                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0958
                             Filed November 8, 2017
RAYMOND SULLINS,
    Plaintiff-Appellant,

vs.

IOWA DISTRICT COURT FOR POLK COUNTY,
     Defendant,

and

CITY OF DES MOINES AND SAFARI II, L.L.C.,
      Intervening Defendants-Appellees.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.



      A former tenant appeals the district court’s denial of his certiorari petitions.

AFFIRMED.



      Raymond W. Sullins, West Des Moines, pro se appellant.

      Luke M. DeSmet, Assistant City Attorney, for intervening defendant-

appellee City of Des Moines.

      David J. Hellstern of Sullivan & Ward, P.C., West Des Moines, for

intervening defendant-appellee Safari II, L.L.C.



      Considered by Vogel, P.J., McDonald, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
                                            2


SCOTT, Senior Judge.

       Raymond Sullins appeals the district court’s denial of his certiorari

petitions, which challenged the legality of two small claims actions. He raises a

number of claims on appeal. Because we conclude the district court correctly

determined it had no jurisdiction to review the petitions for writ of certiorari

involving the district associate court, res judicata prevents Sullins from raising his

claims against the small claims courts, and the district court property denied

Sullins’s motion for a new trial, we affirm the decision of the district court.

I. Background Facts and Proceedings.

       Sullins rented a commercial space from Safari II, L.L.C., for his wood

pallet business. Safari brought a forcible entry and detainer (FED) action against

Sullins in small claims court after the City of Des Moines cited Safari, as the

property owner, for violation of the city zoning code. In the citation, the City

alleged the storage of the wood pallets on the property did not conform to the

zoning ordinance in effect for the property.1 The FED petition alleged Sullins

violated the terms of the lease agreement with Safari by being in violation of the

city ordinance. After a hearing on the FED petition on September 8, 2015, the

FED court filed a written ruling that stated: “After careful review of the lease, this

court finds that defendants[2] have violated numerous terms of the lease[;]

therefore[,] defendants shall be removed from the property.”




1
  The City’s zoning violation proceeding was brought in a separate small claims action
apart from the FED proceeding against Sullins.
2
  Sullins held the lease along with this son, Matthew Sulllins, who was a party to the FED
action, but Matthew is not a party to this certiorari action.
                                           3


       The ordinance violation proceeding between Safari and the City was

continued pending the resolution of the FED proceeding. On September 22,

2015, Sullins filed a petition to intervene in the ordinance violation proceeding,

asserting he was the “real party in interest as a party in possession pursuant to a

multi-year lease of the real estate premises that are the subject of this action.”

The City resisted the motion to intervene, and the court issued an order denying

the motion without a hearing on September 25, 2015. Three days later, Sullins

filed a second petition to intervene in the ordinance violation proceeding. The

following day, the court ruled the “matter had been previously ruled upon.”3

       Sullins appealed both the FED decision and the denial of his petition to

intervene in the zoning ordinance proceeding to the district associate court,

which denied both appeals.         In the ordinance violation appeal, the district

associate court found the interests of Safari and Sullins were the same, so Safari

could adequately protect the interests of Sullins. The court also noted, “No facts

were presented to show that Sullins did not violate the municipal ordinance.” In

the FED appeal, the district associate court ruled, “Reasonable evidence was

presented [at the FED hearing] to establish that there were violations of the

Municipal Code.” Because a violation of the municipal code is a violation of the

lease agreement, it concluded the FED court’s ruling was “legally sufficient.” The

district associate court concluded there was “a sound factual basis for the

Magistrate’s determination that [Sullins] violated the requirements of the lease

and that the FED was properly granted.”

3
   On the day set for hearing on the ordinance violation proceeding, Safari and the City
filed a stipulation wherein Safari agreed the property was in violation of the zoning
ordinance and agreed to pay a $375 civil penalty and court costs.
                                           4


       Sullins sought discretionary review of the district associate court’s denial

of his appeal from the FED proceeding. The supreme court denied discretionary

review in November 2015.        There is no indication in this record that Sullins

sought discretionary review of the district associate court’s denial of his appeal

from the ordinance violation proceeding.

