Robert M. Johnson, Trustee of the Robert M. Johnson Revocable Living Trust, and Kathryn M. Zimmer v. Des Moines Metropolitan Wastewater Reclamation Authority, Acting by and Through Its Operating Contractor, the City of Des Moines

IN THE SUPREME COURT OF IOWA
No. 11–0444

Filed May 18, 2012

ROBERT M. JOHNSON, Trustee of the Robert M. Johnson
Revocable Living Trust, and KATHRYN M. ZIMMER,
Appellees,

vs.

DES MOINES METROPOLITAN WASTEWATER
RECLAMATION AUTHORITY, Acting by and Through its
Operating Contractor, the City of Des Moines,
Appellant.
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ROBERT M. JOHNSON, Trustee of the Robert M. Johnson
Revocable Living Trust, KATHRYN M. ZIMMER,
and RMJ FARMS, LLC,
Appellees,

vs.

POLK COUNTY AVIATION AUTHORITY,
Appellant.

Appeal from the Iowa District Court for Polk County, Scott D.

Rosenberg, Judge.

Condemners appeal the district court’s order to consolidate

separate condemnation appeals under Iowa Rule of Civil Procedure

1.913. REVERSED AND REMANDED.

Gary D. Goudelock, Jr. and Glenna K. Frank of City of Des Moines,

for appellant Des Moines Metropolitan Wastewater Reclamation

Authority.

James E. Nervig of Brick Gentry P.C., West Des Moines for

appellant Polk County Aviation Authority.
 2

Bernard L. Spaeth, Jr., Kevin M. Reynolds, and Kimberly S.

Bartosh of Whitfield & Eddy, P.L.C., Des Moines, for appellees.
 3

WATERMAN, Justice.

In this interlocutory appeal, we review the district court’s ruling

consolidating condemnation appeals from proceedings by two separate

condemning authorities taking property four months apart from the

same parent tract of farmland. The landowner, Johnson Farms, 1 moved

to consolidate its appeals pursuant to Iowa Rule of Civil Procedure 1.913,

contending they present common questions of law or fact and that

consolidation would promote judicial economy and protect against

inconsistent verdicts valuing the same land close in time. Johnson

Farms’ motion was resisted by both condemning authorities, the Polk

County Aviation Authority (PCAA) and the Des Moines Metropolitan

Wastewater Reclamation Authority (WRA).

The district court consolidated the appeals, finding common

questions of law or fact and a lack of prejudice. The district court found

consolidation would promote judicial economy and that potential

prejudice or jury confusion could be avoided through jury admonitions

and instructions. We respectfully disagree and note the dearth of

authorities supporting consolidation of condemnation appeals under

these unique circumstances. The trials will involve overlapping evidence

to ascertain just compensation for each taking from the same parent

tract. But the fact finders must determine just compensation for

different types of takings by separate condemning authorities four

months apart for unrelated projects. Certain evidence in each case is

inadmissible in the other. This creates a substantial risk of prejudice

and jury confusion. For that reason, we conclude consolidation was an

1Johnson Farms collectively refers to Robert M. Johnson, trustee of the

Robert M. Johnson Revocable Living Trust, and Kathryn M. Zimmer.
 4

abuse of discretion here. Accordingly, we reverse the district court’s

consolidation order and remand the cases for separate trials.

I. Background Facts and Proceedings.

Before the condemnations at issue, Johnson Farms owned 65.93

acres of agricultural land near the growing Des Moines suburb of

Ankeny. 2 The acreage borders the east side of the Ankeny Regional

Airport along Northeast 29th Street. Johnson Farms is no stranger to

condemnation proceedings. PCAA condemned nearly sixteen acres of

land to expand the airport in 1993 and 2001. In 2009, the City of

Ankeny condemned a .5-acre easement from this same parcel to lay new

waterlines and expand a roadway.

