Proper to assess court costs against defendant who abates nuisance

by Gary Taylor

City of Des Moines v. Amerson
(Iowa Court of Appeals, April 13, 2011)

On February 5, 2009, the Des Moines city attorney’s office filed a petition alleging Amerson’s garage was structurally unsound and constituted a public nuisance. The petition asserted that the garage should be immediately emptied and the nuisance should be abated at the owner’s expense. The petition further urged that if Amerson did not abate the nuisance in the time ordered by the court that the city be authorized to enter Amerson’s property and demolish the structure.

A process server unsuccessfully tried to serve Amerson five times between February 24, 2009, and May 12, 2009. On May 26, 2009, the city asked for permission to serve Amerson by the alternative means of publication, which the court granted.

On June 9, 2009, Amerson filed a pro se pre-answer motion, asking to dismiss the action and to disqualify the judge. She alleged that the city had been harassing her for years through the use of its nuisance ordinances. On July 10, 2009, the district court denied the motion to dismiss and the motion for recusal.

On March 1, 2010, Amerson filed a second pre-answer motion to dismiss, alleging—among other things—that her garage was demolished in late June 2009. Amerson also attached to the motion an invoice sent to her by the city on February 18, 2010, demanding that she reimburse the city for $480 in charges incurred as a result of its administrative or legal action taken against her property. The charges included $200 for legal inspections; $30 for photographs; $125 for a title search; $25 for a service fee; and $100 in court costs. The invoice explained that her failure to pay the costs by March 20, 2010, would result in an assessment to Amerson’s property.

On March 3, 2010, the city voluntarily dismissed its cause of action, noting that Amerson’s property was “brought into compliance” with the municipal code.  The city, however, still pursued collection of costs and fees associated with the cause of action.  Amerson challenged the district court’s assessment of those costs against her.

Iowa Code 625.1 provides that costs “shall be recovered by the successful against the losing party.” Iowa Code 625.11 states that “[w]hen a plaintiff dismisses the action . . . judgment for costs may be rendered against such plaintiff . . . .” The Court of Appeals observed that the general rule in Iowa has long been that when a plaintiff voluntarily dismisses the suit, it is error to require the defendant to pay costs, but that does not apply when the plaintiff dismisses the lawsuit solely because the purpose of the suit has been achieved. In this public nuisance action, the city was the successful party because Amerson abated the nuisance by demolishing her garage “while the suit was pending and most likely because the suit was pending.”  The Court of Appeals concluded that it was proper for the district court to tax Amerson with the costs associated with the court action.

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