SUMMARIES OF DECISIONS, IOWA COURT OF APPEALS June 27, 2012

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SUMMARIES OF DECISIONS, IOWA COURT OF APPEALS

June 27, 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Pursuant to Iowa Supreme Court Rule 6.14(5), an unpublished opinion of the Iowa Court of Appeals may be cited in a brief; however, unpublished opinions shall not constitute controlling legal authority.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. 11-0356. [2-289] STATE v. HILGENDORF

Appeal from the Iowa District Court for Iowa County, Denver D. Dillard, Judge. AFFIRMED. Heard by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Eisenhauer, C.J. (15 pages)

Defendant appeals his judgment and sentence for first-degree murder. He claims the district court erred in admitting his coconspirator's hearsay statements. He additionally claims his trial counsel was ineffective. OPINION HOLDS: Assuming the coconspirator's statements were not made in furtherance of the conspiracy, we nevertheless conclude the overall circumstances affirmatively establish any error did not affect the substantive rights of the defendant. We preserve his ineffective-assistance claim for a possible postconviction relief proceeding.

No. 12-0516. [2-321] IN RE L.M.

Appeal from the Iowa District Court for Polk County, Louise Jacobs, District Associate Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Eisenhauer, C.J. (4 pages)

A father appeals from the order terminating his parental rights to his child, born in 2002. He contends the State did not make reasonable efforts to reunify him with the child and the court erred in terminating his parental rights. OPINION HOLDS: The father has not preserved either of his claims for our review.

No. 11-1567. [2-373] STATE v. COLEMAN

Appeal from the Iowa District Court for Black Hawk County, James D. Coil, District Associate Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Eisenhauer, C.J. (6 pages)

John Coleman appeals from his conviction, following a jury trial, of possession of a controlled substance (marijuana), third offense. He contends the court erred in denying his motion for judgment of acquittal and his trial attorney was ineffective. OPINION HOLDS: There was sufficient evidence from which a reasonable jury could find Coleman knowingly possessed the marijuana found in the patrol car. The court did not err in denying Coleman's motion for judgment of acquittal. We preserve his ineffective-assistance claim.

No. 12-0807. [2-483] IN RE B.B.

Appeal from the Iowa District Court for Cherokee County, Mary L. Timko, Associate Juvenile Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Eisenhauer, C.J. (8 pages)

A mother appeals from the order terminating her parental rights to her child. She contends the State failed to make reasonable efforts to reunify her with the child, the statutory grounds for termination were not proved by clear and convincing evidence, the court abused its discretion in denying her request for six additional months, and termination was not in the child's best interests. OPINION HOLDS: The grounds for termination under Iowa Code section 232.116(1)(h) (2011) were proved. The State made reasonable efforts to reunite the mother with her daughter. Under the circumstances of this case, we find no error in the court's refusal to give the mother more time. Termination is in the best interests of the child.

No. 12-0847. [2-523] IN RE S.B.

Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Eisenhauer, C.J. (4 pages)

A father appeals from the order terminating his parental rights to his child. He contends the court erred in denying his request to keep the record open to allow for deposition of a caseworker. OPINION HOLDS: The father has not challenged the termination of his parental rights under Iowa Code section 232.116(1)(h) (2011). We find clear and convincing evidence, without the caseworker's testimony, supports termination on this ground and affirm. The father waived his claim the court erred in not keeping the record open because he informed the court he preferred to stand on the record as it was at that time and then consented to the court closing the record.

No. 11-1110. [2-265] IN RE ESTATE OF BURESH

Appeal from the Iowa District Court for Linn County, Nancy A. Baumgartner, Judge. AFFIRMED. Heard by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Vogel, P.J. (13 pages)

Wesley Buresh Jr. and Benjamin Buresh appeal from the district court's various rulings all related to the jury's verdict that Lenora Buresh's will should not be set aside. The jury found Lenora had the mental ability to make a will, that it was not procured by undue influence, and that it was duly executed. OPINION HOLDS: We affirm the district court with respect to the denial of the motion for directed verdict and the motion for judgment notwithstanding the verdict, as there was sufficient evidence to justify submitting the case to the jury when viewing the evidence in the light most favorable to the nonmoving party. We also conclude the district court did not err in denying the motion for new trial because the jury's verdict finding Lenora's will was duly executed is supported by sufficient evidence.

No. 11-1636. [2-376] LEAVENS v. SECOND INJURY FUND

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 Vogel, P.J. (15 pages)

Wendy Leavens appeals from the district court's ruling on judicial review, affirming the denial of benefits under the Second Injury Fund. OPINION HOLDS: We agree with the Fund that: (1) the May 2008 settlement agreement entered between Leavens and her employer, Maytag, would not be given preclusive effect in establishing whether Leavens sustained a second injury because the Second Injury Fund did not have an opportunity to fully and fairly litigate the issue; (2) the agency did not act in an unreasonable, arbitrary, or capricious manner, or abuse its discretion, when the application for rehearing was deemed denied under Iowa Administrative Code rule 876-4.24, because the commissioner's affirmance of Leavens's appeal to the commissioner met the requirements of Iowa Code section 17A.16(1) (2011); and (3) substantial evidence supports the agency's determination that Leavens did not sustain a permanent disability as a result of her December 20, 2006 injury. We therefore affirm.

No. 12-0809. [2-484] IN RE C.P.

