James R. Deshaw and Ruth A. Deshaw v. Jones County, Iowa

IN THE COURT OF APPEALS OF IOWA

No. 14-0768
Filed December 10, 2014

JAMES R. DESHAW and RUTH
A. DESHAW,
Plaintiffs-Appellants,

vs.

JONES COUNTY, IOWA,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Jones County, Marsha A. Bergan,

Judge.

Landowners appeal the dismissal of their appeal of the condemnation

commission’s appraisement of damages. AFFIRMED.

John J. Hines of Dutton, Braun, Staack, Hellman, P.L.C., Waterloo, for

appellants.

Phillip W. Parsons, County Attorney, Anamosa, for appellee.

Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MCDONALD, J.

Jones County condemned approximately 16.5 acres of James and Ruth

DeShaws’ land for use in a road improvement project. The DeShaws appealed

the condemnation commission’s appraisement of damages to the district court,

contending the award was inadequate. On the county’s motion, the district court

dismissed the appeal as untimely filed pursuant to Iowa Code section 6B.18(2)

(2013). We review the district court’s ruling on a motion to dismiss a

condemnation appeal for correction of errors of law. See Wade Farms, Inc. v.

City of Weldon, 419 N.W.2d 718, 720 (Iowa 1988).

Iowa Code chapter 6B sets forth the procedure for the condemnation of

private property for public use. Iowa Code § 6B.1A. The Code provides that a

compensation commission shall assess the damages which the property owner

will sustain by reason of the appropriation. See Iowa Code § 6B.14(1). After the

compensation commission has assessed the damages to the condemnee, either

the condemnee or the condemnor may appeal the appraisement of damages to

the district court. See Iowa Code § 6B.18; Burnham v. City of W. Des Moines,

568 N.W.2d 808, 810 (Iowa 1997). “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.” Iowa Code § 6B.18(2). In addition to timely filing a notice of appeal,

the appealing party must serve the notice of appeal on the adverse party within

thirty days of filing the same unless, for good cause shown, the district court

grants additional time. See id. “Appeals from condemnation awards invoke the
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appellate jurisdiction of the district court.” Chao v. City of Waterloo, 346 N.W.2d

822, 824 (Iowa 1984). If the party seeking appellate review fails to follow the

prescribed procedure, the district court obtains no jurisdiction and the appeal

must be dismissed. See Wade Farms, 419 N.W.2d at 721; Carmichael v. Iowa

State Highway Comm’n, 156 N.W.2d 332, 335 (Iowa 1968).

On July 2, 2013, the Jones County Sheriff mailed notice of the

appraisement of damages and notice of appeal rights to the DeShaws. In an

attempt to exercise their appeal rights, the DeShaws mailed four letters dated

July 31, 2013, and postmarked August 1, 2013, from their residence in Texas to

the Linn County Courthouse. Two of the four letters were addressed to the Chief

Judge of the Sixth Judicial District, which contains Jones County, and two of the

four letters were addressed to the Linn County Clerk of Court. Two of the four

letters were then delivered and filed with the Jones County Clerk of Court on

August 8, 2013. The remaining letters were delivered and filed with the Jones

County Clerk of Court on August 12, 2013. On October 4, 2013, the DeShaws

filed a Petition for Appeal of Condemnation Commissioners’ Award of Damages.

The DeShaws never served their letters or petition.

The county answered the DeShaws’ petition and moved to dismiss the

appeal. The county argued neither the DeShaws’ petition nor the DeShaws’

letters were filed in the district court in which the real estate was located within

the thirty-day appeal period set forth in section 6B.18(2). The county further

argued the DeShaws failed to timely serve their notice of appeal as required by

section 6B.18(2). The DeShaws argued the appeal was timely filed because
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they substantially complied with the filing and service requirements. The

DeShaws further argued that the Jones County Sheriff’s notice to them was

defective and thus excused any noncompliance. Finally, the DeShaws argued

the county suffered no prejudice because it had actual notice of the DeShaws’

intent to appeal the appraisement of damages. The district court granted the

county’s motion to dismiss, holding the sheriff’s notice was not defective and the

DeShaws failed to timely perfect their appeal.

We conclude the district court did not err in dismissing the DeShaws’

appeal. The sheriff mailed notice of the appraisement on July 2, 2013. The

appeal period ended on August 1, 2013. The DeShaws did not file an appeal in

the district court in which the real estate was located until they filed their petition

on October 4, 2013, more than two months after the appeal deadline. Even

assuming the DeShaws’ letters constituted notice of appeal, the letters were not

filed in Jones County until August 8, 2013, one week after the appeal deadline.

The appeal was thus untimely and properly dismissed.

