DARLO A. ESPEY n/k/a DARLO A. ANTOMORI JR. and TRAVIS ESPEY, Plaintiffs, vs. IOWA DISTRICT COURT FOR POLK COUNTY, Defendant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-320 / 08-0751
Filed July 22, 2009
DARLO A. ESPEY n/k/a DARLO A.
ANTOMORI JR. and TRAVIS ESPEY,
Plaintiffs,
vs.
IOWA DISTRICT COURT FOR POLK
COUNTY,
Defendant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Glenn E. Pille, Judge.
Darlo Antomori Jr. and Travis Espey seek certiorari review of a district
court order requiring them to post a bond to cover the costs of appellate attorney
fees and costs that could be awarded to the appellee in a related case. WRIT
SUSTAINED.
Valerie Cramer, Des Moines, for plaintiffs.
Thomas P. Lenihan, West Des Moines, for Mary Ann Antomori.
Heard by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
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DOYLE, J.
Darlo Antomori Jr. and Travis Espey, appellants in a related case, seek
certiorari review of a district court order requiring them to post a bond to cover
the costs of appellate attorney fees and costs that could be awarded to the
appellee, Mary Ann Antomori1, in the related case. We conclude the district court
improperly applied the law in granting Mary Ann‟s application for bond on appeal
and thus acted illegally in ordering Darlo Jr. and Travis to post such a bond. We
therefore sustain the writ of certiorari.
I. Background Facts and Proceedings.
The certiorari action before us arises from a related case that we affirmed
on appeal. See Antomori v. Espey, No. 07-2089 (Iowa Ct. App. June 17, 2009).
The facts of that case are set out in that decision and need not be fully repeated
here. However, we restate certain facts of that case and add additional facts
relevant to this certiorari action.
On August 31, 2006, Mary Ann filed an action in district court to enforce
her mechanic‟s lien against a property owned by Darlo Antomori Jr., Travis
Espey, and Nicole Espey.
against Mary Ann.
The property owners filed various counterclaims
Thereafter, the property owners sold the property.
On
July 23, 2007, the property owners posted a cash bond with the Clerk of the Polk
County District Court pursuant to Iowa Code section 527.15 (2005) to discharge
Mary Ann‟s mechanic‟s lien against the property to allow for the sale of the
1
Mary Ann Antomori died on June 19, 2009, four days before oral argument of this
matter.
3
subject property while the litigation ensued. Nicole ultimately settled with Mary
Ann and was dismissed from the suit.2
The matters between Mary Ann, Darlo Jr., and Travis proceeded to trial.
At the end of the trial, the district court requested the parties submit proposed
findings and conclusions to the court on their causes of action. Mary Ann‟s
proposed ruling proposed, among other things, that judgment be entered in her
favor and that the clerk of court be ordered to satisfy her judgment and any
awarded fees and costs from the cash bond previously posted by Darlo Jr.,
Travis, and Nicole. Mary Ann‟s proposed ruling further proposed that the clerk of
court be “directed to remit the balance, after satisfaction of [Mary Ann‟s]
judgment, attorney‟s fees, and costs, to [Darlo Jr., Travis, and Nicole] . . . .”3
On October 2, 2007, the district court entered its ruling finding in favor of
Mary Ann and ordered judgment be rendered in her favor plus interest, court
costs, trial attorney fees, and other costs. The court dismissed Darlo Jr.‟s and
Travis‟s counterclaims. Additionally, the court ordered that the clerk of court
satisfy Mary Ann‟s judgment and other awarded costs and fees from the cash
bond previously posted by Darlo Jr., Travis, and Nicole, and that the remainder
be returned to Darlo Jr. and Travis, as proposed by Mary Ann. The clerk then
dispersed the proceeds of the bond to Mary Ann, Darlo Jr., and Travis in
accordance with the court‟s order.
On December 12, 2007, after all of the bond proceeds had been
distributed, Darlo Jr. and Travis filed their notice of appeal. On February 7, 2008,
2
3
Nicole is not a party to the certiorari action presently before this court.
We are unable to determine whether Darlo Jr. and Travis submitted their own proposal.
