text:
    ESTATE OF Marlene R. COUNTRYMAN, by and through, Carol Marie Taylor, Beverly Joyce Gartner, and Wanda Dale Countryman, Co-Executors, Estate of Dale Countryman, by and through Carol Marie Taylor, Beverly Joyce Gartner and Wanda Dale Countryman, Co-Executors, Estate of Marjorie A. Countryman, by and through Carol Marie Taylor, Beverly Joyce Gartner and Wanda Dale Countryman, Co-Executors, Estate of Edward Cunningham, by and through Keith Cunningham, Linda J. Cunningham and Carol Marie Taylor, Co-Executors, Estate of Dorothy Cunningham, by and through Keith Cunningham, Linda J. Cunningham and Carol Marie Taylor, Co-Executors, Beverly Joyce Gartner, Bruce Gartner, Beverly Joyce Gartner, as Parent and Next Friend of Amber Gartner, Adam Gartner and Trey Gartner, Minors, Greg and Barbara Dyer, as Parent and Next Friend of Andy Dyer and Gabe Dyer, Minors, Estate of Ashley Usovsky, by and through Carol Marie Taylor, Beverly Joyce Gartner and Wanda Dale Countryman, Co-Executors, Conservatorship of Marlena Usovsky, a Minor by and through Carol Marie Taylor, Beverly Joyce Gartner and Wanda Dale Countryman, Co-Conservators, and Estate of Juanita Usovsky, by and through Gary L. Cameron, Executor, Appellants, v. FARMERS COOPERATIVE ASSOCIATION, Keota, Iowa a/k/a Keota Coop, Appellee.
    No. 02-0906.
    Supreme Court of Iowa.
    May 12, 2004.

      Donald G. Beattie of Beattie Law Firm, P.C., Des Moines, Christopher D. Spauld-ing of Berg, Rouse, Spaulding <& Schmidt, P.L.C., Des Moines, and Myron Gookin, Fairfield, for appellants.
    Richard S. Fry and Nancy J. Penner of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for appellee.
   CADY, Justice.

This appeal requires us to decide if a member and manager of an Iowa limited liability company can be liable for torts based on managerial conduct.' The district court granted summary judgment for the limited liability company. On our review, we conclude we have jurisdiction of the appeal and that the record did not support summary judgment. We reverse and remand for further proceedings.

I. Background Facts and Proceedings.

In the afternoon of September 6, 1999, an explosion leveled the home of Jerry Usovsky (Usovsky) in Richland, Iowa. Tragically, seven people who had gathered in the home to celebrate the Labor Day holiday died from the explosion. Six others were injured, some, seriously. The likely cause of the explosion was stray propane gas. The survivors and executors of the estates of those who died eventually filed a lawsuit seeking monetary damages against a host of defendants. The legal theories of recovery included negligence, breach of warranty, and strict liability. The defendants included Iowa Double Circle, L.C. .(Double- Circle) and Farmers Cooperative Association of Keota (Keota).

Double Circle is- an Iowa limited liability company. It is a supplier of propane, and delivered propane to Usovsky’s home prior to the explosion. Keota is one of two members in Double Circle. It owns a ninety-five percent interest in the company. The other- member is Farmland Industries, Inc. (Farmland Industries), a regional cooperative. Keota and Farmland Industries formed Double Circle in 1996 from an existing operation.

Keota is a farm cooperative that provides a variety of farm products and services to area farmers. It is a member of Farmland Industries and is managed by Dave Hopscheidt (Hopscheidt). The executive committee of Keota’s board of directors serves as the board of directors of Double Circle, along with a representative of Farmland Industries. Keota provides managerial services to Double Circle, pursuant to a management agreement between Keota and Double Circle. Keota’s duties under the agreement include “human resource and safety management.” Hopscheidt oversees the daily operations of both Keota and Double Circle. However, Keota and Double Circle operate as separate entities and maintain separate finances.

Keota moved for summary judgment. It claimed the limited liability structure of Double Circle protected it from liability for any tortious acts of Double Circle based on its ownership interest and membership in Double Circle, or its management. It filed a supporting statement of undisputed facts with attached documents detailing the separate operations of Keota and Double Circle. The undisputed facts referred to an operating agreement providing that no member of the company would be liable for any tort solely by reason of being a member of the company. The attached documents also included a written agreement requiring Keota to provide management assistance and consulting services to Double Circle.

The plaintiffs resisted the motion by pointing to allegations in their petition indicating Keota participated in the claimed wrongdoing through the management decisions it made in consumer safety matters. For example, plaintiffs claimed Keota, through Hopscheidt, was negligent in failing to provide proper warnings to propane users, including the failure to warn users to install a gas detector, and to properly design the odorant added to the propane. Plaintiffs also sought to impose liability against Keota by piercing the corporate veil.

The district court granted summary judgment for Keota. It found plaintiffs failed to produce any facts to show that Keota engaged in conduct separate from its duties as director or manager of Double Circle. Consequently, it concluded Keota was protected as a matter of law from personal liability for claims of wrongful conduct attributable to Double Circle. It also concluded there was insufficient evidence as a matter of law to pierce the corporate veil.

The summary judgment ruling was entered on September 5, 2001. Following the ruling, the case proceeded against the remaining defendants. There were also numerous cross claims among the defendants, as well as a petition for intervention based on a claim for subrogation. The district court set a trial date of April 1, 2002. Ultimately, none of the claims were submitted at trial. Instead, plaintiffs settled their claims and filed dismissals, some with prejudice and some without prejudice. The dismissals were filed at various times prior to the trial date, and after the date of trial. Dismissals filed after the trial date included the dismissal of Lennox Industries, Inc. on May 14, 2002, and a dismissal of the Maytag Corporation (Maytag) on June 10, 2002. The district court never entered an order dismissing the claims of any of the plaintiffs to this appeal.

Plaintiffs filed their notice of appeal from the summary judgment ruling on June 12, 2002. They claimed the district court erred by finding that Keota was insulated from liability as a matter of law. Plaintiffs did not challenge the ruling based on the theory of piercing the corporate veil.

Keota filed a motion to dismiss the appeal. It claimed there was no appellate jurisdiction because a final order, judgment, or decree had never been entered by the district court. We ordered the issue submitted with the appeal.

II. Jurisdiction.

We first consider our jurisdiction to hear this appeal. Ordinarily, we have no jurisdiction over a case where no final judgment has been entered, unless permission has been obtained to appeal from an interlocutory order. Johnson v. Iowa State Highway Comm’n, 257 Iowa 810, 812, 134 N.W.2d 916, 917 (1965). In the case before us on appeal, the district court never entered a final order dismissing the claims of the plaintiffs to this appeal. Instead, the case was concluded in district court through a variety of voluntary dismissals filed by the plaintiffs as a result of various settlements between the parties. Yet, dismissals filed by the parties are not considered to be final orders for the purposes of appeal. Ahls v. Sherwood/Div. of Harsco Corp., 473 N.W.2d 619, 622 (Iowa 1991). Consequently, Keota claims we have no jurisdiction.

We have previously adopted the doctrine of “pragmatic finality” to govern appeals where the record reveals the claims before the district court were fully concluded without a final order or judgment entered. Id. at 622-23. We think this doctrine applies to render the plaintiffs’ appeal timely in this case.

The appeal in this case is from an order that did not dispose of the entire case. When this summary judgment order was entered, the plaintiffs had the right to request an interlocutory appeal or wait to appeal once the entire case was completed. Iowa Rule of Appellate Procedure 6.5(3) provides:

Notwithstanding these rules, an order disposing of an action as to fewer than all parties to the suit, even if their interests are severable, or finally disposing of fewer than all the issues in the suit, even if the issues are severable, may be appealed within the time for an appeal from the order, judgment, or decree finally disposing of the action as to remaining parties or issues.

In lieu of seeking interlocutory review, the plaintiffs in this case chose to wait until the conclusion of the case. Yet, the existence of a final judgment in this case became clouded because the claims of the parties were either settled or rendered moot in piecemeal fashion. Ultimately, the trial scheduled by the district court was not needed, and the various dismissals filed by the parties made it unnecessary for the court to bring the case to a conclusion by entering a final judgment. Clearly, these circumstances are the types that fall within the “pragmatic finality” doctrine. The vast number of parties and claims, however, made it difficult to pinpoint a pragmatic final judgment under the doctrine, which Keota seizes upon in an effort to reject its application.

Notwithstanding the complexity of the settlement process, the important inquiry under Ahls is for the record to provide sufficient assurance that the case was fully concluded and that there were no remaining issues to be tried by the district court. See Ahls, 473 N.W.2d at 622-23. In this case, the key event in this inquiry is the date the last remaining claim against a party was dismissed. Applying the Ahls standards, we are satisfied that the pragmatic finality for appeal purposes occurred when Maytag was dismissed. Id. The notice of appeal was filed within thirty days from this event. The order granting summary judgment was timely appealed and we deny the motion to dismiss.

III. Scope of Review.

We review a district court decision granting summary judgment for correction of errors of law. Hynes v. Clay County Fair Ass’n, 672 N.W.2d 764, 766 (Iowa 2003). In doing so, we view the evidence in the light most favorable to the nonmovant. Virden v. Betts & Beer Constr. Co., 656 N.W.2d 805, 806-07 (Iowa 2003). Our task is to determine “ ‘whether a genuine issue of material fact exists and whether the law was correctly applied.’ ” Adam v. Mount Pleasant Bank & Trust Co., 355 N.W.2d 868, 872 (Iowa 1984) (citations omitted).

