SUMMARY OF DECISIONS, IOWA COURT OF APPEALS 

March 10, 2010 

  

Pursuant to Iowa Supreme Court Rule 6.14(5), an unpublished opinion of the Iowa Court of Appeals may be cited in a brief; however, unpublished opinions shall not constitute controlling legal authority.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. 07-1155.   [9-1033]   GUARDIANSHIP OF LUCAS 

            Appeal from the Iowa District Court for Wayne County, Carla T. Schemmel, Judge.  AFFIRMED.  Considered by Vogel, P.J., and Doyle and Mansfield, JJ.  Opinion by Vogel, P.J.  (4 pages $2.00) 

  

Janice Harden appeals from the district court order filed on June 8, 2007, which ruled on several of Janice's motions filed in GCPR007431 and in CVCV022516.  Janice objected to the closing of her father's conservatorship.  The district court found the sale of real estate in the conservatorship was proper and ordered the conservatorship to be closed.  The court further found that Janice's claims would be more appropriately handled in the estate proceedings.  OPINION HOLDS:  We agree with the fact findings and conclusions of law of the district court.  Pursuant to Iowa Court Rule 21.29(1)(a), (c), (d), and (e), we affirm the district court order dismissing Janice's motions. 

  

  

No. 09-0703.   [9-941]   WSH PROPERTIES v. DANIELS 

            Appeal from the Iowa District Court for Lucas County, John D. Lloyd, Judge.  APPEAL DISMISSED.  Considered by Sackett, C.J., and Vaitheswaran and Danilson, JJ.  Opinion by Vaitheswaran, J.  (3 pages $1.50) 

  

            Defendants appeal the district court's denial of their third motion for new trial.  OPINION HOLDS:  As the defendants' notice of appeal was untimely, this appeal should be dismissed. 

  

  

No. 09-0015.   [9-960]   SLADE v. FOUGNER 

            Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.  AFFIRMED AS MODIFIED.  Considered by Sackett, C.J., and Vaitheswaran and Danilson, JJ.  Opinion by Vaitheswaran, J.  (8 pages $4.00) 

  

            A father appeals a district court order requiring him to pay $61,032.60 in past child support.  He claims the district court erred in rejecting his affirmative defenses and calculating the support award.  He additionally claims Iowa Code section 600B.25(1) (2007), under which support was ordered, violates the equal protection clauses of the federal and state constitutions.  OPINION HOLDS:  We conclude the district court acted equitably in ordering the payment of back child support.  The court's calculation of the amount to be paid is supported by the record and appropriately weighs the salient circumstances, although the court inadvertently charged rather than credited the father "with eight months of payments in 2003."  We accordingly modify the judgment to correct that error.  Finally, we conclude error was not preserved on the equal protection issue raised by the father.  The mother is granted $1500 in appellate attorney fees.    

  

  

No. 09-1002.   [9-987]   IN RE B.O. 

            Appeal from the Iowa District Court for Dubuque County, Monica L. Ackley, Judge.  AFFIRMED.  Considered by Sackett, C.J., and Vaitheswaran and Danilson, JJ.  Opinion by Vaitheswaran, J.  (5 pages $2.50) 

  

            The respondent appeals an order requiring involuntary inpatient hospitalization for a serious mental impairment.  He challenges the inpatient treatment order on constitutional grounds and contends the evidence established only that he was a chronic substance abuser and not that he was seriously mentally impaired.  OPINION HOLDS:  We conclude the constitutional challenge was not preserved for our review and there is clear and convincing evidence supporting the district court's finding of serious mental impairment. 

  

  

No.  09-1104.   [0-037]   IN RE MARRIAGE OF FRANZEN  

            Appeal from the Iowa District Court for Bremer County, Chris Foy, Judge.  AFFIRMED.  Considered by Vogel, P.J., Eisenhauer, J., and Zimmer, S.J.  Opinion by Eisenhauer, J.  (5 pages $2.50) 

  

David Franzen appeals claiming the alimony awarded to Rochelle Franzen is excessive.  OPINION HOLDS:  The trial court's spousal support award is equitable in both amount and duration.  Rochelle will need additional training to become employable and David's alimony obligation does not increase until his child support obligation ends.   

  

  

No.  09-696.   [0-060]   STONEROOK v. STATE  

            Appeal from the Iowa District Court for Mills County, Timothy O'Grady, Judge.  AFFIRMED.  Considered by Sackett, C.J., and Doyle and Danilson, JJ.  Opinion by Sackett, C.J.  (9 pages $4.50) 

  

Stonerook filed a petition for postconviction relief in June 2007, and the issues came on for trial on April 2, 2009.  Stonerook and his trial counsel, Joseph Hrvol, testified.  The district court dismissed the petition on each ground asserted.  It found (1) Stonerook failed to prove he was prejudiced by the court's failure to grant his motion for change of venue, (2) he did not prove Hrvol breached an essential duty or that he was prejudiced by not having voir dire reported, (3) there was substantial evidence to support the jury's findings that Stonerook was sane and did not have diminished capacity at the time of the shooting, and (4) appellate counsel was not ineffective for failing to raise any of the above issues on direct appeal.  Stonerook appeals.  OPINION HOLDS:  We affirm the district court's dismissal of Stonerook's application for postconviction relief.  He failed to establish any prejudice resulted from the district court's denial of his motion for change of venue or his attorney's failure to have voir dire reported.  Stonerook's remaining claims are likewise without merit.  He failed to preserve error on his claim that the trial court employed the wrong standard on his motion for a new trial.  Even if error were preserved, the record shows the greater weight of the evidence supports the jury's verdict.  Stonerook suffered no prejudice by his appellate attorney's failure to raise meritless issues.   

