GLENWOOD PARK, L.C., JACK GETHMANN, and TORDSEN FARM MANAGEMENT, INC., Plaintiffs-Appellants, vs. CITY OF MARSHALLTOWN, IOWA, Defendant-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-802 / 09-0172
Filed November 12, 2009
GLENWOOD PARK, L.C., JACK GETHMANN,
and TORDSEN FARM MANAGEMENT, INC.,
Plaintiffs-Appellants,
vs.
CITY OF MARSHALLTOWN, IOWA,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Marshall County, William J.
Pattinson, Judge.
Plaintiffs appeal from an order dismissing their appeal of a condemnation
award. AFFIRMED.
Kathryn S. Barnhill and Jonathan M. Barnhill of Barnhill & Associates,
P.C., West Des Moines, for appellants.
David P. McManus of Sole, McManus, Pearson & Willems, P.C., Cedar
Rapids, for appellee.
Considered by Doyle, P.J., Mansfield, J., and Zimmer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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DOYLE, J.
Plaintiffs appeal from an order dismissing their appeal of a condemnation
award.
The City of Marshalltown (the City) condemned about an acre of
unimproved land from its owner, Glenwood Park, L.C., to extend a preexisting
street. Jack Gethmann is the principal of Glenwood Park, L.C., and Tordsen
Farm Management, Inc. is the leasing manager of a farm that included the land
in question. On June 4, 2008, a compensation commission awarded $12,604 in
compensation for the land and $2396 for the condemnee’s attorney fees and
costs. Two days later, Jonathan Barnhill, as attorney for Jack Gethmann and
Glenwood Park, L.C., sent by ordinary mail a notice of appeal to the city attorney,
the property’s mortgagee, and to the Marshall County Auditor. He also faxed a
copy to the Marshall County Sheriff. The notice was filed with the clerk of court
on June 26, 2008, within the thirty-day limitation period allowed by Iowa Code
section 6B.18(2) (2007). A file-stamped copy of the notice was mailed to the
sheriff with no directions for service and no advance for service fees. As a result,
the sheriff took no action. Another copy of the notice was faxed to the sheriff on
July 22, 2008, again without service instructions or fees. The sheriff took no
action for want of instructions.
On July 25, 2008, attorneys Kathryn Barnhill and Jonathan Barnhill filed
with the clerk of court a petition on behalf of Glenwood Park, L.C., Jack
Gethmann, and Tordsen Farm Management, Inc. requesting the court declare
the condemnation invalid or determine a just value which would compensate
plaintiffs for the loss of the property. Ultimately, another copy of the notice of
appeal, together with the petition and original notice, were provided to the sheriff,
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with directions to serve only the City by service on its administrator. Sufficient
fees were included to serve just the City. The papers were served on the City’s
administrator, but it does not appear that the mortgagee or county auditor were
served as required under Iowa Code section 6B.18(2). The City filed a motion to
dismiss under Iowa Rule of Civil Procedure 1.421(1)(a), claiming the court lacked
subject matter jurisdiction because the property owner had not served the notice
of appeal within thirty days of its filing with the clerk of court, as required by
section 6B.18(2). The district court granted the motion to dismiss finding that the
plaintiffs failed to appropriately serve their notice of appeal on the City or the
lienholders within the time allowed by section 6B.18(2).
Plaintiffs now appeal. Our review is for errors of law. Iowa R. App. P.
6.907; Burnham v. City of West Des Moines, 568 N.W.2d 808 (Iowa 1997).
Having reviewed the record, we agree that plaintiffs failed to serve their
notice of appeal within the time allowed under section 6B.18(2), and they showed
no good cause to warrant extension of the service deadline.
Substantial
compliance with the statutory procedure for condemnation appeals is required to
confer jurisdiction on the district court.
Burnham, 568 N.W.2d at 811.
The
district court’s opinion identifies and considers all the issues presented, and we
approve of the reasons and conclusions in that opinion. Iowa Ct. R. 21.29(d);
see also Iowa R. App. P. 6.1203 (a) & (d).
We do not consider the additional arguments discernible from plaintiffs’
brief as they were not presented to the district court. “[I]ssues must ordinarily be
both raised and decided by the district court before we will decide them on
appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).
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The City filed “Motions for Sanctions, Consolidate and Reserve
Jurisdiction” in this appeal. The motion is denied.
AFFIRMED.
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