SUMMARIES OF DECISIONS, IOWA COURT OF APPEALS April 25, 2012

SUMMARIES OF DECISIONS, IOWA COURT OF APPEALS
April 25, 2012
Pursuant to Iowa Supreme Court Rule 6.14(5), an unpublished opinion of the Iowa Court of Appeals may be cited in a brief; however, unpublished opinions shall not constitute controlling legal authority.
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No. 11-1116. [2-034] O.M.J.C. SIGNAL, INC. v. IOWA DEP'T OF TRANSP.
Appeal from the Iowa District Court for Story County, Dale E. Ruigh, Judge. AFFIRMED. Heard by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Tabor, J. (15 pages)
O.M.J.C. Signal appeals from the grant of summary judgment in favor of the Iowa Department of Transportation and Horizon Signal Technologies. OMJC sought a declaratory judgment from the district court on the question of Horizon's compliance with technical specifications in an agency rule. OPINION HOLDS: Because the district court properly determined it could not decide the matter based on OMJC's failure to exhaust administrative remedies, we affirm the grant of summary judgment.
No. 11-1041. [2-064] KENT v. DIAMOND SHINE MANAGEMENT SERVICES, INC.
Appeal from the Iowa District Court for Linn County, Nancy A. Baumgartner, Judge. REVERSED. Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. Opinion by Tabor, J. (20 pages)
An employer and its insurer ask us to reinstate a decision by the workers' compensation commissioner finding that its former employee, Bernard Kent, suffered a seventy percent loss in his earning capacity based on work-related injuries to his shoulders and arms. The district court reversed the commissioner and concluded that Kent was permanently, totally disabled by applying both a traditional analysis and the odd-lot doctrine. OPINION HOLDS: Given the level of deference we owe to the fact finder's credibility determinations in workers' compensation cases, we hold the commissioner's findings were supported by substantial evidence with regard to Kent's seventy percent disability rating and the inapplicability of the odd-lot doctrine. Moreover, the commissioner did not abuse his discretion by refusing to award Kent the costs incurred in retaining his vocational expert.
No. 11-0848. [2-096] STATE v. CARVER
Appeal from the Iowa District Court for Mills County, Richard H. Davidson, Judge. AFFIRMED. Heard by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Bower, J. (8 pages)
Kenneth Edward Carver appeals from the judgment and sentence entered following verdicts finding him guilty of second-degree sexual abuse and two counts of lascivious acts with a child. At trial, he sought to elicit testimony from the two victims regarding the number of times they had met with a counselor and whether they had told their counselor of the alleged sexual abuse perpetrated by Carver. The district court ruled the testimony was inadmissible under our supreme court's holding in State v. Cashen, 789 N.W.2d 400, 408-10 (Iowa 2010). On appeal, Carver argues the court erroneously interpreted Cashen and seeks a reversal of his conviction and a new trial. OPINION HOLDS: We find that a Cashen inquiry was not necessary as confidential records were not in dispute. However, when viewing the evidence as a whole, we are unable to find Carver was prejudiced by the omission of the evidence. Because he is unable to show he was prejudiced by the district court's evidentiary ruling, we affirm.
No. 11-1142. [2-100] HAINES v. PROGRESSIVE NORTHERN INS. CO.
Appeal from the Iowa District Court for Pottawattamie County, Timothy O'Grady, Judge. AFFIRMED. Heard by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Bower, J. (7 pages)
Sara Haines appeals from the district court order granting summary judgment in favor of the defendants on her claim for uninsured motorist benefits through her insurance carrier, Progressive Northern Insurance Company (Progressive). She contends the district court erred in interpreting her insurance policy to exclude her recovery of uninsured motorist benefits. OPINION HOLDS: Because the language of her insurance policy reducing her uninsured motorist benefits by the amount paid by any person legally responsible extinguishes any possible recovery, we affirm the district court's order granting summary judgment in favor of the defendants.
No. 11-1186. [2-103] SERRATOS v. TYSON FOODS
Appeal from the Iowa District Court for Polk County, Richard G. Blane, II, Judge. AFFIRMED. Heard by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Tabor, J. (15 pages)
Refugio Orozco Serratos held various positions at a meat packing facility now owned by Tyson Foods. While working for Tyson, he developed chronic obstructive pulmonary disease (COPD), which he argues was caused by his work environment. The deputy commissioner denied Refugio's workers' compensation claim, concluding Refugio failed to show a connection between his job and his condition. OPINION HOLDS: I. Because substantial evidence supports the commissioner's holding, we affirm the agency. II. Because the commissioner independently analyzed the claim as an occupational disease, subsequently incorporating the deputy's improper analysis of Refugio's condition as an injury did not cause prejudice. III. The deputy applied the proper causation standard to Refugio's claim.
No. 11-0174. [2-121] N/S CORP. v. CAR WASH CONSULTANTS, INC.
