author: GILBERTSON, Chief Justice.

text:
    2002 SD 2
    In the Matter of APPROVAL OF REQUEST FOR AMENDMENT TO FRAWLEY PLANNED UNIT DEVELOPMENT.
    No. 21783.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 13, 2001.
    Decided Jan. 2, 2002.

      Brad P. Gordon of Fuller, Tellinghuisen, Gordon & Percy, P.C. Spearflsh, South Dakota, Attorneys for appellee Frawley Ranches, Inc.
    Reed C. Richards of Richards and Richards, Deadwood, South Dakota, Attorneys for appellants Robert & Gen Harlan.
   GILBERTSON, Chief Justice.

[¶ 1.] Frawley Ranches (Developer) was granted approval in 1992 for a Planned Unit Development (PUD) spanning 2,873.79 acres in Lawrence County, South Dakota. While the PUD could potentially contain seventy-one home sites, Developer platted only eight. Robert and Gen Harlan (Harlan) purchased one of the original eight sites in 1993. On June 21, 2000, Developer applied for and received permission to amend the PUD, adding sixteen new sites and enlarging five of the original eight sites. Harlan sued Lawrence County and Developer, alleging the PUD violated Lawrence County Ordinance 4.10.4 and that the PUD could no longer be amended because the ordinance allowing PUDs (Section 4.10) had been repealed by implication. On appeal, the circuit court upheld the Lawrence County Commission decision. We affirm.

FACTS AND PROCEDURE

[¶ 2.] In 1992, Developer submitted and received approval for a 2,873.79-acre PUD in Lawrence County. The PUD is located in an A-l General Agricultural District, which is required by county ordinance to apportion a minimum of forty acres per home site (allowing a maximum of seventy-one sites in Developer’s PUD). “Clustering” of the home sites is, however, allowed and Developer chose to plat only eight two-acre sites. Harlan bought one of these original eight sites from Developer in 1993, only three of which were sold.

[¶ 3.] In 1998, Lawrence County adopted a new Comprehensive Plan, which did not specifically provide for PUDs. Neither, however, did the Comprehensive Plan prohibit them. Additionally, no change in the zoning ordinances that enforce the Comprehensive Plan had been proposed or adopted as of the date of this action.

[¶ 4.] On June 21, 2000, Developer applied for approval to amend its original PUD to include sixteen additional sites and to enlarge the five unsold lots. Harlan opposed this amendment because Developer was not being required to plat all seventy potential home sites. Nevertheless, the Lawrence County Commission determined that Developer had complied with the PUD ordinance requirements and approved the amendment.

[¶ 5.] Harlan appealed the Commission’s decision to the Fourth Judicial Circuit pursuant to SDCL 7-8-27. On October 31, 2000, the circuit court entered an order affirming the Commission’s decision to approve the amendment. Harlan appeals, raising the following issues:

1. Whether Developer’s PUD application is defective for failing to state the maximum number of home sites planned for development.
2. Whether Lawrence County Ordinance Section 4.10 was impliedly repealed by the adoption of the 1998 Comprehensive Plan, thereby precluding amendment of a previously approved PUD.

STANDARD OF REVIEW

[¶ 6.] Zoning ordinances, as legislative enactments, are interpreted consistent with the rules of statutory construction. Cole v. Board of Adjustment of the City of Huron, 1999 SD 54, ¶ 4, 592 N.W.2d 175, 176 (citations omitted). “The interpretation of an ordinance presents a question of law which we review de novo. When interpreting an ordinance, we must assume that the legislative body meant what the ordinance says and give its words and phrases plain meaning and effect.” Id. (internal and additional citations omitted).

[¶7.] “SDCL 7-8-30 provides an appeal from a decision of a county commission shall be heard and determined by the circuit court de novo.” Coyote Flats, L.L.C. v. Sanborn County Comm’n, 1999 SD 87, ¶ 7, 596 N.W.2d 347, 349. In such an appeal, “the circuit court should determine anew the question ... independent of the county commissioner’s decision.” In re Conditional Use Permit Denied to Meier, 2000 SD 80, ¶ 21, 613 N.W.2d 523, 529 (quoting Sioux Valley Hosp. v. Jones County, 309 N.W.2d 835, 837 (S.D.1981)). While the circuit court’s review of the agency decision is de novo, we have cautioned the courts to “not sit as a one man Board of Adjustment.” See In re Conditional Use Permit Denied to Meier, 2000 SD 80 at ¶ 22, 613 N.W.2d at 529. Rather, the circuit court must determine whether the county commission’s decision was “arbitrary or capricious,” in which case the court “should reverse the decision and remand to the Board for further proceedings.” Id. Conversely, if the court finds no evidence that the county commission made its decision with “personal, selfish or fraudulent motives, or false information,” the circuit court must affirm the commission’s decision. Coyote Flats, 1999 SD 87 at ¶ 16, 596 N.W.2d at 351-52.

[¶ 8.] Likewise, “[t]his Court is not warranted in directing the manner in which the Commission should exercise its legal discretion.” Id. at ¶ 42. In our review of the county commission’s decision after an appeal to the circuit court, “we apply the clearly erroneous standard to factual findings, but accord no deference to the legal conclusions of the circuit court.” Id. at ¶ 7 (citing Gregoire v. Iverson, 1996 SD 77, ¶ 14, 551 N.W.2d 568, 570) (additional citations omitted).

ANALYSIS AND DECISION

[¶ 9.] 1. Whether Developer’s PUD application is defective for failing to state the maximum number of home sites planned for development.

[¶ 10.] Harlan alleges that Developer did not comply with the requirements of the Lawrence County Zoning Ordinances when it submitted its original application for a PUD, thereby making the whole application defective. Lawrence County Zoning Ordinance 4.10.4 provides, in pertinent part:

Administrative Procedure for a Planned Residential Development, Subject to Subdivision Regulations: ... There shall have been filed with the Planning Commission [a] written application for approval, which application shall be accompanied with the following information:
A. The application must be accompanied by an overall development plan showing the use or uses, dimensions, and locations of proposed sites, and information, as may be necessary to determine the contemplated arrangement or use, which makes it desirable to apply regulations and requirements differing from those ordinarily applicable under this Ordinance. The applicant shall obtain written comments on the proposed development plan from the applicable Fire Department, the South Dakota State Board of Health, Utility Companies, and submit these with the application.

Therefore, the validity of Developer’s PUD application depends upon its compliance with this provision.

[¶ 11.] The Commission maintains that this ordinance requires only a general master plan without specific details. As stated by the Office of Planning and Zoning Administrator, “[a]pproval of the PUD is approval of the concept and overall layout as submitted.” Indeed, the minutes of the June 17, 1992 County Commission meeting reflect a suggestion that, because only eight to eleven sites were being proposed, the original PUD should be scaled down. Developer responded by stating:

[T]he primary reason the PUD was so large was due to the fact [we] wanted to offer more than just a couple hundred acres for recreational uses and it was difficult at this point in time to find all the feasible sites and [we] would like the flexibility to choose homesites where they are the most compatible.

Developer was clear from the onset about the likelihood of future development within the PUD. The Commission reviewed and approved the application with full knowledge of Developer’s position. As explained above, we will not direct the manner in which the Lawrence County Commission should exercise its legal discretion.

[¶ 12.] The Commission and the circuit court found that Developer complied with the PUD ordinance by submitting a written application accompanied by an overall development plan showing: (1) the use or uses of the land; (2) the dimensions and locations of the proposed home/lot sites and other open spaces; and (3) written comments from the applicable Fire Department, the South Dakota Board of Health and the appropriate utility companies. Developer recorded its overall plan of development with the Lawrence County Register of Deeds Office. Developer presented the overall plan in two separate hearings before the Planning and Zoning Commission and the County Commission and Developer has not deviated from this overall plan. We do not see that the circuit court’s findings are clearly erroneous.

[¶ 13.] Furthermore, we do not read the ordinance to require maximum development as asserted by Harlan. There is nothing in the ordinance prohibiting the land apportionment per home site from being larger than the minimum forty acres. Developer’s PUD consisted of 2,873.79 acres. If this number is divided by the requisite minimum forty acres per home site, Developer would be allowed a maximum number of seventy-one sites in the PUD. If, however, developer chose to allot sixty acres per site, the maximum number of sites to fit in the PUD would be forty-seven. Clearly, under these specifications, seventy sites would not fit in a 2,873 acre PUD. It is illogical to require developers to plat sites they do not intend to develop.

[¶ 14.] We understand that buyers are concerned with knowing how the land surrounding their property will be developed. Buyers are entitled to rely upon representations made by a developer regarding the current and future development of the property. While this reliance is somewhat limited,

the marketing of PUDs ... often places major emphasis upon the availability of open spaces and recreational areas ‘built in’ the community. Therefore, the reasonable expectations of persons that the use of these areas will not be radically altered after they become residents of the PUD are relevant evidence when such an alteration is challenged.

Gray v. Trustees, Monclova Township, 38 Ohio St.2d 310, 313 N.E.2d 366, 369 (1974). See also Curtiss v. City of Cleveland, 166 Ohio St. 509, 144 N.E.2d 177 (1957) (noting one who acquires property in PUD has no contractual or constitutional right to have zoning remain forever unchanged). Developers should not be able to substantially alter plans already in existence, nor should they be able to develop the property in a piecemeal fashion that adversely affects prior purchasers.

[¶ 15.] In this case, however, Harlan was put on notice when he bought the land, by covenants in the warranty deed to his lot, that Developer reserved the right to designate up to as many as seventy home sites within the PUD. Developer has not attempted to rewrite the PUD application altogether. Instead, Developer has made only minor changes to a PUD master plan that clearly contemplated the likelihood that such changes would be made. Here, there is not a legally sufficient cause for complaint when Developer has only platted and developed the twenty-four approved sites. Additionally, the surrounding landowners’ interests are protected by the notice and public hearing required to amend a PUD. See Lawrence County Ordinance 4.10.1(B).

