author: FOLEY, Judge.

text:
    STATE of Minnesota, Respondent, v. Raymond Joseph TRAYLOR, Appellant.
    No. C6-01-244.
    Court of Appeals of Minnesota.
    March 26, 2002.
    Review Denied May 14, 2002.

      Mike Hatch, Attorney General, St. Paul; and Amy Klobuchar, Hennepin County Attorney, Elizabeth V. Cutter, Assistant County Attorney, Minneapolis, for respondent.

      John M. Stuart, State Public Defender; and Joe Margulies, Special Assistant Public Defender, Margulies & Richman, PLC, Minneapolis, for appellant.
    Considered and decided by SCHUMACHER, Presiding Judge, HANSON, Judge, and FOLEY, Judge.
   OPINION

FOLEY, Judge.

On appeal from his conviction for second-degree assault and a fifth-degree controlled substance offense, appellant argues that the district court erred in admitting testing of deoxyribonucleic acid (DNA) fragments using kits by a manufacturer who has not disclosed methodology and validation studies that would permit peer review of the test results. Appellant also argues that the court abused its discretion by imposing a double upward departure on the assault based on a finding of particular cruelty that was not supported by the record. Lastly, in his pro se supplemental brief, appellant argues that his right to a speedy trial was violated. We affirm.

FACTS

On November 13, 1999, Debra Clemons reported to the Minneapolis police that she had been stabbed by appellant Raymond Joseph Traylor, and that he was sleeping in her home. The police found Traylor in Clemons’s home, arrested him, and recovered a bloody knife and a small amount of cocaine in his pocket. Traylor was charged with one count of second-degree attempted murder, one count of second-degree assault, and one count of a fifth-degree controlled substance offense.

The state sought to admit DNA evidence obtained through a new DNA testing technique employed by the state that requires a smaller sample size and is much quicker to read than older techniques. The testing involves Polymerase Chain Reaction (PCR) technology, which allows use of smaller sample sizes and examination of fewer, easier to identify, locations on the DNA (known as Short Tandem Repeats (STR)), making this technique quicker to process. To extract DNA material using this technique, technicians use kits supplied by private manufacturers. The manufacturer of the kits used here is Perki-nElmer, Inc. (PerkinElmer), and the kits are labeled “Profiler Plus” and “Cofiler.”

The district court ruled the DNA evidence obtained through PCR STR testing admissible. At trial, Traylor denied stabbing Clemons and, in fact, denied ever possessing the knife in evidence. The state introduced DNA evidence purporting to establish that blood on the knife and Traylor’s pants contained the same DNA as Clemons’s blood. The jury convicted Traylor of the assault and drug offenses, and acquitted him of the attempted murder charge. The district court sentenced Traylor to a double durational departure of 102 months and this appeal followed.

ISSUES

1. Do the guidelines promulgated by the Technical Working Group on DNA Analysis Methods (TWGDAM) continue to apply to the consideration, in Minnesota, of whether the procedures employed in PCR STR testing are reliable?

2. Is the admission of the DNA evidence harmless beyond a reasonable doubt where the DNA evidence has little probative value and where substantial other evidence supports the conviction?

3. Did the district court abuse its discretion in imposing an aggravated sentence upon a defendant who, after stabbing the victim, prevented her from seeking medical attention, and continued to physically abuse her?

4. Are a defendant’s speedy trial rights violated where most of the excessive delays are attributable either to DNA testing or to the unavailability of defense counsel?

ANALYSIS

I.

Traylor’s appeal centers on the admission of the PCR STR evidence. Traylor argues that the testing procedures employed by the Minnesota Bureau of Criminal Apprehension (BCA) do not meet the reliability requirements of State v. Schwartz, 447 N.W.2d 422 (Minn.1989). In Minnesota, we determine the admissibility of evidence derived from new scientific techniques according to the test derived from Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). State v. Jobe, 486 N.W.2d 407, 419 (Minn.1992). The test is two pronged: (1) whether “experts in the field widely share the view that the results [of scientific testing] are scientifically reliable as accurate,” and (2) whether the laboratory complied with appropriate standards and controls. Id. (quoting State v. Mack, 292 N.W.2d 764, 768 (Minn.1980)).

Traylor does not contest that the PCR technique, in the abstract, is generally accepted in the scientific community, but easts his dispute over whether the Profiler Plus and Cofiler test kits, which use STR DNA fragments, are generally accepted in the scientific community. However, the actual focus of his challenge is whether these test kits produce reliable results and whether the kits have been designed in accordance with accepted guarantees on reliability, questions more appropriately considered under the second prong of the novel scientific evidence test. See Schwartz, 447 N.W.2d at 425-26 (considering, despite general acceptance of RFLP DNA analysis, whether testing company’s procedures were reliable under second prong of Frye-Mack).

Normally, conclusions about whether a technique is generally accepted are reviewed de novo, and findings regarding the foundational reliability of the evidence are reviewed for an abuse of discretion. Goeb v. Tharaldson, 615 N.W.2d 800, 815 (Minn.2000). Here, because the question of reliability is not a factual inquiry into whether the particular laboratory made errors, but rather the cold application of a set of guidelines to undisputed facts regarding how a particular commercial product was developed, we also review this question de novo. Cf. Boubelik v. Liberty State Bank, 553 N.W.2d 393, 402 (Minn.1996) (application of statute to undisputed facts reviewed de novo).

The crux of Traylor’s argument is that the PerkinElmer test kits and the usage employed by the BCA are not trustworthy and reliable because they were not developed in accordance with the standards promulgated by the Technical Working Group on DNA Analysis Methods (TWGDAM), a consortium of prominent DNA scientists from the United States and Canada organized by the FBI to establish appropriate standards for FBI laboratories. The state responds by arguing, as the district court concluded, that the TWGDAM guidelines have been superced-ed in Minnesota.

Beginning in 1989, the supreme court, in a series of cases, consistently and repeatedly held that the standards promulgated by TWGDAM were the standards that govern determinations of the reliability of a particular testing procedure. See, e.g., State v. Schneider, 597 N.W.2d 889, 894 (Minn.1999); State v. Johnson, 498 N.W.2d 10, 14 (Minn.1993); Jobe, 486 N.W.2d at 420 n. 4; Schwartz, 447 N.W.2d at 427-28.

However, in 1994, Congress, through the enactment of the DNA Identification Act of 1994, 42 U.S.C. 14131 (1994), created the DNA advisory board (DAB), which was to be appointed “not later than 180 days after September 13, 1994.” 42 U.S.C. § 14131(a)(1)(A). The board was directed to

develop, and if appropriate, periodically revise, recommended standards for quality assurance, including standards for testing the proficiency of forensic laboratories, and forensic analysts, in conducting analyses of DNA.

42 U.S.C. § 14131(a)(1)(C). The director of the FBI would then be directed to take the DAB recommendations into account when issuing the actual FBI standards. 42 U.S.C. § 14131(a)(2). Until the director acted upon these recommendations, the TWGDAM guidelines were statutorily deemed to continue as the director’s standards. 42 U.S.C. § 14131(a)(4). The DAB guidelines took effect as the “official” FBI standards on October 1,1998.

The DAB standards differ from the TWGDAM standards in many respects critical to this case — the major distinction being that the TWGDAM standards require that more information about the methodology be disclosed, and therefore be subjected to peer review and independent validation studies. The PCR STR testing conducted in this case satisfies the DAB standards, but is not based on a process readily available for validation by the scientific community and therefore does not appear to satisfy TWGDAM standards. Accordingly, the admissibility of the DNA evidence depends on whether the DAB standards have superceded the TWGDAM standards in Minnesota. They have not.

The DAB guidelines were approved on July 15, 1998, and took effect on October 1, 1998. Since then, Minnesota courts have reaffirmed the need for compliance with the TWGDAM guidelines. See, e.g., Schneider, 597 N.W.2d at 894 (citing Jobe’s reliance on TWGDAM and stating “the defense offered no evidence of any specific violation of * * * TWGDAM.”). Furthermore, much of the specific TWGDAM requirements that are at issue here (not required under the DAB guidelines) have been singled out as important by the supreme court. For example, in Schwartz, the supreme court noted:

The TWGDAM * * * standards stress that publication of a laboratory’s work product and data used in DNA analysis, as well as independent replication and validation studies are essential prerequisites to reliability. Efforts to assess the reliability of the commercial laboratories’ methodology consequently have been hindered because this information has not yet been made fully available. For example, [the laboratory] has not yet published data regarding its methodology and its probes are only selectively available.

447 N.W.2d at 427-28. We think it is clear that the supreme court has not only chosen the TWGDAM guidelines, but has even approved of guarantees of reliability contained in the TWGDAM guidelines that are absent from the DAB guidelines.

This court is an error-correcting court and not a doctrinal court. St. Aubin v. Burke, 434 N.W.2d 282, 284 (Minn.App.1989), review denied (Minn. Mar. 29, 1989). As such, we are compelled to follow the standards established by the supreme court. The supreme court has clearly and unequivocally adopted the TWGDAM guidelines and the guarantees of reliability contained therein — not merely whatever guidelines may currently serve as the official standards of the FBI. See Jobe, 486 N.W.2d at 419 (noting that supreme court has recognized guidelines as “appropriate for guiding DNA testing”); Schwartz, 447 N.W.2d at 427-28 (noting that TWGDAM guidelines stress that methodology is more reliable if subject to scrutiny). Accordingly, absent a contrary conclusion by our state’s highest court, the TWGDAM guidelines remain the standard for determining the reliability of DNA evidence.

II.

Although the district court erred by using the DAB guidelines to determine the admissibility of the DNA evidence, we need not consider the appropriateness of the evidence using the TWGDAM guidelines or even remand this case for application of the appropriate guidelines. Here, although the DNA evidence was certainly corroborative, the other evidence is strong, compelling, and more than sufficient to support the conviction.

This court will reverse a conviction based on the erroneous admission of objected-to evidence unless the admission was harmless beyond a reasonable doubt. State v. Shannon, 583 N.W.2d 579, 585 (Minn.1998). An error is harmless beyond a reasonable doubt “[i]f the verdict actually rendered was surely unattributable to the error.” State v. Jones, 556 N.W.2d 903, 910 (Minn.1996). The court must examine the record as a whole in assessing whether an erroneous admission of evidence was harmless, considering the strength of the state’s evidence and the weakness of any defense evidence. State v. Van Wagner, 504 N.W.2d 746, 749 (Minn.1993). As a general rule, an error is less likely to be prejudicial where the evidence of guilt is strong. State v. Dillon, 532 N.W.2d 558, 558 (Minn.1995).

