NUISANCE ABATEMENT AND MUNICIPAL INFRACTIONS - …



I. Municipal Authority to Abate Nuisances 1

A. State Law 1

B. Case Law re: Municipal Authority to Abate Nuisances 1

II. Municipal Authority Re: Municipal Infractions 2

A. State Law 2

B. Case Law re: Municipal Infractions 2

III. Instructions to City Staff 3

EXHIBIT A - Order to Abate Nuisance 8

EXHIBIT B – Letter to Complainant 9

EXHIBIT C – Citation for Municipal Infraction 10

EXHIBIT D – Confidential Information Form 12

EXHIBIT E – Verification and Aff Re: Military Service 13

EXHIBIT F – Proposed Settlement Agreement 14

EXHIBIT G – Clerk’s Certificate 16

EXHIBIT H – Order Accepting Settlement Agreement 17

EXHIBIT I - Report to the Court of Noncompliance 18

EXHIBIT J – Rule to Show Cause Application 20

EXHIBIT K – Rule to Show Cause Affidavit 22

EXHIBIT L – Rule to Show Cause Order 23

EXHIBIT M – Precipe 24

EXHIBIT N – Notice of Garnishment 25

EXHIBIT O – Letter to Clerk 26

EXHIBIT P – Letter to Sheriff 27

NUISANCE ABATEMENT AND MUNICIPAL INFRACTIONS

I. Municipal Authority to Abate Nuisances

A. State Law

Iowa Code (text of sections in appendix)

§364.12 Responsibility for public places

§80.39 Disposal of Personal Property

§321.89 Disposal of Vehicles

B. Case Law re: Municipal Authority to Abate Nuisances

City of Independence v. Purdy, 46 Iowa 202

Iowa,1877

A city has the right and power by resolution to require lots within the city limits upon which water becomes stagnant to be filled up by the owners thereof.

Bush v. City of Dubuque, 28 N.W. 542

Iowa,1886

A city has no right, without the owner's consent, to raise the grade of a lot higher than is necessary for the abatement of the nuisance caused by water stagnating there.

Sioux City v. Simmons Warehouse Co., 129 N.W. 978

Iowa,1911

Under Code, § 696, empowering cities to prevent annoyance from anything dangerous, offensive, or unhealthy, and to cause any nuisance to be abated, a city anticipating danger from the obstruction of a stream within its limits, may declare by a general ordinance that no structure shall be erected over the stream without leaving a specified area unobstructed for the flow of the water in its natural channel, provided the ordinance is reasonable; and one violating the ordinance must show that the requirement is unreasonable, and that his structure does not imperil the safety of the public as to free passage of the water of the stream at any stage, resulting from causes which may in their nature and extent be anticipated.

Wilson v. City of Ottumwa, 164 N.W. 613

Iowa,1917

The power conferred by Code Supp. 1913, § 696, authorizing municipal corporations to abate nuisances, can be exercised only in accordance with ordinance regularly and legally adopted.

Hancock v. City Council of City of Davenport, 392 N.W.2d 472

Iowa,1986

Municipality, in exercise of its police power, may declare and abate nuisances by adopting and enforcing reasonable ordinances, but power is subject to procedural due process requirements. U.S.C.A. Const.Amend. 14.

City of Iowa City v. Iowa Dist. Court for Johnson County, Iowa, 456 N.W.2d 178

Iowa,1990

Cities have authority to investigate, to declare, and to seek abatement of nuisances. I.C.A. § 364.1.

Kelley v. Story County Sheriff, 611 N.W.2d 475

Iowa,2000

While the police power is very broad, and not capable of exact definition, it is not boundless, and, as a rule, is subject to constitutional limitations, and while police power may allow public nuisances to be abated, in all such cases, the necessity for summary action must exist, and one who would justify on the ground of necessity must be able to convince a jury that the occasion was present which authorized his act.

Meyer v. Jones, 2005 WL 1186216

Iowa,2005

Before a city can declare a property a nuisance and order its abatement in a non-emergency situation, the city should inform the property owner of the city's declaration that a property is a nuisance, inform the owner of what the owner must do to prevent the city from abating the nuisance at the owner's expense, and provide the owner with a hearing to contest the declaration and abatement order.

II. Municipal Authority Re: Municipal Infractions

A. State Law

Iowa Code (text in appendix)

364.3. Limitation of powers

364.22. Municipal infractions (NOTE NEW ADDITIONS PER 2010 SF 434)

B. Case Law re: Municipal Infractions

PARKING OF VEHICLES, REMOVAL OF JUNK AND JUNK VEHICLES

CITY OF DES MOINES v. Stan GRUEN

457 N.W.2d 340 (Supreme Court of Iowa)

June 20, 1990, As Corrected Sept. 11, 1990.

