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SUMMARY OF DECISIONS, IOWA COURT OF APPEALS 

November 12, 2009 

  

Pursuant to Iowa Supreme Court Rule 6.14(5), an unpublished opinion of the Iowa Court of Appeals may be cited in a brief; however, unpublished opinions shall not constitute controlling legal authority. 

  

NOTE:  Copies of these opinions may be obtained from the Clerk of the Supreme Court, Judicial Branch Building, 1111 East Court Avenue, Des Moines, IA 50319, for a fee of fifty cents per page. 

_____________________________________________________________________________ 

  

No. 08-1041.   [9-733]   STATE v. HEMINGWAY 

            Appeal from the Iowa District Court for Polk County, Don C. Nickerson, Judge.  AFFIRMED.  Considered by Vogel, P.J., and Potterfield, J., and Miller, S.J.  Opinion by Vogel, P.J.  (8 pages $4.00) 

  

            Following a jury trial, Mark Hemingway appeals his convictions and sentencing for willful injury, domestic abuse assault with intent to cause serious injury, and assault on a peace officer.  OPINION HOLDS: There was sufficient evidence to support the convictions.  The district court did not err in determining that an assault on a peace officer while displaying a dangerous weapon is a forcible felony, and did not abuse its discretion in not severing the assault on a peace officer charge from the other charges.  We affirm.  

  

  

No. 08-1864.   [9-743]   STATE v. ROBUCK 

            Appeal from the Iowa District Court for Jasper County, Dale Hagen, Judge.  AFFIRMED.  Considered by Vogel, P.J., Potterfield, J., and Miller, S.J.  Opinion by Vogel, P.J.  (8 pages $4.00) 

  

            Justin Robuck appeals his conviction for murder in the second degree.  OPINION HOLDS: Because we find the district court did not err in excluding Robuck's expert witness or in refusing to give a jury instruction on Robuck's right to arm himself, we affirm.  

  

  

No. 08-1864.   [9-743]   STATE v. ROBUCK 

            Appeal from the Iowa District Court for Jasper County, Dale Hagen, Judge.  AFFIRMED.  Considered by Vogel, P.J., Potterfield, J., and Miller, S.J.  Opinion by Vogel, P.J.  (8 pages $4.00) 

  

            Justin Robuck appeals his conviction for murder in the second degree.  OPINION HOLDS: Because we find the district court did not err in excluding Robuck's expert witness or in refusing to give a jury instruction on Robuck's right to arm himself, we affirm.  

  

  

No. 08-2037.   [9-797]   MARRIAGE OF SEU 

            Appeal from the Iowa District Court for Warren County, Gary G. Kimes, Judge.  AFFIRMED.  Considered by Vogel, P.J., and Doyle and Mansfield, JJ.  Opinion by Vogel, P.J.  (5 pages $2.50) 

  

            Manh Seu appeals from the district court's denial of his application to reduce his child support payments, based on his assertion that the income from his small business has dramatically declined.  OPINION HOLDS: We agree with the district court there is no credible evidence upon which to find a substantial change of circumstances, such that Manh's child support obligation should be reduced. 

  

  

No. 09-0057.   [9-798]   STATE v. MARTIN 

            Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.  AFFIRMED.  Considered by Vogel, P.J., Doyle and Mansfield, JJ.  Opinion by Vogel, P.J.  (7 pages $3.50) 

  

            Kelly Martin appeals his conviction for first-degree theft in violation of Iowa Code sections 714.1 and 714.2(1) (2007).  He asserts a factual basis does not support his Alford plea because the record does not establish that he had an intent to permanently deprive the owner of her vehicle.  OPINION HOLDS:  Because Martin fled from the police in the vehicle and at gunpoint, we find he had the requisite intent to permanently deprive the owner of her property.  As a factual basis supported his plea, we affirm his conviction.  

  

  

No. 09-1122.   [9-875]   IN RE J.J.H. 

            Appeal from the Iowa District Court for Appanoose County, William S. Owens, District Associate Judge.  AFFIRMED.  Considered by Vogel, P.J., and Doyle and Mansfield, JJ.  Opinion by Vogel, P.J.  (4 pages $2.00) 

  

            Howard appeals the termination of his parental rights to his son, J.J.H., born in 2002, claiming termination was not in his son's best interests.  OPINION HOLDS: The record demonstrates by clear and convincing evidence that Howard was offered reasonable visitation, and termination is in J.J.H.'s best interests.    

  

  

No. 08-2045.   [9-554]   MERCY v. SIMMONS 

            Appeal from the Iowa District Court for Linn County, Fae Hoover-Grinde, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., Mansfield, J., and Miller, S.J.  Opinion by Vaitheswaran, P.J.  (6 pages $3.00) 

  

            An employer appeals a final decision of the workers' compensation commissioner awarding a claimant permanent total disability benefits.  OPINION HOLDS:  Because substantial evidence supports the agency's determination, we agree with the district court's decision on judicial review that the agency's award of permanent total disability benefits must be affirmed. 

 

  

No. 08-1321.   [9-626]   RENANDER v. AAMODT 

            Appeal from the Iowa District Court for Johnson County, Fae Hoover-Grinde, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Mansfield, J., and Miller, S.J.  Opinion by Vaitheswaran, P.J.  (10 pages $5.00) 

  

            The plaintiffs appeal a district court's dismissal of their fraudulent misrepresentation claim against a defendant, contending that the court incorrectly determined two alleged representations were not actionable.  OPINION HOLDS:  There is no indication that the first alleged representation induced the plaintiffs to act due to its timing, and there is little, if any, evidence relating to whether the second alleged representation occurred. 

  

  

No. 08-1863.   [9-689]   STATE v. POYNER 

            Appeal from the Iowa District Court for Montgomery County, Timothy O'Grady, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mansfield, J., and Schechtman, S.J.  Opinion by Vaitheswaran, P.J.  (5 pages $2.50) 

  

            Arthur Poyner appeals from a district court ruling denying his request to modify a supplemental restitution order.  He challenges the jurisdiction of the court that considered the restitution issue and contends the order violates the Ex Post Facto Clauses of the United States and Iowa Constitutions.  OPINION HOLDS:  We affirm the court's denial of Poyner's latest challenge to the restitution order. 

