author: STREIT, Justice.

text:
    Robert J. MADDEN and Rebecca A. Stutt, Co-Executors of the Estate of Eleanor L. Madden, Deceased, Appellants, v. CITY OF ELDRIDGE, Iowa, Appellee.
    No. 02-0604.
    Supreme Court of Iowa.
    May 7, 2003.

      Bradley L. Norton and Brian T. Fair-field of Norton & Norton, Lowden, for appellants.
    Michael C. Walker of Hopkins & Hueb-ner, Davenport, for appellee.
   STREIT, Justice.

Twenty-four years after an apartment building was constructed, the ceiling of one apartment collapsed, killing a tenant. The estate sued the City of Eldridge claiming it failed to properly inspect the building and failed to enforce the Uniform Building Code when the building was constructed in 1975, resulting in the tenant’s death. The district court found the city was immune because its actions were protected by the discretionary function immunity of Iowa Code section 670.4(3) (1999). The estate appealed. Because we agree with the district court, but upon different grounds, we affirm.

I. Background and Facts

Eleanor L. Madden died in July 1999 when her apartment ceiling collapsed on her. The building was constructed in 1975 in the City of Eldridge. Because the city adopted the Uniform Building Code in 1970, the code applied to the construction of the apartment building. During construction, after the drywall had been installed but before the drywall had been mudded and taped, the contractor did not notify the building inspector that the building was ready for its third inspection as required by the building code. See Uniform Building Code § 304(d)(3) (the inspector “upon notification from the permit holder or his agent, shall make the following inspections.... ”). During the final inspection, the inspector determined he had neither been notified for the wallboard inspection nor had one been performed. By the time the inspector came to the site to do the final inspection, the drywall, including the seams on both the ceilings and walls, had been mudded, taped, and painted. This completely concealed the nails, nail heads, and nail spacing used to hold the ceiling in place. The inspector then issued a certificate of occupancy.

In 1999, the ceiling of Madden’s apartment collapsed because of defects in its construction, including too few nails and improper size and spacing of the nails. Madden’s estate sued the builder, the apartment owner, and the City of El-dridge. The city is the only remaining defendant in this case.

Madden’s estate claimed the city inspector failed to inspect the building as required by the Uniform Building Code and ignored code violations in the building thereby causing the ceiling to collapse killing Madden. In July 2000, the city filed a motion for summary judgment. The city argued it was immune because the building code violations were for latent defects. Iowa Code § 670.4(6) (1999). Madden’s estate (hereinafter “Madden”) resisted and the city filed a supplemental response claiming the city was also immune under the discretionary function immunity of Iowa Code section 670.4(3). The district court denied the motion on the basis of insufficient evidence to show the defects were latent at the time of inspection in 1975.

In February 2001, the city filed a renewed motion for summary judgment and the district court denied it on similar grounds. On February 8, 2002, the city filed a motion for separate adjudication of law points and renewed its motion for summary judgment asserting Madden’s claim of negligent inspection was barred by the statute of repose in Iowa Code section 614.1(11) (1999) or the statute of limitations in sections 614.1(4) and (2) (1999). The city also argued it was immune based upon three grounds: (1) the discretionary function immunity statute under Iowa Code section 670.4(3); (2) latent defects immunity under Iowa Code section 670.4(6); and (3) inspection immunity pursuant to Iowa Code section 670.4(10) (1999). The court denied the city’s motion for summary judgment finding it untimely and the existence of material facts regarding the city’s claim the defects were latent precluded the grant of summary judgment.

At the start of the trial, the trial court reconsidered, on its own motion, the earlier denial of the city’s motion for summary judgment based upon the discretionary function immunity statute. The court granted the city’s motion for summary judgment finding the city’s action in inspecting the building was discretionary and therefore immune from judicial review. See Iowa Code § 670.4(3). Madden appeals.

II. Scope of Review

We review the trial court’s grant of summary judgment for correction of errors of law. Mason v. Schweizer Aircraft Corp., 653 N.W.2d 543, 547 (Iowa 2002). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Iowa R. Civ. P. 1.981(3) (2001). We review the record in the light most favorable to the non-moving party. Mason, 653 N.W.2d at 547.

III. The Merits

Madden claims the trial court erred in applying the discretionary function immunity based upon the conclusion that enforcement of the city’s building code at the time a code violation was discovered was within the building inspector’s discretion. Madden also asserts the trial court erred in granting the city’s untimely motion for summary judgment and in fading to determine the issues raised in the motion were precluded by earlier denials of similar motions. Finally, Madden argues the city did not preserve error as to three of its defenses urged on appeal. We first address whether the trial court had authority to revisit a motion for summary judgment that had previously been denied for untimeliness.

A. Untimely Motion for Summary Judgment

Madden asserts the trial court erred in granting the city’s untimely motion for summary judgment, which had previously been denied by a different judge. The city filed a motion for summary judgment only forty-five days before trial. Iowa Rule of Civil Procedure 1.981(3) (2002) provides motions for summary judgment “shall not be filed less than sixty days prior to the date the case is set for trial, unless otherwise ordered by the court.” In this motion, the city raised the defense of discretionary function immunity for the first time. Judge McKenrick denied the city’s motion for several reasons, including its untimeliness. Judge Kelley, the trial judge, later stated, “having reviewed the statute, the case of Goodman v. City of Le Claire and the Uniform Building Code in effect at the time, [the court] finds that [it] should hear argument on that motion for summary judgment at this time.” See 587 N.W.2d 232 (Iowa 1998).

The trial court had authority to review the motion for summary judgment. When the district court first denied the city’s motion for summary judgment, it did not rule on the issue of the discretionary function immunity. Later, Judge Kelley took this issue up on his own motion. The trial court did not err in revisiting the motion to ensure the issues were suitable for a trial on the merits. As long as the trial court has jurisdiction over the case and the parties, it has authority to correct its own perceived errors. See Iowa Elec. Light & Power Co. v. Lagle, 430 N.W.2d 393, 396 (Iowa 1988). “The action of one judge, sitting as the court, may have the effect of altering or setting aside a previous ruling by another judge sitting as the same court.” State v. Wrage, 279 N.W.2d 4, 6 (Iowa 1979). The trial court’s action in reconsidering a motion for summary judgment is discretionary. We affirm the trial court’s authority to rule on the untimely motion for summary judgment. We now turn to the issue of whether the city has preserved error for our appellate review of three of its defenses.

B. Preservation of Error

On appeal, the city seeks affir-mance of the district court’s ruling based upon three grounds that were rejected by the court in its separate denials of motions for summary judgment. First, the city argues it is immune from liability for allegedly failing to discover a latent defect in the course of an inspection. See Iowa Code § 670.4(6). The city also asserts immunity based upon Iowa Code section 670.4(10) for its actions in the course of conducting an inspection. Finally, the city asserts Madden’s claim is barred by the statute of repose or statute of limitation. See Iowa Code §§ 614.1(11), 614.1(2). Madden argues the city has not preserved error as to each of these three arguments. We disagree.

The city filed a motion for summary judgment arguing it is immune for failure to discover latent defects during the course of an inspection pursuant to Iowa Code section 670.4(6). The city also filed a supplemental response to Madden’s resistance to the city’s motion for summary judgment. In the supplemental response, the city raised the following issues:

1. immunity based upon inspection of the apartment building under Iowa Code section 670.4(10);
2. immunity under the discretionary function exception of Iowa Code section 670.4(3); and
3. the cause of action is barred based upon statute of limitation or statute of repose of Iowa Code sections 614.1(2) and 614.1(11).

The court denied the city’s original motion for summary judgment based upon the defense that the defects were latent. The court did not rule on the merits of the other three grounds asserted in the supplemental response. The city then filed a motion for separate adjudication of law points and renewed motion for summary judgment in which the city asserted the same four arguments listed above. The court ruled the city waived the statute of repose/statute of limitation defense and denied the remainder of the motion. The city made a final attempt to have the court rule on its defenses by filing a 1.904(2) motion. The city asked the court to clarify the factual basis for denying its claim based upon section 670.4(10). The court again refused to rule on the merits of the issue. The city’s 1.904(2) motion was sufficient to preserve error. We address only two of the city’s defenses below.

C. Discretionary Function Immunity

There have been a number of cases recently in which we have discussed and clarified the use of the discretionary function immunity under Iowa Code section 670.4(3). The city is entitled to this immunity only if it satisfies the two-part Berkovitz test. See Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 1958-59, 100 L.Ed.2d 531, 540-41 (1988). The city must show there was an element of judgment or discretion involved in the city’s decision. Graber v. City of Ankeny, 656 N.W.2d 157, 161 (Iowa 2003). If we find the city did not have discretion in its challenged action, the immunity does not apply. If, however, we find the city exercised choice, then we must determine whether its judgment is the type the discretionary function immunity was designed to shield from liability. Id. The general rule is clear; liability is the rule and immunity the exception. Id. (citing Doe v. Cedar Rapids Cmty. Sch. Dist., 652 N.W.2d 439, 443 (Iowa 2002)). That is, we will narrowly construe the discretionary function exception.