       Next, Sullins filed certiorari petitions in the district court, challenging the

small claims courts’ rulings in the FED proceeding and the zoning ordinance

proceeding and also challenging the district associate court’s appeal decisions in

both of those cases.      Safari defended the small claims court decisions and

district associate court decisions, and the district court permitted the City to

intervene. All matters were consolidated by the district court, and at the hearing

on the petitions, the district court permitted Sullins’s motion to amend his

petitions to include an allegation that the decisions of the lower courts should be

vacated based on irregularities. See Iowa R. Civ. P. 1.1012(2).

       The district court issued a written ruling that denied Sullins’s claims. The

district court noted it had no jurisdiction over certiorari petitions filed in reference

to district associate court decisions; those must be filed in the supreme court.

See Iowa R. App. P. 6.107. It also rejected Sullins’s claims that the district

associate court decisions should be vacated based on an irregularity.

       With respect to the denial of Sullins’s motion to intervene in the zoning

ordinance violation proceeding, the district court ruled that while the case law

cited by the small claims court and the district associate court was procedurally

and factually different from Sullins’s case, the small claims court correctly denied

Sullins’s intervention petition.    The district court determined the denial of
                                            5


intervention was justified because Sullins’s interest in avoiding the city ordinance

violation was adequately represented by Safari. The district court noted Sullins

may have been entitled to intervention under the permissive intervention rules,

but the small claims court is accorded discretion when ruling on a permissive

intervention under Iowa Rule of Civil Procedure 1.407(2). Therefore, the district

court found no irregularity or illegality in the denial of Sullins’s petition to

intervene.

       As to the FED action, the district court concluded the FED court did not act

illegally because it could and did independently find Sullins violated the lease.

The district court noted the FED court’s decision was “brief” but found it was

supported by substantial evidence entered at the hearing on the FED petition.

       Sullins responded to the district court’s ruling by filing a motion for a new

trial. The court treated the motion as both a motion for a new trial and a motion

to enlarge and reconsider, and it largely denied the claims raised. Sullins now

appeals the district court’s denial of his certiorari petitions. Both Safari and the

City filed briefs supporting the decision of the district court.

II. Scope and Standard of Review.

       “A writ of certiorari lies where a lower board, tribunal, or court has

exceeded its jurisdiction or otherwise has acted illegally. Illegality exists when

the court’s findings lack substantial evidentiary support, or when the court has

not properly applied the law.” State Pub. Def. v Iowa Dist. Ct., 886 N.W.2d 595,

598 (Iowa 2016) (citations omitted). Therefore, our review of the district court’s

ruling in a writ of certiorari case is for the correction of errors at law. Id.
                                           6


         We review the district court’s denial of a petition to vacate under rule

1.1012(2) for the correction of errors at law. In re Marriage of Heneman, 396

N.W.2d 797, 799 (Iowa Ct. App. 1986).            “The trial court has considerable

discretion in deciding whether to vacate a judgment.” Id. “[T]he trial court’s

findings of fact have the effect of a jury verdict, and those findings are binding

upon us if there is substantial evidence to support them.” Id. at 799–800.

III. Analysis.

         Sullins makes a number of claims on appeal asserting in both small claims

proceedings the courts acted illegally and irregularly, the district associate court

acted illegally and irregularly in ruling on the appeals from the small claims court,

and the district court breached its independent duty “to deal with issues under the

Iowa Code of Judicial Conduct.”

         A. Challenges to the District Associate Court’s Decisions.

         As an initial matter, we agree with the district court that the petitions for

writ of certiorari challenging the district associate court’s appeal decisions

relating to the small claims proceedings were not properly before the district

court.    Jurisdiction over writs of certiorari challenging district associate court

decisions lies in the supreme court, not the district court. See Iowa R. App. P.

6.107(1)(a) (“Any party claiming a district court judge, an associate district court

judge, an associate juvenile judge, or an associate probate judge exceeded the

judge’s jurisdiction or otherwise acted illegally may commence an original

certiorari action in the supreme court by filing a petition for writ of certiorari as

provided in these rules.”). Therefore, we conclude any challenge to the illegality
                                           7


of the district associate court’s decision was properly denied by the district court,

and we will not further address Sullins’s challenges to those decisions.

