              IN THE SUPREME COURT OF IOWA
                               No. 19–0608

                             Filed May 1, 2020


CHRISTY B. LOGAN,

      Appellant,

vs.

THE BON TON STORES, INC. and LIBERTY MUTUAL INSURANCE
CORP.,

      Appellees.

      Appeal from the Iowa District Court for Johnson County,

Lars Anderson, Judge.



      A claimant appeals the dismissal of her petition for judicial review

of a workers’ compensation commission decision.        REVERSED AND

REMANDED.



      Christy B. Logan, Iowa City, pro se.


      Andrew D. Hall and Aaron W. Lindebak of Grefe & Sidney, P.L.C.,

Des Moines, for appellees.
                                           2

MANSFIELD, Justice.

       Before us is a codicil to a case we decided last year. In Ortiz v. Loyd

Roling Construction, 928 N.W.2d 651, 655 (Iowa 2019), we held that

emailing a petition for judicial review to the opposing party’s counsel by

the statutory deadline, where the petition was actually received and no

prejudice      resulted,     substantially       complied       with     Iowa     Code

section 17A.19(2) (2017). Today we have to decide whether the same rule

applies to faxing.      In our view, the similarities in the two situations

outweigh any differences. Therefore, we hold that timely faxing a petition

for judicial review to the opposing party’s counsel, where the petition is

actually received and no prejudice results, constitutes substantial

compliance under section 17A.19(2).                Accordingly, we reverse the

judgment of the district court dismissing the petition for judicial review,

and we remand for further proceedings.

       I. Facts and Procedural History.

       Christy Logan worked as a retail salesperson for the Younkers

department store in Coralville from 2008 to 2018. Her medical records

indicate she suffered from significant left knee and bilateral knee pain

during 2014.

       On February 22, 2016, Logan filed a petition with the Iowa Workers’

Compensation Commission against her employer and its workers’

compensation insurance carrier. 1 Logan alleged she suffered a work injury

when she tripped on a rug at work on March 1, 2014. Approximately two

months later, on April 4, 2016, Logan filed three other petitions with the

commission. Each petition alleged further workplace injuries occurred



       1We will refer to the respondents collectively as Younkers, which is the d/b/a for
Logan’s employer, The Bon Ton Stores, Inc.
                                     3

when Logan tripped on a rug at work on April 4, April 23, and October 18,

2014, respectively.

        Following a hearing, the deputy commissioner issued an arbitration

decision on August 24, 2018. He found that Logan had not proved that a

compensable workplace injury occurred on March 1, April 4, or April 23,

2014.    The deputy noted that Logan already had a longstanding knee

condition, and none of the medical records from the spring of 2014 referred

to even a possible workplace injury. The deputy did find that Logan had

sustained a compensable workplace injury on October 18. However, as

the deputy reviewed the record, there was no evidence that Logan had lost

time from work due to that injury. Also, as the deputy pointed out, Logan’s

attending physician saw her on October 30 (twelve days later) and

determined that any symptoms from the October 18 injury had been

resolved.    Accordingly, the deputy concluded that Logan should take

nothing on her petitions alleging March 1, April 4, and April 23 workplace

injuries. With respect to the October 18 injury, Logan was awarded only

the costs of her October 30 medical consultation.

        Logan filed an interagency appeal to the commissioner, who affirmed

the deputy’s decision in an appeal decision on December 5, 2018. Logan

then filed a pro se petition with the Iowa District Court for Johnson County

seeking judicial review of the commissioner’s ruling.     The petition was

electronically filed on January 3, 2019. Logan faxed copies the same day

to Younkers’ attorney and the workers’ compensation commission.

Younkers’ attorney does not dispute that he received the petition.

        On January 23, Younkers moved to dismiss Logan’s petition for

judicial review. Younkers argued that Iowa Code section 17A.19(2) (2019)

requires the petitioner either to “mail” the petition or “serve [it] by the

means provided in the Iowa rules of civil procedure for the personal service
                                      4

of an original notice.” Iowa Code § 17A.19(2). Because Logan had not

mailed the petition in the conventional sense or caused it to be served

personally, and because the ten days allowed for service had expired,

Younkers asked for dismissal of the petition. Logan resisted the motion,

attached proof of her faxes to her resistance, and also served Younkers’

attorney with the petition again, this time by certified mail.

