SUMMARIES OF DECISIONS, IOWA COURT OF APPEALS - November 15, 2012

Posted on Nov 15, 2012

SUMMARIES OF DECISIONS, IOWA COURT OF APPEALS - November 15, 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Pursuant to Iowa Supreme Court Rule 6.14(5), an unpublished opinion of the Iowa Court of Appeals may be cited in a brief; however, unpublished opinions shall not constitute controlling legal authority.

____________________________________________________________________________

No. 11-0814. [2-887] STATE v. BELL

Appeal from the Iowa District Court for Scott County, Mary E. Howes, Judge. AFFIRMED. Considered by Potterfield, P.J., Tabor, J., and Mahan, S.J. Per Curiam. (5 pages)

Larry Bell was convicted of driving while barred as a habitual offender, in violation of Iowa Code sections 321.555 and 321.561 (2009). He represented himself with standby counsel. He appeals his conviction. OPINION HOLDS: I. Bell claims that under the Sixth Amendment he had the right to confront witnesses against him, and asserts his certified driving record should not have been admissible unless someone from the Iowa Department of Transportation testified at his criminal trial. Bell's driving record was non-testimonial and was admissible without the testimony of a live witness. The district court properly denied Bell's objections based on the Confrontation Clause. II. Bell asserts the district court should have ordered that he be evaluated for competency. There is no evidence in this case to show Bell was suffering from a mental disorder, did not understand the proceedings, or was not able to assist effectively in his defense. Bell has not shown the district court violated his due process rights by failing to suspend the proceedings and order a competency evaluation under section 812.3.

No. 11-0941. [2-460] BRANDES v STATE

Appeal from the Iowa District Court for Chickasaw County, Mark D. Cleve, Judge. AFFIRMED. Heard by Eisenhauer, C.J., and Vogel and Vaitheswaran, JJ. Opinion by Eisenhauer, C.J. Tabor, J., takes no part. (9 pages)

Rick Brandes appeals from the district court ruling and order denying his application for postconviction relief. He contends the court erred in finding he did not prove his trial attorneys were ineffective. He also contends his postconviction attorney was ineffective. OPINION HOLDS: Brandes failed to show his trial attorneys had a duty to request a competency examination or he would have been found incompetent under Iowa Code section 812.3 (2005) if his attorneys had requested a competency examination. Their tactical decision not to call two witnesses was reasonable. Brandes cannot establish he was prejudiced by his attorneys' decisions not to call the witnesses because their testimony would not have affected the outcome of the trial in light of the other, overwhelming evidence of his guilt. His trial attorneys were not ineffective. In the same way, the "failure" of Brandes's postconviction attorney to call these witnesses in an attempt to demonstrate the necessity of their testimony at trial is not ineffective assistance.

No. 12-0028. [2-580] IN RE ESTATE OF FRYE

Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge. REVERSED. Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ. Opinion by Eisenhauer, C.J. (5 pages)

The co-executors of Mervyn Frye's estate and trustees of the Mervyn Frye living trust appeal from the declaratory judgment of the district court. The court concluded the election of Mervyn's surviving spouse, Maria, to take against his will was valid and reached the real property the couple transferred by warranty deed into the trust. They contend the court erred in determining Maria had not relinquished her right to the property through the deed, which included language relinquishing "all rights of dower, homestead and distributive share in and to the real estate." OPINION HOLDS: The language in the warranty deed executed by the Fryes satisfies the express written relinquishment requirement of section 633.238(1)(d) (2007). The property conveyed to the trust by the warranty deed is not subject to the surviving spouse's elective share.

No. 11-0812. [2-593] STATE v. RHODES

Appeal from the Iowa District Court for Jefferson County, Michael R. Mullins, Joel D. Yates, Lucy J. Gamon, and Daniel P. Wilson, Judges. AFFIRMED. Heard by Eisenhauer, C.J., and Doyle and Tabor, JJ. Opinion by Eisenhauer, C.J. Mullins, J., takes no part. (16 pages)

Defendant appeals her conviction, after jury trial, of first-degree theft. OPINION HOLDS: The district court did not err in failing to suspend proceedings and conduct a competency hearing prior to trial. Under the specific factual circumstances of this case, we find no violation of defendant's right to counsel at the motion to dismiss hearing.

No. 12-0035. [2-642] OOLMAN v. ICON AG SOLUTIONS, L.L.C.

Appeal from the Iowa District Court for Sioux County, Jeffrey A. Neary, Judge. AFFIRMED AS MODIFIED. Heard by Eisenhauer, C.J., and Vogel and Vaitheswaran, JJ. Opinion by Eisenhauer, C.J. (19 pages)

Employer appeals from a jury verdict awarding damages for breach of an employment contract. OPINION HOLDS: Sufficient evidence supports the verdict. The court did not err in instructing the jury or in excluding deposition testimony. We strike the prejudgment interest awarded on the general verdict and affirm as modified.

