                     IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0490
                             Filed March 20, 2019


RUSSELL L. NEWHALL,
    Plaintiff-Appellee,

vs.

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.
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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
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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.




1
   As of July 1, 2018, Division XII of the Iowa Rules of Civil Procedure governing partition
of real and personal property were rescinded and replaced with statutory partition
procedures found in chapter 651 of the Iowa Code. See 2018 Iowa Acts ch. 1108.
Because the entirety of the partition action preceded the change, the Rules and related
case law on partition attorney fees apply rather than the new statutes.
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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 focuses on the second question, claiming all his attorney

fees should have been taxed against Roll.

         Rule 1.1225 states “the court shall fix, and tax as costs, a fee in favor of

plaintiff’s attorney, in a reasonable amount, to be determined by the court.”

Because of the mandatory language in the rule, the court has no discretion in

determining whether to fix and tax a fee in favor of plaintiff’s attorney. See Lee,

906 N.W.2d at 197. The court’s discretion lies in determining a reasonable amount

for the fee and how much to tax against the losing contestant. Iowa Rs. Civ. P.

1.1224, .1225. Considering the mandatory language of rule 1.1225, we dismiss

Roll’s claim that no attorney fees should have been fixed and taxed—the court was
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required to fix and tax a reasonable attorney fee in favor of the plaintiff. Instead,

we look to the reasonableness of the fees.

       Both parties claim the court did not determine the reasonableness of the

fees it assessed. The burden of proof is on an applicant “to show the reasonable

value of the necessary services rendered.” Gabel v. Gabel, 117 N.W.2d 501, 503

(Iowa 1962). Although the court noted, “the issues presented in this case were not

clear cut, and were highly contested, resulting in extensive litigation,” it did not

expressly find the attorney fees to be reasonable. Newhall’s attorney for the trial

and initial appeal requested $17,555.15 in attorney fees, and his counsel for the

application for further review before the Iowa Supreme Court requested $19,530

in appellate attorney fees. The court taxed half of all Newhall’s attorney fees as

costs and assessed them against Roll. Newhall claims all his trial, appellate, and

post-trial attorney fees, now amounting to $42,436.60,2 are reasonable and the

district court acted arbitrarily in only taxing half of the already-accrued fees as

costs.3 It is not entirely clear if the court found only half of Newhall’s attorney fees

were reasonable under rule 1.1225, or if it found the entirety of the attorney fees

reasonable and only taxed half against Roll under its 1.1224 discretion.

       “The court is an expert on what are reasonable attorney . . . fees.” Gabel,

117 N.W.2d at 503. In deciding what constitutes a reasonable attorney fee, the

district court considers several factors, including “the time necessarily spent, the




2
    Newhall’s requested award includes $5351.45 submitted in a post-order affidavit.
Whether these additional fees should be included has not been determined by the district
court.
3
   We note the court expressly found the expenses related to the sale as found in the
referee’s report to be reasonable.
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nature and extent of the service, the amount involved, the difficulty of handling and

importance of the issues, the responsibility assumed and results obtained, the

standing and experience of the attorney in the profession, and the customary

charges for similar service.” GreatAmerica Leasing Corp. v. Cool Comfort Air

Conditioning & Refrigeration, Inc., 691 N.W.2d 730, 733 (Iowa 2005) (quoting

Schaffer v. Frank Moyer Constr., Inc., 628 N.W.2d 11, 24 (Iowa 2001)). The court

may make reductions for partial success, duplicative hours, unreasonable hours,

and proportionality, and it should consider all the circumstances of the case in

making its decision. Lee, 906 N.W.2d at 197.

       “It is widely recognized that the underlying theory on which fees for plaintiff’s

attorney in partition are allowed as costs and charged to the various interests is

that the services are for the common benefit of all.” Mahon, 133 N.W.2d at 701.

“Where some of the services are for the common benefit of the owners and some

benefit plaintiff personally he should pay for the latter.” Id. at 701–02. Historically,

the attorney fees were taxed as costs when no defense was made, and “the

Legislature did not intend to impose the burden of paying any part of plaintiff’s

attorney’s fees upon the opposing parties who are represented by counsel of their

own choosing.” Hawk v. Day, 126 N.W. 955, 959 (Iowa 1910). The reasoning

behind the taxing of fees as costs lies in the large proportion of uncontested

partition proceedings where the plaintiff’s attorney serves the defendants as well

as the plaintiff. Id.

       Our most recent cases on Rule 1.1225 have declined to award appellate

attorney fees, noting the rule says nothing about appellate attorney fees and the

requesting party’s failure to cite authority to permit an award of appellate fees.
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Wihlm v. Campbell, No. 15-0011, 2016 WL 4801433, at *4 (Iowa Ct. App. Sept.

14, 2016), vacated on other grounds, 906 N.W.2d 185 (Iowa 2018) (vacating

partition in kind); Gleason v. Gleason, No. 13-0876, 2015 WL 9450403, at *6 (Iowa

Ct. App. Dec. 23, 2015). Newhall made no argument below or on appeal why

appellate attorney fees should be read into the rule. Appellate attorney fees were

not awarded at either appeal. See Newhall, 888 N.W.2d 636; Newhall, 2015 WL

5965205.

       In its decision, the court traced the case proceedings and noted, “It is a fair

statement that the issues presented in this case were not clear cut, and were highly

contested, resulting in extensive litigation.” The court then ruled it was reasonable

for Roll to pay one-half of Newhall’s attorney fees without any finding if the fees

themselves were reasonable. We find the court should not have taxed plaintiff’s

appellate fees as costs. We remand for the district court to evaluate the plaintiff’s

trial attorney fees to determine the reasonableness of the fees to tax as costs and

in what proportion against each party.

       REVERSED AND REMANDED.
