Bill Fennelly, Scott County Treasurer Vs. A-1 Machine & Tool Co.

• Court: Supreme Court of Iowa
• Decided: October 6, 2006
• Docket: 73 / 04-1232
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 73 / 04-1232

Filed October 6, 2006

BILL FENNELLY, SCOTT COUNTY TREASURER,

Appellant,

vs.

A-1 MACHINE & TOOL CO.,

Appellee. ________________________________________________________________________ Appeal from the Iowa District Court for Scott County, John Nahra,

Judge.

The Scott County Treasurer appeals from an adverse summary

judgment holding that some of his claims for delinquent property taxes

were barred by the statute of limitations, and the remaining claims failed

due to failure to perform a condition precedent. AFFIRMED IN PART,

REVERSED IN PART, AND REMANDED.

Thomas C. Fritzsche, Assistant County Attorney, for appellant.

John T. Flynn of Brubaker, Flynn & Darland, P.C., Davenport, for

appellee. 2 CADY, Justice.

In this appeal, we must primarily decide if an action by a county

treasurer to collect delinquent property taxes is subject to the statute of

limitations, and if a tax sale certificate is a condition precedent to such

an action when the parcels for which taxes are delinquent consist of

machinery and equipment. The district court granted summary

judgment to the taxpayer, and the treasurer appealed. Upon our review,

we conclude the action is not barred by the statute of limitations, and a

tax sale certificate was not a condition precedent to bringing this action.

We affirm the district court in part, reverse in part, and remand for

further proceedings.

I. Background Facts and Proceedings

A-1 Machine & Tool Co. (“A-1”) is an Iowa corporation. It owned or

leased certain industrial metalworking machinery, which was treated as

a taxable real property parcel by the Scott County Assessor from 1989 to

2001. The Scott County Auditor levied taxes on the parcel each of those

years. A-1 never paid the taxes. Its president, Alvin Roggenkamp,

claimed the corporation never received any tax bills or notices that taxes

were owed. The taxes were deemed delinquent by the Scott County

Treasurer, Bill Fennelly (the “Treasurer”). He eventually obtained a tax

sale certificate for the taxes from 1989 to 1996, but did not obtain a

certificate for the taxes from 1997 to 2001.

The Treasurer did not file an action to collect the delinquent taxes

until July 18, 2003. At that time, he filed a petition in district court to

recover a personal judgment against A-1 under Iowa Code section 445.3

(2003).

A-1 answered the petition and alleged a variety of defenses to the

claim. These defenses included: (1) the property composing the taxed 3 parcel was personal property, not real property, and thus the

Treasurer could not collect taxes on the parcel; 1 (2) a personal judgment

1In Iowa, all real property not exempt is subject to property tax. Iowa Code § 427.13. Importantly, “real property,” for purposes of taxation, encompasses more than is covered by the traditional definition of real property—land and fixtures. See Black’s Law Dictionary 1234 (7th ed. 1999) (“Land and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land.”). The statutory definition of “real property” encompasses these things, see Iowa Code § 427A.1(1)(a) (“Land and water rights.”), (b) (“Substances contained in or growing upon the land . . . .”), (c) (“Buildings, structures or improvements, any of which are constructed on or in the land, attached to the land . . . .”), (d) (“Buildings, structures, equipment, machinery or improvements, any of which are attached to the buildings, structures, equipment, machinery or improvements defined in paragraph “c” . . . .”), but it also includes other items, such as “[m]achinery used in manufacturing establishments,” id. § 427A.1(1)(e), and “computers,” id. § 427A.1(1)(j)(1). The latter two categories of property have had a special valuation scheme since 1995, see id. § 427B.17, but they are still defined as real property. Personal property is not subject to property tax in Iowa. See id. § 427A.2.

The County claimed in its petition that A-1 owed delinquent taxes on a parcel consisting of “machinery and equipment.” In its answer, A-1 claimed, as an affirmative defense, that the machinery and equipment described by the County was not taxable as real property because it was not “attached” to the building. See id. § 427A.1(1)(d) (“Buildings, structures, equipment, machinery or improvements, any of which are attached to the buildings, structures, equipment, machinery or improvements defined in paragraph “c” . . . .” (Emphasis added.)); id. § 427A.1(2) (“ ‘[A]ttached’ means any of the following: a. Connected by an adhesive preparation. b. Connected in a manner so that disconnecting requires the removal of one or more fastening devices, other than electric plugs. c. Connected in such a manner so that removal requires substantial modification or alteration of the property removed or the property from which it is removed.”); id. § 427A.1(3) (“Notwithstanding the definition of “attached” in subsection 2, property is not “attached” if it is a kind of property which would ordinarily be removed when the owner of the property moves to another location.”). The County then shifted gears in its motion for summary judgment and argued that even if this were so, the property making up the parcel was still taxable as “computers” under section 427A.1(1)(j). The definition of “computers” does not require the computer to be attached to the land or building in order to be taxable as real property. Id. § 427A.1(1)(j).

We note these arguments must usually be made initially before the board. See id. § 441.37(1)(c) (stating a taxpayer may protest the assessment of property to the board of review on the grounds that “the property is not assessable, is exempt from taxes, or is misclassified”); Read v. Hamilton County, 231 Iowa 1255, 1265, 3 N.W.2d 597, 602 (1942) (“ ‘The failure of a person aggrieved by the assessment of his property to appear before the board of review and make complaint waives his right to subsequently complain of any irregularity in the listing and assessment thereof. The attempt of the county treasurer to collect a void tax may, however, be enjoined by a court of equity.’ ” (emphasis added) (quoting Griswold Land & Credit Co. v. Calhoun County, 198 Iowa 1240, 1242-44, 201 N.W. 11, 12 (1924))). We will refer to the property composing the subject parcel as machinery and equipment in this opinion. 4 could not be entered for delinquent taxes levied prior to 1992 because

the statute authorizing a personal judgment for delinquent property

taxes did not go into effect until that year; (3) all the Treasurer’s claims

were barred by laches and estoppel; (4) claims for taxes that became

delinquent prior to 1997 were barred by the statute of limitations; and (5)

the claims for the 1997–2001 taxes were barred because the Treasurer

did not first obtain a tax sale certificate.

Both parties filed motions for summary judgment. A-1 sought to

have the petition dismissed based on the strength of its defenses. The

Treasurer also sought to adjudicate the viability of the defenses so that

the action could proceed to judgment on its claim.

The district court granted summary judgment for A-1. It held the

claims by the Treasurer for taxes levied prior to 1997 were barred by the

five-year statute of limitations. It further held that the claims for taxes

after 1997 were required to be dismissed because the Treasurer failed to

obtain a tax sale certificate prior to instituting the action. Although

these holdings disposed of all of the tax claims, the district court further

held that the defense of laches was not available to A-1, and that the

estoppel defense asserted by A-1 relied upon disputed facts that made it

improper for adjudication by summary judgment. The district court

subsequently dismissed the petition.