IV. Limited Liability Company.

The limited liability company, “LLC” as it is now known, is a hybrid business entity that is considered to have the attributes of a partnership for federal income tax purposes and the limited liability protections of a corporation. 5 Matthew G. Doré, Iowa Practice (Business Organizations) § 1.6, at 18-19 (2004) [hereinafter Doré], As such, it provides for the operational advantages of a partnership by allowing the owners, called members, to participate in the management of the business. See id. § 1.6, at 20-21. Yet, the members and managers are protected from liability in the same manner shareholders, officers, and directors of a corporation are protected. Id. § 1.6, at 21.

The LLC first emerged as a business organization in 1977 and has now been adopted by statute in every state in the nation. Jerome P. Priedlander, II, The Limited Liability Company: With a State-By-State Review § 1:3 (1994 & Supp.1997). Iowa joined the trend in 1992 with the passage of the Iowa Limited Liability Company Act (ILLCA). 1992 Iowa Acts ch. 1151 (codified at Iowa Code sections 490A.100-1601 (2003)). The ILLCA, among other features, permits the owners or members to centralize management in one or more managers or reserve all management powers to themselves. See Iowa Code § 490A.702; see also 5 Doré § 1.6, at 20-21.

V.Liability of Members or Mangers.

Although the tax treatment of an LLC has been largely resolved, the contours of the limited liability of an LLC are less certain. See Karin Schwindt, Note, Limited Liability Companies: Issues in Member Liability, 44 UCLA L.Rev. 1541, 1543-44 (1997). Only a few courts have specifically addressed the issue of tort liability. The ILLCA, however, describes the liability for members and managers of an LLC in four ways. It first addresses the general rule of limited liability for members and managers based on the acts or debts of the company:

Except as otherwise provided by this chapter or as expressly provided in the articles of organization, no member or manager of a limited liability company is personally liable for the acts or debts of the limited liability company.

Iowa Code § 490A.601. The act then addresses the limited liability doctrine by first explaining the protection of members or managers from personal liability:

Except as otherwise provided in this chapter or by written agreement of a member, a member or manager of a limited liability company is not personally liable solely by reason of being a member or manager of the limited liability company ... for any debt, obligation, or liability of the limited liability company, whether that liability or obligation arises in contract, tort, or otherwise.

Id. § 490A.603(1). Next, the act explains those circumstances that give rise to liability of members:

A member of a limited liability company is personally liable under a judgment ... whether that liability or obligation arises in contract, tort, or otherwise, under the same or similar circumstances and to the same extent as a shareholder of a corporation may be personally liable for any debt, obligation, or liability of the corporation....

Id. § 490A.603(2). Finally, the same section of the act provides:

Nothing in this section shall be construed to affect the liability of a member of a limited liability company to third parties for the member’s participation in tortious conduct.

Id. § 490A.603(3). The rules of liability derived from these statutes have been summarized as follows:

Sections 490A.601 and 490A.603 of the Act generally provide that a member or manager of a limited liability company is not personally liable for acts or debts of the company solely by reason of being a member or manager, except in the following situations: (1) the ILLCA expressly provides for the person’s liability; (2) the articles of organization provide for the person’s liability; (3) the person has agreed in writing to be personally liable; (4) the person participates in tortious conduct; or (5) a shareholder of a corporation would be personally liable in the same situation, except that the failure to hold meetings and related formalities shall not be considered.

5 Doré § 13.12, at 287-88 (footnotes omitted).

This law frames our resolution of the summary judgment issue presented on appeal. While liability of members and managers is limited, the statute clearly imposes liability when they participate in tortious conduct. See Iowa Code § 490A.603(3). This approach is compatible with the longstanding approach to liability in corporate settings, where, under general agency principles, corporate officers and directors can be liable for their torts even when committed in their capacity as an officer. Haupt v. Miller, 514 N.W.2d 905, 907 (Iowa 1994); 3A Jennifer L. Berger et al., Fletcher Cyclopedia of the Law of Private Corporations § 1135, at 200-01 (perm. ed. rev.vol.2002) [hereinafter Fletcher]. This approach has been explained as follows:

Agency law generally, and Iowa law in particular, has long recognized that if a person commits a tort while acting for another person, the tortfeasor is personally liable for the tort, even if the person for whom he is acting is also vicariously liable for the same wrong. In other words, a person’s status as an agent confers no immunity with respect to the person’s own tort liability. Thus, if a member of a limited liability company injures another person while working in the course of the firm’s business, the member is personally liable for that harm along with the company, just as the member would be if he worked for a firm organized as a corporation, a partnership, or any other business form.

5 Doré § 13.12, at 288 (footnotes omitted).

Keota suggests that liability of an LLC member or manager for tortious conduct is limited to conduct committed outside the member or manager role. Yet, this approach is contrary to the corporate model and agency principles upon which the liability of LLC members and managers is based, and cannot be found in the language of the statute. We acknowledge that the “participation in tortious conduct” standard would not impose tort liability on a manager for merely performing a general administrative duty. See Haupt, 514 N.W.2d at 909. See generally 3A Fletcher §§ 1135, 1137, at 200-08, 209-19; William E. Knepper & Dan A. Bailey, The Liability of Corporate Officers and Directors § 6.07, at 6-14 to -15 (7th ed.2003). There must be some participation. See 18B Am. Jur.2d Corporations § 1877, at 724 (1985). The participation standard is consistent with the principle that members or managers are not liable based only on their status as members or managers. 3A Fletcher § 1137, at 209. Instead, liability is derived from individual activities. Yet, a manager who takes part in the commission of a tort is liable even when the manager acts on behalf of a corporation. See Fletcher §§ 1135, 1137, at 200-01, 209-13; Haupt, 514 N.W.2d at 909 (corporate officer liable for own tortious conduct where the officer acts under the corporate name or outside the corporate name). The ILLCA does not insulate a manager from liability for participation in tortious conduct merely because the conduct occurs within the scope and role as a manager.

Keota argues this view of limited liability places section 490A.603(1) at odds with section 490A.603(3). We disagree. The limit on liability created for members and managers of LLCs in section 490A.603(1) means members and managers are not liable for company torts “solely by reason of being a member or manager” of an LLC. Iowa Code § 490A.603(1). The phrase “solely by reason of’ refers to liability based upon membership or management status. It does not distinguish between conduct of a member or manager that may be separate and independent from the member or management role. Thus, it is not inconsistent to protect a member or manager from vicarious liability, while imposing liability when the member or manager participates in a tort. Liability of members of an LLC is limited, but not to the extent claimed by Keota.

Keota relies on Curole v. Ochsner Clinic, L.L.C., 811 So.2d 92, 96-97 (La.Ct.App.2002), to support its position that owners and managers of an LLC are only liable for acts committed outside their capacity as a member or manager. While this was the conclusion reached in Curóle, the case reveals that the Louisiana limited liability statute is substantially different from the Iowa statute. Id.; see also La.Rev.Stat.Ann. § 12:1320 (West 1994). The Louisiana statute does not contain the “solely by reason of’ language of Iowa Code section 490A.603(1) and does not contain the “participation in tortious conduct” language of section. 490A.603(3). See La.Rev.Stat. Ann. § 12.1320. Furthermore, other states that have discussed the topic of limited liability of LLC members and managers indicate that limited liability refers to liability based on the status of being a member or manager. See Addy v. Myers, 616 N.W.2d 359, 362 (N.D.2000); Rebecca J. Huss, Revamping Veil Piercing for all Limited Liability Entities: Forcing the Common Law Doctrine Into the Statutory Age, 70 U. Cin. L.Rev. 95, 101-02 (2001).

It is also important to recognize that this case is not about holding an officer, director, or shareholder of Keota personally liable for participating in tortious conduct. Plaintiffs have not sued individual members of Keota. Instead, the lawsuit filed by the plaintiffs seeks to hold Keota liable for participating in certain torts as the designated manager of an LLC pursuant to the agreement under which it directed Hopscheidt to act for Keota in performing management services of Double Circle. While members and managers of an LLC are generally not personally liable for the acts of an LLC, Keota must also be viewed as a separate “legal” person. This approach means that corporate liability for the acts of corporate agents can result as a matter of agency law. 5 Doré § 15.3, at 378-79. In discussing the general rule of limited liability of directors, officers, and employees for acts of a corporation, one author explains:

A similar result obtains under the doctrine of respondeat superior when corporate employees commit a tort. The corporation is the employer and principal of such persons. Thus, the corporation may be held vicariously liable for its employees’ torts, but the corporation’s directors, officers, and employees (other than those employees who committed the tort) will not face any exposure. In short, for liability purposes the corporation is distinct not only from its shareholders, but also from its directors, officers, employees, and other agents.

5 Doré § 15.3, at 379. See generally 3A Fletcher ch. 54 (discussing corporate liability for torts of officers and agents); Meyer v. Holley, 537 U.S. 280, 285-86, 123 S.Ct. 824, 829, 154 L.Ed.2d 753, 761 (2003) (a corporation — not its owner or officer — is vicariously liable for torts of employees or agents). It is appropriate to apply this approach to cooperatives, such as Keota. See 18 Am.Jur.2d Cooperative Associations § 12, at 281 (1985) (a cooperative is essentially a corporation). Thus, Keota can participate in torts through the conduct of those individuals acting on behalf of Keota.

