UPDATES & ANALYSIS

4.14

Iowa Supreme Court to hear arguments in seven appeals Wednesday and Thursday

by Rox Laird | April 14, 2021

The Iowa Supreme Court will hear arguments in seven cases April 14 and 15. Three other cases will be submitted to the Court without argument. Following are brief summaries of the April cases. Go to On Brief’s Cases in the Pipeline page to read briefs filed in these cases.

Andrew v. Hamilton County Public Hospital

Scheduled for argument April 14, 9 a.m.

Issues: Is a county hospital protected from a defamation claim under state and federal law? And did a District Court correctly rule on plaintiff’s wage payment claim?

[Disclosure: Nyemaster Goode attorneys Frances Haas and David Bower represent defendant‐appellant Hamilton County Public Hospital in this appeal.]

The Hamilton County Public Hospital appeals a Hamilton County District Court ruling denying its motion to dismiss on summary judgment plaintiff-appellee Mark Andrew’s defamation claims against the hospital for its confidential reports made to a state medical board and to a federal medical database regarding its patient-safety concerns about Andrew, which are protected from liability by state and federal law. The hospital also appeals the District Court’s holding that compensation Andrew may have earned, had the Hospital terminated the Agreement “without cause,” constitutes wages under the Iowa Wage Payment Collection Act.

Liquor Bike v. Polk County District Court

Scheduled for oral argument April 14, 9 a.m.

Issue: Should a lawyer and his firm be disqualified for an ethical conflict?

Liquor Bike LLC appeals a Polk County District Court order disqualifying Liquor Bike’s attorney Billy Mallory and his firm of Brick Gentry from representation of Liquor Bike in a real estate boundary dispute with the owner of a neighboring property. The District Court also prohibited Mallory and Brick Gentry from discussing the dispute with Liquor Bike or its new counsel. The plaintiff in that action argued in its motion to disqualify that Mallory and Brick Gentry were conflicted because another lawyer in the firm represents the plaintiff in an unrelated legal matter. Liquor Bike argues in response that in both matters Brick Gentry represents separate real estate entities owned by Dr. Eugene Cherny, not Cherny himself, so there is no conflict. In the alternative, should the Supreme Court affirm the District Court, Liquor Bike urges the Court to strike the part of the District Court’s order prohibiting the firm’s attorneys from discussing the dispute with Liquor Bike or its replacement counsel, thus allowing Mallory to consult with the new counsel on the underlying litigation.

Barkalow v. Clark

Scheduled for oral argument April 14, 9 a.m.

Issues: Did a District Court err in dissolving a viable company, and in transforming capital into debt? On a cross-appeal, should dissolution of the company have been based on defendants’ oppression?

Bryan and Jeffrey Clark appeal a Johnson County District Court ruling dissolving a company owned jointly by the parties on the basis that it was not practicable to carry on the company’s business due to “acrimony” between Barkalow and the Clarks. The Clarks raise two issues on appeal: First, that the District Court erred in ordering dissolution of company, a viable and profitable enterprise, where the trial court’s ruling settled the members’ disputes; and, second, that the District Court “exceeded its statutory and equitable authority by transforming capital into debt and by setting ownership shares in contravention to the LLC documents.” The plaintiff-appellees Tracy Barkalow, et al., cross-appeal, arguing the District Court erred by not ordering dissolution of the company based on the defendants’ oppression and by not awarding Barkalow damages on his breach of fiduciary claim.

State v. Jordan

Will be submitted to the Court without oral argument April 14.

Issue: Was a defendant’s appeal foreclosed by recent legislation barring direct appeals on claims of ineffective assistance of counsel?

Travis James Jordan seeks further review of a Nov. 4, 2020, Iowa Court of Appeals ruling dismissing Jordan’s appeal of his sentence by the Webster County District Court following his conviction of third-degree burglary. Jordan argued on appeal that his defense attorney provided ineffective assistance by failing to object at sentencing to the prosecutor’s alleged violation of a plea agreement. In dismissing Jordan’s appeal, the Court of Appeals held that it lacked subject matter jurisdiction to hear the appeal because the District Court’s judgment and sentence were entered after legislation took effect barring direct appeals on claims of ineffective assistance of counsel. Jordan argues that his appeal should be heard on his assertion that the State’s violation of the plea agreement violated his constitutional right to due process.

EMC Insurance Group Inc. v. Shepard

Scheduled for oral argument April 14, 1:30 p.m.

Issue: Did a shareholder properly exercise his right to challenge the price paid to minority shareholders as part of a corporate merger?

[Disclosure: Nyemaster Goode attorneys Michael Thrall, Mark Dickinson, and Lynn Herndon represent plaintiff-appellee EMC Insurance Group Inc.]

Gregory Shepard appeals a Polk County District Court ruling granting summary judgment to plaintiff EMC Insurance Group Inc. (EMCI) on its petition for a declaratory order that Shepard had lost his right to challenge the share price EMC set for buying out minority shareholders. Shepard raises three issues in his appeal: 1) Was the list of record shareholders used by EMCI to send proxy voting forms to those record shareholders in connection with the proposed merger properly constituted under Iowa law? 2) Did EMCI waive its right to argue that Shepard failed to comply with the Iowa appraisal statute? 3) Can EMCI claim that Shepard failed to obtain record shareholder consent to an appraisal by canceling Shepard’s EMCI shares? An amicus curiae (friend of the court) brief was filed with the Court in this case by the Depository Trust Co., not in support of either party on the merits but to clarify the law on record ownership of securities.

Association of Business and Industry v. City of Waterloo

Scheduled for oral argument April 14, 1:30 p.m.

