December 21, 2016
ROGER HALVORSON and CONSTANCE HALVORSON, Plaintiffs/Counter-Claim Defendants-Appellees,
ALLEN BENTLEY and DIXIE BENTLEY, Defendants/Counter-Claim Plaintiffs/Cross-Claim Plaintiffs-Appellees/ Cross-Appellants, and KERNDT BROTHERS SAVINGS BANK, Defendant/Cross-Claim Defendant-Appellant/Cross-Appellee.
from the Iowa District Court for Clayton County, Andrea J.
Kerndt Brothers Savings Bank appeals and land purchasers
Allen and Dixie Bentley cross-appeal the order of the
district court finding that the Bank breached its warranty
under its deed to the Bentleys because it represented the
easement on the adjoining land it sold to Roger and Constance
Halvorson permitted parking when the language of its contract
with the Halvorsons only expressly mentioned
"access." JUDGMENT VACATED IN PART, AFFIRMED IN
PART, AND REMANDED WITH DIRECTIONS.
G. Larson of Larson Law Office, Decorah, and James A. Garrett
of James A. Garrett Law Office, Waukon, for
appellant/cross-appellee Kerndt Brothers Savings Bank.
Robison and Anne E.H. Kruse of Allen, Vernon & Hoskins,
P.L.C., Marion and McGregor, for appellees/cross-appellants
T. Heavens of McClean & Heavens Law Offices, Elkader, for
by Danilson, C.J., and Doyle and McDonald, JJ.
dispute in this case concerns an easement on land Kerndt
Brothers Savings Bank (Bank) sold to Roger and Constance
Halvorson. The easement was granted for the benefit of the
adjoining lot of land, which the Bank sold to Allen and Dixie
Bentley. The central issue is whether or not the easement
grants the Bentleys parking privileges. Following trial on
the Halvorsons' petition for declaratory judgment, along
with the Bentleys' cross-claims against the Bank, the
district court concluded the easement only granted the
Bentleys "access" to their land-meaning ingress and
egress only, not parking. Because the warranty deed the Bank
delivered to the Bentleys does not limit the easement to
access only, the court found the Bentleys were entitled to
the consideration they paid to the Bank for the easement they
thought they were getting-one that allowed parking, and
awarded the Bentleys $7500 in compensatory damages. The court
also awarded the Bentleys their attorney fees for defending
the Halvorsons' action. The court then entered a judgment
against the Bank in favor of the Bentleys for $21, 757.28.
Bank now appeals the district court's ruling in favor of
the Bentleys, arguing both the Bentleys and the Halvorsons
received the easement they bargained for with the Bank and,
therefore, it did not breach any warranty deed. The Bentleys
cross-appeal, challenging the court's determination the
easement was for ingress and egress only.
facts of the case are essentially undisputed. In 2009, after
its mortgagee defaulted on a loan, the Bank acquired title to
the real estate that secured the mortgage loan. The property
consisted of several lots in the picturesque river town of
Marquette. A two-level duplex was located on one of the lots.
A house that was in "very bad shape" was located on
an adjoining lot to the west. The two buildings were situated
on a steep hill on the south side of the west end of North
Street. The house and the duplex were separated by a path
that was used as a driveway (Driveway), shown in the aerial
photo below. The Driveway inclines from North Street at
a grade of approximately ten to fifteen percent and flattens
out near its southern terminus.
making the duplex conversion, the mortgagee "cut the
roof off and raised it up so [he] could have an
upstairs." He then "added on to make it a duplex,
" and he "took the [interior] stairs out of the
house." Without interior stairs, there was no access
between units inside the duplex. To provide access to the
upper unit, the mortgagee installed an exterior door on the
south side of the unit and built a walkway from that exterior
door to the southern terminus of the Driveway. Because of the
incline and the topography, the walkway was built in a
southwest direction where it eventually met the Driveway at
an acute angle. The mortgagee lived in the upper-level unit
of the duplex and parked his vehicle at the end of the
Driveway near the walkway. The mortgagee made the lower level
of the duplex into a rental unit. Another driveway, which
could hold two or three vehicles, existed on the north side
of the lower level of the duplex. Parking in front of the
duplex on North Street would obstruct the driveway to the
the Bank acquired the property, it decided to sell the
property in separate lots, with the house and duplex each in
its own separate lot. To that end, the Bank hired Roger Mohn,
a civil engineer and professional land surveyor, to identify
the exterior lot lines of the property so it could divide the
property into lots accordingly.
upon the boundaries of the existing lots, which can be seen
in the aerial photo above, the Driveway and most of the
walkway fell within the house lot-not the duplex lot. The
Bank determined an easement would be established on the house
lot to allow the future owners of the duplex lot to reach the
entrance of the duplex's upper-level unit. Based upon the
topography of the house lot, the existing Driveway path and
walkway were used for determining the placement of the
easement. After the surveyor informed the Bank's
representative James Kerndt that easements were normally
between ten to twelve feet wide, it was decided the easement
would be twelve feet wide.
February 2, 2010, the plat of the lots prepared by the
surveyor was recorded-without the easement shown or described
therein. Though the surveyor provided to the Bank a metes and
bounds description of the centerline of the proposed
easement, the Bank did not have that description recorded
with the plat. The proposed easement's written
description stated, in relevant part: "A twelve (12)
[sic] wide easement located in Lot Ten (10) of Block Five (5)
and in vacated Third Street . . . ." The description
went on to set forth the metes and bounds of the centerline
of the easement. The proposed easement did not include the
terms "access, " "ingress, "
"egress, " or "parking"; in fact, no
purpose for the easement was given in the written
Halvorson contacted Kerndt at the Bank about buying some of
the lots on the property. The Halvorsons live three blocks
from the property, and they operate a winery on North Street
near the property. Roger wanted to preserve the hillside
where the house was located and "had strong feelings
about preventing anyone from developing that hillside."
