Steven J. Bell, Jr. v. 3E, a/k/a Electrical & Engineering Co., and Travelers Indemnity Co. of CT. ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0310
Filed September 11, 2019
STEVEN J. BELL, JR.,
Petitioner-Appellee,
vs.
3E, a/k/a ELECTRICAL & ENGINEERING CO.,
and TRAVELERS INDEMNITY CO. OF CT.,
Respondents-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.
Respondents appeal the district court’s decision denying their motion to
dismiss petitioner’s petition for judicial review on the ground he failed to timely
serve notice of the petition. REVERSED AND REMANDED.
James M. Ballard of Ballard Law Firm, PLLC, Waukee, for appellants.
Mark S. Soldat of Soldat & Parrish-Sam, PLC, West Des Moines, for
appellee.
Considered by Potterfield, P.J., Greer, J., and Carr, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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CARR, Senior Judge.
3E, also known as Electrical & Engineering Company, and Travelers
Indemnity Company (together referred to as respondents) appeal the district
court’s decision denying their motion to dismiss Steven Bell Jr.’s petition for judicial
review on the ground Bell failed to timely serve notice of the petition. We determine
the district court erred by denying the motion to dismiss, as Bell did not
substantially comply with the requirements for service of notice found in Iowa Code
section 17A.19(2) (2018). We reverse the decision of the district court and remand
for an order dismissing the petition for judicial review.
I. Background Facts & Proceedings
On May 22, 2018, Bell filed a petition for judicial review of a decision of the
workers’ compensation commissioner. The petition stated it was served
electronically by means of the Electronic Document Management System (EDMS)
to the attorney for respondents, James Ballard of the Ballard Law Firm, P.L.L.C.
On its own initiative, the district court issued an order on August 22, stating
there was no evidence in the record to show Bell served the respondents notice
as required by Iowa Rule of Civil Procedure 1.302(5). The court ordered Bell to
file a return of service or other document showing service on the respondents
within fourteen days. In the alternative, the court informed Bell he could file a
motion for good cause to timely serve notice and request an extension of time.
The court informed Bell it would dismiss the case if he failed to comply with these
requirements.
On August 27, Bell moved to extend the time for service of the judicial
review petition. He attached an affidavit from his attorney’s legal assistant, who
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stated she was unaware of the need to mail a copy of the judicial review petition in
addition to electronically serving notice. Bell also attached a copy of a certified
mail receipt showing he sent notice to the Ballard Law Firm on August 24. The
respondents resisted the motion and requested dismissal. The district court
granted the motion to extend time, stating, “The court does not condone the delay
in service present here. However, under this record the delay in service will not
prejudice 3E.”
During oral argument on the merits of Bell’s petition for judicial review, the
respondents again moved to dismiss the petition based on Bell’s failure to serve
timely notice. Bell resisted. The district court denied motion, and the respondents
now appeal.
II. Service of Notice
The respondents claim the district court should have granted their motion
to dismiss on the ground Bell’s petition for judicial review did not substantially
comply with the service requirements found in section 17A.19(2). The respondents
assert the court was without jurisdiction to consider Bell’s petition for judicial review
because he did not timely mail notice of the petition. This case involves the district
court’s ruling on a motion to dismiss, and our review is for the correction of errors
at law. Ortiz v. Loyd Roling Constr., 928 N.W.2d 651, 653 (Iowa 2019).
Section 17A.19 provides “the exclusive means by which a person or party
who is aggrieved or adversely affected by agency action may seek judicial review
of such agency action.”1 Section 17A.19(2) provides:
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The district court first analyzed whether service complied with rule 1.302(5). We
determine this rule does not apply because section 17A.19 provides the exclusive means
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Within ten days after the filing of a petition for judicial review the
petitioner shall serve by the means provided in the Iowa rules of civil
procedure for the personal service of an original notice, or shall mail
copies of the petition to all parties named in the petition and, if the
petition involves review of agency action in a contested case, all
parties of record in that case before the agency. Such personal
service or mailing shall be jurisdictional. The delivery by personal
service or mailing referred to in this subsection may be made upon
the party’s attorney of record in the proceeding before the agency.
A mailing shall be addressed to the parties or their attorney of record
at their last known mailing address. Proof of mailing shall be by
affidavit.
The mailing requirements of section 17A.19(2) are “mandatory and
jurisdictional.” Cunningham v. Iowa Dep’t of Job Serv., 319 N.W.2d 202, 204 (Iowa
1982). “Thus, a failure to comply with them deprives the district court of appellate
jurisdiction over the case.” Brown v. John Deere Waterloo Tractor Works, 423
N.W.2d 193, 194 (Iowa 1988). The issue of subject matter jurisdiction may be
raised at any time. Cooksey v. Cargill Meat Solutions Corp., 831 N.W.2d 94, 97
(Iowa 2013).
