In the Matter of Sanger, 01-1564

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Court of Appeals of IowaAug 14, 2002
No. 2-617 / 01-1564. (Iowa Ct. App. Aug. 14, 2002)

No. 2-617 / 01-1564.

Filed August 14, 2002.

Appeal from the Iowa District Court for Dallas County, JERROLD W. JORDAN, Judge.

Claimant appeals from the district court's denial of a motion requesting it to order the county to pay towing and storage costs on a vehicle which had been seized and subsequently ordered to be returned to him. REVERSED.

Robert Nading, II of Nading Law Firm, Ankeny, for appellant.

Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, Wayne Reisetter, County Attorney, and Sean Weiser, Assistant County Attorney, for appellee.

Considered by SACKETT, C.J., and VOGEL and MAHAN, JJ.

Is the State responsible for a storage and towing lien on property it seized where its claim for forfeiture of the property was denied? Appellant, James Matthew Sangers, whose 1997 Chevrolet Suburban was seized on February 17, 2000 by the Dallas County sheriff's office, towed and stored, claims the State is responsible for those charges. The district court disagreed with appellant and this appeal follows. We reverse.

The facts are basically undisputed. On February 17, 2000, the Suburban was found at a home where methamphetamine had just been manufactured. It was seized, towed, and placed in storage. On March 3, 2000, Sanger, in response to a "Notice of Seizure for Forfeiture," filed a claim stating he owned the Suburban and there was no legal basis for forfeiting it. On March 21, 2000, the State filed an in rem forfeiture complaint alleging the Suburban was used to transport items used in the manufacturing of methamphetamine. Sanger answered the State's complaint on May 3, 2000, and denied the allegation. He asked that the Suburban be returned to him and that the State be taxed with the costs of towing and storage. On August 27, 2002, after hearing the evidence, the district court denied the State's petition to forfeit and ordered the Suburban returned.

The district court found no physical evidence the Suburban was used in the manufacture nor could the court confirm there was evidence that it would be used to transport the waste products of methamphetamine. The court found the only contact between the Suburban and the manufacturing was testimony of the odor of anhydrous ammonia, but determined that the record did not indicate any odor of ammonia emanating from the Suburban, finding there was ammonia present in the atmosphere from another source. The court denied the State's in rem complaint and ordered the Suburban returned. After the hearing, Sanger's attorney indicated there was a substantial storage and towing bill, apparently over $4,000, and asked the court to order it be paid. The State's attorney responded that typically storage bills have gone back to claimants even if they get the property back. The judge said he was not in the courthouse and did not have research available, but he was going to let each side check on procedures. He would not address the issue until it came back to him if the parties could not agree.

The county agreed to release the Suburban to the appellant but refused to pay the towing and storage charges. Appellant filed a motion asking the district court to order the county to pay the towing and storage costs. The district court, without stating its reason for doing so, denied the motion.

Appellant contends on appeal the costs should be paid by the State or Dallas County. He argues that (1) the State could have put a lien on the Suburban rather than storing it; (2) he also contends that unless the State pays the storage fees the Suburban will not be returned to him as ordered by the district court.

The State contends this argument was not preserved for appellate review, contending appellant failed to show the argument now made was made before the district court. Issues must ordinarily be both raised and decided by the district court before we will decide them on appeal. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002); Metz v. Amoco Oil Co., 581 N.W.2d 597, 600 (Iowa 1998); Peters v. Burlington N. R.R., 492 N.W.2d 399, 401 (Iowa 1992).

The State concedes and the record reflects appellant asked that he not be required to pay towing and storage charges at the forfeiture hearing, and the district court told the parties it would consider the issue at a later time. The issue was raised in the motion the district court denied. The State points out this hearing was not reported, and appears to argue the failure to report the hearing precludes us from addressing the issue. We disagree and find error was preserved.

Forfeiture proceedings are reviewed for errors at law. In re Property Seized from DeCamp, 511 N.W.2d 616, 619 (Iowa 1994).

The State contends that the district court correctly denied appellant's claim under Iowa Code section 809A.16(8), which provides in applicable part:

8. Upon motion by the prosecuting attorney, if it appears after a hearing that reasonable cause existed for the seizure for forfeiture or for the filing of the notice of pending forfeiture or complaint, the court shall find all of the following:

a. That reasonable cause existed, or that the action was taken under a reasonable good faith belief that it was proper.

b. That the claimant is not entitled to costs or damages.

c. That the person or seizing agency who made the seizure and the prosecuting attorney are not liable to suit or judgment for the seizure, suit, or prosecution.

Iowa Code § 809A.16(8) (2001).

We disagree with the State's position that section 809A.16(8) is applicable to the issue here. The prosecuting attorney never sought to utilize the procedure, which required the filing of a motion on the State's behalf. Nor did the district court indicate in any order a ruling on a motion filed under section 809A.16(8). The district court did not make the specific findings required by the section. Nor did the district court, in ordering the Suburban returned, make any findings that could be construed as a finding that probable cause existed for the seizure. We recognize that this court will affirm a district court for any reason appearing in the record, if urged in the district court. . DeVoss v. State, ____N.W.2d ___, ___ (Iowa 2002); see e.g., Interstate Power Co. v. Ins. Co. of N. Am., 603 N.W.2d 751, 756-58 (Iowa 1999) (upholding summary judgment ruling based on lack of timely notice required under insurance policy, a ground urged in the district court but not relied on by that court); Iowa Tel. Ass'n v. City of Hawarden, 589 N.W.2d 245, 252-256 (Iowa 1999) (upholding summary judgment ruling based on statute urged in the district court but not relied on by that court. However, we do not interpret this rule to allow us to affirm on the basis of a procedure that the State could utilize but did not. For the section to be considered on appeal, the record must at least reveal the district court was aware of the claim or issue and litigated it. Meier, 641 N.W.2d at 540; Linge v. Ralston Purina Co., 293 N.W.2d 191, 195-96 (Iowa 1980). The record does not reflect the district court was aware the State was making the claim it now makes on appeal, nor is there any evidence the district court litigated it. Consequently, we do not address the issue of whether towing and storage fees are damages such as would not be recoverable if the prosecutor had filed a motion under section 809A.16(8) and the district court had found that reasonable cause existed for the seizure for forfeiture.

The only question is whether the order to return required that the vehicle be returned without liens and encumbrances incurred by the State. We believe, under the facts in this case, the Suburban should be returned unencumbered by the storage and towing liens, and the State should be required to do that which is necessary to see that is accomplished.


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