Opinion
No. 5-134 / 04-0173
Filed April 28, 2005
Appeal from the Iowa District Court for Polk County, Scott Rosenberg, Judge.
Defendant appeals from an order of forcible entry and detainer. REVERSED.
Richard O. McConville of Coppola, Sandre, McConville Coppola P.C., West Des Moines, for appellant.
Richard J. Schmidt of Berg, Rouse, Spaulding Schmidt, P.L.C., Des Moines, for appellee Zona Merryman.
Considered by Sackett, C.J., and Zimmer and Hecht, JJ.
Plaintiff-appellee Zona Lou Merryman served defendant-appellant Sandy Fulton with a three-day notice to quit and then filed a forcible entry and detainer action seeking the removal of Fulton from property in Clive, Polk County, Iowa, that Fulton and co-defendant Wayne R. Merryman, Jr. occupied for some time. Wayne, plaintiff's son, had purchased the property from plaintiff on a contract which he had allegedly forfeited. The district court ordered the removal, and this appeal by Fulton followed. Fulton claims the district court erred in determining: (1) it had subject matter jurisdiction of the action when none of the grounds for bringing an action under Iowa Code chapter 648 (2003) existed, (2) her payments to plaintiff on an installment real estate contract gave her an interest in the real estate, and (3) the plaintiff was not entitled to a forcible entry and detainer decree against her. Fulton further claims this action should have been dismissed when the hearing on the matter was not set within the seven-day period required by Iowa Code section 648.5. We dismiss the action.
Plaintiff and Wayne both have filed appellee's briefs. They both contend the matter is moot, but if we determine it is not moot, it should be affirmed because the district court had subject matter jurisdiction of the controversy and the district court was correct in holding that Fulton had no rights against the real estate. Plaintiff further contends the district court was correct in not dismissing the action because the hearing was not set within the time provided in the statute.
Our review of a forcible entry and detainer action, which is tried in equity, is de novo. Iowa Code § 648.5; Capital Fund 85 Ltd. P'ship v. Priority Sys., LLC, 670 N.W.2d 154, 157 (Iowa 2003); 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." Capital Fund, 670 N.W.2d at 157. The defendant has the burden to prove the affirmative defenses she raises. Id.
We find the following facts. In about 1992 Wayne and Fulton, who were boyfriend and girlfriend, together with Fulton's two children moved into the home in Clive that plaintiff and her husband, who is now dead, had purchased for them. On July 25, 1994 Wayne signed a contract to purchase the real estate from his parents. The purchase price was $55,000. There was a $2,000 down payment, and the balance was payable at the rate of $341.48 a month. Fulton was not named as a buyer on the contract. Fulton made one hundred of the one hundred and eighteen payments that were made to plaintiff on the contract, but she never was a party to the written contract, though she testified that Wayne told her her name would be put on it. In addition to money payments, Fulton also contributed to making improvements to the property.
According to plaintiff at trial there also was credit given for $10,000 of sweat equity.
On August 7, 2003 Wayne accepted service of a notice of forfeiture of real estate contract. The notice stated he had failed to make monthly payments and pay real estate taxes on the Clive property in the total amount of $16,937, and that unless the defaults were corrected within thirty days of the service of the notice, together with a $50 attorney fee, the contract would stand forfeited. Plaintiff had signed and dated an affidavit in support of forfeiture of real estate contract on August 6, 2003, the day before service of the forfeiture notice was accepted by Wayne. The affidavit was notarized, but not until February 17, 2004. The affidavit indicated all parties in possession of the real estate had been served and more than thirty days had passed since the notice of forfeiture was served and the default had not been removed.
The notice does not comply with section 656.6 but it was conceded that the default on the contract was not corrected within thirty days of Wayne's acceptance of service.
No notice of forfeiture of the contract was ever served on Fulton or her twenty-year-old son who lived on the premises, though plaintiff acknowledged at trial she was aware they resided on the premises.