Appeal from the Iowa District Court for Linn County, Patrick R. Grady, Judge. REVERSED AND REMANDED IN PART, AFFIRMED IN PART. Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. Opinion by Tabor, J. Vaitheswaran, P.J., concurs; Mullins, J., concurs in part and dissents in part. (26 pages)
N/S Corporation (N/S) supplied Car Wash Consultants, Inc. (CWC) with a conveyor system and other equipment to install in James Martinez's car wash. After experiencing several problems with the system and cleaning accessories, Martinez decided to use a different distributor to equip his second car wash. The main question before us is whether the district court improperly excluded CWC's request for consequential damages related to its loss of future business with Martinez from the jury instruction concerning N/S's alleged breach of implied warranty of merchantability. OPINION HOLDS: I. Because CWC provided substantial evidence as to the certainty and foreseeability of its future business with Martinez, the district court erred by refusing to submit the question of consequential damages under the breach of implied warranty claim. The resulting prejudice was not remedied by allowing the jury to consider consequential damages under an alternative theory of recovery. II. The district court properly held that N/S's limited liability warranty language was too ambiguous to bar CWC's recovery for a breach of implied warranty. III. The jury's verdict regarding the amount owed to N/S on its open account claim was not inconsistent with a finding of breach of implied warranty, as it could be harmonized with the evidence before the jury. PARTIAL DISSENT ASSERTS: I respectfully dissent as to the majority's decision to reverse and remand on the issue of consequential damages. For the reasons articulated by the trial court in its rulings during trial and post trial, concluding as a matter of law that the alleged breach of warranty could not be the proximate cause of damages arising out of Matinez' failure to purchase equipment from CWC for a second car wash, I would affirm on that issue. In all other respects, I concur.
No. 11-0947. [2-138] IN RE MARRIAGE OF EWING
Appeal from the Iowa District Court for Story County, Timothy J. Finn, Judge. AFFIRMED AS MODIFIED AND REMANDED. Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. Opinion by Mullins, J. (9 pages)
Douglas Ewing appeals from the district court's March 24, 2011 order modifying his child support. He asserts several exhibits should not have been admitted at the modification trial as they contained hearsay and lacked foundation in the record. He also contends the district court erred in modifying the child support, and erred in switching the burden of proof to the non-moving party. Douglas claims the court improperly ordered him to pay past medical bills and provide an insurance card when those issues were not properly before the court. Finally, he accuses the district court of not being impartial. OPINION HOLDS: After considering the evidence we found to be properly admitted, we find the district court properly modified the child support; however, the amount of child support needs to be recalculated to account for the district court's change in the dependent deductions and to credit Douglas's payment of the health insurance premium. We reject the rest of Douglas's claims of error.
No. 11-1148. [2-177] IN RE MARRIAGE OF WATTONVILLE
Appeal from the Iowa District Court for Story County, Dale E. Ruigh, Judge. AFFIRMED AS MODIFIED AND REMANDED. Heard by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Mullins, J. (16 pages)
Sara Wattonville appeals, and Jason Wattonville cross-appeals, from the January 14, 2009 decree dissolving their marriage. In her appeal, Sara claims the district court erred in awarding her traditional alimony for only ten years. In addition, she argues that several components of the property division should be more favorable to her. Finally, Sara claims she is entitled to an award of both trial and appellate attorney fees. Jason cross-appeals asserting the alimony award should be reduced and his child support obligations should be recalculated in accordance with the July 1, 2009 guidelines. OPINION HOLDS: We find the district court's dissolution decree should be modified to extend the length of the alimony payments until Sara remarries or cohabitates, either party dies, or Jason reaches the age of sixty-six. We affirm all aspects of the property division, and find the parties' marital home should be listed for sale within thirty days of the issuance of procedendo, as the original deadline set by the district court has past. On Jason's cross-appeal, we remand the case to the district court for a recalculation of the child support amount under the new guidelines that went into effect July 1, 2009. Finally, we affirm the district court's denial of Sara's request for trial attorney fees, and award her $2000 in appellate attorney fees.
No. 11-0880. [2-199] ROSS v. STATE
Appeal from the Iowa District Court for Polk County, Carla T. Schemmel, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Danilson and Bower, JJ. Opinion by Bower, J. (5 pages)
Charles Ross appeals from the district court order summarily dismissing his application for postconviction relief. He contends he was not properly charged with and convicted of second-degree robbery. He also asserts his postconviction counsel was ineffective in failing to provide the transcript of the plea proceedings to the postconviction court. OPINION HOLDS: Ross failed to show a ground of fact or law that could not have been raised within the three-year statute of limitations on postconviction relief claims. Because his postconviction application was untimely, summary dismissal was appropriate.
No. 11-0928. [2-201] STATE v. BUTCHER
Appeal from the Iowa District Court for Madison County, Terry Rickers, Judge. SENTENCES VACATED AND CASE REMANDED FOR FURTHER PROCEEDINGS. Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. Opinion by Mullins, J. (8 pages)
Matthew Butcher appeals from his conviction and sentence for operating a motor vehicle while license is barred as a habitual offender, an aggravated misdemeanor, in violation of Iowa Code sections 321.560 and 321.561 (2011), and eluding a law enforcement vehicle, an aggravated misdemeanor, in violation of section 321.279(2). Butcher asserts his trial counsel rendered ineffective assistance by permitting him to plead guilty to these offenses without the record containing a factual basis to support the conviction. OPINION HOLDS: Because we find the district court failed to find that a factual basis existed for accepting the guilty pleas, and further find the current record does not provide a factual basis for the charges of operating a vehicle while barred as a habitual offender and eluding, we vacate Butcher's sentences and remand the case to the district court to provide the State an opportunity to offer the evidence necessary to establish a factual basis to support the pleas.
No. 11-1220. [2-205] STATE v. RICHARDSON-RIVERS
Appeal from the Iowa District Court for Johnson County, Karen D. Egerton, Magistrate. AFFIRMED. Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. Opinion by Mullins, J. (5 pages)
On discretionary review, the State challenges the district court's dismissal of the criminal complaint filed against Myron Richardson-Rivers for possession of alcohol under the legal age. OPINION HOLDS: As Richardson-Rivers was under the age of eighteen when the offense was committed, Iowa Code section 123.47(3)(c) (2011) requires the matter to be disposed of in juvenile court. Because this code section did not provide any penalty that could be imposed by district court, the district court had no choice but to dismiss the criminal complaint. We therefore affirm the district court's dismissal.
