May 2023 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Dallas County, Randy V. Hefner, Judge.  REVERSED AND REMANDED.  Heard by Bower, C.J., and Vaitheswaran and Tabor, JJ.  Opinion by Vaitheswaran, J.  (10 pages)

            A mother of three children appeals orders reinstating visits with the children’s father following a period of suspension while he was incarcerated for federal drug crimes.  OPINION HOLDS: Because we have no evidence to support a conclusion that categorical unsupervised visits are in the children’s best interests, we reverse the October 2021 order and remand for an evidentiary hearing to address the matters contained in that order based on present circumstances.

            Appeal from the Iowa District Court for Tama County, Mary E. Chicchelly, Judge.  AFFIRMED AND REMANDED.  Considered by Bower, C.J., and Greer and Badding, JJ.  Opinion by Badding, J. Chicchelly, J., takes no part.  (17 pages)

            Terry Walker appeals the property distribution and spousal support provisions of the decree dissolving his marriage to Bridget Walker.  Bridget requests an award of appellate attorney fees.  OPINION HOLDS: We affirm the decision of the district court and remand for the determination of an award of reasonable appellate attorney fees in favor of Bridget.

            Appeal from the Iowa District Court for Story County, James C. Ellefson, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Schumacher and Buller, JJ.  Opinion by Schumacher, J.  (16 pages)

            James Palensky and Teresa Scheib-Palensky (Palenskys) appeal the district court’s grant of summary judgment on a petition for declaratory judgment to the Story County Board of Adjustment (Board) and the annulment of a writ of certiorari.  OPINION HOLDS: We find (1) the district court properly denied the Palenskys’ request for declaratory relief; (2) the previous proceedings before the Board were not a nullity; (3) the Board made adequate factual findings; (4) the Palenskys’ claims concerning the modification of a conditional use permit were untimely; (5) the Board’s findings were supported by substantial evidence; (6) the Palenskys were not denied due process; and (7) the Palenskys were not denied their right to petition the Board for redress of their grievances.  We affirm the decisions of the district court and the Board.

            Appeal from the Iowa District Court for Story County, James C. Ellefson, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Schumacher and Buller, JJ.  Opinion by Schumacher, J.  (9 pages)

            James Palensky and Teresa Scheib-Palensky (the Palenskys) appeal the district court’s grant of summary judgment to the Story County Board of Adjustment (Board) on the annulment of their petition for a writ of certiorari.  OPINION HOLDS: We find (1) the district court did not err by finding that while a conditional use permit (CUP) was annulled, the Board’s previous proceedings were not annulled; (2) aside from the issues of compatibility and traffic congestion, the Board substantially complied with the requirement to make written findings of fact; (3) we determine there is substantial evidence in the record, with exceptions for compatibility and traffic congestion; (4) the Board did not act illegally by failing to consider modifications to a different CUP when it made findings regarding this CUP; (5) the Board considered the combined effects of the two CUPs; (6) the Palenskys were not denied due process; and (7) the Palenskys were not denied their right to petition the Board for redress of their grievances.  We affirm the decision of the district court.

              Appeal from the Iowa District Court for Polk County, Heather Lauber, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Schumacher and Ahlers, JJ.  Opinion by Tabor, P.J.  (10 pages)

              Jonathan Brown appeals the denial of postconviction relief (PCR) after his conviction for second-degree murder.  He contends his criminal trial attorneys were ineffective in two ways: (1) by not raising a fair-cross-section challenge to the jury pool, and (2) by not providing zealous advocacy after Brown “backed out” of a plea deal.  Brown also contends his PCR counsel was ineffective.  OPINION HOLDS: Because Brown fails to show counsel breached a material duty in either the criminal or PCR proceedings, we affirm the denial of relief.