Appeal from the Iowa District Court for Linn County, Susan Flaherty, Associate Juvenile Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Vogel, P.J. (5 pages)

A mother appeals the district court's order adjudicating her child in need of assistance. OPINION HOLDS: Based on the mother's pending criminal charges relating to the death of a child who suffered head injuries while in the sole custody, care, and control of the mother and her paramour, the district court properly adjudicated C.P. a child in need of assistance, and the adjudication and dispositions were in C.P.'s best interests. We therefore affirm.

No. 11-1183. [2-143] SENECA WASTE v. SHEAFFER MANUFACTURING

Appeal from the Iowa District Court for Lee County, John M. Wright, Judge. AFFIRMED. Heard by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Vaitheswaran, P.J. (8 pages)

Defendants appeal a district court judgment for money damages in excess of a stated not-to-exceed contract price. OPINION HOLDS: Substantial evidence supports the district court's findings that the defendants modified the scope of the written contract and that the modification caused the plaintiff to exceed the not-to-exceed price in the contract.

No. 11-1206. [2-429] STATE v. CHAWECH

Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge. REVERSED AND REMANDED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Vaitheswaran, P.J. (4 pages)

A defendant appeals the district court's ruling denying her motion to dismiss a trial information on speedy trial grounds. OPINION HOLDS: The State did not show good cause for the delay in bringing the defendant to trial within ninety days of the trial information being filed; and therefore, the defendant's motion to dismiss should have been granted.

No. 11-2053. [2-446] STATE v. GRAHAM

Appeal from the Iowa District Court for Des Moines County, Michael J. Schilling, Judge. AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR RESENTENCING. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Vaitheswaran, P.J. (5 pages)

A defendant challenges the portion of his sentence requiring him to submit a physical specimen for DNA profiling. OPINION HOLDS: As the sentencing court did not consider one of the mandatory factors for ordering DNA profiling, that portion of the defendant's sentence is vacated and remanded to the district court for consideration of the mandatory factors enumerated in the DNA profiling statute.

No. 12-0521. [2-476] IN RE C.P.

Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Vaitheswaran, P.J. (4 pages)

A mother appeals the termination of her parental rights, contending the State failed to prove the grounds for termination cited by the juvenile court. OPINION HOLDS: Clear and convincing evidence supports a ground for termination cited by the juvenile court.

No. 11-0666. [2-255] STATE v. SALKIL

Appeal from the Iowa District Court for Scott County, Gary D. McKenrick, Judge. REVERSED IN PART AND REMANDED. Heard by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Potterfield, J. (17 pages)

James Salkil appeals from judgment and sentence imposed upon his convictions for first-degree kidnapping and assault causing serious injury. OPINION HOLDS: Because there was substantial evidence to submit only one of the theories of first-degree kidnapping, the district court erred in instructing the jury and we reverse and remand for a new trial. The district court did not abuse its discretion in its evidentiary rulings.

No. 11-1847. [2-279] IN RE MARRIAGE OF HAYES

Appeal from the Iowa District Court for Dallas County, Gregory A. Hulse, Judge. AFFIRMED AS MODIFIED. Heard by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Potterfield, J. (10 pages)

Michael Hayes appeals and Kathleen Hayes cross-appeals from the economic provisions of the dissolution decree. OPINION HOLDS: We modify the division of Michael's performance-based bonuses and find the remainder of the district court's property division equitable.

No. 11-1145. [2-297] SUNRISE RETIREMENT COMMUNITY v. DHS

Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge. REVERSED AND REMANDED WITH DIRECTIONS. Heard by Eisenhauer, C.J., and Potterfield and Doyle, JJ. Opinion by Potterfield, J. (14 pages)

This is an administrative law appeal from a decision by the director of the Iowa Department of Human Services, which was affirmed on judicial review by the district court. The director's decision upheld the disallowance by its auditors of costs for laboratory services, x-rays, and prescription drugs traditionally included on the annual reports required to be filed by nursing homes. All parties agree that the costs listed on the reports had been incurred on behalf of Medicare patients for lab services, x-rays, and prescription drugs received by the patients, and had been paid by the nursing homes. The issue is whether the director's decision to disallow the costs is in compliance with the administrative rules governing the cost reports and whether the change in practice is within the scope of Iowa Code section 17A.19(10)(h) (2011). OPINION HOLDS: Because administrative rules governing the Medicaid payment rate for nursing facilities do not exclude the costs expended for Medicare Part A patient lab, x-ray, and prescription drug services, which the facilities must annually report as costs—and in the past had been considered to be "allowable costs"—we reverse and remand with directions to return this matter to the agency.

No. 11-1389. [2-368] WELLS FARGO BANK v. VETICK

Appeal from the Iowa District Court for Polk County, Donna L. Paulsen, Judge. AFFIRMED. Heard by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Potterfield, J. (12 pages)

Kathleen and John Vetick appeal from the district court ruling granting summary judgment to Wells Fargo Bank in this mortgage foreclosure action. OPINION HOLDS: Because there is no dispute that both Kathleen and John signed the mortgage and that Kathleen is in default on the loan she has with the bank, the bank is entitled to judgment as a matter of law. We reject the Veticks' Iowa Rule of Civil Procedure 1.943 two-dismissal argument. We affirm the district court.

