author: GILBERTSON, Chief Justice.

text:
    2007 SD 5
    Joyce A. SMETANA, Plaintiff and Appellee, v. Robert D. SMETANA, Defendant and Appellant.
    No. 24045.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 27, 2006.
    Decided Jan. 10, 2007.

      Richard A. Johnson, Gregory T. Brewers of Strange, Farrell & Johnson, P.C., Sioux Falls, SD, for plaintiff and appellee.
    E. Steeves Smith of Tinan, Smith and Bucher, Mitchell, SD, for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] Robert D. Smetana appeals the property division in a judgment and decree of divorce from Joyce A. Smetana. He contends that the trial court erroneously invalidated the antenuptial agreement between the parties and improperly awarded Joyce attorney fees. We affirm in part and reverse and remand in part.

FACTS AND PROCEDURE

[¶ 2.] Robert and Joyce were married on September 8, 1978. At the time of marriage, Robert was fifty-two years old and Joyce was forty-four years old. This was a second marriage for both parties. Prior to the marriage, Joyce had obtained a bachelor’s degree in Psychology and Elementary Education and a master’s degree in Special Education and Reading. She worked at Delmont Public Schools and later the Mental Healthcare Center in Mitchell and Dakota Wesleyan University. After the marriage, Joyce continued to work outside of the home until 1986. She also assisted in the farming operation by disking, combining and acting as a “gopher” for Robert. In addition, Joyce attended to the gardening, cleaning, cooking and laundry. The farming operation incorporated in 1980, and in 1988, Joyce assumed the duties of bookkeeper for Smetana Farms, Incorporated.

[¶ 3.] Robert owned and operated farms in North Dakota until 1967 when the machinery and equipment were sold. Thereafter, the North Dakota farmland was rented out. The trial court did not include any of the North Dakota land as marital property. Robert moved to South Dakota in 1957 and began purchasing land there. In 1963, Robert purchased land from E.F. Colfax on a fifteen-year contract for deed. This contract, however, was not paid off until October 1988, ten years after the marriage. Although a portion of the value of this land was deemed pre-marital, approximately forty percent was included in the marital estate.

[¶4.] Also, in 1973, Robert purchased 17 acres from Melvin Potthast by warranty deed. He completely paid for this parcel before the marriage. However, eighty percent of the value of the Potthast land was included in the marital portion. Robert acquired another 233.94 acres of land in South Dakota by two contracts for deed from William and Joe Hank in 1974. One contract, for 155.87 acres, was paid in full in 1976, about two years before Robert and Joyce married. The other contract, for 78.07 acres, extended until March 1, 1981. The record reflects that half of this contract for 78.07 acres was paid before the marriage. However, eighty-four percent of the value of the entire 233.94 acres was included in the marital estate as Robert’s property. At the time of the marriage, Robert owned and operated this land in South Dakota. After the marriage, Robert acquired another 163 acres of land, which was all included in the marital estate as Robert’s property.

[¶ 5.] Two days before their marriage the parties entered into an antenuptial agreement prepared by Joyce’s attorney. The entire antenuptial agreement consisted of the following language:

This antenuptial contract entered into this 6th day of September, 1978, between Robert D. Smetana of Fulton, South Dakota, hereinafter for convenience referred to as Husband, and Joyce Funkhauser King of Mitchell, South Dakota, hereinafter for convenience referred to as Wife, Witnesseth:
I.Husband and Wife intend to marry each other soon, and it is agreed that after such marriage, all of the properties of any name or nature, real, personal or mixed, wherever they may be found, belonging to Husband before marriage shall be and remain forever his personal estate, and that this shall include all interest, rents, and profits which may in time accrue or result in any manner from increase in value, or be collected for the use of the same in any way.
II. All properties of any name or nature, real, personal or. mixed, wherever the same shall be found which belong to Wife before marriage shall be and remain forever her personal estate, and this shall include all interest, rents, and profits which may in time accrue or result in any manner from increase in value, or be collected for the use of the same in any way.
III. Each party agrees to sign with the other, all title paper, deeds or other papers necessary to transfer property when sold to a purchaser, in any event, it is necessary that such title papers be executed by a man and wife, either in the State of South Dakota or any other State, and this courtesy shall be prompt at any time and in any place.
IV. Husband agrees to, from his own personal estate, assume necessary expense of support and maintenance of Wife.
V. Nothing herein shall be construed to be a bar to either party to this agreement, giving any property of which they may be possessed to the other party by will or otherwise. Each party to this agreement shall control their personal estate as described herein, and do with the properties thereof whatsoever they wish and will, by his or her orders or directions or by will, the same as either could or would do if no marriage existed between them. That upon the demise of each party, their personal estates shall pass by their individual Wills, or by law to their individual heirs, and each party waives any claim participation they may otherwise be entitled to by law in the estate of the other.

The antenuptial agreement did not set forth in detail or even list' what Joyce and Robert each owned prior to the marriage. After receiving briefs from both parties, the trial court found that the agreement was ineptly drawn and did not adequately disclose the nature and extent of either Joyce’s or Robert’s assets or liabilities. The court further found that Joyce did not have a reasonable approximation of the magnitude of Robert’s wealth and the agreement did not contain adequate provisions for Joyce in the event of divorce. Therefore, the court concluded that the antenuptial agreement was invalid as unconscionable. The court further mentioned that “the values to be received by the parties would make little if any difference at all in any final division if the court were to hold the antenuptial agreement valid or invalid.”

[¶ 6.] After twenty-five years of marriage, Joyce filed for divorce on June 21, 2003. During the course of the trial, the court made rulings on several disputed property issues. At the conclusion of the trial, the court awarded Joyce one fourth of her attorney’s fees, approximately $6,600. Robert appeals:

1. Whether the trial court erred when it invalidated the antenuptial agreement.
2. Whether the trial court abused its discretion when it awarded Joyce attorney fees.

STANDARD OF REVIEW

[¶ 7.] “An issue of uneonsciona-bility of a premarital agreement shall be decided by the court, as a matter of law.” SDCL 25-2-21(b). ‘We review question[s] of law under the de novo standard.” Sanford v. Sanford, 2005 SD 34, ¶ 12, 694 N.W.2d 283, 287 (citations omitted). “Findings of fact, reviewed under the clearly erroneous standard, will not be overturned unless the reviewing court is left with a firm conviction that a mistake has been made.” Godfrey v. Godfrey, 2005 SD 101, ¶ 11, 705 N.W.2d 77, 80 (citation omitted). “An award of attorney fees is reviewed under the abuse of discretion standard.” Crisman v. Determan Chiropractic, Inc., 2004 SD 103, ¶ 24, 687 N.W.2d 507, 513 (citing City of Sioux Falls v. Johnson, 2003 SD 115, ¶ 6, 670 N.W.2d 360, 362).

ANALYSIS AND DECISION

[¶ 8.] 1. Whether the trial court erred when it invalidated the antenuptial agreement.

[¶ 9.] It must first be noted that “antenuptial agreements are favored in law since they allow parties to protect the inheritance rights of their respective children by prior marriages and thus prevent subsequent strife over the disposition of their respective estates.” Schutterle v. Schutterle, 260 N.W.2d 341, 347 (S.D.1977), superseded by statute on other grounds, SDCL 19-13-3, as recognized in State v. Catch the Bear, 352 N.W.2d 640, 645 (S.D.1984) (citations omitted). Taking this fact into consideration, this Court first set forth the criteria for determining the enforceability of antenuptial agreements in Schutterle when it stated,

[s]ome courts appear to have established a hard and fast rule that there must have been a full and frank disclosure by the prospective husband to his prospective wife concerning the nature and extent of his property before an antenup-tial agreement will be held to he valid and binding as against the wife. We conclude, however, that the better rule is that under which an antenuptial agreement will be held valid if the prospective spouse can be said to have had adequate knowledge of the nature and extent of the other party’s property, either as a result of disclosure by the other party or through the independent knowledge,, however acquired, of the prospective spouse, or if the- prospective spouse has been adequately provided for by the agreement.

260 Ñ.W.2d at 348 (citations omitted). In Schutterle, “the trial court found that although Ralph had made no disclosure to Edna of the exact extent and value of his estate prior to their marriage, Edna had learned during their courtship that Ralph owned land, livestock and farm machinery in South Dakota.” Id. This Court was persuaded by the totality of the circumstances that Edna “had sufficient knowledge of the nature and extent of Ralph’s property to satisfy the alternative tests of disclosure or independent knowledge.” Id. at 349.

[¶ 10.] “The validity of an ante-nuptial agreement is to be decided on the basis of the facts of each case.” Ryken v. Ryken (Ryken II), 461 N.W.2d 122, 125 (S.D.1990) (citing Ryken v. Ryken (Ryken I), 440 N.W.2d 300, 304 (S.D.1989); Schutterle, 260 N.W.2d at 348). This is so because each decision involving the validity of antenuptial agreements “depends upon the circumstances peculiar to the parties, factors such as the respective age of the parties, their prior marital status, the number and ages of children from prior marriages, [and] the nature and extent of the property owned by the parties.... ” Schutterle, 260 N.W.2d at 348.

[¶ 11.] This Court has “addressed] what constitutes a ‘fair and reasonable disclosure’ in the context of SDCL 25-2-21.” Sanford, 2005 SD 34, ¶ 42, 694 N.W.2d at 294. However, this statute did not come into existence until after the parties’:marriage. In 1989, South Dakota enacted the Uniform Premarital Agreement Act (UPAA), which is codified as SDCL 25-2-16 through 25-2-25. Robert contends that these statutes do not apply retroactively to the agreement in this case. He claims the validity of the antenuptial agreement must be reviewed only under case law in existence at the time the agreement was executed. Joyce argues, however, and this Court agrees, that enactment of the UPAA did not alter the legal analysis concerning the validity of antenuptial agreements. Instead, enactment of the UPAA codified previous precedent. The statute relevant to enforcement of ante-nuptial agreements is SDCL 25-2-21, which provides in pertinent part:

(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
(1) That party did not execute the agreement voluntarily; or
(2) The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
(i) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(ii) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
(iii) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

Much of this language and analysis is contained in the earlier cases of Schutterle and Ryken I. 260 N.W.2d at 347-50; 440 N.W.2d at 304. Thus, for purposes of this appeal, precedent established after the enactment of the UPAA is relevant and useful in determining the validity of the ante-nuptial agreement.

