author: SABERS, Justice. MILLER, Chief Justice

text:
    2000 SD 92
    Dean MACK and Nancy Mack, Plaintiffs and Appellees, v. Dale MACK and Debra Mack, Defendants and Appellants, A.J. Mack and Mary Mack, Intervenors and Appellants.
    Nos. 21235, 21248.
    Supreme Court of South Dakota.
    Considered on Briefs May 30, 2000.
    Decided July 12, 2000.

      Thomas J. Linngren of Green, Schulz, Roby, Oviatt, Cummings & Linngren, Wa-tertown, South Dakota, Attorneys for plaintiffs and appellees.
    Lee Schoenbeck, Watertown, South Dakota, Attorney for defendants and appellants.
    Raymond D. Rylance of Wiles & Ry-lance, Watertown, South Dakota, Attorneys for intervenors and appellants
   SABERS, Justice.

[¶ 1.] Dean Mack commenced proceedings to dissolve his partnership with his brother, Dale Mack. A.J. and Mary Mack, the parents of Dale and Dean, intervened. The trial court granted Dean’s petition for dissolution of the partnership and distributed the partnership assets. Dale appeals raising six issues, including one issue raised by intervenors. We affirm.

FACTS

[¶ 2.] A.J. and Mary Mack have nine children, seven girls and two boys, Dale and Dean. They raised their family on a 560-acre dairy farm, which dates back to 1944. In 1985, A.J. was the sole owner of the farm. When his sons graduated from high school, Dale in 1978 and Dean in 1986, A.J. employed them on the farm. During those years of employment, both Dale and Dean purchased equipment to be used in the farming operation. Neither Dale nor Dean was compensated for A.J.’s use of this machinery for the farm.

[¶ 3.] On November 8,1988, due to A.J.’s failing health, A.J. and Mary executed a farm lease to Dale and Dean, effective from January 1, 1989 to December 31, 1994. The rent was specified at $1,125 per month, or $562.50 payable by each tenant. A. J. and Mary also executed a lease agreement for seventy-two cows and one bull to Dale and Dean for $500 per month, or $250 payable by each tenant. Dale and Dean orally agreed, between themselves, to form a partnership and to continue the farming operation. A.J. allowed them to use his farm machinery, feed and hay in the operation of the partnership. Dale and Dean also contributed the machinery they acquired individually for use by the partnership.

[¶ 4.] Dale and Dean each initially paid monthly rent of $812.50 to A.J. During the course of the lease, A.J. experienced financial difficulties and each partner increased the monthly cash rent to $1,000.

[¶ 5.] When the leases expired on December 31, 1994, the parties continued operating under a similar oral agreement throughout 1995. In 1995, A.J. and Mary executed a contract for deed to sell the farm to Dale and Dean for $255,000, payable over twenty years, with Dale and Dean each paying $1,000 per month beginning January of 1996. The contract for deed specified that Dale and Dean each owned one-half interest in the farm as tenants in common. A.J. and Mary retained a life estate in their home located on a parcel of land referred to as the “Homeplace.” There was also testimony that in return for such a financially favorable price, Dale and Dean agreed to provide for their parents’ needs for the rest of their lives. However, this “promise” was not reduced to writing.

[¶ 6.] During the term of the partnership, Dean lived two miles from the farm. Dale lived near Castlewood, which is several miles from the farm because his wife, Debra, was employed as a school teacher in Castlewood. During this time, the brothers ate three meals a day at A. J. and Mary’s home. Dale and Dean provided for their parents by removing snow, paying their utilities, occasionally repairing their home, cleaning the yard, giving them extra money to pay medical bills and supplying them with fresh milk and meat.

[¶ 7.] In late fall of 1996, Dean discussed building a house close to the Homeplace with A.J. and Mary. He testified that he was tired of renting and driving two miles to the farm several times a day to check the cattle, etc. and would like to be closer to the farm. He discussed this with Mary, who initially approved of Dean’s proposed building site, but changed her mind the next day.

[¶ 8.] In the spring of 1997, Dean told Dale that he wanted to build a house on the partnership property. Dale thought Dean wanted to build on the “Walford” section, a parcel of land located one mile from the Homeplace. However, it was not until late fall of 1997 that Dean told Dale that he wanted to remove some trees in the Homeplace shelterbelt and build his house a few hundred feet directly north of A.J. and Mary’s house. Dale suggested that Dean build his house on the “Walford” section or north of the shelterbelt. Dean insisted on building his home in the shel-terbelt. It was at this point that the relationship deteriorated.

[¶ 9.] Dean left the farm on November 30, 1998 and sought dissolution proceedings. A.J. and Mary were allowed to intervene prior to trial.

[¶ 10.] The case was tried on May 20-21, 1999. On September 3, 1999, the trial court terminated the partnership, divided the assets and liabilities, and dismissed with prejudice the claims of Dale against Dean and the claims of A.J. against Dale and Dean. A.J. appeals raising one issue and Dale appeals raising six issues, including the one raised by A. J.

STANDARD OF REVIEW

[¶ 11.] The trial court’s findings of fact are reviewed under the clearly erroneous standard. That is, we will not disturb them unless we are “ 'firmly and definitely convinced a mistake has been made.’ ” Engels v. Ranger Bar, Inc., 2000 SD 1, ¶ 14, 604 N.W.2d 241, 244-45 (quoting Wood v. SD Cement Plant, 1999 SD 8, ¶ 9, 588 N.W.2d 227, 229 (other citations omitted)). Conclusions of law are fully reviewable under a de novo standard. Id.

[¶ 12.] 1. WHETHER DEAN’S TERMINATION OF THE PARTNERSHIP VIOLATED THE PARTNERSHIP AGREEMENT.

[¶ 13.] Dale argues that Dean wrongfully sought dissolution because Dale would not consent to Dean’s proposed use of partnership property for his personal use. He also contends that the partnership was functioning for the particular purpose for taking care of their parents and Dean wrongfully dissolved the partnership. Therefore, Dale concludes' that Dean is liable to him for damages caused thereby under SDCL 48-5-30(2).

[¶ 14.] The trial court found:

There is no evidence of an agreement by the partners that the partnership would continue, at a minimum, until the death of A.J. and Mary. There is no evidence of an agreement by the partners that it would only go on so long as A.J. and Mary were living. There is no evidence of an agreement by the partners that the partnership would end when the alleged obligation to support A.J. and Mary no longer existed, regardless of whether that would be within days, months, or years after the inception of . the partnership. The partnership was formed to farm indefinitely.

The trial court concluded that this was a partnership at will.

[¶ 15.] It is conceded that a partnership existed. The partnership agreement was oral. The duration was not definite nor was a purpose expressed in writing. Therefore, it is presumed that the purpose of the partnership was to “carry on as co-owners a business for profit.” SDCL 48-1-2. In other words, it was a partnership at-will:

A partnership formed without a time specified for its continuance, and not formed for a particular transaction or the completion of a particular enterprise, will be considered a partnership to endure so long as the parties continue their mutual consent. This type of partnership is known as a partnership at will.

59A Am.Jur.2d Partnership § 89 (1987). In such a situation, dissolution of the partnership can be sought “by the express will of any partner” at any time and for any reason. Id. (providing that the term of a partnership at will “does not extend ... for any longer time than their mutual consent allows.”).