No. 11-1410. [2-401] STATE v. ABBEY

Appeal from the Iowa District Court for Polk County, Gregory D. Brandt, District Associate Judge, (motion to suppress and sentencing) and Joe E. Smith, Judge (trial). AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Potterfield, J. (6 pages)

Trevor Abbey appeals from the district court order denying his motion to suppress evidence he contends was obtained in violation of his rights under the Iowa and United States Constitutions. OPINION HOLDS: I. The Iowa constitutional claim was not preserved for appeal. II. Because the officer relied on specific and articulable facts that, when considered with the rational inferences from those facts, constituted reasonable suspicion that a criminal act had occurred, the court did not err in denying Abbey's motion to suppress.

No. 12-0768. [2-477] IN RE N.T.J.

Appeal from the Iowa District Court for Scott County, Christine Dalton, District Associate Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Potterfield, J. (8 pages)

A mother appeals the termination of her parental rights, asserting the juvenile court erred in: (1) admitting certain evidence containing hearsay and (2) finding termination was proper. OPINION HOLDS: I. Admittance of evidence containing hearsay was proper in termination proceeding. II. Clear and convincing evidence exists for termination and termination is in the best interests of the child.

No. 12-0520. [2-524] IN RE Z.D.

Appeal from the Iowa District Court for Black Hawk County, Stephen C. Clarke, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Potterfield, J. (4 pages)

A father appeals the termination of his parental rights to his three children. The mother's appeal from the termination of parental rights was dismissed as untimely. He contends the court erred in finding the children could not be returned to the mother and in denying his request to defer permanency. OPINION HOLDS: In failing to challenge the statutory ground on which his rights were terminated, the father acknowledges he has maintained no significant and meaningful contact with the children during his incarceration. See Iowa Code § 232.116(1)(e). Any relationship these children had with their father has been diminished by the time and distance of his incarceration, and weighs against deferral of permanency. Because there is clear and convincing evidence establishing that grounds for termination of the father's parental rights exist, termination is in the children's best interests, and no pertinent factor weighs against termination, we affirm.

No. 11-0513. [2-168] MEMMER v. STATE

Appeal from the Iowa District Court for Johnson County, Nancy Baumgartner, Judge. AFFIRMED. Heard by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Doyle, J. (6 pages)

Jonathan Memmer appeals from the denial of his application for postconviction relief (PCR), asserting his trial counsel was ineffective. He also newly asserts his sentences were illegal. OPINION HOLDS: Upon our de novo review, we conclude the PCR court thoroughly discussed Memmer's ineffective-assistance-of-counsel claims and correctly applied the law. Additionally, we find his newly asserted illegal-sentences claim is simply his prior ineffective-assistance-of-counsel claim recast, and we have already affirmed the PCR's ruling on that issue. Nevertheless, even if his claim was truly an illegal-sentence claim, State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006), and Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), do not support his illegal-sentences claim. We accordingly affirm the judgment of the PCR court denying and dismissing Memmer's PCR application.

No. 11-1493. [2-275] ROBERT F. KAZIMOUR CO. v. WEST SIDE UNLIMITED CORP.

Appeal from the Iowa District Court for Linn County, Fae Hoover-Grinde, Judge. AFFIRMED. Heard by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Doyle, J. (13 pages)

This is an appeal from the confirmation of an arbitration award. The plaintiffs, Robert Kazimour, his wife (Janis), their two daughters (Korlin and Kimberly), and the Kazimours' various businesses, claim the damages awarded by the arbitrators in their suit against Donald Vogt and his companies, West Side Unlimited Corporation, West Side Transport, Inc., and West Side Brokerage, Inc., were inadequate. OPINION HOLDS: We agree with the district court that the arbitrators did not exceed their powers in making the award, which was also supported by substantial evidence. We accordingly affirm the district court's confirmation of the arbitration award.

No. 11-0991. [2-388] NIE v. SARTORI MEMORIAL HOSPITAL, INC.

Certiorari to the Iowa District Court for Black Hawk County, Stephen C. Clarke, Judge. WRIT ANNULLED. Heard by Vogel, P.J., and Vaitheswaran and Doyle, JJ. Opinion by Doyle, J. (12 pages)

Judith O'Donohoe filed a notice of appeal from a district court order imposing sanctions against her for violating Iowa Rule of Civil Procedure 1.413(1) by requesting sanctions against opposing counsel. OPINION HOLDS: We treat O'Donohoe's challenge to the sanctions as a petition for writ of certiorari. After considering all of her arguments, whether specifically addressed or not, we find no abuse of discretion in the district court's decision to sanction O'Donohoe for her misuse of rule 1.413. We accordingly annul the writ of certiorari.

 

No. 11-1250. [2-463] MIDLAND FUNDING, L.L.C. v. BUHR

Appeal from the Iowa District Court for Howard County, John Bauercamper, Judge. REVERSED AND REMANDED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Doyle, J. (4 pages)

Melroy Buhr appeals from an order dismissing his counterclaim against Midland Funding, L.L.C. OPINION HOLDS: Under the circumstances presented here, we conclude the district court erred when it dismissed Buhr's counterclaim upon the filing of Midland's dismissal without prejudice.

No. 12-0526. [2-475] IN RE E.C.

Appeal from the Iowa District Court for Black Hawk County, Steven C. Clarke, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Doyle, J. (7 pages)

A mother appeals from the order terminating her parental rights. OPINION HOLDS: Upon our de novo review, we find the State has met its burden as to the ground set forth in Iowa Code section 232.116(1)(h) (2011), and we find no error in the juvenile court's refusal to grant the mother additional time for reunification. Additionally, we agree with the juvenile court that termination of the mother's parental rights is in the child's best interests, and we find no abuse of discretion in the court's declination to invoke section 232.116(3). We accordingly affirm the juvenile court's order terminating the mother's parental rights.