[¶ 16.] 2. Whether Lawrence County Ordinance Section 4.10 was impliedly repealed by the adoption of the 1998 Comprehensive Plan, thereby precluding amendment of a previously approved PUD.

[¶ 17.] Harlan contends that the adoption of the 1998 Comprehensive Plan, a plan that did not include a provision relating to PUDs, repealed Section 4.10 of the Lawrence County Zoning Ordinances. We disagree. Repeal by implication occurs when two statutes, or legislative enactments, clearly conflict with one another.

Where conflicting statutes appear, it is the responsibility of the court to give a reasonable construction to both, and to give effect, if possible, to all provisions under consideration, construing them together to make them harmonious and workable. Repeal by implication will be indulged only ivhere there is a manifest and total repugnancy. If, by any reasonable construction, both acts can be reconciled, they should be.

Karlen v. Janklow, 339 N.W.2d 322, 323 (S.D.1983) (internal citations omitted) (emphasis added).

[¶ 18.] There is no repeal by implication in this case. First, the Comprehensive Plan adopted by the Lawrence County Commission is not a legislative enactment. As stated by the circuit court, “[a] comprehensive plan is only a general guide for the legislative body. By definition it cannot bind the legislative body, as it is the ordinance that has the force of law and not the plan.” See Kenneth H. Young, 1 Anderson’s American Law of Zoning § 5.06 (4th ed 1996). Second, even if we assume for the sake of argument that the 1998 Comprehensive Plan was on par with a zoning ordinance, it does not conflict with Section 4.10. While the Comprehensive Plan does not specifically provide for PUDs, neither does it prohibit them. As recognized by the circuit court, this does not constitute “manifest and total repug-nancy.” See Karlen, 339 N.W.2d at 323. Lawrence County Zoning Ordinance Section 4.10 will continue in effect until it is specifically repealed or another ordinance is adopted to replace it. Therefore, we affirm the decisions of both the Lawrence County Commission and the circuit court in this case.

[¶ 19.] SABERS and KONENKAMP, Justices, and GORS, Acting Justice, concur.

[¶ 20.] AMUNDSON, Justice, deeming himself disqualified, did not participate.

      . While the acreage would allow for seventy-one sites (2873.79 h- 40 = 71.84), the covenants for the property reserved the right of Developer to plat up to seventy sites.

      . Harlan sites Rockway v. Stefani for the proposition that PUDs cannot be approved on the “master plan” basis with a possibility for future amendment. 23 Or.App. 639, 543 P.2d 1089, 1093 (1975). The ordinance in that case, however, was significantly more detailed than the ordinance at issue here and the developer conceded that it did not comply with its specifications. Id. at 1091.

      . Two other PUDs in Lawrence County have also been approved in this manner.

      . Presumably, Harlan would read Section 4.10.4(B) to require that every developer plat the maximum number of home sites allowable in every PUD and then require the developer to amend its application downward whenever it chose not to develop to maximum density.

      . In this case, part of Developer's amendment was to increase the size of the five unsold lots. This should be favorable towards Harlan’s position, as it indicates that the total number of possible sites would be lower than the seventy sites reserved in the covenants.


source: Caselaw Access Project

author: SABERS, Justice.

license: Public Domain

text:
    2002 SD 4
    Duane Anthony ICE, Petitioner and Appellant, v. Douglas WEBER, Warden of the South Dakota State Penitentiary, Respondent and Appellee.
    Nos. 21992, 21996.
    Supreme Court of South Dakota.
    Argued Nov. 14, 2001.
    Decided Jan. 2, 2002.

      Jeremiah J. Davis, Pennington County Public Defender’s Office, Rapid City, South Dakota, Attorney for petitioner and appellant.
    Mark Barnett, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent and appellee.
   SABERS, Justice.

[¶ 1.] Duane Ice (Ice) appeals the denial of habeas corpus relief based on ineffective assistance of counsel. The habeas court held that counsel’s performance was not deficient. We affirm.

FACTS

[¶ 2.] Ice, a Native American, was charged with aggravated assault stemming from an altercation with Scott Pooler (Pooler), a white male, on September 21, 1997. The altercation between the two men began as a fistfight and escalated into a more violent confrontation involving a knife. As a result of two stab wounds received during the fight, Pooler suffered a collapsed lung. In addition, a witness who attempted to break up the fight received a stab wound to his back. Ice obtained a Rapid City attorney to represent him. A jury trial was held May 26 — 29, 1998. On May 29, the jury convicted Ice of aggravated assault resulting in serious bodily injury.

[¶ 8.] During the voir dire stage of Ice’s trial, his counsel did not question the jury on issues of racial prejudice. Following the conclusion of voir dire, and during a recess in the proceedings, the bailiff overheard one of the prospective jurors make a racially motivated remark. The bailiff brought this remark to the court’s attention and the court allowed the prosecution and defense the opportunity to reopen voir dire. The prosecution questioned several of the prospective jurors about their beliefs concerning racial issues. He then posed a follow-up question to the entire pool on whether racial prejudice would affect their ability to be fair and impartial. Ice’s trial counsel then addressed the issue of racial prejudice with one of the prospective jurors originally questioned by the prosecution and she was removed for cause.

[¶ 4.] In its case-in-chief, the prosecution called Jerred Murner (Murner) as a witness. Murner was present during the altercation between Ice and his victim and attempted to break up the fight between the two men. Murner testified that he received a stab wound in the back during the altercation. Ice was not charged with assaulting Murner. During closing argument, the prosecution used Murner’s testimony about the altercation to bolster its argument that Ice assaulted Pooler. Ice’s counsel did not object to Murner’s testimony during trial, nor did he object to the prosecution’s closing argument.

[¶ 5.] Ice did not testify at trial. Throughout the course of trial preparation and the trial itself, Ice and his counsel discussed the benefits and detriments of Ice testifying. Ice wanted the opportunity to express his innocence to the jury, while his trial counsel believed it could be harmful for Ice to testify. Ultimately, a decision was reached that Ice would not testify-

[¶ 6.] At the conclusion of the three-day trial, the jury began its deliberations at about 4:55 p.m. After approximately six hours of deliberations, the foreperson of the jury sent a note to the trial court judge asking whether it could consider a lesser charge of simple assault. The jury’s request was denied. The foreperson then sent another note indicating that the jury reached a verdict of not guilty on the count of aggravated assault with a deadly weapon, but was deadlocked on the count of aggravated assault resulting in serious bodily injury. The trial court asked the jury to continue its deliberations and this request was agreed to by Ice’s trial counsel. Sometime after midnight, the jury returned a verdict of guilty on aggravated assault.

[¶ 7.] On June 2, 1998, Ice pleaded guilty to a charge of being an habitual offender. Ice was sentenced to serve nine to twelve years in the South Dakota penitentiary. On August 5, 1998, Ice appealed his conviction to this Court and we affirmed on April 13,1999. On February 14, 2001, Ice filed a petition for writ of habeas corpus which was denied April 10, 2001. On May 23, 2001, Ice filed a motion for issuance of a certificate of probable cause which was denied. On June 12, 2001, Justice Sabers issued a certificate of probable cause. Ice then filed a notice of appeal raising issues of ineffective assistance of counsel. The State responded with a notice of review on the basis that a single justice could not sign a certificate of probable cause.

STANDARD OF REVIEW

[¶ 8.] It is well settled that “[statutory interpretation presents a question of law reviewable de novo.” Zoss v. Schaefers, 1999 SD 105, ¶ 6, 598 N.W.2d 550, 552 (citing Satellite Cable Srvs. v. Northern Electric, 1998 SD 67, ¶ 5, 581 N.W.2d 478, 480).

[¶ 9.] When reviewing the decision of a habeas court, this Court has recognized:

Habeas corpus is not a substitute for direct review. Because habeas corpus is a collateral attack upon a final judgment, our scope of review is limited. On habeas review, the petitioner has the initial burden of proof. We review the habeas court’s factual findings under the clearly erroneous standard.

Sund v. Weber, 1998 SD 123, ¶ 12, 588 N.W.2d 223, 225 (citing Lodermeier v. Class, 1996 SD 134, ¶ 3, 555 N.W.2d 618, 621-22) (additional citations omitted).

[¶ 10.] This Court’s standard for reviewing claims of ineffective assistance of counsel is also well established.

Whether a defendant has received ineffective assistance of counsel is essentially a mixed question of law and fact. In the absence of a clearly erroneous determination by the circuit court, we must defer to its findings on such primary facts regarding what defense counsel did or did not do in preparation for trial and in his presentation of the defense at trial. This [Cjourt, however, may substitute its own judgment for that of the circuit court as to whether defense counsel’s actions or inactions constituted ineffective assistance of counsel.

Rodriguez v. Weber, 2000 SD 128, ¶ 28, 617 N.W.2d 132, 142 (citations omitted).

[¶ 11.] 1. WHETHER, AFTER A CIRCUIT COURT JUDGE HAS REFUSED TO ISSUE A CERTIFICATE OF PROBABLE CAUSE, A SINGLE SUPREME COURT JUSTICE IS AUTHORIZED UNDER SDCL 21-27-18.1 TO ISSUE A CERTIFICATE OF PROBABLE CAUSE.

[¶ 12.] The State contends that the issuance of a certificate of probable cause under SDCL 21-27-18.1 requires approval by a majority of this Court, and not a single justice. SDCL 21-27-18.1 provides, in relevant part:

A final judgment or order entered under this chapter may not be reviewed by the Supreme Court of this state on appeal unless the circuit judge who renders the judgment or a justice of the Supreme Court issues a certificate of probable cause that an appealable issue exists. A motion seeking issuance of a certifícate of probable cause shall be filed within thirty days from the date the final judgment or order is entered. The issuance or refusal to issue a certificate of probable cause is not appealable. However, a party may, upon the circuit court jvtdge’s refusal to issue a certificate of probable cause, file a separate motion for issuance of a certificate of probable cause with the Supreme Court within fifteen days of the entry of the circuit court judge’s refusal.