[¶ 16.] Dale argues that the purpose of the partnership was to take care of their aging parents. This alleged purpose originates from the execution of the contract for deed; that is, Dale argues that he and Dean received a favorable price for the land in exchange for their promise to provide for their parents. However, the contract for deed is a separate and distinct venture from the partnership agreement. Therefore, while one unstated understanding underlying the execution of the contract for deed may have been to provide for the future needs of the aging couple, that understanding, if there was one, is not conclusive evidence that this was the purpose of the partnership. The trial court was not clearly erroneous in concluding that this partnership was at will. Therefore, Dale is not entitled to recover damages resulting from the dissolution.

[¶ 17.] Dale also argues that Dean breached a fiduciary duty to the partnership by insisting that partnership property be used for his personal benefit. He contends that this breach resulted in a wrongful dissolution of the partnership.

[¶ 18.] Once a partnership is created, the partners owe a fiduciary duty to one another. This duty between partners is “ ‘characterized by a loyalty of the highest order.’ ” Hayes v. Northern Hills General Hosp., 1999 SD 28, ¶ 54, 590 N.W.2d 243, 253 (quoting Glanzer v. St. Joseph Indian School, 438 N.W.2d 204, 211 (S.D.1989)). See also Pear v. Grand Forks Motel Assocs., 553 N.W.2d 774, 783 n6 (N.D.1996) (stating that “[t]he relationship between partners is confidential and fiduciary; they are trustees for each other, and they bear the obligation of the utmost good faith and integrity in their dealings with one another.” (citations omitted)). “The existence of a fiduciary duty and the scope of that duty are questions of law for the trial court.” Landstrom v. Shaver, 1997 SD 25, ¶ 84, 561 N.W.2d 1, 18 (citation omitted).

[¶ 19.] Here, there is substantial evidence in the record indicating that Dean wanted to build a home on partnership property so he could be readily available to work in the event that something unexpectedly happened. The trial court found that Dean’s living on the Homeplaee would have benefited the partnership. This is consistent with the presumed purpose of this partnership at will, which was to operate the farm to benefit the partnership.

[¶ 20.] In a partnership at will, each partner has an equal right in the management and operation of the business of the partnership and the ultimate conclusion is based on the majority votes. However, where the partnership consists of two partners who are equally divided and there is no written partnership agreement providing a settlement solution, “the only course of action is to dissolve the partnership.” Covalt v. High, 100 N.M. 700, 675 P.2d 999, 1002-03 (N.M.Ct.App.1983) cert denied 100 N.M. 631, 674 P.2d 521 (1984) (citation omitted) (holding that one partner may not recover damages for the failure of the co-partner to acquiesce in a demand that monthly rentals of partnership property be increased and that “there was no breach of a fiduciary duty.”).

[¶ 21.] Therefore, “[i]n the absence of a mutual agreement, or a written instrument detailing the rights of the parties, the remedy for such an impasse is a dissolution of the partnership.” Id. at 1003. The trial court was not clearly erroneous in refusing to award damages to Dale on the basis of a breach of fiduciary duty.

[¶ 22.] 2. WHETHER THE TRIAL COURT ERRED IN DENYING UNJUST ENRICHMENT DAMAGES TO AJ.

[¶ 23.] A.J. argues that the trial court erred in valuing his inventory claim of feed and grain at zero. He claims that he is entitled to be “compensated for the use of their inventory that enabled Dean and Dale to start up their farming operation in a very favorable position,” an amount of $69,750. He asserts that the partnership’s use of his inventory was conditioned on Dale and Dean caring for A.J. and Mary for the rest of their lives and that the value of the inventory was to be paid sometime in the future. A.J. also argues that he is entitled to compensation in the amount of $110,400 for the use of his equipment by Dale and Dean from 1989 to the time of trial.

[¶ 24.] In combining these two values with $113,000 in accrued interest, A.J. claims that Dean owes him one-half of $293,450. Dale supports A.J.’s argument and claims that these resources were intended to remain in the partnership and working for the partners while the two cared for their parents, or at least until the year 2015, when the contract for deed was to be paid in full.

[¶ 25.] The trial court first determined that “[t]here is no evidence of a contract, oral or written,” providing that the partnership will compensate A.J. for the use of his inventory or machinery. The trial court then determined that A.J.’s unjust enrichment claim failed because the “land sale contract is complete unto itself.” It further stated:

In this case there is conflicting testimony about whether the price of the land, a good price, below market value,was given in exchange for the partners’ promise to take care of A.J. and Mary for the rest of their lives. Given the evidence, and the credibility of the witnesses, it is more likely than not that the good deal was not induced by, or a quid pro quo for, a promise of lifetime care.
Whatever the family discussions were about the price of land, the parties unequivocally stated in paragraph IV of the Contract for Deed that “As total consideration for the property ...” a certain sum was to be paid. No mention was made of the partners making a commitment to long term care of their parents ....

[¶ 26.] In Issue 1, we determined that the purpose of this partnership agreement was not to take care of A.J. and Mary for their lifetime, but to operate the farm to benefit the partnership. Therefore, A.J.’s argument that he is entitled to compensation based upon Dean’s alleged breach of this “promise” fails.

[¶ 27.] Unjust enrichment is an equitable doctrine. It occurs “when one confers a benefit upon another who accepts or acquiesces in that benefit, making it inequitable to retain that benefit without paying.” Parker v. Western Dakota Insurors, Inc., 2000 SD 14, ¶ 17, 605 N.W.2d 181, 187 (citing Juttelstad v. Juttelstad, 1998 SD 121, ¶ 19, 587 N.W.2d 447, 451 (other citations omitted)). When unjust enrichment is found, the law implies a contract, which requires the defendant to compensate the plaintiff for the value of the benefit conferred. In order to establish unjust enrichment, three elements must be proven: (1) a benefit was received; (2) the recipient was cognizant of that benefit; and (3) the retention of the benefit without reimbursement would unjustly enrich the recipient.

[¶28.] Here, A.J. cannot support his claim for unjust enrichment. Undoubtedly, the partnership received a benefit by not having to pay A.J. for the value of his inventory and the use of his machinery. Dean does not dispute that the partnership received a benefit; however, he claims that it was a gift.

[¶ 29.] In order to prove that Dean was unjustly enriched by the use of A.J.’s feed and machinery, there must be some convincing evidence establishing that this was not gratuitous. After hearing all the evidence, the trial court concluded that A.J. could not prove the funds were a loan because no agreement, expressed or implied, could be shown. It further concluded that the contract for deed provided that “As total consideration for the property ...” a sum certain was to be paid. If A. J. intended to be compensated for the value of his inventory as well as for the use of his machinery, he should have expressed it within the contract for deed.

[¶ 30.] Based on the evidence, the trial court concluded that the partnership’s use of A.J.’s inventory and machinery was a gift despite A.J.’s testimony that he did not intend to make a gift. This case is devoid of any evidence showing Dale and Dean were under an obligation to repay the money or that defendants either expressly or impliedly ever promised to repay it. “[T]he mere fact that one party benefits from the act of another is not of itself sufficient to> justify restitution.” Meehan v. Cheltenham Township, 410 Pa. 446, 189 A.2d 593, 596 (1963). The circumstances of this case do not require the law to imply a contract in order to avoid an injustice. Furthermore, unless there is injustice in a son’s acceptance of his father’s gift — a proposition few would support — there was no unjust enrichment here. We affirm.

