author: STREIT, Justice.

text:
    In the Matter of the ESTATE of Helen E. GRAHAM, Deceased. Mary G. Sacco and Julie Ann Jones, Executor of the Estate of Dorothy A. DeVore, Appellants, v. Susan A. Richardson, Executor of the Estate of Helen E. Graham, and Susan A. Richardson, Individually, Appellee.
    No. 03-1817.
    Supreme Court of Iowa.
    Dec. 17, 2004.

      Richard O. McConville of Coppola, San-dre, McConville & Coppola, P.C., West Des Moines, and Richard J. Murphy, Osceola, for appellants.
    G. Stephen Walters of Jordan, Oliver & Walters, P.C., Winterset, for appellee.
   STREIT, Justice.

This appeal concerns the interpretation of a will executed more than forty years ago. The question presented is whether the 1962 will of John and Helen Graham was a mutual will. We must decide whether the Grahams’ will was in effect a contract to divide up their earthly possessions in equal shares to their three daughters. The district court ruled the will was not mutual. As a consequence, the court found Helen could change her will after her husband’s death without incurring liability to two daughters she disinherited. Because we find the will was mutual, we reverse and remand with instructions.

I. Facts and Prior Proceedings

John and Helen Graham, a married couple, had three daughters: Charlene, Dorothy, and Mary. In 1962, John and Helen executed a joint will in which they each promised to leave everything to whoever survived; at death, the survivor would give everything to their three daughters in equal shares. The 1962 will named Charlene executor of the survivor’s estate.

In 1972, John passed away. Neither John nor Helen changed the 1962 will before John’s death.

In 1987, Helen executed a codicil to the 1962 will. The codicil retained the equal distribution of assets to the daughters but provided that Charlene’s share would be held in trust for her benefit. Upon termination of the trust, the codicil directed the trustee to distribute the remaining principal and income to Susan, Charlene’s daughter. The trust was designed so Charlene would remain eligible to receive financial assistance from the government. The codicil also removed Charlene as executor, substituting Mary in her stead.

All three daughters contemporaneously signed a separate agreement in which they approved of the codicil’s changes to the 1962 will. Helen did not sign the agreement, but the codicil expressly referenced it, noting that “[a]ll of the heirs named in [the 1962 will] have entered into an Agreement approving and agreeing with the changes.... ”

In 1999, Helen executed a new will that revoked all prior wills she had previously made. In the 1999 will, Helen effectively disinherited her three daughters. Helen gave the bulk of her estate to her granddaughter Susan, whom she also appointed executor. Susan had lived with Helen in Osceola and cared for her grandmother in her last years.

In 2002, Helen died. She left an estate valued at approximately $70,000. Susan, as executor of her grandmother’s estate, admitted the 1999 will into probate.

Mary and Dorothy sued their mother’s estate and Susan individually. The daughters claimed the 1962 will was a “mutual will” and sought a declaration that Helen breached her contractual obligations when she died having executed the 1999 will. The daughters asked the court to set aside the 1999 will and impress a trust upon the estate in favor of the beneficiaries of the 1962 will. The daughters also asked the court to remove Susan as executor and appoint Mary instead.

The parties filed competing motions for partial summary judgment. The district court granted the defendants’ motion and denied the daughters’ motion; relying upon the language of the preamble of the will, the court ruled the will was not a mutual will.

II. Scope and Standards of Review

Review of a ruling on a motion for summary judgment is for correction of errors at law. Barreca v. Nickolas, 683 N.W.2d 111, 116 (Iowa 2004). Summary judgment is proper

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

Iowa R. Civ. P. 1.981(3). We are obliged to view the record in the light most favorable to the nonmoving party and must afford that party all reasonable inferences. Barreca, 683 N.W.2d at 116.

III. The Merits

A. Contractual Will

The question presented in this appeal is whether the Grahams’ 1962 will is a mutual will. A mutual will (more transparently referred to as a “contractual will”) exists “only when there is evidence sufficient to show a binding agreement as to disposal of the property of the makers in a certain way.” Father Flanagan’s Boys’ Home v. Turpin, 252 Iowa 603, 608, 106 N.W.2d 637, 640 (1960); see also Duhme v. Duhme, 260 N.W.2d 415, 419 (Iowa 1977); In re Estate of Chapman, 239 N.W.2d 869, 871 (Iowa 1976); In re Estate of Ryder, 219 N.W.2d 552, 554 (Iowa 1974). Evidence is sufficient only if it is clear and convincing. See Ryder, 219 N.W.2d at 554 (“[T]he executor had the burden of proving by clear and convincing evidence that the instrument was intended to be [a] mutual will .... ”); accord Sawyer v. Sawyer, 261 Iowa 112, 118, 152 N.W.2d 605, 609 (1967) (“clear and satisfactory evidence”); In re Estate of Ramthun, 249 Iowa 790, 799, 89 N.W.2d 337, 342 (1958) (“clear, satisfactory and convincing”). “A mere preponderance of the evidence is not sufficient.” Ramthun, 249 Iowa at 799, 89 N.W.2d at 342. A more exacting quantum of proof is required because of

the serious and far-reaching consequences of such an agreement, which may have the effect of preventing the surviving spouse from altering his or her estate plan to suit intervening changes in circumstances ... that may render provisions of the contractual wills inappropriate or unfair, so much so that the deceased spouse, had he or she lived, would have desired or sanctioned appropriate changes in the testamentary provisions.

Lamberg v. Callahan, 455 F.2d 1213, 1218 (2d Cir.1972). A mutual will is in essence a “contract as to irrevocability.” See Father Flanagan’s Boys’ Home, 252 Iowa at 610, 106 N.W.2d at 641.

Whether a given will is a contractual will can be a difficult matter to decide. A history of shifting legal definitions and standards have not helped matters. As a noted commentator once remarked, “[t]he contractual will in Iowa is a thicket of perplexity upon whose thorns the supreme court has frequently found itself impaled.” N. William Hines, Freedom of Testation and the Iowa Probate Code, 49 Iowa L.Rev. 724, 738 (1964). Fortunately, the present state of the law is now relatively clear and settled.

Matters were helped on January 1, 1964 when the Iowa Probate Code became effective. See Iowa Code ch. 633 (2001); see also id. §§ 633.1 (short title), 633.2 (effective date). “In order to avoid the complexities and uncertainties of litigation involving [contractual] wills, [section] 633.270 was enacted.” 1 Sheldon F. Kurtz, Kurtz on Iowa Estates § 4.52, at 216 (3d ed.1995) [hereinafter Kurtz], That section of the probate code expressly provides that in Iowa “[n]o will shall be construed to be contractual or mutual, unless in such will the testator shall expressly state the intent that such will shall be so construed.” Iowa Code § 633.270. In other words, extrinsic evidence of testator intent is not permitted; the evidence must be found within the four corners of the will itself. Chapman, 239 N.W.2d at 871 (when the probate code applies, “the evidence to establish a mutual will must be found in the instrument itself’); In re Estate of Prehoda, 309 N.W.2d 516, 520 (Iowa Ct.App. 1981); see, e.g., Floerchinger v. Williams, 260 Iowa 53, 56-60, 148 N.W.2d 410, 412-14 (1967) (considering only text of will itself and not extrinsic evidence). The reason for the rule is clear: “[t]hose who desire mutual wills are required to say so since theirs is the unusual rather than the usual intent.” Floerchinger, 260 Iowa at 58, 148 N.W.2d at 413 (quoting bar committee comment).

Although the Grahams’ 1962 will was executed before the effective date of the probate code, the parties agree the provisions of the probate code apply to the present dispute. The rights of beneficiaries under a contractual will do not accrue or vest until one of the testators dies. Id. at 59-60, 148 N.W.2d at 412-14; see Iowa Code § 633.2(2) (enactment of probate code shall not impair any “accrued or vested right”). Because John died after the effective date of the probate code, section 633.270 applies to this case. Compare Floerchinger, 260 Iowa at 59-60, 148 N.W.2d at 412-14 (section 633.270 applied to will executed in 1963 because testator died after the effective date of probate code), with Sawyer, 261 Iowa at 119, 152 N.W.2d at 610 (same section did not apply when one testator died before effective date).

The district court ruled the 1962 will was not a contractual will. The court focused upon the preamble to the will, which stated:

We, the undersigned, John R. Graham and Helen E. Graham ... mutually agree, each in consideration of the promise and act of the other, to revoke all wills by us heretofore made, and to dispose of our property in the manner hereinafter set forth; and we do make, publish and declare the following as our joint and several wills ....

(Emphasis added.) Although the district court recognized the phrases “mutually agree” and “each in consideration of the promise and act of the other” supported the conclusion that the parties intended their joint will to be contractual, the court seized upon the fact that the parties referred to the document as their “joint and several wills.” The court pointed out “several” is commonly defined as “separate,” “exclusive,” or “relating separately to each individual involved.” The court ruled “[t]his language represents the most specific ... indication of the parties’ intent regarding the mutual or individual character of the instrument” and, as a consequence, concluded the 1962 will was not contractual. The court contrasted the language in the Grahams’ will with that in the preamble to a contractual will in another case which referred to the testators’ “joint and mutual wills.” See Chapman, 239 N.W.2d at 872-73 (emphasis added).