The Treasurer appeals from the decision by the district court.

First, he claims a treasurer is immune from the statute of limitations

when bringing an action on behalf of a county to collect delinquent real

property taxes. Second, he claims a tax sale certificate is not a condition

precedent to an action for a personal judgment for delinquent property

taxes. Finally, he claims the district court erred by failing to adjudicate

the other defenses asserted by A-1 as requested in his motion for 5 summary judgment. A-1 requests the case be remanded to the district

court for consideration of common law attorney fees for defending the

action in district court and on appeal. Alternatively, A-1 requests an

award for appellate attorney fees.

II. Standard of Review

Our review in summary-judgment appeals is for correction of

errors at law. Stewart v. Sisson, 711 N.W.2d 713, 715 (Iowa 2006) (citing

Otterberg v. Farm Bureau Mut. Ins. Co., 696 N.W.2d 24, 27 (Iowa 2005)).

A motion for summary judgment should only be granted if, viewing the evidence in the light most favorable to the nonmoving party, “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Otterberg, 696 N.W.2d at 27 (quoting Iowa R. Civ. P. 1.981(3); citing

Wernimont v. Wernimont, 686 N.W.2d 186, 189 (Iowa 2004)).

We normally review the district court’s decision to award or not to

award attorney fees for an abuse of discretion. In re Marriage of Sullins,

715 N.W.2d 242, 247 (Iowa 2006). However, “[t]he standard of review for

an award of common-law attorney fees is de novo.” Wolf v. Wolf, 690

N.W.2d 887, 896 (Iowa 2005) (citing Hockenberg Equip. Co. v.

Hockenberg’s Equip. & Supply Co. of Des Moines, Inc., 510 N.W.2d 153,

158 (Iowa 1993)).

III. Statute of Limitations

Limitations on the time to bring an action in Iowa are generally

governed by chapter 614 of the Code. This chapter provides a number of

special limitation periods for various types of actions, and includes

section 614.1(4), which provides: 6 Actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially declared:

....

4. Unwritten contracts—injuries to property—fraud— other actions. Those founded on unwritten contracts, those brought for injuries to property, or for relief on the ground of fraud in cases heretofore solely cognizable in a court of chancery, and all other actions not otherwise provided for in this respect, within five years, except as provided by subsections 8 and 10.

Iowa Code § 614.1(4). 2 None of the special limitations provisions in

chapter 614 applies to a claim to collect delinquent taxes. See id.

(stating the limitations period, “except when otherwise specifically

declared” for “all other actions not provided for in this respect”). See

generally id. ch. 614. Additionally, the parties agreed that the chapter of

the Code governing tax collection does not contain a special limitations

period. See id. § 445.3 (stating an action by the county treasurer for the

collection of delinquent taxes “shall be in all respects commenced, tried,

and prosecuted to final judgment the same as provided for ordinary

actions”). See generally id. ch. 445. Without a special limitation period

provided by a statute, the “default” five-year statute of limitations found

in section 614.1(4) normally applies. See id. § 614.1(4) (stating “all other

actions not otherwise provided for” shall be brought within five years).

A-1 claims this statute precludes the Treasurer from bringing claims for

delinquent taxes levied prior to 1997.

The Treasurer asserts the statute of limitations does not apply to

this action under the doctrine of nullum tempus occurrit regi. The literal

translation of this ancient maxim is “no time runs against the King.”

2Subsections 8 and 10 govern claims for wages and malpractice, respectively,

and thus are not applicable in this case. Iowa Code § 614.1(8), (10). 7 Black’s Law Dictionary 1669 (7th ed. 1999). The doctrine originated

in the English common law as a declaration that the statute of

limitations could not be applied against the Crown. See United States v.

Thompson, 98 U.S. 486, 489 (1878) (“The rule of nullum tempus occurit

regi has existed as an element of the English law from a very early

period. . . . The common law fixed no time as to the bringing of actions.

Limitations derive their authority from statutes. The king was held never

to be included, unless expressly named. No laches was imputable to

him. These exemptions were founded upon considerations of public

policy. It was deemed important that, while the sovereign was engrossed

by the cares and duties of his office, the public should not suffer by the

negligence of his servants.”). The rationale for the doctrine was that

public rights should not be lost by the oversight or neglect of

governmental representatives to whom the rights have been entrusted.

Id. The idea was to make the sovereign immune from the statute of

limitations in order to preserve public rights. 51 Am. Jur. 2d Limitation

of Actions § 78, at 500–01 (2000).

The doctrine was promptly imparted to our American justice

system as one of the incidents of sovereignty, see Thompson, 98 U.S. at

489–90 (“When the colonies achieved their independence, each one took

these prerogatives, which had belonged to the crown; and when the

national Constitution was adopted, they were imparted to the new

government as incidents of the sovereignty thus created.”), and has been

a fixture in our jurisprudence in Iowa for over 130 years, see Des Moines

County v. Harker, 34 Iowa 84, 85 (1871) (“[W]e do not understand

counsel upon either side to controvert the propositions that a statute of

limitations will not apply to the State unless expressly so stated in it,

following the common-law maxim, ‘nullum tempus occurrit regi.’ ”). Thus, 8 in Iowa, it is well recognized that a statute of limitations does not run

against the state unless specifically provided by statute. 3 See, e.g., In re

3While the language of the default limitations period in section 614.1(4) applies

to “all other actions,” we must interpret the statute to determine whether the legislature intended to include actions by the state or a subdivision. See Worth County Friends of Agric. v. Worth County, 688 N.W.2d 257, 264 (Iowa 2004) (“Our primary concern in interpreting a statute is to determine and effectuate the legislature’s intent.” (citing Grundmeyer v. Weyerhaeuser Co., 649 N.W.2d 744, 750 (Iowa 2002))). The “all other actions” catchall has been in the statute since 1851. See Iowa Code § 1659(3) (1851) (“The following actions may be brought within the times herein limited respectively after their causes accrue, and not afterwards except when otherwise specially declared, that is to say: . . . Five years. Those founded on unwritten contracts, those brought for injuries to property or for relief on the ground of fraud in cases heretofore solely cognizable in a court of chancery, and all other actions not otherwise provided for in this respect.”). This court’s contemporaneous interpretations of the statute interpreted the phrase to exclude actions by the state, following the common-law doctrine of nullum tempus. See Schaer v. Webster County, 644 N.W.2d 327, 336 (Iowa 2002) (“We will not interpret a statute to be inconsistent with our common law principles absent a clear intent.” (citing State v. Carter, 618 N.W.2d 374, 377 (Iowa 2000); State v. Pace, 602 N.W.2d 764, 771 (Iowa 1999))); accord Rieff v. Evans, 630 N.W.2d 278, 285 (Iowa 2001) (“ ‘We are obliged . . . to interpret statutes in conformity with the common law wherever statutory language does not directly negate it.’ ” (quoting Rowedder ex rel. Cookies Food Prods., Inc. v. Lakes Warehouse Distrib., Inc., 430 N.W.2d 447, 452 (Iowa 1988))); Woodbury County v. City of Sioux City, 475 N.W.2d 203, 205 (Iowa 1991) (“[W]e are obligated ‘to interpret statutes in conformity with the common law wherever statutory language does not directly negate it.’ ” (Citation omitted.)); 2B Norman J. Singer, Statutes and Statutory Construction § 50:1, at 140 (6th ed. 2000) (“Absent an indication that the legislature intends a statute to supplant common law, the courts should not give it that effect.”).

