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2019 Archive | Most Recent Court of Appeals Summaries

For summaries from opinions prior to August, 2018, view PDF versions here

Opinion Summaries

Case No. 18-0222:  Michelle Lynn Kehoe v. State of Iowa

Filed Dec 18, 2019

View Opinion No. 18-0222

            Appeal from the Iowa District Court for Buchanan County, Richard D. Stochl, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (24 pages)

            Michelle Kehoe appeals from the denial of her application for postconviction relief (PCR), following her 2009 convictions for murder in the first degree, attempted murder, and child endangerment resulting in serious injury.  Kehoe argues she received ineffective assistance from trial counsel when counsel failed to 1) move to suppress the incriminating statements she made to police while in the hospital without first receiving Miranda warnings, 2) secure a different, more remote change of venue, and 3) raise the issue of Kehoe’s competency to stand trial.  In her supplemental pro se brief, Kehoe joins some of the arguments made by counsel and also lists a number of errors she believes the PCR court made in its ruling.  OPINION HOLDS: Because Kehoe has not proved any of her claims of ineffective assistance have merit, we affirm the denial of her application for PCR.  As for her pro se claims, she makes no cognizable legal claims and her supplemental pro se brief fails to comport with the appellate rules of procedure; we do not consider any of those issues.

Case No. 18-0328:  State of Iowa v. Joshua Richard Cory

Filed Dec 18, 2019

View Opinion No. 18-0328

            Appeal from the Iowa District Court for Boone County, Steven J. Oeth, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J. (5 pages)

            Joshua Cory appeals his conviction, following a guilty plea, of possession of methamphetamine with intent to deliver and the sentence imposed.  OPINION HOLDS: We affirm Cory’s conviction and sentence. 

Case No. 18-0536:  State of Iowa v. Chad Leroy Wilson

Filed Dec 18, 2019

View Opinion No. 18-0536

            Appeal from the Iowa District Court for Mills County, James S. Heckerman, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  Special concurrence by Tabor, P.J. (11 pages)

           

            Chad Wilson appeals his convictions, following a jury trial, of one count of sexual abuse in the third degree, two counts of lascivious acts with a child, and two counts of indecent contact with a child.  He also challenges the sentences imposed.  He argues (1) the court abused its discretion in denying his motions for a mistrial and new trial upon complaints about the presentation of prior-bad-acts evidence; (2) his trial counsel rendered ineffective assistance in failing to object to a jury instruction; (3) his stipulation to a prior conviction for sentencing-enhancement purposes was not entered knowingly and voluntarily; (4) the provision in the sentencing order requiring him to pay court costs, including attorney fees, fails to conform with the oral pronouncement of sentence or, alternatively, was improperly ordered without a determination of his reasonable ability to pay; and (5) the court’s entry of a lifetime sentencing no-contact order was illegal.  OPINION HOLDS: We affirm Wilson’s guilty verdicts but reverse the district court’s findings in support of the enhancements under sections 901A.2(1) and 902.14 and remand for further proceedings under Iowa Rule of Criminal Procedure 2.19(9).  Having reversed the prior-conviction findings, we likewise vacate the sentences imposed and the court’s written sentencing order.  Having vacated the sentences imposed and the court’s written sentencing order, we find it unnecessary to address Wilson’s restitution challenge.  Because we have vacated the sentences and the sentencing order, the no-contact order included in the sentencing order is likewise vacated.  For protection of the victim, we direct the previously issued temporary no-contact order be reinstated.  After further proceedings on remand and upon resentencing, the court may enter a no-contact order.  SPECIAL CONCURRENCE ASSERTS: I would preserve the claim of ineffective assistance of counsel for failing to object to the jury instruction equating out-of-court admissions by a party opponent with in-court testimony.  As I discussed in two previous dissents, I believe this instruction is flawed and misleads the jurors. 

Case No. 18-0586:  State of Iowa v. Dmarithe Culbreath

Filed Dec 18, 2019

View Opinion No. 18-0586

            Appeal from the Iowa District Court for Scott County, Joel W. Barrows, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J. (2 pages)           

            Dmarithe Culbreath appeals the sentences imposed following his guilty pleas in two criminal cases and his stipulation to probation violations in two other criminal cases.  OPINION HOLDS: We affirm the sentences imposed but preserve Culbreath’s due process claims for postconviction relief.

Case No. 18-0606:  State of Iowa v. Untril D. Overstreet

Filed Dec 18, 2019

View Opinion No. 18-0606

           Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J. (5 pages)           

            Untril Overstreet appeals multiple criminal convictions stemming from a traffic stop.  He raises two arguments on appeal: (1) the district court abused its discretion in denying his request to continue trial for the purpose of filing a motion to suppress and (2) his attorneys rendered ineffective assistance in failing to move for suppression of evidence obtained following the stop on the basis that the stop was pretextual and therefore in violation of article I, section 8 of the Iowa Constitution.  OPINION HOLDS: We conclude the district court did not abuse its discretion in denying Overstreet’s motion to continue and Overstreet’s attorneys were not ineffective as alleged.  We affirm Overstreet’s convictions.

Case No. 18-0672:  Terry Daniels v. State of Iowa

Filed Dec 18, 2019

View Opinion No. 18-0672

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  REVERSED AND REMANDED FOR NEW TRIAL.  Considered by Bower, C.J., and Potterfield and Tabor, JJ.  Opinion by Potterfield, J.  (15 pages)

            Terry Daniels challenges the denial of his application for postconviction relief, following his 2014 convictions for possession of or conspiracy to possess more than fifty grams of cocaine base with the intent to deliver and failure to possess a drug tax stamp.  As he did before the PCR court, Daniels claims he received ineffective assistance from trial counsel when counsel failed to 1) object to incomplete jury instructions on aiding and abetting and 2) challenge the two amendments to the trial information.  Daniels also claims he received ineffective assistance from his direct appeal counsel, maintaining counsel should have challenged the district court’s ruling there was sufficient evidence to include Latasha Daniels as a co-conspirator in the marshalling instruction.  In his pro se brief, Daniels joins the arguments made by counsel and also argues 1) trial counsel was ineffective for allowing him to waive his right to be tried within one year after the one-year deadline had already passed, 2) there was insufficient evidence to support the alternative theories presented to the jury, and 3) the verdict against him was not unanimous.  OPINION HOLDS: Because trial counsel breached an essential duty in failing to object to incomplete jury instructions and Daniels was prejudiced by it, we reverse his conviction for possession of or conspiracy to possess more than fifty grams of cocaine base with the intent to deliver.  We remand for new trial.

Case No. 18-0733:  State of Iowa v. Fontae C. Buelow

Filed Dec 18, 2019

View Opinion No. 18-0733

            Appeal from the Iowa District Court for Dubuque County, Monica L. Zrinyi Wittig, Judge.  REVERSED AND REMANDED.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (14 pages)

            Fontae Buelow appeals his conviction for second-degree murder.  At trial, Buelow claimed the decedent committed suicide.  He argues the district court erred by excluding evidence concerning the decedent’s mental health.  OPINION HOLDS: The district court erred by improperly excluding evidence supportive of Buelow’s suicide defense.  The error was not harmless.  So we must reverse and remand.

Case No. 18-0899:  State of Iowa v. Cliff Allen Lowe

Filed Dec 18, 2019

View Opinion No. 18-0899

            Appeal from the Iowa District Court for Appanoose County, Lucy J. Gamon, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Doyle, J., and Scott, S.J.  Opinion by Scott, S.J.  (3 pages)

            Cliff Lowe appeals his conviction of third-offense possession of a controlled substance, as a habitual offender, claiming his counsel rendered ineffective assistance in failing to move for suppression of evidence obtained following an allegedly illegal pretextual stop and subsequent inventory search of a vehicle in which he was a passenger.  OPINION HOLDS: We find counsel was under no duty to pursue the meritless arguments and Lowe was not prejudiced.  We affirm Lowe’s conviction.

Case No. 18-0949:  State of Iowa v. Gary Dean Terry, Jr.

Filed Dec 18, 2019

View Opinion No. 18-0949

            Appeal from the Iowa District Court for Muscatine County, Gary P. Strausser, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Gary Dean Terry appeals his judgment and sentence for domestic abuse assault with intent to inflict serious injury, arguing that the evidence was insufficient to support the jury’s finding of guilt and his trial attorney was ineffective in failing to move for new trial on the ground the finding was against the weight of the evidence.  OPINION HOLDS: Because a reasonable juror could have found Terry committed an act that was meant to cause pain or injury and he intended to cause a serious bodily injury, and because we are not convinced there is a reasonable probability the district court would have granted a motion for a new trial, we affirm.

Case No. 18-1299:  State of Iowa v. Lynne Ann Gillen

Filed Dec 18, 2019

View Opinion No. 18-1299

            Appeal from the Iowa District Court for Polk County, Heather L. Lauber, Judge.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (3 pages)

            Lynne Gillen appeals the restitution ordered following her guilty plea to operating a motor vehicle while intoxicated, first offense, arguing the district court erred in ordering her to pay restitution at the time of sentencing.  OPINION HOLDS: Applying State v. Albright, 925 N.W.2d 144, 160–63 (Iowa 2019), we vacate the restitution part of the sentencing order and remand the case to the district court.

Case No. 18-1304:  State of Iowa v. Frank John Nucaro

Filed Dec 18, 2019

View Opinion No. 18-1304

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Bower, C.J. (9 pages)

            Frank Nucaro appeals the denial of his application for postconviction relief.  OPINION HOLDS: We find Nucaro has failed to establish the requisite prejudice on his claims.  We affirm.

Case No. 18-1315:  Nationwide Agribusiness Insurance Company, as subrogee of Farmers Cooperative Company v. PGI International; Cox Manufacturing Company d/b/a Dalton AG Products, Inc., and CNH Corp. a/k/a CNH America, LLC, a/s/o DMI, Inc.

Filed Dec 18, 2019

View Opinion No. 18-1315

            Appeal from the Iowa District Court for Boone County, William C. Ostlund, Judge.  AFFIRMED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (16 pages)

            Nationwide Agribusiness Insurance Company (Nationwide) appeals the district court’s decision denying its motion for a new trial in this action for contribution from PGI International (PGI), Dalton Ag Products, Inc. (Dalton Ag), and CNH Corporation.  OPINION HOLDS: We conclude (1) the district court did not abuse its discretion in determining evidence of an OSHA violation by FCC was relevant to the issue of FCC’s negligence; (2) Nationwide has not preserved error on its claims concerning other similar incidents because it did not make an offer of proof; (3) the district court did not err in granting a directed verdict to Dalton Ag on Nationwide’s design defect claim; (4) the district court did not err in granting a directed verdict to PGI on Nationwide’s claim of breach of an implied warranty of fitness for a particular purpose; and (5) the district court did not err by including the Shaws on the special verdict form.  We affirm the decision of the district court.

Case No. 18-1344:  State of Iowa v. Roy Dean Dewitt

Filed Dec 18, 2019

View Opinion No. 18-1344

            Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.  SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (6 pages)

            Roy DeWitt appeals his sentence following a guilty plea to eight counts of invasion of privacy.  OPINION HOLDS: Because the plea agreement was conditioned on the district court’s concurrence and the court rejected the plea agreement, DeWitt was entitled to withdraw his plea.  We vacate DeWitt’s sentence and remand for further proceedings consistent with the opinion.   

Case No. 18-1424:  Betty Ann Nall v. State of Iowa

Filed Dec 18, 2019

View Opinion No. 18-1424

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (3 pages)

            Betty Nall appeals from the district court’s dismissal of her application for postconviction relief following her convictions of theft and forgery.  OPINION HOLDS: Nall’s claims, while raised under an ineffective-assistance-of-counsel rubric, implicate the identical sentencing question decided by the supreme court in State v. Nall, 894 N.W.2d 514 (Iowa 2017).  We affirm the postconviction court’s grant of the State’s motion for summary judgment.

Case No. 18-1471:  State of Iowa v. Michael Lee Syperda

Filed Dec 18, 2019

View Opinion No. 18-1471

            Appeal from the Iowa District Court for Henry County, Mark Kruse, Judge.  JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (29 pages)

            This is a murder case without a body.  Elizabeth Syperda has been missing since July 2000.  She was married to Michael Syperda, but she had recently left him to pursue a relationship with a co-worker.  Elizabeth’s friends and family testified to Michael’s long history of physical abuse and death threats towards Elizabeth.  Michael was charged and convicted of first-degree murder.  He now appeals.  OPINION HOLDS: Because the totality of evidence supports a second-degree murder conviction and the State did not prove beyond a reasonable doubt that Michael acted with the specific intent to kill, we reverse the first-degree murder conviction and remand for entry of judgment and sentence on second-degree murder.  Also, we find that the suppression hearing magistrate had a substantial basis for concluding that probable cause existed to support the search warrant.  Next, we find that no abuse in discretion in the district court’s admission of prior acts evidence.  Also, we may consider Michael’s pro se brief filed before the effective date of a recent statutory amendment prohibiting pro se filings.  Finally, we find Michael cannot show he was prejudiced by counsel allowing a witness to testify by video deposition and that the record is not adequate to address other claims of ineffective assistance of counsel.

Case No. 18-1504:  State of Iowa v. Chad Richard Chapman

Filed Dec 18, 2019

View Opinion No. 18-1504

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J. (7 pages)

            Chad Chapman appeals following his guilty plea to child endangerment, arguing the district court erred in (1) imposing the special sentence and law-enforcement-initiative surcharge; (2) ordering restitution of court costs “without first determining his reasonable ability to pay such costs”; and (3) determining his offense was sexually motivated, a predicate to placement on the sex offender registry.  OPINION HOLDS: (1) The State concedes error on the first point and agrees we must “vacate those parts of Chapman’s sentence.”  (2) Based on State v. Albright, 925 N.W.2d 144, 160–62 (Iowa 2019), we vacate the order for payment of court costs pending completion of a final restitution order.  (3) Because the record contains insufficient evidence to support the district court’s finding that Chapman’s offense was sexually motivated, we vacate the portion of the sentencing order requiring him to register as a sex offender and remand for resentencing. 

Case No. 18-1548:  State of Iowa v. Deirdre Laine Witham

Filed Dec 18, 2019

View Opinion No. 18-1548

            Appeal from the Iowa District Court for Cerro Gordo County, Adam D. Sauer, District Associate Judge.  JUDGMENT OF CONVICTION AFFIRMED; SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (2 pages)

            Deirdre Laine Witham appeals her sentence following a guilty plea to operating a motor vehicle while intoxicated, third offense.  OPINION HOLDS: We vacate the restitution part of the sentencing order and remand the case to the district court to order restitution in a manner consistent with State v. Albright, 925 N.W.2d 144 (Iowa 2019).

Case No. 18-1563:  State of Iowa v. Jodie Marie Hill

Filed Dec 18, 2019

View Opinion No. 18-1563

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

            Jodie Hill appeals the imposition of consecutive sentences following her guilty pleas.  She contends the district court violated Iowa Rule of Criminal Procedure 2.23(3)(d) by failing to state on the record the reasons for its decision to impose consecutive sentences.  OPINION HOLDS: The court complied with rule 2.23(3)(d) in checking the box on the written form sentencing order giving its reasons for imposition of consecutive sentences. 

Case No. 18-1702:  In re the Marriage of Christy

Filed Dec 18, 2019

View Opinion No. 18-1702

            Appeal from the Iowa District Court for Warren County, Bradley McCall, Judge.  MODIFICATION REVERSED; WRIT ANNULLED IN PART AND SUSTAINED IN PART.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (13 pages)

            Jamie Plambeck appeals the district court’s order modifying the physical-care award in her divorce decree with Mathew Christy.  Jamie also appeals the district court’s findings that she is in contempt for denying Matthew’s spring break visitation with their daughter P.L.C., for refusing to allow Matthew telephone contact with P.L.C for two weeks, and for failing to communicate regarding the child’s preschool enrollment.  OPINION HOLDS: Because we find Matthew did not prove a substantial and material change in circumstances, we reverse the modification ruling.  Also, because Matthew did establish beyond a reasonable doubt that Jamie violated the decree by refusing him communication with P.L.C. and not providing timely updates on her preschool enrollment, we affirm two of the three contempt findings.   

Case No. 18-1745:  State of Iowa v. Daniel Lynn Smith

Filed Dec 18, 2019

View Opinion No. 18-1745

            Appeal from the Iowa District Court for Polk County, Jeffrey Farrell, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J.  (3 pages)

            Daniel Smith appeals his conviction of possession of methamphetamine with intent to deliver, second or subsequent offense, and the sentence imposed.  OPINION HOLDS: We affirm Smith’s conviction and sentence. 

 

Case No. 18-1806:  State of Iowa v. Donnie Ray Thurman

Filed Dec 18, 2019

View Opinion No. 18-1806

            Appeal from the Iowa District Court for Polk County, Gregory D. Brandt, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (3 pages)

            Donnie Ray Thurman appeals his sentence following a guilty plea to driving while barred as a habitual offender.  OPINION HOLDS: We discern no abuse of discretion in the district court’s sentencing decision.

Case No. 18-1813:  Dwight Murray v. State of Iowa

Filed Dec 18, 2019

View Opinion No. 18-1813

            Appeal from the Iowa District Court for Linn County, Sean W. McPartland, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (7 pages)

            Dwight Murray appeals the dismissal of his application for postconviction relief.  OPINION HOLDS: Murray identified no new ground of law to excuse his filing beyond the three-year statute of limitations for postconviction-relief actions.

Case No. 18-1942:  State of IOwa v. Alex Gregory Welch

Filed Dec 18, 2019

View Opinion No. 18-1942

            Appeal from the Iowa District Court for Cerro Gordo County, James M. Drew, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J.  (3 pages)

            Alex Welch appeals the sentences imposed upon two felony drug convictions.  OPINION HOLDS: We affirm the sentences imposed.

Case No. 18-1945:  Eduardo Artemio Rodriguez Lopez v. State of Iowa

Filed Dec 18, 2019

View Opinion No. 18-1945

            Appeal from the Iowa District Court for Dickinson County, David A. Lester, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (4 pages)

            Eduardo Rodriguez Lopez appeals from the order denying his application for postconviction relief (PCR).  OPINION HOLDS: Rodriguez Lopez’s claim of ineffective assistance of PCR counsel is too general to address on appeal.  He claims his trial counsel was ineffective by admitting he was ready for trial and misusing time and resources fail because he is unable to show prejudice.  He waived a third claim of ineffective assistance of trial counsel, and his claim that the trial court erred in overruling his motion for judgment of acquittal is procedurally barred. 

Case No. 18-1997:  State of Iowa v. Eric Chandler Parmenter

Filed Dec 18, 2019

View Opinion No. 18-1997

            Appeal from the Iowa District Court for Dallas County, Gregory A. Hulse, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Potterfield, J.  (18 pages)

            Defendant Eric Parmenter appeals from the judgment and sentence imposed following his conviction on two counts of sexual abuse in the third degree in violation of Iowa Code sections 709.1 and 709.4(1)(a) (2010).   On appeal, Parmenter argues (1) the State’s abandonment of the charged timeframe for both counts deprived him of his due process rights; (2) the State committed prosecutorial misconduct by telling the jury to ignore the dates of the alleged incidents specified in the jury instructions; (3) Parmenter’s right to a fair trial was violated when the district court admitted the testimony of a non-sequestered rebuttal witness; and (4) the verdict was contrary to the weight of the evidence.  OPINION HOLDS: Parmenter’s prosecutorial misconduct, fair trial, and weight of the evidence claims were preserved; his due process claim related to the prosecutor’s statement during closing arguments was not.  Parmenter has not shown the prosecutor committed misconduct by arguing the dates listed in the jury instructions were irrelevant during rebuttal argument.  We cannot say the district court’s admission of the rebuttal witness’s testimony was clearly untenable.  Because the district court failed to exercise its discretion when weighing the evidence, we reverse and remand this case to the district court for proceedings consistent with this opinion.

Case No. 18-2013:  In re the Marriage of Brockman

Filed Dec 18, 2019

View Opinion No. 18-2013

            Appeal from the Iowa District Court for Page County, Timothy O’Grady, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (5 pages)

            Jessalyn Brockman appeals the child custody provisions of the decree dissolving her marriage to Matthew Brockman.  OPINION HOLDS: Like the district court, we find that awarding Matthew physical care is in the child’s best interests.  We affirm the custody provisions of the dissolution decree and the district court’s decision to deny an award of trial attorney fees.  We decline to award Jessalyn her attorney fees on appeal. 

Case No. 18-2083:  State of Iowa v. Wildor Juste

Filed Dec 18, 2019

View Opinion No. 18-2083

            Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.  AFFIRMED.  Heard by Doyle, P.J., and Tabor and Mullins, JJ.  Opinion by Mullins, J.  (22 pages)

            Wildor Juste appeals his conviction of sexual abuse in the second degree.  Juste argues the district court erred in (1) admitting testimony alleged to have improperly vouched for the complaining witness, (2) admitting hearsay statements alleged to bolster out-of-court statements made by the complaining witness, (3) submitting a jury instruction naming a date range in which the alleged abuse took place, (4) denying access to department of human services records relied upon by testifying witnesses, and (5) admitting employment records and related testimony over hearsay objections.  OPINION HOLDS: We affirm Juste’s conviction. 

Case No. 18-2085:  Benjamin Elliott Lane v. State of Iowa

Filed Dec 18, 2019

View Opinion No. 18-2085

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (14 pages)

            Lane is serving two indeterminate, consecutive twenty-five year prison terms on his convictions for sexual abuse in the second degree and burglary in the first degree.  Lane contends that the guarantee of assistance of counsel should be set to a higher standard and his trial counsel was remiss in numerous ways.  He also claims his sentence is cruel-and-unusual punishment.  OPINION HOLDS: Our court is without authority to reach the merits of Lane’s novel legal approach to set a higher standard for assistance of counsel.  In addition, we find that counsel did not breach his duty with respect to his assistance in legal counseling.  Finally, we do not find Lane’s argument satisfies the threshold test to show that his sentence constituted cruel-and-unusual punishment.

Case No. 18-2098:  State of Iowa v. Jeremy Rutter

Filed Dec 18, 2019

View Opinion No. 18-2098

            Appeal from the Iowa District Court for Black Hawk County, Linda M. Fangman and David P. Odekirk, Judges.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Greer, JJ.  Opinion by Greer, J. (9 pages)

            Jeremy Rutter appeals his conviction and sentence for two counts of possession with intent to deliver and one drug tax stamp violation.  Rutter argues a warrantless search of the master bedroom of his home was unconstitutional under the federal and state constitutions.  OPINION HOLDS: We conclude the warrantless search of the bedroom was based on voluntary consent and the district court properly denied Rutter’s motion to suppress. 

Case No. 18-2155:  Karen Lee Doren v. State of Iowa

Filed Dec 18, 2019

View Opinion No. 18-2155

            Appeal from the Iowa District Court for Fayette County, Richard D. Stochl, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Schumacher, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (3 pages)

            Karen Doren appeals from the summary dismissal of her application for postconviction relief (PCR).  OPINION HOLDS: The PCR court correctly dismissed Doren’s PCR application because she filed beyond the statute of limitations and no exception applied.

Case No. 18-2202:  State of Iowa v. Troy J. Ford

Filed Dec 18, 2019

View Opinion No. 18-2202

            Appeal from the Iowa District Court for Scott County, Cheryl E. Traum, District Associate Judge.  REVERSED AND REMANDED.  Considered by Doyle, P.J., Tabor, J., and Vogel, S.J.  Opinion by Tabor, J.  Dissent by Vogel, S.J.  (14 pages)

            Troy Ford appeals his conviction for third-offense possession of marijuana asserting the district court erred in denying his motion to suppress.  A police officer mistakenly arrested Ford based on an outstanding warrant for a different individual with the same name.  Ford contends the arrest was invalid so the search incident to arrest revealing the marijuana was unconstitutional and the district court should have suppressed it.  OPINION HOLDS: Because the officer did not act reasonably in searching Ford before verifying his identity as the person with the warrant, we reverse the suppression ruling and remand for further proceedings consistent with this opinion.  DISSENT ASSERTS: Because I believe the district court properly denied Ford’s motion to suppress based on the arresting officer reasonably matching Ford with the outstanding warrants, I would affirm his conviction and sentence.

Case No. 18-2215:  In the Matter of N.P., Alleged to Be Seriously Mentally Impaired

Filed Dec 18, 2019

View Opinion No. 18-2215

            Appeal from the Iowa District Court for Woodbury County, Jeffery L. Poulson and Zachary Hindman, Judges.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (6 pages)

            N.P. appeals the district court’s findings of serious mental impairment, alleging her procedural due process rights were violated.  She raises two procedural due process issues: (1) an ex parte communication denied her a fair and impartial hearing and (2) the applicant’s attorney was prohibited from being present and participating at the hearings.  OPINION HOLDS: N.P.’s due process rights were not violated.  So reversal is not warranted.

Case No. 18-2249:  State of Iowa v. Jhamond McMullen

Filed Dec 18, 2019

View Opinion No. 18-2249

            Appeal from the Iowa District Court for Polk County, Jeffrey Farrell and David May, Judges.  AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR RESENTENCING.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  May, J., takes no part.  Opinion by Doyle, P.J. (12 pages)

            Jhamond McMullen appeals his convictions, sentences, and judgment following a bench trial and verdict finding him guilty of several drug-related offenses.  OPINION HOLDS:  Upon our review, we vacate and remand the district court’s sentencing order for changes consistent with the opinion, and we affirm in all other respects.

Case No. 19-0067:  In re the Marriage of Shirbroun

Filed Dec 18, 2019

View Opinion No. 19-0067

            Appeal from the Iowa District Court for Carroll County, Gary McMinimee, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (7 pages)

            Joshua Shirbroun appeals the denial of his motion to set aside a default decree.  OPINION HOLDS: None of the factors weigh in favor of setting aside the default judgment.  Consequently, we find no abuse of discretion in the district court’s refusal to do so and affirm.

 

Case No. 19-0136:  In re the Marriage of Carter

Filed Dec 18, 2019

View Opinion No. 19-0136

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

            Jeffrey William Carter appeals the order awarding Lilliana Castano Carter attorney fees and costs incurred during the parties’ divorce proceedings.  OPINION HOLDS: The district court properly exercised its discretion in determining the attorney fee award, and we decline to disturb it on appeal.  We remand to the district court to determine a reasonable award of Lilliana’s appellate attorney fees.

Case No. 19-0250:  State of Iowa v. Alexander William Bertrand

Filed Dec 18, 2019

View Opinion No. 19-0250

            Appeal from the Iowa District Court for Polk County, Gregory D. Brandt and Carol L. Coppola, District Associate Judges.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (7 pages)

            Alexander Bertrand appeals his conviction for operating while intoxicated (OWI), first offense, challenging the denial of his motion to suppress.  He maintains his constitutional right to be free from unreasonable searches and seizures was violated because there was no probable cause or reasonable suspicion for the traffic stop.  OPINION HOLDS: On our de novo review of the facts here, we find there was reasonable suspicion justifying the traffic stop.  The district associate court properly overruled Bertrand’s motion to suppress.  We affirm Bertrand’s conviction for first-offense OWI.

Case No. 19-0291:  In the Interest of S.S., Minor Child

Filed Dec 18, 2019

View Opinion No. 19-0291

            Appeal from the Iowa District Court for Warren County, Kevin Parker, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (7 pages)

            J.S. appeals the termination of his parental rights to his minor child, S.S.  He argues he did not abandon S.S. under Iowa Code section 600A.8(3)(b) (2017) and termination is not in S.S.’s best interests.  OPINION HOLDS: Because the mother has shown by clear and convincing evidence the father abandoned the child and termination is in the child’s best interests we affirm the district court’s order terminating the father’s parental rights. 

Case No. 19-0560:  In the Matter of K.G., Alleged to be Seriously Mentally Impaired

Filed Dec 18, 2019

View Opinion No. 19-0560

            Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi Wittig, Judge.  AFFIRMED.  Considered by Bower, C.J., and Potterfield and Greer, JJ.  Opinion by Potterfield, J.  (10 pages)

            K.G. challenges the civil commitment order issues pursuant to Iowa Code chapter 229 (2018).  On appeal, K.G. argues (1) the State failed to meet its burden to prove by clear and convincing evidence that she was a danger to herself or others due to her mental illness; (2) the district court erred in not appropriately conducting a de novo hearing under Iowa Code section 229.21(3); and (3) the district court erred by taking judicial notice of two criminal complaints involving K.G. in violation of K.G.’s rights under the Fifth Amendment to the United States Constitution.  OPINION HOLDS: Sufficient evidence supports the district court’s determination that K.G. was likely to harm herself or others if released.  The district court did not err by taking judicial notice of the criminal complaints against K.G. 

Case No. 19-0606:  In re the Marriage of Tedrow

Filed Dec 18, 2019

View Opinion No. 19-0606

            Appeal from the Iowa District Court for Van Buren County, Shawn Showers, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (3 pages)

            Eric Tedrow appeals from the decree dissolving his marriage to Kelly Tedrow.  He argues the district court erred in granting Kelly physical care of their child.  OPINION HOLDS: Following our de novo review, we conclude physical care was properly awarded to Kelly.  So we affirm the district court.  But we decline to award Kelly appellate attorney fees.

Case No. 19-0623:  In re the Marriage of Minjares Simental

Filed Dec 18, 2019

View Opinion No. 19-0623

            Appeal from the Iowa District Court for Marshall County, John J. Haney, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (5 pages)

            Rogelio Minjares Simental appeals the denial of his petition to modify the child custody provisions of the decree dissolving his marriage to Maria Socorro Minjares.  OPINION HOLDS: Because there has not been a substantial change in circumstances that was not within the contemplation of the court when it entered the dissolution decree, we affirm the denial of the petition to modify.  We award Maria her appellate attorney fees.

Case No. 19-0736:  State of Iowa v. Antoine Mario Grisson, Jr.

Filed Dec 18, 2019

View Opinion No. 19-0736

            Appeal from the Iowa District Court for Dubuque County, Robert J. Richter, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (4 pages)

            Antoine Grisson Jr. appeals his sentence for burglary in the third degree, arguing the district court based its sentence on improper factors and insufficient justifications.  OPINION HOLDS: The district court considered the parties’ sentencing recommendations—not rejected plea offers—as well as the facts of the case and the statutory sentencing factors when imposing the sentence.  Because the judge did not consider improper factors or abuse his discretion, we affirm Grisson’s sentence.

Case No. 19-0830:  Stacey L. Sherburne d/b/a G&S Lambs v. Ashton State Bank, a Nebraska Corporation

Filed Dec 18, 2019

View Opinion No. 19-0830

            Appeal from the Iowa District Court for Butler County, Rustin T. Davenport, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (5 pages)

            Stacey Sherburne appeals the district court’s dismissal of his action against Ashton State Bank for lack of jurisdiction.  OPINION HOLDS: A finding of sufficient minimum contacts was the only basis for establishing jurisdiction over Ashton State Bank.  Because those contacts were absent, we discern no error in the district court’s dismissal of Sherburne’s lawsuit.

Case No. 19-0991:  Kristin M. Potter v. Eric J. Smith

Filed Dec 18, 2019

View Opinion No. 19-0991

            Appeal from the Iowa District Court for Polk County, Carla T. Schemmel, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (13 pages)

            Eric Smith appeals from the district court order, which modified Eric’s visitation and denied Eric’s request for an award of physical care after the custodial parent moved to Arizona with the parties’ nine-year-old daughter.  OPINION HOLDS: On review of the entire record, we affirm the district court’s ruling.

Case No. 19-1289:  In the Interest of M.M., Minor Child

Filed Dec 18, 2019

View Opinion No. 19-1289

            Appeal from the Iowa District Court for Washington County, Daniel Kitchen, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (6 pages)

            A mother appeals the termination of her parental rights to her child, asserting she has been denied due process, there has been no showing that termination of parental rights is in the child’s best interests, and she should have been granted an additional six months to seek reunification.  OPINION HOLDS: On our de novo review, we affirm. 

Case No. 19-1316:  In the Interest of B.B., Minor Child

Filed Dec 18, 2019

View Opinion No. 19-1316

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            A mother appeals the termination of her parental rights to one of her children, born in 2018.  She contends the State failed to prove the grounds for termination cited by the district court, termination was not in the child’s best interests, and the court should have declined to terminate her parental rights based on the parent-child bond.  OPINION HOLDS: We affirm the termination of the mother’s parental rights to the child.

Case No. 19-1384:  In the Interest of M.T., Minor Child

Filed Dec 18, 2019

View Opinion No. 19-1384

            Appeal from the Iowa District Court for Johnson County, Deborah Farmer Minot, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (4 pages)

            A father appeals the juvenile court order waiving the requirement that the Iowa Department of Human Services make reasonable efforts to return his child to his care.  OPINION HOLDS:  The father could not care for the child after three years.  Extending the time to offer additional services will not correct the conditions that led to the child’s removal.  Because aggravated circumstances exist to warrant waiving the reasonable-efforts requirement, we affirm.

Case No. 19-1396:  In the Interest of H.B., Minor Child

Filed Dec 18, 2019

View Opinion No. 19-1396

            Appeal from the Iowa District Court for Des Moines County, Emily Dean, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (6 pages)

            Ravin, age twenty-two, appeals an order terminating her parental rights to H.B., her now three-year-old son.  She contends the State did not prove the statutory basis for termination and termination is not in H.B.’s best interests.  OPINION HOLDS: H.B.’s repeated removals are a heartbreaking reminder Ravin cannot overcome her addiction at the present time to provide her son with a safe home.  Termination of Ravin’s parental rights was proper under sections 232.116(1)(h) and 232.116(2) (2019).  We affirm. 

Case No. 19-1432:  In the Interest of J.M., Minor Child

Filed Dec 18, 2019

View Opinion No. 19-1432

            Appeal from the Iowa District Court for Scott County, Cheryl Traum, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J.  (4 pages)

            A mother appeals the termination of her parental rights pursuant to Iowa Code section 232.116(1)(d), (h), and (i) (2019).  OPINION HOLDS: Although the mother and child share a bond, it is not in the child’s best interests to continue to wait for permanency. 

 

Case No. 19-1539:  In the Interest of A.H., T.S., and T.S., Minor Children

Filed Dec 18, 2019

View Opinion No. 19-1539

            Appeal from the Iowa District Court for Mitchell County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (7 pages)

            A mother appeals the termination of her parental rights to three minor children, arguing that an exception under Iowa Code section 232.116(3)(c) (2019) applies to prevent termination based on the closeness of the parent-child relationship.  OPINION HOLDS: The mother has failed to prove by clear and convincing evidence that the exception to termination applies.  We affirm.

Case No. 19-1679:  In the Interest of J.C., Minor Child

Filed Dec 18, 2019

View Opinion No. 19-1679

            Appeal from the Iowa District Court for Linn County, Cynthia S. Finley, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (4 pages)

            A mother appeals the termination of her parental rights to her child.  OPINION HOLDS: The State proved the grounds for termination under Iowa Code section 232.116(1)(h) (2019) where clear and convincing evidence shows the child could not be returned to the mother’s care at the time of the termination hearing because of her ongoing substance use.  Because the mother’s substance use prevents her from providing the child a safe and permanent home, termination is in the child’s best interests.

Case No. 19-1711:  In the Interest of G.O., Minor Child

Filed Dec 18, 2019

View Opinion No. 19-1711

            Appeal from the Iowa District Court for Butler County, Peter B. Newell, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Vogel, S.J.  Opinion by Vogel, S.J.  Dissent by Vaitheswaran, P.J.  (8 pages)

            The father of G.O. appeals the termination of his parental rights.  OPINION HOLDS: The father was notified in person and in writing of the date and time of the hearing and appeared with counsel, and the juvenile court did not abuse its discretion in denying his motion to continue the hearing.  The State proved the statutory grounds for termination by clear and convincing evidence.  We agree with the juvenile court that termination of the father’s parental rights is in G.O.’s best interests, and we find no impediments to termination.  DISSENT ASSERTS: I respectfully dissent.  I am not convinced the father’s whereabouts were unknown or could not be ascertained by a reasonably diligent search.  And the father’s awareness of the hearing date did not obviate the need to serve him with notice of the termination proceeding at least seven days before the termination hearing.  I would reverse and remand.

Case No. 19-1731:  In the Interest of L.E., Minor Child

Filed Dec 18, 2019

View Opinion No. 19-1731

            Appeal from the Iowa District Court for Winneshiek County, Linnea M.N. Nicol, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (5 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: Because there is clear and convincing evidence to support termination, termination is in the child’s best interests, and no permissive factor persuades us termination should not occur, we affirm.

Case No. 19-1736:  In the Interest of D.M., A.M., and A.L., Minor Children

Filed Dec 18, 2019

View Opinion No. 19-1736

            Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Vogel, S.J.  Opinion by Vogel, S.J.  (3 pages)

            The mother appeals the dispositional order continuing the removal of her three children.  OPINION HOLDS: We agree with the juvenile court and affirm without further opinion.

Case No. 19-1749:  In the Interest of D.B., A.B., and B.B., Minor Children

Filed Dec 18, 2019

View Opinion No. 19-1749

            Appeal from the Iowa District Court for Jackson County, Mark R. Fowler, Judge.  AFFIRMED.  Considered by Tabor, P.J., Schumacher, J., and Vogel, S.J.  Opinion by Schumacher, J.  (8 pages)

            A mother appeals the termination of her parental rights to her three daughters, D.B., born in 2010, and B.B. and A.B., both born in 2013.  OPINION HOLDS: The district court found, and we concur, that the grounds for termination were proven.  We further find the record does not support that an extension of time for reunification efforts is warranted and termination is in the best interest of the children.  We therefore affirm.

Case No. 19-1773:  In the Interest of S.C., J.C., A.C., and J.C., Minor Children

Filed Dec 18, 2019

View Opinion No. 19-1773

            Appeal from the Iowa District Court for Woodbury County, Mark C. Cord III, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Vogel, S.J.  Opinion by Vaitheswaran, P.J.  (4 pages)

            A mother appeals the termination of her parental rights to four children, contending that the record lacks clear and convincing evidence to support the grounds for termination, termination was not in the children’s best interests, and the district court should have afforded her six additional months to work toward reunification.  OPINION HOLDS: We affirm the termination of the mother’s parental rights to her children.

Case No. 19-1796:  In the Interest of H.B. and Z.R., Minor Children

Filed Dec 18, 2019

View Opinion No. 19-1796

            Appeal from the Iowa District Court for Muscatine County, Gary P. Strausser, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (10 pages)

            A mother appeals the termination of her parental rights to two children.  She contends the court should have granted her request for a continuance, the State did not prove the statutory grounds, termination would be detrimental due to the parent-child bond, and the court should have given her more time to work toward reunification.  OPINION HOLDS: On our independent review, we find no basis for reversal.  The district court did not abuse its discretion in denying the mother a continuance.  The State proved the statutory grounds for termination as to each child, and the mother did not show termination would be detrimental.  Finally, given the mother’s long-standing unresolved substance abuse and instability, the record reveals no reason to conclude the problems will be resolved in six months.  We affirm. 

Case No. 19-1824:  In the Interest of P.D., Minor Child

Filed Dec 18, 2019

View Opinion No. 19-1824

            Appeal from the Iowa District Court for Pottawattamie County, Eric J. Nelson, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J. (6 pages)

            A mother appeals the termination of her parental rights to her minor child, born in 2015.  She challenges the sufficiency of the evidence supporting the statutory grounds for termination cited by the juvenile court, argues termination is not in the child’s best interests due to the parent child bond, requests the statutory exception to termination contained in Iowa Code section 232.116(3)(a) be applied and a guardianship be established in the maternal grandmother in lieu of termination, and claims the State failed to make reasonable efforts at reunification.  OPINION HOLDS: We affirm the termination of the mother’s parental rights.

Case No. 18-0209:  State of Iowa v. James Russell Walden Jr.

Filed Nov 27, 2019

View Opinion No. 18-0209

            Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.  AFFIRMED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (21 pages)

            James Walden Jr. appeals from his conviction for first-degree murder challenging an evidentiary ruling, a jury instruction, the sufficiency of the evidence, the weight of the evidence, and ineffectiveness of trial counsel.  OPINION HOLDS: We find the district court did not err in crafting an appropriate remedy when excluded evidence of sexual assault entered the record.  The court’s instruction was supported by the evidence, and the district court did not err in delivering it.  There was sufficient evidence to support the verdict, and it was not against the weight of the evidence.  Finally, we preserve the ineffective-assistance-of-counsel claim for a possible postconviction-relief proceeding.  We affirm. 

Case No. 18-0285:  Donovan F. Lincoln v. State of Iowa

Filed Nov 27, 2019

View Opinion No. 18-0285

            Appeal from the Iowa District Court for Louisa County, Michael J. Schilling, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Potterfield, J., and Blane, S.J.  Opinion by Blane, S.J.  (6 pages)

            Applicant appeals the district court’s denial of his application for postconviction relief (PCR).  In this appeal, he claims his PCR counsel was ineffective for failing to raise the issue that his criminal trial attorney was ineffective for failing to discover and object to the district court relying in part upon his previous conviction for theft in the fifth degree when unrepresented by counsel for denying his request for a deferred judgment on a subsequent charge of theft in the second degree.  OPINION HOLDS: Because this particular issue was not raised before the district court in this PCR proceeding and not ruled upon, we find it is not properly before us in this appeal, and it must be raised in a newly filed PCR application.

Case No. 18-0323:  State of Iowa v. Marlon Derell Harris, Jr.

Filed Nov 27, 2019

View Opinion No. 18-0323

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            Marlon Harris Jr. appeals his convictions of first-degree robbery and second-degree theft, challenging the sufficiency of the evidence supporting the charges.  OPINION HOLDS: We affirm Harris’ judgment and sentence for first-degree robbery and second-degree theft.

Case No. 18-0789:  State of Iowa v. Randy Wayne Camden

Filed Nov 27, 2019

View Opinion No. 18-0789

            Appeal from the Iowa District Court for Marion County, Bradley M. McCall, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J. (3 pages)

            Randy Camden appeals following his guilty plea to four counts of lascivious acts with a child, contending the district court “considered an improper factor” when it relied on the sentencing recommendation in the presentence investigation report and abused its discretion “by refusing to consider placing [him] on probation based on a personal fixed policy.”  OPINION HOLDS: We affirm Camden’s sentence for four counts of lascivious acts with a child.

Case No. 18-0842:  North Skunk River Greenbelt Association, Inc. v. Allen

Filed Nov 27, 2019

View Opinion No. 18-0842

            Appeal from the Iowa District Court for Washington County, Randy S. DeGeest, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Bower, P.J., and May and Greer, JJ.  Opinion by Greer, J.  (20 pages)

            The defendants appeal a bench ruling denying their claims and concluding they were not entitled to indemnification.  OPINION HOLDS: We conclude Scott Allen and Doris Park were not validly removed as directors of the nonprofit corporation and are therefore entitled to mandatory indemnification for reasonable expenses incurred while defending the lawsuit, and we remand to the district court for a calculation of those reasonable expenses.  We further conclude that the defendants failed to prove their conversion claims, they were not entitled to judicial dissolution of the nonprofit corporation, and they failed to establish an abuse of discretion with regard to the district court’s denial of sanctions.

Case No. 18-0846:  State of Iowa v. Larry Jerome Fairfax

Filed Nov 27, 2019

View Opinion No. 18-0846

            Appeal from the Iowa District Court for Scott County, Cheryl Traum, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (3 pages)

            Larry Fairfax appeals his conviction for absence from custody, claiming his counsel provided ineffective assistance.  OPINION HOLDS: The record on appeal is not sufficient to resolve Fairfax’s ineffective-assistance-of-counsel claim.  We affirm.

Case No. 18-0951:  State of Iowa v. Dustin Eugene Pherigo

Filed Nov 27, 2019

View Opinion No. 18-0951

            Appeal from the Iowa District Court for Marshall County, Kim M. Riley, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (9 pages)

            Defendant appeals from a district court order revoking his probation and imposing an indeterminate term of incarceration not to exceed two years.  OPINION HOLDS: We disagree with defendant’s allegations that the court made procedural errors and abused its discretion. 

Case No. 18-0957:  State of Iowa v. Jeremy Elton Batiste

Filed Nov 27, 2019

View Opinion No. 18-0957

            Appeal from the Iowa District Court for Polk County, Carol L. Coppola, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (3 pages)

            Jeremy Batiste appeals the judgment and sentence entered after he pleaded guilty to driving while barred as a habitual offender.  OPINION HOLDS: We find the record and Batitse’s argument too undeveloped to resolve his ineffective-assistance-of-counsel claims.  So we preserve them for postconviction relief and affirm. 

Case No. 18-1100:  Neil Conner, LinDa Stougard, and Dale Conner v. Eva Decker

Filed Nov 27, 2019

View Opinion No. 18-1100

            Appeal from the Iowa District Court for Lucas County, John D. Lloyd, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Tabor, JJ.  Opinion by Tabor, J.  (14 pages)

            Three siblings appeal the district court’s order granting judgment notwithstanding the verdict, vacating an award of punitive damages, and granting a conditional new trial following the jury verdicts on their claims of tortious interference with inheritance, unjust enrichment, and mistake.  OPINION HOLDS: The defendant cannot have acted in good faith in regard to the joint accounts she held with the decedent (although the decedent acted freely, intelligently, and voluntarily) and simultaneously have interfered with the siblings’ inheritance of the funds in those accounts by committing acts of fraud or by exerting undue influence on the decedent.  In addition, even viewing the evidence in the light most favorable to the siblings, this record lacks substantial proof the defendant engaged in fraud or undue influence.  Next, because the siblings did not prove their claim of intentional interference, we affirm the district court’s decision to vacate the award of punitive damages.  Finally, the jury’s award of compensatory damages was not supported by substantial evidence.  We find no abuse of discretion in the court’s order for conditional new trial or remittitur.

Case No. 18-1211:  State of Iowa v. Brian Christner

Filed Nov 27, 2019

View Opinion No. 18-1211

            Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J. (3 pages)

              Brian Christner appeals his conviction of voluntary absence from custody and the sentence imposed.  OPINION HOLDS: We affirm Christner’s conviction and sentence. 

Case No. 18-1362:  State of Iowa v. Jairo Rodriguez

Filed Nov 27, 2019

View Opinion No. 18-1362

            Appeal from the Iowa District Court for Johnson County, Patrick R. Grady, Judge.  REVERSED AND REMANDED.  Considered by Bower, C.J., and Mullins and Greer, JJ.  Opinion by Bower, C.J.  (2 pages) 

            Jairo Rodriguez appeals from the district court’s judgment denying his motion to suppress evidence stemming from a traffic stop.  OPINION HOLDS: Because the same legal reasoning and opinion in a companion case, State v. Salcedo, ___ N.W.2d ___, No. 18-1353, 2019 WL 5849005 (Iowa 2019), recently filed by our supreme court, fully apply here, we reverse and remand.

Case No. 18-1397:  Kara Ganka, As Administrator of the Estate of Bronson Ganka, Kara Ganka, Individually and as Parent and Next Friend of D.G., M.G., and A.G., Minors v. Jeffrey Clark

Filed Nov 27, 2019

View Opinion No. 18-1397

            Appeal from the Iowa District Court for Johnson County, Andrew Chappell, Judge.  AFFIRMED ON APPEAL, CROSS-APPEAL DISMISSED AS MOOT.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (7 pages)

            Bronson Ganka died as a result of a workplace injury.  His widow, Kara Ganka, brought a gross negligence claim against his co-employee, Jeff Clark.  The jury found in favor of Kara.  Jeff moved for judgment notwithstanding the verdict.  The district court granted Jeff’s motion.  Kara appeals.  OPINION HOLDS: We find there was insufficient evidence to prove gross negligence.  So we affirm the grant of judgment notwithstanding the verdict. 

Case No. 18-1453:  Brenda J. Alcala v. Marriott International, Inc. and Courtyard Management Corporation d/b/a Quad Cities Courtyard Management Corporation

Filed Nov 27, 2019

View Opinion No. 18-1453

            Appeal from the Iowa District Court for Scott County, Patrick A. McElyea, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (19 pages)

            A hotel appeals from a jury verdict giving the plaintiff a substantial damages award following a slip-and-fall on ice outside the hotel.  The hotel contends the verdict is excessive as a result of the plaintiff’s evidence inflaming the passions and prejudices of the jury.  The defendant hotel also contends the district court abused its discretion in various evidentiary objections.  OPINION HOLDS: The hotel has not shown the verdict is excessive as a result of the plaintiff inflaming the passions and prejudices of the jury.  The court did not abuse its discretion in permitting the objected-to evidence; other evidence improperly admitted was harmless.  We affirm.

Case No. 18-1637:  Joseph Andrew Leeper v. Pioneer Hi-Bred International, Inc., a/k/a DuPont Pioneer

Filed Nov 27, 2019

View Opinion No. 18-1637

            Appeal from the Iowa District Court for Polk County, Samantha Gronewald, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (6 pages)

            The claimant appeals from the district court’s ruling on judicial review affirming the Workers’ Compensation Commissioner’s denial of permanent disability benefits.  OPINION HOLDS: Having considered all arguments set forth in this appeal, whether or not specifically mentioned in this opinion, we affirm the district court’s ruling on judicial review affirming the agency’s denial of permanent disability benefits under Iowa Court Rule 21.26.

Case No. 18-1658:  In the Matter of the Estate of Charles H. Kline, Deceased.

