCT 18 3:14 PM SAC - CLERK OF DISTRICT COURT
IOWA DISTRICT COURT FOR SAC COUNTY

JOHN DRILLING, )
)
Plaintiff, )
vs. )
)
HENRY HORST, )
)
Dfn!ant. ) N". E#C$%&'()*
+++++++++++++++++++++++++++++++++++++++++++++ O,!,
HENRY HORST, )
T-i,!+Pa,t. Plaintiff, )
$s. )
)
DENNIS WER/0EISTER an! )
ERIN E. 01CULLOUGH, !232a )
LAW OFFICES OF ERIN E. )
01CULLOUGH, )
T-i,!+Pa,t. Dfn!ants. )

T- 1a4ti"n! 5att, 6as st f", -a,in7 "n t-is !at. C"8nsl
N44, -as fil! a 0"ti"n f", C"ntin8an1. T- C"8,t is inf",5! 3. att",n.
Ja5s $an D.9 t-at n1ssa,. 4a,tis -av n"t 3n s,v! in a11",!an1 6it-
stat8t. As a 1"ns:8n1, t-is 5att, s-all 3 1"ntin8!.
IT IS THEREFORE ORDERED t-at -a,in7 is 1"ntin8! t"
December 2, 2013 at 11:00 a.m.

Clerk to forward copies to:
Allen Nepper
James R. Van Dyke
Type: OTHER ORDER
So Ordered
Notice Id: 2CA004

JOHN R DRILLING ,

Plaintiff / Petitioner,

vs.

HENRY HORST ,

Defendant / Respondent.

Notice of Trial Setting Conference

Case No: 02811 EQCV019458

A scheduling conference will be held on 11/21/13 at 10:30 AM with Kellie Orres, as District Court
Designee, pursuant to I.R.C.P 1.602.

This conference shall be conducted by telephone conference call initiated by plaintiff's counsel.
Kellie Orres may be contacted via telephone at: (515) 574-3752.

1. PARTICIPATION: All attorneys appearing in the case shall participate in this conference. A party
who is not represented by counsel shall contact the Court Administrator's office (at the above phone
number) prior to the date and time of the conference call.

2. TRIAL SCHEDULING: A firm trial date shall be established in accordance with the Supreme
Court's time standards as provided by Chapter 23, Iowa Court Rules. NO CONTINUANCES SHALL
BE GRANTED EXCEPT BY COURT ORDER, UPON GOOD CAUSE SHOWN.

3. SANCTIONS: If a party or attorney fails to participate in the scheduling conference or is
substantially unprepared to participate in the conference, the Court may impose appropriate
sanctions, including reasonable expenses and attorney fees. (I.R.C.P 1.602(5)).

/s/ Kellie Orres
---------------------------------------
Designee of the Court

Clerk to provide copies or
notice of document to attorneys
of record and parties appearing
pro se.

E-FILED 2013 NOV 08 10:30 AM SAC - CLERK OF DISTRICT COURT
Notice Id: 2CA004

JOHN R DRILLING ,


vs.

HENRY HORST ,


Notice of Trial Setting Conference


A scheduling conference will be held on 11/21/13 at 10:30 AM with Kellie Orres, as District Court
Designee, pursuant to I.R.C.P 1.602.

This conference shall be conducted by telephone conference call initiated by plaintiff's counsel.
Kellie Orres may be contacted via telephone at: (515) 574-3752.

1. PARTICIPATION: All attorneys appearing in the case shall participate in this conference. A party
who is not represented by counsel shall contact the Court Administrator's office (at the above phone
number) prior to the date and time of the conference call.

2. TRIAL SCHEDULING: A firm trial date shall be established in accordance with the Supreme
Court's time standards as provided by Chapter 23, Iowa Court Rules. NO CONTINUANCES SHALL
BE GRANTED EXCEPT BY COURT ORDER, UPON GOOD CAUSE SHOWN.

3. SANCTIONS: If a party or attorney fails to participate in the scheduling conference or is
substantially unprepared to participate in the conference, the Court may impose appropriate
sanctions, including reasonable expenses and attorney fees. (I.R.C.P 1.602(5)).

/s/ Kellie Orres
---------------------------------------

Clerk to provide copies or
notice of document to attorneys
of record and parties appearing
pro se.

