Claim Link, June
IN THE IOWA DISTRICT COURT FOR DUBUQUE COUNTY
JUNE LINK (MRS. JOSEPH F. LINK),
MARILYN M. WING, WILLIAM ADAM
LINK, RAYMOND J. WALDBILLIG,
JAMES WALDBILLIG, JR., JEFF
W ALDBILLIG, LAURI W ALDBILLIG,
JOHN ARTHUR LINK, STEVEN PATRICK
LINK, MICHELLE LYNN LINK, RICHARD
JOHN LINK and MICHAEL STEVEN
LINK,
Plaintiffs,
Equity No. 01311 EQCV095785
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vs.
SHEILA J. LINK, MULGREW OIL CO.,
CREDIGY RECEIVABLES, INC.,
HOUSEHOLD FINANCE CORPORATION,
LAMAR ADVERTISING CO., LLC.,
FRANK HARDIE ADVERTISING, INC.,
CITY OF DUBUQUE, and UNKNOWN
CLAIMANTS OR PARTIES IN
POSSESSION,
DECREE OF PARTITION
AND FOR APPOINTMENT
OF REFEREE FOR SALE
Defendants.
NOW on the 31 of October, 2006 this matter came before the court on the Motion for
Summary Judgment filed by the plaintiffs, above-named, pursuant to LR.C.P. 1.981; the
plaintiffs appear by their Attorney, Stephen P. Wing, the defendants do not appear, nor does
anyone appear on their behalf; the Court, having reviewed the file, the motion and the supporting
documents filed by Plaintiff, and finding no resistance filed by any party or their attorneys,
FINDS as follows:
FINDINGS OF FACT
1. The Plaintiff filed and served a Petition for Partition in the above-capti9P-ed
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matter on or about April 24, 2006.
2. Defendant-owner Sheila J. Link has entered her appearance and consented to the
partition by document filed June 5, 2006.
3. Defendant Mulgrew Oil Co. Accepted service and the acceptance of service is on
file with the court; said Defendant has not filed an answer or other motion or pleading and by
operation of Rule 1.405(3) is deemed to have admitted every fact pleaded in the Petition.
4. Defendant Credigy Receivables, Inc. was lawfully served and the return of service
is on file with the court; said Defendant has not filed an answer or other motion or pleading and
by operation of Rule 1.405(3) is deemed to have admitted every fact pleaded in the Petition.
5. Defendant Household Finance Corporation was lawfully served and the return of
service is on file with the court; said Defendant has not filed an answer or other motion or
pleading and by operation of Rule 1.405(3) is deemed to have admitted every fact pleaded in the
Petition.
6. Defendant Lamar Advertising Co. LLC was lawfully served and the return of
service is on file with the court; said Defendant has not filed an answer or other motion or
pleading and by operation of Rule 1.405(3) is deemed to have admitted every fact pleaded in the
Petition.
7. Defendant Franke Hardie Advertising, Inc. was lawfully served on May 8,2006,
and the return of service is on file with the court; said Defendant has not filed an answer or other
motion or pleading and by operation of Rule 1.405(3) is deemed to have admitted every fact
pleaded in the Petition.
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8. Defendant City of Dubuque was lawfully served on May 5, 2006, and the return of
service is on file with the court; said Defendant has not filed an answer or other motion or
pleading and by operation of Rule 1.405(3) is deemed to have admitted every fact pleaded in the
Petition.
9. Defendant Mulgrew Oil Company was determined to be the party in possession
and accepted service as noted above.
10. The Plaintiffs have made diligent search and been unable to identify any other
claimants or parties in possession and believe that all necessary parties are properly before the
court and the court has jurisdiction over the subject matter and parties.
II. Notice for service on unknown parties has been published and proof of
publication is on file with the court.
12. None ofthe Defendants has a defense to the allegations set forth in the Petition for
Partition.
13. Attached to the Motion for Summary Judgment and incorporated by reference is
an affidavit as to the results of examination of the title which establishes the various ownership
interests of the parties.
14. The parties are the record title owners of the following described real estate
situated in Dubuque County, Iowa, to-wit:
Lot I of the South 150 feet of the East 300 feet of the West 430 feet of Lot 2 of2,
located in the Southeast ~ of the Southeast ~ in Section 21, Township 89 North,
Range 2 East of the 5th P.M. in the City of Dubuque, Iowa according to the
recorded plat thereof, also described as:
Lot I of the North 150 feet ofthe South 183 feet of the East 300 feet ofthe West
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430 feet of Lot 2 of2, located in the SE Ii of the SE Ii in Section 21, Township
89 North, Range 2 East of the 5th P.M. in the City of Dubuque, Iowa according to
the Plat recorded in Instrument #598-80.
with the following interests:
William Link
Sheila Link
Raymond J. Waldbillig
Lauri Waldbillig
James Waldbillig, Jr.
JeffWaldbillig
Marilyn Wing
John A. Link
Steven P. Link
Michelle L. Link
Richard J. Link
Michael S. Link
Mrs. Joseph (June) F. Link
TOTAL of all shares
an undivided 1/6
an undivided 1/6
an undivided 1/24
an undivided 1/24
an undivided 1/24
an undivided 1/24
an undivided 1/6
an undivided 1/30
an undivided 1/30
an undivided 1/30
an undivided 1/30
an undivided 1/30
an undivided 1/6
100%
15. The Plaintiffs are entitled to Partition as fractional owners of the real estate,
as shown by the Petition and the affidavit filed in support of the Motion for Summary
Judgment.
16. There is no genuine issue as to any material fact and the Plaintiffs are entitled
to judgment as a matter oflaw.