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Mary Ann filed an application for bond on appeal before the district court. Mary
Ann‟s application stated that as a result of the distribution of the bond proceeds,
there remained no further bond/security held by the clerk to satisfy her attorney
fees and costs incurred on appeal. The application further stated that Darlo Jr.
and Travis “failed to apply to the [clerk] to determine bond on appeal.” Because
she may be entitled to attorney fees and costs on appeal, Mary Ann asserted she
was entitled to security by an order of the district court, citing Iowa Code section
572.32 and Schaffer v. Frank Moyer Construction, Inc., 628 N.W.2d 11 (Iowa
2001). The application‟s prayer further requested a hearing as provided by Iowa
Rule of Appellate Procedure 6.8 and Iowa Code chapter 625A. Darlo Jr. and
Travis resisted the application.
On April 10, 2008, the district court entered its ruling granting Mary Ann‟s
application for bond on appeal. The court explained:
[Darlo Jr. and Travis] originally posted a bond. Said bond was
posted . . . to allow for the sale of the subject property while this
litigation ensued. The bond that was previously posted was not a
supersedeas bond, nor one posted under any of the rules of
appellate procedure.
....
It is clear to the court, having reviewed the rules and case
law cited by [Mary Ann] herein, that generally a supersedeas bond
requested under Rule 6.7 of the Iowa Rules of Appellate Procedure
is designed to cover not only the judgment entered by the court but
“also all costs and damages adjudged against an appellant on the
appeal.” See Iowa [R. App. P.] 6.9. Costs of an appeal in this
mechanic‟s lien foreclosure case could include appellate attorney
fees and court costs. See [Schaffer, 628 N.W.2d at 23]. The court
notes also under Rule 6.8 of the Iowa Rules of Appellate
Procedure, it is the district court that is to determine the sufficiency
of the bond.
In additional support of her request, [Mary Ann] has cited the
court to Iowa Code section 625A.12, which provides that the
“appellant may be required to give security for costs under the
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same circumstances and upon the same showing as plaintiffs in
civil actions . . . .”
Accordingly, the court determines that [Mary Ann‟s]
application for bond on appeal should be granted. The court further
determines that [Mary Ann‟s] request for a bond in an amount no
less than $5000 is fair and reasonable.
Darlo Jr. and Travis subsequently filed a motion to reconsider, which the district
court denied.
On May 8, 2008, Darlo Jr. and Travis filed an application for discretionary
review of the district court‟s order requiring them to post the bond. The Iowa
Supreme Court determined the proper request for relief was by way of a petition
for writ of certiorari and treated the application as such. Our supreme court then
granted the petition, stayed the district court‟s order requiring the bond be
posted, and transferred the matter to this court for review.
II. Scope and Standards of Review.
“In an original certiorari proceeding, our review is for errors at law.” Alons
v. Iowa Dist. Ct., 698 N.W.2d 858, 863 (Iowa 2005) (citation omitted).
“A writ of certiorari lies where a lower board, tribunal, or court has
exceeded its jurisdiction or otherwise has acted illegally. For this
reason, this court „may examine only the jurisdiction of the district
court and the legality of its actions.‟ „Illegality exists when the
court‟s findings lack substantial evidentiary support, or when the
court has not properly applied the law.‟”
Id. (citation omitted).
III. Discussion.
On appeal, Darlo Jr. and Travis (hereinafter “appellants”) argue that the
district court erred in requiring them to post an appeal bond for Mary Ann‟s
possible future appellate attorney fees where the underlying judgment of the
district court has been satisfied. Mary Ann argues that because she may be
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entitled to appellate attorney fees on appeal, the appellants are required to
repost a bond to cover that amount, and thus the district court did not err. The
district court did not specify exactly which Code section, rule, or case it relied
upon in granting the motion, but cited those raised in Mary Ann‟s motion,
Schaffer, 628 N.W.2d at 11 (which discusses Iowa Code sections 572.15 and
572.32), Iowa Rules of Appellate Procedure 6.7 and 6.9, and Iowa Code chapter
625A, in support of its ruling. We discuss each authority in turn.