Landowner was found guilty in the District Court, Polk County, Joel D. Novak, J., of violation of a municipal ordinance which restricts the parking and storage of lawfully unregistered vehicles to enclosed buildings, at least when such vehicles are parked and stored in a residential neighborhood. Landowner appealed. The Supreme Court, McGiverin, C.J., held that the ordinance was not "inconsistent" with the statute which provides that automobile dealers may lawfully possess unregistered vehicles under certain conditions, and thus, the ordinance did not violate the Home Rule Amendment.

Affirmed.

III. Instructions to City Staff

NUISANCE ABATEMENT – Process after City Staff have been unsuccessful in resolution of the matter with property owner

Prepare and serve Order to Abate nuisance

a. See Exhibit A hereto

b. Responsible party is the owner of the property, unless there is a contract of record, in which case the contract purchaser is the responsible party.

c. Serve the Order to Abate on the Responsible Party*

i. Personally delivered

ii. Certified mail (to address in county records)

iii. Send copy of Order to Abate to complaining citizen so they know the City has taken action. (See example Exhibit B hereto)

Note: Service is “complete” when it is either personally delivered, or when the certified mail is sent. It is not necessary to have proof of anyone receiving the certified mail.

2. Note date for compliance, inspect property.

3. If property not in compliance, make decision whether City will abate nuisance (if so, continue here), or if City will pursue municipal infraction (if so, skip to municipal infractions below). Most common abatement activities are for the removal of trash due to concerns that trash/refuse/rubbish will decompose causing health concerns, i.e. smell, rodents, etc.

4. If the City is going to abate the nuisance, no further notice is necessary, however most cities give one last notice, via regular mail or posting on the door, to alert the owner as to the date and time the City will come by to remove the junk or trash.

MUNICIPAL INFRACTIONS – Process to file with Court and Procedure

1. Fill out forms:

a. Citation – Municipal Infraction (Exhibit C hereto)

b. Verification of Debtor (Exhibit E hereto)

c. Confidential Information (Exhibit D hereto)

2. Take or mail forms to Clerk of Court; along with $10.00 per Defendant for the Clerk to serve the notice by certified mail. NO UP FRONT FILING FEE IS NECESSARY FOR A MUNICIPAL INFRACTION CITATION

a. If you send your documents to the Clerk by mail, be sure to enclose a self addressed, stamped envelope for them to send you a file stamped copy of all of your documents.

b. Notes on service of the Notice – any party not properly served will not be held responsible by the Court for the Municipal Infraction

i. Need $10.00 for each party being served. If it is a husband and wife, you will need enough for two persons. Each person named as a Defendant needs to get his/her own notice

ii. You cannot serve the Citation yourself. It is a violation of the Iowa Rules of Civil Procedure for a party (that’s you) to serve a notice. The notice must be served by the Clerk by certified mail or by a hired process server (private or County Sheriff). It is cheaper to serve by mail as a private process server costs $25.00 or more. If the certified mail is not accepted by the Defendant, you will need to hire a process server to serve the Citation.

iii. If the Clerk of court serves by certified mail, there is no need for you to file any proof of service. *

iv. If you have the Citation served by a hired process server, you will need to file a proof of service executed by them. If you use a private process server, they will prepare their own “proof of service” and give it to you. You will then need to file this with the Clerk before the trial date. If you use the Sheriff to serve, upon receiving payment of the fee, the Sheriff will file its own proof of service with the Clerk.

*Note: keep an eye on the return postcard in matters concerning husband and wife defendants. Each defendant must sign for their own copy of the citation. A spouse cannot sign for the other. Frequently the post office doesn’t pay attention to this, and you will lose one of the owners as a defendant for lack of good service.

3. If the Citation is served by Certified Mail, the Defendant has 20 days from the date they accepted the Certified Mail to respond to the Citation; if the Citation is served by a process server, the Defendant has 20 days from the date of service (make sure you get the proof of service on file – see above). The Defendant responds to the Citation by filing an Answer with the Clerk of Court (the Clerk will provide the Defendant with this form which gets served on the Defendant with the Citation).

4. If the Defendant does not file an Answer within the 20 days, the Clerk of Court will send the case up to the Judge to enter a default judgment. After the default judgment, you will want to contact the City Attorney for collection of the fine and/or contempt proceedings.

5. If the Defendant does file an Answer within the 20 days, the Clerk of Court will send you a copy of the Answer and an Order setting a trial date.

6. If a trial date it set, before trial you should enter into negotiations with the Defendant in an attempt to settle the case without having to go to trial. Acceptable settlement would be as follows: (See proposed Settlement Agreement enclosed herewith as Exhibit F)

a. Defendant pays the court costs (filing fee plus costs of service)

b. Defendant complies with the City Ordinance, and agrees to an order preventing future violations of the Ordinance

c. City agrees to “suspend” all or a portion of the $750 fine so long as Defendant does what he is supposed to do

d. If Defendant does not comply, the City will notify the Court and the fine (or remainder thereof) will be instated.