[¶ 12.] On those occasions where this Court analyzed what constitutes a “fair and reasonable disclosure,” “we held the burden of disclosure rests with each spouse, rather than placing an obligation on one spouse to determine the extent of the assets of the other spouse.” Sanford, 2005 SD 34, ¶ 42, 694 N.W.2d at 294 (citing Ryken II, 461 N.W.2d at 125). “It does not fall upon a spouse to assume the role of detective in an attempt to ferret out the existence and value of the other spouse’s assets.” Id. This Court further stated:

It is not necessary, given the language in SDCL 25-2-21, for a spouse to provide a detailed and exact valuation of his or her net worth in a prenuptial agreement. It is sufficient for a spouse to provide, within the best of his ■ or her abilities, a list of assets and liabilities with approximate valuations. The listing must be sufficiently precise to give the "other spouse a reasonable approximation of the magnitude of the other spouse’s net worth.

Id.

[¶ 13.] In the instant case, Robert did not supply any list of assets or liabilities at any time. Robert claims, however, that Joyce became aware of his assets during their fourteen-month courtship. Although Joyce admits to knowing Robert owned land in both South Dakota and North Dakota, a home, grain bins and farm machinery, this does not establish that she was aware of Robert’s net worth. Moreover, she was not aware of any of Robert’s liabilities. However, according to Schutterle, an antenuptial agreement may still be valid despite a prospective spouse’s lack of knowledge concerning the nature and extent of the other spouse’s property. If the prospective spouse is adequately provided for in the agreement, then a lack of knowledge concerning the other spouse’s property is immaterial, and the antenuptial agreement is still valid. Schutterle, 260 N.W.2d at 348.

[¶ 14.] The agreement in this case made no provision for Joyce in the event of divorce. In fact, the agreement did not even mention divorce. This fact raises another issue concerning the validity of the antenuptial agreement and its applicability to a divorce proceeding.

[¶ 15.] “This Court addressed whether an antenuptial agreement applied to a divorce action in [Ryken I].” Roth v. Roth, 1997 SD 75, ¶ 15, 565 N.W.2d 782, 786 (citing Ryken I, 440 N.W.2d at 304). “The trial court [in Ryken 7] held the agreement was inapplicable to divorce proceedings because it failed to mention divorce.” Id. This Court reversed, concluding that a divorce action was contemplated where the language of the agreement provided for applicability during legal proceedings. Id. However, unlike the agreement in Ryken I, the antenuptial agreement in this case does not mention divorce, legal proceedings, or anything of that nature. This Court has stated that “settled law elsewhere clearly indicates ‘an agreement that did not contain any reference to divorce, and recited that it only affected the parties’ rights during marriage or upon death, could not be employed by a divorce court as if it were the property settlement in the dissolution proceedings.’ ” Id. ¶ 13 (citations omitted).

[¶ 16.] Robert urges this Court to consider the parties’ intent that the agreement was executed in contemplation of divorce, However, “[t]his Court looks ‘to the language that the parties used in the contract to determine their intention.’ ” Pauley v. Simonson, 2006 SD 73, ¶ 8, 720 N.W.2d 665, 667-68 (quoting Ziegler Furniture and Funeral Home, Inc. v. Cicmanec, 2006 SD 6, ¶ 16, 709 N.W.2d 350, 355 (citations omitted)). “If that intention is clearly manifested by the language of the agreement, it is the duty of this Court to declare -and enforce it.” Id. Further, “there is a presumption that a written agreement proclaims the ultimate intention of the parties.” Roth, 1997 SD 75, ¶ 17, 565 N.W.2d at 786 (citation omitted). “Parol and extrinsic evidence may be used for clarification” only when “the contract is ‘uncertain or ambiguous.’ ” Pauley, 2006 SD 73, ¶ 8, 720 N.W.2d at 668 (citing Jensen v. Pure Plant Food Intern., Ltd., 274 N.W.2d 261, 263-64 (S.D.1979)). With regards to ambiguity, this Court has clearly stated:

“A contract is not rendered ambiguous simply because the parties do not agree on its proper construction or their intent upon executing the contract.” Rather, a contract is ambiguous only when “it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.”

Roth, 1997 SD 75, ¶ 16, 565 N.W.2d at 786 (internal citations omitted). A review of the four corners of the document reveals the antenuptial agreement between Robert and Joyce fails to mention divorce or separation in any manner. Therefore, we conclude that the antenuptial agreement in this case is unambiguous as a matter of law as it clearly applies to the distribution of property upon the death of one of the parties, not to divorce.

[¶ 17.] For all of the reasons set forth above, we conclude the trial court was correct in concluding that the antenuptial agreement was invalid.

[¶ 18.] 2. Whether the trial court abused its discretion when it awarded Joyce attorney fees.

[¶ 19.] Robert objects to the award of attorney fees to Joyce for several reasons. First, Robert contends that Joyce’s complaint requested, in the wherefore clause, that each party pay their own attorney fees. Robert also claims the court abused its discretion in awarding attorney fees without a hearing and without entering findings of fact and conclusions of law respecting attorney fees. This Court has stated:

The award of attorney fees is authorized by SDCL 15-17-38. Whether an award is warranted, however, is left to the sound discretion of the court. When making this determination, the court must first decide whether the fees are reasonable; then, using our standard factors, it must establish whether an award is necessary. -The elements a court should consider are “the property owned ,by each party, their relative incomes, whether the property of the parties is in fixed or liquid assets, and whether the actions of either party unreasonably increased the time spent on the case.”

Keller v. Keller, 2003 SD 36, ¶18, 660 N.W.2d 619, 624 (internal citations omitted).

Additional factors to be considered are: (1) the intricacy and importance of the litigation; (2) labor and time involved; (3) the skill required to draw the pleadings; (4) discovery procedures utilized; (5) existence of complicated legal problems; (6) the time required to try the case; (7) whether written briefs were required; and (8) whether an appeal to this court is involved.

Grode v. Grode, 1996 SD 15, ¶ 38, 543 N.W.2d 795, 804 (citing Garnos v. Garnos, 376 N.W.2d 571, 575 (S.D.1985)); see also, Crisman, 2004 SD 103, ¶ 29, 687 N.W.2d 507, 514.

[¶ 20.] Furthermore, “[t]his Court has consistently required trial courts to enter findings of fact and conclusions of law when ruling on a request for attorney fees.” Crisman, 2004 SD 103, ¶ 30, 687 N.W.2d at 514 (citing Hoffman v. Olsen, 2003 SD 26, ¶ 10, 658 N.W.2d 790, 793). “The trial court is required ‘to make specific findings based upon the factors.’ ” Id. (quoting Duffy v. Cir. Ct., Seventh Jud. Cir, 2004 SD 19, ¶ 18, 676 N.W.2d 126, 134).

[¶ 21.] In this case, the trial court made a finding in its judgment and decree of divorce and in its findings of fact and conclusions of law that “Robert shall pay to Joyce the sum of $6,600.00 for and as attorney fees.” This fails to comply with our requirements set forth above. Thus, we reverse and remand for reconsideration of the attorney fees issue in accordance with our settled procedure.

[¶ 22.] Robert and Joyce each submitted a motion for appellate attorney fees, supported by itemized statements of services performed and costs. We award Joyce the sum of $3,000 in appellate attorney fees.

[¶23.] Robert has also raised various other issues concerning the trial court’s division of marital property. We have reviewed them and find them to be without merit.

[¶ 24.] Affirmed in part and reversed and remanded in part.

[¶ 25.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.


source: Caselaw Access Project

author: CADY, Justice.

license: Public Domain

text:
    Nicholas REILLY, Dennis Reilly, and Marcia Reilly, Appellees, v. Christopher J. ANDERSON, Michael M. Anderson, and IMT Insurance Company, Appellants, Alan J. Naughton and Richard Naughton, Appellees.
    No. 04-1825.
    Supreme Court of Iowa.
    Dec. 8, 2006.
    Rehearing Denied Feb. 21, 2007.

      John B. Grier of Cartwright, Druker & Ryden, Marshalltown, for appellant IMT Insurance Company.
    Brian Yung of Klass Law Firm, L.L.P., Sioux City, for appellants Andersons.
    John M. Trewet of Rutherford, Trewet & Knuth, Atlantic, for appellees Reillys.
    William H. Roemerman of Crawford, Sullivan, Read & Roemerman, P.C., Cedar Rapids, for appellees Naughtons.
   CADY, Justice.

In this case, we must primarily decide whether the theory of concerted action is compatible with our statutory comparative fault principles. We hold the theory of concerted action, despite requiring joint and several liability among concerted actors, is compatible with Iowa’s Comparative Fault Act (CFA). We reverse the district court’s decision holding otherwise, and remand for a new trial.

I. Background Facts and Proceedings.

On August 11, 2000, Christopher Anderson (Anderson), Alan Naughton (Naughton), and Nicholas Reilly (Reilly) set out in a Jeep owned by Anderson’s father to go fishing at a pond outside Marshalltown. Anderson drove, Naughton rode as the front seat passenger, and Reilly sat in the back. On the way to the pond, Anderson produced a marijuana water bong. He asked Naughton to hold the steering wheel for him so he could take a hit off the bong. Naughton grabbed the steering wheel of the vehicle with his hand from his passenger seat position while the car was traveling at 50-55 miles an hour. During this time, control of the vehicle was lost and the vehicle crashed into the ditch. Reilly was severely injured.