We disagree with the district court’s conclusion; the Grahams’ 1962 will is clearly a contractual will. The most specific indication of the testators’ intent can be found in their use of the phrases “mutually agree” and “each in consideration of the promise and act of the other.” In the former phrase the Grahams specifically stated their mutual intent; in the latter they expressly recorded for posterity that their joint will was the product of consideration, insofar as each made certain promises in the will to the other. The 1962 will revoked all prior wills and provided for the full disposition of the surviv- or’s property. Each testator promised that if he or she survived the other, he or she would dispose of the property in equal shares to their three daughters; put differently, each testator promised to forbear from changing the terms of their joint will after the other spouse died. “[T]he mutual promises alone of [married testators] to dispose of their jointly owned property in a manner satisfactory to each of them is good consideration....” Id. at 872 (concluding the spouse who died first “got what he wanted,” i.e., “the contractual assurance that, if he should die first, his property would go according to his wishes”); see also Kurtz § 4.52, at 213 (“The consideration for the contract is generally the reciprocal disposition in each will but it may also be the forbearance of each to dispose of his property in another manner.”). Clear and convincing evidence of the Grahams’ intent to form a contractual will is plainly found within the four corners of their joint will. Cf. Prehoda, 309 N.W.2d at 520 (finding contractual will where testators agreed the survivor would dispose of a single asset in a certain way). “Where, as here, the will itself states there is an agreement the evidence of, or facts of the agreement, appears on the face of the will. We cannot disregard it.” In re Estate of Logan, 253 Iowa 1211, 1216, 115 N.W.2d 701, 705 (1962).

The defendants rejoin that the reference in the preamble to the will as the testators’ “joint and several wills” mandates a contrary conclusion. We do not agree. “The fact that the parties declared the document to be their ‘several will’ as well as their ‘joint will’ does not necessarily negate an intention to enter into a binding contractual relationship.” In re Estate of Richardson, 11 Wash.App. 758, 525 P.2d 816, 818 (1974). The defendants overemphasize the use of this one word; when construing a will, a court must look at the intent of the parties as expressed in the entire document.

In ascertaining the intent of the testator, which is the guiding light in will interpretation, we rely primarily on the language contained in the will; however, the substance and intent, rather than the words, are to control. To ascertain the substance and intent we examine the entire will ....

Russell v. Johnston, 327 N.W.2d 226, 229 (Iowa 1982) (emphasis added). “[E]ach part should be considered,in relation to every other part and all provisions given effect unless clearly in conflict with some positive rule of law.” Logan, 253 Iowa at 1217, 115 N.W.2d at 705. The plain effect of the defendants’ interpretation is to completely discard the use of the phrases “mutually agree” and “each in consideration of the promise and act of the other.” “No part of the will,” however, “should be discarded without sound reason.” Id. Fortunately, a more reasonable and harmonious interpretation of the word “several” is readily available.

The term “several” has a number of meanings depending upon the context in which it is used. In the present case, “several” is paired with “joint.” A joint will, of course, is defined as “a single testamentary instrument constituting the wills of two or more persons, jointly executed.” Father Flanagan’s Boys’ Home, 252 Iowa at 607, 106 N.W.2d at 639. We have also pointed out that a joint will is “in effect the separate will of each maker, and generally may be separately probated on the death of each.” Id. When read in context of the entire document, we think the use of “joint and several” in the 1962 will must mean the will, to be probated on the death of each testator, comprises the intentions of John and Helen together and individually.

Not surprisingly, support for this interpretation of the phrase “joint and several” can be found in the law of contracts. “Copromisors are liable ‘jointly’ if all of them have promised the entire performance which is the subject of the contract.” 12 Richard A. Lord, Williston on Contracts § 36:1, at 610 (4th ed.1999).

When a ‘several’ obligation is entered into by two or more parties in one instrument, it is the same as though each has executed separate instruments.... [E]ach is bound separately for the performance which he or she promises, and is not bound jointly with anyone else.

Id. at 611. A “joint and several” contract “is a contract with each promisor and a joint contract with all, so that parties having a joint and several obligation are bound jointly as one party, and also severally as separate parties at the same time.” Id. at 611-12. In the context of the Grahams’ will, then, “several” means “personal,” “individual,” or “separate” but not “noncontractual” or “nonmutual.” See id.; see also Healey v. Story, 3 Exch. 2, 3 (1848) (“severally” is equivalent to “personally”); cf. Young v. Bierschenk, 199 Iowa 309, 311, 201 N.W. 591, 594 (1925) (referring to a joint and several contract as a contract that binds each promisor personally to the full amount of the contract); Bayers v. Chi., Rock Island & Pac. Ry., 52 Iowa 478, 478, 3 N.W. 522, 522 (1879) (same); Linder v. Lake, 6 Iowa 164, 168 (1858) (“A joint obligation and right, may co-exist with a several obligation, or right; for there may arise from the same contract, one joint duty to all, and also several joint duties to each of the parties.” (Citation omitted.)). A “joint and several will” thus binds each testator jointly and personally to its provisions. The Grahams’ statement in the 1962 will that the will was their “joint and several wills” does not trump other language in the will that unequivocally evidences its contractual nature. While Iowa Code section 633.270 requires such intent to be expressly stated within the four corners of the will, it does not mandate use of certain magic words. Nor does it proscribe any words.

We have, previously declared a will with language nearly identical to this will’s language to be a contractual will. In Logan, we were asked to decide, inter alia, whether a will that contained the phrase “mutually agree each in consideration of the promise and act of the other” in its preamble was a contractual will. 253 Iowa at 1212, 115 N.W.2d at 702-03. The testators in Logan also declared the will to be their “joint and several wills.” Id. at 1213, 115 N.W.2d at 703. Although we did not discuss the import of this latter phrase, we nonetheless held the will was a contractual will. Id. at 1216, 115 N.W.2d at 704-05. We also note the reports of decisions from other jurisdictions contain contractual wills that employ the self-identifying phrase “joint and several wills” or similar language. See, e.g., Ill. Masonic Children’s Home v. Flynn, 109 Ill.App.3d 744, 65 Ill.Dec. 334, 441 N.E.2d 126, 128-29 (1982); Wilke v. Thomas, 295 S.W.2d 283, 283 (Tex.Civ.App.1956); Sipple v. Zimmerman, 39 Wis.2d 481, 159 N.W.2d 706, 708 (1968); Doyle v. Fischer, 183 Wis. 599, 198 N.W. 763, 763 (1924).

Because we hold the 1962 will is a contractual will, we need not consider the circumstances surrounding the execution of the codicil and agreement in 1987 as further evidence that the 1962 will was contractual.

B. Remedy

Having determined the Grahams’ 1962 will is a contractual will, we must now determine its effect upon the codicil and the 1999 will. The daughters claim a contractual will cannot be revoked and suggest we set aside probate of the 1999 will in favor of the 1962 will as amended by the codicil. In the alternative, the daughters ask that we impress a trust upon the estate in favor of the beneficiaries of the 1962 will and appoint Mary executor.

While a contractual will is a contract as to irrevocability, it may be revoked. In this sense, a contractual will is like any other contract; contracts, as they say, are made to be broken. As we wrote in Chapman,

A will becomes effective only at the testator’s death. Until that time, it may always be revoked. This rule is not changed because, in revoking a will, the testator may violate a contract not to do so.
This does not mean the testator may escape his contractual obligations by the expedient of revoking a will designed to carry them out. It simply means the remedy lies elsewhere. Under various circumstances courts have allowed damages for breach of contract, decreed specific performance in an equitable action, and impressed a trust on the testator’s property for the benefit of those favored in [a] repudiated mutual will.

239 N.W.2d at 872-73 (citations omitted). But see Duhme, 260 N.W.2d at 419 (while all testators are living, any testator may revoke contractual will without incurring liability to beneficiaries if notice is given to the other testators). “The ambulatory nature of a will is not changed merely because in revoking the mutual will the contract is breached.” Kurtz § 4.52, at 216.

When she died with the 1999 will, Helen broke her contractual obligations to the beneficiaries under the 1962 will which she had jointly and mutually executed with her late husband. As in Chapman, we think the appropriate remedy is to impress a trust upon the property owned by Helen at the time of her death in favor of the beneficiaries under the 1962 will. 239 N.W.2d at 873. Susan, the executor, shall distribute this property in accordance with the terms of that instrument, as amended by the codicil, in order to enforce the rights of the beneficiaries. See id. We do not think it proper, however, to replace Susan as executor, because the original appointment of Charlene as executor was not a material term of the Grahams’ contractual agreement.

IV. Conclusion

The Grahams’ 1962 will is a contractual will, notwithstanding reference in its preamble to its “joint and several” nature. A trust shall be imposed upon all property-owned by Helen at the time of her death in favor of the beneficiaries under the 1962 will as amended by the codicil. Susan shall distribute the corpus of the trust accordingly.

All costs shall be assessed against the estate and not Susan individually.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Three days after filing suit, Dorothy died. Dorothy’s daughter, Julie, was appointed executor of her estate and took Dorothy's place in the present action.

      . In addition, the daughters requested the district court set aside probate of the 1999 will because, they alleged, it was the product of undue influence and Helen lacked testamentary capacity when it was executed. The district court did not rule on the issues of undue influence and lack of testamentary capacity. We do not discuss them further.

      . Pre-probate code cases holding otherwise are no longer good law in this respect. See, e.g., In re Estate of Logan, 253 Iowa 1211, 1216, 115 N.W.2d 701, 704 (1962) ("The proof may be by extrinsic evidence or it may appear on the face of the wills.”).

      . In Richardson, the Washington Court of Appeals remanded for a factual finding on the issue of agreement. Richardson is distinguishable in this respect, however, because (1) the will in that case did not expressly state it was ''mutual” or ''contractual” and (2) while the will referred to an exchange of "conditions," extrinsic evidence — apparently admissible at the time in Washington— seemed to indicate there was not such an agreement.

      . The defendants correctly point out Logan is a pre-probate code case and attempt to distinguish it for this reason. The enactment of section 633.270, however, only served to place a bar on the use of extrinsic evidence. The court in Logan did not rely on extrinsic evidence to reach the conclusion that the will was contractual.

        . Although this opinion nearly moots the issues of undue influence and lack of testamentary capacity concerning the 1999 will, we do not reach these issues.


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. James Harold SMITH, Appellant.
    No. 03-1663.
    Supreme Court of Iowa.
    Dec. 17, 2004.

      Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Sue Swan, Assistant County Attorney, for appellee.
   LARSON, Justice.