Roger was advised that if he did not purchase both the house
lot and the duplex lot, an easement across the house lot
would be necessary to allow the future owners of the duplex
lot access to the duplex's upper-level unit. On February
20, 2010, the Halvorsons made and the Bank accepted a written
offer to purchase several lots of land, including the house
lot but not the duplex lot. The offer stated on the first
page that it was subject to "an easement to be placed
approximately in existing driveway for access to adjacent
house upper level." Handwritten next to the above quoted
sentence were the words "Exhibit C." Exhibit
"C" was attached to the agreement and set forth the
metes and bounds description of the centerline of the
easement exactly as drafted by the surveyor.
Bank listed the duplex lot for sale with a realtor. Allen and
Dixie Bentley contacted another realtor, who was with the
same realty agency as the Bank's realtor, to view the
duplex lot, and they and their realtor viewed the property
together. The Bentleys liked the property but were concerned
about the parking situation for the upper-level unit of the
duplex. The Bentleys' realtor expressed the Bentleys'
concerns about the parking situation to the Bank's
realtor, and the Bank's realtor clarified with Chad
Curtain, a representative of the Bank, that an easement would
be drawn up "to amend the problem." The Bank's
realtor believed that "parking was involved in the
negotiations, " though it "did not end up being in
the easement description." The Bank's realtor
believed the purpose of the easement was for parking.
Ultimately, the Bentleys decided to purchase the duplex lot
and the closing occurred sometime around the beginning of
July 2010. The warranty deed for the duplex lot was recorded
on July 12, 2010, and it sets forth the metes and bounds
description of the easement exactly as proposed by the
surveyor. The easement's description lacks any explicit
reference to "access, " "parking, " or
appears the Halvorsons never had a formal closing. The Bank
had quitclaimed some of the property the Halvorsons intended
to purchase "to provide [them] basically with possession
while the [Bank] continued its efforts to foreclose on the
property." The Halvorsons received a warranty deed for
the house, as well as other land they purchased from the
Bank. The deed was signed by the Bank's representatives
July 14, 2010 and recorded July 19, 2010. The Halvorsons'
warranty deed makes no reference to the easement.
their purchase, the Bentleys used the Driveway as a driveway.
They parked their vehicles at the end of the driveway near
the walkway. At some point, the Halvorsons had the house torn
down, creating more open area by the Driveway. Sometime
thereafter, a neighbor contacted Roger and told him,
"You better come up here. You got a parking lot up
here." Roger went to investigate and found "there
were four cars up there. There was the Bentleys' pickup,
. . . and a car, and a couple other pickups. So there [were]
a number of people parked . . . on the lots up there."
And the battle began.
the parties could not reach an agreement, the Bentleys
contacted the surveyor and requested that he draw a plat of
the easement based upon the metes and bounds set forth in
their deed. The surveyor then platted the easement and lots.
That platting is distilled into the following illustration:
2011, the Halvorsons filed a petition "in equity"
and "for declaratory judgment" against the Bentleys
and the Bank. The Halvorsons requested the district court
declare "the nature and scope of the easement [was]
limited to ingress and egress only and that it may not be
used by the Bentleys for any other purpose, " declare
the "size and dimensions of the easement [were] limited
to the narrowest possible [twelve]-foot strip of land, "
and find the Bank negligent and award the Halvorsons damages.
The Bank admitted in its answer that its "understanding
and intent with respect to the [Bentleys'] easement"
was that the Bentleys could come and go across the easement
but had no right to park there. The Bank denied it was
negligent and affirmatively asserted it did not owe the
Halvorsons any duty with respect to the Bentleys'
easement "in that the Bentley transaction was fully
consummated prior to the [Halvorsons'] acquisition"
of the house lot that was subject to the easement.
Bentleys answered and asserted counterclaims against the
Halvorsons, including a claim that the Halvorsons
intentionally damaged the Bentleys' property. The
Bentleys also asserted cross-claims against the Bank for
breach of warranty and breach of contract. The Bank answered
the Bentleys' cross-claims and admitted "that no
express limitation on the scope of the easement [was] set
forth on the face of the deed, " but it affirmatively
stated "the real estate description for the easement
[made] it clear that motor vehicle access [was] not included
within its scope." The Bank denied that "there was
a meeting of the minds between [the] Bentleys and the [Bank],
through its employed real estate agent, that the easement
would be used for travel over and across the servient estate,
and for parking a vehicle thereon."
trial was held in May 2014. At the trial's outset, the
court noted it had before it "a blend of legal and
equitable claims, " and it advised the parties it was
"going to try this as if the whole [was] in equity,
" but that when evidence was offered to which there was
an objection, each party should "state your
objection" and "the basis for your objection so
that it's in the record." The court stated it would
admit the evidence subject to the objections and explained it
would not consider irrelevant or inadmissible evidence with
respect to each claim in making its decision.
trial, Roger Halvorson admitted he read the legal description
of the easement, but he testified he "just assumed that
the easement was going to go closer to the property line
rather than . . . meandering back through the other two
lots." Roger did not know the prior owner/mortgagee had
been parking in the Driveway; Roger testified he had
"never visualized the driving and parking
situation" and believed "[a]ccess was by foot
traffic primarily." Curtain testified he told the
Bank's realtor that he "believed there was going to
be an easement, " but he did not "have any
specifics." The Bank's realtor testified she did not
remember Curtain expressly using the word "parking,
" but she believed it was Curtain's understanding
that the purpose of the easement was for parking, testifying
"[t]hat was the purpose of the easement."
