author: WIGGINS, Justice.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Thomas J. McCANN, Respondent.
    No. 05-1643.
    Supreme Court of Iowa.
    March 31, 2006.

      Charles L. Harrington and Teresa A. Yens, Des Moines, for complainant.
    Roger J. Kuhle, West Des Moines, for respondent.
   WIGGINS, Justice.

The Iowa Supreme Court Attorney Disciplinary Board (Board) filed a complaint alleging Thomas J. McCann violated numerous rules of the Iowa Code of Professional Responsibility for Lawyers in handling six different legal matters. The Grievance Commission (Commission) found the Board had proved the allegations of the complaint and recommended we suspend McCann’s license to practice law indefinitely with no possibility of reinstatement of his license for a period of at least ‘two years. We agree with the Commission that McCann’s conduct violated numerous rules of the Iowa Code of Professional Responsibility for Lawyers and suspend McCann’s license to practice law in this state indefinitely with no possibility of reinstatement for two years.

I. Proceedings Before the Grievance Commission.

The Board filed a complaint against McCann consisting of six counts alleging numerous violations of the Iowa Code of Professional Responsibility for Lawyers. McCann filed an answer admitting and denying various paragraphs of the complaint. Prior to the hearing, the Board and McCann entered into a stipulation admitting all the factual allegations of the complaint and agreeing to the admission of certain exhibits supporting the allegations. The stipulation also included documents detailing McCann’s major depressive disorder and a joint recommendation that McCann’s conduct warranted an indefinite suspension of his license to practice law with no possible reinstatement for at least two years. Finally, the stipulation waived a hearing on the complaint. Based on the stipulation, the Commission cancelled the evidentiary hearing and only heard the arguments of the parties.

The Commission filed a report in our court concluding the Board had proved all the factual allegations of the complaint by a convincing preponderance of the evidence and McCann’s conduct amounted to multiple violations of the Iowa Code of Professional Responsibility for Lawyers. The Commission recommended that we suspend McCann’s license to practice law indefinitely with no possibility of reinstatement for a period of at least two years. As conditions of McCann’s reinstatement, the Commission recommended McCann make restitution to all persons and entities that have lost money as a result of his actions, McCann provide our court with an evaluation completed by a licensed psychiatrist verifying McCann’s fitness to practice law, and McCann agree to refrain from practicing law as a sole practitioner for a period of at least two years after his reinstatement.

II. Scope of Review.

We review the record made before the Commission de novo. Iowa Supreme Ct. Attorney Disciplinary Bd. v. Moonen, 706 N.W.2d 391, 396 (Iowa 2005). The Board has the obligation to prove an ethical violation by a convincing preponderance of the evidence. Id. Although we consider the factual findings and discipline recommendations made by the Commission in deciding the matter, they do not bind us. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Honken, 688 N.W.2d 812, 815 (Iowa 2004).

III. Factual Findings.

Using the stipulation of the parties together with our review of the record, we make the following findings of fact.

Armstrong Matter. McCann undertook representation of Jerry and Karen Armstrong in an action to enforce grandparent visitation rights. McCann filed an intervenors’ application for rule to show cause and request for declaratory ruling. At the hearing on the application, the court noted the difficulty in proving the grandchild’s mother was in contempt and suggested the grandparents’ time might be better spent if they focused on requesting a specific visitation schedule. McCann did not proceed with the contempt hearing.

McCann never filed an application requesting a specific visitation schedule, although he did give a copy of an inter-venors’ application for further order concerning visitation to the Armstrongs indicating to them he filed it with the court. The Armstrongs attempted to contact McCann from November 2000 to February 2001 to determine the status of their case. McCann did not respond to the Armstrongs’ inquiries. On February 21, 2001, the Armstrongs notified McCann that he was no longer their attorney. The Armstrongs filed a complaint with the Board in March. Two days after the Armstrongs filed the complaint, the Board notified McCann of the complaint. McCann then filed the intervenors’ application for further order concerning visitation.

Nelson Matter. McCann agreed to represent Jennifer Nelson in an action for dissolution of marriage. McCann filed a petition for dissolution of marriage stating Nelson had been a resident of Iowa for the past year. At the time McCann filed the dissolution petition, he knew that allegation was not true. McCann attached a verification page signed by Nelson to the dissolution petition. McCann had Nelson sign the verification page before he drafted the petition. Nelson never reviewed the petition before McCann filed it.

Five months after filing the dissolution petition, McCann filed an application for temporary custody. The application for temporary custody also contained a signed verification page prepared and notarized by McCann. Again, Nelson did not review the application before signing the verification page, as McCann had not prepared the application at the time McCann presented the verification page to Nelson for her signature.

McCann never served the dissolution petition on the respondent. The district court issued an order stating that unless McCann served the opposing party with an original notice within sixty days of its order, the court would dismiss the case. McCann did not notify Nelson of this order. Instead, McCann filed a request to serve the notice by publication stating service had been attempted on the respondent but his whereabouts were unknown. This statement was false because McCann never attempted to serve the original notice on the respondent. When McCann made the representation of service to the court, he knew it was false.

Soloman Matter. McCann undertook representation of Debra Soloman in an action for dissolution of marriage. Solo-man paid McCann a $750 retainer. McCann filed a petition for dissolution but neglected to pursue the dissolution matter to decree. In July 2001, McCann received a notice pursuant to Iowa Rule of Civil Procedure 1.944 informing him that the case was subject to dismissal on January 1, 2002.

In October 2001, Soloman filed a small claims action against McCann to recover her retainer. McCann and Soloman appeared on the scheduled trial date for the small claims case in December 2001. The court continued the trial of the small claims action to February 28, 2002.

Around this time, Soloman filed a complaint ' against McCann with the Polk County Ethics Committee. The ethics committee dismissed the complaint based on McCann’s response that he hoped to have the matter resolved by the end of the year, but if he did not, he would seek a trial date to avoid dismissal under rule 1.944.

On January 1, 2002, the clerk of court dismissed the dissolution action under rule 1.944. On January 24, McCann requested that the dissolution matter be set for trial on February 28. On February 28, McCann and Soloman appeared for the small claims case. Soloman dismissed the small claims matter because McCann indicated he would complete her dissolution matter. However, the dissolution matter did not proceed to trial on this date.

After that date, Soloman attempted to call McCann and was unable to contact him. Soloman learned McCann moved from his office without informing Soloman of the move. In December 2002, Soloman sent a letter • to the Polk County Court inquiring how to settle her divorce case. The court informed her that the clerk dismissed her case in January 2002 and McCann did not reinstate it. McCann failed to inform Soloman the clerk dismissed her case in January 2002 and that he did not have it reinstated.

Barritt-Jarosch Matter. In October 2002, McCann undertook the representation of Barbara Barritt-Jarosch and Jeff Jarosch in an action for custody of Jar-osch’s son who is also Barritt-Jarosch’s grandson. They paid McCann a $2500 retainer. Instead of depositing the retainer in an IOLTA trust account, McCann deposited the retainer in his business checking account. McCann used the retainer for his personal or business use.

McCann never pursued the custody case. In February 2003, Barritt-Jarosch notified McCann that she was firing him and requesting an accounting. She also requested that he return all monies not used by him to pursue her case. McCann did not respond to these requests. Bar-ritt-Jarosch also filed a complaint with the Board. McCann responded to the Board’s complaint. The Board then made two requests of McCann asking him to provide a copy of any signed fee agreement or engagement letter and an itemization of his services, as well as an itemization and refund of the unearned portion of the retainer to Barritt-Jaroseh. McCann did not respond to the Board’s requests.

In November 2003, Barritt-Jaroseh filed a small claims action against McCann in an attempt to recover her retainer. McCann appeared at the hearing in the case and returned the retainer in full to Barrita Jarosch.

Moore Matter. McCann agreed to represent Larry Moore in an action for dissolution of marriage. Moore paid McCann a $750 retainer. Moore met with McCann twice, but McCann never filed the dissolution action. After a few months, Moore requested McCann pursue the matter or return his retainer. McCann failed to reply to Moore’s request.

Moore filed a complaint with the Board. The Board notified McCann of the complaint by restricted certified mail on two occasions and by ordinary mail on one occasion. McCann never responded to the complaint. Moore then hired another attorney to pursue his dissolution. Moore’s new attorney wrote several letters to McCann requesting McCann return Moore’s retainer. McCann never replied to the new attorney’s requests.

Purscell Matter. In May 2003, McCann agreed to represent Benjamin Purscell in an action for dissolution of marriage. McCann received a $750 retainer from Purscell. McCann deposited the retainer in his business checking account rather than depositing it in an IOLTA trust account. McCann used the retainer for his personal or business use. McCann caused Purscell to believe that he would file the dissolution petition on May 26, 2003, and the matter would be final ninety days after he filed the petition.

