Merle D. Brendeland, Janis Brendeland, Megan Russell, and Joseph Russell v. Iowa Department of Transportation

In the Iowa Supreme Court

No. 23–1356

Submitted October 9, 2024—Filed November 22, 2024

Merle D. Brendeland, Janis Brendeland, Megan Russell,

and Joseph Russell,

Appellants,

vs.

Iowa Department of Transportation,

Appellee.

Appeal from the Iowa District Court for Story County, Jennifer A. Miller,

judge.

Landowners appeal a district court order dismissing as untimely a

challenge to the Iowa Department of Transportation’s exercise of eminent domain

authority. Affirmed.

Mansfield, J., delivered the opinion of the court, in which Christensen,

C.J., and Waterman and McDermott, JJ., joined. Oxley, J., filed a dissenting

opinion, in which McDonald and May, JJ., joined.

Robert W. Goodwin of Goodwin Law Office, P.C., Ames, for appellants.

Brenna Bird, Attorney General, and Shean D. Fletchall and Robin G.

Formaker (deceased), Assistant Attorneys General, for appellee.

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Mansfield, Justice.

I. Introduction.

“Defer no time, delays have dangerous ends.” William Shakespeare, Henry

VI act 3, sc. 2, l. 33. Delays in a legal action may indeed have perilous

consequences. This appeal centers on two delays.

Several individuals owned a tract of land abutting an east–west highway

near that highway’s intersection with Interstate 35. When the Iowa Department

of Transportation (DOT) announced plans to modernize the interchange between

the highway and I-35, these landowners saw a development opportunity. Based

on a prior discussion with the DOT, they anticipated that when the DOT

condemned a strip of their land along the highway, they would be able to install

a commercial entrance to the highway. On January 29, 2023, the DOT formally

served the landowners with a notice that indicated the DOT would be taking “[a]ll

rights of direct access” between their property and Highway 210. Then, on

February 21, a DOT employee verbally told one of the landowners that

commercial access from their property to the highway would not be allowed. On

March 20 and May 2, the landowners filed actions in the district court

challenging the condemnation.

The district court dismissed the landowners’ actions as untimely given the

thirty-day deadline for bringing “an action challenging the exercise of eminent

domain authority or the condemnation proceedings” set forth in Iowa Code

section 6A.24(1) (2023). This in turn triggered another deadline, the thirty-day

deadline in Iowa Rule of Appellate Procedure 6.101(1)(b) (2023) for the

landowners to file a notice of appeal. But the landowners did not file their notice

of appeal in district court until fifty-seven days after the dismissal order, even

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though they filed it in our court twenty-two days after the court’s dismissal order,

and it was immediately served on the DOT.

The landowners ask to be excused from both delays—their delay in filing

their notice of appeal in district court and their prior delay in filing their actions

in district court. We conclude that the notice of appeal delay is not fatal. Rule

6.101(4) tolls the time for filing a notice of appeal in district court when the notice

is served on time, “provided the notice is filed with the district court clerk within

a reasonable time.” Iowa R. App. P. 6.101(4). We find that the thirty-five days

from service to actual filing is, just barely, a reasonable time.

But the other delay is fatal. Iowa Code section 6A.24(1) brooks no

exceptions. An action challenging the condemnation or the condemnation

proceedings “shall be commenced within thirty days after service of notice of

assessment.” Iowa Code § 6A.24(1). This statute—employing the mandatory term

“shall”—ensures prompt resolution of all condemnation-related disputes other

than the amount of money to be paid. In that way, it helps enable public projects

like the upgraded highway interchange in this case to move forward

expeditiously. Because the landowners missed their thirty-day deadline for

mounting a district court challenge, we affirm the district court’s dismissal of

their case.

II. Facts and Procedural History.

A. The DOT’s Notice of Condemnation. Merle Brendeland, Janis

Brendeland, Megan Russell, and Joseph Russell (“the landowners”) own

farmland in Huxley that borders the south side of Highway 210 just west of its

intersection with I-35. On the north side of that portion of Highway 210, a

business—Bayer CropScience—has a commercial entrance onto the highway.

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Also, just east of I-235, a business located north and a business located south

of Highway 210 each have commercial access to that highway.

The DOT planned to reconstruct and modernize the interchange serving

Highway 210 and I-35. Merle Brendeland and the co-owners understood that the

DOT wanted to condemn a strip of their land along the south side of the highway,

in effect broadening the Highway 210 right of way as it approached the

southbound entrance ramp for I-35. Based on a May 2022 conversation between

Brendeland and Brian Whaley of the DOT, they also believed that they would be

able to install a north–south commercial access road to the highway. This access

road would intersect with Highway 210 from the south at the same point that

the existing Bayer CropScience access road intersected with the highway from

the north. Brendeland had been in negotiation with a chain of convenience stores

and gas stations about developing a commercial rest stop to serve travelers on

I-35 and Highway 210. The rest stop would be located on the landowners’ land

and would utilize this planned access road.

On January 29, 2023, the DOT served Brendeland and the co-owners with

a notice of condemnation of the strip of land. The notice specifically stated that

the DOT would be taking “[a]ll rights of direct access between Primary Road No.

IA 210 and condemnees’ remaining property abutting thereon.” The notice also

identified the compensation commissioners and stated that they would be

meeting on March 21 at 9 a.m. at the sheriff’s office in Nevada, would view the

landowners’ property at approximately 10 a.m., and would return to the sheriff’s

office to proceed to appraise damages. See Iowa Code §§ 6B.8, .9.

Twenty-three days later, on February 21, Brendeland happened to be

speaking with Whaley. Whaley told him that the landowners’ parcel would not be

able to obtain commercial access to Highway 210 following the taking. Two days

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later, on February 23, Brendeland emailed the DOT through his legal counsel,

expressing “shock” that commercial access would not be available and

requesting a meeting.

