author: SANDSTROM, Justice.

text:
    2006 ND 215
    Danny R. LIVINGGOOD, Plaintiff and Appellee, v. Aaron BALSDON, Defendant and Appellant.
    No. 20060130.
    Supreme Court of North Dakota.
    Oct. 17, 2006.

      Cameron D. Sillers, Cameron D. Sillers, P.C., Langdon, N.D., for plaintiff and ap-pellee.
    Neil W. Fleming, Fleming, DuBois & Fleming, P.L.L.P., Cavalier, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Aaron Balsdon appeals the district court’s judgment on remand awarding Danny Livinggood treble damages based on one year of anticipated lost profits for forcibly ejecting Livinggood from the farm property he was leasing from Balsdon. We affirm.

I

[¶ 2] In February 2003, Living-good entered into a five-year farm lease with DeWayne Balsdon. Livinggood farmed the land under the lease for one year, made the lease payment in advance for the next farm year, and prepared the land in the fall of 2003. In April 2004, Aaron Balsdon purchased the farmland from his uncle, DeWayne Balsdon. After Livinggood began work in the spring, Aaron Balsdon twice drove in front of Liv-inggood’s tractor, told him the lease was invalid, and threatened to call law enforcement. On both occasions, Livinggood or his son stopped working and left the property. Livinggood then sued Aaron Bals-don to enforce the lease, claiming damages from his lost profits, and claiming, in the alternative, triple damages for Bals-don’s forcible exclusion of Livinggood from the leased land. The district court found Livinggood held a valid lease to farm the land. The district court awarded Livinggood damages based on one year of lost profits plus court costs, $15,106.92 in total, stating any other damages would be too speculative and too difficult to ascertain. The district court did not allow Liv-inggood to continue farming under his lease, nor did the court grant triple damages for forcible exclusion from the property. Livinggood appealed. In Livinggood v. Balsdon, 2006 ND 11, ¶¶ 7-9, 709 N.W.2d 723, this Court agreed with the district court that Livinggood could no longer enforce the lease because money damages were adequate to compensate him. We remanded the case because the district court made no findings on damages under the correct legal standard for forcible ejectment or exclusion from real property. Livinggood, at ¶¶ 10-11.

[¶ 3] On remand, the district court concluded that “[wjhile the force may not have been actually applied it was clearly threatened.” Furthermore, the district court concluded:

[Livinggood] made several attempts to resolve this which [Balsdon] ignored. [Livinggood] testified he felt compelled to tell his son to leave to avoid a big fight. His impression clearly was physical force or force of some kind would follow if they failed to leave the property. There was also a threat to call the police.
All of these facts combined indicate the defendant did forcibly eject the plaintiff from the property....

Consequently, the district court awarded Livinggood treble damages, using its original damage calculation of lost profits for one year, multiplied by three, plus court costs. Balsdon now appeals that judgment.

[¶ 4] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. § 27-02-04 and §§ 28-27-01 through 28-27-02.

II

[¶ 5] Balsdon impliedly argues that the district court should have held a hearing on remand. Livinggood argues that not having a hearing on remand was within the district court’s discretion because this Court did not explicitly require one. In Kautzman v. Kautzman, we addressed the issue of conducting hearings on remand:

When this Court specifies a defect to be cured and remands for redetermination of an issue without specifying the procedure to be followed, the trial court need only rectify the defect in a manner consistent with our opinion and conformable to law and justice.... Thus, when we reverse and remand for a trial court to address an issue ... unless otherwise specified, the trial court may decide based on the evidence already before it or may take additional evidence. The decision on taking additional evidence will be reversed only if the trial court abused its discretion.

2000 ND 116, ¶ 7, 611 N.W.2d 883 (internal citations omitted).

[¶ 6] In this case, we remanded “with directions to consider the issue of treble damages under N.D.C.C. § 32-03-29 and the standard set out in Wegner [v. Lubenow, 12 N.D. 95, 95 N.W. 442 (1903)].” Livinggood, 2006 ND 11, ¶ 11, 709 N.W.2d 723. The district court heard all the testimony relating to damages and the actions of the parties in the original proceeding. The final judgment consisted of multiplying the original one-year lost-profit figure by three. Neither Wegner nor N.D.C.C. § 32-03-29 requires a hearing. Balsdon admits in his brief that although he disagrees with the facts found by the district court, “there was a sufficient basis for the trial court to have found those facts from the evidence at trial.” Therefore, the district court did not abuse its discretion by not holding a hearing on remand.

Ill

[¶ 7] Balsdon argues that his actions to prevent Livinggood from farming under the lease did not amount to forcible ejection, because Livinggood failed to prove he feared physical force from Balsdon or law enforcement. Balsdon also argues that he never deceived Livinggood in any way and that deception is necessary for forcible ejectment. Balsdon argues that because Livinggood produced no evidence of forcible ejectment, the award of treble damages should not stand. Livinggood claims he feared physical force from both Balsdon and law enforcement because, upon such a threat, one assumes law enforcement may necessarily use force to remove a person from the land. Livinggood argues it was that fear that caused him to leave the property.

[¶ 8] Forcible ejectment or exclusion from real property is a conclusion of law because “that determination describes the legal effect of the underlying factual circumstances.” See Diocese of Bismarck Trust v. Ramada, Inc., 553 N.W.2d 760, 768 (N.D.1996) (internal citation omitted). We apply a de novo standard of review to a district court’s conclusions of law. H-T Enterprises v. Antelope Creek Bison Ranch, 2005 ND 71, ¶ 6, 694 N.W.2d 691.

[¶ 9] Section 32-03-29, N.D.C.C., provides the tort of forcible ejectment or exclusion from real property:

For forcibly ejecting or excluding a person from the possession of real property, the measure of damages is three times such a sum as would compensate for the detriment caused to the person by the act complained of.

A district court must award treble damages if it concludes that one person forcibly ejected or excluded another from real property. N.D.C.C. § 32-03-29. First, the district court must analyze the ejecting party’s conduct and surrounding circumstances to determine whether there was sufficient evidence that the possessor apprehended fear and that fear caused the possessor to leave. Wegner, 12 N.D. at 105, 95 N.W. at 446. Second, upon the conclusion of forcible ejectment supported by its findings of fact, the district court shall apply the measure of damages under N.D.C.C. § 32-03-29. That code section was taken from David Dudley Field’s Code and adopted decades before North Dakota became a state. Hon. Robert Vogel, Looking Back on a Century of Complete Codification of the Law, 53 N.D. L.Rev. 225, 235 (1976) (“[W]e must recognize that they gave to the sparsely settled wilderness of Dakota an instant body of law, up-to-date and reasonably adaptable to immediate use. There simply was not time to develop a body of law by common-law methods, and the choice appeared to be between codification or anarchy and vigilante justice.”). Because this law is punitive in nature, it provides an incentive for our citizens to use the justice system even for “petty outrages” rather than allow such disputes to devolve into the violence of vigilantism. See W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 2 (5th ed.1984) (discussing the policy reasons for the award of punitive damages). Despite the passage of a century, this Court’s 1903 decision, Wegner v. Lubenow, still serves as our guiding principle for bringing into present day the antebellum origins of North Dakota Century Code section 32-03-29 and defining the tort of forcible ejectment contained within its venerable language.

A

[¶ 10] Forcible ejectment from real property does not require the actual application of physical force; rather, “[i]t is enough if it is present and threatened, and is justly to be feared.” Wegner, 12 N.D. at 96, 95 N.W. at 442 Syll. ¶ 4. “[A] show of force and threats” accomplishing the same result as physical removal is enough. Id. at 105, 95 N.W. at 446 “It is not necessary for the claimant to wait until actual violence is resorted to.” Id. (internal citation and quotation marks omitted). The standard requires only “that the plaintiff had reason to believe that he would be put out by the application of physical force if he did not obey....” Id. The Wegner court based its holding of forcible ejectment on the threatening actions of a person posing as a deputy sheriff:

[he] came to the plaintiffs house and represented that he was a deputy sheriff, and, after producing papers purporting to be of an official nature, threatened to put the plaintiff out of possession. [He] was not a deputy sheriff, and in fact no action had been instituted to recover possession. The plaintiff yielded possession under the direction of the supposed officer, and under circumstances from which the jury might properly find that the plaintiff had reason to believe that he would be put out by the application of physical force if he did not obey the commands of the supposed officer.

