July 2020 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Adams County, Michael Jacobsen, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Mullins, J.  (7 pages)

            Appellants appeal a district court ruling on a trustee’s application for court direction regarding payment of trust income, which directed the trustee to pay Ella Mae Inman the gross income of the trust upon her request regardless of whether trust expenses must then be paid by invading the trust’s assets.  OPINION HOLDS: We reverse the district court’s ruling on the trustee’s application for court direction and remand the matter for entry of an order consistent with this opinion.

            Appeal from the Iowa District Court for Polk County, David Porter, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.  Opinion by Vaitheswaran, P.J.  (5 pages)

            James Wright, Jr. appeals from the district court’s dismissal of his second application for postconviction relief (PCR), contending (1) the “second PCR action is, in fact, timely under Allison” v. State, 914 N.W.2d 866, 891 (Iowa 2018), and (2) the statute of limitations does not “apply to [the] second PCR action, as it involves newly discovered evidence.”  OPINION HOLDS: We affirm the summary dismissal of Wright’s second PCR application.

            Appeal from the Iowa District Court for Carroll County, Gary L. McMinimee, Judge.  AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Tabor, P.J., Greer, J., and Potterfield, S.J.  Opinion by Greer, J.  (6 pages)

            Robert Morris appeals the restitution order entered after his guilty plea, arguing there was insufficient evidence to support the restitution award for one of the victim’s damages.  OPINION HOLDS: We conclude there was sufficient evidence to support the restitution award for the victim’s damaged clothing and carpet and lost wages, and affirm that portion of the order.  We agree there was insufficient evidence of the victim’s medical expenses and vacate that portion of the order.  We remand for further proceedings to determine the amount of restitution for the victim’s medical bills.

            Appeal from the Iowa District Court for Greene County, Gina C. Badding, Judge.  AFFIRMED.  Considered by Tabor, P.J., May, J., and Gamble, S.J.  Opinion by Tabor, P.J.  (5 pages)

            Self-represented litigants Gregory and Beverly Swecker failed to line up an expert witness for their legal malpractice action.  They contend that any lay person would recognize their attorney’s performance as a breach of contract and attorney malpractice.  On that basis, the district court granted summary judgment to the lawyer and law firm they were suing.  OPINION HOLDS: Because we do not find the Sweckers’ case an exceptional case and we find the district court’s ruling is thorough and approve of its reasoning, we affirm by memorandum opinion.

            Appeal from the Iowa District Court for Wapello County, Crystal S. Cronk, Judge.  AFFIRMED AS MODIFIED ON BOTH APPEALS.  Considered by Tabor, P.J., and May and Greer, JJ.  Opinion by Greer, J.  (15 pages)

            Tad Wheeler appeals from the decree dissolving his marriage to Verna Wheeler.  Tad challenges the district court’s property division, the determination of his income for purposes of the child-support obligation, and the award of attorney fees to Verna.  He asks us to order Verna to pay his appellate attorney fees of $27,775.  On cross-appeal, Verna challenges the division of property and the resulting equalization payment and asks for appellate attorney fees of $10,125.  OPINION HOLDS: We agree with the district court’s finding that Tad’s income for the purpose of child support is $119,882.  We reduce the equalization payment Tad is required to make to Verna to $281,539.86.  Tad is still required to pay the equalization payment at the rate of $5000 per month or may choose to prepay the obligation.  We affirm the district court’s award of attorney fees to Verna in the amount of $6000 and order Tad to pay $5000 of Verna’s appellate attorney fees.

            Appeal from the Iowa District Court for Warren County, Richard B. Clogg, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Vaitheswaran, P.J.  (8 pages)

            Kenneth Doss appeals from the district court’s denial of his application for postconviction relief, contending (1) his plea attorney was ineffective in failing to “adequately inform [him] of the extent of the rules and requirements of the special sentence at the time of his plea” and (2) the district court “erred in holding the rules of [his] special sentence and parole are constitutional and legal as applied to him.”  OPINION HOLDS: We affirm the denial of Doss’s postconviction-relief application.

