SUMMARIES OF DECISIONS, IOWA COURT OF APPEALS October 31, 2012 a

Posted on Nov 12, 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Pursuant to Iowa Supreme Court Rule 6.14(5), an unpublished opinion of the Iowa Court of Appeals may be cited in a brief; however, unpublished opinions shall not constitute controlling legal authority.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. 11-1547. [2-389] IN RE ESTATE OF SORENSON-PETERS

Appeal from the Iowa District Court for Pottawattamie County, James Richardson, Judge. AFFIRMED. Heard by Vogel, P.J., and Danilson and Mullins, JJ. Opinion by Mullins, J. Special concurrence in part and dissent in part by Vogel, P.J. (18 pages)

The Estate of Shawn Sorenson-Peters (Estate) appeals a district court order that apportioned wrongful death settlement proceeds one-third to the children, one-third to the surviving spouse, and one-third to the Estate, arguing that each of these claimants did not suffer an equal amount of damage as a result of the decedent's death. It also asserts the district court erred in concluding that the Estate's share of the wrongful death damages is subject to the surviving spouse's elective share. OPINION HOLDS: Upon a review of the trial court's apportionment of the wrongful death proceeds, including its legally correct conclusions as to the ultimate disposition of the Estate's portion of the wrongful death proceeds, we find the apportionment was equitable. We therefore affirm the district court's ruling as to the apportionment, which includes its conclusion that the Estate will distribute its share of the wrongful death settlement one-third to Peters and two-thirds to the children. PARTIAL SPECIAL CONCURRENCE AND PARTIAL DISSENT ASSERTS: I specially concur in the majority's decision approving the distribution of the wrongful death proceeds between the surviving spouse, children, and the estate. I read Iowa Code section 633.336 (2007) to direct that all wrongful death damages belong to the estate until such time as the court apportions the damages to the surviving spouse or children. Because of this slight difference in language, I specially concur. I also dissent in part to express my disagreement with the majority's approval of the district court's direction to the executor to distribute one-third of the estate's share to the surviving spouse. The issue of the application of the elective share statute to the wrongful death proceeds was not ripe for the district court's decision. Therefore, I would strike the sentence from the district court's order directing the executor to distribute the estate's share one-third to the surviving spouse and two-thirds to the children.

No. 11-1843. [2-470] BOSSART v. CENTRAL FREIGHT LINES, INC.

Appeal from the Iowa District Court for Polk County, Carla T. Schemmel, Judge. AFFIRMED AS MODIFIED. Heard by Vaitheswaran, P.J., Bower, J., and Miller, S.J. Opinion by Bower, J. (12 pages)

Tenant Central Freight Lines, Inc. appeals a district court's judgment entry for landlord Rowene Bossart on Bossart's action for recovery of past unpaid rent and future rent as damages under an acceleration clause in the parties' lease agreement. Central Freight contends the district court erred in: (1) finding the lease agreement contained an acceleration clause, (2) finding Bossart mitigated her damages, (3) failing to find Central Freight's lease was constructively terminated, and (4) miscalculating future damages. OPINION HOLDS: Upon our review we find the parties' lease agreement does not contain an acceleration clause. However, Bossart exercised reasonable diligence in attempting to lease the property to mitigate damages, and the lease was not constructively terminated. Accordingly, Bossart is entitled to the amount of past due rent at the time of trial in the amount of $109,920. In light of our findings, we need not address Central Freight's contention in regard to future damages. We affirm as modified.

No. 11-2025. [2-574] IN RE GUARDIANSHIP OF WILLIAMS

Appeal from the Iowa District Court for Van Buren County, James Q. Blomgren, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. Opinion by Bower, J. (8 pages)

Rex Louis Williams appeals from the district court order granting Kent William's petition to appoint a guardian for him. He contends the court abused its discretion in disallowing certain testimony into evidence. He also contends the court erred in failing to make a finding regarding his competency. OPINION HOLDS: We find the district court was acting within its discretion in sustaining the petitioner's objection to the admission of Dr. Blair's deposition as inadmissible hearsay. The record here is devoid of any evidence that Dr. Blair relied on either of the reports he was cross-examined about in forming his opinion—either as Rex's treating physician or in his capacity as an expert witness for the petitioner. Substantial evidence supports the court's finding Rex is unable to care for his personal safety or to attend to or provide for his necessities. Because the allegations in the petition for guardianship are supported by clear and convincing evidence, we affirm.

No. 12-0097. [2-582] FISH v. WAPELLO COUNTY

Appeal from the Iowa District Court for Wapello County, Joel Yates, Judge. AFFIRMED. Heard by Potterfield, P.J., and Danilson and Tabor, JJ. Opinion by Danilson, J. (13 pages)

Darwin Fish appeals from the district court's ruling granting the defendants' motion for summary judgment and dismissing Fish's petition for a writ of mandamus seeking to require maintenance of two roads as part of the Wapello County secondary road system. OPINION HOLDS: Because the board of supervisors and the county engineer did not approve the road plan, the roads did not become part of the secondary road system subject to the county's maintenance.

No. 11-1842. [2-605] THE VILLAGE AT WHITE BIRCH TOWN HOMEOWNERS ASS'N v. GOODMAN ASSOCIATES, INC.

Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge. AFFIRMED. Heard by Potterfield, P.J., and Danilson and Tabor, JJ. Opinion by Tabor, J. (14 pages)

A homeowners association challenges the district court's grant of summary judgment, which dismissed its claims against three subcontractors for breach of implied warranty of workmanlike construction and negligence. The association encourages us to extend the span of both legal theories based on the general contractor's insolvency and fairness principles, arguing the subcontractors will not otherwise be held accountable for their deficient performance. OPINION HOLDS: I. Our case law specifically excludes subcontractors from the definition of builder-vendor, the only party against whom a homeowner may now recover for breach of implied warranty of workmanlike construction. Placing the burden of workmanlike construction on anyone other than the builder-vendor—who is deemed to hold ultimate responsibility for construction—would result in a substantive expansion of the law. We do not see that expansion as within the purview of our court. II. In addition, to find the subcontractors liable for negligence would contradict recent precedent from our supreme court barring recovery in tort for purely economic losses. We accordingly affirm the grant of summary judgment.

No. 11-1319. [2-702] STATE v. EILANDER

Appeal from the Iowa District Court for Jasper County, Darrell Goodhue, Judge. AFFIRMED. Considered by Vogel, P.J., and Danilson and Mullins, JJ. Opinion by Danilson, J. (12 pages)

Jeremiah Eilander appeals from a conviction of conspiracy to manufacture methamphetamine after a bench trial on the minutes of testimony. He contends the court erred in denying his motion to suppress evidence seized upon a search of the residence. Eilander contends the district court erred in finding exigent circumstances excused the knock-and-announcement requirement. He also contends trial counsel was ineffective in failing to assert the search warrant lacked probable cause. OPINION HOLDS: I. We agree with the district court that the failure to fully comply with Iowa Code section 808.6 (2011) ("knock and announce" rule) was reasonable under the circumstances as compliance was futile and excused by exigent circumstances. We therefore uphold the denial of the motion to suppress. II. Under the totality of the circumstances presented—the tip about ongoing drug sales on the premises, the residence owner's 2011 controlled substances conviction, and the detection of a strong odor of burnt marijuana by an officer—we conclude a reasonably prudent person would believe that a crime had been committed on the premises to be searched. Particularly in light of the preference to uphold warrants in close cases, we conclude Eilander has failed to prove the prejudice prong of his ineffectiveness claim. We therefore affirm his conviction.