7. If you and the Defendant reach a settlement, phone the City Attorney to prepare the Settlement Agreement for your and the Defendants signatures. The City Attorney will send the Settlement Agreement to the Clerk of Court along with an Order (sample at Exhibit H hereto) for the Judge to sign accepting the Settlement Agreement. After this is done, and the Order is signed, no one will need to attend the trial.

8. If you and the Defendant do not reach a settlement agreement, you will need to appear at the trial.

9. At trial you may first be sent to Mediation (certain counties only) where you and the Defendant attempt to reach a settlement.

10. If Mediation is not successful, you will see the Judge and have a trial. Remember to bring all important documents with you for the trial in case the Mediation is not successful. These documents include everything you would need to prove the violation of the municipal ordinance such as:

a. Original complaint

b. Order to Abate Nuisance

c. Copies of letters sent to Defendants and received from them by you

d. Notes of phone conversations with the Defendants

e. Pictures taken at the original inspection

f. Pictures taken no more than a day or two before trial date

g. Copy of the City Code sections for Municipal Infraction, as well as the Code section that is being cited as the violation. Have the City Clerk certify a copy and ask the Judge to take judicial notice at trial (Exhibit G).

11. After entering all evidence at the trial, the Judge will either enter a ruling at that time or take it under advisement and mail the ruling to you at a later date.

12. Follow up as in the default judgment, call your City Attorney to assist with collection of the fine and court costs, or contempt of court proceedings.

a. Exhibit I “Report to the Court”

b. Exhibits J, K and L regarding contempt

c. Exhibits M, N, O, and P regarding garnishment of bank accounts or pay from employer.

EXHIBIT A - Order to Abate Nuisance

CITY OF SHELLSBURG, IOWA

ORDER TO ABATE NUISANCE

You are hereby ordered and required as owner, agent, lessee, or occupant of the premises known as, 705 Main Street NW, Shellsburg, Iowa to cease and abate a nuisance.

The nuisance consists of: ___________________________________________________

________________________________________________________________________

________________________________________________________________________

The nuisance shall be abated by: _____________________________________________

________________________________________________________________________

________________________________________________________________________

You have until _________________ to abate this nuisance.

You may request a hearing before the City Council. Said request must be in writing and delivered to the City Clerk within 5 days from the date of this order or it will be conclusively presumed that a nuisance exists and that it must be abated as ordered.

If the nuisance is not abated as directed and no request for hearing is made within the time prescribed, the City may abate the nuisance and assess the costs against the property for collection in the same manner as a property tax or may proceed with the institution of a municipal infraction. The penalties for municipal infractions are $750.00 for the first offense, $1,000.00 for the second and subsequent offenses.

________________ _______________________________________

Date Neal Caraway

Code Compliance Officer

EXHIBIT B – Letter to Complainant

|ALLEN, VERNON & HOSKINS, P.L.C. | |Donald C. Hoskins |

|Attorneys and Counselors at Law | |Jeffrey K. Robison |

|1175 8th Avenue, P.O. Box 488 | |Anne E.H. Loomis |

|Marion, IA 52302 | |Anne K. Wilson |

|319-377-2022 | |Morris L. Allen, Retired |

|319-377-9441 |Writer’s Email: |John G. Vernon, Retired |

|319-377-9405 |AHosk1207@ |Gordon R. Gibson, Retired |

|Fax 319-377-8147 | | |

September 26, 2011

Ron Tuttle and Brenda Tuttle

1003 Grubbs Street

Center Point, IA 52213

RE: Loose dog, et. al.

Dear Mr. and Mrs. Tuttle:

Enclosed is an Order to Abate that is being served on the property owner for 1007 North View Drive in regard to the dog running loose, leaving feces and growling at neighbors.

Please keep track of whether or not you are experiencing the same problems after the deadline (September 20th) and let me know so I can take further steps, if necessary.

Sincerely,

Anne E.H. Loomis

AL:js

Enc.