trial, the court entered its decree on March 3, 2015, finding
the easement created by the Bank was for "access"
only, meaning the right to ingress and egress and not for
parking. The court noted that the Bentleys' deed does not
define any purpose for the easement, and it relied upon the
Halvorsons' purchase agreement which only references
"access." The court found the easement was intended
to be twelve feet wide. Additionally, the court found this
easement was what the Halvorsons bargained for, so the Bank
was not negligent in this respect.
the Bentleys, the court found the easement set forth in their
warranty deed was not accurate because the easement omits the
"access" limitation language that is included in
the Halvorsons' purchase agreement, which predated the
Bentleys' deed. Since the Bank chose to include the
easement's description in the warranty deed it gave to
the Bentleys, the court found the Bank had a duty to defend
the Bentleys in the Halvorsons' declaratory-judgment
action concerning the easement, and it awarded the Bentleys
attorney fees of $14, 257.28. The court also found the Bank
was liable "for the amount of consideration that [the
Bentleys] paid for the easement described in their warranty
deed rather than the easement that was created" in the
purchase agreement between the Bank and the Halvorsons. The
court found $7500 was "approximately what the Bentleys
paid in the expectation that they would receive the easement
described in their warranty deed rather than the more limited
easement that they actually received." The court
concluded the Bentleys did not prove any breach of contract
separate from the warranty deed, and it entered a final
judgment in favor of the Bentleys for $21, 757.28 against the
Bank. The court also denied the Bentleys' counterclaims
against the Halvorsons.
March 9, 2015, the Bank filed a motion pursuant to Iowa Rule
of Civil Procedure 1.1007 requesting additional time to file
post-trial motions. It stated it intended "to file one
or more motions pursuant to [rule] 1.904 and/or 1.004
(sic)" and gave reasons it asserted were good cause for
the extension. Neither the Bentleys nor the Halvorsons filed
a resistance, and the court on March 17, 2015, entered its
order granting the motion, extending the deadline for
post-trial motions for all parties to April 17, 2015.
April 17, 2015, the Bank filed its rule 1.904(2) motion
challenging the court's findings and
conclusions. Among other things, it argued the court
erred in ignoring its evidentiary objections under the parol
evidence rule and "in imposing a warranty of an easement
upon the parties which the parties at the time of the
[warranty deed] did not agree upon." The Bentleys filed
their resistance to the motion on April 27, 2015, which
asserted, among other things, that the Bank's motion was
"a poorly written, hurried and confused scattergun-shot
of supposed judicial errors, presenting no persuasive
argument to change the basis for the [district court's]
award of damages." The Halvorsons did not respond. On
May 1, 2015, the court denied the Bank's motion.
Bank filed its notice of appeal on May 20, 2015. The Bentleys
filed their notice of appeal the next day. On its own motion,
the Iowa Supreme Court determined the Bentleys' notice
should be treated as a notice of cross-appeal. It
subsequently transferred the case to this court in May 2016,
and it was submitted following oral argument in November
Scope and Standard of Review.
the district court tried a declaratory judgment proceeding in
equity or at law is determinative of our scope of review on
appeal." Ernst v. Johnson Cty., 522
N.W.2d 599, 602 (Iowa 1994). Generally, "the
determination of easement rights is equitable, "
Gray v. Osborn, 739 N.W.2d 855, 860 (Iowa
2007), prompting a de novo review, see Ernst, 522
N.W.2d at 602. However, "an action on contract is
treated as one at law." Van Sloun v. Agans
Bros., 778 N.W.2d 174, 178 (Iowa 2010). Additionally,
"we review a decision by the district court to admit
oral evidence of a contract under an exception to the statute
of frauds for correction of errors at law." Pavone
v. Kirke, 801 N.W.2d 477, 491 (Iowa 2011).
both legal relief and equitable relief are demanded, the
action is ordinarily classified according to what appears to
be its primary purpose or its controlling issue."
Van Sloun, 778 N.W.2d at 179 (internal quotation
marks and alterations omitted). If "an action at law and
an action in equity are consolidated and tried in equity, our
review of both matters is de novo." In re Marriage
of Tigges, 758 N.W.2d 824, 826 (Iowa 2008) (citing
Knigge v. Dencker, 72 N.W.2d 494, 495 (Iowa
1955)). "Where there is uncertainty about the nature of
a case, a litmus test we use in making this determination is
whether the trial court ruled on evidentiary objections. In
addition, where the trial court labels its ruling a
'decree, ' this is an indication it tried the matter
in equity." Ernst, 522 N.W.2d at 602.
the district court heard all evidence, subject to objections,
but did not expressly rule upon the objections. Additionally,
it issued a "Judgment and Decree" following trial.
We believe the relevant factors considered together indicate
the court tried this matter in equity, and our review is
therefore de novo. See id. "This means that the
district court's findings of fact are not binding, but we
will 'give deference to those findings because the
district court had the opportunity to assess the credibility
of the witnesses.'" Horsfield Materials,
Inc. v. City of Dyersville, 834
N.W.2d 444, 452 (Iowa 2013) (citation omitted).
Bank appeals the district court's ruling finding it owed
a duty to the Bentleys concerning the easement, asserting the
court considered impermissible evidence in reaching that
decision. The Bentleys cross-appeal, arguing the court erred
in finding the easement does not include parking but
correctly determined the Bank owed them a duty based upon
their warranty deed. The Halvorsons responded to the
Bank's appeal requesting the district court's ruling
be affirmed in all respects. They also responded to the
Bentleys' cross-appeal, asserting the Bentleys'
appeal was untimely. Alternatively, they argued the court
correctly found the easement was created for access only and
Halvorsons concede the Bentleys filed "a timely notice
of cross-appeal." However, because some of the issues
the Bentleys raise on appeal were not raised by the Bank in
its direct appeal and in its rule 1.904(2) motion, the
Halvorsons assert the Bentleys were required to appeal their
claims within thirty days of the district court's March
3, 2015 decree. Because the Bentleys' appeal was not
filed within that time, the Halvorsons believe we must
dismiss the Bentleys' appeal on those claims for lack of
appellate jurisdiction. The Bank joins the Halvorsons'
claim that the Bentleys' appeal was untimely, arguing the
Bentleys' "new issues constitute a
'direct appeal' disguised as a 'cross
appeal.'" In response, the Bentleys argue they had
thirty days from the time the district court filed its ruling
denying the Bank's rule 1.904(2) motion to file their
timeliness of the filing of a notice of appeal is a
jurisdictional question." Homan v.