We conclude that Keota is not protected from liability if it participated in tortious conduct in performing its duties as manager of Double Circle. Consequently, the district court improperly granted summary judgment based on the limited liability provisions of section 490A.603(1) and 490A.603(3). A trial is necessary to develop the facts relating to allegations of Keo-ta’s participation in the alleged torts.

YI. Conclusion.

We reverse the summary judgment ruling of the district court on the issue of liability under chapter 490A, and remand for further proceedings. Plaintiffs did not appeal from that portion of the summary judgment ruling dismissing the claim for liability based on the theory of piercing the corporate veil, and that theory of recovery is not viable on remand.

REVERSED AND REMANDED.

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

      . There was some confusion whether the Len-nox Industries, Inc. dismissal filed with the district court was missing the signature of the attorney representing plaintiff Usovsky and the estate of Juanita Usovsky. Nevertheless, it is clear the parties resolved or settled all claims, except those resolved by the summary judgment.

      . In the absence of a record revealing the facts, we make no attempt to define the precise parameters of the participation theory of liability and the type of participation that gives rise to liability under the doctrine.


source: Caselaw Access Project

author: CARTER, Justice.

license: Public Domain

text:
    BOB ZIMMERMAN FORD, INC., Appellant, v. MIDWEST AUTOMOTIVE I, L.L.C., Appellee, BMW North America, Inc., Intervenor-Appellee.
    No. 02-1708.
    Supreme Court of Iowa.
    May 12, 2004.

      Peter C. Riley of Tom Riley Law Firm, P.L.C., Cedar Rapids, for appellant.
    John F. Lorentzen of Nyemaster, Goode, Voigts, West, Hansell & O’Brien, P.C., Des Moines, for appellee Midwest Automotive I, L.L.C.
    Stephen M. Bledsoe and Lawrence M. Berkowitz of Berkowitz Stanton Brandt Williams & Shaw L.L.P., Kansas City, Missouri, and Scott McLeod of Lynch Dallas, P.C., Cedar Rapids, for intervenor-appellee BMW North America, Inc.
    Martha Martell, West Des Moines, for amicus curiae Iowa Automobile Dealers Association.
   CARTER, Justice.

Bob Zimmerman Ford, Inc. (Zimmerman), operator of a BMW franchise, appeals from an adverse summary judgment in its declaratory judgment action seeking to establish that the right of first refusal granted to the franchiser, BMW North America, Inc. (BMW), in case of a franchise transfer, is invalid by reason of the provisions of Iowa Code section 322A.12 (1997). The action was brought against Midwest Automotive I, L.L.C. (Midwest), an assignee of BMW’s first-refusal rights. BMW later intervened in the action.

The district court concluded that the version of section 322A.12 in effect at the time of a proposed sale of Zimmerman’s franchise to John Chezik did not preclude BMW from exercising the right of first refusal granted to it under the franchise agreement. After reviewing the record and considering the arguments presented, we are convinced that the statute, as it existed at the time of the transaction, did serve to invalidate the right of first refusal contained in the franchise agreement. Consequently, we reverse the judgment of the district court and remand the matter to that court for further proceedings consistent with this opinion.

Zimmerman has operated a BMW franchise in Cedar Rapids since 1977 under a series of dealer agreements with BMW. BMW is the North American distribution arm of a German corporation. Its responsibilities include maintaining BMW dealerships in North America. Midwest is a Des Moines auto dealership.

In November 1993 BMW and Zimmerman entered into the dealer agreement at issue here. Article I of the dealer agreement grants BMW a right of first refusal in the event Zimmerman would sell the franchise. It provides:

[Wjhenever Dealer intends to dispose of Dealer’s BMW assets or to change majority ownership ..., BMW NA shall have the first right to purchase Dealer’s BMW assets or ownership interests pursuant to this Article. Dealer agrees to disclose to the prospective buyer that any sale or disposition shall be subject to the terms of this Dealer Agreement. BMW NA will advise Dealer if it will exercise the right of first refusal within forty-five (45) days after Dealer has furnished all applications and information .... If BMW NA exercises the right, BMW NA will assume the proposed buyer’s rights and obligations under the written agreement the proposed buyer negotiated with Dealer (the “Buy/ Sell Agreement”). The purchase price shall be that set forth in the Buy/Sell Agreement.
In the event BMW NA exercises its right of first refusal, BMW NA may assign the Buy/Sell Agreement to any party. BMW NA shall remain responsible to guarantee the purchase price to be paid by the assignee.

Zimmerman does not dispute the meaning of this clause, only its legal validity.

In the fall of 1999, Zimmerman explored the possibility of selling its BMW franchise. Mark Zimmerman, president and principal owner of Zimmerman, contacted BMW, but BMW expressed no interest at Zimmerman’s offered price of $850,000. Zimmerman then began negotiations with John Chezik. Chezik is an auto dealer in Kansas City who operated a Honda dealership in Iowa City and a Suzuki dealership in Cedar Rapids.

In October 1999 Zimmerman orally agreed to sell its BMW assets to Chezik for $650,000. John Bell, manager of Chez-ik’s operations in Cedar Rapids and Iowa City, prepared a one-page purchase agreement. On December 3, 1999, Zimmerman prepared a more formal written agreement involving the sale of the franchise to Chez-ik for $650,000. This agreement provided for a closing date of December 31, 1999. Chezik delayed the execution of this agreement because he wanted to give BMW time to review the proposed transaction. He eventually did sign the agreement on December 23, 1999, after the closing date had been extended to March 15, 2000. The contract did not condition the sale on BMW’s approval of Chezik.

On March 13, 2000, Zimmerman and Chezik agreed to extend the March 15 closing date to April 6, 2000. Zimmerman’s attorney prepared a document amending the agreement to reflect this change. Zimmerman understood this change occurred because Chezik needed more time to confer with BMW. The Zimmerman-Chezik sale did not close on April 6, 2000, or anytime thereafter.

On April 13, 2000, within forty-five days of BMW receiving all requested information from Zimmerman and Chezik, but after the April 6 closing date on the transfer agreement, BMW assigned its first-refusal rights to Midwest. On the same day, BMW sent a letter to Zimmerman notifying it of the assignment and that Midwest wished to exercise its right of first refusal by accepting the terms of the December 23, 1999, Zimmerman-Chezik agreement.

Zimmerman refused to honor the BMW Midwest right of first refusal. On May 5, 2000, it initiated this declaratory-judgment action asking the court to declare that the right of first refusal contained in the franchise agreement is in violation of section 322A.12.

I. Scope of Review.

We review a summary-judgment ruling for correction of errors at law. Iowa R.App. P. 6.4; Sons of the Union Veterans of the Civil War v. Griswold Am. Legion Post 508, 641 N.W.2d 729, 731 (Iowa 2002). When the only controversy concerns the legal consequences flowing from undisputed facts, summary judgment is the proper remedy. Am. Processing, Inc. v. Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd., 586 N.W.2d 325, 329 (Iowa 1998). The district court decision in the present case was based on the application of a statute to the undisputed facts and consequently presents an issue that is purely one of statutory interpretation. See Burton v. Univ. of Iowa Hosps. & Clinics, 566 N.W.2d 182, 185 (Iowa 1997) (summary judgment often the appropriate remedy when questions of statutory interpretation are controlling).

II. The District Court’s Decision.

The district court advanced three reasons in support of its ruling. The first was its conclusion that first-refusal rights are well established in commercial transactions. Second, the court believed that a franchisee could adequately protect itself from any adverse consequences of the franchiser’s exercise of a right of first refusal by including any necessary protections as conditions in the transfer documents that the franchiser would have to match. Finally, the district court supported its decision in part by interpreting the language “the franchiser shall give effect to such a change” as requiring approval of a franchise transfer by an existing franchisee on the same terms and conditions that have been negotiated. The court concluded that the statute did not require the acceptance of a new franchisee designated by the existing franchisee.

III. The Franchisee’s Statutory Protections.

Among the statutory protections afforded a franchisee in Zimmerman’s position at the time of the challenged transaction was the following:

Notwithstanding the terms, provisions or conditions of any agreement or franchise, subject to the provisions of subsection 2 of section 322A.11, in the event of the sale or transfer of ownership of the franchisee’s dealership by sale or transfer of the business or by stock transfer or in the event of change in the executive management of the franchisee’s dealership the franchiser shall give effect to such a change in the franchise unless the transfer of the franchisee’s license under chapter 322 is denied or the new owner is unable to obtain a license under that chapter, as the case may be.

Iowa Code § 322A.12. Also deemed important by the parties in the present action are the consequences of a 2002 amendment to the foregoing statute, which changed the words “shall give effect to such a change in the franchise” to “shall give effect to the change in the franchise,” and added the following additional paragraph:

Notwithstanding the terms, provisions, or conditions of an agreement or franchise, the sale or transfer, or the proposed sale or transfer, of a franchisee’s dealership, or the change or proposed change in the executive management of a franchisee’s dealership shall not make applicable any right of first refusal of the franchiser.