(emphasis added).

[¶ 13.] This statute was amended in 1989. Prior to the 1989 amendment, the fourth sentence stated that “a party ... may, upon a circuit judge’s refusal to issue a certificate of probable cause, file a separate motion for issuance of a certificate of probable cause with a justice of the Supreme Court ....” SDCL 21-27-18.1 (emphasis added). The statute currently provides that “a party may, upon the circuit court judge’s refusal to issue a certificate of probable cause, file a separate motion for issuance of a certificate of probable cause with the Supreme Court .... ” Id. (emphasis added). The State argues that the 1989 amendment removed from a single justice the authority to issue a certificate of probable cause.

[¶ 14.] Ice argues that the amendment from filing “with a justice of the Supreme Court” to filing “with the Supreme Court” was simply to cause the filing to be with the Clerk of the Supreme Court (in Pierre) rather than with the individual Justices throughout the state. We agree. The 1989 amendment refers only to the filing of a motion for a certificate of probable cause and not the issuance of the certificate. The first sentence regarding the issuance of the certificate of probable cause did not change. The 1989 amendment required that the motion for issuance of a certificate of probable cause be filed with the Supreme Court, rather than an individual justice. This change was made for administrative convenience. Accordingly, the amendment changed the person with whom the motion must be filed, not the person who has authority to issue the certificate.

[¶ 15.] 2. WHETHER ICE, A NATIVE AMERICAN, WAS DENIED EFFECTIVE ' ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL FAILED TO RAISE THE ISSUE OF RACIAL PREJUDICE DURING VOIR DIRE.

[¶ 16.] In reviewing ineffective assistance of counsel claims, this Court has adopted the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See Sund, 1998 SD 123 at ¶ 13, 588 N.W.2d at 225 (recognizing this Court’s adoption of the Strickland standard); Jones v. State, 353 N.W.2d 781 (S.D.1984) (adopting the two-pronged test of Strickland for analyzing claims of ineffective assistance of counsel). Ice must show “1) that counsel’s performance was deficient; and 2) that the deficient performance prejudiced the defense. The test for prejudice is whether there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Boykin v. Leapley, 471 N.W.2d 165, 167 (S.D.1991) (citation omitted). Furthermore, counsel is presumed competent, and that presumption must be overcome by applying the Strickland test. Ramos v. Weber, 2000 SD 111, ¶ 12, 616 N.W.2d 88, 92.

[¶ 17.] Ice asserts that his trial counsel was ineffective because he failed to voir dire prospective jurors regarding issues of racial prejudice. While the habeas court determined that “[trial counsel] should have voir dired the jury regarding any racial prejudices while it was [his] turn to voir dire the jury,” “[t]his error was properly erased by further voir dire” by the prosecution and the defense. While their racial prejudice inquiries were not extensive, both prosecution and defense counsel questioned the prospective jurors about racial issues. The prosecution followed up his initial inquiries with a question to the entire jury pool on whether racial prejudice would affect their ability to be fair and impartial. Ice’s trial counsel then addressed the issue of racial prejudice with one of the prospective jurors originally questioned by the prosecution and she was removed for cause.

[¶ 18.] “In the absence of a clearly erroneous determination by the circuit court, we must defer to its findings on such primary facts regarding what defense counsel did or did not do in preparation for trial and in his presentation of the defense at trial.” Sund, 1998 SD 123 at ¶ 14, 588 N.W.2d at 225 (quoting Loop v. Class, 1996 SD 107, ¶ 11, 554 N.W.2d 189, 191) (additional citations omitted). Ice has failed to establish that the trial court’s determination was clearly erroneous.

[¶ 19.] 3. WHETHER THE DECISION TO TESTIFY AT TRIAL WAS A DECISION MADE BY ICE AND HIS COUNSEL OR BY COUNSEL ALONE, THEREBY DENYING ICE EFFECTIVE ASSISTANCE OF COUNSEL.

[¶ 20.] Ice asserts that his counsel deprived him of the right to testify. Ice argues that, had he testified at trial as he had desired, it is probable that the outcome of the trial would have been different. During the habeas proceeding, however, Ice’s trial counsel testified that he and Ice discussed whether Ice would testify in his own behalf throughout the course of trial preparation and the trial itself. Ice’s counsel indicated that he and his client had weighed the pros and cons of Ice testifying and reached a mutual agreement that Ice would not testify.

[¶ 21.] The habeas court determined that “Mr. Ice not having testified was not a direct result of any coercion by Mr. Ice’s defense counsel [ ], but rather a mutual decision between Mr. Ice and [his trial counsel].” Ice has failed to make a showing sufficient to overcome his trial counsel’s testimony that his failure to testify at trial was a mutual agreement between attorney and client.

[¶ 22.] 4. WHETHER ICE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL FAILED TO OBJECT TO THE CONTINUATION OF JURY DELIBERATIONS LATE INTO THE EVENING.

[¶ 23.] Ice contends that he was denied effective assistance of counsel when his trial counsel agreed to the trial court’s decision to have the jury continue its deliberations rather than moving for a mistrial. Under Strickland, Ice must show that his counsel’s performance was so deficient as to result in prejudice. Rodriguez, 2000 SD 128 at ¶ 29, 617 N.W.2d at 142. Furthermore, trial strategy cannot be used as a basis for establishing constitutionally deficient assistance. Boykin, 471 N.W.2d at 168-69.

[¶ 24.] Ice and his trial counsel believed that the jury’s inability to reach a decision on aggravated assault was a positive sign in their favor and, as a matter of strategy, believed that the jury should be instructed to continue its deliberations. The habeas court determined that “it was not error for defense counsel not to request a mistrial after a note came back from the jury. The [habeas court] feels that it may have been [incompetence] to not send the note back to the jury and for the jury to continue their deliberations.” Ice has failed to make a sufficient showing to establish that the habeas court’s finding is clearly erroneous.

[¶ 25.] 5. WHETHER ICE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL FAILED TO OBJECT TO THE PROSECUTION’S CLOSING ARGUMENT.

[¶ 26.] Ice contends that he was denied effective assistance when his counsel did not object to the prosecution’s use of Jerred Murner’s testimony that Murner had been stabbed during the altercation in its closing argument. Ice contends that because he was not charged with assaulting Murner, this evidence was overly prejudicial.

[¶ 27.] During the habeas proceeding, Ice’s trial counsel testified that he did not believe that the prosecution’s use of Mur-ner’s testimony was objectionable. Rather, he believed that it aided in Ice’s defense because a witness for Ice claimed he did the stabbing. Again, it is strongly presumed that counsel’s performance is adequate and counsel’s trial strategy cannot later be used to form the basis of a claim of error. The habeas court concluded that “there was no 404(b) evidence improperly brought into this trial” and that “it was res gestae and [was] perfectly admissible evidence.” Ice has failed to make a showing sufficient to establish that the habeas court’s finding was clearly erroneous.

[¶ 28.] Ultimately, the habeas court determined that:

there is no evidence defense counsel was not functioning as counsel guaranteed by the Sixth Amendment, and that the defendant did not show that the deficient performance prejudiced the defense by showing the counsel’s errors were so serious as to deprive the defendant of a fair trial, the [e]ourt cannot find that in this case.

Ice has failed to show that the trial court’s findings of fact and conclusions of law are clearly erroneous and we affirm the denial of habeas corpus relief.

[¶ 29.] GILBERTSON, Chief Justice, and AMUNDSON and KONENKAMP, Justices, and, GORS, Acting Justice, concur.


author: CARTER, Justice.

text:
    STATE of Iowa, Appellee, v. Nathan John KOLBET, Appellant.
    No. 99-0046.
    Supreme Court of Iowa.
    Nov. 15, 2001.
    Rehearing Denied Feb. 7, 2002.

      Judith O’Donohoe of Elwood, O’Dono-hoe, O’Connor & Stochl, Charles City, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Richard Tekippe, County Attorney, and Peter Grady, Assistant Attorney General, for appellee.

       Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2001).

   CARTER, Justice.

Defendant, Nathan John Kolbet, appeals from convictions of homicide by vehicle in violation of Iowa Code section 707.6A(2)(a) (Supp.1997) and serious injury by vehicle in violation of Iowa Code section 707.6A(4). He contends that the State’s proof of speed, which was the essential evidence of the reckless-operation element of the offenses of which he was convicted was invalid on its face and that rebuttal evidence on the issue of speed was offered by the State in bad faith. After reviewing the record and considering the arguments presented, we reverse defendant’s convictions on both offenses and remand for a new trial on these charges.

Defendant, a twenty-year-old college student, resided with his parents in rural Ata Vista on October 5, 1997, the date of the motor vehicle mishap that produced the criminal charges which are at issue. On the day prior to the accident, he worked until 10:30 p.m. at a home providing care for mentally handicapped teens in Charles City. Upon getting off work, he went to visit a friend. The friend was having a party where beer was consumed by those present, including defendant. At 2 a.m. defendant drove a woman home from the party, had one more beer, and then drove seven miles home without incident. His mother awoke him at 7:30 a.m. on the following morning, which was a Sunday. He left for work at 8 a.m. and proceeded to drive west on county road B28. It was eighteen miles from his home to his workplace in Charles City. He was due at work at 8:30 a.m.

Ater driving 4.3 miles, defendant encountered a horse-drawn buggy on the county road and passed it. The buggy driver and his wife testified at the trial that they remembered the car passing them and thought it was going too fast, probably over the speed limit. Defendant proceeded west another two miles when he encountered another horse-drawn buggy, which was also traveling in a westerly direction. Athough defendant braked and steered to the right, his vehicle struck the right rear corner of the buggy, which at the time of the collision was slightly to the left of the centerline.

