                   IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0220
                               Filed June 3, 2020


JAMES M. WINTERS, CAROL A. WINTERS, RICHARD SCHROEDER and DEB
SCHROEDER,
    Plaintiffs-Appellees,

vs.

A.J. CHRISTEN and AUNE CHRISTEN, and their heirs, devisees, grantees,
assignments, successors in interest and any unknown claimants of the
following described real estate situated in Allamakee County,
      Defendants,

DUANE A. TANK and SHEILA M. TANK,
     Intervenors-Appellants.
________________________________________________________________


      Appeal from the Iowa District Court for Allamakee County, Margaret L.

Lingreen, Judge.



      Nearby property owners appeal a ruling quieting title of neighbors’ property.

AFFIRMED.




      Roger L. Sutton of Sutton Law Office, Charles City, for appellants.

      James Burns of Miller, Pearson, Gloe, Burns, Beatty & Parrrish, P.L.C.,

Decorah, for appellees.



      Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
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MULLINS, Judge.

       “James Winters, Carol Winters, Ted Waitman and Deborah Waitman

instituted this quiet title action, seeking to establish their ownership over the land

situated between their properties and that of the high water mark of the Mississippi

River.” Winters v. Christen, No. 16-0970, 2017 WL 1403629, at *1 (Iowa Ct. App.

Apr. 19, 2017). Duane Tank and Sheila Tank, as intervenors, filed an answer to

the petition, contesting their asserted ownership. Id. The district court granted the

Winterses’ motion for partial summary judgment and quieted title in the Winterses

and the Waitmans. Id. The Tanks appealed, and we affirmed the partial summary

judgment as to the Winterses but reversed and remanded as to the Waitmans

because the Waitmans had not filed a motion for summary judgment nor joined in

the motion filed by the Wintereses. Id. at *1, *5–6

       After remand, Richard Schroeder and Deb Schroeder were substituted for

the Waitmans after the Schroeders became successors in interest.                 The

Schroeders moved for summary judgment, and the Tanks moved to dismiss for

lack of jurisdiction. The district court granted the Schroederses’ motion and denied

the Tanks’ motion. The Tanks appeal.

       “We review rulings on motions for summary judgment for correction of errors

at law.” Blue Grass Sav. Bank v. Cmty. Bank & Tr. Co., 941 N.W.2d 20, 23 (Iowa

2020) (citation omitted). Summary judgment is appropriate only when the moving

party shows there are no genuine issues of material fact, and in deciding that issue,

we review the record in the light most favorable to the party opposing the motion.

Susie v. Family Health Care of Siouxland, P.L.C., ___ N.W.2d ___, ___, 2020 WL

1173564, at *2 (Iowa 2020).
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       In our earlier decision in this case, we set forth the background facts in some

detail and need not repeat all of them here. See generally Winters, 2017 WL

1403629, at *1–2. Following the first appeal, the Schroeders purchased a tract of

real property west of the Mississippi River from the Waitmans. The Schroeders

were then substituted as plaintiffs in place of the Waitmans. On the eastern side

of their property is a county road and a railroad bed. The dispute is focused on the

land directly east of the property for which the Schroeders have title, to the location

of the high water mark on the west bank of the Mississippi River, but excluding the

county road and railroad property.

       After we reversed and remanded this case as to the Waitmans, the Tanks

challenged the district court’s jurisdiction. In this appeal, the Tanks complain the

district court did not have jurisdiction of the case because of defects in the

procedures underlying the published notice at the commencement of the case, and

the district court erred by not dismissing the case.1 The Tanks intervened in this

case and filed an answer in 2013. The case proceeded to a summary judgment

ruling in favor of the Winterses and the Waitmans in 2016, which we affirmed in

2017 as to the Winterses but reversed and remanded as to the Waitmans. It was

only after our remand that the Tanks challenged jurisdiction.

       Before commencing service by publication on a defendant, a plaintiff is

required to file an affidavit that personal service cannot be had on the defendant.

See Iowa R. Civ. P. 1.310.       The Tanks claim the district court did not have

jurisdiction to hear the case. An Iowa district court clearly has subject matter


1 The Tanks also attempt to conflate the alleged defects to the level of fraud. There
is no evidence of fraud.
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jurisdiction to hear quiet-title cases. See generally Iowa Code ch. 694. The Tanks’

real challenge is to personal jurisdiction.        “Filing the affidavit is a condition

precedent to the validity of published notice. The affidavit must be filed before the

notice is published.     A judgment rendered on published notice without an

appearance by defendant when the affidavit has not been so filed is void.” Swift

v. Swift, 29 N.W.2d 535, 538 (Iowa 1947) (emphasis added).               If the proper

procedure is not followed, the published notice is insufficient to confer personal

jurisdiction on the defendant. See id.

       But the Tanks are not the defendants. They intervened in the proceeding.

As such, we agree with the district court the Tanks submitted to personal

jurisdiction of the court and waived any defect as to jurisdiction over them when

they intervened and appeared in the case. See Sioux Pharm, Inc. v. Summit

Nutritionals Int’l, Inc., 859 N.W.2d 182, 190 (Iowa 2015) (“A party could submit to

the jurisdiction of the court by appearance.”). And, while subject matter jurisdiction

may be raised at any time, any challenge to personal jurisdiction is waived if not

made in a pre-answer motion. See Iowa R. Civ. P. 1.421(1)(b), (4). We need not

decide whether the published notice was defective or whether there were

irregularities in the procedures leading to publishing notice because the Tanks

submitted to jurisdiction seven years ago. And, they have no standing to challenge

jurisdiction as to any other potential claimant.

       In this appeal, the Tanks also argue the district court erred by refusing to

consider their claim of extrinsic fraud and erred in a determination relating to the

proper identification or ownership interests of the railroad and the county. The

Schroeders have made no claim against the interests of the railroad and the
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county, and the district court made no ruling against such interests. The Tanks’

claims in this regard have no bearing on whether title should be quieted as to the

Schroeders.

       In one of their brief points, the Tanks claim a quit claim deed was an

insufficient indicia of ownership in the chain of title. That issue statement is not an

accurate identification of the argument that follows in their brief, which was another

allegation of fraud in the failure of plaintiffs to adequately research the prior title

status of land owned by the county. We find that claim to have no merit as it relates

to the dispute between the Schroeders and the Tanks.

       Based on the various claims set forth above, the Tanks argue our decision

in the first appeal should have no preclusive effect because they have raised new

claims that were not raised in the prior appeal or in the proceedings leading to the

first appeal. On all such claims, we conclude the district court’s order granting

summary judgment in favor of the Schroederses and its order resolving the Tanks’

motion for reconsideration identified and considered all the issues presented in this

appeal, and we approve the reasons and conclusions in the orders entered by the

district court, including its reliance on our earlier decision in this case. A full opinion

would not augment or clarify existing case law. We affirm without further opinion

pursuant to Iowa Court Rule 21.26(1)(d) and (e).

       AFFIRMED.