The principal issue in this case is whether the defendant “escaped” under Iowa Code section 719.4(1) (2003) when he left the courthouse after sentencing in an earlier case and failed to appear at the sheriffs office as ordered by the court. The district court found the defendant guilty, and we affirm.

I. Facts and Prior Proceedings.

In a case that preceded the present escape case, James Smith was sentenced to prison for third-offense OWI, a felony. The sentencing court advised Smith, “you are to be committed to the custody of the director of the State Department of Corrections.” The court continued:

I have ordered that you are to be directly transported by the Black Hawk County Sheriff to the Iowa Medical and Classification Center to serve the ... prison sentences imposed by the court. I will order that you are to immediately surrender yourself to the Black Hawk County Sheriff following this hearing.

Then the judge addressed Smith’s defense counsel: “Mr. Fiester, I’ll ask that you surrender your client to the Black Hawk County Sheriff and inform the sheriff that the order will be coming forthwith.” Counsel responded, “We’ll walk over.”

After the hearing, Smith made several phone calls from a courthouse pay phone. After ten or fifteen minutes, his lawyer realized he was scheduled for another hearing. He explained the situation to a court attendant and asked her to call a deputy sheriff to escort Smith to jail. The lawyer left. Once alone, Smith fled the courthouse and did not return.

Smith was charged with escape under Iowa Code section 719.4, which provides:

1. A person convicted of a felony, or charged with or arrested for the commission of a felony, who intentionally escapes, or attempts to escape, from a detention facility, community-based correctional facility, or institution to which the person has been committed by reason of the conviction, charge, or arrest, or from the custody of any public officer, public employee, or any other person to whom the person has been entrusted, commits a class “D” felony.

Subsections 2, 3, and 4 of section 719.4 define other types of escape, but those provisions are not relevant here.

The defendant argues the evidence was insufficient to support a finding of escape under section 719.4(1), and the sentencing court in the OWI offense abused its discretion by requesting the defendant’s attorney to escort the defendant to the sheriffs office.

II. Application of the Escape Statute.

A conviction under section 719.4(1) requires proof that (1) the defendant had been convicted of a felony, and (2) he “intentionally escape[d]” from an “institution to which the person has been committed” or “from the custody of any public officer, public employee, or any other person to whom the person has been entrusted.” Iowa Code § 719.4(1); accord State v. Wagner, 596 N.W.2d 83, 86 (Iowa 1999). The district court ruled that Smith violated the statute on two grounds: he escaped after being committed to the State Department of Corrections, and he had escaped from the custody of the Black Hawk County Sheriff “and/or” the defendant’s attorney, “who were public officers or employees” under the statute.

In State v. Breitbach, 488 N.W.2d 444 (Iowa 1992), we construed the custody requirement of section 719.4(1) as it had evolved through the legislative process and our earlier cases, including State v. Burtlow, 299 N.W.2d 665 (Iowa 1980). Breitbach, 488 N.W.2d at 449-50. In Burtlow the defendant was charged with violating section 719.4(1) because he had failed to return from work release. We held that, while this would have been a violation of subsection 3 of section 719.4, it was not a violation of subsection 1. Burtlow, 299 N.W.2d at 669. In reversing Burtlow’s conviction, we said:

We believe subsection one [the subsection charged in Smith’s case] is intended to apply [to] unauthorized departures from physical restraint.- In those cases a danger of injury to persons or property exists. When the offense is a mere failure to return from an authorized release, no such danger exists. It is reasonable to conclude the legislature intended to punish breaches of physical restraint more severely.

Id. (emphasis added). Smith seizes on the “physical restraint” language of Burtlow to argue that he was not in custody because he was not physically restrained in the sense he had been handcuffed or otherwise incapacitated or confined.

In Breitbach we clarified the “physical restraint” language of Burtlow, saying:

[W]e did not mean in Burtlow that custody for purposes of subsection 1 must involve actual physical contact with the arrestee. Instead, “physical restraint,” as that term is used in Burtlow, is necessarily involved whenever an individual either is or would be subjected to immediate physical restraint if an attempt to flee from the authorities was made. An arrest is clearly such a situation. In recognition of this fact, the escape statute explicitly characterizes an escape by a felony-arrestee as a subsection 1 violation.

Breitbach, 488 N.W.2d at 449.

In Breitbach officers went to the home of Breitbach’s girlfriend, where they attempted to serve an arrest warrant on him. Id. at 445. The officers waited outside the house while Breitbach went inside to talk to his girlfriend. Breitbach suddenly came out of the house, jumped off the porch, and fled. Id. We held that, under the test set out above, Breitbach was in custody because he was subject to immediate physical restraint by fleeing from the officers. Id. at 449-50. Smith now argues that he was not physically restrained at the time he bolted, and under Breitbach, “immediate physical restraint” is required. This is a misreading of Breit-bach. In that case, we said custody is established if the individual “is or would be subjected to immediate physical restraint if an attempt to flee from the authorities was made.” Id. at 449. This is consistent with State v. Eads, 234 N.W.2d 108, 111 (Iowa 1975), in which we said “[c]ustody begins when an arrest is made and continues until the defendant is lawfully discharged.”

Under Smith’s argument, he could have fled during the sentencing hearing itself without being guilty of escape because he was not “physically restrained” in the narrow sense he advocates. The court’s order, however, ordered Smith to report to the sheriff, a “public officer” “to whom the person has been entrusted.” Smith would have been subject to immediate physical restraint at the time he fled, and therefore, for purposes of the escape statute, he was in custody under the Breitbach test.

III. The Abuse of Discretion Argument.

Smith’s second argument surely must be tongue-in-cheek. He argues that the district court, in the earlier OWI case, had abused its discretion by allowing Smith to be accompanied from the courthouse by his lawyer, and this somehow justified his escape. He argues the temptation to bolt was just too great; “the flesh is weak and in this circumstance, without the presence of a deputy, who ... would not take advantage of the opportunity to quietly and peacefully leave?”

This argument suffers from two major defects: first, the decision to flee was Smith’s, not his attorney’s or the court’s. Any connection between the court’s actions and Smith’s flight is tenuous at best. Second, the earlier OWI sentencing was purely collateral to his present case, and any challenge to the court’s exercise of discretion in the earlier case may not be raised in this one. We reject Smith’s abuse-of-discretion argument.

AFFIRMED.


author: TERNUS, Justice.

text:
    STATE of Iowa, Appellee, v. Todd H. REINDERS, Appellant.
    No. 02-1932.
    Supreme Court of Iowa.
    Dec. 17, 2004.

      Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant Attorney General, John P. Sarcone, County Attorney, and Charles Kenville, Assistant County Attorney, for appellee.
   TERNUS, Justice.

In his criminal prosecution for possession of a controlled substance, the defendant, Todd Reinders, sought to suppress evidence discovered by the police when officers questioned him and searched him after observing him walking along a city street in the middle of the night. The district court overruled his motion to suppress, and he was subsequently convicted of the drug charge. His conviction was affirmed by the court of appeals and this court granted further review. Upon our review of the record and consideration of the parties’ arguments, we affirm.

I. Background Facts and Proceedings.

On July 23, 2002, at approximately 2:30 a.m., two Urbandale police officers were traveling in the 7400 block of Hickman Road in Urbandale, Iowa when they noticed the defendant walking westward. No businesses were open at this hour, and the defendant was not dressed in typical workout attire. Based upon these facts and the officers’ knowledge there had been numerous car burglaries in the area, the officers decided to approach the defendant and talk to him.

The patrolmen, Officer Meskimen and Officer Dobbins, stopped their vehicle several feet behind the defendant and approached the defendant on foot as he walked through a K-Mart parking lot. The officers questioned the defendant about what he was doing and explained they were asking because there had been recent burglaries in the area. Reinders told the officers that he was walking home from a friend’s house. The officers then asked for identification, but the defendant had none. In response to the officers’ request, the defendant supplied them with a false name, birth date, and social security number. Officer Dobbins then went to the patrol car to check on whether there were any outstanding arrest warrants for the name given by Reinders.

About this time a third patrolman, Officer Pettit, arrived. He had just finished a traffic stop and came to the scene when he noticed the other officers were talking to the defendant. Pettit joined Meskimen as Meskimen was questioning the defendant.

According to Officer Meskimen, he— Meskimen — asked the defendant if the defendant had any weapons on him, and Reinders replied that he had a kitchen knife in his pocket. Meskimen then asked whether he could search the defendant’s pockets, and the defendant said he could. At this point Reinders started to pull the knife out of his pocket, but Meskimen told the defendant he — Meskimen—would retrieve the knife. Meskimen then took the knife out of the defendant’s pocket. Me-skimen testified that since Reinders had consented to a search of his pockets, Me-skimen reached in a second time and pulled out some foil that contained a powdery substance later identified as methamphetamine.

Officer Pettit had a slightly different recollection. He agreed that Officer Me-skiinen had asked the defendant whether the defendant had any weapons, and the defendant had responded that he had a kitchen knife in his pocket. When Rein-ders proceeded to pull the knife out of his pocket, Meskimen told Reinders that he— Meskimen — would retrieve the knife. After obtaining Reinders’ permission to do so, Meskimen reached into the defendant’s pocket and pulled out the knife. According to Officer Pettit, Meskimen asked the defendant if he had anything else they should be concerned about, and the defendant said no. Meskimen then asked Rein-ders if Meskimen could search the defendant, and Reinders responded, “go ahead and search,” or something to that effect, simultaneously raising his arms. Meski-men then discovered the foil packet in Reinders’ pocket.

Officer Dobbins filed a written report of the incident, and his report coincides more closely with the testimony of Officer Me-skimen. Dobbins stated in his report:

Officer Meskimen then asked the suspect if he had any weapons on him. Suspect stated that he did have a kitchen knife on him in his pocket. Officer Meskimen then asked the suspect if he could have permission [to] search his pockets, the subject stated “yes.” Officer Meskimen then retrieved the knife and a piece of foil containing a pink powdery substance to wit: Methamphetamine.