  

  

No.  09-0809.   [0-063]   MAGNA INTERNATIONAL OF AMERICA v. HILL  

            Appeal from the Iowa District Court for Polk County, Don C. Nickerson, Judge.  AFFIRMED.  Considered by Vogel, P.J., Eisenhauer, J., and Zimmer, S.J.  Opinion by Eisenhauer, J.  (10 pages $5.00) 

  

Employer and insurance carrier appeal from a district court judicial review ruling affirming the workers' compensation commissioner's benefit award.  OPINON HOLDS:  Substantial evidence supports the agency's determination claimant's injury arose out of her employment.  The agency's decision to award permanent total disability is not affected by a misapplication of law to fact.  Based on the administrative record, it was not irrational, illogical, or wholly unjustifiable to conclude claimant is permanently disabled. 

  

  

No.  09-0487.   [0-083]   STATE v. MCMILLEN  

            Appeal from the Iowa District Court for Sioux County, Robert J. Dull, District Associate Judge.  AFFIRMED.  Considered by Vogel, P.J., Eisenhauer, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (7 pages $3.50) 

  

            Terry McMillen was charged with operating while intoxicated (OWI), second offense, in violation of Iowa Code section 321J.2 (2007).  McMillen filed a motion to suppress, claiming there was not reasonable cause to stop his vehicle.  Office Bruce Jacobsma of the Orange City Police Department testified he saw McMillen make a wide right turn, which took him across the center line and into the lane of opposing traffic.  McMillen's attorney asked to have Officer Jacobsma's testimony about the wide turn stricken because it was not included in the minutes of testimony.  After the suppression hearing, McMillen filed a motion to reopen the hearing for additional evidence concerning the right turn.  The court issued a ruling denying the motion to suppress and the motion to reopen the evidence.  Following McMillen's conviction for OWI, second offense, he appeals.  OPINION HOLDS:  I.  McMillen contends the court abused its discretion by overruling his objection to Officer Jacobsma's testimony on the ground that it exceeded the minutes of testimony.  We find the minutes provided a full and fair statement sufficient to alert defendant to the source and nature of the information against him.  II.  In his motion to reopen the evidence, McMillen claimed that because Officer Jacobsma testified beyond the minutes he was denied his right to confrontation under the Sixth Amendment to the United States Constitution and article 1, section 8 of the Iowa Constitution.  We determine McMillen has not shown he was denied his right to confrontation because the evidence does not show Officer Jacobsma testified beyond the minutes.  III.  McMillen did not preserve this claim there was a Confrontation Clause violation because the court limited his ability to cross-examine Officer Jacobsma on his testimony about the wide right turn.  We affirm the district court. 

  

  

No.  09-1929.   [0-105]   IN RE A.T.  

            Appeal from the Iowa District Court for Johnson County, Sylvia A. Lewis, District Associate Judge.  AFFIRMED.  Considered by Vogel, P.J., Eisenhauer, J., and Miller, S.J.  Opinion by Miller, S.J.  (5 pages $2.50) 

  

            A father appeals from a juvenile court order terminating his parental rights to a child.  OPINION HOLDS:  The father has not preserved error on his claim that the State did not prove the grounds for termination pursuant to section 232.116(1)(e), and makes no claim that the juvenile court erred in also ordering termination pursuant to sections 232.116(1)(g) and (h).  We therefore affirm termination pursuant to the three provisions relied on by the juvenile court.    

  

  

No.  10-0104.   [0-144]   IN RE A.R.S.  

            Appeal from the Iowa District Court for Pottawattamie County, Mark J. Eveloff, District Associate Judge.  AFFIRMED.  Considered by Sackett, C.J., and Doyle and Danilson, JJ.  Opinion by Sackett, C.J.  (6 pages $3.00) 

  

            Roderick, the father of Ariell, appeals from the juvenile court order terminating his parental rights.  He contends the State did not prove the grounds for termination by clear and convincing evidence and termination is not in the child's best interests.  OPINION HOLDS:  The State proved the grounds for termination under Iowa Code section 232.116(1)(f) (2009).  Termination is in the child's best interest under section 232.116(2).  Error was not preserved concerning any of the exceptions under section 232.116(3). 

  

  

No.  09-0182.   [9-851]   MIDWEST HATCHERY & POULTRY FARMS, INC. v. DOORENBOS POULTRY, INC.  

