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Handee, Inc., An Iowa Corporation v. City of Dubuque

January 9, 2013

HANDEE, INC., AN IOWA CORPORATION, PLAINTIFF-APPELLANT,
v.
CITY OF DUBUQUE, DEFENDANT-APPELLEE.



Appeal from the Iowa District Court for Dubuque County, Lawrence H. Fautsch, Judge.

The opinion of the court was delivered by: Eisenhauer, C.J.

A property owner appeals from the district court's denial of injunctive and declaratory relief. AFFIRMED.

Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ.

Handee, Inc.*fn1 appeals from the district court's dismissal of its petition for injunction or, alternatively, for declaratory judgment, claiming the court erred (1) in finding Handee failed to demonstrate irreparable injury, (2) in not finding the City of Dubuque (City) violated Handee's rights under Iowa drainage law, and (3) in not granting declaratory relief. We affirm.

I. Background

Handee purchased property on the west side of Southern Avenue in Dubuque in 1997. A thirty-foot-by-eighty-foot commercial building, built in the 1960s, sits on the property parallel to the street. A fenced yard is behind the building. The property slopes toward the west. The western portion of the lot, where fill has not been added, is wooded and slopes steeply down. The property was annexed by the City in the 1970s. In May 2011, in preparation for resurfacing Southern Avenue, the City ordered replacement of a deteriorated, three-foot metal storm water culvert running under the street. At the point in front of Handee's building where the City's right-of-way for the road ended, the workmen found the culvert continued toward Handee's building, but they could see only a few feet into the culvert. It also appeared to be deteriorated. The workmen reconnected the new City culvert to the existing culvert on Handee's property.

Water drains from a hillside across Southern Avenue from the Handee property into the culvert under Southern Avenue. In late July 2011 the City received about eleven inches of rain in less than two days. A two-foot diameter circular area of the asphalt in Handee's parking lot over the junction of the new and old culverts collapsed. A depression appeared in the yard behind Handee's building near the rear fence line. Portions of the fence and the landscaping in front of the fence shifted and slipped slightly down the steep slope at the rear of the property. In September Handee filed a petition for injunction or, alternatively, for declaratory judgment. The petition sought an order enjoining the City "from directing its drainage culvert onto, under, and across" Handee's property and requiring the City to take all necessary steps to redirect the drainage water at the City's expense. Alternatively, the petition sought a declaration of its right to "block and close the stormwater drainage culvert at issue" permanently.

The matter was tried in February 2012. Concerning the request for an injunction, the court noted no experts testified on the present or future integrity of the building. "The only testimony to support an 'irreparable injury' is Mr. Koester's testimony that the drainage under his building is 'undermining the building.'" The court determined the damage caused by the heavy rain storm was not "irreparable" and Handee had not established "irreparable injury" if the injunction were not granted. See Wood Bros. Thresher Co. v. Eicher, 1 N.W.2d 655, 659 (1942) (limiting injunctive relief to cases "where the probabilities reasonably and fairly establish that the petitioner will suffer an irreparable injury if the relief is not granted").

Concerning the request for declaratory judgment, Koester, when asked what would happen if he blocked the culvert, testified, "I imagine there would be a big mess." The court denied the request after concluding granting a declaratory judgment affirming Handee's "right to permanently block and close the storm water drainage culvert would not 'terminate the uncertainty or controversy giving rise to (these) proceedings.'" See Iowa R. Civ. P. 1.1105.

II. Scope and Standards of Review

We review equitable actions de novo. Iowa R. App. P. 6.907; City of Okoboji v. Okoboji Barz, Inc., 717 N.W.2d 310, 313 (Iowa 2006). We give weight to the district court's findings, especially concerning the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.904(3)(g); Opat v. Ludeking, 666 N.W.2d 597, 604 (Iowa 2003).

"To obtain an injunction in Iowa, a plaintiff has the burden of proving a legal remedy is inadequate and an injunction is necessary to prevent irreparable injury to the plaintiff." Fettkether v. City of Readlyn, 595 N.W.2d 807, 811 (Iowa Ct. App. 1999). The burden of proof is "measured by the test of preponderance of the evidence." Iowa R. App. P. 6.904(3)(f). "The burden of proof in a declaratory judgment action is the same as in an ordinary action at law or equity." Owens v. Brownlie, 610 N.W.2d 860, 866 (Iowa 2000) (concluding the burden of proof was by a preponderance of the evidence).

III. Merits

A. Injunction. Handee contends the court erred in denying injunctive relief based on a failure to demonstrate irreparable injury. "Permanent injunctive relief is an extraordinary remedy that is granted only when there is no other way to avoid irreparable harm to the plaintiff." Lewis Invs., Inc. v. City of Iowa City, 703 N.W.2d 180, 185 (Iowa 2005). A district court may issue an injunction "when necessary to ...


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