                                             IN THE COURT OF APPEALS OF IOWA

                                                             No. 15-0011
                                                      Filed September 14, 2016

                         BERNARD J. WIHLM and
                         PATRICIA M. BALEK,
                              Plaintiffs-Appellees,
CLERK OF SUPREME COURT




                         vs.

                         SHIRLEY A. CAMPBELL, individually,
                         And as executor of the ESTATE OF
                         JOHN JOSEPH WIHLM, and as trustee
                         of the JOHN JOSEPH WIHLM REVOCABLE
                         TRUST dated April 2, 2012, and PARTIES
                         IN POSSESSION,
                                Defendant-Appellant.
                         ________________________________________________________________

                               Appeal from the Iowa District Court for Cerro Gordo County, DeDra L.

                         Schroeder, Judge.
SEP 14, 2016




                               Defendant appeals from an order partitioning by sale certain inherited

                         properties. REVERSED AND REMANDED.
ELECTRONICALLY FILED




                               Michael G. Byrne of Winston & Byrne, P.C., Mason City, for appellant.

                               Collin M. Davison of Heiny, McManigal, Duffy, Stambaugh & Anderson,

                         P.L.C., Mason City, for appellees.



                               Heard by Tabor, P.J., and Bower and McDonald, JJ.




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MCDONALD, Judge.

       This case arises out of a dispute between three siblings regarding the

disposition of several parcels of land—totaling approximately 300 acres—they

inherited as tenants in common upon their father’s death. The land at issue is

divided into several parcels, including a 60-acre parcel and a 160-acre parcel,

both in Cerro Gordo County, and two 40-acre parcels, both in Franklin County.

Two of the siblings, Bernard Wihlm and Patricia Balek, brought partition actions

in Cerro Gordo and Franklin Counties. Wihlm and Balek sought to partition the

properties by sale and divide the proceeds. The third sibling, Shirley Campbell,

requested an in-kind division, at least with respect to her share. She requested

she be awarded approximately 79 acres, including a multi-generational family

homestead.       The partition actions were consolidated for trial in Cerro Gordo

County, and the district court ordered the property to be sold with the proceeds to

be divided equally. The district court entered its partition order on November 7,

2014. Campbell filed a motion to enlarge and amend pursuant to Iowa Rule of

Civil Procedure 1.904(2) on November 21. The district court denied the motion

to enlarge and amend, and Campbell filed her notice of appeal within thirty days

of that order.

       Before addressing the merits of the parties’ claims, we first address our

jurisdiction over the appeal. Generally, notice of appeal must be filed within thirty

days after the filing of a final order or judgment. See Iowa R. App. P. 6.101(1)(b).

“However, if a motion is timely filed under Iowa [Rule of Civil Procedure] 1.904(2)

. . . the notice of appeal must be filed within 30 days after the filing of the ruling




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on such motion.” Id. This tolling period applies only where the motion is both

timely and proper. See Harrington v. State, 659 N.W.2d 509, 513 (Iowa 2003)

(“If the rule 1.904(2) motion is not timely filed, however, it will not toll the thirty-

day time period for filing a notice of appeal.”); Bellach v. IMT Ins. Co., 573

N.W.2d 903, 904–05 (Iowa 1998) (stating that an improper motion will not toll the

time period to file an appeal). To be timely, a Rule 1.904(2) motion must be filed

“within fifteen days after filing of the verdict, report or decision.” Iowa R. Civ. P.

1.1007.

       Wihlm and Balek contend this court lacks jurisdiction because Campbell’s

Rule 1.904(2) motion was neither timely nor proper.           Wihlm and Balek first

contend the appeal was untimely because Campbell did not file her brief in

support of her motion to enlarge and amend within fifteen days of the partition

order. Rule 1.1007 requires only that the motion be filed within fifteen days. The

rule does not address briefing. Here, Campbell filed her motion fourteen days

after the order was entered. Nothing more was required to meet the timeliness

requirement.    Wihlm and Balek also argue Campbell’s motion was improper

because it did “nothing more than rehash legal issues raised and decided

adversely to Campbell.”       We disagree.       Campbell’s Rule 1.904(2) motion

requested the district court to reconsider certain facts and asked for an

expansion of the order. If a motion “asks the court to examine facts it suspects

the court overlooked and requests an expansion of the judgment in view of that

evidence, then the motion is proper.” Sierra Club Iowa Chapter v. Iowa Dep’t of

Transp., 832 N.W.2d 636, 641 (Iowa 2013) (citing City of Waterloo v. Black Hawk




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Mut. Ins. Ass’n, 608 N.W.2d 442, 444 (Iowa 2000)). Because Campbell’s motion

was timely and proper, the jurisdictional appeal deadline was tolled.              We

conclude we have jurisdiction over the appeal.

        A partition of real property is an equitable proceeding. Iowa R. Civ. P.

