Robert M. JOHNSON, Trustee of the Robert M. Johnson Revocable Living Trust, and Kathryn M. Zimmer, Appellees, v. DES MOINES METROPOLITAN WASTEWATER RECLAMATION AUTHORITY, Acting by and Through its Operating Contractor, the City of Des Moines, Appellant. Robert M. Johnson, Trustee of the Robert M. Johnson Revocable Living Trust, Kathryn M. Zimmer, and RMJ Farms, LLC, Appellees, v. Polk County Aviation Authority, Appellant.
No. 11-0444
Supreme Court of Iowa
May 18, 2012
The commission identified the proper aggravating and mitigating factors. Kallsen was disciplined in 2003 for neglect, and his license was reinstated only one year prior to this incident. Boles, 808 N.W.2d at 442 (“A pattern of misconduct is an aggravating factor.“). His failure to cooperate with the formal disciplinary process is an aggravating factor. Hearity, 812 N.W.2d at 622 (“[F]ailure to cooperate is a significant aggravating factor.“). His fee refund is a mitigating factor. See Boles, 808 N.W.2d at 442 (refund is mitigating factor in determining sanction for unethical accounting and billing practice). Our cases also hold Kallsen‘s voluntary decision to cease the practice of law is a mitigating factor. Dunahoo, 799 N.W.2d at 535. However, we give this factor less weight here because Kallsen voluntarily ceased practice for five years after his 2003 suspension only to later seek reinstatement and again violate our ethical rules.
The attorney-client relationship requires lawyers to honor and zealously advocate their clients’ decisions concerning fundamental case decisions. Attorney honesty is рaramount to the proper functioning of our adversary system. Kallsen‘s flagrant disregard of his client‘s plea decision and his active deceit to the district court undermined two of the most fundamental pillars of our adversary system. After careful consideration of the record, precedent, aggravating and mitigating factors, and the two-year suspension recommended by the Board and commission, we conclude a one-year suspension is appropriate.
V. Conclusion.
We suspend Kallsen‘s license to practice law in this state with no possibility of reinstatement for one year from the date of this opinion. The suspension applies to all facets of the practice of law, as provided by
LICENSE SUSPENDED.
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.
Bernard L. Spaeth, Jr., Kevin M. Reynolds, and Kimberly S. Bartosh of Whitfield & Eddy, P.L.C., Des Moines, for appellees.
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
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 аnd 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 authoritiеs 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 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 acreаge 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 Pollu
Johnson Farms moved to consolidate the two appeals into a single district court proceeding under
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.” Furthеr, 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.
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.
Unless a party shows the party will be prejudiced thereby the court may consolidate seрarate 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.
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 questiоns of law or fact” and whether any party can “show[]” prejudice. Williams, 201 N.W.2d at 464 (quoting
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 whеther a claim of prejudice is well founded. When the rule 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 аnd 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);
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 commenсed by a single condemning agency for one project taking 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. Thе 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 490-91 (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 circumstanсes: 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 condеmnation appeal is an appeal to the district court of the six-member compensation commission‘s damage assessment contained in its appraisement report.
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
C. The District Court Erred By Consolidating the Condemnаtion 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
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 substantive law alone, however, does not justify consolidation. See, e.g., Comeaux v. Mackwani, 124 Fed.Appx. 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 apрlies 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. Seе Heldenbrand, 218 N.W.2d at 634 (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.
We are not persuaded by Johnson Farms’ characterization that the appeals involve condemnations by “similar parties.” If “[a]ctions involving thе 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
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 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.
3. Risk of prejudice. Johnson Fаrms 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.
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 (holding damages are detеrmined 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.
We disagree with the district court‘s conclusion that these сoncerns 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 separately, those difficulties are avoided. We conclude the district court misappliеd 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 condеmnation 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 thе 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.
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.
WATERMAN
JUSTICE
Notes
- Consolidation. If aсtions before the court involve a common question of law or fact, the court may:
- join for hearing or trial any or all matters at issue in the actions;
- consolidate the actions; or
- issue any other orders to avoid unnecessary cost or delay.