2002 Iowa Acts ch. 1063, § 39 (emphasis added).

We approach issues of statutory interpretation with the avowed purpose of determining the true intention of the legislature. Gardin v. Long Beach Mortgage Co., 661 N.W.2d 193, 197 (Iowa 2003); Bernau v. Iowa Dep’t of Transp., 580 N.W.2d 757, 761 (Iowa 1998). Our first step in ascertaining that intention is to closely examine the statute’s language. Bemau, 580 N.W.2d at 761. When the legislature has not defined the words of a statute, we look to prior decisions of this court, similar statutes, dictionary definitions, and common usage. Id.

We have recognized that section 322A.12 is intended to override any contrary provisions contained in a franchise agreement. Craig Foster Ford, Inc. v. Iowa Dep’t of Transp., 562 N.W.2d 618, 622 (Iowa 1997). Proceeding from that premise, we are convinced that a literal interpretation of section 322A.12, as it existed at the time of the challenged transaction, is entirely inconsistent with a recognition of a right of first refusal in the franchiser. In considering the district court’s reasoning, we are not persuaded that the identity of the new franchisee is not a significant element of the transaction from the perspective of the selling franchisee. The very existence of a right of first refusal could make a prospective buyer feel uncomfortable. Second, although certain matters important to the transferring franchisee might be included in the agreement of sale that the franchiser would be forced to match, this too might dissuade a prospective buyer from purchasing the franchise. Finally, and perhaps most important, the identity of the new franchisee may be of extreme importance to the existing franchisee in the case of a desire to sell to family members or close friends.

The statutory language provides “the franchiser shall give effect to such a change in the franchise.” In this context, “such” indicates “of the character, quality, or extent previously indicated or implied.” Merriam-Webster’s Collegiate Dictionary 1172 (10th ed.2002). “Change” is a word meaning “transformation.” Id. at 191. In the context of this statute, the words “such a change” manifestly refer to the specific franchise transfer that the parties have negotiated.

Given the language used in the agreement, the crucial question becomes whether a franchiser’s exercise of a right of first refusal constitutes a refusal to give effect to the sale or transfer of ownership. We are convinced that it does. It seems clear the right conferred by this statute was intended to be unfettered except as it has been limited by the statute. The only exceptions that the legislature has provided to the franchiser’s obligation to “give effect” to the change are the inability of the new franchisee to obtain a license or a successful challenge to the franchise under section 322A.11. Neither of those circumstances exist in the present case. We have recognized that the legislature may regulate by omission as well as by inclusion. Barnes v. Iowa Dep’t of Transp., 385 N.W.2d 260, 263 (Iowa 1986). This is particularly true when certain conditions of entitlement are listed and others are not. Id.; In re Estate of Wilson, 202 N.W.2d 41, 44 (Iowa 1972); N. Iowa Steel Co. v. Staley, 253 Iowa 355, 357, 112 N.W.2d 364, 365 (1961).

The appellees seek to confirm the validity of the district court’s interpretation of section 322A.12 by invoking the presumption that any material change in the language of a statute is presumed to alter the law. See State v. Ahitow, 544 N.W.2d 270, 273 (Iowa 1996). Based on this premise, they urge that the enactment of an express prohibition of rights of first refusal in the 2002 amendment to section 322A.12 indicates that such a right was not denied a franchiser by the statute prior to its amendment. This argument would be significant only if our attempt to determine the meaning of the act prior to the amendment left us with some doubt. For the reasons we have stated, it does not. In State v. Guzman-Juarez, 591 N.W.2d 1 (Iowa 1999), we expressed approval of the following principles in evaluating the effect of time and circumstances on the interpretation of a statutory amendment.

If [the amendment] follows immediately and after controversies upon the use of doubtful phraseology therein have arisen as to the true construction of the prior law it is entitled to great weight. If it takes place after a considerable lapse of time and the intervention of other sessions of the legislature, a radical change of phraseology would indicate an intention to supply some provisions not embraced in the former statute.

Guzman-Juarez, 591 N.W.2d at 3 (quoting People ex rel. Westchester Fire Ins. Co. v. Davenport, 91 N.Y. 574, 591-92 (1883)). There is reason to suspect that the 2002 amendment to section 322A. 12 was in direct response to the trial court’s decision in the present case. As such, we are convinced that it represents an attempt to clarify the meaning of the statute as it existed prior to the amendment.

Crivelli v. General Motors Corp., 215 F.3d 386 (3d Cir.2000), on which the appel-lees rely, is unpersuasive. Although that case upheld a franchiser’s right of first refusal with regard to a transfer of the franchise, the statutory protection afforded the franchisee merely provided that the franchiser shall “not unreasonably withhold consent” to a transfer of a franchise. As previously noted, section 322A.12 provides with regard to a franchise change that the franchiser shall give effect to such a change unless certain enumerated conditions exist. Those conditions have not been shown to exist in the present case.

Finally, we reject the appellees’ contention that our decision in Midwest Automotive III, L.L.C. v. Iowa Department of Transportation, 646 N.W.2d 417 (Iowa 2002), recognized a change in existing law. Significantly, the change recognized in that case involved a 2001 amendment to Iowa Code section 322A.11. We are dealing with a 2002 amendment to section 322A.12. In speaking generally of the situation involved in the present case, we stated in Midwest Automotive III that, short of termination or the absence of a license, the statute “requires a franchiser faced with the sale of a dealership to recognize the transfer.” 646 N.W.2d at 423.

We have considered all issues presented and conclude that the trial court erred in its interpretation of section 322A.12 as it existed at the time of the challenged transaction. The provisions of the. statute at that time rendered invalid the franchiser’s right of first refusal as contained in the franchise agreement. The judgment of the district court is reversed, and the case is remanded to that court for entry of a declaratory judgment consistent with this opinion.

REVERSED AND REMANDED.

      . The formal agreement originally named "A & L Holding Company” as the buyer and later designated "Auto Banc” as the buyer. Both of these corporations are controlled by John Chezik, and Chezik will be referred to as the party in interest throughout this opinion.


author: CADY, Justice. CARTER, Justice

text:
    STATE of Iowa, Appellee, v. Kirby Joe TRUESDELL, Appellant.
    No. 02-1529.
    Supreme Court of Iowa.
    May 12, 2004.

      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, Harold L. Denton, County Attorney, and Jerry Vander Sanden, Assistant County Attorney, for appellee.
   CADY, Justice.

It is commonly known that some consumer products — such as a variety of over-the-counter cold relief medications — contain chemicals used to manufacture methamphetamine (meth). As a result, our legislature has made it a crime for a person to possess a product containing such chemicals with the intent to use the product to manufacture a controlled substance. This appeal requires us to consider whether a violation of the statute occurs when, without other evidence, a person possesses products containing a controlled substance precursor in a quantity incompatible with normal personal consumption but compatible with the quantity needed to manufacture a standard batch of meth. We conclude substantial evidence did not support the conviction in this case. We vacate the decision of the court of appeals and affirm the district court judgment and sentence in part, reverse in part, and remand for dismissal of the charge of possession of a precursor with intent to use it to manufacture a controlled substance.

I. Background Facts and Proceedings

Kirby Joe Truesdell (Truesdell) was arrested on April 17, 2002, after he left a Hy-Vee store in Cedar Rapids with a grocery cart filled with seventy boxes of cold relief medication, together with a few food items, without stopping at the checkout counter to pay for the products. Truesdell entered the store during the early morning hours and placed virtually the entire stock of cold relief medication located on the store shelves into a shopping cart. His bizarre and brazen conduct caused a store employee to call the police, but Truesdell left the store through a back emergency door before they arrived. An assistant store manager observed Truesdell transfer the boxes of cold relief medication from the shopping cart into a Jeep Cherokee parked in the store parking lot. Truesdell then entered the driver’s door of the vehicle and the vehicle sped from the parking lot, nearly striking the employees who were approaching the vehicle.

Truesdell was observed a short time later, together with the Jeep Cherokee, at a trailer park located approximately two miles from the Hy-Vee store. The police transported two store employees to the trailer park, where they identified Trues-dell as the person who committed the theft. The identification was performed within thirty minutes to an hour from the time Truesdell left the parking lot of the store.

The police arrested Truesdell, and transported him to the county jail. While at the county jail, the police suspected he was intoxicated. His breath smelled of a strong odor of alcohol, his eyes were bloodshot, his pupils were dilated, and his speech was slurred. He was also loud and obstreperous at times. Truesdell declined to perform any sobriety test, and refused to give a breath sample for testing.

The police found the cold relief medication and groceries taken from the Hy-Vee store in the back seat of the Jeep Cherokee. The total value of the merchandise was $372.88. Each box of cold relief medication contained between twelve to forty-eight tablets. The police also discovered that Truesdell had been barred from operating a motor vehicle.

The cold relief medication taken by Truesdell contained pseudoephedrine, a chemical listed as a controlled substance precursor in Iowa Code section 124.401(4)(6) (2001). The presence of this chemical in the cold relief medication subjected the product to the prohibited possession provisions of section 124.401(4). Pseudoephedrine is a precursor, or an essential building block, used to manufacture meth, a highly addictive stimulant.

The most common recipe for manufacturing meth calls for 1000 to 1200 60-milligram tablets of cold medication containing pseudoephedrine. This amount of pseudoephedrine generally produces between one to two ounces of meth. Additional tablets would result in more meth. The quantity of tablets taken by Truesdell from the Hy-Vee store was the equivalent of around 1500 60-milligram tablets.

