IN THE COURT OF APPEALS OF IOWA
No. 20-0529
Filed June 16, 2021
DAVID WYATT and ROBERT SWAN,
Plaintiffs-Appellants,
vs.
CLAY COUNTY BOARD OF SUPERVISORS and CLAY COUNTY DRAINAGE
DISTRICT NO. 37,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Clay County, David A. Lester, Judge.
Landowners appeal the summary judgment ruling dismissing their petition
to reverse the Clay County Board of Supervisors’ action to improve the drainage
district. AFFIRMED IN PART AND REVERSED IN PART.
David R. Johnson of Brinton, Bordwell & Johnson, Clarion, for appellants.
Robert W. Goodwin of Goodwin Law Office, P.C., Ames, for appellees.
Considered by Bower, C.J., and Vaitheswaran and Greer, JJ.
2
GREER, Judge.
This case falls into the category of be careful what you ask for. To resolve
water drainage issues in Clay County Drainage District No. 37 (DD37), landowners
David Wyatt and Robert Swan (Landowners) asked for an investigation into the
main tiles serving the district. The Clay County Board of Supervisors (Board), as
the trustees of DD37, sought to address the excess water situation. The Board
investigated the concerns by retaining an engineer, Jonathan Rosengren of Bolton
& Menk, to provide recommendations. Rosengren authored an April 2018 report
and included plans for an improvement project in DD37 with an estimated cost of
$3,678,000. Finding that cost excessive, the landowners attended the hearing on
whether to construct the proposed improvement.1 On January 14, 2019, the Board
held the public hearing to address the recommendations. Objections were filed by
the various property owners in the district, but the Board determined the
remonstrance failed2 and approved the proposed improvements for the region.
After the hearing, the Board scheduled the bid letting for the project for March 26,
2019.
1 All parties concede the project involves an “improvement” and not a “repair.” An
improvement to an existing drainage district is defined as “a project intended to
expand, enlarge, or otherwise increase the capacity of any existing ditch, drain, or
other facility above that for which it was designed.” Iowa Code § 468.126(4)(a)
(2019).
2 A “remonstrance” is “(1) A presentation of reasons for opposition or grievance.
(2) A formal document stating reasons for opposition or grievance. (3) A formal
protest against governmental policy, actions, or officials.” Remonstrance, Black’s
Law Dictionary (11th ed. 2019). Iowa Code chapter 468 governs drainage districts
and improvements. It allows a majority of the landowners to file a written
remonstrance against the proposed improvement. See Iowa Code
§ 468.126(4)(e). This section will be discussed in more depth later in the opinion.
3
These Landowners appealed the decision of the Board to the Clay County
Auditor under Iowa Code chapter 468. The Landowners petitioned the district
court to reverse the action of the Board under Iowa Code section 468.86. In June,
both parties moved for summary judgment. With the theory the remonstrance
failed to meet the statutory requirements, the Board asserted the landowners had
no remedy and the improvements could proceed. The Landowners resisted the
summary judgment motion, asserting the undisputed material facts supported a
finding that its remonstrance count required the Board’s actions involving the
improvements to cease. After a thirty-minute hearing, the district court entered a
ruling dismissing the Landowners’ motion for summary judgment and granting the
Board’s motion for summary judgment. Holding the remonstrance failed, all claims
pled by the Landowners were dismissed. Now, the Landowners appeal the
summary judgment ruling.
A. Factual Background.
After experiencing problems with excess waters in DD37, in September
2014 several landowners petitioned for an investigation into the tile mains serving
the district. They requested an investigation by a qualified engineer who would
“determine the work required to provide sufficient drainage relief for the lands in
the district.” The Board met in their capacity as trustees of DD37 several days
later. The Board voted to accept the petition and to hire Bolton & Menk engineers
to investigate the work required and recommend improvements for the DD37. At
the next drainage meeting in April 2018, the assigned engineer, Rosengren,
provided an extensive report entitled Proposed Main Open Ditch Improvements for
DD37. Although the landowners’ concerns focused on the tile laterals, the report’s
4
scope was limited to the open ditch flooding. The report described the DD37 open
ditch as
an improvement to a portion of Pickerel Run. The district facilities
include approximately 6.8 miles of open ditch and approximately 25
miles of branch tile drains. The watershed of Drainage District No.