Wegner, 12 N.D. at 105, 95 N.W. at 446 (emphasis added); but see Woodring v. Winner Nat’l Bank, 56 S.D. 43, 227 N.W. 438 (1929) (holding that forcible ejectment does not apply when a law enforcement officer acting under a court order threatens to arrest a person accused of hindering a bankruptcy proceeding in order to remove him from the real property at'issue in that case).

[¶ 11] Adhering to the Wegner standard, in Livinggood we distinguished Helgeson v. Locken, 130 N.W.2d 573, 574-75 (N.D.1964), previously relied upon by Balsdon:

the trial court gave a jury instruction which defined forcibly ejecting or excluding a person from the possession of real property as “force of an unusual kind which tends to bring about a breach of the peace, such as an injury with a strong arm, or a multitude of people, or in a riotous manner, or with personal violence, or with threat or menace to life or limb, or under circumstances which would naturally inspire fear.” However, as this Court observed, that instruction was the settled law of the case because there was no objection to the instruction. The instruction does not necessarily reflect the law to be applied in all similar cases.

Livinggood, 2006 ND 11, ¶ 10, 709 N.W.2d 723 (emphasis added). Despite the rather menacing language in the first part of the description, the definition of force in Helgeson also includes “or under circumstances which would naturally inspire fear.” Id. This clause, although it conforms to the Wegner standard, when paired with the other terms of actual physical violence, muddles the definition of force. Therefore, we limit the Helgeson definition of force to that case.

[¶ 12] In this case, the district court found conduct greater than mere statements, finding instead overt acts by Bals-don, concluding that Balsdon forcibly ejected Livinggood:

(I)(B)
On May 9th, [Livinggood’s] son was out in the field seeding and Aaron Bals-don and another man pulled in front of the tractor. They told [Livinggood’s] son the contract (referring to the lease) was no f-- good. [Livinggood] said instead of a big fight he told his son to go home.
(I)(C)
[Livinggood] said he then tried to contact [Balsdon] a number of times because [Balsdon] had said he was talking to a lawyer. When [Balsdon] did not respond to messages [Livinggood’s] son went back on the 27th of May to seed the field. Aaron Balsdon once again pulled in front of [Livinggood’s] tractor and then called [Livinggood] at work. [Livinggood] testified that [Balsdon] told him that his contract was no good and to get the cultivator out of there or he was going to call the cops.
(DCE)
When Aaron Balsdon testified he confirmed that he went to the field on two occasions when [Livinggood’s] son attempted to seed it and that he threatened to call the police and possibly swore at them.

[¶ 13] Balsdon further argues that Wegner requires deception, such as impersonating law enforcement and having that person serve fake documents, because that was the method used in that case. While it is true that the ejecting party in Wegner hired someone to impersonate a sheriff and serve fake documents, Balsdon’s argument fails because the presence and result of the threat rather than its form of delivery. controls. Livinggood or his son left the property as a result of Balsdon’s actions: twice coming onto the property with another man, driving in front of the tractor, claiming the lease was invalid, and threatening to call, law enforcement. Therefore, the district court did not err in concluding that Balsdon forcibly ejected Livinggood. Having found Balsdon forcibly ejected Livinggood, the next step requires the calculation of actual damages to be trebled.

B

[¶ 14] “The appropriate standard of review in an appeal challenging a trial court’s award of damages in a bench trial is whether the trial court’s findings of fact on damages are clearly erroneous.” Buri v. Ramsey, 2005 ND 65, ¶ 17, 693 N.W.2d 619 (citations omitted). “Under N.D.R.Civ.P. 52(a), a finding of fact is clearly erroneous if there is no evidence to support it, if it is clear to the reviewing court that a mistake has been made, or if the finding is induced by an erroneous view of the law.” Id. (citation omitted).

[¶ 15] Nearly 25 years before North Dakota became a state and in the burgeoning wake of settlers generated by the Homestead Act of 1862, section 1977 of the Revised Codes of the Territory of Dakota, taken from Field’s Code, provided the measure for damages for forcibly ejecting or excluding a person from real property that has remained virtually unchanged for more than a century:

For forcibly ejecting or excluding a person from the possession of real property, the measure of damages is three times such a sum as would compensate for the detriment caused to the person by the act complained of.

N.D.C.C. § 32-03-29.

[¶ 16] At trial, the district court calculated one year of lost profits based on Livinggood’s testimony about profits he had earned on comparable farmland, summarized as follows:

76 acres at 65 bushels/aere: 4,940 bushels 4,940 bushels at $4.30 per bushel $21,242.00
Plus Farm Service Agency Program Payments 1,202.00
Total Income $22,444.00
Fall Expense to include Cash Rent $ 4,768.05
Seed (2 bushels x 76 acres at $5/bushel) 760.00 Combining (76 acres at $15/acre) 1,140.00
Spray (76 acres at $6/acre) 456.00
Crop Insurance (76 acres at $6/acre) 456.00
Total Expenses $ 7,580.05
Net Profit $14,863.95

On remand, the district court calculated treble damages by multiplying the lost-profits figure by three and then added court costs for a total judgment of $44,834.82.

[¶ 17] In his brief, Balsdon admits “there was a sufficient basis for the trial court to have found those facts from the evidence at trial.” Balsdon concentrates his argument on forcible ejectment and fails to refute any of the damage figures, other than his general statement that he does not agree with the facts in the amended judgment. Because the district court heard all the testimony and received all the evidence regarding damages and then applied those facts to the standards directed by this Court, the district court’s findings of fact are not clearly erroneous.

[¶ 18] We affirm the judgment of the district court.

[¶ 19] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ„ concur.


source: Caselaw Access Project

author: KONENKAMP, Justice. SABERS, Justice

license: Public Domain

text:
    2006 SD 87
    MIDCOM, INC., Plaintiff and Appellee, v. Anthony J. OEHLERKING, Defendant and Appellant.
    No. 23623.
    Supreme Court of South Dakota.
    Considered on Briefs March 20, 2006.
    Decided Sept. 27, 2006.

      Roberto A. Lange of Davenport, Evans, Hurwitz & Smith, L.L.P., Sioux Falls,- SD, for plaintiff and appellee.
    Courtney R. Clayborne, Michael C. Loos of Clayborne & Loos, P.C., Rapid City, SD, for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] While employed at Midcom, Inc., Anthony J. Oehlerking signed a covenant not to compete. When he resigned to work for a direct competitor, Midcom sought to enforce the covenant. Oehlerk-ing claimed, however, that it was void and otherwise unenforceable. After a trial, the circuit court ruled that the covenant was valid and enforceable. The court issued two judgments, one enjoining Oehlerking from violating the covenant, and one awarding Midcom attorney’s fees based on a provision in the contract allowing a reasonable award of fees to the prevailing party. Oehlerking appeals both judgments. Because Oehlerking’s notice of appeal from the first judgment was untimely, we dismiss that appeal. On the second judgment, we affirm the award of attorney’s fees.

Background

[¶ 2.] Midcom is based in Watertown, South Dakota. It produces electronic components primarily for the telecommunications industry. Just after he received his degree in electrical engineering, Oehlerking was hired by Midcom in 1994 as a design engineer. Over the next several years, he earned promotions and salary increases. Then, in 1998, Midcom offered him a “Performance Stock Unit Appreciation Rights Agreement.” Included in the agreement was a covenant not to compete provision. He signed a second similar agreement in February 2000 with another noncompetition clause. By its terms, Oeh-lerking was restricted from competing directly or indirectly with Midcom anywhere it does business for at least two years after leaving his job with Midcom..