            Appeal from the Iowa District Court for Sioux County, Steven J. Andreasen, Judge.  AFFIRMED AND REMANDED.  Considered by Eisenhauer, P.J., Potterfield, J., and Zimmer, S.J.  Opinion by Zimmer, S.J.  (19 pages $9.50)  

  

            In the fall of 2006, Doorenbos Poultry, Inc. entered into a written contract with Midwest Hatchery & Poultry Farms, Inc. to purchase 112,000 pullets (young hens) at eighteen weeks of age, to be delivered on December 28, 2006.  Over January 16, 17, and 18, 2007, Midwest delivered 115,581 pullets to Doorenbos Poultry, but Doorenbos believed the birds delivered were thirteen to fourteen weeks of age rather than eighteen weeks.  Doorenbos refused to pay the full purchase price, and Midwest filed suit.  The district court found that because Doorenbos accepted and kept the pullets, Midwest is entitled to the unpaid balance of the contract price.  The court also concluded that Doorenbos Poultry's acceptance of the pullets did not preclude its breach of contract claim against Midwest.  The court set off the amount of the loss against the balance Doorenbos Poultry still owed Midwest and entered judgment against Doorenbos Poultry for $52,048.79.  The court also ordered Doorenbos Poultry to pay $3000 for Midwest's attorney fees.  Doorenbos Poultry appeals.  OPINION HOLDS:  I.  Under the Uniform Commercial Code (UCC), if a buyer accepts goods, despite their nonconformity to the specifications of the contract, the buyer must pay the contract rate for the goods accepted.  We determine there is substantial evidence in the record to support the finding of the district court that Doorenbos Poultry accepted the chickens delivered by Midwest despite their nonconformity.  II.  Doorenbos Poultry argues that the trial court erred in concluding the limitation of remedies provision in the parties' contract failed of its essential purpose.  Upon our review of the record, we agree with the district court's ultimate conclusion that the limited remedy provision of the parities' contract failed of its essential purpose.  The record supports the trial court's conclusion that replacement or refund was not practical at the time of trial.  III.  Because the limitation of remedies provision failed in its essential purpose, a consideration of damages is based on the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable.  We determine there is substantial evidence in the record to support the district court's award of damages.  IV.  We conclude the court properly awarded attorney fees that were permitted under the contract.  We determine the amount of appellate attorney fees should be determined in the district court, and remand on this issue. 

  

  

No.  09-0416.   [09-1047]   STATE v. REYNOLDS  

            Appeal from the Iowa District Court for Muscatine County, Paul L. Macek, Judge.  AFFIRMED.  Considered by Eisenhauer, P.J., Potterfield, J., and Huitink, S.J.  Opinion by Eisenhauer, P.J.  (9 pages $4.50) 

  

Reynolds appeals his convictions for theft and forgery arguing there was insufficient evidence to support the jury verdict.  Alternatively, he claims he received ineffective assistance of counsel.  OPINON HOLDS:  Reynolds waived error on his insufficient-evidence claim.  Counsel was not ineffective.  When "viewed in the light most favorable to the State," sufficient evidence supported the knowledge and intent elements of the crimes.  Therefore, counsel had no duty to make a meritless motion.  

  

  

No.  9-0926.   [9-1061]   IN RE MARRIAGE OF BALICHEK  

            Appeal from the Iowa District Court for Jones County, Denver D. Dillard, Judge.  AFFIRMED AS MODIFIED.  Heard by Sackett, C.J., and Doyle and Danilson, JJ.  Opinion by Sackett, C.J.  (9 pages $4.50) 

  

            Evelyn Balichek appeals, challenging the economic provisions of the decree dissolving her thirty-nine year marriage.  She contends the parties' antenuptial agreement should not have controlled the division of farmland held in George's name and that she should have additional property and her alimony award should be increased.  George, born in 1918, and Evelyn, born in 1925, married in 1970.  George insisted on an antenuptial agreement and one was prepared that provided that each should retain their real property.  Evelyn was purchasing a residence in Davenport and George owned an unencumbered 160 acres of farmland in Jones County, Iowa, having purchased it in 1944.  After the marriage, they lived on the farm and Evelyn's home was deeded to her son.  George went into a nursing home and about a week before he was to be released to go home, Evelyn left the farm and filed for divorce.  The matter came on for trial.  The district court divided personal property of $57,000 and did not give Evelyn any interest in the farm based on a finding that Evelyn understood upon signing the agreement she would have no further claim against George's farm.  George was ordered to pay Evelyn alimony of $1000 a month until she dies or remarries or George dies, whichever occurs first.  Evelyn contends the property division that left her with approximately $27,000 in assets and George with over $627,000 in assets is not equitable and the district court erred in finding the antenuptial agreement required that George receive all the farmland.  OPINION HOLDS:  We agree and after considering the factors under Iowa Code section 598.21(5) (2007 Supp.), modify to provide that George pay her an additional $100,000.  We affirm as modified.  

  

  

No. 08-2034.   [9-906]   STATE v. RUSSELL 

            Appeal from the Iowa District Court for Crawford County, Edward A. Jacobson, Judge.  CONVICTION AFFIRMED, SENTENCE VACATED IN PART AND CASE REMANDED FOR RESENTENCING.  Considered by Sackett, C.J., and Vaitheswaran and Danilson, JJ.  Opinion by Vaitheswaran, J.  (8 pages $4.00) 

  

            A defendant appeals his judgment and sentence for ongoing criminal conduct, two counts of human trafficking, and two counts of pandering, challenging the sufficiency of the evidence and certain jury instructions, the district court's ruling on his new trial motion, and the district court's imposition of a fine.  OPINION HOLDS:  Sufficient evidence exists in the record to support the jury's findings, the district court applied the correct standard in ruling on the defendant's motion for new trial, but no statutory authority supports imposition of the $1000 fine assessed against the defendant for his commission of a class "B" felony. 