37 covers 100.1 square miles (64,050 acres). It includes
approximately 14,549 acres that drain directly into the open ditch
downstream of the Trumbull Lake outlet in Lake, Meadow, and
Freeman Townships in Clay County. The Main Open Ditch also
serves as the outlet for Trumbull Lake that receives waters from Clay,
Dickinson, Palo Alto, and Emmet Counties including Mud Lake,
Round Lake, Twelve Mile Lake and several drainage districts
including DD 95, and DD 89 in Palo Alto County and DD 61. DD 61
includes 30,570 acres in Clay, Dickinson, Emmet, and Palo Alto
Counties. Only 7,983 acres are currently assessed for benefits
derived from the district facilities. This equates to approximately 12%
of the contributing 100.1 square mile watershed that the district
serves. These assessed lands are located in Sections 21-22, 27-29,
and 31-34 of Lake Township (1-97-N, R-35-W); Section 36 of
Meadow Township (T-97-N, R-36-W); and Sections 4-6 and 7 in
Freeman Township (1-96-N, R-35-W). The lands currently listed for
benefit by DD 37 are listed on the current assessment schedule on
file in the Auditor’s Office.
The engineer also summarized the history of DD37, with a focus on
previous construction:
Drainage District No. 37 has not been substantially repaired
since its construction. Below are listed items which have occurred
since the establishment of the district.
1915-10-28 Petition filed for formation of a district.
1916-12-29 Engineer’s Report filed.
1917-7-20 Contract awarded for constructing open ditch to
Northern Construction Co. Leveling the spoil bank was not included
in the bid.
1918-10-14 Contract awarded for construction of tile branches
293 and 298.
1919-4-16 Contract awarded for construction of tile branch 25.
Branch 236 tile sizes changed.
1919-5-1 Contract awarded for construction of all remaining
tile branches within DD 37.
1919-6-24 Open Ditch construction completed.
1963-8-19 Drainage District No. 37 Subdrainage District No. 1
Engineer’s Report filed. Proposed subdrainage district is located in
5
Sections 32 and 33 of Lake Township and Sections 4 and 5 of
Freeman Township. This subdistrict was not established.
1970-5-1 Engineer’s Report was filed for establishment of
Drainage District 37 Subdrainage 2 tile located in Sections 5, 6 and
8 of Freeman Township.
1972 Subdrainage District No. 2 construction completed.
1992-3-29 Clearing of fallen trees and beaver dams in ditch.
1994-5-25 Tile branch 114 repaired due to tree roots plugging
tile.
2014-5-22 Unidentified tile branch repaired due to tree roots
plugging tile.
2014-7-25 Landowner requests to install slide gate on district
tile outletting into ditch.
2016 Tile branch 171 repaired due to tree roots plugging tile.
As a part of the recommendations, Rosengren opined that the Board annex around
56,960 acres of benefited lands not in the drainage district. He also recommended
a reclassification of the existing district to spread more equitably the project costs
among landowners.3 During the August 2018 meeting the Board scheduled a
public hearing for December. The Board convened the public hearing to receive
and consider the improvements to DD37 as proposed by Bolton & Menk. Written
objections to the plan were filed by various landowners. The public hearing was
continued to January 14, 2019.
After explaining the scope of work and benefits at the January public
hearing, the Board addressed the objections to the proposed project. The attorney
for the Board explained that a remonstrance of the improvement required that 50%
of the owners holding 70% of the land object. No one disputes that Iowa Code
section 468.126(4)(e) applies to this situation; it states:
If the estimated cost of the improvement exceeds the adjusted
competitive bid threshold, or the original cost of the district plus the
3Rosengren estimated that 88% of the land draining to the proposed improvement
benefit from the district facilities but pay no assessment for the maintenance costs.
This annexation recommendation was not acted on during the public hearing.