The facts are not disputed by either party. At the time the drywall had been installed but before the drywall had been mudded and taped, the contractor did not notify the building inspector so that a lath/wallboard inspection could be performed as required by section 304(d)(3) of the building code. At the time of the final inspection, the inspector determined no wallboard inspection had been requested or performed. By the time the inspector came to the site to do the final inspection, the drywall, including the seams on both the ceilings and walls, had been mudded, taped, and painted. The inspector then issued a certificate of occupancy stating the building complied with the requirements of the code.

The district court concluded the city is immune because the inspector was vested with discretion once the contractor failed to notify the inspector the wallboards were ready for inspection. The court stated, “the city inspector at the time of the final inspection was faced with a dilemma.” The court determined the inspector had a choice between: (1) requiring the contractor to remove the tape and the mud from all the seams of the entire apartment building to allow the inspector to make the required inspection pursuant to section 304(d)(3) of the building code; or (2) rely on the “reputation” of the contractor and subcontractors to conclude the construction complied with the building code. Having found the city exercised its discretion, the district court did not complete the Berkovitz two-step analysis. Assuming ar-guendo the city exercised discretion, we must determine whether the city’s judgment is the type the discretionary function immunity was designed to shield from liability. Graber, 656 N.W.2d at 161.

The city argues the second prong of the Berkovitz test is satisfied because the city adopted the Uniform Building Code to “further public policy concerns.” The city cites the preface of the code which states, “The Uniform Building Code is dedicated to the development of better building construction and greater safety to the public by uniformity in building laws.” The city also cites a specific provision of the code which provides the code was promulgated to “safeguard life or limb, health, and public welfare.” Because the code was adopted to further public policy, the city argues any decision made by the inspector pursuant to the code — even one that violates the code — promoted public policy and .is therefore immune.

Madden argues the city’s decision was not the type the discretionary function immunity was designed to shield from liability. Specifically, Madden contends “[t]he choice of the city inspector to ignore the requirements of the [building code] was not a permissible exercise of policy judgment.” Madden asserts public policy concerns did not drive the inspector’s judgment in this case. Madden argues the inspector was motivated purely by convenience.

While most governmental actions involve some degree of discretion, only those choices based upon the “meaningful exercise of discretion” are immune from liability. Id. at 164. The critical distinction “is the one between a judgment that embodies a professional assessment undertaken pursuant to a policy of settled priorities and a fully discretionary judgment that balances incommensurable values in order to establish those priorities.” Id. (quoting Shansky v. United States, 164 F.3d 688, 694 (1st Cir.1999)). An immune governmental function is “one that weighs competing ideals in order to promote those concerns of paramount importance over the less essential, opposing values.” Id. We must determine whether the city’s action in failing to complete the inspections and issuing the certificate of occupancy is amenable to a policy-based analysis. See id. “The circumstances must show the city legitimately could have considered social, economic, or political policies when making judgments as to the” inspection of this particular apartment building. See id.

In an attempt to satisfy the second prong of the Berkovitz test, the city asserts it is immune because its discretionary action was prompted by safety concerns. Safety can be a legitimate policy consideration under certain circumstances if a municipality actually weighs various competing factors, including safety concerns. Here, however, the city’s cursory attempt to argue safety considerations were the force behind the inspector’s action is not sufficient to confer immunity upon the city. “[W]hether a discretionary act is policy-driven cannot be short-circuited simply by raising the specter of a general safety concern.” Id. at 165 (citing Shansky, 164 F.3d at 693). There must be something more than a generalized concern for safety at the heart of the challenged decision.

There is no evidence in the record to suggest the building inspector engaged in this type of public policy analysis before he decided not to inspect the lath and wall-boards. No legitimate policy-making decisions involving significant judgment were involved. Doe, 652 N.W.2d at 445. The record indicates the building inspector’s action was nothing more than an ad hoc decision, tailored to the particular circumstances before him at the final inspection. See Messerschmidt v. City of Sioux City, 654 N.W.2d 879, 883 (Iowa 2002).

The building inspector’s action, or more accurately inaction, was merely the performance of a routine duty. This public official did not weigh any broad-sweeping policies before he decided not to perform a required inspection. It would be more than fair to suggest the inspector at the very least weighed the potential consequences of not inspecting the adequacy of the drywall construction. There is nothing to show he weighed this as a legitimate policy factor. He merely balanced this unknown safety risk against the cost of insisting on the required inspection. There is no evidence the inspector considered the city’s interest in promoting development in the community or in ensuring safe living standards for the City of El-dridge’s citizens. The decision not to require compliance with the building code and not to perform the required inspections did not involve a “high degree of discretion and judgment ... in weighing alternatives and making choices with respect to public policy and planning.” Id. (citing Doe, 652 N.W.2d at 444). The decision did not reflect “real policy decisions impheating governmental functions.” Doe, 652 N.W.2d at 445.

In sum, the facts do not show policy considerations drove the inspector’s failure to perform an inspection despite his knowledge there could be violations of the building code which could render the building hazardous. The record does not show the manner in which the city performed its inspections was “policy based or susceptible to policy analysis.” See Marlys Bear Med. v. United States, 241 F.3d 1208, 1216 (9th Cir.2001). Under these circumstances, there is no basis for applying the discretionary function immunity to the city’s alleged negligence in inspecting the apartment. We nevertheless affirm the district court’s grant of summary judgment based upon a different statutory immunity provision.

D. Immunity Premised Upon Iowa Code Section 670.4(10)

The city also asserted the defense of immunity for negligent inspections under Iowa Code section 670.4(10). This section provides the city is immune from liability for

[a]ny claim based upon an act or omission of an officer or employee of the municipality, whether by "issuance of permit, inspection, investigation, or otherwise ... if the damage was caused by a third party, event, or property not under the supervision or control of the municipality, unless the act or omission of the officer or employee constitutes actual malice or a criminal offense.

Iowa Code § 670.4(10). Whether this section is applicable in the case before us is a question of law appropriate for determination by the trial court. Messerschmidt, 654 N.W.2d at 884. Madden has claimed the city was negligent “by failing to properly inspect the apartment complex for compliance with the Uniform Building Code in 1975 or for ignoring deficiencies in construction that were not in compliance with the Uniform Building Code.” In other words, Madden alleges the city is liable for its acts or omissions in its inspection of the building. This is precisely the type of claim that is meant to come within the protective ambit of Iowa Code section 670.4(10).

The Iowa Court of Appeals has addressed this statute within the context of a strikingly similar case. In Williams v. Bayers, the City of Davenport inspected a building and issued a permit for use or occupancy. 452 N.W.2d 624 (Iowa Ct.App.1990). While on her way to a beauty appointment, Frances Wagner fell on the steps in the building. Id. at 625. Wagner died after a month of hospitalization. Id. Wagner’s estate sued the owner of the building and the city alleging the city negligently inspected the building. Id. For the same reasons as we cite below, the court of appeals held the city was immune from its actions in inspecting the building. Id. at 626. See also Smith v. City of Bayard, 625 N.W.2d 786, 738 (Iowa 2001) (agreeing with the holding in Williams and applying same principle to issue of whether a municipal dog ordinance constitutes supervision or control).

In the case before us, the apartment building where Eleanor Madden was killed is privately owned. See Williams, 452 N.W.2d at 626. The extent of the city’s involvement in the building was strictly limited to conducting an inspection and issuing a permit. See id. Madden’s death was caused by a third party. See id. Madden does not make any allegations of actual malice or of a criminal offense on the part of the city building inspector. See id.

Neither the city’s inspection nor its findings the building complied with the building code constitute supervision or control over the person or premises as contemplated by section 670.4(10).. See id. The municipality’s action in enforcing the building code “was not the type of supervision or control necessary to bring the case outside of the section 670.4(10) immunity.” See Smith, 625 N.W.2d at 738. Under this statute, liability may attach if the third party caused damage (1) while the municipality was overseeing the third party’s conduct with the power to direct and decide the implementation of the third party’s intentions, or (2) while the municipality was exercising restraining influence over the third party. Hameed v. Brown, 530 N.W.2d 703, 707 (Iowa 1995). The city did not have a duty to supervise the construction of the apartment building. It did not manage or oversee the project. See Black’s Law Dictionary 1453 (7th ed.1999) (“supervision” is the “act of managing, directing, or overseeing persons or projects”). Rather, the city’s job was limited to determining whether the building complied with the uniform building code. Such a determination does not constitute a city’s influence over a contractor. See id. at 330 (“control” means to “exercise power or influence over”). Because the city inspected the building and did not supervise or control the contractor, Iowa Code section 670.4(10) immunizes the city from liability. In light of this conclusion, it is not necessary for us to address any other defenses raised by the city.

IV. Conclusion

The trial court had authority to revisit the untimely motion for summary judgment. The city is not immune under the discretionary function immunity because there is no evidence to show the inspector’s decision to not require compliance with the building code and to not conduct a required inspection was susceptible to a policy-based analysis. However, the city is immune for its actions or omissions pursuant to inspection. The city did not control or supervise the contractor or building owner as contemplated by Iowa Code section 670.4(10). We affirm the trial court’s grant of summary judgment in favor of the city but base our decision upon immunity pursuant to section 670.4(10).

AFFIRMED.

