Superior/Ideal v. OSKALOOSA BD. OF REV.
419 N.W.2d 405
Iowa
1988
Check Treatment

SUPERIOR/IDEAL, INC., An Iowa Corporation, Appellant, v. BOARD OF REVIEW OF the CITY OF OSKALOOSA, Iowa, and Mahaska County, Iowa, Appellees.

No. 86-849.

Supreme Court of Iowa.

Feb. 17, 1988.

419 N.W.2d 405

that this settlement did not bind the employer because it had not consented to it as required under section 85.22(3). Id. at 428-29. We remanded in part to determine what part of the settlement was allocable to the employee‘s own claim and indiсated that the employer would have no right to the portion of the settlement allocable to the wife and child. Id. at 429.

We reached a similar conclusion in , where we held that an employer was not entitled to a credit against benefits owed for the full amount of a third-party settlement with a deceased employee‘s estate. A credit was not proper for two reasons. First, legal liability of the third-party payor had not been established and second, the employer had “failed to establish the receipt of any part of the $2,500 by the” person entitled to receive workers’ compensation benefits. .

Other jurisdictions have addressed this issue. The employer urges this court to follow the rеasoning of an Illinois case, . In Prince the court held that an employer‘s lien attached to the entire wrongful death recovery by a deceased employee‘s estate, even though the dependent spouse was only entitled to one third of that recovery. The issue in Prince was somewhat different from the present case. The issue before us is not whether the employer‘s lien attaches to the wrongful death recovery while it is still held by the estate. Rather, the issue is whether the employer may withhold benefits to the dependent spouse after the estate has distributed the wrongful death recovery. Instead of distinguishing Prince on those grounds, however, we prefer tо reject the approach taken in that case. We believe the better rule is that an employer can only reach that portion of a third-party recovery which the workers’ compensation dependent is entitled to receive. This rule is well supported by the holdings of other courts. See ; ; ; ; ; ; ; ; ; ; . We choose to follow the rule of these jurisdictions.

In conclusion, we reverse the rulings of the district court and the commissioner. The employer in this case is not entitled to a credit for wrongful death damages recovered by the estate but not paid to Mary Bertrand. Because we reach this conclusion we need not address the issue raised concerning whether the employer waived its rights to makе a claim against that money.

REVERSED.

Walter F. Johnson and David J. Hester of Johnson, Bauerle, Hester & Walter, Ottumwa, for appellant.

Charles A. Stream, Co. Atty., and Charles D. Hunter and Linda S. Weindruch ‍​‌​‌​‌​‌‌‌‌​​​‌​‌​‌‌‌‌​‌​‌​​​‌‌‌‌‌​‌​​​‌‌‌​​​‌​‌‍of Belin, Harris, Helmick, Tesdell, Lamson, Blackledge & McCormick, P.C., Des Moines, for appellees.

Considered by LARSON, P.J., and SCHULTZ, CARTER, LAVORATO and NEUMAN, JJ.

LARSON, Justice.

Pursuant to Iowa Code section 441.38 (1985), Superior/Ideal, Inc. (Superior) appealed from decisions of the Board of Review of the City of Oskaloosa and Mаhaska County concerning assessments of Superior‘s property for 1981 and 1982. The board filed separate motions to dismiss, claiming that defective notices of appeal deprived the district court of jurisdiction in both appeals. The district court sustained the motions, and Superior appealed. We consolidated thе appeals and now reverse and remand in both cases.

In relevant part, Iowa Code section 441.38 provides:

Appeals may be taken from the action of the board of review with reference to protests of assessment, to the district court of the county in which such board holds its sessions within twenty days after its adjournment.... Appeals shall be taken by a written notice to that effеct to the chairperson or presiding officer of the board of review and served as an original notice.

(Emphasis added.) Because two years’ assessments are involved, and the alleged defects are different in each case, we will discuss them separately.

I. The Assessment for 1981.

Following the board‘s decision on Superior‘s 1981 assessment, Superior filed a petition for appeal in the Mahaska County District Court. Its “notice of appeal” named Superior as the plaintiff-appellant and the “Board of Review of the City of Oskaloosa, Iowa, and Mahaska County, Iowa,” as the defendant-appellee. The notice was addressed “To Robert DeCook, Chairman, Board of Review, Oskaloosa, Iowa: Mahaska County, Iowa:” The chairman of the board, Robert DeCook, was out of town at the time the notice was to be served, so the sheriff served the board‘s clerk, Gary Rozenboom.

In moving to dismiss the appeal, the board argued that the service of notice on Rozenboom was improper because section 441.38‘s requirement of service on the “chairperson or presiding officer” of the board cannot be interpreted to allow service on the board‘s clerk. The district court agreed, holding that, at least in the absence of an attempt to serve the board‘s vice chаirman, service on the clerk was not proper.

