author: LAVORATO, Chief Justice.

text:
    Arthur YATES, Beverly Yates, and Yates Kennel, Inc., Appellees, v. IOWA WEST RACING ASSOCIATION d/b/a Bluffs Run Casino, and Harvey’s Bluffs Run Management Company, Inc., Appellants.
    No. 04-0434.
    Supreme Court of Iowa.
    Sept. 15, 2006.

      Donald J. Pavelka, Jr., and Thomas M. Locher of Locher Pavelka Dostal Braddy & Hammes, LLC, Omaha, Nebraska, for appellants.
    Jerry Crawford and Jim Quilty of Crawford Law Firm, Des Moines, for appellees.
   LAVORATO, Chief Justice.

This action arises out of the defendants’ alleged slanderous statements about a greyhound kennel and the defendants’ alleged negligence in maintaining its track that allegedly resulted in injuries to the kennel’s racing dogs. The defendants appealed from an adverse jury verdict on both claims. The kennel cross appealed, contending that the district court erred in not submitting punitive damages on its negligence claim.

We transferred the case to the court of appeals, which reversed on the appeal, concluding that the district court erred in overruling the defendants’ motion for directed verdict on both the slander and negligence claims. Because of its decision on the negligence claim, the court of appeals did not address the cross-appeal.

The kennel filed an application for further review, which we granted. We affirm the court of appeals decision, reverse the district court judgment, and remand the case with directions.

I. Background Facts.

Arthur and Beverly Yates are the owners of Yates Kennel, Inc., an Iowa corporation. Yates Kennel is a greyhound racing dog kennel that operated at Bluffs Run Casino (BRC) in Council Bluffs, Iowa. Iowa West Racing Association (IWRA) is a non-profit corporation and an Iowa statutory dog track licensee. IWRA is the owner of the license to operate Bluffs Run Casino. Harveys BR Management Company, Inc. (Harveys), a Nevada corporation, manages Bluffs Run pursuant to a management agreement with IWRA.

In 1998, 1999, and 2000, Yates Kennel obtained booking contracts with Harveys to have its greyhound dogs participate in greyhound racing meets at Bluffs Run. In 1999 and 2000, there was an increase in the number of injuries and deaths of greyhounds while racing at Bluffs Run. A number of those casualties were to Yates Kennel dogs. Kennel owners, including the Yates, thought the injuries and deaths resulted from the track being too hard in some spots and too soft in other spots.

In 2000 the Yates heard rumors that its kennel would not receive a booking contract for 2001. On November 16, 2000, the Iowa Racing and Gaming Commission (Commission), a state agency that regulates racing in Iowa, held a meeting. Jerry Crawford, an attorney for the Iowa Greyhound Association (IGA), an organization of kennel owners and operators, spoke at that meeting. At the time, Beverly Yates was a director of IGA. In relevant part regarding injuries to the racing greyhounds, the minutes of that meeting reflect the following:

Chair Hansen called on the Iowa Greyhound Association (IGA). Jerry Crawford, legal counsel for the IGA, advised they requested the opportunity to appear before the Commission to discuss the contractual ramifications of the track condition at Bluffs Run Casino (BRC), and more specifically, the contracts between BRC and the kennel owners/operators. He stated that some individuals would consider this to be a private matter between the track as a business and third parties, but feels that thought process ignores the Commission’s responsibility as BRC is a regulated business entity. He pointed out that the Commission determines the amount of money BRC is required to pay in purses to the third party kennel operators. Additionally, the Commission is responsible for monitoring the safety of the track conditions at the facility. Mr. Crawford stated that the track condition has been better on some occasions than others, but that it is not necessary to go back any further than the Commission meeting in Clinton when Verne Welch, BRC’s general manager, stated that two track records had been set in a one-week period. He indicated the Commission should be concerned as that means the track surface is like asphalt, making it very dangerous for the greyhounds. If the track surface is endangering the safety of the greyhounds, it is creating enormous financial and practical problems for the kennel owners and operators. Mr. Crawford stated that greyhounds are very expensive, and it is difficult for the owners/operators to maintain an active list when they are injuring dogs at a record rate. They are also faced with the economic hardship of replacing those dogs.

As the minutes reflect, Crawford then got into the question of kennel contracts for the year 2001:

At this point, all IGA knows is that some BRC kennel operators have not received a contract for the coming year. Mr. Crawford informed the Commission that the Arthur and Beverly Yates Kennel is one of the operators that has not received a contract offer for 2001. He noted that the Yates kennel has experienced 20 broken legs so far in 2000, and has had between 10-15 additional greyhounds removed from racing due to other race-ending injuries. In terms of dollars won, they are second from the bottom. This year money won in stakes’ races were not included in kennel standings, which is a variation from previous years. Mr. Crawford stated that the Yates Kennel did very well in stake races, noting that they had two dogs in the final Iowa Breeders Championship Race. He noted that one of the owners is an officer of the IGA, and BRC has indicated they are critical of them on the topic of the track condition.

Crawford then requested the Commission to

establish a timetable in order to review this matter to determine fairness due to the various issues faced by the kennel operators at BRC. He stressed to the Commissioners that it is the members of IGA, the kennel owners/operators, breeders and trainers, who have suffered the entire financial consequence of what has happened at BRC this year. He questioned whether the Commission should allow these small Iowa-based businesses to suffer the additional financial consequence of being put out of business at BRC.

Crawford asked the Commission to stop the execution of contracts so that “a fair and equitable dismissal clause” that ensures competent performance could be worked out. He also asked that the Commission “not allow BRC to do whatever it chooses to do with regard to kennel contracts.”

The Commission then allowed individuals with an opposing view an opportunity to speak. Lyle Ditmars, legal counsel for BRC, responded to the various issues Crawford raised. On one of those issues, timing of the kennel contracts, the minutes reflect that Ditmars stated the following:

Mr. Ditmars stated the timing is the same as last year. BRC established a committee that reviewed several criteria in determining who would be offered contracts: ranking of the kennel by number of wins; win percentage; compliance with contract requirements regarding the active list; compliance with contract requirements regarding the number of active greyhounds classified as A and B; residency of the owner; and contracts with the state of Iowa. He noted there have been instances where the kennel operators resided in Iowa, but did not have any Iowa-bred greyhounds in the kennel. Other factors are the willingness of the operator to use Iowa-bred greyhounds; quality of greyhounds maintained throughout the year; participation by the kennel operator in activities and programs designed to promote, enhance and improve greyhound racing at BRC; whether the kennel operator participated in activities that are potentially harmful to the operation of racing at BRC or other kennel operators; and the kennel operator’s compliance with other contract requirements.

Ditmars then made the following comments about the Yates Kennel:

Mr. Ditmars stated that BRC does not discuss who will or will not get a kennel contract with other kennel operators. Mr. Ditmars confirmed that the Yates Kennel was not offered a contract for 2001, and will not be offered one. In 1999 the kennel was in the bottom two or three kennels in terms of performance. They were given a six-month contract. At the end of that contract, even though they remained in the bottom five, they were given an additional six-month contract to give them an opportunity to correct the situation. At this time, the Yates Kennel is second from last in terms of wins and third from the bottom in terms of win percentage for the year. Mr. Ditmars stated that the decision was not arbitrarily made. He noted that Ms. Yates was on the board of directors of the IGA when they were offered their first kennel contract; Jason Hines was the president of IGA when he was offered a contract; and Bob Rider, who has had two six-month contracts and addressed the Commission regarding issues at BRC last year, was offered a new contract for 2001.

Additionally, in response to a commissioner’s question, Ditmars reportedly stated that he denied that any of the criteria established to determine which kennels would be offered contracts for next year were based on retribution for voicing criticism regarding BRC. According to the minutes, Crawford made a number of comments in rebuttal to Mr. Ditmars comments. One such comment included the following: “Mr. Crawford questioned the reasons given for terminating the Yates Kennel when kennels ranked lower than them received contracts for 2001, and over half of the kennels consistently have less than the required number of greyhounds on the active list.”

In response to this last comment, the minutes show that Ditmars stated the following: “Mr. Ditmars reiterated that the Yates Kennel is second from last in the kennel standings. The kennel in last place did not receive a six-month contract in the previous year, as did the Yates Kennel due to poor performance in 1999.”

According to the minutes, the Commission took no action on Crawford’s request. One commissioner “noted that the agenda stated it was to be a discussion of the contractual and financial ramifications of track conditions at BRC.” Another commissioner stated that “BRC is a private commercial company contracting with other private commercial companies” and she “could not foresee the Commission getting involved unless something unsavory was taking place.” Newspaper reporters present during the meeting wrote newspaper accounts containing some of Ditmars’ statements about Yates Kennel.

II. Proceedings.

Six months later, the Yates and Yates Kennel (hereinafter collectively referred to as plaintiffs) sued IWRA and BRC (hereinafter collectively referred to as defendants), alleging a number of theories for recovery, only two of which are relevant to this appeal: slander per se and negligence. As to both theories, the plaintiffs sought compensatory and punitive damages. The plaintiffs alleged that Ditmars’ statements before the Commission were slanderous per se. The plaintiffs also alleged that the defendants’ negligence in maintaining the dog track caused injuries to its dogs for which it suffered damages.

The parties tried the case to a jury, and the district court submitted for the jury’s consideration the slander and negligence claims as well as punitive damages on the slander claim. The court refused to submit punitive damages on the negligence claim. On the slander claim, the jury awarded no compensatory damages but did award punitive damages.

On the negligence claim, the jury found the plaintiffs thirty-three percent at fault and the defendants sixty-seven percent at fault. The jury awarded damages for loss of income, lost value of injured greyhounds, and veterinary expenses.

