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SUMMARY OF DECISIONS, IOWA COURT OF APPEALS February 24, 2010 Pursuant to Iowa Supreme Court Rule 6.14(5), an unpublished opinion of the Iowa Court of Appeals may be cited in a brief; however, unpublished opinions shall not constitute controlling legal authority. NOTE: Copies of these opinions may be obtained from the Clerk of the Supreme Court, Judicial Branch Building, 1111 East Court Avenue, Des Moines, IA 50319, for a fee of fifty cents per page. _____________________________________________________________________________ No. 09-0607. [9-770] IN RE MARRIAGE OF RANARD Appeal from the Iowa District Court for Johnson County, Marsha M. Beckelman, Judge. AFFIRMED AS MODIFIED AND REMANDED. Heard by Sackett, C.J., and Doyle and Danilson, JJ. Opinion by Sackett, C.J. (12 pages $6.00) David J. Ranard appeals, challenging the custodial and economic provisions of the decree dissolving his marriage to Wendy Ranard. He contends that he and Wendy should have been granted joint physical care of their two children. He also contends the district court should have granted his request to reopen the record to show the decline in value of his retirement accounts. Wendy asks for appellate attorney fees. David contends the district court should have continued the joint physical care provided for in a temporary order and modified by the parties' own agreement. He contends to do so will assure the combined presence of the parents in their children's lives and will continue the strong relationships the children have with both parents. OPINION HOLDS: Joint physical or shared care will best assure the children the opportunity for the maximum continuing physical and emotional contact with both parents and is in the children's best interest. We conclude the district court should not have rejected David's request for joint physical care. The district court did not abuse its discretion in not reopening the record. We affirm the property division. We modify the decree of dissolution to provide that the parties shall have joint physical care of their two teenage children. While the current shared physical care schedule has been working well, we remand to the district court for such further proceedings as are necessary to establish a joint physical care schedule, fix child support, and to resolve any other issues that may arise as a result of our modification of its decree. We do not retain jurisdiction. We award no attorney fees. Costs on appeal are taxed one half to each party. No. 08-1102. [0-005] EVANS v. STATE Appeal from the Iowa District Court for Dallas County, Dale B. Hagen, Judge. AFFIRMED. Considered by Sackett, C.J., Doyle and Danilson, JJ. Opinion by Sackett, C.J. (5 pages $2.50) Harris Evans appeals from the district court's summary disposition and dismissal of his second application for postconviction relief. He contends the court erred in granting the summary disposition (1) based on its conclusion that State v. Heemstra, 721 N.W.2d 549 (Iowa 2006), did not apply retroactively to his application and (2) based on its finding his proffered evidence did not meet the standard for newly-discovered evidence. OPINION HOLDS: The supreme court's recent decision in Goosman v. State, 764 N.W.2d 539, 542-45 (Iowa 2009), determined the rule announced in Heemstra was substantive and a change in the law. The district court correctly concluded Heemstra did not apply retroactively to appellant and there was no denial of his due process rights. See id. at 545. The newly-discovered evidence was hearsay and merely served to impeach a co-defendant's testimony. The district court correctly concluded it did not provide the basis for a new trial. See Summage v. State, 579 N.W.2d 821, 822 (Iowa 1998) (requiring proof the evidence was not merely be cumulative or impeaching and it likely would change the result in a new trial). No. 08-1751. [0-006] STATE v. SCHOFIELD Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge. AFFIRMED. Heard by Vogel, P.J., Eisenhauer, J., and Mahan, S.J. Opinion by Mahan, S.J. (10 pages $5.00) Dennis Schofield appeals from his convictions and sentences for two counts of first-degree murder. He contends the trial court erred in admitting evidence of other crimes and in allowing a firearm demonstration. He also contends his trial counsel was ineffective in failing to object to the admission of certain diary entries. OPINION HOLDS: I. We find the district court did not abuse its discretion in admitting testimony regarding burglaries the defendant and a State's witness committed together. The evidence was relevant to establish the nature of the relationship to explain why the defendant would confess to the murders and seek his assistance in disposing of the evidence. We cannot conclude the probative value was outweighed by the danger of unfair prejudice given the nature of the crime for which the defendant was being prosecuted. II. A firearm demonstration was relevant to connect the gun the defendant received from a friend to the one used to murder the Dilkses. Because he failed to object during the demonstration, we conclude the defendant has not preserved error as to any prejudice regarding the specific manner in which the demonstration was carried out. III. Counsel did not breach an essential duty in failing to object to two of the individual journal entries where counsel objected to all of the journal entries. Because no essential duty was breached, we find the defendant was not rendered ineffective assistance of counsel. No. 09-0136. [9-009] STATE v. HOPKINS Appeal from the Iowa District Court for Polk County, Don Nickerson, Judge. SENTENCES VACATED; REMANDED FOR RESENTENCING. Considered by Vogel, P.J., Eisenhauer, J., and Zimmer, S.J. Opinion by Eisenhauer, J. (3 pages $1.50) Defendant appeals his sentences following a guilty plea. OPINION HOLDS: The sentencing court improperly considered unproven and unprosecuted charges, which were to be dismissed pursuant to the plea agreement when sentencing the defendant. No. 09-0770. [0-013] THOMPSON v. IOWA DISTRICT COURT Appeal from the Iowa District Court for Polk County, Michael D. Huppert (motion to dismiss ruling), and Carla P. Schemmel (contempt ruling), Judges. WRIT ANNULLED. Heard by Sackett, C.J., and Doyle and Danilson, JJ. Opinion by Sackett, C.J. (12 pages $6.00) Melissa Thompson filed a petition for writ of certiorari contending the Iowa District Court should not have held her in contempt of its orders regarding the custody and support of a daughter she has with applicant, James Herriott. James lives in Iowa and Melissa lives in Australia. Under the Iowa decree, James had primary physical care of the parties' daughter and Melissa was to pay child support. In 2006, Melissa and James agreed that their daughter should have an extended visit with Melissa in Australia from June 3, 2006, until August 1, 2007, and Melissa's child support obligation would be suspended during this period. The Iowa district court modified the decree to reflect this agreement and provided that all other provisions of the previous decree would remain in effect. Melissa did not return the child on or after August 1, 2007. James filed an application for rule to show cause why Melissa was not in willful violation of the Iowa custody and support order. Melissa contends that she was not in contempt because a March 2008 order from an Australian court placed custody with her. The district court found Melissa in contempt. Melissa contends the court's ruling is in error because (1) the court lacked jurisdiction to rule on the application for rule to show cause, and (2) there is not substantial evidence to support the finding that Melissa's violation of the court order was willful. OPINION HOLDS: Melissa was in contempt of the Iowa decree before any jurisdiction was assumed by an Australian tribunal. She never sought or obtained an amendment of the Iowa order before or after the daughter was to be returned on August 1, 2007. Her other arguments point to alleged conduct on the part of James and do not explain whether her own behavior was or was not willful. Her attempt to seek recourse in the Australian court system did not give her a right to flout the Iowa order. Melissa, beyond a reasonable doubt, willfully failed to comply with the decree. Substantial evidence supports the court's