95 Broadway, LLC v. Linda Geske

IN THE COURT OF APPEALS OF IOWA

No. 24-0001
Filed October 30, 2024

95 BROADWAY, LLC
Plaintiff-Appellant,

vs.

LINDA GESKE,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Dickinson County, Carl J. Petersen,

Judge.

Property owners appeal the district court’s ruling regarding their alleged

easement rights over adjacent landowner’s property. AFFIRMED.

Dalton J. Kidd of Kidd Law Firm, P.L.L.C., Arnolds Park, and Robert W.

Goodwin of Goodwin Law Office, P.C., Ames, for appellant.

Daniel E. DeKoter, Nathan J. Rockman, and Brandon J. Krikke of DeKoter,

Thole, Dawson, Rockman & Krikke, P.L.C., Sibley, for appellee.

Heard by Schumacher, P.J., Chicchelly, J., and Mullins, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2024).
2

CHICCHELLY, Judge.

95 Broadway, LLC (95 Broadway) appeals the district court’s ruling

regarding their alleged easement rights over Linda Geske’s adjoining property.

Upon our review, we affirm.

I. Background Facts and Proceedings.

95 Broadway is a limited-liability company that purchased 95 West

Broadway Street, Arnolds Park, in 2017. The address was formerly the site of

Ruebin’s Theatre. After an extensive renovation, 95 Broadway opened Nautical

Bar and Grill (Nautical) in its place. In 2019, Nautical underwent a second remodel.

95 Broadway later purchased a neighboring lot and added a restaurant called

Portside. Both lots border the Okoboji Bible Conference grounds to the south.

The southwest corner of 95 Broadway Street borders an adjoining lot that

Geske purchased in 2018. The northern portion of the adjoining property, closest

to Nautical, is a gravel parking lot. Geske owns and operates the restaurant

Smokin’ Jakes south of the parking lot, and lives above the restaurant “[ninety]

percent of the time.” To the north of Geske’s property and to the west of 95

Broadway’s is Captain’s Getaway, who is not a party to this action.

At the heart of this dispute is a side door on the southwest side of Nautical,

which opens onto Geske’s property. Before the Nautical renovations, there were

three access points on the existing building: the southwest door, the front entrance,

and a door directly behind the bar that opened onto Captain’s Getaway property.

While not connected, Nautical and Portside share an interior garage door, and

Portside has a fire exit to the south. As part of its renovations, 95 Broadway
3

removed the door leading to Captain’s Getaway, leaving only the southwest door

and front entrance.1

Historically, the southwest door was used only as a fire exit. Jim Hentges,

the previous owner of Reubin’s Theatre, testified that he added the door soon after

purchasing the property in 2000. Hentges outfitted it with a special alarmed door

with panic hardware but no exterior knob. He testified at trial that he luckily never

had to use it for an emergency. Geske, a frequent patron at Ruebin’s, confirmed

1 During its renovations, 95 Broadway discovered a fourth door that had been fully

enclosed years earlier. It chose not to use the unexpected door as an additional
exit and instead enclosed it again.
4

it was never used and that there was always debris blocking the door from both

the inside and outside.

But when 95 Broadway purchased the property in 2017, things changed. In

its first summer, 95 Broadway underestimated the amount of ice Nautical needed

to operate. “[I]n desperate need of ice,” it added an ice shed on the southside of

the building. While 95 Broadway did not seek a title opinion before purchasing the

property, it relied on the use of the southwest door. 95 Broadway later expanded

the building to the outermost edges of the lot and relocated its electrical panel from

the west side to the southeast corner. It also changed the southwest door itself,

replacing the emergency hardware with a traditional door that could be accessed

without setting off an alarm. Throughout these renovations, Nautical employees

used the southwest door to access both the ice and new panel and walk to a

shared dumpster with Captain’s Getaway. Gregory and Roberta Williams, who

owned the adjoining lot in 2017, testified this became a problem. Nautical

employees and bands performing at the location began parking on their property.

Employees took rest and smoke breaks outside, and trash, “broken glass,” and

cigarette butts littered the area. The Williamses also testified that 95 Broadway

often requested to use the property for various purposes. While they sometimes

allowed access, at other times, they declined. On one occasion, 95 Broadway

asked to bring heavy equipment onto their property to remove a tree stump; when

the Williamses said no, 95 Broadway completed the project anyway, leaving

footprints and tire tracks behind. Geske confirmed this, testifying she could see

the work being done next door in the early morning hours and contacted the

Williamses.
5

By the end of 2017, Roberta “couldn’t deal with everything that was going

on” anymore. 95 Broadway offered to purchase the property, but Roberta

declined. Instead, Roberta called Geske crying and said, “I’ve had it with them.

Will you buy my property?” Geske accepted, planning to expand Smokin’ Jakes.