During the collision, defendant’s head was thrown against the windshield of his car. His skull was fractured and the hip-pocampal structure of his brain was injured. As a consequence of those injuries, he is unable to recall any details of the collision.

The occupants of the buggy were the Oberholtzer family, a husband and wife and their five children. On impact they were all thrown onto the road. The two adults were sufficiently injured that they were unable to recall any of the details of the accident. Three of the children were uninjured. The two youngest children, a seven year old and a baby, sitting immediately above the point of impact, were catapulted from the buggy and seriously injured. Katie Oberholtzer, age seven, later died of cerebral edema. The baby, Ruth Oberholtzer, who had been sitting on Katie’s lap, suffered a serious head injury.

The damaged buggy and the injured horse, which had been pulling it, remained on the roadway following the collision. The right rear wheel of defendant’s automobile went off the traveled portion of the highway on the north side of the road. The auto then changed directions, veered into the ditch on the south side of the roadway, passed through a fence into a farm field, and then traveled in a circular path back into the ditch on the south side of the road. The couple in the buggy that defendant had passed were the first witnesses on the scene. They testified that the engine on defendant’s auto was roaring when they arrived. The engine continued to run under power until a fire department rescue unit employee arrived about 8:40 and disconnected the battery cable.

One of two state troopers arriving on the scene about 8:30 shot and killed the horse, whose rear legs were both broken. One of the troopers testified that he discovered a punctured beer can in defendant’s auto, which had sprayed beer throughout the front seat near where the driver was seated. He also testified that he smelled alcohol on defendant’s breath. He administered a preliminary breath test and obtained a reading of .112. After defendant was taken to a hospital by ambulance, the trooper arrived there, completed the implied-eonsent procedure, and took a sample of defendant’s blood. The laboratory test results showed a blood alcohol reading of .110.

In investigating the accident, state trooper Bryan Shupe identified skid marks made by defendant’s auto prior to the collision and also identified postimpact yaw marks made while the car sideslipped toward the ditch following the collision. These yaw marks first revealed the location of one, then two, and ultimately all four tires as they traveled along the road for a distance of 170 feet from the point of impact. Trooper Shupe took measurements of the location of these marks and prepared a diagram showing where they were located with respect to the roadway, the ditch, and the point of collision.

At trial state trooper Dennis Gerdom, who had received special training in accident reconstruction, was allowed to testify over defendant’s objection concerning his calculation of the approximate speed of defendant’s vehicle prior to braking, based on markings that the tires left on the roadway. He based his conclusions on his application of certain mathematical formulas applied to the skid marks and yaw marks shown on trooper Shupe’s diagram. From the arcing pattern of the yaw marks, he calculated that defendant’s vehicle was traveling between sixty-two and sixty-nine miles per hour when the marks were laid down. That was the speed that would have produced the radius of the arc, given the weight of the vehicle and the coefficient of friction for the roadway. He combined that speed with the amount of deceleration that he was able to compute from the skid marks leading up to the point of impact. Based on this methodology, he concluded that immediately prior to braking defendant’s auto was traveling between seventy-one and eighty-two miles per hour.

Trooper Gerdom’s testimony made clear that he did not base his testimony on the skid marks alone, that the postimpact yaw marks were critical to his calculations, and that his calculations would only be accurate if defendant’s auto was not under power when the postimpact yaw marks were laid down on the roadway. This was also implicit in Shupe’s testimony. Both Gerdom and Shupe testified that, based on their observation of the yaw marks, they did not believe that they were laid down by a vehicle under power.

Michael Throndson, a certified master mechanic, testified on behalf of the defendant. He testified that he had examined defendant’s automobile following the collision and observed the severe damage in the engine compartment that forced the cruise control servo rearward, stretching and locking into place the cable controlling acceleration. Defendant’s vehicle had front-wheel drive, and Throndson testified that this would have kept the engine providing power to the front wheels until the ignition was turned off.

James Sobek, a licensed engineer and an accident reconstruction expert, testified that he examined defendant’s auto after the collision and that the cruise control mechanism had been forced into the position that Throndson had described. He further testified that, based on the damage to the buggy and the angle of impact, the collision with the buggy had caused the damage that occurred to the cruise control mechanism.

Sobek testified that Gerdom’s method of calculating the speed of defendant’s auto would only be accurate if the vehicle was not under power when the postcollision yaw marks were laid down. He testified that the photographs of the yaw marks revealed a substantial difference in appearance between the marks left by the front wheels and the marks left by the rear wheels. He attributed that difference to the fact that the front wheels were operating under power and the rear wheels were not.

Sobek testified that he had made computer calculations, which showed that the yaw marks shown on Shupe’s diagram (used by Gerdom for his calculations), could only have been laid down in that pattern if defendant’s auto was under power and accelerating from a departure speed at point of impact of forty to forty-five miles per hour. Finally, Sobek testified that his own calculation of the speed of defendant’s vehicle immediately prior to braking was fifty to fifty-four miles per hour, based on the skid marks and the calculated acceleration speed while the yaw marks were being laid down.

The State called sergeant Randall Bul-ver as a rebuttal witness. Bulver was a supervisor of technical accident investigation for the Iowa State Patrol. He testified that, for purposes of estimating speed from yaw marks by means of the formula trooper Gerdom had applied, the result would be the same irrespective of whether the vehicle was under power or free wheeling. He buttressed this conclusion by stating that it was revealed to him by research he had performed in materials published by the Northwestern University Traffic Research Institute.

Defendant called as a surrebuttal witness, Jerry Lee Hall, who held a doctorate in mechanical engineering. Hall testified that Bulver’s contentions that, if the wheels of the car were operating under power, Gerdom’s calculations would nevertheless be accurate was contrary to elementary laws of physics. He testified that, if the front wheels of the vehicle were operating under power, application of the mathematical formulas that Gerdom used to estimate speed would produce a “higher than accurate” speed.

The published materials on which Bulver purported to rely in his testimony were not available to Hall when he testified at trial. In connection with defendant’s motion for a new trial, Hall filed an affidavit in which he stated that he had reviewed those published materials, that they did not support Bulver’s assertions, and, in fact, expressly contradicted them. Copies of those portions of the materials published by the Northwestern University Traffic Research Institute that contradicted Bul-ver’s assertions were attached to the motion for a new trial. They state in part:

The equations presented ... for velocity estimates from side slip are derived with the assumption that no longitudinal acceleration ... was present during the yaw. This means that neither braking nor power was applied to the vehicle during the yaw....

The State made no effort in the district court to discredit Hall’s affidavit or the exhibits attached thereto. It similarly makes no effort to do so on appeal.

The information filed against defendant charged in the alternative the commission of the offense of homicide by vehicle caused by operating while intoxicated, a class “B” felony, in violation of subpara-graph (1) of Iowa Code section 707.6A and the offense of homicide by vehicle caused by driving in a reckless manner, a class “C” felony, in violation of subparagraph (2)(a) of that statute. He was also charged with serious injury by vehicle, a class “D” felony, in violation of subparagraph (4) of section 707.6A. The jury acquitted defendant of homicide by vehicle caused by driving while intoxicated, but convicted him on the other two charges. Other facts that are significant in deciding the appeal will be considered in our discussion of the legal issues presented.

I. The Speed Issues.

Defendant argues that the testimony offered by the State to show the speed at which he was driving was of absolutely no probative value because the yaw marks on which it was based were laid down while his vehicle was operating under power. He contends that no other credible evidence of his speed was presented except that of his own expert witness. He urges that, absent credible evidence of dangerously excessive speed, there was no evidence that would allow the jury to reasonably conclude that he was driving in a reckless manner.

In the alternative, defendant argues that, if there was a jury issue concerning whether the yaw marks were laid down while the vehicle was under power, he is entitled to a new trial because sergeant Bulver’s testimony negating the consequences of an adverse finding on this issue was false and misleading.

The issues thus framed do not pertain to the admission of expert testimony. They pertain to the sufficiency of the evidence to establish recklessness, the weight of the evidence for purposes of defendant’s motion for new trial, and the allegations of bad faith in presenting sergeant Bulver’s testimony.

In considering the sufficiency of the evidence to support a verdict, we must base our decision on all of the evidence in the record, not merely that which favors the State. State v. Conroy, 604 N.W.2d 636, 638 (Iowa 2000); State v. Kostman, 585 N.W.2d 209, 211 (Iowa 1998); State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980). That type of review poses problems for the State because it is undisputed that the engine on defendant’s auto was roaring when it came to rest in the ditch and remained so until the battery cable was disconnected. Two witnesses testified without contradiction that the engine cavity had been damaged in a manner causing the cruise control mechanism to be locked in position thus holding the engine under power. The obvious explanation for this damage to the cruise control mechanism was the collision with the buggy. When all of this evidence is considered, the State’s evidence of speed rests on a very speculative foundation.

In ruling on defendant’s motion for a new trial, the district court characterized the conflicting evidence as to the speed of defendant’s vehicle as a matter for the jury to resolve. Although an allegation that Bulver’s testimony was either perjurious or made with a reckless disregard for the truth was part of defendant’s motion for new trial, the court did not address that claim directly. In lieu of discussing the challenge to Bulver’s testimony, the court concluded:

There was additional evidence before the jury of defendant’s recklessness in the operation of the vehicle, so as to sustain the jury’s verdict. The court concludes defendant has not shown that any use of false testimony would, within a reasonable probability, have influenced the jury verdict. Other evidence in the record sustains the jury’s verdict.

Unlike the stricter standard of materiality applied to new-trial motions based on newly discovered evidence, a knowing use of false testimony requires that a conviction be reversed “if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342, 349-50 (1976); accord Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104, 108 (1972). This standard may be applied even if the prosecutor did not actually know the testimony was false but should have known. Agurs, 427 U.S. at 103, 96 S.Ct. at 2397, 49 L.Ed.2d at 349. In United States v. Tierney, 947 F.2d 854 (8th Cir.1991), the federal court extended this principle to the reckless or negligent use of false testimony. Tierney, 947 F.2d at 860-61.

