text:
    UNIVERSITY OF IOWA HOSPITALS AND CLINICS and State of Iowa, Appellees, v. Jack Edward WATERS, Appellant.
    No. 02-1017.
    Supreme Court of Iowa.
    Jan. 22, 2004.

      Paul J. McAndrew, Jr. of Paul J. McAn-drew Law Firm, Coralville, for appellant.
    Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney General, for appellees.
   STREIT, Justice.

A custodian appeals from a district court judgment setting aside his workers’ compensation award. The district court held the commissioner impermissibly based the award on a cumulative injury theory, when the employer only had adequate notice of an acute injury. The court of appeals affirmed. Because we do not find an abuse of discretion by the commissioner, we vacate the decision of the court of appeals, reverse the judgment of the district court, and remand to the district court for further proceedings.

I. Background and Facts

For nearly thirty years, Jack Waters worked as a custodian for the University of Iowa Hospitals and Clinics (Hospitals). He also has a long history of back problems. On June 21, 1997, Waters turned in his keys to his supervisor and said “This is it.”

On February 3, 1999, Waters filed two claims for workers’ compensation benefits from the Hospitals. In both claims, Waters alleged he injured his whole body, and specifically his back, at work. In the first, he alleged his “lower back gave way” on October 24, 1996, when “pushing loaded custodial cart around corner.” In the second, he claimed he suffered an injury while “lifting, carrying, and dumping heavy trash at work” on June 16,1997.

At Waters’ deposition in June 1999, confusion arose over the date of the alleged June 16, 1997 injury. Waters’ attorney stated he planned to “amend the date of injury to the last date that [Waters] worked, which I believe was June 21, 1997.”

At the beginning of the hearing before the deputy commissioner, Waters’ attorney again raised this issue. After pointing out Waters’ history of back problems, he argued the commissioner had the discretion “to set the date of injury or cumulative-type injury such as this on the date that the evidence tends to show the injury occurred.” The Hospitals objected. The Hospitals maintained Waters had given several different versions of what caused his injuries and did not “allege a cumulative injury.” The Hospitals further argued Waters’ petition alleged a “specific incident occurred.”

The deputy ruled:

THE DEPUTY: All right. Well, I will consider the issue in the light of the evidence and pleadings and other things in the case. And I evaluate everything in order to decide the case. But I will indicate — or I do consider fixing the alleged date of injury understanding that the injury itself is disputed. I will understand — I understand that fixing the date of the alleged injury is one of the issues in the case.

This issue did not arise again before the deputy commissioner. The deputy commissioner found the Hospitals owed Waters nothing further for his first claim for benefits, but determined the Hospitals owed Waters permanent total disability benefits on the second claim. The deputy commissioner found

Jack Waters is currently disabled by the condition of his back and that the condition of his back is the result of multiple acute injuries and repetitive injury that he sustained while employed by the University of Iowa Hospitals and Clinics as a regular employee and as an inmate performing work release duties. It is also found that June 21, 1997 marked the point when the cumulative injury process progressed to the point that Jack was unable to continue working and he felt compelled to seek medical care because he knew that his symptoms had progressed to the point that surgery was likely.... It is concluded that Jack Waters has carried the burden of proving by a preponderance of the evidence that he sustained cumulative trauma injury that arose out of and in the course of his employment on June 21, 1997. In this case the date of injury is Jack’s last day of work.

The Hospitals filed an intra-agency appeal. In one of its four allegations of error, the Hospitals claimed “[t]he hearing officer’s award of benefits under a cumulative injury theory is inappropriate as such a theory was never pled by the claimant, who described a specific traumatic injury.” In final agency action, the chief deputy commissioner rejected the Hospitals’ claims, including its allegation that an award of benefits under a cumulative injury theory was improper. Citing rulings in two prior intra-agency appeal decisions, the chief deputy wrote:

A claimant is not limited to a specific injury theory contained in the pleadings. If the evidence shows a cumulative injury when a traumatic injury was pled, an award based on a cumulative injury may be made unless substantial prejudice results to defendants. In this case, claimant’s June 16, 1997 injury petition, later amended to June 21, 1997, could have been read as either claiming a cumulative or a traumatic injury. Even if read as a traumatic injury pleading, defendants were well aware of claimant’s long-standing history of back injuries, and were not prejudiced by a finding of a cumulative injury.

The Hospitals, sought judicial review, alleging the same errors asserted on intra-agency appeal — including, but not limited to, the claim that “[t]he Workers’ Compensation Commissioner’s award of benefits [was] under a legal theory never pled by Claimant.” The district court agreed with the Hospitals, and remanded for further proceedings. Citing due process principles elucidated in Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824 (Iowa 1992), the district court reversed, holding it was fundamentally unfair to permit Waters to change his theory of the case on the day of the hearing, and that the Hospitals suffered prejudice as a result. The district court reasoned cumulative and acute injury cases have different elements and require different proof; cumulative injury cases, the court posited, almost always require expert testimony. Finding the Hospitals believed Waters was alleging an acute injury and was clearly unprepared to defend against a cumulative injury claim, the court held it was an abuse of discretion for the commissioner to base an award on a cumulative injury.

Waters appealed. Waters claimed (1) the district court should have reviewed the commissioner’s decision for substantial evidence, not an abuse of discretion, and (2) applying the correct standard of review, the record contained sufficient evidence to support the commissioner’s decision. The court of appeals affirmed the district court. Waters again raises these two issues for our review.

II. Standard of Review

“We review the district court decision by applying the standards of the [Iowa] Administrative Procedure Act to the agency action to determine if our conclusions are the same reached by the district court.” Locate.Plus.Com, Inc. v. Iowa Dep’t of Transp., 650 N.W.2d 609, 612 (Iowa 2002). Under the Iowa Administrative Procedure Act, a reviewing court may reverse the decision of the workers’ compensation commissioner if it is unsupported by substantial evidence in the record or characterized by an abuse of discretion. See Iowa Code § 17A.19(10) (2001) (“court shall reverse, modify, or grant other appropriate relief ... if it determines that substantial rights of the person seeking judicial relief have been prejudiced because of [one of fourteen grounds, including lack of substantial evidence and when characterized by an abuse of discretion]”). “The burden of demonstrating the required prejudice and the invalidity of agency action is on the party asserting invalidity.” Id. § 17A.19(8)(a).

Substantial evidence is “the quantity and quality of evidence that would be deemed sufficient by a neutral, detached, and reasonable person, to establish the fact at issue when the consequences resulting from the establishment of that fact are understood to be serious and of great importance.” Id. § 17A.19(10)(/)(1). While “courts must not. simply rubber stamp the agency fact finding without engaging in a fairly intensive review of the record to ensure that the fact finding is itself reasonable ... evidence is not insubstantial merely because it would have supported contrary inferences.” Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 499 (Iowa 2003) (quoting, in part, Arthur E. Bonfield, Amendments to Iowa Administrative Procedure Act (1998) at 68 (1998)).

The commissioner commits an abuse of discretion when the exercise of discretion is clearly erroneous or rests on untenable grounds. IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 630 (Iowa 2000) (citing Brunner v. Brown, 480 N.W.2d 33, 37 (Iowa 1992)). This standard, when applied in administrative proceedings, is the same as the abuse of discretion review used in evaluating the exercise of the district court’s discretion in other contexts. Id. (citing Frank v. Iowa Dep’t of Transp., 386 N.W.2d 86, 87-88 (Iowa 1986)).

III. The Merits

A. Substantial Evidence vs. Abuse of Discretion

The first issue raised for our review is whether the district court erred in reviewing the commissioner’s decision for an abuse of discretion, as opposed to substantial evidence. We reject Waters’ claim that the district court erred in failing to review for substantial evidence. The substantial-evidence standard only applies to factual findings. See Iowa Code § 17A.19(10)(f) (authorizing reversal or modification on judicial review when the commissioner’s decision is “[b]ased upon a determination of fact clearly vested by a provision of law in the discretion of the agency that is not supported by substantial evidence in the record ....) (emphasis added). Whether Waters’ application for workers’ compensation benefits sufficiently informed the Hospitals of the possibility of a cumulative injury claim is not, first and foremost, a factual issue, but rather a matter within the agency’s discretion. See Stephenson v. Furnas Elec. Co., 522 N.W.2d 828, 831 (Iowa 1994) (“The imposition of sanctions by administrative agencies is discretionary.”). We agree with the district court that the proper standard of review is for an abuse of discretion, not substantial evidence.

B. Sufficiently Informing the Hospitals of a Cumulative-Injury Claim

The district court determined the chief deputy commissioner abused his discretion in permitting an award upon a cumulative injury theory. The court reasoned acute and cumulative injury cases require proof of different elements, and therefore the Hospitals was, in effect, deprived of a defense.