No. 10-0319. [2-697] STATE v. BROTHERN

Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ. Opinion by Eisenhauer, C.J. (6 pages)

Anthony Brothern appeals from his conviction and sentence for domestic abuse assault, third offense, as an habitual offender. He contends his trial attorney was ineffective in not objecting to the amended trial information adding the habitual offender enhancement after the close of evidence at trial. OPINION HOLDS: Because the amendment was proper under Iowa Rule of Criminal Procedure 2.4(8) and did not violate his due process rights, an objection to the amendment was meritless and would have been overruled by the court. We will not find an attorney incompetent for failing to pursue a meritless issue. Brothern's trial attorney did not breach any essential duty.

No. 11-1346. [2-703] STATE v. DIETRICH

Appeal from the Iowa District Court for Cerro Gordo County, James Drew (mistrial), Chris Foy (suppression), and Rustin Davenport (trial), Judges. AFFIRMED. Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ. Opinion by Tabor, J. (13 pages)

Aaron Dietrich requests a new trial, alleging the district court committed five errors: (1) denying his motion to suppress statements to police, (2) overruling his motion for new trial based on the weight of the evidence, (3) misadvising the jurors on justification, (4) substituting an alternate juror, and (5) excluding evidence that two State's witnesses belonged to the Ku Klux Klan. OPINION HOLDS: Because we find no reversible error, we affirm Dietrich's convictions for willful injury causing serious injury, criminal mischief in the third degree, and criminal trespass.

No. 11-1947. [2-742] STATE v. GRIFFITH

Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ. Opinion by Eisenhauer, C.J. (4 pages)

Charles Griffith appeals from the judgment and sentence imposed following his guilty plea to possession of a controlled substance with intent to deliver, as a second or subsequent offender, and as an habitual offender. He contends the court abused its discretion in imposing a prison term instead of probation as recommended in the presentence investigation and in tripling the penalty without considering the predicate prior felony was ten years old. OPINION HOLDS: The court gave sufficient reasons for its exercise of discretion in imposing a prison sentence. Considering Griffith's nearly thirty-year criminal history, his lack of success on probation, and the escalation from using illegal drugs to selling illegal drugs, the court did not abuse its discretion in determining the goal of protecting the public was "above all else at this point." The court did not triple the sentence under Iowa Code section 124.411 (2011), but imposed the maximum sentence for an habitual offender under section 902.9(3). We find no abuse of discretion.

No. 12-0281. [2-777] IN RE MARRIAGE OF ANDERSON

Appeal from the Iowa District Court for Black Hawk County, Andrea Dryer, Judge. AFFIRMED. Considered by Vogel, P.J., and Danilson and Mullins, JJ. Opinion by Mullins, J. (7 pages)

Terri Anderson appeals the spousal support provision of the district court's decree of dissolution of marriage. She also requests appellate attorney fees. OPINION HOLDS: We find the spousal support award is equitable and affirm the district court's decision. Terri's request for appellate attorney fees is denied.

No. 11-1949. [2-836] STATE v. MCCULLOUGH

Appeal from the Iowa District Court for Humboldt County, Joel E. Swanson, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ. Opinion by Tabor, J. (11 pages)

A jury found David McCullough guilty of sexual abuse in the second degree for engaging in sex acts with his ten-year-old stepdaughter. McCullough appeals his conviction, asking for a new trial on two grounds. First, he claims the district court abused its discretion in granting the jury's request during deliberations to review a video recording of his interview with investigators. Second, he argues trial counsel was ineffective for failing to argue the verdict was against the weight of the evidence. OPINION HOLDS: Because the reference to "depositions" in Iowa Rule of Criminal Procedure 2.19(5)(e) does not encompass video recordings of unsworn statements, the district court did not abuse its discretion in granting the jury's request to watch the interview again during deliberations. On the question of ineffective assistance of counsel, we find no reasonable probability the district court would have granted a new trial had counsel raised a challenge to the weight of the evidence. Accordingly, we affirm.

No. 12-0631. [2-852] IN RE MARRIAGE OF WILLIAMS

Appeal from the Iowa District Court for Polk County, J.D. Stovall, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. Opinion by Bower, J. (6 pages

Matthew Williams appeals, and April Pearson-Williams cross-appeals, from the spousal support provision of the supplemental decree of dissolution of their marriage. OPINION HOLDS: Upon our review, we affirm the order of the district court.

No. 12-1601. [2-923] IN RE T.L.H., T.E.H., & J.A.H.

Appeal from the Iowa District Court for Sac County, James McGlynn, Associate Juvenile Judge. AFFIRMED ON BOTH APPEALS. Considered by Eisenhauer, C.J., and Vogel and Vaitheswaran, JJ. Opinion by Eisenhauer, C.J. (6 pages)

A mother and father appeal separately from the order terminating their parental rights to three children. They contend the court should have entered a permanency order transferring guardianship and custody to the paternal grandparents instead of terminating their parental rights. OPINION HOLDS: A guardianship would not provide the children needed permanency, security, and safety because the parents could constantly threaten to seek to end the guardianship if the grandparents did not act as demanded by the parents. Terminating the parental rights of both parents to free these children for adoption by their paternal grandparents will provide them with a safe, stable, secure home while allowing them to have a continuing relationship with their parents.