In September, Purscell contacted McCann. McCann informed Purscell that he was still in the waiting period. In November, Purscell discovered McCann did not file the dissolution petition. Purs-cell attempted to reach McCann to obtain a refund but was unable to make contact with him.

In December, McCann filed Purseell’s dissolution petition but did not inform Purscell he filed it. McCann presented a $100 check to the Polk County Clerk of Court for the filing fee. The check was returned due to insufficient funds and a $30 service charge was added to Purscell’s court costs. McCann never paid the filing fee or the service charge. McCann did not pursue the matter after he filed the petition.

Purscell filed a complaint with the Board. The Board notified McCann of the complaint. McCann did not reply to the Board. The Board sent a second letter to McCann. McCann replied to the Board’s second letter two months later indicating he was refunding Purscell’s retainer less the $100 filing fee. McCann never refunded any money to Purscell.

IV. Ethical Violations.

Professional neglect “ ‘involve[s] indifference and a consistent failure to perform those obligations that a lawyer has assumed, or a conscious disregard for the responsibilities a lawyer owes to a client.’ ” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Kennedy, 684 N.W.2d 256, 259-60 (Iowa 2004) (citation omitted). Generally, professional neglect consists of more than a single act or omission and it may involve procrastination. Id. at 260. In every matter alleged by the Board in the complaint, McCann failed to pursue his clients’ causes of action. These failures violated DR 1 — 102(A)(1) (providing a lawyer shall not violate a disciplinary rule), DR 1-102(A)(5) (providing a lawyer shall not engage in conduct that is prejudicial to the administration of justice), DR 1-102(A)(6) (providing a lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law), DR 6-101(A)(3) (providing a lawyer shall not neglect a client’s legal matter), and DR 7-101(A)(1) (providing a lawyer shall not intentionally fail to seek the lawful objectives of a client).

A lawyer violates our disciplinary rules when the lawyer lies to cover up misconduct. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Ruth, 656 N.W.2d 93, 99 (Iowa 2002) (finding a violation of the disciplinary rules when a lawyer lied to the beneficiaries and the court to cover up the lawyer’s misconduct). In each of the matters alleged by the Board in the complaint, McCann misrepresented to the clients how he was processing the cases to cover up his neglect. In the Soloman matter, McCann also misrepresented the status of the case to the Polk County Ethics Committee to cover up his misconduct when he stated how he would respond to the rule 1.944 notice. In the Nelson matter, McCann also misrepresented to the court his efforts to serve the respondent to cover up his neglect. These misrepresentations violated DR 1-102(A)(1) (providing a lawyer shall not violate a disciplinary rule), DR 1-102(A)(4) (providing a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation), DR 1-102(A)(5) (providing a lawyer shall not engage in conduct that is prejudicial to the administration of justice), and DR 1-102(A)(6) (providing a lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law).

In the Armstrong matter, the clients discharged McCann as their attorney after he appeared on their behalf. McCann failed to withdraw as counsel. A lawyer is required to withdraw from a client’s case after being discharged by the client. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Beckman, 674 N.W.2d 129, 138 (Iowa 2004). McCann’s failure to withdraw violated DR 1-102(A)(1) (providing a lawyer shall not violate a disciplinary rule) and DR 2-110(B)(4) (providing a lawyer shall withdraw if the lawyer is discharged by the client).

A lawyer is required to place a retainer in a trust account, account for the funds, and properly deliver a client’s funds to the client when requested to do so. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Frerichs, 671 N.W.2d 470, 477 (Iowa 2003). McCann failed to comply with these ethical obligations in the Bar-ritfl-Jarosch, Moore, and Purscell matters. McCann’s failures violated DR 1-102(A)(1) (providing a lawyer shall not violate a disciplinary rule), DR 9-102(B)(3) (providing a lawyer shall maintain complete records of a client’s funds and render appropriate accounts to the client regarding them), and DR 9-102(B)(4) (providing a lawyer shall promptly pay or deliver funds to a client as requested by a client). Additionally, in the Barritt-Jaroseh and Purscell matters, McCann violated DR 9-102(A) (providing funds of a client shall be deposited in one or more identifiable interest-bearing trust accounts) and DR 9-103(A) (providing a lawyer shall maintain on a current basis books and records sufficient to demonstrate compliance with DR 9-102).

McCann stipulated that he used the retainers in the Barritt-Jarosch and Purscell matters for his personal or business use prior to earning them. A lawyer converts a client’s funds when the lawyer takes a fee before he earns it. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Apland, 577 N.W.2d 50, 56 (Iowa 1998). This conduct violated DR 1-102(A)(1) (providing a lawyer shall not violate a disciplinary rule), DR 1~102(A)(3) (providing a lawyer shall not engage in illegal conduct involving moral turpitude), DR 1-102(A)(4) (providing a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation), DR 1-102(A)(6) (providing a lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law), DR 9-102(A) (providing funds of a client shall be deposited in one or more identifiable interest-bearing trust accounts), and DR 9-103(A) (providing a lawyer shall maintain on a current basis books and records sufficient to demonstrate compliance with DR 9-102).

Finally, in the Barritb-Jarosch and Moore matters, McCann failed to respond to the Board’s inquiries. We expect lawyers to cooperate with disciplinary investigations conducted by the Board. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sullins, 556 N.W.2d 456, 457 (Iowa 1996). McCann’s failure to respond violated DR 1-102(A)(1) (providing a lawyer shall not violate a disciplinary rule), DR 1-102(A)(5) (providing a lawyer shall not engage in conduct that is prejudicial to the administration of justice), and DR 1-102(A)(6) (providing a lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law).

Y. Discipline.

In summary, McCann’s conduct consists of multiple acts of neglecting clients’ matters, misrepresenting how he was processing the matters to his clients, misrepresenting a matter to the court, misrepresenting a matter to the Polk County Ethics Committee, failing to withdraw from a matter when discharged, failing to deposit retainers in a trust account, failing to maintain proper books and records regarding a trust account, failing to deliver client funds when requested to do so, using funds that belong in a trust account for personal or business use, and failing to respond to the Board’s inquiries.

We have stated:

The goal of the Code of Professional Responsibility is “to maintain public confidence in the legal profession as well as to provide a policing mechanism for poor lawyering.” When deciding on an appropriate sanction for an attorney’s misconduct, we consider “the nature of the violations, protection of the public, deterrence of similar misconduct by others, the lawyer’s fitness to practice, and [the court’s] duty to uphold the integrity of the profession in the eyes of the public.” We also consider aggravating and mitigating circumstances present in the disciplinary action.

Honken, 688 N.W.2d at 820 (alteration in original) (citations omitted). Precedents in attorney discipline cases are of little value, and we must impose discipline in light of the facts and circumstances of each case. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bernard, 653 N.W.2d 373, 376 (Iowa 2002).

A mitigating factor in McCann’s favor is that his stressful family law practice caused him to suffer from severe depression and anxiety. Moonen, 706 N.W.2d at 401-02. We can consider McCann’s depression when determining a sanction; however, a lawyer’s mental status is “a personal problem of the lawyer that does not excuse the misconduct.” Honken, 688 N.W.2d at 821-22.

Aggravating factors in this record include multiple incidents of neglect. Iowa-Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Moorman, 683 N.W.2d 549, 553 (Iowa 2004). McCann’s misrepresentations to the court, his clients, and the Polk County Ethics Committee are serious violations. Bernard, 653 N.W.2d at 376. Additionally, McCann’s actions in requesting retainers, not pursuing the cases, and failing to return the fees when clients requested that he do so caused substantial harm to his clients. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Jay, 606 N.W.2d 1, 4 (Iowa 2000).

McCann’s conversion of his clients’ funds causes us the most concern. This case is not a case of mere commingling of client funds with business funds. McCann stipulated that he “converted” a total of $3250 in retainers from Barritt-Jarosch and Purscell for his personal or business use. Normally when a lawyer deliberately converts a client’s funds, we revoke the lawyer’s license to practice law. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Williams, 675 N.W.2d 530, 533 (Iowa 2004); Comm. on Prof'l Ethics & Conduct v. Ottesen, 525 N.W.2d 865, 866 (Iowa 1994). We have stated, however, we will impose a lesser penalty when “the attorney had a colorable future claim to the funds.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Anderson, 687 N.W.2d 587, 590 (Iowa 2004). The stipulated facts indicate McCann had a colorable future claim to the funds he converted. Therefore, revocation of McCann’s license to practice law is not warranted in this case. See Kennedy, 684 N.W.2d at 260-61 (imposing a two-month suspension where the conduct involved converting retainers before completing the work); Iowa Supreme Ct. Bd. of Profl Ethics & Conduct v. Waples, 677 N.W.2d 740, 742-43 (Iowa 2004) (imposing a six-month suspension where the conduct involved collecting fees without completing the work); Ruth, 656 N.W.2d at 98-100 (imposing a two-year suspension where the conduct involved taking fees before earning them); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Plumb, 589 N.W.2d 746, 747-49 (Iowa 1999) (imposing a two-month suspension where the conduct involved depositing a fee in the lawyer’s personal account and failing to perform the work). In light of the facts and circumstances of this case, we suspend McCann’s license to practice law for two years.