The defendants appealed both the slander and negligence verdicts. The plaintiffs cross-appealed, contending the district court erred in not submitting punitive damages on their negligence claim. We transferred the case to the court of appeals. The court of appeals reversed on the appeal. Because the court of appeals reversed on the appeal, it did not address the cross-appeal.

We granted the plaintiffs’ application for further review.

III. Issues.

Although a number of issues were raised on appeal, we determine that only the following issues require discussion: whether the district court erred in denying the defendants’ motion for directed verdict in which the defendants asserted that (1) the alleged slanderous statements in question were true as a matter of law and (2) there was insufficient evidence that the track conditions proximately caused injuries to the plaintiffs’ dogs.

IV. Scope of Review.

We review the district court’s rulings on motions for directed verdict for correction of errors at law. Estate of Pearson ex rel. Latta v. Interstate Power & Light Co., 700 N.W.2d 333, 340 (Iowa 2005). In reviewing such rulings, we view the evidence in the light most favorable to the nonmoving party to determine whether the evidence generated a fact question. Dettmann v. Kruckenberg, 613 N.W.2d 238, 250-51 (Iowa 2000). To overcome a motion for directed verdict, substantial evidence must exist to support each element of the claim or defense. Id. at 251. Substantial evidence exists if reasonable minds could accept the evidence to reach the same findings. Id.

V.The Defamation Claim: Truth as a Defense.

The first issue we address is whether the district court erred in overruling the defendants’ motion for directed verdict on the ground that the alleged slanderous statements were true as a matter of law.

1. Applicable law. The law of defamation includes the twin torts of libel and slander. Schlegel v. The Ottumwa Courier, 585 N.W.2d 217, 221 (Iowa 1998). “Libel is generally a written publication of defamatory matter, and slander is generally an oral publication of such matter.” Id. (citation omitted). As we noted in Schle-gel,

“[t]he law of defamation embodies the public policy that individuals should be free to enjoy their reputation unimpaired by false and defamatory attacks. An action for defamation or slander is based upon a violation of this right.
The gravamen or gist of an action for defamation is damage to the plaintiffs reputation. It is reputation which is defamed, reputation which is injured, and reputation which is protected by the law of defamation.
Defamation is an impairment of a relational interest; it denigrates the opinion which others in the community have of the plaintiff and invades the plaintiffs interest in the [plaintiffs] reputation and good name.”

Id. (quoting 50 Am.Jur.2d Libel and Slander § 2, at 338-39 (1995)).

In Hovey v. Iowa State Daily Publication Board, Inc., we adopted “the view espoused in Restatement (Second) of Torts, section 581A comment / that if an allegedly defamatory statement is substantially true, it provides an absolute defense to an action for defamation.” 372 N.W.2d 253, 256 (Iowa 1985). Comment/provides that

many charges are made in terms that are accepted by their recipients in a popular rather than a technical sense.... It is not necessary to establish the literal truth of the precise statement made. Slight inaccuracies of expression are immaterial provided the defamatory charge is true in substance.

Restatement (Second) of Torts § 581A cmt. / (1977).

Prior to Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), as a matter of constitutional law, a statement of opinion was thought not to be defamatory. As the United States Supreme Court stated in Gertz v. Robert Welch, Inc.,

[ujnder the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in “uninhibited, robust, and wide-open debate” on the public issues. They belong to that category of utterances which “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

418 U.S. 323, 339-40, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789, 805 (1974) (citations omitted); accord Jones v. Palmer Commc’ns, Inc., 440 N.W.2d 884, 891 (Iowa 1989) (“Opinion is absolutely protected under the first amendment.”), overruled on other grounds by Schlegel, 585 N.W.2d at 224.

This statement in Gertz was dictum; however, a majority of the federal courts of appeals interpreted this dictum to mean that statements of fact can be actionable defamation but statements of opinion cannot. Guilford Transp. Indus., Inc. v. Wilner, 760 A.2d 580, 596 (D.C.2000). As one court observed,

[b]y this statement, Gertz elevated to constitutional principle the distinction between fact and opinion, which at common law had formed the basis of the doctrine of fair comment. Gertz’s implicit command thus imposes upon state and federal courts the duty as a matter of constitutional adjudication to distinguish facts from opinions in order to provide opinions with the requisite, absolute First Amendment protection.

Oilman v. Evans, 750 F.2d 970, 975 (D.C.Cir.1984) (footnotes omitted). The framework of analysis was therefore to determine whether the alleged defamatory statement was fact or opinion.

Because the degree to which alleged defamatory statements have real factual content can vary greatly, the court in Oilman noted “that courts should analyze the totality of the circumstances in which [such] statements are made to decide whether they merit the absolute First Amendment protection enjoyed by opinion.” Id. at 979. In evaluating the totality of the circumstances, the court considered four factors in assessing whether the average reader or listener, in contrast to the most skeptical or most credulous reader or listener, would view the statement as fact or opinion. Id. at 979 & n. 16. These factors, the court was convinced, would lead to “a proper accommodation between the competing interests in free expression of opinion and in an individual’s reputation.” Id. at 978.

Following the lead of many other federal circuit courts of appeals, the eighth circuit adopted this four-factor test in Janklow v. Newsweek, Inc., 788 F.2d 1300, 1302 (8th Cir.), cert. denied, 479 U.S. 883, 107 S.Ct. 272, 93 L.Ed.2d 249 (1986). Relying on Janklow, we adopted the four-factor test in Palmer Communications, Inc., 440 N.W.2d at 891-92.

The first relevant factor is whether the alleged defamatory statement “has a precise core of meaning for which a consensus of understanding exists or, conversely, whether the statement is indefinite and ambiguous.” Ollman, 750 F.2d at 979; see also Palmer Commc’ns, Inc., 440 N.W.2d at 891. We characterized this factor as “the precision and specificity of the disputed statement.” Palmer Commc’ns, Inc., 440 N.W.2d at 892 (citation omitted).

The second relevant factor is “the degree to which the [alleged defamatory] statements are ... objectively capable of proof or disproof [ ].” Ollman, 750 F.2d at 981. We related this factor to the first factor and noted that “if a statement is precise and easy to verify, it is likely the statement is fact.” Palmer Commc’ns, Inc., 440 N.W.2d at 891. In this connection, one writer has defined a factual statement as one that relates to an event or state of affairs that existed in the past or exists at present and is capable of being known. See Ollman, 750 F.2d at 981 n. 22 (citation omitted). This verification factor “is, in actuality, merely one of many rules in tort that prevent the jury from rendering a verdict based on speculation.” Id. at 981.

The third relevant factor is the context in which the alleged defamatory statement occurs. Id. “[T]he context to be considered is both narrowly linguistic and broadly social.” Id. We characterized this factor as “the ‘literary context’ in which the disputed statement [is] made.” Palmer Commc’ns, Inc., 440 N.W.2d at 891. The degree to which a statement is laden with factual content or can be read to imply facts depends upon the article or column, see id., or in this case the whole discussion.

The last relevant factor is “the broader social context into which [the alleged defamatory] statement fits.” Ollman, 750 F.2d at 983. Important here are the types of writing or speech in which the statement appears. Id. We likewise characterized this factor as “the social context,” and noted that this factor “focuses on the category of publication, its style of writing and intended audience.” Palmer Commc’ns, Inc., 440 N.W.2d at 891-92 (citation omitted). We also noted that we consider the “ ‘public context’ or political arena in which the statements were made.” Id. at 892 (citations omitted).

In 1990 the Court in Milkovich rejected this per se approach providing blanket First Amendment protection of all statements of opinion:

[W]e do not think this passage from Gertz [quoted above] was intended to create a wholesale defamation exemption for anything that might be labeled “opinion” .... Not only would such an interpretation be contrary to the tenor and context of the passage, but it would also ignore the fact that expressions of “opinion” may often imply an assertion of fact.

497 U.S. at 18, 110 S.Ct. at 2705, 111 L.Ed.2d at 17.

Noting that the Gertz dictum “ignored the fact that expressions of ‘opinion’ may often imply an assertion of fact,” the Court gave the following example to support this statement:

If a speaker says, “In my opinion John Jones is a liar,” he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications; and the statement, “In my opinion Jones is a liar,” can cause as much damage to reputation as the statement, “Jones is a liar.”

Id. at 18-19, 110 S.Ct. at 2705-06, 111 L.Ed.2d at 17-18.

Citing existing law, the Court clarified that only statements regarding matters of public concern that are not sufficiently factual to be capable of being proven true or false and statements that cannot reasonably be interpreted as stating actual facts are absolutely protected under the Constitution. In making this clarification, the Court rejected “the creation of an artificial dichotomy between ‘opinion’ and fact.” Id. at 19-20, 110 S.Ct. at 2705-06, 111 L.Ed.2d at 18. In rejecting this dichotomy, the Court did not, however, abolish the constitutional protection for opinions. It merely narrowed that protection. Hunt v. Univ. of Minn., 465 N.W.2d 88, 94 (Minn.Ct.App.1991). Thus, the framework of analysis is no longer whether the alleged defamatory statement is fact or opinion. Rather the framework of analysis now is whether the alleged defamatory statement can reasonably be interpreted as stating actual facts and whether those facts are capable of being proven true or false. Under this analysis, “statements of opinion can be actionable if they imply a provable false fact, or rely upon stated facts that are provably false.” Moldea v. New York Times Co., 22 F.3d 310, 313 (D.C.Cir.1994). The statement that the plaintiff must prove false is not the literal wording of the statement but what a reasonable reader or listener would have understood the author to have said. Milkovich, 497 U.S. at 16-17, 110 S.Ct. at 2704-05, 111 L.Ed.2d at 16.