The DOT responded in writing on March 8. The DOT explained that for

safety reasons, it had decided to acquire a full 1,000 feet of access rights on the

south side of Highway 210 leading up to the entrance ramp. In addition, the DOT

noted the existence of a new administrative rule imposing minimum spacing

requirements on access roads to highways effective November 2022. According

to the DOT, this new rule did not permit the commercial access requested by the

landowners.

Specifically, the new rule provided, “Access types A, B and C may be

permitted where the applicant can prove necessity and the access has a

minimum spacing distance of 600 feet from other connections.” Iowa Admin.

Code r. 761—112.5(3)(c).1 Going west from I-35, Highway 210 already had

multiple connections—including an existing residential access to the

landowners’ property. Thus, there would be no way to add the landowners’

proposed commercial access to Highway 210 given the 600-foot minimum

spacing requirements.

The DOT encouraged the landowners to consider using the nearest

north–south county road for access to their planned development. That road

intersects Highway 210 about a half-mile west of I-35 and also abuts the

landowners’ property.

1“[T]ypes A, B, and C” refer to different traffic volumes on the access road. Iowa Admin.

Code r. 761—112.5(2)(a)–(c). There is no dispute that the access road desired by the landowners

fell within either type A, type B, or type C, and not within type D, which would be for a farm field

entrance. See id. r. 761–112.5(2)(a)–(d).

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B. The Landowners’ Claims Challenging the DOT’s Condemnation.

Brendeland and the co-owners decided to contest the DOT’s position on several

fronts. First, Brendeland filed an application for a temporary injunction in the

Story County District Court, seeking to stay the hearing on March 21 at which

the compensation commissioners were to determine damages for the taking. See

Iowa Code § 6B.4. Following an evidentiary hearing, the district court denied

relief. That case is not a part of this appeal.

Additionally, on March 20, the landowners initiated two other proceedings.

They filed a petition for declaratory order with the DOT. See id. § 17A.9. There,

they sought a declaratory order that the DOT was compelled to provide them with

commercial access to Highway 210.

That same day, the landowners also brought an action in the Story County

District Court to block the condemnation. Therein the landowners asserted

various legal claims, based in large part on an allegation that the DOT was

violating condemnation law by acquiring property rights in excess of the

minimum required for its project.

The next day, March 21, the compensation commissioners met as

previously scheduled. They awarded the landowners damages of $127,345, the

precise amount calculated by the DOT’s appraiser.2

On April 13, the DOT denied the landowners’ request for a declaratory

order in the administrative proceeding. As before, the DOT explained that the

landowners’ requested commercial access conflicted with the administrative rule

it had adopted the previous November. Further, the DOT pointed out that the

commercial access desired by the landowners was inconsistent with the “[a]ll

2The landowners did not have an appraiser of their own. The landowners filed a separate

petition for appeal of that award, which is not part of this appeal. See Iowa Code §§ 6B.18, .21,

.22.

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rights of direct access” acquired by DOT in the condemnation proceeding. A few

weeks later, the landowners filed a petition for judicial review of this ruling in

the Story County District Court. See id. § 17A.19.

By agreement of both parties, the action to block the condemnation and

the petition for judicial review were consolidated by the district court.

C. The DOT’s Motion to Dismiss. The DOT filed a motion to dismiss the

consolidated action, arguing principally that it was barred by Iowa Code section

6A.24(1). That section provides that an “action challenging the exercise of

eminent domain . . . shall be commenced within thirty days after service of

notice of assessment pursuant to section 6B.8.” Iowa Code § 6A.24(1). The DOT

maintained that section 6A.24 is the exclusive vehicle for challenging exercises

of eminent domain, and because the March 20 challenge came fifty days after

the landowners were served with the January 29 notice pursuant to section 6B.8,

it was too late.

The landowners resisted. They argued that section 6A.24(1) did not apply

to all types of actions in which a landowner sought to attack a condemnation

and that, in any event, a discovery rule governed because the landowners could

not have reasonably discovered until March 8 that the DOT would not be allowing

them to have commercial access to Highway 210.

Following a hearing at which the attorneys for both sides presented nearly

two hours of argument, the district court granted the DOT’s motion to dismiss.

It first found that the discovery rule did not apply because “the facts surrounding

the taking of land by the DOT were not inherently unknown and unknowable.”

The court noted that the January 29 notice indicated that the taking included

all rights of access to Highway 210. In any event, the court reasoned that

“applying the discovery rule to this case would conflict with the plain language

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of Iowa Code Section 6A.24(1) which expressly provides that the date of service

of the Notice starts the time clock.”

The court also rejected the landowners’ argument that section 6A.24

doesn’t cover all condemnation challenges. It concluded that section 6A.24(1)

supplies the only method for landowners to challenge exercise of eminent

domain.

D. The Landowners’ Appeal. The district court’s dismissal order was filed

August 1. Twenty-two days later, on August 23, the landowners filed a notice of

appeal from the order of dismissal.

The notice of appeal contained the district court case captions and case

numbers for both consolidated cases. It was addressed to the clerk of the Story

County District Court, the clerk of the Iowa Supreme Court, and both of the

DOT’s counsel. It recited, “Original E-filed with the Clerk of District Court for

Story County.” It further recited, “And E-filed with the Clerk of Supreme Court

of Iowa.” Accompanying the notice was a certificate of service reflecting

August 23 service on the clerks of both courts and both counsel for the DOT.

However, by mistake, the landowners’ counsel neglected to actually file the

notice with the district court, although it was filed that day with the supreme

court and served on the DOT’s counsel.

On September 18, an administrative assistant to the landowners’ counsel

phoned the clerk of our court, inquiring as to why their office had not seen a

notice of briefing deadlines. The clerk responded that one would be forthcoming

soon. However, on September 27, our court issued a single-justice order as

follows:

This matter comes before the court on its own motion.

Plaintiffs filed a notice of appeal with this court on August 23, 2023,

from a district court order entered August 1, 2023. It appears no

notice of appeal was filed in district court as required by appellate

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rule 6.102(2). An untimely appeal deprives this court of jurisdiction

to consider the appeal.

