John Drilling vs Henry Horst - Eqcv019458

8/13/2019 John Drilling vs Henry Horst - Eqcv019458

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


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


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IN THE IOWA DISTRICT COURT OF IOWA IN AND FOR SAC COUNTY

*

JOHN DRILLING, * EQCV019458

Pl!"#!$$, ** ORDER SETTING HEARING

%& * AND PRESCRI'INGHENRY HORST, * NOTICE

*

D($(")"#& *

*

Pl!"#!$$ + (-.(+#() " !//()!#( H(!" " !+ (-.(+# $ T(/23

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IT IS HERE'Y ORDERED ## #!+ /##( +ll /( 6($( #( C.# " #(

74# )3 $ S(2#(/6(, 701 # 70 :l; 2&/& !" #( .#/ !" #( .#.+( !"

S C!#3, S C."#3, I


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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

E-FILED 2013 SEP 05 8:14 AM SAC - CLERK OF DISTRICT COURT


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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

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Case Number Case TitleEQCV019458 JOHN DRILLING VS. HENRY HORST

Type: OTHER ORDER

So Ordered

Electronically signed on 2013-09-23 11:47:29

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E-FILED 2013 OCT 02 8:34 AM SAC - CLERK OF DISTRICT COURT


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E-FILED 2013 OCT 18 3:14 PM SAC - CLERK OF DISTRICT COURT


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E-FILED 2013 OCT 18 3:14 PM SAC - CLERK OF DISTRICT COURT


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IOWA DISTRICT COURT FOR SAC COUNTY

JOHN DRILLING, ))

Plaintiff, )

vs. ))HENRY HORST, )

)Dfn!ant. ) N". E#C$%&'(*

+++++++++++++++++++++++++++++++++++++++++++++ O!HENRY HORST, )

T-i!+Pat Plaintiff, )$s. )

)DENNIS WER/0EISTER an! )ERIN E. 01CULLOUGH, !232a )LAW OFFICES OF ERIN E. )01CULLOUGH, )

T-i!+Pat Dfn!ants. )

T- 1a4ti"n! 5att 6as st f" -ain7 "n t-is !at. C"8nsl

N44 -as fil! a 0"ti"n f" C"ntin8an1. T- C"8t is inf"5! 3 att"n

Ja5s $an D9 t-at n1ssa 4atis -av n"t 3n sv! in a11"!an1 6it-

stat8t. As a 1"ns:8n1, t-is 5att s-all 3 1"ntin8!.

IT IS THEREFORE ORDERED t-at -ain7 is 1"ntin8! t"

December 2, 2013 at 11:00 a.m.

Clerk to forward copies to:Allen NepperJames R. Van Dyke



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Type: OTHER ORDER



So Ordered




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Notice Id: 2CA004IN THE IOWA DISTRICT COURT FOR SAC COUNTY

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 CourtDesignee, 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 partywho is not represented by counsel shall contact the Court Administrator's office (at the above phonenumber) prior to the date and time of the conference call.2. TRIAL SCHEDULING: A firm trial date shall be established in accordance with the SupremeCourt's time standards as provided by Chapter 23, Iowa Court Rules. NO CONTINUANCES SHALLBE GRANTED EXCEPT BY COURT ORDER, UPON GOOD CAUSE SHOWN.

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

/s/ Kellie Orres

--------------------------------------- Designee of the CourtClerk to provide copies ornotice of document to attorneysof record and parties appearingpro se.

E-FILED 2013 NOV 08 10:30 AM SAC - CLERK OF DISTRICT COURT


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Notice Id: 2CA004IN THE IOWA DISTRICT COURT FOR SAC COUNTY

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 CourtDesignee, 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 partywho is not represented by counsel shall contact the Court Administrator's office (at the above phonenumber) prior to the date and time of the conference call.2. TRIAL SCHEDULING: A firm trial date shall be established in accordance with the SupremeCourt's time standards as provided by Chapter 23, Iowa Court Rules. NO CONTINUANCES SHALLBE GRANTED EXCEPT BY COURT ORDER, UPON GOOD CAUSE SHOWN.

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

/s/ Kellie Orres

--------------------------------------- Designee of the CourtClerk to provide copies ornotice of document to attorneysof record and parties appearingpro se.



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


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COME NOWthe 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 againstHenry 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 CityCouncil.

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 andupon 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 otherand 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 ERINE. McCULLOUGH, d/b/a LAW

OFFICES OF ERIN E.

McCULLOUGH,Third-party Defendants.

No. EQCV019458

MOTION TO DISMISS



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/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)

[email protected]

ATTORNEYS FOR THIRD-PARTYDEFENDANTS

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



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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

Gina C. Badding AT0000499 forNEU,MINNICH,COMITO &NEU,P.C.721 N. Main Street

P.O. Box 367

Carroll, Iowa 51401

(712) 792-3508(712) 792-3563 (fax)

[email protected]

ATTORNEYS FOR THIRD-PARTYDEFENDANTS

JOHN DRILLING,

Plaintiff,

vs.


__________________________________


vs.


OFFICES OF ERIN E.


No. EQCV019458

APPEARANCE



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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



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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 InjunctionDiscovery Due 60 days prior to trial

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

Clerk to provide copies or notice

of this document to attorneys of record,parties appearing pro se and

judge if assigned

Docket Code = OSTR



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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.

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Case Number Case TitleEQCV019458 JOHN DRILLING VS. HENRY HORSTType: ORDER SETTING HEARING

So Ordered


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COME NOWthe 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 againstWerkmeister and McCullough as one for equitable indemnificationand argues if Drilling has

a claim for relief against Horst, then Horst has a claim for relief against Werkmeister and/orMcCullough.