We begin our analysis with the recognition that our workers’ compensation law is for the benefit of working men and women, “and should be, within reason, liberally construed.” Barton v. Nevada Poultry Co., 253 Iowa 285, 289, 110 N.W.2d 660, 662 (1961); see Orr v. Lewis Cent. Sch. Dist., 298 N.W.2d 256, 261 (Iowa 1980) (workers’ compensation law should be liberally construed). “Its bene-ficient purpose should not be defeated by reading something into a section which is not there, or by a narrow or strained construction.” Disbrow v. Deering Implement Co., 233 Iowa 380, 392, 9 N.W.2d 378, 384 (1943).

With respect to the merits of the case, it should be pointed out that we have stated “[a]n application for arbitration is not a formal pleading and is not to be judged by the technical rules of pleading.” Coghlan v. Quinn Wire & Iron Works, 164 N.W.2d 848, 850 (Iowa 1969) (emphasis added). As one commentator has noted,

The petition for arbitration may state the claims in general terms and technical or formal rules of procedure need not be observed. The key to pleading in an administrative process is nothing more than opportunity to prepare and defend. The employer is to be afforded a substantive right to be at least generally informed as to the basic material facts upon which the employee relies as a basis for compensation.

James R. Lawyer and Judith Ann Graves Higgs, Iowa Workers’ Compensation— Law & Practice § 21-7, at 231 (3d ed.1999) (footnotes and internal quotations omitted).

Although Waters’ application for benefits was styled an “Original Notice and Petition,” in truth such documents are nothing more than easily filled out forms in which workers may seek redress in arbitration for alleged injuries sustained on the job. Waters’ application, despite its title, bears little resemblance to formal pleading — common law or notice. Instead, Waters’ form merely consists of approximately thirty boxes, in which he was asked to supply basic information about his claim. This form appears relatively simple to complete, and was ostensibly designed so a non-lawyer could initiate the arbitration process without assistance from persons trained in the law. It is important to point out the form does not ask applicants to state whether their injuries were cumulative or acute.

Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824 (Iowa 1992), is similar to the case at bar. In Oscar Mayer, the employee alleged four specific injury dates in her pleadings. 483 N.W.2d at 827. The industrial commissioner found the employee failed to prove compensable injuries on each of the four incidents, but found she had demonstrated a cumulative injury claim once all four were taken into account. Id. at 827-28. The employer challenged the industrial commissioner’s decision, alleging it suffered prejudice because the employee recovered on a theory which she had not pled. Id. at 828.

In analyzing the employer’s argument, we stated

due process requires that a party “be informed somehow of the issue involved in order to prevent surprise at the hearing and allow an opportunity to prepare.... The test is fundamental fairness, not whether the notice meets technical rules of common law pleading.”

Id. (quoting Wedergren v. Bd. of Directors, 307 N.W.2d 12, 16 (Iowa 1981)). In Oscar Mayer, we concluded the employer “was sufficiently apprised of the possibility that the cumulative injury doctrine might be relied upon to justify awarding [the employee] workers’ compensation.” Id. We pointed out that in one of her four petitions for arbitration the employee referred to the cause of her injury as “gradual,” and, in another, as “repetitive.” Id. Moreover, we stated

it is not clear how [the employer] has been prejudiced by the allegedly deficient pleading as [the] essential cause of action as well as the supporting facts remain unchanged under a cumulative injury rationale. A showing of prejudice is essential to establishing a due process violation....

Id.

Similar considerations apply to Waters’ case. As previously noted, the chief deputy commissioner determined Waters’

June 16, 1997 injury petition, later amended to June 21, 1997, could have been read as either claiming a cumulative or a traumatic injury. Even if read as a traumatic injury pleading, defendants were well aware of claimant’s long-standing history of back injuries, and were not prejudiced by a finding of a cumulative injury.

Although Waters’ petition does not specifically plead a cumulative injury, neither does it specifically plead an acute injury. This is not surprising, since the form does not require claimants to specify whether their injuries are “cumulative” or “acute.” Nonetheless, Waters’ vague use of three gerunds (“lifting, carrying, and dumping”) implies his injury resulted from repetitive work-related behavior. This language contrasts with Waters’ February 3, 1999 claim for workers’ compensation benefits, in which he referred to a specific incident using the past tense (“pushing a loaded custodial cart around corner and lower back gave way”).

This conclusion is not inconsistent with the fact Waters alleged a specific date of injury (“June 16, 1997”). The instructions accompanying the form Waters filled out require claimants to allege “[a] separate date of injury” for a cumulative injury claim. Nor, under these circumstances, is a five-day discrepancy between proof and pleading regarding the injury date fatal to Waters’ cumulative injury theory of recovery. See Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 373-74, 112 N.W.2d 299, 301 (1961) (difference of approximately two weeks).

Discovery should have informed the Hospitals’ attorney of the cumulative nature of Waters’ injury. Counsel for the Hospitals does not claim to have asked Waters’ legal theory in discovery. Testimony taken at the deposition stage of the proceedings should have alerted the Hospitals to a cumulative injury claim. A doctor testified to Waters’ long history of back problems, which Waters confirmed in his own deposition. Although a history of back problems does not always necessitate a cumulative injury finding (in some cases these two facts could be unrelated), such a history should alert an employer to the possibility of a cumulative injury claim. See George A. Hormel & Co. v. Jordan, 569 N.W.2d 148, 153 (Iowa 1997) (finding employer had adequate notice of cumulative injury where employer accommodated employee by moving him to less strenuous job and authorized physicians to examine injuries). Moreover, two of Waters’ statements clearly informed the Hospitals of a cumulative injury:

A. I tried to ask them to help me get into some other kind of work, so I wouldn’t be doing what I was doing that was causing the harm—
Q. Sure. A. — the deterioration.
A. I guess I would say it’s like if you got a jackhammer, and you put somebody on a jackhammer that has a bum back, you’re going to end up with more of a bum back. And that’s what, more or less, they did.

(Emphasis added.) Given these statements, as well as for the reasons noted above, we conclude the Hospitals was “sufficiently apprised of the possibility that the cumulative injury doctrine might be relied upon to justify awarding ... workers’ compensation.” Oscar Mayer, 483 N.W.2d at 828; accord Beckstead v. Workers’ Comp. Appeals Bd., 60 Cal.App.4th 787, 791-92, 71 Cal.Rptr.2d 254, 256 (1997) (holding appeal board abused its discretion in failing to consider cumulative trauma injury because employee failed to formally amend pleadings); Basset-McGregor v. Workers’ Comp. Appeals Bd., 205 Cal.App.3d 1102, 1116, 252 Cal.Rptr. 868, 877 (1988) (“[A]n amendment substituting a claim for cumulative rather than specific injury does not constitute a new and different cause of action [where] ... the disability is the same and the injury arose from the same set of facts, and is consistent with the guiding principle that claims should be adjudicated on substance rather than formality of statement.”).

The facts of this case are clearly distinguishable from those of another case filed today, Eberhart Construction v. Curtin, in which we find an abuse of discretion because of a “surprise development” that prejudiced the employer. 674 N.W.2d 123, 125-28 (Iowa 2004). In reaching our decision, we recognize a defendant may approach a cumulative injury case differently than an acute injury case; in this case, however, we simply hold the Hospitals was not unfairly surprised by the evidence or the award. The Hospitals has not proved the commissioner “exercised its discretion on untenable grounds or its exercise of discretion was clearly erroneous.” IBP, 604 N.W.2d at 630.

IV. Conclusion

We vacate the decision of the court of appeals. Because we find the commissioner did not abuse its discretion in making an award based on a cumulative injury, we reverse. We remand to the district court for further proceedings not inconsistent with this decision, including consideration of the Hospitals’ other allegations of error, which the district court’s original ruling made unnecessary to consider.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED; REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS.

      . The court of appeals recognized that, at times, the parties have characterized this issue as whether Waters should be permitted to amend his theory of the case on the day of the hearing. Noting the Hospitals never formally moved to amend its petition, the court instead framed the issue as a dispute over the scope of the pleadings.
      For reasons which will soon become clear, we take a slightly different view. The issue in this case is whether Waters’ application for workers' compensation benefits and the discovery process that followed sufficiently informed the Hospitals of a cumulative injury claim.

      . Even if the commissioner’s decision were viewed as accepting a motion to amend a formal pleading, in another context we stated:
      Allowance of an amendment to a pleading is the rule and denial the exception, although an amendment is not permissible which will substantially change the issue. Additionally, a trial court has considerable discretion as to whether an appropriate request for leave to amend should be granted or denied and we will reverse only where a clear abuse of discretion is shown.

        Allison-Kesley Ag Ctr., Inc. v. Hildebrand, 485 N.W.2d 841, 845 (Iowa 1992) (emphasis added) (quoting M-Z Enter. Inc. v. Hawkeye-Sec. Ins. Co., 318 N.W.2d 408, 411 (Iowa 1982)).


source: Caselaw Access Project

author: WIGGINS, Justice.

license: Public Domain

text:
    W & G McKINNEY FARMS, L.P., Appellant, v. DALLAS COUNTY BOARD OF ADJUSTMENT, Dallas County, and Hallett Construction Company d/b/a Hallett Materials, Appellees.
    No. 02-1502.
    Supreme Court of Iowa.
    Jan. 22, 2004.