Moreover, in over 130 years of our applying nullum tempus to our statute of limitations, the legislature has never taken action to abrogate this interpretive approach or otherwise contradict the doctrine or make the limitation period specifically applicable to the sovereign. See 2B Singer § 49:10, at 112 (“A number of decisions have held that legislative inaction following a contemporaneous and practical interpretation is evidence that the legislature intends to adopt such an interpretation.”). This is, of course, not conclusive of legislative intent, but it is some evidence. The fact that the legislature has left the statute of limitations untouched is, however, very persuasive evidence given that the legislature has been active in taking steps to put the state on the same level as private litigants by, for example, abrogating the doctrine of sovereign immunity except as provided in the Iowa Tort Claims Act. See Hawk v. Jim Hawk Chevrolet-Buick, Inc., 282 N.W.2d 84, 91 (Iowa 1979) (LeGrand, J., dissenting) (“Legislative inaction following an opinion placing judicial interpretation on a statute is some evidence that the legislature accepts our view as correct. When the legislative silence continues in an area of legislative activity, the presumption becomes stronger and stronger as time advances.”). This discussion, in part, reveals that the doctrine of nullum tempus in Iowa is actually a rule of statutory construction. 9 Peers’ Estate, 234 Iowa 403, 411, 12 N.W.2d 894, 898 (1944) (“[A]

general statute of limitations does not apply to the State of Iowa.” (citing

Des Moines County, 34 Iowa at 84; Kellogg v. Decatur County, 38 Iowa

524 (1874); Manatt v. Starr, 72 Iowa 677, 34 N.W. 784 (1887))); State ex

rel. Weede v. Iowa S. Utils. Co., 231 Iowa 784, 838, 2 N.W.2d 372,

400 (1942) (“It is well established that neither the plea of laches, nor that

of the statute of limitation is of any avail against the general

government.” (citing Young v. Charnquist, 114 Iowa 116, 86 N.W. 205

(1901))); Perley v. Heath, 201 Iowa 1163, 1165, 208 N.W. 721, 722 (1926)

(“Where an action is brought for the sole benefit of the state, . . . the

defense of the statute of limitations cannot be made.” (Citations

omitted.)); Payette v. Marshall County, 180 Iowa 660, 662, 163 N.W. 592,

593 (1917) (“[S]tatutes of limitations do not operate against the sovereign

or the government, whether state or federal.”).

________________________ We reject the approach of some other courts, see, e.g., Shootman v. Dep’t of Transp., 926 P.2d 1200, 1205 (Colo. 1996); State ex rel. Condon v. City of Columbia, 528 S.E.2d 408, 413 (S.C. 2000), that have held the abrogation of sovereign immunity alone was the death knell of nullum tempus. Nullum tempus is an independent doctrine from sovereign immunity, with independent supporting policy considerations. See Guaranty Trust Co. v. United States, 304 U.S. 126, 132, 58 S. Ct. 785, 789, 82 L. Ed. 1224, 1228 (1938) (“Regardless of the form of government and independently of the royal prerogative once thought sufficient to justify it, the rule is supportable now because its benefit and advantage extend to every citizen, including the defendant, whose plea of laches or limitation it precludes; and its uniform survival in the United States has been generally accounted for and justified on grounds of policy rather than upon any inherited notions of the personal privilege of the king.” (Citations omitted.)); City of Shelbyville v. Shelbyville Restorium, Inc., 451 N.E.2d 874, 875-76 (Ill. 1983) (“While sovereign immunity from liability and governmental immunity from statutes of limitation shared a philosophical origin and have the similar effect of creating a preference for the sovereign over the ordinary citizen, we do not believe that the abolition of the first of these doctrines requires abandonment of the second.”); Dep’t of Transp. v. Sullivan, 527 N.E.2d 798, 800 (Ohio 1988) (“[T]he abolition of sovereign immunity by R.C. Chapter 2743 and recent decisions of this court did not serve to strip the state of all the privileges of sovereignty and place it in absolute parity with all other litigants.”); Dep’t of Transp. v. J.W. Bishop & Co., 439 A.2d 101, 104 (Pa. 1981) (holding the abrogation of sovereign immunity did not require abrogation of nullum tempus). 10 The same considerations that support immunity from

limitation periods for the state, however, do not necessarily support

immunity for political subdivisions of the state. See Payette, 180 Iowa

at 664, 163 N.W. at 593 (“The county is not the state, and the reasons

upon which the rule ‘nullum tempus occurrit regi’ is supposed to rest have

little or very restricted application to the minor municipalities of the

state.” (citing Perry County v. Selma, Marion & Memphis R.R., 58 Ala. 546

(1877))). Cities and counties are not sovereign bodies, but in many

aspects, are agencies of the state. See Reynolds v. Sims, 377 U.S. 533,

575, 84 S. Ct. 1362, 1388, 12 L. Ed. 2d 506, 535 (1964) (“Political

subdivisions of States—counties, cities, or whatever—never were and

never have been considered as sovereign entities. Rather, they have been

traditionally regarded as subordinate governmental instrumentalities

created by the State to assist in the carrying out of state governmental

functions.”); Mandicino v. Kelly, 158 N.W.2d 754, 758 (Iowa 1968)

(“Political subdivisions of states, such as counties, are not sovereign

entities; they are subordinate governmental instrumentalities created by

the state to assist in carrying out state governmental functions.”

(Citations omitted.)). 4 Thus, a different immunity rule applies to political subdivisions of the state. See Joseph Mack, Nullum Tempus:

Governmental Immunity to Statutes of Limitation, Laches, and Statutes of

Repose, 73 Def. Couns. J. 180, 188 (2006) (noting that many courts

“extend nullum tempus to political subdivisions on a limited basis,

refusing to grant the immunity unless the suit is on behalf of the

sovereign in a public fashion, rather than in a private or proprietary

4We recognize our home rule doctrine in Iowa gives a county those powers not reserved by the state. Iowa Const. art. III, § 39A. Yet, this authority to self-govern those areas not governed by the state does not enervate a county’s role as an agency of the state. 11 fashion”). This rule provides that the nullum tempus doctrine does

not exempt actions by municipalities and counties in Iowa from a general

statute of limitations unless the action involves a public or governmental

activity, as opposed to a private or proprietary activity. See Chi. & Nw.