Within 14 days of the filing of this order plaintiffs shall file a

statement addressing this court’s jurisdiction over the appeal. The

State shall file any response within 14 days of the filing of plaintiffs’

statement. The matter will then be considered by the court.

This prompted the landowners to immediately file a notice of appeal that

day with the district court. The landowners also filed a statement with our court,

explaining that they had taken all other steps in a timely fashion to perfect the

appeal, including ordering and paying for the transcript of the hearing on the

motion to dismiss.3 The landowners advised that failing to file the notice in the

district court had been “inadvertent and unintentional.” They asked that the

appeal be deemed timely under Iowa Rule of Appellate Procedure 6.101(4). That

rule tolls the deadline for filing the notice of appeal in the district court from the

date “when the notice is served, provided the notice is filed with the district court

clerk within a reasonable time.” Iowa R. App. P. 6.101(4).

The DOT countered with a filing urging that the appeal be dismissed

because the delay in filing the notice of appeal had not been “reasonable.” We

ordered the matter submitted with the appeal and retained the appeal.

III. Standard of Review.

“We review district court rulings on motions to dismiss for corrections of

error at law.” Puente v. Civ. Serv. Comm’n, 7 N.W.3d 15, 19 (Iowa 2024). “We also

review issues involving statutory construction for corrections of errors at law.”

Johnson Propane, Heating & Cooling, Inc. v. Iowa Dep’t of Transp., 891 N.W.2d

220, 224 (Iowa 2017).

3The record also reflects timely payment of the filing fee for the appeal and timely filing of

the combined certificate.

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IV. Legal Analysis.

A. Timeliness of This Appeal. We first consider the threshold issue of

this court’s jurisdiction. “The rules governing the ‘time for appeal are mandatory

and jurisdictional.’ ” Concerned Citizens of Se. Polk Sch. Dist. v. City Dev. Bd.,

872 N.W.2d 399, 402 (Iowa 2015) (quoting Root v. Toney, 841 N.W.2d 83, 87

(Iowa 2013)). “Failure to file a timely notice of appeal leaves us without subject

matter jurisdiction to hear the appeal.” Evenson v. Winnebago Indus., Inc.,

922 N.W.2d 335, 337 (Iowa 2019).

Iowa Rule of Appellate Procedure 6.101(1)(b) provides that “[a] notice of

appeal must be filed within 30 days after the filing of the final order or judgment.”

This strict thirty-day requirement is somewhat tempered by rule 6.101(4), which

tolls the time for filing a notice of appeal “when the notice is served, provided the

notice is filed with the district court clerk within a reasonable time.” This tolling

allows “some flexibility.” Cook v. City of Council Bluffs, 264 N.W.2d 784, 787 (Iowa

1978) (en banc).

Following the district court’s entry of final judgment on August 1, the

landowners filed their notice of appeal on August 23 with the clerk of our court

and served a copy on counsel for the DOT. By mistake, they did not file the notice

of appeal with the district court. When made aware of their error, the landowners

immediately filed their notice of appeal with the district court clerk. However, by

then it was September 27, thirty-five days after the notice of appeal had been

served. The question before us is whether filing the notice of appeal to the district

court occurred “within a reasonable time” as described in rule 6.101(4).

We have previously established some time parameters. In Evenson v.

Winnebago Industries, Inc., we held that 144 days from service to filing of the

notice of appeal was too long and dismissed the appeal. 922 N.W.2d at 337. In

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Cook v. City of Council Bluffs, we indicated that a twenty-six-day lag between

service and filing was “near the line” but acceptable. Cook, 264 N.W.2d at 787.

In Thayer v. State, we explained that “thirty-two days was a reasonable time to

file the notice of appeal after service on the parties.” 653 N.W.2d 595, 599 (Iowa

2002). However, in Gordon v. Wright County Board of Supervisors, we held that

even though the opposing party had suffered no prejudice from the delay, sixty-

three days was “obviously” not reasonable. 320 N.W.2d 565, 567 (Iowa 1982). In

all four cases, when appellants became aware of the problem, they promptly sent

notices to the district court clerks. Evenson, 922 N.W.2d at 336; Thayer,

653 N.W.2d at 598; Gordon, 320 N.W.2d at 566; Cook, 264 N.W.2d at 787.

Timewise, then, this case straddles Cook and Thayer, where we deemed

the appeals timely, and Gordon and Evenson, where we deemed them untimely.

Two other points should be noted about Cook and Thayer. In Cook, the notice of

appeal was actually filed with the district court fifty-four days after the entry of

judgment, see 264 N.W.2d at 787; in Thayer, it was filed sixty-three days

afterward, see 653 N.W.2d at 598. Here, the notice of appeal arrived in district

court fifty-seven days after the entry of judgment. The time that elapsed from

judgment to filing of the notice of appeal was more than in Cook but less than in

Thayer.

Another point worth noting is that in Cook and Thayer, notices of appeal

were originally mailed in a timely fashion, but for some reason they didn’t arrive.

Thayer, 653 N.W.2d at 599; Cook, 264 N.W.2d at 787. Here, because we now

inhabit a world of electronic filing, there was no mailing that didn’t arrive.

Instead, according to the landowners’ counsel, his administrative assistant for

some reason failed to make the required electronic submission of the notice of

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appeal to the district court. Seizing on this distinction, the DOT urges that the

delay here was not reasonable.

We disagree. First, rule 6.101(4) speaks in terms of “reasonable time.” Iowa

R. App. P. 6.101(4). This indicates that the primary focus should be on the period

of time involved. Indeed, our most recent decision, Evenson v. Winnebago

Industries, Inc., embraced a purely time-based approach. See 922 N.W.2d at 337

(comparing the time period in that case to the time periods in Cook and Thayer).

Under a time-based approach, the delay here was reasonable.