These facts and others were introduced during the course of a jury trial in this case. Additionally, Truesdell testified that he did not know how meth was manufactured, and further told the jury that he planned to sell the cold relief medication to a friend. Truesdell also testified he consumed beer earlier in the evening, but was sober at the time he was placed in police custody. He admitted to taking the cold relief medication, but testified his cousin actually drove the vehicle from the Hy-Vee parking lot. Other than the possession of the medication, the State introduced no other evidence pointing to Trues-dell’s involvement in the manufacturing of meth.

The jury found Truesdell guilty of OWI, third offense, possession of precursors with intent to manufacture meth, driving while barred, and theft in the fourth degree. The district court entered judgments and imposed sentences for all four convictions. Truesdell appeals from the judgment and sentence entered for the OWI and the possession of precursors.

On appeal, Truesdell asseverates there was insufficient evidence to support the convictions. He points to the absence of any evidence that he was intoxicated during the time he was observed operating a motor vehicle. He also claims there was no evidence to show he intended to use the cold relief medication to manufacture meth. In response to the State’s argument that these alleged errors were not properly preserved at trial through a specific motion for judgment of acquittal, Truesdell asserts his trial counsel was ineffective for failing to specifically identify the insufficiency of the evidence to support the convictions in making the motion.

We transferred the case to the court of appeals. It found Truesdell waived his claim of insufficient evidence by raising it for the first time on appeal. Yet, it decided to preserve the claim of ineffective assistance of counsel for postconviction relief. We granted further review.

II. Scope of Review.

“We review claims of ineffective assistance of counsel de novo.” State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). Our review of claims of insufficient evidence to support a conviction is for correction of errors at law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). Substantial evidence exists to support a verdict when the record reveals evidence that a rational trier of fact could find the defendant guilty beyond a reasonable doubt. Id. In making this determination, “[w]e view the evidence in the light most favorable to the verdict,” including all reasonable inferences that may be deduced from the record. State v. Gay, 526 N.W.2d 294, 295 (Iowa 1995).

III. Preservation of Error.

To preserve error on a claim of insufficient evidence for appellate review in a criminal case, the defendant must make a motion for judgment of acquittal at trial that identifies the specific grounds raised on appeal. See State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996). In this case, trial counsel for Truesdell moved for a judgment of acquittal at the close of the State’s case and again at the close of all the evidence. However, he failed to specifically raise the sufficiency of the evidence claim now raised on appeal. Thus, error was not preserved.

The failure of trial counsel to preserve error at trial can support an ineffective assistance of counsel claim. Ordinarily, ineffective assistance of counsel claims are best resolved by postconviction proceedings to enable a complete record to be developed and afford trial counsel an opportunity to respond to the claim. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). Yet, in some instances, the appellate record can be adequate to address the claim on direct appeal. Id. at 246. When the record is adequate, the appellate court should decide the claim on direct appeal. See State v. Rubina, 602 N.W.2d 558, 563 (Iowa 1999). Preserving ineffective assistance of counsel claims that can be resolved on direct appeal wastes time and resources.

A claim of ineffective assistance of trial counsel based on the failure of counsel to raise a claim of insufficient evidence to support a conviction is a matter that normally can be decided on direct appeal. See State v. Scalise, 660 N.W.2d 58, 62 (Iowa 2003). Clearly, if the record in this case fails to reveal substantial evidence to support the convictions, counsel was ineffective for failing to properly raise the issue and prejudice resulted. On the other hand, if the record reveals substantial evidence, counsel’s failure to raise the claim of error could not be prejudicial. Consequently, the claim of ineffective assistance of counsel in this case can and should be addressed on direct appeal.

IV. Sufficiency of Evidence for OWI.

The crime of operating while intoxicated has two elements. The state must first prove the defendant operated a motor vehicle. Iowa Code § 321J.2. Second, the state must prove the defendant was, at the time, “under the influence of an alcoholic beverage or other drug,” or some combination, or had an excessive blood alcohol level. Id. Truesdell does not argue there was insufficient evidence to show he was under the influence or that he operated a motor vehicle. Instead, he asserts there was insufficient evidence to show he was under the influence while he operated a motor vehicle. He points out that the witnesses who observed him driving a vehicle and the police officers who later arrested him at the trailer park did not testify to any facts at trial concerning his state of intoxication. Consequently, he claims the evidence in the case only showed he was under the influence while at the jail.

Truesdell correctly argues that the State must establish that he was intoxicated at the time he operated a motor vehicle. Nevertheless, the record reveals substantial evidence to support such a finding in this case.

We have previously said that a person is “under the influence” when the consumption of alcohol affects the person’s reasoning or mental ability, impairs a person’s judgment, visibly excites a person’s emotions, or causes a person to lose control of bodily actions. See State v. Dominguez, 482 N.W.2d 390, 392 (Iowa 1992). In this case, the jury could have believed Truesdell’s unusual and audacious conduct in the grocery store showed an impaired judgment and ability to reason. Truesdell also drove the vehicle at a high rate of speed, and nearly struck store employees in the parking lot. Additionally, Truesdell acknowledged he consumed alcohol prior to the incident and police observed numerous signs of alcohol intoxication after he was arrested an hour or so after he was observed operating the vehicle. Under this record, there was substantial evidence to support a finding that Truesdell was under the influence of an alcoholic beverage at the time he operated a motor vehicle.

V. Sufficiency of the Evidence for Possession of a Precursor With Intent.

The operative element of the possession of a precursor crime under examination in this case requires the State to establish beyond a reasonable doubt that Truesdell possessed the cold relief medication “with the intent to use the product to manufacture any controlled substance.” Iowa Code § 124.401(4). Truesdell argues that the State was required, and failed, to present evidence that he intended to manufacture meth.

Before tackling this issue, it is necessary to examine the intent element in section 124.401(4). Although we have found sufficient evidence to support the intent element of the statute in a prior case, we have never fully considered the meaning of the “intent to use the product to manufacture any controlled substance” language. See State v. Heuser, 661 N.W.2d 157, 166 (Iowa 2003); Iowa Code § 124.401(4).

“Our goal in construing statutes is to ascertain ... legislative intent.” Locate.Plus.Com., Inc. v. Iowa Dep’t of Tramp., 650 N.W.2d 609, 616 (Iowa 2002). We apply statutes as written by our legislature, and resort to our rules of construction in the event of an ambiguity. State v. Albrecht, 657 N.W.2d 474, 479 (Iowa 2003). An ambiguity in a criminal statute is normally resolved in favor of the defendant. State v. Maher, 618 N.W.2d 303, 305 (Iowa 2000).

In this case, we observe that our legislature very recently amended section 124.401(4). See 2004 Iowa Acts ch. - (S.F. 2101, 80th General Assemb., effective July 1, 2004). Under the amendment, the intent element is changed to prohibit possession of a product “with the intent that the product be used to manufacture any controlled substance.” Id. The legislature removed the phrase “to use the product” and replaced it with the phrase “that the product be used.” Id.

A change in a statute can indicate either intent by the legislature to change the law or intent to clarify the original statute. Tiano v. Palmer, 621 N.W.2d 420, 423 (Iowa 2001). This observation is important in this case because an intent to change the statute under consideration in this case would be consistent with the view that the intent element of the prior statute was limited to an intent that the defendant use the product to manufacture a controlled substance.

Generally, a material modification of the language of a statute gives rise to “a presumption that a change in the law was intended.” Midwest Auto. III, LLC v. Iowa Dep’t of Transp., 646 N.W.2d 417, 425 (Iowa 2002); see 1A Norman J. Singer, Statutes and Statutory Construction § 22.1, at 240-41 (6th ed.2002). The existence of this presumption is enhanced “when the amendment follows a contrary ... judicial interpretation of an unambiguous statute.” Midwest Auto. III, LLC, 646 N.W.2d at 425.

In this case, the Iowa Court of Appeals filed an unpublished decision on January 29, 2003, that held the intent element of section 124.401(4) is limited to an intent by the accused to use the product to manufacture a controlled substance. See State v. Pickerell, 662 N.W.2d 371 (Iowa Ct.App. 2003) (unpublished table decision, full text available at 2003 WL 183392). Moreover, the court of appeals specifically found that the statute was unambiguous. See id. We think these factors support a presumption that our legislature intended to change the statute by the subsequent amendment. We also observe that the State in this case did not argue on appeal that section 124.401(4) should be broadly read to in-elude an intent that the product be used to manufacture a controlled substance.

As a legislative change, the amended statute is applied prospectively. See Iowa Code § 4.5; Frideres v. Schütz, 540 N.W.2d 261, 264 (Iowa 1995). This means the conduct of Truesdell in this case must be judged under the statute that existed at the time of the offense. We conclude this statute required the defendant intend to use the product to manufacture a controlled substance. See Iowa Code § 124.401(4).

We acknowledge the quantity of cold relief medication possessed by Truesdell was indicative of criminal activity. The quantity was strong circumstantial evidence that the product was to be used to manufacture meth. However, the statute under which Truesdell was charged is directed at the intent of the possessor to use the product to manufacture a controlled substance, not the mere knowledge or belief of the possessor that the product would be used to manufacture a controlled substance. This is a critical distinction because the evidence in this case equally supports two reasonable inferences pertaining to the possessor’s state of mind, yet only one is covered under the statute. First, the quantity of cold medication possessed in this case is circumstantial evidence that Truesdell himself intended to manufacture meth. Second, the quantity of cold medication possessed is circumstantial evidence that Truesdell reasonably knew the cold medication would be used by another to manufacture meth. The first inference is evidence that supports a conviction under the statute, but the second is not.

