Opinion
No. 2-067 / 01-0324.
Filed March 13, 2002.
Appeal from the Iowa District Court for Hardin County, CARL D. BAKER, Judge.
Plaintiffs appeal from the entry of summary judgment dismissing their claims against the Town of Union and its mayor for aiding and abetting in the maintenance of a nuisance. AFFIRMED.
Jim Sween of Letz, Sween Beres, P.C., Eldora, for appellant.
Patrick McNulty and Donna Miller of Grefe Sidney, P.L.C., Des Moines, for appellees.
Considered by MAHAN, P.J., MILLER and HECHT, JJ.
The plaintiffs appeal from the entry of an order granting the defendants' motion for summary judgment. They contend the court erroneously concluded the Town of Union and its mayor, Joe Knight, were not liable for a nuisance maintained by one of Union's citizens. We affirm.
I. Background Facts and Proceedings.
In 1963, Jerry and Shirley Cepelak purchased a home in Union, Iowa. Sometime in the 1970's, Donald and Daphne Sears moved in across the street from the Cepelaks, and began storing old vehicles and other materials on their property. In January of 1996, the Cepelaks and their two sons, who were living with them, filed a nuisance action for damages and abatement against the Sears. They joined the Town of Union and its mayor, Joe Knight, as defendants in a mandamus action to require them to abate the nuisance under Union's nuisance ordinance. Union and Knight subsequently filed a cross-claim for abatement against the Sears.
Following a jury verdict for the Cepelaks on their damages claims against the Sears, the district court ruled in favor of Union on its cross-claim and ordered the Sears to abate the nuisance. Union attempted to enforce the abatement order and filed a list of property to be removed from the property. The Sears then applied for a junkyard license pursuant to a town ordinance, which Union conditionally granted, requiring the Sears to take a number of steps to clean up the property and erect a fence to block its view. Meanwhile, the Sears filed for voluntary Chapter 7 bankruptcy and, consequently, the district court stayed further proceedings in the state court case. When the bankruptcy trustee offered part of the Sears' property for sale, the Cepelaks purchased it in an attempt to mitigate their damages.
On January 20, 2000, the Cepelaks filed this action for damages against Union and Joe Knight based on the abatement order stemming from its 1996 case. They alleged the nuisance had continued unabated with the full knowledge, consent, and encouragement of Union and Knight. Union and Knight filed a summary judgment motion, contending the town has no duty to abate a nuisance. Following a hearing, the district court granted the motion for summary judgment and dismissed the Cepelaks' claim for damages against the town and its mayor. The Cepelaks appeal.
This appeal, having been taken from a partial summary judgment, is not from a final order or judgment and is therefore interlocutory in nature. We elect to treat the notice of appeal as an application for interlocutory appeal, and grant it. See Iowa R. App. P. 6.1(4).
II. Scope of Review.
We review a summary judgment motion for correction of errors at law. Ciha v. Irons, 509 N.W.2d 492, 493 (Iowa 1993). We must determine whether a genuine issue of material fact existed and whether the district court correctly applied the law. Howard v. Schildberg Construction Co., 528 N.W.2d 550, 552 (Iowa 1995).
III. Union's Duty to Abate the Nuisance.
In granting summary judgment, the district court analyzed Union City Ordinance 50.09 and Iowa Code section 364.12(3) (1999), the town and State authorities for the abatement of nuisances. Ordinance 50.09 provides, in pertinent part, "the city may perform the required action to abate." (Emphasis added.) Likewise, section 364.12(3) provides "a city may perform the required action of abatement and assess the costs against the party for collection in the same manner as a property tax." (Emphasis added.) Based on the permissive language of these authorities, the district court determined Union and Knight were under no legal duty to abate the nuisance existing on the Sears' properties. It specifically found the decision whether to abate a nuisance is a matter of discretion for municipalities. Consequently, the court held there was no duty to abate the nuisance and it granted summary judgment on the damages claim.
On appeal, the Cepelaks assert the "reliance by the trial court on the Union Nuisance Ordinance and state nuisance statute was faulty because it does not address the claims made by the Cepelaks in this action." They now urge the district erred in two particulars: (1) failing to conclude Union and Knight may be liable under the theory of aiding and abetting another in the maintenance of a nuisance; and (2) failing to determine Union and Knight had a duty to obey the district court order in the prior case directing abatement of the nuisances.
We conclude the Cepelaks failed to preserve either of these contentions for our review. First, the district court did not address whether there exists a duty to not aid and abet the maintenance and continuation of a nuisance. Issues must be presented to and passed upon by the trial court before they may be raised upon appeal. PEB Practice Sales, Inc. v. Wright, 473 N.W.2d 624, 625 (Iowa Ct. App. 1991). A motion pursuant to Iowa Rule of Civil Procedure 179(b) is essential to preserve error when a trial court fails to resolve an issue, claim, or defense or other theory properly submitted to it for adjudication. State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350 N.W.2d 202, 206-07 (Iowa 1984).
Formerly Iowa Rule of Civil Procedure 179(b)
Nor did the district court resolve whether Union was under a duty to obey the court's previous order that the nuisance "must be abated." In fact, in the Cepelaks' appeal brief they admit that "[i]n ruling on Unions' Motion for Partial Summary Judgment . . . Judge Baker . . . never addresses the issue of Union's duty to obey these orders." Consequently, we conclude the Cepelaks failed to preserve this contention for our review. Again, in order to preserve this contention for appellate review, the Cepelaks should have brought this omission to the attention of the district court through a rule 1.904(2) motion. See Tenney v. Atlantic Associates, 594 N.W.2d 11, 14 (Iowa 1999). Having not done so, we have nothing to review.
Further, we reject the Cepelaks' assertion that these contentions were implicitly addressed, and denied, by the district court in its ruling. The court resolved the very precise legal question of whether the town ordinance or the State nuisance statute imposed upon Union and its mayor a duty to abate a nuisance. Because it concluded neither did so, it granted summary judgment on the Cepelaks' damages claims. It in no way addressed, either explicitly or implicitly, the town's duty to refrain from aiding and abetting a private party in a nuisance or the town's duty to obey the previous court ruling which specifically ordered the Sears, but not the town, to abate a nuisance on their private property. We therefore affirm the district court ruling.
AFFIRMED.