PCAA and WRA commenced their condemnations in 2010, four

months apart. In February, PCAA filed an application to condemn 4.17

acres in fee simple to extend the Runway Protection Zone for Runway 22

and relocate Northeast 29th Street. On March 24, a six-member

condemnation commission awarded Johnson Farms $345,000 as just

compensation. Johnson Farms appealed to the district court. 3

On June 21, WRA filed an application to condemn Johnson Farms’

land adjacent to PCAA’s 4.17-acre condemnation. WRA is constructing
the Four Mile Interceptor Sewer, which would run a sanitary sewer from

the Ankeny Southeast Water Pollution Control Plant to north

Des Moines. WRA sought to condemn .92 acres for a permanent sanitary

sewer easement and 9.43 acres for a temporary construction easement.

2The City of Ankeny’s population grew sixty-nine percent over the last decade,
increasing from 27,117 in 2000 to 45,852 in 2010. City of Ankeny, Population Basics,
http://www.ankenyiowa.gov/Index.aspx?page=112 (last visited March 23, 2012).
3This appeal was consolidated with another PCAA condemnation appeal
concerning land south of Johnson Farms, located on RMJ Farms. PCAA and RMJ
Farms have since settled the RMJ proceeding.
 5

The temporary construction easement is adjacent to the eastern edge of

the PCAA taking. A different six-member commission compensated

Johnson Farms $87,000 for the easements on August 2. Johnson Farms

also appealed this commission’s damage award to the district court.

Johnson Farms moved to consolidate the two appeals into a single

district court proceeding under Iowa Rule of Civil Procedure 1.913.

Johnson Farms argued the appeals require the juries to hear similar

valuation evidence and make similar valuation determinations.

Consolidation, therefore, would protect against inconsistent jury

compensation verdicts. Johnson Farms indicated it planned to argue the

condemning authorities’ multiple takings of adjacent land close in time

had a “combined effect” of reducing the value of their remaining land.

PCAA and WRA argued there were no common questions of fact because

the appeals involved different land, property interests, and condemning

authorities. The authorities also argued consolidation would prejudice

them by permitting the jury to hear inadmissible and confusing evidence

and improperly measure the damages.

The district court granted Johnson Farms’ motion to consolidate.

It found “the cases raise similar legal issues and that the evidence would

be substantially the same in both actions.” The district court also

determined consolidation “would not cause jury confusion but would

rather provide a complete picture of the allegations.” Further, any

dissimilar issues could be “remedied by proper jury instructions and

admonitions to the jury.” The district court concluded consolidation

“would promote judicial economy and save costs to all parties.”

WRA and PCAA filed an application for an interlocutory appeal of

the district court’s consolidation order. We granted the application and

retained the appeal.
 6

II. Scope of Review.

We review the district court’s consolidation ruling for abuse of

discretion. Kent Feeds, Inc. v. Manthei, 646 N.W.2d 87, 90 (Iowa 2002).

“[T]he question as to whether actions should be consolidated for trial

rests largely within the discretion of the trial court.” Schupbach v.

Schuknecht, 204 N.W.2d 918, 920 (Iowa 1973). We will find the district

court abused its discretion when it exercises “ ‘discretion on grounds or

for reasons clearly untenable or to an extent clearly unreasonable.’ ”

Everly v. Knoxville Cmty. Sch. Dist., 774 N.W.2d 488, 492 (Iowa 2009)

(quoting Schettler v. Iowa Dist. Ct., 509 N.W.2d 459, 464 (Iowa 1993)). “A

ground or reason is untenable . . . when it is based on an erroneous

application of the law.” Graber v. City of Ankeny, 616 N.W.2d 633, 638

(Iowa 2000). “Although our review is for an abuse of discretion, we will

correct erroneous applications of law.” Everly, 774 N.W.2d at 492.

III. Analysis.

A. The Consolidation Rule. Iowa Rule of Civil Procedure 1.913

permits the district court to consolidate separate actions. Rule 1.913

provides:

Unless a party shows the party will be prejudiced thereby the
court may consolidate separate actions which involve
common questions of law or fact or order a single trial of any
or all issues therein. In such cases it may make such orders
concerning the proceedings as tend to avoid unnecessary
cost or delay.

