2020 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Lee (South) County, Michael J. Schilling, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (4 pages)

            Courtney Kellum appeals the prison sentence imposed following his guilty pleas to delivery of methamphetamine and willful injury causing bodily injury.  Kellum argues the district court was “unreasonable in ignoring the recommendations of the Department of Corrections and the prosecutor.”  In response, the district court pointed to Kellum’s age and criminal history—thirty-four years old; six thefts; four assaults; three interference with official acts; ten alcohol-related offenses; and one controlled substance offense.  OPINION HOLDS: First, a sentencing court does not abuse its discretion by refusing to grant probation even if recommended by the presentence investigation report and the parties.  Second, the district court decided on incarceration after considering Kellum’s age, criminal history, employment circumstances, family circumstances, the nature of the offenses, and the information contained in the presentence investigation report.  Kellum fails to overcome the presumption the sentencing court properly exercised its discretion.

            Appeal from the Iowa District Court for Black Hawk County, Joel A. Dalrymple, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (8 pages)

            Beneficiary Karen Richter Nutkiewicz seeks to invalidate a court order approving a plan to make property distributions and then terminate a family farm trust.  Karen twice filed motions to reconsider the district court’s order, contending a due process claim she did not receive “any notice whatsoever” of the hearing.  The district court refused to reconsider its ruling.  In addition, Karen’s appellate brief failed to address how she preserved error for appellate review.  OPINION HOLDS: Where an omission does not hinder our consideration of the issue raised, we will decide it on the merits.  Next, on Karen’s due process contention, because we cannot find in the record where she received a ruling on a constitutional claim, we deem that issue waived and, accordingly, give it no further consideration. Finally, because Karen’s attorney of record received notification in compliance with rule 1.442(2), we affirm the district court’s denial of her motions to reconsider.

            Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.  REVERSED AND REMANDED.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  Special concurrence by May, J.  Concurrence in part and dissent in part by Greer, J.  (19 pages)

            The defendants appeal an adverse summary judgment ruling in this breach-of-contract action.  OPINION HOLDS: Because GreatAmerica Financial Services Corp. has not proved a breach of contract as a matter of law, we reverse and remand for further proceedings.  In addition, because summary judgment was improperly granted, we vacate the award of attorney fees.  SPECIAL CONCURRENCE ASSERTS: We should reverse for three reasons.  First, the Software Finance Agreement should be enforced as written, and the defendants were not named parties to the Agreement.  Second, the current record does not support reformation.  Third, under the facts of this case, ratification cannot substitute for reformation.  PARTIAL DISSENT ASSERTS: I respectfully dissent in part; I would affirm the district court ruling granting GreatAmerica summary judgment against Personal Touch Medical Management, Inc. (PTMM) but, like the majority, would reverse as to Marisol Aponte. By its actions, PTMM ratified and agreed to be bound to the agreement for such software; ratification of that contract occurred when PTMM accepted the software and paid GreatAmerica for the software over many months.  We have no similar record as to Aponte or that she agreed to be personally liable.

            Appeal from the Iowa District Court for Polk County, Jeffrey Farrell, Judge.  AFFIRMED.  Considered by Tabor, P.J., Schumacher, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (5 pages)

            Patrick Williams appeals his convictions for possession of methamphetamine and driving while barred.  OPINION HOLDS:  We determine Williams’s claim of ineffective assistance of counsel should be preserved for possible postconviction-relief proceedings.  We affirm Williams’s convictions.

            Appeal from the Iowa District Court for Black Hawk County, Linda M. Fangman, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (27 pages)

            Richard Wermerskirchen suffered serious injuries when a Chicago, Central & Pacific Railroad Company (CCP) freight train struck the road grader he was operating at a railroad crossing in rural Black Hawk County.  Wermerskirchen sued for negligence.  The district court granted the CCP’s motion for summary judgment on claims of failure to keep a proper lookout and failure to slow or stop the train.  The court decided the Federal Railroad Safety Act of 1970 (FRSA) preempted those common law claims.  The court submitted the case to a jury on Wermerskirchen’s claim that the crew failed to sound an audible warning.  The jury found no negligence.  Wermerskirchen appeals both the summary judgment and trial rulings.  OPINION HOLDS: Deciding whether the crew kept a proper lookout, or failed to slow or stop, and deciding whether the dense fog affected its ability to do so are fact questions for a jury to decide.  Not all state tort claims that touch on the topic of a train’s duty to brake to avoid a collision could be preempted by the federal regulations setting speed limits.  In addition, the district court did not abuse its discretion in excluding the near-miss evidence.  Finally, we find no error in the six jury instructions Wermerskirchen unsuccessfully challenged.

            Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (8 pages)

            Tiffani Finch appeals from the district court’s judgment and sentencing finding her guilty of operating a motor vehicle without owner’s consent, in violation of Iowa Code sections 714.1 and 714.7 (2018).  She contends she had the owner’s consent to use the vehicle.  OPINION HOLDS: Because the district court correctly decided the owner, the ward in a guardianship and conservatorship, could not legally give another person permission to drive the truck, we reject Finch’s request for a new trial.  We affirm the conviction. 

            Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.  AFFIRMED.  Considered by Doyle, P.J., Tabor, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (5 pages)

            Tony Lopez appeals the district court decision denying his request to withdraw his guilty plea to first-degree robbery.  OPINION HOLDS:  The evidence shows the defendant had full knowledge of the charge against him, as well as his rights and the consequences of a plea of guilty.  We conclude the district court did not abuse its discretion in finding Lopez made a knowing and voluntary plea.  We affirm the district court’s decision denying Lopez’s motion to withdraw his guilty plea.

            Appeal from the Iowa District Court for Muscatine County, Tom Reidel, Judge.  AFFIRMED. Considered by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.  Opinion by Vaitheswaran, P.J.  (6 pages)

            On appeal from a remand order, Brett Noble contends (1) “the district court improperly applied existing law when it vacated [his] voluntary manslaughter conviction and resentenced [him] on attempted murder in a ‘one homicide’ case, resulting in an illegal sentence” and (2) his “appellate and resentencing counsel were ineffective for not adequately contesting the court of appeals decision that incorrectly instructed vacating voluntary manslaughter instead of attempted murder at resentencing.”  OPINION HOLDS: We affirm Noble’s amended sentence.

            Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (13 pages)

            A defendant appeals convictions for operating while intoxicated (OWI), third offense, and felony eluding.  The defendant pleaded guilty to felony eluding and OWI, third offense.  On appeal, he alleges procedural defects in his plea proceedings and error in the denial of his motion in arrest of judgment.  OPINION HOLDS: We find his procedural arguments to be unpreserved and we find no abuse of discretion in the denial of his motion in arrest of judgment and affirm.

            Appeal from the Iowa District Court for Des Moines County, Mary Ann Brown and Mark E. Kruse, Judges.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J. (6 pages)

            William Kirchner Jr. appeals after pleading guilty to possession of a firearm by a felon and possession of a controlled substance, third offense.  OPINION HOLDS: I. Because the court adequately advised Kirchner of his need to file a timely motion in arrest of judgment to challenge his pleas and he failed to do so, he cannot challenge the voluntariness of his pleas on direct appeal.  II. Counsel did not breach a duty in failing to move in arrest of judgment challenging the factual basis for Kirchner’s plea to possession of a controlled substance.  III. The court acted within its discretion in refusing to allow Kirchner to withdraw his plea because the record shows he entered his plea knowingly and voluntarily without fear or persuasion. 

            Appeal from the Iowa District Court for Story County, Steven P. Van Marel, District Associate Judge.  AFFIRMED.  Considered by Mullins, P.J., Schumacher, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (3 pages)

            D.N. appeals from a finding of serious mental impairment.  OPINION HOLDS: Because we have no recording, transcript, or statement of the proceedings of the contested hearing, we are required to affirm the district court’s decision.

            Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J. (4 pages)

            Montez McClain appeals the sentence imposed upon his conviction, following a guilty plea, of second-degree robbery on constitutional grounds.  OPINION HOLDS: We conclude the sentence imposed does not amount to cruel and unusual punishment or violate equal protection.  We affirm the sentence imposed.