                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-2115
                               Filed April 5, 2017


BIANCA LORRINE PULLIAM,
     Plaintiff-Appellee,

vs.

DANNY MAC,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Allamakee County, Barry S.

Mueller, Magistrate (trial), and Stephanie C. Rattenborg, District Associate Judge

(appeal).



       A towing company appeals from a judgment entered against it in a

replevin action. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

WITH DIRECTIONS.




       Patrick A. Ritter of Elwood, O’Donohoe, Braun, & White, LLP, West Union,

for appellant.

       James Burns of Miller, Pearson, Gloe, Burns, Beatty & Parrish, P.L.C.,

Decorah, for appellee.



       Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
                                            2


DOYLE, Judge.

       The unwanted tow of a thirteen-year-old van set off a bizarre series of

events that spawned a lawsuit, an appeal to the district court, a grant of

discretionary review by our supreme court, and finally, transfer to this court.

Defendant towing company Danny Macs1 appeals from a judgment entered

against it in a replevin action brought by the owner of the van. We affirm in part,

reverse in part, and remand with directions.

       I. Background Facts and Proceedings.

       As best as we can glean from conflicting testimony, the salient facts are as

follows. During the early morning hours of June 23, 2013, an unprecedented

flood inundated Waukon.         Plaintiff Bianca Pulliam was living in a downtown

apartment above The Standard newspaper offices at the time.                     She was

awakened when a neighbor knocked on her door and told her to get up because

vehicles were being towed from the building’s parking lot. Pulliam’s van, a 2000

Pontiac Montana purchased for $1500 a few months earlier, was parked in the lot

behind the building in a space authorized for parking by tenants of the building.

       Pulliam went down to investigate. Her van had not yet been towed. When

she attempted to get in the van to move it she was told by a woman standing in

front of the van,2 “No, we can’t allow you to start—allow you to start the vehicle


1
  The defendant towing company is identified as “Danny Mac” in the pleadings, but
according to the company’s letterhead on letters entered into evidence at trial, the towing
company’s name is “Danny Macs Towing,” which is a name Burington Repair, LLC, does
business as. The company is solely owned by Brian Burington and his wife. During the
trial, the company was also referred to as “Danny Mac’s Towing.” We will refer to the
company as “Danny Macs” in this opinion.
2
  In his order, the magistrate refers to this person as a uniformed police officer. Pulliam
testified she did not know who the woman was but thought “she was just out there with
the tow company.”
                                          3


up.” Pulliam said she would move the van, but she was told, “No we can’t allow

you to start ’em up due to the water will get in your engine. But we’re moving

them all out to the main street for cleanup, until we clean up the parking lot.” She

was told that she could pick up the van on the main street. Pulliam’s van was

then towed. Pulliam went back to her apartment to change her clothes. About

an hour later she went to the main street in search of her van. None of the

vehicles from the building’s parking lot were there. She called the police, and not

knowing the identity of the company that towed her van, she called several

towing companies and was eventually informed her van was at Wilken Auto

Salvage (Wilken’s).

       Brian Burington, owner of Danny Macs, testified he had been called by the

Allamakee County Sheriff’s Office dispatch to remove vehicles from the back

parking lot behind The Standard and downtown businesses because everything

had been flooded there. “[T]hey wanted [all the vehicles] out of downtown for

cleanup . . . they didn’t want them sittin’ downtown . . . creatin’ any type of health

hazard.” Danny Macs took all the towed vehicles to a lot it was renting from

Wilken’s. Burington stated all the vehicles towed were charged $75, “and the

first week they sat there we weren’t going to charge any storage due to the

circumstances.”

       According to Pulliam, she went to the salvage yard to retrieve her van and

was told she had to pay $175 for the tow.3 Pulliam refused to pay the charge,

and in any event, she did not have the money to pay it. She called the police to


3
 The testimony is conflicting with regard to the tow charge. Pulliam says it was $175;
Burington says it was $75. No bill was offered into evidence.
                                             4


see if she could get the van back without paying the tow charge. That met with

no success. A few weeks later, after she had raised the money to pay the tow

charge, she was told the cost to retrieve her van had gone up because accrued

storage fees had been tacked on.4            Pulliam attempted to contact Waukon’s

mayor with no success.          Eventually, a frustrated Pulliam went back to the

salvage yard and saw that her van was outside of the yard’s gate. Engaging in

an act of self-help, she got in the van, started it up, and drove off. Unbeknownst

to Pulliam, Danny Macs then reported the van as stolen. Shortly thereafter, she

took the van to a Prairie du Chien automotive repair shop to have the flood

damage repaired. The van was muddy and water had been in it. The battery

was replaced, the gas tank was dropped, and the windshield wiper motors were

replaced because of water damage. Pulliam did not have the money to pay for

the $1600 in repairs, so the van sat at the shop until the end of 2013.