finding. We annul the writ. No. 09-0919. [0-014] IN RE MARRIAGE OF GREINER Appeal from the Iowa District Court for Story County, Chris Foy, Judge. AFFIRMED. Heard by Vogel, P.J., Eisenhauer, J., and Mahan, S.J. Opinion by Eisenhauer, J. (5 pages $2.50) Husband appeals a district court order modifying child support and awarding attorney fees. OPINON HOLDS: The district court correctly utilized the actual wages earned by husband before he quit his employment in determining earning capacity. The attorney fees awarded by the trial court are equitable. We decline to award appellate attorney fees. No. 09-0745. [0-032] STATE v. BUNCH Appeal from the Iowa District Court for Black Hawk County, James D. Coil, Judge. AFFIRMED. Considered by Vogel, P.J., Eisenhauer, J., and Zimmer, S.J. Opinion by Zimmer, S.J. (6 pages $3.00) Anna Marie Bunch appeals from her conviction of second offense possession of a controlled substance following a jury trial. She contends there is insufficient evidence to show she was in constructive possession of crack cocaine. OPINION HOLDS: We conclude there is sufficient evidence to allow a reasonable factfinder to conclude Bunch possessed a controlled substance. Although there is evidence to militate against a finding of possession, our standard of review requires us to view the evidence in the light most favorable to the State. In so doing, we affirm. No. 09-0807. [0-033] MANN v. IOWA DISTRICT COURT Appeal from the Iowa District Court for Cerro Gordo County, Paul W. Riffel, Judge. WRIT ANNULLED. Considered by Sackett, C.J., and Doyle and Danilson, JJ. Opinion by Sackett, C.J. (8 pages $4.00) Jodi E. Mann filed a petition for writ of certiorari contending the district court should not have found her in contempt of court. The district court found Jodi willfully violated the visitation provisions of a previous order by refusing to make her daughter available for visitation with the daughter's father, Thomas M. Johnston, II. Jodi contends her actions were not in willful disregard of the order and the court's finding otherwise is not supported by substantial evidence. She also contends her trial counsel rendered ineffective assistance by failing to subpoena witnesses and by not soliciting certain testimony through direct and cross-examination. OPINION HOLDS: Substantial evidence supports the court's finding of contempt. Jodi failed to use reasonable efforts to make the daughter available for visitation as required by the order. There was ample evidence that her actions were willful as she admitted she was merely following her daughter's wishes and would not force her to follow the visitation order. Jodi did not establish she was prejudiced by her attorney's failure to solicit certain testimony. There is no showing that such additional testimony would support Jodi's claim that her conduct was not in willful violation of the order. No. 09-1152. [0-039] IN RE MARRIAGE OF RASMUSSEN Appeal from the Iowa District Court for Marshall County, Michael J. Moon, Judge. AFFIRMED AS MODIFIED AND REMANDED. Heard by Vogel, P.J., Eisenhauer, J., and Mahan, S.J. Opinion by Eisenhauer, J. (10 pages $5.00) Husband requests modification of dissolution decree seeking sole legal custody and physical care of his daughters. Wife cross-appeals the modification provisions concerning visitation, child support, and attorney fees. OPINION HOLDS: Husband has failed to meet his burden of proving by a greater weight of the evidence he is able to provide superior care. Wife is awarded sole legal custody and continues as parent providing physical care. Husband's visitation continues to be held without supervision. Wife's adoption subsidies are not included in income. Therefore, we remand for a recalculation of child support. The trial attorney fees to be paid by husband are equitable. We award wife appellate attorney fees. No. 09-1153. [0-040] BODENSTADT v. HAMBOR Appeal from the Iowa District Court for Scott County, Mark Cleve, Judge. AFFIRMED. Considered by Vogel, P.J., and Eisenhauer, J., and Mahan, S.J. Opinion by Mahan, S.J. (6 pages $3.00) Christopher Bodenstadt and Jennifer Hambor are the parents of twin girls, Autumn Raine and Shy Love, who were born in October 2001. The parties never married, but lived together for periods of time. During the times the parties separated, the children lived with Jennifer. Christopher filed a petition to establish paternity and asking for physical care of the children. The district court granted the parties joint legal custody, with Jennifer having physical care. Christopher appeals the district court's order placing the children in Jennifer's physical care. OPINION HOLDS: Christopher contends the district court should have placed the children in his physical care. Although there were many allegations by both parties, the district court was in the best position to evaluate the credibility of the witnesses and their statements. Therefore, we defer to the district court's determination that it would be in the children's best interests to be placed in the physical care of Jennifer. We affirm the decision of the district court. No. 09-1414. [0-044] STATE v. SHOPPA Appeal from the Iowa District Court for Muscatine County, Gary P. Strausser, District Associate Judge. AFFIRMED. Considered by Sackett, C.J., and Doyle and Danilson, JJ. Opinion by Sackett, C.J. (4 pages $2.00) Brandy Shoppa appeals from the sentence imposed following her conviction for operating while intoxicated, third offense. She contends the court abused its discretion in not giving appropriate consideration (1) to one of its statutory sentencing options, (2) to the rehabilitation efforts she made prior to sentencing, and (3) to various mitigating factors. OPINION HOLDS: The district court properly exercised its discretion in choosing the sentence tailored for appellant's circumstances that would best accomplish justice for society and for appellant. Although the court clearly did not give the same weight to various factors that appellant argues it should have, the court's choice of sentence was not based on grounds or for reasons clearly untenable, nor was its choice clearly unreasonable under the circumstances before it. No. 09-0509. [0-059] COMMERCE BANK v. RICE Appeal from the Iowa District Court for Greene County, William C. Ostlund, Judge. AFFIRMED. Considered by Vogel, P.J., Eisenhauer, J., and Zimmer, S.J. Opinion by Zimmer, S.J. (7 pages $3.50) Darwin and Diane Rice owned agricultural property in Greene County, Iowa. In 2000, the Rices borrowed $182,000 from Commerce Bank. The Rices also borrowed $200,000 from Farm Service Agency (FSA). These loans were secured by a mortgage on all of the land. Commerce Bank filed a petition for foreclosure of its mortgage because the Rices were in default. The district court issued a judgment and decree of foreclosure in January 2005. The sheriff's sale was eventually conducted on December 4, 2008. The land was sold to FSA for $510,980. There was a surplus above the amount of the debt to Commerce Bank. The district court denied the Rices' claim that they were entitled to the surplus. The court determined the U.S. Government/FSA was entitled to the surplus that was not necessary to satisfy the judgment of Commerce Bank. The Rices appealed. OPINION HOLDS: We determine Iowa Code sections 654.7 and 654.9 (2007) should be applied in this case. Under these code sections, whether mortgagors, such as the Rices, are entitled to an overplus, or surplus, depends upon whether there are any other liens of the property. In this case, FSA, as a junior lienholder, protected its claim by bidding at the sheriff's sale. We conclude FSA's lien was not extinguished by the foreclosure of the senior lien held by Commerce Bank. The district court properly determined the surplus should be paid to FSA. No. 09-1073. [0-068] LACHNER v. HEILEMAN Appeal from the Iowa District Court for Dallas County, William H. Joy, Judge. AFFIRMED. Considered by Sackett, C.J., and Doyle and Danilson, JJ. Opinion by Sackett, C.J. (5 pages $2.50) Nathaniel J. Heileman appeals from the district court's refusal to modify a custody order concerning his son, who was born in October of 2005. OPINION HOLDS: Nathaniel did not prove a material and substantial change in circumstances or that he could provide superior care. No. 09-1089. [0-069] WALKER v. DEMOSS Appeal from the Iowa