No. 12-0769. [2-478] IN RE Y.C.F.

Appeal from the Iowa District Court for Pottawattamie County, Gary K. Anderson, District Associate Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Doyle, J. (7 pages)

A father appeals from the order terminating his parental rights to his twin children. He claims (1) the State failed to prove the grounds for termination by clear and convincing evidence and (2) termination was not in the children's best interests. OPINION HOLDS: Upon our de novo review of the record, we find the father's immigration status and inability to speak English were only complicating factors in the decision to terminate his parental rights. More important was his demonstrated inability to safely parent the children. We affirm the judgment of the juvenile court.

No. 11-1400. [2-272] RC & CA DOGHOUSE, L.L.C. v. RICCADONNA

Appeal from the Iowa District Court for Polk County, Karen Romano, Judge. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Heard by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Danilson, J. (22 pages)

Defendants David Riccadonna and Doghouse Bar and Lounge, Inc. appeal from entry of default judgment and the award of compensatory and punitive damages entered in favor of plaintiffs, RC & CA Doghouse, L.L.C. and Cory Steiner, on their claims of breach of contract, intentional interference with prospective business advantage, intentional interference with contract, defamation, conversion, and trespass. Riccadonna also appeals from a directed verdict dismissing his counterclaims. OPINION HOLDS: Riccadonna sold a bar or lounge to the plaintiffs, reclaimed the lounge without justification, then after this action was filed, failed to comply with discovery or timely appear for the jury trial. We affirm the dismissal of his counterclaims and the award of compensatory damages, but determine the punitive damages were excessive. We reverse in part and remand to effectuate a remittitur or, if not accepted, a new trial on punitive damages.

No. 11-0785. [2-329] SHERIDAN v. STATE

Appeal from the Iowa District Court for Woodbury County, Jeffrey A. Neary, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Danilson, J. (8 pages)

Ferlin Sheridan appeals the district court dismissal of his application for postconviction relief. Sheridan alleges his trial counsel rendered ineffective assistance by failing to inform him of a plea offer. He also claims his postconviction counsel rendered ineffective assistance by failing to develop the record regarding what advice trial counsel gave concerning the State's plea offer. OPINION HOLDS: We conclude Sheridan was informed of the only plea offer tendered, and even if trial counsel or postconviction relief counsel were ineffective, no prejudice resulted, as Sheridan has not suggested or demonstrated that he would have ever accepted the plea offer tendered. We affirm.

 

No. 11-1737. [2-404] STATE v. KNOWLES

Appeal from the Iowa District Court for Webster County, Kurt L. Wilke, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Danilson, J. (6 pages)

Duane Knowles appeals the sentence imposed after his guilty plea. At the time of his sentencing hearing for the conviction before the court, Knowles was already incarcerated on a different charge. He alleges the sentencing court failed to provide a reason for imposing a sentence to run consecutively to the sentence he was already serving and requests remand for resentencing. OPINION HOLDS: Upon our review, we conclude the district court's overall sentencing plan sufficiently expresses the court's reasons for imposing a consecutive sentence. We affirm.

No. 12-0710. [2-453] IN RE G.M.

Appeal from the Iowa District Court for Polk County, Constance Cohen, Associate Juvenile Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Danilson, J. (8 pages)

A mother appeals the termination of her parental rights to her son, G.M., born in November 2011. The mother contends the State failed to prove the grounds for termination by clear and convincing evidence and termination is not in the best interests of the child. OPINION HOLDS: Upon our de novo review, we conclude the mother, who has had another child adjudicated a child in need of assistance (CINA) and her rights terminated, has been unable to develop and retain parenting skills to safeguard G.M. The mother also continues to show poor judgment in connection with paramours placing the child at risk. During these proceedings, the mother was offered and received services to correct the circumstances that led to G.M.'s adjudication, and the circumstances continue to exist in spite of the services received. We affirm.

No. 10-1515. [2-222] LOUVIERE v. STATE

Appeal from the Iowa District Court for Black Hawk County, Richard D. Stochl, Judge. AFFIRMED. Considered by Eisenhauer, C.J., Potterfield, J., and Huitink, S.J. Opinion by Huitink, S.J. Bower, J., takes no part. (10 pages)

Mark Louviere was charged with Count I, conspiracy to possess a controlled substance with intent to deliver involving more than five kilograms of methamphetamine; Count II, conspiracy to possess a controlled substance with intent to deliver involving more than five grams of methamphetamine; and Count III, failure to affix a drug tax stamp. The State alleged that both Counts I and II occurred within 1000 feet of a public park and while in the immediate possession or control of a firearm. Louviere pleaded guilty to the offenses as charged. Pursuant to a plea agreement, on Count I he was sentenced to one hundred years in prison, on Count II he was sentenced to fifty years in prison, and on Count III he was sentenced to five years in prison, with the sentences running concurrently. Louviere filed an application for postconviction relief, which was denied by the district court. He now appeals. OPINION HOLDS: I. Louviere contends he received an illegal sentence on Counts I and II because there is no factual basis in the record to support a firearm enhancement. We conclude there is sufficient evidence in the record to support the application of the firearm enhancement found in Iowa Code section 124.401(1)(e) (2007) in this case. There was evidence Louviere had been counting money from drug transactions in his home office, where a .22 caliber rifle was hanging from the wall. II. Louviere claims his guilty plea was involuntary because his defense counsel represented to him that his sentence would be reduced on reconsideration. The evidence does not support Louviere's claim that he was misled into believing that the mandatory minimum for his sentences would be further reduced on a motion for reconsideration of sentence. III. Louviere has made several claims of ineffective assistance of counsel. We conclude he has not sufficiently identified how counsel's performance was inadequate, or how other action by defense counsel would have changed the outcome of his case. We conclude Louviere has not established that he received ineffective assistance of counsel.

