IN THE SUPREME COURT OF IOWA

No. 15–1540

Filed March 10, 2017

Amended May 3, 2017

TUNIS E. DEN HARTOG, SHIRLEY ANN SCHWEERTMAN, 

LEONARD G. LYBBERT, MARY ELLEN MOLINARO, WILLIAM JAMES 

ROBERT, AND MARK D. FISHER,

Appellants,

vs.

CITY OF WATERLOO, IOWA,

Appellee,

SUNNYSIDE SOUTH ADDITION, LLC,

Intervenor.

Appeal from the Iowa District Court for Black Hawk County, 

Andrea J. Dryer, Judge. 

Taxpayers challenge the district court’s ruling finding a 

municipality was not in contempt of a court order forbidding it from 

selling certain property except in compliance with statutory 

requirements. AFFIRMED AS MODIFIED.

Dave Nagle, Waterloo, for appellants. 

David Zellhoefer, Waterloo City Attorney, and Ivan T. Webber of 

Ahlers & Cooney, P.C., Des Moines, for appellee. 
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CADY, Chief Justice.

In this case, we must decide if we should hold a municipality in 

contempt of a court order that required it to dispose of certain property 

only in compliance with Iowa Code section 306.23 (2014). The 

municipality promulgated notices that gave a development company 

preferential bidding on the property even though it was not a prior or 

adjacent landowner, gave that same development company a bid credit 

for the improvements it had already made to the property, described the 

land as delineated in the plat filed for the contested development, and 

used a backdated valuation. Following a hearing, the district court 

found the notices did not satisfy the requirements of section 306.23, but 

nevertheless held the municipality’s actions did not rise to the level of 

contempt. The taxpayers appealed. On appeal, we affirm. We also 

address additional arguments presented to, but not ruled on by, the 

district court. We conclude the municipality violated the injunction but 

agree the record does not establish beyond a reasonable doubt the 

municipality acted with the requisite willfulness to establish contempt. 

I. Factual Background and Proceedings. 

This case is before us for the second time. The factual background 

can be summarized from our earlier opinion, as follows: 

The State of Iowa acquired property in Black Hawk 

County for purposes of constructing a state highway in 

1959. The highway had originally been planned as, and 

enough land had been acquired for, a four-lane project, but 

the highway was eventually constructed with just two lanes. 

In 1983, the state transferred control of the highway and 

attendant property to the City of Waterloo (the City), in 

accordance with the terms of Iowa Code chapter 306, 

entitled “Establishment, Alteration, and Vacation of 

Highways.” After the transfer, the highway property became 

known as San Marnan Drive in Waterloo. The City has 

retained jurisdiction and control over the property in the 

years since and has maintained it with grading, mowing, and 

weed control. 
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The City has now indicated its intention to transfer the 

property to Sunnyside South Addition, LLC (Sunnyside), as 

part of a development agreement. Under the terms of the 

agreement, Sunnyside proposes to relocate San Marnan 

Drive by reconstructing it approximately eighty feet south of 

its current position and intends to retain the property on 

which the current San Marnan Drive sits for purposes of 

residential construction. The City proposes to transfer the 

highway property to Sunnyside according to the agreement 

for the sum of $1.00. 

Taxpaying residents of Waterloo . . . became aware of 

and objected to the proposed transfer in 2011. They filed in 

the district court a petition for writ of mandamus and 

temporary injunction requesting postponement of the sale on 

the ground the City’s proposed transaction failed to comply 

with certain appraisal, notice, right-of-first refusal, and 

public bid requirements set forth in chapter 306. 

Den Hartog v. City of Waterloo, 847 N.W.2d 459, 460–61 (Iowa 2014). 

The dispute was submitted to the district court for a resolution. 

The fighting issue was whether a statutory preference given to certain 

persons when unused right-of-way land is intended to be sold apply not 

only to land acquired for highway purposes but never used, but also land 

used for highway purposes that were later discontinued. Following a 

hearing, the district court held the statutory preference procedures did 

not apply to the sale of the right-of-way land in this case and dismissed 

the motion to enjoin the sale and the petition for writ of mandamus. 

The taxpayers filed an appeal from the district court decision. 