Reinders was arrested and charged with possession of a controlled substance in violation of Iowa Code section 124.401(5) (2001). He filed a motion to suppress the drugs found in his pocket, asserting the stop and search violated his constitutional right to be free of unreasonable searches and seizures. The defendant argued in his motion that a reasonable person in his position would not have felt free to leave when asked for identification. He also contended in his motion that he had not given consent to a search of his pocket.

The court overruled the defendant’s motion to suppress, concluding the officers were justified in stopping the defendant because there was “cause to reasonably believe there might have been criminal activity involved [based on] the time of night, location of the defendant, [and] recent criminal activity.” The court found the later search of Reinders’ pocket was consensual.

The case was subsequently submitted to the court for a trial on the minutes of testimony. The court found the defendant guilty as charged, gave him a suspended sentence, and placed him on probation for one year. Reinders filed this appeal, which we transferred to the court of appeals. That court concluded the deféndant was not seized during his questioning by the officers, and the search of his pocket did not violate Reinders’ constitutional rights because he had consented to the search. We granted Reinders’ application for further review.

II. General Principles of Law.

“The Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution protect persons from unreasonable searches and seizures.” State v. Cline, 617 N.W.2d 277, 281 (Iowa 2000), overruled on other grounds by State v. Turner, 630 N.W.2d 601, 606 n. 2 (Iowa 2001). Evidence obtained in violation of these provisions is inadmissible “no matter how relevant or probative the evidence may be.” State v. Predka, 555 N.W.2d 202, 205 (Iowa 1996). Because the federal and state search-and-seizure clauses are nearly identical, the construction of the federal constitution is persuasive in our interpretation of the state provision. See State v. Olsen, 293 N.W.2d 216, 219 (Iowa 1980) (citing Bierkamp v. Rogers, 293 N.W.2d 577, 579 (Iowa 1980)). Decisions of the United States Supreme Court interpreting the Fourth Amendment are not, however, binding on this court with respect to the Iowa Constitution. Id. Because we have found no basis to distinguish the protections afforded by the Iowa Constitution from those afforded by the federal constitution under the facts of this case, our discussion of the merits of the defendant’s suppression motion applies equally to the state and federal grounds. See State v. Lewis, 675 N.W.2d 516, 522 (Iowa 2004).

This court’s review of a district court’s ruling on a claim that the State has violated a defendant’s constitutional right to be free of unreasonable searches and seizures is de novo. State v. Maddox, 670 N.W.2d 168, 171 (Iowa 2003). In assessing alleged violations of constitutional rights, we independently evaluate the totality of the circumstances shown in the record. Cline, 617 N.W.2d at 280. We give deference to the district court’s findings of fact “due to its opportunity to assess the credibility of witnesses, but we are not bound by those findings.” Turner, 630 N.W.2d at 606. The State must prove by a preponderance of the evidence that a search or seizure was lawful. State v. Bumpus, 459 N.W.2d 619, 622 (Iowa 1990).

III. Legality of Stop.

“ ‘The Fourth Amendment’s protection against unreasonable intrusions on a person’s liberty arises when an officer seizes a person.’ ” State v. Pickett, 573 N.W.2d 245, 247 (Iowa 1997) (citation omitted). “A seizure occurs when an officer by means of physical force or show of authority in some way restrains the liberty of a citizen.” Id. Police questioning by itself, however, is generally not a seizure. See Hiibel v. Sixth Judicial Dist. Ct., 542 U.S. -, -, 124 S.Ct. 2451, 2458, 159 L.Ed.2d 292, 302 (2004); INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247, 255 (1984). The United States Supreme Court has held:

Law enforcement officers do not violate the Fourth Amendment’s prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen. Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage — -provided they do not induce cooperation by coercive means.

United States v. Drayton, 536 U.S. 194, 200-01, 122 S.Ct. 2105, 2110, 153 L.Ed.2d 242, 251 (2002). An individual’s response in such situations is considered consensual, even though the person has not been advised that he is free to refuse to respond. Id. at 203, 122 S.Ct. at 2112, 153 L.Ed.2d at 253; Delgado, 466 U.S. at 216, 104 S.Ct. at 1762, 80 L.Ed.2d at 255. “Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment.” Delgado, 466 U.S. at 216, 104 S.Ct. at 1763, 80 L.Ed.2d at 255. Clearly, though, when a citizen exercises his right to refuse to answer questions and the authorities take additional steps to elicit the requested information, a seizure or detention has occurred. Id. at 216-17, 104 S.Ct. at 1763, 80 L.Ed.2d at 255.

Turning to the present case, we note the defendant concedes no seizure occurred when the officers first approached him. He claims, however, that he was, in effect, detained when they asked him for identification because under the totality of the circumstances “no reasonable individual would have felt free to simply walk away and refuse to answer the officer’s questions.” We conclude the defendant’s position is not supported by the principles set forth above or by our own case law.

This court recently held under circumstances similar to those present here that no seizure occurs when an officer merely asks for identification. See State v. Smith, 683 N.W.2d 542, 543 (Iowa 2004). In Smith, a deputy sheriff stopped a vehicle after the driver failed to stop at a stop sign. Id. After issuing the driver a citation, the deputy approached Smith, who was seated in the front passenger seat, and asked for identification. Id. Smith gave the deputy a non-operator identification card issued by the Iowa Department of Transportation, and the deputy then returned to his vehicle to relay Smith’s identification information to his dispatcher. Id. Upon being informed there was an outstanding arrest warrant for Smith, the deputy placed him in custody. Id. While searching Smith incident to arrest, the deputy discovered a packet of methamphetamine. Id.

In his later criminal prosecution for possession of a controlled substance, Smith was successful in suppressing the methamphetamine based on a claim that the deputy unconstitutionally detained him after completing the traffic stop. Id. at 544. We reversed on appeal, holding the deputy had not “violated the Fourth Amendment when he asked Smith for identification and checked for outstanding warrants.” Id.

We find no basis to distinguish the case before us from Smith. As in Smith, there was no show of authority, no intimidation, and no use of physical force by the officers in their encounter with Reinders. The officers simply engaged him in conversation and asked for identification. The defendant willingly answered the officers’ questions and provided identifying information. Under the circumstances of this case, the officers’ conduct did not constitute a restraint on Reinders’ freedom to walk away. Therefore, we conclude the defendant was not seized prior to the search of his pocket. We turn, then, to a discussion of whether the officer’s search of Reinders was constitutional.

IV. Legality of Search.

A warrantless search • violates the Fourth Amendment “unless it falls within a recognized exception.” Exceptions include: “(1) consent to search; (2) the presence of probable cause and exigent circumstances; (3) objects in plain view; or (4) search conducted incident to a lawful arrest.”

State v. McConnelee, 690 N.W.2d 27, 30 (Iowa 2004) (citations omitted). The only exception implicated by the facts of the case before us is consent.

Consent may be express or implied. It may take a verbal form, or be found in gestures or other non-verbal conduct. In addition, consent to a search may be limited or qualified. Law enforcement authorities conducting the search are constrained by such limitations or qualifications. The scope of consent is determined by what a “typical reasonable person [would] have understood by the exchange between the officer and the suspect.”

Id. (citations omitted). The validity of consent does not depend on a particular defendant’s knowledge that he had a right to refuse permission for the search. Drayton, 536 U.S. at 207, 122 S.Ct. at 2114, 153 L.Ed.2d at 255; Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 421, 136 L.Ed.2d 347, 355 (1996).

The defendant contends he did not consent to a search of his person. He argues Officer Meskimen told the defendant that Meskimen would remove the knife, and the defendant then raised his arms to facilitate the officer’s retrieval of the knife. But the testimony of all three officers was to the contrary. Although their recollections varied as to whether Officer Meskimen asked the defendant if he could search the defendant before or after removing the knife from Reinders’ pocket, they all testified Meskimen asked for permission to search the defendant and the defendant gave the requested permission. The district court found this testimony to be credible and we defer to that court’s assessment. Therefore, we, like the district court, conclude the defendant consented to the search of his pocket. Consequently, his Fourth Amendment rights were not violated by the warrantless search.

V. Conclusion.

The defendant was not seized when the officers asked for identification and checked for outstanding warrants. The subsequent search of the defendant was conducted after he gave his consent. Therefore, the trial court did not err in denying the defendant’s motion to suppress. Accordingly, we agree with the court of appeals that the defendant’s conviction must be affirmed.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.

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


author: TERNUS, Justice. WIGGINS, J.,

text:
    The ESTATE OF Bryson HAGEDORN By Its Administrator, Dawn HAGEDORN, Dawn Hagedorn and Pete Hagedorn, Individually, Appellants, v. Jeffry PETERSON, and North Iowa Mercy Health Center, Inc. d/b/a Mercy Family Clinic-Spencer, Appellees.
    No. 03-1794.
    Supreme Court of Iowa.
    Dec. 17, 2004.

      Michael J. Galligan and Richard H. Doyle of Galligan, Doyle & Reid, P.C., Des Moines, Jim Fitzsimmons of Fitzsimmons & Vervaeeke Law Firm, Mason City, and Kathleen J. Beebout of Beebout Law Firm, West Des Moines, for appellants.
    Roberta M. Anderson of Schroeder & Anderson, Mason City, for appellees.
   TERNUS, Justice.

This action was brought by the parents of an infant who died shortly after his premature birth. The plaintiffs claim the jury’s verdict in favor of the physician who rendered prenatal care to the child’s mother was contrary to the evidence and failed to render substantial justice. They also claim error in the trial court’s decision to instruct the jury that the locality of the defendant’s practice may be considered in determining the applicable standard of care and that the defendant’s conduct was not to be judged with the benefit of hindsight. After reviewing the record and considering the arguments of the parties, we affirm.

