E-FILED 2013 AUG 27 10:53 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 AUG 27 10:53 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 AUG 27 10:53 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 SEP 03 1:01 PM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 SEP 03 3:47 PM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 SEP 03 3:47 PM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 SEP 03 3:47 PM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 SEP 05 8:14 AM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT OF IOWA IN AND FOR SAC COUNTY * JOHN DRILLING, * EQCV019458 Pl !"#!$$, * * ORDER SETTING HEARING %& * AND PRESCRI'ING HENRY HORST, * NOTICE * D($(") "#& * * Pl !"#!$$ * + ,(-.(+#() " !//()! #( H( ,!"0 1" *!+ ,(-.(+# $1, T(/21, ,3 I"4."5#!1"& T*( C1.,# $!")+ #* # H( ,!"0 +*1.l) 6( 0, "#()& IT IS HERE'Y ORDERED #* # #*!+ / ##(, +* ll 51/( 6($1,( #*( C1.,# 1" #*( 74#* ) 3 1$ S(2#(/6(,, 7018 # 7980 1:5l15; 2&/& !" #*( 51.,#,11/ !" #*( 51.,#*1.+( !" S 5 C!#3, S 5 C1."#3, I1< & IT IS FURTHER ORDERED #* # #*( D($(") "# +* ll 6( +(,%() 5123 1$ #*!+ O,)(, 63 #*( S 5 C1."#3 S*(,!$$:+ D(2 ,#/("#&

E-FILED 2013 SEP 05 8:14 AM SAC - CLERK OF DISTRICT COURT

State of Iowa Courts Type: Case Number EQCV019458 OTHER ORDER Case Title JOHN DRILLING VS. HENRY HORST So Ordered

Electronically signed on 2013-09-05 08:14:24

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E-FILED 2013 SEP 09 11:49 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 SEP 18 11:36 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 SEP 18 11:36 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 SEP 18 11:36 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 SEP 18 11:36 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 SEP 18 11:36 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 SEP 18 11:36 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 SEP 18 11:36 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 SEP 18 11:36 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 SEP 18 11:36 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 SEP 18 11:36 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 SEP 18 11:36 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 SEP 18 11:36 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 SEP 18 11:36 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 SEP 23 11:47 AM SAC - CLERK OF DISTRICT COURT

2RCV01

IN THE IOWA DISTRICT COURT FOR SAC COUNTY

JOHN R DRILLING , PLAINTIFF(S), vs. HENRY HORST , DEFENDANT(S). ORDER Case No. 02811 EQCV019458

A hearing in the above case has been set for September 24, 2013. The file now reflects that a cross-petition has been filed, which adds several new parties, who have not yet been served. Accordingly, the following Order is entered.

IT IS ORDERED that the hearing set for September 24, 2013, is CONTINUED and reschedueld for Monday, October 21, 2013, at 10:00 a.m. One hour has been allotted for the hearing.

CLERK TO FURNISH COPIES TO: Counsel of Record Pro Se Parties

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E-FILED 2013 SEP 23 11:47 AM SAC - CLERK OF DISTRICT COURT

State of Iowa Courts Case Number EQCV019458 Type: Case Title JOHN DRILLING VS. HENRY HORST OTHER ORDER So Ordered

Electronically signed on 2013-09-23 11:47:29

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E-FILED 2013 SEP 25 10:56 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 OCT 02 8:34 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 OCT 02 8:34 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 OCT 02 8:34 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 OCT 18 11:25 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 OCT 18 11:25 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 OCT 18 11:25 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 OCT 18 11:25 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 OCT 18 3:14 PM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 OCT 18 3:14 PM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 OCT 21 8:41 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 OCT 21 8:41 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 OCT 21 9:55 AM SAC - CLERK OF DISTRICT COURT

IOWA DISTRICT COURT FOR SAC COUNTY JOHN DRILLING, Plaintiff, vs. HENRY HORST, D f n!ant. +++++++++++++++++++++++++++++++++++++++++++++ HENRY HORST, T-i,!+Pa,t. Plaintiff, $s. DENNIS WER/0EISTER an! ERIN E. 01CULLOUGH, !232a LAW OFFICES OF ERIN E. 01CULLOUGH, T-i,!+Pa,t. D f n!ants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