      On March 13, the district court entered an order granting Younkers’

motion to dismiss. It observed that the ten-day service requirement was

jurisdictional. See id. But it also noted that “substantial compliance with

§ 17A.19 provides the district court with jurisdiction over the case.” See

Brown v. John Deere Waterloo Tractor Works, 423 N.W.2d 193, 194 (Iowa

1988). Still, the court found “that Petitioner’s sending of a facsimile of her

Petition to Respondents is not substantial compliance with the

requirements of § 17A.19. The service requirements of § 17A.19(2) are

clear, and do not authorize service by facsimile.”

      Logan appealed, arguing that service by fax was sufficient, and we

retained her appeal.

      II. Standard of Review.

      “Our review in this case is to correct errors at law.”       Ortiz, 928

N.W.2d at 653.

      III. Analysis.

      Iowa Code section 17A.19(2) states in part,

      Within ten days after the filing of a petition for judicial review
      the petitioner shall serve by the means provided in the Iowa
      rules of civil procedure for the personal service of an original
      notice, or shall mail copies of the petition to all parties named
      in the petition and, if the petition involves review of agency
      action in a contested case, all parties of record in that case
      before the agency. Such personal service or mailing shall be
      jurisdictional. The delivery by personal service or mailing
      referred to in this subsection may be made upon the party’s
      attorney of record in the proceeding before the agency.
                                       5

         On a quick read of the statute, the outcome of this case seems

straightforward. Logan served Younkers’ attorney of record on the same

day she filed her petition for judicial review in the Johnson County district

court.     However, she served it by fax, which would not normally be

considered personal service or mailing.         And the statute provides that

“personal service or mailing shall be jurisdictional.” Id.

         But we are not writing on a blank slate. In fact, we wrote on the

same slate just a year ago. In Ortiz, we held that timely service by email

on the respondents’ attorney of record was sufficient to meet the

requirements of Iowa Code section 17A.19(2). 928 N.W.2d at 655.

         In Ortiz, like the present case, an employee was seeking judicial

review of a workers’ compensation commission decision. Id. at 652. But

there, unlike here, the claimant was represented by an attorney.            Id.

Nevertheless,      the   attorney   neglected     to   strictly   comply   with

section 17A.19(2), emailing the petition instead of personally serving it or

sending it by “snail mail.” Id. The district court dismissed the employee’s

petition, and the court of appeals affirmed. Id.

         In reversing that dismissal, we first observed that the statute in

question had been enacted in 1975 and amended in 1981, but had not

been amended since then. Id. at 653. We noted the following:

               At the time the statute was enacted, and when it was
         subsequently amended, electronic mailing was little more
         than a thought of a few, and the concept had little application
         or appreciation in society. It was in its infancy. The statute
         was enacted before what is now known as email was
         commonly used to send written communications.

Id. (citation omitted). We then went on:

         [T]oday, email is one of the primary and accepted forms of
         sending communications in society. It has largely displaced
         mail by the postal service in most instances, including the
         legal system in Iowa. Email is not only the expected form of
                                      6
      communication today but generally the required or preferred
      form. See Iowa R. Civ. P. 1.442(2) (permitting service by mail
      or email); see also Iowa R. Elec. P. 16.315(1)(a) (“Completing
      the registration process . . . constitutes a request for, and
      consent to, electronic service of court-generated documents
      and documents other parties file electronically.”); id.
      r. 16.315(1)(b) (governing electronic service of documents
      through electronic mail).

Id.

      We also pointed out that our precedent applied a “substantial

compliance” standard, not a strict compliance standard, to Iowa Code

section 17A.19(2). Id. at 654 (collecting cases). Most notably, in Brown v.
John Deere Waterloo Tractor Works, we had held that a claimant

substantially complied with section 17A.19(2) when she mailed a copy of

the petition for judicial review to the attorney two days before filing it,

rather than “[w]ithin ten days after” filing it. 423 N.W.2d at 194, 196.

Brown explained, “[W]e have consistently held that substantial—not

literal—compliance with section 17A.19(2) is all that is necessary to invoke

the jurisdiction of the district court.” Id. at 194. Brown emphasized the

lack of prejudice to the employer and highlighted that the premature

service nonetheless fulfilled the legislature’s purpose in enacting section

17A.19(2). Id. at 194–96.