6
cost of subsequent improvements in the district, whichever amount
is greater, a majority of the landowners, owning in the aggregate
more than seventy percent of the total land in the district, may file a
written remonstrance against the proposed improvement, at or
before the date set for hearing on the proposed improvement as
provided in paragraph “c”, with the county auditor, or auditors in case
the district extends into more than one county. If a remonstrance is
filed, the board shall discontinue and dismiss all further proceedings
on the proposed improvements and charge the costs incurred to date
for the proposed improvements to the district. Any interested party
may appeal from such orders in the manner provided in this
subchapter, parts 1 through 5.
(Emphasis added.) The meeting notes reflect 59.77% of owners with 65.00% of
the land opposed the improvements. The minutes of the meeting noted the
remonstrance failed. The Board then voted unanimously to approve the
improvements to the main open ditch as recommended by Bolton & Menk. The
Board directed the engineers to prepare plans and specifications for a bid letting
and scheduled it for March 26, 2019.
In February 2019, three Landowners4 appealed and petitioned for judicial
review of the Board’s actions under Iowa Code section 468.84. The Landowners’
petition asserted they needed more time to respond at the public hearing, and
three of the five Board members suggested they would continue the hearing to
allow more time. The Landowners also alleged violations of their statutory rights
under chapter 468 and the Iowa and United States constitutions. Finally, they
applied for a temporary injunction to avoid irreparable and irreversible injury if the
4 Together with the two landowners who filed this appeal, Allen McGranahan was
listed on the petition as a plaintiff. As it turned out, McGranahan owned property
not in DD37, but in the area proposed for future annexation by the engineers. He
filed a withdrawal from the proceedings before the hearing on the summary
judgment filings.
7
improvement should proceed.5 The Board filed an answer generally denying all
allegations of the landowners and raising the issue of standing as to McGranahan
because he did not reside in DD37. McGranahan ultimately withdrew from the
case.
In June 2019, the Board moved for summary judgment, simply stating that
the remonstrance failed at the public hearing so the landowners had no further
remedies under chapter 486. An affidavit of the county auditor and engineer
Rosengren supported the motion and analyzed the remonstrance calculation. The
Landowners resisted, arguing there were disputed facts because the Board
“committed errors when they tabulated the objections that constituted a
remonstrance.” Connie Swan, a daughter-in-law of landowner Robert Swan,
presented an affidavit disputing the remonstrance count. Citing her background
as a certified public accountant, she challenged the calculations of the Board.
Competing affidavits were filed at various stages of the proceedings, and in
November the Landowners filed a report authored by its expert witness engineer,
Leo Gallentine of Clapsaddle-Garber Associates. That report was not made part
of the summary judgment filings but was referenced by all parties and the court
during these proceedings.
After the hearing on both summary judgment motions was held on January
24, 2020, the district court granted the Board’s motion for summary judgment,
denied the Landowners’ motion, and dismissed their petition. The Landowners
appeal the February 27, 2020 ruling.
5With no objection to the Board’s motion to strike, the district court struck the
petition for temporary injunction.
8
B. Standard of Review and Error Preservation.
“We review rulings that grant summary judgment for correction of errors at
law.” Luana Sav. Bank v. Pro-Build Holdings, Inc., 856 N.W.2d 892, 895 (Iowa
2014). The grant of “[s]ummary judgment is appropriate ‘if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.’” Susie v. Fam.
Health Care of Siouxland, P.L.C., 942 N.W.2d 333, 336 (Iowa 2020) (quoting Iowa
R. Civ. P. 1.981(3)). The court must view the facts in the light most favorable to
the nonmoving party, and on behalf of the nonmoving party consider every
legitimate inference reasonably deduced from the record. See Morris v. Legends
Fieldhouse Bar & Grill, LLC, 958 N.W.2d 817, 821 (Iowa 2021).
When reviewing drainage proceedings of boards of
supervisors we apply three principles: the drainage statutes shall be
liberally construed for the public benefit; strict compliance with
statutory provisions is required to establish a drainage district, while
substantial compliance is sufficient as to repairs or improvements;
and the procedural requirements should not be too technically
construed.
Hicks v. Franklin Cnty. Auditor, 514 N.W.2d 431, 435 (Iowa 1994). When key
questions in this appeal involve statutory construction, our review is for correction
of legal error. Chi. Cent. & Pac. R.R. v. Calhoun Cnty. Bd. of Supervisors, 816
N.W.2d 367, 370 (Iowa 2012).