Here, Clemons identified Traylor as the man who stabbed her and told the police that he could be found sleeping in her home. When the police arrived, they found Traylor asleep in Clemons’s bed with blood on his pants. The police also recovered a bloody knife' — a weapon that could have inflicted Clemons’s wound— from Traylor’s possession, and the jury’s verdict indicates it did not believe Tray-lor’s story that the knife had been planted into evidence. Finally, this was not a ease where a stranger identified the defendant. Clemons and Traylor shared an intimate relationship and Clemons gave a detailed and thorough description of the circumstances surrounding the stabbing. This evidence alone amply supports the verdict. Furthermore, the inculpatory impact of the DNA evidence was minimal. The DNA evidence was only probative toward establishing whose blood was on the knife. But Traylor never disputed that the blood on the knife came from Clemons. In fact, Traylor testified that he never possessed the knife or had even seen the knife before trial. The only way that evidence regarding whose blood was on the knife could have been prejudicial is if there was a significant question as to who had been cut with the knife. There was not. Under such circumstances, any error in the admission of the DNA evidence is harmless. See State v. Bauer, 512 N.W.2d 112, 116 (Minn.App.1994) (holding any error made in admission of DNA evidence was harmless where victim knew attacker and gave strong testimony about circumstances of attack), aff'd 516 N.W.2d 174 (Minn.1994).

III.

Traylor argues that there were inadequate grounds to support the double durational departure in his sentence. A district court’s sentencing decision will not be disturbed absent a clear abuse of discretion. State v. Schmit, 601 N.W.2d 896, 898 (Minn.1999). As noted, the presumptive term of imprisonment was 51 months. The district court imposed the 102-month sentence after finding that there were aggravating circumstances surrounding the commission of the offense. Although the state argues that the district court “stated several factors justifying upward departure,” in fact the court only listed one: that Traylor exhibited particular cruelty in committing the offense. The other factors enumerated by the state were either the individual facts comprising the basis for the court’s finding of particular cruelty, or factors that were only mentioned by the district court in contexts other than as justifications for the departure.

Nevertheless, even a single aggravating factor may support a double dura-tional departure. State v. O’Brien, 369 N.W.2d 525, 527 (Minn.1985). A durational departure is justified where the defendant’s conduct was significantly more serious than that typically involved in the commission of the charged offense. State v. Best, 449 N.W.2d 426, 427 (Minn.1989). Here, after the stabbing, Traylor refused to let Clemons out of her home for several hours so that she could receive medical attention. Furthermore, there was testimony that he disabled the telephones, further hindering her attempts to seek medical attention, and continued to abuse her after the stabbing. In this case, the district court’s conclusion that the crime was committed with particular cruelty was supported by the record and was not an abuse of discretion.

IV.

In his pro se supplemental brief, Traylor argues that his speedy trial rights were violated. Once a defendant makes a demand for a speedy trial, a trial must commence within 60 days after the demand unless good cause is shown. Minn. R.Crim. P. 11.10. This court reviews the record de novo to determine whether the district court used the proper standards for evaluating good cause, State v. Genung, 481 N.W.2d 130, 133 (Minn.App.1992), review denied (Minn. Apr. 13, 1992), but reviews the determination that there was good cause under an abuse of discretion standard. State v. Friberg, 435 N.W.2d 509, 515 (Minn.1989). In reviewing whether the district court abused its discretion in granting a continuance beyond 60 days, this court considers the reason for the delay, the defendant’s assertion of his right to a speedy trial, and the degree of prejudice suffered as a result of the delay. Id. at 513.

Traylor demanded a speedy trial on January 20, 2000, and a trial date was set for March 14, 2000. A continuance, which was agreed to by Traylor’s attorney, was granted until May 8, 2000, to enable both parties to obtain the DNA report. The trial was then continued from May 8, 2000 to July 17, 2000, due to the unavailability of a critical witness for the state, and Traylor was conditionally released. Finally, Traylor himself requested a continuance from July 17, 2000, because of the unavailability of one of his attorneys. The trial commenced on October 17, 2000.

This handling of Traylor’s case was perilously close to a denial of his fundamental right to a speedy trial. The manner in which his case was passed from judge to judge evokes the famous double-play combo of “Tinkers to Evers to Chance,” with no one examining the cumulative effect of the numerous continuances granted until a final judge granted Traylor his release pending trial. That said, upon total review, we cannot conclude that the district court abused its discretion, or that Tray-lor’s fundamental rights were violated by the delay. Although we do not approve of the delay, we note, importantly, that the delay was, initially, so that DNA evidence could be processed- — -usually a valid reason for delay. See State v. Stroud, 459 N.W.2d 332, 335 (Minn.App.1990) (noting that DNA evidence can both inculpate and exculpate and may be valid reason for delay). Although the DNA evidence was of little utility to the state, we cannot say that the decision to grant the continuance was in error. At a minimum, given Tray-lor’s story, the DNA evidence at least had the potential to be exculpatory, if not in-culpatory. Three months of the additional delay is directly attributable to the unavailability of one of Traylor’s attorneys. Finally, we note that the harshest effects of the delay were mitigated by the fact that Traylor was on conditional release during much of the delay.

DECISION

Although the admission of DNA evidence without compliance with the TWGDAM guidelines was error, the error was harmless because the DNA evidence had little inculpatory effect, and substantial additional evidence of guilt was present. Furthermore, the district court did not abuse its discretion in imposing a double durational departure in sentencing Traylor. Lastly, Traylor’s speedy trial rights were not violated by continuances granted to obtain the DNA testing and due to defense counsel’s unavailability.

Affirmed.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

      . TWGDAM has since been renamed SWGDAM — “technical” having been replaced with "scientific.”

      . Although the tests in Schneider were conducted before the adoption of the DAB guidelines, the guidelines were in effect when Schneider was published.

      . We note that the nine-page bibliography supplied by the state listing articles on STR DNA evidence played no part in the consideration or decision of this case.

      . According to the state, the factors considered by the district court were: (1) Traylor’s refusal to accept responsibility for his behavior; (2) Traylor's attempt to influence the jury during jury selection; (3) the particular cruelty with which Traylor treated the victim; (4) the fact that Traylor held the victim captive in her own home for several hours; (5) the particular level of vulnerability due to her level of intoxication; (6) the repeated physical abuse of the victim during her imprisonment; and (7) Traylor's refusal to allow the victim to leave or to seek medical treatment.


source: Caselaw Access Project

author: GORDON W. SHUMAKER, Judge.

license: Public Domain

text:
    Deborah NORDMARKEN, et al., Appellants, v. CITY OF RICHFIELD, Minnesota, Respondent.
    No. C6-01-1698.
    Court of Appeals of Minnesota.
    April 2, 2002.

      Thomas H. Goodman, Siegel, Brill, Gre-upner, Duffy & Foster, P.A., Minneapolis, for appellants.
    James J. Thomson, Mary D. Tietjen, Minneapolis, for respondent.
    Susan L. Naughton, League of Minnesota Cities, St. Paul, for amicus curiae League of Minnesota Cities.
    Andrew D. Parker, Nancy V. Mate, Minneapolis, for amicus curiae Metropolitan Council.
    Considered and decided by SHUMAKER, Presiding Judge, HANSON, Judge, and PARKER, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

GORDON W. SHUMAKER, Judge.

The district court granted partial summary judgment to respondent municipality, ruling that state law preempts the power of referendum contained in the municipality’s home rule charter. Appellant voters challenge that ruling as being contrary to law. Because we have determined that state law preempts local referendum on the subject at issue in this action, we affirm.

FACTS

A private developer submitted a plan to the City of Richfield for the development of approximately 40 acres of real estate. The developer’s proposal called for a planned unit development consisting of 1.5 million square feet of office space and 7,500 parking stalls. Part of the area to be developed was located in a zone designated for residential and neighborhood commercial use. The proposal was thus incompatible in part with both the city’s zoning classification and its comprehensive land use plan.

The city held various public hearings, and then preliminarily approved the amendment of its comprehensive land use plan to accommodate the proposed development. After the Metropolitan Council approved the amendment, the city held further public hearings and adopted ordinances amending the plan and rezoning the property to a classification suitable for office space and parking stalls.

The City of Richfield is a home rule charter city whose charter reserves to the voters the right to petition for referendum to approve or disapprove ordinances the city council enacts. The appellants are voters who live in Richfield. They filed with the city council petitions for referendums on the ordinances amending the comprehensive plan and rezoning the property in the proposed development. The city council rejected the petitions on the grounds that state law had preempted the right of referendum on the issues the appellants sought to include in the referendums and that any disapproval of the amendment and the rezoning would be in conflict with state law.

The appellants then brought this declaratory judgment action, seeking the district court’s determination that the city charter guaranteed the right of referendum on the issues in question. The respondent city asserted a counterclaim, asking the court to declare the petitions invalid and to determine that the right of referendum did not apply to the matter in controversy.

After hearing the parties’ cross-motions for partial summary judgment, the district court granted partial summary judgment to the respondent, holding the referendum would be in conflict with state law and that state law had preempted such land use issues. This appeal followed.

ISSUE

State statutes purport to provide a single body of law and a uniform procedure for the process for approving or disapproving local land use laws. Do those state statutes preempt the power of referendum, reserved in a municipal charter, on the issue of the process for approving or disapproving local land use laws?

ANALYSIS

There are no disputed facts on appeal. Thus, the question of whether state statutes prevail over a local charter provision is purely a question of law, which this court reviews de novo. Morton Bldgs., Inc. v. Comm’r of Revenue, 488 N.W.2d 254, 257 (Minn.1992). Because this is an appeal from a summary judgment in which there are no disputed material facts, we must decide whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990).

Home Rule Charter

“Any local government unit when authorized by law may adopt a home rule charter for its government.” Minn. Const, art XII, § 4. State law authorizes cities to adopt charters for their governance: “Any city in the state may frame a city charter for its own government in the manner hereinafter prescribed * ⅜ Minn.Stat. § 410.04 (2000). City charters are framed and amended through appointed charter commissions. Minn.Stat. § 410.05, subd. 1 (2000). Charter commissions have express statutory authority to frame charters to allow for referendum by the voters to repeal ordinances. Minn.Stat. § 410.20 (2000). The City of Richfield adopted a home rule charter that reserves to the people of the city the powers of initiative and referendum. Richfield, Minn., City Charter, Ch. 5, § 5.01 (1996).

