May 2019 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Polk County, Heather L. Lauber, District Associate Judge.  SENTENCES AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vogel, C.J., Bower, J., and Scott, S.J.  Opinion by Scott, S.J. (5 pages)

            Thomas Rawls Jr. appeals the sentences imposed on his convictions of five criminal counts.  He argues the district court abused its discretion in ordering the prison sentences on all counts to be served consecutively and erred in ordering him to reimburse the State for court-appointed attorney fees as restitution without first properly determining his reasonable ability to pay the same.  OPINION HOLDS:  We find no abuse of discretion in the district court’s imposition of consecutive sentences.  We conclude the court erred in determining Rawls possessed the reasonable ability to pay court-appointed attorney fees as restitution because the amount for the same was not before the court.  We vacate the portions of the district court’s sentencing order concerning restitution and remand the case to the district court to order restitution consistent with the supreme court’s ruling in State v. Albright, ___ N.W.2d ___, 2019 WL 1302384 (Iowa 2019). 

            Appeal from the Iowa District Court for Linn County, Mary E. Chicchelly, Judge.  AFFIRMED ON APPEAL AND CROSS-APPEAL.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (10 pages)

            Former spouses appeal and cross-appeal the district court’s reduction of the husband’s alimony payments.  Both also request appellate attorney fees.  OPINION HOLDS: The former wife’s move to full-time employment and the tripling of her salary constitutes a substantial change in circumstances, and considering other relevant factors, we affirm the district court’s decision to reduce the alimony obligation.  We award the former wife appellate attorney fees. 

            Appeal from the Iowa District Court for Johnson County, Mary E. Howes, Judge.  REVERSED AND REMANDED.  Heard by Vogel, C.J., and Doyle and Tabor, JJ.  Opinion by Tabor, J.  (14 pages)

            Maxwell Alberhasky (Max) appeals the district court’s dismissal of Max’s claim his father, George Rodney Alberhasky (Rod), breached his fiduciary duty in managing assets left to him by his grandmother.  OPINION HOLDS: Because we conclude Max’s petition satisfied our liberal notice-pleading standards, we reverse the district court’s grant of Rod’s motion to dismiss for failure to state a claim upon which relief can be granted.

            Appeal from the Iowa District Court for Johnson County, Chad A. Kepros, Judge.  AFFIRMED.  Heard by Vogel, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (7 pages)

Teresa Sladek appeals the denial of her application for unemployment benefits, challenging the Employment Appeal Board’s determination that she voluntarily quit her employment with temporary services employer Kelly Services USA, LLC without good cause attributable to the employer.  OPINION HOLDS: Like the district court, we affirm the decision of the Employment Appeal Board.

            Appeal from the Iowa District Court for Lee (South) County, John M. Wright and Mary Ann Brown, Judges.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.  Opinion by Vaitheswaran, P.J. (4 pages)

            Following a guilty plea, Timothy Smeltser appeals his sentence, arguing (1) “the district court erred in ordering [him] to reimburse the State for court costs and correctional fees without first considering his reasonable ability to pay such restitution” and (2) “the sentencing court abused its discretion” in considering facts that were “unsupported by the record.”  OPINION HOLDS: We affirm all portions of the sentencing and post-sentencing orders except that portion of the sentencing order imposing correctional fees and court costs.  Applying State v. Albright, 925 N.W.2d 144, 161 (Iowa 2019), we vacate those portions of the orders and remand for receipt of the final restitution plan and consideration of Smeltser’s reasonable ability to pay.

            Appeal from the Iowa District Court for Polk County, Paul Scott, Judge.  REVERSED AND REMANDED.  Considered by Doyle, P.J., Mullins, J., and Danilson, S.J.  Opinion by Doyle, P.J.  Dissent by Mullins, J.  (10 pages)

            Anita Gumm appeals the denial of her petition for judicial review upholding the Workers’ Compensation Commissioner’s denial of her petition asserting she sustained a cumulative workplace injury.  OPINION HOLDS: We disagree with the agency and district court that Gumm was required to establish she sustained a distinct and discreet disability to recover on a cumulative-injury claim under the circumstances presented.  Under Floyd v. Quaker Oats, 646 N.W.2d 105, 108 (Iowa 2002), Gumm’s showing of an aggravation of her injury was sufficient to establish a cumulative injury.  Accordingly, we reverse the district court’s denial of Gumm’s petition for judicial review and remand to the commissioner.  DISSENT ASSERTS: I respectfully dissent because I do not believe the Floyd case authorizes Gumm to pursue a cumulative injury claim after a successful resolution of a claim for an underlying injury.