  

  

No. 09-0111.   [9-1038]   STATE v. HABBEN 

            Appeal from the Iowa District Court for Clay County, Don E. Courtney, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Vaitheswaran, P.J., and Potterfield and Mansfield, JJ.  Opinion by Vaitheswaran, P.J.  (11 pages $5.50) 

  

            A defendant appeals his judgment and sentence on one count of second-degree theft and two counts of forgery, contending there was insufficient evidence in the record to support the jury's findings of guilt; he also raises several other arguments.  OPINION HOLDS:  The State failed to prove that a bank—the alleged victim of theft—owned the vehicle in question, and therefore, there was insufficient evidence to convict the defendant of theft.  There was sufficient evidence to show the defendant's specific intent to defraud related to the forgery charges.  The defendant's remaining contentions on appeal are without merit. 

  

  

No. 09-0838.   [9-1057]   IN RE MARRIAGE OF RYAN 

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

  

            A husband appeals the spousal support portion of a dissolution decree.  OPINION HOLDS:  Given the parties' relative financial positions, the district court acted equitably in awarding the wife spousal support in this case. 

  

  

No. 09-0075.   [0-008]   ABRAHAMSON v. STATE 

            Appeal from the Iowa District Court for Warren County, Darrell Goodhue, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J. and Potterfield and Mansfield, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages $2.50) 

  

            A postconviction relief applicant appeals the district court's denial of his application for postconviction relief premised on prosecutorial vindictiveness.  OPINION HOLDS:  Because the presumption of prosecutorial vindictiveness does not apply in a pretrial setting and because the applicant submitted no direct evidence of actual vindictiveness, the district court did not err in denying the application for postconviction relief. 

  

  

No. 09-0483.   [0-027]   IN RE MARRIAGE OF COOPER 

            Appeal from the Iowa District Court for Grundy County, Richard D. Stochl, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mansfield, JJ.  Opinion by Vaitheswaran, P.J.  (3 pages $1.50) 

  

            A wife appeals the district court's dissolution decree, contending (1) her husband's retirement account should have been divided equally and (2) the district court's order to consult with a tax preparer was inequitable.  OPINION HOLDS:  Failure to divide the retirement account was equitable based upon the husband's use of the account's proceeds to pay down marital debts and the court acted equitably in ordering the parties to consult with a tax preparer. 

  

  

No. 09-0676.   [9-977]   STATE v. HOOVER 

            Appeal from the Iowa District Court for Marshall County, Carl D. Baker, Judge.  REVERSED AND REMANDED.  Considered by Vogel, P.J., and Doyle and Mansfield, JJ.  Opinion by Vogel, P.J.  (7 pages $3.50) 

  

            The State appeals from the district court ruling requiring the State to disclose the identity of a confidential informant on the application for a search warrant.  OPINION HOLDS: We reverse and remand because at this pretrial stage, neither defendant carried their burden of proof to show their need to prepare for an eventual trial outweighed the State's need to protect the free flow of information from this confidential informant.  

  

  

No. 09-1066.   [9-991]   IN RE ESTATE OF ANDERSON 

            Appeal from the Iowa District Court for Hardin County, Carl D. Baker, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Vogel, P.J., and Doyle and Mansfield, JJ.  Opinion by Vogel, P.J.  Dissent by Mansfield, J.  (12 pages $6.00) 

  

            Paul Anderson appeals from the district court decision ordering him to pay damages to the estate of his father, Ralph M. Anderson.  OPINION HOLDS:  We affirm the finding of the district court that the estate suffered a loss because Paul was a holdover on the farmland, but we reverse as to the amount of damages.  We reduce the judgment against Paul for holdover of the farm lease from $4000 to $3606 and reduce the judgment against Paul for holdover of the residence from $4000 to $440.  DISSENT ASSERTS:  I would affirm the judgment.  The liquidated damage clause was valid and enforceable, and mandated a larger award of damages than was actually made.  Because the appellees did not cross-appeal, I would simply affirm.  

  

  

No. 09-0315.   [9-1044]   DILLENBURG v. CAMPBELL 

            Appeal from the Iowa District Court for Union County, John D. Lloyd, Judge.  AFFIRMED.  Considered by Vogel, P.J., and Doyle and Mansfield, JJ.  Opinion by Vogel, P.J.  (7 pages $3.50) 

  

            Junior and Lucille Dillenburg filed suit against Arthur Campbell, Hope Holland-Mullins, and WAC n HAC, L.L.C., seeking specific performance of an option to purchase contract.  The option contract was for farmland in Union County, which the Dillenburgs had leased from Arthur and Hope's mother, Florence, who had died in 2004.  Arthur and Hope served as the executors of Florence's estate and did not provide notice by mail to the Dillenburgs.  The district court granted the Dillenburgs' request for specific performance.  On appeal the defendants assert that the Dillenburgs' claim is barred by the statute of limitations set forth in Iowa Code section 633.410(1) (2003).  OPINION HOLDS:  We agree with the district court that the executors of Florence's estate should have provided notice by mail to Junior pursuant to Iowa code section 633.304.  It is clear that during the pendency of the administration of the estate, Hope became aware of the option contract entered into between Junior and Florence.  As a result, Junior was a "reasonably ascertainable" claimant, to whom the executors were required to provide notice by mail.  Because the executors failed to provide such notice, the Dillenburgs' claim is not barred by Iowa Code section 633.401(1).  We therefore affirm the district court's order.  

