No. 4-109 / 03-0674Court of Appeals of Iowa.
Filed March 10, 2004
Appeal from the Iowa District Court for Wapello County, Richard J. Vogel, Judge.
The Iowa Department of Transportation appeals, in advance of final judgment, from an order of the district court denying its motion to dismiss. REVERSED AND REMANDED.
Thomas Miller, Attorney General, and Mark Hunacek and Carolyn Olson, Assistant Attorneys General, for appellant.
Matthew Cunningham of Walter Law Office, L.L.P., Ottumwa, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
HECHT, J.
The Iowa Department of Transportation (DOT) appeals, in advance of final judgment, from the district court’s denial of its motion to dismiss. We reverse and remand to the district court for an order of dismissal.
Background Facts and Proceedings.
Charles Shafer is a landowner whose property in Wapello County was condemned by the DOT. After the Wapello County Compensation Commission met to assess damages, the County Sheriff’s office mailed a Notice of Appraisement of Damages and Time for Appeal to Shafer on January 14, 2003. Shafer found the assessment of damages inadequate and sought to appeal the award to the district court. On February 14, 2003, he filed the notice of appeal with the district court. He mailed the notice to the General Counsel of the DOT on February 14, along with a copy to the Story County Sheriff with directions for service upon the General Counsel. However, the papers were not served at that time, and actual service was not made until April 15, 2003.
After receiving the notice of appeal, the DOT moved to dismiss the petition, asserting Shafer had failed to timely file or properly serve the notice of appeal of the condemnation award. The district court overruled the motion. The DOT applied for, and was granted, interlocutory appeal of this ruling from our supreme court.
On appeal, the DOT urges that because Shafer’s appeal was neither filed in the district court, nor served, in a timely manner, the condemnation appeal should have been dismissed. Shafer responds that because the notice of appraisement was signed by a deputy sheriff, and not the sheriff, as required by statute, that notice was ineffective. Because it was ineffective, he asserts, his notice of appeal was timely. Shafer also asserts the service of the notice of appeal was timely because the court granted an extension for good cause.
Scope of Review.
We review a district court’s ruling on a motion to dismiss a condemnation appeal for correction of errors of law. Burnham v. City of West Des Moines, 568 N.W.2d 808, 809 (Iowa 1997).
Timeliness of Appeal.
Iowa Code section 6B.18 (2003) provides for the methods by which an individual is given notice of the appraisement of damages in an eminent domain proceeding, and the method by which an individual may appeal such an appraisement. In pertinent part, it reads:
1. After the appraisement of damages has been delivered to the sheriff by the compensation commission, the sheriff shall give written notice, by ordinary mail, to the condemnor and the condemnee of the date on which the appraisement was made, the amount of the appraisement, and that any interested party may, within thirty days from the date of mailing the notice of the appraisement of damages, appeal to the district court. . . .
2. An appeal of appraisement of damages is deemed to be perfected upon filing of a notice of appeal with the district court within thirty days from the date of mailing the notice of appraisement of damages. The notice of appeal shall be served . . . in the same manner as an original notice within thirty days from the date of filing this notice of appeal unless, for good cause shown, the court grants more than thirty days.
Iowa Code § 6B.18.
Here, there is no dispute Shafer’s notice of appeal was filed with the district court thirty-one days after the notice of appraisement was mailed to Shafer, clearly beyond the time frame provided in section 6B.18(2). Shafer, however, maintains his late filing was excused because the sheriff failed to personally sign the notice of appraisement of damages. Shafer asserts the chief deputy sheriff could not execute a valid notice, and that his untimely appeal may, essentially, be excused.
Iowa Code section 4.1(31) provides that “[i]n the construction of statutes . . . [t]h term “sheriff” may be extended to any person performing the duties of the sheriff, either generally or in special cases.” (Emphasis in original). We find persuasive the State’s contention that this provision authorized Deputy Sheriff Mark Miller to act on behalf of Sheriff Don Kirkendall in this case. Based on the authority provided under this code section, we conclude the statutory directive that the sheriff mail notice of the appraisement of damages has been fully and literally complied with.
Furthermore, our supreme court has held that “[w]hile statutory provisions regulating the exercise of eminent domain must be strictly complied with . . . this does not necessarily mean literal compliance with the notice statute is required; substantial conformity is sufficient.” S.M.B. Invs. v. Iowa-Illinois Gas Elec. Co., 329 N.W.2d 635, 637 (Iowa 1983) (citations omitted). In SMB Investments our supreme court rejected the claim a notice of condemnation was ineffective merely because it failed to specify that the property interest sought by the defendant was an “easement” rather than a “right of way.” Id. Further, In Norgard v. Iowa Dep’t of Transp., 555 N.W.2d 226, 229 (Iowa 1996), our supreme court determined a notice of appraisement was effective even though it did not show the date of appraisement and did not indicate the date it was signed or sent. Likewise, we conclude the notice of appraisement and time for appeal in this case, which fully and clearly informed Shafer both of his right to appeal and the time in which the appeal must be taken, substantially conformed with the requirements of section 6B.18.
We note Shafer makes no allegation the fact that the chief deputy sheriff rather than the sheriff signed the notice in any manner prejudiced him or misled him into missing the deadline for filing the notice of appeal. Rather, the fact he filed the notice of appeal on day thirty-one provides strong indication he was fully informed of the applicable time limit, but that he just missed it. Moreover, the signature block of the notice signed by the sheriff’s deputy clearly disclosed that the notice was given by “Don C. Kirkendall, Sheriff of Wapello, County, Iowa.” Thus, a reasonable person could not have been confused as to the source of the notice.
In conclusion, Shafer’s notice of appeal was not timely filed. This fact is not excused by the fact Chief Deputy Sheriff Mark Miller, rather than Sheriff Don Kirkendall, signed the notice. The district court thus erred in denying the motion to dismiss. Because we have concluded Shafer’s notice of appeal was untimely, we need not address the DOT’s argument Shafer’s notice of appeal was not timely served. We reverse the district court’s order and remand for an order of dismissal.
REVERSED AND REMANDED.