September 2019 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and May and Greer, JJ.  Opinion by Potterfield, P.J.  (9 pages)

            Dustin Truax appeals from the denial of his application for postconviction relief following his conviction of two counts of lascivious acts with a child.  He challenges an amendment to the trial information and urges us to find trial and appellate counsel ineffective.  OPINION HOLDS: Having considered each of Truax’s claims, we agree with the PCR court that no relief is warranted.  We affirm.

            Appeal from the Iowa District Court for Fayette County, John C. Bauercamper, Judge. REVERSED AND REMANDED.  Heard by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (14 pages)

            A dentist appeals a post-trial ruling following a jury verdict for his patient in a malpractice action.  While performing a molar extraction the surgical bur from dentist’s handpiece used during that extraction disappeared.  X-rays revealed the presence of the bur in the patient’s lung.  The patient’s lung was partially removed in an attempt to remove the surgical bur resulting in loss in lung capacity.  The district court allowed the patient to introduce expert testimony to establish the standard of care necessary during such a procedure.  The expert relied heavily upon a survey project to formulate her opinion in determining the standard of care.  OPINION HOLDS: Because of the missing foundation to establish that the facts and data derived from those surveys were “of a type reasonably relied upon by experts” in the dentist’s field in determining the standard of care, this hearsay evidence was not admissible under Iowa Rule of Evidence  5.703.  Because it was admitted, we reverse and remand for new trial. 

            Appeal from the Iowa District Court for Johnson County, Lars G. Anderson, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Mullins and Greer, JJ.  Opinion by Greer, J.  (3 pages)

            Jordan Holm appeals the denial of his application for postconviction relief.  OPINION HOLDS: We agree with the detailed ruling of the district court, and we affirm without further opinion.

            Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            A developer appeals the ruling of the district court, contending a seller breached certain real estate contracts.  OPINION HOLDS: We affirm the district court’s denial of the developer’s petition.

            Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.  AFFIRMED.  Heard by Potterfield, P.J., and Bower and Greer, JJ.  Opinion by Bower, J.  (17 pages)

            The Zoning Board of Adjustment of the City of Des Moines (Board) appeals after the district court sustained the writ of certiorari by which S & A 786, LLC, doing business as Downtown Pantry (Pantry), challenged the legality of the Board’s revocation of its conditional use permit (CUP).  OPINION HOLDS: Because we agree with the district court there is not substantial evidence to support the Board’s finding the Pantry’s operation had created a nuisance and the revocation of the CUP was arbitrary and capricious, we affirm.

            Appeal from the Iowa District Court for Scott County, Mark R. Lawson, Judge.  CONVICTION AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND REMANDED.  Considered by Potterfield, P.J., May, J., and Carr, S.J.  Opinion by Carr, S.J. (7 pages)

            Alan Ray Cassias appeals his conviction and sentence for false imprisonment and sexual abuse in the third degree.  He argues the district court erred in admitting phone records and in stating he may be assessed appellate attorney fees unless he requests a hearing to determine his reasonable ability to pay.  OPINION HOLDS: We find the phone records were hearsay but their admission was cumulative and no prejudice resulted.  Therefore, we affirm his conviction.  However, the provision regarding appellate attorney fees is erroneous, and we vacate that provision and remand for entry of a corrected sentencing order.

            Appeal from the Iowa District Court for Linn County, Kevin McKeever, Judge.  AFFIRMED IN PART AND REVERSED IN PART ON APPEAL; CONDITIONALLY AFFIRMED ON CROSS-APPEAL; AND REMANDED.  Heard by Doyle, P.J., Blane, S.J. and Lloyd, S.J.  Opinion by Doyle, P.J.  (26 pages)

            Olmstead Construction, Inc. (Olmstead Construction) and Otter Creek Investments, LLC (Otter Creek) both appeal following resolution of their contract dispute.  They challenge the district court’s determination of various contract terms that affect the damages, attorney fees, and interest awarded on Olmstead Construction’s breach-of-contract claim.  We must also determine whether the district court erred by refusing to foreclose on a mechanic’s lien.  OPINION HOLDS: I. Olmstead Construction is not entitled to the $48,150 the district court awarded for costs of the billed subcontractor electrical work that was not a cost under the contract.  Reducing the amount of the judgment awarded to Olmstead Construction on its breach-of-contract claim by this amount, we revise the judgment to award Olmstead Construction $115,245.84.  II. Because Olmstead Construction failed to prove the actual costs associated with use of the equipment it owns, we affirm the district court’s refusal to award damages on this basis.  III. Otter Creek was not required to make final payment until Olmstead Construction provided the requested documentation of its costs.  Because Otter Creek did not default under the agreement, Olmstead Construction is not entitled to an award of its attorney fees under the contract, and we reverse the award of $47,787.73 in attorney fees.  IV. Because damages were not complete at any specified time before the trial and the amount remained in controversy until the Court issued its final judgment, prejudgment interest is inappropriate.  We affirm the district court’s refusal to award Olmstead Construction prejudgment interest.  V. We conditionally affirm the denial of Olmstead Construction’s petition to foreclose on its mechanic’s lien and remand for further proceedings as directed. 