[¶ 31.] 3. WHETHER DEAN SHOULD BE PROMISSORILY ESTOPPED FROM DENYING THE EXISTENCE OF A PARTNERSHIP AGREEMENT FOR A PARTICULAR PURPOSE.

[¶ 32.] Dale argues Dean should be promissorily estopped from denying that the partnership existed for the purpose of earing for A.J. and Mary. He claims that “Dean’s promise to A.J. and Dale allowed Dean to enter the partnership right out of high school with no capital as a farm laborer, and yet ten years later [take] substantial equity away from the partnership.”

[¶ 33.] In Issue I, supra, we held that the trial court correctly determined that this was a partnership at will and that the purpose of the partnership was not the lifetime care of A.J. and Mary. Thus, under these circumstances, we need not discuss this Issue further.

[¶ 34.] 4. WHETHER THE TRIAL COURT ERRED IN VALUING FIVE GRAIN BINS AND A HAY SHED AS PERSONAL PROPERTY.

[¶ 35.] Five grain bins and a hay shed were purchased and constructed on the Homeplace by Dale and Dean after A.J.’s retirement. Dale claims that the values of the grain bins and hay shed were included in the value of the real property. Therefore, he argues that the trial court erred in valuing them separately as personal property, thereby increasing the total valuation of the Homeplace by ten percent.

[¶ 36.] The valuation testimony was presented to the trial court by stipulation in Exhibits 25 and 26. Exhibit 25 reflects that both parties valued the Homeplace at $270,000 with a debt of $232,850. However, Exhibit 26, entitled “Partnership Personal Property and Values,” reflects that the parties stipulated to the following:

IN PLACE SOLD AT VALUE AUCTION VALUE
EZ Dry Bin 15,000 8,000
Hayshed 3,750 200
2 Air Bins (Per Compromise) 2 Steel Bins (Walfords) 11,000 5,000 1,000 1,000
TOTAL VALUES 30,750 14,200
PLUS COMPRISED FIGURE ABOVE 222,275 222,275
TOTAL VALUE OF PROPERTY 253,025 236,475

[¶ 37.] Clearly, the parties treated the grain bins and hay shed as personal property and not as fixtures. A value, separate from the value of the Homeplace, was assigned to the grain bins and hay shed by the parties. If Dale had intended that the grain bins and hay sheds be valued as a fixture to the Homeplace, he should have submitted a proposed value of zero on Exhibit 26. Based on the evidence presented, the trial court was not clearly erroneous in treating the grain bins and hay shed as personal property and assigning values to them separate from the value of the Homeplace.

[¶ 38.] 5. WHETHER THE TRIAL COURT ERRED IN DENYING INDIVIDUAL PARTNERSHIP ACCOUNTS.

[¶ 39.] Doug Uthe, a certified public accountant, submitted a written report and concluded that, prior to considering A.J.’s claims, the partnership accounts had a balance of $187,334 for Dean and $226,626 for Dale. Dale claims that the trial court did not calculate the partnership accounts in its findings of fact and conclusions of law and erred in failing to reimburse him the difference of $39,292 under SDCL 48-5-35, -37.

[¶ 40.] Dean points out that Dale and Dean did not follow the “normal” partnership accounting procedures. Instead of filing a partnership tax return and reporting their share of the income on their own individual tax returns, they divided all income and expenses evenly at the time of receipt or expenditure and then simply filed identical Schedule F’s, attached to their respective IRS 1040 forms. Hence, no running “capital accounts” were maintained, as presumed or proposed by Uthe. He asserts that Dale is attempting “to receive additional credit for the difference in the amount of [Dale’s] equipment” as compared to Dean’s. He claims this credit was already provided to Dale.

[¶ 41.] The record reflects that Dale and Dean each received their own equipment at the time of dissolution and such equipment was not part of the litigation.

[¶42.] Based on the evidence, it is not been shown that the trial court was clearly erroneous in denying individual partnership accounts.

[¶ 43.] 6. WHETHER THE TRIAL COURT’S DISTRIBUTION OF PARTNERSHIP ASSETS WAS ERROR.

[¶ 44.] In dissolving the partnership, the trial court partitioned the farm unit and distributed land to Dean. Dale requests that if we determine that Dean’s dissolution of the partnership was wrongful, the case be remanded. He claims that under SDCL 48-5-31, he has the right to continue the farm business and pay Dean the net amount owing.

[¶ 45.] Dean claims that that statute does not apply here unless the trial court erred in deciding that: (1) the partnership was at-will, and that (2) Dale wrongfully withheld his consent from Dean to construct a residence on partnership property. It has not been shown that the trial court erred on either.

[¶46.] Because we affirm Issue 1 that this was a partnership at will instead of a partnership for a definite term or for a specific undertaking, we find no error or reason to reconsider the allocation of partnership assets.

[¶ 47.] Affirmed.

[¶ 48.] AMUNDSON, KONENKAMP, and GILBERTSON, Justices, concur.

[¶ 49.] MILLER, Chief Justice, concurs in part and concurs in result in part.

MILLER, Chief Justice

(concurring in part and concurring in result in part).

[¶ 50.] Although I fully concur on Issues 1, 4 and 5, I can only concur in result on Issues 2, 3 and 6 because it was unnecessary to write on them for the reasons stated in the majority opinion at paragraphs 26, 33 and 46.

      . The partners kept calves in existing bams on the Walford section and checked on them two to three times per day.

      . In 1985, Dale married Debra and asked AJ. and Mary if they could build a house on the Homeplace. A.J. and Mary refused to allow them to build on the Homeplace, but told them they could build on the Walford section.
      Mary testified that a second home was never allowed on the Homeplace section and that all of her children were aware of that. Mary further testified that she did not get along with Dean’s wife, Nancy. Dean testified that he knew that his parents did not get along with Nancy, but living next to them would not cause additional conflict.

      .The partners purchased a round baler on April 14, 1997 and a square baler in June of 1997. However, no farm equipment was purchased by the partnership after Dean disclosed that he wanted to build in the shelter-belt.
      In January of 1998, Dean presented Dale with a letter drafted by Dean’s attorney dated January 6, 1998. It provided in part:
      I would recommend that you give this letter to your brother Dale and see if you cannot work out your difficulties. If not, you should get back to me within the next ten days so we could proceed to attempt to get the dissolution started.
      Dean insisted on building his house in the shelterbelt and Dale refused his consent.

      . Exhibit 29, entitled "If A.J. had Sold All Equipment and Feed — Balance After Taxes— January 1, 1989,” shows that Dean valued the partnership’s use of A.J.’s equipment and feed at $157,617.51.

      . The “capital accounts,” proposed by Uthe, consist of the equipment brought into the partnership by the individual partners. Uthe deducted the value of the use of Dean’s equipment from Dean’s capital account and added that value to Dale’s capital account. Uthe also subtracted the payments Dale made on his combine and baler loans and added that figure to Dale’s capital account. Finally, Uthe deducted the value of Dale’s baler, which was traded-in, from Dean's capital account and added that value to Dale’s capital account.


source: Caselaw Access Project

author: CARTER, Justice.

license: Public Domain

text:
    Chad William CRIPPS, Appellant, v. IOWA DEPARTMENT OF TRANSPORTATION, MOTOR VEHICLE DIVISION, Appellee.
    No. 98-1518.
    Supreme Court of Iowa.
    July 6, 2000.
    Rehearing Denied Sept. 1, 2000.