I. Background Facts and Proceedings.

The plaintiff, Dawn Hagedorn, was in her thirty-third week of pregnancy when she experienced significant bleeding on Saturday afternoon, March 6, 1999. Hage-dorn went to the Spencer Municipal Hospital where she was treated by the physician on call, defendant Jeffry Peterson, a family practitioner. Dr. Peterson suspected the plaintiff had a placental abruption, a maternal hemorrhage that posed serious risks to the fetus and the mother if it progressed. The defendant decided to monitor Hagedorn’s condition while making arrangements for her transfer to a tertiary care center offering specialized services for high-risk deliveries. Dr. Peterson was aware that if the abruption progressed to the point the baby was not receiving adequate oxygen, he would have roughly fifteen minutes to deliver the baby by cesarean section to avoid permanent injury to the child. Because Dr. Peterson did not perform cesarean sections, he began making phone calls to line up personnel who could deliver the baby and assist in the infant’s resuscitation if that became necessary. Dr. Peterson did not, however, actually mobilize a surgical team at this time.

After various diagnostic procedures and monitoring functions were performed, Dr. Peterson was reassured that the patient’s condition was stable, and he was hopeful that she could be safely transported to a hospital in Sioux Falls, South Dakota. But while he was on the phone talking with a specialist at the Sioux Falls hospital, the baby’s heart rate dropped precipitously. Dr. Peterson called for an emergency cesarean section, and the surgical team was assembled. The baby was delivered thirty minutes later and was then transferred to Sioux Falls by a neonatal transport team that had been dispatched when the emergency arose. The child, Bryson Hagedorn, died the next evening.

The plaintiffs, the estate of Bryson Hagedorn and his parents, Dawn and Pete Hagedorn, sued Dr. Peterson and his employer, defendant Mercy North Health Center, Inc. d/b/a Mercy Family Clinic-Spencer. We will refer only to Dr. Peterson as the defendant, but our discussion will apply to the clinic as well.

This case was tried to a jury in April and May 2003. The trial, a classic battle of the experts, centered on the conflicting testimony of the plaintiffs’ experts and the defendant’s experts. The plaintiffs’ experts were critical of several aspects of Dr. Peterson’s care, but most significantly of his failure to assemble a surgical team to stand by at the hospital for an emergency cesarean section should the baby’s oxygenation become compromised. They believed that had a surgical team been ready, the baby could have been delivered within ten to fifteen minutes instead of over thirty minutes, and the baby’s chances of survival would have been good.

Dr. Peterson testified that at a community hospital, such as the one in Spencer, physicians do not call in a surgical team until surgery is actually needed. He said human resources are limited in rural Iowa, and in some eases a physician is on call fifty percent of the time. Consequently, on-call personnel are summoned only when it is certain that their services will be required. The defense experts echoed Dr. Peterson’s testimony and conclusions. They confirmed that in rural Iowa surgical teams are not assembled on a standby basis; when personnel are limited, having them on standby may disrupt the on-call providers’ attention to' other matters. As one physician simply summarized, “We don’t have that many personnel.”

The jury returned a verdict in favor of the defendant, specifically finding that the defendant was not negligent. The plaintiffs subsequently filed a motion for new trial on four grounds: (1) the verdict was contrary to the evidence under Iowa Rule of Civil Procedure 1.1004(6); (2) the verdict failed to effect substantial justice; (3) the court erroneously instructed the jury on the locality rule; and (4) the court erroneously included a “hindsight” standard in the instructions. The trial court denied the plaintiffs’ posttrial motion, and the plaintiffs then filed this appeal.

II. Was the Jury’s Verdict Sustained by Sufficient Evidence and Did It Effect Substantial Justice?

Although the insufficiency of the evidence and a failure to effect substantial justice are independent grounds for challenging a jury verdict, we discuss them together because the plaintiffs’ argument in support of both claims is identical. Iowa Rule of Civil Procedure 1.1004(6) authorizes the trial court to grant a new trial when the verdict “is not sustained by sufficient evidence” and the movanfe substantial rights have been materially affected. Because the sufficiency of the evidence presents a legal question, we review the trial court’s ruling on this ground for the correction of errors of law. See Estate of Long ex rel. Smith v. Broadlawns Med. Ctr., 656 N.W.2d 71, 88 (Iowa 2002) (stating court’s review depends on grounds asserted in motion for new trial; if legal question, review is on error); cf. Heinz v. Heinz, 653 N.W.2d 334, 338 (Iowa 2002) (reviewing for correction of errors at law trial court’s grant of directed verdict on the basis of insufficient evidence).

In addition to the grounds for granting a new trial set out in rule 1.1004(6), the trial court has inherent power to set aside a verdict when the court concludes “the verdict fails to administer substantial justice.” Lehigh Clay Prods., Ltd. v. Iowa Dep’t of Transp., 512 N.W.2d 541, 543 (Iowa 1994). We review the court’s ruling on a motion for new trial based on this ground for an abuse of discretion. See id. at 544. To show an abuse of discretion, the complaining party must show “the court exercised its discretion ‘on grounds clearly untenable or to an extent clearly unreasonable.’ ” Id. (citation omitted). “As used in this context, ‘[ujnreasonable’ means not based on substantial evidence.” Channon v. United Parcel Serv., Inc., 629 N.W.2d 835, 859 (Iowa 2001).

The plaintiffs contend the jury’s verdict was not sustained by the evidence and did not render substantial justice because Dr. Peterson admittedly knew an emergency cesarean section might be necessary, yet did not call in the required personnel to stand by for an immediate delivery even though he could have done so. Asserting “[n]o society is free to choose to ignore the life of a child,” they in essence argue the court should conclude the defendant’s choice was unreasonable as a matter of law. The trial court was unpersuaded by this argument, noting there was “a significant disagreement between the experts who testified in this case” on whether “Dr. Peterson’s failure to immediately assemble the surgical team” breached the applicable standard of care. The court concluded it was the jury’s duty to resolve this conflict, and so the court denied the plaintiffs’ motion for new trial.

We agree with the trial court that there is sufficient evidence to support the jury’s decision that Dr. Peterson was not negligent. Although the plaintiffs contend the defendant’s experts were not credible, the credibility of witnesses is peculiarly the responsibility of the fact finder to assess. See Top of Iowa Coop. v. Sime Farms, Inc., 608 N.W.2d 454, 468 (Iowa 2000). We also find no basis to conclude the trial court acted unreasonably or on an untenable basis in refusing to interfere with the jury’s decision. The reasonableness of the defendant’s actions was the proper subject of expert testimony and ultimately was for the jury’s assessment. See Cowan v. Flannery, 461 N.W.2d 155, 157 (Iowa 1990) (stating jury should ordinarily be allowed to decide disputed fact questions). Under these circumstances, it was not the trial court’s role to unilaterally determine the standard of care owed by the defendant to the plaintiffs. Therefore, we find no abuse of discretion in the court’s decision to deny a new trial. See Kautman v. Mar-Mac Cmty. Sch. Dist., 255 N.W.2d 146, 147 (Iowa 1977) (finding no abuse of discretion in trial court’s failure to grant new trial where there was conflicting medical testimony on primary issue).

III. Locality Instruction.

The trial court gave the following instruction to the jury:

A physician must use the degree of skill, care, and learning ordinarily possessed and exercised by other physicians in similar circumstances. The locality of practice in question is one circumstance to take into consideration but is not an absolute limit upon the skill required.

The plaintiffs object to the last sentence of this instruction for two reasons: (1) “[t]he ‘locality’ rule is not the law of Iowa”; and (2) “the evidence did not support inclusion of a locality factor.”

We review the court’s decision to give the challenged instruction for correction of .errors of law. See Anderson v. Webster City Cmty. Sch. Dist., 620 N.W.2d 263, 265 (Iowa 2000). Error in giving an instruction will not warrant reversal unless the objecting party has been prejudiced by the instruction. See Kurth v. Iowa Dep’t of Transp., 628 N.W.2d 1, 5 (Iowa 2001).

The locality rule in its original form provided that “a physician is bound to use that degree of knowledge, skill, care and attention ordinarily exercised by physicians under like circumstances and in like localities.” McGulpin v. Bessmer, 241 Iowa 1119, 1129, 43 N.W.2d 121, 126 (1950) (emphasis added); accord Whitesell v. Hill, 101 Iowa 629, 636-37, 70 N.W. 750, 751 (1897). It was formulated over 100 years ago “to protect rural practitioners presumed to be less adequately informed than their colleagues in the city.” Amy Jurevic Sokol and Christopher J. Molzen, The Changing Standard of Care in Medicine, 23 J. Legal Med. 449, 476 (2002) [hereinafter “Sokol Article”]; accord Bartimus v. Paxton Cmty. Hosp., 120 Ill.App.3d 1060, 76 Ill.Dec. 418, 458 N.E.2d 1072, 1077 (1983); Hall v. Hilbun, 466 So.2d 856, 868 (Miss.1985), superseded by statute on other grounds as noted in Narkeeta Timber Co. v. Jenkins, 777 So.2d 39, 42 (Miss.2000). In Iowa, the rule was also intended to equitably account for differences in physicians’ ability to develop skill in their profession due to “the greater or lesser opportunities afforded by the locality, for observation and practice.” Smothers v. Hanks, 34 Iowa 286, 289-90 (1872). Finally, the rule allowed the fact finder to take into account differences in physicians’ “access to the latest technology.” Sokol Article, 23 J. Legal Med. at 474.

Over time, courts began to abandon the rule as a strict limitation on the skill and care required of a physician. See Speed v. State, 240 N.W.2d 901, 907 (Iowa 1976). This court followed suit and held in McGulpin that the locality in which the physician practices was but one circumstance to be considered in determining whether he or she exercised reasonable care; this circumstance was not, however, “an absolute limit upon the skill required.” 241 Iowa at 1131, 43 N.W.2d at 128; accord Vergara v. Doan, 593 N.E.2d 185, 187 (Ind.1992) (stating locality of practice is “but one of the factors to be considered in determining whether the doctor acted reasonably”); cf. Dickinson v. Mailliard, 175 N.W.2d 588, 596-97 (Iowa 1970) (modifying locality rule as it applies to hospitals, stating hospitals are held to standard of care of hospitals operating “under similar circumstances”; standards and practices of hospitals in the particular community and similar communities are only one consideration, and are not conclusive). Our adherence to this qualification of the locality rule was reaffirmed in Speed. 240 N.W.2d at 908.