  

  

No. 08-1921.   [9-746]   ROBY v. STATE 

            Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mansfield, J., and Mahan, S.J.  Opinion by Vaitheswaran, P.J.  (7 pages $3.50) 

  

            A postconviction relief applicant appeals the district court's decision dismissing his application for postconviction relief, contending that his original trial and appellate counsel were ineffective in failing to challenge the adequacy of his jury trial waivers.  OPINION HOLDS:  As there was no duty at the time of his jury trial waiver for counsel to ensure that an in-court colloquy was held and because the colloquies conducted by the district court were adequate, counsel did not breach a duty to their client. 

  

  

No. 09-1398.   [9-876]   IN RE D.P. 

            Appeal from the Iowa District Court for Polk County, Joe E. Smith, District Associate Judge.  AFFIRMED.  Considered by Sackett, C.J., Vaitheswaran and Danilson, JJ.  Opinion by Vaitheswaran, J.  (4 pages $2.00) 

  

            A mother appeals the termination of her parental rights to her child, contending (1) the State failed to prove the grounds for termination and (2) termination was not in the child's best interests.  OPINION HOLDS:  The mother agreed at the termination hearing that the grounds for termination were present, and given the mother's admission that she will never be in a position to assume custody of the child, termination of her parental rights is in the child's best interests. 

  

  

No. 08-1794.   [9-740]   HARTSFIELD v. STATE 

            Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.  AFFIRMED.  Considered by Sackett, C.J., and Eisenhauer and Doyle, JJ.  Opinion by Doyle, J.  (10 pages $5.00) 

  

            Napoleon Hartsfield appeals, contending his postconviction relief counsel was ineffective for not challenging the district court's "erroneous reliance on testimony about trial strategy from an attorney who did not, in fact, serve as trial counsel," as well as raising pro se claims.  OPINION HOLDS:  Because we conclude Hartsfield failed to show a reasonable probability that the outcome of the proceeding would have differed if his postconviction relief counsel had successfully challenged the court's reliance on the attorney's testimony, and that his pro se claims are without merit, we affirm the decision of the district court. 

  

  

No. 09-0226.   [9-759]   ELLIOTT v. STATE 

            Appeal from the Iowa District Court for Clinton County, David H. Sivright, Judge.  AFFIRMED.  Considered by Sackett, C.J., and Eisenhauer and Doyle, JJ.  Opinion by Doyle, J.  (5 pages $2.50) 

  

            Albert Elliott appeals from the denial of his application for postconviction relief.  He contends his trial counsel was ineffective, alleging his counsel (1) offered otherwise inadmissible evidence of Elliott's criminal history during direct examination and (2) was under the influence of alcohol during trial.  OPINION HOLDS:  Because we conclude Elliott failed in his burden of proving prejudice, we affirm the district court's denial of his application for postconviction relief. 

  

  

No. 09-0153.   [9-801]   STATE v. HEIM 

            Appeal from the Iowa District Court for Humboldt County, Thomas J. Bice, Judge.  AFFIRMED.  Considered by Doyle, P.J., Mansfield, J., and Zimmer, S.J.  Opinion by Doyle, P.J.  Special concurrence by Mansfield, J. (10 pages $5.00) 

  

            Aaron Heim appeals following his conviction and sentence for domestic abuse assault, third offense, contending the district court erred in admitting hearsay statements under the excited utterance exception.  OPINION HOLDS:  Because substantially the same evidence is properly in the record through other testimony, we find no prejudicial error in the admission of hearsay statements and accordingly affirm Heim's conviction and sentence.  SPECIAL CONCURRENCE ASSERTS:  Unlike the majority, I cannot resolve this case on the basis of no prejudice.  Rather, I would affirm because the victim's statements were admissible under the "excited utterance" exception pursuant to Iowa Rule of Evidence 5.803(2). 

  

  

No. 09-0172.   [9-802]   GLENWOOD PARK v. CITY OF MARSHALLTOWN 

            Appeal from the Iowa District Court for Marshall County, William J. Pattinson, Judge.  AFFIRMED.  Considered by Doyle, P.J., Mansfield, J., and Zimmer, S.J.  Opinion by Doyle, P.J.  (4 pages $2.00) 

  

            Plaintiffs appeal from an order dismissing their appeal of a condemnation award.  OPINION HOLDS:  Because we agree that plaintiffs failed to serve their notice of appeal within the time allowed under Iowa Code section 6B.18(2), and they showed no good cause to warrant extension of the service deadline, we affirm the order of the district court dismissing their appeal.  We deny the City of Marshalltown's "Motions for Sanctions, Consolidate and Reserve Jurisdiction." 

  

  

No. 09-0181.   [9-803]   LEONARD v. WOLTMAN 

            Appeal from the Iowa District Court for Cherokee County, Frank B. Nelson, Judge.  AFFIRMED.  Considered by Doyle, P.J., Mansfield, J., and Huitink, S.J.  Opinion by Doyle, P.J.  (7 pages $3.50) 

  

            Stephen Leonard appeals from the district court order granting the defendants' motions to dismiss.  OPINION HOLDS:  We conclude the district court did not abuse its discretion in granting the defendants' motions to dismiss because the statute of limitations had run.  Additionally, we conclude Leonard's claim that he did not receive a full and fair hearing on his application for entry of default judgment is without merit.  Accordingly, we affirm the judgment of the district court. 

  

  

No. 09-1353.   [9-871]   IN RE J.A.D.-F. 

            Appeal from the Iowa District Court for Woodbury County, Brian L. Michaelson, Associate Juvenile Judge.  AFFIRMED.  Considered by Vogel, P.J., and Doyle and Mansfield, JJ.  Opinion by Doyle, J.  (12 pages $6.00) 

  

            A father appeals from the order terminating his parental rights.  OPINION HOLDS:  Because we find clear and convincing evidence supports termination of the father's parental rights under Iowa Code section 232.116(1)(l) (2009) and termination is in the child's best interests, we conclude the district court did not err in terminating the father's parental rights. 