      . Because we resolve this appeal based upon other grounds, we do not address the city’s argument that Madden’s cause of action is barred by the statute of repose and/or statute of limitations.


source: Caselaw Access Project

author: STREET, Justice.

license: Public Domain

text:
    Charles L. KOLBE and Karen S. Kolbe, Appellants, v. STATE of Iowa, Alan E. Kimura, and H. Culver Boldt, Appellees.
    No. 02-0411.
    Supreme Court of Iowa.
    May 7, 2003.

      Wythe Willey of Wythe Willey Law Office, Cedar Rapids, and Matt J. Reilly of White & Johnson, P.C., Cedar Rapids, for appellants.
    James E. Shipman and Allison M. Hef-fern of Simmons, Perrine, Albright & Ell-wood, P.L.C., Cedar Rapids, and Richard M. Tucker of Phelan, Tucker, Mullen, Walker, Tucker & Gelman, L.L.P., Iowa City, for appellees.
   STREET, Justice.

Charles Kolbe was struck by a car driven by Justin Allen Schulte who is blind looking head-on. Kolbe and his wife sued Shulte’s physicians who had given opinions to the Iowa Department of Transportation (IDOT) stating Schulte was competent to drive. The district court found the physi-dans were not negligent because they did not owe a duty to the Kolbes. We agree with the district court and affirm.

I. Background and Facts

Justin Allen Schulte has a common form of inherited juvenile macular degeneration called Stargardt’s Disease. This disease renders Schulte blind looking straight-on. He must use his peripheral vision to see. Doctors Alan Kimura and H. Culver Boldt, state employees, were Schulte’s ophthalmologists. Schulte’s condition has not changed since the initial diagnosis in 1990.

In 1993, when Schulte was fourteen years old, he applied for a learner’s permit to drive. The application was denied because Schulte faded the vision examination. One year later, Schulte requested review of his application for a learner’s permit pursuant to Iowa Administrative Code rule 761-604.13(4) (1995). The earlier denial of Shulte’s application was affirmed. In 1995, Schulte requested another review of the denial of his application for an operator’s permit. Shulte’s ophthalmologist, Dr. Kimura, completed a form to help Schulte obtain a driver’s license. Dr. Kimura filled out the IDOT “Driver Visual Acuity Report” stating Schulte’s visual acuity and that he had normal peripheral vision. In the report, Dr. Kimura said Schulte was competent to drive with some restrictions. Schulte took and passed both the oral driving exam and another driving test that required him to identify traffic signs and other vehicles. The IDOT Medical Advisory Board reviewed Schulte’s case and all four doctors recommended Schulte be given an operator’s permit with some restrictions.

Schulte’s permit authorized him to drive with the following restrictions: Schulte could not drive without corrective lenses, he could not drive when headlights were required, he could not drive in excess of thirty-five miles per hour, and he would have to undergo a driving test with a hearing officer prior to the issuance of a license. In the summer of 1996, Schulte’s license came up for renewal. Dr. Kimura wrote two letters to the IDOT recommending Schulte should be permitted to drive forty-five miles per hour and to drive at night. Schulte took the road test and passed.

The IDOT required a review of Schulte’s license again in May 1997. In 1997, Dr. Kimura moved out of state and he transferred Schulte’s case to Dr. H. Culver Boldt. After this point, Dr. Kimura was no longer involved in Schulte’s case. In March 1997, Dr. Boldt sent a letter to the IDOT stating it was reasonable for Schulte to have his restricted driving privileges renewed. Dr. Boldt also stated Schulte was competent to drive. Again, Schulte, now eighteen years old, took the road test and passed.

Almost three months after Schulte passed his last road test renewing his driving privileges, he struck a bicyclist causing serious injuries. Charles and Susan Kolbe were riding bicycles on a two-lane, paved road. They were moving east in the eastbound lane “well to the right of the center line of the roadway.” Schulte was driving between forty-five and fifty miles per hour eastbound on the same road. Using his peripheral vision, Schulte first saw Susan when he was about 150 to 200 feet behind her. As Schulte passed Susan, he slowed down to about ten miles per hour and nearly hit her. Schulte, not seeing Charles, continued driving in a straight line and increased his speed to forty-five to fifty miles per hour. Schulte hit Charles driving in excess of his speed restriction. Charles was thrown into the air over the front of Schulte’s car, hit the left side of the windshield and roof, and then landed on the ground beyond the car. Charles was severely injured.

Kolbes sued Schulte, his parents, and their insurers. These parties have settled and are no longer a part of the present action. Schulte also sued the IDOT asserting it was negligent in issuing an operator’s permit to Schulte. Finding the IDOT did not have a duty to the Kolbes, the district court granted the IDOT’s motion for summary judgment and we affirmed on appeal. Kolbe v. State, 625 N.W.2d 721 (Iowa 2001). The case before us centers on Kolbes’ suit against Schulte’s doctors. Kolbes allege Schulte’s doctors were negligent in rendering opinions to the IDOT certifying Schulte’s competence to drive. Kolbes assert the State of Iowa, as the doctors’ employer, is liable under the theory of respondeat superior. The state filed a motion for summary judgment which the district court granted. The court concluded the doctors did not have a duty to the Kolbes and as such there can be no liability. Kolbes appeal.

II. Scope of Review

We review the trial court’s grant of summary judgment for correction of errors of law. Mason v. Schweizer Aircraft Corp., 653 N.W.2d 543, 547 (Iowa 2002). Summary judgment is appropriate when “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.” Iowa R. Civ. P. 1.981(3) (2001). We review the record in the light most favorable to the non-moving party. Mason, 653 N.W.2d at 547.

III. Merits

The central issue in this appeal is whether a physician owes a duty to persons not within the physician/patient relationship. Specifically, we focus on whether physicians owe a duty to unknown third parties when rendering an opinion to the Iowa Department of Transportation regarding a patient’s competency to drive. Under common law, to succeed on their negligence claim, Kolbes must prove four elements: 1) Schulte’s physicians owed Kolbes a legal duty; 2) the physicians breached that duty; 3) the breach was a proximate cause of Charles’s injuries; and 4) the amount of damages. Kolbe, 625 N.W.2d at 725. The physicians argue there was no duty or, alternatively, Kolbes did not establish proximate cause.

The existence of a legal duty is a question of law. J.A.H. v. Wadle & Assocs., 589 N.W.2d 256, 258 (Iowa 1999). In Kolbes’ suit against the IDOT, we articulated the factors to consider in determining whether there is a legal duty:

1. The relationship between the parties;
2. Reasonable foreseeability of harm to the person who is injured; and
3. Public policy considerations.

Kolbe, 625 N.W.2d at 728 (citing 589 N.W.2d at 258). We stated “[w]e use these factors under a balancing approach and not as three distinct and necessary elements. In the end, whether a duty exists is a policy decision.Id. (citation omitted). We must determine whether Schulte’s physicians had a legal duty toward Kolbes. The district court found the physicians did not have a duty to Kolbes. For the reasons stated below, we agree with the district court.

A. Special Relationship

The general rule is that a person has no duty to prevent a third person from causing harm to another. Kelly v. Sinclair Oil Corp., 476 N.W.2d 341, 354 (Iowa 1991). However, a duty may be present when a special relationship exists between the parties. Keller v. State, 475 N.W.2d 174, 179 (Iowa 1991). A special relationship may exist where there is an alleged failure of a defendant to “aid or protect another person or to control the conduct of a third party.” Kolbe, 625 N.W.2d at 728. Under these circumstances, section 315 of the Restatement (Second) of Torts applies, stating:

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.

Restatement (Second) of Torts § 315 (1965).

Though privity alone is not determinative of whether a duty exists, in the present case Schulte’s physicians and Kolbes were not in privity. See J.A.H., 589 N.W.2d at 261. Despite the lack of privity, Kolbes allege the doctors had a duty to protect Charles and the public at large from any danger Schulte posed to other motorists and pedestrians. However, there is no more of a special relationship between Shulte’s physicians and Kolbes than there is between the physicians and the entire driving public. No relation exists between the physicians and Kolbes that is sufficiently close and direct to support a legal claim against the physicians for Charles’s injuries.

Kolbes also allege the physicians had a duty to control Schulte and prevent him from driving. The physicians neither had a duty to control Schulte’s actions nor to protect Kolbes. The Restatement (Second) of Torts sections 316 through 319 discuss the types of special relations that are contemplated as creating a duty to a third party. This case is not about the duty of a parent to control a child, the duty of a master to control a servant, the duty of a possessor of land to control a licensee, or the duty of those in charge of a person having dangerous propensities. Rather, the physicians’ involvement with Schulte was the same as their involvement would have been with any other patient. The physicians performed medical examinations, treated Schulte for his condition, and advised him of the effects of Stargardt’s Disease. This type of involvement is not tantamount to exercising control over the patient or preventing the patient from harming others. There is no evidence in the record to prove the existence of a special relationship between Schulte and his physicians so as to provide Kolbes’ with a cause of action against the physicians for Charles’s injuries.