No. 11-0654. [2-224] IN RE D.M.T.
Appeal from the Iowa District Court for Marion County, Monty W. Franklin, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. Opinion by Mullins, J. (5 pages)
D.M.T. appeals from her involuntary civil commitment alleging her trial counsel provided ineffective assistance by failing to inform her that she had the right to contest her commitment proceedings. OPINION HOLDS: Clear and convincing evidence supports a finding that D.M.T. is seriously mentally impaired, and D.M.T. does not present any evidence or raise any argument to the contrary. Accordingly, we find D.M.T. has failed to show prejudice and affirm.
No. 11-1434. [2-238] IN RE MARRIAGE OF LAIRD
Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. Opinion by Mullins, J. (8 pages)
John Laird appeals from the district court order modifying the decree dissolving his marriage to Kimberly Laird. John argues the district court erred in changing the school district of the parties' child upon Kimberly's move. OPINION HOLDS: I. It is in the child's best interest to attend the Nashua-Plainfield school district. II. John has not preserved his argument that Kimberly should be responsible for the portion of the increased transportation costs associated with her move for appeal.
No. 11-1477. [2-239] STATE v. BREWINGTON
Appeal from the Iowa District Court for Johnson County, Steven C. Gerard II, District Associate Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Danilson and Bower, JJ. Opinion by Bower, J. (6 pages)
Aaron Brewington appeals from the sentence entered following his plea of guilty to operating while intoxicated (first offense), in violation of Iowa Code section 321J.2 (2011). He contends the district court abused its discretion in sentencing him to a 365-day jail sentence with all but ninety days suspended. OPINION HOLDS: Because the record shows the court exercised its discretion in sentencing, we affirm.
No. 11-0729. [2-256] STATE v. HAVILAND
Appeal from the Iowa District Court for Polk County, James D. Birkenholz, District Associate Judge. AFFIRMED AS MODIFIED. Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. Opinion by Mullins, J. (7 pages)
Michael Haviland appeals from a district court ruling extending a no-contact order pursuant to Iowa Code section 664A.8 (2011). He contends the district court did not have the authority to extend the no-contact order because the order had expired, and the district court's finding that he continued to pose a threat to the safety of the victim was supported by the evidence. OPINION HOLDS: I. The district court retained its authority to extend the no-contact order, even though the hearing on the application occurred after the no-contact order had expired, because the State complied with the requirements of section 664A.8 by filing an application to extend prior to the no-contact orders expiration. II. The victim's testimony as well as a prior violation of the no-contact order are substantial evidence in support of the district court's decision that it could not find that Haviland no longer poses a threat to the victim's safety. Accordingly, we affirm the district court's extension of the no-contact order, but modify the expiration date to April 21, 2016.
No. 12-0409. [2-284] IN RE C.L.P.
Appeal from the Iowa District Court for Pottawattamie County, Charles D. Fagan, District Associate Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Mullins, J. (8 pages)
A mother appeals from a juvenile court order terminating her parental rights to two children. OPINION HOLDS: I. The mother had two home study denied on her home in Alabama. The State has shown clear and convincing evidence that the children cannot be returned to her care. II. Given the mother's absence from her children's lives and one of the children's behavioral and psychological needs, we find termination is in the children's best interests. III. The juvenile court properly denied the mother's request for an additional home study. The mother had never had a visit, had not seen her children in two years, was contacting her children less by telephone, and the children testified that they would rather be adopted than be returned to their mother's care. IV. Upon our de novo review, we find the juvenile court did not err in denying the mother's motion to enlarge or amend. We affirm.
No. 12-0413. [2-285] IN RE Z.C.
Appeal from the Iowa District Court for Polk County, Constance Cohen, Associate Juvenile Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Bower, J. (6 pages)
A mother appeals the termination of her parental rights to her child. She contends the State failed to prove the grounds for termination by clear and convincing evidence. She also contends termination is not in the child's best interest and argues the exception to termination found in Iowa Code section 232.116(3)(a) (2011) should be applied in lieu of termination. OPINION HOLDS: Because there is clear and convincing evidence supporting termination of the mother's parental rights and because termination is in the child's best interests, we affirm.
No. 12-0454. [2-318] IN RE A.R.
Appeal from the Iowa District Court for Polk County, Constance Cohen, Associate Juvenile Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Tabor, J. (7 pages)
A father appeals the termination of his parental rights to his child. He challenges all five statutory grounds for termination, alleges that severing the father-daughter bond is not in the child's best interest, and asks for six more months to prove his capability as a parent. OPINION HOLDS: At the time of termination, the child could not be returned to the father's care. Six additional months would not be enough time for the father to acquire the necessary skills to provide a safe environment for the child, even as a non-custodial parent. We find termination is in the child's best interest. Because the State has met its burden under Iowa Code section 232.116 (2011), we affirm the termination of the father's parental rights.
No. 11-0936. [2-063] PAULSEN v. CITY OF WEST DES MOINES
Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge. AFFIRMED. Heard by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Vogel, P.J. (10 pages)
Jon Paulsen appeals a district court's ruling denying additional compensation following the City of West Des Moines's partial condemnation of his property. OPINION HOLDS: We find Paulsen did not meet his burden of proving additional loss of value as it pertains to his claim that he was left with no access to a public street. We therefore affirm.
