text:
    Raymond D. JOHNSON and Carol A. Johnson, Appellants, v. Anthony Joe KASTER and Janice Marie Kaster, Appellees.
    No. 99-1689.
    Supreme Court of Iowa.
    Dec. 19, 2001.

      Sidney F. Drake, Centerville, for appellants.
    Robert Kohorst of Kohorst Law Firm, Harlan, for appellees.
   STREIT, Justice.

Although movable, a mobile home can sink deep roots. This case involves a parcel of land that has been used for over thirty years by people who do not have title to the property. Anthony and Janice Kaster, and their predecessors in title, have positioned a mobile home partially on their neighbors’ property for over thirty years. Raymond and Carol Johnson currently own the disputed property and challenge Rasters’ right to infringe in this way. Johnsons claim the district court erred when it found Rasters created an easement in the disputed property. They further challenge the dismissal of their petition to recover real estate. Finally, Johnsons challenge both the nature and extent of the easement the district court granted to Rasters. Because we find Rasters established a prescriptive easement and Johnsons may not now challenge the court’s authority to award an easement limited in duration, we affirm.

I. Facts

This dispute involves two parcels of land located adjacent to one another in the town of Moravia, Iowa. The first parcel, Lot 25, and the mobile home are owned by Rasters and were acquired by them in 1994 from Everett Long. The mobile home is also, in part, positioned on a bordering parcel of land owned by Johnsons. John-sons acquired this property from CMC Heartland Partners in 1998 by quit claim deed. The disputed property is the area of Johnsons’ property onto which Rasters’ mobile home extends (“disputed property”). Originally, the disputed property was part of the railroad right of way acquired by Chicago, Milwaukee & St. Paul Railway Company. The disputed area occupied by the mobile home and yard measures sixty by seventy-five feet.

Johnsons filed a petition under Iowa Code chapter 646 (1999), asking that they be declared the owners of the disputed property. They further requested Rasters be ousted from the property. Rasters answered this petition raising affirmative defenses of adverse possession and easement by prescription.

At trial, Joe Raster testified that years ago Rex Angel, a predecessor in title to the Raster property, told him he owned the disputed property. Over Johnsons’ hearsay objection, the trial court allowed the testimony under Iowa Rule of Evidence 803(28).

After the trial, the district court dismissed Johnsons’ petition and awarded Rasters an easement over the disputed property. The court found there had been a mobile home on the property for at least twenty years prior to Johnsons’ acquisition of the land. The court found Rasters had a claim of right to the property. Rather than finding the easement runs with the land, the court permitted Rasters to continue placement of the mobile home, garage, outbuildings and appurtenances as long as Rasters continued to use the mobile home as their primary residence.

Johnsons appeal, asserting the district court erred in: (1) admitting the hearsay testimony of Angel; (2) finding Rasters established a prescriptive easement; (3) dismissing Johnsons’ petition; (4) granting Rasters a “personal” easement; and (5) incorrectly defining the nature and extent of the easement.

II. Scope of Review

The parties have not agreed on the scope of our review. Johnsons contend the scope of review is at law as to their claim the trial court erred in dismissing the petition to recover real estate. As to their other claims, Johnsons believe the appropriate scope of review is in equity. Rasters argue the scope of review is at law.

Generally, we will hear a case on appeal in the same manner in which it was tried in the district court. Davis-Eisenhart Mktg. Co., v. Baysden, 539 N.W.2d 140, 142 (Iowa 1995). The appropriate scope of review for the challenge to the trial court’s dismissal of the petition to recover real estate is at law. Iowa Code § 646.1 (1999). The trial court’s findings carry the force of a special verdict and are binding on us if supported by substantial evidence. Meyers v. Delaney, 529 N.W.2d 288, 289-90 (Iowa 1995); Iowa R.App. P. 14(f)(1). If the findings are ambiguous, they will be construed to uphold, not defeat, the judgment. Byers v. Contemporary Indus. Midwest, Inc., 419 N.W.2d 396, 397 (Iowa 1988). All of the other claims will be reviewed in equity and as such our review is de novo. Iowa R.App. P. 4. We have the responsibility to examine the facts as well as the law and decide anew the issues properly preserved. Fencl v. City of Harpers Ferry, 620 N.W.2d 808, 811 (Iowa 2000) (citing Rouse v. Union Township, 530 N.W.2d 714, 716 (Iowa 1995)). We give weight to the district court’s findings of fact, but we are not bound by these findings. Perkins v. Madison County Livestock & Fair Ass’n, 613 N.W.2d 264, 267 (Iowa 2000). “[W]e are especially deferential to the district court’s assessment of witness credibility.” Id.

III. Merits

In response to Johnsons’ petition, Rast-ers claimed affirmative defenses based on adverse possession and easement by prescription. The trial court determined Rasters, through their predecessors, maintained possession of the disputed property for over ten years and under a claim of right. The district court granted Rasters an easement in the disputed property not to run with the land. Johnsons claim there was insufficient evidence to establish an easement of any kind in the Johnson property. We must determine what right, if any, Rasters have to use and possess the disputed property.

A. Nature of Rasters’ Interest in the Disputed Property

Easements may be created in one of three ways: (1) express written grant; (2) prescription; or (3) implication. Wymer v. Dagnillo, 162 N.W.2d 514, 516 (Iowa 1968). Rasters have not claimed they have an easement by express written grant or by implication. The issue is whether Kasters have an easement by prescription.

Under Iowa law, an easement by prescription 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. Iowa Code § 564.1; Collins Trust v. Allamakee County Bd. of Supervisors, 599 N.W.2d 460, 463 (Iowa 1999). It is based on the principle of estoppel and is similar to the concept of adverse possession. Collins Trust, 599 N.W.2d at 463 (citing Webb v. Arterburn, 246 Iowa 363, 378, 67 N.W.2d 504, 513 (1954)). We consider principles of adverse possession when determining whether an easement by prescription has been created. Collins Trust, 599 N.W.2d at 464 (citing Laman v. State, 552 N.W.2d 158, 162 (Iowa 1996)). However, the concepts of adverse possession and easement by prescription are not one and the same. Rather, easement by prescription concerns the use of property and adverse possession determines acquisition of title to property by possession. Collins Trust, 599 N.W.2d at 464. For Kasters to claim a right to continued use of the disputed property, they must show something more than use for the statutory period. They must also show they claimed an easement as of right, and this must be established by evidence distinct from and independent of their use. See id.; Iowa Code § 564.1. Finally, Kasters must show Johnsons and their predecessors in title had express notice of their claim of right to use the disputed property. See Webb, 246 Iowa at 384, 67 N.W.2d at 516. We first examine whether Rasters have a claim of right to the disputed property.

1. Claim of Right

Evidence tending to show hostility and claim of right to satisfy the requirements of a prescriptive easement is of a similar nature. See Collins Trust, 599 N.W.2d at 464 (citing Burgess v. Leverett & Assoc., 252 Iowa 31, 36, 105 N.W.2d 703, 706 (I960)) (conduct which shows intention to hold title exclusive of others shows hostile possession). Hostility of possession does not imply ill will, but only an assertion of ownership by declarations or acts showing a claim of exclusive right to the land. 3 Am.Jur.2d Adverse Possession § 50, at 143 (1986). However, mere use of land does not, by lapse of time, ripen into an easement. Schaller v. State, 537 N.W.2d 738, 742 (Iowa 1995). A party claiming an easement by prescription must prove, independent of use, the easement was claimed as a matter of right. Iowa Code § 564.1; Collins Trust, 599 N.W.2d at 464 (citing Simonsen v. Todd, 261 Iowa 485, 489, 154 N.W.2d 780, 732 (1967)).

Though mere use does not constitute hostility or claim of right, we have held certain acts, including maintaining and improving land, can support a claim of ownership and hostility to the true owner. See, e.g., Barnes v. Robertson, 156 Iowa 730, 733-34, 137 N.W. 1018, 1019 (1912) (where a road was legally established, used, worked, and improved, the public was acting under a claim of right); Lynch v. Lynch, 239 Iowa 1245, 1255, 34 N.W.2d 485, 490 (1948) (claim of right found where party set out trees, erected a house and buildings, enclosed premises by fence, cultivated the land, and treated land precisely as an owner).

Ultimately, we must determine on a case-by-case basis whether there is evidence to support the requirements of a prescriptive easement. Collins Trust, 599 N.W.2d at 464. We now turn to the facts before us to determine whether Rasters have a claim of right to the disputed property. From as early as 1966 to the present, Rasters or their predecessors in title to Lot 25 had a mobile home on the property. In 1994, when Rasters purchased Lot 25, their lot had a nine by forty foot mobile home positioned mostly on Lot 25. However, some of the mobile home extended onto the disputed property owned by Johnsons. Rasters used this mobile home as their primary residence. In 1997, Rast-ers replaced the original mobile home with a sixteen by eighty foot mobile home in approximately the same location. This new mobile home extended approximately forty additional feet onto the disputed property.

