NEAL SMITH as Trustee of the Neal E. Smith Revocable Trust and BEATRIX SMITH as Trustee of the Beatrix Smith Revocable Trust, Plaintiffs-Appellees,
CITY OF PLEASANT HILL, IOWA, Defendant-Appellant.
from the Iowa District Court for Polk County, Robert B.
City of Pleasant Hill appeals a $200, 000 jury verdict in
this eminent domain condemnation case. AFFIRMED AND REMANDED.
E. Nervig, Amy S. Beattie, and Matt O'Hollearn of Brick
Gentry, P.C., West Des Moines, for appellant.
T. Webber of Ahlers & Cooney, P.C., Des Moines, for
by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
VAITHESWARAN, Presiding Judge.
City of Pleasant Hill applied to condemn property owned by
the Neal E. Smith revocable trust, of which Smith was
trustee. See Iowa Code § 6A.4(6) (2015).
Following a hearing, a compensation commission awarded Smith
damages of $50, 000. See id. §§ 6B.4, 6B.
14, 6B. 17. Smith appealed to the district court. See
damages issue was tried to a jury, which returned a verdict
of $200, 000 in favor of Smith. See id. § 6B.21
("The appeal shall be tried as in an action by ordinary
proceedings."); Johnson Propane, Heating &
Cooling, Inc. v. Iowa Dep't of Transp., 891 N.W.2d
220, 224 (Iowa 2017) ("The only issue to be determined
on the appeal is the amount of damages owed by the acquiring
agency to the landholder due to the taking." (citing
Iowa Code § 6B.23)). The City appealed.
City argues the jury verdict is "not supported by
substantial evidence." Smith responds that the City
failed to preserve error. We agree with Smith.
City concededly did not file a motion for directed verdict or
any posttrial motion alerting the district court to its
concern about Smith's evidence and the jury award.
See, e.g., Iowa Rs. Civ. P. 1.945 ("After a
party has rested, the adverse party may move for dismissal
because no right to relief has been shown, under the law or
facts, without waiving the right to offer evidence
thereafter."); 1.1003(2) (authorizing judgment
notwithstanding the verdict "[i]f the movant was
entitled to a directed verdict at the close of all the
evidence, and moved therefor, and the jury did not return
such verdict"); 1.1004(4) (authorizing new trial motion
for "[e]xcessive or inadequate damages appearing to have
been influenced by passion or prejudice"); 1.1004(6)
(authorizing new trial motion where the verdict "is not
sustained by sufficient evidence"). Nothing in chapter
6B suspends application of these civil procedure rules in
condemnation appeals. To the contrary, parties to
condemnation appeals have routinely used the motions to
contest evidence supporting damage awards as well as the
extent of damages. See, e.g., Virginia Manor, Inc., v.
City of Sioux City, 276 N.W.2d 406, 407 (Iowa 1979)
(noting city filed a motion for new trial following a
jury's damage award in a condemnation appeal); Fritz
v. Iowa State Highway Comm'n, 270 N.W.2d 835, 837-38
(Iowa 1978) (noting commission filed motion for directed
verdict and motion for new trial in connection with
condemnation appeal); Wilkes v. Iowa State Highway
Comm'n, 172 N.W.2d 790, 792 (Iowa 1969) (noting
commission filed new trial motion contesting sufficiency of
the evidence); NDA Farms, LLC. v. City of Ames, No.
16-0028, 2017 WL 935067, at *1 (Iowa Ct. App. Mar. 8, 2017)
(noting City filed posttrial motions following a jury award
of damages in condemnation case); Polk Cty. v. Nationwide
Mut. Ins. Co., No. 03-1845, 2004 WL 2579062, at *1 (Iowa
Ct. App. Nov. 15, 2004) (noting County filed motions for
directed verdict, judgment notwithstanding the verdict, and
new trial to address evidentiary issues, the property
owner's evidence, and the claimed excessiveness of the
damage award); Sunrise Developing Co. v. Iowa Dep't
of Transp., 511 N.W.2d 641, 643 (Iowa Ct. App. 1993)
(noting filing of new trial motion following jury award of
damages in condemnation appeal); cf Schooler v. Iowa
Dep't of Transp., 576 N.W.2d 604, 607 (Iowa 1998)
(noting DOT preserved error on jurisdictional challenge by
filing motion to dismiss and it was not necessary to also
file a motion for directed verdict or a motion for new
jury-tried case, it was incumbent upon the City to file one
or more of these motions if it wished to raise an appellate
challenge to the sufficiency of the evidence supporting the
damage award. See Reilly v. Anderson, 727 N.W.2d
102, 115 (Iowa 2006) ("We do not address the
Reillys' claim on cross-appeal that there was
insufficient evidence to support the finding by the jury of
his fault. The Reillys did not preserve error on this claim
at trial, and they are not entitled to challenge the
sufficiency of the evidence to sustain the finding of
Reilly's fault for the first time on appeal from a jury
verdict."); Gorden v. Carey, 603 N.W.2d 588,
589-90 (Iowa 1999) ("[T]he proper method for challenging
the adequacy of damages is through a motion for new trial. .
. . Without having the benefit of a motion for new trial and
a ruling thereon, there is nothing from which we can review
the trial court's use of discretion. Requiring such a
motion to be made gives the trial court, which had the
'benefit of seeing and hearing witnesses, observing the
jury and having before it all incidents of the trial, '
the initial decision of whether it should interfere with the
jury's verdict." (citations omitted)); cf.
Sundholm v. City of Bettendorf, 389 N.W.2d 849, 852
(Iowa 1986) ("Sufficiency of evidence may be challenged
on appeal from judgment following a bench trial even though
the point was not raised in trial court. . . . The rule is
otherwise in jury trials.").
City attempts to surmount this hurdle by arguing appellate
courts have "inherent authority" to review
sufficiency-of-the-evidence challenges to damage awards.
However, the opinions the City cites do not stand for this
proposition. In Ezzone v. Riccardi, for example, the
court reduced a punitive damage award and, on rehearing,
rejected the plaintiffs' contention that the court took
this action without prompting by the parties. 525 N.W.2d 388,
403 (Iowa 1994). The court stated,
Whatever deficiency plaintiffs allege in the scope of
defendants' assignment challenging the punitive damage
award, they cannot suggest we introduced the matter into the
dispute. Defendants complained of the sufficiency of evidence
of punitive damage at every stage of the trial, and
challenged the award in a motion for judgment notwithstanding
the verdict and for a new trial.
Id. In dicta, the court said it could have relied on
precedent invoking the court's inherent authority to
order remittiturs. Id. The court found it
unnecessary to turn to this "rare" remedy because
the plaintiffs moved for new trial on the appropriateness of
damages and their appeal from the ruling also allowed review
of the damage amount. Id. at 403-04. In sum,