author: GILBERTSON, Justice

text:
    2001 SD 7
    ARNOLD MURRAY CONSTRUCTION, L.L.C., Plaintiff and Appellee, v. Eugene HICKS, Defendant and Appellant.
    No. 21418.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 27, 2000.
    Decided Jan. 10, 2001.

      David Alan Palmer, Sioux Falls, SD, Attorneys for plaintiff and appellee.
    Douglas P. Cummings Jr., East River Legal Services, Sioux Falls, SD, Attorney for defendant and appellant.
   GILBERTSON, Justice

[¶ 1.] Arnold Murray Construction, L.L.C. sued Eugene Hicks for possession of his apartment pursuant to SDCL 21-16-1, alleging that he had been disturbing his neighbors, violating parking rules and blocking open the security door. Hicks claimed that he was entitled to reasonable accommodations under the Fair Housing Act Amendments because he was disabled. The trial court ordered Hicks to surrender possession of the apartment. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Arnold Murray Construction, L.L.C. (AMC) owns and operates an eighteen unit residential apartment complex at 615½ West 11th Street in Sioux Falls, South Dakota. Eugene Hicks (Hicks) was being evicted from a former residence. His attorney, Doug Cummings, contacted AMC and was able to arrange án apartment rental for Hicks with AMC. On September 28, 1999, AMC entered into a written lease agreement with Hicks and Sioux Falls Housing and Redevelopment Commission (Commission). Under this lease, the Commission provided rent subsidies to AMC on behalf of Hicks. The lease is based upon regulations promulgated by the United States Department of Housing and Urban Development (HUD), and prohibits discrimination on the basis of disability. Hicks suffered a brain injury twenty-three years ago, the result of which has left him disabled for purposes of this appeal.

[¶ 3.] Hicks became a center of controversy shortly after moving into his apartment. He refused to follow the parking rules of the complex. These rules stated that tenants were required to park in their garages, as the parking lot was for use only by guests and maintenance people. Hicks repeatedly violated these rules, claiming that the effects of his brain injury made it difficult for him to get out of his car after parking it in his single stall garage. For that reason, Hicks frequently parked his car in the parking lot. Hicks also repeatedly blocked open the security door. Because of his hand tremors, he claimed it was difficult to unlock the security door. AMC also received complaints from female tenants that Hicks had hung a sign in his window that read, “loose women tightened here.”

[¶ 4.] In addition, on numerous occasions Hicks engaged in direct abusive and threatening behavior toward fellow tenants. Joe Foster, the building manager, had received a complaint that Hicks was beating on his ceiling. When he confronted Hicks regarding his behavior, Hicks became belligerent, yelled profanities at Foster and waved his arms in a hostile manner. A neighbor of Hicks, Lois Wyso-lovsky testified that Hicks continually stared at her, has screamed at her, and on one occasion, stood in his doorway completely naked in her presence. Another neighbor, Pam Schar, testified that Hicks often gave her undue unwanted attention and had previously stared at her from behind bushes located near the apartment building. Hicks also verbally abused Bonnie Murray, a partner of AMC, when she confronted him regarding a violation of the parking rules. These occurrences caused the witnesses to feel threatened and fearful for their safety.

[¶ 5.] AMC issued a notice to vacate and quit to Hicks, alleging that he was not following the parking rules, was blocking open the security doors, was peeking out the windows while unclothed and was disturbing the neighbors. After Hicks failed to surrender the apartment, AMC initiated eviction proceedings pursuant to SDCL 21-16-1. As a defense to the eviction action, Hicks asserted that because he was handicapped, he was entitled to reasonable accommodation of his handicap under the Fair Housing Amendments Act (FHAA), before he could be evicted. See 42 U.S.C.A. § 3604 (West 1994). AMC claimed that Hicks was not entitled to reasonable accommodation because he posed a direct threat to the health and safety of other individuals. See Id. § 3604(f)(9).

[¶ 6.] The trial court determined that Hicks was indeed disabled under the FHAA. Based upon the testimony received at trial, the trial court found that Hicks posed a direct threat to the health and safety of the other tenants in AMC’s apartment complex. The trial court also determined that because AMC had shown that no reasonable accommodation would eliminate or acceptably diminish the risk Hicks posed, AMC was not required to show that a reasonable accommodation had been made. For those reasons, Hicks was ordered to surrender possession of the apartment. That order was stayed by this Court, pending the resolution of this appeal. Hicks now appeals, raising two issues which merit our-consideration:

1. Whether AMC was required to reasonably accommodate Hicks’ handicap.
2. Whether Hicks was given adequate notice of the grounds for his eviction.
STANDARD OF REVIEW
We review the circuit court’s findings of fact under the clearly erroneous standard. “Clear error is shown only when, after a review of all the evidence, *we are left with a definite and firm conviction that a mistake has been made.’ ” “The trial court’s findings of fact are presumed correct and we defer to those findings unless the evidence clearly preponderates against them.” Conclusions of law are reviewed under a de novo standard, giving no deference to the circuit court’s conclusions of law.

City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25 (internal citations omitted).

ANALYSIS AND DECISION

[¶ 7.] 1. Whether AMC was required to reasonably accommodate Hicks’ handicap.

[¶ 8.] Hicks claims that he is entitled to protection under the FHAA, which extends to landlords, such as AMC, that accept federal rent subsidies. The FHAA provides, in relevant part, that it is unlawful

To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of: (A) that buyer or renter....
To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of: (A) that person....

42 U.S.C.A. § 3604(f)(1), (2). Under the FHAA, discrimination includes “a refusal to make reasonable accommodations in the rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling....” Id. § 3604(f)(3)(B). However, “[n]othing in [42 U.S.C.A § 3604(f) ] requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals....” Id. § 3604(f)(9). The trial court determined that when a handicapped tenant poses a threat to the health and safety of the other tenants, and the landlord can show that no reasonable accommodation will eliminate or acceptably diminish the risk posed by the handicapped tenant, then the landlord is not required to actually attempt reasonable accommodations.

[¶ 9.] Hicks argues on appeal that AMC must first attempt reasonable accommodations to alleviate his handicap before it may terminate his lease. We disagree with Hicks’ assertion.

[¶ 10.] This issue requires us to determine when a landlord’s duty to provide accommodations arises. To aid our determination, we will examine the legislative history of the FHAA and relevant case law. The purpose of the FHAA is “to end the unnecessary exclusion of persons with handicaps from the American mainstream” by mandating that persons with handicaps be considered as individuals, rather than under a cloud of unfounded speculation and generalized misperceptions. H.R. Rep. No. 100-711, 18 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2179. To alleviate concerns that landlords would be forced to rent to handicapped individuals who may be violent, section 3604(f)(9) was enacted. Id. at 2189. When adopting this provision, Congress incorporated the case law that had developed under the Rehabilitation Act of 1973, section 504 (codified at 29 U.S.C.A. § 794 (1999)). Id. Specifically, the standard announced in School Bd. of Nassau County v. Arline, 480 U.S. 273, 287, 107 S.Ct. 1123, 94 L.Ed.2d 307 n.16, 480 U.S. 273, 107 S.Ct. 1128, 1131, 94 L.Ed.2d 307 n.16, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307, 320 n.16 (1987) was endorsed. In Arline, the Court stated that an employee with a contagious disease that posed a significant risk to the health of others in the workplace is entitled to reasonable accommodations if those accommodations will eliminate the risk to others. Id. The House Judiciary Committee stated as follows:

Thus, the direct threat requirement incorporates the Arline standard, and a dwelling need not be made available to an individual whose tenancy can be shown to constitute a direct threat and a significant risk of harm to the health or safety of others. If a reasonable accommodation could eliminate the risk, entities covered under this Act are required to engage in such accommodation pursuant to [42 U.S.C.A. § 3604(f)(3)],

1988 U.S.C.C.A.N. at 2190 (emphasis added).

[¶ 11.] The federal district court of New Hampshire dealt with the application of 42 U.S.C.A. § 3604(f)(9) in Roe v. Sugar River Mills Associates, 820 F.Supp. 636 (1993). In that case, Roe accosted another tenant using obscene and offensive language, causing the tenant to fear for his safety. For that incident, Roe was convicted of disorderly conduct. When Sugar River attempted to evict Roe, he claimed that he was entitled to reasonable accommodations for his mental handicap. Sugar River claimed that because Roe was a direct threat to the health and safety of other tenants, it was not obligated to offer reasonable accommodations. The district court held that Sugar River was required to show that no reasonable accommodation would eliminate or acceptably minimize the risk that Roe posed to the other tenants before it could evict him. Id. at 640.