      James V. McKinney of McKinney Law Offices, P.C., Waukee, for appellant.
    James E. Brick and James E. Nervig of Gentry, Bowers, Swartz, Stoltze, Schuling, Levis, P.C., Des Moines, for appellees Dallas County Board of Adjustment and Dallas County.
    Thomas D. Hanson and Barry A. Russell of Hanson, Bjork & Russell, L.L.P., Des Moines, for appellee Hallett Construction Company.
   WIGGINS, Justice.

This appeal involves the decision by the Dallas County Board of Adjustment (Board) to grant a conditional use permit to Hallett Construction Company d/b/a Hallett Materials (Hallett) for the extraction of sand and gravel from a parcel of land located in Dallas County. W & G McKinney Farms, L.P. (McKinney) petitioned the district court for a writ of cer-tiorari challenging the Board’s issuance of the conditional use permit. The district court denied McKinney’s request for relief, determining the Board acted properly in granting the conditional use permit to Hal-lett. McKinney appeals the district court’s decision claiming the issuance of the conditional use permit by the Board is inconsistent with the Comprehensive Plan for the Unincorporated Area of Dallas County (Comprehensive Plan). Finding McKinney’s claim without merit, we affirm the district court’s judgment, which approved and confirmed the issuance of the conditional use permit by the Board.

I. Background Facts and Proceedings.

Hallett requested a conditional use permit to extract sand and gravel on a parcel of land located in unincorporated Dallas County. This property is located on the north bank of the Raccoon River in southeast Dallas County. It is zoned A-2, which is an Agriculture/Floodplain/Conservation District. The Dallas County zoning ordinance allows the mining and extraction of minerals and raw materials, including sand and gravel pits, as a conditional use in an A-2 zoning classification.

McKinney owns land located to the north and east of Hallett’s property that is being developed for commercial use. Highway F90 and a railroad right of way separate McKinney’s property from Hal-lett’s property. McKinney advertises its development as having multiple zoning accommodating professional-office space, business-park space, flex space, retail, medium-density residential or light industrial. It is largely undeveloped except for the Des Moines Area Community College facility located on the eastern edge of the property. The Des Moines Area Community College facility is approximately two miles from Hallett’s site. McKinney also owns another piece of property containing a miniature golf course and driving range approximately one and a half miles east of the Hallett entrance on the south side of Highway F90.

An old gravel pit, currently a swimming area called Clear Water Beach, lies south of the driving range. Two gravel pits are located on the south side of the Raccoon River approximately one mile east of Clear Water Beach. One of these gravel pits is still in operation. A nursery garden lies adjacent to the Hallett property on the east. On the south side of the river is the River Oaks residential development. Greenbelts located on the north and south banks of the Raccoon River separate the River Oaks development from Hallett’s site. The residence closest to Hallett’s property is about 3200 feet from the Hal-lett site.

The writ returned in the district court reflects a great deal of history surrounding the granting of the conditional use permit. In the summer of 2000, Hallett voluntarily agreed to annex its property into the city of West Des Moines. As a condition of the annexation, Hallett requested a conditional use permit to operate the sand and gravel pit. After a public hearing, the West Des Moines Plan and Zoning Commission recommended approval of the conditional use permit with restrictions. The West Des Moines City Council disagreed with the Plan and Zoning Commission’s recommendation and refused to issue the conditional use permit. Upon West Des Moines’ refusal to issue the conditional use permit, Hallett withdrew its consent to the voluntary annexation.

In September 2000 Hallett requested a conditional use permit from Dallas County. The Dallas County zoning ordinances in effect at the time of this request empowered the Board of Supervisors (Supervisors) to issue conditional use permits. In December 2000 the Supervisors approved the conditional use permit subject to certain restrictions. McKinney filed an action alleging the Iowa Code only grants the power to issue conditional use permits to the Board. In response to that lawsuit, the Supervisors referred Hallett’s application for a conditional use permit to the Board. The Board approved the conditional use permit subject to the same restrictions.

In July 2001 the district court found the Dallas County statutory scheme to be inconsistent with Iowa law and invalidated the conditional use permit issued to Hallett by the Supervisors. In response to this ruling, the Supervisors amended its zoning ordinances giving the Board the power to issue conditional use permits.

In October 2001 Hallett resubmitted its application to the Board under the amended ordinance. On October 17 the Board held a public hearing on the application. By a unanimous vote the Board approved the conditional use permit subject to the following conditions:

1. The use of electric pump dredge and electric de-watering equipment in order to reduce noise levels produced from this site. The backup alarms for equipment owned/operated by the applicant shall be set to the lowest (quietest) setting which still meets Federal safety standards.
2. The use is limited to operations between the hours of 6:00 a.m. to 6:00 p.m. on weekdays and 8:00 a.m. to 1:00 p.m. on Saturdays with no operation allowed on Sundays. When electricity is available, no diesel equipment may be used on site if there is suitable electric equipment that can do the job. This is intended to reduce the noise of operations and to limit their duration to daytime hours during the week and limited hours on weekends.
3. All site lighting shall be downward facing to reduce glare to surrounding properties and the site lighting shall not be allowed to exceed one (1) foot candle at the property lines.
4. The construction of a twelve (12) foot high landscaped berm along the north property line. The berm shall undulate (horizontally and vertically) in places to provide visual interest and the majority of the landscaping shall be planted in front of the berm (Grand Avenue side) to allow the berm to be removed after the operation ceases, without eliminating the established landscape. Some of the landscaping shall be planted on the berm in locations where it would look natural to remain after the mining operations cease. The side slopes of the berm shall not exceed 3:1 and shall be decreased in some areas to approach 8:1 to eliminate the levee appearance. Additional landscaping material shall be clustered in the lower undulations to offset the loss of berm height.
5. Urethane or similar noise reducing material shall be used to line all chutes.
6. Install a sprinkler system that will wet the haul road surface as needed, and use a water truck or other dust suppressing measure on site to mitigate any dust problems.
7. The Owner-developer will develop a reclamation plan for the property after consultation with the Dallas County Conservation Commission or a group commissioned by the Dallas County Conservation Commission.
8. Provide an irrevocable offer of dedication of the entire property to the County, or another entity acceptable to the County, for use as a park or for other conservation purposes after the mining operation and reclamation obligations are complete.
9. To have no use take place in the floodway portion of the property (so vegetation floodway remains as a buffer).
10. To require that if and when an arterial road is built running North and South thru or along this property, that a buffer and berm be put in along it.
11. The mining operation shall be limited to ten years from the date this permit is granted, and all reclamation shall be completed no later than two years following the termination of the mining operation.
12. Exclude from mining area 150 feet from the fence line representing the southern edge of the south side of the right of way of county road on F90.
13. Conservation Fund. Owner-developer agrees to pay into a County designated fund an amount equal to $.10 per ton of all aggregate sold from the permitted site. This amount shall be paid annually. The fund shall be used for conservation purposes as appropriated by the Dallas County Board of Supervisors. This Conservation Fund is in addition to Owner-developer’s obligation to reclaim the site under the terms of the permit and would be in addition to the reclamation bond, which Owner-developer would be obligated to file with the State of Iowa as a condition for issuance of a mining permit.
14. Reclamation Bond. Upon commencement of mining, Owner-developer will post a $500,000.00 bond to secure its obligation to reclaim the property according to the reclamation plan to be developed in conjunction with the Dallas County Conservation Board. The Reclamation Bond is in addition to any reclamation bond required for a mining permit under Iowa law.

McKinney brought an action in the district court challenging the Board’s decision. The district court approved and confirmed the acts and decision of the Board in granting a conditional use permit with restrictions to Hallett. McKinney appeals this decision.

II.Issue.

The only issue raised by McKinney on appeal is whether the issuance of the conditional use permit by the Board complied with the Comprehensive Plan.

III. Scope of Review.

Our review of the district court’s ruling is limited to correction of errors at law. Iowa R.App. P. 6.4. The district court’s factual findings are binding on appeal if they are supported by substantial evidence. Ackman v. Bd. Of Adjustment, 596 N.W.2d 96, 100 (Iowa 1999). If the reasonableness of the board’s action is “open to a fair difference of opinion, the court may not substitute its decision for that of the board.” Cyclone Sand & Gravel Co. v. Zoning Bd. of Adjustment, 351 N.W.2d 778, 783 (Iowa 1984).

IV. Analysis.

The Dallas County Zoning Ordinance divides Dallas County into a number of zoning districts. Dallas County, Iowa, Ordinances ch. 45 (2001). Each zoning district has its own particular set of district regulations. Id. The A-2 Agricultural/Floodplain/Conservation District allows sand and gravel pits as a conditional use. Dallas County, Iowa, Ordinances § 45.10(2.5). The Board has the authority to issue a conditional use permit to operate a sand and gravel pit in an A-2 District. Id.