District Court for Story County, Timothy J. Finn, Judge. AFFIRMED. Considered by Vogel, P.J., Eisenhauer, J., and Zimmer, S.J. Opinion by Zimmer, S.J. (7 pages $3.50) Terrance Walker and Dana DeMoss are the parents of a child, who was born in 1993. Terrance and Dana never married. In 1995 Terrance was ordered to pay child support of $135.67 per month. In 2009, the CSRU recommended that child support be increased to $199.14 per month. Dana did not respond to the CSRU's request for information; however, the CSRU obtained information that Dana was receiving $445 per month in Social Security disability benefits. The district court entered a decision on June 2, 2009, increasing Terrance's child support obligation to $199.14 per month. Terrance appeals. OPINION HOLDS: On appeal, Terrance renews his claim that the evidence presented at the hearing in district court was insufficient to justify a modification of his child support. He argues that the CSRU did not present any evidence to show that Dana's total monthly income was solely from Social Security disability benefits. Upon our de novo review of the evidence presented at the hearing, we conclude the district court properly modified Terrance's child support obligation. No. 09-1879. [0-076] IN RE K.L.C. Appeal from the Iowa District Court for Johnson County, Stephen C. Gerald II, District Associate Judge. AFFIRMED. Considered by Vogel, P.J., Eisenhauer, J., and Miller, S.J. Opinion by Miller, S.J. (7 pages $3.50) A father appeals from a juvenile court order terminating his parental rights to two children. OPINION HOLDS: II. The State proved by clear and convincing evidence the grounds for termination pursuant to Iowa Code section 232.116(1)(h). II. Termination of the father's parental rights is in the best interest of the children. No. 09-0760. [0-088] STATE v. MARQUETTE Appeal from the Iowa District Court for Linn County, Fae Hoover-Grinde, Judge. CONVICTIONS AFFIRMED, SENTENCE VACATED, AND REMANDED FOR RESENTENCING. Considered by Vogel, P.J., and Eisenhauer, J., and Mahan, S.J. Opinion by Eisenhauer, J. (5 pages $2.50) Shelly Lynn Marquette appeals from the judgment and sentence entered following her Alford plea to assault with the intent to commit serious injury, assault by use or display of a dangerous weapon, and assault causing bodily injury. OPINION HOLDS: Marquette contends her trial counsel was ineffective in failing to object to sentencing on all three counts of assault as they arose out of a single act and, therefore, the sentences violated the Double Jeopardy Clause. As the record shows three separate assaults took place, counsel did not breach an essential duty in failing to object. Because the district court failed to state any reasons for imposing consecutive sentences, we vacate the sentence and remand to the district court for resentencing. No. 09-0560. [9-769] POMEROY v. TURKLE-CLARK ENVIRONMENTAL CONSULTING, L.C. Appeal from the Iowa District Court for Hardin County, Dale E. Ruigh, Judge. AFFIRMED. Heard by Vogel, P.J., Eisenhauer, J., and Mahan, S.J. Opinion by Mahan, S.J. (4 pages $2.00) David Pomeroy was employed by Rural Iowa Waste Management Association (RIWMA) as the operations supervisor. At the same time, Turkle-Clark Environmental Consulting, L.C., (TEC), had a contract with RIWMA to provide landfill management services, and Cindy Turkle of that company was Pomeroy's supervisor. Pomeroy was discharged from his employment with RIWMA in April 2006. He filed suit against TEC, Turkle, and others on theories of: (1) wrongful termination in violation of the Iowa Whistleblower Statute; (2) defamation; (3) improper interference with an employment contract; and (4) intentional infliction of emotional distress. The district court granted the defendants' motion for summary judgment. The court found there was no evidence Turkle acted in retaliation. Pomeroy appeals. OPINION HOLDS: After reviewing the record and arguments on appeal, we agree with the district court's findings and conclusions. We affirm the decision of the district court. No. 09-0379. [9-925] STATE v. BARTLETT Appeal from the Iowa District Court for Hardin County, Kim M. Riley, District Associate Judge. AFFIRMED. Considered by Eisenhauer, P.J., Potterfield, J., and Mahan, S.J. Opinion by Mahan, S.J. Eisenhauer, J., concurs; Potterfield, J., concurs specially. (9 pages $4.50) Steven Bartlett appeals his conviction for operating while intoxicated, in violation of section 321J.2(1)(a) (2007). He had been in a single car accident. Bartlett refused to provide a blood sample. He also refused to check on the implied consent form as to whether he consented, and he refused to sign the form. OPINION HOLDS: I. Bartlett asserts the district court erred in overruling his objection to a jury instruction regarding his refusal to submit to a chemical test. This appeal concerns the admission of evidence of a refusal under section 321J.16. We conclude Bartlett's complete failure to cooperate was "tantamount to a declination" and was an implied refusal of any testing. Having so found, we conclude the district court properly overruled Bartlett's objection to the instruction under section 321J.16. II. Bartlett contends he received ineffective assistance of counsel at his criminal trial because his defense counsel failed to object to the marshalling instruction. Bartlett has not shown a reasonable probability the outcome of the criminal trial would have been different if defense counsel had objected to the marshalling instruction. There was clear evidence to show Bartlett had been operating while intoxicated. We have carefully reviewed Bartlett's other two claims of ineffective assistance and find them to be without merit. We affirm Bartlett's conviction for operating while intoxicated. SPECIAL CONCURRENCE ASSERTS: Though prior case law held that chemical test results would not be suppressed under similar facts, Bartlett did not seek to suppress evidence, but rather objected to a jury instruction. Bartlett's refusal of a blood test is not a "refusal to submit" under Iowa Code section 321J.6(2). Therefore, the court should have sustained Bartlett's objection to the jury instruction. However, because the evidence of Bartlett's intoxication was overwhelming, the jury instruction at issue did not result in prejudice. No. 09-0656. [9-976] IN RE MARRIAGE OF WEITZELL Appeal from the Iowa District Court for Polk County, Karen A. Romano (temporary order), Arthur E. Gamble (order on jurisdiction), Judges. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Heard by Sackett, C.J., and Doyle and Danilson, JJ. Opinion by Sackett, C.J. Doyle, J., concurs; Danilson, J. dissents in part. (6 pages $3.00) Rex W. Weitzell appeals from a temporary fee order and an alleged violation of an asset preservation order. We affirm in part, reverse in part and remand. Rex and Deanna were engaged in divorce proceedings when Deanna died. Prior to Deanna's deaththe district court had entered a ruling that provided Rex pay $25,000 to Deanna as temporary attorney fees. Rex filed an Iowa Rule of Civil Procedure 1.904(2) motion challenging the attorney fee award. A hearing was held to determine if the district court had jurisdiction to rule on the pending 1.904(2) motion. On the day of the hearing Rex filed a motion for declaratory judgment in the dissolution asking that a deed executed by Deanna purporting to change ownership in the parties' personal residence be found void and in violation of an asset preservation order. The district court found due to Deanna's death it had no jurisdiction to rule on either motion. OPINION HOLDS: ATTORNEY FEE AWARD. The attorney fee award is a property right that was determined and reduced to judgment prior to Deanna's death. The district court erred in finding that Deanna's death deprived it of jurisdiction to address it. We reverse and remand to the district court to consider the motion. DECLARATORY JUDGMENT. Rex contends the district court should have addressed his motion for a declaratory judgment. The motion was filed subsequent to Deanna's death. Unlike the order fixing attorney fees there was no judgment entered establishing property rights prior to Deanna's death. The death of a party to a dissolution of marriage action abates the dissolution proceeding. The district court correctly ruled it did not have jurisdiction to address the motion. We