Second, even in the earlier cases of Cook and Thayer, we quoted the

following definition of “reasonable time”: “such time as is necessary, under the

circumstances, for a reasonably prudent and diligent man to do conveniently

what the contract or duty requires should be done, having regard for the rights,

and possibly the loss if any to the other party.” Thayer, 653 N.W.2d at 599;

Cook, 264 N.W.2d at 787. Applying that definition here leads to the same

outcome. We cannot say that counsel in any of the three cases—Cook or Thayer

or the present case—acted prudently. Experienced practitioners will remember

that in the pre-efiling days of paper, when an attorney mailed a notice of appeal

to a court in another part of the state, it was customary to include a stamped,

self-addressed envelope so a file-stamped copy could be returned, thereby

confirming that the filing had actually occurred. Apparently, counsel for the

appellants overlooked that step in Cook and Thayer. But importantly, as we

emphasized in Thayer, there is no “loss” when the appellee and our court are

notified of the appeal immediately. See 653 N.W.2d at 599 (“Because both the

University and the Supreme Court clerk received notice of the appeal in a timely

fashion, we find no unfairness to the University.”). That’s what happened in

Thayer, and that’s what happened here.

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Also, we specifically stated in Evenson that the emergence of electronic

filing does not affect our deadlines:

Our Iowa Rules of Electronic Procedure do not affect our

deadlines contained in our rules. These rules provide in relevant

part, “The availability of electronic filing, however, does not affect

deadlines or the provisions for extension of deadlines in the Iowa

Code or Iowa Court Rules.”

922 N.W.2d at 336 (quoting Iowa R. Elec. P. 16.309(1)(a)). Logically, that includes

the “reasonable time” deadline in rule 6.101(4).

In sum, we believe that this case is fundamentally similar to Cook and

Thayer. As in those cases, the attorney initially did what they were supposed to

do to effectuate a timely filing of a notice of appeal. Here, the notice of appeal

prepared by the attorney made it abundantly clear that it had to be filed with the

district court. No administrative assistant looking at the notice of appeal could

conclude otherwise. As in Cook and Thayer, the attorney acted improvidently

and didn’t do the proper follow up. And as in Thayer (the situation is less clear

in Cook), the courts rescued the attorney by inquiring as to the missing filed

notice of appeal.

We thus conclude that the thirty-five days involved here—like the

twenty-six in Cook and the thirty-two in Thayer—didn’t cross the line. We said

that twenty-six was “close” in Cook, but we didn’t repeat that comment in Thayer.

As in Cook and Thayer, counsel here could and should have acted more

prudently. Still, counsel was quite diligent in pursuing the appeal—even going

so far as to call about the status of the briefing schedule. There was no prejudice

whatsoever to the other side. We therefore find that the notice of appeal was filed

with the clerk of the district court within a reasonable time after timely service,

although only barely.

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B. Timeliness of the Actions Filed Below. The landowners challenge the

DOT’s exercise of eminent domain on an “excessive taking” theory. Iowa law

requires a showing by the condemnor of “the minimum amount of land necessary

to achieve the public purpose.” Iowa Code § 6B.3(1)(g).

Any land to be acquired by condemnation beyond the necessary

minimum to complete the project shall be presumed not to be

necessary for a public use or public purpose unless the applicant

can show that a substantial need exists for the additional property

to achieve the public use or public purpose.

Id.; see also id. § 6A.1 (limiting takings to what “may be necessary for any public

improvement”). Here, the landowners contend that it was unnecessary and illegal

for the DOT to condemn all access rights along the south side of Highway 210,

thereby preventing them from getting commercial access to the highway.

The district court, however, found that the landowners’ legal challenge was

untimely. Section 6A.24 imposes a thirty-day deadline and states,

1. An owner of property described in an application for

condemnation may bring an action challenging the exercise of

eminent domain authority or the condemnation proceedings. Such

action shall be commenced within thirty days after service of notice

of assessment pursuant to section 6B.8 by the filing of a petition in

district court.

Id. § 6A.24(1). It is undisputed that the landowners were served with the DOT’s

notice of assessment on January 29 and did not initiate the present actions until

March 20, fifty days later.

The landowners maintain that they have brought “common law” claims in

injunction, mandamus, or certiorari that are not subject to Iowa Code section

6A.24. See Thompson v. City of Osage, 421 N.W.2d 529, 531 (Iowa 1988) (“A

condemnee may test the initiating action of the condemnor by injunctive action,

mandamus, and certiorari.”). Therefore, they contend, they may rely on

timeliness caselaw that predates the 2006 enactment of section 6A.24. See id. at

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531–32 (determining that the thirty-day period for bringing a certiorari action

did not start until the assessment became final). This contention requires us to

examine the text of section 6A.24.

“When interpreting the meaning of a statute, we start with the statute’s

text. If statutory language in its proper context is unambiguous, we do not look

past the plain meaning of the words.” Hummel v. Smith, 999 N.W.2d 301, 305

(Iowa 2023) (quoting Calcaterra v. Iowa Bd. of Med., 965 N.W.2d 899, 904

(Iowa 2021)). Here we need not go beyond the plain and unambiguous text of the

statute.

The statute covers “action[s] challenging the exercise of eminent domain

authority or the condemnation proceedings.” Iowa Code § 6A.24. Such claims

“shall” be brought within thirty days after service of assessment. Id. The

landowners’ claims fall squarely within the scope of this statute of limitations.

In their own words, they “challenge the validity of the condemnation of a portion

of Petitioners’ land in Story County, Iowa on the basis that it is an excessive

taking.” They allege the taking was excessive because the DOT took more

property rights than necessary to achieve its public purpose. So, the landowners

are bound by the thirty-day time limit in section 6A.24(1).

The landowners argue that section 6A.24 is merely an additional arrow in

the property owner’s quiver; the property owner always has the option of

pursuing a common law challenge to the condemnation without going through

that section. In the landowners’ view, the property owner only has to comply with

section 6A.24 if they want to recover attorney fees. See Iowa Code § 6A.24(3) (“If

a property owner . . . prevails in an action brought under this section, the

acquiring agency shall be required to pay the costs, including reasonable

attorney fees, of the adverse party.”). There are several answers to this argument.