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (11 pages)

            Holger Goebel appeals after the district court’s denial of his motion for a new trial following a civil jury verdict in favor of Green Line Polymers, Inc. He argues (1) the court abused its discretion in (a) allowing expert opinion testimony from a non-expert witness, (b) allowing said testimony despite its alleged irrelevance, and (c) allowing Goebel to be questioned concerning specific instances of conduct that had little to no bearing on his character for truthfulness; and (2) “a new trial should be granted where cumulative errors in the record reasonably support the request for a new trial” and “contributed to the jury’s verdict contrary to the great weight of the evidence.”  OPINION HOLDS: We affirm the district court’s denial of Goebel’s motion for a new trial in its entirety. 

            Appeal from the Iowa District Court for Polk County, Carla Schemmel, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Vaitheswaran, P.J.  (8 pages)

            In this consolidated appeal of two involuntary civil commitment orders, J.S. contends the district court erred in (1) failing to terminate the proceedings and dismiss the applications on receipt of a physician’s report and (2) prohibiting him from possessing firearms.  OPINION HOLDS: We affirm the district court’s dismissal of the Iowa Code chapter 229 (2018) proceeding and the district court’s order referring J.S. to outpatient treatment for his chapter 125 substance-related disorder.  We reverse the district court’s imposition of the firearm prohibition in both orders and remand for entry of an order striking those prohibitions.

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED.  Heard by Potterfield, P.J., Greer, J., and Scott, S.J.  Opinion by Scott, S.J.  (11 pages)

            Todd Whitman appeals the district court’s denial of his motion for judgment notwithstanding the verdict and for a new trial following the jury verdict for Casey’s General Stores, Inc. and Casey’s Marketing Company (Casey’s).  OPINION HOLDS:  We find (1) the district court did not err in denying Whitman’s motion for judgment notwithstanding the verdict on his claim Casey’s improperly required him to take a drug test; (2) Whitman was not entitled to a new trial based on inconsistent verdicts; (3) Whitman is not entitled to a new trial based on improper jury instructions; and (4) the court did not abuse its discretion in awarding attorney fees.  We affirm the decision of the district court.

            Appeal from the Iowa District Court for Hamilton County, Timothy J. Finn, Judge.  REVERSED.  Heard by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (11 pages)

            A guardian ad litem appeals the district court’s order approving a gift from conservatorship funds.  The guardian ad litem argues the district court erred by failing to review the ward’s will to determine her testamentary intent.  The guardian ad litem further argues the gift was given without good cause to an organization that was neither a named testamentary beneficiary nor a beneficiary of lifetime donations and was not structured to maximize income-tax benefits.  OPINION HOLDS: A review of the ward’s will would have been relevant to the district court’s ultimate decision of whether good cause supported the gift but is not fatal.  On our de novo review, we find the evidence does not support a finding of good cause under Iowa Code section 633.668 (2018) to support the gift. 

            Appeal from the Iowa District Court for Fayette County, Margaret L. Lingreen, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (19 pages)

            A will contestant appeals the probate court’s rulings (1) dismissing the contestant’s petition in probate seeking to open an intestate estate for the decedent, (2) sustaining the petition of a beneficiary and proponent of the decedent’s 2011 will to probate the decedent’s will, and (3) sustaining the motion for a directed verdict on a claim of undue influence.  OPINION HOLDS:  Upon our review, we find the record evidence fully supports the probate court’s conclusion that the decedent was legally competent when he executed his will in 2011.  Consequently, even assuming without deciding the court should have placed the burden of proof upon the proponents of the decedent’s will to show the decedent had testamentary capacity to execute his will when it was executed, the will’s proponents met their burden.  We discern no abuse of discretion under the facts of the case concerning an expert’s testimony regarding the decedent’s competence, and we find no error in the court’s conclusion that the contestant failed to prove the decedent’s will resulted from undue influence.  Accordingly, we affirm the probate court’s rulings dismissing the contestant’s petition, sustaining a will proponent’s directed verdict as to the claim of undue influence, and sustaining another will proponent’s petition for probate of the decedent’s will.