No. 11-1602. [2-402] STATE v. BLANCHETTE

Appeal from the Iowa District Court for Poweshiek County, Joel D. Yates and James Q. Blomgren, Judges. SENTENCE VACATED AND REMANDED FOR RESENTENCING. Considered by Vogel, P.J., Bower, J., and Huitink, S.J. Opinion by Huitink, S.J. (4 pages)

Jeremy Blanchette entered into a plea agreement in which he pleaded guilty to a charge of possession of marijuana with intent to deliver, a class "D" felony. At the sentencing hearing, the court asked defense counsel what the shortest term of probation could be if the sentence was suspended, and counsel replied it was three years. The court sentenced Blanchette to a term of imprisonment not to exceed five years, suspended the sentence, and placed him on probation for a period of three years. Blanchette now appeals his sentence. OPINION HOLDS: Under Iowa Code section 907.7(2) (2011), for a felony offense the minimum length of probation is two years. Blanchette contends the court could not properly exercise its discretion in determining the proper length of probation because the court had been misinformed as to the minimum length permitted by statute. Based on the evidence presented at the time of the sentencing hearing, we conclude Blanchette's sentence must be vacated and the case remanded for resentencing.

No. 12-0105. [2-451] IN RE MARRIAGE OF KNUDSON

Appeal from the Iowa District Court for Shelby County, Jams M. Richardson, Judge. AFFIRMED. Considered by Eisenhauer, C.J., Potterfield, J., and Huitink, S.J. Opinion by Huitink, S.J. (7 pages)

The district court entered a dissolution decree for Gaige and Heather Knudson on December 19, 2011. The court granted the parties joint legal custody of their three children, with Heather having physical care. To recognize Heather's share of the value of the 2011 crops, the court ordered Gaige to pay her $150,000. Gaige was also ordered to pay Heather a cash property settlement of $55,871.50. Gaige has appealed the physical care and property division provisions of the dissolution decree. OPINION HOLDS: I. We concur in the district court's decision placing the children in Heather's physical care, rather than in the joint physical care of the parties. Heather clearly has been the primary caretaker for the children throughout their lives. II. The district court properly considered the 2011 crops as a marital asset subject to division in the dissolution decree. We also conclude the evidence supports the court's valuation of the farm machinery at $185,267. Considering the property division as a whole, we conclude the court equitably divided the parties' assets and liabilities. III. We determine Gaige should pay $1000 toward Heather's appellate attorney fees.

No. 11-0872 . [2-136] DAVIS v. PAUL

Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge. AFFIRMED. Heard by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Tabor, J. (14 pages)

Nicolle Davis appeals following the jury verdict finding Dr. James F. Paul not negligent in cutting her spinal accessory nerve during surgery to remove a lymph node. Davis challenges the district court's denial of her motions for directed verdict, judgment notwithstanding the verdict, and for a new trial arguing: (1) the jury's verdict in favor of Dr. Paul was not supported by sufficient evidence and was contrary to the law; (2) the district abused its discretion by allowing the defendant to call two expert witnesses to give testimony regarding the standard of care; and (3) the district court erred when it instructed the jury that a physician or surgeon is not a guarantor of favorable results. OPINION HOLDS: We affirm for three reasons. I. The record contained sufficient evidence that Dr. Paul satisfied the standard of care to send the question of negligence to the jury. II. The testimony of Dr. Paul's two expert witnesses was not cumulative because each expert testified as to the standard of care in their separate medical specialties. III. Davis did not preserve error on the use of the word "guarantor" in Jury Instruction No. 17 because she did not object on that ground before the instruction went to the jury.

No. 11-0935. [1-1004] IN RE ESTATE OF HORD

Appeal from the Iowa District Court for Monona County, James D. Scott, Judge. REVERSED AND REMANDED. Heard by Danilson, P.J., Bower, J., and Miller, S.J. Opinion by Bower, J. Danilson, P.J., concurs; Miller, S.J., concurs specially. (12 pages)

The remainder beneficiaries of the Carl R. Hord Trust appeal from the district court ruling concluding they had conveyed their interests in the trust real estate to Lois Hord. They contend the spendthrift clause in Carl Hord's will prohibited any transfer or assignment of their individual shares prior to the distribution of property by the trustees. They further argue the transfers of their interests to Lois were invalid because they had contingent remainder rights in the trust property that could not be conveyed. Finally, they allege the after-acquired-title doctrine is inapplicable. OPINION HOLDS: Upon our review, we conclude the spendthrift clause in Carl Hord's will prohibited any transfer or assignment by the remainder beneficiaries of their right to future payment from the trust; therefore the transfers were invalid under Iowa Code section 633A.2302 (2009). Accordingly, we reverse the decision of the district court and remand with directions. SPECIAL CONCURRENCE ASSERTS: I concur in the result.