Since Rasters moved onto Lot 25 in 1994, they have made many uses of the disputed property. Rasters maintained the original mobile home for three years and later replaced the original mobile home with a new one in 1997. Raster has mowed the disputed property and generally cleaned up the area since they moved in. He has torn out trees and torn down a house on the disputed property. Since Rasters acquired Lot 25, they have used a garage located almost entirely on the disputed property. The garage has since been relocated and now appears to be closer to Lot 25. In general, Rasters have treated the disputed property as any other owner of real estate might do. There is no evidence to suggest Johnsons contributed to the maintenance of the disputed property or used it for their own benefit. See Huebner v. Kuberski, 387 N.W.2d 144, 147 (Iowa Ct.App.1986) (“[a] mixed, shared or scrambled possession is not exclusive and will not ripen into title”). No one, other than Rasters, has maintained any portion of the disputed property. Although not necessary to establish a prescriptive easement, the nature of Rasters’ acts support a claim of exclusive possession of the disputed property.

Johnsons contend Rasters’ use is not exclusive and as such they have failed to satisfy the requirements of a prescriptive easement. Johnsons claim people other than Rasters have been known to park cars on the disputed property. However, unlike adverse possession, continuous, adverse possession for a prescriptive easement does not mean constant use. Similarly, the use need not be exclusive. Rather, a claimant’s possession “need only be of a type of possession which would characterize an owner’s use.” 2 C.J.S. Adverse Possession § 54, at 727 (1972). Furthermore, “mere casual intrusion by others on property occupied by the adverse claimant does not deprive his possession of its exclusive character....” Id. § 56, at 729-30.

Since approximately 1950, when Everett Long acquired Lot 25, until the present time, Rasters and their predecessors in title have been the only people to use and maintain the neighboring disputed property. Prior to Rasters’ possession of Lot 25, Long, and before him Rex Angel, owned the property. Long used the mobile home on Lot 25 as an office. Angel used Lot 25 for residential purposes. Rasters had reason to believe they owned the disputed property because of their prior observations of the use and ownership of Lot 25 by Long and Angel. The trial court found Rasters and their predecessors in title used the disputed property for more than ten years. The court further found their use was continuous in nature and open and obvious to predecessors in title to the Johnson property. In support of this finding, the trial court concluded the Chicago, Milwaukee, St. Paul & Pacific Railway Company was aware of both Long’s and Angel’s use of the disputed property for more than twenty years before Rasters even acquired Lot 25. There is evidence other portions of Johnsons’ property were used by various third parties to store or dump used motor vehicles, dirt, construction vehicles and equipment, a semi-truck, and barrels. There is no evidence Rasters or their predecessors were ever interrupted in their exclusive use of the disputed property. The evidence of actual possession and use of the disputed property by Rasters and their predecessors substantiates their claim of right.

2. Express Notice

Under Iowa law the owner or the grantor is required to have “express notice” of any claim of adverse possession. Iowa Code § 564.1. This requirement exists to help place the true owner of land on notice of the adverse use of the land by another. See 3 Am. Jur. 2d Adverse Possession § 69, at 165-66. This requirement “ensure[s] the landowner knows another’s use of the property is claimed as a right hostile to the landowner’s interest in the land. Otherwise, the landowner may incorrectly assume the other’s use results merely from the landowner’s willingness to accommodate the other’s desire or need to use the land.” Larman, 552 N.W.2d at 162. The notice must be actual or “from known facts of such nature as to impose a duty to make inquiry which would reveal the existence of an easement.” Collins Trust, 599 N.W.2d at 465 (quoting Anderson v. Yearous, 249 N.W.2d 855, 861 (Iowa 1977)); see also Webb, 246 Iowa at 383, 67 N.W.2d at 515 (notice may be express, or any notice or knowledge whatsoever that the appellants or their predecessors in title claimed the easement as a matter of right). “The law imputes to a purchaser such knowledge as he would have acquired by the exercise of ordinary diligence. Thus, where the easement is open and visible, the purchaser of the ser-vient tenement will be charged with notice .... ” 28A C.J.S. Easement § 114, at 297 (1996).

The determination of whether Rasters complied with the express notice requirement of Iowa Code section 564.1 turns on the particular facts of the case. The use and possession of the disputed property by Rasters and their predecessors in title were confined to the same location. Since 1966, a mobile home has been located on the disputed property. Rasters replaced the mobile home on the disputed property before Johnsons’ acquired their real estate. Additionally, there is evidence the owners of the disputed property prior to Johnsons were well aware of the use and possession of the disputed property by Rasters and their predecessors in title. All evidence of maintenance, use, and support of the disputed property stems back to over ten years prior to the time Johnsons acquired title in the disputed property. We have held that the ten-year continuous possession requirement may be established by “tacking” onto the claimant’s possession time by his predecessors in interest. Burgess, 252 Iowa at 35, 105 N.W.2d at 706. When Long owned Lot 25, he also used and maintained the disputed property. Both Long and Angel made use of the disputed property regularly and openly. They both parked their cars on the disputed property and used the mobile home located on it. We conclude the use and possession of the disputed property by Rasters and their predecessors in title has been for more than the requisite ten-year period. The use was open, visible, and sufficient to put a person of ordinary prudence on notice of the fact the disputed property was held exclusively by Rasters or their predecessors in title. See 3 Am. Jur. 2d Adverse Possession § 69, at 165.

Whether it was Chicago, Milwaukee & St. Paul Railway Company, CMC Heartland Partners, or Johnsons, the owners of the disputed property surely had notice of the mobile home located partially on the disputed property. Furthermore, John-sons and their predecessors in title knew the owners of Lot 25 were exclusively using and maintaining the disputed property. We conclude the trial court properly found Rasters established the requirements for an easement by prescription. Because we find the district court’s action in dismissing Johnsons’ petition for recovery of real estate was supported by substantial evidence, we affirm.

IY. Hearsay Objection

Over Johnsons’ objection, the court permitted Mr. Raster to testify to statements made by Angel to Raster. Raster testified that when he was in high school, Angel told Raster he owned the property that later fell into dispute. The trial court admitted this statement as an exception to the hearsay rule concerning declarations of a landowner as to the location of boundaries, made while the declar-ant was the owner and in possession of the land. Iowa R. Evid. 803(23). In pertinent part, this rule states “judgments” concerning personal, family, or general history or boundaries are admissible as an exception to the hearsay rule. Iowa R. Evid. 803(23).

Assuming, without deciding, Angel’s statement is hearsay, it is not admissible under hearsay exception 803(23). The statement as to Angel’s ownership of certain property is not evidence of a judgment and thus the exception is not implicated here. However, the record does not reflect Johnsons’ substantial rights were affected by the admission of the statement. McClure v. Walgreen Co., 613 N.W.2d 225, 235 (Iowa 2000). Although a presumption of prejudice arises when a court receives irrelevant evidence over a proper objection, the presumption is not sufficient to require reversal if the record shows a lack of prejudice. Mercer v. Pittway Corp., 616 N.W.2d 602, 612 (Iowa 2000); Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000); McClure, 613 N.W.2d at 235. The court did not rely, nor do we, on Angel’s statement in determining whether Rasters established an easement in the disputed property. Because the statement made by Angel to Raster did not prejudice Johnson, we conclude there was no reversible error. We affirm.

V. Easement

The trial court found Rasters satisfied the requirements of a prescriptive easement. The court granted Rasters an easement “to maintain the mobile home located on the disputed property ... along with any garage, outbuildings, and other appurtenances.” The court limited the duration of the easement to last only as long as either Joe Raster or Marie Raster uses the mobile home presently on the disputed property as their primary residence and declared that it did “not run with the land.” (Emphasis added.) Johnsons contend the trial court abused its discretion in granting what Johnsons have characterized as a “personal” easement to Rasters because there is no legal authority to grant a limited easement.

The court’s limitation on the duration of the easement, though not strictly sanctioned in the law, works to Johnsons’ advantage. The ruling effectively curtails the use of the disputed property by limiting it to continued residential use by Rast-ers. The court’s ruling allows Johnsons to recover the disputed property when Rast-ers no longer use it as their home. Given the facts established at trial, the court could have determined Rasters established an easement that runs with the land. However, the court limited the scope of the easement. This court’s judgment is not adverse to Johnsons, but inures to their benefit. They may not now complain of this ruling. We affirm.

YI. Extent of the Easement

Johnsons also claim the trial court erred in the nature and extent of the easement. Specifically, Johnsons contend, even if we find Rasters established an easement, the easement granted by the trial court is invalid because it substantially increased the burden on the Johnson property. However, the trial court never ruled on the issue of the expansion of the easement. Johnsons raise this issue for the first time on appeal. When the court fails to resolve an issue, a request to enlarge or amend the findings is necessary to preserve error. Iowa R. Civ. P. 179(b) (1999); Lawrence v. Grinde, 534 N.W.2d 414, 418 (Iowa 1995). The purpose of a rule 179(b) motion is “to advise counsel and the appellate court of the basis of the trial court’s decision in order that counsel may direct his attack upon specific adverse findings or rulings in the event of an appeal.” Ritz v. Wapello County Bd. of Supervisors, 595 N.W.2d 786, 789 (Iowa 1999) (quoting City of Fort Dodge v. Civil Serv. Comm’n, 562 N.W.2d 438, 440 (Iowa Ct.App.1997)). Since Johnsons did not move under Iowa Rule of Civil Procedure 179(b) for an enlargement or modification of the trial court’s conclusions, we find error was not preserved and decline to address the issue on appeal.

AFFIRMED.