The Board agrees that error was preserved, yet it raises failure to provide
affidavits on the Landowners’ part to support their arguments outside the
remonstrance issue.
9
C. Analysis.
At the onset, the Landowners challenge the summary dismissal of their
petition as premature. Key to this case, the party moving for entry of summary
judgment bears an initial responsibility to inform the district court of the basis for
its motion and to identify those portions of the record that show a lack of a genuine
issue. See Otterberg v. Farm Bureau Mut. Ins. Co., 696 N.W.2d 24, 27 (Iowa
2005). Once the moving party has met this burden, the nonmoving party must go
beyond the pleadings and by depositions, affidavits, or otherwise, designate
specific facts showing that there is a genuine issue for trial. See id. at 27-28.
The Landowners first note there are material factual disputes about the final
remonstrance calculation that prohibit summary judgment. Even more, the
Landowners contend the district court ignored several other claims that require
judicial review: (1) the Board failed to continue the public hearing to allow objectors
more time to respond and (2) the Board improperly approved the proposed
improvement when it was not “necessary or desirable, and feasible.” We address
these contentions separately.
1. The remonstrance calculation.
The Board’s motion for summary judgment directed the district court to
dismiss all claims pled by the Landowners because the remonstrance failed and
the Board should be free to move forward with the DD37 improvement. The
Landowners resisted the summary judgment motion addressing the remonstrance
calculation, but they also reminded the district court about other issues they raised
requiring judicial review. Yet the Landowners filed a summary judgment motion
asserting the undisputed facts supported the remonstrance and the Board should
10
stop progress on the improvements. Both parties represented in their motions for
summary judgment that the undisputed facts warranted a summary judgment for
that respective party. To put it more simply, the Board said the remonstrance failed
to meet the 70% requirement, while the Landowners said the votes exceeded the
statutory requirement.6 At the summary judgment hearing, noting both parties
disputed the calculations, the Landowners conceded that “[Landowners] honestly
cannot make a good faith argument our motion for summary judgment should be
granted” but that neither could the Board. To that end, each party filed pages of
documents listing the names of owners in the DD37 and calculating the acres of
those owners to account for their ownership interest.
All parties concede that 59.77% of the required majority of landowners
objected to the improvements at the public hearing, so that requirement was
satisfied. See Iowa Code § 468.126(4)(e). The dispute is if that majority of
landowners own “in the aggregate more than seventy percent of the total land in
the district.” Id. (emphasis added). After the public hearing in January 2019, the
Board concluded: “Objection results in 59.77% of owners of 65.00% of the land
oppose an improvement. A remonstrance of the improvement requires 50% of the
owners of 70% of the land therefore a remonstrance fails.” To show how the Board
miscalculated the percentages, the Landowners submitted an affidavit from
Connie Swan describing several discrepancies. The Board acknowledged
mistakes and recalculated the percentage of ownership opposing the
6The Landowners’ motion for summary judgment settled on 70.5455656% vote,
while the Board argued the final calculation was 68.56%.
11
improvement. Now we view the evidence to see if any disputed factual issues
preclude summary judgment on the remonstrance count.
To determine the landowners in the drainage district, the Board looks to the
transfer books in the county auditor’s office.7 The Board argues it is undisputed
that the calculation, after considering all of the corrections urged by the
Landowners, equates to 68.56% of the total land in the district. Here, after
correcting errors first made in the count, Rosengren and the county auditor
calculated from the transfer books “5,769.946 acres objecting and 8,416.103797
acres in the drainage district, and so that’s 68.56 percent objecting.” The district
court relied on the Board’s exhibit setting out the corrections and resulting
calculations.
7Under Iowa Code section 468.14:
When any plan and report of the engineer has been approved
by the board, such approval shall be entered of record in its
proceedings as a tentative plan only for the establishment of said
improvement. Thereupon it shall enter an order fixing a date for the
hearing upon the petition not less than forty days from the date of
the order of approval, and directing the auditor immediately to cause
notice to be given to the owner of each tract of land or lot within the
proposed levee or drainage district as shown by the transfer books
of the auditor’s office, including railway companies having right-of-
way in the proposed district and to all lienholders or encumbrancers
of any land within the proposed district without naming them, and
also to all other persons whom it may concern, and without naming
individuals all actual occupants of the land in the proposed district,
of the pendency and prayer of the said petition, the favorable report
thereon by the engineer, and that such report may be amended
before final action, the approval thereof by the board as a tentative
plan, and the day and the hour set for hearing on said petition and
report, and that all claims for damages except claims for land
required for right-of-way, and all objections to the establishment of
said district for any reason must be made in writing and filed in the
office of the auditor at or before the time set for such hearing.