E-FILED 2013 NOV 08 12:20 PM SAC - CLERK OF DISTRICT COURT

COME NOW the Third-party Defendants, Dennis Werkmeister and Erin E. McCullough
d/b/a The Law Offices of Erin E. McCullough, and in support of the above-captioned motion
state as follows:

1. On August 27, 2013, the Plaintiff, John Drilling, filed a petition in equity against
Henry Horst, seeking a temporary and permanent injunction enjoining Horst from constructing a
common-fence on his property pursuant to a building permit issued by the Lake View City
Council.

2. Horst responded by filing an answer denying the allegations of the petition and by
filing a cross-petition against Werkmeister and McCullough seeking indemnification from them.

3. The cross-petition fails to state a claim upon which any relief may be granted.
See Iowa R. Civ. P. 1.421(1)(f); McNally & Nimergood v. Neumann-Kiewit Constructors, Inc.,
648 N.W.2d 564, 570 (Iowa 2002) (In the absence of a duty imposed by law to indemnify
another, there is no right to indemnification unless derived from a contract.).

4. Werkmeister and McCullough request the Court to set this matter for hearing and
upon hearing, grant their motion and dismiss the cross-petition.

WHEREFORE the Third-party Defendants request the Court to set this matter for
hearing and upon hearing, grant their motion and dismiss the cross-petition and for such other
and further relief as the Court deems just and equitable in the premises.

JOHN DRILLING,
Plaintiff,

vs.

HENRY HORST,
Defendant.
__________________________________

HENRY HORST,
Third-party Plaintiff,

vs.

DENNIS WERKMEISTER and ERIN
E. McCULLOUGH, d/b/a LAW
OFFICES OF ERIN E.
McCULLOUGH,
Third-party Defendants.

No. EQCV019458

MOTION TO DISMISS

/s/ Gina C. Badding
Gina C. Badding AT0000499 for
NEU, MINNICH, COMITO & NEU, P.C.
721 N. Main Street
P.O. Box 367
Carroll, Iowa 51401
(712) 792-3508
(712) 792-3563 (fax)
gina@nmcnlaw.com
ATTORNEYS FOR THIRD-PARTY
DEFENDANTS

CERTIFICATE OF SERVICE
I hereby certify that on November 20, 2013, I electronically filed the foregoing with the Clerk of Court
using the EDMS system, which will send notification of such filing to the following:
Allen Nepper
James R. Van Dyke

/s/ Gina C. Badding
Gina C. Badding


COMES NOW, Gina C. Badding for NEU, MINNICH, COMITO & NEU, P.C. and enters
the firms appearance for the Third-party Defendants, Dennis Werkmeister and Erin E.
McCullough d/b/a The Law Offices of Erin E. McCullough, in the above-titled case.

/s/ Gina C. Badding
721 N. Main Street
P.O. Box 367
Carroll, Iowa 51401
(712) 792-3508
(712) 792-3563 (fax)
gina@nmcnlaw.com
DEFENDANTS

JOHN DRILLING,
Plaintiff,

vs.

HENRY HORST,
Defendant.
__________________________________

HENRY HORST,

vs.

OFFICES OF ERIN E.
McCULLOUGH,

No. EQCV019458

APPEARANCE


I hereby certify that on November 20, 2013, I electronically filed the foregoing with the Clerk of Court
using the EDMS system, which will send notification of such filing to the following:
Allen Nepper
James R. Van Dyke

/s/ Gina C. Badding
Gina C. Badding

Notice Id: 2CA101


JOHN R DRILLING ,


vs.

HENRY HORST ,



Trial Notice

The above entitled matter is hereby scheduled for non-jury trial on 05/07/14 at 09:00 AM .

1 Day Injunction
Discovery Due 60 days prior to trial

/s/ Kellie Orres
-----------------------------------

Clerk to provide copies or notice
of this document to attorneys of record,
parties appearing pro se and
judge if assigned

Docket Code = OSTR
Notice ID: 2RCV31

JOHN R DRILLING ,
Plaintiff,
vs.
HENRY HORST ,
Defendant.

ORDER SETTING HEARING

The Third Party Defendants have filed a Motion to Dismiss. A hearing will now be
scheduled.

