Pfiffner v. Roth
379 N.W.2d 357
Iowa
1985
Check Treatment

*1 PFIFFNER, Appellee, Theodore A. ROTH, City

Arthur J. Director as of the Department, City Dubuque,

Health of

Iowa; Frommelt, Leo J. as Past License 18-16,

Officer under Section Ordi Iowa, City Dubuque, of the

nances City

and as Past Du Clerk Iowa;

buque, Davis, Mary A. as License 18-16,

Officer Section Ordi Iowa, City Dubuque,

nances of the City City as Clerk of the of Du

buque, Iowa; Gearhart, City Ken

Manager City Iowa, Dubuque, Iowa, Dubuque, a Munici

pal Corporation, Appellants.

No. 85-105. Court Iowa. 18, 1985.

Dec.

358 Carew,

William Fuerste and Allan J. C. Fuerste, Carew, Juergens Coyle, & Sud- meier, P.C., Dubuque, appellee. REYNOLDSON, C.J., Considered and McCORMICK, McGIVERIN, LARSON, SCHULTZ, and JJ.

LARSON, Justice. appeal,

In an earlier we held that Law, chapter Iowa city Dubuque, was violated officials, and various when dis- couraged operation of an ambulance competition city’s. business with We remanded the case for assessment of dam- ages. Roth, Neyens v. 326 N.W.2d 294 (Iowa 1982). appeal, After the first two original plaintiffs assigned their inter- Pfiffner, present plaintiff, ests to the who pursued through damage the case stage. judgment appeal is from a awarding damages, punitive Pfiffner actual damages, attorneys fees. We affirm. (1) appeal The issues raised on are: chapter whether a 1984 amendment to establishing exemption city, an for a is (2) applicable; the trial im- whether court (3) computed damages; properly actual awarding puni- whether the court erred in (4) damages; and tive whether court (Xhe attorneys erred its award of fees. defendants, including and various officers, collectively will be referred to opinion city.) as the I. Amendment. considering In effect law, competition exempt- amendment to the cities, ing opinion a look at our earlier is there, necessary. impact noted city, on a turned on two First, “person” issues: is whether meaning under the of the act. We held it was, language: ‘per- because of this “[A] estate, trust, person, son’ means a natural enterprise or government Iowa agency.” 553.3(4) added). (1979) (emphasis Code § A Neyens, 326 N.W.2d at 297. See Lindahl, turn, Barry Dubuque, appel- “government agency,” in is defined A. state, subdivisions, political as “the lants. agency supported in or in public anticompetitive whole actions for which-munici- part by pal liability sought. taxation.” Nor those can Neyens, truly at 297. actions “compre- See described as powers hended within the granted,” question also considered term, “granted,” since necessarily city’s regulation whether the of the ambu- *3 implies addressing an affirmative by lance business was covered Code Iowa subject the by State. 553.6(4), exempted section which from cov- 55, 843, 455 102 U.S. at S.Ct. at 70 L.Ed.2d erage of the Iowa Law “[t]he at 821 in (emphasis original). arrangements ap- expressly activities or reasons, regulated proved by any regulatory For these we held that the ex- emption 553.6(4), acting authority provided of section body.or officer of state, apply the not did to the in this or of the The state United States.” Neyens, case. 326 N.W.2d at 299. Dubuque argued, city of that Neyens, exempted were not specifically while cities decided, legisla- After was the 553.6(4), by city’s the here section actions chapter ture amended by adding 553 a new reg- exempt, were nevertheless its because 553.6(5), subparagraph, exempt section to ulation of ambulance services was “under acting activities of a ... when “[t]he authority” of the state. 326 N.W.2d at statutory within its or constitutional home argument 298. on the was based powers and rule to the that same extent provided “home rule amendment” which prohibited the activities would not if be granted “[mjunicipal corporations that are by undertaken the state.” See 1984 Iowa power authority, (At time, home rule and not incon- 1020, Acts eh. the the same § the legislature sistent with laws of the General Assem- also amended to 553 affairs, bly, punitive damages against city. to determine their local and eliminate a Const, later.) That government_” Iowa 2 matter will be discussed amend. (1968). Does the amendment to section af- 553.6 city Dubuque says fect this ease? The

In it Neyens, held this constitutional First, argues, does. it has al- grant statute power city’s did not make the ways coverage, cities from its action; excluded regulation ambulance a state it merely the 1984 amendment clarified only position neutrality amounted to a matter, thereby “correcting” interpre- part of the on the state. We that the noted given by tation to statute this court Supreme recently Court had held that Alternatively, Neyens. argues it action,” “state under the federal anti-trust given retrospective amendment should be act, predicated could not be on inaction effect, if it amounts to We even new law. immunity, To the state. be clothed with arguments. reject both monopoly must be a articu “clearly affirmatively expressed policy” lated and First, we think the amendment Neyens, of the state. 326 at 299 merely clarify prior did more than law. (quoting Community Communications observation, general change As a such as Boulder, 54, 102 40, 455 U.S. Co. this, provided exemption which for an (1982)). 70 L.Ed.2d S.Ct. before, to where none existed would have Community Court said in change. be a substantive In considered Communications, interpreting an amendment to a stat such requirement articu- plainly the ute, “clear presumption change in there is a expression” lation and affirmative is not Sutherland, legal rights. 1A Statutes position when the is one 22.30, satisfied State’s Statutory at Construction § neutrality respecting (Sands 1985). of mere munic- If in its 4th ed. the statute ipal challenged anticompeti- original subject actions had form been to doubts municipali- meaning, argument A State that allows it tive. about its that please hardly would, they perhaps, ties do as can be was a mere clarification Sutherland, “contemplated” specific supra, 2A said to have more tenable. See exemplary damages. 553.- 49.11, no such at 414 There was § § 12(3) (1979). exception was It made no in this case. Section doubt clear; covered the state- cities were not cities. exemption.