         Eventually Pulliam paid for the repairs and drove the van to Chicago for a

weekend and then drove back Calmar, Iowa, where she was then living. After

being pulled over by police, she was told that the van had been reported stolen.

She exclaimed, “How? I’m the owner of the vehicle.” She was told Danny Macs

had reported it stolen. Up to this point, she had not known that it was Danny

Macs that had towed her van to Wilken’s. Burington testified “Allamakee Sheriff’s

Office dispatch called us and said Calmar [Police Department] had a van that

was in the ditch and they got it out and they had it pulled over and it was the

van—it was [Pulliam]’s van that he had over there.” Burington was told that

Pulliam was driving the van. Burington went to Calmar and picked up the van

4
    There is no evidence in the record regarding the amount of storage charges.
                                           5


and brought it back to Waukon. The van then sat in a storage lot for the next

year. By this time, Pulliam had moved back to Waukon.

       The sequence of the following events is as muddy as the Waukon flood

waters but not critical to our analysis. According to Burington, about a year after

the van was towed from Calmar, he received a phone call from Pulliam asking if

       we had possession of her van and we told her we did but now she’d
       have, you know, extra towing costs due to us going over to Calmar
       and bringing it back.[5] And then with the prior $75 charge from
       before, you know, that would all have to be paid and—and then at
       that time, you know, she didn’t have the money for anything and
       she didn’t feel it was right that it got towed in the first place and
       that’s kind of where it got left off then.

       In January 2015, Danny Macs sent a letter to Pulliam informing her that

her balance was “seriously delinquent.” In lieu of a cash payment, Danny Macs

offered to accept title to the van as a settlement on the balance owed.6         A

February 4, 2015, letter to Pulliam from Danny Macs stated: “Per the phone

conversation you had stated to dispose of the vehicle in lieu of the tow bill and

storage fees from June 2013.”7 The letter requested Pulliam to either sign the

vehicle’s title over or sign a form giving Danny Macs permission to dispose of the

vehicle.

       At some point, a Waukon police office came to Pulliam’s home and told

her that Danny Macs “was giving them trouble about the vehicle been sittin’ there

so long and they want to get rid of it,” and “[t]here was a paper for [her] to sign

[her] title over for [Danny Macs] to dispose of the vehicle.” Pulliam said she

would do no such thing because the van should not have been towed in the first

5
  The cost of the tow from Calmar is not in the record.
6
  The amount of the “balance owed” is not in the record.
7
  The amount of the storage fees is not in the record.
                                         6


place. The officer told her, “Well, I’m the one [who] authorized for the vehicles to

be moved to the main street for cleanup.” After Pulliam told the officer Wilken’s

had tried to charge her to get the van back, the officer responded, “They tried to

charge you to get your vehicle back?” Pulliam said, “Yes,” and the officer told

her to hold on and give him “about an hour and [he’d] be back.” When he came

back, the officer told Pulliam the towing company was not happy, but she could

have her van back if she just paid the tow charge. He suggested that before

paying the charge, she should see if the van would start because it had been

sitting for so long.

       Pulliam called Wilken’s and said she wanted to come out to see if the van

would run and to “try to pay [her] vehicle." She was told no one was there at the

time to take her to her van, and she was asked to call back on Thursday or

Friday. She called back on Thursday and was told Wilken’s no longer had the

van because Danny Macs had picked it up.8 Pulliam called Danny Macs and

was told the van was on Burington’s property near his house. Pulliam went to

the Burington home and spoke with Burington. He told her, “Well, I had your

vehicle here two days ago. When I returned home, I seen tire tracks in the mud

and the vehicle is gone. Someone stole it.” At the trial Burington was asked if he

knew where the van was. He said:

              Wish I did ’cause it—We had it up until the last time I talked
       to [Pulliam] and then—then she had said that Wilken’s had given
       our information to her—to her as to where the vehicle was. And
       then it was maybe three, maybe four days after that that that van
       come up missin’ again.