Although the availability of medical knowledge has become more universal across the United States, the locality rule has retained validity in its other aspects. See, e.g., Gambill v. Stroud, 258 Ark. 766, 531 S.W.2d 945, 948 (1976) (stating similarity depends not on size or location of community, but on “medical facilities, practices and advantages” available in community); Hall, 466 So.2d at 872 (noting “there remains a core of validity” to the locality rule with respect to the “medical facilities, services, equipment and options ... reasonably available” to a physician); Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 361, 366 (Tex.1987) (“The purpose of the locality rule is to prevent unrealistic comparisons between the standards of practice in communities where resources and facilities might vastly differ.”). Thus, pertinent to the case before us, the facilities, personnel, services, and equipment reasonably available to a physician continue to be circumstances relevant to the appropriateness of the care rendered by the physician to the patient. See Hall, 466 So.2d at 873 (stating “physician’s duty of care must take into consideration the quality and kind of facilities, services, equipment and other resources available”). Therefore, we reject the plaintiffs’ contention that the locality rule is not the law in Iowa.

The plaintiffs also assert as error the trial court’s failure to define “locality of practice,” arguing this omission invited misapplication of the law by the jury. They contend that once the court chose to instruct on the locality rule, it should have informed the jury that the location of the defendant’s practice was pertinent in this case only to the extent it affected the resources reasonably available to him.

Even if an explanation of the locality-of-practice factor would have assisted the jury, we do not think the plaintiffs were prejudiced by the court’s failure to define this phrase under the facts of this case. The primary dispute in this case centered on whether Dr. Peterson should have called a surgical team to the hospital as soon as it became apparent that Dawn Hagedorn might have a placental abruption. The plaintiffs’ experts testified the surgical personnel should have been summoned sooner so they would be immediately available in case it became necessary to perform a cesarean section. The defendant and his experts claimed, however, that assembling a standby surgical team was not a reasonable option due to the limited medical personnel available in the community. Thus, as the plaintiffs acknowledge in their brief, the only way in which the locality of Dr. Peterson’s practice was relevant in this case was in a resource-based sense. Given the clear focus of the experts’ disagreement, we do not see how the jury could have been misled by the court’s instruction. See Vergara, 593 N.E.2d at 188; see also Kiesau v. Bantz, 686 N.W.2d 164, 175 (Iowa 2004) (stating “if the instructions do not mislead the jury, there is no reversible error”).

As a final matter, the plaintiffs assert the evidence did not implicate the locality rule. See generally Peters v. Vander Kooi, 494 N.W.2d 708, 713 (Iowa 1993) (“The submission of instructions upon issues that have no support in the evidence is error.”). They contend the personnel needed to perform an immediate cesarean section were available to Dr. Peterson, and therefore, there was no resource-based limitation on his ability to comply with the standard of care requiring immediate delivery upon a complete abruption. In essence, they argue that because a surgical team could have been called to the hospital on a standby basis, reasonable care required that the surgical personnel be summoned even before surgery was determined to be necessary. But that was precisely the dispute between the experts: whether, given the limited medical personnel available in the community, a physician of ordinary skill and learning would have assembled a surgical team on a standby basis. This dispute implicated the resource component of the locality rule, and therefore there was record support for the court’s instruction.

IV. Hindsight Instruction.

The trial court gave the following instruction over the plaintiffs’ objection:

A physician’s conduct must be viewed in light of the circumstances existing at the time of diagnosis and treatment and not retrospectively. If a physician exercised a reasonable degree of care and skill under the circumstances as they existed, though not as seen in perfect hindsight, then the physician is not negligent.

The plaintiffs claimed at trial that this instruction, particularly the reference to hindsight, was “not proper,” was “projec-tional,” and was “not a uniform instruction in Iowa.”

This court has held that similar objections made to a comparable instruction given in a legal malpractice case were not sufficient to preserve error. See Grefe & Sidney v. Watters, 525 N.W.2d 821, 825 (Iowa 1994). In Watters, the court instructed the jury that the lawyer’s professional conduct was “to be judged in the light of all the surrounding circumstances existing prior to and during [the lawyer’s] representation, and not according to any hindsight.” Id. The plaintiffs attorney objected to this instruction and a related instruction on the basis they were “not the law of Iowa and [were] not part of the uniform jury instructions.” Id. On appeal, we held these objections were “not sufficiently definite” to preserve error. The same conclusion is warranted here. See also Winckel v. Von Maur, Inc., 652 N.W.2d 453, 458 (Iowa 2002) (holding objections that instruction was “not a part of any standard instructions” and was not “appropriate” were “inadequate”), abrogated on other grounds by Barreca v. Nicholas, 683 N.W.2d 111, 121 (Iowa 2004); Moser v. Stallings, 387 N.W.2d 599, 604 (Iowa 1986) (stating party’s trial objection that instruction “was erroneous, without stating the reason why it was erroneous, was not sufficiently specific to [preserve error]”); Rudolph v. Iowa Methodist Med. Ctr., 293 N.W.2d 550, 561 (Iowa 1980) (holding objection that instruction “is a misstatement of the law” did not preserve error); Yeager v. Durflinger, 280 N.W.2d 1, 8 (Iowa 1979) (holding objection that “instruction ‘is not a proper statement of Iowa law ... preserves nothing”).

Finding no reversible error in the submission of this case or the trial court’s rulings, we affirm.

AFFIRMED.

All justices concur except WIGGINS, J., who concurs specially, LAVORATO, C.J., and STREIT, J. who join the special concurrence.

WIGGINS, J.,

(special concurrence).

I agree with the majority that the locality rule is still a part of medical-malpractice jurisprudence in Iowa. In today’s society, a physician in rural Iowa should possess the same skill, care, and ordinary learning as a physician from any metropolitan area in this country. Physicians have the benefit of continuing medical education and access to medical journals allowing physicians to stay up to date on the latest methods of diagnosis and treatment. The availability of facilities, equipment, and resources of a locality are circumstances a jury can consider to determine whether a physician used the degree of skill, care, and learning ordinarily possessed and exercised by other physicians in similar circumstances.

I also think a court should not give an instruction that incorporates the locality rule, because the uniform jury instruction adequately covers the rule. See Vachon v. Broadlawns Med. Found., 490 N.W.2d 820, 824 (Iowa 1992) (holding an instruction incorporating the honest mistake doctrine did not constitute reversible error; however, we found it prejudicial enough that in future trials the court should not give such an instruction in a malpractice case).

We have adopted the following guidelines in drafting instructions:

1. Instructions should not marshal the evidence or give undue prominence to any particular aspect of a case;
2. Courts, when instructing the jury, should not attempt to warn against every mistake or misapprehension a jury may make;
3. Jurors must be left to their intelligent apprehension and application of the rules put forth in the instructions.

Stover v. Lakeland Square Owners Ass’n, 434 N.W.2d 866, 868 (Iowa 1989). As with the honest mistake instruction, the instruction given in this case gave undue prominence to the locality rule. A jury can consider the facilities, equipment, and resources available to the physician at the time of the physician’s diagnosis and treatment simply by applying the language of the instruction, requiring the jury to decide whether a physician used the degree of skill, care, and learning ordinarily possessed and exercised by other physicians in similar circumstances.

LAVORATO, C.J., and STREIT, J., join this special concurrence.

      . The record shows a cesarean section required a nurse anesthetist, a scrub nurse, a circulating nurse, a labor and delivery nurse, a surgeon, a physician to assist the surgeon, and a pediatrician for the baby.

      . Uniform Jury instruction 1600.2 states, "[a] physician must use the degree of skill, care and learning ordinarily possessed and exercised by other physicians in similar circumstances.” See II Iowa Civ. Jury Instructions 1600.2 (1997).


author: HANSON, Justice.

text:
    Ronald Ralph GERDESMEIER, et al., Appellants, v. Jeffry Marc SUTHERLAND, Defendant, Illinois Farmers Insurance Company, applicant for intervention, Respondent, and Ronald Ralph Gerdesmeier, et al., Appellants, v. Illinois Farmers Insurance Company, Respondent.
    No. A03-07.
    Supreme Court of Minnesota.
    Dec. 16, 2004.
    Thomas A. Klint, William J. Marshall, Gary T. LaFleur, Abcock, Neilson, Man-nella, LaFleur & Klint, Anoka, MN, for Appellant.

      Paul W. Godfrey, Yotel, Anderson & McEachron, St. Paul, MN, for Respondent.
    Heard, considered, and decided by the court en banc.
   OPINION

HANSON, Justice.

Appellant Ronald Gerdesmeier was injured by an uninsured motorist. After submitting an uninsured motorist (UM) claim with his insurer, Respondent Illinois Farmers Insurance Company (Farmers), Gerdesmeier and his wife, Mary, brought a tort action against the uninsured motorist. When default judgment was entered in favor of the Gerdesmeiers in the tort action, they presented the judgment to Farmers and demanded payment. Farmers declined and, for the first time, demanded arbitration of the UM claim. The Gerdesmeiers brought suit on the policy and the district court granted judgment on the pleadings for the Gerdesmeiers, holding that Farmers had notice of and an opportunity to intervene in the tort action and that its failure to do so prevented it from compelling arbitration. The court of appeals reversed, holding that the arbitration clause required the parties to arbitrate the UM claim despite the default judgment in the tort action. Gerdesmeier v. Sutherland, No. A03-7, 2008 WL 22999402 at *1-*3 (Minn.App. Dec. 23, 2003). We reverse the decision of the court of appeals and reinstate the judgment in favor of the Gerdesmeiers.