No. 11-1864. [2-711] O'REILLY AUTO PARTS v. ALEXANDER

Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge. AFFIRMED. Heard by Potterfield, P.J., and Danilson and Tabor, JJ. Opinion by Danilson, J. (18 pages)

O'Reilly Auto Parts appeals a district court order upholding the workers' compensation commissioner's decision awarding benefits to Jerry Alexander. O'Reilly challenges the commissioner's finding that Alexander sustained injuries arising out of and in the course of his employment, and argues his sua sponte addition of an insurance carrier into the proceedings reflected bias and was reversible error. OPINION HOLDS: Because substantial evidence supports the commissioner's finding that Alexander sustained injuries arising out of and in the course of his employment, and the commissioner's action in adding the correct insurance carrier was within the authority granted to him by the legislature and was not indicative of bias, we affirm.

No. 11-2001. [2-714] STATE v. YOUNG

Appeal from the Iowa District Court for Floyd County, Peter B. Newell, District Associate Judge. AFFIRMED. Considered by Vogel, P.J., and Danilson and Mullins, JJ. Opinion by Danilson, J. Special concurrence by Mullins, J. (6 pages)

Robert John Young appeals his conviction and sentence following a trial on the minutes of testimony, asserting the district court erred in denying his motion to dismiss based upon an alleged violation of Iowa's speedy-trial rule. OPINION HOLDS: Because Young filed a waiver of his right to a speedy trial, we affirm. SPECIAL CONCURRENCE ASSERTS: I respectfully specially concur. I would reach the same result, but not on the basis that the August 26 waiver of speedy trial waived the rights asserted by the defendant in his motion to dismiss. The initial delays in giving notice to the defendant of the original arraignment date are attributable to the State. After the defendant was arrested, the delays in reaching the arraignment and in scheduling the trial are attributable to the defendant, as a result of the conflict issue presented by his counsel, the public defender. As trial was set for August 29, 2011, the defendant's motion to dismiss, which was heard on August 22, should have been overruled for reasons attributable to defendant. Young's August 26, 2011 waiver of speedy trial did not waive the rights previously asserted in his motion, which were under advisement at the time of the waiver, and only applied prospectively.

No. 12-0119. [2-720] KALONA COOPERATIVE TELEPHONE CO. v. IOWA UTILITIES BOARD

Appeal from the Iowa District Court for Polk County, Arthur Gamble, Judge. AFFIRMED. Heard by Potterfield, P.J., and Danilson and Tabor, JJ. Opinion by Tabor, J. (17 pages)

Kalona Cooperative Telephone Company appeals the district court's order affirming the Iowa Utilities Board's rejection of Kalona's proposed intrastate access rates. The board denied the proposed rates because Kalona's embedded cost study was fraught with errors and misallocations. Kalona argues the board acted arbitrarily and capriciously first by rejecting the embedded cost formula without giving proper notice, and by rejecting its study in full rather than correcting the discrepancies. It also argues insufficient evidence exists on record to support the board's denial. OPINION HOLDS: I. We hold the board clearly explained embedded cost studies remain viable formulas to support proposed rates so long as the potential inaccuracies of the studies are addressed, and that its rejection of Kalona's study was based on its pervasive errors and misallocations. The board acted within its authority to reject Kalona's study entirely as fundamentally flawed rather than attempt to recalculate admitted inaccuracies to salvage it. II. Because the study lacked credibility, the board's decision to reject Kalona's rates was supported by substantial evidence.

No. 12-0337. [2-749] IN RE MARRIAGE OF SMITH

Appeal from the Iowa District Court for Shelby County, Greg W. Steensland, Judge. AFFIRMED AS MODIFIED. Heard by Vogel, P.J., and Mullins and Bower, JJ. Opinion by Bower, J. (14 pages)

Mark Smith appeals, and Julie Smith cross-appeals, from the economic provisions of the decree dissolving their marriage. Mark contends the district court erred in awarding spousal support to Julie and in dividing the marital property. Julie contends the district court erred in its award of trial attorney fees. Both parties seek an award of their appellate attorney fees. OPINION HOLDS: We find the district court's award of spousal support is appropriate considering the facts and circumstances of this case. We modify the property provisions of the decree to reflect a decrease in the valuation of the office building from $110,000 to $80,000. To account for this modification, we reduce Mark's equalization payment to Julie from $116,240 to $101,240. We affirm the property distribution in all other respects. We further conclude the district court did not abuse its discretion in declining to award Julie additional trial attorney fees. We decline to award either party their attorney fees on appeal.

No. 12-0492. [2-751] IN RE MARRIAGE OF AMBROSY

Appeal from the Iowa District Court for Jackson County, Paul L. Macek, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. Opinion by Bower, J. (10 pages)

Lorin Ambrosy appeals from the economic provisions of the decree dissolving his marriage to Sara Ambrosy. Lorin contends the district court's distribution of the parties' assets is inequitable, and alleges the court based its property distribution scheme on the "faulty underlying premise" that Sara would otherwise be entitled to spousal support. Both Lorin and Sara seek an award of their appellate attorney fees. OPINION HOLDS: Upon our review, we find the district court's award of spousal support and property distribution is appropriate and equitable considering the facts and circumstances of this case. We decline to award either party their attorney fees on appeal.

No. 11-2071. [2-768] BARZ v. STATE

Appeal from the Iowa District Court for Cerro Gordo County, James M. Drew, Judge. AFFIRMED. Considered by Danilson, P.J., Mullins, J., and Miller, S.J. Opinion by Miller, S.J. (12 pages)

Hugh Shepard owned land on the south shore of Clear Lake in Cerro Gordo County, Iowa. On January 24, 1910, Shepard and his wife signed a document stating, "And I hereby dedicate the streets and alleys and park as shown on the within plat, to public use as such forever." A small piece of land was designated on the plat map as a park. A newspaper article, handbill, and pamphlet, however, mentioned three other parks, including the "Lake Front" area. In November 1981, the successors in interest to Shepard signed quit claim deeds transferring their interest in the "Lake Front" to the property owners whose lots bordered the south side of the "Lake Front." The State exercised jurisdiction over the area, claiming it had been dedicated to the public. The bordering lot owners brought an action against the State seeking to quiet title to the "Lake Front" property. After a trial, the court entered a decision quieting title in the property to the plaintiffs against the State. The State appeals. OPINION HOLDS: I. While the State presented some evidence to show Shepard intended to dedicate the "Lake Front" property to the public at the time of the 1910 dedication, that evidence did not manifest a positive and unmistakable intention to permanently abandon his property to public use. Furthermore, the evidence does not show an unequivocal act by Shepard to dedicate the property. We concur in the district court's conclusion that the State has failed to show the property had been dedicated for public use. II. Because the State has failed to show the public's right to the property, it does not have jurisdiction of the property under section Iowa Code section 461A.11 (2009). The plaintiffs have adequately shown their ownership interest through the 1981 deeds from Shepard's successors in interest.