No. 11-0683. [2-093] LANG v. BOARD OF ADJUSTMENT
Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge. AFFIRMED. Heard by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Vogel, P.J. Dissent by Tabor, J. (17 pages)
Property owners Daryl and Arlene Lang appeal the district court's annulling of writs of certiorari, after the Linn County Board of Adjustment's denial of agricultural exemptions for zoning. OPINION HOLDS: The district court was correct in determining the Board properly denied agricultural exemptions for a house and 6.52-acre parcel owned and occupied by the Langs, and a second house and 35-acre parcel owned by the Langs and rented to tenants, because the use of the property did not meet the definition of "agricultural purposes" under Iowa Code section 335.2 (2003). As substantial evidence exists in the record to support the findings of the district court, we affirm. DISSENT ASSERTS: I respectfully dissent. While the majority frames the question before us as one of substantial evidence to support the board's decision to uphold the zoning administrator's denial, I see the issue being challenged by the Langs is the district court's legal determination, which is not binding on an appellate court. Because the board misinterpreted the section 335.2 exemption, and also based its decision on the "primary means of livelihood" test, which was deleted from our statute nearly fifty years ago, I would reverse and remand.
No. 11-0618. [2-196] STATE v. TEMPLE
Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge. AFFIRMED. Considered by Vogel, P.J., and Potterfield and Doyle, JJ. Opinion by Vogel, P.J. (9 pages)
Keetha Temple appeals from his conviction for delivery of a controlled substance (marijuana). OPINION HOLDS: Because we agree with the district court that the State presented sufficient evidence to deny Temple's motion for judgment of acquittal and that the jury's findings are supported by substantial evidence in the record, we affirm.
No. 11-1500. [2-208] GREAT SOUTHERN BANK v. RIVERADIO, L.L.C.
Appeal from the Iowa District Court for Woodbury County, James D. Scott, Judge. AFFIRMED. Considered by Vogel, P.J., and Potterfield and Doyle, JJ. Opinion by Vogel, P.J. (9 pages)
William Graber appeals a district court's order granting summary judgment to Great Southern Bank and ordering him to pay debts incurred by Riveradio, L.L.C. OPINION HOLDS: Because the terms of the continuing guaranty signed by Graber are unambiguous, Graber remained liable as a guarantor of a promissory note executed by Riveradio, although limited to an amount of $137,298. Moreover, the district court did not err in declining to consider extrinsic evidence. We therefore affirm.
No. 10-1819. [2-084] VELAZQUEZ-RAMIREZ v. STATE
Appeal from the Iowa District Court for Crawford County, John D. Ackerman, Judge. AFFIRMED. Heard by Vaitheswaran, P.J, and Doyle and Danilson, JJ. Opinion by Vaitheswaran, P.J. Tabor, J., takes no part. (4 pages)
Esteban Velazquez-Ramirez appeals the denial of his application for postconviction relief, raising four ineffective-assistance-of-counsel claims relating to his immigration status. OPINION HOLDS: Based on the overwhelming evidence of Velazquez-Ramirez's guilt, we conclude that there is no reasonable probability the result would have changed had Velazquez-Ramirez's trial attorney dealt differently with the cited issues. For that reason, we affirm the denial of Velazquez-Ramirez's application for postconviction relief.
No. 11-1551. [2-109] IN RE MARRIAGE OF O'BRIEN
Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge. AFFIRMED AS MODIFIED AND REMANDED. Heard by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Vaitheswaran, P.J. (9 pages)
Magdalen O'Brien appeals the economic provisions of a decree dissolving her marriage to Dennis O'Brien. She claims (1) the property division was inequitable because she was not awarded a portion of Dennis's pension; (2) the spousal support award was inadequate; and (3) an award of trial attorney fees should have been made. OPINION HOLDS: We affirm the dissolution decree in all respects except that we remand the case to the district court for modification of the decree to provide that Magdalen shall receive the portion of Dennis's John Deere monthly pension benefit proposed in her qualified domestic relations order, together with survivor's benefits and to determine whether that portion shall be paid pursuant to a separate qualified domestic relations order or by some other means. We also award Magdalen appellate attorney fees of $1500. Costs on appeal shall be split equally between the parties.
No. 11-0612. [2-132] STATE v. RINCON
Appeal from the Iowa District Court for Jefferson County, Lucy J. Gamon, Judge. REVERSED AND REMANDED. Heard by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Vaitheswaran, P.J. (13 pages)
The State appeals a district court ruling granting a defendant's motion to dismiss criminal charges on double jeopardy grounds. OPINION HOLDS: The offenses of contempt and violation of a custodial order each required proof of an element that the other did not, and, therefore, the criminal charge of violation of a custodial order should not have been dismissed on double jeopardy grounds.
No. 12-0250. [2-250] IN RE C.S.
Appeal from the Iowa District Court for Dubuque County, Thomas J. Straka, Associate Juvenile Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. Opinion by Vaitheswaran, P.J. (5 pages)
A mother appeals the termination of her parental rights. OPINION HOLDS: A ground upon which termination was based was proved by clear and convincing evidence, termination was in the child's best interests, and placement of the child for an additional six months was not warranted.
No. 12-0380. [2-281] IN RE E.W.
Appeal from the Iowa District Court for Polk County, Carol S. Egly, District Associate Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. Opinion by Vaitheswaran, P.J. (5 pages)
A mother appeals the termination of her parental rights. OPINION HOLDS: A ground upon which termination was based was proved by clear and convincing evidence, termination was in the child's best interests, and placement of the child for an additional six months was not warranted, nor was error preserved on that issue.
