Davisson v. Gwartney

IN THE COURT OF APPEALS OF IOWA
No. 22-1051
Filed March 8, 2023
CHARLES DAVISSON,
Plaintiff/Counter-Defendant-Appellant,
vs.
BUCKEY GWARTNEY and ELIZABETH GWARTNEY,
Defendants/Counter-Plaintiffs-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.
Charles Davisson appeals from the district court’s grant of summary
judgment and rulings on discovery. AFFIRMED.
Peter C. Riley and Patrick Joseph Riley of Tom Riley Law Firm, P.L.C.,
Cedar Rapids, for counter defendant-appellant.
Matthew G. Barnd of Bradley & Riley PC, Cedar Rapids, for counter
plainfiffs-appellees.
Considered by Bower, C.J., and Badding and Buller, JJ.
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BULLER, Judge.
This appeal concerns a property dispute between two neighbors, Charles
Davisson and Buckey and Elizabeth Gwartney, focused on fenceline
acquiescence. The district court granted summary judgment to the Gwartneys and
denied Davisson’s request to examine affiants at that stage. Finding the claimed
fence was not sufficiently definite, and that the district court did not abuse its
discretion in regulating discovery, we affirm.
I. Background Facts and Proceedings
Davisson and the Gwartneys were neighbors in Cedar Rapids. Two days
after learning the Gwartneys listed their property for sale, Davisson filed a
boundary claim alleging fenceline acquiescence. The suit created a title defect,
which interfered with the Gwartneys’ ability to sell the property.
The parties dispute whether there was ever a fence along the North/South
property boundary, which is the line at issue in litigation. At the time the lawsuit
was filed, there was a “dilapidated fence” or “remnants” of a fence that ran along
the East/West boundary, more or less perpendicular to the disputed line. Davisson
alleges that one of these East/West fence posts once also served as a post for the
claimed North/South boundary.
According to Davisson, a fence was built by the current owners’
predecessors between the properties in the early 1970s to demarcate the
boundary. Davisson claimed both parties treated the fence as the boundary for at
least ten years. In 2019, the Gwartneys conducted a survey and discovered the
fenceline alleged by Davisson was not an accurate reflection of the boundaries.
Davisson further alleged that, in late 2019, the Gwartneys removed the fence and
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then, in 2020, trespassed across the former fenceline and into what Davisson
believed was his property. Davisson claimed damages from this trespass.
The Gwartneys alleged there was never a fence along the North/South
boundary line to their knowledge. Another neighbor filed an affidavit swearing he
had “never seen any sort of fence” on the North/South property line since buying
his house. The Gwartneys also alleged that Davisson only filed the fenceline
dispute to cause problems for the Gwartneys selling their home.
In December 2020, six months after filing the lawsuit, Davisson sought to
examine the affiants who authored affidavits supporting the Gwartneys’ motion for
summary judgment and requested additional time to resist. The district court
granted Davisson additional time but did not authorize examination of affiants;
instead, the court directed Davisson to file an affidavit explaining the need to
conduct discovery pursuant to the rules of civil procedure, if in fact there was such
a need. Davisson later renewed this request, and the district court denied the
request once again because Davisson failed to file an affidavit or specify the need
for discovery to overcome the motion for summary judgment.
The Gwartneys prevailed on the boundary claim at the summary-judgment
stage, and trial was held on the trespass claim and the Gwartneys’ counterclaims
against Davisson. The jury did not find liability for either party on any claim. Both
parties appealed, but the Gwartneys voluntarily dismissed their cross-appeal
before briefing, leaving only Davisson’s appellate claims for resolution by this
court.
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II. Standard of Review
“Summary judgment is appropriate if there is no genuine issue as to any
material fact, and the moving party is entitled to judgment as a matter of law.”
Kolarik v. Cory Int’l Corp., 721 N.W.2d 159, 162 (Iowa 2006) (citing Iowa R. Civ.
P. 1.981(3)). Appellate review is for correction of errors at law. Id.As to Davisson’s procedural complaints, rulings on a motion to examine
affiants and a request for continuance to conduct discovery are both reviewed for
an abuse of discretion. See Paige v. City of Chariton, 252 N.W.2d 433, 436 (Iowa
1977); Good v. Tyson Foods, Inc., 756 N.W.2d 42, 46 (Iowa Ct. App. 2008).
III. Discussion
The General Assembly has codified boundary acquiescence by fenceline.