A city governed by a home rule charter enjoys as to local matters all the powers of the state, except when those powers have been expressly or impliedly withheld. A.C.E. Equip. Co. v. Erickson, 277 Minn. 457, 460, 152 N.W.2d 739, 741 (Minn.1967). Despite the broad governance authority conferred through a home rule charter, any charter provision that conflicts with state public policy is invalid. Id. Furthermore, all charter provisions remain subject to state law:

The power conferred upon cities to frame and adopt home rule charters is limited by the provisions that such charter shall always be in harmony with and subject to the constitution and laws of the state.

State ex rel. Town of Lowell v. City of Crookston, 252 Minn. 526, 528, 91 N.W.2d 81, 83 (Minn.1958) (quotations omitted).

State Law

The district court held that the Municipal Planning Act of 1965(MPA) (enacted in 1965 and codified at Minn.Stat. §§ 462.351-364 (2000)), and the Metropolitan Land Planning Act (MLPA) (enacted in 1976 and codified at MinmStat. §§ 473.85-.871 (2000)), together prevail over the referendum provision in Rich-field’s home rule charter.

In its policy statement, the MPA cites the legislature’s finding that “municipalities are faced with mounting problems in providing means of guiding future development of land,” and states that the MPA’s purpose is

to provide municipalities, in a single body of law, with the necessary powers and a uniform procedure for adequately conducting and implementing municipal planning.

Minn.Stat,. § 462.351.

The MPA gives municipalities the authority to engage in comprehensive municipal planning activities. Minn.Stat. § 462.353, subd. 1. The act also provides that any community-based comprehensive municipal planning shall be coordinated with plans of the county and neighboring municipalities “in order to prevent the plan from having an adverse impact on other jurisdictions and to complement the plans of other jurisdictions.” Minn.Stat. § 462.3535, subd. 2. And the act gives municipalities general zoning authority. Minn.Stat. § 462.357, subd. 1.

The MLPA is based on the legislature’s findings that municipalities in the metropolitan area, including Richfield, are interdependent, that “problems of urbanization and development transcend local governmental boundaries,” and that there is a need to coordinate development plans and controls among the metropolitan-area municipalities so as “to ensure coordinated, orderly and economic development.” Minn.Stat. § 473.851.

The MLPA states one of the purposes shared by the MLPA, the interim ordinance authority in the MPA, and the Metropolitan Council’s statutory duty to review comprehensive municipal plans for “their compatibility with each other and conformity with metropolitan system plans” is

to * * * establish requirements and procedures to accomplish comprehensive local planning with land use controls consistent with planned, orderly and staged development and the metropolitan system plans * * *.

Id.

Preemption

Holding that the MPA and MLPA preempt the referendum provision in Rich-field’s home rule charter, the district court noted that the Minnesota legislature has fashioned an intricate scheme for regulating the process for adopting local land use planning laws:

The subject matter being regulated by the referenda at issue is the process by which a local governmental unit in the metropolitan area proposes, receives approval for, and adopts land use planning ordinances. The legislature has set forth an elaborate and extensive framework that regulates how a municipality-in the metropolitan area adopts land use planning ordinances.

The district court has identified the precise issue in controversy for it is the process by which land use ordinances are approved or disapproved that the legislature has addressed in the MPA and MLPA. And it is the process for the final adoption and approval of land use ordinances that the appellants challenge when they contend that the voters have the ultimate right to control the approval and final adoption of such ordinances.

The grant to a municipality of the power to govern itself through a home rule charter and to include in the charter the right of referendum does not preclude the legislature from preempting charter authority on matters of state concern. Town of Lowell, 252 Minn. 526, 91 N.W.2d 81, 83-84; Lilly v. City of Minneapolis, 527 N.W.2d 107, 111 (Minn.App.1995), review denied (Minn. Mar. 29, 1995).

The doctrine of preemption is premised on the right of the state to so extensively and intensively occupy a particular field or subject with state laws that there is no reason for municipal regulation. Mangold Midwest Co. v. Vill. of Richfield, 274 Minn. 347, 356, 143 N.W.2d 813, 819 (1966). If preemption has occurred, a local law purporting to govern, regulate, or control an aspect of the preempted field will be void, even if the local law is not in conflict with the state law. Id. The question of whether state law has preempted a field depends on the facts and circumstances of each case. Id.

In determining whether or not preemption has occurred, Minnesota courts consider four factors: (1) the subject matter regulated; (2) whether the subject matter is so fully covered by state law that it has become solely a matter of state concern; (3) whether any partial legislation on the subject matter evinces an intent to treat the subject matter as being solely a state concern; and (4) whether the nature of the subject matter is such that local regulation will have an adverse effect on the general state population. Id. at 358, 143 N.W.2d at 820.

The subject matter at issue in this appeal is the process by which municipalities adopt and finally approve ordinances pertaining to land use planning and zoning. We hold that the process for adopting and approving land use planning and zoning ordinances is so fully covered by state law that it has become solely a matter of state concern. The legislature has declared its intent to provide Minnesota municipalities with a “single body of law” that contains both the “necessary powers” and a “uniform procedure” for municipal planning. MinmStat. § 462.351. As the district court held, that single body of law, reflected in the MPA and MLPA, sets out a detailed and elaborate structure of procedural authority and processes for comprehensive land use planning and for ensuring reasonable compatibility with land use plans of other municipalities.

Recognizing that there is a need to prevent municipal plans from having an adverse impact on other jurisdictions, Minn. Stat. § 462.3535, subd. 2; that urbanization and land development transcend local boundaries, Minn.Stat. § 473.851; that compatibility and conformity among land use plans are important values, id.; and that controls are necessary to ensure planned, orderly, staged land development, id., the legislature has enacted for municipalities throughout the state and for metropolitan-area municipalities interrelated statutes that are aimed at obviating piecemeal, fragmentary municipal land use and development, and that instead provide procedural mechanisms to foster comprehensive and reasonably compatible municipal development.

Local regulation by referendum of the process for land use planning and zoning is sufficiently antithetical to the avowed purposes of creating that single body of law and uniform procedure that it has substantial potential for adverse effect on the population. Whereas the MPA and MLPA provide for a comprehensive, orderly, and uniform process, referendum by its very nature is a narrow, piecemeal device that encourages sporadic and fragmented land development and use.

Unlike the process provided in the MPA and MLPA, referendum would necessarily proceed without an overriding concept of current and future development and land use needs of the community and of neighboring communities and without the benefit of the expertise of land use professionals.

Thus, by its statements of policies and purposes and its enactment of comprehensive, uniform procedural laws for land use planning, the legislature has evinced its intent to occupy the field of the process by which municipal land use and development laws are finally approved or disapproved. And because local regulation by referendum would encroach into that occupied field and undermine the comprehensive and uniform nature of the process, we hold that the district court did not err in determining that referendum is preempted by the MPA and the MLPA.

Although we have considered all of appellants’ arguments, in light of our holding we will briefly comment on only some of them.

Appellants refer to Denney v. City of Duluth, 295 Minn. 22, 202 N.W.2d 892 (1972), as “the central Minnesota case on point.” Denney considered the single issue of whether Duluth’s amendment of its comprehensive zoning ordinance was a legislative act or an administrative act. Id. at 893. If the former, Duluth’s home rule charter provided for referendum. The supreme court held that in amending its zoning ordinance the city exercised its legislative power and that its legislative act was subject to the referendum provision of the charter. Id. at 896. But the court specifically declined to decide whether or not the MPA preempted the field of zoning regulation because that issue had not been litigated in the district court. Id. at 894 n. 6.

Appellants appear to conclude from Denney that referendum is available here. There is no contention that the City of Richfield’s amendments were anything but legislative. And it is clear that the charter reserves the power of referendum. Given those facts, we still face the question of whether referendum is preempted by state law. Denney left that issue entirely undecided and thus is not persuasive authority for the proposition that referendum is valid in this case.

Appellants also contend that by failing to expressly revoke the referendum with regard to city planning and zoning, the legislature did not intend to preempt it. However, Minn.Stat. § 462.01 (1961) (repealed 1965), the predecessor to the MPA, contained an independent referendum provision that the legislature repealed when it enacted the MPA. See Minn.Stat. § 645.39 (2000) (stating that when a law purports to revise all laws on a particular subject, and is intended to substitute for such former law, such law shall be construed to repeal all former laws upon the same subject). Even though the legislature did not expressly revoke the referendum, by substituting the MPA for section 462.01 the legislature made clear its intent to do so.

Citing the phrase “unless otherwise provided by charter,” and other similar language used in various subdivisions of the MPA, appellants argue that the legislature intended to allow city charters and ordinances to specify the means for amending comprehensive land use plans and thus the legislature did not intend to occupy the field.

One of the provisions relates only to the number of governing body members necessary to vote for the adoption or amendment of a land use plan. Minn.Stat. § 462.355, subd. 3. The remaining provisions deal with the creation or authority of a planning agency or a board of appeals. There is nothing in these provisions that implies that the legislature intended to allow a charter or ordinance to control the process by which final approval of a plan or zoning is obtained.

In occupying the field of the process for final approval or disapproval of land use and zoning ordinances and amendments, the legislature has not taken entirely from municipalities the right to make administrative decisions or even substantive determinations as to land use and zoning. Rather, the preemption concerns only the process reflected in the single body of uniform procedures in the MPA and MLPA. The “unless otherwise” language cited by appellants pertains to matters not integral to the preempted process and is not contrary to the notion of preemption as applied to process.

The district court did not err in granting partial summary judgment to respondent on the ground that state law preempts referendum as to the process for approving or disapproving municipal land use and development laws. Because this holding is dispositive, we need not reach the issue of conflict.

DECISION

The district court properly determined that the Minnesota state legislature preempted referendum provisions in cities’ home rule charters when it enacted the Municipal Planning Act and the Metropolitan Land Planning Act.