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

      . Examination of the facts of this case may lead to the conclusion Rasters established the elements of adverse possession, as opposed to an easement. Though resolution of this case seems to be most appropriate under the doctrine of adverse possession, neither party pursued this theory further than the initial pleadings. The district court made no finding as to whether Rasters established the elements of adverse possession. As such, our review is limited to examining the facts and law properly preserved regarding an easement.

      . Iowa Rule of Civil Procedure 179(b) provides, in part: ''[o]n motion joined with or filed within the time allowed for a motion for new trial, the findings and conclusions may be enlarged or amended and the judgment or decree modified accordingly on a different judgment or decree substituted....”


source: Caselaw Access Project

author: LAVORATO, Chief Justice.

license: Public Domain

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Robert M. SHERMAN, Respondent.
    No. 01-1126.
    Supreme Court of Iowa.
    Dec. 19, 2001.

      Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.
    Robert M. Sherman, pro se, Ft. Dodge.
   LAVORATO, Chief Justice.

The Iowa Supreme Court Board of Professional Ethics and Conduct filed a complaint with our Grievance Commission against respondent, Robert M. Sherman. The complaint alleged that Sherman had violated several disciplinary rules centering on his alleged neglect of legal matters entrusted to him and his alleged failure to cooperate with the Board’s investigation regarding these matters. The Commission recommended a thirty-day suspension of Sherman’s license to practice law. In our de novo review, we agree that a suspension is appropriate, but suspend Sherman’s license for a minimum of three months.

I. Background Facts and Proceedings.

On August 7, 1995, Gerald Davis was involved in an automobile accident. State Farm Insurance Company insured Jimmy Collins, the owner of the other vehicle, and Brent Erhardt, who was driving Collins’s vehicle at the time. The company also insured Davis.

Sherman had successfully represented Davis’s daughter in a personal injury accident. For that reason, Davis asked Sherman to represent him in connection with injuries he had suffered in his 1995 accident. At the time Davis sought out Sherman to represent him, State Farm had already compensated Davis for the property damage to his car. In addition, the company had already paid medical expenses Davis incurred because of his injuries — a cut on the nose, some blackening of the eyes, and a possible head injury. Pain and suffering was the only item of damages for which State Farm had not compensated Davis.

At the time of the accident, Davis was receiving social security benefits for a long-time heart condition. When Davis met with Sherman, he told the lawyer he was concerned that the accident might have worsened his heart condition. Davis’s car had been rear-ended in the accident and knocked into a vehicle in front of him. Sherman agreed to represent Davis if the heart condition did worsen because of the accident. Otherwise he would not represent him because the suit was too small to handle.

Several months later, Davis called Sherman and told him — apparently for the first time — that during the accident his chest hit the steering wheel. During a later office visit, Davis told Sherman that he forgot to tell Sherman about his chest hitting the steering wheel but that he did tell the emergency doctor and his heart doctor. Sherman told Davis to continue treatment and see what “develops.” Davis’s condition deteriorated and he died on May 31,1997.

Several weeks after Davis’s death, his widow contacted Sherman to see what was going on with .the case. Sherman explained the terms of his representation, but that did not satisfy Mrs. Davis, who accused Sherman of “not doing a good job of representing her husband.” At that point, Sherman contacted Davis’s heart doctor, who told Sherman there was no connection between the heart condition and the accident.

On June 16, Mrs. Davis faxed Sherman a letter, terminating his services and directing him to release her records to another attorney whom she had retained. According to Sherman, Mrs. Davis was in Sherman’s office two weeks later pleading with Sherman to take back the case. Also according to Sherman, she admitted to him she had lied about retaining another attorney. Sherman agreed to take the case and opened the estate of Gerald Davis to prosecute the lawsuit against Collins and Er-hardt. In the meantime, Mrs. Davis moved to Texas.

Sherman opened the estate on August 6, 1997, and filed the lawsuit on the same day, which was one day before the expiration of the statute of limitations. Although Sherman obtained personal service on both defendants, the district court later ruled that such service was untimely as to Collins and dismissed the case against him. It did so because Sherman had not served Collins until 132 days after filing the petition. The court ruled that service was timely as to Erhardt, although Sherman had not served Erhardt until 119 days after filing the petition.

Sherman’s dilatory actions continued. Sherman failed to respond to defense counsel’s interrogatories until after a motion to compel. Although Sherman failed to answer all the interrogatories, he did provide the medical documentation that defense counsel felt was most important. At the same time he furnished the medical records, Sherman made a demand for $3000 to settle the case. The demand was predicated on the lack of any medical evidence that the accident worsened the deceased’s heart condition and hastened his death.

State Farm agreed to the settlement. On August 7, 1998, pursuant to that settlement, defense counsel sent Sherman a settlement check payable to Sherman and Mrs. Davis jointly for $3000 and a standard release form. In the transmittal letter, defense counsel told Sherman to have Mrs. Davis sign and date the release. As soon as Sherman returned the signed release and a file-stamped copy of a dismissal with prejudice, Sherman was authorized to negotiate the settlement check.

On November 2, defense counsel wrote Sherman, asking for the signed release and dismissal. Sherman did not respond. After several telephone calls from defense counsel and letters requesting these documents, Sherman finally responded on June 2, 1999, with a phone message that he had obtained a court order approving the settlement. The order was actually signed on April 27,1999.

On June 25, 1999, Sherman called defense counsel and told him that he had misplaced the order but would find it that weekend and would send it together with a dismissal. On July 23, in response to further inquiries from defense counsel, Sherman left a phone message that he would find the order or have a new one signed.

On August 30, 1999, defense counsel filed a counterclaim, asking the court to enter an order for specific performance of the settlement agreement. Counsel’s action was prompted by State Farm’s receipt of the $3000 check endorsed by Mrs. Davis and Sherman. On August 31, after receiving a copy of the counterclaim, Sherman filed the court order dated April 27, 1999, approving settlement. On the same day, the district court entered an order approving the settlement and dismissing the case with prejudice.

Earlier, on June 2, 1999 — almost ten months after he had received it — Sherman signed the $3000 check and sent it to Mrs. Davis without first obtaining the release. Sherman never did provide defense counsel with the release. Sherman claims he never took a fee for the settlement and spent $400 of his own funds in prosecuting the case.

Mrs. Davis filed a complaint with the Board. She claimed Sherman failed to give her the original will and copies of other probate documents, endorsed checks on her behalf without notice or permission, committed fraud or embezzlement, and was biased against her based on race or sex.

After Mrs. Davis filed the complaint, the Board sent notice of it to Sherman and asked for his response. Sherman signed a receipt for the notice but did not reply. The Board sent a second notice to the same address, which was returned “unclaimed.” The Board sent a third notice and that also was not answered.

On February 22, 2001, the Board filed a complaint against Sherman with the Commission. The complaint alleged that Sherman violated several disciplinary rules by (1) failing to file a timely inventory and interlocutory report in the estate; (2) failing to serve Collins in a timely manner in the suit, resulting in a dismissal as to him; (3) failing to serve in a timely manner answers to interrogatories in the suit; (4) failing to obtain in a timely manner an order approving settlement; and (5) endorsing the settlement check and mailing it to Mrs. Davis without providing the release and dismissal to defense counsel.

The rules that the complaint alleged were violated by this conduct include Iowa Code of Professional Responsibility for Lawyers DR 1 — 102(A)(5) (lawyer shall not engage in conduct prejudicial to the administration of justice), (6) (lawyer shall not engage in conduct reflecting adversely on fitness to practice law) and DR 6-101(A)(3) (lawyer shall not neglect a chent’s legal matter).

The complaint also alleged that Sherman violated DR 1-102(A)(5), (6), DR 6-101(A)(3) and DR 7-102(A)(3) (lawyer shall not conceal or knowingly fail to disclose that which the lawyer is required by law to reveal) by failing to promptly file the first signed order approving settlement. In addition, the complaint alleged that Sherman violated DR 9-102(B)(4) (lawyer shall promptly deliver to client property or funds belonging to client) by not promptly complying with the settlement agreement and forwarding the proceeds to Mrs. Davis. Finally, the complaint alleged that Sherman violated DR 1-102(A)(5) and (6) by failing to respond to Board inquiries.

Sherman filed answers to the Board’s request for admissions but did not file an answer to the complaint. The matter then proceeded to a hearing before the Commission.

II. Scope of Review.

Because Sherman did not appeal from the Commission’s decision, the matter is before us for our de novo review. Ct. R. 118.10. We give respectful consideration to the findings and recommendations of the Commission, although we are not bound by them. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sherman, 619 N.W.2d 407, 409 (Iowa 2000). The Board must prove misconduct by a convincing preponderance of the evidence. Id.

III. Ethical Violations.

At the hearing before the Commission, the Board presented the testimony of defense counsel in the civil suit. The witness testified about the delays in discovery and the delay in the settlement of the suit. In addition, the Board presented exhibits substantiating the delays.

Sherman also testified. He described the difficulties he had in dealing with Mrs. Davis. He also explained the personal problems he was experiencing at the time, which put him under a great deal of stress. He advised the Commission that he was winding down his practice. He conceded that some suspension of his license was probably appropriate but that the suspension should be short.