IT IS, THEREFORE, THE ORDER OF THE COURT as follows:
1. A Hearing is scheduled on 12/02/2013 at 11:00 AM at the Sac Co. Courthouse,
100 NW State St., Sac City, Iowa.

If you need assistance to participate in court due to a disability, call the disability coordinator at
641-421-0990. Persons who are hearing or speech impaired may call Relay Iowa TTY (1-800-735-2942).
Disablity coordinators cannot provide legal advice.
1 of 2
Type: ORDER SETTING HEARING
So Ordered
2 of 2

COME NOW the Third-party Defendants, Dennis Werkmeister and Erin E. McCullough
d/b/a The Law Offices of Erin E. McCullough, and in reply to the Third-party Plaintiffs
Resistance to their Motion to Dismiss state as follows:

1. Henry Horst, the Third-party Plaintiff, characterizes his action against
Werkmeister and McCullough as one for equitable indemnification and argues if Drilling has
a claim for relief against Horst, then Horst has a claim for relief against Werkmeister and/or
McCullough.

2. It is true that indemnification, as a form of restitution, can be implied by law in
tort claims to shift liability for an obligation to the party who should bear ultimate responsibility
for it under principles of equity, or it can be based on contract. McNally & Nimbergood v.
Neumann-Kiewit Constructors, Inc., 648 N.W.2d 564, 570 (Iowa 2002) (emphasis added). Horst
has not alleged a tort claim against Werkmeister and McCullough.

3. Setting aside Horsts failure to allege a tort claim as the basis for his equitable
indemnification action against Werkmeister and McCullough, Horst has also failed to allege any
set of facts establishing that Werkmeister and McCullough owed him a duty of indemnification.
Id. (In the absence of a duty imposed by law to indemnify another, there is no right to
indemnification unless derived from a contract.) (emphasis added). [A]n essential element in
establishing a right to indemnity is that the party asserting indemnity was legally obligated to
discharge the obligation for which the party seeks indemnity. Henning v. Security Bank, 564
N.W.2d 398, 401 (Iowa 1997).

JOHN DRILLING,
Plaintiff,

vs.

HENRY HORST,
Defendant.
__________________________________

HENRY HORST,

vs.

OFFICES OF ERIN E.
McCULLOUGH,

No. EQCV019458

REPLY TO RESISTANCE TO
MOTION TO DISMISS

E-FILED 2013 DEC 02 11:16 AM SAC - CLERK OF DISTRICT COURT
4. Our courts have never applied equitable indemnity based on notions of simple
fairness, as Horst seems to be alleging should be done in this case. Wells Dairy, Inc. v. Am.
Indus. Refrigerations, Inc., 762 N.W.2d 463, 471 (Iowa 2009) (noting the application of
equitable indemnity based on that ground have been subject to considerable academic debate
and criticized by it in past cases); see also Woodruff Constr. Co. v. Barrick Roofers, Inc., 406
N.W.2d 783, 786 (discussing this criticism and refusing to apply equitable indemnity based on
concepts of fairness).

WHEREFORE the Third-party Defendants request the Court to grant their motion to
dismiss the cross-petition and for such other and further relief as the Court deems just and
equitable in the premises.

/s/ Gina C. Badding
721 N. Main Street
P.O. Box 367
Carroll, Iowa 51401
(712) 792-3508
(712) 792-3563 (fax)
gina@nmcnlaw.com
DEFENDANTS

I hereby certify that on December 2, 2013, I electronically filed the foregoing with the Clerk of Court using
the EDMS system, which will send notification of such filing to the following:
Allen Nepper
James R. Van Dyke

/s/ Gina C. Badding
Gina C. Badding

E-FILED 2013 DEC 02 11:16 AM SAC - CLERK OF DISTRICT COURT
2RCV12

JOHN R DRILLING ,

Plaintiff,

vs.

HENRY HORST ,

Defendant.


COURT REPORTER
MEMORANDUM AND CERTIFICATE

COURT REPORTER MEMORANDUM
(The court reporter shall file this memorandum with the district court clerk.)

