Lewis Investments, Inc. v. City of Iowa City

• Decision Date: 02 September 2005
• Docket Number: No. 03-1383.,03-1383.
• Parties: LEWIS INVESTMENTS, INC., Appellant, v. CITY OF IOWA CITY, Iowa, Appellee.
• Court: Iowa Supreme Court

703 N.W.2d 180

LEWIS INVESTMENTS, INC., Appellant, v. CITY OF IOWA CITY, Iowa, Appellee.

No. 03-1383.

Supreme Court of Iowa.

September 2, 2005.

Martin A. Diaz, Iowa City, for appellant.

Mitchel T. Behr, Assistant City Attorney, Iowa City, for appellee. TERNUS, Justice.

Plaintiff, Lewis Investments, Inc., was granted permission to bring this interlocutory appeal from the district court's denial of the plaintiff's motion for temporary injunction. The temporary injunction was sought to maintain the status quo while the plaintiff pursued its primary claim, an equitable action seeking a permanent injunction against the condemnation of its property as a public nuisance by the defendant, City of Iowa City, Iowa. See Iowa Code § 364.12A (2003) (allowing city to condemn a residential building to rehabilitate or demolish a public nuisance). The plaintiff claimed its opportunity to be heard at the city council meeting at which the city declared the property a public nuisance was inadequate under the Due Process Clause. The district court denied temporary injunctive relief, concluding that Lewis had been provided due process.

On appeal, the city argues the plaintiff's appeal is moot because the condemnation has now occurred. Upon considering the arguments of the parties and the pertinent law, we conclude the appeal is not moot. We also agree with the district court that the plaintiff has failed to establish a necessary prerequisite for temporary injunctive relief: a likelihood of success on the merits. Our decision rests, however, on a different ground, namely that the plaintiff had an adequate remedy at law to challenge the city's public-nuisance determination — a certiorari action — and for that reason would not be entitled to permanent injunctive relief. We conclude, therefore, that the district court did not abuse its discretion in refusing to grant a temporary injunction.

I. Facts and Prior Proceedings.

Lewis Investments, Inc. owns residential property at 426 Bayard Street in Iowa City. Lewis and the city have been at odds since 1997 due to complaints about the condition of the property. In 2000, the home located on this property was declared a dangerous building, and Lewis was ordered to vacate the property and repair or demolish the building. Eventually, Lewis and the city agreed to a step-by-step procedure and timetable for the repair of the property, but Lewis failed to follow through with the agreed-upon repairs. The city then decided to proceed with rehabilitation of the property under Iowa Code section 364.12A, which states:

For the purposes of section 6A.4, subsection 6, a city may condemn a residential building found to be a public nuisance and take title to the property for the public purpose of disposing of the property under section 364.7 by conveying the property to a private individual for rehabilitation or for demolition and construction of housing.

Iowa Code § 364.12A; see also id. § 6A.4(6) (allowing cities to take property "for public purposes which are reasonable and necessary as an incident to the powers and duties conferred upon cities"). A resolution to declare the property a public nuisance and to authorize the acquisition of the property "for the purpose of abating the nuisance" was set for discussion at the January 21, 2003 city council meeting. Although Lewis was given notice of the proposed resolution and told it would be given the opportunity to be heard at the meeting, neither Lewis nor its attorney participated in the council meeting. The resolution adopted at that meeting declared the plaintiff's property a public nuisance and authorized the city's staff to negotiate a purchase of the property or pursue condemnation.

After an unsuccessful attempt by the city to purchase the property, the city filed a condemnation application on June 5, 2003. Prior to the condemnation hearing scheduled for August 26, 2003, Lewis filed an application in the district court to enjoin the hearing. The plaintiff disputed that the property was a public nuisance. Specifically, Lewis argued that before a city may condemn property as a public nuisance, the city must offer the property owner an evidentiary hearing before an independent body to determine whether the property is actually a public nuisance. The district court denied Lewis's request for a temporary injunction, and Lewis filed this appeal.

Subsequently, the condemnation hearing was held, and the compensation commission awarded Lewis $259,500 for the property. On September 10, 2003, the city deposited a check in this amount with the sheriff. Since that date, the city has cleaned up the property and secured the premises in anticipation of selling the property. Lewis appealed the condemnation award to the district court.

Following these events, the city filed a motion to dismiss this appeal as moot based on its tender of the condemnation award and its possession of the property. Lewis resisted, claiming this appeal was not moot because the condemnation award was itself on appeal. Our court treated the notice of appeal as an application for interlocutory appeal, and granted the application. See Iowa R.App. P. 6.1(4). We ordered that the motion to dismiss be submitted with the appeal.