[¶ 3.] In the late 1990s, Midcom’s business did particularly well. Oehlerking received sizable bonuses in addition to his $85,000 salary as the manager of the LAN business unit. According to Midcom, for fiscal years 1999 and 2000, the bonuses Oehlerking received in addition to his salary were $36,517 and $20,984 respectively. In the latter part of 2000, however, Mid-com suffered a significant downturn in business. Effective April 2001, Midcom discontinued employee bonuses, reduced salaries, and ceased its contributions to retirement plans.

[¶ 4.] As a consequence, Oehlerking suffered a twenty percent salary reduction. He believed that the true effect was a sixty-five percent reduction because he lost the bonuses and contributions to his retirement account. His taxable income before the reduction, as reflected by his tax documents, was $115,901 in 2000, and $90,041 in 2001. In 2002, his income fell to $71,404, and, in 2003, it increased to $79,055. According to Midcom, though, his income before the reductions was “unusually high” because of the bonuses paid for fiscal years 1999 and 2000.

[¶ 5.] Nonetheless, when Midcom instituted its benefits reductions, it assured Oehlerking and other employees that the salaries would eventually be restored. Indeed, Midcom began increasing salaries in July 2002. Oehlerking’s salary went from $70,054 during the reduction, to $85,800 after the restoration. For Oehlerking, however, this was not a “restoration” because he still did not receive bonuses or retirement contributions. Equally detrimental, in Oehlerking’s view, was his demotion from the manager of the LAN business unit to a product manager. In losing his managerial responsibilities, he felt “deeply saddened, psychologically distressed, and humiliated.” According to Midcom, however, he was demoted because the company had restructured. In fact, Oehlerking’s last performance review, in April 2004, was positive. Also, the demotion did not affect his salary. And, according to the company, he retained the same, if not more, job responsibilities.

[¶ 6.] Despite these changes, which began in 2001, Oehlerking continued with the company. In 2004, however, he was contacted by Pulse Engineering of San Diego, California and offered employment that would return some of the benefits he originally enjoyed with Midcom. This opportunity was attractive to Oehlerking, and, on June 25, 2004, he gave Midcom his resignation letter. Thereafter, he was invited to meet with his supervisor, in-house counsel, and Midcom’s president. Oehlerking went to the meeting thinking that Midcom might present him with a counteroffer. But the covenant not to compete was the only item on the agenda. Pulse Engineering is a direct competitor of Midcom, selling the same products for the same applications.

[¶ 7.] After he left in July 2004, Mid-com brought suit to enforce the covenant not to compete by seeking an injunction, as well as attorney’s fees allowable under the agreement Oehlerking had signed. On July 29, 2004, after an evidentiary hearing, the circuit court issued a preliminary injunction enforcing the terms of the agreement and enjoining Oehlerking from accepting or continuing employment with Pulse Engineering.

[¶8.] In trial the following October, Oehlerking argued that Midcom detrimentally altered all material aspects of his employment so much that it amounted to a “constructive discharge.” Under this theory, he claimed that the covenant was void. He further asserted that Midcom was es-topped from enforcing the covenant against him because it had not enforced the same covenant against at least three other employees. The court rejected Oeh-lerking’s arguments, finding that the covenant was enforceable and that Midcom was not estopped from enforcing the agreement.

[¶ 9.] After the trial, Midcom requested attorney’s fees and costs of $18,360.05. Oehlerking objected, claiming that the fee was unreasonable in light of the fact that this case proceeded so quickly, the issues were not new, and his total fees, by contrast, were $8,029. A hearing was held on February 2005, and the court concluded that the fees were reasonable and awarded Midcom the entire amount requested.

[¶ 10.] On appeal, Oehlerking argues that (1) the circuit court erred in enforcing the covenant not to compete, and (2) the court erred in its award of attorney’s fees. Midcom contends that Oehlerking failed to timely file his notice of appeal on the first issue.

1. Timeliness of Appeal

[¶ 11.] If Oehlerking failed to timely appeal, we will have no jurisdiction to consider his arguments. Long v. Knight Const. Co., Inc., 262 N.W.2d 207, 208-09 (S.D.1978). Under our former version of the rule, in effect at the time, an appeal was timely when a notice of appeal was filed “within sixty days after the judgment or order shall be signed, attested, filed, and written notice of entry thereof shall have been given to the adverse party.” SDCL 15-26A-6. See Sawyer v. Farm Bureau Mut. Ins. Co., 2000 SD 144, ¶ 9, 619 N.W.2d 644, 647. We regard the term “judgment” to mean a “judgment which is final rather than interlocutory.” Riede v. Phillips, 277 N.W.2d 720, 722 (S.D.1979) (citations omitted). To be final, a judgment must “finally and completely adjudicate all of the issues of fact and law involved in the case.” Griffin v. Dwyer, 88 S.D. 357, 358, 220 N.W.2d 1, 2 (1974) (citing Dolan v. Hudson, 83 S.D. 144, 156 N.W.2d 78 (1968)); see also Riede, 277 N.W.2d at 722. As the test for finality, we consider the “substance of the decision rather than its form or name[.]” Griffin, 88 S.D. at 359, 220 N.W.2d at 2.

[¶ 12.] In this case, Oehlerking seeks review of two judgments. The first judgment was dated November 8, 2004, and was filed on December 9, 2004. Notice of entry of the judgment was sent by first class mail to Oehlerking on December 14, 2004. The second judgment was dated and filed on February 23, 2005. Notice of entry of this judgment was sent by first class mail to Oehlerking on March 10, 2005.

[¶ 13.] The first judgment appears to “finally and completely” adjudicate all issues relating to the enforceability of the covenant not to compete. See Griffin, 88 S.D. at 358-59, 220 N.W.2d at 2. It was final on its face and capable of being executed. The second judgment, on the other hand, addressed issues collateral to the underlying merits of Midcom’s claim, and in no way altered or amended the first judgment. Nonetheless, Oehlerking claims that the first judgment could not become final until the court considered the issue of attorney’s fees, because the fees were part of the single action instituted by Midcom under the terms of the covenant. Oehlerking places emphasis on the court’s language in the February 23, 2005 judgment that “these Findings of Fact and Conclusions of Law and Judgment, together with the Findings of Fact, Conclusions of Law and Judgment filed December 9, 2004, are and constitute a final judgment in the case.” (Emphasis added).

[¶ 14.] This Court has not had occasion to review whether a judgment is final for purposes of an appeal when there is a later judgment that awards attorney’s fees based on the first judgment, which adjudicated the underlying merits. This question, however, has been the subject of frequent litigation. The United States Supreme Court’s decision in Budinich v. Becton Dickinson & Co. is instructive. 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988). The specific issue addressed in Budinich was “whether a decision on the merits is a ‘final decision’ as a matter of federal law under [28 USC] § 1291 when the recoverability or amount of attorney’s fees for the litigation remains to be determined.” Id. at 199, 486 U.S. 196, 108 S.Ct. at 1720, 100 L.Ed.2d 178. In accord with 28 USC § 1291 “ ‘all final decisions of the district courts’ are appealable to the court of appeals.” Id. at 198-99, 486 U.S. 196, 108 S.Ct. at 1720, 100 L.Ed.2d 178 (quoting 28 USC § 1291).

[¶ 15.] The Supreme Court recognized that generally a “final decision” is defined as “one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Id. at 199, 486 U.S. 196, 108 S.Ct. at 1720, 100 L.Ed.2d 178 (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). Finality still inheres in the judgment or order even when there is a question to be decided after the judgment ending litigation on the merits, if it does “not alter the order or moot or revise the decisions embodied in the order.” Id. (citations omitted).

[¶ 16.] The Court indicated that a question relating to an award of attorney’s fees would fit this description because the request is generally “collateral to” and “separate from” the judgment on the merits. Specifically, the Court stated that “[a]s a general matter, at least, we think it indisputable that a claim of attorney’s fees is not part of the merits of the action to which the fees pertain. Such an award does not remedy the injury giving rise to the action, and indeed is often available to the party defending against the action.” Id. at 200, 108 S.Ct. at 1721, 100 L.Ed.2d 178. Declining to adopt a rule that requires determining how the fees are characterized — part of the merits or collateral to the merits — the Court opted for a “bright-line rule, which accords with traditional understanding, that a decision on the merits is a ‘final decision’ for purposes of § 1291 whether or not there remains for adjudication a request for attorney’s fees attributable to the case.” Id. at 202-03, 486 U.S. 196, 108 S.Ct. at 1722, 100 L.Ed.2d 178. This bright-line rule preserves “operational consistency and predictability in the overall application of § 1291.” Id. at 202, 486 U.S. 196, 108 S.Ct. at 1722, 100 L.Ed.2d 178.

