                    IN THE COURT OF APPEALS OF IOWA

                                 No. 15-2165
                           Filed November 9, 2016


LEAH N. HINDERKS, Individually and as Administrator of the Estate of
Larry H. Hinderks, deceased, and CORE BUSINESS LEASING LLC,
RUSSELL NADEN f/d/b/a NADEN INDUSTRIES, and CUSTOM
APPLICATIONS AG, LLC,
      Plaintiffs-Appellees,

vs.

LUELLA E. HINDERKS and WADE HINDERKS,
     Defendants-Appellants.
________________________________________________________________


      Appeal from the Iowa District Court for Hamilton County, James A.

McGlynn, Judge.



      The defendants in an action for replevin appeal from the district court’s

ruling. AFFIRMED.




      Darren Robinson and Adam R. Triplett of McEnroe, Gotsdiner, Brewer,

Steinbach & Rothman, P.C., West Des Moines, for appellants.

      Joseline L. Greenley, Webster City, for appellees.



      Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
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POTTERFIELD, Presiding Judge.

         Luella and Wade Hinderks, defendants in an action for replevin, appeal

from the district court’s ruling in favor of the plaintiffs.

I. Background Facts and Proceedings.

         The decedent, Larry, and his father, Dennis, farmed together at the family

homestead for a number of years. During those years, each bought machinery

and tools and often kept them in buildings on the family property.

         When Dennis died in 2001, he was survived by his wife, Luella. Luella

would have inherited all of Dennis’s land and possessions, but she executed a

disclaimer “of all my interest in the farm equipment described in Exhibit A,” which

had the effect of allowing the equipment to pass to Larry. Luella filed a second

disclaimer for one-half interest in the family farmland, which also then passed to

Larry.

         Larry died intestate in September 2014. At the time, he was survived by

his third wife, Leah, and his sons from previous marriages, Wade and Jay. Wade

Hinderks is a named defendant in this action.

         Leah was named the administrator of Larry’s estate. As such, she took

steps to collect his property, and she contacted a local auctioneer to arrange for

a sale to take place on the family farm. The auction was set to take place on

February 28, 2015. In the days leading up to it, Luella put up “No Trespass”

signs around the farm, put a chain across the driveway entrance, and sent out

notices that she was denying entry to the farmstead. Luella and Wade told Leah

they were disputing ownership over some of the items listed for sale.          The
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auction had to be postponed, with the items eventually transported to a different

site for sale.

       In March, the plaintiffs filed this action for replevin. The action claimed

more than 230 items that the defendants were preventing the plaintiffs from

recovering from the farmstead.

       Leading up to the trial, the parties were able to reach agreements on more

than 130 of the items in dispute, and two stipulations were filed with the court.

       The trial took place on September 30 and October 1, 2015. In its written

ruling, the court found almost completely in favor of the plaintiffs, ordering all but

three items returned to the plaintiffs. Additionally, the court awarded the plaintiffs

damages: $748.10 in lost advertising expenses for the cancellation of the first

auction; $22,824.89 in reduced proceeds due to the fall in the market between

the planned sale and the actual sale; $2,000 in expenses for the removal and

storage of property; and “such further expenses and losses which will be suffered

by the estate in selling the remaining assets which would have been sold on

February 28.”

       The defendants appeal.

II. Standard of Review.

       Replevin is an action at law. First Trust & Sav. Bank v. Guthridge, 445

N.W.2d 401, 402 (Iowa Ct. App. 1989). We review for correction of errors at law.

Ankeny Cmty. Sch. Dist. v. Van Gorp, 501 N.W.2d 506, 507 (Iowa 1993).

III. Discussion.

       The defendants maintain the district court made several errors in its ruling.

They maintain the court wrongly determined Luella’s disclaimer was all-
                                         4


encompassing and wrongly included certain items affixed to the property as

“trade fixtures” removable by Larry.      Additionally, they maintain the court’s

determination the estate had the right to hold the February 28 auction on the

farmstead and the award of the corresponding damages—for having to move the

site of the auction and transport the equipment and tools—was in error.

