SUMMARY OF DECISIONS, IOWA COURT OF APPEALS
November 13, 2008
Pursuant to Iowa Supreme Court Rule 6.14(5), an unpublished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unpublished opinions shall not constitute controlling legal authority.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.
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No. 07-1886. [8-476]
HAASE v. LOCAL 1142
Appeal from the Iowa District Court for Woodbury
County, Jeffrey A. Neary, Judge. AFFIRMED. Heard by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ. Opinion by Vaitheswaran, J. (6 pages $3.00)
Plaintiffs
appeal the district court's rulings finding that federal law preempted their
contract claims, their contracts were void and unenforceable, and in
apportioning attorney fees. OPINION HOLDS: We conclude that the district court did not
err in determining that plaintiffs' claims were preempted by federal law.
No. 07-0526. [8-700]
PLUNKETT v. PLUNKETT
Appeal from the Iowa District Court for Johnson
County, Amanda Potterfield, Judge. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Considered by Mahan, P.J., and Vaithesawran
and Doyle, JJ. Potterfield, J. takes no
part. Opinion by Vaitheswaran, J. (9 pages $4.50)
Kimberly
Aus appeals a district court order modifying Paul Plunkett's child support
obligation. OPINION HOLDS: A. 1. The district court did not vary from the
child support guidelines. 2. Based
on the evidence that Paul does not pay state income tax, we reverse the
child-support calculation and remand for re-calculation of Paul's obligation
without the deduction for state income tax liability. 3. We reverse the denial of Kimberly's
request for a qualified additional dependent deduction and remand for a
recalculation of her net monthly income with that deduction and a recalculation
of Paul's child-support obligation. 4. The
district court properly imputed to Kimberly an annual income of
$30,000.00. 5. We strike the portion of
the decree that provides for a reduction in Paul's child support in the event
he no longer receives his housing allowance.
B. The court did not abuse its discretion in determining the
date in which the modification was made effective. C. Because Kimberly did not receive a child
support payment for April 2006, she is entitled to judgment in her favor in the
amount of $577.04 plus interest. D. We
order Paul to pay $1000.00 towards Kimberly's appellate attorney fees.
No. 07-1203. [8-813]
STATE v. TATE
Appeal from the Iowa District Court for Polk County,
Karen A. Romano, Judge. CONVICTION AFFIRMED, SENTENCE VACATED IN
PART AND REMANDED FOR RESENTENCING.
Considered by Huitink, P.J., and Vaitheswaran and Potterfield, JJ. Opinion by Vaitheswaran, J. (8 pages $4.00)
Defendant
appeals his conviction, contending (1) his trial attorney was ineffective in
failing to seek admission of a co-defendant's statements "under the hearsay
exception for statements against interest" and (2) the district court abused
its discretion in sentencing him. OPINION HOLDS: Trial counsel did not breach an essential duty to the
defendant by failing to argue the applicability of a hearsay exception when the
argument would have been meritless, but the district court did abuse its
discretion in failing to specify whether the defendant's sentence would run
consecutively or concurrently with his sentence for violating parole.
No. 08-1221. [8-902]
IN RE Z.B.-D.
Appeal from the Iowa District Court for Linn County,
Barbara H. Liesveld, District Associate Judge. AFFIRMED. Considered by Huitink, P.J., and
Vaitheswaran and Doyle, JJ. Opinion by
Vaitheswaran, J. (7 pages $3.50)
A mother
and father appeal the termination of their parental rights to their children
based on a partial loss of the trial transcript, and they also contend that
clear and convincing evidence does not support the grounds for termination
cited by the district court. Finally,
the mother argues that the Department of Human Services did not make reasonable
efforts to reunite her with her children.
OPINION HOLDS: The partial loss of transcript was cured by
adherence to Iowa Rule of Appellate Procedure 6.10(3), clear and convincing
evidence did support the grounds for termination cited by the district court,
and the Department of Human Services did make reasonable efforts to reunite the
mother with her children.