N". E#C$%&'()* O,! ,

T- 1a4ti"n ! 5att , 6as s t f", - a,in7 "n t-is !at . C"8ns l N 44 , -as fil ! a 0"ti"n f", C"ntin8an1 . T- C"8,t is inf",5 ! 3. att",n . Ja5 s $an D.9 t-at n 1 ssa,. 4a,ti s -av n"t 3 n s ,v ! in a11",!an1 6itstat8t . As a 1"ns :8 n1 , t-is 5att , s-all 3 1"ntin8 !. IT IS THEREFORE ORDERED t-at - a,in7 is 1"ntin8 ! t" December 2, 2013 at 11:00 a.m.
Clerk to forward copies to: Allen Nepper James R. Van Dyke

E-FILED 2013 OCT 21 9:55 AM SAC - CLERK OF DISTRICT COURT

State of Iowa Courts Type: Case Number EQCV019458 OTHER ORDER Case Title JOHN DRILLING VS. HENRY HORST So Ordered

Electronically signed on 2013-10-21 09:55:00

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E-FILED 2013 NOV 08 10:30 AM SAC - CLERK OF DISTRICT COURT

Notice Id: 2CA004

IN THE IOWA DISTRICT COURT FOR SAC COUNTY

JOHN R DRILLING , Plaintiff / Petitioner, vs. HENRY HORST , Defendant / Respondent. Notice of Trial Setting Conference Case No: 02811 EQCV019458

A scheduling conference will be held on 11/21/13 at 10:30 AM with Kellie Orres, as District Court Designee, pursuant to I.R.C.P 1.602. This conference shall be conducted by telephone conference call initiated by plaintiff's counsel. Kellie Orres may be contacted via telephone at: (515) 574-3752. 1. PARTICIPATION: All attorneys appearing in the case shall participate in this conference. A party who is not represented by counsel shall contact the Court Administrator's office (at the above phone number) prior to the date and time of the conference call. 2. TRIAL SCHEDULING: A firm trial date shall be established in accordance with the Supreme Court's time standards as provided by Chapter 23, Iowa Court Rules. NO CONTINUANCES SHALL BE GRANTED EXCEPT BY COURT ORDER, UPON GOOD CAUSE SHOWN. 3. SANCTIONS: If a party or attorney fails to participate in the scheduling conference or is substantially unprepared to participate in the conference, the Court may impose appropriate sanctions, including reasonable expenses and attorney fees. (I.R.C.P 1.602(5)). /s/ Kellie Orres --------------------------------------Designee of the Court Clerk to provide copies or notice of document to attorneys of record and parties appearing pro se.

E-FILED 2013 NOV 08 10:30 AM SAC - CLERK OF DISTRICT COURT

Notice Id: 2CA004

IN THE IOWA DISTRICT COURT FOR SAC COUNTY

JOHN R DRILLING , Plaintiff / Petitioner, vs. HENRY HORST , Defendant / Respondent. Notice of Trial Setting Conference Case No: 02811 EQCV019458

A scheduling conference will be held on 11/21/13 at 10:30 AM with Kellie Orres, as District Court Designee, pursuant to I.R.C.P 1.602. This conference shall be conducted by telephone conference call initiated by plaintiff's counsel. Kellie Orres may be contacted via telephone at: (515) 574-3752. 1. PARTICIPATION: All attorneys appearing in the case shall participate in this conference. A party who is not represented by counsel shall contact the Court Administrator's office (at the above phone number) prior to the date and time of the conference call. 2. TRIAL SCHEDULING: A firm trial date shall be established in accordance with the Supreme Court's time standards as provided by Chapter 23, Iowa Court Rules. NO CONTINUANCES SHALL BE GRANTED EXCEPT BY COURT ORDER, UPON GOOD CAUSE SHOWN. 3. SANCTIONS: If a party or attorney fails to participate in the scheduling conference or is substantially unprepared to participate in the conference, the Court may impose appropriate sanctions, including reasonable expenses and attorney fees. (I.R.C.P 1.602(5)). /s/ Kellie Orres --------------------------------------Designee of the Court Clerk to provide copies or notice of document to attorneys of record and parties appearing pro se.