Branstad, ___ N.W.2d ___, ___ 2016 WL 6650114, at *2
(Iowa 2016). If the notice of appeal is not filed within the
proper time period, appellate courts "do not have
subject matter jurisdiction over the appeal." McKee
v. Isle of Capri Casinos, Inc., 864
N.W.2d 518, 525 (Iowa 2015). Consequently, "[a]n appeal
taken after the deadline must normally be dismissed."
Concerned Citizens of Se. Polk Sch.
Dist. v. City Dev. Bd.
of State, 872 N.W.2d 399, 402 (Iowa 2015); see
also Explore Info. Servs. v. Court
Info. Sys., 636 N.W.2d 50, 54 (Iowa 2001)
(stating the "rule is mandatory and jurisdictional"
and requires appellate courts "to dismiss a case not
meeting these deadlines even if the parties do not raise the
Rule of Appellate Procedure 6.101(1)(b) requires a notice of
appeal be filed within thirty "days after the filing of
the final order or judgment" unless a proper
post-trial motion was "timely filed under [rule]
1.904(2) or [rule] 1.1007, " in which case "the
notice of appeal must be filed [thirty] days after the filing
of the ruling on such motion." See Homan, ___
N.W.2d at ___. Rule 1.904(2) requires that a motion brought
under it be filed "within the time allowed for a motion
for a new trial." Rule 1.1007 provides that motions
brought under rule 1.1004, which governs the requirements for
filing a motion for a new trial, "be filed within
fifteen days after filing of the verdict . . . unless the
court, for good cause shown and not ex parte, grants an
additional time not to exceed [thirty] days."
the district court was permitted to extend the deadline for
filing post-trial motions upon the Bank's rule 1.1007
motion for good cause, which was not challenged by the
Halvorsons or the Bentleys. The court pushed out the deadline
for filing post-trial motions thirty days from the date it
filed its order granting the motion, expressly extending the
deadline for filing post-trial motions for all parties to
April 17, 2015. Because the Bank filed its rule 1.904(2)
motion on April 17, 2015, its motion was timely filed.
See also Blessum v. Howard Cty. Bd. of Sup'rs,
295 N.W.2d 836, 840-41 (Iowa 1980) ("Because the order
extending time to file post-trial motions was valid . . .
under rule 247, defendant's post-trial motions filed
thirty days after verdict were timely and notice of appeal
therefrom was timely, giving us jurisdiction of this
its motion was not proper, the time to file its notice of
appeal would not have been tolled. See Baur v.
Baur Farms, Inc., 832 N.W.2d 663, 669 (Iowa
2013). A rule 1.904(2) motion is proper when it seeks
"to obtain a ruling on an issue that the court may have
overlooked, or to request the district court enlarge or amend
its findings when it fails to comply with rule
1.904(1)." Id. It is not proper if it merely
"amounts to nothing more than a rehash of legal issues
previously raised." Id.
Bank's rule 1.904(2) motion is not a model of clarity.
Nevertheless, it highlighted at least one legal issue not
explicitly addressed in the district court's
decree-whether certain evidence was admissible considering
the parol evidence rule, an issue it challenges on appeal.
Consequently, we conclude that the Bank's rule 1.904(2)
motion was proper and tolled the time for it to file its
appeal. See, e.g., Sierra Club Iowa Chapter v.
Iowa Dep't of Transp., 832 N.W.2d 636, 642 (Iowa
2013) (finding rule 1.904(2) motion timely filed where legal
issue raised was not addressed by district court); In re
Estate of Hord, 836 N.W.2d 1, 5 (Iowa 2013) (same).
Accordingly, the Bank's notice of appeal was timely
neither the Bank nor the Halvorsons challenge the timeliness
of the Bank's appeal, both argue the Bentleys' appeal
was required to be filed within thirty days of the
court's March 2015 decree, essentially because the
Bentleys raised new issues in their cross-appeal. Both cite
Harvey v. Leonard, 268 N.W.2d 504, 517 (Iowa 1978),
in support of their argument. That case presented the
following procedural posture:
Defendants William C. and Eugene Daubendiek appealed from the
judgment and decree of the trial court, and the original
plaintiff Ruth Harvey cross-appealed as to all of the
defendants[, including defendants F.W. Daubendiek and Letha
Leonard]. F.W. Daubendiek and Letha Leonard have not
appealed, and filed a motion to dismiss the cross-appeal
against them, since it was not filed within [thirty] days
after the final decree was entered and was not a cross-appeal
as to them because they did not appeal.
. . . .
The final judgment in this case was entered on July 3, 1975.
Defendants William C. and Eugene Daubendiek filed timely
notice of appeal on August 4, 1975, in accordance with [the
Iowa Rules of Civil Procedure].
Harvey, 268 N.W.2d at 511, 517. At that time, the
rules stated "that a party may appeal within [thirty]
days of a final judgment and may cross-appeal within the same
[thirty]-day period or within five days of an appeal."
Id. at 517 (discussing the rule, then numbered 335).
