                   IN THE COURT OF APPEALS OF IOWA

                                 No. 16-0620
                             Filed April 19, 2017


JAYSEN MCCLEARY,
     Plaintiff-Appellant,

vs.

CITY OF DES MOINES ZONING BOARD OF ADJUSTMENT,
      Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert B. Hanson,

Judge.




      Jaysen McCleary appeals the district court’s dismissal of his writ of

certiorari. AFFIRMED.



      Jaysen McCleary, Des Moines, appellant pro se.

      Luke DeSmet, Assistant City Attorney, Des Moines, for appellee.



      Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
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PER CURIAM.

         Jaysen McCleary appeals the district court’s dismissal of his writ of

certiorari claiming the writ was timely filed, some of his claims survived the

dismissal, and the attorney for the City of Des Moines Zoning Board of

Adjustment (the Board) should have been disqualified. Because we conclude

McCleary’s appeal from the decision of the Board was untimely, we affirm the

district court’s grant of the motion to dismiss. We also conclude the court did not

abuse its discretion in refusing to disqualify the Board’s attorney and affirm on

that claim.

         I.    Background Facts and Proceedings

         In September 2014, McCleary filed an appeal with the Board seeking

various zoning variances and permits related to his desire to operate a pet

boarding business out of his home. A public hearing was held on September 22,

and the Board issued its decision denying McCleary’s requests on October 23,

2014. On November 25, 2014, McCleary filed a petition for a writ of certiorari,

seeking to overturn the Board’s decision on various grounds, including federal

constitutional claims. On January 2, 2015, the case was removed to federal

court.

         On January 20, 2015, McCleary filed a “First Amended Petition for

Certiorari and Application for Restraining Order and Request for Declaratory

Relief and Damages under 42 U.S.C. § 1983.” McCleary also filed a motion to

disqualify the Board’s counsel because he had represented McCleary prior to

gaining employment with the Board.       On March 11, the federal district court

denied McCleary’s motion after concluding the matter the Board’s counsel had
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previously represented McCleary on was not substantially related to the current

matter and did not give rise to any conflicts. Following the Board’s motion to

dismiss, the federal district court dismissed all of McCleary’s federal claims, and

the case was remanded to state court.

       On October 6, 2015, the Board filed a motion to dismiss in Polk County

district court, arguing McCleary’s November 25, 2014 petition for a writ of

certiorari was untimely.    On November 2, McCleary again filed a motion to

disqualify the Board’s counsel. The district court concluded McCleary had “not

produced substantial evidence of any prior representation by [the Board’s

counsel] that bears any relationship to the instant matter” and denied McCleary’s

request.     On December 18, the court determined McCleary’s petition “was

untimely in that it was filed with the court later than thirty days after the filing of

the subject decision” and granted the Board’s motion to dismiss. On December

23, McCleary filed a motion asserting his claims for declaratory relief survived the

motion to dismiss and seeking a trial on those claims. On March 12, 2016, the

court, treating McCleary’s motion as a motion to amend and enlarge under Iowa

Rule of Civil Procedure 1.904(2), denied the motion, concluding McCleary had

failed “to bring this issue to the court’s attention in connection with his resistance

to the motion to dismiss and the hearing regarding that motion.”            McCleary

appeals.

       II.     Standard of Review

       We review rulings on a motion to dismiss for correction of errors at law

and will affirm “if the petition fails to state a claim upon which relief may be

granted.” Hedlund v. State, 875 N.W.2d 720, 724 (Iowa 2016). Our review of a
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ruling on a motion seeking to disqualify an attorney is for abuse of discretion, and

we give deference to the district court’s factual findings if they are supported by

substantial evidence.      Bottoms v. Stapleton, 706 N.W.2d 411, 414–15 (Iowa

2005).

         III.   Motion to Dismiss

         McCleary asserts the district court erred in dismissing his petition for being

untimely because the deadline for him to file his appeal did not begin to run until

he received actual notice of the Board’s final decision. McCleary also argues his

claims for declaratory relief survived the motion to dismiss. The Board argues

McCleary’s appeal was untimely and none of his claims survived the motion to

dismiss.

         Iowa Code section 414.15 (2014) establishes the right to appeal a

decision from a zoning board and provides “[s]uch petition shall be presented to

the court within thirty days after the filing of the decision in the office of the

board.” The language of the statute is clear and unambiguous regarding the time

to appeal from a ruling of the zoning board. See Chrischilles v. Arnolds Park

Zoning Bd. of Adjustment, 505 N.W.2d 491, 494 (Iowa 1993) (“If the Chrischilles

had a quarrel with the legality of the variance, they were obligated under section

414.15 to challenge it within thirty days.”).        McCleary filed his appeal on

November 25—more than thirty days after the decision of the Board had been

filed on October 23. Thus, his appeal was not timely, and the district court did

not have jurisdiction to hear it.     See Sergeant Bluff-Luton Sch. Dist. v. City
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Council of Sioux City, 605 N.W.2d 294, 297 (Iowa 2000) (“An untimely petition for

writ of certiorari deprives the reviewing court of subject matter jurisdiction.”).1

       McCleary also asserts that his actions for declaratory relief survived the

motion to dismiss because they are an alternative avenue of relief for the Board’s

decision and are not subject to the same timeliness requirements as writs of

certiorari. Although section 414.15 refers to writs of certiorari as the method of

appealing a zoning board’s decision, we do not find the timeliness requirements

are altered by the choice of a different course for relief, such as a petition for

declaratory relief. In section 414.15, the legislature described the proper course

for appealing a decision of a zoning board, including establishing a thirty-day

time limit to appeal. Regardless of the avenue of relief McCleary chose, he was

still appealing the decision of the zoning board and was subject to the statutory

requirements of such an appeal. Accordingly, when the district court dismissed

McCleary’s claims on timeliness grounds, the dismissal included all of his

appeals stemming from the decision of the Board, including his claims for

declaratory relief.