(Emphasis added.)
12
Based on the dueling motions for summary judgment, affidavits, and documents,
the district court summarized the information to reach a decision:
As a response to Connie Swan’s calculation, the Board
adjusted their calculation and came to a final remonstrance
percentage of 68.56%. This final percentage does not include the
annexed lands nor the rights of way. As set forth above, this Court
finds the annexed landowners cannot remonstrate—therefore
confirming the Board’s exclusion of these lands from the calculation.
Section 468.126 clearly affords voting to only owners of land, not
owners of easement, therefore justifying the exclusion of the rights
of way.
Reviewing the spreadsheet at the end of Toay and
Rosegren’s July 2, 2019 affidavit, the Court notes the parties had
same total acres (denominator) of 8416.1038 through the first eight
rows. In the same rows, the parties diverge on the objecting acres
(numerator) only on Marjorie Batcheler’s 53.1060 acres: the Board
did not count these in; the Plaintiffs count these in. From row 9 till
[row] 13, parties diverge on adding or subtracting acres from the
denominator. There should be no annexed lands added. The Board
did not remove Tract 105 because it was counted in correctly after
using the correct parcel number. U.S. Fish & Wildlife should remain
in the total due to their ownership and assessment. DD37’s right-of-
way cannot be added because DD37 is not ownership of these acres.
In the end, the Board’s row 11 figures of total and objecting
lands are correctly computed—which result in a remonstrance of
68.56%. Even adding Marjorie Batcheler’s 53.1060 acres to the
13
objecting land, which the Court finds should not be included for the
reasons stated in the Board’s affidavit, the final percentage ends up
at 69.19%: (5771.2461+53.1060)/8417.4038. Therefore, the
remonstrance fails because it is below the statutorily required 70%.
To the extent that Point 8 in Gallentine Report lists discrepancies
between transfer books and county recorder’s office, the Plaintiffs
cite to no authority why these discrepancies should overcome
statutory requirement of basing remonstrance on transfer books.
This Court does not see reason to deviate from the statute.
(Citation omitted.) Because the district court addressed the Gallentine expert
report, we discuss its impact to this remonstrance issue.8 After the summary
judgment motions and supporting documents were filed, in November 2019 the
Landowners served Gallentine’s expert witness report. That report included an
analysis about the remonstrance count. The district court found it could not
consider the report as a matter of law because the Landowners never moved to
supplement the summary judgment pleadings. Still, the Board applied to reset the
hearing on the motions and included many references to Gallentine’s conclusions.
Attached to that application was a new affidavit from the county auditor and
Rosengren with updated corrections to the calculations in response to Gallentine’s
opinions. Likewise, the Board referenced the Gallentine report in the oral
argument and urged that even with his conclusions, the computation would be
66.291%. And in the ruling the district court detailed Gallentine’s arguments,
discussing each point. In our review, we find the district court and all parties
included the Gallentine report as part of the record, so we consider it as well.
8 The Landowners argued that the Gallentine report identified seven reasons why
the Board’s remonstrance calculation was incorrect, but most related to those
Connie Swan also raised.
14
Having reviewed the facts associated with the remonstrance calculation, we
agree with the district court’s confirmation that the remonstrance correct
calculation was 68.56%. After addressing the corrections raised by the
Landowners and applying the correct standards related to those corrections, we
find no dispute in the math. The final calculations did not meet the 70% statutory
requirement. Thus, the remonstrance failed and summary judgment on this issue
was proper.