Iowa Code section 656.2(2) with reference to notice of forfeiture of a real estate contract, provides that "[t]he vendor shall also serve a copy of notice required in subsection 1 on the person in possession of the real estate, if different than the vendee; and on a person who asserts a claim against the vendee's interest." While this issue was argued in a post trial brief it is not raised as an issue on appeal.
On September 24, 2003 both Wayne and Fulton were served with a three-day notice to quit. The basis for Wayne's notice was that he "failed to pay on the contract for said premises when due; failed to pay real estate taxes and that the real estate contract has been forfeited." The basis for Fulton's notice was "that you have no legal claim to this property and you are squatting with no lease, contract or mortgage to the property."
Then on October 2, 2003 plaintiff filed the application for a forcible entry and detainer that led to this appeal, naming both Wayne and Fulton. As to Fulton, plaintiff alleged she had no legal right or claim to the property; Fulton was not a party to the real estate contract between Wayne and plaintiff; the contract had been forfeited, and Fulton was illegally squatting on the property; and that she has no lease, contract, or mortgage to said property. Plaintiff stated a three-day notice to quit had been served on Fulton. Plaintiff requested a hearing within seven days and that an order of removal then issue. On the same day, the district court entered an order setting a hearing on the application for October 10, 2003. The hearing date was one day beyond the seven-day period provided for in Iowa Code section 648.5 for setting a hearing date on such an application. Fulton moved to dismiss the action contending, because of the failure to comply with the statutory requirement for a hearing date, the district court was without jurisdiction. Fulton also filed an answer and raised affirmative defenses, contending she is an equitable owner of the property by agreement with Wayne and that this ownership was with the knowledge and acquiescence of plaintiff, who accepted payments that Fulton made. She further alleged as an affirmative defense that she was not given the right to cure the default on the real estate contract and she was unaware Wayne had been served. She further contended plaintiff was estopped from serving the notice of forfeiture without giving her a right to cure the default.
The district court denied the motion to dismiss and granted the application for forcible entry and detainer on October 15, 2003. The court reasoned the requirement for holding a hearing within the seven-day period was for the benefit of the party bringing the action and the court concluded Fulton was not prejudiced by holding a hearing one day beyond the period authorized by section 648.5. The court concluded that any contract payments made by Fulton did not automatically give her a legal or equitable interest in the property. The court further noted that the real estate contract was in default for the failure to make contract payments and tax payments. The court concluded that even if Fulton had some interest through the real estate contract, her rights could be no greater than the rights of Wayne whose default would make the action still viable. The court determined that Fulton gained no additional rights by making the payments. The court ordered Wayne and Fulton to vacate the property and plaintiff to be placed in possession.
On October 22, 2003, Fulton filed a motion to dismiss for lack of subject matter jurisdiction, a motion for new trial and a motion to reconsider pursuant to Iowa Rule of Civil Procedure 1.904(2). Fulton claimed the court lacked subject matter jurisdiction over the forcible entry and detainer action. Fulton alleged that plaintiff failed to assert any of the statutory grounds listed in section 648.1 for bringing such an action. Fulton requested the district court to amend its ruling to recognize her interest in the property as established by her payments on the contract. The court district denied all post trial motions.
At this point Fulton appealed. Both plaintiff and Wayne filed motions to dismiss her appeal claiming the appeal is now moot because she has left the premises. This Supreme Court denied the motions. Both parties raised the issue again in their appellees' briefs. It has been decided and we will not address this issue again.
We first address Fulton's contention that the court did not have subject matter jurisdiction to hear the matter.
Iowa Code section 648.1 lists the grounds for when the remedy of forcible entry or detention is allowable. It provides:
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.
2. Where the lessee holds over after the termination of the lease.
3. Where the lessee holds contrary to the terms of the lease.
4. Where the defendant continues in possession after a sale by foreclosure of a mortgage, or on execution, unless the defendant claims by a title paramount to the lien by virtue of which the sale was made, or by title derived from the purchaser at the sale; in either of which cases such title shall be clearly and concisely set forth in the defendant's pleading.