Ry. v. City of Osage, 176 N.W.2d 788, 791 (Iowa 1970) (“General statutes

of limitations run against municipalities when they are engaged in

proprietary activities. They only enjoy sovereign immunity from general

limitation statutes when acting in their governmental capacities.”

(Citations omitted.)).

The public-private distinction applicable to counties and

municipalities is easily stated, but like many other rules, is not always

easily applied. The distinction can be difficult to make because, in a

sense, every right to sue possessed by a municipality or a county is a

public right. See City of Chi. v. Chi. & Nw. Ry., 163 Ill. App. 251 (1911)

(“In a sense, every right possessed by a municipal corporation is a public

right, and every class of property held by it is held in its public capacity,

and for public use.”). Thus, most every action by a county or

municipality can broadly be viewed as a public or governmental activity.

See Thomas R. Young, A Morass of Confusion and Inconsistency: The

Application of the Doctrine of Nullum Tempus Occurrit Regi in North

Carolina, 28 Campbell L. Rev. 251, 257 (2006) (“Defining exactly what

one means when declaring a certain action ‘governmental’ as opposed to

‘proprietary’ has not come easily, leading to what one commentator has

termed ‘a morass of confusion and inconsistency.’ ” (quoting William L.

Prosser et al., Torts 626 (8th ed. 1988))).

In Iowa, however, a fairly clear line has been drawn between

governmental and proprietary actions. Early in our judicial development

of the nullum tempus doctrine, we began to focus on the nature and 12 character of the action to determine if the political

subdivision was assisting in the welfare of the state, or merely regulating

its internal affairs for the benefit of those within its own boundaries. In

doing so, we have formed the distinction between public or governmental

activities vis-à-vis private or proprietary activities as a means to

determine if the doctrine of nullum tempus applies to make a subdivision

of the state immune from the general statute of limitations. In Great

Western Insurance Co. v. Saunders, 223 Iowa 926, 932, 274 N.W. 28, 32

(1937), we rejected a claim by a city that it was immune from the general

statute of limitations because it was exercising a governmental function

by bringing a law suit to collect municipal court costs. Instead, we found

the action was proprietary in nature because it merely involved a

collection of a debt that would be placed in the city treasury and used for

the benefit of the public within the city boundaries. Great W. Ins. Co.,

223 Iowa at 932, 274 N.W. at 31-32. Similarly, in Payette, we held that a

county was subject to the statute of limitations because its right of action

benefited only those within the county. See Payette, 180 Iowa at 663,

163 N.W. at 593 (“[W]here the claim made by the county is in its own

right or interest, and not in the interest of the state or general public, the

limitation is applicable to the same extent as if the action were brought

by an individual. . . . The county in this instance is seeking the

enforcement of the Payette judgments, not for the use or benefit of the

state, nor for the use or benefit of the general public of the state, but

solely in its own interest and in the interest of that particular part or

fraction of the public within its local jurisdiction.”). Likewise, in one of

our very early nullum tempus cases, we held that the statute of

limitations did run against the state, because the state was only a 13 nominal party, and the action brought was for the ultimate

benefit of the county. State v. Henderson, 40 Iowa 242, 245 (1875).

On the other hand, when an action by a political subdivision

benefits the state, not just the public within the boundaries of the

subdivision, the nullum tempus doctrine applies, and the county or

municipality is not subject to a general statute of limitation as other

litigants. In another early nullum tempus case extending the doctrine to

political subdivisions, we held that the statute of limitations did not

apply to an action by a county to collect money owed to a “school fund”

because the nature of the action was in effect one by the state. Des

Moines County, 34 Iowa at 86-87. Along the same lines, we held that an

action by a city to remove a squatter from a public street involved the

enforcement of rights that benefited the state because the city was

exercising its authority over streets and highways delegated by the state.

State ex rel. Schlegel v. Munn, 216 Iowa 1232, 1237-38, 250 N.W. 471,

473 (1933). Thus, these cases as a whole reveal that the primary issue

in determining whether a political subdivision is engaged in

governmental or proprietary activity is whether it is seeking to vindicate

rights of the state or the citizens of the state as a whole, as opposed to

only the citizens within its own jurisdiction.

These cases also reveal that the mission behind the doctrine is to

extend immunity from a statute of limitations to a political subdivision

when the subdivision is acting in the nature of an arm or instrumentality

of the state. See Payette, 180 Iowa at 663, 163 N.W. at 593 (stating that

when “the county is to be regarded as a mere arm or instrument of the

state’s sovereignty,” nullum tempus applies, and the county is “therefore

entitled to an exemption from the effect of the statute of limitations”). In

such an instance, the sovereign powers of the state are implicated, and 14 the need to protect rights of the public entrusted to the state comes

into focus. See generally 51 Am. Jur. 2d Limitations on Actions § 86, at

507 (2000) (“An action by a municipality is brought for public purposes

only if it is a municipal action arising out of powers that are traceable to

sovereign powers of the state that have been delegated to the

municipality.”). Thus, the distinction between public or governmental

and private or proprietary does not focus on whether the enforcement of

the right will benefit the public, as opposed to its own corporate

enterprise, but on whether it will benefit the public within the state, not

just the public within its corporate limits.

A-1 asserts it is unnecessary to quibble over the application of the

rule because we have previously determined in one of our early nullum

tempus cases that an action by a county or municipality to collect taxes

does not assert a public or governmental right, and a political

subdivision is therefore subject to the general statute of limitations when

it brings an action to collect taxes. City of Burlington v. B. & M. R.R., 41

Iowa 134, 141 (1875). In City of Burlington, we held that an action by a

city to collect taxes was not an action to assert a public or governmental

right. Id. Instead, we said the city was asserting a proprietary right

when it sought to collect a debt from a taxpayer. See id. (“The right of

the city to maintain this action can only be supported upon the ground

that the taxes are debts, property held by it in its proprietary character.

It appears in this action in that character, claiming to recover on the

ground that the defendant is its debtor upon an obligation created by the

assessment and levy of the taxes. In the debt thus created, it has a right

of property in its proprietary character.”).

However, the City of Burlington case cannot be read as a broad

declaration that the collection of taxes by a city or county is not a public 15 activity under the nullum tempus doctrine. The collection of taxes in

that case was a proprietary activity because of the particular underlying

circumstances. In that case, the city only sought to collect taxes levied

for municipal purposes, something that benefited the city, but not the

state. Id. at 138. Thus, the character of the action was to satisfy its own

proprietary interests, not the public’s interests as a representative of the

state. Id. at 141; see also Fitzgerald v. Sioux City, 125 Iowa 396, 403,

101 N.W. 268, 271 (1904) (holding statute of limitations barred city’s

claim for municipal grading, paving, and curbing taxes); Brown & Sully v.