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In the first place, that isn’t what the statute says. Section 6A.24 applies to

“an action challenging the exercise of eminent domain authority or the

condemnation proceedings”—not to some of those actions. Id. § 6A.24(1). In

addition, section 6A.24 is titled “Judicial review of eminent domain authority.”

Id. § 6A.24. That title indicates that section 6A.24 covers the subject of judicial

review, not merely one type of judicial review. The general assembly enacted the

title as part of the legislation in 2006, see 2006 Iowa Acts 1st Extraordinary Sess.

ch. 1001 § 5, and it may be considered in interpreting the statutory text. See

State v. Hall, 969 N.W.2d 299, 307 (Iowa 2022) (“Although the title of a statute

cannot change the plain meaning of the statutory text, it can be considered in

interpreting the text.”).

Furthermore, Iowa Code section 6B.1A contains express exclusivity

language that controls here. That section provides, “The procedure for the

condemnation of private property for works of internal improvement, and for

other public projects, uses, or purposes, unless and except as otherwise provided

by law, shall be in accordance with the provisions of this chapter.” Iowa Code

§ 6B.1A. Just a few sections later, section 6B.3A, titled “Challenge by owner,”

cross-references section 6A.24 and states,

An owner of property described in an application for

condemnation may bring an action to challenge the exercise of

eminent domain authority or the condemnation proceedings in the

district court of the county in which the private property is situated

as provided in section 6A.24.

Id. § 6B.3A. In other words, section 6B.1A makes section 6B.3A the exclusive

vehicle for challenging the exercise of eminent domain authority or the

condemnation proceedings. The latter, in turn, makes section 6A.24 the

exclusive vehicle for doing so.

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Also, to the extent the landowners are lamenting that section 6A.24

impairs their prior common law rights by imposing a tighter deadline for

challenging condemnations, they run into section 4.2, which states,

The rule of the common law, that statutes in derogation

thereof are to be strictly construed, has no application to this Code.

Its provisions and all proceedings under it shall be liberally

construed with a view to promote its objects and assist the parties

in obtaining justice.

Id. § 4.2. There are good policy reasons why the legislature might want a tight

deadline. It makes sense to resolve challenges to the condemnation itself before

assessing damages and turning the property over to the condemnor. Moreover,

the approach advocated by the landowners, allowing a property owner to bring

a potpourri of “common law” claims subject to the old deadline and “section

6A.24” claims subject to the new deadline, makes the least sense of all.

Our recent decision in Johnson Propane, Heating & Cooling, Inc. v. Iowa

Department of Transportation, 891 N.W.2d 220, is on point. There, the landowner

complained that the DOT should have taken all of its property for a highway

project instead of just a portion because the taking left the landowner with an

uneconomical remnant. Id. at 222. But the landowner waited until the

compensation commission had determined damages before going to court. Id.

We held that the landowner’s action was untimely:

The issue as to whether a taking leaves an uneconomical remnant

is a challenge to the acquiring agency’s authority to exercise its

power of eminent domain. Section 6A.24(1) requires that a challenge

to the acquiring authority’s exercise of eminent domain must be

brought by a separate action by filing an action in district court.

. . . Section 6A.24(1) requires a party to file an action within

thirty days from the notice of assessment. Johnson Propane failed

to file such an action. Failure to file an action in a timely manner

deprives a court of authority to hear a particular case.

18

Id. at 225. In other words, we explained that section 6A.24(1) is the only way for

a property owner to challenge “the acquiring agency’s authority to exercise its

power of eminent domain.” Id. And if an effort to require the DOT to condemn

more than it wants has to be brought under section 6A.24(1), it logically follows

that an effort to require the DOT to condemn less than it wants also must be

brought under section 6A.24(1). Both are challenges to “the exercise of eminent

domain authority or the condemnation proceedings.” Iowa Code § 6A.24(1).

The landowners try to distinguish Johnson Propane on the ground that the

“uneconomical remnant” claim wasn’t available at common law. This strikes us

as a non sequitur. By 2006, Iowa’s condemnation laws obligated the condemning

authority both to condemn only the “minimum amount of land necessary to

achieve the public purpose” and to condemn “an uneconomical remnant.” Iowa

Code §§ 6B.3(1)(g), .54(8) (2005). Both were statutory claims. So, if section 6A.24

as enacted in 2006 applies to one, it should rightfully apply to the other.

For all these reasons, we reject the landowners’ argument that they were

not subject to the thirty-day deadline in section 6A.24(1) and affirm the district

court on this point.

Alternatively, the landowners argue that under a discovery rule, the

statute of limitations should be tolled to March 8, 2023, the date when they

received the DOT email confirming they would not be allowed commercial access

to Highway 210. The discovery rule is an equitable doctrine that allows plaintiffs

to toll statutes of limitations when “failure to bring a timely action arises from

the plaintiff’s lack of knowledge about key facts that are unknown to the plaintiff

and cannot reasonably be discovered by the plaintiff even in the exercise of due

diligence.” Mormann v. Iowa Workforce Dev., 913 N.W.2d 554, 566–67

(Iowa 2018). We apply the discovery rule when it would be unfair to charge a

19

plaintiff with knowledge of facts which were unknown and inherently

unknowable. Id. at 567.

We agree with both facets of the district court’s ruling here. In the first

place, the January 29 notice indicated that the DOT was taking “[a]ll rights of

direct access between Primary Road No. IA 210 and condemnees’ remaining

property abutting thereon.” In other words, there could be no new access. Thus,

the key facts were far from unknowable to the landowners.

Moreover, the discovery rule doesn’t apply when a statute of limitations

contains a specific triggering event. See MidWestOne Bank v. Heartland Co-op,

941 N.W.2d 876, 884 (Iowa 2020) (“We have refused to apply a discovery rule to

other statutes of limitation that set forth the triggering event.”). In MidWestOne

Bank v. Heartland Co-op, for example, we refused to apply the discovery rule

where the date of sale started the time clock in the statute. Id. at 884–85. In this

case, Iowa Code section 6A.24(1) (2023) provides for a specific triggering

event—namely, the date of service of the notice of assessment—so no discovery

rule is available.