[¶ 12.] In Roe v. Housing Authority of City of Boulder, 909 F.Supp. 814 (D.Colo.1995), Roe suffered from manic-depressive disorder, also known as bipolar disorder, and hearing impairment. Roe was also abusive and threatening to fellow tenants, which brought about his eviction notice. The district court adopted the reasoning of the Sugar River court, finding that “assuming Roe is handicapped or disabled, before he may lawfully be evicted [the Housing Authority] must demonstrate that no ‘reasonable accommodation’ will eliminate or acceptably minimize any risk Roe poses to other residents.Id. at 822-23. But see Stout v. Kokomo Manor Apartments, 677 N.E.2d 1060, 1065 (Ind.App.1997) (finding that reasonable accommodations not required when tenant’s son molested another tenant’s child).

[¶ 13.] Based upon the legislative history of the FHAA and its inclusion of the Arline standard, we agree with the two Roe decisions that Congress intended for landlords to attempt reasonable accommodations, even when the tenant is a direct threat to the health and safety of other tenants, if those accommodations will eliminate or acceptably minimize the risks posed by that tenant. However, we do not believe that Congress intended accommodations to be attempted or implemented if there is no reasonable expectation that the accommodation will protect the other tenants. Therefore, if a handicapped tenant is a direct threat to the health and safety of other tenants, the landlord is obligated to either reasonably accommodate the tenant’s handicap or show that no reasonable accommodation will eliminate or acceptably minimize the risk posed by the handicapped tenant. When the landlord shows that no. reasonable accommodation will curtail the risk, its duty to accommodate ceases. As the trial court in this matter noted, to require an “automatic attempt to accommodate a dangerous tenant would needlessly place other residents in the tenant’s building at risk.” This determination effectively balances the Congressional policy of including handicapped Americans in mainstream society against the need to protect the neighbors of dangerous tenants.

[¶ 14.] In the present action, the trial court determined that Hicks posed a direct threat to the health and safety of the other tenants. After reviewing the record, we cannot say that its determination was clearly erroneous. The trial court also found AMC had shown that no reasonable accommodations would diminish the risk posed by Hicks. AMC’s property manager, Bonnie Murray, who has extensive experience with handicapped tenants and the special challenges they present, testified that she did not believe any reasonable accommodation would reduce the risks posed by Hicks. Hicks introduced testimony regarding accommodations he desired to deal with his parking and controlled access door issues. However, he made no mention of any accommodations that would minimize the threat he posed to the other tenants in his building due to his emotional outbursts, verbal threats, nude appearance and other offensive conduct. Under the de novo standard, we agree with the trial court that AMC established that no reasonable accommodation would curb the threat Hicks poses.

[¶ 15.] 2. Whether Hicks was given adequate notice of the grounds for his eviction.

[¶ 16.] Hicks claims that because AMC receives Federal housing benefits through HUD, it must follow the procedures set forth in 24 C.F.R. § 982.810. That section requires that “[t]he owner must give the tenant a written notice that specifies the grounds for termination of tenancy during the term of the lease.” Id. § 982.310(e)(l)(i). Hicks claims he was not given adequate notice of the grounds for his eviction because neither the notice to vacate and quit, nor AMC’s complaint specifically alleged that Hicks was a threat to the health and safety of other tenants. The Notice given to Hicks stated four grounds for eviction: 1) not following the parking rules; 2) unsecuring the controlled access doors; 3) peeking out his windows while unclothed and with lewd notes; and 4) disturbing the neighbors. AMC’s complaint alleged that Hicks had created a hazard and nuisance to the other residents of the building when he refused to follow the parking rules, unsecured the controlled access doors, and shouted lewd remarks out of his windows. Hicks claims that he was not properly notified that his behavior was a threat to the health and safety of the other tenants, therefore he was denied his right to due process.

[¶ 17.] We addressed a similar claim in S.B. Partnership v. Gogue, 1997 SD 41, 562 N.W.2d 754. In that case, S.B. Partnership (S.B.) sent two letters and a notice to vacate to its tenant, Gogue. In those notices, S.B. failed to specify the reasons for the termination. As a defense to the subsequent eviction action, Gogue claimed that she received insufficient notice' of the reasons for her eviction. We concluded that “[w]hile it would have been better practice for [S.B.] to include reasons for termination in its notices to Gogue in the first instance, due process requires only reasonable notice and an opportunity to be heard at a ‘meaningful time and in a meaningful manner.’ ” Id. ¶ 16, 562 N.W.2d at 758-59. We then determined that Gogue had been given that opportunity through the state court eviction proceedings. Id. at 759.

[¶ 18.] Like Gogue, Hicks was given reasonable notice and an opportunity to be heard, sufficient to satisfy due process. The notices specified that his lease was being terminated for the specific conduct referred to therein. It was these actions upon which the trial court, in large part, based its decision. The issue of whether or not the specified acts constituted a threat to the health and safety of other tenants was the landlord’s burden of proof, not a specific additional factual allegation.

[¶ 19.] Hicks was given time to obtain counsel. He was able to effectively cross-examine all of AMC’s witnesses at trial. In addition, Hicks has not alerted us to any remedy that he has lost due to the allegedly insufficient -notice. He was entitled to reasonable notice and “an opportunity to be heard at a ‘meaningful time and in a meaningful manner.’ ” Id. That is precisely what he received.

[¶ 20.] The judgment is affirmed.

[¶ 21.] MILLER, Chief Justice, and SABERS, AMUNDSON, and KONENKAMP, Justices, concur.

      . Hicks suffers from slurred speech, double vision, hand tremors, poor balance when walking, and uncontrollable emotional outbursts. The trial court determined that these effects qualified Hicks as disabled under the Fair Housing Amendments Act, 42 U.S.C. § 3602(h). That classification has not been appealed by AMC.

      . There was also testimony that Hicks’ difficulty in maneuvering in his garage was due to the large number of boxes stored in the garage, rather than complications of his disability.

      . Hicks also raises the additional legal issue that he cannot be evicted unless his conduct also amounts to criminal activity. 24 C.F.R. § 982.310(c). As the conduct of Hicks clearly amounts to the criminal activity of disorderly conduct, SDCL 22-13-1(1), we need not address the underlying legal issue until such time as the relevant conduct does not rise to that of criminal activity and thus presents a tenant with a potential defense to eviction.


source: Caselaw Access Project

author: CADY, Justice.

license: Public Domain

text:
    MAX 100 L.C. d/b/a Re/Max 100, an Iowa L.C., Next Generation Realty, Inc., an Iowa Corporation, and Homebuyer’s Consultants, an Iowa Corporation, Appellees, v. IOWA REALTY COMPANY, INC., an Iowa Corporation d/b/a Iowa Realty, and First Realty, Ltd., an Iowa Corporation d/b/a First Realty, Appellants, Midamerican Energy, an Iowa Corporation, Defendant.
    No. 00-0119.
    Supreme Court of Iowa.
    Jan. 18, 2001.

      Mark McCormick of Belin Lamson McCormick Zumbach Flynn, P.C., Des Moines, and John D. French of Faegre & Benson, L.L.P., Minneapolis, MN, for appellants.
    Glenn L. Norris, Carla T. Schemmel, and David N. May of Hawkins & Norris, P.C., Des Moines, and Dennis C. Schem-mel of Schemmel Law Offices, P.C., Des Moines, for appellees.
   CADY, Justice.

This is an interlocutory appeal from an order by the district court granting a temporary injunction in-a dispute between several Des Moines area real estate companies over the division of multiple listing real estate commissions. On our review of the appeal, we vacate the temporary order for injunction entered by the district court and remand the case for further proceedings.

I. Background Facts and Proceedings.

The parties to this appeal are real estate companies located in Des Moines. They are also members of the Multiple Listing Service of the Des Moines Area Association of Realtors.

The Multiple Listing Service compiles a list and description of the homes for sale in the Des Moines area submitted by members of the association. The list is accessible to all members, and each listing broker specifies the compensation offered to other members for the sale of a home. Generally, agents are compensated on the sale of a home by a commission, which is divided equally between the seller’s agent and the buyer’s agent. The agents then split their commissions with their brokers. Typically, a real estate commission is seven percent of the gross sales price.