      James A. Sinclair and Jeffrey M. Weber, West Des Moines, for appellant.
    Thomas J. Miller, Attorney General, David A. Ferree, Special Assistant Attorney General, and Kerry Anderson, Assistant Attorney General, for appellee.
   CARTER, Justice.

Chad William Cripps, a motor vehicle operator whose operator’s license was revoked as a result of a chemical test for breath alcohol concentration, appeals from the district court’s decision upholding that revocation. The appellee is the Iowa Department of Transportation (IDOT), the agency that imposed the revocation. Cripps urges on appeal that, if the margin of error for the chemical testing method involved is subtracted from the test results, the difference is less than the concentration required for a license revocation. After reviewing the record and considering the arguments presented, we conclude that the agency’s finding of the margin of error consistent with the revocation is supported by substantial evidence. Consequently, we affirm the judgment of the district court.

On July 26, 1997, a state trooper came upon Cripps stopped along a roadway in his motor vehicle. When the trooper investigated, he noted the odor of alcohol emanating from the vehicle. No other in-dicia of intoxication was noted by the trooper throughout his initial contact with Cripps. The trooper administered three field sobriety tests. Cripps failed only the horizontal gaze nystagmus test and achieved passing scores on the one-leg stand and the walk-and-turn test. The trooper then administered a preliminary breath test and obtained a test result in excess of .10.

Cripps was then placed under arrest and transported to the Webster City police station. There, the implied-consent procedure was invoked, and Cripps gave a breath sample that was analyzed by an Intoxilyzer 4011A. The test results showed an alcohol concentration of .106. Based on that test result, IDOT revoked Cripps’ operating privileges pursuant to Iowa Code section 321J.12 (1997).

Cripps sought review of the revocation before an administrative law judge (ALJ). Based on evidence produced at a hearing, the ALJ found that, when the margin of error for the Intoxilyzer 4011A was taken into consideration, the breath alcohol concentration was insufficient to warrant revocation of Cripps’ license. That conclusion was reversed by the agency on review of the ALJ’s decision. On judicial review the district court upheld the agency’s final order. Other facts that bear on this controversy will be discussed in connection with our discussion of the legal issues presented.

I. The Jurisdictional Issue.

Initially, we must consider a jurisdictional issue. IDOT questions the timeliness of Cripps’ notice of appeal. That document was not filed within thirty days of the district court’s decision but was filed within thirty days of that court’s ruling on Cripps’ postdecision motion labeled as a motion under rule 179(b) of the Iowa Rules of Civil Procedure. IDOT contends that the motion was in fact not a proper rule 179(b) motion and thus did not extend the time for the filing of a notice of appeal. Our resolution of this issue requires us to consider the nature of a rule 179(b) motion in judicial proceedings seeking a review of administrative action.

Under our rules of civil procedure that were in effect prior to July 1, 1980, a motion under rule 179(b) was not available in a judicial review of an agency decision. Budde v. City Dev. Bd., 276 N.W.2d 846, 851 (Iowa 1979). The adoption of our present Iowa Rule of Civil Procedure 333(c), effective on July 1, 1980, altered that limitation and thereafter motions under rule 179(b) could be filed and considered in proceedings for judicial review of agency action involving a contested case. See Kunau v. Miller, 328 N.W.2d 529, 530 (Iowa 1983) (discussing history of rule 179(b) in agency review). In its normal application to nonjury bench trials in which the court determines both the facts and the law, motions under rule 179(b) may be employed to seek enlargement or change of both the factual and the legal determinations of the court. Bellach v. IMT Ins. Co., 573 N.W.2d 903, 904-05 (Iowa 1998); Peoples Trust & Sav. Bank v. Baird, 346 N.W.2d 1, 2 (Iowa 1984); Suckow v. Boone State Bank & Trust Co., 314 N.W.2d 421, 424 (Iowa 1982). The motion may also seek changes in the judgment consistent with the altered findings or conclusions. Because judicial review of agency findings in contested-case proceedings do not involve new findings made by the district court, rule 179(b) motions in that type of case will necessarily involve issues of law. Osborne v. Iowa Natural Resources Council, 336 N.W.2d 745, 747 (Iowa 1983).

Based on the principles we have discussed, we are convinced that, if the result sought to be achieved by a postdecision motion in a review of an agency contested case is a change in the court’s legal conclusions, its decision, or both its conclusions and decision, such a motion falls under the umbrella of rule 179(b) if the result sought is within the power of the court. Cripps’ motion, labeled as a rule 179(b) motion, sought to have the district court remand the proceeding to the agency for further proceedings. A district court is empowered by Iowa Code section 17A.19(8) to remand a case to the agency for further proceedings. See Continental Tel. Co. v. Colton, 348 N.W.2d 623, 625 (Iowa 1984) (remand to the agency is a permissible disposition of judicial review proceedings in district court). Consequently, we believe that the challenged motion matches the profile of a rule 179(b) motion.

IDOT urges that the purpose of the remand to the agency as requested by Cripps was to present additional evidence at the agency level. Such action, IDOT urges, is precluded by Iowa Code section 17A.19(7) because it was not requested prior to the hearing on judicial review. We disagree for two reasons. First, the fact that a request for an amended decision is lacking in legal merit does not in itself preclude such a request from being considered as a rule 179(b) motion if it requests a category of relief that the court is generally empowered to grant. Second, although section 17A.19(7) requires a request for the taking of additional evidence before the agency to precede the hearing on the petition for judicial review, we are not convinced that the court could not order that relief in the absence of a request prior to that time. Indeed, this court has done that in matters involving judicial review of agency action. See Murillo v. Blackhawk Foundry, 571 N.W.2d 16, 19 (Iowa 1997) (ordering remand to the agency for receipt of additional evidence when that relief had not been timely requested by appellant). For all of the reasons stated, we conclude that Cripps’ notice of appeal was timely filed.

II. The Margin-of-Error Issue.

Cripps’ issue on appeal concerning the margin of error that inheres in the machine or device that was employed in the chemical test of his breath alcohol concentration is based on Iowa Code section 321J.12(6). That statute provides in relevant part:

The results of a chemical test may not be used as the basis for a revocation of a person’s motor vehicle license or nonresident operating privilege if the alcohol concentration indicated by the chemical test minus the established margin of error inherent in the device or method used to conduct the chemical test does not equal an alcohol concentration of .10 or more for violations under section 321 J.2....

Iowa Code § 321J.12(6) (1997).

At the hearing before the administrative law judge, Cripps presented testimony from an expert witness concerning the margin of error for the Intoxilyzer 4011A model as a class. This testimony was based both on the literature of the manufacturer and the witness’s own test results. Based on these two sources of information, the witness concluded that the margin of error for the Intoxilyzer 4011A was .01.