Painter, 44 Iowa at 368, 369 (1876) (holding statute of limitations ran

against tax-deed-holders in action to recover the price tax-deed-holders

paid for delinquent taxes after the tax deed was declared invalid).

Our cases reveal that the distinction between governmental and

proprietary functions largely depends upon the facts of each case, and it

is dangerous to apply the distinction with broad strokes. Instead, the

true nature and character of the action in each case must be identified.

Many factors can be considered, including any constitutional provisions

or statutes that address the type of powers exercised by a city or a

county in bringing an action, as well as the inherent nature of such

power or the underlying activity engaged in by the subdivision. The

nullum tempus doctrine will apply when the city or county is exercising

powers as an agent of the state to promote the interests of the citizens of

Iowa.

In this case, a portion of property taxes collected by a county goes

to support the public schools within its school districts. See Iowa Code

§§ 257.3(1) (“[A] school district shall cause to be levied each year, with

the school general fund, a foundation property tax equal to $5.40 per

$1000 of assessed valuation on all taxable property in the district. The 16 county assessor shall spread the foundation levy over all taxable

property in the district.”), 257.4(1) (“A school district shall cause an

additional property tax to be levied each year. The rate of the additional

property tax levy in a school district shall be determined by the

Department of Management and shall be calculated to raise the

difference between the combined district cost for the budget year and the

sum of the products of the regular program foundation base per pupil

times the weighted enrollment in the district and the special education

support services foundation base per pupil times the special education

support services weighted enrollment in the district.”); see also Iowa

Dep’t of Revenue, An Introduction to Iowa Property Tax (2006),

http://www.state.ia.us/tax/educate/78573.html (noting that 45% of

property taxes collected in fiscal year 2005 went to K-12 schools); Lori

Reynolds, Skybox Schools: Public Education as Private Luxury, 82 Wash.

U. L.Q. 755, 756 (2004) (“In most states, in spite of the widespread

litigation and legislative reform, the most important single source of

revenue for elementary and secondary schools is still the local property

tax.” (citing Nat’l Ctr. for Educ. Statistics, U.S. Dep’t of Educ., Financing

Elementary and Secondary Education in the States: 1997-98, at tbl. A-1

(1997))). The source of school funding is important because the duty and

authority to educate Iowans rests with the state. The duty of the state to

establish and supervise a state system of education not only has

constitutional origins, but it has been an inherent aspect of state

government from the inception of our state. See Iowa Const. art. IX, § 12

(“The Board of Education shall provide for the education of all the youths

of the State . . . .”). Moreover, a comprehensive statutory scheme exists

that defines the role of the state and the state department of education to

provide a public education to Iowa’s young people. See generally Iowa 17 Code ch. 256. Thus, an action by a county to collect delinquent

property taxes benefits the state school system and helps the state in

carrying out its mission to provide education to Iowans. In this light, the

county, when collecting delinquent property taxes, is engaged in a public

or governmental activity. See 78 C.J.S. Schools and School Districts § 9,

at 46 (1995) (“The financial maintenance of the public schools is the

carrying out of a state, and not a local or municipal, purpose . . . .”). In

assisting the state, the county provides a benefit that extends well

beyond its borders, and its efforts contribute to an important public

mission affecting all of Iowa. Public rights are at stake, which gives rise

to immunity from the statute of limitations that would otherwise prevent

the exercise of those rights.

In summary, we conclude that the district court erred in refusing

to apply the common-law doctrine of nullum tempus occurrit regi and in

holding the statute of limitations ran against the Treasurer in this tax-

collection action. We hold the district court erred in granting summary

judgment to A-1 on the claims for delinquent taxes for the years 1989

through 1996 based on a finding that the claims were precluded by the

statute of limitations.

IV. Tax Sale Certificate

We turn to consider whether the district court properly dismissed

the collection claims for the tax years 1997 to 2001 because the

Treasurer failed to obtain a tax sale certificate prior to instituting its

action. The district court determined the statutory scheme for collecting

delinquent property taxes requires the Treasurer to obtain a tax sale

certificate as a condition precedent to bringing an action to collect taxes

in all cases except those in which the subject parcel is land, and the

Treasurer is unable to offer the land for tax sale. Because the parcel in 18 this case consists of machinery and equipment, not land, the

district court found a tax sale certificate was a condition precedent to an

action for a personal judgment for taxes on the parcel.

As previously noted, the taxation structure in Iowa includes a tax

on real property. Iowa Code § 427.13. The taxation process begins with

the county assessor, who values each item of taxable property in the

county. Id. §§ 441.18–.21. Each taxable item is called a “parcel.” Id.

§ 445.1(4). After the property is valued, the taxpayer has an opportunity

to protest the assessment to the board of review. Id. §§ 441.23, .37. The

department of revenue then equalizes the assessments, id. § 441.47, and

taxing authorities (e.g., cities, counties, school districts, and townships)

establish their budgets based on the valuations in the assessments and

determine the rate of tax, based on the value of the property, needed to

fund their budgets, id. §§ 444.1–.3. The county auditor then delivers a

tax list computing the total amount due, id. § 443.2, to the county

treasurer to collect the taxes, id. § 443.4.

The taxes generally become delinquent if the first installment is not

paid by October 1, and the second installment is not paid by April 1. Id.

§§ 445.36–.37. If the taxes remain delinquent, the treasurer must offer

the parcel at the annual tax sale. See id. § 446.7 (“Annually, on the third

Monday in June the country treasurer shall offer at public sale all

parcels on which taxes are delinquent.”). The purpose of the sale is to

collect the taxes, interest, fees, and costs due by means of the sale of the

parcel to a bidder, or by subsequent redemption. See generally id. chs.

446–48. If a bid is received in an amount equal to the total amount due,

then the sale ultimately provides a means for the treasurer to collect the

delinquent taxes. See id. § 446.16(1) (“The person who offers to pay the

total amount due, which is a lien on any parcel, for the smallest 19 percentage of the parcel, is the purchaser . . . .”). If no person

bids on the parcel, the county treasurer offers it for sale again

periodically (at least every two months) until the next annual tax sale.

Id. § 446.25. If the parcel remains unsold at the time of the next annual

tax sale, the treasurer then offers the parcel at the “public bidder sale,”

formerly known as the “scavenger sale.” Id. § 446.18. If no person bids

on the parcel at the public bidder sale, or the only bid received is for less

than the total amount due, “the county in which the parcel is located,

through its county treasurer, shall bid for the parcel a sum equal to the

total amount due.” Id. § 446.19. In this way, the treasurer becomes the

purchaser, and receives a tax sale certificate. Id. § 446.29. This

certificate allows the county to pursue many avenues, including

assigning the certificate, id. § 446.31, entering into a compromise or

abatement agreement, id. § 445.16, or assigning the certificate for

redevelopment of the parcel as housing in exchange for the amount due,

id. § 446.19A. Alternatively, the owner of the parcel may redeem the

parcel by paying the total amount due. Id. § 447.1. If the parcel is not

redeemed, the county may acquire title to the parcel through a tax deed.