       Sullins further alleges that for a multitude of reasons the district

associate’s decisions were “irregular” under Iowa Rule of Civil Procedure

1.1012(2) and those decisions should be vacated. For a court decision to be

vacated on the grounds that it is “irregular,” Sullins must show he suffered an

adverse ruling “because of some action or inaction on the part of the court or

some court personnel” and that action or inaction was “contrary to some

prescribed rule, mode of procedure, or court practice involving the conduct of a

lawsuit.” See Costello v. McFadden, 553 N.W.2d 607, 612 (Iowa 1996). In

addition, Sullins “must not have caused, been a party to, or had prior knowledge

of the breach of the rule, the mode of procedure, or the practice of the court.”

See id. Except with respect to Sullins’s claim that the district associate court

failed to follow proper procedure when faced with Sullins’s recusal motion, none

of Sullins’s claims against the district associate court allege the court or court

personnel took action or failed to take action in contravention to a “prescribed

rule, mode of procedure, or court practice involving the conduct of a lawsuit.”

See id. Thus, the district court was correct to deny Sullins’s claims of irregularity.

       The district court was also correct to deny Sullins’s claim that the district

associate court’s decision must be vacated based on the failure of the district

associate judge to follow proper procedure in addressing Sullins’s many recusal

motions. The court stated:

       [T]here were no grounds for recusal that would demonstrate [the
       district associate judge] erred in denying Sullins’[s] recusal motion.
       Sullins’[s] criticism of [the district associate judge’s] interpretation of
                                             8


       the controlling law does not warrant recusal. [The district associate
       judge] found no reason to recuse himself and such a decision is
       entrusted to his judgment. The record indicates no reasons
       warranting [the district associate judge’s] recusal.

We agree with the district court’s evaluation of Sullins’s claim and find no error at

law.

       B. Challenges to the FED and Ordinance Violation Proceedings.

       Next, Sullins claims the district court erred in rejecting his petitions for writ

of certiorari and petitions to vacate based on claims of illegality and irregularity

with respect to the small claims FED and ordinance violation proceedings.

However, we conclude the district court correctly denied Sullins’s petitions

because all the claims raised by Sullins were previously raised before the district

associate court in the appeals from the small claims proceedings and are now

barred by res judicata. See Bennett v. MC No. 619, Inc., 586 N.W.2d 512, 516

(Iowa 1998) (“Res judicata is a generic term that includes claim preclusion and

issue preclusion.”).

       The claims that the district associate court specifically addressed in its

appeal decision are barred by issue preclusion.4 See Hunter v. City of Des

Moines, 300 N.W.2d 121, 123 (Iowa 1981) (noting the four prerequisites to issue

preclusions are “(1) the issue concluded must be identical; (2) the issue must

have been raised and litigated in the prior action; (3) the issue must have been

material and relevant to the disposition of the prior action; and (4) the

4
  In its appellate brief, the City acknowledges that the district court did not dismiss
Sullins’s claims based on the doctrine of issue preclusion, but it notes that the defense of
issue preclusion was raised before the district court, and as such, we may rely on that
defense on appeal. See Johnston Equip. Corp. of Iowa v. Indus. Indem., 489 N.W.2d
13, 17 (Iowa 1992) (“Our cases are legion which hold that a trial court may be affirmed
on grounds upon which it does not rely.”).
                                              9


determination made of the issue in the prior action must have been necessary

and essential to the resulting judgment”). In his petitions for writ of certiorari from

the small claims decisions, Sullins raised issues identical to the ones made in his

appeal to the district associate court, and the district associate court specifically

ruled on the those issues in denying his appeal. Sullins cannot raise the issues

again hoping for a different result.

       The claims that Sullins raised in the appeal to the district associate court

that were not specifically addressed by the court in its ruling are barred by claim

preclusion.5 Pavone v. Kirke, 807 N.W.2d 828, 835 (Iowa 2011) (noting the

doctrine of claim preclusion holds “a valid and final judgment on a claim bars a

second action on the adjudicated claim or any part thereof” and “claim preclusion

will apply ‘not only to matters actually determined in an earlier action but to all

relevant matters that could have been determined’” (citation omitted)).                  The

elements of claim preclusion in this case have been met—“(1) the parties in the

first and second action are the same,” “(2) there was a final judgment on the

merits in the first action,” and “(3) the claim in the second suit could have been

fully and fairly adjudicated in the prior case.” Id. at 836.