Affirmed.


author: LARSON, Justice.

text:
    GARLING CONSTRUCTION, INC., Appellant, v. CITY OF SHELLSBURG, Iowa and Richard Grimm, as Mayor of the City of Shellsburg, Iowa; Carla Draker, as City Councilperson of the City of Shellsburg, Iowa; Carla Charlier, as City Councilperson of the City of Shellsburg, Iowa; Steven Ternus, as City Councilperson of the City of Shellsburg, Iowa; Daniel Roehr, as City Councilperson of the City of Shellsburg, Iowa; and Timothy Bird, as City Councilperson of the City of Shellsburg, Iowa, Appellees.
    No. 00-0371.
    Supreme Court of Iowa.
    Jan. 24, 2002.
    Rehearing Denied April 8, 2002.
    Roger W. Stone of Simmons, Perrine, Albright & Ellwood, P.L.C., Cedar Rapids, for appellant.
    Thad J. Collins and Terry J. Abernathy of Pickens, Barnes & Abernathy, Cedar Rapids, for appellees.
    Thomas M. Cunningham, John A. Tem-pler, and John R. Perkins of Pingel & Templer, P.C., West Des Moines, for ami-cus curiae Master Builders of Iowa.
   LARSON, Justice.

When the Shellsburg City Council voted to award a contract for a new municipal building to a locally owned business, DeKlotz Construction, Inc., rather than to the lowest bidder, Garling Construction, Inc., Garling filed this suit against the city. The district court denied the plaintiffs petition for certiorari and claim for damages, and we affirm.

I. Facts and Prior Proceedings.

Garling Construction, Inc., a general contractor with more than twenty years experience, submitted a bid for the city project of $308,583. DeKlotz Construction, Inc., a local contractor, submitted the next lowest bid of $317,980.29. DeKlotz had never previously bid a public improvement or project. Dennis DeKlotz, owner of DeKlotz Construction, Inc., resides in Shellsburg. The city council made no official determination that Garling was not a responsible bidder and passed no resolution to that effect, although one of the council members contacted references provided by Garling and received negative comments about the company. The city council passed a resolution that did not refer to the references but merely said, “relative to the best interest of the City” the city would accept DeKlotz’s bid. Later, various members of the city council confirmed that the council gave preference to DeKlotz’s bid because DeKlotz resided within the city.

Within two days of the city’s notice of award of contract, Garling filed a petition for writ of certiorari. The petition sought a determination in Count I that the actions of the city violated the Iowa competitive bidding statute, Iowa Code §§ 384.99, .100 (1999). Count II alleged that the actions of the city were arbitrary, an abuse of discretion, in bad faith, or fraudulent. Count II demanded damages. The district court dismissed the petition for writ of certiorari and held that Iowa Code section 23A.3 mandated the city to give special consideration to local businesses and that the city could prefer a contractor residing within the city to one living outside the city. Garling appealed.

II. Standing to Challenge the City’s Decision.

The city argues that Garling lacks standing to challenge the contract award. The district court rejected this argument in a preliminary hearing, but the city renews it on appeal. Error was preserved because “ ‘a successful party is not required to cross-appeal to preserve error on a ground urged but rejected by the district court.’ ” Advance Elevator Co. v. Four State Supply Co., 572 N.W.2d 186, 189 (Iowa Ct.App.1997) (quoting Johnston Equip. Corp. v. Indus. Indem., 489 N.W.2d 13, 16 (Iowa 1992)). “This is because a party need not, in fact cannot, appeal from a favorable ruling.” Johnston Equip., 489 N.W.2d at 16.

We have said in an analogous case, “[t]he general rule governing a challenge to bidding procedures is that an unsuccessful bidder lacks standing to bring a suit challenging their legality.” Elview Constr. Co. v. North Scott Cmty. Sch. Dist., 373 N.W.2d 138, 141 (Iowa 1985). We reiterated the Elview rule in Medco Behavioral Care Corp. v. Value Behavioral Health, Inc., 553 N.W.2d 556, 561 (Iowa 1996), although Medco was decided under a different statute. The reasoning for El-view’s, standing decision is that the truly damaged party is the taxpayer, not one who has lost a bid through some claimed error. We stated that the “[competitive-bidding] statutes were enacted for the benefit of the taxpayers, not the bidders.” Elview, 373 N.W.2d at 141. We further stated that competitive-bidding statutes were “‘not intended to be a bestowal of litigable rights upon those desirous of selling to the government...” Id. (quoting Perkins v. Lukens Steel Co., 310 U.S. 113, 127, 60 S.Ct. 869, 876, 84 L.Ed. 1108, 1115 (1940)).

Garling contends that Elview is distinguishable and applies only to an action in equity by an unsuccessful bidder. It claims it does not apply to a situation in which the bidder has brought an action in the form of certiorari. Garling relies on Hoefer v. Sioux City Community School District, 375 N.W.2d 222 (Iowa 1985). That case, however, did not discuss standing; it decided only that the plaintiff, who alleged irregularities in the award of an insurance contract, minimally pled the illegality of the board’s action so as to qualify for certiorari relief. Hoefer, 375 N.W.2d at 226. Hoefer obviously was not viewed as affecting the validity of Elview, which had been decided only two months before, because Hoefer-did not even mention El-view.

Whether the plaintiff uses the vehicle of certiorari or an equitable action, the plaintiff must have standing, and on that question, Elview (expressing the view of virtually every case on the issue) controls. While the plaintiff also relies on Medco as authority for his argument, Medco is distinguishable. In that case, standing to challenge a bid decision was established via the Iowa Administrative Procedure Act. Medco, 553 N.W.2d at 562.

Even if an award of contract is invalid (an issue we do not reach), standing to raise a challenge is not accorded to an unsuccessful bidder. It is said:

A contract let or entered into in violation of [a statutory bidding] requirement is invalid and the award thereof will be set aside; but a violation of the requirement does not give rise to a cause of action in favor of the lowest responsible bidder, to whom the contract should have been, but was not, awarded, against the municipality for the profits which he would have made if the requirement had not been violated.

64 C.J.S. Municipal Corporations § 1041, at 229-30 (1999) (footnotes omitted).

In addition to the fact that bidding statutes are enacted for the benefit of the public and not bidders, Elview, 373 N.W.2d at 141, another reason an unsuccessful bidder has no standing to seek monetary damages is that this

would be contrary to the public interest the bidding laws were designed to protect, since it would twice penalize taxpayers by compelling them to pay not only the excess over what they would have paid if the contract were properly awarded, but also the amount of profit lost by the contractor whose bid was wrongfully rejected.

James L. Isham, Annotation, Public Contracts: Low Bidder’s Monetary Relief Against State or Local Agency for Nonaward of Contract, 65 A.L.R.4th 93, 111 (1988) [hereinafter Annotation].

A bidder for public work cannot base a right of action for damages against the public body, upon a statutory requirement that contracts for the performance of public work shall be let to the lowest bidder and cannot recover lost profits in case the contract is, contrary to the statute, awarded to a higher bidder. Such a statutory provision, enacted as a protection to the public, cannot be used to make disobedience of its provisions by public officers a double source of punishment to the public body; if the low bidder is permitted to maintain such an action then this obedience of the statute would make the public body pay the difference between the lowest bid and the bid for which the contract was made and also the profit that the lowest responsible bidder would have made if the statute had not been violated.

64 Am.Jur.2d Public Works & Contracts § 85, at 720 (2001) (footnotes omitted).

Denial of standing to an unsuccessful bidder does not mean violation of a bidding statute will necessarily go unchallenged. An injunction action, mandamus, or declaratory judgment might still be available. See Annotation, 65 A.L.R.4th at 99.

Although a public contractor whose low bid is wrongfully rejected by a government entity is often held to have standing to prosecute an action for injunction, mandamus, or declaratory-judgment, it is less frequently held that there is a remedy for damages in such cases, the basic reasoning being that while equitable, extraordinary, or declarative relief may serve the public interest by preventing the award and execution of a contract for an excessive amount, permitting damages in such cases serves the bidder’s interest alone, and is contrary to the public interest the competitive bidding laws were designed to protect, further burdening a treasury already injured by paying too high a price for the goods or services.

Id. (footnotes omitted); see also Sutter Bros. Constr. Co. v. City of Leavenworth, 238 Kan. 85, 708 P.2d 190, 196 (1985) (“An unsuccessful bidder on a public works project may not predicate a cause of action for damages against a public body solely upon an alleged violation of [a bidding statute]. An unsuccessful bidder’s remedy is to seek injunctive relief, preventing the award of the contract to one not legally entitled thereto.”).

A bidder on a public contract does not have an action for damages against the public agency for alleged irregularities in the bid process. Rather, such a bidder is limited to seeking an injunction before the contract is awarded to another contractor. Thus, a disappointed bidder on a city contract has standing to sue to enjoin the execution of a contract.

64 Am.Jur.2d Public Works & Contracts § 85, at 723.

Based on Elview and the authorities discussed, we conclude the plaintiff lacks standing to seek damages for the council’s action, and we therefore affirm the judgment of the district court.

AFFIRMED.


text:
    Dianne M. SCHLITZER, Appellee, v. UNIVERSITY OF IOWA HOSPITALS & CLINICS and State of Iowa, Appellants.
    No. 99-0735.
    Supreme Court of Iowa.
    Jan. 24, 2002.
    Rehearing Denied April 8, 2002.

      Thomas J. Miller, Attorney General, and Joanne Moeller, Assistant Attorney General, for appellants.
    Martin A. Diaz of the Diaz Law Firm, Iowa City, for appellee.
   LARSON, Justice.

This is an appeal by the plaintiffs former employer in a suit under the Iowa and federal disability discrimination statutes. Because we conclude the plaintiff failed to establish a prima facie case of discrimination, we reverse and remand for dismissal of the suit.

I. Facts and Prior Proceedings.

The plaintiff, Dianne Schlitzer, was employed in the bariatric and vascular surgery unit of the University of Iowa Hospitals and Chnics (UHC) in Iowa City. Many of the patients in her unit were bedridden, wheelchair-bound, amputees, or other severely disabled persons. Schlitzer stated in her brief:

This unit was made up of the morbidly obese and those patients who were vas-cularly compromised, often leading to amputation. As a result, the unit where [I] worked was very physically demanding.

Schlitzer was able to perform her duties without physical difficulty until December 12, 1991, when she was involved in a single-car accident in which she injured her back, neck, and left shoulder. She returned to work but continued to have problems with her injuries. Schlitzer was still receiving medical care related to her ear accident when, on May 25, 1994, she reinjured her neck, back, and left shoulder while assisting a patient from a commode to a bed. She was seen in the emergency room, and her doctors advised her to stay off work for an indeterminate period.

