Grefe Sidney http://www.grefesidney.com Just another WordPress site Fri, 15 Dec 2017 20:13:13 +0000 en-US hourly 1 IOWA COURT OF APPEALS OVERTURNS SUMMARY JUDGEMENT RULING INVOLVING NEGLIGENCE CLAIM http://www.grefesidney.com/news/2017/12/iowa-court-appeals-overturns-summary-judgement-ruling-involving-negligence-claim/ Fri, 15 Dec 2017 18:21:53 +0000 http://www.grefesidney.com/?p=2099 In February 2014, plaintiff and his wife visited an Iowa retail store. Upon entering the store, Plaintiff noticed the rug in the entryway “had large wrinkles maybe 2 to 3 inches tall.” Notwithstanding the condition of the rug, plaintiff attempted to walk across it. As he was doing so, he tripped over the wrinkled rug, […]

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In February 2014, plaintiff and his wife visited an Iowa retail store. Upon entering the store, Plaintiff noticed the rug in the entryway “had large wrinkles maybe 2 to 3 inches tall.” Notwithstanding the condition of the rug, plaintiff attempted to walk across it. As he was doing so, he tripped over the wrinkled rug, allegedly resulting in injury. Plaintiff filed a petition alleging negligence on the part of the retail store. Defendant filed for summary judgment, arguing that, because plaintiff had knowledge of the wrinkled rug/dangerous condition, defendant had no duty to plaintiff and was not liable for his injuries. The district court agreed and granted summary judgment in favor of defendant.

 

Plaintiff appealed the district court’s finding, arguing that plaintiff’s knowledge of the hazardous condition did not in and of itself extinguish defendant’s duty to plaintiff. The appellate court agreed, holding that a danger that is “known and obvious” goes to the question of whether plaintiff was contributorily negligence, and “is not determinative of the landowner’s duty.” As a result, the district court’s grant of summary judgment was reversed, and the case was remanded for further proceedings.

 

Eurich v. Bass Pro Outdoor Word, L.L.C., et al., No. 17-0302 (Iowa Ct. App. November 8, 2017)

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MITCHELL AND LINDEBAK SUCCESSFULLY DEFEND CLIENT BEFORE SUPREME COURT http://www.grefesidney.com/news/2017/12/mitchell-lindebak-successfully-defend-client-supreme-court/ Fri, 15 Dec 2017 18:20:30 +0000 http://www.grefesidney.com/?p=2097 Clark Mitchell and Aaron Lindebak obtained a defense verdict in favor of the president of a townhome owners association in an appeal to the Iowa Supreme Court. The appellants, a former townhome association president and his wife, appealed the district court’s granting of summary judgment on his defamation claim and his malicious prosecution claim. Mitchell […]

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Clark Mitchell and Aaron Lindebak obtained a defense verdict in favor of the president of a townhome owners association in an appeal to the Iowa Supreme Court. The appellants, a former townhome association president and his wife, appealed the district court’s granting of summary judgment on his defamation claim and his malicious prosecution claim. Mitchell and Lindebak represented one of three appellees in the suit.  The appellant alleged that the appellees made defamatory statements to the police which caused the appellant to be charged with the crime of theft. The appellants argued the discovery rule, which extends the statute of limitations, should apply to defamation claims. The appellants argued our client instigated or procured his criminal prosecution. The Supreme Court affirmed the district court’s rulings. The Supreme Court did not address the statute limitations question finding the defamation claim could not be retried as the jury was presented all the same evidence on his wife’s claim and the jury found no defamation occurred. On the malicious prosecution claim, the Supreme Court found there was no genuine issue of material that our client instigated or procured the criminal prosecution.

Linn v. Montgomery, No. 16-1136 (Iowa 2017)

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IOWA COURT OF APPEALS UPHOLDS COMMISSION’S INDUSTRIAL DISABILITY AWARD INVOLVING ACCOMMODATED EMPLOYMENT http://www.grefesidney.com/news/2017/12/iowa-court-appeals-upholds-commissions-industrial-disability-award-involving-accommodated-employment/ Fri, 15 Dec 2017 17:45:12 +0000 http://www.grefesidney.com/?p=2089 In April 2009, claimant injured her neck and back during the course of her employment as a pharmacy technician. In addition, it was determined claimant’s injury resulted in anxiety and depression issues. After reaching maximum medical improvement for her work injuries, claimant was able to return to her employment as a pharmacy technician under permanent […]

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In April 2009, claimant injured her neck and back during the course of her employment as a pharmacy technician. In addition, it was determined claimant’s injury resulted in anxiety and depression issues. After reaching maximum medical improvement for her work injuries, claimant was able to return to her employment as a pharmacy technician under permanent restrictions of working no more than 30 hours per week. Prior to the accident, claimant was a full-time employee, routinely working 40 hours per week. Claimant argued that she was permanently and totally disabled based on the assertion she would not have been able to return to work but for accommodations provided by defendant. The Commission found claimant had suffered a 70% loss of future earning capacity as a result of the injury.

