2019 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED.  Heard by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (15 pages)

            Lester Dunigan appeals the adverse summary judgment ruling on his claim for underinsured motorist coverage against Liberty Mutual Insurance Company (Liberty Mutual).  He argues the district court erred by applying Illinois law to the insurance policy, contending the plain language of the policy required the application of Iowa law.  Further, he argues Liberty Mutual failed to obtain a written declination of underinsured motorist coverage as required by Iowa Code section 516A.1 (2014), which results in underinsured motorist coverage being read into the policy.  OPINION HOLDS: We find the district court did not err by applying Illinois law as Illinois has the most significant relationship to the transaction and the parties.  Under Illinois law, because Dunigan opted to have only the statutory minimum amount of uninsured motorist liability coverage required by law, Liberty Mutual was not required to include underinsured motorist liability.  Accordingly, Dunigan cannot recover underinsured motorist benefits under his policy.  We affirm the district court’s grant of Liberty Mutual’s motion for summary judgment.

            Appeal from the Iowa District Court for Dallas County, Bradley McCall, Judge.  REVERSED AND REMANDED.  Heard by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (15 pages)

            Daniel Felt and Susan Kern appeal the district court ruling, finding a limited liability company (LLC) formed by their father, Richard Felt, did not dissolve following his death.  OPINION HOLDS: We find the contractual requirements for membership were not met within ninety days of Richard’s death, and the LLC dissolved by operation of law.

            Appeal from the Iowa District Court for Story County, Timothy J. Finn, Judge.  WRIT ANNULED.  Considered by Vogel, C.J., Vaitheswaran, J., and Blane, S.J.  Opinion by Blane, S.J.  (34 pages)

            Defendant appeals the district court dismissal of his third motion for new trial, filed more than two years after judgment and sentence were imposed on his conviction for second-degree murder.  He raises a number of claims as to why the district court erred in dismissing his motion, mostly procedural complaints, and why we should exercise jurisdiction in this appeal.  OPINION HOLDS: We treat defendant’s notice of appeal as a petition for writ of certiorari, grant the petition, address the issues raised under the appropriate legal standards, find the trial court did not act illegally, and annul the writ.

            Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Tabor, J.  Dissent by Vaitheswaran, P.J.  (19 pages)

            A mother appeals the juvenile court order denying her petition to terminate the parental rights of her son’s father under Iowa Code chapter 600A (2017).  She contends the juvenile court incorrectly concluded termination is not in the child’s best interests despite the father’s incarceration in another state and far-off release date, long history of substance abuse, and abandonment of the child.  OPINION HOLDS: Because the best-interests standard for private termination under chapter 600A differs from that under chapter 232, we are not prepared to write off the possibility the father will be a positive influence in the child’s life.  The mother did not carry her burden of proving by clear and convincing evidence that termination is in the child’s best interests at this time.  DISSENT ASSERTS: I respectfully dissent.  I would reverse the denial of the termination petition and remand for entry of an order granting the mother’s termination petition.

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Vogel, C.J.  (6 pages)

            Curtis Mabbitt appeals and Kristina Hickcox cross-appeals from the order modifying the decree of dissolution of their marriage.  Curtis argues a material change in circumstances has occurred since dissolution and the district court should have modified their child visitation schedule.  He also argues the court should have allowed one of their children to testify.  Kristina argues the court should have ordered retroactive child support and awarded her attorney fees.  OPINION HOLDS: We agree with the district court there is no material change in circumstances since entry of the decree to justify modifying visitation, and the court did not abuse its discretion in excluding the child as a witness.  We also agree with the court’s increase of child support effective after entry of the order, and the court did not abuse its discretion in declining to award attorney fees.  Accordingly, we affirm.

            Appeal from the Iowa District Court for Wapello County, Kirk A. Daily, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Scott, S.J.  Opinion by Scott, S.J.  (7 pages)

            David Francis appeals his conviction of operating while intoxicated (OWI), third offense.  OPINION HOLDS:  We find the district court did not abuse its discretion in determining certain evidence was not relevant and therefore not admissible.  We determine there is substantial evidence in the record to support Francis’s conviction.  We preserve Francis’s claims of ineffective assistance of counsel for possible postconviction relief proceedings.  We affirm Francis’s conviction of OWI, third offense.

            Appeal from the Iowa District Court for Lee County, Mark E. Kruse, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (3 pages)

            Andrew Kearse, D.C., appeals the district court’s dismissal of his application for judicial review of a sanction imposed on him by the Iowa Board of Chiropractic, arguing the sanction was not warranted.  OPINION HOLDS: We conclude the board acted well within its discretion in revoking Kearse’s chiropractor license for at least ten years.  The revocation decision was not an irrational, illogical, or wholly unjustifiable application of law to fact.

            Appeal from the Iowa District Court for Bremer County, Peter B. Newell, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Mullins, J. (14 pages)

            John Ancell appeals his convictions, following a jury trial, of domestic abuse assault causing bodily injury and possession of marijuana.  Ancell asserts the court erred in denying his motions for a new trial and in arrest of judgment, contending he was denied a fair trial due to the State’s late disclosure of evidence, resulting in a Brady violation.  Ancell also challenges the sufficiency of the evidence supporting his convictions.  OPINION HOLDS: Ancell’s Brady claim fails on the merits.  Accordingly, his trial counsel was not ineffective in failing to object to the State’s late disclosure of his statement.  We also find sufficient evidence to support his convictions.  Therefore, we affirm Ancell’s convictions for domestic abuse assault causing bodily injury and possession of marijuana.

            Appeal from the Iowa District Court for Pottawattamie County, Craig M. Dreismeier, District Associate Judge.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., Tabor, J., and Gamble, S.J.  Opinion by Gamble, S.J. (3 pages)

            Bruce Rankin appeals the sentence imposed upon his conviction for two counts of indecent contact with a child, contending the district court erred in determining Rankin had the reasonable ability to pay an unknown amount of attorney’s fees.  OPINION HOLDS: The court erred in determining Rankin was able to pay attorney fees in an unknown amount.  We reverse the part of the sentence regarding restitution and remand the case for resentencing consistent with State v. Albright, 925 N.W.2d 144, 160-61 (Iowa 2019).

            Appeal from the Iowa District Court for Sioux County, Jeffrey A. Neary, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Tabor, JJ.  Opinion by Doyle, J.  (7 pages)

            Thomas and Jerome Kellen appeal the district court ruling denying their action for relief.  OPINION HOLDS: I. The Kellens failed to prove by a preponderance of the evidence that the installation of the relief pipe substantially increased the volume of water flowing onto their land or substantially changed the manner or method of drainage.  II. The district court did not abuse its discretion in excluding certain evidence the Kellens failed to disclose prior to trial. 

            Appeal from the Iowa District Court for Johnson County, Lars G. Anderson And Mary E. Chicchelly, Judges.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (2 pages)

            Torrenzo Green appeals his conviction for possession of marijuana with intent to deliver.  OPINION HOLDS: We affirm Green’s conviction and preserve his ineffective-assistance-of-counsel claim for possible postconviction-relief proceedings.  

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Potterfield and Doyle, JJ.  Tabor, J., takes no part.  Opinion by Potterfield, J.  (7 pages)

            Izudin Dubinovic appeals the district court judicial review decision affirming the final agency action of the workers’ compensation commissioner denying his claim for penalty benefits.  On appeal, Dubinovic contends the commissioner and the district court erred in declining to award penalty benefits for an alleged delay of healing period benefits and permanency benefits.  OPINION HOLDS: We affirm the commissioner’s denial of Dubinovic’s claim for penalty benefits.