      Likewise, in Monson v. Iowa Civil Rights Commission, 467 N.W.2d

230, 232 (Iowa 1991), we held that service several days beyond the ten-

day deadline substantially complied with the statute when the late service

was the fault of the sheriff, not the petitioner or his counsel. We explained,

      Service, though tardy, was completed in substantial
      compliance with the statute. The sheriff’s mistake cannot
      fairly be attributed to Monson, and the Commission has
      established no prejudice flowing from the brief delay.

Id. We added,

      By its terms, the statutory service or mailing option is
      jurisdictional, but we have repeatedly held that “substantial—
                                      7
      not literal—compliance with section 17A.19(2) is all that is
      necessary to invoke the jurisdiction of the district court.”

Id. (quoting Brown, 423 N.W.2d at 194).

      In fact, our substantial compliance standard under Iowa Code

section 17A.19(2) is almost as old as the Iowa Administrative Procedure

Act itself, dating back to 1980. See Frost v. S. S. Kresge Co., 299 N.W.2d

646, 648 (Iowa 1980) (en banc) (“Section 17A.19(2) says such mailing is

jurisdictional; but that subsection should not be construed to make all

errors or omissions in service jurisdictional.”).       The legislature has
amended section 17A.19 and has never disturbed that standard. See, e.g.,

1998 Iowa Acts ch. 1202, §§ 22–24 (codified at Iowa Code § 17A.19(1), (5),

(8) (1999)); see also Mitchell v. Cedar Rapids, 926 N.W.2d 222, 234 (Iowa

2019) (discussing the doctrine of legislative acquiescence).

      One justification, perhaps, for recognizing substantial compliance

under Iowa Code section 17A.19(2) lies in the difference between a petition

for judicial review and an ordinary lawsuit. When a party seeks judicial

review of an agency decision in a contested case under section 17A.19(2),

the parties have already been litigating. They have been communicating

with each other. The petition for judicial review is just a continuation of

the litigation and the communication. This contrasts with a typical civil

lawsuit that may come as a bolt out of the blue to a defendant.            See

Richards v. Iowa Dep’t of Revenue, 362 N.W.2d 486, 488–89 (Iowa 1985)

(“Ordinarily the parties served with a copy of the petition for judicial review

have already been engaged in adversary proceedings within the agency and

know what the case is all about.”).

      In Ortiz, we qualified our endorsement of substantial compliance

somewhat.     We “acknowledge[d] that the leeway permitted under the

substantial-compliance doctrine would not normally include using a
                                      8

means of communication different than provided under the statute.” 928

N.W.2d at 654. Yet we added that “we have in the past construed statutes

written in an era that fit the means of communication at the time but were

later displaced by different forms of communication.” Id. at 655. The use

of the term “mail,” we held, “should not preclude the word to apply to a

means of communication that would later displace postal mail as the

standard and most reliable means of routine, reliable communication.” Id.

      We had not yet decided Ortiz when the district court ruled in the

present case.   Nonetheless, unsurprisingly, the parties’ briefing in this

court has focused on Ortiz. Some aspects of Ortiz clearly support Logan’s

position on appeal; others less so.

      We begin with the aspects of the opinion that favor Logan. Fax, like

email, would not have been on the legislature’s mind when it last amended

Iowa Code section 17A.19(2) in 1981. See id. at 653. It did not flourish

until the late 1980s and the 1990s. Richard G. Barrows, Fax Law—A

Compendium of Reported Cases, 17 L. Prac. Mgmt., 28, 29 (1991)

(“Although invented in 1842, the fax (facsimile) machine did not reach

universal use in the legal community until the late 1980s. Today almost

every law firm in the U.S. has a fax machine.”). Also, Iowa Rule of Civil

Procedure 1.442(2), which we cited in Ortiz for permitting service by email,

also permits service by fax. Ortiz, 928 N.W.2d at 653; see also Iowa R. Civ.

P. 1.442(2). Moreover, if “substantial compliance” means no one has been

prejudiced and the objectives of the statute have been met, then we have

substantial compliance here. See Brown, 423 N.W.2d at 194–96.

      On the other hand, Ortiz said in dicta (which we have already quoted)

that “the leeway permitted under the substantial-compliance doctrine

would not normally include using a means of communication different
                                             9

than provided under the statute.” Ortiz, 918 N.W.2d at 654. 2 Also, Ortiz

relied in part on the fact that email has largely supplanted snail mail. Id.

at 653–54. And to a degree, Ortiz was driven by a textual approach that

interpreted “mail” as including “current routine systematic methods of

sending written communications.” Id. at 655.