      1. Replevin Generally.

      “Replevin is an action to recover specific personal property that has been

wrongfully taken or wrongfully detained, with an incidental right to damages

caused by reason of such detention.” Flickinger v. Mark IV Apartments, Ass’n,

315 N.W.2d 794, 796 (Iowa 1982). “A wrongful taking need not be by forcible

dispossession; any unlawful interference with, or assertion of control over, the

property is sufficient.” Id. “A wrongful detention occurs when the defendant

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

recovered.” Id. “Once there has been a wrongful taking or detention, possession

does not become rightful until some form of redelivery occurs.            Wrongful

possession of property does not become rightful merely by agreeing to allow

recovery by the party entitled to possession.” Id. at 797.

      If the plaintiffs satisfy the burden of proving a wrongful taking of property,

the burden then shifts to the defendants to show they no longer have possession.

See id. If the defendants are unable to do so, it is presumed that possession

continued. Id. The court may also award damages, as follows:

            (1) The injured party may demand the return of [their]
      property plus damages for its wrongful detention.
            (2) [They] may seek judgment for the money value of the
      property, treating the conversion as complete either at the time it
      was taken or at the time of trial.
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              (3) If the former, [they] may have interest on the value as
       determined by the trier of fact from the date of the seizure until the
       date of judgment and nothing more. The judgment itself, of course,
       bears interest thereafter.
              (4) If [they] elect[ ] under (2) above to rely on a conversion
       as of the time of trial, [they] may have the money value of the
       property as of that date, plus damages for loss of use from the time
       it was seized until the time of trial.

Id. (citation omitted).

       2. Disclaimer.

       Here, the district court determined Larry’s estate was entitled to possess

everything in the shops on the farmstead. The court found Luella had intended

to disclaim all of the farm-related personal property owned by Dennis and any

other unaccounted-for property was either already owned by Larry at the time of

Dennis’s death or purchased by Larry afterward.

       The defendants claim this finding is in error, but we agree with the district

court. The list of farm equipment and tools in the probate inventory was the

exact same list Luella used in the disclaimer that she filed. Before Dennis’s

death, Luella and Dennis consistently filed depreciation schedules, which

included farm equipment and tools.       After Dennis died and Luella filed the

disclaimer, her depreciation schedules no longer appeared to contain any items

that would be used for the farming operation. Instead, Larry claimed the items

and the depreciation.

       Luella claimed at trial, and she argues again on appeal, that the probate

inventory was not a complete list. But as the district court noted, the probate

inventory was certified as a complete list—under the penalty of perjury—at the

time it was filed. And Luella never suggested that the list was anything other
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than complete before this litigation began. Some of the items she argued were

accidentally left off the probate list but purposely left off the disclaimer were large

items—such as tractors—that have been on the property since the time of her

husband’s death.     We believe this belies her testimony that the items were

accidentally left off the probate inventory. Furthermore, in the years since his

father’s death, Larry appears to have sold and traded items at will—even items

that were not explicitly listed in the disclaimer. As the district court summarized,

“For 14 years, neither defendant questioned Larry’s right to possess, use,

control, or even sell any of the items on the farmstead.”

       We agree with the district court that the disclaimer filed by Luella was

meant to be all-encompassing in regards to the machinery and tools necessary

to farm. As such, Larry’s estate had the right to possess those items.

       3. Trade Fixtures.

       “‘Trade fixtures’ is a term usually employed to describe the property which

a tenant has placed on rented real estate to advance the business for which it is

leased and which may, as against the lessor, be removed at the end of the

tenant’s term.”    Winnike v. Heyman, 169 N.W. 631, 632 (Iowa 1918).                To

determine if something is a trade fixture, we consider “the intention of defendant

in putting them in, the manner of their attachment to the building, and the manner

and the purpose of their use in connection therewith.” Id. at 633. The question

of intent is one for the factfinder. See id. (“The issue[ ] as to intent . . . should

have been submitted to the jury.”).
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       Here, the district court held that each of the items1 claimed by the

defendants as fixtures are trade fixtures, which the tenant—now Larry’s estate—

had the right to remove. The defendants maintain this ruling is in error because

(1) it is not clear Larry was the person to bring and attach the items on to the

realty, and (2) Larry was unable to testify about his intent regarding the items.