Cc: City Clerk

EXHIBIT C – Citation for Municipal Infraction

CITATION

MUNICIPAL INFRACTION

VIOLATION OF AN ORDINANCE OF THE CITY OF MARION

THE CITY OF MARION )

C/O Anne E.H. Loomis )

P.O. Box 488, Marion, IA 52302 )

Plaintiff ) NO. CISC __________

-vs.- )

)

______________________________ )

______________________________ )

______________________________ )

Defendant(s) )

I, THE UNDERSIGNED, STATE THAT THE DEFENDANT(S) DID VIOLATE CHAPTER/ ORDINANCE ________ OF THE MARION MUNICIPAL CODE WITHIN THE CORPORATE LIMITS OF THE CITY OF MARION, LINN COUNTY, IOWA, AS FOLLOWS:

The Defendant(s) own property located at _________________, Marion, Iowa, legally described as:

(INSERT LEGAL DESCRIPTION)

Defendant(s) has/have ___________________________________________________

______________________________________________________________________

______________________________________________________________________

______________________________________________________________________

THE CITY OF MARION, AS PLAINTIFF, SEEKS THE FOLLOWING:

A. The Defendant(s) be assessed a civil penalties pursuant to Marion City Ordinance of $750.00 for each day of violation after the date of this citation, (total not to exceed the limits of small claims court, $5,000.00); plus court costs.

B. The Defendant(s) be ordered to comply with the city code of ordinances by: ______

______________________________________________________________________

______________________________________________________________________

C. The Defendant(s) be enjoined and restrained from future violations of Chapter/Ordinance _____ or be subject to appropriate contempt proceedings.

TO ANSWER THE CHARGES OF THIS CITATION, DEFENDANT(S) MUST EACH FILE AN APPEARANCE IN THE COURT AT SMALL CLAIMS DIVISION, LINN COUNTY COURTHOUSE, THIRD AVENUE BRIDGE, CEDAR RAPIDS, IOWA WITHIN TWENTY (20) DAYS OF THE RECEIPT OF THIS NOTICE.

FAILURE TO APPEAR WITHOUT GOOD CAUSE WILL RESULT IN A JUDGMENT BEING ENTERED AGAINST THE DEFENDANT(S) FOR THE CIVIL PENALTY PLUS COURT COSTS AND AN ORDER TO REMEDY THE VIOLATION AND ENJOIN DEFENDANT(S) FROM VIOLATING THE ORDINANCE IN THE FUTURE.

CIVIL PENALTY MAY BE PAID BY MAKING PAYMENT OF THE AMOUNT REQUESTED TO THE CITY OF MARION BY DELIVERING SAME TO THE MARION CITY HALL, 1100 8TH AVENUE, MARION, IOWA 52302 AT ANY TIME PRIOR TO THE COURT APPEARANCE.

IF you require the assistance of auxiliary aids or services to participate in court because of a disability, immediately call your district ADA coordinator at 1-319-398-3920 ext. 200. (If you are hearing impaired, call Relay Iowa TTY at 1-800-735-2942.)

__________________________________________

(insert name and title)

City of Marion

EXHIBIT D – Confidential Information Form

IOWA DISTRICT COURT IN AND FOR LINN COUNTY

SMALL CLAIMS DIVISION

CITY OF MARION, IOWA, )

Plaintiff, ) NO. CISC _________

)

v. ) CONFIDENTIAL INFORMATION

) FORM

________________________________, )

Defendant. )

Personal Identification Number

Name (Social Security Number or Employer I.D. Number)

Plaintiff(s) 1.City of Marion _________________________________

(City Employer Identification Number)

Defendant(s) 1. ____________________ _______________________________________

2. ____________________ _______________________________________

Other Party 1. ____________________ _______________________________________

2. ____________________ _______________________________________

Information supplied by __________________________________________________________

(print or type)

______________________________________ _______________________________________

Signature Date

EXHIBIT E – Verification and Aff Re: Military Service

IN THE IOWA DISTRICT COURT IN AND FOR LINN COUNTY

(SMALL CLAIMS DIVISION)

CITY OF MARION, IOWA )

) NO. CISC ___________

Plaintiff )

-vs.- ) VERIFICATION OF ACCOUNT

) IDENTIFICATION OF JUDGMENT

_______________________________ ) DEBTOR AND AFFIDAVIT RE

_______________________________ ) MILITARY SERVICE

_______________________________ )

Defendant(s) )

STATE OF IOWA )

)ss:

COUNTY OF LINN )

I, the undersigned, being first duly sworn, on oath state that I am the Plaintiff or Attorney for Plaintiff in the above entitled matter and I hereby state that the allegations contained in the Petition are true and correct and I further specifically state that the Defendants have violated the City of Marion municipal code of ordinances as described in the Citation filed herein and that this verification and affidavit is made pursuant to the provision set out in Section 631.10 of the 2005 Code of Iowa; that there have been no payments made on the fine thereon, except as shown in the statement attached, and that the balance shown due thereon is true and correct and is the property of the creditor and remains past due and wholly unpaid.

I further state that ________________________________, the Defendant(s) resides at _______________________________________________ and that _______________________________, the Defendant(s) is employed at _________________________________, and that said Defendant or Defendants is/are not member(s) of the Military Forces of the United states Government, and to the best of my knowledge is/are not under any legal disability or prisoner in any reformatory or penitentiary.