Around the same time, the City entered into a contract to sell the rightof-way land to Sunnyside. It also entered into a development agreement 

with Sunnyside. Under the agreement, Sunnyside was required to 

develop the unused right-of-way, which ran next to a country club and 

golf course, into lots for residential development. The City also gave 

Sunnyside a special warranty deed to the land. During the pendency of 

the appeal, the City platted the land for the development, and Sunnyside 

relocated San Marnan Drive to the south. Sunnyside also graded the 
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land for the housing development and installed curbs, gutters, storm 

sewers, utilities, and took other action necessary to complete the 

development site for home construction. 

In June 2014, we reversed the decision of the district court. We 

held the statutory sales preference did apply to land formerly used for 

highway purposes. We remanded the case to the district court to enter 

the requested injunction against the City. On July 7, 2014, the district 

court entered an order enjoining the City “from selling or transferring the 

property in this proceeding without first following the procedures 

prescribed in Iowa Code section 306.23.” 

The City subsequently moved to dissolve the injunction. It did not 

assert the sale of the property to Sunnyside was complete. Instead, it 

asserted that it desired to sell the land and proposed to do so by first 

giving notice of the intended sale consistent with the requirements of the 

preference statute. On February 20, 2015, the district court denied the 

motion to dissolve the injunction. 

The City then proceeded to give the notices of the intended sale 

under the preference statute. The taxpayers filed an application to find 

the City in contempt of court for noncompliance with the statutory 

requirements of the notices. They also sought a temporary restraining 

order to prevent any sale. 

On June 4, 2015, the district court held the notices of sale sent by 

the City failed to comply with the statutory sales preference. However, it 

found the deficiencies in the notices were not willful and did not amount 

to contempt. It further found a restraining order was unnecessary 

because the prior injunction remained in effect. 

The taxpayers appealed. On appeal, they claim the notices sent by 

the City failed to comply with the governing statute in four ways and that 
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the noncompliance constituted a willful and wanton disregard for the 

injunction entered on July 7, 2014. The taxpayers also claim the district 

court erred in failing to address each claim of noncompliance. The City 

argued no contempt could occur without a final sale. It also argued that 

any noncompliance with Iowa Code section 306.23 was not 

contemptuous. 

II. Standard of Review. 

Despite the vast procedural background of this case, the 

fundamental question now presented is whether the district court erred 

in failing to find the City in contempt of court for sending notices that did 

not comply with Iowa Code section 306.23. We permit the direct appeal 

of a dismissal of an application for contempt. State v. Lipcamon, 483 

N.W.2d 605, 606 (Iowa 1992). 

Our cases impose a special standard of review of the facts in 

contempt cases. If it is claimed that a ruling is not 

supported by substantial evidence, “we examine the 

evidence, not de novo, but to assure ourselves that proper 

proof supports the judgment.” “The exact extent to which we 

may go in deciding questions of fact from the record is 

vaguely defined; it lies in a shadow land, a ‘twilight zone,’

whose boundaries do not admit of definite charting.” The 

finding of contempt must be established by proof beyond a 

reasonable doubt. 

Id. (first quoting Palmer Coll. of Chiropractic v. Iowa Dist. Ct., 412 N.W.2d 

617, 619 (Iowa 1987); then quoting Watson v. Charlton, 243 Iowa 80, 92, 

50 N.W.2d 605, 612 (1951)); see also Patterson v. Keleher, 365 N.W.2d 

22, 24 (Iowa 1985) (“Our review is not de novo; while we give much 

weight to the trial court’s findings of fact, we are not bound by them.”). 

Since proof beyond a reasonable doubt must be established 

for a finding of contempt, substantial evidence to support 

such a finding is “such evidence as could convince a rational 

trier of fact that the alleged contemnor is guilty of contempt 

beyond a reasonable doubt.” 
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Reis v. Iowa Dist. Ct., 787 N.W.2d 61, 66 (Iowa 2010) (quoting In re 

Marriage of Jacobo, 526 N.W.2d 859, 866 (Iowa 1995)). “We review the

district court’s conclusions of law for errors at law.” Id.; see also 

Lipcamon, 483 N.W.2d at 606–07 (“We are not bound by the trial court’s 

conclusions of law and may inquire into whether it applied erroneous 

rules of law that materially affected its decision.”). “We are authorized 

. . . to find contempt ‘notwithstanding the fact that the district judge 

found that a contempt had not been committed.’ ” Orkin Exterminating 

Co. v. Burnett, 160 N.W.2d 427, 430–31 (Iowa 1968) (quoting Lake v. 