Section 17A.19(2) “should not be construed to make all errors or omissions
in service jurisdictional.” Frost v. S. S. Kresge Co., 299 N.W.2d 646, 648 (Iowa
1980). The Iowa Supreme Court has “consistently held that substantial—not
literal—compliance with section 17A.19(2) is all that is necessary to invoke the
jurisdiction of the district court.” Brown, 423 N.W.2d at 194. “[T]he [substantial
compliance] doctrine permits leeway in meeting the requirements of the statute
when the facts and circumstances indicate the purpose and meaning of the statute
have been met.” Ortiz, 928 N.W.2d at 654. “The purpose of the statute is to make
for service of petitions for judicial review of an agency decision. See Sierra Club Iowa
Chapter v. Iowa Dep’t of Transp., 832 N.W.2d 636, 642 (Iowa 2013) (“The provisions in
chapter 17A.19 are ‘the exclusive means’ by which a party may seek judicial review.”).
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judicial review simple and accessible by providing for an efficient and effective
process.” Id. However, a party’s failure to substantially comply with the
requirements of section 17A.19(2) “precludes the district court from acquiring
jurisdiction of the case.” Buchholtz v. Iowa Dep’t of Pub. Instruction, 315 N.W.2d
789, 791–92 (Iowa 1982).
Under Iowa Rule of Electronic Procedure 16.314(3), “[o]riginal notices must
be served upon the party against whom an action is brought in accordance with
the Iowa Code and the Iowa Rules of Civil Procedure.” “Electronic service cannot
be used to serve an original notice or any other document that is used to confer
personal jurisdiction.” Iowa R. Elec. P. 16.314(3) cmt. The notice sent via EDMS
at the time the petition was filed did not substantially comply with the notice
requirements of section 17A.19(2) because rule 16.314(3) prohibits service of
original notice by means of EDMS.
In Ortiz, the Iowa Supreme Court determined service of notice by email
substantially complied with the notice provisions of section 17A.19. 928 N.W.2d
at 655. While Ortiz addressed changes in communication (mailing) due to
technology and the substantial compliance doctrine, such doctrine “cannot be
applied to change the jurisdictional requirement.” Id. at 653–54. Accordingly, the
Ortiz analysis is not instructive here because jurisdiction is conferred only by a
mailing or by personal service and neither was accomplished by simply filing the
petition through the EDMS system. We conclude Bell did not serve the
respondents with notice of the petition for judicial review within ten days, as
mandated by section 17A.19(2).
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We turn then to the issue of whether Bell substantially complied with the
notice provision of section 17A.19(2) by mailing notice on August 24, more than
two months after the petition was filed on May 22.2 A slight delay in service of
notice may be considered to be in substantial compliance with the statute,
depending on the facts of the case. See Monson v. Iowa Civil Rights Comm’n,
467 N.W.2d 230, 232 (Iowa 1991) (“The sheriff’s mistake cannot fairly be attributed
to [the petitioner], and the [agency] has established no prejudice flowing from the
brief delay.”).
Generally, for there to be substantial compliance, “the petitioner has made
some attempt to comply with section 17A.19(2).” Birchansky v. Iowa Dep’t of Pub.
Health, No. 12-1827, 2013 WL 3830196, at *4 (Iowa Ct. App. July 24, 2013); see
also Van Baale, 2007 WL 252774, at *2 (noting there had not been substantial
compliance with the statute because petitioner did not attempt to serve notice
within the ten-day period after filing a petition for judicial review).
Bell did not adequately attempt to mail notice within the ten-day period. His
attempt to send notice via EDMS did not substantially comply with the
requirements of section 17A.19(2) because service of original notice by means of
EDMS is prohibited by rule 16.314(3). We find Bell did not substantially comply
with the notice requirement of section 17A.19(2) and this deprived the district court
of jurisdiction to consider the petition for judicial review. See Brown, 423 N.W.2d
2In considering whether the district court properly granted Bell an extension of time to
serve notice, we note section 17A.19 does not provide for an extension of time based on
good cause or any other factor. See Van Baale v. Emp’t Appeal Bd., No. 06-0657, 2007
WL 252774, at *2 (Iowa Ct. App. Jan. 31, 2007) (“We have found no cases which excuse
untimely service under section 17A.19(2) based on good cause or extenuating
circumstances.”).
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at 194 (noting the failure to comply with the mailing requirements of section
17A.19(2) “deprives the district court of appellate jurisdiction over the case”).
We conclude the district court erred by denying the motion to dismiss. We
reverse the decision of the district court and remand for an order dismissing the
petition for judicial review.
REVERSED AND REMANDED.