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IN THE COURT OF APPEALS OF IOWA No. 7-277 / 06-1766 Filed June 13, 2007

AGNES M. THACKER and JOHN M. THACKER, Plaintiffs-Appellants, vs. ROBERT L. THACKER and FRANCES M. THACKER, BETTY WATERHOUSE, JOHN GREEN and JOAN GREEN GOLDAPP, EDNA ROBERTS, RICK THACKER, BRIAN THACKER, LAURA SAMUELS, a/k/a LAURA SAMMUELS and WILLIAM SAMUELS, GEORGE THACKER, DOUG THACKER, TIM THACKER and FARM CREDIT SERVICES OF AMERICA (FLCA), Defendants-Appellees. ________________________________________________________________

Appeal from the Iowa District Court for Muscatine County, James E. Kelley, Judge.

The plaintiffs appeal the district court's order granting summary judgment in favor of the defendants Robert and Frances Thacker and dismissing the claims against these defendants. AFFIRMED.

Timothy L. Baumann, Christopher L. Surls, and William B. Norton of Wm. B. Norton Law Firm, Lowden, for appellants Agnes Thacker and John Thacker. Kenza B. Nelson and Eric M. Knoernschild of Stanley, Lande & Hunter, P.C., Muscatine, for appellees Robert and Frances Thacker.

2 Thomas H. Burke of Whitfield & Eddy, P.L.C., Des Moines, for appellee Farm Credit Services of America (FLCA). Joan Goldapp, Milwaukee, Wisconsin, pro se. Edna Roberts, Mt. Pleasant, pro se. Laura Samuels, Muscatine, pro se. Rick Thacker, Oakville, pro se. Brian Thacker, Mt. Pleasant, pro se. George Thacker, Keosauqua, pro se. Doug Thacker, Muscatine, pro se. Tim Thacker, Muscatine, pro se. Betty Waterhouse, Mediapolis, pro se.

Heard by Sackett, C.J., and Vogel and Miller, JJ.

3 VOGEL, J. Agnes Thacker and John Thacker, plaintiffs, appeal from the district court's order granting summary judgment to the defendants, Robert and Frances Thacker. Because we agree with the district court that the statute of limitations had run, thereby barring plaintiff's attempt to bring a partition action as to certain farm real estate, we affirm.1 The plaintiffs, Agnes and John Thacker, are brother and sister and coexecutors of their brother, James Thacker's estate. The defendant, Robert

Thacker, is also a brother of the plaintiffs and of the decedent; Frances is Robert's wife. For over thirty years Robert and James were engaged in a farm partnership known as the "Thacker Brothers' Partnership." The brothers

operated informally, without a written partnership agreement, sharing the income and expenses of the partnership on a 50-50 basis. Both brothers worked on the various farms they owned as tenants in common, but James was primarily responsible for keeping the books and handling most business matters. The Altekruse Farm was purchased on an installment contract in February 1972 by James and Robert. On March 7, 1987, the sellers gave a warranty deed to "James A. Thacker and Robert L. Thacker" in full satisfaction of the contract. On March 20, 1987 another warranty deed was executed by James, Robert, and Frances, conveying "an undivided interest in" the Altekruse Farm to "Robert L. Thacker and Frances M. Thacker, husband and wife." In early 1994, James

1

The remaining defendants were named as part of the original petition, seeking to partition other land owned in part by James. As those issues have been resolved, they are not part of this appeal. In addition, we note the plaintiffs brought this action, not as executors of James's estate, but rather in their individual capacity.

4 mentioned to attorney John Hintermeister that he thought there was a mistake in the deed to the Altekruse Farm. Hintermeister, who had drafted the 1987 deed, wrote to Robert and Frances on April 5, 1994, conveying James's concerns. Hintermeister wrote again to Robert and Frances on October 10, 1995, suggesting he meet with James, Robert, and Frances to discuss the concerns. No such meeting ever occurred. Additional correspondence between

Hintermeister and another attorney, James Keele, occurred in 1997; however, once again, no action was taken. After James's death in 2004, the plaintiffs brought suit against Robert and Frances, seeking to partition certain real estate. Part of this property included any alleged interest James held in the Altekruse Farm at his death. Agnes and John claimed the 1987 conveyance to Robert and Frances was a mistake and requested the district court to reform the deed. Robert and Frances moved for summary judgment on several grounds, including the running of the applicable statute of limitations. The district court granted the motion, finding the 1987 warranty deed unambiguous, that it conveyed title to Robert and Frances, and concluding the ten-year statute of limitations had run prior to the filing of the petition. It also rejected the plaintiffs' claims of adverse possession, 2 laches, and estoppel by acquiescence. The plaintiffs appeal. We review summary judgment motions for correction of errors at law. Stevens v. Iowa Newspapers, Inc., 728 N.W.2d 823, 827 (Iowa 2007). Summary judgment is appropriate only when the entire record demonstrates that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id.
2

The plaintiffs do not assert error on appeal as to the adverse possession claim.

5 The plaintiffs contend that the district court erred when it found the statute of limitations period had run and barred their partition action as to the Altekruse Farm. Iowa Code section 614.17A governs plaintiffs' claim and provides among other things that, "an action shall not be maintained . . . in order to recover or establish an interest in or claim to real estate if . . . (a) The action is based upon a claim arising more than ten years earlier or existing for more than ten years." See also Iowa Code

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