  

  

No. 09-1354.   [9-879]   IN RE A.G.M. 

            Appeal from the Iowa District Court for Woodbury County, Brian Michaelson, Associate Juvenile Judge.  AFFIRMED.  Considered by Vogel, P.J., and Doyle and Mansfield, JJ.  Opinion by Doyle, J.  (12 pages $6.00) 

  

            A father appeals from the order terminating his parental rights.  OPINION HOLDS:  Upon our de novo review, we find the father failed to preserve his reasonable efforts issue for our review, clear and convincing evidence supports termination of the father's parental rights under Iowa Code section 232.116(1)(h) (2009), and termination is in the child's best interests.  We therefore conclude the district court did not err in terminating the father's parental rights. 

  

  

No. 08-0401.   [9-785]   STATE v. ATWOOD 

            Appeal from the Iowa District Court for Scott County, Hobart Darbyshire, Judge.  AFFIRMED.  Considered by Sackett, C.J., Vaitheswaran, J., and Miller, S.J.  Opinion by Sackett, C.J.  (4 pages $2.00) 

  

            Patricia Ann Atwood appeals her convictions following a jury trial of arson in the second degree in violation of Iowa Code section 712.3 (2005) and fraudulent insurance submission in violation of Iowa Code section 507E.3(2).  She contends the district court erred in not maintaining impartiality to the extent it impacted her right to a fair and impartial trial.  OPINION HOLDS:  Patricia's sole issue on appeal is that the district court was not impartial.  Patricia does not claim that this issue was raised at trial and the State contends that error was not preserved.  We agree with the State and affirm. 

  

 

No.  08-1148.   [9-527]   SMITH v. SMITH  

            Appeal from the Iowa District Court for Calhoun County, Joel E. Swanson, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Vaitheswaran, P.J., Mansfield, J., and Miller, S.J.  Opinion by Miller, S.J.  (13 pages $6.50) 

  

            Defendant Nile Smith appeals the district court's decision granting plaintiffs a permanent injunction and denying his counterclaims.  OPINION HOLSD:  I.  The district court did not err in determining that the plaintiffs, as landowners, had standing to pursue claims against the defendant oil and gas lessee for injunction and damages, trespass, breach of leases, failure of consideration for the leases, and the owner's inability to grant possessory rights to the lessee because of pre-existing farming leases.  II.  The district court did not err in holding that the plaintiffs were a real party in interest.  III.  The district court erred in determining that Article I, section 24 of the Iowa Constitution, as well as pre-existing farming leases, rendered void the plaintiffs' subsequent lease of the same real estate to another for oil and gas exploration and mining.  IV.  We affirm in part, reverse in part, and remand for consideration of unaddressed issues as necessary.    

  

  

No.  08-1799.   [9-543]   PENDER STATE BANK v. REMINGTON  

            Appeal from the Iowa District Court for Adair County, William H. Joy, Judge.  AFFIRMED AND REMANDED.  Heard by Vaitheswaran, P.J., Mansfield, J., and Miller, S.J.  Opinion by Miller, S.J.  (13 pages $6.50) 

  

            Harriett Remington appeals the district court's grant of summary judgment to Pender State Bank and John Koerselman on her counterclaims and third-party claims of fraudulent inducement and Iowa securities laws violations in the bank's mortgage foreclosure action against her.  OPINION HOLDS:  We find no error in the district court's determinations that there is no genuine issue of material fact precluding summary judgment on the counterclaims and third-party claims involved in this appeal.    

  

  

No.  09-0325.   [9-610]   SENECA WASTE SOLUTIONS, INC. v. SHEAFFER MANUFACTURING COL, LLC 

            Appeal from the Iowa District Court for Lee (North) County, Cynthia Danielson, Judge.  REVERSED AND REMANDED.  Heard by Eisenhauer, P.J., Potterfield, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (8 pages $4.00) 

  

Seneca Waste Solutions, Inc. (Seneca Waste) appeals from the district court order granting summary judgment in favor of the defendants on its breach of contract claim.  OPINION HOLDS:  Seneca Waste contends the district court erred in concluding the contract between the parties limited the amount it could be paid for its services to $170,000.00.  Because there is a genuine issue of material fact concerning the amount that Seneca Waste is entitled to under the contract, this case is not ripe for summary judgment.    

  

  

No.  08-1508.  [9-632]  ROTH v. IOWA DEPARTMENT OF TRANSPORTATION 

            Appeal from the Iowa District Court for Washington County, Michael R. Mullins, Judge.  AFFIRMED.  Heard by Eisenhauer, P.J., Potterfield, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (6 pages $3.00) 

  

Kenna Roth appeals from a district court ruling on judicial review affirming the Iowa Department of Transportation's order revoking her driver's license for one year. OPINION HOLDS:  The undisputed facts show Roth committed a "serious violation" under the rules promulgated by the IDOT.  The IDOT did not exceed the scope of authority granted by section 321.210(1) in defining moving violations that result in fatal accidents as "serious violations" of the motor vehicle laws.  The reasons given by the IDOT are a reasonable basis for determining Roth's license should be suspended for one year.  Because the IDOT's decision is not unreasonable, arbitrary, capricious, or an abuse of discretion, we affirm the one-year suspension of Roth's license. 

  

  

No.  08-1810.   [9-638]   WITTE v. SEIDEL  

            Appeal from the Iowa District Court for Butler County, Christopher C. Foy, Judge.  REVERSED AND REMANDED.  Heard by Eisenhauer, P.J., Potterfield, J., and Mahan, S.J.  Opinion by Eisenhauer, P.J.  (8 pages $4.00) 

  

Paige and Carter Seidel appeal, and Michael Witte cross-appeals, from the district court ruling confirming and quieting title of certain real estate to Witte.  The Seidels contend they acquired title to the real estate by estoppel.  They also contend they are entitled to the property because the deed contains deed back provisions.  Witte contends the court erred in finding he did not have an easement across the Seidels' adjoining property.  OPINON HOLDS:  Witte contends the court erred in making its findings addressing equitable estoppel because the Seidels did not plead the theory in its petition to quiet title.  Because we conclude this petition was sufficient to apprise Witte of the general nature of the action, the court was correct to address the issue and it is preserved for our review.  We conclude the Seidels have met their burden of establishing the elements of equitable estoppel by clear and convincing evidence.  We reverse the trial court's contrary conclusion and remand for entry of a judgment quieting title to the disputed property in the Seidels. 

