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Pursuant to Iowa Supreme Court Rule 6.14(5), an unpublished opinion of the Iowa Court of Appeals may be cited in a brief; however, unpublished opinions shall not constitute controlling legal authority.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

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