      These facets of Ortiz arguably would not justify treating fax under

Iowa Code section 17A.19(2) the same as email. Unlike email, fax is not a

current routine systematic method of sending written communications.

And while the term “mail” can perhaps be stretched linguistically to

include “email,” “fax” seems to be a stretch too far.

      On balance, though, we conclude that Logan substantially complied

with the service requirements in Iowa Code section 17A.19(2) and,

therefore, her petition should not have been dismissed.          There is no

dispute that Younkers timely received the petition, and Younkers does not

claim prejudice. The fax number that Logan used is the same fax number

that Younkers’ counsel displays on the front page of his brief in this court.

In Ortiz, we commented that “between attorneys, the notice objective of the

statute is met by the use of email as much, if not more, as by postal service

mail.” 928 N.W.2d at 654. One could argue that fax notice is even more

effective because of its rarity these days: an attorney might miss an email

among the electronic clutter on his or her computer but is less likely to

miss a unicorn fax. Also, faxes, after they arrive these days, are often

routed to the attorney’s email (although identified as faxes).

      The golden age of faxing has come and gone, but we strain to see

why a fax copy of a petition for judicial review that was actually received

and read by an attorney should be treated differently from an emailed copy


      2We   cited no authority for this statement in Ortiz.
                                    10

that was received and read. Both are recognized forms of service on an

attorney under rule 1.442(2). If a law firm no longer wishes to receive

faxes, the law firm can disconnect its fax machine and cease providing that

number. See Iowa R. Civ. P. 1.411(1) (“Each appearance, notice, motion,

or pleading shall be captioned with the title of the case, naming the court,

parties, and instrument, and shall bear the signature, personal

identification number, address, telephone number, and, if available,

facsimile transmission number and e-mail address of the party or attorney

filing it.” (Emphasis added.)).

      IV. Conclusion.

      For the foregoing reasons, we hold that Logan substantially

complied with the service requirements in Iowa Code section 17A.19(2).

We reverse and remand for further proceedings consistent with this

opinion.

      REVERSED AND REMANDED.

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

McDonald, J., files a dissenting opinion in which Oxley, J., joins.

McDermott, J., takes no part.
                                       11

                                     #19–0608, Logan v. Bon Ton Stores, Inc.

McDONALD, Justice (dissenting).

      I respectfully dissent. Iowa Code section 17A.19(2) (2019) provides

that a party seeking judicial review of an agency action must, within ten

days after filing a petition for judicial review, serve all the parties of record

by mail service or by personal service in compliance with the Iowa Rules

of Civil Procedure for service of original notice. Proof of service shall be

established by affidavit. See Iowa Code § 17A.19(2) (“Proof of mailing shall

be by affidavit.”); Iowa R. Civ. P. 1.308(1) (stating “Iowa officers may make

unsworn returns” of service and all others “shall be proved by the affidavit

of the person making the service”). Service in compliance with the statute

is “the exclusive means by which a person or party who is aggrieved or

adversely affected by agency action may seek judicial review of such

agency action.”     Iowa Code § 17A.19.        The service requirements are

mandatory and jurisdictional. See id. § 17A.19(2) (“Such personal service

or mailing shall be jurisdictional.”); Cunningham v. Iowa Dep’t of Job Serv.,

319 N.W.2d 202, 204 (Iowa 1982) (stating the service requirements are

“mandatory and jurisdictional”).      “Thus, a failure to comply with them

deprives the district court of appellate jurisdiction over the case.” Brown

v. John Deere Waterloo Tractor Works, 423 N.W.2d 193, 194 (Iowa 1988).

      In concluding service by facsimile transmission substantially

complies with the mandatory and jurisdictional service requirements the

majority relies on Ortiz v. Loyd Roling Construction, 928 N.W.2d 651 (Iowa

2019). In that case, we specifically stated the “substantial-compliance

doctrine would not normally include using a means of communication

different than provided under the statute.” Id. at 654. Ortiz made a single

exception for service by email, however, for two reasons.           First, Ortiz

explained email had replaced postal mail as the normal means of
                                    12

communication between lawyers. See id. (“Email . . . is used far more often

among attorneys than postal mail and has replaced postal mail as the

normal means to transmit legal documents among lawyers in Iowa.”). It

was the technological “displacement [that drew] email into the circle of

substantial compliance.” Id. Second, Ortiz noted this court had already

created court rules governing email service in conjunction with the

creation of Iowa’s electronic document management system (EDMS). See

id. at 653.     The Ortiz court held that service by email substantially

complied with Code section 17A.19(2) only “when done pursuant to Iowa

Court Rules governing electronic service.” Id. at 655.