No. 07-1243. [8-760]
STATE v. GILBERT
Appeal from the Iowa District Court
for Dallas County, John D. Lloyd, Judge. AFFIRMED. Considered by Miller, P.J., and Potterfield, J., and Robinson,
S.J. Opinion by Robinson, S.J. (7 pages $3.50)
Members of
the Dallas County Sheriff's Department stopped a vehicle on Interstate 80 on
March 15, 2006, and found packages of money hidden inside the car. Photographs of the money were taken that day
at an Iowa Department of Transportation (DOT) garage, and then again the next
day at the sheriff's department. The
photographs showed one package of money was missing. The sheriff, Brian Gilbert, had transported the packages of money
from the DOT garage to the sheriff's department. Once the matter was under investigation, Gilbert stated he had
stopped at his house after leaving the DOT garage and before arriving at the
sheriff's department with the money.
Gilbert was convicted of first-degree theft. He appeals. OPINION HOLDS: We conclude there is sufficient evidence in
the record to support the jury's verdict.
The packages of money had been placed in bags in the backseat of the
vehicle driven by Gilbert, but when he arrived at the sheriff's department the
bags were in the front seat. At the DOT
garage, a wallet had been placed on top of the money inside one of the bags,
but was later found underneath the money.
Furthermore, while the money was being counted, Gilbert had possession
of the packaging for the missing money.
No. 06-2074. [8-754]
BRINSON v. SPEE DEE DELIVERY
Appeal from the Iowa District Court
for Polk County, Don Nickerson, Judge. AFFIRMED. Considered by Mahan, P.J., and Vaitheswaran, J., and Schechtman,
S.J. Opinion by Schechtman, S.J. (8 pages $4.00)
The
decision of a deputy workers' compensation commissioner provided, "Defendants
pay claimant outstanding medical costs related to services claimant received as
a result of her injury and in the total amount of . . . $26,794.56." A later nunc pro tunc order changed the
award to provide "Defendants pay claimant's outstanding medical costs . . .
." On judicial review, the district
court affirmed the nunc pro tunc order, and claimant appeals. OPINION
HOLDS: I. Claimant asserts the employer has a duty to pay the entire
$26,794.56 to her. The nunc pro tunc
order clarified the deputy's opinion, and removed any doubt as to how
claimant's medical bills should be paid.
The nunc pro tunc order was appropriate under these circumstances. II. It is clear that the claimant did not offer
any evidence of payment directly by her to the medical providers, and she is
not entitled to any judgment, payment or reimbursement for those medical bills
allowed by the deputy. III.
The contention that there was an alleged agreement between the parties,
after the deputy's decision, to pay the full amount to her, is without
merit. We affirm the decision of the
district court.
No.
07-1119. [8-425] TRUMM v. WESTPHAL
Appeal from the Iowa District Court
for Jones County, Nancy A. Baumgartner, Judge.
AFFIRMED. Considered by Hutink, P.J., and Vogel and
Eisenhauer, JJ. Opinion by Eisenhauer,
J. (12 pages $6.00)
Arnita Westphal appeals from a jury trial award of
damages in favor of Joseph and Sarah Trumm on their breach-of-contract
claim. She argues: (1) the district
court erred in allowing evidence of an oral lease agreement in violation of the
statute of frauds; (2) the jury's finding that an oral lease existed was not
supported by clear and convincing evidence; (3) the district court erred in
allowing testimony of the Trumms' lost revenue; (4) the district court erred in
denying her motion for a new trial; and (5) grid sampling and fertilizer
damages awarded to the Trumms were unsupported by the evidence. OPINION
HOLDS: I. Because Westphal failed to object to the testimony regarding the
existence of an oral contract, she has not preserved this issue for
appeal. II. The jury's finding a
five-year oral lease existed was supported by clear and convincing
evidence. III. The district court did
not abuse its discretion in allowing evidence regarding the Trumms' lost
revenue. IV. We find that the
district court was correct in denying Westphal's motion for a new trial. V. The jury's award of expenses for grid
sampling, fertilizer, minerals, and lime was supported by the record.
No.
07-1383. [8-438] KOSS v. IOWA CHICAGO & EASTERN RAILROAD
Appeal from the Iowa District Court
for Scott County, James E. Kelley, Judge.