[¶ 17.] Also helpful is the analysis from the Eighth Circuit Court of Appeals of two different approaches to characterizing an attorney’s fee request. Obin v. District No. 9 of the Int’l Ass’n of Machinists & Aerospace Workers, 651 F.2d 574, 583 (8thCir.1981). The first approach regarded attorney’s fees as equivalent to a claim of costs; thus, not an attempt to amend or alter a judgment. The second distinguished attorney’s fees from cost disbursements because costs, arguably, are “capable of being taxed by the clerk” and attorney’s fees are most likely determined after a hearing on the matter and after consideration of submissions from the parties. Id. at 580. Also, in the second approach, fees were considered different because an appeal often resulted from an award of attorney’s fees, and costs almost never gave rise to an appeal.

[¶ 18.] Rejecting the first approach, the court in Obin agreed that attorney’s fees differ from cost disbursements. However, the court did not accept the view in the second approach that a request for attorney’s fees is integral to the final judgment on the merits. Rather, the court stated that an award of fees merely seeks what is due from the judgment, and “differs in effect from a judgment on the merits[.]” Id. at 581 (citing Knighton v. Watkins, 616 F.2d 795, 797 (5thCir.1980)). Therefore, the court, “[f]rom both a policy and a legal standpoint,” declared that “a claim for attorney’s fees should be treated as a matter collateral to and independent of the merits of the litigation.” Id. at 583 (emphasis added).

[¶ 19.] Deciding not to treat an award of attorney’s fees as part of the final judgment, the court feared the possibility that appellate courts could be inundated with successive appeals arising out of the same litigation.

This court has a real concern over fragmentation of appeals. In the interests of orderly and expeditious consideration of all issues arising from a single lawsuit, disputes on appeal over the merits, as well as disputes regarding the allowance of attorney’s fees to the prevailing party, should ordinarily be considered and decided by this court in either a single or consolidated appellate proceeding. This court deems it essential that all district courts follow a consistent practice of promptly hearing and deciding attorney’s fees claims ... so that any appeal by an aggrieved party from the allowance or disallowance of fees can be considered by this court together with any appeal taken from a final judgment on the merits.

Id. Consequently, when a final judgment has been entered on the merits in the Eighth Circuit, the time for appeal begins from the date of entry of that judgment, regardless of a subsequent determination of attorney’s fees.

[¶ 20.] We find persuasive the rationales offered by both the Supreme Court in Budinich and the Eighth Circuit in Obin, and today adopt the bright-line rule that a later decision on attorney’s fees does not affect the finality of a previous judgment on the merits. To conclude otherwise—that a determination of finality depends on a future development of the facts and later explanation of the surrounding circumstances—would only leave lawyers and litigants in confusion on when a judgment is final for purposes of appeal. Following the federal rule will assist in providing a clear understanding of when a judgment is final and appealable under SDCL 15-26A-6. And in the interest of avoiding piecemeal appeals in the future, lower courts should “delay entry of a final judgment ‘pending determination of attorney’s fee claims’ and later enter ‘a single judgment determining all issues.’ ” See Maristuen v. Nat’l States Ins. Co., 57 F.3d 673, 678 (8thCir.1995) (quoting Obin, 651 F.2d at 583).

[¶ 21.] Oehlerking does not dispute the timing of the first judgment. It was filed on December 9, 2004, and notice of its entry was sent on December 14, 2004. Thus, under SDCL 15-26A-6, for his appeal to be timely he had to file the notice of appeal “within sixty days after the judgment or order shall be signed, attested, filed, and written notice of entry thereof shall have been given to the adverse party.” See Sawyer, 2000 SD 144, ¶ 9, 619 N.W.2d at 647. Oehlerking filed his notice of appeal on April 22, 2005, well beyond the permitted time. Because Oehlerking’s appeal is untimely, we do not have jurisdiction to consider his claims. His appeal from the December 9, 2004 judgment is dismissed.

2. Attorney’s Fees

[¶ 22.] Oehlerking’s appeal from the February 23, 2005 judgment was timely. Therefore, we must determine whether the circuit court’s award of attorney’s fees to Mideom was reasonable. After the court ruled that the covenant not to compete was enforceable and enjoined Oeh-lerking from acting in violation of its terms, Midcom sought $18,360.05 in attorney’s fees. Oehlerking does not dispute that the contract provides that the prevailing party may recover their reasonable attorney’s fees for the litigation. Mideom was the prevailing party on all issues in the underlying action. Nonetheless, Oehlerking insists that Midcom’s request was “not reasonable in light of the time, effort and work performed.”

[¶ 23.] We review an award of attorney’s fees under the abuse of discretion standard. See Crisman v. Determan Chiropractic, Inc., 2004 SD 103, ¶ 24, 687 N.W.2d 507, 513 (citations omitted). After conducting a hearing on Oehlerking’s objections, the circuit court determined, in light of this Court’s reasonableness factors, that Midcom’s request was in fact reasonable. See id. ¶ 27 (citing Duffy v. Circuit Court for the Seventh Judicial Cir cuit, 2004 SD 19, ¶ 16, 676 N.W.2d 126, 134; Atchison v. Circuit Court for the Seventh Judicial Circuit, 2004 SD 20, ¶ 3, 676 N.W.2d 814, 816). While the court indicated that the case was handled on a somewhat expedited basis, it considered the ease to be moderately complex, with unique issues. Specifically, Midcom was required to research Oehlerking’s constructive discharge defense and his claim that Midcom was estopped from enforcing the covenant. Also, Midcom had the burden of proving the enforceability of the covenant not to compete. The court found that “Midcom’s attorneys did additional work beyond what Oehlerking’s attorneys did in this case.” After concluding that “[t]he experience, reputation, and ability of the lawyers performing the services were good,” the court declared that the fee request was “reasonable under the circumstances and was justified by the quality of the pleadings and attorney performance.”

[¶ 24.] When awarding Midcom attorney’s fees, the circuit court considered the required factors identified by this Court. In light of those factors and the case as a whole, the court then found Midcom’s fee request to be reasonable. Based on our review of the court’s decision, we cannot say the court abused its discretion when it awarded Midcom $18,360.05 in attorney’s fees and costs.

[¶ 25.] Midcom has also filed a motion seeking $9,007.50 in appellate attorney’s fees, relying on the same contract provision. Midcom is the prevailing party on appeal and therefore fees are allowable. See SDCL 15-17-38; Schuldies v. Millar, 1996 SD 120, ¶ 37, 555 N.W.2d 90, 100 (citations omitted). As required by SDCL 15-26A-87.3, Midcom also submitted a verified and itemized statement of costs incurred and legal services rendered for this appeal. We award Midcom $2,500 as reasonable for this appeal.

[¶26.] On Issue 1, the appeal is dismissed; on Issue 2, the judgment is affirmed.

[¶ 27.] GILBERTSON, Chief Justice, and ZINTER and MEIERHENRY, Justices, concur.

[¶ 28.] SABERS, Justice, concurs in part and dissents in part.

SABERS, Justice

(concurring in part and dissenting in part).

[¶ 29.] I agree with the Court’s conclusion on Issue I. I dissent on the majority’s decision to affirm the trial attorney’s fees and award appellate attorney’s fees. The trial court’s award of $18,360.05 in attorney’s fees for the trial was excessive. This was the full amount requested. Moreover, if this Court is going to affirm the excessive award, then we should not award any appellate attorney fees since Midcom has already received more than a reasonable amount.

