CITY OF DES MOINES MUNICIPAL HOUSING AGENCY, Plaintiff-Appell ant/Cross-Appellee, vs. CHARMAINE HUNTER and All Other Occupants, Defendants-Appellees/Cross-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-570 / 05-1405
Filed September 6, 2007
CITY OF DES MOINES MUNICIPAL
HOUSING AGENCY,
Plaintiff-Appellant/Cross-Appellee,
vs.
CHARMAINE HUNTER and
All Other Occupants,
Defendants-Appellees/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Donna L. Paulsen,
Judge.
Housing agency appeals district court decision dismissing its forcible entry
and detainer action on summary judgment. AFFIRMED.
Michael Kelley, Assistant City Attorney, Des Moines, for appellant/crossappellee.
Robert W. Wright, Jr., of Wright and Wright, Des Moines, for
appellees/cross-appellants.
Considered by Huitink, P.J., and Vogel and Baker, JJ.
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HUITINK, P.J.
The Des Moines Municipal Housing Authority (DMMHA) appeals from a
district court judgment dismissing its forcible entry and detainer action (FED) on
summary judgment. We affirm.
I. Background Facts and Prior Proceedings
Charmaine Hunter has been a tenant in federally subsidized public
housing owned and managed by DMMHA since 1988. Her original lease was for
a thirty-day period and provided for automatic renewal for successive thirty-day
periods. The lease gave DMMHA the right to terminate the lease for serious or
repeated violations of material terms of the lease. Under the lease, DMMHA was
required to give Hunter thirty-day written notice of its intention to terminate the
lease.
It also gave Hunter the right to an administrative hearing to resolve
disputes with DMMHA about termination or nonrenewal of the lease.
On April 27, 2001, DMMHA presented Hunter with written notice that the
lease was terminated as of May 31, 2001, because of material violations of the
terms of the lease. The notice did not inform Hunter that she had seven days to
cure the alleged violations and avoid termination of the lease. See Iowa Code §
562A.27(1) (2001).
Hunter requested an administrative hearing. The hearing officer upheld
the termination notice, finding Hunter was in violation of the lease for failing to
report gambling income and for having an unauthorized person living in her
residence from 1995 until 2000.
Hunter refused to vacate the property, so DMMHA filed an FED action in
small claims court on June 12, 2001. The small claims court ruled on the FED
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action and ordered Hunter to vacate the property. Hunter appealed this decision
to the district court. The district court found it did not have jurisdiction to hear the
case because DMMHA had failed to provide notice of the right to cure, as
required by Iowa Code section 562A.27(1).
Accordingly, the district court
reversed the decision of the small claims court and dismissed the FED action.
DMMHA filed a request for discretionary review with the Iowa Supreme Court.
This request was denied on January 2, 2002.
On January 16, 2002, DMMHA issued Hunter a second lease
termination/nonrenewal notice based on the same grounds as the first notice but
citing a different statutory provision. See Iowa Code § 562A.34(2). Again, the
notice did not give Hunter the right to cure the alleged violations.
requested another administrative hearing.
Hunter
This hearing officer upheld the
January 16 notice on the grounds that Hunter failed to report gambling income
and had an unauthorized person living in the residence from 1995 to 2000.
Hunter did not vacate the residence, so on December 6, 2002, DMMHA filed a
second FED action in Polk County District Court. The district court dismissed the
action, noting it did not have jurisdiction to hear the case because, once again,
DMMHA did not notify her that she had seven days to cure the alleged violation
as required by section 562A.27(1).
In 2003 the Iowa Legislature amended section 562A.27 by adding a new
subsection. 2003 Iowa Acts, ch. 154 § 2. The amendment, labeled section
562A.27(5), provided that:
a municipal housing agency established pursuant to chapter 403A
may issue a thirty-day notice of lease termination for a violation of a
rental agreement by the tenant when the violation is a violation of a
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federal regulation governing the tenant’s eligibility for or continued
participation in a public housing program. The municipal housing
agency shall not be required to provide the tenant with a right or
opportunity to remedy the violation or to give any notice that the
tenant has such a right or opportunity when the notice cites the
federal regulation as authority.
