Opinion
No. 5-382 / 03-1629
Filed June 29, 2005
Appeal from the Iowa District Court for Pocahontas County, Ronald H. Schechtman, Judge.
Appellants appeal from the district court's ruling dismissing their appeal for failure to timely file a petition, as required by Iowa Code section 468.86 (2003). REVERSED AND REMANDED.
James L. Kramer and Eric J. Eide of Johnson, Erb, Bice, Kramer, Good Mulholland, P.C., Fort Dodge, for appellants.
James W. Hudson of Hudson Law Firm, Pocahontas, for appellee.
Heard by Sackett, C.J., Huitink, Vogel, and Hecht, JJ., and Nelson, S.J. Nelson, S.J., takes no part.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
I. Background Facts Proceedings
On July 1, 2003, the Pocahontas County Board of Supervisors, as trustees for Pocahontas Drainage District No. 77, adopted a resolution approving the annexation of certain land into the drainage district.
On July 21, 2003, Donald H. Woodin, A.C. Haman, Dave Woodin, Dan Woodin and D G Woodin filed a notice of appeal to the district court, as permitted by Iowa Code section 468.83 (2003) ("Any person aggrieved may appeal from any final action of the board in relation to any manner involving the person's rights, to the district court of the county in which the proceeding was held."). The notice of appeal was timely under section 468.84, which provides all appeals must be taken within twenty days after the final action of the Board.
On August 5, 2003, Donald and A.C. filed a petition in equity, alleging the annexation of their land into the drainage district was improper. The Board filed a motion to dismiss the claims of Dave, Dan and D G on the ground that they had failed to timely file a petition, as required by section 468.86. This section provides:
Within twenty days after perfection of the appeal the appellant shall file a petition setting forth the order or final action of the board appealed from and the grounds of the appellant's objections and the appellant's complaint, with a copy of the appellant's claim for damages or objections filed with the auditor. The appellant shall pay to the clerk the filing fee as provided by law in other cases. A failure to pay the filing fee or to file such petition shall be deemed a waiver of the appeal and in such case the court shall dismiss the same.
Iowa Code § 468.86 (emphasis added). On September 12, 2003, an amended and restated petition in equity was filed, listing Donald, Dave, Dan, and D G, as plaintiffs.
The district court found:
In looking at the petition, it is clear that only Donald Woodin and Haman are recited in its body, as far as their residency is concerned; and obviously, they are the only ones named in the caption. Omitting the others seems more than an oversight.
The court concluded that based upon the clear language of section 468.86, the claims of Dave, Dan and D G should be dismissed because they did not file a timely petition.
The plaintiffs filed a post-trial motion pursuant to Iowa Rule of Civil Procedure 1.904(2), which alleged that under the relation-back doctrine, the claims of Dave, Dan and D G should relate back to the timely petition of Donald and A.C. The district court denied the post-trial motion, finding that section 468.86 makes it mandatory to dismiss an appeal if a timely petition has not been filed. Donald, Dave, Dan and D G have appealed. II. Standard of Review
Because Donald was not dismissed from the case by the district court, we question whether he has standing to appeal the dismissal. See Elview Constr. Co. v. North Scott Cmty. Sch. Dist., 373 N.W.2d 138, 141 (Iowa 1985) (noting that in order to have standing, a plaintiff must allege a sufficient personal stake in the outcome of a controversy to insure that the dispute is presented in a concrete adversarial context).
This case was tried in equity. See Iowa Code § 468.91; Hicks v. Franklin County Auditor, 514 N.W.2d 431, 435 (Iowa 1994). We review rulings on motions to dismiss, however, for correction of errors of law. Barnes v. State, 611 N.W.2d 290, 292 (Iowa 2000). A dismissal will be affirmed if a petition shows no right of recovery under any state of facts. Id. III. Merits
Owners of land have the right to appeal to the district court from an order establishing a drainage district. Iowa Code § 468.84; Thompson v. Board of Supervisors, 201 Iowa 1099, 1106, 206 N.W. 624, 626 (1925). A decision on appeal does not affect the rights or liabilities of parties who did not appeal. Iowa Code § 468.96.
The district court acquires jurisdiction when a party files a notice of appeal and gives a bond. See Iowa Code § 468.84; Elwood v. Board of Supervisors, 156 Iowa 407, 410, 136 N.W. 709, 710 (1912). In considering a previous version of section 468.86, the supreme court determined that the timely filing of a petition was not jurisdictional. Elwood, 156 Iowa at 411, 136 N.W. at 711; see also Baker v. City of Cedar Falls, 185 N.W.2d 810, 812 (Iowa 1971) ("[F]iling the petition within the time separately specified for filing petitions is not jurisdictional."); O'Neal v. State, 214 Iowa 977, 982, 243 N.W. 601, 604 (1932) ("[T]he statutory requirement that a petition be filed was held to be procedural only and not jurisdictional."). Furthermore,
This earlier version provided:
When an appeal authorized by this chapter is taken, the county auditor shall forthwith make a transcript of the notice of appeal and appeal bond and transmit the same to the clerk of the district court, and the clerk shall docket the same upon payment by the appellant of the docket fee; and on or before the first day of the next succeeding term of the district court the appellant shall file a petition setting forth the order or decision appealed from and his claims and objections relating thereto; a failure to comply with these requirements shall be deemed a waiver of the appeal and in such case the court shall dismiss the same.