  

  

No. 09-0752.   [9-1055]   STATE v. DISTRICT COURT 

            Appeal from the Iowa District Court for Webster County, Thomas J. Bice, Judge.  WRIT SUSTAINED, ORDER ANNULLED, AND REMANDED FOR FURTHER PROCEEDINGS.  Considered by Vogel, P.J., and Doyle and Mansfield, JJ.  Opinion by Vogel, P.J.  (6 pages $3.00) 

  

            The State seeks a writ of certiorari to reverse the district court's order restoring defendant Travis Roberts's deferred judgment, which was revoked in 1992.  OPINION HOLDS:  We agree with the State that revoking probation and entering a judgment that had been deferred, does not equate to imposing an illegal sentence such that it could be corrected years later under Iowa Rule of Criminal Procedure 2.24(5).  The pronouncement of judgment in 1992 was not an "illegal sentence," which would allow the district court in 2009 to "restore" the deferred judgment.  We therefore sustain the State's writ and remand for further proceedings. 

  

  

No. 09-0534.   [9-971]   IN RE ESTATE OF McDOWELL 

            Appeal from the Iowa District Court for Poweshiek County, Joel D. Yates, Judge.  REVERSED AND REMANDED.  Heard by Sackett, C.J., and Doyle and Danilson, JJ.  Opinion by Doyle, J.  (11 pages $5.50) 

  

            Evelyn Wanders, trustee of the Florence M. McDowell Trust, appeals from an order of the district court granting the co-executors of the Estate of Florence M. McDowell authority to sell an eighty-acre farm owned by decedent at the time of the her death.  OPINION HOLDS:  We conclude the farm should be distributed to the trust under the pour-over provision of decedent's will, and therefore the district court erred in authorizing the co-executors to sell the farm.  Accordingly, we reverse the ruling of the district court and remand for further proceedings consistent with this opinion. 

  

  

No. 09-0567.   [0-029]   STATE v. MEEK 

            Appeal from the Iowa District Court for Story County, Steven P. Van Marel, District Associate Judge.  SENTENCES AFFIRMED IN PART, 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) 

  

            Ryan Meek appeals the sentences imposed following his convictions for second offense domestic abuse assault causing bodily injury, possession of marijuana, and obstruction of emergency communications.  He first claims the district court erred in enhancing his sentence for domestic abuse assault because it did not follow the procedure prescribed in Iowa Rule of Criminal Procedure 2.19(9) for considering prior convictions.  He next claims the court erred in designating the county jail as the place of confinement for the sentences imposed on the possession of marijuana and obstruction of emergency communications convictions.  OPINION HOLDS:  We preserve Meek's first claim for possible postconviction relief proceedings, vacate the sentences imposed for the possession of marijuana and obstruction of emergency communications convictions, and remand for resentencing on those two convictions.     

  

  

No. 09-0951.   [0-065]   STATE v. BENESH 

            Appeal from the Iowa District Court for Black Hawk County, Jeffrey L. Harris, District Associate Judge.  REVERSED AND REMANDED.  Considered by Sackett, C.J., and Doyle and Danilson, JJ.  Opinion by Doyle, J.  Concurrence in part and dissent in part by Sackett, C.J.  (18 pages $9.00) 

  

            Chad Allen Benesh appeals from his conviction for the offense of assault domestic abuse causing bodily injury (Count II), contending the district court erred in denying (1) his motion for judgment of acquittal because the jury's finding of guilt on Count II was inconsistent with the jury's acquittal on his charge of assault domestic abuse with intent to cause serious injury (Count I); (2) his motion for a mistrial, asserting the court improperly questioned a defense witness displaying bias to the jury; and (3) his motion for judgment of acquittal because there was insufficient evidence on the cohabitation element to support the domestic abuse conviction.  OPINION HOLDS:  We conclude the district court did not err in finding the verdict was not so logically and legally inconsistent as to be irreconcilable within the context of this case.  Additionally, we conclude the district court's limited and impartial questioning, conducted in an effort to elicit testimony it believed necessary to clarify the record, was neither an abuse of discretion nor served to deprive Benesh of a fair trial.  Finally, we find the jury could not have reasonably found that at the time of the incident or during the year previous to the incident, Benesh and Neelans were household members "cohabitating" as contemplated under the law.  We therefore conclude there was insufficient evidence to support a finding of domestic abuse assault under section Iowa Code section 708.2A(2)(b) (2007).  We reverse the entry of judgment and sentence for assault domestic abuse causing bodily injury and remand for entry of judgment and sentence for assault causing bodily injury.  PARTIAL DISSENT ASSERTS:  I concur in part and dissent in part.  I concur on the claim that the jury rendered inconsistent verdicts and agree that the jury could not reasonably find Benesh and Neelens were "cohabitating" for purposes of the domestic abuse assault conviction.  I disagree with the majority's conclusion on the trial court's questioning of one of the witnesses, Maureece McDuffee.  The court's questions were an abuse of discretion because they were not necessary or in the interest of justice under Iowa Rule of Evidence 5.614(c).  The questions did not clarify any facts relevant to the elements of the charged offense or illuminate McDuffee's account of the incident.  The questions pertained to the witness's character and credibility, an issue for the jury to assess. I would also find the court's interrogation deprived Benesh of a fair trial.  McDuffee's credibility was a key issue since she provided the only corroborating evidence to support Benesh's claim of self defense.  The timing and phrasing of the court's questions placed McDuffee in a negative light in front of the jury, and may have been interpreted by the jury as biased.  I would reverse Benesh's conviction on this basis.    