The Commission found that Sherman was delinquent in filing the inventory in the estate, failed to serve Collins in a timely manner, negotiated the settlement check without having first obtained a signed release, and failed to promptly obtain a signed court order approving the settlement. These failures, the Commission found, were in violation of DR 1-102(A)(5) and (6) and DR 6-101(A)(S).

Apparently in mitigation, the Commission found that Mrs. Davis was “extremely difficult to work with” and that “although discovery was not promptly completed,” Sherman did provide the “necessary medical reports” to opposing counsel.

The Commission further found that the ethical violations occurred during a period of time when Sherman was having similar problems with his law practice, and a similar complaint was heard. The Commission pointed out that Sherman was disciplined in that matter and for that reason felt that Davis’s complaint warranted no additional discipline. The Commission, however, did find that Sherman’s failure to respond to the Board’s inquiries was not excused and recommended a thirty-day suspension for that violation.

Commission Rule 7 provides that when a respondent fails to file a written answer to the complaint within twenty days from the completed service of notice, “the allegations of the complaint shall be considered admitted and the matter shall proceed to a hearing on the issue of the appropriate sanction.” Sherman failed to file a written answer to the complaint. The Board’s allegations of unethical conduct in the complaint are therefore deemed admitted under rule 7.

Apart from rule 7, the Board proved by a convincing preponderance of the evidence the ethical violations which the Commission found Sherman had committed. Our remaining task is to determine the appropriate discipline.

III. Discipline.

In an attorney disciplinary action, the appropriate sanction turns upon the particular facts and circumstances of each case. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lemanski, 606 N.W.2d 11, 13 (Iowa 2000). In determining the appropriate sanction, we consider the nature of the violations, the need for deterrence, protection of the public, maintenance of the reputation of the bar as a whole, and the attorney’s fitness to continue to practice law. Id. at 14. We also consider both mitigating and aggravating circumstances. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Mears, 569 N.W.2d 132, 134 (Iowa 1997). We may impose a lesser or greater sanction than the discipline the Commission recommended. Ct. R. 118.10.

In Iowa Supreme Court Board of Professional Ethics & Conduct v. Sprole, we noted that, in past cases, misconduct involving neglect had warranted “public reprimand in some cases and suspension in other cases.” 596 N.W.2d 64, 66 (Iowa 1999) (citing cases).

Here, a difficult client contributed to Sherman’s problems. In addition, during the time of these events, Sherman was under a great deal of stress. He testified that the district court had thrust upon him thirty-five cases after the local public defender’s office had closed. He also testified that the Mayo Clinic diagnosed him with major depression and obsessive-compulsive disorder in January 2001 and that he had been seeing a psychiatrist and a clinical psychologist since February 2001. No doubt Sherman was likely suffering from a debilitating mental condition at the time the ethical violations in the present case occurred. We, however, have clearly stated that such personal problems do not excuse ethical misconduct. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Adams, 623 N.W.2d 815, 818 (Iowa 2001).

Like the Commission, we recognize that the current ethical violations overlap the ones in Sherman’s prior disciplinary case before this court. See Sherman, 619 N.W.2d at 408-09. Nevertheless, we think Sherman’s prior ethical violations in the very areas of his current violations militate in favor of a suspension, a sanction he readily concedes is warranted. In addition, we note that in February 1991, Sherman was admonished for his neglect of several appellate matters and was barred from handling appellate cases in Iowa for two years. And the infractions did not end there. In October 1991, we issued an order of public reprimand for Sherman’s failure to respond to repeated requests from the Board for information about a complaint. The order also admonished Sherman for his failure to file a bankruptcy petition in a timely manner for a client. An attorney’s prior disciplinary history is an aggravating factor we consider in imposing sanctions for ethical violations. Sherman, 619 N.W.2d at 410.

What we said in Iowa Supreme Court Board of Professional Ethics & Conduct v. Scieszinski has particular application to Sherman:

We like to think our certificate of admission to the bar is an indication to citizens that the holder can and will render competent legal services. If this cannot or will not be done for any reason — even for a tragic reason — the holder must start considering another line of work.

599 N.W.2d 472, 474 (Iowa 1999).

Like some of the respondent lawyers that have come before us, Sherman “is no neophyte procrastinator.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sulins, 613 N.W.2d 656, 656 (Iowa 2000). As the record shows, Sherman’s prior disciplinary history includes client neglect and failure to respond to Board inquiries.

As mentioned, we concur with the Commission’s recommendation that Sherman’s ethical violations in this case warrant suspension of his license to practice law. However, we think the suspension should be longer than thirty days as the Commission recommended. We therefore suspend Sherman’s license to practice law indefinitely, with no possibility of reinstatement for a period of three months. This suspension shall apply to all facets of the practice of law. See Ct. R. 118.12 Costs are assessed to Sherman in accordance with Court Rule 118.22.

Upon any application for reinstatement, Sherman must furnish proof that he has not practiced law during the period of suspension and that he has in all other ways complied with Court Rule 118.18. In addition, he must provide this court with medical proof that he is mentally fit to resume the practice of law.

LICENSE SUSPENDED.


author: LARSON, Justice.

text:
    REVERE TRANSDUCERS, INC. and Dobson Park Industries, Inc., Appellees, v. DEERE & COMPANY, Appellee, State of Iowa ex rel. Civil Reparations Trust Fund, Intervenor-Appellant.
    No. 00-0167.
    Supreme Court of Iowa.
    Dec. 19, 2001.
    Thomas J. Miller, Attorney General, Craig Kelinson, Special Assistant Attorney General, and Richard E. Mull, Assistant Attorney General, for appellant.
    Paul Steinman and Timothy P. Ryan of Eckert, Seamans, Cherin & Mellott, L.L.C., Pittsburgh, Pennsylvania, and H. Daniel Holm, Jr. of Ball, Kirk, Holm & Nardini, P.C., Waterloo, for appellees Revere Transducers, Inc. and Dobson Park Industries, Inc.
    Larry J. Cohrt of Swisher & Cohrt, P.L.C., Waterloo, and Joel Carter of Deere & Company, Moline, Illinois, for appellee Deere & Company.
   LARSON, Justice.

The Iowa Civil Reparations Trust Fund (fund) has appealed an allocation order of the district court dividing punitive damages pursuant to Iowa Code section 668A.l(2)(b) (1993). The fund contends the court erred in allowing a fifty percent fee for one of the plaintiffs attorneys. We reverse and remand.

I. Facts and Prior Proceedings.

In 1993 Revere Transducers, Inc., predecessor to the plaintiff in the present case, sued Deere and Company on various theories arising from Deere’s alleged interference with Revere’s production and sale of instruments called transducers. A jury awarded the plaintiff $550,000 compensatory damages and $450,000 in punitive damages. This court affirmed the jury’s award in part, reduced the compensatory damages, and remanded for the district court to hold an evidentiary hearing regarding the distribution of the punitive-damage award. Revere Transducers, Inc. v. Deere & Co., 595 N.W.2d 751, 772 (Iowa 1999) (Revere I).

The fund, which is entitled under Iowa Code section 668A.l(2)(b) to a portion of the punitive-damage award, filed a motion for joinder or intervention and judgment entry in favor of the fund. The district court ordered division of the punitive damages as follows: Plaintiffs $145,725.75; fund $115,285.26; Eckert Law Firm (Ec-kert), attorney for the plaintiffs, $291,451.50; Ball, Kirk & Holm, co-counsel for plaintiffs, $30,440.49.

II. Discussion.

The allowance of attorney fees is reviewed under an abuse-of-discretion standard. Wooldridge v. Cent. United Life Ins. Co., 568 N.W.2d 44, 50 (Iowa 1997).

If a jury determines punishable conduct of the defendant is not directed specifically at the plaintiff, as the jury found here, Iowa Code section 668A.l(2)(b) provides for a share of the punitive damages to be paid to the fund:

[Ajfter payment of all applicable costs and fees, an amount not to exceed twenty-five percent of the punitive or exemplary damages awarded may be ordered paid to the claimant, with the remainder of the award to be ordered paid into a civil reparations trust fund administered by the state court administrator.

On this court’s remand in Revere I, the plaintiff initially argued that the entire attorney-fee award, for both the compensatory- and punitive-damage recoveries, should be taken from the punitive-damage award, thus allowing the plaintiff to keep all of the compensatory damages without payment of fees. This is not consistent with Iowa Code section 668A.l(2)(b), which limits attorney fees to be paid from the punitive-damage award to only those applicable to the procurement of the punitive damages. The district court properly applied the statute and denied this request. In Wilson v. IBP, Inc., 558 N.W.2d 132 (Iowa 1996), we confirmed this principle.

Consistent with the statutory directive of Iowa Code section 668A.l(2)(b), as interpreted by Fernandez v. Curley, 463 N.W.2d 5 (Iowa 1990), [the punitive damage award] shall be apportioned by judgment entries as follows:
(1) For payment of applicable fees and costs, including plaintiffs reasonable attorneys fees applicable to the recovery of the [punitive damage] award, from the gross punitive damage award of $2 million.

Wilson, 558 N.W.2d at 148 (emphasis added).

In Fernandez we suggested that attorney fees applicable to the recovery of the punitive damages could be calculated by applying a reasonable contingent fee agreement. The fund concedes the 38½% contingency fee agreed to by the plaintiffs and Eckert is reasonable and that 38½% of the punitive-damage award should have been paid to Eckert. The Ball Law Firm, co-counsel for the plaintiff, should be paid its hourly fees, then twenty-five percent of the total punitive-damage award should be paid to the plaintiff, and the remainder paid to the fund, according to the fund’s argument.