E-FILED 2013 NOV 08 12:20 PM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 NOV 08 12:21 PM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 NOV 20 3:39 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY JOHN DRILLING, Plaintiff, vs. HENRY HORST, Defendant. __________________________________ HENRY HORST, Third-party Plaintiff, vs. DENNIS WERKMEISTER and ERIN E. McCULLOUGH, d/b/a LAW OFFICES OF ERIN E. McCULLOUGH, Third-party Defendants. MOTION TO DISMISS No. EQCV019458

COME NOW the Third-party Defendants, Dennis Werkmeister and Erin E. McCullough d/b/a The Law Offices of Erin E. McCullough, and in support of the above-captioned motion state as follows: 1. On August 27, 2013, the Plaintiff, John Drilling, filed a petition in equity against Henry Horst, seeking a temporary and permanent injunction enjoining Horst from constructing a common-fence on his property pursuant to a building permit issued by the Lake View City Council. 2. Horst responded by filing an answer denying the allegations of the petition and by filing a cross-petition against Werkmeister and McCullough seeking indemnification from them. 3. The cross-petition fails to state a claim upon which any relief may be granted. See Iowa R. Civ. P. 1.421(1)(f); McNally & Nimergood v. Neumann-Kiewit Constructors, Inc., 648 N.W.2d 564, 570 (Iowa 2002) (In the absence of a duty imposed by law to indemnify another, there is no right to indemnification unless derived from a contract.). 4. Werkmeister and McCullough request the Court to set this matter for hearing and upon hearing, grant their motion and dismiss the cross-petition. WHEREFORE the Third-party Defendants request the Court to set this matter for hearing and upon hearing, grant their motion and dismiss the cross-petition and for such other and further relief as the Court deems just and equitable in the premises.

E-FILED 2013 NOV 20 3:39 PM SAC - CLERK OF DISTRICT COURT

/s/ Gina C. Badding Gina C. Badding AT0000499 for NEU, MINNICH, COMITO & NEU, P.C. 721 N. Main Street P.O. Box 367 Carroll, Iowa 51401 (712) 792-3508 (712) 792-3563 (fax) gina@nmcnlaw.com ATTORNEYS FOR THIRD-PARTY DEFENDANTS

CERTIFICATE OF SERVICE I hereby certify that on November 20, 2013, I electronically filed the foregoing with the Clerk of Court using the EDMS system, which will send notification of such filing to the following: Allen Nepper James R. Van Dyke

/s/ Gina C. Badding Gina C. Badding

E-FILED 2013 NOV 20 4:02 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY JOHN DRILLING, Plaintiff, vs. HENRY HORST, Defendant. __________________________________ HENRY HORST, Third-party Plaintiff, vs. DENNIS WERKMEISTER and ERIN E. McCULLOUGH, d/b/a LAW OFFICES OF ERIN E. McCULLOUGH, Third-party Defendants. APPEARANCE No. EQCV019458

COMES NOW, Gina C. Badding for NEU, MINNICH, COMITO & NEU, P.C. and enters the firms appearance for the Third-party Defendants, Dennis Werkmeister and Erin E. McCullough d/b/a The Law Offices of Erin E. McCullough, in the above-titled case.

/s/ Gina C. Badding Gina C. Badding AT0000499 for NEU, MINNICH, COMITO & NEU, P.C. 721 N. Main Street P.O. Box 367 Carroll, Iowa 51401 (712) 792-3508 (712) 792-3563 (fax) gina@nmcnlaw.com ATTORNEYS FOR THIRD-PARTY DEFENDANTS

E-FILED 2013 NOV 20 4:02 PM SAC - CLERK OF DISTRICT COURT

CERTIFICATE OF SERVICE I hereby certify that on November 20, 2013, I electronically filed the foregoing with the Clerk of Court using the EDMS system, which will send notification of such filing to the following: Allen Nepper James R. Van Dyke

/s/ Gina C. Badding Gina C. Badding

E-FILED 2013 NOV 21 11:28 AM SAC - CLERK OF DISTRICT COURT

Notice Id: 2CA101

IOWA DISTRICT COURT FOR SAC COUNTY

JOHN R DRILLING , Plaintiff / Petitioner, vs. HENRY HORST , Defendant / Respondent. Case No: 02811 EQCV019458 Trial Notice