In applying these principles to the present case, we are convinced that the State’s use of Bulver’s rebuttal testimony constituted a reckless disregard for the truth. Although the formulas that were used by trooper Gerdom to estimate speed are highly technical and complex, it is elementary that, if the speed of a vehicle prior to collision is to be estimated from the tire marks laid down as the vehicle slides to a stop after the collision, the forces propelling the vehicle when the tire markings are being laid down must be the same forces that existed prior to the collision. To suggest that the results would be the same irrespective of whether the vehicle was under power or was freewheeling is absurd because the spacing and duration of the markings laid down by the tires would almost certainly be different in each situation. Any lingering doubt as to the reckless use of Bulver’s testimony is dispelled when we consider his testimony that his conclusions were supported by materials published by the Northwestern University Traffic Research Institute. The State has made no effort to bolster the credibility of that statement in the face of evidence that it was not correct and has offered no explanation as to why this manifestly false claim was made.

We are convinced that there was a strong likelihood that Bulver’s false testimony could have affected the verdict. As we concluded in our prior discussion, the evidence that the vehicle remained under power following the collision was extremely convincing. The jury could very likely have so found. Such a finding would have completely eliminated the State’s claim that defendant was driving between seventy-one and eighty-two miles per hour prior to the collision.

We disagree with the district court’s conclusion that there was other evidence of recklessness that would likely have caused the jury to conclude that defendant was operating his vehicle in a reckless manner. Section 707.6A(2)(a) requires that the reckless driving be done with a willful or wanton disregard for the safety of others. The evidence relied upon by the district court to conclude that this could be shown in the absence of Gerdom’s speed testimony was that (1) defendant had been observed driving over the speed limit two miles back down the road, (2) defendant would have observed a “slow moving vehicle” sign on the rear of the buggy, (3) defendant did not have his vehicle under control, (4) he failed to reduce his speed when approaching the buggy, and (5) he had stated to others that he believed that he may have fallen asleep. Also, the district court believed that defendant’s blood alcohol concentration could be considered on the issue of recklessness.

Considering the district court’s conclusion concerning defendant’s blood-alcohol content, we do not believe that, in deciding what the jury would have done without Gerdom’s speed evidence, we can rely on the evidence of intoxication, which that same jury rejected in acquitting defendant of the charges under Iowa Code section 707.6A(1). As to the possibility that defendant fell asleep, we believe that, under the circumstances of this case, this would militate against a finding of willful and wanton disregard, rather than in support of such a finding. We are unable to conclude that the other factors relied on by the district court or any other evidence presented to the jury would permit it to find reckless operation in the absence of evidence of dangerously excessive speed. See State v. Sutton, 636 N.W.2d 107, 112-13 (Iowa 2001). Consequently, we believe there is a sufficient likelihood that Bulver’s testimony affected the verdict of the jury that the judgment of conviction should be reversed and a new trial granted.

II. Other Issues Involving the Validity of the Charges or Procedural Matters Arising During the Trial.

A. Motion for judgment of acquittal. Defendant urges that he was entitled to a directed verdict because the evidence of speed offered by the State was unreliable, and absent such evidence there was no basis to conclude that he was driving in a reckless manner. As noted in our prior discussion, we agree that absent evidence of grossly excessive speed there was no basis to conclude that defendant was driving in a reckless manner with a willful and wanton disregard for the safety of others. On the issue of speed, we conclude that the reliability of Gerdom’s speed estimates was a question for the jury because the jury was not bound to credit the testimony of defendant’s expert witnesses that the cause of the cruise control cable being locked into place was the collision with the buggy. Factual disputes concerning the foundational facts for the opinions of expert witnesses are matters for the jury to decide. Preferred Mktg. Assocs. Co. v. Hawkeye Nat’l Life Ins. Co., 452 N.W.2d 389, 393 (Iowa 1990); see also State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). If the jury believed officer Gerdom’s estimates of the speed of defendant’s vehicle, we believe that that factor coupled with the other elements involved in the collision would support a finding of willful and wanton disregard for the safety of others.

B. Noninclusive-title challenge to Iowa Code section 707.6A. Defendant lodged a noninclusive-title challenge to section 707.6A based on the provisions of article III, section 29 of the Iowa Constitution. That constitutional provision requires that the subject of an act must be expressed in the title. The provisions of section 707.6A pertaining to death resulting from operating while intoxicated are adequately described in the title of the bill. However, there is no mention in the title of the provisions pertaining to death caused by reckless operation of a motor vehicle.

We conclude that defendant’s constitutional challenge to the statute is untimely because the act in question was codified prior to the time that it was challenged in defendant’s criminal trial. Once a bill is codified, any constitutional defect relating to either the title requirement or the single-subject requirement of article III, section 29 is cured. State v. Mabry, 460 N.W.2d 472, 475 (Iowa 1990). In the present case, the statute was enacted in the spring of 1997 and became effective on July 1, 1997. The Code containing the amendment was released by the Code Editor on January 8, 1998. That was the date beyond which no constitutional challenge based on a noninclusive title could be lodged. See Iowa Dep’t of Transp. v. Iowa Dist. Ct., 586 N.W.2d 374, 377 (Iowa 1998). Defendant did not present the court with a challenge to the statute until April 17, 1998.

Defendant contends that he did not have standing to challenge the act until the criminal charges were brought against him. He argues that the constitutional challenge that he lodged to the statute on April 17, 1998, should relate back either to the date of the victims’ death and injury or the date on which criminal charges were filed (January 5, 1998). We are convinced that the language in Mabry, 460 N.W.2d at 475, requires that a constitutional challenge of this nature must actually be presented to the court prior to codification. This was also recognized in State v. Taylor, 557 N.W.2d 523, 526 (Iowa 1996). We recognize that this limitation means that the window of opportunity for challenging a statute on this ground is entirely fortuitous because persons are not motivated to challenge a statute until they are placed in a position in which the statute adversely affects them. Nevertheless, this is an inescapable conclusion of the Mabry doctrine.

C. Equal protection. Defendant asserts that section 707.6A violates equal protection of law under the Fourteenth Amendment to the Federal Constitution and article I, section 6 of the Iowa Constitution because it discriminates between perpetrators of different acts of homicide embraced within the statute. The Colorado Court of Appeals was asked to address substantially the same question in People v. Loeser, 981 P.2d 197 (Colo.Ct.App.1999). The Colorado court concluded that disparate penalties for homicide by vehicle caused by drunken driving and homicide by vehicle caused by reckless driving do not violate equal protection because a defendant in one situation is not similarly situated with a defendant in the other situation. Loeser, 981 P.2d at 198. The holding of the Colorado court is generally consistent with the views we expressed in State v. Ramirez, 597 N.W.2d 795, 798 (Iowa 1999) (generally if elements differ penalties may differ without violating equal protection). We find no merit in defendant’s equal protection challenge.

D. Due process. Defendant asserts that section 707.6A denied him due process of law because the statute does not require a specific criminal intent as an element of guilt. We reject this contention because it is based on an invalid assumption. Defendant was convicted of reckless operation of a motor vehicle. The statutory provisions that establish the crime specify “driving a motor vehicle in a reckless manner with willful or wanton disregard for the safety of persons or property.” Iowa Code § 707.6A(2)(a) (emphasis added). That definition is incorporated by reference in the offense involving serious injury by reckless operation. Iowa Code § 707.6A(4). The requirement of a willful or wanton disregard for the safety of others establishes a mens rea element that is essential to a finding of guilt.

Defendant also challenges the statute on due process grounds because it provides an inadequate definition of causation. We also reject that contention. With respect to the homicide-by-vehicle charge involving reckless operation, the statute expressly requires the State to prove that the defendant

unintentionally causes the death of another by any of the following means:
a. Driving a motor vehicle in a reckless manner with willful or wanton disregard for the safety of persons or property....

Iowa Code § 707.6A(2)(a) (emphasis added). These provisions are incorporated by reference in the statute creating the offense involving serious injury by reckless operation of a motor vehicle. Iowa Code § 707.6A(4). A cause-in-fact requirement is thus clearly spelled out as an element of these offenses.

E. Denial of defendant’s motion to suppress evidence and challenge to the manner in which the blood sample was handled. Defendant asserts error in the manner in which the implied-consent law was implemented and in the manner in which the blood sample was handled. In Division I of this opinion, we determined that in deciding what the jury in the present case would have done absent tainted evidence, we could not consider any evidence bearing on defendant’s intoxication, which the same jury rejected in acquitting him of the charge of vehicular homicide while intoxicated. We now further hold that, under the doctrine of collateral estop-pel and the evidentiary relevance consequences that flow from the application of that doctrine, another jury on retrial should be precluded from considering any such evidence in its determination of the charge of vehicular homicide by reckless driving. This renders it unnecessary to consider defendant’s challenges to this evidence during his first trial.

F. Excluding comment on the serious penalties imposed for conviction of the offenses charged. Defendant asserts that the district court erred in not allowing him to inform the jury of the serious penalties that befall a person who is convicted of the charges against him. The district court concluded that this knowledge was not relevant to the issue of guilt or innocence, which was the only issue for the jury’s consideration. We agree. The court was well within its discretion to keep such information from the jury.

G. Requiring defendant to submit a witness list prior to voir dire. Defendant contends that the district court erred in requiring him to submit a list of his witnesses to the prosecution for aid in voir dire. We agree that the court erred in imposing this requirement. Iowa Rule of Criminal Procedure 13 governs the State’s right to discovery in a criminal case, and nothing therein contained provides a basis for the State to demand production of a list of defendant’s witnesses.

H. Refusal to permit a view of the car and view of the crime scene. Defendant contends that the district court abused its discretion in not permitting the jury to view the car or the crime scene. We disagree. Whether or not to accede to defendant’s request was a matter falling within the broad discretion of the district court. See State v. Haines, 259 N.W.2d 806, 811 (Iowa 1977).