            Appeal from the Iowa District Court for Fremont County, Greg W. Steensland, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Greer and Chicchelly, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            Following his conviction for one count of second-degree sexual abuse and two counts of lascivious acts with a child, Roger Kissel argues his trial attorney was ineffective in failing to (1) “properly investigate [his] medical condition”; (2) “properly interview witnesses”; and (3) show him “[a] full and complete video” of the child’s forensic interview.  OPINION HOLDS: We hold the evidence amounted to overwhelming evidence of guilt, rendering it reasonably improbable that counsel’s claimed failures would have changed the outcome. 

              Appeal from the Iowa District Court for Polk County, Becky Goettsch, District Associate Judge.  AFFIRMED.  Considered by Schumacher, P.J., Ahlers, J., and Doyle, S.J.  Opinion by Doyle, S.J.  (7 pages)

              Mary Zarwie appeals her conviction for operating while intoxicated, first offense, in violation of Iowa Code section 321J.2 (2021), a serious misdemeanor.  She claims there was insufficient evidence to support her conviction.  OPINION HOLDS: Viewing the evidence in a light most favorable to the verdict, substantial evidence supports the jury’s finding of guilt.  

              Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.  AFFIRMED.  Considered by Bower, C.J., and Tabor and Greer, JJ.  Opinion by Greer, J.  (7 pages)

              Aaron Hanson Gales Jr. pled guilty to escaping from custody after being convicted of a felony and, at a combined sentencing hearing for four cases, was sentenced to a term of incarceration not to exceed five years for escaping from custody.  Hanson Gales was ordered to serve the five-year term consecutively to some of the terms in other cases.  On appeal, he argues the district court abused its discretion in sentencing him to jail and running the sentence consecutive to other terms of incarceration.  He points to his “young age,” claiming it should have been a strong mitigating factor, and maintains the court’s brief explanation for the sentence is insufficient.  OPINION HOLDS: Because Hanson Gales has not shown the court abused its discretion in reaching its sentencing decision and the court’s explanation of its decision, while concise, is sufficient for our review, we affirm Hanson Gales’s sentence.

              Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.  AFFIRMED.  Considered by Bower, C.J., and Tabor and Greer, JJ.  Opinion by Greer, J.  (3 pages)

                 In FECR420322, Aaron Hanson Gales Jr. pled guilty to two counts of assault on persons in certain occupations causing bodily injury.  In a multi-case sentencing hearing, he was ordered to serve a two-year term on each count, with those sentences running consecutive to one another (for a total of four years) and consecutive to his sentences in three other cases.  Hanson Gales appeals.  OPINION HOLDS: For the reasons provided in the companion case, State v. Hanson Gales, No. 22-0794, 2023 WL _______ (Iowa Ct. App. May 10, 2023), which we also decide today, we affirm. 

              Appeal from the Iowa District Court for Lee (North) County, John M. Wright, Judge.  REVERSED AND REMANDED.  Considered by Greer, P.J., Buller, J., and Scott, S.J.  Opinion by Scott, S.J.  (8 pages)

              Carl Gorman Meyers appeals the district court’s ruling granting an adverse summary judgment in this action alleging breach of fiduciary duties by co-trustees of the Meyers Family Revocable Trust.  OPINION HOLDS: The district court ruled on a ground the movant did not raise or brief in their motion for summary judgment, and of which the resisters had no notice or opportunity to respond.  We reverse and remand.

            Appeal from the Iowa District Court for Muscatine County, Stuart P. Werling, Judge.  AFFIRMED.  Considered by Bower, C.J., and Badding and Buller, JJ.  Opinion by Bower, C.J.  (5 pages)

            The beneficiary of a trust appeals a ruling approving the sale of real estate from the trust.  OPINION HOLDS: We find the proposed sale is reasonable and affirm the district court’s order granting the trust’s application to sell.

            Appeal from the Iowa District Court for Muscatine County, Mark R. Lawson, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Schumacher and Ahlers, JJ.  Opinion by Ahlers, J.  (5 pages)

            Susan Rose Purcell-Varnell appeals her sentence following a guilty plea.  She contends the district court abused its discretion in not granting her a deferred judgment.  OPINION HOLDS: We find no abuse of discretion by the district court.