Linda Agan v. Tammy Krambeck ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-1377
Filed December 5, 2018
LINDA AGAN,
Plaintiff-Appellee,
vs.
TAMMY KRAMBECK,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Odell G. McGhee II,
District Associate Judge.
A tenant appeals the denial of her motion to set aside the default judgment
evicting her from the home she rented. REVERSED AND REMANDED FOR
DISMISSAL.
Andrea Hiatt Buckley of Iowa Legal Aid, Sioux City, for appellant.
Christopher R. Kemp of Kemp & Sease, Des Moines, for appellee.
Thomas J. Miller, Attorney General, and Benjamin E. Bellus and Jessica
Whitney, Assistant Attorneys General, for amicus curiae Iowa Attorney General.
Rita Bettis of ACLU of Iowa Foundation, Des Moines, Clarissa Flege of Iowa
Coalition Against Domestic Violence, Urbandale, and Sandra Shin-Young Park
and Lenora M. Lapidus of ACLU Women’s Rights Project, New York, New York,
for amici curiae American Civil Liberties Union of Iowa, Iowa Coalition Against
2
Domestic Violence, American Civil Liberties Union, National Housing Law Project,
National Law Center on Homelessness and Poverty, National Network to End
Domestic Violence, and Sargent Shriver National Center on Poverty Law.
Heard by Danilson, C.J., and Potterfield and Doyle, JJ.
3
POTTERFIELD, Judge.
Tammy Krambeck appeals from the default judgement entered by the small
claims court evicting her from the home she rented from Linda Agan for more than
three years. Tammy maintains the small claims court had jurisdiction to set aside
the default judgment and she had good cause for the judgment to be set aside.
Alternatively, she argues the district court should have set aside the judgment
entered by the small claims court because the small claims court never had
jurisdiction to enter the default in the first place, as the forcible entry and detainer
notice was facially defective—it did not provide the required language about her
right-to-cure the alleged clear and present danger—and in violation of her right to
summon emergency assistance, found in Iowa Code section 562A.27B (2017).
I. Background Facts and Proceedings.
On June 29, 2017, Agan sent her tenants, Tammy and Greg Krambeck,1 a
three-day notice to quit the residence. On it, Agan wrote “clear and present
canger.” She also included a handwritten narrative, which was dated the day
before and stated:
Tammy screaming from inside the trailer that Greg has
bruised her, he beat me, call the police. The police were contacted
and she declined to show evidence of abuse. This occurrence is
very frequent with Greg chasing Tammy outside. The
neighbors/tenants are exposed to the domestic assault daily.
Children reside in the mobile home park and should not be exposed
to this exchange & physical violence.
The same day, Agan sent by certified mail a second notice, titled “3 day termination
notice to tenant,” with Agan again adding a handwritten note, stating, “clear and
1
Tammy’s husband, Greg, also lived in the home and was a party to the underlying
proceedings brought by Agan.
4
present danger.” It advised the Krambecks that Agan “inten[ded] to terminate
[their] tenancy” on July 6.
On July 14, Agan filed an original notice and petition for forcible entry and
detainer (FED). In filling out the form, Agan stated she was demanding possession
of the rental home, as “[t]he defendants have been advised that I am terminating
tenancy as they are causing clear and present danger by exposing our other
mobile home tenants to the screaming, yelling and physical abuse that they
display. The police have been there many times.”
The matter was set for hearing in small claims court, but neither Tammy nor
Greg appeared. On July 24, the court entered a default judgment against the
Krambecks and issued a writ of removal and possession, formally evicting them
from their home.
On July 27, Tammy2 filed a motion to set aside the default judgment,
pursuant to Iowa Code section 631.12. She alleged neither she nor Greg attended
the hearing on the FED action because of her medical condition and claimed she
had a number of defenses and counterclaims to Agan’s motion, including “lack of
proper notice as the clear and present danger notice does not set forth the statutory
cure language.” (Altered for readability.) In an affidavit attached to her motion,
Tammy swore she “was not able to make it to the hearing because of [her] medical
condition. [She] was having seizures before the hearing and [her] husband needed
to stay with [her] while they were occurring.” She further certified she was
2
Only Tammy filed a motion to set aside the default judgment.
5
diagnosed with epilepsy when she was twelve years old and was seen by a local
neurologist.
Tammy’s motion was set for hearing, and the parties were advised that if it
was granted, they should “be prepared to proceed immediately to a trial on [the]
merits.” The writ of removal was stayed pending the hearing.
The hearing took place on July 31, and the small claims court ruled from the
bench at the conclusion of the hearing. The court, relying upon Iowa Code section
648.5 and Merryman v. Merryman, No. 04-0173, 2005 WL 974688, at *5–6 (Iowa
Ct. App. Apr. 28, 2005),3 determined it did not have jurisdiction to consider the
motion to set aside the default judgment, as more than fifteen days had passed
since Agan filed her FED action.
Tammy appealed the ruling of the small claims court to the district court.