The controversy in this case began after Max 100, Next Generation Realty, Inc., and Homebuyer’s Consultants began to offer alternatives to the traditional compensation arrangement in the sale of a home. Next Generation charges a flat fee to buyers and sellers for its service instead of the traditional seven percent commission. Additionally, if a seller requests to be listed with the Multiple Listing Service, Next Generation charges the seller an extra fee, generally three and one-half percent of the selling price to compensate the buyer’s agent. The flat fee charged by Next Generation generally results in a lower cost to the consumer.

Homebuyer’s only represents persons seeking to purchase homes and is also compensated by a flat fee. It stopped operating as a business prior to the time the district court issued the temporary injunction. Max 100 is a franchisee of Re/Max International, Inc. It provides services to buyers and sellers on the traditional commission basis, but allows its agents to pay the broker a flat fee. This usually enables the agent to retain a larger share of the commission.

First Realty, Ltd. is a subsidiary of Iowa Realty Co., Inc. The two companies control approximately seventy percent of the Des Moines real estate market. Both companies operate under the traditional seven percent sales commission and, prior to the events of this lawsuit, divided commissions on the sale of its homes listed on the Multiple Listing Service.

Iowa Realty decided to stop sharing commissions with Next Generation for the sale of homes listed on the Multiple Listing Service shortly after Next Generation began business in 1995. Iowa Realty discontinued the practice of sharing commissions because Next Generation seldom listed homes with the Multiple Listing Service and, consequently, the agents for Iowa Realty and First Realty were unable to earn commissions for the sale of Next Generation homes. Thus, instead of splitting the seven percent commission when a home listed on the Multiple Listing Service was sold through a Next Generation agent, Iowa Realty and First Realty retained the entire amount of the commission.

Iowa Realty stopped sharing commissions with Homebuyer’s because Home-buyer’s agents only represented buyers and had no listings to place with the Multiple Listing Service. Thus, as with Next Generation, Iowa Realty and First Realty did not think it was fair to split commissions with Homebuyer’s agents when agents for Iowa Realty and First Realty would never have an opportunity to split corresponding commissions. Finally, Iowa Realty stopped sharing commissions with Max 100 in 1999, after it concluded the owner of Max 100 solicited some of Iowa Realty’s agents and possibly gained access to Iowa Realty’s proprietary information.

Next Generation, Max 100, and Home-buyer’s brought this action based on antitrust violations under Iowa’s competition law. Along with other remedies, they sought temporary injunctive relief to require Iowa Realty and First Realty to share commissions on the same basis as they do with other association members.

Following a hearing on the application for a temporary injunction, the district court granted the requested relief under Iowa Rule of Civil Procedure 321(c). The district court determined the injunction was specially authorized by Iowa Code section 553.12(1) (1999), and the plaintiffs were not required to establish the traditional elements for’the issuance of a temporary injunction of irreparable harm, maintenance of the status quo, and the lack of an adequate remedy at law. Instead, the district court determined the plaintiffs were only required to show a likelihood of success on the merits. The district court concluded the evidence produced at the temporary injunction hearing showed a likelihood of success under Iowa Code section 553.5.

Iowa Realty and First Realty sought an interlocutory appeal from the temporary injunction. We granted the request.

II. Scope of Review.

Generally, our standard of review for the issuance of injunctions is de novo. Matlock v. Weets, 531 N.W.2d 118, 121 (Iowa 1995); see State v. Cedar Rapids Bd. of Realtors, 300 N.W.2d 127, 128 (Iowa 1981). This de novo review is based upon the equitable jurisdiction of the court to issue injunctions. Matlock, 531 N.W.2d at 121. Yet, the decision to issue or refuse “a temporary injunction rests largely [within] the sound discretion of the trial court.” Kent Prods., Inc. v. Hoegh, 245 Iowa 205, 211, 61 N.W.2d 711, 714 (1953). We recognize a temporary injunction is a delicate matter, and the exercise of judicial power to issue or refuse a temporary injunction “requires great caution, deliberation, and sound discretion.” Kleman v. Charles City Police Dep’t, 373 N.W.2d 90, 96 (Iowa 1985). Thus, we will not generally interfere with the district court decision unless the discretion has been abused or the decision violates some principle of equity. Kent Prods., 245 Iowa at 211, 61 N.W.2d at 714. The decision will also be reversed “if not based upon sufficient grounds.” Swan v. City of Indianola, 142 Iowa 731, 734, 121 N.W. 547, 549 (1909).

III. Injunctive Relief.

Iowa Rule of Civil Procedure 321 describes three circumstances in which a court may issue a temporary injunction. See Iowa R.Civ.P. 321. The first circumstance pertains to an act causing great or irreparable harm. Iowa R.Civ.P. 321(a). The second circumstance pertains to a violation of a right “tending to make the judgment ineffectual.” Iowa R.Civ.P. 321(b). Finally, the court may issue a temporary injunction “[i]n any case specially authorized by statute.” Iowa R.CivJP. 321(c).

Generally, the issuance of an injunction invokes the equitable powers of the court and courts apply equitable principles. See Matlock, 531 N.W.2d at 123. The standards considered in granting temporary injunctions are similar to those for permanent injunctions, except temporary injunctions require a showing of the likelihood of success on the merits instead of actual success. 42 Am.Jur.2d Injunctions § 8, at 566 (2000). These traditional equitable principles are reflected in subsections (a) and (b) of rule 321. See 42 Am. Jur.2d Injunctions § 12, at 572. In applying these principles to temporary injunctions, courts consider the “circumstances confronting the parties and balance the harm that a temporary injunction may prevent against the harm that may result from its issuance.” Kleman, 373 N.W.2d at 96 (citing O. Fiss & D. Rendleman, Injunctions 343-44 (2d ed.1984) (“suggesting factors to be considered by court in exercising its discretion to grant or deny a temporary injunction”)). Nevertheless, the legislature may impose a duty to grant an injunction by specifying conditions in a statute. 42 Am.Jur.2d Injunctions § 23, at 594. When this is done, the conditions specified in the statute supersede the traditional equitable requirements. Id.

In this case, the district court determined Iowa Code section 553.12(1) “specially authorized” the issuance of a temporary injunction, as contemplated by rule 321(c). The relevant portion of section 553.12 provides:

The state or a person who is injured or threatened with injury by conduct prohibited under this chapter may bring suit to:
(1) Prevent or restrain conduct prohibited under this chapter and remove the conduct’s effect by injunction....

Consequently, the district court found the plaintiffs only needed to prove the defendants engaged in conduct prohibited under chapter 553 to support the issuance of an injunction. The district court issued the injunction after finding a likelihood that the defendants violated section 553.5 by establishing a monopoly.

Although section 553.12(1) generally allows for injunctive relief as a remedy for a violation under the competition law, the only standard under the statute for granting injunctive relief is that the conduct be prohibited by the competition law. This standard contemplates an adjudication on the merits and considers none of the unique factors that support injunctive relief. If our legislature had wanted to specially authorize the district court under section 553.12(1) to issue a temporary injunction independent of a balancing of the equitable considerations, it would have articulated some standard for the court to apply, considering the extraordinary nature of temporary injunctions. See Kleman, 373 N.W.2d at 96. The absence of a standard or directive in section 553.12(1) indicates our legislature intended injunc-tive relief to be granted or denied within the discretion of the court under the applicable equitable principles. See 42 Am.Jur.2d Injunctions § 23, at 595.

It is also important to consider that the Iowa Competition Law is patterned after the federal Sherman Act. Cedar Rapids Bd. of Realtors, 300 N.W.2d at 128. Both acts are antitrust statutes, prohibiting monopolies and attempts to monopolize. See Davies v. Genesis Med. Ctr., 994 F.Supp. 1078, 1103 (S.D.Iowa 1998). Iowa Code section 553.2 explicitly requires us to consider federal cases construing applicable sections of the Sherman Act when interpreting our own antitrust statute. Id.; Neyens v. Roth, 326 N.W.2d 294, 297 (Iowa 1982); Cedar Rapids Bd. of Realtors, 300 N.W.2d at 128; see Iowa Code § 553.2 (Chapter 553 “shall be construed to complement and be harmonized with the applied laws of the United States which have the same or similar purpose,” and “shall be made to achieve uniform application of the state and federal laws prohibiting ... monopolistic practices”). Thus, our legislature intended the Iowa Competition Law to be construed uniformly with the Sherman Act. See Neyens, 326 N.W.2d at 298.