8
 Burington testified he stored the van on his business property after towing it from
Calmar to Waukon.
                                            7


Burington did not report to the police that the van had been stolen again.

         Seeking possession of the van, Pulliam filed a replevin action in the small

claims division of the Iowa District Court for Allamakee County in April 2015. She

named Danny Macs and Wilken’s as defendants.9 She asserted she owned the

van and its value was $3000, and she requested possession of the van. The

defendants denied Pulliam’s claims and filed a $5000 counterclaim for the costs

of towing and storing the van.10 The court ordered the counterclaim would not be

heard in the replevin action. See Iowa Code § 643.2 (2015) (“[T]here shall be no

joinder of any cause of action not of the same kind, nor shall there be allowed

any counterclaims.” (emphasis added)).

         The case was tried to a magistrate in June 2015. After the parties rested,

the court asked: “This would be a bailment case; correct? (Inaudible) agree?”

Counsel for Pulliam responded: “In part.” Counsel for Danny Macs replied: “In

part, I think with purposes of—(inaudible) calculation.” The magistrate’s August

2015 order granted Pulliam’s request for replevin.              Since the van was not

available to return, the court entered judgment in favor of Pulliam and against

Danny Macs in the amount of $3000 plus costs and interest.

         Pursuant to Iowa Code section 631.13, Danny Macs appealed to the

district court. It challenged dismissal of its counterclaim. It also noted the court

had determined a bailment was created, and since the case was decided on a

bailment theory, it should have been allowed to present evidence of the costs it

incurred in maintaining the bailment. It asked that the case be reviewed de novo,


9
    Wilken’s was dismissed out by stipulation of the parties.
10
    Nothing in the record shows how this figure was computed.
                                         8


that it be allowed to present new evidence, and that it be allowed to submit a

brief on appeal.

         Written briefs were not filed, and the appeal was heard without further

evidence. See Iowa Code § 631.13(4). The district court reviewed the record de

novo. See Sunset Mobile Home Park v. Parsons, 324 N.W.2d 452, 454 (Iowa

1982).     In November 2015, the district court entered its order affirming the

magistrate’s judgment. After reviewing the record, the district associate judge

(DAJ) concluded substantial evidence supported the magistrate’s findings,

finding the only error was in the magistrate’s ruling regarding the value of the

van, which should have been the value of the van at the time it was taken.

However, the court noted the magistrate “addressed this matter with counsel at

the conclusion of the hearing, and both parties agreed the van would be valued

at $3000.”

         Danny Macs applied to the supreme court for discretionary review

pursuant to section 631.16. The supreme court granted the application in March

2016. The appeal was transferred to this court in January 2017.

         II. Standard of Review.

         Our standard of review is for correction of errors at law. See De Stefano

v. Apts. Downtown, Inc., 879 N.W.2d 155, 164 (Iowa 2016) (“In a discretionary

review of a small claims action, the nature of the case determines the standard of

review.” (citation omitted)). Our review of small claims actions tried at law is for

correction of errors at law. See id. Replevin is an action at law. See First Trust

& Sav. Bank v. Guthridge, 445 N.W.2d 401, 402 (Iowa Ct. App. 1989). The

standard of review in a replevin action is for correction of errors at law. See
                                         9

Prenger v. Baker, 542 N.W.2d 805, 807 (Iowa 1995). We are bound by the trial

court’s findings of fact so long as they are supported by substantial evidence in

the record. See Smith v. State, 845 N.W.2d 51, 53 (Iowa 2014).

         III. Discussion.

         A. Pulliam’s Request for Replevin.

         “Replevin is a specialized statutory remedy with a narrow purpose

designed to restore possession of property to the party entitled to possession.”