Issue: Does the City of Waterloo’s ordinance barring employers from asking job applicants about their criminal history exceed state and federal law?

The Iowa Association of Business and Industry (ABI) appeals a Black Hawk County District Court ruling dismissing on summary judgment ABI’s claim that state and federal law preempt a Waterloo city ordinance that prohibits employers in the city from asking about criminal history on a job application, prohibits employers from making any inquiry into an applicant’s criminal history until a conditional offer of employment has been made, and prohibits employers from making adverse hiring decisions based solely on certain criminal records. ABI argues that Waterloo’s ordinance is invalid under Iowa Code Section 364.3(12), which states that a city may not adopt an ordinance that provides for “any terms or conditions of employment” that exceed or conflict with state or federal law relating to hiring practices. ABI states that neither state nor federal law contain prohibitions such as Waterloo’s.

Amicus curiae (friend of the court) briefs in support of appellee City of Waterloo were filed with the Court by the American Civil Liberties Union of Iowa and the Iowa-Nebraska NAACP.

Holmes v. Pomeroy

Will be submitted to the Court April 14 without oral argument.

Issue: Should evidence of defendant’s cell phone use both before and after a car accident be allowed to show habit?

Matthew Holmes seeks further review of a Sept. 23, 2020, Iowa Court of Appeals ruling affirming the Warren County District Court’s denial of Holmes’ motion for a new trial following a jury verdict for the defendant Miranda Pomeroy, who Holmes claimed was at fault for a collision between her car and his bicycle. Among the issues raised in his application for further review, Holmes argues the trial court should have admitted evidence of Pomeroy’s cell phone use while driving — both before and after the collision — to establish Pomeroy’s habit of cell phone use while driving. The trial court excluded evidence of Pomeroy’s post-collision cell phone use based on the defendant’s objection that the post-collision evidence was not relevant to establish an inference of habit or routine. Holmes argues that post-collision conduct is equally relevant because it is evidence of habit and that a reasonable juror may conclude that the defendant was operating her cell phone at the time of the collision.

Williams v. Beckner, Bullock

Will be submitted to the Court without oral argument April 14.

Issue: Did a University of Iowa police officer’s supervisors violate Iowa’s veterans’ preference law in terminating his employment?

Jeffrey Williams appeals a Johnson County District Court order that annulled Williams’ writ of certiorari and dismissed his claim that his University of Iowa Department of Public Safety supervisors who fired him from his job as a campus police officer violated Iowa Code Section 35C.6, which gives military veterans in public positions job protections. Williams argues the District Court misinterpreted and misapplied Section 35C.6’s requirements that veterans receive “due notice” with “stated charges” and a veterans’ preference hearing.

In the Matter of the Guardianship and Conservatorship of Marvin M. Jorgensen

Scheduled for oral argument April 15, 9 a.m.

Issue: Did the District Court exceed its authority in modifying farm leases?

[Disclosure: Nyemaster Goode attorneys Jay Syverson, Leslie Behaunek, and Keith Duffy represent the primary beneficiary for Marvin M. Jorgensen’s Estate, The Mayo Clinic, and sought to intervene or in the alternative file an amicus curiae brief in this appeal following Marvin’s passing.]

Mark Jorgensen, Michael Jorgensen, and the guardian ad litem for their now-deceased father (with the guardian ad litem representing the Estate of the decedent on appeal) seek further review of a Nov. 30, 2020, Iowa Court of Appeals ruling affirming in part and reversing in part an Audubon District Court decision regarding Family Farm Leases entered into by a conservator on behalf of Marvin M. Jorgensen. Roxann Wheatley—one of Marvin’s children—and family members Rick and Dallas Wheatley appealed a District Court decision approving Family Farm Leases. Mark, Michael, and the GAL/Estate in their petitions for further review urge the Supreme Court to clarify a conservator’s statutory obligations and the District Court’s authority to approve below-market-rate leases, among other issues raised in this case.

Xenia Water District v. City of Johnston

Scheduled for oral argument April 15, 9 a.m.

Issues: The U.S. District Court for the Southern District of Iowa, which is hearing a case involving a dispute between Xenia Water District and the City of Johnston regarding two water service areas, mostly within two miles of Johnston’s municipal boundaries, certified three questions to the Iowa Supreme Court on Iowa state law:

1.Whether an Iowa Code Section 357A.2 rural water district, before amendments to Section 357A.2(4) in 2014, had a legal right to provide water service to portions of an area described in its county board of supervisors resolution (see Iowa Code Section 357A.2(1)), when those portions were also within two miles of the limits of a municipality, (see Section 357A.2(3)), and when the municipality had not waived its rights to provide water service to the area (see § 357A.2(4)).

2. Whether Iowa Code Section 357A.2(4), as amended by the Iowa legislature in 2014: (a) exempts a rural water district from following notice-of-intent procedures when the area the district seeks to serve is within the district’s boundaries as designated in the county board of supervisors’ resolution creating the water district, and/or (b) otherwise provides the rural water district a legal right to serve such areas when the municipality has not waived its rights. If so, whether the 2014 amendment to § 357A.2(4) had retroactive effect.

3. Whether an Iowa Code Section 504A nonprofit corporation created in 1977 had a legal right to provide water service anywhere within the state of Iowa. If so, whether a Section 504A nonprofit corporation that reincorporated (including through articles of dissolution for the Section 504A entity) as a Section 357A.2 rural water district in 1990 retained the legal right to provide water service anywhere within the state of Iowa (including outside its boundaries as specified in its county board of supervisors resolution and within two miles of a municipality), prior to and following the 1991 amendment to Section 357A.2.

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