AFFIRMED. Heard by Sackett, C.J., and Eisenhauer and
Doyle, JJ. Opinion by Eisenhauer,
J. (15 pages $7.50)
Donald Koss appeals from the district court's denial
of his motion for new trial following a jury verdict in favor of Iowa, Chicago
& Eastern Railroad Corporation on his negligence and strict liability
claims. He contends new trial is
warranted on the basis of (1) newly discovered evidence, (2) erroneous
admission and exclusion of evidence, (3) error in the jury instructions, and
(4) the verdict not being supported by the evidence. OPINION HOLDS: I. The
district court did not abuse its discretion in denying Koss's motion for new
trial on the grounds of the alleged newly discovered evidence. II.
The court did not abuse its discretion in admitting into evidence documents
produced after the discovery deadlines and certain business records. Nor did it abuse its discretion in excluding
certain witness testimony or evidence of a federal regulation. III. The
district court properly instructed the jury.
IV. Substantial evidence
supports the verdict.
No.
07-1707. [8-466] STATE v. ORTIZ
Appeal from the Iowa District Court
for Woodbury County, Gary E. Wenell, Judge.
REVERSED AND REMANDED. Heard by Vogel, P.J., and Mahan and Miller,
JJ. Opinion by Miller, J. (12 pages $6.00)
On discretionary review the State
contends that the district court erred in suppressing statements made by the
defendant Ortiz during an interview by police officers because (1) good cause
did not exist for Ortiz's untimely filing of his motion to suppress, (2) Ortiz
was not in custody at the time of his interview by police officers, (3) Ortiz
knowingly, voluntarily, and intelligently waived his Miranda rights, and (4) Ortiz's statements were made
voluntarily. OPINION HOLDS: We assume,
without so deciding, that (1) good cause existed for Ortiz's more than
ten-month delay in filing his motion to suppress, and (2) Ortiz was in custody
at the time of his interview by police officers. Upon our de novo review we conclude that (1) Ortiz knowingly,
voluntarily, and intelligently waived his Miranda
rights, and (2) Ortiz's inculpatory statements were voluntarily made. We therefore reverse the district court's
suppression order and remand the case for further proceedings not inconsistent
with our opinion.
No.
08-0348. [8-684] STATE OF IOWA, EX REL. DENGER v. DENGER
Appeal from the Iowa District Court
for Jackson County, Charles H. Pelton, Judge.
AFFIRMED. Considered by Sackett, C.J., and Miller and
Potterfield, JJ. Opinion by Miller,
J. (12 pages $6.00)
This case began as an administrative
action to establish Jacob Denger's obligation to provide support for his child,
Jaden. The child's mother contested the
child support recovery unit's calculations, and the matter was certified to the
district court pursuant to Iowa Code section 252C.4(1) (2007). Jacob appeals the resulting district court
order, claiming the court erred in (1) calculating his child support
obligation, because it should have used his actual earnings rather than his
earning capacity to determine his support obligation; (2) ordering that he pay
accrued support, because the court did not have authority to do so; and (3)
establishing his medical support obligation, because the court overreached its
statutory authority by requiring him to purchase health insurance at least
equivalent to the basic Blue Cross-Blue Shield plan. OPINION HOLDS: I.
The district court did not err in using Jacob's earning capacity to
determine his child support obligation.
II. Section 252C.4(4) provides the court the authority to order
accrued support. III. The court acted within
its statutory authority in ordering Jacob to purchase the medical insurance for
Jaden.
No.
08-0472. [8-730] IN RE MARRIAGE OF RANSOM
Appeal from the Iowa District Court
for Wapello County, Joel D. Yates, Judge.
AFFIRMED AS MODIFIED AND REMANDED. Considered by Sackett, C.J., and Miller and
Potterfield, JJ. Opinion by Miller,
J. (14 pages $7.00)
Heather Ransom appeals the physical
care provisions of the district court's decree dissolving her marriage to
Robert Ransom. She claims the court
erred in granting Robert's request for joint physical care of the parties'
child instead of placing responsibility for her physical care with
Heather. OPINION HOLDS: Three of the
four Hansen factors weigh heavily
against ordering joint physical care. We conclude that joint physical care is not in the child's best
interest. It is in the child's best
interest that the responsibility for her physical care be placed with Heather. We remand the case to the district court to
enter an order placing physical care of the child with Heather and to determine
an appropriate visitation schedule and amount of child support.