Filed Nov 27, 2019

View Opinion No. 18-1658

            Appeal from the Iowa District Court for Polk County, Craig E. Block, Associate Probate Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., and Mullins and Greer, JJ.  Opinion by Greer, J.  Special Concurrence by Potterfield, P.J.  (21 pages)

            After a bench trial, the probate court concluded that Tom Kline had failed to establish that his sister, Mary Culp, unduly influenced their father or intentionally interfered with Tom’s inheritance when their father made her a joint owner of all of his bank accounts and certificates of deposit, thereby effectively disinheriting Tom.  OPINION HOLDS: The probate court failed to consider the proper burden of proof and factors when determining whether Mary stood in a confidential relationship to her father.  We conclude a confidential relationship existed between Mary and her father and the burden of proof should have shifted to Mary to rebut the presumption of undue influence by clear, convincing, and satisfactory evidence that she acted in good faith throughout the transaction and her father made the transfer knowingly and intelligently.  We also conclude that Mary failed to rebut the presumption of undue influence and the account assets should be distributed according to the father’s will.  Finally, we conclude that Tom proved Mary intentionally interfered with Tom’s inheritance and he is entitled to damages.  The case is remanded to the probate court for consideration of damages.  SPECIAL CONCURRENCE ASSERTS: I agree with the majority’s conclusion on the substantive issues presented here, but I write separately to quarrel with the formulation of the standard of review on the claim of intentional interference with an inheritance. I would not like to give our district court judges or lawyers the suggestion that a motion to bifurcate was necessary or useful in these circumstances.

Case No. 18-1672:  Panther Deng v. Curtis White, Family Plan 2000, and JACD-S Inc.

Filed Nov 27, 2019

View Opinion No. 18-1672

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Doyle, J.  (12 pages)

            Panther Deng appeals following the entry of a judgment by the district court in favor of the defendants following a trial to the bench.  OPINION HOLDS: We have jurisdiction to consider Deng’s appeal.  However, Deng did not establish by a preponderance of the evidence she suffered any actual damages as a result of the Defendants’ actions within the meaning of Iowa Code chapter 714H (2016).  On our de novo review, we agree with entering judgment in favor of the Defendants.  Accordingly, we affirm the ruling of the district court.

Case No. 18-1715:  Jenny Fishel v. Michael Redenbaugh

Filed Nov 27, 2019

View Opinion No. 18-1715

            Appeal from the Iowa District Court for Linn County, Christopher L. Bruns, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (8 pages)

            Jenny Fishel appeals the district court’s refusal to award financial support as part of a civil domestic-abuse protective order.  OPINION HOLDS: Under Iowa Code section 236.5(1)(b)(6) (2018), the district court may require the defendant to pay “a sum of money for the separate support and maintenance of the plaintiff.”  The court may order this support even if the plaintiff is not otherwise entitled to support under another statutory provision, such as section 598.21A.

Case No. 18-1735:  State of Iowa v. Vickie Jo Williams

Filed Nov 27, 2019

View Opinion No. 18-1735

            Appeal from the Iowa District Court for Guthrie County, Terry R. Rickers, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (9 pages)

            Vickie Williams appeals the district court’s denial of her motion to suppress, arguing that her rights were violated under the Fourth Amendment to the United States Constitution and article 1, section 8 of the Iowa Constitution.  OPINION HOLDS: We conclude there was no seizure, reasonable suspicion existed regardless, and there was no custodial interrogation.  We affirm the district court’s denial of Williams’ suppression motion and her judgment and sentence.

Case No. 18-1868:  In the Matter of E.R., Alleged to Be Seriously Mentally Impaired

Filed Nov 27, 2019

View Opinion No. 18-1868

            Appeal from the Iowa District Court for Polk County, Samantha Gronewald, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (9 pages)

            E.R. appeals the district court decision finding she was seriously mentally impaired.  OPINION HOLDS:  E.R. has not shown she received ineffective assistance due to counsel’s failure to challenge the qualifications of a person signing a physician’s report.  We find there is sufficient evidence to show E.R. was not capable of making responsible decisions about her treatment.  We affirm the decision of the district court.

Case No. 18-1972:  Casey Dixon v. State of Iowa

Filed Nov 27, 2019

View Opinion No. 18-1972

            Appeal from the Iowa District Court for Scott County, Thomas G. Reidel, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (6 pages) 

            Casey Dixon appeals the denial of his postconviction-relief application.  OPINION HOLDS: The due process clauses of the federal and state constitutions do not require retrospective application of the ameliorative sentencing provision set forth in Iowa Code section 902.12(3) (Supp. 2016) to those persons sentenced before July 1, 2016.

Case No. 18-2038:  Nickolas L. Tank v. Holly Sexton n/k/a Holly Teepe

Filed Nov 27, 2019

View Opinion No. 18-2038

            Appeal from the Iowa District Court for Chickasaw County, Richard D. Stochl, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Vogel, S.J.  Opinion by Vogel, S.J.  (3 pages)

            Holly Sexton, now known as Holly Teepe, appeals from the decree that decided physical care of D.T., her child with Nickolas Tank.  OPINION HOLDS: On our de novo review of the record, we agree with the district court’s decision to place physical care with Nickolas, and we affirm without further opinion.

Case No. 18-2059:  Thomas Kohn v. Joseph Muhr

Filed Nov 27, 2019

View Opinion No. 18-2059

            Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer, Judge.  AFFIRMED.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (8 pages)

            Thomas Kohn appeals the district court’s decision declaring him a debtor for purposes of a harvester lien claim.  OPINION HOLDS: We find Kohn was a debtor within the meaning of Iowa Code section 571.1B (2017) and affirm.

Case No. 18-2060:  Anthony Martin Collins, Jr. v. Veronica Marie Natera, n/k/a Veronica Marie Landals

Filed Nov 27, 2019

View Opinion No. 18-2060

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED AS MODIFIED.  Considered by Vaitheswaran, P.J., Potterfield, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (14 pages)

            Anthony Collins Jr. (Tony) appeals the district court’s denial of his petition to modify the parties’ paternity decree to order physical care of the parties’ child with him rather than the child’s mother, Veronica Landals.  OPINION HOLDS: Upon our review, we affirm the order entered by the court, but we conclude equity requires that Veronica pay for the child’s travel costs necessary to facilitate visitation with Tony, and we modify the order in that regard.

Case No. 18-2082:  State of Iowa v. Joseph Ray William Frederick

Filed Nov 27, 2019

View Opinion No. 18-2082

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED.  Considered by Mullins, P.J., Greer, J., and Scott, S.J.  Opinion by Scott, S.J. (9 pages)

            Joseph Frederick appeals multiple criminal convictions following a jury trial.  He argues the district court abused its discretion in allowing the presentation of prior-bad-acts evidence.  OPINION HOLDS: Finding no abuse of discretion, we affirm Frederick’s criminal convictions. 

Case No. 18-2118:  In re the Detention of Dewayne Bethke

Filed Nov 27, 2019

View Opinion No. 18-2118

            Appeal from the Iowa District Court for Mitchell County, Christopher Foy, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and May and Greer, JJ.  Opinion by Potterfield, P.J.  (11 pages)

            Dewayne Bethke appeals from the district court ruling granting the State’s petition to civilly commit him as a sexually violent predator.  Bethke challenges the sufficiency of the evidence supporting the district court’s findings he suffers from a mental abnormality, as defined by Iowa Code section 229A.2(5) (2017), which makes it more likely than not he will commit another sexually violent act.  OPINION HOLDS: Because substantial evidence supports the district court’s determination Bethke is a sexually violent predator, we affirm the district court ruling granting the State’s petition to have him civilly committed.

Case No. 18-2120:  State of Iowa v. Christopher Michael Pate

Filed Nov 27, 2019

View Opinion No. 18-2120

            Appeal from the Iowa District Court for Lucas County, Patrick W. Greenwood, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran, and Doyle, JJ.  Opinion by Vaitheswaran, J.  (6 pages)

            Christopher Pate appeals the district court’s denial of his motion for reconsideration of room-and-board assessment, arguing that he does not have the reasonable ability to pay the assessed restitution of $26,861.26.  OPINION HOLDS: The district court did not abuse its discretion in holding that Pate does have the reasonable ability to pay.

Case No. 18-2140:  In re the Marriage of Wilson

Filed Nov 27, 2019

View Opinion No. 18-2140

            Appeal from the Iowa District Court for Story County, Timothy J. Finn and Steven J. Oeth, Judges.  AFFIRMED AS MODIFIED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (9 pages)

            A former wife appeals the dissolution decree refusing to divide a substantial inheritance of the former husband and challenges the spousal support award.  OPINION HOLDS: The district court properly refused to divide the former husband’s inheritance, and achieved equity in the spousal support award.  We affirm all aspects of the decree except for a minor calculation error pointed out by the former husband.  We modify the decree only to correct this aspect of the equalization payment. 

Case No. 18-2151:  State of Iowa v. Robert Evan Bruce

Filed Nov 27, 2019

View Opinion No. 18-2151

            Appeal from the Iowa District Court for Fremont County, Mark J. Eveloff and Kathleen A. Kilnoski, Judges.  AFFIRMED.  Considered by Mullins, P.J., May, J., and Blane, S.J.  Opinion by Blane, S.J.  (9 pages)

            Robert Bruce appeals from a district court ruling excluding evidence that a passenger was not wearing a seatbelt when he drove his truck into a ditch while intoxicated, resulting in her serious injury.  He contends, under the “but-for” test, the jury should have heard the evidence and been able to determine whether the passenger’s conduct was a “but-for” cause of her injuries.  OPINION HOLDS: The district court did not abuse its discretion in ruling such evidence was not relevant.  Accordingly, we affirm the ruling and conviction. 

Case No. 18-2181:  Dorothy Hollinger v. State of Iowa

Filed Nov 27, 2019

View Opinion No. 18-2181

            Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.  AFFIRMED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (9 pages)

            The State of Iowa appeals the order entering judgment for Dorothy Hollinger on her claim of employment discrimination based on disability.  OPINION HOLDS: Our decision in a prior appeal of this case determined that squatting and kneeling are major life activities under the Iowa Civil Rights Act.  Because that decision is the law of the case, the district court relied on it in finding Hollinger is substantially limited in those major life activities and thus is a person with a disability under the statute. 

Case No. 19-0031:  Slashfrog, LLC d/b/a All Day Homes v. Ethan Quick and Jordan Quick

Filed Nov 27, 2019

View Opinion No. 19-0031

            Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge.  AFFIRMED ON APPEAL; AFFIRMED AS MODIFIED ON CROSS-APPEAL.  Considered by Potterfield, P.J., and Mullins and Greer, JJ.  Opinion by Greer, J.  (13 pages)

            Slashfrog, LLC appeals and Ethan and Jordan Quick cross-appeal from the rulings of the district court related to the contract terms and resulting breaches.  On appeal, Slashfrog argues the court erred in finding it breached the contract and in excluding most of its damages evidence as speculative.  On cross-appeal, Quicks contend the court erred in finding the contract was not unconscionable and in finding they also breached the contract.  OPINION HOLDS: We find no error in granting summary judgment for Slashfrog on Quicks’ unconscionability claim and in finding Slashfrog breached the contract.  However, we find Quicks substantially performed their obligations under the contract and award them the earnest money.  Because of its cancellation of the contract, we do not reach Slashfrog’s arguments about its damages.  We thus affirm the rulings of the district court with some modification.

Case No. 19-0084:  In the Matter of T.M., Alleged to Be Seriously Mentally Impaired

Filed Nov 27, 2019

View Opinion No. 19-0084

            Appeal from the Iowa District Court for Polk County, Scott J. Beattie, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (5 pages)

            T.M. appeals the district court order finding him to be seriously mentally impaired.  OPINION HOLDS: We find there is sufficient evidence to conclude T.M. (1) is mentally ill, (2) lacks sufficient judgment to make responsible decisions with respect to his treatment, and (3) is likely to physically injure himself or others if allowed to remain at liberty without treatment, is likely to inflict serious emotional injury on a designated class of persons, and is unable to satisfy his need for nourishment, clothing, essential medical care, or shelter so that it is likely that he will suffer physical injury, physical debilitation, or death.  We affirm the decision of the district court.

Case No. 19-0253:  In re the Marriage of Goble

Filed Nov 27, 2019

View Opinion No. 19-0253

            Appeal from the Iowa District Court for Des Moines County, John M. Wright, Judge.  REVERSED AND REMANDED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Bower, C.J.  (10 pages)

            Derek Goble appeals from the district court’s ruling denying his application to modify the physical care provisions of his decree dissolving his marriage to Danielle Goble, now known as Danielle Fenton.  OPINION HOLDS: On our de novo review, we conclude Derek has established a substantial change of circumstances which warrant the modification of the physical care provisions of the decree dissolving his marriage to Danielle.  We therefore reverse and remand for entry of a modified decree.

Case No. 19-0365:  In re the Marriage of Ruba

Filed Nov 27, 2019

View Opinion No. 19-0365

            Appeal from the Iowa District Court for Johnson County, Andrew B. Chappell, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (11 pages)

            Bart Ruba appeals the district court’s ruling dissolving his marriage with Andrea Ruba.  Bart disputes the physical care of his son and daughter granted to Andrea.  Bart also contests the income the district court imputed to calculate his monthly child support.  Finally, Bart disputes an equalization payment of $60,000 to Andrea.  OPINION HOLDS: Because the approximation of care before the divorce favors placing physical care with Andrea, we affirm the custody provisions of the decree.  Next, we affirm the district court’s child support calculation because the district court’s imputation of income to each parent was reasonable given the evidence presented.  Finally, because we cannot trace the equity in Bart’s pre-marital house to his sole efforts we affirm the district court’s calculation of the equalization payment.

Case No. 19-0447:  James Earl Shepard v. State of Iowa

Filed Nov 27, 2019

View Opinion No. 19-0447

            Appeal from the Iowa District Court for Clinton County, Mark D. Cleve, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (5 pages)

            James Shepard appeals following the denial of his second application for postconviction relief.  Shepard argues the postconviction court erred in finding he was not prejudiced by trial counsel’s and first postconviction counsel’s ineffective assistance.  He also argues his second postconviction counsel was ineffective in not raising an equal protection challenge.  OPINION HOLDS: We agree with the district court that Shepard has not proved the requisite prejudice.  Because the ineffective assistance of second postconviction counsel was not raised below, we do not address it here. We affirm.

Case No. 19-0471:  In re the Marriage of Semerad

Filed Nov 27, 2019

View Opinion No. 19-0471

            Appeal from the Iowa District Court for Dallas County, Randy V. Hefner, Judge.  AFFIRMED IN PART, MODIFIED IN PART, AND REMANDED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (12 pages)

            Cassie Semarad, now Cassie Jordan, appeals from the order modifying the decree dissolving her marriage to Austin Semerad.  Cassie argues the court’s ruling, which modified not only the visitation provisions of the decree but also the child-support and legal-custody provisions, went beyond the relief requested by either party.  She also challenges the visitation graduated timeline and the amount of child support ordered.  OPINION HOLDS: We strike the provision concerning legal custody, affirm the court’s graduated visitation ruling, and remand for necessary child support findings.

Case No. 19-0546:  Kai Andreas Skye, a/k/a Brian E. Andreas v. Mathew Trust, C. Jay Hamilton, as Trustee, David Quinn Andreas, Matthew Shea Andreas, and Ellen Rockne

Filed Nov 27, 2019

View Opinion No. 19-0546

            Appeal from the Iowa District Court for Winneshiek County, John J. Bauercamper, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (7 pages)

            Plaintiff appeals from the district court order that entered judgment for attorney fees against him in favor of his the defendants, who are his sons, in the amount of $32,000, plus interest.  OPINION HOLDS: Finding no abuse of discretion, we affirm the trial court.

Case No. 19-0589:  Marvin Mitchell v. Tammy Christensen

Filed Nov 27, 2019

View Opinion No. 19-0589

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  May, J., takes no part.  Opinion by Doyle, J.  (6 pages)

            Marvin Mitchell appeals the denial of his motion to vacate the order granting summary judgment for the defendants.  OPINION HOLDS: Because Mitchell presented no newly discovered evidence, the district court properly exercised its discretion in denying Mitchell’s motion to vacate the summary judgment ruling. 

Case No. 19-0590:  In re the Marriage of Kirsch

Filed Nov 27, 2019

View Opinion No. 19-0590

            Appeal from the Iowa District Court for Linn County, Mitchell E. Turner, Judge.  AFFIRMED AS MODIFIED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (7 pages)

            Heidi Kirsch challenges provisions of a dissolution decree awarding spousal support to William and the set-aside as an inheritance of an investment account.  OPINION HOLDS: We modify the inheritance set-aside and affirm the spousal support award.

Case No. 19-0636:  In the Interest of S.P., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-0636

            Appeal from the Iowa District Court for Dubuque County, Thomas J. Straka, Associate Juvenile Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Greer, JJ.  Opinion by Potterfield, J.  Dissent by Greer, J.  (13 pages)

            The mother of twelve-year-old S.P. appeals from the termination of her parental rights in a private action brought by the father.  The mother challenges the district court’s determinations she abandoned S.P., pursuant to Iowa Code section 600A.8(3)(b) (2018), and that termination of her parental rights is in S.P.’s best interests.  OPINION HOLDS: Because termination of the mother’s parental rights is not in S.P.’s best interests, we reverse the district court decision terminating the mother’s parental rights and remand for dismissal of the father’s petition.  DISSENT ASSERTS: I would affirm the district court ruling that terminated the mother’s parental rights.  The record here contains no explanation for the mother’s disappearance from S.P.’s life for over ten months.  To extend that history is not in the best interests of this child.

Case No. 19-1097:  In the Interest of S.G. and L.B.-A., Minor Children

Filed Nov 27, 2019

View Opinion No. 19-1097

            Appeal from the Iowa District Court for Polk County, Romonda D. Belcher, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Carr, S.J.  Opinion by Carr, S.J.  (6 pages)

            A mother appeals a permanency review order entered in the child-in-need-of-assistance proceeding.  OPINION HOLDS: Clear and convincing evidence supports a finding that the Iowa Department of Human Services made reasonable efforts to return the children to the mother’s care.  We cannot find the need for removal will disappear if we delay permanency for six more months, and we therefore decline to continue placement.  We affirm the permanency review order transferring sole custody of S.G. to her father and guardianship and custody of L.B.-A. to his foster parents.  

Case No. 19-1126:  In the Interest of C.S. and A.S., Minor Children

Filed Nov 27, 2019

View Opinion No. 19-1126

            Appeal from the Iowa District Court for Guthrie County, Virginia Cobb, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (9 pages)

            A mother appeals the juvenile court’s termination of her parental rights.  OPINION HOLDS: We conclude termination was appropriate under Iowa law and consistent with the children’s best interests.

Case No. 19-1128:  In the Interest of D.F., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1128

            Appeal from the Iowa District Court for Page County, Amy Zacharias, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (8 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: Upon our de novo review of the record, we find the State proved the child could not be safely returned to the mother’s care at the time of the termination-of-parental-rights hearing given her relapses and dishonesty about her alcohol use.  We agree with the juvenile court that termination of the mother’s parental rights was in the child’s best interests and the bond between the parent and child did not outweigh the child’s need for permanency, given the time the mother had been provided and her long history of alcohol use.  For those reasons, we agree with the juvenile court that no additional time was warranted.  So we affirm the juvenile court’s ruling in all respects.

Case No. 19-1169:  In the Interest of P.R., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1169

            Appeal from the Iowa District Court for Wapello County, William Owens, Associate Juvenile Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Doyle, P.J., May, J., and Vogel, S.J.  Opinion by Vogel, S.J.  (5 pages)

            The mother and father of P.R. separately appeal the termination of their parental rights.  OPINION HOLDS: Because we agree with the district court that neither parent has the ability to care safely for the child and termination is in the child’s best interests, we affirm.

Case No. 19-1210:  In the Interest of R.E., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1210

            Appeal from the Iowa District Court for Pottawattamie County, Charles D. Fagan, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (9 pages)

            A mother appeals the termination of her parental rights to one child arguing the State failed to prove the statutory grounds for termination, termination is not in the child’s best interests, and the Department of Human Services (DHS) failed to provide reasonable efforts toward reunification.  OPINION HOLDS: We conclude the State proved statutory grounds for termination under Iowa Code section 232.116(1)(h) (2019) with regard to the mother, termination was in the child’s best interests, and DHS provided reasonable efforts toward reunification.  We affirm.

Case No. 19-1292:  In the Interest of T.N., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1292

            Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor, District Associate Judge.  AFFIRMED.  Considered by Mullins, P.J., Greer, J., and Carr, S.J.  Tabor, J., takes no part.  Opinion by Carr, S.J.  (6 pages)

            A mother appeals the juvenile court order terminating her parental rights.  OPINION HOLDS: We find there is sufficient evidence in the record to support termination of the mother’s parental rights and none of the statutory provisions to avoid termination applies.  Termination of the mother’s rights is in the child’s best interests.  We affirm the juvenile court.

Case No. 19-1296:  In the Interest of J.W. and J.W., Minor Children

Filed Nov 27, 2019

View Opinion No. 19-1296

            Appeal from the Iowa District Court for Polk County, Lynn Poschner and Kimberly Ayotte, District Associate Judges.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (8 pages)

            A father appeals the child-in-need-of-assistance adjudication concerning his children.  OPINION HOLDS:  The father did not preserve error on his claim a forensic interview was improperly admitted into evidence.  We affirm the juvenile court decisions adjudicating the children to be in need of assistance and denying the father’s request to cancel a protective order.

Case No. 19-1303:  In the Interest of W.L., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1303

            Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (7 pages)

            A mother appeals the modification of the permanency goal in child-in-need-of-assistance proceedings.  OPINION HOLDS: The juvenile court did not specifically rule on the mother’s request for additional time for the permanency hearing, but the court extended the time originally scheduled for the hearing and we conclude the court’s decision to proceed with the hearing did not result in injustice to the mother.  We conclude the modification of the permanency goal to remain in the father’s care rather than reunification with the mother is in the child’s best interests.  We affirm the decision of the juvenile court.

Case No. 19-1307:  In the Interest of G.G., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1307

            Appeal from the Iowa District Court for Osceola County, David C. Larson, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            A mother and father appeal the termination of their parental rights to their child, arguing the grounds for termination cited by the juvenile court were not supported by clear and convincing evidence, termination was not in the child’s best interests, and that an exception to termination should have been invoked that would have placed the child with his aunt.  OPINION HOLDS: We affirm the termination of parental rights to the child.

Case No. 19-1361:  In the Interest of A.C., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1361

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

            Macey, mother of one-year-old A.C., appeals the termination of her parental rights.  Macey argues it is not in A.C.’s best interests, that breaking their bond is detrimental, that the State failed to make reasonable efforts to reunite mother and daughter, and she should be given an additional six months to work toward assuming custody.  OPINION HOLDS: On our review of the record, we affirm termination of Macey’s rights.  The best interests, including consideration of the parent-child bond, requires termination.  The State made reasonable efforts toward reuniting the pair.  And an additional six months of time will not be enough to resolve Macey’s ongoing issues with drugs and instability.

Case No. 19-1375:  In the Interest of P.M. and A.V., Minor Children

Filed Nov 27, 2019

View Opinion No. 19-1375

            Appeal from the Iowa District Court for Story County, Stephen A. Owen, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J.  (5 pages)

            A mother appeals the termination of her parental rights to her children, arguing termination is contrary to the children’s best interests, termination should have been averted by way of the permissive exception to termination contained in Iowa Code section 232.116(3)(c) (2019), and she should have been allowed an additional six months to work toward reunification.  OPINION HOLDS: We affirm the termination of the mother’s parental rights to her children.

Case No. 19-1410:  In the Interest of R.Q., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1410

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

            A father appeals the juvenile court order terminating his parental rights.  OPINION HOLDS: We find the court properly determined in the permanency order the child should remain in foster care with his half-sibling rather than moving to the home of the father’s cousin.  We find termination of the father’s parental rights is in the child’s best interests and none of the exceptions to termination should be applied.  We affirm the decision of the juvenile court.

Case No. 19-1422:  In the Interest of A.H., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1422

            Appeal from the Iowa District Court for Scott County, Christine Dalton, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (4 pages)

            A mother appeals the juvenile court’s termination of her parental rights.  OPINION HOLDS: We conclude termination was appropriate under Iowa law and consistent with the child’s best interest.

Case No. 19-1455:  In the Interest of J.R., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1455

            Appeal from the Iowa District Court for Pottawattamie County, Scott Strait, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Doyle, J., and Vogel, S.J.  Opinion by Vogel, S.J.  (5 pages)

            The mother appeals the termination of her parental rights to J.R.  OPINION HOLDS: Because the mother has not overcome her years of substance abuse such that she can safely care for J.R., we affirm.

Case No. 19-1460:  In the Interest of K.W., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1460

            Appeal from the Iowa District Court for Iowa County, Jason A. Burns, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., Vaitheswaran, J., and Scott, S.J.  Opinion by Scott, S.J.  (4 pages)

            A mother appeals the termination of her parental rights to her child, born in 2015.  OPINION HOLDS: We affirm the termination of the mother’s parental rights. 

Case No. 19-1553:  In the Interest of M.L., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1553

            Appeal from the Iowa District Court for Scott County, Christine Dalton, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (6 pages)

            A father seeks reversal of the juvenile court’s order terminating his parental relationship with his seven-year-old son.  While the father recognizes he cannot care for the child at the present time, he argues termination is not in his best interests and the court should exercise its discretion not to terminate based on the strong bond and the child’s relative placement.  OPINION HOLDS:  After considering the upheaval in the child’s home life and the toll it has taken on him, we decline to reverse the termination order.  Prolonging uncertainty about the child’s life will likely worsen his mental-health condition, and neither of the permissive factors weigh against termination in this case.  We affirm the termination order. 

Case No. 19-1562:  In the Interest of A.M., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1562

            Appeal from the Iowa District Court for Dickinson County, David C. Larson, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., May, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (6 pages)

            A father appeals adjudicatory and dispositional orders in a child-in-need-of-assistance action, contending (A) “[t]he first removal was premised solely on circumstances regarding the mother” and (B) his “constitutional right to care for his child should not have been infringed based upon his failure to submit to a worker’s request for drug testing.”  OPINION HOLDS: Upon our review, we affirm the juvenile court’s orders.   

Case No. 19-1564:  In the Interest of J.K., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1564

            Appeal from the Iowa District Court for Story County, Stephen A. Owen, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (11 pages)

            A mother and a father separately appeal the termination of their parental rights.  OPINION HOLDS: We affirm on both appeals.

Case No. 19-1575:  In the Interest of A.H., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1575

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            A mother and father separately appeal the termination of their parental rights to a child.  The mother contends the State failed to prove the grounds for termination cited by the district court, termination was not in the child’s best interests, and she should have been afforded additional time to work toward reunification with the child.  The father contends the department failed to make reasonable efforts to reunify him with his child and the district court should have afforded him additional time to work toward reunification.  OPINION HOLDS: We affirm the termination of parental rights to the child.

Case No. 19-1630:  In the Interest of V.K., C.K., and I.K., Minor Children

Filed Nov 27, 2019

View Opinion No. 19-1630

            Appeal from the Iowa District Court for Madison County, Brendan Greiner, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J.  (7 pages)

            A mother appeals the termination of her parental rights to her three children, arguing termination is contrary to the children’s best interests and the court should have established a guardianship in the children’s maternal grandparents rather than terminate her parental rights.  OPINION HOLDS: We conclude termination of the mother’s parental rights is in the children’s best interests and the establishment of a guardianship in lieu of termination is inappropriate under the circumstances of this case.  We affirm the termination of the mother’s parental rights.  

Case No. 19-1671:  In the Interest of L.B., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1671

            Appeal from the Iowa District Court for Pottawattamie County, Eric J. Nelson, District Associate Judge.  AFFIRMED IN PART AND REVERSED IN PART.  Considered by Mullins, P.J., May, J., and Blane, S.J.  Opinion by Blane, S.J.  (5 pages)

            A father appeals the juvenile court order adjudicating his daughter a child in need of assistance.  OPINION HOLDS: Finding the adjudication is supported under paragraph (c)(2) of Iowa Code section 232.2(6) (2019), we affirm on that ground but reverse adjudication under paragraph (n).

Case No. 17-2091:  Addison Insurance Company v. MEP Co.

Filed Nov 06, 2019

View Opinion No. 17-2091

            Appeal from the Iowa District Court for Lee (North) County, John G. Linn, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Doyle, J., and Vogel, S.J.  Opinion by Vaitheswaran, P.J.  (6 pages)

            MEP Co. appeals the district court’s declaratory judgment in favor of Addison Insurance Company.  OPINION HOLDS: The district court’s findings are supported by substantial evidence, and we discern no error in the court’s conclusion.  We affirm.

Case No. 18-0033:  State of Iowa v. Elisa Marie Walker a/k/a Montgomery

Filed Nov 06, 2019

View Opinion No. 18-0033

            Appeal from the Iowa District Court for Black Hawk County, Brook Jacobsen, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (3 pages)

            Elisa Walker appeals after entering written pleas to fourth-degree theft and fourth-degree fraudulent practices, claiming she failed to understand fully the plea and its consequences.  OPINION HOLDS: Walker failed to preserve her challenge to the plea based on her alleged lack of understanding for our review.  So we affirm.

Case No. 18-0081:  State of Iowa v. Kamie Jo Schiebout

Filed Nov 06, 2019

View Opinion No. 18-0081

            Appeal from the Iowa District Court for Sioux County, Patrick H. Tott and Jeffrey A. Neary, Judges.  CONVICTION AFFIRMED, SENTENCE VACATED IN PART, AND REMANDED WITH INSTRUCTIONS.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Tabor, J. (16 pages)

            The defendant appeals her conviction and sentence for theft by check in the second degree contending the State failed to prove (1) that she knew the checks would not be paid and (2) that she received property, services, or money from the transactions.  She also alleges the court improperly instructed the jury on aggregation.  Lastly, she challenges the district court’s ruling that a sheriff’s reimbursement claim for $28,136 in medical aid under Iowa Code section 356.7 (2018) be listed as a civil judgment against her, when she was not represented by counsel at the hearing on the claim.  OPINION HOLDS: Sufficient evidence supports her conviction, and we affirm the verdict.  But on the medical aid, we remand for a hearing on the sheriff’s claim where the defendant is afforded the right to the assistance of counsel.

Case No. 18-0208:  State of Iowa v. Tait Otis Purk

Filed Nov 06, 2019

View Opinion No. 18-0208

            Appeal from the Iowa District Court for Tama County, Ian K. Thornhill, Judge.  AFFIRMED.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by May, J. (18 pages)

            Tait Purk appeals his conviction and sentence for second-degree murder following a bench trial.  He raises numerous claims, including many ineffective-assistance claims.  OPINION HOLDS: We affirm his conviction and sentence.  And we preserve all but one of his ineffective-assistance claims for future postconviction proceedings.

Case No. 18-0421:  State of Iowa v. Kenneth Curtis Shaw

Filed Nov 06, 2019

View Opinion No. 18-0421

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED ON CONDITION AND REMANDED WITH DIRECTIONS.  Considered by Potterfield, P.J., and Tabor and Greer, JJ.  Opinion by Potterfield, P.J. (9 pages)

            Kenneth Shaw appeals his conviction and sentence for first-degree robbery in violation of Iowa Code sections 711.1 and 711.2 (2017).  Shaw was sentenced to a twenty-five year prison sentence, with 70% mandatory incarceration.  On appeal, Shaw argues: (1) the State did not provide sufficient evidence to show Shaw committed the robbery; and (2) the jury pool was not a fair cross-section of the community in violation of his rights under the Sixth Amendment to the United States Constitution and Article I, section 10 of the Iowa State Constitution.  OPINION HOLDS: Sufficient evidence supports the jury’s determination that Shaw committed the robbery.  The district court correctly determined Shaw failed to meet his burden to establish a prima facie case of fair cross-section violation.  But because the parties did not have the benefit of recent refinements to Iowa law, we remand the matter to the district court to give Shaw an opportunity to develop his arguments that his constitutional right to an impartial jury was violated; if the court finds a violation occurred, it shall grant Shaw a new trial.

Case No. 18-0603:  In re the Marriage of Rath

Filed Nov 06, 2019

View Opinion No. 18-0603

            Appeal from the Iowa District Court for Benton County, Patrick R. Grady, Judge.  DIRECT APPEAL AFFIRMED; WRIT ANNULLED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (3 pages)

            Keith Rath appeals from the district court’s refusal to hold his former wife, Melinda Gordon, in contempt for failure to comply with property provisions of their divorce decree.  Although it refused to find Melinda in contempt, the court did find Keith in contempt for his own failure to comply with the decree.  Keith filed an appeal to the joint order.  OPINION HOLDS: Although an appeal lies from the refusal of the court to find Melinda in contempt, the proper mode of review for the finding Keith was in contempt was petition for writ of certiorari.  We treat the appeal as though Keith requested the proper form of review.  And, after a careful review of the record, briefs, and applicable law, we affirm the district court’s ruling without opinion under Iowa R. App. P. 6.1203(a) and (d).  We affirm.   

Case No. 18-0757:  State of Iowa v. Berlou Joe Barnard

Filed Nov 06, 2019

View Opinion No. 18-0757

            Appeal from the Iowa District Court for Jasper County, Terry R. Rickers, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Potterfield, J.  (14 pages)

            Defendant Berlou Barnard appeals his conviction of four separate counts of sexual abuse in the second degree and one count of obstruction of justice based on error in two evidentiary rulings.  Barnard argues (1) his Sixth Amendment rights were violated when a videotaped interview with the child complaining witness was admitted over his objection; (2) the district court erred by admitting the interview over his hearsay objection; and (3) the district court erred by granting the State’s motion in limine to prevent him from introducing evidence that the child complaining witness had made false allegations of sexual abuse against another family member before. OPINION HOLDS: The district court did not err by admitting the videotaped interview or by granting the State’s motion in limine.  We affirm. 

Case No. 18-0862:  State of Iowa v. Michael David Dawson

Filed Nov 06, 2019

View Opinion No. 18-0862

            Appeal from the Iowa District Court for Black Hawk County, Linda M. Fangman and Bradley J. Harris, Judges.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (9 pages)

            Michael Dawson appeals his convictions for various drug crimes, eluding, and driving while barred.  OPINION HOLDS: The district court did not abuse its discretion in not ruling on pro se motions that did not articulate claims with any clarity.  Sufficient evidence supports Dawson’s possession conviction.  We preserve Dawson’s ineffective-assistance claims for possible future postconviction-relief proceedings.

Case No. 18-0892:  Alonzo Stokes v. State of Iowa

Filed Nov 06, 2019

View Opinion No. 18-0892

            Appeal from the Iowa District Court for Linn County, Patrick R. Grady, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (3 pages)

            Alonzo Stokes appeals the district court order denying his application for postconviction relief from his first-degree-robbery conviction.  OPINION HOLDS: Because the jury’s verdict finding Stokes guilty of first-degree robbery while acquitting him of first-degree burglary was not inconsistent, Stokes has failed to show his trial counsel was ineffective by failing to object on this basis. 

Case No. 18-0918:  Napa Valley Owners Association v. John Barton Goplerud and Leslie Clemenson

Filed Nov 06, 2019

View Opinion No. 18-0918

            Appeal from the Iowa District Court for Dallas County, Dustria A. Relph, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J.  (16 pages)

            John Barton Goplerud and Leslie Clemenson (“Gopleruds”) appeal district court orders enjoining Lyle and Dorothy Hale from using an outbuilding on the Gopleruds’ property as a residential dwelling; ordering removal of structures and restoration of the lot to pre-construction condition; and awarding attorney fees and costs to the Napa Valley Owner’s Association (“Association”).  The Gopleruds argue the district court erred in: (1) concluding they violated restrictive covenants because the Association (a)  lacked authority to enforce the covenants and (b) unreasonably enforced the covenants, (2) ordering injunctive relief, and (3) awarding attorney fees to the Association.  OPINION HOLDS: Because the Association ratified the actions of the Board and Architectural Control Committee (ACC), and that ratification was retroactive, the Board was entitled to enforce the restrictive covenants.  Our de novo review of the record reveals the Board and ACC’s findings regarding the covenant violations are not unreasonable, arbitrary, or capricious.  The contractual nature of the covenants also justify the imposition of injunctive relief mandating removal of offending structures and barring prohibited use.  Finally, we find there was no abuse of discretion in awarding attorney fees and costs to the Association.

Case No. 18-1027:  In re the Marriage of Pontier

Filed Nov 06, 2019

View Opinion No. 18-1027

            Appeal from the Iowa District Court for Warren County, Richard B. Clogg, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J.  (8 pages)

            Matthew Pontier appeals several provisions of the decree dissolving his marriage to Jessica Pontier: (1) the spousal support provision; (2) the parenting schedule associated with the court’s award of joint physical care of their three children; (3) a child support award of $350 per month; and (4) a provision requiring him to pay Jessica’s portion of a custody-evaluation fee.  OPINION HOLDS: We affirm on all issues, but we modify that portion of the dissolution decree ordering child support of $350 and remand for recalculation of child support with the spousal support added and deducted as prescribed by Iowa Court Rule 9.5(1)(a)(1).  On remand, the court should also determine the appropriate amount of appellate attorney fees.

Case No. 18-1220:  State of Iowa v. Jehu Purnell

Filed Nov 06, 2019

View Opinion No. 18-1220

            Appeal from the Iowa District Court for Des Moines County, Michael J. Schilling, Judge.  AFFIRMED.  Considered by Bower, C.J., and Potterfield and Greer, JJ.  Opinion by Greer, J. (7 pages)

           

            Jehu Purnell challenges his conviction of one count of willful injury causing serious injury, arguing there is insufficient evidence to prove identity and specific intent.  OPINION HOLDS: There was sufficient evidence to convince a rational jury beyond a reasonable doubt that Purnell committed the offense and that he had the specific intent to cause serious injury.  We affirm.

Case No. 18-1433:  In the Interest of K.C., Minor Child

Filed Nov 06, 2019

View Opinion No. 18-1433

            Appeal from the Iowa District Court for Polk County, Dustria A. Relph, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Mullins and Greer, JJ.  Opinion by Potterfield, P.J.  (7 pages)

            A father appeals from the private termination of his parental rights, contending the evidence of abandonment is insufficient.  He also maintains his retained counsel provided ineffective assistance.  OPINION HOLDS: Despite his subjective interest in the child, there is clear and convincing evidence the father did not attempt to maintain any contact with the child from 2010 to 2017.  The father has failed to prove counsel was ineffective.  We therefore affirm the termination of the father’s rights.

Case No. 18-1436:  State of Iowa v. Daniel Joseph Buenneke

Filed Nov 06, 2019

View Opinion No. 18-1436

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  ROBBERY AND THEFT CONVICTIONS and sentences VACATED AND REMANDED FOR FURTHER PROCEEDINGS.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Doyle, J. (6 pages)

            Daniel Buenneke challenges the factual basis for his pleas to second-degree robbery and first-degree theft, which he entered as part of a plea agreement involving multiple charges.  OPINION HOLDS: Because there is an insufficient factual basis for Buenneke’s robbery and theft pleas, we vacate the district court’s judgment of conviction and sentence on both the robbery and theft charges.  We remand to allow the State an opportunity to establish a factual basis for the guilty plea. 

Case No. 18-1438:  State of Iowa v. Nicholas Andrews

Filed Nov 06, 2019

View Opinion No. 18-1438

            Appeal from the Iowa District Court for Webster County, Bethany J. Currie and Kurt L. Wilke, Judges.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (6 pages)

            Nicholas Andrews claims the State breached its plea agreement with him and his attorney was ineffective in not objecting.  OPINION HOLDS: The record is not developed enough for us to decide whether Andrews received ineffective-assistance-of-counsel.  So we affirm his conviction and preserve the ineffective-assistance-of-counsel claim for possible postconviction-relief proceedings. 

Case No. 18-1473:  Richard J. Holman and Becky S. Holman, individually, as father and mother and next friend of C.L.H., a minor v. DAC, Inc.

Filed Nov 06, 2019

View Opinion No. 18-1473

            Appeal from the Iowa District Court for Dubuque County, Michael J. Shubatt, Judge.  AFFIRMED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (11 pages)

            The plaintiffs appeal the order granting summary judgment on their negligence claims in favor of the defendant, a group home for persons with intellectual disabilities.  They contend the defendant owed a legal duty to protect third parties from harm posed by a resident who tried to sexually assault a minor.  OPINION HOLDS: Because the relationship between the parties and public policy considerations weigh against finding the defendant had a legal duty to protect third parties from harm posed by one of its residents, we affirm the order granting summary judgment.

Case No. 18-1643:  State of Iowa v. Rudy Danilo Depaz Colocho

Filed Nov 06, 2019

View Opinion No. 18-1643

            Appeal from the Iowa District Court for Polk County, Gregory D. Brandt, District Associate Judge.  AFFIRMED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (9 pages)

            Rudy Colocho was convicted for third-offense operating a vehicle while intoxicated.  During a traffic stop, a police officer accommodated Colocho’s request to urinate before he performed field sobriety tests.  The officer took Colocho to the police station, but after he used the restroom, he still refused sobriety testing.  Instead, Colocho started speaking Spanish and requested an attorney.  The officer rejected the request.  After an interpreter was brought in Colocho still refused sobriety testing.  The officer then arrested Colocho and advised him his Iowa Code section 804.20 (2018) rights.  The officer estimated Colocho had just a little under an hour to make a phone call before the officer invoked implied consent.  Colocho refused to take the DataMaster test.  Colocho now appeals. OPINION HOLDS: We agree with the district court’s additional finding that the officer remedied the situation by later advising Colocho of his rights.  Also, because no excludable evidence emerged between the alleged violation and the officer’s giving of the advisory, we need not apply a fruits analysis.  Also, because Colocho refused the DataMaster test nearly an hour after receiving the advisory, the test refusal was admissible evidence in his stipulated bench trial.  Also, because the stipulated record contained strong evidence Colocho was operating while under the influence, we find any violation of Colocho’s rights under section 804.20 was harmless error.  Colocho is not entitled to new trial.

Case No. 18-1704:  Odell Everett Jr. v. State of Iowa

Filed Nov 06, 2019

View Opinion No. 18-1704

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and May and Greer, JJ.  Opinion by Potterfield, P.J.  (3 pages)

            Odell Everett Jr. appeals from the summary dismissal of his third application for postconviction relief in which he challenges his 2005 conviction for first-degree robbery.  OPINION HOLDS: We agree with the district court’s conclusions that Everett’s reliance on Schmidt v. State, 909 N.W.2d 778 (Iowa 2018), was “misplaced because there is no allegation of newly discovered evidence upon which any claim of actual innocence could be made,” and that Everett’s “claims have been fully adjudicated and are time barred.”  We find no error and therefore affirm.

Case No. 18-1727:  State of Iowa v. Jaevon Tramere Holmes

Filed Nov 06, 2019

View Opinion No. 18-1727

            Appeal from the Iowa District Court for Black Hawk County, Linda M. Fangman, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (7 pages)

            Jaevon Holmes appeals his conviction for escape under Iowa Code section 719.4(1) (2017).  He contends the evidence at his bench trial supported only the lesser offense of absence from custody under Iowa Code section 719.4(3).  OPINION HOLDS: Because ample evidence backs the district court’s determination Holmes intentionally and without permission left the work-release facility where he was held after violating parole on his felony convictions, we affirm.

Case No. 18-1763:  State of Iowa v. Eddie Donovan Delong

Filed Nov 06, 2019

View Opinion No. 18-1763

            Appeal from the Iowa District Court for Cherokee County, David A. Lester, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J. (5 pages)

            Eddie DeLong appeals his restitution order, claiming there is not an adequate causal connection between the ordered restitution and his crimes.  OPINION HOLDS: We find substantial evidence supports the district court’s findings and affirm.

Case No. 18-1810:  Milligan v. Ottumwa Civil Service Commission

Filed Nov 06, 2019

View Opinion No. 18-1810

            Appeal from the Iowa District Court for Wapello County, Shawn R. Showers, Judge.  REVERSED.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (17 pages)

            Appellants Ottumwa Civil Service Commission, City of Ottumwa, and Ottumwa Police Department appeal from the district court ruling that reversed the suspension and termination of Sergeant Mark Milligan and awarded him back pay.  The appellants argue Sergeant Milligan’s suspension and termination were appropriate and the court erred by refusing to reduce his damages by income he received from other sources.  OPINION HOLDS: We find Sergeant Milligan violated department rules and uphold the suspension and termination.  Given this determination, the damage question is moot. 

Case No. 18-1817:  Oliver Fenceroy v. Gelita USA, Inc., Bob Kersbergen, Tom Haire, Jeff Tolsma, and Jeremy Kneip

Filed Nov 06, 2019

View Opinion No. 18-1817

            Appeal from the Iowa District Court for Woodbury County, Jeffrey A. Neary, Judge.  AFFIRMED.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (10 pages)

            Oliver Fenceroy appeals the district court’s granting of summary judgment in favor of defendants Gelita USA, Inc., Tom Haire, and Jeff Tolsma to dismiss his claims of racial harassment, racial discrimination, and intentional infliction of emotional distress.  OPINION HOLDS: We find Fenceroy did not show Gelita had the requisite knowledge to support the harassment claims, did not establish an adverse employment action for his discrimination claim, and the evidence did not support a finding of severe emotional distress.  We affirm.

Case No. 18-1824:  Benjamin E. Schreiber v. State of Iowa

Filed Nov 06, 2019

View Opinion No. 18-1824

            Appeal from the Iowa District Court for Wapello County, Crystal S. Cronk, Judge.  AFFIRMED.  Considered by Bower, C.J., and Potterfield and Greer, JJ.  Opinion by Potterfield, J.  (8 pages)

            Benjamin Schreiber seeks to resurrect his third postconviction-relief application (PCR) after the district court granted the State’s motion to dismiss.  Schreiber was convicted of murder in the first degree in violation of Iowa Code sections 707.1 and 707.2 (1996).  On appeal, he alleges the district court made several errors in the course of handling his PCR application, including (1) denying him a meaningful opportunity to respond by failing to provide him adequate notice of the hearing on the State’s motion to dismiss, failing to record the proceedings, and dismissing his application without an evidentiary hearing; (2) requiring him to pay 20% of the filing fee for the PCR application; and (3) denying his application for court-appointed counsel.  OPINION HOLDS: Schreiber was given an opportunity to be heard, and the district court did not err by not recording the proceedings and granting the State’s motion to dismiss his application.  The district court did not err by requiring him to pay 20% of the filing fee or by denying his application for court appointed counsel.  We affirm.

Case No. 18-1869:  Stephen Andrea Marks v. State of Iowa

Filed Nov 06, 2019

View Opinion No. 18-1869

            Appeal from the Iowa District Court for Scott County, Tom Reidel, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (4 pages)

            Stephen Marks was convicted of second-degree robbery and sentenced under Iowa Code section 902.12(5) (2013), which required a seventy percent mandatory minimum.  In 2016, the statute was amended to allow a range of fifty to seventy percent mandatory minimum for second-degree robbery sentences.  See Iowa Code § 902.12(3) (2016).  Marks filed a postconviction-relief application arguing the amended statute should apply retroactively.  OPINION HOLDS: By its plain words, the 2016 amendment only applies prospectively.  Moreover, we are not persuaded by Marks’s due process, equal protection, and cruel-and-unusual-punishment claims.  Therefore, we affirm the denial of Marks’s postconviction-relief application.

Case No. 18-1910:  In re the Marriage of Mann

Filed Nov 06, 2019

View Opinion No. 18-1910

            Appeal from the Iowa District Court for Dickinson County, Carl J. Petersen, Judge.  AFFIRMED AS MODIFIED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Vaitheswaran, P.J. Concurrence in part and dissent in part by May, J.  (18 pages)

            Steven Mann appeals several provisions of the decree dissolving his marriage to Andrea Mann.  OPINION HOLDS: We conclude Steven should receive $2395 in spousal support per month for a period of three years, and we modify the decree in that regard.  We affirm the district court’s property distribution.  We decline Andrea’s request for appellate attorney fees.  PARTIAL DISSENT ASSERTS: I do not conclude the district court's denial of spousal support constituted a failure to do equity.  So I would not modify the decree.  As to all other issues.  I concur with the majority.

Case No. 18-1938:  In re the Marriage of Garrels

Filed Nov 06, 2019

View Opinion No. 18-1938

            Appeal from the Iowa District Court for Clinton County, Stuart P. Werling, Judge.  AFFIRMED AS MODIFIED.  Considered by Potterfield, P.J., and Doyle and Schumacher, JJ.  Opinion by Schumacher, J.  (4 pages)

            A mother appeals the district court’s calculation of the parties’ obligation for their child’s postsecondary education expenses.  OPINION HOLDS: We affirm the district court’s decision requiring the parents to contribute to the child’s postsecondary education expenses but modify to increase each parent’s obligation to $9352.

Case No. 18-2008:  George J. Saluri and Candace C. Saluri v. Jay R. Buckley and Cathy Buckley

Filed Nov 06, 2019

View Opinion No. 18-2008

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Doyle, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (7 pages)

            George and Candace Saluri appeal the district court decision granting summary judgment to Jay and Cathy Buckley on the ground the Saluris’ claims of negligence, negligence per se, temporary nuisance, permanent nuisance, and trespass are barred by the statute of limitations.  OPINION HOLDS:  We find the district court properly granted summary judgment to the Buckleys on the ground the Saluris’ claims are barred by the five-year statute of limitations in Iowa Code section 614.1(4) (2017) for injuries to property.  We affirm the district court.

Case No. 18-2015:  Stephen Carl Brodersen, Jr. v. State of Iowa

Filed Nov 06, 2019

View Opinion No. 18-2015

            Appeal from the Iowa District Court for Floyd County, James M. Drew, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (5 pages)

            Stephen Broderson appeals the dismissal of his postconviction-relief application.  OPINION HOLDS: Broderson has not met his burden of proof on any of his ineffective-assistance claims.  Therefore, we affirm.