B. Foreseeability

In addition to considering the nature of the relationship between the parties, we also reflect on the foreseeability of the harm to the injured person. Kolbes argue the physicians should have recognized the need to protect the public and assumed the duty to protect it from Schulte. Specifically, Kolbes assert the physicians should have foreseen that their recommendation to the department of transportation of Schulte’s competence to drive would have resulted in Schulte obtaining an operator’s permit and ultimately in injuring Kolbe.

The physicians were not responsible for issuing the operator’s permit. That decision was made by the IDOT. See Iowa Admin. Code r. 761-604.1(1) (1995). The Iowa Department of Transportation has authority, under appropriate circumstances, to issue an operator’s license to a person with Stargardt’s Disease. See Iowa Admin. Code r. 761-604.13(4) (1995). The recommendation of Schulte’s physicians was but one factor considered by the IDOT in its decision to issue Schulte an operator’s permit. The IDOT also considered the opinion of an independent medical review board in determining whether Schulte was competent to drive. In providing the IDOT with Schulte’s visual acuity reports and their professional medical recommendations, the physicians could not have foreseen whether the IDOT would ultimately issue Schulte the permit.

The IDOT was more directly involved than Schulte’s physicians in deciding whether Schulte satisfied the requirements for an operator’s permit. We previously found the IDOT did not owe a duty to Kolbes in making this decision. Kolbe, 625 N.W.2d at 730. In so finding, we rejected Kolbes’ attempt to claim membership in a special, identifiable group, i.e., the public at large, to which the IDOT allegedly owed a duty of due care. Id. In Kolbe, we said the state cannot be liable unless there is a special relationship existing between the victim and the state. Id. Kolbes did not assert the particular circumstances of their case gave rise to a special relationship. Id. We did not say that by virtue of the IDOT’s issuance of an operator’s permit to Schulte, it was foreseeable that Charles would be injured. Id. In the case before us, Schulte’s physicians’ involvement is even more attenuated than that of the IDOT. When the physicians recommended Schulte as competent to drive, it was not foreseeable such opinion would cause injury to Charles.

Kolbes have not proven there was a special relationship between Schulte’s physicians and Kolbes. They have also failed to show it was reasonably foreseeable that Kolbe would be injured by Schulte. More important than these two issues is the issue of the public policy concerns implicated by imposing liability on physicians under such circumstances. As we stated above, the existence of a duty depends largely on public policy. See Kolbe, 625 N.W.2d at 728 (citing J.A.H., 589 N.W.2d at 258). We now turn to this consideration.

C. Public Policy Considerations

Kolbes significantly rely upon our holding in Freese v. Lemmon to argue Schulte’s physicians owed Charles a duty. 210 N.W.2d 576 (Iowa 1973). However, our recent holding in Schmidt v. Mahoney overruled Freese to the extent it held an injured person had stated a claim for liability against a physician under sections 311 and 324A of the Restatement (Second) of Torts. Schmidt, 659 N.W.2d 552, 553 (Iowa 2003). We begin with a summary of the Freese case. In Freese, a pedestrian brought an action against a motorist and his physician to recover for damages sustained when the motorist struck the pedestrian as the result of a seizure. In determining whether the physician had a duty to the injured pedestrian, the Freese majority relied upon Restatement (Second) of Torts section 311 which provides,

(1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results
(a) to the other, or
(b) to such third persons as the actor should expect to be put in peril by the action taken.
(2) Such negligence may consist of failure to exercise reasonable care
(a) in ascertaining the accuracy of the information, or
(b) in the manner in which it is communicated.

Restatement (Second) of Torts § 311. In Freese, a majority of the court held that a petition alleging the physician’s negligence in counseling his patient concerning a seizure disorder stated a valid claim on the part of the injured third party with whom the seizure patient collided on the highway. Freese, 210 N.W.2d at 579-80. Recently, in Schmidt v. Mahoney, we were called upon to revisit our holding in Freese. In Schmidt, we stated the application of the “broad general rules espoused in section 311 and section 324A of the Restatement ... to a claim by a member of the general public would run counter to” public policy considerations. Schmidt, 659 N.W.2d at 555.

In Schmidt, the plaintiff was injured when an approaching driver had a seizure, lost control of her car, and crashed into the plaintiffs car. Id. at 553. The physician advised his patient regarding her ability to operate a motor vehicle. He prescribed medications and otherwise treated his patient’s seizure disorder. The physician, however, did not warn his patient of the danger her seizure disorder imposed upon her ability to drive a car. In fact, the physician advised his patient she could safely drive a car. The physician also provided to the Iowa Department of Transportation his recommendation that his patient was competent to drive.

The plaintiff in Schmidt argued the resolution of his case had already been decided by Freese. Dr. Mahoney asserted that since our decision in Freese, we have retreated from our holding stating that it is an unwarranted intrusion on the doctor/patient relationship to recognize a right of action in favor of a member of the general public based upon actions of a health-care provider in directing the activities of a patient. For example, in J.A.H. v. Wadle & Associates, we concluded a physician does not have a duty to a nonpatient third party in the setting of a medical malpractice action. 589 N.W.2d at 264-65. We stated,

A number of considerations relevant to the duty analysis strongly militate against imposition of duty here.... Concern about how a course of treatment might affect third parties could easily influence the way in which therapists treat their patients. Under a rule imposing a duty of care to third parties, therapists would feel compelled to consider the possible effects of treatment choices on third parties and would have an incentive to compromise their treatment because of the threatened liability. This would be fundamentally inconsistent with the therapist’s obligation to the patient.... Hoping to avoid liability to third parties, ... a therapist might instead find it necessary to deviate from the treatment the therapist would normally provide, to the patient’s ultimate detriment. This would exact an intolerably high price from the patient-therapist relationship and would be destructive of that relationship.

J.A.H., 589 N.W.2d at 262-68 (quoting Doe v. McKay, 188 Ill.2d 272, 233 Ill.Dec. 310, 700 N.E.2d 1018, 1023-24 (1998)). In Schmidt we cited Leonard v. State, a similar case dealing with the acts and omissions of mental health care providers. Leonard, 491 N.W.2d 508 (Iowa 1992). In Leonard, we recognized a special relationship exists between physician and patient, but determined “the risks to the general public posed by the negligent release of dangerous mental patients would be far outweighed by the disservice to the general public if treating physicians were subject to civil liability for discharge decisions.” Id. at 512.

In finding a physician does not owe a duty to unknown third persons, we heavily relied upon these public policy reasons. It is of utmost importance that we do not compromise the physician’s first loyalty and duty to his or her patient. See Webb v. Jarvis, 575 N.E.2d 992, 997 (Ind.1991); Praesel v. Johnson, 967 S.W.2d 391, 396 (Tex.Sup.Ct.1998) (rejecting Freese and holding physicians do not have a common law duty to third parties to warn epileptic patients not to drive).

[I]t is highly likely ... physicians treating patients with seizure disorders will become reluctant to allow them to drive or engage in any other activity in which a seizure could possibly harm a third party. In order to curtail liability, physicians may become prone to make overly restrictive recommendations concerning the activities of their patients and will exercise their role as reporters to the department of transportation in an inflexible manner not in their patient’s best interests.

Schmidt, 659 N.W.2d at 555. The public policy concerns at the heart of our decisions in Schmidt and Kolbe are equally applicable to the case before us.

It is not the physician’s duty to protect all third parties who might come into contact with the physician’s patient. Estate of Witthoeft v. Kiskaddon, 450 Pa.Super. 364, 676 A.2d 1223, 1225 (1996). Imposing a duty upon physicians under the circumstances before us would impinge upon the physician’s primary obligation, which is to treat his or her patient. See Cram v. Howell, 680 N.E.2d 1096 (Ind.1997). To discount the importance of foreseeability in cases such as the one before us is to extend liability limitlessly to treating physicians vis-a-vis third party victims. See Estate of Witthoeft, 676 A.2d at 1225. The same public policy concerns we had in Kolbe are relevant here.

A recognition of the tort for “negligent issuance of a driver’s license” would likely chill the State’s licensing determinations, making it unreasonably difficult for certain segments of our society to secure a driver’s license. Senior citizens with declining vision and visually impaired citizens, both of whom would ordinarily pass existing stringent state requirements, would face the possibility of not driving at all.

Kolbe, 625 N.W.2d at 730. Such unlimited exposure to liability could chill physicians’ willingness to recommend driver’s licensing for any patient who is even visually impaired. Imposition of liability would create physicians’ divided loyalty between the welfare of patients, to whom they have a primary responsibility, and the welfare of the unknown public.

IV. Conclusion

Our decision today is consistent with and compelled by public policy considerations and our previous holding in Schmidt. As such, we agree with the district court that Schulte’s physicians owed no duty to Kolbes. Kolbes were not foreseeable victims of the physicians’ action or inactions. Kolbes did not establish a special relationship existed between them and the physicians. At the public policy level, a physician does not have a duty to “protect!] the entire public from any harm that might result from his or her patient’s actions.” Crosby by Crosby v. Sultz, 405 Pa.Super. 527, 592 A.2d 1337, 1344 (1991). Rather, physicians must be able to fulfill their duty to patients without fear of third party liability claims for the acts of patients over which physicians have no control. Webb, 575 N.E.2d at 997; Crosby by Crosby, 592 A.2d at 1344. Because the physicians did not owe a duty to protect Kolbes, the negligence action fails. The motion for summary judgment was properly granted and we affirm.

