author: STREIT, Justice.

text:
    STATE of Iowa, Appellee, v. Roger Anthony DOGGETT, Appellant.
    No. 03-0248.
    Supreme Court of Iowa.
    Sept. 1, 2004.
    Rehearing Denied Sept. 30, 2004.

      Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, and Mary E. Tabor, Assistant Attorney General, for appellee.
   STREIT, Justice.

While on the lam for ditching court, Roger Doggett took police on a fast and furious car chase around the Des Moines metro area. He pled guilty to felony eluding, but now claims his trial counsel should not have allowed him to do so because there was not a factual basis for the charge. We agree. We conclude Dog-gett’s trial counsel was constitutionally ineffective, and reverse and remand for further proceedings.

I. Facts and Prior Proceedings

Packin’ nearly 3000 quarters, Roger Doggett and his girlfriend, Shelly Boysel, swaggered into Prairie Meadows Racetrack and Casino shortly after midnight on November 14, 2002. They left Boysel’s six-year-old daughter in the car.

Suspicious, an off-duty police officer hired by the casino asked Doggett and Boysel for identification. Boysel showed the officer her ID and told him she wanted to cash in the loot. Boysel said she had won the quarters at the casino the night before.

Doggett, who had failed to appear for his trial on a burglary charge ten days earlier, did not hand over his ID. Instead, he went back to the car. The officer followed him, and, as he approached, Doggett sped off.

After discovering there was a warrant out for Doggett’s arrest for failure to appear, Altoona police gave chase. Lights flashing and sirens blaring, they followed Doggett west towards Des Moines. Speeds soon reached one hundred miles per hour.

In the midst of the chase, Doggett’s vehicle failed him: a front tire fell off. Undeterred, Doggett drove on the rim of the wheel. Sparks flying as steel ground into the pavement, Doggett nonetheless managed to pass two semitrucks while driving on the shoulder at ninety miles per hour.

The sparks eventually caused Doggett’s car to catch fire. It came to a halt, and Doggett was arrested. Meanwhile, an officer rescued Boysel’s little girl from the back seat. Moments later the area in which she was sitting burst into flames. After the fire was put out, officers found an assortment of burglary tools in the car.

Doggett was charged with a host of crimes, including eluding and child endangerment. See Iowa Code §§ 321.279(3), 726.6(l)(a) (2001). The eluding charge was enhanced to a felony because Doggett had failed to appear for trial on an unrelated burglary charge. See id. §§ 321.279(3), 702.13, 811.2.

Doggett pled guilty to felony eluding, child endangerment, failure to appear, and burglary. He also pled guilty to two counts of theft in the second degree in another case. In exchange, the county attorney agreed to dismiss one count of theft in the third degree and a charge of possession of burglary tools. He also agreed not to file charges in five other cases, which involved the thefts of two pickup trucks, two SUVs, and a Volvo. Doggett agreed, however, to make restitution to the victims in those cases and also promised not to appeal the judgment and twelve-year term of incarceration which would be imposed against him. The court accepted the parties’ bargain, and Doggett went to prison.

Doggett appealed. As a threshold matter, Doggett claimed any purported waiver of his right to appeal was invalid because the trial court did not conduct a colloquy with him; it thus did not ascertain whether his waiver was knowing, voluntary, and intelligent. Doggett further argued his trial counsel was constitutionally ineffective for failing to challenge the felony eluding charge. Doggett claimed the charge lacked a factual basis because he was not “participating in a public offense” when he took police on the chase.

The court of appeals affirmed. First, the court ruled the trial court did not conduct an adequate colloquy with Doggett concerning waiver of his right to appeal. See State v. Loye, 670 N.W.2d 141, 148-49 (Iowa 2003) (colloquy should show waiver of right to appeal was knowing, voluntary, and intelligent); State v. Hinners, 471 N.W.2d 841, 844-45 (Iowa 1991) (same). Second, the court held Doggett’s trial counsel was not ineffective because Dog-gett was, in fact, “participating in a public offense” at the time of the car chase. Relying, in part, upon our decision in State v. Francois, 577 N.W.2d 417 (Iowa 1998), the court concluded failure to appear for trial was a so-called “continuing offense.”

Doggett sought further review. Dog-gett claims the district court erred in determining he was participating in a public offense by virtue of failing to appear for trial ten days before the car chase. Neither Doggett nor the State challenges the court of appeals’ ruling that Doggett did not sufficiently waive his right to appeal. Although we retain the discretion to consider all issues raised in the initial appeal, in this case we let the court of appeals’ decision on waiver stand and, in the exercise of our discretion, decide to only consider Doggett’s ineffective-assistance-of-counsel claim. See State v. Powell, 684 N.W.2d 235, 237-38 (Iowa 2004) (citations omitted) (acknowledging but declining to exercise discretion to consider all issues on appeal); see also Bokhoven v. Klinker, 474 N.W.2d 553, 557 (Iowa 1991) (“[W]e may review any or all of the issues initially raised on appeal ... whether or not they are specifically brought to our attention in the applications for further review.”).

II. Standard of Review

Review of a lack-of-a-factual-basis challenge to a guilty plea is usually on error. See State v. Keene, 629 N.W.2d 360, 363 (Iowa 2001). When, as in the present case, the defendant’s claim is raised in the ineffective-assistance-of-counsel context, our review is de novo. Id.

An ineffective-assistanee-of-coun-sel claim falls within an exception to the general rule that a party must preserve error in the district court. See State v. Spies, 672 N.W.2d 792, 798 (Iowa 2003), cert, denied, - U.S.-, 124 S.Ct. 2820, 159 L.Ed.2d 253 (2004); see also Earnest v. State, 508 N.W.2d 630, 632 (Iowa 1993) (attorneys not expected to object to their own representation). Although ordinarily preserved for postconviction relief, we will consider the merits of such a claim on direct appeal if the record is adequate. State v. Liddell, 672 N.W.2d 805, 809 (Iowa 2003). We deem the record sufficient in this case.

III. Ineffective Assistance of Counsel

To prove ineffective assistance of counsel, a defendant must show by a preponderance of the evidence (1) trial counsel failed to perform an essential duty and (2) prejudice resulted. State v. Dalton, 674 N.W.2d 111, 119 (Iowa 2004).

To meet the first element ..., 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.”

