                   IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0129
                               Filed June 3, 2020


CITY OF OTTUMWA,
      Plaintiff-Appellee/Cross-Appellant,

vs.

LARRY D. CLABAUGH,
     Defendant-Appellant/Cross-Appellee,
________________________________________________________________


      Appeal from the Iowa District Court for Wapello County, Shawn R. Showers

(default entry) and Greg G. Milani (judgment entry), Judges.




      A property owner appeals the entry of default judgment for the city of

Ottumwa. AFFIRMED.




      S.P. DeVolder of The DeVolder Law Firm, P.L.L.C., Norwalk, for appellant.

      Nicholas T. Maxwell and Michael J. Moreland of Harrison, Moreland,

Webber, Simplot & Maxwell, P.C., Ottumwa, for appellee.



      Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
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TABOR, Judge.

       Larry Clabaugh owns residential property in Ottumwa. The city alleges he

used that property to store junk motor vehicles—violating zoning ordinances.

Asserting his actions created a nuisance, the city petitioned for declaratory

judgment and injunctive relief. After considerable legal wrangling, the city won a

default judgment. Clabaugh now appeals.1 Finding the district court properly

denied the continuance and entered default judgment for the city, we affirm.

       I.     Facts and Prior Proceedings

       Clabaugh is a resident of Oskaloosa but owns real estate in Ottumwa. His

thirteen-acre property includes a house on North Court Street and adjacent

undeveloped real estate. The city classified both parcels as “R1 Single Family

Residential Zoning.” He also owns a used car and salvage operation in Oskaloosa

known as Clabaugh Enterprise. For that business, he has a dealer license and a

vehicle recycler’s license from the Iowa Department of Transportation (IDOT).

       After Clabaugh bought the Ottumwa property in August 2016, he removed

the front yard and landscaping, replacing it with gravel. He also cleared timber.

Soon the city received complaints from neighbors about the debris and erosion.

And Clabaugh hauled junk motor vehicles onto the property. Next Clabaugh

posted a sign advertising a future auction and advised Ottumwa’s mayor that he

planned to sell hundreds of cars from that site.




1 The city cross-appeals a January 2018 order setting aside the November 2017
default judgment. Given our rejection of Clabaugh’s challenge to the second
default judgment involving the same issues, we need not reach the merits of the
cross-appeal claim.
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       The city’s response started in the fall of 2016. That September, a zoning

technician notified Clabaugh he was violating city ordinances by accumulating junk

vehicles, trash, weeds, and brush piles. Clabaugh did not resolve the issues. So

in January 2017, the city attorney sent a letter advising Clabaugh that his land was

zoned residential and commercial activities were prohibited. The next month, the

city sent Clabaugh an order to abate and listed all nuisance and zoning violations.

The city set an abatement deadline of March 10, 2017.         Clabaugh asked for a

hearing. The city set a hearing for March 21, but Clabaugh did not attend. The

city tried to negotiate with Clabaugh to resolve the violations. But he did not

cooperate.

       In response to his recalcitrance, the city moved to enforce the ordinances.

That enforcement included citations for conducting commercial auto activities and

storage, building a fence without a permit, and blocking access to adjacent

property. The city also cited Clabaugh for using his residential property as a dump

site for cement, rebar, wood, and other materials. Plus, the city ticketed Clabaugh

for failing to cut the grass to the required height.

       After exhausting remedies to secure Clabaugh’s compliance, the city’s

health director applied for a temporary injunction with the district court. Following

an April 2017 hearing, the district court granted the injunction. Later the court

approved a consent order.        Clabaugh agreed to refrain from the prohibited

activities. In return, the city promised to dismiss some citations.

       Yet problems persisted. For example, Clabaugh’s property had sidewalk

mud and silt, a broken fence, and grass and weed violations. That summer, the
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city issued twenty-three citations to Clabaugh. In August 2017, the city applied to

transfer those citations to district court.