AFFIRMED.

      . According to the American Macular Degeneration Foundation, Stargardt’s Disease affects one in 10,000 people and usually manifests itself between the ages of seven and twelve.
      Scientists’ current theory is that Stargardt’s causes the eye’s central vision to deteriorate because the rod cells just outside the macu-la erode and this eventually harms the retinal pigment epithelium (RPE). As the RPE fails, the disease may spread to the macu-la’s cone cells, causing macular degeneration’s characteristic loss of central vision. Peripheral vision generally remains. Presently there is no cure for Stargardt’s Disease, nor is there any treatment that is proven to improve visual loss or to retard the progression of the disease.
      American Macular Degeneration Foundation, Stargardt's Disease available at http://macu-lar.org/stargardts.html (last visited March 25, 2003).

      . Iowa Administrative Code rule 761-604.13(4) provides, in part:

        a. An applicant ... who cannot meet the vision standards in subrule 604.13(2) may submit a written request for review by an informal settlement officer.

        b. Based upon consideration of the applicant’s vision screening results or vision report, driving test and driving record, the written recommendation of the applicant's licensed vision specialist, and traffic conditions in the vicinity of the applicant's residence, the officer may recommend issuing a license with restrictions suitable to the applicant’s capabilities. However:
      (1) An applicant who cannot attain a visual acuity of 20/100 with both eyes or with the better eye may be considered for licensing only after recommendation by the medical advisory board....
      Iowa Admin. Code r. 761-604.13(4) (1995).


author: CARTER, Justice.

text:
    JAMES ENTERPRISES, INC. d/b/a Cyclone Truck Stop, Clyde’s of Ames, Inc. d/b/a Wallaby’s, Ye Olde, L.L.C. d/b/a Dublin Bay, De Paula, Inc. d/b/a Café Beaudelaire International Cuisine & Bar, Steve Soesbe d/b/a Tradewinds Café, Rozeboom Foods, Inc. d/b/a Whiskey River, and Tom Zmolek d/b/a Peoples Bar & Grille, Appellants, v. CITY OF AMES, Iowa, Appellee. Lovish Bederazack d/b/a Café Lovish, Intervenor-Appellant, v. City of Ames, Iowa, Appellee.
    No. 02-0415.
    Supreme Court of Iowa.
    May 7, 2003.

      Fred L. Dorr of Wasker, Dorr, Wimmer & Marcouiller, P.C., Des Moines, for appellants.
    John R. Klaus, City Attorney, Ames, for appellee.
   CARTER, Justice.

Plaintiffs and intervenor, who are the owners of food service establishments in the City of Ames, appeal from an adverse judgment in a claim seeking declaratory and injunctive relief that would preclude enforcement of a local ordinance banning smoking. It is the contention of the food service establishments that the ordinance in question contravenes controlling state law. The district court rejected that contention and upheld enforcement of the ordinance. After reviewing the record and considering the arguments presented, we reverse the judgment of the district court.

Plaintiffs and intervenor are various owners and operators of business establishments in the city. Prior to the enactment of chapter 21A of the Municipal Code of the city, plaintiffs were able to accommodate both smokers and nonsmokers on their premises, where food and beverages were also served. Chapter 21A prohibits smoking in any public place, with a few exceptions, so that as a general rule smoking is prohibited in food service establishments between the hours of 6 a.m. and 8:30 p.m.

Plaintiffs filed a petition for declaratory judgment and a request for a temporary injunction in which the intervenor joined. A hearing was held on the request for the temporary injunction, which was denied. Thereafter, plaintiffs filed a motion for summary judgment, which was resisted by the city. After a hearing on the matter, the district court denied the motion for summary judgment, and based on the legal conclusions that were reached in ruling on that motion, the court upheld the city’s contentions on the merits and dismissed the claims of plaintiff and intervenor. They have appealed.

I. Scope of Review.

The scope of review of summary judgment rulings is for correction of errors at law. Garofalo v. Lambda Chi Alpha Fraternity, 616 N.W.2d 647, 650 (Iowa 2000). The court views the factual record in the light most favorable to the resisting party, affording the party all reasonable inferences. Id. at 649. Summary judgment is only proper if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3). If the conflict in the record concerns only legal consequences of undisputed facts or whether a particular duty arises out of the parties’ relationships, the matter is properly resolved on summary judgment. Garofalo, 616 N.W.2d at 650.

II. Whether the District Court Erred in Finding Iowa Code Section 142B.2(2) Does Not Restrict the Extent to Which Municipal Ordinances May Prohibit Smoking in Public Places.

A. Arguments. Plaintiffs and interve-nor contend the district court’s failure to restrict the scope of municipal ordinances creates inherent inconsistencies. They further assert that such inconsistencies create a dilemma for those with custody or control of public places due to the conflict between rights granted under state law and local restrictions. The city argues the district court correctly found its ability to prohibit smoking is not restricted by a state statute. The city further argues such a position is consistent with home rule powers.

B. Analysis. Iowa Code chapter 142B.2 prohibits smoking in public places, subject to certain exceptions:

1. A person shall not smoke in a public place or in a public meeting except in a designated smoking area. This prohibition does not apply in cases in which an entire room or hall is used for a private social function and seating arrangements are under the control of the sponsor of the function and not of the proprietor or person in charge of the place....
2. Smoking areas may be designated by persons having custody or control of public places, except in places in which smoking is prohibited by the fire marshal or by other law, ordinance, or regulation.
3. Where smoking areas are designated, existing physical barriers and existing ventilation systems shall be used to minimize the toxic effect of smoke in adjacent nonsmoking areas. In the case of public places consisting of a single room, the provisions of this law shall be considered met if one side of the room is reserved and posted as a no-smoking area. No public place other than a bar shall be designated as a smoking area in its entirety. If a bar has within its premises a nonsmoking area, this designation shall be posted on all entrances normally used by the public.
If the public place is subject to any state inspection process or under contract with the state, the person performing the inspection shall check for compliance with the posting requirement.

Iowa Code § 142B.2 (2001) (emphasis added). Violators of section 142B.2 are subject to a civil fine. Iowa Code § 142B.6. That section further provides:

Enforcement of this chapter shall be implemented in an equitable manner throughout the state. For the purpose of equitable and uniform implementation, application, and enforcement of state and local laws and regulations, the provisions of this chapter shall supersede any local law or regulation which is inconsistent with or conflicts with the provisions of this chapter.

Iowa Code § 142B.6 (emphasis added).

While the legislature has obviously spoken to some degree of specificity, the city argues that it had the authority under the home rule power to prohibit smoking in public places under local government jurisdiction. The Iowa Constitution is the source of the municipalities’ home rule power:

Municipal corporations are granted home rule power and authority, not inconsistent with the laws of the general assembly, to determine their local affairs and government, except that they shall not have power to levy any tax unless expressly authorized by the general assembly.

Iowa Const, art. Ill, § 38A.

In interpreting cities’ home rule power, the court has recognized that cities have “the authority to act unless a particular power has been denied them by statute.” Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 568 (Iowa 2000) (quoting City of Des Moines v. Master Builders of Iowa, 498 N.W.2d 702, 703-04 (Iowa 1993)).

The home rule scheme envisions the possibility that state and local governments will regulate the same areas:

A city may not set standards and requirements which are lower or less stringent than those imposed by state law, but may set standards and requirements which are higher or more stringent than those imposed by state law, unless a state law provides otherwise.

Iowa Code § 364.3(3) (emphasis added).

Notably, the grant of authority to local government to establish stricter standards by ordinance than those provided in state statutes dealing with the same subject is expressly curtailed if a state law provides otherwise. Clearly, the provision in the ordinance of the city that prohibits designated smoking areas conflicts with the provisions of section 142B.2, which allows such designation. We are convinced that the language of Iowa Code section 142B.6, which states “[f]or the purpose of equitable and uniform implementation, application, and enforcement of state and local laws and regulations, the provisions of this chapter shall supersede any local law or regulation which is inconsistent with or conflicts with the provisions of this chapter,” supersedes the conflicting provisions of the city ordinance.

When provisions of different statutes relating to the same subject matter conflict, it is our responsibility to resolve the conflict using settled rules of interpretation. In re Estate of Bliven, 236 N.W.2d 366, 369 (Iowa 1975); State v. Bartz, 224 N.W.2d 632, 635 (Iowa 1974); Goergen v. State Tax Comm’n, 165 N.W.2d 782, 785-86 (Iowa 1969); 2A Sutherland, Statutory Construction §§ 51.02-51.03 (Sands 4th ed.1973). We find that the language of section 142B.6 should curtail any grant of local authority that may be supplied by section 142B.2(2) for two reasons. First, that section comes later in the chapter and purports to govern everything in the chapter that comes before it. Second, it appears that section 142B.2(2) was enacted in 1987, and section 142B.6 was enacted in 1990. Iowa Code section 4.8 provides:

If statutes enacted at the same or different sessions of the legislature are irreconcilable, the statute latest in date of enactment by the general assembly prevails. If provisions of the same Act are irreconcilable, the provision listed last in the Act prevails.

Because section 142B.6 is the later enactment, its provisions should govern over any conflicting language in section 142B.2.