Section 26 of the Sherman Act correlates with Iowa Code section 553.12. See 15 U.S.C.A. § 26 (1997). That section provides

Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief ..., against threatened loss or damage by a violation of the antitrust laws ..., when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings ....

Id. (emphasis added). Unlike section 553.12, section 26 expressly directs the court to consider equitable principles in determining injunctive relief. Nevertheless, this omission does not necessarily evidence our legislature’s intent to stray from an application of the traditional equitable doctrines. We should not limit the applicability of equitable principles without a valid and clear legislative mandate. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 1804, 72 L.Ed.2d 91, 99 (1982) (unless a statute expressly or implicitly restricts a court’s equity jurisdiction, a court is to consider the established equitable principles); Waterfront Comm’n of New York Harbor v. Constr. & Marine Equip. Co., 928 F.Supp. 1388, 1397 (D.N.J.1996) (same). The failure of our legislature to mention the equitable power of courts in providing for injunctive relief as a remedy under section 553.12(1) cannot be considered a clear indication of an intent to depart from our traditional equitable doctrines. To the contrary, our legislature has shown it knows how to specifically modify the equitable standards for the issuance of temporary injunctive relief in other statutes. See Iowa Code § 20.12(3) (if a violation has occurred or is imminent, “the plaintiff need not show the violation” would cause irreparable injury); § 499.9 (injunction may be obtained “despite the adequacy of any legal or other remedy”).

When federal statutes authorize injunctive relief, the presumption exists that Congress intended courts to apply equitable principles. Sharp v. Parents In Cmty. Action, Inc., 172 F.3d 1034, 1038 (8th Cir.1999). Thus, our federal courts utilize equitable principles in deciding applications for temporary injunctive relief under section 26 of the Sherman Act. See, e.g., Boise Cascade Int’l, Inc. v. N. Minnesota Pulpwood Producers Ass’n, 294 F.Supp. 1015, 1020 (D.Minn.1968); McKesson & Robbins, Inc. v. Charles Pfizer & Co., 235 F.Supp. 743, 746 (E.D.Pa.1964). We can discern no reason to depart from these standards under the Iowa Competition Law.

We conclude that traditional equitable principles must be considered in determining whether a temporary injunction should issue under Iowa’s competition law. In addition, courts must consider the likelihood of success on the merits at the final hearing. See 42 Am.Jur.2d Injunctions § 8, at 566; see also Kleman, 373 N.W.2d at 95-96 (citing Pickard v. Castillo, 550 S.W.2d 107, 111 (Tex.Civ.App.1977), which required plaintiffs applying for temporary injunction to offer evidence proving their probable subsequent right to a permanent injunction). Not only does this conclusion comply with the federal courts’ interpretation of similar provisions of the Sherman Act, but it also coincides with the practice of our common law in the issuance of injunctions. See 2B Norman J. Singer, Sutherland Statutory Construction § 50.05, at 162 (6th ed.2000) (“[t]here is a presumption that a statute is consistent with the common law,” and thus a statute creating a new “method of enforcing a right which existed before is regarded as cumulative”). Furthermore, there is no language in the statute that specially authorizes temporary injunctions.

IV. Conclusion.

Section 553.12(1) does not specially authorize the issuance of a temporary injunction. Accordingly, the district court could only issue a temporary injunction in this case under the first two subparagraphs of rule 321 and after a complete and deliberate consideration of the other corresponding equitable principles.

Ordinarily, we could proceed on appeal to determine whether an injunction should have been issued by applying the governing equitable principles the district court failed to apply. However, we are without the benefit of a decision by the district court based on the applicable equitable principles. The district court did not make findings on the equitable factors that comprise a decision to grant or deny a temporary injunction.

Considering the delicate nature of the deliberations necessary for the issuance or denial of a temporary injunction, we think the district court should be given an opportunity to make a decision based upon an application of the correct standard prior to our review of that decision. This will give us an opportunity to properly consider the findings of fact on the applicable equitable factors as well as the decision itself.

Accordingly, we vacate the decision of the district court and remand the case for a decision based on the present record, in light of the traditional equitable principles applicable to the issuance of temporary injunctions. The district court should also reconsider the issue of the likelihood of success of the case on the merits. We do not retain jurisdiction.

VACATED AND REMANDED.


text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Sheldon M. GALLNER, Respondent.
    No. 00-1247.
    Supreme Court of Iowa.
    Jan. 18, 2001.

      Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.

      Roger J. Kuhle, West Des Moines, and Joseph D. Thornton, Council Bluffs, for respondent.

       Senior judge assigned by order pursuant to Iowa Code section 602.9206 (1999).

   CADY, Justice.

The Board of Professional Ethics and Conduct charged Sheldon M. Gallner with engaging in conduct in violation of the Code of Professional Responsibility involving misrepresentation, excessive attorney fees, an improper fee arrangement as a reward for the referral of business, and endorsement of a client’s name on a check without authorization. The Grievance Commission recommended Gallner be reprimanded and admonished for engaging in various counts of misrepresentation. It recommended the other claims be dismissed. On our review, we find Gallner violated numerous provisions of the Code of Professional Responsibility, and we suspend his license to practice law.

I. Background Facts and Proceedings.

Sheldon Gallner practices law in Council Bluffs. He is an experienced lawyer and practiced with his brother until recent years. Gallner primarily practices in the area of workers’ compensation and is recognized for his expertise in the area. He has practiced for more than twenty-five years. Pie was the president of the Iowa Association of Workers’ Compensation Attorneys at the time of the proceedings. Gallner was reprimanded in 1994 for advancing living expenses to clients.

The evidence produced at the hearing before the Commission revealed multiple acts of misconduct. The thrust of the violations focused on the various times Gallner misstated the amount of his fee for representing injured workers in workers’ compensation claims in letters written to the Social Security Administration office in Council Bluffs. On several occasions, Gall-ner informed the Social Security Administration office his attorney fee for representing a client in a workers’ compensation case was greater than the amount he charged his client. On another occasion, Gallner never charged a fee for representing an injured worker in a claim for uncontested weekly healing-period benefits, but informed the Social Security Administration office that a fee had been charged in a bogus amount. In total, Gallner wrote at least six such letters over a period of ten years.

The Social Security Administration used the information supplied by Gallner to determine whether to limit benefits to injured workers who received both social security disability benefits and workers’ compensation benefits. The Social Security Administration deducts the amount of attorney fees from the amount of workers’ compensation benefits to determine whether to limit social security disability benefits. By reporting exaggerated attorney fees to the Social Security Administration, Gallner enabled some of his clients to receive more social security disability benefits than they would have been entitled to under the law.

Gallner offered many reasons to justify his actions. He claimed the offset law was confusing and permitted a lawyer to report the fee that could have been charged by the attorney instead of the actual fee charged. He also claimed that he began to follow the practice after talking to other lawyers who believed it was permissible to report a fee not actually received. Gallner offered testimony at the hearing from an attorney who opined that it was permissible for a lawyer to utilize the actual fee for workers’ compensation purposes and a larger fee for the purposes of the Social Security Administration. The Board offered expert testimony to the cpntrary.

Gallner also challenged the motives of those responsible for initiating the ethics complaint. One of these people was a former client who also brought an unsuccessful malpractice action against Gallner. Another was his brother.

The evidence at the hearing also addressed allegations that Gallner charged two clients excessive fees on various occasions and, on another occasion, returned a fee to a client as a reward for the referral of clients to his office. There was further evidence that Gallner signed a name of a client on the back of a check made payable to the client and Gallner without authorization from the client. Gallner promptly realized the mistake and informed his client. The client was called into the office, and the matter was resolved.

The Commission found some of the letters written by Gallner to the Social Security Administration on behalf of clients misstated his fee. It concluded these letters violated DR 7-102(A)(5) (knowingly making false statements on behalf of a client). The Commission found that two letters written in 1985 and one letter written in 1993 were violations of the Code. In these letters, Gallner stated he received or took a fee in a specific amount or a percentage of a specific amount of the recovery. The amount of the fee, however, was false. The Commission found that other letters written in 1994 and 1995 may have been misleading, but were not specific enough to constitute misstatements. In one letter, Gallner stated he had a “contract to take 25%” of the weekly compensation. In another letter, Gallner stated he had a contract that entitled him to twenty-five percent of the weekly benefit amount. The Commission found these letters did not contain misstatements because Gallner did not specifically state the fee was taken.