5. For the nonpayment of rent, when due.
6. When the defendant or defendants remain in possession after the issuance of a valid tax deed.
Iowa Code chapter 631 governs small claims actions. Relative to the forcible entry and detainer remedy, Iowa Code section 631.1(2) provides:
The district court sitting in small claims shall have concurrent jurisdiction of an action for forcible entry and detainer which is based on those grounds set forth in section 648.1, subsections 1, 2, 3 and 5.
The district court sitting in small claims therefore has jurisdiction for forcible entry and detainer actions only in the following instances:
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.
2. Where the lessee holds over after the termination of a lease.
3. Where the lessee holds contrary to the terms of the lease.
4. For the nonpayment of rent, when due.
Robinson v. Black, 607 N.W.2d 676, 677-78 (Iowa 2000). Lacking proof of one of the above situations the district court sitting as a small claims court does not have jurisdiction to hear this case. See id. at 679.
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." The disjunctive phraseology of this subsection requires a plaintiff to prove only one of these elements. Capital Fund 85 Ltd. P'ship v. Priority Sys., LLC, 670 N.W.2d 154, 157 (Iowa 2003).
There is no language in the statute expressly forbidding application of section 648.1(1) where the court is required to interpret a contract that is the subject of another action, though determining the ancillary legal rights of the parties is not the primary object of the statute. See id.
Fulton relies on Robinson, 607 N.W.2d at 678, and Warren v. Yocum, 223 N.W.2d 258, 262-63 (Iowa 1974). In Robinson, the court said it has long recognized that a vendor who has forfeited a real estate contract can bring a forcible entry and detainer action only if the contract expressly or impliedly creates a landlord-tenant relationship upon forfeiture. Robinson, 607 N.W.2d at 678. Fulton contends plaintiff sought possession based on an alleged forfeiture and not a landlord-tenant relationship. We agree. While there was a reference in the record to a rent situation, from our review of the facts there is no evidence that would show that Fulton was a tenant after the real estate contract was signed.
Plaintiff and Wayne counter Fulton's argument contending that Fulton was no more than a licensee as was the homeowner's girlfriend in Bernet v. Rogers, 519 N.W.2d 808 (Iowa 1994). In Bernet, the court recognized that the grounds for a forcible entry and detainer action are set out in Iowa Code section 648.1 and then noted that the facts in Bernet do not fit any of those grounds. Bernet, 519 N.W.2d at 811. Nevertheless, the court thought the homeowner in using forcible entry and detainer used the right remedy. Id. The court noted that "in interpreting the statute in question (forcible entry and detainer) . . . we must give it a liberal construction with a view to promote its object. The object . . . is to enable a person entitled to possession of real estate to obtain such possession from any one illegally in the possession of same." Id. (quoting Rudolph v. Davis, 239 Iowa 372, 375, 30 N.W.2d 484, 486 (1948)). The Bernet court went on to say the only question in a forcible entry and detainer action is whether the defendant is wrongfully detaining possession of the real property at the time of the trial, which they found the live-in was doing in occupying the home against the homeowner's wishes. Id. The court found in these circumstances she was "nothing more than a trespasser, wrongfully detaining the property" and "was holding his house hostage." Id.
In Petty v. Faith Bible Christian Outreach Ctr., Inc., 584 N.W.2d 303, 308 (1998) the court stated:
The following language from our opinion in Bernet demonstrates that our focus was on whether the girlfriend had ever had any interest in the property, not merely whether she had an interest at the time of the FED hearing.
Moreover, we think Skip was not required to give Sharon a three-day notice to quit because this notice provision applies only where the defendant has had some kind of interest in the property. See Iowa Code §§ 648.1(2), (3), (4), (5), (6); 648.3. Because Sharon had no such interest, she was not entitled to the notice. For the same reason, we think the thirty-day peaceful possession bar does not apply.
