December 21, 2016
HEATHER HILDRETH, Plaintiff-Appellant,
CITY OF DES MOINES, IOWA, Defendant-Appellee.
from the Iowa District Court for Polk County, Dennis J.
plaintiff filed a writ of certiorari with the district court,
claiming the city had acted illegally and unconstitutionally
by declaring her dog to be vicious and dangerous. The
district court annulled the writ, and the plaintiff appealed.
C. McCleary, Des Moines, for appellant.
Jessica Dawn Spoden, Assistant City Attorney, Des Moines, for
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
action originated after Heather Hildreth's dog was
determined to be a "dangerous dog" by the City of
Des Moines and impounded by the Animal Rescue League.
Hildreth filed a writ of certiorari claiming the city had
acted illegally and unconstitutionally by declaring the dog
dangerous and vicious. On February 20, 2015, the district
court rejected Hildreth's claims, annulling the writ and
rescinding the previous stay of the order to euthanize. In
this appeal, Hildreth challenges the merits of the certiorari
Standard of Review.
applicable to appeals in ordinary actions govern our review
of an appeal from a district court's judgment in a
certiorari proceeding. Iowa R. Civ. P. 1.1412; see
O'Malley v. Gundermann, 618 N.W.2d 286, 290 (Iowa
2000). "Our review is limited to correction of errors at
law, and we are bound by the findings of the district court
if supported by substantial evidence."
O'Malley, 618 N.W.2d at 290.
appeal, Hildreth raises numerous issues that were not decided
by the district court in its ruling on the petition for writ
of certiorari, namely, whether the three-day window to appeal
the determination a dog is vicious is unduly burdensome;
whether the taking of Hildreth's dog was a seizure of
property in violation of the Fourth Amendment; whether an
administrative hearing between a citizen and the city, heard
by a city employee, involves a conflict of interest violating
the citizen's right to due process; whether Hildreth had
a Sixth Amendment right to counsel because a violation of the
citations could result in thirty days' incarceration;
whether the city ordinance defining "dangerous
animals" is constitutionally defective because it fails
to take into account if the animal was provoked when it acted
in the prohibited manner; whether the city ordinance defining
"dangerous animals" is unconstitutional due to
being vague or overbroad; whether the city's euthanizing
of the dog was done without a statutory provision; whether
breed-specific ordinances are unconstitutional; whether
interfering in the relationship between a pet owner and the
pet is cruel and unusual, violating article 1, section 17 of
the Iowa Constitution; whether discovery should be allowed
prior to a city hearing; and whether sanctions were
appropriate in this case for various named
as we can tell, none of the aforementioned claims are
properly before this court for our review. See Lamasters
v. State, 821 N.W.2d 856, 862 (Iowa 2012) ("It is a
fundamental doctrine of appellate review that issues must
ordinarily be both raised and decided by the district court
before we will decide them on appeal." (citation
omitted)). Moreover, Hildreth failed to include a proper
statement in her brief explaining how any of these
arguments were preserved, which violates Iowa Rule of
Appellate Procedure 6.903(2)(g)(1). Rule 6.903(2)(g)(1)
The argument section shall be structured so that each issue
raised on appeal is addressed in a separately numbered
division. Each division shall include . . .: A statement
addressing how the issue was preserved for appellate review,
with references to the places in the record where the issue
was raised and decided.
decline to consider these claims.
Objection to the Writ of Certiorari Hearing.
maintains her due process rights were violated when the
hearing on the writ of certiorari took place on January 23,
2015. In reviewing the transcript from the hearing,
Hildreth's counsel objected to the timing of the hearing
but not on the ground that it violated Hildreth's
constitutional rights. See Lamasters, 821 N.W.2d at
our review of the record, on January 12, 2015, the court set
the hearing on the writ of certiorari for January 23, 2015,
at 9:00 a.m. Hildreth then filed a motion to reschedule that
hearing to an earlier date, noting that she was
scheduled to be in another hearing with a different judge on
January 23 at 9:00 a.m. The motion also stated she
"requests a hearing at the earliest possible date given
that her dog has been in isolation for over 90 days."