No. 11-1848. [2-280] COLLEGE CMTY. SCH. DIST. v. ORRIS

Appeal from the Iowa District Court for Johnson County, Nancy A. Baumgartner, Judge. DISTRICT COURT REVERSED; COMMISSIONER'S DECISION AFFIRMED. Heard by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Bower, J. (9 pages)

College Community School District and its workers' compensation insurance carrier, EMC Insurance Company, appeal from the judicial review order remanding claimant April Orris's claim for workers' compensation benefits to the workers' compensation commissioner. They contend the district court erred in determining that the agency improperly relied on anticipated future improvement in determining Orris suffered a thirty-percent permanent partial disability. OPINION HOLDS: Because there was sufficient evidence in the record regarding Orris's current physical condition to support the commissioner's findings, we reverse the district court and affirm the agency's decision.

No. 11-0552. [2-290] MIRANDA v. SAID

Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Heard by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Mullins, J. (23 pages)

Plaintiffs, Klever Miranda, Nancy Campoverde, and Cesar Miranda, appeal following a jury trial on their legal malpractice claim against defendants, Michael Said and Law Offices of Michael H. Said, P.C. (Said). Plaintiffs assert the district court erred in (1) refusing to submit their claim of mental suffering damages to the jury; (2) dismissing their claim for punitive damages; (3) refusing to submit to the jury their claim for lost-chance damages; (4) dismissing Cesar Miranda as a plaintiff; and (5) denying part of their motion for sanctions, costs, and attorney fees. OPINION HOLDS: We find the district court correctly granted Said's directed verdict motion with respect to the lost-chance damages and did not abuse its discretion in denying plaintiffs' requests for the assessment of costs and attorney fees. However, we find the district court did err in refusing to submit plaintiffs' claim of mental suffering and punitive damages to the jury. As a result of this finding, we also find the district court erred in dismissing Cesar Miranda as a plaintiff. We therefore affirm in part, reverse in part, and remand this case for a trial on the issues of mental distress and punitive damages only.

No. 11-0677. [2-327] STATE v. RYAN

Appeal from the Iowa District Court for Mahaska County, Randy S. DeGeest, District Associate Judge. AFFIRMED. Heard by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Bower, J. (8 pages)

Michael John Ryan appeals the judgment and sentence entered following his conviction of assault with intent to commit sexual abuse and prostitution. He contends the district court erred in denying his motion for judgment of acquittal because a fatal variance existed between the date of the act alleged in the trial information and the date of the act established in the evidence. He also contends the evidence is insufficient to establish his guilt. OPINION HOLDS: Because the trial information and minutes of testimony were sufficient to apprise Ryan of the crime charged, we find no fatal variance exists. Given Ryan's attempts to engage Adam in sex acts before grabbing his penis, we find sufficient evidence to support his conviction of assault with intent to commit sexual abuse. Sufficient evidence also supports his conviction for prostitution.

No. 11-0831. [2-331] LIBERTYVILLE SAVINGS BANK v. DANNY'S DIGGIN' N DOZIN' INC.

Appeal from the Iowa District Court for Davis County, Annette J. Scieszinski, Judge. AFFIRMED ON APPEAL AND REMANDED. Heard by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Bower, J. (15 pages)

Defendants Daniel and Jill McKee appeal the district court's declaratory ruling and issuance of a decree of foreclosure. The McKees make several arguments in regard to Libertyville Savings Bank's ability to foreclose on their farm mortgages. They further argue the district court erred in applying an auction proceeds check toward the debt of the McKee's corporation. OPINION HOLDS: Upon our review, we affirm the district court's ruling and decree.

No. 11-1098. [2-334] STATE v. CAREY

Appeal from the Iowa District Court for Warren County, Kevin A. Parker, District Associate Judge. AFFIRMED. Heard by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Mullins, J. (8 pages)

Defendant, Mark Todd Carey, appeals his conviction and sentence for operating while intoxicated, first offense, in violation of Iowa Code section 321J.2 (2011), asserting the district court erred in denying his motion to suppress his refusal to submit to chemical testing. He claims the implied consent advisory he was read failed to comply with the statutory requirements, and as a result, he claims he was denied substantive due process rights. OPINION HOLDS: While the statutes at issue do not use the actual term "fail," we acknowledge the advisory does not have to be conveyed in any particular language, and we believe the advisory given here accomplished the purpose of the statute by providing "a basis for evaluation and decision-making in regard to either submitting or not submitting to the test." We therefore affirm the district court's decision to deny Carey's motion to suppress.

No. 11-1497. [2-340] REGENWETHER v. CLINTON HUMANE SOCIETY

Appeal from the Iowa District Court for Clinton County, Mark J. Smith, Judge. AFFIRMED. Heard by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Mullins, J. (12 pages)

A discharged employee appeals the district court ruling denying her breach of an employment contract claim against her former employer. OPINION HOLDS: Substantial evidence supports the district court's conclusion that the employee was terminated "for cause." Therefore, we affirm the district court's dismissal of the employee's breach of contract claim.

No. 11-1746. [2-343] IN RE MARRIAGE OF WALTERS

Appeal from the Iowa District Court for Poweshiek County, Myron L. Gookin, Judge. AFFIRMED. Heard by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Tabor, J. (14 pages)

This appeal involves a custody modification order that splits the physical care of two sisters: fourteen-year-old M.W. and ten-year-old C.W. Their mother, Pamela Cason, challenges the transfer of C.W.'s physical care to her father, Chad Walters. Chad contests the court's decision to leave M.W. in her mother's physical care. OPINION HOLDS: Recognizing the agonizing issues involved in this case, as well as the district court's superior ability to assess credibility given its opportunity to observe the witnesses first-hand, we affirm the modification order.