IDOT sought to counter Cripps’ evidence by producing the certified test results issued by the Iowa Department of Criminal Investigation Criminalistics Laboratory as to the accuracy of the particular Intoxilyzer 4011A used by the Webster City Police Department to analyze Cripps’ breath sample. This evidence was offered pursuant to Iowa Code section 691.2, which provides in part:

Any report,, or copy of a report, or the findings of the criminalistics laboratory shall be received in evidence, if determined to be relevant, in any court, preliminary hearing, grand jury proceeding, civil proceeding, administrative hearing, and forfeiture proceeding in the same manner and with the same force and effect as if the employee or technician of the criminalistics laboratory who accomplished the requested analysis, comparison, or identification had testified in person.
A party or the party’s attorney may request that an employee or technician testify in person at a criminal trial, administrative hearing, or forfeiture proceeding on behalf of the state or the adverse agency of the state, by notifying the proper county attorney, or in the case of an administrative proceeding the adverse agency, at least ten days before the date of the criminal trial, administrative hearing, or forfeiture proceeding.

Cripps did not request that the person who tested the accuracy of the Intoxilyzer 4011A used by the Webster City Police Department appear in person and give testimony at the hearing.

In evaluating the evidence presented at the administrative hearing, the ALJ concluded:

It is the opinion of the administrative law judge that the statute refers to the margin of error for the entire class of testing devices and not to the margin of error for a specific testing device.

He further concluded:

The administrative law judge views the margin of error of a breath testing device to be the range within which all results would fall if the same breath specimen were tested many times.

Applying these conclusions to the testimony of Cripps’ expert witness concerning the range of error for the Intoxflyzer 4011A as a class, the ALJ determined the applicable margin of error to be .01. That margin of error if subtracted from Cripps’ test result of .106 produces a concentration less than .10. Based on that calculation, the ALJ determined that Cripps’ license could not be revoked under section 321J.12(6).

On review of the ALJ’s decision, the agency concluded that the margin of error to be applied under section 321 J. 12(6) is that which has been certified by the crimi-nalistics laboratory for the particular device used in the chemical-testing process. In Cripps’ case, the margin of error that had been certified by the criminalistics laboratory for the device at the Webster City Police Department was .004 (either way on the reading) or five percent (of the reading), whichever is greater. Adjusting Cripps’ .106 test result based on that margin of error does not produce a concentration below .10. Based on these conclusions, the agency reversed the decision of the ALJ and upheld the revocation of Cripps’ license.

In challenging the final agency decision, Cripps makes three arguments concerning the margin of error: (1) that it should be based on the range of error detected among this model of testing device as a generic class, (2) that it must be derived from testing the same breath specimen many times, and (3) that in the present case there was an internal contradiction in the certification of the criminalistics laboratory that distorted its determination of the margin of error for this particular Intoxilyzer 4011A. We consider each of these claims.

A. May the margin of error be computed with respect to each particular device used in a chemical testing? It appears from the record that each In-toxilyzer 4011A device used in this state is certified annually. This is required by Iowa Administrative Code rule 661— 7.2(1). As part of the certification process, the machine is examined to determine that it is functioning properly at a particular calibration, and a margin of error is established for that particular testing device when used at that calibration. The record in the present case is silent as to the method that was employed by the criminalistics laboratory to establish the margin of error for this particular Intoxilyzer 4011 A.

Cripps urges that the term “margin of error inherent in the device or method used,” as contained in section 321 J. 12(6), has reference to the range of error discovered among a category of testing devices as a class. We do not view this language as commanding that interpretation. In interpreting statutes, courts must seek a reasonable interpretation that will best effectuate the purpose of the legislation. State v. Sullins, 509 N.W.2d 483, 485 (Iowa 1993); Harden v. State, 434 N.W.2d 881, 884 (Iowa 1989). In the administration of this statute, what is sought to be obtained is a margin of error that would be inherent in the testing of the particular subject’s breath. There appeal’s to be no logical basis for assuming that a margin of error obtained by charting the deviation from a known sample among various In-toxilyzer 4011A devices would be more useful for this purpose than establishing the deviation with respect to the particular device with which a subject is tested. We conclude that IDOT’s reliance on the latter method of establishing the margin of error is not inconsistent with the purpose of the statute.

B. Whether the margin of error must be obtained by testing the same sample of breath many times. Cripps urges that the ALJ’s conclusion that the margin of error is the divergence of results obtained from the testing of the same sample of breath several times was the standard that should have been applied in the present case. He urges that the agency departed from that standard in basing his revocation on the criminalistics laboratory’s certification. The method to be employed in establishing the margin of error is not specified in either the statute or the applicable administrative regulations. There is no evidence in the record with respect to the method that the criminalis-tics laboratory employed in fixing the margin of error for the Intoxilyzer 4011A used in the present case. We are convinced that Cripps may not establish that an improper method of testing was employed when he has presented no evidence of what that method was.

C. Was there an inherent contradiction in the criminalistics laboratory certification? Finally, we consider Cripps’ claim that there is an inherent contradiction in the criminalistics laboratory certification of the margin of error for the Intoxilyzer 4011A used by the Webster City Police Department. He urges that this contradiction inheres in the portion of the certification, which states:

The calibration filter Q-102232 will read 0.214 ± 0.010 when used with Intoxilyzer 4011A, serial number 27-102232.

Cripps urges that the margin of error for the testing accuracy of the machine must be at least as great as the range of calibration. There is nothing in the record from which we can verify that assertion. All that appears in this regard is that this particular Intoxilyzer 4011A device was to be used with a calibration filter programmed to read 0.214 plus or minus 0.01. The certification of the criminalistics laboratory attests that, if that calibration reads out on the machine, the Intoxilyzer 4011A will test accurately within a .004 or five percent margin of error. We perceive no facial inconsistency in that assertion. In the present case, the officer administering the chemical test testified that the calibration reading was within the range specified in the criminalistics laboratory’s certification of accuracy.

We have considered all issues presented and conclude that the final agency decision was supported by substantial evidence. The judgment of the district court is affirmed.

AFFIRMED.

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


author: LAVORATO, Justice.

text:
    STATE of Iowa, Appellee, v. Dennis Allen WOODY, Appellant.
    No. 99-0301.
    Supreme Court of Iowa.
    July 6, 2000.

      Maria Ruhtenberg of Ruhtenberg Law Office, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Steven Johnson, County Attorney, and James W. Cleverley, Jr., Assistant County Attorney, for appellee.
   LAVORATO, Justice.

Dennis Allen Woody appeals from his sentence as an habitual offender. He contends his trial counsel was ineffective because counsel failed to object to the use of the habitual-offender-sentencing statute. We vacate the sentence and remand for resentencing.

On July 10, 1998, the State filed a trial information, charging Woody with robbery in the first degree, a class B felony that carries a twenty-five-year prison term. See Iowa Code §§ 711.1, .2, 902.9(1) (1995). The offense allegedly occurred on September 16, 1995. Later, the State amended the trial information by adding another count, alleging that Woody was an habitual offender. Woody and the State thereafter entered into a plea agreement whereby the State agreed to drop the original charge to second-degree robbery in return for his admitting to being an habitual offender. (Second-degree robbery is a class C felony and carries a ten-year prison term. See Iowa Code §§ 711.3, 902.9(3). The habitual offender enhancement provision carries a fifteen-year prison term, with a requirement that the defendant serve a minimum of three years. See Iowa Code §§ 902.8, 902.9(2).)

Woody pled guilty to the second-degree robbery charge and admitted that he had been convicted of a felony on two previous occasions. The district court sentenced him to an indeterminate term of fifteen years under Iowa Code sections 902.8 and 902.9(2).