YI. Disposition.

We suspend McCann’s license to practice law in this state indefinitely with no possibility of reinstatement for two years. The suspension applies to all facets of the practice of law. See Iowa Ct. R. 35.12. Upon any application for reinstatement, McCann must establish that he has not practiced law during the suspension period, he has in all ways complied with the requirements of Iowa Court Rule 35.13, and he has made restitution to all persons and entities that have lost money as a result of his actions as set forth in this opinion. McCann must also provide this court with an evaluation by a licensed health care professional verifying his fitness to practice law. Before obtaining this evaluation, McCann shall submit the names of the proposed evaluators and the nature of the evaluation to the Board for its prior approval. McCann shall also comply with the notification requirements of Iowa Court Rule 35.21. We tax the costs of this action to McCann pursuant to Iowa Court Rule 35.25.

LICENSE SUSPENDED.


source: Caselaw Access Project

author: TERNUS, Justice.

license: Public Domain

text:
    In re the DETENTION OF Emery E. DARLING, Emery E. Darling, Appellant.
    No. 04-1703.
    Supreme Court of Iowa.
    March 31, 2006.

      Mark Smith, First Assistant State Public Defender, and Michael H. Adams, Assistant State Public Defender, for appellant.
    Thomas J. Miller, Attorney General, and Linda J. Hines and Denise A. Timmons, Assistant Attorneys General, for appellee, State of Iowa.
   TERNUS, Justice.

The appellant, Emery Darling, is moderately mentally retarded, has a history of molesting young children, and has been diagnosed with pedophilia. He was committed as a sexually violent predator under Iowa Code chapter 229A (2003) on September 22, 2004. He appeals the judgment of commitment, contending chapter 229A does not apply to a person who is mentally retarded and not amenable to sex offender treatment. Darling also asserts his confinement violates his statutory and due process rights to treatment.

I. Application of Chapter 229A.

Darling argued in the district court and claims on appeal that chapter 229A does not apply to him because he is mentally retarded and is not amenable to cognitive behavioral therapy. We recently rejected similar arguments made by a respondent who suffered from an organic brain disorder that rendered him unlikely to benefit from traditional sex offender treatment. See In re Matter of Betsworth, 711 N.W.2d 280 (Iowa 2006). In Betsworth, we held the “mental abnormality” required for commitment under chapter 229A is not limited to a particular type of mental disease or defect. Id. at 284. Moreover, the fact that the respondent in Betsworth had previously been committed under chapter 229, the civil commitment statute for mentally ill persons, did not mean that he could not simultaneously qualify for commitment under chapter 229A. Id. at 284.

In Betsworth, we also rejected the suggestion that chapter 229A requires “that the person committed be amenable to the long-term cognitive behavioral treatment principally used to treat sex offenders.” Id. at 285. We explained that “the State is free to provide individualized treatment for sexually violent predators,” and therefore, “chapter 229A encompasses sexually violent predators who ... will not benefit greatly from cognitive behavioral therapy and must instead be treated with other modalities.” Id.

The same conclusions are warranted here, as we explain.

A. Mental abnormality. Initially, it is important to recognize that Darling’s commitment is not based on his mental retardation. The State’s expert testified at trial that Darling suffered from the mental abnormality of pedophilia and was at a high risk to reoffend if not confined. Thus, the basis for his commitment under chapter 229A is his pedophilia, not his mental retardation. The State’s expert further opined that Darling’s pedophilia was congenital or acquired and affected the respondent’s ability to control his sexual impulses. Therefore, Darling’s mental abnormality- — pedophilia—is a proper foundation for his commitment under chapter 229A. See In re Detention of Palmer, 691 N.W.2d 413, 415 (Iowa 2005) (committing as a sexually violent predator a respondent who suffered from pedophilia); In re Detention of Cubbage, 671 N.W.2d 442, 443 (Iowa 2003) (same); In re Detention of Garrett, 671 N.W.2d 497, 498 (Iowa 2003) (same); In re Detention of Ewoldt, 634 N.W.2d 622, 622 (Iowa 2001) (same). The fact the respondent also suffers from mental retardation does not alter this conclusion.

Darling also argues he should be committed under the statute providing for the civil commitment of mentally retarded persons, Iowa Code chapter 222, rather than under chapter 229A. He asserts the former statute would allow for the least restrictive means necessary to deal with his mental retardation, rather than confinement in a secure facility, which is mandated under chapter 229A. This argument rests on a faulty premise: that Darling’s confinement is intended to address his condition of mental retardation. But as we have already pointed out, Darling is being committed for his pedophilia, not his mental retardation. Therefore, chapter 229A is the appropriate vehicle. Moreover, as this court has previously held, chapter 229A’s requirement that a respondent be confined in a secure facility does not violate the respondent’s right to the least restrictive placement. See In re Detention of Garren, 620 N.W.2d 275, 285 (Iowa 2000).

B. Amenability to treatment. In Betsworth, we held the respondent could properly be committed under chapter 229A notwithstanding the fact that his organic brain disorder made it unlikely that he would benefit from traditional sex offender treatment. 711 N.W.2d at 289. Likewise, here, the fact that Darling’s mental retardation makes it unlikely that he can effectively participate in cognitive behavioral therapy does not preclude his commitment under chapter 229A. There was evidence at trial that a treatment plan for Darling could be tailored to his individual abilities. Therefore, his cognitive limitations do not disqualify him from being committed as a sexually violent predator.

II. Right-to-Treatment Claims.

Darling claims he has a statutory right to effective treatment and a constitutional due process right to treatment, and these rights are violated by his commitment under chapter 229A because he is not amenable to sex offender therapy. These statutory and constitutional claims are somewhat overlapping insofar as the sexually violent predator act requires that the involuntary commitment of persons under chapter 229A must “conform to constitutional requirements for care and treatment.” Iowa Code § 229A.9. We will discuss the statutory and constitutional claims separately, however.

A. Chapter 229A. One goal of chapter 229A is treatment of the sexually violent predator. See Betsworth, 711 N.W.2d at 288. But like the respondent in Betsworth, Darling has failed to establish that his chapter 229A right to treatment has been violated. The record shows the State will individualize a treatment program to compensate for Darling’s limited cognitive abilities. Chapter 229A does not require that the treatment will ultimately be successful as a prerequisite for commitment.

B. Substantive due process. We reach the same conclusion with respect to the respondent’s substantive due process claim. There is no constitutional bar to the civil confinement of sexually violent predators with untreatable conditions when confinement is necessary to protect the public. Id. at 289; accord Seling v. Young, 531 U.S. 250, 262, 121 S.Ct. 727, 734, 148 L.Ed.2d 734, 746 (2001). Here, Darling was committed only after a jury unanimously determined beyond a reasonable doubt he was a sexually violent predator, a determination that required a finding he was “likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility.” Iowa Code § 229A.2(11). Clearly, his confinement is necessary to protect the public. See generally id. § 229A.1, para. 2 (noting “legitimate public safety concerns” regarding the commitment of sexually violent predators and “the need to protect the public”). Consequently, even if Darling’s mental retardation will prevent effective treatment of his pedophilia, the Constitution does not prohibit his confinement.

AFFIRMED.

      . The requirement of a “mental abnormality” is found in the statutory definition of “sexually violent predator." The latter term is defined as
      a person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality which makes the person likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility.
      Iowa Code § 229A.2(11) (emphasis added). A “mental abnormality” is defined'as “a congenital or acquired condition affecting the emotional or volitional capacity of a person and predisposing that person to commit sexually violent offenses to a degree which would constitute a menace to the health and safety of others.” Id. § 229A.2(5).


author: STREIT, Justice.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Donna P. LESYSHEN, Respondent.
    No. 05-1954.
    Supreme Court of Iowa.
    April 7, 2006.

      Charles L. Harrington and David J. Grace, Des Moines, for complainant.
    Donna P. Lesyshen, Waterloo, pro se.
   STREIT, Justice.

An Iowa attorney with a history of ethical problems is here with more ethical violations. The Iowa Supreme Court Attorney Disciplinary Board (“Board”) accused Donna Lesyshen of neglecting client matters, failing to respond to inquiries from the Board, mishandling trust account funds, and inadequate withdrawal. The Grievance' Commission of the Supreme Court of Iowa (“Commission”), upon reviewing a joint stipulation of facts from Lesyshen and the Board, found Lesyshen violated the Iowa Code of Professional Responsibility and recommended a five-year suspension. Based on the record before us, an indefinite suspension with no possibility of reinstatement for at least two years is appropriate.

