RUSSELL L. NEWHALL, Plaintiff-Appellee,
MARCIA ELAINE NEWHALL ROLL, Defendant-Appellant.
from the Iowa District Court for Hardin County, Gregg R.
parties appeal and cross-appeal the district court's
attorney fee award in a partition action. REVERSED
D. Hanson and Jesse R. Johnston of Dickinson, Mackaman, Tyler
& Hagen, P.C., Des Moines, for appellant.
R. Rosenberg of Cady & Rosenberg Law Firm, P.L.C.,
Hampton, for appellee.
Considered by Tabor, P.J., and Mullins and Bower, JJ.
Roll appeals and Russell Newhall cross-appeals the district
court's decision to tax half of Newhall's trial and
appellate attorney fees to Roll. We find the court erred in
taxing plaintiff's appellate attorney fees as costs and
made no finding as to the reasonableness of Newhall's
trial attorney fees. We reverse the decision of the district
court and remand for further proceedings.
Background Facts & Proceedings.
and Newhall are biological siblings and were
tenants-in-common owners of two farm properties in Hardin
County and Butler County. In 2013, Newhall filed partition
actions against Roll on both properties. Newhall requested
partition by sale; Roll requested partition in kind, claiming
emotional attachment to the family property in Butler County.
The district court determined Roll did not prove partition in
kind would be equitable and practicable and ordered partition
by sale. Roll appealed. We reversed the ruling on appeal,
finding partition in kind to be equitable and practicable
with an equalization payment. Newhall v. Roll, No.
14-1622, 2015 WL 5965205, at *4 (Iowa Ct. App. Oct. 14,
2015). The Supreme Court vacated our decision, affirming the
district court. Newhall v. Roll, 888 N.W.2d 636, 644
trial and appellate attorneys filed applications for attorney
fees in the respective amounts of $17, 555.15 and $19,
530.00. The trial attorney, Megan Rosenberg, initiated the
partition action and represented Newhall before the district
court and on appeal before the Court of Appeals. Her
requested fee includes necessary filing fees and
title-related payments. Newhall retained appellate counsel
Mark McCormick solely for the further review application and
argument before the Iowa Supreme Court. In May 2017, the
properties were sold at auction in which Newhall and Roll
were the only bidders; Roll purchased both properties, with
the Butler County property selling for nearly double its
appraised value. In November, the court held a hearing on the
referees' report of the property sale, two referees'
charges, referee attorney fees, and a request for attorney
fees by Newhall's counsel. On January 19, 2018, the court
ordered the parties to each pay one referee's charge, the
parties to split the referee's attorney fees, and Roll to
pay one-half of Newhall's attorney fees. Roll filed a
motion to amend, which the court denied. Newhall's trial
attorney filed an additional affidavit for attorney fees,
which Roll moved to strike; the court did not rule on the
motion prior to the current appeal. Roll appeals the January
19 order. Newhall cross-appeals seeking the full amount of
Standard of Review
parties state we should review the award de novo because
partition actions are equitable proceedings. Iowa R. Civ. P.
1.1201(1). However, the court rule governing attorney fees in
real estate partitions specifically directs the court to
determine "a reasonable amount" of plaintiff's
attorney fees to fix and tax as costs. Iowa R. Civ. P.
1.1225. "Costs created by contests shall be
taxed against the losing contestant unless otherwise
ordered" by the court. Iowa R. Civ. P. 1.1224. All other
costs are paid by all parties in proportion to their
interest. Id. Rules 1.1224 and .1225 clearly place
both determining the amount of reasonable plaintiff's
attorney fees and where to tax those costs in the court's
discretion. Therefore, although partition actions are
equitable proceedings, our review of attorney fees awarded in
a partition action is for an abuse of discretion. See
Mahon v. Mahon, 133 N.W.2d 697, 700 (Iowa 1965). We
presume the district court's discretionary decisions,
including an attorney fee award, are correct until shown
otherwise by the complaining party. Lee v. State,
906 N.W.2d 186, 194 (Iowa 2018).
district court had to make two determinations under the
rules: (1) what was a reasonable amount of plaintiff's
attorney fees to tax as costs, and (2) against whom to tax
the costs. Roll primarily focuses on the first question,
claiming the court should have answered "none"
because the fees were not for a common benefit. Newhall's