On December 6, 2000, Ronald Gerdes-meier was injured when an automobile 'driven by Jeffry Marc Sutherland struck the automobile in which Gerdesmeier and his wife, Mary, were riding. The Gerdes-meiers’ automobile insurance with Farmers included $100,000 of UM coverage. Counsel to .Sutherland’s mother informed Gerdesmeiers’ counsel that Sutherland was uninsured. In the months following the accident, the Gerdesmeiers sent several letters to Farmers, informing it of Sutherland’s uninsured status and their intention to assert a UM claim. Farmers sent a letter to the Gerdesmeiers requesting that all further correspondence be sent to a named claims adjuster. The Gerdesmeiers sent the claims adjuster all requested documents, including medical and accident reports.

On December 3, 2001, approximately 1 year after the accident, the Gerdesmeiers sued Sutherland. The Gerdesmeiers immediately informed Farmers of this suit and of Sutherland’s status as an uninsured motorist. On July 9, 2002, after Sutherland had defaulted, the Gerdesmeiers also notified Farmers that they would move for default judgment against Sutherland. Farmers did not intervene in the action against Sutherland, did not oppose the motion for default judgment against Sutherland, and did not demand arbitration. On September 11, 2002, the district court granted default judgment in favor of the Gerdesmeiers and against Sutherland for $118,934.24.

The Gerdesmeiers sent Farmers a copy of the default judgment against Sutherland and requested payment up to the UM policy limit of $100,000. Farmers refused, asserting that it was not bound by the default judgment because the Gerdesmei-ers did not submit the claim to mandatory arbitration. The Gerdesmeiers sued Farmers and then moved for judgment on the pleadings. Farmers defended that it was not bound by the default judgment and demanded arbitration. Farmers also moved to intervene in the Sutherland action and to set aside the default judgment against Sutherland. The district court denied both of Farmers’ motions and granted judgment on the pleadings to the Gerdes-meiers for $100,000.

The court of appeals affirmed the denial of Farmers’ motions to intervene and to vacate the default judgment. Gerdesmeier, 2003 WL 22999402 at *4-*5. But the court reversed the judgment in favor of the Gerdesmeiers, holding that the Ger-desmeiers were bound by the arbitration clause in the insurance policy and should have demanded arbitration to determine the UM claim. Id. at *3. The Gerdesmei-ers sought further review to consider (1) whether Farmers is entitled to enforce the UM arbitration clause after the insured already has obtained judgment against the uninsured motorist or (2) whether Farmers waived its right to compel arbitration under the UM policy by not demanding arbitration until after default judgment was obtained against the uninsured motorist.

The court of appeals rested its decision on this court’s holding in Dunshee v. State Farm Mutual Automobile Insurance Co., 303 Minn. 473, 228 N.W.2d 567 (1975), and the Uniform Arbitration Act, Minn.Stat. § 572.08 (2002). In Dunshee, the issue was whether the scope of the arbitration of a UM claim should be decided by the arbitrator or the court. 303 Minn. at 477, 228 N.W.2d at 570. We held that the Uniform Arbitration Act applies to disputes involving arbitration provisions in UM policies. Dunshee, 303 Minn. at 483, 228 N.W.2d at 573. We concluded that the legislative intent, as reflected in the Uniform Arbitration Act, was to “discourage litigation and to foster speedy, informal, and relatively inexpensive procedures for the voluntary resolution of dispute[s],” without the interference of the court. Dunshee, 303 Minn. at 481-82, 228 N.W.2d at 572-73. We concluded that questions about the scope of arbitration of a UM claim were to be decided by the arbitrator. Id. at 482, 228 N.W.2d at 572.

Implicit in our Dunshee decision was the conclusion that arbitration clauses in UM policies are valid and enforceable. Thus, the court of appeals relied on Dunshee to conclude that Farmers’ arbitration clause was valid and enforceable. Gerdesmeier, 2003 WL 22999402 at *2-3. But the court of appeals went beyond Dunshee when it held the arbitration provision enforceable even after the insured had obtained judgment against the uninsured motorist. It stated that

[allowing the insured to obtain and then enforce a default judgment against insurers when the policy provides for arbitration would allow insureds to circumvent the mandatory arbitration provisions.

Id. at *3.

The Gerdesmeiers argue that the court of appeals improperly relied on Dun- shee because Dunshee addressed only the issue of the general validity of a UM arbitration provision and did not address the conflict between that provision and a judgment obtained by the insured against the uninsured motorist. As to that conflict, the Gerdesmeiers argue that this case is controlled by Malmin v. Minnesota Mutual Fire & Casualty Co., 552 N.W.2d 723 (Minn.1996), and Kwong v. Depositors Insurance Co., 627 N.W.2d 52 (Minn.2001).

In Malmin, we held that a consent-to-sue clause in underinsured motorist insurance (UIM) was invalid and the insurance company was bound by the default judgment obtained against an underinsured motorist. 552 N.W.2d at 727-28. We said that

forcing the insured to relitigate his or her claim against a tortfeasor simply because the insured neglected to obtain written consent from the insurer violates the public policy behind our No-Fault Act and erects unnecessary barriers to the insured’s recovery of UIM benefits.

Id. at 728. We concluded that a requirement that a victim of an automobile accident relitigate a UIM claim in arbitration after having already obtained a judgment against the underinsured motorist would be contrary to the purposes of the No-Fault Act to provide prompt payment, to speed claims administration, and to ease the burden of litigation. Malmin, 552 N.W.2d at 728.

In Kiuong, we held that a judgments-not-binding clause in UM insurance was not enforceable where the insured already had obtained a default judgment against the uninsured motorist. Kwong, 627 N.W.2d at 58. We reasoned as follows:

[T]he judgments-not-binding clause erects a barrier to the insured’s recovery of UM benefits that contradicts recognized No-Fault Act principles of providing prompt payment of benefits to injured parties and easing the burden of litigation. See Minn.Stat. § 65B.42 (2000). Kwong notified Depositors of the potential UM claim, sued the insured and uninsured motorists, notified Depositors of the commencement of litigation, obtained a valid default judgment against the uninsured motorists, and presented it to Depositors for payment. In barring the conclusiveness of this valid judgment as against Depositors, the judgments-not-binding clause delays the payment of UM benefits and forces Kwong to relitigate issues that have already been established in the underlying litigation, contrary to the purposes of the No-Fault Act.

Id. at 56. Thus, although the court of appeals determined that under Dunshee the arbitration clause was valid, the Ger-desmeiers argue that the clause’s effect, as applied to the present facts, is to erect an unreasonable barrier to the insured’s prompt recovery of UM benefits and require the insured to relitigate issues already established in the tort action.

We agree with the Gerdesmeiers that the purposes of the No-Fault Act preclude enforcement of the arbitration clause under these facts, where its use would delay payment to the victim and require relitigation of liability and damage issues already established by the judgment against Sutherland. We acknowledge that this case is more complex than Malmin and Kwong, because the UM arbitration clause is not invalid for all purposes and could be enforced if arbitration had been demanded before default judgment was obtained. But we hold that an arbitration clause will not be enforced to allow a UM insurer to avoid payment of damages established by a valid judgment against the uninsured motorist where, as here, the UM insurer has received notice of and had opportunity to intervene in the suit against the uninsured motorist.

At oral argument, Farmers raised a new argument, based essentially on collateral estoppel. In general, issues not raised below will not be considered on appeal. Ornes v. Allstate Ins. Co., 617 N.W.2d 401, 403 (Minn.2000). But in Oanes, we addressed a newly raised argument because of the case’s unusual procedural posture, there were no disputed facts that affected the question presented, and neither party was disadvantaged by the absence of a prior court’s ruling on the issue. Id. We concluded there, as we do here, that it is appropriate to address the argument even though the issue is not decisive of the case on the merits. Id.

Farmers asserted that, under Minnesota case law, an insured has been permitted to compel arbitration with its UM or UIM insurer even after having first obtained an unfavorable judgment in a suit with the uninsured or underinsured motorist (unfavorable meaning either finding no liability or assessing damages below the liability limits of the other motorist’s insurance). Farmers argued that the rationale of those cases, that no collateral estoppel effect will be given to the judgment unfavorable to the insured, applies equally to preclude giving collateral estoppel effect to a judgment favorable to the insured. Thus, Farmers argued, in order to defeat its right to compel the Gerdesmeiers to arbitrate their UM claim, we must overrule our case law recognizing the insured’s right to compel UM or UIM arbitration after receiving an unfavorable judgment in litigation with the other motorist. To support that position, Farmers cited Costello v. Aetna Casualty & Surety Co., 472 N.W.2d 324 (Minn.1991), Liberty Mutual Insurance Co. v. American Family Mutual Insurance Co., 463 N.W.2d 750 (Minn.1990), National Indemnity Co. v. Farm Bureau Mutual Insurance Co., 348 N.W.2d 748 (Minn.1984), and Milwaukee Mutual Insurance Co. v. Currier, 310 Minn. 81, 245 N.W.2d 248 (1976).

Although each of these cases is distinguishable, our fundamental disagreement with Farmers’ argument is that the rationale in Malmin and Kwong, which we apply here, is not based on the doctrine of collateral estoppel but on the policies underlying the No-Fault Act. Thus, neither Malmin nor Kwong relied on collateral estoppel as being the legal basis on which the UM or UIM insurer was bound by the liability and damages established in the judgment. To the contrary, in Malmin we quoted with approval this statement from Employers Mutual Companies v. Nordstrom, 495 N.W.2d 855, 858-59 (Minn.1993):

The tort judgment establishes conclusively the damages to which the claimant is “legally entitled”; if such damages exceed the tort insurance limits, the excess is payable by the underinsurer to the extent of its coverage without the need for arbitration. The underinsurer pays, not because it is estopped by the judgment, but because it has contractually agreed to pay the judgment less the tort liability insurance recovery.

Malmin, 552 N.W.2d at 726. And in Kwong, we held that the UM insurer was required to pay the damages established by a valid tort judgment because of the policies of the No-Fault Act, making no mention of collateral estoppel. Kwong, 627 N.W.2d at 58.