She challenged the small claims court’s ruling it did not have jurisdiction to hear
the motion to set aside the judgment and argued the three-day termination notice
she received from Agan was improper because it failed to include necessary
statutory language, thereby preventing the small claims court from entering default
judgment against her. Additionally, she maintained the three-day notice was
facially invalid as it violated her statutory right to summon emergency assistance,
as codified in Iowa Code section 562A.27B. Finally, she asked the court to
schedule a fact-finding hearing.
3
Merryman involved the setting of the initial hearing on an FED, not the hearing on an
application to set aside default judgment, which is governed generally by Iowa Rule of
Civil Procedure 1.977.
6
The writ of removal continued to be stayed pending the district court
hearing. The court, in setting a hearing, noted that no new evidence was
admissible on appeal and advised it would only consider the evidence previously
presented.
Following a hearing,4 the district court denied Tammy’s motion. The court
ruled the small claims court’s determination it did not have jurisdiction to hear the
motion to set aside judgment “is a proper and fair interpretation of the related law.”
Additionally, the court found that Tammy had not “allege[d] sufficient grounds by a
preponderance of the evidence to overturn the default judgment and findings of
the small claims court; [her] conduct amounted to lack of care, attention, and
approached gross neglect or willful procrastination.” In reaching this conclusion,
the court incorrectly stated that Tammy’s motion to set aside referenced an
affidavit that had not been filed. Tammy’s affidavit was filed the same day as the
motion and is included in the record before us. In ruling on Tammy’s claim that the
FED notice was facially deficient, as it did not contain any of the right-to-cure
language provided in section 562A.27A, the court stated:
[Tammy] argue[s] that since [Agan] did not include the
required cure language on either three-day notice filed with the court,
the small claims court did not have jurisdiction to hear this case and
it should have been dismissed. This court disagrees. The court finds
that [Agan] reported the abuse to police, but [Tammy] refused the
help of law enforcement by not certifying that abuse was occurring.
There is little or no evidence that Defendant Tammy Krambeck did
anything to make law enforcement aware of what was happening. In
fact, she seemed unwilling to work with law enforcement when they
were summoned. . . .
4
It appears the district court hearing was unreported.
7
The court appeared to base this final statement on the unverified statements of
Agan that were made in the various court filings. Finally, in a possible reference
to Tammy’s argument regarding the FED notice’s violation of the right-to-
assistance, codified in section 562A.27B, the court ruled, “[T]he three-day notice
is not so defective it violates public policy.” See Iowa Code § 562A.27B(1)(d) (“Any
waiver of the provisions of this subsection is contrary to public policy and is void,
unenforceable, and of no force or effect.”).
Tammy appeals.
II. Standard of Review.
“A forcible entry and detainer action is tried in equity. Our review of equity
cases is de novo. However, even in equity our review of the construction of
statutes is at law.” Rowan v. Everhard, 554 N.W.2d 548, 549 (Iowa 1996) (citations
omitted).
III. Discussion.
Tammy maintains the small claims court had jurisdiction to set aside the
default judgment and she had good cause for the judgment to be set aside.
Alternatively, she argues the district court should have set aside the judgment
entered by the small claims court because the small claims court never had
jurisdiction to enter the default in the first place, as the FED notice was facially
defective—it did not provide right-to-cure language—and in violation of her right to
summon emergency assistance, found in Iowa Code section 562A.27B.
We begin with Tammy’s argument that the small claims court did not have
jurisdiction to enter the initial default judgment because the FED notice was invalid
8
on its face as it (1) lacked the statutorily required language regarding her right-to-
cure the alleged clear and present danger, pursuant to section 562A.27A and (2)
violated her right to assistance, pursuant to section 562A.27B.
Tammy did not make these arguments to the small claims court, as she was
never able to proceed on the merits of her claim. But she did raise them before
the district court, which is proper. See Rowan, 554 N.W.2d at 550 (reversing
district court decision dismissing tenants’ appeal of default judgment in an FED
action based on belief it could “not consider issues which were never controverted
or considered in the original small claims proceeding” and ruling, “Although the
default judgment precludes these defendants from arguing issues of fact on the
appeal, they should be permitted to argue issues of law concerning the sufficiency
of the various notices and the timing of the hearing”).
Moreover, as issues involving whether the court had jurisdiction to act, they
may be raised at any time. See, e.g., Lloyd v. State, 251 N.W.2d 551, 556–57
(Iowa 1977) (“[T]he question of lack of subject matter jurisdiction can be raised in
any manner at any stage of the proceedings . . . .”).
Iowa Code section 562A.27A(1) provides, in part:
[I]f a tenant has created or maintained a threat constituting a clear
and present danger to the health or safety of other tenants, . . . the
landlord, after the service of a single three days’ written notice of
termination and notice to quit stating the specific activity causing the
clear and present danger, and setting forth the language of
subsection 3 which includes certain exemption provisions available
to the tenant, may file suit against the tenant for recovery of
possession of the premises . . . .