I. Background

Lesyshen was admitted to practice law in 1982. She served as a prosecutor in the Black Hawk County Attorney’s office and then as an assistant city attorney for the City of Waterloo. Following her tenure as assistant city attorney, she entered private practice. She had a general practice, which included trial work. Lesyshen no longer wishes to practice law, and she has found other employment. Lesyshen’s license to practice law is currently on inactive status.

This is not the first time Lesyshen has been before this court for disciplinary action. Lesyshen was publicly reprimanded in 1994 for aiding the unauthorized practice of law contrary to DR 3-101(A). Additionally, in October 1998, we imposed a six-month suspension for neglect, forgery, and false notarization. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lesyshen, 585 N.W.2d 281, 288 (Iowa 1998).

The Board filed this complaint with the Commission for neglect, failure to cooperate with the Board, inadequate withdrawal, and a trust account violation. Both parties waived the hearing and agreed to submit the matter to the Commission on the basis of the complaint, corresponding exhibits, and a joint stipulation that recommended Lesyshen’s license to practice law be suspended for a period of four years. Based on the joint stipulation, the Commission found Lesyshen’s conduct violated the disciplinary rules designated in the complaint, and recommended Lesyshen’s license be suspended for a period of five years.

II. Standard of Review

We review attorney disciplinary proceedings de novo. Iowa Supreme Ct. Attorney Disciplinary Bd. v. Kadenge, 706 N.W.2d 403, 405 (Iowa 2005); Iowa Ct. R. 35.10(1). The Board has the burden to prove disciplinary violations by a convincing preponderance of the evidence. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Williams, 675 N.W.2d 530, 531 (Iowa 2004). This burden is “less than proof beyond a reasonable doubt, but more than the preponderance standard required in the usual civil case.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004). We give respectful consideration to the Commission’s findings and recommendations, but we are not bound by them. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bell, 650 N.W.2d 648, 650 (Iowa 2002) (revoking license even though Commission recommended five-year suspension). We review this matter pursuant to Iowa Court Rule 35.10, and depart from the sanctions recommended by the Commission and the joint stipulation.

III. Factual Findings

Lesyshen admitted all of the factual claims and ethical violations made against her by the Board. We find convincing evidence to prove the following:

A.C.S. Matter

Lesyshen was appointed to represent C.S. in an appeal from a juvenile court order terminating C.S.’s parental rights. Lesyshen filed a notice of appeal, but she failed to pursue the appeal, resulting in its dismissal pursuant to Iowa Rule of Appellate Procedure 6.19. Lesyshen claims she was unable to contact her client. The joint stipulation is silent as to how Lesyshen was able to initially contact C.S. to sign the notice of appeal, but could not reach her client shortly thereafter. C.S. requested that her appeal be reinstated, and the supreme court did so, and ordered the district court to replace Lesyshen. Les-yshen did not respond to the Board’s notices of complaint.

B. J.T. Matter

Lesyshen represented J.T. in an appeal to the Iowa Supreme Court. Lesyshen filed the notice of appeal, but took no further action. Lesyshen claims she did not follow through with the appeal because her client changed his mind. Eventually the clerk of the supreme court dismissed the appeal for want of prosecution. Pursuant to rule 6.19(3) of the Iowa Rules of Appellate Procedure, the clerk forwarded the notice of default and order of dismissal to the Board.

C. Robert Wilson Estate Matter

Lesyshen was the attorney for the Estate of Robert Wilson. The estate was opened so that a parcel of real estate could be sold. Lesyshen sold the parcel yet neglected to take steps to close the estate. Three delinquency notices were sent to Lesyshen by the clerk of court. Eventually, the court removed Lesyshen and the executor, and ordered the estate closed. Lesyshen did not respond to two complaint notices from the Board.

D. Schares Matter

Lesyshen represented Melvin Schares in a dissolution of marriage action. In May 2002, Lesyshen received a $1200 retainer, but she did not deposit it in her trust account. Lesyshen claims this was an error by her secretary. The stipulation does not indicate what was done with the $1200. In June 2002, Lesyshen took other employment, and stopped working on Schares’ case. In August, Schares filed a complaint with the Board. Lesyshen then refunded the unearned portion of the retainer and formally withdrew from the case.

IV. Ethical Violations

A.Neglect

The record supports the Commission’s finding that Lesyshen committed professional neglect on numerous occasions. See DR 6 — 101(A)(3) (providing a lawyer shall not neglect a client’s legal matter); see also Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Moorman, 688 N.W.2d 549, 551 (Iowa 2004) (defining professional neglect as “indifference and a consistent failure to perform those obligations that a lawyer has assumed, or a conscious disregard for the responsibilities a lawyer owes to a client”).

In the C.S. and J.T. matters, the appeals were dismissed as a result of Les-yshen’s neglect. Even though the C.S. case was ultimately reinstated, the subsequent reinstatement did not cure the prior neglect. Id. at 552. Regardless of the client’s interest in the case, the onus is on the attorney to comply with the deadlines provided in the appellate rules. See Iowa R.App. P. 6.19. Unless the court relieves an attorney of his or her responsibility to the client on appeal, as an officer of the court, the attorney is required to file the appropriate documents and briefs. Anything less may be considered neglect. See Moorman, 683 N.W.2d at 552-53 (holding attorney’s failure to comply with rules of appellate procedure, as well as subsequent notices to cure the defaults issued by the clerk of court, reveals a blatant pattern of neglect and constitutes a “conscious disregard” for the responsibilities an attorney owes a client and the court). In regard to the J.T. matter, simply because a client does not want to pursue the ease does not relieve the attorney from taking steps necessary to end the matter. To simply wait for the court to dismiss the case for lack of prosecution is neglect, inappropriate, and unethical. See DR 6-101(A)(3).

Lesyshen also neglected the Robert Wilson Estate matter because she failed to take steps to close the estate even though she received three delinquency notices from the court. Further, Lesyshen neglected the Schares matter when she simply stopped working on the case after she changed employment. In considering the nature of the violations in these matters, we note the dilatory handling of client matters is a disservice not only to the client but also to the judicial system. Kadenge, 706 N.W.2d at 408-09.

B.Failure to Cooperate with the Board

We have repeatedly emphasized how important it is for an attorney to cooperate with disciplinary authorities when a complaint has been filed against the attorney. Id. at 409. Lesyshen was initially uncooperative with the Board. She ignored two notices of complaint in the C.S. matter. She also ignored two notices from the Board in the Robert Wilson Estate matter. While the joint stipulation indicates Lesyshen eventually cooperated with the Board, her initial lack of cooperation wasted the Board’s valuable time and limited assets. Id. Her lack of cooperation also prejudiced the Board’s ability to gather all pertinent facts regarding the complaints. Id. Such actions clearly violate DR 1~102(A)(5) (“A lawyer shall not ... [ejngage in conduct that is prejudicial to the administration of justice.”). Comm. on Prof'l Ethics & Conduct v. Bromwell, 389 N.W.2d 854, 857 (Iowa 1986) (holding failure to respond to grievance committee violates the proscription against conduct prejudicial to administration of justice).

C. Trust Account Violation

Client funds paid to an attorney must be deposited into an interest-bearing trust account, rather than the firm’s operating account, until they are earned. Kadenge, 706 N.W.2d at 408. Lesyshen’s failure to deposit Sehares’ retainer of $1200 in a trust account violated DR 9-102 (failure to deposit advance for fees in trust account). The fact that Les-yshen paid the money back to Sehares after he filed a complaint is not a valid defense or excuse for this ethical violation. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Stowers, 626 N.W.2d 130, 133 (Iowa 2001).

D. Inadequate Withdrawal

Lesyshen clearly violated DR 2-110 (withdrawal from representation without completing work, to prejudice of client) in the Sehares matter. She found other employment, stopped working on Sehares’ case, and failed to withdraw properly or notify Sehares. See Comm. on Prof'l Ethics & Conduct v. Freed, 341 N.W.2d 757, 759 (Iowa 1983) (stating neglect of duties to client is like “a surgeon who, without transferring responsibility, drops his scalpel and abandons his patient in the course of an operation”). Lesyshen’s conduct also violated DR 7-101(A)(l) (failure to seek objectives of a client), DR 7~101(A)(2) (failure to carry out employment contract with a client), and DR 7-101(A)(3) (prejudice or damage to a client).

V. Sanction

In the joint stipulation, Lesyshen agreed to a four-year recommended sanction saying she had found other employment and no longer wished to practice law. The Commission recommended Lesyshen be suspended for a period of five years given the violations that had occurred. However, we find, based on the joint stipulation, findings of fact, conclusions of law and recommendation, with its limited explanation of events, a sanction of two years is appropriate.

