                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-2088
                            Filed November 8, 2017


SCOTT RUETER and TRICIA RUETER,
    Plaintiffs-Appellants,

vs.

OSCEOLA WINDPOWER, LLC,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Osceola County, Carl J. Petersen,

Judge.



      Scott and Tricia Rueter appeal the dismissal of their action for nuisance

and negligence concerning the construction, placement, and operation of wind

turbines owned by Osceola Windpower, LLC. AFFIRMED.




      Steven Hamilton of Hamilton Law Firm, P.C., Storm Lake, for appellants.

      William G. Beck and Sander J. Morehead of Woods, Fuller, Shultz &

Smith, P.C., Sioux Falls, South Dakota, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
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DOYLE, Judge.

       Scott and Tricia Rueter appeal the dismissal of their action for nuisance

and negligence concerning the construction, placement, and operation of wind

turbines owned by Osceola Windpower, LLC (Osceola Windpower). The Rueters

argue the district court abused its discretion in dismissing their petition for failing

to comply with court orders and discovery rules. Because the district court did

not abuse its discretion in dismissing the action, we affirm.

        The genesis of this appeal was Osceola Windpower’s installation of wind

turbines near the Reuters’ rural Osceola County home in 2008. Unhappy with

the noise and disturbance the wind turbines caused, the Reuters filed a petition

against Osceola Windpower in January 2010, alleging the wind turbines created

a nuisance and seeking damages and injunctive relief. Litigation pended for

nearly seven years without reaching trial.1 In the final two years of litigation,


1
   The Rueters were initially represented by Gregg Owens.                 During Owens’s
representation, trial was originally scheduled to begin in May 2011 and was later
rescheduled for dates in July 2012, February 2013, November 2013, July 2014, and
January 2015. The record reveals Owens did nothing to otherwise advance the
prosecution of the action during his representation. The Rueters did not propound
discovery requests to Osceola Windpower in the first four years after filing the action.
Although Osceola Windpower sent the Rueters discovery requests shortly after
answering the petition, the Rueters’ failure to answer led the court to grant Osceola
Windpower’s motion to compel discovery in September 2010.
        After Owens left private practice in May 2014 and withdrew from representing the
Rueters, Abby Walleck, Owens’s former law firm partner, briefly represented them.
Walleck designated five expert witnesses in June 2014 and served Osceola Windpower
with the Rueters’ first discovery requests.
        In September 2014, Steven Hamilton made an appearance on the Rueters’
behalf after Osceola Windpower filed its second motion for partial summary judgment.
At that time, the Rueters amended their petition to add a claim for negligent construction,
placement, and operation of the wind turbines. An October 2014 order granted a sixth
continuance of trial, setting trial for September 2015. In a December 2014 order ruling
on Rueters’ motion to continue to avoid the application of Rule 1.944, the court noted, it
was granting the continuance “on tenuous grounds as it appears that this entire
proceeding has not been prosecuted by [the Rueters] with due diligence,” and the court
opined that “substitute counsel has attempted to rectify this situation.” Trial was
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Osceola Windpower filed three motions to dismiss the action based on the

Rueters’ failure to comply with court orders and the Iowa discovery rules. See

Iowa Rs. Civ. P. 1.517(b)(3) (allowing the court to dismiss an action if a party fails

to obey an order to provide or permit discovery), 1.945 (allowing a party to move

to dismiss any action “if the party asserting it fails to comply with . . . any order of

court”). The district court granted the third motion to dismiss in December 2016.

The Rueters appealed.

       We review the district court’s order for an abuse of discretion.            See

Troendle v. Hanson, 570 N.W.2d 753, 755 (Iowa 1997). “An abuse of discretion

consists of a ruling which rests upon clearly untenable or unreasonable grounds.”

See id. However, the range of the court’s discretion narrows when it dismisses

an action under rule 1.517. See Kenall/Hunt Pub. Co. v. Rowe, 424 N.W.2d 235,

240 (Iowa 1988). Dismissal is inappropriate in the absence of willfulness, fault,

or bad faith.     See Wagner v. Miller, 555 N.W.2d 246, 249 (Iowa 1996).

Generally, a sanction of dismissal is only appropriate when a party has violated a

court order; where the district court imposes the sanction of dismissal for

something less, our supreme court has typically found an abuse of discretion.

See Suckow v. Boone State Bank & Trust Co., 314 N.W.2d 421, 426 (Iowa 1982)

(analyzing cases).

       The dispute at issue concerns the Rueters’ failure to provide requested

discovery concerning their calculation of damages. The district court entered an

order in January 2015 resetting a new deadline requiring disclosure of this


rescheduled twice thereafter—first for a date in March 2016 and then for a date in
November 2016. The November 2016 trial date was removed from the calendar and
never rescheduled due to the court’s dismissal order.
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information within ninety days.      When the Rueters failed to provide the

information as ordered, the district court entered an October 2015 order imposing

monetary sanctions on Rueters’ counsel for his failure to provide discovery. In

February 2016, after the Rueters failed to inform Osceola Windpower of their

updated damage calculation, the court ordered the Rueters to disclose an

updated calculation within thirty days and warned that the Rueters were

“dangerously close to overly frustrating the litigation process.” Still, the Rueters

failed to disclose and supplement the discovery requests as ordered by the court

and as required by our rules.      These failures delayed at least two witness

depositions and, ultimately, the trial.       In December 2016, after finding it

“apparent” that the Rueters had violated the orders, the district court determined

dismissal was warranted based on the Rueters “continual lack of prosecution” of

the action.

       On appeal, the Rueters attempt to downplay the seriousness of the

failures to provide and supplement discovery responses, claiming the discovery

violations only existed “in the mind of defense counsel.” They also claim the only

established violation “was a minor issue” of failing to provide answers to

interrogatories concerning damages, which they claim was “inadvertent.” We

disagree with their characterization. In viewing the record before us, we ask

whether the Rueters failed to comply with previous orders of the court and find

they did. Whether the Rueters themselves did so willfully is irrelevant so long as

their attorney’s action—or inaction—may serve as the basis for the dismissal.

See Wagner, 555 N.W.2d at 249.            It is disingenuous to claim counsel’s

delinquent efforts to comply with the discovery rules and the prior court orders
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were merely oversight and inadvertent when Osceola Windpower had filed two

previous motions to dismiss on this basis, the Rueters counsel had been

sanctioned for his failure to comply with a prior court order, and the court had

warned that the Rueters were “dangerously close” to frustrating the litigation

process by failing to provide the discovery responses. Despite having multiple

opportunities to comply, the Rueters failed to do so. On this record, there is

substantial evidence to support the finding that the Rueters willfully failed to

comply with the court’s prior orders. See id. (finding plaintiffs’ failure to comply

with two court orders to answer interrogatories was substantial evidence of willful

contemptuousness, supporting dismissal of the action).          The fact that lesser

sanctions were available is irrelevant. See id. So, too, is the fact that Osceola

Windpower requested some of the continuances when it was the Reuters’

failures that made the continuances necessary.

          Because the failure to comply with the court’s orders justifies the sanction

of dismissal, the court did not abuse its discretion in ordering dismissal. We

affirm.

          AFFIRMED.