Id. (quoting State v. Begey, 672 N.W.2d 747, 749 (Iowa 2003) (citations omitted)). Failure to prove either element is fatal to an ineffective-assistance-of-counsel claim. See id.

The fighting issue in this case is whether Doggett’s trial counsel failed to perform an essential duty. Doggett claims his trial counsel did not perform an essential duty when he allowed him to plead guilty to a charge for which no factual basis existed. In support of his argument, Doggett points to Iowa’s eluding statute, which states in relevant part:

3. The driver of a motor vehicle commits a class “D” felony if the driver willfully fails to bring the motor vehicle to a stop or otherwise eludes or attempts to elude a marked official law enforcement vehicle that is driven by a uniformed peace officer after being given a visual and audible signal as provided in this section, and in doing so exceeds the speed limit by twenty-five miles per hour or more, and if any of the following occurs:
a. The driver is participating in a public offense, as defined in section 702.13, that is a felony.

Iowa Code § 321.279(3)(a). Section 702.13, in turn, defines “participating in a public offense” as follows:

A person is “participating in a public offense, ” during part or the entire period commencing with the first act done directly toward the commission of the offense and for the purpose of committing that offense, and terminating when the person has been arrested or has withdrawn from the scene of the intended crime and has eluded pursuers, if any there be. A person is “participating in a public offense’’ during this period whether the person is successful or unsuccessful in committing the offense.

Id. § 702.13 (emphasis in original). Dog-gett claims the crime of failure to appear is not a so-called “continuing offense” for statute-of-limitations purposes, and therefore he was not “participating in a public offense” when he eluded officers. The court of appeals agreed with the State and ruled failure to appear is a “continuing offense,” and therefore Doggett was “participating in a public offense” at the time of the car chase. As a consequence, the court ruled Doggett’s trial counsel was not ineffective because a factual basis did exist for felony eluding.

We disagree. Throughout the appellate process, the parties have equated the continuing offense doctrine, which finds its genesis in state statute of limitations and federal sentencing cases, with the “participation in a public offense” language of Iowa Code section 702.13. For this reason, it appears, the court of appeals assumed that if failure to appear for trial is a “continuing offense,” then Powell was “participating in a public offense” at the time of the car chase. While it is tempting to equate the two concepts, one concept does not necessarily follow from the other: the felony eluding statute, Iowa Code section 321.279(3)(a), makes “participation in a public offense” the focus of judicial inquiry, and does not require a court to ask whether the underlying offense is a “continuing offense.” Moreover, the legislature has specifically defined “participating in a public offense” in section 702.13 without referencing the continuing crimes statute or otherwise incorporating the continuing offense doctrine which has developed in cases involving the tolling of the statute of limitations. See id. § 802.7 (continuing crimes statute); State v. Francois, 577 N.W.2d 417, 420-21 (Iowa 1998) (failure to appear to begin a jail sentence as ordered was a continuing offense); cf. Woolsey v. State, 111 Nev. 1440, 906 P.2d 723, 727 (1995). Nor does it reference federal sentencing cases in which similar considerations have been applied. See United States v. Camacho, 340 F.3d 794, 797 (9th Cir.2003); United States v. Green, 305 F.3d 422, 432-33 (6th Cir.2002); United States v. Merino, 44 F.3d 749, 753-54 (9th Cir.1994); United States v. Lopez, 961 F.2d 1058, 1059-60 (2d Cir.1992); United States v. Martinez, 890 F.2d 1088, 1091 (10th Cir.1989); United States v. Gray, 876 F.2d 1411, 1419 (9th Cir.1989). As a consequence, the cases cited by the parties on both sides of the “continuing offense” issue are all distinguishable, and do not enter into our analysis of Iowa’s felony eluding statute.

Justice requires us to apply the plain and unambiguous statutory language of Iowa Code sections 321.279(3)(a) and 702.13 to the facts of this case. Once the illusion of the continuing offense doctrine is pried away and one focuses upon the text of the statute, it is manifest Doggett was not “participating in a public offense” at the time of the car chase by virtue of the fact that he failed to appear for trial on an unrelated charge ten days earlier. The legislature specifically defined “participating in a public offense” as including the period of time beginning with

the first act done directly toward the commission of the offense and for the purpose of committing that offense, and terminating when the person has been arrested or has withdrawn from the scene of the intended crime and has eluded pursuers, if any there be.

Iowa Code § 702.13 (emphasis added). In the present case there is no evidence to suggest Doggett’s participation in the crime of failure to appear did not begin and end ten days before the car chase when he failed to show up for his trial. At that time, one presumes, he was withdrawn from the so-called “scene of the intended crime,” i.e., the courtroom at which he failed to appear, and there were no pursuers. Because it cannot be said that Doggett was “participating” in the crime of failure to appear during the car chase, the court of appeals wrongfully concluded there was a factual basis for the felony eluding charge to which Doggett pled guilty.

The State nonetheless argues we should not find Doggett’s trial counsel constitutionally ineffective because an attorney cannot be faulted for failing to predict future changes in the law. See, e.g., Snethen v. State, 808 N.W.2d 11, 16 (Iowa 1981) (counsel not a “crystal gazer”). In this case, however, there is no change in the law: the statute of limitations and federal sentencing cases are clearly distinguishable, the plain and unambiguous language of the statute lent substantial weight to Doggett’s lack-of-a-factual-basis claim, and no prior cases foreclosed the argument. See State v. Schoelerman, 315 N.W.2d 67, 72 (Iowa 1982).

A normally competent attorney who undertakes to represent a criminal defendant should either be familiar with the basic provisions of the criminal code, or should make an effort to acquaint himself with those provisions which may be applicable to the criminal acts allegedly committed by his client.

Id. at 71-72 (footnote omitted). No reasonably competent practitioner would allow a client to plead guilty in view of the plain language of this statute. See State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996) (“We will find counsel failed to perform an essential duty if defense counsel allows the defendant to plead guilty to a charge for which no factual basis exists and thereafter fails to file a motion in arrest of judgment challenging the plea.”). Importantly, Doggett was clearly prejudiced as a result of his trial counsel’s failure; had counsel raised the issue Doggett could not have been convicted of the crime.

Because Doggett has proved by a preponderance of the evidence that his trial counsel failed to perform an essential duty and prejudice resulted, we conclude his right to counsel was abridged. See Dalton, 674 N.W.2d at 119. We vacate his conviction and remand for further proceedings not inconsistent with this opinion.