Case No. 18-2018:  In re the Marriage of Melrose

Filed Nov 06, 2019

View Opinion No. 18-2018

            Appeal from the Iowa District Court for Floyd County, Rustin T. Davenport, Judge.  AFFIRMED AS MODIFIED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (7 pages)

            Carole Browman, formerly known as Carole Melrose, appeals from the spousal support provisions of the decree dissolving her marriage to Mark Melrose.  OPINION HOLDS: Ultimately, we find the court’s determination of Mark’s annual income to be with the range of evidence.  Nevertheless, having considered all of the relevant factors, we conclude upon our de novo review of the record that Carole’s alimony award should be increased to $3000 per month.  We decline each party’s request for appellate attorney fees in this appeal.

Case No. 18-2036:  State of Iowa v. Brett Calvin Hensley

Filed Nov 06, 2019

View Opinion No. 18-2036

            Appeal from the Iowa District Court for Polk County, Heather L. Lauber, Judge.  APPEAL DISMISSED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (3 pages)

            Defendant Brett Hensley appeals the denial of his request for earned time credit pursuant to Iowa Code section 903A.2(3) (2018).  OPINION HOLDS: We dismiss Hensley’s appeal due to mootness.

Case No. 18-2037:  Robert Raw v. Christina Spofford

Filed Nov 06, 2019

View Opinion No. 18-2037

            Appeal from the Iowa District Court for Johnson County, Christopher L. Bruns, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J.  (12 pages)

            Dr. Robert Raw appeals the district court’s grant of summary judgment on statute-of-limitation grounds in favor of Dr. Christina Spofford on his claims of defamation.  Raw generally argues the court erred in concluding he was on inquiry notice of his claims in 2014, thus barring his 2017 petition as outside the two-year statute of limitations contained in Iowa Code section 614.1(2) (2017).  OPINION HOLDS: We affirm the district court’s conclusions that Raw was on notice of his claims against Spofford no later than 2014, the claims had accrued at that time, and Raw’s 2017 petition was therefore barred by the two-year statute of limitations.

Case No. 18-2061:  State of Iowa v. Michael Joseph Debettignies

Filed Nov 06, 2019

View Opinion No. 18-2061

            Appeal from the Iowa District Court for Floyd County, Chris Foy, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J. (4 pages)

            Michael Debettignies appeals his conviction for third-degree sexual abuse.  He contends the district court abused its discretion when it sustained a motion in limine.  OPINION HOLDS:  Debettignies failed to preserve error because (1) he did not offer the evidence during trial and (2) the motion in limine ruling was not unequivocal so as to leave no question as to whether the evidence would be admitted.

Case No. 18-2066:  Maria Del Rosario Romero v. Curly's Food, and Safety National

Filed Nov 06, 2019

View Opinion No. 18-2066

            Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            Maria Del Rosario Romero appeals the district court decision affirming the workers’ compensation commissioner’s denial of benefits, challenging the commissioner’s application of the discovery rule.  OPINION HOLDS: The commissioner’s findings are supported by substantial evidence, and the commissioner’s application of the discovery rule to the facts was not irrational, illogical, or wholly unjustifiable.

Case No. 18-2244:  In re the Marriage of Amit Gupta and Manika Bansal

Filed Nov 06, 2019

View Opinion No. 18-2244

            Appeal from the Iowa District Court for Johnson County, Andrew Chappell, Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Bower, C.J., Mullins, J., and Scott, S.J.  Opinion by Scott, S.J.  (3 pages)

            Former spouses appeal and cross-appeal a decree of dissolution of marriage.  OPINION HOLDS: We affirm the district court’s decree of dissolution of marriage. 

Case No. 19-0108:  Fred Vogt v. City of Carter Lake and Carter Lake City Council

Filed Nov 06, 2019

View Opinion No. 19-0108

            Appeal from the Iowa District Court for Pottawattamie County, Gregory W. Steensland, Judge.  REVERSED AND REMANDED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Bower, C.J.  (6 pages)

            Fred Vogt appeals from a district court order granting the City of Carter Lake and Carter Lake City Council’s motion to dismiss.  Vogt sought declaratory judgment to enjoin amendment to zoning regulations to allow gaming facilities in C-2 General Commercial Districts.  OPINION HOLDS: We find to the extent the zoning district applied to property outside of tribal trust property, the court had jurisdiction over the action and reverse and remand for further proceedings.

Case No. 19-0123:  Douglas D. Hickman and Susan A. Hickman v. Ringgold County, Iowa

Filed Nov 06, 2019

View Opinion No. 19-0123

            Appeal from the Iowa District Court for Ringgold County, John D. Lloyd, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Lloyd, S.J., takes no part.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Douglas and Susan Hickman appeal the district court’s denial of injunctive relief regarding their challenge to Ringgold County’s condemnation of a portion of their land, contending Iowa Code section 6A.22 (2018) “restricts and prohibits the authority of a county to condemn private land to facilitate private use and/or for economic development.”  OPINION HOLDS: Because the County was statutorily authorized to upgrade the road, we affirm the court’s dismissal of the Hickmans’ challenge to the County’s condemnation notice. 

Case No. 19-0131:  Ronald Dean Agee v. State of Iowa

Filed Nov 06, 2019

View Opinion No. 19-0131

            Appeals from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge (19-0345) and the Iowa District Court for Jasper County, Thomas P. Murphy, Judge (19-0131).  AFFIRMED ON BOTH APPEALS. Considered by Potterfield, P.J., and Mullins and Greer, JJ.  Opinion by Greer, J.  (8 pages)

            Ronald Agee appeals the district court’s dismissal of his petition for writ of habeas corpus and denial of his motion to correct an illegal sentence.  Agee argues he can pursue his claims through a petition for habeas corpus and also that he was entitled to an automatic discharge of his lifetime special sentence after ten years with credit for time served in prison.  OPINION HOLDS: Agee committed a public offense; for that reason a writ of habeas corpus is unavailable to him.  Iowa Code section 903B.1 (2007) provides for a lifetime special sentence and the length of the sentence for the criminal offense is irrelevant.  Unless the Iowa Board of Parole decides to discharge his special sentence, Agee is required to comply with its terms for the rest of his life or face revocation of release.  We affirm both district court rulings.

Case No. 19-0277:  State of Iowa v. Gregory John Schuldt

Filed Nov 06, 2019

View Opinion No. 19-0277

            Appeal from the Iowa District Court for Jasper County, Thomas P. Murphy and Randy V. Hefner, Judges.  CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., Greer, J., and Blane, S.J.  Opinion by Blane, S.J. (10 pages)

            Gregory Schuldt appeals the denial of his motion to suppress in which he challenged the district court’s issuance of three separate search warrants sought by Newton police in their investigation of a drive-by shooting.  Schuldt also contests the district court’s imposition of court costs without determining his reasonable ability to pay.  OPINION HOLDS: Based upon our review, the district court had a substantial basis for concluding probable cause existed to issue the warrants.  But the court failed to apply the statutory requirements for restitution.  We affirm the convictions but reverse the sentence in part and remand for entry of a final restitution order.

Case No. 19-0328:  George McClennon v. State of Iowa

Filed Nov 06, 2019

View Opinion No. 19-0328

            Appeal from the Iowa District Court for Woodbury County, Julie Schumacher, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Schumacher, J., takes no part.  Opinion by Mullins, J.  (5 pages)

            George McClennon appeals the summary disposition of his application for postconviction relief claiming he received ineffective assistance of counsel and an illegal sentence.  OPINION HOLDS: We find counsel was not ineffective and McClennon’s sentence is not illegal.  We affirm the summary disposition of his application for postconviction relief.

Case No. 19-0345:  State of Iowa v. Ronald Dean Agee

Filed Nov 06, 2019

View Opinion No. 19-0345

            Appeals from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge (19-0345) and the Iowa District Court for Jasper County, Thomas P. Murphy, Judge (19-0131).  AFFIRMED ON BOTH APPEALS. Considered by Potterfield, P.J., and Mullins and Greer, JJ.  Opinion by Greer, J.  (8 pages)

            Ronald Agee appeals the district court’s dismissal of his petition for writ of habeas corpus and denial of his motion to correct an illegal sentence.  Agee argues he can pursue his claims through a petition for habeas corpus and also that he was entitled to an automatic discharge of his lifetime special sentence after ten years with credit for time served in prison.  OPINION HOLDS: Agee committed a public offense; for that reason a writ of habeas corpus is unavailable to him.  Iowa Code section 903B.1 (2007) provides for a lifetime special sentence and the length of the sentence for the criminal offense is irrelevant.  Unless the Iowa Board of Parole decides to discharge his special sentence, Agee is required to comply with its terms for the rest of his life or face revocation of release.  We affirm both district court rulings.

Case No. 19-0691:  Fama Diakhoumpa v. Ismaila Sarr

Filed Nov 06, 2019

View Opinion No. 19-0691

            Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Bower, C.J.  (6 pages)

            Ismaila Sarr appeals a domestic abuse protective order.  OPINION HOLDS: We find a preponderance of evidence supports the district court’s protective order and affirm.

Case No. 19-0693:  State of Iowa v. Thomas Robert Stogdill

Filed Nov 06, 2019

View Opinion No. 19-0693

            Appeal from the Iowa District Court for Pottawattamie County, Eric J. Nelson, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (3 pages)

            Thomas Stogdill challenges the sufficiency of the evidence supporting his conviction for assault while using or displaying a dangerous weapon.  OPINION HOLDS: Substantial evidence supports the finding that a thrown hammer meets the definition of a dangerous weapon under Iowa Code section 702.7 (2018) as an instrument used in a way that shows a person intends to inflict death or serious injury on another and which can inflict death when so used.

Case No. 19-1054:  In the Interest of A.C., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1054

            Appeal from the Iowa District Court for Polk County, Romonda Belcher, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (4 pages)

            A mother appeals the termination of her parental rights to her child.  OPINION HOLDS: Clear and convincing evidence shows the child could not be returned to the mother’s care at the time of the termination hearing and that termination is in the child’s best interests.  Because none of the circumstances listed in Iowa Code section 232.116(3) (2018) weigh against terminating the mother’s parental rights, we affirm.

Case No. 19-1055:  In the Interest of A.B. and A.B., Minor Children

Filed Nov 06, 2019

View Opinion No. 19-1055

            Appeal from the Iowa District Court for Appanoose County, William Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (11 pages)

            A mother of two children appeals a permanency review order placing legal custody of the children with their father, contending (A) “the [juvenile] court erred in not returning the children to [her] care as there was no physical or adjudicatory harm preventing their return”; (B) “the [juvenile] court erred in [entering] a permanency order when the department [of human services] had not made reasonable efforts towards reunification as it failed to compel the children to individual counseling and family counseling with [her]”; and (C) “the department of human services did not [provide] notice that the hearing could be a permanency decision, as the court had previously ruled that she had an additional six months.”  OPINION HOLDS: We affirm the juvenile court’s permanency review order in its entirety.

Case No. 19-1072:  Little Hands Childcare & Preschool, Inc. v. Employment Appeal Board

Filed Nov 06, 2019

View Opinion No. 19-1072

            Appeal from the Iowa District Court for Dickinson County, Don E. Courtney, Judge.  REVERSED AND REMANDED.  Considered by Bower, C.J., and Mullins and May, JJ.  Opinion by Bower, C.J.  (5 pages)

            The Employment Appeal Board (EAB) determined Amy Harbst Baschke was discharged for no qualifying reason from her employment with Little Hands Childcare & Preschool, Inc.  The district court reversed, and the EAB appeals.  OPINION HOLDS: Because the EAB’s decision was supported by substantial evidence and was not unreasonable or wholly unjustifiable, the district court erred in reversing the EAB’s ruling.  We reverse and remand for dismissal of the employer’s petition.

Case No. 19-1079:  In the Interest of M.E., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1079

            Appeal from the Iowa District Court for Polk County, Romonda Belcher, District Associate Judge.  AFFIRMED.  Considered by Greer, P.J., Schumacher, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (5 pages)

            A mother appeals the juvenile court decision terminating her parental rights.  OPINION HOLDS:  The mother does not challenge the statutory grounds for termination, and we find termination of the mother’s parental rights is in the child’s best interests.  We affirm the decision of the juvenile court.

Case No. 19-1080:  In the Interest of T.M., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1080

            Appeal from the Iowa District Court for Pottawattamie County, Charles D. Fagan, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (7 pages)

            A mother and father separately appeal the juvenile court decision terminating their parental rights.  OPINION HOLDS: We find clear and convincing evidence supporting the termination of the mother’s rights exists under Iowa Code section 232.116(1)(h) (2019), additional time for the father to achieve reunification is unwarranted, and termination of both parents’ rights is in the best interest of the child.

Case No. 19-1115:  In the Interest of P.H., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1115

            Appeal from the Iowa District Court for Chickasaw County, Linnea M.N. Nicol, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (8 pages)

            A mother and father separately appeal the termination of their parental rights to one child.  OPINION HOLDS:  Ongoing substance-abuse and domestic-violence issues, as well as general instability, render the parents unable to resume care of the child.  It is in the child’s best interests to terminate parental rights, and no other statutory factor should prevent that.  The parenting deficiencies would still be present in six months, so additional time is not warranted.  We affirm. 

Case No. 19-1118:  In the Interest of J.R. and D.R., Minor Children

Filed Nov 06, 2019

View Opinion No. 19-1118

            Appeal from the Iowa District Court for Warren County, Brendan Greiner, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (15 pages)

            A mother and father appeal the termination of their parental rights.  OPINION HOLDS: Here, the State proved a ground for termination of the parents’ parental rights.  The record shows termination of parental rights was in the children’s best interest.  There was a material change in circumstances to support modification of the permanency order from placing the children in a guardianship to termination of parental rights with the possibility of adoption by their guardian.  Res judicata and related doctrine does not apply, and the mother’s issue on the entry of a no-contact order is moot.  For all of these reasons, we affirm the juvenile court’s order terminating each parent’s parental rights.

Case No. 19-1144:  In the Interest of Q.R., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1144

            Appeal from the Iowa District Court for Calhoun County, Joseph McCarville, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (7 pages)

            A father appeals the termination of his parental rights to his child, challenging the sufficiency of the evidence supporting the statutory grounds for termination and contending the juvenile court should have applied the statutory exceptions under Iowa Code section 232.116(3)(a) and (c) (2019) to preclude termination.  OPINION HOLDS: We affirm the decision of the juvenile court to terminate the father’s parental rights.

Case No. 19-1183:  In the Interest of R.A., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1183

            Appeal from the Iowa District Court for Johnson County, Jason A. Burns, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., Greer, J., and Blane, S.J.  Opinion by Blane, S.J.  (9 pages)

            The mother and father separately appeal the termination of their parental rights to their child, R.A., contending the juvenile court did not have jurisdiction to enter the child-in-need-of-assistance (CINA) and termination orders.  OPIINION HOLDS: Applying the Uniform Child Custody Jurisdiction Enforcement Act found in Iowa Code chapter 598B (2019), the juvenile court had jurisdiction to enter the CINA and termination orders.  We affirm.

Case No. 19-1225:  In the Interest of A.M., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1225

            Appeal from the Iowa District Court for Dickinson County, David C. Larson, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (7 pages)

            A father appeals the juvenile court order terminating his parental rights.  OPINION HOLDS: We conclude the father waived his claim the State did not engage in reasonable efforts to reunite him with the child, there is sufficient evidence in the record to support termination, the juvenile court properly denied the father’s request for additional time, and termination is in the child’s best interests.  We affirm the decision of the juvenile court.

Case No. 19-1293:  In the Interest of M.M. and C.M., Minor Children

Filed Nov 06, 2019

View Opinion No. 19-1293

            Appeal from the Iowa District Court for Buena Vista County, Mary L. Timko, Associate Juvenile Judge.  REVERSED ON BOTH APPEALS AND REMANDED.  Considered by Vaitheswaran, P.J., Greer, J., and Blane, S.J.  Opinion by Blane, S.J.  Dissent by Vaitheswaran, P.J.  (10 pages)

            Mother of two of the children and father of one appeal the termination of their parental rights and contend that the juvenile court should have granted their requests for a six-month extension under Iowa Code section 232.104(2)(b) (2019) and not ordered termination.  OPINION HOLDS: Because the parents were making positive efforts to change behavior which was the basis for removal, the juvenile court should have granted the extension.  DISSENT ASSERTS: I would affirm the juvenile court’s denial of six additional months to work toward reunification and the termination of parental rights to the children.

Case No. 19-1343:  In the Interest of L.H., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1343

            Appeal from the Iowa District Court for Scott County, Christine Dalton, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (6 pages)

            A father appeals a dispositional-review order in a child-in-need-of-assistance proceeding.  The father argues the court erred in finding the Iowa Department of Human Services (DHS) made reasonable efforts toward reunification and in failing to change the child’s placement.  OPINION HOLDS: Our de novo review of the record reveals the father’s failure to timely comply with substance-abuse and psychological evaluations justifies the district court’s refusal to order more in-home visitation.  Clear and convincing evidence supports the district court’s finding DHS made reasonable efforts.  Furthermore, we agree with the juvenile court’s denial of the motion for change of placement, favoring the child’s placement in an appropriate long-term placement until the child can be returned to a parental home.

Case No. 19-1391:  In the Interest of S.R., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1391

            Appeal from the Iowa District Court for Pottawattamie County, Eric J. Nelson, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Bower, C.J.  (6 pages)

            A mother appeals the juvenile court decision terminating her parental rights.  OPINION HOLDS: We find sufficient evidence supports the termination, additional time is unwarranted, and termination is in the best interests of the child.  We affirm.

Case No. 19-1411:  In the Interest of A.C. and A.C., Minor Children

Filed Nov 06, 2019

View Opinion No. 19-1411

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Greer, JJ.  Opinion by Greer, J.  (10 pages)

            A mother appeals the termination of her parental rights to two minor children.  The mother argues the State failed to prove she was not able to resume custody of the children at the time of the termination hearing and termination is not in the children’s best interests.  OPINION HOLDS: The State proved the mother could not resume custody of the children at the time of the termination hearing by clear and convincing evidence and termination is in the best interests of the children.

Case No. 19-1418:  In the Interest of A.D., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1418

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (9 pages)

            Both parents appeal the juvenile court order terminating their parental rights.  OPINION HOLDS: We find it would not be in the child’s best interests to grant the parents an extension of time to work on reunification, there is clear and convincing evidence in the record to support termination of their parental rights, termination is in the child’s best interests, and none of the exceptions to termination should be applied.  The child has extensive medical needs which the parents are not able to meet.

Case No. 19-1446:  In the Interest of E.S., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1446

            Appeal from the Iowa District Court for Sioux County, Daniel P. Vakulskas, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., Mullins, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (10 pages)

            A mother and father separately appeal the termination of their parental rights.  OPINION HOLDS: The statutory grounds authorizing termination were met because the child could not be returned to either parent without a risk of harm.  Termination of both parents’ rights is in the child’s best interests.  The father’s bond with the child is not so strong to preclude termination.  Neither parent is entitled to additional time to work toward reunification.

Case No. 19-1450:  In the Interest of S.M., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1450

            Appeal from the Iowa District Court for Woodbury County, Mary L. Timko, Associate Juvenile Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            A father appeals the termination of his parental rights to his child, contending (1) the record lacks clear and convincing evidence to support the grounds for termination cited by the juvenile court and (2) termination was not in the child’s best interests.  OPINION HOLDS: We affirm the juvenile court’s termination of the father’s parental rights to the child.

Case No. 19-1457:  In the Interest of J.D., J.D., and M.S., Minor Children

Filed Nov 06, 2019

View Opinion No. 19-1457

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J.  (8 pages)

            Parents separately appeal a juvenile court order terminating their parental rights.  OPINION HOLDS: We affirm the termination of both parents’ parental rights.

Case No. 19-1499:  In the Interest of L.J., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1499

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (9 pages)

            A mother appeals the order terminating her parental rights to her daughter after she found her four-year-old dead due to an overdose of Benadryl.  She contests the statutory grounds under Iowa Code section 232.116(1) (2019), the best-interests determination under section 232.116(2), and the Court’s decision to not apply the permissive factor in section 232.116(3)(c).  She also claims the State did not make reasonable efforts to reunite her with L.J.  OPINION HOLDS: DHS made reasonable efforts toward reunification consistent with L.J.’s best interests.  Also, the mother has unresolved trauma and mental-health challenges that prevent reunification with L.J.  Next, we find troubling the mother’s pattern of neglectful parenting.  Finally, the record does not show their relationship remained so close that L.J. will be disadvantaged by the termination.

Case No. 17-2024:  Euric Abray Fountain v. State of Iowa

Filed Oct 23, 2019

View Opinion No. 17-2024

            Appeal from the Iowa District Court for Polk County, Jeanie Vaudt, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Bower, C.J., Mullins, J., and Vogel, S.J.  Opinion by Mullins, J.  (9 pages)

            Euric Fountain appeals the summary disposition of his seventh application for postconviction relief.  OPINION HOLDS:  We affirm the district court’s finding that information received by Fountain more than two decades ago does not amount to newly discovered evidence sufficient to toll the statute of limitations contained in Iowa Code section 822.3 (2017).  We find the court erred in its analysis concerning other purported newly discovered evidence, and we remand to the district court on that ground. 

Case No. 18-0387:  State of Iowa v. Arron Ozzy Joseph Thompson

Filed Oct 23, 2019

View Opinion No. 18-0387

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Tabor JJ.  Opinion by Tabor, J.  (7 pages)

            Arron Thompson appeals his convictions for burglary in the third degree and burglary in the first degree.  He contends the State failed to offer sufficient evidence to support his convictions and the district court erred in not granting his motion for judgment of acquittal.  Thompson also contends the district court abused its discretion in denying his motion for new trial.  OPINION HOLDS:  Finding the State offered substantial evidence of the two burglaries and the jury verdicts were not contrary to the weight of the evidence, we affirm those convictions.

Case No. 18-0514:  Farm Credit Services of America, FLCA v. Dale W. Braaksma, Danna S. Braaksma, and Braaksma Grain Farms, Inc.

Filed Oct 23, 2019

View Opinion No. 18-0514

            Appeal from the Iowa District Court for Osceola County, Carl J. Petersen, Judge.  APPEAL DISMISSED IN PART AND AFFIRMED IN PART.  Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.  Opinion by Tabor, J.  (10 pages)

            Borrowers appeal the district court’s denial of their motion to continue the lender’s action to foreclose their real estate mortgage.  They contend the district court abused its discretion in denying their motion to continue without holding an evidentiary hearing as required under Iowa Code section 654.15 (2017).  OPINION HOLDS: Since the events relevant here, the borrowers have lost any interest in one of the two properties at issue, therefore, the appeal is moot as to that note but may continue as to the remaining note.  Although the court professed not to be holding an “evidentiary hearing” on the motion to continue, it allowed the parties to address whether the borrowers filed the motion in good faith.  Both sides had a chance to comment, but the borrowers bypassed the opportunity.  The court did hold a hearing on the motion.  The borrowers filed their motion to continue on the day before the hearing on the lender’s motion for summary judgment.  That, along with the extent of their other indebtedness, led the district court to conclude the borrowers had not acted in good faith.  On our review, we see no abuse of discretion in that conclusion or the decision to deny the motion to continue.  We dismiss the appeal as to the moot note and affirm as to the other note. 

Case No. 18-0643:  Denver Sunset Nursing Home v. City of Denver, Iowa

Filed Oct 23, 2019

View Opinion No. 18-0643

            Appeal from the Iowa District Court for Bremer County, Christopher C. Foy, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., Vogel, S.J., and Scott, S.J.  Opinion by Vaitheswaran, P.J.  (13 pages)

            Denver Sunset Nursing Home appeals the district court’s order on the parties’ competing motions for summary judgment, contending the district court erred in limiting its recovery for overcharges by the City of Denver to a period within five years of its lawsuit.  OPINION HOLDS: The discovery rule applied to toll the statute of limitations until Denver Sunset learned of the overcharges.  We reverse the summary judgment ruling to the extent the court declined to apply the discovery rule to toll the statute of limitations.  We remand for further proceedings.  

Case No. 18-0754:  State of Iowa v. Carson Bruce Sinclair, Jr.

Filed Oct 23, 2019

View Opinion No. 18-0754

            Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (3 pages)

            Carson Sinclair Jr. appeals his conviction of eluding, challenging the sufficiency of the evidence to support the jury’s finding of guilt.  OPINION HOLDS: We affirm Sinclair’s judgment and sentence for eluding.

Case No. 18-0982:  State of Iowa v. Jeremy Walter Rose

Filed Oct 23, 2019

View Opinion No. 18-0982

            Appeal from the Iowa District Court for Cerro Gordo County, Rustin T. Davenport, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J. (4 pages)

            Jeremy Rose appeals his conviction of child endangerment resulting in serious injury, challenging a jury instruction alternative.  OPINION HOLDS: Because substantial evidence supports the deprivation-of-necessary-health-care alternative of child endangerment, the district court did not err in instructing the jury on that alternative.  We affirm Rose’s judgment and sentence for child endangerment resulting in serious injury.

Case No. 18-1087:  State of Iowa v. Danielle Lasley-Eakins

Filed Oct 23, 2019

View Opinion No. 18-1087

            Appeal from the Iowa District Court for Jefferson County, Daniel Kitchen, District Associate Judge.  AFFIRMED.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (6 pages)

            Danielle Lasley-Eakins appeals from her convictions for possession of methamphetamine and marijuana.  She argues article I, section 8 of the Iowa Constitution required certain evidence be suppressed.  OPINION HOLDS: Because the district court’s ruling did not address her state constitution claim, it is not preserved for our review.

Case No. 18-1265:  Robert Clauss v. Laidlaw & Company UK Ltd.

Filed Oct 23, 2019

View Opinion No. 18-1265

            Appeal from the Iowa District Court for Polk County, Gregory D. Brandt, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Doyle, J.  (9 pages)

            Upon discretionary review, defendant Laidlaw & Company UK LTD appeals the district court’s ruling affirming the small claims court magistrate’s ruling denying defendant’s motion to set aside the small claims judgment.  OPINION HOLDS:  We agree with the district court that Laidlaw presented no evidence of good cause to set aside the judgment.   So we affirm the small claims court’s entry of judgment for Clauss.

Case No. 18-1334:  In re the Detention of Keck

Filed Oct 23, 2019

View Opinion No. 18-1334

            Appeal from the Iowa District Court for Wapello County, Myron L. Gookin, Judge. AFFIRMED.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (8 pages)

            Austin Keck appeals from the district court’s finding that he was “presently confined” for purposes of the sexually violent predator act, Iowa Code chapter 229A (2017).  OPINION HOLDS: At the time the petition for civil commitment was filed, Keck was in the custody of the department of corrections serving his five-year prison term for his conviction of enticing a minor, a sexually violent offense.  He was thus presently confined for a sexually violent offense.  Finding no error of law, we affirm.

Case No. 18-1372:  In re the Detention of James Dake

Filed Oct 23, 2019

View Opinion No. 18-1372

            Appeal from the Iowa District Court for Appanoose County, Shawn R. Showers, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and May and Greer, JJ.  Opinion by Greer, J.  (8 pages)

            James Dake appeals the district court order adjudicating him a sexually violent predator and civilly committing him to the custody of the Iowa Department of Human Services.  Dake argues the State failed to prove he has a mental abnormality that makes it more likely than not he will reoffend.  OPINION HOLDS: We conclude there was substantial evidence in the record upon which a rational trier of fact could conclude Dake is a sexually violent predator beyond a reasonable doubt.

Case No. 18-1458:  In re the Marriage of Jenn

Filed Oct 23, 2019

View Opinion No. 18-1458

            Appeal from the Iowa District Court for Chickasaw County, John J. Bauercamper, Judge.  AFFIRMED AS MODIFIED ON APPEAL; AFFIRMED ON CROSS-APPEAL. Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  (7 pages)

            Thomas and Vermona Jenn appeal and cross-appeal, respectively, from the decree dissolving their marriage.  OPINION HOLDS: The district court’s property division was equitable given the constraints of the parties’ premarital agreement.  However, the district court erred in awarding Vermona spousal support.  We strike the spousal support award from the decree.

Case No. 18-1564:  State of Iowa v. Michael James Sykes

Filed Oct 23, 2019

View Opinion No. 18-1564

            Appeal from the Iowa District Court for Scott County, Cheryl Traum and Christine Dalton, District Associate Judges.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (8 pages)

            Michael Sykes appeals his conviction of assault causing bodily injury, contending the district court erred in its rulings on his confrontation and hearsay challenges to the admissibility of evidence.  Sykes also challenges the sufficiency of the evidence supporting his conviction.  OPINION HOLDS: We affirm Sykes’s conviction.

Case No. 18-1613:  EerieAnna Good and Carol Beal v. Iowa Department of Human Services

Filed Oct 23, 2019

View Opinion No. 18-1613

            Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Gamble, S.J., takes no part.  Opinion by Potterfield, J.  (11 pages)

            EerieAnna Good and Carol Beal appeal the district court ruling denying their application for attorney fees and costs incurred in their successful challenge of a regulation that prohibited Iowa Medicaid coverage of surgical procedures related to “sex reassignment” and “gender identity disorders.”  They brought their request for fees under the Iowa Civil Rights Act and the Iowa Equal Access to Justice Act.  Good and Beal maintain the district court erred in its interpretation of the statutes; they ask us to reverse the denial of their request and remand to the district court for the determination of the amount of reasonable attorney fees.  OPINION HOLDS: The district court did not err in its determination that neither Iowa Code section 216.16(6) nor section 625.29(1) (2018) applies.  Therefore, Good and Beal are not entitled to recover their attorney fees and costs.  We affirm.

Case No. 18-1685:  State of Iowa v. Derek Morrison

Filed Oct 23, 2019

View Opinion No. 18-1685

            Appeal from the Iowa District Court for Linn County, Mitchell E. Turner, Judge.  ELUDING CONVICTION VACATED, SENTENCES VACATED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J. (3 pages)

            Derek Morrison appeals his convictions and sentences after he pled guilty to various offenses.  OPINION HOLDS: Because the attempt to elude offense lacks a factual basis, we vacate this conviction and remand.  We also vacate the restitution portions of all the sentencing orders and remand.

Case No. 18-1698:  State of Iowa v. Amber Dawn Leahy

Filed Oct 23, 2019

View Opinion No. 18-1698

            Appeal from the Iowa District Court for Linn County, Mitchell E. Turner, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (4 pages)

            Amber Leahy appeals her guilty plea to possession of methamphetamine in violation of Iowa Code section 124.401(5) (2018), an aggravated misdemeanor.  Leahy alleges her legal representation fell below constitutional norms.  Leahy contends Iowa Code section 908.10A requires automatic parole revocation effective on the date of her new offense and she was unaware of that consequence.  Leahy claims she did not enter the guilty plea intelligently and voluntarily, and is entitled to have the plea set aside and to plead anew.  OPINION HOLDS: Because the record is not developed enough to resolve Leahy’s claim of confusion about the consequences of entering the guilty plea, we preserve the matter for a potential postconviction-relief proceeding. 

Case No. 18-1861:  State of Iowa v. Antonyo Machado

Filed Oct 23, 2019

View Opinion No. 18-1861

            Appeal from the Iowa District Court for Des Moines County, Emily Dean, District Associate Judge  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Bower, C.J.  Special concurrence by Doyle, J.  Dissent by Vaitheswaran, J.  (8 pages)

            Antonyo Machado appeals his plea of guilty to possession of a controlled substance, first offense, asserting the district court abused its discretion in imposing sentence rather than deferring judgment.  OPINION HOLDS: The record before us does not show Machado’s plea was conditioned upon the court granting Machado a deferred judgment.  The district court explained why it was not inclined to defer judgment, and the reasons given were not untenable or unreasonable.  The district court did not abuse its sentencing discretion.  We affirm.  SPECIAL CONCURRENCE ASSERTS: Based upon the record, including Machado’s signing the State’s plea offer, I agree with the majority that the record does not show Machado’s plea was conditioned upon the court granting him a deferred judgment.  DISSENT ASSERTS: I believe the plea was conditioned upon the court’s concurrence and, when the district court declined to grant Machado a deferred judgment as set forth in the written plea of guilty, the court was obligated to afford Machado the opportunity to withdraw the plea.   

Case No. 18-1879:  State of Iowa v. Timothy L. McGhee, Jr.

Filed Oct 23, 2019

View Opinion No. 18-1879

            Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Potterfield, P.J. (4 pages)

            Timothy McGhee Jr. appeals his prison sentence on three counts of theft in the second degree and one count of theft in the fourth degree.  McGhee maintains the sentencing court considered unproven offenses when imposing sentence; he asks that we remand for resentencing.  OPINION HOLDS: Without more than the court’s statement it was considering McGhee’s “further offenses”—of which there were properly two to consider—McGhee has not met his burden of affirmatively establishing error.  We affirm.

Case No. 18-1927:  State of Iowa v. Devontez David Voigts

Filed Oct 23, 2019

View Opinion No. 18-1927

            Appeal from the Iowa District Court for Story County, Bethany Currie, Judge.  AFFIRMED ON CONDITION AND REMANDED WITH DIRECTIONS.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J. (5 pages)

            Devontez Voigts appeals his convictions of second-degree sexual abuse and willful injury causing bodily injury.  He argues the district court erred in overruling his challenge to the racial composition of the jury pool, which violated his constitutional right to a jury drawn from a fair cross-section of the community.  OPINION HOLDS: We agree with the district court that Voigts failed to meet his burden to establish a prima facie case of a fair cross-section violation.  However, because the parties did not have the benefit of recent refinements to Iowa law, we remand the matter to the district court to give Voigts an opportunity to develop his argument that his constitutional right to an impartial jury was violated; if the court finds a violation occurred, it shall grant Voigts a new trial. 

Case No. 18-2186:  State of Iowa v. Justin Charles Fiems

Filed Oct 23, 2019

View Opinion No. 18-2186

            Appeal from the Iowa District Court for Des Moines County, Emily S. Dean, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., Greer, J., and Danilson, S.J.  Opinion by Danilson, S.J. (3 pages)

            Justin Fiems challenges the sufficiency of the evidence that he knowingly acted in a manner creating a substantial risk to the child’s physical, mental, or emotional health of safety.  OPINION HOLDS: By locking his seven-year-old child in a bare basement room for ten to twelve hours a night and leaving the child without access to a bathroom, communication, or egress, the jury could find Fiems knowingly created a substantial risk of emotional, mental, and physical harm.  We therefore affirm.

Case No. 19-0190:  Dan Brewer and Linda Brewer v. Scott Plagman and Randy Deardorff, as Trustee of the Randy G. Deardorff 2009 Revocable Trust, dated July 2, 2009

Filed Oct 23, 2019

View Opinion No. 19-0190

            Appeal from the Iowa District Court for Dallas County, Bradley McCall, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Doyle, J.  (6 pages)

            The defendants appeal the district court order granting the plaintiffs a boundary by acquiescence.  OPINION HOLDS: Assuming the district court erred in admitting hearsay evidence at trial, the evidence did not prejudice the defendants.  Even disregarding this evidence, substantial evidence supports the district court’s finding that the plaintiffs established a boundary by acquiescence.    

Case No. 19-0406:  In the Interest of A.K. and T.K., Minor Children

Filed Oct 23, 2019

View Opinion No. 19-0406

            Appeal from the Iowa District Court for Buchanan County, Linnea M.N. Nichol, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (4 pages)

            A father appeals the termination of his parental rights.  OPINION HOLDS: On our de novo review, we conclude termination was warranted under Iowa Code section 600A.8(9) (2018), and we agree with the district court’s conclusion that termination of the father’s parental rights to the children was in the children’s best interests.

Case No. 19-1020:  In the Interest of N.B., Minor Child

Filed Oct 23, 2019

View Opinion No. 19-1020

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (6 pages)

            A father appeals the termination of his parental rights to his child, challenging the sufficiency of the evidence supporting the statutory grounds for termination and contending the juvenile court should have applied the statutory exception under Iowa Code section 232.116(3)(a) (2019) to preclude termination.  OPINION HOLDS: We affirm the decision of the juvenile court to terminate the father’s parental rights.

Case No. 19-1089:  In the Interest of A.B., S.C., and M.C., Minor Children

Filed Oct 23, 2019

View Opinion No. 19-1089

            Appeal from the Iowa District Court for Polk County, Kimberly Ayotte, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (5 pages)

            A mother appeals the termination of her parental rights to three children, contending the State failed to prove the children could not be returned to her custody at the time of the termination hearing.  OPINION HOLDS: We affirm the termination of the mother’s parental rights to the children.

Case No. 19-1200:  In the Interest of R.H., Minor Child

Filed Oct 23, 2019

View Opinion No. 19-1200

            Appeal from the Iowa District Court for Pottawattamie County, Charles D. Fagan, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Blane, S.J.  Opinion by Blane, S.J.  (7 pages)

            The mother appeals the termination of her parental rights.  She disputes some of the statutory grounds relied upon by the juvenile court, maintains termination is not in the child’s best interests, argues she should be given more time to work toward reunification, and challenges the juvenile court’s denial of her request to modify disposition to place the child with the maternal grandmother.  OPINION HOLDS: The State proved a ground for termination by clear and convincing evidence.  Termination is in the child’s best interest.  Additional time for the mother to work toward unification is not warranted.  And the mother no longer has standing to appeal the denial of the motion on placement.  We affirm.

Case No. 19-1368:  In the Interest of F.P., Minor Child

Filed Oct 23, 2019

View Opinion No. 19-1368

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge. AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Vogel, S.J.  Opinion by Vogel, S.J.  (6 pages)

            A mother appeals a juvenile court order terminating her parental rights.  OPINION HOLDS: We find there is sufficient evidence in the record that the child cannot be returned to the mother, termination is in the child’s best interests to give the child stability, and custody of the child with her father does not militate against termination.  We affirm the decision of the juvenile court.

Case No. 19-1451:  In the Interest of G.T., Minor Child

Filed Oct 23, 2019

View Opinion No. 19-1451

            Appeal from the Iowa District Court for Dubuque County, Thomas J. Straka, Associate Juvenile Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (8 pages)

            A mother appeals the juvenile court’s termination of her parental rights.  OPINION HOLDS: We conclude termination was appropriate under Iowa law and consistent with the child’s best interests.

Case No. 17-1945:  State of Iowa v. Jacob Lawrence Hansen

Filed Oct 09, 2019

View Opinion No. 17-1945

            Appeal from the Iowa District Court for Marshall County, Kim M. Riley, District Associate Judge.  SENTENCES AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J. (4 pages)

            Jacob Hansen appeals the sentences imposed on his convictions after pleading guilty to third-degree burglary and third-degree attempted burglary.  OPINION HOLDS: Hansen waived error on his claim that considering his risk assessment score in sentencing violated his due process rights.  Risk assessment scores and sentencing recommendations are not inherently improper considerations in sentencing.  Hansen may raise his claim that counsel was ineffective in failing to object to these considerations before sentencing in a postconviction-relief proceeding.  We vacate the court’s orders for restitution and remand the matter to the district court for receipt of a final restitution plan and a determination of Hansen’s reasonable ability to pay.

Case No. 17-2103:  State of Iowa v. Knicolas Davon Lewis

Filed Oct 09, 2019

View Opinion No. 17-2103

            Appeal from the Iowa District Court for Pottawattamie County, Susan Christensen, Judge.  SENTENCE VACATED AND REMANDED FOR RESENTENCING.  Considered by Potterfield, P.J., and Doyle and Greer, JJ.  Opinion by Potterfield, P.J. (3 pages)

            Knicolas Lewis appeals from his sentence for robbery in the second degree. He maintains the sentencing court’s refusal to consider a deferred judgment as a sentencing option constituted an abuse of discretion.  OPINION HOLDS: Iowa Code section 901.5(14) (2017) gave the court discretion to enter a deferred judgment in Lewis’s case.  Because the court was unaware it could enter a deferred judgment, we vacate Lewis’s sentence and remand for resentencing. 

Case No. 18-0050:  State of Iowa v. Nathan D. Jacobson

Filed Oct 09, 2019

View Opinion No. 18-0050

            Appeal from the Iowa District Court for Floyd County, DeDra Schroeder, Judge.  CONVICTION AFFIRMED; SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J. (8 pages)

            The defendant appeals his sentence for child endangerment causing bodily injury following his plea of guilty.  OPINION HOLDS: The district court did not abuse its discretion in considering the risk assessment tools as contained within the presentence investigation report.  The defendant failed to preserve error on his due process and abuse-of-discretion claims, and the record is insufficient to reach these due process and abuse-of-discretion claims on direct appeal within the ineffective-assistance of counsel framework.  In addition, because sentencing courts are not required to expressly consider mitigating features of youth factors “on the record”, the district court did not abuse its discretion in sentencing.  Also, because Jacobson’s written sentencing order does not comply with the statutory procedures outlined in State v. Albright, 925 N.W.2d 144, 158 (Iowa 2019), we vacate that part of the sentence and remand for the district court to impose restitution consistent with the Albright directives.

Case No. 18-0177:  In the Matter of the Trust of Floyd F. Kallmer

Filed Oct 09, 2019

View Opinion No. 18-0177

            Appeal from the Iowa District Court for Buena Vista County, David A. Lester, Judge.  AFFIRMED ON APPEAL; REVERSED AND REMANDED ON CROSS-APPEAL.  Heard by May, P.J., Scott, S.J. and Gamble, S.J.  Opinion by May, P.J.  (10 pages)

            This is a dispute over a trust.  James and William claim they are the only beneficiaries.  L.K. claims he is also a beneficiary.  The district court sided with James and William.  L.K. appeals that determination.  L.K. also appeals the district court’s refusal to appoint a co-GAL for him.  James and William cross-appeal an order requiring the trust to pay L.K.’s attorney fees for this appeal. OPINION HOLDS: (1) The district court did not abuse its discretion in declining to appoint a co-GAL.  The appointment would have certainly created costs for the trust; but there was no reasonable hope the appointment would create any concrete benefit for L.K.  (2) The district court was correct in granting summary judgment and declaring James and William are the sole beneficiaries of the trust.  L.K. claimed he was a beneficiary because of equitable adoption; but L.K. admits he cannot meet Iowa’s requirements for equitable adoption.  (3) The district court erred in taxing the GAL’s appellate attorney fees prior to the appeal.  On remand, the district court shall tax them as costs to L.K., the unsuccessful party on appeal.  If the fees “cannot be collected” from L.K., the GAL may file a motion under Iowa Code section 625.5. 

Case No. 18-0241:  Jader Enterprises, L.L.C. v. Donald Buhr

Filed Oct 09, 2019

View Opinion No. 18-0241

            Appeal from the Iowa District Court for Fayette County, John J. Bauercamper, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., Doyle, J., and Vogel, S.J.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Jader Enterprises, L.L.C. appeals, and Donald Buhr cross-appeals, from the district court’s ruling on a breach-of-contract action.  OPINION HOLDS: Because the district court’s underlying finding of impossibility lacked evidentiary support and because there were no findings on the key elements of Jader’s claim and Buhr’s counterclaim, we cannot decide whether there is sufficient evidence to support the claim and counterclaim.  We reverse and remand for a new trial on both. 

Case No. 18-0269:  State of Iowa v. Jeremy James Davolt

Filed Oct 09, 2019

View Opinion No. 18-0269

            Appeal from the Iowa District Court for Lee (South) County, John M. Wright and Mary Ann Brown, Judges.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J. (4 pages)

            Jeremy Davolt challenges the district court’s use of the sentencing recommendation of the department of corrections in the presentence investigation (PSI) report and the order to reimburse correctional fees when Davolt does not have a reasonable ability to pay the fees.  OPINION HOLDS: We find the district court did not abuse its discretion in considering the PSI report recommendation during sentencing, and we vacate the restitution order and remand for a determination of Davolt’s reasonable ability to pay.

Case No. 18-0593:  State of Iowa v. Tera M. Harris

Filed Oct 09, 2019

View Opinion No. 18-0593

            Appeal from the Iowa District Court for Black Hawk County, Joel A. Dalrymple, Judge.  CONVICTION AFFIRMED, SENTENCE VACATED IN PART, AND REMANDED FOR RESENTENCING.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J. (3 pages)

            Tera Harris appeals her sentence.  She claims the district court improperly considered a sentence recommendation within the presentence investigation report (PSI).  And she argues the district court failed to make an ability-to-pay determination before ordering her to pay court costs.  OPINION HOLDS: We find the district court did not abuse its discretion by considering the PSI’s sentencing recommendation.  And we vacate the restitution portion of the sentencing order and remand.

Case No. 18-0645:  State of Iowa v. Rayshon T.P. Rushing

Filed Oct 09, 2019

View Opinion No. 18-0645

            Appeal from the Iowa District Court for Polk County, Heather L. Lauber and Robert B. Hanson, Judges.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            Rayshon Rushing appeals his conviction for being a felon in possession of a firearm.  Rushing claims the district court did not have the authority to place him at a residential facility and revoke his probation for rule violations.  He also claims the court erred in ordering him to pay the law-enforcement-initiative surcharge.  OPINION HOLDS: We find the court had the authority to place Rushing in the residential facility and to revoke his probation.  We find the surcharge was not applied and Rushing’s claim is without merit.  We affirm.

Case No. 18-0811:  James Rixner and the Sioux City Human Rights Commission of the City of Sioux City v. James W. Boyd Revocable Trust and Jennifer Boyle and James W. Boyd, Individually

Filed Oct 09, 2019

View Opinion No. 18-0811

            Appeal from the Iowa District Court for Woodbury County, Jeffrey L. Poulson, Judge.  REVERSED AND REMANDED.  Heard by Potterfield, P.J., and Bower and Greer, JJ.  Opinion by Greer, J.  (11 pages)

            James Rixner and the Sioux City Human Rights Commission argue the district court abused its discretion in striking a paragraph of their petition alleging housing discrimination and erred in finding the plaintiffs are not aggrieved parties.  The defendants argue the petition is time barred, the plaintiffs have failed to argue they are the real party in interest, and the plaintiffs do not have standing to pursue this action.  OPINION HOLDS: We decline to address the statute of limitations and motion to strike issues and conclude that the plaintiffs have established they are aggrieved parties under the statute and have standing to pursue their claims.  We reverse and remand to the district court for further proceedings. 

Case No. 18-0916:  State of Iowa v. Taner Vongsengeth Mann

Filed Oct 09, 2019

View Opinion No. 18-0916

            Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  Special Concurrence by Potterfield, P.J.  (15 pages)

            Taner Mann appeals his convictions for five offenses, challenging the district court’s conclusion he was restored to competency and able to stand trial and submit a plea.  OPINION HOLDS: On our independent review of the record, we conclude Mann failed to show he remained incompetent to stand trial or plead.  SPECIAL CONCURRENCE ASSERTS:  I believe the better course of action would be to preserve Mann’s claims of ineffective assistance of counsel for possible future postconviction relief;  I disagree with the majority’s position that the record is adequate to decide the issue of the adequacy of proof supporting the ruling on restoration of competency.

Case No. 18-0946:  Qasim Ali Baloch v. Pioneer Hi-Bred International, Inc., Shalini Sabhu, Darrin Meyers, and Starla Wasielewski

Filed Oct 09, 2019

View Opinion No. 18-0946

            Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Vaitheswaran, P.J.  (18 pages)

            Qasim Baloch appeals the district court’s denial of his motion for new trial after a jury returned a verdict in favor of Pioneer Hi-Bred International, Inc. on his claims of employment discrimination.  On appeal, Baloch challenges (I) the sufficiency of the evidence supporting the jury verdict; (II) defense references to prior lawsuits; (III) the district court’s refusal to rescind Pioneer’s peremptory strikes of two jurors; and (IV) the district court’s decision to instruct the jury on his failure to mitigate damages.  OPINION HOLDS: Upon our review, we affirm and conclude (I) substantial evidence supports the jury verdict; (II) Baloch was not prejudiced by testimony about money damages because he raised a timely objection and prevailed on his request to bar an answer to the question; (III) the district court acted appropriately in denying Baloch’s challenges to Jurors 3 and 5; and (IV) the district court did not err in denying Baloch’s motion for directed verdict and his motion for new trial with regard to the jury instruction on mitigation of damages.

Case No. 18-0956:  State of Iowa v. James M. Bailey Jr.

Filed Oct 09, 2019

View Opinion No. 18-0956

            Appeal from the Iowa District Court for Scott County, Joel W. Barrows, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J. (3 pages)

            James Bailey Jr. appeals the sentence imposed after he pled guilty to first-degree theft.  OPINION HOLDS: The sentencing recommendation in the presentence investigation report is not inherently improper for the court to consider, and Bailey failed to preserve error on any claim it was improper based on the facts of his case.  Because the record is insufficient to allow us to resolve his ineffective-assistance-of-counsel claims on direct appeal, we preserve them for postconviction-relief proceedings. 

Case No. 18-0988:  State of Iowa v. Eddy Shami Muligande

Filed Oct 09, 2019

View Opinion No. 18-0988

            Appeal from the Iowa District Court for Story County, Steven P. Van Marel, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  Special Concurrence by Doyle, J.  (6 pages)

            Muligande pled guilty to two charges of public intoxication, second offense.  Each violation was a serious misdemeanor under Iowa Code sections 123.46(2) and 123.91 (2018).  For each violation, the district court imposed a one-year term of confinement.  The court ran the sentences consecutively for a total indeterminate term not to exceed two years.  On appeal, Muligande argues his sentence constitutes cruel and unusual punishment.  OPINION HOLDS: Muligande’s sentence does not violate the Eighth Amendment to the U.S. Constitution or article I, section 17 of the Iowa Constitution.  We affirm.  SPECIAL CONCURRENCE ASSERTS: Muligande’s term of two year’s imprisonment is stunning, but the majority got the law right and I am duty-bound to concur.

Case No. 18-1043:  State of Iowa v. William Gene Moyers

Filed Oct 09, 2019

View Opinion No. 18-1043

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

            William Moyers appeals the sentence imposed upon his plea of guilty, asserting the district court erred in considering the recommendation of the department of corrections included in the presentence investigation report.  OPINION HOLDS:  Because the district court did not abuse its discretion when it considered pertinent information contained in the report, and Moyer’s counsel did not provide ineffective assistance, we affirm.