1.1201(1). Our review is de novo. Spies v. Prybil, 160 N.W.2d 505, 507 (Iowa

1968). Even on de novo review, however, we afford some deference to the

decision of the district court because of “notions of judicial comity and respect;

recognition of the appellate court’s limited function of maintaining the uniformity

of legal doctrine; recognition of the district court’s more intimate knowledge of

and familiarity with the parties, the lawyers, and the facts of a case; and

recognition there are often undercurrents in a case—not of record and available

for appellate review—the district court does and should take into account when

making a decision.” In re P.C., No. 16-0893, 2016 WL 4379580, at *2 (Iowa Ct.

App. Aug. 17, 2016).

        “The general rule, both at common law and by statute, favors partition in

kind.   This is no longer true in Iowa, however.”        Spies, 160 N.W.2d at 508

(internal citation omitted). Iowa Rule of Civil Procedure 1.1201(2) provides as

follows:

        Property shall be partitioned by sale and division of the proceeds,
        unless a party prays for partition in kind by its division into parcels,
        and shows that such partition is equitable and practicable. But
        personalty which is subject to any lien on the whole or any part can
        be partitioned only by sale.

“The rule . . . is unequivocal in favoring partition by sale and in placing upon the

objecting party the burden to show why this should not be done in the particular




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case.” Spies, 160 N.W.2d at 508. The objecting party must show the in-kind

division is both “equitable and practicable.”      Id.   “When partition can be

conveniently made of part of the premises but not of all, one portion may be

partitioned and the other sold, as provided in the rules in this division.” Iowa R.

Civ. P. 1.1201(3).

      The disposition of this case turns largely on the testimony of three expert

witnesses and whether or not appraising farmland is so speculative that partition

in-kind becomes impracticable. The parties agreed Vernon Greder, a certified

real estate appraiser, would appraise the properties. He valued the properties at

$3,144,000. Greder testified that if the property were sold at auction, he would

recommend it be sold in separate parcels because doing so would attract more

bidders for each parcel. Greder thus concluded the parcels Campbell requested

could be divided from the remainder of the properties without materially

impacting the sale value of the remainder of the properties at auction. Greder

testified the value of the property Campbell sought was approximately one-third

of the value of the properties. He testified the in-kind division would be fair and

equitable. Greder did concede, however, that the value of farmland had been in

some fluctuation.

      Reed Kuper, who owns a real estate business, testified about the

advantages of selling the parcels together.         Kuper testified it would be

advantageous to keep the land together due to the benefits of economies of

scale. Kuper believed bidders would prefer the land as a whole. Kuper further

testified that this was particularly true for these properties because of large




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quality differences between the parcels. When questioned whether using the

appraisal values in this case would produce an equitable result, Kuper said no.

Kuper explained, in his opinion, appraisals do not factor in “fence line buyers”

that overpay for land to which they are emotionally attached. Kuper also testified

that market fluctuations made appraisals largely speculative.        Kuper is not a

certified appraiser.

       Cory Behr, co-owner of an auction business, testified that his farm sales

almost always exceed the appraised value of the property and that auctions

establish a fair market value. Behr testified that separating Campbell’s requested

parcels from the remainder of the properties would have a limited effect on the

land’s total value. Indeed, like Greder, Behr testified it would be preferable to sell

the parcels separately to maximize the sale value. When questioned whether

Greder’s calculations remained equitable, Behr responded “[t]he poorer quality

soils have declined in value.” Behr stated the only way to find the true value of

the land was to put interested buyers into a room to bid on it. Anything else

would be speculative, in his opinion. Behr is not a certified appraiser.

       The district court’s conclusion that Campbell failed to prove the division of

the properties in kind was both equitable and practicable was predicated on the

assumption, supported by Kuper’s and Behr’s testimony, that appraising farm

property was largely a speculative endeavor.        The district court stated “[t]he

volatile nature of farmland as affected by the crop prices has made a partition in

kind merely guesswork when factoring in the nature and qualities of the land.”

The district court concluded: “The Court is simply not in a position to engage in




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guesswork to determine a division in kind, which may or may not be equitable to

the parties. The true market value of the land will be ascertained through a sale

on the free market.”

       We disagree with the conclusion that appraisal of farmland, generally, is

merely a speculative endeavor. See Hawk v. Council Bluffs Airport Auth., No.

05-0133, 2006 WL 1230010, at *6 (Iowa Ct. App. Apr. 26, 2006) (“Appraisal is

not an exact science, but a subjective exercise of professional judgment by

qualified and skilled individuals who may reasonably disagree.”) (citing Sears,

Roebuck & Co. v. Sieren, 484 N.W.2d 616, 617 (Iowa Ct. App. 1992)). The

record reflects that appraisal is absolutely more certain than mere speculation.