2. It is true that indemnification, as a form of restitution, can be implied by law in

tort claimsto shift liability for an obligation to the party who should bear ultimate responsibilityfor 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, 564N.W.2d 398, 401 (Iowa 1997).

JOHN DRILLING,

Plaintiff,

vs.


__________________________________


vs.


OFFICES OF ERIN E.


No. EQCV019458

REPLY TO RESISTANCE TO

MOTION TO DISMISS

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


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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 ofequitable 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 onconcepts 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 andequitable in the premises.

/s/ Gina C. Badding

Gina C. Badding AT0000499 forNEU,MINNICH,COMITO &NEU,P.C.

721 N. Main Street

P.O. Box 367

Carroll, Iowa 51401(712) 792-3508

(712) 792-3563 (fax)

[email protected] FOR THIRD-PARTY

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


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2RCV12IN THE IOWA DISTRICT COURT FOR SAC COUNTY

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 NepperFor Defendant/Respondent: James Van Dyke

Other: Gina BaddingInformation 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 Procedure1.903(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 courtreporter who, by order of the Court, reported the same, do hereby certify that the above and foregoingis the report of the whole proceedings upon the trial and/or hearing of the above-entitled cause madeand taken pursuant to the order and direction of the Court, in accordance with Iowa Code Section624.10. /s/Tara Gibson _________________________________________

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E-FILED 2013 DEC 02 2:06 PM SAC - CLERK OF DISTRICT COURT


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Case Number Case TitleEQCV019458 JOHN DRILLING VS. HENRY HORSTType: COURT REPORTER MEMORANDUM AND CERTIFICATE

So Ordered


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JOHN R DRILLING ,

Plaintiff,vs.HENRY HORST ,

Defendant.


EXHIBIT LIST

HearingDecember 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. Photo2. Photo

3. Canceled check4. Council agenda5. Fences, walls and vision clearance6. Permit application7. Permit application8. Description of land9. Judgment entry and decree10. Platt of Drillng's North Shore Second Addition11. Photo12. Warranty deed13. Photo14. Photo15. Photo16. Photo17. Photo18. Aerial view

Defendant's Exhibits

A.

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B.C. Council agendaD.E.F. Defendant's affidavit in resistance to request for injunctionG. Aerial view of landH. PhotoI. CD

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Case Number Case TitleEQCV019458 JOHN DRILLING VS. HENRY HORSTType: EXHIBIT LIST

So Ordered


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JOHN DRILLING, ))

Plaintiff, ) No. EQC!"#$%&

)'. ) ORDER)

HENRY HORST, ))

D(f(nant. )____________________________________)HENRY HORST, )

)T*i+Pa+t- Plaintiff, )

)

'. ))DENNIS WER/EISTER AND )ERIN E. /CCULLOUGH 010a )LAW OFFICES OF ERIN E. )/CCULLOUGH, )

)T*i+Pa+t- D(f(nant'. )

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 Plaintiffis entitled to relief which includes restraining the commissionor continuance of some act which would greatly orirreparably 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


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do, any act %iolating the other#s rights respecting the subjectof the action intending the mae the judgment ineffectual.

&n any case specifically authori'ed by statute.

&owa *ule of +i%il Procedure 1.102.&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/. %en if the fence is

constructed as Defendant proposes, an ultimate finding in fa%or of the Plaintiff on

the merits would not be ineffectual the Defendant is clearly on notice of the

Plaintiff#s positions and there would seem to be little impediment to the +ourt

reuiring 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

reuire he to access it on the west. lthough 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 pplication for Temporary

&njunction is denied.

Dated this 5th day of 6anuary, 2015.

+ler to pro%ide copies to(+ounsel of record



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Type: OTHER ORDER



So Ordered




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JOHN DRILLING, ))

Plaintiff, ) No. EQC!"#$%&

)'. ) ORDER)

HENRY HORST, ))

D(f(nant. )____________________________________)HENRY HORST, )

)T*i+Pa+t- Plaintiff, )

)

'. ))DENNIS WE/EISTER an )ERIN E. /0CULLOUGH 121a )LAW OFFICES OF ERIN E. )/0CULLOUGH, )

)T*i+Pa+t- D(f(nant'. )

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 inoled, the intention of theparties to indemnify, +nli*e the case of implied contract+alindemnity, is not releant. (nstead, the law imposesindemnity d+e to the relationship of the parties and the+nderlying loss regardless of intention. /+itableindemnification arises from non-contract+al obligations.

Wells Dairy, Inc., v. Air, &2 #.$.2d !3, !&1 '(owa 200). (owa recognies

ario+s traditional concepts of e+itable indemnity, as well as, the independent

d+ty branch of e+itable indemnity. 4oweer, here there is no basis for

e+itable indemnity +nder any of the traditional concepts and there has been no



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showing of any independent d+ty. #onetheless, some co+rts hae imposed

e+itable indemnity based +pon simple fairness. The (owa 5+preme o+rt has

neer embraced that branch of e+itable indemnification and in fact has criticied

it citing the need for stability in the law. Wells Dairy, Inc., v. Air, &2 #.$.2d

!3, !&2 '(owa 200).

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 fairness 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 todismiss in litigation, the iability of which is debatable.#either do we endorse s+staining s+ch motions, een where

the r+ling is eent+ally affirmed. ;oth the filing and thes+staining are bad ideas.

Cutler v. Klass, Whicher & Mishne, !&3 #.$.2d 1&", 1"1 '(owa 11). The

Motion to Dismiss sho+ld be oerr+led.

ORDER

IT IS THEREFORE ORDERED that the Motion to Dismiss is

oerr+led

Dated this !thday of


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Type: OTHER ORDER



So Ordered



John Drilling vs Henry Horst - Eqcv019458

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