Although the Court in Milkovich rejected the dichotomy between fact and opinion as the framework of analysis, we agree with the following:

The test used in Milkovich to identify protected opinions is very similar to the four-factor inquiry used by the circuit courts to distinguish fact from opinion. Specificity and variability are closely related to whether the statement is capable of being proven false. Whether a remark can be reasonably interpreted as stating actual facts must be inferred from the political, literary, and social context in which the statement was made. Given the similarity between the Supreme Court’s definition of protected opinion and the circuit courts’ fact/opinion analysis, decisions applying the Janklow test are still helpful under Mil-kovich.

Hunt, 465 N.W.2d at 94; see also Milkovich, 497 U.S. at 24-25, 110 S.Ct. at 2709, 111 L.Ed.2d at 21-22 (Brennan, J., dissenting) (agreeing with the majority’s statement of the law but disagreeing with the majority’s application of the law to the facts; also noting that among the circumstances a court is to consider in determining whether a statement purports to state or imply actual facts about an individual are the same four factors used to distinguish between statements of fact and statements of opinion first stated in Oilman and adopted in Janklow). We will therefore employ the four-factor test we adopted in Palmer Communications, Inc. to identify protected opinion under the Milkovich framework of analysis.

A trial court’s initial task in a defamation action is to decide whether the challenged statement is “capable of bearing a particular meaning, and whether that meaning is defamatory.” Restatement (Second) of Torts § 614(1) (1977); see also Levy v. Am. Mut. Liability Ins. Co., 196 A.2d 475, 476 (D.C.1964) (“It is only when the court can say that the publication is not reasonably capable of any defamatory meaning and cannot be reasonably understood in any defamatory sense that it can rule, as a matter of law, that it was not libelous.”). In carrying out this task, a court should not, however,

indulge far-fetched interpretations of the challenged publication. The statements at issue “should ... be construed as the average or common mind would naturally understand [them].” If the court determines that a statement is indeed capable of bearing a defamatory meaning, then whether that statement is in fact “defamatory and false [is a question] of fact to be resolved by the jury.”

Guilford Transp. Indus., 760 A.2d at 594 (citations omitted).

2. The merits. As mentioned, minutes of the Commission meeting on November 16, 2000 reflect that attorney Crawford questioned the reasons given for terminating the Yates Kennel when kennels ranked lower than it received contracts for 2001, and over half of the kennels consistently had less than the required number of greyhounds on the active list. The minutes further reflect that in responding to this comment, attorney Ditmars stated the following: “Yates Kennel is second from last in the kennel standings. The kennel in last place did not receive a six-month contract in the previous year, as did the Yates Kennel due to poor performance in 1999.”

Beverly Yates testified Ditmars’ statement that “Yates Kennel is second from last in kennel standings” was true. She further testified over hearsay objections that she read newspaper accounts of the Commission meeting stating that Yates Kennel had a poor, noncompetive kennel.

David Ungs testified that he was president of the IGA at the times material to this action. Ungs further testified that in his capacity as president he met with Vern Welch, a representative of Bluffs Run management, some time before the commission meeting on November 16, 1999. In his conversation with Welch, Ungs stated he and Welch discussed the possibility of kennels losing their booking contracts. According to Ungs, Welch stated that Bluffs Run was one of the leading tracks in the country as far as payouts were concerned and that the kennels would need to be more competitive or they would be eliminated. Later at the Commission hearing on November 16, which Ungs attended, Ungs learned that the Yates Kennel’s booking contract would not be renewed. He recalled that at the November 16 meeting Ditmars said that Yates Kennel did not receive a booking contract because they were a “substandard or lower kennel.”

The plaintiffs contend that the references to Yates Kennel as “substandard and poor performers” as testified to by Beverly Yates and David Ungs were defamatory. For reasons that follow, we disagree.

The issue boils down to whether the Ditmars statement “substandard and poor performers,” which is an opinion, implies a provably false fact, or relies upon stated facts that are provably false. Viewing this statement in context, we first note that Ditmars’ statement was in response to Crawford’s questioning of the reasons given for terminating the kennel’s booking contract. Ditmars set out facts (the kennel’s ranking compared to other kennels), which signaled to a reasonable listener that his statement “poor and substandard performers” represented a characterization of those facts.

Moreover, “substandard and poor performers” do not have a precise and verifiable meaning and are therefore less likely to give rise to clear factual implications. But even if the words “substandard” and “poor performers” are verifiable, that assessment is supported by stated facts that are true. Cf. Moldea, 22 F.3d at 317 (Assuming statement, contained in review of book reporting on alleged gang connections with professional football, that author had engaged in “too much sloppy journalism,” was capable of verification, statement was not defamatory because book review author had supported statement with illustrations from book itself). Ditmars’ disclosure of the facts underlying his statement of “substandard and poor performers,” facts that Beverly Yates conceded were true, makes this case different from Mil-kovich. A reasonable reader could conclude that Ditmars was giving his personal conclusion or opinion about those undisputed facts. The reader could further conclude that Ditmars’ statement did not imply any provable false fact. See Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d 724, 731 & n. 13 (1st Cir.1992) (Newspaper articles that allegedly falsely accused touring company of deliberate effort to pass off its musical-comedy version as widely acclaimed Broadway show of same name did not constitute actionable defamation because assertion of deceit reasonably could have been understood not as a statement of fact but only as reporter’s personal conclusion about information that was presented which was not challenged as false.).

A good example of a statement with a well-defined meaning is an accusation of a crime. See, e.g., Cianci v. New Times Publ’g Co., 639 F.2d 54, 63 (2d Cir.1980) (holding that an article that implied a may- or had committed rape and that charged him with paying the alleged victim not to bring charges was not protected opinion). Clearly, an accusation of a crime is laden with factual content and the facts are easily verifiable. Such was the case in Milko-vich. In that case a high school wrestling coach argued that an Ohio newspaper libeled him by printing a column that alleged he had perjured himself in his testimony to a state court concerning his role in an altercation between his team and an opposing team at a wrestling match. The column stated that “Anyone who attended the meet ... knows in his heart that Milkovich ... lied at the hearing .... ” Milkovich, 497 U.S. at 5, 110 S.Ct. at 2698, 111 L.Ed.2d at 9. The Court rejected the argument that an accusation of perjury was nonactionable merely because it was offered as the writer’s opinion. Id. at 21, 110 S.Ct. at 2707, 111 L.Ed.2d at 19. The Court noted that “the connotation that the petitioner committed perjury is sufficiently factual to be susceptible of being proved true or false .... ‘Unlike a subjective assertion the averred defamatory language is an articulation of an objectively verifiable event.’ ” Id. at 21-22, 110 S.Ct. at 2707, 111 L.Ed.2d at 19 (citation omitted).

For all of these reasons, we conclude as a matter of law that the statement “substandard and poor performers” constituted nothing more than Ditmars’ conclusion or opinion, which contained nothing that implied any provable false fact. Moreover the statement was based on facts that were true. As such the statement was not defamatory.

VI. The Negligence Claim: Sufficiency of the Evidence Regarding Causation.

The second issue we address is whether the district court erred in overruling the defendants’ motion for directed verdict because there was insufficient evidence that the track conditions proximately caused injuries to the plaintiffs’ dogs. In their motion for directed verdict, the defendants contended the plaintiffs did not prove that the injuries to the dogs would not have occurred but for the defendants’ maintenance of the track. In support of their contention, the defendants argued the plaintiffs did not produce testimony that a qualified veterinarian examined or treated any of the plaintiffs’ dogs at the time they were allegedly injured and diagnosed them with injuries attributable to track conditions. At the close of all the evidence, the defendants renewed their motion. The defendants raised the same contention and arguments on appeal.

1. Applicable law. To sustain its negligence claim against the defendants, the plaintiffs had to prove that the defendants owed it a duty of care, they breached that duty, their breach was the actual and proximate cause of the injuries to its dogs, and the damages it suffered. Virden v. Betts & Beer Constr. Co., 656 N.W.2d 805, 807 (Iowa 2003).

As we explained in Berte v. Bode,

Causation has two components: “(1) the defendant’s conduct must have in fact caused the plaintiffs damages (generally a factual inquiry) and (2) the policy of the law must require the defendant to be legally responsible for the injury (generally a legal question).” We apply a “but for” test to determine whether the defendant’s conduct was a cause in fact of the plaintiffs harm. Under that test, “the defendant’s conduct is a cause in fact of the plaintiffs harm, if, but-for the defendant’s conduct, that harm would not have occurred. The but-for test also implies a negative. If the plaintiff would have suffered the same harm had the defendant not acted negligently, the defendant’s conduct is not a cause in fact of the harm.”

692 N.W.2d 368, 372 (Iowa 2005) (citations omitted). Proximate cause or legal cause, the second element of causation, determines the appropriate scope of a negligent defendant’s liability. In applying proximate cause rules, courts attempt “to discern whether, in the particular case before the court, the harm that resulted from the defendant’s negligence is so clearly outside the risks he created that it would be unjust or at least impractical to impose liability.” Id. (citation omitted). Here, we are dealing with cause in fact.