       The court set trial for November 2017. The city scheduled a deposition for

October. But on the day of the deposition Clabaugh called to say he wouldn’t

attend. He also failed to attend a second scheduled deposition. When it was time

for trial in November, Clabaugh was again a no-show. Following his unexcused

absence, the district court entered a default judgment against him.

       Four days later, Clabaugh moved to set aside the default judgment. He

claimed he could not attend the trial because he underwent surgery in late October

after falling into an uncovered storm sewer. The district court granted the motion

to set aside judgment in January 2018 and rescheduled trial for September.

       In May 2018, the city issued a third notice of deposition. Clabaugh declined

to attend for medical reasons.        In September 2018, Clabaugh appeared for

settlement negotiations on the day of trial. After meeting for about ninety minutes,

the parties failed to agree. As the trial was about to start, Clabaugh asked for a

continuance. He told the court that he had ankle surgery two weeks earlier and

remained under the effects of pain medication. He also asserted he would need

to have his foot elevated and staying in the courtroom would impede his ankle’s

healing process.

       Clabaugh’s counsel suggested if the court denied the continuance and his

client could not remain in the courtroom, “that would subject him to a default under

Rule 1.971.” Counsel insisted he needed his client to be present to defend against
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the many citations.     Counsel described the proceedings as “quasi-criminal”

because Clabaugh faced potential fines of more than $12,000.

       Unconvinced, the court denied the continuance. It reasoned:

       This case has been pending for a year and a half now. We’ve been
       through one default and one motion to set aside a default. My fear
       is if we continue this case, that we may never get it resolved,
       because the excuses that have been put on the record here are
       troubling to the court.
               The City of Ottumwa has a right to get these issues resolved,
       and a letter from a doctor the day before or the day of trial is not
       sufficient cause for me to continue this matter. So we will proceed
       with trial. If Mr. Clabaugh is not going to be here, then we’ll proceed
       with the default hearing.

       Clabaugh’s counsel made the following statement:

       Now, I have advised Mr. Clabaugh that there can be two
       consequences of [leaving the courtroom]. One, we could be
       defaulted under the rule I cited previously. Or secondly, depending
       on the court’s ruling, I would have to attempt to represent Mr.
       Clabaugh’s interest as best I can without him present. I don’t know
       if he can come back for a short time to testify or not, but he certainly
       cannot sit and stand in this courtroom. . . .

       The court replied:

       If Mr. Clabaugh is unable to be here, then it will be a default judgment
       entered against him, which would be the second one of this
       proceeding. If that is his choice, that is how we will proceed.

       In the face of those consequences, Clabaugh left the courtroom. The

district court found him in default. At the request of Clabaugh’s attorney, the court

set another hearing to determine the appropriate remedies.

       In October 2018, the parties appeared for a hearing on the default remedies.

The court confirmed the entry of default judgment for the city. The court found

Clabaugh guilty of twenty-three ordinance violations and imposed fines of $250,

plus $85 in court costs, on each offense (totaling $7705). The court also found
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Clabaugh’s thirteen-acres lot was subject to abatement. And the court issued

injunctions against Clabaugh for the storage of junk vehicles, the holding of

auctions, construction of any fence or building, and interfering with the city’s

access to abate the violations. Clabaugh appeals, raising two issues: (1) the

district court’s refusal to continue the trial and (2) the court’s entry of default

judgment.

II.    Scope and Standards of Review

       We review the denial of Clabaugh’s motion to continue for an abuse of

discretion. See Jack v. P & A Farms, Ltd., 822 N.W.2d 511, 515 (Iowa 2012).

Similarly, whether to order default judgment rests in the sound discretion of the

district court. Id. We reverse only if the court abuses that discretion. Id. If this

case turns on the court’s interpretation of Iowa Rule of Civil Procedure 1.971(3),

we review for the correction of errors at law. See id.