If you require the assistance of auxiliary aids or services to participate in court because of a disability, immediately call your district ADA coordinator at 1-319-398-3920 ext. 200. (If you are hearing impaired, call Relay Iowa TTY at 1-800-735-2942.)

_____________________________________________________________

City of Marion, Iowa, Plaintiff

By Anne E.H. Loomis, Assistant City Attorney

1175 8TH Avenue., Marion, IA 52302

319-377-9405; 319-377-9406 (fax)

Subscribed and sworn to before me the undersigned this _____ day of September, 2011.

_____________________________________________________________

Notary Public in and for the State of Iowa

EXHIBIT F – Proposed Settlement Agreement

IOWA DISTRICT COURT IN AND FOR LINN COUNTY

SMALL CLAIMS DIVISION

THE CITY OF MARION, IOWA, )

)

Plaintiff, ) NO. CISC 119134

)

v. ) SETTLEMENT OF PARTIES

)

___________________, )

)

Defendant. )

COME NOW, the undersigned parties and do hereby agree that, subject to approval of Court, the following writing shall establish the settlement of all issues in the above captioned matter:

FACTS

Defendants own property located at 855 Alpine Road, Marion, Iowa. Defendants have failed to repair the sidewalk as requested by City of Marion personnel in violation of Marion Municipal Ordinance 141.05. Defendants have agreed to remedy this situation and the parties desire to settle this matter without further hearing by the court.

AGREEMENT

1. Defendants shall make repair to the sidewalk so as to comply with Marion Municipal Code Chapter 141 at the addresses listed above no later than November 30, 2005.

2. Defendants agree to pay the court costs of this proceeding to the Clerk of Court and $50.00 of the fine to the Plaintiff, paid upon execution of this Settlement Agreement. Plaintiff’s signature hereto is acknowledgment of receipt of this sum from Defendants.

3. In consideration for the foregoing, Plaintiff shall suspend the (remaining) civil penalty of $450.00 until completion of the agreement in paragraph 1 above.

4. Defendants agree that in the event they do not make repair to the sidewalk by the date as shown in paragraph 1 above, upon notification of said condition by the Plaintiff, the Court shall enter a judgment, without further opportunity for notice and hearing, in the amount of the remaining civil penalty of $450.00, plus any additional court costs incurred.

WHEREFORE, the undersigned respectfully request the Court to accept the above detailed Settlement Agreement, and enter an Order incorporating same.

Dated: ____________ Dated: __________

City of Marion

By: ________________________________ ______________________________

, Defendant

EXHIBIT G – Clerk’s Certificate

CERTIFICATE OF CITY CLERK

STATE OF IOWA, COUNTY OF LINN, SS:

I, Wesley A. Nelson, being first duly sworn, do hereby depose and certify that I am the duly appointed, qualified and acting City Clerk of the City of Marion, in the County of Linn, State of Iowa, and that as such I have in my possession, or have access to, the complete corporate records of said City and of its council and officers; that attached hereto is a true and accurate copy of:

Marion Code of Ordinances, Chapter 52

Witness my name and corporate seal of said City hereto affixed at Marion, Iowa, this _____ day of September, 2011.

____________________________

Wesley A. Nelson, City Clerk

(seal)

Subscribed and sworn to before me by Wesley A Nelson, City Clerk, this ______ day of September, 2011.

______________________________________

Notary Public in and for said State

EXHIBIT H – Order Accepting Settlement Agreement

IOWA DISTRICT COURT IN AND FOR LINN COUNTY

SMALL CLAIMS DIVISION

THE CITY OF MARION, IOWA, )

Plaintiff, ) NO. CISC 117731

)

v. ) ORDER

)

JACK BRANDMILL, )

Defendant. )

NOW, on this ______ day of September, 2011 the Settlement Agreement of the above named parties coming before the court on the matter of the municipal infraction.

Pursuant to said agreement, the Court Orders the following:

1. The Defendant shall remedy all Marion Municipal Code §153.6 violations by installing siding over the entire surface of the house exterior, including all trim; doors and windows should be painted (windows should not be just painted over as they are now), all work to be completed no later than August 30, 2001.

2. The Defendant is enjoined from further violations of Marion Municipal Code §153.6 as to the property located at 635 4th Avenue, Marion, Iowa, said injunction to expire 5 years after the execution of this Order at which time this case shall be dismissed;

3. The Court imposes a civil penalty of $500.00, plus $50.00 for court costs, however, said penalty is suspended pending compliance by Defendant. If Defendant complies with paragraphs 1 and 2 he shall not have to pay the civil penalty or court costs of this action;

4. The City of Marion shall file a written report with the Court, giving Defendant a copy, should Defendant not comply with paragraphs 1 or 2 above requesting the imposition of the civil penalty and court costs.