No.
08-0546. [8-731] IN RE MARRIAGE OF GARMAN
Appeal from the Iowa District Court
for Mills County, J.C. Irvin, Judge. AFFIRMED AS MODIFIED. Considered by Sackett, C.J., and Miller and
Potterfield, JJ. Opinion by Miller,
J. (8 pages $4.00)
Paul Garman appeals the alimony and
property division provisions of the decree dissolving his marriage to Debra
Garman. OPINION HOLDS: We modify
the trial court's decree by reducing Paul's alimony obligation from $1000 per
month to $500 per month, affirm the trial court's property division, and award
Debra $500 in appellate attorney fees.
No.
08-0233. [8-783] STATE v. GYLES
Appeal from the Iowa District Court
for Polk County, Joel D. Novak, Judge. AFFIRMED. Considered by Sackett, C.J., and Miller and Potterfield, JJ. Opinion by Miller, J. (6 pages $3.00)
Sean Michael Gyles appeals his
convictions for conspiracy to deliver methamphetamine and possession of
methamphetamine. He contends there was
insufficient evidence that he participated in a conspiracy to deliver
methamphetamine, and that he received ineffective assistance of trial counsel. OPINION
HOLDS: I. There is substantial
evidence from which a rational jury could conclude beyond a reasonable doubt
that Gyles conspired to deliver methamphetamine. II. We preserve Gyles's claim of ineffective
assistance of counsel for a possible postconviction proceeding.
No.
08-0381. [8-789] IN RE MARRIAGE OF NIELSEN
Appeal from the Iowa District Court
for Cerro Gordo County, David R. Danilson, Judge. REVERSED AND REMANDED. Considered by Huitink, P.J., and Vogel and
Eisenhauer, JJ. Opinion by Eisenhauer,
J. (10 pages $5.00)
Peggy Nielsen appeals from the district court's ruling
on Randall Nielsen's child support modification application. OPINION
HOLDS: Based on our de novo review,
the record does not support using Peggy's earning capacity when calculating
child support. On remand, the court
should calculate child support using Peggy's actual earnings and a five-year
average of Randall's earnings. The
doctrine of waiver by estoppel bars Randall's request for reimbursement of
uncovered medical expenses. Equity
requires Randall to pay one-half of Peggy's trial attorney fees.
No.
08-0206. [8-834] IN RE GUARDIANSHIP OF DEAL-BURCH
Appeal from the Iowa District Court
for Winneshiek County, Margaret L. Lingreen, Judge. REVERSED AND REMANDED. Considered by Sackett, C.J., and Eisenhauer
and Doyle, JJ. Opinion by Sackett,
C.J. (8 pages $4.00)
Grandparents appeal the district
court's order rescinding their appointment as temporary guardians of their
granddaughter and dismissing their petition for permanent guardianship on the
ground the court did not have jurisdiction.
The child, born in Georgia in 2004, lived with her mother in Iowa most
of her life. The child's father lives
in Georgia. The mother died in December
2007, and the maternal grandparents filed a petition in an Iowa court seeking
to be appointed as temporary and permanent guardians for the child, and the
district court granted them temporary guardianship. The father sought to dismiss the petition and terminate the guardianship
on the ground the court lacked jurisdiction.
The father argued under In re
Skinner's Guardianship, 230 Iowa 1016, 300 N.W. 1 (1941), upon the mother's
death, the child's domicile became that of the father. The district court agreed and terminated the
guardianship finding it had no jurisdiction over the child. The grandparents appeal. OPINION
HOLDS: Though the holding in Skinner has not been overruled, Iowa
Code section 598B.201(1) of the Uniform Child-Custody Jurisdiction and
Enforcement Act now exclusively governs jurisdictional issues in child custody
proceedings, including those concerning guardianship. Under sections 598B.102(7) and 598B.201(1)(a), the Iowa court has
jurisdiction to determine guardianship of the child since the child lived with
a parent in Iowa for at least six consecutive months immediately prior to the
commencement of the guardianship proceedings.
Pursuant to section 598B.207, if the court determines it is an
inconvenient forum, it may decline jurisdiction, stay the proceedings, and
grant other necessary relief upon condition that the proceeding be promptly
commenced in a more appropriate forum.