Wolfe, 108 Iowa 184, 186, 78 N.W. 811, 811 (1899)). 

III. Contempt of Court. 

“Illegal resistance to any order” of the court is a contemptuous act. 

Iowa Code § 665.2(3). However, “[r]esistance to or violation of an order 

cannot be considered contempt of court unless it is willful.” Reis, 787 

N.W.2d at 68. Thus, “[c]ontempt actions are adjudicated to determine 

whether the alleged contemner acted in willful disobedience of a court 

order beyond a reasonable doubt.” City of Dubuque v. Iowa Dist. Ct., 725 

N.W.2d 449, 452 (Iowa 2006). 

The party alleging contempt bears the initial burden of proving “a 

duty to obey a court order” and a “willful[] fail[ure] to perform that duty.” 

Ary v. Iowa Dist. Ct., 735 N.W.2d 621, 624 (Iowa 2007). If the party 

makes this showing, “the burden shifts to the alleged contemner to 

produce evidence suggesting the violation was not willful.” Id. 

Disobedience is willful when it is 

conduct that is intentional and deliberate with a bad or evil 

purpose, or wanton and in disregard of the rights of others, 

or contrary to a known duty, or unauthorized, coupled with 

an unconcern whether the contemner had the right or not. 
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Reis, 787 N.W.2d at 68 (quoting Amro v. Iowa Dist. Ct., 429 N.W.2d 135, 

140 (Iowa 1988)). However, “[a] failure to follow a court order is not 

willful if a contemner shows the order was indefinite or that the 

contemner was unable to comply with the order.” Ary, 735 N.W.2d at 

624. The interpretation of an order’s language is a question of law. See 

Zimmermann v. Iowa Dist. Ct., 480 N.W.2d 70, 74 (Iowa 1992). 

In construing [an] injunction, effect should be given to every 

word, if possible, to give the injunction as a whole a 

consistent and reasonable meaning. Effect should also “be 

given to that which is clearly implied as well as that which is 

expressed.” 

Bear v. Iowa Dist. Ct., 540 N.W.2d 439, 441 (Iowa 1995) (citation omitted) 

(quoting In re Marriage of Lawson, 409 N.W.2d 181, 182 (Iowa 1987)). 

Our review is of “the spirit as well as the letter of the injunction to 

determine if its intent has been honestly and fairly obeyed.” Id. (quoting 

Burnett, 160 N.W.2d at 431); see also Matlock v. Weets, 531 N.W.2d 118, 

124 (Iowa 1995). 

A. Court Order. The district court order prohibits the City “from 

selling or transferring the property . . . without first following the 

procedures prescribed in Iowa Code Section 306.23.” The City asserts 

the order only prohibits the City from completing a sale in violation of the 

statute, not from attempting to sell the property in violation of the 

statute. However, the phrase “from selling or transferring” is written in 

the present tense. Thus, the statutory requirements are part of the 

process that must be performed in “selling or transferring” the land. 

Accordingly, the injunction encompasses efforts to sell the land in 

compliance with the statute, not merely the completed sale. We proceed 

to consider the statutory requirements that must be followed by the City 

in selling the land. 
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B. Statutory Requirements. Under Iowa law, the governmental 

agency in control of land that is an unused right-of-way may sell it for 

cash.1 Iowa Code § 306.22. We have held this statute applies both to 

land acquired for highway purposes, but never used, and to land 

acquired and used for highway purposes that are discontinued. 

Den Hartog, 847 N.W.2d at 465–66. The law, however, gives a sales 

preference to two classes of persons. It gives a preference to the person 

who is the “present owner of adjacent land from which the tract, parcel, 

piece of land, or part thereof, was originally purchased or condemned for 

highway purposes.” Iowa Code § 306.23(1). It also gives a preference to 

the person who owned the land at the time it was acquired. Id. The 

agency must give these persons an opportunity to purchase the land 

before proceeding with the sale. Id. § 306.23(2). 