Reilly and his parents (the Reillys) sued Anderson and his father (the Andersons); Naughton and his father, Richard Naugh-ton, who owned some equipment that was unsecured in the cargo area of the Jeep when it crashed; and IMT Insurance Company (IMT), the Reillys’ underinsured motorist insurance carrier. Richard Naughton obtained summary judgment as to his nonliability, and the case proceeded to trial against the remaining parties.

The jury returned a verdict finding Anderson sixty percent at fault, and Naughton and Reilly both twenty percent at fault. The jury found Reilly sustained $345,000 in damages, and his parents incurred $202,030.09 in damages.

All parties filed post-trial motions regarding the district court’s entry of judgment. IMT, the Andersons, and the Reil-lys moved to enter judgment against Naughton and Anderson jointly and severally for the damages (reduced, of course, by Reilly’s twenty percent fault). Naugh-ton, on the other hand, moved for judgment notwithstanding the verdict or, in the alternative, a new trial. Naughton argued in his motion for JNOV there was no evidence he knew Anderson’s conduct was negligent. In his alternative argument, Naughton made three claims for a new trial. First, there was no evidence he knew Anderson’s conduct was negligent. Second, IMT was severed from trial and then rejoined as an interested party. Third, the court would violate Iowa Code section 668.3(5) (2005) by entering judgment against him and Anderson jointly. The Andersons also filed a motion for a new trial. They argued the court erred in failing to instruct the jury on a joint-enterprise theory, and on Reilly’s failure to mitigate damages. Finally, IMT filed a conditional motion for new trial, arguing the court erred in failing to submit its requested instructions to the jury.

The district court denied all the motions. The court refused to enter a judgment holding Naughton and the Andersons jointly and severally liable, citing Iowa Code section 668.4. It reduced Reilly’s and his parents’ damages by twenty percent, entitling Reilly to $276,000 and his parents to $161,624.07. The court entered a judgment for Reilly against Naughton for twenty percent of Reilly’s damages— $69,000 (plus $4,909.06 in prejudgment interest). The court entered a judgment for Reilly against the Andersons for sixty percent of Reilly’s damages — $207,000 (plus $14,729 in prejudgment interest). Because Anderson was more than fifty percent at fault, the Andersons were jointly and severally liable for Reilly’s judgment against Naughton. Additionally, the court entered a judgment for Reilly’s parents against Naughton for twenty percent of the parents’ damages — $40,406.02 (plus $3,606.91 in prejudgment interest). The court also entered a judgment for Reilly’s parents against the Andersons for sixty percent of their damages — $121,218.05 (plus $10,820.72 in prejudgment interest). Moreover, the Andersons were jointly and severally liable on the Reillys’ judgment against Naughton. Thus, the judgment for the Reillys against Naughton totaled $117,921.99, and the judgment for the Reil-lys against the Andersons totaled $353,767.77. The Andersons only had $250,000 in insurance coverage, so they were underinsured by $103,767.77. However, the Reillys had $100,000 in UIM coverage from IMT, so the court entered a judgment against IMT to pay the Reillys $100,000.

The Andersons and IMT appealed, and Naughton and the Reillys cross-appealed. The Andersons and IMT argue the case should be remanded with instructions to enter judgment jointly and severally against the Andersons and Naughton. In the alternative, they argue for a new trial, claiming the court failed to properly instruct the jury on an acting-in-concert or joint enterprise theory. In his cross-appeal, Naughton claims the court should have directed a verdict for him because there was no evidence to suggest Naugh-ton was guilty of aiding and abetting. In addition, Naughton argues jury instruction No. 20 did not accurately state the law, and if it did, there was insufficient evidence to find him negligent under the court’s instructions. The Reillys join the appellants Anderson and IMT in their arguments, and add in their cross-appeal that we should further modify the district court’s order by eliminating Reilly’s twenty-percent assignment of fault because it was not supported by substantial evidence.

II. The Andersons’ and IMT’s Appeal (the Reillys Join): Whether Naughton is Jointly and Severally Liable.

A. Standard of Review.

Because the court’s decision was based on the interpretation of a statute, we review the court’s refusal to enter judgment against the Andersons and Naughton jointly and severally for correction of errors at law. See In re Detention of Cubbage, 671 N.W.2d 442, 444 (Iowa 2003) (“Our review of the district court’s construction and interpretation of the statute is for correction of errors at law.” (citing In re Detention of Swanson, 668 N.W.2d 570, 575 (Iowa 2003))). Similarly, “[o]ur scope of review on objections to [jury] instructions is on assigned error.” State v. Maghee, 573 N.W.2d 1, 8 (Iowa 1997).

B. Preservation of Error.

Naughton first argues error was not preserved on this issue because IMT and Anderson failed to object to jury instruction No. 24. That instruction read, “If you assign to a Defendant less than fifty percent of the total fault, that Defendant will only be liable to the extent of the percentage of fault assigned by you.” Naughton claims the appellants’ argument in favor of joint and several liability is essentially an argument against instruction No. 24 because Naughton was not found fifty percent or more at fault. Therefore, Naugh-ton claims this objection was not preserved for appeal because neither IMT nor Anderson objected to instruction No. 24. As such, Naughton argues, it became the “law of the case.” State v. Taggart, 430 N.W.2d 423, 425 (Iowa 1988) (“Failure 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.’ ” (quoting Froman v. Perrin, 213 N.W.2d 684, 689 (Iowa 1973))).

Even assuming the appellants’ claim for joint and several liability is really an objection to instruction No. 24, we believe the appellants sufficiently objected to that instruction so that error was preserved and instruction No. 24 did not become “the law of the case.” To properly preserve error, the appellants must have “speciffied] the subject and grounds of the objection.” Maghee, 573 N.W.2d at 8 (citing State v. Hepperle, 530 N.W.2d 735, 738 (Iowa 1995)). Furthermore, the “objection must [have] be[en] sufficiently specific to alert the district court to the basis for the complaint so that if there is error the court can correct it before submitting the case to the jury.” Id. Otherwise, “[a] party’s general objection to an instruction preserves nothing for review.” Id.

It is true the Andersons and IMT did not specifically object to instruction No. 24. But they did object to instruction No. 20, and counsel for IMT made the following record at trial when the court heard the parties’ objections to jury instructions:

I want to be sure that we are not agreeing to the fact that joint liability is not an issue in this cause by our objections to the instructions because I think that the way the court has submitted this issue, that in post-trial motions we will still be able to identify that and can correct it. And I just don’t want anything that we’re saying about the instructions to preclude a post-trial motion.
And what I mean is that if they would find Anderson 40 percent at fault and Naughton 30 percent at fault, the only— if the doctrine of joint liability would apply, under the instructions that have been given a post-trial motion could be made where the court would make them jointly and severally liable for that combined fault. And I want to make sure that that issue is preserved by the objections that we’ve made to these instructions.

Counsel for the Reillys and the Andersons joined in these remarks. We believe this is “sufficiently specific to alert the district court to the basis for the[ir] complaint.” Id. The appellants made known the subject for their complaint — the application of joint and several liability, and also the grounds for their complaint — that joint and several liability could still apply despite the defendants being found less than fifty percent at fault. This is the same argument they make on appeal. Cf. id. (finding the appellant’s present contention on appeal, and the arguments in support of it, were not the same as the objections made at trial). Even if the objection was not ideal and “defective,” it was not an inadequate general objection. See Froman, 213 N.W.2d at 689-90 (“To be adequate an objection [to a jury instruction] must advise the court of the basis for complaint and the real criterion is whether the objection alerted the trial court to the claimed error. Even a defective objection may accomplish that purpose.”). The objection was adequate and the error was preserved.

C. Naughton’s Argument that Iowa Code Section 668.4 Prohibits Joint and Several Liability Against Him.

All parties save Naughton argue that jury instruction No. 20, because it was based on the Restatement (Second) of Torts section 876(b) and our decision in Heick v. Bacon, 561 N.W.2d 45 (Iowa 1997), required the district court to enter judgment against Naughton jointly and severally. Naughton rejects this argument in several ways: (1) the principles allowing imputation of negligence in section 876(b) of the Restatement (Second) of Torts are trumped by Iowa’s CFA, (2) Iowa courts have not recognized the concept of “joint drivers,” (3) the Restatement does not require joint and several liability, and (4) the cases from other states that have employed joint and several liability in this area are distinguishable. Finally, Naughton argues that if we disagree with him on this issue, we must grant a new trial rather than ordering the district court to impose joint and several liability upon Naughton.

Instruction No. 20 read:

Before the Plaintiffs can recover any damages from Alan Naughton, they must first prove all of the following propositions:
1. That Christopher Anderson was negligent in one or more of the following ways:
a. In failing to have his vehicle under control, or
b. In failing to keep a proper lookout.
2. That Alan Naughton knew that Christopher Anderson would not have control of the vehicle and/or that Christopher Anderson would not keep a proper lookout if Christopher Anderson removed his hands from the steering wheel in order to light the marijuana pipe.
3. That Alan Naughton gave substantial assistance to Christopher Anderson to enable Christopher Anderson to so conduct himself.
4. That Alan Naughton’s conduct was a proximate cause of the Plaintiffs’ damages.
5. The amount of damage.
If the Plaintiffs failed to prove any of these propositions, the Plaintiffs are not entitled to recover damages from Alan Naughton. If the Plaintiffs did prove all of these propositions, you will consider the defense of comparative fault ....

As the appellants point out, the district court based this instruction on section 876(b) of the Restatement (Second) of Torts and our decision in Heick. This section of the Restatement (Second) of Torts, entitled “Persons Acting in Concert,” reads:

For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he
(a) does a tortious act in concert with the other or pursuant to a common design with him, or
(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or
(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.

