January 2019 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Winnebago County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED IN PART AND REVERSED IN PART ON BOTH APPEALS.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  (8 pages)

            A mother and father separately appeal a permanency order involving their two children.  They contend the district court (1) should not have denied their request to cancel a no-contact order preventing interaction with their children; (2) should have lifted a sequestration order which prohibited disclosure of the children’s locations; and (3) should have concluded that the department of human services failed to make reasonable efforts toward reunification.  OPINION HOLDS: We affirm all aspects of the permanency order except the portion denying the parents’ motion to lift the sequestration order.  We reverse that portion of the order.

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (3 pages)

            A mother challenges the permanency review order in a child-in-need-of-assistance proceeding.  OPINION HOLDS: The juvenile court had the authority to transfer custody of the child to his father, the juvenile court was not required to find a material and substantial change in circumstances before transferring custody, and the custody transfer is in the best interest of the child.

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, C.J.  (2 pages)

            A father appeals the permanency order granting the mother an additional three months to work toward reunification with their children.  OPINION HOLDS: On our de novo review, we find the district court did not err in granting a three-month extension.  We therefore affirm the permanency order without further opinion. 

            Appeal from the Iowa District Court for Story County, Stephen A. Owen, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (10 pages)

            A mother and father separately appeal the termination of parental rights.  OPINION HOLDS: Because we find clear and convincing evidence that grounds for termination of the parents’ parental rights were established under section 232.116(1) paragraphs (f) and (h) (2018), termination of the parents’ parental rights is in the children’s best interests, and exceptions to termination do not apply here, we affirm the juvenile court’s order terminating the parents’ parental rights.

            Appeal from the Iowa District Court for Clayton County, Linnea M.N. Nicol, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (7 pages)

            A mother and father separately appeal the termination of their parental rights under Iowa Code section 232.116(1)(h) (2018), arguing the State failed to prove the child could not be returned home and termination was not in the child’s best interests because of the close parent-child relationship.  OPINION HOLDS: Finding clear-and-convincing proof the child could not be returned to the home at the time of termination and the closeness of the parent-child relationships does not weigh against termination, we affirm. 

            Appeal from the Iowa District Court for Woodbury County, Mary L. Timko, Associate Juvenile Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (2 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: The mother’s failure to argue on appeal waives error.  Consequently, we affirm the termination of her parental rights. 

            Appeal from the Iowa District Court for Black Hawk County, Daniel L. Block, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (5 pages)

            A father appeals the juvenile court’s termination of his parental rights.  OPINION HOLDS: We find termination of the father’s parental rights, not the establishment of a guardianship, is in the child’s best interest.  We affirm the juvenile court.

            Appeal from the Iowa District Court for Johnson County, Mary E. Chicchelly, Judge.  AFFIRMED.  Heard by Potterfield, P.J., Doyle, J., and Danilson, S.J.  Opinion by Doyle, J.  (5 pages)

            The petitioners appeal from the order granting summary judgment on their action to enjoin the American Arbitration Association (AAA) from arbitrating a contract dispute.  OPINION HOLDS: Because the petitioners fall short of showing the “clear absence” of jurisdiction required to divest the AAA of its arbitral immunity, the district court properly granted summary judgment in the AAA’s favor. 

            Appeal from the Iowa District Court for Polk County, Robert Blink, Judge.  REVERSED AND REMANDED.  Heard by Potterfield, P.J., Doyle, J., and Danilson, S.J.  Opinion by Potterfield, P.J.  (10 pages)

            Kenneth Heard appeals from his conviction for murder in the first degree.  Heard argues the district court erred in denying his motion to compel testimony from a witness, his sentence is illegal because the jury did not specifically find him to be over eighteen at the time of the offense, and the district court erred in denying his motion for a new trial because the jury verdict went against the weight of the evidence.  OPINION HOLDS: The district court violated Heard’s right to compulsory process when it failed to determine the extent or validity of a witness’s assertion of his Fifth Amendment privilege. 

            Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L. Larson, Judge.  AFFIRMED.  Heard by Potterfield, P.J., Doyle, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (16 pages)

            Dr. Roy Abraham and Miller Orthopedic appeal from the district court’s denial of their motion for summary judgment.  In this medical malpractice case, the defendants contend they are entitled to judgment as a matter of law because the plaintiff’s expert witness is not qualified under Iowa Code section 147.139 (2015) to offer the sole standard of care opinion he offered, and because the expert was “unable to opine that the alleged breach of the standard of care more likely than not caused the damages at issue.”  The defendants also contend they are entitled to judgment on wrongful death damages because there is no evidence the alleged negligence caused the wrongful death.  OPINION HOLDS: Viewing the record of the expert’s qualifications in the light most favorable to the non-moving party, we conclude, at this juncture, the expert is qualified to testify whether Dr. Abraham breached the standard of care and was negligent in failing to culture the post-surgery infection to identify the organism that caused the infection, and this failure resulted in ineffective treatment.  We agree with the district court that the plaintiff will still be subject to meeting its burden on the expert’s qualifications at the time of trial.  Furthermore, we conclude the expert’s deposition testimony is sufficient to generate a jury question on causation and whether the alleged negligence caused the wrongful death is a question of fact for the jury.  We affirm the district court’s denial of summary judgment.

            Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.  AFFIRMED.  Heard by Potterfield, P.J., Doyle, J., and Danilson, S.J.  Opinion by Potterfield, P.J.  (19 pages)

            UnityPoint Health Cedar Rapids, doing business as St. Luke’s Hospital, appeals from the district court’s ruling on judicial review affirming the State Health Facilities Council’s decision to issue a Certificate of Need (CON) to Mercy Hospital Cedar Rapids, which allows Mercy to establish its own open-heart surgical program in its Cedar Rapids hospital.  On appeal, St. Luke’s maintains the Council’s decision to grant the CON should be reversed because the Council’s interpretation of the minimum utilization rule—found in Iowa Administrative Code rule 641-203.2(3)(a)(1)—as a guideline rather than a mandate is either erroneous, see Iowa Code § 17A.19(10)(c) (2015), or “irrational, illogical, or wholly unjustifiable,” see Iowa Code § 17A.19(10)(l).  Additionally, St. Luke’s challenges whether some of the findings made by the Council are supported by substantial evidence in the record, see Iowa Code § 17A.19(10)(f), including some findings that are required by Iowa Code section 135.64 before a CON can be issued.  OPINION HOLDS: We agree with the district court that the Council is vested with the power to interpret rule 641-203.2(3)(a)(1) and its interpretation of the rule as a guideline is not illogical, irrational, or wholly unjustifiable.  Additionally, the Council’s necessary findings pursuant to Iowa Code section 135.64(2) are supported by substantial evidence in the record, and its decision to grant the CON is not irrational, illogical, or wholly unjustifiable.  We affirm the district court’s ruling on judicial review.

            Appeal from the Iowa District Court for Madison County, Bradley McCall, Judge.  AFFIRMED.  Considered by Vogel, P.J., Tabor, J., and Danilson, S.J.  Opinion by Vogel, P.J.  (7 pages)

            Kelly Kohrs-Manriques brought suit against Tamelia Brown, as owner of a tavern, and Lowell Bence, as mortgagor of the property.  Kohrs-Manriques claimed Brown’s transfer of the property to Bence was a fraudulent conveyance, designed to place the property out of her reach as a judgment creditor.  The district court considered the factors of a fraudulent conveyance and found Kohrs-Manriques did not establish, by clear and convincing evidence, the transfer was fraudulent.  OPINION HOLDS: We find the district court applied the correct standard and Kohrs-Manriques had not proved by clear and convincing evidence that a fraudulent conveyance occurred.