We have considered all issues presented and conclude that the judgment of the district court should be reversed. The case is remanded to that court for a grant of declaratory and injunctive relief precluding enforcement of those provisions of the local ordinance that are beyond the limitations of the city’s authority established by this decision.

REVERSED AND REMANDED.

      . "Public place” is defined in Iowa Code section 142B.1(3) and includes "all restaurants with a seating capacity greater than fifty.” The parties agree that plaintiffs’ establishments qualify as public places.

      . 1987 Iowa Acts ch. 219, § 2.

      . 1990 Iowa Acts ch. 1189, § 3.


text:
    STATE of Iowa, Appellee, v. Chadwick Eugene TRADER, Appellant.
    No. 01-1763.
    Supreme Court of Iowa.
    May 7, 2003.

      Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, John P. Sarcone, County Attorney, and Jaki L. Livingston, Assistant County Attorney, for appellee.
   CARTER, Justice.

Defendant, Chadwick E. Trader, appeals from an order reconsidering and increasing his original sentence for third-degree burglary involving an unattended motor vehicle. At the time the trial information was filed, the offense to which defendant ultimately pled guilty was a class “D” felony. However, prior to the entry of his plea and subsequent sentencing, that statute was amended so as to provide that the offense was an aggravated misdemeanor if the subject of the burglary was an unattended motor vehicle.

At the time of sentencing, the court was cognizant of the amendment and sentenced defendant for conviction of an aggravated misdemeanor. Later, when the State called the court’s attention to the fact that defendant had a prior conviction for burglary of a motor vehicle, the court reconsidered and increased defendant’s sentence to that provided for a class “D” felony. The court of appeals affirmed the district court’s increased punishment. Upon reviewing the record and considering the arguments presented, we vacate the decision of the court of appeals and reverse the judgment of the district court.

The defendant was charged with third-degree burglary involving an unattended motor vehicle committed on May 23, 2001. At the time the trial information was filed, that offense was a class “D” felony. The statute was soon amended, effective July 1, 2001. The amended statute provided:

1. All burglary which is not burglary in the first degree or burglary in the second degree is burglary in the third degree. Burglary in the third degree is a class “D” felony, except as provided in subsection 2.
2. Burglary in the third degree involving a burglary of an unoccupied motor vehicle or motor truck as defined in section 321.1, or a vessel defined in seetion 462A.2, is an aggravated misdemeanor for a first offense. A second or subsequent conviction under this subsection is punishable under subsection 1.

2001 Iowa Acts ch. 165, § 1 (amending Iowa Code § 713.6A). Defendant pled guilty to the offense on July 20, 2001, and was sentenced on August 30, 2001, both of those dates falling after the amended statute became effective.

Iowa Code section 4.13 provides:
If the penalty, forfeiture, or punishment for any offense is reduced by a reenactment, revision, or amendment of a statute, the penalty, forfeiture, or punishment if not already imposed shall be imposed according to the statute as amended.

We have recognized that an amendment to a sentencing statute that reduces the penalty for an offense committed prior to its effective date must be applied if the statute is effective at the time of sentencing. State v. Chrisman, 514 N.W.2d 57, 61 (Iowa 1994); State v. Bousman, 278 N.W.2d 15,16 (Iowa 1979). We agree with that interpretation of the statute. If the amendment to section 713.6A reduced the punishment for the offense with which defendant was charged, he was entitled to be sentenced in accordance with the newly enacted law. At defendant’s original sentencing, the court agreed that the offense was an aggravated misdemeanor and sentenced defendant accordingly. Later, the State informed the court that defendant had a prior conviction for the same offense. More than two months later, the court, relying on the second sentence of paragraph 2 of the amended statute, reconsidered and increased defendant’s sentence to that provided for a class “D” felony.

In upholding the district court’s upward revision of defendant’s sentence, the court of appeals concluded that the amended statute did not reduce the penalty for defendant’s offense because of the fact that he committed that offense as a second offender. That conclusion fails to take into consideration that, at the time of defendant’s guilty plea and sentencing, the court was not empowered to sentence defendant under the enhancement provision of the revised statute because defendant had not been charged as a prior offender in the trial information. Our Iowa Rules of Criminal Procedure provide:

If the offense charged is one for which the defendant, if convicted, will be subject by reason of the Code to an increased penalty because of prior convictions, the allegation of such convictions, if any, shall be contained in the indictment.

Iowa R.Crim. P. 2.6(5). We have recognized that this procedure extends the requirements of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to sentencing enhancements based on prior convictions. State v. Jacobs, 644 N.W.2d 695, 698 (Iowa 2001). Consequently, if the State intended to take advantage of the enhancement provision of the amended statute, it was incumbent on it to amend the trial information to allege the prior offense and then either establish that offense at trial on a supplemental information or obtain a plea of guilty to an enhanced charge of third-degree burglary.

Based on the trial information that existed at the time of defendant’s plea and sentencing, the proper sentence was that provided for an aggravated misdemeanor. That was the sentence imposed at the original sentencing proceeding. It was a legal sentence, and the district court erred in altering it more than two months later.

Defendant was granted probation by the sentencing judge, but was required to spend time at the Fort Des Moines Residential Correctional Facility. In the court’s sentencing order, it was provided that the defendant should not receive credit for time served at that residential correctional facility if his probation was revoked. That portion of the sentence was also in error because Iowa Code section 907.3(3) provides that “[a] person so committed [to a community correctional residential treatment facility] who has probation revoked shall be given credit for such time served.” In resentencing defendant, the court shall grant the credit which that statute requires.

Based on our conclusions, we vacate the decision of the court of appeals, reverse the district court’s sentencing order, and remand the case to that court for the resentencing of defendant for conviction of an aggravated misdemeanor.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.


text:
    STATE of Iowa, Appellee, v. Lance Troy HEUSER, Appellant.
    No. 01-2027.
    Supreme Court of Iowa.
    May 7, 2003.

      Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Timothy N. Schott, County Attorney, and Stephen J. Lickiss, Assistant County Attorney, for appellee.
   STREIT, Justice.

A man claims his allergies drove him on a shopping spree to three different stores to buy cold medication and lithium batteries. Lance Heuser was convicted of two counts of possession of a precursor with intent to manufacture methamphetamine. Heuser argues the police officers did not have reasonable cause to stop the van in which Heuser and his companion were driving and there was insufficient evidence to support the convictions. Heuser also contends the trial court erred in admitting the labels on the cold medication boxes and batteries. Finally, Heuser asserts his trial counsel was ineffective for not allowing him to testify on his own behalf. Because there was reasonable cause to stop the van, the labels are admissible, trial counsel was not ineffective, and there was sufficient evidence to support the jury’s convictions, we affirm.

I. Background and Facts

A Target store employee notified police that two people had purchased numerous packages of over-the-counter cold medication containing pseudoephedrine hydrochloride. The employee gave the police a description of the man and woman, the van they were driving, and the license plate number. The police located the van at Wal-Mart where they saw the woman go into Wal-Mart and come out with her purchases. The couple then drove to Wal-greens. The man went into the store. The police contacted the store and asked what the man bought. The employee saw the man purchase several boxes of cold medication containing pseudoephedrine hydrochloride and ask about lithium batteries. The police stopped the van a short time later. The man was identified as Lance Heuser.

The woman consented to a search of the van. Inside, the police found eight packages of various cold medications and several loose blister packs of medicine. In total, the officers found 312 tablets containing ephedrine or pseudoephedrine hydrochloride. The police also found twelve AA Energizer lithium batteries. Heuser and his companion were each charged with two counts of possession of a precursor with intent to manufacture methamphetamine in violation of Iowa Code sections 124.401(4)(a), (b), (f) (2001).

Heuser gave explanations for his possession of the cold medication and lithium batteries. After the couple gave conflicting stories about their shopping spree, Heuser explained the cold medication was for his personal use. He claimed he needed the medicine for his allergies but offered no reason for why he needed so much. Heuser’s companion said she, too, had very bad allergies and needed the medication. As to the AA batteries, Heu-ser said he bought them that day at Kmart for a smoke - detector he had with him in the van. However, the smoke detector required a nine-volt battery.

Heuser filed a motion to suppress all of the evidence the officers found during the search of the van. The court denied Heu-ser’s motion. During trial, over Heuser’s objections, the State offered into evidence the labels from the boxes of cold medication and the batteries. Though characterizing the labels as hearsay, the State argued the labels are admissible hearsay under the residual exception to the hearsay rule. See Iowa R. Evid. 5.803(24). Heuser objected to the admission of these labels asserting the labels did not fit within any of the exceptions to the hearsay rule. The district court concluded the labels should be admitted under the “market reports, commercial publications” exception of Iowa Rule of Evidence 5.803(17). Heu-ser appeals.

II. Merits

Heuser asserts the trial court erred in denying his motion to suppress for lack of reasonable cause to stop the van. He contends the court erred in admitting the labels because they are inadmissible hearsay and impinge upon his constitutional right of confrontation. Heuser also argues there was insufficient evidence to support his convictions. Finally, he contends his trial counsel was ineffective for not allowing him to testify on his own behalf. We address each argument in turn.