Id. § 448.1. The county can then sell the property or dispose of it as

provided in section 331.361. Id. § 446.19A(4)(b).

Additionally, the county may pursue an action to convert the

amount due into a personal judgment against the parcel’s owner. See id.

§§ 445.3 (“In addition to all other remedies and proceedings now

provided by law for the collection of taxes, the county treasurer may

bring or cause an ordinary suit at law to be commenced and prosecuted

in the treasurer’s name for the use and benefit of the county for the

collection of taxes . . . .”), 446.20(1) (“Without limiting the county’s rights

under section 445.3, once a certificate is issued to a county, a county 20 may collect the total amount due by the alternative remedy provided

in section 445.3 by converting the total amount due to a personal

judgment.”). The tax-sale-certificate remedy and the personal-judgment

remedy may be pursued simultaneously until the total amount due has

been collected. Id. § 446.20(1).

However, as a condition precedent to pursuing the personal-

judgment remedy, normally, a tax sale certificate must first be issued.

See id. (stating a county may pursue a personal judgment “once a

certificate is issued” (emphasis added)); id. § 445.3 (“The commencement

of actions for ad valorem taxes authorized under this section shall not

begin until the issuance of a tax sale certificate under the requirements

of section 446.19.”). Thus, in order to obtain a personal judgment based

on delinquent property taxes, a treasurer must usually (1) offer the

parcel at the annual tax sale to collect the amount due, id. § 446.7; (2)

re-offer the parcel at least every two months until the next annual tax

sale (i.e., for one year), id. § 446.25; (3) offer the parcel at the public

bidder sale, id. § 446.19; and (4) bid the total amount due and obtain a

tax sale certificate, id. §§ 446.19, .29. Obviously, this can be a lengthy

process.

However, there is an exception to the requirement for the treasurer

to first obtain a certificate of sale before pursuing an action under

section 445.3. Section 445.3 provides:

Notwithstanding any other provisions in this section, if the treasurer is unable or has reason to believe that the treasurer will be unable to offer land at the annual tax sale to collect the total amount due, the treasurer may immediately collect the total amount due by the commencement of an action under this section.

Id. § 445.3, para. 5. The district court read this exception as limited to

situations when the parcel consists of land that the treasurer is unable 21 to offer for sale at the annual tax sale. We think the exception has

broader application for two reasons.

First, the land limitation found by the district court is not derived

from the language of the statute. Instead, the limitation was created by

the district court from a presumption that the statutory language

concerning the inability “to offer land at the annual tax sale” means the

land must first exist. However, this presumption overlooks that a parcel

subject to taxation as real property can be not only land, but equipment,

machinery, computers, and many other types of property. See id.

§ 427A.1 (listing items of property taxed as real property); see also 1984

Op. Iowa Att’y Gen. 125 (“Given that real property taxes constitute a lien

against the assessed real property of a manufacturing real property unit,

any such delinquent taxes can be satisfied by the chapter 446 tax sale.

Depending upon the circumstances, the county treasurer may be able to

collect delinquent taxes attributable to the machinery by sale of the

machinery only.”). Given the broad definition of “real property” for

purposes of taxation, it is possible for an item of “real property” that is

not land to be assessed as a parcel separate from the land on which it

sits. Each parcel would then be separately taxed. Therefore, taxes on

the “non-land” parcel could become delinquent without the land parcel

also becoming delinquent. In this situation, the treasurer would be in a

position to offer the non-land parcel at tax sale, but would be “unable to

offer land at the annual tax sale to collect the total amount due.” Id.

§ 445.3, para. 5.

This situation may commonly occur in the case of leased land,

where the landowner remains responsible for paying the property taxes

on the land. See id. §§ 445.5(5) (stating the treasurer “shall deliver” the

statement of taxes due to the titleholder of the land); 445.5(2) (stating the 22 lessee, mortgagee, contract- purchaser, or financial institution

is entitled to a statement of taxes due “upon request”). It would not be

uncommon for a business owner to lease a building and land to operate

a business, but own the machinery, equipment, or computers located in

the building. Conversely, a business owner could own the building and

land and lease the machinery, equipment, and computers from another

person or entity. In both situations, the land and non-land real property

would have separate owners, and the property would be separately taxed.

Consequently, there would be separate parcels that could ultimately be

offered at a tax sale in the event of a delinquency.

This analysis reveals that a county treasurer is unable to sell land

at a tax sale when the parcel consists of real property other than land,

such as equipment, machinery, or computers. See id. § 445.3, para. 5

(“Notwithstanding any other provisions in this section, if the treasurer is

unable or has reason to believe that the treasurer will be unable to offer

land at the annual tax sale to collect the total amount due, the treasurer

may immediately collect the total amount due by the commencement of

an action under this section.”). Thus, the exception under the statute is

not limited by its language to situations in which the parcel is land. The

language itself applies to situations in which the parcel offered for sale

does not consist of land. This is the precise situation in this case.

Second, the exception would serve little purpose under the

interpretation by the district court. There is no readily apparent reason

why a county treasurer should be allowed to bypass the tax-sale-

certificate procedure in the case of land but not in the case of non-land

real property parcels. Conversely, it is clear why the legislature would

want to bypass the tax-sale-certificate procedure for non-land parcels

but not for land. A treasurer does not bid on a parcel, and obtain a tax 23 sales certificate for the parcel, until the parcel has been previously

offered at a tax sale for one year or more and remains unsold for want of

bidders. Id. § 446.18-.19. Thus, a substantial amount of time can pass

between the offer of a parcel at a tax sale and the issuance of a certificate

of sale to the county, which then enables the treasurer to bring a

collection action. This passage of time would normally have a greater

adverse impact on the value of equipment, machinery, and computers

than on land. Equipment, machinery, and computers can depreciate in

value much more rapidly than land. This type of property has a limited

life, while land does not. Moreover, land is a finite resource, so it always

has value. Thus, when a parcel does not include land, it is logical and

reasonable to allow the treasurer to dispense with the tax-sale

requirements and immediately proceed to file an action to collect the

amount due. Without the exception, a treasurer could very well invest

great time and effort into obtaining a tax sale certificate on a non-land

parcel only to end up with the county getting title to a worthless piece of

property in the end. This cannot be what the legislature intended.

We conclude a county treasurer may maintain an action to collect

a delinquency on a parcel without first obtaining a certificate of sale

when, as in this case, the parcel does not include land. Id. § 445.3, para.