On appeal, Woody contends the imposition of the habitual-offender sentence is illegal and that his trial counsel was ineffective for not objecting to it. He asks that we vacate the sentence and remand for sentencing on the second-degree robbery charge.

The State concedes that an enhanced sentence under Iowa Code sections 902.8 and 902.9(2) was not appropriate. The State, however, disagrees on what the appropriate remedy should be. The State believes we should vacate the sentence and allow Woody to withdraw his guilty plea. This remedy, the State points out, would put both parties in the positions they were in before Woody entered his plea. The State argues that it should then be allowed to reinstate the original charge because it was reduced in contemplation of Woody’s admission to being an habitual offender. In the alternative, the State suggests we preserve Woody’s ineffeetive-assistance-of-counsel claim for a possible postconviction relief action.

For reasons that follow, we agree with the remedy that Woody proposes.

When the State alleges that a defendant is an habitual offender, the State is not charging a separate offense. State v. Brady, 442 N.W.2d 57, 58 (Iowa 1989). This is because habitual-offender statutes do not charge a separate offense; they only provide for enhanced punishment on the current offense. Id. The accused therefore does not enter a plea of guilty to an habitual offender “charge.” Id. Rather, the accused merely admits prior convictions for habitual offender purposes. Id.

What we have here, therefore, is an illegal sentence if the habitual-offender statutes do not apply. An illegal sentence is one that is not permitted by statute. State v. Hess, 533 N.W.2d 525, 527 (Iowa 1995). An illegal sentence is void and “not subject to the usual concepts of waiver, whether from a failure to seek review or other omissions of error preservation.” State v. Ohnmacht, 342 N.W.2d 838, 842, 843 (Iowa 1983). Because an illegal sentence is void, it can be corrected at any time. See Iowa R.Crim. P. 23(5)(a) (“The court may correct an illegal sentence at any time.”). We therefore need not resort to an analysis of Woody’s ineffective-assistance-of-council claim to reach the issue but may proceed directly to the merits.

Iowa Code section 902.8 defines an habitual offender as

any person convicted of a class “C” or a class “D” felony, who has twice before been convicted of any felony in a court of this or any other state, or of the United States. An offense is a felony if, by the law under which the person is convicted, it is so classified at the time of the person’s conviction. A person sentenced as an habitual offender shall not be eligible for parole until the person has served the minimum sentence of confinement of three years.

Iowa Code § 902.8. Iowa Code section 902.9(2) provides that an habitual offender shall be confined for no more than fifteen years.

As both parties point out, section 902.8 is a recidivist statute designed “to punish violators who have not responded to the restraining influence of conviction and punishment.” Hajek v. Iowa State Bd. of Parole, 414 N.W.2d 122, 123 (Iowa 1987). For this reason, such statutes apply only when the previous convictions precede the commission of the current offense. State v. Hollins, 310 N.W.2d 216, 217-18 (Iowa 1981) (interpreting Iowa Code section 902.8); State v. Conley, 222 N.W.2d 501, 503 (Iowa 1974) (holding under predecessor statute that the first conviction and imposition of sentence must precede the second offense, and that both of the prior convictions and impositions of sentences must precede the third conviction).

The proper sequence does not exist here. The State’s allegation of habitual offender was based on convictions that occurred on February 9, 1981, and July 8, 1996. The second of those convictions occurred after September 16, 1995 — the date of the offense at issue here. The enhanced sentence was clearly not appropriate under sections 902.8 and 902.9(2) and is therefore void.

Neither party may rely on a plea agreement to uphold an illegal sentence. See Ohnmacht, 342 N.W.2d at 843; State v. Howell, 290 N.W.2d 355, 357-58 (Iowa 1980). If neither party may rely on the plea agreement, what remedy is appropriate here? Do we allow the State to reinstate the original charge or do we remand for sentencing on the reduced charge?

In State v. Hack, we faced a seemingly analogous situation. There we said the State could reinstate the charge because there was no factual basis for the plea of guilty to the offense charged. 545 N.W.2d 262, 263 (Iowa 1996). We allowed the reinstatement because the reduced charge was made in contemplation of a valid plea. Id.

Here, Woody did not plead to an habitual offender status because he could not. Rather, he pled guilty to robbery in the second degree and admitted the previous convictions. The plea was valid; only the sentence was illegal. In these circumstances, we think it is therefore appropriate to vacate the illegal sentence and remand for a correct sentence for robbery in the second degree.

There is a second good reason for this result. The State added the habitual-offender count, apparently to convince Woody to plead guilty. While we acknowledge the State had prosecutorial discretion to add the habitual-offender count, we think the State should bear the consequences of a decision that was based on the State’s wrong assumption that the habitual-offender statute applied. In this case the consequences are that the State is “stuck” with the second-degree robbery conviction and may not reinstate the first-degree robbery charge.

SENTENCE VACATED; REMANDED FOR RESENTENCING.

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


text:
    STATE of Iowa, Appellee, v. Roger BARNHOLTZ, Barnholtz Automotive Group, Inc., and Bonnie Barnholtz, Appellants.
    No. 98-1115.
    Supreme Court of Iowa.
    July 6, 2000.

      Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellants.
    Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Linda Hall, Assistant County Attorney, for appellee.
   LAVORATO, Justice.

In this appeal by three defendants, the principal issue is whether a damage disclosure statement for a 1992 Mazda automobile and an application for certificate of title for a 1976 Buick automobile are public documents within the meaning of Iowa Code section 718.5 (1995). Section 718.5 makes it a crime for a person, having no right or authority to do so, to make a public document. A jury convicted (1) the defendant, Roger Barnholtz, of violating this statute in connection with his execution of the damage disclosure statement; and (2) the defendants, Bonnie Barnholtz and Barnholtz Automotive Group, Inc., in connection with the execution of the application for certificate of title. We hold such documents under the circumstances of this case are not public documents and therefore reverse the defendants’ convictions.

The jury also convicted Bonnie of one count of forgery and Barnholtz Automotive of two counts of theft in the second degree and four counts of forgery. We affirm Bonnie’s forgery conviction. We also affirm Barnholtz Automotive’s convictions of one count of theft and one count of forgery but reverse as to the remaining counts.

On September 8, 1997, the State charged Barnholtz Automotive with the following offenses:

(1) one count of second-degree theft (count I), in violation of Iowa Code sections 714.1(3) and 714.2(2);
(2) one count of second-degree theft (count II), in violation of Iowa Code sections 714.1(2) and 714.2(2);
(3) one count of falsifying a public document (count IV), in violation of Iowa Code section 718.5;
(4) four counts of forgery (counts V, VI, VII, and VIII), in violation of Iowa Code section 715A.2(l)(b); and
(5) one count of fraudulent practice in the third degree (count IX), in violation of Iowa Code sections 321.49, 321.97, 714.8(10), and 714.11.

In the same trial information, the State charged Roger with one count of falsifying a public document (count III), in violation of Iowa Code section 718.5 and charged Bonnie with one count of falsifying a public document (count IV), in violation of Iowa Code section 718.5 and two counts of forgery (counts VI 'and VIII), in violation of Iowa Code section 715A.2. Roger is the president and Bonnie is the secretary/treasurer of Barnholtz Automotive.