The district court rejected the fund’s requested allocation, instead awarding fifty percent of the punitive-damage award to Eckert. The court determined that, because Fernandez said a reasonable fee “could be measured by a reasonable contingent fee,” 463 N.W.2d at 8, it did not “preclude a subsequent court [from] allowing an award of more than the contingent fee arrangement.” The district court reasoned that Eckert expended fifty percent of its effort on the recovery of punitive damages, so it should be entitled to fifty percent of the punitive damages. However, the conclusion is simply not warranted by the premise and was an erroneous application of Iowa Code section 668A.1(2)(b). The ratio of effort expended by counsel to recover compensatory versus punitive damages is relevant only in light of the ratio of compensatory versus punitive damages actually awarded. We decline to speculate about cases in which the ratio of effort is grossly unreflective of the ratio of recovery.

We believe it is clear under a reading of the statute and our Fernandez case that an agreed contingency fee is ordinarily the fee to be applied to both the compensatory- and punitive-damage awards. (The Ball firm’s fee, which was based on an hourly charge, is not an issue before us.) We hold that, under the circumstances, the 38½% contingency fee should have been applied to both the compensatory- and punitive-damage awards. We reverse and remand for entry of an order allowing Eckert a fee of 38⅜% from the punitive-damage award and thereafter making the distribution as provided by section 668A.l(2)(b).

REVERSED AND REMANDED.


author: CARTER, Justice.

text:
    PAULINE COMPANY, INC., Appellee, v. IOWA DEPARTMENT OF TRANSPORTATION, Appellant. Rabbit Corporation, Appellee, v. Iowa Department of Transportation, Appellant.
    No. 00-0188.
    Supreme Court of Iowa.
    Dec. 19, 2001.

      Thomas J. Miller, Attorney General, David A. Ferree, Special Assistant Attorney General, and Mark Hunacek, Assistant Attorney General, for appellant.
    Peter J. Gartelos and Timothy D. Ament of Gartelos, Wagner & Ament, Waterloo, for appellees.
   CARTER, Justice.

The Iowa Department of Transportation (IDOT) appeals by permission from the denial of its motion to dismiss two civil rights actions brought under 42 U.S.C. § 1981 by minority-owned construction companies Pauline Company and Rabbit Corporation. The plaintiffs allege that they were subjected to racial discrimination in the course of performing subcontracts on IDOT projects. IDOT’s motions to dismiss asserted that 42 U.S.C. § 1981 may not be made the basis for a damage claim against a state entity. It contends that the remedy for state action that does not comply with 42 U.S.C. § 1981 lies exclusively under 42 U.S.C. § 1983. The district court rejected that argument. After reviewing the record and considering the arguments presented, we agree with IDOT’s contention and reverse the judgment of the district court.

In Jett v. Dallas Independent School District, 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989), the Supreme Court was asked to determine if 42 U.S.C. § 1981 provided an independent federal cause of action for damages against government entities. The Court concluded Congress intended the explicit remedial provisions of 42 U.S.C. § 1983 to be the exclusive vehicle for damage actions brought against state actors for violations of rights declared in § 1981. Id. at 731, 109 S.Ct. at 2721, 105 L.Ed.2d at 624. In seeking to uphold the district court’s ruling in the present case, plaintiffs urge that, following the Jett decision, a 1991 amendment to 42 U.S.C. § 1981 altered the statute in a manner that now recognizes a cause of action against state actors under that statute.

At the time Jett was decided, 42 U.S.C. § 1981 provided:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and ex-actions of every kind, and to no other.

Subsequently, Congress passed the Civil Rights Act of 1991, which added two subsections to 42 U.S.C. § 1981:

(b) For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

Pub.L. No. 102-166,105 Stat. 1071, Title 1, § 101 (1991). Only subsection (c) is at issue here.

One federal circuit has agreed with plaintiffs’ argument and held that it was the purpose of § 1981(c), as added to the statute in 1991, to treat private actors and state actors similarly with respect to their right to sue. Fed’n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1214 (9th Cir.1996). Because private actors were subject to suit under § 1981, the court held that state actors could be similarly sued. Two federal circuits have ruled otherwise, holding that the 1991 amendment to § 1981 did not alter the statute in a manner that affected Jett’s limitation on liability suits challenging state action. Butts v. County of Volusia, 222 F.3d 891, 892 (11th Cir.2000); Dennis v. County of Fairfax, 55 F.3d 151, 156 (4th Cir.1995).

We are convinced that the holdings of the eleventh circuit and the fourth circuit have correctly determined that the 1991 amendment to 42 U.S.C. § 1981 did not alter its legal effect with respect to remedies against state actors. The primary basis for our conclusion is to be found in the Supreme Court’s discussion in Jett. The Court expressly concluded that “Congress has established its own remedial scheme” for § 1981 violations. Jett, 491 U.S. at 731-32, 109 S.Ct. at 2721, 105 L.Ed.2d at 624. The Court found this remedial scheme to be that contained in § 1983. Id. A separate opinion by a justice who joined in the division of the opinion that relegated state-action violations to suits under § 1983 stated the point more precisely:

To hold that the more general provisions of 42 U.S.C. § 1981 establish a mode of liability for a particular category of offense by municipalities that is excluded from the closely related statute (42 U.S.C. § 1983) which deals more specifically with that precise category of offense would violate the rudimentary principles of construction that the specific governs the general, and that, where text permits, statutes dealing with similar subjects should be interpreted harmoniously.

Jett, 491 U.S. at 738-39, 109 S.Ct. at 2724, 105 L.Ed.2d at 629 (Scalia, J., concurring). Nothing in the 1991 amendment speaks of adding a remedy under that statute for claims against state actors. If a departure from existing law of that magnitude had been intended, we believe the Congress would have expressly so stated in the language of the amendment.

The House Committee on the Judiciary explained in its report that the Civil Rights Act of 1991 was enacted in response to a number of Supreme Court decisions limiting the scope and effectiveness of discrimination in employment laws. H.R.Rep. No. 102-40(11), at 1 (1991). The report listed ten Supreme Court decisions, which were overruled by the Civil Rights Act of 1991. Id. at 2-4. Jett was not among the decisions listed. Id. We are satisfied that the 1991 amendment did not alter the legislation in a manner that permits the present action to proceed against this state-entity defendant. The judgment of the district court must be reversed. The case is remanded to that court for an order granting IDOT’s motions to dismiss in each action.

REVERSED AND REMANDED.

      . A very significant consequence of this conclusion is the related holding of the Court that a state entity is not subject to suit for civil rights violations based on 42 U.S.C. § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45, 58 (1989).


author: TERNUS, Justice.

text:
    Richard GILBERT, Appellant, v. USF HOLLAND, INC., and Constitution State Service Company, Appellees.
    No. 00-0873.
    Supreme Court of Iowa.
    Dec. 19, 2001.

      Jerry Jackson of Moranville & Jackson, P.C., West Des Moines, for appellant.
    John E. Swanson and Aaron T. Oliver of Hansen, McClintock & Riley, Des Moines, for appellees.
   TERNUS, Justice.

This appeal involves the imposition of penalty benefits on an employer and workers’ compensation carrier who contested an employee’s entitlement to disability benefits. The district court, on judicial review, affirmed the award of disability benefits, but reversed the award of penalty benefits. The employee’s appeal was transferred to the court of appeals where the district court ruling on the penalty benefits issue was reversed and the industrial commissioner’s award of such benefits was affirmed. We granted further review and now vacate the court of appeals decision and affirm the judgment of the district court.

I. Background Facts and Proceedings.

These legal proceedings began when the appellant, Richard Gilbert, filed a workers’ compensation claim for an injury suffered on June 4, 1997. The following recitation of facts is based on the findings made by the industrial commissioner and the documentary evidence submitted at the arbitration hearing.

At the time of his injury, Gilbert was employed by the appellant, USF Holland, Inc., as a city delivery driver in Des Moines, delivering and picking up freight throughout the city. On June 4, 1997, Gilbert made a delivery to Sun Chemical. When he was finished, he bent over to pull up on a dock plate. A dock plate is a heavy metal ramp used to load and unload trucks. It is mechanically balanced so that, despite its approximately 2000-pound weight, it is generally easily engaged or disengaged by pulling on a cord. This time, however, the dock plate allegedly stuck, and “jerked [Gilbert] back down.” Gilbert felt some pain in his back at the time, but did not think anything about it. His second attempt to disengage the dock plate was successful. Gilbert then walked over to a nearby desk to sign a weigh bill. When he stood up after signing the bill, “everything just popped loose” and he felt a great deal of pain. He immediately reported the injury to one of the company dispatchers.

The following day Gilbert completed an injury investigation form for his employer. The report asked for the “Employee’s handwritten account of HOW [the] injury occurred.” Gilbert wrote, “Bent over desk to sign billQ] when stood back up neck popped.” The report further asked the employee why he felt the injury occurred, to which Gilbert responded, “Has no idea what happened.” He also wrote that he had “no idea” how he may have contributed to the injury. Gilbert did not make any reference in his report to having pulled on a stuck dock plate prior to signing the weigh bill nor that he felt something in his back at that time. Additionally, he did not mention the dock plate incident to his supervisor who was present when Gilbert completed the form.