Iowa R. Civ. P. 1.913. The rule is modeled after Federal Rule of Civil

Procedure 42(a). 4 Accordingly, federal cases applying that Rule provide

4Federal Rule of Civil Procedure 42(a) provides:
(a) Consolidation. If actions before the court involve a common
question of law or fact, the court may:
 7

guidance here. Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417, 419–20

(Iowa 1994) (citing with approval the interpretation of Federal Rule 42 as

expressed in Cole v. Schenley Indus., Inc., 563 F.2d 35 (2d Cir. 1977)).

Like its federal counterpart, rule 1.913 “ ‘is a procedural device designed

to promote judicial economy, and consolidation cannot effect a merger of

the actions or the defenses of the separate parties.’ ” Id. at 420 (Iowa

1994) (quoting Cole, 563 F.2d at 38). Thus, while “cases may be

consolidated for trial, the cases generally preserve their separate

identity.” Id. Our consolidation rule embraces “[t]he modern trend . . . to

combine in one litigation all actions arising out of one transaction,” and

the rule should be “liberally construed to [achieve] this end.” Liberty

Loan Corp. of Des Moines v. Williams, 201 N.W.2d 462, 464 (Iowa 1972).

Consolidation rulings are discretionary. Kent Feeds, Inc., 646

N.W.2d at 90. The district court must exercise its discretion to

determine whether the separate actions “ ‘involve common questions of

law or fact’ ” and whether any party can “ ‘show[]’ ” prejudice. Williams,

201 N.W.2d at 464 (quoting Iowa R. Civ. P. 185, now rule 1.913). Our

rule was amended in 1955 to require the party claiming prejudice to

“show,” rather than merely allege, prejudice. Id. The advisory committee

added the showing requirement to take away the nonmoving party’s

de facto power to veto consolidation:

The effect of the change, as indicated in the previous
paragraph, was to require a showing of prejudice rather than
merely a claim thereof. It is now for the Court to determine
whether a claim of prejudice is well founded. When the rule

________________________________
(1) join for hearing or trial any or all matters at issue in the
actions;
(2) consolidate the actions; or
(3) issue any other orders to avoid unnecessary cost or delay.
 8
covering consolidation was first under consideration there
was great opposition to requiring a party to submit to
compulsory consolidation and the rule was deliberately set
up to merely provide authorization and to encourage
consideration of its advantages, but left practically an
absolute power of veto in any party. However, the greater
experience under the Federal Rules and under the restricted
Iowa rule indicated that the apprehension which existed
earlier was largely illusory. Hence, the veto power was
eliminated in favor of the exercise of judicial discretion.

Iowa R. Civ. P. 1.913 official cmt.

The Fourth Circuit summarized the district court’s role in

determining whether consolidation should be granted:

The critical question for the district court in the final
analysis was whether the specific risks of prejudice and
possible confusion were overborne by the risk of inconsistent
adjudications of common factual and legal issues, the
burden on parties, witnesses and available judicial resources
posed by multiple lawsuits, the length of time required to
conclude multiple suits as against a single one, and the
relative expense to all concerned of the single-trial, multiple-
trial alternatives.

Arnold v. E. Air Lines, Inc., 681 F.2d 186, 193 (4th Cir. 1982); accord

Cantrell v. GAF Corp., 999 F.2d 1007, 1011 (6th Cir. 1993); Johnson v.

Celotex Corp., 899 F.2d 1281, 1285 (2d Cir. 1990); Hendrix v. Raybestos-

Manhattan, Inc., 776 F.2d 1492, 1495 (11th Cir. 1985). These same

considerations guide the district court’s decision under Iowa Rule of Civil

Procedure 1.913.