2. The other claims.
Finally, to preserve part of their case, the Landowners dispute the summary
judgment ruling dismissing all claims made by them in the petition. Even if the
remonstrance failed, the Landowners assert the claims related to the Board’s
behavior remain viable for judicial review. Our legislature vested the Board with
authority to “order done whatever is necessary to restore or maintain a drainage
or levee improvement in its original efficiency or capacity,” including the “repair [of]
any damaged structures . . . and whatever else may be needed to restore or
maintain such efficiency or capacity or to prolong its useful life.” Iowa Code
§ 468.126(1)(a); see also Bd. of Trs. of Farmers Drainage Dist. v. Iowa Nat. Res.
Council, 78 N.W.2d 798, 803 (Iowa 1956) (stating analogous provision in prior
statute was “a comprehensive provision imposing the mandatory duty on trustees
of a drainage district to keep its drains in repair and authorizing [trustees] to ‘order
done whatever is necessary to restore or maintain’ the ‘improvement in its original
efficiency or capacity’” (citation omitted)).
But as noted, landowners can object to the Board’s actions. See Allen v.
Webster Cnty. Bd. of Supervisors, No. 07-0876, 2008 WL 782811, at *4 (Iowa Ct.
15
App. Mar. 26, 2008). After the Board considers the landowner feedback on a
proposed improvement, the Board “shall order that the improvement it deems
necessary or desirable and feasible be made and shall also determine whether
there should be a reclassification of benefits for the cost of the improvement.” Iowa
Code § 468.126(4)(d) (emphasis added). Yet here, the Landowners assert the
district court summarily dismissed this claim in their petition even though the Board
made no motion for summary judgment addressing the issue.
True, when the Board moved for summary judgment, it focused only on the
remonstrance issue yet urged the Landowners’ petition should be dismissed in its
entirety. As a part of its resistance to the summary judgment motion, the
Landowners reminded the district court of the other issues raised in the petition not
addressed in the Board’s motion. To respond, the Board argued the Landowners
presented no affidavit supporting the other issues pled. And the Board continued
[Landowners] have not alleged, nor provided any affidavits or proof
that the [Board’s] actions amounted to fraud, were in excess of
jurisdiction, or amounted to an abuse of discretion. Therefore, the
[Board] as a matter of law [is] entitled to summary judgment in regard
to Division I of [the Landowners’] Petition.
See Johnson v. Monona–Harrison Drainage Dist., 68 N.W.2d 517, 523 (Iowa 1955)
(“Such relief [setting aside the action of the Board] should not be granted unless it
appears the [Board’s] action of approval amounted to fraud, was in excess of
jurisdiction, or that it amounted to an abuse of discretion.” (referencing Iowa Code
chapter 455, now renumbered chapter 468)).
The district court adopted the Board’s arguments made in response to the
Landowners’ resistance. But the Board’s motion for summary judgment only
addressed its theory that the remonstrance failed and did not tackle the other
16
allegations made by the Landowners. While the Board correctly stated the burden
of the Landowners to prove those other claims, the Landowners were not required
to prove those claims in response to a summary judgment motion based on
another theory.
To obtain a grant of summary judgment on some issue in an
action, the moving party must affirmatively establish the existence of
undisputed facts entitling that party to a particular result under
controlling law. . . .
....
. . . When the evidentiary matter tendered in support of the
motion does not affirmatively establish uncontroverted facts that
sustain the moving party’s right to judgment, summary judgment
must be denied even if no opposing evidentiary matter is presented.
Griglione v. Martin, 525 N.W.2d 810, 813 (Iowa 1994), overruled on other grounds
by Winger v. CM Holdings, L.L.C., 881 N.W.2d 443, 446 (Iowa 2016). Failure of
the nonmoving party to properly resist the motion does not relieve the moving party
of its obligation to show the district court there is no genuine issue of material fact
and that it is entitled to a judgment as a matter of law. See Otterberg, 696 N.W.2d
at 27. As to the other claims raised by the Landowners, the Board failed to support
its motion for summary judgment with the requisite undisputed facts. While we do
not comment on the ultimate success of those other claims, we cannot uphold the
summary dismissal of allegations not yet tested. We reverse the district court
summary judgment ruling as to all other claims raised by the Landowners.
D. Conclusion.
We affirm the summary judgment ruling finding the remonstrance failed but
reverse the ruling as to all other claims urged by the Landowners for further
development.
AFFIRMED IN PART AND REVERSED IN PART.