III.   Analysis

       A.     Did the district court abuse its discretion in denying
              Clabaugh’s motion to continue?

       Because he presented medical evidence in support of his motion to

continue, Clabaugh contends the district court abused its discretion in denying his

motion to continue. He contends the denial caused him an injustice, citing In re

C.W., 554 N.W.2d 279, 281 (Iowa Ct. App. 1996), and State v. Leutfaimany, 585

N.W.2d 200, 209 (Iowa 1988).2 He emphasizes his several ankle surgeries and

the letter from his treating physician presented on the day of trial.



2In both cases, the appellate courts found no abuse of discretion in the denial of
motions to continue.
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       The court may grant a continuance “for any cause not growing out of the

fault or negligence of the movant, which satisfies the court that substantial justice

will be more nearly obtained.” Iowa R. Civ. P. 1.911(1). That rules leaves broad

discretion with the district court. See State ex rel. Miller v. New Womyn, Inc., 679

N.W.2d 593, 595 (Iowa 2004).        We presume the court correctly denied the

continuance. See id. And Clabaugh bears a heavy burden in proving otherwise.

See Rattenborg by Rattenborg v. Montgomery Elevator Co., 438 N.W.2d 602, 605

(Iowa Ct. App. 1989).

       In denying the continuance, the court noted the case had been pending for

eighteen months—with a prior default judgment set aside. The court was skeptical

of Clabaugh’s excuses. The eleventh-hour letter from Clabaugh’s doctor did not

satisfy the court’s concerns. It believed the city deserved a more timely resolution

of the nagging issues.

       We defer to the district court’s findings. While not outright discrediting

Clabaugh’s medical explanation, the court did not believe the scheduling of his

ankle surgery automatically trumped the timely resolution of his legal troubles. The

court was reasonable in evaluating the circumstances. Clabaugh waited until the

day of trial—and after his negotiations with the city reached a stalemate—before

informing the court of his health condition. The court was right to doubt the

credibility of Clabaugh’s assertion he could not stay in the courtroom until the city

called its single witness. The record does not support Clabaugh’s contention that

the continuance was necessary to prevent injustice. And the city had a right to

timely enforcement of its ordinances. Delaying resolution would not have brought

substantial justice for Clabaugh’s neighbors and other concerned citizens.
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Clabaugh did not meet his burden to show the court abused its discretion in

denying his request for a continuance.

       B.     Did the district court err by entering default judgment when his
              attorney appeared to represent him?

       Clabaugh next contends the district court was remiss in finding him in

default under rule 1.971(3). He contends entry of default was not justified because

his counsel was present and ready to proceed without him. See Jack, 822 N.W.2d

at 515. In Jack, our supreme court declined to interpret rule 1.971(3) to permit

entry of default judgment against a party who fails to appear personally for trial

when the party’s lawyer is present and able to proceed in the party’s absence. Id.

The Jack court held, “[T]here is no reason why a plaintiff in a civil trial should be

required to appear personally when his or her presence is not ‘reasonably

necessary.’” Id. (citing Myers v. Emke, 476 N.W.2d 84, 85 (Iowa 1991)).

       The city distinguishes Jack, arguing defendant Clabaugh’s presence was

reasonably necessary to conducting the “quasi-criminal” trial. Indeed, defense

counsel said as much at the opening of the trial:

       I need my client to assist his counsel during this trial as the evidence
       comes in, and I need my client to be able to testify in order for me to
       put a credible defense against these numerous citations that he has
       against him. I cannot do that without my client’s presence.

       The city’s attorney agreed Clabaugh was a vital witness. Under these facts,

Clabaugh’s absence would have prevented the district court from “adequately

functioning and dispensing justice.” Id. at 517.

       To bolster its position, the city asserts defense counsel did not express a

clear intent to defend in his client’s absence. The record supports that assertion.

Defense counsel anticipated his client faced default if he left the courtroom after
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the court denied the motion to continue. A party may not take one position at trial

and a polar opposite argument on appeal. See State v. Rutledge, 600 N.W.2d

324, 325 (Iowa 1999) (“Nothing is more basic in the law of appeal and error than

the axiom that a party cannot sing a song to us that was not first sung in trial

court.”).   On this record, the district court properly entered default under

rule 1.971(3).

       AFFIRMED.