Case No. 18-1112:  State of Iowa v. Kenneth Jerome Winston

Filed Oct 09, 2019

View Opinion No. 18-1112

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (5 pages)

            Kenneth Winston appeals the sentences imposed following his guilty pleas.  OPINION HOLDS: The court provided sufficient and adequate reasons to run Winston’s sentences consecutive to his sentence for a parole violation, satisfying the requirement of Iowa Rule of Criminal Procedure 2.23(3)(d). 

Case No. 18-1142:  State of Iowa v. Montreal Shorter

Filed Oct 09, 2019

View Opinion No. 18-1142

            Appeal from the Iowa District Court for Polk County, Cynthia M. Moisan, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J. (8 pages)

            Montreal Shorter appeals his conviction for possessing or carrying a dangerous weapon while under the influence.  OPINION HOLDS: We reject Shorter’s claims of allegedly faulty jury instructions and ineffective assistance of counsel.  We affirm his conviction. 

Case No. 18-1182:  State of Iowa v. William Sean Porter

Filed Oct 09, 2019

View Opinion No. 18-1182

            Appeal from the Iowa District Court for Johnson County, Christopher L. Bruns, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J. (3 pages)

            William Porter appeals his sentencing order.  He challenges the district court’s use of the risk assessment in determining his sentence.  And he claims the district court abused its discretion by not suspending his forcible-felony fine.  OPINION HOLDS: We affirm without further opinion pursuant to Iowa Court Rule 21.26(1)(a), (c), and (e).

Case No. 18-1266:  State of Iowa v. Patrick Lavern Holt

Filed Oct 09, 2019

View Opinion No. 18-1266

            Appeal from the Iowa District Court for Cerro Gordo County, James M. Drew, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Greer, JJ.  Opinion by Greer, J. (12 pages)

            Patrick Holt appeals from his conviction and sentence for lascivious acts with a child.  OPINION HOLDS: We conclude the district court did not abuse its discretion in denying Holt’s motion for new trial, imposing the sentence, or instructing the jury.  We also conclude that the expert witness’s trial testimony was not improper vouching and Holt failed to show his counsel ineffective by failing to object to this testimony.  We affirm.

Case No. 18-1289:  State of Iowa v. Brooke Lynn Trimble

Filed Oct 09, 2019

View Opinion No. 18-1289

            Appeal from the Iowa District Court for Black Hawk County, Jeffrey L. Harris, District Associate Judge.  SENTENCES VACATED AND REMANDED FOR RESENTENCING.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (8 pages)

            Brooke Trimble appeals her sentences for domestic abuse assault and violation of a no-contact order.  OPINION HOLDS: Because we find the district court improperly considered allegations of attempted sexual abuse, we conclude it abused its discretion.  Accordingly, we remand for resentencing.

Case No. 18-1327:  State of Iowa v. Ambrashia Marie Chrzan

Filed Oct 09, 2019

View Opinion No. 18-1327

            Appeal from the Iowa District Court for Washington County, Myron Gookin, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J. (6 pages)

            Ambrashia Chrzan appeals her conviction for child endangerment resulting in death.  She asserts trial counsel was ineffective in failing to object to prior-bad-acts evidence and in failing to object to a jury instruction that prior statements made by the defendant could be considered as if made at trial.  OPINION HOLDS: We affirm the conviction, preserve the first ineffective-assistance claim for possible postconviction proceedings, and reject the second ineffective-assistance claim on the merits.

Case No. 18-1382:  State of Iowa v. Logan Shoemaker

Filed Oct 09, 2019

View Opinion No. 18-1382

            Appeal from the Iowa District Court for Scott County, Tom Reidel, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Greer, JJ.  Opinion by Potterfield, P.J. (11 pages)

            Logan Shoemaker challenges his convictions of attempted murder, willful injury causing serious injury, and robbery in the first degree.  He maintains there is insufficient evidence to support his convictions for attempted murder and willful injury causing serious injury because the State failed to prove he had the specific intent to cause death or serious injury, respectively.  He challenges his conviction for robbery in the first degree, claiming there was insufficient evidence to support that he intended to commit a theft—a necessary element of robbery—and maintains counsel provided ineffective assistance by failing to move for judgment of acquittal on that ground.  Similarly, he also maintains counsel provided ineffective assistance by failing to request a separate instruction defining theft for the jury.  OPINION HOLDS: Because substantial evidence supports Shoemaker’s convictions for attempted murder and willful injury causing serious injury, we affirm.  We cannot decide Shoemaker’s claims of ineffective assistance of counsel on the record before us, so we preserve them for possible postconviction-relief proceedings.

Case No. 18-1385:  State of Iowa v. Phillip Williams

Filed Oct 09, 2019

View Opinion No. 18-1385

            Appeal from the Iowa District Court for Polk County, Heather Lauber, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J. (5 pages)

            Phillip Williams appeals his sentence following his guilty plea to attempted burglary.  At sentencing, Williams limited his expression of remorse to what his crime “cost [him in] custody, visitation, [and] phone contacts . . .  [f]or the better part of a year.”  The sentencing court considered Williams’s lack of attention to the victim’s situation among the many factors it weighed before choosing to send him to prison.  Williams contends the sentencing court abused its discretion in considering his failure to acknowledge how his actions “affected the victim of this case.”  OPINION HOLDS: A defendant’s attitude about his crime informs what he needs to accomplish in his rehabilitation.  Nothing in this record shows the sentencing court abused its discretion by relying on an improper factor.

Case No. 18-1482:  State of Iowa v. Alto Lee Patrick Jos Thomas III

Filed Oct 09, 2019

View Opinion No. 18-1482

            Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Greer, JJ.  Opinion by Potterfield, J.  (4 pages)

            Alto Thomas appeals his sentence for failing to affix a drug tax stamp.  Thomas argues the sentencing court abused its discretion by improperly relying on a risk assessment tool when it considered the presentence investigation report recommended sentence, which included an assessment of Thomas under risk assessment tools.  Thomas further argues his trial counsel was ineffective for failing to object to the sentencing court’s consideration of the recommended sentence.  OPINION HOLDS: The sentencing court did not abuse its discretion by considering the recommendation.  We preserve Thomas’s ineffective assistance of counsel claim for posconviction-relief proceedings.  We affirm.

Case No. 18-1523:  State of Iowa v. Robert Ray Mannetter

Filed Oct 09, 2019

View Opinion No. 18-1523

            Appeal from the Iowa District Court for Floyd County, James M. Drew, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J. (4 pages)

            Robert Mannetter appeals his conviction of third-degree sexual abuse forwarding claims of prosecutorial error and ineffective assistance of counsel.  OPINION HOLDS: We reject Mannetter’s arguments on appeal and affirm his conviction of third-degree sexual abuse. 

Case No. 18-1628:  State of Iowa v. Tiffany Marie Pennington

Filed Oct 09, 2019

View Opinion No. 18-1628

            Appeal from the Iowa District Court for Lee (North) County, John M. Wright, Judges.  SENTENCE VACATED AND REMANDED FOR RESENTENCING.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Tabor, J.  (7 pages)

            A defendant appeals her sentence following her guilty plea for possession of methamphetamine.  She contends the State breached the plea agreement by giving only a halfhearted recommendation for a suspended sentence and plea counsel was ineffective for not objecting.  OPINION HOLDS:  We find the State injected “material reservations” about the defendant’s prospects for success on probation, and counsel had a duty to object.  Prejudice is presumed in these circumstances.  Accordingly, we vacate the sentence and remand for resentencing. 

Case No. 18-1640:  State of Iowa v. Ricky Timothy Williams

Filed Oct 09, 2019

View Opinion No. 18-1640

            Appeal from the Iowa District Court for Linn County, Nancy A. Baumgartner, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Vaitheswaran, P.J.  (3 pages)

            Ricky Williams appeals following his guilty plea to attempting to elude, a drug tax stamp violation, interference with official acts, possession of cocaine, and possession of marijuana.  OPINION HOLDS: We affirm Williams’ plea and sentences.

Case No. 18-1647:  State of Iowa v. Ivie Thomas Popplewell III

Filed Oct 09, 2019

View Opinion No. 18-1647

            Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J. (5 pages)

            Ivie Popplewell appeals his conviction for second-degree theft.  OPINION HOLDS: Because the record before the district court at the time of the plea provides a sufficient basis for finding Popplewell committed theft under Iowa Code section 714.1(4) (2018), his counsel was not ineffective in allowing him to plead guilty. 

Case No. 18-1714:  Brianna Conrad v. Charles Conrad, Jr.

Filed Oct 09, 2019

View Opinion No. 18-1714

            Appeal from the Iowa District Court for Linn County, Patrick R. Grady, Judge.  AFFIRMED.  Considered by Mullins, P.J., and Bower and May, JJ.  Opinion by Mullins, P.J.  (8 pages)

            Brianna Conrad appeals the dismissal of her contempt actions in domestic abuse proceedings.  OPINION HOLDS: We conclude Brianna failed to meet her evidentiary burden for contempt and therefore affirm the dismissal of her contempt actions.

Case No. 18-1748:  Karen H. Saltern v. HNI Corporation and Gallagher Bassett Services, Inc.

Filed Oct 09, 2019

View Opinion No. 18-1748

            Appeal from the Iowa District Court for Muscatine County, John D. Telleen, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.  Opinion by Tabor, J.  (10 pages)

            An injured employee appeals the decision of the district court granting the defendant employer summary judgment on her claim the employer acted with bad faith in denying her workers’ compensation claim.  She also appeals the denial of her motion for partial summary judgment on the first element of the common-law tort of bad faith.  OPINION HOLDS:  Because we conclude the employer had a reasonable basis to deny the claim, we find the employer showed the employee could not prove the first element of her bad-faith claim, and the employer was entitled to summary judgment.  Seeing no error in the district court’s ruling, we affirm. 

Case No. 18-1825:  State of Iowa v. Jesse Robert Comly III

Filed Oct 09, 2019

View Opinion No. 18-1825

            Appeal from the Iowa District Court for Clarke County, Randy V. Hefner, Judge.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J. (4 pages)

            Jesse Comly appeals the sentences imposed after he pled guilty to lascivious acts with a child and dissemination and exhibition of obscene material to a minor.  OPINION HOLDS: Because the district court made no determination of Comly’s reasonable ability to pay, we vacate the court’s orders for restitution and remand the matter to the district court for receipt of a final restitution plan and a determination of Comly’s reasonable ability to pay.  We also vacate the $125 law-enforcement-initiative surcharge because it does not apply to the offenses to which Comly pled guilty, and we remand for entry of a corrected sentencing order.     

Case No. 18-1858:  State of Iowa v. Walter Louis Howard, Jr.

Filed Oct 09, 2019

View Opinion No. 18-1858

            Appeal from the Iowa District Court for Scott County, Henry W. Latham II and John Telleen, Judges.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (6 pages)

            Walter Howard Jr. appeals his guilty-plea conviction of third or subsequent domestic abuse assault, arguing his plea was unsupported by a factual basis and counsel was therefore ineffective in allowing him to plead guilty and thereafter failing to file a motion in arrest of judgment.  He also argues counsel was ineffective in failing to object to deficiencies in the plea colloquy in relation to said guilty plea and his guilty plea to a similar crime in another case arising out of a separate occurrence.  OPINION HOLDS: Having found counsel was not ineffective as alleged, we affirm Howard’s conviction and sentences.

Case No. 18-1876:  State of Iowa v. Justo Gonzalez

Filed Oct 09, 2019

View Opinion No. 18-1876

            Appeal from the Iowa District Court for Marshall County, Kim M. Riley, District Associate Judge.  CONVICTION AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND REMANDED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J. (3 pages)

            Justo Gonzales appealed his conviction, sentence, and Judgment following his guilty plea to Lascivious Acts with a child.  OPINION HOLDS: Because the recommendation of the department of correctional services is “pertinent information” for a court to consider when sentencing a defendant, the district court did not improperly consider the detailed sentencing recommendations of the presentence investigator preparer.  Also, because the sentencing order does not comply with statutory procedures outlined in State v. Albright, 925 N.W.2d 144, 159 (Iowa 2019), we vacate that part of the sentence and remand for the district court to impose restitution consistent with the Albright directives.

Case No. 18-1900:  Cedar Valley Medical Specialists, PC v. James Wright, M.D.

Filed Oct 09, 2019

View Opinion No. 18-1900

            Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Scott, S.J.  Opinion by Greer, J.  (14 pages)

            The district court enforced a liquidated damages provision based on a violation of a covenant not to compete in a cardiothoracic surgeon’s employment contract.  On appeal, the doctor argues that the covenant not to compete is unenforceable and prejudicial to the public interest and, in any event, the liquidated damages provision constitutes a penalty and is unenforceable.  OPINION HOLDS: We affirm the district court’s ruling enforcing the liquidated damages provision because it was necessary to protect the employer, did not unreasonably restrict the employee, did not violate public policy, and did not constitute an unenforceable penalty.

Case No. 18-1923:  In the Matter of the Estate of Ellen P. Van Ginkel, Deceased.

Filed Oct 09, 2019

View Opinion No. 18-1923

             Appeal from the Iowa District Court for Polk County, Craig E. Block, Associate Probate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.   Separate writing by Doyle, J. (12 pages)

            Joseph Van Ginkel III and Elizabeth Winterhalter, two of Ellen Van Ginkel’s six children, contested Ellen’s will, asserting: (1) Ellen lacked testamentary capacity to make the November 13, 2013 fourth codicil to her will, and (2) the will was a result of the undue influence of their sibling, Jennie Kronthal.  The district court entered summary judgment dismissing their claims.  Joe and Elizabeth appeal, contending the district court abused its discretion in considering police reports and an untimely-disclosed letter.  They also assert the court erred in concluding they failed to present sufficient evidence to go to a jury on the questions of Ellen’s lack of testamentary capacity or undue influence.  OPINION HOLDS: The plaintiffs waived their motion to strike the letter by appealing before obtaining a ruling.  Finding the evidence was insufficient to go to a jury, summary judgment was proper and we affirm.  SEPARATE WRITING STATES: I concur, but write separately to address two appellate practice points.  Iowa Rule of Appellate Procedure 6.905(4)(c) was violated as there are no descriptors in the table of contents for the 94 exhibits included in the parties’ appendix, nor does the table state the page numbers where each exhibit appears.  I believe rule 6.803(2)(f) prohibits submission of any condensed transcript to the appellate courts. And it should not matter whether the condensed transcript was attached to some filing in district court or included in the appendix as some random exhibit as appears here.

Case No. 18-2011:  State of Iowa v. Jordan Dean Gustafson

Filed Oct 09, 2019

View Opinion No. 18-2011

            Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (6 pages)

            Jordan Gustafson appeals his conviction for stalking in violation of Iowa Code section 708.11 (2018).  He claims the evidence does not prove beyond a reasonable doubt he “purposefully engaged in a course of conduct” to fall within the stalking statute, one of the incidents did not imply a threat of harm, and the felony enhancement should not apply to his conviction.  OPINION HOLDS: Because substantial evidence supports the conviction, we affirm the district court’s ruling.

Case No. 18-2021:  Francisco De La Rosa Garcia v. State of Iowa

Filed Oct 09, 2019

View Opinion No. 18-2021

            Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and May and Greer, JJ.  Tabor, J., takes no part.  Opinion by Greer, J.  Special Concurrence by May, J.  (10 pages)

            Francisco De La Rosa Garcia challenges the district court’s dismissal of his application for postconviction relief.  Garcia filed his application over three years after his conviction became final, but argued his application fell under the exception to the statutory time-bar.  OPINION HOLDS: The Iowa Supreme Court holding in Morales Diaz v. State, 896 N.W.2d 723, 732 (Iowa 2017), is not a new ground of law.  For that reason, Garcia’s application does not fall under the exception to the statutory time-bar.  We affirm the denial of Garcia’s PCR application.  SPECIAL CONCURRENCE ASSERTS: I agree the district court properly denied relief.  I write separately to suggest the district court was also correct in concluding Morales Diaz, 896 N.W.2d at 32, created a “new rule” that should not be applied retroactively.

Case No. 18-2047:  In re the Marriage of O'Toole

Filed Oct 09, 2019

View Opinion No. 18-2047

            Appeal from the Iowa District Court for Scott County, Thomas G. Reidel, Judge.  AFFIRMED AS MODIFIED.  Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Sean O’Toole appeals several provisions of the decree dissolving his marriage to Laura O’Toole.  Sean contends the district court acted inequitably in failing to (1) grant the parents joint physical care of the children and (2) provide more expansive visitation.  OPINION HOLDS: We conclude the district court acted equitably in denying Sean’s request for joint physical care.  We modify the visitation portion of the decree to extend Sean’s weeknight and summer visitation.  We decline Laura’s request to have Sean pay her appellate attorney-fee obligation.

Case No. 18-2121:  State of Iowa v. Joshua Andre Black

Filed Oct 09, 2019

View Opinion No. 18-2121

            Appeal from the Iowa District Court for Carroll County, Joseph McCarville, District Associate Judge.  CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (3 pages)

            Joshua Black appeals his conviction and sentence after pleading guilty of domestic abuse assault.  He argues the sentencing procedure was defective and counsel was ineffective.  OPINION HOLDS: We find Black did not knowingly and intentionally waive his right of allocution.  Thus, we must remand for resentencing.  We also find the record is insufficient to address his ineffective-assistance claim.  So we preserve his claims for a future postconviction-relief action.

Case No. 18-2153:  State of Iowa v. Hamilton S. Drane

Filed Oct 09, 2019

View Opinion No. 18-2153

            Appeal from the Iowa District Court for Polk County, Heather L. Lauber and Robert J. Blink, Judges. AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (4 pages)

            Hamilton Drane appeals the judgment and sentence imposed upon his September 21, 2018 guilty pleas to being a felon in possession of a firearm and operating a motor vehicle while intoxicated, contending his firearm plea was not knowingly and voluntarily entered and plea counsel was ineffective in failing to file a motion in arrest of judgment.  OPINION HOLDS: The record adequately establishes Drane was a felon in possession of a firearm, as shown by the guilty-plea colloquy and the minutes of testimony.  The colloquy also supports the court’s finding that Drane entered his plea voluntarily.  Because counsel has no duty to file a meritless motion, his ineffectiveness claim fails, and we affirm his convictions.

Case No. 19-0014:  State of Iowa v. Ryan Bradley Tostenson

Filed Oct 09, 2019

View Opinion No. 19-0014

            Appeal from the Iowa District Court for Worth County, Colleen D. Weiland, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (9 pages)

            Ryan Tostenson appeals following his conviction for operating while intoxicated, challenging the denial of his motion to suppress evidence obtained during a traffic stop.  OPINION HOLDS: The officer did not have reasonable suspicion to believe that Tostenson violated Iowa Code section 321.266 (2018) by leaving the scene of an accident involving personal property because nothing in that section required him to stay at the scene of the accident.  A violation of Iowa Code section 321.288(1) cannot be justification for the stop because the accident did not occur on a public road or highway.  Finally, the record does not disclose facts on which an officer could reasonably believe Tostenson intentionally damaged a light pole.  Because State has failed to establish a lawful basis for the stop, we reverse the order denying Tostenson’s motion to suppress and remand to the district court for a new trial.

Case No. 19-0232:  State of Iowa v. Stuart Michael Vanmersbergen

Filed Oct 09, 2019

View Opinion No. 19-0232

            Appeal from the Iowa District Court for Warren County, James D. Birkenholz, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Mullins and Greer, JJ.  Opinion by Greer, J.  (4 pages)

            A defendant challenges his guilty plea to operating while intoxicated, second offense, and operating without registration.  He argues his counsel was ineffective for failing to ensure that he understood the plea agreement before pleading guilty.  OPINION HOLDS: The record is inadequate to address the defendant’s claim of ineffective assistance of counsel on direct appeal and we preserve his claim for a possible postconviction-relief application. 

Case No. 19-0807:  In the Interest of K.D., Minor Child

Filed Oct 09, 2019

View Opinion No. 19-0807

            Appeal from the Iowa District Court for Page County, Amy Zacharias, Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (4 pages)

            A mother and father separately appeal from adjudicatory and dispositional orders of the juvenile court in a child-in-need-of-assistance proceeding.  OPINION HOLDS: On our de novo review, we find clear and convincing evidence supports the juvenile court’s adjudicatory order and the continuance of removal at the time of disposition.

Case No. 19-0931:  In the Interest of L.H., G.G., and A.E., Minor Children

Filed Oct 09, 2019

View Opinion No. 19-0931

            Appeal from the Iowa District Court for Scott County, Christine Dalton, District Associate Judge.   AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (15 pages)

            A mother and father separately appeal the juvenile court’s removal, adjudicatory, and dispositional orders in a child-in-need-of-assistance proceeding.  OPINION HOLDS: On our de novo review, we affirm the juvenile court on all issues.

Case No. 19-0995:  In the Interest of M.P. and M.P., Minor Children

Filed Oct 09, 2019

View Opinion No. 19-0995

            Appeal from the Iowa District Court for Montgomery County, Amy Zacharias, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (12 pages)

            A father appeals the juvenile court’s termination of his parental rights.  OPINION HOLDS: We conclude termination was appropriate under Iowa law and consistent with the children’s best interests.

Case No. 19-1041:  In the Interest of J.G. and A.G., Minor Children

Filed Oct 09, 2019

View Opinion No. 19-1041

            Appeal from the Iowa District Court for Winnebago County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (3 pages)

            A mother appeals the termination of her parental rights to her two children.  OPINION HOLDS: No grounds for reversal have been presented.  We affirm without further opinion pursuant to Iowa Court Rule 21.26(1)(e).

Case No. 19-1201:  In the Interest of E.B., Minor Child

Filed Oct 09, 2019

View Opinion No. 19-1201

            Appeal from the Iowa District Court for Appanoose County, William S. Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Carr, S.J.  Opinion by Carr, S.J.  (4 pages)

            A mother appeals the juvenile court order terminating her parental rights.  OPINION HOLDS: We find there is clear and convincing evidence in the record to support termination of the mother’s parental rights and termination is in the child’s best interests.  We affirm the decision of the juvenile court.

Case No. 19-1209:  In the Interest of N.M.-R., Minor Child

Filed Oct 09, 2019

View Opinion No. 19-1209

            Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (9 pages)

            A mother appeals the juvenile court’s termination of her parental rights.  OPINION HOLDS: We conclude (1) grounds for termination exist, (2) termination is in the child’s best interest, (3) no exception should lead us to forgo termination, and (4) the State made reasonable efforts toward reunification.

Case No. 19-1211:  In the Interest of P.N., Minor Child

Filed Oct 09, 2019

View Opinion No. 19-1211

            Appeal from the Iowa District Court for Pottawattamie County, Charles D. Fagan, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (5 pages)

            A mother appeals the termination of her parental rights to her child.  OPINION HOLDS: Clear and convincing evidence shows the State proved the grounds for terminating the mother’s parental rights under Iowa Code section 232.116(1)(h) (2019) and termination is in the child’s best interests.  The mother failed to preserve her challenge to the reasonable efforts made to return the child to her care.  We therefore affirm. 

Case No. 19-1261:  In the Interest of B.N. and I.N., Minor Children

Filed Oct 09, 2019

View Opinion No. 19-1261

            Appeal from the Iowa District Court for Pottawattamie County, Eric J. Nelson, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (9 pages)

            A father appeals the juvenile court order adjudicating his two daughters as children in need of assistance.  He contends the court erred in several evidentiary rulings and the State failed to present clear and convincing evidence to prove the grounds for adjudication.  OPINION HOLDS: We find the evidentiary rulings did not prejudice the father in these proceedings.  The State presented sufficient proof of the grounds for the adjudication.  Accordingly, we affirm. 

Case No. 19-1270:  In the Interest of A.D., Minor Child

Filed Oct 09, 2019

View Opinion No. 19-1270

            Appeal from the Iowa District Court for Scott County, Korie Shippee, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and Greer, JJ.  Opinion by Greer, J.  (7 pages)

            The father appeals the termination of his parental rights to A.D.  OPINION HOLDS: We agree with the juvenile court that the statutory grounds for termination are satisfied, termination is in the child’s best interests, and no factor precludes termination.

Case No. 19-1322:  In the Interest of S.S., Minor Child

Filed Oct 09, 2019

View Opinion No. 19-1322

            Appeal from the Iowa District Court for Cerro Gordo County, Adam D. Sauer, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (5 pages)

            A mother appeals the termination of her parental rights to her child, arguing she should be granted an extension of time to seek reunification and termination is not in the child’s best interests.  OPINION HOLDS: We agree with the juvenile court that an extension of time is not warranted and termination of the mother’s parental rights is in the child’s best interests. 

Case No. 19-1325:  In the Interest of D.V., D.V., L.V., and A.C., Minor Children

Filed Oct 09, 2019

View Opinion No. 19-1325

            Appeal from the Iowa District Court for Marshall County, Paul G. Crawford, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (2 pages)

            A father appeals the termination of his parental rights to his four minor children, contending termination is not in the children’s best interests and he should have been allowed an additional six months to work toward reunification.  OPINION HOLDS: We affirm the termination of the father’s parental rights.

Case No. 19-1355:  In the Interest of R.L., D.S., B.S., and K.S., Minor Children

Filed Oct 09, 2019

View Opinion No. 19-1355

            Appeal from the Iowa District Court for Keokuk County, Daniel Kitchen, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (4 pages)

            A mother appeals from the termination of her parental rights to four of her children.  She challenges one statutory ground authorizing termination and whether termination serves the children’s best interests.  OPINION HOLDS: Because the mother does not challenge all statutory grounds authorizing termination, we find grounds for termination are met.  We also find termination in the children’s best interests.

Case No. 19-1359:  In the Interest of Q.N., Minor Child

Filed Oct 09, 2019

View Opinion No. 19-1359

            Appeal from the Iowa District Court for Marion County, Steven Guiter, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., Greer, J., and Scott, S.J.  Opinion by Scott, S.J.  (6 pages)

            Parents separately appeal the termination of their parental rights to their child.  They each challenge the sufficiency of the evidence supporting the statutory ground for termination cited by the juvenile court, argue termination is not in the best interests of the child due to the closeness of the parent-child bonds, maintain the court should have applied statutory exceptions to termination, and request a six-month extension to work toward reunification.  OPINION HOLDS: We find the State met its burden for termination, termination serves the child’s best interests, and applying exceptions or granting an extension is unwarranted.  We affirm termination of the parents’ parental rights.

Case No. 18-0435:  Dustin Lee Truax v. State of Iowa

Filed Sep 25, 2019

View Opinion No. 18-0435

            Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and May and Greer, JJ.  Opinion by Potterfield, P.J.  (9 pages)

            Dustin Truax appeals from the denial of his application for postconviction relief following his conviction of two counts of lascivious acts with a child.  He challenges an amendment to the trial information and urges us to find trial and appellate counsel ineffective.  OPINION HOLDS: Having considered each of Truax’s claims, we agree with the PCR court that no relief is warranted.  We affirm.

Case No. 18-0850:  Edward Franzen v. Alan W. Kruger and West Union Dental Associates

Filed Sep 25, 2019

View Opinion No. 18-0850

            Appeal from the Iowa District Court for Fayette County, John C. Bauercamper, Judge. REVERSED AND REMANDED.  Heard by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (14 pages)

            A dentist appeals a post-trial ruling following a jury verdict for his patient in a malpractice action.  While performing a molar extraction the surgical bur from dentist’s handpiece used during that extraction disappeared.  X-rays revealed the presence of the bur in the patient’s lung.  The patient’s lung was partially removed in an attempt to remove the surgical bur resulting in loss in lung capacity.  The district court allowed the patient to introduce expert testimony to establish the standard of care necessary during such a procedure.  The expert relied heavily upon a survey project to formulate her opinion in determining the standard of care.  OPINION HOLDS: Because of the missing foundation to establish that the facts and data derived from those surveys were “of a type reasonably relied upon by experts” in the dentist’s field in determining the standard of care, this hearsay evidence was not admissible under Iowa Rule of Evidence  5.703.  Because it was admitted, we reverse and remand for new trial. 

Case No. 18-0974:  Jordan R. Holm v. State of Iowa

Filed Sep 25, 2019

View Opinion No. 18-0974

            Appeal from the Iowa District Court for Johnson County, Lars G. Anderson, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Mullins and Greer, JJ.  Opinion by Greer, J.  (3 pages)

            Jordan Holm appeals the denial of his application for postconviction relief.  OPINION HOLDS: We agree with the detailed ruling of the district court, and we affirm without further opinion.

Case No. 18-1098:  Davenport Development Group LLC and Ruhl Commercial Company, LLC doing business as NAI Ruhl Commercial Co. v. Irrevocable Trust of Donald L. Frantz, Dated October 22, 2010

Filed Sep 25, 2019

View Opinion No. 18-1098

            Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            A developer appeals the ruling of the district court, contending a seller breached certain real estate contracts.  OPINION HOLDS: We affirm the district court’s denial of the developer’s petition.

Case No. 18-1109:  S & A 786, LLC d/b/a Downtown Pantry v. City of Des Moines Zoning Board of Adjustment

Filed Sep 25, 2019

View Opinion No. 18-1109

            Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.  AFFIRMED.  Heard by Potterfield, P.J., and Bower and Greer, JJ.  Opinion by Bower, J.  (17 pages)

            The Zoning Board of Adjustment of the City of Des Moines (Board) appeals after the district court sustained the writ of certiorari by which S & A 786, LLC, doing business as Downtown Pantry (Pantry), challenged the legality of the Board’s revocation of its conditional use permit (CUP).  OPINION HOLDS: Because we agree with the district court there is not substantial evidence to support the Board’s finding the Pantry’s operation had created a nuisance and the revocation of the CUP was arbitrary and capricious, we affirm.

Case No. 18-1174:  State of Iowa v. Alan Ray Cassias

Filed Sep 25, 2019

View Opinion No. 18-1174

            Appeal from the Iowa District Court for Scott County, Mark R. Lawson, Judge.  CONVICTION AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND REMANDED.  Considered by Potterfield, P.J., May, J., and Carr, S.J.  Opinion by Carr, S.J. (7 pages)

            Alan Ray Cassias appeals his conviction and sentence for false imprisonment and sexual abuse in the third degree.  He argues the district court erred in admitting phone records and in stating he may be assessed appellate attorney fees unless he requests a hearing to determine his reasonable ability to pay.  OPINION HOLDS: We find the phone records were hearsay but their admission was cumulative and no prejudice resulted.  Therefore, we affirm his conviction.  However, the provision regarding appellate attorney fees is erroneous, and we vacate that provision and remand for entry of a corrected sentencing order.

Case No. 18-1186:  Olmstead Construction, Inc. v. Otter Creek Investments, LLC

Filed Sep 25, 2019

View Opinion No. 18-1186

            Appeal from the Iowa District Court for Linn County, Kevin McKeever, Judge.  AFFIRMED IN PART AND REVERSED IN PART ON APPEAL; CONDITIONALLY AFFIRMED ON CROSS-APPEAL; AND REMANDED.  Heard by Doyle, P.J., Blane, S.J. and Lloyd, S.J.  Opinion by Doyle, P.J.  (26 pages)

            Olmstead Construction, Inc. (Olmstead Construction) and Otter Creek Investments, LLC (Otter Creek) both appeal following resolution of their contract dispute.  They challenge the district court’s determination of various contract terms that affect the damages, attorney fees, and interest awarded on Olmstead Construction’s breach-of-contract claim.  We must also determine whether the district court erred by refusing to foreclose on a mechanic’s lien.  OPINION HOLDS: I. Olmstead Construction is not entitled to the $48,150 the district court awarded for costs of the billed subcontractor electrical work that was not a cost under the contract.  Reducing the amount of the judgment awarded to Olmstead Construction on its breach-of-contract claim by this amount, we revise the judgment to award Olmstead Construction $115,245.84.  II. Because Olmstead Construction failed to prove the actual costs associated with use of the equipment it owns, we affirm the district court’s refusal to award damages on this basis.  III. Otter Creek was not required to make final payment until Olmstead Construction provided the requested documentation of its costs.  Because Otter Creek did not default under the agreement, Olmstead Construction is not entitled to an award of its attorney fees under the contract, and we reverse the award of $47,787.73 in attorney fees.  IV. Because damages were not complete at any specified time before the trial and the amount remained in controversy until the Court issued its final judgment, prejudgment interest is inappropriate.  We affirm the district court’s refusal to award Olmstead Construction prejudgment interest.  V. We conditionally affirm the denial of Olmstead Construction’s petition to foreclose on its mechanic’s lien and remand for further proceedings as directed. 

Case No. 18-1244:  Holger Ernst Heinz Goebel v. Green Line Polymers, Inc.

Filed Sep 25, 2019

View Opinion No. 18-1244

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (11 pages)

            Holger Goebel appeals after the district court’s denial of his motion for a new trial following a civil jury verdict in favor of Green Line Polymers, Inc. He argues (1) the court abused its discretion in (a) allowing expert opinion testimony from a non-expert witness, (b) allowing said testimony despite its alleged irrelevance, and (c) allowing Goebel to be questioned concerning specific instances of conduct that had little to no bearing on his character for truthfulness; and (2) “a new trial should be granted where cumulative errors in the record reasonably support the request for a new trial” and “contributed to the jury’s verdict contrary to the great weight of the evidence.”  OPINION HOLDS: We affirm the district court’s denial of Goebel’s motion for a new trial in its entirety. 

Case No. 18-1305:  In the Matter of J.S., Alleged to be Seriously Mentally Impaired

Filed Sep 25, 2019

View Opinion No. 18-1305

            Appeal from the Iowa District Court for Polk County, Carla Schemmel, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Vaitheswaran, P.J.  (8 pages)

            In this consolidated appeal of two involuntary civil commitment orders, J.S. contends the district court erred in (1) failing to terminate the proceedings and dismiss the applications on receipt of a physician’s report and (2) prohibiting him from possessing firearms.  OPINION HOLDS: We affirm the district court’s dismissal of the Iowa Code chapter 229 (2018) proceeding and the district court’s order referring J.S. to outpatient treatment for his chapter 125 substance-related disorder.  We reverse the district court’s imposition of the firearm prohibition in both orders and remand for entry of an order striking those prohibitions.

Case No. 18-1320:  Todd Whitman v. Casey's General Stores, Inc. and Casey's Marketing Company

Filed Sep 25, 2019

View Opinion No. 18-1320

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED.  Heard by Potterfield, P.J., Greer, J., and Scott, S.J.  Opinion by Scott, S.J.  (11 pages)

            Todd Whitman appeals the district court’s denial of his motion for judgment notwithstanding the verdict and for a new trial following the jury verdict for Casey’s General Stores, Inc. and Casey’s Marketing Company (Casey’s).  OPINION HOLDS:  We find (1) the district court did not err in denying Whitman’s motion for judgment notwithstanding the verdict on his claim Casey’s improperly required him to take a drug test; (2) Whitman was not entitled to a new trial based on inconsistent verdicts; (3) Whitman is not entitled to a new trial based on improper jury instructions; and (4) the court did not abuse its discretion in awarding attorney fees.  We affirm the decision of the district court.

Case No. 18-1332:  In the Matter of the Guarianship and Conservatorship of Mabelle L. Raska

Filed Sep 25, 2019

View Opinion No. 18-1332

            Appeal from the Iowa District Court for Hamilton County, Timothy J. Finn, Judge.  REVERSED.  Heard by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (11 pages)

            A guardian ad litem appeals the district court’s order approving a gift from conservatorship funds.  The guardian ad litem argues the district court erred by failing to review the ward’s will to determine her testamentary intent.  The guardian ad litem further argues the gift was given without good cause to an organization that was neither a named testamentary beneficiary nor a beneficiary of lifetime donations and was not structured to maximize income-tax benefits.  OPINION HOLDS: A review of the ward’s will would have been relevant to the district court’s ultimate decision of whether good cause supported the gift but is not fatal.  On our de novo review, we find the evidence does not support a finding of good cause under Iowa Code section 633.668 (2018) to support the gift. 

Case No. 18-1405:  In the Matter of the Estate of Freeman Adams, Deceased.

Filed Sep 25, 2019

View Opinion No. 18-1405

            Appeal from the Iowa District Court for Fayette County, Margaret L. Lingreen, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (19 pages)

            A will contestant appeals the probate court’s rulings (1) dismissing the contestant’s petition in probate seeking to open an intestate estate for the decedent, (2) sustaining the petition of a beneficiary and proponent of the decedent’s 2011 will to probate the decedent’s will, and (3) sustaining the motion for a directed verdict on a claim of undue influence.  OPINION HOLDS:  Upon our review, we find the record evidence fully supports the probate court’s conclusion that the decedent was legally competent when he executed his will in 2011.  Consequently, even assuming without deciding the court should have placed the burden of proof upon the proponents of the decedent’s will to show the decedent had testamentary capacity to execute his will when it was executed, the will’s proponents met their burden.  We discern no abuse of discretion under the facts of the case concerning an expert’s testimony regarding the decedent’s competence, and we find no error in the court’s conclusion that the contestant failed to prove the decedent’s will resulted from undue influence.  Accordingly, we affirm the probate court’s rulings dismissing the contestant’s petition, sustaining a will proponent’s directed verdict as to the claim of undue influence, and sustaining another will proponent’s petition for probate of the decedent’s will.

Case No. 18-1428:  Jacqueline Geiger and Bruce Tracy v. Peoples Trust and Savings Bank, Chris Goerdt and Country Bancorporation

Filed Sep 25, 2019

View Opinion No. 18-1428

            Appeal from the Iowa District Court for Washington County, Joel D. Yates, Judge.  AFFIRMED.  Heard by Doyle, P.J., and Blane and Lloyd, S.JJ.  Opinion by Blane, S.J.  (14 pages)

            Plaintiffs appeal from the district court’s grant of defendants’ motions for summary judgment on their claims against a bank and bank president for fraudulent misrepresentation and interference with contract. OPINION HOLDS:  Since evidence of the claimed agreement is not admissible under the statute of frauds in either section 535.17 or section 622.32, no reasonable jury could be convinced the alleged agreement is enforceable, and summary judgment was appropriate.

Case No. 18-1787:  State of Iowa v. Santenio Delamike Ackiss

Filed Sep 25, 2019

View Opinion No. 18-1787

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  CONVICTIONS AFFIRMED, SENTENCE VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Vaitheswaran, P.J. (7 pages)

            Santenio Ackiss appeals his convictions of child endangerment resulting in bodily injury and child endangerment.  Ackiss contends (1) the court’s findings are not supported by substantial evidence, (2) the court impermissibly imposed court costs on charges for which he was acquitted, and (3) the court failed to make a determination of his ability to pay restitution.  OPINION HOLDS: We affirm the court’s findings of guilt and convictions for child endangerment resulting in bodily injury and child endangerment.  We vacate the sentences as to apportionment of costs and restitution and remand for further proceedings.

Case No. 18-1850:  Mark Lee Jackson v. State of Iowa

Filed Sep 25, 2019

View Opinion No. 18-1850

            Appeal from the Iowa District Court for Jasper County, Bradley McCall, Judge.  APPEAL DISMISSED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (6 pages)

            Authorities arrested Jackson on an alleged parole violation.  Pending his parole-violation hearing the district court ordered placement at a state prison instead of a county jail.  While held in prison, Jackson allegedly violated prison rules and was disciplined.  Jackson was later found in violation of his parole conditions and was sentenced to state prison.  Jackson filed an application for postconviction relief raising two claims: (1) the state violated his due process rights by improperly transferring him to a state prison and (2) the state imposed improper disciplinary sanctions while he was awaiting his parole-revocation hearing.  OPINION HOLDS: (1) Because Jackson is now sentenced to state prison, the district court’s ruling that he should be in county jail instead of prison is moot.  And because his claim only affected him, it did not qualify under the public-interest exception for this court to exercise its discretion to review the moot action.  (2) Because the proper vehicle to challenge a prison disciplinary sanction is a petition for writ of certiorari and because Jackson provides no valid ground to justify issuance of the writ, we deny review and dismiss the matter.

Case No. 18-1904:  Erick Skogman and Jennifer Skogman v. Rick Emerson and Paula Emerson

Filed Sep 25, 2019

View Opinion No. 18-1904

            Appeal from the Iowa District Court for Linn County, Mitchell E. Turner, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Potterfield, P.J., and May and Greer, JJ.  Opinion by Potterfield, P.J.  (13 pages)

            Erick and Jennifer Skogman appeal the district court’s default judgment order entered in their favor.  They argue the district court erred by (1) dismissing Paula as a defendant for all but the Skogmans’ holdover tenant claim; (2) holding the Skogmans were not entitled to damages for some of their construction costs for renovating; and (3) refusing to award punitive damages to the Skogmans.  OPINION HOLDS: The district court erred by dismissing Paula as a defendant to the Skogmans’ intentional property damage claim, but not by dismissing her from the other claims.  The district court’s damages award is supported by substantial evidence.  The district court did not abuse its discretion when it declined to award punitive damages.  Affirmed in part, reversed in part, and remanded.

Case No. 18-1911:  Adnan Sahinovic v. State of Iowa

Filed Sep 25, 2019

View Opinion No. 18-1911

            Appeal from the Iowa District Court for Polk County, Samantha Gronewald, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Mullins and Greer, JJ.  Opinion by Greer, J.  (6 pages)

                Adnan Sahinovic appeals the summary dismissal of his postconviction-relief application.  The district court dismissed the application based on the expiration of the statute of limitations.  OPINION HOLDS: Sahinovic’s conviction was final in 2011, and the district court did not err in concluding the statute of limitations had expired and his postconviction claim was time barred.  We affirm.

Case No. 18-2067:  In re the Marriage of Dalby

Filed Sep 25, 2019

View Opinion No. 18-2067

            Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.  AFFIRMED AS MODIFIED.  Considered by Potterfield, P.J., and May and Greer, JJ.  Opinion by Potterfield, P.J.  Special Concurrence by Greer, J.  (10 pages)

            Douglas Dalby appeals from the decree dissolving his marriage to Julie Dalby.  Douglas maintains the division of marital assets was inequitable and asks us to modify the equalization payment due to him from the amount of $31,331.55 to $112,770.24.  He also asks for an award of appellate attorney fees.  In response, Julie maintains the district court’s division was equitable and asks that we award her appellate attorney fees.  OPINION HOLDS: The district court’s division of marital assets was inequitable; we modify the equalization payment Julie owes to Douglas to the amount of $100,932.74.  We decline to award either party appellate attorney fees.  SPECIAL CONCURRENCE ASSERTS: I agree with modifying the decree to increase the equalization payment to Douglas, but I would then reduce the equalization payment by the full amount of the basement repair.

Case No. 19-0341:  Robert Ostwinkle v. Mathy Construction Company, d/b/a River City Paving and/or A.L.M. Holding Company and Zurich American Insurance Company

Filed Sep 25, 2019

View Opinion No. 19-0341

            Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (6 pages)

            Mathy Construction Company and Zurich American Insurance Company appeal an order to reimburse the cost of an independent medical examination in a workers’ compensation case.  OPINION HOLDS: We find the examination was reimbursable under Iowa Code section 85.39 (2017).

Case No. 19-0690:  In the Interest of L.H., J.H., C.H., and D.H., Minor Children

Filed Sep 25, 2019

View Opinion No. 19-0690

            Appeal from the Iowa District Court for Des Moines County, Emily Dean, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (7 pages)

            The mother of four children adjudicated in need of assistance appeals from a permanency review order, claiming the juvenile court erred in ordering a six-month extension and continued removal of the children.  OPINION HOLDS: Upon our de novo review, we affirm the permanency order entered by the juvenile court.

Case No. 19-0741:  In the Interest of D.P., Minor Child

Filed Sep 25, 2019

View Opinion No. 19-0741

            Appeal from the Iowa District Court for Audubon County, Amy L. Zacharias, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., Greer, J., and Mahan, S.J.  Opinion by Mahan, S.J.  Special concurrence by Potterfield, P.J.  (8 pages)

            A mother and father each appeal the juvenile court order terminating their parental rights.  OPINION HOLDS: As to the mother, we find there is clear and convincing evidence in the record to support termination of her parental rights, the State made reasonable efforts to reunite her with the child, and termination is in the child’s best interests.  For the father, we find there is sufficient evidence to warrant termination of his parental rights and the juvenile court properly declined to apply any exceptions to termination.  We affirm the decision of the juvenile court. SPECIAL CONCURRENCE ASSERTS: I agree with the majority; in this case, the incarcerated father did not explicitly raise a best-interests claim.

Case No. 19-0905:  In the Interest of N.H., Minor Child

Filed Sep 25, 2019

View Opinion No. 19-0905

            Appeal from the Iowa District Court for Linn County, Cynthia S. Finley, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (8 pages)

            A father appeals the termination of his parental rights to one child.  OPINION HOLDS: Because the father has borderline intellectual functioning and cannot demonstrate an ability to care for the child, who has significant medical and cognitive impairments, the State showed she cannot be returned to the father at the present time, satisfying the statutory grounds.  It is in the child’s best interests to terminate the father’s parental rights and free her for adoption.  There is insufficient evidence of a bond to show terminating the relationship would be detrimental to her.  Finally, there is no evidence warranting an extension of time for the father.  We affirm. 

Case No. 19-0914:  In the Interest of D.M., T.G., T.G., L.G., and T.G., Minor Children

Filed Sep 25, 2019

View Opinion No. 19-0914

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Potterfield and Greer, JJ.  Opinion by Greer, J.  (12 pages)

            A mother and father appeal the termination of their parental rights to five minor children.  OPINION HOLDS:  We conclude the State established grounds for termination, termination was in the children’s best interests, no exceptions applied to prevent termination, and the Iowa Department of Human Services made reasonable efforts to reunite the parents with the children.  We affirm.

Case No. 19-0944:  In the Interest of E.S., Minor Child

Filed Sep 25, 2019

View Opinion No. 19-0944

            Appeal from the Iowa District Court for Clarke County, Monty Franklin, District Associate Judge.  REVERSED AND REMANDED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (5 pages)

            A father appeals the termination of his parental rights.  The juvenile court found he failed to maintain significant and meaningful contact with his seven-year-old son.  OPINION HOLDS: Our de novo review reveals inadequate proof that the father failed to maintain significant and meaningful contact with the child.  The father attended almost all the offered visitations, only missing for serious medical events.  During visits he did more than just show up: he engaged with his son, provided meals, clothing, and gifts, and had positive conversations.  He also completed substance-abuse treatment, showing a genuine effort to complete the responsibilities prescribed in the case permanency plan.  The State failed to prove the ground for termination, so we reverse the order and remand for further proceedings. 

Case No. 19-0962:  In the Interest of G.P. and R.P., Minor Children

Filed Sep 25, 2019

View Opinion No. 19-0962

            Appeal from the Iowa District Court for Montgomery County, Amy Zacharias, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (3 pages)

            A father appeals the termination of his parental rights under Iowa Code section 232.116(1)(e) and (f) (2019).  OPINION HOLDS:  We affirm the termination of the father’s parental rights. 

Case No. 19-1034:  In the Interest of L.L., Minor Child

Filed Sep 25, 2019

View Opinion No. 19-1034

            Appeal from the Iowa District Court for Delaware County, Thomas J. Straka, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (7 pages)

            A mother appeals the juvenile court order terminating her parental rights.  OPINION HOLDS: The mother waived her due process claim by not citing any authority in support of her argument.  We find the State engaged in reasonable efforts to reunite the mother with the child.  The juvenile court properly denied the mother’s requests to place the child in a guardianship and for an extension of time.  We affirm the decision of the juvenile court.

Case No. 19-1053:  In the Interest of D.D., Minor Child

Filed Sep 25, 2019

View Opinion No. 19-1053

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Scott, S.J.  Opinion by Scott, S.J.  (5 pages)

            A mother appeals the juvenile court order terminating her parental rights.  OPINION HOLDS: We find the juvenile court properly denied the mother’s request to extend the case for an additional six months.  We also find termination of the mother’s parental rights is in the child’s best interests.  We affirm the decision of the juvenile court.

Case No. 19-1116:  In the Interest of L.R., Minor Child

Filed Sep 25, 2019

View Opinion No. 19-1116

            Appeal from the Iowa District Court for Black Hawk County, Daniel L. Block, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., and May and Greer, JJ.  Opinion by Potterfield, P.J.  (6 pages)

            The father appeals the termination of his parental rights to his nine-year-old son.  The juvenile court terminated the father’s rights pursuant to Iowa Code section 232.116(1)(d), (e), and (f) (2018).  The father challenges the statutory grounds for termination, maintains the juvenile court should have applied a permissive factor to avoid termination, and argues an extension of time to work toward reunification is in the child’s best interests.  OPINION HOLDS: For all the reasons listed herein, we affirm the termination of the father’s parental rights.

Case No. 19-1117:  In the Interest of A.S., K.B., and A.B., Minor Childen

Filed Sep 25, 2019

View Opinion No. 19-1117

            Appeal from the Iowa District Court for Linn County, Cynthia S. Finley, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., Greer, J., and Scott, S.J.  Opinion by Scott, S.J.  (7 pages)

            Parents separately appeal the termination of their parental rights to their respective children.  Both parents challenge the sufficiency of the evidence supporting the statutory ground for termination cited by the juvenile court and argue termination is not in the children’s best interests due to the closeness of the parent-child bonds.  OPINION HOLDS: We affirm the termination of both parents’ parental rights.

Case No. 19-1130:  In the Interest of D.S. and X.L., Minor Children

Filed Sep 25, 2019

View Opinion No. 19-1130

            Appeal from the Iowa District Court for Polk County, Kimberly Ayotte, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            A mother and father separately appeal the juvenile court decision terminating their parental rights.  OPINION HOLDS: Statutory grounds for termination of parental rights exist as to each parent, an extension is unwarranted, and termination is in the children’s best interests.  We affirm on both appeals.

