2018 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Muscatine County, Mark R. Lawson, Judge.  AFFIRMED.  Considered by Danilson, C.J., Vogel, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (16 pages)

            Tomas Tovar appeals his conviction for sexual abuse in the third degree.  He challenges the sufficiency of the evidence supporting conviction, his trial counsel’s failure to specifically challenge the sufficiency of the evidence of an alternative theory, the district court’s refusal to require unanimity amongst the jurors’ findings regarding which alternative theory supported conviction, and the inclusion of instructions for lesser included offenses.  OPINION HOLDS: Sufficient evidence supported Tovar’s conviction under both alternative theories.  Because the alternative theories are not repugnant to each other, unanimity among the jurors’ findings was not required.  Because Tovar was committed of the greater offense, he was not prejudiced by the inclusion of instructions for lesser included offenses.

            Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (9 pages)

            Montez Shortridge appeals from the district court’s denial of his application for postconviction relief.  He contends (1) the State suppressed exculpatory evidence and (2) he is “entitled to an ex parte hearing for the appointment of an expert.”  OPINION HOLDS: We affirm the district court’s denial of Shortridge’s second postconviction-relief application and motion.

            Appeal from the Iowa District Court for Dubuque County, Monica L. Ackley, Judge.  AFFIRMED.  Heard by Danilson, C.J., McDonald, J., and Blane, S.J.  Opinion by McDonald, J.  Special Concurrence by Blane, S.J.  (8 pages)

            The city of Farley appeals the district court’s reduction of certain special assessments.  OPINION HOLDS: Because the special assessments exceeded the special benefits received by property owners, the district court properly reduced the special assessments to not exceed the special benefits.  SPECIAL CONCURRENCE ASSERTS: The City’s arguments justifying their assessment to the abutting property owners do not stand up to scrutiny.  First, a purely "lineal foot" assessment does not comport with the law.  Second, the City failed to establish the project conferred special benefit to the property to justify the assessments.  And finally, the court correctly relied upon the expert’s formula for calculating the assessment. 

            Appeal from the Iowa District Court for Woodbury County, John D. Ackerman, Judge.  REVERSED.  Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, P.J.  (8 pages)

            The Security National Bank of Sioux City, Iowa (SNB), was appointed personal representative of Roger Rand’s estate and filed a petition for replevin against multiple defendants.  SNB requested immediate possession of farm-related personal property upon which Rand held a perfected security interest.  A hearing was held, and the district court issued two separate rulings, one of which is the subject of this appeal.  OPINION HOLDS: We find, even assuming Frank/BJM and Rand had an implied course of dealing, Frank’s disposition of the tractors by gifting the equity to Matthew was not within the prior course of dealing.

            Appeal from the Iowa District Court for Johnson County, Paul D. Miller, Judge.  AFFIRMED IN PART AND REVERSED IN PART ON APPEAL; AFFIRMED ON CROSS APPEAL.  Heard by Vogel, P.J., Tabor, J., and Carr, S.J.   Opinion by Tabor, J.  (15 pages)

            Mutual insurance company Wellmark, Inc. (Wellmark) appeals the district court’s award of damages and attorney fees for Wellmark’s breach of its contract with T. Zenon Pharmaceuticals (d/b/a and hereinafter referred to as Pharmacy Matters).  OPINION HOLDS: Because the district court’s calculation of damages was supported by sufficient evidence and properly awarded interest, we affirm the damage award.  But because common-law attorney fees were not justified, we reverse with respect to attorney fees and remand for entry of judgment consistent with our opinion.

            Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson, Judge.  AFFIRMED AS MODIFIED.  Heard by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (18 pages)

            William (Bill) Grask appeals from the economic provisions of the decree dissolving his marriage to Anne Grask.  OPINION HOLDS: I. With respect to the property distribution, we affirm the transfer of the children’s college savings accounts into Anne’s name.  We also affirm the award of interest on the cash payment Bill is required to pay Anne to compensate her for her one-half interest in Bill’s dental practice.  Because the record supports the finding that Bill dissipated $106,250 in marital assets, we affirm the award $53,125 to compensate Anne for the dissipation.  However, we modify the decree to require each party to pay one-half of their 2015 state and federal tax liability and to reimburse Bill the principal on any mortgage payments he makes in advance of the marital home’s sale.  Although the overall property distribution provides Anne with approximately $20,000 more in assets, it is equitable.  II. Taking into consideration Anne’s needs and Bill’s ability to pay, we agree that an award of $3000 per month in traditional alimony is appropriate under the facts of this case.  III. We remand to the district court to determine the amount of child support specified by the present day child support guidelines.  IV. We modify the award of trial attorney fees, reducing it from $40,000 to $30,000.  V. We decline to award Anne appellate attorney fees.