No. 12-1735. [2-980] IN RE T.W.D.-P.

Appeal from the Iowa District Court for Carroll County, James A. McGlynn, Associate Juvenile Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Vogel and Vaitheswaran, JJ. Opinion by Eisenhauer, C.J. (4 pages)

A father appeals from the order terminating his parental rights to one of his children, contending the court abused its discretion in denying his attorney's request for a continuance when the father did not appear at the termination hearing. OPINION HOLDS: The father has no relationship with the child and is not seeking reunification. He merely wants the child to know him. We find no abuse of discretion in the court's denial of the motion to continue.

No. 12-0147. [2-931] STATE v. HENNING

Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge. AFFIRMED. Considered by Doyle, P.J., Bower, J., and Mahan, S.J. Opinion by Mahan, S.J. Tabor, J. takes no part. (5 pages)

Alyssa Henning gave birth to a child in January 2011. On April 7, 2011, Henning stated she found the child limp and unresponsive. Dr. Resmiye Oral opined the child's injuries were caused by abusive head trauma and physical abuse, and there was more than one episode. After a jury trial, Henning was convicted of child endangerment resulting in serious injury. Henning appeals, claiming her conviction is not supported by sufficient evidence. OPINION HOLDS: Henning contends she did not knowingly act in a manner to create a substantial risk to the child's health or safety and she did not intentionally commit an act resulting in physical injury to the child. The nature of the injuries, the number of injuries, and the fact they did not all occur on one occasion supports a finding the injuries were not caused by mistake or accident. We determine Henning's conviction was supported by substantial evidence. We affirm her conviction for child endangerment resulting in serious injury.

No. 12-1611. [2-951] IN RE S.P. & J.P.

Appeal from the Iowa District Court for Scott County, Christine Dalton, District Associate Judge. AFFIRMED. Considered by Danilson, P.J., Tabor, J., and Mahan, S.J. Opinion by Mahan, S.J. (5 pages)

The parents of two children born in 2009 and 2010 appeal separately from the order terminating their parental rights. The parents have a history of domestic violence, and the father physically abused the younger child. Despite a no-contact order, the mother permitted him to have contact with the children and they were subsequently removed from her care. The mother participated in services, but continued to have contact with the father. The father is presently in prison for child endangerment resulting in bodily injury. OPINION HOLDS: I. The mother contends there is insufficient evidence in the record to support termination of her parental rights. The children could not be returned to her care because she has continued her relationship with the father and she has not shown she would make the children's safety a priority. II. The father claims the State did not present sufficient evidence to support termination of his parental rights. He is in prison for physically abusing and injuring the younger child. We conclude there is sufficient evidence to warrant termination of his parental rights. The father also asserts termination is not in the children's best interests. Looking at the parents' past performance, we conclude termination of the father's parental rights, and those of the mother, is in the best interests of the children. We affirm the decision of the juvenile court.

No. 11-1784. [2-393] RIVERA v. WOODWARD

Appeal from the Iowa District Court for Dallas County, Gregory A. Hulse, Judge. REVERSED AND REMANDED. Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ. Opinion by Doyle, J. Dissent by Eisenhauer, C.J. (24 pages)

 

Terri Rivera appeals from an order granting summary judgment and dismissing her action for wrongful discharge from employment in violation of public policy. OPINION HOLDS: We conclude Rivera's filing of her first lawsuit within two years of accrual of her claim constituted the filing of a "claim" within the context of Iowa Code section 669.13(2) (2007). Additionally, we conclude Rivera met the remaining requirements of that section and is entitled to application of its savings clause. Finally, we find Rivera generated a fact question concerning her claim that she engaged in a protected activity. We therefore reverse the district court's grant of summary judgment and remand for reinstatement of Rivera's suit and further proceedings. DISSENT ASSERTS: I dissent. The majority finds the savings clause in section 669.13(2) applies because, even though the court ruling in her September 2006 lawsuit found "that plaintiff's claim of wrongful discharge from employment is a tort claim and is subject to the Iowa Tort Claims Act (Chapter 669)," the majority concludes her action was "made or filed under any other law of this state" and not under chapter 669. However, because Rivera's 2008 petition alleged the tort of wrongful discharge in violation of public policy, which falls under Iowa Code chapter 669, it was not "made or filed under any other law of this state." Section 669.13(2) is not applicable to the facts of this case. Section 669.13(1) bars Rivera's suit. I would affirm the district court.

No. 12-0046. [2-866] STATE v. TOLBERT

Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ. Opinion by Doyle, J. (12 pages)

Jerry Tolbert appeals the judgment and sentence entered following his conviction for first-degree robbery, contending his trial counsel was ineffective. OPINION HOLDS: Upon our review, we conclude a more elaborate motion to acquit was not probable to succeed because the evidence presented at trial was sufficient to support both theories of robbery in the first degree. Additionally, we conclude that even if Tolbert's videotaped interview had been suppressed and not played for the jury, there is not a reasonable probability that the result of the trial would have been different. Because Tolbert cannot establish he suffered prejudice on either claim, his ineffective-assistance-of-counsel claims fail. Accordingly, we affirm his judgment and sentence.