Inferences drawn from the evidence must raise a fair inference of guilt on each essential element, including the element of intent. See State v. Speicher, 625 N.W.2d 738, 741 (Iowa 2001). Inferences that do no more “than create speculation, suspicion, or conjecture” do not create a fair inference of guilt. State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002). Under these standards, when two reasonable inferences can be drawn from a piece of evidence, we believe such evidence only gives rise to a suspicion, and, without additional evidence, is insufficient to support guilt. See Holder v. State, 124 S.W.3d 439, 444 (Ark.2003); Commonwealth v. Williams, 54 Mass.App.Ct. 236, 764 N.E.2d 889, 897-98 (2002). In such a situation, a jury would necessarily be required to rely upon conjecture to reach a verdict of guilt. See Speicher, 625 N.W.2d at 742-43 (presence of two individuals together at the scene of a meth lab sufficient to infer knowledge of manufacturing, but insufficient to infer conspiracy to manufacture). Some other evidence of guilt is required to support a conviction.

We found substantial evidence to support a conviction of possession of a precursor with intent to manufacture meth in violation of Iowa Code section 124.401(4) based upon the possession of a large quantity of cold relief tablets containing pseu-doephedrine in State v. Heuser, 661 N.W.2d at 166. However, there was also evidence in the case that the defendant possessed lithium batteries, another common product used in meth manufacturing. Id. Additionally, there was evidence that the defendant purchased the cold relief products in a surreptitious manner. See id. Some of the boxes of medicine in his possession had also been opened. See id. at 160. Although there was no direct evidence of manufacturing, we found all the circumstances in the case constituted substantial evidence to support the element of intent to manufacture. Id. at 166.

On the other hand, evidence of possession of a precursor, without more, is insufficient to support the essential element of intent to manufacture. In United States v. Weston, 4 F.3d 672 (8th Cir.1993), the court found insufficient evidence to support a conviction for possession with intent to manufacture meth based solely upon the defendant’s possession of a gallon container of a chemical used to manufacture meth. Although the possession was highly suspicious, and the circumstances revealed the chemical was most likely going to be used to make illegal drugs, the court found the act of possessing the chemical reasonably indicated the defendant either intended to be involved in the manufacture of meth or intended to supply the product to another to use in the manufacture of meth. Id. at 674-75. Consequently, without additional evidence, the jury would have had to speculate to find intent to manufacture. Id. at 675.

In this case, Truesdell’s possession of a large quantity of the cold relief products supports an inference that some person would use the product to manufacture meth, but there was no additional evidence to show he intended to use the product to manufacture meth. Without additional evidence of intent, the jury would have had to guess to reach the conclusion that Truesdell intended to manufacture meth. It was just as likely under the evidence that Truesdell intended for the product to end up in the hands of another person who would manufacture the meth. See id. Thus, we conclude that the possession of a large quantity of product, without additional evidence, either direct or circumstantial, is insufficient proof of intent to manufacture under the statute. There was no additional evidence in this case. Accordingly, we find there was insufficient evidence to support a conviction under section 124.401(4). As a matter of law, counsel was ineffective for failing to raise this issue and prejudice resulted.

VI. Conclusion.

We affirm the judgment and sentence of the district court for OWI third offense, driving while barred, and theft in the fourth degree. We reverse the judgment and sentence for possession of a precursor with intent to manufacture, and remand for dismissal of the charge. The State failed to establish sufficient evidence to support the conviction of guilt under section 124.401(4).

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

All justices concur except CARTER and LARSON JJ., who dissent.

CARTER, Justice

(dissenting).

I dissent.

I do not perceive a sufficient distinction between the facts of this case and the facts of State v. Heuser, 661 N.W.2d 157, 166 (Iowa 2003), to warrant a different result. In Heuser we held that intent to manufacture could be inferred from the possession of an unusually large amount of pseu-doephedrine by one who also possessed lithium batteries that might be of use in the manufacturing process. Much emphasis was placed on the surreptitious manner in which these substances were acquired.

Guilty knowledge is equally inferable in the present case from the fact that the pseudoephedrine was brazenly ripped off in the store and quickly removed from the premises by a speeding automobile. The scenarios in the two cases are equally probative of intent to manufacture a prohibited controlled substance.

The alternative scenario, which the majority proposes as being equally probative, i.e., that the precursor was to be used by another in the manufacturing process, would have been equally plausible in the Heuser case. I would affirm the judgment of the district court.

LARSON, J., joins this dissent.

      . Iowa Code section 124.401(4) (2001) provides in relevant part:
      A person who possesses any product containing any of the following commits a class "D” felony, if the person possesses with the intent to use the product to manufacture any controlled substance:

        b. Pseudoephedrine, its salts, optical isomers, salts of optical isomers, or analogs of pseudoephedrine.

      . In State v. Pickerell, 662 N.W.2d 371 (Iowa Ct.App.2003) (unpublished table decision, full text available at 2003 WL 183392), our court of appeals observed:
      We think the logical interpretation of the phrase “person possesses with the intent to use” is that the possessor must intend to personally “use” the precursor, that is be personally involved in the manufacturing process. To interpret this statute as the state urges would require us to read the statute as if it stated, "if the person possesses with the intent the product be used to manufacture any controlled substance.”
      The empahsized phrase comtemplated by the court of appeals is the exact phrase adopted by our legislature in the amended statute. See 2004 Iowa Acts ch. -- (S.F. 2101, 80th General Assemb., effective July 1, 2004). We also observe that federal courts have interpreted 21 U.S.C. § 841(d)(1) (2000), which, like Iowa Code section 124.401(4), prohibits the possession of certain listed chemicals “with the intent to use the product to manufacture” illegal drugs, to require that the possessor intend to directly or indirectly engage in the manufacture. Compare United States v. Weston, 4 F.3d 672, 674-75 (8th Cir.1993) (interpreting 21 U.S.C. § 841(d)(1)), with United States v. Anderson, 61 F.3d 1290, 1295 n. 3 (7th Cir.1995) (interpreting 21 U.S.C. § 841(d)(2), which prohibits “possess[ion] or distribution] [of] a listed chemical knowing, or having reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance....”).

      . The State did not prosecute Truesdell under an aiding and abetting theory, or under a conspiracy theory. Additionally, we do not believe possession of cold medication with the intent to deliver it to a meth manufacturer would fall within the "intent to use the product to manufacture any controlled substance” language. See Iowa Code § 124.101(16) (defining the term "manufacture” for purposes of chapter 124).


author: TERNUS, Justice.

text:
    STATE of Iowa, Appellee, v. Isidro MARTINEZ, Appellant.
    No. 02-1278.
    Supreme Court of Iowa.
    May 12, 2004.

      Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Gary Kendell, County Attorney, and Ryan Ellis, Assistant County Attorney, for appellee.
   TERNUS, Justice.

The defendant,. Isidro Martinez, was convicted of delivery of a controlled substance (methamphetamine) and failure to affix a drug tax stamp. On appeal, he contends the trial court erred in instructing the jury with respect to the jury’s use of evidence of the defendant’s character and reputation for honesty, trustworthiness, and dependability. Although defense counsel requested an instruction allowing this evidence to be used as direct evidence of the defendant’s innocence, the court informed the jury instead that testimony concerning the defendant’s character and reputation for truthfulness could be considered only on the issue of the defendant’s credibility. Martinez also raises three claims of ineffective assistance of counsel.

Upon our review of the record and the parties’ arguments, we find no error in the trial court’s refusal to give the defendant’s requested instruction on the jury’s use of character evidence. Because the record is inadequate to allow us to determine Martinez’s ineffective-assistance claims on appeal, we preserve these matters for a possible postconviction relief action. In light of our conclusions, we affirm the defendant’s convictions and sentences.

I. Background Facts and Proceedings.

In the fall of 2001 Terry Banker agreed to cooperate with the police in exchange for the dismissal of pending drug charges against him. He told the authorities that the defendant, Isidro Martinez, had agreed to sell him “an ounce and a teener” — an ounce and seven grams — of methamphetamine for $1200, $1000 now and $200 later. The police made arrangements for a controlled drug buy between Banker and the defendant on the evening of November 2.

After the police determined Banker had no drugs on his person or in his vehicle, they gave Banker $1000 in cash, having previously recorded the serial numbers of the bills. With the police present, Banker telephoned Martinez and arranged to meet him at a convenience store so Martinez could follow Banker to the gravel road where the drug buy would take place.

Banker was kept under surveillance as he drove to the convenience store and from there to the gravel road. Once on the gravel road, Banker and Martinez pulled their vehicles ohto the shoulder and Martinez got into Banker’s car. After a few minutes, Martinez exited Banker’s vehicle, at which time the police arrested both men.

After informing Martinez that he was under arrest for delivering methamphetamine, a law enforcement officer gave the defendant his Miranda rights. The officer then asked Martinez some general information, i.e., where he lived and what he was doing out there. According to the officer, Martinez did not really answer these questions. A search of the defendant uncovered over $700 in cash, in addition to the $1000 controlled buy money.

