Virginia Manor, Inc. v. City of Sioux City, 58914

• Decision Date: 18 January 1978
• Docket Number: No. 58914,58914
• Citation: 261 N.W.2d 510
• Parties: VIRGINIA MANOR, INC., Appellee, v. The CITY OF SIOUX CITY, Iowa, Appellant.
• Court: Iowa Supreme Court

Page 510

261 N.W.2d 510

VIRGINIA MANOR, INC., Appellee, v. The CITY OF SIOUX CITY, Iowa, Appellant.

No. 58914.

Supreme Court of Iowa.

Jan. 18, 1978.

Terrence L. Timmins, Sioux City, Asst. City Atty., for appellant.

Paul A. Mahr and Wilford M. Forker, Sioux City, for appellee.

Heard by MOORE, C. J., and MASON, LeGRAND, REYNOLDSON, and HARRIS, JJ.

REYNOLDSON, Justice.

This is an appeal by defendant Sioux City from an adverse judgment in a mandamus action brought by plaintiff Virginia Manor, Inc. (VMI) to compel the City and its council members to make an additional deposit with the sheriff following an increased award of damages in a district court appeal. See §§ 472.30, 472.31, The Code. For the purposes of this affirming opinion, we refer to the City as the sole defendant-appellant.

June 28, 1972, the City condemned real estate owned by VMI. The condemnation commission assessed the damages at $123,240. This sum was deposited with the sheriff and paid to VMI by court order pursuant to § 472.25, The Code.

VMI appealed to district court. November 26, 1974, the jury fixed VMI's damages at $232,260, an increase of $109,020 over the prior damage assessment. The City appealed from this award of damages. The April 14, 1977, affirming decision by the court of appeals became final May 4, 1977.

Meanwhile, on May 5, 1975, VMI made demand on the City to deposit with the sheriff the additional $109,020 awarded as damages by the district court jury. The City refused.

May 27, 1975, VMI brought this mandamus action to compel the City to make the additional $109,020 deposit "as required by Section 472.30 of the Code of Iowa and Section 18, Article I of the Constitution of the State of Iowa." VMI further prayed "for judgment against the defendants (City and council members), jointly and severally, for costs, including reasonable attorneys' fees."

The City moved to dismiss the petition, asserting the sole remedy available to VMI was ejectment under §§ 472.30 and 472.32, The Code. The City also contended that because a "plain, speedy, and adequate remedy" was available, a writ of mandamus should not issue.

VMI moved for summary judgment, alleging § 472.30, The Code, required the City to make the additional deposit. An affidavit attached to the motion disclosed the City "is now and has been since said date (June 28, 1972) in possession of said premises, graded the property and have (sic) continuously advertised the property for sale through its Urban Renewal Department."

Six days after submission of the above motion, the City filed a "Reply to Plaintiff's Motion for Summary Judgment." Attached was an affidavit which recited, "That save for the removal of the vacated North-South alley, grading of the lots to aid in the periodic performance of its statutory duties to control weeds during the summer months, and the one-time erection of a sign that has since been removed, neither the City * * * nor any of its agents has entered upon, been in possession of, controlled, or used the subject premises since June 28, 1972 * * * ." This affidavit further asserted the City was no longer in possession and had "relinquished possession of and removed itself from said premises."

October 30, 1975, district court filed an order which overruled the City's motion to dismiss, struck the tardy "Reply to Plaintiff's Motion for Summary Judgment" with its accompanying affidavit, granted the motion for summary judgment filed by VMI and directed that writ of mandamus should issue. The court directed "further proceedings (concerning § 472.34 costs and attorney fees) shall be had when the issues have been made by further motions or pleadings relating thereto."

November 25, 1975, the City appealed to this court and posted a $300 supersedeas bond. After the district court clerk issued a writ of mandamus, we entered an order staying all district court proceedings pending this appeal.

September 13, 1977, VMI filed motion to dismiss this appeal as moot, alleging that in April 1977 (apparently upon affirmance of the district court damage award by the court of appeals) the City paid the full amount of damages, together with costs and attorney fees.

The City resists the motion to dismiss, asserting resolution of the question whether the deposit should have been made would be determinative of the City's liability for costs, including reasonable attorney fees as provided by § 472.34, The Code. It further argues the appeal ought to be retained because substantive issues of statutory and constitutional interpretation are involved. We concluded the motion should be submitted with the appeal.

Restructured, the issues in this case in proper order are:

1) Was the ruling below directing writ of mandamus issue a final order or judgment vesting this court with jurisdiction?

