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Newhall v. Roll

Court of Appeals of Iowa

March 20, 2019

RUSSELL L. NEWHALL, Plaintiff-Appellee,
v.
MARCIA ELAINE NEWHALL ROLL, Defendant-Appellant.

          Appeal from the Iowa District Court for Hardin County, Gregg R. Rosenbladt, Judge.

         The parties appeal and cross-appeal the district court's attorney fee award in a partition action. REVERSED AND REMANDED.

          Thomas D. Hanson and Jesse R. Johnston of Dickinson, Mackaman, Tyler & Hagen, P.C., Des Moines, for appellant.

          Megan R. Rosenberg of Cady & Rosenberg Law Firm, P.L.C., Hampton, for appellee.

          Considered by Tabor, P.J., and Mullins and Bower, JJ.

          BOWER, Judge.

         Marcia 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.

         I. Background Facts & Proceedings.

         Roll 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 (Iowa 2016).

         Newhall's 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 attorney fees.

         II. Standard of Review

         Both 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.[1] "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).

         III. Merits

         The 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 appeal ...


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