Roush v. Mahaska State Bank, 605 N.W.2d 6, 9 (Iowa 2000). “The gist of a

replevin action is enforcement of plaintiff’s right to immediate possession of the

property wrongfully taken or detained.” Flickinger v. Mark IV Apartments, Ass’n,

315 N.W.2d 794, 796 (Iowa 1982).         “A wrongful detention occurs when the

defendant wrongfully withholds or retains possession of the property sought to be

recovered.” Id. The plaintiff bears the burden of proving by a preponderance of

evidence that he or she was entitled to possession at the time the action was

filed. See Marx Truck Line, Inc. v. Fredricksen, 150 N.W.2d 102, 105 (Iowa

1967).

         It is undisputed Pulliam owned the van. “The fact of ownership draws with

it the right of possession.      If nothing further appears, the law raises the

presumption the owner is entitled” to its possession. Varvaris v. Varvaris, 124

N.W.2d 163, 165 (Iowa 1963). As between parties, “a lienholder’s possessory

right is neither waived nor destroyed where the involved personalty is

involuntarily taken from him by the actual owner.” Iowa Truck Ctr., Inc. v. Davis,

204 N.W.2d 630, 632 (Iowa 1973). If Danny Macs had a valid artisan’s lien for

the original towing and storage at the time the replevin action was filed, it would
                                        10


have had a possessory interest in the van that could have trumped Pulliam’s

interest in immediate possession of the van.11 But, that legal issue was not

raised before the magistrate, on appeal to the DAJ, or to us. Issues not raised

before or decided by the lower court will not be considered on appeal by this

court. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). Although the

magistrate’s order, which was affirmed by the DAJ, does not specifically say so,

in granting Pulliam’s request for replevin, it may be inferred that the magistrate

found that Pulliam was entitled to immediate possession of the van. See Hubby

v. State, 331 N.W.2d 690, 695 (Iowa 1983). “Findings of fact are given a liberal

construction favorable to the judgment.” Id.

      One who is not in possession of property of another or colluding as to

keeping possession cannot be made liable in an action of replevin. 12 See Carr v.

King & Tomlinson, 169 N.W. 133, 134 (Iowa 1918); Coffin v. Gephart, 18 Iowa

256, 258 (1865). Because the van was stolen a second time, Danny Macs no

longer had possession of the van at the time Pulliam filed her replevin action.

Under the circumstances, Pulliam’s action was dead in the water upon filing. But

again, this issue was not raised before the magistrate, on appeal to the DAJ, or


11
   The magistrate found:
                Since the City of Waukon and/or the police department is not a
        party to this action the court is not required nor need address the validity
        of the tow order to start with. Health and safety are legitimate reasons to
        tow a vehicle. What is unclear is why the owner who was present, able
        and willing to move the car in the first place was not first given an
        opportunity to do so. It is questionable that the original tow fee should
        have been the responsibility of the owner/plaintiff to begin with. But that
        is not an issue that need be addressed in this replevin action.
12
   Our supreme court has not determined whether an action for replevin may be based
upon constructive possession. See Roush, 605 N.W.2d at 9. In any event, because the
van was stolen from Danny Macs, Danny Macs could not have been found to have
constructive possession of the van.
                                         11

to us. Consequently, we do not consider the issue in our analysis. See Meier,

641 N.W.2d at 537. The magistrate found the van was not in Danny Macs’s

possession. Since the van was not available for return, the magistrate issued a

judgment for its value, an option available under section 643.19.              The

magistrate’s replevin judgment was affirmed by the DAJ.

       On appeal to this court, Danny Macs contends this is a case of bailment—

not replevin—and argues Pulliam “did not prove the elements of negligence to

warrant a judgment against a constructive bailee.” Danny Macs further argues

the magistrate “clearly decided the case on a bailment theory,” based upon the

judgment. We disagree, for calling a tail a leg does not make it a leg.

       Here, it is easy to see how the parties were steered off course into the

waters of bailment.    Despite the fact that the case was pled and tried as a

replevin action, after the parties rested, the magistrate asked if the case was one

of bailment, and the parties’ attorneys agreed in part. Additionally, the magistrate

included the following finding in his order:

              The court further finds that when the car was towed by
       Danny Macs the second time, a bailment was created. Danny
       Macs came into lawful possession of the van because law
       enforcement called them to tow it from Calmar. Since it was not a
       voluntary action by [Pulliam], it is a constructive bailment. The
       control and possession of the van was entirely held by Danny Macs
       and this business had a full transfer of the van and sole custody of
       it. As such, Danny Macs is responsible for the vehicles it has in
       storage. Liability for the missing car lies with [Danny Macs].