Clerk to Notify.

________________________________________________

DISTRICT ASSOCIATE JUDGE

EXHIBIT I - Report to the Court of Noncompliance

IOWA DISTRICT COURT IN AND FOR LINN COUNTY

SMALL CLAIMS DIVISION

THE CITY OF MARION, IOWA, )

)

Plaintiff, ) NO. CISC 148143

)

v. ) REPORT BY PLAINTIFF

)

ROBERT C. TIERNAN & )

REGINA LOU TIERNAN )

)

Defendants. )

COMES NOW, Plaintiff and in report to the court states that since the original court date and date of Court’s Order (August 2, 2005) counsel for Plaintiff has had no contact from Defendants or their counsel, that Defendants made cursory inquiry with staff at the City of Marion, but have not applied for a building permit, nor have they begun any work on the garage structure to bring it into compliance with City ordinances, nor have they made any agreement with City staff or counsel for the City as to the work to be done to the structure.

WHEREFORE, Plaintiff respectfully requests the Court enter an order:

a. granting Plaintiff the relief sought in it’s original citation, to wit, that the Defendants be ordered to either move or tear down the garage so as to bring it into compliance with the City of Marion Zoning Ordinances

b. that Defendants be enjoined for a period of two years from further violations of the Zoning Ordinances at this address

c. that Defendants be fined $500.00 for each day that the violation of the City of Marion Zoning Ordinances has been found by the Court to exist

d. that Defendants be ordered to pay the costs of this action and for such further relief as is just in the premises.

_______________________________________

Anne E.H. Loomis LI 0013827

Allen, Vernon, & Hoskins, P.L.C.

1175 8th Avenue

Marion, Iowa 52302

319-377-9405, fax 319-377-9406

ATTORNEY FOR PLAINTIFF

Copy to: __________________________

CERTIFICATE OF SERVICE

I certify that I mailed/hand delivered/fax transmitted a copy of the foregoing

document to which this certificate is attached to the parties or their attorneys

of record on September ____, 2011.

______________________________________________________________

EXHIBIT J – Rule to Show Cause Application

IN THE IOWA DISTRICT COURT FOR LINN COUNTY

SMALL CLAIMS DIVISION

THE CITY OF CENTER POINT )

)

Plaintiff ) NO. CISC 140622

-vs.- )

)

DAMON WEEMS AND TRACY WEEMS ) APPLICATION FOR

219 SOUTH HILLCREST CIRCLE ) RULE TO SHOW CAUSE

CENTER POINT, IA 52213 )

)

Defendant )

COMES NOW the Plaintiff, by counsel, and for Application for a Citation in Contempt of Court, states to the court as follows:

1. On November 4, 2004 the Court entered an order as follows:

“It is therefore ORDERED that judgment enter against the DEFENDANTS DAMON WEEMS AND TRACY WEEMS for violation of City of Center Point Municipal Code Section 55.06. The DEFENDANTS are now ORDERED to pay a civil penalty of $500. Payment of the civil penalty is suspended for a period of SIX MONTHS, conditioned upon no further violations of Municipal Code Section 55.06, 55.08, 55.09. In the event there are further violations, the Defendants shall be subject to contempt of court, in addition to having to pay the civil penalty.”

2. On or about January 25, 2005 Defendants allowed their dog to run at large off the premises of the Weems’ (Defendant’s) residence, without proper restraint or control and allowed their dog to pass upon the premises of another thereby causing interference with the premises on the property at 213 S. Hillcrest Circle, Center Point Iowa by leaving feces on that property, in violation of Center Point Ordinances 55.06, 55.08 and 55.09.

3. That Defendants have willfully disregarded the Court’s Order of November 4, 2004.

WHEREFORE the Petitioner prays that this matter be set for hearing to enable the Defendants to show cause why they should not be cited and punished for contempt for failure to comply with the Order of this Court; that notice be given to them and they be cited and punished by the court for their contempt and that they be ordered to pay to the City of Center Point the fine as was suspended in the original proceeding, and for such further relief as is just in the premises.

City of Center Point, Plaintiff

_______________________________________

Anne E.H. Loomis LI 0013827

Allen, Vernon & Hoskins, PLC

1175 8th Avenue

Marion, Iowa 52302

319-377-9405, fax 319-377-9406

Copy to: Damon Weems

Tracy Weems

CERTIFICATE OF SERVICE

I certify that I mailed/hand delivered/

fax transmitted a copy of the foregoing

document to which this certificate is

attached to the parties or their attorneys

of record on the _____ day of September,

2011.