(Emphasis supplied).
It is not entirely clear how the facts here fit into Robinson and Bernet. Plaintiff's effort to reclaim the property was the result of a forfeiture action, but whether Fulton had status other than a licensee is not clear either. However, she was required to be served with the forfeiture notice and she was not served. She, unlike the girlfriend in Bernet, had made substantial payments on the house contract which were accepted by plaintiff, and Fulton was claiming a contract right.
While Wayne has on appeal adopted the arguments of plaintiff, he was not the one who sought Fulton's removal in the forcible entry and detainer action. Fulton's entry on the property came on Wayne's invitation and with his permission. Plaintiff sought Fulton's removal based only on her status as a forfeiting contract seller. There is no contention that Fulton has by force, intimidation, fraud, or stealth entered upon the plaintiff's prior actual possession, nor are there facts which implicate a landlord-tenant relationship. One who claims possession only as a forfeiting contract seller cannot use a forcible entry and detainer action to regain the premises. See Robinson, 607 N.W.2d at 678; Warren, 223 N.W.2d at 262-63. The district court sitting as a small claims court did not have jurisdiction to hear this case. See Robinson, 607 N.W.2d at 678.
The next issue we address is whether the district court lost jurisdiction to consider a forcible enter and detainer action when the hearing on the matter was set for and held beyond the seven-day period required by Iowa Code section 648.5, which provides:
The court within the county shall have jurisdiction of actions for the forcible entry and detention of real property. 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 that 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.
(Emphasis supplied).
The initial question in any dispute over the meaning of a statute is whether the provision in question contains ambiguity. Iowa West Racing Ass'n v. Iowa Racing and Gaming Com'n, 546 N.W.2d 898, 900 (Iowa 1996); Citizens' Aide/Ombudsman v. Miller, 543 N.W.2d 899, 902 (Iowa 1996). A statutory provision is ambiguous if reasonable persons can disagree as to its application. Iowa West Racing, 546 N.W.2d at 900. In the absence of an ambiguity, a statute will be applied in accordance with its plain and ordinary meaning. Id. When the language of a statute is plain and its meaning is clear, construction is unnecessary and we are not permitted to look beyond the statute for its meaning. Consolidated Freightways Corp. v. Nicholas, 258 Iowa 115, 121, 137 N.W.2d 900, 904 (1965).
The rules of statutory construction cannot be employed to raise the ambiguity; rather the ambiguity must be found prior to employing the rules of statutory construction. Iowa West Racing, 546 N.W.2d at 900. Only if we first find an ambiguity in the statute, can we consider the parties' conflicting arguments applying the rules of construction. See id. We find no ambiguity here. The statute's words plainly provide: "The court shall order a hearing not later than seven days from the date of the order." Iowa Code § 648.5; see Iowa Code § 4.1(25)(a) ("The word ` shall' imposes a duty."). The last day the hearing could be ordered was the seventh day, Thursday, October 9, 2003, not one day later, Friday, October 10, 2003, as happened here. The legislature could have worded the statute so as to give the court discretion to extend the date or consider prejudice to the parties. But the legislature did not include such language. Therefore we apply the words actually adopted, not those which the legislature might, or even perhaps should, have adopted. Iowa R. App. P. 6.14(6)( m). When the hearing was not set or held within seven days of the time the order was entered, the district court was divested of jurisdiction of the case. An issue Fulton raised prior to the hearing and an issue that was litigated at the hearing. The action is dismissed at plaintiff's cost.
REVERSED.
Zimmer, J. concurs specially.
I agree with the majority's conclusion that the district court lost jurisdiction to consider the forcible entry and detainer action when the hearing on the matter was held beyond the seven-day period required by Iowa Code section 648.5. Accordingly, I would reverse on that basis alone, with no further discussion of the other issues presented.