Court of Appeals Opinions

            Appeal from the Iowa District Court for Warren County, Thomas P. Murphy, Judge.  AFFIRMED.  Considered by Badding, P.J., Langholz, J., and Potterfield, S.J.  Opinion by Langholz, J.  (13 pages)

            Oscar and Maria Recio appeal the district court’s order enforcing a settlement agreement and dismissing their suit against Frederick Fridley, D.L. Peterson Trust, Securitas Security Services USA, Inc., and Doe Corporation.  They argue that the district court improperly granted summary judgment on the defendants’ motion to enforce a settlement agreement when a genuine issue of material fact existed as to whether their attorney had authority to settle their claims.  OPINION HOLDS: The ruling that the Recios appeal is not a summary-judgment ruling.  Without objection from the Recios, the court decided this preliminary factual issue—finding based on the evidence before it that the parties reached a settlement agreement.  So any error in this procedure is not preserved.  And reviewing for corrections of errors at law, we hold that the court’s finding is supported by substantial evidence.  Given the other evidence and the presumption of attorney authority, we cannot say as a matter of law that the court was required to believe a single affidavit.  We thus affirm the district court’s order enforcing the settlement agreement and dismissing the Recios’ suit.

            Appeal from the Iowa District Court for Scott County, Joel W. Barrows, Judge.  AFFIRMED IN PART, MODIFIED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Badding, P.J., Langholz, J., and Doyle, S.J.  Opinion by Doyle, S.J.  (13 pages)

            Gabrielle Gonzales appeals the decree establishing custody, physical care, visitation, and support of the child she shares with Miguel Zamora.  She challenges the grant of physical care to Miguel Zamora.  She also contests the requirement that she provide all transportation for visitation, the amount of child support, and the award of Miguel’s trial attorney fees.  Miguel requests an award of his appellate attorney fees.  OPINION HOLDS: Because E.Z.’s best interests are served by placing him in Miguel’s physical care, we affirm the physical caretaking provisions of the decree.  The costs of transporting the child for visitation should be shared by the parties, so we modify the decree to provide that each party is tasked with transporting E.Z. to the Quad Cities for exchanges at a mutually agreed upon place.  We remand to the district court to recalculate the child support consistent with this opinion.  Given the disparity in the parties’ earnings, we decline to award Miguel his trial attorney fees.  We reverse the district court on this issue.  Gabrielle prevailed on three of the four issues she raised on appeal.  For the same reasons stated in the preceding section, we decline to award Miguel his appellate attorney fees.

            Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.  APPEAL DISMISSED.  Considered by Schumacher, P.J., Langholz, J., and Mullins, S.J.  Opinion by Mullins, S.J.  (4 pages)

            Adam Cart appeals the district court’s imposition of an agreed-upon sentence following his guilty plea to possession of methamphetamine, third offense.  OPINION HOLDS: Because Cart has failed to establish good cause to bring this appeal, we lack jurisdiction and must dismiss.

            Appeal from the Iowa District Court for Johnson County, Paul D. Miller, Judge.  AFFIRMED.  Considered by Greer, P.J., and Ahlers and Badding, JJ.  Opinion by Ahlers, J.  (17 pages)

            David Weltman appeals from the denial of his application for postconviction relief (PCR).  He claims that the PCR court abused its discretion when it did not admit certain exhibits and should have concluded that his criminal trial counsel provided him with ineffective assistance in a number of respects.  He argues that his criminal trial counsel’s ineffective assistance resulted in prejudice under each of his claims as well as cumulatively.  OPINION HOLDS: We agree with Weltman that the PCR court abused its discretion when it did not admit the exhibits.  However, because the PCR court also ruled in the alternative, we need not reverse or remand for further proceedings.  Weltman failed to establish that his criminal trial counsel was ineffective in any respect.  As such he cannot establish any prejudice, cumulatively or otherwise.  We affirm the PCR court’s denial of Weltman’s PCR application.

            Appeal from the Iowa District Court for Polk County, Dustria A. Relph, Judge.  AFFIRMED.  Considered by Greer, P.J., and Ahlers and Badding, JJ.  Opinion by Ahlers, J.  (9 pages)

            Craig Naeve appeals from the decree dissolving his marriage to Tania Naeve.  He argues that the district court should not have considered the value of gifts he received from family when dividing the marital property between the parties.  Craig also challenges the district court’s determination that he dissipated assets.  Tania requests appellate attorney fees.  OPINION HOLDS: Finding no inequity in the district court’s decision to treat the increase in value of assets Craig received as a gift, we agree with the district court’s decision to include that part of the value of the gifted property in the divisible marital property.  Craig dissipated assets by transferring $125,000 to his grandmother.  As to Tania’s request for appellate attorney fees, we deny her request.