  

  

No. 09-1832.   [0-101]   IN RE L.W. 

            Appeal from the Iowa District Court for Lee (North) County, Gary R. Noneman, District Associate Judge.  AFFIRMED.  Considered by Sackett, C.J., and Doyle and Danilson, JJ.  Opinion by Doyle, J.  (11 pages $5.50) 

  

            A mother appeals from the order terminating her parental rights, contending the State failed to provide her with reasonable services intended to facilitate reunification with the children and the State did not meet its burden in proving by clear and convincing evidence that the children could not be returned to the mother's custody as of the date of the termination hearing.  OPINION HOLDS:  Because we conclude the State's efforts towards reunification throughout the juvenile court proceedings were reasonable and we find clear and convincing evidence that the children could not be safely returned to the mother's care at the time of the termination hearing, we affirm the juvenile court's decision to terminate the mother's parental rights. 

  

  

No. 09-0754.   [0-118]   STATE v. BENDER 

            Appeal from the Iowa District Court for Pottawattamie County, Gregory W. Steensland and Charles L. Smith, Judges.  SENTENCE VACATED AND REMANDED FOR FURTHER PROCEEDINGS.  Considered by Sackett, C.J., and Doyle and Danilson, JJ.  Opinion by Doyle, J.  (8 pages $4.00) 

  

            Kristy Bender appeals from her conviction and sentence for the offense of possession of a precursor substance in violation of Iowa Code section 124.401(4) (2007), contending her trial counsel was ineffective in handling her guilty plea.  OPINION HOLDS:  Based on the minutes of testimony and the in-court colloquy, we do not believe a sufficient factual basis for the plea was established because the record does not evidence that items relevant to the possession precursor charge were under Bender's control and dominion.  We therefore vacate the sentence and remand for further proceedings at which time the State may supplement the record to establish a factual basis for the crime charged. 

  

  

No. 08-1125.   [9-1035]   STATE v. LITTLE 

            Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge.  AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.  Heard by Vaitheswaran, P.J., and Potterfield and Mansfield, JJ.  Opinion by Mansfield, J.  (38 pages $19.00) 

  

            Manfred (Fred) Little appeals his sentence and convictions for first-degree kidnapping and willful injury causing serious injury, arising out of serious acts of physical and sexual abuse allegedly perpetrated by Little against his wife between May 2006 and August 2006.  Little claims the district court erred in admitting testimony of his ex-wife and two daughters pertaining to prior incidents of domestic abuse during Little's previous marriage, in allowing a domestic violence expert to "profile" the traits of a person who commits domestic violence and to bolster the credibility of the victim, in denying his motion for a bill of particulars, in denying his motion for new trial on the grounds of prosecutorial misconduct, and in failing to grant his motion for judgment of acquittal on the kidnapping charge.  OPINION HOLDS:  (1) The district court abused its discretion in admitting testimony of Little's ex-wife and two daughters pertaining to Little's behavior during his previous forty-year marriage.  This testimony amounted to impermissible character evidence.  (2) The improper admission of this "bad acts" evidence prejudiced the jury's determination of the kidnapping charge and requires a new trial on that count.  (3)  There was substantial evidence to support Little's conviction on the kidnapping charge.  Thus, a new trial of that count should be ordered rather than its dismissal.  (4) The willful injury causing serious injury verdict was supported by overwhelming evidence.  Accordingly, the wrongful admission of "bad acts" evidence, as well as Little's other claimed errors, did not affect that verdict and we affirm it.  (5)  Although the kidnapping and willful injury convictions were merged by stipulation, our ruling has the effect of undoing the merger (at least temporarily).  Thus, we direct the district court to enter a judgment of conviction on the willful injury causing serious injury count, but to merge the counts again if Little is subsequently convicted of kidnapping on retrial.  

  

  

No. 09-0912.   [0-091]   SWEERS v. WESTFALL 

            Appeal from the Iowa District Court for Johnson County, Marsha Bergan, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mansfield, JJ.  Opinion by Mansfield, J.  Concurrence in part and dissent in part by Doyle, J.  (12 pages $6.00) 

  

            Scott Sweers appeals following a jury verdict in his personal injury action against Craig and Tamara Westfall, asserting evidentiary errors by the district court.  He claims the district court erred in allowing the Westfalls to present evidence regarding a preexisting injury and liability insurance.  OPINION HOLDS:  The district court did not abuse its discretion in admitting the challenged evidence.  We accordingly affirm the judgment of the court.  PARTIAL DISSENT ASSERTS:  Counsel for the Westfalls should not have been allowed to indirectly suggest at trial that Sweers was covered by insurance.  Reference to the person who suggested Sweers seek medical treatment as Sweers's "insurance agent" was unnecessary and could have easily been avoided by referring to the person in another way.      