Before submitting the case to the jury, the district court sustained Barnholtz Automotive’s motion for judgment of acquittal as to count IX — fraudulent practice in the third degree — and overruled motions for judgment of acquittal on the remaining counts as to all defendants. The jury returned guilty verdicts on all the remaining counts against Barnholtz Automotive.

The jury convicted Roger of falsifying a public document (count III) and convicted Bonnie of the same offense (count IV) and of one count of forgery (count VIII).

The district court fined Barnholtz Automotive $5000 for each conviction. See Iowa Code §§ 902.9, 903.1. The district court sentenced Roger to an indeterminate term of imprisonment not to exceed five years for falsifying a public document. See Iowa Code §§ 718.5, 902.9(4).

The court sentenced Bonnie to an indeterminate term of imprisonment not to exceed five years for falsifying a public document and an indeterminate term of imprisonment not to exceed two years for forgery. See Iowa Code §§ 718.5, 715A.2(2)(b), 902.9(4), 903.1(2). The court ran her sentences concurrently and placed her on probation for two to five years.

I. Falsification of Public Documents.

Iowa Code section 718.5 provides:

A person who, having no right or authority to do so, makes or alters any public document, or any instrument which purports to be a public document, or who possesses a seal or any counterfeit seal of the state or of any of its subdivisions, or of any officer, employee, or agency of the state or of any of its subdivisions, commits a class “D” felony.

(Emphasis added.)

The State charged and the jury convicted Roger, Bonnie, and Barnholtz Automotive of making a public document, without right or authority to do so. In Roger’s case, the alleged public document was a damage disclosure statement for a 1992 Mazda automobile (count III). The signature of an individual purporting to sign on behalf of the seller and buyer was allegedly forged. In the case of Bonnie and Barnholtz Automotive, the alleged public document was an application for a certificate of title to a 1976 Buick automobile (count IV) on which the applicant’s signature was allegedly forged. The narrow issue we must decide is whether the damage disclosure statement and the application for a certifícate of title are public documents for purposes of section 718.5.

In State v. Ortega, 418 N.W.2d 57 (Iowa 1988), we first defined what a public document is for purposes of section 718.5. Before doing so, we set out these familiar rules of statutory construction that would govern our definition:

The term “public document” is not defined in section 718.5.... Our task, therefore, is to place upon the statute a reasonable construction consistent with the evident legislative intent. Because the statute is penal in nature, it must be construed strictly against the State, with any doubts about its meaning resolved in favor of the accused. As we attempt to discern what activity the legislature intended to proscribe by section 718.5, we must follow the express terms of the statute and not what the legislature might or should have said.

Ortega, 418 N.W.2d at 58-59 (citations omitted).

The State had charged Ortega with making false public documents in violation of section 718.5, to wit, ten blank Oregon driver’s license forms. Id. at 58. We noted that the statute prohibits the unauthorized creation of public documents. Id. at 59. We therefore recognized the ultimate question to be this: “At what point does the creation become a public document?” Id.

“[T]he term public document,” we said, “is synonymous with ‘public record,’ ” which is a

“writing ... [that] an officer is required by law to keep or which is intended to serve as a memorial and evidence of something written, said, or done by the officer or public agency.”

Id. (quoting Linder v. Eckard, 261 Iowa 216, 220, 152 N.W.2d 833, 836 (1967)).

We pointed out that “[c]ommentators have uniformly observed that legislation prohibiting the falsification of such documents is aimed at records which evidence the discharge of a duty imposed by law or which serve as a memorial of something already written, said, or done.” Id. (emphasis added). Stated in a different fashion, we observed that

“[t]he crime of falsification of public records refers to those writings which evidence the completed acts of public servants, such as the minutes of courts, public boards, and commissions, or those documents which under the law must be recorded by a public officer....”

Id. (quoting 66 Am.Jur.2d Records and Recording Laws § 11, at 348 (1973)).

Implicit in these definitions is that, at common law, action by a public officer is necessary to make a record or document a “public record.” The rule is often stated as follows:

A public record, strictly speaking, is one made by a public officer in pursuance of a duty, the immediate purpose of which is to disseminate information to the public or to serve as a memorial of official transactions for public reference.

Stenstrom v. Harnett, 131 Misc. 75, 76-77, 226 N.Y.S. 338, 341 (Sup.Ct. 1927), aff'd per curiam, 249 N.Y. 606, 164 N.E. 602 (1928); accord State v. Brantley, 201 Or. 637, 271 P.2d 668, 672 (1954); State ex rel. Romsa v. Grace, 43 Wyo. 454, 5 P.2d 301, 303 (1931).

Therefore, at common law, not every document on file with a public officer or every memorandum made by a public officer is a public document. People v. Olson, 232 Cal.App.2d 480, 486, 42 Cal.Rptr. 760, 764 (1965); Linder, 261 Iowa at 219, 152 N.W.2d at 835; Stenstrom, 131 Misc. at 77, 226 N.Y.S. at 342; Romsa, 5 P.2d at 303. For example, at common law,

[r]eports of private individuals to government officials, even pursuant to statute, correspondence of such officials in matters relating to private affairs of a citizen, although in connection with public business, or memoranda of public officers for their own convenience, are not public documents or records unless made so by statute.

Stenstrom, 131 Misc. at 77, 226 N.Y.S. at 342. In the absence of a statute declaring records to be strictly public records, the nature and purpose of the record are guides in determining the class to which the records belong. Id.; see also Village of Evanston v. Gunn, 99 U.S. 660, 666-67, 25 L.Ed. 306, 307 (1878); Linder, 261 Iowa at 219, 152 N.W.2d at 835.

The holding in Linder makes clear that there must be some action by a public official to make a document a public record. The question in Linder was whether written appraisal reports in the custody of a city clerk were public records. This court said:

What, then, about the written appraisals which are the subject of this controversy? They were not prepared by a public officer nor by anyone under his control. Although made at the request of the city council, they are merely opinions of value which have no binding effect upon either the city or the property owners. They have not been acted on in any way at this time. No plan for urban renewal has been adopted. No eminent domain proceedings have been instituted.

Linder, 261 Iowa at 219, 152 N.W.2d at 835.

No doubt when the damage disclosure statement and the application for certificate of title were filed, they became public documents. This is because statutory law requires some public official to record them. In the case of the damage disclosure document, the Iowa Department of Transportation has that duty. See Iowa Code § 321.69(4) (providing that “[t]he department shall retain each damage disclosure statement received and copies shall be available to the public and the attorney general upon request”). In the case of the application for certificate of title, the county treasurer has that duty. See Iowa Code § 321.31(2) (providing that “[e]ach county treasurer’s office shall maintain a county records system for vehicle registration and certificate of title documents. The records system shall consist of information from the certificate of title.... ”).