Claimant appealed the Commission’s finding, arguing the Deputy and Commissioner had improperly made a “downward adjustment” based on defendant’s accommodation of claimant’s permanent work restrictions. The Iowa Court of Appeals agreed with claimant’s assertion that “an injured worker’s performance of accommodated work, in and of itself, ma[y] not be used to reduce a worker’s industrial disability rating.” However, the court disagreed with claimant’s assertion that the Commission misinterpreted the law. In reaching this conclusion, the Court noted the Commission properly based the award on the factual conclusions that: (1) claimant was a valuable member of the pharmacy team; (2) claimant had developed unique skills; and (3) claimant would probably find employment, even with her restrictions, should she leave Hy-Vee. Wherefore, the commission’s industrial disability finding was affirmed.

Norton v. Hy-Vee, No. 16-1299 (Iowa Ct. App. Nov 8, 2017).

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ZENOR SUCCEEDS AT IOWA COURT OF APPEALS http://www.grefesidney.com/news/2017/12/zenor-succeeds-iowa-court-appeals/ Fri, 15 Dec 2017 15:00:26 +0000 http://www.grefesidney.com/?p=2091 An Iowa high school male was charged with a felony sex offense after an incident with a female student.  After discovery, the State and defendant entered a plea agreement to the misdemeanor charge of Assault Causing Bodily/Mental Injury. At sentencing, the associate district court granted the defendant a deferred judgment. However, the court imposed sex […]

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An Iowa high school male was charged with a felony sex offense after an incident with a female student.  After discovery, the State and defendant entered a plea agreement to the misdemeanor charge of Assault Causing Bodily/Mental Injury. At sentencing, the associate district court granted the defendant a deferred judgment. However, the court imposed sex offender treatment as a condition of probation.

Zenor sought a discretionary appeal because guilty plea contained no admission or factual finding of sexual misconduct. Moreover, Zenor urged that imposing the condition of sex offender treatment should be vacated based it was unreasonable, did not fit the crime or the individual, and exceeded the probationary goals outlined under Iowa law. The Iowa Court of Appeals agreed, holding there was “not a sufficient nexus between the crime and requirement defendant complete sex offender treatment as part of his probation. . . ” As a result, the appellate court vacated defendant’s sentence and remanded for resentencing.

State of Iowa v. Hauck, No. 16-0858

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Can We Share An Attorney When Divorcing? http://www.grefesidney.com/news/2017/11/can-we-share-an-attorney-when-divorcing/ Tue, 28 Nov 2017 20:13:48 +0000 http://grefesidney.hmdev/?p=1692 By Rob Evans Do you know why divorces are so expensive? Because they’re worth it. All joking aside, getting divorced can be expensive, especially if both parties hire attorneys. The high cost of divorce has led spouses to look for ways to reduce legal fees. When a divorce is amicable and the parties have worked […]

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By Rob Evans

Do you know why divorces are so expensive? Because they’re worth it.

All joking aside, getting divorced can be expensive, especially if both parties hire attorneys. The high cost of divorce has led spouses to look for ways to reduce legal fees. When a divorce is amicable and the parties have worked out most of the details of their case, they often ask if they can use the same divorce attorney to save money.  Unfortunately, my answer is always the same: “for legal and ethical reasons, I cannot represent both spouses in a divorce.”

The Iowa Rules of Professional Conduct prohibit an attorney from representing both parties in a divorce. Iowa attorneys are required to zealously represent the best interests of their client, and when parties are divorcing, they always have competing interests. It is simply impossible for an attorney to represent the best interest of both parties in the same action – what benefits one party disadvantages the other party.

Don’t fret, there are cost-saving options.  For example, we offer flat fee arrangements for spouses who agree on all issues and just need to make sure the documents filed with the court capture the terms of the agreement and will be approved by the judge.

Or, one spouse can hire an attorney to represent his or her interests, while the other spouse proceeds pro se. “Pro se” simply means that party is representing himself or herself. If the pro se party wants an attorney to look over any documents, they can hire that attorney specifically for that purpose, rather than to represent them in the entire action. This is called an unbundled package.  Ultimately, this option saves money when the parties have already agreed on all or most terms.

Another cost-saving option is for both parties to proceed pro se. For those of you who choose this route, I strongly caution you to consider having your final agreement reviewed by an attorney. Divorce is a complicated process with lasting implications. Hopefully you will only do it once, and you want to make sure you do it right.