No. 12-0178. [2-774] DAVIS MOBILE HOMES, L.L.C. v. U.S. BANK NAT'L ASS'N

Appeal from the Iowa District Court for Henry County, Mary Ann Brown, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ. Opinion by Tabor, J. (17 pages)

A bank customer asks us to decide if his bank can enforce the one-year limitation on filing legal actions contained in the deposit account agreement. OPINION HOLDS: I. Because Iowa law charges the customer with knowledge of the information contained in his bank statements, the customer cannot prevail on his claim that he lacked notice of the limitation. II. The customer also falls short of showing the time-bar provision was unconscionable. Accordingly, we affirm the grant of summary judgment to the bank.

No. 12-0197. [2-775] STATE v. ANDERSON

Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge. AFFIRMED. Considered by Vogel, P.J., and Danilson and Mullins, JJ. Opinion by Danilson, J. (14 pages)

John Anderson appeals following his conviction for possession of a simulated controlled substance with intent to deliver while in the immediate possession or control of a firearm, and possession of a controlled substance with the intent to deliver while in the immediate possession or control of a firearm. He contends the sentences on the two counts should merge; the trial court erred in concluding the marital privilege did not apply to prohibit Rebecca Gladney from testifying; and the trial court erred in admitting Gladney's hearsay testimony. OPINION HOLDS: I. Because Anderson was charged and convicted with multiple counts each based on the possession of a separate and distinct substance there is no merger. II. The district court's finding that the defendant failed to prove a marriage is fully supported in the record. III. We find no abuse of discretion in the trial court's determination that Officer Duncan's testimony concerning Gladney's prior statements was permissible impeachment evidence. And, even if we were to conclude some of the statements admitted through Officer Duncan's testimony were hearsay, we conclude there was no prejudicial error. We affirm.

No. 12-0597. [2-786] McMICHEAL v. MIDAMERICAN ENERGY CO.

Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge. REVERSED AND REMANDED. Heard by Potterfield, P.J., and Danilson and Tabor, JJ. Opinion by Danilson, J. (11 pages)

Glen McMicheal seeks review of the district court ruling on MidAmerican Energy Co.'s motion for summary judgment, which dismissed McMicheal's retaliatory discharge claim, denied summary judgment as to McMicheal's age discrimination claim, and struck McMicheal's claim for punitive damages. OPINION HOLDS: Because res judicata principles do not bar McMicheal's retaliatory discharge claim, we reverse and remand.

No. 11-1610. [2-795] STATE v. SANDERS

Appeal from the Iowa District Court for Jasper County, Paul R. Huscher, Judge. AFFIRMED. Considered by Vogel, P.J., and Danilson and Mullins, JJ. Opinion by Danilson, J. (6 pages)

Tommy Dean Sanders appeals his convictions for conspiracy to manufacture methamphetamine, manufacturing methamphetamine, possession of a precursor (lithium), and possession of a precursor (ephedrine). He contends there was insufficient evidence to support his convictions for conspiracy to manufacture methamphetamine, possession of a precursor (lithium), and possession of a precursor (ephedrine). OPINION HOLDS: Because Sanders failed to preserve his sufficiency-of-the-evidence claim on the conspiracy charge and the possession of a precursor (ephedrine) charge, and substantial evidence supports the jury's verdict of guilt on the possession of a precursor (lithium) charge, we affirm.

No. 11-1620. [2-796] STATE v. HUGHES

Appeal from the Iowa District Court for Black Hawk County, James C. Bauch, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ. Opinion by Tabor, J. (8 pages)

Robert Hughes appeals from his conviction for possessing cocaine as an habitual offender. He claims insufficient proof of his dominion and control over the crack pipe containing the controlled substance. He also contends trial counsel was ineffective in allowing peace officer testimony concerning his postarrest silence. OPINION HOLDS: On the question of substantial evidence, a reasonable jury could find credible support in the record for Hughes's constructive possession of the pipe. Because Hughes cannot show a reasonable probability he would have been acquitted if his counsel had successfully objected to references to his silence, he fails to meet his burden of proving counsel ineffective.

No. 11-1665. [2-797] STATE v. HADAWAY

Appeal from the Iowa District Court for Story County, Lawrence E. Jahn (motion in limine) and Steven P. Van Marel (jury trial), District Associate Judges. REVERSED AND REMANDED. Heard by Doyle, P.J., and Mullins and Bower, JJ. Opinion by Mullins, J. (12 pages)

Keith Allen Hadaway appeals his conviction, sentence, and judgment for possession of a firearm by a prohibited person, a class D felony, in violation of Iowa Code section 724.26(2) (2009), following a jury trial. He asserts the district court erred when it determined that his prior domestic assault conviction was a qualifying offense under Iowa Code section 724.26(2). He therefore claims the district court erred in denying his motion for judgment of acquittal. OPINION HOLDS: We find there was not sufficient evidence to convict Hadaway of a violation of Iowa Code section 724.26 as there was no evidence in the record to indicate whether his prior domestic assault conviction was a qualifying offense. His motion for judgment of acquittal should have been sustained. We reverse the judgment and sentence entered, and remand for a dismissal of the charge.

No. 11-1838. [2-798] IN RE DETENTION OF HUTCHCROFT

Appeal from the Iowa District Court for Dubuque County, Michael Shubatt, Judge. AFFIRMED. Considered by Vogel, P.J., and Danilson and Mullins, JJ. Opinion by Mullins, J. Dissent by Danilson, J. (8 pages)

Bradley Hutchcroft appeals the district court's order of commitment following a jury verdict finding him to be a sexually violent predator, as defined by Iowa Code section 229A.2(11) (2011). Hutchcroft asserts the district court erred in denying his motion for a directed verdict as the State failed to offer sufficient evidence to prove he suffered from a recognized mental abnormality or that he was presently dangerous. OPINION HOLDS: Based on the evidence presented, we find the State offered sufficient evidence to support the jury's conclusion that Hutchcroft suffered from a mental abnormality and was likely to reoffend if not confined to a secure facility. While the mental abnormality diagnosed may be controversial in the psychiatric community, we believe the jury was in the best position to listen to the opposing views on the issue and make the final determination of whether Hutchcroft was a sexually violent predator as defined in section 229A.2. DISSENT ASSERTS: Hebephilia is not listed in the DSM IV-TR. Defense expert witness, Dr. Allen Francis, co-author of the DSM-IV, testified that a diagnosis of hebephilia is a misuse or abuse of psychiatric diagnosis because there are no clear criteria for the diagnosis. Without such criteria, we have opened the gates too wide to encompass individuals viewed as dangerous sexual offenders. I would reverse.

