CAPITAL FUND 85 LTD. v. Priority Systems

• Decision Date: 08 October 2003
• Docket Number: No. 02-1356.,02-1356.
• Parties: CAPITAL FUND 85 LIMITED PARTNERSHIP, Appellant, v. PRIORITY SYSTEMS, LLC, Appellee.
• Court: Iowa Supreme Court

670 N.W.2d 154

CAPITAL FUND 85 LIMITED PARTNERSHIP, Appellant, v. PRIORITY SYSTEMS, LLC, Appellee.

No. 02-1356.

Supreme Court of Iowa.

October 8, 2003.

Jonathan C. Wilson, Debra Rectenbaugh Pettit, and Heather L. Palmer of Davis, Brown, Koehn, Shors & Roberts, P.C., Des Moines, for appellant.

Michael D. Ensley of Hanson, Bjork & Russell, L.L.P., Des Moines, for appellee.

STREIT, Justice.

An apartment building owner complains an electronic dish is on its building's roof without permission and wants it off. The owner of the apartment complex brought a forcible entry and detainer action against its tenants' former cable television provider for installing a two-foot repeater satellite dish on the roof of one of its buildings. The district court dismissed, and the cable television provider requested an award of attorney fees. The district court refused to award the cable television provider attorney fees. Both sides appeal. Because we hold this dispute does not warrant the summary remedy of forcible entry and detainer, we affirm.

I. Facts and Background

In 1995, Capital Fund 85, L.P. entered into a service agreement with Provision, Inc. Under the terms of the contract, Provision agreed to provide television service to Bristol Apartments, which Capital Fund owned. To do so, Provision installed a six-foot satellite receiver dish on top of one of the buildings at Bristol Apartments. In 1997, a Provision employee attached a second dish to the receiver dish. The attached dish, a repeater, relayed the same signal across the street to another building not owned by Capital Fund.

In the district court, Capital Fund offered evidence to show that Provision asked Capital Fund on the telephone if it could install the repeater dish before it did so, but was denied permission. Priority Systems, L.L.C., an alleged assignee of Provision and the defendant in this forcible entry and detainer action, denies there is sufficient evidence to support such a claim.

Capital Fund claims it did not become aware Provision had installed the repeater dish until 2002, when Capital Fund terminated the service agreement with Priority Systems. At that time, Capital Fund contracted with another company to provide cable television. When the change in service took place, Capital Fund, no longer needing service from the six-foot receiver dish, shut off electricity to the dishes.¹ Capital Fund thereby unwittingly turned off the television service to the tenants across the street. Capital Fund later turned the power back on. The receiver and repeater dishes are presently using Capital Fund's electricity.

Capital Fund filed a petition for forcible entry and detainer against Priority Systems. Capital Fund alleged the installation of the repeater dish without its consent, as well as its continued presence upon the rooftop of the Bristol Apartments, warrants the "summary remedy" of a forcible entry and detainer action. See Iowa Code § 648.1 (2001). In particular, Capital Fund alleged Priority Systems has "by force, intimidation, fraud, or stealth entered upon [its] prior actual possession... in real property, and detains the same." Id. § 648.1(1).

After a trial, the district court dismissed Capital Fund's forcible entry and detainer petition. The court held the matter was not properly brought as a forcible entry and detainer action, because the court would be required to rule on the rights of the parties to the underlying contract; the court noted that Capital Fund had already filed a separate action in district court to resolve those very issues. In the alternative, the district court held that "[e]ven if the court found an FED action proper in this circumstance ... there is no evidence in this record to support a finding of force, intimidation, fraud, or stealth."

After the district court ruled against Capital Fund on the forcible entry and detainer action, Priority Systems filed an application to tax attorney fees against Capital Fund. The court denied Priority Systems' request, ruling that there was no statutory or contractual authority on which to award attorney fees. Capital Fund appealed the district court's dismissal of the forcible entry and detainer action and Priority Systems cross-appealed the district court's refusal to award attorney fees.

II. Scope of Review

Our review of a forcible entry and detainer action, which is tried in equity, is de novo. Petty v. Faith Bible Christian Outreach Ctr., 584 N.W.2d 303, 306 (Iowa 1998); Bernet v. Rogers, 519 N.W.2d 808, 810 (Iowa 1994). Although we are not bound by the factual or legal findings of the district court, "we give them weight, especially when considering the credibility of witnesses." Petty, 584 N.W.2d at 306. The defendant has the burden to prove the affirmative defenses it raises. Id. In contrast, our review of an award of attorney fees, or lack thereof, is for an abuse of discretion. Equity Control Assocs., Ltd., v. Root, 638 N.W.2d 664, 670 (Iowa 2001).