affirm that finding and dismiss this claim without prejudice. PARTIAL DISSENT ASSERTS: I concur in all respects except to the remand to district court to consider Rex's motion to amend or enlarge, which motion is not properly used to raise new issues or new facts. Because Deanna's death would constitute a new fact, remanding this action back to district court will be of no avail and will further delay the disposition of this issue. I would proceed to review the temporary attorney fee award. No. 08-1988. [9-1003] IN RE MARRIAGE OF RIDOUT Appeal from the Iowa District Court for Madison County, Peter A. Keller, Judge. AFFIRMED. Considered by Eisenhauer, P.J., Potterfield, J., and Huitink, S.J. Opinion by Eisenhauer, P.J. (4 pages $2.00) Petitioner-appellant seeking to hold husband in contempt appeals the court's motion in limine ruling and attorney fee award. OPINION HOLDS: Appellee did not waive his objection to the admission of privileged testimony. Attorney fees awarded to appellee are reasonable. No. 09-0729. [9-1054] THE BANK OF NEW YORK MELLON v. FOSTER Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge. AFFIRMED. Considered by Eisenhauer, P.J., and Potterfield, J., and Huitink, S.J. Opinion by Huitink, S.J. (4 pages $2.00) Rodney Foster appeals from the district court ruling denying his combined motions seeking to set aside a sheriff's sale, stay enforcement of a foreclosure judgment, and to set aside the judgment and retry the foreclosure action. He contends the court erred in setting aside the foreclosure judgment, claiming he did not waive his homestead rights and the lender did not make diligent efforts to serve him with notice and the petition. OPINION HOLDS: We conclude the plaintiff made reasonable efforts to serve Foster where five attempts were made to effectuate personal service, notice was mailed, and notice was published. Foster's remaining claims were waived by failing to participate in the foreclosure action. No. 09-0798. [9-1056] G & K SERVICES, INC. v. SENECA WASTE SOLUTIONS, L.L.C. Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge. AFFIRMED. Considered by Sackett, C.J., Vaitheswaran and Danilson, JJ. Opinion by Sackett, C.J. (11 pages $5.50) Plaintiff-appellant ("G & K") appeals and defendant-appellee ("Seneca") cross appeals from the district court ruling in a breach-of-contract action. G & K contends the court erred in determining it had a continuing duty to perform the contract after Seneca's bad faith. It also challenges the court's order regarding payment for the transcript on appeal. Seneca contends the court erred in denying its counterclaim for damages. OPINION HOLDS: Appeal. We conclude, as did the district court, that Seneca terminated the contract for cause—G & K's breach of the service guarantee and subsequent failure to cure. The district court did not err in its understanding of the contract or in its application of the contract terms to the facts before it. The issue of the costs of the transcript is resolved in our taxation of costs on appeal. Cross-appeal. At no time prior to the filing of the suit by G & K against Seneca did Seneca ever advise G & K that it had incurred expenses as a result of the deficiencies in service and was seeking reimbursement. The contract provided for refunds as "damages." Seneca never sought any refund that G & K did not provide. We agree with the district court's conclusion that Seneca failed to establish it was entitled to damages for other expenses it incurred. No. 09-0914. [9-1058] HODSON v. WYKOFF INDUSTRIES Appeal from the Iowa District Court for Polk County, Eliza A. Ovrom, Judge. REVERSED AND REMANDED. Considered by Eisenhauer, P.J., Potterfield, J., and Huitink, S.J. Opinion by Eisenhauer, P.J. (3 pages $1.50) Employee appeals from a district court judicial review ruling affirming the denial of additional permanent benefits in a review-reopening proceeding. OPINION HOLDS: We reverse and remand for the commissioner to determine, on the record already made, whether claimant has met the newly-clarified burden of proof enunciated in Kohlhaas v. Hog Slat, Inc., ___ N.W.2d ___ (Nov. 24, 2009). No. 09-0082. [9-650] ALLAMAKEE COUNTY v. SCHAUMBERG Appeal from the Iowa District Court for Allamakee County, Margaret L. Lingreen, Judge. AFFIRMED. Heard by Vogel, P.J., and Doyle and Mansfield, JJ. Opinion by Vogel, P.J. (9 pages $4.50) Thomas J. Schaumberg, individually and as trustee of the Thomas J. Schaumberg Living Trust (Schaumberg), appeals from the district court's grant of summary judgment in favor of Allamakee County and the Allamakee County Board of Adjustment (Board). This litigation concerns property owned by Schaumberg in Allamakee County. On appeal, Schaumberg argues that the county zoning ordinance does not apply to his property located in a private subdivision and even if it is applicable, his property is not a "corner lot" required to have a side-yard setback of thirty-feet. Finally, if his other arguments fail, he challenges the constitutionality of the zoning ordinance based upon the lack of a definition of a "thoroughfare" in the ordinance. OPINION HOLDS: We find the Allamakee County zoning ordinance applies to Schaumberg's property regardless of whether the bordering roads are public or private and that Schaumberg's property is a corner lot. Finally, we find the ordinance is not unconstitutionally vague because a reasonable construction of the ordinance would include cul de sac within the definition of a street, as it provides the principal means of access to the abutting property. Therefore, we affirm. No. 08-1534. [9-998] STATE v. ELKEN Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge. AFFIRMED. Considered by Vogel, P.J., and Doyle and Mansfield, JJ. Opinion by Vogel, P.J. (9 pages $4.50) Defendant Jerredd Elken appeals from the judgment entered on his convictions for conspiracy to manufacture a controlled substance as a habitual offender. Elken contends his trial counsel was ineffective for failing to object to (1) a comment regarding post-arrest silence, (2) a comment regarding his failure to accept responsibility, and (3) submission of a general intent instruction. Elken also asserts the district court allowed a statement by his family he claims was hearsay. OPINION HOLDS: We affirm Elken's convictions. Failure to object to submission of both general and specific intent instructions was not a breach of duty, as the marshalling instructions plainly defined the necessary intent to be proven to the jury; and Grandstaff's testimony was not hearsay, as it was not offered to prove the truth of the matter asserted, but to explain her responsive conduct. We preserve two issues for possible post conviction proceedings. No. 09-0559. [9-1012] IN RE MARRIAGE OF STOCKDALE Appeal from the Iowa District Court for Pocahontas County, Joel E. Swanson, Judge. REVERSED AND REMANDED. Heard by Vogel, P.J., Eisenhauer, J., and Mahan, S.J. Opinion by Vogel, P.J. (8 pages $4.00) Angela Stockdale (n/k/a Angela Pattee), appeals from the district court's order denying her application to modify physical care of her and Joshua Stockdale's two children. OPINION HOLDS: Because we find the boys exhibited behavioral changes while in Joshua's care, communication between he and Angela was disconnected, and based on Joshua's unwillingness to share critical information with Angela, we find Angela did prove that since October 2005 there has been a material and substantial change sufficient to warrant a change from joint physical care to physical care with Angela. No. 09-0631. [9-1014] STATE v. SCHROCK Appeal from the Iowa District Court for Washington County, Michael R. Mullins, Judge. AFFIRMED. Heard by Vogel, P.J., Eisenhauer, J., and Mahan, S.J. Opinion by Vogel, P.J. (9 pages $4.50) Joseph H. Schrock appeals from his conviction and sentence of child endangerment causing serious injury. He asserts the district court erred in (1) finding sufficient evidence was presented to convict him of the charges, (2) allowing opinion testimony of Schrock's intoxication, and (3) allowing evidence of his alleged intoxication; he also raises a double jeopardy challenge and other issues pro se. OPINION HOLDS: The record contained substantial evidence that Schrock knowingly acted in a manner that created a substantial risk of harm to his son, and the court did not abuse its discretion in allowing