V. Conclusion.

For the foregoing reasons, we affirm the district court’s order dismissing

this consolidated proceeding.

Affirmed.

Christensen, C.J., and Waterman and McDermott, JJ., join this opinion.

Oxley, J., files a dissenting opinion, in which McDonald and May, JJ., join.

20

#23–1356, Brendeland v. IDOT

Oxley, Justice (dissenting).

We have never before allowed parties to use the tolling-upon-service rule

to excuse a late-filed notice of appeal that was the result of their attorney’s

inadvertence. The majority does so here, excusing the attorney’s admitted

mistake by blaming the attorney’s administrative assistant. But an attorney’s

assistant’s mistake is the attorney’s mistake, and failing to submit a document

through the court’s electronic document management system (EDMS) is

analogous to failing to put the notice of appeal in the mail, which is the

opposite of the “pruden[ce] and diligen[ce]” we have required in every case until

today. Cook v. City of Council Bluffs, 264 N.W.2d 784, 787 (Iowa 1978) (en

banc) (concluding first that an attorney acted as a “reasonably prudent and

diligent” person by mailing the notice of appeal to the district court the same

day it was served by mail before considering the length of the delay (quoting

Williamson Heater Co. v. Whitmer, 183 N.W. 404, 405 (Iowa 1921)).

The majority has distilled the jurisdictional rule down to “some time

parameters.” Essentially, our jurisdiction turns on whether our clerk’s office

alerts a party of a missing district court notice of appeal within some undefined

period of time—a period that our court keeps arbitrarily inching out. This is

hardly the strict construction owed our jurisdictional rules. See Terrace Hill

Soc’y Found. v. Terrace Hill Comm’n, 6 N.W.3d 290, 295 (Iowa 2024) (“Because

the doctrine of sovereign immunity is . . . jurisdictional in nature, any waiver of

sovereign immunity must be ‘strictly construed.’ ” (quoting Feltes v. State,

385 N.W.2d 544, 548 (Iowa 1986) (en banc))); see also Segura v. State,

889 N.W.2d 215, 224 (Iowa 2017) (“[J]urisdictional matters must be carefully

construed.”). I respectfully dissent.

21

I.

“The deadline for filing a notice of appeal [is] mandatory: ‘[w]here an

appellant is late in filing, by as little as one day, we are without jurisdiction to

consider the appeal.’ ” Jones v. State, 981 N.W.2d 141, 147 (Iowa 2022) (second

alteration in original) (quoting Root v. Toney, 841 N.W.2d 83, 87 (Iowa 2013)).

Our rules allow service of a notice of appeal to toll the 30-day period for filing

that notice with the district court “provided the notice is filed with the district

court clerk within a reasonable time.” Iowa R. App. P. 6.101(4) (2023). Contrary

to the majority’s position, whether a party files the notice of appeal within a

“reasonable time” after timely service is not measured solely by the number of

days that lapse between service of the notice and the actual filing in district

court. The reason for the delay also matters,4 as we made clear by requiring

4The concept of “reasonable time” arises in a variety of contexts, and courts consistently

look to the reason for the delay, not just the length of it. What constitutes a “reasonable time”

necessarily depends on there being a reason. In the absence of a reason, the length of a delay

may be shorter or longer, but the delay is not reasonable. See, e.g., Freeman v. Busch, 349 F.3d

582, 589 (8th Cir. 2003) (finding that the district court properly denied a motion to amend the

complaint where it was filed ten months after the court entered the scheduling order and seven

weeks before the close of discovery where plaintiff failed to provide a reason why punitive

damages could not have been alleged earlier); Kagan v. Caterpillar Tractor Co., 795 F.2d 601,

610 (7th Cir. 1986) (“Contrary to Kagan’s belief that all motions filed within one year of the

dismissal are timely under Rule 60(b)(1), ‘the one-year period represents an extreme limit, and

the motion will be rejected as untimely if not made within a “reasonable time,” even though the

one-year period has not expired.’ . . . ‘What constitutes “reasonable time” depends upon the

facts of each case, taking into consideration, [inter alia,] . . . the reason for delay . . . .’ ” (first

quoting Wright & Miller, Federal Practice and Procedure, Civil § 2866, p. 232; and then quoting

Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981) (per curiam))); Malibu Media, LLC v.

Weaver, No. 8:14–cv–1580–T–33TBM, 2016 WL 473133, at *1–2 (M.D. Fla. Feb. 8, 2016)

(overruling objections to an order denying motions to compel brought one day before the

discovery deadline because the movant failed to provide a reason or good cause for the delay);

United States v. Colon-Miranda, 985 F. Supp. 36, 39 (D. P.R. 1997) (explaining that “what

constitutes ‘a reasonable time’ before trial [for purposes of giving notice of intent to seek the

death penalty under 18 U.S.C. § 3593] must balance such factors as: The length of time

between the notice of intent to seek the death penalty and the trial or plea, the reason for any

delay, the nature of the government’s conduct, and the prejudice to defendant from delay” and

noting that “the First Circuit has specifically stated that it looks unfavorably upon delays

which, though unintentional, result from government ambivalence”); Clarke v. Costine ex rel.

Clarke, 821 A.2d 104, 109 (N.J. Super. Ct. App. Div. 2003) (identifying the “key factors” in

considering a laches defense to include “the length of delay” and “reasons for delay” in

concluding that “while the delay was unusually long, the judge found ample justification for

22

that the party act as a “reasonably prudent and diligent” person in filing the

notice of appeal. See Cook, 264 N.W.2d at 787. In other words, the delay

cannot result from something within the filing party’s control—as it admittedly

did here. This is an important qualifier given the jurisdictional nature of the

rule. The tolling-upon-service rule applies only to save late-filed notices that

miss the deadline for reasons beyond the attorney’s control.