The purpose of conditional use permits is to provide for flexibility in what otherwise would be the rigidity of zoning ordinances, while at the same time controlling troublesome aspects of somewhat incompatible uses by requiring certain restrictions and standards. Willett v. Cerro Gordo County Zoning Bd. of Adjustment, 490 N.W.2d 556, 560 (Iowa 1992). An application for a conditional use permit must meet all conditions of an ordinance. The failure to satisfy even one of the ordinance’s conditions is fatal to a permit application. Cyclone Sand, 351 N.W.2d at 783. Further, the applicant has the burden of proof in showing that all the conditions of the ordinance are satisfied. Johnson v. Bd. of Adjustment, 239 N.W.2d 873, 885 (Iowa 1976).

Section 45.09(3) of the Dallas County Zoning Ordinance, as amended, controls the issuance of Hallett’s conditional use permit. It provides in relevant part:

C. Conditions To Authorization. No conditional use shall be granted by Board of Adjustment until the Board of Adjustment first finds:
(a) Surrounding Area. The value and qualities of the area (or neighborhood) surrounding the conditional use are not substantially injured, and the establishment of a conditional use will not impede the normal and orderly development and improvement of surrounding undeveloped property for uses predominant in the area.
(b) Infrastructure. That adequate utilities, access road, drainage, and other necessary facilities have been or are being provided.
(c) Intent of Ordinance. That the conditional use is consistent with the intent and purpose of this Ordinance to promote public health, safety, and general welfare.
(d) Nuisance Factors. That adequate measures have been or will be taken to prevent or control offensive odor, fumes, dust, noise, and vibration, so that none of these will constitute a nuisance and to control lighted signs and other lights in such a manner that no disturbance to neighboring properties will result.
(e) Comprehensive Plan. That the conditional use is not inconsistent with the comprehensive plan and land use policies of the County.

McKinney concedes all the above factors were satisfied, with the exception of (e).

The sole issue is whether “the conditional use is not inconsistent with the comprehensive plan and land use policies” of Dallas County.

Dallas County adopted its Comprehensive Plan in 1998. It consists of a six-page document and two maps. It is “a statement of goals, objectives, and policies, that are to be used to guide land use decisions.” Comprehensive Plan for the Unincorporated Area of Dallas County, p. 1 (Nov. 1998). Its Mission Statement provides:

Dallas County has significant natural resources. Agricultural land and the Raccoon River Greenbelt area should be protected from development. Development should be directed in and near incorporated areas and away from prime agricultural areas and greenbelt areas. The lands in Agricultural Zones should be exclusively intended for agriculture, conservation, recreation, floodplain and open space.

Id. at 3.

In addition to the Mission Statement, the Comprehensive Plan contains eleven goals and objectives. The goals and objectives relevant to this appeal are:

Goal 3: Protect prime agricultural land (CSR 71+) from development and utilize less productive land first.
Goal 4: Protect land that has significant natural, cultural, or historical resources.
Goal 8: Guide non-agricultural uses to areas with lower quality (CSR 5-60) agricultural land, or into incorporated areas.
Goal 9: Encourage development and infill at Interstate 80 interchanges and within existing Industrial and Commercial lands.
Goal 11: Encourage development within corporate city limits. If land is unavailable, county is likely to be receptive to new development within ½ mile of existing corporate city limits.

Id. at 3-4.

Lastly, the implementation section of the plan contains the following language:

Flexibility in implementing the Comprehensive Plan requires balancing the concepts of the plan with the realities of the growth and change.

Id. at 4.

McKinney argues there was no determination from the Board as to whether Hal-lett’s permit was “not inconsistent with the comprehensive plan.” McKinney also contends there was no showing that the conditional use permit would encourage development. For support, McKinney refers to Goals 9 and 11 of the Comprehensive Plan. We find these arguments unpersuasive.

The proceedings in the district court were tried de novo. Iowa Code § 335.21 (2001). The writ as returned by the Board to the district court contained a substantial portion of the record made before the Board. See Iowa Code § 335.20 (requiring the board of adjustment to provide the district court copies of the original papers it acted upon as may be pertinent and material to show the grounds of its decision). The Board specifically found, “[T]he petition [for the conditional use permit] meets all the requirements of chapter 45 of the Dallas County Code of Ordinances, and should now be finally approved.” In addressing the claims made by McKinney and the other objectors, the district court concluded, “[T]he value and qualities of the surrounding area will not be substantially injured nor the orderly development and improvement of the surrounding undeveloped property impeded as to uses predominant in the area,” and “the conditional use permit granted is consistent with the comprehensive plan.”

In determining whether the district court’s opinion is supported by substantial evidence, we must consider the Comprehensive Plan in its entirety. Strict adherence to certain statements made in the plan could actually negate other goals and objectives of the comprehensive plan. Ackman, 596 N.W.2d at 103. The Comprehensive Plan recognizes competing interests exist between agriculture uses and development of the agriculture land for residential and commercial uses. Comprehensive Plan for the Unincorporated Area of Dallas County, p. 4. The Comprehensive Plan requires that its competing concepts be balanced against the realities of growth and change in the county. Id.

The record indicates the restrictions placed on the conditional use permit by the Board make the mining operation minimally intrusive to the surrounding area. As a factual matter, the sand and gravel mined from this operation will be used to construct the roads and buildings in the area. These factors should encourage development.

The record also indicates the mining operation is located on land designated as “Floodplain Soils” on the Comprehensive Plan’s Soil Classification and Slope Analysis map. This use will protect prime agriculture land from development by using less productive land first.

Additionally, the record indicates one of the restrictions imposed by the Board required the mining operations to terminate ten years from the date of the issuance of the permit. At that time, Hallett will reclaim the property for use as a park or for other conservation purposes. This is consistent with using agricultural lands for conservation, recreation, floodplain, and open space. It will also make the area more aesthetically pleasing.

Substantial evidence exists in the record supporting the findings of the district court. The district court was correct when it determined the granting of the conditional use permit to Hallett by the Board “is not inconsistent with the comprehensive plan and land use policies of the County”

V. Disposition.

In sum, we conclude the record amply supports the Board and the district court’s findings. We find no basis for setting aside the Board’s issuance of the conditional use permit to Hallett and affirm the judgment of the district court.

AFFIRMED.


author: TERNUS, Justice.

text:
    STATE of Iowa, Appellee, v. Charles G. PAXTON, Appellant.
    No. 02-1589.
    Supreme Court of Iowa.
    Jan. 22, 2004.

      Patrick W. O’Bryan, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, John P. Sarcone, County Attorney, and Steve Foritano, Assistant County Attorney, for appellee.
   TERNUS, Justice.

The defendant, Charles Paxton, was convicted and sentenced for a theft he committed in his capacity as a stockbroker. In this appeal, he challenges a district court ruling that increased the amount of restitution he was required to pay to the victim of his crime. The appeal was transferred to the court of appeals where the district court’s judgment was affirmed. We granted Paxton’s application for further review.

After reviewing the record and considering the arguments presented, we are persuaded the district court erred in failing to factor into its calculation of the victim’s damages the sum paid to the victim by the defendant’s former employer. We vacate the contrary decision of the court of appeals, reverse the judgment of the district court, and remand the case for entry of a restitution order consistent with our decision.

I. Background Facts and Proceedings.

The record supports the following rendition of facts. In May 1995, Charles Pax-ton was a stockbroker for Everen Securities, Inc. At that time, Robert and Marilyn Clauss loaned Paxton $300,000 for the purchase of convertible notes in Diacrin, Inc. Pursuant to the parties’ written agreement, Robert Clauss was to receive fifteen percent of the profits from any stock ultimately obtained from the convertible notes.

Notwithstanding his agreement with the Clausses, Paxton used only $270,000 to purchase the notes and spent the remainder of the loan proceeds on personal expenses. Later, he converted the notes into 108,000 shares of Diacrin stock. On June 2, 1997, Paxton sold the shares for $1,147,500. The sale resulted in profits of $877,500 (the sale proceeds minus the purchase cost of $270,000). Paxton should have paid Clauss fifteen percent of these profits — $131,625—plus the loan amount of $300,000. Instead, Paxton paid Clauss only $134,000 and converted the balance of the sale proceeds to his personal use.

The State charged Paxton with first-degree theft as a result of these events. Paxton pled guilty to third-degree theft in violation of Iowa Code sections 714.1(1) and 714.2(3) (1999). The district court gave Paxton a suspended, indeterminate two-year prison term and placed him on probation. The court further fixed Pax-ton’s required victim restitution at $165,000 (the loan amount minus the sum Paxton had already repaid Clauss).