The Commission further found the evidence did not support a finding that Gall-ner charged excessive fees or returned a fee to a client as a reward for the referral of business. Finally, the Commission found Gallner mistakenly signed his chent’s name on the back of a check, but his conduct did not violate DR 9 — 102(B)(1).

The Commission recommended Gallner be publicly reprimanded for writing the false letters and privately admonished for writing the misleading letters. It recommended the other counts be dismissed.

II. Scope of Review.

Our review is de novo. Ct. R. 118.10. We give respectful consideration to the recommendations of the Commission, but ultimately decide the appropriate discipline under the specific facts of each case. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Beckman, 557 N.W.2d 94, 95 (Iowa 1996). The misconduct must be proven by a convincing preponderance of the evidence. Id.

III. Violations.

The applicable federal regulations clearly provide that the actual legal expenses incurred by a disabled worker in obtaining workers’ compensation benefits are deducted from the amount of workers’ compensation benefits received by the worker to determine any offset of social security disability benefits. See 20 C.F.R. § 404.408(d) (2000) (“[ajmounts paid or incurred, or to be incurred” for legal expenses are excluded from the computation of reduced workers’ compensation benefits so long as they reflect “the actual amount of [legal] expenses already incurred or a reasonable estimate”). In each letter Gall-ner wrote to the Social Security Administration, he misstated the amount of the fee. In two of the letters, the representations were indirect, but clearly enough to constitute false representations. The effect of each letter written by Gallner was “to mislead rather than to inform.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Smith, 569 N.W.2d 499, 501 (Iowa 1997). Moreover, Gallner wrote the letters with the intent that the Social Security Administration rely upon the false representations. Consequently, we reject any claim that the false statements by Gallner resulted from confusion or mistake. Even if Gallner believed it was permissible under federal law to deduct attorney fees in an amount he could have charged his client, he nevertheless misstated the amount of his fee to the Social Security Administration office. Gallner misstated the facts to help his clients receive more benefits than they were entitled to receive. A fair consideration of all the evidence reveals no confusion or mistake, but design and purpose.

We conclude this conduct engaged in by Gallner violated DR 1-102(A)(4), (5), and (6). This same conduct also violated DR 7-102(A)(5). The letters written by Gall-ner not only involved dishonesty and misrepresentation, but were also prejudicial to the administration of justice and adversely reflected on the fitness to practice law. The letters also constituted false statements of fact.

We agree with the Commission that the evidence concerning the excessive fees and the return of a fee to a client does not support a finding of a violation of the Code by a preponderance of the evidence. Although the circumstances described by the evidence were suspicious, the evidence was too conflicting and uncertain to support the finding of a violation. Furthermore, the evidence concerning the endorsement of a check without authorization or an indication of the representative capacity did not support a violation of DR 9-102(B)(1). Although Gallner signed the client’s name, he did so by mistake. After realizing the mistake, he notified the client to explain it. Gallner failed to indicate his representative capacity in signing the check, but realized his mistake after signing the client’s name and did not proceed to note his representative capacity after knowing the client’s signature was mistakenly made. Under these circumstances, no violation of DR 9 — 102(B)(1) occurred.

IV. Discipline.

The sanction to result in an attorney disciplinary action rests with the particular facts of each case. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Carr, 588 N.W.2d 127, 129 (Iowa 1999). In determining the sanction under the circumstances-of each case, we consider the nature of the violations, “the need for deterrence, protection of the public, maintenance of the reputation of the bar,” and the violator’s fitness to practice law. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lemanski, 606 N.W.2d 11, 14 (Iowa 2000).

In considering these factors in this case, it is apparent that Gallner engaged 'in a pattern of factual misstatements over an extended period of time. Normally, a pattern of misconduct gives rise to enhanced sanctions. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lesyshen, 585 N.W.2d 281, 288 (Iowa 1998). The pattern of conduct in this case also involved an element of deceit. In Committee on Professional Ethics & Conduct v. Bauerle, 460 N.W.2d 452 (Iowa 1990), we said:

Fundamental honesty is the base line and mandatory requirement to serve in the legal profession. The whole structure of ethical standards is derived from the paramount need for lawyers to be trustworthy. The court system and the public we serve are damaged when our officers play fast and loose with the truth.

Bauerle, 460 N.W.2d at 453.

Gallner was also disciplined in the past. His prior disciplinary action is properly considered as an aggravating circumstance in this case. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Clauss, 530 N.W.2d 453, 455 (Iowa 1995). Moreover, the prior ethical violation involved prohibited acts by Gallner for the purpose of helping clients, as in this case. It is also proper to consider in this case that Gallner is an experienced lawyer who practices extensively in the area of workers’ compensation. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Wagner, 599 N.W.2d 721, 730 (Iowa 1999) (attorney’s experience in the practice of law is an aggravating factor to consider). These factors all point to the imposition of sanctions more severe than those recommended by the Commission.

The Commission considered a variety of factors in the mitigation of sanctions. These factors included the existence of confusion and competing legal opinions of the propriety of the conduct, the motivation of the accusers, the lack of personal greed, the passage of time, and the lack of harm. In our consideration of these factors, we find little support for mitigation of sanctions.

In determining the existence of a violation in this case, we rejected the notion that Gallner acted out of confusion or in response to erroneous advice from others. Moreover, there was no confusion over the actual false statements made by Gallner in the letters to the Social Security Administration. Even if he erroneously believed the fee he could have charged the client could be used as a deduction, the amount of the fee he told the Social Security Administration he charged was false artd misleading. He purposely misstated the amount of his fee. Nevertheless, ignorance of the law or erroneous advice does not excuse a breach of ethics by a lawyer. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Evans, 537 N.W.2d 783, 785 (Iowa 1995) (finding attorney’s alleged unfamiliarity with the probate code to be an unpersuasive argument, as well as evidence of his unfitness to practice law); Comm. on Prof'l Ethics & Conduct v. Zimmerman, 354 N.W.2d 235, 237-38 (Iowa 1984) (ignorance of the law is never a defense, especially for an attorney holding himself out as informed on a particular matter). It is also unimportant that Gall-ner’s accusers may have been motivated to report his conduct by animosity or ill feelings. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sunleaf, 588 N.W.2d 126, 127 (Iowa 1999). Similarly, it is unimportant that Gallner’s clients may not have received more benefits than they were entitled to receive in some instances because of the false letters. Gallner wrote the letters in an effort to obtain more benefits than his clients were entitled to receive, and the failure to achieve the ultimate goal does not mitigate the wrongful attempt. Additionally, conduct motivated by an attempt to benefit a client does not mitigate or excuse the making of false statements. See Bauerle, 460 N.W.2d at 453. Finally, although some of the conduct occurred as far back as 1985, the passage of “[t]ime is only a mitigating factor when it is accompanied by evidence of changes that reflect [upon the attorney’s] current fitness to practice law.” Comm, on Prof'l Ethics & Conduct v. Hall, 463 N.W.2d 30, 36 (Iowa 1990). In this case, Gallner committed unethical conduct as late as 1995.

We believe the sanction in this case should be no less than the sanction imposed in Bauerle, 460 N.W.2d at 453-54. In that case, a lawyer altered and backdated partnership documents, prepared a backdated fee invoice, and notarized known signatures in the absence of the persons. Id. at 453. We indefinitely suspended the lawyer’s license to practice law with no possible reinstatement for six months. Id. at 454.

Based on all the circumstances of this case, we indefinitely suspend the license of Sheldon M. Gallner to practice law with no possible reinstatement for six months following the filing of this opinion. The suspension shall apply to all aspects of the practice of law. See Ct. R. 118.12. Any application for reinstatement shall be governed by Ct. R. 118.18. Costs are assessed to Gallner. See Ct. R. 118.22.

LICENSE SUSPENDED.

McGIVERIN, S.J., participates in place of LARSON, J., who takes no part.

      . The Social Security Administration limits the total benefits (social security disability and workers’ compensation) of a disabled worker to eighty percent of the worker's pre-injury earnings. See Robert E. Francis, Social Security Disability Claims — Practice and Procedure § 2:11, at 13 (1983) (The offset is designed to prevent the worker from receiving combined social security and workers' compensation benefits in excess of eighty percent of usual earnings.). This is done to eliminate duplication of benefits and provide a disabled worker with an incentive to return to work. Campbell v. Shalala, 14 F.3d 424, 427 (8th Cir.1994).