I. Whether restitution requirement of section 910.3B violates double jeopardy protections or constitutes an excessive fine. The arguments that defendant has made challenging Iowa Code section 910.3B on grounds of double jeopardy and an excessive fine have been completely answered in prior decisions of this court. See State v. Izzolena, 609 N.W.2d 541, 552-53 (Iowa 2000); State v. Klawonn, 609 N.W.2d 515, 519 (Iowa 2000). Those decisions require that we reject these contentions.

J. Personal bias of the judge. As a final matter, we consider defendant’s contention that the judge who presided at trial erred by not recusing herself at defendant’s request. That request came on the third day of the trial and was based on information that defendant had received indicating that the judge’s father had been killed in a collision with an intoxicated driver.

In response to defendant’s recusal motion, the judge acknowledged that her father had been killed in an automobile collision fourteen years prior to the trial. The driver of the other vehicle, who was also killed, had tested at more than .20 for blood alcohol concentration. The judge concluded that this circumstance would not influence her and that because she was not the trier of fact she deemed recusal to be unnecessary.

At the outset we note that our review of the record does not reveal any statements or actions on the part of the trial judge that in any way indicate the presence of bias toward this defendant. Nevertheless, recusal of a judge is required if “the judge’s impartiality might reasonably be questioned.” Iowa Code of Judicial Conduct, Canon 3D(1).

In interpreting Canon 3D, we have held that the considerations involved on a motion to recuse include assurances of objectivity, understanding of the concepts of the presumption of innocence and reasonable doubt, and recognition that the present defendant was not the one involved in the prior event. In addition, the length of time since the victimization, the similarity of the incidents, and the lack of acquaintance with the present victim are to be considered. State v. Mann, 512 N.W.2d 528, 533 (Iowa 1994). We have recognized the necessarily imprecise nature of these considerations. Id. at 532. Disqualification is committed to the sound discretion of the judge. State v. Smith, 242 N.W.2d 320, 323-24 (Iowa 1976). The burden of showing error for failure to re-cuse is on the party seeking recusal. Mann, 512 N.W.2d at 532; Smith, 242 N.W.2d at 324. Based on the circumstances presented, we are unable to conclude that an abuse of discretion occurred in the present case.

We have considered all arguments presented and conclude that for reasons discussed in Division I of this, opinion the judgment of the district court is reversed, and the case is remanded to that court for a new trial. The retrial shall be limited to the charges against defendant under Iowa Code section 707.6A(2)(a) and Iowa Code section 707.6A(4).

REVERSED AND REMANDED.

SNELL, S.J. participates in lieu of STREIT, J., who takes no part.

ORDER

(February 7, 2002)

Following the filing of our decision, the State filed a petition for rehearing. At our direction, defendant has filed a response to that petition.

The crux of the State’s petition is that our opinion was incorrect in finding Trooper Bulver’s testimony concerning the effect of engine power on the momentum calculations of yawing vehicles to be recklessly false. Materials are annexed to the petition for rehearing, which were not provided by the State in regard to defendant’s motion for new trial. These materials are additional pages from the Northwestern University Traffic Research Institute Manual referred to in our opinion. These pages of the manual describe experiments conducted with yawing vehicles that recorded slight deviations between velocity calculations from yaw marks from freewheeling vehicles and yaw marks from accelerating vehicles.

Had this information been provided as part of the district court record on the motion for new trial and had it been demonstrated that Trooper Bulver relied on these materials in giving his testimony, we doubtless would have softened our characterization of his testimony as being a reckless disregard for the truth. However, these experiments in no way corroborate the accuracy of the State’s evidence of speed. The manual expressly states that calculations of velocity from yaw marks should not be attempted when the yaw marks are laid down following a collision. This is apparent from a reading of the manual and should have negated the witness and the prosecution from offering the challenged testimony. The petition for rehearing is denied. Ternus, J., takes no part.

      . When an original acquittal must have turned on a finding that the defendant had not done a particular act, his commission of that act may not be relitigated in another criminal trial. Ashe v. Swenson, 397 U.S. 436, 443-44, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469, 475-76 (1970); see also Chester James Antheau & William J. Rich, Modern Constitutional Law § 40.51, at 638 (1997) (doctrine applies if there is strong evidence that the particular issue was resolved in a prior trial).
      In the present case, the defendant was acquitted of the crime in which one of the elements was operating under the influence of alcohol. The jury was instructed the defendant would be driving in that manner if his ability to drive was impaired in any manner by the consumption of alcohol. The acquittal of defendant on this charge must have resulted from the jury finding that defendant was not so impaired.


author: TERNUS, Justice.

text:
    EQUITY CONTROL ASSOCIATES, LTD., Appellant, v. David ROOT, Rita Root and D & R Farms, Inc., Appellees.
    No. 99-1459.
    Supreme Court of Iowa.
    Dec. 19, 2001.
    Rehearing Denied Feb. 6, 2002.

      Michael G. Byrne of Winston & Byrne, P.C., Mason City, for appellant.
    Christopher C. Foy of Leslie, Collins & Foy, Waverly, for appellees.
   TERNUS, Justice.

This case provides our court with its first opportunity to interpret and apply the Iowa Loan Brokers Act, Iowa Code chapter 535C (1995). The district court held that the appellant, Equity Control Associates, Ltd., charged an advance fee to the appellees, David and Rita Root, when it contracted with them to assist in obtaining financing for their turkey operation. Because such a fee is prohibited by Iowa Code section 535C.2A, the court rejected Equity Control’s claim to recover its contractual fees and awarded the Roots statutory penalties and attorney fees. Equity Control appealed and we affirm.

I. Background Facts and Proceedings.

David and Rita Root are husband and wife and have been engaged in farming for many years in Bremer County, Iowa. At the time of the events giving rise to this lawsuit they operated a turkey farming operation through a corporation they formed in 1981, Tripoli Ag Center, Inc.

In 1992 Tripoli Ag began to experience financial difficulties. By 1996 the corporation had long-term indebtedness in excess of $840,000 and short-term debt of roughly $150,000. Most of the long-term debt was in the form of loans from or guaranteed by the Small Business Administration (SBA). The remaining indebtedness was owed to local banks.

With the assistance of their attorney the Roots were able to negotiate a compromise of their delinquent debts with the SBA. The SBA offered to accept a lump-sum payment of $287,000 in full payment of Tripoli Ag’s indebtedness to the SBA, provided payment was made by October 29, 1996. This compromise gave the Roots ninety days to obtain the necessary funds.

David’s mother agreed to loan the couple $120,000, but by the middle of September, the Roots had not secured a commitment from another lender for the balance of the required funds. Only one bank, Security State Bank of Waverly, had even shown any interest in making a loan, but it was dragging its feet in making a decision on the Roots’ application. With the deadline rapidly approaching, the Roots had little hope that they would obtain the funds necessary to prevent the SBA from foreclosing on Tripoli Ag’s assets, as well as the Roots’ personal assets that also secured the loans.

It was about this time that a turkey feed supplier told the Roots about Equity Control Associates, Ltd. and its president, Gerald Murphy. The Roots were told that Murphy had been able to get loans for other troubled turkey farmers.

Equity Control Associates, Ltd. is a professional services corporation in Clear Lake, Iowa, managed by its president, Gerald Murphy. Murphy described his occupation as a professional business planner. He also performed accounting work, but was not a certified public accountant. He was, however, a certified financial planner, a certification he had obtained through home study. Although Murphy had experience in farm loan restructuring and reorganization, he testified his primary business was “business planning with business acquisitions, mergers, startups, [and] consulting for banks.”

Rita Root contacted Murphy by phone on September 14, 1996. She provided Murphy with background information concerning the Roots’ financial situation and informed him of the approaching deadline. Murphy said he would do some “research” on their business and the turkey industry to decide whether to accept their case. Murphy then talked to the Roots’ feed supplier and with a representative of a turkey meat processor. Upon learning that the turkey meat processor was willing to consider a three-year contract with Tripoli Ag, Murphy thought the business might become profitable, so he agreed to help the Roots.

Approximately two weeks before the SBA deadline, the Roots met with Murphy. They provided him with financial information concerning their turkey operation such as tax returns and cash flow data and projections. They also executed a “Compensation and Authorization Agreement” presented to them by Murphy. In pertinent part, the contract stated:

3. Duties of EQUITY
In consideration for the compensation paid by Client as set forth in this contract, EQUITY agrees to perform the following duties:
(I.) Business Planning and establishing Business Structures; Tax Planning; Debt Restructuring Strategy; and writing and formulating applications for financing and capital, or any other hourly type of work required by the Client.
(II.) To act as an agent for Client in the procurement of monies, including, but not limited to, operating loans, capital financing and private investment placements for long term financing to purchase, obtain, or get control of turkey facilities (buildings) and related real estate; moving existing debt from one lender to another; locating another lender to pay off existing real estate mortgages or contracts; the purchase of real estate; lines of credit for daily cash flow needs and/or working capital.
(IV.) To act as an agent for Client in restructuring the following debt of Client. Restructuring the debt of Client shall mean moving debt from one lender to another lender, private or lending institution; changing the terms of indebtedness at an existing creditor; debt “write-down” meaning debt write-off, partially or in total, by any Federal Government Agency i.e. SBA, Bank or any other lending institution. Restructuring shall also include debt write-off from or by any creditor.

According to the contract, Equity Control was to be compensated at the rate of $60 per hour for the services set forth in paragraph 3(1) and was to be reimbursed for its expenses. In addition, the Roots were required to pay a retainer of $1000, to “be deposited in a Client Trust Account,” from which payment for monthly charges for fees and expenses would be drawn. In consideration of the services set forth in paragraph 3(11), Equity Control was to be paid 2% of the amount of any loan obtained. Lastly, the Roots were required to pay Equity Control 2½% of any write-down. The contract stated that each percentage fee was “separate and in addition to any fees set forth in this contract for services provided” under other paragraphs of the agreement. The Roots paid the $1000 retainer and Equity Control deposited these funds into its general account, not its trust account.