Paxton subsequently applied for a modification of the restitution order. He sought a credit for $28,927 Clauss received from Paxton’s bankruptcy estate. Paxton also requested credit for an arbitration award in the amount of $40,000 paid by Everen Securities to Clauss. The State sought to increase the restitution amount by the share of profits that Clauss was entitled to receive from the sale of the stock.

After a hearing, the district court determined Clauss was entitled to restitution for his agreed share of the profits on the stock sale ($131,625). The court also decided that the restitution award should be reduced by the amount Clauss received from the defendant’s bankruptcy estate. The court refused, however, to deduct the arbitration payment from the amount of restitution owed by Paxton. These calculations increased the defendant’s required restitution to $267,798.

Paxton appealed, asserting the record did not contain substantial evidence in support of the award. More specifically, Pax-ton claimed the evidence was insufficient to show the terms of his agreement with Clauss, as well as the exact extent of the profits realized in the transaction. The defendant also contended his obligation to Clauss was extinguished in the bankruptcy proceeding and, consequently, no amount of restitution was appropriate. In addition, Paxton asserted error in the district court’s refusal to reduce the restitution order by the amount of the arbitration payment from Paxton’s former employer. The defendant’s final complaint rested on his assertion that his agreement with the Clausses was an illegal contract, and consequently Clauss would not have been able to recover any damages in a civil action.

The court of appeals affirmed the district court’s restitution order. The appellate court concluded the parties’ written agreement provided an adequate basis for the trial court’s calculation of Clauss’s damages, which properly included the profits expected by Clauss as established by the agreement. The court of appeals rejected Paxton’s claim the restitution amount should be limited to the amount paid by the bankruptcy estate. The court further concluded Paxton should not receive a credit for the arbitration award Clauss received from Paxton’s former employer. Finally, the court determined that Paxton failed to preserve his claim that his agreement with the Clausses was illegal because Paxton failed to raise the issue in district court.

We granted Paxton’s application for further review. Because we agree with the court of appeals’ resolution of these issues with one exception, we limit our discussion to that issue: credit for the arbitration payment.

II. Scope of Review.

We review the trial court’s restitution order for correction of errors of law. See State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001). We are bound by the district court’s findings of fact so long as they are supported by substantial evidence. See id.

III. Determination of Amount of Victim Restitution.

Iowa criminal defendants who plead guilty or who are found guilty must make “restitution ... to the victims of the offender’s criminal activities.” See Iowa Code § 910.2. Restitution includes the “payment of pecuniary damages to a victim.” Id. § 910.1(4). Pecuniary damages are defined as “all damages to the extent not paid by an insurer, which a victim could recover against an offender in a civil action arising out of the same facts or event, except punitive damages and damages for pain, suffering, mental anguish, and loss of consortium.” Id. § 910.1(3) (emphasis added).

The words used by the legislature to define “pecuniary damages” clearly indicate a legislative intent that restitution to a victim depend on what the victim could obtain in a civil action against the defendant. See generally State v. Pickett, 671 N.W.2d 866, 870 (Iowa 2003) (“ ‘When we interpret a statute, we attempt to give effect to the general assembly’s intent in enacting the law. Generally, this intent is gleaned from the language of the statute.’ ” (Citation omitted.)); Teggatz v. Ringleb, 610 N.W.2d 527, 530 (Iowa 2000) (“[I]f the terms of the statute are explicit, the plain meaning of the language will be applied.”). Therefore, in determining whether a defendant’s restitution obligation is reduced by payments from third parties vicariously liable for the defendant’s conduct, we start with an examination of the victim’s potential civil recovery.

The question here is whether any judgment obtained by Clauss against Pax-ton would be subject to a dollar-for-dollar credit for payments made by Paxton’s employer. This type of credit, known as the pro tanto credit rule, “is designed to prevent a double recovery by the injured party.” Jamieson v. Harrison, 532 N.W.2d 779, 781-82 (Iowa 1995). In examining the matter before us, we think a pro tanto credit would be required under any theory of recovery — negligence, fraud, or breach of contract — available to Clauss in an action against Paxton.

We have held “that the pro tanto rule remains viable in cases not affected by the enactment of chapter 668,” Iowa’s comparative fault statute. Tratchel v. Essex Group, Inc., 452 N.W.2d 171, 181 (Iowa 1990); see also Thomas v. Solberg, 442 N.W.2d 73, 76-77 (Iowa 1989) (stating chapter 668 adopted the proportionate credit rule). Fraud actions are not included within the scope of chapter 668. See Tratchel, 452 N.W.2d at 181. Nor are breach-of-contract actions encompassed in that statute. See Vasquez v. LeMars Mut. Ins. Co., 477 N.W.2d 404, 409-10 (Iowa 1991). Therefore, the pro tanto credit rule would apply to any recovery by Clauss under one of these theories.

Even if Clauss could recover under a negligence theory subject to chapter 668, we do not think the proportionate credit rule of that statute would apply. Because Everen Securities was vicariously liable for Paxton’s conduct (rather than independently liable to Clauss), Everen Securities and Paxton would be treated as a single party under the comparative fault statute. See Iowa Code § 668.3(2)(&) (instructing court to treat defendants, where appropriate, “as a single party” for purposes of allocating fault); Biddle v. Sartori Mem’l Hosp., 518 N.W.2d 795, 799 (Iowa 1994) (stating doctor and hospital — vicariously liable for doctor’s negligence — “were properly ‘treated as a single party’ ” for purposes of release obtained by doctor (citing Iowa Code section 668.3(2)(&))). Consequently, Everen Securities and Paxton would be liable for the same act of fault and accordingly would be jointly allocated the same portion of Clauss’ damages (in this case one hundred percent since there are no other parties at fault). Thus, as between Everen Securities and Paxton, there is no separate fault that could be subject to or give rise to a proportionate credit under chapter 668. It follows, then, that the pro tanto credit rule would apply and any payment made by Everen Securities or Paxton would serve to reduce their joint liability to Clauss to the extent of the payment made. See Jamieson, 532 N.W.2d at 782 (pro tanto credit rule continues to govern where proportionate credit rule of comparative fault statute does not apply).

Because the pro tanto rule would apply in any civil suit brought by Clauss against Paxton, Clauss’s recovery would be reduced by the $40,000 already paid by Pax-ton’s employer as partial satisfaction of Everen Securities and Paxton’s joint liability to Clauss. Since the victim’s pecuniary damages under section 910.1(3) are measured by the amount of the victim’s potential civil recovery and because any civil judgment obtained by Clauss would be subject to a credit for the amount already paid by Paxton’s employer, we conclude Paxton’s obligation for victim restitution under chapter 910 would also be subject to the same credit.

The State has argued that recognition of such a credit is inappropriate because it would frustrate the intent of restitution, which is “to instill responsibility in offenders.” State v. Izzolena, 609 N.W.2d 541, 548 (Iowa 2000). The State also claims Paxton should not be entitled to a credit because he was not a party to the arbitration between Clauss and Everen Securities. The State’s final argument against a credit, apparently premised on the assumption that the arbitration award was paid by an insurer, is that it “would be tantamount to insuring against criminal conduct,” which “is against ... public policy.”

We find these arguments unpersuasive in view of the clear language of the statutory definition of “pecuniary damages,” a definition that expressly ties victim restitution to the amount recoverable in a civil suit. The legislature presumably considered the policy implications of the definition it adopted and reached the legitimate conclusion that the victim of criminal conduct should be entitled to recover no more through the criminal process than the victim could have obtained in a civil action. Cf. Teggatz, 610 N.W.2d at 530 (giving effect to section 910.8 as written, even though the statute may appear to conflict with traditional application of issue preclusion, because that was the decision made by the legislature when it enacted that provision). In fact, rather than maximizing the amount of victim restitution under chapter 910, the legislature actually did just the opposite by eliminating punitive damages and damages for pain, suffering, mental anguish, and loss of consortium from the scope of “pecuniary damages” payable by the defendant as restitution. See Iowa Code § 910.1(3).

We also observe that our interpretation of the statute does not thwart the rehabilitative goals of restitution. Reduction of Paxton’s restitution obligation to Clauss does not eliminate Paxton’s potential liability to his former employer for reimbursement of his employer’s payment to Clauss. See Biddle, 518 N.W.2d at 799 (noting comparative fault act did not disturb “well settled rule that a principal found vicariously hable for the negligent acts of an agent retains a right of full indemnity against the actual tortfeasor”). Nor does the restitution order preclude Clauss from relitigating the amount of his damages in a civil suit against Paxton. Teggatz, 610 N.W.2d at 530-31. Thus, the legislative scheme permits the criminal court to preclude a double recovery by the victim, but does not abolish the offender’s ultimate accountability for the damages caused by his criminal conduct.