      . In determining whether to limit the disability insurance benefits to an individual who also receives workers' compensation benefits, the Social Security Administration considers only the net workers’ compensation benefits received. In determining net workers' compensation benefits, the Social Security Administration deducts the actual amount of legal expenses incurred. See 20 C.F.R. § 404.408 (2000).


author: LAVORATO, Chief Justice.

text:
    DIRECTOR OF the IOWA DEPARTMENT OF HUMAN SERVICES and Director of the Iowa Department of Corrections, Plaintiffs, v. IOWA DISTRICT COURT FOR JEFFERSON COUNTY, Defendant.
    No. 98-0893.
    Supreme Court of Iowa.
    Jan. 18, 2001.

      Thomas J. Miller, Attorney General, and Stephen C. Robinson and Layne Lindebak, Assistant Attorneys General, for plaintiffs.
    Thomas M. Walter of Johnson, Hester, Walter <& Breckenridge, L.L.P., Ottumwa, for defendant.
   LAVORATO, Chief Justice.

The Director of the Department of Human Services and the Director of the Department of Corrections filed a petition for writ of certiorari in this court, challenging a district court judgment ordering the State to pay the costs of a criminal defendant’s care. This court determined that a writ should issue and entered an order to that effect. Because we conclude the two directors did not file the petition in a timely manner, we annul the writ.

I. Background Facts and Proceedings.

On December 4, 1995, the State filed a trial information charging Carlton Robert Ward with a variety of offenses, including lascivious acts with a child, a class D felony. See Iowa Code § 709.8 (1995). Several months later, Ward’s counsel filed a motion to determine Ward’s competency. See Iowa Code § 812.3. Following a hearing to determine Ward’s competency, the district court entered an order on May 28, 1996. In the order, the district court (1) found that Ward was incompetent, (2) ordered no further proceedings be taken until Ward’s competency was restored, and (3) committed Ward to the custody of the Iowa Department of Human Services (DHS) for placement in the Iowa Mental Health Institute (IMHI) at Mount Pleasant, Iowa. See Iowa Code § 812.4.

Following a hearing on February 24, 1997, the district court found that it was not necessary for Ward to be placed at the IMHI and that further reports were needed before the court could determine Ward’s competency. The court ordered that Ward “be placed at ResCare Cedar Creek Facility in Fairfield, Iowa, as a special ward, and that said placement shall include supervision and administration of medications.... ”

The record reflects that Ward pleaded guilty to lascivious acts with a child on July 8, 1997. The record does not reflect any determination that Ward’s competency had been restored sufficiently to enable him to enter the plea. See Iowa Code § 812.5. We assume for the purposes of this appeal that the district court made such a determination.

On February 9, 1998, the district court entered a judgment of conviction and sentence. The court ordered that Ward be committed to the custody of the Iowa Department of Corrections (DOC) for a term not to exceed five years. See Iowa Code § 902.9(4). The court suspended the sentence, pending Ward’s future good behavior and placed him on probation to the Eighth Judicial District Department óf Correctional Services for five years. See Iowa Code § 907.3(3). The court further ordered that, “[a]s a specific term of probation, the defendant shall reside in the Cedar Creek ResCare Facility or a like facility.”

The court additionally ordered Ward to apply all of his social security resources, except for a minimal amount for personal expenses, “to his costs at the care center.” The court ordered the State to “pay for all amounts not covered by the defendant’s social security.”

As part of a plea bargain and at the request of the county attorney, the court ordered the State to pay (1) the remaining balance on the IMHI bill at Mount Pleasant, Iowa, in the amount of $20,581.78; (2) the unpaid balance due to Cedar Creek ResCare facility in the amount of $5967.43; and (3) any costs beyond Ward’s contribution for any future care.

On May 11, 1998, the district court entered an order in which it found that the State had failed to make the payments for Ward’s care at the Cedar Creek ResCare facility as set out in the February 9, 1998 judgment. The court ordered the director of DHS and the director of DOC to appear before the court “to determine why such payments have not been made.” The record shows that this order was faxed to the director of the DHS on May 18,1998. The DOC learned of the order on May 20,1998.

On May 29 the director of DHS and the director of DOC filed in this court a petition for writ of certiorari and request for stay. They contended the district court exceeded its jurisdiction and/or acted illegally when it ordered the State to pay the costs noted in the February 9, 1998 judgment. Additionally, they asserted the district court lacked personal jurisdiction over them to order their appearance in court pursuant to its May 11, 1998 order. We issued the writ on July 10 and stayed the district court’s May 11 order, pending further order of this court.

II. Scope of Review.

An original action in this court proceeds under Iowa Rule of Appellate Procedure 303. So far as applicable the action is by ordinary proceedings. See Iowa R.Civ.P. 307(b). In this original certiorari action, the two directors are the plaintiffs, the district court is the named or nominal defendant, and Ward is the underlying defendant. See Iowa RApp. P. 303.

A writ of certiorari lies where a lower board, tribunal, or court has exceeded its proper jurisdiction or otherwise has acted illegally. Iowa R.Civ.P. 306. Therefore, “we may examine only the jurisdiction of the district court and the legality of its actions.” Christensen v. Iowa Dist. Ct., 578 N.W.2d 675, 678 (Iowa 1998). “Illegality exists when the court’s findings lack substantial evidentiary support, or when the court has not properly applied the law.” Id. Our review of the district court’s action is therefore for correction of errors of law. See Iowa R.App. P. 4; French v. Iowa Dist. Ct., 546 N.W.2d 911, 913 (Iowa 1996).

III. Issues.

The issues the plaintiffs raise before us are the ones asserted in the petition for writ of certiorari. Ward, the defendant in the underlying criminal case, has assumed representation of the district court, the nominal defendant. Ward contends that the petition for writ of certiorari is untimely and should therefore be dismissed. He further contends that, even if the petition is timely, the writ should be annulled because the district court has (1) inherent authority under article V of the Iowa Constitution and (2) statutory authority pursuant to Iowa Code chapters 901 and 907 to order the State to pay the contested costs.

For reasons that follow, we think the petition for certiorari was untimely as to the February 9, 1998 judgment but was timely as to the May 11, 1998 order. Therefore, we restrict our discussion to the timeliness issue regarding the February 9 order and the propriety of the May 11 order.

IV. Timeliness of the Petition for Writ of Certiorari.

Iowa Rule of Civil Procedure 307(c) provides:

The petition [for writ of certiorari] must be filed within thirty days from the time the tribunal, board or officer exceeded its jurisdiction or otherwise acted illegally. An extension of such time, however, may be allowed by the reviewing court upon a showing that failure to file the petition within the time provided was due to a failure of the tribunal, board or officer to notify the petitioner of the action complained of. Any motion for extension of time shall be filed with the clerk of the court in which the writ of certiorari is sought within 90 days of the action complained of.

Iowa R.Civ.P. 307(c) (emphasis added).

According to the rule, the petition must be filed within thirty days from the time the tribunal exceeded its jurisdiction or otherwise acted illegally. Here, the judgment in question was entered on February 9, 1998. The thirty-day deadline for filing the petition therefore expired on March 11, 1998. The petition was filed on May 29, 1998. Consequently, the petition was untimely.

However, this court may grant an extension of time to file the petition if it is shown that the “failure to file the petition within the time provided was due to a failure of the tribunal ... to notify the petitioner of the action complained of.” Iowa R. Civ. P. 307(c). But, a motion asking for such extension must be filed with the clerk of this court “within 90 days of the action complained of.” Id.

Here, the plaintiffs point out that they did not receive notice of the February 9 Judgment until May 18 (DHS) or May 20 (DOC). However, the plaintiffs did not file a motion with this court asking for an extension. Nor did they ask this court to treat their petition as a request for an extension. However, even if we construe the petition as additionally embodying a request for an extension, the request would still be untimely because the petition was filed 109 days after the “action complained of.” Rule 307(c) is clear that requests for additional time to file a petition for writ of certiorari based on a tribunal’s failure to notify the plaintiff of the action complained of must still be filed within ninety days of the action complained of. The petition for writ of certio-rari was therefore untimely.