The same day, Hildreth filed another motion asking that the
hearing "be rescheduled because the plaintiff has filed
a motion for summary judgment that may do away with the need
for a hearing on the writ." On January 14, the court
filed an order stating, "The hearing previously set for
January 23, 2015, beginning at 9:00 a.m. is continued to
begin that same day but beginning at 10:30 a.m."
surprise or lack of preparedness is not the result of the
court's order but rather is attributable to Hildreth. If
we assume that Hildreth's objection to the
court's statement the hearing would take place as
scheduled was a motion to continue, we find no abuse of
discretion in the court's denial of it. See In re
C.W., 554 N.W.2d 279, 281 (Iowa Ct. App. 1996)
("Denial of a motion to continue must be unreasonable
under the circumstances before we will reverse.").
Challenge to the Court's Ruling on the Writ of
challenges the district court's annulling of the writ.
She maintains the district court's interpretation of the
city's so-called "dangerous dog" ordinance is
In pertinent part, Des Moines, Iowa, art. VI § 18-196
Dangerous animal means any animal, including a dog, . . .
that has bitten or clawed a person while running at large and
the attack was unprovoked, or any animal that has exhibited
vicious propensities in present or past conduct, including
such that the animal:
bitten or clawed a person on two separate occasions within a
12-month period. Hildreth maintains the ordinance provides
that a dog has exhibited "vicious propensities"
only if the dog "has bitten or clawed a person on two
separate occasions within a 12-month period" when
unprovoked. Both the administrative hearing officer and the
district court interpreted the ordinance as providing
alternative ways that a dog can exhibit vicious propensities;
either by attacking someone while running at large when the
attack was unprovoked or by biting or clawing a
person on two separate occasions-whether provoked or
unprovoked. We agree. The term "unprovoked" appears
in a different clause of the ordinance, which is separated
from the applicable clause by the word "or." As
such, we think there is a clear intent for it to apply to
only the first scenario. See Meduna v. City of
Crescent, 761 N.W.2d 77, 81 (Iowa 2008) ("[W]ords
in ordinances are given their ordinary and common meanings by
considering the context within which they are used.");
see also Or, Webster's New College
Dictionary (1981) ("[U]sed as a function word to
indicate an alternative.").
does not dispute that substantial evidence supports the
conclusion that her dog bit two children within a
twelve-month period. She maintains her dog was justified in
its actions due to being provoked by the children, but as the
district court noted, the "non-provocation argument is
no error in the interpretation and application of the city
careful review of the record and of the appellant's
briefs, we find no other claims that are properly before us
to review. We affirm the district court's ruling on the
writ of certiorari.
 In another appeal, Hildreth challenged
the dismissal of an action involving her "Application
for Immediate Return of Seized Property"-namely, the
dog. The court's opinion in that appeal is also filed
today. See Hildreth v. Des Moines, No. 15-0509, 2016
WL (Iowa Ct. App. Dec. 21, 2016).
 Hildreth raises additional arguments
in her reply brief. "Parties cannot assert an issue for
the first time in a reply brief. When they do, this court
will not consider the issue." Sun Valley Iowa Lake
Ass'n v. Anderson, 551 N.W.2d 621, 642 (Iowa 1996)
 In her brief, Hildreth provides one
general statement of error preservation, claiming,
"Hildreth preserved error in her motion on March 9,
2015." This motion was a motion to enlarge or amend,
which the district court denied. Similarly, in her reply
brief, Hildreth states, "The preservation of error will
not be repeated before each issue but is incorporated by
reference herein. Hildreth preserved every one of her errors
in multiple 1.904(2) motions of which all are not included in
the appendix but they were filed on Dec. 15, 2014, Jan. 21,
2015, Mar. 7 and 9, 2015." Raising an issue before the
district court is not sufficient to preserve it for review.
See Lamasters, 821 N.W.2d at 862.
 At the time the court announced the
hearing was to take place, Hildreth's attorney objected,
stating, "And just for the record, I want to object
because of surprise and wasn't ready." Hildreth did
not move for a continuance.