Gilbert was initially treated by Dr. Barbara White, whose exam notes from June 5,1997 stated: “Richard comes to us today after injury last evening when he was leaning over [to] sign some forms at work and at that time he felt a popping in his neck and since that time has had upper thoracic pain with movement and stiffness.” Gilbert was also seen by a physical therapist on June 5, who reported in his notes that Gilbert “stat[ed] he was injured on the previous day while bending forward [and] upon arising [he] noted popping in his neck and had immediate onset of pain on the right paraspinal muscles of cervical spine.” Gilbert also informed the therapist that he had suffered a previous injury to his neck approximately two years ago that had responded well to physical therapy. Neither the physician’s notes nor the physical therapist’s notes of June 5 indicate that Gilbert associated his pain with pulling on a dock plate.

Gilbert’s condition responded to conservative treatment and he was returned to full duty at his regular position on June 12. At that time, one of his treating physicians, Dr. Maurice Minervini, indicated that Gilbert’s cervical and thoracic sprains were resolved.

Shortly after Gilbert returned to work, he was told he was not entitled to any workers’ compensation benefits because his injury was idiopathic: it “could happen to anybody at any time.” At that point, Gilbert said he “clarified” with the insurance adjuster “what [he] was doing at the time about the dock plate pulling the door down and then walking over and signing the weigh bill.” The workers’ compensation carrier did not, however, change its determination that the injury was noncom-pensable.

Approximately one month later, on July 12, Gilbert felt something pop in the back of his neck as he got out of bed. He felt severe pain radiating down his right arm. Gilbert sought medical treatment again and eventually was referred to Dr. Thomas Carlstrom. In reporting the history of his condition to this physician, Gilbert said “he had pulled on a sticky dock plate” “shortly before” he felt something pop in his neck when straightening up. Dr. Carlstrom diagnosed a herniated disk and further opined that Gilbert’s current symptoms “should be referred back to the June incident at work.” By late August, Gilbert was able to resume his normal job duties without restrictions. Dr. Carlstrom opined that Gilbert had no permanent impairment from his injury.

The employer and its insurer, appellee, Constitution State Service Company, continued to maintain that the June 4 injury did not arise out of Gilbert’s employment and, therefore, was not compensable. (Future references to the “employer” include the insurance carrier.) In an effort to prove otherwise, Gilbert provided the employer with a letter from Dr. Carlstrom wherein the doctor stated that Gilbert’s “neck pain, herniated cervical disc, and cervical radiculopathy should all be related to a lifting, tugging work injury on the 4th of June, 1997.” Gilbert also obtained a letter from Dr. Minervini, who stated that he never said in his progress notes that “[t]his is not a work related injury.” Finally, Gilbert obtained a statement from a man who asserted that he had witnessed the June 4, 1997 incident and gave the following account: “[Gilbert] bent over to pop up a sticking dock plate then closed his trailer door. He then walked over to the desk and bent over to sign his bills and when he stood back up I heard him groan and saw him grab his neck.”

Despite these statements, the employer persisted in its denial of benefits. It contended that the act of bending over and straightening up caused Gilbert’s injury and that an injury occurring as a result of this everyday activity did not arise out of Gilbert’s employment. The employer disputed Gilbert’s assertion that the injury occurred when he pulled on the stuck dock plate, noting that this version of the events of June 4 did not surface until after compensation benefits had been denied. The employer found the recent reports from the treating physicians unconvincing because these opinions were based on Gilbert’s current rendition of the facts of his injury, rather than the explanation he originally gave for how the injury occurred.

As noted previously, Gilbert filed a workers’ compensation action. He sought disability benefits and penalty benefits for the employer’s refusal to timely pay weekly benefits. The matter proceeded to hearing. The deputy industrial commissioner noted in his decision that the employer had placed the employee’s credibility at issue. The deputy then made a finding that the employee was credible and rejected the employer’s reliance on Gilbert’s initial explanation of his neck injury. Accordingly, the deputy found that Gilbert had sustained an injury arising out of his employment. The deputy awarded healing period benefits and permanent partial disability benefits based on a finding of a twenty percent impairment.

In considering the employee’s claim for penalty benefits, the deputy concluded that the employer did not have a reasonable basis for denying the employee’s claim on the ground that it was not work-related. Consequently, Gilbert was awarded a penalty of one-half of the healing period benefits. The deputy denied penalty benefits, however, as to the employer’s refusal to pay permanent partial disability benefits. He noted Dr. Carlstrom’s view that Gilbert had sustained no permanent impairment coupled with Gilbert’s release to return to • work without restrictions made the issue of permanent disability fairly debatable.

On the employer’s appeal to the industrial commissioner, the commissioner affirmed an award of disability benefits, but reduced the amount to five percent. As for the penalty benefits, the commissioner stated:

Defendants’ assertion that the medical diagnosis of cervical strain/sprain as well as the later diagnosed herniated disc condition was due to the bending over incident and not earlier activity was a conclusion that had no support in the record following Dr. Carlstrom’s and Dr. Minervini’s reports.

The commissioner also agreed with the deputy that the “continued denial of the claim after such matters were addressed by Drs. Carlstrom and Minervini was not fairly debatable and was not reasonable.” Therefore, the commissioner affirmed the deputy’s award of penalty benefits relating to nonpayment of healing period benefits.

Gilbert sought judicial review in the district court, as did the employer. The district court affirmed the five-percent permanent partial disability award, but reversed the industrial commissioner’s award of penalty benefits. The court stated in part:

Here [Gilbert] provided a history about how the June 4, 1997, incident occurred. He provided it not once, but three separate times. Then [Gilbert’s] workers’ compensation claim was denied. After that he changed his history. It defies logic to suggest that this “abrupt change in facts” should now pre-elude the [employer] from disputing the work relatedness of the claim.

The court also noted that “[mjerely because an injured worker changes the history of the incident and [gives] only the changed history ... to subsequent care providers does not mean the initial history - by the injured worker must be totally disregarded.”

Gilbert appealed the district court’s decision on penalty benefits, and his appeal was transferred to the court of appeals. That court reversed the district court and affirmed the industrial commissioner’s penalty-benefits award. We granted further review.

II. Scope of Review.

Our review is governed by Iowa Code chapter 17A (1997), Iowa’s Administrative Procedure Act. See Herrera v. IBP, Inc., 633 N.W.2d 284, 286-87 (Iowa 2001). “An appeal of a district court’s ruling on judicial review of an agency decision ⅛ limited to determining whether the district court correctly applied the law in exercising its section 17A.19(8) judicial review function.’” Id. at 287 (quoting Ahrendsen ex rel. Ahrendsen v. Iowa Dep’t of Human Servs., 613 N.W.2d 674, 676 (Iowa 2000)). Section 17A.19(8) permits a reviewing court to reverse an agency decision when it is “[i]n violation of constitutional or statutory provisions,” “[a]ffected by other error of law,” or “unsupported by substantial evidence in the record made before the agency when that record is viewed as a whole.” Iowa Code § 17A.19(8)(u), (e), (f).

Our review is for correction of errors of law, not de novo. See Dunlavey v. Economy Fire & Cas. Co., 526 N.W.2d 845, 849 (Iowa 1996). Thus, we “are not free to interfere with [an] agency finding where there is a conflict in the evidence or when reasonable minds might disagree about the inference to be drawn from the evidence, whether disputed or not.” Stephenson v. Furnas Elec. Co., 522 N.W.2d 828, 831 (Iowa 1994). On the other hand, we are not bound by findings that lack substantial evidence or “as to which there is no room for difference of opinion among reasonable minds.” Id.

III. Penalty Benefits.

The only issue on appeal is whether the agency correctly determined that Gilbert was entitled to penalty benefits relating to the employer’s nonpayment of healing period benefits. Iowa’s workers’ compensation act sets forth the circumstances under which penalty benefits are to be awarded:

If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award benefits in addition to those benefits payable under this chapter ... up to fifty percent of the amount of benefits that were unreasonably delayed or denied.

Iowa Code § 86.13. “[S]eetion 86.13 ‘recognizes ... an affirmative obligation on the part of the employer and insurance carrier to act reasonably in regard to benefit payments in the absence of specific direction by the commissioner.’ ” Christensen v. Snap-On Tools Corp., 554 N.W.2d 254, 260 (Iowa 1996) (alteration in original) (quoting Boylan v. Am. Motorists Ins. Co., 489 N.W.2d 742, 743 (Iowa 1992)).

This court has noted that section 86.13 codifies, in the workers’ compensation context, the common law rule that an insurer with a good faith dispute over the legal or factual validity of a claim can challenge the claim, if its basis for doing so presents a fairly debatable issue. See Covia v. Robinson, 507 N.W.2d 411, 412 (Iowa 1993). Thus, when an employee’s claim for benefits is fairly debatable based on a good faith dispute over the employee’s factual or legal entitlement to benefits, an award of penalty benefits is not appropriate under the statute.