17. The Plaintiffs have requested the court fix the amount of attorney fees as
required by law and allow them as costs of the action payable prior to any distribution to the
owners ofthe real estate being partitioned, and the attorney for the Plaintiffs shall submit an
itemization and request for attorney fees and costs following the completion of the sale of
the subject real estate and the court agrees to delay in fixing the amount of attorney fees as
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required by law and but upon submission and following appropriate notice and opportunity
for hearing, allow them as costs of the action payable prior to any distribution to the owners
of the real estate being partitioned.
18. The Plaintiffs are is entitled to the entry of judgment for partition, the
appointment of a referee to take and sell the property by private or public sale pursuant to
rules 1.1218 - 1.1222 and be authorized to sell the real estate to the highest bidder free and
clear of all liens pursuant to rule 1.1212.
CONCLUSIONS OF LAW
Motion for summary judgment is proper when there are no genuine issues of material
fact and the party is entitled to judgment as a matter oflaw. LR.C.P. 1.981. In this case, the
court file establishes that the defendants have been duly served with Original Notice and the
Petition, Defendant Sheila Link has filed an appearance and consent to partition, but the
other defendants have failed file an answer, appearance or file any other pleading. Each of
these parties is in default. LR.C.P. 1.971. No affidavit which would demonstrate any
material factual dispute has been filed. LR.C.P. 1.981 (3).
The affidavit filed in support of the motion for summary judgment further establishes
the facts of the case. This affidavit is based upon the personal knowledge of the affiant and
must be met with a contrary affidavit to establish a factual dispute. LR.C.P. 1.981(5).
A "genuine" issue of material fact exists if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party. Fees v. Mutual Fire & Auto. Ins. Co., 490
N.W.2d 55,57 (Iowa 1992). A fact is "material" only when its determination might affect
the outcome of the suit. Id. The court must view the facts in the light most favorable to the
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party opposing the motion for summary judgment. Gerst v. Marshall, 549 N.W.2d 810,
811-12 (Iowa 1996) If reasonable minds could draw different inferences and reach different
conclusions based on these facts, then summary judgment is inappropriate. Walker Shoe
Store. Inc. v. Howard's Hobbv Shop, 327 N.W.2d 725, 728 (Iowa 1982).
In the case before the court there are no factual disputes, the evidence of the
ownership and fractional shares of each of the 13 owners in the real estate is clear and
uncontested. Pursuant to LR.C.P. 1.1201(2) the property shall be partitioned by sale and
division of the proceeds, unless a party prays for partition in kind by its division into parcels,
and shows that such partition is equitable and practicable. In this case the partition is a
commercial lot, but partition in kind is neither equitable or practicable. Id. Where all the
parties are before the court in a partition proceeding, equity has jurisdiction to adjudicate all
matters and rights of the respective parties. In re Delanev's Guardianship, 227 Iowa 1173,
290 NW. 530 (1940).
DECREE OF PARTITION
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that judgment for
partition is granted to the Plaintiffs, above-named, and against all of the Defendants herein
and that the property should be sold as provided by law in partition actions; and that the
ownership interests are established as follows:
William Link
Sheila Link
Raymond J. Waldbillig
Lauri Waldbillig
James Waldbillig, Jr.
JeffWaldbillig
Marilyn Wing
an undivided 1/6
an undivided 1/6
an undivided 1/24
an undivided 1/24
an undivided 1/24
an undivided 1/24
an undivided 1/6
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John A. Link
Steven P. Link
Michelle L. Link
Richard J. Link
Michael S. Link
Mrs. Joseph (June) F. Link
an undivided 1/30
an undivided 1/30
an undivided 1/30
an undivided 1/30
an undivided 1/30
an undivided 1/6
TOTAL of all shares
100%
interest of the following described real estate situated in Dubuque County, Iowa, to-wit:
Lot 1 of the South 150 feet of the East 300 feet of the West 430 feet of Lot 2 of2,
located in the Southeast 1.0 of the Southeast 1.0 in Section 21, Township 89 North,
Range 2 East of the 5th P.M. in the City of Dubuque, Iowa according to the
recorded plat thereof, also described as:
Lot 1 of the North 150 feet of the South 183 feet of the East 300 feet of the West
430 feet of Lot 2 of2, located in the SE 1.0 of the SE 1.0 in Section 21, Township
89 North, Range 2 East of the 5th P.M. in the City of Dubuque, Iowa according to
the Plat recorded in Instrument #598-80.
Locally known as: 3355 Pennsylvania or 1701 JFK Drive, Dubuque, Iowa
and distribution of net proceeds available following sale shall be divided accordingly, after
determination and allowance of claims, attorneys fees, referees fees and costs of this action.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Lauri Waldbillig: IS
hereby appointed as referee to take and sell the property by private or public sale pursuant to
rules 1.1218 - 1.1222 and be authorized to sell the real estate to the highest bidder free and clear
of all liens pursuant to rule 1.1212 and that the referee is authorized to use the attorney for
Plaintiffs in conjunction with the sale.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that if the referee has all
funds handled through the Plaintiff's attorney trust account, no bond shall be required.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that determination of
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attorney fees and costs to be allowed to the Plaintiff is withheld until after the completion of the
sale by the referee, receipt of the referee's report of sale and in conjunction with the final report
and approval of same.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the court retains
jurisdiction of this matter to deal with any issues that arise in conjunction with the sale, as to the
approval of fees and costs after sale, as the any contest as to priority of claims made against the
sales proceeds by junior claimants and for the distribution of any remaining funds by the Clerk of
Court following sale and disposition of all claims.
The Clerk shall mail notice to all counsel of record and parties not in default.
:21
V
Dated at Dubuque, Iowa, this
day of October, 2006.
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