No. 11-1184. [2-144] OFFICE OF CONSUMER ADVOCATE v. IOWA UTILITIES BOARD
Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge. REVERSED AND REMANDED. Heard by Vaitheswaran, P.J., and Potterfield and Danilson, JJ. Opinion by Potterfield, J. (11 pages)
The Iowa Utilities Board appeals from the district court's order concluding the Board erred in finding no reasonable ground existed for further investigation into an allegation of an unauthorized charge for telecommunications services. OPINION HOLDS: We do not believe the consumer's allegation that the authorizing response on the third-party verification recording was not his voice is sufficient to constitute a "reasonable ground" to initiate formal proceedings to consider a civil penalty pursuant to Iowa Code section 476.3 (2009). Because we have found no basis to reverse the Board's decision, we remand this case for entry of an order affirming the Board's decision.
No. 11-1388. [2-182] IN RE TRUSTEESHIP OF LOTZ
Appeal from the Iowa District Court for Madison County, Terry Rickers, Judge. REVERSED AND REMANDED. Heard by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Potterfield, J. (13 pages)
In December 2010, the trustees of the Trusteeship of Mary F. Lotz filed a report with the probate court and sought a declaratory ruling as to how to proceed upon the termination of the testamentary trust. The trustees recommended the creation of a charitable foundation with funds from the sale of farmland owned by the trust and accumulated 2009 and 2010 income from the trust. Objectors appeal from the court's decision overruling their objections to the report on the grounds that Akiko Jordan's objection was not filed timely, that Sharon Jordan and Dawn Giovannoni have no standing to object to the 2009 income disbursement proposal, and that the proposal for a charitable foundation was sufficiently specific. OPINION HOLDS: We conclude the district court erred in ruling no interested person raised a proper objection to the trustees' proposed distribution of the 2009 net income. We reverse the court's ruling as to the 2009 trust income and remand for further proceedings in that regard. We also remand with directions that the foundation documents be amended so as to limit the distribution of charitable trust funds for the charitable purpose described by the trustor Mary Lotz.
No. 11-1293. [2-234] IN RE MARRIAGE OF BATES
Appeal from the Iowa District Court for Story County, Kurt J. Stoebe, Judge. AFFIRMED AS MODIFIED AND REMANDED. Considered by Vogel, P.J., and Potterfield and Doyle, JJ. Opinion by Potterfield, J. (18 pages)
The district court awarded Laura and Adam Bates joint legal custody of their two children with the restriction that Adam was to have the exclusive right to make health care decisions for the children. The court awarded Adam physical care of the children. Laura appeals from both decisions as well as from the court's division of property, its assessment of court costs, and its denial of alimony and attorney fees. Both parties request appellate attorney fees. OPINION HOLDS: I. We affirm the district court's conclusion that clear and convincing evidence shows joint legal custody as it relates to health care decisions is not in the children's best interests. II. We agree with the district court's decision that Adam should have physical care of the children. III. We modify the district court's decree to award Laura $500 per month in rehabilitative alimony for five years. IV. We modify the decree and order Laura to present to the district court a QDRO equal to fifty percent of Adam's IPERS pension earned or accumulated during the marriage up until the date of trial. We otherwise affirm the district court's property division, finding it to be equitable. V. We modify the decree to provide that Adam shall pay all remaining court costs, including the fees of the guardian ad litem. VI. We find no abuse of discretion in the district court's decision not to award attorney fees. VII. We decline to award appellate attorney fees.
No. 10-1877. [2-251] COOK v. STATE
Appeal from the Iowa District Court for Polk County, Carla T. Schemmel, Judge. AFFIRMED. Considered by Vogel, P.J., and Potterfield and Doyle, JJ. Opinion by Potterfield, J. Tabor, J., takes no part. (3 pages)
Gene Cook Jr. appeals from the denial of his application for postconviction relief. OPINION HOLDS: The district court did not err in denying the application for postconviction relief. We therefore affirm.
No. 11-1078. [2-264] STATE v. KAMERICK
Appeal from the Iowa District Court for Marion County, Paul R. Huscher, Judge. AFFIRMED. Considered by Potterfield, P.J., and Danilson and Bower, JJ. Opinion by Potterfield, P.J. Dissent by Danilson, J. (9 pages)
Joshua Kamerick appeals from his conviction of domestic abuse assault, enhanced, claiming the evidence was insufficient to prove he did an act which was intended to cause pain or injury, or intended to result in physical contact which would be would be insulting or offensive. He also contends trial counsel was ineffective in failing to object to hearsay, and to prejudicial, and prior bad acts evidence. OPINION HOLDS: I. The district court did not err in overruling the motion for acquittal as substantial evidence supports the conviction. II. Kamerick has not proved his counsel was ineffective in failing to object to the officer's testimony. III. We agree the elicited testimony concerning the couple's engagement status and date was relevant to show the woman's interest or bias. Counsel's failure to object was not a breach of his duty to Kamerick. IV. The relevance of the no-contact order or Kamerick's absence at the doctor's office is less apparent and we cannot determine whether defendant's counsel was ineffective in this regard on the record before us. We preserve the claim for possible post conviction relief proceedings. DISSENT ASSERTS: I respectively dissent as I do not believe there is sufficient evidence to show Kamerick specifically intended to cause pain or injury or intended his action to be insulting or offensive to the alleged victim. See Wyatt v. Iowa Dep't of Human Servs., 744 N.W.2d 89, 94 (Iowa 2008) (rejecting the theory that the conduct could be objectively viewed as insulting or offensive). I would reverse.
No. 12-0406. [2-282] IN RE N.H.-B.