Restatement (Second) of Torts § 876, at 315 (1979). In Heick, we specifically referred to paragraph (b) as a theory of recovery for “aiding and abetting.” 561 N.W.2d at 51; see Ezzone v. Riccardi, 525 N.W.2d 388, 398 (Iowa 1994). A comment to paragraph (b) reads, “If the encouragement or assistance is a substantial factor in causing the resulting tort, the one giving it is himself a tortfeasor and is responsible for the consequences of the other’s act. ” Restatement (Second) of Torts § 876 cmt. d, at 317 (emphasis added); see Heick, 561 N.W.2d at 51-52 (quoting comment d). Thus, the Restatement (Second) of Torts specifically provides for joint and several liability when the other person gives substantial encouragement or assistance.

Because the jury assigned Naughton a percentage of fault and this was the only instruction given governing his fault, the jury must have believed the plaintiffs proved all of the propositions in the instruction. Moreover, instruction No. 20 sets forth all the elements necessary to prove “aiding and abetting.” Furthermore, we have long recognized “concert of action” — and the more specific theory of aiding and abetting — as a theory of recovery in civil cases. See, e.g., Heick, 561 N.W.2d at 51-52; Schultz v. Enlow, 201 Iowa 1083, 1088, 205 N.W. 972, 974 (1925) (“The evidence quite conclusively shows that appellants acted in concert, aiding and abetting each other both in the commission of the alleged assault and in the false imprisonment of appellee.”). Thus, the jury found Naughton liable under the principles of aiding and abetting under section 876(b) of the Restatement (Second) of Torts.

The jury, however, only found Naughton twenty percent at fault. Under the CFA this presumably means Naughton cannot be jointly and severally liable. See Iowa Code § 668.4 (providing for joint and several liability only when persons are found at least fifty percent at fault). The remaining question, then, is whether Iowa’s CFA trumps the theory of liability encompassed in section 876(b) of the Restatement (Second) of Torts. This question has never before been decided by this court.

In 1984 the General Assembly enacted Iowa’s CFA. See Iowa Code ch. 668. The CFA provides a modified form of comparative fault and replaced the pure compara-five fault principles we announced in Goetzman v. Wichern, 327 N.W.2d 742 (Iowa 1982). See Fox v. Interstate Power Co., 521 N.W.2d 762, 764 (Iowa Ct.App.1994). Under the CFA, a plaintiff cannot recover damages if he or she is more than fifty percent at fault. Iowa Code § 668.3(1). The CFA also provides that joint and several liability attaches only to those persons — excluding the plaintiff, of course — who are found fifty percent or more at fault. Id. § 668.4. We have noted that this provision regarding joint and several liability “substantially modified” its common-law equivalent. See Slager v. HWA Corp., 435 N.W.2d 349, 351 (Iowa 1989). The common law rule regarding joint and several liability allowed a plaintiff to recover the total judgment against any defendant who was liable — no matter how much fault was attributable towards him or her. See id. But under Iowa’s CFA, this rule is modified so that a defendant is jointly and severally liable for economic damages only when their fault is fifty percent or more. See Iowa Code § 668.4; Slager, 435 N.W.2d at 351; Estate of Pearson v. Interstate Power & Light Co., 700 N.W.2d 333, 348 (Iowa 2005) (“Our comparative fault act modified the common-law rule .... ”). Because of changes like this, we have recognized that “Iowa’s Comparative Fault Act represents a truly comprehensive and far-ranging modification and consolidation of Iowa tort law.” Johnson v. Junkmann, 395 N.W.2d 862, 865 (Iowa 1986).

Although “comprehensive,” the plain text of our CFA does not provide the answer to the question before us. This makes it unlike the statute involved in Hurt v. Freeland, 589 N.W.2d 551 (N.D.1999), which specifically provided joint and several liability for concerted actors. Hurt, 589 N.W.2d at 556-57. Nevertheless, we hold today that our CFA does not extinguish joint and several liability in circumstances such as these. Comment d to section 876 of the Restatement (Second) of Torts specifically requires joint and several liability when the third person gives substantial assistance. Under instruction No. 20, the jury obviously concluded that Naughton “gave substantial assistance.” The Restatement (Third) of Torts: Apportionment of Liability says “[w]hen persons are liable because they acted in concert, all persons are jointly and severally liable for the share of comparative responsibility assigned to each person engaged in concerted activity.” Restatement (Third) of Torts: Apportionment of Liability § 15, at 128 (2000). Specifically, comment a to this section provides:

[T]he rule applies when governing law determines that concerted activity took place....
The provision for joint and several liability for persons engaged in concerted action applies regardless of the rule regarding joint and several or several liability for independent negligent tort-feasors in the jurisdiction.... [I]n jurisdictions that have modified or abolished joint and several liability, the rule adopted in this Section imposes joint and several liability on all persons engaging in concerted action and, to that extent, supersedes the abolition or modification of joint and several liability.

Restatement (Third) of Torts: Apportionment of Liability § 15 cmt. a, at 129. In this case the governing law — instruction No. 20 outlining the elements required for concerted action or aiding and abetting under section 876(b) — determined that concerted activity took place. As a result, and despite Iowa’s CFA, Naughton is jointly and severally liable for the share of fault attributable to the concerted actors— i.e. Anderson and Naughton.

We do not believe the legislature’s silence regarding concerted action means our CFA meant to override the common law rule regarding concerted action. Other courts have faced similar circumstances and come to the same conclusion. See Woods v. Cole, 181 Ill.2d 512, 230 Ill.Dec. 204, 693 N.E.2d 333, 337 (1998) (holding apportionment statute inapplicable when persons act in concert under section 876 of the Restatement (Second) of Torts); Kesmodel v. Rand, 119 Cal.App.4th 1128, 1145, 15 Cal.Rptr.3d 118 (Cal.Ct.App.2004) (holding apportionment statute that eliminated joint and several liability for non-economic damages inapplicable when “damages caused by joint tortfeasors who act in concert to cause the plaintiffs harm”). Moreover, we have previously created judicial exceptions to the CFA in the areas of intentional torts, dramshop actions, and fraud. See Tratchel v. Essex Group, Inc., 452 N.W.2d 171, 180-81 (Iowa 1990) (noting actions based on fraud, dramshop liability and intentional torts are not mentioned in the CFA, and holding such actions inapplicable to the CFA because, inter alia, “had the legislature intended for the [CFA] to cover such actions, it could have easily done so”). Of course, our holdings excluding the CFA from these causes of action are fundamentally different from what we hold today regarding concerted action. They are different because the jury may still apply the CFA and apportion fault in cases where concerted action is a theory of recovery. See Slager, 435 N.W.2d at 352 (noting Iowa’s Dramshop Act “provides the exclusive remedy” and “[t]hus, no common-law cause of action ... exists”). But if they find concerted action between defendants then each concerted actor is jointly and severally liable for the total responsibility apportioned to concerted actors, despite the fifty percent rule regarding joint and several liability in the CFA. Thus, unlike dramshop, fraud and intentional tort actions, we do not exempt concerted action theories of recovery from the CFA. Instead, we create a judicial exception regarding the applicability of the CFA’s joint and several liability provisions where the legislature has not spoken.

In this same respect our holding today is fundamentally different from the decisions of the highest courts in Illinois and Maryland. In Woods, the Illinois Supreme Court stated:

A determination that a tortfeasor has acted in concert with other individuals establishes a legal relationship with those individuals. By virtue of this relationship, the tortfeasor becomes liable for the actions of those with whom he acted in concert.... Thus, while the tortfeasors who act in concert in causing a plaintiffs injury may all engage in some affirmative conduct relating to that injury, the legal relationship which exists among them eliminates the possibility of comparing their conduct for purposes of apportioning liability. Indeed, if an apportionment of liability were permitted, the act of one tortfeasor would no longer be the act of ah, and the essence of the doctrine of concerted action would be destroyed.

693 N.E.2d at 337. The court concluded that “it is legally impossible to apportion hability among tortfeasors who act in concert.” Id. ■ Because of this it held “the comparative negligence statute inapplicable to tortfeasors acting in concert.” Consumer Prot. Div. v. Morgan, 387 Md. 125, 874 A.2d 919, 953 (2005) (citing Woods, 693 N.E.2d at 337).

Maryland’s highest court “agree[d] with the Illinois Supreme Court” and similarly found “[tjortfeasors acting in concert legally are responsible for the tortious actions each commits. In such situations, there is no apportionment of liability between them.” Id. The court cited to Prosser, who stated in cases of concerted action “ ‘[t]he jury would not be permitted to apportion the damages.’” Id. (quoting William L. Prosser, Joint Torts & Several Liability, 25 Cal. L. Rev. 413, 414 (1936)). The court also noted commentary that “explained joint and several liability for concerted action as based on the difficulty of apportioning damages.” Prosser, Joint Torts & Several Liability, 25 Cal. L. Rev. at 414 n. 26 (citing John Henry Wigmore, Joint Tortfeasors & Severance of Damages; Making the Innocent Party Suffer Without Redress, 17 Ill. L. Rev. 458, 458 (1923); Roy D. Jackson, Jr., Joint Torts & Several Liability, 17 Tex. L. Rev. 399, 420-21 (1939)).