(Citation omitted.) Nevertheless, it is clear the magistrate’s order is one founded

upon the replevin action—not bailment or negligence.              In affirming the

magistrate’s judgment, it is also clear the DAJ treated the case as one of replevin
                                        12


and not bailment or negligence. Therefore, in deciding this appeal, we set aside

the parties’ bailment and negligence arguments.

       Given the above discussion, we agree with the DAJ that substantial

evidence supports the magistrate’s factual findings.      We therefore affirm the

grant of Pulliam’s request for replevin. And it follows that the magistrate properly

denied Danny Macs’s counterclaim. See Iowa Code § 643.2.

       B. Amount of the Judgment.

       Danny Macs also appeals the amount of the judgment, contending that it

does not represent the fair market value of the van and that he did not stipulate

to the valuation. We agree.

       The party found to be entitled to the property may opt for return of the

property or judgment for its value. See id. §§ 643.17, .19. The value of the

property is to be estimated as of the date when possession was wrongfully taken,

or at least from the date when the replevin action was filed. See Sheffield v.

Hanna, 114 N.W. 24, 27 (Iowa 1907). Although “value” is not defined in the

replevin statute, we believe the measure of damages is the fair and reasonable

market value of the property at the time of the taking. See Murray v. Conrad, 346

N.W.2d 814, 821 (Iowa 1984) (applying general rule to conversion case).

       No evidence of the fair market value of the van was presented at trial. At

that time, over two years had passed since Pulliam purchased the 2000 van for

$1500. In the meantime, the van sustained flood damage, was repaired, and had

been stored outdoors for extended periods of time. At the end of the trial, the

magistrate recognized he could not order the return of a missing vehicle, so he

had to come up with a value. The court suggested the value Pulliam used for
                                               13


registration purposes, and Danny Macs’s counsel responded, “That’s fine with

me.” Then, the court inquired as to what Pulliam paid for the van, and Pulliam’s

counsel said, “$1500 she paid for it.” The court said, “OK,” and Danny Macs’s

counsel said, “Yes.” Then Pulliam’s counsel stated there were approximately

$1600 in repairs. The court responded, “Okay, Got it. That’s where you came up

with the [$3000 valuation]. Okay.” There was no further response from counsel

for Danny Macs.

          Finding that Danny Macs did not object to the $3000 amount for the value

of the van, the magistrate entered judgment in favor of Pulliam and against

Danny Macs in that amount. On appeal, the DAJ noted the only error in the

magistrate’s ruling concerned the value of the van. The DAJ stated the correct

value of the van would be the value at the time it was taken. However, the DAJ

found the magistrate “addressed this matter with counsel at the conclusion of the

hearing and both parties agreed the property would be valued at $3000.”

          Upon our review, we conclude the evidence does not support a finding the

parties stipulated to a value of $3000 for the van. Nor does the evidence support

a finding that the van was worth $3000. Danny Macs suggests that we remand

for a hearing on damages and that “Pulliam should be ordered to present

licensing documents from the Treasurer’s Office as stipulated by the parties, with

damages set at the amount stated on the documents obtained from the

Treasurer’s Office, not to exceed the $1500 purchase price of the vehicle as

stated in Pulliam’s testimony.”13 We find it unnecessary to order a remand for



13
     The purchase price of the van is not reflected on the registration receipt in evidence.
                                       14


such fact-finding, which would no doubt subject the parties to additional attorney

fees and costs and would expend additional limited judicial resources.

      Here, the testimony was that Pulliam paid $1500 for the van. Danny Macs

did not dispute this figure at trial. The $1600 Pulliam paid in repairs did not

increase the value of the van.     At best, the repairs put the van back to its

condition prior to the flood. Consequently, the magistrate erred as a matter of

law in entering judgment in favor of Pulliam for $3000 and in not entering

judgment in the amount of $1500, the value of the vehicle at the time it was

wrongfully possessed.

      IV. Conclusion.

      Because the magistrate erred in entering judgment in favor of Pulliam for

$3000, we vacate that portion of the DAJ’s order affirming the $3000 judgment in

favor of Pulliam and against Danny Macs. We remand for entry of an amended

judgment in the amount of $1500. We affirm in all other respects.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH

DIRECTIONS.