At this juncture, it is appropriate to note the basis for USF Holland’s denial of Gilbert’s workers’ compensation claim. Gilbert’s claim was rejected because the employer determined that Gilbert’s injury did not arise out of his employment. The commissioner held that this issue was not fairly debatable. Whether the issue was fairly debatable turns on whether there was a disputed factual issue that, if resolved in favor of the employer, would have supported the employer’s denial of compensability. The employer argued that there was a factual dispute as to how the injury occurred. The commissioner held, however, that once the physicians rendered their opinion that the injury was caused by Gilbert’s puking on the stuck dock plate, there was no factual basis for a continued belief that the injury did not arise out of Gilbert’s employment.

Before we address whether there was a material factual dispute as to com-pensability, it is helpful to consider the legal context in which this dispute arose.

It is well settled in Iowa that for an injury to be compensable, it must occur both in the course of and arise out of employment. The words “in the course of’ refer to the time, place, and circumstances of the injury. The term “arising out of’ refers to the cause and origin of the injury. The two tests are separate and distinct and both must be satisfied in order for an injury to be deemed compensable.

Miedema v. Dial Corp., 551 N.W.2d 309, 310-11 (Iowa 1996) (citations omitted). In this case it was undisputed that Gilbert’s injury occurred “in the course of’ his employment. He was on the job, picking up freight at a customer site when the injury happened. The dispute here centers on whether the injury arose out of the employment.

We have stated that for an injury to arise out of the employment, “[t]he injury must not have coincidentally occurred while at work, but must in some way be caused by or related to the working environment or the conditions of ... employment.” Id. at 311. In other words, the injury “must be a rational consequence of a hazard connected with the employment.” Cedar Rapids Cmty. Sch. v. Cady, 278 N.W.2d 298, 299 (Iowa 1979); see also Koehler Elec. v. Wills, 608 N.W.2d 1, 4 (Iowa 2000) (“Generally injuries resulting from risks personal to the claimant are not compensable.”). With these principles in mind, we now examine the factual basis for the employer’s position that Gilbert’s injury did not arise out of his employment.

USF Holland relied on Gilbert’s initial explanation for his injury in determining that his injury was not compensa-ble. The employer maintained that an injury resulting from the employee’s act of straightening up after bending over was not caused by a “hazard connected with the employment.” Although the commissioner believed that this position was reasonable based on the initial information available to the employer, the commissioner concluded that the employer’s denial became unreasonable after Dr. Carlstrom and Dr. Minervini gave their opinions that Gilbert’s injury was causally connected to Gilbert’s employment.

We agree with the district court that there is not substantial evidence in the record to support the commissioner’s decision. Although the physicians concluded that Gilbert’s injury was caused by his employment, these opinions were based on Gilbert’s revised history of his injury. The employer has never asserted that the act of tugging and lifting on a stuck dock plate could not have caused the injuries suffered by Gilbert. What the employer disputed is whether the employee’s revised or amplified version of the events of June 4— that he first felt pain when he pulled on a stuck dock plate — was true. Thus, the industrial commissioner should have focused on whether there was a fair debate over how the injury occurred. We think there indisputably was.

In this case, the employee originally reported on three separate occasions that the injury occurred as he straightened up after signing some work documents. The occurrence of an injury in this manner would arguably be coincidental to work and would not necessarily be related to the conditions of employment. See Miedema, 551 N.W.2d at 312 (affirming denial of workers’ compensation benefits to an employee who injured his back when flushing a toilet at work). We think the district court was correct when it observed that the employer was entitled to rely on Gilbert’s original version of his injury even though he subsequently changed his story of how the injury occurred.

Gilbert maintains, however, that he never changed his story; he merely gave a more complete rendition of the facts after he learned that it was important for him to do so. Regardless of how Gilbert’s reporting of his injury is characterized, it cannot be disputed that he never mentioned that he first felt pain after pulling on the dock plate, as opposed to when he straightened up, until after his claim had been denied. The employer was certainly entitled to argue that this previously undisclosed fact was a fabrication. Given the fact that not even the eyewitness corroborated this aspect of Gilbert’s history, that pulling on the dock plate triggered the onset of pain, resolution of the matter rested on Gilbert’s credibility, which the employer was free to challenge. As the deputy noted, there was a credibility issue in this case for the commissioner to resolve. The fact that the commissioner resolved the credibility issue in favor of the employee did not mean that there was not a reasonable dispute with respect to how the accident occurred.

Gilbert also argues that the employer had no reasonable basis to debate the causal connection between Gilbert’s injury and his employment because the employer had no medical evidence controverting the testimony of Drs. Carlstrom and Minervi-ni. We do not think the absence of medical testimony on behalf of the employer is important with respect to Gilbert’s entitlement to penalty benefits. As we have pointed out, the debatable issue in this case was- factually how the injury occurred. Medical testimony on causation is simply not relevant to resolution of this contested factual issue. In other words, the fact that the physicians relied on the revised history rather than the original history did not resolve the factual dispute as to how the injury occurred. Thus, the commissioner’s reliance on the medical testimony as support for her finding that there was not a reasonable basis to contest compensability was erroneous.

Finally, Gilbert criticizes the employer for failing to interview the man who witnessed Gilbert’s injury. Gilbert argues the employer’s inadequate investigation supports the commissioner’s finding that the employer did not have a reasonable basis to deny compensability. Even if we assume there was some deficiency in the employer’s investigation, a question we do not address, Gilbert fails to point out what information would have been gained from an interview of the witness that was not already available to the employer in the witness’s statement provided by Gilbert. Consequently, the employer’s failure to interview the witness does not support the commissioner’s finding that the employer’s failure to pay benefits lacked a reasonable basis.

In conclusion, we hold as a matter of law there was a reasonable factual dispute as to the manner in which Gilbert’s injury occurred. Therefore, there is not substantial evidence in the record to support a finding that the compensability of his injury was not fairly debatable. We vacate the court of appeals contrary decision and affirm the district court’s judgment reversing the commissioner’s award of penalty benefits.

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

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

      . Iowa's Administrative Procedure Act was extensively amended in 1998. See 1998 Iowa Acts ch. 1202. The 1998 act provides that the amendments are to take effect on July 1, 1999 and apply to agency proceedings commenced on or after that date. See id. § 46. Since the agency proceedings at issue here were commenced in 1998, the amendments do not apply-

      . An award of penalty benefits is also inappropriate where a reasonable delay in payment is necessary to allow the insurer to investigate the claim. See Kiesecker v. Webster City Custom Meats, Inc., 528 N.W.2d 109, 111 (Iowa 1995).


author: NEUMAN, Justice.

text:
    STATE of Iowa, Appellee, v. Oliver Vernon MILLER, Appellant.
    No. 00-0644.
    Supreme Court of Iowa.
    Dec. 19, 2001.

      Linda Del Gallo, State Appellate Defender, Tricia A. Johnston, Assistant State Appellate Defender, and Don Schroeder, West Liberty, for appellant.
    Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, and James Detaeye, County Attorney, for appellee.
   NEUMAN, Justice.

This is a case about mixed messages.

Angered over the outcome of a trial, Oliver Miller reduced $25 in court costs to pennies, wrapped them in socks and barbed wire, and sent them to the Marshall County clerk of court in a crudely-taped Valvoline Oil box. He affixed no return address to the package and, in a deliberate fit of pique, misspelled the name of the clerk, Doloris Falstrup, as Doloris “Fascistrup.” Block letters on one side of the box warned “TOP OPEN CAREFULLY.” Shipped via UPS, the - package weighed roughly seventeen pounds.

Alarmed over the heavy and suspicious-looking box, court officials called in the bomb squad. They evacuated the courthouse for four hours while firearms experts x-rayed the package and then “exploded” it at a firing range. Of course the explosion yielded only a large quantity of change, athletic socks and barbed wire. Amidst the rubble, a crumpled note was found: “Kindly accept this as payment of court costs of the trial on August 2, 1999, against Oliver Miller. Thanks.”

Because Miller sent one message but court officials got another, the State charged Miller with a crime called “False Reports.” See Iowa Code § 712.7 (1999). At trial, and now on appeal following conviction, Miller poses interesting statutory and constitutional questions involving free speech, vague and overbroad statutes, and the sufficiency of the evidence to support the charge. But as interesting as those issues might be, we need not address them because the State failed to bring Miller to trial within the ninety-day deadline of Iowa rule of criminal procedure 27(2)(b). We therefore reverse.

I. Background Facts.

The facts pertinent to the speedy-trial issue are essentially undisputed. On September 10, 1999, the State filed a trial information charging Miller with a violation of section 712.7, false reports. Within three days, Miller’s counsel moved for a bill of particulars. The motion was accompanied by a written arraignment form and plea of not guilty that specifically demanded Miller’s right to a speedy trial. A subsequent “Arraignment Order” set trial for November 2.

The court sustained Miller’s motion for bill of particulars, and the State responded by October 7. Meanwhile, on September 24, Miller moved to dismiss the trial information on three grounds: the false reports statute is unconstitutionally overbroad because it criminalizes protected speech, the statute is impermissibly vague because it does not give fair warning of what conduct is prohibited, and prosecution under section 712.7 violates defendant’s right to due process and fundamental fairness under the United States and Iowa constitutions. On October 11, four days after the State filed its bill of particulars, Miller moved to dismiss the prosecution on the additional ground “the particulars stated do not constitute the offense charged.”