No. 12-0571. [2-874] STATE v. HALVERSON

Appeal from the Iowa District Court for Des Moines County, Mark E. Kruse, District Associate Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ. Opinion by Doyle, J. (7 pages)

Curtis Halverson contends the district court failed to make a finding that his written pleas of guilty were made voluntarily and intelligently and had a factual basis. OPINION HOLDS: Opting to address the merits of Halverson's appellate claims, we find the district court did not abuse its discretion in denying Halverson's motion in arrest of judgment because (1) we find the record provides sufficient factual bases for Halverson's pleas; (2) the district court did make a finding that Halverson fully understood his rights and the consequences of his pleas at the time he made his written pleas and therefore complied with Iowa Rule of Criminal Procedure 2.8(2)(b); and (3) the facts do not demonstrate that Halverson did not fully understand his rights and the consequences of his pleas. Accordingly, we affirm Halverson's judgments and sentences.

No. 12-0280. [2-902] IN RE MARRIAGE OF GEISINGER

Appeal from the Iowa District Court for Clay County, David A. Lester, Judge. AFFIRMED. Considered by Potterfield, P.J., and Danilson and Tabor, JJ. Opinion by Potterfield, P.J. (5 pages)

Dawn Geisinger (n/k/a Dawn Huntoon) appeals from the district court's denial of her request for an order requiring a postsecondary educational subsidy for the party's daughter, asserting the district court improperly classified a private student loan requiring her signature as a financial resource of the child. OPINION HOLDS: The district court properly classified the co-signed private loan as a financial resource of the child.

No. 12-0240. [2-722] MERIVIC v. GUTIERREZ

Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. Opinion by Vaitheswaran, P.J. (9 pages)

An employer and its insurer appeal a workers' compensation ruling finding an employee permanently and totally disabled. OPINION HOLDS: Because the commissioner's finding of 100% loss of earning capacity is supported by substantial evidence and its application of law to fact is not irrational, illogical, or wholly unjustifiable, we affirm the award of permanent total disability benefits.

No. 12-0002. [2-802] IN RE ESTATE OF BURGER

Appeal from the Iowa District Court for Dallas County, Darrell J. Goodhue, Judge. AFFIRMED. Heard by Eisenhauer, C.J., and Vaitheswaran and Doyle, JJ. Opinion by Vaitheswaran, J. (13 pages)

A husband and wife owned a large swath of farmland which, following their deaths, became the subject of litigation among their four children. The primary issue on appeal is whether two siblings were authorized to join in a third sibling's timely objections to a final report that favored the fourth sibling and thereby benefit from a proposed distribution of certain trust assets. OPINION HOLDS: We affirm the district court's order granting the objections to the executor's final report and ordering the distribution of the additional trust assets to the two non-objecting siblings, as well as the objecting sibling. We deny the request for appellate attorney fees.

No. 11-2000. [2-838] STATE v. STEEN

Appeal from the Iowa District Court for Davis County, Daniel P. Wilson, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. Opinion by Vaitheswaran, P.J. (5 pages

A defendant asserts that the district court erred in ruling on a motion in limine, allowing the State to cross-examine him based on statements that he allegedly made to an unavailable witness. OPINION HOLDS: Since the defendant elected not to testify at trial and confront the challenged evidence, he did not preserve error on this issue.

No. 12-0675. [2-853] STATE v. GRIMES

Appeal from the Iowa District Court for Jefferson County, Daniel P. Wilson, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. Opinion by Vaitheswaran, P.J. (7 pages)

Donovan Grimes appeals his judgment and sentence for possession of a firearm by a person convicted of domestic violence in violation of Iowa Code section 724.26(2) (2011). He asserts the statute violates (1) "substantive due process" and (2) the Ex Post Facto Clauses of the federal and state constitutions. OPINION HOLDS: We agree with the district court that section 726.24(2) as applied to Grimes did not interfere with his Second Amendment right to bear arms and, accordingly, did not violate his substantive due process rights. We further conclude that because Grimes was found in possession of a firearm after the effective date of the statute, there is no ex post facto violation under either the federal or state constitutions. His judgment and sentence for possession of a firearm by a person convicted of domestic violence is affirmed.

No. 12-1300. [2-878] IN RE K.M.H. AND E.R.M.

Appeal from the Iowa District Court for Polk County, Carol S. Egly, District Associate Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. Opinion by Vaitheswaran, P.J. (5 pages)

A great-grandmother contends the juvenile court (1) erred in denying her contact with her great-grandchildren after their mother's parental rights were terminated, (2) failed to consider her as an option for adoption, and (3) failed to follow "established protocol and procedures for choosing one adoptive placement over the other." OPINION HOLDS: The great-grandmother did not take steps to intervene following the children's removal from their mother, so she did not have any basis to challenge the department's action in curtailing her visits with her great-grandchildren. The department acted in the children's best interests by opting to leave the children with their foster parent rather than transferring custody to the great-grandmother. The great-grandmother has not identified any specific protocols or procedures that were not followed in choosing one adoptive placement over the other, so she cannot prevail on this argument.

