Stalker v. Iowa Department of Transportation

483 N.W.2d 331, 1992 Iowa Sup. LEXIS 75, 1992 WL 74603
CourtSupreme Court of Iowa
DecidedApril 15, 1992
DocketNo. 91-524
StatusPublished
Cited by1 cases

This text of 483 N.W.2d 331 (Stalker v. Iowa Department of Transportation) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stalker v. Iowa Department of Transportation, 483 N.W.2d 331, 1992 Iowa Sup. LEXIS 75, 1992 WL 74603 (iowa 1992).

Opinion

LAVORATO, Justice.

In this case, Charles Thomas Stalker and Lori Stalker, husband and wife, ask us to reverse the district court’s dismissal of their appeal in an eminent domain proceeding for insufficient notice. The court ruled its jurisdiction had not been properly invoked because the Stalkers failed to serve notice of the appeal on their contract vendor within thirty days of the appraisement notice as required by statute. See Iowa Code § 472.18 (1989).

Because we disagree with the district court’s determination, we reverse.

Charles Thomas Stalker purchased a parcel of land in Cerro Gordo county on contract from Larison Oil Company. Larison Oil Company in turn conveyed its interest in the real estate to Gary L. Larison and Marilyn J. Larison, husband and wife.

Several years later, the Iowa Department of Transportation condemned a portion of this real estate under Iowa Code chapter 472 for the expansion of U.S. Highway 18. The compensation commission appraised the damages at $30,912 and issued a joint award. See Iowa Code § 472.4. (Because the Larisons held legal title to the land and the Stalkers held equitable title to the land, the award was issued to both.)

The Cerro Gordo county sheriff served notice of the appraisement of damages and the time for appeal to the parties named in the condemnation notice on November 1, 1990. The notice named the Stalkers and the Larisons. The notice also named the city of Mason City and Cerro Gordo county.

The Stalkers were unhappy with the ap-praisement, so they decided to appeal. They filed a notice of appeal with the district court on November 26, 1990. They filed their petition on December 4, 1990.

The Larisons, who reside in Florida, were not named as defendants in this appeal. The Stalkers apparently thought this was unnecessary. This was because the Lari-sons and the Stalkers had mutually agreed that the Larisons were not entitled to any proceeds of the condemnation proceeding.

The department answered on December 21, 1990. In its answer, the department asserted lack of subject matter jurisdiction. This was because of the Stalkers’ failure to serve the Larisons who, the department claimed, were adverse parties under section 472.18.

Later, the department filed a motion to dismiss which the district court sustained for lack of jurisdiction. The Stalkers then appealed to this court.

I. The procedural requirements for appeal of an appraisement by the condemnation commission are found at section 472.-18. Section 472.18 states in pertinent part:

[A]ny interested party may, within thirty days from the date of mailing the notice of the appraisement of damages, appeal to the district court. At the time of appeal, the appellant shall give written notice that the appeal has been taken to the adverse party, or the adverse party’s agent or attorney, lienholders, and the sheriff.

(Emphasis added.)

It is undisputed that the department, the city of Mason City, and Cerro Gordo county were timely served under section 472.18. But the department contends that the Lari-sons — as contract vendors — are adverse parties under that section and should have been served. The Stalkers contend here— as they did in the district court — that they are not adverse parties within the meaning of the statute.

In appeals to an appellate court, a party who would be adversely affected by a reversal or modification of the judgment is an adverse party for purposes of appeal. Notice must therefore be served on that party to give the appellate court jurisdiction. The reason for the rule is that an [333]*333appellate court may not take away anything from one over whom it has not acquired jurisdiction. In re Shumaker’s Estate, 234 Iowa 195, 197, 12 N.W.2d 207, 209 (1943).

Conversely, failure to serve notice of appeal upon parties who would not be adversely affected by a change in the decision appealed from does not deprive the appellate court of jurisdiction. Id. Coparties must be served with notice of appeal if they would be prejudiced by a change in the judgment being appealed. Id. The burden rests on the appellant to show that unserved parties would not be adversely affected by a reversal or modification of the judgment. Id.

These same rules apply to condemnation appeals to the district court. See Bales v. Iowa State Highway Comm’n, 249 Iowa 57, 63, 86 N.W.2d 244, 248 (1957).

Here the Stalkers, who were the appellants in district court, conclusively established that their contract vendors, the Larisons, would not be adversely affected by any change in the condemnation award. In an affidavit, Gary L. Larison said this:

That during the course of my discussions with the Stalkers, it was agreed that the Stalkers would proceed to the condemnation proceedings not only on their behalf but also on behalf of my wife and myself.
That after November 1, 1990, I received notice from the sheriff of Cerro Gordo county, Iowa, regarding the appraisement of damages as assessed by the condemnation commission. That I had numerous contacts after receipt of said notice with the Stalkers and encouraged the Stalkers to appeal the decision of the condemnation commission based on our prior agreement.
That 1 was aware of my rights to the joint award made by the condemnation commission, and waived any rights which I had to said award, due to my agreement with the Stalkers....

(Emphasis added.) Clearly, the Larisons waived any rights to the condemnation award. In these circumstances, if the award in district court turns out to be less, the Larisons lose nothing. The district court would be taking nothing away from the Larisons because of a reduced award.

II. On the effect of the Larisons’ waiver, the district court relied on Carmichael v. Iowa State Highway Commission, 156 N.W.2d 332, 334 (Iowa 1968), which reached a result opposite to the result here. At first blush, Carmichael seems to be on all fours with this case. (In Carmichael, the party not served was a mortgagee rather than a contract vendor. This makes no difference because a contract vendor is an adverse party under section 472.18. See Griffel v. Northern Natural Gas Co., 257 Iowa 1140, 1145, 136 N.W.2d 265, 268 (1965).) But, on closer examination, we think Carmichael is distinguishable.

In Carmichael, the landowners filed a paper designated “Disclaimer of Interest” executed by the mortgagee. In it, the mortgagee disclaimed any interest in or title to that portion of the premises condemned. The disclaimer was undated and was filed thirty-three months after the condemnation award. Carmichael, 156 N.W.2d at 334, 337. The district court denied the condemnor’s motion to dismiss the landowners’ appeal and reached the merits.

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Bluebook (online)
483 N.W.2d 331, 1992 Iowa Sup. LEXIS 75, 1992 WL 74603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stalker-v-iowa-department-of-transportation-iowa-1992.