One may argue that strict adherence to the rule under the circumstances here is unfair because the plaintiffs never received notice in time to file for an extension of time. In other words, it seems unfair to punish a plaintiff for failing to file a petition for a writ of certiorari in a timely manner when that failure was through no fault of the plaintiff. On the other hand, while rule 307(c) recognizes that in some cases it might be impossible to file a timely petition, it also recognizes that at some point, regardless of those circumstances, the courts must “draw the line.”

We conclude that we have no jurisdiction to consider the petition for writ of certiorari, and for that reason we must dismiss it. See O’Malley v. Gundermann, 618 N.W.2d 286, 291 (Iowa 2000) (holding that an untimely filing of a petition for a writ of certiorari deprives the reviewing court of subject matter jurisdiction, and for that reason the petition must be dismissed). Having reached this conclusion, we do not imply that what the county attorney did here was binding on the plaintiffs or that the February 9 judgment was binding on them. Our conclusion that we have no jurisdiction does not preclude the plaintiffs from contending in any future litigation that, because they were not parties to the action and had no prior notice, they were not bound by the judgment. We express no opinion as to the merits of these issues.

V. The Propriety of the May 11, 1998 Order.

As mentioned, on May 11,1998, the district court ordered the director of DHS and the director of DOC to appear before it to determine why the State had not made the payments set out in the February 9, 1998 judgment. The plaintiffs challenge the order, contending the court did not have personal jurisdiction over them and the order did not require them to do anything. The plaintiffs’ petition for writ of certiorari challenging this action was timely because it was filed within thirty days of the May 11 order.

It is true, as the plaintiffs contend, that they were not parties to the underlying criminal action and the February 9 judgment did not order either one of the plaintiffs to do anything. However, the February 9 judgment did require “the State” to make the payments for Ward’s care. We construe the May 11 order as one merely asking for information as to why the State had not made the payments and not one seeking to hold the plaintiffs in contempt of court. The plaintiffs were in the best position to explain why the State did not make the payments. In addition, a hearing as provided for in the May 11 order would have given the plaintiffs an opportunity to explain their position and perhaps convince the court to set aside the February 9 judgment.

We conclude the district court acted legally and within its jurisdiction when it entered the May 11 order. We suggest, however, that judges refrain from ordering department heads to appear before them without offering such officials an opportunity to designate suitable representatives to appear in their stead. See In re D.C.V., 569 N.W.2d 489, 495 (Iowa 1997).

VI. Disposition.

Because the plaintiffs did not file the petition for writ of certiorari in a timely manner, we must annul the writ with regard to the February 9, 1998 judgment. Because we conclude the district court acted legally and within its jurisdiction when it entered the May 11 order, we also annul the writ as to that order.

WRIT ANNULLED.


author: LARSON, Justice.

text:
    EDWARD ROSE BUILDING COMPANY, Appellee, v. CASCADE LUMBER COMPANY, Appellant.
    No. 98-1602.
    Supreme Court of Iowa.
    Jan. 18, 2001.

      Dave Hughes, Cascade, and Roger J. Kurt, Dubuque, for appellant.
    Chad C. Leitch and Davin C. Curtiss of O’Connor & Thomas, P.C., Dubuque, for appellee.
   LARSON, Justice.

The issue in this case is whether an Illinois judgment may be enforced in Iowa under Iowa Code chapter 626A (1997) in the face of the judgment debtor’s argument that the Illinois court lacked jurisdiction. We reject this argument and hold the district court properly enforced the Illinois judgment.

I. Facts and Prior Proceedings.

Cascade Lumber Company, an Iowa corporation, contracted with Edward Rose Building Company (Edward Rose), a Michigan corporation, to manufacture building trusses and deliver them to a building site in Illinois. A dispute arose, and on July 16, 1997, Cascade filed a declaratory judgment action in Dubuque County to determine the parties’ rights and obligations. While that action was pending, Edward Rose sued Cascade on the contract in an Illinois court. Cascade was served notice of the Illinois suit but did not participate in it, and on October 22, 1997, the Illinois court entered a default order against Cascade. In December 1997 the Illinois court entered a judgment against Cascade for $59,778.

Edward Rose filed the Illinois judgment in the Iowa district court as provided in Iowa Code chapter 626A, our Uniform Enforcement of Foreign Judgments Act. Cascade filed an objection to the filing of the judgment, contending the Illinois court lacked jurisdiction to enter it because the Iowa case, which had been filed first, preempted jurisdiction. The district court rejected Cascade’s argument and ruled the Illinois judgment was enforceable in Iowa.

II. Disposition.

Under the United States Constitution, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” U.S. Const. art. IV, § 1; see also Nat’l Equip. Rental, Ltd. v. Estherville Ford, Inc., 313 N.W.2d 538, 541 (Iowa 1981). The Full Faith and Credit Clause requires the courts of each state to give a judgment of another state the same pre-clusive effect as it has in the state in which it was rendered, and this is true even if the judgment is obtained by default. Nat'l Equip. Rental, 313 N.W.2d at 541.

Enforcement of a foreign judgment has been expedited by our adoption in 1979 of the Uniform Enforcement of Foreign Judgments Act, now found as Iowa Code chapter 626A. Under this act,

[a] copy of a foreign judgment authenticated in accordance with an Act of Congress or the statutes of this state may be filed in the office of the clerk of the district court of a county of this state which would have venue if the original action was being commenced in this state. The clerk shall treat the foreign judgment in the same manner as a judgment of the district court of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of the district court of this state and may be enforced or satisfied in like manner.

Iowa Code § 626A.2(1).

The purpose of statutes like chapter 626A is to give effect to a foreign judgment without the necessity of suing on the judgment in a second action, although the latter remedy was preserved in Iowa by the uniform act. See Iowa Code § 626A.6. The commissioners’ note to the uniform act explains the rationale:

One of the things that contributes to calendar congestion is the Federal necessity of giving full faith and credit to the judgments of courts of other states. U.S. Const, art. IV, § 1. While there is no constitutional requirement that a debtor who has had a full due process trial in one state need be given a second full scale trial on the judgment in another state, this is the only course generally available to creditors. The usual practice requires that an action be commenced on the foreign judgment. The full procedural requirements apply to the second action.

Unif. Enforcement of Judgments Act (revised 1964), 13 U.L.A. 171 commissioners’ prefatory note (1986).

Cascade contends the Illinois judgment is not entitled to full faith and credit because the Illinois court did not have jurisdiction to enter it. It does not contend, as the judgment debtor did in Eagle Leasing v. Amandus, 476 N.W.2d 35, 37 (Iowa 1991), that the foreign judgment was void for lack of personal jurisdiction. Cascade instead makes a preemption argument — that once the Iowa action was commenced the Illinois court could not become involved. Cascade cites no cases on point but relies on language in an analogous case, Central National Bank v. Stevens, 169 U.S. 432, 459-60, 18 S.Ct. 403, 413, 42 L.Ed. 807, 817 (1898). The Court in that case said:

“It is a doctrine of law too long established to require a citation of authorities that, where a court has jurisdiction, it has a right to decide every question which occurs in the cause, and, whether its decision be correct or otherwise, its judgment, till reversed, is regarded as binding in every other court; and that, where the jurisdiction of a court and the right of a plaintiff to prosecute his suit in it have once attached, that right cannot be arrested or taken away by proceedings in another court.”

Id. (emphasis added) (quoting Peck v. Jenness, 48 U.S. (7 How.) 612, 624, 12 L.Ed. 841, 846). Central National must be distinguished. The above quote relied on by Cascade was dictum. The Court in that case actually held a judgment of the federal circuit court could not subsequently be ignored by a New York court. In the present case, there was no judgment in the Iowa court when the Illinois court entered its judgment.

A court may defer to the courts of another state where there is a pending proceeding involving the same subject matter and parties; however, there is no duty to do so until final judgment is entered in the other state. This so-called rule of priority is a matter of comity and does not divest a court of jurisdiction.

The rule of priority does not apply, as a matter of duty, between courts of different states. As a matter of comity, however, a court of one state may stay a proceeding pending before it on the ground that a case involving the same subject matter and the same parties is pending in the court of another state. Also, in view of the full faith and credit clause of the Federal Constitution, once the proceeding on the case has been finally adjudicated by the court of a sister state, res judicata effect must be given to it by the court of the forum state.

