                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0011
                            Filed September 13, 2017


ESTATE OF WAYNE BAKER, by its Executor, LISA JAMES,
     Plaintiff-Appellee,

vs.

ALLEN NEPPER, IN HIS CAPACITY AS CLOSING ATTORNEY AND
ESCROW AGENT FOR THE SALE OF AN ACREAGE WITH SEPARATELY
OWNED MACHINE SHED AND SHOP,
     Defendant-Appellee,
and

KATHY POPE, KRISTY MUNDEN, and DUSTIN POPE,
     Intervenors-Appellants.
________________________________________________________________


      Appeal from the Iowa District Court for Crawford County, Edward A.

Jacobson, Judge.



      Kathy Pope, Kristy Munden, and Dustin Pope appeal the district court’s

grant of summary judgment in favor of Wayne Baker. AFFIRMED.



      Maura Sailer or Reimer, Lohman, Reitz, Sailer & Ullrich, Denison, for

appellants.

      Lance D. Ehmcke, Jacob V. Kline, and Allyson C. Dirksen of Heidman

Law Firm, P.L.L.C., Sioux City, for appellees.



      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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BOWER, Judge.

         Kathy Pope, Kristy Munden, and Dustin Pope (the Intervenors) appeal the

district court’s grant of summary judgment in favor of Wayne Baker. We affirm.

      I. Background Facts and Proceedings

         Baker moved to an acreage owned by his parents, Lula and Vernie Baker,

in 1966 where he farmed with his father and operated a trucking business. In

1980 a large Morton-style machine shed was constructed on the property. The

building was moveable except for a poured concrete pad. Further improvements

and alterations were made to the building. Baker claims the construction and

improvement of the shed were at his sole expense and his parents understood

the building was solely his personal property.

         Lula Baker died on September 5, 2014,1 and her estate was opened on

September 18. The estate made no claim to the shed. The acreage was to be

auctioned on August 20, 2016.       Baker was contacted by the auctioneer and

asked to sell the building along with the acreage, as it would likely increase

interest and the sale price. Baker consented and stopped preparing to move the

building to another site. Baker participated in the auction and purchased the

property, including the shed, for $240,000.

         On August 22, Baker filed an action naming Allen Nepper, the closing and

escrow agent, as defendant and claiming Baker was entitled to share in the

proceeds of the sale under the terms of Lula’s will. Kathy and Dustin Pope, with

Kristy Munden, also beneficiaries of Lula’s will, intervened in the action. On



1
    Vernie predeceased Lula.
                                         3


November 1, Baker filed a motion for summary judgment, and on December 27,

the motion was granted. The Intervenors now appeal.

      II. Standard of Review

         We review a district court’s grant of summary judgement for correction of

errors at law. Iowa R. App. P. 6.907. Summary judgment is properly granted

when the moving party demonstrates there is no genuine issue of material fact

and he is entitled to judgment as a matter of law. W. Bend Mut. Ins. Co. v. Iowa

Iron Works, Inc., 503 N.W.2d 596, 598 (Iowa 1993). An issue is genuine “if the

evidence is such that a reasonable finder of fact could return a verdict or decision

for the nonmoving party.” Parish v. Jumpking, Inc., 719 N.W.2d 540, 543 (Iowa

2006). We also review the record in the light most favorable to the nonmoving

party. Minor v. State, 819 N.W.2d 383, 393 (Iowa 2012).

         While we review the evidence in the light most favorable to the nonmoving

party, the Intervenors “may not rest upon the mere allegations of [their] pleading

but must set forth specific facts showing the existence of a genuine issue for

trial.” Hlubek v. Pelecky, 701 N.W.2d 93, 95 (Iowa 2005) (citing Iowa R. Civ. P.

1.981(5)). Mere “speculation is not sufficient to generate a genuine issue of fact.”

Id.

      III. Summary Judgment

         The Intervenors claim three genuine issues of material fact remain

unresolved: (1) the ownership of the shed, (2) the value of the shed, and (3)

whether the mother’s estate would be unduly enriched if it was allowed to keep

the full proceeds of the sale of the building and acreage.       Baker claims the
                                            4


Intervenors did not sufficiently set forth specific facts alleging genuine issues for

trial.

         Baker submitted three affidavits in support of his motion for summary

judgment. Two of the affidavits state Baker is the sole owner of the shed, and

the third does not mention the shed at all but addresses issues related to the

co-farming agreement. The same two affidavits state the value of the shed to be

$133,000. Baker also submitted a professional appraisal for the value of the

acreage and building that relied, in part, on the county assessor’s report.

         In resisting the motion, the Intervenors filed one affidavit and a print-out of

the county assessor’s valuation of the property. The affidavit stated, in part,

“Wayne Baker has never provided any documentary evidence that he in fact paid

for the construction, maintenance, and improvements of the [shed].”                The

print-out of the county assessor’s valuation was the only evidence offered by the

Intervenors regarding the value of the shed and acreage.            The affidavit also

noted Baker had not provided the “intricate detail of the farming arrangement that

he had with his parents” nor “the split of income and expenses until after . . . Lula

enters the nursing home.”        In other documents filed to resist the motion for

summary judgment, the Intervenors also note Baker never paid rent to occupy

the house on the acreage.