We also find no inconsistency in our interpretation of the statute today and our decision in Bonstetter where we disallowed any offset against restitution for monetary claims held by the defendant against the victim. In Bonstetter, the defendant, convicted of converting monies from his employer, sought an offset against the restitution he was ordered to make to his former employer for amounts he claimed his employer owed him for accrued vacation and retirement benefits. 637 N.W.2d at 164. We held the trial court had correctly denied the defendant the claimed offset because the only reduction of the victim’s damages mentioned in the statute was for amounts paid by an insurer. Id. at 167. Our decision was based on an interpretation of a portion of the statutory definition of “pecuniary damages,” specifically the language “ ‘all damages to the extent not paid by an insurer.’ ” Id. (quoting Iowa Code section 910.1(3)).

In contrast, here, our focus is on that part of the definition following the language interpreted in Bonstetter, namely, “which a victim could recover against the offender in a civil action arising out of the same facts or event.” Iowa Code § 910.1(3). As we have already discussed, any damages recoverable in a civil action would be subject to reduction to the extent of payments made to the victim for the same damages. Thus, the prohibition against double recovery, and the consequent credit for payments already received by the victim, is inherent in the statutory measure of recovery. The same cannot be said for the offset sought in Bonstetter, which was based on claims unrelated to the calculation of the victim’s damages.

TV. Application to Present Case.

Although the State argued on appeal that payments such as that made by Pax-ton’s employer should never reduce an offender’s restitution obligation, the district court’s refusal to credit Paxton with the arbitration payment was factually based. In its ruling, the district court acknowledged that this payment may have been based “on some sort of vicarious responsibility” of Everen Securities for the defendant’s conduct, but observed “there may be other reasons not disclosed to the court for this payment unassociated with the defendant.” The problem with the court’s ruling is that Clauss’s testimony at the restitution hearing, along with the defendant’s deposition testimony, shows the award was based on the defendant’s conduct, and no contrary evidence was presented in the record. Thus, the trial court’s decision to deny the defendant a credit for his employer’s payment rested on speculation and not on factual findings that were supported by substantial evidence.

V. Summary and Disposition.

We conclude the uncontroverted evidence in the record established that the arbitration payment made by Everen Securities was based on its vicarious liability for Paxton’s theft from Clauss. Because that payment would serve as a credit against any civil recovery by Clauss against Paxton, the same reduction is warranted in calculating Clauss’s pecuniary damages under chapter 910. The district court erred in failing to make this deduction in its restitution order.

Accordingly, we vacate the court of appeals’ decision and reverse the district court’s restitution order. The case is remanded to the district court for entry of an order requiring Paxton to pay victim restitution in the amount of $227,798, a reduction of $40,000 from the district court’s final order of restitution.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED WITH INSTRUCTIONS.

      . There is no indication in the record that the payment by Everen Securities was in exchange for a release of liability so as to raise the possibility that Paxton's liability was totally extinguished by the arbitration award. Cf. Biddle, 518 N.W.2d at 799 (holding release of tortfeasor physician served to extinguish any further claim against hospital for its vicarious liability since the release satisfied the fault attributable to the tortfeasor and, vicariously, to the hospital).


author: STREIT, Justice.

text:
    STATE of Iowa, Appellee, v. Melvin Ray DALTON, Appellant.
    No. 02-1649.
    Supreme Court of Iowa.
    Jan. 22, 2004.

      Linda Del Gallo, State Apipellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant.
    ■ Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, John P. Sarcone, County Attorney, and Susan Cox and Dan Voogt, Assistant County Attorneys, for appellee.
   STREIT, Justice.

While a passenger in a moving pickup truck, Melvin Dalton repeatedly punched and kicked a man until he fell from the truck to his death. Dalton alleges there was insufficient evidence to support his conviction for vehicular homicide. Dalton also claims his trial counsel was ineffective for failing to challenge (1) alleged defects in the trial information and the minutes of testimony and (2) Iowa Code section 707.6A(2) (2001) as unconstitutionally

vague and overbroad. .Because we find there was substantial evidence to support Dalton’s conviction for vehicular homicide, we reject his sufficiency-of-the-evidence claim. We also determine Dalton’s trial counsel did not fail to perform an essential duty, and conclude Dalton was not denied effective assistance of counsel. We affirm his conviction.

I. Facts and Prior Proceedings

Terry Dalton drove his brother Melvin Dalton in a pickup truck to Gerald Peek’s house in Des Moines. Melvin Dalton got out of the truck and spoke with Peek on his front porch.

Dalton and Peek went back to the truck, and Dalton got in on the passenger side. The passenger door remained open while Peek stood next to the truck. Peek suddenly yelled “They’re ripping me off! They’re ripping me off!” The truck sped away, with Peek lodged half-inside the passenger side of the truck’s cab. As Peek clung to the truck for dear life, Melvin Dalton repeatedly kicked and punched him. The driver, Terry Dalton, also punched Peek. As the truck accelerated, to speeds of approximately thirty-five to forty miles per hour, Peek pleaded for help, his feet dragging along the pavement.

One of Peek’s acquaintances, Tim Burnsworth, got in his car and gave chase. Burnsworth’s car and the truck came into contact.

Melvin Dalton continued to kick and punch Peek until Peek fell from the truck. Witnesses found Peek , on the ground approximately two blocks away from his house. ' He had suffered severe head injuries and was bleeding profusely. He later died as a result of the fall.

Dalton was charged by trial information with vehicular homicide, in violation of Iowa Code section 707.6A(2). The trial information alleged Dalton

committed, aided and abetted in the commission, or jointly committed Homicide by Vehicle by unlawfully and unintentionally causing the death of Gerald Peek by driving.a motor vehicle in a reckless manner with willful or wanton disregard for the safety of persons or property. (A CLASS C FELONY).

Dalton subsequently waived his right to a jury trial and stipulated to the minutes of testimony. The district court adjudged Dalton guilty, finding

Dalton is guilty beyond a reasonable doubt of the crime of homicide by vehicle by aiding and abetting in the conduct that resulted in the death of Gerald Peek. Even though he was not operating the vehicle at the time in question, his conduct was sufficient to constitute aiding and abetting in that he was involved in the actions that resulted in Mr. Peek’s separation from the vehicle while it was being operated under circumstances that the Court has and would conclude were willful and wanton and therefore reckless.

Dalton appeals, alleging there was insufficient evidence to support his conviction for vehicular homicide and he was afforded ineffective assistance of counsel. We now consider each of these arguments, in turn.

II. Sufficiency of the Evidence

In support of his argument that there was insufficient evidence to convict him of vehicular homicide, Dalton points out he did not drive the vehicle, nor did he aid and abet in the driving of the vehicle. He also claims there is insufficient proof he was the proximate cause of Peek’s death; Burnsworth’s actions, he alleges, intervened and broke the causal chain.

A. Standard of Review

Our standard of review in a sufficiency of the evidence challenge is for errors at law. State v. Spies, 672 N.W.2d 792, 796 (Iowa 2003).

The district court’s finding of guilt is binding upon us unless we find there was not substantial evidence in the record to support such a finding. In determining whether there was substantial evidence, we review the record evidence in the light most favorable to the State. Substantial evidence means such evidence as could convince a rational trier of fact that the defendant is guilty beyond a reasonable doubt.

State v. Sutton, 636 N.W.2d 107, 110 (Iowa 2001) (quoting State v. Torres, 495 N.W.2d 678, 681 (Iowa 1993)). In reviewing the record evidence in the light most favorable to the State, “we must consider all the record evidence, not just the evidence supporting guilt.” Id.

B. Merits

The so-called “reckless driving alternative” of Iowa’s vehicular homicide law states:

A person commits a class “C” felony when the person unintentionally causes the death of another by ...
(а) Driving a motor vehicle in a reckless manner with willful or wanton disregard for the safety of persons or property, in violation of section 321.277.

Iowa Code § 707.6A(2)(a); see Sutton, 636 N.W.2d at 110 (characterizing Iowa Code § 707.6A(2)(a) as “the reckless driving alternative” of Iowa’s vehicular homicide law). Iowa Code section 321.277, in turn, states “Any person who drives any vehicle in such manner as to indicate either a willful or a wanton disregard for the safety of persons or property is guilty of reckless driving[, a simple misdemeanor].” Iowa Code § 321.277.

As these two provisions of the Iowa Code and our cases clearly indicate, recklessness, not ordinary negligence, must be proven in order to sustain a conviction for vehicular homicide under section 707.6A(2)(a). See Sutton, 636 N.W.2d at 110-112 (clarifying recent cases to show the reckless driving alternative of Iowa’s vehicular homicide law requires more than ordinary negligence). That is, “the State must prove the defendant engaged in conduct ‘fraught with a high degree of danger,’ conduct so obviously dangerous that the defendant knew or should have foreseen that harm would flow from it.” Id. at 112 (quoting Torres, 495 N.W.2d at 681).

Of course, Melvin Dalton was not the driver of the truck, but a passenger. The State thus pled an aiding and abetting theory, upon which the district court relied in finding Dalton guilty. In order to sustain his conviction for vehicular homicide on an aiding and abetting theory, there must be substantial evidence Melvin Dalton “assented to or lent countenance and approval to the criminal act either by active participation or by some manner encouraging it prior to or at the time of its commission.” Id. (citations omitted)..