Iowa Code § 650.14 (2020). This claim requires that both parties or their
predecessors “acknowledge and treat the line as a boundary” and that “the
acquiescence persists for ten years.” Ollinger v. Bennett, 562 N.W.2d 167, 170
(Iowa 1997) (citation omitted). Acquiescence may be inferred, but the parties must
treat the fence as a boundary, not merely a barrier. Id. The burden of proof is “by
clear evidence.” Tewes v. Pine Lane Farms, Inc., 522 N.W.2d 801, 806 (Iowa
1994).
A claimed boundary line must be definite and specific to support a
successful acquiescence claim:
The line acquiesced in must be known, definite, and certain, or
known and capable of ascertainment. The line must have certain
physical properties such as visibility, permanence, stability, and
definite location. The edge of a hayfield is not a sufficiently visible
line, but a hedge or a roadway are visible lines.
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Heer v. Thola, 613 N.W.2d 658, 662 (Iowa 2000) (quoting 12 Am. Jur. 2d
Boundaries § 86 (1997)).
On our review, we agree with the district court that Davisson failed to
generate a disputed question of material fact on the boundary line, and we agree
that the Gwartneys were entitled to judgment as a matter of law.
In an unpublished decision, a panel of our court found that a single pine tree
(through which the property line allegedly passed) was not sufficiently definite to
establish boundary acquiescence. Post v. Barnette, No. 07-0097, 2007 WL
3376749, at *3 (Iowa Ct. App. Nov. 15, 2007). In another case, we came to the
same conclusion about a single cotton tree—distinguishing that unsuccessful
boundary claim from a successful claim in the same case defined by a ridge.
Paseka v. Weaver Farms Ltd. Liab. Co., No. 03–0417, 2004 WL 573788, at *3
(Iowa Ct. App. Mar. 24, 2004). In a decision with arguably more plaintiff-favorable
facts than this one, we concluded that even two terminal fence posts were
insufficient to establish a boundary line absent definite evidence about the fence
that allegedly ran between them. Gaffney v. Carroll, No. 02-1037, 2003 WL
22807825, at *2 (Iowa Ct. App. Nov. 26, 2003). These holdings are also consistent
with an older controlling decision from the supreme court, which found two visible
ends of drainage tile were not “sufficiently definite to run a line in accordance
therewith.” De Viney v. Hughes, 55 N.W.2d 478, 481 (Iowa 1952). A “definite
starting point” for a fence, which is how Davisson describes the evidence in his
appellate brief, is not sufficient under this case law to establish a boundary line.
Applying both the persuasive and controlling precedent, we affirm that the single
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terminal fencepost is not sufficiently definite, and this is fatal to Davisson’s claim.
Summary judgment was correctly granted.
The arguments made most forcefully by Davisson, both below and again on
appeal, concern the allegation that the Gwartneys “knocked down the fence”
allegedly at issue. The basis for this allegation is not direct evidence but the
claimed inference that, because the Gwartneys had some work done in their yard,
the fence must have been knocked down at their direction. (The Gwartneys denied
this allegation in their own affidavits.) We, like the district court, find that—even if
disputed—this fact is not material. That is because the removal of a fence is
irrelevant to a boundary-acquiescence claim, provided the plaintiff carries their
burden on the elements (including definiteness). See, e.g., Heer, 613 N.W.2d at
659, 661–62 (analyzing removed fence, ultimately finding line claimed too
indefinite); Ollinger, 562 N.W.2d at 172 (analyzing removed fence, but finding
boundary acquiescence); Sille v. Shaffer, 297 N.W.2d 379, 380–81 (Iowa 1980)
(same); Concannon v. Blackman, 6 N.W.2d 116, 118 (Iowa 1942) (same).
Because this allegedly disputed fact is not material, the district court did not err in
granting summary judgment to the Gwartneys.
This leaves only the discovery issue. Davisson failed to accept the district
court’s invitation to renew his motion by filing an affidavit pursuant to Iowa Rule of
Civil Procedure 1.981(6) spelling out the alleged need for discovery. The
procedure and requirements for such an affidavit are well-established, and failure
to file the affidavit is grounds to deny a motion. See Bitner v. Ottumwa Cmty. Sch.
Dist., 549 N.W.2d 295, 302 (Iowa 1996); Good, 756 N.W.2d at 46. Having declined
to avail himself of the opportunity below, Davisson cannot establish an abuse of
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discretion now on appeal. Even if it were not for this waiver below, we would affirm
on the basis that—even in appellate briefing—Davisson has not identified why it
was allegedly necessary to examine the Gwartneys rather than use the normal
tools of summary judgment and pre-trial discovery, such as submitting a competing
affidavit, noticing a deposition, or serving interrogatories or requests for production.
See, e.g., Iowa R. Civ. P. 1.501(1) (providing discovery methods). The district
court did not abuse its discretion.
AFFIRMED.