                   IN THE SUPREME COURT OF IOWA
                             No. 123 / 06-0194

                         Filed December 29, 2006

CITY OF DUBUQUE,

      Plaintiff,

vs.

IOWA DISTRICT COURT FOR
DUBUQUE COUNTY,

      Defendant.

________________________________________________________________________
      Certiorari to the Iowa District Court for Dubuque County, Monica

L. Ackley, Judge.



      A city sought writ of certiorari to challenge contempt order arising

out of alleged violation of district court order. WRIT SUSTAINED.



      Frank Murray Smith of Frank Smith Law Office, Des Moines, and

Mark McCormick of Belin Lamson McCormick Zumbach Flynn, P.C.,

Des Moines, for plaintiff.



      Thomas Henderson, John F. Fatino, and Jeffrey D. Ewoldt of

Whitfield & Eddy, P.L.C., Des Moines, for defendant.



      Thomas J. Miller, Attorney General, and Michael H. Smith,

Assistant Attorney General, for amicus curiae City Development Board.
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STREIT, Justice.

      The City of Dubuque complains it has been found in contempt of a

court order that did not order it to do anything. After a district court

invalidated Dubuque’s annexation of adjacent land and remanded the

case to a state board handling such matters, the city claimed the

annexation was still “in effect” and proceeded to provide services to the

residents in the territory pending further review by this court.      This

action got Dubuque into hot water with the trial court, who found the

city in contempt of the ruling annulling the annexation. We find

Dubuque’s actions were not in violation of the district court’s order,

which simply remanded the case to the City Development Board. It was

error to hold Dubuque in contempt. We sustain Dubuque’s writ.

      I.    Facts and Prior Proceedings

      Dubuque and Asbury are involved in an acrimonious dispute over

common ground both cities wish to annex.          After denying Asbury’s

application for voluntary annexation, the City Development Board

(“CDB”) approved Dubuque’s annexation application on July 6, 2004.

Asbury appealed the CDB’s decision to the district court on August 5,

2004. Asbury’s petition for judicial review requested the district court to

stay the implementation of the CDB’s ruling and reverse the CDB’s

approval of Dubuque’s annexation. Dubuque intervened and joined the

CDB in resisting Asbury’s requests. On February 8, 2005, the district

court denied Asbury’s request for stay.

      On February 24, 2005, the CDB filed its July 6, 2004 decision

approving Dubuque’s annexation with the Iowa Secretary of State and
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Dubuque County Recorder. 1          Since this time, Dubuque has exercised

jurisdiction over the annexation territory.

      On April 20, 2005, the district court held Dubuque’s annexation

was invalid and remanded the case to the CDB “for action consistent

with this ruling.”

      Following the district court’s decision, the CDB took no action

other than filing an appeal on May 18, 2005.               Dubuque filed its own

appeal.

      On May 12, 2005, Dubuque sent a letter to each of the property

owners in the affected territory. The letters stated:

      The State of Iowa City Development Board has approved the
      City of Dubuque’s plan for annexation of approximately 704
      acres west of Dubuque, which includes your property. The
      Board filed its decision with the Secretary of State and the
      Dubuque County Recorder on February 24, 2005. This
      makes the annexation territory (which includes your
      property) officially a part of the City of Dubuque as of
      February 24, 2005.

      The City of Asbury filed an appeal of the Board’s decision in
      District Court. Even though the District Court has disagreed
      with the City Development Board’s approval, the annexation
      is still in effect, and is being reviewed by the Iowa Supreme
      Court. It can take up to 18 months for an appeal to be
      processed through the Iowa Supreme Court. This means
      that your land will continue to be part of Dubuque unless
      the Supreme Court decides otherwise.

       1Under Iowa Code section 368.7(3) (2005), “[t]he annexation is completed when

the [CDB] has filed and recorded copies of applicable portions of the proceedings as
required by section 368.20, subsection 2.” Section 368.20(2) requires the CDB to:

      File with the secretary of state . . . copies of the proceedings including
      the original petition or plan and any amendments, the order of the board
      approving the petition or plan, proofs of service and publication of
      required notices, certification of the election result, and any other
      material deemed by the board to be of primary importance to the
      proceedings. Upon proper filing and expiration of time for appeal, the
      incorporation, discontinuance, or boundary adjustment is complete.
      However, if an appeal to any of the proceedings is pending, completion
      does not occur until the appeal is decided, unless a subsequent date is
      provided in the proposal.
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The letter also included a schedule concerning the implementation of city

services. For example, police, fire, and 911 emergency services became

effective immediately.    City addresses and garbage and storm water

services took effect in July 2005.

      On May 18, 2005, Dubuque Building Services Manager sent a

letter to Mr. and Mrs. Francis McDonald which stated:

      I have been advised by the City Attorney that the City of
      Dubuque is considering the annexation to still be effective
      and the address assigned previously should be used.

      Your new address will be 6000 Pennsylvania Avenue,
      Dubuque, IA 52002. This new address will be effective July
      1, 2005.