Jan Gorman, an “accommodations specialist” for UHC, began providing accommodation services to Schlitzer on June 9, 1994. Gorman met with Schlitzer, obtained information about her condition, and discussed the need to identify permanent restrictions to determine whether Schlitzer would be able to return to work.

At the end of July 1994, Schlitzer was released to return to work with a restriction of twenty pounds lifting and limited left-arm use. However, these medical restrictions prevented her from returning to her previous position. One of her doctors indicated that a lifting limit, imposed because of her back condition, would likely become permanent. In September 1994, after a functional capacity assessment was performed, she was told to limit lifting to 7.5 pounds, no more than four times per hour, and to twenty pounds on a nonrepeti-tive basis.

Schlitzer had surgery on her shoulder on November 9, 1994. On March 31, 1995, she was again released to work, but with similar medical restrictions on the use of her left arm. In April 1995 the UHC assigned her a priority status for any vacancy that might become available for which she was qualified. Jan Gorman reviewed with Schlitzer the services that her office could provide. Schlitzer was to check the university’s “Job Line” for vacancies, get the names of any job openings in which she was interested, and provide that information to Gorman. Schlitzer was able to access the job line either by calling a toll free number or by obtaining a hard copy at one of two University of Iowa offices. Vacancies were listed for a week or two each, and the job line was updated on a daily basis. In addition to the job line, Schlitzer had access to the Nursing News, an internal posting of available positions in the Department of Nursing.

Schlitzer only investigated three vacancies using the resources offered to her by the university, and she only pursued one of those vacancies to the point of interview. In July 1995 she applied for a job in the college of medicine, which was held open for her for several months. However, she withdrew from consideration from that position, ostensibly because of the on-call requirements. According to Gorman, Schlitzer “would have had that job.”

Gorman heard from Schlitzer again on October 3, 1995, when Schlitzer contacted her about a vacancy in the hospital’s in vitro fertilization unit (IVF). Schlitzer filled out a request for this vacancy, and the position was held open for her for over two weeks. As before, however, she withdrew from consideration for this position— this time because the position was only half-time and because she preferred to apply for a different position.

The third job for which Schlitzer expressed an interest to Gorman was the position she had referred to when she withdrew from consideration for the IVF position. This position was in a higher pay grade, and university policy dictated that Gorman was only able to request an interview for Schlitzer. Gorman made the request, and Schlitzer was interviewed for the position in November 1995 but was not hired. Gorman did not hear from Schlit-zer for over three months. In December 1995 Schlitzer filed a grievance and this civil rights complaint based on what she perceived to be UHC’s failure to hire her back to a vacant position.

Despite her medical condition, Schlitzer wanted the UHC to return her to work as a nurse. On March 19, 1996, she wrote a letter to Judith Ryan, the director of nursing, in which she listed those portions of a nursing position she believed she was able to perform. Schlitzer claimed to be able to perform many functions — complete bed baths, whirlpools, initiation and follow-through with emergency functions — that the department of nursing thought were neither possible nor safe, given Schlitzer’s lifting restrictions. Schlitzer’s letter noted that she would need assistance with lifting over twenty-five pounds and turning large patients and requested the following accommodations:

#1. A position that provides adequate staffing to assist me when turning or lifting heavy patients, or
#2. A position providing cares for ambulatory patients or infants, and
#3. I also request IV poles that allow for height adjustment.

Less than three months after writing this letter, Schlitzer was seen in the spine diagnostic center at the hospital. She told medical personnel there that “driving where she has to hold onto the steering-wheel is quite difficult for her and that she is now driving short distances before taking periods of rest.” Two days later, on June 7, 1996, she was seen by Dr. Hartley in the workers’ health clinic where she told him that her significant back and shoulder pain “limits many of her daily activities.” On July 17, 1996, Schlitzer was given her final set of medical restrictions. She was told to

observe a lifting restriction of 5 lb. above waist level, and 25 lb. to waist level (nonrepetitively, i.e., four times or less per hour). She should avoid lifting with her arm outstretched. She should avoid repetitive bending and stooping.

She was also told she should not engage in sitting, standing, or walking for more than two hours without a break. No physician has imposed any new restrictions or made any changes since that time.

Although Schlitzer did not work for the university hospital after her second injury, she remained employed in the nursing field — first for a hospice, providing limited nursing care, and then with a community college in a nurse-teaching position. She was later employed in a nursing home, where she was still employed at the time of trial.

Trial was held in January 1999. The jury returned a verdict in favor of Schlit-zer, and the district court entered judgment in accordance with the verdict. Defendants then filed this appeal.

II. The Applicable Law.

Schlitzer filed her suit under both the Federal Americans With Disabilities Act (ADA), 42 U.S.C. § 12101-213, and Iowa’s civil rights statute, Iowa Code ch. 216 (1997). The common goals of the Federal ADA and our civil rights act have encouraged us to look to the federal statutory and regulatory standards in applying our statute. Vincent v. Four M Paper Corp., 589 N.W.2d 55, 59-60 (Iowa 1999).

After the trial of this case to a jury and the court’s judgment, the defendant requested, under Iowa Rule of Civil Procedure 179(b), that the court state whether the judgment was entered under both the federal and state statutes. (This was a relevant inquiry because the Federal Act entitles a claimant to a jury trial, while the Iowa Act does not.) The defendant inquired whether a different conclusion would follow in a case tried to the court, without a jury, as the Iowa statute requires. The court ruled that,

[t]o the extent the court has jurisdiction to answer the questions raised, the court, acting on the State claims, reaches the same conclusions and makes the same findings as those determined [by the jury] on the Federal claims. . That is, the results of the Plaintiffs causes of action are the same in both the Federal and State claims.

After this ruling on the rule 179(b) motion, the United States Supreme Court held the federal act does not provide a cause of action for discrimination suits against states, reasoning that

Congress is the final authority as to desirable public policy, but in order to authorize private individuals to recover money damages against States, there must be a pattern of discrimination by the States which violates the Fourteenth Amendment, and the remedy imposed by Congress must be congruent and proportional to the targeted violation. Those requirements are not met here, and to uphold the Act’s application to the States would allow Congress to rewrite the Fourteenth Amendment....

Bd. of Trs. of the Univ. of Alabama v. Garrett, 531 U.S. 356, 374, 121 S.Ct. 955, 967-68, 148 L.Ed.2d 866, 883-84 (2001). Accordingly, we apply only the Iowa Act here.

Under the Iowa civil rights statute, Iowa Code § 216.6(1),

[i]t shall be an unfair or discriminatory practice for any:
a. Person to refuse to hire, accept, register, classify, or refer for employment, to discharge any employee, or to otherwise discriminate in employment against any applicant for employment or any employee because of the age, race, creed, color, sex, national origin, religion, or disability of such applicant or employee, unless based upon the nature of the occupation. If a person with a disability is qualified to perform a particular occupation, by reason of training or experience, the nature of that occupation shall not be the basis for exception to the unfair or discriminating practices prohibited by this subsection.

(Emphasis added.)

Our review of a disability discrimination claim is at law, Boelman v. Manson State Bank, 522 N.W.2d 73, 76 (Iowa 1994), and we are bound by the court’s findings of fact if supported by substantial evidence. We view the facts in the light most favorable to upholding the judgment. Id.

Boelman developed a test to be applied in cases involving an employer’s acknowledged reliance on a disability-related ground for an employment decision. That is the case we have here. A claimant in these circumstances must establish a prima facie case that (1) she has a disability, (2) she was qualified for the position sought, and (3) the employment decision was based on her disability. See id. at 79.

In the present case, it is undisputed that Schlitzer is “disabled” under the statute, and this disability was the basis for the defendant’s hiring decision. Thus, the first and third elements of the test are satisfied. The critical issue here is whether she made a prima facie showing she was “qualified” for the position she sought. To establish this element, Schlit-zer must show that she was qualified to perform the job by showing she “could perform the essential functions of [her] job with or without accommodation.” Id. at 81-82. If an employee’s ability to do her job depends on reasonable accommodation, the employee must make a facial showing that reasonable accommodation was possible. If this factual showing is made, the burden shifts to the employer to show that the suggested accommodation was unreasonable or would constitute an undue hardship. Id. at 82. However, as a general rule, any expense to the employer in accommodating a claimant that is more than de minimus is not required. Courtney v. Am. Nat'l Can Co., 537 N.W.2d 681, 687 (Iowa 1995). In Courtney the claimant’s vision problems prevented him from effectively operating a forklift. We held that forklift operation was such an integral part of his job that fashioning a job without forklift requirements would alter the essential nature of the job and would therefore not be an accommodation required by the civil rights statute. Id.

In this case, it is undisputed that Schlitzer could not perform her previous work. However, she sought accommodation through reassignment to another job with the university hospital. The hospital argues that Schlitzer failed to make a pri-ma facie case for accommodation because she did not identify a vacant position for which she was qualified. An employer is not required to create a vacancy or otherwise create a job for a claimant. See Treanor v. MCI Telecoms. Corp., 200 F.3d 570, 575 (8th Cir.2000). The relevant time for determining if a vacancy exists is said to be the time of discharge or other adverse employment decision. McCreary v. Libbey-Owens-Ford Co., 132 F.3d 1159, 1165 (7th Cir.1997).

The relevant time for determining whether a vacancy existed in this case is complicated by the fact Schlitzer was never discharged but was allowed to stay on medical leave for over four years. The defendant suggests the relevant time here is from March 1995, when she was released to work after her surgery, and December 1995, when she filed a civil rights complaint with the civil rights commission. We believe this is an appropriate time frame for determining whether a vacancy existed, and the plaintiff has not proposed a more appropriate alternative. That is the time we will use in determining whether a vacancy existed.

III. Application of Law to the Facts.

As noted the key issue is whether Schlitzer is “qualified” for a position that she has identified. She has the burden of making a prima facie case that there was a job available and that she was qualified to fill it. See McCreary, 132 F.3d at 1165. Schlitzer identified the type of position she thought she could handle, but she only identified three vacancies using the resources offered to her by the university, and only pursued one of those vacancies to the point of interview. UHC also contends she was not qualified to handle the type of position she identified.