A. Legality of the Stop

Heuser argues the trial court erred in overruling his motion to suppress the evidence obtained from the stop of the vehicle. At the suppression hearing, Heu-ser argued the police did not have reasonable cause to stop the van and did not have consent to search the vehicle. On appeal, Heuser only challenges the court’s refusal to suppress the evidence based upon lack of reasonable cause. We review the district court’s denial of Heuser’s motion to suppress de novo because Heuser asserts his constitutional rights were violated when the officers allegedly stopped the van without reasonable cause. See State v. Wells, 629 N.W.2d 346, 351 (Iowa 2001).

The Fourth Amendment of the United States Constitution requires reasonable cause to stop a person for investigation. State v. Heminover, 619 N.W.2d 353, 357-58 (Iowa 2000) (overruled on other grounds by State v. Turner, 630 N.W.2d 601, 606 n. 2 (Iowa 2001)). The main reason law enforcement may stop a person “is to resolve the ambiguity as to whether criminal activity is afoot.” State v. Richardson, 501 N.W.2d 495, 497 (Iowa 1993). The United States Supreme Court has said reasonable cause may exist even when there is no probable cause for an arrest. Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889, 911 (1968); State v. Donnell, 239 N.W.2d 575, 577 (Iowa 1976). Once a defendant challenges the legality of an officer’s stop, the State has the burden to show the officer had “specific and articulable cause to reasonably believe criminal activity [was] afoot.” Heminover, 619 N.W.2d at 358.

Before the police officers stopped the van, the officers were faced with three major levels of suspicion. The Fort Dodge police department had been working with several area stores, including Target and Wal-Mart, to identify people buying precursors of methamphetamine. The first level of suspicion arose when Heuser and his companion bought several boxes of cold medication at Target. The couple entered the store together but separated and bought pseudoephedrine at different cash registers before returning to the van. As the Target employees’ suspicions were piqued, they notified police. The level of suspicion ascended to a higher plane as the couple proceeded from Target to Wal-Mart. At each stop, Heuser traded places with his companion in driving the van, so as to alternate the person purchasing the medication. At Wal-Mart, the woman got out of the driver’s side of the van and Heuser moved from the passenger side to the driver’s side. His companion went into the store alone, made a purchase, and returned to the van. A third level of suspicion occurred when the couple drove to Walgreens where Heuser bought more cold medication and asked a Walgreens’ employee about lithium batteries. With each stop and purchase of cold medication and batteries, Heuser climbed up the ladder of reasonable cause.

The United States Supreme Court has said police must “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740, 749-50 (2002). The manufacturing process for methamphetamine requires pseudoephedrine hydrochloride and lithium. The officers testified it is common for people to obtain pseudoephedrine hydrochloride from over-the-counter cold medications. They use batteries for the lithium in the manufacturing process. The officers testified Heuser’s conduct was consistent with people engaged in the manufacture of methamphetamine who generally try to avoid suspicion by gathering cold medication and batteries from a number of stores.

This is not a case where a person possessed only a large amount of cold medication or only a number of lithium batteries. Rather, Heuser possessed an unusually large number of pills. In addition to the pills, the officers had reasonable cause to suspect Heuser also possessed lithium batteries. These facts coupled with Heuser’s suspicious conduct of driving from store to store gathering medication and switching-off with his companion to buy the pills formed a solid basis upon which the officers had reasonable cause to stop the van to determine “whether criminal activity [was] afoot.” See Richardson, 501 N.W.2d at 497; see also Heminover, 619 N.W.2d at 358 (State has burden to prove officer has “specific and articulable cause to reasonably believe criminal aetivity [was] afoot.”). We affirm the trial court’s denial of Heuser’s motion to suppress the evidence.

B. Hearsay Evidence

The State offered into evidence the labels from the boxes of cold medication and the batteries found in Heuser’s van. The cold medication labels said the medication contained “pseudoephedrine hydrochloride.” The batteries were labeled classifying them as “lithium batteries].” Heuser objected to this, arguing the labels and batteries constituted inadmissible hearsay. .The court admitted the labels under the “market reports, commercial publications” exception to the general prohibition against hearsay evidence. See Iowa R. Evid. 5.803(17). On appeal Heuser argues the court’s admission of the labels and batteries prejudiced him because they were the only evidence offered to prove the cold medications and batteries contained precursors to methamphetamine. We review the trial court’s admission of hearsay evidence for correction of errors of law. State v. Curry, 436 N.W.2d 371, 372 (Iowa Ct.App.1988). However, to the extent constitutional issues are raised, our review is de novo. Id.

Hearsay is an out-of-court statement made by one, other than the declar-ant, testifying at a trial or hearing to prove the truth of the matter asserted. Iowa R. Evid. 5.801(c). As a general rule, hearsay is not admissible. The Confrontation Clause of the United States Constitution permits hearsay evidence to be admitted against the defendant only where the evidence falls within a recognized hearsay exception or particularized guarantees of trustworthiness assure the reliability of the evidence. Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2581, 2539, 65 L.Ed.2d 597, 608 (1980). These exceptions exist to accommodate “situations where it is impossible or impractical to present an actual witness, yet the proffered necessary evidence is inherently trustworthy under the circumstances.” 5 John Henry Wigmore, Evidence § 1420, at 251 (rev. ed.1974).

In the case before us, the trial court found the labels were hearsay but admitted them under an exception to the hearsay rule. The court relied upon the exception for “market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.” Iowa R. Evid. 5.808(17). Assuming the labels may be regarded as hearsay, we must determine whether they are admissible under any exceptions to the hearsay rule.

The issue of whether the labels on the boxes of over-the-counter cold medication and batteries come within an exception to the general rule against hearsay is a matter of first impression in Iowa. In arguing the cold medication labels fall within one of the exceptions to hearsay, the State has cited an analogous California case dealing with the admissibility of the label from a spray paint can. See In re Michael G., 19 Cal.App.4th 1674, 24 Cal.Rptr.2d 260 (1993). In In re Michael G., the State attempted to prove the defendant was in possession of a substance containing toluene with intent to inhale for the purpose of intoxication. The applicable California exception to the hearsay rule was similar to Iowa’s “market reports, commercial publications” exception, providing:

Evidence of a statement, other than an opinion, contained in a tabulation, list, directory, register, or other published compilation is not made inadmissible by the hearsay rule if the compilation is generally used and relied upon as accurate in the course of a business....

Id. at 262 n. 1. On appeal, the court found the label was inherently reliable because the manufacturer would have no incentive to state the product contains substances that it does not. Id. at 262. The court took judicial notice of the public’s reliance on the label and held the lower court properly admitted the label under the compilation exception to the hearsay rule. Id.

More recently, the Appellate Court of Illinois addressed the very issue we have before us. See People v. Shevock, 335 IU.App.3d 1031, 270 IlLDec. 390, 782 N.E.2d 949 (2003). The court held the labels from Sudafed packages were admissible as an exception to the hearsay rule. Id. at 953-54. The court stated the label was required, subject to penalty, under state and federal law. Id. at 954. The court noted violations of the Illinois Food, Drug and Cosmetic Act would result in criminal punishment and destruction of the product. Id. Given the fact the Sudafed had been purchased by the defendant, it was in his possession, and the contents were in the original package, the opportunity for tampering or adulteration of the product was reduced. Id. (citing In re T.D., 115 Ill.App.3d 872, 71 Ill.Dec. 20, 450 N.E.2d 455, 459 (1983)). These combined circumstances made the label admissible in spite of the hearsay rule. Id.

In the instant case, the pseudoephedrine hydrochloride tablets found in the van are controlled by state and federal law. The Iowa Drug, Device, and Cosmetic Act regulates drugs introduced into commerce. It specifically prohibits the introduction into commerce of any drug that is mislabeled. See Iowa Code §§ 126.2(8) (defining the word “drug”), 126.2(11) (defining the word “label”), 126.3(1) (“the introduction or delivery for introduction into commerce of any drug, device, or cosmetic that is adulterated or misbranded” is unlawful). Iowa Code section 126.10 addresses the mis-branding or mislabeling of drugs. This section provides a drug label must contain “an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count.” Id. § 126.10. The label must also bear the “systematic chemical name or the chemical formula” including the established name of the drug and the quantity of each active ingredient. Id. § 126.10(5)(a )(1). Similarly, section 714.8 prohibits misrepresenting the quality or quantity of any goods offered or kept for sale by attaching or altering a label. Id. § 714.8. These sections apply to the labels from the cold medication boxes offered into evidence by the State. Furthermore, the medication inside the boxes is subject to the regulations of the Food and Drug Administration. The applicable state and federal regulations suggest the cold medication labels are accurate and trustworthy. Additionally, the contemporary nature of pharmaceutical practice exemplifies the inherent trustworthiness of the cold medication labels.

In this modern day, thousands of pharmaceuticals are compounded, processed, or produced, and then packaged and labeled for distribution in that package for direct sale to a customer unopened, and frequently under seal, and as the modern advertising puts it “untouched by human hands.” This is no longer an age when the processor puts the ingredients into a vial with an “eyedropper,” with highly variable results appearing in the finished “preparation,” but an era characterized by automatic mixing, measuring, and filling apparatus, the entire productive process being controlled by electronic and nucleonic gauges, measuring to infinitesimal precision, to produce an absolute result in meeting a required standard. This is the process that brings to a pharmacist an “exempt” preparation, properly labeled as required by statute, and in this case a label ... specifically designed to make that preparation more quickly identifiable.

