BRIAN FOSTER, Plaintiff-Appellee, vs. CURTIS SCHWICKERATH, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-946 / 09-0797
Filed December 30, 2009
BRIAN FOSTER,
Plaintiff-Appellee,
vs.
CURTIS SCHWICKERATH,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Howard County, Margaret L.
Lingreen, Judge.
Defendant appeals from the district court‟s entry of summary judgment in
favor of plaintiff. AFFIRMED.
Nathaniel W. Schwickerath of Schwickerath, P.C., New Hampton, for
appellant.
Joseph P. Braun of Elwood, O‟Donohoe, Braun & White, L.L.P., Cresco,
for appellee.
Considered by Sackett, C.J., and Vaitheswaran and Danilson, JJ.
2
DANILSON, J.
This case involves the efficacy of a notice to terminate a farm lease under
Iowa Code section 562.5 (2007). On or about April 24, 2006, plaintiff Brian
Foster and defendant Curtis Schwickerath entered into a written farm lease,
under which Foster leased approximately 252 acres of farmland in Howard
County to Schwickerath. Although the lease term was identified as one year,
Schwickerath continued to lease the land during the 2007 and 2008 crop years.
On or about August 6, 2008, Schwickerath received, by certified mail, a written
“Lease Termination Notice” from Foster, stating: “This letter will serve as formal
notification that your lease will terminate effective December 31, 2008, on the
farm located at: . . . .”
Thereafter, in a letter dated September 19, 2008,
Schwickerath informed Foster that the notice of termination did not comply with
section 562.5 because it did not fix the date of termination of the lease as
March 1, 2009.
On October 22, 2008, Foster filed a petition for declaratory judgment
requesting the district court to declare that the letter was a valid termination of
the farm tenancy.
Schwickerath answered and filed a motion for summary
judgment, which the court denied. Foster filed a motion for summary judgment
on March 17, 2009. After a hearing, the court granted the motion. Schwickerath
now appeals.1 We review the district court‟s summary judgment ruling for the
1
Before we can reach the merits of the appeal, we must address Foster‟s
contention that this matter is moot. “„An issue is moot if it no longer presents a
justiciable controversy because it is has become academic or nonexistent.‟ The test is
whether the court‟s opinion would be of force or effect in the underlying controversy.” In
re D.C.V., 569 N.W.2d 489, 494 (Iowa 1997) (citations omitted). Foster contends a
decision by this court would have no force or effect in the declaratory judgment action
because, even if a lease existed, the planting time for the 2009-10 lease year took place
3
correction of errors at law. Iowa R. App. P. 6.907; Lobberecht v. Chendrasekhar,
744 N.W.2d 104, 106 (Iowa 2008).
Iowa Code section 562.5 provides, in relevant part: “In the case of a farm
tenancy, the notice must fix the termination of the farm tenancy to take place on
the first day of March . . . .” Section 562.6 provides in part that a farm tenancy
that continues beyond the terms of the original lease shall terminate on March 1
if written notice is served upon either party or the party‟s successor as provided
in section 562.7.
Section 562.7 sets forth several specific procedures to be used with
regard to service of notice of termination of farm tenancies (must be delivered on
or before September 1, certified mail or signed acceptance, etc.). As the district
court correctly noted, our supreme court has determined that the provisions of
section 562.6 and 562.7 are mandatory, rather than directory.
See Buss v.
Gruis, 320 N.W.2d 549, 551 (Iowa 1982) (emphasis added). In this case, there is
no dispute that the manner of service of Foster‟s notice of termination was in
compliance with section 562.7.
Over the years, our supreme court has frequently addressed the
effectiveness of farm tenancy termination notices; however, few cases have
in spring 2009, and the fall harvest will have been completed by the time our decision is
filed.
We might agree, were it not for the fact that Schwickerath may be entitled to seek
supplemental relief for his lost right to possession for the 2009 crop year in the event this
court determined the notice to terminate was not effective. (Schwickerath was not
allowed to access the property after April 2008.) Thus, the controversy before the
district court implicated more than Foster‟s bare right of possession to the leased
premises. Under the circumstances, we cannot conclude the validity of the summary
judgment ruling is “a mere abstraction”; rather it involves “real, present questions,
involving actual interests and rights of the parties.” Manning v. Heath, 206 Iowa 952,
954, 221 N.W. 560, 561 (1928) (citations omitted). We therefore turn to the merits of the
appeal.