But the change in ownership did nothing to improve relations between property

owners. Geske had several disputes with 95 Broadway regarding the use of her

property. She testified that she frequently cleaned up after Nautical employees

and consistently reminded trespassers “they can’t be out there.” In 2019, when

Nautical underwent its second renovation, Geske briefly allowed construction

workers to access her property to complete the work. But she testified that with

that small exception, she never allowed anyone to use her property. In fact, she

put up barriers to alleviate the traffic and trash. In 2020, she erected a temporary

fence on her property line that blocked access to the southwest door; Geske

testified that the city threatened to revoke her liquor license if she did not remove

the fence and grant 95 Broadway an easement. Geske alleged that 95 Broadway

removed the fence on its own, so in its place, Geske parked a trailer on the property

line to block access. 95 Broadway contacted police, but the police took no action

because it was not 95 Broadway’s property.

Before starting her proposed construction, Geske completed a

metes-and-bounds survey because she planned “to use the whole entire lot.” The

survey showed no easements. Geske then applied for a building permit, but the

Arnolds Park Board of Adjustment denied it after 95 Broadway claimed it had an
6

existing easement. Geske filed suit, and the district court found Geske’s

application met all zoning requirements and the Board illegally denied her permit. 2

After the court’s decision, in September 2022, Geske erected a cement wall

on the northeast corner of her lot. 95 Broadway promptly sued, alleging easement

by necessity, easement by estoppel, easement by prescription, and quiet title; and

requesting a declaratory judgment establishing its easement rights. It also

requested both temporary and permanent injunctive relief, proposing a minimum

four-foot walkway from the southwest door of Nautical across Geske’s property to

Allen Avenue. Geske resisted and counterclaimed, alleging slander of title. The

court granted the temporary injunction pending further proceedings. Soon after

the lawsuit was filed, 95 Broadway offered to purchase the property from Geske,

but she declined.3 The parties then spent the next year conducting discovery.

In July 2023, fifty-two days before trial, 95 Broadway moved to amend its

petition. It sought to add two additional claims and language regarding water flow

and drainage. After a hearing, the court denied the motion, finding that “two new

counts sixty days before trial is extremely prejudicial” and would require substantial

delay in proceedings. Geske then moved to exclude evidence of water flow or

drainage; specifically, she cited 95 Broadway’s proposed expert witness, who was

designated as a “drainage expert,” and related exhibits. The court granted the

2 While this action is separate from the dispute before us, the court took judicial

notice of Dickinson County No. CVCV030954 and admitted the ruling as evidence
because it found the case “instructive.”
3 Geske actually agreed to a “$300,000 a year” lease for the six feet requested by

95 Broadway, but she implied this was not a serious counteroffer.
7

motion in part, excluding the expert but allowing “testimony in practical ways.” As

a result, there was substantial layperson testimony on this issue at trial.

After a three-day bench trial, the court dismissed all claims and

counterclaims. It also revoked the temporary injunction against Geske.

95 Broadway appeals, alleging the court erred by denying its

easement-by-estoppel claim and failing to resolve the parties’ drainage issues.4

II. Review.

Because this case was tried in equity, our review is de novo. Johnson v.

Johnson, 301 N.W.2d 750, 752 (Iowa 1981). While not binding, we give deference

to the district court’s fact findings, especially those regarding witness credibility.

Id.; Iowa R. App. P. 6.904(3)(g).

III. Discussion.

On appeal, 95 Broadway challenges the court’s decision not to grant it an

easement by estoppel and its revocation of the injunction, arguing that the

drainage concerns warranted further action. We address each argument in turn.

A. Alleged Easement Right.

95 Broadway appeals the court’s denial of an easement by estoppel, urging

us to ignore supreme court precedent and focus solely on practicality without

analysis of any elements. From the outset, we concede the law on this issue is

4 95 Broadway moved for an emergency stay pending appeal, contending the court

erred by “not entertaining any further injunctions between the parties.” The Iowa
Supreme Court denied the motion. While 95 Broadway conceded the issue had
already been resolved by the Iowa Supreme Court’s denial, it reasserted its
argument in its brief. But we do not consider it here. Because that motion was
denied before the case was transferred to our court, we lack jurisdiction. See Iowa
R. App. P. 6.1001(2) (granting our court jurisdiction over writs and motions “only in
cases that have been transferred to the court of appeals by the supreme court”).
8

complicated. See e.g., Fencl v. City of Harpers Ferry, 620 N.W.2d 808, 815

(Iowa 2000) (acknowledging the equitable-estoppel “elements have been largely

ignored” in past precedent and applying an adverse-possession analysis instead);

Johnson, 301 N.W.2d at 754 (finding “there is no hard-and-fast rule for determining

when equitable estoppel will be applicable”). But while Iowa courts do not always

stick to a rigid pattern of analysis regarding this doctrine, they do not completely

ignore the essential elements. See Farmers & Mechs. Sav. Bank of Minneapolis

v. Campbell, 141 N.W.2d 917, 922 (Iowa 1966) (recognizing “the four essential

elements of estoppel” and applying them in its analysis); Johnson, 301 N.W.2d

at 754 (applying the traditional elements of estoppel). Iowa courts further agree

on the primary purposes of the doctrine: “public policy, fair dealing, good faith, and

justice.” Johnson, 301 N.W.2d at 754 (citation omitted). This has led courts to

previously apply the equitable-estoppel doctrine for real property “when a party

has through his acts, words or silence led another to take a position” that results

in inequity. Id. at 754. We therefore interfere “wherever necessary to prevent

injustice.” Id. at 753.