The court stated Harvey filed a notice of cross-appeal on
August 7, 1975, "which was within the time for a
cross-appeal but not for a direct appeal." Id.
Because "Leonard and F.W. Daubendiek did not appeal,
" the court held Harvey's "cross-appeal against
them was not timely under [the rule]" and granted the
motion to dismiss. Id.
Harvey has not been expressly overruled on this
point, we think later cases demonstrate Harvey is no
longer good law for this proposition. In State ex rel.
Iowa Department of Transportation v. General Electric Credit
Corp., 448 N.W.2d 335 (Iowa 1989) ("General
Electric"), the Iowa Supreme Court was presented
with the following scenario:
The Iowa Department of Transportation (IDOT) filed an action
against three separate corporate entities regarding their
failure to register and pay statutorily-required fees for the
operation of an aircraft within the state. The district court
granted summary judgment in favor of the IDOT against two of
the defendants, Heritage and G.E. Delaware, but refused to
pierce the corporate veil and granted summary judgment in
favor of the third defendant, G.E. Capital.
Heritage and G.E. Delaware filed a notice of appeal on the
twenty-ninth day after the district court's judgment.
IDOT filed a notice of cross-appeal more than thirty days
after the district court judgment, seeking to appeal from
that portion of the district court's ruling which granted
summary judgment on behalf of G.E. Capital. G.E. Capital
sought to dismiss the cross-appeal as untimely, claiming that
because G.E. Capital was not a party to the original appeal,
the filing of the IDOT was not a cross-appeal but in fact
should be treated as an original appeal.
Stew-Mc Dev., Inc. v. Fischer, 770 N.W.2d 839, 845
(Iowa 2009) (citations omitted) (summarizing Gen.
Elec., 448 N.W.2d at 338-40). The IDOT argued the
relevant rule "specif[ying] the time within which a
cross-appeal may be taken, " then Iowa Rule of Appellate
Procedure 5(a), permitted "a cross-appeal against any
party to the judgment appealed from, whether appellant or
non-appellant." Gen. Elec., 448 N.W.2d at 338
the court agreed with the IDOT without mentioning
Harvey, only stating it found "no Iowa case on
point." See id. 338-40. Instead, the court
noted the rule did not define the term "cross-appeal,
" "designate the parties against whom a
cross-appeal may be filed, " or "extend or restrict
the right of cross-appeal to any particular litigants."
Id. at 338-39. Rather, the rule "merely
direct[ed] that a cross-appeal-an undefined term-must be
taken within the specified time." Id. at 339.
Finding the rule ambiguous on the point, and construing the
rule "liberally so that [the controversy could] be
fairly and efficiently determined, " the court reasoned:
Allowing cross-appeals of this type would streamline the
appellate process by making "precautionary appeals"
by a party that prevailed at the trial level against some,
but not all, adverse parties unnecessary. The risk of any
party suffering injustice because of a last-minute appeal
would be minimized, because a party's stake in the
litigation could still be protected by cross-appeal if
portions of the judgment favorable to it are put in jeopardy
In this case, for example, the [IDOT] may well have chosen
not to appeal the judgment in favor of G.E. Capital only
because it believed that the judgment against Heritage and
G.E. Delaware was surely collectible. That judgment was
finally appealed one day before the time limit for appeal
expired. Were we to adopt the defendants' construction of
[the rule], the [IDOT] would have been left with only one day
to appeal the portions of the judgment adverse to it so as to
protect its rights in the event the portions of the judgment
favorable to it were reversed on appeal. We refuse to place
such a high premium on the gamesmanship likely to occur under
such a rule.
Moreover, litigants in the position of G.E. Capital in this
case would not be unfairly burdened by allowing cross-appeals
of this type against them under the Iowa rules. After all,
[the rule] allows a cross-appeal only if it is filed-at the
very latest-no more than five days beyond the thirty day time
limit for an initial appeal. The advantages of our court
considering a judgment in its entirety outweigh any
inconvenience suffered by non-appellants who, like G.E.
Capital, are joined in the fray by cross-appeal within the
short time allowed for cross-appeals under the Iowa rules.
We hold that for purposes of appeal under Iowa Rule of
Appellate Procedure 5, an action involving multiple parties
will be considered to result in a single judgment, so that
where one of the several parties to the action appeals and
jeopardizes any part of the judgment, a party may
cross-appeal against any other party to the litigation within
the time allotted for cross-appeals. The [IDOT's]
cross-appeal, therefore, is properly before the court.
Id. at 339-40 (citations omitted).
court revisited General Electric in Stew-Mc
Development, where a similar claim was raised:
Stew-Mc Development asserts that the Fischers seek to appeal
issues separate and apart from the issues appealed by the
Schmitts and that, as a result, their action should properly
be classified as an appeal, not a cross-appeal. If the
Fischers' filing is characterized as an appeal it is
untimely because it was not filed within thirty days of the
final judgment. If classified as a cross-appeal, however, it
complies with the rule because it was filed within five days
of the Schmitts' appeal.
770 N.W.2d at 845. Stew-Mc Development argued General
Electric was distinguishable because, in General
Electric, "the party bringing the cross-appeal was
a litigant with respect to the claims challenged in the
original appeal." Id. at 846. Unlike the
cross-appellant in General Electric, "the
Fischers [were] attempting to file a cross-appeal against a
party that was not part of the original appeal."
Id. at 846. Stew-Mc Development also argued the
Fischers' claim in their cross-appeal was "factually
and procedurally independent of the claims appealed in the
Schmitt's original appeal." Id. The Iowa
Supreme Court was not persuaded, quoting its holding in
General Electric and finding "no reason to
depart from this holding now." Id. Again,
without any reference to Harvey, the court found the
Fischers' cross-appeal was timely filed. See id.
rules now provide "any notice of cross-appeal must be
filed within the [thirty]-day limit for filing a notice of
appeal, or within [ten] days after the filing of a notice of
appeal, whichever is later." Iowa R. App. P. 6.101(2).
