July 2019 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Linn County, Mary E. Chicchelly (summary judgment) and Patrick R. Grady (foreclosure), Judges.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Mullins, P.J.  (14 pages)

            Sheree Smith-Martinez and Michael Martinez appeal the district court’s grant of summary judgment in favor of Wilmington in a mortgage-foreclosure action.  OPINION HOLDS: The court had both subject-matter and personal jurisdiction over Wilmington, as assignee from Wells Fargo, which initially petitioned for foreclosure.  We also find Wilmington was not required to file the note and mortgage documents with the foreclosure petition.  The court did not abuse its discretion by considering the motion for summary judgment by nonoral submission.  There are no genuine issues of material fact and summary judgment was therefore appropriate.  Finally, we find the court’s order requiring the Martinezes to post a supersedeas bond was within the court’s authority and the amount was not excessive.  We deny the request for appellate attorney’s fees.  Costs on appeal are assessed one-half to Sheree Smith-Martinez and one-half to Michael Martinez.

            Appeal from the Iowa District Court for Clinton County, Tom Reidel, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (15 pages)

            Jessie Jones appeals the denial of his application for postconviction relief (PCR) following his conviction of sexual abuse in the second degree.  Jones claims the PCR court abused its discretion in denying his application for the appointment of an expert to testify in his PCR hearing regarding the standard of professional conduct for attorneys.  Additionally, Jones argues his PCR application should have been granted because his trial counsel breached an essential duty by (1) failing to call an expert to emphasize the lack of rape-kit evidence; (2) failing to contest evidence of Jones’s DNA found on the complaining witness’s “wrong” underwear or explain the limitations to DNA evidence; (3) failing to challenge whether the jury panel was made up of a fair cross section of the community; (4) wrongly advising Jones regarding possible impeachment based on his prior convictions and, as a result, wrongly advising Jones not to testify in his own defense.  He asks that we consider the cumulative effect of trial counsel’s errors.  OPINION HOLDS: Because the PCR court did not abuse its discretion in denying Jones’s request for the appointment of another attorney to act as a legal expert regarding his claims of ineffective assistance and because Jones has not established any of his claims of ineffective assistance of trial counsel, we affirm the denial of his application for PCR.

            Appeal from the Iowa District Court for Black Hawk County, Rustin T. Davenport, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (6 pages)

            James Neuman appeals the dismissal of his lawsuit.  OPINION HOLDS: Although we could summarily dismiss the appeal based on Neuman’s violations of our appellate rules, we decline to do so.  We agree with the district court’s well-reasoned analysis and disposition of the case and affirm without further opinion, noting that we cannot grant Neuman the relief he requests even if he succeeded on appeal. 

            Appeal from the Iowa District Court for Des Moines County, Mark E. Kruse, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (16 pages)

            Devon Lukinich appeals the denial of his postconviction-relief (PCR) application.  He argues trial counsel provided ineffective assistance by (1) failing to have a ballistics expert testify; (2) failing to object when the prosecutor improperly stated during closing arguments that BB guns are dangerous weapons “under the law”; (3) failing to object to instructions and arguments that the shotguns stolen during the robberies met the “dangerous weapon” requirement; and (4) failing to present an expert witness at sentencing regarding Lukinich’s brain maturity.  OPINION HOLDS:  Trial counsel was not ineffective. No evidence suggests a different ballistics expert’s testimony would be meaningfully different from the testimony offered by the State’s expert.  No prejudice resulted from failing to object to the prosecutor’s statements during closing arguments.  Trial counsel did not breach an essential duty by failing to object to the shotgun-related jury instructions.  Trial counsel did not breach an essential duty by failing to hire a brain maturity expert witness because Lukinich was not a juvenile at the time the robberies occurred.  We affirm.

            Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Tabor, J.  (4 pages)

            Darrell McBride appeals the district court’s denial of his motion to quash the district court’s income-withholding order related to past due child support obligations, asserting he was denied due process and equal protection.  OPINION HOLDS:  Because McBride failed to preserve his constitutional claims, we affirm.