Following the language of section 441.38, our cases have established three basic requirements for a valid notice of appeal from the board of review: (1) written notice of the appeal, (2) served as an original notice, (3) on the chairman or presiding officer. See ; .

The issue in the 1981 appeal is whether the clerk of the board may be considered to be a presiding officer for purposes of the notice of appeal. Iowa Code chapter 441, which establishes the board of review and the procedures for its operation, does not define a “presiding offiсer.” In fact, the only time that term appears is in section 441.38, the appeal section. Chapter 441 is also silent as to a vice chairman for the board.

Besides the chairman, the clerk is the only other officer mentioned in the statute. See Iowa Code § 441.33. As a result of the lack of guidance from the statute as to what officer could be served in the absence of the chairman, an appellant might reasonably conclude that the next in line, as the presiding officer, would be the clerk.

In an earlier case, we noted the problem of determining who was a “presiding officer,” ‍​‌​‌​‌​‌‌‌‌​​​‌​‌​‌‌‌‌​‌​‌​​​‌‌‌‌‌​‌​​​‌‌‌​​​‌​‌‍in the absence of a definition of that term in the statute. We said:

It should not be necеssary for a taxpayer who desires to appeal from the action of a local board [of review] to hire a detective agency to ascertain who is the presiding officer. Service upon the mayor should be held good when it appears by verified allegation that he in fact presided over the boаrd.

.

In the present case, there was no evidence that the clerk had actually presided over a board meeting, but he understood that he would be the presiding officer in the absence of both the chairman and vice chairman.

We have held that, in appeals under section 441.38, “substantial” compliance with the noticе requirements is sufficient. See ; ; ; .

Substantial compliance is said to be compliance in respect to essential matters necessary to assure the reasonable objectives of the statute. See ; ; ; .

We believe that service of a notice of appeal on the clerk of the board of review assures сompliance with the reasonable ob-jectives of the appeal statute. What more appropriate recipient could be found to receive the notice of appeal than the person charged by statute to handle the board‘s paperwork. Iowa Rule of Civil Procedure 56.1(m), while not controlling here, reflects that philosophy by providing that service of a notice on a public corporation may be made on its presiding officer, clerk, or secretary.

In view of the lack of statutory guidance to the contrary under section 441.38, and because it is consistent with the objectives of the notice statute tо do so, we hold that service of a notice of appeal on the clerk of the board of review constitutes substantial compliance with the service requirements of section 441.38.

We reverse the court‘s dismissal of the 1981 appeal.

II. The 1982 Appeal.

Superior also filed an appeal from its 1982 assessment. The notice of appeal was directed to “Robert DeCook, Chairman, Board of Review, Oskaloosa, Iowa; Mahaska County, Iowa.” (Emphasis added.)

Service of the notice of appeal was attempted to be made by delivering a copy of it to the county attorney, who endorsed the following on the notice:

On this 18th day of June, 1982, the undersigned, being attorney for the Board of Review for the сity of Oskaloosa, Iowa, hereby accepts service of this original notice, the Notice of Appeal together with a Petition for Appeal attached; said service having been accepted on behalf of Robert DeCook, Chairman, Board of Review, Oskaloosa, Iowa.

(Emphasis added.)

The district court dismissed the 1982 appeal on two grounds: (1) the county attorney was not authorized to accept service on behalf of the chairman of the board of review; and (2) the notice of appeal, and the county attorney‘s acknowledgment of service, incorrectly identified Robert DeCook as chairman. (DeCook and Rozenboom had switched jobs between the 1981 and 1982 appeals. As of the time the 1982 appeal was taken, Gary Rozenboom was chairman and Robert DeCook was clerk).

A. Acceptance of service.

Iowa Code section 441.38 provides that notice to the chairman or presiding officer of the board of review shall be “served as an original notice.” Here, the county attorney purported to acknowledge service of the notice on behalf of the ‍​‌​‌​‌​‌‌‌‌​​​‌​‌​‌‌‌‌​‌​‌​​​‌‌‌‌‌​‌​​​‌‌‌​​​‌​‌‍chairman. (The board of review claims the county attorney‘s acknowledgment was not for the chairman, because the chairman was misnamed in the notice. We will address that question in the following division.)

An attorney may accept service of nоtice, or waive it, if the attorney has authority to do so. (acceptance of notice of appeal); (acceptance of original notice); (authority to accept service of original notice). In the case of an appeal notice, a lawyer is presumed to be authorized to acknowledge service. See 7A C.J.S. Attorney and Client §§ 172, 203, at 262-63, 339 (1980).

In board of review proceedings, the county attorney is not only authorized tо act on behalf of the board; he is in fact directed to do so.

In the case of cities having an assessor, the city legal department shall represent the assessor and board of review in all litigation dealing with assessments. In the case of counties, the county attorney shall represent the assessor and board of reviеw in all litigation dealing with assessments.

Iowa Code § 441.41.