Further, the appraiser’s opinion in this case was well-supported. Greder was a

certified appraiser with extensive experience in the area.       His appraisal was

based on the economic value of the property based on CSR ratings and

comparable sales, both providing reliable data points to appraise the properties

at issue. In his testimony, he acknowledged the value of farmland, particularly

low-quality farmland, had been decreasing in the area. His appraisal accounted

for current market conditions.     We see no reason to reject the concept of

appraisal, generally, and Greder’s testimony, specifically, out of hand.

        On de novo review, we conclude Campbell proved in-kind division of the

property was equitable.     The certified appraiser, agreed upon by all parties,

testified the land requested by Campbell was “a solid representation of near one-

third of the total value.” Greder further testified that the balance of the remaining

real estate, which would be awarded to the two other siblings, was a “solid




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representation of two-thirds of the total value.”    The record reflects that the

property Campbell seeks can be divided without material diminution of the value

of the remainder. See 68 C.J.S. Partition § 123 (stating the test is “whether or

not the value of the share of each, after partition, would be materially less than

the share of the money equivalent that each could probably obtain from the

whole”).   According to Wihlm and Balek, Campbell’s property may be worth

$36,000 more than their shares if sold. Even if this were true, it is an immaterial

difference where the properties appraised at more than $3 million.        A further

equitable consideration favors division in-kind. The property at issue is a multi-

generational family farm. While Campbell does not farm the property, all else

being equal, the sentimental attachment she may have to the property weighs in

favor of dividing her interest in kind. See id. (stating that “length of owner and

sentimental attachment to property may be considered in a partition action”).

       On de novo review, we conclude Campbell proved division of the property

was practicable.    “When partition can be conveniently made of part of the

premises but not of all, one portion may be partitioned and the other sold. . . .”

Iowa R. Civ. P. 1.1201(3); see also Newhall v. Roll, No. 14-1622, 2015 WL

5965205, at *3–5 (Iowa Ct. App. Oct. 14, 2015) (reversing the district court’s

order to partition by sale as to avoid “guesswork” and ordering a partition in kind)

(further review granted Jan. 19, 2016); Anderson v. Johnson, No. 03-2045, 2004

WL 2804854, at *2 (Iowa Ct. App. Dec. 8, 2004) (affirming the district court’s

order awarding a partition in kind and a partition by sale). The land Campbell

seeks to divide from the other parcels is readily identifiable and largely




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contiguous. There are no topographical issues that would make the division

impracticable. Indeed, two of the three experts testified the properties can and

should be sold in separate parcels.

       The parties raise two other issues that must be addressed. Campbell

argues that the appointed referee, Behr, had a conflict of interest because he

also served as an expert witness. Campbell cites to a Nebraska case, Phillips v.

Phillips, 104 N.W.2d 52, 55 (Neb. 1960), for the proposition that the court should

not appoint someone to act as a referee in a partition case who is “biased or

prejudiced to any party to the action.” Further, “objections to the appointment of

anyone to act as referee, on the ground of his being biased or prejudiced, are

addressed to the sound discretion of the court making the appointment and the

overruling thereof will not be set aside unless the record affirmatively shows that

such discretion has been abused.” Phillips, 104 N.W.2d at 55. The Nebraska

Supreme Court found the trial court did not abuse its discretion in appointing as a

referee an attorney who was litigating another matter against one party’s

counsel. See id. at 55–56. The court found there was no showing of prejudice or

bias. See id. at 56.

       Likewise, here there was no evidence presented that the auctioneer, Behr,

was prejudiced or biased against Campbell.         There is no conflict of interest

because Behr’s interests are aligned with his responsibility to act as a referee to

sale the land. Behr’s job is to maximize the profits for all parties, as well as

himself. There is no evidence Behr will fail to carry out his duties as a referee.

The district court did not abuse its discretion in appointing Behr as the referee.




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       Finally, Wihlm and Balek request appellate attorney fees. Under Iowa

Rule of Civil Procedure 1.1225, “[o]n partition of real estate, but not of personal

property, 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.” Iowa R. Civ. P. 1.1225.

The rule says nothing about appellate attorney fees. See Gleason v. Gleason,

No. 13-0876, 2015 WL 9450403, at *6 (Iowa Ct. App. Dec. 23, 2015) (denying

request for appellate attorney fees because the “provision says nothing about

appellate attorney fees” and there was no argument that appellate attorney fees

be read into the provision). Wihlm and Balek argue the applicable rules of civil

procedure do not limit the award of fees to only those incurred as part of trial, but

fail to cite to any authority. We therefore decline Wihlm and Balek’s request.

       For the foregoing reasons, we reverse the judgment of the district court

and remand this matter for in-kind partition of the property as requested by

Campbell and for partition by sale of the remainder with the proceeds to be

divided between Wihlm and Balek.

       REVERSED AND REMANDED.




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                                               State of Iowa Courts

Case Number                     Case Title
15-0011                         Wihlm v. Campbell




Electronically signed on 2016-09-14 08:46:46




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