The parties cite several Iowa cases involving consolidation of

condemnation appeals. See Van Horn v. Iowa Pub. Serv. Co., 182 N.W.2d

365, 367–68 (Iowa 1970); Iowa Dev. Co. v. Iowa State Highway Comm’n,

252 Iowa 978, 981, 108 N.W.2d 487, 489 (1961); Strange Bros. Hide Co.

v. Iowa State Highway Comm’n, 250 Iowa 450, 452, 93 N.W.2d 99, 100

(1958). Each of these cases, however, merely consolidated proceedings

commenced by a single condemning agency for one project taking
 9

property simultaneously from multiple neighboring landowners.

Consolidation was resisted only in Iowa Development Co., 252 Iowa at

983, 108 N.W.2d at 490–91. We held consolidation was within the

district court’s discretion under the circumstances of that case:

It is clear the two cases involve common questions of
law and fact. As stated, the Murphy tract is bounded by the
development company’s land on three sides. On the fourth
side Delaware Avenue is the west boundary of the Murphy
tract and much of the development company’s land. The
same commissioners assessed the damages to both tracts on
the same day. Much testimony in the district court relates
to both cases. Most of the witnesses on valuations
expressed their opinions as to both tracts. Separate trials
would have resulted in a good deal of repetition of testimony.
Defendant’s resistance to plaintiffs’ motion to
consolidate alleges a consolidation would be prejudicial to
defendant and that different factors affect the value of the
two tracts. The motion was evidently submitted on the
pleadings without any showing of prejudice except such as
might be apparent therefrom. We are not prepared to hold
this was a showing of prejudice which warrants a reversal.

Iowa Dev. Co., 252 Iowa at 983, 108 N.W.2d at 190–91 (emphasis added).

As the foregoing discussion shows, consolidation of condemnation

appeals may well be appropriate for the routine cases involving serial

takings from neighboring properties by a single condemner for the same
project. Here, we are faced with quite different circumstances: two

condemning authorities taking different interests from the landowner for

different projects valued by separate compensation commissions months

apart. We have not previously adjudicated the propriety of consolidation

in this unique situation. We must take a closer look at the particular

issues presented here to decide whether consolidation of Johnson Farms’

appeals fell within the district court’s discretion.

B. Factual and Legal Questions Raised in Condemnation

Appeals. A condemnation appeal is an appeal to the district court of the
 10

six-member compensation commission’s damage assessment contained

in its appraisement report. Iowa Code § 6B.18 (2009). Any interested

party may appeal the commission’s assessment. Id. The sole issue in a

condemnation appeal is damages. Id. § 6B.23 (“On the trial of the

appeal, no judgment shall be rendered except for costs and allocation of

interest earned pursuant to section 6B.25, but the amount of damages

shall be ascertained and entered of record.”).

When the condemner seeks a partial taking of a parcel, as here,

the jury calculates damages by using a before-and-after formula. Jones

v. Iowa State Highway Comm’n, 185 N.W.2d 746, 750 (Iowa 1971). The

before-and-after formula requires the jury to ascertain the difference in

the fair market value of the entire land parcel immediately before and

immediately after the taking, without concern for any benefit caused by

the public condemnation project. Id. The jury determines damages as of

the day the compensation commission viewed the land. Heldenbrand v.

Exec. Council, 218 N.W.2d 628, 634 (Iowa 1974).

C. The District Court Erred By Consolidating the

Condemnation Appeals. A threshold requirement for consolidation is

the existence of a common question of law or fact. Williams, 201 N.W.2d

at 464; accord Iowa R. Civ. P. 1.913. If that requirement is satisfied, the

court must determine whether the benefits of consolidation are

outweighed by the risk of prejudice and confusion. We address these

factors in turn.

1. Common questions of law or fact. Johnson Farms asserts the

appeals present common questions of law and fact because “the same

Iowa substantive law regarding condemnation will apply to both cases”

and the appeals involve “similar parties, the same parcel of land, and

likely the same fact and expert witnesses.” The existence of common
 11

substantive law alone, however, does not justify consolidation. See, e.g.,

Comeaux v. Mackwani, 124 F. App’x 909, 911 (5th Cir. 2005) (finding no

common question of fact or law under Federal Rule of Civil Procedure

42(a) merely because the plaintiff alleged Eighth Amendment violations

in two otherwise unrelated civil rights claims). In other words, two

factually unrelated tort actions are not ripe for consolidation simply

because the same substantive law applies to each. Id. Innumerable

unrelated cases could be consolidated if all that was required is the

application of the same substantive law. The ultimate inquiry is not

whether the same substantive law applies, but whether the separate

actions require determinations of common questions of law or fact.