III. The Merits

A. Forcible Entry and Detainer

The section of the statute at the center of the disagreement in this case reads as follows:

648.1 Grounds

A summary remedy for forcible entry or detention of real property is allowable:

(1) Where the defendant has by force, intimidation, fraud, or stealth entered upon the prior actual possession of another in real property, and detains the same....

Capital Fund bases its forcible entry and detainer claim upon this first subsection of the foregoing statute. Iowa Code § 648.1(1). Capital Fund alleges "Priority Systems and its predecessors-in-interest wrongfully entered Capital Fund's property and thereafter detained the same, by forcefully and stealthily attaching and operating a satellite repeat transmitter at Bristol Apartments."

On appeal, Capital Fund argues it has met the force, fraud, and stealth requirements of section 648.1(1), even though the disjunctive phraseology of that subsection requires a plaintiff to prove only one of these three elements, or "intimidation." See id. Capital Fund argues it has established force because Provision installed the repeater dish even though it was told not to do so, and the dish continues to draw upon Capital Fund's electricity, for which Capital Fund is not paid compensation.² Likewise, Capital Fund claims the facts support a finding of stealth and fraud because Provision, which had the limited right to provide cable service to Capital Fund's tenants, secretly installed, and its successors-in-interest maintained, the two-foot repeater dish after Capital Fund's representative expressly told Provision not to do so. Provision put the repeater dish, Capital Fund alleges, in a place where it is not visible to the naked eye from the ground. Nor is the dish, it claims, discernible to the untrained eye standing directly in front of it as a device distinct from the six-foot receiver dish.

Before reaching these claims, the district court, recognizing "[a forcible entry and detainer action] is typically used to remove a tenant in a residential dwelling or retail establishment" questioned "whether Chapter 648 even covers the situation before the court." The court then held the matter was "not properly brought as an FED action under Chapter 648." In order to reach a decision, the district court reasoned, it would have "to determine the meaning of the contract ... when those very issues are being litigated in [another pending action]." The district court refused to do so, and dismissed Capital Fund's petition.

We agree with the district court that the present matter was not properly brought as a forcible entry and detainer action. We recognize our statute is often used to resolve landlord-tenant disputes. We do not think this, nor the fact that the court would be required to determine the meaning of a contract that is being litigated elsewhere is necessarily fatal to a forcible entry and detainer action.

While it is true forcible entry and detainer actions typically involve landlord-tenant disputes, the plain language of Iowa Code section 648.1(1) allows for a forcible entry and detainer action where "the defendant has by force, intimidation, fraud, or stealth entered upon the prior actual possession of another in real property, and detains the same." Compare Iowa Code § 648.1(1), with Iowa Code § 648.1(2)-(6). Although other subsections of our forcible entry and detainer statute are confined in scope to the resolution of landlord-tenant disputes, section 648.1(1) contains no such restriction.

Nor is there any language in the statute expressly forbidding application of section 648.1(1) where the court would be required to interpret a contract that is the subject of another action. It is true that determining the ancillary legal rights of the parties is not the primary object of the statute. Since our earliest days, Iowa courts have recognized that forcible entry and detainer "is ... a civil action to obtain possession." Harrow v. Baker, 2 Greene 201, 203 (Iowa 1849) (emphasis added). And it is true that historically we were reluctant to permit parties to use this summary remedy to prove legal rights, such as title. See, e.g., Emsley v. Bennett, 37 Iowa 15, 17 (1873) ("the question of title or right of possession is not involved and cannot be tried ... [I]t is the fact of possession alone that is material" (emphases in original)); Settle v. Henson, 1 Morris 111, 112 (Iowa 1841) ("[the action of forcible entry and detainer] is not the proper action for trying titles of any description").

This reluctance to try titles, however, was, in part, a function of the statutes of the time; unlike our present statute, our earliest statutes expressly forbade title from being put in issue at all. Compare Iowa Code § 3961 (1860), with Iowa Code ch. 648 (2003); see Steele v. Northup, 168 N.W.2d 785, 787-88 (Iowa 1969)

("chapter 648 was not passed as a primary vehicle to establish or test title," but due to repeal of a prior statutory restriction, "[w]...