A hearing on the consolidated motions to dismiss was held on October 25 before Judge Dale Ruigh. The parties submitted written briefs and offered argument in support of their positions. At the close of the hearing, the court observed that it could not render a decision before the trial date scheduled a week hence. Although the record is unclear on the point, it appears the trial date was indefinitely continued pending the court’s ruling on the motions. The court filed its ruling on December 2, thirty-eight days after the hearing and seven days prior to the speedy-trial deadline.

Trial commenced on December 14 before Judge Carl Peterson. An insufficient number of jurors responded to the summons, and many of those who appeared had knowledge of the case. Because the panel was inadequate to comply with the rules of criminal procedure, the court declared a mistrial. It then rescheduled the case for January 11, 2000, whereupon the State asked for a trial the very next day, noting it was already “the 91st day.” Miller then moved for dismissal based on violation of his right to be tried within ninety days from the filing of the trial information. See Iowa R.Crim. P. 27(2)(b).

In a subsequent written ruling, the court denied Miller’s motion to dismiss. The court reasoned- that “some” of the delay was attributable to the time needed to rule on Miller’s motions; the last available trial date in Marshall County before the speedy-trial deadline was November 30; Judge Ruigh’s ruling was not filed until December 2; and trial was set for the next available trial date following the ruling. Because the deadline was missed by only one day, the court ruled, Miller suffered no prejudice warranting reversal.

II. Scope of Review.

Miller cites error in the court’s application of procedural rules governing speedy trial; thus our review is for the correction of errors at law. State v. Finn, 469 N.W.2d 692, 693 (Iowa 1991). The trial court’s discretion to avoid dismissal under rule 27(2)(b) is circumscribed by the limited exceptions to the rule’s mandate. State v. Bond, 340 N.W.2d 276, 279 (Iowa 1983); State v. Olson, 528 N.W.2d 651, 653 (Iowa Ct.App.1995). So the question, ultimately, is whether the trial court properly exercised — or abused — its limited discretion under the rule. Bond, 340 N.W.2d at 279.

III. Applicable Law.

Rule 27(2)(b) states that a defendant “must be brought to trial within ninety days after indictment is found or the court must order the indictment to be dismissed unless good cause to the contrary be shown.” (Emphasis added.) We have repeatedly observed that the rule is more stringent than its constitutional counterpart recognized in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). State v. Nelson, 600 N.W.2d 598, 600 (Iowa 1999); Bond, 340 N.W.2d at 278; State v. Petersen, 288 N.W.2d 332, 335 (Iowa 1980). Thus, as we explained in Nelson, we do not apply Barker’s four-factor balancing test (length of delay, reason for delay, whether right to speedy trial was demanded, and prejudice). Nelson, 600 N.W.2d at 601 n. 2. Instead, we have interpreted our rule to require dismissal for failure to comply with the rule’s ninety-day deadline unless the defendant has waived speedy trial, the delay is attributable to the defendant, or other “good cause” exists for the delay. Id. The burden of proving an exception to the rule’s deadline rests squarely with the State. Olson, 528 N.W.2d at 653.

“Delay attributable to the defendant” may include whatever passage of time is “reasonably necessary” to act upon a defendant’s motions. State v. Moehlis, 250 N.W.2d 42, 45 (Iowa 1977); State v. Searcy, 470 N.W.2d 46, 47 (Iowa Ct.App. 1991); accord Nelson, 600 N.W.2d at 601. In Searcy, for example, the defendant’s filing of a motion to suppress thirty days after the trial date was set, and only three days prior to trial, justified good cause for a continuance beyond the speedy-trial deadline. Searcy, 470 N.W.2d at 47. Similarly, where multiple defendants’ motions to suppress were filed one week before trial, this court found no abuse in the trial court’s discretion to continue a trial six days beyond the deadline “to permit resolution of the suppression motions, which might have been dispositive of the cases.” State v. Todd, 468 N.W.2d 462, 470 (Iowa 1991). On the other hand, a defendant who files a timely motion does not thereby forfeit the right to be tried without lengthy or unexplained delay. Nelson, 600 N.W.2d at 601. “Prior cases teach that the general press of court business is insufficient to avoid dismissal under a speedy-trial rule, even for a busy judge sitting in a high-volume court.” Id. at 602.

This brings us to the concept of “good cause.” We have repeatedly said that, under our rule, good cause “focuses on only one factor: the reason for the delay.” Id. at 601 (quoting Petersen, 288 N.W.2d at 335); Bond, 340 N.W.2d at 279. We also made plain in Petersen that we do not adhere to the four-factor Barker v. Wingo test because “[i]f the reason for the delay is sufficient the other factors are not needed. If the reason for the delay is insufficient the other factors will not avail to avoid dismissal.” Petersen, 288 N.W.2d at 335 (emphasis added). Yet, mindful that “delay cannot be evaluated entirely in a vacuum,” our cases have tended to repeat the Barker factors as “surrounding circumstances” having some limited bearing on the inquiry. Id. We now take this opportunity to clarify, as we did in Petersen, that such factors are,

important, if at all, only insofar as they bear on the sufficiency of the reason itself. The shortness of the period, the failure of the defendant to demand a speedy trial, and the absence of prejudice are legitimate considerations only insofar as they affect the strength of the reason for delay. This means that, to whatever extent the delay has been a short one, or the defendant has not demanded a speedy trial, or is not prejudiced, a weaker reason will constitute good cause. On the other hand, if the delay has been a long one, or if the defendant has demanded a speedy trial, or is prejudiced, a stronger reason is necessary to constitute good cause.

Id.; accord Nelson, 600 N.W.2d at 601; Bond, 340 N.W.2d at 279.

Finally, it is axiomatic that defendants have no duty to bring themselves to trial. Nelson, 600 N.W.2d at 602; State v. Orte, 541 N.W.2d 895, 898 (Iowa Ct.App.1995). And, because every rule of limitation sets an arbitrary date beyond which “certain actions cannot be brought or certain rights cannot be enforced,” a procedural deadline cannot be escaped merely by showing it has been violated “only a little bit.” State v. Goff, 244 N.W.2d 579, 582 (Iowa 1976) (quoting State v. Nelson, 222 N.W.2d 445, 449 (Iowa 1974)).

IY. Analysis.

At the outset we note that most, if not all, eases justifying reversal based on speedy-trial violations involve delays numbering weeks or months, not days. See, e.g., Nelson, 600 N.W.2d at 601 (four-month delay); Orte, 541 N.W.2d at 898 (seven-month delay); Olson, 528 N.W.2d at 654 (delay “spanned nearly eight months”). Here, the trial slipped only one day past the deadline before the court was faced with a motion to dismiss. But, as the cases recited in the preceding division make clear, the question is not whether the delay was great or small, but whether the reason given justifies departure from the rule at all.

The trial court concluded that “a number of days” must be fairly attributable to Miller based on the time necessary for ruling on his motions to dismiss. Defense counsel conceded as much, readily agreeing at the October 25th hearing that a ruling could not reasonably be expected before the trial then set for November 2. But at that point, no deadline was looming. Because all defense motions had been timely filed and heard with reasonable promptness, nearly forty-five days remained before the deadline would expire.

We think it significant that, in fact, Judge Ruigh’s ruling came down with a week to spare. Yet instead of honoring Miller’s speedy trial demand, the court simply disregarded the rule’s mandate— and Miller’s rights under it — to set a trial date at its convenience. The court’s subsequent speedy-trial ruling attempted to justify its decision by stating that Miller “has not shown that he was prejudiced by the delay of one day.” But the burden was not on Miller. The burden was on the State, in the first instance, to prove “good cause” for missing the deadline. It made no such case in the trial court.

Implicit in the court’s ruling is its deference to the established trial schedule for Marshall County, a schedule that evidently accommodated no “regular” trial date after November 30 and before December 14. Under this rationale, because Judge Ruigh’s ruling was not filed before the last “regular trial date” in Marshall County before the speedy-trial deadline, Miller was simply out of luck. What the court’s ruling disregards is the important distinction between “chronic court congestion and specific circumstances arising out of unique, non-recurring events which create a particular scheduling problem.” Bond, 340 N.W.2d at 279. The latter justifies departure from the rule, the former does not. See id. (citing cases).

Given Miller’s demand for speedy trial and strict adherence to pretrial deadlines, only a strong reason would justify departure from rule 27(2)(b)’s mandate. Unfortunately the record before us furnishes no reason for the delay, let alone a strong one. As a result, we cannot say the court properly exercised its limited discretion under the rule. Its decision must be reversed.

In keeping with the mandate of rule 27(2)(b), the charges against Miller must be dismissed. We therefore reverse the judgment entered upon Miller’s conviction and remand to the district court for dismissal of the trial information.

REVERSED AND REMANDED.

      . The statute states:
      A person who, knowing the information to be false, conveys or causes to be conveyed to any person any false information concerning the placement of any incendiary or explosive device or material or other destructive substance or device in any place where persons or property would be endangered commits a class ''D” felony.
      Iowa Code § 712.7.

      . The rule states:
      If a defendant indicted for a public offense has not waived his or her right to a speedy trial he or she must be brought to trial within ninety days after indictment is found or the court must order the indictment to be dismissed unless good cause to the contrary be shown.
      Iowa R.Crim. P. 27(2)(b).