A final cost-saving option is mediation. In Iowa, most mediators are licensed attorneys who work unbiasedly with the parties to help them reach a resolution. Mediators cannot provide legal advice, but they can help the parties work through the legal issues so they can come to a final agreement. Since neither party is represented by an attorney, it would be wise to hire an attorney to review the final agreement to make sure your interests are protected.  All family law attorneys are trained mediators.

Simply put, there are options available that will save the parties money throughout their divorce.   We are happy to discuss whether any of these options can be customized for your situation. Call us at 245-4300.

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Court of Appeals Disallows Jury Award of Punitive Damages in Contract Dispute http://www.grefesidney.com/news/2017/11/court-appeals-disallows-jury-award-punitive-damages-contract-dispute/ Tue, 28 Nov 2017 18:02:49 +0000 http://www.grefesidney.com/?p=2075 Hansen Company is a general contractor that was hired to renovate the former Younkers Building in downtown Des Moines. In the spring of 2013, RedNet Environmental Services contracted with the Hansen Company to perform asbestos abatement, lead abatement, PCB/Mercury disposal, and demolition of the aforementioned building. Before RedNet was allowed to perform any of the […]

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Hansen Company is a general contractor that was hired to renovate the former Younkers Building in downtown Des Moines. In the spring of 2013, RedNet Environmental Services contracted with the Hansen Company to perform asbestos abatement, lead abatement, PCB/Mercury disposal, and demolition of the aforementioned building. Before RedNet was allowed to perform any of the contracted work on the project, the Hansen Company terminated the contract. RedNet filed suit against Hansen claiming breach of contract and punitive damages. RedNet’s claim for punitive damages was based on the facts Hansen “require[ed] RedNet to expend time and monies to continue its preparations to be ready for the start date that was continually extended; inform[ed] RedNet to obtain a bond although not required by the contract terms or of other subcontractors; arrang[ed] for another subcontractor to perform the work while stringing RedNet along; and terminat[ed] the contract at the very last moment.” After hearing the evidence, the jury determined Hansen breached the contract and committed willful and wanton conduct and awarded a verdict for compensatory damages in the amount of $1,381,387 and punitive damages of $250,000. Hansen appealed the verdict contending in part that the claim for punitive damages should have been dismissed.
Ultimately, the Court held that a “wrongful or intentional breach is not enough to afford punitive damages.” Rather, an award of punitive damages for breach of contract is only permitted when the breach “(1) constitutes an intentional tort, and (2) is committed maliciously, in a manner that meets the standards of Iowa Code section 668A.1 (1993).” Citing Magnusson Agency v. Pub. Entity Nat’l Co-Midwest, 560 N.W.2d 20, 29 (Iowa 1997). Therefore, although the Court noted Hansen’s conduct was “clearly willful and intentional” and “indicative of actual spite and hatred,” the Court reversed the jury’s award of punitive damages due to the fact RedNet failed to present evidence of an intentional tort.
THE HANSEN COMPANY, INC., Plaintiff-Appellant, vs. REDNET ENVIRONMENTAL SERVICES, L.L.C., LYNN KNUDSEN, and ROBERT KNUDSEN, Defendants-Appellees. REDNET ENVIRONMENTAL SERVICES, L.L.C., LYNN KNUDSEN, and ROBERT KNUDSEN, Counterclaim Plaintiffs, vs. THE HANSEN COMPANY, INC., Counterclaim Defendant, No. 16-2230 (Iowa App. Oct. 11, 2017).

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Thomas Wins Defense Verdict http://www.grefesidney.com/news/2017/11/thomas-wins-defense-verdict/ Tue, 28 Nov 2017 07:15:59 +0000 http://www.grefesidney.com/?p=2084 During the week of September 24, 2017, Mark Thomas obtained a defense verdict in favor of Innovative Ag Services, Co. amidst allegations they failed to apply the herbicide Ignite according to its label to a portion of Plaintiff Joel Kurtenbach’s corn fields. Plaintiff alleged Innovative Ag Services, Co.’s off-label use resulted in financial damage caused […]

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During the week of September 24, 2017, Mark Thomas obtained a defense verdict in favor of Innovative Ag Services, Co. amidst allegations they failed to apply the herbicide Ignite according to its label to a portion of Plaintiff Joel Kurtenbach’s corn fields. Plaintiff alleged Innovative Ag Services, Co.’s off-label use resulted in financial damage caused by a reduced crop yield. Plaintiff’s claim was based on three alternate theories: (1) negligence; (2) breach of contract; and (3) breach of implied warranty of purpose in application of the herbicide. Through cross-examination and the presentation of evidence contradicting plaintiff’s assertions, defense was able to rebut plaintiff’s claims. On October 3, 2017, the jury awarded a defense verdict in favor of Innovative Ag Services, Co., rejecting all three of plaintiff’s liability theories.