When we impose sanctions, we only do so on the evidence before us. We give respectful consideration to the recommendations of the Commission, but are not bound by them. Comm. on Prof'l Ethics & Conduct v. Nadler, 467 N.W.2d 250, 254 (Iowa 1991). Factors that help guide our determination include “the nature of the violations, the need for deterrence, protection of the public, maintenance of the reputation of the Bar as a whole, and the violator’s fitness to continue to practice law.” Iowa Supreme Ct. Bd. of Profl Ethics & Conduct v. Ramey, 639 N.W.2d 243, 245 (Iowa 2002). Often, the distinction between the punishment imposed depends upon the existence of multiple instances of neglect, past disciplinary problems, and other companion violations, including uncooperativeness in the disciplinary investigation. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sprole, 596 N.W.2d 64, 66 (Iowa 1999).

Subsequent to Lesyshen’s two prior ethical violations, Lesyshen engaged in client neglect, a trust account violation, and inappropriate withdrawal from a client’s case, which caused potential harm to her clients. Further, she initially failed to cooperate with the Board, which is an additional factor in imposing discipline. Moorman, 683 N.W.2d at 553-54. Based only on the limited facts in the record before us, we find a suspension for a minimum of two years is appropriate. See Iowa Supreme Ct. Attorney Disciplinary Bd. v. McCann, 712 N.W.2d 89, 91 (Iowa 2006) (imposing a two-year suspension for trust account violations and aggravating factors of neglect); low a Supreme Ct. Attorney Disciplinary Bd. v. Sotak, 706 N.W.2d 385, 386 (Iowa 2005) (imposing an indefinite suspension of two years where conduct involved professional neglect, misrepresentations, failure to notify clients of attorney’s transfer to new law firm, and failure to promptly give settlement check to client); Iowa Supreme Ct. Attorney Disciplinary Bd. v. Maxwell, 705 N.W.2d 477, 478 (Iowa 2005) (imposing a one-year suspension for violations stemming from neglect and inattention in the representation of three clients, where attorney had prior ethical violations).

VI. Conclusion

Lesyshen is suspended indefinitely from the practice of law with no possibility of reinstatement for at least two years. This suspension shall apply to all facets of the practice of law as provided in Iowa Court Rule 35.12(3) and requires notification of clients as outlined in Iowa Court Rule 35.21. Costs are taxed to Lesyshen pursuant to Iowa Court Rule 35.25(1).

LICENSE SUSPENDED.


text:
    K & W ELECTRIC, INC., Appellant, v. STATE of Iowa, Appellee.
    No. 04-0643.
    Supreme Court of Iowa.
    April 7, 2006.

      John J. Hines of Dutton, Braun, Staack, Heilman, P.L.C., Waterloo, for appellant.
    Thomas J. Miller, Attorney General, and Noel C. Hindt and Richard E. Mull, Assistant Attorneys General, for appellee.
   TERNUS, Justice.

The appellant, K & W Electric, Inc., appeals an adverse summary judgment ruling on its damage claims against the appellee, State of Iowa. K & W sued the State on theories of negligence, violation of Iowa Code section 314.7 (1999), and inverse condemnation, claiming a highway construction project undertaken by the Iowa Department of Transportation (DOT) in the vicinity of the plaintiffs premises caused flooding that damaged the plaintiffs property. The district court held the plaintiffs claims were time barred, see Iowa Code § 614.1(4), and the defendant was immune from tort liability under Iowa Code section 669.14(8). We affirm.

I. Facts and Prior Proceedings.

The plaintiff is an electrical contractor whose place of business is at 1127 Lincoln Street in Cedar Falls, Iowa. Its business premises include a large steel building that houses an office, shop, and storage facilities. The plaintiffs property is located in the 100-year flood plain of the Cedar River near a diversion channel of the river.

The Cedar River has a long history of flooding in Cedar Falls, with the highest recorded flood prior to the events giving rise to this litigation occurring in 1961. In 1984, the Federal Emergency Management Agency (FEMA) prepared a flood insurance study of the city to investigate the existence and severity of flood hazards and to assist the community in promoting sound flood plain management. The study included a flow-frequency analysis, flood profiles, and floodways for each channel. A floodway, according to the FEMA report, “is the channel of a stream plus any adjacent flood plain areas that must be kept free of encroachment so that the 100-year flood can be carried without substantial increases in flood heights.” Under federal standards, a substantial increase is an increase in excess of one foot.

In the early 1990s, the DOT undertook an extensive highway construction project involving multiple interchanges between highways 218, 58, and 57 over and near the Cedar River and the Cedar River diversion channel. Some of these structures were just a short distance from the plaintiffs property. Using data from the FEMA report, engineers designed the bridges and structures crossing the river and diversion channel to span the floodway without increasing a 100-year flood by more than one foot. The designs were approved by the Iowa Department of Natural Resources, and the project was constructed according to design.

In April 1993 heavy rainfall and snow-melt caused a flood that matched the record 1961 flood. During this flood, the plaintiffs land was covered by floodwaters of substantial depth. Only the building, which had been built on an elevation approximately one foot above the 100-year flood level established by the Cedar Falls flood plain maps, remained above flood level, but barely so. A second flood occurred in August 1993, but the flood crest was about two feet less than the April flood.

In the aftermath of the extensive flooding in 1993, the DOT sponsored a flood study conducted by Rust Environment and Infrastructure, Inc. The purpose of the study was to review the flooding characteristics of the Cedar River in light of data collected from the 1993 floods and to determine the effects of highway construction in the area. (The report stated that at the time of the April 1993 flood, “the majority of the highway improvements were in place.”) The “Cedar River Flood Plain Study,” hereinafter “the Rust report,” was published on January 25, 1994. The report asserted that the availability of “actual flood high-water elevations and discharge measurements” from the 1993 floods had “resulted in the most reliable computer model ever developed for the Cedar River study area.”

Of significance to the present lawsuit, the report found that the effects of construction were significant in the diversion channel and its vicinity, an area that included the plaintiffs business. Three factors were identified as leading to an increased water flow in the diversion channel: (1) backwater created by the highway 218 bridge over the diversion channel; (2) backwater created by bridges on the main channel; and (3) construction of West Lake, which removed a portion of Big Woods Road, creating a less resistant flow path for water to enter the diversion channel. The report concluded, however, that “[a]ll highway structures were sized based on information available at the time of the specific project.” It noted the structures for highway 58 and highway 218 through the diversion channel spanned the flood-way as identified in the FEMA report. In addition, the Rust report stated that based on the model in use when the improvements were designed, the increase in the floodways was anticipated to be approximately one foot. In actuality, the increase was greater, particularly in the area of the plaintiffs business.

In March 1994, shortly after the Rust report was released, K & W filed a claim with the state appeal board, seeking recovery for damage to a truck caused by the April 1993 flood. In relevant part, its claim stated:

Our construction business, located at 1127 Lincoln Street, Cedar Falls, was completely surrounded by flood waters on April 2,1993. The flood waters were caused by highway construction in the area.
In order to keep our business in operation, we used our big heavy duty trucks to transport employees and material from our place of business, thru the flood waters, to our job sites and to our customers. We used the International Truck to go thru the flood water and it developed engine and rear end trouble.

K & W claimed approximately $5600 in damages. The claim was denied, however, and K & W did not pursue further litigation against the State.

On July 22, 1999, heavy rains hit northern Iowa, causing a flood on the Cedar River. K & W’s property was again flooded. This time, however, water entered the plaintiffs building, causing extensive damage and necessitating significant cleanup efforts. On January 31, 2000, K & W filed a tort claim against the State for property damage in excess of $32,000. The plaintiff again claimed the flooding and resultant damages were caused by the effects of highway construction. K & W alleged the State was negligent, and it specifically referred to the Rust report and the three construction-related factors identified there as having increased the water flow in the diversion channel. In addition to damages, the plaintiff asked that a plan be developed to protect its property and that the State pay for construction of the solution. The appeal board denied K & W’s claim.

This lawsuit was filed on June 11, 2001. The plaintiff reasserted its negligence claim, alleging the DOT failed to exercise due care in the design and construction of the highway projects in the vicinity of the plaintiffs facility. In addition, K & W contended the DOT’s construction activities violated Iowa Code section 314.7, which requires that contractors must “use strict diligence in draining the surface water from the public road in its natural channel” when improving any highway. Finally, the plaintiff claimed a permanent devaluation of its property, resulting in an inverse condemnation.

The State subsequently filed a motion for summary judgment on several grounds, but only two are pertinent to this appeal: (1) the design-and-construction immunity of Iowa Code section 669.14(8) applies to the plaintiffs tort claims because the project design complied with generally accepted engineering standards, and the highways were constructed in accordance with the design specifications; and (2) the plaintiffs inverse condemnation claim is barred by the statute of limitations contained in Iowa Code section 614.1(4) because K & W was aware of the potential for increased flooding since at least the April 1993 flood. Accepting both arguments, the district court granted the State’s motion for summary judgment. The plaintiff has appealed.