The statutory sales preference makes it possible for land taken for 

highway purposes to be returned to the particular tract of land or to the 

particular owner from which it was acquired. Thus, the “present owner 

of adjacent land from which” the unused tract or unused part of a tract 

controlled by the agency “was originally purchased or condemned” refers 

to present owners of land that lies adjacent to the unused right-of-way 

because the right-of-way was acquired from that land. The “person who 

owned the land” at the time it was acquired would also be the “present 

1It appears only the Iowa Department of Transportation (DOT) may sell the land 

on an installment contract. Section 306.22(2) authorizes “[t]he department” to 

“contract for the sale of any tract of land.” The statute is clear that “[t]he department” 

refers to the DOT. See Iowa Code § 306.2(3). Any “agency,” on the other hand, may sell 

the land for cash. See id. § 306.22(1). An “agency” is “any governmental body which 

exercises jurisdiction over any road.” Id. § 306.2(1). “When the legislature has defined 

words in a statute—that is, when the legislature has opted to ‘act as its own 

lexicographer’—those definitions bind us.” In re J.C., 857 N.W.2d 495, 500 (Iowa 2014) 

(quoting State v. Fischer, 785 N.W.2d 697, 702 (Iowa 2010)). 

 
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owner of adjacent land” if the person who owned the land at the time it 

was acquired still owned the tract of land from which the right-of-way 

was acquired. See Op. Iowa Att’y Gen. No. 97–11–1 (Nov. 4, 1997), 1997 

WL 816849, at *2 (finding the Act required the DOT to offer a last

previous owner the opportunity to buy back just that particular piece of 

land it acquired from that owner); see also Office of Right of Way, Iowa 

Dep’t of Transp., Property Management Manual 29 (March 2016) (defining 

“adjacent owner” for purposes of Iowa Code section 306.23). 

The purpose of this statute is consistent with the purpose of Iowa 

Code section 6B.56, which created a right of first refusal for condemnees 

and was enacted at the same time section 306.23 was amended to add 

the original-owner preference. See 1997 Iowa Acts ch. 149, §§ 1, 2 

(codified at Iowa Code § 6B.56 and § 306.23 (1999)). The original 

statutory preference for adjacent landowners was enacted in 1934. See 

1934 Iowa Acts ch. 8, § 2 (codified at Iowa Code § 4755-f2 (1935)). The 

statute prefers restoration of unused rights-of-way to either the original 

tract or original owner from which it was acquired before selling it to 

another person. See Iowa Code § 306.23(1)–(2) (2014). 

The sales preference operates by requiring the agency to send 

notice of the agency’s intent to sell the land to the two classes of persons

entitled to preference. See Iowa Code § 306.23(1). The notice must 

identify the name and address of any other person to whom the notice 

was sent and state “the fair market value of the land based on an 

appraisal by an independent appraiser.” Id. 

The notice gives the two classes of persons an opportunity “to be 

heard and to make offers within sixty days” of the time the notice is given 

for the tract, parcel, or piece of land to be sold. Id. § 306.23(2). An offer 

that equals or exceeds the amount of any other offer received and equals 
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or exceeds the fair market value is given preference by the agency. Id. If 

the agency receives no offers within the sixty-day period or if the offers 

do not equal or exceed the fair market value of the land, the agency is 

permitted to proceed with its intended sale for cash. 

C. Compliance with the Statutory Requirements. The 

taxpayers claim the notices sent by the City were deficient in four ways. 

The district court did not expressly rule on each of these alleged failings. 

However, the taxpayers preserved error for our review by filing a motion 

to amend or enlarge. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 

2002). 

First, the taxpayers claim the notices were deficient because, 

among others entitled to notice, the City included Sunnyside as a 

preferential buyer within the “present owner of adjacent land” category. 

Without this status, Sunnyside does not qualify for notice since it was 

clearly not an owner of the right-of-way at the time it was acquired. See 

Iowa Code § 306.23(1) (noting the only two ownership interests entitled 

to notice). However, the City makes no claim on appeal that Sunnyside 

is a present owner of land adjacent to the right-of-way from which the 

right-of-way was acquired. Any claim of ownership by Sunnyside derived 

from a sale of the right-of-way land from the City did not make

Sunnyside the present owner of land adjacent to the right-of-way. Thus, 

the City should not have sent notices to Sunnyside. 