State v. Mitchell, 18 Ohio App.2d 1, 246 N.E.2d 586, 589 (1969). For all these reasons, over-the-counter drug labels are generally used and relied upon as accurate.

The labels in question were required on the cold medication boxes as provided by state and federal law. Heuser possessed the boxes of cold medication that were in the original packages. Both the boxes and the blister packs were unopened. The fact the pills were in the original, unbroken packages indicates the contents had not been changed since the manufacturer packaged them. The cold medication clearly listed pseudoephedrine hydrochloride as one of the active ingredients in each pill. Although the loose blister packs were not in the original boxes, the pack clearly indicated each pack contained Perrigo brand nasal decongestant, containing pseudoephedrine hydrochloride. The labels qualify as a “market list” that is generally used and relied upon by the public. The list comes within the purview of the market reports, commercial publications exception to the hearsay rule. Under this exception, the trial court properly admitted the cold medication labels into evidence as proof the contents contained pseudoephedrine hydrochloride, a precursor to methamphetamine.

The batteries are not subject to the requirements of Iowa Code chapter 126 because they do not fall within the scope of the Drug, Device, and Cosmetic Act. Instead, the court admitted the battery labels into evidence under the same hearsay exception as the cold medication labels and pursuant to our holding in State v. Beiser, 248 Iowa 728, 732, 82 N.W.2d 115, 117 (1957). In Beiser, the court found the labels on beer bottles supported the conclusion that beer had the alcoholic content specified by statute because the statute required the labels to state the alcohol concentration. The bottles were labeled “beer” and sold as containing beer; consumers have a right to rely oh the truth of the label. Id.

The Energizer batteries in Heu-ser’s possession were clearly labeled “AA lithium batter[ies].” There is nothing in the record to suggest the battery labels indicating they contained lithium were untrustworthy or had been altered from their original form. Heuser admits he purchased the batteries the same day he was arrested indicating the batteries were new and still contained active lithium. Further, Heuser conceded he bought the batteries in reliance on the labels which stated the batteries contained “lithium.” Energizer Company manufactures the lithium batteries, labels them as lithium batteries, and sells them as lithium batteries. A manufacturer would be unlikely to proclaim the batteries contain lithium when they do not. The public relies on that assertion. The label has strong indicia of trustworthiness. The words “AA lithium battery” on the surface of each battery come within the purview of the “market list” exception to hearsay as the label puts the battery into a specific category, i.e. lithium batteries. The trial court properly admitted the battery labels into evidence for the purpose of showing the batteries contained lithium, an ingredient required for the manufacture of methamphetamine.

In sum, all of the above circumstances combine to make the labels on the batteries and cold medication boxes admissible. The “writing on a product’s label is competent proof of its contents and is self-authenticating.” See Shevock, 270 Ill.Dec. 390, 782 N.E.2d at 954; accord In re T.D., 71 Ill.Dec. 20, 450 N.E.2d at 458; Mitchell, 246 N.E.2d at 589; Wirth v. State, 55 Wis.2d 11, 197 N.W.2d 731, 733 (1972). The labels found on the boxes and batteries were properly admitted into evidence under the “market reports, commercial publications” exception as substantive proof that the boxes contained pseu-doephedrine and the batteries contained lithium. See Iowa R. Evid. 5.803(17); In re T.D., 71 Ill.Dec. 20, 450 N.E.2d at 458; Mitchell, 246 N.E.2d at 589; Wirth, 197 N.W.2d at 733. We affirm.

C. Sufficiency of the Evidence

Heuser argues the trial court erred in overruling his motion for judgment of acquittal because there was insufficient evidence to support his convictions. We review the record for correction of errors of law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). Substantial evidence is that from which a rational trier of fact could conceivably find the defendant guilty beyond a reasonable doubt. Id. Our review of the record shows ample evidence supporting Heuser’s convictions.

The State was required to show Heuser possessed pseudoephedrine hydrochloride and lithium batteries with intent to manufacture methamphetamine. Intent may be shown through circumstantial evidence and inferences drawn from the evidence. State v. Nance, 533 N.W.2d 557, 562 (Iowa 1995). The facts before us circumstantially prove Heuser had intent to manufacture methamphetamine.

Heuser possessed an unusually large amount of the drug — 312 tablets. Heu-ser’s excuse that he needed the medication for his allergies is not consistent with the large number of tablets he had in the van. The directions for each of the medications said the maximum dose is four tablets per day. In addition to the cold medication, Heuser also had twelve AA lithium batteries in the car. He explained the batteries were for his 9-volt smoke detector.

Heuser’s conduct suggests he intended to use the medication and batteries to manufacture methamphetamine. He traveled from Target to Wal-Mart to Wal-greens to buy the pseudoephedrine. At the first store, Heuser and his companion split up and each bought cold medication from separate cashiers. At the next store, only the woman went into the store to buy the medicine. Finally, at their last stop, only Heuser went into the store to purchase more medicine and he asked about lithium batteries. Such behavior is consistent with a person trying to avoid suspicion by buying the necessary methamphetamine precursors from a number of different stores. When the police questioned the couple about their activities, Heuser initially said they were shopping for pantyhose. The woman told the officers they were not shopping for pantyhose. Heuser did not acknowledge the cold medication and batteries in the car until after the police discovered them during the search. From all of the above facts, the jury could have concluded Heu-ser possessed lithium batteries and pseu-doephedrine hydrochloride with intent to manufacture methamphetamine.

D. Ineffective Assistance of Counsel

Finally, Heuser contends his trial counsel was ineffective for failing to allow Heu-ser to testify on his own behalf. Heuser specifically argues that had he been permitted to testify, he would have explained the lithium batteries found by the police were for his childrens’ compact disc players.

To prove ineffective assistance of counsel, Heuser must show: (1) trial counsel failed to perform an essential duty and (2) Heuser was prejudiced by counsel’s errors. State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003). We begin with a presumption that trial counsel acted within the normal range of competency. Id. To show prejudice Heuser must prove that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. Failure to prove either of these elements is fatal to a claim of ineffective assistance. We review such claims de novo. Id.

An ineffective assistance of counsel claim generally does not lie for the exercise of judgment. Polly, 657 N.W.2d at 465 (citing State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002)). “Generally, the decision not to call a particular witness or the defendant to testify implicates a reasonable tactical decision.” Polly, 657 N.W.2d at 468. “Improvident trial strategy or miscalculated tactics” typically do not constitute ineffective assistance of counsel. Id. (citing State v. Oetken, 613 N.W.2d 679, 684 (Iowa 2000)). Trial counsel’s decision not to call Heuser to testify was a strategical decision we will not second-guess. Id. (citing State v. Kone, 557 N.W.2d 97, 102 (Iowa Ct.App.1996)).

The record does not indicate whether Heuser’s trial counsel advised him not to testify, but the record reflects tactical reasons for such action. The State likely would have impeached Heuser’s credibility with his dubious and inconsistent explanations for his possession of the cold medication and batteries. For example, the State certainly could have asked Heuser about the newest explanation for his possession of the lithium batteries. Heuser may have been asked why, at trial, he claimed the batteries were for compact disc players, when he had told the police officers the batteries were for a smoke detector. The State was armed with numerous inconsistent statements to use for impeachment purposes. Because Heuser has not shown his trial counsel failed in an essential duty, his ineffective assistance of counsel claim fails.

III. Conclusion

We affirm all judgments of the trial court. First, we conclude the trial court properly overruled Heuser’s motion to suppress for lack of reasonable cause. The circumstances surrounding the police officer’s stop of the van, coupled with the officers’ experience provided reasonable cause to believe criminal activity was afoot. The trial court also properly admitted into evidence the labels on the cold medication boxes and batteries pursuant to the exception for “market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.” Iowa R. Evid. 5.803(17). The record contains substantial evidence upon which the jury could have found Heuser guilty of two counts of possession of a precursor with intent to manufacture methamphetamine. Finally, Heuser’s trial counsel was not ineffective for failing to call Heuser to testify. This decision reflects a reasonable tactical decision.

AFFIRMED.

      . Heuser also argues the hearsay is inadmissible because the State did not give notice of its intention to offer the labels into evidence “sufficiently in advance of the trial.” See Iowa R. Evid. 5.803(24). Before the court may admit evidence offered pursuant to Iowa Rule of Evidence 5.803(24), the residual hearsay exception, the court must determine that:
      (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

        Id. Additionally, the court may not admit a statement pursuant to this section
      unless the proponent of it makes known to the adverse party sufficiently in advance of trial ... to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

        Id. The only hearsay exception which requires adequate notice to be given to the adverse party is the residual hearsay exception. In this particular case, the trial court admitted the labels into evidence pursuant to the "market reports, commercial publications” exception to hearsay under Iowa Rule of Evidence 5.803(17). As such, the notice requirement does not apply to this case.

      . See Iowa R. Evid. 5.902(7) (“Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to ... inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership and control.”).