No. 11-1791. [2-344] CALDWELL v. HOLIDAY LAKE OWNERS' ASS'N, INC.

Appeal from the Iowa District Court for Poweshiek County, James Q. Blomgren, Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Bower, J. (5 pages)

The plaintiffs appeal from the district court order dismissing their claim against Ricky Rizzio for damages arising from an accident that caused the death of Scott McCarthy. They contend the district court erred in finding they lacked good cause for failing to serve Rizzio within ninety days of filing the original notice. OPINION HOLDS: The plaintiffs failed to show good cause for failing to serve Rizzio. They failed to take action to follow up with the sheriff's office regarding service. Although they were informed service had not been completed two days after the ninety-day deadline passed, they failed to seek an extension of time for service until nearly one month later—after Rizzio's motion to dismiss was filed.

No. 10-1536. [2-397] STATE v. MEYERS

Appeal from the Iowa District Court for Lee County, Gary R. Noneman, District Associate Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Tabor, J. (8 pages)

Kevin Michael Meyers appeals his assault conviction, alleging the district court erred in allowing the jury to consider out-of-court statements made by his confederate in a bar fight. OPINION HOLDS: Because the court correctly overruled Meyers's hearsay objections and because he cannot prove he was prejudiced by admission of the statements, we affirm.

No. 11-2013. [2-406] STATE v. HARRINGTON

Appeal from the Iowa District Court for Black Hawk County, James D. Coil, District Associate Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Tabor, J. (12 pages)

Having entered a guilty plea admitting he knowingly possessed methamphetamine, Donald Lee Harrington now contests the district court's denial of both his attorney's motion to withdraw and his motion in arrest of judgment. He also contends his counsel was ineffective in advising him to plead guilty despite "serious deficiencies in the lab reports" and in failing to timely file a motion in arrest of judgment. OPINION HOLDS: The record shows that before he entered his guilty plea, Harrington received police reports and the state crime lab report—the documents which formed the basis for his motion in arrest of judgment. Although the written plea and the plea-taking court apprised him of the need to file a motion in arrest of judgment to contest his plea, he failed to do so within the forty-five day deadline. At the hearing on the motion in arrest of judgment, Harrington expressed dissatisfaction with his attorney, but did not prove counsel could not adequately represent him. Accordingly, the court had no cause to substitute counsel. In addition, Harrington is unable to show he was prejudiced by any failure of counsel to investigate chain-of-custody issues regarding the drugs seized during the stop.

 

No. 12-0524. [2-412] IN RE D.S.

Appeal from the Iowa District Court for Webster County, James A. McGlynn, Associate Juvenile Judge. AFFIRMED ON BOTH APPEALS. Considered by Potterfield, P.J., Mullins, J., and Miller, S.J. Opinion by Miller, S.J. (10 pages)

Dennis and Cliff separately appeal from a juvenile court order terminating their parental rights to D.S. and R.S. respectively. OPINION HOLDS: Upon our de novo review, we agree with and affirm the juvenile court's decisions (1) not to enter permanency orders continuing placement of the children for up to six additional months, and (2) that termination of parental rights is in the best interest of each child.

No. 12-0657. [2-416] IN THE INTEREST OF P.A.I.P.

Appeal from the Iowa District Court for Woodbury County, Brian L. Michaelson, Associate Juvenile Judge. AFFIRMED. Considered by Doyle, P.J., Danilson, J., and Miller, S.J. Opinion by Miller, S.J. (8 pages)

A mother appeals from a juvenile court order terminating her parental rights to two children. OPINION HOLDS: Upon our de novo review, we agree with and affirm the juvenile court's decisions that (1) the mother's consent to termination of her parental rights was voluntarily and intelligently given, and (2) termination of the mother's parental rights is in the best interest of the children.

No. 11-0960. [2-426] STATE v. COOPER

Appeal from the Iowa District Court for Polk County, William A. Price, District Associate Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Bower, J. (8 pages)

Bradley Cooper appeals his conviction of operating while intoxicated, second offense, in violation of Iowa Code section 321J.2 (2011). He contends the district court erred in denying his motion to suppress his breath test result. OPINION HOLDS: Upon our review, we conclude Cooper's statutory rights under Iowa Code section 804.20 were not violated. Accordingly, we affirm his conviction and sentence.

No. 11-1331. [2-433] STATE v. CAMP

Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge. SENTENCE VACATED AND CASE REMANDED FOR FURTHER PROCEEDINGS. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Tabor, J. (8 pages)

Wayne Lamont Camp Jr. challenges the factual basis for his guilty plea to felony eluding. He contends that neither the in-court colloquy nor the minutes of testimony establish that the peace officer who pursued him was driving a "marked official law enforcement vehicle." OPINION HOLDS: Because Camp's attorney allowed him to enter a guilty plea without a factual basis for that element, we vacate his sentence and remand for further proceedings.