No. 11-1213. [2-825] STATE v. MILLER

Appeal from the Iowa District Court for Scott County, Charles H. Pelton, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., Bower, J., and Sackett, S.J. Opinion by Sackett, S.J. (7 pages)

Walter Miller Jr. appeals his convictions for solicitation (to introduce contraband into jail), solicitation (to commit prostitution), money laundering, and possessing contraband. The charges in this case arose when Miller was in the Scott County Jail on another charge. The court granted Miller's request to make his own statement to the jury, without questions from defense counsel. Miller spent some time reviewing his underlying drug charge. The prosecutor then proceeded to cross-examine Miller about the underlying criminal charge and presented the testimony of an officer involved in Miller's previous criminal case as a rebuttal witness. OPINION HOLDS: Miller contends he received ineffective assistance because his defense counsel did not object to questions the State raised during cross-examination of him or to the State's presentation of a rebuttal witness. Under the doctrine of curative admissibility, the State could present evidence that was not relevant if the evidence was offered in response to the irrelevant evidence offered by Miller. Also, when a defendant testifies he has not committed previous crimes, the State is permitted to impeach that testimony. We conclude Miller has not shown he received ineffective assistance of counsel, and we affirm his convictions.

No. 12-0421. [2-848] IN RE MARRIAGE OF CLARK

Appeal from the Iowa District Court for Scott County, Gary D. McKenrick, Judge. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Considered by Vogel, P.J., and Danilson and Mullins, JJ. Opinion by Mullins, J. (8 pages)

A father appeals from a ruling denying his petition to modify the child custody provisions of a divorce decree, contending a material and substantial change in circumstances warrant such modification. The father also appeals the amount of a child support order, arguing the district court failed to properly include offsetting income. OPINION HOLDS: We find the communication and visitation issues insufficient to justify modification. Based on the record below, however, we find the court erred in failing to account for income provided in the mother's financial affidavit for purposes of calculating child support obligations. Accordingly, we affirm in part, reverse in part, and remand.

No. 12-1476. [2-882] IN RE R.N.

Appeal from the Iowa District Court for Story County, Steven P. Van Marel, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ. Opinion by Tabor, J. (11 pages)

The State appeals a juvenile court order denying its petition to terminate the rights of R.N.'s parents. The State argues the court prematurely concluded the termination hearing without allowing the guardian ad litem (GAL) to present evidence. In addition, the State challenges the court's conclusion that factors in Iowa Code section 232.116(3) (2011) weigh against terminating the rights of the mother. The State also contests the court's determination the record lacked clear and convincing evidence of the father's abandonment of R.N. OPINION HOLDS: I. We decline the State's invitation to remand the case for the taking of additional evidence. II. We find no error in the juvenile court's reliance on section 232.116(3)(a) and (c) in declining to terminate the mother's rights. The record reflects a strong bond between the mother and daughter, and R.N. remains in the custody of her maternal grandparents. III. Finally, while it is a closer call, we agree with the juvenile court's conclusion that the State did not prove the grounds for terminating the father's rights by clear and convincing evidence.

No. 12-1534. [2-921] IN RE A.S.

Appeal from the Iowa District Court for Polk County, Rachel Seymour, District Associate Judge. AFFIRMED. Considered by Doyle, P.J., and Mullins and Bower, JJ. Opinion by Mullins, J. (7 pages)

A mother appeals the termination of her parental rights under Iowa Code section 232.116(1)(d), (e), and (f) (2011), contending the State failed to present clear and convincing evidence to support grounds for termination and termination was not in the children's best interest. OPINION HOLDS: We find by clear and convincing evidence the juvenile court could not return the children to the mother's custody without subjecting the children to an imminent risk of adjudicatory harm because of the mother's unresolved physical health, mental health, and substance issues. The mother's inability to provide a safe and stable home and the children's need for permanency support termination. We find termination proper under section 232.116(1)(f). Accordingly, we affirm.

No. 12-1599. [2-922] IN RE J.W.

Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld, District Associate Judge. AFFIRMED. Considered by Doyle, P.J., and Mullins and Bower, JJ. Opinion by Bower, J. (8 pages)

A mother appeals from the orders removing her children and continuing their removal following allegations of physical abuse. She contends the allegations underlying both orders—that her paramour abused the children—is not supported by the evidence. OPINION HOLDS: Because the evidence established removal is necessary for the children's safety and is the least-restrictive, appropriate placement, we affirm.

No. 12-1605. [2-952] IN RE M.N.

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

The mother appeals from the juvenile court's permanency order placing M.N., born in 2003, in the custody of her biological father. OPINION HOLDS: Because M.N. lived a tumultuous life with her mother, and issues that led to the removal remain, we affirm.

No. 11-1448. [2-737] CHRISTIANSEN v. IOWA BOARD OF EDUCATIONAL EXAMINERS

Appeal from the Iowa District Court for Johnson County, Robert E. Sosalla, Judge. DISTRICT COURT ORDERS VACATED. Heard by Eisenhauer, C.J., and Vaitheswaran and Doyle, JJ. Opinion by Eisenhauer, C.J. Special concurrence by Doyle, J. Dissent by Vaitheswaran, J. (12 pages)

Terry Christiansen appeals from the district court decision affirming the disciplinary action of the Iowa Board of Educational Examiners (board). The board suspended his license to teach for ninety days and revoked his coaching and physical education endorsements. The board contends Christiansen's petition for judicial review was untimely and the board acted properly. OPINION HOLDS: Christiansen's January 2010 petition for judicial review was filed before the board issued its final decision in March. Therefore, the district court did not acquire jurisdiction, and it correctly dismissed Christiansen's petition for judicial review on April 16. Because the district court did not acquire jurisdiction, its July 27 orders "correcting" its April 16 ruling and deciding the merits of Christiansen's petition are void. We vacate the district court's July 27 orders. SPECIAL CONCURRENCE ASSERTS: Although I agree with the majority opinion, I write separately to emphasize that this is the first time we have addressed the circumstances of dueling applications for rehearing in an agency proceeding. Consequently, I believe the issue deserves further comment. DISSENT ASSERTS: I respectfully dissent for the reasons stated in my dissent in Cooper v. Kirkwood Community College, 782 N.W.2d 160, 168 (Iowa Ct. App. 2010). In my view, there is even stronger reason to reach the merits in this case because Christiansen filed his petition for judicial review within thirty days of the denial of his own application for rehearing.

No. 10-0968. [2-821] CROSS v. STATE

Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge. AFFIRMED IN PART, AND REVERSED AND REMANDED IN PART. Considered by Potterfield, P.J., Bower, J., and Huitink, S.J. Opinion by Huitink, S.J. (9 pages)

Floyd Cross was convicted of first-degree robbery, in violation of Iowa Code sections 711.1 and 711.2 (2005), and willful injury causing serious injury, in violation of section 708.4(1). The district court merged the two convictions for purposes of sentencing. Cross filed an application for postconviction relief claiming he received ineffective assistance of counsel. The district court denied his request. Cross now appeals. OPINION HOLDS: I. Cross had not shown the result of the trial would have been different if the defense attorney had subpoened the victim's treating physician. II. Cross has not shown he received ineffective assistance because his defense counsel did not request a limiting instruction under Iowa Rule of Evidence 5.105 regarding the victim's testimony that he and Cross had used illegal drugs together in the past. III. Cross has not shown he received ineffective assistance because defense counsel did not object to the victim's testimony that Cross committed the theft of soda pop on the night of the incident. IV. Cross has not shown he received ineffective assistance because defense counsel did not make a more specific motion for judgment of acquittal. V. Cross has not shown he received ineffective assistance because defense counsel failed to object to jury instructions on aiding and abetting, and joint criminal conduct. VI. Cross did not adequately support his other claims of ineffective assistance. VII. In this case, it is not clear whether the convictions were merged or just the sentences. We reverse the sentencing order and remand for a new order merging the convictions, as well as the sentences.