No. 12-0788. [2-812] SOMMER v. HASSTEDT

Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer, Judge. REVERSED AND REMANDED. Considered by Vogel, P.J., and Danilson and Mullins, JJ. Opinion by Vogel, P.J. (5 pages)

Roger Hasstedt appeals the district court's ruling granting summary judgment in favor of Patricia Sommer. Hasstedt asserts the court erred in finding he failed to produce evidence showing there is a genuine issue of material fact. OPINION HOLDS: We find Hasstedt has set forth material facts which are in dispute, mainly the issue of ownership of R & M Builders. Granting summary judgment on this record was in error. We therefore reverse and remand for further proceedings.

No. 12-1739. [2-981] IN RE I.K. AND V.K.

Appeal from the Iowa District Court for Scott County, Cheryl Traum, District Associate Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Vogel and Vaitheswaran, JJ. Opinion by Vogel, J. (3 pages)

A mother appeals an order placing her children in the custody of the Department of Human Services. OPINION HOLDS: There is substantial evidence that removal was necessary to avoid imminent risk to the life or health of the children, even without considering the objected to evidence.

No. 10-0613. [2-485] MILTON v. STATE

Appeal from the Iowa District Court for Clinton County, David H. Sivright Jr., Judge. AFFIRMED. Heard by Vaitheswaran, P.J., Bower, J., and Huitink, S.J. Opinion by Bower, J. Tabor, J., takes no part. (11 pages)

David Milton Jr. appeals from the district court's denial of his application for postconviction relief. He contends his conviction for sexual abuse in the third degree should be reversed because his trial counsel was ineffective in two ways: (1) in failing to inform him of a plea offer by the State and (2) in failing to withdraw from representation based on an undisclosed conflict of interest. He seeks a remand to allow him to enter a guilty plea in accordance with the proffered plea agreement. In the alternative, he asks for a new trial. OPINION HOLDS: Because we find Milton has failed to prove counsel breached an essential duty, we affirm the district court order denying his application for postconviction relief.

No. 11-2102. [2-577] WOODWARD v. MONONA CNTY. BD. OF SUPERVISORS

Appeal from the Iowa District Court for Monona County, John D. Ackerman, Judge. REVERSED AND REMANDED. Heard by Doyle, P.J., and Mullins and Bower, JJ. Opinion by Mullins, J. (11 pages)

The Monona County Board of Supervisors (the County) appeals the district court's decision sustaining a writ of certiorari in favor of Donald Woodward and Virginia Johnson, invalidating a rezoning ordinance passed by the County. The County now appeals, contending the district court exceeded its authority by improperly substituting its judgment for the County's judgment regarding the reasonableness of the rezoning decision. OPINION HOLDS: As substantial support exists for the County's decision, we find the district court erred in sustaining the writ filed by Woodward and Johnson. We reverse the district court's decision and remand for entry of an order annulling the writ.

No. 11-2083. [2-718] STATE v HOPKINS

Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge. AFFIRMED IN PART AND REVERSED IN PART. Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. Opinion by Bower, J. (8 pages)

Shaunta Hopkins appeals from the judgment and sentence entered following her convictions on two counts of conspiracy to deliver a controlled substance, possession of a controlled substance with intent to deliver, possession of a simulated controlled substance with intent to deliver, possession of a controlled substance, and failure to possess a tax stamp. She contends there is insufficient evidence to find her guilty of both conspiracy charges. She also contends the district court erred in failing to merge her conspiracy to deliver a controlled substance conviction with her possession of a controlled substance conviction. OPINION HOLDS: The evidence is sufficient to support Hopkins's conviction for conspiracy to deliver crack cocaine. However, we find there is insufficient evidence to support a conviction for conspiracy to deliver a simulated controlled substance. Because the convictions for possession of crack cocaine and conspiracy to deliver crack cocaine stem from two separate acts, merger is not required. We reverse Hopkins's conviction for conspiracy to deliver a simulated controlled substance and affirm on all other grounds.

No. 12-0246. [2-748] JEAN v. HY-VEE, INC.