Case No. 19-1158:  In the Interest of F.K. and F.K., Minor Children

Filed Sep 25, 2019

View Opinion No. 19-1158

            Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Mullins and Greer, JJ.  Opinion by Potterfield, P.J.  (9 pages)

            A mother appeals the juvenile court order terminating her parental rights to her two minor children, F.K. and F.K.  The juvenile court terminated her parental rights under Iowa Code section 232.116(1)(e), (h), and (k) (2019).  The mother disputes aspects of each of the statutory grounds, and argues termination is not in the children’s best interest and she should have been given a six-month extension to work toward reunification.  OPINION HOLDS: The State met its burden to terminate the mother’s parental rights under Iowa Code section 232.116(1)(h).  Termination is in the children’s best interest.  A six-month extension is not warranted. 

Case No. 19-1208:  In the Interest of J.B., L.B., C.B., and C.B., Minor Children

Filed Sep 25, 2019

View Opinion No. 19-1208

            Appeal from the Iowa District Court for Appanoose County, William S. Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (6 pages)

            A father appeals the juvenile court order terminating his parental rights.  OPINION HOLDS:  We find there is clear and convincing evidence in the record to support termination of the father’s parental rights.  An extension of time would not be in the children’s best interests.  The State engaged in reasonable efforts to reunite the father with the children.  Termination of the father’s parental rights is in the children’s best interests.  We affirm the decision of the juvenile court.

Case No. 19-1215:  In the Interest of O.O., Minor Child

Filed Sep 25, 2019

View Opinion No. 19-1215

            Appeal from the Iowa District Court for Woodbury County, Stephanie Forker Parry, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (6 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: Clear and convincing evidence shows the mother failed to maintain significant and meaningful contact with the child in the six months leading up to termination or make reasonable efforts to resume care for the child despite being given the opportunity to do so.  We therefore affirm the termination of the mother’s parental rights under Iowa Code section 232.116(1)(e) (2019).  We find termination is in the child’s best interests for the same reasons, and we decline to grant the mother additional time to reunite with the child.

Case No. 19-1246:  In the Interest of J.N., Minor Child

Filed Sep 25, 2019

View Opinion No. 19-1246

            Appeal from the Iowa District court for Johnson County, Jason A. Burns, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J. (7 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: Upon our de novo review of the record, we agree with the juvenile court that the State established by clear and convincing evidence the ground for termination set forth in Iowa Code section 232.116(1)(h) (2019).  The record evidences that termination of the mother’s parental rights is in the child’s bests interests, and no facts in the record show a six-month delay would lead to safe reunification.  So we affirm the juvenile court’s ruling terminating the mother’s parental rights.

Case No. 19-1265:  In the Interest of C.H., Minor Child

Filed Sep 25, 2019

View Opinion No. 19-1265

            Appeal from the Iowa District Court for Scott County, Korie Shippee, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (5 pages)

            A mother appeals the order terminating her parental rights, contesting two of the three grounds the juvenile court found warranted termination.  OPINION HOLDS: The mother does not dispute the juvenile court’s ruling that termination was supported under Iowa Code section 232.116(1)(l) (2019), and we affirm on that ground.  

Case No. 19-1271:  In the Interest of A.K. and O.S., Minor Children

Filed Sep 25, 2019

View Opinion No. 19-1271

            Appeal from the Iowa District Court for Scott County, Korie Shippee, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (11 pages)

            Gary and Ashley separately appeal from the termination of their parental rights to two children.  Gary contends the State did not prove the grounds to terminate.  He also argues the State failed to make reasonable efforts to reunite him with the children by providing adequate visitation.  Ashley does not challenge the statutory grounds for termination.  Instead, she argues the State did not make reasonable efforts in considering her sister as a potential guardian and for the children’s placement.  She also argues the court was not acting in the children’s best interests in appointing Department of Human Services (DHS) as the custodian and guardian and severing her parental relationship despite her close relationship with the children.  OPINION HOLDS:  We conclude termination of the parents’ rights is in the children’s best interests.  As is guardianship with the DHS for the purpose of permanency through adoption.  We further find the DHS acted reasonably in the efforts it made to support the parents’ attempts to reunify with the children.  We affirm as to both appeals.

Case No. 18-0662:  Puryear Law P.C. and Eric D. Puryear v. Dirk J. Fisher and Jessica Harbaugh

Filed Sep 11, 2019

View Opinion No. 18-0662

            Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.  AFFIRMED.  Considered by Doyle, P.J., May, J., and Mahan, S.J.  Tabor, J., takes no part.  Opinion by Mahan, S.J.  (12 pages)

            Puryear Law P.C. and Eric Puryear appeal the district court’s dismissal of a defamation action against Dirk Fishback and Jessica Harbaugh, contending the district court erred in granting a motion for directed verdict.  OPINION HOLDS: Upon our review, we affirm.  

Case No. 18-0841:  Vernon L. Hilkemann and Mary E. Hilkemann v. City of Carter Lake City Council, City of Carter Lake Board of Adjustment, City of Carter Lake Planning Board, and Lakeside Auto Recyclers Inc.

Filed Sep 11, 2019

View Opinion No. 18-0841

            Appeal from the Iowa District Court for Pottawattamie County, Kathleen A. Kilnoski, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Bower, J.  (8 pages)

            Vernon and Mary Hilkemann appeal a district court ruling relating to zoning decisions by the City of Carter Lake City Council, Planning Board, and Board of Adjustment.  The Hilkemanns contest the district court’s finding the relation-back doctrine did not apply and the court’s authority to remand annulled variances to the board of adjustment for further proceedings.  OPINION HOLDS: We find the relation-back doctrine does not apply here and the court has the authority to order a remand for further proceedings. 

Case No. 18-0852:  Atiba Spellman v. State of Iowa

Filed Sep 11, 2019

View Opinion No. 18-0852

            Appeal from the Iowa District Court for Story County, Timothy J. Finn, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (9 pages)

            Atiba Spellman appeals the order dismissing his action for postconviction relief (PCR) as a discovery sanction.  OPINION HOLDS:  The reasoning supporting dismissal of Spellman’s PCR action is flawed.  First, the PCR court overlooked that Spellman amended his PCR application to provide the desired specificity for his PCR claims before the hearing on discovery sanctions.  Second, we disagree that Spellman’s failure to provide discovery answers impeded the State’s ability to move for summary judgment.  Third, Spellman did provide interrogatory answers within the deadline set forth in the court’s order compelling him to answer, and it is more likely that his failure to provide more specific answers or documents results from inability rather than willful refusal.  Finally, the circumstances here are less egregious than in cases where the courts upheld dismissal as a discovery sanction.  Given these circumstances, we find the PCR court abused its discretion in dismissing Spellman’s PCR application as a discovery sanction.  For these reasons, we reverse and remand for further proceedings. 

Case No. 18-0854:  In re the Detention of Andrew Henry Martin

Filed Sep 11, 2019

View Opinion No. 18-0854

             Appeal from the Iowa District Court for Cerro Gordo County, DeDra L. Schroeder, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (9 pages)

            Andrew Martin appeals a district court order adjudicating him a sexually violent predator and committing him to the custody of the department of human services for control.  OPINION HOLDS: Because the district court’s findings are supported by substantial evidence, we affirm the order adjudicating Martin a sexually violent offender and ordering his civil commitment.

Case No. 18-0967:  Richard Joseph Ehler v. State of Iowa

Filed Sep 11, 2019

View Opinion No. 18-0967

            Appeal from the Iowa District Court for Warren County, Thomas P. Murphy, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Tabor, J.  (21 pages)

            Richard Ehler appeals the district court’s denial of his application for postconviction relief, arguing counsel was ineffective for failing to adequately research the viability of his speedy-trial claim.  OPINION HOLDS: Plea counsel breached a duty by failing to understand the applicable speedy-trial standard.  And because counsel’s failure influenced Ehler’s decision to plead guilty, it resulted in prejudice to Ehler.  We remand the case to the district court with instructions to grant Ehler’s PCR application, vacate the guilty plea, and dismiss the trial information.

Case No. 18-1097:  State of Iowa v. Komut Mai

Filed Sep 11, 2019

View Opinion No. 18-1097

            Appeal from the Iowa District Court for Polk County, Carla Schemmel, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (5 pages)

            Komut Mai appeals from judgment and sentence following the denial of his motion to suppress and trial on the minutes of testimony.  Mai maintains the officer did not have reasonable suspicion to stop the vehicle in which he was a passenger.  OPINION HOLDS: Because we find the officer did not have a reasonable, articulable suspicion to stop the vehicle, we reverse the denial of Mai’s motion to suppress and remand for further proceedings.

Case No. 18-1198:  Melissa Sadler, Individually, and as Parent and Next Friend of S.S., A.S., Z.S., and I.S., Minor Children v. Polly Primus and Pathways Behavioral Services, Inc.

Filed Sep 11, 2019

View Opinion No. 18-1198

            Appeal from the Iowa District Court for Butler County, Linda M. Fangman, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J, and Vogel, S.J.  Opinion by Mullins, J.  (8 pages)

            Melissa Sadler appeals an adverse summary judgment ruling and dismissal of her civil suit.  She argues the court (1) improperly failed to allow her fifteen days to respond to the defendants’ motion for summary judgment, (2) lacked jurisdiction to entertain the motion when an appeal was pending, (3) abused its discretion in denying her motion to extend expert-witness deadlines, and (4) erred by dismissing the lawsuit when an appeal was pending concerning the propriety of a motion to dismiss granted in favor of other defendants.  OPINION HOLDS: We affirm the outcome of the district court proceedings.

Case No. 18-1268:  State of Iowa v. Christopher James Thomas

Filed Sep 11, 2019

View Opinion No. 18-1268

            Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (4 pages)

            Christopher Thomas contends insufficient evidence supports his conviction for violating the sex offender registry requirements.  OPINION HOLDS: Sufficient evidence supports the conviction.  We affirm.

Case No. 18-1286:  State of Iowa v. Martin Ray Hiatt

Filed Sep 11, 2019

View Opinion No. 18-1286

            Appeal from the Iowa District Court for Pottawattamie County, Gregory W. Steensland, Judge.  REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.  Considered by Vaitheswaran, P.J., and Potterfield and Greer, JJ.  Opinion by Potterfield, J.  (3 pages)

            Martin Hiatt appeals from the district court’s denial of his motion to quash.  Hiatt claimed the Iowa Department of Corrections (IDOC) was seizing funds from his prison account that came from outside sources without providing Hiatt a predeprivation hearing before doing so.  OPINION HOLDS: Because we are unable to ascertain on the record before us whether Hiatt was given notice or the opportunity to object before IDOC began collecting restitution from his prison funds from outside sources, we reverse the district court’s denial and remand for further proceedings. 

Case No. 18-1306:  Dean Thorson v. Thomas Hansen and Jeanett Hansen

Filed Sep 11, 2019

View Opinion No. 18-1306

            Appeal from the Iowa District Court for Winneshiek County, Linda M. Fangman, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Bower, J.  (11 pages)

            Thomas and Jeanett Hansen appeal a trial court order finding in favor of Dean Thorson in a conversion and breach-of-contract action relating to a hay crop and farm-rental agreement.  The Hansens claim the trial court erred in denying their motion for new trial because Thorson made knowing material misrepresentations during trial that prejudiced the Hansens and the court erred in law and made a mistake of fact as to the date of conversion.  OPINION HOLDS: We find the court did not abuse its discretion in denying the motion for new trial and did not make an error of law or mistake of fact.  We affirm.

Case No. 18-1370:  Eddie Adams v. State of Iowa

Filed Sep 11, 2019

View Opinion No. 18-1370

            Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (7 pages)

            Eddie Adams appeals from an order denying him postconviction relief.  OPINION HOLDS: Adams has not shown his trial counsel was ineffective for failing to have his DNA expert independently test the evidence when he never claimed additional testing would have changed the outcome of trial and the record does not support his claim of spoliation.  Nor has Adams shown his PCR counsel was ineffective by failing to move for an expanded ruling on the legality of an Allen charge when the record does not show the court gave the jury an Allen instruction. 

Case No. 18-1499:  In the Matter of the Guardianship and Conservatorship of Sylvia Chott

Filed Sep 11, 2019

View Opinion No. 18-1499

            Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Mullins, JJ.  Opinion by Potterfield, P.J.  (11 pages)

            Katherine Myer appeals the district court ruling finding she violated her obligations to her mother Sylvia Chott as her mother’s power of attorney by withdrawing funds from the mother’s bank account and ordering her to return the money and pay attorney fees and court costs.  Katherine argues the district court erred by evaluating her conduct under Iowa Code chapter 633B (2017), by finding she had not met her burden to prove she acted in good faith and Sylvia had acted freely, voluntarily, and intelligently when she transferred the money to Katherine, and by awarding Sylvia attorney fees.  Additionally, she requests appellate attorney fees.  OPINION HOLDS: The district court correctly evaluated Katherine’s conduct under chapter 633B.  The district court correctly determined Katherine had not met her burden of proof.  We affirm the award of trial attorney fees and award appellate attorney fees to Sylvia.  We affirm.

Case No. 18-1554:  Cindy Christine Hebron v. State of Iowa

Filed Sep 11, 2019

View Opinion No. 18-1554

            Appeal from the Iowa District Court for Polk County, Samantha Gronewald, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (9 pages)

            Cindy Hebron seeks reversal of the district court’s ruling denying her application for postconviction relief.  Hebron claims her due process rights have been violated, her right to a speedy trial was violated, and she received ineffective assistance of counsel.  OPINION HOLDS: We find Hebron has failed to prove any due process violation or ineffective assistance of counsel, and she waived her right to a speedy trial.  We affirm the district court’s denial of Hebron’s application for postconviction relief.

Case No. 18-1586:  Carl Julius Bennett v. State of Iowa

Filed Sep 11, 2019

View Opinion No. 18-1586

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Greer, JJ.  Opinion by Greer, J.  (11 pages)

            Carl Bennett appeals the denial of his application for postconviction relief, arguing he is innocent and that his trial counsel was ineffective.  OPINION HOLDS: After reviewing the record, we agree with the district court that there is overwhelming evidence of Bennett’s guilt and that he did not prove his attorney was ineffective.  We affirm.

Case No. 18-1605:  In re the Marriage of Griffith

Filed Sep 11, 2019

View Opinion No. 18-1605

            Appeal from the Iowa District Court for Emmet County, Don E. Courtney, Judge.  AFFIRMED.  Considered by Mullins, P.J., and Bower and May, JJ.  Opinion by Bower, J.  (5 pages)

            Scott Griffith appeals from the decree dissolving his marriage to Joyce Griffith.  Scott argues the district court erred in failing to order continued conciliation efforts, in finding Joyce was capable of establishing the breakdown of the marriage, and in refusing to grant Scott’s motion to compel discovery of mental health records.  OPINION HOLDS: The trial court did not abuse its discretion in not requiring continued conciliation efforts or in denying the motion to compel discovery of Joyce’s medical records.  Joyce has established the requisite breakdown of the marital relationship, and we affirm.

Case No. 18-1612:  Benaiah Mablin v. State of Iowa

Filed Sep 11, 2019

View Opinion No. 18-1612

            Appeal from the Iowa District Court for Clinton County, John D. Telleen, Judge.  REVERSED AND REMANDED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Bower, J.  (25 pages)

            The State seeks reversal of the district court’s ruling granting postconviction relief (PCR) to Benaiah Mablin on the ground the court failed to properly analyze the ineffective-assistance-of-counsel claims.  OPINION HOLDS: Because we conclude Mablin has failed to prove the requisite prejudice, we reverse the district court and remand for dismissal of the PCR application. 

Case No. 18-1625:  Daniel Louis Hicks v. State of Iowa

Filed Sep 11, 2019

View Opinion No. 18-1625

            Appeal from the Iowa District Court for Dallas County, Brad McCall, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (9 pages)

            Daniel Hicks appeals the denial of his application for postconviction relief, asserting trial and appellate counsel were ineffective in failing to consult or retain a child-sexual-abuse expert, permitting witnesses to vouch for the child’s credibility, and failing to challenge prejudicial testimony and out-of-court statements.  OPINION HOLDS: Because Hicks failed prove that but for trial and appellate counsel’s asserted deficiencies in performance there is a reasonable probability that the result of the proceeding would have been different, we affirm the denial of his application for postconviction relief. 

Case No. 18-1646:  In re the Marriage of Fisher

Filed Sep 11, 2019

View Opinion No. 18-1646

            Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Mullins and Greer, JJ.  Gamble, S.J., takes no part.  Opinion by Potterfield, P.J.  (5 pages)

            Christopher Fisher appeals the district court order dismissing his contempt application.  He argues the district court erred by finding he had not met his burden to prove his former spouse Karen Fisher had willfully violated the prior custody order concerning their minor child by sending the child on a trip over Christopher’s objection.  OPINION HOLDS: The district court did not abuse its discretion.  We affirm.

Case No. 18-1653:  City of Davenport v. Lynn Washburn-Livingston

Filed Sep 11, 2019

View Opinion No. 18-1653

            Appeal from the Iowa District Court for Scott County, Stuart Werling, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Bower, J.  (6 pages)

            Lynn Washburn-Livingston  seeks reversal of the district court’s finding the Davenport Civil Service Commission did not have jurisdiction to grant her continued employment with the Davenport Fire Department.  OPINION HOLDS: We find her prior Illinois status did not transfer to Iowa civil service status and affirm the district court.

Case No. 18-1662:  State of Iowa v. Kamie Jo Schiebout

Filed Sep 11, 2019

View Opinion No. 18-1662

            Appeal from the Iowa District Court for Sioux County, Patrick H. Tott, Judge.  AFFIRMED IN PART, SENTENCE VACATED AND REMANDED FOR RESENTENCING.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J. (8 pages)

            Kamie Jo Schiebout appeals from her conviction and sentence for felony possession of methamphetamine as an habitual offender.  She challenges the district court’s suppression ruling and her sentence.  OPINION HOLDS: (1) The seizure of Schiebout’s purse was a permissible seizure incident to arrest.  So the district court was correct in denying Schiebout’s motion to suppress.  (2) Federal drug convictions do not count as prior convictions for purposes of Iowa Code section 124.401(5) (2017).  Because Schiebout has only one relevant prior conviction, her current offense should be treated as an aggravated misdemeanor, not a felony.  We vacate Schiebout’s sentence and remand for resentencing.

Case No. 18-1805:  Jaramya William Campbell v. State of Iowa

Filed Sep 11, 2019

View Opinion No. 18-1805

            Appeal from the Iowa District Court for Marshall County, John J. Haney, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (10 pages)

            Jaramya Campbell appeals the denial of his application for postconviction relief (PCR).  OPINION HOLDS: Because we agree that the underlying sentence for one of Campbell’s criminal convictions illegally ordered that he serve a 45-day term in jail rather than in the custody of the Iowa Department of Corrections, we reverse the PCR court’s ruling denying his application for PCR with respect to that sentence, and we remand with instructions.  We affirm the PCR court’s ruling in all other respects.

Case No. 18-1860:  In re the Marriage of Olson

Filed Sep 11, 2019

View Opinion No. 18-1860

            Appeal from the Iowa District Court for Marion County, Terry R. Rickers, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Bower, J.  (6 pages)

            Michael Olson appeals the district court order requiring him to pay temporary child support, spousal support, and attorney fees to Erika Olson.  OPINION HOLDS: We find the district court order for support was equitable and the court did not abuse its discretion in ordering temporary attorney fees.  We award appellate attorney fees to Erika.

Case No. 18-1877:  State of Iowa v. Dairramey Moore

Filed Sep 11, 2019

View Opinion No. 18-1877

            Appeal from the Iowa District Court for Clinton County, Patrick A. McElyea and Mary E. Howes, Judges.  CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J. (12 pages)

            Dairramey Moore appeals his convictions of intimidation with a dangerous weapon with intent and reckless use of a firearm.  Moore argues (1) the evidence was insufficient to support his convictions; (2) the court failed to exercise its discretion in imposing sentence; and (3) the district court improperly ordered him to pay attorney fees, court costs, and correctional fees as restitution without first determining his reasonable ability to pay the same.  OPINION HOLDS: We affirm Moore’s convictions and the sentence imposed on count one.  We vacate the restitution provisions of the sentencing order and remand the matter to the district court for receipt of a final restitution plan and a determination of Moore’s reasonable ability to pay.

Case No. 18-1888:  State of Iowa v. Joseph W. White

Filed Sep 11, 2019

View Opinion No. 18-1888

            Appeal from the Iowa District Court for Warren County, Kevin Parker, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (5 pages)

            Joseph White appeals the denial of his motion to suppress the evidence obtained following the warrantless stop of his vehicle.  OPINION HOLDS: Because the trooper had reasonable suspicion of an inoperative headlamp to stop the vehicle, we affirm.

Case No. 18-1929:  In re the Marriage of Tribolet

Filed Sep 11, 2019

View Opinion No. 18-1929

            Appeal from the Iowa District Court for Taylor County, Patrick W. Greenwood, Judge.  AFFIRMED AND REMANDED.  Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (14 pages)

            A former wife, Lisa, appeals the district court’s grant of the former husband, Jonathan’s, petition to modify the custody provisions of their dissolution decree.  The district court order split care, giving Lisa physical care of their older son and Jonathan physical care of the younger son.  Lisa challenges this arrangement and argues both children would do better in her physical care.  OPINION HOLDS:  The court’s modification is in the best interests of the children.  There are strong and compelling reasons here to split custody between both parents.  We affirm the physical care order but remand for the district court to enter an order on appellate attorney fees for Jonathan. 

Case No. 18-1955:  Jason Batterman v. Amanda Biggs

Filed Sep 11, 2019

View Opinion No. 18-1955

            Appeal from the Iowa District Court for Pottawattamie County, Gregory W. Steensland, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (4 pages)

            Jason Batterman appeals from the district court’s refusal to modify the physical-care placement of his child.  He also challenges the district court’s award of attorney fees to the child’s mother.  OPINION HOLDS: Jason did not demonstrate he could provide the child with superior care.  Accordingly, the district court properly refused to modify the child’s physical-care placement.

Case No. 18-1999:  State of Iowa v. Brenna Folkers

Filed Sep 11, 2019

View Opinion No. 18-1999

            Appeal from the Iowa District Court for Black Hawk County, Brook K. Jacobsen, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Greer, JJ.  Opinion by Potterfield, P.J. (3 pages)

           

            Brenna Folkers challenges the sufficiency of the evidence supporting her conviction of child endangerment following a trial to the bench.  She maintains the State did not establish she knowingly acted in a manner that created a substantial risk to her son’s physical, mental, or emotional health or safety.  OPINION HOLDS: Because keeping marijuana and hash oil in the home where a toddler can access it creates a substantial risk to the child’s safety, substantial evidence supports Folkers’s conviction.  We affirm. 

Case No. 18-2000:  State of Iowa v. Eugene Harris

Filed Sep 11, 2019

View Opinion No. 18-2000

            Appeal from the Iowa District Court for Scott County, Thomas G. Reidel and Henry W. Latham II, Judges.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (3 pages)

            Eugene Harris appeals his conviction for neglect of a dependent person.  OPINION HOLDS: When viewed in the light most favorable to the State, substantial evidence supports a finding that Harris was a person having custody of a dependent person.  Because substantial evidence supports Harris’s conviction, we affirm.

Case No. 18-2017:  Michael Hecht v. Highline Construction, Inc. and Western National Insurance Company

Filed Sep 11, 2019

View Opinion No. 18-2017

            Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Bower, JJ.  Opinion by Potterfield, P.J.  (8 pages)

            Michael Hecht appeals from the district court’s ruling on judicial review affirming the Workers’ Compensation Commissioner’s denial of permanency and penalty benefits.  Hecht maintains the commissioner erred when he granted the defendants’ untimely application to submit additional evidence.  He argues his substantial rights were prejudiced when the commissioner then relied on the late-submitted evidence to modify the deputy commissioner’s ruling of 30% industrial disability and the assessment of penalty benefits to an award of no permanency or penalty benefits.  OPINION HOLDS: We agree with the district court; the commissioner did not err in determining the twenty-day deadline of Iowa Administrative Code rule 876-4.28 could be extended upon a showing of good cause and did not abuse his discretion in finding Highline established good cause for the delay in these circumstances.  We affirm.

Case No. 18-2154:  In re the Marriage of Saluri

Filed Sep 11, 2019

View Opinion No. 18-2154

            Appeal from the Iowa District Court for Polk County, Samantha Gronewald, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (6 pages)

            James Saluri appeals the district court’s ruling on a postsecondary education subsidy.  OPINION HOLDS: We find the district court correctly found good cause for the subsidy and properly applied the statutory three-step process to calculate James’s share of the subsidy.  The court did not abuse its discretion in awarding Sandra Saluri attorney fees.  We affirm.

Case No. 18-2182:  A-Tec Recycling, Inc. and EMCASCO Insurance Company v. Charles E. Wood

Filed Sep 11, 2019

View Opinion No. 18-2182

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

            An employer and its workers’ compensation carrier appeal from the district court ruling on judicial review affirming the agency’s award of permanent partial disability benefits to an employee.  OPINION HOLDS: Because substantial evidence supports the agency’s determination that a work injury caused a permanent partial disability to the employee, we affirm.

Case No. 18-2220:  In re Marriage of Palmer

Filed Sep 11, 2019

View Opinion No. 18-2220

            Appeal from the Iowa District Court for Mills County, Timothy O'Grady, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (4 pages)

            Steve Palmer appeals from a decree dissolving his marriage to Debra Palmer.  He claims the district court did not award him enough spousal support.  OPINION HOLDS: We afford the district court considerable latitude in determining spousal support.  Here, the district court’s award fits well with Steve and Debra’s relative needs and resources.  The district court did not fail to do equity.  We affirm.  And we assess costs of this appeal to Steve.

Case No. 19-0007:  In the Matter of the Guardianship and Conservatorship of Robert Hites, Jr.

Filed Sep 11, 2019

View Opinion No. 19-0007

            Appeal from the Iowa District Court for Story County, Bethany J. Currie, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Blane, S.J.  Opinion by Blane, S.J.  (6 pages)

            A ward appeals from the district court’s appointment of his parents as co-guardians and co-conservators.  He argues there was insufficient evidence to establish the need for a guardianship or conservatorship.  In the alternative, he argues the court should have established a limited guardianship.  OPINION HOLDS: The ward’s untreated acute paranoid schizophrenia, refusal to acknowledge his mental illness, and refusal to take medication show his decision-making is impaired enough to warrant guardianship and conservatorship.  A limited guardianship is not appropriate here because of the severity of the illness and the ward’s lack of rational engagement with his mental-health condition.  We find no error in the court’s order appointing the parents as guardians and conservators. 

Case No. 19-0094:  Gary Dickey Jr. v. Iowa Ethics and Campaign Disclosure Board

Filed Sep 11, 2019

View Opinion No. 19-0094

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (6 pages)

            Gary Dickey Jr. appeals from the dismissal of his petition for judicial review by which he sought to challenge a decision of the Iowa Ethics and Campaign Disclosure Board.  OPINION HOLDS: Because we agree with the district court that Dickey has not demonstrated “a specific and injurious effect” such that he may obtain judicial review of the Board’s ruling under Iowa Code section 17A.19(1), we affirm.

Case No. 19-0238:  Joshua Paul Thomsen v. Makinzie Rose Nelson

Filed Sep 11, 2019

View Opinion No. 19-0238

            Appeal from the Iowa District Court for Crawford County, Tod Deck, Judge.  AFFIRMED AS MODIFIED ON APPEAL; AFFIRMED ON CROSS-APPEAL.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (10 pages)

            Joshua Thomsen appeals and MaKinzie Nelson cross-appeals the district court’s custody decree.  OPINION HOLDS: We find the district court properly determined joint physical care was inappropriate.  We also find the district court properly awarded physical care to MaKinzie.  While we generally agree with the district court’s visitation schedule, we modify the holiday schedule to permit the child to share holidays with Joshua’s girlfriend’s children.  Finally, we decline to grant appellate attorney fees to either party.

Case No. 19-0268:  In the Matter of the Guardianship and Conservatorship of Sylvia M. Olson

Filed Sep 11, 2019

View Opinion No. 19-0268

            Appeal from the Iowa District Court for Woodbury County, Zachary Hindman, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (8 pages)

            Richard Magnuson appeals the ruling of the district court approving the guardian and conservator’s annual report and application for authorization to expend conservatorship funds for caregivers.  OPINION HOLDS: Upon our de novo review of the record, we dismiss two of Magnuson’s three claims on appeal as moot.  And we find Magnuson’s last claim that the care provided to the ward was “contrary to [the ward’s] prior orders” to lack merit, and we agree with the district court that the guardian and conservator did not breach her fiduciary duties.  Thus, we affirm the court’s rulings in all respects and dismiss the two claims as moot.

Case No. 19-0310:  Steven J. Bell, Jr. v. 3E, a/k/a Electrical & Engineering Co., and Travelers Indemnity Co. of CT.

Filed Sep 11, 2019

View Opinion No. 19-0310

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., Greer, J., and Carr, S.J.  Opinion by Carr, S.J.  (7 pages)

            3E, also known as Electrical & Engineering Company, and Travelers Indemnity Company appeal the district court’s decision denying their motion to dismiss Steven Bell Jr.’s petition for judicial review on the ground Bell failed to timely serve notice of the petition.  OPINION HOLDS:  We determine the district court erred by denying the motion to dismiss, as Bell did not substantially comply with the requirements for service of notice found in Iowa Code section 17A.19(2) (2018).  We reverse the decision of the district court and remand for an order dismissing the petition for judicial review.

Case No. 19-0478:  In re the Marriage of Dore

Filed Sep 11, 2019

View Opinion No. 19-0478

            Appeal from the Iowa District Court for Scott County, Patrick A. McElyea, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (9 pages)

            A father appeals from the denial of his petition for modification of a dissolution-of-marriage decree.  OPINION HOLDS: We affirm the denial of the father’s modification petition. 

Case No. 19-0846:  In the Interest of A.S. and M.S., Minor Children

Filed Sep 11, 2019

View Opinion No. 19-0846

            Appeal from the Iowa District Court for Story County, Stephen A. Owen, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Mullins and Greer, JJ.  Opinion by Greer, J.  (9 pages)

            A mother appeals the termination of her parental rights to two of her minor children.  OPINION HOLDS: The State has proved grounds for termination by clear and convincing evidence, termination is in the children’s best interests, and no statutory exception exists to prevent termination.  We affirm.

Case No. 19-0870:  In the Interest of B.P., Minor Child

Filed Sep 11, 2019

View Opinion No. 19-0870

            Appeal from the Iowa District Court for Polk County, Romonda Belcher, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Greer, JJ.  Opinion by Greer, J.  (4 pages)

            A father appeals the termination of his parental rights to his minor child.  OPINION HOLDS: The father does not challenge the statutory grounds for termination under Iowa Code section 232.116(1)(b) (2018), which does not require reasonable efforts toward reunification.  Regardless, the father failed to demand additional efforts and waived the issue on appeal.  We affirm the juvenile court’s termination of the father’s parental rights.

Case No. 19-0901:  In the Interest of N.R., Minor Child

Filed Sep 11, 2019

View Opinion No. 19-0901

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            A mother appeals the juvenile court order terminating her parental rights.  She claims the child could have been returned to her care at the time of the hearing and, alternatively, requests an additional six months to reunite with the child.  OPINION HOLDS: We affirm.

Case No. 19-0941:  In the Interest of R.M., E.M., K.M., C.M., E.M., and L.M., Minor Children

Filed Sep 11, 2019

View Opinion No. 19-0941

            Appeal from the Iowa District Court for Cass County, Amy Zacharias, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (7 pages)

            A mother appeals the termination of her parental rights to her children.  OPINION HOLDS: I. Clear and convincing evidence supports a finding that returning the children to the mother’s care would expose them to the type of harm that would lead to a child-in-need-of-assistance adjudication, and we affirm the termination of the mother’s parental rights under section 232.116(1)(f) and (h) (2018).  II. The State made reasonable efforts to return the children to the mother’s care.  III. Termination is in the children’s best interests.  IV. We decline to apply one of the exceptions to the termination statute to avoid termination and affirm the termination of the mother’s parental rights.

Case No. 19-0990:  In the Interest of C.M. and D.M., Minor Children

Filed Sep 11, 2019

View Opinion No. 19-0990

            Appeal from the Iowa District Court for Johnson County, Deborah Farmer Minot, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (6 pages)

            A mother appeals the juvenile court’s termination of her parental rights.  OPINION HOLDS: We conclude termination was appropriate under Iowa law and consistent with the children’s best interests.

Case No. 19-1003:  In the Interest of W.H. and G.H., Minor Children

Filed Sep 11, 2019

View Opinion No. 19-1003

            Appeal from the Iowa District Court for Story County, Stephen A. Owen, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  Special concurrence by Tabor, P.J.  (9 pages)

            A father appeals the juvenile court’s termination of his parental rights.  OPINION HOLDS: We conclude termination was appropriate under Iowa law and was in the children’s best interests.  We affirm.  SPECIAL CONCURRENCE ASSERTS: Although I agree the evidence supports termination, I write separately to emphasize the role courts play in overseeing the State’s reasonable efforts to reunify families.  Scholars have persuasively argued such efforts require culturally competent services.  African-American children are disproportionately overrepresented in child welfare and foster care systems, and courts can take greater consideration of ethnic and cultural contacts in considering the child’s best interests.  But I agree the father’s appeal issues do not put that question squarely before us. 

Case No. 19-1016:  In the Interest of J.K., Minor Child

Filed Sep 11, 2019

View Opinion No. 19-1016

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., Potterfield, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (5 pages)

            A mother and a father separately appeal the termination of their parental rights to their child, J.K.  OPINION HOLDS: Inasmuch as grounds for termination exist and permanency is in the child’s best interests, we affirm the termination of both parents’ parental rights.

Case No. 19-1033:  In the Interest of I.T., Minor Child

Filed Sep 11, 2019

View Opinion No. 19-1033

            Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Carr, S.J.  Opinion by Carr, S.J.  (6 pages)

            A mother appeals the termination of her parental rights to her child.  OPINION HOLDS: I. Clear and convincing evidence establishes the elements for termination under Iowa Code section 232.116(1)(h) (2018) because the mother’s substance use remained a concern at the time of the termination hearing.  II. Because the mother cannot provide the child with the permanency or care the child needs, termination is in the child’s best interests.  III. We decline to delay termination because the evidence does not indicate the need for removal will no longer exist at the end of that six-month period. 

Case No. 19-1058:  In the Interest of K.N., Minor Child

Filed Sep 11, 2019

View Opinion No. 19-1058

            Appeal from the Iowa District Court for Bremer County, Peter B. Newell, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (8 pages)

            A mother appeals the juvenile court decision terminating her parental rights.  OPINION HOLDS:  We find there is clear and convincing evidence in the record to support termination of the mother’s rights and termination is in the child’s best interests.  We affirm the decision of the juvenile court.

Case No. 19-1063:  In the Interest of A.R. and S.R., Minor Children

Filed Sep 11, 2019

View Opinion No. 19-1063

            Appeal from the Iowa District Court for Black Hawk County, Daniel L. Block, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Greer, JJ.  Opinion by Tabor, J.  Dissent by Potterfield, P.J.  (11 pages)

            The father appeals the termination of his parental rights to his two children, A.R. and S.R.  The father does not contest the statutory grounds for termination have been met.  He maintains termination of his parental rights is not in the best interests of the children and claims the juvenile court should have placed the children in a guardianship with their maternal grandmother in lieu of terminating his parental rights because of the closeness of the bond he shares with the children.  OPINION HOLDS: Because the father has not demonstrated an ability to stay sober and create a safe environment for his children and will be imprisoned for at least three more years, and the children are thriving in their maternal grandmother’s care, we affirm the termination.  DISSENT ASSERTS: Based on the holdings of recent cases with similar facts, I would reverse the termination of the father's parental rights.

Case No. 19-1094:  In the Interest of Z.R., Minor Child

Filed Sep 11, 2019

View Opinion No. 19-1094

            Appeal from the Iowa District Court for Buena Vista County, Mary L. Timko, Associate Juvenile Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., Greer, J., and Vogel, S.J.  Opinion by Vogel, S.J.  (6 pages)

            A mother and father each appeal a juvenile court order terminating their parental rights.  OPINION HOLDS: There is clear and convincing evidence in the record to support termination of the mother’s parental rights, and the court properly denied her request for an extension of time.  The father did not raise any claims concerning the termination of his parental rights.  We conclude his parental rights were properly terminated.  We affirm on both appeals.

Case No. 19-1146:  In the Interest of K.K. and A.K., Minor Children

Filed Sep 11, 2019

View Opinion No. 19-1146

            Appeal from the Iowa District Court for Polk County, Lynn Poschner, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            A father appeals the termination of his parental rights to his children.  He contends termination was not in the children’s best interests and the juvenile court should have invoked certain exceptions to termination.  OPINION HOLDS: We affirm the termination of the father’s parental rights to the children.

Case No. 19-1164:  In the Interest of J.S., Minor Child

Filed Sep 11, 2019

View Opinion No. 19-1164

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            A mother appeals the termination of her parental rights to her child.  She contends (1) the State failed to prove the ground for termination cited by the court and (2) termination was not in the child’s best interests.  OPINION HOLDS: We affirm the termination of the mother’s parental rights to the child. 

Case No. 19-1170:  In the Interest of S.B. and R.B., Minor Children

Filed Sep 11, 2019

View Opinion No. 19-1170

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            On appeal, the father and the intervenors contend the juvenile court erred in not finding the mother had relapsed and that the children should remain with the father.  OPINION HOLDS:  The juvenile court found both parents were capable of caring for their children at the time of the permanency-review hearing and determined the children could be returned to the mother, from whom the children had been removed.  We find no reason to disturb the juvenile court’s ruling and we therefore affirm.

 

Case No. 19-1176:  In the Interest of G.B., Minor Child

Filed Sep 11, 2019

View Opinion No. 19-1176

            Appeal from the Iowa District Court for Benton County, Barbara H. Liesveld, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (9 pages)

            A mother appeals the termination of her parental rights to her minor child.  She argues: (1) termination is not in the child’s best interests, (2) the State failed to make reasonable efforts at reunification, and (3) she should have been given additional time for reunification.  OPINION HOLDS: We conclude termination is in the child’s best interests, the mother failed to preserve error on her reasonable-efforts challenge, and additional time is unwarranted.  We affirm the termination of the mother’s parental rights.

Case No. 19-1182:  In the Interest of P.R. and E.R., Minor Children

Filed Sep 11, 2019

View Opinion No. 19-1182

            Appeal from the Iowa District Court for Cerro Gordo County, Adam D. Sauer, District Associate Judge.  AFFIRMED. Considered by Potterfield, P.J., and May and Greer, JJ.  Opinion by Potterfield, P.J.  (4 pages)

            A mother appeals the termination of her parental rights to her two children.  She argues she should have additional time because she has a different attorney on appeal.  She also argues the Iowa Department of Human Services’ repeated failure to provide her with permanency plans violates her due process rights and it was abuse of discretion on the part of the district court to terminate her parental rights without the permanency plans. OPINION HOLDS: No due process violations occurred.  The mother’s abuse-of-discretion argument was not raised at any point before appeal and was not substantiated in the mother’s petition.  We affirm.

Case No. 19-1190:  In the Interest of A.C., I.C., and A.C., Minor Children

Filed Sep 11, 2019

View Opinion No. 19-1190

            Appeal from the Iowa District Court for Marion County, Steven Guiter, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Greer, JJ.  Opinion by Potterfield, P.J.  (5 pages)

            The mother appeals the termination of her parental rights to three of her children, who are all age three or younger.  The juvenile court terminated the mother’s parental rights to each child pursuant to Iowa Code section 232.116(1)(e) and (h) (2019), citing the mother’s unresolved use of methamphetamine, housing instability, and issues involving mental health.  On appeal, the mother claims there is insufficient evidence to support the statutory grounds for termination and, in the alternative, asks for an extension of time to work toward reunification.  OPINION HOLDS: The statutory grounds for termination have been met, and an extension of time is not warranted.  We affirm the termination of the mother’s parental rights.

Case No. 17-1952:  Rondell Mandray Cropp v. State of Iowa

Filed Aug 21, 2019

View Opinion No. 17-1952

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris and Andrea J. Dryer, Judges.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Potterfield, P.J.  (11 pages)

            Rondell Cropp appeals the dismissal of his application for postconviction relief (PCR) following his 2007 convictions for robbery in the first degree and willful injury causing serious injury.  He maintains the PCR court improperly dismissed his application without giving him notice of its intention to do so or allowing him an opportunity to respond.  OPINION HOLDS: Because Cropp could not meet his burden of establishing his PCR claims survive the statute of limitations based on the new-ground-of-fact exception and because his illegal-sentence claims did not merit an evidentiary hearing, the PCR court did not err in dismissing Cropp’s claims without an evidentiary hearing.  We affirm the dismissal of Cropp’s PCR application.

Case No. 18-0237:  In the Matter of E.M., Alleged to be Seriously Mentally Impaired.

Filed Aug 21, 2019

View Opinion No. 18-0237

            Appeal from the Iowa District Court for Des Moines County, Emily Dean, District Associate Judge.  REVERSED AND REMANDED WITH INSTRUCTIONS.  Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            E.M. appeals the district court order finding she was seriously mentally impaired.  OPINION HOLDS: We conclude the hospitalization order is not supported by clear and convincing evidence.  Accordingly, the order is reversed.  We remand the matter to the district court with instructions to deny the application and terminate the proceeding.

Case No. 18-0309:  Chester Lee Polk Jr. v. State of Iowa

Filed Aug 21, 2019

View Opinion No. 18-0309

            Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Tabor, J.  (5 pages)

            Postconviction-relief (PCR) applicant Chester Polk Jr. appeals the dismissal of his second PCR application as untimely.  He asks the court to apply the “relation-back” doctrine set out in Allison v. State, 914 N.W.2d 866, 891 (Iowa 2018), to find his application was timely.  OPINION HOLDS: Because the applicant waited nearly six months to file his second PCR application, he did not meet the “prompt” filing mandate in Allison.  We affirm the dismissal. 

Case No. 18-0476:  Friends of Bunker Mill Bridge, Inc. v. Washington County Board of Supervisors

Filed Aug 21, 2019

View Opinion No. 18-0476

            Appeal from the Iowa District Court for Washington County, Randy S. DeGeest, Judge.  AFFIRMED.  Considered Vaitheswaran, P.J., Vogel, S.J., and Blane, S.J.  Opinion by Vaitheswaran, P.J.  (8 pages)

            Friends of Bunker Mill Bridge, Inc. (FBMB) appeals the district court’s ruling on its petition for writ of certiorari upholding the order of the Washington County Board of Supervisors vacating a portion of a secondary highway.  OPINION HOLDS: We affirm the district court decision denying FBMB’s petition for writ of certiorari.

Case No. 18-0930:  Jose Luis Aguilar Olvera v. State of Iowa

Filed Aug 21, 2019

View Opinion No. 18-0930

            Appeal from the Iowa District Court for Emmet County, Nancy L. Whittenburg, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Tabor, J.  (11 pages)

            Jose Luis Aguilar Olvera appeals the district court’s denial of his application for postconviction relief, alleging his trial attorneys were ineffective in allowing him to submit blood and saliva samples under a nontestimonial identification order.  OPINION HOLDS: Because the district court’s order did not violate Aguilar’s due-process rights, Aguilar did not prove his attorneys performed below professional norms by not objecting to the corresponding procedures.  We thus affirm the denial of postconviction relief.

Case No. 18-1217:  Pablo Benavidez v. State of Iowa

Filed Aug 21, 2019

View Opinion No. 18-1217

            Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.  Opinion by Vaitheswaran, P.J.  (3 pages)

            Pablo Benavidez appeals a district court remand order with regard to his application for postconviction relief, contending the district court abused its discretion in deducting 5000 days of his earned time credits as a penalty for filing a frivolous action.  OPINION HOLDS: We affirm the district court’s deduction of 5000 days of earned time credits as a penalty for Benavidez’s frivolous filing. 

Case No. 18-1361:  In the Matter of the Guardianship and Conservatorship of Maggie Jean Lewis Turner

Filed Aug 21, 2019

View Opinion No. 18-1361

            Appeal from the Iowa District Court for Johnson County, Lars G. Anderson, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Tabor, J.  (14 pages)

            The ward’s niece and nephew appeal from the denial of their applications for guardianship and conservatorship and the appointment of the ward’s long-time friends as guardians.  They contend the district court erred in concluding the ward was competent when executing two durable powers of attorney (POA) granting a medical POA to the friends and a general POA to a bank.  OPINION HOLDS: We find no error in the court’s conclusion the ward was competent to execute the POAs.  There is no dispute the ward now needs a guardian, but we further conclude the appointment of the ward’s friends was appropriate and did not involve an abuse of discretion.  Finally, the district court did not err in determining the bank is adequately handling her financial affairs and a conservatorship is unnecessary. 

Case No. 18-1437:  Gregory Ragsdale v. David Wireman

Filed Aug 21, 2019

View Opinion No. 18-1437

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Gregory Ragsdale appeals the district court’s order granting David Wireman’s motion for summary judgment on Ragsdale’s petition for declaratory judgment regarding the parties’ interests in a public way created by a prior condemnation proceeding.  OPINION HOLDS: The district court did not err in concluding the condemned tract of land was a public tract and in granting Wireman’s motion for summary judgment.

Case No. 18-1475:  Chadmark, LLC v. Kristin Bush

Filed Aug 21, 2019

View Opinion No. 18-1475

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Potterfield, P.J., Greer, J., and Scott, S.J.  Opinion by Greer, J.  (8 pages)

            The district court awarded loss-of-use damages to Chadmark, LLC resulting from damage to one of its trucks.  The company appeals the court’s calculation of damages and asserts it is also entitled to damages for out-of-pocket expenses to retrieve a replacement truck.  OPINION HOLDS: We agree with the district court’s calculation of loss-of-use damages but find additional damages for out-of-pocket expenses are appropriate.  We remand for entry of judgment reflecting the additional damages award.

Case No. 18-1488:  Anthony A. Browne v. Edward Alton Hill, Adam Paul Pyatt, Michael Paul Noel, and David William Ambrisco

Filed Aug 21, 2019

View Opinion No. 18-1488

            Appeal from the Iowa District Court for Johnson County, Paul D. Miller, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.  Opinion by Tabor, J.  (2 pages)

            Anthony Browne appeals the district court’s grant of summary judgment in favor of his co-workers in his lawsuit alleging defamation and other torts.  OPINION HOLDS: We affirm without opinion.

Case No. 18-1496:  In re the Marriage of Vanderbilt

Filed Aug 21, 2019

View Opinion No. 18-1496

            Appeal from the Iowa District Court for Bremer County, DeDra L. Schroeder, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Tabor, J.  (8 pages)

            A husband appeals the district court’s refusal to set aside a default decree dissolving his marriage.  He contends his wife and her attorney misled him about the purpose of their meeting and claims he did not receive notice of the proceedings.  OPINION HOLDS: Deferring to the strong credibility findings of the district court, we find the husband’s excuses for defaulting do not support setting aside the default judgment.  We affirm. 

Case No. 18-1607:  Jorge Oscar Sanchez and Eligio Sanchez Estrella v. RR&A Holdings, LLC

Filed Aug 21, 2019

View Opinion No. 18-1607

            Appeal from the Iowa District Court for Marshall County, James C. Ellefson, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (11 pages)

            Jorge Sanchez appeals the district court order denying his petition for an injunction of the enforcement of the forfeiture of a real estate installment contract.  OPINION HOLDS: We find the notice of forfeiture was sufficient and affirm the district court’s denial of injunctive relief.  We also find the court did not err in finding RR&A did not waive its right to interest on untimely payments.  Finally, we affirm the district court’s denial of additional time to cure the default. 

Case No. 18-1689:  In the Interest of P.M., B.M., and L.M., Minor Children

Filed Aug 21, 2019

View Opinion No. 18-1689

            Appeal from the Iowa District Court for Page County, Amy L. Zacharias, Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., and Doyle and May, JJ.   Opinion by Potterfield, P.J.  (9 pages)

            Parents appeal the termination of their parental rights to their three minor children.  The district court terminated their parental rights under Iowa Code section 600A.8(3)(b) (2018).  OPINION HOLDS: We conclude clear and convincing evidence supports the district court’s determination that the parents abandoned the children under Iowa Code section 600A.8(3)(b).  We further conclude termination of the parent’s parental rights is in the children’s best interest.  We affirm.

Case No. 18-1811:  Brett V. Sullivan v. West Central Cooperative and Farmland Mutual Insurance Company

Filed Aug 21, 2019

View Opinion No. 18-1811

            Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Tabor, JJ.  Opinion by Potterfield, P.J.  (7 pages)

            Brett Sullivan challenges the district court’s ruling on judicial review affirming the Workers’ Compensation Commissioner’s determination Sullivan does not have a mental-health condition that was caused by his 2011 workplace injury.  OPINION HOLDS: Because we agree with the district court’s conclusion that substantial evidence support the commissioner’s determination, we affirm.

Case No. 18-1820:  In re the Marriage of Lyon

Filed Aug 21, 2019

View Opinion No. 18-1820

            Appeal from the Iowa District Court for Hardin County, James A. McGlynn, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.   Opinion by Potterfield, P.J.  (7 pages)

            Steven Lyon appeals from the district court’s modification of his and Lori Lyon’s previously modified dissolution decree.  He asks us to affirm the district court’s change of the holiday schedule but otherwise argues the court should have changed the parenting-time schedule to give him even more time with the parties’ child, C.L.  In response, Lori asks that we affirm the district court’s modification and award her $2500 in appellate attorney fees.  OPINION HOLDS: For the reasons stated herein, we affirm the district court’s ruling on Steven’s petition for modification and decline Lori’s request for appellate attorney fees. 