II. Scope of Review.

The district court’s ruling on a motion for summary judgment is reviewed for correction of errors of law. See Christy v. Miulli, 692 N.W.2d 694, 699 (Iowa 2005).

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Id. (citation omitted). A genuine factual issue “is generated if reasonable minds can differ on how the issue should be resolved.” Id. A fact is material only if its existence would affect the outcome of the suit. Faeth v. State Farm Mut. Auto. Ins. Co., 707 N.W.2d 328, 331 (Iowa 2005).

To obtain summary judgment, “the moving party must affirmatively establish the existence of undisputed facts entitling that party to a particular result under controlling law.” Griglione v. Martin, 525 N.W.2d 810, 813 (Iowa 1994). In considering whether the moving party has satisfied this requirement, we accord the nonmoving party every legitimate inference that may be drawn from the record. Faeth, 707 N.W.2d at 331. If the moving party has met its burden, “[t]he resisting party must set forth specific facts showing that a genuine factual issue exists.” Grabill v. Adams County Fair & Racing Ass’n, 666 N.W.2d 592, 594 (Iowa 2003).

III. Design^and-Construction Immunity.

We begin with the State’s claim that its statutory waiver of sovereign immunity does not apply to the plaintiffs negligence claims by virtue of the exception contained in section 669.14(8). This statute provides that the state tort claims act does not apply to

[a]ny claim based upon or arising out of a claim of negligent design or specification, negligent adoption of design or specification, or negligent construction or reconstruction of a highway, secondary road, or street ... that was constructed or reconstructed in accordance with a generally recognized engineering or safety standard, criterion], or design theory in existence at the time of the construction or reconstruction. A claim under this chapter shall not be allowed for failure to upgrade, improve, or alter any aspect of an existing highway, secondary road, or street, to new, changed, or altered design standards.

Iowa Code § 669.14(8). This statute gives the DOT “a state-of-the-art defense with respect to design and construction of [highways and roads].” Connolly v. Dallas County, 465 N.W.2d 875, 877 (Iowa 1991) (discussing comparable exception in municipal tort claims act). It also establishes

that the extent of the public agency’s duty for purposes of establishing non-constitutional torts is measured by the “generally recognized engineering or safety standard, criteri[on], or design theory” in existence at the time of the construction or reconstruction.

Id. (quoting Iowa Code § 613A.4(7), (8) (now found at Iowa Code § 670.4(7), (8))).

To demonstrate the applicability of this immunity, the State submitted the affidavit of David Claman, a civil engineer employed by the DOT. Claman stated in his affidavit that the hydraulic analysis and the design of the highway projects in question were based upon data from the 1984 FEMA study. He further stated:

Based on this analysis, the bridges and structures crossing the main channel of the Cedar River, and the Cedar River diversion channel were sized to span the floodway, defined as the area that must be kept free of encroachments so that a 100-year flood could be carried without a substantial increase, defined as one foot, in flood heights.... The project was constructed according to design, in accordance with these recognized, generally accepted engineering criteria existing at the time of the design and construction.

These statements were corroborated by the Rust report, which stated “[a]ll highway structures were sized based on information available at the time of the specific project,” the highway structures “through the diversion channel were sized to span the ... floodway,” and “[t]he floodways developed for both the diversion channel and the main channel of the Cedar River produced approximately 1 foot of increase, as computed by the HEC-2 hydraulic model” developed from the data compiled in the 1984 FEMA study.

In resistance to the State’s motion for summary judgment, K & W submitted the affidavit of William Kehe, a professional engineer with experience in hydraulic analysis' for the design of bridges, highways, and waterways., Kehe did not dispute the findings and conclusions stated in the Rust report and the Claman affidavit. Rather, he stated that after reviewing the 1994 Rust report, he “[felt] that K & W ha[d] merit in its claim for damages against the DOT.” Kehe gave the following explanation for his opinion:

The [Rust] study uses nationally accepted modeling methodology validated against the 1993 floods to conclude that recent highway construction has raised the level of the Q100 flood event in nearly all locations.... [T]he study clearly states that Lincoln Street was most adversely affected with a rise of 1.9 feet above the current Flood Insurance Map elevation. The study also concludes the major rise in the controlling flood elevation was caused by the removal of a portion of Big Woods Road thus eliminating an existing temporary detention basin along the Diversion Channel.
Raising any flood elevation by construction more than one foot is typically a violation of state and federal laws.

(Emphasis added.)

We agree with the district court that Kehe’s affidavit is not sufficient to prevent summary judgment on the State’s design immunity defense. A review of the record, including the affidavits submitted by the parties, reveals the following facts pertinent to the DOT’s state-of-the-art defense are essentially undisputed. The highway project was designed so that flood levels would rise by no more than one foot. This design was based on a hydraulic model that utilized the most current data available at the time of the design and construction. The one-foot increase projected by this hydraulic analysis was within acceptable parameters for flood plain improvements. The DOT constructed the highway improvements in accordance with the design. A more accurate hydraulic model was developed in 1994 based on the 1993 flood data, data that was not available at the time of the design and substantial completion of the DOT project. The 1994 model shows the highway project has, in fact, raised the 100-year flood level in the vicinity of the plaintiffs business by more than the one-foot rise projected by the models in use prior to 1994. The actual increase in flood levels caused by the highway project exceeds federal standards.

These facts establish the applicability of section 669.14(8) as a matter of law. The plaintiffs claim is “based upon ... negligent design or specification, negligent adoption of design or specification, or negligent construction or reconstruction of a highway.” Iowa Code § 669.14(8). The highway “was constructed or reconstructed in accordance with a generally recognized engineering ... standard, criterion], or design theory in existence at the time of the construction or reconstruction.” Id. (emphasis added). There is no dispute as to these determinative facts. We think this case presents a classic scenario for application of the design-and-construction immunity.

The plaintiff contends that even if the highway project was designed in accordance with engineering standards, criteria, and design theory generally recognized at the time of the design, the DOT was obligated to revise its plans when it received the Rust report in January of 1994. The record shows the majority of the work on the highway project had been completed at the time of the April 1993 flood. Another season of construction passed before the Rust report was issued nine months later. We do not think the DOT loses its design immunity when new design standards are developed after the majority of the project has been completed, particularly in view of the legislature’s express statement that “[a] claim under this chapter shall not be allowed for failure to upgrade, improve, or alter any aspect of an existing highway, secondary road, or street, to new, changed, or altered design standards.” Iowa Code § 669.14(8).

In interpreting statutes, we attempt to avoid an interpretation that would lead to absurd or impractical re-suits. See State v. Tesch, 704 N.W.2d 440, 451 (Iowa 2005). Under the plaintiffs suggested interpretation of design immunity, this statutory protection would be lost if one intersection remained to be constructed when additional data became available. This interpretation of design immunity would require the DOT to redesign an improvement after the work is substantially completed, an impractical result given the cost and complexity of such projects. We cannot believe this was the legislature’s intent.

Accordingly, we hold the district court did not err in ruling the DOT was immune under section 669.14(8) as a matter of law. The district court properly dismissed the plaintiffs negligence and section 314.7 theories on this ground. Because these claims were properly dismissed on the basis of design immunity, we do not consider the State’s alternative argument that these claims were also barred by the applicable statute of limitations.

IV. Inverse Condemnation Claim and Statute of Limitations.

A. Issue. We now consider the district court’s ruling that the plaintiffs constitutional takings claim was time barred under Iowa Code section 614.1(4), which establishes a five-year statute of limitations for “injuries to property ... and all other actions not otherwise provided for in this respect.” Iowa Code § 614.1(4); see also Scott v. City of Sioux City, 432 N.W.2d 144, 147 (Iowa 1988) (holding inverse condemnation claims are subject to five-year statute of limitations). The district court ruled K & W had constructive knowledge of its claim after the 1993 flood, and so the limitations period commenced at that time. The plaintiff contends the statute of limitations did not begin to run until the 1999 flood. At the very least, it asserts, there is a factual issue for the jury on when it discovered its claim. Alternatively, K & W argues the damage to its property “was in the nature of a continuing injury for which recovery was permissible for any damages occurring within five years of filing suit.” Before addressing the plaintiffs arguments, it is helpful to understand the nature of an inverse condemnation claim.