The above entitled matter is hereby scheduled for non-jury trial on 05/07/14 at 09:00 AM . 1 Day Injunction Discovery Due 60 days prior to trial

/s/ Kellie Orres ----------------------------------Designee of the Court

Clerk to provide copies or notice of this document to attorneys of record, parties appearing pro se and judge if assigned

Docket Code = OSTR

E-FILED 2013 NOV 21 2:35 PM SAC - CLERK OF DISTRICT COURT

Notice ID: 2RCV31

IN THE IOWA DISTRICT COURT FOR SAC COUNTY

JOHN R DRILLING , Plaintiff, vs. HENRY HORST , Defendant.

Case No. 02811 EQCV019458

ORDER SETTING HEARING

The Third Party Defendants have filed a Motion to Dismiss. A hearing will now be scheduled.

IT IS, THEREFORE, THE ORDER OF THE COURT as follows: 1. A Hearing is scheduled on 12/02/2013 at 11:00 AM at the Sac Co. Courthouse, 100 NW State St., Sac City, Iowa.

If you need assistance to participate in court due to a disability, call the disability coordinator at 641-421-0990. Persons who are hearing or speech impaired may call Relay Iowa TTY (1-800-735-2942). Disablity coordinators cannot provide legal advice.

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E-FILED 2013 NOV 21 2:35 PM SAC - CLERK OF DISTRICT COURT

State of Iowa Courts Case Number EQCV019458 Type: Case Title JOHN DRILLING VS. HENRY HORST ORDER SETTING HEARING So Ordered

Electronically signed on 2013-11-21 14:35:18

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E-FILED 2013 NOV 29 12:41 PM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 NOV 29 12:41 PM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 NOV 29 12:41 PM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 DEC 02 11:16 AM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY JOHN DRILLING, Plaintiff, vs. HENRY HORST, Defendant. __________________________________ HENRY HORST, Third-party Plaintiff, vs. DENNIS WERKMEISTER and ERIN E. McCULLOUGH, d/b/a LAW OFFICES OF ERIN E. McCULLOUGH, Third-party Defendants. REPLY TO RESISTANCE TO MOTION TO DISMISS No. EQCV019458

COME NOW the Third-party Defendants, Dennis Werkmeister and Erin E. McCullough d/b/a The Law Offices of Erin E. McCullough, and in reply to the Third-party Plaintiffs Resistance to their Motion to Dismiss state as follows: 1. Henry Horst, the Third-party Plaintiff, characterizes his action against Werkmeister and McCullough as one for equitable indemnification and argues if Drilling has a claim for relief against Horst, then Horst has a claim for relief against Werkmeister and/or McCullough. 2. It is true that indemnification, as a form of restitution, can be implied by law in tort claims to shift liability for an obligation to the party who should bear ultimate responsibility for it under principles of equity, or it can be based on contract. McNally & Nimbergood v. Neumann-Kiewit Constructors, Inc., 648 N.W.2d 564, 570 (Iowa 2002) (emphasis added). Horst has not alleged a tort claim against Werkmeister and McCullough. 3. Setting aside Horsts failure to allege a tort claim as the basis for his equitable indemnification action against Werkmeister and McCullough, Horst has also failed to allege any set of facts establishing that Werkmeister and McCullough owed him a duty of indemnification. Id. (In the absence of a duty imposed by law to indemnify another , there is no right to indemnification unless derived from a contract.) (emphasis added). [A]n essential element in establishing a right to indemnity is that the party asserting indemnity was legally obligated to discharge the obligation for which the party seeks indemnity. Henning v. Security Bank, 564 N.W.2d 398, 401 (Iowa 1997).

E-FILED 2013 DEC 02 11:16 AM SAC - CLERK OF DISTRICT COURT

4. Our courts have never applied equitable indemnity based on notions of simple fairness, as Horst seems to be alleging should be done in this case. Wells Dairy, Inc. v. Am. Indus. Refrigerations, Inc., 762 N.W.2d 463, 471 (Iowa 2009) (noting the application of equitable indemnity based on that ground have been subject to considerable academic debate and criticized by it in past cases); see also Woodruff Constr. Co. v. Barrick Roofers, Inc., 406 N.W.2d 783, 786 (discussing this criticism and refusing to apply equitable indemnity based on concepts of fairness). WHEREFORE the Third-party Defendants request the Court to grant their motion to dismiss the cross-petition and for such other and further relief as the Court deems just and equitable in the premises.