In the days immediately following this meeting Murphy attempted to persuade Security State Bank to make a loan to the Roots. He reworked the financial figures and prepared a twenty-page document entitled “Loan Request.” This document, according to Murphy, was designed to fill in the gaps and correct the problems in the underlying financial information previously submitted by the Roots in support of their loan application. During this time, Murphy also advised the Roots to use the $120,000 from David’s mother to form and capitalize a new corporation.

On October 15, Security State Bank turned down the Roots’ loan application. Murphy then contacted American Savings Bank of Tripoli, which held some of Tripoli Ag’s short-term and long-term debt. There is considerable dispute in the record concerning the negotiations with American Savings. Murphy contends he contacted Les Johnson of American Savings and informed him of Murphy’s concept of a new corporation and the potential capital infusion from David’s mother. Johnson testified he learned of the funds available from David’s mother at a meeting with the Roots on October 16. Johnson contended that he had no negotiations with Murphy, but conceded that he did look at the figures presented by Equity Control. In any event, on October 16, 1996, American Savings agreed to provide the loan necessary to meet the SBA’s demands, as well as a line of credit. On October 28, 1996, one day before the SBA deadline, the loan was closed. Murphy attended the loan closing and thereafter provided no further services to the Roots.

On October 31, 1996, Equity Control sent the Roots an itemized statement for $14,320.81 ($15,320.81 minus the $1000 retainer). The bill covered services from October 1 through October 28, 1996. Of the total amount, $4,175.81 represented the itemized charges for Murphy’s hourly services and expenses, and the balance was calculated using the percentages from the contract applied to the SBA write-down, the new loan and the line of credit. The Roots refused to pay the bill.

Equity Control then filed this lawsuit seeking payment of its charges and attorney fees incurred in collecting its bill. The Roots filed a counterclaim contending that the compensation agreement constituted a “loan brokerage agreement” as that term is used and defined in Iowa Code chapter 535C. See Iowa Code § 535C.2(5). The defendants further contended that the plaintiffs solicitation and acceptance of an advance fee was prohibited by chapter 535C and entitled them to statutory remedies. See id. §§ 535C.2A, .10(l)(e). The defendants sought to recover the $1000 retainer, plus a penalty of twice the amount sought by Equity Control in its petition, as well as attorney fees.

The case was tried to the court. The district court found that the compensation agreement executed by the parties was a “loan brokerage agreement” under chapter 535C and that Equity Control, acting through Murphy, was a “loan broker” as defined in that chapter. The court held that solicitation and acceptance of the retainer violated chapter 535C’s prohibition against advance fees. See id. § 535C.10. Based on its findings of fact and conclusions of law, the court entered judgment against Equity Control on its petition. The court also granted damages on the Roots’ counterclaim, awarding a statutory penalty in the amount of twice the compensation sought by Equity Control, or $30,641.62. See id. § 535C.10(1). In a subsequent ruling, the district court entered judgment against Equity Control for the Roots’ attorney fees in the amount of $6000.

Equity Control appealed. It raises three claims: (1) the district court erred in ruling that chapter 535C applied to the services rendered by the plaintiff under paragraph 3(1) of the contract; (2) the district court incorrectly construed the compensation agreement as a single indivisible contract; and (3) the trial court erred in failing to offset the attorney fee award by the equitable benefit received by the defendants. The plaintiff makes no challenge to the amount of the penalty imposed.

II. Scope of Review.

Because this contract case was brought and tried as a law action, our review is for correction of errors of law. See Land O’Lakes, Inc. v. Hanig, 610 N.W.2d 518, 522 (Iowa 2000); Howard v. Schildberg Constr. Co., 528 N.W.2d 550, 552 (Iowa 1995). Where, as here, the case is tried to the court, “[t]he trial court’s findings of fact have the effect of a special verdict and are binding if supported by substantial evidence.” Land O’Lakes, 610 N.W.2d at 522. We view the evidence in a light most favorable to the trial court’s ruling. See id. Moreover, the trial court’s findings are construed broadly and liberally in favor of the judgment. See Papenheim v. Lovell, 530 N.W.2d 668, 671 (Iowa 1995).

This court is not bound by the district court’s legal conclusions. See Land O’Lakes, 610 N.W.2d at 522. Thus, if the court’s decision was materially affected by its application of an erroneous rule of law, we must reverse. See id.

We review a challenge to the court’s award of attorney fees for an abuse of discretion. See Vaughan v. Must, Inc., 542 N.W.2d 533, 541 (Iowa 1996).

III. Did the Trial Court Err in Concluding that the Contract Violated Chapter SS5C?

A. Applicable law. Chapter 535C governs loan brokers and loan brokerage agreements. The statute defines a “loan broker,” in part, as “a person who promises to ... assist in obtaining a loan for another from a third person.” Iowa Code § 535C.2(4). Similarly, a “loan brokerage agreement” is “an agreement between a loan broker and a borrower in which the loan broker promises to ... [a]ssist the borrower in obtaining a loan.” Id. § 535C.2(5)(6). A “borrower” is defined as “a person who seeks the services of a loan broker.” Id. § 535C.2(2). Pertinent to the dispute here, the statute prohibits a loan broker from directly or indirectly soliciting, receiving, or accepting from a borrower “an advance fee as consideration for providing services as a loan broker.” Id. § 535C.2A. An “advance fee” is defined as “consideration of any type, including a payment ..., which is assessed or collected prior to the closing of a loan.” Id. § 535C.2(1).

The statute provides remedies to the borrower for violations of a loan brokerage agreement:

If a broker materially violates the loan brokerage agreement, the borrower may, upon written notice, void the agreement. In addition, the borrower may recover all moneys paid the broker, a penalty of twice the amount of the fee sought by the broker, other damages, and reasonable attorney’s fees.

Id. § 535C.10(1). The statute gives a noninclusive list of what constitutes a material violation. See id. This list includes “[s]ol-iciting or obtaining, directly or indirectly, an advance fee.” Id. § 535C.10(l)(e).

Equity Control concedes that its activities undertaken pursuant to paragraph 3(11) of the compensation agreement consisted of assisting borrowers — the Roots— in obtaining a loan from a third party, thus causing the plaintiff to fall within the statutory definition of “loan broker” for purposes of that portion of the agreement. Equity Control argues, however, that its services as described in paragraph 3(1) and paragraph 3(IV) constituted business planning and debt restructuring, respectively, and did not include giving assistance to the Roots in obtaining a loan so as to cause the plaintiff to come within the statutory definition of “loan broker.” Because the retainer was specified in the contract to be payment toward Equity Control’s services under paragraph 3(1) and because Equity Control, according to the plaintiff, was not acting as a loan broker in performing these services, the retainer, argues the plaintiff, was not an advance fee within the scope of section 535C.2(1). The Roots asserted and the trial court held that the compensation agreement was not divisible and, therefore, Equity Control acted as a loan broker for purposes of the entire contract. We now address that issue.

B. Separability of compensation agreement. Whether a contract is indivisible and entire or divisible and sev-erable is a question of fact. See Kel-Keef Enters., Inc. v. Quality Components Corp., 316 Ill.App.3d 998, 250 Ill.Dec. 308, 738 N.E.2d 524, 538 (2000); accord 17A Am.Jur.2d § 414, at 441 (1991). “As a general rale, ... a contract constitutes a single agreement when, by its terms, nature, and purpose, it contemplates that each and all of its parts and the consideration stated shall be common each to the other and interdependent.” In re Estate of Claussen, 482 N.W.2d 381, 383 (Iowa 1992) (emphasis added) (citing Pac. Timber Co. v. Iowa Windmill & Pump Co., 135 Iowa 308, 310, 112 N.W. 771, 771 (1907)). In contrast, a divisible or separable contract “is one where the performance is divided into different groups, each set embracing performances which are the agreed exchange for each other.” 17A Am.Jur.2d § 414, at 440. It “differs from [entire] contracts, ordinarily, in one respect only— that on performance by one side of each of its successive divisions the other party becomes liable for his performance of that division.” Id.

Although there are several tests that have been used by courts to determine whether a contract is entire or sever-able, see id. § 415, at 441, we have held that the resolution of this question depends on the parties’ intent. See In re Estate of Claussen, 482 N.W.2d at 383; Pac. Timber Co., 135 Iowa at 310, 112 N.W. at 771; accord 17A Am.Jur.2d § 415, at 441, § 417, at 442^3. The intent of the parties is determined “from the language the parties have used and the subject matter of the contract.” In re Estate of Claussen, 482 N.W.2d at 383. In addition, the circumstances surrounding the execution of a contract may also reflect the parties’ intent. See Walsh v. Nelson, 622 N.W.2d 499, 503 (Iowa 2001); 17A Am.Jur.2d § 415, at 441.

We think there was substantial evidence to support the trial court’s finding that the parties intended the contract to be entire, that is, that the services and the compensation for them were interdependent, not separable. It cannot be disputed that the Roots’ sole objective in contracting for Equity Control’s services was to obtain assistance in securing a loan. Moreover, although Equity Control argues the Roots needed and Murphy supplied financial planning services, the evidence shows that all activities performed by Murphy were geared toward the objective of obtaining a loan for the Roots. In fact, the itemized bill representing the services performed by Murphy pursuant to paragraph 3(1) of the contract, which he characterizes as only business planning, includes approximately forty-four hours, out of a total of 52.75 hours, directly related to obtaining a loan for the Roots, including the time Murphy spent at the loan closing! Thus, Equity Control’s own billing statement belies any intent to compartmentalize its services.