Appeal from the Iowa District Court for Linn County, Sean W. McPartland (first summary judgment ruling), William L. Thomas (ruling on motion to amend petition), and Robert E. Sosalla (second summary judgment ruling), Judges. AFFIRMED IN PART, REVERSED IN PART, AND EMANDED FOR FURTHER PROCEEDINGS. Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ. Opinion by Tabor, J. (17 pages)

A customer struck by a bicycle ridden by an employee of the grocery store she was leaving appeals from two district court orders granting summary judgment in favor of Hy-Vee, Inc. That customer, Laura Jean, contends her claims of respondeat superior and premises liability present genuine issues of material fact. She also challenges the denial of her motion for leave to amend her petition to include a claim of negligent supervision. OPINION HOLDS: First, because undisputed evidence shows the cyclist was not acting within the scope of his employment at the time Jean was injured, we affirm the district court's grant of summary judgment on the respondeat superior theory. Second, because a reasonable fact finder could conclude HyVee should have discovered a dangerous condition that posed an unreasonable risk to customers leaving its store and failed to protect the customers from that risk, summary judgment was not appropriate on Jean's claim concerning HyVee's control of its premises. Third, because the district court blurred the distinction between Jean's claims of respondeat superior and negligent supervision, we find an abuse of discretion in its denial of her motion to amend the petition. Accordingly, we reverse the grant of summary judgment on the premises liability claim and reverse the denial of leave to amend. We remand the case so Jean may pursue her premises liability and respondeat superior claims.

No. 12-0262. [2-776] IN RE ESTATE OF KRIER

Appeal from the Iowa District Court for Keokuk County, Myron Gookin, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. Opinion by Bower, J. (6 pages)

Samuel Krier appeals from the district court order overruling and denying his petition for probate of will and appointment of executor. He contends the district court erred in finding Jeffrey Alan Krier's will was not properly witnessed because, although it contained the stamp of the notary public, it lacked her signature. OPINION HOLDS: Because we find a notarial stamp does not qualify as a signature as required by Iowa law, we affirm the district court.

No. 12-0382. [2-781] IN RE ESTATE OF FOSTER

Appeal from the Iowa District Court for Mitchell County, John Bauercamper, Judge. AFFIRMED. Heard by Potterfield, P.J., and Danilson and Tabor, JJ. Opinion by Tabor, J. Danilson, J. concurs; Potterfield, P.J., dissents. (16 pages)

We are asked to decide the enforceability of a family settlement agreement. Gary Foster and his three brothers inherited 400 acres of Mitchell County farmland from their parents. All four brothers signed an agreement detailing how the land would be divided and stating that their spouses "relinquish all rights of dower, homestead and distributive share." Gary now argues his wife's refusal to convey her interest renders the agreement unenforceable. He also contends the agreement is not binding based on a survey line not contemplated at the time of the agreement. OPINION HOLDS: Because we find the settlement agreement was not conditioned on either the spouses' signatures on subsequent conveyances or the location of the guy wire anchors for a cell tower on Gary's property, we affirm. DISSENT ASSERTS: The requirement that the spouses execute all subsequent conveyance documents constituted a condition to enforcement of the family settlement agreement. As this condition was not fulfilled, specific performance should be unavailable in this case.

No. 12-0439. [2-784] US BANK v. VAHLE

Appeal from the Iowa District Court for Des Moines County, Michael J. Schilling, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ. Opinion by Tabor, J. (12 pages)

A construction company that acquired real estate from homeowners in default on their mortgage moved to intervene in a foreclosure action after the judgment creditor filed a recision of the foreclosure. The district court denied intervention because the action had been dismissed. The company appeals, arguing the creditor's attempt to dismiss the foreclosure without prejudice under Iowa Code section 654.17 (2011) was ineffectual because the recision was barred by section 615.1—a special two-year statute of limitations governing the execution of foreclosure judgments. OPINION HOLDS: As a general rule, where a case is concluded, intervention is not permissible. See Mata v. Clarion Farmers Elevator Co-op, 380 N.W.2d 425, 427 (Iowa 1986). The district court correctly found no exception applied to allow intervention in this previously dismissed foreclosure action.

No. 09-1231. [2-820] STATE v. MILLER

Appeal from the Iowa District Court for Linn County, Kristin L. Hibbs (Watson hearing) and Robert E. Sosalla (trial), Judges. REVERSED AND REMANDED. Heard by Danilson, P.J., and Tabor and Bower, JJ. Opinion by Tabor, J. Bower, J., concurs; Danilson, P.J., concurs specially. (19 pages)

Miller appeals his conviction for felony involuntary manslaughter and child endangerment resulting in death, challenging the district court's denial of his mistrial motions, counsel's acquiescence in the substitution of an alternate juror, the proof of his specific intent to commit serious injury, and counsel's failure to object to the jury instruction on involuntary manslaughter and expert testimony on the profile of child abusers. He also alleges counsel labored under a conflict of interest. OPINION HOLDS: I. Because the court allowed a juror to begin deliberations and then separate from the rest of the jury without any certainty as to when deliberations would resume, we believe the defense motions for mistrial should have been granted. II. We do not believe Miller waived appellate review of the mistrial rulings by subsequently agreeing to the court's proposal to substitute an alternate juror rather than waiting for the separated juror's return the following week. SPECIAL CONCURRENCE ASSERTS: I concur specially to address the State's argument that Miller suffered no prejudice. The State urges us to conclude that prejudice must be shown before granting a new trial. I join in the majority's refusal to wade into such murky waters.