No. 11-1515. [2-858] STATE v. FRAZIER

Appeal from the Iowa District Court for Linn County, Stephen B. Jackson, Judge. AFFIRMED. Considered by Doyle, P.J., Tabor, J., and Huitink, S.J. Opinion by Huitink, S.J. (5 pages)

David Frazier appeals from judgment convicting him of sexual abuse in the second degree and lascivious acts with a child in violation of Iowa Code sections 709.3(2) and 709.8(1) (2009). OPINION HOLDS: Frazier contends the evidence of record is not sufficient to support the jury verdicts finding him guilty on both counts and the trial court's resulting judgment must be reversed. We conclude there is substantial evidence in the record to show Frazier touched the genitals of the child. There is also substantial evidence in the record to support a finding that Frazier had the intent to arouse or satisfy the sexual desires of either himself or the child. Because we find the evidence of record sufficient to support the jury's verdicts, we affirm the trial court's judgment on both counts.

No. 11-2101. [2-576] LANCZOS v. WALKER

Appeal from the Iowa District Court for Polk County, Artis Reis, Judge. AFFIRMED AND REMANDED. Heard by Potterfield, P.J., and Doyle and Mullins, JJ. Opinion by Doyle, J. (16 pages)

First-time homebuyer, Adrienn Lanczos, sued sellers Larry and Monte Walker, alleging they failed to disclose multiple problems with the house she purchased from them. The jury found in favor of Lanczos on her breach of contract and Iowa Code chapter 558A (2009) claims, awarding her $66,500 in damages on the breach of contract claim and nothing on the other. The Walkers filed a combined motion for new trial and judgment notwithstanding the verdict. The trial court denied the motion, and the Walkers appealed. OPINION HOLDS: Upon viewing the record in the light most favorable to Lanczos, we conclude substantial evidence supports the jury's finding that the Walkers knew of, or in the exercise of ordinary care could have discovered, problems with the house. We further conclude the jury's award of damages was not inconsistent and was supported by substantial evidence. The judgment of the trial court is affirmed, and the case is remanded for an evidentiary hearing on Lanczos's claim for appellate attorney fees.

No. 11-0837. [2-594] BRODENE v. STATE

Appeal from the Iowa District Court for Polk County, Artis Reis, Judge. AFFIRMED. Heard by Doyle, P.J., and Mullins and Bower, JJ. Tabor, J., takes no part. Opinion by Doyle, P.J. (10 pages)

Raymond Brodene appeals the district court's dismissals of his request for DNA testing of evidence from his 1992 conviction and his application for postconviction relief (PCR). OPINION HOLDS: Upon our review, we conclude Brodene has no constitutional right to further DNA testing, and he failed to satisfy the requirements Iowa Code section 81.10 (2005), rendering his remaining argument moot. Accordingly, we affirm the district court's dismissals of his PCR application and his request for DNA testing.

No. 12-0054. [2-771] FROHWEIN v. ESTATE OF BRANDT

Appeal from the Iowa District Court for Hardin County, Michael J. Moon, Judge. AFFIRMED. Heard by Doyle, P.J., and Mullins and Bower, JJ. Opinion by Doyle, P.J. (9 pages)

Beneficiary Joyce Frohwein appeals from the probate court's order overruling her objections to the executor's final report in the estate of Iona Brandt, contending the court erred in finding there was not unpaid interest due to the estate under a real estate contract and that the estate was not entitled to compound interest. OPINION HOLDS: After a careful de novo review, we agree with the probate court's order finding the modification agreement was unambiguous and that Brandt agreed to the modification without undue influence from the other beneficiary, Sharon Ingebritson. We additionally agree the interest calculation is to be computed on a simple, not compound, basis. Accordingly, we affirm the order of the probate court.

No. 12-0244. [2-806] IN RE ESTATE OF ROWELL

Appeal from the Iowa District Court for Wapello County, Annette J. Scieszinski, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ. Opinion by Doyle, J. (12 pages)

In this appeal, we are asked to untangle the commingling of farming assets by two brothers who were, in the words of the trial court, life-long compatriots in farming. OPINION HOLDS: Based upon our review of the record, we conclude the court correctly determined the ownership of the disputed items of property and affirm its judgment.

No. 11-2004. [2-893] STATE v. SHADLOW

Appeal from the Iowa District Court for Butler County, Peter B. Newell, District Associate Judge. AFFIRMED. Considered by Doyle, P.J., and Mullins and Bower, JJ. Opinion by Doyle, P.J. (4 pages)

Kenneth Shadlow appeals, contending the sentence imposed by the district court was inappropriate and his trial counsel provided ineffective assistance. OPINION HOLDS: Upon our review, we find no abuse of discretion on the part of the district court in sentencing Shadlow, and we conclude Shadlow's other issues asserted concerning his sentence were waived or without merit. Accordingly, we affirm Shadlow's judgment and sentence entered following his guilty plea. We preserve his claim of ineffective assistance of trial counsel for possible postconviction relief proceedings.

No. 11-2005. [2-894] STATE v. SHADLOW

Appeal from the Iowa District Court for Butler County, Peter B. Newell, District Associate Judge. AFFIRMED. Considered by Doyle, P.J., and Mullins and Bower, JJ. Opinion by Doyle, P.J. (4 pages)

Kenneth Shadlow appeals, contending the sentence imposed by the district court was inappropriate and his trial counsel provided ineffective assistance. OPINION HOLDS: Upon our review, we find no abuse of discretion on the part of the district court in sentencing Shadlow, and we conclude Shadlow's other issues asserted concerning his sentence were waived or without merit. Accordingly, we affirm Shadlow's judgment and sentence entered following his guilty plea. We preserve his claim of ineffective assistance of trial counsel for possible postconviction relief proceedings.

No. 12-1478. [2-917] IN RE J.F.

Appeal from the Iowa District Court for Marshall County, Stephen A. Owen, District Associate Judge. AFFIRMED ON BOTH APPEALS. Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ. Opinion by Doyle, J. (7 pages)

A mother and father separately appeal from the order terminating their parental rights. OPINION HOLDS: Upon our de novo review of the record, we find the father did not preserve for appeal his argument seemingly challenging the grounds for termination. Nevertheless, we agree with the juvenile court that the State proved by clear and convincing evidence termination of the father's parental rights was proper under Iowa Code section 232.116(1)(e)(2011). We find no error in the court's decision not to leave the case open for further evidence. Additionally, we agree with the court's finding that termination of the parents' parental rights was in the child's best interests, and we do not address the mother's other arguments for lack of standing. Accordingly, we affirm on both appeals the juvenile court's termination of each parent's parental rights.

No. 12-1602. [2-950] IN RE I.W. AND O.W.

