DEERFIELD APARTMENTS, L.L.P., DELL L. ARNESON and CHARLES L. FLACH, Plaintiff-Appellants, vs. MARILYN DRAKE, as Pottawattamie County Auditor a nd STEVE PALM, as Pottawattamie County Assessor, Defendant-Appellees.
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IN THE COURT OF APPEALS OF IOWA
No. 6-543 / 05-1406
Filed November 16, 2006
DEERFIELD APARTMENTS, L.L.P.,
DELL L. ARNESON and
CHARLES L. FLACH,
Plaintiff-Appellants,
vs.
MARILYN DRAKE, as Pottawattamie
County Auditor and STEVE PALM, as
Pottawattamie County Assessor,
Defendant-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, J.C. Irvin,
Judge.
Deerfield Apartments, L.L.P., Dell L. Arneson, and Charles L. Flach
appeal the dismissal of their petition requesting a writ of mandamus compelling
the Pottawattamie County Auditor and Assessor to recognize and assess
Deerfield Apartments as a condominium. REVERSED AND REMANDED.
Kyle S. Irvin and Jeffrey Poulson of Corbett, Anderson, Corbett, Poulson &
Vellinga, L.L.P., Sioux City, for appellant.
Lyle W. Ditmars of Peters Law Firm, P.C., Council Bluffs, for appellee.
Matthew D. Wilber, Pottawattamie County Attorney, and Margaret Popp
Reyes, Assistant Pottawattamie County Attorney, Council Bluffs, for appellee.
Heard by Huitink, P.J., Vogel, J., and Beeghly, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
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PER CURIAM
Deerfield Apartments, L.L.P., Dell L. Arneson, and Charles L. Flach
(hereinafter “Deerfield Apartments”) appeal the dismissal of their petition seeking
a writ of mandamus compelling the Pottawattamie County Auditor and Assessor
to recognize and assess Deerfield Apartments as a condominium. We reverse
and remand for further proceedings.
I. Background Facts & Proceedings.
Deerfield Apartments consists of seventy-two apartments and thirty-six
garages. On October 30, 2003, Deerfield Apartments sent notice to the Council
Bluffs City Building Inspection Office (hereinafter “city”) of its intention to convert
the apartment structure into condominiums. On December 30, 2003, Deerfield
Apartments recorded its “Declaration for Establishment of a Horizontal Property”
(Condominium). On February 9, 2004, 102 days after filing the notice with the
city, Deerfield Apartments received a notice from the city that the property did not
meet the city’s building codes and therefore it could not be designated as a
condominium.
Thereafter the Pottawattamie County Auditor declined to
recognize Deerfield Apartments as condominiums, and the Pottawattamie
County Assessor refused to assess Deerfield Apartments as condominiums.
On May 19, 2005, Deerfield Apartments filed a petition in district court
seeking a writ of mandamus for the auditor and the assessor to recognize its
declarations and assess the property accordingly. On June 9, 2005 and June 17,
2005, the assessor and the auditor each filed separate motions to dismiss
arguing they lacked the statutory authority to recognize and assess Deerfield
Apartments as condominiums, citing the city’s determination the property did not
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meet applicable building code requirements.
court granted the motions to dismiss.
On August 4, 2005, the district
The court concluded the auditor and
assessor did not have the authority to recognize and assess Deerfield’s property
as a condominium because the city determined the property did not meet
applicable building code requirements for a condominium.
On appeal, Deerfield Apartments argues:
I.
The district court erred in sustaining the county assessor’s
and auditor’s separate motions to dismiss.
II. Standard of Review.
We review a ruling on a motion to dismiss for errors of law. Barnes v.
State, 611 N.W.2d 290, 292 (Iowa 2000).
III. Merits.
A dismissal will be affirmed if a petition shows no right of recovery under
any state of facts. Id. “A motion to dismiss admits the well-pleaded facts in the
petition and waives any ambiguity or uncertainty.” Tate v. Derifield, 510 N.W.2d
885, 887 (Iowa 1994). “Allegations in the petition are viewed in a light most
favorable to the plaintiff and facts not alleged cannot be relied on to aid a motion
to dismiss nor may evidence be taken to support it.” Ritz v. Wapello County Bd.
of Sup’rs, 595 N.W.2d 786, 789 (Iowa 1999). “We do not recommend filing or
sustaining a motion to dismiss if the viability of a claim is at all debatable.”
Renander v. Inc., Ltd., 500 N.W.2d 39, 41 (Iowa 1993) (citing Cutler v. Klass,
Whicher & Mishne, 473 N.W.2d 178, 181 (Iowa 1991)).
Contrary to the county’s arguments, we conclude it is too early at the
pleading stage to resolve the issues raised in the motion to dismiss. The scope
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of the county’s duties or other theory of relief may require discovery to be
established. If no viable theory is revealed through discovery, Deerfield’s claim
for relief can and should be resolved by a motion for summary judgment.
REVERSED AND REMANDED.
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