In this case the plaintiff failed to identify a specific available job she pursued, for which she was qualified, and which was denied to her because of her disability. As the court noted in Treanor:

To conclude that a person is a qualified individual within the meaning of the ADA, the court must consider whether the person has “the requisite skill, experience, education and other job-related requirements of the employment position that such individual holds or desires. ”

Treanor, 200 F.3d at 575 (quoting Weber v. Strippit, Inc., 186 F.3d 907, 916 (8th Cir.1999) (emphasis added by court))).

In Treanor a disability claimant complained that her previous employer failed to assist her in finding part-time employment as an accommodation. The court concluded MCI had no duty to “find or make” employment for her, concluding “the ADA does not require an employer to create a new part-time position where none previously existed.” Id. Furthermore, “Treanor made no assertion that any particular suitable job was available.” Id. The court affirmed a summary judgment for the employer, concluding that “a court cannot evaluate a plaintiffs qualifications in a vacuum but must consider the specific essential functions of a particular job.” Id. at 576 (emphasis added). While Schlitzer identified types of positions she felt she could handle, she only followed through the interview process with one particular job, which was a promotion.

Schlitzer insisted at trial that she was physically capable of working as a nurse in a clinic setting providing care for ambulatory patients or infants. Although she had never worked at any of the UHC clinics, she believed clinic work would be less physically demanding than working in an inpatient unit, which she had done before. However, UHC presented testimony at trial that, although some clinic patients are truly ambulatory, others arrive on a cart or in a wheelchair. Clinic patients may be arthritic, confused, dizzy, or light-headed, or they may have had a stroke or an amputation. They must often be helped or bodily lifted in or out of their chairs, on and off a cart, on and off examination tables, up and down steps, in and out of the bathroom, and on and off a commode.

There was testimony that clinic patients may faint or fall at any time. They undergo anesthesia, are on medications, and are subject to uncomfortable or painful procedures. They have heart attacks, stop breathing, and are often accompanied by heavy and complicated monitors or other apparatuses. They may need dressing changes, casts, x-rays, or catheterizations, all of which require that their bodies or limbs be picked up, held, or manipulated. Clinic patients undergo chemotherapy, surgery, spinal taps, and bone marrow aspirant procedures. Even a mere blood draw may cause a patient to suddenly lose consciousness. According to the testimony, nurses must be ready to provide immediate physical support for these clinic patients at any time.

Nurses sometimes work alone in the clinics, especially at the end of a day. They are often on their feet for several hours at a time without the opportunity to even sit. Clinic nurses must be able to lift and move equipment and TVs, adjust monitors, perform treatments, and do patient assessments requiring the use of both arms and hands. They must have the ability to lift, hold, pull, or push patients of any weight. The nurses uniformly testified that clinic jobs require significant physical exertion. It is clear that if Schlit-zer were to be given one of these jobs it would be virtually certain that some of her tasks would have to be performed by others.

Any accommodation that places the burden of a job on other employees to perform the function assigned to the claimant substantially impinges on the rights of other employees and is therefore unreasonable. See Courtney, 537 N.W.2d at 687; Frank v. Am. Freight Sys., Inc., 398 N.W.2d 797, 803 (Iowa 1987). Disability discrimination law does not require an employer to change the “essential elements” of the job in order to accommodate a claimant. Courtney, 537 N.W.2d at 687.

In Estate of Morgan v. North Star Steel Co., the claimant’s poor vision prevented him from high climbing as required of a millwright. 530 N.W.2d 455, 457 (Iowa 1995). Morgan’s proposed accommodation included installation of an elevator or the assignment of some of Morgan’s responsibilities to others. We agreed with the district court that the elevator suggestion was not feasible because of space and safety concerns. Moreover, we found Morgan had failed to establish a prima facie case as to his ability to do the job because “‘accommodation must be made by an employer only if it does not impinge on the rights of other employees or incur more than a de minimus cost to the employer.’ ” Id. at 458 (quoting Smith v. ADM Feed Corp., 456 N.W.2d 378, 386 (Iowa 1990)). We have said that,

in most discrimination cases based on disability, individualized consideration must be given to the job and to the applicant’s particular circumstances.... The nature and extent of a disability, the needs of a particular job, and the impact of disability on a person’s ability to perform that job, are too diverse to permit generalized application.... This is implicit in our Foods, Inc. case, where we looked to the individualized circumstances of the complainant and the job. See Foods, Inc. [v. Iowa Civil Rights Comm’n, 318 N.W.2d 162, 166-69 (Iowa 1982)]. This would not be true in every disability case, of course, because the nature of the disability and the job might in some cases be so incompatible that generalized rules could be applied. A rule prohibiting employment of a blind person as a driver would be an obvious example.

Frank, 398 N.W.2d at 801. We believe that the plaintiffs disability substantially limits her ability to lift and makes a clinic nurse’s job incompatible with her physical condition.

In this case the plaintiff failed to identify a specific available job for which she was qualified. In addition to Schlit-zer’s failure to identify a specific job that was available, she failed to show she was qualified for the type of position she sought. She therefore failed to establish a prima facie case under the civil rights statute. See Boelman, 522 N.W.2d at 81-82. We reverse and remand for dismissal of the plaintiffs petition.

REVERSED AND REMANDED.


author: CADY, Justice.

text:
    Loretta MEIER, Appellee, v. Voltaire Senecaut, Defendant, and Voltaire SENECAUT III, Appellant.
    No. 00-0114.
    Supreme Court of Iowa.
    Feb. 27, 2002.

      Hayward L. Draper and W. Don Brittin, Jr., of Nyemaster, Goode, Voigts, West, Hansell & O’Brien, P.C., Des Moines, for appellant.
    Mark S. Pennington of Kutmus & Pennington, P.C., Des Moines, for appellee.
   CADY, Justice.

In this interlocutory appeal, we find appellant failed to preserve error on one of the issues raised on appeal but further find the district court erred in failing to dismiss the petition based on a claim of abusive delay in service of process which was properly preserved for our review. We reverse the decision of the district court and remand the case for entry of an order of dismissal.

I. Background Facts and Proceedings.

The proceedings in this case stem from an automobile accident between Loretta Meier and Voltaire Senecaut III (Senecaut III) on May 13, 1997. On January 20, 1999, Meier filed a petition at law seeking damages for injuries she allegedly suffered from the accident. The petition named ‘Voltaire Senecaut” as the defendant. It did not include the designation “III.” Contemporaneously with the filing of the petition, the clerk of court issued an original notice naming ‘Voltaire Senecaut” as the defendant. The notice listed Senecaut’s address as 1449 E. 23rd Street, Des Moines. This was the address of Senecaut Ill’s grandfather, whose name is Voltaire Senecaut (Senecaut). Senecaut III did not live with his grandfather at any time during these proceedings.

In preparing the original notice, counsel for Meier did not use the address listed for Senecaut III in the police report completed following the accident. The police report listed Senecaut Ill’s address as 1904 E. 14th Street, Des Moines, but did not include the designation “HI.” Instead, Meier’s counsel obtained the address used on the original notice from the November 1998/1999 U.S. West telephone directory. The telephone book covered the city of Des Moines and the surrounding area. There was only one listing for ‘Voltaire Senecaut,” and it did not include “HI.”

Meier retained a private investigator, Charles Glenn, to serve the notice and petition. Glenn unsuccessfully attempted service at the E. 23rd Street address on thirteen different occasions between January 21,1999 and March 27,1999.

On April 19, Glenn discovered Senecaut and his wife were vacationing in Monroe County, Florida. On May 4, counsel for Meier directed the Monroe County Sheriffs office in Florida to serve Senecaut in Florida. Senecaut informed the deputy sheriff who attempted service that the notice was intended for his grandson. He also provided the deputy sheriff with his grandson’s address in Iowa. The deputy did not serve Senecaut. In the return of service, the deputy included Senecaut Ill’s new address in Norwalk, Iowa. Although Senecaut III had moved from the E. 14th Street address listed in the police report, he was residing at the Norwalk address at the time the petition was filed. Senecaut III provided his Norwalk address to the United States Post Office in Des Moines when he moved to Norwalk.

Despite notice from the deputy sheriff in Florida concerning the mistake in the identity of Voltaire Senecaut, Meier’s counsel again instructed Glenn to serve the original notice and petition at Senecaut’s East 23rd Street address in Des Moines. After returning from her Florida vacation on May 18, Senecaut’s wife accepted service. However, she immediately called Meier’s counsel listed on the original notice to inform him of the mistake in the identity of the two Senecauts. She also provided counsel with her grandson’s current Norwalk address, which matched the address provided by the deputy two weeks earlier. Senecaut III lived in an apartment complex in Norwalk with his wife.

Glenn then attempted to serve process on Senecaut’s grandson at his apartment in Norwalk. Between May 18 and June 30, Glenn tried to serve Senecaut III approximately twelve times at the Norwalk location. Glenn subsequently made five more unsuccessful attempts to serve Sene-caut III at his residence between August 18 and August 25, before finally serving Senecaut III on August 25. The notice served on Senecaut III was an altered photocopy of the original notice issued by the clerk of court on January 20. The E. 23rd Street address had been covered in white-out and replaced with 1121 Main Street # 8, Norwalk. In addition, the notice attached a copy of the January 20 petition.

While Glenn was attempting to serve process on Senecaut III, Senecaut began litigating the action. On June 7, Senecaut filed an answer to the petition. He denied all of Meier’s allegations. Furthermore, he responded to Meier’s interrogatories and moved for summary judgment. In each of these documents, he consistently contended he was not the owner or the driver of the vehicle involved in the accident.

On September 23, the day prior to the hearing on the motion for summary judgment, Meier’s counsel filed a pleading entitled “dismissal.” The body of the pleading simply stated Meier dismissed “the above-captioned matter.” The next day counsel filed a motion entitled “amended motion to dismiss.” In this “motion,” Meier asserted she only dismissed the action against the elder Senecaut and clarified that the action would continue to proceed against Sene-caut III. Minutes later, counsel filed a second “amended motion to dismiss,” explaining the September 23 dismissal was due to a “scrivener’s error.” Contemporaneously with the second motion, the district court entered an ex parte order reinstating the action against Senecaut III. It found the pleading filed on September 23 that dismissed the case was a mistake attributable to a scrivener’s error.

Senecaut III filed a motion to dismiss and to quash service. He contended the district court had no jurisdiction to reinstate the petition after Meier filed the unconditional dismissal of the petition on September 23. He also argued the length of time between the filing of the petition and his service of process constituted abusive delay. Finally, he claimed that service of the altered original notice failed to conform to rule 49(a) and (c).