       Most of the items listed by the defendants can be traced back to Larry’s

purchase through the depreciation schedules entered into evidence by the

plaintiffs. Both the parts washer and the tire machine are listed on Larry’s 1999

depreciation schedule—before he received anything from Dennis’s estate—and it

lists those items as going into service in June and August of 1980. The same is

true for one of the air compressors—put into service in July 1993—and the

Westfield auger—put into service in December 1996.                 The other two air

compressors are listed on Core Business Leasing LLC’s depreciation schedule

and were purchased for the business in 2010. Last, the grain dryer can be found

on Larry’s 2001 depreciation schedule, and the dryer is listed under “machinery

and equipment” as going into use in January 2000.

       For these items that we have clear evidence that Larry purchased, we

cannot say the district court erred in finding that Larry intended them to be

attached to the realty only insofar as he used the buildings for his business

purposes. See In re Van Hove, 84 B.R. 567, 570 (Bankr. N.D. Iowa 1988) (“A

fixture may be a ‘trade fixture’ if the reason for the annexation was to aid the

1
  Specifically, the defendants maintain the parts washer, Westfield auger, MC Grain
Dryer, the DMC Push pack, the unloading auger, three air compressors, and the tire
machine are fixtures. They also claim a storage container is a fixture, but we note that
storage container was included in the second stipulation as property belonging to Larry’s
estate.
                                          8


tenant and making better use of the premises. As to a tenant, rules of removal

are more lenient and in general, trade fixtures are removable by a tenant at the

termination of the tenancy.” (citing Speer v. Donald, 207 N.W. 581, 582 (Iowa

1926); Ray v. Young, 142 N.W. 393, 395–96 (Iowa 1913))). Larry’s estate had

the right to remove these items from the premises as trade fixtures. See, e.g.,

Leslie Pontiac, Inc. v. Novak, 202 N.W.2d 114, 117 (Iowa 1972) (finding the

tenant had the right to remove a steel building that it placed on the premises);

Marty v. Champlin Ref. Co., 36 N.W.2d 360, 364 (Iowa 1949) (finding an

automobile lift, air compressors, tanks, and signs were trade fixtures of the filling

station that could be removed by the tenant).

       That leaves only item #60, the DMC push pack, and item #74, the

unloading auger. We note the unloading auger was received by Larry as part of

the disclaimer, but we cannot find the DMC push pack on any of the depreciation

schedules in the record before us.        According to testimony, both items are

connected to the grain dryer. Because we have already categorized the grain

dryer itself as a removal trade fixture, the push pack and the unloading auger

cannot be said to be attached to the realty of the defendants. Thus, we do not

believe either of the two items falls within the definition of fixtures. See Cornell

Coll. v. Crain, 235 N.W. 731, 732 (Iowa 1931) (stating that of the “three

requisites” is the “actual annexation to the realty or something appurtenant

thereto” and the “method of attachment to the soil is of significance”). That being

said, we do not find the district court erred in its determination that Larry’s estate

could remove the items. We believe the items either passed to Larry through the
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disclaimer, as the unloading auger appears to have done, or were already the

property of Larry at the time of Dennis’ death.

       4. Right of Entry.

       Next we consider whether Larry’s estate had the right to enter and hold

the auction on the farmstead. The district court considered Larry’s rights under a

farm tenancy and determined that, because a termination notice had not been

given to Larry by September 1, 2014, his successor still had the right to use the

land and the buildings in February 2015.              See Iowa Code § 562.7 (2015)

(requiring that written notice be provided upon either party by September 1 in

order to terminate lease); see also Iowa Code § 562.5 (requiring farm tenancies

to terminate on the first day of March). The defendants maintain the statutory

requirements for farm tenancies apply only to the land used for crops and the

district court’s inclusion of the buildings and shops on the farmstead was an

improper expansion of the statute.

       Even if the buildings were not included in the farm tenancy, Larry was at

least a tenant at will.2 Larry had used the building for the farming operations and

his other businesses both during his father’s lifetime and in the fourteen years

after his death, and Luella clearly consented to such action.                   There was

testimony that Larry had entered into a verbal cash rent lease with Luella. See

Iowa Code § 562.4 (“A person in possession of real estate, with the assent of the



2
  We note that in its ruling, the district court stated, “Luella disclaimed Dennis’s undivided
one-half interest in the family farm to Larry.” We do not have this second disclaimer in
the record before us, so we cannot confirm whether the disclaimer included only tillable
acreage or the entire farmstead. If Larry owned an undivided one-half interest in the
property, including the shops and outbuildings, his estate would clearly have had the
right to enter the property.
                                         10


owner, is presumed to be a tenant at will until the contrary is shown . . . .”).