  

  

No.  08-0937.   [9-787]   KEMP v. STATE  

            Appeal from the Iowa District Court for Polk County, Richard G. Blane II, Judge.  AFFIRMED.  Considered by Sackett, C.J., Vaitheswaran, J., and Miller, S.J.  Opinion by Sackett, C.J.  (6 pages $3.00) 

  

            Mark Kemp appeals from the denial of his application for postconviction relief, contending trial and appellate counsel were ineffective.  OPINION HOLDS:  Trial counsel was not ineffective (1) in not challenging the sufficiency of the evidence because there was sufficient evidence, and (2) in not requesting merger of the sentences for lesser-included offenses because none of the offenses were lesser-included offenses of the others.  Kemp's pro se claims are without merit. 

  

  

No.  09-0390.   [9-810]   STATE v. BROWNLEE  

            Appeal from the Iowa District Court for Lee (South) County, Mary Ann Brown, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Eisenhauer, J., and Mahan, S.J.  Opinion by Eisenhauer, J.  (5 pages $2.50) 

  

Christopher Brownlee argues his counsel was ineffective because he failed to object to the prosecutor's breach of the plea agreement at the sentencing hearing.  OPINION HOLDS:  The prosecutor's statements commended the plea agreement's sentence to the court and did not breach the plea agreement.  Brownlee has failed to prove ineffective assistance of counsel.     

  

  

No.  09-0441.   [9-812]   COLLIER v. SWEDE, L.L.C.  

            Appeal from the Iowa District Court for Pottawattamie County, Timothy O'Grady, Judge.  AFFIRMED.  Considered by Eisenhauer, P.J., Doyle, J., and Mahan, S.J.  Opinion by Eisenhauer, P.J.  (2 pages $1.00) 

  

            Michael Collier appeals the district court's dismissal of his nuisance claim.  OPINION HOLDS:  Because we agree with the district court's reasoning, its conclusions under the facts presented, and its application of the law, we affirm pursuant to Iowa Rule of Appellate Procedure 6.1203(a), (d).    

  

  

No.  09-0615.   [9-820]   ROBERTSON/STAR BUILDING v. COOHEY  

            Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.  AFFIRMED.  Considered by Eisenhauer, P.J., Potterfield, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (8 pages $4.00) 

  

Robertson/Star Building Systems and its insurer, Insurance Company of the State of Pennsylvania, appeal the district court's ruling on their petition for judicial review, which affirmed the workers' compensation commission's award of benefits to Jesse Coohey.  They contend the district court erred in concluding (1) Coohey's claim is not barred by the statute of limitations, (2) Coohey's treatment is causally related to his 1997 work injury, and (3) Coohey is entitled to attorney fees.  OPINION HOLDS:  A. Because there was no denial of liability filed, Coohey's claim for medical benefits was not subject to the three-year statute of limitations as set forth in Iowa Code section 85.26.  B. Expert witness evidence establishes the 1997 work injury was a substantial contributing factor to the August 2005 surgery.  Accordingly, we conclude substantial evidence supports the commissioner's finding Coohey's treatment is causally related to the work injury.  C. The commissioner's award of attorney fees for the petitioners' failure to admit a request for admission was not irrational, illogical, or wholly unjustifiable. 

  

  

No.  08-1846.   [9-839]   STATE v. JARAMILLO  

            Appeal from the Iowa District Court for Black Hawk County, Nathan Callahan, District Associate Judge.  AFFIRMED.  Considered by Eisenhauer, P.J., Potterfield, J., and Zimmer, S.J.  Opinion by Zimmer, S.J.  (7 pages $3.50)  

  

            A person in an apartment building heard the sounds of a fight and heard a woman yell, "Help, someone help me," so he called 911.  The officer who responded to the call heard yelling and screaming coming from an apartment.  As he approached the door he heard a woman scream, "Don't f***ing choke me again," and "Don't ever put your hands on me again."  The officer entered the apartment and saw Alejandro Jamarillo straddling Susan Butler's stomach area as she sat on the floor.  Butler had two scratches on her neck.  Butler and Jamarillo claimed another person, Daniel Meyer, had assaulted Butler.  They claimed the marks on Butler's neck were hickies.  Jamarillo also admitted, however, that Butler was speaking to him when she said, "Don't f***ing choke me again."  A jury found Jamarillo guilty of domestic abuse assault causing bodily injury.  He appeals his conviction.  OPINION HOLDS:  I.  Jamarillo contends there is not sufficient evidence in the record to show he assaulted Butler.  We find substantial evidence to support the jury's verdict that Jamarillo was the person who assaulted Butler in the circumstantial evidence presented by the police officers.  In considering the evidence, the jury could certainly have found Butler's testimony was not credible.  We also find the evidence is sufficient to show Butler suffered bodily injury.  II.  Jaramillo asserts the district court should have granted his motion for a new trial because the jury's verdict is contrary to the weight of the evidence.  We conclude the court did not abuse its discretion in finding the jury's verdict was not contrary to the weight of the evidence.  We affirm Jaramillo's conviction for domestic abuse assault causing bodily injury. 