4
focused on the issue presented here.2 In Welch v. Keeran, 233 Iowa 499, 50205, 7 N.W.2d 809, 810-12 (1943), our supreme court addressed a similar
situation to the issue presented in the instant case. In Welch, a landlord sent a
letter to the tenant terminating a farm lease that stated as follows:
I am sorry I cannot accommodate you by renting you my place for
another year but I have had a better offer of shares of the crops
raised next year, and other things considered think best to have a
change. You people have had it or the use of it for a long time and I
don't think you should feel hard on me if I have a change. I will have
a contract to that effect for the year 1942. Hope you may find a
place to suit you better.
Welch, 233 Iowa at 502, 7 N.W.2d at 810. The letter was timely mailed and met
the other statutory notice requirements then in effect. See Iowa Code §§ 10161,
10162 (1939) (repealed 1943). The court in Welch determined that although the
letter did not provide that the lease would terminate on March 1,
[The letter] was sufficient under the statute. Its purpose was simply
to notify the tenant of the fact that the landlord did not intend to
renew the lease. Such notice is not jurisdictional and is in the
category of notices given to convey information.
Id. at 504-05, 7 N.W.2d at 811-12; see also Bates v. Bates, 237 Iowa 1408,
1410, 24 N.W.2d 460, 462 (1946) (determining the landlord‟s demand that the
tenant “quit, surrender and deliver to me the possession of the premises now
occupied by you” was a declaration and a notice of termination, and was
“inconsistent with continuation of the tenancy”). The court therefore concluded
that the tenant was not “entitled to possession of the premises for the year
following March 1, 1942.” Welch, 233 Iowa at 505, 7 N.W.2d at 812.
2
The majority of farm lease cases have dealt with whether notices have passed muster
under the stringent service requirements of sections 562.6 and 562.7. See, e.g., Buss,
320 N.W.2d at 550-52 (giving a detailed summary of prior cases that have evaluated a
notice‟s effectiveness under sections 562.6 and 562.7).
5
However, Welch preceded section 562.5 and various other amendments
to the statutory scheme in Iowa Code Chapter 562. Additionally, our supreme
court has since concluded with regard to sections 562.6 and 562.7, that the
termination of farm tenancies and the manner of service of the notice are
mandatory, not directory. Leise v. Scheibel, 67 N.W.2d 25 (Iowa 1954); Buss,
320 N.W.2d at 549.
In Buss, the court stated:
To reduce uncertainty attending the termination of tenancies by
informal notification, the General Assembly has provided the
precise ways in which notice must be given. Section 562.6
provides that the tenancies “shall” continue unless written notice is
given by one party to the other, and section 562.7 provides that
notice “shall” be given as follows—specifying the three ways.
Buss, 320 N.W.2d at 552. The court went on to conclude:
We reaffirm the view stated in Leise that the provisions of section
562.6 and section 562.7 are mandatory. To hold otherwise would
undo the effort of the General Assembly to make these notices
definite and certain, and would return us to jousts between
landlords and tenants as to whether notice was in fact given when
informal notification was used.
Id.
Our supreme court also faced an issue regarding the propriety of a notice
to terminate a farm tenancy subsequent to Welch in Kuiken v. Garrett, 243 Iowa
785, 805-06, 51 N.W.2d 149, 161 (1952), superseded by statute, Iowa Code
§ 668A.1, as recognized in Hockenberg Equip. Co. v. Hockenberg’s Equip. &
Supply Co., 510 N.W.2d 153, 159 (Iowa 1993). In Kuiken, our supreme court
stated in part:
No other written notice in any other manner complying with sections
562.6 and 562.7 was given . . . . It did not profess to terminate the
tenancy on March 1 next, but attempted to end it on December 1,
6
1947, and was not served . . . as required . . . . The court was
justified in telling the jury that there had been no proper notice of
termination of tenancy . . . .
Kuiken, 243 Iowa at 806, 51 N.W.2d at 161. However we distinguish Kuiken,
Leise, and Buss as their holdings do not directly determine the sufficiency or
validity of a notice that is timely and properly served but fails to recite to proper
termination date.
We acknowledge that the plain language of section 562.5 requires that the
termination notice “must fix the termination of the farm tenancy to take place the
first day of March, except in the case of mere croppers.” Section 562.5 does not,
however, state the effect of a notice that recites a wrong termination date.