This court has long been “committed to a liberal rule [that] allows opinion testimony if it is of a nature which will aid the jury and is based on special training, experience, or knowledge [as] to the issue in question.” Iowa Power & Light Co. v. Stortenbecker, 334 N.W.2d 326, 330 (Iowa App.1983). However, medical testimony regarding whether an accident caused an injury is not within the knowledge and experience of ordinary laypersons. Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 382-83, 101 N.W.2d 167, 171 (1960) (holding that in patient’s action for personal injury allegedly resulting from a fall in defendant hospital, medical testimony that it was possible that plaintiffs subsequent physical condition was caused by the fall was insufficient, standing alone, to take the issue of causation to the jury). Such testimony is essentially within the domain of testimony from a medical expert. Id. at 383, 101 N.W.2d at 171. Before such testimony can be considered competent, there must be sufficient data upon which the expert judgment can be made. The facts must be sufficient to allow the expert to reach a conclusion that is “more than mere conjecture or speculation.” Stortenbecker, 334 N.W.2d at 330-31. Without the medical testimony, a jury is left to resort to conjecture in determining causation. Chenoweth v. Flynn, 251 Iowa 11, 16, 99 N.W.2d 310, 313 (1959). The rule is the same with respect to injuries to animals. See Winter v. Honeggers’ & Co., 215 N.W.2d 316, 323 (Iowa 1974) (holding veterinarian testimony that the negligent design of a hog confinement facility possibly caused an illness to hogs coupled with testimony that the hogs were not affected with the illness before the use of the facility was sufficient on the question of causation); Miller v. Economy Hog & Cattle Powder Co., 228 Iowa 626, 636-37, 293 N.W. 4, 9 (1940) (holding that, in suit for damages for death of sheep allegedly caused by feeding a product purchased from defendant, testimony from several veterinarians who examined the sheep on various occasions and who also made a number of post mortem examinations was sufficient on causation).

As this court in Hildebrand & Son v. Black Hawk Oil Co. noted,
the plaintiff is bound, as a necessary element of its case, to show that the injuries which its hogs suffered were the direct result of the feeding of this preparation to them. There is no expert testimony introduced in this case, there seems to have been no post mortem of the dead hogs, and there is no testimony directed to the point that the injury to this herd of hogs was the result of the feeding of the preparation to them. It is also to be remembered in cases of this character that in the course of events all animals die; in other words death is inherent in all animal creation. Equally so all animal creation is subject to many ailments, ills, and diseases, resulting in death or injury to the animal. Therefore, in a case of this kind, proof that the animal died or was permanently injured does not establish a case for the plaintiff. In short, plaintiff alleges that these hogs died and injury to the balance of the herd was caused by the feeding of this preparation to them. Plaintiff is bound to prove this else it has not made out a case. The evidence is wholly wanting to connect the death of these hogs with the feeding of this preparation, and equally so as to their stunted growth.

205 Iowa 946, 947-48, 219 N.W. 40, 40-41(1928) (citation omitted).

2. Analysis. The plaintiffs produced three witnesses concerning the dogs’ injuries. Lori Fortune, an assistant dog trainer, testified that her training included identifying injuries and the cause of injuries to the dogs. She further testified that her training indicated to her what may have caused the injuries. She explained that in her experience a track that has inconsistent surfaces, such as Bluffs Run had, varying between hard and soft spots, can injure dogs. Hard spots she said could cause broken bones and loose spots could cause muscle and ligament damage. Over defendants’ objection that the witness was not qualified to testify concerning causation of the dogs’ alleged injuries, the witness was allowed to give her opinion that the majority of the injuries to the plaintiffs’ dogs came from poor track conditions.

Randy Sehaben testified that he raised greyhounds. Like Fortune, Sehaben described the Bluffs Run track in 2000 as having an inconsistent surface — there were hard and soft spots on the surface of the track. He described the inconsistency this way: “The easiest way to probably explain it would be like running from a grassy lawn onto a sidewalk and then back into grass .... It’s just inconsistent footing, so to speak.” He further testified that in 2000 his dogs suffered a lot of injuries at the track.

James Lovely, a dog trainer who also raced greyhounds, testified that for a period of sixty and ninety days there were more dog injuries at Bluffs Run than there should have been. Although he was not sure what was causing so many injuries, his personal opinion was that there was a hard pan directly under the surface of the track.

The plaintiffs also produced evidence from engineers who tested the soil on the track and who confirmed that the track conditions went from hard to soft, conditions that could be “aggressive on a dog’s paws.”

Beverly Yates, one of the owners of Yates Kennel, testified that the kennel was claiming damages for injuries to twenty-four dogs for the year 2000. A list of the dogs and their injuries is included in an exhibit in evidence. However, there was no medical testimony that attributed the cause of those injuries to race track conditions. This failure of proof was fatal to Yates Kennel’s negligence claim. Fortune’s testimony attributing the cause of a majority of the injuries to the track conditions was conjecture and therefore not sufficient to overcome this flaw.

We agree with the defendants that evidence of increased injuries to dogs for a period of time was anecdotal, at best. Moreover, Fortune admitted that many other factors can account for injuries to greyhounds. These factors, she admitted, include genetics, conditioning, accidents at the kennel or while the dogs are being transported, dogs bumping into each other during the races, dogs racing while already injured, and the natural effects of racing on the body of a dog. Fortune conceded that the exhibit listing the injuries had no reference to track conditions but did have references to dogs falling and making contact with other dogs. A veterinarian called by the defendants confirmed that there are numerous causal factors related to greyhound injuries including genetics, where and how the dog was reared, nutrition, physical conditioning, type of competition, and a dog racing without adequate rest or with injury.

VII. Disposition.

In sum, we conclude as a matter of law that the plaintiffs failed to produce sufficient evidence of their slander and negligence claims for submission of those claims to the jury. Accordingly, the district court erred in overruling the defendants’ motion for directed verdict. We therefore affirm the court of appeals decision and reverse the judgment of the district court. We remand for entry of a judgment in favor of the defendants.

COURT OF APPEALS DECISION AFFIRMED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS.

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


source: Caselaw Access Project

author: TERNUS, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Charlotte HUTCHISON, Frank Cordaro, Josh Plank, Rita Hohenshell, and Edward Bloomer, Appellants.
    No. 05-0561.
    Supreme Court of Iowa.
    Sept. 22, 2006.

      Sally Frank, Drake Legal Clinic, Des Moines, for appellants.
    Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant Attorney General, John P. Sarcone, County Attorney, and Justin Allen, Assistant County Attorney, for appellee.
   TERNUS, Justice.

Appellants, Charlotte Hutchison, Frank Cordaro, Josh Plank, Rita Hohenshell, and Edward Bloomer, appeal their convictions for simple misdemeanor trespass. These convictions arose from the defendants’ participation in a protest near N.W. 78th Avenue in Polk County in the vicinity of the STARC Armory. The defendants were arrested when they crossed a painted line within the boundary of land leased to the State of Iowa Army National Guard by the United States Army Corps of Engineers. Because this line was within the right of way for N.W. 78th Avenue, the defendants claimed they were on public land and therefore could not be charged with criminal trespass. The jury rejected this claim and convicted the defendants. On appeal, the defendants assert there was insufficient evidence to support the jury’s finding that they trespassed on private land. Because we find the evidence adequate to support the jury’s verdict, we affirm.

I. Background Facts and Proceedings.

Sometime before November 16, 2003, the Iowa Army National Guard (“Guard”) became aware that demonstrators planned an anti-war protest on property owned by the Army Corps of Engineers (“Corps”) across the road — N.W. 78th Avenue — from a gate to the STARC Armory. Prior to the anticipated demonstration, Lt. Col. Matthew Pitstick, chief training site manager for the armory, used spray paint to mark the Guard’s property line.

A lease introduced at trial showed the Guard had leased a parcel of land in the Saylorville Lake Flood Control Project from the Corps in 1989 for the purpose of constructing an armory. Included in the lease was a 2850 foot, federally owned strip of land called N.W. 78th Avenue, which connected Corps property near the Saylorville Dam and the armory to N.W. Beaver Drive. Under the terms of the lease, this roadway — N.W. 78th Avenue— was to be used for access to the Saylorville Lake Project, and the Guard agreed to “assume total responsibility for the operation, maintenance, repair and replacement” of the roadway, including “maintain[ing] the road in good condition and ... preserving] a smooth surface.” The agreement specifies that the right of way for N.W. 78th Avenue extends fifty feet in each direction from the center of the roadway. The paved road itself is twenty-two feet wide. The line spray-painted by Lt. Col. Pitstick was forty-five feet from the center of the road.

On November 16, 2003, the defendants were members of a group that peaceably assembled on the Corps property across from the armory. The group was repeatedly informed by a Guard member that the Guard would not allow a public gathering on its property, that the painted line demarcated that property, and that crossing the line for such a gathering would result in arrest. Notwithstanding these admonitions, following a short statement, the defendants grasped hands and intentionally crossed the painted line. As warned, they were arrested and charged with criminal trespass, in violation of Iowa Code section 716.7(2)(6) (2003), a simple misdemeanor.

The cases against the defendants proceeded to a joint jury trial. At the conclusion of the State’s evidence, the defendants moved for a judgment of acquittal, asserting the State had failed to establish the offense of trespass. They cited an Iowa Code provision that states a trespass cannot take place “upon the right-of-way of a public road or highway.” Iowa Code § 716.7(4). The court denied the motion, and after evidence from the defendants, the case was submitted to the jury. The jury was instructed that the State had to prove the defendants “entered upon the property of the Iowa National Guard.” They were also told that “[t]he term ‘trespass’ does not mean the entering upon the right-of-way of a public road or highway.” The jury returned verdicts finding each defendant guilty of simple misdemeanor trespass. The defendants were sentenced to time served, which amounted to one or two nights in jail for each defendant.