Appeal from the Iowa District Court for Warren County, Kevin A. Parker, District Associate Judge. AFFIRMED. Considered by Doyle, P.J., and Mullins and Bower, JJ. Opinion by Doyle, P.J. (5 pages)

A mother appeals from the termination of her parental rights. OPINION HOLDS: Upon our de novo review, we conclude the juvenile court did not err in (1) waiving reasonable efforts in the case; (2) finding termination of the mother's parental rights was in the children's best interest; and (3) not granting the mother additional time. Unfortunately, the record shows little to no progress in this case concerning the mother's severe addiction to methamphetamine, and there is simply no evidence in this record to establish that additional time would yield any different result. We accordingly affirm the juvenile court order terminating the parental rights of the mother to her two children.

No. 11-1574. [2-570] IN RE GUARDIANSHIP OF F.W.

Appeal from the Iowa District Court for Dubuque County, John J. Bauercamper, Judge. AFFIRMED. Considered by Potterfield, P.J., and Danilson and Tabor, JJ. Opinion by Potterfield, P.J. (15 pages)

B.W., former guardian/conservator and the spouse of F.W., appeals from the district court's order dissolving the guardianship and conservatorship. OPINION HOLDS: Because B.W. failed to prove the requisites for guardianship and conservatorship, we affirm the termination.

No. 11-1768. [2-766] STATE v. WALKER

Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge. AFFIRMED. Heard by Potterfield, P.J., and Danilson and Tabor, JJ. Opinion by Potterfield, P.J. (10 pages)

Kristina Walker appeals from her jury trial, conviction, and sentence for possession of a controlled substance, third offense. She first contends counsel was ineffective in failing to suppress evidence based on involuntary consent. Next, she contends the court erred in denying her motions for judgment of acquittal and for new trial as the evidence against her was insufficient for conviction. Finally, she appeals her sentence, contending the district court failed to provide rationale and imposed an improper sentence. OPINION HOLDS: Walker's counsel was not ineffective, the district court properly denied her motions for judgment of acquittal and new trial, the district court gave adequate rationale for its sentence, and the sentence imposed was within the court's discretion.

No. 12-0154. [2-773] ZAEHRINGER v. COUNTY OF MUSCATINE

Appeal from the Iowa District Court for Muscatine County, John D. Telleen, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. Opinion by Potterfield, J. (5 pages)

David Zaehringer appeals from the district court's grant of Muscatine County's motion for summary judgment, contending the court erred in three respects: first, in finding there were no genuine issues of material fact; second, in determining the defect in the land was latent; and third, in finding the County was entitled to judgment as a matter of law. OPINION HOLDS: Zaehringer did not present to the district court material facts in dispute, did not present evidence the defect was known or should have been known to the County in order to establish a duty to maintain, and otherwise did not sufficiently address for our review the trial court's grounds for its ruling.

No. 11-0778. [2-823] STATE v. RUNGE

Appeal from the Iowa District Court for Polk County, Douglas Staskal, Judge. AFFIRMED. Considered by Potterfield, P.J., and Doyle and Danilson, JJ. Opinion by Potterfield, P.J. (8 pages)

Wendy Weiner Runge appeals from her sentence following her guilty plea to first-degree fraudulent practices, contending: (1) the district court improperly considered her level of remorse in its sentencing, (2) her pre-plea statements should not have been considered on the issue of remorse, (3) the district court's reliance on these statements violated her right to free speech, and (4) the district court abused its discretion in imposing her sentence. OPINION HOLDS: I. Lack of remorse was properly considered in sentencing following a guilty plea, II. pre-plea statements were also properly considered, III. Runge's constitutional right was not violated, and IV. the district court did not abuse its discretion in imposing her sentence.

No. 11-1991. [2-837] STATE v. ANDERSON

Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer, Judge. AFFIRMED. Heard by Potterfield, P.J., and Danilson and Tabor, JJ. Opinion by Potterfield, P.J. (14 pages)

On appeal from his convictions for sexual abuse in the second degree and sexual abuse in the third degree, Johnny Anderson alleges he received ineffective assistance of trial counsel because there was no motion to dismiss the charges based on a violation of his rights to a speedy trial and substantive due process. OPINION HOLDS: Anderson waived his ninety-day and one-year speedy trial rights, did not reassert them, and requested many of the continuances ordered by the court. The district court on several occasions attempted to bring this case to trial. We will not on this record find counsel ineffective. We therefore affirm the defendant's convictions.

No. 11-2095. [2-842] BAHL v. EMPLOYMENT APPEAL BOARD

Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. Opinion by Potterfield, J. (5 pages)

Greg Bahl appeals from the district court's affirmance of the employment appeal board's affirmance of the administrative law judge's denial of unemployment benefits. He contends the appeal board erred in two ways: first, in finding his refusal to accept an assignment from his employer was an act of disqualifying misconduct, and second, in not considering additional evidence. OPINION HOLDS: The appeal board's finding that Bahl was discharged for disqualifying misconduct is supported by substantial evidence, and the board did not abuse its discretion in declining to consider additional evidence.

No. 12-0490. [2-850] ROBERTS EQUIPMENT DIVISION, INC. v. SILVER LAKE FARMS CORP.

Appeal from the Iowa District Court for Washington County, Myron L. Gookin, Judge. AFFIRMED. Heard by Potterfield, P.J., and Danilson and Tabor, JJ. Opinion by Potterfield, P.J. (11 pages)

Roberts Equipment Division, Inc. ("Roberts"), appeals from the proceedings quieting title in Silver Lake Farms, Corp. ("Silver") and reforming both parties' deeds. Roberts contends first, that the court inequitably reformed the deeds to conform to the property line stated at auction and incorrectly quieted title in Silver; second, that the assessment of surveyor costs by the district court was inequitable; and third, that the court erred in its assessment of damages. Silver cross-appeals, contending the district court erred in its assessment of surveyor costs, and denial of attorney fees. Silver also requests appellate attorney fees. OPINION HOLDS: Upon our de novo review, we find the reformation of deeds equitable, the denial of trial attorney fees appropriate, appellate attorney fees inappropriate, and the assessment of costs equitable.

No. 12-0786. [2-854] IN RE J.N.

Appeal from the Iowa District Court for Johnson County, Carl D. Baker, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. Opinion by Potterfield, J. (5 pages)

J.N. appeals from the district court's order finding him severely mentally impaired and involuntarily committing him to inpatient hospitalization, along with its later order to outpatient treatment. He contends the district court erred in finding he lacked sufficient judgment to make responsible decisions regarding his treatment, and that he was a danger to himself or others. OPINION HOLDS: We affirm the district court, finding clear and convincing evidence exists for J.N.'s involuntary commitment.

No. 12-0045. [2-865] STATE v. SOUSA

Appeal from the Iowa District Court for Polk County, William A. Price, District Associate Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. Opinion by Potterfield, J. (3 pages)

Brandon Sousa contends the district court abused its discretion in revoking his deferred judgment. OPINION HOLDS: The district court revoked Sousa's deferred judgment and imposed a jail sentence in light of several violations of the terms of his probation and a new criminal charge within months of his plea of guilty and sentencing. The sentencing court's decision was not exercised on untenable grounds or for reasons that were clearly unreasonable; we therefore affirm.

