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Sunday, May 1, 2016

City appeals Kolb decision

Thursday, January 5, 2006

Supreme Court ruling could take a year

The Storm Lake City Council has decided to appeal District Court Judge Vipond's decision in the Kolb Memorial Trust case, according to a statement released by the city Wednesday morning.

One of the attorneys for Norman Kolb said the appeal to the Iowa Supreme Court could take up to a year.

In a decision last fall, Judge Richard Vipond ruled that the Kolb Memorial Trust had failed and that Norman Kolb of Storm Lake could retain two 160-acre farms, the proceeds of which had previously been dedicated to maintenance of the Kolb Memorial flower gardens and fountain.

The city cleared the site in this fall to make way for the Project AWAYSIS lodge, after offering to relocate a memorial garden within the AWAYSIS lakefront development.

The decision by the city to appeal Judge Vipond's decision came after the Storm Lake City Council met with legal counsel in closed session Jan. 3.

Based on the legal advice, the council feels that a review of the pertinent issues by a panel of judges is in the city's best interest. City officials stated that the council feels a responsibility to maintain the trust and the gardens in perpetuity for the benefit of the citizens of Storm Lake and to honor Henry and Martha Kolb's original wishes.

The City's legal counsel anticipates the cost of an appeal to be approximately $10,000. City Administrator Patti Moore said $45,000 has been spent to date on legal fees in the case.

The Storm Lake City Council is sensitive to the costs involved in continuing litigation on this issue; however, they feel that this cost is warranted in order to protect the rights of the city and the original wishes of the trust.

"The city has elected to go this route on this appeal," said James Gailey, attorney for Norman Kolb. "All we can do is see what their arguments are and deal with it."

Gailey is co-counsel with Mark McCormick of Des Moines. Representing the city's interests are City Attorney Paul Havens and Ivan Webber, also an attorney from Des Moines.

Gailey said he did not believe that the Iowa Supreme Court would hear the case immediately, though.

"I can see it taking a year," Gailey said Wednesday. He said he saw no need for future co-counsel in addition to McCormick and himself.

Speaking for Kolb, said Gailey, "He was surprised and disappointed, with the memory of his folks and what they did for the community."

Throughout the course of the trial last fall in which the city sought to retain the farms, the city's attorneys argued a cy pres doctrine in which they asserted that by relocating the Kolb Memorial gardens and fountain to a similar location the city would still fulfill the original intentions of the trust and should continue to get the money.

Kolb's attorneys, on the other hand, argued that Henry and Martha Kolb, parents of Norman Kolb, had intended the fountain and flower garden, a memorial to their grandson Robert, killed in a hunting accident at age 18, be located perpetually in the specific chosen location.

As to the city's cy pres doctrine position, said Gailey, "I really think it was their argument."

"We think the judge decided the case incorrectly," said City Attorney Paul Havens Wednesday. Havens said he did not believe that Judge Vipond considered the city's cy pres doctrine argument.

"We also believe he (Vipond) did not consider the evidence the city put into the case," Havens said.

As to the city's position in the trial that Norman Kolb should no longer be considered as trustee, Havens said of Judge Vipond's decision, "He didn't get to the question as to whether Mr. Kolb should continue."

Havens also recalled the fact that Judge Vipond had called for both parties to present their closing arguments before the city had a chance to present all its evidence.

"The city did not put out some of the evidence that it had," Havens said.

Cy pres is the whole case," said Webber Wednesday. As to Judge Vipond's not addressing the issue of Norman Kolb's administration of the trust, said Webber, "He (Vipond) didn't need to address that since that's an open issue."

Webber said he believed that, despite the fact that Judge Vipond urged both sides to conclude the trial in one day, that the city had time to present its case.

"I think we got in what we needed to get in," Webber said.

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