The defendants appealed their convictions to the district court. The issue, the district court noted, was whether N.W. 78th Avenue was a “public road” and therefore exempt from trespass. The defendants argued to the court that N.W. 78th Avenue was a public road under the doctrines of prescription or dedication. The court concluded the evidence was insufficient to establish a public road under either theory and so affirmed the jury’s verdicts.

This court granted the defendants’ petition for discretionary review. In this appeal, the defendants contend the State failed to present sufficient evidence that the roadway in question was a private road. They claim the evidence established that the road became a public roadway under the doctrines of prescription and dedication.

II. Scope and Standard of Review.

The defendants claim the trial court erred in refusing to grant their motion for judgment of acquittal based on the insufficiency of the evidence. See generally State v. Allen, 304 N.W.2d 203, 206 (Iowa 1981) (“A motion for judgment of acquittal is a means for challenging the sufficiency of the evidence to sustain a conviction .... ”). “If the jury’s verdict is supported by substantial evidence, it is binding on the court.” State v. Corsi, 686 N.W.2d 215, 218 (Iowa 2004). Therefore, our review is for correction of errors at law. Id.

In determining the correctness of a ruling on a motion for judgment of acquittal, we do not resolve conflicts in the evidence, pass upon the credibility of witnesses, or weigh the evidence. See State v. Williams, 695 N.W.2d 23, 28 (Iowa 2005). “[S]uch matters are for the jury.” Id. Instead, we ascertain whether the evidence “ ‘could convince a rational jury of the defendant’s guilt beyond a reasonable doubt.’ ” Corsi, 686 N.W.2d at 218 (citation omitted). Evidence that raises only a suspicion or generates only speculation is not substantial. Id. In evaluating the evidence, we consider all the evidence in the record, and we view it in the light most favorable to the jury’s verdict. Id.

III. Pertinent Statutes.

The statute the defendants were found guilty of violating states that criminal trespass includes

[e]ntering ... property without justification after being notified or requested to abstain from entering ... by the owner, lessee, or person in lawful possession, or the agent or employee of the owner, lessee, or person in lawful possession

Iowa Code § 716.7(2)(6). Of particular significance to the present case, the statute further provides that “[t]he term ‘trespass ’ does not mean the entering upon the right-of-way of a public road or highway.” Id. § 716.7(4).

The trespass statute does not define “a public road or highway.” However Iowa Code chapter 306, entitled “Establishment, Alteration, and Vacation of Highways,” offers guidance on the definition of roads and public road rights-of-way. See id. § 306.3 (stating listed definitions apply to chapter 306 and “any chapter of the Code relating to highways”); see also State v. Sims, 173 N.W.2d 127, 128 (Iowa 1969) (applying in criminal prosecution the predecessor definition of the terms now defined in section 306.3(8)). This statute provides the following definitions:

7. “Public road right-of-way ” means an area of land, the right of possession of which is secured or reserved by the state or a governmental subdivision for roadway purposes....
8. “Road ” or “street ” means the entire width between property lines through private property or the designated width through public property of every way or place of whatever nature if any part of such way or place is open to the use of the public, as a matter of right, for purposes of vehicular traffic.

Id. § 306.3(7), (8). Similarly, although not expressly applicable to the trespass statute, chapter 321, entitled “Motor Vehicles and Law of the Road,” contains a definition of “private road.” Id. § 321.1 (stating defined words have specified meanings “for the purpose of this chapter”). This provision states:

“Private road ” or “driveway ” means every way or place in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner but not by other persons.

Id. § 321.1(54).

TV. Discussion.

The element of the State’s case challenged on appeal is the status of N.W. 78th Avenue as a private road. We think the evidence, while in some respects conflicting, was clearly sufficient to support the jury’s finding that the road was private and not public.

A. Review of evidence. The lease between the Corps and the Guard supported the State’s position that the road was owned by the Corps and leased to the Guard. This document also showed the Guard, not the county or state, was responsible for the maintenance of that portion of N.W. 78th Avenue passing through the leased land. Lt. Col. Pitstick’s testimony affirmed these facts. Pitstick testified the Guard assumed responsibility for the road: the Guard filled potholes, cleared snow, removed road kill, and mowed the shoulders. He also testified the Guard has the authority to close the road, and did so during the 1993 floods. Although the Guard provides security on the roadway, it has entered into a 28E agreement with the Polk County sheriffs office for law enforcement on N.W. 78th Avenue.

The defendants rely on testimony of Teresa McDermott of the Polk County auditor’s office, who testified N.W. 78th Avenue is designated on an aerial map in their office as a “right of way which is the public access or the easement.” She also testified, however, that N.W. 78th Avenue could be a private road, and she is aware that some private roads provide public access, in parks for example. In addition to McDermott’s testimony, there was evidence that the use of N.W. 78th Avenue was not restricted and this roadway was used by the public in general.

We think the record fully supports the jury’s finding. The State’s evidence showed the road was owned by the Corps, leased, maintained and controlled by the Guard, and used with the Guard’s implicit permission by motorists seeking access to Saylorville Lake. See id. § 321.1(54) (defining “[pjrivate road ” as a way “in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner but not by other persons”). The same evidence negates that “the right of possession” of the road was “secured or reserved by the state or a governmental subdivision for roadway purposes.” See id. § 306.3(7) (defining “[pjublic road right-of-way” as “an area of land, the right of possession of which is secured or reserved by the state or a governmental subdivision for roadway purposes”).

The defendants claim, however, that the record established the road in question was a public road by prescription and by dedication. Obviously, the jury rejected these arguments when it found the defendants guilty. Therefore, the question on appeal is whether the evidence established as a matter of law that N.W. 78th Avenue was a public roadway through prescription or dedication, such that the trial court should have granted the defendants’ motions for judgment of acquittal. See State v. Watkins, 659 N.W.2d 526, 535 (Iowa 2003).

B. Dedication. “ ‘Dedication’ is ‘the setting aside of land for a public use.’ ” Sons of the Union Veterans of the Civil War v. Griswold Am. Legion Post 508, 641 N.W.2d 729, 733 (Iowa 2002) (citation and emphasis omitted). Dedication requires three elements: “(1) intent to dedicate, (2) dedication, and (3) acceptance by the public or the party to whom the dedication is made.” Id. at 734. We think the evidence does not mandate a finding of these elements as a matter of law.

The evidence needed to establish dedication “ ‘may not be predicated on anything short of deliberate, unequivocal, and decisive acts and declarations of the owner, manifesting a positive and unmistakable intention to permanently abandon his property to the specific public use.’ ” Id. (citation omitted). Moreover, “ ‘mere permissive use of a way, no matter how long continued, will not amount to a dedication.’ ” Id. (citation omitted); accord Bradford v. Fultz, 167 Iowa 686, 698, 149 N.W. 925, 929 (1914) (“No length of use of a private road will make it a public highway.”). In addition, “an intention to dedicate must have existed at the time of the beginning of the use which is relied upon to show dedication.” Mahaska State Bank v. Kelly, 520 N.W.2d 329, 331 (Iowa App.1994).

The record is devoid of any evidence that the Guard or the Corps intended to dedicate the road to the public when the road was first opened for public use or at any time thereafter. At most, the evidence showed permissive use by persons wanting access to the lake or a way around the lake, a fact insufficient to support dedication. Although the defendants cite McDermott’s testimony and the maps in the Polk County auditor’s office as showing a formal dedication, we think this evidence did not go far enough. Although the witness and the county map confirmed that the roadway was used for “public access,” this evidence left unanswered whether that use was permissive or was the result of the owner’s intent to abandon the road. Other evidence supplied that answer: the Corps, which owned the property, expressly relinquished use and control of the property to the Guard, and the Guard at all times retained control of the roadway, negating any intent to abandon the road to the public. The record simply does not support a finding that dedication was established as a matter of law.

C. Prescription. The defendants contend the public acquired N.W. 78th Avenue by prescription based upon the public’s use of the road for more than ten years and the owner’s acquiescence in this use. An easement by prescription “ ‘is similar to the concept of adverse possession.’ ” Brede v. Koop, 706 N.W.2d 824, 828 (Iowa 2005) (citation omitted); see also 3 Am.Jur.2d Adverse Possession § 8, at 93-94 (2002) (stating the principal difference between adverse possession and prescription is the right acquired: full title to the property and an easement, respectively). It “is created when a person uses another’s land under a claim of right or color of title, openly, notoriously, continuously, and hostilely for ten years or more.” Johnson v. Kaster, 637 N.W.2d 174, 178 (Iowa 2001).

The defendants’ position that the public obtained a prescriptive easement in the road is unsound because no right of prescription may be acquired against the government. See United States v. Osterlund, 505 F.Supp. 165, 168 (D.Colo.1981); Sioux City v. Betz, 232 Iowa 84, 85, 4 N.W.2d 872, 873 (1942); Twining v. City of Burlington, 68 Iowa 284, 285, 27 N.W. 243, 243 (1886); 3 Am.Jur.2d Adverse Possession § 268, at 305-06 (“[T]itle to public lands cannot be acquired by adverse possession as against the United States, a state, or local governmental bodies, except as may be provided specifically by statute.” (Footnotes omitted.)). This rule was explained many years ago by the United States Supreme Court in a dispute between the state of California and the federal government over rights to certain offshore property:

And even assuming that Government agencies have been negligent in failing to recognize or assert the claims of the Government at an earlier date, the great interests of the Government in this ocean area are not to be forfeited as a result. The Government, which holds its interests here as elsewhere in trust for all people, is not to be deprived of those interests by the ordinary court rules designed particularly for private disputes over individually owned pieces of property; and officers who have no authority at all to dispose of Government property cannot by their conduct cause the Government to lose its valuable rights by their acquiescence, laches, or failure to act.