(Emphasis added.) Subsection (3) limits the application of the code provision,
making it inapplicable “to a tenant if the activities causing the clear and present
9
danger . . . are conducted by a person on the premises other than the tenant and
the tenant takes at least one of the following measures”:
(1) The tenant seeks a protective order, restraining order,
order to vacate the homestead, or other similar relief pursuant to
chapter 235F, 236, 598, 664A, or 915, or any other applicable
provision which would apply to the person conducting the activities
causing the clear and present danger.
(2) The tenant reports the activities causing the clear and
present danger to a law enforcement agency or the county attorney
in an effort to initiate a criminal action against the person conducting
the activities.
(3) The tenant writes a letter to the person conducting the
activities causing the clear and present danger, telling the person not
to return to the premises and that a return to the premises may result
in a trespass or other action against the person, and the tenant sends
a copy of the letter to a law enforcement agency whose jurisdiction
includes the premises. If the tenant has previously written a letter to
the person as provided in this subparagraph, without taking an action
specified in subparagraph (1) or (2) or filing a trespass or other
action, and the person to whom the letter was sent conducts further
activities causing a clear and present danger, the tenant must take
one of the actions specified in subparagraph (1) or (2) to be exempt
from proceedings pursuant to subsection 1
Iowa Code § 562A.27A(3)(a)(1)-(3).
The district court denied Tammy’s challenge to the notice, ruling that the
small claims court had jurisdiction to hear the FED action because “Tammy
Krambeck refused the help of law enforcement by not certifying that abuse was
occurring. There is little or no evidence that Defendant Tammy Krambeck did
anything to make law enforcement aware of what was happening.” But whether
Tammy took the actions outlined in subsection (3) to cure the alleged clear and
present danger and whether she was advised of having the right to do so are two
separate questions.
10
The plain language of section 562A.27A(1) provides that only after the
landlord provides the tenant with “three days’ written notice of termination and
notice to quit” that sets “forth the language of subsection 3 which includes certain
exemption provisions available,” the landlord may file their FED action. In other
cases involving FED actions, our supreme court has held that failure to give proper
notice deprives the court of jurisdiction to hear the action. In Symonds v. Green,
493 N.W.2d 801, 803 (Iowa 1992), our supreme court stated:
We hold that written notice to cure in compliance with section
562A.27(2) is a condition precedent to the landlord’s termination of a
rental agreement in the case of a residential lease. Because [the
landlord] failed to notify [the tenant] of her right to cure the
nonpayment of rent prior to termination of the rental agreement, the
trial court lacked jurisdiction to hear [the landlord’s] forcible entry and
detainer action.
See also Liberty Manor v. Rinnels, 487 N.W.2d 324, 326 (Iowa 1992) (ruling the
landlord was required to give the notice specified in the applicable section and
“[f]ailure to do so deprives the trial court of jurisdiction to hear a forcible entry and
detainer action to recover possession of the leased property”); cf. Hunter v. City of
Des Moines Mun. Hous. Auth., 742 N.W.2d 578, 590 (Iowa 2007) (considering
whether the failure to include right-to-cure language deprived the court of
jurisdiction and recognizing that “[g]enerally, a defect in the notice requirements
under section 562A.27(1) ‘deprives the trial court of jurisdiction to hear a forcible
entry and detainer action to recover possession of the leased property’” before
determining that the notice requirements do not apply when the notice to quit is
given at the end of the term of tenancy).
11
While we have not found any authority discussing the necessity of the right-
to-cure language regarding clear and present dangers in section 562A.27A, we
can think of no reason why we should treat the failure to include the notice
differently than other right-to-cure language in other FED actions.
Agan offers a slightly different argument, maintaining that the right-to-cure
language could not apply to Krambeck, as it only applies to tenants when the clear
and present danger is an activity taken by someone other than the tenant. See
Iowa Code § 562A.27A(3)(a). In support of this argument, Agan relies upon her
own FED petition, in which she alleged, “The defendants have been advised that I
am terminating tenancy as they are causing clear and present danger by exposing
our other mobile home tenants to the screaming, yelling and physical abuse that
they display.” (Emphasis added.) She maintains that this fact makes it
unnecessary for her to provide the right-to-cure language as part of the three-day
notice.
But again, the question of whether Tammy would have been able to or
would have chosen to cure the alleged clear and present danger and whether she
had the right to be advised of the possibility are separate questions. We cannot
say if Tammy would have been able to cure, as there was no fact-finding hearing
during these proceedings. We will not rely on Agan’s untested allegations to
determine facts. Moreover, for a similar reason, the statute requires that all written
notices of termination and notices to quit provide the right-to-cure language; the
statute does not allow the individual landlord to make the determination whether
their tenant is able to cure.
12
Because the notice provided to Tammy failed to include the necessary right-
to-cure language, the small claims court lacked jurisdiction to decide the FED
action and enter the default judgment. We reverse the district court and remand
for dismissal of the underlying action. As this issue is dispositive, we do not
consider Tammy’s other arguments.
REVERSED AND REMANDED FOR DISMISSAL.