  

  

No. 10-0105.   [0-145]   IN RE A.S. 

            Appeal from the Iowa District Court for Polk County, Carol S. Egly, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mansfield, JJ.  Opinion by Mansfield, J.  (6 pages $3.00) 

  

            Two fathers separately appeal a juvenile court order terminating their respective parental rights to two children born of the same mother.  OPINION HOLDS:  I.  The first father is currently in prison and is expected to remain incarcerated until 2012.  Further, he has a poor track record in parenting his previous children.  The father also admitted that he has not seen this child in over a year and has a weak relationship with her.  Termination of his parental rights is in the child's best interests.  II.  The second father is also incarcerated, and has never met his child.  He also has convictions for assault and intimidation with a dangerous weapon.  Accordingly, permanency should not be delayed, and termination was also in this child's best interests.  The order of the juvenile court is affirmed. 

  

  

No. 09-0616.   [0-031]   HEMM v. STATE 

            Appeal from the Iowa District Court for Wapello County, Joel D. Yates, Judge.  AFFIRMED.  Considered by Sackett, C.J., and Doyle and Danilson, JJ.  Opinion by Danilson, J.  (15 pages $7.50) 

  

            Kenny Hemm appeals the district court decision denying his application for postconviction relief.  Hemm contends his trial counsel was ineffective in failing to file a motion to suppress the evidence seized during the execution of the two search warrants issued for Hemm's house and garage on April 17 and 21, 2000.  OPINION HOLDS:  I.  We find the April 17 warrant was sufficiently particularized, and therefore, Hemm's counsel had no duty to file a meritless motion to suppress the warrant.  II.  We find the April 21 warrant was too broad and not sufficiently particularized.  III.  We further find, however, that Hemm has failed to prove he was prejudiced by his counsel's failure to file motions to suppress with regard to either warrant.  We therefore conclude Hemm's counsel did not render ineffective assistance. 

  

  

No. 09-1081.   [0-095]   MOLANO v. MOLANO 

            Appeal from the Iowa District Court for Polk County, Ricahrd G. Blane II, Judge.  AFFIRMED.  Considered by Sackett, C.J., and Doyle and Danilson, JJ.  Opinion by Danilson, J.  (8 pages $4.00) 

  

            Wendee Molano appeals from the district court's dismissal of her declaratory judgment action.  The court dismissed the declaratory judgment action sua sponte, finding the petition "amounts to a collateral attack on a previous judgment in CE54576."  The court rejected Wendee's claim that the issues presented were not precluded because they were brought on behalf of Sophie, who was not a party to the prior action.  OPINION HOLDS:  The district court did not abuse its discretion in dismissing the petition for declaratory judgment and injunctive relief.  We agree with the district court that the declaratory judgment action is an improper collateral attack of a prior judgment.  

  

  

No. 10-0063.   [0-103]   IN RE M.M. 

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

  

            A father appeals the termination of his parental rights to his nine-year-old daughter, M.G.  OPINION HOLDS:  I.  We find the grounds for termination under Iowa Code section 232.116(1)(b) were shown by clear and convincing evidence.  II.  We conclude the father waived the issue of whether the State failed to make reasonable efforts to reunify the family or eliminate the need for removal.  III.  We agree with the juvenile court's decision not to grant the father additional time for reunification with the child.  IV.  We find that none of the exceptions to termination listed under section 232.116(3) apply in this case.  V.  We agree with the juvenile court that termination of the father's parental rights is in M.G.'s best interests.  We affirm. 

  

  

No. 08-1893.   [9-692]   SOLLAND v. SECOND INJURY FUND OF IOWA 

            Appeal from the Iowa District Court for Winnebago County, Christopher C. Foy, Judge.  REVERSED AND REMANDED.  Considered by Sackett, C.J., and Vogel and Potterfield, JJ.  Opinion by Potterfield, J.  (5 pages $2.50) 

  

            Employee appeals from the district court ruling affirming the denial of compensation from the second injury fund.  OPINION HOLDS: We reverse and remand in order to permit the agency to re-evaluate the evidence in light of Gregory v. Second Injury Fund, ____ N.W.2d ____ (Iowa 2010), and Second Injury Fund v. Kratzer, ___ N.W.2d ___ (Iowa 2010), and to make specific findings as to Solland's asserted qualifying injuries.  We reverse the district court's ruling approving the assessment of costs by the commissioner.  We remand the assessment of costs to the commissioner for redetermination of the costs.  Costs on appeal are assessed to both parties equally.  