We agree that apportioning fault among concerted actors is a difficult proposition. We, however, disagree with these courts in their ultimate position that it is legally impossible to apportion liability among concerted actors. This case is demonstrative that it is certainly factually possible: the jury found Naughton and Anderson guilty as concerted actors, and yet apportioned fault between them. Where this remains factually possible, we decline to say it is legally impossible where the legislature has not clearly said it is. Accord Hurt, 589 N.W.2d at 556-57 (quoting a North Dakota statute that allows the jury to apportion fault and yet also allows the court to enter judgment jointly and severally for the combined percentages of fault attributable to concerted actors). In other words, if the legislature had clearly said principles of joint and several liability regarding concerted actors cannot operate in conjunction with our CFA, then we would certainly hold it is legally impossible to apportion liability among concerted actors. However, our legislature has voiced no opinion on the subject other than the directive in section 668.4: “In actions brought under this chapter, the rule of joint and several liability shall not apply to defendants who are found to bear less than fifty percent of the total fault assigned to all parties.” Iowa Code § 668.4. For reasons we have already discussed, this does not eliminate joint and several liability among concerted actors for their concerted share of responsibility, and it says nothing about the legal impossibility of apportioning liability among concerted actors.

We additionally note that our holding makes Naughton and Anderson jointly and severally liable for both economic and non-economic damages. The common law rule providing for joint and several liability among persons acting in concert does not distinguish between economic and non-economic damages. See Restatement (Third) of Torts: Apportionment of Liability § 15, at 128. While our CFA makes this distinction by providing those found fifty percent or more at fault are only jointly and severally liable for plaintiffs economic damages, it does not change the common law result when persons act in concert. Thus, Naughton and Anderson are jointly and severally liable for Reilly’s economic and non-economic damages. See Kesmodel, 119 Cal.App.4th at 1142-45, 15 Cal.Rptr.3d 118 (finding apportionment statute that limited defendants to several liability for non-economic damages was inapplicable when persons act in concert, and thus defendants acting in concert are jointly and severally liable for all damages).

D. Naughton’s Other Arguments Against Joint and Several Liability.

Naughton’s argument that joint and several liability does not attach because we have not recognized the concept of “joint drivers” is misplaced. Whether joint and several liability applies in this case, as it relates to Naughton, depends upon whether he was acting in concert with Anderson. Naughton does not have to be a “joint driver” to be acting in concert. Under jury instruction No. 20, which contained all the elements of concerted action under an aiding and abetting theory, the jury found Naughton guilty. As such, he was acting in concert and joint and several liability applies to the concerted responsibility.

Naughton’s argument that the Restatement does not require joint and several liability is not only misplaced, but erroneous. Naughton bases his argument on section 17 of the Restatement (Third) of Torts: Apportionment of Liability, but fails to realize that section 17 only applies to “the independent tortious conduct of two or more persons.” Restatement (Third) of Torts: Apportionment of Liability § 17, at 147. Concerted actors do not commit independent tortious conduct. IMT correctly points out in its brief that section 15 of the Restatement (Third) of Torts: Apportionment of Liability requires joint and several liability when persons act in concert. See Restatement (Third) of Torts: Apportionment of Liability § 15 cmt. a, at 129 (“The provision for joint and several liability for persons engaged in concerted action applies regardless of the rule regarding joint and several liability for independent negligent tortfeasors in the jurisdiction.”).

Finally, Naughton is correct the eases in which other states have recognized joint and several liability for concerted actors are somewhat distinguishable from the present case. Some, for example, dealt with intentional torts, see Kesmodel, 119 Cal.App.4th at 1128, 15 Cal.Rptr.3d 118, and Iowa has explicitly stated the principles of comparative fault do not apply to intentional torts, see Tratchel, 452 N.W.2d at 180-81. Thus, the argument goes, if this were a case of an intentional tort it would be easy to apply joint and several liability because such is the case in intentional torts — Iowa’s CFA does not apply. The Restatement, however, makes no distinction between intentional and unintentional torts based on concerted action theories of recovery. The relevant inquiry is whether there is concerted action.

III. Whether a Limited Remand is Appropriate.

Because of our decision regarding the application of joint and several liability, we need not address Anderson and IMT’s alternative argument for a new trial because the trial court failed to properly instruct the jury on an acting-in-concert or joint enterprise theory. We do, however, need to address Naughton’s argument that, under these circumstances, a limited remand for a judgment entry is inappropriate.

Naughton believes such a remand is inappropriate because the effect of applying joint and several liability to Naughton directly contradicts what the jury was told in instruction No. 24. The relevant part of instruction No. 24 read:

If you assign to a Defendant less than 50% of the total fault, that Defendant will only be liable to the extent of the percentage of fault assigned by you. I will order the defendants to contribute to the payment of damages awarded on the basis of the percentages of fault you insert in your answers to the questions at the end of these instructions.

Of course, the jury found Naughton only twenty percent at fault. Thus, the jury believed Naughton would not be held jointly and severally liable. We have determined, however, that because Naughton was found liable under a concert of action theory, and because joint and several liability under such a theory has not been abrogated or modified by our CFA, Naughton is jointly and severally liable for the combined fault of the concerted actors.

Naughton correctly pointed out in his reply brief that neither Anderson nor IMT responded to this argument in their briefs. At oral argument, counsel for Anderson merely made the point that he does not think a new trial is necessary. He stated the legal implication of the jury’s assessment of fault can be refined by the court.

Certainly the legal implications of a jury’s assessment of fault can be refined by the court. For example, a district court may apply joint and several liability to a defendant when it is found fifty percent or more at fault under our CFA. See Iowa Code § 668.4. Thus, if a defendant is found fifty percent at fault, and the total fault excluding plaintiffs is ninety percent, the court “refines” the fifty percent attributable to said defendant to reflect that he or she is jointly and severally liable for the entire ninety percent fault attributable to those other than the plaintiff. This does not mean, however, that the district court may erroneously mislead the jury in how it may “refine” the percentages of fault the jury assigns. Such would be the case here if we were to remand the case with instructions to hold Naughton jointly and severally liable, despite the jury’s instruction at trial that any defendant, including Naughton, would not be jointly and severally liable unless they were fifty percent or more at fault.

In Reese v. Werts Corp., 379 N.W.2d 1, 4 (Iowa 1985), we reversed and remanded the ease for a new trial for two reasons. One reason was because the trial court gave “misleading advice” in its instructions to the jury. Reese, 379 N.W.2d at 4. Regarding this misleading advice, we stated:

The jury was told that plaintiffs recovery would be reduced by the percentage that her negligence bore to the total negligence of the parties. If this were true plaintiffs recovery would have been $95,000 instead of $15,000. Having undertaken to instruct the jury on the effect of its determinations, we believe the court was required to instruct accurately.

Id. at 3. In this case, the trial court did instruct the jury upon the effect of its determinations, and as it was required to do under Iowa Code section 668.3. See Iowa Code § 668.3(5) (“If the claim is tried to a jury, the court shall give instructions and permit evidence and argument with respect to the effects of the answers to be returned to the interrogatories submitted under this section.”).

In Schwennen v. Abell, 430 N.W.2d 98 (Iowa 1988), we approved of our holding in Reese and stated the following:

A salient feature of our comparative fault legislation is the provision in section 668.3(5) that the jury must be made aware of the effect of its fault apportionment on the claimant’s right of recovery. In Reese, 379 N.W.2d at 4, we found it to be reversible error for the court to fail to instruct on this matter or to give misleading instructions with respect thereto. The instructions given the jury in the present case were based on the premise that William could be subjected, as he was, to some allocation of causal fault. When William’s fault is disregarded the interpolated verdicts suggested by Mary will have a substantially different effect on the Schwennen defendants and Floyd County than the jury would have perceived them to have under the trial court’s instructions. This circumstance, we believe, requires that the apportionment of fault among the remaining parties must be tried anew.

Schwennen, 430 N.W.2d at 104. We likewise approved of our holding in Reese, and also Schwennen, in a more recent opinion. See Wilson v. Farm Bureau Mut. Ins. Co., 714 N.W.2d 250, 260-61 (Iowa 2006).

In Wilson we made it clear that “[i]m~ plicit in both Reese and Schwennen was the fact that the erroneous and misleading instructions tainted the jury verdicts resulting in prejudice to the parties challenging the verdicts.” 714 N.W.2d at 261. The samé is the case here. Under our holding, which changes the effect of the verdict and which Naughton challenges, Naughton suffers prejudice because joint and several liability applies. As a result, the case must be tried anew.

IV. Naughton’s and the Reillys’ Cross-Appeal.

Because of our holding regarding the application of joint and several liability, as well as the necessity for a remand in this case, the only remaining arguments that could require our disposition are those that might impact the new trial on remand. We find the only arguments that may have such an impact are Naughton’s argument that jury instruction No. 20 inaccurately stated the law, and the Reillys’ argument that substantial evidence does not support the jury’s finding that Reilly was twenty percent at fault.

Preliminarily, we observe that Naughton may not have preserved this issue for appeal. Naughton did object to instruction No. 20, but did not argue it misstated the law. See Collister v. City of Council Bluffs, 534 N.W.2d 453, 454 (Iowa 1995) (“We consider only the objections to the instructions that were properly raised in the district court proceedings.”). Nevertheless, even assuming this issue was preserved for appeal, instruction No. 20 accurately stated the law.

Aiding and abetting, as a theory of recovery and as embodied in instruction No. 20, does not require Naughton to consciously desire Anderson to lose control of the vehicle or that Naughton consciously wanted Anderson to fail in his duty to look out. IMT correctly points out that Naugh-ton has confused the concepts of aiding and abetting in tort and aiding and abetting the violation of criminal statute. In Heick, we said aiding and abetting under Iowa Code section 703.1 — a criminal statute — required that there be evidence the defendant “ ‘participate^] in it as something that he wishes to bring about.’ ” 561 N.W.2d at 54 (quoting State v. Lott, 255 N.W.2d 105, 108 (Iowa 1977), overruled by State v. Allen, 633 N.W.2d 752, 756 (Iowa 2001) (overruling the holding in Lott “that one who aids only the transferee of drugs cannot be found guilty of delivery”)). This is not the case when the theory is advanced in tort. To aid and abet a violation of a rule of the road, all that is required is that there be “substantial evidence that [the defendant] encouraged or assisted [another] in committing these violations.” Id. at 53; accord Restatement (Second) of Torts § 876 cmt. d, at 317. This does not require that Naughton consciously desire or want Anderson to lose control of the vehicle or fail to keep a proper lookout. It simply requires Naughton to know Anderson’s actions were tortious and that Naughton gave substantial assistance. See Restatement (Second) of Torts § 876 cmt. d, at 317 (imposing liability on the person who aids and abets regardless of whether the principal “knows his act is tortious,” but only when the person who aids and abets gives substantial assistance and knows the act, or intended act, is tortious). This is exactly what instruction No. 20 required, and it therefore correctly stated the law.