Here, the district court's ruling on the Bank's
1.904(2) motion was filed May 1, 2015. The Bank filed its
timely notice of appeal on May 20, 2015. Irrespective of the
issues raised by the Bentleys or the parties they appeal
against, General Electric and Stew-Mc
Development establish that once the Bank timely filed
its notice of appeal, the Bentleys had ten days thereafter to
file their own notice of appeal. The reasoning of those cases
make sense; perhaps the Bentleys would have stood upon the
judgment entered in their favor against the Bank had the Bank
not appealed. But once the Bank appealed and required them to
defend the appeal, there was no harm in filing their own
Bentleys filed their notice of appeal on May 21, 2015, one
day after the Bank filed its notice. Thus, the Bentleys'
notice of appeal was timely filed. See also Blessum,
295 N.W.2d at 841 ("Because defendants' appeal was
timely, plaintiff may cross-appeal in accordance with [the
rules]. Plaintiff properly filed his notice of cross-appeal
within five days after the appeal. The cross-appeal also was
taken from the trial court's final judgment on count V,
as well as from the denial of his post-trial motions. Because
the cross-appeal was properly taken from the final judgment
on count V, we find that we also have jurisdiction to
entertain plaintiff's cross-appeal.").
to the Bank's evidentiary claims concerning the statute
of frauds and parol evidence rule. Application of these rules
must be discussed in context, given the Bentleys'
challenge of the district court's determination the
easement is for ingress and egress only, not parking.
Statute of Frauds.
[A]n easement is a liberty, privilege, or advantage in land
without profit existing distinct from ownership of the soil
and because it is a permanent interest in another's land
with the right to enter at all times and enjoy it, it must be
founded upon a grant by writing or prescription.
Indep. Sch. Dist. of Ionia
v. De Wilde, 53 N.W.2d 256, 261 (Iowa 1952).
Because an express easement must be founded upon a grant by
writing, it falls within the statute of frauds. See
Gray, 739 N.W.2d at 861 (citing Iowa Code § 622.32
(2007)). "The statute of frauds, which is no more than a
rule of evidence, 'governs, not the validity of a
contract, but only the manner in which one may be
proven.'" Garland v. Branstad, 648
N.W.2d 65, 71 (Iowa 2002) (citation omitted). Iowa's
statute of frauds provides:
Except when otherwise specially provided, no evidence of the
following enumerated contracts is competent, unless it be in
writing and signed by the party charged or by the party's
. . . .
3. Those for the creation or transfer of any interest in
lands, except leases for a term not exceeding one year. . . .
Iowa Code § 622.32 (2010). "The Iowa statute of
frauds does not render oral promises invalid. Rather, the
statute is a rule of evidence that renders incompetent oral
proof of such promises." Pavone, 801 N.W.2d at
the written warranty deed between the Bank and the Bentleys
contains an easement that is legally described. The Bank does
not dispute there is an easement. Clearly the statute of
frauds has been satisfied here, and the Bank's argument
concerning the statute of frauds is without merit.
the construction of written contracts, the cardinal principle
is that the intention of the parties must control; and except
in cases of ambiguity, this is determined by what the
contract itself says. This rule is applicable to construction
of easement grants." Wiegmann v.
Baier, 203 N.W.2d 204, 208 (Iowa 1972) (internal
citation omitted). "Ambiguity exists if, 'after the
application of pertinent rules of interpretation to the face
of the instrument, a genuine uncertainty results as to which
one of two or more meanings is the proper one.'"
Cairns v. Grinnell Mut. Reins.
Co., 398 N.W.2d 821, 824 (Iowa 1987) (citation omitted).
"The parol evidence rule is not violated when extrinsic
evidence is received to assist the trial court in determining
the meaning of contractual language. The rule does not come
into play until by interpretation the meaning of the writing
is ascertained." Westway Trading Corp.
v. River Terminal Corp., 314 N.W.2d 398,
402 (Iowa 1982) (citations omitted).
we essentially have three contracts at issue-the two warranty
deeds given by the Bank and the purchase agreement between
the Bank and the Halvorsons. Each describes the easement in
different terms, and there is uncertainty as to which meaning
controls. Because of the ambiguity between the three
contracts, we conclude the court's admission and use of
parol evidence was permissible. We find no error by the
district court in this respect.
district court found the easement "was created in the
Offer to Buy Real Estate and Acceptance that Halvorson and
[the Bank] signed on February 20, 2010." Though the
purchase agreement came first in time, we do not agree that
its reference to the creation of an easement determines the
meaning of the easement set out in the Bentleys' deed.
First, "an instrument affecting real estate is of no
validity against subsequent purchasers for a valuable
consideration, without notice . . . unless the instrument is
filed and recorded in the county in which the real estate is
located, as provided in [chapter 558]." Iowa Code §
rights in property may exist apart from filings in the
Absent express notice given, a land purchaser generally has
three established sources of information to which he should
turn for ascertainment of existing rights in any property he
proposes to buy: (1) the records in the County Recorder's
office where basic rights involved are recorded; (2) other
public records, to discover existence of rights not always
disclosed in the County Recorder's office, i.e.,
judgments, liens and taxes; and (3) an inspection of the land
itself, to determine by observation any rights which may
exist apart from our recording system by virtue of occupancy,
use or otherwise.