      Not only is Ortiz distinguishable from this case, Ortiz specifically

precludes the result the majority opinion reaches today. As noted, Ortiz

specifically stated the “substantial-compliance doctrine would not

normally include using a means of communication different than provided

under the statute.” Id. at 654. Ortiz created a narrow exception for email

service in compliance with the Iowa Court Rules governing electronic

service. See id. at 655. Unlike email, however, facsimile transmission has

not replaced postal mail as the normal means of communication between

lawyers. Outside the narrow context of email service pursuant to the Iowa

Court Rules governing EDMS, Ortiz concluded “[a]ny other method of

communication would be unexpected and jeopardize the purpose of the

statute.” Ortiz, 928 N.W.2d at 655. It is unclear how the majority can

conclude service of notice by facsimile transmission substantially complies

with the statute when Ortiz specifically stated any other method of service

outside of email service pursuant to the Iowa Court Rules governing

electronic service “would be unexpected and jeopardize the purpose of the

statute.” Id.
                                       13

      Ignoring the holding and rationale of Ortiz, the majority muses

service by facsimile transmission might substantially comply with the

statute because the statute is old and the legislature might now consider

service by facsimile transmission as acceptable.            This argument is

unpersuasive. We interpret and apply statutes using “the legislature’s

chosen statutory language, ‘not what it should or might have said.’ ” State

v. Ross, ___ N.W.2d ___, ___ (Iowa 2020) (quoting Auen v. Alcoholic

Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004)). It is the legislature’s

job to amend statutes in light of technological change, and a “change in

the statute can only come from the legislature.” Ortiz, 928 N.W.2d at 653.

We cannot exercise legislative power and amend the Iowa Code “in the

guise of interpretation” or construction. See In re Det. of Geltz, 840 N.W.2d

273, 280 (Iowa 2013).

      The majority’s exercise of the legislative power is particularly

inappropriate here. The legislature has enacted, revised, and amended

numerous statutes to provide for the use of facsimile transmission. See,

e.g., Iowa Code § 8A.344(4)(a) (allowing public bids to be submitted “in

writing, by telephone, by facsimile, or in a format prescribed by the director

as indicated in the bid specifications”); id. § 16.92(3)(c) (allowing for service

of notice of release of mortgage by numerous methods, including “facsimile

transmission”); id. § 26.14(3)(b) (allowing public bidding quotations to be

“received by mail, facsimile, or electronic mail”); id. § 68A.402(1) (allowing

reports from political committees to be filed by “mail bearing a United

States postal service postmark, hand-delivery, facsimile transmission,

electronic mail attachment, or electronic filing as prescribed by rule”);

id. § 103.25(1) (allowing a request for inspection to be submitted by “mail

or by a fax transmission”); id. § 235F.6(10) (allowing clerk to notify sheriff

of elder abuse order “by facsimile or other electronic transmission”);
                                      14

id. § 236.5(7) (allowing clerk to notify sheriff of protective order “by sending

the notice by facsimile or other electronic transmission”); id. § 252G.3(3)

(allowing employers to report employee information by mail or fax);

id. § 275.53(2) (allowing notice of commission’s dissolution proposal of

school district to be transmitted by mail, hand delivery, facsimile

transmission, or electronic delivery); id. § 275.54(2) (allowing notice of

board’s dissolution proposal of school district to be transmitted by mail,

hand    delivery,   facsimile     transmission,    or    electronic     delivery);

id. § 321E.2(5) (allowing requests for permits to be made “in person,

through    the   internet,   by   facsimile   machine,   or    by     telephone”);

id. § 514G.110(6)(b)(1) (requiring notice of designation of person to

conduct independent review of benefit determinations to “be sent to the

commissioner via facsimile”); id. § 572.34(7) (allowing notice of mechanic’s

liens to be sent to lien registry by “United States mail or facsimile

transmission” among other alternate methods). These Code provisions

demonstrate the legislature is aware of facsimile transmission and knows

how to amend statutes to provide for the service of notice and the

transaction of business by facsimile transmission.            The fact that the

legislature has not amended Iowa Code section 17A.19(2) should be

respected and not disturbed.