IV. Conclusion

Doggett’s trial counsel was constitutionally ineffective for failing to raise a lack-of-a-factual-basis challenge to the felony eluding charge to which he pled guilty. The mere fact Doggett had failed to appear for trial on an unrelated charge ten days earlier did not constitute “participating in a public offense” at the time of the car chase for purposes of Iowa’s felony eluding statute. The decision of the court of appeals on this issue must be vacated, and the district court judgment reversed.

DECISION OF COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED; REMANDED FOR FURTHER PROCEEDINGS.

All justices concur except LARSON, J., who takes no part.

      . Other possible charges in Warren and Marshall Counties were left out of the agreement.

        . Of course, we do not decide whether failure to appear for trial is a continuing offense for statute of limitations purposes.

        Nor are Doggett's subjective intentions in eluding the police relevant here. While Dog-gett’s reckless flight from the casino was no doubt motivated by his knowledge that there was a probably a warrant out for his arrest, this mere fact does not determine whether he was participating in the public offense of failure to appear at the time of the car chase.


source: Caselaw Access Project

author: CARTER, Justice.

license: Public Domain

text:
    In the Matter of the CONDEMNATION OF LAND FOR THE VALLEY VIEW PARK AQUATIC/ROADWAY Project No. 450.390.25.830, Located Generally at 81st Street and Bridgewood Boulevard by the City of West Des Moines, Iowa. City of West Des Moines, Iowa, Appellee, v. Margaret Susan (Mason) Smith, Trustee of the Carroll C. Smith Marital Trust Established Under Paragraph 6 of the Carroll C. Smith Revocable Trust U/A dated November 23, 1994, Margaret Susan (Mason) Smith, Trustee of the Margaret Susan Mason Smith Revocable Trust U/A Dated November 23, 1994, and Margaret Susan (Mason) Smith, as Trustee of the Carroll C. Smith Family Trust Established Under Paragraph 6 of the Carroll C. Smith Marital Trust U/A Dated November 23,1994, Appellants.
    No. 03-1286.
    Supreme Court of Iowa.
    Sept. 15, 2004.
    Mark McCormick of Belin Lamson McCormick Zumbach Flynn, A P.C., Des Moines, and Frank Murray Smith of Frank M. Smith Law Office, Des Moines, for appellants.
    Richard J. Scieszinski and Michael L. Bennett, West Des Moines, for appellee.
   CARTER, Justice.

Margaret Susan Smith, the trustee of three separate trusts, appeals on behalf of all three trusts from an order apportioning the award of the compensation commission in an eminent-domain proceeding. That proceeding involved the taking of lands owned in common by the three trusts. The appellee is the condemner, City of West Des Moines (the city).

Only one of the three trusts was named in the application for condemnation and the notice of public meeting given by the compensation commission. After the commission had rendered its award, the district court concluded that, under Iowa Code section 6B.57 (2003) and the “equitable jurisdiction” conferred on the chief judge by chapter 6B of the Code, the chief judge has authority to apportion the condemnation award among the three trusts in fulfillment of the intent of the condemnation commission. Each of the three trusts appeals from that order. After reviewing the record and considering the arguments presented, we reverse the judgment of the district court and remand the matter to that court for further proceedings.

The three trusts involved in this litigation are described as the Margaret Susan (Mason) Smith Revocable Trust, the Carroll C. Smith Marital Trust, and the Carroll C. Smith Family Trust. These trusts own in common eighty acres of agricultural land. The ownership interest of the revocable trust is 30% thereof, the marital trust 24.6078%, and the family trust 45.3922%.

On February 25, 2003, the city filed an application for condemnation of 5.5 acres of the trusts’ eighty-acre tract. That application named only Margaret Susan (Mason) Smith, as trustee of the Carroll C. Smith Marital Trust, as a property owner. The notice of public meeting of the compensation commission to assess damages identified the property owner in the same manner. Notice of that meeting was served on Margaret Susan (Mason) Smith, as trustee of the Carroll C. Smith Marital Trust. In listing the interests that were being taken, the notice referred to: “Margaret Susan (Mason) Smith, as trustee of the Carroll C. Smith marital trust.” It also named “possible farm lease, tenant unknown, parties in possession, Dallas County, Iowa taxing authority, and all other persons, companies or corporations having any interest in or owning any of the following-described real estate.”

The commission valued the property at $201,000. On the day of the award, the sheriff sent notice of appraisement of damages and time for appeal addressed only to the trustee of the marital trust. Six days later, the city issued a check for $201,000, payable to “Margaret Susan (Mason) Smith, as trustee of the Carroll C. Smith Marital & Family Trust.” This was the first time in the proceeding that the family trust was mentioned, and no mention was made of the revocable trust, which owned a thirty-percent interest in the property.

The trustee refused to accept the check in the form in which it was made payable and requested a new check payable to the trustee of the marital trust only. This action prompted the city to file a request to the chief judge of the district, asking for an apportionment of the commission’s award among the three trusts. In that request, as subsequently amended, the city asserted that payment of the entire award to the marital trust would result in unjust enrichment. It further urged that the court had authority to apportion the award among the three trusts pursuant to the provisions of Iowa Code section 6B.57.

The district court, after hearing evidence, concluded that the trusts would not be prejudiced by apportioning the award. It concluded that “under the unusual circumstances of this case” Iowa Code section 6B.57 and the equitable jurisdiction of the chief judge in condemnation proceedings allows an apportionment of the award according to the respective interests of the three trusts.

In apportioning the commission’s award among the three trusts, the chief judge relied in part on Iowa Code section 6B.57. That statute provides:

If an acquiring agency makes a good faith effort to serve, send, or provide the notices or documents required under this chapter to the owner and any contract purchaser of private property that is or may be the subject of condemnation, but fails to provide the notice or documents to the owner and any contract purchaser, such failure shall not constitute grounds for invalidation of the condemnation proceeding if the chief judge of the judicial district determines that such failure can be corrected by delaying the condemnation proceedings to allow compliance with the requirement or such failure does not unreasonably prejudice the owner or any contract purchaser.

The city contends that apportionment was properly ordered under this statute because it had made a good-faith effort to serve the entities that owned the property sought to be condemned but, despite that effort, failed to provide notice to some of those entities.