  

  

No.  09-0467.   [9-860]   STATE v. MCCONNELEE  

            Appeal from the Iowa District Court for Black Hawk County, James D. Coil, Judge.  AFFIRMED.  Considered by Eisenhauer, P.J., Potterfield, J., and Zimmer, S.J.  Opinion by Eisenhauer, P.J.  (3 pages $1.50) 

  

Brandon Michael McConnelee appeals from his conviction for second-offense operating while intoxicated.  He contends the district court erred in denying his motion to suppress.  OPINION HOLDS:  We conclude Deputy Sheriff Harris had a reasonable suspicion that a violation of Iowa Code section 321.297 (2007) was occurring and therefore a stop of his McConnelee's vehicle was proper.  Accordingly, we affirm the district court order denying the motion to suppress. 

 

 

No.  09-1378.   [9-874]   IN RE S.R.W. 

            Appeal from the Iowa District Court for Johnson County, Stephen Gerard, III, District Associate Judge.  AFFIRMED.  Considered by Sackett, C.J., Vaitheswaran and Danilson, JJ.  Opinion by Sackett, C.J.  (8 pages $4.00) 

  

            Rose, the mother of Sylvia, appeals from the order terminating her parental rights.  She contends the Department of Human Services "did not provide timely rehabilitative services" and did not make reasonable efforts to reunify mother and child.  OPINION HOLDS:  Neither the legislature nor the courts have defined the term "rehabilitative services," used in Iowa Code section 232.67 (2007), but we believe the services fall within the "reasonable efforts" set forth in section 232.102.  From our review of the record we find clear and convincing evidence that the department made reasonable efforts to reunify the family, including rehabilitative services for the mother.  Although Rose's second issue is phrased as a challenge to the department's "reasonable efforts" toward reunification, the argument reveals the claim is that clear and convincing evidence does not support a finding that reasonable efforts were made, as required in the statutory grounds for termination.  She argues the sections cited by the court, 232.116(1)(h)(4) and 232.116(1)(k)(1) (2009), "both implicate the requirement that the Department make reasonable effort towards reunification under [section] 232.102."  At the time of the termination hearing, she was not in a position to have Sylvia returned to her care as provided in section 232.102 despite the department's efforts.  Clear and convincing evidence supports termination of Rose's parental rights under section 232.116(1)(h).    

  

  

No.  09-1352.   [9-877]   IN RE N.G.  

            Appeal from the Iowa District Court for Audubon County, Susan Larson, District Associate Judge.  AFFIRMED.  Considered by Sackett, C.J., Eisenhauer and Potterfield, JJ.  Opinion by Eisenhauer, J.  (4 pages $2.00) 

  

            A mother appeals the termination of her parental rights to her child.  The sole issue is mother's claim the juvenile court abused its discretion in denying her motion to continue the termination hearing.  OPINION HOLDS:  Because the denial of the motion to continue was not unreasonable under the circumstances and did not result in injustice to the mother, we affirm. 

  

  

No.  09-1428.   [9-884]   IN RE A.H.  

            Appeal from the Iowa District Court for Jones County, Casey D. Jones, District Associate Judge.  AFFIRMED.  Considered by Eisenhauer, P.J., Potterfield and Danilson, JJ.  Opinion by Eisenhauer, P.J.  (3 pages $1.50) 

 

A mother appeals the termination of her parental rights to her child.  OPINION HOLDS:  There is clear and convincing evidence the child cannot be returned to the mother's care at the present time.  We also find termination is in the child's best interest.    

  

  

No. 08-1788.   [9-739]   LYNCH v. LENNON 

            Appeal from the Iowa District Court for Webster County, Ronald H. Schechtman, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Vogel, P.J., Potterfield, J., and Miller, S.J.  Opinion by Potterfield, J.  (8 pages $4.00) 

  

            Britt and Christine Lennon appeal the district court's ruling finding the Lynches had established a boundary by acquiescence and declining to award damages to the Lennons from the Pierces, who sold them the property.  OPINION HOLDS: I. The district court properly found the Lynches had established their claim of acquiescence to the fence as the boundary line.  II. Because the Lennons' purchase price was not based on the correct legal description in the deed, but rather on the mutually understood fence-line boundary, they are not entitled to recovery for the loss of the land.  The Lennons are entitled to damages in the amount of the attorney fees and expenses incurred in defending this action.    

  

  

No. 08-1788.   [9-739]   LYNCH v. LENNON 

            Appeal from the Iowa District Court for Webster County, Ronald H. Schechtman, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Vogel, P.J., Potterfield, J., and Miller, S.J.  Opinion by Potterfield, J.  (8 pages $4.00) 

  

            Britt and Christine Lennon appeal the district court's ruling finding the Lynches had established a boundary by acquiescence and declining to award damages to the Lennons from the Pierces, who sold them the property.  OPINION HOLDS: I. The district court properly found the Lynches had established their claim of acquiescence to the fence as the boundary line.  II. Because the Lennons' purchase price was not based on the correct legal description in the deed, but rather on the mutually understood fence-line boundary, they are not entitled to recovery for the loss of the land.  The Lennons are entitled to damages in the amount of the attorney fees and expenses incurred in defending this action.    

  

  

No. 09-0460.   [9-814]   STATE v. BOHRN 

            Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer (guilty plea) and Gary E. Wenell (sentencing), Judges.  AFFIRMED.  Considered by Potterfield, P.J., Danilson, J., and Mahan, S.J.  Opinion by Potterfield, P.J.  (4 pages $2.00) 

  

            Douglas Bohrn appeals from the judgment and sentence imposed following his guilty plea to two counts of forgery.  OPINION HOLDS: The record before us is inadequate to address Bohrn's claim of ineffective assistance on direct appeal.  We therefore preserve the issue for a possible postconviction proceeding.    

  

  

No. 08-1195.   [9-582]   CAR WASH CONSULTANTS, INC. v. BELANGER, INC. 

