War Eagle Village Apartments v. Plummer

• Decision Date: 20 November 2009
• Docket Number: No. 07-1217.,07-1217.
• Citation: 775 N.W.2d 714
• Parties: WAR EAGLE VILLAGE APARTMENTS, Appellee, v. Geneva PLUMMER, Appellant.
• Court: Iowa Supreme Court

775 N.W.2d 714

WAR EAGLE VILLAGE APARTMENTS, Appellee, v. Geneva PLUMMER, Appellant.

No. 07-1217.

Supreme Court of Iowa.

November 20, 2009.

William J. Niebel, Sioux City, for appellant.

William G. Deck of Deck & Deck, L.L.P., Sioux City, for appellee.

BAKER, Justice.

Geneva Plummer was ordered to vacate her apartment under a statutory scheme that she claims is not calculated to give her notice of the hearing where her eviction was to be determined. Plummer is a residential tenant who has applied for discretionary review from an order issuing execution for removal in a forcible entry and detainer ("FED") action. This court is asked to decide: (1) whether the service of original notice of forcible entry and detainer by certified mail, with no requirement that a signed return receipt be obtained, as allowed by Iowa Code section 562A.29A(2), violates the Due Process Clauses of the United States Constitution and the Iowa Constitution; (2) whether Iowa Code section 562A.29A(2) violates the equal protection clause of the Iowa Constitution because it applies only to residential tenants and not to commercial or agricultural tenants; and (3) alternatively, whether Iowa Code section 562A.29A(2) could be read narrowly to mandate that service is not completed until someone signs a return receipt for the notice. Because Iowa Code section 562A.29A(2) does not require service which is reasonably calculated to reach the intended recipient, we find the FED statutory notice scheme violates the due process provision of the Iowa Constitution on its face.

I. Background Facts and Proceedings.

This case involves a landlord-tenant dispute. Plummer was a tenant at War Eagle Village. She lived in an apartment at this complex from approximately February 1, 2006, until September 18, 2006, when a warrant of removal was issued. In July 2006, Plummer was unable to pay her rent and became delinquent in the amount of $67.00. The property manager at War Eagle testified that on July 17, 2006, she both mailed and had an employee personally deliver to Plummer a notice that procedures to terminate her lease would commence in three days if the delinquent rent was not paid. Plummer claimed she never received this notice.

Because Plummer failed to pay the delinquent rent within the three-day time period given, War Eagle commenced an action on July 24, for FED under Iowa Code chapter 648, requesting possession of the apartment. On this date the original notice for FED was mailed to Plummer by certified mail. The hearing upon the FED action was set for July 31. No attempt at personal service on Plummer was ever made. When Plummer failed to appear at the hearing, a default judgment was entered, and she was ordered to vacate the premises. Plummer did not receive the original notice informing her of the July 31 trial until August 2 when she retrieved a certified letter from the post office.

On August 3, Plummer appealed the default judgment. The district court waived the appeal bond and stayed execution of the writ of removal until the opinion in another Woodbury County FED appeal to the district court with the same constitutional issues regarding certified mail service was issued. On August 25, the other case was decided against the tenant, and the stay of execution was lifted.

On October 2, Plummer requested an evidentiary hearing on appeal, claiming that she had not had an opportunity to "present evidence ... regarding the constitutional inadequacies of certified mail notice, with respect to [her] specific situation or to Iowa FED cases generally." The district court granted Plummer's request and set a hearing to allow her to create an "evidentiary record to demonstrate why she did not receive notice of the [FED] trial in the above case so she can then argue why the notice requirement for small claims court [is] constitutionally defective as to her and her circumstances."

An evidentiary hearing was held from which we find the following facts. The original notice was mailed by certified mail on Monday, July 24, 2006. Although there is no record from the post office regarding this specific piece of mail, a "first" attempt at delivery of the certified mail was probably made by a postal worker approximately three days later on Thursday, July 27. Plummer testified that although someone would have been home at the normal time for mail delivery at the apartment, no postal employee ever came to her door to deliver the certified letter. The mail carrier assigned to her address did not testify.