No.
08-0815. [8-895] COPPLE v. IOWA DEP'T OF TRANSP.
Appeal from the Iowa District Court
for Wapello County, Annette J. Scieszinski, Judge. AFFIRMED. Considered by Sackett, C.J., and Eisenhauer
and Doyle, JJ. Opinion by Sackett,
C.J. (8 pages $4.00)
Petitioner-appellant, Gregg Allen Copple (Copple),
appeals from the district court's ruling on judicial review that affirmed the
Department of Transportation's revocation of Copple's driver's license. Copple contends there is not substantial
evidence in the record to support a finding that the arresting officer had
reasonable grounds to believe he had operated a motor vehicle while
intoxicated. He contends since
reasonable grounds were lacking, the officer could not invoke implied consent
under Iowa Code section 321J.6 (2007). OPINION HOLDS: Substantial evidence, including Copple's
bloodshot watery eyes and unsteadiness, along with smelling of alcohol and
witness testimony that Copple had just driven to the scene, supports the
finding that the officer had reasonable grounds to believe Copple had operated
a vehicle while intoxicated. Copple
bore the burden to prove reasonable grounds did not exist and he failed to
provide any evidence to contradict the circumstances supporting the agency's
finding.
No. 07-0832. [8-414]
STATE v. COLE
Appeal from the Iowa District Court
for Black Hawk County, James D. Coil, District Associate Judge, and Kellyann M.
Lekar, Judge. AFFIRMED. Heard by
Huitink, P.J., and Vaitheswaran and Potterfield, JJ. Opinion by Huitink, P.J.
(10 pages $5.00)
Anthony
Cole appeals from judgment entered upon his convictions for attempted murder,
assault, willful injury causing serious injury, two counts of reckless use of a
firearm causing serious injury, and felon in possession of a firearm. He contends the trial court erred: (1) in denying the defendant's motion for a
mental health expert of his choosing; (2) in granting the Waterloo Courier's
motion to quash the testimony of a reporter and otherwise presenting evidence
of a prosecutor's characterization in a different trial of the defendant as a
"hunted man"; (3) in denying his motion for mistrial when a witness made
statements contrary to an in limine ruling; and (4) in failing to recuse
itself. He also argues the evidence was
insufficient to sustain his convictions. OPINION
HOLDS: I. The trial court did not err in denying the
defendant's motion for a mental health expert of his choosing. II. The trial court did not err in granting the
Waterloo Courier's motion to quash the testimony of a reporter and otherwise
presenting evidence of a prosecutor's characterization in a different trial of
the defendant as a "hunted man." III. The trial court did not err in denying defendant's motion for
mistrial when a witness made statements contrary to an in limine ruling. IV. The trial court did not err in refusing to
recuse itself. V. There is substantial
evidence in the record to sustain his convictions.
No. 07-2014. [8-823]
THOMPSON v. VANHOFWEGEN
Appeal from the Iowa District Court
for Clay County, John P. Duffy, Judge. AFFIRMED. Considered by Vogel, P.J., and Mahan and Miller, JJ. Opinion by Mahan, J. (8 pages $4.00)
Gretchen
Thompson appeals from the Iowa Rule of Civil Procedure 1.944 dismissal of her
dental malpractice claim, contending the district court erred in refusing to
reinstate the case following dismissal and in failing to grant her motion to
recuse. OPINION HOLDS: The case was
dismissed by operation of law on January 1, 2007. Thompson failed to establish that dismissal was a result of
oversight, mistake, or other reasonable cause and the case was not therefore
subject to mandatory reinstatement. We
have thoroughly reviewed the record and find no abuse of the court's discretion
in refusing to reinstate this case. Nor
did the district court err in refusing to recuse.
No. 07-1993. [8-670]
IN RE MARRIAGE OF ZUBROD
Appeal from the Iowa District Court
for Linn County, Denver D. Dillard, Judge. AFFIRMED. Considered by Sackett, C.J., and Eisenhauer and Doyle, JJ. Opinion by Doyle, J. (9 pages $4.50)
Joan
Zubrod appeals the physical care provisions of the district court's decree
dissolving her marriage, contending the court erred in not placing primary
physical care of the parties' daughter with her and instead granting the
father's request for joint physical care.