2) Is this case moot, and if so, is a decision nonetheless warranted on the merits?

3) Was mandamus a proper remedy to compel the City to make the § 472.30 additional deposit to bring the deposit up to the full amount of damages assessed?

4) Should the district court clerk have issued a writ of mandamus after the City had filed a notice of appeal and posted a $300 supersedeas bond?

I. Jurisdiction.

VMI's "Petition for Writ of Mandamus" prayed for a writ requiring the deposit and "for judgment against defendants * * * for costs, including reasonable attorneys' fees." But the motion for summary judgment was limited to the mandamus relief, and the court's order was confined accordingly.

Because trial court did not rule on the merits of VMI's prayer for "costs, including reasonable attorneys' fees," VMI argues the summary judgment entered was an interlocutory order and not appealable. See rule 1, Iowa Rules of Appellate Procedure. We disagree.

The "Petition for Writ of Mandamus" was aimed at securing compliance with § 472.30, The Code ("If, on the trial of the appeal, the damages awarded by the commissioners are increased, the condemner shall, if he is already in possession of the property, make such additional deposit with the sheriff, as will, with the deposit already made, equal the entire damages allowed. * * * ").

There is an indication in papers filed below and here that the other relief prayed for in VMI's petition costs, including attorney fees was based on a different statute, § 472.34 ("Should the applicant decline, at any time after an appeal is taken as provided in section 472.18, to take the property and pay the damages awarded, he shall pay, in addition to the costs and damages actually suffered by the landowner, reasonable attorney fees to be taxed by the court."). The City's brief asserts "that VMI's prayer for recovery of costs including reasonable attorneys' fees constitutes in actuality a separate cause of action."

The only allegation in VMI's petition which supports this branch of the prayer is a statement that plaintiff "will incur in the future indebtedness for attorney's fees in the enforcement of its statutory and constitutional rights." Chapter 661 ("Mandamus") makes no provisions for taxation of attorney fees as part of the costs. Ordinarily attorney fees are not recoverable as costs unless explicitly provided for by statute. Harris v. Short, 253 Iowa 1206, 1208, 115 N.W.2d 865, 866 (1962).

Properly pled, the joinder of a § 472.34 damage claim with this action for mandamus would have been improper. See § 611.12, The Code. In absence of an improper joinder motion pursuant to rule 27(b), Rules of Civil Procedure, the court could have severed such a claim for separate trial. Rule 186, R.C.P.

In the case before us, there was no proper pleading to support attorney fees under any theory. We view the court's ruling that such a claim should await "further motions or pleadings relating thereto" as merely preserving VMI's right, if any, to bring such a claim in the future, and rejecting consideration of such claim in the mandamus proceeding.

We think trial court's judgment was a final appealable disposition. We have the requisite jurisdiction to proceed.

II. Mootness.

A mootness issue results from the City's payment of the additional damages, costs, and attorney fees in the condemnation case. It is raised by VMI's motion to dismiss and the City's resistance, described above.

The City argues against dismissal, asserting resolution of this mandamus issue would be determinative of its liability for § 472.34 costs, including attorney fees. But ordinarily we apply the rule that an appeal, otherwise moot, will not be decided merely to settle the issue of liability for costs. Johnston v. Kirkville Ind. Sch. Dist., 240 Iowa 1328, 1329, 39 N.W.2d 287, 288 (1949); Fish v. City of Sioux City, 210 Iowa 862, 863-864, 232 N.W. 118, 118 (1930). We need not decide whether this rule should be invoked where, as here, the cost question differs materially from the usual question of costs on appeal. See 5 C.J.S., Appeal & Error, § 1354(1)d, pp. 417-418 (1958). A more fundamental rule applies.

Where the issue presented has constitutional implications, the requisite degree of public interest, involves statutory construction and is likely to recur, we sometimes will adjudicate an appeal otherwise moot. Catholic Char. of Arch. of Dubuque v. Zalesky, 232 N.W.2d 539, 543 (Iowa 1975); Board of Dir. of Ind. Sch. Dist. of Waterloo v. Green, 259 Iowa 1260, 1264, 147 N.W.2d 854, 856 (1967).

The question here necessarily has a bearing on whether § 472.30 as interpreted by the City violates the constitutional mandate that "(p)rivate property shall not be taken for public use without just compensation first being made, or secured to be made to the owner thereof, as soon as the damages shall be assessed by a jury * * * ." (emphasis supplied) Iowa Constitution, art. I, § 18.

The City contends with some logic a statutory interpretation to determine available remedies would be invaluable in charting the future course of potential condemners, including painful budgetary decisions. It further...