In Cook v. City of Council Bluffs, we defined “reasonable time” for

purposes of the predecessor of rule 6.101(4)

as being “such time as is necessary, under the circumstances, for

a reasonably prudent and diligent man to do conveniently what the

contract or duty requires should be done, having regard for the

rights, and possibly the loss if any to the other party affected.”

Id. (emphasis added) (quoting Williamson Heater Co. v. Whitmer, 183 N.W. 404,

405 (Iowa 1921)). In applying this definition to the tolling-upon-service rule, we

considered two “additional factors.” First, the plaintiff’s attorney mailed the

notice of appeal to the district court on the same date it was served on the

defendant’s attorney by mail, “[b]ut the notice mailed to the clerk went awry.”

Id. That is, the failure of the notice to reach the district court clerk was not the

appellant’s fault. The same was true in subsequent cases, where we found that

the time for filing tolled. See Thayer v. State, 653 N.W.2d 595, 599 (Iowa 2002)

(“Thayer sent notice of appeal in a timely manner to the district court clerk,

but, for some reason, the notice did not arrive.”); Budde v. City Dev. Bd., 276

N.W.2d 846, 849 (Iowa 1979) (en banc) (noting that “[a]pplication of these

criteria [(to act prudently and diligently)] is somewhat hampered by the record”

the delay”); In re K. H. H., 466 P.3d 698, 701 (Or. Ct. App. 2020) (examining Oregon Revised

Statute section 419B.923(3), which allows a parent to file a motion to set aside an order or

judgment terminating rights within a “reasonable time,” and explaining that the court may

consider “the circumstances surrounding the filing, including the length of the delay and any

reasons for it” (quoting In re A.D.J., 168 P.3d 798, 802 (Or. Ct. App. 2007))).

23

when “[t]here is nothing of record as to how the motion was conveyed from the

attorney for respondents in Des Moines to the office of the clerk in Dubuque”

but concluding that a seven-day delay was reasonable); City of Central City v.

Knowlton, 265 N.W.2d 749, 750–51 (Iowa 1978) (concluding that filing was

timely where it was served on the thirtieth day after final judgment and filed in

district court the next day); cf. Marco Dev. Corp. v. City of Cedar Falls, 473

N.W.2d 41, 45 (Iowa 1991) (“Marco served the City ten days after the trial court

filed its ruling and, on the same day, mailed to the clerk of court its motion for

enlargement. The motion was file stamped by the clerk of court the following

day.”); Smart-Way Truckin’, Inc. v. Cota Indus., Inc., 439 N.W.2d 162, 163–64

(Iowa 1988) (declining to address whether a two-and-a-half month delay was

nonetheless timely based on the attorney’s affidavit that the notice had been

properly mailed to the district court where the attorney took the further step of

“caus[ing] the clerk of court to commence an action in rem pursuant to Iowa

Code chapter 647, Restoration of Lost Records, requesting the district court to

restore the lost, destroyed or misfiled notice of appeal in question” such that

“the record . . . show[ed] that the appeal was perfected by a timely filing of the

notice of appeal”).

It was only after first considering whether the plaintiff did what a

“reasonably prudent and diligent” person needed to do to comply with the filing

requirement that we then considered the length of time it actually took for the

notice to get filed. See Cook, 264 N.W.2d at 787. “Then the second factor comes

into play, the word ‘reasonable.’ In promulgating rule 82(d), this court did not

state that the filing had to be done within a specified number of days after

serving.” Id. Left to determine a “reasonable” time, we said that twenty-six days

was “near the line.” Id. Later, we concluded that sixty-three days “[o]bviously”

24

was not. Gordon v. Wright Cnty. Bd. of Supervisors, 320 N.W.2d 565, 566–67

(Iowa 1982). Even in Gordon v. Wright County Board of Supervisors, we only

discussed the timing after first recognizing that the plaintiff’s counsel had

timely mailed the notice of appeal to the district court, but “[t]he district court

clerk never received the mailed notice.” Id.5 Establishing that the filing party

acted diligently and prudently is critical to determining whether the actual

filing was completed in a reasonable time for purposes of the tolling rule. Our

analysis in Cook exemplified this point in summarizing:

[U]nder the circumstances here the mailing of the notice to the

district court clerk at the same time as the service, the further

mailing to the district court clerk after plaintiff’s attorney learned

that the first notice could not be found, and the receiving of the

notice by the clerk 26 days after the serving we hold that plaintiff

accomplished the filing of the notice within a ‘reasonable’ time after

serving.

264 N.W.2d at 787 (emphasis added).

II.

Here, the landowner’s attorney who signed the notice of appeal and its

certificate of service “thought and assumed that his secretary had filed” the

notice of appeal in both the district court and supreme court on the same day.

But counsel admits that the notice was not actually submitted to the district

court through its separate EDMS interface; he admits it was his fault, not the

fault of some third-party outside his control. It was not until he was notified by

the clerk of our court some thirty-five days later that counsel submitted the

5In Evenson v. Winnebago Industries, Inc., we held that the lengthy delay—144 days—

was not within a reasonable time of serving the notice of appeal because “[a] 144-day delay is

far beyond the sixty-three-day delay we found unreasonable in Gordon.” 922 N.W.2d 335, 337

(Iowa 2019). That we went straight to the length of the delay did not jettison the requirement

that the attorney act “prudent[ly] and diligent[ly]”; indeed, we first quoted that rule. See id. at

336.

25

notice of appeal to the district court through EDMS on September 27, 2023.

Counsel describes the failure as “inadvertent and unintentional.”

The requirement for “prudent and diligent” action does not allow for

inadvertent failures by counsel. Notably, Iowa Rule of Appellate Procedure

6.101(4) does not provide a “good cause” backstop like some of our other rules.