OPINION HOLDS: After reviewing all of the evidence and
applying the appropriate factors, we find the district court properly awarded
joint physical care in this case.
Accordingly, we deny Joan's request for physical care and affirm the
district court's award of joint physical care.
No. 07-1493. [8-815] KENDALL v. STATE
Appeal from the Iowa District Court
for Linn County, Douglas R. Russell, Judge. AFFIRMED. Considered by Sackett, C.J., and Eisenhauer and Doyle, JJ. Opinion by Doyle, J. (9 pages $4.50)
Edward
Kendall pled guilty to attempted murder, willful injury, first-degree burglary,
and second-degree theft. He filed an
application for postconviction relief, claiming he received ineffective
assistance because his trial counsel did not request a competency hearing prior
to the plea proceeding. The district
court denied his request for postconviction relief, and he appeals. OPINION
HOLDS: I. Kendall claims the district court erred by not ruling on an issue
he raised in his pro se brief. Kendall
did not file a motion pursuant to Iowa Rule of Civil Procedure 1.904(2), and this
issue has not been preserved. II.
Kendall claims he received ineffective assistance because his
postconviction counsel did not adequately raise the claim that his trial
counsel was ineffective for failing to request a competency hearing. A challenge based on a failure to have a
competency hearing should be raised by a motion in arrest of judgment. Kendall did not file such a motion, and on
appeal does not set forth any reason for failing to file the motion. Even if the issue had been preserved, we determine
Kendall has not shown he was prejudiced.
The evidence does not show Kendall would have been declared
incompetent. III. Kendall raised several
issues in a pro se brief. Either we
have already addressed these issues, or they have not been preserved.
No. 07-2043. [8-825] STATE v. BERG
Appeal from the Iowa District Court
for Woodbury County, John D. Ackerman, Judge. AFFIRMED. Considered by Sackett, C.J., and Eisenhauer
and Doyle, JJ. Opinion by Doyle,
J. (6 pages $3.00)
Terry
Leland Berg Jr. appeals from his conviction and sentences, contending his
counsel was ineffective in handling his guilty pleas. OPINION HOLDS: Because we find no reasonable probability
Berg would have rejected the plea agreement and insisted on going to trial if he
had been informed that the court had the discretion to waive the mandatory
minimum sentence, we affirm.
No. 08-0854. [8-848] STATE v. WATERS
Appeal from the Iowa District Court
for Scott County, Gary D. McKenrick and Mark J. Smith, Judges.
CONVICTIONS AFFIRMED; SENTENCE AFFIRMED IN PART AND VACATED IN PART AND
REMANDED FOR RESENTENCING.
Considered by Sackett, C.J., and Eisenhauer and Doyle, JJ. Opinion by Doyle, J. (5 pages $2.50)
Norman
Waters Jr. appeals from his conviction, judgment, and sentence for a drug tax
stamp violation and driving under suspension, contending the district court
abused its discretion in considering only one factor in its sentencing decision
and the sentence imposed for driving while suspended was illegal and void. OPINION
HOLDS: Because we find no basis for
Waters's assertion the district court only considered one factor in sentencing
him, but find the court imposed an illegal sentence in sentencing Waters to an
indeterminate term for driving while suspended, a serious misdemeanor, we
affirm Waters's sentence for the drug tax stamp violation, vacate the driving
under suspension sentence as void, and remand for resentencing on the driving
under suspension conviction.
No. 08-0343. [8-881] COYLE v. KUJACZYNSKI
Appeal from the Iowa District Court
for Johnson County, Marsha Bergan, Judge. AFFIRMED. Considered by Sackett, C.J., and Eisenhauer and Doyle, JJ. Opinion by Doyle, J. (11 pages $5.50)
Patricia
D. Kujaczynski appeals from the district court's decree directing the partition
of her homestead by sale and the equal division of its sale proceeds with her
joint tenant. OPINION HOLDS: Because we
conclude the district court did not err in determining Kujaczynski's homestead
interest in the property did not preclude the involuntary partition sale of the
property, and that the district court did not err in ordering that the sale
proceeds be divided equally between the parties, we affirm the judgment of the
district court.