Nat'l Props. Corp. v. Polk Cty., 351 N.W.2d 509,
511 (Iowa 1984) (quoting Bartels v. Hennessey Bros.,
Inc., 164 N.W.2d 87, 94 (Iowa 1969)). Thus "notice,
" as referred to in section 558.41(1), may be either
actual or constructive. Id. "Constructive
notice is given by compliance with the recording statutes,
" whereas "[a]ctual notice depends upon the
purchaser having either actual knowledge of the easement or
knowledge of sufficient facts to charge him or her with a
duty to make inquiry that would reveal the existence of the
easement." Id. If a prudent person had inquired
with ordinary diligence and found actual notice of rights
claimed adversely by another, the land purchaser is charged
with having that notice. See id.; see also
25 Am. Jur. 2d Easements and Licenses § 81
Bank, as owner and seller of both lots, had the right to
grant future owners of the duplex lot an express easement
over the house lot. See 25 Am. Jur. 2d Easements
and Licenses § 12. Though its purchase agreement
with the Halvorsons occurred first in time, the purchase
agreement was not recorded. Moreover, the Bentleys'
inspection of the land revealed that the mortgagee was using
the Driveway and parking his vehicles near the walkway. This
led them to inquire what rights they would have over the
house lot if they purchased the duplex lot, and they were
never told by the Bank their rights would be limited to
"access" only nor were they given a copy of the
purchase agreement between the Bank and the Halvorsons.
Consequently, though that purchase agreement came first in
time, it does not change the easement created by the Bank in
the warranty deed it gave to the Bentleys.
is no dispute that the Bentleys' deed with the express
easement was properly recorded before the official sale to
the Halvorsons took place. It was the Halvorsons
responsibility to investigate-or perhaps the Bank's
burden to inform the Halvorsons of-the existence and scope of
the easement and determine what rights it afforded the
duplex-lot owners before they purchased the property. Had
they reviewed the Bentleys' recorded deed, or even asked
the Bank about the easement Roger knew the Bank was creating,
they would have had notice the easement was established by
the Bank on the house lot without any limitation or express
purpose. For these reasons, we conclude the Bentleys'
deed, given by the Bank, created the easement and controls
Bentleys' deed states there is an easement and gives the
metes and bounds of the easement. However, besides the
obvious omission of the word "foot, " the
Bentleys' deed does not state any purpose for the
easement. It does not even contain the word
"access." Does that mean the easement is ambiguous?
We think not.
Where the existence of an easement is in general terms, it
implies a grant of unlimited reasonable use such as is
reasonably necessary and convenient and as little burdensome
as possible to the servient owner. The holder of an easement
may make the way as useable as possible for the purpose of
the right owned so long as he or she does not increase the
burden on the servient tenement or unreasonably interfere
with the rights of the owner thereof. A court's easement
overburdening analysis will evaluate whether it is reasonable
to conclude that a particular use was within the
contemplation of the parties to the conveyance and, in that
context, whether the contested use made of the servient
estate by the dominant estate exceeds the rights granted to
Id. § 62 (footnotes omitted); see also
Jon W. Bruce & James W. Ely, Jr., The Law of
Easements & Licenses in Land § 8:3 (2016)
("Despite the professed emphasis on the binding effect
of precise language, the parties are deemed to have
contemplated the easement holder's right to do whatever
is reasonably convenient or necessary in order to enjoy fully
the purposes for which the easement was granted. What
constitutes reasonable usage is a question of fact."
And it is the general rule that where a right of way is
granted it may be used for any purpose to which the land
accommodated thereby may reasonably be devoted, unless the
grant contains specific limitations and the grantee can avail
himself of modern inventions, if by so doing he can more
fully exercise and enjoy or carry out the object for which
the easement was granted.
Wiegmann, 203 N.W.2d at 208. Given the general terms
of the easement, we think a grant of unlimited reasonable use
as is necessary and convenient was intended, which included
would also reach the same result if we found the language to
be ambiguous. As noted above, "the intention of the
parties is of paramount importance." Gray, 739
N.W.2d at 861 (citing Restatement (Third) of Property: Intent
to Create a Servitude § 2.2 cmt. d (Am. Law Inst.
When the purpose of an express easement is not clear, a court
must ascertain the objectively manifested intention of the
parties to the original conveyance in light of the
circumstances in existence at the time the easement was made,
as well as the physical condition of the premises, and the
use of the easement and acts acquiesced to during the years
shortly after the original grant.
25 Am. Jur. 2d Easements and Licenses § 63
(footnotes omitted). Furthermore, "a grant or
reservation of an easement will ordinarily be construed in
favor of the grantee." Id. § 17.
the Bank included the easement in the warranty deed it
delivered to the Bentleys before it finalized the sale of the
house lot to the Halvorsons. The Bank could have limited the
scope of the easement in the Bentleys' deed, but it did
not. The Bentleys were left in the dark as to any
pre-existing agreement between the Bank and the Halvorsons.
Moreover, what became the easement was a driveway used for
parking before the Bank sold either lot of land. The Driveway
is not an alleyway or through street; it leads directly to a
walkway to the duplex's upper unit's front door. At
the time of the sale, that was the only way to
access the upper-level unit. To presume it would be used to
drop a person off (and whatever goods they may have to take
in), and then require the driver to drive back down and park,
then walk back up the easement to go into the upper-level
unit makes no sense. The mortgagee's historical use of
the Driveway as a driveway with parking was evident before
the Bank sold the lots. Considering the parties' intent,
along with the realtors' testimony, the odd and steep
location of the Driveway and its prior use, and construing
any ambiguities against the Bank, a reasonable person in the
Bentleys' position would believe the easement's
purpose includes not only ingress and egress to the upper
unit of the duplex but also parking. We reverse the district
court on this issue.