Case No. 18-1948:  State of Iowa v. Justin Dennis Hullinger Shields

Filed Aug 21, 2019

View Opinion No. 18-1948

            Appeal from the Iowa District Court for Wayne County, John D. Lloyd, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J. (6 pages)

            Justin Shields appeals the district court’s denial of his motion to suppress preceding his conviction of operating while intoxicated.  OPINION HOLDS: We affirm the district court’s denial of Shields’s motion to suppress.

Case No. 18-2019:  In the Interest of D.K., Minor Child

Filed Aug 21, 2019

View Opinion No. 18-2019

            Appeal from the Iowa District Court for Appanoose County, William Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.   Opinion by Potterfield, P.J.  (8 pages)

            A father appeals the termination of his parental rights to his child.  The district court terminated his parental rights under Iowa Code section 600A.8(3)(b) (2018).  On appeal, the father argues the termination of his parental rights is supported by insufficient evidence.  OPINION HOLDS:  The mother proved the father abandoned the child by clear and convincing evidence.  It is in the child’s best interest to terminate the father’s parental rights.  We affirm.

Case No. 18-2025:  In re the Marriage of Grchan

Filed Aug 21, 2019

View Opinion No. 18-2025

            Appeal from the Iowa District Court for Scott County, John D. Telleen, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            Kristen Grchan appeals from the decree dissolving her marriage to Michael Grchan, contending the parties’ children should have been placed in her physical care rather than shared physical care.  OPINION HOLDS: On our de novo review, we conclude the district court acted equitably in granting the parents joint physical care of the children. 

Case No. 18-2100:  State of Iowa v. Dale Leroy Cheney Jr.

Filed Aug 21, 2019

View Opinion No. 18-2100

            Appeal from the Iowa District Court for Cerro Gordo County, Adam D. Sauer (motion to suppress) and Karen Kaufman Salic (sentencing), District Associate Judges.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J. (6 pages)

            Dale Cheney Jr. appeals the district court’s denial of his motion to suppress and the sentence imposed upon his conviction of operating while intoxicated, second offense.  OPINION HOLDS: We affirm the district court’s denial of Cheney’s motion to suppress and the sentence imposed.   

Case No. 19-0034:  In the Matter of J.E., Alleged to be Seriously Mentally Impaired

Filed Aug 21, 2019

View Opinion No. 19-0034

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.   Opinion by Potterfield, P.J.  (6 pages)

            J.E. challenges the district court’s order of continued involuntary inpatient commitment.  J.E. maintains there is insufficient evidence to support the determination he is a present danger to himself or others and requires continued placement in an alternative care facility.  OPINION HOLDS: J.E. is not able to satisfy his essential needs without assistance.  Because sufficient evidence supports the district court’s order of continued involuntary inpatient commitment, we affirm.

Case No. 19-0059:  Pengzhen Yin v. Iowa Board of Regents

Filed Aug 21, 2019

View Opinion No. 19-0059

            Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., Greer, J., and Scott, S.J.  Opinion by Scott, S.J.  (8 pages)

            The Iowa Board of Regents (Board) appeals the district court order reversing its decision to expel a student for academic misconduct.  OPINION HOLDS:  The Board’s decision is supported by substantial evidence.  We reverse the district court’s decision and remand for an order affirming the Board’s decision.

Case No. 19-0972:  In the Interest of J.L. and J.L., Minor Children

Filed Aug 21, 2019

View Opinion No. 19-0972

            Appeal from the Iowa District Court for Wapello County, William S. Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (8 pages)

            A mother appeals the juvenile court’s permanency order and decision terminating her parental rights.  OPINION HOLDS: We find the State engaged in reasonable efforts to reunite the mother with her children and termination of the mother’s parental rights is in the children’s best interests.  We affirm the decision of the juvenile court.

Case No. 19-1011:  In the Interest of B.M., K.M., and R.M., Minor Children

Filed Aug 21, 2019

View Opinion No. 19-1011

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (5 pages)

            A father appeals the termination of his parental rights to his children.  OPINION HOLDS: Clear and convincing evidence shows terminating the father’s parental rights is in the children’s best interests.  As a result, we affirm.

Case No. 19-1064:  In the Interest of L.C. and K.C., Minor Children

Filed Aug 21, 2019

View Opinion No. 19-1064

            Appeal from the Iowa District Court for Pottawattamie County, Scott Strait, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (7 pages)

            A mother and father separately appeal the termination of their parental rights to two children.  The mother challenges the statutory ground for termination, but the father concedes the State proved the grounds as to him.  He argues it was not in the children’s best interests to terminate his rights.  Finally, he contends the court should have given him more time to reunify with the children.  OPINION HOLDS: On de novo review, we conclude the State proved the statutory ground for terminating the mother’s rights.  The State also showed it was in the children’s best interests to terminate the father’s rights.  Finally, there were no grounds to support granting the father additional time.  We affirm. 

Case No. 19-1091:  In the Interest of C.P., Minor Child

Filed Aug 21, 2019

View Opinion No. 19-1091

            Appeal from the Iowa District Court for Polk County, Lynn Poschner, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            A mother appeals the termination of her parental rights to a child, born in 2018.  She contends the State failed to prove the grounds for termination cited by the district court, termination is not in the child’s best interests, and the court should have granted her six additional months to work toward reunification with the child.  OPINION HOLDS: We affirm the termination of the mother’s parental rights to the child.

Case No. 18-0110:  In re the Marriage of Okrzynski and Campos

Filed Aug 07, 2019

View Opinion No. 18-0110

            Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.  AFFIRMED AND REMANDED.  Considered by Vaitheswaran, P.J., Mullins J., and Vogel, S.J.  Opinion by Vaitheswaran, P.J.  (3 pages)

            Marvin Campos appeals the district court’s denial of his petition to modify the parties’ dissolution decree.  We must decide whether the district court erred in concluding Campos’ petition amounted to an impermissible collateral attack on prior orders.  OPINION HOLDS: We affirm the dismissal of the petition to modify the decree.  Leah Okrzynski is entitled to have Campos pay her appellate attorney fees; we remand for a hearing to determine the amount.

Case No. 18-0259:  State of Iowa v. Jontese L. Ware

Filed Aug 07, 2019

View Opinion No. 18-0259

            Appeal from the Iowa District Court for Linn County, Nicholas L. Scott, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Tabor, J.  (5 pages)

            The defendant appeals his convictions for assault causing bodily injury, arguing photographs of the alleged injuries to a victim who did not testify violated the Confrontation Clause.  OPINION HOLDS: Because the photographs are not testimonial statements, there is no Confrontation Clause violation.  The district court did not err in overruling the objection.   

Case No. 18-0686:  Leon Juan Zacharias v. State of Iowa

Filed Aug 07, 2019

View Opinion No. 18-0686

            Appeal from the Iowa District Court for Muscatine County, Joel W. Barrows, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Bower, J.  (8 pages)

            Leon Juan Zacarias appeals the dismissal of his application for postconviction relief.  He claims the district court erred in its credibility determination and his trial counsel provided ineffective assistance.  OPINION HOLDS: We find the district court did not abuse its discretion in its credibility findings and Zacarias did not establish by a preponderance of evidence that trial counsel breached a duty to him.  We affirm.

Case No. 18-0699:  In re the Marriage of McMillian

Filed Aug 07, 2019

View Opinion No. 18-0699

            Appeal from the Iowa District Court for Cerro Gordo County, Colleen D. Weiland, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Doyle, J., and Vogel, S.J.  Opinion by Vaitheswaran, P.J.  (5 pages)

            Justin McMillian appeals the district court’s denial of his petition to modify the parties’ dissolution decree to order physical care of the parties’ child with him.  OPINION HOLDS: We conclude the district court acted equitably in denying Justin’s petition to modify the physical care provision of the dissolution decree.  We affirm the court’s decision.

Case No. 18-0714:  Sycamore, L.L.C. and Lake Calvin Properties, L.L.C. v. City Council of Iowa City

Filed Aug 07, 2019

View Opinion No. 18-0714

            Appeal from the Iowa District Court for Johnson County, Kevin McKeever, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Tabor, JJ.  Opinion by Potterfield, P.J.  (10 pages)

            Sycamore, L.L.C. and Lake Calvin Properties, L.L.C. appeal the district court’s ruling annulling their writ of certiorari challenging the City Council of Iowa City’s denial of their application to rezone 42.01 acres of property.  On appeal, the landowners maintain the district court erred in concluding (1) the City Council did not incorrectly apply the law in denying their application for rezoning and (2) the Council’s decision is supported by substantial evidence in the record.  OPINION HOLDS: Because the Council did not incorrectly apply the law and substantial evidence supports its decision to deny the landowners’ application for rezoning, we affirm the district court’s annulling of the landowners’ writ of certiorari. 

Case No. 18-0929:  Chad Miller v. Property Assessment Appeal Board and Scott County Board of Review

Filed Aug 07, 2019

View Opinion No. 18-0929

            Appeal from the Iowa District Court for Scott County, Mark R. Lawson, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (9 pages)

            Chad Miller appeals the district court decision affirming the ruling of the Iowa Property Assessment Appeal Board (PAAB) that his property should be classified as residential, rather than agricultural.  The PAAB cross-appeals the court’s determination the issue of inequitable assessment of Miller’s property should be remanded to the PAAB.  OPINION HOLDS: We affirm the district court and the PAAB on the issue of the classification of Miller’s property as agricultural.  We reverse the district court’s decision on the issue of inequitable assessment.  We remand for an order affirming the PAAB’s decision on inequitable assessment.

Case No. 18-0985:  David Ray Hawkins v. State of Iowa

Filed Aug 07, 2019

View Opinion No. 18-0985

            Appeal from the Iowa District Court for Marion County, Dustria A. Relph, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Bower, J.  (2 pages)

            David Ray Hawkins appeals from the summary dismissal of his application for postconviction relief (PCR).  He raises a claim of ineffective assistance of PCR counsel.  OPINION HOLDS: The ineffective-assistance-of-counsel claim must be asserted in a separate PCR application. 

Case No. 18-1006:  In re the Marriage of Jensen

Filed Aug 07, 2019

View Opinion No. 18-1006

            Appeal from the Iowa District Court for Lucas County, Dustria A. Relph, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Tabor, J., and Carr, S.J.  Opinion by Carr, S.J.  (6 pages)

            Jay Todd Jensen appeals from the decree of dissolution of his marriage to Kimberly Marie Jensen.  He argues the court should not have considered his disability and special pay from his military service when awarding Kimberly’s retirement accounts entirely to her.  OPINION HOLDS: We find that awarding each party their respective retirement accounts is equitable, and we affirm the district court.

Case No. 18-1021:  Bobby Joe Morris v. State of Iowa

Filed Aug 07, 2019

View Opinion No. 18-1021

            Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Gamble, S.J., takes no part.  Opinion by Bower, J.  (7 pages)

            Bobby Joe Morris appeals from the dismissal of his application for postconviction relief (PCR) in which he challenges his 1998 conviction for first-degree murder.  OPINION HOLDS: All of Morris’s claims of ineffective assistance of trial, appellate, and first PCR counsel are time barred.  With respect to his cruel-and-unusual-punishment claim, Morris grounds the claim on due process, arguing, “The due process violation as to Morris results in his cruel and unusual punishment under Article I, section 17 of the Iowa Constitution . . . and the Eighth Amendment.”  We find no error in the PCR court’s rejection of his claim of an illegal sentence. 

Case No. 18-1069:  State of Iowa v. Willie Clay Werner

Filed Aug 07, 2019

View Opinion No. 18-1069

            Appeal from the Iowa District Court for Hamilton County, Timothy J. Finn, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Potterfield, P.J., and Doyle and May, JJ.   Opinion by Potterfield, P.J. (6 pages)

           

            On appeal after resentencing, Willie Werner argues the resentencing court abused its discretion by (1) using an outdated presentence investigation report, (2) imposing consecutive sentences without stating adequate reasons on the record, and (3) ordering him to reimburse the state for attorney fees without determining the amount of restitution or his ability to pay.  OPINION HOLDS: We affirm the district court’s decision to impose a sixty-year term of incarceration; however, we reverse the part of the sentence regarding restitution and remand the case for resentencing consistent with this opinion and State v. Albright, 925 N.W.2d 144, 159 (Iowa 2019).

Case No. 18-1089:  State of Iowa v. David Lee Levy Jr.

Filed Aug 07, 2019

View Opinion No. 18-1089

            Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Doyle, J. (4 pages)

            David Levy Jr. appeals the sentence imposed following his conviction of assault on a jailer causing bodily injury.  OPINION HOLDS: I. The district court did not abuse its discretion in ordering Levy’s sentence run consecutive to his sentence in another case.  II. In accordance with State v. Albright, 925 N.W.2d 144, 158-61 (Iowa 2019), we vacate the portion of the sentencing order assessing costs of the action, surcharges, and fees to Levy pending completion of a final restitution order and assessment of Levy’s reasonable ability to pay.  III. We also vacate the portion of the sentencing order requiring Levy to request a hearing on his reasonable ability to pay appellate attorney fees or be assessed the full amount and remand for entry of a corrected order.

Case No. 18-1151:  James Moriarty v. State Public Defender

Filed Aug 07, 2019

View Opinion No. 18-1151

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Vogel, S.J., and Scott, S.J.  Opinion by Vaitheswaran, P.J.  (3 pages)

            James Moriarty seeks further judicial review of a final agency decision terminating his indigent-defense contract with the State Public Defender.  OPINION HOLDS: Like the district court, we affirm the agency decision in its entirety.

Case No. 18-1152:  Ronald N. McDonald v. EZ Payroll & Staffing Solutions, LLC and Zurich American Insurance Company

Filed Aug 07, 2019

View Opinion No. 18-1152

              Appeal from the Iowa District Court for Johnson County, Lars G. Anderson, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (10 pages)

            Ronald N. McDonald appeals from the district court’s judicial review ruling upholding the workers’ compensation commissioner’s denial of permanent disability benefits.  OPINION HOLDS: Because we find no abuse of discretion in the commissioner’s evidentiary ruling and there is substantial evidence to support the commissioner’s determination that McDonald had not proved causation, we affirm the district court in upholding the commissioner’s findings. 

Case No. 18-1155:  Heather Brooke Almeida n/k/a Heather Bertroche v. David John Wilcox Almeida

Filed Aug 07, 2019

View Opinion No. 18-1155

            Appeal from the Iowa District Court for Scott County, Stuart P. Werling, Judge.  AFFIRMED.         Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Mullins, P.J.  (12 pages)

            David Almeida appeals the entry of a domestic-abuse protective order under Iowa Code chapter 236 (2016) in favor of Heather Almeida.  OPINION HOLDS: We affirm the district court’s entry of the protective order.

Case No. 18-1206:  Kristin R. Brosnan v. Stan Woodman and Myra Woodman d/b/a Aragon Tap

Filed Aug 07, 2019

View Opinion No. 18-1206

            Appeal from the Iowa District Court for Dubuque County, Monica L. Zrinyi Wittig, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.  Opinion by Tabor, J.  (11 pages)

            Kristin Brosnan appeals the district court’s grant of summary judgment in her negligence action against Aragon Tap and Stan and Myra Woodman, claiming the court improperly resolved a credibility dispute between conflicting evidence.  OPINION HOLDS: Because uncontroverted video evidence demonstrated the absence of a factual dispute, and Brosnan is unable to prove the causation element of her negligence claim, we affirm.

Case No. 18-1233:  GreatAmerica Financial Services Corporation v. Monge & Associates, P.C.

Filed Aug 07, 2019

View Opinion No. 18-1233

            Appeal from the Iowa District Court for Linn County, Chad A. Kepros, Judge.  AFFIRMED.  Considered by Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Bower, J.  (11 pages)

            Monge & Associates, P.C., appeals from the district court’s order granting summary judgment in favor of GreatAmerica Financial Services Corporation in this breach-of-contract action.  OPINION HOLDS: Because no genuine issue of material fact remains for trial, GreatAmerica is entitled to judgment as a matter of law.

Case No. 18-1260:  State of Iowa v. Brandon D. Ruiz

Filed Aug 07, 2019

View Opinion No. 18-1260

            Appeal from the Iowa District Court for Scott County, Joel W. Barrows and Tom Reidel, Judges.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.   Opinion by Potterfield, P.J. (5 pages)

           

            Brandon Ruiz appeals from his conviction of sexual abuse in the second degree following a trial to the bench.  Ruiz maintains the district court erred by allowing the State to amend the trial information to add wholly new or different charges after the speedy-indictment deadline had passed.  OPINION HOLDS: The court’s decision to allow the State to amend the trial information to include six more counts than the initial trial information was in error, but the error was harmless since Ruiz was convicted of just one count—as he was initially charged.  We affirm.

Case No. 18-1421:  Dave Tomlinson v. State of Iowa

Filed Aug 07, 2019

View Opinion No. 18-1421

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (3 pages)

            Dave Tomlinson appeals an order granting the State’s motion to dismiss.  OPINION HOLDS: Finding no legal error, we affirm the order granting the State’s motion to dismiss. 

Case No. 18-1535:  In re the Marriage of Curtis

Filed Aug 07, 2019

View Opinion No. 18-1535

            Appeal from the Iowa District Court for Adams County, John D. Lloyd, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Considered by Doyle, P.J., Mullins, J., and Vogel, S.J.  Opinion by Mullins, J.  (17 pages)

            Mark Curtis appeals the decree dissolving his marriage to Misha Curtis.  Mark challenges the spousal-support, child-support, property-distribution, and visitation provisions of the decree, as well as the court’s award of trial attorney fees to Misha.  Misha requests an award of appellate attorney fees.  OPINION HOLDS: We modify the amount and duration of rehabilitative spousal support to $1000.00 per month for one year from the time the decree was entered, followed by $500.00 per month for six months.  We modify Mark’s child-support obligation under the decree to $910.81 per month.  Given the limited duration of Misha’s spousal-support award coupled with an anticipated increase in her income, we remand the matter to the district court for a determination of Mark’s child-support obligation after his spousal-support obligation decreases to $500.00 per month.  The foregoing support obligation shall apply to the duration between the entry of the decree and the time the district court enters an order identifying Mark’s future support obligation.  We find correction or modification of Mark’s temporary child-support obligation was not properly before the court, and the court’s sua sponte retroactive modification of the temporary-matters order was therefore error.  We therefore modify the decree to vacate the portions that retroactively modified Mark’s child-support obligation under the temporary-matters order.  We affirm the district court’s property distribution in its entirety and the award of attorney fees in favor of Misha.  We deny Misha’s request for appellate attorney fees.  Costs on appeal are assessed equally between the parties. 

Case No. 18-1593:  Dena Jean Blazek, Administrator of the Estate of Adam William Blazek, Deceased; Dena Jean Blazek, Individually, and as Next Friend of C.B. and A.B. v. City of Nevada and City of Nevada, Iowa Employees Doe

Filed Aug 07, 2019

View Opinion No. 18-1593

            Appeal from the Iowa District Court for Story County, James A. McGlynn, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (13 pages)

            The plaintiffs appeal the district court’s decision granting the motion for summary judgment filed by the City of Nevada and unnamed City of Nevada employees in a suit seeking money damages for the death by suicide of Adam Blazek and the conduct of City of Nevada police officers.  OPINION HOLDS:  The plaintiffs’ tort claims against the defendants were barred because the defendants did not have a special relationship with the plaintiffs sufficient to defeat the public-duty doctrine.  The plaintiffs’ constitutional claims fail because they are based on tort theories and similarly barred by the public-duty doctrine or were based on violations of the plaintiffs’ substantive due process rights, in which case the plaintiffs did not meet their burden to show the defendants’ actions shocked the conscience.

Case No. 18-1624:  Lee and Rita Dvorak v. Oak Grove Cattle, L.L.C.

Filed Aug 07, 2019

View Opinion No. 18-1624

            Appeal from the Iowa District Court for Mitchell County, DeDra L. Schroeder, Judge.  REVERSED AND REMANDED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Bower, J.  (7 pages)

            Lee and Rita Dvorak appeal the district court decision granting summary judgment to Oak Grove Cattle, L.L.C., based on the statute of limitations.  OPINION HOLDS: We conclude the district court improperly granted summary judgment to Oak Grove on the ground the Dvoraks’ action was barred by the statute of limitations.  Oak Grove did not meet its burden to show the case involved a permanent nuisance, rather than a continuing nuisance.  We reverse the decision of the district court and remand for further proceedings.

Case No. 18-1663:  Gregory R. Swecker and Beverly F. Swecker v. Midland Power Cooperative

Filed Aug 07, 2019

View Opinion No. 18-1663

            Appeal from the Iowa District Court for Greene County, Kurt J. Stoebe, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Mullins, P.J.  (3 pages)

            Gregory and Beverly Swecker appeal the dismissal of their petition to vacate a judgment.  OPINION HOLDS: Finding no abuse of discretion in the court’s ruling, we affirm.

Case No. 18-1670:  Amy Ruchotzke v. Shawn Gerardy

Filed Aug 07, 2019

View Opinion No. 18-1670

            Appeal from the Iowa District Court for Jackson County, Henry W. Latham II, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.   Opinion by Potterfield, P.J.  (3 pages)

            Amy Ruchotzke appeals from the provision of the district court’s order for custody, child support, and visitation giving Shawn Gerardy physical care of the parties’ minor child, T.G.  Amy contends she should be given physical care of T.G., as she is better equipped to meet his needs.  Her appeal is based on the claim the district court got the facts wrong.  OPINION HOLDS: While our review is de novo, we agree with the district court’s recitation of pertinent facts and the determination that placing T.G. is Shawn’s physical care is in T.G.’s best interests.  We affirm.

Case No. 18-1694:  In re the Marriage of Liening

Filed Aug 07, 2019

View Opinion No. 18-1694

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Mullins, P.J.  (8 pages)

            Steven Liening appeals the district court order denying his petition to modify the physical-care provisions of a dissolution-of-marriage decree.  OPINION HOLDS: We affirm the court’s denial of Steven’s petition for modification as he failed to prove a substantial and material change in circumstance occurred which justifies the modification of the children’s physical-care arrangement.  Steven also failed to prove he had a superior ability to meet the needs of the children.  We decline to award appellate attorney fees.  Costs on appeal are taxed one-half to each party.

Case No. 18-1695:  In re the Marriage of Brincks

Filed Aug 07, 2019

View Opinion No. 18-1695

            Appeal from the Iowa District Court for Chickasaw County, Richard D. Stochl, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (9 pages)

            Victoria Brincks appeals the district court’s order dissolving her marriage to William Brincks.  OPINION HOLDS: Upon our de novo review, we affirm the part of the district court’s order dissolving the marriage.  However, we do not believe that including the marital debts into the “pot” and dividing them equitably runs afoul of the Bankruptcy Code in the limited circumstances of this case, and we therefore reverse the part of the district court’s order declining to order William to pay his share of the marital debts in issue on appeal.  We remand for further proceedings consistent with this opinion.

Case No. 18-1705:  Dawn Marie Leach v. Iowa Board of Nursing

Filed Aug 07, 2019

View Opinion No. 18-1705

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Tabor, JJ.  Opinion by Potterfield, P.J.  (8 pages)

            Nurse Dawn Leach appeals from the district court’s dismissal of her petition for judicial review challenging the Iowa Board of Nursing’s conclusion she violated the confidentiality or privacy rights of a patient and imposition of a citation and warning.  Leach maintains the district court erred in dismissing her petition for judicial review because the Board’s conclusion is based upon an irrational, illogical, or wholly unjustifiable application of law to fact that has clearly been vested by a provision of law in the discretion of the agency and is not supported by substantial evidence in the record before the court when that record is viewed as a whole.  OPINION HOLDS: We cannot say the Board’s determination is irrational, illogical, or wholly unjustifiable when it found purposefully accessing confidential patient information that is not needed to perform one’s job duties—without further action—constitutes a violation of patient confidentiality rights.  We affirm.

Case No. 18-1711:  Raymond Blasco v. Nichole Marie Webb

Filed Aug 07, 2019

View Opinion No. 18-1711

            Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (8 pages)

            Nichole Webb appeals from the district court’s decree of paternity, custody, visitation, and support.  She asserts she should have been granted physical care of the parties’ child.  OPINION HOLDS: We affirm.

Case No. 18-1712:  Hedayat Khaldar Saghir v. Menards

Filed Aug 07, 2019

View Opinion No. 18-1712

            Appeal from the Iowa District Court for Polk County, David May, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  May, J., takes no part.  Opinion by Bower, J.  (7 pages)

            Hedayat Khaldar Saghir appeals the district court’s and workers’ compensation commissioner’s rulings finding he did not establish permanent impairment attributable to his work injury or industrial disability.  OPINION HOLDS: Substantial evidence supports the district court’s ruling on judicial review, and we therefore affirm.

Case No. 18-1717:  In the Interest of W.E., Minor Child

Filed Aug 07, 2019

View Opinion No. 18-1717

            Appeal from the Iowa District Court for Scott County, Christine Dalton Ploof, District Associate Judge.  REVERSED AND REMANDED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (6 pages)

            The juvenile court concluded W.E. committed acts constituting theft in the second degree and carrying weapons.  The court adjudicated W.E. delinquent.  OPINION HOLDS: The evidence does not establish beyond a reasonable doubt that W.E. committed acts constituting theft in the second degree or carrying weapons.

Case No. 18-1833:  Christopher Hans Granstra v. Shea Brianne Driesen

Filed Aug 07, 2019

View Opinion No. 18-1833

            Appeal from the Iowa District Court for O’Brien County, Charles Borth, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Christopher Granstra appeals a decree establishing paternity, custody, visitation, and child support.  Granstra requests he have physical care of the parties’ child rather than the child’s mother, Shea Driesen.  OPINION HOLDS: We affirm, concluding the district court acted equitably in granting Driesen rather than Granstra physical care of the child.

Case No. 18-1921:  Stephen Schoonover v. Megan Coulter

Filed Aug 07, 2019

View Opinion No. 18-1921

            Appeal from the Iowa District Court for Fayette County, Richard D. Stochl, Judge.  AFFIRMED AS MODIFIED.  Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  Dissent by Mullins, J.  (6 pages)

            Megan Coulter appeals a district court decree awarding Stephen Schoonover physical care of their child.  OPINION HOLDS: On this record, we conclude Coulter should have been granted physical care, and we modify the physical-care determination to place physical care of the child with her.  DISSENT ASSERTS:  Based on the extremely limited trial record and ignoring the non-record facts asserted by Coulter in her brief on appeal, I would affirm.

Case No. 18-1937:  In re the Detention of Bradley Williams

Filed Aug 07, 2019

View Opinion No. 18-1937

            Appeal from the Iowa District Court for Black Hawk County, Joel Dalrymple, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (6 pages)

            Bradley Williams appeals his civil commitment as a sexually violent predator under Iowa Code chapter 229A (2016).  He argues the court erred in concluding he was “a person presently confined” for a sexually violent offense within the meaning of Iowa Code section 229A.4(1) and the evidence was insufficient to support a conclusion he is a “sexually violent predator” as defined in section 229A.2(12).  OPINION HOLDS: We find substantial evidence supports the district court’s conclusions and affirm the district court order civilly committing Williams as a sexually violent predator.

Case No. 18-2022:  Darren Sleister v. State Farm Fire and Casualty Company

Filed Aug 07, 2019

View Opinion No. 18-2022

            Appeal from the Iowa District Court for Polk County, David May, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and Greer, JJ.  May, J., takes no part.  Opinion by Greer, J.  (7 pages)

            Darren Sleister appeals the district court’s orders granting judgment notwithstanding the verdict to State Farm Fire and Casualty Company (State Farm) on his breach-of-contract claim and dismissing his bad-faith claim.  He argues the evidence is sufficient for the jury to conclude he complied with the conditions of the homeowner’s policy issued by State Farm.  OPINION HOLDS: We agree with the district court’s detailed and well-reasoned opinion on judgment notwithstanding the verdict as to the breach-of-contract claim, and we affirm without further opinion.  Based on this conclusion, we also affirm the grant of summary judgment on his bad-faith claim.

Case No. 18-2023:  In re the Marriage of Bernal

Filed Aug 07, 2019

View Opinion No. 18-2023

            Appeal from the Iowa District Court for Madison County, Martha L. Mertz, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (2 pages)

            Tina Staples appeals from the district court’s ruling on contempt claims, temporary support, and alimony.  OPINION HOLDS: We affirm without opinion pursuant to Iowa Rule of Appellate Procedure 6.1203(a) and (d).

Case No. 18-2086:  Jayne A. Intlekofer, Jeffrey C. Intlekofer, Catherine A. Intlekofer and Stephen J. Intlekofer v. Reitberry Rental Prop., LLC, and City of Monticello, IA

Filed Aug 07, 2019

View Opinion No. 18-2086

            Appeal from the Iowa District Court for Jones County, Paul D. Miller, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.  Opinion by Tabor, J.  (7 pages)

            The Intlekofers appeal the district court’s grant of summary judgment to the City of Monticello and an adjacent property owner on claims of negligence allegedly resulting in water damage to the Intlekofers’ building, arguing the district court erroneously concluded an expert witness is required to establish causation because it is common knowledge that “water flows downhill.”  OPINION HOLDS:  Because whether changes in topography caused the water damage is a technical or scientific matter calling for an expert opinion, we affirm the district court’s grant of summary judgment. 

Case No. 18-2104:  In re the Marriage of Pierce

Filed Aug 07, 2019

View Opinion No. 18-2104

            Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (4 pages)

            Suzanne Billeter appeals the district court’s denial of her petition to modify the decree dissolving her marriage to Brian Pierce.  She argues the court erred in: (1) not finding a substantial and material change in circumstance to modify custody and physical care, (2) finding a substantial change in circumstance to modify child support, and (3) not granting a new trial.  OPINION HOLDS: We affirm the court’s modification ruling and the denial of Suzanne’s request for a new trial.

Case No. 18-2122:  In re the Marriage of Widdison

Filed Aug 07, 2019

View Opinion No. 18-2122

            Appeal from the Iowa District Court for Woodbury County, James S. Heckerman, Judge.  AFFIRMED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (6 pages)

            Harold Widdison appeals various district court orders in the ongoing litigation following the dissolution of his marriage to Amy Widdison (now Amy Dendy).  OPINION HOLDS: Harold is not entitled to reimbursement of fees or costs incurred when the Iowa Child Support Recovery Unit seized funds from his retirement account.  We affirm the district court’s award of Amy’s attorney fees and denial of Harold’s motion for sanctions.  We remand to the district court to determine the amount of Amy’s appellate attorney fee award. 

Case No. 18-2157:  In re the Marriage of Carter

Filed Aug 07, 2019

View Opinion No. 18-2157

            Appeal from the Iowa District Court for Union County, Dustria A. Relph, Judge.  AFFIRMED AS MODIFIED.  Considered by Vaitheswaran, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (12 pages)

            Jessie Carter appeals the district court’s decree dissolving her marriage to Jared Carter.  OPINION HOLDS: We find the district court’s findings on the award of shared physical care to be thorough and well-written and agree with the court’s conclusions.  We also find the district court’s decision to not award spousal support to be equitable.  We further find the district court did not abuse its discretion in its award of attorney fees to Jessie.  Accordingly, we affirm the district court’s decisions on shared care, spousal support, and attorney fees.  Given the parties’ economic positions and the significant disparity in income, equity requires Jared pay seventy-five percent of the children’s educational and extracurricular-activity expenses and Jessie pay twenty-five percent.  We modify the dissolution decree to require the parties to pay the expenses in accordance with those percentages.  Considering the parties’ economic positions and the minor modification in Jessie’s favor, Jared shall pay $1000.00 toward Jessie’s appellate attorney fees.  Costs on appeal shall be assessed one-half to each party. 

Case No. 18-2212:  In re the Marriage of Hansen

Filed Aug 07, 2019

View Opinion No. 18-2212

            Appeal from the Iowa District Court for Jackson County, John D. Telleen, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  (6 pages)

            Brandy Hansen appeals from the decree dissolving her marriage to James Hansen.  She argues the district court erred in granting James physical care of two children and child support.  OPINION HOLDS: Based on our de novo review of the record while giving deference to the district court’s findings, we conclude the court correctly awarded physical care of the two children to James.  We also conclude the court correctly awarded child support.  We decline to award either party appellate attorney fees.

Case No. 19-0044:  In the Interest of S.B., Minor Child

Filed Aug 07, 2019

View Opinion No. 19-0044

            Appeal from the Iowa District Court for Boone County, Stephen A. Owen, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (2 pages)

            S.B. appeals the juvenile court’s determination he must register with the sex offender registry.  OPINION HOLDS: We agree with the ruling of the juvenile court, and we affirm without further opinion. 

Case No. 19-0234:  In the Matter of K.T., Alleged to be Seriously Mentally Impaired

Filed Aug 07, 2019

View Opinion No. 19-0234

            Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and Greer, JJ.  Opinion by Greer, J.  (6 pages)

            K.T. challenges the district court’s finding of serious mental impairment, claiming there is insufficient evidence that she lacks sufficient judgment to make responsible decisions with respect to her hospitalization or treatment.  OPINION HOLDS: We conclude the district court’s findings of fact were supported by substantial evidence, and there was no error of law in the district court’s decision that K.T. lacked sufficient judgment to make responsible decisions regarding her care.

Case No. 19-0247:  In the Interest of C.P., Minor Child

Filed Aug 07, 2019

View Opinion No. 19-0247

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Greer, JJ.  Opinion by Potterfield, P.J.  (5 pages)

            A mother appeals the termination of her parental rights to C.P., her minor child.  She argues her parental rights should not have been terminated and guardianship of C.P. should have been given a family member.  OPINION HOLDS: Because we conclude termination was proper, we decline to address the mother’s post-termination placement argument.  We affirm.

Case No. 19-0731:  In the Interest of T.G., N.G., A.G., and J.G., Minor Children

Filed Aug 07, 2019

View Opinion No. 19-0731

            Appeal from the Iowa District Court for Pottawattamie County, Scott Strait, District Associate Judge.  REVERSED AND REMANDED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Vaitheswaran, P.J.  (8 pages)

            A father and mother separately appeal the termination of their parental rights to four children.  OPINION HOLDS: With regard to the mother, we conclude the State failed to prove the grounds for termination.  With regard to the father, we conclude termination was not in the children’s best interests.  We reverse the termination decision as to both parents and remand for further proceedings. 

Case No. 19-0771:  In the Interest of A.J. and C.J., Minor Children

Filed Aug 07, 2019

View Opinion No. 19-0771

            Appeal from the Iowa District Court for Jones County, Jason A. Burns, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (6 pages)

            A mother appeals the termination of her parental rights to her children, challenging the sufficiency of the evidence supporting the statutory grounds for termination.  OPINION HOLDS: We affirm the decision of the juvenile court to terminate the mother’s parental rights.

Case No. 19-0831:  In the Interest of B.B., Minor Child

Filed Aug 07, 2019

View Opinion No. 19-0831

            Appeal from the Iowa District Court for Iowa County, Jason A. Burns, District Associate Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Carr, S.J.  Opinion by Carr, S.J.  (5 pages)

            The mother appeals the termination of her parental rights to B.B.  She argues the State failed to prove the statutory grounds for termination, termination is not in B.B.’s best interests, and the bond between them precludes termination.  OPINION HOLDS: Because of the mother’s ongoing substance abuse and the relative weakness of her bond with B.B., we affirm the termination.

Case No. 19-0836:  In the Interest of J.C., M.C., and J.C., Minor Children

Filed Aug 07, 2019

View Opinion No. 19-0836

            Appeal from the Iowa District Court for Pottawattamie County, Scott Strait, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (11 pages)

            A mother and father separately appeal the juvenile court’s termination of their parental rights.  OPINION HOLDS: We conclude termination was appropriate under Iowa law and consistent with the children’s best interests.

Case No. 19-0885:  In the Interest of C.L., Minor Child

Filed Aug 07, 2019

View Opinion No. 19-0885

            Appeal from the Iowa District Court for Woodbury County, Stephanie Forker Parry, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (6 pages)

            A mother appeals the juvenile court decision terminating her parental rights.  The mother contends the State failed to show the child could not be returned to her and termination of her parental rights is not in the child’s best interest.  OPINION HOLDS: We affirm.

Case No. 19-0887:  In the Interest of P.K., Minor Child

Filed Aug 07, 2019

View Opinion No. 19-0887

            Appeal from the Iowa District Court for Clayton County, Linnea M.N. Nicol, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (9 pages)

            A mother and father separately appeal the termination of their parental rights to one child.  They contend the State failed to show by clear and convincing evidence the statutory grounds for termination and that termination is in the child’s best interests.  They ask the court to find termination would be detrimental to the child because of their parent-child bond.  OPINION HOLDS: The State showed by clear and convincing evidence the statutory ground for termination and that termination is in the child’s best interests.  We find the termination will not be detrimental to the child because of the parent-child bond. 

Case No. 19-0920:  In the Interest of M.E., Minor Child

Filed Aug 07, 2019

View Opinion No. 19-0920

            Appeal from the Iowa District Court for Jackson County, Phillip T. Tabor, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  Tabor, J., takes no part.  (4 pages)

            A mother and a father separately appeal the juvenile court decision terminating their parental rights.  OPINION HOLDS: Grounds for termination exist and the parents failed to meet their burden that guardianship is in the child’s best interests such that termination of their parental rights should be avoided.

Case No. 19-0942:  In the Interest of P.M., Minor Child

Filed Aug 07, 2019

View Opinion No. 19-0942

            Appeal from the Iowa District Court for Black Hawk County, Daniel L. Block, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (6 pages)

            A mother appeals the termination of her parental rights to her child, P.M.  OPINION HOLDS: We find there is sufficient evidence in the record to support the termination, termination is in the child’s best interests, and the mother has not shown termination would be detrimental to the child due to the closeness of the parent-child relationship.  We affirm the decision of the juvenile court.

Case No. 19-0976:  In the Interest of J.B., Minor Child

Filed Aug 07, 2019

View Opinion No. 19-0976

            Appeal from the Iowa District Court for Carroll County, Joseph McCarville, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (6 pages)

            A father appeals the juvenile court’s adjudicatory and dispositional orders in a child-in-need-of-assistance proceeding.  OPINION HOLDS: We find the father failed to preserve error on his claims.  We affirm the court’s adjudicatory and dispositional orders.

Case No. 19-0986:  In the Interest of S.B., T.R., and P.R., Minor Children

Filed Aug 07, 2019

View Opinion No. 19-0986

            Appeal from the Iowa District Court for Appanoose County, William Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Scott, S.J.  Opinion by Scott, S.J.  (4 pages)

            A mother appeals the termination of her parental rights to her three children, contending (1) termination is not in the children’s best interests due to the closeness of the parent-child bond, (2) the State failed to make reasonable efforts at reunification, and (3) termination was premature because the youngest child’s father was not identified or offered services.  OPINION HOLDS: We affirm the termination of the mother’s parental rights.

Case No. 17-1402:  WILMINGTON SAVINGS FUND SOCIETY, FSB, d/b/a CHRISTIANA TRUST not in its Individual Capacity, but Solely as Trustee for BCAT 2015-13BTT v. SHEREE SMITH-MARTINEZ and MICHAEL MARTINEZ

Filed Jul 24, 2019

View Opinion No. 17-1402

            Appeal from the Iowa District Court for Linn County, Mary E. Chicchelly (summary judgment) and Patrick R. Grady (foreclosure), Judges.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Mullins, P.J.  (14 pages)

            Sheree Smith-Martinez and Michael Martinez appeal the district court’s grant of summary judgment in favor of Wilmington in a mortgage-foreclosure action.  OPINION HOLDS: The court had both subject-matter and personal jurisdiction over Wilmington, as assignee from Wells Fargo, which initially petitioned for foreclosure.  We also find Wilmington was not required to file the note and mortgage documents with the foreclosure petition.  The court did not abuse its discretion by considering the motion for summary judgment by nonoral submission.  There are no genuine issues of material fact and summary judgment was therefore appropriate.  Finally, we find the court’s order requiring the Martinezes to post a supersedeas bond was within the court’s authority and the amount was not excessive.  We deny the request for appellate attorney’s fees.  Costs on appeal are assessed one-half to Sheree Smith-Martinez and one-half to Michael Martinez.

Case No. 18-0134:  Jessie James Jones v. State of Iowa

Filed Jul 24, 2019

View Opinion No. 18-0134

            Appeal from the Iowa District Court for Clinton County, Tom Reidel, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (15 pages)

            Jessie Jones appeals the denial of his application for postconviction relief (PCR) following his conviction of sexual abuse in the second degree.  Jones claims the PCR court abused its discretion in denying his application for the appointment of an expert to testify in his PCR hearing regarding the standard of professional conduct for attorneys.  Additionally, Jones argues his PCR application should have been granted because his trial counsel breached an essential duty by (1) failing to call an expert to emphasize the lack of rape-kit evidence; (2) failing to contest evidence of Jones’s DNA found on the complaining witness’s “wrong” underwear or explain the limitations to DNA evidence; (3) failing to challenge whether the jury panel was made up of a fair cross section of the community; (4) wrongly advising Jones regarding possible impeachment based on his prior convictions and, as a result, wrongly advising Jones not to testify in his own defense.  He asks that we consider the cumulative effect of trial counsel’s errors.  OPINION HOLDS: Because the PCR court did not abuse its discretion in denying Jones’s request for the appointment of another attorney to act as a legal expert regarding his claims of ineffective assistance and because Jones has not established any of his claims of ineffective assistance of trial counsel, we affirm the denial of his application for PCR.

Case No. 18-0282:  Neuman v. State

Filed Jul 24, 2019

View Opinion No. 18-0282

            Appeal from the Iowa District Court for Black Hawk County, Rustin T. Davenport, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (6 pages)

            James Neuman appeals the dismissal of his lawsuit.  OPINION HOLDS: Although we could summarily dismiss the appeal based on Neuman’s violations of our appellate rules, we decline to do so.  We agree with the district court’s well-reasoned analysis and disposition of the case and affirm without further opinion, noting that we cannot grant Neuman the relief he requests even if he succeeded on appeal. 

Case No. 18-0322:  Devon Lukinich v. State of Iowa

Filed Jul 24, 2019

View Opinion No. 18-0322

            Appeal from the Iowa District Court for Des Moines County, Mark E. Kruse, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (16 pages)

            Devon Lukinich appeals the denial of his postconviction-relief (PCR) application.  He argues trial counsel provided ineffective assistance by (1) failing to have a ballistics expert testify; (2) failing to object when the prosecutor improperly stated during closing arguments that BB guns are dangerous weapons “under the law”; (3) failing to object to instructions and arguments that the shotguns stolen during the robberies met the “dangerous weapon” requirement; and (4) failing to present an expert witness at sentencing regarding Lukinich’s brain maturity.  OPINION HOLDS:  Trial counsel was not ineffective. No evidence suggests a different ballistics expert’s testimony would be meaningfully different from the testimony offered by the State’s expert.  No prejudice resulted from failing to object to the prosecutor’s statements during closing arguments.  Trial counsel did not breach an essential duty by failing to object to the shotgun-related jury instructions.  Trial counsel did not breach an essential duty by failing to hire a brain maturity expert witness because Lukinich was not a juvenile at the time the robberies occurred.  We affirm.

Case No. 18-0330:  State of Iowa, ex rel., I.M. and S.A. v. Darrell L. McBride

Filed Jul 24, 2019

View Opinion No. 18-0330

            Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Tabor, J.  (4 pages)

            Darrell McBride appeals the district court’s denial of his motion to quash the district court’s income-withholding order related to past due child support obligations, asserting he was denied due process and equal protection.  OPINION HOLDS:  Because McBride failed to preserve his constitutional claims, we affirm.

Case No. 18-0422:  In re the Marriage of Dirkx

Filed Jul 24, 2019

View Opinion No. 18-0422

            Appeal from the Iowa District Court for Carroll County, William C. Ostlund, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (13 pages)

            Nora Dirkx appeals the district court’s decree dissolving her marriage to Daniel Dirkx, challenging the district court’s calculation of their respective incomes, as well as its fusing of the child support and alimony awards.  OPINION HOLDS: Because we find the support orders to be inequitable, we remand for the court to amend the decree to fix traditional spousal support at $900 per month and to recalculate Daniel’s child support obligation.  We affirm the decree in all other respects.

Case No. 18-0571:  Ricky Lee Putman v. State of Iowa

Filed Jul 24, 2019

View Opinion No. 18-0571

            Appeal from the Iowa District Court for Fayette County, Richard D. Stochl, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.  Opinion by Greer, J.  (8 pages)

            A postconviction-relief applicant argues his trial counsel was ineffective for failing to adequately advise him on his right to testify in his own defense and for failing to keep him informed on the defense strategy, thereby depriving him of the ability to meaningfully participate in his defense.  The district court denied the application for postconviction relief.  OPINION HOLDS: On our review, we conclude trial counsel did not fail to perform an essential duty by advising his client not to testify or by exercising his judgment in choosing the defense strategy.

Case No. 18-0584:  Dan Charleston v. Polk County Civil Service Commission

Filed Jul 24, 2019

View Opinion No. 18-0584

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.  Opinion by Tabor, J.  (13 pages)

            Former Polk County Sergeant Dan Charleston appeals the district court decision affirming the Polk County Civil Service Commission’s (commission) affirmance of the Sheriff’s termination of Charleston’s employment.  OPINION HOLDS: Because we find substantial evidence supporting the commission’s decision, and because Charleston did not present direct and compelling evidence to overcome the presumption of honesty and integrity in the commissioners, we affirm the decision of the district court.

Case No. 18-0625:  In re the Marriage of Matherly

Filed Jul 24, 2019

View Opinion No. 18-0625

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (24 pages)

            Former spouses appeal and cross-appeal the financial provisions of their dissolution-of-marriage decree.  Trustee appeals the dismissal of claims against the husband relating to the wife’s trust.  OPINION HOLDS: We find Carl Matherly created a resulting trust in favor of his daughter, MaryBeth Slezak, when he transferred the assets of her trust into an investment account without her consent.  The resulting trust is not marital property and not subject to the court’s division of the marital estate.  We find the trial court’s division of the marital estate equitable, taking into consideration the factors under Iowa Code section 598.21(5) (2016) and the circumstances in this case.  We further find Steven Matherly’s claims against Carl relating to Maribel Matherly’s trust are barred under Iowa Code section 633A.4506.  Based upon these findings, we affirm the trial court’s decision in its entirety.  We decline to award appellate attorney fees.  Costs on appeal are assessed one-third to Maribel’s estate, one-third to Carl, and one-third to the Maribel Matherly Trust.

Case No. 18-0738:  NPZ, Inc. d/b/a ZTraps v. Ultra Image Powder Coating and Altra Corporation, d/b/a Ultra Image Powder Coating

Filed Jul 24, 2019

View Opinion No. 18-0738

            Appeal from the Iowa District Court for Crawford County, Steven J. Andreasen, Judge.  REVERSED AND REMANDED.  Heard by Doyle, P.J., and Tabor and Mullins, JJ.  Opinion by Tabor, J.  (18 pages)

            Live-trap manufacturer N.P.Z., Inc. (ZTraps) appeals the district court’s dismissal of its suit against Ultra Image Powder Coating (Altra), arguing the court erroneously concluded it lacked specific personal jurisdiction over Altra.  OPINION HOLDS: Because Altra purposely directed activities at Iowa, and because the litigation arises out of or relates to those activities, Altra’s contacts with Iowa are sufficient to subject it to personal jurisdiction.  And we do not believe subjecting Altra to suit in Iowa offends traditional notions of fair play and substantial justice.  Accordingly, we reverse the district court’s dismissal and remand for further proceedings.

Case No. 18-0742:  City of St. Lucas v. Dennis Herbert Langreck

Filed Jul 24, 2019

View Opinion No. 18-0742

            Appeal from the Iowa District Court for Fayette County, Richard D. Stochl and Margaret L. Lingreen, Judges.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (9 pages)

            Dennis Langreck appeals the district court’s decision ordering him to remove a building and pay damages.  OPINION HOLDS: We conclude the district court did not err by granting summary judgment to the City on Langreck’s counterclaims for quiet title or adverse possession.  We also conclude the court did not err in granting an injunction to the City requiring Langreck to move a shed.  We affirm the decision of the district court.

Case No. 18-0812:  Thaddeus Jeremiah Zimmerman v. Jamie Kay Zimmerman

Filed Jul 24, 2019

View Opinion No. 18-0812

            Appeal from the Iowa District Court for Johnson County, Kevin McKeever, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Vogel, S.J., and Gamble, S.J.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Thaddeus (T.J.) Zimmerman appeals the physical care provisions of the decree dissolving his marriage to Jamie Zimmerman.  OPINION HOLDS: We decline to modify the physical care arrangement or award T.J. additional visitation.  Because T.J. seeks a modification of the child support award only if we modify the physical care arrangement, we need not address this issue.  We affirm the dissolution decree in its entirety.

Case No. 18-0834:  Heartland Co-Op v. Ronald Nelson

Filed Jul 24, 2019

View Opinion No. 18-0834

            Appeal from the Iowa District Court for Crawford County, Tod Deck, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (16 pages)

            Ronald Nelson appeals from the judgment entered against him following a jury trial, where the jury determined he was the successor-in-interest and mere continuation of Broken Wing Farms, Inc., against which Heartland Co-op had obtained a judgment in 2014 for $810,021.95 with 3.25% interest.  On appeal, Nelson argues he was wrongly prevented from challenging Broken Wing’s debt to Heartland and that the district court erred by allowing the arbitration award against Broken Wing to have preclusive effect on the successor-liability claim against him personally.  He also disputes the district court’s rulings on two jury instructions and maintains the court should have granted his motion for directed verdict because there was insufficient evidence to submit the question of his successor liability to the jury.  OPINION HOLDS: Having reviewed each of Nelson’s claims and finding no reversible error, we affirm.

