Preview:

IN THE COURT OF APPEALS OF IOWA No. 2-024 / 11-0690 Filed April 25, 2012

IN THE MATTER OF THE ESTATE OF LEWIS R. MARTIN, Deceased. NORMA DINNES, Claimant-Appellant, vs. ROBERT G. MARTIN, Executor of the ESTATE of LEWIS R. MARTIN, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Marshall County, Michael J. Moon and Carl D. Baker, Judges.

Norma Dinnes appeals the probate court's denial of her bailment claim against the estate of Lewis R. Martin. DIRECTIONS. AFFIRMED AND REMANDED WITH

Harry L. Haywood III of Haywood Law Office, Eldora, for appellant. Andrew B. Howie of Hudson, Mallaney, Shindler & Anderson, P.C., West Des Moines, and Kirby Schmidt, Grundy Center, for appellee.

Heard by Vaitheswaran, P.J., and Doyle and Tabor, JJ.

2 DOYLE, J. Norma Dinnes appeals the probate court's denial of her bailment claim against the estate of Lewis R. Martin. She contends her property stored by the decedent was damaged and lost due to the decedent's negligence . She

requested return of her damaged property and monetary damages for repairs and replacement of her lost property. Upon our review, we affirm and remand with directions. I. Background Facts and Proceedings. Norma Dinnes's grandmother passed away in 1975. Thereafter, Norma inherited several pieces of her grandmother's furniture, as well as a china doll and a sewing machine. At the time of her grandmother's death, Norma lived out of state and did not have a place to store her inherited property. Lewis and Virginia Martin, Norma's uncle and his wife, owned a farm in Marshall County, Iowa. Virginia enjoyed antiques, and she refinished furniture. The Martins' farm had outbuildings, including one referred to as "the cottage" and one referred to as "the milking parlor." Virginia stored her own antiques and furniture in the cottage. The Martins had a close relationship with Norma, and they volunteered to store her inherited property in the cottage. Norma was aware Virginia stored her antiques there and that their property would be commingled. Norma accepted their offer, and Norma's father, John Dinnes, moved the property into the cottage. The Martins never charged Norma for storing her property nor did they use her property.

3 Norma visited the Martins over the years, and she checked on her property when she was there. Norma admitted the last time she saw her

property at the Martins' farm was in approximately 2005, thirty years after the Martins volunteered to store the property. She admitted the cottage was full of furniture and she could not see all of her property, but the items she did see were in satisfactory condition. She believed her property was being cared for in the same manner as Virginia's property. Virginia died in January 2006. Norma did not file a claim in Virginia's estate, nor did she request her property be returned to her at that time. Lewis died three years later in August 2009. After filing a petition for probate of Lewis's will in September 2009, the Martins' son, Robert Martin, was named the executor of Lewis's estate as proposed in Lewis's will. In January 2010, Norma filed a claim against the estate for $18,000 "based upon property held by executor of estate ." The estate denied her claim stating, among other things: "The items stored by [Lewis] were placed in a small cottage . . . and much of that property has been damaged and destroyed by rainfall and by wild animals during the past thirty years." The estate then filed a motion to dismiss Norma's claim. The parties reached an agreement to allow Norma to inspect property in the estate to determine if any of the property belonged to her, and the trial scheduled for May 2010 was cancelled. However, the parties were unable to reach an agreement thereafter. Norma resisted the estate's motion to dismiss and affirmatively stated the Martins "entered into a voluntary agreement in 1975 to allow storage of personal property belonging to [Norma] creating a legal

4 bailment between family . . . without monetary consideration." Norma asserted Lewis refused financial compensation from her, "indicating his appreciation for her visits and medical advice." Trial began in August 2010 before district court judge Michael Moon. Robert testified his mother and his sister had kept property in the cottage and their property was intermingled with Norma's property. He further testified that the cottage's condition had deteriorated over the years; part of the roof had collapsed, and there were holes in the walls that allowed wildlife in. Robert

testified that much of the property in the cottage was covered in raccoon feces and damaged from wildlife and water. After Lewis's death, Robert moved the salvageable items in the cottage to the milking parlor and disposed of the rest. Robert testified Norma spent little time with Lewis after Virginia died. He testified Lewis was concerned about Norma's items deteriorating, but Robert himself did not contact Norma. Although he identified two cabinets and a dresser that belonged to Norma, due to the commingling of the property, he did not know what remaining property belonged to Norma or his mother. For instance, Norma asserted that four hardback chairs she inherited were placed in storage at the Martins' farm. Robert found thirty-five different hardback chairs. Norma asserted a claim to a sewing machine; Robert found three sewing machines in the milking parlor. Robert testified he and his siblings did not trust Norma and believed she would claim property that was not hers and deprive the estate of assets. Norma conversely testified that she kept in contact with the Martins and regularly asked about her property. She stated she was told by Virginia and Martin her property was fine, she did not need to compensate them, and she did