No. 11-1464. [2-435] STATE v. BALLANGEE

Appeal from the Iowa District Court for Washington County, Crystal S. Cronk, District Associate Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Bower, J. (8 pages)

Kevin Ballangee appeals his conviction of operating while intoxicated, in violation of Iowa Code section 321J.2 (2011). He contends the district court erred in denying his motion to suppress. OPINION HOLDS: Upon our review, we conclude the facts and circumstances in this case gave rise to the stopping officer's reasonable suspicion that criminal activity had occurred or was occurring and therefore justified the investigatory stop. Accordingly, we affirm Ballangee's conviction and sentence for operating while intoxicated.

 

No. 11-1781. [2-441] VILLAFANA v. BLACKHAWK FOUNDRY

Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Tabor, J. (12 pages)

Benito Villafana challenges the conclusion of the workers' compensation commissioner that his carpal tunnel and neck injuries were not caused by his work as a scale operator at Blackhawk Foundry & Machine Company. He argues the agency findings are not supported by substantial evidence. OPINION HOLDS: The deputy commissioner found the views of the employer's medical expert to be more convincing than the opinion of the neurosurgeon who evaluated Villafana. The district court deferred to the agency's fact finding, as do we. Because the denial of benefits is supported by substantial evidence, we affirm.

No. 11-1854. [2-442] IN RE MARRIAGE OF MENNING

Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Mullins, J. (5 pages)

David Menning appeals the denial of his request for spousal support in the decree dissolving his marriage to Michelle Menning. OPINION HOLDS: The district court's determination based upon the statutory factors that spousal support is not appropriate in this case does not fail to do equity. Therefore, we affirm.

No. 12-0435. [2-452] RAWLINGS v. STATE FARM FIRE & CASUALTY CO.

Appeal from the Iowa District Court for Marshall County, Michael J. Moon, Judge. AFFIRMED. Considered by Vogel, P.J., Tabor, J., and Schechtman, S.J. Opinion by Schechtman, S.J. (6 pages)

On January 29, 2008, a fire destroyed a house and its contents, owned by Brian Rawlings, in rural Marshalltown. Rawlings was insured by a homeowner's policy, issued by State Farm Fire and Casualty Company. State Farm denied coverage, and Rawlings filed a petition to recover the insurance proceeds on January 28, 2009, the day prior to the expiration of the contractual limitation period. That action was later dismissed by Rawlings without prejudice. On August 25, 2011, the present action was filed alleging breach of contract and bad faith. The district court sustained State Farm's motion for summary judgment on the grounds that the action was filed after the limitation period had expired. Rawlings appealed. OPINION HOLDS: Upon viewing the evidence and material facts in the light most favorable to Rawlings, as well as granting him all reasonable inferences therefrom, we conclude Rawlings did not comply with the policy's limitation by timely initiating an action to enforce its terms. Nor was there any waiver of those terms by State Farm. The district court's award of summary judgment to State Farm is affirmed.

No. 11-1695. [2-467] IN RE MARRIAGE OF MOYER

Appeal from the Iowa District Court for Pottawattamie County, James M. Richardson, Judge. AFFIRMED AS MODIFIED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Tabor, J. (15 pages)

A young father and college student appeals the district court's decision to grant physical care of his son to his ex-wife based on her proximity to extended family members. In addition to the child custody arrangement, Dan Moyer challenges the visitation and support provisions of the decree dissolving his marriage to Ashley Moyer. In the event that we affirm the custody provisions, he requests additional visitation. Dan also disputes the court's imputing of income for support purposes when his sole income is from student loans. OPINION HOLDS: We agree with the district court that granting Ashley physical care is in the child's best interest. But we modify the visitation schedule to provide Dan additional contact with his son during school breaks. We also modify the decree to require travel expenses be shared during summer and school-break visitations. Finally, we find a substantial injustice would occur if Dan's child support obligation was calculated on his actual earnings. Because Dan is capable of working part-time, we affirm the portion of the decree that orders him to pay child support of $195.13 per month.

No. 11-1699. [2-468] HENRY v. IOWA DEP'T OF WORKFORCE DEVELOPMENT

Appeal from the Iowa District Court for Polk County, Donna L. Paulsen, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Mullins, J. (3 pages)

Appellants appeal from a district court ruling on judicial review affirming the Iowa Department of Workforce Development, Division of Labor Services assessment of a civil penalty for failing to pay minimum wage, failing to provide minimum wage statements, making improper wage deductions for room and board, and making improper wage deductions for "kind care." OPINION HOLDS: The district court's finding that the workers were the employees of the appellants is supported by substantial evidence. We affirm.

No. 12-0806. [2-482] IN RE K.R.

Appeal from the Iowa District Court for Story County, Victor G. Lathrop, Associate Juvenile Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Bower, J. (5 pages)

A mother appeals from the order terminating her parental rights to her child. She does not dispute the State proved the grounds for termination by clear and convincing evidence. Instead, she argues termination of her parental rights is detrimental to the child. OPINION HOLDS: Because the child is not so closely bonded to the mother that termination would be detrimental to the child, we affirm.

No. 11-0649. [2-489] IN RE MARRIAGE OF KELLEY

Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Mullins, J. (3 pages)

Collin Kelley appeals from the district court decree dissolving his marriage to Jodie Kelley. OPINION HOLDS: I. Collin has failed to show Jodie committed perjury. II. The alleged credit card debt was too speculative to be made a part of the dissolution decree. III. The district court properly denied awarding spousal support to Collin.

 

Steve Lombardi
Iowa personal injury, workers' compensation, motorcycle, quadriplegic, paraplegic, brain injury, death
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