United States v. California, 332 U.S. 19, 39-40, 67 S.Ct. 1658, 1669, 91 L.Ed. 1889, 1900 (1947), superceded on other grounds by statute, Submerged Lands Act of 1953, ch. 65, 67 Stat. 29, as recognized in James v. State, 950 P.2d 1130, 1134 (Alaska 1997).

The lease admitted into evidence stated the road was a “federally owned roadway.” There was no evidence that any other entity or person owned the road in question. Therefore, as a matter of law, the defendants cannot rely on the doctrine of prescription to establish that this federal land had become a public road owned by the state or county.

V. Summary.

The evidence is sufficient to support the jury’s finding that the defendants trespassed on private land when they stepped into the right-of-way of N.W. 78th Avenue in front of the STARC Armory. The record also supports a factual finding that this federally owned roadway is not a public road. The public use permitted by the Corps and the Guard did not establish a dedication of the road to the public, and the public cannot obtain prescriptive rights to this road because it is owned by the federal government. Finding no error in the trial court’s refusal to enter judgments of acquittal, we affirm.

AFFIRMED.

      . The defendants also complain that the district court reviewing the jury verdicts erroneously placed the burden of proof as to the status of the road on the defendants. Even if the defendants are correct, the supreme court’s review is focused on the judgments of conviction entered by the trial court. There is no claim made on appeal that the jury was incorrectly instructed as to the burden of proof. Therefore, any error made by the district court sitting as a reviewing court does not affect the validity of the jury’s verdict. Consequently, we do not consider whether the reviewing court properly analyzed the issues presented to it.


text:
    STATE of Iowa, Appellee, v. William BASINGER, Frank Cordaro, Carla Dawson, Gilbert Dawes, Jeanne Firth, Fran Fuller, James Johnson, Jane Magers, Michael Schorsch, Marian Soloman, Brian Terrell, Carolyn Walker, and Elton Davis, Appellants.
    No. 05-0621.
    Supreme Court of Iowa.
    Sept. 22, 2006.

      Sally Frank, Drake University Legal Clinic, Des Moines, and Judie Levy, Student Legal Intern, for appellants Basinger, Cordaro, Dawson, Dawes, Firth, Fuller, Johnson, Magers, Schorsch, Soloman, Terrell and Walker.
    Tara Elcock, Des Moines, for appellant Davis.
    Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, John P. Sarcone, County Attorney, Olu-bunmi Salami, Assistant County Attorney, and Tanya Fawcett, Student Legal Intern, for appellee.
   LAVORATO, Chief Justice.

In this appeal, we are asked to determine whether the clerk of the district court correctly taxed each jointly tried defendant convicted of a simple misdemeanor a jury fee of $100 pursuant to Iowa Code section 625.8(1) (2003) and a court reporter fee of $15 per day pursuant to Iowa Code section 625.8(2). We conclude the clerk correctly taxed the jury and court reporter fee to each nonindigent defendant. However, because of Iowa Rule of Criminal Procedure 2.67(9), the clerk incorrectly taxed the court reporter fee to the indigent defendants. Accordingly, we affirm in part and reverse in part the judgment of the district court and remand the case for a correct entry of costs.

I. Background Facts and Proceedings.

On March 22, 2003, a number of individuals gathered across the street from the STARC Armory in Johnston, Iowa to protest the war in Iraq. A security officer with the Armory warned the protestors that they would be arrested for trespass if they crossed a tar line on the road. Disregarding the warning, the protestors crossed the line. They also disregarded the officer’s warning that if they did not leave they would be arrested.

Later that day, William Basinger, Frank Cordaro, Elton Davis, Carla Dawson, Gilbert Dawes, Jeanne Firth, Fran Fuller, James Johnson, Jane Magers, Michael Schorsch, Marian Soloman, Brian Terrell, and Carolyn Walker (the defendants) were arrested and charged with trespass, a simple misdemeanor, in violation of Iowa Code sections 716.7(2)(b) and 716.8(1). Dawson was arrested later than the others. She had crossed the tar line to take pictures of the group, was told she would be arrested if she did not leave, and did not leave after being warned.

The defendants pleaded not guilty and made a jury demand. The defendants were jointly tried, and a jury found each defendant guilty of the charge. Later, the district court imposed the following sentence on each defendant: $50 fine (pursuant to Iowa Code section 903.1(l)(a)), 30% criminal penalty surcharge (pursuant to Iowa Code sections 903.1(4) and 911.2), $125 law enforcement initiative surcharge (pursuant to Iowa Code section 911.3(l)(a)), and court costs. In addition, the defendants were each taxed as costs the full amount of the court reporter fee and the jury fee; those fees were not apportioned among the defendants.

The defendants appealed to the district court, which affirmed each conviction. The court concluded no errors were committed by the clerk in taxing the costs to the defendants. In so concluding, the court noted that each defendant was given a file and unique case number, the cases could have been tried individually, and a separate finding of guilt was entered for each of the defendants. As to the court reporter fee, the court noted that it could not find anything in the record that showed only two indigent defendants requested a transcript. The court concluded that because none of the defendants opted out of the trial with a court reporter, court reporter fees were properly taxed to each defendant.

We granted the defendants’ application for discretionary review. See Iowa R.App. P. 6.201-6.203 (rules governing discretionary review).

II. Issues.

The defendants raise the question whether jointly tried defendants should each be taxed the full amount of the jury and court reporter fees. Additionally, the defendants raise the question whether all defendants should have been taxed the full court reporter fees when, according to the defendants, only indigent defendants requested a court reporter.

III. Scope of Review.

Because resolution of the issues raised turns on interpretation of statutes, our review is for correction of errors at law. Hansen v. Cent. Iowa Hosp. Corp., 686 N.W.2d 476, 479 (Iowa 2004).

IV. Taxation of Jury and Court Reporter Fees.

Iowa Code section 625.8(1) provides that “[t]he clerk of the district court shall tax as a court cost a jury fee of one hundred dollars in every action tried to a jury.” Iowa Code section 625.8(2) provides that “[t]he clerk of the district court shall tax as a court cost a fee of fifteen dollars per day for the services of a court reporter.” The clerk of the district court taxed each defendant $100 as a jury fee and $150 as a court reporter fee. (Because a court reporter was needed for the eight-day trial and two additional hearings, the court reporter fee amounted to $150.)

The defendants contend the clerk should have apportioned the $100 jury fee among the thirteen defendants requiring each defendant to pay 1/13 of the fee or $7.69. The defendants contend that the clerk should also have apportioned the $150 court reporter fee among the thirteen defendants requiring each defendant to pay 1/13 of the fee or $11.54.

Not surprisingly, the State disagrees. The State notes that the words “every action” in the jury fee statute supports the district court’s ruling that the clerk committed no error in taxing a jury fee of $100 against each defendant. See Iowa Code § 625.8(1). “Action,” the State asserts, is defined as “any judicial proceeding, which, if conducted to a determination, will result in a judgment or decree.” Black’s Law Dictionary 31 (8th ed.2004). In this case, the State argues, thirteen judgments of guilty were entered as a result of thirteen actions tried to a jury; the clerk accordingly taxed court costs for each judgment entered. The State relies on the same reasoning to support the district court ruling that the clerk committed no error in taxing a court reporter fee of $15 per day against each defendant for each of the hearings.

This court has long been committed to the rule that costs are not apportioned in criminal cases. See, e.g., City of Cedar Rapids v. Linn County, 267 N.W.2d 673, 674 (Iowa 1978); State v. Belle, 92 Iowa 258, 260-61, 60 N.W. 525, 526 (1894); State v. Verwayne, 44 Iowa 621, 621 (1876). In Belle, this court held that the predecessor statutes to what are now Iowa Code sections 625.1 (costs recoverable by the successful party against the losing party), 625.3 (court can make an equitable apportionment of costs when a party is successful on part of the party’s demand), and 625.4 (apportionment among numerous parties) do not apply to criminal prosecutions. See City of Cedar Rapids, 267 N.W.2d at 674 (citing Belle, 92 Iowa at 260, 60 N.W. at 526, for this proposition). In reaching its conclusion, the court in Belle reasoned as follows:

It seems to us clear from the language of these sections that they do not apply to criminal prosecutions. In criminal prosecutions the party is successful as to all or as to no part of his demand, the demand upon the one hand being guilty, and upon the other, innocent. Though there may be several defendants and several judgments, there can be but one plaintiff; and, where there are several defendants and several judgments, the costs follow the judgment without apportionment.

92 Iowa at 260-61, 60 N.W. at 526 (reversing district court’s apportionment of court costs among the defendant, the county, and the state and taxing all of the costs to the defendant in a murder case; the district court had apportioned the costs because the jury found defendant guilty of a lesser included offense).

We adopt the rule that costs are to be taxed by the case, that is, one fee for each case. Such a rule is in harmony with the jury and court reporter fee statutes and the no apportionment rule. The rule makes sense because each defendant here had a case file with a separate case number and each had a case presented to the jury for which a court reporter was used. It was necessary for the prosecution to present evidence specific to each defendant to prove the charge against each defendant. Viewed in this manner, the rule also eliminates the defendants’ objection that the clerk here was trying to recover multi-pie times for the same costs. Accordingly, we conclude each defendant was properly taxed a jury fee of $100 for his or her case and a court reporter fee of $15 per day except as to the indigent defendants, as we discuss later in this opinion.