However, until both documents were filed, they were not public records. Until then, the public had no interest in the two documents. Because Roger’s, Bonnie’s, and Barnholtz Automotive’s alleged actions with respect to those documents occurred before the documents were filed, the reach of section 718.5 did not encompass those actions. See People v. Garfield, 40 Cal.3d 192, 219 Cal.Rptr. 196, 707 P.2d 258, 260-61 (1985) (holding that falsification of a will before it was filed would not constitute the falsification of a public record within meaning of a statute that provided that no limitations period existed for prosecutions for the falsification of public records because a will is not a public document before it is filed for probate); People v. Trujillo, 189 Colo. 23, 536 P.2d 46, 47 (1975) (holding that an application for admission to a state college was not a public record within meaning of a statute that made it a crime to knowingly make a false entry in any public record; statute applied only to records after they were created, received, or used by a public office); Brantley, 271 P.2d at 672-73 (holding that a “public record” within statute proscribing the forging of public records did not include a certifícate of nomination not yet in the hands of the county clerk and indictment charging the uttering of forged signatures on a nomination petition did not charge a crime); cf. Case v. National Life & Accident Ins. Co., 66 N.E.2d 270, 272 (Ohio Ct.App.1944) (holding that a “certifícate of death when filed in the office of the Secretary of State becomes a public record”).

The statutory definition of “public records” in Iowa’s open records law is further support for the conclusion we reach. Iowa Code section 22.1(3) pertinently defines public records to include “all records, documents ... of or belonging to this state or any county.... ” In City of Dubuque v. Dubuque Racing Association, we held that

[b]y statutory definition, a public record is a record or document of or belonging to the state or local government. A document of the government is a document that was produced or originated from the government. Documents belonging to government would include those documents that originate from other sources but are held by public officers in their official capacity.

420 N.W.2d 450, 453 (Iowa 1988).

The Colorado Supreme Court interpreted a falsification-of-public records statute with the words records of or belonging to any public office in People v. Trujillo, 185 Colo. 14, 521 P.2d 769 (1974). In that case the defendant submitted a false employment application for a government position. Concluding that the statute did not cover the application, the court reasoned that the statute was designed to inhibit the falsification of records that were prepared by and in the custody of a public agency. Trujillo, 521 P.2d at 770. Significantly, the court said:

Summarizing, then, we hold that a violation of [the statute] occurs only where a person falsifies or otherwise corrupts a record which is in, or is required by law to be in, the custody or control of a public agency at the time of falsification. The statute does not apply to a situation like that present here, where, when falsified, the application for the position sought did not belong to any public office within the state.

Id. at 770-71 (emphasis added). We think the same reasoning applies to the definition of public records in Iowa Code section 22.1(3).

As mentioned, Iowa Code section 718.5 makes it a crime for a person to make or alter a public document when that person has no right or authority to do so. We point out that the statute applies to unauthorized documents, not false documents. Therefore, a person who is authorized to make a public document but places false information in the document may have committed a crime, but not necessarily under section 718.5. See, e.g., Iowa Code § 321.97 (a person who knowingly makes a false statement in an application for a certificate of title is guilty of a fraudulent practice).

II. Corporate Culpability.

The jury also found Barnholtz Automotive guilty of two counts of theft in the second degree (counts I and II) and four counts of forgery (counts V, VI, VII, and VIII). Barnholtz Automotive contends there was insufficient evidence to convict it of counts I, V, and VI.

Barnholtz Automotive further contends that as a matter of law it could not be convicted of counts II, VII, and VIII. It reasons that specific intent is an element of those offenses, and a corporation cannot legally be convicted of a crime with such an element.

Iowa Code section 703.5 pertinently provides:

A public or private corporation ... shall have the same level of culpability as an individual committing the crime when any of the following is true:
2. The conduct or act constituting the offense is committed by an agent, officer, director, or employee of the accused while acting within the scope of the authority of the agent, officer, director, or employee and in behalf of the accused and when said act or conduct is authorized, requested, or tolerated by the board of directors or by a high managerial agent.
“High managerial agent” means an officer of the corporation ... or other agent in a position of comparable authority with respect to the formulation of policy or the supervision in a managerial capacity of subordinate employees.

A. Insufficiency of the evidence.

1. Count I (theft in the second degree). The basis for this offense was that Barnholtz Automotive had received, by deception, cash and a trade-in from a customer. The alleged deception was the concealment of the true mileage of a Plymouth automobile that the customer had purchased.

Barnholtz Automotive argues that the salesman — Jeff Jones — with whom the customer dealt made the representation of low mileage. Barnholtz Automotive further argues that (1) there was no showing that Jeff Jones was a high managerial agent, and (2) there was no proof that his actions were “authorized, requested, or tolerated by the board of directors or by a high managerial agent.” We agree with both contentions and conclude that the evidence was insufficient to sustain a conviction of this offense.

2. Count V (forgery). The State’s theory for count V was that Barn-holtz Automotive executed a title to a 1984 Ford Escort, purporting it to be the act of Daniel Grey, who did not authorize that act. A handwriting expert for the State could not identify the author of “Daniel Grey” on the certificate of title. Nor was there any proof that the board of directors or a high managerial agent had authorized, requested, or tolerated the forgery. We agree the evidence was insufficient to sustain a conviction of this offense.

3. Count VI (forgery). In this count, the State charged both Barnholtz Automotive and Bonnie with forgery. The State’s theory for count VI was that Barn-holtz Automotive, through Bonnie, had forged the signature of “Randy Gray” to the title assignment for a 1985 Ford LTD. The State’s handwriting expert testified that in his opinion the signature of “Randy Gray” was probably made by Bonnie Barn-holtz. The expert admitted that “probable” means room for doubt because “irreconcilable differences are present.” Given this weak testimony, it is not surprising that the jury found Bonnie not guilty. And given this verdict, there was therefore no evidence that a high managerial agent of the corporation had authorized, requested, or tolerated the forgery. Additionally, there was no evidence that the board of directors of the corporation had authorized, requested, or tolerated the forgery. We agree the evidence was insufficient to sustain Barnholtz Automotive’s conviction of this offense.

B. Specific intent. Count II alleged that Barnholtz Automotive had committed theft in the second degree for misappropriation of property of another in its control, more specifically overcharges for license and title fees. Count VII alleged that the corporation had committed forgery of a title certificate to a 1985 Ford LTD. Count VIII alleged that the corporation had committed forgery of a title certificate to a 1985 Plymouth van.

Barnholtz Automotive contends that, because the three counts were submitted to the jury as specific-intent crimes, the jury — as a matter of law — could not convict it of these offenses. The corporation relies on Stewart v. Waterloo Turn Verein, in which this court held “that a corporation cannot be charged criminally with a crime involving malice, or the intention of the offense.” 71 Iowa 226, 230, 32 N.W. 275, 277 (1887).

The short answer to this contention is that Iowa Code section 703.5 has changed the law. By statute, a corporation now has — under certain circumstances — the same level of culpability as an individual committing the crime. The statute makes no distinction between general intent and specific intent crimes. We therefore reject Barnholtz Automotive’s argument.

III. Disposition.

In sum, we conclude that the damage disclosure statement and the application for certifícate of title were not public documents at the time the defendants allegedly took action with respect to them. Because Iowa Code section 718.5 does not cover those actions, we reverse the convictions of all three defendants as to counts III and IV.

Because we conclude the evidence was insufficient to convict Barnholtz Automotive on counts I, V, and VI, we reverse its convictions on those counts. We reject Barnholtz Automotive’s argument that a corporation cannot be convicted of offenses having a specific intent element. Accordingly, we affirm its convictions on counts II, VII, and VIII.

We note that Bonnie raises no issue regarding her conviction for forgery (count VIII). We therefore affirm her conviction on that count.

AFFIRMED IN PART; REVERSED IN PART.

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