Scott Brown v. City of Red Oak

IN THE COURT OF APPEALS OF IOWA

No. 21-1759
Filed November 17, 2022

SCOTT BROWN,
Plaintiff-Appellant,

vs.

CITY OF RED OAK,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Montgomery County,

Jeffrey L. Larson, Judge.

A plaintiff appeals the district court’s denial of his motion for leave to amend

his petition. REVERSED AND REMANDED.

Brian E. Tackett, Glenwood, for appellant.

Brianna Sorensen, Shenandoah, for appellee.

Considered by Ahlers, P.J., and Badding and Chicchelly, JJ.
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CHICCHELLY, Judge.

Scott Brown appeals the district court’s denial of his motion for leave to

amend his petition against the City of Red Oak (City). Finding the district court

abused its discretion, we reverse its ruling and remand for further proceedings

consistent with this opinion.

In August 2018, Brown sought guidance from the City regarding setback or

permitting requirements for a retaining wall he wished to construct. The City Clerk

left a voicemail informing Brown that there are no setback or permitting

requirements but relayed a height limitation to ensure visibility at the street corner.

Brown proceeded with construction on this advice.

In September, the City informed Brown that his nearly completed retaining

wall was in violation of city code because it extends beyond his property line onto

the City’s right-of-way. On October 18, Brown received notice that he must either

tear the wall down by December 24 or incur a penalty of $750 to $1000 per day for

the continuing infraction and be assessed the cost for the City to remove it for him.

Brown requested and received a hearing before the city council in December,

whereafter the council voted to deny Brown’s request to occupy the right-of-way.

In light of the winter season, the City granted Brown an extension on removal of

the wall until the spring.

In April 2019, Brown filed a petition in district court requesting a temporary

injunction and declaratory relief, or monetary damages in the alternative. He

claimed the wall should be allowed to stand based on the City’s acquiescence to

the use of its property in this manner, evidenced by other walls similarly
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encroaching on city property. Alternatively, Brown asserted the City should bear

the cost of removal because he relied on the City’s advice in its construction.

In March 2020, Brown served discovery requests on the City. The City filed

its response on June 9, wherein it “acknowledge[d] that there are other retaining

walls which encroach onto the city’s right of way.” The response further indicated

that the City has never before forcibly removed such a structure, brought suit to

enforce its right-of-way, granted a variance to allow such encroachment, or

passively permitted such encroachment. On June 19, Brown filed a motion for

leave to amend his petition to add a claim for selective enforcement. He alleged

a violation of the state constitution’s equal protection clause based on the City’s

lack of other enforcement and his previous “bad blood” with a city employee. After

an unreported hearing, the court denied the motion, summarily citing an inability to

determine whether the amendment was appropriate. Brown filed a motion to

reconsider, which the court denied after Brown and his attorney failed to appear at

the hearing. Our supreme court denied Brown’s subsequent application for

interlocutory appeal.

In October 2021, the district court held a hearing on the City’s motion for

summary judgment, during which Brown made an oral renewal of his motion for

leave to amend. In November, the court granted summary judgment in favor of

the City, but its order did not provide a ruling with respect to Brown’s renewed

motion. Brown filed a timely appeal, alleging the district court abused its discretion

in denying his motion.

The City alleges Brown failed to preserve error because he (1) failed to

request an enlargement of the findings in the original denial of his motion to amend,
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(2) failed to appear at the hearing on his motion to reconsider the denial, and (3)

failed to bring to the district court’s attention the lack of ruling on his renewed

motion for amendment made at the hearing on summary judgment. Although

Brown did not request an enlargement per se, he did file a motion to reconsider

after the district court’s initial ruling on his motion to amend. Moreover, his failure

to appear at the hearing on his motion to reconsider or seek another ruling after

he raised the motion again did not impede the objectives of error preservation:

For an issue to be preserved[,] the objectives of the error-
preservation rules must be accomplished: challenges must be raised
at the earliest possible point, opposing counsel must have notice and
the opportunity to be heard, and the district court must have the
opportunity to consider and pronounce a ruling on the issue.