Id. After this statute became effective, DMMHA served Hunter with written notice
that her lease was terminated as of September 30, 2003. As before, this notice
did not inform her that she had the right to avoid termination by remedying the
alleged allegations.
Hunter requested her administrative hearing, and the
hearing officer once again upheld the notice by relying on the information from
the previous hearings to find that she had committed material violations of the
lease between the years of 1995 and 2000.
Hunter refused to vacate the
premise, so DMMHA filed the present FED action in district court on April 21,
2004.
Hunter responded to the action with a motion for summary judgment.
Hunter made two claims: (1) she was in peaceable possession of the property
for an eighty-six-day period between the January 26, 2004 decision by the
hearing officer and the April 21, 2004 FED action and (2) the dismissal of the two
previous FED actions are now the law of the case and binding on the present
action.
The district court rejected the peaceable possession argument, but
granted the motion for summary judgment under the principles of res judicata
and the separation of powers doctrine. DMMHA filed a motion to enlarge and
amend, noting that the previous dismissals were based on a lack of jurisdiction
and were not judgments on the merits. See Iowa R. Civ. P. 1.946 (“All dismissals
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not governed by Rule 1.943 or not for want of jurisdiction or improper venue,
shall operate as adjudications on the merits unless they specify otherwise.”).
DMMHA also argued the amended statute was procedural in nature, and
therefore was effective retroactively.
In its ruling on the motion to enlarge and amend, the district court
acknowledged the previous FED rulings were not adjudications on the merits.
Accordingly, it amended its original ruling to remove its reliance on the doctrine of
res judicata.
However, the court reaffirmed its decision to grant summary
judgment, noting the new statute could not be applied retroactively because it
affected Hunter’s substantive rights to cure the lease violations.
DMMHA appeals, arguing the amended statute was procedural in nature
and therefore effective retroactively. 1
Hunter cross-appeals, claiming the
summary judgment ruling could be upheld on the additional grounds urged
before the district court.
II. Standard of Review
We review the district court’s ruling on a motion for summary judgment for
correction of errors at law. Walderbach v. Archdiocese of Dubuque, Inc., 730
N.W.2d 198, 199 (Iowa 2007). Summary judgment is appropriate where there is
no genuine issue of material fact and the moving party is entitled to judgment as
a matter of law. Id. We may resolve a case on summary judgment when the
1
It is unclear whether the court’s ruling on the motion to enlarge disaffirmed its reliance
on the separation of powers doctrine. Therefore, DMMHA also argues there was no
violation of this doctrine. Because we affirm the court’s decision on the prospective
nature of the statutory amendment, we need not address this issue on appeal.
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only dispute concerns legal consequences flowing from undisputed facts.
Kragnes v. City of Des Moines, 714 N.W.2d 632, 637 (Iowa 2006).
III. Merits
DMMHA claims the district court erred because the amended Iowa statute
operates retroactively and therefore DMMHA had no obligation to give Hunter
notice of her right to cure the alleged violations. This argument is based on
DMMHA’s claim that the statute is a “purely procedural” amendment that merely
alters a rule governing the procedural steps in a FED action. Implicit in this
argument is DMMHA’s assumption that, even under the previous statute, Hunter
had “no right to cure her long-term fraud on the public housing system.” The
district court rejected this argument, finding the amended statute was substantive
and not merely procedural.
Our legislature has provided a statutory general rule that determines the
applicability of its laws. Iowa Code section 4.5 (2003) provides, “A statute is
presumed to be prospective in its operation unless expressly made
retrospective.” The preference of the legislature for prospectivity is further stated
in Iowa Code section 3.7(6):
“Unless retroactive effectiveness is specifically
provided for in an Act or resolution, an Act or resolution which is enacted after an
effective date provided in the Act or resolution shall take effect upon the date of
enactment.” However, if the act or resolution is procedural or remedial, it is not
limited to prospective application, even in the absence of clear legislative intent.
Schuler v. Rodberg, 516 N.W.2d 902, 904 (Iowa 1994); Smith v. Korf, Diehl,
Clayton & Cleverley, 302 N.W.2d 137, 138 (Iowa 1981).