We do not address the Reillys’ claim on cross-appeal that there was insufficient evidence to support the finding by the jury of his fault. The Reillys did not preserve error on this claim at trial, and they are not entitled to challenge the sufficiency of the evidence to sustain the finding of Reilly’s fault for the first time on appeal from a jury verdict. See Meier v. Senecaut III, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal.”); cf. In re A.R., 316 N.W.2d 887, 888, 889 n. 2 (Iowa 1982) (“In ordinary civil cases tried to the court, the sufficiency of the evidence may be challenged on appeal even though not raised below.” (Emphasis added.)); Iowa R. Civ. P. 1.904(2). Reilly’s allocation of fault, however, must be determined anew on remand.

The new trial on remand shall be limited to issues of fault. The damages upon retrial shall be the damages established by the jury at the initial trial. See Schwennen, 430 N.W.2d at 104.

V. Conclusion.

The jury found Naughton liable as a concerted actor, and as such he is jointly and severally liable for the total share of responsibility among the concerted actors. Our CFA does not change this result. Nevertheless, this case must be remanded for a new trial because instruction No. 24 did not allow such a result. Moreover, instruction No. 20 was an accurate statement of the law. Finally, the Reillys’ failed to preserve error on their argument in their cross-appeal. The remaining issues either do not require our determination because of our holding, or are not addressed because they were not preserved for appeal or are meritless.

REVERSED AND REMANDED.

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

      . Section 668.3(5) provides: “If the claim is tried to a jury, the court shall give instructions and permit evidence and argument with respect to the effects of the answers to be returned to the interrogatories submitted under this section." Iowa Code § 668.3(5) (2005). Naughton claimed this section was not followed because the court instructed the jury that if it assigned less than fifty percent fault to a defendant, "that Defendant will only be liable to the extent of the percentage of fault assigned by you.” If the court entered judgment against Naughton jointly with Anderson, Naughton would effectively be liable for eighty percent of the fault, even though the jury only assigned him twenty percent.

      . Section 668.4 provides: "In actions brought under this chapter, the rule of joint and several liability shall not apply to defendants who are found to bear less than fifty percent of the total fault assigned to all parties.” Id. § 668.4.

      . Likewise, the comments concerning liability for those found liable under paragraph (a) and (c) also impose joint and several liability. See Restatement (Second) of Torts § 876 cmt. a, at 316 ("Whenever two or more persons commit tortious acts in concert, each becomes subject to liability for the acts of the others, as well as for his own acts.”); id. § 876 cmt. e, at 318 ("When one personally participates in causing a particular result in accordance with an agreement with another, he is responsible for the result of the united effort if his act, considered by itself, constitutes a breach of duty and is a substantial factor in causing the result, irrespective of his knowledge that his act or the act of the other is tortious.”).

      . We also recognize concert of action as a theoiy of criminal liability. See, e.g., State v. Jefferson, 574 N.W.2d 268, 277 (Iowa 1997) (quoting Iowa Code § 703.2 which imposes joint criminal liability for those “acting in concert"); Iowa Code § 703.2. Moreover, while we have cited with approval section 876, "Persons Acting In Concert,” of the Restatement (Second) of Torts many times, we typically refer to theories advanced under the section more specifically as "civil conspiracy” or "aiding and abetting.” See, e.g., Ezzone, 525 N.W.2d at 397-98 (noting plaintiff's theory of recovery makes the defendants liable "because they allegedly acted in concert,” and that under the Restatement (Second) of Torts liability could be imposed because they were involved in a conspiracy as defined in paragraph (a), or because they aided and abetted each other as defined under paragraph (b) (citing Tubbs v. United Cent. Bank, 451 N.W.2d 177, 182 (Iowa 1990))).

      . The North Dakota statute read:
      When two or more parties are found to have contributed to the injury, the liability of each party is several only, and is not joint, and each party is liable only for the amount of damages attributable to the percentage of fault of that party, except that any persons who act in concert in committing a tortious act or aid or encourage the act, or ratifies or adopts the act for their benefit, are jointly liable for all damages attributable to their combined percentage of fault.

        Hurt, 589 N.W.2d at 556-57 (emphasis added) (quoting N.D.C.C. § 32-03.2-02).

      . In its brief IMT argues that "Anderson and Naughton would be jointly and severally responsible for their negligence since the combined negligence was more than 50 percent of the total fault.” Under our holding today IMT is correct that Anderson and Naughton are jointly and severally liable for their fault, but not because their combined fault was more than fifty percent. Instead, they are jointly and severally liable because they were concerted actors. What is significant in this case is that Anderson and Naughton were the only defendants found liable. In other words, no other defendants committed independent tortious acts. Thus, we express no opinion, and need not hold, whether circumstances involving both concerted actors and independent tortfeasors would require the concerted actors to be jointly and severally liable for the independent tortfeasor’s percentage of fault. For example, we need not decide whether concerted actors would be jointly and severally liable for the entire fault assigned to all defendants in a situation where an independent third party had been assigned fifty-five percent fault, and concerted actors # 1 and # 2 had been assigned faults of thirty-five percent and ten percent, respectively (although the independent tort-feasor would obviously be jointly and severally liable for economic damages under Iowa's CFA, and, under our holding today, the concerted actors would at least be jointly and severally liable for forty-five percent of plaintiffs economic and non-economic damages). Notably, however, in this example the concerted actors’ combined fault is less than the fifty percent threshold required for joint and several liability under Iowa's CFA. If the concerted actors' combined fault was above the fifty percent threshold, there is a better case for imposing joint and several liability on the concerted actors for the fault assignable to all defendants. This, however, could impose joint and several liability for a concerted actor who only was assigned a minimal percentage, and yet as a whole, the concerted actors’ percentage of fault exceeded fifty percent. See Restatement (Third) of Torts: Apportionment of Liability § 15 Reporters Note cmt. a, at 130-32 (noting “research has uncovered only one case that explicitly resolves the issue of whether defendants acting in concert are jointly and severally liable not only for their own shares of comparative responsibility but for the share of comparative responsibility apportioned to an independent tortfea-sor as well” and citing to Robinson v. June, 167 Misc.2d 483, 637 N.Y.S.2d 1018 (Sup.Ct.1996)). We need not decide this situation now, and will wait until such a case presents itself, or the legislature makes itself more clear. See id. § 15 cmt. a, at 129 ("This Restatement takes no position on whether a concerted-action tortfeasor is also jointly and severally liable for the share of comparative responsibility assigned to an independent tortfeasor who is also liable for the same indivisible injury.”).


author: STREIT, Justice.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. William T. MORRISON, Respondent.
    No. 06-1390.
    Supreme Court of Iowa.
    Jan. 26, 2007.

      Charles L. Harrington and Teresa A. Vens, Des Moines, for complainant.
    William T. Morrison, Mason City, respondent, pro se.
   STREIT, Justice.

A lawyer had a sexual relationship with a client he was representing in a dissolu-. tion proceeding. Because such conduct may be harmful to the client’s interest and reflects poorly on the legal profession, we suspend the attorney’s license for three months.

I. Facts and Prior Proceedings

William Morrison was admitted to the Iowa bar in 1989. He presently has a law office in Mason City. In June 2005, Morrison reported to the Iowa Supreme Court Attorney Disciplinary Board (“Board”) he “engaged in a sexual relationship with a female client while representing her in a dissolution proceeding.” Morrison represented this client from October 2004 through February 2005. They had sex on several occasions from November 2004 through March 2005. Morrison did not have a personal relationship with this client prior to November 2004.

The Board filed a complaint against Morrison alleging he violated the Iowa Code of Professional Responsibility for Lawyers by engaging in a sexual relationship with a client. In lieu of an evidentia-ry hearing before the Grievance Commission, the Board and Morrison agreed to submit the matter upon stipulation. The parties stipulated to the facts above. Morrison acknowledged his conduct was unethical. The Board noted Morrison cooperated with its investigation. The parties also included with the stipulation a private admonition Morrison received from the Board in March 2004. Morrison was admonished for “solicitation of a dissolution client for a social relationship by reason of that dissolution client’s ‘attractiveness.’ ” The parties jointly recommend Morrison’s conduct warrants suspension of his Iowa law license for sixty days. The Grievance Commission recommends Morrison’s license to practice law be suspended for six months and that he enter and complete a counseling program to address his “boundary issues.” Morrison reports he has already completed such a counseling program with a psychologist in addition to marriage counseling.

II. Scope of Review

We review the findings of the Grievance Commission de novo. Iowa Ct. R. 35.10(1). We give weight to the Commission’s findings but we are not bound by those findings. Iowa Supreme Ct. Attorney Disciplinary Bd. v. McGrath, 713 N.W.2d 682, 695 (Iowa 2006). The Board has the burden to prove disciplinary violations by a convincing preponderance of the evidence. Iowa Supreme Ct. Attorney Disciplinary Bd. v. D'Angelo, 710 N.W.2d 226, 230 (Iowa 2006). “This burden is ‘less than proof beyond a reasonable doubt, but more than the preponderance standard required in the usual civil case.’ ” Id. (quoting Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004)).