After reviewing the record, we do not find that an easement by estoppel is

appropriate here. While 95 Broadway may not be required to prove every element

completely, we still use this framework to guide our analysis.5 95 Broadway claims

5 The “four essential elements of estoppel” are:

A. False representation or concealment of material facts,
B. Lack of knowledge of the true facts on the part of the person to
whom the misrepresentation or concealment is made,
C. Intent of the party making the representation that the party to
whom it is made shall rely thereon,
D. Reliance on such fraudulent statement or concealment by the
party to whom made resulting in his prejudice.
9

that the previous owners of the adjoining properties (the Williamses and Hentges)

had an agreement to use the southwest door; 95 Broadway then inherited such

agreement through the purchase of the property. But this is incorrect. The

estoppel doctrine relies on an agreement between the parties themselves, not on

predecessors. See Black v. Whitacre, 221 N.W. 825, 828 (Iowa 1928) (finding

implied agreement between third parties does not bind current owner).

95 Broadway does not argue Geske ever agreed to its use of the property or that

it relied on such agreement. We similarly can find no evidence at all that Geske

“through [her] acts, words or silence” led 95 Broadway to rely on its use of the

southwest door. Johnson, 301 N.W.2d at 754. In fact, there is little dispute that

Geske’s position was unmistakable: she consistently enforced her rights to the

property, warning off trespassers, setting up physical barriers, and refusing any

offers to sell or negotiate use.

Further, while practicality and functionality are not our primary focuses, we

do consider the general principles of fairness. See id. The court already

determined that 95 Broadway’s motivations and actions were not governed by a

desire for equity; instead, it found, “they are more financially driven over any other

concern such as public safety and rights of adjoining landowners” and “their

decisions were only made for financial gain.” In contrast, it found Geske “overall

credible,” albeit clouded by “her strong frustration.” The court found that enforcing

this doctrine would result in 95 Broadway being rewarded for failing to correct

safety concerns during their two large-scale renovations; this is despite the

Campbell, 141 N.W.2d at 922 (citation omitted).
10

proposed emergency addition costing $55,000, a fraction of the million-dollar

investment already into its properties. It would also result in Geske having a

property that was “basically unusable” for the exact purpose for which she bought

it. We give deference to the court’s determinations regarding the parties’ credibility

and agree with its sound reasoning. Id. at 752. We further note that 95 Broadway’s

predicament is largely self-inflicted. It failed to seek a title opinion, either before

purchasing the property or expanding the building to the outer edges of the lot

without any setback. It does not comport with the principles of fairness to allow

95 Broadway to create its own issue and then request compensation for it. We

find enforcing 95 Broadway’s position would lead to an unfair result, one directly

contradictory to the doctrine’s ultimate goal. See id. at 754. We therefore affirm

the court’s ruling.

B. Natural Flow of Water.

Finally, 95 Broadway contends the district court improperly failed to resolve

the parties’ drainage issues when it revoked the injunction. But Geske challenges

error preservation on this issue. 95 Broadway moved to amend its pleadings to

include this issue at trial. But the court specifically overruled it, finding

95 Broadway’s request “extremely prejudicial” because it was brought two months

before trial. Despite the court limiting such drainage evidence, there is little dispute

the issue was considered. The parties presented relevant evidence, and several

witnesses testified to the water flow and drainage concerns on the properties. In

fact, the court even cross-examined the witnesses on its own regarding this issue.

But that is not enough for our review. “[I]ssues must ordinarily be both raised and

decided by the district court before we will decide them on appeal.” Meier v.
11

Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). The court expressly declined to rule

on the drainage issue, stating that it was “not going to make any conclusions” or

“issue any further injunction.” Instead, the court specifically directed the parties to

work this issue out amongst themselves and under the guidance of the city, who

“has a plan for the water to be relieved on Allen Avenue.”6 There is nothing in

these comments to suggest that this was an “order” or “ruling” on the drainage

issues. While 95 Broadway could have asked the court to reconsider or enlarge

its decision to preserve error, see id. (allowing “the party who raised the issue” to

request additional clarification on a ruling to preserve error), it did not. This issue

was therefore not preserved for our review, and we do not consider its merits. See

id. at 541 (waiving issues not properly preserved for our review).

IV. Disposition.

Because the court did not err in declining to recognize 95 Broadway’s

proposed easement and we do not reach the merits on its other issues, we affirm.

AFFIRMED.

6 Several witnesses testified that the city was planning to purchase the Okoboji

Bible Conference grounds and create additional parking. Based on testimonies,
creation of the lot would require the city to address and resolve the water flow
issues on the adjoining lots.