See, e.g., Iowa R. Civ. P. 1.302(5) (allowing a party to seek an extension of time

to effect service of an original notice if the party “shows good cause for the

failure of service”). Even then, we have said that “[i]nadvertence, neglect,

misunderstanding, ignorance of the rule or its burden, or half-hearted attempts

at service have generally been [deemed] insufficient to show good cause.” Crall

v. Davis, 714 N.W.2d 616, 620 (Iowa 2006) (quoting Meier v. Senecaut, 641

N.W.2d 532, 542 (Iowa 2002)). If inadvertence is insufficient to support a rule

allowing an exception for good cause, it is certainly insufficient to establish

that a party acted prudently and diligently as is required to benefit from rule

6.101(4)’s tolling of the time for filing the jurisdictionally required notice of

appeal.

Had the landowner’s attorney (or his administrative assistant) attempted

to submit the notice of appeal to the district court through the proper EDMS

filing system, and it was the EDMS system that failed to transmit the notice,

that would be analogous to mailing the notice of appeal to the clerk at the same

time as serving it—the critical point to our holding in Cook. See 264 N.W.2d at

787 (“One [factor] is that plaintiff’s attorney did not wait until May 2, 1977, to

mail the notice to the district court clerk; his secretary mailed it at the same

time she served defendants’ attorney by mail on April 8, 1977.” (emphasis

added)). The majority ignores this critical distinction, hypothesizing instead

that the attorneys in both Cook and Thayer v. State could have (but apparently

26

did not; how we know that is unclear) sent along a stamped, self-addressed

envelope for the clerk to return a copy of the notice, which would have

confirmed that the notice was filed. From there, the majority concludes that

those attorneys did not act prudently after all. Except we said that they did act

prudently in both Cook and Thayer. See Thayer, 653 N.W.2d at 598–99; Cook,

264 N.W.2d at 787. Besides relying on hypothetical events entirely outside the

record of what happened in those cases to rewrite their holdings, the majority’s

attempt to equate counsel’s conduct here with what happened in Cook and

Thayer simply ignores what we actually said in both cases: that it was the act

of mailing the notice at the same time it was served that made the attorneys’

actions prudent. See Thayer, 653 N.W.2d at 598–99; Cook, 264 N.W.2d at 787.

The EDMS equivalent of that didn’t happen here, as the landowner’s attorney

candidly admits.

After rewriting Cook and Thayer to conclude that the attorneys there

weren’t so prudent after all, the majority recognizes that the delay here was

caused by the landowner’s attorney’s mistake but nonetheless excuses it as the

fault of the attorney’s administrative assistant. According to the majority, the

attorney did everything he could, but his administrative assistant failed to

follow his clear direction. Yet the attorney personally signed the certificate of

service certifying that the notice of appeal had been submitted to the district

court clerk when it had not. In any event, the assistant is the attorney’s agent,

and the assistant’s mistakes are the attorney’s mistakes. See, e.g., Palmer v.

Hofman, 745 N.W.2d 745, 748 (Iowa Ct. App. 2008) (holding that a paralegal’s

conduct that resulted in service being delayed well beyond the 90-day

requirement did not “constitute good cause excusing the delay of service

because counsel was ultimately responsible for the conduct and work product

27

of his paralegal” and that the paralegal’s inaction was “not akin to the

uncontrollable, rogue actions of a third party beyond the attorney or party’s

reach that prevents timely service of process”); Iowa Sup. Ct. Bd. of Prof’l Ethics

& Conduct v. Herrera, 560 N.W.2d 592, 595 (Iowa 1997) (“[W]e have a strong

negative reaction to a lawyer’s attempt to blame professional shortcomings on

an employee.”); Comm. on Prof’l Ethics & Conduct v. Postma, 430 N.W.2d 387,

389 (Iowa 1988) (en banc) (characterizing an attorney’s attempt to blame an

error on his secretary as a “timeworn excuse” that “judges view with

unbounded skepticism, and never with admiration”); see also Midwest Motor

Sports v. Arctic Cat Sales, Inc., 347 F.3d 693, 698 (8th Cir. 2003) (“[L]awyers

cannot escape responsibility for the wrongdoing they supervise by asserting

that it was their agents, not themselves, who committed the wrong.”). The

assistant’s inadvertence is accountable as the attorney’s, and thus as the

party’s. The assistant’s failure is not—as the majority suggests—the same thing

as the third-party postal system failing to deliver a properly mailed document.

III.

The majority also applies a “no harm, no foul” analysis to excuse

compliance with our jurisdictional rules because the parties and the appellate

court were “notified immediately” of the appeal. There are two problems with

this justification. First, notification to the parties is a necessary precursor to a

party’s use of rule 6.101(4)—a timely service of the notice is what triggers the

tolling. So, the appellate court and opposing party are always notified

immediately when rule 6.101(4) is invoked, and this justification proves

nothing.

Second, it ignores the reason we require notices of appeal to be filed in

district court. The copy filed in our court is “informational.” See Iowa R. App. P.

28

6.101(1)(b). The notice of appeal filed in district court is the one that matters

because it alerts the district court that it no longer has jurisdiction over the

case. See Iowa State Bank & Tr. Co. v. Michel, 683 N.W.2d 95, 110 (Iowa 2004)

(recognizing that “the filing of a notice of appeal generally deprives the district

court of jurisdiction” other than over collateral matters such as awarding

attorney fees). Indeed, a party who files a notice of appeal during the pendency

of its own posttrial substantive motion prevents the district court from ruling

on it. See Freer v. DAC, Inc., 929 N.W.2d 685, 688 (Iowa 2019) (“In filing the

notice of appeal, Freer divested the district court of jurisdiction over the

posttrial motion.”); IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 628 (Iowa 2000)

(“Additionally, once the appeal is perfected, the district court loses jurisdiction

to rule on the motion, and any such ruling has no legal effect.”). Filing the

notice of appeal in the district court has significance, even if the parties and

the appellate courts are “notified immediately” of the appeal.

IV.

The landowner’s attorney admits he inadvertently failed to file the notice

of appeal in district court until notified over a month after the notice of appeal

had been served. He failed to act with the prudence and diligence required to

trigger the tolling rule, see Cook, 264 N.W.2d at 787, making the notice of

appeal filed in district court untimely. The appeal should be dismissed for lack

of jurisdiction.

McDonald and May, JJ., join this dissent.