State v. Opperman, 826 N.W.2d 131, 133 (Iowa Ct. App. 2012). Indeed, an

adverse, final ruling on a pre-trial motion may be sufficient to preserve error even

when the motion is not renewed at trial. See, e.g., State v. Leedom, 938 N.W.2d

177, 191 (Iowa 2020) (finding counsel need not renew its objection at trial to

preserve error on a court’s final ruling on a motion in limine). Because Brown’s

pre-trial actions accomplished the requisite objectives, error was preserved.

As for the heart of Brown’s claim, he contends the district court abused its

discretion because the proposed amendment would not substantially change the

issues before the court or unfairly surprise the defendant. See Holliday v. Rain &

Hail L.L.C., 690 N.W.2d 59, 63 (Iowa 2004) (setting forth standard of review). “An

abuse of discretion occurs when a district court exercises its discretion on grounds

or for reasons clearly untenable or to an extent clearly unreasonable.” State v.

Mulatillo, 907 N.W.2d 511, 518 (Iowa 2018) (citation omitted).
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Here, the district court provided no substantive reason for its determination.

The court’s ruling read simply: “The plaintiff’s motion to amend petition is denied.

The court has no basis to determine if an amendment is appropriate.” Although

Brown’s motion for leave to amend simply stated that discovery revealed another

cause of action without providing more specific context, Brown’s response to the

City’s resistance to his motion more fully laid out his claim before the district court’s

ruling. Therein, Brown recounted the City’s admission that “it has never forcibly

removed a similar structure, nor has it ever brought suit to enforce, nor has it ever

granted a variance to permit such encroachment” despite similar retaining walls

within the municipality. Brown also provided an affidavit in which he alleged the

City was pursuing enforcement based on his personal conflict with a particular city

employee. On this record, the district court had a basis to determine whether

amendment to add a claim for selective enforcement was appropriate.

The City argues Brown’s original pleading was drafted negligently and his

proposed amendment would substantially change the issues. The City alleges its

discovery response did not provide new information to Brown because he was

previously aware of his interactions with the city employee in question and the

existence of other retaining walls. However, the City does not contend that Brown

should have known of its lack of enforcement against other residents. As this

information is a key element of selective enforcement, we do not fault Brown for

his failure to plead this claim from the outset. However, we note Brown’s claim

would require additional evidentiary support: “[M]ere laxity in enforcement or some

exercise of selective enforcement does not in itself establish a constitutional

violation.” Greenawalt v. Zoning Bd. of Adjustment, 345 N.W.2d 537, 546 (Iowa
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1984) (citations omitted); see also Snowden v. Hughes, 321 U.S. 1, 8 (1944)

(“[U]nequal application [of a statute] to those who are entitled to be treated alike,

is not a denial of equal protection unless there is shown to be present in it an

element of intentional or purposeful discrimination.”); In re Kaster, 454 N.W.2d 876,

880 (Iowa 1990) (“The doctrine of ‘selective enforcement’ addresses actual

arbitrary and discriminatory application of the law. The doctrine is grounded on

ordinary equal protection principles and prohibits prosecution based upon an

unjustifiable standard such as race, religion, or the exercise of protected rights.”).

Nevertheless, Iowa Rule of Civil Procedure 1.402(4) provides that “[l]eave

to amend . . . shall be freely given when justice so requires.” In application,

[a]llowance of an amendment to a pleading is the rule and denial the
exception, although an amendment is not permissible which will
substantially change the issue. Additionally, a trial court has
considerable discretion as to whether an appropriate request for
leave to amend should be granted or denied and we will reverse only
where a clear abuse of discretion is shown.

Allison-Kesley Ag Ctr., Inc. v. Hildebrand, 485 N.W.2d 841, 845 (Iowa 1992)

(citation omitted). The district court’s order does not address whether the

proposed amendment would substantially change the issues or be otherwise

inappropriate. See, e.g., id. at 846 (affirming denial of leave to amend based on

timing and reasonable belief that the moving party knew or should have known of

the basis for the claim since inception of the suit). As we believe the court’s

reference to an inability to determine the suitability of the amendment was

misplaced in this instance, we find its ruling constituted an abuse of discretion.
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Accordingly, we reverse the district court and remand for further proceedings

consistent with this opinion.

REVERSED AND REMANDED.