Equity Control argues that the district court’s finding ignores the plain language of the contract, which separated the services provided by the plaintiff and attributed a specific payment to each set of services. The contract language must, however, be considered in light of the surrounding circumstances, “regardless of whether the language is ambiguous.” Walsh, 622 N.W.2d at 503. Thus, “while the severable nature of the subject [of a contract] may often assist in determining intention, it will not overcome the intent to make an entire contract when that is shown. Ultimately, the entirety of a contract depends upon the intention of the parties, and not upon the divisibility of the subject or the number of distinct subjects.” 17A Am.Jur.2d § 419, at 444-45.

The record shows the Roots wanted Equity Control to help them find a loan, pure and simple. As Mrs. Root testified, they did not “need any financial planning. [They] needed cash.” Equity Control agreed to render various services to assist the Roots in obtaining the necessary cash to preserve their turkey operation. The interdependence of the services to be rendered under the contract is highlighted by Mrs. Root’s testimony that Equity Control would not agree to assist them unless that portion of the agreement giving the plaintiff a percentage of the write-down was included in the contract. Similarly, given Mrs. Root’s testimony, one could reasonably infer that the Roots would not have signed the compensation agreement had it not included Equity Control’s promise to assist them in obtaining a loan. Given the circumstances surrounding execution of the agreement, the plaintiffs drafting of the contract to allocate specific consideration to specific services does not obviate the parties’ intent that their agreement was not divisible. Therefore, we find no error in the trial court’s ruling that the contract was entire, and not separable.

C. Loan broker. Having determined that the compensation agreement was not divisible and that the intent of the parties was to have Equity Control assist the Roots in obtaining a loan, it necessarily follows that the compensation agreement was a “loan brokerage agreement” within the meaning of chapter 535C. As stated above, Iowa Code section 535C.2(5)(6) defines a “loan brokerage agreement” as “an agreement between a loan broker and a borrower in which the loan broker promises to ... [a]ssist the borrower in obtaining a loan.” As the plaintiff concedes, its agreement with the Roots included a promise to assist them in obtaining a loan. Therefore, the entire contract, being inseparable, was subject to chapter 635C.

The plaintiff contends, however, that it falls within an exclusion to the definition of “loan broker” for “[a]n accounting practitioner, while engaged as an accounting practitioner, who procures loans as an incidental part of the accountant’s practice.” Iowa Code § 535C.2(4)(c). The burden of proof rested on Equity Control to show that it was excluded from the definition of “loan broker.” See id. § 535C.11A. The trial court concluded that the plaintiff had not met its burden.

Although it was undisputed that Equity Control performed accounting services under the compensation agreement, the trial court correctly noted that the key to the applicability of the exclusion is whether Equity Control procured the loan as an “incidental part” of its accounting practice. The trial court found that loan procurement was not an incidental part of Equity Control’s business and there was substantial evidence to support this finding. As the court noted, Equity Control itself described its business as including, among other things, “debt restructuring”' and “procurement of capital debt.” Moreover, the record showed that, in the past, Equity Control had assisted other borrowers who needed loans. In addition, as our previous discussion of the nature of Murphy’s activities in this matter shows, he was not “engaged as an accounting practitioner” at the time in question, as required by section 535C.2(4)(c); he was engaged to assist the Roots in obtaining a loan.

We hold, therefore, that the trial court did not err in holding the accounting exclusion in the loan broker definition did not apply. Accordingly, there was also no error in the district court’s finding that Equity Control was a “loan broker” within the meaning of chapter 535C and that the compensation agreement between the parties constituted a “loan brokerage agreement” within the terms of that statute. The only remaining issue is whether the court erred in ruling that the retainer constituted an “advance fee” entitling the defendants to the remedies of section 635C.10(1).

D. Advance fee. As noted earlier, an “advance fee” includes any payment that is collected prior to closing a loan. See id. § 535C.2(1). The retainer paid by the Roots was collected prior to the loan closing and therefore, there is substantial evidence to support the trial court’s finding that the retainer was an advance fee under chapter 535C. Section 535C.10(1) unequivocally provides that the collection of an advance fee is a material violation of a loan brokerage agreement and therefore entitles the borrower to statutory remedies. Accordingly, there was no error in the trial court’s conclusion that Equity Control was liable under chapter 535C.

Before we address the issue of attorney fees, we consider one final concern raised by Equity Control. The plaintiff argues that an application of the statute to the financial services rendered here will result in the inclusion within chapter 535C of any activity that may ultimately prove useful to a person in obtaining a loan. We think, however, that this fear is based on a misunderstanding of the decision made in this case. The trial court did not rule, nor do we hold, that mere financial planning subsequently used by the client to obtain financing renders the financial planner a loan broker. The result in this case rests on the totality of the services furnished by Equity Control under the compensation agreement and the indivisibility of those services based on the parties’ intent. Consequently, whether an agreement to perform financial planning in isolation would constitute a promise to assist in obtaining a loan for another within the meaning of section 535C.2(4) is not an issue in this ease.

IV. Did the District Court Abuse its Discretion in Awarding Attorney Fees?

The Roots sought attorney fees and expenses of $8532. The district court awarded $6000 in attorney fees, or roughly seventy percent of the amount requested. The court reasoned that the disallowed fees were attributable to work on the case performed prior to the filing of the defendants’ counterclaim seeking remedies under chapter 535C and to work performed in defense of the plaintiffs contract claims.

As noted earlier, the amount of an attorney fee award is reviewed for an abuse of discretion. See Vaughan, 542 N.W.2d at 541. A court abuses its discretion when the grounds or reasons for the court’s decision are “clearly untenable” or when the court has exercised its discretion to an extent that is “clearly unreasonable.” Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000). “A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law.” Id.

Equity Control has two complaints about the attorney fee award. First, it argues there was not sufficient detail in the evidence to allow the court to apportion the attorney fees between those that were recoverable under chapter 535C and those that were not. As a result, contends the plaintiff, fees were allowed that represented efforts to defend against the plaintiffs claim as opposed to fees incurred in asserting the defendants’ rights under chapter 535C. Second, Equity Control claims that the district court should have allowed it an offset for the value of the services it rendered to the Roots. We address each argument separately.

With respect to the evidentiary support for the court’s decision, we note that the defendants’ attorney supported his application for attorney fees with a detailed accounting of the time spent and a description of the work performed on each date. We also point out that “[t]he district court is an expert on the issue of reasonable attorney fees.” Schaffer v. Frank Moyer Constr. Inc., 628 N.W.2d 11, 24 (Iowa 2001). As this court observed in Schaffer, the district court is in a unique position of having observed the efforts of counsel during the trial and post-trial proceedings. Id. Thus, the trial court has the ability to assess the services rendered and their relationship to the various matters at issue. See id. We think, therefore, that the itemized statement of attorney fees, combined with the district court’s expertise and knowledge of this case, provided ample support for the trial court’s decision to award $6000 in attorney fees.

Although Equity Control complains that fees unrelated to the defendants’ counterclaim were allowed, it has pointed to no specific portion of the fee award that represents services that were not recoverable under chapter 535C. Furthermore, we find no merit in the plaintiffs criticism of the trial court for failing to give sufficient explanation for its determination that the services rendered were reasonable. A district court is not required to state the precise basis of its award. See Bremicker v. MCI Telecomm. Corp., 420 N.W.2d 427, 429 (Iowa 1988). Thus, the trial court was not obligated to separately address each entry on the attorney’s fee statement and explain why it was allowed or not allowed. We conclude, therefore, that the district court did not abuse its discretion in determining the amount of attorney fees allowed in this case.

As a final matter, we consider the plaintiffs argument that the attorney fee award should have been offset by an amount representing the value of Equity Control’s services to the defendants. We reject this contention. First of all, the statute makes no provision for an equitable offset with respect to attorney fees. Moreover, the allowance of an offset appears to be contrary to the statutory remedies that permit a borrower to void the agreement and “recover all moneys paid the broker.” Iowa Code § 5350.10(1). In addition, the plaintiff has cited no authority that a statutory award of attorney fees is, as a general proposition, subject to an equitable offset. Lacking any general authority for an offset and lacking any specific statutory authorization for one, the trial court correctly declined the plaintiffs request that the attorney fee award be reduced.

V. Summary and Disposition.

We find no error in the trial court’s ruling that Equity Control acted as a loan broker in performing services under its contract with the Roots. The evidence supports the trial court’s finding that the parties intended an indivisible contract. We also find no abuse of discretion in the district court’s award of attorney fees. The record supports the reasonableness of the amount awarded and there is no authority for allowing an equitable offset for the value of the services rendered by the plaintiff to the defendants. The judgment of the district court is affirmed.

AFFIRMED.

      . The agreement submitted by Equity Control to the Roots was a form contract. The services outlined in paragraph 3(111) of the form were not utilized by the Roots and therefore are not at issue in this case.

      . In addition to the Roots, Equity Control sued the appellee, D & R Farms, Inc. This corporation was formed by the Roots, as recommended by Murphy, to purchase the assets of Tripoli Ag. The new loan monies and line of credit were extended to D & R Farms, which then used the loan proceeds for the purchase of Tripoli Ag's assets. Tripoli Ag, in turn, used the sale proceeds to satisfy its indebtedness to the SBA. Although D & R Farms was not a party to the compensation agreement, it was made a party to Equity Control’s lawsuit. Thus, all references to the defendants in this opinion include D & R Farms.

      . Even if Equity Control had deposited these funds in its trust account as it was contractually bound to do, the payment still would have been an advance fee because it was paid prior to closing a loan.

      . Equity Control also argues in its brief that a contractor who makes repairs to a home that ultimately assist a borrower in obtaining a loan secured by the home would be subject to chapter 535C under the district court’s interpretation of the statute in this case. The plaintiff ignores, however, the requirement that a 'Toan broker” is one who ''promises to ... assist in obtaining a loan for another.” Iowa Code § 535C.2(4) (emphasis added). We doubt that the typical contractual relationship between a property owner and a contractor includes a promise that the contractor will assist the homeowner in obtaining financing. In sum, the plaintiff’s anticipation that the scope of chapter 535C will, in the future, be unbridled is simply unfounded.