20 Am.Jur.2d Courts § 95, at 399 (1995) (footnotes omitted); accord Restatement (Second) of Conflict of Laws § 86 (1969). Here, Cascade did not request the Illinois court to stay those proceedings, and if it had, the court would not have been required to grant it. In an analogous case, a party claimed Iowa should have abated an action before the district court, as a matter of comity, until a Texas action had been tried to conclusion. We said:

In support of this contention [that Iowa should abate in favor of Texas] [the appellant] relies on a practice employed by some federal courts that the court in which an action is first filed is the appropriate court to determine whether subsequently filed cases involving substantially similar issues should proceed.... [Federal cases suggest the first-to-file rule] is a rule of comity to be applied between two courts of the same sovereignty. See Compagnie des Bauxites de Guinea v. Ins. Co. of N. Am., 651 F.2d 877, 887 (3d Cir.1981) (first-to-file rule was never meant to apply when the two courts involved were not courts of the same sovereignty).... [W]e are convinced that comity did not require the Iowa court to defer to the Texas court.

EFCO Corp. v. Norman Highway Constructors, Inc., 606 N.W.2d 297, 300 (Iowa 2000) (citation omitted); see also Morris v. Morris, 197 N.W.2d 357, 359 (Iowa 1972) (“Full faith and credit must, of course, be accorded a valid judgment entered by any sister state. It is evident, however, the foregoing constitutional mandate applies to final judgments alone.” (Citation omitted.)).

Because Cascade did not establish, or even claim, that the Illinois court lacked personal jurisdiction and did not establish any other ground on which to deny full faith and credit to the Illinois judgment, the district court should be affirmed.

AFFIRMED.

All justices concur except CADY, J., who takes no part.


text:
    PANDA ENGINEERING, Appellant, v. ENGINEERING AND LAND SURVEYING EXAMINING BOARD of the State of Iowa, Appellee.
    No. 99-0448.
    Supreme Court of Iowa.
    Jan. 18, 2001.

      Hugh M. Field of Beecher, Field, Walker, Morris, Hoffman & Johnson, P.C., for appellant.
    Thomas J. Miller, Attorney General, and Pamela D. Griebel, Assistant Attorney General, for appellee.
   LARSON, Justice.

The Iowa Engineering and Land Surveying Examining Board (board) found PanDa Engineering to be engaged in the unlicensed practice of engineering in violation of Iowa Code section 542B.27(l)(a) (1997). The district court affirmed that decision on judicial review, and PanDa appealed. We affirm.

I. Facts and Prior Proceedings.

PanDa Engineering, a corporation whose only employee is Larry Dettmer, is in the business of designing “fixtures” used by manufacturers. (Fixtures hold parts firmly in place with proper clearances, so operations such as welding or drilling can be performed on the parts.) Dettmer. graduated from high school, where he received training in vocational shop, science, and mathematics. He completed a four-year, ten-thousand-hour tool and die apprenticeship and later attended college for three years. In college he majored in engineering design but did not get a degree. He worked for an engineering company .and then began to work for John Deere in 1977. After ten years with John Deere, Dettmer founded his own company, now named PanDa Engineering. Rather than constructing the fixtures itself, PanDa acts as a design consultant, using information obtained from its clients who then, using the plans and specifications from PanDa, actually build the fixtures.

The board charged PanDa with the unlicensed practice of engineering. After a contested-case hearing, the board determined PanDa performed professional engineering services for the public within the meaning of Iowa Code section 542B.2(8). PanDa petitioned for judicial review, and the district court affirmed.

II. Disposition.

On an appeal from a judgment entered on judicial review of agency action, our review is for correction of errors at law. Gaffney v. Dep’t of Employment Servs., 540 N.W.2d 430, 433 (Iowa 1995). If the agency’s findings of fact are supported by substantial evidence, those findings are binding on judicial review. Iowa Code § 17A.19(8)(f); City of Hampton v. Iowa Civil Rights Comm’n, 554 N.W.2d 532, 536 (Iowa 1996). We accord only limited deference to the agency’s interpretation of law, including statutory and agency rule interpretations, but we will give careful consideration to an agency’s determination of a question of law in areas of the agency’s expertise. Staceyville Cmty. Nursing Home v. Dep’t of Inspections & Appeals, 528 N.W.2d 557, 559 (Iowa 1995).

The issue is whether the evidence in this record supports the board’s finding that PanDa had been involved in the “practice of engineering.” The statutory definition of that term was expanded considerably in 1995. It now provides in part:

“Practice of engineering” as used in this chapter means any service or creative work, the adequate performance of which requires engineering education, training, and experience in the application of special knowledge of the mathematical, physical, and engineering sciences, such as consultation, investigation, evaluation, planning, design and design coordination of engineering works and systems, planning the use of land and water, performing engineering surveys and studies, and the review of construction for the purpose of monitoring compliance with drawings and specifications, any of which embraces such services or creative work, either public or private, in connection with any utilities, structures, buildings, machines, equipment, processes, work systems, projects, and industrial or consumer products or equipment of a mechanical, electrical, hydraulic, pneumatic, or thermal nature, insofar as they involve safeguarding life, health, or property, and including such other professional services as may be necessary to the planning, progress, and completion of the services identified in this paragraph.

Iowa Code § 542B.2(8).

The statute further provides:

A person is construed to be engaged in the practice of engineering if the person does any of the following:
a. Practices any branch of the profession of engineering.
b. Makes a representation by verbal claim, sign, advertisement, letterhead, card, or other manner that the person is a professional engineer.
c. Uses any title which implies that the person is a professional engineer or that the person is certified under this chapter.
d. The person holds the person’s self out as able to perform, or who does perform, any service or work included in the practice of engineering.

Id.

The board made extensive findings of fact, concluding PanDa was practicing engineering under the statute and was therefore required to be licensed. The board noted PanDa used the word “engineering” in its name, and under Iowa Code section 542B.2(8), this implies it is involved in the practice of engineering. The board heard testimony from two experts. One expert, Mark Iverson, is a licensed industrial engineer with seventeen years experience. The board summarized his testimony:

In the opinion of Mr. Iverson, Mr. Dettmer is performing engineering work. Adequate fixture design requires special knowledge of mathematics, stresses, and the materials being used. Mr. Dettmer uses algebra, geometry, trigonometry and physics in the design of the fixtures, but is unable to perform more advanced calculations, such as finite element analysis. Mr. Dettmer essentially testified that he makes up for his lack of ability to do precise calculations by over designing the fixtures. However, even though over design is feasible with custom fixtures, Mr. Dett-mer still must use basic engineering knowledge and experience to determine what is minimally required for each fixture. In the opinion of Mr. Iverson, this is the practice of engineering. Failure to properly design a fixture can result in property damage to the part being fabricated or to the machine being used. There is also a low probability that the person operating the machinery containing the fixture could be injured.

A second expert, Dr. Jerry Lee Hall, testified for PanDa. Dr. Hall is a professor emeritus in the department of mechanical engineering at Iowa State University. He testified that PanDa does not “generally” do engineering work; persons who design fixtures are usually technicians with technical degrees who have been trained by apprenticeship and work experience. He testified that, because the statutory definition of engineering is so broad, Dettmer could at times be involved in work that falls under that definition.

The board concluded Dettmer violated chapter 542B because his work met the broad definition of Iowa Code section 542B.2(8). The board concluded

the custom fixture design services performed by [PanDa] and offered to the public is creative work which requires engineering education, training, and experience in the application of special knowledge of the mathematical, physical, and engineering sciences. This type of fixture design involves the safeguarding of health and property, since inadequate fixture design can result in damage to the part being fabricated, and, in rare cases, injury to the person operating the machine.

The reasons for the legislature’s expansion of the scope of engineering under its 1995 amendment have not been explained. However, the scope of the statute is a matter of public policy and therefore within the province of the legislature. Our only responsibility is to determine if the board’s conclusions are supported by substantial evidence, and we conclude they are.

PanDa also argues that section 542B.2(8), defining the practice of engineering, is so broad and prolix that it “is incomprehensible to read and it is sufficiently vague that it is impossible for a person to determine what in Iowa constitutes engineering.... ” The statute, according to PanDa, is void for vagueness and therefore unconstitutional.

We do not address the constitutional argument because PanDa did not raise the issue before the board and has therefore waived it. See Fisher v. Iowa Bd. of Optometry Exam’rs, 478 N.W.2d 609, 612 (Iowa 1991).

AFFIRMED.