[¶30.] The trial court awarded Midcom, $18,360.05 in attorney’s fees for the trial phase. Oehlerking’s attorney’s fees amount to a little over $3,000. While it is true Oehlerking appeared pro se for a portion of the litigation period, he retained an attorney for three out of the five months. Yet, Oehlerking’s attorney’s fees amount to a little over $3,000. The trial court concluded the rest of the factors supported an award of $18,360.05 for attorney’s fees. While the factors may be present for an award of some attorney’s fees, an award of over $18,000 is excessive and unreasonable.

[¶ 31.] While the standard of review of a trial court’s award of attorney’s fees is an abuse of discretion, we need not turn a blind eye to reason. In fact, the attorney’s fees are required to be reasonable. Duffy v. Circuit Court for Seventh Jud. Cir., 2004 SD 19, ¶ 16, 676 N.W.2d 126, 134. The majority determined the trial court did not abuse its discretion in awarding the requested amount of trial attorney fees. However, the majority then goes on to award $2,500 for appellate attorney fees when Midcom requested $9,007.50. When the full amount requested is unreasonable on appeal, then the full amount requested and granted is unreasonable for trial attorney’s fees also. Furthermore, if we are going to affirm the award of an unreasonable amount in trial attorney fees, then we should not award any more on appeal. An award of attorney’s fees is allowable, not mandatory. In any event, they must be reasonable.

      . Under our new rule, effective July 1, 2006, "unless otherwise provided by statute or order of the court, [motions for attorneys’ fees] must be filed no later than fourteen days after entry of judgment[.]” See SDCL 15—6—54(d)(2)(B).

      . This rule was amended, effective July 1, 2006: for all judgments filed from that date on, an appeal must "be taken within thirty days after the judgment or order shall be signed, attested, filed and written notice of entry thereof shall have been given to the adverse party.” SDCL 15-26A-6 (emphasis added).

      .The first judgment stated:
      Ordered, Adjudged and Decreed Defendant Anthony J. Oehlerking is enjoined through and until June 25, 2006, from being employed, directly or indirectly, by Pulse Engineering, Inc., or any affiliate thereof, or any other company carrying on a like business to Midcom, Inc., in the United States and those countries where Midcom. Inc. continues to sell or solicit for sale its products. It is further
      Ordered, Adjudged and Decreed that a declaratory judgment enter until [sic] SDCL 21-24 that the non-compete covenant is valid, binding, and enforceable on Anthony J. Oehlerk-ing.

      . The amount of taxable disbursements awarded to Midcom was left blank, indicating that it was "to be inserted by the Clerk or determined by the [c]ourt if there is an objection to the amount." We previously stated that leaving this amount blank does not affect the finality of the judgment. See Doughtry v. Hyde, 50 S.D. 122, 208 N.W. 581, 582 (1926).

      . The second judgment provided:
      Ordered, Adjudged and Decreed that Plaintiff's Motion For Award of Attorney's Fees and Disbursements is granted and that Plaintiff have and recover $18,360.05 for attorney's fees and disbursements from Defendant. It is further
      Ordered, Adjudged and Decreed that these Findings of Facts, Conclusions of Law, and Judgment, together with the Findings of Fact, Conclusions of Law and Judgment filed December 9, 2004, are and constitute a final judgment in the case.

      . In two cases, the Eighth Circuit Court of Appeals found cause to distinguish Budinich’s
        bright-line rule. See Maristuen v. Nat'l States Ins. Co., 57 F.3d 673 (8thCir.1995); Justine Realty Co. v. American Nat’l Can Co., 945 F.2d 1044 (8thCir.1991);. However, both decisions affirm the principal that a final judgment on the merits is final for purposes of an appeal, regardless of a later request for attorney’s fees for the litigation. See Maristuen, 57 F.3d at 678 (Because the original and first judgment had been later amended by the district court to include a quantified amount for the attorney's fees award, the first, unamended, "judgment was not final because it could not have been executed.”); Justine, 945 F.2d at 1049 (the party’s motion for fees related to costs incurred pre-litigation; therefore the court found that it was not “for the litigation’’ and the decision on the merits was not final) (emphasis added).

      . Midcom argues the attorney's fees would have been another $1,150 had Oehlerking’s counsel billed for travel time. Even then, the total attorney's fees would have been $4,150, still substantially less than Midcom's requested fees.


author: STREIT, Justice.

text:
    STATE of Iowa, Appellee, v. Reynold Raynaldo ONDAYOG, Appellant.
    No. 04-1247.
    Supreme Court of Iowa.
    Oct. 20, 2006.

      Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Ann E. Brenden, Assistant Attorney General, Timothy N. Schott, County Attorney, and Ricki Osborn and John Beaty, Assistant County Attorneys, for appellee.
   STREIT, Justice.

Reynold Ondayog appeals from his conviction for assault with intent to commit sexual abuse causing bodily injury, a class “D” felony in violation of Iowa Code section 709.11 (2003). Ondayog contends his trial attorney rendered ineffective assistance of counsel by failing to object to the jury instruction which included this charge as a lesser-included offense to the charge of kidnapping in the first degree (resulting in sexual abuse). The court of appeals determined Ondayog’s trial counsel provided ineffective assistance and reversed his conviction, vacated his judgment and sentence,. and remanded the case back to the district court for a new trial. The court of appeals also concluded double jeopardy principles precluded retrial of the submitted greater offenses of first-degree kidnapping, third-degree kidnapping, and third-degree sexual abuse. Upon further review, we find Ondayog did not satisfy both elements of his ineffective assistance of counsel claim. We vacate the decision of the court of appeals, affirm the decision of the district court, and preserve Ondayog’s ineffective assistance claim for postconviction relief proceedings.

I. Facts and Prior Proceedings

The charges in this case arose from events that happened in Fort Dodge on the night of October 23, 2003. R.H., an eighteen-year-old college student, started the night drinking beer and vodka while driving around country roads with friends. Later, she went to a local bar called “Big Reds.” She met Ondayog outside of the bar and asked him for a cigarette. She had never met Ondayog prior to this encounter. They spoke briefly, and Ondayog invited her to go back to his apartment to pick up something. She agreed and got into Ondayog’s car. On the way to the apartment, she rebuffed Ondayog’s repeated sexual overtures. Once they reached Ondayog’s apartment, she claims he unlocked the door and pushed her inside and onto the floor, scraping her knee in the process. She claims he forced her onto a mattress, removed her pants and underwear, and had sexual intercourse with her. After he was done, she ran back to Big Reds. Ondayog also returned to the bar.

R.H. told her friends what happened, and someone called the police. The police arrived and questioned Ondayog. He allowed the police to search both his car and his apartment. Police found R.H.’s underwear in his apartment.

R.H. was taken to the hospital for a physical and pelvic examination. The doctor observed an abrasion in the area between her vagina and rectum. The doctor opined the injury was fresh and could have been caused by some sort of penetration of the vagina. A DNA test did not reveal Ondayog’s DNA on R.H., her clothing, or on his bed sheets. However, Ondayog’s seminal fluid was found on his own pants. R.H.’s blood was also found on her own pants.

Ondayog was charged by trial information on December 4, 2003 with kidnapping in the first degree (resulting in sexual abuse), in violation of Iowa Code section 710.2 (2003), and sexual abuse in the third degree, in violation of Iowa Code section 709.4. The charge of third-degree sexual abuse was stricken from the trial information before trial per mutual agreement the third-degree sexual abuse charge was a lesser-included offense of first-degree kidnapping. At the conclusion of trial, the district court instructed the jury the charge of kidnapping in the first degree included the following six lesser offenses:

(1) Kidnapping in the third degree;

(2) Sexual abuse in the third degree;

(3) Assault with the intent to commit sexual abuse causing bodily injury;

(4) Assault with the intent to commit sexual abuse not causing bodily injury;

(5) False imprisonment; and

(6) Assault.

Ondayog’s trial counsel did not object to the court’s instruction. The jury returned a verdict of guilty on the offense of assault with the intent to commit sexual abuse causing bodily injury.