III. Merits

Morrison admits he had a sexual relationship with a client. This is a patent violation of Iowa Code of Professional Responsibility for Lawyers DR 5-101(B) (lawyer shall not engage in sexual relations with a client) and DR 1-102(A)(1) and (6) (lawyer shall not violate a disciplinary rule or engage in any other conduct that adversely reflects on the fitness to practice law). “Professional responsibility involves many gray areas, but sexual relationships between attorney and client is not one of these. Such conduct is clearly improper.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Furlong, 625 N.W.2d 711, 714 (Iowa 2001). Before determining the appropriate sanction, we review the sound reasons for prohibiting attorney-client sexual relationships.

First, “[t]he unequal balance of power in the attorney-client relationship, rooted in the attorney’s special skill and knowledge on the one hand and the client’s potential vulnerability on the other, may enable the lawyer to dominate and take unfair advantage.” Iowa Code of Profl Responsibility EC 5-25. This is why the client’s consent is irrelevant. We have previously stated “the professional relationship renders it impossible for the vulnerable layperson to be considered ‘consenting.’ ” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hill, 540 N.W.2d 43, 44 (Iowa 1995) (Hill II); accord Furlong, 625 N.W.2d at 714.

Second, a sexual relationship between attorney and client may be harmful to the client’s interest. This is true in any legal representation but “presents an even greater danger to the client seeking advice in times of personal crises such as divorce, death of a loved one, or when facing criminal charges.” Iowa Code of Prof'l Responsibility EC 5-25.

Third, an attorney-client sexual relationship may prevent the attorney from competently representing the client. An attorney must be able to objectively evaluate the client’s case. The American Bar Association stated “[t]he roles of lover and lawyer are potentially conflicting ones as the emotional involvement that is fostered by a sexual relationship has the potential to undercut the objective detachment that is often demanded for adequate representation.” ABA Comm, on Ethics and Prof'l Responsibility, Formal Op. 92-364 (1992).

Finally, an attorney initiating a sexual relationship with a client or attempting to do so may undercut the client’s trust and faith in the lawyer. “Clients may rightfully expect that confidences vouchsafed to the lawyer will be solely used to advance the client’s interest, and will not be used to advance the lawyer’s interest, sexual or otherwise.” Iowa Code of Prof'l Responsibility EC 5-25.

We now turn to the appropriate sanction. We consider

the nature and extent of the respondent’s ethical infractions, his fitness to continue practicing law, our obligation to protect the public from further harm by the respondent, the need to deter other attorneys from engaging in similar misconduct, our desire to maintain the reputation of the bar as a whole, and any aggravating or mitigating circumstances.

Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Kallsen, 670 N.W.2d 161, 164 (Iowa 2003). We give the discipline recommended by the Grievance Commission its due respect although “ ‘the matter of sanction is solely within the authority of this court.’ ” McGrath, 713 N.W.2d at 703 (quoting Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sloan, 692 N.W.2d 831, 833 (Iowa 2005)). Ultimately, we determine the appropriate discipline based on the unique facts of each case, loica Supreme Ct. Attorney Disciplinary Bd. v. Zenor, 707 N.W.2d 176, 178 (Iowa 2005).

This court does not tolerate attorney-client sexual relationships. See McGrath, 713 N.W.2d at 703-04 (three-year suspension for attempting to obtain and extorting sexual favors in exchange for legal services); Furlong, 625 N.W.2d at 714 (eighteen-month suspension for engaging in a sexual relationship with one client and encouraging her to withdraw her complaint with the Board and sexually harassing another client); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Steffes, 588 N.W.2d 121, 125 (Iowa 1999) (two-year suspension for attorney who took photographs of partially-clothed client under pretext of documenting her back injury); Hill II, 540 N.W.2d at 45 (twelve-month suspension for making unwelcome sexual advances toward client); Comm. on Prof'l Ethics & Conduct v. Hill, 436 N.W.2d 57, 58-59 (Iowa 1989) (Hill I) (three-month suspension for accepting vulnerable client’s offer to have sex in exchange for money); Comm. on Prof'l Ethics & Conduct v. Durham, 279 N.W.2d 280, 285-86 (Iowa 1979) (reprimand for attorney kissing and embracing inmate client). In the present case, the Grievance Commission recommends Morrison’s license to practice law be suspended for six months and that he be required to complete a counseling program to address his “boundary issues.” The Board on the other hand recommends a sixty-day suspension because “this case does not involve aggravating factors such as forced sexual advances or commercial exploitation.”

Our review is hindered by a limited record. Based on the parties’ stipulation, Morrison’s conduct does not appear to be particularly egregious in comparison to our previous cases involving attorney-client sexual relationships. But even a purely consensual sexual relationship between attorney and client is clearly prohibited by DR 5-101(B) for the reasons we have already stated.

Like this case, Hill I involved an attorney representing a client in a dissolution action. There, we said

A lawyer undertaking a divorce action must recognize reconciliation is possible and may be in the best interest of his client. An attorney must be aware that the actions of the client and attorney may affect negotiations in the dissolution case, including determination of custody and visitation of minor children. Sexual intercourse between the lawyer and a client seeking a dissolution of marriage carries a great potential of prejudice both to the client and to the minor children of the marriage.

Hill I, 436 N.W.2d at 59. Morrison’s client and her husband had at least one minor child. We do not know from the record if the relationship between Morrison and his client prejudiced her in the dissolution action. Nevertheless, at least the potential for harm existed and exists in any attorney-client representation. See Steffes, 588 N.W.2d at 123 (sexual harassment by attorney made client uncomfortable going to attorney’s office so client did not seek attorney’s advice regarding pending criminal charges).

Moreover, Morrison has previously been admonished for making a sexual advance toward another client. He became sexually involved with the client in this particular case just eight months after the admonishment. Clearly, Morrison has not learned his lesson. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lemanski, 606 N.W.2d 11, 14 (Iowa 2000) (“The prior disciplinary history of an attorney is a factor we consider in imposing sanctions.”). A suspension of Morrison’s license to practice law is necessary and appropriate. We hereby suspend Morrison’s license to practice law in Iowa for a minimum of three months.

IV. Conclusion

Morrison is suspended indefinitely from the practice of law with no possibility of reinstatement for at least three months. This suspension shall apply to all facets of the practice of law as provided in Iowa Court Rule 35.12(3) and requires notification of clients as outlined in Iowa Court Rule 35.21. Upon any application for reinstatement, Morrison must establish that he has not practiced law during the suspension period and he has in all ways complied with the requirements of Iowa Court Rule 35.13. Costs are taxed to Morrison pursuant to Iowa Court Rule 35.25(1).

LICENSE SUSPENDED.

      . This court adopted the Iowa Rules of Professional Conduct effective July 1, 2005. Because Morrison’s alleged misconduct occurred before July 1, 2005, the Iowa Code of Professional Responsibility for Lawyers governs. In substance, the rules regarding attorney-client sexual relationships remain unchanged. See Iowa R. of Prof’l Conduct 32:1.8(j).


author: APPEL, Justice.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Colleen Florence ALEXANDER, Respondent.
    No. 06-1458.
    Supreme Court of Iowa.
    Feb. 2, 2007.

      Charles L. Harrington and David Grace, Des Moines, for complainant.
    Colleen F. Alexander, Cedar Falls, pro se.
   APPEL, Justice.

In this matter, this court reviews Findings of Fact, Conclusions of Law, and the Recommendation of the Iowa Supreme Court Grievance Commission regarding the respondent, Colleen Alexander. Based on admissions and a stipulation, the Commission recommends that Alexander’s license to practice law be suspended for ninety days. The Commission further recommends that the respondent should be required to submit to an evaluation by a licensed health care professional. Upon review of the record, we conclude that the proper sanction for Alexander is a public reprimand.

I. Factual Background.

Alexander has no prior history of discipline. The underlying proceeding against Alexander was based upon a complaint in a single case. The complaint alleged that Alexander had failed to properly prepare for a hearing on a child custody matter. Specifically, the complaint alleged that Alexander failed to return multiple client phone calls in the weeks prior to the proceeding, failed to provide financial information to opposing counsel in compliance with discovery deadlines, failed to subpoena ten of eleven witnesses for the hearing, failed to timely file a post-hearing financial statement required by the district court, and failed to file post-hearing motions. The complainant states that the end result was that information about tax and financial issues, including overtime and financial commitments of the complainant, were not presented to the district court and that he was not able to impeach the testimony of his ex-wife. The complaint further alleges that the omissions of Alexander amount to neglect under Iowa Code of Professional Responsibility DR 6-101 (A) and DR 7-101(A). After the ethics complaint was filed, Alexander failed to respond to three notices of the Iowa Supreme Court Attorney Disciplinary Board. Ultimately, Alexander entered into a stipulation with the Board. In the stipulation, Alexander admitted all of the allegations in the complaint.

The parties further stipulated that the day after the hearing in question, Alexander was hospitalized for a mental breakdown. The stipulation states that Alexander suffers from depression, anxiety disorder, and obsessive-compulsive disorder. The stipulation further provides that Alexander does not intend to practice law in the future, as it is too confrontational for her, but might wish to use her legal background at some time in law-related office work.

The Commission entered an order in this matter on September 15, 2006. The Commission found that respondent’s neglect consisted primarily of not having completed discovery prior to the hearing, not having called certain witnesses at the hearing, and not being available after the hearing to handle posttrial matters. The Commission adopted the stipulation of the parties and, based on its findings, recommended that Alexander’s license to practice law be suspended with no possibility of reinstatement for a period of ninety days. The Commission further recommended that the respondent should be required to provide this court with an evaluation by a licensed health care professional prior to seeking reinstatement.

II. Scope of Review.

Our review of the findings of the Grievance Commission is de novo. Iowa Supreme Ct. Attorney Disciplinary Bd. v. Moonen, 706 N.W.2d 391, 396 (Iowa 2005). The Board must establish by a convincing preponderance of the evidence that Alexander committed the violations. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Postma, 555 N.W.2d 680, 681 (Iowa 1996). The matter of sanction is solely within the authority of this court. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sloan, 692 N.W.2d 831, 833 (Iowa 2005). Each disciplinary case must be judged based on its own facts. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Moorman, 683 N.W.2d 549, 553 (Iowa 2004).