1
  McCleary also claims his petition was timely because he attempted to file it on
November 24, but it was rejected because it was improperly docketed and McCleary did
not pay the filing fee on November 24. We reject this claim based on the rules
pertaining to our electronic filing system. See Iowa R. Elec. P. 16.309(1)(a)(2) (“A
submission that the clerk of court returns unfiled because of an error is given a file stamp
when the filer submits the corrected version.”); Iowa R. Elec. P. 16.309(1)(b) (“The date
and time of the electronic file stamp are considered the official filing date and time for
purposes of computing relevant deadlines.”); see also Jacobs v. Iowa Dep’t of Transp.,
887 N.W.2d 590, 599 (Iowa 2016) (“Accordingly, we hold today that a resubmitted filing
can relate back to the original submission date for purposes of meeting an appeal
deadline when the following circumstances converge. First, the party submitted an
electronic document that was received by EDMS prior to the deadline and was otherwise
proper except for minor errors in the electronic cover sheet—i.e., errors that could have
been corrected or disregarded by the clerk. Second, the proposed filing was returned by
the clerk’s office after the deadline because of these minor errors. Third, the party
promptly resubmitted the filing after correcting the errors.”).
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       IV.    Motion to Disqualify Counsel

       McCleary claims the Board’s attorney should have been disqualified

because he had previously represented McCleary in another matter. The State

responds McCleary failed to show a conflict of interest that required

disqualification.

       Iowa Rule of Professional Conduct 32:1.9(a) provides:

       A lawyer who has formerly represented a client in a matter shall not
       thereafter represent another person in the same or a substantially
       related matter in which that person’s interests are materially
       adverse to the interests of the former client unless the former client
       gives informed consent, confirmed in writing.

Under this rule, matters are “substantially related” “if they involve the same

transaction or legal dispute or if there otherwise is a substantial risk that

confidential factual information as would normally have been obtained in the prior

representation would materially advance the client’s position in the subsequent

matter.” Iowa R. Prof’l Conduct 32:1.9 cmt. 3. We examine three factors in

determining whether two matters are substantially related: “(1) the nature and

scope of the prior representation; (2) the nature of the present lawsuit; and (3)

whether the client might have disclosed a confidence to [their] attorney in the

prior representation which could be relevant to the present action.” Doe ex rel.

Doe v. Perry Cmty. Sch. Dist., 650 N.W.2d 594, 598 (Iowa 2002).

       In a professional statement to the court, the Board’s counsel described his

prior representation of McCleary, which occurred in 2011, as assisting a former

law partner

       by providing a model letter of intent for a business purchase and
       reviewing a draft of the letter written either by [the former partner] or
       by Mr. McCleary. While assisting with that letter, I may have
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       reviewed related documents, engaged in phone conversation with
       Mr. McCleary, and I participated in several e-mail communications
       related to the transaction. I did not meet Mr. McCleary in person
       and recall no further involvement in the transaction.

Based on this statement, it is clear the Board’s attorney participated in

representing McCleary in some capacity; however, in comparison to cases where

our supreme court has found rule 32:1.9 violations, we do not find the nature and

scope of the representation was significant.      See Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Stoller, 879 N.W.2d 199, 217 (Iowa 2016); see also Doe, 650

N.W.2d at 599 (finding an attorney was involved in prior representation where the

attorney had met the clients, appeared with them in court, and signed pleadings

as their attorney).

       The nature of the present action appears wholly unrelated to the Board’s

attorney’s prior representation of McCleary.     While the prior representation

involved the purchase of a business, this suit involves a zoning dispute between

the Board and McCleary. While McCleary claims a connection exists because

the prior representation involved the same property, it strains us to see how that

connects the nature and scope of the prior representation to the nature of this

lawsuit.

       In considering “whether the client might have disclosed a confidence to

her attorney in the prior representation which could be relevant to the present

action,” the lack of a connection between the prior representation and the current

lawsuit make it unlikely McCleary disclosed a confidence that is relevant to the

lawsuit. Doe, 650 N.W.2d at 598. While the Board’s attorney likely had access

to some confidential information while assisting McCleary with a potential
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business purchase, it is unclear how any of that information would be relevant to

McCleary’s request for a zoning variance.

       Based on our consideration of the three relevant factors, we conclude the

Board’s attorney’s prior representation of McCleary did not “substantially relate”

to the current lawsuit. Thus, we discern no abuse of discretion in the district

court’s refusal to disqualify the Board’s attorney.

       V.     Conclusion

       Because we conclude McCleary’s appeal from the decision of the Board

was untimely, we affirm the district court’s grant of the motion to dismiss. We

also conclude the court did not abuse its discretion in refusing to disqualify the

Board’s attorney and affirm on that claim.

       AFFIRMED.