The trusts argue that the city’s rebanee on section 6B.57 is unfounded. They note the only means the statute provides to correct an omission of a property owner is an authorization to delay the proceedings in order to allow compliance with the statutory requirements. It does not, they urge, deal with the rights of omitted parties after the commission has made its award.

We are convinced that the trusts argument concerning the inapplicability of section 6B.57 is sound. That statute simply does not apply to the situation that the parties faced. However, the chief judge did not rest his decision entirely on section 6B.57. He also expressed the view that he had equitable jurisdiction and authority to apportion the condemnation award as part of the chief judge’s responsibilities under Iowa Code chapter 6B. The trusts urge that no such authority exists.

We express no opinion as to the extent of a chief judge’s authority to settle the rights of property owners who have been made parties to the condemnation proceeding when other owners have been omitted. We deem it clear, however, that the court was not empowered to use the commission’s award as a baseline from which to determine the rights of omitted parties by a process of interpolation.

Statutes conferring a right of eminent domain are to be strictly construed. Bourjaily v. Johnson County, 167 N.W.2d 6B0, 634 (Iowa 1969); Gilbride v. City of Algona, 237 Iowa 20, 27, 20 N.W.2d 905, 908 (1945); 11 Eugene McQuilhn, Municipal Corporations § 32.19 (2000) [hereafter cited as McQuillin]. An application to condemn land is required to set forth:

The names of all record owners of the different tracts of land sought to be condemned, or otherwise affected by such proceedings, and of all record holders of liens and encumbrances on such lands; also the place of residence of all such persons so far as known to the applicant.

Iowa Code 6B.3.

Although the city views the issue as being whether the individual who serves as trustee of the family trust and revocable trust received notice of the condemnation proceeding, we are convinced that notice of the proceeding only brings before the tribunal those persons named as property owners in the application. The rights of parties with an interest in the condemned property who have not been named in the application as required by statute are unaffected by the proceedings taken. Bourjaily, 167 N.W.2d at 634; Forst v. Sioux City, 209 N.W.2d 5, 7-8 (Iowa 1973); 11A McQuillin § 32.122, at 228. They may act to compel condemnation of their interest by mandamus, or conversely, when they assert their continued rights of ownership, the condemning authority may initiate new condemnation proceedings against the omitted parties. Forst, 209 N.W.2d at 7-8.

The trusts argue that the city’s request to apportion the award was based entirely on section 6B.57. That is not correct. The city clearly raised other issues in its application to the chief judge, including claims of unjust enrichment and other legal attacks on the award. The district court did not consider these issues because it concluded that the dispute could be disposed of on other grounds. Because we find that the grounds upon which the district court acted were improper, we remand the ease for the consideration of the issues that were not considered to the extent they affect the rights of the marital trust. Although the city’s request for relief was cast in the form of a special request to the chief judge, we believe that on remand the matter should be treated as an action for declaratory judgment seeking an interpretation of the commission’s award consistent with applicable law.

We have considered all issues presented and conclude that the judgment of the district court must be reversed and the case remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

All justices concur except LARSON, J., who takes no part.

      . If an appeal had been taken from the commission’s award, the problem of omitted parties could have been cured by ordering that they be made parties to the appeal. Eggleston v. Town of Aurora, 233 Iowa 559, 562, 10 N.W.2d 104, 105-06 (1943). This solution works in that situation because the appeal is a complete trial anew of the valuation issues. The validity of a compensation commission’s award when necessary parties have been omitted, but no appeal has been taken, is an issue of first impression.


author: MAHAN, J.

text:
    William James HAGER, Petitioner-Appellant, v. IOWA DEPARTMENT OF TRANSPORTATION, Respondent-Appellee.
    No. 03-1039.
    Court of Appeals of Iowa.
    May 14, 2004.

      Carter Stevens of Roberts, Cohrt, Stevens & Lekar, P.L.C., Waterloo, for appellant.
    Thomas Miller, Attorney General, and Carolyn Olson, Assistant Attorney General, Ames, for appellee.
    Considered by HUITINK, P.J., and VOGEL and MAHAN, JJ.
   MAHAN, J.

William James Hager appeals a district court ruling affirming a decision of the Iowa Department of Transportation (DOT) that revoked, his .driver’s license for two years. Hager contends the district court erred in denying his application for judicial review. We affirm.

I. Background Facts and Proceedings. Hager was arrested for operating while intoxicated on October 9, 2002. He was initially stopped for speeding. The deputy observed that Hager’s eyes were red and glassy and that there was a strong odor of alcohol inside his vehicle. Hager admitted' he had consumed alcohol. In addition, an open container was observed in' his vehicle. Accordingly, the deputy requested Hager perform field sobriety tests. Hager told the deputy he had problems with his knees but that he could perform the tests. Hager failed several field tests, including the horizontal gaze nystagmus, the walk-and-turn and the one-leg stand. A preliminary breath screening test (PBT) indicated an alcohol concentration of .10 or more. Hager was not allowed to physically see the results of the PBT. However, the deputy may have informed him the PBT indicated that his alcohol concentration was .10 or more.

Hager was read an implied consent advisory and then was asked to submit to- an Intoxilyzer test. He was allowed to call and speak with an attorney. He then refused the test and also refused to sign the implied consent form.

The DOT revoked Hager’s driver’s license on the basis of his refusal to take the Intoxilyzer test. Hager requested a hearing, which was granted. He argued his refusal to submit to the Intoxilyzer test was invalid because he was not allowed to see the results of the PBT. The administrative law judge upheld the revocation. The revocation was affirmed on administrative appeal, and Hager filed a petition for judicial review. The district court denied Hager’s application for judicial review in its entirety. The court found no merit in Hager’s position stating:

There is no statutory requirement or any authority in Iowa case -law that requires that law enforcement provide the results , of the preliminary breath test to the accused. In fact, quite to the contrary, the statute provides that a peace officer may request the operator to provide a sample of the operator’s breath for a preliminary screening test. There is no absolute duty which requires the peace officer to request a preliminary breath test. A preliminary breath test is simply an investigatory device to determine whether or hot an individual has engaged in illegal activity. It is similar to field sobriety tests in that it is subject to error and varying interpretations. Because there is no statutory requirement that the results be shown to the accused, the district court determines that the findings of the administrative agency are supported by substantial evidence and are not arbitrary nor capricious.

Hager appeals.