B. General principles of inverse condemnation. Inverse condemnation is an action pursued by a property owner who claims a governmental entity has appropriated all or part of the owner’s property interest without a formal condemnation proceeding. Kingsway Cathedral v. Iowa Dep’t of Transp., 711 N.W.2d 6, 9 (Iowa 2006); Harms v. City of Sibley, 702 N.W.2d 91, 97 (Iowa 2005); 9 Patrick J. Rohan & Melvin A. Reskin, Nichols on Eminent Domain § 34.03[1], at 34-45 (rev.3d ed.2005). Generally, a taking does not occur unless the invasion of the property is permanent. See Kingsway Cathedral, 711 N.W.2d at 10 (“The continuance or permanency of the government action sufficient to support the finding of a creation of a servitude has been the determining factor for a finding of a taking.... Absence of such continuance or permanency leaves the property owner with nothing but an action in tort.”); cf. Kelley v. Story County Sheriff, 611 N.W.2d 475, 482 (Iowa 2000) (holding damage to residence door caused by police officer executing arrest warrant was not a taking, distinguishing cases where there has been “a permanent deprivation of property, or creation of a permanent property interest, as contemplated by [the Takings Clause in the Iowa Constitution]” (emphasis added)). Thus, when flooding results from a government project, “the flooding has been held compensable [as a taking] if there is ‘a permanent condition of continual overflow or a permanent ‘liability to intermittent but inevitably recurring overflows.’ ” 4A Julius L. Sackman, Nichols on Eminent Domain § 14.01[2], at 14-6 (rev.3d ed.2005) (emphasis added); accord Phelps v. Bd. of Supervisors, 211 N.W.2d 274, 277 (Iowa 1973); 4 Julius L. Sackman, Nichols on Eminent Domain § 13.16[5], at 13-149 (rev.3d ed.2005). When the flooding is intermittent rather than continual, the fee remains in the property owner, subject to an easement in the governmental entity to overflow the property with water. Phelps, 211 N.W.2d at 276; cf. Bormann v. Bd. of Supervisors, 584 N.W.2d 309, 316 (Iowa 1998) (holding statutory nuisance immunity for farm operation created “an easement in the property affected by the nuisance” in favor of the operator, and constituted a taking).

Consistent with the permanent character of a taking, the injury caused by such governmental action is measured by the diminution in the value of the property. See Kingsway Cathedral, 711 N.W.2d at 10 (“What must be compensated is diminishment of the value of the land.”); 9 Nichols on Eminent Domain § 34.03[3][b], at 34-57. Accordingly, compensation for the taking of an easement is the difference in market value of the property before and after imposition of the easement. Connolly, 465 N.W.2d at 878 (stating damages under theory of inverse condemnation include “loss caused by the first flooding and future damages, ordinarily determined by the difference in the value of the land prior to and after the completion of the public improvement”); accord Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 174-75 (Iowa 2004); 4 Nichols on Eminent Domain § 13.16[5], at 13-150; 9 Nichols on Eminent Domain § 34.03[3][b], at 34-57.

K & W’s inverse condemnation claim is consistent with these principles. K & W alleged the DOT “permanently raised the flood levels of the diversion channel near [the] plaintiffs property making it more susceptible to overflow into the plaintiffs plant for an indefinite period of time into the future.” The plaintiff claimed that, “[a]s a result of the highway improvements,” its property had lost half its value. K & W sought to recover “an amount sufficient to fully compensate [it] for the permanent loss in value of its property.” We now consider whether this claim is barred by the five-year statute of limitations.

C. General principles governing application of statute of limitations. The five-year limitations period begins to run upon accrual of the claim. See Iowa Code § 614.1(4). Generally, a claim accrues when “the wrongful act produces injury to the claimant.” Scott, 432 N.W.2d at 147. This principle is tempered by our discovery rule. See Borchard v. Anderson, 542 N.W.2d 247, 250 (Iowa 1996). Under the discovery rule, commencement of the limitations period is delayed “ ‘until the plaintiff knows or in the exercise of reasonable care should have known both the fact of the injury and its cause.’ ” Rieff v. Evans, 630 N.W.2d 278, 291 (Iowa 2001) (quoting Woodroffe v. Hasenclever, 540 N.W.2d 45, 47 (Iowa 1995)). In other words, the injured party must have “ ‘actual or imputed knowledge of the facts that would support a cause of action.’ ” Id. (quoting State v. Wilson, 573 N.W.2d 248, 253 (Iowa 1998)).

“Knowledge is imputed to a claimant when he gains information sufficient to alert a reasonable person of the need to investigate. As of that date he is on inquiry notice of all facts that would have been disclosed by a reasonably diligent investigation.”

Perkins v. HEA of Iowa, Inc., 651 N.W.2d 40, 44 (Iowa 2002) (quoting Ranney v. Parawax Co., 582 N.W.2d 152, 155 (Iowa 1998)).

D. Accrual of inverse condemnation claim. The State asserts K & W’s inverse condemnation claim accrued at the time of the 1993 flood because the plaintiff knew of its injury and the cause of its injury at that time. The plaintiff argues its inverse condemnation claim did not accrue until the 1999 flood because (1) it did not discover its claim until then, and (2) it was entitled to bring separate, successive actions for each flooding event. Before addressing the issue of what K & W knew or should have known after the 1993 flood, we consider the plaintiffs contention that each flood gave rise to a new claim at which time the statute of limitations began anew.

In a ease involving the flooding of property caused by permanent public improvements, this court stated:

a cause of action for inverse condemnation accrues the first time damage occurs to lands or chattels real which was in fact caused by the improvement.... [T]he person owning the land, crops, or either at that time ... must seek all damages both present and future in a single action.

Connolly, 465 N.W.2d at 878; accord Thomas v. City of Cedar Falls, 223 Iowa 229, 237-38, 272 N.W. 79, 83 (1937) (holding because injury to land caused by dam was permanent, “an action therefore should have been commenced within five years after the completion of the dam or at least within five years after the first injury to the property”). The plaintiff claims this statement is dicta and contrary to the rule that “flood damage is a continuing wrong in which the limitations period runs from the occurrence of each such injury.” K & W relies on our decision in Anderson v. Yearous, 249 N.W.2d 855 (Iowa 1977), a flood case in which we stated: “Where resultant injuries are recurring and successive actions will lie, the limitation period runs from the occurrence of each such injury.” 249 N.W.2d at 860 (emphasis added). As an examination of our nuisance cases will illustrate, this rule does not apply to actions for inverse condemnation because successive actions will not lie for a taking.

Initially, we note that Anderson was a nuisance case, not an inverse condemnation case. In Anderson, the plaintiffs obtained damages and injunctive relief from their neighbor — a private landowner — who had repaired a levee so as to obstruct the natural water flow, resulting in intermittent flooding of the plaintiffs’ land. Id. at 858. The Anderson case is one in a series of decisions by this court discussing when a nuisance or injury is temporary or permanent and the ancillary questions of when a claim for damages accrues and what the appropriate measure of damages is. See, e.g., Weinhold v. Wolff, 555 N.W.2d 454 (Iowa 1996); Hegg v. Hawkeye Tri-County REC, 512 N.W.2d 558 (Iowa 1994); Mel Foster Co. Props., Inc. v. Am. Oil Co., 427 N.W.2d 171 (Iowa 1988); Earl v. Clark, 219 N.W.2d 487 (Iowa 1974); Patz v. Farmegg Prods., Inc., 196 N.W.2d 557 (Iowa 1972); Eppling v. Seuntjens, 254 Iowa 396, 117 N.W.2d 820 (1962); Miller v. Town of Ankeny, 253 Iowa 1055, 114 N.W.2d 910 (1962); Riter v. Keokuk Electro-Metals Co., 248 Iowa 710, 82 N.W.2d 151 (1957); Nall v. Iowa Elec. Co., 246 Iowa 832, 69 N.W.2d 529 (1955); Thomas, 223 Iowa 229, 272 N.W. 79; Wapsipinicon Power Co. v. Waterhouse, 186 Iowa 524, 167 N.W. 628 (1918). A review of these cases reveals some basic principles that are helpful in resolving the statute-of-limitations issue in this case.

Whether an injured party is entitled to bring successive actions for damages or must seek compensation for all injuries in one suit depends on the nature of the injury, and to some degree, the nature of the nuisance. Where injuries from the nuisance are intermittent rather than continual, a property owner may bring successive actions to recover damages for each intermittent injury. See Eppling, 254 Iowa at 404, 117 N.W.2d at 825. In such cases, “the measure of damages is the diminution in rental value caused by the nuisance together with such special damages, as for discomfort and annoyance, as may result therefrom.” Miller, 258 Iowa at 1062, 114 N.W.2d at 914.

In contrast,

“[i]f injuries from a nuisance are of a permanent character and go to the entire value of the estate, there can be but one action, and all damages — past, present, and future — are recoverable therein; in such a case, one recovery is a grant or license to continue the nuisance, and there can be no second recovery for its continuance.”

