2019 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Hamilton County, Timothy J. Finn, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Potterfield, P.J., and Doyle and May, JJ.   Opinion by Potterfield, P.J. (6 pages)

            On appeal after resentencing, Willie Werner argues the resentencing court abused its discretion by (1) using an outdated presentence investigation report, (2) imposing consecutive sentences without stating adequate reasons on the record, and (3) ordering him to reimburse the state for attorney fees without determining the amount of restitution or his ability to pay.  OPINION HOLDS: We affirm the district court’s decision to impose a sixty-year term of incarceration; however, we reverse the part of the sentence regarding restitution and remand the case for resentencing consistent with this opinion and State v. Albright, 925 N.W.2d 144, 159 (Iowa 2019).

            Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Doyle, J. (4 pages)

            David Levy Jr. appeals the sentence imposed following his conviction of assault on a jailer causing bodily injury.  OPINION HOLDS: I. The district court did not abuse its discretion in ordering Levy’s sentence run consecutive to his sentence in another case.  II. In accordance with State v. Albright, 925 N.W.2d 144, 158-61 (Iowa 2019), we vacate the portion of the sentencing order assessing costs of the action, surcharges, and fees to Levy pending completion of a final restitution order and assessment of Levy’s reasonable ability to pay.  III. We also vacate the portion of the sentencing order requiring Levy to request a hearing on his reasonable ability to pay appellate attorney fees or be assessed the full amount and remand for entry of a corrected order.

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Vogel, S.J., and Scott, S.J.  Opinion by Vaitheswaran, P.J.  (3 pages)

            James Moriarty seeks further judicial review of a final agency decision terminating his indigent-defense contract with the State Public Defender.  OPINION HOLDS: Like the district court, we affirm the agency decision in its entirety.

              Appeal from the Iowa District Court for Johnson County, Lars G. Anderson, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (10 pages)

            Ronald N. McDonald appeals from the district court’s judicial review ruling upholding the workers’ compensation commissioner’s denial of permanent disability benefits.  OPINION HOLDS: Because we find no abuse of discretion in the commissioner’s evidentiary ruling and there is substantial evidence to support the commissioner’s determination that McDonald had not proved causation, we affirm the district court in upholding the commissioner’s findings. 

            Appeal from the Iowa District Court for Scott County, Stuart P. Werling, Judge.  AFFIRMED.         Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Mullins, P.J.  (12 pages)

            David Almeida appeals the entry of a domestic-abuse protective order under Iowa Code chapter 236 (2016) in favor of Heather Almeida.  OPINION HOLDS: We affirm the district court’s entry of the protective order.

            Appeal from the Iowa District Court for Dubuque County, Monica L. Zrinyi Wittig, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.  Opinion by Tabor, J.  (11 pages)

            Kristin Brosnan appeals the district court’s grant of summary judgment in her negligence action against Aragon Tap and Stan and Myra Woodman, claiming the court improperly resolved a credibility dispute between conflicting evidence.  OPINION HOLDS: Because uncontroverted video evidence demonstrated the absence of a factual dispute, and Brosnan is unable to prove the causation element of her negligence claim, we affirm.

            Appeal from the Iowa District Court for Linn County, Chad A. Kepros, Judge.  AFFIRMED.  Considered by Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Bower, J.  (11 pages)

            Monge & Associates, P.C., appeals from the district court’s order granting summary judgment in favor of GreatAmerica Financial Services Corporation in this breach-of-contract action.  OPINION HOLDS: Because no genuine issue of material fact remains for trial, GreatAmerica is entitled to judgment as a matter of law.

            Appeal from the Iowa District Court for Scott County, Joel W. Barrows and Tom Reidel, Judges.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.   Opinion by Potterfield, P.J. (5 pages)

            Brandon Ruiz appeals from his conviction of sexual abuse in the second degree following a trial to the bench.  Ruiz maintains the district court erred by allowing the State to amend the trial information to add wholly new or different charges after the speedy-indictment deadline had passed.  OPINION HOLDS: The court’s decision to allow the State to amend the trial information to include six more counts than the initial trial information was in error, but the error was harmless since Ruiz was convicted of just one count—as he was initially charged.  We affirm.

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (3 pages)

            Dave Tomlinson appeals an order granting the State’s motion to dismiss.  OPINION HOLDS: Finding no legal error, we affirm the order granting the State’s motion to dismiss. 

            Appeal from the Iowa District Court for Adams County, John D. Lloyd, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Considered by Doyle, P.J., Mullins, J., and Vogel, S.J.  Opinion by Mullins, J.  (17 pages)

            Mark Curtis appeals the decree dissolving his marriage to Misha Curtis.  Mark challenges the spousal-support, child-support, property-distribution, and visitation provisions of the decree, as well as the court’s award of trial attorney fees to Misha.  Misha requests an award of appellate attorney fees.  OPINION HOLDS: We modify the amount and duration of rehabilitative spousal support to $1000.00 per month for one year from the time the decree was entered, followed by $500.00 per month for six months.  We modify Mark’s child-support obligation under the decree to $910.81 per month.  Given the limited duration of Misha’s spousal-support award coupled with an anticipated increase in her income, we remand the matter to the district court for a determination of Mark’s child-support obligation after his spousal-support obligation decreases to $500.00 per month.  The foregoing support obligation shall apply to the duration between the entry of the decree and the time the district court enters an order identifying Mark’s future support obligation.  We find correction or modification of Mark’s temporary child-support obligation was not properly before the court, and the court’s sua sponte retroactive modification of the temporary-matters order was therefore error.  We therefore modify the decree to vacate the portions that retroactively modified Mark’s child-support obligation under the temporary-matters order.  We affirm the district court’s property distribution in its entirety and the award of attorney fees in favor of Misha.  We deny Misha’s request for appellate attorney fees.  Costs on appeal are assessed equally between the parties. 

            Appeal from the Iowa District Court for Story County, James A. McGlynn, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (13 pages)

            The plaintiffs appeal the district court’s decision granting the motion for summary judgment filed by the City of Nevada and unnamed City of Nevada employees in a suit seeking money damages for the death by suicide of Adam Blazek and the conduct of City of Nevada police officers.  OPINION HOLDS:  The plaintiffs’ tort claims against the defendants were barred because the defendants did not have a special relationship with the plaintiffs sufficient to defeat the public-duty doctrine.  The plaintiffs’ constitutional claims fail because they are based on tort theories and similarly barred by the public-duty doctrine or were based on violations of the plaintiffs’ substantive due process rights, in which case the plaintiffs did not meet their burden to show the defendants’ actions shocked the conscience.

            Appeal from the Iowa District Court for Mitchell County, DeDra L. Schroeder, Judge.  REVERSED AND REMANDED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Bower, J.  (7 pages)

            Lee and Rita Dvorak appeal the district court decision granting summary judgment to Oak Grove Cattle, L.L.C., based on the statute of limitations.  OPINION HOLDS: We conclude the district court improperly granted summary judgment to Oak Grove on the ground the Dvoraks’ action was barred by the statute of limitations.  Oak Grove did not meet its burden to show the case involved a permanent nuisance, rather than a continuing nuisance.  We reverse the decision of the district court and remand for further proceedings.