II. Standard of Review. Our review of the DOT’S decision is governed by Iowa Code chapter 17A and is confined to the correction of errors at law. Iowa Code § 17A.19 (2003); Pointer v. Iowa Dep’t of Transp., 546 N.W.2d 623, 625 (Iowa 1996). In reviewing a district court decision on the validity of an agency action, we decide only whether the district court has correctly applied the law. Litterer v. Judge, 644 N.W.2d 357, 360 (Iowa 2002). The district court itself acts in an appellate capacity to correct errors of law on the part of the agency. Houlihan v. Employment Appeal Bd., 545 N.W.2d 863, 865 (Iowa 1996); Henry v. Iowa Dep’t of Transp., 426 N.W.2d 383, 385 (Iowa 1988). When we review such an action by the district court, we merely apply the standards of section 17A.19(10) to determine whether our conclusions are the same as those of the district court. Litterer, 644 N.W.2d at 360. If the conclusions are the same, we affirm; otherwise we reverse. Downing v. Iowa Dep’t of Transp., 415 N.W.2d 625, 627 (Iowa 1987).

The burden of proof in an administrative license proceeding is totally on the licensee. Scott v. Iowa Dep’t of Transp., 604 N.W.2d 617, 620 (Iowa 2000). We will uphold the agency’s action if supported “by substantial evidence in the record before the court when that record is viewed as a whole.” Iowa Code § 17A.19(10)(f). Evidence is substantial when a reasonable person-could accept it as adequate to reach the same findings. Pointer, 546 N.W.2d at 625.

III. Revocation of Driver’s License.

Iowa Code section 321J.5 (2001) provides the requirements for the use of a preliminary screening test:

1. When a peace officer has reasonable grounds to believe that either of the following have occurred, the peace officer may request that the operator provide a sample of the operator’s breath for a preliminary screening test using a device approved by the commissioner of public safety for that purpose:
(a) A motor vehicle operator may be violating or has violated section 321 J.2 or 321 J.2A.
2. The results of this preliminary screening test may be used for the purpose of deciding whether an arrest should be made or whether to request a chemical test authorized in this chapter, but shall not be used in any court action except to prove that a chemical test was properly requested of a person pursuant to this chapter.

In addition, section 321J.6(1) provides the prerequisite conditions that must exist before an officer may invoke implied consent:

A person who operates a motor vehicle in this state under circumstances which give reasonable grounds to believe that the person has been operating a motor vehicle in violation of section 321J.2 or 321J.2A is deemed to have given consent to the withdrawal of specimens .... The withdrawal of the body substances and the test or tests shall be administered at the written request of a peace officer having reasonable grounds to believe that the person was operating a motor vehicle in violation of section 321J.2 or 321J .2A, and if any of the following conditions exist:
(a) A peace officer has lawfully placed the person under arrest for violation of section 321 J.2.
(d) The preliminary breath screening test was administered and it indicated an alcohol concentration equal to or in excess of the level prohibited by section 321J.2.

Hager challenges the revocation of his license. He argues an officer is required, as a condition precedent to implied consent, to provide PBT results to an individual. This would then allow that individual to make an informed decision on whether or not to provide a breath sample. This is the only issue raised on appeal. Although Hager challenged the reasonable grounds determination before the agency, and also

before the district court, he has not raised this as a separate issue on appeal. Although unnecessary to the resolution of the issue Hager raises, we conclude the reasonable grounds requirements of both code sections were met.

Hager was arrested and asked to submit to an Intoxilyzer test pursuant to Iowa Code sections 321 J.6(l)(a) and (d). He refused to submit to the test, and his license was revoked. See Iowa Code § 321J.9. The surrounding circumstances, including the statements and conduct of the arrestee and police officer, are considered in determining whether a chemical test has been refused. Ferguson v. Iowa Dep’t of Transp., 424 N.W.2d 464, 466 (Iowa 1988). Anything less than an unqualified, unequivocal consent is a refusal. Id.

We note the deputy’s refusal to visually show Hager the PBT results is of no consequence in this case because Hager was lawfully arrested and refused the In-toxilyzer test. The fact of his arrest, in and of itself, provides an independent basis to uphold his revocation under Iowa Code section 321J.6(l)(a).

Although we believe Hager’s claim fails for that reason, we briefly mention the administration of a PBT. Section 321J.5(1) permits, but does not require, an officer to request a PBT for use as an early screening device. State v. Albrecht, 657 N.W.2d 474, 479 (Iowa 2003). A PBT is a “quick, convenient test,” to assist an officer in determining whether an arrest should be made. State v. Deshaw, 404 N.W.2d 156, 158 (Iowa 1987). There is no statutory requirement, nor any authority in Iowa case law, requiring law enforcement to provide PBT results to an individual.

Hager cites no authority in support of his claim that an individual must be provided results of a PBT before deciding whether or not to agree to implied consent procedures. Instead, his argument is based on supposed public policy principles. We find his argument unpersuasive. We agree with the district court that a PBT is legislatively intended simply as a preliminary investigatory device for use by peace officers to help determine if an individual has engaged in illegal activity and an arrest should be made. Peace officers are under no duty to visually reveal or verbally inform an individual of the results of a PBT. To rule otherwise would negate the legislative intent that a PBT serve as a “quick, convenient test.” We specifically hold that a peace officer is not required, as a condition precedent to implied consent, to provide PBT results to an individual.

AFFIRMED.

      . Hager claims he consumed 26 ounces of beer.

      . At the time Hager was arrested, operating under the influence of alcohol required an alcohol concentration of .10 or more. Iowa Code § 321J.2 (2001).


author: SACKETT, C.J.

text:
    In re the MARRIAGE OF Tanya MALLOY and Robert Malloy Upon the Petition of Tanya Malloy, Petitioner-Appellee, And Concerning Robert Malloy, Respondent-Appellant.
    No. 03-1282.
    Court of Appeals of Iowa.
    May 14, 2004.

      Constance Stannard of Johnston & Na-thanson, P.L.C., Iowa City, for appellant.
    James McGrath of McGrath & McGrath, P.C., Keosauqua, and Thomas Murphy of Hopkins & Huebner, P.C., Des Moines, for appellee.
    Thomas J. Miller, Attorney General, Ann Marie Brick, Special Assistant Attorney General, and Kevin Kaufman, Assistant Attorney General, for the State.
    Heard by SACKETT, C.J., and HUITINK and MILLER, JJ.
   SACKETT, C.J.