V. Whether All Defendants Should be Taxed Court Reporter Fees.

Iowa Rule of Criminal Procedure 2.67(9), pertaining to simple misdemeanors, provides in relevant part:

The proceedings upon trial shall not be reported, unless a party provides a reporter at such party’s expense.... If the defendant is indigent and requests that the proceedings upon trial be reported, the judicial magistrate shall cause them to be reported by a reporter ... at public expense.

Iowa R.Crim. P. 2.67(9).

The defendants contend that only two of the defendants, both of whom were indigent, requested court reporter services and that none of the defendants who had funds made such a request. The defendants further contend that the rule does not shift the costs to the defendant at the end of trial as part of the costs of the action but only states that the reporter will be provided at public expense. In these circumstances, the defendants conclude, none of the defendants should have to pay the court reporter fee because the rule only provides that the reporter will be provided at public expense.

We agree with the defendants that court reporter fees cannot be taxed against the indigent defendants because rule 2.67(9) clearly provides otherwise. However, contrary to the defendants’ contention, the rule only exempts indigent defendants and says nothing about a blanket exemption for all other jointly tried defendants. For this reason, we think the defendants are reading the rule too broadly.

The record fails to show that any of the nonindigent defendants objected to having the proceedings reported. They had the advantage of such services, and we consider their silence as a waiver of any objection to having the proceedings reported. Having failed to object, they are responsible for the court reporter fee.

We disagree with the district court’s holding that Iowa Code section 815.9(3) somehow obligates the indigent defendants in this case for the court reporter fee. That provision provides:

If a person is granted an appointed attorney, the person shall be required to reimburse the state for the total cost of legal assistance provided to the person. “Legal assistance” as used in this section shall include not only an appointed attorney, but also transcripts, witness fees, expenses, and any other goods or services required by law to be provided to an indigent person entitled to an appointed attorney.

Iowa Code § 815.9(3) (first emphasis added). As the defendants point out, none of the defendants requested or was granted a court-appointed attorney. We agree with the defendants that by its language section 815.9(3) does not apply.

The State cites Iowa Code section 815.13 to uphold the district court ruling. That provision provides:

The county or city which has the duty to prosecute a criminal action shall pay the costs of depositions taken on behalf of the prosecution, the costs of transcripts requested by the prosecution, and in criminal actions prosecuted by the county or city under county or city ordinance the fees that are payable to the clerk of the district court for services rendered and the court costs taxed in connection with the trial of the action or appeals from the judgment. The county or city shall pay witness fees and mileage in trials of criminal actions prosecuted by the county or city under county or city ordinance. These fees and costs are recoverable by the county or city from the defendant unless the defendant is found not guilty or the action is dismissed, in which case the state shall pay the witness fees and mileage in cases prosecuted under state law.

Iowa Code § 815.13. Because the district court did not consider this provision in its ruling, we will not consider it for the first time on appeal. See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002) (holding that court will not consider an issue raised for the first time on appeal). Moreover, we have serious doubts whether the statute even applies.

VI. Disposition.

In sum, we conclude that the clerk of the district court correctly taxed a jury fee of $100 to each defendant. The clerk also correctly taxed a court reporter fee of $15 per day to each nonindigent defendant but incorrectly taxed such fee to the indigent defendants. Accordingly, we affirm in part and reverse in part the judgment of the district court and remand the case for a correct entry of costs.

AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS.


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    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Rodney T. CARROLL, Respondent.
    No. 06-0587.
    Supreme Court of Iowa.
    Sept. 22, 2006.

      Charles L. Harrington and Wendell J. Harms, Des Moines, for complainant.
    Rodney T. Carroll, Dubuque, pro se.
   LAVORATO, Chief Justice.

In this lawyer disciplinary proceeding, we review the Grievance Commission’s recommendation that Rodney T. Carroll’s license to practice law in Iowa be revoked for theft of money entrusted to him. Upon our de novo review, we agree with the Commission’s recommendation.

I. Facts.

We find the following facts. Rodney T. Carroll was admitted to practice in Iowa and began practicing in September 1999. He worked at the O’Connor & Thomas law firm in Dubuque, Iowa. In 2000 he was admitted to practice in Wisconsin.

Carroll served as an adjunct professor at Loras College where he coached the college’s mock trial teams. He held that position until the spring of 2003 when he resigned because of other professional commitments unrelated to these events.

The Dubuque Arts Council (Council) is a nonprofit group that provides educational and entertainment opportunities in the performing arts through the sponsorship of artist residencies. During their residencies, which typically last two weeks, the artists live and perform in the Dubuque area. The artists travel throughout the area school systems bringing into the classrooms arts-based education, which schools typically cannot afford. The Council also sponsors a free summer concert series in the Dubuque Arboretum and other events. Donors and grants support the Council’s activities.

Carroll became involved with the Council in 2000. He initially served on Council committees. In May 2002 Carroll was elected president and was reelected president in May 2003. At the time of Carroll’s reelection, the long-time Council treasurer resigned. Because there was no one to replace him, the treasurer simply turned over the Council’s check book to Carroll, who was an authorized signatory on the account. Later in the month, Carroll took possession of the Council’s credit (debit) card.

Shortly after taking over the treasurer’s duties, Carroll faced a personal budget shortfall. According to Carroll, his expenses were outpacing his income because of poor budget decisions on his part. On June 1, 2003, gas service at Carroll’s home was terminated because he had failed to pay the gas bill on time. Because he was short of cash, Carroll paid the gas bill with the Council’s credit card in the amount of $1131.85.

On June 3 Carroll wrote a check on the Council’s account for $5000, which he deposited into his personal bank account. On June 27 Carroll wrote a check on the Council’s account for $500, which he deposited into his personal bank account. On July 11 Carroll used the Council’s credit card to purchase merchandise for $27.65 from Dubuque Discount Gas, to purchase services for $89.22 from OnStar, and to purchase services for $137.28 from Sheraton Hotels.

On July 14 Carroll wrote a check on the Council’s account for $1500, which he deposited into his personal account. On the same day Carroll used the Council’s credit card to purchase merchandise from a restaurant for $63. On July 15 Carroll wrote a check on the Council’s account for $1000, which he deposited into his personal account.

The amount of these withdrawals and purchases totaled $9449. All of these transactions were without the Council’s knowledge, consent, or authorization. In the months of June and July, Carroll paid Council obligations in the amount of $1500 from his personal account, reducing the total amount of the unauthorized withdrawals and expenditures to $7449.

In July the Council learned of Carroll’s unauthorized use of Council funds. Council representatives and its attorney immediately confronted Carroll about his actions. Carroll ultimately paid back all of the money he had misappropriated. In addition Carroll reimbursed the Council $1255 for the cost of an audit necessitated by his actions. Because of Carroll’s misconduct, the Council received negative publicity causing its fundraising activities to suffer for the next six to eight months.

In July Carroll reported his actions to the Iowa Supreme Court Attorney Disciplinary Board. Carroll was unaware that the Council’s attorney had also reported the matter to the Board. Although Carroll did not report the matter to the Wisconsin Bar Association, a member of his firm did. The Wisconsin Bar Association summarily suspended Carroll’s Wisconsin license, delaying any further action until our decision on this matter.

In August Carroll resigned from his law firm. In October Barnstead International hired him as a regulatory specialist to help the company with its relationship with the Food and Drug Administration. Barn-stead International hired Carroll with full knowledge of his wrongdoing in this matter. Two years later, the company promoted Carroll to manager of the regulatory affairs department. In that position he has a six-person staff reporting to him, and he manages a $400,000 budget.

In February 2004 Carroll was charged with second-degree theft, a class D felony, in violation of Iowa Code sections 714.1(1), 714.1(3), and 714.2(2) (2003). He pled guilty to that charge for which he received a deferred judgment. Carroll was placed on probation for twenty-four months and ordered to complete 100 hours of approved community service.

II. Disciplinary Proceedings.

On November 21, 2005, the Iowa Supreme Court Attorney Disciplinary Board filed a complaint against Carroll. The complaint alleged the foregoing unauthorized transactions as well as the criminal charge and its disposition. As a result of that behavior, the Board alleged that Carroll violated the following provisions of the Iowa Code of Professional Responsibility for Lawyers: DR 1-102(A)(3) (lawyer shall not engage in illegal conduct involving moral turpitude); DR 1-102(A)(4) (lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); DR 1-102(A)(5) (lawyer shall not engage in conduct that is prejudicial to the administration of justice); and DR 1-102(A)(6) (lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law).

Carroll did not file an answer to the complaint. His failure serves as an admission of the allegations of the complaint, leaving the Commission with the determination of what sanction is appropriate. See Iowa Ct. R. 36.7 (“If a respondent fails or refuses to file such answer within the time specified, the allegations of the complaint shall be considered admitted, and the matter shall proceed to a hearing on the issue of the appropriate sanction.”).

The Commission heard the matter on March 16, 2006. A Council representative testified. Carroll represented himself and made a statement in which he expressed remorse. He stated that at the time of the unauthorized transactions, he intended to reimburse the Council. He explained that he planned to use funds from the sale of his house to do so.

The Commission concluded that Carroll had violated all of the disciplinary rules as charged and unanimously recommended that Carroll’s license to practice law be revoked without the possibility of reinstatement.

III. Scope of Review.

We review attorney disciplinary cases de novo. Iowa Ct. R. 35.10(1). Although we give respectful consideration to the Commission’s recommendation, this court decides what discipline is appropriate under the unique facts of each case. Iowa Sup.Ct. Bd. of Prof'l Ethics & Conduct v. Shinkle, 698 N.W.2d 316, 318 (Iowa 2005).