The authorities’ search of Banker’s vehicle revealed two plastic bags of a substance later identified as methamphetamine, in an amount consistent with the order placed by Banker. A drug dog searched Martinez’s car and indicated some areas around the glove box where drugs had possibly been located. In addition, an area under the hood of the defendant’s car appeared to have been modified and, at some point, used to conceal drugs.

Martinez was charged with delivery of a controlled substance, more than five grams of methamphetamine, in violation of Iowa Code section 124.401(1)(6 )(7) (2001), and failure to affix a tax stamp, in violation of Iowa Code sections 453B.3 and 453B.12. At trial Banker and the police officers involved in the controlled buy testified, in general, to the information set forth above.

In his defense, Martinez called three witnesses, his wife, his boss, and a coworker, who testified without objection concerning the defendant’s character and reputation. Martinez’s wife testified that she “believe[d] him to be an honest person and basically straightforward ... very open about everything.” She said that on the evening of his arrest, her husband talked to her about the possibility of getting a loan from his boss at the concrete company where Martinez worked.

Martinez’s boss, David McCrory, testified and described Martinez as honest and trustworthy. McCrory stated that Banker, who also worked for McCrory, was not dependable and had a reputation in the community for not being truthful or honest. McCrory recalled that on the day of Martinez’s arrest, Martinez had approached him about a loan to buy a truck, but McCrory denied loaning Martinez any money.

Sandra Tijerina, the former officer manager at the concrete company, also testified on the defendant’s behalf. She said Martinez had a reputation in the community for honesty and truthfulness. She testified he was always at work, arrived on time, worked as long as he needed to work, and was helpful.

The defendant took the stand and denied ever selling methamphetamine to Banker. He claimed Banker called him on the night in question to meet and have a drink. Martinez said he bought some beer at the convenience store and then followed Banker. The defendant claimed that once he got into Banker’s car, Banker asked Martinez to keep some money for him because Banker did not want his wife to find out about it. According to Martinez, Banker said he was having marital problems.

Martinez claimed that when he was arrested he told the police that he was there to have some drinks with a friend. He admitted he did not tell the officers that Banker had asked Martinez to hold cash for Banker. The defendant denied ever selling drugs or modifying his car so that drugs could be concealed in it.

The jury found the defendant guilty of both charges. After sentencing, Martinez filed this appeal.

II. Character and Reputation Instruction.

The defendant asked the trial court to instruct the jury that it could consider evidence of the defendant’s character and reputation for truthfulness in determining whether a person of such character and reputation would be likely to commit the crimes charged. See Iowa R. Evid. 5.404(a )(1) (permitting evidence “of a pertinent trait of the defendant’s character” for the purpose of proving the defendant acted in conformity with this trait at the time of the offense). Instead, the court instructed the jury that it could consider evidence about the defendant’s and Banker’s characters and reputations for truthfulness “only in deciding whether to believe the testimony of these witnesses, and how much weight to give it.” See Iowa Rs. Evid. 5.607, 5.608 (permitting evidence of character for truthfulness or untruthfulness to attack or support the credibility of a witness). See generally People v. Miller, 890 P.2d 84, 94-96 (Colo.1995) (discussing the differences between admitting evidence under rule 404(a)(1) and rule 608(a)). Martinez claims on appeal that the trial court erred in failing to give his requested instruction because Martinez’s honesty was a central issue in the case.

We review the trial court’s refusal to give a requested instruction for correction of errors at law. Lynch v. Saddler, 656 N.W.2d 104, 107 (Iowa 2003). “As long as a requested instruction correctly states the law, has application to the case, and is not stated elsewhere in the instructions, the court must give the requested instruction.” State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996). When we apply these principles to the facts presented, we conclude the court did not err because the requested instruction is not applicable to this case.

Generally, evidence regarding the accused’s character and reputation is not admissible to demonstrate the likelihood that the accused committed the charged offense. See Iowa R. Evid. 5.404(a); 7 James A. Adams and Joseph P. Weeg, Iowa Practice: Evidence § 5.404.2, at 186 (2003) [hereinafter “Iowa Practice: Evidence ”]. An exception is recognized, however, where the defendant offers evidence “of a pertinent trait of the [accused’s] character.” Iowa R. Evid. 5.404(a)(1) (emphasis added); see Miller, 890 P.2d at 91. A character trait is “pertinent” if it is particularly “involved in the crime alleged.” State v. Hobbs, 172 N.W.2d 268, 271 (Iowa 1969); accord Iowa Practice: Evidence § 5.404.2, at 186; see also State v. Brown, 592 A.2d 163, 164-65 (Me.1991) (“A trait is pertinent if the existence or nonexistence of the trait would be involved in the commission or noncommission of the particular crime charged ... even if the trait of character is not an essential element in the case.”); State v. Bogle, 324 N.C. 190, 376 S.E.2d 745, 751 (1989) (“In criminal cases, in order to be admissible as a ‘pertinent’ trait of character, the trait must bear a special relationship to or be involved in the crime charged.”). As one writer has stated, “the trait of character offered by the defendant should be closely or strongly related to the criminal behavior in issue.” H. Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic and Injustice in the Courtroom, 130 U. Pa. L.Rev. 845, 853 (1982) [hereinafter “Uviller Article”].

Whether the trait is pertinent is a question different from whether the evidence is relevant. As this court has noted, one reason “[a] specific rule is required in order to exclude [character] evidence [is] because it otherwise qualifies for admission under general relevancy standards.” See State v. Barrett, 401 N.W.2d 184, 187 (Iowa 1987); accord 1 John W. Strong, McCormick on Evidence § 186, at 649 (5th ed. 1999) (“Evidence of the general character of a party or witness almost always has some probative value .... ”), § 188, at 654 (“evidence that an individual is the kind of person who behaves in certain ways almost always has some value as circumstantial evidence of how this individual acted ... in the matter in question”), § 190, at 658-59 (noting that while evidence of bad character “would not be irrelevant” in a criminal case, “the dangers of prejudice, confusion and time-consumption outweigh the probative value” of such evidence) [hereinafter “McCormick on Evidence ”]. Thus, the evidence falling within the exception found in rule 4.404(a)(1) is subjected to a more exacting standard than merely showing its relevancy to the defendant’s general propensity to commit a crime. Rather, the trait itself must directly relate to a particular element or facet of the crime charged. See Stitt v. State, 102 S.W.3d 845, 849 (Tex.Ct.App.2003) (“A pertinent character trait is ‘one that relates to a trait involved in the offense charged or a defense raised.’ ”); McCormick on Evidence § 191, at 673 (stating “pertinent traits” are “those involved in the offense charged”); Uviller Article, 130 U. Pa. L.Rev. at 853 (stating the relevancy of a particular trait “is found in the assessment that its establishment makes less likely the occurrence of the specific item of behavior attributed to the defendant”).

Our prior cases illustrate this requirement. For example, in Hobbs, the defendant was charged with aggravated robbery. 172 N.W.2d at 270. We held the traits implicated in a robbery charge were “honesty, integrity, and good citizenship,” while the aggravation aspect of the crime concerned “the specific traits of peacefulness and nonviolence.” Id. at 271; see also Iowa Practice: Evidence § 5.404.2, at 186 (stating “in an assault case, the accused can introduce his character trait of peacefulness”). In a later ease, State v. Kramer, 231 N.W.2d 874, 876-77 (Iowa 1975), we considered the admissibility of testimony of the defendant’s “good” character where the defendant was accused of breaking and entering. We affirmed the trial court’s refusal to give a proposed instruction that this testimony could be used as direct evidence of the defendant’s innocence, noting “the testimony did not relate to the particular character traits involved in the crime charged.” Kramer, 231 N.W.2d at 877 (citing Hobbs, 172 N.W.2d at 271).

The question raised in this case, then, is whether the character traits to which the defendant’s witnesses testified without objection — honesty, trustworthiness, and dependability — are pertinent to the crimes of delivery of methamphetamine and failure to' affix a tax stamp. Although our court has not faced this precise issue, a few other courts have considered the admissibility of character evidence as substantive proof that the defendant was innocent or guilty of similar crimes. See United States v. Jackson, 588 F.2d 1046, 1055 (5th Cir.1979); Miller, 890 P.2d at 91-96; State v. Rabe, 5 Haw.App. 251, 687 P.2d 554, 562-63 (Haw.Ct.App.1984).

In Jackson, the defendant was charged with conspiracy to distribute heroin and possession of heroin with the intent to distribute. 588 F.2d at 1048. The appellate court held the trial court properly excluded evidence of the defendant’s reputation for truth and veracity because these traits were not pertinent to the crimes charged. Id. at 1055. In Miller, the defendant was charged with possession and distribution of cocaine. 890 P.2d at 86. The court held the defendant’s “character for truthfulness was not a trait ‘pertinent’ to his drug offense.” Id. at 96. Finally, in Rabe, the defendant, charged with conspiracy to distribute marijuana in prison, offered proof of numerous character traits that he claimed should be admitted under rule 404(a)(1). 687 P.2d at 562. The Hawaii court of appeals held “that the traits of reliability, dependability, diligence, amiability, reasonableness, decency, honesty, truthfulness, and abstinence from alcohol [were] not pertinent to the crime of conspiracy to promote prison contraband (in the form of marijuana).” Id.