In this case, the district court, citing Welch, determined that section 562.5
is directory, not mandatory; and therefore, that the notice is only informational
and not jurisdictional.
Accordingly, the court concluded the notice given by
Foster in this case was effective. We reach the same conclusion to the extent
that the notice was effective, but we determine that the tenancy terminated on
March 1.
Here, Foster gave Schwickerath notice of his intent to terminate the farm
tenancy, the notice was in writing, and it was properly served upon
Schwickerath—all mandatory requirements of sections 562.6 and 562.7,
pursuant to Buss and Leise. Although Schwickerath‟s argument that a notice
should be nullified where the wrong termination date is provided is appealing, we
conclude that technical accuracy in the written notice is not required.
We
determine, as have other courts, that a wrong termination date does not give
cause to nullify the notice.
7
For example, in Steffen v. Paulus, 465 N.E.2d 1021, 1024-25 (Ill. App. Ct.
1984), the court reasoned:
Under the traditional common law rule, a notice to quit must
terminate a periodic tenancy on the last day of the tenancy, and a
notice to quit any earlier will be ineffective. Finkelstein v. Herson,
26 A. 688 (N.J. Sup. Ct. 1893).
A notice that demanded
possession even three days early, therefore, was void at common
law. Gill v. Gill, 161 Ill. App. 221 (Ill. App. Ct. 1911). The rule
served no purpose other than the common law‟s penchant for
formalism and procedural precision. Harry’s Village, Inc. v. Egg
Harbor Township, 446 A.2d 862, 867 (N.J. 1982).
The traditional rule, however, has been abandoned. See,
e.g., Mercer County Agriculture Society v. Barnhardt, 459 A.2d 811
(Pa. Super. Ct. 1983); S.D.G. v. Inventory Control Co., 429 A.2d
394 (N.J. Super. Ct. App. Div. 1981); Kester v. Disan Engineering
Corp., 591 P.2d 344 (Okl. Civ. App. 1979). It seems unduly
technical to deprive a notice to terminate a periodic tenancy of any
legally operative effect solely because the notice designates as the
termination date a date on which the tenancy cannot be terminated.
Restatement (Second) of Property § 1.5, at 36 (1977). The
Restatement provides the proper rule to be followed: “In the
absence of controlling provisions in the lease . . . if the date stated
in the notice for termination is not the end of a period or is too short
a time before the end of a period, the notice will be effective to
terminate the lease at the earliest possible date after the date
stated.”
The result of this rule is both fair and reasonable. The
purpose underlying a notice of requirement is to provide the parties
with sufficient time to adjust their affairs before the actual
termination. Harry’s Village, Inc., 446 A.2d at 867. If the notice
informs the tenant that the landlord wants him to quit the premises,
then the question should not be the validity of the notice, but rather,
how soon the tenant must leave. T.W.I.W., Inc. v. Rhudy, 630 P.2d
753, 757 (N.M. 1981).
More recently, two other courts have also reached similar conclusions
where a notice to terminate a farm tenancy provided an improper termination
date. Orebaugh v. Leatherwood, 8 P.3d 55, 58 (Kan. Ct. App. 2000) (concluding
that notwithstanding an early termination date of August 1 set forth in the notice,
the tenancy should be deemed terminated effective March 1 as controlled by
8
Kansas law); see also Jansen v. Probst, 922 S.W.2d 43, 48-49 (Mo. Ct. App.
1996) (finding a notice of termination given in May validly terminated tenancy at
end of year, notwithstanding the landlord‟s ineffective demand for possession in
June).
Accordingly, we conclude that the amendments to the statutory scheme in
Iowa Code chapter 562 and the rulings in Kuiken, Leise, and Buss do not nullify a
notice of termination of farm tenancy that recites a wrong termination date. We
find that the notice in this case clearly expressed Foster‟s intent to terminate the
lease, fulfilled the mandatory notice requirements under sections 562.6 and
562.7, and substantially complied with section 562.5. Notwithstanding the written
notice‟s statement that the lease shall terminate on December 31, we determine
that Iowa law controls, and the lease terminated on March 1 of the following year.
Iowa Code § 562.6.
For these reasons, we conclude the notice in this case was valid and we
affirm the grant of summary judgment in favor of Foster.
AFFIRMED.
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