Where a passenger, convicted of aiding and abetting vehicular homicide, challenges the sufficiency of the evidence, we follow a two-step analysis. See id. at 112-13 (in determining whether-passenger aided and abetted vehicular homicide, court first considers whether driver acted recklessly before focusing upon passenger’s conduct). First, we must determine whether the driver of the vehicle committed the underlying offense; that is, the driver must have violated Iowa Code section 707.6A(2)(a). See id. Second, there must be sufficient evidence to show the passenger aided and abetted the driver in the commission of the crime; the State must prove “the accused assented to or lent countenance and approval to the criminal act either by active participation or by some manner encouraging it prior to or at the time of its commission.” See id. at 112 (quoting State v. Tangie, 616 N.W.2d 564, 574 (Iowa 2000)).

On appeal, Dalton does not challenge the recklessness of the driver, nor should he; driving a truck with a man partially hanging out of its cab, let alone accelerating the truck to a velocity of thirty-five to forty miles per hour, is surely “ ‘fraught with a high degree of danger,’ conduct so obviously dangerous that the defendant knew or should have foreseen that harm would flow from it.” Id. (quoting Torres, 495 N.W.2d at 681); see, e.g.; State v. Begey, 672 N.W.2d 747, 749-50 (Iowa 2003) (driving car with a man on its hood, accelerating, and slamming on the brakes is reckless). The legislature has, for good reasons, outlawed such behavior, which a civilized society cannot tolerate, no matter how ubiquitous it may appear in movies and on television.

1. Aiding and Abetting

Dalton claims, however, that there is not substantial evidence to show he aided and abetted the reckless driving which resulted in Peek’s unintentional death. Dalton maintains there is no proof he aided and abetted his brother in the driving of the vehicle; driving, he alleges, is an element of the crime for which he was convicted.

The crime at issue, however, is aiding and abetting vehicular homicide, not driving. Therefore, the State need only prove Dalton “assented to or lent countenance and approval to the criminal act [vehicular homicide] either by active participation or by some manner encouraging it prior to or at the time of its commission.” Sutton, 636 N.W.2d at 112. We have explicitly approved of vicarious liability for vehicular homicide. State v. Satern, 516 N.W.2d 839, 842-45 (Iowa 1994). We have also held that one need not drive a vehicle or physically assist the driver in doing so in order to actively participate or encourage a crime which requires operating a motor vehicle at the time of its commission. See, e.g., State v. Storms, 233 Iowa 655, 657, 10 N.W.2d 53, 54 (1943) (encouraging an intoxicated person to drive prohibited).

Viewing the evidence in the light most favorable to the State, we think a rational juror could find Dalton “actively partie-ipat[ed] or by some manner encourage[ed vehicular homicide] prior to or at the time of its commission.” Sutton, 636 N.W.2d at 112. Even though Melvin Dalton was not driving the truck, he actively participated in the commission of the crime. Dalton joined the driver in punching Peek as they went down the road. As the truck reached speeds of thirty-five to forty miles per hour, Dalton punched and kicked Peek until he fell from the truck to his death.

2. Causation

In his next assignment of error, Dalton claims the State failed to prove, beyond a reasonable doubt, that he was a proximate cause of Peek’s death. Dalton contends the evidence suggests Peek’s friend, Burnsworth, caused Peek’s injuries by ramming the truck with his car.

Dalton’s contention that Burns-worth’s actions relieve him of criminal liability is erroneous, for two reasons. First, Dalton’s argument is based upon a view of the facts which is supported by only one witness. The minutes of testimony, upon which Dalton was convicted, contained different and conflicting descriptions of Burnsworth’s actions. Another witness described Burnsworth’s car as being “knocked around” by the truck; police officers were prepared to testify “Melvin Dalton was identified [by witnesses] as striking and/or kicking Peek until Peek fell or was pushed from the truck into the street” (emphasis added); still other witnesses admitted there was contact between the two vehicles, but did not state or imply that the truck caused Peek’s fall. A fact-finder, of course, may choose to believe one witness and not another. State v. McPhillips, 580 N.W.2d 748, 753 (Iowa 1998). Viewing the evidence in the light most favorable to the State, we conclude a rational trier of fact could find Burnsworth’s actions did not contribute to Peek’s death.

Moreover, even if we were to assume Burnsworth rammed the truck, there is no evidence Burnsworth was the sole proximate cause of Peek’s death. “[F]or an intervening act to relieve a defendant of criminal responsibility for homicide, the intervening act must be the sole proximate cause of death.” Begey, 672 N.W.2d at 750 (quoting State v. Garcia, 616 N.W.2d 594, 597 (Iowa 2000)).

In the context of a homicide case, “proximate cause” is a cause which, in a natural and continuous sequence and unbroken by any new and independent cause, produces the injury, without which the injury would not have occurred and from which a person of ordinary prudence could have reasonably foreseen that such a result, or a similar injurious result, was probable under the facts as they existed.... If it appears that the act of the accused was not the proximate cause of the death for which such person is being prosecuted, but that another cause intervened, with which he or she was in no way connected, and but for which death would not have occurred, such supervening cause is a good defense to the charge of homicide.”

40 Am.Jur.2d Homicide §§ 12, 16, at 462, 465 (1999) (emphasis added, footnotes omitted).

We recently rejected an argument similar to Dalton’s in Begey. In Begey, the defendant drove a car with a man on the hood. 672 N.W.2d at 748. The man ultimately hit the ground and died, and the defendant was convicted of vehicular homicide. Id. at 749. On appeal, the defendant claimed there was not sufficient evidence to show she was a proximate cause of the victim’s death, because there was evidence the victim stepped off the car’s hood while it was moving. Id. at 750. We noted, however, that there was conflicting evidence about how the victim ended up on the ground dead: contrary to the defendant’s version of the events, there was substantial evidence she accelerated the car with the victim on the hood and then “slammed on the brakes, throwing [him] off the car hood.” Id. We held the “the jury was free to accept the State’s version.” Id.. Responding to the defendant’s claim that the victim’s actions negated proximate cause and relieved her of criminal responsibility, we also stated, in the alternative, that

[e]ven assuming the victim’s act was an intervening cause of his death, it was not the sole proximate cause because [the defendant] played a significant role in the event. Under Garcia the victim’s actions could not be the sole proximate cause of his death.

Id. (citing Garcia, 616 N.W.2d at 597). The same analysis applies here: just as we rejected the argument in Begey that the victim’s own actions negated proximate cause and thereby relieved the defendant of criminal responsibility, so too must we here reject any contention the actions of a third party, Burnsworth, did the same in this case. The State sufficiently proved Dalton was a proximate cause of Peek’s death. Dalton’s own patently reckless conduct clearly played a significant role in Peek’s death.

III. Ineffective Assistance of Counsel

Dalton also claims his trial counsel was ineffective for failing to challenge (1) alleged defects in the trial information and the minutes of testimony and (2) Iowa Code section 707.6A(2) as unconstitutionally vague and overbroad.

A. Scope of Review

We review ineffective-assistance-of-counsel claims de novo. State v. Stallings, 658 N.W.2d 106, 108 (Iowa 2003). As we stated in State v. Spies,

An ineffective assistance of counsel claim fits within an exception to the general rules of error preservation. Although such claims are, in general, preserved for post-conviction relief, where the record is adequate we will consider the merits of the claim on direct appeal. 672 N.W.2d at 798 (quotation and citations omitted). The record in this case is sufficient for resolution on direct appeal.

B. The Merits

In order to succeed on an ineffective-assistance-of-counsel claim, a defendant must prove each of the following two elements by a preponderance of the evidence: (1) trial counsel failed to perform an essential duty, and (2) this failure resulted in prejudice. Stallings, 658 N.W.2d at 108-09 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). As we stated in Begey,

To meet the first element of the Strickland test, counsel’s performance is measured against the standard of a reasonably competent practitioner with the presumption that the attorney performed his duties in a competent manner. In order to satisfy the prejudice element, the defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different.”

Begey, 672 N.W.2d at 749 (citations omitted). Failure to prove either prong of the Strickland test results in failure of the defendant’s ineffective-assistanee-of-coun-sel claim. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).

1. Trial Information & Minutes of Testimony

Dalton first contends he was denied effective assistance of counsel because his trial attorney failed to file a motion to dismiss after the State filed the trial information, which Dalton claims inadequately specified the crime for which he was charged. In support of his claim, Dalton alleges the trial information only references Iowa Code section 707.6A and does not specify the subsection under which Dalton was ultimately convicted. As a result, Dalton claims he was charged with the wrong offense.