The DeShaws argue they substantially complied with the statutory appeal

provisions by mailing letters to Linn County. Even assuming the letters constitute

notice of appeal, we disagree. This case is largely controlled by Schooler v. Iowa

Department of Transportation, 576 N.W.2d 604 (Iowa 1998). In that case, the

court explained it had “strictly construed the requirements of sections 6B.18 and

.19 in prior cases” and was “reluctant to change [its] interpretation of the statutory

requirements . . . .” Schooler, 576 N.W.2d at 608. The court then rejected the

same substantial compliance argument the DeShaws advance here, concluding
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that while “‘some latitude exists for upholding jurisdiction in this type of

proceeding if substantial compliance with the statutory procedures is shown, we

have recognized that this principle does not permit a court to extend the time

within which an appeal may be taken.’” Id. (citation omitted). The DeShaws

request we “revisit the harsh consequences of strict construction” set forth in

Schooler. “Generally, it is the role of the supreme court to decide if case

precedent should no longer be followed.” State v. Miller, 841 N.W.2d 583, 584

n.1 (Iowa 2014). We thus decline the invitation to revisit the issue.

The DeShaws also argue their failure to timely file their notice of appeal in

the correct county should be excused because the sheriff’s notice, which

triggered their appeal rights, was defective. The statute provides

[T]he sheriff shall give written notice, by ordinary mail, to the
condemner and the condemnee of the date on which the
appraisement of damages was made, the amount of the
appraisement, and that any interested party may, within thirty days
from the date of mailing 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.

Iowa Code § 6B.18(1). Here, the sheriff’s notice provided the date on which the

appraisement of damages was made, the amount of the appraisement, and

further stated “you may within (30) days from the date of mailing this Notice,

appeal to the District Court as by law provided.” The DeShaws argue the notice

was defective because it failed to specify the appeal had to be filed in the district

court of the county in which the real estate is located. While the argument has

superficial appeal, we conclude it is unavailing.
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A similar argument was addressed in Norgard v. Iowa Department of

Transportation, 555 N.W.2d 226, 229 (Iowa 1996). In that case, the condemnees

contended their untimely notice of appeal should have been excused because

the sheriff’s notice did not state the date of the appraisement or the date the

notice of the award was sent. Norgard, 555 N.W.2d at 229. The court held that

the notice substantially complied with the statutory provision for notice because it

contained the time in which to file an appeal and because the date of mailing

could be ascertained by the condemnees. See id. Similarly, in this case, the

sheriff’s notice provided the time period for appeal and directed the appeal must

be made “to the District Court as by law provided.” Thus, the notice contained by

reference all required information and did not contain any misinformation on

which the DeShaws detrimentally relied. The DeShaws were on notice to

investigate the requirements of the law to protect their property rights. They

failed to do so. “Because the notice informed the condemnees of their right to

appeal and the time for such an appeal,” the sheriff’s notice substantially

complied with section 6B.18. Burnham, 568 N.W.2d at 812.

The DeShaws also argue the dismissal of their action without further

hearing violates due process. Due process requires “notice reasonably

calculated, under all the circumstances, to apprise interested parties of the

pendency of the action and afford them an opportunity to present their

objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314

(1950). “Section 6B.18 provides an opportunity for condemnees to present their
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objections to the appraisement and informs them of the time in which such

objections must be made.” Norgard, 555 N.W.2d at 228. Due process requires

notice and the opportunity to be heard. There is no absolute right to be heard in

contravention of statutorily imposed appeal deadlines. See W. Iowa Co-op. v.

Woodbury Cnty. Bd. of Review, No. 05-0989, 2006 WL 1229940, at *3 (Iowa Ct.

App. Apr. 26, 2006) (stating statutory procedures for appeal afforded litigant due

process and adopting district court’s proposition that “the fact that a property

owner fails through his/her own fault to correctly follow this procedure should not

be adjudged a violation of due process”).

There is an undercurrent in the DeShaws’ argument that should be

addressed. The Deshaws note they were acting without counsel at the time they

mailed their letters to Linn County. The decision to retain counsel or forego

counsel is an important choice. Here, the DeShaws chose to proceed without

counsel on an important and substantial matter. The fact the DeShaws

exercised a choice to proceed without counsel does not excuse their

noncompliance with statutory deadlines. See Polk Cnty. v. Davis, 525 N.W.2d

434, 435 (Iowa Ct. App. 1994) (“Substantial departures from appellate

procedures cannot be permitted on the basis that a lay person is handling his

own appeal. If lay persons choose to proceed pro se, they do so at their own

risk.”).

We hold the DeShaws’ notice of appeal was not timely filed, the district

court lacked jurisdiction to hear this case, and the district court did not err in
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granting the county’s motion to dismiss. Accordingly, we affirm the judgment of

the district court.

AFFIRMED.