         The district court did not consider any issues relating to unjust enrichment,

as those claims were raised by the Intervenors “first in the Lula Baker Estate

action. They should be addressed in that action and not in this one.” We agree

with the district court. The issues raised in this action were only the ownership of

acreage, the ownership of the shed, and the division of the proceeds of the
                                            5


auction. Our supreme court has held “the issues in a case must be made up by

the parties litigant and cannot be changed or expanded by strangers to the case.”

Briggs v. Bd. of Dirs. of Hinton Cmty. Sch. Dist., 282 N.W.2d 740, 744 (Iowa

1979).     We hold the issue of unjust enrichment cannot be raised by the

Intervenors here.

         Considering all the evidence before it, the district court found:

                there is no dispute . . . that the Lula Baker Estate
                owns the subject acreage. The record before the
                Court contains evidence in the affidavits of Wayne
                Baker and Lisa Baker James that establish that
                Wayne Baker is the owner of the machine shed. . . .
                The interveners argue that more proof . . . should be
                required; however, considering the evidence that is
                before the court at this time, there is no conflicting
                evidence from which a reasonable finder of fact could
                make any conclusion other than that Wayne Baker is
                the owner of the . . . shed.

We agree with the district court’s finding.        No evidence was offered by the

Intervenors placing the ownership of the shed in doubt. The statement in the

Intervenor’s affidavit simply pointed to a lack of documentary evidence and did

not rise above mere “speculation.” See Hlubek, 701 N.W.2d at 95.

         In considering the proper valuation of the acreage and shed, the district

court noted the only evidence of the value of the shed was Baker’s statement:

         that the value is $133,000.00. Regarding the acreage, the Court
         has before it the appraisal from McGuire Auction Company that
         gives the opinion that the acreage has a fair market value as of the
         date of the auction of $107,000.00. The Court notes that the
         narrative analysis in the McGuire Auction Company appraisal
         contains five comparable sales, using in part County Assessor’s
         property tax assessment reports. Those comparable sales for the
         five similar acreages had values of $58,683, $72,000, $108,000,
         $110,000 and $135,000. The interveners submitted as a part of
         their resistance what appears to be, without explanation from the
         Assessor, the County Assessor property tax assessment report for
                                        6


        the subject acreage. It shows the acreage to have a value of
        $118,090. The average of all seven of these estimates is
        $101,253. . . . The acreage was sold at public auction, which is
        conclusively presumed to have been at fair market value. The sale
        price was $240,000. . . . The court needs only to know the fair
        market value of the acreage and the fair market value of the
        building will be self-explanatory. To that end, the only evidence
        before the court is the appraisal of McGuire Auction Company,
        which references county assessor property tax reports and also
        references five comparable sales where similar acreages sold
        without the benefit of the machine shed. That estimate by McGuire
        Auction Company is $107,000. The court has no other credible
        evidence before it. It appears that the property tax assessment
        was utilized by McGuire as part of his estimate of the value of the
        property.

We agree with the district court’s assessment. The Intervenors offered only an

unexplained print-out of the county assessor’s valuation.       The professional

estimate offered by Baker incorporated the information offered by the

Intervenors. We hold a reasonable finder of fact could not conclude the value of

the shed was other than $133,000. Accordingly we affirm the district court’s

grant of summary judgment.

        AFFIRMED.

        Potterfield, J., concurs; Danilson, C.J., concurs in part and dissents in

part.
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DANILSON, Chief Judge (concurring in part and dissenting in part).

       I respectfully dissent in part. I concur in all respects except in regard to

valuation of the building. The value of the building was a genuine issue raised in

the intervenors’ filings in response to the motion for summary judgment.

Specifically, the intervenors allege,

              The total sale price of the acreage was $240,000. Baker
       argues that the shed’s value is $117,000. He arrives at this figure
       by taking the sale price of $240,000 and subtracting the fair market
       value of the property without the shed. According to the Crawford
       County Assessor, the shed (together with other improvements)
       accounts for only 14% of the total value of the acreage. Therefore,
       the most the shed could be worth under this analysis is $33,600.
       Notably, Baker did not provide any accounting for his alleged
       investment, and there is no appraisal of the shed.

The intervenors also attached to their filings a copy of the current valuation of the

land, dwelling, and improvements from the Crawford County Assessor.             This

proof is sufficient to raise a genuine issue of material fact of the value of the

building. I also note that Baker’s calculation of the value of the building would

encompass the value of the concrete flooring of the building which would appear

to constitute a fixture and remain with the land.        A fact question arises if

reasonable minds can differ on how the issue should be resolved. Walderbach v.

Archdiocese of Dubuque, Inc., 730 N.W.2d 198, 199 (Iowa 2007). The court

reviews the record in a light most favorable to the opposing party, and we “afford

the opposing party every legitimate inference the record will bear.”        Frontier

Leasing Corp. v. Links Eng’g, L.L.C., 781 N.W.2d 772, 775 (Iowa 2010). Here,

only a partial summary judgment should have been granted as a genuine issue

of material fact existed concerning the value of the building.