Joel Kurtenbach, d/b/a Little Creek Farm v. Innovative Ag Services, Co. Case No. LACV005655

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Court of Appeals Affirms Rare Finding Claimant Did Not Give Timely Notice of Her Work Injury http://www.grefesidney.com/news/2017/11/court-appeals-affirms-rare-finding-claimant-not-give-timely-notice-work-injury/ Tue, 28 Nov 2017 07:15:55 +0000 http://www.grefesidney.com/?p=2082 Traditionally, it is notoriously difficult for the employer to succeed before the Commission on a notice defense. However, on October 11, 2017, the court issued a decision affirming a finding that claimant did not give notice of her injury to her employer within 90 days. The case involved a cumulative back injury that manifested itself […]

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Traditionally, it is notoriously difficult for the employer to succeed before the Commission on a notice defense. However, on October 11, 2017, the court issued a decision affirming a finding that claimant did not give notice of her injury to her employer within 90 days. The case involved a cumulative back injury that manifested itself on October 10, 2011. Claimant gave formal notice to her employer that her injury was work related on August 13, 2012, well after the 90 day window. Notwithstanding her failure to give formal notice within 90 days, claimant argued that the employer had “actual knowledge” well before claimant officially reported the injury. In support of her argument, claimant relied on evidence that the employer received a “fitness for duty” authorization form from her treating doctor dated October 27, 2011 stating “[claimant] may have to leave work early if lower back pain gets aggravated.” However, because the form did not specifically state claimant’s condition was work related, the court affirmed the Commission’s ruling that the employer did not have actual knowledge of claimant’s injury. Therefore, pursuant to Iowa Code § 85.23, claimant was barred from recovering benefits.

Callahan v. Horseshoe Casino, No. 16-2230 (Iowa App. Oct. 11, 2017).

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Mitchell Successfully Defends Local Repair Shop    http://www.grefesidney.com/news/2017/11/mitchell-successfully-defends-local-repair-shop/ Tue, 28 Nov 2017 07:15:54 +0000 http://www.grefesidney.com/?p=2086 On October 25, 2017, Clark Mitchell obtained a defense verdict for his client.  Mitchell represented the defendant (a vehicle repair shop) in the lawsuit.  The plaintiff was a customer of the defendant repair shop.  The Polk County lawsuit arose out of a break-in of the plaintiff’s vehicle while in the possession of the defendant.  The […]

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Clark Mitchell

On October 25, 2017, Clark Mitchell obtained a defense verdict for his client.  Mitchell represented the defendant (a vehicle repair shop) in the lawsuit.  The plaintiff was a customer of the defendant repair shop.  The Polk County lawsuit arose out of a break-in of the plaintiff’s vehicle while in the possession of the defendant.  The plaintiff’s vehicle was vandalized, and property was stolen.  The trial involved the legal issues of negligence, and bailment for hire.  Additionally, the case involved proof of damages issues related to repair costs and the value of the property before the incident.  After a three-day jury trial, the Polk County jury returned a defense verdict finding the defendant was not negligent.

Polk County Law No. LACL135934.

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Martino Wins Defense Verdict http://www.grefesidney.com/news/2017/11/martino-wins-defense-verdict/ Tue, 28 Nov 2017 07:15:40 +0000 http://www.grefesidney.com/?p=2080 During the week of January 31, 2017, Laura Martino successfully defended Ford Motor Company against allegations Ford violated Iowa’s “Lemon” law provisions. At trial, Plaintiff sought damages in the amount he paid for a recently purchased Ford F-150 truck (plus costs and attorney fees) on the grounds that the vehicle sold was a “Lemon.” Specifically, […]

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During the week of January 31, 2017, Laura Martino successfully defended Ford Motor Company against allegations Ford violated Iowa’s “Lemon” law provisions. At trial, Plaintiff sought damages in the amount he paid for a recently purchased Ford F-150 truck (plus costs and attorney fees) on the grounds that the vehicle sold was a “Lemon.” Specifically, Plaintiff claimed Defendant failed to conform the vehicle to the written warranty issued at the time of purchase due to the presence of vehicle “vibration” and a “popping” noise. Through the testimony of fact witnesses and the presentation of expert testimony, the defense was able to rebut the allegations by showing the “vibration” and “popping” noises were not a result of a deviation from the written warranty but instead conditions to be expected based upon the plaintiff’s driving habits, including overloading the vehicle and continuous use of 4×4 mode. On October 13, 2017, the Court filed a ruling rejecting Plaintiff’s claims and awarded a defense verdict.

Brian Oedekoven v. Ford Motor Company, Case No. CVCV170280

 

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