II. Mootness.

The city seeks to dismiss the property owner's appeal on mootness grounds. "Ordinarily, an appeal is deemed moot if the issue becomes nonexistent or academic and, consequently no longer involves a justiciable controversy." State v. Hernandez-Lopez, 639 N.W.2d 226, 234 (Iowa 2002). The test is "whether an opinion would be of force or effect in the underlying controversy." Iowa Bankers Ass'n v. Iowa Credit Union Dep't, 335 N.W.2d 439, 442 (Iowa 1983) (finding department's rescission of rules rendered academic any decision by this court as to validity of rules).

The city relies on this court's decision in Welton v. Iowa State Highway Commission, 208 Iowa 1401, 227 N.W. 332 (1929), to support its argument that the present appeal is moot. In Welton, an orchard owner sought to enjoin the State from establishing a highway through his orchard. 208 Iowa at 1402, 227 N.W. at 332. On appeal, it was shown that the land in question, including the orchard, had been taken, and the road had been fully constructed through the premises. Id. at 1402-03, 227 N.W. at 333. We pointed out the property owner had not sought a restraining order to maintain the status quo during the pendency of the appeal, and had "apparently abandoned his original claim for an injunction," seeking damages for the orchard's condemnation instead. Id. at 1403, 227 N.W. at 333. Under these circumstances, we held, the appeal was moot. Id.; accord Gunnar v. Town of Montezuma, 228 Iowa 581, 584, 293 N.W. 1, 3 (1940) ("This court has repeatedly recognized that injunctive relief cannot be had where the threatened action has become an accomplished fact.").

Our decision in Welton is helpfully contrasted with our opinion in Stellingwerf v. Lenihan, 249 Iowa 179, 85 N.W.2d 912 (1957). In that case, a property owner who had been served notice of condemnation promptly filed an action to enjoin the condemnation on the ground the reason for the condemnation was a subterfuge to obtain the property for other purposes. Stellingwerf, 249 Iowa at 180,85 N.W.2d at 913. We granted the property owner permission to appeal from the district court's denial of the plaintiff's request for a temporary injunction. Id. In discussing whether the property owner was entitled to injunctive relief, this court distinguished the Welton case, noting the plaintiff in Welton had "permitted the condemnation to be concluded and then raised the question of the legal right to take the property." Id. at 183, 85 N.W.2d 912, 85 N.W.2d at 915. We pointed out that because the road challenged in Welton "had become `an established fact' there was no manner in which we could interfere or grant relief" in that case. Id. at 184, 85 N.W.2d 912, 85 N.W.2d at 915 (citation omitted). Concluding the property owner in Stellingwerf properly challenged the grounds for the condemnation by an action in equity, we held the plaintiff was entitled to a temporary injunction pending a decision on the merits of his challenge to the condemnation. Id. at 184, 85 N.W.2d at 916.

The city claims the present case is just like Welton because it has deposited the condemnation award and has taken possession of the property. We disagree. While the condemnation has proceeded a little further in this case than it did in Stellingwerf, the city's ultimate goal — transfer of the property to a private individual for rehabilitation or demolition — has not become an accomplished fact like the road in Welton. There is nothing in the record to show that the property has been transferred or that substantial improvements have been made to the property that would place it beyond the power of this court to restore the parties to their former positions. Therefore, we hold the appeal is not moot.

III. Denial of Temporary Injunction.

"A temporary injunction is a preventive remedy to maintain the status quo of the parties prior to final judgment and to protect the subject of the litigation." Kleman v. Charles City Police Dep't, 373 N.W.2d 90, 95 (Iowa 1985). "The issuance or refusal of a temporary injunction rests largely in the sound discretion of the trial court, dependent upon the circumstances of the particular case." Kent Prods. v. Hoegh, 245 Iowa 205, 211, 61 N.W.2d 711, 714 (1953). Our review, therefore, is for an abuse of discretion. Kleman, 373 N.W.2d at 96.

One requirement for the issuance of a temporary injunction is a showing of the likelihood or probability of success on the merits of the underlying claim. See Max 100 L.C. v. Iowa Realty Co., 621 N.W.2d 178, 181 (Iowa 2001)

; Kent Prods.,

245 Iowa at 212,

61 N.W.2d at 715. Here, the plaintiff's underlying claim is an equitable action for permanent injunctive relief. See Iowa R. Civ. P. 1.1501 ("An injunction may...