Bentleys' Appellate Claim for "Turnabout."
first time on appeal, the Bentleys argue the width of the
easement should be expanded to allow them to turn around at
the south end of the Driveway. However, they conceded at oral
argument that this claim was not raised before or decided by
the district court. "It is a fundamental doctrine of
appellate review that issues must ordinarily be both raised
and decided by the district court before we will decide them
on appeal." Meier v. Senecaut, 641 N.W.2d 532,
537 (Iowa 2002). We therefore conclude error was not
preserved on this claim.
Bentleys' Judgment Against the Bank.
we conclude the easement established by the Bank in the
Bentleys' warranty deed is not limited to mere access but
includes parking, we reverse and vacate the district
court's award of $7500 to the Bentleys for the cost of
the easement it found they were sold but did not receive.
However, we also must address the district court's award
of trial attorney fees.
fees are generally not allowable in the absence of statute or
an agreement by the party to be charged. See Van
Sloun, 778 N.W.2d at 182. But, the Iowa Supreme Court
"has long allowed the recovery of attorney fees incurred
in defending title as an element of damages for breach of the
covenant of title." Gaede v. Stansberry, 779
N.W.2d 746, 749 (Iowa 2010). A covenant of warranty, the
principal covenant found in most deeds, constitutes an
agreement by the grantor that upon the failure of the title
which the deed purports to convey, either for the whole
estate or part only, the grantor will pay compensation for
the resulting loss. See Kendall v. Lowther, 356
N.W.2d 181, 189-90 (Iowa 1984). Here, the warranty deed given
to the Bentleys by the Bank stated the Bank "covenants
to Warrant and Defend the real estate against the lawful
claims of all persons . . . ."
A party is entitled to recover of the covenantor all
reasonable costs attending a litigation of the question of
title. Thus, when the covenantee in good faith defends the
title, recovery of the taxable costs and expenses paid by him
or her in that action is allowed. In fact, in an action for
breach of covenant of warranty, the covenantee may recover
for the damages and costs and expenses of suits brought
against him or her, but also for the costs and expenses of
suits brought by him or her, affecting the title to the
estate; this is so because each suit may have been part of
the means by which the title was sought to be defended. In
some jurisdictions, in an action against the covenantor for
breach of covenant, only the taxable costs incurred by the
covenantee in defending the title may be recovered.
20 Am. Jur. 2d Covenants, Etc. § 139 (footnotes
omitted). However, "before a covenantee may recover the
expenses attending the defense of the title to the property,
the covenantor must be given notice of the proceeding in
which the validity of the title is attacked and have failed
to or chosen not to defend." Gaede, 779 N.W.2d
at 750 (citation omitted).
the Halvorsons filed suit against the Bentleys concerning the
easement, and the Bentleys requested the Bank defend them in
the suit pursuant to the warranty deed. The Bank refused.
Given the Bank's warranty to the Bentleys, its refusal to
defend them, and its contrary position in the underlying suit
against them, we conclude that the district court's award
of trial attorney fees to the Bentleys was proper.
Accordingly, we affirm that award of $14, 257.28 for trial
attorney fees and costs.
Bentleys' Request for Appellate Attorney Fees.
we address the Bentleys' request for appellate attorney
fees. "Generally, attorney fees are not allowable unless
authorized by statute or contractual agreement."
FNBC Iowa, Inc. v. Jennessey Grp., L.L.C., 759
N.W.2d 808, 810 (Iowa Ct. App. 2008) (citing W.P. Barber
Lumber Co. v. Celania, 674 N.W.2d 62, 66 (Iowa 2003)).
However, courts are authorized "to award attorney fees
in an action where 'judgment is recovered upon a written
contract containing an agreement to pay an attorney's
fee.'" Id. (quoting Iowa Code §
625.22). Given the terms of the Bentleys' warranty deed
issued by the Bank and the circumstances of the case, the
Bentleys are entitled to reasonable appellate attorney fees.
Bentleys' appeal was timely filed. They also proved the
easement established by the Bank on the house lot is not
merely for access, i.e. ingress and egress, but also includes
parking for the upper unit of the duplex. We reverse the
district court on this issue. We deny the claims raised by
the Bank on appeal.
light of our conclusion, we vacate the district court's
award of damages to the Bentleys. We affirm the award of
trial attorney fees and costs to the Bentleys. Additionally,
we find the Bentleys are entitled to reasonable appellate
attorney fees and costs. Accordingly, we remand to the
district court to enter judgment consistent with this opinion
and to determine the reasonable amount of appellate attorney
fees and costs to be awarded to the Bentleys. Costs are taxed
to the Bank.
VACATED IN PART, AFFIRMED IN PART, AND REMANDED WITH
 Though there was some disagreement at
oral argument as to whether the path had been used as a
driveway prior to this dispute, it does not appear that
information was challenged at trial beyond the Bank's
statute-of-frauds and parol-evidence-rule objections, which
we address later in this opinion. We note that the
Halvorsons' purchase offer, which was accepted by the
Bank, expressly referred to the path as "the existing
driveway" when describing where the easement would be
placed. Moreover, several witnesses testified at trial that
the path had been used as a driveway, including James
Garrett, the Banks attorney who prepared its title opinion;
James Kerndt, the Banks representative; and Roger
 The docket shows the Bank faxed a copy
of its rule 1.904(2) motion to the Clayton County Clerk of
Court on April 17, 2015, and another copy of the motion was
received and file stamped on April 21, 2015.
 We note the Iowa Supreme Court
recently adopted amendments to Iowa Rule of Civil Procedure
1.904, effective March 1, 2017, which eliminates the need to
determine if the rule 1.904(2) motion was "proper."
See Iowa Supreme Ct. Order, Amendments to Iowa
Rule of Civil Procedure 1.904 and Iowa Rule of Appellate
Procedure 6.101 (Nov. 18, 2016) ("[N]ew provisions
in [rule 1.904] allow that a timely rule 1.904(2) motion will
extend the appeal deadline, subject to an exception for