Appearances:

For Plaintiff/Petitioner: Alan Nepper
For Defendant/Respondent: James Van Dyke
Other: Gina Badding

Information required by Iowa Rule of Civil Procedure 1.903(3):

I, Tara Gibson, am providing the following information as required by Iowa Rule of Civil Procedure
1.903(3):

1. The type of proceeding that was reported: Injunction
2. The date(s) on which the proceeding occurred: December 2, 2013
3. The name of the court reporter who reported the proceeding: Tara Gibson
4. The name of the judge who presided over the proceeding: Gary McMinimee
5. The reporting fee for the proceeding: $40.00
6. We, the undersigned judge before whom the above-entitled case was tried, and the official court
reporter who, by order of the Court, reported the same, do hereby certify that the above and foregoing
is the report of the whole proceedings upon the trial and/or hearing of the above-entitled cause made
and taken pursuant to the order and direction of the Court, in accordance with Iowa Code Section
624.10.
/s/Tara Gibson
_________________________________________
1 of 2
E-FILED 2013 DEC 02 2:06 PM SAC - CLERK OF DISTRICT COURT
Type: COURT REPORTER MEMORANDUM AND CERTIFICATE
So Ordered
2 of 2

JOHN R DRILLING ,

Plaintiff,

vs.

HENRY HORST ,

Defendant.


EXHIBIT LIST

Hearing
December 2, 2013

Presiding Judge: Gary McMinimee

The following exhibits were offered and admitted by the Court at the hearing as shown above:

Plaintiff's Exhibits

1. Photo
2. Photo
3. Canceled check
4. Council agenda
5. Fences, walls and vision clearance
6. Permit application
7. Permit application
8. Description of land
9. Judgment entry and decree
10. Platt of Drillng's North Shore Second Addition
11. Photo
12. Warranty deed
13. Photo
14. Photo
15. Photo
16. Photo
17. Photo
18. Aerial view

Defendant's Exhibits

A.
1 of 3
B.
C. Council agenda
D.
E.
F. Defendant's affidavit in resistance to request for injunction
G. Aerial view of land
H. Photo
I. CD

2 of 3
Type: EXHIBIT LIST
So Ordered
3 of 3

JOHN DRILLING, )
)
Plaintiff, ) No. EQC!"#$%&
)
'. ) ORDER
)
HENRY HORST, )
)
D(f(n)ant. )
____________________________________)
HENRY HORST, )
)
T*i+),Pa+t- Plaintiff, )
)
'. )
)
DENNIS WER./EISTER AND )
ERIN E. /CCULLOUGH )010a )
/CCULLOUGH, )
)
T*i+),Pa+t- D(f(n)ant'. )

This matter came on for hearing on temporary injunction on
December 2, 2013. The parties appeared with their attorneys.
Plaintiff sees a temporary injunction prohibiting Defendant from
constructing a !"foot fence between the parties# properties along the south and
east boundary lines of Plaintiff#s property. $e claims the fence would be in
%iolation of the city ordinance and illegal because it would cross a proposed road.
Defendant resists the entry of a temporary injunction.
&owa law authori'es the entry of a temporary injunction in three
circumstances(
)hen the Petition, supported by affida%it shows the Plaintiff
is entitled to relief which includes restraining the commission
or continuance of some act which would greatly or
irreparably injure the Plaintiff.

)here, during the litigation, it appears that a party is doing,
procuring or suffering to be done, or threatens or is about to
E-FILED 2014 JAN 03 2:37 PM SAC - CLERK OF DISTRICT COURT
do, any act %iolating the other#s rights respecting the subject
of the action intending the mae the judgment ineffectual.

&n any case specifically authori'ed by statute.

&owa *ule of +i%il Procedure 1.1,02.
&n this +ourt#s %iew, Plaintiff has failed to establish his right to a
temporary injunction on any of these grounds. Plaintiff has not cited any statute
specifically authori'ing a temporary injunction. -either has he shown that the
failure to issue the injunction will cause him .great or irreparable harm/ nor tend
to mae the ultimate judgment in this matter .ineffectual/. 0%en if the fence is
constructed as Defendant proposes, an ultimate finding in fa%or of the Plaintiff on
the merits would not be ineffectual1 the Defendant is clearly on notice of the
Plaintiff#s positions and there would seem to be little impediment to the +ourt
re2uiring Defendant to promptly remo%e the fence at Defendant#s costs. The
only harm that Plaintiff has asserted is a lac of full %iew of the lae from a
portion of his property and the depri%ation of a more con%enient access to his
property. *ather than accessing his property on the east, the fence would
re2uire he to access it on the west. 3lthough his %iew of the lae may be bloc to
some e4tent by the fence if it is constructed during these proceedings, the +ourt
does not consider that such relati%ely short term .irreparable harm/ warrants the
issuance of a temporary injunction.