       In addition to being contrary to the text of the statute and contrary

to Ortiz, the majority opinion is also contrary to the great weight of

persuasive authority. Other courts have concluded service by facsimile is

not a substitute method for service where, as here, a statute or rule

specifically provides for other methods of service not including facsimile

service. See, e.g., United States v. Flowers, 464 F.3d 1127, 1131 (10th Cir.

2006) (“The Federal Rules . . . allow service by fax only when the party

being served by fax has consented to it in writing.”); Firefighter’s Inst. for
                                     15

Racial Equal. v. St. Louis, 220 F.3d 898, 903 (8th Cir. 2000) (transmitting

subpoena by fax is insufficient to satisfy Federal Rule of Civil Procedure

45(b)(1)); Magnuson v. Video Yesteryear, 85 F.3d 1424, 1429 (9th Cir.

1996) (holding an offer of judgment must comply with service of process,

which is not satisfied by service by fax); Cherry v. Spence, 249 F.R.D. 226,

229 (E.D.N.C. 2008) (“A federal plaintiff may serve process on an individual

by handing a summons and complaint to the individual personally, by

leaving a summons and complaint at the individual’s house or other place

of abode, by serving the individual’s authorized agent, or by serving the

individual in compliance with the law of the state where the federal court

is located.   Service by facsimile does not fit into any of the first three

categories . . . .” (citation omitted)); United States v. Galiczynski, 44

F. Supp. 2d 707, 713 (E.D. Pa. 1999) (“The result reached here, that the

Federal Rules of Civil Procedure do not authorize service by fax, is

consistent with the unanimous decisions rendered by courts that have

considered the issue.”), aff’d, 203 F.3d 818 (3d Cir. 1999); Switzer v.

Sullivan, No. 95 C 3793, 1996 WL 52911, at *1 (N.D. Ill. Feb. 5, 1996)

(“[S]ervice by fax raises difficult issues of timing and verification.

Accordingly, service by fax does not satisfy Rule 5(b).”); Salley v. Bd. of

Governors, 136 F.R.D. 417, 420–21 (M.D.N.C. 1991) (“[T]he Court

determines that fax transmissions do not constitute either service by

delivery or service by mail as those terms are used in Rule 5(b).”); Wagner

v. South Pasadena, 93 Cal. Rptr. 2d 91, 96 (Ct. App. 2000) (holding the

service of the “initial pleading by facsimile was not substantial

compliance”); Phillips, Inc. v. Historic Props. of Am., LLC, 581 S.E.2d 389,

390 (Ga. Ct. App. 2003) (finding service via facsimile does not substantially

comply with the statute because the “inherent unreliability of service via

facsimile does not serve the purpose of ensuring that the owner timely
                                       16

receives notice of a lien”); Cox v. Mid-Minn. Mut. Ins., 909 N.W.2d 540, 546

(Minn. 2018) (holding personal service requirement excludes facsimile

transmission); Marshall v. State, M-40414, 544 N.Y.S.2d 437, 438 (Ct. Cl.

1989) (“Service of a claim by fax is not an authorized method of service

and service by means other than prescribed by the statute is insufficient

for the purpose of obtaining personal jurisdiction over defendant.” (citation

omitted)); Inman v. Netteland, 974 P.2d 365, 369 (Wash. Ct. App. 1999)

(holding facsimile “does not constitute service on an attorney or party”

where the rules provide for other methods of service).

      In accord with the fair and ordinary meaning of the statute, I would

hold Iowa Code section 17A.19(2) requires a party seeking judicial review

of an agency action to serve all the parties of record by personal service or

mail service as a prerequisite to invoking the district court’s appellate

jurisdiction.   In accord with Ortiz, I would hold service of notice by

facsimile transmission does not substantially comply with the statutory

mandate because service by facsimile transmission is an “unexpected”

form of communication not subject to the Iowa Court Rules and thus

“jeopardize[s] the purpose of the statute.” Ortiz, 928 N.W.2d at 655. For

these reasons, I respectfully dissent.

      Oxley, J., joins this dissent.