III. Discussion.

In Moorman, we noted that neglect has “generally been recognized to involve indifference and a consistent failure to perform those obligations that a lawyer has assumed, or a conscious disregard for the responsibilities a lawyer owes to a client.” 683 N.W.2d at 551 (citations omitted). Neglect cannot be found if the acts or omissions complained of were inadvertent or the result of an error of judgment made in good faith. Comm. on Prof'l Ethics & Conduct v. Rogers, 313 N.W.2d 535, 536 (Iowa 1981).

The stipulation in this case states that the “neglect” consisted primarily of not having completed discovery prior to the hearing, not calling certain witnesses at trial, and not being available to handle posttrial motions. The record does not reflect what effort Alexander did make, what witnesses were, in fact, called, and what evidence was presented at the hearing.

Alexander, however, did not respond to the allegations in the Board’s complaint, which included an allegation of neglect. When the Board filed a motion that the allegations in the complaint be deemed admitted, Alexander did not resist the motion and consented to entry of an order sustaining the motion. Admissions may be relied upon to meet the evidentiary burden of the Board. Comm. on Prof'l Ethics & Conduct v. Jackson, 391 N.W.2d 699, 700 (Iowa 1986). As a result of the binding admissions, the charge of neglect is supported by a convincing preponderance of the evidence.

In addition, we note that Alexander on three occasions failed to respond to the Board’s notice regarding its investigation. Under the rules applicable at the time the complaint was made, the failure to respond to the Board’s notice is an independent violation of the disciplinary rules. DR 1-103(A)(5), DR 1-102(A)(6); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sul lins, 556 N.W.2d 456, 457 (Iowa 1996); Comm. on Prof'l Ethics & Conduct v. Pracht, 505 N.W.2d 196, 199 (Iowa 1993).

In a number of cases involving no prior history of discipline, neglect of one matter, and failure to respond to the Commission, this court has issued a public reprimand for attorney misconduct. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sherman, 619 N.W.2d 407, 410 (Iowa 2000) (neglect of one domestic relations matter and failure to cooperate with Board); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Erbes, 573 N.W.2d 269, 271 (Iowa 1998) (public reprimand for neglect of matter and failure to cooperate with Board); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sather, 534 N.W.2d 428, 431 (Iowa 1995) (public reprimand for neglect of one estate and failure to cooperate with Board). Upon review of the facts of this case, we hold that Alexander should be publicly reprimanded for her conduct.

IV. Disposition.

The respondent Colleen Alexander is publicly reprimanded for her conduct as described in this opinion. Costs are assessed against Alexander pursuant to Iowa Court Rule 35.25(1).

ATTORNEY REPRIMANDED.


author: HECHT, Justice.

text:
    STATE of Iowa, Appellee, v. Khrista Kay ERDMAN, Defendant, Always Affordable Bail Bonds, Inc. and Ranger Insurance, Appellants.
    No. 04-1661.
    Supreme Court of Iowa.
    Feb. 2, 2007.

      Brent D. Rosenberg of Rosenberg, Stowers & Morse, Des Moines, for appellants.
    Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, Stephen H. Holmes, County Attorney, and Timothy C. Meals, Assistant County Attorney, for appellee.
   HECHT, Justice.

Ranger Insurance Company and its agent, Always Affordable Bail Bonds, Inc., appeal from a judgment in the amount of $26,500 entered by a district associate judge on an appearance bond. We conclude the court lacked subject matter jurisdiction to enter the judgment. We therefore vacate the judgment and remand to the district court for further proceedings consistent with this opinion.

I. Factual Background and Proceedings.

Khrista Kay Erdman was charged with two forgeries and two identity thefts in Story County on July 8, 2004. She was arrested and then released after posting an appearance bond in the amount of $26,500. The bond was issued by Ranger through its agent, Always Affordable. While Erdman was out on bond, she was arrested on other criminal charges and jailed in Marion County.

Because she was in jail in Marion County, Erdman failed to appear as scheduled in Story County District Court on July 26, 2004. That court ordered the bond forfeited and scheduled for August 11 a hearing on the entry of judgment. A district associate judge ordered entry of judgment against Erdman and Ranger on August 11 after noting that “neither the defendant nor [her] surety appear[ed].”

Always Affordable and Ranger hired counsel who filed a motion requesting the judgment be set aside and alleging (1) the associate district court was without jurisdiction to enter a judgment in excess of $10,000; (2) the judgment in excess of the court’s jurisdiction was based on an “irregularity” under Iowa Rules of Civil Procedure 1.1004(1) and 1.1012(2); (3) the court abused its discretion in entering judgment on the forfeited bond because Erdman’s failure to appear as ordered in Story County was neither intentional nor willful; and (4) the court abused its discretion in denying Dave Ellis, a non-lawyer sole shareholder and only officer of Always Affordable, the opportunity to appear at the August 11 hearing as the agent of Always Affordable and Ranger.

The court denied the motion to set aside the judgment, ruling that (1) because the court had jurisdiction in the criminal case in which Erdman’s bond was set and forfeited, the court also had jurisdiction to enter judgment on the forfeited bond in excess of $10,000, and (2) judgment was properly entered against Erdman and Ranger because (a) they failed to appear at the August 11 hearing through Ellis, a non-lawyer, and (b) entry of judgment on the forfeited bond was mandatory under Iowa Code section 811.6(1) because the defendant and her surety failed to appear. Always Affordable and Ranger appeal, contending the court (1) lacked subject matter jurisdiction to enter the judgment, and (2) abused its discretion in precluding Ellis from participating in the August 11 hearing on behalf of Always Affordable and in refusing to set aside the judgment.

II. Scope of Review.

Our scope of review of rulings on subject matter jurisdiction is for correction of errors at law. Tigges v. City of Ames, 366 N.W.2d 503, 512 (Iowa 1984).

III. Discussion.

“Subject matter jurisdiction refers to the power of the court to hear and determine cases of the general class to which the proceeding in question belongs.” Smith v. Smith, 646 N.W.2d 412, 414 (Iowa 2002). It is conferred by the Iowa Constitution and by statute. Iowa Const. art. V, § 6 (conferring jurisdiction upon the district court over civil and criminal matters as prescribed by law); Iowa Code § 602.6101 (2003) (conferring upon the district court all powers of a court of general jurisdiction); Powell v. Khodari-Intergreen Co., 303 N.W.2d 171, 173 (Iowa 1981). The subject matter jurisdiction of district associate judges in civil actions for money judgment is limited to those cases in which the amount in controversy does not exceed $10,000. Iowa Code § 602.6306(2).

In this case, the State sought and the district associate court entered judgment well in excess of $10,000. The State contends the court had jurisdiction to do so because (1) the judgment was not entered in a civil action for a “money judgment” or “money damages;” and (2) the bond that formed the basis for the judgment was issued in cases alleging two class “D” felonies and two aggravated misdemeanors over which the court clearly had jurisdiction. The State further contends it is implausible to suggest that the court had jurisdiction to set and forfeit the bond, but could not enter judgment on the bond to enforce the forfeiture. We disagree.

A proceeding in which the State seeks judgment on a bail bond is a civil action. State v. Costello, 489 N.W.2d 735, 738 (Iowa 1992); State v. Zylstra, 263 N.W.2d 529, 531 (Iowa 1978). The State’s objective in such an action is clearly to reduce a forfeited bond to a money judgment. The “controversy” in the action is, of course, whether the defendant and her sureties can show cause why judgment should not be entered for the amount of the bail bond. Iowa Code § 811.6(1). The “amount in controversy” is therefore the amount of the forfeited bond. Although the State correctly notes an action seeking such a judgment is different in some respects from an action for money damages, the objective of each is the same: a money judgment. We conclude that the associate district court’s jurisdiction to enter judgment on forfeited bail bonds is confined to cases in which the forfeited bond does not exceed $10,000. Id. § 602.6306(2).

We are not persuaded that, by its grant of subject matter jurisdiction in criminal cases alleging indictable misdemeanors and class “D” felonies, the legislature intended to impliedly confer upon the associate district court unlimited jurisdiction to enter judgment on bail bonds in excess of $10,000. If the legislature had intended to confer such jurisdiction, it would have done so expressly. See State v. Wiederien, 709 N.W.2d 538, 541 (Iowa 2006) (“‘We determine legislative intent from the words chosen by the legislature, not what it should or might have said.’ ” (quoting Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004))).

Having decided that the judgment entered in this case is void for lack of jurisdiction, we must decide an appropriate disposition. The decision whether to enter judgment for the amount of the forfeited bail bond depends on whether Erdman, Ranger, or Always Affordable can show cause why judgment should not be entered. Id. § 811.6(1). That decision is within the district court’s exercise of discretion. Costello, 489 N.W.2d at 738; Shell, 242 Iowa at 264, 45 N.W.2d at 854. Because we have decided to vacate the judgment on the bond, and we do not expect the issue to recur on remand, we do not reach the question of whether the district court erred in denying Always Affordable and Ranger the opportunity to participate in the August 11 hearing through their non-lawyer agent, Ellis. The judgment is vacated, and this case is remanded for further proceedings consistent with this opinion.

DISTRICT COURT JUDGMENT VACATED AND CASE REMANDED.

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

      . We express no opinion on the question of whether Erdman, Ranger, or Always Affordable will be able to show cause why judgment should not be entered in the amount of the forfeited bond. See State v. Shell, 242 Iowa 260, 264, 45 N.W.2d 851, 854 (1951); State v. Dodd, 346 N.W.2d 42, 42 (Iowa Ct.App.1984).