Appeal from the Iowa District Court for Polk County, Constance Cohen, Associate Juvenile Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Potterfield, J. (9 pages)
A mother appeals the second decision of the juvenile court terminating her parental rights to her son. OPINION HOLDS: Because the factors in Iowa Code section 232.116(3)(a) (child in custody of relative) and (c) (closeness of parent-child relationship) no longer preclude termination, we affirm.
No. 11-1537. [2-307] STATE v. YINGLING
Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Potterfield, J. (3 pages)
Defendant appeals from sentences imposed upon his guilty pleas to two counts of lascivious acts with a child. OPINION HOLDS: A review of the sentencing transcript reveals the sentencing court gave sufficient and thoughtful consideration to the defendant's sentences and discussed the reasons for imposing consecutive sentences. Finding no abuse of discretion, we affirm.
No. 12-0393. [2-317] IN RE A.G.
Appeal from the Iowa District Court for Polk County, Carol S. Egly, District Associate Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Potterfield, J. (4 pages)
A mother appeals the termination of her parental rights to two children. On appeal the mother asserts the juvenile court erred in: (1) finding statutory grounds existed to terminate her parental rights; (2) finding termination was in the children's best interests; (3) terminating her parental rights despite the existence of her close bond with the children; and (4) admitting certain evidence. OPINION HOLDS: I. Statutory grounds existed to terminate the mother's parental rights. II. Terminating the mother's parental rights so the children can be permanently placed is in the children's best interests. III. There is no evidence of a strong parent-child bond that would render termination of the mother's parental rights detrimental to the children. IV. The mother's arguments regarding the judicial notice and admission of evidence are moot given the mother's failure to argue that the statutory grounds for termination had not been met. Further, any error in this regard would not be reversible error as on our de novo review, we arrive at the same result as the juvenile court without resort to the evidence with which the mother takes issue.
No. 11-0214. [2-122] ERNST v. ENGEL
Appeal from the Iowa District Court for Jackson County, Bobbi M. Alpers, Judge. REVERSED AND REMANDED. Heard by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Eisenhauer, C.J. (12 pages)
Real estate agent appeals the district court's denial of her claims against her former real estate brokerage firm for unpaid and underpaid commissions. OPINION HOLDS: Substantial evidence does not support the conclusion the parties reached an oral agreement the agent's commissions were not earned until a transaction closed. The sellers and buyers in four pending transactions had executed contracts prior to the termination of the agent's affiliation with the brokerage firm. Under Iowa common law, the agent earned her commission prior to her departure from the brokerage firm.
No. 11-0743. [2-169] SCHAWITSCH v. STATE
Appeal from the Iowa District Court for Lee (South) County, Mary Ann Brown, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Danilson and Bower, JJ. Opinion by Eisenhauer, C.J. (12 pages)
Defendant appeals the district court's dismissal of his third application for postconviction relief. OPINION HOLDS: Defendant has failed to prove the alleged "newly discovered evidence" entitles him to a new trial. Because defendant failed to establish he suffered prejudice, his ineffective-assistance-of counsel claim must fail.
No. 11-1059. [2-230] STATE v. OVERTON
Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Danilson and Bower, JJ. Opinion by Eisenhauer, C.J. (6 pages)
Defendant appeals his conviction for forgery, arguing the evidence is insufficient to support the jury's verdict and his trial counsel was ineffective in failing to object to the "no-inference-of-guilt" jury instruction. OPINION HOLDS: Sufficient facts support the jury's determination defendant presented the check to the victim, defendant knew the check was forged, and defendant specifically intended to defraud the victim. We preserve defendant's ineffective-assistance claim for a possible postconviction proceeding.
No. 11-1822. [2-248] IN RE A.M.
Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Danilson and Bower, JJ. Opinion by Eisenhauer, C.J. (6 pages)
A father appeals from the order terminating his parental rights to three children. He contends the statutory grounds for termination were not proved by clear and convincing evidence and termination is not in the children's best interests. OPINION HOLDS: Having found clear and convincing evidence supporting termination under Iowa Code section 232.116(1)(h) (2011) and concluded termination of the father's parental rights promotes the children's best interests, we affirm.
No. 11-0845. [2-258] STATE v. JOHNSON
Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Danilson and Bower, JJ. Opinion by Eisenhauer, C.J. Special concurrence by Danilson, J. (6 pages)
Gerald Johnson appeals from his conviction of possession of a controlled substance and possession of a controlled substance with intent to deliver. He contends his attorney was ineffective in not raising "appropriate grounds" in his objection to the admission of an exhibit—a CD containing a recording of a phone call Johnson made while in jail. OPINION HOLDS: Johnson's attorney was not ineffective in failing to object to the CD based on lack of foundation. Johnson's attorney was not ineffective in failing to make a hearsay objection to the writing on the CD. SPECIAL CONCURRENCE ASSERTS: I concur in all respects except to write that although I would agree counsel was ineffective for failing to object to the CD, State's exhibit 5, for lack of foundation, Johnson was not prejudiced by the admission of the recording. The CD recording was simply cumulative evidence repeating the testimony of Officer Carney and what Johnson admitted to the officer while at the scene.
No. 12-0408. [2-314] IN RE C.A.M.