Second, the taxpayers claim the notices did not comply with the 

statute because they gave Sunnyside a bid credit. We need not address 

this claim because the record in this case does not support a finding that 

Sunnyside qualified as a preferential bidder under the statute. 

Third, the taxpayers claim the notices were deficient because rightof-way properties intended to be sold by the City were described in the 
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notices by using the platted descriptions recorded during the pendency 

of the first appeal. The preference statute does not specifically require 

the selling agency to describe the land intended to be sold, but a 

description would be implicit in the requirement to give notice of the sale. 

A description would be sufficient if it reasonably notified those entitled to 

notice of the land intended to be sold. Normally, land that has been 

platted provides a reasonable description. See City of Clinton v. Owners 

of Prop. Situated Within Certain Described Boundaries, 191 N.W.2d 671, 

674–75 (Iowa 1971) (noting a description may be sufficient if it 

reasonably identifies the land). Thus, the descriptions here were 

sufficient. 

Finally, the taxpayers claim the notices were deficient because the 

City identified the fair market value of the right-of-way land in the 

notices prior to the time the land was improved by Sunnyside. Again, 

the statute does not specifically identify the time for the valuation to take 

place. However, the statutory-notice process implies the fair market 

value would be the value at or near the time the notice of impending sale 

is given. Accordingly, the fair market value in this case would include 

the value of the improvements made to the land by Sunnyside prior to 

the notices. See Den Hartog, 847 N.W.2d at 465 (noting one of the 

“purposes underlying the chapter 306 framework” is to protect the City 

and its taxpayers by attaining the best price for the land). Thus, the 

notices must state the present fair market value of the land to be sold. 

Any preferential offer would need to equal or exceed the fair market value 

of the land as improved by Sunnyside. If no such offers are received, the 

City may then proceed to confirm its prior sale to Sunnyside. 
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D. Willful Violations. The final question is the City’s culpability. 

To reiterate, we ask whether the City acted with willful disobedience. See 

Reis, 787 N.W.2d at 68. Disobedience is willful when it is 

conduct that is intentional and deliberate with a bad or evil 

purpose, or wanton and in disregard of the rights of others, 

or contrary to a known duty, or unauthorized, coupled with 

an unconcern whether the contemner had the right or not. 

Id. (quoting Amro, 429 N.W.2d at 140). 

The taxpayers rely on testimony establishing the City’s actions 

were far out of the norm for the typical disposal of right-of-way. They 

point to the obvious nature of some of the violations and assert that is 

sufficient evidence of the requisite mental state. The City attributed any 

failings to the complicated circumstances. The district court found the 

taxpayers failed to prove willful disobedience beyond a reasonable doubt. 

In responding to this appeal, the City expands on its earlier arguments, 

arguing there is a lack of evidence of intent and that even if its acts were 

contemptuous, it should be given the opportunity to purge itself of 

contempt. 

We agree with the district court. Based on this record, the 

taxpayers have not met their high burden of proving the City acted 

contemptuously beyond a reasonable doubt. While some aspects of the 

notices are particularly troubling, we recognize the limited interpretive 

guidance available on this seldom-cited statute. However, now that we 

have ruled on each of the faults of the notices identified by the taxpayers, 

we expect future notices will be in compliance with Iowa Code section 

306.23. 

It cannot go unnoticed that the sale of the right-of-way land and 

compliance with the statutory preference has been complicated by the 

prior sale of the land to Sunnyside and the subsequent development of 
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the land by Sunnyside into residential lots during the pendency of the 

first appeal. Yet, the sole issue presented in this appeal involves the 

actions of the City in attempting to comply with the statute under these 

complex circumstances. Under the course of litigation pursued in this 

case, any such issues of Sunnyside’s legal or equitable rights in the land 

would not likely be ripe until such time as a prior or adjacent owner 

utilized its sale preference established under the statute. See Taft v. 

Iowa Dist. Ct., 879 N.W.2d 634, 638 (Iowa 2016) (noting we generally do 

not resolve hypothetical controversies). 

IV. Conclusion. 

We conclude substantial evidence supports the finding of the 

district court that the City has not acted contemptuously in failing to 

comply with the preference requirements of Iowa Code section 306.23 at 

this point in the proceedings. We affirm the decision of the district court

with the additional guidance laid out above. 

AFFIRMED AS MODIFIED. 

All justices concur except Zager, J., who takes no part.