opinion testimony referencing Schrock's intoxication, or denying Schrock's motion for a second mistrial. Further, the district court correctly found Schrock's assertion of a double jeopardy violation must fail. No. 09-1158. [0-017] MOSS v. KRAUSE Appeal from the Iowa District Court for Polk County, Don C. Nickerson, Judge. REVERSED AND REMANDED. Heard by Vogel, P.J., Eisenhauer, J., and Mahan, S.J. Opinion by Vogel, P.J. (9 pages $4.50) The parties to this appeal are property owners in Glen Oaks, a housing development in West Des Moines, Iowa. On appeal, the Mosses argue that the district court erred in finding that the Krauses were not required to obtain approval of the Owners Association before subdividing their property. OPINION HOLDS: We find the applicable section of the Glen Oaks Covenants is unambiguous and requires the Owners Association to approve any change in boundary lines. The Krauses failed to comply with the covenants in subdividing their property. Therefore, we reverse and remand. No. 09-0836. [0-034] MARRIAGE OF CHRISTY Appeal from the Iowa District Court for Wapello County, E.R. Meadows, Judge. AFFIRMED AS MODIFIED. Considered by Vogel, P.J., Eisenhauer, J., and Zimmer, S.J. Opinion by Vogel, P.J. (4 pages $2.00) Neil Christy appeals from the decree dissolving his and Cynthia Christy's marriage. He asserts the district court erred in regard to the property division. OPINION HOLDS: Upon our de novo review, we find the property division is equitable. The district court carefully examined the evidence presented and applied the appropriate law, which resulted in an equitable distribution of the parties' property and debts. Additionally, we modify the decree to reflect the parties' agreement as to three pieces of antique furniture. Therefore, we affirm as modified. No. 09-1144. [0-038] IN RE T.D. Appeal from the Iowa District Court for Warren County, Kevin A. Parker, District Associate Judge. ADOPTION AFFIRMED; REMANDED FOR HEARING ON VISITATION. Considered by Vogel, P.J., Eisenhauer, J., and Mahan, S.J. Opinion by Vogel, P.J. (10 pages $5.00) The grandparents of T.D. appeal the district court's denial of their motion to intervene in the adoption of T.D. and denial of their request to incorporate a prior visitation agreement. They argue that the Nevada court orders gave them the right to intervene and under the Full Faith and Credit doctrine of Article IV, Section I, of the United States Constitution, as well as Iowa Code sections 626A.1 and 626A.2, the Nevada court orders must be given effect by the Iowa courts. OPINION HOLDS: We find that under Full Faith and Credit, both Iowa Rule of Civil Procedure 1.407(1) and Iowa Code section 600.11 must be read to allow the grandparents' intervention. We conclude that the district court should have granted the grandparents' motion to intervene. Therefore, we affirm the adoption of T.D. by the adoptive parents, but remand for the limited purpose of allowing the grandparents to intervene to request visitation and have the district court rule on the merits of their request. No. 09-1149. [0-070] IN RE MARRIAGE OF IHNS Appeal from the Iowa District Court for Cedar County, J. Hobart Darbyshire, Judge. AFFIRMED. Considered by Vogel, P.J., Eisenhauer, J., and Zimmer, S.J. Opinion by Vogel, P.J. (4 pages $2.00) Steven Ihns appeals from the district court's order denying his second request to modify the child support provision of the parties' dissolution decree. OPINION HOLDS: We agree with the district court Steven failed to carry his burden of proving a material and substantial change in circumstances since the prior modification hearing. We find Steven's arguments forwarded on appeal without merit and affirm the district court. No. 09-0806. [9-979] JORDAN v. PUTNEY Appeal from the Iowa District Court for Floyd County, Bryan H. McKinley, Judge. AFFIRMED. Considered by Sackett, C.J., and Vaitheswaran and Danilson, JJ. Opinion by Vaitheswaran, J. (4 pages $2.00) A plaintiff appeals the district court's dismissal of her lawsuit for failure to timely and properly serve the defendants. OPINION HOLDS: Dismissal was proper because the plaintiff did not first obtain court approval before serving the defendants by means other than personal service, and she also failed to comply with other rules of service that do not require prior court approval. No. 09-0551. [9-1010] IN RE MARRIAGE OF STOCK Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge. AFFIRMED. Heard by Vaitheswaran, P.J., and Potterfield and Mansfield, JJ. Opinion by Vaitheswaran, P.J. (5 pages $2.50) A mother appeals from the custodial provisions of a dissolution decree, claiming the district court erred in placing physical care of the parties' two minor children with their father. OPINION HOLDS: We affirm the judgment of the district court upon our de novo review of the record. No. 09-0699. [9-1053] MCNEILUS HOG FARMS v. FARM BUREAU MUTUAL INSURANCE CO. Appeal from the Iowa District Court for Bremer County, Colleen D. Weiland, Judge. AFFIRMED. Heard by Vaitheswaran, P.J., and Eisenhauer and Potterfield, JJ. Opinion by Vaitheswaran, P.J. (6 pages $3.00) McNeilus Hog Farms, Leon McNeilus, and Lloyd McNeilus (the McNeiluses) appeal a summary judgment ruling in favor of their insurance company, Farm Bureau Mutual Insurance Company. The McNeiluses claim the court erred in concluding that Farm Bureau did not have a duty to defend and indemnify them in the underlying litigation. OPINION HOLDS: We conclude the "business pursuits" exclusion of the McNeiluses' insurance policy applied and, based on that exclusion, Farm Bureau was not obligated to defend and indemnify the McNeiluses. Accordingly, the district court did not err in granting summary judgment in favor of Farm Bureau. No. 09-0918. [9-1059] MCCUNE v. STATE Appeal from the Iowa District Court for Polk County, Donna L. Paulson, Judge. AFFIRMED. Heard by Vaitheswaran, P.J., and Potterfield and Mansfield, JJ. Opinion by Vaitheswaran, P.J. (8 pages $4.00) A former employee appeals the district court's grant of summary judgment for the State of Iowa in her age discrimination lawsuit against the State. OPINION HOLDS: Because the State's Sick Leave Insurance Program is a retirement plan or benefit system not implemented for the purpose of evading the provisions of the Iowa Civil Rights Act, the district court correctly determined that it fell within an exception to the ICRA and did not err in granting summary judgment in the State's favor. No. 09-0725. [9-773] MARRIAGE OF ROTTINGHAUS Appeal from the Iowa District Court for Bremer County, James M. Drew, Judge. AFFIRMED AS MODIFIED. Heard by Vaitheswaran, P.J., and Potterfield and Mansfield, JJ. Opinion by Potterfield, J. (11 pages $5.50) Matthew Rottinghaus appeals from the district court's award of physical care, division of property, and award of attorney fees. Karmen Rottinghaus cross-appeals from the district court's award of attorney fees and decision not to award alimony. She also requests appellate attorney fees. OPINION HOLDS: I. We affirm the district court's physical care decision. II. The district court's award of the marital property is equitable. III. The district court properly allocated personal property and debts except in two instances, which require an increase of Karmen's equalization payment by $1500. IV. We affirm the district court's finding that Karmen is not entitled to alimony. V. We affirm the district court's award of attorney fees. VI. We decline to award appellate attorney fees. No. 09-0255. [9-1004] STATE v. HESTON Appeal from the Iowa District Court for Jefferson County, Lucy J. Gamon, District Associate Judge. REVERSED. Considered by Eisenhauer, P.J., Potterfield, J., and Huitink, S.J. Opinion by Potterfield, J. (5 pages $2.50) Kevin Heston Jr. appeals following his conviction, judgment, and sentence for leaving the scene of a personal injury accident, arguing: (1) there was insufficient evidence to support the verdict, and (2) his counsel was ineffective for failing to object to the marshalling instruction for leaving the scene of a personal injury accident. OPINION HOLDS: Because the State failed to prove that Heston knew or should have reasonably anticipated the accident resulted in injury, there was insufficient evidence to support the verdict. No. 09-0794. [9-1017] LONERGAN v. STATE PUBLIC