Appeal from the Iowa District Court for Pottawattamie County, Craig Dreismeier, District Associate Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Eisenhauer, C.J. (5 pages)
A mother appeals from the order terminating her parental rights to her child, born in July 2009. She contends the State did not prove the statutory grounds for termination and termination is not in the child's best interests because of the close parent-child relationship. OPINION HOLDS: The court terminated the mother's parental rights under Iowa Code section 232.116(1)(d), (h), (i), and (l) (2011). Clear and convincing evidence supports termination under section 232.116(1)(h), as the mother's continued substance abuse makes it impossible to return the child to her care. Termination is in the child's best interests. Although there is evidence of a strong parent-child bond, we do not find termination would be detrimental to the child based solely on that parent-child relationship.
No. 11-0690. [2-024] IN RE ESTATE OF MARTIN
Appeal from the Iowa District Court for Marshall County, Michael J. Moon and Carl D. Baker, Judges. AFFIRMED AND REMANDED WITH DIRECTIONS. Heard by Vaitheswaran, P.J., and Doyle and Tabor, JJ. Opinion by Doyle, J. (13 pages)
Norma Dinnes appeals the probate court's denial of her bailment claim against the estate of Lewis R. Martin, contending her property stored by the decedent was damaged and lost due to the decedent's negligence. She requested return of her damaged property and monetary damages for repairs and replacement of her lost property. OPINION HOLDS: We decline to apply the sections of the Restatement (Third) of Torts adopted in Thompson v. Kaczinski, 774 N.W.2d 829 (Iowa 2009), to this contract case. We agree with the district court's conclusion that the bailment was gratuitous and find the court applied the correct standard of care in its ruling. We find substantial evidence supports the district court's conclusion the damage to and disappearance of Norma's property was not due to a violation of the standard of care to be met by Lewis Martin and affirm its denial of Norma's claim for damages. However, there is no dispute the estate has in its possession five items that belong to Norma. She requested the items be returned. We remand for an order providing for the return of Norma's property to her.
No. 11-1174. [2-102] SCHROEDER v. PUBLIC EMPLOYMENT RELATIONS BOARD
Appeal from the Iowa District Court for Polk County, D.J. Stovall, Judge. REVERSED AND REMANDED WITH INSTRUCTIONS. Heard by Eisenhauer, C.J., and Doyle and Mullins, JJ. Opinion by Doyle, J. (16 pages)
Deborah Schroeder appeals from the district court's judicial review ruling affirming the finding she was exempt from the grievance process set forth in Iowa Code section 8A.415 (2009). OPINION HOLDS: Considering section 8A.415 in its entirety, its purpose and history, similar statutes, and prior decisions of the Iowa Supreme Court, we conclude the Public Employment Relations Board and the district court erroneously determined Schroeder was a member of the Iowa Department of Education's "professional staff" and therefore exempt from the provisions of chapter 8A. As a result, the decision of the district court is reversed and the case remanded for further proceedings.
No. 10-1625. [2-119] LANGDEAUX v. STATE
Appeal from the Iowa District Court for Dickinson County, David A. Lester, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Doyle, J. (17 pages)
The applicant, James Langdeaux, appeals from the district court's denial of an application for postconviction relief filed nearly twenty years ago. He claims trial counsel performed deficiently in the following areas: (1) failing to investigate a witness's statement, (2) providing inadequate advice about a plea offer from the State, (3) failing to challenge a juror for cause, and (4) failing to object to prosecutorial misconduct. Langdeaux additionally asserts the nonretroactivity of the Iowa Supreme Court's decision in State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006), violates the Equal Protection and Separation of Powers Clauses under the federal and state constitutions. Finally, he claims the district court "abused its discretion by failing to hold a sua sponte hearing on Langdeaux's complaint of a breakdown in attorney/client communication during postconviction proceedings." OPINION HOLDS: We find no merit to Langdeaux's various claims and affirm the district court's denial of his application for postconviction relief.
No. 11-1291. [2-147] ROOKER v. FLANAGAN CORP.
Appeal from the Iowa District Court for Polk County, Robert A. Hutchison and Eliza Ovrom, Judges. REVERSED AND REMANDED. Heard by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Doyle, J. (11 pages)
Casey Rooker appeals from the district court's grant of summary judgment in favor of defendant Timothy Flanagan, individually. OPINION HOLDS: Because, for purposes of the summary judgment motion, Flanagan admitted he was a non-licensee, and he gave Rooker, an underage drinker, alcoholic drinks, we conclude the district court erred in dismissing Rooker's common law negligence claims against Flanagan individually. We therefore reverse and remand for reinstatement of Rooker's common law negligence claims against Flanagan individually and for further proceedings.
No. 11-0550. [2-194] IN RE MARRIAGE OF KRUSE
Appeal from the Iowa District Court for Black Hawk County, Bruce B. Zager, Judge. AFFIRMED. Considered by Vogel, P.J., and Potterfield and Doyle, JJ. Opinion by Doyle, J. (4 pages)
Daryl Kruse appeals and Sarah Kruse cross-appeals the economic provisions of the decree dissolving their marriage. OPINION HOLDS: Upon our de novo review, we find the district court's property valuation and distribution was equitable in all respects. We accordingly affirm the district court's decree pursuant to Iowa Court Rules 21.29(1)(a) and (e). We decline to award Sarah appellate attorney fees and assess court costs equally to both parties.
No. 12-0358. [2-313] IN RE D.W. AND A.W.
Appeal from the Iowa District Court for Washington County, Crystal S. Cronk, District Associate Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Doyle, J. (9 pages)
A mother appeals the termination of her parental rights to her children. OPINION HOLDS: Because we agree with the juvenile court that termination of the mother's parental rights was proper under Iowa Code section 232.116(1)(h) (2011), termination was in the children's best interests, and because we find the juvenile court did not abuse its discretion in denying the mother's request for additional time for reunification, we affirm the court's decision terminating the mother's parental rights.