action argues court erred in the district assuming the 1984 amend Even damages against it awarding punitive be- law, the issue remains ment created new against not allowable cause retrospective effect it should have whether origi- competition law as it city under the city. summarily by the We as claimed and, event, existed; nally does dispose this issue. The amendment protecting punitive cities from amendment appli say given retrospective it is not to be argues damages should control. It also presumed pro to be cation. It is therefore justify insufficient to that the evidence was More spective only. 4.5. punitive damages. an award *4 over, right recovery plaintiff had a this noted, origi- in already chapter 553 its against city under the old law but provided cities. It also nal form included Ordi have none under new one. would any excep- exemplary damages for without give retrospective effect narily, we will not for discussed the rationale tion cities. We when it has that effect. to an amendment damages against awarding punitive Community v. Linn-Mar See Vinson Moines, 262 city Young City in Des (Iowa District, N.W.2d School (Iowa 1978). The idea 620-22 41.02, 1984); Sutherland, supra, at § actor, deterring punishing oth- 247-49 ers, and is part is a of that rationale as Damages. public corporation in II. The Award Actual relevant the case any it is in other. Id. at 620-21. The court allowed actual district damages profits from the based on lost legislature capable providing is The issued, time the license should have been protection from public corporations with 26, 1982, 26, 1980, until March December so, damage awards. It did after punitive procedendo on was issued the date which respect to the claims act. Young, with tort argues Neyens city The this was case. 613A.4(5)(1985). leg- The Iowa Code See § error, period that the relevant ended when provided protection also such with islature issued, actually May the license was on law, respect competition Ney- to our after 1981. 553.- was decided. ens See § Although actually issued the license was 12(3) (1985) (exemplary damages recovera- decided, Neyens it was issued before was only person city than a or “from a other ble pursuant to a mandamus order of the dis- legal city county entity or created or court, plaintiffs trict which concluded _”). county protection No such was city entitled to under a ordinance. were it law, original competition provided by the however, victory, a hollow be- was however, and we will not read one into it. provided also cause another ordinance revoked, license could be or a renewal re- give The here asks that we fused, plaintiff The almost at will. was amendment, either under effect to the 1984 understandably in a reluctant to invest law, prior theory merely it clarified the might pulled out from business which by giving retrospective effect as a or it position him. was not solidified His reject argu these substituted law. We invalid. until held the ordinances rejected ments for the same reasons we correctly the trial court set We believe arguments I. city’s similar under Division damages. period computing for city argues the evidence The that Damages. III. The Award Punitive insufficient, event, justify to was (1979) Law, punitive damages. Section 553.12 at the The Iowa arose, provided: expressly provided case time this person injured The state or a who is or IV. Attorney Fees. injury by prohib-

threatened with conduct The challenges the district ited under this may bring suit to: court’s attorney award of fees on the

ground it included fees for services ap on peal, while the provided statute only for Recover, discretion, at the court’s recovery of necessary “the costs of bring exemplary damages which not do exceed suit, ing including a reasonable attorney twice the damages actual awarded under fee.” (emphasis subsection 2 if: added). a. The trier of fact determines that plaintiff’s lawyers prohibited conduct is involved in willful fla- litigation grant; and, years. for over five Testimo- ny by lawyers in the record established a person bringing b. The suit is not the range $95,000 $135,000. of fees from state. We believe the district court’s allowance of record, Our review of the which includes $100,000 well-supported by the evidence. evidence of delays by intentional The district court was also correct legislation stifling and its at competi- aimed allowing fees for services rendered on tion, leads us to the same conclusion as appeal. provides While statute expressed by court, that the district which such fees in “bringing connection with said: *5 suit,” appeal obtain, an believe or City Manager, Court finds that the preserve, a result in the suit is a necessary of, urging adoption City and the part of the attorney’s Attorney services. adopting, Council in the amendment to fees should be appeal recoverable an ordinance, denying and in Plaintiffs’ well as a supported trial. This view is licensure under “alternative No. 1” Perkins v. Standard Oil Co. of Califor suggested deny that the council [which nia, 222, 1989, 399 U.S. 90 S.Ct. 26 L.Ed.2d license, then wait to see what a court (1970), in which the Court would object for the stated pre- do] that, in litigation, held federal antitrust at serving revenue to the City, very torney part fees incurred as of the “cost of nature of such communications and ac- suit,” statute, under the antitrust should leading tions to such amendment and de- not be restricted to those incurred at trial. nial, were aware of and understood that Id. at 90 S.Ct. at 26 L.Ed.2d at acting preserve to create and monopoly private total in a ac- business We find no basis for reversal. tivity to the detriment of Plaintiffs. The AFFIRMED. expression in alternative hope No. of a might that a Court later find their action SCHULTZ,J., except All Justices concur appropriate to be “public under some who dissents. purpose” is not a sufficient basis for a finding that this intentional creation and SCHULTZ, (dissenting). Justice perpetuation monopoly was innocent I dissent III majori- from Division inadvertent, injurious when the conse- ty opinion. I would not allow the award of quences to the Plaintiffs would be obvi- punitive damages against city. See Dick- ous. The City conduct of Du- (Iowa Young, erson v. 332 N.W.2d buque through City Manager 1983)(Schultz, J., dissenting opinion). Oth- be, language Council found to in the erwise, I concur. 553.12(3)(a), Section flagrant. wilful and 553.12(3)(1979), Under Iowa Code section

an award of exemplary damages is discre-

tionary with the district court. findWe no

abuse of that discretion here.