No. 12-1405. [2-879] IN RE T.G.

Appeal from the Iowa District Court for Jasper County, Thomas W. Mott, District Associate Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. Opinion by Potterfield, J. (7 pages)

A father appeals the termination of his parental rights. He contends that the State failed to provide reasonable efforts for reunification; that the court erred in granting the guardian ad litem's request to waive reasonable efforts; and that the State, through the Department of Human Services (DHS), adopted an adversarial position preventing reunification. OPINION HOLDS We affirm, finding the district court properly waived reasonable efforts and the adversarial position issue was not preserved for appeal.

No. 11-1900. [2-892] TURKLE v MCALONEY

Appeal from the Iowa District Court for Scott County, David H. Sivright Jr., Judge. AFFIRMED. Considered by Potterfield, P.J., and Danilson and Tabor, JJ. Opinion by Potterfield, P.J. (4 pages)

Brad Turkle filed a petition to establish custody and visitation for his son born to Laura McAloney in November 2007. The district court awarded the parties joint legal custody and placed the child in the mother's physical care. Brad appeals from ruling on physical care and the award of trial attorney fees. OPINION HOLDS: Upon our de novo review and in light of the weight we afford the factual findings of the district court, we find no reason to disturb the district court's decision to place the child in Laura's physical care. We also find no abuse of discretion in the trial court's award of attorney fees. We award Laura $1000 in appellate attorney fees. Costs of appeal are assessed to Brad.

No. 12-1477. [2-916] IN RE M.D., C.D., AND J.D. JR

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

A mother and father appeal separately from the termination of their parental rights to three children: M.D., C.D., and J.D. The childrens' mother contends the State did not provide reasonable efforts, the grounds for termination were not supported by clear and convincing evidence, the court abused its discretion in denying her request for additional time, termination was not in the children's best interests, and the court should have applied a factor weighing against termination under 232.116(3)(c) (2011). The childrens' father appeals separately, contending the state did not prove by clear and convincing evidence the grounds for termination of his rights, termination of his rights was not in the children's best interests, the state failed to make reasonable efforts, and the court abused its discretion in denying his request for additional time. OPINION HOLDS: We affirm the termination of parental rights for both parents.

No. 12-1603. [2-949] IN RE B.E. AND A.E.

Appeal from the Iowa District Court for Poweshiek County, Randy S. DeGeest, District Associate Judge. AFFIRMED ON BOTH APPEALS. Considered by Potterfield, P.J., and Danilson and Tabor, JJ. Opinion by Potterfield, P.J. (7 pages)

A mother and a father separately appeal the order terminating their parental rights to their twins, B.E. and A.E., born in September 2011. OPINION HOLDS: Because grounds for termination exist, reasonable efforts at reunification were made, and termination is in the children's best interests, we affirm on both appeals.

No. 11-1231. [2-499] STATE v. POTHAST

Appeal from the Iowa District Court for Bremer County, Stephen P. Carroll, Judge. REVERSED AND REMANDED. Heard by Vaitheswaran, P.J., and Bower and Huitink, JJ. Opinion by Vaitheswaran, P.J. (6 pages)

On discretionary review, the State challenges a district court ruling suppressing Alexander Pothast's blood alcohol test results due to an inaccurate implied consent advisory. OPINION HOLDS: Based upon the totality of the circumstances before us, we conclude the inaccurate advisory would not have affected Pothast's decision to submit to or refuse chemical testing. We accordingly reverse the district court ruling that suppressed the blood test results obtained from the implied consent blood samples, and we remand for further proceedings.

No. 11-0209. [2-560] ALLEN v. STATE

Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Tabor, J., takes no part. Opinion by Vaitheswaran, P.J. (7 pages)

Jimmy Allen appeals the dismissal of his application for postconviction relief as untimely under Iowa Code section 822.3 (2003). He claims the district court erred in finding "141 pages" of documents produced by the Des Moines Police Department in 2001 were not newly discovered evidence implicating the ground-of-fact exception to the three-year time bar of section 822.3. OPINION HOLDS: Allen had the burden of establishing that his claim fell within the ground-of-fact exception. On this record, we have no trouble finding that he failed to satisfy his burden. We accordingly affirm the district court's dismissal of Allen's second postconviction relief application as untimely.

No. 11-2112. [2-578] FAUST v. SAKAS

Appeal from the Iowa District Court for Dubuque County, John C. Bauercamper, Judge. REVERSED AND REMANDED. Heard by Eisenhauer, C.J., and Vogel and Vaitheswaran, JJ. Opinion by Vaitheswaran, J. (8 pages)

Homeowners appeal a district court order foreclosing two subcontractors' mechanics' liens on their property, contending that the subcontractors did not comply with a statutory notice requirement, rendering their liens unenforceable. OPINION HOLDS: Since the subcontractors did not substantially comply with the notice requirements of Iowa Code section 572.14 (Supp. 2007), their liens are unenforceable. Additionally, attorney fees awarded to both subcontractors must be reversed.

No. 11-0944. [2-735] JACKSON v. STATE

Appeal from the Iowa District Court for Polk County, Artis Reis, Judge. AFFIRMED. Heard by Eisenhauer, C.J., and Vogel and Vaitheswaran, JJ. Tabor, J., takes no part. Opinion by Vaitheswaran, J. (6 pages)

A postconviction relief applicant contends that the State withheld exculpatory evidence in the form of a letter written by the victim and that he received ineffective assistance of counsel when his attorney failed to procure that letter prior to the deposition of that victim. OPINION HOLDS: The prosecution did not suppress exculpatory evidence, so his claim under Brady v. Maryland, 373 U.S. 83 (1963) is denied; the defendant also did not receive ineffective assistance of counsel related to the discovery of that evidence prior to a deposition of the complaining witness.

No. 12-1406. [2-915] IN RE T.M.

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

A mother appeals the termination of her parental rights to her child, contending (1) the district court should not have terminated her rights pursuant to the several cited grounds for termination and (2) termination was not warranted because a relative had custody of the child and the mothe shared a close bond with the child. OPINION HOLDS: A ground cited by the district court for terminating the mother's parental rights is supported by the record, and none of the statutory factors that may be used to avoid termination are present in this case.

No. 12-1531. [2-925] IN RE N.P.

Appeal from the Iowa District Court for Mills County, Gary K. Anderson, District Associate Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Vogel and Vaitheswaran, JJ. Opinion by Vaitheswaran, J. (4 pages)

A mother appeals adjudicatory and dispositional orders involving her son, contending (1) the juvenile court should not have adjudicated him a child in need of assistance and (2) this court should set aside the juvenile court's subsequent dispositional order transferring custody of the child to the Department of Human Services for placement in foster care. OPINION HOLDS: The juvenile court's order adjudicating the child as one in need of assistance reflects a considered judgment that the child's interests would be best served by providing the mother with the assistance she required, and given the imminent likelihood of homelessness, we concur in the juvenile court's dispositional order placing the child with the Department of Human Services for placement in foster care.