After the verdict was entered, Ondayog’s trial counsel, James Koll, made a motion for new trial based on the court’s error in instructing the jury. He argued the crime of assault with the intent to commit sexual abuse causing injury was not a lesser-included offense of first-degree kidnapping and therefore the conviction was a “nullity.” See State v. Adcock, 426 N.W.2d 639, 640 (Iowa Ct.App.1988) (stating willful injury was not lesser-included offense of attempted murder and therefore conviction for willful injury was nullity because the indictment charged defendant with attempted murder but not with willful injury). In response to the State’s argument he had not objected to the jury instructions, Koll indicated his failure to object to the jury instructions did not eliminate his grounds for a new trial. Citing Iowa Rule of Criminal Procedure 23.2 (now 2.24(2)), Koll argued the court must grant a new trial because the court had “misdirected the jury in a material matter of law.” Koll argued this rule indicates an objection was not necessary when the court made the error. Finally, Koll stated, if the court did not grant his motion, then

it goes on appeal, the court rules that we failed to object and it will come right back to this Court on a PCR and say was there any prejudice.... So I think my client is entitled to have this conviction thrown out [because] he is entitled to that both on the grounds that the Court has misinstructed the jury and on the grounds he has not received a fair and impartial trial because of my mistake, if I did make one.[]

The district court overruled the motion, stating Koll had not made a timely objection to the disputed jury instruction, and therefore, the instruction had become the law of the case. The court did not address the issue of whether Ondayog received ineffective assistance of counsel.

Rather than challenge the court’s ruling on the motion for new trial, Ondayog frames this appeal as a claim of ineffective assistance of counsel.

II. Scope of Review

We review ineffective-assistance-of-counsel claims de novo. State v. Martin, 704 N.W.2d 665, 668 (Iowa 2005).

III. The Merits

Ondayog argues the crime for which he was convicted was improperly submitted to the jury as a lesser-included offense of the original charges of kidnapping in the first degree and sexual abuse in the third degree. He asserts his trial counsel rendered ineffective assistance by failing to timely object to the jury instruction that submitted this charge to the jury. We first analyze whether sexual abuse causing bodily injury is a lesser-included offense to kidnapping in the first degree, and then discuss the “law of the case” doctrine and Ondayog’s ineffective-assistance claim.

A. Lesser-included Offenses

Iowa Rule of Criminal Procedure 2.22(3) allows the jury to find the defendant guilty of “any offense the commission of which is necessarily included in that with which the defendant is charged.” To determine whether one crime is a lesser-included offense of another, we apply the impossibility test and look to the elements of the offenses in question. State v. McNitt, 451 N.W.2d 824, 825 (Iowa 1990). The impossibility test provides one offense is a lesser-included offense of the greater when the greater offense cannot be committed without also committing the lesser. Id. In the case at hand, the two greater offenses do not necessarily include bodily injury, which is an element of the assault for which Ondayog was convicted. See Iowa Code §§ 710.1-.2, 709.4(1), 709.11. This means the crime of assault with intent to commit sexual abuse causing bodily injury is not included in the greater offenses because the greater offenses of kidnapping in the first degree and sexual abuse in the third degree can be committed without also committing the lesser offense of assault with intent to commit sexual abuse causing bodily injury. Cf. State v. Clarke, 475 N.W.2d 193, 195-96 (Iowa 1991) (holding willful injury is not a lesser-included offense of attempted murder due to the distinguishing element of proof of serious injury, required for conviction of willful injury but not attempted murder). Therefore, assault with the intent to commit sexual abuse causing bodily injury does not qualify as a lesser-included offense of first-degree kidnapping (with the “subjected to sexual abuse” alternative).

B. Law of the Case

The State argues the jury instructions in this case are unassailable on appeal because they have become the “law of the case.” See State v. Taggart, 430 N.W.2d 423, 425 (Iowa 1988) (stating “[fjailure to timely object to an instruction not only waives the right to assert error on appeal, but also ‘the instruction, right or wrong, becomes the law of the case’ ” (citation omitted)). We disagree. In Taggart, the case upon which the State relies for its “law of the case” doctrine, the defendant did not argue he was denied effective assistance of counsel. See id. at. 424. Therefore, when we rejected his claim for lack of error preservation we did not go further to decide whether he had received ineffective assistance.

This case comes before us as an ineffective-assistance-of-counsel claim. Ineffective-assistance-of-counsel claims are not bound by traditional error-preservation rules. See State v. Lucas, 323 N.W.2d 228, 232 (Iowa 1982) (stating the claim of ineffective assistance of counsel is an exception to the general- rule of error preservation). Such claims are an exception to normal error-preservation rules and the “law of the case” doctrine. See State v. Callender, 444 N.W.2d 768, 772 (Iowa Ct.App.1989) (analyzing ineffective-assistanee-of-counsel claim that addressed trial counsel’s failure to timely object to a jury instruction).

C. Ineffective Assistance of Counsel

The right to assistance of counsel, under the Sixth Amendment to the United States Constitution and article I, section 10 of the Iowa Constitution, guarantees “effective” assistance of counsel. Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158, 172 (1932); State v. Kinkead, 570 N.W.2d 97, 103 (Iowa 1997). To prove a claim of ineffective assistance of counsel, Ondayog must show by a preponderance of the evidence that his trial counsel failed to perform an essential duty and prejudice resulted. Martin, 704 N.W.2d at 669; accord Rompilla v. Beard, 545 U.S. 374, 380, 125 S.Ct. 2456, 2462, 162 L.Ed.2d 360, 377 (2005) (“Ineffective assistance ... is deficient performance by counsel resulting in prejudice .... ”). Ondayog’s ineffective-assistance claim fails if he is unable to prove either element of this test. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).

1. Prejudice

The resulting prejudice element of an ineffective assistance claim is satisfied if a reasonable probability exists that, “ ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Martin, 704 N.W.2d at 669 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984)). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. Ondayog asks us to presume prejudice because he was convicted of a crime for which he was not charged. We need not do so because the facts themselves provide enough evidence to find prejudice in this case.

The jury instructions set forth a cascade of criminal offenses, beginning with the crime of kidnapping in the first degree. The last sentence of the kidnapping in the first degree instruction states:

If the State has failed to prove any one of the elements [of this charge], the defendant is not guilty of Kidnapping in the First Degree and you will then consider the charge of Kidnapping in the Third Degree explained in [a subsequent instruction].

The instruction pertaining to kidnapping in the third degree contains a similar statement referring the jury to the charge of sexual abuse in the third degree. The instruction pertaining to sexual abuse in the third degree contains a similar statement referring the jury to the charge of assault with intent to commit sexual abuse causing bodily injury. This instruction directs the jury to the next lower offense, assault with the intent to commit sexual abuse not causing bodily injury. Presumably, the jury crossed off each instruction one at a time, in order, until it settled upon a crime for which all members agreed the elements were satisfied. If the jury had not been presented with this nonlesser-included offense, then it would likely have settled upon the next available alternative — assault with intent to commit sexual abuse (not causing bodily injury). Since this crime is only an aggravated misdemeanor, Ondayog’s trial counsel’s alleged error may have been the difference between a felony and a misdemeanor conviction.

This is clear proof, had his attorney objected to the inclusion of the crime of sexual abuse causing bodily injury, the result of the proceeding would have been different.

2. Did Trial Counsel Breach an Essential Duty?

We presume performance of counsel falls within a range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). Ondayog has the burden to rebut this presumption with evidence his trial counsel’s “representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

Because timely objection to jury instructions in criminal proceedings is necessary to preserve alleged error for appellate review, State v. Jeffries, 430 N.W.2d 728, 737 (Iowa 1988), Ondayog argues his counsel breached an essential duty by not objecting to the improper jury instructions at the time of trial. Indeed, we have previously held the failure to recognize an erroneous instruction and preserve error breaches an essential duty. See State v. Hopkins, 576 N.W.2d 374, 379-80 (Iowa 1998). The question becomes whether there was a tactical reason for not objecting to the instruction. See State v. Graves, 668 N.W.2d 860, 881-82 (Iowa 2003) (concluding trial counsel breached an essential duty by failing to object to the county attorney’s questions and argument and in failing to request a mistrial because there was no tactical reason for not objecting). Courts generally presume counsel is competent and a “defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L,Ed.2d at 694-95).