Iowa Code § 1989-a14 (1911) (emphasis added).
the provision as to the dismissal of the petition was in the nature of a penalty; and that a strict construction of the statute should be made to avoid the imposition of the penalty, so long as the court should find that there had not been a want of diligence and vigilance by the appellant in the protection of his rights.
Reichenbach v. Getty, 163 Iowa 25, 27, 143 N.W. 842, 843 (1913) (citing Elwood, 156 Iowa at 411, 136 N.W. at 711).
We note that the relevant statutory language concerning dismissal of an appeal based on an untimely petition has not changed. See Iowa Code § 486.86 (2003) ("A failure to pay the filing fee or to file such petition shall be deemed a waiver of the appeal and in such case the court shall dismiss the same."); Iowa Code § 1989-14a (1911) ("[A] failure to comply with these requirements shall be deemed a waiver of the appeal and in such case the court shall dismiss the same."). We conclude, therefore, that dismissal based on an untimely petition is not mandatory. Reichenbach, 163 Iowa at 28, 143 N.W. at 843. But see Stewart v. Board of Supervisors, 183 Iowa 256, 258, 166 N.W. 1052, 1052-53 (1918) (finding the waiver of the appeal was complete upon the failure to file a petition by the date specified in the statute, and dismissal was appropriate). If the failure to file a timely petition is due to "mistake, accident, or neglect, it may be cured after motion is made provided it be done before the motion is decided." Elwood, 156 Iowa at 413, 136 N.W. at 711. We conclude the district court incorrectly determined that dismissal of the appeal was mandatory based upon an untimely petition.
In O'Neal, 214 Iowa at 982, 243 N.W. at 604, the supreme court attributes the holding in Stewart to "the fact that the motion to dismiss was filed prior to the filing of the petition." We note that Elwood, 156 Iowa at 413, 136 N.W.2d at 711, specifies an untimely petition may be cured if it is filed before a motion to dismiss is decided.
In the present case, at the dismissal hearing the plaintiffs' attorney made a professional statement, as follows:
As you'll note, the notice of appeal has those parties on there, and the subsequent first petition did not. Mr. Hudson's motion quite frankly showed us a mistake we made. It was a secretarial mistake because we have certain people listed as clients in this case. Hence the amended petition which we filed under [Iowa Rule of Civil Procedure] 1.402.
The Board did not present any evidence to show that the incomplete petition was something other than a clerical mistake. We conclude the initial petition, which did not list all of the plaintiffs, was the result of "mistake, accident, or neglect." See id.
The plaintiffs filed the first, incomplete petition on August 5, 2003. The Board filed a motion to dismiss on August 20, 2003. The plaintiffs filed an amended petition on September 12, 2003, which listed all of the plaintiffs. A hearing was held on September 15, 2003, and the district court's ruling on the motion to dismiss was filed on September 17, 2003. The problem with the petition was thus cured before the motion to dismiss was decided. See id. We conclude the case was improperly dismissed as to Dave, Dan and D G.
We note that the same result could be reached if we applied the relation-back doctrine to the amended petition filed in September 2003. The rules of civil procedure would apply in this case. See Mulkins v. Board of Supervisors, 330 N.W.2d 258, 261 (Iowa 1983); Voogd v. Joint Drainage Dist. No. 3-11, 188 N.W.2d 387, 388 (Iowa 1971).
Iowa Rule of Civil Procedure 1.402(4) provides that "[a] party may amend a pleading once as a matter of course at any time before a responsive pleading is served. . . ." The Board's motion to dismiss would not be considered a responsive pleading. See Chao v. City of Waterloo, 346 N.W.2d 822, 825 (Iowa 1984) (recognizing a party's right to amend even though a motion to dismiss had been filed). Therefore, plaintiffs had the right to amend their petition once, and they exercised this right by their September 2003 amended petition.
Rule 1.402(5) provides:
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.
This rule applies to a change of plaintiffs when there is no change in the issues asserted. Rieff v. Evans, 630 N.W.2d 278, 289 (Iowa 2001); Estate of Kuhns v. Marco, 620 N.W.2d 488, 494 (Iowa 2000). "The only requirement is that the named defendants have received sufficient notice of the action during the statute of limitation period." Ezzone v. Riccardi, 525 N.W.2d 388, 399-400 (Iowa 1994). Here, the defendants timely received notice of the action, and the amended petition does not change the issues, only the names of the plaintiffs. We conclude the amended petition relates back to the date of the original petition.
We reverse the decision of the district court and remand for further proceedings. We do not retain jurisdiction.
REVERSED AND REMANDED.
Sackett, C.J., and Vogel, J., concur; Hecht, J., concurs specially.
I concur in the result.