No. 10-0296. [2-117] STATE v. FLINCHUM
Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge. REVERSED AND REMANDED. Heard by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Danilson, J. (18 pages)
The State appeals the district court's dismissal, on speedy trial grounds, of first-degree arson charges against the defendants, Beverly Flinchum and William Flinchum. OPINION HOLDS: Because the defendants' one-year speedy trial rights were triggered by the September 2009 arraignment, the trial court erred in dismissing this action on speedy trial grounds. We therefore reverse the ruling granting the motion to dismiss on speedy trial grounds and remand for further proceedings.
No. 11-0441. [2-125] IN RE MARRIAGE OF KITZMAN
Appeal from the Iowa District Court for Grundy County, Bradley J. Harris, Judge. AFFIRMED. Heard by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Danilson, J. (23 pages)
William Kitzman appeals and Melinda Kitzman cross-appeals from various economic provisions of a dissolution decree. OPINION HOLDS: Upon our review, we affirm the district court's judgment. Although Melinda was entitled to credit for at least the appreciation of the premarital assets in this long-term marriage, William was entitled to some credit for his inherited property. These facts, and any other miscalculations identified by the parties are, to a degree, offsetting and otherwise do not fundamentally change the equalization payment calculated by the district court. We also affirm the court's decision declining to award trial attorney fees to Melinda. We award appellate attorney fees to Melinda in the sum of $4500.
No. 11-1413. [2-149] STATE v. BRISCO
Appeal from the Iowa District Court for Scott County, Gary D. McKenrick, Judge. REVERSED AND REMANDED. Heard by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Danilson, J. (11 pages)
The State appeals from the district court's order granting the defendant's motion to dismiss on speedy indictment grounds. OPINION HOLDS: We conclude the proposed amendment to the trial information did not charge a "wholly new and different offense" and thus could be amended under Iowa Rule of Criminal Procedure 2.4(8). We therefore reverse and remand.
No. 11-1009. [2-203] STATE v. WOLCOTT
Appeal from the Iowa District Court for Cerro Gordo County, Christopher Foy, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Danilson and Bower, JJ. Opinion by Danilson, J. (8 pages)
Defendant seeks review of a restitution order and requests a remand for a hearing on the issue with appointed counsel. OPINION HOLDS: Because defendant directly appealed his sentence before the supplemental restitution order was entered and the time for a 910.3 hearing has passed, we affirm.
No. 12-0270. [2-247] IN RE J.S.
Appeal from the Iowa District Court for Linn County, Susan Flaherty, Associate Juvenile Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Danilson and Bower, JJ. Opinion by Danilson, J. (8 pages)
A mother appeals the termination of her parental rights to her son. OPINION HOLDS: We conclude clear and convincing evidence supports the statutory ground for termination; termination is in the child's best interest; and no factors serve to preclude termination. We therefore affirm.
No. 11-1188. [2-179] PATRIOT BANK v. RICHARD T. AHRENS
Appeal from the Iowa District Court for Poweshiek County, Annette J. Scieszinski, Judge. AFFIRMED. Considered by Danilson, P.J., Bower, J., and Mahan, S.J. Opinion by Mahan, S.J. Mullins, J., takes no part. (7 pages)
Richard Ahrens is the sole shareholder of R & C Industries, Inc. (R & C). In November 2004, Ahrens signed a promissory note for $900,000 with Patriot Bank. He signed above a line, "Richard T. Ahrens, President," and above a line, "Richard T. Ahrens, Individually." Patriot Bank filed a petition in January 2010 seeking to foreclose on the mortgage and to obtain a personal judgment against Ahrens based on the 2004 promissory note. Ahrens denied he was personally liable. The district court found Ahrens was personally liable for the loan of November 2004. The court entered judgment against Ahrens for $405,073.79, plus interest and attorney fees. Ahrens appeals the decision of the district court. OPINION HOLDS: We concur in the district court's conclusion that at the time the parties signed the promissory note they intended Ahrens would be personally liable for the debt. We agree with the district court's conclusion Ahrens failed to prove his affirmative defense of fraudulent inducement. Furthermore, we also conclude Ahrens has not sufficiently proven his counterclaim of fraudulent inducement. The evidence does not support a finding Ahrens signed the contract based upon misrepresentations by Rick Happe of Patriot Bank.
No. 11-1690. [2-278] GUDENKAUF v. GEE
Appeal from the Iowa District Court for Buchanan County, Todd A. Geer, Judge. AFFIRMED. Considered by Vogel, P.J., Doyle, J., and Zimmer, S.J. Opinion by Zimmer, S.J. (10 pages)
Ryan Gudenkauf and Jennifer Gee are the parents of a child, born in April 2009. Ryan filed an application for custody, visitation, and support. The district court issued a decree granting the parties joint legal custody with Jennifer having physical care of the child and Ryan having visitation. Ryan appeals the decision of the district court. OPINION HOLDS: I. Jennifer has shown she has the ability to meet all of the child's needs. On the other hand, Ryan has always had the assistance of either Jennifer or his family when caring for the child. We conclude it is in the child's best interests to be placed in Jennifer's physical care. II. Even if Ryan remained in the Independence area, Jennifer credibly testified that she would be moving to the Des Moines area by the end of the summer of 2011. We agree with the district court's conclusion that a joint physical care arrangement was not practicable. III. Ryan requested additional visitation. The court left it to the parties to reasonably agree to extended weekends. We affirm the visitation schedule as set out in the paternity decree. IV.We award no appellate attorney fees.

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