The fact both appeals involve takings from the same parent tract is

not determinative. Each trial turns on a different valuation issue. PCAA

condemned 4.17 acres in fee simple from Johnson Farms’ 65.93-acre

parcel. WRA condemned a .92-acre permanent easement and a 9.43-

acre temporary construction easement from Johnson Farms’ remaining

61.76-acre parcel. The before-and-after calculation is different in each

appeal. The PCAA jury must determine the value of the 65.93-acre

parcel before and after its 4.17-acre taking as of March 24. WRA did not

even file its condemnation petition until nearly three months later.

Accordingly, the WRA taking is not relevant to the PCAA damages

calculation. See Heldenbrand, 218 N.W.2d at 634 (Iowa 1974) (holding

damages are determined as of the day compensation commission

appraised the property). By contrast, the WRA jury must determine the

value of the 61.76-acre parcel before and after the WRA easements are

imposed as of August 2 (the date the compensation commission viewed

the property). Thus, the ultimate issue differs in each case.
 12

We are not persuaded by Johnson Farms’ characterization that the

appeals involve condemnations by “similar parties.” If “[a]ctions

involving the same parties are apt candidates for consolidation,” then it

follows that actions involving different parties are less likely to present

common questions. 9A Charles Alan Wright, et al., Federal Practice and

Procedure § 2384, at 52 (3d ed. 2008). WRA and PCAA are “similar” only

in that each has condemnation authority. The entities are distinct in

operation, funding, and purpose. PCAA is organized under Iowa Code

chapter 28E, owns and operates the Ankeny Regional Airport, and

receives project funding through the Federal Aviation Authority. WRA is

organized under Iowa Code chapters 28E and 28F, it administers

regional collection and treatment of sewage, and its board consists of

representatives of seventeen Des Moines area communities. The record

contains no evidence these authorities acted as each other’s agent or

colluded to lower damage awards to Johnson Farms.

Johnson Farms contends consolidation is needed to protect

against inconsistent jury awards on the common question of the value of

the parent tract. Specifically, Johnson Farms fears separate juries will

find a high “after” value to its land on March 24 and a low “before” value

to the same land on August 2, thereby reducing its compensation for

both takings. Johnson Farms’ concern is speculative—indeed, it could

benefit from inconsistent verdicts. Separate juries may find a low “after”

value on March 24 and a high “before” value on August 2, thereby

increasing the combined compensation awarded to Johnson Farms.

Separate juries could well find the same interim value for the parent

tract based on the testimony of Johnson Farms’ expert. On the other

hand, the City of Ankeny’s rapid growth or evidence of other intervening

factors may justify different valuations of the parent track four months
 13

apart. The concern over the risk of inconsistent verdicts is less

compelling here because the juries are deciding different ultimate issues.

We conclude the potential commonality in the questions of fact (the

value of the parent tract between the two takings) is insufficient to

support consolidation in light of the risk of prejudice and confusion,

particularly when the benefits of consolidation are slight.

2. The benefits of consolidation are not great. Consolidation will

not significantly promote judicial economy in this litigation. At oral

argument, counsel for Johnson Farms indicated each condemnation

appeal is likely to require a two- or three-day trial. A consolidated trial

would presumably run longer, perhaps three or four days, saving the

court and Johnson Farms at most a day or two. Yet PCAA and WRA

each would face a longer consolidated trial in place of a shorter separate

trial. The downside for Johnson Farms—more total days in court—is

ameliorated by its ability to recover its costs and attorney fees if its

appeals are successful. Iowa Code § 6B.33. While the trials will include

some overlapping evidence such as testimony of the same expert for

Johnson Farms, there also will be significant independent evidence.