The district court denied the motion in a lengthy written ruling, but did not specifically address the jurisdictional issue based on the voluntary dismissal of the petition. It found good cause for the delay in service of process and further found that the alteration of the original notice did not deprive the court of its jurisdiction or require that the service be quashed.

We granted Senecaut Ill’s application for interlocutory appeal. He raises the same issues on appeal as he did before the district court. Meier claims Senecaut III failed to preserve error on the reinstatement issue by failing to request a specific ruling.

II. Standard of Review.

We review a district court’s ruling on a motion to dismiss for errors at law. Iowa R.App. P. 4; Ritz v. Wapello County Bd. of Supervisors, 595 N.W.2d 786, 789 (Iowa 1999); McCormick v. Meyer, 582 N.W.2d 141, 144 (Iowa 1998). Although we are not bound by the district court’s legal conclusions, we are bound by the court’s findings of fact if they are supported by substantial evidence. McCormick, 582 N.W.2d at 144.

III. Preservation of Error.

We must first consider whether Sene-caut III preserved error on his claim that the district court did not have jurisdiction to reinstate the action following the voluntary dismissal of the petition. He asserts error was preserved when he raised the issue in the motion to dismiss and the district court overruled the motion.

It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal. Metz v. Amoco Oil Co., 581 N.W.2d 597, 600 (Iowa 1998) (“issues must be presented to and passed upon by the district court”); Peters v. Burlington N. R.R., 492 N.W.2d 399, 401 (Iowa 1992) (“issues must be raised and decided by the [district] court”). The reason for this principle relates to the essential symmetry required of our legal system. It is not a sensible exercise of appellate review to analyze facts of an issue “without the benefit of a full record or lower court determination[ ].” Yee v. City of Escondido, 503 U.S. 519, 538, 112 S.Ct. 1522, 1534, 118 L.Ed.2d 153, 172 (1992) (quoting Lytle v. Household Mfg., Inc., 494 U.S. 545, 552 n. 3, 110 S.Ct. 1331, 1336 n. 3, 108 L.Ed.2d 504, 515 n. 3 (1990)). When a district court fails to rule on an issue properly raised by a party, the party who raised the issue must file a motion requesting a ruling in order to preserve error for appeal. Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995); State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350 N.W.2d 202, 206 (Iowa 1984).

Senecaut claims he was not required to move for a specific ruling to preserve error on the issue of the jurisdiction of the district court to reinstate the petition for two reasons. First, he claims the rule that allows parties to file motions to enlarge a ruling does not apply to legal issues, such as jurisdiction. Second, he claims the district court necessarily decided the issue by overruling the motion to dismiss. We will address the two arguments in the order presented.

Iowa Rule of Civil Procedure 179(b) permits a party to file a motion to request the district court to amend or enlarge its findings and conclusions, and to enable the court to modify its judgment or enter a new judgment. Iowa R. Civ. P. 179(b). Thus, it is a procedural mechanism that permits parties to request reconsideration of a ruling, and authorizes the court to change its ruling. See Beck v. Fleener, 376 N.W.2d 594, 596 (Iowa 1985) (motion for reconsideration was a motion under rule 179(b)); Peoples Trust & Sav. Bank v. Baird, 346 N.W.2d 1, 2 (Iowa 1984) (motion for rehearing was in essence motion for enlargement or amended findings). However, a rule 179(b) motion is available only to address “ ‘a ruling made upon [the] trial of an issue of fact without a jury.’” Bellach v. IMT Ins. Co., 573 N.W.2d 903, 904 (Iowa 1998) (quoting Kunau v. Miller, 328 N.W.2d 529, 530 (Iowa 1983)). This does not mean a rule 179(b) motion is not available to challenge an issue of law, but the legal issue must have been addressed by the court in the context of an issue of fact tried by the court without a jury. See Bellach, 573 N.W.2d at 905 (a rule 179(b) motion did not toll time to appeal because the motion did not raise a challenge to an issue of fact or to a legal issue reached in the context of an issue of fact); Peoples Trust & Sav. Bank, 346 N.W.2d at 2 (rule 179(b) motion is available when it asks the court to reconsider an issue of law pertaining to a fact question presented at a hearing).

This limitation on the use of rule 179(b) is derived from the language of rule 179(a), which frames the parameters of the rule by directing the district court to enter written findings and conclusions when “trying an issue of fact without a jury.” Iowa R. Civ. P. 179(a); see Bellach, 573 N.W.2d at 904; City of Eldridge v. Caterpillar Tractor Co., 270 N.W.2d 637, 640 (Iowa 1978), overruled on other grounds by Nuzum v. State, 300 N.W.2d 131, 134 (Iowa 1981). Nevertheless, absent the application of a special rule, a rule 179(b) motion is not available to challenge a ruling that did not involve a factual issue but instead was confined to the determination of a legal question. See Explore Info. Servs. v. Iowa Ct. Info. System, 636 N.W.2d 50, 55-57 (Iowa 2001) (rule 179(b) not available to challenge ruling on adjudication of law points involving statutory interpretation); Bellach, 573 N.W.2d at 905 (rule 179(b) not available to challenge ruling on post-trial motions involving legal questions); Easter Lake Estates, Inc. v. Polk County, 444 N.W.2d 72, 73-74 (Iowa 1989) (rule 179(b) motion ineffective to challenge ruling on adjudication of law points). When a ruling is strictly limited to a question of law, a motion to reconsider amounts to nothing more than a rehash of the legal question. Explore Info. Servs., 636 N.W.2d at 57; Bellach, 573 N.W.2d at 905. The difference between the reconsideration of a ruling based on the application of facts to law and a ruling based solely on the law can be significant. A second hearing solely involving a legal issue is merely repetitive. Kunau, 328 N.W.2d at 530. It serves little purpose as a court procedure.

Nevertheless, this limitation on the use of a rule 179(b) motion does not similarly limit the preservation of error doctrine. Our preservation of error doctrine requires a party to make a request for a ruling, and rule 179(b) establishes a procedure to use under some circumstances to make the request. However, rale 179(b) only establishes a procedure, not a substantive principle of preservation of error. The inapplicability of the rale in some cases does not impact the applicability of the preservation of error doctrine to all cases.

We recognize that we have repeatedly said that a rule 179(b) motion is necessary to preserve error “when the district court fails to resolve an issue, claim, or other legal theory properly submitted for adjudication.” Explore Info. Servs., 636 N.W.2d at 57; accord, Arnold v. Lang, 259 N.W.2d 749, 753 (Iowa 1977) (“[I]t is now well settled a rule 179(b) motion is essential to preservation of error when a trial court fails to resolve an issue, claim, defense, or legal theory properly submitted for adjudication”). However, this was not said to convey the notion that a motion under rule 179(b) controls the preservation of error doctrine. Instead, it means that a motion under rule 179(b) is an essential post-trial procedure when used to preserve error based upon the failure of the district court to resolve an issue. Yet, the preservation of error doctrine does not require the request for a ruling to be made under rule 179(b). There is no procedural rule solely dedicated to the preservation of error doctrine, and a party may use any means to request the court to make a ruling on an issue. Furthermore, we treat a motion by its contents, not its caption. See Franke v. Junko, 366 N.W.2d 536, 538 (Iowa 1985) (motion for a new trial can serve as motion to enlarge for purposes of preservation of error if actual substance of motion is to enlarge). Thus, a rule 179(b) motion used to preserve error in a case involving only a legal issue could be an adequate means to preserve error. There is a distinction between the use of a motion under rule 179(b) to challenge a ruling made by the district court and to address the failure of the district court to make a ruling. Our cases that have defined those situations where a rule 179(b) motion is not available to a party relate to efforts by that party to challenge a decision made by the district court. See, e.g., Explore Info. Servs., 636 N.W.2d at 56-57; Bellach, 573 N.W.2d at 905; Easter Lake Estates, Inc., 444 N.W.2d at 74. Thus, even if a rule 179(b) motion is not available to a party to challenge a district court ruling, as Sene-caut III alleges in this case, that party must still request a ruling from the district court to preserve error for appeal on an issue presented but not decided.

In this case, Senecaut III did not file a rule 179(b) motion to request a ruling on the unresolved issue or request a ruling by other means. The court was not given an opportunity to address its failure to rule on the issue either by making a ruling or refusing to do so. The preservation of error doctrine was not satisfied.

Nevertheless, Senecaut III further claims the jurisdictional issue was necessarily decided by the district court when the court overruled the motion to dismiss. Thus, we turn to the question whether the issue was adequately raised and decided by the district court despite the failure to file a motion under rule 179(b).

We begin by recognizing our prior cases articulating the appellate principle that we assume the district court rejected each defense to a claim on its merits, even though the district court did not address each defense in its ruling. See Rushing v. State, 382 N.W.2d 141, 145 (Iowa 1986); Brunner v. United Fire & Cas. Co., 338 N.W.2d 151, 152 (Iowa 1983). At first blush, this principle would appear to assist Senecaut III in his preservation of error argument. Yet, this assumption that the district court rejected claims not specifically addressed is not a rule of error preservation, but a rule governing our scope of review when an issue is raised and decided by the district court and the record or ruling on appeal contains incomplete findings or conclusions. See Albert v. Davenport Osteopathic Hosp., 385 N.W.2d 237, 239 (Iowa 1986) (assumption guides our proper scope of review); F.S. Credit Corp. v. Shear Elevator, Inc., 377 N.W.2d 227, 232-33 (Iowa 1985) (our review is to determine if evidence supports presumed findings); Brunner, 338 N.W.2d at 152 (assumption applied only after assuming error was preserved). It is tied to our long-standing presumption that a district court found facts essential to sustain the judgment, and guides the manner we review the record on appeal. See Bankers Trust Co. v. Fidata Trust Co., 452 N.W.2d 411, 413 (Iowa 1990); Brichacek v. Hiskey, 401 N.W.2d 44, 46 (Iowa 1987); Keokuk County v. Howard, 42 Iowa 29, 31 (1875). Thus, this assumption is not utilized as a means to preserve error, but only to guide our review of an incomplete or sparse record when preservation of error is not at issue. See Bankers Trust Co., 452 N.W.2d at 413 (we presume court decided facts necessary to support decision in favor of plaintiff when district court failed to explain issue raised and no enlargement of ruling sought); Brichacek, 401 N.W.2d at 46 (“we assume as fact an unstated finding that is necessary to support the judgment” when district court failed to make requisite findings of fact and no rule 179(b) motion was filed); Keokuk County, 42 Iowa at 31 (where district court could not have reached its conclusion without finding a certain fact, we presume this fact was established). It is not a replacement for the requirement to preserve error and cannot be used in this case to satisfy the preservation of error requirement that an issue on review be first decided by the district court.