We recognize that, under our decision, a UM insurer is required to pay on the basis of a favorable tort judgment even though the UM insurer might not be able to avoid arbitration of a UM claim on the basis of an unfavorable tort judgment. But a favorable tort judgment is binding on the UM insurer not because of collateral es-toppel, but because of the overriding policies of the No-Fault Act. The UM insurer may not be able to take advantage of an unfavorable tort judgment because the policies underlying the No-Fault Act generally do not run to the insurer’s benefit.

Our decision does not leave the UM insurer without the ability to protect itself. As in Kwong, we have conditioned our ruling on the fact that Farmers’ interests were adequately safeguarded because Farmers received notice of the tort action and had the opportunity to intervene. If a UM insurer who has received notice of the tort action is concerned that the insured will orchestrate the UM claim to avoid arbitration and maximize the determination of damages in a tort action, the insurer can intervene in that action or initiate arbitration. Farmers did neither. Instead, it remained silent for more than 9 months between the commencement of the tort action and the entry of default judgment. In fact, Farmers did not seek to intervene or demand arbitration until more than 3 months after the tort judgment was entered.

We hold that the UM arbitration provisions will not be enforced to allow Farmers to avoid paying damages established by the tort judgment where Farmers received notice of and had an opportunity to intervene in the tort action.

Reversed.

ANDERSON, G. BARRY, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      . Although Farmers argues that it never received notice of this action or of the motion for default judgment, the district court found that Farmers received notice of the action against Sutherland and of the motion for default judgment. The court of appeals affirmed the district court's finding and Farmers did not seek review. Gerdesmeier, 2003 WL 22999402 at *4. For purposes of this appeal, therefore, it will be assumed that Farmers received notice of the action against Sutherland and of the Gerdesmeiers’ motion for default judgment.

      . Although the parties have argued the issues as though arbitration of this UM - claim was mandatory, this conclusion is not completely clear because arbitration is discussed in two sections of the policy and one of those sections limits mandatory arbitration to UM claims that are $5,000 or less. In Illinois Fanners Insurance Co. v. Glass Service Co., 683 N.W.2d 792, 798 (Minn.2004), we construed an identical policy provision as limiting mandatory arbitration to all claims of $10,000 or less, to be consistent with the $10,000 limit in section 65B.525 of the No-Fault Act. Because the parties have not argued otherwise, we will assume for this decision that the policy makes arbitration mandatory even where, as here, the claim exceeds $10,000.

      . Costello is actually contrary to Farmers’ argument because it held that collateral estop-pel did prevent the insured from compelling arbitration of his underinsured motorist claim where he had obtained judgment against the other motorist for less than the liability limits of the other motorist’s policy. Costello, 472 N.W.2d at 326-27. Liberty Mutual involved complex facts that included the assignment of the uninsured/underinsured motorist claim by the insured to the other motorist’s liability insurer, subrogation between an insured and an underinsured, and the effect of a settlement between two insurers. Liberty Mut., 463 N.W.2d at 753, 757-58. National Indemnity involved two insurers litigating issues of indemnity where the injured insured had already been compensated, and the arbitration was not contractual but was statutorily mandated. Nat’l Indem., 348 N.W.2d at 749-50. And Currier involved an accident that occurred before the No-Fault Act took effect and thus reflects different policy considerations. Although Currier held that an insured had the right to compel UM arbitration even after a jury found the insured to be 65% at fault for the accident, we did so because the tort action had been initiated by the uninsured motorist, not the insured, and the insurer informed the insured that it would not participate in the action against the uninsured motorist and would not be bound by the outcome because the insured's claim was subject to arbitration. Currier, 310 Minn. at 82-86, 245 N.W.2d at 249-51.


author: /s/Alan C. Page Associate Justice

text:
    Harold CYR, Respondent, v. WENSMANNS HOMES, INC., and Western National Mutual Insurance Company, Relators.
    No. A04-1705.
    Supreme Court of Minnesota.
    Dec. 22, 2004.

      Larry J. Peterson, Peterson, Logren & Kilbury, P.A., St. Paul, MN, Attorney for Relators.
    Joel C. Monke, Woodbury, MN, Attorney for Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed August 12, 2004, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/Alan C. Page Associate Justice

BLATZ, C.J., took no part in the consideration or decision of this case.


text:
    Henry L. WILSON, Relator, v. SCANLON INTERNATIONAL, INC., and State Fund Mutual Ins. Co., Respondents, and HealthPartners, Fairview Health Services, Allina Hospitals & Clinic/United Hospital, St. Paul Radiology, and Neurological Associates, Intervenors.
    No. A04-1862.
    Supreme Court of Minnesota.
    Dec. 22, 2004.
    Honorable Cheryl LeClair-Sommer, Compensation Judge, Office of Administrative Hearings Workers’ Compensation Division, Honorable Miriam P. Rykken, Workers Compensation Court of Appeals.
    William G. Moore, Reg., Fridley, MN, for Relator.
    Kim D. Amundson, Lynn, Scharfenberg & Associates, Minneapolis, MN, for Respondent Scanlon International, Inc., and State Fund Mutual Ins. Co.
    Health Partners, Inc., Fairview Health Services, Allina Hospitals & Clinic/United Hospital, St. Paul Radiology, Neurological Associates, Bloomington, MN, Intervenors.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed September 10, 2004, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

BY THE COURT:

/s/Russell A. Anderson Associate Justice

BLATZ, C.J., took no part in the consideration or decision of this case.


author: PAGE, Justice.

text:
    Eric William KOSKELA, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A04-568.
    Supreme Court of Minnesota.
    Dec. 23, 2004.
    Eric William Koskela, MCF — Stillwater, Bayport, MN, pro se Appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

PAGE, Justice.

A Hennepin County jury convicted appellant Eric William Koskela of first-degree burglary and first-degree felony murder for the August 5, 1990, death of Nicole Johnson. Koskela was sentenced to life in prison for first-degree felony murder and to a concurrent sentence of 21 months for burglary. State v. Koskela, 536 N.W.2d 625 (Minn.1995). On direct appeal, this court affirmed the convictions. Id. In March 2004, Koskela, representing himself, filed what he captioned as a “Memorandum and Motion to Dismiss For Lack of Subject Matter Jurisdiction,” along with an affidavit in support of the “Memorandum and Motion.” We read the “Memorandum and Motion” to allege that, because the statutes under which he was convicted do not contain an enacting clause or proper title, they are void. We further read the “Memorandum and Motion” to allege that, because the statutes are void, the court in which he was convicted lacked subject matter jurisdiction over him and, therefore, his conviction must be vacated. The district court summarily denied the motion and Koskela appealed to this court.

For purposes of this appeal, we will treat Koskela’s “Memorandum and Motion” as a petition for postconviction relief. See Minn.Stat. § 590.01, subds. 1, 2 (2002) (laying out procedure, after direct appeal has been taken, for a person convicted of a crime who claims that the conviction obtained or the sentence imposed violated his constitutional or statutory rights to obtain review). In this appeal, Koskela essentially repeats the arguments he made in the district court. In addition, he argues that one of the flags on display in the courtroom during his trial was improper and renders the verdict in his case invalid.

We will reverse the decision of a postconviction court only when that court abuses its discretion. Perry v. State, 595 N.W.2d 197, 200 (Minn.1999). Once a direct appeal has been taken, our decision in State v. Knaffla bars, in a subsequent postconviction proceeding, review of all claims raised or known but not raised on direct appeal. 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). The Knaffla bar includes all claims that the appellant should have known of at the time of direct appeal. King v. State, 649 N.W.2d 149, 156 (Minn.2002). The Knaffla bar has two exceptions: (1) claims that are so novel that their legal basis was not reasonably available at the time of direct appeal; and (2) claims in which the appellant presents facts showing that fairness requires that the claims be reviewed in the interests of justice. See Roby v. State, 531 N.W.2d 482, 484 (Minn.1995).

To the extent that Koskela’s “Memorandum and Motion” raises legally cognizable claims, those claims are barred by our Knaffla rule. Whether Minn.Stat. §§ 609.185(3) and 609.582, subd. 1 (1994), were enacted with a proper enacting clause and title could have been easily determined at the time of Koskela’s direct appeal and raised therein. Having not been raised therein, the claim is doomed. The same is true for Koskela’s claim regarding the courtroom flag.

Because we conclude that Koskela’s claims are barred by our decision in State v. Knaffla, we also conclude that the post-conviction court did not abuse its discretion in denying Koskela’s “Memorandum and Motion.”

Affirmed.

ANDERSON, G. BARRY, J., not having been a member of this court at the time of submission, took no part in the consideration or decision of this case.

      . The underlying facts of the case can be found in our opinion on direct appeal.

      . Specifically, Koskela states:
      Nothing can be regarded as a law in this State which fails to conform to the constitutional prerequisites which call for an enacting clause and title. There is nothing in the complaints which can constitutionally be regarded as laws, and thus there is nothing in them which I am answerable for or which can be charged against me. Since there are no valid or constitutional laws charged against me there are no crimes that exist, consequently there is no subject matter jurisdiction by which I can be tried in the above-named court.

      . Koskela’s claim is also doomed on its merits. Review of Laws of Minnesota for 1990, chapter 583, makes clear that Minn.Stat. § 609.185(3) was enacted with the proper enacting clause and title. Act of May 3, 1990, ch. 583, § 4, 1990 Minn. Laws 2198, 2201-02. Likewise, review of Laws of Minnesota for 1988, chapter 712, makes clear that Minn. Stat. § 609.582 was enacted with the proper enacting clause and title. Act of May 4, 1988, ch. 712, § 9, 1988 Minn. Laws 1649, 1654.

      . While we have disposed of this claim under Knaffla, we are compelled to note that the claim is wholly without merit. Moreover, there is nothing in the record before us that suggests that either claim is so novel that its legal basis was not reasonably available at the time of direct appeal or that the interests of justice require further review.