PCAA and WRA will present separate expert testimony specific to their

respective takings. The benefit of the time saved by a combined trial is

offset by the increased complexity and risk of error requiring retrial.

3. Risk of prejudice. Johnson Farms argued that PCAA and WRA’s

multiple takings of adjacent land within a short period of time has a

combined effect of reducing the value of its remaining parcel. The

condemning authorities respond that the combined-effects theory

distorts the proper before-and-after damages calculation. See Jones, 185

N.W.2d at 750.
 14

PCAA argues consolidation will force the jury to hear evidence

irrelevant to its case concerning the value of Johnson Farms’ property

after March 24. We agree. See Heldenbrand, 218 N.W.2d at 634 (Iowa

1974) (holding damages are determined as of the day compensation

commission appraised the property). PCAA questions whether a jury

instruction or admonition can cure this problem. At the very least, PCAA

contends such a jury instruction or admonition will confuse the jury.

WRA in turn claims consolidation will require the jury to hear

inadmissible comparable-sale evidence. Our precedent does not allow a

party to introduce evidence of the price a condemner paid to another

condemnee for the same project to establish damages in a condemnation

appeal. Jones v. Iowa State Highway Comm’n, 259 Iowa 616, 619, 144

N.W.2d 277, 279 (1966); Wilson v. Fleming, 239 Iowa 718, 728, 31

N.W.2d 393, 398 (1948). This is because a condemnation award is not

an arms-length transaction negotiated in the relevant market. Jones,

259 Iowa at 619, 144 N.W.2d at 279. WRA points out that in a

consolidated trial the jury will hear evidence and make factual

determinations to resolve the PCAA appeal. This creates a risk the jury

will improperly use its PCAA award as a comparable to value the

remaining tract before and after WRA’s easements are taken.

We disagree with the district court’s conclusion that these

concerns can be effectively answered through admonitions or

instructions to the jury. We recently recognized a jury may have

difficulty faithfully applying instructions that require it to use evidence

for some purposes and ignore it for others. See State v. Redmond, 803

N.W.2d 112, 124 (Iowa 2011) (cautioning a jury may have difficulty

compartmentalizing prior bad-act evidence as going only toward the

witness’s testimonial credibility). If the condemnation appeals are tried
 15

separately, those difficulties are avoided. We conclude the district court

misapplied the law by concluding these actions could be consolidated

without prejudice to WRA and PCAA. This erroneous application of law

constitutes an abuse of discretion. Graber, 616 N.W.2d at 638.

No party cited any case from any jurisdiction consolidating

condemnation actions commenced by different condemning authorities

for different projects and different types of takings months apart in which

the consolidation was resisted. 5 Our own research found no such cases.

A leading treatise cautions against consolidating condemnation appeals

when damages arise from separate takings: “As a general rule, all

persons whose property is taken or injured may be joined in one

proceeding. Where, however, the damages arise from separate takings,

or from injuries which are not part of one project, such joinder is

improper.” 6 Julius L. Sackman, Nichols on Eminent Domain § 24.09[1],

at 24–103 to 24–107 (3d ed. 2008). We see no persuasive policy reason

in this case to become the first appellate court to affirm an order

granting the landowner’s motion to consolidate over the objection of

separate condemning authorities taking different property interests from

the same parent tract for separate projects months apart.

For these reasons, we hold the district court abused its discretion

by consolidating the two condemnation appeals.

5At oral argument, Johnson Farms cited to Floyd County v. Clements, 150
S.W.2d 447 (Tex. Civ. App. 1941), as an example of a court that consolidated
condemnation proceedings commenced by separate condemners. Consolidation was
not contested on appeal, however, and the appellant’s principal complaint concerned
whether the jury was improperly instructed to permit the appellee a double recovery.
Clements, 150 S.W.2d at 449.
 16

IV. Disposition.

We reverse the district court’s order consolidating the PCAA and

WRA condemnation appeals, and we remand the case for separate

proceedings.

REVERSED AND REMANDED.