       The parties have been the same in each of the filings: Sullins, Safari, and

the City. The appeal decision issued by district associate court was the final

adjudication of the small claims proceedings. While the district associate court


5
  While our supreme court left unanswered the question of whether a court can raise
claim preclusion sua sponte, see In re Marriage of Ginsberg, 750 N.W.2d 520, 522 (Iowa
2008), we are persuaded such action is permitted, and in this case necessary. Doing so
allows the appellate court to “protect itself from litigation by a party who has already had
his right finally determined in the district court,” and allows us to give due respect to “the
considered judgments of the district court arrived at after a fair hearing and upon due
consideration.” Bechtold v. City of Rosemount, 104 F.3d 1062, 1068 (8th Cir. 1997).
                                         10


did not specifically rule on some of the claims Sullins raised, Sullins did not file a

posttrial motion under Iowa Rule of Civil Procedure 1.904(4), asking the district

associate court to decide those claims. Instead, in the FED proceeding Sullins

filed a petition for discretionary review with the supreme court, which was denied.

That action taken by the supreme court made the small claims FED proceeding

final. In the ordinance violation proceeding, it does not appear Sullins filed a

posttrial motion or a petition for discretionary review, and the time for doing so

has long since passed, so the district associate court’s decision is the final ruling

on that matter as well.

       In the district associate court appeal, Sullins had a full and fair opportunity

to litigate his claims of error surrounding the small claims proceedings. Sullins

not only had the opportunity to litigate the claims but also did in fact raise the

same claims he asserts now in the appeal from his petitions for writ of certiorari.

The remedy he seeks in this appeal is the same remedy he sought in the appeal

action in front of the district associate court—the reversal of the small claims

rulings to allow him to remain in the rental property and permit him the

opportunity to prove he was not in violation of the city ordinance.

       [A] party must try all issues growing out of the claim at one time and
       not in separate actions. An adjudication in a prior action between
       the same parties on the same claim is final as to all issues that
       could have been presented to the court for determination. Simply
       put, a party is not entitled to a “second bite” simply by alleging a
       new theory of recovery for the same wrong.

Id. (citation omitted). Sullins should not now get a second bite at the apple

through a petition for writ of certiorari to obtain a ruling on claims previously

raised before the district associate court in the appeal from the small claims
                                          11

proceedings. See id. (“A second claim is likely to be barred by claim preclusion

where the ‘acts complained of, and the recovery demanded are the same or

where the same evidence will support both actions.’” (citation omitted)).

       We thus conclude the claims Sullins raises on appeal attacking the small

claims proceedings are barred by both issue preclusion and claim preclusion.

       C. Challenges to the District Court’s Writ of Certiorari Proceeding.

       Finally, Sullins also raises challenges to the district court’s decision

denying his motion for a new trial. He claims the district court committed error

and proceeded in an irregular manner by “breaching [its] sua sponte and

independent duty to deal with issues under the Iowa Code of Judicial Conduct.”

In addressing this claim in the motion for a new trial, the district court held:

       The court conducted numerous hearings on the writ petitions and
       the procedural matters surrounding the petitions. The parties
       submitted written briefs, replies, and motions.           The record
       contained the parties’ filings along with transcripts of the hearings
       before the magistrates and on appeal. The court applied the law,
       read the record, and considered the parties arguments without
       irregularity. If an irregularity did occur, though none have been
       specifically alleged, the irregularity did not prevent Sullins from
       obtaining a fair trial.

The court also again found that the FED small claims court did not exceed its

proper jurisdiction or otherwise act illegally. Therefore, there was no reason for

the district court to find the magistrate in the small claims proceeding violated the

judicial code of conduct. We find no error at law or abuse of discretion in the

district court denial of Sullins’s motion for a new trial. See Channon v. United

Parcel Serv., Inc., 629 N.W.2d 835, 859 (Iowa 2001) (“The scope of our review of

a district court’s ruling on a motion for new trial depends on the grounds raised in

the motion. ‘To the extent the motion is based on a discretionary ground, we
                                          12


review it for an abuse of discretion.       But if the motion is based on a legal

question, our review is on error.’” (citations omitted)).

       We affirm the district court’s decision.

       AFFIRMED.