            Appeal from the Iowa District Court for Linn County, Patrick R. Grady, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Vaitheswaran, P.J., Mansfield, J., and Miller, S.J.  Opinion by Mansfield, J.  (16 pages $8.00) 

  

            Belanger, Inc., a manufacturer of automated car wash equipment, appeals the judgment entered in favor of Car Wash Consultants, Inc. (CWC), a distributor of that equipment, on a jury verdict.  CWC claimed it suffered damages including the loss of a customer because of a defect in an automated car wash unit supplied to it by Belanger.  Belanger argues the district court should have granted its motions for directed verdict on liability and damages, or granted a new trial.  OPINION HOLDS:  I.  We find the implied warranty of merchantability may extend from Belanger to CWC, even though CWC was a reseller of the equipment.  II.  CWC presented sufficient evidence that Belanger breached the implied warranty of merchantability.  III.  We cannot conclude, as a matter of law, that Belanger excluded the implied warranty of merchantability as to CWC by a disclaimer.  IV.  We find substantial evidence supports the award of damages with respect to the location where the equipment was to be used.  However, we find the lost profit damages involving a potential follow-up sale at a different location were too speculative and remote and, therefore, should not have been submitted to the jury.   

  

  

No. 08-1315.   [9-680]   CITY OF COUNCIL BLUFFS v. HARDER 

            Appeal from the Iowa District Court for Pottawattamie County, James M. Richardson, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mansfield, J., and Zimmer, S.J.  Opinion by Mansfield, J.  Dissent by Vaitheswaran, P.J.  (9 pages $4.50) 

  

            Anita Harder, the owner of a house in Council Bluffs, appeals the district court's decision that the house was abandoned under Iowa Code section 657A.10A (2007) and that title should be transferred to the city.  OPINION HOLDS:  The district court properly held that the house had been abandoned where it was rendered uninhabitable by fire three and a half years ago, had been boarded up since then, had been broken into repeatedly, and was the subject of complaints from neighbors.  Although Harder contends that she has been unable to restore the house because of a dispute with her insurance company, and that she has been meeting her ongoing financial obligations relating to the house, we believe that various factors set forth in section 657A.10A(3) support the district court's finding of abandonment.  DISSENT ASSERTS:  I would conclude Harder did not abandon the house because (1) Harder continued to pay real estate taxes, mortgage payments, and insurance; (2) Harder continued to maintain the property; (3) there was no evidence of the presence of vermin, accumulated debris, or uncut vegetation; (4) the deteriorating condition of the home was a factor beyond Harder's control because she did not have the benefit of insurance proceeds; and (5) Harder had no intent to abandon the home. 

  

  

No. 09-0249.   [9-805]   STATE v. MILLER 

            Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor, District Associate Judge.  SENTENCE AFFIRMED IN PART AND VACATED IN PART.  Considered by Vogel, P.J., Mansfield, J., and Nelson, S.J.  Opinion by Mansfield, J.  (5 pages $2.50) 

  

            Christopher Lance Miller appeals the sentence imposed on his conviction of assault causing bodily injury in violation of Iowa Code sections 708.1 and 708.2 (2007).  Miller contends the district court erred in sentencing him to participate in a batterer's education program, and in imposing the maximum term of incarceration of twelve months.  OPINION HOLDS:  I.  The district court lacked authority to sentence Miller to a batterer's education program on a conviction of assault causing bodily injury.  Therefore, we vacate this portion of Miller's sentence.  II.  The district court did not abuse its discretion in sentencing Miller to the maximum period of incarceration of twelve months.  Accordingly, we otherwise affirm Miller's sentence.  

  

  

No. 09-0264.   [9-806]   STATE v. HERNANDEZ DUQUE 

            Appeal from the Iowa District Court for Dubuque County, Randal J. Nigg, District Associate Judge.  AFFIRMED.  Considered by Vogel, P.J., Mansfield, J., and Nelson, S.J.  Opinion by Mansfield, J.  (4 pages $2.00) 

  

            Delia Judith Hernandez Duque appeals her conviction resulting from her written guilty plea to theft in the third degree.  She contends her counsel and the court erred by proceeding to judgment and sentence without a Spanish interpreter or a certification from an interpreter to ensure that she had knowingly and voluntarily pled guilty.  OPINION HOLDS:  The record is not adequate to address the claim on direct appeal.  Therefore, the conviction and sentence are affirmed, and the claim is preserved for possible postconviction relief proceedings. 

  

  

No. 09-0275.   [9-807]   GUNTHER v. STATE 

            Appeal from the Iowa District Court for Pottawattamie County, J.C. Irvin, Judge.  AFFIRMED.  Considered by Vogel, P.J., Mansfield, J., and Nelson, S.J.  Opinion by Mansfield, J.  (14 pages $7.00) 

  

            Michael Gunther, who was previously convicted of second-degree murder, appeals the denial of his application for postconviction relief.  Gunther asserts his former appellate counsel was ineffective for failing to raise a claim of juror misconduct based upon an alleged assault by one juror upon another during deliberations.  Gunther also contends his former trial counsel was ineffective for failing to object to certain hearsay testimony at trial.  OPINION HOLDS:  I.  Gunther's appellate counsel was not ineffective for failing to argue the juror misconduct claim on direct appeal since he would not have prevailed even if the claim had been raised.  To impeach a verdict based upon juror misconduct, Gunther was required to show the alleged misconduct was calculated to, and with reasonable probability did, influence the verdict.  Here, the trial court found that the "assault" was in fact a demonstration of the difference between "willful" and "accidental," and did not affect the verdict, as evidenced by the fact the jury continued to deliberate for over twenty-four hours thereafter.  Those determinations were not an abuse of discretion.  II.  Gunther's trial counsel was not ineffective for failing to object to hearsay testimony because it was a strategic decision and there is no reasonable likelihood it affected the outcome of the trial.  Therefore, we affirm the denial of Gunther's application for postconviction relief. 

  

  

No. 09-0090.   [9-849]   COWAN v. LANCASTER 

            Appeal from the Iowa District Court for Montgomery County, Timothy O'Grady, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Considered by Vogel, P.J., and Doyle and Mansfield, JJ.  Opinion by Mansfield, J.  (5 pages $2.50) 

  

            This is a paternity case involving a child, Kayley, whose parents are Heather Lancaster and Darrell Cowan, Jr.  Although at the time of trial, Heather had married and no longer went by the name of "Lancaster," the district court found Kayley should bear the hyphenated surname of "Lancaster-Cowan."  Darrell appeals this portion of the paternity decree.  OPINION HOLDS:  We believe that considerations of convenience and avoidance of confusion favor "Cowan" over "Lancaster-Cowan," since "Lancaster" is no longer the last name of either parent.  Thus, we affirm the district court's paternity order, except with respect to Kayley's surname, which we find should be "Cowan" rather than "Lancaster-Cowan." 