Case No. 18-0915:  State of Iowa v. Jamie Michael Ubben

Filed Jul 24, 2019

View Opinion No. 18-0915

            Appeal from the Iowa District Court for Grundy County, Jeffrey L. Harris, District Associate Judge, and Bradley J. Harris, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Blane, S.J.  Opinion by Blane, S.J.  (13 pages)

            A defendant challenges on appeal, after trial to the court on the minutes, the district court’s denial of his motion to suppress evidence of a gun found during an inventory search of his vehicle, and failure to suppress his refusal to take a breathalyzer test due to a claimed violation of his statutory right to make phone calls pursuant Iowa Code section 804.20 (2016).  OPINION HOLDS: The district court properly denied the motion to suppress: when it determined (1) the evidence of gun was admissible based on ultimate discovery rule; and (2) the officer complied with the requirements of section 804.20 and, even if the officer failed to comply, not suppressing evidence of denial of breathalyzer was harmless error in light of other overwhelming evidence of the defendant’s intoxication.

Case No. 18-0979:  Roberta R. Countryman, Trustee of the Ronald W. Woodbury Generation Skipping Trust v. Charles B. Lex

Filed Jul 24, 2019

View Opinion No. 18-0979

            Appeal from the Iowa District Court for Webster County, William C. Ostlund, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Tabor and Bower, JJ.  Opinion by Vaitheswaran, P.J.  (7 pages)

Charles B. Lex appeals from a ruling ordering him to fix obstructed drainage tile located below his property.  He contends the district court should not have found an easement on subsurface tiling from a neighboring property onto his property.  In the event of an affirmance, Lex asks that the ruling be amended to assess future costs associated with tile maintenance to the neighbor.  OPINION HOLDS: We affirm the district court’s order for injunctive relief in the form of replacement of the tiles.  Further, the issue of future tile costs was not raised or decided below, and therefore, resolution of the issue is premature.

Case No. 18-0989:  State of Iowa v. Carlos Augusto Ramirez Lopez

Filed Jul 24, 2019

View Opinion No. 18-0989

            Appeal from the Iowa District Court for Muscatine County, Henry W. Latham II, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Tabor, J., and Blane, S.J.  Opinion by Blane, S.J.  (9 pages)

            Defendant appeals the jury’s guilty verdict and the trial court’s denial of his motion for new trial based on his claim the complaining witness’s recantation of the allegation of sexual abuse at trial constitutes the greater weight of the evidence against his conviction.  OPINION HOLDS: The jury heard all of the evidence and determined the credibility of the witnesses regarding the recantation.  The trial court did not abuse its discretion in denying the defendant’s motion for new trial.

Case No. 18-1077:  Sara Jane Gustafson v. Tracey Bell and Shelly Towne

Filed Jul 24, 2019

View Opinion No. 18-1077

            Appeal from the Iowa District Court for Cass County, James M. Richardson, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (12 pages)

            Sara Gustafson appeals from the district court’s summary dismissal of her claims against Tracey Bell and Shelly Towne for defamation, abuse of process, malicious prosecution, and intentional infliction of emotional distress.  Gustafson maintains the district court erred because there are genuine issues of material fact in dispute that preclude the summary dismissal of each of her claims.  OPINION HOLDS: We agree with the district court that each of Gustafson’s claims fails as a matter of law.  We affirm the summary dismissal of each of her claims.

Case No. 18-1092:  Anthony Roland v. Annett Holdings, Inc.

Filed Jul 24, 2019

View Opinion No. 18-1092

            Appeal from the Iowa District Court for Polk County, Karen Romano, Judge.  AFFIRMED AND REMANDED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Gamble, S.J., takes no part.  Opinion by Tabor, J.  (13 pages)

            Annett Holdings appeals the district court’s order certifying Anthony Roland’s class action, arguing the case presents no common question of fact or law and individual issues predominate over those common to the class.  OPINION HOLDS: Because we find no abuse of discretion in the district court’s conclusion a question common to all class members, the legality of the Memorandum of Understanding, lies at the heart of the dispute, or in its conclusion that common issue predominates over the individual issues involved, we affirm and remand for further proceedings.

Case No. 18-1118:  Sheryl Schwab v. Jennifer Zahradnik

Filed Jul 24, 2019

View Opinion No. 18-1118

            Appeal from the Iowa District Court for Benton County, Lars G. Anderson, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (11 pages)

            Sheryl Schwab appeals the district court’s grant of summary judgment in her legal malpractice action against Jennifer Zahradnik.  Schwab claims Zahradnik provided negligent legal representation by failing to preserve her rights to her ex-spouse’s potential medical-malpractice claim, her right to file a loss-of-consortium claim, and a right to reimbursement for insurance premiums paid during the dissolution.  OPINION HOLDS: We affirm the district court dismissal of Schwab’s legal malpractice claims.

Case No. 18-1129:  Mau Family Limited Partnership v. Property Assessment Appeal Board and Dickinson County Board of Review

Filed Jul 24, 2019

View Opinion No. 18-1129

            Appeal from the Iowa District Court for Dickinson County, David A. Lester, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (14 pages)

            Property owner Mau Family Ltd. Partnership appeals the district court’s judicial-review order affirming the Property Assessment Appeal Board’s (PAAB) valuation of its properties between East Lake and West Lake Okoboji, arguing there were various errors in PAAB’s assessment and it is not supported by substantial evidence.  OPINION HOLDS: Because we find no merit in the alleged errors and the valuation was supported by substantial evidence, we affirm.

Case No. 18-1171:  JLL LLC v. City of Cedar Falls, et al.

Filed Jul 24, 2019

View Opinion No. 18-1171

            Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.  AFFIRMED.  Heard by Vogel, C.J., Vaitheswaran, J., and Mahan, S.J., but decided by Vaitheswaran, P.J., Mahan, S.J., and Vogel, S.J.  Opinion by Vaitheswaran, P.J.  (5 pages)

            JLL LLC appeals the district court’s order on its application for attorney fees and costs following a condemnation action by the City of Cedar Falls.  OPINION HOLDS: We affirm the district court’s ruling on taxation of costs.

Case No. 18-1200:  David and Rachael Sokol v. Robert and Eileen Morrissey

Filed Jul 24, 2019

View Opinion No. 18-1200

            Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (9 pages)

            Homebuyers David and Rachael Sokol appeal an adverse ruling in their lawsuit against seller Bob Morrissey alleging breach of the implied warranty of good and workerlike construction.  OPINION HOLDS: Because we find substantial evidence supporting the district court’s conclusion the Sokols could have reasonably identified the claimed defects before purchasing the home, we affirm.

Case No. 18-1294:  John L. Hintermeister v. Belin McCormick, PC, Nathan J. Barber, Riverview Hotel Development, LLC d/b/a Merrill Hotel & Conference Center, and MLC Land Company, LLC

Filed Jul 24, 2019

View Opinion No. 18-1294

            Appeal from the Iowa District Court for Muscatine County, Patrick McElyea, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (12 pages)

            Plaintiff John Hintermeister appeals the district court decision granting summary judgment to defendants Nathan Barber, Belin McCormick, P.C., Riverview Hotel Development, LLC, and MLC Land Company, LLC for his claims of tortious interference with business relations and intentional infliction of emotional distress. The district court determined the litigation privilege applied to the defendants’ conduct and granted their motion for summary judgment. OPINION HOLDS:  We determine the district court properly granted the defendants’ motion for summary judgment. 

Case No. 18-1399:  Cassandra Rena McConkey on Behalf of B.M. v. Kevin Charles Huisman

Filed Jul 24, 2019

View Opinion No. 18-1399

            Appeal from the Iowa District Court for Boone County, Steven J. Oeth, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., Vogel, S.J., and Gamble, S.J.  Opinion by Vaitheswaran, P.J.  (10 pages)

            Cassandra McConkey, the mother of a child, appeals the district court’s denial of her petition for relief from sexual abuse filed on behalf of the child against the child’s father, Kevin Huisman.  She contends (1) she met her burden of proving Huisman sexually abused the child and (2) the district court should have excluded Huisman’s expert witness for failure to disclose her.  OPINION HOLDS: We find the second issue dispositive.  Given the prejudice to McConkey of Huisman’s expert non-disclosure, we reverse and remand for a new trial on McConkey’s petition.  We also remand for a hearing on the reasonableness of McConkey’s attorney fee request.

Case No. 18-1410:  In re the Marriage of Nelson and Epari

Filed Jul 24, 2019

View Opinion No. 18-1410

            Appeal from the Iowa District Court for Dallas County, Randy V. Hefner, Judge.  AFFIRMED AS MODIFIED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            Alok Epari appeals the district court’s order modifying the physical care and visitation provisions of the decree dissolving his marriage with Renee Nelson, formerly Renee Epari.  OPINION HOLDS: We affirm the district court ruling granting Renee physical care of the children, and affirm as modified the visitation schedule. 

Case No. 18-1460:  Estate of Wilbur M. Arnold, William D. Arnold v. Bruce C. Arnold, Individually and as Executor, Karen L. Heuer, as Executor, Steven C. Arnold, as Executor, BCA Farmland Corporation, Arlys L. Arnold, Don R. Arnold, Lance J. Arnold, Mary A. Arnold, and Warren J. Arnold

Filed Jul 24, 2019

View Opinion No. 18-1460

            Appeal from the Iowa District Court for Hancock County, Colleen D. Weiland, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Tabor, J., and Vogel, S.J.  Opinion by Tabor, J.  (9 pages)

            William Arnold sued members of his family for tortious interference and undue influence resulting in him not receiving a bequest of the family farmland from his aunt and uncle.  The district court granted the defendants summary judgment.  William appeals.  OPINION HOLDS: Because the evidence William brings is no more than speculative about the influence the defendants may have had on the deceased, the grant of summary judgment was proper, and we affirm. 

Case No. 18-1491:  In re the Marriage of Olsen

Filed Jul 24, 2019

View Opinion No. 18-1491

            Appeal from the Iowa District Court for Wapello County, Myron L. Gookin, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Tabor, JJ.  Opinion by Potterfield, P.J.  (10 pages)

            James Olsen appeals the district court’s award of alimony to Deora Olsen.  James Olsen argues the district court improperly calculated both his and Deora’s incomes and improperly awarded Deora alimony of $300 per month for five years and then $250 per month for another five years.  Deora Olsen requests appellate attorney fees.  OPINION HOLDS: We affirm the district court’s award of alimony and its calculation of James’s income.  We decline to award Deora appellate attorney fees.

Case No. 18-1621:  In re the Marriage of Flemming

Filed Jul 24, 2019

View Opinion No. 18-1621

            Appeal from the Iowa District Court for Polk County, Scott J. Beattie, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (8 pages)

            Brandy Flemming-Jess appeals from an order modifying the child-support provisions of the decree dissolving her marriage to Matthew Flemming.  She argues Matthew is not entitled to a reduction of his child-support obligation because he voluntarily reduced his income.  OPINION HOLDS: Upon our de novo review, we agree modification is appropriate under the facts of this case and we affirm.

 

Case No. 18-1629:  Terry Tilton v. H.J. Heinz Company and Liberty Mutual Ins. Co.

Filed Jul 24, 2019

View Opinion No. 18-1629

            Appeal from the Iowa District Court for Polk County, Jeanie Vaudt, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Potterfield, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (10 pages)

            H.J. Heinz Company (Heinz) and its workers’ compensation insurance carrier appeal a district court ruling on Terry Tilton’s petition for judicial review of a determination of the workers’ compensation commissioner remanding the matter to the agency for further proceedings.  Heinz argues the district court erred in concluding the agency determination is unsupported by substantial evidence and was based upon an irrational, illogical, or wholly unjustifiable application of law to fact.  OPINION HOLDS: We find the agency determination that Tilton’s claim for benefits is barred by the application of Iowa Code section 85.23 (2015) was not the product of an irrational, illogical, or wholly unjustifiable application of law to fact.  We further find the agency determination of September 8, 2010 as the manifestation date is not supported by substantial evidence in the record.  We affirm in part and reverse in part the district court, and we remand the matter to the district court for the entry of an order to reverse the agency and remand for further proceedings consistent with this opinion.

Case No. 18-1654:  Tylan James DeBeir v. State of Iowa

Filed Jul 24, 2019

View Opinion No. 18-1654

            Appeal from the Iowa District Court for Floyd County, DeDra L. Schroeder, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  (3 pages)

            Tylan DeBeir appeals the denial of his application for postconviction relief (PCR) and alleges his PCR counsel provided ineffective assistance.  OPINION HOLDS: Our current record is insufficient to consider DeBeir’s ineffective-assistance claim.  We affirm the PCR court and preserve DeBeir’s claim for a possible future PCR proceeding.

Case No. 18-1692:  Romano Gaye v. Hot Service, LLC & Hasan Omerdic

Filed Jul 24, 2019

View Opinion No. 18-1692

            Appeal from the Iowa District Court for Polk County, Samantha Gronewald, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (4 pages)

            Hot Service, LLC and Hasan Omerdic appeal following a bench trial, alleging the trial court erred in its calculation of damages.  OPINION HOLDS: There is substantial evidence to support the trial court’s findings, and we discern no errors of law.

Case No. 18-1706:  Larry J. Hoover v. Andrew B. Reed

Filed Jul 24, 2019

View Opinion No. 18-1706

            Appeal from the Iowa District Court for Webster County, Thomas J. Bice, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (4 pages)

            Larry Hoover appeals the dismissal of his civil petition on untimely-service grounds, contending the court erred in concluding he did not establish good cause for the delay in service.  OPINION HOLDS: We affirm the dismissal of Hoover’s petition.

Case No. 18-1707:  In re the Marriage of Vesey

Filed Jul 24, 2019

View Opinion No. 18-1707

            Appeal from the Iowa District Court for Dallas County, Terry R. Rickers, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (9 pages)

            A father, Christopher Vesey, appeals the district court decision granting his former spouse Kelly's petition to modify their custody arrangement making her primary caregiver.  OPINION HOLDS: Because we find Kelly demonstrated a material and substantial change in circumstance not contemplated by the district court at the time of the original decree,  more or less permanent, in the best interest of the children, and she was better suited to continue taking care of the children's needs, we affirm the decision of the district court.

Case No. 18-1740:  Dexter Financial Services, Inc. v. Platt Laundromat LLC, Fakhreddin Bilbeisi, Naheel Bilbeisi, Ann Arbor Driving School Inc. and Platt Road Center LLC

Filed Jul 24, 2019

View Opinion No. 18-1740

            Appeal from the Iowa District Court for Linn County, Paul D. Miller, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Mullins, P.J.  (2 pages)

            Appellants appeal an adverse summary-judgment ruling.  OPINION HOLDS: We conclude summary judgment was proper.  We affirm. 

Case No. 18-1788:  Ralph G. Hemesath v. County Line Bar and Grill and Sean McDermott

Filed Jul 24, 2019

View Opinion No. 18-1788

            Appeal from the Iowa District Court for Dubuque County, Michael J. Shubatt, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (4 pages)

            Ralph Hemesath appeals the district court order granting summary judgment for the defendants on his negligence claim.  OPINION HOLDS: There is insufficient evidence to allow a reasonable person to find the defendants acted negligently.  The defendants are thus entitled to summary judgment. 

Case No. 18-1802:  John Dzian v. Menard, Inc.

Filed Jul 24, 2019

View Opinion No. 18-1802

            Appeal from the Iowa District Court for Clay County, David A. Lester, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (5 pages)

            John Dzian appeals from the district court’s pre-answer dismissal of his tort claim.  OPINION HOLDS: The district court did not err in granting the defendant’s pre-answer motion for dismissal when the Dzian failed to serve the defendant within ninety days and no good cause justified the delay.

Case No. 18-1808:  In re the Marriage of Parlee

Filed Jul 24, 2019

View Opinion No. 18-1808

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Bower, J.  (8 pages)

            Jonathan Parlee appeals the economic and spousal support provisions of the decree dissolving his marriage to Pamela Parlee.  Jon asserts the district court miscalculated the parties’ income, resulting in an inequitable spousal support award.  He also objects to the court’s valuations of property items, the property distribution, and the award of trial attorney fees.  Finally, he requests an award of appellate attorney fees.  OPINION HOLDS: The court carefully considered the parties’ positions and correctly applied the law.  On our de novo review, we find no failure to do equity and therefore affirm.  We deny his request for appellate attorney fees.

Case No. 18-1843:  State of Iowa v. Douglas Earl Hutchison

Filed Jul 24, 2019

View Opinion No. 18-1843

            Appeal from the Iowa District Court for Sioux County, Robert J. Dull, District Associate Judge.  REVERSED AND REMANDED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J. (6 pages)

            Douglas Hutchison appeals from judgment and sentence entered following the denial of his motion to suppress and a trial on the minutes of evidence.  OPINION HOLDS: We conclude the district court erred in applying the community-caretaking exception to deny the motion to suppress.  We reverse the conviction and remand. 

Case No. 18-1899:  In re the Marriage of Weiler

Filed Jul 24, 2019

View Opinion No. 18-1899

            Appeal from the Iowa District Court for Scott County, Stuart Werling, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  (6 pages)

            Matthew Weiler appeals the district court’s modification of the visitation provisions of the parties’ dissolution decree.  OPINION HOLDS: We find modification was appropriate.  We also affirm the award of Sherri’s trial attorney fees and award Sherri appellate attorney fees.

Case No. 18-1901:  In the Interest of C.M., Minor Child

Filed Jul 24, 2019

View Opinion No. 18-1901

            Appeal from the Iowa District Court for Benton County, Barbara H. Liesveld, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  (5 pages)

            The father appeals the termination of his parental rights in a private termination proceeding.  OPINION HOLDS: We conclude termination was proper under Iowa law and consistent with the child’s best interest.  Therefore, we affirm.

Case No. 18-1906:  In the Interest of K.B., Minor Child

Filed Jul 24, 2019

View Opinion No. 18-1906

            Appeal from the Iowa District Court for Marshall County, Paul G. Crawford, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (3 pages)

            K.B. appeals the juvenile court order requiring him to register on the Iowa Sex Offender Registry.  OPINION HOLDS: The juvenile court properly exercised its discretion in declining to waive or suspend the registration requirement. 

Case No. 18-2071:  Paten A. Proesch v. Gilbert J. Eggers

Filed Jul 24, 2019

View Opinion No. 18-2071

            Appeal from the Iowa District Court for Linn County, Sean W. McPartland, Judge.  AFFIRMED AND REMANDED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (9 pages)

            Gilbert Eggers appeals from a district court order awarding physical care of his child to the child’s mother, Paten Proesch.  OPINION HOLDS: Because the district court ruled on and decided the physical care issue, we agree with Gilbert that the issue was properly preserved for appellate review.  Upon our de novo review of the record, we find the district court gave thorough reasons for why it determined it is in the child’s best interests to be placed in Paten’s physical care.  Considering all of the relevant factors and the court’s credibility findings, we agree with its determination.  Consequently, we affirm the court’s order placing physical care of the child with Paten.  And we agree with Paten that Gilbert failed to preserve his claim of constitutional error for appellate review because he did not raise the issue before the district court or file an Iowa Rule of Civil Procedure 1.904(2) motion to amend or enlarge the court’s ruling asking the court to address his claim of constitutional error.  We therefore do not address the issue.  Finally, we conclude Paten should be awarded attorney fees for having to defend herself here, and we remand to the district court to determine the amount of appellate attorney fees to be awarded to Paten.  Any costs on appeal are assessed to Gilbert.

Case No. 18-2115:  Bartley Daniel Black v. Stacia Leigh Newlin

Filed Jul 24, 2019

View Opinion No. 18-2115

            Appeal from the Iowa District Court for Polk County, Samantha Gronewald, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (4 pages)

            A mother appeals from the decree of paternity, custody, visitation, and support.  OPINION HOLDS: On our de novo review, we affirm the award of joint physical care.

Case No. 18-2126:  Carroll Area Nursing Services and The Cincinnati Insurance Companies v. Amy Malloy

Filed Jul 24, 2019

View Opinion No. 18-2126

            Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Scott, S.J.  Opinion by Scott, S.J.  (8 pages)

            An employer appeals the district court decision affirming the award of healing period benefits by the workers’ compensation commissioner.  OPINION HOLDS:  We find there is substantial evidence in the record to support a finding the employee came within the personal-vehicle exception to the coming-and-going rule and was not engaged in a deviation from the course of employment at the time of the accident.  We affirm the district court and the workers’ compensation commissioner.

Case No. 18-2246:  Mid-American Glazing Systems, Inc. v. Cladding Corporation

Filed Jul 24, 2019

View Opinion No. 18-2246

            Appeal from the Iowa District Court for Story County, Bethany J. Currie, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.  Opinion by Greer, J.  (5 pages)

            The district court dismissed an Iowa corporation’s breach-of-contract claim because a forum selection clause in the contract designated the state or federal court in Virginia as the proper forum.  On appeal, the corporation challenges the clause’s enforceability.  OPINION HOLDS: We conclude the forum selection clause is enforceable and this Iowa action should be dismissed. 

Case No. 19-0162:  In the Interest of T.P., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0162

            Appeal from the Iowa District Court for Page County, Amy L. Zacharias, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  (11 pages)

            A mother appeals the juvenile court’s termination of her parental rights.  OPINION HOLDS: We conclude termination was appropriate under Iowa law and consistent with the child’s best interest.

Case No. 19-0255:  In the Interest of S.K., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0255

            Appeal from the Iowa District Court for Pottawattamie County, Scott Strait, District Associate Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Blane, S.J.  Opinion by Blane, S.J.  (5 pages)

            A mother appeals the termination of her parental rights to one child, challenging the statutory grounds for termination.  OPINION HOLDS: We conclude the State showed by clear and convincing evidence that the child cannot be returned to the mother’s custody at this time.  Accordingly, we affirm termination of her parental rights. 

Case No. 19-0352:  In the Interest of A.W. and B.W., Minor Children

Filed Jul 24, 2019

View Opinion No. 19-0352

            Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor, District Associate Judge.  REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Tabor, J., takes no part.  Opinion by Potterfield, P.J.  (9 pages)

            The guardian ad litem for A.W. and B.W., the minor children at issue, appeals the juvenile court’s denial of the petition to modify the dispositional order and dismissal of the children-in-need-of-assistance (CINA) adjudication.  OPINION HOLDS: We agree the CINA adjudications should not have been dismissed; we reverse the juvenile court’s ruling dismissing the CINA adjudications.  Additionally, though the State met the grounds for modification at the time of the hearing, we do not believe making a change now based on the facts and circumstances from several months ago is in the children’s best interests.  We remand for a hearing on the motion to modify the dispositional order; the juvenile court is to determine the appropriate placement of the children on the facts existing at the time of the new hearing.

Case No. 19-0413:  In the Interest of W.C., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0413

            Appeal from the Iowa District Court for Allamakee County, Linnea M.N. Nicol, District Associate Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (6 pages)

            J.B. appeals the juvenile court’s decision denying his request to intervene in child in need of assistance proceedings.  OPINION HOLDS: J.B. did not preserve error on his claims regarding discovery or the recusal of the judge.  We determine the juvenile court did not err in denying J.B.’s application to intervene.  We affirm.

Case No. 19-0557:  In the Interest of A.B., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0557

            Appeal from the Iowa District Court for Pottawattamie County, Charles D. Fagan, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            A mother appeals a district court order terminating her parental rights to her child, born in 2016.  She contends (1) the record lacks clear and convincing evidence to support the grounds for termination cited by the court; (2) the department of human services did not make reasonable reunification efforts; and (3) termination is not in the child’s best interests.  OPINION HOLDS: We affirm the termination of the mother’s parental rights to her child.

Case No. 19-0598:  In the Interest of M.M., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0598

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            A mother appeals a district court order terminating her parental rights to her child, contending the record lacks clear and convincing evidence to support the grounds for termination cited by the court.  OPINION HOLDS: We conclude the State proved that the child cannot be returned to the mother’s custody as required by Iowa Code section 232.116(1)(h) (2018).  We affirm the juvenile court’s termination of her parental rights to the child.

Case No. 19-0605:  In the Interest of A.H., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0605

            Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  (8 pages)

            A mother appeals the juvenile court’s order terminating her parental rights.  OPINION HOLDS: We conclude termination was proper under Iowa law and consistent with the child’s best interest.  We affirm.   

Case No. 19-0628:  In the Interest of I.D., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0628

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (7 pages)

            A mother appeals the termination of her parental rights to her child.  OPINION HOLDS: The State proved the grounds for termination by clear and convincing evidence, and termination is in the child’s best interests.  We decline to apply any of the statutory permissive factors to avoid termination, and we deny the mother’s request for a six-month extension. 

Case No. 19-0630:  In the Interest of K.A., K.M., and K.P., Minor Children

Filed Jul 24, 2019

View Opinion No. 19-0630

            Appeal from the Iowa District Court for Scott County, Cheryl Traum, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Potterfield, P.J.  (7 pages)

            A mother appeals the district court’s separate orders terminating her parental rights to her three children K.A., K.M., and K.P.  She argues terminating her parental rights is not in the children’s best interest and she should have instead been given additional time to work toward reunification.  OPINION HOLDS: On de novo review, we conclude termination of the mother’s parental rights to the children is in their best interest.  The mother has not addressed her substance-abuse issue.  She has also failed to address concerns over mental health, domestic violence, and housing.  There is no evidence termination would be detrimental to the children.  No evidence suggests the mother would be able to correct these issues if given another six months to work toward reunification.  We affirm.

Case No. 19-0650:  In the Interest of K.G., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0650

            Appeal from the Iowa District Court for Benton County, Cynthia S. Finley, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Tabor, J., and Scott, S.J.  Opinion by Scott, S.J.  (6 pages)

            A mother appeals an order modifying the permanency goal in a child-in-need-of-assistance proceeding.  OPINION HOLDS:  We conclude the modification of the permanency goal to placement with the father is in the best interests of the child and is supported by clear and convincing evidence.  The juvenile court did not abuse its discretion in denying the mother’s request to submit written closing arguments.  We affirm the decision of the juvenile court.

Case No. 19-0715:  In the Interest of I.P., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0715

            Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Tabor, J.  (11 pages)

            Foster parents Brad and Bobbi argue the juvenile court should have granted their motion to remove the Iowa Department of Human Services (DHS) as I.P.’s guardian.  OPINION HOLDS: Because we agree with the juvenile court’s conclusion the DHS acted in I.P.’s best interests, we affirm.

Case No. 19-0719:  In the Interest of J.B. and J.B., Minor Children

Filed Jul 24, 2019

View Opinion No. 19-0719

            Appeal from the Iowa District Court for Poweshiek County, Rose Ann Mefford, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  (15 pages)

            A mother appeals the juvenile court’s order terminating her parental rights.  OPINION HOLDS: We conclude termination was proper under Iowa law and consistent with the children’s best interests.  We affirm.   

Case No. 19-0727:  In the Interest of A.G., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0727

            Appeal from the Iowa District Court for Linn County, Cynthia S. Finley, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (9 pages)

            A mother and a father separately appeal the termination of their parental rights to their child, A.G.  OPINION HOLDS: Grounds for termination have been shown by clear and convincing evidence.  An extension of time to seek reunification is not warranted, termination of parental rights is in the child’s best interests, and no permissive factor weighs against termination.  We therefore affirm.

Case No. 19-0769:  In the Interest of B.W. and E.W., Minor Children

Filed Jul 24, 2019

View Opinion No. 19-0769

            Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            A mother appeals the termination of her parental rights to her two children, raising claims: the State failed to prove the grounds for termination cited by the juvenile court, termination is not in the children’s best interests, and the juvenile court should have declined to terminate her parental rights because the children were placed with a relative.  OPINION HOLDS: We affirm the termination of the mother’s parental rights to her children.

Case No. 19-0772:  In the Interest of J.M., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0772

Juvenile Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (6 pages)

            A mother appeals a child in need of assistance (CINA) permanency order.  OPINION HOLDS:  We find the juvenile court properly denied the mother’s request to dismiss or modify the permanency order placing the child in the care of the father.  We affirm the decision of the juvenile court.

Case No. 19-0777:  In the Interest of I.D. and S.D., Minor Children

Filed Jul 24, 2019

View Opinion No. 19-0777

            Appeal from the Iowa District Court for Scott County, Mark Fowler, Judge.  AFFIRMED.  Considered by Potterfield, P.J., May, J., and Blane, S.J.  Opinion by Blane, S.J.  (4 pages)

            The father appeals the termination of his parental rights to his biological child, I.D., and his legal child, S.D.  The juvenile court terminated his parental rights to both children pursuant to Iowa Code section 232.116(1)(f) and (l) (2018).  The father does not contest the statutory grounds for termination; he argues termination is not in the children’s best interests because they share a bond with him.  He also asks for additional time to work toward reunification.  OPINION HOLDS: Termination is in the children’s best interests, and the father has not established that the children are so bonded to him that we should avoid termination of his parental rights.  Additionally, because we cannot say the father could safely parent the children if given an extension to work toward reunification, we affirm.

Case No. 19-0795:  In the Interest of L.T., A.T., and D.T., Minor Children

Filed Jul 24, 2019

View Opinion No. 19-0795

            Appeal from the Iowa District Court for Linn County, Cynthia S. Finley, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Potterfield, P.J.  (11 pages)

            The mother’s rights to these children were at issue at a termination-of-parental-rights hearing in November 2016.  After an extended delay, the juvenile court entered a written order in July 2018, terminating the mother’s parental rights.  The mother appealed, and in In re L.T., 924 521, 530 (Iowa 2019), our supreme court reversed the termination and remanded to the juvenile court.  The termination hearing on remand took place in April 2019, and the juvenile court again found the grounds to terminate the mother’s parental rights.  The mother appeals, arguing the Iowa Department of Human Services (DHS) failed to make reasonable efforts until the July 2018 termination order was entered and termination of her rights is not in the children’s best interests.  She also asks for additional time to work toward reunification with the children.  OPINION HOLDS: Although DHS discontinued services aimed at reunification before the written order was entered, the department did not fail to fulfill its reasonable-efforts obligation.  Additionally, we cannot further delay permanency for these children, as termination of the mother’s parental rights is in their best interests.  We affirm.

Case No. 19-0799:  In the Interest of R.S., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0799

            Appeal from the Iowa District Court for Fremont County, Eric J. Nelson, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Greer, JJ.  Opinion by Greer, J.  (7 pages)

            The juvenile court terminated the mother’s parental rights to her child, R.S., under Iowa Code section 232.116(1)(f) (2019).  On appeal, the mother argues: (1) termination is not required because the child was in the father’s care, (2) termination is not in the child’s best interests, (3) the Iowa Department of Human Services failed to provide appropriate services, and (4) the exception in Iowa Code section 232.116(3)(a) should apply since the father has legal custody.  OPINION HOLDS: Because filing a termination petition was permissible while R.S. remained in the father’s care and termination is in R.S.’s best interests, we affirm the termination of the mother’s parental rights.

Case No. 19-0804:  In the Interest of D.D., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0804

            Appeal from the Iowa District Court for Polk County, Glenn E. Pille, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (13 pages)

            A father appeals the termination of his parental rights to his child.  OPINION HOLDS: Under the facts and circumstances of this case, the State provided reasonable services for reunification and the child could not be returned to the father’s care at the time of the termination-of-parental-rights hearing.  And even considering the father’s parole, additional time under section 232.104(2)(b) is unjustified.  We therefore affirm the order terminating the father’s parental rights.

Case No. 19-0883:  In the Interest of R.F., I.F., and A.F., Minor Children

Filed Jul 24, 2019

View Opinion No. 19-0883

            Appeal from the Iowa District Court for Blackhawk County, David F. Staudt, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (7 pages)

            A mother appeals the termination of her parental rights to her three minor children.  The mother argues the State did not make reasonable efforts at reunification and challenges the sufficiency of the evidence underlying the statutory grounds for termination cited by the juvenile court.  OPINION HOLDS: We conclude the mother failed to preserve error on her reasonable-efforts challenge and the State met its burden for termination.  We affirm the termination of the mother’s parental rights.

Case No. 17-1801:  Jade E. Robinson and Shannon K. Robinson v. William A. Welp and Joyce A. Welp

Filed Jul 03, 2019

View Opinion No. 17-1801

            Appeal from the Iowa District Court for Marshall County, Steven J. Oeth, Judge.  AFFIRMED ON BOTH APPEALS AND REMANDED.  Heard by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Potterfield, P.J.  (18 pages)

            Jade and Shannon Robinson purchased the home of William and Joyce Welp; the Robinsons later initiated suit against the Welps, claiming the Welps failed to disclose a number of known problems with the home.  The district court determined the Welps had a duty to disclose a snake problem pursuant to Iowa Code chapter 558A (2016) and the purchase agreement, which they breached; the court awarded the Robinsons damages in the amount of $64,216.42 and costs and attorney fees of $55,212.  On appeal, the Welps challenge the district court’s ruling, arguing the evidence does not support that there was a snake problem while they owned the home or that they had actual knowledge of any such problem.  In the alternative, they argue newly-discovered evidence presented in their post-judgment petition to vacate requires that the court’s judgment be vacated or modified.  Additionally, they contest the district court’s determination of “reasonable attorney fees,” maintaining the award of fees should be further reduced.  On cross-appeal, the Robinsons maintain the district court should have also determined that the Welps failed to properly disclose problems with leaks in an in-ground pool; they ask for additional damages.  They also urge us to find that the district court abused its discretion in reducing their attorney-fee request and ask for an award of appellate attorney fees.  OPINION HOLDS: We affirm the district court’s ruling that the Welps breached their duty to disclose a snake problem on the property in question but did not breach a duty to inform the Robinsons of a past pool leak.  We also affirm the district court’s denial of the Welps’ motion to vacate and the reduced award of attorney fees to the Robinsons.  Because the purchase agreement does not preclude the recovery of appellate attorney fees, we remand to the district court for the limited purpose of an evidentiary hearing on and the fixing of appellate attorney fees.

Case No. 18-0004:  Heidi McFarland and Rachel McFarland v. Jason Rieper

Filed Jul 03, 2019

View Opinion No. 18-0004

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  REVERSED AND REMANDED.  Heard by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Vogel, S.J.  (9 pages)

            Jason Rieper appeals and Heidi and Rachel McFarland cross-appeal from the jury verdict in favor of the McFarlands on their legal-malpractice claim.  Rieper represented the McFarlands in an unsuccessful adoption.  Rieper asserts emotional distress damages are not available here, the McFarlands did not establish a prima facie case for legal malpractice, and a new trial or a reduction or remittitur of the jury award is warranted due to prejudicial statements and violations of the court’s rulings.  On cross-appeal, the McFarlands assert, in the event of a new trial, evidence of the baby’s death should be admitted and we should clarify the standards for evaluating juror bias.  OPINION HOLDS: The McFarlands have not shown Rieper engaged in illegitimate conduct, as required to recover emotional distress damages in a legal-malpractice claim.  We therefore reverse and remand for entry of judgment in favor of Rieper.  Because this issue is dispositive, we do not reach the parties’ other issues.

Case No. 18-0303:  State of Iowa v. John Matthew Osborn

Filed Jul 03, 2019

View Opinion No. 18-0303

            Appeal from the Iowa District Court for Pottawattamie County, Susan K. Christensen, Judge.  AFFIRMED.  Considered by Mullins, P.J., Danilson, S.J., and Vogel, S.J.  Opinion by Danilson, S.J. (13 pages)

            John Osborn appeals from judgment and sentences imposed upon his convictions for four counts of sexual abuse in the third degree, in violation of Iowa Code sections 709.1 and 709.4(2)(c)(4) (2014).  Osborn contends his trial counsel was ineffective in failing to object to a witness’s testimony as beyond the scope of the minutes and the district court abused its discretion in admitting as an exhibit the criminal complaint and attached affidavit, which was offered to refute Osborn’s inference investigators rushed to judgment.  He also asserts the court imposed an illegal sentence (four concurrent terms of imprisonment), arguing multiple convictions on four counts of sexual abuse where the marshalling instructions are identical must be merged.  OPINION HOLDS: We preserve the ineffective-assistance-of-counsel claims for possible postconviction-relief proceedings.  The district court did not abuse its discretion in allowing the admission of the criminal complaint as rebuttal to the defense’s claim of a rush to judgment.  We reject the claim that an illegal sentence was imposed.

Case No. 18-0342:  State of Iowa v. John Wilfred Gibson, Jr.

Filed Jul 03, 2019

View Opinion No. 18-0342

            Appeal from the Iowa District Court for Monona County, Jeffrey L. Poulson, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Mullins, P.J., Bower, J., and Blane, S.J.  Opinion by Blane, S.J. (8 pages)

            John Gibson appeals his convictions for being a felon in possession of a firearm, assault on a peace officer, two counts of child endangerment, and two counts of assault while participating in a felony.  OPINION HOLDS:  We determine Gibson’s sentence for being a felon in possession of a firearm should not be merged with his sentences for assault while participating in a felony.  We find the district court did not abuse its discretion in deciding the sentence for being a felon in possession of a firearm should run consecutively to Gibson’s other sentences, which run concurrently.  On the matter of mandatory minimum sentences for assault on a peace officer and assault while participating in a felony, we remand for a partial resentencing hearing to allow the court to exercise its discretion to determine whether the five-year minimum sentence should be imposed.

Case No. 18-0524:  State of Iowa v. Eduard Nickolas Lester

Filed Jul 03, 2019

View Opinion No. 18-0524

            Appeal from the Iowa District Court for Story County, Adria A.D. Kester, Judge.  SENTENCES VACATED IN PART.  REMANDED FOR RESENTENCING.  Considered by Doyle, P.J., May, J., and Carr, S.J.  Opinion by Carr, S.J.  (7 pages)

            Eduard Lester appeals his sentences for two counts of robbery in the second degree and two counts of burglary in the first degree.  He appeals the provisions of his sentences that impose: fines for his robbery charges without suspending the fines, consecutive sentences, court costs and attorney fees, and law enforcement initiative surcharges.  OPINION HOLDS: We find the court did not abuse its discretion in imposing the fines or in running his sentences consecutively.  However, the court erred in imposing costs and fees without evaluating his reasonable ability to pay and in imposing law enforcement initiative surcharges for his robbery charges without statutory authorization.  Therefore, we vacate his sentences in part and remand for resentencing.

Case No. 18-0527:  In the Matter of the Estate of Helen E. Houser, Deceased.

Filed Jul 03, 2019

View Opinion No. 18-0527

            Appeal from the Iowa District Court for Johnson County, Patrick R. Grady, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., Doyle, J., and Vogel, S.J.  Opinion by Vaitheswaran, P.J.  (12 pages)

            A mother of four children died, leaving a significant estate to be distributed to her children under the terms of her will.  In this second appeal, Bonnie Forbes challenges the district court’s (A) reduction of her share of the estate, (B) refusal to reduce Woodrow Houser’s share of the estate, (C) allocation of executor fees, and (D) refusal to pay certain charges incurred for upkeep of estate assets.  OPINION HOLDS: We affirm the portion of the district court order awarding Forbes thirty-five percent of the ordinary executor fee and Lawrence Houser sixty-five percent of the fee.  We reverse the portion of the order reducing Forbes’ distributive share by $52,837.81 and remand for entry of an order increasing her distributive share by that amount.  We reverse the portion of the order declining to reduce Woodrow Houser’s distributive share by amounts owing on promissory notes and remand for entry of an order reducing his distributive share by $36,557.71 after reduction by the $38,272.29 contained in the UICCU savings account.  We reverse the denial of the charges submitted by Forbes’ son-in-law, son, and husband and remand for entry of an order requiring the executor to pay the enumerated charges.

Case No. 18-0561:  Undray Jermaine Reed v. State of Iowa

Filed Jul 03, 2019

View Opinion No. 18-0561

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  REVERSED AND REMANDED.  Considered by Doyle, P.J., May, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (8 pages)

            Undray Reed appeals the district court decision denying his application for postconviction relief.  OPINION HOLDS:  The court found Reed established a claim of ineffective assistance of appellate counsel in his postconviction-relief proceeding, but improperly concluded it did not have authority to grant Reed relief.  We reverse the decision of the district court and remand for further proceedings.

Case No. 18-0615:  Estate of Joshua Naeve, By Its Administrators, Thad Neave and Nancye Naeve, Thad Naeve, Individually and Nancye Naeve, Individually v. FBL Financial Group, Inc.

Filed Jul 03, 2019

View Opinion No. 18-0615

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Doyle, P.J., and Tabor and Mullins, JJ.  Opinion by Mullins, J.  (15 pages)

            Appellants appeal a district court order granting FBL Financial Group, Inc.’s motion to dismiss appellants’ civil petition at law forwarding claims of bad faith, interference with contract, and conspiracy or aiding and abetting bad faith.  OPINION HOLDS: We affirm the dismissal of the appellants’ bad-faith claims.  We reverse dismissal of the interference-with-contract claim.  We remand for further proceedings.

Case No. 18-0864:  Doyle Kinzenbaw v. Eric Tindal and Nidey, Erdahl, Tindal & Fisher, PLC

Filed Jul 03, 2019

View Opinion No. 18-0864

            Appeal from the Iowa District Court for Linn County, Sean W. McPartland, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (4 pages)

            The plaintiff in a legal malpractice suit appeals from a grant of summary judgment to the attorney.  He claims the district court erred in finding the dispositive issue of the underlying dispute was fully litigated, and approved by this court, and therefore barred his current claim through issue preclusion.  The plaintiff asserts his case meets an exception to issue preclusion.  OPINION HOLDS: We agree with the district court's detailed and well-reasoned opinion.  Accordingly, we affirm the order granting summary judgment under Iowa Court Rule 21.26(1)(d).

Case No. 18-1013:  Franklin Harris v. State of Iowa

Filed Jul 03, 2019

View Opinion No. 18-1013

            Appeal from the Iowa District Court for Des Moines County, Michael J. Schilling, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (10 pages)

            Franklin Harris appeals the summary disposition of his actual innocence claim asserted in his third application for postconviction relief.  Harris argues the district court erred because there are genuine issues of material in fact that preclude the summary dismissal of his claim.  OPINION HOLDS: We find the district court carefully reviewed the record under the standards for summary disposition and correctly concluded summary disposition was proper.  We further find Harris has not met his burden to prove actual innocence by clear and convincing evidence.  We affirm the summary dismissal of Harris’s actual innocence claim.

Case No. 18-1068:  Dr. Allen Diercks v. The City of Bettendorf, Iowa, and Kristine Stone

Filed Jul 03, 2019

View Opinion No. 18-1068

            Appeal from the Iowa District Court for Scott County, Mary E. Howes, Judge.  REVERSED AND REMANDED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (19 pages)

            Allen Diercks appeals the district court’s denial of his claim based on the alleged failure of the City of Bettendorf and City Attorney Kristine Stone to provide documents pursuant to Iowa Code chapter 22 (2017) (the Iowa Open Records Act).  OPINION HOLDS: Because the district court erred in concluding the records requested were not public records, we reverse and remand for further proceedings.  We leave it to the district court on remand to consider the City’s claims of privilege and that statutory exceptions to disclosure exist. 

Case No. 18-1108:  In re the Marriage of Deutmeyer

Filed Jul 03, 2019

View Opinion No. 18-1108

            Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  (3 pages)

            A petitioner appeals the denial of his petition to modify the custodial provisions of a dissolution decree.  OPINION HOLDS: The custodial provisions should not be modified because petitioner failed to show he could provide the child at issue with superior care.

Case No. 18-1188:  State of Iowa v. Brandon Ray Ross

Filed Jul 03, 2019

View Opinion No. 18-1188

            Appeal from the Iowa District Court for Calhoun County, Kurt L. Wilke, Judge.  SENTENCE VACATED AND REMANDED FOR RESENTENCING.  Considered by Potterfield, P.J., Doyle, J., and Gamble, S.J.  Opinion by Gamble, S.J. (6 pages)

            Brandon Ross appeals the sentence imposed following the revocation of three deferred judgments.  Ross claims the sentencing court did not exercise its discretion in revoking deferred judgment and imposing prison sentences.  OPINION HOLDS: The district court failed to exercise its sentencing discretion and, instead, applied a fixed sentencing policy.  We vacate the sentencing order and remand for resentencing.

Case No. 18-1213:  In re the Marriage of Timmons

Filed Jul 03, 2019

View Opinion No. 18-1213

            Appeal from the Iowa District Court for Clarke County, Richard B. Clogg, Judge.  AFFIRMED AND REMANDED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Mullins, P.J.  (2 pages)

            Matthew Timmons appeals the denial of his petition to modify the child- and spousal-support provisions of a dissolution-of-marriage decree and the award of attorney fees to Kari Timmons.  OPINION HOLDS: We affirm without opinion pursuant to Iowa Rule of Appellate Procedure 6.1203(a).  We remand the matter to the district court to determine the reasonable amount of appellate attorney fees to be paid by Matthew to Kari and to enter judgment against Matthew and in favor of Kari in that amount.

Case No. 18-1240:  Jar Farms LTD, Paul W. Thieschafer, Individually, and Paul W. Thieschafer, Amy Thieschafer and Paul Thieschafer as Co-Trustees of the Bernus A. Thieschafer Family Trust v. Certified Materials, Inc.

Filed Jul 03, 2019

View Opinion No. 18-1240

            Appeal from the Iowa District Court for Mills County, Jeffrey L. Larson, Judge.  AFFIRMED IN PART AND REVERSED IN PART.  Heard by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (11 pages)

            Certified Materials, Inc. appeals the district court order granting JAR Farms, LTD a prescriptive easement over portions of its property.  OPINION HOLDS: I. JAR Farms failed to establish by clear and convincing evidence that express notice was given of any claim of right to any portion of the land now owned by Certified Materials.  Because the lack of this requisite element is fatal to JAR Farms’s claim to a prescriptive easement, we reverse the district court on this issue.  II. We reject the claim that JAR Farms sought a temporary injunction in bad faith and, therefore, affirm the district court on this issue.  III. We decline to award appellate attorney fees.

Case No. 18-1258:  State of Iowa v. Kevin Dwayne Garvin

Filed Jul 03, 2019

View Opinion No. 18-1258

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  ORDER VACATED AND REMANDED.  Considered by Vaitheswaran, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (4 pages)

Kevin Garvin appeals restitution-related orders following his criminal conviction.  OPINION HOLDS: We vacate the court’s imposition of correctional fees against Garvin pending completion of a final restitution order and a subsequent assessment of his reasonable ability to pay.  We remand the matter to the district court for receipt of a final restitution plan and a determination of Garvin’s reasonable ability to pay.

Case No. 18-1271:  In the Matter of the Trust Under the Will of W.H. Daubendiek

Filed Jul 03, 2019

View Opinion No. 18-1271

            Appeal from the Iowa District Court for Palo Alto County, Donald E. Courtney, Judge.  AFFIRMED.  Heard by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  (6 pages)

            Billy Joe Daubendiek, a/k/a Billy Joe Daubendeck, appeals a district court ruling concluding he has no interest in a trust created by W.H. Daubendiek’s will.  OPINION HOLDS:  Under the terms of the will, the beneficiaries of the trust are (1) the named beneficiaries and (2) their “lawful bodily issue.”  Billy Joe is the adopted child of a named beneficiary.  As a matter of law, the phrase “lawful bodily issue” only extends to biological children, not adopted children.  Therefore, Billy Joe has no interest in the trust.

Case No. 18-1279:  Employers Mutual Casualty Company v. John H. Smith

Filed Jul 03, 2019

View Opinion No. 18-1279

            Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.  REVERSED AND REMANDED.  Heard by Vogel, C.J., Vaitheswaran, J., and Mahan, S.J., but decided by Vaitheswaran, P.J., Mahan, S.J., and Vogel, S.J.  Opinion by Mahan, S.J.  (8 pages)

            Employers Mutual Casualty Company appeals from the ruling granting John H. Smith summary judgment in its breach-of-contract action.  OPINION HOLDS: The district court erred in entering summary judgment for Smith because there is no identity of issues that would warrant the application of defensive issue preclusion.  We reverse and remand for further proceedings.   

Case No. 18-1283:  State of Iowa v. Thomas Jeremy Lopez

Filed Jul 03, 2019

View Opinion No. 18-1283

            Appeal from the Iowa District Court for Tama County, Patrick R. Grady, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (5 pages)

            Thomas Lopez appeals his conviction of possession of a controlled substance, third or subsequent offense, and the sentence imposed.  He argues the district court erred in enhancing his sentence with a conviction for which he had not completed his sentence.  OPINION HOLDS: We affirm Lopez’s conviction and sentence. 

Case No. 18-1415:  Angela Chapman and Kristine Ford v. Barbara Brechler

Filed Jul 03, 2019

View Opinion No. 18-1415

            Appeal from the Iowa District Court for Clay County, Don E. Courtney, Judge.  AFFIRMED.  Heard by Potterfield, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (10 pages)

            Barbara Brechler appeals from the district court’s summary judgment rulings overruling her motion and sustaining the motion of Angela Chapman and Kristine Ford, her deceased husband Carl’s daughters.  OPINION HOLDS: First, we find Barbara was a proper party to the proceeding because Barbara’s right to be Carl’s designated beneficiary of his retirement account was in dispute.  Second, we agree with the district court that, under the terms of Carl and his ex-wife’s 2003 dissolution decree, to which Carl agreed, Carl’s daughters were to be named beneficiaries of the retirement account and therefore entitled to whatever funds, if any, remained in the account upon his death.  Carl’s changing the account’s beneficiary designation to Barbara was in violation of that decree.  Consequently, the district court did not error in its summary judgment rulings.  We therefore affirm the district court’s ruling sustaining Carl’s daughters’ motion for summary judgment and overruling Barbara’s motion for summary judgment.

Case No. 18-1426:  State of Iowa v. K'von Henderson

Filed Jul 03, 2019

View Opinion No. 18-1426

            Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.  REVERSED AND REMANDED FOR RESENTENCING.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (9 pages)

            K’von Henderson appeals his second-degree robbery sentence, arguing he was entitled to the benefit of an ameliorative sentencing amendment because his conviction occurred after July 1, 2016, the application date set out in the statute.  OPINION HOLDS: Because we agree Henderson was not convicted of second-degree robbery until the supreme court set aside his first-degree robbery conviction and remanded to the district court for resentencing and entry of judgment on second-degree robbery, we reverse and remand for resentencing.