No. 11-1583. [2-601] GENGLER v. OROZCO

Appeal from the Iowa District Court for Woodbury County, Jeffrey L. Poulson, Judge. AFFIRMED. Considered by Vogel, P.J., and Danilson and Mullins, JJ. Opinion by Vogel, P.J. (3 pages)

 

Alejandro Orozco appeals the district court's ruling granting James Gengler possession of property located in Woodbury County after the property was sold at a tax sale and the statutory redemption period had expired. Orozco claims the district court erred in finding he was served with the required notice of the expiration of the right of redemption. He also claims the district court erred in holding the notice provisions of Iowa Code chapter 447 (2007) do not violate his due process rights. OPINION HOLDS: The district court rejected both of Orozco's claims in a thorough and well-reasoned opinion. We agree with the district court and we affirm pursuant to Iowa Court Rule 21.29(d).

No. 11-1979. [2-713] SIERRA CLUB OF IOWA v. IOWA DEPARTMENT OF TRANSPORTATION

Appeal from the Iowa District Court for Linn County, Mitchell E. Turner, Judge. AFFIRMED. Heard by Vogel, P.J., and Mullins and Bower, JJ. Opinion by Vogel, P.J. (18 pages)

 

The petitioners appeal the dismissal of their petition for judicial review of the action of the Iowa Department of Transportation (IDOT) in planning the construction of a highway through a county nature preserve and adjacent to a state nature preserve. The petitioners claim IDOT was not first required to seek a declaratory order under Iowa Code section 17A.9 (2011) and that the issue is ripe for judicial review. IDOT counters that the appeal was not timely due to the petitioners' reliance on an improper rule 1.904(2) motion, and we therefore have no appellate jurisdiction. Alternatively, IDOT urges us to affirm the district's decision that it lacked jurisdiction as the petitioners failed to exhaust their administrative remedies and the issue is not ripe for review. OPINION HOLDS: The rule 1.904(2) motion sought corrections of the district court's findings, and as such, although a close issue, we choose to find the post trial motion was properly utilized, such that the time for filing a notice of appeal of the initial ruling was tolled. However, we find the district court was correct in dismissing the petitioners' petition. The district court had nothing to judicially review because the petitioners failed to first seek the appropriate administrative remedies, specifically under section 17A.9. Furthermore, the case was not ripe for judicial review. A proposed highway that may or may not be built in a way that may or may not violate environmental protection statutes is not sufficiently ripe for a court to review.

No. 12-0126. [2-721] MOAD v. LIBBY

Appeal from the Iowa District Court for Johnson County, Nancy A. Baumgartner, Judge. REVERSED AND REMANDED. Heard by Eisenhauer, C.J., and Vogel and Doyle, JJ. Vaitheswaran, J., takes no part. Opinion by Vogel, J. (8 pages)

Douglas Moad, an over-the-road trucker, died following a motor vehicle accident that occurred while he was working in Iowa. In this appeal we review the district court's decision finding Iowa law applies to the question of whether a workers' compensation lien can be asserted against an employer's uninsured motorist policy. Dakota Truck Underwriters, Risk Administrative Services, Inc. (DTU), Moad's employer's workers' compensation carrier, asserts the district court erred in finding Iowa law applied to the question of whether DTU could recover the workers' compensation benefits provided to Moad and his family from the money received from Moad's employer's uninsured motorist carrier, Northland Insurance Company. DTU also asserts the district court erred in denying its motion to set aside the order approving the settlement of the uninsured motorist claims. OPINION HOLDS: Because we find the district court applied the incorrect Restatement (Second) of Conflict of Laws section to the question of which state's law applies to the recovery rights of a workers' compensation carrier from the uninsured motorist policy of an employer, we must reverse the district court's decision. A remand is necessary in this case for the district court to conduct further proceedings to develop the record to include the facts necessary to apply the correct Conflict of Laws section.

No. 11-0923. [2-792] STATE v. LATIKER

Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer (Motion to Dismiss) and Stephen C. Clarke (Trial), Judges. AFFIRMED. Considered by Vogel, P.J., and Danilson and Mullins, JJ. Bower, J., takes no part. Opinion by Vogel, P.J. (18 pages)

A defendant appeals from the judgment and sentence entered following his conviction for multiple drug offenses. He claims his trial counsel was ineffective for not obtaining a ruling on his motion to dismiss asserting a ninety-day speedy trial violation and related waiver of his right to speedy trial. He also claims the trial court erred in finding the evidence proved that he possessed the drugs and that he was involved in a conspiracy to deliver the cocaine and cocaine base. He also made multiple pro se claims. OPINION HOLDS: Defendant has failed to prove his counsel was ineffective, as the district court ruled on and rejected his speedy trial claim. Further, we find there was sufficient evidence to prove the statutory elements of all of the defendant's convictions. Finally, his pro se issues are either not preserved or without merit. We affirm.

No. 12-0144. [2-803] STATE v. ANDERSON

Appeal from the Iowa District Court for Johnson County, Ian K. Thornhill, Judge. AFFIRMED. Considered by Vogel, P.J., and Danilson and Mullins, JJ. Opinion by Vogel, P.J. (7 pages)

Defendant, appeals from the judgment and sentencing follow his conviction for sale, transfer, furnish, or receipt of precursors, a class C felony in violation of Iowa Code section 124B.9 (2011). He claims his trial counsel was ineffective and the district court abused its discretion in imposing a sentence. OPINION HOLDS: Because there was a sufficient factual basis for the district court to accept the defendant's guilty plea, his trial counsel was not ineffective for allowing him to plead guilty. Furthermore, the district court did not abuse its discretion in declining to suspend the defendant's sentence. We affirm.

No. 11-1898. [2-835] KELLY v. RISER

Appeal from the Iowa District Court for Scott County, Mary E. Howes (November 1, 2011 summary judgment) and Nancy S. Tabor (November 24, 2010 summary judgment), Judges. AFFIRMED. Heard by Eisenhauer, C.J., and Vogel and Vaitheswaran, JJ. Opinion by Vogel, J. (14 pages)

Before the plaintiff began working for a temporary workers' agency, he signed a release that if he were injured on the job, his exclusive remedy would be through the agency's workers' compensation carrier. He was later injured and collected workers' compensation benefits from the agency's insurance carrier. He also filed suit against three defendants: the property owner, the general contractor, and the subcontractor. The district court, on the defendants' motions, entered summary judgment rulings, finding in their favor. The plaintiff appeals. OPINION HOLDS: Regarding the order granting summary judgment to the subcontractor, the district court was correct in finding the plaintiff cannot recover on either his tort or contract claims. The release covered all claims, and was enforceable by the subcontractor as a third-party beneficiary, precluding the plaintiff from recovery on his tort claim. Regarding his contract claim, plaintiff was not a third-party beneficiary of the contract between the subcontractor and the agency and therefore not able to survive a summary judgment motion on that claim either. Regarding the order granting summary judgment to the property owner and the general contractor, the plaintiff's contract and tort claims fail here as well. The contract between the property owner and the general contractor did not create an obligation on the general contractor to maintain a safe work place for the plaintiff, as he was not a third-party beneficiary to this contract. The district court was also correct in applying Jones v. Schneider, 797 N.W.2d 611 (Iowa Ct. App. 2011) precluding plaintiff from recovering under Restatement (Second) of Torts section 411 for negligent hiring. We therefore affirm on all grounds.

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