We reach the same conclusion as these courts in our consideration of whether the witnesses’ testimony in this case concerning the defendant’s traits of honesty, trustworthiness, and dependability is evidence of “pertinent traits” so as to constitute direct proof of the defendant’s innocence. These traits are not strongly related to the criminal behavior at issue here — the delivery of methamphetamine and the failure to affix a drug tax stamp. Therefore, the trial court did not err in refusing to instruct the jury that it could consider this testimony as substantive evidence of Martinez’s commission or noncommission of the charged offenses. See Kramer, 231 N.W.2d at 877 (holding trial court correctly refused requested instruction on legal effect of character evidence because “the testimony did not relate to the particular character traits involved in the crime charged”).

III. Inejfective-Assistance-of-Counsel Claims.

In order to prevail on a claim of ineffective assistance of counsel, the defendant must prove “(1) counsel failed to perform an essential duty; and (2) this failure resulted in prejudice.” State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999). Although such claims are generally reserved for postconviction relief actions, we will resolve them on a direct appeal of the criminal conviction in two situations:

If the record on appeal shows ... that the defendant cannot prevail on such a claim as a matter of law, we will “affirm the defendant’s conviction without preserving the ineffective-assistance-of-counsel claims.” Conversely, if the record on appeal establishes both elements of an ineffective-assistance claim and an evidentiary hearing would not alter this conclusion, we will reverse the defendant’s conviction and remand for a new trial.

State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003) (citations omitted).

We turn now to the three bases upon which the defendant rests his claim of ineffective representation. The defendant claims his counsel should have objected to testimony elicited by the prosecutor that improperly commented on the defendant’s right to remain silent. See Doyle v. Ohio, 426 U.S. 610, 611, 96 S.Ct. 2240, 2241, 49 L.Ed.2d 91, 94 (1976) (holding prosecutor’s cross-examination of defendant with respect to defendant’s failure to tell exculpatory story after receiving Miranda warnings at time of arrest was an improper “use of the defendant’s post-arrest silence” in violation of due process). Martinez also contends his counsel failed to advise him that, as a Mexican national, he had a right to confer with the Mexican Consulate. See Ledezma v. State, 626 N.W.2d 134, 152 (Iowa 2001) (holding defense counsel should advise defendant of right to consular access). Finally, the defendant alleges his attorney should have objected to the State’s improper presentation of evidence concerning the absence of tax stamps during a witness’s redirect examination.

We conclude the record before us is not adequate to resolve the defendant’s claims on direct appeal. The State and Martinez’s trial attorney should be given the opportunity to address these matters in an evidentiary hearing. Thus, the defendant’s ineffective-assistanee-of-counsel claims must be preserved for a possible postconviction relief action.

Finding no basis for reversal, we affirm.

AFFIRMED.


author: LARSON, Justice.

text:
    Donald R. RETHAMEL d/b/a Donald R. Rethamel Construction, Appellant, v. Stephen A. HAVEY, Appellee.
    No. 03-0076.
    Supreme Court of Iowa.
    May 12, 2004.

      D. Brian Scieszinski of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellant.
    Jackie D. Armstrong and Robert S. Kinsey III of Brown, Kinsey & Funkhouser, P.L.C., Mason City, for appellee.
   LARSON, Justice.

Stephen Havey obtained an award of workers’ compensation benefits from Donald R. Rethamel based on an injury suffered by Havey during his temporary employment with Rethamel. The award was affirmed on judicial review, and the court of appeals affirmed. The sole issue before us in this appeal is one that is only collateral to the issues previously decided by the court of appeals. The issue here concerns the permissible scope of a district court judgment entered under Iowa Code section 86.42 (2001) to enforce the commissioner’s award. The district court modified the award, and we conclude this was error.

I. Facts and Prior Proceedings.

Stephen Havey was injured on January 21, 1997, while working for Donald R. Re-thamel Construction. Havey filed a workers’ compensation claim, and a deputy commissioner awarded benefits to him. The commissioner affirmed, and on Retha-mel’s petition for judicial review, the district court affirmed as well. Rethamel appealed, and the court of appeals affirmed the award, holding that substantial evidence supported the commissioner’s finding that Havey was employed by Re-thamel at the time he was injured.

II. Discussion.

The commissioner’s award, which was affirmed in subsequent judicial-review proceedings, ordered:

That defendant shall pay claimant healing period benefits from January 21, 1997 to May 5, 1997, at the rate of two hundred sixty-eight and 06/100 dollars ($268.06).
That defendant shall pay claimant fifty (50) weeks of permanent partial disability benefits at the rate of two hundred sixty-eight and 06/100 dollars ($268.06) to commence on May 6, 1997.
That defendant shall pay the reasonable and necessary medical expenses as outlined in this decision.
That all accrued benefits shall be paid in a lump sum.
That defendant pay interest as provided by Iowa Code section 85.30.
That defendant pay the costs of this action, pursuant to rule 876 IAC 4.33.
That defendant shall file claim activity reports as requested by the agency.

Iowa Code section 86.42 provides for conversion of a workers’ compensation award into a district court judgment for purposes of collection. It provides:

Any party in interest may present a certified copy of an order or decision of the commissioner, ... and all papers in connection therewith, to the district court where judicial review of the agency action may be commenced. The court shall render a decree or judgment and cause the clerk to notify the parties. The decree or judgment ... has the same effect and in all proceedings in relation thereto is the same as though rendered in a suit duly heard and determined by the court.

Apparently, only five cases have been decided by our court under section 86.42, and none of them consider the issue raised in this appeal. Those cases are Zeigler v. Fleetguard, Inc., 675 N.W.2d 581 (Iowa 2004); Simonson v. Snap-On Tools Corp., 588 N.W.2d 430 (Iowa 1999); Firstar Bank v. Hawkeye Paving Corp., 558 N.W.2d 423 (Iowa 1997); Krohn v. State, 420 N.W.2d 463 (Iowa 1988); and Klein v. Furnas Electric Co., 384 N.W.2d 370 (Iowa 1986).

Workers’ compensation cases involving both judicial-review proceedings and judgments under section 86.42 result in two judgments' — one that resolves the issues decided by the commissioner and one that provides the vehicle for collection of the workers’ compensation award under Iowa Code section 86.42. See Zeigler, 675 N.W.2d at 583-84.

In the present case, Havey complied with section 86.42 by presenting a certified copy of the commissioner’s decision to the district court. However, he went further; he presented additional evidence and additional claims to the district court and asked that the commissioner’s award be modified accordingly.

Rethamel, Havey’s employer, resisted the application for judgment on the grounds: (1) it requested a judgment for medical expenses that would be contrary to statute and the commissioner’s award, (2) it requested payment of interest not included in the original award, and (3) it requested credit for attorney fees for collection of payments from third-party medical providers. None of these issues had been raised in the workers’ compensation proceeding. Rethamel requested that the application for judgment be dismissed or recalculated to reflect only those awards made by the commissioner. In the alternative, Rethamel asks that the case be remanded to the commissioner, who has the authority to take evidence and, if necessary, modify the prior award.

III. Legal Principles.

Under statutes like section 86.42, a district court is bound to enter a judgment in conformance with the workers’ compensation award. See Iowa Code § 86.42 (on presentation of copy of commissioner’s decision, the court shall enter judgment); 101 C.J.S. Workers’ Compensation § 1480, at 317 (2000).

General jurisdiction is not given to a court to determine any question of fact or law necessary to support the award as rendered by the Workers’ Compensation Board or Commission in the first instance; at the time application is made to enter judgment on the record the rights of claimant have been established.
The court must render a judgment in accordance with the award. The court has no power to change the award, it cannot review, or reverse or modify the award, or construe the statute. In rendering judgment thereon the court can construe the award.

101 C.J.S. § 1480, at 317 (footnotes omitted) (emphasis added).

One court has observed that, until an award has been modified or set aside by the industrial commissioner, no court has authority to modify it. The court said that, on the filing of a certified copy of an award, “it was as much the clear legal duty of the judge ... to render judgment in accordance with the award as it would be to render judgment upon a finding or verdict.” State ex rel. Maines v. Scott Circuit Ct., 203 Ind. 572, 181 N.E. 523, 524 (1932); see also St. Louis Pressed Steel Co. v. Schorr, 303 Ill. 476, 135 N.E. 766, 767 (1922) (“[0]n application for judgment on the award the court has no jurisdiction to review the decision, construe the statute, or determine whether the decision of the board was correct or not.”).

[Rendering judgment so that execution may be had [on a workers’ compensation case] is the exercise of a ministerial function, and the mere method provided by the Legislature for enforcing the collection by legal process of the amount already legally ascertained to be due, that is by execution ... or any other appropriate process for enforcing a judgment.

Richmond Cedar Works v. Harper, 129 Va. 481, 106 S.E. 516, 520 (1921).

On an application for entry of a judgment, a court may, however, construe the award. State ex rel. Maines, 181 N.E. at 525; 101 C.J.S. § 1480, at 317; see Krohn, 420 N.W.2d at 464-65 (construing award to worker for medical expense to be satisfied by employer’s arrangement to pay medical suppliers directly).

We conclude the district court lacked authority under Iowa Code section 86.42 to expand on the workers’ compensation award. Therefore, the judgment must be vacated and the case remanded to the district court to enter a judgment in conformity with the commissioner’s award. Any remaining issues shall be resolved at the time of execution or by a separate action, outside Iowa Code section 86.42, between the parties.

JUDGMENT VACATED; CASE REMANDED.