Opinion
No. 2-695 / 01-1968.
Filed December 11, 2002.
Appeal from the Iowa District Court for Webster County, JOEL E. SWANSON, Judge.
Burgess appeals a district court ruling concluding he was not entitled to default notice in a Chapter 809A civil forfeiture proceeding. AFFIRMED.
James Fitzgerald, of Schnurr, Fitzgerald Kersten Law Offices, Fort Dodge, for appellant.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, Ron Robertson, County Attorney, and Timothy Schott, Assistant County Attorney, for appellee.
Heard by HUITINK, P.J., and MAHAN and VAITHESWARAN, JJ.
The sole issue in this appeal is whether Iowa Rule of Civil Procedure 1.972, governing default procedures, applies to a Chapter 809A civil forfeiture proceeding. Like the district court, we conclude it does not. Accordingly, we affirm.
Formerly Iowa R.Civ.P. 231.
I. Background Facts and Proceedings
An investigation of firearm and explosive violations led to the seizure of property from a Fort Dodge location. Following the seizure, the State filed an in rem forfeiture complaint. See Iowa Code § 809A.13. Brad Burgess was among the persons served with the complaint. He was advised to file an answer within twenty days of service. When he did not, the State sought and obtained an order forfeiting the property.
Several months later, Burgess applied to have the forfeiture order set aside, claiming the State failed to comply with the default notice provision contained in Iowa Rule of Civil Procedure 1.972. The district court denied the application and this appeal followed.
II. Applicability of Iowa Rule of Civil Procedure 1.972 to In rem Forfeiture Proceeding Under Iowa Code Chapter 809A
A default is defined as a failure "to serve and, within a reasonable time thereafter, file a motion or answer. . . ." Iowa R.Civ.P. 1.971(1). Under the rules of civil procedure,
No default shall be entered unless the application contains a certification that written notice of intention to file the written application for default was given after the default occurred and at least ten days prior to the filing of the written application for default.
Iowa R.Civ.P. 1.972(2). This notice provision does not apply to certain enumerated proceedings. Iowa R.Civ.P. 1.972(4). Forfeiture proceedings are not among the excluded proceedings. Burgess contends, therefore, that the State cannot obtain a default forfeiture order until it complies with this default notice provision.
(4) Applicability. The notice provisions of this rule shall not apply to a default sought and entered in the following cases:
a. Any case prosecuted under small claims procedure.
b. Any forcible entry and detainer case, whether or not placed on the small claims docket.
c. Any juvenile proceeding.
d. Against any party claimed to be in default when service of the original notice on that party was by publication.
While this contention is appealing at first blush, we believe it is refuted by the plain language of Iowa Code chapter 809A. See Miller v. Marshall County, 641 N.W.2d 742, 748 (Iowa 2002) ("[w]hen a statute is unambiguous, we need not look beyond the plain meaning of the express statutory terms."); Hinders v. City of Ames, 329 N.W.2d 654, 655 (Iowa 1993) (where language of statute is clear and plain there is no room for construction, and the sole function of this court is to apply the statute according to its terms).
Chapter 809A specifies that the rules of civil procedure apply to forfeiture proceedings "[e]xcept as otherwise provided." Iowa Code § 809A.12(16). Iowa Code section 809A.13(6), governing in rem forfeiture proceedings, provides otherwise, stating "[t]he rules of civil procedure shall apply to discovery by the state and any claimant who has timely answered the complaint." (emphasis added). Burgess did not file an answer. See Iowa Code § 809A.13(5) (requiring answer to be filed within twenty days of service of the in rem complaint). Therefore, he was not entitled to invoke the rules of civil procedure, including the default notice provision contained in Rule 1.972(2).
This conclusion is reinforced by the statutory provision addressing disposition of forfeited property. Iowa Code § 809A.16(3). That provision authorizes the State to "apply for an order of forfeiture and an allocation" if an answer is not timely filed. Id. The court, in turn is authorized to order the property forfeited to the State upon a determination "that the state's written application established the court's jurisdiction, the giving of proper notice, and facts sufficient to show probable cause for forfeiture". Id.
Burgess does not argue that any of these prerequisites were unsatisfied.
In short, under the express terms of Iowa Code sections 809A.13(5) and 809A.16(3), Burgess's failure to file a timely answer to the in rem complaint allowed the State to seek and obtain a forfeiture order without first complying with rule 1.972(2).
We affirm the district court's denial of Burgess's application to set aside the forfeiture order.