Moreover, we must evaluate trial counsel’s actions from the perspective of when the decision was made — during the course of trial. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694, (“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”). Viewed from this angle, it appears Ondayog’s trial counsel’s failure to object to the erroneous jury instruction could be deemed trial strategy. Ondayog was charged with kidnapping in the first degree, a Class “A” felony. Iowa Code § 710.2. If convicted of this crime, he would have been sentenced to mandatory life imprisonment. Id. § 902.1. As proper lesser-included offenses, Ondayog could have been convicted of kidnapping in the third degree, or sexual abuse in the third degree, both class “C” felonies. See id. §§ 709.4, 710.4. Class “C” felonies carry a maximum indeterminate sentence of ten years and a maximum fine of $10,000. Id. § 902.9. Trial counsel representing a defendant in such a situation might purposely allow the jury to be instructed on the lesser offense of assault with intent to commit sexual abuse causing bodily injury because this crime is only a class “D” felony, punishable by a maximum indeterminate sentence of five years and a fíne of $7500. Id. §§ 709.11, 902.9. By instructing on this lesser crime, trial counsel would give the jury the opportunity to forego the three higher offenses. If this was the strategy, it was successful.

This case illustrates why we rarely address ineffective-assistance claims on direct appeal and instead preserve such claims for postconviction relief. State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006). Because “[i]mprovident trial strategy, miscalculated tactics, and mistakes in judgment do not necessarily amount to ineffective assistance of counsel,” State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992), postconviction proceedings are often necessary to discern the difference between improvident trial strategy and ineffective assistance.

The fact that a particular decision was made for tactical reasons does not, however, automatically immunize the decision from a Sixth Amendment challenge. That decision must still satisfy the ultimate test: “whether under the entire record and totality of circumstances” counsel performed competently.

Graves, 668 N.W.2d at 881 (citations omitted). Nonetheless, we do not delve into trial tactics and strategy “when they do not clearly appear to have been misguided.” State v. Couser, 567 N.W.2d 657, 659 (Iowa 1997). In other words, “we will not reverse where counsel has made a reasonable decision concerning trial tactics and strategy, even if such judgments ultimately fail.” Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989); see also Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984) (“we require more than a showing that trial strategy backfired or that another attorney would have prepared and tried the ease somewhat differently”).

Since a counsel’s “mistake in judgment” is rarely grounds for ineffective assistance, we cannot automatically assume every alleged misstep was a reasonable strategy simply because some lawyer, somewhere, somehow, under some circumstances at some time would have done such a thing. In Strickland, the United States Supreme Court conceded “[representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.” Strickland, 466 U.S. at 693, 104 S.Ct. at 2067, 80 L.Ed.2d at 697. Thus, a reviewing court must determine whether a reasonably competent attorney would have failed to object to the erroneous jury instruction under the given circumstances. Id. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694 (“The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.”).

Ondayog contends postconviction proceedings are not necessary in this case because his trial counsel admitted he may have made a mistake. Ondayog contends these statements indicate his trial counsel did make a mistake, and therefore violated an essential duty.

Standing alone, Ondayog’s trial counsel’s statements are not enough to rebut the presumption that performance of counsel falls within a range of reasonable professional assistance. See Strickland, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693 (stating “the defendant must show that counsel’s representation fell below an objective standard of reasonableness” (emphasis added)). This issue is preserved for postconviction proceedings where the record can be more fully developed. If Ondayog desires, his trial counsel may testify in order to more fully explain his actions. See, e.g., State v. Peck, 539 N.W.2d 170, 175 (Iowa 1995) (finding the record incomplete with respect to ineffective-assistance issues and preserving for postconviction proceedings determination of whether defense counsel’s failure to request lesser included offense instructions was part of an “all or nothing” strategy); Wycoff v. State, 382 N.W.2d 462, 472 (Iowa 1986) (after reviewing trial counsel’s testimony at the postconviction trial, concluding counsel’s failure to request an alibi instruction was based on his general strategy of attempting to disprove the State’s evidence by showing the unlikelihood that Wycoff, although present, murdered the victim); State v. Wilkens, 346 N.W.2d 16, 18 (Iowa 1984) (after reviewing trial counsel’s testimony at the hearing on the motion for a new trial, concluding trial counsel’s tactical decision to concentrate on self defense rather than diminished capacity “made sense”). Ultimately though, the district court must determine whether trial counsel’s omission was reasonable under “prevailing professional norms,” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694); that is the court must apply “an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

IV. Conclusion

Ondayog has failed to establish his claim of ineffective assistance of counsel. The decision of the district court is affirmed, and we preserve Ondayog’s ineffective assistance claim for postconviction relief proceedings.

COURT OF APPEALS DECISION VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

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

      . Later, Koll went on to argue:
      if you grant our Motion for New Trial, I think the State could charge him with the crime he has been found guilty of but was not charged with so it doesn't get my client out of this crime that he was convicted of. It just gives him an opportunity to contest that crime that he has not had the opportunity to in terms of the strategy that was designed in the trial to confront the charges that he was charged with.

        . A jury is presumed to follow the instructions of the court. State v. Proctor, 585 N.W.2d 841, 845 (Iowa 1998); State v. Anderson, 209 Iowa 510, 517, 228 N.W. 353, 356 (1929). There is no evidence indicating the jury did not follow the court’s instructions in this case.

      . During the motion for a new trial, Onda-yog's trial counsel said the following:
      Your Honor, after the jury verdict in this case, I tried to analyze why the jury came to this conclusion and .... I think I made a mistake. I think the jury found my client guilty of something he wasn’t charged with.... Now I know the State will probably argue I think in their brief we waived that argument .... If that's correct, if I made a mistake by failing to object that instruction .... [ijfl made a mistake in not correcting the Court’s error, then that is still grounds for new trial, Judge.... Whether it's my mistake and I failed to object ... — he is entitled to [a new trial] both on the grounds that the Court has misinstructed the jury and on the grounds that he has not received a fair and impartial trial because of my mistake, if I did make one.

      (Emphasis added.)


author: CADY, Justice.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellant, v. K.G.T., Appellee.
    No. 06-0372.
    Supreme Court of Iowa.
    Oct. 20, 2006.

      Charles L. Harrington and Teresa Vens, Des Moines, for appellant.
    K.G.T., Larchwood, appellee, pro se.
   CADY, Justice.

In this attorney disciplinary proceeding, we must decide if the Grievance Commission of the Supreme Court of Iowa (the “Commission”) erred in ruling that amended Iowa Court Rule 35.3 did not apply to permit the Iowa Supreme Court Attorney Disciplinary Board (the “Board”) to file a complaint with the Commission against an attorney after the Board had decided to dispose of the original complaint against the attorney by a reprimand. On interlocutory review, we reverse the decision of the Commission, and remand for further proceedings.

I. Background Facts and Proceedings

K.G.T. is an Iowa lawyer. In February 2005, he contacted the Board and reported that he may have engaged in conduct in violation of the Code of Professional Responsibility. K.G.T. self-reported that, in his capacity as an assistant county attorney, he signed the name of a judge, without authorization, on a hearing order in a juvenile case, and filed the order with the clerk of court.

On June 15, 2005, the Board considered the complaint and voted to publicly reprimand K.G.T. for his conduct. The Board prepared a letter of public reprimand on July 20, 2005. The letter was then filed with the clerk of the Commission, who eventually served K.G.T. with the letter by certified mail on August 25, 2005. This service was preceded by two unsuccessful attempts to serve K.G.T. by certified mail.

On October 19, 2005, after receiving notice of the letter of reprimand, we declined to include the reprimand letter in the public records of our clerk of court. Instead, we remanded the matter to the Board for further consideration.

After further consideration, the Board filed a two-count complaint against K.G.T. Count I of the complaint was based on the same matter that was the subject of the letter of reprimand. K.G.T. filed an answer to the complaint. The answer to count I admitted the allegations, but K.G.T. additionally moved to dismiss the count. He claimed we had no authority to reject the Board’s letter of reprimand because the rule authorizing the supreme court to remand a letter of reprimand was not effective until July 1, 2005, and the rule did not apply to the conduct he reported in February 2005.