A review of the record reveals, however, that the county attorney did cite a subsection in the trial information: 707.6A(2). To the extent Dalton’s argument should be understood as a complaint that the trial information did not charge Dalton with the paragraph under which he was convicted, 707.6A(2)(a), this would not constitute charging Dalton with the wrong offense; the only possible complaint is that Dalton was not charged specifically enough. The Iowa Rules of Criminal Procedure, however, do not explicitly require the State to charge the defendant with a specific paragraph. Our concern is whether the defendant was “alert[ed] ... generally to the source and nature of the evidence against him.” State v. Lord, 341 N.W.2d 741, 742 (Iowa 1983) (quoting State v. Walker, 281 N.W.2d 612, 614 (Iowa 1979)); see State v. Grice, 515 N.W.2d 20, 23 (Iowa 1994) (“The purpose of an indictment or trial information is to apprise the defendant of the crime charged so that the defendant may have the opportunity to prepare a defense.”). Employing a case-by-case analysis, we must determine whether the trial information and minutes of testimony are specific enough to afford the defendant a “full and fair statement” of a witness’ expected testimony; the State “need not detail each circumstance of the testimony.” See Lord, 341 N.W.2d at 742; see also State v. McConnell, 178 N.W.2d 386, 388 (Iowa 1970) (taking into consideration minutes of testimony in order to remedy supposed defect in trial information); Grice, 515 N.W.2d at 23 (minutes of evidence must also be considered to determine whether defendant is adequately apprised of a charge).

Taking into consideration the minutes of testimony, we hold the trial information is sufficient. When read in conjunction with the minutes of testimony, the trial information clearly indicated which paragraph was involved. Section 707.6A(2) has only two paragraphs, and the latter, 707.6A(2)(&), is wholly unsupported by the minutes of testimony; 707.6A(2)(6) categorizes as a class “C” felony vehicular homicide resulting from eluding the police. Nor is there any indication the defendant was not fully apprised of the charge against him and suffered prejudice as a result. Because any motion to dismiss for lack of specificity in the trial information would have lacked merit, Dalton’s trial attorney did not fail to perform an essential duty, and thus his ineffective assistance claim must be rejected. State v. Liddell, 672 N.W.2d 805, 811 (Iowa 2003).

Dalton further alleges he was denied effective assistance of counsel because his trial attorney failed to object to the minutes of testimony, which he claims were inadequate to support a conviction. Because we rejected Dalton’s sufficiency-of-the-evidence claim, and, in our analysis, considered only the minutes of testimony, we must necessarily reject this argument, as well, for the same reasons.

2. Due Process — Vagueness and Overbreadth

Dalton claims Iowa’s vehicular homicide statute offends due process, because it is unconstitutionally vague and overbroad, both as applied and facially. See U.S. Const. amend XIV; Iowa Const. art. I, § 9 (due process guarantees in federal and state constitutions). As a consequence, he asserts his trial counsel was ineffective for failing to object on these grounds. Because we find Dalton’s underlying constitutional claims lack merit, we conclude his trial attorney did not fail to perform an essential duty and reject his ineffective-assistance claim. See Liddell, 672 N.W.2d at 811.

In support of his claim Iowa Code section 707.6A(2)(a.) is unconstitutionally vague and overbroad, Dalton points out the statute contains words (“unintentionally” versus “willful and wanton”) which seem to give conflicting accounts of the statute’s mens rea requirement. See Iowa Code § 707.6A(2)(u).

A person commits a class “C” felony when the person unintentionally causes the death of another by ...
(a) Driving a motor vehicle in a reckless manner with willful or tuanton disregard for the safety of persons or property, in violation of section 321.277.

Id. (emphasis added). Dalton further contends the statute reaches a substantial amount of protected conduct because it infringes upon Dalton’s “fundamental right to travel in a vehicle.”

In assessing the merits of the arguments underlying Dalton’s ineffective-assistance claim, two important legal principles must be reiterated. First, it should be noted Dalton has “the burden to negate every reasonable basis to sustain” the statute. State v. McNeal, 167 N.W.2d 674, 677 (Iowa 1969). Courts must “give ... any reasonable construction necessary to uphold it.” State v. Hunter, 550 N.W.2d 460, 462 (Iowa 1996). Second, “[a] defendant charged with the violation of a statute has standing to claim the statute is unconstitutionally vague as applied to him or her. A defendant does not necessarily have standing to claim, in addition, that a statute is unconstitutional as applied to others.” Id. at 463 (citations omitted). “[A] facial challenge is permitted if a statute reaches ‘a substantial amount’ of protected conduct.” Id. at 464.

We first consider Dalton’s void-for-vagueness-as-applied claim.

Although we are ... considering only [the defendant’s] vague-as-applied claim, we must still examine the statute “on its face.” In doing so we consider whether [the defendant’s] conduct clearly falls within the proscription of the statute under any construction. The fact the statute may be vague as applied to other factual scenarios is irrelevant to this analysis.

Id. at 465 (citations omitted). As applied, the statute is not vague. We have previously stated “the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Id. at 463 (citing Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983)). In Knight v. Iowa District Court, we stated:

If the statute’s, meaning is fairly ascertainable by reliance on generally accepted and common meaning of words used, or by reference to the dictionary, related or similar statutes, the common law or previous judicial constructions, due process is satisfied.

269 N.W.2d 430, 432 (Iowa 1978). In several cases, we have made clear the mens rea requirement of Iowa’s vehicular homicide statute is recklessness. See, e.g., Sutton, 636 N.W.2d at 110-12 (citing, in part, Torres, 495 N.W.2d at 681) (clarifying recent cases to show the reckless driving alternative of Iowa’s vehicular homicide law requires more than ordinary negligence; “the State must prove the defendant engaged in conduct ‘fraught with a high degree of danger,’ conduct so obviously dangerous that the defendant knew or should have foreseen that harm would flow from it”). Indeed, in State v. Kolbet we upheld the statute against a due process challenge, in which the defendant contended the statute was vague because, he alleged, it failed to state a mens rea requirement. 638 N.W.2d 653, 662 (Iowa 2001). In rejecting Kolbet’s argument, we held “the [statute’s] requirement of a willful or wanton disregard for the safety of others establishes a mens rea element that is essential to a finding of guilt.” Id. In the context of our cases, then, it is clear “unintentional” does not connote strict liability, but rather simply an accidental death, in the sense that it was not the defendant’s aim or purpose; a finding that the defendant did not, in this sense, intend a death does not conflict with a mens rea requirement of recklessness. This conclusion is also supported by similar statutes and reference to the dictionary. Ex Parte Edwards, 816 So.2d 98, 107 (Ala.2001) (because there are few strict liability offenses, “unintentional” in the context of Alabama’s vehicular homicide statute refers to “all forms of mens rea except that described by the word intentional, i.e. knowingly, recklessly, and negligently); Webster’s Third New International Dictionary 11 (2002) (defining, in part, “accident” as “lack of intention”). Because “the statute’s meaning is fairly ascertainable by reliance on generally accepted and common meaning of words used, or by reference to the dictionary ... or previous judicial constructions, due process is satisfied.” Knight, 269 N.W.2d at 432. The statute plainly requires recklessness.

Insofar as Dalton attempts to mount a facial challenge to the so-called “reckless driving alternative” to Iowa’s vehicular homicide statute, the State correctly points out Dalton lacks standing to do so. Reckless operation of a motor vehicle resulting in the unintentional death of another human being does not impact a substantial amount of protected conduct, and therefore Dalton may not challenge the statute facially. See Hunter, 550 N.W.2d at 464. “We have held that where conduct and not merely speech is involved, proof that a statue is overbroad ‘must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.’ ” State v. Brecunier, 564 N.W.2d 365, 369 (Iowa 1997) (quoting State v. Todd, 468 N.W.2d 462, 466 (Iowa 1991)). Because the statute is plainly restricted to reckless and deadly behavior, it cannot plausibly be said to interfere with “a substantial amount of protected conduct.” Hunter, 550 N.W.2d at 464 (quotation and citations omitted). Dalton lacks standing to mount a facial challenge to the statute, and his trial attorney therefore cannot be faulted for failing to present a meritless claim. Id.; Liddell, 672 N.W.2d at 811.

IY. Conclusion

We affirm Melvin Dalton’s conviction for vehicular homicide. Because there was substantial evidence to support his conviction, we reject his sufficiency-of-the-evidence claim. Moreover, we reject his contentions that his trial counsel was ineffective for failing to object to the trial information, minutes of testimony, and the statute as unconstitutionally vague and overbroad, both facially and as applied. These claims lack merit, and, for this reason, Dalton’s trial counsel did not fail to perform an essential duty.

AFFIRMED.

      . To be precise, the State alleged three theories of the case in the district court: namely, that Dalton committed, aided and abetted, or jointly committed vehicular homicide. See State v. Black, 282 N.W.2d 733, 735 (Iowa 1979) (State may charge accomplice as principal; to specify an accomplice theory is unnecessary); State v. Irvin, 334 N.W.2d 312, 315 (Iowa Ct.App.1983).