DEFENDER Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor, District Associate Judge. AFFIRMED AS MODIFIED. Considered by Eisenhauer, P.J., Potterfield, J., and Huitink, S.J. Opinion by Potterfield, J. (7 pages $3.50) The State Public Defender seeks review of a district court ruling finding good cause for a late-filed application to exceed fee limitations. The SPD contends the court abused its discretion in finding there was good cause for the late filing of the application to exceed those limitations. OPINION HOLDS: The court found Lonergan's work to protect these children was so urgent or so compelling that it was reasonable to proceed without prior court order. The district court was in the best position to know the urgency of the situation and the actions of counsel. Without a record to the contrary, we affirm the court's finding of good cause for late filing of the application to exceed fee guidelines. We thus affirm the order of the court finding good cause for the late filing of the fee application and good cause for exceeding the fee limitations and remand for entry of a judgment consistent with this opinion. No. 08-1717. [9-1037] BEAR v. STATE Appeal from the Iowa District Court for Poweshiek County, James Q. Blomgren, Judge. AFFIRMED. Considered by Eisenhauer, P.J., Potterfield, J., and Huitink, S.J. Opinion by Potterfield, J. (3 pages $1.50) Archie Robert Bear appeals from the district court's denial of his second application for postconviction relief, contending it was impermissible for the court to instruct the jury that malice could be inferred from the commission of a forcible felony in the context of a second-degree murder prosecution. Bear asserts that to the extent his claim was not properly preserved, his counsel was ineffective. Bear also argues Heemstra applies retroactively to his case. OPINION HOLDS: I. Bear's claim regarding the jury instruction and his claim of ineffective assistance of counsel are time-barred. II. Heemstra does not apply retroactively to Bear's case. No. 09-0442. [9-1048] BERDO v. CITY OF WASHINGTON Appeal from the Iowa District Court for Washington County, Dan F. Morrison, Judge. AFFIRMED. Considered by Eisenhauer, P.J., Potterfield, J., and Huitink, S.J. Opinion by Potterfield, J. (8 pages $4.00) Plaintiffs John W. Berdo, the Carrie W. Berdo Trust, and Berdo Farms, Inc. appeal from the district court's denial of the motion to tax attorney/appraisal fees and costs incurred in their appeal to the district court from the compensation commission's award in a condemnation proceeding. Berdo has filed a motion for limited remand in this appeal. OPINION HOLDS: We deny the motion for limited remand and affirm the district court's denial of the motion to tax attorney/appraisal fees and costs sought pursuant to Iowa Code section 6B.34. The City did not "decline" to take the property at issue. The proceedings by which it might have taken the property were found to be void, a finding based on the expiration of the statutory time limit, which is concededly obvious. Absent valid condemnation proceedings, the City has no rightor ability to take the plaintiffs' property. Consequently, the City's decision not to appeal is not an abandonment, and section 6B.34 does not come into play. No. 09-0975. [9-1062] STATE v. LENOIR Appeal from the Iowa District Court for Des Moines County, Michael G. Dieterich, District Associate Judge. AFFIRMED. Considered by Eisenhauer, P.J., Potterfield, J., and Huitink, S.J. Opinion by Potterfield, J. (5 pages $2.50) Bennie Lenoir appeals from the consecutive sentence imposed by the district court on his guilty plea to driving while barred, arguing the district court erred by: (1) not affording him an opportunity for allocution; and (2) failing to give specific reasons for imposing a consecutive sentence. OPINION HOLDS: I. The district court afforded Lenoir the right to allocution. II. The district court's reasons for imposing a consecutive sentence were sufficient. No. 09-0228. [0-010] WILLIAMS v. STATE Appeal from the Iowa District Court for Woodbury County, Gary E. Wenell, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Mansfield, JJ. Opinion by Potterfield, J. (7 pages $3.50) Robert Williams III appeals from the district court's ruling denying his petition for postconviction relief, contending his trial counsel was ineffective and as a result, his waiver of jury trial was ineffective. OPINION HOLDS: Trial counsel's recommendation to waive jury trial fell within the range of normal competency. Williams has failed to establish his decision to waive jury trial was not knowingly and voluntarily made. We therefore affirm. No. 09-1878. [0-075] IN RE I.J.S. Appeal from the Iowa District Court for Mahaska County, Lucy J. Gamon, District Associate Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Mansfield, JJ. Opinion by Potterfield, J. (5 pages $2.50) Crystal appeals the termination of her parental rights, arguing: (1) termination of her parental rights is not in her child's best interests given their bond; and (2) the State did not use reasonable efforts to reunite her with her child. OPINION HOLDS: I. A termination of Crystal's parental rights best provides for her child's safety, long-term growth, and physical, mental, and emotional needs. II. Crystal was provided with extensive services but failed to benefit from them because of her own lack of effort. No. 08-1908. [9-1002] STATE v. HARLSTON Appeal from the Iowa District Court for Dubuque County, Monica L. Ackley, Judge. AFFIRMED. Heard by Sackett, C.J., and Doyle and Danilson, JJ. Opinion by Doyle, J. (9 pages $4.50) Defendant Kenyatta Harlston Sr. appeals the judgment and sentence entered upon his conviction for second-degree murder, contending the district court erred in failing to declare a mistrial or at least remove a particular juror, after a witness pointed out the juror as resembling a participant in the fight that led to the death of the victim. Additionally, Harlston contends his trial counsel was ineffective in several respects. OPINION HOLDS: Because we find the district court's admonition to the jury was sufficient to cure any prejudice that may have resulted from the witness's pointing out a juror as resembling a participant in the fight, we conclude the district court did not abuse its discretion in not granting Harlston's motion for mistrial. We also find the record is insufficient to address Harlston's ineffective-assistance-of-counsel claims on direct appeal and therefore preserve his claims for possible postconviction relief proceedings. No. 09-0462. [9-1049] STATE v. JACKSON Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge. AFFIRMED. Considered by Vogel, P.J., and Doyle and Mansfield, JJ. Opinion by Doyle, J. (17 pages $8.50) Isaac Peter Jackson appeals following the judgment and sentence entered upon his conviction for first-degree arson in violation of Iowa Code sections 712.1(1) and 712.2 (2007), contending the evidence was insufficient to support the verdict and his trial counsel was ineffective in several respects. Additionally, he raises several pro se claims. OPINION HOLDS: Because we conclude substantial evidence supports the jury's verdict of arson in the first degree, Jackson's counsel was not ineffective for failing to properly challenge the composition of the jury panel, and Jackson failed to adequately present his pro se issues for appeal, we affirm Jackson's conviction and sentence. No. 09-0923. [9-1060] CONVERSE v. HONOHAN Appeal from the Iowa District Court for Johnson County, Kristin L. Hibbs, Judge. AFFIRMED. Considered by Vogel, P.J., and Doyle and Mansfield, JJ. Opinion by Doyle, J. Potterfield, J., takes no part. (7 pages $3.50) Lewis Converse appeals from a district court ruling entering summary judgment in favor of attorney Jay Honohan and Honohan, Epley, Braddock, and Brenneman, L.L.P. in a legal malpractice action alleging Honohan failed to effectuate a testator's intent to protect Converse's inheritance from his creditors through a spendthrift trust provision. OPINION HOLDS: As there is no evidence any act by Honohan frustrated the testator's intent as expressed in her will, we conclude Converse's legal malpractice action against Honohan must fail. The judgment of the district court is affirmed. No. 09-0646. [0-011] STATE v. BROGHAMMER Appeal from the Iowa District Court for Cerro Gordo County, Carlynn