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Scheffert v. Scheffert

Court of Appeal of Iowa

August 21, 2013

VIRGINIA E. SCHEFFERT and THE ESTATE OF GAIL R. SCHEFFERT, Plaintiffs-Appellees,
v.
MARK J. SCHEFFERT, Defendant-Appellant.

Appeal from the Iowa District Court for Clayton County, John Bauercamper, Judge.

Mark Scheffert appeals from the district court order approving a partition sale.

David A. Lemanski, Dubuque, for appellant.

W. Richard White of Morrow & White Law Office, Waukon, for appellees.

Considered by Doyle, P.J., and Danilson and Mullins, JJ.

DANILSON, J.

Mark Scheffert appeals from the district court's ruling in which the court approved the partition sale of Scheffert farmland. The summary judgment on the partition sale was granted without objection. Mark failed to claim either the defense of homestead or partition in kind until more than three months after summary judgment was entered ordering the real estate sold. Because homestead is a personal defense, which was waived when Mark failed to assert it before the summary judgment was entered, we affirm.

I. Background Facts and Proceedings.

Mark and the two petitioners, Virginia Scheffert and the Estate of Gail Scheffert, were owners as tenants in common of approximately 122 acres of real estate located in Clayton County, Iowa. Each party owned an undivided one-third interest in the real estate.

The petitioners filed their petition in equity for partition of the real estate on August 22, 2011. On October 21, 2011, Mark filed his answer and did not assert a homestead defense or that he was entitled to homestead rights. The petitioners thereafter filed a motion for summary judgment. On March 27, 2012, the court entered summary judgment for the petitioners. In the order for summary judgment the court notes Mark "consents to the entry of summary judgment and does not contest" the motion for summary judgment. The court concluded "as a matter of law that the real estate is owned in equal shares by Gail R. Scheffert, Virginia E. Scheffert and Mark J. Scheffert; that the Petitioners are entitled to partition by sale; and that the real estate may be sold free of all claims and liens . . . ." The court appointed a referee to make private or public sale of the premises "and such sale shall be free of all liens or claims of any party; and that the referee's deed shall pass full, absolute tide in fee simple to the purchaser." The referee was to "report the proposed sale and deed to the Court pursuant to Iowa Rule of Civil Procedure 1.1217."[1]

On June 26, 2012, the referee reported the sale of the property to Tom and Pam Winch for the sum of $519, 110, and sought court authorization to finalize the sale. On July 6, 2012, Mark resisted the referee's petition, claiming for the first time that the property was his homestead.

On November 2, 2012, the district court entered its decree in which it noted no objection had been filed to the motion for summary judgment and no appeal had been taken. The court concluded the summary judgment was res judicata and approved the sale of the real estate.

Mark now appeals, contending the court erred in rejecting his homestead defense and request for partition in kind. The petitioners argue the summary judgment order was a final order, which was not appealed, ...


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