ORDER
IT IS THEREFORE ORDERED that the 3pplication for Temporary
&njunction is denied.

Dated this 5th day of 6anuary, 2015.

+ler to pro%ide copies to(
+ounsel of record
Type: OTHER ORDER
So Ordered

JOHN DRILLING, )
)
Plaintiff, ) No. EQC!"#$%&
)
'. ) ORDER
)
HENRY HORST, )
)
D(f(n)ant. )
____________________________________)
HENRY HORST, )
)
T*i+),Pa+t- Plaintiff, )
)
'. )
)
DENNIS WE./EISTER an) )
ERIN E. /0CULLOUGH )121a )
/0CULLOUGH, )
)
T*i+),Pa+t- D(f(n)ant'. )

Motion to Dismiss came on for hearing on December 2, 2013. The
parties appeared with their attorneys. Third-Party Defendants, relying on
McNally & Nimergood v. Neumann-Kiewit Constructors, Inc., !" #.$.2d %!,
%&0 '(owa 2002), see* dismissal on the gro+nd that the ,ross Petition fails to
state a claim +pon which relief can be granted. Third-Party Plaintiff in his
resistance indicates that he relies +pon the doctrine of e-+itable indemnification.
$hen an e-+itable indemnity is in.ol.ed, the intention of the
parties to indemnify, +nli*e the case of implied contract+al
indemnity, is not rele.ant. (nstead, the law imposes
indemnity d+e to the relationship of the parties and the
+nderlying loss regardless of intention. /-+itable
indemnification arises from non-contract+al obligations.

Wells Dairy, Inc., v. Air, &2 #.$.2d !3, !&1 '(owa 2000). (owa recogni1es
.ario+s traditional concepts of e-+itable indemnity, as well as, the 2independent
d+ty3 branch of e-+itable indemnity. 4owe.er, here there is no basis for
e-+itable indemnity +nder any of the traditional concepts and there has been no
showing of any 2independent d+ty.3 #onetheless, some co+rts ha.e imposed
e-+itable indemnity based +pon 2simple fairness.3 The (owa 5+preme ,o+rt has
ne.er embraced that branch of e-+itable indemnification and in fact has critici1ed
it 2citing the need for stability in the law.3 Wells Dairy, Inc., v. Air, &2 #.$.2d
!3, !&2 '(owa 2000).
6ltho+gh it appears +nli*ely that the Third-Party Plaintiff co+ld
establish facts that wo+ld ca+se this ,o+rt to concl+de that e-+itable indemnity is
appropriate +nder a 2fairness3 doctrine, this is a Motion to Dismiss. 7egarding
s+ch motions, the (owa 5+preme ,o+rt has said8
9$:e certainly do no recommend the filing of motions to
dismiss in litigation, the .iability of which is debatable.
#either do we endorse s+staining s+ch motions, e.en where
the r+ling is e.ent+ally affirmed. ;oth the filing and the
s+staining are bad ideas.

Cutler v. Klass, Whicher & Mishne, !&3 #.$.2d 1&", 1"1 '(owa 1001). The
Motion to Dismiss sho+ld be o.err+led.

ORDER
IT IS THEREFORE ORDERED that the Motion to Dismiss is
o.err+led
Dated this !
th
day of <an+ary, 201!.

,ler* to pro.ide copies to8
,o+nsel of record
Type: OTHER ORDER
So Ordered
E-FILED 2014 APR 30 4:07 PM SAC - CLERK OF DISTRICT COURT
E-FILED 2014 APR 30 4:07 PM SAC - CLERK OF DISTRICT COURT
E-FILED 2014 MAY 02 8:37 AM SAC - CLERK OF DISTRICT COURT

Third Party Claims in Dispute Between Lake View Neighbors Over Construction of A Fence Dismissed

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E-FILED 2013 AUG 27 10:53 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 AUG 27 10:53 AM SAC - CLERK OF DISTRICT COURT

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