5. When a treasurer is not able to sell land at a tax sale to collect

delinquent taxes on a parcel, or when the treasurer reasonably believes

the treasurer will be unable to sell land, the treasurer may immediately

commence an action to collect the amount due on the parcel. Id. The

district court erred in granting summary judgment for A-1 on this issue.

V. Remaining Issues

The district court determined the defense of laches could not be

applied in this case, and that the defense of estoppel was not amenable 24 to adjudication because of the existence of disputed facts.

However, it did not address the viability of the remaining defenses

asserted by A-1.

Generally, error is not preserved for appeal on issues submitted to

the district court but not decided, if the appellant failed to file a posttrial

motion requesting the court to rule on the matter. Teamsters Local Union

No. 421 v. City of Dubuque, 706 N.W.2d 709, 713 (Iowa 2005). Under

this rule, the Treasurer failed to preserve error on those issues not

decided by the district court. Thus, we will not discuss A-1’s defenses at

his request.

However, there is another legal principle that permits us to review

the viability of the remaining defenses. We may uphold a district court

ruling on appeal on grounds not relied upon by the district court if the

grounds were presented to the district court. DeVoss v. State, 648

N.W.2d 56, 61 (Iowa 2002). Here, A-1 asserted all of its defenses in

support of its motion for summary judgment, but the district court only

relied upon the statute-of-limitations and tax-sale-certificate defenses.

A-1 now seeks affirmance based on the defenses not relied upon by the

court. Thus, we must proceed to determine if we can uphold, or partially

uphold, the summary judgment based upon the other defenses asserted

by A-1.

A. Effect of Iowa Code Section 427A.10 on Tax Years Prior to July 1, 1994 A-1 claims we can partially uphold the summary judgment

because the property assessed by the Treasurer was not subject to

taxation for the tax years prior to July 1, 1994. It claims the legislature

repealed the tax on personal property during this period of time.

However, A-1’s reliance on the legislative changes regarding Iowa 25 property tax from 1987 to 1995 is misplaced. In 1985 the legislature

amended section 427A.10 to repeal personal property taxes after July 1,

1987. 1985 Iowa Acts ch. 32, § 105 (codified at Iowa Code § 427A.10

(1987)). Then in 1994 this section was repealed, 1994 Iowa Acts ch.

1173, § 42, and in 1995 the legislature passed “An Act Relating to

Nonsubstantive Code Corrections” and enacted, inter alia, new section

427A.2, see S.F. 87, 76th G.A., Reg. Sess. § 33 (Iowa 1995). Section

427A.2 affirmatively repealed the personal property tax in Iowa. 1995

Iowa Acts ch. 67, § 33 (codified at Iowa Code § 427A.2 (1997)). Whether

in 1987, 1995, or any time between or after those dates, however, all

tangible property defined as real property under section 427A.1 was

subject to taxation. See, e.g., Iowa Code § 427A.1 (1987). The personal

property not subject to taxation was only that tangible property not

defined as real property under section 427A.1. Id. This factual

argument is not before us.

B. Prospective Application of Personal-Judgment Remedy

Prior to 1992, a claim for delinquent taxes in Iowa was only in rem.

Hiskey v. Maloney, 580 N.W.2d 797, 799 (Iowa 1998). Such claims could

not become a personal obligation of any person. Id. In 1992, our

legislature amended sections 445.3 and 446.20 to create an action for

personal judgments. 1991 Iowa Acts ch. 191, § 28. The statutes became

effective on April 1, 1992. Id. A-1 argues this statutory amendment only

applies prospectively, and taxes levied prior to April 1, 1992, the effective

date of the statute, cannot be converted to a personal judgment against

A-1.

In Hiskey, we held that sections 445.3 and 446.20(1) “do not apply

to delinquent taxes included in tax sale certificates acquired by a county

prior to April 1, 1992.” 580 N.W.2d at 799. We reasoned that because 26 section 445.3 created a new personal liability, it could not be

applied retroactively. Id. (citing Iowa Code § 4.5 (“A statute is presumed

to be prospective in its operation unless expressly made retrospective.”)).

The Hiskey holding is not directly apposite to this case. In Hiskey, the

dispute concerned taxes that were both levied, and for which a tax sale

certificate was issued, before the effective date of the statutes. Id. at 797.

In contrast, in this case, the tax sale certificate was acquired after the

effective date of the statutes, but the 1989-1992 taxes were levied before

the effective date of the statutes. A-1 urges us to answer the question we

left open in Hiskey: “whether the statutes are inapplicable to all

delinquent real estate taxes levied before their effective date (April 1,

1992).” Id. at 799. Although we determined the personal judgment

statutes applied prospectively in Hiskey, we did not decide which event

was relevant in the prospective application of the statute. A-1 claims the

relevant event is the date the delinquent taxes were levied, while the

Treasurer claims the personal judgment statutes apply to delinquent

taxes levied prior to 1992 as long as the tax sales certificate was issued

after 1992. We left the question open in Hiskey, because it was not

necessary to the decision, given that both events occurred before 1992 in

that case.

In deciding this question, we turn to the underlying rationale that

led us in Hiskey to declare that the statute operates prospectively.

Statutes that create new rights or obligations, such as personal liability

for property taxes, are applied prospectively “as a matter of fairness, so

that people have opportunities to know what the law is and to conform

their conduct accordingly.” 2 Norman J. Singer, Statutes and Statutory

Construction § 41:4, at 396–97 (6th ed. 2001 rev.); see also id. § 41:2, at

375–76 (“It is a fundamental principle of jurisprudence that retroactive 27 application of new laws is usually unfair. There is general consensus

that notice or warning of the rule should be given in advance of the

actions whose effects are to be judged. The hackneyed maxim that

everyone is held to know the law, itself a principle of dubious wisdom,

nevertheless presupposes that the law is at least susceptible of being

known. But this is not possible concerning law that has yet to exist.”).

Prior to 1992, property owners in Iowa felt secure in the law that

delinquent property taxes levied on real estate could not be converted

into a personal judgment against the person. When the law was changed

in 1992, this security was lost. From that point in time, a delinquency in

taxes levied on real estate could result in a personal judgment. Yet,

having found in Hiskey that the personal judgment statute must only be

applied prospectively, it is clear that the purpose of the prospective

application could only be served by using the time when the tax was

levied as the commencement date of the statute for the purposes of

applying it prospectively. It would be unfair to apply the statute

prospectively, but then allow it to reach back in time to collect delinquent

taxes levied prior to the effective date of the statute by obtaining a tax

sale certificate after the effective date of the statute. The important event

is when the tax becomes an obligation. When this occurs, a property

owner deserves to know whether or not the obligation can result in a

personal judgment. Property owners knew prior to 1992 that the

obligation to pay taxes levied on property could not be collected as a

personal judgment. This is the important event that prospective

application of the statute was intended to protect. It would be contrary

to the rationale supporting prospective application of this statute to

permit a county treasurer to circumvent the prospective operation of this

statute and make ancient taxes the basis of a personal judgment after 28 the effective date of the statute by merely obtaining a tax sale

certificate after the effective date of the statute. The operative action of

the taxpayer—nonpayment of taxes—occurred prior to the effective date

of the statute. Thus, today we take the next logical step from Hiskey and

hold that a county treasurer may not obtain personal judgments against

defendants for taxes levied before the effective date of the personal

judgment statute, April 1, 1992. 5

C. Equitable Estoppel

Finally, we turn to consider the claim by A-1 that the Treasurer

was estopped to collect delinquent taxes on the property under the

defense of equitable estoppel. A-1 claimed that the Treasurer was

estopped to collect taxes because it failed to provide A-1 with adequate

notice of the assessment and an opportunity to provide information to

contest it at the time.