A. Mechanic’s Lien Bond.
The related underlying action was for the enforcement of a mechanic‟s
lien. A mechanic‟s lien is purely statutory in nature. Griess & Ginder Drywall,
Inc. v. Moran, 561 N.W.2d 815, 816 (Iowa 1997). Mechanic‟s lien statutes are
liberally construed to promote restitution, prevent unjust enrichment, and assist
parties in obtaining justice. Carson v. Roediger, 513 N.W.2d 713, 715 (Iowa
1994).
The property owners in the related underlying case filed their original bond
with the district court clerk pursuant to Iowa Code section 572.15.
Section
572.15 provides, in relevant part:
A mechanic‟s lien may be discharged at any time by the owner . . .
[by] filing with the clerk of the district court of the county in which
the property is located a bond in twice the amount of the sum for
which the claim for the lien is filed, with surety or sureties, to be
approved by the clerk, conditioned for the payment of any sum for
which the claimant may obtain judgment upon the claim.
(Emphasis added.) Section 572.32(1) provides that, in an action to enforce a
mechanic‟s lien, a prevailing plaintiff who furnished labor and materials directly to
the defendant may be awarded reasonable attorney fees. The Iowa Supreme
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Court has held that section 572.32 provides for both trial and appellate attorney
fees.
See Schaffer, 628 N.W.2d at 23.
Thus, reading sections 572.15 and
573.32 together, the bond posted is for the payment of any sum for which the
claimant may obtain judgment upon the claim, including trial and appellate
attorney fees.
Here, the problem lies in the fact that all the cash bond proceeds were
dispersed before the appeal was filed.
The proceeds satisfied Mary Ann‟s
judgment, her trial attorney fees and costs, and court costs, with the balance
remitted to Darlo and Travis. This distribution was precisely the relief Mary Ann
requested in her proposed ruling to the district court. She did not propose or
request the court to order retention of a portion of the bond to satisfy any
potential appellate attorney fees she may be entitled to in the event the
appellants appealed the district court‟s ruling. She did not propose or request the
court to order that disbursement of the bond proceeds be delayed until after the
time for appeal had expired or until after final judgment on appeal was rendered.
Although Mary Ann could have employed the cash bond to secure her appellate
attorney fees, we find no language in section 572.15 or 572.32 allowing
resurrection of the bond to cover her potential appellate attorney fees once the
original bond proceeds were disbursed to satisfy her judgment. Nor do we find
any provision in the mechanic‟s lien statute authorizing a separate appeal bond
under the circumstances presented in this case. Additionally, although Schaffer
recognizes appellate attorney fees are permitted under section 572.32, the
decision does not establish or provide authority for an extra-statutory appeal
bond to secure appellate attorney fees.
Schaffer, 628 N.W.2d at 23.
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Consequently, under the facts of this case, we find no support for the district
court‟s grant of Mary Ann‟s application for an appellate bond under sections
572.15 or 572.32, or Schaffer.
B. Supersedeas Bond.
A supersedeas bond is defined as “[a]n appellant’s bond to stay execution
on a judgment during the pendency of the appeal.” Black‟s Law Dictionary 171
(7th ed. 1999) (emphasis added). It “is a method of keeping creditors at bay to
maintain the status quo until an appeal is decided.” Edge v. Harsha, 334 N.W.2d
741, 742 (Iowa 1983). Iowa Rule of Appellate Procedure 6.7(1) provides for the
filing of a supersedeas bond by an appellant in order to “stay proceedings under
a judgment” on the condition that the appellant “will satisfy and perform the
judgment if affirmed” including “all costs and damages adjudged against
appellant on the appeal . . . .”
Under the plain language of rule 6.7, a
supersedeas bond is to be employed exclusively by an appellant.
Rule 6.9
provides that upon affirmance from an appellate court, the case may be
remanded “to the district court for the determination of such damages and costs
and entry of judgment on the bond.”
“In Iowa an appellee may invoke judicial power to enforce a decree while
its correctness is being appealed, unless a supersedeas bond is filed.” Lutz v.
Darbyshire, 297 N.W.2d 349, 352 (Iowa 1980). It is clear that a supersedeas
bond is a method to be used solely at appellant‟s discretion. Thus, it is improper
for an appellee to apply to the court to require an appellant to obtain a
supersedeas bond, and it is improper for the court to require an appellant to
obtain such a bond.