Appellant Robert Malloy and appellee Tanya Malloy petitioned seeking modification of the custodial provisions of their July 2001 dissolution decree. They both contended there had been a substantial change of circumstances and they should be named primary physical custodian of their two daughters. The district court found no substantial change of circumstances, denied both of their petitions, and made certain modifications to the custodial provisions of the decree that were not requested by either party. Robert has appealed, contending (1) he proved the required change of circumstances to support a modification granting him primary physical care of both daughters, (2) after finding there was no change in circumstances the district court should not have modified custody, (3) the district court did not correctly calculate child support, and (4) the amount of a judgment in favor of the State should be modified. Tanya contends the district court should be affirmed. We affirm the award of joint custody, but modify to name Robert as primary physical custodian of both children and to establish Tanya’s visitation. The State agreed to modification of its judgment, and we modify it accordingly. We reverse the child support award in favor of Tanya and remand to the district court to establish her child support obligation.

Robert and Tanya’s daughters, Kylea and Katie, were born in August of 1997 and December of 1998. At the time of the dissolution the custodial issues were resolved by the parties’ stipulation which was approved by the court and made a part of the decree. The parties were to have joint legal custody and physical care of the children. Robert would have primary physical care of Katie and Tanya would have primary physical care of Kylea. Kylea would visit in Robert’s home on odd-numbered weeks and Katie would visit with Tanya in even-numbered weeks. The result was that the children were together in each parent’s home every other week. Robert was ordered to. pay Tanya $57.10 a month as child support.

Robert first became' disillusioned with the arrangement and petitioned seeking primary physical care of both the girls and child support from Tanya. Tanya answered contending that Robert’s petition should be dismissed, she should be named primary custodian of both children, and Robert should pay increased child support. After hearing the evidence the district court found:

Both parties have failed to establish by a preponderance of the evidence that conditions since the July 23, 2001, decree have so materially and substantially changed that the children’s best interest made it expedient to modify the award of shared physical care. Neither party has demonstrated a superior claim to minister to the needs of the children more effectively. Tanya and Robert shall have joint physical care of the children.

The court then found it was disruptive for the children to change homes every week and modified the decree to provide the children should change homes every other week and went on to establish a child support award in Tanya’s favor in the amount of $120 a week.

Robert first contends he should have primary physical care of both of his daughters. He contends he has shown the required change of circumstances. He contends both parties have acknowledged the current care arrangement is not working. He contends he has shown substantially more stability since the dissolution decree was entered than has Tanya, who has had frequent moves and job changes. He further contends that Tanya’s election to move a man named Danny into her home has created a bad influence on the children and that Danny has interfered with communications between Robert and Tanya on issues involving the children. He also contends Tanya puts the children at risk by smoking while the children are in the house and the car. He further points out that a part Saint Bernard and part Rottweiler dog that lives in Tanya’s home presents a risk to the children.

We review de novo. Iowa R.App. P. 6.4. Prior cases have little prec-edential value, and we must base our decision primarily on the particular circumstances of the parties presently before us. In re Marriage of Kleist, 538 N.W.2d 273, 276 (Iowa 1995). We give weight to the trial court’s findings of fact, but we are not bound by them. Iowa R.App. P. 6.14(d )(g). Courts are empowered to modify the custodial terms of a dissolution decree only when there has been a substantial change in circumstances since the time of the decree not contemplated by the court when the decree was entered, which is more or less permanent and relates to the welfare of the child. Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct.App.2002); Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct.App.1996). The parent seeking to change the physical care from the primary custodial parent to the petitioning parent has a heavy burden and must show the ability to offer superior care. Melchiori, 644 N.W.2d at 368; In re Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa Ct.App.1998). This is the burden Robert bears in seeking primary care of Kylea. However, Robert was granted primary physical care of Katie. He was granted her primary care in the decree, so actually he is seeking to decrease the visitation time Katie spends with her mother.

We first address Robert’s contention the district court should have awarded him primary physical care of both children.

Robert has primary physical care of Katie. He actually was only seeking to modify Tanya’s visitation with the child. Tanya had primary physical care of Kylea and Robert sought the modification to grant him primary physical care. The burden to change a visitation provision in a decree is substantially less than to modify custody. In re Marriage of Wersinger, 577 N.W.2d 866, 868 (Iowa Ct.App.1998); In re Marriage of Jerome, 378 N.W.2d 302, 305 (Iowa Ct.App.1985). Under the unique facts here we require Robert to meet the burden required for a change of custody as to - both girls. That is, he must show both that there has been a substantial change in circumstances and he can render superior care.

The district court, while leaving the children in joint physical care, actually found changed circumstance sufficient to modify the primary care. The court placed the children in Tanya’s physical care for two weeks and Robert’s physical care for two weeks reasoning it was disruptive for the children because of impending school schedules. We agree with this finding to the extent the parties both recognized the current situation was not working well. We have considered as evidence showing changed circumstance the fact the shared custody provisions agreed to by the parties and incorporated into their decree did not evolve as envisioned by either of the parties or the court. See Dale, 555 N.W.2d at 245.

Additionally the presence of Danny in Tanya’s home is' a changed .circumstance. That said we address Robert’s argument that Danny’s presence in Tanya’s home is not in the children’s interests. If a parent seeks to establish a home with another adult, that adult’s background and his or her relationship with the children becomes a significant factor in a custody dispute. In re Marriage of Decker, 666 N.W.2d 175, 179 (Iowa Ct.App.2003). The companion will have an impact on the children’s lives, and the type of relationship the parent has sought to establish and the manner in which he or she has established it is an indication of the parent’s priorities. See id. Robert has legitimate concerns about the children living in a home with Danny and with Danny caring for them alone as he does on occasion. Danny has been in drug treatment, was arrested for driving while under the influence, and continues to drink. Although other than his arrest for driving while intoxicated there is no other evidence his drinking has caused a problem, the use of alcohol after treatment for drug abuse is a matter of serious concern. Danny also does not have a current driver’s license. He has a daughter by a prior marriage and is behind in his child support to her. On the positive side Danny has a relationship with his daughter and she visits several times a month in the home Danny occupies with Tanya. Danny is employed as a heavy equipment operator and contributes financially to the operation of the home.