  

  

No. 09-1351.   [9-873]   IN RE A.H. 

            Appeal from the Iowa District Court for Polk County, Carol S. Egly, District Associate Judge.  AFFIRMED.  Considered by Vogel, P.J., and Doyle and Mansfield, JJ.  Opinion by Mansfield, J.  (7 pages $3.50) 

  

            A father appeals from a juvenile court permanency order decreeing a planned permanent living arrangement for his two children, aged twelve and eleven.  He argues that the State failed to prove by convincing evidence that the children could not be returned to his care as required under Iowa Code section 232.104(3)(c) (2009).  OPINION HOLDS:  Although the father is generally able to provide for his children's physical needs, significant concerns remain as to his ability to care for their mental health and emotional needs.  Specifically, the father has not gained insight into how prior physical abuse perpetrated on the children by their stepmother has affected his children.  The children do not want to live with their father but do want to maintain a visitation relationship with him, thus confirming the appropriateness of the permanency order.  We affirm. 

  

  

No. 09-0461.   [9-815]   STATE v. GORDON 

            Appeal from the Iowa District Court for Black Hawk County, Thomas N. Bower, Judge.  SENTENCE VACATED AND REMANDED FOR FURTHER PROCEEDINGS.  Considered by Sackett, C.J., Potterfield, J., and Mahan, S.J.  Opinion by Potterfield, J.  (3 pages $1.50) 

  

            Xavier Gordon appeals contending his guilty plea lacked a factual basis.  OPINION HOLDS: The record does not establish that Gordon was committed to the community facility "by reason of the [felony] conviction" as required by Iowa Code section 719.4(1).  We therefore vacate the sentence and remand for further proceedings to give the State an opportunity to establish a factual basis.    

  

  

No. 09-0587.   [9-818]   STATE v. TANGARA 

            Appeal from the Iowa District Court for Black Hawk County, Jeffrey L. Harris, Judge (motion to suppress) and Joseph Moothart, District Associate Judge (verdict and sentencing).  REVERSED, CONVICTION AND SENTENCE VACATED, AND REMANDED.  Considered by Vogel, P.J., Potterfield, J., and Mahan, S.J.  Opinion by Potterfield, J.  (9 pages $4.50) 

  

            Abdoulaye Tangara appeals from judgment and sentence imposed upon his conviction of operating while intoxicated, first offense, contending the district court erred in denying his motion to suppress.  OPINION HOLDS: I. Tangara's requests to call a friend triggered his right under section 804.20, and the officer should have explained the right and offered him an opportunity to make an authorized phone call.  The district court erred in denying Tangara's motion to suppress.  II. The officer did not have reasonable suspicion to stop Tangara's vehicle.  Thus, all evidence flowing from the stop is inadmissible.  We therefore reverse the district court's suppression ruling, vacate Tangara's conviction and sentence, and remand for further proceedings consistent with our opinion. 

  

  

No. 09-1169.   [9-824]   IN RE T.C. 

            Appeal from the Iowa District Court for Wayne County, Sherman Phipps, Judge.  REVERSED.  Considered by Vaitheswaran, P.J., Eisenhauer and Potterfield, JJ.  Opinion by Potterfield, J.  (7 pages $3.50) 

  

            Judy appeals the termination of her parental rights to her son, Timothy, arguing the juvenile court erred in: (1) finding the State established by clear and convincing evidence that Timothy could not be returned to Judy's care; and (2) finding a termination of Judy's rights was in Timothy's best interests.  OPINION HOLDS:  The State has not met its burden of proving by clear and convincing evidence that Timothy cannot be returned to Judy at this time.    

  

  

No. 09-1348.   [9-828]   IN RE M.L. 

            Appeal from the Iowa District Court for Cerro Gordo County, Peter B. Newell, District Associate Judge.  AFFIRMED ON CONDITION AND REMANDED.  Considered by Vogel, P.J., Eisenhauer and Potterfield, JJ.  Opinion by Potterfield, J.  (10 pages $5.00) 

  

            A mother appeals the termination of her parental rights to her son.  She contends the State did not make reasonable reunification efforts and did not comply with the tribal notice provisions of the Indian Child Welfare Act.  OPINION HOLDS: I. Upon our de novo review we agree with the district court that reasonable reunification efforts have been made.  II. The State acknowledges that D.J. advised DHS that her father belonged to a Cherokee Indian tribe and that no notice has been sent.  The tribal notice provisions of the Iowa ICWA require the juvenile court to notify the proper Indian tribe whenever it has reason to know that an Indian child may be involved in an involuntary termination.  We conditionally affirm and remand for proper notice.    

  

  

No. 09-0552.   [9-865]   BOHLEN v. PECK 

            Appeal from the Iowa District Court for Washington County, Michael R. Mullins, Judge.  AFFIRMED.  Considered by Eisenhauer, P.J., Potterfield, J., and Zimmer, S.J.  Opinion by Per Curiam  (4 pages $2.00) 

  

            Larry Bohlen appeals from the district court's ruling awarding physical care of his child to Emily Peck and ordering him to pay part of Emily's attorney fees.  Emily cross-appeals seeking appellate attorney fees.  OPINION HOLDS: We find the district court's custody ruling was in the child's best interests and therefore affirm the ruling.  The district court did not abuse its discretion in ordering Larry to pay $7500 of Emily's trial attorney fees.  We award Emily $1000 in appellate attorney fees. 

  

  

No. 09-1400.   [9-883]   IN RE D.G. 

            Appeal from the Iowa District Court for Polk County, Joe E. Smith, District Associate Judge.  AFFIRMED.  Considered by Eisenhauer, P.J., Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (8 pages $4.00) 

  

            A father appeals the termination of his parental rights to his son, contending the statutory requirements for termination have not been met.  OPINION HOLDS:  Because the statutory requirements were met and termination is in the child's best interests, we affirm the termination of parental rights.  