Moreover, neither Luella nor Wade presented any evidence that notice of

termination was ever given. Id. (“[T]hirty days’ notice in writing must be served

upon either party or a successor of the party before termination of the tenancy.”).

       Because Larry’s tenancy had not terminated, his estate had the right to

enter the property and use it for the auction.

       5. Damages.

       Last, the defendants maintain the district court erred in determining the

amount of damages.       They argue the court incorrectly relied on the figures

provided by someone not properly designated as expert.           Additionally, they

assert that the court’s award of “such further expenses and losses which will be

suffered by the estate in selling the remaining assets which would have been

sold on February 28” was improper.

       A. Expert. The defendants maintain the plaintiffs failed to disclose their

expert witness, Jason Hallberg, and that their failure precludes the court’s

reliance on his testimony to determine damages. The plaintiffs respond that they

substantially complied with the requirements of Iowa Rule of Civil Procedure

1.500(2), so the court’s reliance was proper.

       Both parties listed Hallberg on their initial disclosures of witnesses. The

plaintiffs’ disclosure stated that Hallberg was expected to testify about the

“description and location of property; valuation; valuation for damages.”       The

plaintiffs listed their “computation of each category of monetary damages” and

included both the advertising costs and estimate of reduced sale proceeds with

the note “documentation from Jason Hallberg.”        Additionally, in the plaintiffs’
                                          11


answers to the defendants’ interrogatories, they were asked to state any and all

facts upon which they based their valuations of items listed in the replevin action

and their claim the sale proceeds were reduced.             For each, the plaintiffs

answered they were basing their claims on the input of Hallberg, who had years

of experience selling similar equipment at auction.

       “We hold a liberal view on the admissibility of expert testimony in this

state.” Quad City Bank & Trust v. Jim Kircher & Assocs., P.C., 804 N.W.2d 83,

92 (Iowa 2011). See also Yates v. Iowa W. Racing Ass’n, 721 N.W.2d 762, 774

(Iowa 2006) (“This court has long been ‘committed to a liberal rule [that] allows

opinion testimony if it is of a nature which will aid the jury and is based on special

training, experience, or knowledge [as] to the issue in question.’” (alterations in

original) (citation omitted)).   Considering the broad discretion given to district

courts in determining whether to admit expert testimony, here we do not believe

the district court abused its discretion by allowing the witness to testify and

considering his testimony in reaching its decision. See Klein v. Chicago Cent. &

Pacific R.R. Co., 596 N.W.2d 58, 60 (Iowa 1999) (“We accord the trial court

broad discretion in the admissibility of expert testimony. We interfere only if clear

abuse is shown.” (citation omitted)).

       B. Indefinite Damages. The district court ordered that, after the plaintiffs

sold the items returned following the replevin action, “the estate shall file its proof

of the amounts received” and that “total shall be divided by .91 to arrive at the

likely amount which would have been received had the sale occurred on

February 28, 2015.” The court awarded the difference between the two as the

amount of lost sale proceeds suffered by the estate.
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       The defendants maintain the court’s action is improper. They rely, in part,

on the argument that “given the right market conditions, it is possible that the

property could be sold for more than it was valued on the date the petition was

filed.” While the defendants‘ assertion may be true, it has no bearing on the

issue at hand. In an action for replevin, the district court has the power to award

damages that exceed the value of the property that was detained. See Universal

C.I.T. Credit Corp. v. Jones, 227 N.W.2d 473, 479 (Iowa 1975). Additionally, we

see no error in waiting for more information to determine the proper amount of

damages. See Barry v. State Sur. Co., 154 N.W.2d 97, 101 (Iowa 1967) (“What

we have said indicates that all damages which were known or ascertainable at

the time the replevin action was tried must be included in that judgment. It does

not follow that a separate action for damages may never be maintained. There

are instances in which a litigant cannot determine his damages until after the

replevin action.”).

       For the foregoing reasons, we affirm the district court’s ruling and

judgment in favor of the plaintiffs.

       AFFIRMED.