Robert and Danny have problems communicating. Robert places the communication problems on Danny and Danny places them on Robert. We note however, that both Tanya and Robert agreed they had few problems in communicating until Danny became involved. While the district . court did not find these problems have risen to the level that it justified the change in custody Robert sought, we do not minimize them. Tanya has a responsibility to assure she has good communications with Robert on issues that concern the children and that Danny does not interfere with these communications, just as Robert has a responsibility" to assure he maintains the line of communications with Tanya on issues concerning the children. If Danny is, as some of the evidence may show, interested in inciting trouble with Robert, Tanya has • an obligation to see that Danny does not interfere with Robert’s relationship with the children. See In re Marriage of Crotty, 584 N.W.2d 714, 716 (Iowa Ct.App.1998). Discord between parents that has a disruptive effect on children’s lives has been held to be a substantial change of circumstance warranting modification of a custody decree. See In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct.App.1998). Robert has shown a substantial change of circumstances.

We next address whether he has shown he can render superior care. See id. Robert continues to live in the same house where he has lived for five years. Other than the time the children are with him, he lives alone. Robert was honorably discharged in 1998 after fdur years in the Marine Corps. Since that time he has worked for thé same employer. He has parents and a brother and sister-in-law with whom he is close living in the area. Tanya’s employment and living arrangements have changed several times since the parties’ separation. She has allowed Danny to interfere with her communication with Robert concerning the children’s interests. She filed a cross-claim contending the agreed upon situation was not working well.

We disagree with the district court that the evidence does not support a substantial change of circumstances such as would support transferring primary physical care of both girls to Robert and we modify the decree accordingly.

We establish Tanya’s visitation as that which the parties can agree on. If they cannot agree then she shall have visitation with both children on the first and third weekends of each month from 6 o’clock Friday evening until 6 o’clock Sunday evening. She shall further have the children for four full consecutive weeks during the period 'from June 10 to August 15 of each year. She shall give Robert a written or oral notice as to her designation of the summer visitation period no later than thirty days in advance of the period. She shall have both of the children in odd-numbered years on Easter Day, Thanksgiving Day and New Years Day from 5 o’clock on the previous day and terminating at 7:30 the evening of the holiday and on each child’s birthday in odd-numbered years. She shall have the children on Mother’s Day from 6 o’clock on Saturday evening until 6 o’clock Sunday evening even if it does not fall within her scheduled weekend visits. She shall have the children on her birthday. The children should be returned to Robert by 9 o’clock in the morning of Father’s Day and his birthday even if these dates fall during Tanya’s visitation time.

Having decided Robert should have primary physical care of both children we need not address his contention that the district court should not have done away with the primary physical care arrangement and modified it to have the children change homes every two weeks. Robert argues the district court found no substantial change of circumstances and noted neither party originally asked for the modification the district court made.

Robert next challenges .the fixing of child support. We remand to the district court to establish child support based on the new custodial arrangement but we first need to decide if the district court correctly established support based on Tanya’s decreased earnings. The court determined Robert was paying Tanya child support of $57.18 a month based on Tanya earning an annual wage at the time of the dissolution of $15,600 and Robert earning an annual wage at the time of the dissolution of $23,040. The court found at the time of the modification hearing Tanya only earned $9,000 a year and Robert earned $32,123.

Robert contends Tanya is only working twenty-four hours a week and she should not be allowed to benefit from a voluntary reduction of her income. We agree. When a parent voluntarily reduces his or her income or decides not to work, it may be appropriate for the court to consider earning capacity rather than actual earnings when applying the child support guidelines. In re Marriage of Nelson, 570 N.W.2d 103, 106 (Iowa 1997); State ex rel. Hartema v. Cottrell, 513 N.W.2d 765, 768 (Iowa 1994); State ex rel. Lara v. Lara, 495 N.W.2d 719, 721-22 (Iowa 1993). Before using earning capacity rather than actual earnings a court must, however, make a determination that, if actual earnings were used, substantial injustice would occur or adjustments would be necessary to provide for the needs of the children and to do justice between the parties. Nelson, 570 N.W.2d at 106; see also In re Marriage of Bergfeld, 465 N.W.2d 865, 870 (Iowa 1991); In re Marriage of Flattery, 537 N.W.2d 801, 803 (Iowa Ct.App.1995). We examine the employment history, present earnings, and reasons for failing to work a regular work week when assessing whether to use the earning capacity of a parent. Nelson, 570 N.W.2d at 106; State ex rel. Gonzales v. Gable, 474 N.W.2d 581, 583 (Iowa Ct.App.1991).

There is no evidence Tanya is not able to find full-time work at a wage similar to what she was earning at the time of the dissolution nor is there evidence she is unable to work full time. Therefore in assessing her child support obligation the district court should consider her income at what she could earn for full-time work unless other factors which would justify a lower earning capacity have come into existence since the modification was tried.

The next issue involves a judgment the district court entered against Robert in the amount of $918 for public assistance benefits paid on behalf of the children. The State has filed a statement with this court agreeing the amount of the judgment should be reduced by $228.72, and we accordingly modify the judgment by decreasing it that amount.

Both parties have requested appellate attorney fees. We award none. Costs on appeal are taxed one-half to each party.

AFFIRMED IN PART AS MODIFIED, REVERSED IN PART, AND REMANDED.

      . Robert argued the modification changes the party’s initial decision that they each have primary custody of one child so they each would qualify as head of a household and each pay child support for one child.


author: ZIMMER, J.

text:
    Leann STEWART, Plaintiff-Appellant, v. Scott V. STEWART, Defendant-Appellee.
    No. 02-1691.
    Court of Appeals of Iowa.
    May 14, 2004.
    David Strand of Strand & Riker Law Office, Decorah, for appellant.
    Richard Stochl of Elwood, O’Donohoe, O’Connor & Stochl Law Office, New Hampton, for appellee.
   ZIMMER, J.

Plaintiff Leanne Stewart appeals following the district court’s entry of a “Protective Order by Consent Agreement.” She contends the consent order is invalid because she did not agree to its entry. She also contends the court erred when it denied her request to offer evidence in support of her petition for relief from domestic abuse, and in failing to make a finding regarding the issue of domestic abuse. Because we conclude the protective order was not entered in compliance with Iowa Code chapter 236 (2001), we vacate the order and remand this matter to the district court for further proceedings.

