Opinion
No. 123 / 03-1477
December 3, 2004
Appeal from the Iowa District Court for Shelby County, James M. Richardson, Judge.
Property owner who has brought various actions seeking to block construction on an adjacent lot appeals from sanction requiring the furnishing of a bond as a condition for further litigation involving the same subject. REVERSED.
Bruce B. Green and Brett Ryan of Willson Pechacek, P.L.C., Council Bluffs, for appellant.
Marcus Gross, Jr., Harlan, Robert W. Hall of Childs Hall, P.C., Harlan, and Joseph C. Lauterbach of Salvo, Deren, Schenck Lauterbach, P.C., Harlan, for appellees.
Ken Sojka, a property owner who had previously brought various actions seeking to prevent the location of a home on a lot adjacent to his personal residence, appeals from a sanction imposed by the district court requiring him to post a bond as a condition to bringing further litigation involving the same dispute. Upon reviewing the record and considering the arguments presented, we reverse the district court's order.
The district court's order for sanctions was premised on Iowa Rule of Civil Procedure 1.413(2), which provides:
If a party commencing an action has in the preceding five-year period unsuccessfully prosecuted three or more actions, the court may, if it deems the actions to have been frivolous, stay the proceedings until that party furnishes an undertaking secured by cash or approved sureties to pay all costs resulting to opposing parties to the action including a reasonable attorney fee.
In ordering a sanction pursuant to that rule, the district court relied on four actions that had been commenced by Sojka in the Iowa District Court for Shelby County. These were No. LACV017701 (the action in which the request for sanction was filed), No. CVCV017793, No. CVCV017802, and No. LACV017531. Sojka urges that the bringing of these actions did not support an imposition of a sanction under rule 1.413(2). We agree.
The first of the foregoing actions to have been filed was No. LACV017531 commenced on September 11, 2000. That action sought to require a hearing on action proposed to be taken by the zoning board. Sojka prevailed in this action. The next action, filed in March 2002, was No. LACV017701, which was a request for a declaratory judgment concerning conditions under which a building permit could be granted to allow the moving of a home then located at a different location to a lot adjacent to Sojka's home. That is the action in which the challenged request for sanctions was ultimately filed. The other two actions, both filed in November 2002, were certiorari actions challenging two different building permits issued with respect to the property neighboring Sojka's home. Both of these challenges were unsuccessful. Following the conclusion of the two certiorari actions, the city moved that the claims in No. LACV017701 that duplicated the claims rejected in the certiorari actions be summarily adjudicated against Sojka, allowing the other issues in No. LACV017701 to proceed. Those other issues related to a nuisance claim that has not been characterized as frivolous by appellees. However, at this point, Sojka dismissed No. LACV017701 in its entirety. Prior to that dismissal, however, a motion for sanctions had been filed by the adjoining landowner.
Although actions No. CVCV017793 and No. CVCV017802 were unsuccessfully prosecuted by Sojka, the district court rejected the defendant's request in those actions for sanctions under rule 1.413(1). In spite of that ruling, a different judge who considered the request for sanctions now before the court deemed those certiorari actions to have been frivolous. We need not resolve that controversy nor need we consider whether the voluntary dismissal of No. LACV017701 precludes the consideration of that claim as a prior unsuccessfully prosecuted frivolous action. Even if there had been three unsuccessfully prosecuted frivolous actions at the time of the district court's sanction order, they would have had to precede the commencement of yet another action within a five year period in order for rule 1.413(2) to be invoked. That has not been shown to have occurred.
We have considered all issues presented and conclude that the facts did not support an imposition of sanctions pursuant to Iowa Rule of Civil Procedure 1.413(2). The order of the district court is reversed.
REVERSED.
All justices concur except Larson, J., who takes no part.
This is not a published opinion.