No. 12-0189. [2-843] MIDWEST MEDIA GROUP, INC. v. FUSION ENTERTAINMENT, INC.

Appeal from the Iowa District Court for Scott County, John D. Telleen, Judge. AFFIRMED. Heard by Doyle, P.J., and Mullins and Bower, JJ. Opinion by Bower, J. (12 pages)

The defendants appeal from the judgments entered in favor of the plaintiff on claims for civil conspiracy, unjust enrichment, and conversion. They contend the district court erred as a matter of law in determining the parties' lease agreements were not disguised sales contracts creating security interests. The defendants also contend the court erred in holding them liable for unjust enrichment when the plaintiff also recovered on both breach-of-contract claims. Finally, they contend the plaintiff cannot recover on its conversion claim because the parties' agreements were not true leases, and civil conspiracy is not actionable. OPINION HOLDS: I. Because the "economic realities" argument now advanced by the defendants on their claim the lease agreements were disguised sales contracts was not presented to and passed on by the district court, we will not consider it for the first time on appeal. II. Substantial evidence supports the unjust enrichment verdict. III. Substantial evidence supports the conversion verdict, which is not duplicative of the damages for breach of contract. IV. We find a conspiracy existed regarding the conversion as it relates to Fusion, McAnally, and Lyle.

No. 12-0328. [2-846] BOOTH v. STATE PUBLIC DEFENDER

Appeal from the Iowa District Court for Polk County, Rachel E. Seymour, District Associate Judge. AFFIRMED. Considered by Vogel, P.J., and Danilson and Mullins, JJ. Opinion by Danilson, J. (6 pages)

Attorney Unes J. Booth appeals a district court order approving the public defender's reduction of his fee claim for representing a mother in CINA proceedings. The district court found that "the fees claimed were excessive and reductions made by the State Public Defender were appropriate." OPINION HOLDS: Because we conclude that the district court determination was supported by the evidence, we affirm.

No. 12-0271. [2-870] STATE v. BARNEY

Appeal from the Iowa District Court for Story County, Steven Van Marel, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. Opinion by Bower, J. (2 pages)

Diane Barney appeals from her sentence following the judgment entered on her charges of assault on a peace officer causing injury, making a false 911 communication, and disorderly conduct. Barney argues the district court abused its discretion in sentencing her to serve thirty days in jail and "not suspending a sentence of incarceration" after failing to consider "the mitigating factors" supporting a suspended sentence, including Barney's young age, four children, and that she was pregnant and employed. OPINION HOLDS: Upon our review, we find the district court properly considered and weighed multiple appropriate factors that provide for Barney's rehabilitation as well as the protection of the community. See Iowa Code § 901.5 (2011). After considering Barney's contentions we conclude she has not demonstrated an abuse of discretion by the district court. Accordingly, we affirm. See Iowa R. App. P. 6.1203(a).

No. 12-0573. [2-875] STATE v. MOORE

Appeal from the Iowa District Court for Scott County, Cheryl Traum, District Associate Judge. AFFIRMED. Considered by Vogel, P.J., and Danilson and Mullins, JJ. Opinion by Mullins, J. (3 pages)

Tommie Moore appeals following his guilty plea to two counts of driving while barred-habitual offender, contending (1) his trial counsel rendered ineffective assistance in failing to file a motion to suppress and (2) the court abused its discretion in sentencing him. OPINION HOLDS: Based on the current record on appeal, we are unable to determine whether counsel breached an essential duty in not filing a motion to suppress or whether Moore has been prejudiced by this alleged error. Therefore, we preserve Moore's ineffective-assistance-of-counsel claim for possible postconviction relief proceedings. The sentence imposed by the court was within the statutory limits and nothing in the record leads us to believe the court abused its discretion in sentencing Moore.

No. 12-1303. [2-883] IN RE A.K.

Appeal from the Iowa District Court for Howard County, Alan B. Allbee, Associate Juvenile Judge. AFFIRMED. Considered by Vogel, P.J., and Danilson and Mullins, JJ. Opinion by Mullins, J. Vogel, P.J., concurs; Danilson, J., dissents. (8 pages)

A mother appeals from a disposition order affirming her child to be in need of assistance and transferring custody to the father. She contends the State failed to present clear and convincing evidence of the grounds for adjudication arguing her occasional methamphetamine use is limited to the time the child is not in her care. OPINION HOLDS: We find by clear and convincing evidence that the mother is a member of the household in which the child resides and her ongoing drug use places the child at imminent risk of suffering adjudicatory harm. We affirm. DISSENT ASSERTS: There was no evidence that the mother was a chronic methamphetamine user, used methamphetamine in the family home, or failed to either provide adequate care of the child or exercise a reasonable degree of care in supervising the child. The child was primarily in the care of the child's maternal grandmother and there is no suggestion that the grandmother was not a proper caretaker. I would reverse.

No. 12-1403. [2-884] IN RE L.C.