  

  

No. 09-0113.   [9-909]   STATE v. TYERMAN 

            Appeal from the Iowa District Court for Story County, James B. Malloy, District Associate Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Potterfield and Mansfield, JJ.  Opinion by Potterfield, J.  (29 pages $14.50) 

  

            Brandon Tyerman appeals from his convictions for stalking, going armed with intent, and vehicle burglary.  He now appeals, contending: (1) the district court abused its discretion when admitting evidence of prior bad acts; (2) the district court abused its discretion in failing to give a cautionary instruction regarding the protective order; (3) Tyerman was denied effective assistance of counsel when his former attorney revealed the location of the handgun; (4) prosecutorial misconduct infected the trial with unfairness; (5) there is insufficient evidence to support the convictions; (6) the district court abused its discretion in admitting hearsay evidence; and (7) the cumulative effect of trial errors deprived him of due process.  OPINION HOLDS: The district court did not abuse its discretion when admitting evidence of prior bad acts or in failing to give a cautionary instruction regarding the protective order.  We preserve for possible postconviction proceedings defendant's claim that his former counsel was ineffective for disclosing information in violation of the attorney-client privilege.  The defendant did not preserve his claims of prosecutorial misconduct.  Substantial evidence supports the convictions of stalking, going armed with intent, and burglary.  The district court did not abuse its discretion in admitting evidence of a text message from a 319 telephone number.  We reject defendant's claim that cumulative error deprived him of a fair trial. 

  

  

No. 09-1061.   [9-1065]   MARRIAGE OF MADSEN 

            Appeal from the Iowa District Court for Muscatine County, J. Hobart Darbyshire, Judge.  REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.  Heard by Vaitheswaran, P.J., and Potterfield and Mansfield, JJ.  Opinion by Potterfield, J.  (8 pages $4.00) 

  

            Randall Madsen appeals from the district court's denial of his application for temporary injunction and oral motion for order nunc pro tunc, seeking to conform a retirement benefits order to reflect the court's original intent as evidenced in the dissolution decree.  OPINION HOLDS: Because Randall's application for an order nunc pro tunc requested a correction in the retirement benefits order to reflect the court's clear intent in the dissolution decree to give each ex-spouse half of Randall's retirement plan, including gains and losses incurred before distribution, it should have been granted.      

  

  

No. 09-0562.   [0-028]   CHRISTENSON v. FIRST NATIONAL BANK 

            Appeal from the Iowa District Court for Chickasaw County, Richard D. Stochl, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mansfield, JJ.  Opinion by Potterfield, J.  (5 pages $2.50) 

  

            Harvey Christenson appeals from the district court's dismissal of his suit as sanction for failing to comply with discovery orders.  OPINION HOLDS: The district court concluded Christenson's "actions in failing to timely respond to discovery and his actions in failing to give credible evidence to be willful and done for the sole purpose of interfering with the judicial process."  The finding is supported by substantial evidence and here justifies dismissal as a discovery sanction.  We therefore affirm. 

  

  

No. 09-1161.   [0-041]   NIELSEN v. DISTRICT COURT 

            Appeal from the Iowa District Court for Polk County, James D. Birkenholz and Colin J. Witt, District Associate Judges.  WRIT SUSTAINED.  Considered by Vaitheswaran, P.J., and Potterfield and Mansfield, JJ.  Opinion by Potterfield, J.  (6 pages $3.00) 

  

            Jason Nielsen argues the district court violated due process, the Iowa Code, and the Iowa Rules of Criminal Procedure by setting aside the final sentence and judgment without notice or opportunity to be heard after accepting a binding plea.  Nielsen further asserts the district court had no factual basis on which to set aside the judgment and sentence, and the resentencing proceeding did not cure the errors.  OPINION HOLDS: I. The record does not support a finding that the district court imposed an agreed upon sentence pursuant to a conditional plea agreement.  II. The district court did not have the authority to vacate Nielsen's sentence and order him detained without bond.  Further, on reconsideration of a sentence based on new information, the district court should base any new sentence on evidence establishing the facts of the new information, not unproved ex parte allegations.  

  

  

No. 09-0858.   [0-064]   ESTATE OF SIEFERING 

            Appeal from the Iowa District Court for Page County, Greg W. Steensland, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Mansfield, JJ.  Opinion by Potterfield, J.  (10 pages $5.00) 

  

            Estate heirs appeal from the probate court's construction of a provision of Evelyn Siefering's will.  The court found that the effect of its ruling was that all personal property in and about their home was an outright bequest to decedent's spouse, Wilbur Siefering.  The heirs contend the provision at issue should be construed as granting Wilbur the use of the basic furnishings of the house for so long as he lived there.  They also contend the court erred in failing to rule the list of purported bequests of personal property was invalid.  OPINION HOLDS:  We agree with appellants that Evelyn intended Wilbur to have the benefit of the household items stated for the limited time "he continued to reside in the home."  We further conclude Evelyn's list purportedly reserving some items of personal property as "hav[ing] been spoken for" fails to comply with statutory requirements of Iowa Code section 633.276 (2007).  We reverse and remand for further proceedings consistent with this opinion. 

  

  

No. 10-0067.   [0-107]   IN RE M.M. 

            Appeal from the Iowa District Court for Polk County, Joe E. Smith, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mansfield, JJ.  Opinion by Potterfield, J.  (6 pages $3.00) 

  

            A mother appeals the termination of her parental rights.  OPINION HOLDS: The mother does not dispute that the grounds for termination under sections 232.116(1)(d) and (h) exist.  Moreover, termination is in the best interests of the child, and we find no factor outweighs the child's need for permanency.  We therefore affirm.