_______________________________________

EXHIBIT K – Rule to Show Cause Affidavit

IN THE IOWA DISTRICT COURT FOR LINN COUNTY

SMALL CLAIMS DIVISION

THE CITY OF CENTER POINT )

)

Plaintiff ) NO. CISC 140622

-vs.- )

)

DAMON WEEMS AND TRACY WEEMS ) AFFIDAVIT IN SUPPORT

219 SOUTH HILLCREST CIRCLE ) OF APPLICATION FOR

CENTER POINT, IA 52213 ) RULE TO SHOW CAUSE

)

Defendant )

STATE OF IOWA, COUNTY OF LINN ) ss

I, Joel Smith, being first duly sworn on oath, depose and state as follows:

1. I am the neighbor of the Defendants, having a residence at 213 S. Hillcrest Circle, Center Point, Iowa.

2. That on or about January 25, 2005 and other dates since the Court’s Order of November 4, 2004 I have witnessed the Weems dog running loose off their property without proper restraint or control, and that the dog has been on my property and has left feces there. I have pictures of the dog’s tracks in the snow showing that it traveled from its yard, into my yard, and left a fecal deposit.

______________________________

Joel Smith

Subscribed and sworn to before me by Joel Smith this _____ day of September, 2011.

__________________________________________

Notary Public in and for the State of Iowa

COPY TO:

CERTIFICATE OF SERVICE

I certify that I mailed/hand delivered/

fax transmitted a copy of the foregoing

document to which this certificate is

attached to the parties or their attorneys

of record on the _____ day of September,

2011.

_______________________________________

EXHIBIT L – Rule to Show Cause Order

IN THE IOWA DISTRICT COURT FOR LINN COUNTY

SMALL CLAIMS DIVISION

THE CITY OF CENTER POINT )

)

Plaintiff ) NO. CISC 140622

-vs.- )

)

DAMON WEEMS AND TRACY WEEMS )

219 SOUTH HILLCREST CIRCLE )

CENTER POINT, IA 52213 ) RULE TO SHOW CAUSE

)

Defendant )

NOW, on this ______ day of September, 2011 this matter comes before the court on the Application of the Plaintiff requesting that the Defendants be required to show cause, the court having reviewed said Application and being fully advised in the premises finds that the matter should be set for hearing; that notice be given to the Defendants, that they be given the opportunity to show cause why they should not be cited for contempt and punished accordingly.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Defendants are, and they are hereby ordered to appear before a Judge of this court on the ____ day of ____________, 200___ at _________ o'clock ___.m. at the Linn County Courthouse, Cedar Rapids, Iowa to show cause why they should not be punished for their contempt for failing to comply with the Court’s Order entered herein.

IT IS FURTHER ORDERED that a copy of this Rule to Show Cause and a copy of said Application be served upon the Defendants in the manner of service of an Original Notice at least 10 days before the date of said hearing.

________________________________________________

JUDGE OF THE SIXTH JUDICIAL DISTRICT OF IOWA

EXHIBIT M – Precipe

IOWA DISTRICT COURT IN AND FOR LINN COUNTY

SMALL CLAIMS DIVISION

, )

Plaintiff, ) NO. SCSC ______

)

v. ) PRECIPE

)

, )

Defendant. )

STATE OF IOWA )

) ss:

LINN COUNTY )

TO THE LINN COUNTY CLERK OF COURT:

Please issue general execution to the Linn County Sheriff on the judgment rendered herein. I certify that I am the attorney for the Plaintiff and that there is due and owing on said judgment the principal sum of $________, plus interest, of $__________ calculated from the ____ day of _________, _____ at the rate of ____ percent per annum for a total due of $________.

DATED: September 26, 2011

_______________________________________

Anne E.H. Loomis AT0004871

Allen, Vernon & Hoskins, P.L.C.

1175 8th Avenue, P.O. Box 488

Marion, Iowa 52302

319-377-9405, fax 319-377-8147

AHosk1207@

ATTORNEY FOR PLAINTIFF

Subscribed and sworn to before me on this ______ day of _____________________, 200___.

_____________________________

NOTARY PUBLIC

EXHIBIT N – Notice of Garnishment

IOWA DISTRICT COURT IN AND FOR LINN COUNTY

SMALL CLAIMS DIVISION

__________________ )

Plaintiff, ) NO. SCSC _________

) NOTICE OF GARNISHMENT

v. )

)

______________________, )

Defendant. )

TO THE ABOVE NAMED DEFENDANT:

YOU ARE HEREBY NOTIFIED that a Garnishment was issued based upon a Judgment against you and the Garnishment was served on Mike McGrath Auto Center, 4610 Center Point Road NE, Cedar Rapids, Iowa who has answered that it is indebted to you.