Leann filed a chapter 236 petition for relief from domestic abuse. In her petition, she alleged her husband, Scott Stewart, threw a water pitcher at her while she was in bed, kicked her out of bed, dragged her outside in her underwear, slammed her against a brick pillar, and locked her out of the parties’ marital home. She alleged her husband broke her glasses and that his actions caused bruising and fabric burns on her body. After reviewing the petition, a district court judge entered a temporary protective order, and set a hearing to determine if the order should be made permanent. See Iowa Code §§ 236.3, .4.

The matter came on for hearing before the Honorable John Bauercamper. The parties appeared personally and were represented by counsel. Before any evidence was taken, the court asked whether the parties would be willing to enter into a consent decree. Scott stated he was willing to enter into a consent agreement, but Leann rejected that option.

After Leann rejected the entry of a protective order by consent agreement the district court stated,

I do believe that a party can ask for a Consent Decree on the no contact and abuse provision of the Order without consent of the other party and without agreement on collateral issues like child custody, and child support, and other collateral issues of that sort.

The court further stated,

One of the reasons I believe that a defendant has a right to enter into a Consent Decree if he wants to, is because of the federal sanctions that can be imposed against a defendant upon adjudication of a domestic abuse. And I believe that the defendant has a right to prevent those federal sanctions being imposed against him by entering into a Consent Decree if he wishes, those particularly being the Federal Firearms Provisions....

The court provided both parties with a draft of a consent order. The order restricted Scott’s contact with Leann and granted her possession of the parties’ home. The order did not contain a finding that domestic abuse occurred, or that Scott posed a credible threat to Leann.

Leann objected to the order. She asserted that the consent of both parties was required before a consent decree could be entered in a proceeding brought under chapter 236. She also requested the opportunity to offer testimony in support of her petition so the court could make specific findings regarding the issue of domestic abuse. The court denied Leann’s request to offer evidence and entered a “Protective Order By Consent Agreement.” The order noted Leann’s objection, but concluded she “had no legal standing to object to the entry of the consent order, because it granted her all of the relief requested in her petition.” Leann appeals.

The district court concluded that a permanent protective order by consent agreement can be entered pursuant to Iowa Code section 236.5 over the objections of the protected party, and without taking evidence, so long as the defendant agrees to its entry. We disagree. Section 236.5 provides, “Upon a finding that the defendant has engaged in domestic abuse: ... 2. The court may grant a protection order or approve a consent agreement....” Under the plain language of the statute, a consent order requires the agreement of the relevant parties. See Black’s Law Dictionary 67 (7th ed.1999) (defining “agreement” in relevant part as a “mutual understanding between two or more persons); see also Iowa Court Rule 4.3 (containing mandatory form for a protective order by consent agreement, which provides that “[t]he parties appeared and consented to the entry of this order”) (emphasis added). Because Leann did not agree to the entry of a consent order, the protective order in this case is not an approval of a “consent agreement” as contemplated by section 236.5.

In the absence of an actual consent agreement, it was not appropriate for the district court to enter a consent order. The court should have granted Leann’s request to offer evidence in support of her petition and then made appropriate findings regarding whether or not Scott had engaged in domestic abuse. See Iowa Code §§ 236.2, .5. Because the district court’s order does not comply with chapter 236, we vacate the order and remand this matter for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

      . It appears Leann sought findings that would allow her to invoke further protections emanating from federal firearms sanctions. See 18 U.S.C. § 922(g)(8) (restricting possession of firearms by one subject to a domestic protection order, if certain criteria are met).

      . As previously noted, the district court based its decision to enter a consent decree, at least in part, on its belief Scott had a right to avoid the federal firearm sanctions Leann hoped to invoke. This belief was held in error. The court's decision to enter a protective order, and the form of the order it enters, should be based only upon the facts of the case as applied to the statutory requirements. It should not depend upon the existence of federal firearm sanctions, the protected party’s wish to invoke them, or the defendant’s wish to avoid them.


author: /a/ Alan C. Page Associate Justice

text:
    David J. GANFIELD, Relator, v. CITY OF RICHFIELD, Self-Insured, Administered by Berkley Risk Administrators Company, and City of Apple Valley, Self-Insured, Administered by the League of Minnesota Cities Insurance Trust Workers’ Compensation Plan, Respondents.
    No. A04-1162.
    Supreme Court of Minnesota.
    Sept. 29, 2004.
    James E. Lindell, Lindell & Lavoie, L.L.P., Minneapolis, for relator.
    Leslie M. Altman, David M. Bateson, Rider Bennett, L.L.P., Minneapolis, for respondent City of Richfield.
    Thomas M. Peterson, St. Paul, for respondent City of Apple Valley.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed May 24, 2004, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

BY THE COURT

/a/ Alan C. Page Associate Justice


author: /s/ Paul H. Anderson Associate Justice

text:
    In re Petition for REINSTATEMENT to the Practice of Law of Brian Andrew LETT, a Minnesota Attorney, Registration No. 286849.
    No. C1-02-78.
    Supreme Court of Minnesota.
    Sept. 30, 2004.
   ORDER

On February 12, 2002, this court indefinitely suspended petitioner Brian Andrew Lett from the practice of law for a minimum of six months.

Petitioner filed a petition for reinstatement on September 13, 2003. A hearing on that petition was held on May 4, 2004, before a' Panel of the Lawyers Professional Responsibility Board. The Panel recommended that petitioner’s petition for reinstatement be denied.

Petitioner has neither ordered a transcript of the Panel hearing nor indicated any intention to seek review of the Panel’s recommendation by this court.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the petition of Brian Andrew Lett for reinstatement to the practice of law in the State of Minnesota be, and the same is, denied.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice


author: /s/ Kathleen A. Blatz Chief Justice

text:
    Anita S. TILLEMANS, Relator, v. PIERCE COMPANY OF MINNEAPOLIS, INC., and Mutual Insurance Corporation, n/k/a APCapitol, Respondents, and Park Nicollet Hospital, Intervenor.
    No. A04-1205.
    Supreme Court of Minnesota.
    Oct. 7, 2004.
    Anita Tillemans, pro se.
    Brian P. Thompson, Koll, Morrison, Charpentier & Hagstrom, St. Paul, for respondents.
    Kris Witwer, Stewart, Zlimen & Jun-gers, Minneapolis, for intervenor.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed June 2, 2004, be, and the same is, affirmed without opinion. See Hojf v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

BY THE COURT:

/s/ Kathleen A. Blatz Chief Justice