IY. Ethical Violations.

The Board has the burden to prove the alleged violations by a convincing preponderance of the evidence. Iowa Sup.Ct. Att’y Disciplinary Bd. v. Dull, 713 N.W.2d 199, 201 (Iowa 2006). As mentioned, Carroll’s failure to file an answer to the Board’s complaint serves as an admission of the allegations of wrongdoing.

Like the Commission, we find the Board proved the violations of the disciplinary rules as alleged in its complaint. In Iowa Supreme Court Board of Professional Ethics & Conduct v. Bell, an attorney, while serving as treasurer of a nonprofit organization, misappropriated money from it. 650 N.W.2d 648, 649-50 (Iowa 2002). We concluded that the attorney engaged in illegal conduct involving moral turpitude, engaged in conduct involving dishonesty, and engaged in conduct that adversely reflects on the fitness to practice law in violation of DR 1-102(A)(3)-(4), (6). Id. at 651-52. Like Bell, Carroll violated DR 1 — 102(A)(3)—(4), (6), when he took money from the Council.

A lawyer who commits a felony violates DR 1 — 102(A)(5), which prohibits conduct prejudicial to the administration of justice. Iowa Sup.Ct. Bd. of Prof'l Ethics & Conduct v. Lyzenga, 619 N.W.2d 327, 330 (Iowa 2000). Carroll pled guilty to second-degree theft, which is a felony. The fact that he received a deferred judgment does not excuse the violation of this disciplinary rule. See Comm. on Prof'l Ethics & Conduct v. Patterson, 369 N.W.2d 798, 801 (1985) (“[W]hen those licensed to operate the law’s machinery knowingly violate essential criminal statutes, there inexorably follows an intensified loss of lay persons’ respect for the law.”).

Having found that the Board proved the violations as alleged in the complaint, we now turn to the question of the appropriate discipline.

V. Discipline.

In Bell we stated the reasons that guide us in determining what is an appropriate sanction in a particular case:

The appropriate sanction in a particular case depends upon several factors that reflect the broad purpose of our disciplinary system. The disciplinary process is intended to protect not only the public, but also our system of justice. Therefore, we consider the nature and extent of the respondent’s ethical violations not only to determine the respondent’s fitness to practice law, but also to assess the need to deter other lawyers from similar misconduct. Only by ensuring that such conduct does not become commonplace or acceptable can we maintain the reputation of the bar and safeguard the integrity of our system of justice and the public’s confidence in it.

Bell, 650 N.W.2d at 652 (citations omitted).

As in Bell, the nature of Carroll’s ethical violations is indeed serious. Several times over, we have said that “ ‘it is almost axiomatic that the licenses of lawyers who convert funds entrusted to them should be revoked.’ ” Iowa Sup.Ct. Bd. of Prof'l Ethics & Conduct v. Anderson, 687 N.W.2d 587, 590 (Iowa 2004) (citation omitted). We have noted that “[ijnstances in which revocation has not been ordered for the taking of client’s money or fiduciary funds have involved situations in which the attorney had a colorable future claim to the funds or did not take the funds for [the lawyer’s] own use.” Id. (citing those instances). We likewise have made clear that we have not hesitated to revoke a license in situations in which the converted funds have been returned prior to any discovery by the client or third party. Id. Nor have we been deterred from revoking a lawyer’s license because the funds converted were not client funds or because the attorney was not acting in the capacity of an attorney at the time of the misconduct. Bell, 650 N.W.2d at 652.

Carroll had no colorable claim to the funds, no authority to use the credit card, and no authority to make the withdrawals as he did. As in Bell, Carroll “simplfy] ... stole someone else’s money.” Id. at 655. He did this not once, but nine times. Moreover, his conduct caused harm to the Council — a temporary decline in donations, likely attributable to the negative publicity generated by Carroll’s actions. In short, we think Carroll’s actions are just too serious to warrant any discipline less than revocation. Accordingly, we revoke Carroll’s license to practice law in this state. Costs are taxed to Carroll. See Iowa Ct. R. 35.25(1).

LICENSE REVOKED.


text:
    STATE of Iowa, Appellee, v. Phillip Dean McFARLAND, Appellant.
    No. 03-2034.
    Supreme Court of Iowa.
    Sept. 22, 2006.
    Christopher Kragnes, Sr., of Kragnes, Tingle & Koenig P.C., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, and Jean C. Pettinger and William A. Hill, Assistant Attorneys General, John P. Sar-cone, County Attorney, Steve Foritano and George Karnas, Assistant County Attorneys, for appellee.
   LAVORATO, Chief Justice.

Phillip McFarland appeals from a district court ruling denying all of his claims as set out in his petition challenging restitution judgments in three cases, which were combined for hearing. We transferred the case to the court of appeals, which affirmed in part, reversed in part, and remanded the case for further proceedings. We granted McFarland’s application for further review.

We conclude the court of appeals erred when it apportioned the court reporter fee of fifteen dollars per day pursuant to Iowa Code section 625.8(2) (2003) among the three eases, contrary to the district court’s ruling that such fee is to be taxed as to each case. Accordingly, we vacate the court of appeals decision and affirm the district court judgment.

I. Background Facts and Proceedings.

McFarland was sentenced to a fifteen-year prison sentence for convictions in three separate criminal cases: SR 111588 (conspiracy to commit second-degree burglary, assault causing bodily injury, and false imprisonment), FE 111646 (second-degree burglary), and FE 111876 (two counts of impersonating a public official and two counts of false imprisonment). Sentencing orders in those cases required McFarland to pay court-appointed attorney fees to the extent he was reasonably able to do so and court costs. Because the amounts of restitution were not available, the sentencing orders stated that supplemental orders would follow.

Supplemental orders were entered in each case detailing the amount of attorney fees and court costs McFarland was required to pay. The clerk of district court sent the supplemental restitution orders to the Iowa Department of Corrections but neglected to send copies of the orders directly to McFarland. The department then prepared plans of restitution in each case and provided the plans to McFarland. When McFarland received the plans from the department, he requested copies of the supplemental restitution orders from the clerk of the district court. The clerk refused to provide such copies based on the mistaken belief that the department would provide copies of the orders to McFarland. McFarland then requested the copies from the department for which he had to pay the department copying charges of $3.82.

On May 7, 2003, McFarland filed a “petition to strike or modify restitution plan” in the district court, challenging the plans on a number of grounds. Following two hearings, the district court rejected all but one of McFarland’s challenges. One of those rejected challenges was to the clerk’s taxation of court reporter fees to McFarland. Iowa Code section 625.8(2) provides that the “clerk of the district court shall tax as a court cost a fee of fifteen dollars per day for the services of a court reporter.” McFarland contended that section 625.8(2) authorizes only one fee to be taxed per day and that the fifteen-dollar fee should have been apportioned among the three cases.

McFarland appealed, raising numerous issues. We transferred the case to the court of appeals, which affirmed the district court ruling in all respects except one. The court concluded the clerk should have taxed only one court reporter fee for a single hearing and that fee should have been taxed proportionately to each case combined for that hearing. The court reversed the district court ruling on this issue and remanded the case with instructions that the court costs be taxed in accordance with its opinion. The court of appeals did not address McFarland’s contention that the clerk of court should be ordered to reimburse him $3.82 that he had to pay the department to obtain copies of the supplemental restitution orders.

McFarland filed an application for further review, which we granted.

Because we conclude the court of appeals was correct with respect to the issues upon which it affirmed, we do not address those issues. We will restrict our discussion to the court-reporter-fee issue and the claim for reimbursement. See Anderson v. State, 692 N.W.2d 360, 363 (Iowa 2005) (holding that this court on further review can review any or all of the issues raised on appeal).

II. Court Reporter Fee.

As noted, Iowa Code section 625.8(2) provides that “[t]he clerk of the district court shall tax as a court cost a fee of fifteen dollars per day for the services of a court reporter.” In State v. Basinger, 721 N.W.2d 783 (Iowa 2006), we confirmed our long-standing rule that court costs are not apportioned in criminal cases. Basinger, 721 N.W.2d at 786. In applying section 625.8(2), we adopted the rule that costs are to be taxed “by the case, that is, one fee for each case.” Id. at 786. In Basinger, a multidefendant trial, we concluded that each defendant was properly taxed a court reporter fee of fifteen dollars per day. Id. at 787.

Applying the one-fee-for-each-case rule here, we conclude, contrary to the court of appeals decision, that the district court was correct in holding that the clerk of district court properly taxed a court reporter fee of fifteen dollars per day for each case. McFarland had to present evidence specific to each case for which a court reporter was used whether the case was heard separately or in a combined hearing. Thus, contrary to McFarland’s contention, the clerk’s taxation of costs did not constitute double billing. See Basinger, 721 N.W.2d at 786-87 (“The rule makes sense because each defendant here had a case file with a separate case number and each had a case presented to the jury for which a court reporter was used. It was necessary for the prosecution to present evidence specific to each defendant to prove the charge against each defendant. Viewed in this manner, the rule also eliminates the defendants’ objection that the clerk here was trying to recover multiple times for the same costs.”).

III. Claim For Reimbursement.

Although the court of appeals did not address this issue, the district court did. The district court had it right when it declined to address the issue whether the clerk of court would be liable to McFarland for the copying charges because the clerk is not a party to this action.

IV. Disposition.

In sum, we conclude the court of appeals erred in apportioning the court reporter fee among McFarland’s three cases. Accordingly, we vacate the court of appeals decision and affirm the district court judgment.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.