D. Grupp, District Associate Judge. AFFIRMED. Considered by Sackett, C.J., and Doyle and Danilson, JJ. Opinion by Doyle, J. (5 pages $2.50) Jennifer Broghammer appeals the sentence imposed following the revocation of her deferred judgment on a charge of possession of a controlled substance. She argues the sentencing court abused its discretion by failing to state reasons for the sentence imposed. OPINION HOLDS: We find the district court's decision was within statutory limits and was neither unreasonable nor based on insufficient or untenable grounds. The court properly considered and weighed numerous appropriate factors in arriving at a sentence, and it clearly stated valid reasons for the sentence imposed. The court's sentencing decision was well within its discretion, and we will not disturb it on appeal. No. 09-0695. [0-012] TAYLOR v. FARM BUREAU MUTUAL INS. CO. Appeal from the Iowa District Court for Woodbury County, Michael S. Walsh, Judge. AFFIRMED. Heard by Sackett, C.J., and Doyle and Danilson, JJ. Opinion by Doyle, J. (15 pages $7.50) Cecelia Taylor appeals from a district court ruling denying her personal injury action against her insurer, Farm Bureau Mutual Insurance Company, based on her claimed exposure to mold following the flooding of her home. The court determined Taylor did not establish she was injured as a result of her exposure to mold, which Taylor claims was in error. She additionally claims the court erred in not excluding or limiting the testimony of Farm Bureau's expert medical witnesses. OPINION HOLDS: Taylor has not shown the evidence in this case was so overwhelming that she established causation as a matter of law, as required to prevail on appeal due to the district court's determination of evidentiary insufficiency. The court did not abuse its discretion in admitting the testimony of Farm Bureau's expert medical witnesses. We therefore affirm the judgment of the district court. No. 08-1842. [0-025] STATE v. RODRIGUEZ-SANTIAGO Appeal from the Iowa District Court for Polk County, Arthur E. Gamble and Don C. Nickerson, Judges. AFFIRMED. Considered by Sackett, C.J., and Doyle and Danilson, JJ. Opinion by Doyle, J. (11 pages $5.50) Felipe Rodriguez-Santiago appeals following his conviction and sentence for forgery, contending the evidence was insufficient to support his conviction because the State did not prove he intended to defraud or injure, and the district court erred in overruling his motion to suppress. OPINION HOLDS: Because we conclude intent to defraud could be inferred from the counterfeited document containing the defendant's name and signature, we find the evidence was sufficient to support his conviction for forgery. Additionally, because we find the search warrant did not omit material facts or recklessly disregarded the truth, we conclude the district court did not err in overruling his motion to suppress. We therefore affirm the defendant's conviction and sentence. No. 09-0652. [9-771] IN RE MARRIAGE OF KELLETT Appeal from the Iowa District Court for Muscatine County, Marlita A. Greve, Judge. AFFIRMED AS MODIFIED AND REMANDED. Heard by Vaitheswaran, P.J., and Potterfield and Mansfield, JJ. Opinion by Mansfield, J. (13 pages $6.50) Elizabeth Zogg appeals an order of the district court modifying the parties' prior dissolution decree and granting Christopher Kellett physical care of the parties' children. Elizabeth argues the district court erred in finding a substantial and material change in circumstances to warrant modification and in finding Christopher would provide superior care. Elizabeth further asserts the visitation schedule under the modified decree was not appropriate. OPINION HOLDS: I. The district court made a credibility determination in finding Elizabeth was "actually driving a wedge between these children and their dad." This credibility determination must be afforded deference, and the finding is sufficient to constitute a substantial and material change in circumstances. II. The district court found Chris would provide superior care primarily because Elizabeth had manipulated the children to fear their father and because Chris is more available for the children after school. Again, the district court's finding was based largely on a credibility determination to which we defer. We conclude Chris demonstrated the ability to provide superior care. III. Elizabeth should receive additional summer visitation. Elizabeth has been the children's primary caregiver for their entire lives. There is no evidence the children want Elizabeth to have a diminished role in their lives, and the proximity of the parties makes increased visitation feasible. Accordingly, we modify the summer visitation schedule and affirm the modified decree in its entirety. We remand the case so the district court has an opportunity to modify child support, if necessary. No. 09-0549. [9-1009] COOPER v. IOWA REALTY CO., INC. Appeal from the Iowa District Court for Madison County, Dale Hagen, Judge. AFFIRMED. Heard by Potterfield, P.J., and Doyle and Mansfield, JJ. Opinion by Mansfield, J. (13 pages $6.50) A home seller sued the buyers' real estate agent. The seller alleged that the agent owed a duty to disclose to her the buyers' prior financial difficulties, and that the agent breached that duty, causing her to suffer damages. The district court granted a directed verdict in favor of the agent at the close of evidence. OPINION HOLDS: The district court properly found that the agent did not have a duty to disclose financial information of the buyers to the seller and that the seller did not have sufficient proof of damages. Consequently, the district court did not err in granting a directed verdict in favor of the defendants. No. 09-0953. [0-015] STATE v. PAGEL Appeal from the Iowa District Court for Bremer County, Christopher C. Foy, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Mansfield, JJ. Opinion by Mansfield, J. (9 pages $4.50) The State appeals a district court order dismissing a harassment charge for a speedy indictment violation under Iowa Rule of Criminal Procedure 2.33(2)(a). The State argues that the forty-five day deadline of rule 2.33(2)(a) was not triggered because the defendant Paul Pagel was not "arrested" for harassment, despite several verbal statements by the police to the contrary. Instead, the State relies on a subsequent charging decision reached approximately fifty minutes after Pagel had been taken to the jail. OPINION HOLDS: Pagel was arrested for harassment. He had been handcuffed, taken into custody, transported to jail, and on at least four separate occasions told he had been arrested for harassment. Although the officer decided to "skip" the harassment charge and pursue a different charge, that does not undo the effects of the initial decision to arrest Pagel for harassment. The district court's ruling is affirmed. No. 09-1051. [0-066] STATE v. PEREZ Appeal from the Iowa District Court for Black Hawk County, Jon C. Fister, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Mansfield, JJ. Opinion by Mansfield, J. (6 pages $3.00) Ofelia Perez appeals from the suspended five-year sentence imposed following her Alford plea to the charge of possession of a controlled substance (marijuana) with intent to deliver while within one thousand feet of a school in violation of Iowa Code sections 124.401(1)(d) and 124.401B (2007). She claims the district court abused its discretion by denying her request for a deferred judgment. OPINION HOLDS: The record demonstrates the district court did not rely solely on the circumstances of the offense, but rather considered and weighed numerous appropriate factors in arriving at a sentence, and specifically stated so. We find no abuse of discretion and affirm. No. 09-1007. [0-093] HUFFMAN v. AADG, INC. Appeal from the Iowa District Court for Cerro Gordo County, Paul W. Riffel, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Mansfield, JJ. Opinion by Mansfield, J. (11 pages $5.50) Ryan Huffman appeals a district court order granting summary judgment to AADG, Inc., his employer. Huffman claims that because he filed two workers' compensation claims, he was not allowed to return to work for a period of time, was reassigned to jobs with lower pay, and was subjected to a hostile work environment. He alleges that this conduct was retaliatory and actionable under Iowa