The Treasurer, in its motion for summary judgment, argued this

defense was not available in an action at law, and it did not apply to

statutory tax collection actions. See 31 C.J.S. Estoppel and Waiver

§ 176, at 668 (1996) (“Taxation being a governmental rather than a

proprietary function, ordinarily there can be no estoppel against a

government or governmental agency with reference to the enforcement of

taxes; and statutory tax collection procedure should not be frustrated

through the application of the doctrine of equitable estoppel.”). The

district court denied the Treasurer’s motion for summary judgment on

5 Under this standard, the summary judgment granted by the district court would be proper for those tax years in which the taxes were levied prior to April 1, 1992. Under the evidence, this would include the tax claims from 1989 and 1990. However, the parties did not have the benefit of our ruling at the time of the summary judgment proceedings to determine when the taxes for the years 1991 and 1992 were actually levied. On remand, we leave it for the district court to determine which claims for delinquent taxes were levied prior to April 1, 1992 and to enter judgment accordingly. 29 this point, holding there were genuine issues of material fact on

whether the Treasurer “had the duty to collect information from [A-1]

concerning this equipment and whether [the Treasurer] provided notice

to [A-1] concerning the accrual of these alleged taxes.” See Markey v.

Carney, 705 N.W.2d 13, 21 (Iowa 2005) (listing elements of equitable

estoppel as: “ ‘(1) a false representation or concealment of material facts;

(2) lack of knowledge of the true facts on the part of the actor; (3) the

intention that it be acted upon; and (4) reliance thereon by the party to

whom made, to his prejudice and injury’ ” (quoting ABC Disposal Sys.,

Inc. v. Dep’t of Natural Res., 681 N.W.2d 596, 606 (Iowa 2004))). The

Treasurer seeks reversal of this ruling on appeal.

“We have consistently held equitable estoppel will not lie against a

government agency except in exceptional circumstances.” ABC Disposal

Sys., Inc., 681 N.W.2d at 607 (citing Bailiff v. Adams County Conference

Bd., 650 N.W.2d 621, 627 (Iowa 2002)). We have explained that “[a]

person seeking to invoke the doctrine of equitable estoppel against a

government body ‘bears a heavy burden, particularly when the

government acts in a sovereign or governmental role rather than a

proprietary role.’ ” Id. (quoting Bailiff, 650 N.W.2d at 627). The

“exceptional circumstances” under which equitable estoppel will lie

against the government include instances when, “in addition to the

traditional elements of estoppel, the party raising the estoppel proves

affirmative misconduct or wrongful conduct by the government or a

government agent.” 28 Am. Jur. 2d Estoppel and Waiver § 140, at 559

(2000).

To determine the viability of this defense, we must examine the

specific grounds upon which it is based. In resisting the Treasurer’s

motion for summary judgment, A-1 explained that its equitable estoppel 30 defense was based on the failure of the Davenport city assessor’s office

“to communicate with Alvin W. Roggenkamp to obtain information upon

which to obtain a valid tax assessment.” It claimed the city assessor’s

conduct could be imputed to the Treasurer because the assessor acts as

an agent.

Even assuming the truth of A-1’s factual allegation, and the legal

validity of its vicarious-liability theory, A-1’s equitable estoppel defense

fails as a matter of law. A failure by the assessor to communicate with

A-1 does not establish “ ‘a false representation or concealment of

material facts,’ ” Markey, 705 N.W.2d at 21 (quoting ABC Disposal Sys.,

Inc., 681 N.W.2d at 606), let alone an “exceptional circumstance” that

would allow the application of equitable estoppel against the government,

see ABC Disposal Sys., Inc., 681 N.W.2d at 607 (“We have consistently

held equitable estoppel will not lie against a government agency except in

exceptional circumstances.” (Citation omitted.)). This defense is not

available to A-1 in this proceeding as a matter of law.

D. Attorney Fees

A-1 requests the case be remanded to the district court for

consideration of common law attorney fees for defending the action in

district court and on appeal. Alternatively, A-1 requests an award for

appellate attorney fees.

There is no statute providing for attorney fees in a tax-collection

action, so any award would have to be for common-law attorney fees.

See Capital Fund 85 Ltd. P’ship v. Priority Sys., LLC, 670 N.W.2d 154,

160 (Iowa 2003) (“We have repeatedly stated that, as a general rule in

Iowa, attorney fees are not allowed in the absence of a statute or contract

authorizing such an award.” (Citations omitted.)); Hockenberg Equip. Co.,

510 N.W.2d at 158 (“A party generally has no claim for attorney fees as 31 damages in the absence of a statutory or written contractual

provision allowing such an award. Courts have recognized a rare

exception to this general rule, however, ‘when the losing party has acted

in bad faith, vexatiously, wantonly, or for oppressive reasons.’ ”

(Citations omitted.)). The standard for an award of common-law attorney

fees is as follows:

A plaintiff seeking common-law attorney fees must prove that the culpability of the defendant’s conduct exceeds the punitive-damage standard, which requires “willful and wanton disregard for the rights of another.” Instead, “such conduct must rise to the level of oppression or connivance to harass or injure another.” Put another way, the standard “envisions conduct that is intentional and likely to be aggravated by cruel and tyrannical motives.”

Wolf, 690 N.W.2d at 896 (quoting Hockenberg Equip. Co., 510 N.W.2d at

159–60).

Our resolution of this case on appeal reveals any claim for attorney

fees is inappropriate. This case is far removed from the rare exception to

the general rule against an award for attorney fees. Accordingly, we deny

the request for appellate attorney fees made by A-1. Additionally, a claim

for trial attorney fees is untimely when made for the first time on appeal.

See Meier v. Senecaut III, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a

fundamental doctrine of appellate review that issues must ordinarily be

both raised and decided by the district court before we will decide them

on appeal.”).

VI. Conclusion

The district court erred in granting summary judgment to A-1,

except with respect to the Treasurer’s claim for a personal judgment on

taxes levied prior to April 1, 1992. We reverse the decision of the district

court and remand the case for further proceedings. 32 AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.

All justices concur except Carter, J., who concurs in result only.