            Appeal from the Iowa District Court for Dallas County, Virginia Cobb, District Associate Judge.  REVERSED AND REMANDED.  Heard by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Vaitheswaran, P.J. Special concurrence by Ahlers, J.  (10 pages)

            Deborah Boley appeals her conviction for operating a motor vehicle while intoxicated, first offense, arguing that the district court wrongly denied her motion to suppress because the officers involved had neither probable cause coupled with exigent circumstances nor consent to justify the warrantless entry into her home.  OPINION HOLDS: We reverse and remand.  SPECIAL CONCURRENCE ASSERTS: I write separately for the purpose of reinforcing the principle that courts should not need to patch together conclusions drawn from a number of ambiguous facts in order to find consent.  Being unwilling to disregard the requirement that consent be unequivocal, I join in the decision to reverse the district court’s decision.

            Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi Wittig, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Ahlers, J.  (10 pages)

            Gail Miller, a former trustee, appeals the district court’s refusal to order payment of all of her and her attorney’s fees from the trust.  OPINION HOLDS: Miller was not entitled to fees for “investment services” based on the language of the trust document, and the trustee and attorney fees awarded appropriately reflect the necessary administration of the trust.  Miller’s claim of judicial bias is not preserved for appeal.  Accordingly, we affirm the district court’s ruling in its entirety.

            Appeal from the Iowa District Court for Polk County, Joseph Seidlin, Judge.  AFFIRMED.  Heard by Bower, C.J., and Doyle and Schumacher, JJ.  Opinion by Doyle, J.  (11 pages)

            A child’s legal custodian appeals the order denying a petition to terminate the father’s parental rights.  OPINION HOLDS: The custodian failed to show the father abandoned the child as required to terminate parental rights under Iowa Code section 600A.8(3)(a) (2019).  We need not consider the custodian’s arguments concerning the child’s best interests.

            Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Mullins, J.  (3 pages)

            Joseph McCaffry appeals the spousal support provisions of the decree dissolving his seventeen-year marriage to Tracey McCaffry.  Joseph argues the amount and duration of Tracey’s spousal support award is inequitable.  OPINION HOLDS: We affirm the decree dissolving the parties’ marriage.

            Appeal from the Iowa District Court for Boone County, Christopher C. Polking, Judge.  AFFIRMED.  Considered by Bower, C.J., and Doyle and Schumacher, JJ.  Opinion by Doyle, J.  (5 pages)

            Charles Curry appeals from his conviction for willful injury resulting in serious injury.  He contends there was insufficient proof of serious injury to support his conviction.  OPINION HOLDS: After reviewing the record in the light most favorable to the verdict, we determine there was sufficient evidence from which a jury could have reasonably found beyond a reasonable doubt that Curry’s actions did result in serious injury to Schroder.  Thus, we reject Curry’s claim of insufficient evidence and we affirm his conviction.    

            Appeal from the Iowa District Court for Johnson County, Chad A. Kepros, Judge.  AFFIRMED.  Considered by Tabor, P.J., and May and Greer, JJ.  Opinion by Tabor, P.J.  (9 pages)

            Meta Crow contends the district court was wrong in finding she waited too long to file her medical malpractice lawsuit against Dr. Sarvenaz Jabbari.  Crow asks us to reverse the summary judgment, urging that a genuine issue of material fact exists as to the date she was on notice of her claimed injury and its cause in fact.  Crow also argues we should find that her designated experts are qualified to address the standard of care.  OPINION HOLDS: Because no reasonable fact finder could conclude that Crow filed her lawsuit within two years of when she was on notice of her injury caused by an alleged misdiagnosis, the statute of limitations barred her action.  Next, because the statute bars her claim, we need not reach the expert-opinion issue.