Appeal from the Iowa District Court for Polk County, Carol S. Egly, District Associate Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. Opinion by Bower, J. (6 pages)

A father appeals the termination of his parental rights to his child. He contends the State failed to prove the grounds for termination and requests additional time to show he can safely parent the child. He also contends the juvenile court erred in failing to recuse itself. OPINION HOLDS: Because the father only challenges the sufficiency of the evidence supporting termination under one section, we affirm his termination under the other three sections found by the juvenile court. We find the father should not be granted an additional six months to prove himself a fit parent. Finally, the father has failed to show he was prejudiced by the juvenile court's failure to sua sponte recuse itself for an alleged conflict of interest.

No. 11-2080. [2-895] STATE v. SOUTHIDETH-WHITEN

Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge. AFFIRMED. Considered by Potterfield, P.J., and Danilson and Tabor, JJ. Opinion by Danilson, J. (6 pages)

A jury convicted Lha Southideth-Whiten (Whiten) of robbery in the first degree, felon in possession of a firearm, and two counts of delivery of a controlled substance. He appeals, contending the district court erred in overruling his motion for judgment of acquittal, he was denied his right to effective assistance of counsel, and the district court abused its discretion in sentencing. OPINION HOLDS: We conclude there was substantial evidence supporting the verdicts; Whiten was not denied the effective assistance of counsel; he was not subject to an abuse of discretion during sentencing.

No. 12-0067. [2-897] IN RE MARRIAGE OF FREUND

Appeal from the Iowa District Court for Scott County, Thomas G. Reidel, Judge. AFFIRMED. Considered by Doyle, P.J., and Mullins and Bower, JJ. Opinion by Mullins, J. (2 pages)

Jay Freund appeals the district court decree dissolving his sixteen-year marriage to Jennifer Freund, asserting the district court erred in considering inadmissible hearsay evidence and disregarding other credible testimony in making its determinations of custody and visitation, property distribution, and attorney fees. OPINION HOLDS: To the extent inadmissible hearsay was considered by the court, this evidence was cumulative to other evidence the court found reliable, and the admissible evidence supports the court's conclusions. We affirm the district court's decision without opinion pursuant to Iowa Rule of Appellate Procedure 6.1203(a) and (d).

No. 12-0559. [2-938] IN RE ESTATE OF PENA

Appeal from the Iowa District Court for Scott County, Thomas G. Reidel, Judge. AFFIRMED. Considered by Potterfield, P.J., and Danilson and Tabor, JJ. Opinion by Danilson, J. (2 pages)

Claimants in the Estate of Lyle Richard Pena appeal from the ruling of the probate court that they had failed to prove the decedent had generally and notoriously recognized them as his children. OPINION HOLDS: Upon our de novo review, we come to the same conclusion as did the probate court and we therefore affirm.

 No. 12-1609. [2-953] IN RE B.S.

Appeal from the Iowa District Court for Black Hawk County, Stephen C. Clarke, Judge. AFFIRMED ON BOTH APPEALS. Considered by Potterfield, P.J., and Danilson and Tabor, JJ. Opinion by Tabor, J. (9 pages)

 The parents of a one-year-old child challenge the juvenile court's termination of their parental rights, alleging the Department of Human Services did not make reasonable efforts toward reunification. Both parents also allege the juvenile court erred in finding clear and convincing evidence they lacked the ability or willingness to respond to services. The father also contests the court's denial of his motion to continue the termination hearing. OPINION HOLDS: The juvenile court acted within its discretion in denying the father's motion for a continuance. Our review of the record also brings us to the same realization reached by the juvenile court: these parents have been unable to establish a home for their son "as they have both continued to abuse substances and have placed immediate gratification of their own needs above the needs of their child." Accordingly, we affirm the termination of parental rights.

 No. 12-1301. [2-979] IN RE J.G.

Appeal from the Iowa District Court for Linn County, Susan Flaherty, Associate Juvenile Judge. AFFIRMED. Considered by Doyle, P.J., and Mullins and Bower, JJ. Opinion by Bower, J. (4 pages)

A mother appeals from the termination of her parental rights to her child. She contends the juvenile court abused its discretion in denying her motion for a continuance. OPINION HOLDS: Because the juvenile court acted reasonably in denying the request for a continuance, we affirm.

No. 12-1533. [2-984] IN RE A.S.

Appeal from the Iowa District Court for Black Hawk County, Daniel L. Block, Associate Juvenile Judge. AFFIRMED. Considered by Potterfield, P.J., and Danilson and Tabor, JJ. Opinion by Danilson, J. (2 pages)

 

This appeal arises from the juvenile court's ruling in a permanency review hearing, denying the mother's motion to dismiss juvenile court proceedings. The mother contends the district court guardianship serves the same purpose as the juvenile court's permanency order, rendering continued juvenile court supervision unnecessary. OPINION HOLDS: The juvenile court acted well within its statutorily-conferred discretion in retaining jurisdiction in this matter. We therefore affirm.

Read More About SUMMARIES OF DECISIONS, IOWA COURT OF APPEALS - November 15, 2012...

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