/s/ Gina C. Badding Gina C. Badding AT0000499 for NEU, MINNICH, COMITO & NEU, P.C. 721 N. Main Street P.O. Box 367 Carroll, Iowa 51401 (712) 792-3508 (712) 792-3563 (fax) gina@nmcnlaw.com ATTORNEYS FOR THIRD-PARTY DEFENDANTS

CERTIFICATE OF SERVICE I hereby certify that on December 2, 2013, I electronically filed the foregoing with the Clerk of Court using the EDMS system, which will send notification of such filing to the following: Allen Nepper James R. Van Dyke

/s/ Gina C. Badding Gina C. Badding

E-FILED 2013 DEC 02 2:06 PM SAC - CLERK OF DISTRICT COURT

2RCV12 IN THE IOWA DISTRICT COURT FOR SAC COUNTY JOHN R DRILLING , Plaintiff, vs. HENRY HORST , Defendant. COURT REPORTER MEMORANDUM AND CERTIFICATE Case No. 02811 EQCV019458

COURT REPORTER MEMORANDUM (The court reporter shall file this memorandum with the district court clerk.) Appearances: For Plaintiff/Petitioner: Alan Nepper For Defendant/Respondent: James Van Dyke Other: Gina Badding Information required by Iowa Rule of Civil Procedure 1.903(3): I, Tara Gibson, am providing the following information as required by Iowa Rule of Civil Procedure 1.903(3): 1. The type of proceeding that was reported: Injunction 2. The date(s) on which the proceeding occurred: December 2, 2013 3. The name of the court reporter who reported the proceeding: Tara Gibson 4. The name of the judge who presided over the proceeding: Gary McMinimee 5. The reporting fee for the proceeding: $40.00 6. We, the undersigned judge before whom the above-entitled case was tried, and the official court reporter who, by order of the Court, reported the same, do hereby certify that the above and foregoing is the report of the whole proceedings upon the trial and/or hearing of the above-entitled cause made and taken pursuant to the order and direction of the Court, in accordance with Iowa Code Section 624.10. /s/Tara Gibson _________________________________________
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E-FILED 2013 DEC 02 2:06 PM SAC - CLERK OF DISTRICT COURT

State of Iowa Courts Case Number EQCV019458 Type: Case Title JOHN DRILLING VS. HENRY HORST COURT REPORTER MEMORANDUM AND CERTIFICATE So Ordered

Electronically signed on 2013-12-02 14:06:09

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E-FILED 2013 DEC 16 1:33 PM SAC - CLERK OF DISTRICT COURT

IOWA DISTRICT COURT FOR SAC COUNTY

JOHN R DRILLING , Plaintiff, vs. HENRY HORST ,

Case No: 02811 EQCV019458 EXHIBIT LIST Hearing December 2, 2013 Presiding Judge: Gary McMinimee

Defendant.

The following exhibits were offered and admitted by the Court at the hearing as shown above: Plaintiff's Exhibits 1. Photo 2. Photo 3. Canceled check 4. Council agenda 5. Fences, walls and vision clearance 6. Permit application 7. Permit application 8. Description of land 9. Judgment entry and decree 10. Platt of Drillng's North Shore Second Addition 11. Photo 12. Warranty deed 13. Photo 14. Photo 15. Photo 16. Photo 17. Photo 18. Aerial view

Defendant's Exhibits A.
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E-FILED 2013 DEC 16 1:33 PM SAC - CLERK OF DISTRICT COURT

B. C. Council agenda D. E. F. Defendant's affidavit in resistance to request for injunction G. Aerial view of land H. Photo I. CD

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E-FILED 2013 DEC 16 1:33 PM SAC - CLERK OF DISTRICT COURT

State of Iowa Courts Case Number EQCV019458 Type: Case Title JOHN DRILLING VS. HENRY HORST EXHIBIT LIST So Ordered

Electronically signed on 2013-12-16 13:33:34

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