law. OPINION HOLDS: I. Even assuming a worker who has been constructively discharged for filing a workers' compensation claim has a cause of action in Iowa, no reasonable factfinder could conclude that Huffman has been constructively discharged. II. We need not address whether an employee has an actionable claim when an employer demotes him or her in retaliation for filing a workers' compensation claim, because Huffman was not demoted. Here, Huffman challenges his employer's failure to find him work during the period when he was receiving temporary disability benefits. Huffman does not, however, question the adequacy of the benefits he received. In short, Huffman seeks to establish a new common law claim for "failure to take an employee off temporary disability." We believe this new claim would improperly intrude upon the workers' compensation system, and is foreclosed by Iowa Code section 85.20 (2007). III. Huffman's claim that he was subjected to harassment for having filed workers' compensation claims is squarely foreclosed by Below v. Skarr, 569 N.W.2d 510 (Iowa 1997). No. 10-0025. [0-102] IN RE I.O. Appeal from the Iowa District Court for Black Hawk County, Daniel L. Block, Associate Juvenile Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Mansfield, JJ. Opinion by Mansfield, J. (5 pages $2.50) A mother appeals the juvenile court order terminating her parental rights. OPINION HOLDS: Because the mother's petition on appeal does not set forth the specific issues raised on appeal, we will confine our review to the question of whether termination is in the child's best interests. In this case, the mother had pled guilty to a child endangerment charge resulting in a sentence that prohibits her from caring for a child for the next two to five years. For this reason, and others, termination is in the child's best interests. The juvenile court order terminating the mother's parental rights is affirmed. No. 09-0597. [9-1051] QWEST BUSINESS & GOVERNMENT SERVS. v. LAWCHEK, LTD. Appeal from the Iowa District Court for Linn County, James H. Carter, Judge. AFFIRMED. Heard by Sackett, C.J., and Doyle and Danilson, JJ. Opinion by Danilson, J. Concurrence in part and dissent in part by Sackett, C.J. (13 pages $6.50) Lawchek, Ltd. appeals from the district court's order with regard to its challenge to levy by Qwest Business & Government Services, in which the district court denied the challenge to Qwest's levy or garnishment upon Lawchek's attorney's trust account. Lawchek argues the district court erred in (1) failing to find there was a $500,000 settlement agreement between the parties, and (2) determining the levy upon Lawchek's attorney's trust account was upon unrestricted funds. OPINION HOLDS: I. We agree with the district court's determination that no settlement agreement existed in this case between Qwest and Lawchek. II. We further agree that Lawchek was free to withdraw its funds in Attorney Thorson's trust account at any time and use them for any purpose, and that the funds were unrestricted and subject to levy. We affirm. PARTIAL DISSENT ASSERTS: I agree with the majority and the district court that what Qwest's attorney did here was distasteful. I also agree with the majority that what happened here does not follow the custom of the bar in this state of honoring oral agreements. That said, I cannot agree with the majority's decision that there was no error. Qwest's attorney levied on funds in the attorney's trust account that were deposited as part of a settlement. Qwest's attorney did not notify Lawchek's attorney that the settlement was being called off. The funds were restricted from release until the settlement was finalized. The garnishment is subordinate to that purpose. No. 09-1068. [9-1066] MAYES v. HAGEN Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire, Judge. AFFIRMED. Heard by Sackett, C.J., and Doyle and Danilson, JJ. Opinion by Danilson, J. (12 pages $6.00) Heather Mayes appeals the issues of physical care and child support in Gabriel Hagen's action for modification of the parties' paternity decree. OPINION HOLDS: I. On our de novo review of the record, we conclude the breakdown in communication was so complete that a substantial change of circumstances was proven. The district court aptly noted all the significant and important facts in this case in reaching its conclusion that Gabriel Hagen is the superior caretaker, and on this record, we see no reason to conclude otherwise. II. We find no abuse of discretion in the court's denial of a retroactive commencement date for an increase in child support. III. We decline to award attorney fees for this appeal. We affirm. No. 09-1176. [9-1067] STATE v. IOWA DISTRICT COURT Appeal from the Iowa District Court for Fayette County, John Bauercamper, Judge. WRIT SUSTAINED, ORDER ANNULLED, AND REMANDED. Heard by Sackett, C.J., and Doyle and Danilson, JJ. Opinion by Danilson, J. (5 pages $2.50) The State transferred jurisdiction of this case to a magistrate for trial where the offense at issue is a serious misdemeanor. The State appeals the district court's order, contending the district court acted illegally in transferring jurisdiction of Sheila Scovel's case to a magistrate, where Iowa Code section 602.6405(1) limits magistrates' criminal jurisdiction to simple misdemeanors, and where section 299.6 specifically classifies Scovel's crime as a "serious misdemeanor." OPINION HOLDS: We conclude there is no ambiguity in the statutory classification of a second truancy offense under section 299.6. We agree with the State that the district court erred in transferring this case to a magistrate. A magistrate's jurisdiction in respect to criminal trials is limited to simple misdemeanors. The district court erred in ordering otherwise. We sustain the writ of certiorari, annul the order of the district court, and remand to the district court for further proceedings. No. 09-0990. [0-016] STATE v. LEGGIO Appeal from the Iowa District Court for Pottawattamie County, James S. Heckerman, Judge. AFFIRMED IN PART, SENTENCE VACATED, AND REMANDED FOR RESENTENCING. Considered by Sackett, C.J., and Doyle and Danilson, JJ. Opinion by Danilson, J. (11 pages $5.50) Terry Leggio appeals from judgment and sentences entered upon his convictions of five counts of attempted murder, contending there is insufficient evidence to sustain the convictions. He also asserts he was denied his right of allocution at sentencing. OPINION HOLDS: Based upon the evidence presented, the jury could find that Leggio committed acts by which he expected to set in motion a force or chain of events which could have caused or resulted in the death of each of his intended victims and, consequently, substantial evidence supports the convictions of attempted murder. The State concedes that Leggio was not provided the opportunity of allocution. We must therefore vacate his sentence and remand for resentencing. No. 08-1837. [0-054] STATE v. GOSNELL Appeal from the Iowa District Court for Howard County, John Bauercamper, Judge. AFFIRMED. Considered by Sackett, C.J., and Doyle and Danilson, JJ. Opinion by Danilson, J. (4 pages $2.00) Edwin Douglas Gosnell III appeals the sentences imposed following his guilty plea to two charges of sexual abuse in the third degree in violation of Iowa Code section 709.4(2)(c)(4) (2007). He argues the sentencing court abused its discretion by failing to state adequate reasons for imposing his sentences. OPINION HOLDS: Upon our review, we find the district court's decision was within statutory limits, and was neither unreasonable nor based on insufficient or untenable grounds. The court's sentencing decisions were well within its discretion and we will not disturb them on appeal. No. 09-1062. [0-067] PATINO v. IOWA DEP'T OF TRANSPORTATION Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge. AFFIRMED. Considered by Sackett, C.J., and Doyle and Danilson, JJ. Opinion by Danilson, J. (3 pages $1.50) Carlos Vargas Patino appeals the district court's dismissal of his petition for judicial review for lack of subject matter jurisdiction. OPINION HOLDS: Upon our review, we find Patino's petition was not filed within thirty days after the agency's final decision, as required by Iowa Code section 17A.19(3) (2007). Because the petition was untimely, the district court was without jurisdiction to review the case. We affirm.