      On May 31, 2005, Dubuque Public Works Director sent letters to

each of the property owners in the affected territory advising them of the

public work services Dubuque would be providing to the annexation

area, including street maintenance and solid waste collection.         The

letters stated in part:

      Regarding solid water collection, we have contacted the
      private firms currently providing service in your area. We
      have notified them that the City of Dubuque will replace
      them and provide your solid waste collection service starting
      July 7th and on every Thursday thereafter. . . . The $8.70
      monthly base fee is mandatory for all City single-family
      residences. . . .

      [Regarding stormwater management,] [t]he average fee for a
      single family household, effective July 1st, is $1.79 per
      month. . . .
      On June 17, 2005, Asbury initiated a contempt proceeding alleging

Dubuque, by exercising jurisdiction over the annexation territory after

April 20, 2005, was in contempt of the district court’s order. On January

30, 2006, the court found Dubuque in contempt and directed Dubuque

to cease and desist providing city services to the residents in the annexed
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area.     The court gave Dubuque thirty days to comply and ordered

Dubuque to pay Asbury’s attorney fees and costs.

        On February 7, 2006, Dubuque filed this petition for writ of

certiorari and request for immediate stay of the district court’s January

30, 2006 contempt ruling.          This court entered an order granting

certiorari and an immediate stay on February 24, 2006.
        II.    Standard of Review

        Certiorari is an action at law; therefore our review is for correction

of errors at law, not de novo. In re Inspection of Titan Tire, 637 N.W.2d

135, 140 (Iowa 2001).

        III.   Merits

        The district court found Dubuque in contempt because it

unlawfully provided services to the residents in the territory that is the

subject of this action. The court said “[t]he area rightfully should revert

to the auspices of the County of Dubuque for it to resume the exercise of

authority over the area since the Board’s decision has no legal effect.”

Dubuque argues the district court’s earlier order invalidating the

annexation did not prohibit Dubuque from exercising authority over the

annexed area.      Moreover, Dubuque contends it was not required to

relinquish jurisdiction over the annexed territory unless or until the CDB

entered an order on remand.        Dubuque also claims the district court

lacked authority to award attorney fees to Asbury.

        We need not decide whether the district court was correct in

holding Dubuque should not have extended services to the territory after

the court found Dubuque’s annexation invalid.         Even if the court was

correct, Dubuque was not in contempt because the district court’s

original order did not impose any duties on Dubuque.            We need not
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address the court’s authority to award attorney fees in a contempt

action.

      Contempt actions are adjudicated to determine whether the alleged

contemner acted in willful disobedience of a court order beyond a

reasonable doubt. French v. Iowa Dist. Ct., 546 N.W.2d 911, 914 (Iowa

1996) (citing State v. Lipcamon, 483 N.W.2d 605, 606–07 (Iowa 1992)).

“‘Willful disobedience’ requires evidence of conduct that is intentional

and deliberate with bad or evil purpose, or wanton and in disregard of

the rights of others, or contrary to a known duty, or unauthorized,

coupled with an unconcern whether the contemner had the right or not.”

McKinley v. Iowa Dist. Ct., 542 N.W.2d 822, 824 (Iowa 1996) (quoting

Ervin v. Iowa Dist. Ct., 495 N.W.2d 742, 744 (Iowa 1993)).

      The ruling by the trial court in this case did not clearly prohibit

what was done by Dubuque. In the contempt order, the district court

stated:

      The court has determined that the board’s decision was not
      proper and therefore the July 2004 decision that was
      registered with the Secretary of State and the Dubuque
      County Recorder has no force and effect. The court required
      that the matter be remanded to the Board for “action
      consistent with this ruling.” The ruling impliedly means the
      process must start over to correct the error found, i.e.
      coercive conduct to justify a voluntary annexation.

Even if the district court’s analysis is correct, the fact remains the

district court’s original order was not directed at Dubuque.     The only

order the court made in the original order was as follows:

      IT IS THEREFORE ORDERED that the decision of the Iowa
      City Development Board dated July 6, 2004, is reversed and
      the matter is remanded for action consistent with this ruling.

This ruling attempted to restore jurisdiction in the CDB for further

proceedings.   It did not direct Dubuque to do or not do anything.
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Therefore, Dubuque cannot be held to have violated an order which was

directed at another party.

      Even if we were to assume there was an implicit order directed at

Dubuque, it was not so clear and unambiguous in its terms that a

contempt charge could be based upon it. We said in Hudson v. Jenkins,

288 N.W.2d 566, 572 (Iowa 1980) (quoting 17 Am. Jur. 2d Contempt

§ 52, at 54–55 (1964)):

      Before a person may be held in contempt for violating a court
      order, the order should inform him in definite terms as to the
      duties thereby imposed upon him, and the command must
      therefore be express rather than implied.

      In the case at hand, Dubuque’s actions did not violate any terms of

the district court’s original order unless we read them in by implication.

“We cannot, however, supply by interpretation constraints which are not

expressed in [the order], especially when the result is to apply powers of

the court as formidable as contempt.”      Hudson, 288 N.W.2d at 572.

Thus, we find Dubuque was not in contempt of the district court’s order

invalidating the city’s annexation. Consequently, we sustain the writ.

      IV.   Conclusion
      We find Dubuque was not in contempt of the district court’s

original order because that order was not directed at Dubuque. It was

error to hold otherwise.

      WRIT SUSTAINED.

      All justices concur except Hecht and Appel, JJ., who take no part.