Weinhold, 555 N.W.2d at 462 (quoting 58 Am.Jur.2d Nuisances § 273 (1989)); accord Mel Foster Co. Props., Inc., 427 N.W.2d at 175; Nall, 246 Iowa at 840, 69 N.W.2d at 533; Wapsipinicon Power Co., 186 Iowa at 527, 167 N.W. at 624. The measure of damages in such a case is the difference in market value of the property immediately before and immediately after the injury-producing nuisance. See Weinhold, 555 N.W.2d at 465 (noting special damages may also be recovered); Mel Foster Co. Props., Inc., 427 N.W.2d at 175; Wapsipinicon Power Co., 186 Iowa at 527, 167 N.W. at 624. As we noted in Wein-hold, “[t]his measure of damages compensates the injured landowner for an interference that is tantamount to a permanent taking.” 555 N.W.2d at 465.

It is at once apparent that conduct resulting in inverse condemnation is analogous to a nuisance causing permanent injury because the injury for which compensation is sought in an inverse condemnation case- — -loss of the plaintiffs interest in the property — is also permanent in nature. See Kingsway Cathedral, 711 N.W.2d at 8. Furthermore, the measure of damages in an inverse condemnation case — diminution in market value — is the same as the measure of damages in a permanent-injury nuisance case. In the latter situation, this court has consistently held that all damages must be sought in one suit. See, e.g., Connolly, 465 N.W.2d at 878; Mel Foster Co. Props., Inc., 427 N.W.2d at 175; Nall, 246 Iowa at 840, 69 N.W.2d at 533-34; Wapsipinicon Power Co., 186 Iowa at 527, 167 N.W. at 624. The same conclusion, that only one action will lie, is equally applicable to inverse condemnation actions because the resulting injury — a taking of the plaintiffs property interest — can only happen once. Therefore, it is not the type of injury for which successive actions will lie. Cf. Scott, 432 N.W.2d at 148 (holding adverse impact on market value of plaintiffs property caused by city zoning ordinance “constituted a single injury”). Thus, this court was correct when it stated in Connolly that in an inverse condemnation case, all damages must be sought “in a single action.” 465 N.W.2d at 878.

Because the successive-actions rule does not apply here, the five-year statute of limitations for the plaintiffs inverse condemnation claim did not automatically begin anew when the plaintiffs property was flooded for a second time in 1999. Therefore, the pertinent inquiry in this case is: when did K & W discover its claim for inverse condemnation? We turn now to a discussion of that issue.

E. Application of discovery rule. In order to succeed on its defense that the plaintiffs inverse condemnation claim is barred by the statute of limitations as a matter of law, the State must demonstrate there is no dispute that K & W had actual or imputed knowledge of “ ‘the fact of [its] injury and its cause’ ” prior to June 11, 1996. See Rieff, 630 N.W.2d at 291. The summary judgment record reveals the plaintiff had actual knowledge by March 1994 that the April 1993 flood that invaded its land was “caused by highway construction in the area.” K & W made this allegation, in the claim it filed with the state appeal board on March 14, 1994 for damage to its truck. Thus, by that date, the plaintiff knew of an injury to its real property and its cause.

The plaintiff argues, however, that although it knew the DOT’s work had caused flooding on its land, it did not know it had been permanently injured. See 3 Julius L. Saekman, Nichols on Eminent Domain § 8.01[4][e], at 8-60 (rev.3d ed.2005) (stating it has been held landowner must institute action within prescribed period “after he or she realizes or should reasonably realize that his or her property has sustained an injury that is permanent in nature ” (emphasis added)). We question whether this argument has any validity under Iowa law. This court has held that “[w]hen an incident occurs causing minor injuries and later more serious injuries appear,” the plaintiffs claim for all injuries accrues for purposes of the statute of limitations upon discovery of the first injury. See LeBeau v. Dimig, 446 N.W.2d 800, 802-03 (Iowa 1989). We have also held “that once claimants have knowledge of facts supporting an actionable claim they have no more than the applicable period of limitations to discover all the theories of action they may wish to pursue in support of that claim.” Sparks v. Metalcraft, Inc., 408 N.W.2d 347, 352 (Iowa 1987). Whether these authorities preclude the plaintiffs argument is a question we need not answer because we are persuaded K & W had imputed knowledge of its permanent injury long before June 11, 1996, five years before it commenced this action.

The district court concluded the plaintiff “should have known that as a result of [the 1993] flood, the value of its land had been significantly lessened.” The court explained the mere fact “the land had been inundated by the 1993 flood” would “substantially reduce the overall value of the property” in the eyes of prospective buyers. We agree. But even more importantly, we also think K & W is charged with knowledge of the information set forth in the Rust report, information that made it clear the plaintiffs property was at a greatly increased risk of flooding as a result of the DOT’s highway construction.

In K & W’s 1994 claim filed with the state appeal board, it asserted, “The flood waters were caused by highway construction in the area.” We conclude it is indisputable that a reasonably diligent investigation of this claim would have led the plaintiff to the Rust report. See Perkins, 651 N.W.2d at 44 (stating injured party is assumed to have knowledge of “ ‘all facts that would have been disclosed by a reasonably diligent investigation’ ” (citation omitted)); Chrischilles v. Griswold, 260 Iowa 453, 462, 150 N.W.2d 94, 100 (1967) (“The question in any case is ... What might [the plaintiff] have known, by the means of information within his reach, with the vigilance which the law requires of him?”). This report was prepared for the DOT, the entity responsible for the construction, and was published on January 25,1994, more than six weeks before K & W filed its claim with the state appeal board and more than a year before the two-year statute of limitations on its tort claim expired. See Iowa Code § 669.13 (requiring tort claim against state to be filed within two years of its accrual). Therefore, the information in the Rust report must be imputed to K & W to determine whether it discovered its claim for inverse condemnation more than five years prior to filing this suit.

The Rust report detailed how the highway construction project altered the flooding potential in the area of the plaintiffs business. It stated the water levels in the diversion channel, which is close to the plaintiffs property, had been increased by the DOT project, an increase that in turn resulted in higher flood profiles. Of particular significance here, the study concluded the flood elevation had increased the most at Lincoln Street where the level was 1.9 feet higher than prior to the highway construction. (K & W’s property is located on Lincoln Street.)

The importance of this information to the plaintiffs discovery of its permanent injury is illustrated by a comparison of the contents of the Rust report to the takings claim made in the present lawsuit. The factual assertions made in K & W’s petition in support of its inverse condemnation claim are derived from and substantiated by the Rust report. In addition, the plaintiffs expert witness relied principally on the Rust report to support his conclusion that “K & W is faced with an increase in flood depth of 33%” and an increase in ■ flood duration of greater than 33%.

K & W seeks to minimize the Rust report conclusions, arguing the highway project was not completed when the report was published in 1994, and as a result, the plaintiff could not have known that future flooding would occur once the highway project was finished. But the Rust report assumed the completion of the project as designed and made projections of flood elevations on that basis. Consequently, the plaintiff could easily have discovered as early as January 1994 that the completion of the project would exacerbate rather than diminish the flooding potential on its property.

In summary, had the plaintiff undertaken a reasonably diligent investigation preparatory to the filing of its March 1994 claim and its later decision not to file suit against the State, it would have uncovered the Rust report. Therefore, the information contained in that report must be imputed to the plaintiff. K & W would have learned from a review of the Rust report that the 1993 flood was not an anomaly but was the result of a permanent and significant increase in flood elevations caused by the DOT’s project. Because this information would have informed the plaintiff of the permanent nature of the injury to its property as well as its cause, the plaintiff is deemed to have discovered its inverse condemnation claim more than five years prior to filing this lawsuit. The district court did not err in granting summary judgment to the defendant on this basis. See Estate of Montag v. TH Agric. & Nutrition Co., 509 N.W.2d 469, 471 (Iowa 1993) (affirming summary judgment for defendant based on plaintiffs inquiry notice of claim); Franzen v. Deere & Co., 377 N.W.2d 660, 661 (Iowa 1985) (same).

V. Summary.

The State has established as a matter of law that it is immune from tort liability for its design and construction of the highway project in question because the highways were constructed “in accordance with a generally recognized engineering ... standard, criterion], or design theory in existence at the time of the construction.” Iowa Code § 669.14(8). Therefore, the district court correctly granted summary judgment to the State on the plaintiffs tort claims.

When a property owner seeks recovery for the diminution in value of its property resulting from intermittent but inevitably recurring flooding caused by a government project, the landowner must file its action for inverse condemnation within five years of the date upon which it discovers the injury to its land and the cause of the injury. Here, the plaintiff was on inquiry notice of its claim after its property was first flooded in 1993. Because this lawsuit was filed more than five years later, its inverse condemnation claim is barred by the statute of limitations. Therefore, the district court correctly granted summary judgment to the State on the plaintiffs takings claim.

AFFIRMED.

      . There is an exception to this general statement for regulatory takings when the offending legislation can be invalidated. See Bormann v. Bd. of Supervisors, 584 N.W.2d 309, 321 (Iowa 1998). The remedy for such "temporary” takings is to declare the legislation invalid, thereby restoring the property owner’s future use and enjoyment of the property, and to compensate the property owner for damages occurring before the statute is invalidated. Id.