We now apply the preservation of error rule to this case. The rule requires a party seeking to appeal an issue presented to, but not considered by, the district court to call to the attention of the district court its failure to decide the issue.[] Benavides, 539 N.W.2d at 356; 19 James Wm. Moore et al., Moore’s Federal Practice § 205.05[1], at 205-55 (Matthew Bender 3d ed.2001) [hereinafter Moore’s Federal Practice ]. The claim or issue raised does not actually need to be used as the basis for the decision to be preserved, but the record must at least reveal the court was aware of the claim or issue and litigated it. 19 Moore’s Federal Practice § 205.05[1], at 205-55; see Linge v. Ralston Purina Co., 293 N.W.2d 191, 195-96 (Iowa 1980) (issue not preserved where it was not specifically addressed in the district court ruling and the record and ruling did not infer the issue was decided).

In this case, Senecaut III properly raised the issue regarding the jurisdiction of the court to reinstate the petition. In his motion to dismiss and to quash, he specifically claimed the voluntary dismissal deprived the court of any jurisdiction. Clearly, Senecaut III raised the issue. However, this was not the only issue raised in support of the motion so that the denial of the motion to dismiss by the district court would necessarily mean the issue was considered. Additionally, the record fails to reveal that the jurisdictional issue was considered by the district court through other means. There was no record of the hearing on the motion and the district court did not address the issue in the written ruling on the motion. The district court confined its written ruling to the issues of delay in service of process and the alteration of the original notice. See Sandbulte v. Farm Bureau Mut. Ins. Co., 343 N.W.2d 457, 466 (Iowa 1984) (an alternative argument set forth in a motion not specifically addressed by the district court ruling on the motion was not preserved for review).

Under the circumstances, the record fails to show the jurisdictional claim was considered by the district court. Sen-ecaut III failed to call to the attention of the district court its failure to consider the issue, and to give the court an opportunity to pass upon it. Accordingly, the issue is waived.[] See Benavides, 539 N.W.2d at 356.

IY. Delay in Service of Process.

Iowa Rule of Civil Procedure 49 governs the form, issuance, and service of an original notice. It was recently amended to add subsection (f), which provides “[i]f service of the original notice is not made upon the defendant ... within [ninety] days” after the petition has been filed, “the court, upon motion or its own initiative after notice to the party filing the petition, shall dismiss the action without prejudice as to that defendant ... or direct an alternative time or manner of service.” Iowa R. Civ. P. 49(f). Additionally, the new rule provides “[i]f the party filing the papers shows good cause for the failure of service, the court shall extend the time for service for an appropriate period.” Id. When the rule is read in its entirety, the phrase “party filing the papers” necessarily refers to the plaintiff or petitioner. See id. 49(b). One of the major changes in the new rule is the imposition of the ninety-day time period to complete service of process. The former rule contained no specific time period.

The amended rule contemplates that the court take action once service has not been accomplished within ninety days from the time the petition is filed. Id. 49(f). The type of action directed by the rule is to dismiss the action without prejudice, impose alternative directions for service, or grant extension of time to complete service for an appropriate period of time. Id. Extension of time requires a showing of good cause. Id.

Under the rule, the district court is required to take its action “upon motion or its own initiative after notice to the party filing the petition.” Id. Thus, this language permits either the plaintiff or the court to take the initiative. However, we think the rule also enables a defendant who has been served beyond the ninety-day period, in the absence of an order for an extension, to move to dismiss the petition based on unjustified delay in completing service of process. Thus, consistent with our interpretation under the former rule, rule 49(f) requires dismissal of a petition for the unjustified delay in service of process beyond ninety days, and provides for the filing of a motion to dismiss the petition. See Carroll v. Martir, 610 N.W.2d 850, 856 (Iowa 2000) (rule 49 interpreted as requiring dismissal for abusive delay). However, we think the new rule simplifies the procedure for courts to follow when confronted with a motion to dismiss for delay in service of process filed by a defendant who has been served more than ninety days after the petition was filed or beyond any extension. Under the prior rule, a two-step analysis was employed. See id. at 857. If there had been a delay in service, the court was first required to decide if the delay was presumptively abusive. Id. If abusive delay was established, the court was then required to decide if the delay was justified. Id. Under our new rule, it is no longer necessary for the court to engage in the first step of the analysis when service has not been made within ninety days and no extension was granted. By allowing the court to dismiss a petition after ninety days, the rule now establishes the standard for presumptive abuse. Thus, courts must now simply decide if the plaintiff has shown justification for the delay.

We apply the good cause standard to determine justification for delay. Id. at 858. Good cause requires that

“[t]he plaintiff must have taken some affirmative action to effectuate service of process upon the defendant or have been prohibited, through no fault of his [or her] own, from taking such an affirmative action. Inadvertence, neglect, misunderstanding, ignorance of the rule or its burden, or half-hearted attempts at service have generally been waived as insufficient to show good cause. Moreover, intentional nonservice in order to delay the development of a civil action or to allow time for additional information to be gathered prior to ‘activating’ the lawsuit has been held to fall short of ... good cause.... ”

Id. (quoting Henry v. Shober, 566 N.W.2d 190, 192-93 (Iowa 1997) (quoting Vincent v. Reynolds Mem’l Hosp., Inc., 141 F.R.D. 436, 437-38 (N.D.W.Va.1992))). The district court found good cause for the delay based on the confusion over the identity of the defendant’s name and the multiple efforts to accomplish service not only upon Senecaut, but later upon Senecaut III.

We agree Meier made repeated efforts to serve Senecaut and, after realizing the mistaken identity, Senecaut III. We also agree that the initial confusion over the identity of the names could support some delay in service of process. However, there was no substantial evidence in the record to support the conclusion by the district court that the continued delay in service after May 1999 constituted good cause.

Once Meier learned there were two Senecauts living in the Des Moines area and that the Senecaut who had been served on May 18 was not the Senecaut who was involved in the accident, Meier failed to take reasonable steps to serve the correct Senecaut. In early May 1999, the confusion in the identity of the two Sene-eauts was revealed and the address of the person Meier intended to serve was known. Yet, service was not completed for more than ninety days. The only explanation Meier could offer for failing to serve Seneeaut III during this period of time was that the process server repeatedly found him to be absent from his home each time service was attempted. Yet, under the circumstances, this was not a satisfactory explanation.

There was no evidence to even suggest Seneeaut III was attempting to avoid service or was absent from his home during normal times or for unusually long periods of time. The process server essentially limited the attempts to serve Seneeaut III during those times when working family members would be expected to be at work. There was no evidence of any effort by Meier to telephone Seneeaut III at his home or contact him in any other way. Additionally, Meier made no effort to serve Seneeaut III at his address between June 30 and August 18, 1999. Finally, Meier failed to seek directions from the court during this period of time.

Under the circumstances, Meier failed to present substantial evidence of good cause. We emphasize rule 49 requires service within ninety days and requires the plaintiff to take affirmative action to obtain an extension or directions from the court if service cannot be accomplished. Meier did neither. Moreover, Meier failed to justify her inability to accomplish service of process after the confusion between the identities of the two Senecauts was clarified and she obtained the correct address for Seneeaut III. See id. at 858-59 (no justification for prolonged delay in service after location of defendant was obtained). It was not enough for Meier to merely attempt service at Seneeaut Ill’s residence during times when working residents would be expected to be at work. Meier made no other efforts to accomplish service, which rendered the efforts made insufficient to justify the prolonged delay. Accordingly, the district court erred in finding good cause and in failing to dismiss the petition. Because we find the district court should have dismissed the petition based upon delay in service of process, it is unnecessary for us to address the claim involving the altered original notice.

V. Conclusion.

The district court erred as a matter of law in failing to grant the motion to dismiss filed by Seneeaut III. We reverse the decision of the district court and remand the case for entry of an order dismissing the petition.

REVERSED AND REMANDED.

      . This rule also applies to defending appeals. 19 James Wm. Moore et al., Moore’s Federal Practice § 205.05[1], at 205-57 (Matthew Bender 3d ed.2001). A prevailing party may support the district court judgment on any ground contained in the record, provided that the affirmance on that ground does not alter the rights of the parties established in the judgment. Id.; see In re Estate of Voss, 553 N.W.2d 878, 879 n. 1 (Iowa 1996); Johnston Equip. Corp. v. Indus. Indem., 489 N.W.2d 13, 17 (Iowa 1992).

      . Senecaut III does not claim the jurisdictional issue raised on appeal was not subject to the preservation of error rule. We recognize personal jurisdiction may be waived by a party, EFCO Corp. v. Norman Highway Constructors, Inc., 606 N.W.2d 297, 299 (Iowa 2000), but subject matter jurisdiction may be raised at any time. In re Marriage of Ivins, 308 N.W.2d 75, 77 (Iowa 1981); In re Estate of Dull, 303 N.W.2d 402, 406 (Iowa 1981). Notwithstanding, we believe the jurisdictional question in this case does not involve subject matter jurisdiction but the authority of the court to reinstate the case following a voluntary dismissal. When the voluntary dismissal by a plaintiff did not operate as an adjudication on the merits, we have previously found that it was unnecessary to decide under what circumstances the district court may be authorized to reinstate the case in the exercise of its inherent powers. See Ryan v. Phoenix Ins. Co., 204 Iowa 655, 657, 215 N.W. 749, 750 (1927). Yet, we recognize many courts apply the inherent powers doctrine to authorize the reinstatement of a voluntarily dismissed petition when the dismissal was due to inadvertence or other similar grounds. See, e.g., Goodman v. Gordon, 103 Ariz. 538, 447 P.2d 230, 231 (1968); Harrison v. Weisbrod, 358 S.W.2d 277, 282-83 (Mo.Ct.App.1962); Salazar v. Butler & Binion, 843 S.W.2d 763, 764 (Tex.App.1992); Seal v. Gwinn, 119 W.Va. 19, 191 S.E. 860, 862 (1937). Nevertheless, it is sufficient for us to conclude the issue presented was one of authority and Sen-ecaut III waived this issue by failing to preserve it before the district court.