The Commission granted the motion to dismiss count I. It held that the rule authorizing the supreme court to reject a letter of public reprimand by the Board could not be applied retroactively to conduct by an attorney that the Board determined, prior to the effective date of the rule, would result in a letter of public reprimand.

The Board sought, and we granted, permission to appeal the decision of the Commission. The Board argued that the rule authorizing the supreme court to remand a letter of public reprimand for further consideration by the Board applies retrospectively to all cases pending at the time the rule became effective as long as a hearing on the complaint has not yet been commenced before the Commission.

II. Standard of Review

“We review rulings and reports of the grievance commission de novo.” Iowa Supreme Court Bd. of Prof'l Ethics & Conduct v. D.J.I., 545 N.W.2d 866, 871 (Iowa 1996) (citing Iowa Sup.Ct. R. 118.10 (current version at Iowa Ct. R. 35.10(1))).

III. Discussion

The Board is charged with the responsibility to accept and act upon complaints from any person alleging ethical violations by lawyers. See Iowa Ct. Rs. 34.1, 34.5. In response to a complaint, the Board may pursue a variety of actions, including taking the complaint under consideration at periodic Board hearings and meetings. Iowa Ct. R. 34.8. After considering a complaint at such a hearing or meeting, the Board may, among other actions, reprimand the lawyer and file a written reprimand as provided by rule 35.3. See Iowa Ct. R. 34.11(4).

Rule 35.3 governs the reprimand of an attorney by the Board. See Iowa Ct. R. 35.3. Prior to July 1, 2005, the rule provided that a copy of the reprimand be filed by the Board with the clerk of the Commission, who is required to serve the reprimand on the attorney. Id. After service, an attorney who fails to file an exception to the reprimand is deemed to consent that the reprimand be final and public. Id. The clerk then provides the supreme court with a copy of the reprimand, together with a declaration that no exception was taken, and the supreme court must direct the reprimand be made a public record of the court. Id. This action then concludes the matter.

On April 20, 2005, rule 35.3 was amended to give the supreme court the option of remanding the matter to the Board for consideration of another disposition, in lieu of concluding the matter by making the reprimand a public record. See Iowa Ct. R. 35.3. This rule allows the supreme court to reject reprimands viewed to be too harsh or too lenient, or otherwise inappropriate. Importantly, the amended rule did not go into effect until July 1, 2005. Id.

The dispute in this case arises because the amended rule went into effect after the Board decided to issue a reprimand. K.G.T. asserts that count I of the complaint must be governed by the procedure that was in place at the time the Board voted to impose a reprimand. He claims, and the Commission held, the current procedure giving the supreme court the option of remanding a Board reprimand for further consideration cannot apply retroactively to count I of the complaint.

It is the general rule that statutes and rules are presumed to apply prospectively to actions that arise after the effective date of the enactment. See Bowers v. Polk County Bd. of Supervisors, 638 N.W.2d 682 (Iowa 2002); D.J.I., 545 N.W.2d at 872. This presumption exists only if there is no additional enactment that expressly makes the law or rule retrospective. See In re Marriage of Williams, 595 N.W.2d 126, 130 (Iowa 1999) (“A statute is presumed to be prospective in its operation unless expressly made retrospective.” (Citation omitted.)). This same approach “applies to our construction of court rules.” D.J.I., 545 N.W.2d at 872.

There is a disciplinary rule that specifically addresses the prospective and retrospective application of the other disciplinary rules governing attorney discipline. Thus, we look to the rule for guidance. Iowa Court Rule 35.24 provides:

These rules shall have prospective and retrospective application to all alleged violations, complaints, hearings, and dispositions thereof on which a hearing has not actually been commenced before the Grievance Commission prior to the effective date of these rules.

In D.J.I., we considered the application of this rule and recognized that the rules governing Commission proceedings apply retroactively to alleged violations and complaints when a hearing has not been commenced at the time of the effective date of the rule. 545 N.W.2d at 872. Thus, an amendment to a rule applies to a pending disciplinary matter unless a hearing before the Commission has been commenced. Id. In D.J.I., we held the pertinent rule had retroactive application because “[t]he record show[ed] a hearing on the merits of the disciplinary complaint filed by the Board against respondent ha[d] not been commenced and [was] stayed pending resolution of this interlocutory appeal.” Id.

At the time rule 35.3 was amended to authorize the supreme court to reject a Board reprimand, the matter in this case had not reached the commission stage of the disciplinary process. Instead, the matter was still before the Board, and it sought to dispose of the matter without filing a complaint with the Commission for prosecution. See Iowa Ct. R. 34.11(5). The only action that had been taken on the original complaint at the time of the effective date of the amendment to rule 35.3 was the Board’s decision to dispose of the complaint by a reprimand. Thus, no hearing had “actually been commenced before the Grievance Commission prior to the effective date” of amended rule 35.3. See Iowa Ct. R. 35.24. As a result, the amended rule applies retrospectively pursuant to the language of rule 35.24.

Finally, the Board had not filed its reprimand with the clerk of the Commission at the time of the effective date of the new rule, and K.G.T. had not been placed in a position to object or consent to the reprimand. Thus, K.G.T. did not take any action in reliance on the prior procedural rule. For that reason, the retrospective application of the rule to this case does not, contrary to the decision of the Commission, implicate any additional principles of fundamental fairness or fair play that might entitle K.G.T. to relief.

IV. Conclusion

We conclude the Commission erred in dismissing count I of the complaint. We reject all grounds relied upon by the Commission. We reverse the decision of the Commission and remand for further proceedings.

REVERSED AND REMANDED.

All justices concur except STREIT and HECHT, JJ., who take no part.


author: /s/Helen M. Meyer, Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Donald L. DeVAUGHN, a Minnesota Attorney, Registration No. 22391.
    No. A06-71.
    Supreme Court of Minnesota.
    Oct. 25, 2006.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Donald L. DeVaughn has committed professional misconduct warranting public discipline, namely, that respondent misappropriated client funds in the amount of $7,750, failed to maintain trust account books and records, and failed to perform required account reconciliations resulting in shortages in respondent’s trust account, in violation of Minn. R. Prof. Conduct 1.15(a) and (h) and 8.4(c) and (d).

Respondent has admitted to certain allegations of the petition and has withdrawn his answer to the remainder of the allegations of the petition, recognizing that the remaining allegations of the petition are deemed admitted under Rule 13(b), Rules on Lawyers Professional Responsibility (RLPR). In addition, respondent has repaid the amounts withdrawn from his trust account and has submitted evidence of respondent’s clinical depression as a mitigating circumstance. Respondent waives his rights under Rule 14, RLPR, and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is indefinite suspension with no right to apply for reinstatement for a minimum of 18 months.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Donald L. DeVaughn is indefinitely suspended from the practice of law with no right to apply for reinstatement for a minimum of 18 months. The hearing required by Rule 18(d), RLPR, is not waived. In addition, reinstatement shall be subject to successful completion of the professional responsibility portion of the bar examination under Rule 18(e)(2), RLPR, satisfaction of continuing legal education requirements under Rule 18(e)(4), RLPR, and presentation of clear and convincing evidence of physical and mental health necessary to practice law. Respondent shall pay costs and disbursements in the amount of $900 under Rule 24, RLPR, and shall comply with Rule 26, RLPR (requiring notice of suspension to clients, opposing counsel, and tribunals).

BY THE COURT:

/s/Helen M. Meyer, Associate Justice

ANDERSON, Paul H., J., took no part in the consideration or decision of this case.


author: /s/ Russell A. Anderson Chief Justice

text:
    Thomas SKELLEY, Respondent, v. LUCENT TECHNOLOGIES, and Reliance National Insurance Company/Heritage Claim Service, Relators.
    No. A06-1358.
    Supreme Court of Minnesota.
    Oct. 25, 2006.
   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 27, 2006, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (explaining that, [s]ummary affirmances 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).

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/ Russell A. Anderson Chief Justice