5 not need to pick the items up. She testified Lewis had told her the cottage's roof was leaking and he and his grandchildren had moved her property to the milking parlor. She testified she volunteered to pay for the roof repairs, but Lewis

refused. She testified that had she known of the deteriorating and damaged condition of her property, she would have moved her items from the Martins' farm. John, Norma's father, testified that Norma inherited property from his mother, and he and his brother Fred placed the items in the cottage. He testified he would know which items were his mother's if he saw them again. The court then requested John to go out to the Martins' farm and look over the antiques to determine what had belonged to his mother. On the record, the court stated: If John could . . . go through those items and then these other three, the dresser and the two cabinets, we're going to get those back . . . . [W]e have to get that stuff picked up and moved out of there together with whatever John identifies that's [Norma's]." Robert agreed that was fair, and Judge Moon entered an order for John to go out the farm and identify the items. The judge encouraged the parties to cooperate in allowing Norma to remove her property from the Martins' farm so the issues could be narrowed. The parties were to report back to the court. John identified two more pieces of furniture as belonging to his mother, a bed frame with headboard and a dining table. Other items listed by Norma that Robert thought could possibly be in the milking parlor, such as the sewing machine and hardwood chairs, were determined by John not to belong to his mother. The remaining items claimed by Norma, such as the china doll, were not found at the Martins' farm.

6 The parties attempted to make arrangements for Norma to pick up her property, but ultimately could not reach an agreement. In September 2010,

Norma asked for further proceedings to set a time for delivery of the property and for damages for the cost of repairs and replacement of the damaged property. Additionally, Norma filed a motion to amend the amount of her claim from $18,000 to $27,255. Trial resumed in February 2011 before district court judge Carl Baker. The transcript from the first day of trial in August was admitted into evidence. The parties again testified similarly as before. Norma had new estimates on the value of her property from visiting antique shops and reviewing antique books. The court denied Norma's claim. Noting the parties were in agreement that a bailment relationship had been created, the court found Lewis was a gratuitous bailee and the damage and loss of Norma's property "was not due to a violation of the standard of care to be met by [Lewis]." Robert was not ordered to return the five items identified as Norma's property at the Martins' farm. Thereafter, Norma filed a motion to amend or enlarge the court's findings and conclusions. Among other things, she asserted the court applied the wrong standard of care under the Iowa Supreme Court's ruling in Thompson v. Kaczinski, 774 N.W.2d 829 (Iowa 2009) (adopting certain sections of the Restatement (Third) of Torts). She requested her property be returned and the estate be ordered to pay her $27,255 for the diminished value of the five recovered items and $17,422 for the missing items. The estate resisted, and the district court denied her motion.

7 Norma now appeals.1 II. Scope and Standards of Review. Our review of law actions is for correction of errors at law. Iowa R. App. P. 6.907. The findings of fact in an action tried to the court have the effect of a special verdict and are binding on us if supported by substantial evidence. Id.; Iowa Beta Chapter of Phi Delta Theta Fraternity v. State , 763 N.W.2d 250, 257 (Iowa 2009). "Evidence is not insubstantial merely because we may draw

different conclusions from it; the ultimate question is whether it supports the finding actually made, not whether the evidence would support a different finding." Brokaw v. Winfield-Mt. Union Cmty. Sch. Dist., 788 N.W.2d 386, 393 (Iowa 2010) (citation omitted). We view the evidence in the light most favorable to supporting the judgment and liberally construe the court's findings to uphold, rather than defeat, the court's decision. State v. Dohlman, 725 N.W.2d 428, 430 (Iowa 2006). However, the district court's conclusions of law and its application of the legal conclusions to the facts are not binding on appeal. Raper v. State, 688 N.W.2d 29, 36 (Iowa 2004). III. Discussion. On appeal, Norma contends the district court erred in his application of law to the facts. Specifically, she asserts the adoption of the Restatement (Third) of Torts in Thompson v. Kaczinski, changed the degree of care required in all circumstances, and "replaced the law" relied upon by the district court. She also contends the court erred "by not finding Robert liable under Iowa Code [section]
We note an all too frequently observed violation of the rules of appellate procedure: failure to place the name of each witness at the top of each appendix page where the witness's testimony appears. See Iowa R. App. P. 6.905(7)(c).
1

8 633.158 [(2011)] or constructive bailment law." We address her arguments in turn. A. Duty of Care. Norma first asserts the differing standards and degrees of care in various bailment relationships have been thrown out the window by our supreme court's holding in Thompson.2 In Thompson, [the court] adopted the framework proposed in the Restatement (Third) of Torts for the determination of the existence of a general duty to exercise reasonable care. Under this framework, the foreseeability of physical injury to a third party is not considered in determining whether an actor owes a general duty to exercise reasonable care. Van Fossen v. MidAmerican Energy Co., 777 N.W.2d 689, 696 (Iowa 2009) (internal citations omitted). However, the court has recognized Thompson does not provide the framework for analysis of duty in all circumstances, such as cases based upon agency principles and involving economic loss. See Langwith v. Am. Nat'l Gen. Ins. Co., 793 N.W.2d 215, 221 n.3 (Iowa 2010), overruled on other grounds by Iowa Code

Download IN THE MATTER OF THE ESTATE OF LEWIS R. MARTIN, Deceased. NORMA DINNES, Claimant

Iowa Law