            Appeal from the Iowa District Court for Audubon County, Greg W. Steensland, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (12 pages)

            Dwayne and Patricia Sunberg initiated a lawsuit against Audubon County, the Audubon County Board of Supervisors, and the Audubon County Soil and Water Commission (collectively, “the defendants”) seeking damages for the defendants’ alleged failure to properly maintain a soil and water conservation structure located on the Sunbergs’ property.  On appeal, the Sunbergs claim the defendants have a statutory, contractual, and common law duty to maintain the structure by removing accumulated silt or taking action to reduce the rate the silt would accumulate.  They assert the district court was wrong to conclude the defendants did not owe a duty to the Sunbergs to maintain the structure or, alternatively, even if the defendants did owe a duty to maintain, their inaction allowing the accumulation of silt was not a breach of the duty to maintain.  OPINION HOLDS: The defendants have neither a statutory, common law, nor contractual duty to maintain structure 28-3.  Even if they did have a contractual duty to maintain the structure, that duty would not require them to remove accumulated silt or take action to reduce the rate the silt would accumulate, as the structure was designed to accumulate silt and is functioning properly.  We affirm the district court’s dismissal of the Sunbergs’ lawsuit.

           Appeal from the Iowa District Court for Pottawattamie County, James M. Richardson, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J. (9 pages)

           Donald Dockery appeals the denial of his application for postconviction relief (PCR).  He contends: (1) his PCR counsel rendered ineffective assistance in not raising plea counsel’s failure to challenge the factual bases underlying the crimes of third-degree theft and ongoing criminal conduct and (2) the PCR court erred in denying relief on the claim that plea counsel was ineffective in failing to challenge the factual bases for another component of the theft charges.  OPINION HOLDS: We find plea counsel rendered ineffective assistance in failing to challenge the factual bases underlying Dockery’s guilty pleas to third-degree theft and PCR counsel rendered ineffective assistance in failing to recognize and raise the same issue in the PCR proceedings.  As such, we reverse the denial of PCR.  We remand the case to the district court to enter judgment in favor of Dockery finding plea counsel rendered ineffective assistance.  The district court shall order Dockery’s sentences be set aside and invalidate the entire plea agreement by vacating all convictions.  Subject to the provisions of Iowa Code section 802.9, the State may reinstate any charges dismissed as part of the plea agreement and file any additional charges supportable by the available evidence.  Based on our disposition, we find it unnecessary to consider Dockery’s remaining challenges. 

            Appeal from the Iowa District Court for Pottawattamie County, Richard H. Davidson, Judge.  AFFIRMED.  Considered by Danilson, C.J., Potterfield, J., and Scott, S.J.  Opinion by Scott, S.J.  (8 pages)

            Martin Hiatt appeals the district court’s denial of his application seeking postconviction relief from his convictions of three counts of second-degree sexual abuse and four counts of indecent contact with a child.  OPINION HOLDS: Hiatt has not shown he received ineffective assistance of counsel or provided any other basis to support his request for postconviction relief.  We affirm the district court’s decision denying Hiatt’s application for postconviction relief.

            Appeal from the Iowa District Court for Keokuk County, Joel D. Yates, Judge.  AFFIRMED.  Heard by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Danilson, C.J.  (12 pages)

            Steven Sieren appeals from a judgment entered against him in this suit by Southern Iowa Bin Builders, LLC to recover payment on a dishonored check.  OPINION HOLDS: Because we give weight to the district court’s credibility assessments and the trial court’s findings are supported by substantial evidence, we affirm.

            Appeal from the Iowa District Court for Johnson County, Paul D. Miller, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (4 pages)

            Defendant Stephon Curry challenges his sentence for conviction of robbery in the second degree.  OPINION HOLDS: The court did not abuse its discretion in imposing Curry’s sentence.  The court did not commit legal error by failing to determine Curry’s ability to pay court costs.

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (8 pages)

            Brenna Doherty appeals an order for new trial granted to Rebecca Coffin following a jury verdict finding Doherty was not at fault for an automobile accident.  OPINION HOLDS:  The jury instruction on sudden emergency was not applicable in the case and its inclusion was prejudicial.  We affirm the district court order for a new trial.