Iowa Court of Appeals

There were a number of new Court of Appeals opinions released today. I looked through the summaries and found so many that I thought might be interesting. I ended up needing to shave my list a little bit so I could get some work done.

There is one that touches on judicial recusal in an attorney malpractice case. Not really much there, though.

An unfortunate case concerning a mother’s need for her child to be sick.

Another child custody case that has a very interesting outcome. You have to read the dissent to find it that interesting, though.

A case about a gaming permit for the hallowed (see my last post) National Cattle Congress. Actually, it’s for the now defunct dog track in Waterloo, which is run by the Cattle Congress Board. This opinion, though, is now mysteriously missing from the page of recent decisions, though it still shows up in the summaries.

And a criminal case that I find remarkable only because I think I went to high school with the defendant.

Finally, my condolences to my office-mate Rockne Cole for the disposition of his post-conviction relief appeal.

Happy reading.

Modification

I’ve been working on an appeal brief all day, so I have modification of dissolution decrees on the brain. In modification actions, there are different standards for modifying a custody determination and modifying a vistitation schedule. With visitation, all that is required is  change in circumstances, but to modify a custody detrmination one has to show a substantial change in circumstances.

Our appeal argument is that the stipulation in our case set out a schedule of visitation for Petitioner while giving primary physical care to Respondent (our client). The District Court didn’t go for that argument and required our client to show a substantial change in circumstances. We have some case law, so we’ll see how it works out.

By the way, you can now find Johnson County schedules on this site.

The Supremes

The Iowa Supreme Court issued two rulings today. Both were criminal appeals and both were affirmed. Both appellants claimed ineffective assistance of counsel and in both cases, the Court determined that there was a sufficient record made below to dispose of the claims, rather than preserve them for post-conviction relief. In one of the cases, State v. Boggs, No. 42/05-1625, Justice Cady, as he often does, provided a thorough history of Double Jeopardy before deciding that Mr. Boggs was not put in jeopardy twice.

Pursuant to an agreement with prosecutors, Boggs was convicted after trial on the minutes of Possession of Methamphetamine (less than 10 grams) with intent to deliver, rather than the original and greater charge of Possession of Methamphetamine (more than 5 grams) with intent to deliver. While the appeal (contemplated by the agreement, hence the trial on the minutes) was pending, the Court remanded for new trial after determining that the trial court failed to make a record concerning Boggs’ request to represent himself.

On remand, prosecutors decided to go back to the original greater charge and Boggs was convicted by a jury. The Court determined that, because Boggs wasn’t “tried” on the greater charge the first time, his conviction on the lesser charge did not constitute a conviction of a lesser included offense, so it wasn’t a violation of Iowa’s Double Jeopardy statute or the Double Jeopardy provisions of the Iowa or US Constitutions.

All of my recaps will be pretty simple, so I might skip some details to get to the big points. I don’t get paid for this, you know.

New Court of Appeals Opinions

A quick review of the summaries of the opinions posted today by the Court of Appeals shows that they affirm a lot of cases. But, there are a few exceptions. The one that stands out most to me is Happe v. City of Urbandale, No. 7-577/06-0631. In Happe, the Court reversed a ruling by the Polk County District Court affirming the amount of road reconstruction costs assessed by the City to the Happe’s property. The original assessment was $37,092.09.

The Court of Appeals determined that amount to be excessive and knocked the assessment down to $6,118.51. Quite a decrease. The reasoning stems from case law stating that property owners are not required to pay for the gneral benefits of road reconstruction, only special benefits. The Court decided that there was sufficient evidence from the Happe’s that they received little, if any special benefit from the reconstruction. It probably didn’t hurt that a similar property was only assessed $6,118.51 to begin with.

The Supremes will be posting new opinions tomorrow.

Foreclosures

This is not an original question, but I can’t understand is why lenders are so willing to foreclose on property rather than do workouts with people. Especially with the number of foreclosures on the rise. The people I’ve dealt with get very little, if anything, out of lenders when hard times hit. I don’t know the financial specifics, but it seems like it would be cheaper to make some adjustments in order to keep the loans going than to send all of them into foreclosure. I guess that’s why the bankers make the big bucks and I don’t.

Granted, a lot of people overspent in the last few years and are now realizing it. Maybe this is just a market correction. They’ll do all of these foreclosures and then the real estate market will stabilize. But who’s going to buy all of these properties when the banks buy at the sheriff’s sales and then put them on the market?

Claims in Probate

I ran into an interesting issue today. A surviving spouse has filed claims in a probate estate that I’m working on. The claims ask the estate to pay off the mortgage and two lines of credit that are left after the husband died. The couple were jointly and severally liable for the debts, and it makes sense for the estate to pony up for at least part of the debts, but I’m not sure about the whole. I’ve been provided with some case law on hte subject, but I haven’t had a chance to look through it yet. I may update my thoughts after I’ve done that.