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an unpublished opinion of the Iowa Court of Appeals may be cited in a brief;
however, unpublished opinions shall not constitute controlling legal authority.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.