An employee of the United States Postal Service in Sioux City testified that when a certified letter is received by the post office, a carrier is generally assumed to have attempted to deliver the certified letter to the door of the addressee. If the resident is home, the carrier will obtain the resident's signature on a Form 3849 notice and personally deliver the article. The Domestic Mail Manual, however, does not mandate that a to-the-door delivery attempt be made. The postal employee also testified that she has "overheard mail carriers say that they have to cut the times on their routes," and to do that "they could just drop the 3849 in the mailbox and go. They wouldn't have to attempt the delivery [to the door] which would take time."

Regardless of whether a to-the-door attempt is actually made by the postal carrier, if the carrier does not obtain a signature on the Form 3849, the carrier is required to leave a Form 3849 notice in the resident's mailbox. This form informs the addressee that a delivery was attempted when no one was home and that the certified letter can be picked up at the post office within the next fifteen days. After the fifteen days, the form is returned to the sender. Plummer testified that she did not receive the Form 3849 that should have been left at the time of the first attempted delivery of the certified letter that probably occurred on Thursday, July 27.

According to the postal employee, there is a "standing order" at the Sioux City post office that a second Form 3849 should be filled out and mailed to the addressee, so as to arrive five days after the first Form 3849 was left in the addressee's mail box. Plummer testified that she received this second Form 3849 notice on August 1, the day after the scheduled hearing. It is on this basis that it is assumed that the first attempt at delivery was on July 27. Upon the advice of Iowa Legal Aid, Plummer took this second notice to the post office on August 2, and received the certified letter containing the original notice for FED. On this same day, she retrieved notice of the default judgment entered against her providing for a writ of removal to issue on August 3.

After the evidentiary hearing, the district court affirmed the judgment for possession finding that Iowa Code section 562A.29A(2) did not violate the Due Process Clauses of the United States Constitution and the Iowa Constitution, did not violate Iowa's equal protection clause, and did not require that either the tenant or someone else sign the receipt for an FED petition sent via certified mail. Plummer filed a request for discretionary review which we granted.

II. Scope of Review.

Review of constitutional claims is de novo. State v. Nail, 743 N.W.2d 535, 538 (Iowa 2007). We review issues of statutory construction for errors at law. State v. Sluyter, 763 N.W.2d 575, 579 (Iowa 2009).

III. Merits.

A. Statutory Scheme. Iowa Code section 648.5 (2005) of Iowa's FED statute provides:

The court within the county shall have jurisdiction of actions for forcible entry and detainer. They shall be tried as equitable actions. Unless commenced as a small claim, a petition shall be presented to a district court judge.

Upon receipt of the petition, the court shall order a hearing which shall not be later than seven days from the date of the order. Personal service shall be made upon the defendant not less than three days prior to the hearing. In the event that personal service cannot be completed in time to give the defendant the minimum notice required by this section, the court may set a new hearing date. A default cannot be made upon a defendant unless the three days' notice has been given.

(Emphasis added.)

Despite the requirement in Iowa Code section 648.5 that mandates personal service, Iowa Code section 562A.29A, regarding residential tenants, provides in pertinent part:

Notwithstanding sections 631.4 and 648.5 ... a petition for forcible entry and detainer pursuant to chapter 648, may be served upon the tenant in any of the following ways:

1. By personal service.

2. By sending notice by certified mail or restricted certified mail, as defined in section 618.15, whether or not the tenant signs a receipt for the notice.

Finally, Iowa Code section 562A.29A(2) must be read in conjunction with Iowa Code section 562A.8 which provides, in part:

A person "notifies" or "gives" a notice or notification to another by taking steps reasonably calculated to inform the other in ordinary course whether or not the other actually comes to know of it. ... In the case of the tenant, notice is received when it comes to the tenant's attention or when it is delivered in hand to the tenant or mailed by certified mail or restricted certified mail, as defined in section 618.15, whether or not the tenant signs a receipt for the notice, to such person at the place held out by such person as the place for receipt of the communication, or in the absence of such designation, to such person's last known place of residence.

(Emphasis added.)¹

To summarize, in a residential landlord-tenant situation, a hearing must be set not later than seven days from the date of the order scheduling the hearing. Iowa Code § 648.5. Service is required to be made upon the defendant not less than three days prior to the hearing. Id. Service may be made by certified mail as opposed to personal service, and a signed receipt verifying delivery is not required. Id. ...