Opinion
No. 3-832 / 02-1763.
Filed December 24, 2003.
Appeal from the Iowa District Court for Keokuk County, Richard J. Vogel, Judge.
The City of Kinross appeals from the district court denial of the city's motion to dismiss. REVERSED AND REMANDED.
Robert W. Goodwin of Goodwin Law Office, P.C., Ames, for appellant.
Wallace L. Taylor, Cedar Rapids, for appellees.
Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
The City of Kinross appeals from the district court denial of the city's motion to dismiss. We reverse and remand to the district court for dismissal.
Background Facts and Proceedings.
Pursuant to Iowa Code chapter 6B (2001), the City of Kinross condemned a portion of property belonging to Marlowe and Iona Seitsinger for a wastewater sewer project. The compensation committee determined that the Seitsingers' damages were $21,500.00 and their tenant's damages were $100.00. On June 19, 2002, the Keokuk County Sheriff mailed the Seitsingers a notice of appraisement of damages and time for appeal.
On July 19, 2002, the Seitsingers filed a notice of appeal with the Keokuk County clerk of court. An attached certificate of service indicated they had served notice upon each of the parties by mail on July 17, 2002. The Seitsingers filed a petition on appeal from condemnation award and demand for jury trial on August 7, 2002. On August 21, 2002, the city filed a motion to dismiss alleging the Seitsingers had failed to properly serve notice of their appeal upon the city. In the Seitsingers' resistance to the motion to dismiss, they notified the court that they had personally served the city with notice of their appeal on August 21, 2002. The district court denied the city's motion to dismiss. The city then filed a motion to enlarge, which was also denied. The city filed an application for permission to appeal in advance of final judgment which was granted by the supreme court.
Standard of Review.
We review a district court's failure to dismiss a condemnation appeal action for errors at law. Schooler v. Iowa Dept. of Transp., 576 N.W.2d 604, 605 (Iowa 1998).
Iowa Code Chapter 6B (2001).
Iowa Code section 6B.18 (2001) provides:
After the appraisement of damages has been delivered to the sheriff by the compensation commission, the sheriff shall give written notice . . . that any interested party may, within thirty days from the date of mailing the notice of appraisement of damages, appeal to the district court. The sheriff shall endorse the date of mailing of notice upon the original appraisement of damages. At the time of appeal, the appellant shall give written notice that the appeal has been taken to the adverse party, or the adverse party's agent or attorney, lienholders, and the sheriff.
Iowa Code subsection 6B.19(1) clarifies that "[s]uch notice of appeal shall be served in the same manner as an original notice." Iowa Rule of Civil Procedure 1.305 requires that original notices must be served by making personal service.
The Seitsingers argue that because section 6B.18 does not explicitly state that service must be made within thirty days of the mailing of the notice of appraisement, the proper interpretation of this statute is that notice must be served within a reasonable time after the notice of appeal is filed the district court. However, our supreme court has already considered and rejected this argument. See Wade Farms, Inc. v. City of Weldon, 419 N.W.2d 718, 721 (Iowa 1988). Anyone appealing from an appraisement of damages must personally serve their notice of appeal on the city and the sheriff within thirty days of the mailing of the notice of appraisement. Id. The Seitsingers' attempts at service clearly do not comply with the requirements of section 6B. Their first attempt at notice, although completed within thirty days of the notice of the appraisement of damages, was not served personally on the city. Their second attempt at notice, although served personally, was not completed within thirty days of the notice of appraisement of damages.
Amendment to Chapter 6B.
After the notice of appraisement was mailed, but before the Sietsingers' notice of appeal was filed or due, Iowa Code chapter 6B was amended. Effective July 1, 2002, section 6B.18 provides:
(1) . . . any interested party may, within thirty days from the date of the mailing of the notice of the appraisement of damages, appeal to the district court by filing notice of appeal with the district court of the county in which the real estate is located and by giving written notice to the sheriff that the appeal has been taken. The sheriff shall endorse the date of the mailing of notice upon the original appraisement of damages.
(2) An appeal of appraisement of damages is deemed to be perfected upon filing of a notice of appeal with the district court within thirty days from the date of mailing the notice of appraisement of damages. The notice of appeal shall be served on the adverse party, or the adverse party's agent or attorney, any lienholders and encumbrancers of the property in the same manner as an original notice within thirty days from the date of the filing the notice of appeal unless, for good cause shown, the court grants more than thirty days.
Section 6B.19 was repealed entirely.
The Seitsingers do not argue that the amended statute governs their case. Rather they argue the legislature amended chapter 6B in response to the supreme court's interpretation of the statute's notice requirements and intended to clarify the law, not change it.
The Seitsingers' argument is unconvincing for two reasons. First, we note that our supreme court has consistently interpreted this section to require an appellant to provide proper notice within thirty days of the mailing of the notice of appraisement since the late 1960's. See Harrington v. City of Keokuk, 141 N.W.2d 633, 637 (Iowa 1966) and Carmichael v. Iowa State Highway Comm'n, 156 N.W.2d 332, 338 (Iowa 1968). We find it unlikely the legislature took thirty-five years to clarify the statute.
Second, generally the fact that the legislature enacts an amendment indicates that it thereby intended to change the original act by creating a new right or withdrawing an existing one. State ex rel. Palmer v. Board of Supervisors, 365 N.W.2d 35, 37 (Iowa 1985). Therefore, any material change in the language of the original act is presumed to indicate a change in legal rights. Id. Thus, in interpreting an amendatory act there is a presumption of change in legal rights. Id. In this case, the amendment changes the requirement of personal service upon the sheriff to mere written notice and explicitly provides an additional thirty days after the notice of appeal is filed to serve the adverse parties with notice. Because these changes are material, we conclude the amendment constituted a change in the law, not a clarification. Thus the enactment of the amendment does not affect the interpretation of the statute in effect until July 1, 2002.
We note that even if we concluded the amendment was a clarification of the law or if the Seitsingers had argued and we agreed that the amended statute governed the procedural aspects of their appeal, the notice they gave the city did not comply with the requirements of the amended statute. Although the Seitsingers personally served the city with notice of their appeal on August 21, 2002, this service was not completed within thirty days of the filing of their notice of appeal on July 19, 2002. Although the amended statute allows the district court to grant, for good cause, an extension of the thirty-day-deadline, no argument of good cause has been made here or below.
Because the Seitsingers did not comply with the notice requirements of Iowa Code section 6B, we conclude the district court erred by denying the city's motion to dismiss. We reverse and remand to the district court for dismissal.
Service on Keokuk County Sheriff.
The city also argues the Seitsingers did not serve the Keokuk County sheriff with proper notice of their appeal as required by section 6B.18. Because of our disposition above, we do not need to address the merits of this issue.