The appellee‟s remedy is to simply execute upon the
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judgment. If an appellant wishes to stave off execution of the judgment, the
appellant may obtain and file a supersedeas bond.
Iowa Rule of Appellate Procedure 6.8 limits the district court to a review of
a clerk‟s actions.4 Here, there had been no action on the part of the clerk. The
previous bond had been disbursed pursuant to court order. No bond was on file
with the clerk at the time the appellant‟s application was filed. There was no
action for the court to review.
At Mary Ann‟s request the judgment was satisfied with the bond proceeds.
Thereafter, she had no judgment upon which to execute. When appellants filed
their notice of appeal, there was no judgment for them to stave off. There was
nothing to stay.
inapplicable.
Issuance of a supersedeas bond was therefore moot and
In any event, had there been a judgment pending against
appellants, it would be their decision, not Mary Ann‟s, to seek the protection of a
bond. Accordingly, we find no support for the district court‟s grant of Mary Ann‟s
application for bond on appeal under Iowa Rules of Appellate Procedure 6.7 and
6.9.
C. Iowa Code Chapter 625A.
Iowa Code chapter 625A is entitled “Appellate Court Procedure.” Section
625A.12 provides that “[t]he appellant may be required to give security for costs
under the same circumstances and upon the same showing as plaintiffs in civil
actions in the inferior court may be.” Under this section in the Code, the code
editor refers one to “Cost bond, chapter 621.” Section 621.1, “bond for costs,”
4
Rule 6.8 provides, in part: “If any party to an appeal is aggrieved by the clerk‟s
approval of, or refusal to approve, a supersedeas bond tendered by appellant, the party
may apply to the district court . . . to review the clerk‟s action.”
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sets forth the requirements for obtaining security for costs in the district court.
Under section 621.1, a “defendant at anytime before answering, may file a
motion to require plaintiff to file a bond for costs if the plaintiff” or a party bringing
the action “is a nonresident of Iowa or a private or foreign corporation.” Barry A.
Lindahl, 12 Iowa Practice Civil & Appellate Procedure § 40.18, at 426 (2008).
“The defendant must make and file an affidavit stating that the defendant has a
good defense in whole or in part to the claim made.” Id. Upon such filing, the
nonresident plaintiff or party, “must file in the clerk‟s office a bond with sureties to
be approved by the clerk, in an amount to be fixed by the court, for the payment
of all costs which may legally be adjudged against plaintiff.” Iowa Code § 621.1.5
Thus, applying section 621.1 to section 625A.12, an appellant may be required to
give security for costs if the appellant is a nonresident of the state and the
appellee files an affidavit stating that the appellee has a good defense in whole
or in part to the claim made.
Here, appellants were residents of Iowa, so section 625A.12 has no
application to this case. Additionally, Mary Ann did not file an affidavit in support
of her application. Without the requisite circumstances and showing, we find no
support for the district court‟s grant of Mary Ann‟s application for bond on appeal
bond under section 625A.12.6
5
Section 621.6 provides that a motion for additional security may be filed.
Additionally, we question whether the district court had the authority to require a bond
for costs on appeal under section 625A.12. Chapter 625A is entitled “Appellate Court
Procedure,” necessarily implying its provisions are limited to actions by and before the
appellate courts. Section 625A.12 makes no provision for district court action. Although
district courts regularly determine the amount of the appellate attorney fees to award,
see Lehigh Clay Prods, Ltd. v. Iowa Dep’t of Transp., 545 N.W.2d 526, 528 n.2 (Iowa
1996), it is the appellate courts that determine whether appellate attorney fees should be
awarded. See Fed. Land Bank of Omaha v. Woods, 480 N.W.2d 61, 70 (Iowa 1992).
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IV. Conclusion.
Because we find the district court‟s grant of Mary Ann‟s application for
bond on appeal to secure her appellate attorney fees was not supported by Iowa
Code sections 572.15, 572.32, 625A.12 and Iowa Rules of Appellate Procedure
6.7 and 6.9, or Schaffer, we conclude the court improperly applied the law in
granting Mary Ann‟s application and thus acted illegally. We therefore sustain
the writ of certiorari.7
WRIT SUSTAINED.
7
Because our determination of this issue is dispositive, we need not and do not address
the appellant‟s additional claim.
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