“In contrast to
substantive legislation, procedural legislation applies to all actions—those that
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have accrued or are pending and future actions.” Dolezal v. Bockes, 602 N.W.2d
348, 351 (Iowa 1999). The retrospective application proscribed by the general
rule is one which “takes away or impairs vested rights acquired under existing
laws, or creates a new obligation, imposes a new duty, or attaches a new
disability in respect to transactions or considerations already past.” Smith, 302
N.W.2d at 138 (citations omitted).
On its face, section 562A.27(1) appears to be a procedural statute:
if there is a material noncompliance by the tenant with the rental
agreement . . . the landlord may deliver a written notice to the
tenant specifying the acts and omissions constituting the breach
and that the rental agreement will terminate upon a date not less
than seven days after receipt of the notice if the breach is not
remedied in seven days, and the rental agreement shall terminate
as provided in the notice subject to the provisions of this section.
(Emphasis added.)
However, two subsequent cases interpreting section
562A.27 have shown that this statute contains both procedural and substantive
components.
In Symonds v. Green, 493 N.W.2d 801, 802 (Iowa 1992), our supreme
court considered a dispute over a written month-to-month residential rental
agreement. When the tenant fell behind in her rent, the landlord served her with
a standard three-day notice to quit. Symonds, 493 N.W.2d at 802. This form did
not give the tenant the opportunity to pay the delinquent rent prior to termination
of the rental agreement. Id. The landlord commenced a FED action and the
tenant responded by arguing that the FED action could not be maintained
because the landlord had failed to serve her with a three-day written notice to
cure before terminating the lease. Id. The district court rejected this argument,
noting the landlord’s service of the three-day notice to cure was a “technical
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error” that did not prejudice the ‘substantial rights’ of the parties in the absence of
evidence that [the tenant] offered or attempted to cure the defect.”
Id.
On
appeal, the supreme court reversed the district court, holding:
The landlord must notify the tenant in writing of nonpayment of rent
and inform the tenant of the right to cure the nonpayment prior to
terminating the rental agreement. . . .
....
. . . Because [the landlord] failed to notify [the tenant] of her
right to cure the nonpayment of rent prior to termination of the
rental agreement, the trial court lacked jurisdiction to hear [the
landlord’s] forcible entry and detainer action.
Id. at 802-03 (emphasis added).
In Liberty Manor v. Rinnels, 487 N.W.2d 324, 326 (Iowa 1992), a landlord
claimed it had no duty to provide the tenant with a notice of the right to cure
because the tenant’s prior aggressive and intimidating conduct was a breach of
the lease and thus not remediable within the meaning of section 562A.27(1).
The supreme court rejected this argument, noting that the notice to cure must still
be given because, after the notice is given, the question of “[w]hether the tenant
has remedied the breach then becomes a fact question for the trial court.”
Liberty Manor, 487 N.W.2d at 326-27.
We can draw two conclusions from these cases: (1) a residential tenant
has the right or opportunity to attempt to cure the violation before the lease is
terminated and (2) the landlord has an obligation to inform the tenant of that right.
The following language from the 2003 amendment, as codified in section
562A.27(5), did away with both the notice requirement and the tenant’s
opportunity or right to cure the alleged violation:
The municipal housing agency shall not be required to provide the
tenant with a right or opportunity to remedy the violation or to give
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any notice that the tenant has such a right or opportunity when the
notice cites the federal regulation as authority.
(Emphasis added.) Because this amendment eliminates the tenant’s existing
right or opportunity to try and remedy an alleged violation, as set forth in
Symonds and Liberty Manor, we find this statute is clearly substantive in nature.
See Dolezal, 602 N.W.2d at 351 (“Because substantive legislation cannot
extinguish vested rights, such legislation can only operate prospectively.”).
As noted above, substantive legislation is given a prospective application
unless retroactive effectiveness is specifically provided for in the act or
resolution. Iowa Code § 3.7(6); Smith, 302 N.W.2d at 138. Because the new
legislation was substantive and the legislature did not make it effective
retroactively, the district court properly refused to apply it to the violations that
allegedly occurred years before its enactment. Accordingly, we affirm the district
court’s decision to grant summary judgment in this case.
AFFIRMED.
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