            Appeal from the Iowa District Court for Carroll County, William C. Ostlund, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (13 pages)

            Nora Dirkx appeals the district court’s decree dissolving her marriage to Daniel Dirkx, challenging the district court’s calculation of their respective incomes, as well as its fusing of the child support and alimony awards.  OPINION HOLDS: Because we find the support orders to be inequitable, we remand for the court to amend the decree to fix traditional spousal support at $900 per month and to recalculate Daniel’s child support obligation.  We affirm the decree in all other respects.

            Appeal from the Iowa District Court for Fayette County, Richard D. Stochl, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.  Opinion by Greer, J.  (8 pages)

            A postconviction-relief applicant argues his trial counsel was ineffective for failing to adequately advise him on his right to testify in his own defense and for failing to keep him informed on the defense strategy, thereby depriving him of the ability to meaningfully participate in his defense.  The district court denied the application for postconviction relief.  OPINION HOLDS: On our review, we conclude trial counsel did not fail to perform an essential duty by advising his client not to testify or by exercising his judgment in choosing the defense strategy.

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.  Opinion by Tabor, J.  (13 pages)

            Former Polk County Sergeant Dan Charleston appeals the district court decision affirming the Polk County Civil Service Commission’s (commission) affirmance of the Sheriff’s termination of Charleston’s employment.  OPINION HOLDS: Because we find substantial evidence supporting the commission’s decision, and because Charleston did not present direct and compelling evidence to overcome the presumption of honesty and integrity in the commissioners, we affirm the decision of the district court.

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (24 pages)

            Former spouses appeal and cross-appeal the financial provisions of their dissolution-of-marriage decree.  Trustee appeals the dismissal of claims against the husband relating to the wife’s trust.  OPINION HOLDS: We find Carl Matherly created a resulting trust in favor of his daughter, MaryBeth Slezak, when he transferred the assets of her trust into an investment account without her consent.  The resulting trust is not marital property and not subject to the court’s division of the marital estate.  We find the trial court’s division of the marital estate equitable, taking into consideration the factors under Iowa Code section 598.21(5) (2016) and the circumstances in this case.  We further find Steven Matherly’s claims against Carl relating to Maribel Matherly’s trust are barred under Iowa Code section 633A.4506.  Based upon these findings, we affirm the trial court’s decision in its entirety.  We decline to award appellate attorney fees.  Costs on appeal are assessed one-third to Maribel’s estate, one-third to Carl, and one-third to the Maribel Matherly Trust.

            Appeal from the Iowa District Court for Crawford County, Steven J. Andreasen, Judge.  REVERSED AND REMANDED.  Heard by Doyle, P.J., and Tabor and Mullins, JJ.  Opinion by Tabor, J.  (18 pages)

            Live-trap manufacturer N.P.Z., Inc. (ZTraps) appeals the district court’s dismissal of its suit against Ultra Image Powder Coating (Altra), arguing the court erroneously concluded it lacked specific personal jurisdiction over Altra.  OPINION HOLDS: Because Altra purposely directed activities at Iowa, and because the litigation arises out of or relates to those activities, Altra’s contacts with Iowa are sufficient to subject it to personal jurisdiction.  And we do not believe subjecting Altra to suit in Iowa offends traditional notions of fair play and substantial justice.  Accordingly, we reverse the district court’s dismissal and remand for further proceedings.

            Appeal from the Iowa District Court for Fayette County, Richard D. Stochl and Margaret L. Lingreen, Judges.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (9 pages)

            Dennis Langreck appeals the district court’s decision ordering him to remove a building and pay damages.  OPINION HOLDS: We conclude the district court did not err by granting summary judgment to the City on Langreck’s counterclaims for quiet title or adverse possession.  We also conclude the court did not err in granting an injunction to the City requiring Langreck to move a shed.  We affirm the decision of the district court.

            Appeal from the Iowa District Court for Johnson County, Kevin McKeever, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Vogel, S.J., and Gamble, S.J.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Thaddeus (T.J.) Zimmerman appeals the physical care provisions of the decree dissolving his marriage to Jamie Zimmerman.  OPINION HOLDS: We decline to modify the physical care arrangement or award T.J. additional visitation.  Because T.J. seeks a modification of the child support award only if we modify the physical care arrangement, we need not address this issue.  We affirm the dissolution decree in its entirety.