            Appeal from the Iowa District Court for Johnson County, Jason A. Burns, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (5 pages)

            Tyler Ferguson appeals the district court’s revocation of his probation, contending the court failed to consider the mitigating circumstances surrounding his probation violation.  OPINION HOLDS: Because the court properly exercised its discretion in viewing the new driving offense as a sufficient reason to impose judgment, we affirm.

            Appeal from the Iowa District Court for Black Hawk County, Patrice Eichman, District Associate Judge.  SENTENCE VACATED AND REMANDED FOR RESENTENCING.  Considered by Vogel, C.J., Bower, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (4 pages)

            Dean Geary appeals from judgment and sentence entered upon his written plea of guilty to assault causing bodily injury or mental illness.  OPINION HOLDS: Geary was adequately advised of the need to file a motion in arrest of judgment.  Having filed no motion in arrest of judgment, Geary waived his right to challenge the guilty plea.  Because we are unable to determine whether the district court properly exercised its discretion in sentencing Geary, we vacate the sentence and remand for resentencing.

            Appeal from the Iowa District Court for Polk County, David May, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and Bower, JJ.  May, J., takes no part.  Opinion by Bower, J.  Dissent by Doyle, P.J.  (7 pages)

Jeramy Hollingshead appeals from the summary-judgment order dismissing his dramshop claim.  OPINION HOLDS: Because Hollingshead failed to substantially comply with Iowa Code section 123.29 (2015) notice requirements by failing to identify the proper licensee, summary judgment was proper.  DISSENT ASSERTS: Here, the notice sets out all the pertinent statutory requisites: plaintiff’s intention to bring a dramshop action and references to the date, place and circumstances causing the injury.  Although the notice’s reference to “Leonard LLC dba Misfits,” the former operator of the bar, as the insured, is in error, I do not believe it deems the notice to be fatally deficient as to content.  I would reverse the district court’s grant of summary judgment.

            Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi Wittig, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            Jennifer Lightfoot appeals the dismissal of her personal-injury action for failure to comply with initial disclosure requirements, claiming the district court abused its discretion.  OPINION HOLDS: We conclude the district court did not abuse its discretion in dismissing the petition as a sanction for the plaintiff’s repeated failure to comply with the disclosure requirements of Iowa Rule of Civil Procedure 1.500(1).

            Appeal from the Iowa District Court for Scott County, Mark D. Cleve and Henry W. Latham II, Judges.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Blane, S.J.  Opinion by Mullins, J. (11 pages)

            Darreon Draine appeals his conviction of willful injury causing serious injury.  He claims the district court should have ordered a competency evaluation and abused its discretion in denying his motion in arrest of judgment.  OPINION HOLDS: Draine failed to establish probable cause of his incompetency to warrant a competency evaluation.  The district court did not abuse its discretion in denying Draine’s motion in arrest of judgment because the plea proceeding showed Draine entered his plea knowingly and intelligently.  We affirm Draine’s conviction. 

            Appeal from the Iowa District Court for Pottawattamie County, Mark J. Eveloff, Judge.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.  Opinion by Vaitheswaran, P.J. (3 pages)

            Following a guilty plea, Randall Maresch appeals his sentence, arguing the district court erred in “assessing financial obligations to [him] without first making a constitutionally mandated determination of his reasonable ability to pay.”  OPINION HOLDS: Applying State v. Albright, 925 N.W.2d 144, 160–62 (Iowa 2019), we vacate that portion of the sentencing order imposing an obligation to immediately pay court costs and court-appointed attorney fees pending the completion of a final restitution order and a subsequent determination of Maresch’s reasonable ability to pay.