            Appeal from the Iowa District Court for Linn County, Justin Lightfoot, Judge.  AFFIRMED.  Considered by Badding, P.J., Langholz, J., and Bower, S.J.  Opinion by Langholz, J.  (12 pages)

            Richard Gardner appeals the property-division provisions of the decree dissolving his marriage with Jessica Gardner.  He argues that his $250,000 cash equalization payment to Jessica is inequitable because the district court inaccurately valued some of the property, improperly included proceeds from the sales of real estate and silver bars that he had already spent, and failed to divide his retirement accounts according to the formula from In re Marriage of Benson, 545 N.W.2d 252 (Iowa 1996), rather than awarding them all to him.  OPINION HOLDS: Most of Richard’s challenges come too late.  Because of his repeated failure to respond to discovery and comply with court orders, the district court found Richard in default.  Even so, the court permitted Richard to testify at the hearing to decide the proper relief for the decree.  And still, Richard did not contest most of the valuations, the inclusion of the proceeds, or the award of his undivided retirement accounts.  So any error on these issues is not preserved for our appellate review.  On the two factual issues that are arguably preserved—the valuation of the commercial real estate and the silver bars proceeds—we affirm the district court because the valuations are within the permissible range of evidence.  And based on the record before the district court, we agree that the property division and the $250,000 equalization payment is equitable.  We also grant Jessica’s request for appellate attorney fees.

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  APPEAL DISMISSED.  Considered by Tabor, P.J., and Chicchelly and Sandy, JJ.  Opinion by Chicchelly, J.  (2 pages)

            Scott Campbell appeals the district court’s dismissal of his judicial review action.  OPINION HOLDS: Because we have no issues to review, we dismiss the appeal.

            Appeal from the Iowa District Court for Taylor County, Patrick W. Greenwood, Judge.  AFFIRMED.  Considered by Schumacher, P.J., Chicchelly, J., and Telleen, S.J.  Opinion by Telleen, S.J.  (13 pages)

            Following his conviction for setting fire to his ex-wife’s home, Ellis Houk challenges the denial of his motion to strike two jurors for cause and the admission of cell tower evidence linking him to the scene of the fire.  OPINION HOLDS:  Because we find Houk cannot show sufficient prejudice to secure a new trial on his jury selection claim, and because he failed to preserve his evidentiary objection, we affirm his conviction and sentence.

            Appeal from the Iowa District Court for Muscatine County, Tamra Roberts, Judge.  AFFIRMED.  Considered by Schumacher, P.J., and Buller and Langholz, JJ.  Opinion by Buller, J.  (12 pages)

            A former spouse appeals from a dissolution decree, challenging its economic provisions and requesting appellate attorney fees.  OPINION HOLDS: We affirm the decree on the merits and decline to award appellate attorney fees.

            Appeal from the Iowa District Court for Buena Vista County, Charles Borth, Judge.  AFFIRMED.  Considered by Greer, P.J., and Buller and Langholz, JJ.  Opinion by Buller, J.  (7 pages)

            A plaintiff appeals the district court order denying her breach-of-contract petition relating to real estate.  OPINION HOLDS: Because she attempted to modify the terms of the contract before communicating acceptance, the plaintiff rejected the offer and no contract was formed.  We affirm.

            Appeal from the Iowa District Court for Scott County, Mark R. Lawson, Judge.  AFFIRMED.  Considered by Tabor, C.J., Langholz, J., and Carr, S.J.  Opinion by Carr, S.J.  (9 pages)

            Henry Lamont Myles appeals the district court’s denial of his application for postconviction relief, arguing the district court wrongly denied the application because (1) his trial counsel was ineffective in failing to explain the meaning of an “open” plea agreement to him and in failing to file a motion in arrest of judgment after it became clear that Myles misunderstood the plea agreement and (2) he is actually innocent of the charge of kidnapping in the third degree.  OPINION HOLDS: We affirm, finding Myles’s trial counsel was not ineffective and Myles failed to show clear and convincing evidence that he was factually innocent of false imprisonment.

            Appeal from the Iowa District Court for Scott County, Stuart P. Werling, Judge.  AFFIRMED.  Considered by Tabor, C.J., and Ahlers and Sandy, JJ.  Opinion by Ahlers, J.  (7 pages)

            Kerri Webber appeals from the decree dissolving her marriage to Jeffery Thoene.  Kerri challenges the district court’s decision to place the parties’ child in their joint physical care.  She argues it is in the child’s best interests to be placed in her physical care.  Both parties seek appellate attorney fees.  OPINION HOLDS: Joint physical care best serves the child’s interests.  We decline to award either party appellate attorney fees.