YOU ARE FURTHER NOTIFIED that unless you file a Motion or Answer or other appropriate pleading to contest the Garnishment within ten (10) days from the Date this Notice was served upon you explaining why you think these funds are exempt from execution under state or federal law, a Court Order will be entered condemning the funds and that the funds will be applied against the Judgment. Some examples of exempt funds may include social security benefits A.F.D.C., general assistance, veteran’s benefits and unemployment compensation. These examples are not complete list are not meant to be.

ANY Motion or Answer or other pleading that you file to contest the Garnishment must be filed in the office of the Clerk of the Linn County District Court (small claims division) at the Linn County Courthouse located at Cedar Rapids. If you file to contest the garnishment a prompt hearing will be set and you will be notified of the hearing. At the hearing you should be ready to explain to the Judge why you believe your property is exempt from the Garnishment.

Section 642.14 of the Iowa Code requires that you be told the exact language of Section 630.3A of the Iowa Code. That Section reads:

At any time after the rendition of judgment the court, upon application of the judgment creditor or the judgment debtor and upon notice of the adverse party as the court shall direct, shall conduct a hearing to determine the reasonably expected annual earnings of the judgment debtor for the current calendar year and the applicable limitation upon garnishment as provided in Section 642.21. The court shall also consider in the interest of justice whether a greater amount than provided in Section 642.21 shall be exempt from garnishment. In making the determination, the court shall consider the age number and circumstances of the dependents of the debtor, existing federal poverty guidelines, the debtor's maintenance and support needs, the debtor's other financial obligations and any other relevant information. An order reducing the garnishment may be modified or vacated upon application of a part to the court, notice to the adverse party and a showing at a hearing of changed circumstances. An additional filing fee shall not be assessed for proceedings under this section.

YOU MAY WISH TO CONSULT A LAWYER FOR ADVICE AS TO THE MEANING OF THIS NOTICE.

_______________________________________

Anne E.H. Loomis AT0004871

Allen, Vernon & Hoskins, P.L.C.

1175 8th Avenue, P.O. Box 488

Marion, Iowa 52302

319-377-9405, fax 319-377-8147

AHosk1207@

ATTORNEY FOR PLAINTIFF

EXHIBIT O – Letter to Clerk

|ALLEN, VERNON & HOSKINS, P.L.C. | |Donald C. Hoskins |

|Attorneys and Counselors at Law | |Jeffrey K. Robison |

|1175 8th Avenue, P.O. Box 488 | |Anne E.H. Loomis |

|Marion, IA 52302 | |Anne K. Wilson |

| 319-377-2022 |Sender’s Email: |Morris L. Allen, Retired |

|319-377-9441 |AHosk1207@ |John G. Vernon, Retired |

|319-377-9405 | |Gordon R. Gibson, Retired |

|Fax 319-377-8147 | | |

September 26, 2011

Linn County Clerk of Court

Linn County Courthouse

PO Box 1468

Cedar Rapids, IA 52406

RE: Parker Plumbing v. Abben Construction et. al.

SCSC 158932

Ladies and Gentlemen:

Enclosed please find in duplicate a Precipe in the above-entitled matter. Please file this document and return a file marked copy to the undersigned in the enclosed envelope. Also enclosed is a Notice of Garnishment, in duplicate, and a letter of direction to the Jones County Sheriff with envelope.

Please forward the Notice of Garnishment to the Sheriff along with the writ of execution and the letter of directions. Thank you for your assistance. If you have any questions, please call.

Sincerely,

Anne E.H. Loomis

AEHH:js

Enc.

EXHIBIT P – Letter to Sheriff

|ALLEN, VERNON & HOSKINS, P.L.C. | |Donald C. Hoskins |

|Attorneys and Counselors at Law | |Jeffrey K. Robison |

|1175 8th Avenue, P.O. Box 488 | |Anne E.H. Loomis |

|Marion, IA 52302 | |Anne K. Wilson |

| 319-377-2022 |Sender’s Email: |Morris L. Allen, Of Counsel |

|319-377-9441 |AHosk1207@ |John G. Vernon, Retired |

|319-377-9405 | |Gordon R. Gibson, Retired |

|Fax 319-377-8147 | | |

September 26, 2011

Linn County Sheriff

P.O. BOX 669

Cedar Rapids, IA 52406

RE: Enterprises vs Defendant

SCSC _______

Ladies and Gentlemen:

The Linn County Clerk of Court has forwarded to you a general execution in the above-entitled action. Please commence the following collection action:

Garnish the account of [Defendant] at Bank of the West, f/k/a Commercial Federal Bank, _____________________________________________, Cedar Rapids, Iowa.

We enclose in duplicate a Notice of Garnishment to be served on the defendant.

Thank you for your assistance. If you have any questions, please call.

Sincerely,

Anne E.H. Loomis

AEHH:js

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