Case No. 18-1468:  In re the Marriage of Rosonke

Filed Jul 03, 2019

View Opinion No. 18-1468

            Appeal from the Iowa District Court for Chickasaw County, Richard D. Stochl, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (10 pages)

            Marie Rosonke appeals from the order modifying the decree dissolving her marriage to Brian Rosonke.  OPINION HOLDS: I. We affirm the order modifying the child custody provisions of the parties’ dissolution decree to grant Brian physical care of the parties’ three children based on Marie’s move.  Because a joint physical care arrangement was no longer feasible, the court had to select one parent as physical caretaker, and the evidence supports a finding that placing the children in Brian’s care, in the only community they have called home, is in the children’s best interests.  II. The district court was not required to order the health insurance coverage offered through Marie’s employer as medical support because it does not meet the definition of “accessible” under Iowa Code 252E (2017).  III. Because Marie has not met her burden of showing the judge had a personal bias or prejudice against her that stemmed from an extrajudicial source, we find no abuse of discretion in refusing to recuse himself.  IV. We decline to award Marie appellate attorney fees.

Case No. 18-1655:  Alexa Anthony v. 60th Street III, L.C. and Professional Property Management, Inc.

Filed Jul 03, 2019

View Opinion No. 18-1655

            Appeal from the Iowa District Court for Polk County, David May, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  May, J., takes no part.  Opinion by Vogel, S.J.  (8 pages)

            Alexa Anthony appeals from the district court orders granting motions to dismiss from both 60th Street III, L.C. (60th Street) and Professional Property Management, Inc. (PPM).  She argues good cause existed to permit her additional time to serve 60th Street and her amended petition adding PPM as a defendant properly related back to her initial petition.  OPINION HOLDS: Anthony has not shown good cause for failing to timely serve 60th Street and no state of facts exists under the petitions for PPM to know she intended to name them as defendant within the time to bring her claim.  Therefore, we affirm the dismissals of both defendants. 

Case No. 18-1724:  In re the Marriage of Drake

Filed Jul 03, 2019

View Opinion No. 18-1724

            Appeal from the Iowa District Court for Ringgold County, Thomas P. Murphy, Judge.  AFFIRMED AS MODIFIED AND REMANDED WITH INSTRUCTIONS.  Considered by Potterfield, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (12 pages)

            Chad Drake appeals the district court’s decree dissolving his marriage to Laura Drake.  OPINION HOLDS: Upon our de novo review, we conclude Chad’s farm expenses should have been deducted from his farm income for purposes of calculating his child support obligation, and we find his farm operation’s annual income was $3100.  Additionally, we affirm, as modified, the equalization payment ordered by the district court.  Accordingly, we affirm as modified the district court’s award of the equalization payment to Laura, and we remand the case back to the district court for recalculation of Chad’s child support obligation using the lesser farm-income figure.  We affirm the decree in all other respects.

Case No. 18-1798:  Anthony Shellito v. Morgan Kaiser

Filed Jul 03, 2019

View Opinion No. 18-1798

            Appeal from the Iowa District Court for Mills County, James S. Heckerman, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (4 pages)

            Anthony Shellito appeals from the district court order modifying the decree governing custody, visitation, and support of the child he shares with Morgan Kaiser.  OPINION HOLDS: Because Anthony has failed to meet his burden of showing a superior ability to minister to the child’s needs, we decline to modify the physical care provisions of the decree.

Case No. 18-1834:  In re the Marriage of Dugan

Filed Jul 03, 2019

View Opinion No. 18-1834

            Appeal from the Iowa District Court for Fayette County, Richard D. Stochl, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (9 pages)

            Victoria Dugan appeals the child custody and support provisions of the decree dissolving her marriage to James Dugan.  OPINION HOLDS: I. The record supports the finding that granting James physical care of the parties’ six children serves the children’s best interests.  We also affirm the visitation provisions of the dissolution decree.  II. Because it is necessary to impute income to Victoria to do justice between the parties, we affirm district court’s child support calculation.  III. We decline to award Victoria spousal support on the record before us.  IV. We decline to award Victoria appellate attorney fees.

Case No. 19-0326:  In the Interest of P.S., T.S., and A.S., Minor Children

Filed Jul 03, 2019

View Opinion No. 19-0326

            Appeal from the Iowa District Court for Palo Alto County, Ann M. Gales, District Associate Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Mullins, P.J.  (20 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: We affirm the termination of the mother’s parental rights. 

Case No. 19-0388:  In the Interest of M.D., Minor Child

Filed Jul 03, 2019

View Opinion No. 19-0388

            Appeal from the Iowa District Court for Polk County, Romonda Belcher, District Associate Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Mullins, P.J.  (4 pages)

            The father appeals a dispositional order in a child-in-need-of-assistance proceeding, challenging the court’s denial of his request for modification of placement and placing the child with the mother.  OPINION HOLDS: Upon our de novo review and in consideration of the best interests of the child, we conclude the court’s determination that placement with the mother is the least restrictive alternative is supported by clear and convincing evidence.  We affirm the dispositional order. 

Case No. 19-0503:  In the Interest of K.M., Minor Child

Filed Jul 03, 2019

View Opinion No. 19-0503

            Appeal from the Iowa District Court for Cedar County, Gary P. Strausser, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  (11 pages)

            A mother and father appeal the juvenile court’s order terminating their parental rights.  OPINION HOLDS: We conclude termination was proper under Iowa law and consistent with the child’s best interest.  We affirm.  

Case No. 19-0635:  In the Interest of K.J. and K.S., Minor Children

Filed Jul 03, 2019

View Opinion No. 19-0635

            Appeal from the Iowa District Court for Plymouth County, Andrew Smith, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (7 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: The State established the grounds for termination, and we find termination of the mother’s parental rights is in the children’s best interests even though each child is doing well in his and her father’s care.  Under the facts and circumstances of this case, there is no reason to apply any of the permissive factors set out in Iowa Code section 232.116(3) (2018), nor is additional time under section 232.104(2)(b) justified.  Accordingly, we affirm the order terminating the mother’s parental rights.

Case No. 19-0721:  In the Interest of J.S., Minor Child

Filed Jul 03, 2019

View Opinion No. 19-0721

            Appeal from the Iowa District Court for Woodbury County, Stephanie Forker Parry, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (11 pages)

            A father appeals the termination of his parental rights to his minor child, born in 2014.  He contends the State failed to make reasonable efforts at reunification, challenges the sufficiency of the evidence underlying the statutory grounds for termination cited by the juvenile court, and argues termination is not in the child’s best interests.  OPINION HOLDS: We affirm the juvenile court order terminating the father’s parental rights. 

Case No. 19-0723:  In the Interest of K.I., Minor Child

Filed Jul 03, 2019

View Opinion No. 19-0723

            Appeal from the Iowa District Court for Mahaska County, Rose Anne Mefford, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (6 pages)

            A mother appeals the termination of her parental rights to her child, contending termination of her parental rights is not in the best interests of the child.  OPINION HOLDS: Upon our de novo review of the record, we conclude the State proved the termination of the mother’s parental rights is in the best interests of the child and we affirm the decision of the juvenile court to terminate the mother’s parental rights.

Case No. 17-1279:  Michael Howard Lang v. State of Iowa

Filed Jun 19, 2019

View Opinion No. 17-1279

            Appeal from the Iowa District Court for Woodbury County, Edward A. Jacobson, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (9 pages)

            Michael Lang appeals on multiple grounds the district court’s dismissal of his application for postconviction relief filed in 2016 and his 2017 supplemental application.  OPINION HOLDS: Lang claims structural error in the court’s decision, but the record is inadequate for us to evaluate this claim.  We find most of Lang’s claims are time-barred, have been previously decided, or are otherwise not properly before this court.  We find the new evidence challenging hair analysis at trial would not have changed the result of the trial.  We affirm.

Case No. 17-1310:  Sullins v. District Court

Filed Jun 19, 2019

View Opinion No. 17-1310

            Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson, Judge.  AFFIRMED.  Considered by Vogel, C.J., Mullins, J., and Scott, S.J.  Opinion by Scott, S.J.  (6 pages)

            Raymond Sullins appeals the district court ruling denying his petition to vacate the court’s decision denying his motion for a new trial.  OPINION HOLDS:  We conclude Sullins did not assert adequate grounds to grant his motion to vacate.  We affirm the decision of the district court.

Case No. 17-1574:  Daniel Samuel Jason v. State of Iowa

Filed Jun 19, 2019

View Opinion No. 17-1574

            Appeal from the Iowa District Court for Johnson County, Chad A. Kepros, Judge.  AFFIRMED.  Considered by Potterfield, P.J., May, J., and Mahan, S.J.  Per Curiam.  (4 pages)

            Daniel Jason appeals the district court’s denial of his two applications for postconviction relief.  OPINION HOLDS: We affirm the court’s denial of Jason’s applications for postconviction relief.

Case No. 17-1783:  William Earl Roby v. State of Iowa

Filed Jun 19, 2019

View Opinion No. 17-1783

            Appeal from the Iowa District Court for Linn County, Mary E. Chicchelly, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (13 pages)

            William Roby appeals the denial of his application for postconviction relief.  On appeal, Roby claims his trial counsel provided ineffective assistance in allowing him to plead guilty to kidnapping in the third degree when there was an insufficient factual basis to support the plea.  Roby also claims his counsel provided ineffective assistance by failing to file a motion in arrest of judgment to challenge his guilty plea to the kidnapping charge.  He contends his guilty plea was not voluntarily and intelligently made due to counsel’s ineffective assistance during plea negotiations and during the guilty-plea proceedings.  Roby also raises pro se claims based upon his right of confrontation and a post-trial motion filed after the case was appealed.  OPINION HOLDS: We find a sufficient factual basis supports Roby’s guilty plea to kidnapping in the third degree and his trial counsel did not render ineffective assistance in not challenging his properly entered guilty plea.  We further find Roby’s trial counsel did not render ineffective assistance during plea negotiations or in allowing Roby to plead guilty to the kidnapping charge.  Roby’s guilty plea waived his claim concerning his right of confrontation.  The district court committed no error by not addressing Roby’s post-trial motion.

Case No. 17-2031:  State of Iowa v. Ricky Dean Ryan

Filed Jun 19, 2019

View Opinion No. 17-2031

            Appeal from the Iowa District Court for Polk County, David M. Porter and Karen A. Romano, Judges.  AFFIRMED.  Heard by Vogel, C.J., and Carr and Gamble, S.J.  May, J., takes no part.  Opinion by Vogel, C.J.  (12 pages)

            Ricky Dean Ryan appeals after a jury found him guilty on three drug-related charges.  He challenges the denial of his motion to suppress evidence and the sufficiency of the evidence supporting his convictions.  OPINION HOLDS: A home visit was conducted to carry out a legitimate parole supervision concern, and therefore, Ryan’s motion to suppress was properly overruled.  Because Ryan was not in custody when he made incriminating statements, those statements were admissible, and sufficient evidence supports his convictions.

Case No. 18-0189:  Julie Pfaltzgraff v. Iowa Department of Human Services

Filed Jun 19, 2019

View Opinion No. 18-0189

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Vogel, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  Partial Dissent by Vogel, C.J.  (6 pages)

            Julie Pfaltzgraff’s appeals the district court ruling denying her petition for judicial review, which affirmed Iowa Department of Human Services (DHS) decision confirming the existence of Child Care Assistance Program (CCAP) overpayments and the amount.  OPINION HOLDS: For the reasons set forth in Endress v. Iowa Department of Human Services, No. 18-1329, 2019 WL ________, at *___ (Iowa Ct. App. June 19, 2019), also filed today, we reverse the district court’s ruling in part because the notice the DHS provided concerning recoupment of the CCAP payments made during the appeal process was constitutionally deficient.  On this basis, we reverse the district court’s ruling on judicial review, which affirmed the agency decision regarding recoupment of CCAP overpayments and amount.  And because Pfaltzgraff is entitled to an award of her attorney fees under Iowa Code section 625.29 (2017) for the reasons set forth in Endress, we remand to the district court to determine an appropriate award, which should include appellate attorney fees.  Finally, we affirm the portion of the ruling determining that Pfaltzgraff failed to preserve error on her claim that the DHS violated its own rule in denying her second CCAP application.  PARTIAL CONCURRENCE, PARTIAL DISSENT ASSERTS: For the reasons expressed in my dissent in Endress, I dissent in part from the opinion of the majority, which found the notice to Julie Pfaltzgraff was deficient and she is entitled to attorney fees.  I agree with the majority’s conclusion that error was not preserved on the refusal to process her second application. 

Case No. 18-0427:  Jesse Neitzel v. State of Iowa

Filed Jun 19, 2019

View Opinion No. 18-0427

            Appeal from the Iowa District Court for Carroll County, Gary L. McMinimee, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by May, J.  (4 pages)

            Jesse Neitzel appeals the dismissal of his postconviction-relief (PCR) action.  Neitzel does not claim error by the PCR court.  Instead, Neitzel claims his PCR counsel was ineffective in allowing the current action to be dismissed.  OPINION HOLDS: We affirm but preserve Neitzel’s ineffective-assistance claims.

Case No. 18-0542:  Joshua Andrew Powell v. State of Iowa

Filed Jun 19, 2019

View Opinion No. 18-0542

            Appeal from the Iowa District Court for Boone County, William C. Ostlund, Judge.  AFFIRMED. Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Vaitheswaran, P.J.  (19 pages)

            Joshua Powell appeals from the denial of his postconviction-relief application, raising various claims of ineffective assistance of trial and appellate counsel.  OPINION HOLDS: We conclude Powell’s trial attorneys did not breach an essential duty in failing to move for a change of venue.  We also conclude Powell’s trial attorneys did not breach an essential duty in declining to present a diminished responsibility or intoxication defense, as they thoughtfully considered those issues.  Additionally, we find Powell’s trial attorneys were not ineffective in handling the testimony of the medical examiner.  Applying precedent, we further conclude Powell’s trial attorneys breached no essential duty in failing to argue his Fifth Amendment right to counsel was violated, and it follows appellate counsel was not ineffective in failing to raise the issue.  And, because substantial evidence supports a finding of malice aforethought in this case, the failure of Powell’s attorneys to challenge that element could not have been prejudicial.  We find Powell’s trial attorneys did not breach an essential duty in failing to challenge the sufficiency of the trial information, and as such it follows that appellate counsel was not ineffective in failing to raise the issue.  Moreover, we agree with the postconviction court’s conclusion that “[e]ven if the trial court erred in not granting the strike for cause,” Powell did not establish prejudice.  Finally, we conclude counsel did not breach an essential duty in failing to request a hearing on the stun device issue.  Accordingly, affirm the postconviction court’s denial of Powell’s postconviction-relief application.

Case No. 18-0597:  State of Iowa v. Jonathan James Elphic

Filed Jun 19, 2019

View Opinion No. 18-0597

            Appeal from the Iowa District Court for Franklin County, Peter B. Newell, District Associate Judge.  AFFIRMED.  Heard by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Potterfield, P.J.  (9 pages)

            Jonathan Elphic appeals from his conviction for forgery, a class “D” felony.  Elphic maintains the district court abused its discretion when it allowed the State to reopen the record after the prosecutor indicated the State rested its case and Elphic moved for a judgment of acquittal based on insufficient evidence.  Elphic asserts his conviction should be vacated for insufficient evidence.  OPINION HOLDS:  The district court did not abuse its discretion in allowing the State to call the complaining witness to testify after the State misspoke, stating it rested.  Because the complaining witness’s testimony was properly part of the record, substantial evidence supports the jury’s verdict convicting Elphic of forgery.

Case No. 18-0759:  Willie Carroll v. Iowa Department of Human Services

Filed Jun 19, 2019

View Opinion No. 18-0759

            Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.  AFFIRMED ON APPEAL; REVERSED AND REMANDED ON CROSS-APPEAL.  Considered by Doyle, P.J., Mullins, J., and Mahan, S.J.  Opinion by Mullins, J.  (13 pages)

            Willie Carroll appeals, and the Iowa Department of Human Services (DHS) cross-appeals, a district court ruling on Carroll’s petition for judicial review partially affirming an agency determination and remanding the matter to the agency.  Carroll argues the district court erred in affirming the denial of four out of five of the skilled-nursing visits she requested to be covered by her managed-care organization because (1) the court failed “to consider whether the requested skilled nursing visits qualify as ‘restorative and maintenance home health agency services’” under Iowa Administrative Code rule 441-78.9, (2) DHS abused its discretion in using arbitrary criteria in denying the request, (3) the court erred in failing to find DHS’s decision’s negative impact on private rights is grossly disproportionate to the public interest, and (4) the factual determinations that skilled-nursing visits were not medically necessary are unsupported by substantial evidence.  On cross-appeal, DHS contends the district court erred in remanding the matter to the agency for the purpose of determining whether one of the five requested skilled-nursing visits was medically necessary.  OPINION HOLDS: Carroll has failed to preserve error on her claims concerning restorative and maintenance care, the criteria used by Amerigroup and DHS in denying the request for prior authorization, and gross disproportionality.  We find the agency determination affirming the denial of all five requested skilled-nursing visits is supported by substantial evidence.  We therefore affirm on appeal.  On cross-appeal, we reverse the district court’s remand of the matter to the agency, and we remand the matter to the district court for the entry of an order affirming the agency determination.

Case No. 18-0765:  State of Iowa v. Ken Lorenze Kuhse

Filed Jun 19, 2019

View Opinion No. 18-0765

            Appeal from the Iowa District Court for Linn County, Russell G. Keast, District Associate Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.  Opinion by Tabor, J. (8 pages)

            Ken Kuhse appeals his conviction for domestic abuse assault causing bodily injury, claiming counsel was ineffective for failing to object to the marshaling instruction, which directed the jury to find him guilty if it found the elements listed without reference to Kuhse’s justification defense.  OPINION HOLDS: Because the State’s burden to disprove Kuhse’s justification defense became an element of the offense after Kuhse produced sufficient evidence on the defense, counsel breached a material duty by failing to object to the marshaling instruction.  And because Kuhse produced sufficient evidence on the defense to raise a fact question for the jury, he was prejudiced by the faulty instruction.  Accordingly, we reverse and remand for a new trial.

Case No. 18-0784:  John Barton Goplerud, Leslie Clemenson, Lyle Hale, and Dorothy Hale v. Dallas County, Iowa, Dallas County Board of Adjustment, and Napa Valley Owners Association

Filed Jun 19, 2019

View Opinion No. 18-0784

            Appeal from the Iowa District Court for Dallas County, Dustria A. Relph, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (14 pages)

            Plaintiffs appeal the district court decision dismissing their petition for writ of certiorari challenging the decision of the Dallas County Board of Adjustment (Board) finding they were in violation of zoning ordinances and claim against the Napa Valley Owners Association (NVOA) for tortious interference with their property rights.  OPINION HOLDS: We determine the district court erred by dismissing the petition for writ of certiorari based on its finding plaintiffs had not shown they were aggrieved by the Board’s decision.  We reverse on this issue and remand for further proceedings.  We conclude the district court did not err in granting the motion to dismiss filed by the NVOA for failure to state a claim upon which relief may be granted and affirm the court’s ruling on this issue.

Case No. 18-0820:  State of Iowa v. Arthur James Mollo III

Filed Jun 19, 2019

View Opinion No. 18-0820

            Appeal from the Iowa District Court for Wright County, Paul B. Ahlers and Kim M. Riley, District Associate Judges.  AFFIRMED.  Considered by Vogel, C.J., Bower, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (6 pages)

            Arthur Mollo III appeals from judgment and sentence entered upon his guilty plea to identity theft, contending counsel was ineffective in allowing the plea where there was no factual basis that the victim was a “person” and in failing to object to the court’s consideration of risk assessment tests in sentencing.  He also asserts the court considered an improper factor in sentencing.  OPINION HOLDS: On our review, a factual basis for the plea exists and we find no abuse of the court’s sentencing discretion.  Mollo’s ineffective assistance of counsel claim is preserved for possible postconviction proceedings.

Case No. 18-0898:  State of Iowa v. Brandon Samuel Proctor

Filed Jun 19, 2019

View Opinion No. 18-0898

            Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Doyle, P.J., May, J., and Scott, S.J.  Opinion by Scott, S.J.  (10 pages)

            Brandon Proctor appeals his convictions of first-degree theft, eluding, driving while barred, trespass, and criminal mischief.  OPINION HOLDS:  We find the district court did not err in its decision declining to give a jury instruction on operating a vehicle without the owner’s consent as a lesser-included offense of first-degree theft.  We conclude there is substantial evidence in the record to support Proctor’s convictions of first-degree theft and eluding.  We determine there is not substantial admissible evidence in the record to support Proctor’s conviction for fourth-degree criminal mischief.  We find Proctor has not shown he received ineffective assistance on his claim regarding a proposed jury instruction on operating a vehicle without the owner’s consent as a lesser-included offense of first-degree theft.  We find his claim he received ineffective assistance because defense counsel did not file a motion to suppress should be preserved for possible postconviction relief.  We affirm Proctor’s convictions of first-degree theft, eluding, driving while barred, and trespass.  We reverse his conviction of fourth-degree criminal mischief and remand to the district court for a new judgment and sentencing order.

Case No. 18-0922:  Estate of Kwan Rim v. Wellmark, Inc. d/b/a Wellmark BlueCross and BlueShield of Iowa and Wellmark Health Plan of Iowa, Inc.

Filed Jun 19, 2019

View Opinion No. 18-0922

            Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

The estate of Kwan Rim seeks further review from a district court decision that upheld the denial of health coverage for a large portion of an extended hospital stay in South Korea.  The estate argues (1) it was erroneous not to apply the strictures of Iowa Code chapter 17A (2016) to the external review process, (2) Rim’s insurer, Wellmark, Inc., had a duty to provide translated medical records to the independent review organization, and (3) the decision of the independent review organization should not have been affirmed.  OPINION HOLDS: Because the independent review organization is not an agency and Rim does not contest any action of the agency, the standards governing review of agency action are inapplicable.  Also, because the medical records were sufficiently intelligible to an English reader to render a coverage decision, we need not determine who should bear the costs of translation, if translation is required.  Finally, we conclude the independent review organization did not err in denying coverage for the bulk of Rim’s hospital stay.  Accordingly, we affirm the district court ruling on judicial review of the IRO’s decision.

Case No. 18-1088:  State of Iowa v. Michael A. Gill, Jr.

Filed Jun 19, 2019

View Opinion No. 18-1088

            Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Vogel, C.J. (4 pages)

            Michael Gill appeals his conviction and sentence for robbery in the second degree.  On appeal, he asserts his counsel was ineffective for failing to object to a jury instruct on second-degree robbery that did not include the assault element.  OPINION HOLDS: We find Gill has not established prejudice and, therefore, his ineffective-assistance claim fails. 

Case No. 18-1153:  Arnold D. Grice v. State of Iowa

Filed Jun 19, 2019

View Opinion No. 18-1153

            Appeal from the Iowa District Court for Scott County, Mark R. Lawson, Judge.  AFFIRMED.  Considered by Potterfield, P.J., May, J., and Blane, S.J.  Opinion by Blane, S.J.  (3 pages)

            Arnold Grice appeals from the denial of his second application for postconviction relief following his 2007 convictions. Grice raises three issues that he raised to the second PCR court: that his first PCR counsel was ineffective in failing to raise the issues his trial counsel was ineffective (1) for not adequately explaining the strength of the evidence against him, which led him to reject a favorable plea agreement, and (2) for not raising a conflict-of-interest issue, and (3) trial counsel was ineffective for failing to further investigate the DNA evidence against him.  OPINION HOLDS: Having considered each of Grice’s claims, we affirm the PCR court’s denial of Grice’s claims without further opinion. 

Case No. 18-1329:  Terri Endress v. Iowa Department of Human Services

Filed Jun 19, 2019

View Opinion No. 18-1329

            Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Vogel, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  Dissent by Vogel, C.J.  (19 pages)

            The Department of Human Services (DHS) appeals district court’s ruling on judicial review, which determined the DHS violated Terri Endress’s procedural due process rights and exceeded its statutory authority in promulgating administrative rules concerning recoupment of Child Care Assistance Program (CCAP) overpayments, and the administrative rules concerning recoupment are unconstitutionally vague.  Terri Endress cross-appeals the denial of her request for attorney fees.  OPINION HOLDS: I. The DHS violated Endress’s right to procedural due process by seeking recoupment of CCAP payments without providing adequate notice.  The notice provided to Endress concerning recoupment of the CCAP payments made during the appeal process was constitutionally deficient, and we affirm on this basis.  Accordingly, we need not address the other grounds on which the district court granted Endress’s petition for judicial review or Endress’s argument concerning unjust enrichment.  II. Although Endress appealed the DHS’s assessment of CCAP overpayments, she did not challenge the existence of a CCAP overpayment under the DHS’s rules and the amount of that overpayment.  Rather, the DHS’s promulgation of administrative rules concerning overpayment and the procedural due process it afforded Endress were at issue.  Because the agency did not adjudicate the matter on appeal, its role was not primarily adjudicative.  We reverse the district court’s determination that Endress is not entitled to attorney fees under Iowa Code section 625.29 (2018) and remand to the district court to determine an appropriate award.  DISSENT ASSERTS: I do not believe the notice from DHS to Endress violated her right to procedural due process.  I also believe Endress cannot recover attorney fees because the department’s actions were primarily adjudicative.  Therefore, I respectfully dissent.

Case No. 18-1419:  State of Iowa v. Tricia Ann Hannegrefs

Filed Jun 19, 2019

View Opinion No. 18-1419

            Appeal from the Iowa District Court for Worth County, Rustin T. Davenport, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Tabor, J.  (9 pages)

            Tricia Hannegrefs appeals her conviction for driving while barred, arguing counsel was ineffective for failing to object to jury instruction lacking State’s burden of disproving her compulsion defense.  OPINION HOLDS: Because we conclude competent counsel would have objected to the defective instruction and Hannegrefs suffered prejudice as a result of counsel’s deficiency, we reverse Hannegrefs’s conviction and remand for a new trial.

Case No. 18-1455:  Andrew Lechuga v. Heartland Co-Op, Mid-States Millwright & Builders, Inc., Mid-States Material Handling & Fabrication, Inc., O & J Enterprises, LLC, Manzano Grain Bin Services, LLC and Garcia Grain Structure, LLC

Filed Jun 19, 2019

View Opinion No. 18-1455

            Appeal from the Iowa District Court for Fremont County, Mark J. Eveloff, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Doyle, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (15 pages)

            In an interlocutory appeal, Andres Lechuga challenges the district court decision granting summary judgment to O & J Enterprises, LLC (O & J) in his tort action.  OPINION HOLDS: We find there are genuine issues of material fact on the questions of whether O & J had a subcontractor agreement with Garcia Grain Structures, LLC (Garcia Grain), or whether Ezekiel Garcia was O & J’s employee and whether O & J and Garcia or Garcia Grain had a principal-agent relationship.  On these issues we reverse the district court’s decision granting summary judgment to O & J and remand for further proceedings.  We find the district court properly granted summary judgment to O & J on the issue of whether O & J was in a joint venture with Mid-States Millwright & Builders, Inc. and Garcia or Garcia Grain, and we affirm on this issue.

Case No. 18-1603:  Damian Lee Hesseltine v. Drewann Sorensen

Filed Jun 19, 2019

View Opinion No. 18-1603

            Appeal from the Iowa District Court for Washington County, Crystal S. Cronk, Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Blane, S.J.  Opinion by Vaitheswaran, J.  (6 pages)

            DrewAnn Sorensen appeals an order granting Damian Hesseltine physical care of the parties’ minor child and awarding him the associated dependent-tax exemption.  OPINION HOLDS: We affirm the district court’s decree, and we decline to award appellate attorney fees.

Case No. 18-1700:  State of Iowa v. Gregg Patrick Quigley

Filed Jun 19, 2019

View Opinion No. 18-1700

            Appeal from the Iowa District Court for Warren County, Kevin A. Parker, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (6 pages)

            Gregg Quigley appeals his conviction for theft in the third degree.  OPINION HOLDS:  We find Quigley’s claims of ineffective assistance by defense counsel during his guilty plea proceeding should be preserved for possible postconviction proceedings.  We find the court did not abuse its discretion in setting the amount of restitution in the sentencing order.  We affirm Quigley’s conviction.

Case No. 18-1739:  State of Iowa v. Bob Kent Knipfel

Filed Jun 19, 2019

View Opinion No. 18-1739

            Appeal from the Iowa District Court for Hardin County, Paul B. Ahlers, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by May, J.  (4 pages)

            A defendant appeals from his sentence for operating while intoxicated, second offense.  OPINION HOLDS: The district court properly exercised its discretion when sentencing the defendant.  We affirm the defendant’s sentence.

Case No. 18-1854:  Mark Roger Scholtes v. State of Iowa

Filed Jun 19, 2019

View Opinion No. 18-1854

            Appeal from the Iowa District Court for Dubuque County, Michael J. Shubatt, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            Mark Scholtes appeals the denial of his application for postconviction relief, raising claims of ineffective assistance of plea and postconviction counsel.  OPINION HOLDS: Because postconviction counsel raised and obtained a ruling on the precise issue Scholtes now raises, he could not have been ineffective.  We also conclude plea counsel was not ineffective in his advice about the possibility of consecutive sentences.  Accordingly, we affirm the postconviction court’s denial of Scholtes’ postconvicton-relief application.

Case No. 18-2142:  In the Interest of S.A., Minor Child

Filed Jun 19, 2019

View Opinion No. 18-2142

            Appeal from the Iowa District Court for Polk County, Romonda Belcher, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., and Doyle and Mullins, JJ.  Opinion by Potterfield, P.J.  (7 pages)

            The mother and father separately appeal the termination of their parental rights to their daughter, S.A., who was born in December 2015.  The juvenile court terminated both the mother’s and the father’s parental rights pursuant to Iowa Code section 232.116(1)(h) (2018).  Both parents argue the State failed to prove the statutory grounds by clear and convincing evidence.  The mother also argues that the court should have granted a six-month deferment instead of termination.    OPINION HOLDS: Clear and convincing evidence supports the termination of both the mother’s and father’s parental rights.  The juvenile court properly denied the mother’s request for a six-month deferral.  We affirm on both appeals.

Case No. 19-0153:  In the Interest of T.F.-M., T.M., G.M., and A.G., Minor Children

Filed Jun 19, 2019

View Opinion No. 19-0153

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Tabor, J.  (8 pages)

            A grandmother appeals the juvenile court order denying her petition to intervene in child-welfare cases involving four children.  OPINION HOLDS: The grandmother’s decision to intervene was untimely for intervention in the child-in-need-of-assistance proceedings.  She still had an interest as an intervenor in the post-termination phase of proceedings.  But given concerns about her criminal history and protective capacity concerning the children’s father, we find no error in the juvenile court’s denial of her motion to intervene. 

Case No. 19-0343:  In the Interest of C.S., Minor Child

Filed Jun 19, 2019

View Opinion No. 19-0343

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            A mother and father appeal the termination of their parental rights to their minor child, contending (1) the record lacks clear and convincing evidence to support the ground for termination cited by the juvenile court; (2) termination is not in the child’s best interests; and (3) the juvenile court should have declined to terminate their parental rights based on the closeness of the parent-child bonds.  OPINION HOLDS: We conclude reunification with either parent is not an option.  Given the father’s violent propensities and both parents’ continued drug use, termination is in the child’s best interests.  Additionally, the juvenile court acted appropriately in declining to invoke the parent-child bond exception to termination.  Accordingly, we affirm the termination of the parents’ rights to the child.

Case No. 19-0347:  In the Interest of R.B., Minor Child

Filed Jun 19, 2019

View Opinion No. 19-0347

            Appeal from the Iowa District Court for Scott County, Christine Dalton, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  (8 pages)

            A mother appeals the juvenile court’s order terminating her parental rights.  OPINION HOLDS: We conclude termination was proper under Iowa law and consistent with the child’s best interest.  We affirm. 

Case No. 19-0437:  In the Interest of A.W., J.W., J.W., J.W., and M.W., Minor Children

Filed Jun 19, 2019

View Opinion No. 19-0437

            Appeal from the Iowa District Court for Polk County, Kimberly Ayotte, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Tabor, J.  (10 pages)

            A mother appeals the termination of her parental rights to five children.  She contends the court erred in not ordering transcripts, finding the DHS made reasonable efforts, and finding termination is in the children’s best interests.  OPINION HOLDS: On our de novo review, we affirm the findings of the juvenile court. 

Case No. 19-0440:  In the Interest of L.H., S.H., P.H., and F.H., Minor Children

Filed Jun 19, 2019

View Opinion No. 19-0440

            Appeal from the Iowa District Court for Linn County, Cynthia S. Finley, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (6 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: Because we agree with the juvenile court that the State proved the grounds for termination of parental rights and that termination was in the children’s best interests, we affirm the juvenile court’s order terminating the mother’s parental rights.

Case No. 19-0470:  In the Interest of K.P., K.P., J.P., K.P., J.P., K.P., J.P., and K.P., Minor Children

Filed Jun 19, 2019

View Opinion No. 19-0470

            Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic, District Associate Judge.  REVERSED IN PART AND REMANDED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            A mother and the father of one of her children appeal the juvenile court's removal order in a child-in-need-of-assistance proceeding.  OPINION HOLDS: We find there is not clear and convincing evidence supporting removal of the children.  We reverse the district court’s removal of all the children from the mother’s custody, and removal of the youngest child from her father’s custody.

Case No. 19-0483:  In the Interest of A.Y., A.Y., K.Y., and O.Y., Minor Children

Filed Jun 19, 2019

View Opinion No. 19-0483

            Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Mahan, S.J.  Tabor, J., takes no part..  Opinion by Doyle, J.  (6 pages)

            A father appeals the termination of his parental rights to his children.  OPINION HOLDS: The record shows the children are in need of permanency, and all of the children are doing well in their placement with relatives.  Ultimately, the children’s best interests are served by termination of the father’s parental rights.  Consequently, we affirm the juvenile court’s order terminating the father’s parental rights.

Case No. 19-0501:  In the Interest of M.B., T.B., M.B., S.B., and S.B., Minor Children

Filed Jun 19, 2019

View Opinion No. 19-0501

            Appeal from the Iowa District Court for Adair County, Monty Franklin, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (5 pages)

            A mother appeals the juvenile court order terminating her parental rights.  OPINION HOLDS: We find there is clear and convincing evidence in the record to support termination and termination is in the children’s best interests.  We affirm.

Case No. 19-0694:  In the Interest of I.M. and A.M., Minor Children

Filed Jun 19, 2019

View Opinion No. 19-0694

            Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            A father appeals the termination of his parental rights to his two children, arguing termination is not in the children’s best interests.  OPINION HOLDS: We conclude the father was in no position to parent his children safely, and we agree with the district court that termination of his parental rights is in the children’s best interests.  We affirm the termination of the father’s parental rights to the children.

Case No. 19-0704:  In the Interest of K.J. and K.J., Minor Children

Filed Jun 19, 2019

View Opinion No. 19-0704

            Appeal from the Iowa District Court for Franklin County, Peter B. Newell, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            A mother appeals the juvenile court decision terminating her parental rights.  OPINION HOLDS: We find her request for a six-month extension is unwarranted and decline to apply any exceptions.  We find termination is in the best interests of the children.  We affirm.

Case No. 17-1661:  State of Iowa v. Tacari Trevon Minifee

Filed Jun 05, 2019

View Opinion No. 17-1661

            Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter, Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Carr, S.J.  Opinion by Vaitheswaran, J.  (5 pages)

            Tacari Minifee appeals his convictions and sentences for the crimes of first-degree murder and first-degree robbery, raising claims of ineffective assistance of counsel and district court error in admitting certain evidence.  OPINION HOLDS: Preserving some claims for possible postconviction relief, we affirm Minifee’s judgment and sentences for both crimes.

Case No. 17-1701:  State of Iowa v. Steve W. Fordyce II

Filed Jun 05, 2019

View Opinion No. 17-1701

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Potterfield, J.  (21 pages)

            Steve Fordyce appeals his conviction after bench trial for voluntary manslaughter.  He claims (1) the State did not present substantial evidence to disprove his justification defense beyond a reasonable doubt, (2) the district court erred in not applying the amended Iowa Code chapter 704 (2017)—also known as the “stand your ground” law—to his case, and (3) his due process rights were violated by the length of time between his trial and the entry of the district court’s verdict.  OPINION HOLDS: Because substantial evidence disproves Fordyce’s justifications of self-defense and defense of others, the district court did not err in refusing to apply the stand your ground law to Fordyce’s case, and we do not find Fordyce’s due process rights were violated due to the delay between trial and the verdict, we affirm his conviction for voluntary manslaughter.

Case No. 17-1959:  State of Iowa v. Curt Douglas Steffen

Filed Jun 05, 2019

View Opinion No. 17-1959

            Appeal from the Iowa District Court for Dubuque County, Mark T. Hostager, District Associate Judge.  DISTRICT COURT JUDGMENT REVERSED IN PART AND CASE REMANDED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (6 pages)

            The defendant challenges the adequacy of the court’s colloquy when he stipulated to a prior operating while intoxication (OWI) conviction to enhance the current conviction for second-offense OWI.  The court did not mention the prior OWI was valid for enhancement only if the defendant had been represented by counsel or knowingly waived the right to counsel.  The defendant also alleges the colloquy did not adequately advise him of the applicable penalties for owi second offense.  OPINION HOLDS: Because the colloquy did not comply with the requirements clarified in State v. Harrington, 893 N.W.2d 36 (Iowa 2017), State v. Brewster, 907 N.W.2d 489 (Iowa 2018), and State v. Smith, 924 N.W.2d 846 (Iowa 2019), we reverse the judgment entered on the OWI second offense and remand for further proceedings.

Case No. 17-2001:  Adrian Darius Wilson v. Chelsea Rae Jacques

Filed Jun 05, 2019

View Opinion No. 17-2001

            Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Bower, J., and Mahan, S.J.  Gamble, S.J., takes no part.  Opinion by Mahan, S.J.  (15 pages)

            Chelsea Jacques appeals the district court’s decree ordering custody of her child with Adrian Wilson and ruling on her petition to disestablish Wilson’s paternity of the child.  OPINION HOLDS: Upon our review, we conclude Adrian’s paternity has been established and the court’s decree placing care of the child with him is in the child’s best interests.  We affirm.

Case No. 18-0175:  DeAndrew Harris v. State of Iowa

Filed Jun 05, 2019

View Opinion No. 18-0175

            Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.  AFFIRMED AND REMANDED.  Considered by Potterfield, P.J., Tabor, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (12 pages)

            DeAndrew Harris was granted interlocutory appeal of the district court’s ruling denying his motion for an expert witness at state expense in this postconviction-relief proceeding.  OPINION HOLDS: Finding no abuse of discretion, we affirm.  The matter is remanded for further proceedings.

Case No. 18-0242:  State of Iowa v. Larry Donell Whaley

Filed Jun 05, 2019

View Opinion No. 18-0242

            Appeal from the Iowa District Court for Cerro Gordo County, Chris Foy, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (12 pages)

            Larry Whaley appeals from his conviction for second-degree murder.  He contends the State offered insufficient evidence to support the jury verdict finding he acted with malice aforethought and without justification when he fired three shots through his closed apartment door, killing Samantha Teeter.  OPINION HOLDS: Viewing the record in the light most favorable to the verdict, we find substantial evidence to sustain Whaley’s second-degree murder conviction.  But because Whaley’s claims of ineffective assistance involve questions of trial strategy, and the record is inadequately developed to address those questions, we preserve them for possible postconviction-relief proceedings.

Case No. 18-0254:  Estate of Wilma Poll v. Kenneth William Poll

Filed Jun 05, 2019

View Opinion No. 18-0254

            Appeal from the Iowa District Court for Jackson County, Stuart P. Werling, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Doyle, J.  (13 pages)

            Patricia Gerardy, the conservator for Wilma Poll, brought suit against Kenneth Poll concerning a real estate transaction between Kenneth and Wilma, alleging Kenneth unduly influenced Wilma to enter into the agreement and that Wilma was not competent to enter into the transaction.  The jury found in favor of Kenneth, and the district court denied Patricia’s posttrial motions.  Patricia appealed, and the Estate of Wilma Poll was substituted as the plaintiff/appellant after Wilma passed away.  OPINION HOLDS: Upon our review of the record, we conclude Patricia failed to preserve error on her claim she is entitled to a new trial based upon the district court’s reversal of its initial evidentiary ruling admitting credibility evidence.  Additionally, we find the district court did not err in denying Patricia’s motion for judgment notwithstanding the verdict, nor did the court abuse its discretion in denying her motion for a new trial, because there is sufficient evidence to support the jury’s verdict.  Accordingly, we affirm the jury’s verdict and the court’s rulings.

Case No. 18-0377:  State of Iowa v. Derek Krieger

Filed Jun 05, 2019

View Opinion No. 18-0377

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (13 pages)

            Derek Krieger appeals his convictions for third-degree burglary and two counts of criminal trespass.  OPINION HOLDS: Because we find the State failed to prove the Wildwood Road apartment complex was not open to the public, we reverse Krieger’s burglary conviction.  And because the State did not prove Krieger entered the Joan Drive and West Ninth Street apartment complexes without permission, we likewise reverse Krieger’s criminal trespass convictions.

Case No. 18-0467:  State of Iowa v. Phillip Orlando Naylor

Filed Jun 05, 2019

View Opinion No. 18-0467

            Appeal from the Iowa District Court for Woodbury County, Timothy T. Jarman, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (9 pages)

            Phillip Naylor appeals his conviction for operating while intoxicated, second offense, alleging the district court should have granted his motion to suppress evidence discovered after police pulled him over based on two 911 calls from the same unnamed source.  OPINION HOLDS: Because we find the details offered by the caller showed enough indicia of the driver’s intoxication to warrant stopping his truck to investigate, we affirm the suppression ruling and resulting conviction.

Case No. 18-0484:  Adam Blomdahl v. State of Iowa

Filed Jun 05, 2019

View Opinion No. 18-0484

            Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L. Larson, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (11 pages)

            Adam Blomdahl appeals from the denial of his application for postconviction relief.  OPINION HOLDS: Because Blomdahl has failed to prove either a breach of duty or prejudice resulting from alleged counsel errors, his ineffective-assistance-of-counsel claims fail.  We affirm the denial of his postconviction-relief application.

Case No. 18-0488:  Wells Fargo Bank, N.A. v. Jason C. Thomas, et al.

Filed Jun 05, 2019

View Opinion No. 18-0488

            Appeal from the Iowa District Court for Clinton County, Henry W. Latham II, Judge.  REVERSED AND REMANDED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Vogel, C.J.  (4 pages)

            Wells Fargo Bank, N.A. (Wells Fargo) appeals the denial of its petition to quiet title as to unknown heirs of Larry F. Humphrey.  Wells Fargo asserts it gave proper notice to any unknown heirs by publication.  OPINION HOLDS: We agree notice by publication is sufficient as to unknown heirs, and no estate need be opened to quiet title.  Therefore, we reverse and remand.

Case No. 18-0502:  Donshey Purnell Reed v. State of Iowa

Filed Jun 05, 2019

View Opinion No. 18-0502

            Appeal from the Iowa District Court for Black Hawk County, Joel A. Dalrymple, Judge.  PCR DECISION AFFIRMED; SENTENCES VACATED IN PART AND REMANDED FOR RESENTENCING.  Considered by Vaitheswaran, P.J., Potterfield, J., and Scott, S.J.  Opinion by Vaitheswaran, P.J.  (5 pages)

            Donshey Reed appeals the district court’s denial of his application for postconviction relief (PCR), claiming (1) his sentence should be modified to remove illegally-imposed surcharges and (2) his PCR attorney was ineffective in “failing to present evidence or develop a record at the [PCR] proceeding.”  OPINION HOLDS: We vacate Reed’s sentence and remand for removal of the inapplicable surcharges.  We affirm the PCR court’s denial of Reed’s PCR application and preserve his claims that PCR counsel was ineffective for another possible postconviction-relief application.

Case No. 18-0613:  Gene L. Franklin and Connie Johnson, Executors of the Fae Black Estate; Gene L. Franklin, Connie Johnson, Curtis L. Franklin, Julie Pedrick, Bruce Franklin, and Gregory S. Franklin v. Michael Johnston, Elizabeth Johnston, Steve Johnston, and Judith Yeager

Filed Jun 05, 2019

View Opinion No. 18-0613

            Appeal from the Iowa District Court for Van Buren County, Randy S. DeGeest, Judge.  AFFIRMED ON APPEAL; REVERSED ON CROSS-APPEAL.  Considered by Vogel, C.J., and Vaitheswaran and Potterfield, JJ.  Opinion by Vogel, C.J.  (10 pages)

            Michael Johnston, Elizabeth Johnston, Steve Johnston, and Judith Yeager (the Johnstons) appeal, and Gene Franklin and Connie Johnson (the Franklins) cross-appeal, the district court’s ruling following a remand from our court.  The Johnstons assert the district court should have been granted them fee simple ownership of the dock and shoreline area near Michael Johnston’s home, rather than a prescriptive easement.  The Franklins filed a cross-appeal, and claim the district court should have restricted the size and location of the dock and the width of the shoreline.  OPINION HOLDS: We conclude the district court appropriately granted the Johnstons a prescriptive easement in the dock and shoreline.  Additionally, we order the boundaries of such easement be changed to conform to the Franklins’ requested specifications.

Case No. 18-0648:  State of Iowa v. Allen Wayne Nagle

Filed Jun 05, 2019

View Opinion No. 18-0648

            Appeal from the Iowa District Court for Hamilton County, Paul B. Ahlers, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Vogel, C.J. (4 pages)

            Allen Wayne Nagle appeals his sentence for burglary in the third degree.  OPINION HOLDS: Finding no abuse of discretion in running his sentence consecutively or in declining to suspend the fine, we affirm his sentence.

Case No. 18-0654:  Terry D. Butler v. Wells Fargo Bank, N.A., and David M. Erickson

Filed Jun 05, 2019

View Opinion No. 18-0654

            Appeal from the Iowa District Court for Warren County, Timothy O'Grady, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (12 pages)

            Terry Butler appeals from the district court’s grant of summary judgment dismissing his claims against Wells Fargo Bank, N.A. and David Erikson.  OPINION HOLDS: The district court correctly concluded Butler’s claims were barred by issue and claim preclusion.  Butler’s abuse-of-process claim also failed because he failed to provide evidence the defendants used the legal process for an improper purpose.

Case No. 18-0655:  Richard Coberly v. Carolyn J. Mils and Lisa Jean Green

Filed Jun 05, 2019

View Opinion No. 18-0655

            Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L. Larson, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Mullins, JJ.  Opinion by Vogel, C.J.  (5 pages)

            Richard Coberly appeals from the grant of summary judgment in favor of Carolyn Mils and Lisa Green after the district court found his petition was barred by claim preclusion.  OPINION HOLDS: Because Richard did not assert a defense that his debt was paid in the prior small claims action, we agree with the district court that his repackaged claim of fraud and conversion of funds is barred by claim preclusion.  Summary judgment was appropriate, and we therefore affirm.

Case No. 18-0692:  Lester Dunigan v. Liberty Mutual Insurance Company d/b/a Liberty Mutual Fire Insurance Company

Filed Jun 05, 2019

View Opinion No. 18-0692

            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.

Case No. 18-0710:  Daniel Felt and Susan Kern v. David Felt and Felt Farms LLC

Filed Jun 05, 2019

View Opinion No. 18-0710

            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.

Case No. 18-0777:  State of Iowa v. Leigh Laz Lepon

Filed Jun 05, 2019

View Opinion No. 18-0777

            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.

Case No. 18-0813:  In the Interest of B.H.A., Minor Child

Filed Jun 05, 2019

View Opinion No. 18-0813

            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.

Case No. 18-0817:  In re the Marriage of Mabbitt

Filed Jun 05, 2019

View Opinion No. 18-0817

            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.

Case No. 18-0831:  State of Iowa v. David Alan Francis

Filed Jun 05, 2019

View Opinion No. 18-0831

            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.

Case No. 18-0902:  Andrew Kearse, D.C. v. Iowa Board of Chiropractic

Filed Jun 05, 2019

View Opinion No. 18-0902

            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.

Case No. 18-0959:  State of Iowa v. John Michael Ancell

Filed Jun 05, 2019

View Opinion No. 18-0959

            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.

Case No. 18-1033:  State of Iowa v. Bruce Rankin

Filed Jun 05, 2019

View Opinion No. 18-1033

            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).

Case No. 18-1034:  Thomas Kellen and Jerome Kellen v. Wayne Pottebaum and Jeff Pottebaum

Filed Jun 05, 2019

View Opinion No. 18-1034

            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. 

Case No. 18-1057:  State of Iowa v. Torrenzo Michael Green

Filed Jun 05, 2019

View Opinion No. 18-1057

            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.  

Case No. 18-1065:  Izudin Dubinovic v. Des Moines Public Schools

Filed Jun 05, 2019

View Opinion No. 18-1065

            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.

Case No. 18-1101:  State of Iowa v. Joshua Snyder

Filed Jun 05, 2019

View Opinion No. 18-1101

            Appeal from the Iowa District Court for Fayette County, John J. Bauercamper, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Tabor, J., and Blane, S.J.  Opinion by Blane, S.J.  (3 pages)

            Joshua Snyder appeals from his guilty plea, claiming the trial court did not state a factual basis on the record for his plea as required by Iowa Rule of Criminal Procedure 2.8(2).  OPINION HOLDS: Snyder was advised of the deadline to file a motion in arrest of judgment, so his failure to file one precludes us from considering the merits of his challenge to his guilty plea.  We affirm.

Case No. 18-1149:  State of Iowa v. Nikolas A. Stephens

Filed Jun 05, 2019

View Opinion No. 18-1149

            Appeal from the Iowa District Court for Hardin County, Kurt J. Stoebe, Judge.  AFFIRMED.  Considered by Vogel, C.