  

  

No. 08-1648.   [9-792]   IN RE MARRIAGE OF PATZNER AND CHRISTOPHERSON 

            Appeal from the Iowa District Court for Clayton County, Richard D. Stochl, Judge.  AFFIRMED AS MODIFIED.  Considered by Sackett, C.J., Danilson, J., and Miller, S.J.  Opinion by Danilson, J.  (5 pages $2.50) 

  

            Sara Christopherson appeals the district court's finding that her former husband, Randall Patzner, was not in contempt of court for failing to follow the terms of the parties' dissolution decree.  Sara further contends the ordered distribution of proceeds from the sale of the parties' real estate is inequitable and should be modified.  OPINION HOLDS:  I.  We find substantial evidence supports the district court's decision that Randall was not in contempt of court.  II.  With regard to the division of the sale proceeds, we find the lack of interest and the term length are inequitable to Sara.  We conclude the sum of $18,000 should be paid to Sara within two years of the entry date of this opinion as well as immediately draw the statutory interest rate for judgments as authorized by Iowa Code section 535.2 (2007).  Aside from that one exception, the district court's decision was fair and equitable.  We affirm as modified. 

  

  

No. 08-1812.   [9-795]   LOSEY v. STATE 

            Appeal from the Iowa District Court for Dubuque County, Bradley J. Harris, Judge.  AFFIRMED.  Considered by Sackett, C.J., Danilson, J., and Huitink, S.J.  Opinion by Danilson, J.  (10 pages $5.00) 

  

            James Losey appeals the district court decision denying his application for postconviction relief.  He alleges he received ineffective assistance of trial and postconviction counsels.  OPINION HOLDS:  I.  We find the district court sufficiently addressed every issue Losey now raises regarding ineffective assistance of trial counsel and will not further address the claims on appeal.  II.  We further reject Losey's pro se claim that his postconviction counsel was ineffective.  We affirm. 

  

  

No. 08-1843.   [9-838]   STATE v. McCULLUM 

            Appeal from the Iowa District Court for Dubuque County, Lawrence H. Fautsch, Judge.  AFFIRMED.  Considered by Sackett, C.J., and Vaitheswaran and Danilson, JJ.  Opinion by Danilson, J.  (2 pages $1.00) 

  

            Mario McCullum appeals following conviction and sentence for robbery in the first degree.  He contends the district court erred in denying his motion to suppress the clothing lineup because the identification was unduly suggestive and violated his due process rights.  OPINION HOLDS:  We find no error in the district court's decision.  We affirm. 

  

  

No. 09-0180.   [9-850]   ROSS v. STATE 

            Appeal from the Iowa District Court for Polk County, D.J. Stovall, Judge.  AFFIRMED.  Considered by Sackett, C.J., and Vaitheswaran and Danilson, JJ.  Opinion by Danilson, J.  (10 pages $5.00) 

  

            Charles Ross III appeals the district court decision denying his application for postconviction relief.  He alleges he received ineffective assistance of both trial and postconviction counsel, and argues the sentence imposed by the trial court was improper.  OPINION HOLDS:  I.  We conclude Ross is unable to show sufficient evidence to support a defense of justification.  Because the defense was unavailable to Ross, his trial counsel did not breach an essential duty by failing to explain it to him.  II.  We further reject Ross's claim that his postconviction counsel was ineffective for failing to present trial counsel as a witness to testify with regard to the defense of justification.  Postconviction counsel's alleged failure was not sufficient to prejudice Ross's case.  III.  Ross's claim with regard to the trial court's sentencing error has already been decided on direct appeal, and we therefore decline to address it again now.  We affirm. 

  

  

No. 09-0550.   [9-864]   MARRIAGE OF KETELSEN 

            Appeal from the Iowa District Court for Cedar County, C.H. Pelton, Judge.  AFFIRMED.  Considered by Sackett, C.J., and Vaitheswaran and Danilson, JJ.  Opinion by Danilson, J.  (3 pages $1.50) 

  

            Lydia Wulf appeals the district court's finding that her former husband, Brian Ketelsen, was not in contempt of court for his failure to make spousal support and other court-ordered payments to Lydia pursuant to the terms of the parties' dissolution decree.  OPINION HOLDS:  We find substantial evidence supports the district court's decision that Brian was not in contempt of court.  We affirm. 

  

  

No. 09-1355.   [9-872]   IN RE K.S. 

            Appeal from the Iowa District Court for Scott County, Mary Howes, Judge.  AFFIRMED.  Considered by Sackett, C.J., and Vaitheswaran and Danilson, JJ.  Opinion by Danilson, J.  (6 pages $3.00) 

  

            A mother appeals the juvenile court's order terminating her parental rights to her thirteen-year-old daughter.  OPINION HOLDS:  I.  We find the mother's claim with regard to the court's admission of hearsay evidence to be without merit.  II.  We conclude termination of the mother's parental rights is in the best interests of the child.  The record clearly supports the finding that the mother is unable to provide a safe environment for K.S., and returning K.S. to her home is not an option.  We affirm. 

  

  

No. 09-1431.   [9-881]   IN RE G.M.F. 

            Appeal from the Iowa District Court for Woodbury County, Mary Jane Sokolovske, Judge.  AFFIRMED.  Considered by Sackett, C.J., and Vaitheswaran and Danilson, JJ.  Opinion by Danilson, J.  (6 pages $3.00) 

  

            A mother appeals the juvenile court's order terminating her parental rights to her nine-month-old daughter.  OPINION HOLDS:  I.  The mother fails to indicate that she requested or otherwise challenged the adequacy of services prior to the termination hearing.  We conclude this issue has been waived.  II.  We conclude termination of the mother's parental rights is in the best interests of the child.  The record clearly supports the finding that the mother is unable to provide a safe environment for the child, and returning the child to her home is not an option.  We affirm. 

  

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