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Nebel v. Lott

Court of Appeals of Iowa

March 8, 2017

DAVID NEBEL d/b/a NEBEL ELECTRIC, Plaintiff-Appellant,
v.
DAVID L. LOTT and JULIE A. LOTT, DUBUQUE BANK AND TRUST, and DUBUQUE CITY OF HOUSING SERVICES DEPARTMENT, Defendants-Appellees.

         Appeal from the Iowa District Court for Dubuque County, Monica L. Ackley, Judge.

         Plaintiff appeals from the district court's grant of a directed verdict against him in his action to foreclose a mechanics' lien. AFFIRMED IN PART AND REVERSED IN PART.

          Russel A. Neuwoehner of Lange & Neuwoehner, Dubuque, for appellant.

          Susan M. Hess of Hammer Law Firm, P.L.C., Dubuque, for appellees David and Julie Lott.

          Edward F. Henry of Fuerste, Carew, Juergens, & Sudmeier, P.C., Dubuque, for appellee Dubuque Bank and Trust.

          Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ.

          POTTERFIELD, Judge.

         David Nebel filed a petition to foreclose his mechanic's lien on property owned by the Lotts, maintaining the Lotts owed him $9283.69 for materials and labor he provided doing electrical work on one of their rental properties. Following a hearing on the petition, the district court granted the defendants' motion for a directed verdict. On appeal, Nebel maintains the district court applied the wrong statute and, as a result, the defendants' motion for directed verdict was improperly granted. Nebel also challenges the district court's award of attorney fees to the defendants.

         "An action to enforce a mechanic's lien is in equity and our review is de novo." Giese Constr. Co. v. Randa, 524 N.W.2d 427, 430 (Iowa Ct. App. 1994); see also Iowa Code § 572.26 (2011) ("An action to enforce a mechanic's lien shall be by equitable proceedings, and no other cause of action shall be joined therewith."). "In mechanic's lien cases, involving as they do numerous charges and counter charges which depend entirely on the credibility of the parties, we have frequently held the trial court is in a more advantageous position than we to put credence where it belongs." Sulzberger Excavating, Inc. v. Glass, 351 N.W.2d 188, 191-92 (Iowa Ct. App. 1984) (citation omitted).

         Here, the court found that Nebel had failed to comply with the statute controlling the perfection of a mechanics lien, pursuant to Iowa Code section 572.8 (2013), and thus determined his petition to foreclose the lien failed. However, it is undisputed the court applied the wrong statute. Nebel filed his mechanic's lien in February 2012. In 2012, our legislature made a number of significant changes to the controlling statutes, but those changes were explicitly stated to take effect on January 1, 2013. See 2012 Iowa Acts ch. 1105 §§ 4, 27. Thus, Iowa Code section 572.8 (2011) controls here. That section provides:

1.A person shall perfect a mechanic's lien by filing with the clerk of the district court of the county in which the building, land, or improvement to be charged with the lien is situated a verified statement of account of the demand due the person, after allowing all credits, setting forth.
a. The date which such material was first furnished or labor first performed, and the date on which the last of the material was furnished or the last of the labor was performed.
b. The legal description of the property to be charged with the ...

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