The board of review argues that, even if an attorney was authorized to accept service generally, an appeal notice under section 441.38 is different. Under that statute, such a notice is a prerequisite to subject matter jurisdiction in the district court. An attorney‘s acceptancе of service would, in effect, be an attempt to establish subject matter jurisdiction by agreement, which he could not do.

The case primarily relied on to support that proposition, however, is distinguishable. That case was , which involved an appeal from a decision of the Des Moines City Council sitting as a board of review. Thе notice of appeal was held to be defective, and the question arose whether an appearance of counsel had obviated the need for the notice. We held that it did not because the appearance was by an attorney for the city council, not the board of review. The board of review was the proper party, not the city, although the city council acted in the capacity of a board of review. The case did not hold that service of notice could not be made by an attorney‘s acknowledgment. In fact, the suggestion is to the contrary: That if an attorney representing the proper рarty had acknowledged service of the notice of appeal it would be sufficient. .

While service of notice of appeal may be distinguished from service of an original notice, we believe for our present purposes the distinction in this case is one without a meaningful difference. Whether a chairman or presiding officer of the board of review is “served” personally, or through an attorney authorized to accept service, should not detract from the fact that there has been notice given. We believe that is all that is required under section 441.38.

In the analogous case involving appeals from district court to the supreme court, in which service of notice of appeal has been held to be jurisdictional, we have permitted acceptance of service by the appellee‘s attorney. See, e.g., ; ; . See generally 7A C.J.S. Attorney and Client § 172, at 262-63 (1980) (“An admission of due and personal service of a notice of appeal is presumed to be authorized....“); Id. § 203, at 339 (attorney for client against whom appeal is taken regarded as having authority to admit or waive service of notice).

B. Errors in notice.

The notice of appeal was addressed to Robert DeCook as chairman. The problem is that, while DeCook had been chairman at the time of ‍​‌​‌​‌​‌‌‌‌​​​‌​‌​‌‌‌‌​‌​‌​​​‌‌‌‌‌​‌​​​‌‌‌​​​‌​‌‍the 1981 appeal, he was not serving as chаirman at the time of the 1982 appeal. He was in fact serving as the clerk at that time.

For the reasons discussed in the first division, we believe service on Robert DeCook, as clerk, would have constituted substantial compliance with section 441.38. But, what is the effect of DeCook‘s title being misstated in the notice?

In .

While it is true that service of notice of an appeal is a necessary prerequisite to jurisdiction under section 441.38, we seе nothing in that statute, or elsewhere, to suggest jurisdiction should be sparingly recognized. Who could seriously argue that a notice directed to Robert DeCook identifying him as the chairman did not notify Robert DeCook as clerk that the appeal was pending?

We find substantial compliance with regard to both the 1981 and 1982 appeals under Iowa Code section 441.38 and therefore reverse on both appeals. We remand for resolution of these appeals on their merits.

REVERSED AND REMANDED.

CARTER, Justice (concurring specially).

I concur in the majority opinion but write separately to consider another issue. I believe the time is long overdue to limit the principle that subject matter jurisdiction may be raised at any time to those situations involving the power of the court to hear and decide cases of the general class to which the proceeding belongs. It should be required that technical infirmities which only serve to defeat the court‘s jurisdiction in a particular case be timely raised.

Clearly, the Iowa district court does have power to hear and decide appeals from action taken by the local board of review in assessment matters. Consequently, I would hold that appellees’ belated jurisdictional challenges in the present case were not timely raised and therefore were waived.

LAVORATO, J., joins this special concurrence.

LARSON

Justice

HAWKEYE BY-PRODUCTS, INC. A Corporation, and Frank Swenderoski, an Individual, Appellants, v. STATE of Iowа: Department of Agriculture of the State of Iowa; and Donald McCracken, Appellees.

No. 86-808.

Supreme Court of Iowa.

Feb. 17, 1988.

Dennis W. Johnson of Brick, Seckington, Bowers, Swartz & Gentry, P.C., Des Moines, for appellants.

Thomas J. Miller, Atty. Gen., and Joanne Moeller, Asst. Atty. Gen., for appellees.

CARTER, Justice.

Plaintiff Hawkeye By-Products, Inc. (Hawkeye) is engaged in the business of operating animal rendering plants. In 1984, it was contemplating construction of a plant in Adair County, Iowa. Legal requirements in force at the time required approval of the facility by the Iowa Department of Agriculture. See Iowa Code § 167.8 (1985).

Because Hawkeye was required to make an election with regard to exercising an option for the real estate on which the proposed plant was to be located, it pressed the dеpartment and particularly Donald McCracken, one of its employees, for an indication ‍​‌​‌​‌​‌‌‌‌​​​‌​‌​‌‌‌‌​‌​‌​​​‌‌‌‌‌​‌​​​‌‌‌​​​‌​‌‍as to whether its application would be favored. Hawkeye asserts that McCracken assured it that the necessary approval would be forthcoming if local authorities did not object. This assurance, in conjunction with the tentative approval of